Month: March 2018

TERROR AND THE POLICE STATE: CHAPTER 18

/ Geoffrey Gibson / Leave a comment

 

 

[This is a short version of a book ‘Terror and the Police State; Punishment as a Measure of Despair’, published in 2015.  The book focussed on France after 1789, Russia after 1917, and Germany after 1933.  The instalments will follow the 21 chapter headings that are as follows: 1 Terms of Engagement; 2 Enduring emergency; 3 Righteousness; 4 Good bye to the law; 5 Instruments of terror; 6 Civil war; 7 Waves of terror; 8 Degradation; 9 Secret police; 10 Surveillance; 11 Denunciation; 12 Fear; 13 Popular courts and show trials; 14 Scapegoats, suspicion and proof; 15 Gulags; 16 Propaganda, religion, and cults; 17 Surrealism and banality; 18 The numbers; 19 The horror; 20 The meaning?; 21 Justification.  The short version is about one quarter the length of the original.  Each instalment is about 1200 words.]

18

The numbers

If you accept as an article of faith that each of us has our own dignity or worth just because we are human, then it is wrong for anyone to treat anyone else as a mere number.  We are at risk of doing just that when we seek to compile numbers of the victims of the three regimes that we have been looking at.

The essential crime of both Hitler and Stalin was that they degraded humanity by denying the right to dignity, by denying the very humanity, of people beyond count – by denying the humanity of one man, woman, and child multiplied to our version of infinity.  Every one of those victims – every one – had a life and a worth that came with that life that was damaged or extinguished.  In his book Bloodlands, Professor Richard Snyder endorsed the proposition that ‘the key to both National Socialism and Stalinism was their ability to deprive groups of human beings of their right to be regarded as human,’ and when we descend to statistics, we might do the same.

Should we not be looking at Jean Baptiste Henry the eighteen year old apprentice tailor decapitated for sawing down a tree of liberty?  Or the mother of Angelina and Nelly who was separated from her children and sent to a concentration camp because she had not denounced her husband?  Or the young schoolboy at Munich whose brain was so washed that he could not abide the sight of a dirty Jew in his classroom in the form of a crucifix?  Would he grow up to fire up the ovens?

But, we have to make at least some comparisons.  The Reign of Terror up to the execution of Robespierre accounted for about 30,000 deaths with another 10,000 who died in prison.  Much the greater part of those 30,000 were killed because of their alleged participation in the civil war.  The Revolutionary Tribunal despatched about 2,600.  About 300,000 were detained under the Law of Suspects.  Professor Hampson sought to add some perspective by adding that about 15,000 members of the Paris Commune were shot in May 1871, and that there were about 40,000 people executed after the liberation of France in 1945.  Of 14,000 victims of the Terror whose social origin is known, about 1150 came from the nobility and 200 from the upper middle class.  About seven out of thirty five of the highest caste of nobility was killed.  Death alone could not therefore account for the decline and fall of the nobility.

The French Revolutionary Wars of 1792 to 1802 cost about two million lives.  The Napoleonic Wars of 1803 to 1815 destroyed about five million lives.  We cannot get our heads around those figures any more than estimates of eight to ten million lives for the First World War.  None of these figures would mean anything to someone putting their head through the window of the guillotine or being dismembered by Napoleon’s cannons.

Stalin and Hitler murdered fourteen million people between them over twelve years.  Nearly 700,000 were shot in Stalin’s Great Terror of 1937 to 1938.  Some four million Soviet citizens were in the Gulag when Germany invaded the Soviet Union in 1941.  As we saw, the NKVD massacred many of their own prisoners as the Germans advanced in order to stop the Fascists getting their hands on more forced labour.  The Soviets sentenced a further two and a half million people to the Gulag during the war.  The NKVD remained active anywhere that the Fascists did not reach – including those poor wretches starving to death in Leningrad under siege.  More than half a million deaths were recorded in the Gulag in two years.  They all died without grace or dignity.  The Germans killed about three million Soviet prisoners of war, which is about the number of Ukrainian peasants that were starved to death by the Soviets in 1932-1933.  The total Russian casualties of that war, civil or military, were of the order of 20,000,000 which is more than two and half times greater than the casualties of all nations for the First World War.

Alan Bullock put a number of eighteen million on the victims of Nazi brutality for the whole of Europe and Russia (apart from the victims of the orthodox war) and he said this:

It is important to place these figures on record.  But because they can have the effect of numbing the imagination, which cannot conceive of human suffering on such a scale, it is equally important to underline that every single figure in these millions represents acts of cruelty, terror, and degradation inflicted on individual human beings like ourselves, a man, a woman, a child or even a baby.

Whatever else humanity can do, it cannot come to terms with its degradation like this, or, as the poet Chris Wallace-Crabbe said: ‘Whatever Christ meant, it wasn’t this.’

 

Here and there – Four movies

/ Geoffrey Gibson / 2 Comments

 

Darkest Hour

When you have been brought up with a myth that happens to be true, you get chary if anyone tries to fiddle with it.  For that reason, I did not see the recent film about Lincoln.  I put Lincoln on the right hand side of God.  I have a similar view about Churchill, but I am alive to and relaxed about his foibles and failures.  So, I could go and see Darkest Hour.  I thought it dragged a bit.  The lead (Gary Oldman) and the two women (Kristin Scott Thomas and Lily James) were excellent.  I wonder if Halifax and Chamberlain were that evil – trying to unseat a PM in wartime unless he agreed to negotiate with someone who couldn’t be trusted.  The prescience of the English Labour Party was invaluable then – and later.  I thought the film makers got it about right.  Lincoln’s cabinet thought he was an idiot.  Churchill’s thought he couldn’t be trusted.  Lincoln didn’t have the baggage of Gallipoli – but Churchill had been right about Hitler.  The train scene was an allowable fancy, but the scene with the full cabinet was spot on, word for word – about the war only ending when we are writhing in our own blood.  Churchill said he was surprised how elated some hardened MP’s had been.  They just wanted someone to take a stand. That was I think the turning point.  It’s sobering to think what may have happened had Halifax prevailed. One thing is sure – we wouldn’t he having this discussion – in English, or at all, since the history of the world would have been very different.

Sweet Country

The problem starts with the conception.  They thought they were making a Western.  How many Westerns have you seen about the fate of African Americans – where the most likely finale is a good old fashioned lynching?   Does not the idea seem both tasteless and senseless? Black Hats versus White Hats can be a high art form, but the fate of a people is not a fit subject for caricature.  The main white people in Sweet Country are either combinations of Hitler and Stalin, or irrelevant because they are saintly, or a decent relic of Empire.  The blackfella is doomed from the time he kills a white man, but we are taken through a cruelly long process that leads to the ultimate cliché – the innocent man listening to his scaffold being erected.  And any link to reality goes clean out the window in the farcical ‘trial’ scene, where the participants sit on deck chairs in front of a pub full of drunks cheering the home team – after a committal hearing, in which the judge calls the accused to give evidence.   The predicate is that a committal leads to a verdict and execution, sixty years or so after the last public hanging in Australia.  It’s not just bad theatre – it’s bad history, too. This was a ham-fisted disaster that does nobody any good.  And, irrespective of whether Bryan Brown can act – he always looked like a superannuated head prefect to me, a poor man’s Michael Caine – why does a whitefella get top billing over a blackfella, in a film said to be about the oppression of blackfellas, and where, for the removal of doubt, the blackfella is the White Hat, and the whitefella is the Black Hat?

Three billboards outside Ebbing Missouri

If, like me, you doubt the proposition that that which doesn’t kill you makes you stronger, you may relate to this film. In a smallish town in Missouri, the mother (Frances McDormand) of a raped and murdered child is not happy with what the police are doing.  She vents her anger on three billboards  that single out the Commissioner (Woody Harrelson).  She has no particular complaint against him.  As far as we can see, the police are doing what they can.  Her actions against the Commissioner are cruel on him and his young family because he is dying of pancreatic cancer.  When this is put to Mildred, her response is despicably tart.  (And she has a few shockers.)  The self-righteous anger of a victim can be both dangerous and nauseating.  It was for me in this film.  There is a ghastly cycle of violence and despair among many no-hopers, and the makers of the film tried to fit too much in.  The first object of the law is to end vendettas.  Not here – they just keep rolling along.  I wasn’t particularly grabbed by the lead performance.  Her part is that of a steely hard-assed bitch, who obviously let her daughter down and shows a remarkable capacity to do the same for her son.  She has a mask on at the start and she keeps it on.  If she showed compassion, or anything you would expect of a mother, I missed it.  Against that, Woody Harrelson’s part is engaging and uplifting.  Without it, the arvo would have been even harder.  I was neither entertained nor impressed by this movie.  I couldn’t see the point of all that anger and cruelty.  If Americans get that angry, they can produce someone like Trump.  What you get is the lack of tolerance and balance that bedevils all of us.  I believe that there is a great malaise in America, but I do not pay $13.50 for a seniors’ ticket to have that sad fact rammed down my throat.

The Post

It was my good fortune to hear Katie Graham speak to a large audience of lawyers in Washington D C in 1984.  She was clearly a person of great character – and she was treated that way by a large audience that she held in her hands.  Her role and that of The Washington Post in the Pentagon Papers and Watergate was still fresh in the minds of everyone there.  The press then enjoyed a level of renown that it has since sadly lost.  A film about her and her paper, and her editor, Ben Bradlee, starring Meryl Streep and Tom Hanks would be hard put to fail.  Washington 1971 looks a long way back now – wealth and privilege – is the press too cosy with government? – and gorgeous lamps and coverings.  And so frightfully male.  Graham is forever surrounded, and taunted or ignored, by ugly, condescending suits.  I thought Hanks was a little too much Boys’ Own at times, and the movie got a bit soppy and floppy near the end to prolong the agony – but otherwise I lapped up every bit of it.  Streep is immensely gifted.  She doesn’t have to engage in histrionics for you to know that.  Her performance is wonderfully cadenced – as when Bradlee taxes her for being too close to McNamara, and she responds by reminding him how close he was to Jack Kennedy – if Bradlee got invited on to the Kennedy yacht, surely he had to pull a couple of punches.  If I had a vote at the Academy, Meryl Streep would get it hands down.  The film reminds us that we need a strong press to deal with a corrupt or dishonest president – who hates the press.  And it’s not every day that you get to see a great actress playing a great lady.

Passing Bull 138 – The sex ban

/ Geoffrey Gibson / 2 Comments

 

The reaction to the Prime Minister’s sex ban was curious.  Many of the people who attacked the PM on this issue are the same people who complain that he never does anything.  They wheel out that weasel word ‘leadership’.  To my surprise and relief, Mr Greg Sheridan supported the ban in The Australian.  In response, I wrote a letter to the editor, which was published, as follows.

In something of a change for me, I am happy to support Mr Sheridan in what he says about the sex ban.  It is about abuse of power, not sex.  As I read the piece, I recalled a discussion I had with a neighbour that we knew as Old Jack.  Old Jack had flown 47 missions in Mosquitoes.  We discussed my namesake, Guy Gibson – Wing Commander Guy Gibson, VC, the leader of the Dambusters.  War heroes don’t get more sacred than Gibson.  But Old Jack said that many in Bomber Command doubted Gibson.  Why?  He went out with women of lesser rank.  What’s wrong with that?  Mr Sheridan states the obvious.  You can see it in large law firms; in the hierarchy of the churches; and worst of all in any uniformed service.  And that’s before you get to the Caesar’s wife point about Ministers of the Crown.

It was business as usual the next day.  I often find it hard to follow what Janet Albrechtsen and John Roskam are saying.  Neither liked the ban, but I have trouble seeing why.  Ms Albrechtsen said the ban was ‘patronising’ and ‘illiberal’.

It’s not surprising that the socially fashionable Turnbull would tack so close to the #Me Too movement, but his clunky, gender-driven over-reaction, like much within the #Me Too movement, is paternalism writ large.

Yet, before she resorted to the scattergun of labels, Ms Albrechtsen indicated that she understood at least part of the issue.

It’s not sex between consenting adults, even between a minister and staffer, that matters.  It’s a boss’s preferment of a staffer, arranging new highly paid jobs that matters.  Had Turnbull stepped up earlier, telling voters that such preferment and conflicts will not be tolerated, he would have done a fine and measured job.

Most laws, and all prohibitions, restrict freedom, and are therefore ‘illiberal.’  One such law is the law of murder.  Your freedom to fire a gun is restricted if the head of your estranged spouse is at the other end of the gun.  All gun laws are illiberal.  To object to them on that ground would plant you firmly in the moral and intellectual wilderness of Second Amendment America.   To object to any law on the footing that it restricts freedom is to invoke something close to a tautology.  It’s a little like saying that the police shouldn’t charge a person because that person will be defamed by the process.

Well, is the law patronising?  Does it assume that people may need protection when they might be better off if left to stand on their own two feet?

Now, this gets closer to the issue, but people should understand how much of our law is dedicated to protecting the weak against the strong – or, to put it differently, how much of our law is about restraining abuse of power or acting in bad faith.

Those who think that the law has nothing to do with morals are dead wrong.  If we put to one side infants, lunatics, and consumers, there are many areas of the law that are concerned with relief from oppression or bad faith.  A large part of our constitutional and administrative law is there to prevent government becoming overbearing on us.  The transactions of people in business are at risk if their conduct has been ‘misleading’, ‘deceptive’, or ‘unconscionable’.  A dispute among shareholders may be resolved by reference to what is ‘just and equitable.’  Majority shareholders may be restrained from conduct that is ‘oppressive.’  Directors and other employees have to act ‘honestly’ and ‘for a proper purpose.’  Large companies may be restrained from conduct that is ‘predatory.’  The laws of most Western countries provide that a corporation that has a substantial degree of power in a market must not take advantage of that power for the purpose of substantially damaging competition.  A dependant with a ‘moral claim’ on a testator may ask the court to make an ‘adequate’ and ‘proper’ provision for them.  Reports in the Fairfax press suggest that the laws of franchising need to change to give more protection to the franchisee – too many franchisors have the insouciant brutality of Caligula.

Those are statutory extensions of case law on the duties owed by people in positions of trust and confidence.  This is part of the law known as equity.  It goes back many centuries.  Here is how the basic premise was expressed in an old text.

If confidence is reposed, it must be faithfully acted upon, and preserved from any intermixture of imposition.  If influence is acquired, it must be kept free from the taint of selfish interest, and cunning, and overreaching bargains…..The general principle, which governs in all cases of this sort, is that if a confidence is reposed, and that confidence is abused, courts of equity will grant relief.

One way the law goes about enforcing these obligations is to ban the person in a position of trust from entering into relations that will put them in conflict in carrying out their trust.  This is what is called a ‘fiduciary’ duty.  It is very hard for a company director to retain a profit that he has earned as a result of carrying out his director’s duties.  Partners and staff of a business owe these fiduciary duties to their firm.  A sexual liaison between a partner and a member of staff may involve each in a conflict of duty and interest.  That being so, it is not silly to suggest that such a liaison may be unlawful under the general law as it stands.

A related part of the law deals with people who can influence others unconscionably as the result of an imbalance of power.  This is the law about ‘undue influence.’  Sir Owen Dixon said:

But the parties may antecedently stand in a relation that gives to one an authority or influence over the other from the abuse of which it is proper that he should be protected.

On policy grounds, that statement may apply to a Minister of the Crown propositioning a member of his staff.  It just depends on your point of view.

It is very hard for a lawyer to uphold a substantial gift from a client or for a priest to uphold a gift from a dying penitent.  The rationale of the law may be stated as follows:

By constructive frauds are meant such acts or contracts as , although not originating in any actual evil design, or contrivance to perpetrate a positive fraud….are yet by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and, therefore, are prohibited by law….the doctrines ….will be perceived to be founded in an anxious desire of the law to apply the principle of preventive justice, so as to shut out the inducements to perpetrate a wrong, rather than to rely on mere remedial justice, after a wrong has been committed.

Almost every word of that could be applied to the case of Mr Joyce and the reaction of the government.  Mr Joyce did not set out to do something wrong, but the tendency of his actions has been to violate public or private confidences and injure the public interest.  That in turn led the government to take preventive action to reduce the risk of this tendency to lead to this kind of harm in the future.

Our law has always been zealous to protect beneficiaries from their trustees.  It has been zealous not only in examining benefits obtained by those people we call fiduciaries – it has said that some kinds of transaction are so inherently dangerous, that it will not inquire into the merits of particular transactions – it will just ban them.

That is the course that the government has adopted in dealing with fiduciary obligations of public officers called ministers – at least when it comes to having sex with those who are under them and whom they are obliged to protect.  Barnaby Joyce entered into a relationship that could and did conflict with his public duties.  This was a clear breach of fiduciary duty – as Ms Albrechtsen may acknowledge.  The temptation was there for Mr Joyce to misuse his office, and persuade others to do the same, in order to favour his mistress.  It’s hardly surprising then that the government has followed one path of the law by deciding to ban certain transactions outright for those who owe fiduciary duties.

So our jurisprudence may have approached the Joyce Case through a few avenues, but it is a little hard to see what Paul Kelly makes of it.

Turnbull’s ban on ministers having sexual relations with their staff formalises what should be the case anyway…..It is one thing for Turnbull to justifiably take a stand and say ministers cannot have sex with their own staff.

That seems clear enough, but beware – Turnbull is a ‘declared progressive’ and so we then get this.

This is a progressive, not a conservative, movement.  It means libertarianism is being sacrificed to identity justice, a process catching many people out.  It assumes people cannot be allowed to pursue relationships freely because of the risk of exploitation on the basis of power or gender.  The progressive quest is for new rules and regulations to govern human relations.

This is not just about halting sexual abuse or harassment, an essential goal.  The progressive vanguard has moved far beyond this- it is now focused on power and argues that consensual sexual relations based on a power imbalance are suspect on grounds of exploitation.  Just think about that crazy idea.

You get a box of Jaffas and a smiley koala stamp if you can reconcile those statements.  This is labelling gone mad.  As I have tried to show, it has been the business of the law to rule on ‘relations based on a power imbalance’ as being ‘suspect on grounds of exploitation’ since the time when the Puritans ran England.  Having learned what we have in the last few years about relations in the churches suspect on these grounds, it is sad to see uncertainty and confusion in how we should now react.

And that’s before we get to the point that Ministers of the Crown hold positions of public trust and that there were issues of the use of public money involved in the Joyce Case.  Rarely does a day go by when the Murdoch press does not excoriate the ABC over its use of public money, but when it comes to obvious failings of a politician deemed to be a ‘conservative’ vote winner, they change their tune.

But perhaps it is not surprising that the Murdoch people get skittish about issues of integrity and their conservative political clients.  They oppose an integrity commission for the federal politicians – a move that is as sought after in the community at large as the sex ban that was imposed in light of the Joyce Case.