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Martin Luther King–Letting Justice Run Down Like Water

Martin Luther King with Lyndon B. Johnson, Mar. 18, 1966. Photo by Yoichi R. Okamoto, White House Press Office.

You know my friends, there comes a time when people get tired of being trampled by the iron feet of oppression… If we are wrong, the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. And if we are wrong, God Almighty is wrong. If we are wrong, Jesus of Nazareth was merely a utopian dreamer that never came down to Earth. If we are wrong, justice is a lie, love has no meaning. And we are determined here in Montgomery to work and fight until justice runs down like water, and righteousness like a mighty stream.

–Martin Luther King, Jr., Address to the first Montgomery Improvement Association (MIA) Mass Meeting, at Holt Street Baptist Church, Dec. 5, 1955

Listen to George Frederick Handel’s Coronation Anthem No. 2, composed to the words of Psalms 89:14-15, “Let thy hand be strengthened and thy right hand be exalted./Let justice and judgment be the preparation of thy seat!/Let mercy and truth go before thy face./Let justice, judgment, mercy and truth go before thy face.” Performed here in a 1963 recording by the Choir of King’s College, Cambridge with the English Chamber Orchestra under the direction of Sir David Willcocks. The Psalm and the Anthem mark the sovereign’s paramount duty to dispense justice, however inconvenient or painful this process may be, as the essential task assuring the legitimacy of the state.

Military Justice and the Fear Game

Watching the G.O.P. spin machine attack the Obama Administration over its decision to bring a group of serious terrorist leaders, led by Khalid Sheikh Mohammed, to trial in New York, I am puzzled by the number of rank falsehoods that go unchallenged in the media. The critics consciously disregard the fact that Eric Holder’s decisions stack up almost perfectly with those of his predecessors, Michael Mukasey, Alberto Gonzales, and John Ashcroft. In fact, there were 87 federal court prosecutions of Al Qaeda-linked terrorists in the Bush years, according to a study by New York University’s Center for Law and Security, compared with six military commission actions. The prosecutors also achieved better outcomes in federal court by almost every measure—conviction rates, length of sentences, and time from bringing charges to conviction—than they did in military commissions. You would think Republicans would be proud of this accomplishment by a Republican Justice Department. But now it seems a politically inconvenient fact, best quickly forgotten, or even papered over with lies.

The other serial distortions concern the military justice system. Republican talking heads speak as if the military commissions really were kangaroo courts, stacked against the defendants, who would have no right to confront evidence against them, no right to counsel—and they note these things approvingly. This is a gross libel against America’s military justice system. Our system has it flaws, as any justice system does, but it’s also both efficient and just, and the assumptions of many of these politicians (some of whom actually seem to have law degrees) are simply wrong. In an interview with the Huffington Post’s Sam Stein, my friend Brigadier General James Cullen (USA, ret’d) sets the record straight:

If Republican critics of President Obama are to be believed, the administration made one of the biggest blunders in national security history when it placed the accused underwear bomber in the criminal justice system as opposed to the military alternative. Umar Farouk Abdulmutallab was about to spill the beans on all of al Qaeda, the argument goes, before the White House tied both hands behind its back — unilaterally limiting the type of interrogation procedures it could use on the suspect and then providing him unnecessarily with an attorney. It’s simply not true, say legal experts, including officials who formerly served in the military tribunal system.

James Cullen, a retired brigadier general who served as a JAG officer, tells the Huffington Post that there are narrow differences between the legal and interrogation proceedings Abdulmutallab was subjected to and those which would have happened in a military commission. Contrary to conventional wisdom, the suspect would have been granted access to a lawyer if he had been put in a military system. In fact, he may have had easier access to an attorney. “The military is not some type of Soviet show-trial kangaroo court,” said Cullen. “Absolutely he would have gotten a lawyer.”

[But] isn’t there a difference — with regard to the civilian and military systems — in the time that can elapse between when a suspect is captured and when he or she has to be granted legal representation? Not all that much, says Cullen. Abdulmutallab, for starters, was questioned for 30 hours before requesting a lawyer. Military personnel might have had more time. But not all that much. More broadly, even in a civil system, authorities can question a suspect without reading them their Miranda rights for a limited amount of time as long as there is “no intention to try the person” and it is “purely for intelligence purposes.” This is little different than in a military setting, where — if the detaining authority wants to prosecute the detainee — the impetus is on bringing legal counsel into the equation early on. “If you want to prosecute you can’t foul up the process,” explained Cullen.

Unaccountable Mercenaries

The New York Times calls the situation just the way it is:

A federal judge in Washington, Ricardo Urbina, has provided another compelling argument against the outsourcing of war to gunslingers from the private sector. In throwing out charges against Blackwater agents who killed 17 Iraqis in Baghdad’s Nisour Square in September 2007, Judge Urbina highlighted the government’s inability to hold mercenaries accountable for crimes they commit. Judge Urbina correctly ruled that the government violated the Blackwater agents’ protection against self-incrimination. He sketched an inept prosecution that relied on compelled statements made by the agents to officials of the State Department, who employed the North Carolina security firm to protect convoys and staff in Iraq. That, he said, amounted to a “reckless violation of the defendants’ constitutional rights.” During the presidential campaign, Barack Obama and Hillary Clinton competed over who would take the toughest line against mercenaries. It is clear that the only way for President Obama to make good on the rhetoric is to get rid of the thousands of private gunmen still deployed in Iraq, Afghanistan and elsewhere…

the government has not prosecuted a single successful case for killings by armed contractors overseas. An Iraqi lawsuit against American military contractors by Iraqi victims of torture at Abu Ghraib was dismissed by a federal appeals court that said the companies had immunity as government contractors… There are many reasons to oppose the privatization of war. Reliance on contractors allows the government to work under the radar of public scrutiny. And freewheeling contractors can be at cross purposes with the armed forces. Blackwater’s undersupervised guards undermined the effort to win Iraqi support. But most fundamental is that the government cannot — or will not — keep a legal handle on its freelance gunmen. A nation of laws cannot go to war like that.

The Times places the blame squarely where it belongs: on the Executive Branch. It has developed a massive mercenary army, completely at odds with American tradition and doctrine. It has consciously failed to enforce the laws of war, notwithstanding solemn promises to the American people and the international community to do so. The current administration, to be fair, inherited this problem. Barack Obama and Hillary Clinton both promised to address it during the campaign, but it’s hard to find any evidence of action on these promises. To the contrary, the reliance on mercenaries is actually growing.

Remembering Freya and Helmuth James von Moltke

This weekend we learned that Freya von Moltke died at the beginning of the year at her home in Norwich, Vermont. A lion of the resistance to Hitler and the wife of its best known leader, Helmuth James von Moltke, she was 98. The Times reports:

“He put the question to me explicitly — ‘The time is coming when something must be done,’ ” Freya von Moltke said. “ ‘I would like to have a hand in it, but I can only do so if you join in too,’ and I said, ‘Yes, it’s worth it.’ ” So, with a wife’s assent, began a famous challenge to Hitler. At the height of the Nazi victories, Count Helmuth James von Moltke invited about two dozen foes of Nazism, many of them aristocrats like himself, to imagine a new, better postwar Germany. For him, his wife’s participation was essential, as she remembered the conversation in “Courageous Hearts: Women and the Anti-Hitler Plot of 1944,” a 1997 book by Dorothee von Meding.

Moltke’s correspondence with his wife, published as Letters to Freya, constitutes, along with Anne Frank’s Diary, Primo Levi’s Se questo è un uomo, and a handful of other books, one of the great moral documents to emerge from World War II. In his letters, Moltke, the scion of Germany’s greatest military family, documents the mentality of war—what he called “cowardice, servility and mass-psychosis”–and how it undermined the moral essence of men and women, converting them to “machines with a particular function in a process.” Moltke was no pacifist, but he was a firm believer in international law and the laws of war as essential tools to protect the innocent and soften the harms of warfare. The processes he so skillfully observed can be found in some measure in every society enmeshed in war, not least of all in our own. Today, January 11, marks the fifty-fifth anniversary of the death sentence that concluded his trial by the infamous Volksgericht for his courageous actions against the Hitler regime.

Adam Smith—The Foolish Admiration of Wealth

Sir Joshua Reynolds, Portrait of Captain Robert Orme (1756)

This disposition to admire, and almost to worship, the rich and the powerful, and to despise, or, at least, to neglect persons of poor and mean condition, though necessary both to establish and to maintain the distinction of ranks and the order of society, is, at the same time, the great and most universal cause of the corruption of our moral sentiments. That wealth and greatness are often regarded with the respect and admiration which are due only to wisdom and virtue; and that the contempt, of which vice and folly are the only proper objects, is often most unjustly bestowed upon poverty and weakness, has been the complaint of moralists in all ages.

–Adam Smith, The Theory of Moral Sentiments pt i, ch iii (1759).

Listen to the uncharacteristically dark, even demonic tones of Wolfgang Amadeus Mozart’s Piano Concerto No. 20 in D Minor (KV 466)(1785), performed and conducted by Friedrich Gulda with the Munich Philharmonic. Both Mozart’s father Leopold and his mentor Franz Joseph Haydn were present at the premier, which occurred in a popular Viennese gambling lounge. Both expressed astonishment at the turbulence, darkness and utter brilliance of the work, which in many ways presages Don Giovanni and the Requiem. It was the first concerto composed by Mozart in a minor key. Mozart, the most brilliant artistic figure of his age, lived his entire life from hand to mouth, and lived much of it in poverty. He died destitute and was buried in a potter’s field.

Judge Dismisses Charges Against Blackwater Employees in Nisoor Square Killings

Judge Ricardo Urbina dismissed all charges against five former Blackwater employees stemming from the September 2007 killing of seventeen Iraqi civilians in Baghdad’s Nisoor Square. I discuss the decision with Amy Goodman on this morning’s Democracy Now:

Transcript here.

Celano’s Judgment

Hans Memling, The Last Judgment (1467)

Liber scriptus proferetur

In quo totem continetur

Unde mondus judicetur

Judex ergo cum censebit

Quidquid latet, apparebit

Nil inultum remanebit

Lacrimosa dies illa

Qua resurgit ex favilla

Judicandus homo reus

Huic ergo parce, Deus?

The written book will be brought forth,

in which all is contained,

from which the world shall be judged.

When therefore the judge will sit,

whatever hides will appear:

nothing will remain unpunished.

That tearful day,

by which from the ashes resurrects

the guilty man who is to be judged.

Spare him therefore, God.

–Tommaso da Celano, In commemoratione omnium animarum (excerpt) (ca. 1240)

Tommaso da Celano’s famous lines about the Judgment Day were later, though likely in a changed form, incorporated into the liturgy as Dies Irae. They are a reflection on judgment and self-judgment, an activity that all should undertake as one year ends and the next begins, whether inspired by religion or simple self-reflection.

Listen to the Dies Irae in a traditional Gregorian chant, and then to the setting of the Verdi Requiem in a performance by the Berlin Philharmonic under Herbert von Karajan:

Balzac–Prosecutors and the Public Trust

Honoré Daumier, But de faire (1840)

Aucune puissance humaine, ni le roi, ni le garde des sceaux, ni le premier ministre ne peuvent empiéter sur le pouvoir d’un juge d’instruction, rien ne l’arrête, rien ne lui commande. C’est un souverain soumis uniquement à sa conscience et à la loi. En ce moment où philosophes philanthropes et publicistes sont incessamment occupés à diminuer tous les pouvoirs sociaux, le droit conféré par nos lois au juge d’instruction est devenu l’objet d’attaques d’autant plus terribles qu’elles sont presque justifiées par ce droit, qui, disons-le, est exorbitant. Néanmoins, pour tout homme sensé, ce pouvoir doit rester sans atteinte ; on peut, dans certains cas, en adoucir l’exercice par un large emploi de la caution ; mais la société, déjà bien ébranlée par l’inintelligence et par la faiblesse du jury (magistrature auguste et suprême qui ne devrait être confiée qu’à des notabilités élues), serait menacées de ruine si l’on brisait cette colonne qui soutient tout notre droit criminel. L’arrestation préventive est une de ses facultés terribles, nécessaire, dont le danger social est contrebalancé par sa grandeur même. D’ailleurs, se défier de la magistrature est un commencement de dissolution sociale. Détruisez l’institution, reconstruisez la sur d’autres bases ; demandez, comme avant la Révolution, d’immense garantie de fortune à la magistrature ; mais croyez-y ? n’en faites pas l’image de la société pour y insulter… Là gît le vice de l’institution actuelle.

No human authority–neither the king, nor the lord privy seal, nor the prime minister, can encroach on the power of the examining magistrate; nothing can stop him, no one can control him. He is a monarch, subject only to his conscience and the law. At present, as philosophers, philanthropists, and politicians constantly endeavor to reduce every social power, the rights conferred on the examining magistrates have become the object of attacks that are all the more serious because they are almost justified by those rights, which, it must be acknowledged, are enormous. And yet, as every man of sense will admit, that power ought to remain unimpaired; in certain cases, its exercise can be dampened by a strong infusion of prudence; but society is already threatened by the ineptitude and weakness of the jury system–which is, in fact, the really supreme bench, and which ought to be composed only of the select among men–and it would be in danger of ruin if this pillar were broken which now upholds our criminal procedure. Preventive detention is one of the terrible but necessary powers of which the risk to society is counterbalanced by its immense importance. And besides, distrust of the criminal investigators in general marks the beginning of the end of any society. Destroy that institution, and reconstruct it on another basis; insist–as was the case before the Revolution–that investigating judges produce a surety bond; but, at any cost, pay them your respect!… Do not make of them an object of ridicule!

–Honoré de Balzac, Splendeurs et misères des courtisanes, pt iii: Où mènent les mauvais chemins (1847) in La Comédie humaine vol. 5, pp. 936-37 (M. Bouteron ed. 1952)(S.H. transl.)

One of the most distressing phenomena of the past decade—the “awful aughts”—was the systematic collapse of the ethics and standards of Justice Department lawyers. They entered the decade as popular culture heroes who vindicated the civil rights of their fellow citizens and put the bad guys in jail. But as the decade ended, evidence was amassed that federal prosecutors behaved unethically and sometimes illegally, that they wielded their impressive powers to persecute political opponents, undermined the very foundations of our legal system by issuing opinions that sought to make torture and brutality legal, they fabricated evidence to achieve convictions and suppressed evidence of innocence. The year ended with a dramatic opinion issued in the homicide prosecution of a group of Blackwater employees in the shooting of seventeen Iraqi civilians in Baghdad’s Nisour Square in September 2007. The case was thrown out by an obviously angered federal judge. But the decision had nothing to do with the merits of the case against the Blackwater guards. Rather, in a 91-page-opinion, Judge Ricardo Urbina meticulously cataloged the unethical and improper conduct of federal prosecutors who were preparing to try the case. Because of the severity of their foul deeds—and not because of the innocence of the guards—the judge decided he had to reach to the ultimate sanction of dismissal of the case. This opinion followed only days after a similar decision rendered in a federal courthouse in Orange County, California, in the Broadcom prosecutions. The judge in that case likewise listed a long pattern of deceits, misrepresentations and extortions practiced by federal prosecutors–in one case pressuring a completely innocent man into a plea bargain arrangement. Only months earlier, the new attorney general, Eric Holder, recognized the gravity of misconduct by his public integrity staffers when he dropped the conviction of former Alaska Senator Ted Stevens. But in the cases involving former Alabama Governor Don Siegelman, Mississippi lawyer Paul Minor and others, prosecutorial misconduct which is still more serious and better documented has already been exposed, but the Justice Department remains in a state of unseemly denial and inaction about it.

Federal prosecutors hold a public trust, and their discharge of this trust over the last decade amounts to an astonishing betrayal. In 1927, Julien Benda wrote in a scathing book of the “treason of the clercs.” “Les hommes dont la fonction est de défendre les valeurs éternelles et désintéressées, comme la justice et la raison, que j’appelle les clercs, ont trahi fonction au profit d’intérêts pratiques,” Benda wrote—“those whose function is the defense of eternal and disinterested values such as justice and reason, who I call ‘clercs,’ have betrayed their function for the benefit of practical interests.” But in America in the last decade, the betrayal was certainly no less sweeping than that which Benda described, and the base nature of the motivations was equally transparent. And who better exemplifies those who should be committed to defense of disinterested justice as a fundamental value of our society than the Justice Department lawyer?

But Balzac, that impassioned chronicler of the dawn of modernity, also recognized the fundamental importance of prosecutors who live to their professional calling. A solid prosecutor must value justice above other things, must disdain cheap careerism and hold the call of politics and its inclination to intrigues firmly at bay. These traits are essential if the prosecutor is to perform his proper function and serve society. Balzac’s warning is true. We may need to reform the office of the prosecutor, particularly by stripping from it the secrecy in which it now operates to the disadvantage of society. We may also need to insure that a number of the malefactors involved in the extravagant prosecutorial embarrassments of the last years are properly punished, to serve as examples for the others. And finally, we certainly need a Congress that pays careful attention to the conduct of prosecutors and exposes their misdeeds, in real time if necessary. The notion of prosecutors who live outside the sanitizing light of public inquiry and are beyond the checks and balances of the American Constitution has proven itself a miserable failure.

But there is no Rule of Law without prosecutors. No accountability of public officials. And no justice.

Listen to Ludwig van Beethoven’s Coriolanus Overture, op. 62 (1807) in a performance by Carlos Kleiber and the Bayerische Staatsorchester. Beethoven wrote this jarring music to accompany a performance of Hermann Joseph von Collin’s play about the Roman general from the early days of the republic who betrayed his city after feeling slighted by it. The music is dark and turbulent and well suited to the downbeat theme.

The Afghanistan Detention Dilemma

Max Boot prescribes a new imperial detentions policy in the Washington Post:

Successful counterinsurgency operations require locking up suspects based on a lower level of evidence — often based on classified intelligence that would not be admissible in a civilian court. It would be better if U.S. and allied forces undertake these kinds of security detentions while the Afghans build their own civilian legal capacity. That means the United States, Canada and other nations need to overcome their squeamishness about detentions. The Bagram facility has been expanded to handle more than 1,200 detainees. Further expansion is necessary. Even more important, the United States and other nations should opt out of the 96-hour restriction.

The U.S. took just the approach that Boot advocates in Iraq several years ago, and the result was a first-class disaster. More than 100,000 people were swept up in the system at some point–more than 90 percent of them with no basis whatsoever. After closing Abu Ghraib, the prison population at Camp Cropper and Camp Bucca peaked at around 26,000 in 2007. The detention facilities, which were not designed or staffed for these numbers, essentially turned into terrorist training and recruitment facilities. And, of course, there were the torture scandals at Abu Ghraib, Camp Cropper, and Camp Nama, resulting from policies that Boot seems to embrace: the use of torture and cruel, inhuman, and degrading treatment.

U.S. forces operating in Afghanistan do need the power to make security detentions. Not having liberal authority to detain would in fact lead to heavier reliance on lethal force, which challenges basic assumptions of counterinsurgency warfare. But the U.S. faces a number of significant challenges in this process.

First, counterinsurgency operations assume the existence of a legitimate authority that the military can aim to secure and empower. The objective is not to add Afghanistan to the American Empire, but to leave the country with a stable government in Kabul. Nothing is more essential to the legitimacy of a government than its administration of justice. It is true that Afghanistan has a weak rule of law environment–though not quite so true as many assume, since Afghanistan has a legal system that is extremely alien to most western observers, in which tribal orders and enforcement systems play a large role. If the U.S. were to build its own extensive detentions system and a U.S. court regime operating by U.S. rules, what does that say to the Afghans about the intentions of the United States? Nearly everyone will see it as a statement of contempt and disrespect for Afghan law and institutions. The key is therefore to have a detention system that properly respects the Afghan constitution, laws, and courts. In Iraq, this was done by creating a special Iraqi state security court (the Central Criminal Court of Iraq) that was properly resourced and staffed to handle cases coming out of the American detention regime. That model had its problems, but on balance it was a sensible approach that reconciled American security interests with the need to respect the local law and courts.

The second problem is torture. Boot recounts an incident in which a prisoner taken by Canadians was turned over to Afghan authorities and was tortured, concluding that the Canadians should turn their detainees over to the United States. But there is a comparable scandal pending in Britain today, over two prisoners the British surrendered to Americans in Iraq, who were taken to Afghanistan and tortured. American torture policy is the core of the dilemma. The key frustration faced by NATO allies in Afghanistan is their inability to coordinate detentions policy with the United States, due to the Bush Administration’s historic embrace of torture. Canada, the United Kingdom, Germany, and the Netherlands are among the countries that run detention operations in Afghanistan and have a standing policy of noncooperation with the United States, driven by concern over American torture practices. We often forget that the scandal over torture-homicides of prisoners actually started in Afghanistan, at Bagram Air Base, as was demonstrated in the Oscar-winning documentary Taxi to the Dark Side. Moreover, credible allegations of prisoner mistreatment at the JSOC black site at Bagram continue into recent months. NATO badly needs a consolidated, coordinated detentions policy—and American disrespect for the prohibition on torture has consistently stood in the way of such a policy. If Barack Obama wants to make good on the pledge he delivered at Oslo, and provide a firmer basis for NATO operations in Afghanistan, this is one way to do it. The brass in the Gates Pentagon are still set on their go-it-alone ways and don’t see the opportunity, or even desirability, of creating policy that would allow the United States to work with its allies. This is part of the legacy of the Rumsfeld years.

Third, the regime that Boot contemplates, like the one that the Pentagon is pushing towards, is illegal. Although international law gives armed forces the right to make security detentions, it doesn’t provide the authority for prolonged detention. Either that occurs under the authority of the Geneva Conventions or the authority must be worked out in an agreement with the host country. On this point, the United States had repeatedly sought authority from the Afghan government, and they have consistently refused to grant it. The Karzai Government’s refusal is well grounded: they say that it would violate their sovereignty for the United States to run its own long-term prison system in Afghanistan without access to Afghan courts and the protections afforded by Afghan laws. They’re right. An agreement could have been worked out with the Afghans, who have been willing to agree to detention facilities on terms that respect Afghan law and courts. The hold-up has been with the Gates Pentagon, whose attitude has been difficult to reconcile with its proclaimed counterinsurgency mission.

Novalis—Hymnen an die Nacht

Carl Gustav Carus, Mondnacht bei Rügen (1819)

Hinüber wall ich,

Und jede Pein

Wird einst ein Stachel

Der Wollust seyn.

Noch wenig Zeiten,

So bin ich los,

Und liege trunken

Der Lieb’ im Schoos.

Unendliches Leben

Wogt mächtig in mir,

Ich schaue von oben

Herunter nach dir.

An jenem Hügel

Verlischt dein Glanz–

Ein Schatten bringet

Den kühlenden Kranz.

Oh! sauge, Geliebter,

Gewaltig mich an,

Daß ich entschlummern

Und lieben kann.

Ich fühle des Todes

Verjüngende Flut,

Zu Balsam und Äther

Verwandelt mein Blut–

Ich lebe bei Tage

Voll Glauben und Mut

Und sterbe die Nächte

In heiliger Glut.

I quest the beyond,

where every pain

will someday be a barb

of voluptuousness.

Just a bit more time,

and I will be free,

lying intoxicated

in the lap of love.

Life without end

Rocks powerfully within me;

I gaze from above

down at you.

On that hill

your luster is extinguished–

a shadow brings

the cool wreath.

O suckle me, my beloved,

with all your might,

that I might fall asleep

and yet love!

I feel death’s

rejuvenating tides;

into balsam and ether

my blood is passed–

I live by day

full of faith and pluck,

and die by night

in holy fervor.

–Friedrich Freiherr von Hardenberg (Novalis), from Hymnen an die Nacht Nr. 4 (1800) (S.H. transl.) in Werke, Tagebücher und Briefe Friedrich von Hardenbergs, vol. 1, p. 159 (H.J. Mähl & R. Samuel eds. 1978)

Listen to the second movement of Franz Schubert’s Piano Trio No. 2 in E Flat, op. 100, DV 929 (1827) performed by Eugene Istomin, piano, Isaac Stern, violin and Leonard Rose, cello:

Meister Eckehart—The Trinity of Love

Jan van Eyck, St. Jerome (1442)

Hâst dû dich selben liep, sô hâst dû alle menschen liep als dich selben. Die wile dû einen einigen menschen minner liep hâst dan dich selben, dû gewünne dich selben nie liep in der wârheit, dû enhabest denne alle menschen liep als dich selben, in einem menschen alle menschen, und der mensch ist got und mensche.

If you love yourself, then you love all others as yourself. As long as you love a single human being less than yourself, you cannot truly love yourself—if you do not love all others as yourself, in one human being all human beings: and this human being is God and man.

–Meister Eckehart, Sermon No. 13, “Qui audit me” (1325) in Meister Eckharts deutsche und lateinische Werke, vol. 1, p. 195 (J. Quint ed. 1936)(S.H. transl.)

On September 8, 1325, Eckehart of Hochheim, a nobleman and a Dominican priest, delivered a sermon in the Benedictine cloister of the Holy Maccabees in Cologne taking as his theme this passage from Ecclesiasticus: “He that hearkeneth to me, shall not be confounded: and they that work by me, shall not sin.” (24:30). Meister Eckehart was already a figure of some repute, having been called twice to teach at the University of Paris (where he obtained the title of Magister, by which he was known) and having three times been offered the position of provincial of his order. But this sermon, which survived in the transcription of some of the nuns who heard it, has emerged as one of the most important philosophical works of the fourteenth century. It is a theological discourse on one level, filled with mystic insights, but it is also a statement of philosophic detachment, what Eckehart calls gelâzenheit (a word which he coins) that seeks to redefine love in sacred and profane terms. But the sermon revolves about “hearing” (the archaic word “hearkeneth” of the King James version is simply “audit” in the Vulgate, or “hear”) or rather, understanding, the eternal Word. Three things, he says, prevent humans from reaching the necessary understanding: corporeality, multiplicity, and temporality. To commune with the Word, as he puts it, to “live in unity in the desert,” humans must overcome these obstacles. That struggle is the essence of human development, and in his view it rests on the development of a different attitude towards the self, fellow humans and God in which the self is overcome. This process is gelâzenheit, which might be translated as “letting go,” but certainly focuses on the sublimation of the conscious self and a willingness to forego material possessions. The images that Eckehart takes point carefully to the asceticism of the early church fathers as models for this process.

He then develops this idea in the context of a new doctrine of love in which love of self is carefully juxtaposed against the love of fellow humans and of God. He cites a passage from Paul of Tarsus in Romans 9:3 in which he wishes to be “cut off from Christ for the sake of my brothers.” Self-sacrifice is thus defined as the essence of love and the overcoming of the self (in his words, hie ist der mensche ein wâr mensche–thus is a human truly human). But this “true” human is essentially also what Eckehart calls a “just man.” For him, the demand for justice must be everything, what he lives and breathes to achieve, more important than the outer formality of religion. And it is radical in its social implications, as Eckehart the noble says “I call you not servants, but friends.” But it starts with the abandonment of temporal connections (omnia relinquere) in the quest for a mystical union with the spiritual. Daz hoehste und daz naehste, daz der mensche gelâzen mac, daz ist, daz er got durch got laze, says Eckehart—“the highest and most extreme thing that the human can give up, that is that he give up God for the sake of God.” These words may confound, and they certainly challenge the temporal and sacred authority of his time, but there is a clear internal logic to them, which challenges its audience to reject the paths they tread in favor of a new and mystical view of the world and humankind.

Below examine a manuscript of Meister Eckehart’s sermon “Qui audit me” dating to about 1370, found in the Stiftsbibliothek in Einsiedeln. The quoted passage is found in the right column at the middle of the page.

Listen to Michael Praetorius’s setting of Es ist ein Ros’ entsprungen (1609) sung by the Toelzer Knabenchor:

Happy Christmas!

Matthias Grünewald, An Angelic Choir Serenades Mary at the Birth of Jesus (from the Isenheim Altar, 1512)

Listen to Puer natus in Bethlehem by Michael Praetorius from the Polyhymnia caduceatrix et Panegyrica (1613-17) and the Musae Sioniae VI (1609) in a performance by the Gabrieli Consort. The text in Latin and German can be examined here.

Does the Constitution Follow the Flag?—Six Questions for Kal Raustiala

Justice Ruth Bader Ginsburg recently noted that, although one might assume that the Bill of Rights follows and limits the conduct of American officials wherever they go, “that is not our current jurisprudence.” UCLA law professor Kal Raustiala has patiently traced the way in which the flag was separated from the Constitution in a new Oxford University Press book, Does the Constitution Follow the Flag? I put six questions to Raustiala about his book.

1. The United States started with a notion of strict territoriality. As John Calhoun put it, “the criminal jurisdiction of a nation is limited to its own dominions and to vessels under its flag… it cannot extend it to acts committed under the dominion of another without violating its sovereignty and independence.” But today, Justice Department prosecutors delve into bribery payments made by British officials to Saudi officials concerning aviation contracts; they recently arrested a Swiss lawyer in Korea on charges of bribing an Azeri official, even though the conduct had no connection to the United States and was not criminal under Swiss or Azeri law. How do you account for the radical transformation of the American vision of strict territoriality over a period of 150 years?

Kal Raustiala

The simplest answer is that the rise of American power transformed ideas about the territorial limits of the law. In 1844, when Calhoun wrote those words, the United States was still a weak nation, eager to avoid entanglements with European powers. Strict territoriality limited our ability to reach out, but was also a shield that stopped others from reaching in. Today, the United States is a superpower. We extend our law beyond our borders because we have global interests. And, to a large degree, we do so simply because we can. Now that we wield a big sword, in other words, the shield is less significant.

That said, to some degree my book challenges the premise of the question. The era of strict territoriality was actually not so strict. Extraterritoriality–meaning the extension of domestic law beyond our borders–has long been a facet of American history. In the nineteenth century we routinely extended our legal system into non-Western nations as a way to protect Americans, and therefore American interests, abroad. An American in Shanghai a century ago who committed a crime would not have faced a Chinese court; instead, he or she would have been tried by an American judge sitting in the “U.S. District Court for China.”

That we ever had a federal court in China is fascinating but forgotten. (At least here–the Chinese haven’t forgotten it). It also illustrates that there is nothing new about extraterritoriality. What is new is the following: rather than simply extend American law to Americans living in “uncivilized” societies, today the United States routinely applies its laws against foreigners and citizens alike–and does so all over the world, including in the territories of other Western powers. We can do this because we have a huge market that gives us leverage over many actors. Our extraterritorial claims often irritate our allies, as they irritated the Chinese a century ago. But no one really has the power to make us stop. In fact, the more common response today is to try to emulate American extraterritoriality.

2. You present the presidential election of 1900 as a turning point for the idea that U.S. law had extraterritorial application. The advocates of a new American empire, led by McKinley, pursued a civilizing mission into the new territories gained during the war with Spain. On the other hand, William Jennings Bryan and his party decried this as imperialism and adhered to an older view. It seems clear from your account that both the McKinley and Bryan views are still with us to some extent, but who won this battle in 1900, and what were the consequences of the election for the notion of an extraterritorial constitution?

The election of 1900 was in many respects about whether the United States could and should become an imperial power. McKinley’s victory was widely seen as a popular endorsement of imperialism, since McKinley favored keeping the colonies–Puerto Rico, the Philippines–that the United States had just acquired from Spain.

McKinley’s victory in turn forced the Supreme Court to decide how our new imperial ambitions meshed with our constitutional traditions. The short answer from the Court was: they don’t mesh well. Following the lead of the political branches, the justices tended to believe that in order to be a great power–and everyone in 1900 thought that we were now a “power of the first rank”–the United States must not be hobbled in foreign affairs by the sort of restrictions found in the Bill of Rights. That meant that we had to be able to control foreign territories without necessarily treating them as candidates for statehood. At the time, no one thought Puerto Rico or the Philippines could ever become a state–they were too different racially, socially, economically. Therefore, the thinking went, we had to keep them as colonies. The Constitution, in other words, did not and should not follow the flag, lest it interfere with our rise as a great power.

Eventually our imperial moment passed. But the basic vision of the McKinley era–that American power required an active presence overseas, and that our domestic rules were inappropriate for the ruthless nature of global politics–were dominant themes from the Cold War through to the present day.

3. You quote Elihu Root saying that “the Constitution follows the flag—but it doesn’t quite catch up with it.” What did Root mean by this?

Then-Secretary of War Root tossed off this line in response to a question about what the Supreme Court had actually decided about the new American colonies. Americans of the time followed the litigation over the colonies very closely–crowds formed in the streets when Supreme Court decisions were handed down, and every newspaper had an opinion about the matter. Among other things, in these cases the Supreme Court declared that only “fundamental” constitutional rights applied in Puerto Rico and the other islands. They were also said to be “foreign in a domestic sense.”

What this all meant was a little hazy, but the upshot was that the islands belonged to the United States, yet were not really part of the United States. There was no right to jury trial, for instance. And perhaps most importantly at the time, tariffs applied to goods shipped from the islands to the mainland, just as if they were still Spanish colonies. This approach by the Supreme Court was widely seen as politically motivated; as another famous quip of the time went, “no matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.”

4. Most of your discussion goes to the question of whether the protections inherent in the Bill of Rights can be invoked outside of the United States by persons who come into conflict with U.S. authority. But isn’t there another way of viewing the question—namely, whether the U.S. Government, acting outside of the territory of the United States, is entitled to use powers the Constitution does not give it?

The answer to this question turns on the accuracy of the last part–when the United States acts abroad, does it use powers the Constitution never granted? Or does the Constitution give the federal government all the powers it needs on the global stage? There is a tradition of viewing some powers of the federal government as “extra-constitutional,” that is, simply inherent in sovereignty. So whether or not the Constitution says we can do X, if doing X is part of the concept of statehood, then of course we can do X too.

Whether or not you find this kind of logic persuasive–and many legal scholars do not–the powers granted by the Constitution, as opposed to the rights, have never been seen as limited by geography. For instance, the Constitution says the government cannot hand out titles of nobility, and no one has ever seriously claimed that rule could be broken when the President is abroad. Likewise, Barack Obama does not stop being commander in chief when he flies off to Oslo, nor does Congress gain the power to pass bills of attainder simply because it convenes on a cruise ship in international waters. One of the points I stress in Does the Constitution Follow the Flag? is precisely that we assume the Constitution follows the flag (and the executive branch) when it comes to powers, but we have a very different history and analysis when it comes to rights.

5. Today the United States is fielding forces in connection with contingency operations around the globe that—unlike prior conflicts—consist largely of contractors and not uniformed service personnel. What special problems does this raise in connection with federal jurisdiction?

The biggest problem is how to prosecute them when they commit a crime. Thanks to a ruling some fifty years ago by the Supreme Court, civilians cannot be tried via court martial. That generally means they have to be flown back to the States to be tried. (I’m assuming the contractors are Americans–if not, there is no clear constitutional bar to their trial by court martial or military commission in the field.)

Trial at home for crimes committed abroad can be complicated, however. Not all our federal criminal statutes apply to conduct that occurs beyond our borders. So if a contractor in Iraq or Afghanistan commits a crime, that crime may go unpunished simply because the local government cannot or does not want to prosecute, and American officials lack the legal basis to prosecute. In 2000 Congress tried to fix this problem but did not do so fully. In the years since, the use of contractors has of course skyrocketed, making the issue even more urgent today.

6. The United States is proposing, in connection with its counterinsurgency operations in Afghanistan, to establish its own security detentions regime under which potentially thousands of Afghan citizens may be held without the protections of Afghan law and without recourse to Afghan courts, unless U.S. commanders choose to allow that. The Afghan Government has very pointedly refused to authorize this system. But the regime appears to be in the process of implementation nevertheless. What does your study of extraterritorial jurisdiction tell you about this anomalous situation?

A fundamental principle of sovereignty is that one government cannot arrest and detain someone within the territory of another government unless the territorial government consents. That said, there is a long history of violations of that principle. Parts of Asia in the nineteenth century were carved up into different foreign zones. The U.S. District Court for China was a part of this system. And of course during the occupations of Germany and Japan we operated exactly the sort of police system you describe. In the book I recount the fascinating case of United States v. Tiede, in which a federal judge in 1970s occupied Berlin tries an East German hijacker that many West Germans viewed as a hero.

Relatedly, today you can go through U.S. customs and immigration in Toronto before boarding a plane to New York, even though the entire operation is within the physical borders of Canada. The U.S. Drug Enforcement Agency likewise searches the homes of drug traffickers in Mexico and other foreign nations. This is all part of a process of “offshoring” important security functions of the state.

The Afghan situation you describe is very far-reaching. It is also fluid and still emerging, so it is hard to say whether it falls outside the rough political bounds set by these existing examples. But in light of the history of extraterritoriality, especially with regard to very weak states, it does not sound completely anomalous.

Doctors and Torture, Iran Edition

Farnaz Fassihi of the Wall Street Journal reports on the mysterious death of Ramin Pourandarjani, a heroic young doctor who defied authorities by refusing to sign death certificates to cover up persons tortured to death at Tehran’s notorious Kahrizak detention center during the Green Revolution last July. But he went a step beyond this, testifying to a parliamentary committee about the abuses he witnessed and demanding accountability. Then, on November 10, Dr. Pourandarjani was discovered dead at a military clinic where he worked.

Over a period of nearly three weeks, Dr. Pourandarjani was called to the prison four times to treat the wounds of the detainees, according to his parents and Iranian media reports. At least three prisoners died during this time. One of them was Mohsen Ruholamini, the 19-year-old son of a conservative politician, who died in late July. The government publicly blamed Mr. Ruholamini’s death on meningitis. Mr. Ruholamini’s family immediately disputed that. In public statements at the time, his father, Abdol-Hossein Ruholamini, said his son suffered a broken jaw and died from torture in prison. In the medical report, Dr. Pourandarjani described Mr. Ruholamini’s cause of death as physical stress, multiple blows to the head and chest, and severe injuries, according to the doctor’s family and local press reports…

Over the next few months, security authorities called in Dr. Pourandarjani for interrogation, according to family members and reports in the Iranian media. They ordered him to revise the cause of death on medical reports from physical wounds to meningitis, his family members say. He refused. When the parliamentary committee called him to testify, he told them what he had witnessed, his family says. Dr. Pourandarjani’s statements to the committee aren’t public record, and the committee has said it won’t make its findings public. In the fall, Dr. Pourandarjani was arrested. According to his family and official Iranian media reports, he was detained in Tehran for a few days and interrogated by the police and medical officials. Family members say he was warned that if he continued to challenge the authorities, he could face medical malpractice charges and jail, as well as the loss of his medical license. Iranian officials say in public statements that the doctor was questioned about whether he had given detainees appropriate medical care.

He was released on bail and continued working at the military health clinic, where he also lived in order to save money. He downloaded applications for medical schools in France and Germany and told friends he wanted to study abroad. His military service would end in April 2010. He asked his mother to look out for a nice young woman in Tabriz for him to marry. In October, a few weeks before he died, both parents say Dr. Pourandarjani confided in them that he feared for his life because he refused to cover up what he had seen at the prison. He described threatening phone calls and said he was being followed.

Was Dr. Pourandarjani murdered by figures anxious that his exposure of torture and abuse at the prison could lead to prosecutions? That’s what it looks like. Iranian authorities have, in any event, scurried for a cover-up for his death, too. Their efforts have been extremely awkward. First they claimed he died in a car accident, then it was a heart attack, then suicide, and finally poisoning. Dr. Pourandarjani was an inconvenient witness to government-sponsored criminality.

The case points to the problems that doctors face in states that practice torture, like Chile and Argentina in the seventies, or Iran and the United States today. Doctors are inevitably roped into the process—either to oversee it, or to cover up the deaths that result from the approved techniques. In investigations of torture-homicides by U.S. authorities during the Bush Administration’s “War on Terror,” for instance, death certificates either facilitated a cover-up or exposed a homicide–much more frequently the former. This suggests that any number of American doctors were presented with the demands that Dr. Pourandarjani faced, and gave in to them. The fate of Dr. Pourandarjani also shows why professional organizations must not remain silent in the face of state-sponsored torture that seeks to silence or coopt medical professionals.

Code Orange: How the Bushies Got Punk’d by a National Security Fraudster

My friend Aram Roston’s article in the current Playboy introduces us to the Count Cagliostro of the Bush years.

The weeks before Christmas brought no hint of terror. But by the afternoon of December 21, 2003, police stood guard in heavy assault gear on the streets of Manhattan. Fighter jets patrolled the skies. When a gift box was left on Fifth Avenue, it was labeled a suspicious package and 5,000 people in the Metropolitan Museum of Art were herded into the cold. It was Code Orange. Americans first heard of it at a Sunday press conference in Washington, D.C. Weekend assignment editors sent their crews up Nebraska Avenue to the new Homeland Security offices, where DHS secretary Tom Ridge announced the terror alert. “There’s continued discussion,” he told reporters, “these are from credible sources—about near-term attacks that could either rival or exceed what we experienced on September 11.” The New York Times reported that intelligence sources warned “about some unspecified but spectacular attack…”

But there were no real intercepts, no new informants, no increase in chatter. And the suspicious package turned out to contain a stuffed snowman. This was, instead, the beginning of a bizarre scam. Behind that terror alert, and a string of contracts and intrigue that continues to this date, there is one unlikely character. The man’s name is Dennis Montgomery, a self-proclaimed scientist who said he could predict terrorist attacks. Operating with a small software development company, he apparently convinced the Bush White House, the CIA, the Air Force and other agencies that Al Jazeera—the Qatari-owned TV network—was unwittingly transmitting target data to Al Qaeda sleepers.

Aram’s report meticulously unravels the whole scam, in the process revealing how the gullible Bushies desperately wanted to believe Montgomery’s mumbo-jumbo and how his scam was effectively advanced by the security classifications they breathlessly attached to his every word—enabling him to nail down further contracts even after the CIA unmasked his hoax. Note, in particular, the interview with torture-apologist Frances Townsend, Bush’s counterterrorism advisor, who upholds the Bush tradition of never admitting a mistake. Apparently Townsend’s ready to buy snake oil again if there’s more to be sold.

Watch Aram discuss the story last night with Rachel Maddow:

Visit msnbc.com for breaking news, world news, and news about the economy

Read my interview with Aram about his book on the rise of another charlatan of the Bush era, Ahmed Chalabi, here.

Lithuania Fesses Up To Its Black Sites

The likely location of a CIA black site in Lithuania was first the subject of speculation in a piece that ran at this site, “Inside the World of Dusty Foggo.” When ABC News took the story mainstream, Lithuanian officials rushed to offer formal denials. Under pressure from European authorities, however, Lithuania’s parliament opened a probe. Today, the existence of not one but two black sites, operated with the knowledge of the Lithuanian government, is acknowledged by the parliamentary report.

This finding had been widely anticipated after Povilas Malakauskas, the head of the Lithuanian intelligence service, resigned last week without offering an explanation. Arvydas Anušauskas, the head of a parliamentary committee that issued today’s report, acknowledged that the spy master’s resignation was “partially connected” to the probe.

Agence France Presse reports:

“The sites existed, it was possible to cross the Lithuania border, and planes landed,” Arvydas Anušauskas told reporters as he presented the findings of a probe launched in early November by Lithuanian lawmakers. Anušauskas cautioned that it was not possible to say with certainty if any suspects were actually brought to the Baltic state for interrogation. “Regarding the ‘cargo’, I can’t confirm anything, because Lithuanian authorities could not carry out the usual checks, so what was being transported was unknown,” he explained.

That “cargo” probably included prisoners who were tortured in CIA custody, potentially including Khalid Sheikh Mohammed, who was waterboarded repeatedly at a black site that stocked water with labels giving an internet address ending in “.pl” for Poland. Polish bottled water is readily available in Lithuania.

The Lithuanian parliamentary inquiry reports, of course, that the Lithuanian president and other senior officials were unaware of what went on at the site. That explanation isn’t very convincing. To learn what went on there, they only needed to read the daily press, like the Washington Post, which provided accounts on the goings-on at black sites from December 2002. Lithuanians were on notice that torture was practiced at the sites, in violation of Lithuania’s criminal law. What did they do about it? They welcomed it, apparently.

Andrei Sakharov Misremembered

The twentieth anniversary of Andrei Sakharov’s death was not forgotten in Russia. But it’s distressing to note how it was remembered. A television special ran on Russian state television celebrating Sakharov’s life—but the Sakharov it celebrated was the father of the hydrogen bomb and a key contributor to the military technology of the former Soviet Union, not the tireless advocate of “peace, progress, and human rights.” Fedor Lukyanov, a prominent foreign affairs journalist, wrote in the daily Gazeta that Sakharov’s ideas about human rights had been “discredited.”

On the other hand, Russian President Dmitri Medvedev attempted to distance himself from Prime Minister Vladimir Putin by sending a message to a gathering of human rights activists in which he saluted Sakharov. “Andrei Sakharov, a world-renowned scientist and human rights activist, firmly believed that the future is created by all of us, and that it is important to strive for moral self-improvement,” Medvedev wrote. “He clearly understood that freedom and responsibility are inseparable. His own destiny serves as an example of a life spent following one’s conscience and adhering steadily to the principles that he defended, fearlessly and selflessly.”

By contrast, Vladimir Putin’s Russia marked the twentieth anniversary of Sakharov’s death with persecution and repression. Yuri Samodurov, a human rights activist and the former director of the Andrei Sakharov Center in Moscow, and Andrei Erofeyev, a former curator at the State Tretyakov Gallery, are standing trial for their roles in organizing an exhibition entitled “Forbidden Art—2006.” Sakharov’s friend Ed Kline describes the trial in a plea published in the Huffington Post:

More than one hundred witnesses are testifying against the defendants, quite a few producing word-for-word matching statements. They accuse Erofeyev and Samodurov of inciting religious hatred, even though many admit they did not see the exhibition–they were simply told that it was blasphemous and incited hatred of Russian Orthodox beliefs. It seems Erofeyev and Samodurov are blamed for everything under the sun: damaging public morals, “recrucifying Jesus,” undermining “the psychological health” of those who saw the art works. Simply put, the trial clearly violates the letter and spirit of the rule of law.

I have known Yuri Samodurov for nineteen years. He is an honest person and a dedicated, energetic, fearless, compassionate, law-abiding human rights activist. Erofeyev and he committed no crime. They did nothing that is not permitted by the Constitution of the Russian Federation. We are witnessing yet another misuse of the antiextremist legislation to target human rights activists and other nonviolent activists who are critical of the government.

The Samodurov-Erofeyev trial bears vivid witness to the Putin regime’s intolerance and its exploitation of the Russian Orthodox Church as cover for political repression. It shows a reach for legalistic techniques that make the Russian Constitution’s guarantees of free speech stand on their head. But above all it shows a fear of free thinking and criticism. If convicted, Samodurov and Erofeyev face a possible sentence to a labor camp—for curating an art exhibit.

The Music Master Meets the Age of YouTube

Rereading Hermann Hesse’s futuristic novel Das Glasperlenspiel (translated as Magister Ludi or The Glass Bead Game), I am struck by the character of the magister musicæ, the music master. This novel is supremely a work about music and the power it has to engage, challenge, and provoke human thought. The glass bead game that it describes is, at its point of origination, a cult of music. Like philosophers from Pythagoras to Galileo, Hesse presents music as an alternative language for humankind, a language that transcends many of the limitations of human society and facilitates the reconciliation of science and art. He quotes Novalis’s lines from Heinrich von Ofterdingen: “in eternal metamorphoses, the secret power of song greets us here below” (“Im ewigen Verwandlungen begrüßt / Uns des Gesangs geheime Macht hienieden,” Zueignung vv. 15-16).

The music master’s role is focal to this novel. He schools the chief protagonist Joseph Knecht in the art of meditation, and, in addition to Knecht, he is one of the most sympathetic embodiments of the ideal of academic-scientific service to humanity that lies at the center of Hesse’s utopian vision.

To some extent, the Glasperlenspiel is a roman à clef. Pater Jacobus, for instance, is clearly Jacob Burckhardt; Thomas von der Trave is Thomas Mann. Scholars have differed over the identity of the music master. Perhaps he is the Swabian pietist Friedrich Christoph Oetinger, perhaps he is Hesse himself. But I can’t read these passages without envisioning a different man as the music master: Joachim Kaiser, the long-time music critic of the Süddeutsche Zeitung. Hesse didn’t have Kaiser in mind when he wrote this book, of course; Kaiser was just launching his career when Hesse died. But in the end the music master is an office and not a person, and I see Kaiser as the current holder of this office.

His books Great Pianists in Our Time and Beethoven’s 32 Piano Sonatas and Their Interpreters are masterpieces of the critic’s art and the most important works on the subjects they address. In Germany, Kaiser is often feted as the “music pope.” (To his credit, Kaiser himself disparages such accolades). Even more than Dr. Hanslick (the music critic whom Richard Strauss so cleverly skewers in Ein Heldenleben), Kaiser has long had the power to make or break music careers. But he wields his critical voice with care and humanity. There is never a malicious slight or cute phrase turned at an artist’s expense. Kaiser’s writing is about homage to music, appreciating its special powers and its ability to enrich the lives of performers and listeners alike.

In Hesse’s futuristic novel, the music master turns silent as he reaches old age, withdrawing entirely to the world of music. Fortunately for us, Kaiser, who turned 81 last Monday, shows no sign of following suit. Indeed, he has turned to a new outlet for reaching his public. Nearly every week, he takes a query from his worldwide audience and gives us an answer by video. The videos are accessible by YouTube and at the website of the Süddeutsche Zeitung, and already number more than 30 installments. In them, you can learn about the license that Wilhelm Kempff takes with the texts or about Glenn Gould’s relationship to Mozart; you can get an assessment of the sonority of the tenor Fritz Wunderlich, hear a discussion of master conductors like Wilhelm Furtwängler and Herbert von Karajan, or learn about the etiquette of attending performances, including whether it’s appropriate to bring along the sheetmusic or close your eyes to listen. Kaiser’s Study of the Classics, as this series is dubbed, is one of the great goldmines in the YouTube library, a source of real insight and learning that defies the casual air with which the segments appear to be rolled out. Unfortunately, at present the Kaiser audience is limited to those with a working knowledge of German. It would be wonderful if the editors at the Süddeutsche reissued these tapes with some English subtitles, to insure a broader reach.

Opitz—Ach liebste laß vns eilen

Johannes Vermeer, Girl Interrupted at Her Music (1660)

Ach liebste laß vns eilen

Wir haben Zeit:

Es schadet das verweilen

Uns beyderseit.

Der Edlen schönheit Gaben

Fliehn fuß für fuß:

Daß alles was wir haben

Verschwinden muß.

Der Wangen Ziehr verbleichet

Das Haar wird greiß,

Der Augen Fewer weichet,

Die Brunst wird Eiß.

Das Mündlein von Corallen

Wird vngestalt,

Die Händ’ als Schnee verfallen,

Und du wirst alt.

Drumb laß vns jetzt genießen

Der Jugend Frucht,

Eh’ als wir folgen müssen

Der Jahre Flucht.

Wo du dich selber liebest,

So liebe mich,

Gieb mir das wann du giebest

Verlier auch ich.

Oh, beloved, let us make haste,

We have time,

But to tarry will injure

Both of us.

The noble gifts of beauty

Flee step by step,

And everything we have

Must pass away.

The ornament of your cheeks pale,

Your hair turns gray,

The fire of your eyes passes,

Your chest turns to ice.

Your little lips of coral

lose their shape,

Your hands melt away like snow,

As you grow old.

So let us now enjoy

Youth’s bounty,

Before we follow

With the flight of the years.

As you would love yourself,

So love me.

Give to me, so that when you give,

I will share your loss.

–Martin Opitz, Ode VIII: Ach liebste laß vns eilen from Oden und Gesänge (1618)(S.H. transl.)

“Ach liebste laß vns eilen” by Martin Opitz is a simple but quite beautiful love poem in the Silesian baroque style. It proceeds from the typical notion of carpe diem, the need to seize the moment of life before it passes, presented in this case as a request to the poet’s beloved, repeated several times over the 24 lines of the poem. The 24 lines can, however, be read in the form of classical Latin poetry as 12 lines, each interrupted with a cæsura or pause (as incorporated in the Nauwach setting below). The first word “ach” is more an exclamation or suggestion of worry, and it sets a tone from the outset of the effort to grasp time. It has a simple cadence that drives the work forward and makes it ultimately an easy poem to set as a song. The poet pursues this narrative using three pronouns—the narrative I, the intimate you, and the conjoined we.

The work is divided into three stanzas. The first stanza consists of an appeal to the poet’s love interest not to allow time to pass without the fulfillment of their love, because “everything” (that is, also love) fades with time. In the second stanza, beauty is itself described as the object of the powers of transformation. The physical aspects of the beloved beauty are catalogued (the fiery eyes, graceful cheeks, the coral-like lips) in a manner that reflects the esthetics of the baroque era. Consider a massive, flesh-filled painting of a master like Rubens, and you will always see prominent coloration given to lips and cheeks—much as this poem suggests, and even in the more restrained and intensely domestic settings of a master like Vermeer, as shown in his Girl Interrupted at Her Music, where the ruddy cheeks and lips are highlighted by a matching blouse. But these tokens of feminine beauty are transitory, they grow pale (verbleichen), turn soft (weichen) and finally expire (verfallen).

This sets the stage for the third stanza, beginning with the word “drumb” (wherefore), in which the poet refers to the “fruit of youth” and proposes that it be enjoyed. Youth is viewed as the age for love, beauty and sensual delights. Age marks the approach of death and the extinguishment of these earthly pleasures. The poem is a font of baroque esthetics and values, simply conceived and well executed.

The song has been taken from Johann Nauwach’s Teutsche Villanellen (1627). It is a perfect example of the Italian continuo song transformed to fit German circumstances.

Listen to a performance of the work by Andreas Scholl:

Pascal’s Principle of Convergence

Hieronymus Bosch, The Gardens of Earthly Delight (the outer panels) (1504)

Le monde juge bien des choses, car il est dans l’ignorance naturelle qui est le vrai siège de l’homme. Les sciences ont deux extrémités qui se touchent, la première est la pure ignorance naturelle où se trouvent tous les hommes en naissant, l’autre extrémité est celle où arrivent les grandes âmes qui ayant parcouru tout ce que les hommes peuvent savoir trouvent qu’ils ne savent rien et se rencontrent en cette même ignorance d’où ils étaient partis, mais c’est une ignorance savante qui se connaît. Ceux d’entre deux qui sont sortis de l’ignorance naturelle et n’ont pu arriver à l’autre, ont quelque teinture de cette science suffisante, et font les entendus. Ceux-là troublent le monde et jugent mal de tout.

The world judges things well, because it is in that state of natural ignorance which is the true place of the human. The sciences have two extremities, which converge: the first is that state of pure ignorance, in which we are left by nature; the other extremity is that at which great minds arrive, which, having traversed everything which man can know, discover that they know nothing, and recognize once more the point from which they set out. But this is a learned ignorance, which knows itself. Those who have set out from the stage of natural ignorance, and have not yet been able to arrive at the other, have but a hint of that real and adequate knowledge; and these are the assumers and pretenders to reason. These disquiet the world: and judge everything worse than the others.

–Blaise Pascal, Pensées pt 1, art vi, sec 25, pensée No 327b [308] (Frag. Sel. No. 117)(ca. 1649) in the Œuvres complètes p. 1166 (J. Chevalier ed. 1954)(S.H. transl.)

That Pascal’s theory of convergence emerges from his examination of Descartes and a series of Cartesian mathematical principles is revealed by this manuscript page on which the original appears. It is scribbled, with emendations, in the midst of a discussion of Cartesian texts.

The original manuscript page containing Pascal’s pensée

But the profundity of the thought is great and it demonstrates well the force of mathematical principle applied to philosophy and the study of humankind. Like only a handful of other figures of his age, Pascal struggled for a reconciliation of his deeply felt religious convictions with science and reason. He firmly embraced faith and science. He denied that a gap necessarily existed between them. Key to that is his brilliantly formulated circumscription of the limits of scientific understanding, and of human reason and perception altogether. The notion of convergence can be seen in images of antiquity, as, for instance in the hermetic serpent that coils to grab its own tail by its jaws. The extreme of human wisdom and the vacuous ignorance of nature meet in the same place, it suggests. But that is not to suggest their identity, because one is learned ignorance–and on this point it cannot be coincidental that Pascal takes the formulation of the great Nicholas Cardinal Cusanus (De docta ignorantia, 1440), who struggled two centuries earlier to force back the barriers religious doctrine would impose on science. The struggle to learn and understand is not a vain exercise, it counsels. Humankind’s earnest effort to try to understand is essential, both to its advancement in a scientific setting and its redemption in a spiritual one. But Pascal warns us about those humans who quickly form judgments of others and who claim more wisdom and knowledge than they can field. “These disquiet the world.” In the end, humans must be conscious of the limits of their perceptions and their reason, they must accept the natural role of doubt accounting for those limits. In this way, the mandates of faith could be reconciled with those of science, and the door could be opened for the great scientific advancement which would follow in the next centuries. Conversely, Pascal counsels the solace of religion as a necessity to the scientist. “The man without god,” he writes, will inevitably find himself “engulfed in the infinite immensity of spaces of which I am ignorant and which know me not…The eternal silence of these infinite spaces frightens me.”

Consider the exterior panels of Hieronymus Bosch’s The Garden of Earthly Delights, completed around 1504, and likely reflecting the influence of the thinking of Cusanus, with which Bosch was in any event well familiar. The original can be found in the Museo del Prado in Madrid. The earth is presented in grisaille with a moss-green tint as a fully encapsulated sphere intersected by a plane on which the new life takes shape. The earth is in the midst of the creative process described in Genesis, probably on the third day. It is vested with plant life, an atmosphere and clouds–but not yet with human beings (whose appearance is marked on the reverse side, in what may be Bosch’s most famous works). In the upper left corner, God the Father appears, supervising the process of creation, a Bible on his lap. An inscription across the top reads: “Ipse dixit, et facta sunt: ipse mandavit, et creata sunt“—”For he spake and it was done; he commanded, and it stood fast.” (Psalm 23) The earth in the course of creation is surrounded by a dark void reflecting the infinite, and unknowable, universe. Note that Pascal’s most important reflections start from his studies of the concept and proof for the existence of a void or vacuum, and its justification from both scientific and theological perspectives and that Pascal begins his study with geometry and built his early reputation with a study of the calculations necessary to measure the area of a sphere intersected by a plane. The rapport between geometry, with its mathematical attempt to describe relationships, philosophy, and the mysteries of life are carefully explored in Bosch’s work, just as they are unfolded by Pascal.

Listen to Johann Sebastian Bach’s Cantata BWV 132, “Bereitet die Wege, bereitet die Bahn!” (”Make Ready the Paths, Make Ready the Way!”), for the Fourth Sunday in Advent (premiered on Dec. 22, 1715), including the introductory aria and the aria which presents the philosopher’s challenge “Frage dein Gewissen: Wer bist Du?” (”Ask your conscience: Who are you?”) all taken from texts drawn from Salomon Franck’s Evangelisches Andachts-Opfer (1715); the performance is by Gustav Leonhardt and the Leonhardt Consort of Vienna with the Hannover Knabenchor.

Broadcom Prosecution Collapses as Judge Finds Sweeping Misconduct by Federal Prosecutors

On Tuesday, Federal Judge Cormac Carney (an All Pac-10 wide receiver for UCLA before George W. Bush appointed him to the bench) dropped a bombshell in the Broadcom case pending in a federal court in Orange County, California. Prosecutors had built a case against Broadcom founder Henry T. Nicholas III and CFO William Ruehle based on options backdating. The judge dismissed the charges against them, unleashing a torrent of attacks on the prosecutors who brought the case for potentially criminal wrongdoing. Carney’s choicest words had to do with the prosecutors’ bogus case against an engineer, Dr. Henry Samueli:

The uncontroverted evidence at trial established that Dr. Samueli was a brilliant engineer and a man of incredible integrity. There was no evidence at trial to suggest that Dr. Samueli did anything wrong, let alone criminal. Yet, the government embarked on a campaign of intimidation and other misconduct to embarrass him and bring him down.

Among other wrongful acts the government,

One, unreasonably demanded that Dr. Samueli submit to as many as 30 grueling interrogations by the lead prosecutor.

Two, falsely stated and improperly leaked to the media that Dr. Samueli was not cooperating in the government’s investigation.

Three, improperly pressured Broadcom to terminate Dr. Samueli’s employment and remove him from the board.

Four, misled Dr. Samueli into believing that the lead prosecutor would be replaced because of misconduct.

Five, obtained an inflammatory indictment that referred to Dr. Samueli 72 times and accused him of being an unindicted coconspirator when the government knew, or should have known, that he did nothing wrong.

And seven, [sic] crafted an unconscionable plea agreement pursuant to which Dr. Samueli would plead guilty to a crime he did not commit and pay a ridiculous sum of $12 million to the United States Treasury.

One must conclude that the government engaged in this misconduct to pressure Dr. Samueli to falsely admit guilt and incriminate Mr. Ruehle or, if he was unwilling to make such a false admission and incrimination, to destroy Dr. Samueli’s credibility as a witness for Mr. Ruehle. Needless to say, the government’s treatment of Dr. Samueli was shameful and contrary to American values of decency and justice.

The judge also notes that prosecutors stooped so low as to engage in a campaign of intimidation targeting one defendant’s thirteen-year-old son, whom they wanted to force to give evidence against his father. What the judge catalogues here is a laundry list of the tactics of Bush-era prosecutors who handled high-profile cases, especially cases which targeted political adversaries. The U.S. Attorney responsible for the case, and who ostensibly supervised the prosecutors involved, Bush holdover George S. Cardona, informed the judge he “respectfully disagreed with the decision.”

With the case against Broadcom disposed of, the question becomes what to do with the misbehaving prosecutors. If they are not disciplined–which has been the norm for the past eight years–that will furnish further evidence that their outrageous conduct is fully supported by those in charge at the Justice Department.