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Archive for August, 2009

A BBC anchor posed this question to the Tripoli correspondent regarding the airport “celebration” upon Megrahi’s return to Libya. The correspondent highlighted the point (made to him by a counselor to Megrahi, so a grain of salt here) that we need to make the comparison in a Libyan context, saying that a state occasion would have had more government officials. The attendants at the airport were mostly extended family and members of Megrahi’s tribe. So what to UK and US eyes appeared like a welcome for a returning hero was in Libyan terms relatively low key. The correspondent added that journalists are essentially being given the runaround with respect to access to Megrahi – with his villa saying go to the media office and the media office saying go to the villa; the implication being, if Libya were really in celebration mode, there would be more interviews, access to Megrahi, and crowing about success. Also, whether Megrahi has any role in the upcoming state commemorations of Gaddafi would reveal more as to whether the Libyan government is feting Megrahi.

I think the mistranslation analogy can be further extended to the Scottish justice system’s practice of compassionate release. Several points became clearer in watching Scottish Justice Secretary Kenny MacAskill answer questions in the Scottish Parliament today. All applications for compassionate release that met the criteria since 2000 have been granted – a point demonstrated by the 23 out of 30 approvals of compassionate release since 2000, including, MacAskill said, a murderer of a child. Furthermore, MacAskill believed himself to be acting in a quasi-judicial capacity, dealing with an application requiring impartial consideration. As such he was engaged in a prescribed process – if not written, then in terms of norms – where every relevant public authority advised proceeding with compassionate release (if I recall correctly, these public authorities are the parole board, prison authorities, and prison medical service).

In terms of how this translated in the US, the statements of the FBI Director and the Chair of the Joint Chiefs of Staff demonstrate they have a differing understanding of what compassionate release means. Joint Chiefs Chair Mike Mullen commented this was “obviously a political decision.” Robert Mueller’s letter to Scottish Justice Secretary MacAskill led the news yesterday. Mueller makes a number of statements about his reading of the situation,

I do so because I am outraged at your decision, blithely defended on the grounds of “compassion.”

Your action in releasing Megrahi is as inexplicable as it is detrimental to the cause of justice. Indeed your action makes a mockery of the rule of law.

Your action gives comfort to terrorists around the world who now believe that regardless of the quality of the investigation, the conviction by jury after the defendant is given all due process, and sentence appropriate to the crime, the terrorist will be freed by one man’s exercise of “compassion.”

Your action rewards a terrorist even though he never admitted to his role in this act of mass murder and even though neither he nor the government of Libya ever disclosed the names and roles of others who were responsible.

Your action makes a mockery of the emotions, passions and pathos of all those affected by the Lockerbie tragedy…

But most importantly, your action makes a mockery of the grief of the families who lost their own on December 21, 1988…

You have given the family members of those who died continued grief and frustration. You have given those who sought to assure that the persons responsible would be held accountable the back of your hand.

You have given Megrahi a “jubilant welcome” in Tripoli, according to the reporting. Where, I ask, is the justice?

In their totality, the accusations Mueller makes against MacAskill seem to read compassionate release as a kind of pardon in the US system – as though MacAskill had a range of discretion in making the decision. MacAskill presents the decision as a norm – had he interfered and not granted compassionate release that course of action would be improperly injecting politics into a quasi-judicial, impartial process.

All of this about mistranslation is not to say there is not an underlying, genuine disagreement. What are the legitimate aims of a justice system, vengeance, deterrence, safety, compassion? Those questions were also in evidence during MacAskill’s response to MSPs today – with members pointing out the mace at the Scottish Parliament is inscribed with the words: wisdom, justice, compassion and integrity. The differing readings feed into why the sides are so far apart, and yet convey such moral certitude. For my part, MacAskill’s answering questions at the Scottish Parliament reaffirmed my sense that he had made the right decision.

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The Justice Secretary of the Scottish government, Kenny MacAskill, released the Libyan bomber held responsible for Lockerbie today. Frankly, his explanation at the press conference wasn’t very well constructed or well delivered.

“Mr al-Megrahi did not show his victims any comfort or compassion. They were not allowed to return to the bosom of their families to see out their lives, let alone their dying days,” he said.

“But that alone is not a reason for us to deny compassion to him and his family in his final days.”

Mr MacAskill continued: “Our justice system demands that judgement be imposed, but compassion be available.

“For these reasons and these reasons alone, it is my decision that Mr Mr Abdelbaset Ali Mohmed Al-Megrahi, convicted in 2001 for the Lockerbie bombing, now terminally ill with prostate cancer, be released on compassionate grounds and be allowed to return to Libya to die.” (BBC)

Following the press conference, it seemed like 5000 years was not enough for al-Megrahi, let alone 10; al-Megrahi was convicted of murdering 270 people. In interviews I think MacAskill delivered a slightly more expansive explanation, justice must be tempered by mercy. When others, the PM show on BBC Radio 4, explained more about the process in context MacAskill’s decision made more sense. The gist, those terminally ill with less than three months to live are released from Scottish prisons in the name of mercy and compassion. That is my understanding of how the law and regulations of Scottish prisons work. Since 2000, there have been 30 applications for release under these grounds and 23 have been approved. Three or four of those released were convicted for murder and unlawful killing. I haven’t heard an explanation of the 7 rejections, but one interviewee offered that the medical evidence may not have shown the late stage of terminal illness in those cases.

Al-Megrahi has prostate cancer and his prognosis meets the guidelines for compassionate release. I’ve heard several victims families’ interviews today, some approving of the decision others disapproving. Part of what complicated the picture is some victims’ family members think Al-Megrahi was wrongly convicted, but I have no idea as to the merits of his appeal. While I appreciate the profoundly heartfelt feelings of those victims’ families who disapprove, I do not think MacAskill made a mistake. Vengeance, and even bloodlust, are really nasty features too much in evidence in the American justice system. I could just be overcompensating for my disapproval of those in making judgements about the Scottish system. But both the process and the principles operating in the Scottish system seem sound to me. I would rather live in a world that errs towards the side of compassion – even if I’m wrong and foolhardy.

Throughout the day, really difficult questions have been posed: Does compassion even count if it “easy” to be compassionate? Do we have a duty to forgive? In what circumstances, if ever, is forgiveness owed? An interviewee mentioned the first line of this and it seems appropriate,

The quality of mercy is not strain’d,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
‘Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice.
Portia, the Merchant of Venice

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Questions first. I’ve been interested recently in the underlying assumptions that inform the US healthcare debate. An attempt to get to questions that reveal the assumptions that shape opinion on US healthcare, free market s or socialized medicine:

  • Identifying and defining social problems, particularly with respect to the universe of what can be fixed by the state. Can the state intervene and (successfully) resolve a fairly wide or fairly narrow set of problems?
  • The relation between deserts and property; what is ascribed to individual effort and what to community contributions? The extent of arbitrariness in distribution: what part of wealth distribution is down to luck?
  • The salience of past injustice and inequality in present social arrangements; are past injustices something to be recognized and remedied or something to be overcome by pulling oneself up by one’s bootstraps?
  • Constructing identity broadly or narrowly? Who is us? Are international boundaries fairly consequential or inconsequential – how consequential should they be?

I was prompted in part by this passage from a 1999 profile of John Rawls.

Rawls appears to have given only one interview in the course of his career, and that to a small Harvard-based magazine. The only other significant source for information on his life is the first chapter of Thomas Pogge’s book John Rawls, which was published in German in 1994. Rawls described to Pogge the formative experience of his early life: the deaths of two of his younger brothers, one from diphtheria, the other from pneumonia, both illnesses they contracted from Rawls himself. Joshua Cohen, a former student, says that these anguishing events are reflected in A Theory of Justice in discussions of the “arbitrariness of fortune” and the “unmerited contingencies” of life. It was at about this time that Rawls developed his stutter, which he associates with his brothers’ deaths.

Questions – all very well and good. I have a fairly good idea where I stand on those and why. Meta-questions, however, that’s where I’ve recently run into some difficulty. It is pretty rare that I’ll run into a single blog post, or well, a specific passage really, that makes me say, “Uh-oh, I’ll have to reevaluate the way I think about quite a few things in light of this.” Usually, I’m prepared to stand firmly with my preexisting views, John Rawls, Amartya Sen, Martha Nussbaum, human rights, human dignity, rinse, repeat. I’d even run into an OECD report that had me feeling pretty sanctimonious recently (PDF), confirming my views on the need for government intervention to allow for social mobility. Four years of undergrad in the making, so far, five years in the execution and I’d say things were going pretty well. The last time I had to reevaluate things this much was Iraq in light of Errol Morris’s the Fog of War.

So much for the buildup. The post is John Holbo’s discussion of George Scialabba’s book “What Are Intellectuals Good For?” at Crooked Timber (worth reading the whole post). Basically, Holbo discusses Scialabba’s comments on the intellectual ecology of the center-left and far-left, commenting that Scialabba is so fair and sensible that’s its frustrating. Frustrating to me – someone who’s been happily not given Marxism or the far-left serious consideration in some time; “I might be a Marxist,” just hasn’t crossed my mind recently. I’ve been satisfied with my awkward amalgamation of neoliberal economics and center-left, soft social democratic leanings. Scialabba’s distressingly intelligent observation,

Concerned not to cut himself off from his fellow-citizens, the internal critic will be tempted to moderate, if not his indignation, then at least the expression of it: his rhetoric. And sometimes — usually — he will be right to do so, to set political effectiveness above literary effect.

But indignation is not always manageable. And however conscientiously the critic tries to reiterate, to reconstruct the moral history of those in other communities, it will always be difficult for him to give their suffering due weight. We are properly skeptical of the habitually enraged critic; but we are also disappointed on occasion — and they may be the most important occasions — by the invariably judicious one. Perhaps this is why, though I largely share Walzer’s political positions, I have seldom been profoundly moved by his own social criticism — enlightened, yes, but rarely inspired. The young Kafka wrote: “If the book we are reading does not wake us, as with a fist hammering on our skull, why then do we read it?” Walzer is, alas, far too polite ever to have hammered on anyone’s skull. Other connected critics have done so, it is true, including same of those Walzer discusses. But if the connection is not to be endangered, the tact required is extraordinary and the critic’s inhibitions will therefore be considerable.

Kafka went on: “What we must have are books that come upon us like ill-fortune and distress us deeply. . . . A book must be an ice-axe to break the sea frozen inside us.” I have often exclaimed with pleasure while reading Walzer’s graceful prose, but never with distress. Inside every citizen of a state responsible for so much misery in the rest of the world there is, one must assume, a frozen sea. In normal times, for ordinary purposes, the temperate, scrupulously nuanced, moderately forceful criticism of the typical connected critic — of Walzer himself— is appropriate. But sometimes maximum intensity — an axe, a charge of verbal explosives, a burst of white heat — is required, whether for immediate effect or in helpless, furious witness. A sense of the simultaneous urgency and futility of much social criticism — i.e., the tragic sense — is a necessary part of the critical temperament. To resist this sense is the critic’s everyday responsibility. To give in to it, to risk excess, loss of dignity, disconnection, may also, on occasion, be his duty.

Perhaps more later. But I’ll close with another quote from Scialabba, similarly destabilizing:

The fervent gratitude he inspires is, in a way, the most remarkable thing about Berlin’s career. He has written comparatively little; it obviously strikes exactly the right chord. “People are pleased,” observes Russell Jacoby (“Isaiah Berlin: With the Current,” Salmagundi, Winter 1982), “to find a man of learning who does not accuse them or their society of unspeakable crimes. … Berlin reassures his readers in a prose studded with the great names of Western culture that complexity is inevitable, solutions, impossible; the threat is from the utopians and artists who imagine a better world.”

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