Blinding the Leviathan: the surveillance state and freedom

Surveillance cameras in Singapore

Surveillance cameras in Singapore (Photo credit: Wikipedia)

Governments use surveillance to keep their citizens safe and protect the regime. In that work, the government has to intrude into the lives of its citizens mainly in the public domain, in the pursuit of public order and safety, and occasionally in their private domain, in the course of national security. It is in the latter, that citizens have the greatest fear. They fear that the state’s national security driven digital surveillance will limit their personal autonomy or freedom in the digital domain. The citizens wants to treat the digital domain and their activity there as a private domain. The main concern is that when government agencies monitor the web for breaches of the law or for threats against national security, it has overreacted. The government has exceeded its authority as provided by the citizen’s consent. In other words, the social contract in which the citizen consents to the legitimate laws and the government protects the citizens and the common good when it enforces those laws has been skewed. The citizen believes the state is too intrusive in proportion to the threats it faces because it constrains the citizen.

Is the encrypted individual trapped in a digital cocoon?

In response to the threat from the apparent imbalance in the digital domain, citizens and corporations use encryption. The citizen encrypts their files and communications to protect their digital autonomy. With encryption, the citizen can create a private space that a government or corporation cannot penetrate easily. If the government or the corporation want to overcome the encryption, they have to justify it. Although national security may constrain the citizen’s legal ability to limit the government’s power to monitor them or overcome their encryption, the government is still subject to the rule of law. In a liberal democracy, even national security has to be justified in some way before the law and the community. However, the encrypted individual or the encrypted communication challenges the government’s authority and the primacy of the law within the social contract. The individual acts directly against the government to hold them to account rather than relying on their representatives, the political process, or the legal process. In the past, the individual would have to seek legal redress or political redress against surveillance. In domestic politics, the government justified its authority and its sovereignty through the rule of law, which reflects its legitimate political authority. The government acted to support the law and national security and it was only in the legal or political domain where the citizen could seek redress. In the digital domain, the individual can act directly. They can limit the government’s power by their individual use of encryption.

Outside the state, outside the rule of law?

Outside the state’s territorial boundary, the limit of its sovereignty, the government does not rely on the rule of law in the same way. In the international arena, a government cannot appeal to agreed or accepted standard to determine whether their behaviour is just. The community has a limited say in how the state behaves on its behalf. The digital domain cuts across domestic and international and this is why encryption proves problematic for the government.

Sovereignty in the digital domain: individual or state?

In political terms, the digital domain makes it difficult for a government to exercise its sovereignty or authority effectively or proportionately. In the digital domain, the state’s ability to differentiate between friend and enemy is blurred in a way that it is not in the physical domain. In the digital domain, the encrypted user can appear to be a friend or an enemy and the government has to make greater efforts to authenticate them. Previously, in the physical domain, the difference between friend and enemy was clear. Moreover, the government’s ability to distinguish friend from enemy allowed it to act proportionately in the domestic political domain. For example, the government does not call out the army to deal with a burglary. By contrast, in the external realm, where threats can be catastrophic, the government has to take a relatively disproportionate response. For example, if a plane does not obey the legal commands of an air traffic controller, the government will send up military aircraft to intercept it. Until the threat can be assessed and the government can differentiate between friend and enemy, the government will have to take a disproportionate response. The line between the domestic realm, which is considered peaceful, and the external realm, which is considered dangerous and full of threats, is the limit of sovereignty. In other words, sovereignty is what a government exercises when it distinguishes friend from enemy. As the digital domain transcends sovereignty or the domestic or foreign distinction, it presents a particular challenge to the government. Sovereignty is a central tenet of the modern social contract that began with Hobbes, however, the digital domain challenges that sovereignty.  In particular, the social contract, through Hobbes suggested that men would combine to create a commonwealth in which the sovereign, the Leviathan, would distinguish friend from enemy. The sovereign would take on that role to create a space of peace, inside the state, and protect its members from external threats. The individual would not have to worry about distinguishing between friend and enemy as the sovereign did that on their behalf.

When the law is blind, are you free?

I argue that encryption undermines liberalism. The state cannot enforce rights and sustain equality unless it can stop those who want to live beyond the reach of the law. As the law requires surveillance and encryption hinders that surveillance, the rule of law is weakened. The leviathan is blinded.

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January Break

Dear Subscribers,

I hope you had an excellent 2014 and I wish you a wonderful 2015. I am letting you know that I am taking a break from blogging until February. I have been writing three blogs over the past year and I wanted to pause and recharge. I thank you for reading the blog over the past year and I hope you will continue to follow it.

Look for future posts in February.

See you then.

All the best,

Lawrence

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Mapping the Daniel Morgan Murder: Thoughts on the Independent Panel

English: A photo of a traditional "blue l...

English: A photo of a traditional “blue lamp” as located outside most English police stations. This one is outside the Covent Garden Police Station of the Metropolitan Police in London. (Photo credit: Wikipedia)

Daniel Morgan’s murder haunts the Metropolitan Police Service. They failed to investigate it properly and that failure has raised serious questions about its integrity, judgement, and mandate. Despite five investigations and two trials, they have failed to bring his killer(s) to justice. They have admitted that justice is unlikely because police corruption has clouded the cases.[1] The public outcry over this injustice has increased over the years. The family has fought for 26 years for justice. What increased the pressure was the discovery that News of the World (NOTW) meddled in the case. Even though The Leveson Inquiry avoided the case, the evidence it revealed about the unhealthy relationship NOTW and the police helped to create the pressure for a public inquiry.

Even the Panel has been delayed in its work.

The public inquiry was set up in May 2013.[2] The terms of reference reflect the inquiry’s approach, which follows the Hillsborough inquiry’s model.  The approach is consensual so that people and organisations give documents or take part voluntarily. They cannot be forced to take part or provide documents. As the terms of reference set the scale, scope and seriousness of the review, they decide what it will deliver and what it will exclude.[3]

Terms of Reference

The terms of reference will look at three items.

  • Police involvement in the murder
  • The role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption
  • The incidence of connections between private investigators, police officers and journalists at the News of the World and other parts of the media and corruption involved in the linkages between them.

The first layer: looking at the police circle around Daniel Morgan’s Murder.

This post focuses on the first. Of the three aims, it is probably the easiest to answer. The police involvement in the murder that is known can be traced and explored. We know of certain points at which police officers intersected with Daniel Morgan and those associated with his murder. These connections can be mapped. However, that does not prove police were involved in his murder. We need more layers of analysis to understand this point.

The second layer: looking at who managed the officers.

A second level of analysis would have to look at how we find the extent to which police officers were involved. Here the focus is not on the direct involvement but on the indirect way the police are connected. The second layer is one where the police might have provided support or information to those associated with Daniel Morgan murder. In this layer, there is a deeper challenge as the panel tries to find who helped to undermine the investigations and how they helped to undermine it. The challenge is that the panel cannot escape the problem of incompetence. Some of the officers may have been incompetent or less competent in their tasks and not corrupt.

The third layer: those with no clear link to the murder or investigations

The third layer will be the most difficult to explore. The third layer is to look at the way that the police were involved indirectly. In this layer, the officer will have no immediate or clear contact with the case. Here the panel will have to disentangle the indirect contact of an officer who has no direct stake in the murder, or its investigation, but acts on behalf of those who, because of an existing relationship, are implicated or under suspicion.[4] If we look at the Catford Police station, where it has been alleged that officers were willing to murder, or arrange the murder of, Daniel Morgan we see possible links. The officers there would not have an immediate link to the murder or to those suspected or even to those involved in undermining the investigations. However, those officers and people who have intersected with the various parties will need to be identified and mapped. The case of any officers who had links to Catford would have to be investigated.[5] The past link to Catford and the role in the investigations of related matters can show us where a previous relationship might have been exploited. The relationship appears normal even though it was used to influence the murder investigation or related investigations. At this level, the existing issues within a relationship, such as help or involvement in unrelated operations, becomes an issue. An officer may have helped a friend with a case and one of the parties of interest calls on the favour. Thus, the normal or healthy relationships become a conduit for the corrupt practices. Here the work becomes most difficult, as the potential corrupt behaviour will blur into legitimate behaviour. Two secondary issues emerge. The first is how these relationships will be mapped. The second is how the Panel defines corruption. The rest of the blog covers the first point. The second point is a topic for another blog.

Mapping relationships through records

What we need to answer the first question, and all three questions, is a way to map the relationships.[6] These relationships are mainly in the past so old records such as HR files, complaint files, performance files, and arrest files are needed. The case revolves around records management issues. The integrity and completeness of the records management systems being access will be important[7]. As we have seen from the Home Office records review (The Wanless Report), this is likely to be problematic.[8] Even if the records are incomplete, relationships can be mapped. Once these relationships have been mapped the spheres of influence or possible influence can be shown. This map will help to answer the questions about police corruption and the third issue about where police and media have interacted.

Without a map, how do you find your way?

If the panel are not mapping the relationships, we have to ask how they are going to uncover these issues and the relationships. As there are many tools on the market to map social relationships, the panel can choose from a number of systems.[9] The police college instructs officers on this tool so the systems may already be in use.[10] If the panel decides they will not use them, it raises questions about their ability to deliver the terms of reference.

Access to records and records management will decide if the panel succeeds

The chokepoint will be access to records. If the organisations will not allow access to the relevant files, then the review will be impossible. The family have alleged that the Metropolitan Police have not cooperated with the Panel on providing records.[11] If the police are unwilling to allow to give the records needed for that mapping, the panel will have to decide whether they are receiving the proper help. If the police and other organisations do not cooperate, then the Hillsborough model is called into question.[12] If a cooperative model does not work, then the panel will have to review its approach, as it would be doomed to failure.

More questions to explore

If the panel decides to use a relationship or social network map, it will help them to answer the two remaining questions. How the other questions can be approached for the next essays.

 

[1] See Review into Operation Abelard II http://www.cps.gov.uk/publications/agencies/operation_abelard_II_report_may_2012.pdf

[2] See Theresa May’s statement here: https://www.gov.uk/government/speeches/daniel-morgan

[3] As we know from other reviews, such as the Kelly Inquiry, the Chilcot Inquiry, and the Leveson Inquiry; the terms of reference determine the questions and what will be excluded. The terms of reference show as much what the Government wants to do or avoid as it is trying to deliver something to the public. The terms of reference for the Daniel Morgan Independent Panel are found here: http://data.parliament.uk/DepositedPapers/Files/DEP2013-0776/DANIEL_MORGAN_-_FINAL_TERMS_OF_REFERENCE_-_080513.pdf

[4] Here we see the central problem of the service and the way that corruption can become endemic and institutionalized. I do not mean that every officer is corrupt. Indeed many are honourable men or women with a high level of integrity. Instead, I mean that the way the service is structured and works means that when corruption takes root it is harder to remove. The officers rotate through a variety of services and corrupt officers develop networks between commands within the Met. Overtime, the networks reinforce each other as officers either ensures their colleagues are promoted or protected without showing the immediate corrupt relationship because it is covered by the normal work and networking of a healthy organisation.

[5] See for example, this blog post where Catford becomes a point of contact for officers involved later in the investigations. http://brown-moses.blogspot.co.uk/2012/10/hackgate-andre-baker-hackgate-footnote.html Consider a more recent Catford corruption issue. http://www.dailymail.co.uk/news/article-2614068/A-gangster-left-rot-sealed-barrel-stench-corruption-goes-top.html

[6] The NYPD have improved the way they find problem officers by analyzing HR statistics and complaints. http://www.wnyc.org/story/can-the-nypd-spot-the-abusive-cop/

[7] We can see that the records from seven organisations will need to be considered. Each will have their own system and will have variable skills on records management. The police have faced serious challenges over their records management abilities.  http://www.theguardian.com/uk-news/2013/jul/16/cardiff-three-police-corruption-case-disclosures  One Daniel Morgan case collapsed because record were misplaced. http://www.walesonline.co.uk/news/wales-news/lost-police-evidence-helped-collapse-2031158 

[8] The Wanless report on historical records management issues at the Home Office and other departments can be found here: https://www.gov.uk/government/publications/the-peter-wanless-and-richard-whittam-qc-review my analysis of the report can be found here: https://lawrenceserewicz.wordpress.com/2014/11/17/records-management-and-the-wanless-report-on-home-office-files/

[9] There are a number of products on the market and they are always being updated. Here is a selection. http://en.wikipedia.org/wiki/Social_network_analysis_software

[10] See the UK College of Policing trains officers in these methods.  https://www.app.college.police.uk/app-content/intelligence-management/analysis/#network-analysis A basic map of some of the relationships can be seen at the bottom of this blog post. http://brown-moses.blogspot.co.uk/2012/05/operation-russia-corruption-and.html

[11] See this news story on the delay and disagreement over the protocol for disclosing the records to the panel. http://www.exaronews.com/articles/5426/daniel-morgan-murder-scotland-yard-obstructs-panel-inquiry

[12] The Daniel Morgan Independent Panel is based on the Hillsborough Inquiry Model, which relies upon a cooperative approach from all parties as no one can be forced to cooperate or provide documents. https://www.gov.uk/government/publications/hillsborough-independent-panel/hillsborough-independent-panel Such an approach can have success, but it may not provide all the answers. One needs to consider how the Lehman’s Brother’s collapse was investigated through informal interviews and not sworn depositions. http://jenner.com/lehman/VOLUME%201.pdf see pages 35-37.  However, it is important to understand that there are serious differences between the approaches by Hillsborough that will not work with the Daniel Morgan case. Consider the difference in the terms of reference. The focus is on disclosing information. http://hillsborough.independent.gov.uk/report/appendices/part-4/appendix-1/

The remit of the independent panel will be to:

  • oversee full public disclosure of relevant government and local information within the limited constraints set out in the accompanying protocol;
  • consult with the Hillsborough families to ensure that the views of those most affected by the tragedy are taken into account;
  • manage the process of public disclosure, ensuring that it takes place initially to the Hillsborough families and other involved parties, in an agreed manner and within a reasonable timescale, before information is made more widely available;
  • in line with established practice, work with the Keeper of Public Records in preparing options for establishing an archive of Hillsborough documentation, including a catalogue of all central Governmental and local public agency information and a commentary on any information withheld for the benefit of the families or on legal or other grounds;
  • produce a report explaining the work of the panel. The panel’s report will also illustrate how the information disclosed adds to public understanding of the tragedy and its aftermath.

A separate essay would be needed to compare and contrast the terms of reference to understand the differences including the issue that no open police cases depend on the Hillsborough Inquiry.

 

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The UK’s Praetorian Guards and Daniel Morgan’s Murder

A soldier of the Praetorian Guard, the army un...

A soldier of the Praetorian Guard, the army unit in which immunes were ranked. (Photo credit: Wikipedia)

Over the past few years we have been treated to a sorry spectacle in UK society. What we have seen is that those nominally called the guardians of the regime and the public interest, (the press, the politicians, and the police) have acted more as Praetorian Guards. Instead of protecting the public and the public interest from abuse, they have exploited them.

The problem, though, is not new. We find the same problems occurring under the decadent Roman Emperors. One could suggest that the decline in the press, police, and the politicians has occurred as the UK parliament has begun to resemble a royal court rather than a democratic parliament. Instead of fearing a presidential style politics, we should be considering the prime minister as an emperor in all but name. The parallels with imperial Rome are striking.

Who is today’s global delator?

The way the tabloid journalists, especially those at the News of the World, have operated reminds us of the ancient position of delator[1]. In Ancient Rome, the delator was an informer or informant. Today, the tabloid journalists, or their patron, have a similar role. They traffic in secret information often obtained illegally or through payments to informants. They trade information for financial, personal, or political profit. They also trade in it to harm people[2] and destroy reputations.[3]  Therein, we see how they can corrupt public guardians.[4] A junior police officer might traffic information for a financial gain. By contrast, a senior officer might traffic the information for political influence.[5] Even though one does it for financial profit and the other does it for political influence, both traffic information for the journalist. However, this only explains the role of the delator and how they corrupt the guardians. What we need to understand is how the guardians become praetorian guards

The Praetorian Guards only emerged with the modern media, the guardians always existed

The change from guardian to Praetorian Guard occurs slowly and less through intent and more from necessity. We can see this in the passage from Edward Gibbon’s Decline and Fall of the Roman Empire. He pointed out that the power of the sword was important in imperial Rome, or any Monarchy. The leader would need to retain a military force to overawe their opponents and keep them from using military force if they could not defeat him politically.

Such formidable servants are always necessary, but often fatal to the throne of despotism. By thus introducing the Praetorian guards, as it were, into the palace and the senate, the emperors taught them to perceive their own strength, and the weakness of the civil government; to view the vices of their masters with familiar contempt, and to lay aside that reverential awe, which distance only, and mystery, can preserve towards an imaginary power. In the luxurious idleness of an opulent city, their pride was nourished by the sense of their irresistible weight; nor was it possible to conceal from them, that the person of the sovereign, the authority of the senate, the public treasure, and the seat of empire, were all in their hands. To divert the Praetorian bands from these dangerous reflections, the firmest and best established princes were obliged to mix blandishments with commands, rewards with punishments, to flatter their pride, indulge their pleasures, connive at their irregularities, and to purchase their precarious faith by a liberal donative; which, since the elevation of Claudius, was exacted as a legal claim, on the accession of every new emperor. (6) http://www.ccel.org/g/gibbon/decline/volume1/chap5.htm

Over time, though as politics has changed so that military force, the number of soldiers one controls determines who rules, ceased to be the mandate, the praetorian guards nature changed. They changed from a military role to a bureaucratic one. The bureaucracy, though, changed as the free press emerged. The media emerged in the last 20th century and early 21st century as the Praetorian Guard. In the UK, the PM and the ruling party always have a praetorian guard of attendants and subordinates. What is different is that the press and the police complete this function as they have become politicised and partisan. Like the Emperor, the PM develops the Praetorian Guard’s capacity and gives them favours to protect his political flank. All sides, the press, the politicians, and the police, serve served each other but at the public’s cost. The worst betrayal is that of the press as they are the only one who has a nominal responsibility for the public interest. The other two take an oath to the Crown and do not work strictly in the public interest. They serve the Crown not the public.

To control the Praetorian Guards the leader had to favour them

As Gibbon explained, the emperor protected himself in the short term and created a long term problem. In the UK, the political leadership’s relationship with the press and the police reached a crisis point. The relationship is not one that a future leader would dispose of or change lightly.[6] They would encourage and sustain the relationship for the advantages it provides and to avoid being consumed by it. History does not show any tyranny that has been overthrown, or government being voted out of power, without the succeeding government creating its own army, its own intelligence service, and its own police force. It may not create these literally, but a new government can chooses who will fill key posts or influence those office holders to encourage their supporters or allies and discourage their detractors or enemies.

The decision to ride the tiger for political gain sacrifices democracy to the delatores

What happened in in the UK, like imperial Rome, was that the initial bargain, to create the Praetorian guards, in this case the press and the police, became a victim of its own success. The police leadership developed its relationship with the press to act as their praetorian guards. The Commissioners who followed that initial decision soon saw the benefit simply as not being savaged by the monster they had created. Instead of serving the politicians, or the police, and by extension the public and the public interest, they each began to serve their own organisational interests.

The Praetorian Guard emerge as the press stop guarding the public interest

When the praetorian guards started to feel their own power, the public began to see the problem clearly. What might have happened to an individual was now happening to society.  In terms of the police, we can see such power exercised at Hillsborough. The police doctored police statements and thwarted the search for truth as they preferred their organisational interests over the public. The thin blue line served to protect the police not the victims. The police were aided and abetted by a press unable and unwilling to pursue the truth. The politicians who benefitted from the press and the police refused to challenge them. The press shifted attention from the police as they blamed the victims. The press published lies and calumnies. The mood at the time was that anyone who spoke up against these lies condoned such alleged crimes and condemned the unimpeachable character of the police who uphold law and order. However, Hillsborough marked a turning point.[7]

Phone hacking becomes a firestorm as social media challenges the press.

Even though social media did not exist, the social community, the Liverpool fans and families, kept the story alive. They formed a prototypical social network. When social media became available, they were able to create the pressure needed for a new public inquiry.[8] However, that was not the visible turning point. Instead, it was the tabloid press, embolden by the Hillsborough lie that began to display the more extreme behaviour. We see this culminating in the way the News of the World (NOTW) went to extremes for scoops. This reaches its pinnacle when NOTW is caught hacking the phones including the Royal Family. However, the public did not become aware of their depravity until they found that instead of politicians, celebrities or other “public figures” they have turned on the public–NOTW hacks the phone of a dead child. The result is the Leveson Inquiry. However, the story is not complete. There remains a third part to explore—the Murder of Daniel Morgan.

Daniel Morgan’s Murder the one that started it all.

In the UK, the Hillsborough showed us the police as Praetorian Guards. The Leveson Inquiry showed us the press as Praetorian Guards and their relationship with politicians. What remains is the third part, the relationship of police and press in the Daniel Morgan Murder. The Independent Panel’s purpose is to look at the background to the case and the way the police handled it. In particular, the police corruption that thwarted the investigation and how the News of the World’s was involved.

The murder of Daniel Morgan in March 1987 was a personal tragedy for Daniel’s family. In the intervening 26 years, there have been five successive police investigations but no one has been successfully prosecuted or convicted for the murder; and in March 2011 the Metropolitan Police acknowledged “the repeated failure of the MPS to confront the role played by police corruption in protecting those responsible for the murder from being brought to justice”.

What is at issue, in terms of the Praetorian Guards, is the way that police and press intersected. The ex-police officers who conducted the illegal surveillance for the press and the way the press relied on them for their material. The problem, though, is that the material they collected was not only for curiosity, it served an institutional purpose. The News of the World used its journalists and its resources to research its political opponents.[9] The review will look at the way the press and the police were involved and how police corruption undermined the murder investigation.

  • police involvement in the murder;
  • the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption;
  • the incidence of connections between private investigators, police officers and journalists at the News of the World and other parts of the media and alleged corruption involved in the linkages between them.

The three inquiries, although much will depend on the Daniel Morgan Murder Panel’s success, will have shown us much of the way the Praetorian Guards have operated. They will give us an insight into the way politics is conducted, which suggests blackmail and political intimidation is the norm rather than the exception, and the public domain is patrolled by the media in its role as a Praetorian Guard rather than a public guardian.[10]

——

[1] http://ancienthistory.about.com/cs/rome/g/delatorinformer.htm (accessed 13 October 2014)

“Being a delator could be a lucrative, but much despised profession under the Roman emperors. The delator was an informer or informant. Delatores (the Latin plural of delator) were despised for bringing forth trumped-up charges and adversely affecting freedom of speech. Often a delator was paid by the emperor for the accusations. Delatores were sometimes paid a fee and sometimes a set portion of the victim’s fine. Money confiscated also went into the imperial treasury.

The people who were accused by the delator were mostly those of the senatorial class, so it is not surprising that the emperors especially associated with the delatores were those otherwise disliked by senatorial class writers, Pliny, Cassius Dio, Suetonius, and Tacitus.”

Perhaps this explains why Tom Watson, an MP, took exception to the behaviour by the News of the World as they appear to be acting as delators against his patron.

[2] The case of Eric Cullen shows how the police and the press can cooperate in the name of the public interest to destroy a life. http://www.publications.parliament.uk/pa/cm200203/cmselect/cmcumeds/458/458w126.htm

[3] As Rebekah Brookes told the Leveson Inquiry “It’s not fair to say politicians live in fear of newspapers … MPs don’t scare easily.” The point that is overlooked is that one cannot know that unless you have tried to scare an MP. https://lawrenceserewicz.wordpress.com/2012/06/06/four-questions-robert-jay-failed-to-ask-rebekah-brooks-and-why-they-matter/ Or as Greg Miskiw said “That is what we do – we go out and destroy other people’s lives”. You may not want these people as your enemy but would you want them as your friend?

[4] The practice violates the Nolan Principles of public service. https://www.gov.uk/government/publications/the-7-principles-of-public-life/the-7-principles-of-public-life–2  The principles are listed here:

  1. Selflessness
  2. Integrity
  3. Objectivity
  4. Accountability
  5. Openness
  6. Honesty
  7. Leadership

[5] One would only find senior officers of a crude or vulgar disposition seeking financial profit from the relationship. The human nature of public servants often displays a weakness for financial rewards for private pleasures that public service does not appear to provide.

[6] In many ways, the tools and techniques to manage this relationship is the best way to describe the arcana imperii http://www.special-dictionary.com/latin/a/arcana_imperii.htm  see also https://escholarship.org/uc/item/81g0030z#page-2

[7] http://www.independent.co.uk/voices/comment/thatchers-boot-boys-when-the-unholy-trinity-of-police-press-and-government-took-root-8139816.html

[8] https://lawrenceserewicz.wordpress.com/2013/06/28/private-memories-public-accountability/

[9] Consider the evidence that they used Sourthern Investigations to gather evidence on senior police officers. http://www.independent.co.uk/voices/comment/exclusive-news-of-the-world-hired-detective-firm-linked-with-murder-to-spy-on-met-chief-8144285.html

[10] Consider the way that the press can use its public interest mantel to investigate anyone, especially if they enter the public domain.  https://lawrenceserewicz.wordpress.com/2012/09/11/has-the-uk-medias-abuse-of-the-public-interest-stifled-democracy/ One could suggest that the goal has been to protect the establishment from challenge.  http://mediameditations.wordpress.com/2014/08/11/the-new-establishment-leveson-hacking-and-the-public-voice/ However, that would require a longer paper to explore.

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Ferguson and the return of Martin Luther King’s dream

Dr. Martin Luther King at a press conference.

Dr. Martin Luther King at a press conference. (Photo credit: Wikipedia)

Indicting Darren Wilson will not end racism. It will not even begin to end racism in America. It will not send a message to racist cops. It will not stop black men from being shot by the police. What we need is to return to Martin Luther King’s dream.

The path to redemption is out of the fields of hatred and distrust

If we want to reduce racism, change policing, and stop black men being shot by the police, then we need to take the steps along a hard road, a road harder than protests, speeches, or demonstrations. We have to move beyond the sound bites, and election year promises, to toil in the fields of hatred and distrust. From those barren fields we can grow the promise of redemption. What we must first do is confront our past and our present so that we change our future. The seeds we sow cannot be more hatred and anger; we must sow the seeds of justice as Martin Luther King taught us.

Martin Luther King changed America by changing the laws

Martin Luther King, and Lincoln, knew that the only way to change America peacefully was to change the laws. Today, distrust and hatred of the government and authority will not allow this. Too many people now believe the law is an oppressor. The government is an enemy. The court is persecutor. We have forgotten that Martin Luther King succeeded because he trusted in the government, and the government of men, to do the right thing. He succeeded before distrust and hatred of the government became endemic in America. He succeeded because he appealed to America’s better nature. He called for a disciplined effort that drew upon a long tradition of non-violent action. Action, though, was not what set him apart. His oratory did not set him apart.  What set him apart, and continues to set him apart, is that he had a destination. He had a vision that included everyone. He wanted to change the laws so that he could change America. He would change it for everyone.

America is a community that is renewed by daily choices of justice and civility

To reduce racism, to improve police community relations, and keep black men from being shot by the police, we need a change. Change, though, begins when we understand the problem. Why did Michael Brown and Darren Wilson intersect so tragically? There is no law that would have stopped what happened. The struggle for the gun, the chase, and the shots: these are already beyond the law. They are in the realm of necessity, not choice. We need to go back to why Michael Brown was in the store. Why did he and his associate confront the officer? Why did he try to grab his gun? We know why Darren Wilson was there. We know why the law was there. Why was Michael Brown there?

Courage to confront our past gives us the freedom to make our future

If we lack the courage to confront those questions, we cannot go forward. If we do not know how we have arrived at our present how can we change our future? What shaped Michael Brown is the hard truth that is America. The police shootings are only a symptom. There is no easy answer as to the cause. We can look at socio-economic factors. We can look within the black community. We can look at society. We can look at the police. However, none of these alone will explain the cause until we see what creates a just society. We need to return to the promise of America, the promise of Martin Luther King.

America can only survive if she is bound by a belief in the goodness of the laws.

What we need to change is our approach to the government, to authority, and most importantly, to each other. The change will not come through violence. It will not come through hatred. It will not come through resentment. Change will come from the small daily decisions and efforts we make towards each other. These are the steps we must take to the political goal set out by Martin Luther King. He had a goal. He had a dream. Today the dream seems a nightmare as the only goal seems to be “F*** the police” as if the police and the law are the problem. We, the people, have become the problem. We no longer understand the law and the promise of America, or each other. We no longer seem to believe in the promise of just society that protects the weak and vulnerable not just the powerful and the prominent.

We need to return to the promise of America, the promise of Martin Luther King

If we fail to look at society, we will not understand the problem. If we focus on racism we miss the lack of jobs, the lack of education, and the difficult socio-economic conditions for everyone. These are problems that magnify racism. They need to be addressed if we are to reduce racism for they reflect the lack of justice. Justice and its absence define the relationship between the police and the community in many areas of America. The issue is more than how the police and act and the community respond. The people want to be protected by the law, they want justice. The police enforce the law, but they fail to deliver justice.  They cannot deliver justice when communities see the police as pacifying them and not working with them to create a shared community of justice. When the police see their role in this way, the law becomes a stranger and justice a shadow. We cannot close our eyes to the reality that many communities can longer exercise self-government and order is imposed on them.

From political equality we can rebuild the American dream

These are not the problems of one community, they are America’s problem. Americans have begun to forget what is required for self government. Communities need political change so that they can create a legitimate order based in justice. Martin Luther King understood that political change and political equality were for everyone. The Civil Rights legislation was a starting point not a destination. We have lost sight of that understanding. We expect the law to end racism. We expect the law to create social equality. When the law cannot deliver these outcomes, communities come to see it as an oppressor or a tool to advantage one group. The law cannot end racism, or poverty, or inequality. It can create political equality from which we can address racism that emerges from the socio-economic disparities. These disparities affect all of us as they show that our common good, our access to justice, is severely limited. Until we see that it is a problem beyond black or white, rich or poor, man or woman, we will continue to fail. We must return to the laws and follow the path to justice. Martin Luther King showed us the way by his example. Our freedom is in the law and what it means. Until we return to the path; we cannot reach the Promised Land.

Let us follow in Dr. King’s footsteps so we can quench our thirst for freedom by drinking from the cup of sweetness and love. Only then can we find justice born of equality.

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Bill Cosby and the cult of celebrity

English: Bill Cosby's star on the Hollywood Wa...

English: Bill Cosby’s star on the Hollywood Walk of Fame Deutsch: Bill Cosbys Stern auf dem Walk of Fame (Photo credit: Wikipedia)

The news about Bill Cosby is sad. It follows a familiar pattern. A star is accused of something, in this case drugging women and sexually assaulting them, and the press and public go into overdrive to condemn them. Although the allegations have not been proven in a court of law, the court of public opinion has begun to pass judgement. What is has not been judged, though, is the public’s complicity in these cases. As we learned from the Jimmy Savile allegations, celebrity status protects the alleged behaviour. The same celebrity status, with its attendant money and influence, has helped to protect Bill Cosby against these allegations.

Who was going to stop him?

Instead of asking, “how could get away with it”, we need to ask “Who was going to stop his alleged behaviour?” Who was going to stop him when the public had invested so much in his celebrity status? A celebrity is known by the status an audience and public opinion give them. If we want to understand how Bill Cosby could get away with his alleged behaviour, we only need to look at our infatuation, our addiction, to the celebrity culture of entertainment. In particular, there is a belief that a celebrity should, and will, receive preferential treatment. The celebrity is not celebrated for their intrinsic worth or goodness as a person. They are celebrated for what they seem to be, the reputation within the public imagination. As a society, our culture habituates us to accept the appearance as the reality. When the appearance, the cult of celebrity, dominates the person, it changes our understanding of the human person and what is acceptable about the human person.

Celebrity as commodity is what makes Bill Cosby powerful

When celebrity becomes the measure of a person’s worth, the person becomes a commodity. Their appearance is what matters not what they are like as a person. The entertainment industry encourages us to value the person as a celebrity, as a commodity. We, the audience, want the appearance to be the reality. We want our celebrities to be larger than life. We want them to be as what we see on the screen. We will overlook their fallen nature, their weakness, their depravity, because we have invested so much in their status, their celebrity, their success. In that relationship, we do not seek out the person, as a person, in all their flaws. Celebrities are ordinary people without any particular grace or insight into life and we would rather belief the magical than the mundane. There is nothing intrinsically interesting about a celebrity as a person. Their appearance is what made them famous not who they are.

How does this explain Bill Cosby?

The entertainment system protects and rewards Bill Cosby. He provides a commodity, a service. He entertains us. He could rely on the public opinion that created and supported his celebrity status to defend him. Anyone who challenges that celebrity status would attract more attention and more resistance. Even if the celebrity status did not deter someone with a complaint, he had the resources to defend his status as a celebrity with lawyers or settlement payments.

Appearance shapes our reality by shaping our public opinion

The cult of celebrity’s power is created by our willingness to accept appearances as reality. Millions of people have seen Bill Cosby on TV. He appeared to them as a funny comedian and later a jovial, avuncular, patrician on his hit television programme. Everyone saw him as he appeared to be in those roles. Few saw him or know him as a person. Many may see a celebrity, but few will know them as a person. Bill Cosby is no different. How Cosby appeared for the public was not the same as it was for those who claim to “really know what he is”, the ones who were in the room, drugged, and helpless. They remained silent or unheard because it easier to believe what so many believe than listen to the individual who disagrees. He had wealth, organisations, and lawyers to defend him and hide his true reality that the women have alleged. The public opinion about Bill Cosby was shaped by his public face. The public, in effect, defend him by consuming his public face, his value as an entertainment commodity.

What is the entertainment industry’s commodity?

Appearances are enhanced by our desire to believe them. We want to be entertained. We want to believe the magic. The entertainment industry succeeds to the extent that it can turn a person into a commodity that entertains us. We, the audience, make them powerful by buying them as a commodity. The entertainment industry traffics in flesh and we are its consumers. Is surprising that Bill Cosby’s alleged behaviour is sexual? We rarely see actors involved in financial scandals or political scandals. Instead, they are involved in sexual scandals. One only need look at the latest music videos to see the flesh trade in operation. The flesh trade fuels the culture of celebrity, which undermines the dignity of the human person. There is no behaviour so abhorrent that it cannot attract someone or some organisation to “celebrate it and thereby profit from it”.

That which you watch repeatedly shapes your soul?

The next time you watch television or go to the cinema, consider whether your entertainment supports and enhances the cult and culture of celebrity that enables Bill Cosby’s alleged behaviour. The programmes may amuse and even entertain but at what cost? When you buy into the cult of celebrity, you support the flesh trade that enables this type of behaviour.

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Records management and the Wanless Report on Home Office files

Home Office

Home Office (Photo credit: Wikipedia)

Peter Wanless and Richard Whittam QC were commissioned to review two previous reviews commissioned by the Permanent Secretary at the Home Office in relation to child abuse. The first review focused on allegations about organised child abuse sent to the Home office. The review looked at what the Home Office did about the allegations and whether Home Office staff were involved in, or implicated in, organised child abuse. The final part looked at what action was taken. The second review looked at whether the Home Office ever directly or indirectly funded the Paedophile Information Exchange.[1] They reported that they could not find the Dickens Dossier nor could they say that a cover up had or had not happened. In his evidence before the Home Affairs committee, Peter Wanless explained that the Home Office records and the police records at the time were in a “mess”.[2]

Records provide historical accountability

To records managers, the outcome is not a surprise. Records management is rarely a priority for organisations and was less of a priority 30 years ago. Even in the age of computers, senior managers usually overlook records management and it lacks the attention needed to make it as robust as required. However, this is a secondary issue. The primary concern is the review. The following are a few points that illustrate concerns with the review, some of which the authors identified in their evidence to the Home Affairs Select Committee.

Talented but are they the right people on records management?

  1. A CX and a QC conducted the review. Neither was chosen for their records management experience. In their professional roles, they are unlikely to have daily records management experience. They are at the summit of their profession. They have other people to manage their records, provide them with the documents, and seek out files within the system. The records management system works for them. As they rarely, if ever, have to file papers or consider how their records are organised, they are unlikely to have explored how records systems are designed or used.

Limited terms of reference undermined the review

  1. The terms of reference limited their ability to interrogate the systems, procedures, or personnel. The investigators acknowledged this point. Moreover, as the requests cut across a large number of organisations, they had to rely upon each organisation’s search method. At best, one can say they did a thorough but superficial trawl across the organisations.

To catch a poacher, you need to think like a poacher

  1. The investigators are intelligent, skilled, and experienced, but neither has a background in records management systems. To put it directly, neither are poachers. They are not bureaucrats who can make documents disappear.[3] They need someone to assist them who has hidden files, who has made them disappear, or designed ways to keep them from a regulator or an inspector.[4] Moreover, they needed to talk with the records managers and the people who ran the record management system. They did interview senior people, but they are usually removed from the daily work within the systems.

We asked very senior officials at the Home Office in the early 1980s if they could recall whether there were files about particularly sensitive matters. (paragraph 9)

An in-depth review might have tracked down any officers who worked on or with the files that were found. They could have explained the context and use of the documents in the way that the Home Office Whistle blower helped to explain the PIE funding issue and another member of staff identified helped to explain the context for the funding.

Wide ranging but shallow, what does it mean?

  1. As it was a review of previous reviews and did not include in depth interviews, the review could only provide a superficial review of the systems. They did not explore processes, structure, or efficiency in any detail.[5] Some systems are designed for purposes that do not provide external transparency. The system works for those who use it. They were not designed to provide transparency for external investigators as there was no reason to believe it would be needed when created. Moreover, the system will appear incomprehensible to those who do not know how it works. The investigators were at least two steps removed from the system and the records as they existed. Unless you have someone inside, especially from that time, to walk you through the file system and where and how records can be hidden or disappeared, it will provide a superficial understanding of the issue. The one contemporary witness, the Home Office whistle blower, makes this point.

What you look for is often what you find

  1. They relied on a keyword search system.[6] This is the basic records management approach. The approach assumes the documents are labelled this way or have metadata that would identify it.[7] In their testimony, the investigators understood this point. They understood that code words for sensitive files could be used to hide their true nature. Many organisations keep sensitive material hidden behind code words so that a casual, or inadvertent glance, will not reveal their contents. Thus, one would have to be initiated into the system to understand what they contain. In most large organisations, they will contain files so that only those with a need to know can find them or see them.[8]

Bureaucracies create accountability but only so much for so long

  1. Despite what people dislike about bureaucracy, it does create accountability. Procedures and processes combined with record keeping create accountability. For example, J. William Leonard insisted that the correct process and procedure when documents were classified. The documents were records about the abuse of detainees. His loyalty to the process (the law) kept the files from being hidden.[9] The Home Office system did not lend itself to such accountability.

Where was the National Archives in this review?

  1. For records managers, there is an omission with the review. The investigators and the Home Affairs Select Committee did not address this point. The government’s best resources, its top people, on records management were not involved. The National Archives is the government’s records manager. However, the government did not use them. The Information Commissioner’s Office (ICO) is involved with records management and access to information regimes. Why did the government overlook them? On the surface, it might have been that they wanted independent reviewers. However, the need for records management expertise should have been apparent.

Records management is usually an afterthought

The report captures the problems that the records managers face. Records management is rarely a priority for organisations. Until there is a crisis, senior managers tend to overlook records management and take it for granted.

Time for England to have its own Shaw report?

The report shows the Home Office and the police were poor at keeping records. Records provide historical accountability. Without records, it is hard to hold the past to account. The authors recognise this problem and recommend that records management improve. However, the case reminds us that England needs the equivalent of the Shaw report.

[1] The report and associated documents can be found here. https://www.gov.uk/government/publications/the-peter-wanless-and-richard-whittam-qc-review

[2] The testimony from Peter Wanless and Richard Whittam QC at the Home Affairs Select Committee can be found here. http://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news/141105-child-abuse-ev/ (at 12:13:20) As with any testimony, it is important to consider body language of the people testifying.

[3] What is curious is the amount of records presumed destroyed, missing, or not found, in 1984-1985. There is no explanation for that destruction in the report. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/372925/Final_Report_-_Annex_E_part_2.pdf p1 and see the same on p2 but for 1984, 85, and 86. What was happening in the department at that time would be something to explore.

[4] This does not mean that people intend to do something illegal. On the contrary, they may believe they are doing something to protect the company, which means that it is legal. In any organisation, people hid bad news, poor performance, and mistakes. It is part of human nature. Where it is done with a criminal intent is a different matter. However, the difference between human nature and criminal intent is decided in a court. Few records management systems are tested or displayed in the court. Yes, many court cases revolve around records and how they are managed, but the issue is more the content of the record rather than the structure and outcome. To put it directly, it is hard to distinguish between fraud and incompetence.

[5] As others have pointed out, Wanless and Whittam were given limited time to conduct their review and it was focused on a specific topics with limited terms of reference. For the origins of this review, see this site. http://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news/140706-sedwill-ev/

[6] Here is what they asked in their investigation. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/372921/Annex_D_-_What_we_asked.pdf

[7] I have seen others make the same point. Researchers who have looked at historical documents understand this problem. The historical records are carefully vetted and scrubbed for legitimate reasons (national security) as well as dubious reasons (vanity and reputations) as well as criminal reasons (something done that while not overtly or clearly illegal could indicate such illegality)

[8] In their testimony, they do point out that where they found allegations of a crime reported to the Home Office, it was duly reported to the police. However, this, as they explain, only shows what they found not whether anything was hidden.

[9] The process was William Leonard refused to classify documents to protect them from disclosure. His decision forced the US government to track and disclose, as well as capture the decision process along the way, regarding the abuse of detainees. see (p.1204).

 

 

 

 

 

 

 

 

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Is the cost-benefit society’s justice harsher than the ancient political justice.

English: The French economist Jules Dupuit (18...

English: The French economist Jules Dupuit (1804-1866), credited with the creation of cost-benefit analysis. (Photo credit: Wikipedia)

We often hear of deciding an issue by considering the costs versus the benefits. In many cases, this offers a good basic system for deciding an issue. However, when it comes to making a decision about a person, the term starts to take on a different meaning and a different intent. In the UK Supreme Court judgment: R (MacDonald) v Kensington & Chelsea (2011), we see the brutal consequences of a cost benefit approach to justice and society. In this case, a local council made the cost benefit decision that an elderly woman would have to sleep in her faeces, as it was too costly to provide night-time assistance. They offered the less expensive option of incontinence pads. The justices supported the council’s decision except for Lady Hale. She argued that the logic used by the council, and the court, to reach this decision was flawed. A good analysis of the legal issues can be found on Carl Gardner’s Head of Legal post here. The Supreme Court ruling can be found at this link.

Is our life now reduced to a cost benefit calculus?

The case reveals the consequences of a cost benefit approach to politics and life. If our decisions, our very existence, are reduced to a cost-benefit analysis, what does it mean to be human? Are we to die or suffer because we “cost” too much? Who decides that someone “costs” too much relative to the “benefit” they provide? Whom are they providing the benefit to? Is it society, the person who applies the decision, or the person subject to the decision? These are not idle or speculative questions. They are literally life and death questions. They are also the question between human dignity and its alternative.

How do we distribute scarce resource without raising taxes?

Many people accept the cost-benefit model to distribute scarce resources. If we consider the trade-offs, we can decide between competing demands on the same budget. The implicit logic is that the decision is zero sum. If one gains, another has to lose, as the budget remains unchanged. The service budget may be affected, but the service budget exists within a larger organisational budget. What the decision did not explore is how the care budget is decided within the organisation’s budget. The implicit question is how the organisation has decided the budget for that service before the cost benefit decision had to be applied. What we find, though, is that organisations rarely apply a cost benefit analysis to themselves. They apply it to the service users. The organisation uses other criteria than cost-benefit. At the level of society, the cost benefit approach does not appear to be used as taxes that provide for the common good can be changed. They usually focus on the strong, those able to pay, and delivered so the weak and the vulnerable may live with the remaining shreds of dignity that their weakness and vulnerability deny them.

Does cost benefit analysis let us avoid political decisions?

The “cost benefit” approach to decisions is an analytical model to justify decisions.[1] As an analytical tool, it serves a purpose. The issue here is what its use tells us about the way society employs it. The cost benefit analysis is crude, but very subtle way, of demonstrating that selfishness is what we want. We do not want to pay more if the costs of such programmes outweigh the benefits. We believe that the resource envelope’s limits determine where and how the money should be spent. We do not want more taxes, where the strong help the weak; instead, we want to retain our taxes for our purposes. In that scenario, the weak and vulnerable are left to their devices. We do not want to make the envelope larger nor do we want to change its shape if it requires us to pay taxes. We defend the shape of the envelope by arguing that it reflects the best “cost-benefit” trade-off. Yet, we want to comfort ourselves in the notion that we pay our taxes and we already “do so much”. In that belief and that choice, we do not privilege the weak and the vulnerable. The powerful and the protected make the decisions, who will be a cost and who will be a benefit, which we accept it claims to deliver the greatest benefits at the lowest cost. The cost benefit analysis thus creates an artificial necessity, we have no more money and we do not want to pay any more taxes, that justify the decisions.

To raise taxes is to make a political decision.

We could raise taxes; we could choose to spend differently on different programmes. Those choices reflect the society we want. The programmes are the bureaucratic expression of our political wishes. They are not an economic or financial decision; it is a political decision. It is a political decision by the community to have the choice framed in this way. What is particularly troubling is how this is applied to the individual. The argument within the Supreme Court is that the community cannot privilege the individual at the expense of the community. We have to make choices and some individuals will be worse off. The goal is to make the number of people hurt by the change as small as possible. Yet, that argument raises a disturbing question about the limits of our rights as an individual.

Does an individual have any value if society decides they “cost” too much?

As Lady Hale explained, the issue is whether the individual has a right within the context to have her views considered. How does such a system take into account the individual in such a scenario? Contrary to what the Court argued, the question was not simply about an absolute entitlement. Instead, it is about the rationality of the decision by the council that is being challenged. Is their reliance on a cost benefit justification rational? What this suggests is a deeper problem within Western political systems.

Natural scarcity required justice for decent politics, what does artificial scarcity require?

The modern era, the rise of the modern nation state and modern natural science, is one where natural scarcity is no longer a threat. The state by providing a stable and prosperous society and a market can ensure that modern natural science will deliver the food to keep people from starving. By contrast, the ancient world was marked natural scarcity. Yet, we see that scarcity has returned. We have localized scarcity, where the organisation decides. Alternatively, we have macro scarcity where states make decisions based what they perceive as global scarcity. Without acknowledging it, we seem to be shaped by an ancient worldview. In that sense, cost benefit analysis shows illiberalism that reminds us of ancient world’s brutality.

Has justice been replaced by expediency? At what cost?

The applicant has been given justice. It has revealed an ugliness that haunts our society. We have reduced the human person to an economic cost. Is our claim to have a just society and one that respects the individual an empty one? Our justice appears to depend on an artificial necessity stricter than the natural necessity found in the ancient world.*** Perhaps what makes it stricter is that our politics, despite its claims to champion the individual and the rights of man, delivers an outcome, which relies more on what is expedient rather than just.

 

[1] For more on cost benefit analysis and welfare economics, see for example, http://www.sjsu.edu/faculty/watkins/cba.htm

And

http://en.wikipedia.org/wiki/Welfare_economics

These are useful tools within a certain context. However, they are now used in place of political judgement and as an artificial necessity to force a political choice. We have not more money so programme x must go. The reality is that more money can be found, raise taxes for example, charge for services, or reduce other programmes. Thus, a strict reliance on cost benefit analysis to make the political decision subsumes an economic logic for a political decision.

*** “Modern philosophical thought has all too often weakened the effectiveness of this sense, thereby permitting mere technological considerations and the economic and other so-called practical considerations closely allied to technology to dominate communal developments.”

 

https://anastaplo.wordpress.com/2011/05/11/heidegger-and-the-need-for-tyranny/

 

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Response to Corey Robin on Eichmann: funny man

Adolf Eichmann

Adolf Eichmann (Photo credit: Wikipedia)

(This post is a response to Corey Robbin’s blog[1])

One must always remember that ridicule is not a refutation. The most direct way to put this is that victims of the Final Solution did not laugh their way to the gas chambers or the firing squads. Even if they did, what would it prove? They were dead and the Nazis were alive.

We laugh because we are safe?

Arendt can find Eichmann funny because she is in a protected position. The court can find him funny and guilty because they have power over him. What is less clear from her book is whether Arendt refuted Eichmann. Moreover, his intellectual inspiration Heidegger is Eichmann’s shadow throughout the trial.

Why Eichmann and not Heidegger?

Arendt’s project founders on Heidegger. She can deal with Eichmann the bumbling, unthinking, bureaucrat who never thought for himself or even began to think. What does she do with Heidegger? If knowledge is virtue, then how does she explain Heidegger? If she disassociates his politics from his thinking, what does that say about Eichmann? She rightly condemned Eichmann for his unthinking behaviour yet, where his failure to think explains his behaviour. What does she have to say about Heidegger, the paramount thinker of the 20th century, who embraced and justified National Socialism and the Fuhrer’s will? He did not simply go to the tyrant’s court. He promoted and embraced the tyrant’s cause.[2] He was not seeking to change or direct the Fuhrer to the good; he was propagating, in his own way, the Fuhrer’s will.[3] Moreover, he never recanted, revised, or retracted his views.

Was Eichmann a way to avoid dealing with Heidegger’s Nazism?

Heidegger rather than Eichmann should have been in the glass box in Jerusalem. Arendt never condemned or confronted Heidegger. Her failure to confront him or judge him suggests a hollowness to her public statements on Eichmann. Does the banality of evil have any validity beyond a polemical device? Were her comments for popular effect and consumption? Moreover, we have to wonder about her public statements on Heidegger when considered against Leo Strauss’ well-known reticence to make public statement on or about Heidegger.[4] Arendt undermines her philosophical project and her belief in Eichmann’s guilt because she cannot bring Heidegger to justice. She remained publicly and privately friendly with Heidegger.[5] She engaged with him without condemning him. One can condemn a person and recognize their errors and crimes without endorsing them. However, what remains problematic is that Arendt never refuted Eichmann. She condemned him, ridiculed him, and judged him, but she never refuted him. She was only in the position to condemn, ridicule, and judge him because the Allies had won the war. Therein we see the political problem for her philosophical stance.

That which we condemn in others is the sin we hold secretly.

She condemned Eichmann for his unthinking behaviour. On the surface, it would appear she was similarly unthinking regarding Heidegger. If Arendt thought about Heidegger and continued to engage him and write about him publicly in exculpatory terms, what does this say about Arendt? Heidegger was not unthinking when he accepted the Fuhrer’s will and promoted National Socialism.[6] Does that mean she accepted the outcome of his thought was virtuous? In light of this question, her attack on Eichmann loses its lustre and its moral content. Perhaps, we can offer an alternative view that mitigates her problem. It may be that she accepts that there are different standards for different men. Yet, if we accept that argument, then we begin to accept that Heidegger can be above or beyond the law or the common morality, which condemns Eichmann and the other Nazis. If Heidegger is above or beyond the law, what is it that exempts him? He remained unrepentant over his support for Hitler and National Socialism. To that extent, we have to ask whether Arendt implicitly accepts Heidegger’s argument given her decision to condemn Eichmann for being unthinking.

Would a Socrates in power become tyrannical?

What we have to accept is that if Arendt is unable to refute Heidegger/Eichmann it raises the question of whether knowledge is virtue or whether it is something else. If a Socrates in power leads to Heidegger’s “error”, it brings philosophy into disrepute, perhaps terminal disrepute. The gnawing question for Arendt is “Was Heidegger right?” For her to dispute that would require her to accept the political argument and propose a counter political argument. The challenge though is that such an argument has to accept the grounds of the disagreement. The problem is that Arendt and Heidegger cannot share a common ground. Arendt, in her belief in knowledge is virtue, a belief in Socrates as a political philosopher, accepts there is a good, perhaps unknowable, but something upon which the quest can begin and continue. By contrast, Heidegger does not believe such good exists or is knowable. Only a god can still save us.[7] In that statement, Heidegger shows us the problem for Arendt and philosophy.[8]

Without God we find tyranny or nihilism

We return to where we began in trying to understand Arendt’s position on Eichmann and Heidegger. Eichmann was unthinking and thus betrayed what it means to be human, to think, while Heidegger thought and betrayed what it meant to be human by his support and defence of Hitler and National Socialism. What it suggests is that Arendt’s “faith” in reason was flawed, as it appears empty as a basis by which we can condemn Eichmann/Heidegger aside from a political basis. In other words, her book on Eichmann is insufficient because it lacks what Heidegger rejected: God. One may wish to laugh in the face of evil, but one only brings evil to justice before the law and God. To do that, you need more than laughter; you need good arms and good laws.

 

[1] http://coreyrobin.com/2014/10/22/adolph-eichmann-funny-man/

[2] Heidegger gave speeches supporting Hitler in the fall of 1933 after becoming the rector of University of Freiburg. http://www.foreignaffairs.com/articles/142255/gregory-fried/what-heidegger-was-hiding See also a selection of these speeches found here: http://www.lacan.com/symptom/?p=63

[3] Here is Heidegger’s Rectorial Address http://la.utexas.edu/users/hcleaver/330T/350kPEEHeideggerSelf-Assertion.pdf curiously it misses out the Heil Hitler at the end, which is in the original. On that point consider http://heavysideindustries.com/wp-content/uploads/2010/06/88-nazi.pdf

[4] http://ndpr.nd.edu/news/42309-heidegger-strauss-and-the-premises-of-philosophy-on-original-forgetting/ see also https://archive.org/details/StraussOnHeidegger This covers the five texts that Strauss wrote that relate explicitly to Heidegger. Only a couple were printed in his lifetime.

Leo Strauss, “Existentialism” _Interpretation_ 22:3 (Spring 1995): 303-319

A lecture first given on Feb., 1956, at the Hillel Foundation (University of Chicago); a different version appeared as “An Introduction on Heideggerian Existentialism,” in _The Rebirth of Classical Political Rationalism: An Introduction to the Thought of Leo Strauss_ (Chicago: University of Chicago Press, 1989), pp. 27-46.

Leo Strauss, “Philosophy as Rigorous Science and Political Philosophy,” reprinted from _Interpretation: A Journal of Political Philosophy_ 2:1 (1971) [in _Leo Strauss: Studies in Platonic Political Philosophy_ (Chicago & London: University of Chicago Press, 1985), pp. 29-37];

Leo Strauss, “The Problem of Socrates” _Interpretation_ 22:3 (Spring 1995): 339-337

A lecture first given on April 17, 1970 at St. John’s College at Annapolis

Leo Strauss, “German Nihilism” _Interpretation_ 26:3 (Spring 1999): 353-378

A lecture which appears to have first been given on Feb. 26, 1941 at the New School for Social Research

Leo Strauss, “Relativism,” [in Helmut Schoeck and James W. Wiggins, eds., _Relativism and the Study of Man_ (Princeton: D. Van Nostrand, 1961)], pp. 135-157

[5] In light of her adulterous relationship with Heidegger, the following passage, in her introduction to Walter Benjamin’s Illuminations is revealing.

“He went on to say that only the private, almost “secret relationships between Germans and Jews” were legitimate, while “everything about German-Jewish relations that works in public today causes harm.” There was much truth in these words. Written from the perspective of the Jewish question at that time, they supply evidence of the darkness of a period in which one could rightly say, “The light of the public darkens everything” (Heidegger).” http://brutishandshort.com/wp-content/uploads/2011/06/Hannah-Arendt-Introduction-to-Illuminations.pdf

[6] http://www.nybooks.com/articles/archives/1971/oct/21/martin-heidegger-at-eighty/ Arendt tries to excuse Heidegger’s “dalliance” with the Nazi party as a youthful “error”. The only problem with this defence is that in 1958 he wrote in the introduction to Introduction to Metaphysics, where on p.166 he wrote about the inner truth and greatness of National Socialism, he explained that all errors had been corrected for this edition. He did not appear to see his support for the inner truth and greatness of National Socialism as an error.  . See Martin Heidegger, Eigführung in die Metaphysik, 2nd. ed. (Tubingen: Max Niemeyer, 1958), p. 152. English translation: An Introduction to Metaphysics, trans. Ralph Mannheim (Garden City, N.Y.: Doubleday, 1961), p. 166. In the introduction, Heidegger explains all the errors have been corrected for this edition.

[7] http://la.utexas.edu/users/hcleaver/330T/350kPEEHeideggerSpiegel.pdf Heidegger’s posthumous interview with Der Spiegel.

[8] Wonder is the beginning of philosophy Theaetetus 155d http://www.perseus.tufts.edu/hopper/text?doc=plat.+theaet.+155d but the beginning of wisdom is fear of the Lord. Proverbs 9:10 http://biblehub.com/proverbs/9-10.htm and Proverbs 15:33 http://biblehub.com/proverbs/15-33.htm As Leo Strauss put it quid sit deus?

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Should we follow Aaron Swartz’s example on civil obedience to the laws?

English: Aaron Swartz at a Creative Commons event.

English: Aaron Swartz at a Creative Commons event. (Photo credit: Wikipedia)

In his Guerrilla Open Access Manifesto, Aaron Swartz writes “There is no justice in following unjust laws.” In the context he argues that there has been a private theft of public culture. In effect, copyright enriches the few at the expense of the many. If information were made free then all would benefit. We would return to a state where knowledge was not privatized. The goal sounds laudable and well meaning, but what does it mean?

Is knowledge ever public?

On the surface, Swartz makes sense. Copyright appears to privatize knowledge. However, the copyright only applies to the documents not the ideas. The deeper issue, though, is whether knowledge has ever been public. Certainly, we can say that we want access to materials that are held in libraries. However, that has always been a challenge. One could argue that it is only in recent years, the last 100 that public libraries were built and maintained on a scale that would indicate that they were truly public. It was only in the 19th century that the modern idea of the public library, the type of institution we see today, emerged.[1] In the US, the first public library emerged in 1835.[2] Yet, the public library does not make knowledge public. It makes information available, but it does not make knowledge or wisdom public. To gain knowledge, one must study. One must become educated. Neither of these occurs in public places. They occur in private spaces far away from the public domain. The exception that proves the rule is that Socrates often met in the market place to philosophize. Most dialogues occur in a private setting. However, this takes us away from the central issue, which is obedience to the law.

What is the standard for judging the laws?

The question of access is about the legal control of such material. One can argue that the control should be lessened or even removed, however that does not make the laws surrounding the access unjust. Herein, we see the problem. Mr Swartz wants us to disobey unjust laws. However, he provides us no standard or basis by which to judge the law or laws as unjust. To the extent that he does provide a standard, it appears that it is his personal preference or what he perceives to be an injustice.

In his use of the phrase “There is no justice in following unjust laws”, and calling for civil disobedience it would appear he is echoing, either consciously or unconsciously, the work of Martin Luther King. Dr King, quoted Augustine in his Letter from Birmingham Jail “An unjust law is no law at all”, Like Dr King, Mr Swartz calls upon us to engage in civil disobedience.[3] However, unlike Dr King Mr Swartz offered no standard to judge the laws.[4] Dr King argued that unjust laws are those out of harmony with the moral law or the natural law because they degrade the human personality.

How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.

If this is an acceptable standard by which to judge the laws that are unjust and thus require disobedience, then we need to consider Mr Swartz’s concern with the law of copyright. Does the law of copyright degrade the human personality? In his manifesto Mr Swartz does not address this point. He argues instead that the common good has been harmed by the “privatisation of knowledge” through copyright. Yet, there is no discussion or thought as to how the common good has been harmed or whether it has been harmed. Mr Swartz assumes or asserts that it has. He argues that the use of copyright to limit access through legal means harms the common good. However, laudable his goal, we have to consider whether his claim is worthy of civil disobedience given its potential impact on obedience to the laws.

Obedience to bad laws is not unjust when the alternative is worse.

Civil disobedience, especially when it suggests that the laws are unjust, can lead to a general disobedience of the laws or mob rule. In such a situation, people only follow the laws they like and disobey the ones they dislike or do not agree with. Lincoln warned that disobedience to the laws, particularly in the United States, can lead political institutions being destroyed. One could argue that the laws America’s most important political institution. In his Address before the Young Men’s Lyceum of Springfield, Illinois, Abraham Lincoln argued that unjust laws were still laws and still worthy of respect and obedience. [5]

When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, or that grievances may not arise for the redress of which no legal provisions have been made. I mean to say no such thing. But I do mean to say that although bad laws, if they exist, should be repealed as soon as possible, still, while they continue in force, for the sake of example they should be religiously observed. So also in unprovided cases. If such arise, let proper legal provisions be made for them with the least possible delay, but till then let them, if not too intolerable, be borne with.

Perhaps Mr Swartz had not read Lincoln or considered his concern. America’s most famous example of civil disobedience, Martin Luther King, had. In his Letter from the Birmingham Jail, he explained the steps necessary before civil disobedience could be engaged as it contained a threat to the political institution, which is the laws and obedience to the laws.

In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices are alive, negotiation, self-purification, and direct action.

In this letter it would appear there is a harmony between Lincoln and King because they see the second step, negotiation, as the way to change laws. They do not advocate direct action or conflict as a first an immediate step. Moreover, they both seem to accept that self-purification or putting up with the bad laws, until such time that they can be changed, needs to be considered before direct action. In Mr Swartz’s manifesto we do not see these steps. Instead, we are called to take direct action that breaks the laws. This is not civil disobedience, this is theft.

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks.

This is not civil disobedience. This is theft. Leaving aside the possibility that Mr Swartz read and was influenced by Proudhon[6], “All property is theft”,[7] his proposal is dangerous, irresponsible with a touch of youthful naiveté. Disobedience to the laws in this manner, using civil disobedience to justify theft, encourages a spirit of lawless and it encourages a view that the government is corrupt because it enforces the law.  Lincoln saw this danger, and he lived through its consequences which he could not have foreseen, when he wrote.

By such examples, by instances of the perpetrators of such acts going unpunished, the lawless in spirit are encouraged to become lawless in practice; and having been used to no restraint but dread of punishment, they thus become absolutely unrestrained. Having ever regarded government as their deadliest bane, they make a jubilee of the suspension of its operations, and pray for nothing so much as its total annihilation. [Emphasis added]

I cannot follow Mr Swartz’s example. I do not see his proposal as one that merits support. Instead of imitating him, we would do well to encourage others to learn from what he proposed and the consequences of what he proposed.

[1] http://en.wikipedia.org/wiki/Public_library

[2] http://en.wikipedia.org/wiki/Public_libraries_in_North_America

[3] The parallels between Mr. Swartz and Mr Snowden on this issue is noteworthy. A possible way to understand it could be found in my blog on Mr. Snowden and his political acts. https://lawrenceserewicz.wordpress.com/2013/12/26/snowden-manning-and-tsarnaev-is-the-only-difference-a-pressure-cooker/  (part 1) and

https://lawrenceserewicz.wordpress.com/2014/03/02/snowden-manning-and-tsarnaev-is-the-only-difference-a-pressure-cooker-part-2/ (part 2).

[4] http://www.uscrossier.org/pullias/wp-content/uploads/2012/06/king.pdf

[5] http://www.constitution.org/lincoln/lyceum.htm

[6] http://en.wikipedia.org/wiki/Pierre-Joseph_Proudhon

[7] http://en.wikipedia.org/wiki/What_Is_Property%3F

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