Over at Firedoglake, loosheadprop has made this job just a little easier, in her discussion of jus cogens, she notes, of her law professors at Yale,
They followed an evolution of human rights law from periods when citizens would surrender all of their rights in exchange for security (Dark Ages anyone?) through the Enlightenment's ideas about natural law, with detours through Communism's "collectivism" and down to the authors' modern vision of a "policy based" approach to human rights.
I wish it were so. I wish that human thought was well-ordered, an inevitable march of evolution. But the Dark Age for torture that was ended by John Donne by the Enlightenment, followed on Pope Nicolas I's unequivocal ban on torture in 866 (see here, at B1) as unacceptable under both divine and human law, because it produced confession that was not voluntary. A few hundred years later, facing the usual "existential threat", the Dark Ages reversed compelling law, as the U.S. seems to have done recently. I am coming to the conclusion that the problem is death, and that what is keeping many of Americans from understanding the concepts in looseheadprop's piece, is the notion that nothing is as important as death.
Here Comes the Hard Part
We have become a culture that enshrines some deaths as beyond speech. I wish this weren't the problem, but I think it is. Because we cannot talk about certain deaths in the past, we are unable to put death into its proper place in our thoughts -- because we have these outstanding atrocities that allow the loss of life to seem always evil, and that allow the preservation of life to trump all other concerns. Death becomes primordial, schemes to defeat it become obligatory, questions are not allowed to be asked.
So let's talk about September 11 and Pearl Harbor. Even before the September 11 attacks, the term "Pearl Harbor like event" to denote a cataclysm that would change the way Americans think of their society, and facilitate change that some thought necessary, was in documents produced by the Project for a New American Century (in Rebuilding America's Defenses:Strategies, Forces And Resources For A New Century, 2000, the group apparently has taken their website down). The comparable part of the two events was the death toll in American lives. 2350 Americans died at Pearl Harbor, 2973 died as a result of the September 11th attacks. And to many, if not most, that was all that mattered when concerned with the subsequent response. And so there is a perception of an existential threat.
They were not equal as existential threats, though. Japan was an aggressive nation-state, with a large war machine, conducting an essentially repeatable attack. Except for the element of surprise, they could have subsequently done the same attack, executed the same set of maneuvers against, for example, a large American city. They had already invaded China and parts of Indochina, and would soon occupy Burma, challenging the British Empire. They could, and did, sustain full scaled war with the United States and plenty of other countries for several years afterward, continuously, at great cost of human lives in all the places those wars were fought.
Al Qaeda in no way posed or poses such a threat, nor have they sustained such a war. The plan executed on September 11, was many years in the making, if you count the mistakes, the other attempts. It is fundamental to much of the conduct of the United States subsequent to September 11 that we are facing an existential threat, like we faced after Pearl Harbor. It is therefore fundamental that our institutions and our public maintain their focus on what has become an obsession in America, the death toll. That is all that makes the events comparable.
That wasn't a nice thing to say, but there are things that are even less nice. Comparisons to the Holocaust, and to many grievous events in recent history are not, in many fundamental ways, permissible in America, or in Europe, or many other places. When Philippe Sands talks of comparisons between the Justice Cases at Nuremburg and the abuses after September 11 by the United States, he disclaims them:
The scale of the atrocity described in the Justice Cases was staggering and cannot be compared with what apparently happened at Guantánamo or Abu Ghraib. I felt uncomfortable even making that kind of comparison, but what struck me as a point of connection was the underlying cause...The scale of the atrocity is, in modern times, defined by numbers: the extermination of 6 million Jews by the Nazis is a genocide, but the scale of death is the reason it is never compared, or compared only reluctantly. But Philippe Sands is right, the point is the underlying connection. The point is difficult to make because death stands in its way, and blurs the vision of many in the discussion.
More Hard Thoughts
Equally off limits is the preservation of life at great cost, though. This preservation goes on in hospitals all the time, and has only recently had much challenge. It is assumed in the notion of implied consent: A patient that is not conscious, or is not alert and oriented, is assumed to consent to the treatments needed to keep the patient alive. It is believed that any sane individual that is alert and oriented, under the circumstances, would give such consent, so it is implied. This goes further in applications of the Hippocratic Oath, actually the dictum of Galens to "above all, do no harm." It is interpreted much like implied consent.
A patient is kept alive at all costs. Frequently, the reason for keeping the patient alive is couched in an optimistic belief that a cure might be imminent, and the patient might recover, but this is obviously not the reality in some instances. I can recall a patient kept alive through two weeks of acute vasculitis, intense pain of the sort that was offered as possibly cruel and unusual in the recent debates about lethal injections, on the basis of the imminent cure argument. The patient clearly wanted to die, the doctors at the time dismissed that desire, and in fact would have been prohibited from facilitating it. There would never have been a way for a cure to have occurred and become practicable in such a time frame, the argument reflected an extreme fear of death in our society, and little else.
And what of beliefs? A sizable number of Americans alive right now wait anxiously for the Second Coming, believing that it will occur within their own lives if the conditions are right, and they will bodily enter the Kingdom of Heaven. There will be no death if that occurs, and it would appear that the importance of such an event as a source of comfort in people's lives would not be insignificantly tied to having cheated death: "Oh death where is thy sting, oh grave where is thy victory?"
It goes further: In The Torture Team, Sands records (p. 86) General Hill of the Southern Command as offering in response to questioning the tactics that had been approved by Donald Rumsfeld for interrogation, "They behead us." Execution in this manner is not humane by modern standards, and in fact is a deliberate insult: Those beheaded were killed that way because it is halal, the way of preparing the meat of animals, and so equates those killed with animals. But it is execution. Likewise, when the bodies of contractors were pulled from the vehicles in which they died and hung on a bridge, as grisly and offensive as it was, it was maltreatment of the dead. It offended because of the dignity of the dead, because of the attitude which did not pay enough respect for death and for the dead. But if death is not part of the prescription, as with most of the prisoners in U.S. custody, who have been subject to abuse or torture, then it doesn't rise to the level of this atrocity, this very wrong treatment of death.
Death is our "ultimate sacrifice." It is cited by some as the only part of "life, liberty and the pursuit of happiness" that matters, without life, the others are "meaningless". Our special place for it, if you will, in recent times, transcends everything, and the lack of it is justification. No one has died in terror attacks on American soil since September 11? Whatever the tactic, no matter how brutal, it is successful, don't criticize. It is okay to relegate the Iraq war to the back pages because of the invisibility of death. Not just the lack of images of coffins coming home, or the brutal scenes we saw in the photography of the Vietnam war. For we have been at this war for longer than World War II, and it has consumed only four thousand some lives.
Only? How can anyone say that? It's not right to mention it that way. But hasn't that been the attitude, both in reporting and in the prosecution of this war? It isn't Vietnam, just look at the difference in deaths. Never mind the real reason: the number of casualties saved compared to those lost has changed from 2.5:1 in Vietnam to 16:1 in Iraq. Those who would have been dead get hemicraneotomies and ICP probes, radical new surguries to the spine and the like. Were the toll to be according to the ratio readjusted to the Vietnam era, the toll would be 20,000 dead by now. It is probably this, and not the lack of a draft, that dictates the reaction of the American public, but to say so seems profoundly impolite and inappropriate. It implies that Americans rate the awfulness of tragedy based on a body count, based on death alone.
John Yoo famously equated "severe pain" rising to the level of torture to pain equivalent to "death or organ failure." Pain to the torture victim isn't significant in this view unless it approaches -- death. Death is the prevented effect in the ticking bomb theory. Death has been cheated by 4 draft deferments and 4 coronary bypasses by the man who keeps coming up as central to the shift in American policy away from international law and towards techniques that include torture. It's all about death, about avoiding death at all costs, about the ultimate sacrifice.
And so, to come back again to the theory of evolution and jus cogens in international law: It is the fear of death that causes the "surrender all of their rights in exchange for security." Enlightenment comes, in the sense of jus cogens, in understanding the existence of a fate worse than death. Otherwise there can be no "Give me liberty or give me death!" because it makes no sense, it would be insanity to choose something other than defeating death, even for an instant.
It is Memorial Day in America. In remembering those who have fought and died for this country, in hoping for that permanent peace, it is worth remembering that there are things that are worth such sacrifice, and there are things that are worse than death itself. If we cannot remember that the sacrifice of soldiers by its very nature implies that fear of death should not cause us to dismantle the evolution towards human rights, and away from torture, slavery, and genocide, if we cannot believe that there are certain human rights that exist regardless of what a person has done or what they believe, then we have forgotten a perspective so fundamental, and acquired at such cost, that we cannot be considered to have evolved at all.