Monday, December 20, 2010

"Crime" and "Punishment" [FN1]

Semi-frequent commentator, political savant, and all around good guy Mark B., wait that's too obvious, let's call him M. Bell, has taken issue with IOZ's latest excoriation of Matt Yglesias, this time for Yglesias' statement that "[s]omewhat punitive post-arrest pre-trial measures are a kind of necessary evil, but the prolonged confinement of Manning under cruel conditions go beyond the necessary into straightforward evil." IOZ doesn't bother wading into the muck of the idea that "punitive [FN2] pre-trial," let alone pre-conviction, measures are a "kind of necessary evil," and notes simply that "[i]t is never necessary to do evil. It is always a choice." Yglesias either completely misunderstands a basic tenet of our criminal jurisprudence - specifically, that any pre-conviction limitations on the rights of the accused are not properly understood as "punishment" for misconduct, for by definition there has not been any misconduct so identified and adjudicated as such just yet, but rather they're more appropriately considered as a function of the criminal justice process [FN3] - or he is advocating for some kind of Panopticonally illiberal regime where things like evidence and trials and juries are not needed to punish people for crimes.

Regardless, Mark's and other commentators' point seems to be that "Yglesias is just arguing that Manning should receive the same kind of pre-trial detention that awaits other people facing charges." The position, it seems, is essentially that Manning shouldn't receive different treatment just because we may or may not support the particular potentially criminal act. I agree with this. In fact, I can't imagine anyone not agreeing with this.

IOZ clarifies his position a bit in a subsequent post:
The question "what is to be done with Private Manning," posed to me as if it presents an imponderable moral and practical conundrum that I have never considered, is irrelevant. It is, to use a phrase one of my regular commenter-critics recently reminded me of while criticizing me in comments, not even wrong. I do not care about the state's dilemma in dealing with Private Manning. I don't care about the state's dilemmas at all. The state will dispose of Private Manning as it sees fit. My interest is in the attitudes people take toward that state. Those who begin with the question of what the government should do with its enemies, even if their conclusion is some banal exhortation somehow to treat them humanely and fairly as it helps itself to their lives, are on the wrong side.
I don't think he explains himself or the idea very well, but the point is an important one. First, though it may be banal, the idea of bringing to justice those who commit criminal acts in a fair and humane way and only after the customary evaluation of evidence is rare enough to escape attention of many, our own Government as repeat, prime offender [FN4], and so is worth emphasis. Second, I think IOZ is making a different point, though. He's saying that because, perhaps generally but certainly specifically in this case, the State is illegitimate, because the State is driven by the narrow interests of unaccountable, private tyrannies (corporations) who endeavor to increase their own power and those of the State, because, as John Dewey put it, the State is "the shadow cast by business over society," because the State ultimately does what it wants, we the public should be less concerned with how the State chooses to punish the people who have brought to light its machinations and motivations and more concerned with the machinations and motivations themselves. Does the State have a right to prosecute those who have violated the terms of a confidentiality agreement it has entered into with? Absolutely. Does the State routinely violate international law and do a whole host of terrible things? Yes. While focus on these separate issues is not mutually exclusive, I am certainly more interested in one of these phenomena than the other.

Bradley Manning and Julian Assange are heroes who have shed light on a variety of State abuses and its fundamental role, function, and modus operandi. You can be sure that the State will punish them, brutally and accordingly.

FN1 - Alternate title - The Empire Strikes Back

FN2 - I won't even bother including reference to the totally useless and fairly comical modifier "somewhat" here. Light treason, anyone?

FN3 - This is all sort of related to the basic idea of "innocent before proven guilty."

FN4 - For example, the US made no real attempt to bring to justice the perpetrators behind the 9/11 attacks. Rather, their response was to bomb the fuck out of Afghanistan knowing it would kill tens of thousands of innocent civilians directly and create a humanitarian crisis of epic proportions that would kill many more. Conversely, after being the victim of CIA funded and sponsored attacks, Nicaragua did not set off bombs in Washington but rather appealed to the World Court for determination that the US was committing acts of terrorism, should stop such acts, and pay reparations for such acts. Of course, the US simply ignored the Court's order and intensified the violence.


Montag said...

Does the State have a right to prosecute those who have violated the terms of a confidentiality agreement it has entered into with? Absolutely.

all of this is FAKE. legitimacy is a useful fiction for the powerful. power is the only truth that defines these concepts (the state, rights, prosecution, agreements, legitimacy.)

imbroglioh said...

Well, uh, can't we just say that power is the only basis ever for supporting the right of one to act in a way that affects the rights of another? And this is certainly even more true with respect to the state. Regardless of the type of governance, power is the only thing that gives the governing the ability to govern. In the US this power derives from a sophisticated system of propaganda, in a totalitarian state it derives from pure force, and in a more just and free society it derives from public's belief that certain forms of organization and authority are justified and preferable. Of course legitimacy is a useful fiction for the powerful, but that does not necessarily mean that all forms of power (defined broadly to include the manifestation of freely informed community thought) are illegitimate.

Montag said...

oddly enough i just posted my thoughts on this the other day:

that said, i'd reject the notion of "right(s)" out of hand. especially using "power as a basis for supporting the right..." power is as power does.

if pressed i would admit to my opinions about legitimacy (see above,) however i don't know how they carry over to evaluating power structures like societies or states, which become illegitimate, in my estimation, the moment one single subject is no longer participating freely and voluntarily.