Why it is your duty to stop supporting the government →
not being a “Good German” →
Nuremberg principles / war crimes
The subject of war crimes has been on my mind lately.
The concept of “war crimes” seems to me to have a false dignity.
For one thing, because war crimes prosecutions are typically visited only on the losing party of a war — making them more like a theatrical extension of the triumph of the winners (like a victory dance or a taking of scalps) than an impartial judicial proceeding.
And secondly because so little of the deliberate and premeditated cruelty and evil of war falls under its statutes.
If you drop a bomb from an airplane that burns a young boy, rips his arms off and leaves him bleeding and screaming in the rubble, you’re infinitely more likely to be awarded a medal than to be indicted for your actions.
If you were to surgically remove his arms one-by-one in order to coerce his father into revealing state secrets, but you lose the war anyway, you might very well be brought up on charges.
The boy is no better off in either case, and the intentions of the perpetrator are not as different as they may appear.
We’re constantly being told that civilian casualties are an unavoidable consequence of aerial bombardment — usually by people who think that this constitutes a good reason not to raise a fuss when it happens — but to me this is evidence of premeditation and intent.
If you know that aerial bombardment is going to result in civilian casualties and you do it anyway, then you have intended to kill civilians.
You may believe that the cost in innocent lives was worth the results of this approach, but just to automatically declare this as if no evidence or argument were necessary doesn’t represent a defense.
I’ve heard the following sort of statement many times: “Of course we did not deliberately target civilians when we bombed the city.
Civilian casualties are inevitable in any campaign of this sort.”
The two phrases are in logical contradiction.
On the U.S. bomber Enola Gay dropped an atomic bomb on the city of Hiroshima, Japan in an attack that, if successful, could not have had any result that did not include thousands and thousands of civilian casualties.
Everyone who took part in that mission who cared to consider its results knew that they were going to be burning children alive, for instance.
Utilitarian debates continue over whether burning children alive is ever an appropriate thing to do, and if so under what circumstances, and whether the circumstances faced by the people who dropped the bomb on Hiroshima were among these.
Along with these debates is a good deal of convenient forgetting and denial of reality.
the Enola Gay is being exhibited by the Smithsonian:
[A] group of scholars, writers, activists and others have signed a petition criticizing the exhibit for labeling the Enola Gay as “the largest and most technologically advanced airplane for its time” without mentioning that the Boeing B-29 dropped the bomb on Hiroshima.…
The Enola Gay is exhibited at the Steven Udvar-Hazy Center near Dulles International Airport in Virginia, with other vintage warplanes.
Its explanatory placard is two paragraphs long and includes the restored airplane’s dimensions and the information that, while it was originally built to be used in the European fighting theater, it found “its niche on the other side of the globe.”
Update: A press release from the Smithsonian National Air and Space Museum denies that the Enola Gay exhibit doesn’t mention the Hiroshima bombing.
The complete text of the exhibit display is included in the press release and explicitly mentions the Enola Gay’s role in both the Hiroshima and Nagasaki bombings.
I don’t know whether to consider it a good sign or a bad sign that America is blocking out its memory in this way.
Is it bad, because in continuing to deny these awful facts it may behave as though they never happened — or is it good, because in trying to hide from this it exposes that there is still a conscience that can be upset?
(The denial of reality started early: President Truman, , called the city of Hiroshima “a military base” that was chosen “because we wished in this first attack to avoid, insofar as possible, the killing of civilians.”)
Several weeks after Hiroshima was bombed, the Nuremberg war crimes trials began.
I’ve spent some time in recent days reviewing some of the history and the transcripts from these trials, and also that of Adolf Eichmann which happened many years later in Israel.
Eichmann, who as the head of the Jewish Office of the Gestapo was instrumental in implementing its mass-extermination policy, did not in retrospect think of himself as a war criminal, a murderer, or even particularly hostile to Jewish people.
He was merely carrying out policies which represented the enthusiasms of people higher than him in the chain of command, over whom he had little influence.
In a closing statement in his defense, he said: “My life’s principle, which I was taught very early on, was to desire and to strive to achieve ethical values.
From a particular moment on, however, I was prevented by the State from living according to this principle.”
To me, this is a good summing up of our problem.
I’m tempted to make more of it than I should.
But after all, here’s Eichmann, head of operations for the Final Solution, on trial in Israel.
He’s been confronted with so much evidence and testimony that there aren’t enough lampposts to hang him on as many times as he clearly deserves, and he’s asked: “what’s your side of the story?”
It’s no surprise that his defense is pathetic.
On the other hand, I get this weird, perverse wish reading his testimony that he’d put forth something more vigorous.
He’s played a crucial role in the cold-blooded murder of millions of people — how could you do that without a passionate need, an urgent mission that you could now try to convey?
Instead, his testimony is day after day of “I was just passing on the policies of my superiors” and “the responsibility for what happened to the Jews once they got to the camps was in somebody else’s department” and “I can’t be blamed for that — the choice was never mine to make” and so forth.
You get the impression of someone who never really wanted to butcher millions of Jews, but just happened to have been transferred into a department where such work was, he would say, an unavoidable part of the job.
Why would a guy like me have wanted to commit such a ghastly crime?
No, that was someone else’s idea.
To some extent, this defense is just plain unbelievable.
There’s plenty of evidence that Eichmann not only knew what he was doing, but approved of it, and applied his expertise enthusiastically to making the butchery more efficient.
But the very fact that he clings so completely and pathetically to these excuses as the trial goes on is enough to make me believe that at some level he’s telling the truth about his motives or absence of motives.
He was willing to commit these acts of evil not because he thought they weren’t evil, and not because he was intentionally being evil, but because the protocol of his position did not allow for a consultation of his conscience to be part of his decision-making process and that was good enough for him.
This is the start of an article from today’s Wall Street Journal that I’ll interrupt below for a tangent, although it’s worth your time to follow the link and read the rest.
Bush administration lawyers contended last year that the president wasn’t bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn’t be prosecuted by the Justice Department.
The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in that with conventional methods they weren’t getting enough information from prisoners.
The report outlined U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national-security considerations or legal technicalities.
In a , draft of the report reviewed by The Wall Street Journal, passages were deleted as was an attachment listing specific interrogation techniques and whether Mr. Rumsfeld himself or other officials must grant permission before they could be used.
The complete draft document was classified “secret” by Mr. Rumsfeld and scheduled for declassification in .
The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful.
But at its core is an exceptional argument that because nothing is more important than “obtaining intelligence vital to the protection of untold thousands of American citizens,” normal strictures on torture might not apply.
The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued.
Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the “necessity” of using such methods to extract information to head off an attack, or “superior orders,” sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no “moral choice was in fact possible.”
I’ve seen this weird backwards-world description of the so-called “Nuremberg defense” pop up a in a couple of places lately.
The description in this Wall Street Journal article is typical.
It’s grotesquely ironic, since the principles adopted by the war crimes trials in Nuremberg were designed precisely to dismiss this sort of “following orders” defense.
Calling this the “Nuremberg defense” is kind of accurate, in that it was a popular excuse attempted as a defense at the trials.
But the way this term is being used now carries the implication that this defense was enshrined as a valid one by the Nuremberg tribunal — when exactly the opposite is true.
Here’s the part of the Nuremberg principles from which the Journal’s quote about moral choice comes:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
This was clarified elsewhere in the Nuremberg judgment:
As you can see, it says exactly the opposite of what the Wall Street Journal describes as the “Nuremberg defense” — and the legal position of the Dubya Squad’s lawyers.
“That in fact all the people pay for all the acts of their government… is a mere empirical fact; that they know themselves liable is the first indication of their dawning political liberty.
It is to the extent of the existence and recognition of this knowledge that freedom is real, not a mere outward claim put forth by unfree men.
“The inner political unfreedom has the opposite feeling.
It obeys on the one hand, and feels not guilty on the other.
The feeling of guilt, which makes us accept liability, is the beginning of the inner upheaval which seeks to realize political liberty.”
Over the last two days I’ve spent some time reading The Question of German Guilt by Karl Jaspers (E.B. Ashton, translator), which is based on lectures Jaspers gave in Germany in the aftermath of World War Ⅱ when he was allowed to teach again (his Jewish wife, and probably his politics, had gotten him kicked out during the Reich).
I came to this book for a few conscious reasons — most immediately because I had some store credit at a used book store, but more to the point because I had gone through a Hannah Arendt phase a while back (see, for instance The Picket Line ) and knew that Jaspers was a big influence on her, and also because I was curious enough to read through the University of Colorado report about the deceptive scholarship practiced by Ward Churchill.
Churchill, from the looks of things, is a shifty character who is dishonest in the way he argues.
His brand of dishonesty, at least that portion that has been well-documented by the University of Colorado investigative committee, would be considered par-for-the-course (or probably insufficiently disingenuous) if his career was as a politician or pundit, but hurrah to the University for holding him to a higher standard.
He was investigated because during the height of post- jingoism, denouncing him became a cause célèbre amongst the flag-waving set.
He’d made an attempt to derive rhetorical power from calling the victims in the World Trade Center “little Eichmanns” and this succeeded beyond his wildest dreams as he became, in the scope of every right-wing rifle, “that librul professor who thinks the people in the towers were Nazis who deserved to die.”
He was not misquoted, or even really misinterpreted much.
This was really what he meant to say.
In his words:
Let’s get a grip here, shall we?
True enough, they were civilians of a sort.
But innocent?
Gimme a break.
They formed a technocratic corps at the very heart of America’s global financial empire — the “mighty engine of profit” to which the military dimension of U.S. policy has always been enslaved — and they did so both willingly and knowingly.
Recourse to “ignorance” — a derivative, after all, of the word “ignore” — counts as less than an excuse among this relatively well-educated elite.
To the extent that any of them were unaware of the costs and consequences to others of what they were involved in — and in many cases excelling at — it was because of their absolute refusal to see.
More likely, it was because they were too busy braying, incessantly and self-importantly, into their cell phones, arranging power lunches and stock transactions, each of which translated, conveniently out of sight, mind and smelling distance, into the starved and rotting flesh of infants.
If there was a better, more effective, or in fact any other way of visiting some penalty befitting their participation upon the little Eichmanns inhabiting the sterile sanctuary of the twin towers, I’d really be interested in hearing about it.
When I argue for tax resistance, I often argue that being a taxpayer means that you share in the responsibility for how the money you give to the government is spent.
This argument of collective responsibility gets tangled up in arguments about collective guilt and, inevitably as Ward Churchill reminds us, collective punishment.
And I’ve found it very hard to explicitly delineate how such things work in a way that is useful and satisfying.
Issues of collective guilt and collective punishment also come into play in defenses of the U.S. and its actions, for instance in arguments about the decision to go to war in the nation of Iraq in retribution for the crimes of the person Saddam Hussein, or in the excuses for “collateral damage” in airstrikes.
I hoped that Jaspers, in analyzing “German Guilt,” might have some better answers.
He starts of by trying to pin down what is meant by “guilt,” as he believes we’re using too general a term and that this is part of our difficulty.
In his system, there are four varieties of guilt, which I’ll try to briefly describe:
Criminal Guilt
These are “acts capable of objective proof and [which] violate unequivocal laws.”
Only individuals, not groups, can be criminally guilty (although in some circumstances it can be a crime merely to belong to a criminal organization).
Charges of criminal guilt come from outside of the accused and guilt is judged by a court of law.
The court is not concerned with trying to make the accused a better person so much as trying to give justice to the victims. Anyone may accuse someone of criminal guilt and may have a valid interest in justice being done.
The proper response to criminal guilt is atonement.
Political Guilt
This is guilt that citizens bear for the deeds of statesmen and citizens, and means that all citizens face the consequences for the deeds of their nation.
(Political guilt may apply to various sorts of groups of people, not just nations, though it is national guilt that is focused on here.)
This doesn’t mean that individuals bear moral or criminal guilt for the acts done by other individuals in the name of the state.
Political guilt falls on people who oppose the régime in power as well as those who support it.
Charges of political guilt come from outside of the accused, and guilt is successfully judged by the victorious party in a war or capitulation.
As with criminal guilt, anyone may accuse citizens of political guilt and may have a valid interest in justice being done, and the successful judges are not so much interested in the fate of the guilty nation so much as they are in administering “justice.”
The proper response to political guilt is accepting liability and making reparation, though in reality this amounts to total submission to the demands of the victor.
Individual political liability properly “is graduated according to the degree of participation in the régime.”
Moral Guilt
“I, who cannot act otherwise than as an individual, am morally responsible for all my deeds, including the execution of political and military orders.”
Only individuals, not groups, can have moral guilt.
It is mostly an internal matter — I may accuse myself, but should only advise others out of loving concern for them, not of a desire to punish.
My judge is my own conscience, and those “friends and intimates who are lovingly concerned about my soul.”
Moral guilt cannot be erased or atoned for, but it becomes part of what you have to work with from the time you judge yourself.
The proper response is penance & renewal.
Metaphysical Guilt
This is the most abstract and, for me, difficult to understand.
It seems in part to be something like “survivor’s guilt.”
You notice that some people have sacrificed everything, heroically or quixotically, and you feel guilty for deciding to survive instead.
Your guilt is also a portion of a guilt for humanity in general for failing to live up to an ideal justice that we can all vaguely envision but never come close to living up to — even for such an ordinary human thing as favoring friends and loved ones rather than treating humanity in general wholly impartially.
You can’t avoid metaphysical guilt — if you could, you’d be like the angels, and free from the other forms of guilt as well — and like moral guilt, once you’ve got it, it’s yours to chew on for all your life.
Like moral guilt, it’s something to deal with inside of you and is not really the proper business of other people.
Your proper response to metaphysical guilt is to transform your self-consciousness before God, losing your pride in favor of humility.
He described how a German might feel this form of guilt in this way:
It was possible for us to seek death in humiliation — in when the Constitution was torn up, the dictatorship established in sham legality and all resistance swept away in the intoxication of a large part of our people.
We could seek death when the crimes of the régime became publicly apparent on , or with the lootings, deportations and murders of our Jewish friends and fellow-citizens in , when to our ineradicable shame and disgrace the synagogues, houses of God, went up in flames throughout Germany.
We could seek death when from the start of the war the régime acted against the words of Kant, our greatest philosopher, who called it a premise of international law that nothing must occur in war which would make a later reconcilement of the belligerents impossible.
Thousands in Germany sought, or at least found death in battling the régime, most of them anonymously.
We survivors did not seek it.
We did not go into the streets when our Jewish friends were led away; we did not scream until we too were destroyed.
We preferred to stay alive, on the feeble, if logical, ground that our death could not have helped anyone.
We are guilty of being alive.
It is the distinction between political and moral guilt that Jaspers spends the most time trying to define.
First, he says that the choice of being politically aloof is not really available to us.
“Every human being is fated to be enmeshed in the power relations he lives by.
This is the inevitable guilt of all, the guilt of human existence.
It is counteracted by supporting the power that achieves what is right, the rights of man.
Failure to collaborate in organizing power relations, in the struggle for power for the sake of serving the right, creates basic political guilt and moral guilt at the same time.”
But even if you resist the temptation to remain aloof and take care to avoid moral guilt, “all citizens of a country [are] liable [that is, ‘politically guilty’] for the results of actions taken by their state… [T]he liability is definite and limited, involving neither moral nor metaphysical charges against the individuals.
[But i]t affects also those who opposed the régime and its actions.”
When the political power fails to limit itself properly, when it works against what is right instead of for it, to the extent you contribute to this power either actively or passively (as the power will arrange the prerequisites for “passivity” to its benefit), your share of political guilt will also be moral guilt.
Political guilt, and the liability for it, is the only legitimate collective guilt, Jaspers says, and he limits it in many ways.
First of all, it is very much the result of “victor’s justice” and “might makes right.”
The stronger, more forceful adversary decides the crime and punishment, and none of this really contains much in the way of larger moral lessons.
(Jaspers believes that the rule of force can, under favorable circumstances, give way to the rule of “Right” — “a natural law to which both victor and vanquished may appeal.”
At this point, politics stops being the essentially arbitrary rule of the most powerful and starts becoming a collective intellectual project to discover and delineate the extent of “Right.”)
Secondly, while the proper punishment is the whims of the victor, mitigated perhaps by magnanimity and international norms and laws, the proper response of the guilty individuals is more-or-less to grin and bear it and to spread the effects of the punishment justly among themselves.
As time passes, the effects of political guilt dim and die away.
Okay, now that we’ve got some definitions out of the way, Jaspers turns to an example of the posters that started turning up in occupied Germany featuring a picture of the Bergen-Belsen concentration camp and the caption “You Are Guilty.”
Who is “You” and what kind of “Guilty”?
Jaspers says that when Germans are accused of being guilty, this might mean political, moral, or metaphysical guilt — any of which is likely true, though moral and metaphysical guilt are properly the sorts of things that people wrestle with internally and are not properly the subjects of accusations by others.
To the extent that it is meant to mean that Germans are criminally guilty, it is false in the majority of cases.
Jaspers also considers that it may just be meant as a curse, something like “you assholes!”
He spends some time discussing the ongoing Nuremberg trials, and the prosecution strategy of Robert Jackson, the American prosecutor.
He hopefully sees this trial as a magnanimous attempt by the allies to transform their hard-won opportunity to impose whatever form of justice they choose on conquered Germany into an opportunity to establish the precedent of using an appeal to Right rather than an appeal to force to try these political crimes:
For the first time, and for all times to come, it is to make war a crime and to draw the conclusions… The undertaking may appear fantastic.
But when the stakes become clear to us, the event makes us tremble with hope…
…The essential point is whether the Nuremberg trial comes to be a link in a chain of meaningful, constructive political acts (however often these may be frustrated by error, unreason, heartlessness and hate) or whether, by the yardstick there applied to mankind, the very powers now erecting it will in the end be found wanting…
It will either create confidence in the world that right was done and a foundation laid in Nuremberg.… Or disappointment by untruthfulness will create an even worse world atmosphere breeding new wars; instead of a blessing, Nuremberg would become a factor of doom, and in the world’s eventual judgment the trial would have been a sham and a mock trial.
This must not happen.
Jackson certainly seemed to have this in mind.
He thought that the international law he was helping to invent in Nuremberg “represents mankind’s desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world’s peace” and said “let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.”
By now, the dream of an international order of states in which impartial law makes the rule of force obsolete should seem almost as silly as the utopian communism that shared its century.
For some reason this was less obvious sixty years ago, when authoritarians and classical liberals alike saw a world government as the natural extension of their dreams. Clearly the United States, despite Jackson’s rhetoric, has been unable to resist the temptations that being the biggest bully on the block brings — it has enshrined the might-makes-right principle into a more-or-less explicit plank of its foreign policy, with no principled internal opposition worth the name, and has proven international law and its firm prohibition on aggressive war to be an unenforceable modernist prose-poem.
Putting that digression aside, while the Nuremberg prosecution was attempting to fix the specific criminal guilt of a specific number of defendants, it was very explicitly not trying to say anything about the guilt of the German people — not even its “political guilt” as Jaspers would have it, which had anyway (in his system) already been pronounced by virtue of the allies subduing and ruling a defeated Germany.
Political guilt being a fait accompli, and criminal guilt being decided by tribunals like the one at Nuremberg, there remains moral and metaphysical guilt, which each German must deal with individually or in a spirit of humble cooperation with each other.
You cannot compel another person to feel moral guilt, or even to evaluate it in himself (I’m going to follow Jaspers and/or his translator and use masculine pronouns as neuter pronouns — sorry if this gets your goat).
To feel guilt, you must be self-motivated by honest conscience and a willingness to repent if necessary.
There are a number of reasons a German who is not criminally guilty might nonetheless feel morally guilty, and Jaspers enumerates some:
“living in disguise” — some Germans pretended to be loyal to a government they loathed, throwing their Heil Hitlers and hiding their real thoughts.
“false conscience” — others really believed that they were doing the right thing, were acting in a spirit of idealism and self-sacrifice from noble intentions, and did not realize for a long time that they were supporting evil — such a person becomes guilty “by haziness, by unwillingness to see, by conscious seclusion, [or] isolation of his own life in a ‘decent’ sphere.”
He gives the example of a soldier who “kept faith with his comrades, did not flinch in danger and proved himself calm and courageous” but because he did these things in an evil cause, he bears moral guilt:
Duty to the fatherland did not by any means lead consistently to obedience to Hitler and to the assumption that even as a Hitler state Germany must, of course, win the war at all costs.
Herein lies the false conscience.
It is no simple guilt.
It is at the same time a tragic confusion, notably of a large part of our unwitting youth.
To do one’s duty to the fatherland means to commit one’s whole person to the highest demands made on us by the best of our ancestors, not by the idols of a false tradition.
It was amazing to see the complete self-identification with army and state, in spite of all evil.
For this unconditionality of a blind nationalism — only conceivable as the last crumbling ground in a world about to lose all faith — was moral guilt.
…“This is an order” — in the ears of many these words had and still have a ring of pathos as if voicing the highest duty.
But simultaneously, by shrugging off stupidity and evil as inevitable, they furnished an excuse.
What finally turned this conduct into full-fledged moral guilt was the eagerness to obey — that compulsive conduct, feeling itself conscientious and, in fact, forsaking all conscience.
“straddling” and “inner assimilation” — the attempt to find a silver lining, looking at the Nazi disaster and suspending judgment.
“self deception” — believing that if you just bide your time things will change on their own, or that when the German army wins the war or Hitler dies the state will change for the better on its own, or that it’s best to try to work from within the system, or that it would be better to avoid politics and just work subtly for spiritual uplift in the hopes that future generations will benefit.
Also the belief of people who didn’t join the opposition until the war was clearly lost and who now feel like this means they don’t have to wrestle with moral guilt.
“Whoever took part in the race mania, whoever had delusions of a revival based on fraud, whoever winked at the crimes then already committed is not merely liable [that is, ‘politically guilty’] but must renew himself morally.
Whether and how he can do it is up to him alone, and scarcely open to any outside scrutiny.”
using passivity as an excuse — in other words, claiming that because you did no overtly criminal acts you have no moral guilt either.
“The political performers and executors, the leaders and the propagandists are guilty.… But each one of us is guilty insofar as he remained inactive.
The guilt of passivity is different.
Impotence excuses; no moral law demands a spectacular death… But passivity knows itself morally guilty of every failure, every neglect to act whenever possible, to shield the imperiled, to relieve wrong, to countervail.
Impotent submission always left a margin of activity which, though not without risk, could still be cautiously effective.
Its anxious omission weighs upon the individual as moral guilt.
Blindness for the misfortune of others, lack of imagination of the heart, inner indifference toward the witnessed evil — that is moral guilt.”
“running with the pack” — I was unable to distinguish this by his description from “living in disguise,” above.
He also warns against using his system of dividing up different varieties of guilt as a method of hiding from your own guilt, the way a child might hide unwanted peas under a chicken bone.
Then he discusses four ways in which a person might try to avoid taking moral responsibility or to mitigate guilt:
Jaspers says that it is valid to note that after a certain point, effective resistance to the Nazi régime from inside German-controlled territory really was suicide.
People complied because the alternative was torture & death.
Some people try to say that the whole Nazi period was a matter of fate and inevitability for reasons of geography and history, and that individual choices and decisions didn’t really mean much.
Jaspers says that there are grains of truth in this, but that they aren’t very convincing as excuses for individual behavior, though they might serve as good warnings to similarly-situated nations.
That other people and other nations are also guilty is not a very good excuse either, but it is true that most of the nations of the civilized world failed to stand up to Hitler just as the people of Germany failed, and they should do their own soul searching.
But the purpose of this discussion is to understand German guilt.
You will occasionally hear the sophomoric sigh “we are all guilty” or that we are all capable of the same horrible crimes and that but for the grace of God, we too would turn into Klaus Barbie.
Jaspers dismisses this as “dishonest haziness.”
If a German manages to get past these and other such tempting excuses, he will morally judge himself and quite possibly find himself morally guilty (to add to the political guilt he shares).
What comes next is to purge this guilt (without ever fully atoning for it) through restitution, inner renewal and metamorphosis.
There are also many ways to dodge the responsibility to own up to your moral guilt and face the consequences, for instance:
mutual accusations
finding other people who you think are more guilty than you and spending your time worrying about them instead of yourself.
There’s not much to be gained trying to morally or metaphysically judge anyone but yourself.
self-abasement
trying to out-do other people in how guilty you proclaim yourself to be, using confessions of guilt in a self-aggrandizing way.
It’s better to do the work quietly and internally.
defiance
seeing your moral guilt as really something good and noble when seen from the right perspective.
“dodging into specialities intrinsically correct but unessential to the guilt question”
for instance, reiterating that innocent Germans were victimized too or arguing that because you have already suffered enough you shouldn’t also have to confront your guilt.
On the contrary, “We should question ourselves, should pitilessly analyze ourselves; where did I feel wrongly, think wrongly, act wrongly — we should, as far as possible, look for guilt within ourselves, not in things, nor in the others; we should not dodge into distress.
This follows from the decision to turn about, to improve daily.
In doing so we face God as individuals, no longer as Germans and not collectively.”
dodging into a generality
some idea that “ultimately justice will be done” or “from the point of view of the universe and eternity, none of this really matters” or “Germany was chosen to exemplify mankind’s sins” or “by our suffering we have already atoned.”
None of these excuses works, and they all have the effect of diminishing us.
This tendency not to take ourselves seriously as individuals paralyzes our moral impulses.… serving in turn to divert men from the sober task of doing what is really in their power — from improvement within the sphere of the comprehensible and from the inner transformation.
The proper response to German guilt has two parts: making amends, which includes paying the reparations demanded by the allies but also means individually seeking out and assisting those wronged by the Nazi régime (“Our life remains permitted only to be consumed by a task”) — and purification:
[P]urification is an inner process which is never ended but in which we continually become ourselves.
Purification is a matter of our freedom.
Everyone comes again and again to the fork in the road, to the choice between the clean and the murky.
As people begin to take responsibility for themselves and for the consequences of their decisions, this will be the method of reforming the political realm:
Political liberty begins with the majority of individuals in a people feeling jointly liable for the politics of their community.
It begins when the individual not merely covets and chides, when he demands of himself, rather, to see reality and not to act upon the faith — misplaced in politics — in an earthly paradise failing of realization only because of the others’ stupidity and ill-will.
It begins when he knows, rather, that politics looks in the concrete world for the negotiable path of each day, guided by the ideal of human existence as liberty.
In short: without purification of the soul there is no political liberty.
There is an element of “I am the professor, I’m in the front of the room, I have a theoretical edifice, you listen and write it all down good” about all of this.
Jaspers doesn’t really argue his position so much as he declares it, leaving it to stand or fall on how much it matches your own intuition.
I appreciate his attempt to separate categories of guilt, since no generic category seems capable of carrying all of the weight that the concept typically bears — this itself is enough to vault me to a new and more interesting level of confusion on the subject.
And I especially like the way he links the inward work of taking responsibility and self-judging with the outward work of fighting for liberty in the political sphere, in the quotes that lead off this page.
A couple of short bits:
The case of Ed & Elaine Brown, constitutionalist tax protesters of the “Show Me The Law!” variety who, after they got showed the law in the forms of fines and a prison term, holed up in their fortress and vowed they’d live free or die, has come to a close.
(See The Picket Line, for more on the case.)
The expected Waco/Ruby Ridge style massacre never happened, with federal marshals choosing to use cunning instead of firepower to bring in their prey.
So now the Browns can see what the law looks like up close — it looks a lot like the inside of a room with a locked door that only unlocks from the outside.
As I mentioned , a frequent point of contention in debates about conscientious tax resistance is whether (and if so, to what extent) paying taxes makes a taxpayer complicit in the deeds of the government.
Different people have taken positions at either extreme (not at all complicit, absolutely complicit) and at various points in the middle, and have deployed persuasive arguments and metaphors to argue their cases.
I’ll explore some of these arguments today.
I’m going to start off with some discussion of law and legal culpability.
The Nuremberg Principles
One reason a discussion of legal theory is important in what initially seems to be a discussion about moral, not legal, responsibility, is the Nuremberg Principles.
The people who drafted these Principles were trying to articulate what they supposed to be universal, eternal, and self-evident crimes.
(This was meant to solve the problems of jurisdiction and ex post facto law in the trials of Nazi war criminals, and also to formally outlaw such things as aggressive war.)
The Principles state, in part,
“Complicity in the commission of a crime against peace, a war crime, or a crime against humanity [elsewhere defined] is a crime under international law.”
and
“The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”
A number of war tax resisters have taken these Principles as an inspiration, and some have even adopted the conceit of saying that they are afraid that if they pay taxes they may risk being prosecuted under the theory the Principles articulate.
The United States government is certainly guilty of the crimes listed under that first bullet point, so — leaving aside the practical difficulties involved in holding anyone accountable for complicity with the United States government at this stage of the game — what must one do if one wants to avoid such complicity?
Must one resist paying taxes, for example?
Larry Rosenwald is one war tax resister who believes the answer to that question is an unequivocal “yes”:
To pay war taxes is to acquiesce in building weapons of mass destruction… what international law as derived from the Nuremberg principles arguably defines as a crime…
It is, simply, a wrong act for any pacifist, any adherent of international law, any person fundamentally opposed to American policy; and I do not understand what keeps such people from refusing taxes…
And he’s not alone.
Conspiracy theory
I quoted blogger FSK yesterday as saying, “If you pay taxes, you are as responsible for war as the soldier who kills people.
If you pay taxes, you are directly responsible for every bad thing government does.
Paying taxes is immoral.”
This representation bears some resemblance to the legal concept of conspiracy.
One set of jury instructions about conspiracy put it this way:
[W]here several persons conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine.
In contemplation of law, the act of one is the act of all.
Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan.
There are a couple of glaring problems with stretching the concept of conspiracy to cover taxpayers.
For starters, it seems hard to take seriously once you consider all of its ramifications.
For instance, I don’t think FSK really believes what he’s saying he believes.
He’s said on other occasions that he has an above-ground job at which taxes are withheld from his paycheck, and that while he’d be willing to take a job in the underground or “agorist” economy in order to avoid these taxes, he wouldn’t be willing to take a pay cut to do so.
Can it really be true that as a taxpayer he feels “directly responsible for every bad thing government does,” — as responsible as the people who directly carry out those bad things, but that he feels so blasé about this that he wouldn’t stop doing it if it cost him any money?
His excuse may be that he has to earn a living, but how is this different from the same excuse given by a soldier, Senator, or bureaucrat — assuming you believe, as FSK says he does, that a taxpayer is just as responsible as they are for their actions?
Secondly, to prove “conspiracy” in the legal sense, you have to show that the parties to the agreement agreed to work together to achieve some common end, and that either the end itself, or the methods they chose to reach that end, were illegal.
This isn’t as hard to prove as it might sound at first.
You don’t necessarily have to prove that the conspirators actually met or signed onto a formal plan.
As one set of jury instructions put it:
[I]t is not necessary to constitute a conspiracy that two or more persons should meet together, and enter into an explicit or formal agreement for an unlawful scheme, or that they should directly, by words or in writing, state what the unlawful scheme was to be, and the detail of the plans or means by which the unlawful combination was to be made effective.
It is sufficient if two or more persons, in any manner, or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common and unlawful design.
and another:
[A]ll who take part in a conspiracy after it is formed and while it is in execution, and all who, with the knowledge of the facts, concur in the facts originally formed and aid in executing them, are fellow conspirators.
Their concurrence, without proof of an agreement to concur, is conclusive against them.
They commit the offense when they become partners to the transaction or further the original plan.
Do taxpayers meet this sort of qualification?
If you’re putting on your prosecutor’s-hat, you can probably look at these instructions and say, sure, I could make it stick.
But if you’re defending the taxpayer against a charge of conspiracy, you’ve got a good trump card to play:
In short, if my client is accused of illegally conspiring with a government, by paying taxes to it — how can you suggest that there was some sort of “agreement” or “mutual understanding” if the government had to threaten my client to comply?
That doesn’t sound like an agreement to me.
My client isn’t an accomplice, but a victim!
Duress — How much can it excuse?
But just how good of a defense is it to say that you were paying taxes under duress?
Can such an argument always relieve you of all responsibility, or does it only work when certain conditions are met, or only relieve you of a certain amount of responsibility?
How much compulsion must the government use before it absorbs responsibility?
Is there a threshold?
Does it depend on what they’re trying to absorb responsibility for?
It couldn’t be the case (could it?) that the government could “force” you to murder someone by threatening you with a $25 fine for refusing — and that the government could take all of the guilt off your shoulders in this way.
Alas, in the debates about tax resistance, usually government compulsion is seen as an all-or-nothing sort of thing, and questions like these go unanswered.
William Lloyd Garrison said at one point that willingly paying taxes to a government that upholds slavery was wrong, but that to acquit yourself it is sufficient for you to announce that you are not cooperating willingly, and to strike an attitude that is consonant with that declaration:
[A man] may consent peaceably to yield up what is demanded of him, but not without remonstrance, and only as he would give up his purse to a highwayman.
He will not recognize it as a lawful tax — he will not pay it as a tax — but will denounce it as robbery and oppression.
Tolstoy agreed, emphasizing that although it was wrong to voluntarily pay taxes, under the Christian non-resistance principle that he (and Garrison) adhered to, it was also wrong to resist the government in seizing taxes:
A religious man may not resist by force those who take any of the fruits of his labour — whether they be private robbers or robbers that are called “the Government”…
The proper thing to do when the government comes calling, in this school of thought, is to refuse to pay voluntarily but to submit peacefully to distraint of property.
But J.G. James argued against such passive tax resistance, by saying:
It may well be questioned if the payment of rates or taxes is voluntary at all, since the account is presented in the form of a demand, and not a polite request.
Inasmuch as payment is compulsory in any case, is not Passive Resistance merely an awkward, expensive, and an inconvenient mode of payment for all concerned?
It’s easy to confuse these two cases:
in which someone actually forces you to do something (such as forcing you to stay in prison by locking the doors)
in which someone threatens you with unpleasant consequences if you do not do something.
In the first case, you don’t have alternatives to choose from, so you don’t have any blame for what you’re stuck with.
In the second case, though, your options have merely been changed.
You still have a choice to make, and that choice can be praiseworthy or blameworthy.
Hannah Arendt wrote:
…in the words of Mary McCarthy, who first spotted this fallacy:
“If somebody points a gun at you and says, ‘Kill your friend or I will kill you,’ he is tempting you, that is all.”
And while a temptation where one’s life is at stake may be a legal excuse for a crime, it certainly is not a moral justification.
If the tax collector says “give me your money or else,” that isn’t the end of the inquiry, but the time to say “or else what?” and then to weigh the options.
If I believed FSK’s argument that what the tax collector was saying was “be directly responsible for every bad thing government does or else” I’d be asking my “or else what?” with bluff-calling incredulity.
When you eat a Chiquita you’ve done your part
Can you be found legally guilty for payments you made under duress?
You certainly can, under some circumstances anyway.
Look at what happened to Chiquita (you know, the banana company).
Chiquita had been operating in Colombia and, as a cost of doing business there, had to pay taxes to some of the governments that control parts of the country.
Three of those governments were designated as terrorist organizations by the United States government, which has passed a law prohibiting anyone from funding such organizations anywhere.
In addition, there is an international agreement (as of ) that prohibits funding terrorist organizations.
It says:
Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:
(a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or
(b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
(On its face, this would seem to prohibit paying taxes to the United States government, but seeing as the government is a signatory to this agreement, and seeing as all of the signatories are governments, I’m sure there’s a loophole.)
In any case, Chiquita pled guilty in a plea bargain and was hit with a $25 million fine.
But I’m not sure if this really is relevant to the topic at hand.
Note that Chiquita was not charged with conspiring with these Colombian terrorist groups — wasn’t charged as a co-conspirator or accessory in their crimes — but was charged with a distinct crime of providing funds to terrorist organizations.
On the other hand, that crime may itself just be a sort of legal shorthand that amounts to essentially the same sort of thing.
I haven’t investigated the legal theory behind it.
It’s Caesar’s fault
J.G. James was a believer in law and government, and so he felt that when taxes or tax expenditures conflicted with conscience, the proper response was to do what could be done within the law to rectify the problem, but to go no further:
[I]t is the duty of a conscientious citizen to pay an unjust charge if he has tried in vain to prevent the measure passing into law, on the ground that he is no longer responsible for the expenditure of public funds, after he has done his utmost to control that expenditure by legalized means
This argument, that once the money is out of your hands you are no longer responsible for how it is spent, comes up frequently in debates about tax resistance — often even from tax resisters themselves, when trying to explain the limits of their resistance.
For instance, John H. Dadmun was a conscientious objector during the American Civil War who, in addition to refusing to serve in the military, refused also to pay someone else to serve as a substitute in his place (which was at the time a legal alternative to service).
This was because, he said, “that is the same as to go myself.”
But he was willing to pay a militia exemption tax (though it would take him some time to raise the money).
Someone chided him about this, noting that “the government can take the money and get a substitute.”
Dadmun responded:
“It might do so, but there is no provision into the law to carry that into effect; and furthermore, the Marshal has told me it had not been so used, but must be paid into government and he could not trace it further…”
Eventually…
[T]he brethren gave me almost a hundred dollars, and others lent me for Christ’s sake, not knowing whether I would be able to pay or not, and thus I was able to purchase my liberty, and satisfying the government, by “rendering Caesar his own,” with image and superscription thereon; and if he makes a bad use of it, he is responsible; as I have no further control of it.
G.W. Gillespe, another Civil War-era conscientious objector, had a nearly identical stand:
[T]he idea of hiring a man to kill for me would implicate me in the crime; so I refused to give even five cents for a substitute.
If I had had three hundred dollars, I could conscientiously have given it to Caesar as a last resort, to get exempt from the bloody field of carnal strife.
Some tried to persuade me that it was just as bad to pay the money as to hire a substitute, as the money was for that purpose.
The difference is great.
The Lord will not hold me accountable for the mischief that money, taken from me by force, would do when employed by others.
Caesar demands taxes of us; we pay them, according to the instruction and example of our Lord.
We render unto Caesar that which is Caesar’s, and Caesar hires a man to shoot his enemies for him; are we to blame?
By no means.
But to hire a man to fight in my place, would be like hiring a thief to steal in my place.
Both guilty.
Rendering unto Caesar
Here we hit one of the big stumbling blocks that Christian tax resisters have run into.
The New Testament is distressingly explicit, in Romans 13:
Everyone must submit himself to the governing authorities, for there is no authority except that which God has established.
The authorities that exist have been established by God.
Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves.…
[I]t is necessary to submit to the authorities, not only because of possible punishment but also because of conscience.
This is also why you pay taxes, for the authorities are God’s servants, who give their full time to governing.
Give everyone what you owe him: If you owe taxes, pay taxes; if revenue, then revenue; if respect, then respect; if honor, then honor.
If Jesus wanted us to know that we should resist taxes to governments that were going to apply the tax money in sinful ways, he was given every opportunity to make this clear when he was asked: “Is it right to pay taxes to Caesar or not?”
Instead, he responded with the koan “Give to Caesar what is Caesar’s, and to God what is God’s” which confused everybody at the time, and the meaning of which continues to defy consensus today.
The best the resisters could come up with to justify their position was either a confidently asserted, if somewhat strained reading of the “Give to Caesar” koan (one war tax resister insisted that Jesus delivered his koan during a time of peace in the Roman Empire, so Jesus was by no means countenancing war taxes), or the story from Acts 5 in which the apostles defied the law and continued to preach the gospel according to God’s explicit command.
Asked to explain themselves,
Peter and the other apostles replied: “We must obey God rather than men!”
Most Christian tax resisters took the “Give to Caesar” koan and certainly the Romans passage to mean that God does indeed command us to pay taxes, even to unjust governments, but took the Acts “We must obey God rather than men” statement to provide an occasional override:
Essentially “render unto Caesar and submit to the government, unless that means disobeying God.”
T.S. Grimké put it this way:
[If the ruler] require me to pay taxes, although one object of the taxes be the support of idolatry, or the waging of war, I comply, simply because he has a clear right to levy taxes, and the responsibility of applying them is with him, not with me.
He is lawfully possessed of the power on the principle of civil obedience, as taught us in the New Testament; taxes are among the usual and necessary instruments for the administration of government; the use to which he shall apply them, is not my province, but his: he requires nothing unlawful of me, and therefore I comply.
Here then is the distinction.
If he commands what is unlawful, as a means for the attainment of even a lawful end, I refuse obedience.
But if he commands what is lawful, intending when the command has been performed by me, to employ the fruit of my obedience in the accomplishment of unlawful purposes in which I have no hand, I obey, because he requires of me only what is rightful.
I have nothing to do with his motive or his object.
I would illustrate this by the case of a debt.
I am indebted to another.
He demands payment.
I am not at liberty to refuse, because I happen to know, or have reason to believe that he will employ the money, when paid, for unlawful or immoral purposes.
This follows from the principle already stated.
My duty is very clear, to pay the debt: the use of the money, when paid, is at once his right and responsibility.
This may be aptly illustrated by a modification of the case stated.
I am indebted to another; but the debt is not due.
He calls for payment, not having a right to do so, and I happen to know, that his reason for wishing the money then, is to make an improper use of it.
I am bound to refuse; because not being bound to pay then, I am volunteering to grant a favor, knowing that it will be abused.
On the same principle I can conscientiously pay taxes, knowing, that among other objects, the public money will be applied to pay judges and jurors for trying and condemning criminals to capital punishment; to pay the salary of the president of a college, who teaches that public prayer is unchristian, and the clergy a set of impostors; or to pay the expenses of war.
This seems to me the only safe and wise principle, and it furnishes a suitable criterion for civil obedience.
[However, if the] magistrate, instead of a general tax law divides the taxes, and lays on the advocates of Peace the war tax.
They cannot conscientiously pay it; because they are thus made the sole and direct instrument of carrying on the war, and without their compliance, it must be at a stand.…
…Obedience is due to the civil magistrate, not as a duty to society, but as a duty to God.
God only can then lawfully fix the land-marks of that duty.
This was also Edward Swaine’s argument against tax resistance by nonconformist Christians against government support for establishment churches.
And he was unafraid to take his argument to its logical ends:
If Cæsar say “Give me money,” we must give it; for God has nowhere said “Do not give Cæsar money,” or “Do not give Cæsar money without satisfaction that he will properly apply it.”
If Cæsar say “Do not preach,” Paul must refuse obedience, for Christ has said to him “preach!”
If Cæsar say to us, “Go to the North Pole” — or “wear a cocked hat” — we must do so; for God has not claimed our obedience to the contrary.
He has not said, “Do not go to the North Pole” or “go only where you please.”
He has not said, “Do not wear a cocked hat,” or “wear only what you like.”
Those things, then, concerning which God has claimed nothing of us, we must render unto Cæsar.
Swaine draws the line in this way:
God says to us in effect… If [Caesar] should say to you… “I resolve to establish the worship of Baal for the good of the Empire,” and to levy a tax for that purpose, the resources of the State are his, and you are bound to render the tax.
But, if he should say I hold it to be for the good of the land, that every one acknowledge Baal to be God, and therefore require the payment of the tax to be accompanied by a recognition by the payers of the godhead of Baal, you are bound, while you pay the tax, to refuse the recognition, though impaling or burning be the penalty.
Or, if the tax be collected under an enactment that every one who pays shall be considered as offering to Baal, you are bound to refuse the payment, for to pay in such case would be equivalent to worship, and a rendering to Cæsar of that which is God’s.
But I do not justify your refusal of taxes, because they may be levied for a purpose that my law condemns.
He who violates my law must answer, and that is not you who pay the tax, but he who levies it if a bad one.
It is he who misapplies the National Funds, not you who had no rightful command over them to apply or misapply.
You have no responsibility, and violate none of God’s laws, if your tax dollars are spent in sinful ways, according to Swaine, because “the tax-gatherer comes… not for a contribution, or subscription, or aid, but for property no longer the subject’s to give or to withhold, and no longer under his rightful control…”
Taxes for bad objects are to be paid, not because we can be excused for helping evil by any voluntary act, that we are morally free to forbear, nor because the payment of such taxes will not help evil, for it will help evil, just as much as the payment of a debt to one who is going to misapply the money will help the evil, — but because the tax is not the subject’s any more than the debt is the debtor’s to help with or to withhold.
The payment therefore is his duty, for he is not morally free to decline it, although it will help evil.
Is paying a tax like paying a debt?
This comparison of taxes to debts, as used by Grimké and Swaine above, was an important metaphor in the ongoing debate about tax resistance.
If paying taxes to the government is good in and of itself, because God has so decreed it, then taxpaying can’t simply be judged according to its consequences.
A tax payment, in this way of thinking, is not a donation or a subscription or a contribution that is made voluntarily, but is a duty akin to repaying a debt.
You can’t ethically refuse to repay a loan because you think the person you owe money to will spend it unwisely.
Here’s an example of how this metaphor was used by one tax resister:
Joshua Maule was a Quaker advocate of war tax resistance.
When a general tax was increased by a certain percentage in order to pay for war expenses (with the government explicitly saying this was the reason), Maule refused to pay this additional fraction of his taxes, and he insisted that this was the only position consistent with traditional Quaker teaching regarding war.
Maule’s critics asked him why he continued to pay other taxes (like excise fees) or the remaining portion of his general tax — since surely some of these taxes would also go to pay for war.
Nathan Hall compared Maule’s stand to someone trying to avoid drinking intoxicating beverages by, for instance, only drinking 75% of a bottle of 50-proof (25% alcohol) liquor:
We both have a testimony against the use of ardent spirits, but are, being very thirsty, placed in a situation where we can get no water except some that has a small portion of whiskey in it.
Being under the necessity of taking something, thee may, by inquiry and calculation, find what proportion of the objectionable article is contained in it, and leave just that much in thy bowl; while my understanding will be that in partaking I partake of both good and bad, and in refusing refuse both.
So that with me the question is and has been, not what portion I should pay so much as whether any at all.
Maule responded by trying to draw a sharp line between ordinary civil taxes, which like a debt he must pay regardless of how some of it may be used, and explicit war taxes, which fall under a different rule:
The arguments used in reference to what disposition the officers of the law might make of the money collected appeared to me to be valueless.…
I am not accountable for the acts of other men: if I owe a just debt, I must pay it; if the person receiving the money uses it for a bad purpose, the accountability is with him; but if he demand money of me avowedly to be used in any way to the plundering of my neighbor, destroying his property, or taking his life, then if I furnish money thus demanded I become an accomplice in the evil work and accountable for the sin.
I consider our civil taxes a just debt that should be promptly paid, but I am satisfied that no human authority has either a moral or a religious right to demand of me money or means of any kind to aid in destroying the lives and property of my fellow-men.
Samuel Allinson put forward the most forceful attack on the tax-as-debt analogy in .
First off, he denied outright that God has commanded us to give Caesar anything that Caesar plans to put to a sinful purpose: “if tribute is demanded for a use that is antichristian, it seems right for every Christian to deny it, for Cæsar can have no title to that which opposes the Lord’s command.”
Having knocked out the divine pillar upholding taxpaying as a moral duty, he then proceeds to attack the idea that taxation represents some sort of secularly-contracted debt, or part of an implied “social contract.”
Allinson argues that no Christian would agree to the terms of a contract that might require him to do the devil’s work:
Every valid contract is voluntarily entered into, and as it is the duty of every one previously to see that his engagement is innocent, so when his promise is purchased by a consideration given it would be dishonest and deceitful not to perform it, the other party having, as it were, deposited so much effects in his hands, which he is to render back according to agreement and when received the receiver has a right to apply it as he pleases without any account to the payer, but in the case of taxes he who gives has a right to call to such an account and therefore seems himself liable for and privy to the application.
Every man has or has not given his assent to the government he lives under, in the first, he has formally declared his allegiance thereto, in the latter, that allegiance is implied in consideration of his receiving the protection and benefit of it in the safety of his person and the security of his property, in both, it is no more than to be “true and faithful” which can never mean a compliance with every requisition, for we owe a superior allegiance to the King of Kings, and whenever the requisitions of man run counter thereto we “ought to obey God rather than men”
…
We have never entered into any contract, express or implied, for the payment of taxes for war, nor the performance of anything contrary to our religious duties…
Conclusion?
So have we made any progress here?
We’ve at least been able to review the question from several angles and to get some historical perspective on how it has been wrestled with.
I think I’ve demonstrated that both of the extreme positions — that paying taxes makes you a fully-guilty accomplice in whatever the government then does, or that paying taxes because it is involuntary is a decision without ethical import — have serious flaws.
I’ve spent a lot of time on the Christian and the legal viewpoints, but as an atheist and an anarchist, to me those viewpoints are often only tangentially advisory at best and mere curiosities at worst.
For me the question is an ethical one that has to be resolved with my reason and my conscience.
And as best as I can make out:
I am under no original ethical obligation to pay a tax.
Taxpaying is not in and of itself good, and I did not in reality enter into something akin to an agreement or contract that I would be unethically violating by failing to pay.
Given that, I have to evaluate my decision to pay or not to pay a tax by looking at what consequences I expect will result — in other words, by imagining two worlds, one in which I paid the tax and one in which I haven’t — and choosing from them which one I’d prefer to be in.
By doing this, I also imagine two of me, one who paid the tax and one who didn’t, and I choose which one I want to become.
In doing this, as with so many other decisions, some of my considerations are ethicalish (which of these worlds is more just? which of the possible me am I more proud of?) and some are more ordinarily self-interested (in which world am I more satisfied or better-off or esteemed?).
This is, as far as I can tell, how it is and how it should be.
And where this has led me so far is where I’m at.
Resisting some taxes completely (the federal income tax), others not-so completely (federal excise taxes), others hardly at all (the state sales tax), others dysfunctionally (the self-employment tax, which I don’t pay voluntarily, but which I accept will probably be seized).
Along the way, I recalculate my situation and recalibrate my decisions based on my best judgment and my evolving understanding.
And these wanderings through the thoughts of people who have grappled with these conundrums before me don’t hurt.
You may have heard that the first of the Guantánamo show trials has found an associate of Osama bin Laden’s (widely described as his “chauffeur”) guilty of “providing material support for terrorism” in what I think is the first “war crimes” trial the U.S. has conducted since the ones in the wake of Japan’s defeat in World War Ⅱ.
In the post World War Ⅱ war crimes trials, particularly the ones in Nuremberg, the issue of jurisdiction and ex post facto law was debated.
The defense argued that it violates the principles of justice to charge a defendant with something that wasn’t a crime in the jurisdiction in which they lived and operated, and indeed wasn’t made a crime until after it was committed.
The prosecution argued, successfully, that the war crimes the defendants were being charged with were globally applicable and existed in some sort of implied form even before they were codified in the course of the indictment.
Kind of an iffy argument — the lead prosecutor called the trial a “desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world’s peace” — but it worked.
The same thing happened in the latest war crimes trial.
The defendant was convicted of providing material support to terrorism, a crime that Congress defined in the Military Commissions Act of , long after the defendant had been captured.
So, naturally, the defense raised the ex post facto problem.
And, as you might guess, the judge dismissed it in a similar way to the way it was done at Nuremberg: saying that the act merely codified what had already been considered war crimes.
For those people who think that the Nuremberg Principles justify tax resistance as a way of avoiding participation in war crimes, this ruling, which says that there has been a long-standing implicit understanding that providing material support to terrorism is a war crime — one that the Military Commissions Act provides one possible codification of — may be some interest.
A terrorist, the judge wrote, is a person “who intentionally kills or inflicts great bodily harm on one or more protected persons” [generally-speaking: civilians, wounded soldiers, or medical / religious military personnel] “or intentionally engages in an act that evinces a wanton disregard for human life” (the statute the judge is quoting goes on from this point to qualify this further by saying “in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct.”)
A taxpayer in the United States certainly provides material support for acts that evince a wanton disregard for human life.
Now, assuming for the point of argument that any U.S. court would take seriously a tax resister’s defense on this ground, Congress could just rewrite the law to explicitly define terrorism in such a way that it excludes the government, or to define material support in such a way that it excludes paying taxes to the government.
But remember that the judge in this case said that the war crimes of terrorism and of supplying material support to terrorism existed as such even before Congress formally codified them.
Because of this, and because war crimes are of international scope and jurisdiction (which is to say that any tribunal anywhere formed at any time under any ad hoc sorts of rules seemingly can try anyone for war crimes committed anywhere at any time) such Congressional tinkering might not be very meaningful.
Myself, I’m pretty sure the idea of “war crimes” isn’t worth much.
The prosecution in Guantánamo is even trying to stretch the concept to cover all guerrilla warfare — anything where a non-uniformed irregular attacks even a legitimate military target — so they can prosecute just about anyone who resisted them in Afghanistan or Iraq as a “war criminal.”
Imagine if you will the shoe on the other foot here!
The Japanese Imperial Army makes a surprise land invasion of Oakland, California.
Thirteen year old Clint Eastwood grabs his hunting rifle and prepares to defend the family home, but his father grabs his arm and says “by god, I didn’t raise my son to be a war criminal!”
The good news is that I’ve got a paying gig that’s keeping me very busy.
The bad news is that I’ve been very busy, and haven’t been able to update The Picket Line as much as I’d like.
: a bunch of links I thought were interesting enough to share but that I’ve given up hope about being able to weave in with some original commentary.
The European Court of Human Rights has denied an attempt by The Peace Tax Seven to establish that a country’s unwillingness to allow people to legally refuse to pay for military spending is a violation of the rights and freedoms set out in the European Convention.
The number and percentage of Earned Income Tax Credit claims that are fraudulent — those in which the person claiming the credit doesn’t qualify for it — has increased exponentially in recent years, and the IRS hasn’t been able to keep up.
Vargarquista at anarkismo.net writes about Smuggling as a strategy of tax resistance (Spanish).
This is a particularly urgent subject in countries that rely more on sales and value-added taxes than on taxes like poll taxes and income taxes that individuals can more directly resist.
If the “FairTax” scheme that some are pushing in the United States ever came to pass, this would become more of an issue in the U.S. as well.
(“Smuggling” is my best translation of “el contrabando,” but the author seems to include a lot of different sorts of underground-economy activity under that term.)
David John Marotta has an intriguing idea about manipulating the timing of traditional-to-Roth IRA transfers and recharacterizations so as to maximize your tax-free capital gains. It’s somewhat complex but very clever. Basically, you do a traditional-to-Roth conversion into several different Roth accounts using as many different investment strategies. Then file tax extensions so that you extend the amount of time in which you can recharacterize those conversions. Wait and see which of your new Roth accounts appreciate the most; keep those (if any) as Roth accounts in which the appreciation will remain tax free and pay the taxes on the principle now. For the rest, recharacterize them as traditional IRAs again, and avoid paying taxes on them now. Follow the link for details and a more leisurely and clearer explanation.
Radley Balko at The Agitator reminds us of this section from Dubya’s address to the nation on when he was launching the Iraq War:
And all Iraqi military and civilian personnel should listen carefully to this warning:
In any conflict, your fate will depend on your actions.
Do not destroy oil wells, a source of wealth that belongs to the Iraqi people.
Do not obey any command to use weapons of mass destruction against anyone, including the Iraqi people.
War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, “I was just following orders.”
I love the smell of moral clarity in the morning.
This video is at least a year and a half old, but I only just now stumbled on it:
Transcript:
Withhold Your Tax
You may agree with the legal position that by paying taxes to a government which is engaged in serious criminal offences, you are assisting the crimes by providing the financial means which affords the government the ability to go to war.
If you agree with this position and feel motivated to act on it, there are steps that you can take to suspend your financial support to the government.
Interviewer: So, Margaret, you worked for William Hill… what did you do, what do you do?
Margaret: Well, I work in a betting shop basically.
As I am concerned about the legality of the invasion of Iraq, and I have been informed that to pay tax to a regime indulging in illegal warfare is in itself a crime — conduct ancillary to genocide — I thought: I’ve got an idea to write to my boss and ask him to withhold tax, income tax, which I did — fully expecting not to get any kind of response at all (they might kick it into the long grass and deny all knowledge because it was too much of a hot potato).
But to my amazement, I got a response inviting me to a meeting with the area manager and a chap from Personnel, and we sat down and we discussed the legal implications of paying tax to the U.K. government.
And of course they raised all the normal concerns about the legality of not paying tax, and they showed us a copy of a letter that they had received from the Inland Revenue, so William Hill actually wrote to the Inland Revenue, bringing this matter up, and got a response!
It was the usual whitewash, along the lines of “we are not aware of any law, blah blah,” — however, they also included in that letter that they’d had a series of other inquiries from other people (they didn’t say whether it was just individuals or whether they were other companies).
So the Inland Revenue had already been contacted by other people, already.
So, by the end of the meeting, the area manager of our shops and a chap from Personnel, they both seemed pretty-well convinced of the legality of withholding taxes — of course he had to go to the board of directors: if they’re going to withhold my tax, they’ve got to do it for the whole company, haven’t they, or not at all?
So we’ll see what happens.
Interviewer: Have you got any advice for other people who might be watching you, thinking about how… if they might take the same steps?
Margaret: Go with the courage of your convictions.
Without fear, you know?
We have to change it.
This is a democracy — [laughs] or it was — we are living in a country that’s supposed to protect the freedom of speech.
We have to do it, just ordinary people.
It’s not “oh, why are they doing it?”
We’re all just as powerful, even though you may not be in positions of power.
It is our duty, I suppose, to acquaint ourselves with the law, because ignorance of the law is no excuse in law, and that’s an important principle.
Interviewer: You mentioned some employment law in there.
What is that about?
Margaret: You have certain rights under employment protection law, and if you make this sort of inquiry they cannot sack you.
Margaret’s action (of which I have not been able to find any more information on-line, including her last name) was promoted by the Make Wars History “civil obedience campaign,” the conceit of which is that the campaigners are taking seriously international laws against aggressive war, war crimes, and the like, and they hope to use a grassroots political movement to enforce these laws when the government breaks them:
We will stop governments from waging war by ensuring that police arrest leaders who start wars, courts try politicians for complicity in war, taxpayers withhold taxes that pay for war, armed forces refuse to fight illegal war, businesses refuse to supply weapons of war, journalists tell the truth about war, the public learns the laws of war and Parliaments legislate to prohibit all war.
Mostly coincidentally, while I was in the middle of my Tolstoy essay explosion hereabouts, I was also reading War and Peace.
War and Peace is, among many other things, the way Tolstoy chose to demonstrate some of his theories about the science of history, and his understanding of fate, destiny, free will, self-awareness, and related topics.
Every once in a while he drops in a few words about some of the topics that were the major concerns of the essays and letters I’ve reproduced here.
Tolstoy wrote War and Peace in the 1860s, and these other works of exhortation and political philosophy mostly in the late 1890s and early 1900s, so keep that in mind.
(Also, I was reading the Richard Pevear / Larissa Volokhonsky translation, but the links I’m giving on this page are to the now-public domain Aylmer & Louise Maude translation, so you may get confused if you search for my quotes there.)
Pierre’s Search for Purpose
Pierre Bezúkhov is one of the major characters in War and Peace.
He starts off as a very aimless young man, without any confident motives of his own or any ambition for his own destiny, just allowing himself to be tugged this way and that by other peoples’ ideas of propriety.
Superficially, at least, this turns out okay for him, as he stumbles into an enormous inheritance and marriage to a capable, ambitious bride.
A bit too ambitious, as, against (what’s left of) his inclinations, he enters into a duel over her questionable honor and nearly kills a man.
This shocks him into something closer to wakefulness, and he begins to think he ought to pay a little more attention to how he is going to live his life, in a pretty good summary of your garden variety Existential Crisis:
Just then, Pierre meets a traveller on the road who knows about him and has heard about the recent turmoil in his life, and who offers to give a word of advice.
The traveller is a freemason, and he scolds Pierre, saying that it’s no wonder he’s come to hate his life, since he’s been mistreating it so badly: “If you hate it, change it, purify yourself, and insofar as you purify yourself, you will learn wisdom.”
Pierre answers, “I wish with all my soul to be what you want me to be; but I’ve never found help from anybody… However, I am to blame for it all in the first place.
Help me, teach me, and maybe I’ll…” This is just what the freemason has been waiting to hear, and he gives Pierre his introduction to freemasonry.
Pierre, suddenly infused with zeal, plunges into the masonic world, taking very seriously its goal “to set to rights the whole human race, offering it, through our members, an example of piety and virtue, and thereby trying with all our might to oppose the evil that reigns in the world,” and not giving much thought to the esoteric trappings and weird rituals that decorate the package.
“Forgive your enemy, take no revenge upon him, unless it be by doing him good.
Having thus fulfilled the higher law, you will recover the traces of the ancient majesty you have lost”…
Parenthetically, he notes later on that his Masonic oath prevents him from joining the military since it “preached eternal peace and the abolition of war.”
“…Masonry is not a religious, not a ritual sect, as I also thought, Masonry is the best, the only expression of the best, the eternal sides of mankind.”
And he began to explain Masonry to Prince Andrei as he understood it.
He said that Masonry is the teaching of Christianity, freed of state and religious fetters; the teaching of equality, brotherhood, and love.
Pierre climbs in the ranks but at the same time begins to grow disillusioned.
Freemasonry as it actually exists doesn’t much resemble the ideal he’s fallen in love with.
Pierre goes abroad to see how things are elsewhere, and comes back fired up again and way too zealous for other members of the order.
He tells the freemasons of Petersburg:
“…[I]t is not enough to observe our mysteries in the quiet of the lodge — we must act… In order to spread the pure truth and bring about the triumph of virtue… we must purify people of prejudice, spread rules that correspond to the spirit of the time, take upon ourselves the upbringing of the young, unite the most intelligent people with indissoluble bonds, boldly and yet reasonably overcome superstition, unbelief, and stupidity, and form those devoted to us into people bound together by a single goal and having power and strength.
“For the achievement of this goal, we must assure a preponderance of virtue over vice, we must try to make it so that the honest man already attains in this world the eternal reward for his virtues.
But we are very much hindered in these great intentions by present-day political institutions.
What are we to do in such a state of affairs?
Are we to favor revolutions, overthrow everything, drive out force by force?
… No, we are very far from that.
Every violent reform is blameworthy, because it will not set evil to rights in the least, as long as people remain as they are, and because wisdom has no need of violence.
“The entire project of the order should be based on forming people who are firm, virtuous, and bound together by unity of conviction, a conviction that consists of persecuting vice and stupidity everywhere and with all their might, and of patronizing talent and virtue: drawing worthy people up from the dust and uniting them to our brotherhood.
Only then will our order have power — to bind imperceptibly the hands of those who condone disorder and rule them in such a way that they do not notice it.
In short, a universal, sovereign form of government should be established, which will be spread over the whole world, without destroying civil bonds, and under which all other governments may continue in their usual way and do all except that which hinders the great goal of our order, that is, the achievement of the triumph of virtue over vice.
This was the goal of Christianity itself.
It taught people to be wise and kind and to follow, for their own benefit, the example and precepts of the best and wisest men.…”
His proposal is not well-received, and, chastened, he gives it up and rededicates himself to personal renewal, but then backslides into his old devil-may-care ways, baffled at the meaninglessness of it all:
Pierre goes back to drifting, possessed briefly by some weird numerological fetish that gives him some vague but profound destiny that takes the place of his masonic renewal, and he stays that way until his experiences as a prisoner of war act as a sort of shock treatment to bring him back to reality.
By the end of the book he’s come back again to his plan of forming a secret society with the goal of bringing about a political reformation of some sort.
Now, mind you, I’m not describing the plot of the book here but just one of its threads.
But I’m struck by the similarities between Pierre’s impressions of Freemasonry and what Tolstoy had to say about Christianity in The Kingdom of God Is Within You.
At times I think Tolstoy was using Freemasonry as a stand-in for Christianity so that he could mock its pretensions and explore its ideals without having to fend off the censors.
Other times, I think he was inventing a sort of idealized Freemasonry as a model for a Christian fellowship of the kind he thinks Christians ought to invent as an alternative to the established Church.
Prince Andréi on the Laws of War
During the preparations for the Battle of Borodino, Prince Andréi gets hot under the collar and makes this little speech (he’s addressing Pierre, incidentally):
“Take no prisoners… That alone would change the whole war and make it less cruel.
As it is, we’ve been playing at war — that’s the nasty thing, we act magnanimously and all that.
It’s like the magnanimity and sentimentality of the lady who swoons when she sees a calf slaughtered; she’s so kind, she can’t bear the sight of blood, but she eats the same calf in sauce with great appetite.
We’re told about the rules of war, about chivalry, about parleying, sparing the unfortunate, and so on.
It’s all nonsense.
I saw chivalry and parleying in 1805: they cheated us, we cheated them.
They loot other people’s houses, spread false banknotes, and worst of all — kill my children and my father, and then talk about the rules of war and magnanimity towards the enemy.
Take no prisoners, but kill and go to your death!…
“If there was none of this magnanimity in war, we’d go to it only when it was worth going to certain death, as now.
Then there would be no war because Pavel Ivanych offended Mikhail Ivanych.
But if there’s war like now, then it’s war.
And then the intensity of the troops would not be like now.
Then all these Westphalians and Hessians led by Napoleon wouldn’t follow him to Russia, and we wouldn’t go to fight in Austria and Prussia, not knowing why ourselves.
War isn’t courtesy, it’s the vilest thing in the world, and we must understand that and not play at war.
We must take this terrible necessity sternly and seriously.
That’s the whole point: to cast off the lie, and if it’s war it’s war, and not a game.
As it is, war is the favorite pastime of idle and light-minded people… The military estate is the most honored.
But what is war, what is needed for success in military affairs, what are the morals of military society?
The aim of war is killing, the instruments of war are espionage, treason and the encouragement of it, the ruin of the inhabitants, robbing them or stealing to supply the army; deception and lying are called military stratagems; the morals of the military estate are absence of freedom, that is, discipline, idleness, ignorance, cruelty, depravity, and drunkenness.
And in spite of that, it is the highest estate, respected by all.
All kings except the Chinese wear military uniforms, and the one who has killed the most people gets the greatest reward… They come together, like tomorrow, to kill each other, they slaughter and maim tens of thousands of men, and then they say prayers of thanksgiving for having slaughtered so many people (inflating the numbers), and proclaim victory, supposing that the more people slaughtered, the greater the merit.
How does God look down and listen to them!”
Rastopchin’s Justification
Feodor Rastopchin, the governor of Moscow at the time of Napoleon’s invasion, is, in War and Peace, a self-important buffoon who keeps issuing increasingly more ridiculous propaganda and searching eagerly for people to blame for the results of his complete lack of useful activity.
At one point, with Napoleon about to enter the city, a crowd of Muscovites has appeared outside of his office, expecting (thanks to his propaganda) that he will lead them in the defense of the city, when he has never had any intention to do that.
He thinks they’re just an angry mob that’s been stirred up by other people, and tries to think of some way of distracting them so they won’t turn on him.
He decides to turn loose to the mob a prisoner, a fellow named Vereshchagin, who had been arrested on suspicion of circulating French propaganda, and he tells the crowd that Vereshchagin “is the villain who has brought ruin to Moscow,” which even if the charge against him were rock solid, would be an absurd exaggeration.
“Deal summarily with him!
I hand him over to you!
… Beat him!
Let the traitor perish and not disgrace the Russian name!
… Cut him down!
I order it!”
The crowd does as Rastopchin orders, and then, as Rastopchin ducks out the back to get away, he begins to rationalize what he’s done, first blaming the crowd:
Rocking slightly on the soft springs of the caleche and no longer hearing the dreadful sounds of the crowd, Rastopchin calmed down physically and, as always happens, simultaneously with physical calm, his mind also devised causes for him to be morally calm.
The thought that calmed Rastopchin was not new.
As long as the world has existed and people have been killing each other, no one man has ever committed a crime upon his own kind without calming himself with this same thought.
This thought was le bien publique, the supposed good of other people.
For a man not gripped by passion, that good is never known; but the man who commits the crime always knows for certain what that good consists in.
And Rastopchin now knew it.
On the Power of Orders
Many times, Tolstoy’s descriptions of battles emphasize how little resemblance the orders and intentions of commanders have to what actually takes place on the battlefield.
He wrestles with two seemingly conflicting ideas:
How orders from superiors influence people to do (sometimes horrible) things they otherwise would not do.
How historical powers we can only barely perceive in retrospect and are almost entirely unconscious of at the time influence masses of people to engage in seemingly deliberate (if senseless) activities regardless of what their nominal commanders intend.
[T]he course of world events is predestined from on high, depends on the coincidence of all the wills of the people participating in those events, and [] Napoleon’s influence on the course of those events is only external and fictitious.
In the battle of Borodino, Napoleon did not shoot at anyone and did not kill anyone.
That was all done by the soldiers.
Which means it was not he who killed people.
The soldiers of the French army went to kill Russian soldiers in the battle of Borodino not as the result of Napoleon’s orders but by their own will.
The whole army — the French, the Italians, the Germans, the Poles, hungry, ragged, and exhausted by the campaign — on seeing the army that blocked their way to Moscow, felt that “le vin est tiré et qu’il faut le boire [the wine is drawn and it must be drunk].”
If Napoleon had now forbidden them to fight the Russians, they would have killed him and gone to fight the Russians, because it was necessary for them.
…it was not as the result of Napoleon’s order that they killed their own kind.
And it was not Napoleon who ordained the course of the battle, because nothing of his disposition was carried out and during the battle he did not know what was happening in front of him.
Which meant also that the way these people were killing each other occurred not by the will of Napoleon, but went on independently of him, by the will of the hundreds of thousands of people who took part in the common action.
To Napoleon it only seemed that the whole thing happened by his will.…
(Later, Tolstoy quotes from Napoleon’s memoirs to demonstrate further how far Napoleon’s idea of what he was doing deviated from what was actually taking place in his wars.)
But in another scene, Tolstoy shows soldiers “just following orders” in a way that leaves a different impression.
Pierre, captured in Moscow after the French have invaded and much of the city has gone up in smoke, is accused by the French of having been among those who set the fires (Tolstoy maintains that the fires were probably unintentional and inevitable).
He has a hard time following the proceedings against him, such as they are, but thinks he may have been condemned to death:
It was the order of things, the turn of circumstances.
Some order of things was killing him — Pierre — depriving him of life, of everything, annihilating him.
It is not until Pierre is led out to the execution ground along with several other prisoners (some of whom are executed) and then marched back again that he learns that he was not among the condemned.
Here are some excerpts from that scene:
The criminals were placed in a certain order, which was on the list (Pierre was sixth), and led to the post.
Several drums suddenly began to beat on both sides, and Pierre felt that with this sound it was as if part of his soul was torn away.
He lost the ability to think and reason.
He could only see and hear.…
Pierre heard the French debate about how to shoot them — by ones or by twos.
“By twos,” the senior officer said coldly and calmly.
There was movement in the ranks of soldiers, and it was noticeable that they were all hurrying, and hurrying not as people hurry to do something everyone understands, but as they hurry in order to finish a necessary but unpleasant and incomprehensible business.
Twelve riflemen with muskets left the ranks with measured, firm strides and stopped eight paces from the post.
Pierre turned away so as not to see what was going to happen.
Suddenly there was a crackle and boom that to Pierre seemed louder than the most terrible peals of thunder, and he turned to look.
There was smoke, and the French, with pale faces and trembling hands, were doing something by the pit.
Another two were led up…
Pierre did not want to look and again turned away; but again it was as if a terrible explosion struck his hearing, and along with these noises he saw smoke, someone’s blood, and the pale, frightened faces of the Frenchmen, who again were doing something by the post, pushing each other with trembling hands.
Pierre, breathing hard, looked around as if asking, “What does it mean?”
The same question was in all the gazes that met Pierre’s gaze.
On all the Russian faces, on the faces of the French soldiers and officers, on all without exception, he read the same fear, horror, and struggle that were in his heart.
“But who, finally, is doing this?
They’re all suffering just as I am.
Who is it?
Who?” flashed for a second in Pierre’s soul.
[The fifth man is shot] Pierre ran to the post.
No one held him back.
Frightened, pale people were doing something around the [victim].
The lower jaw of one old, mustached Frenchman was trembling as he untied the ropes.
The body sank down.
The soldiers carried it clumsily and hastily behind the post and began to push it down into the pit.
They all obviously knew without question that they were criminals, who had to quickly conceal the traces of their crime.
…One of the soldiers angrily, spitefully, and morbidly shouted at Pierre to get back.
But Pierre did not understand him and stood by the post, and nobody drove him away.
When the pit was filled, a command was heard…
Pierre now looked with senseless eyes at these riflemen who ran out from the circle in pairs.
All except one joined their companies.
A young soldier with a deathly pale face, his shako pushed back, his musket lowered, went on standing across from the pit in the place from which he had fired.
He was reeling like a drunk man, taking a few steps forward, then back, to support his falling body.
An old sergent ran out from the ranks and, seizing the young soldier’s arm, pulled him into the company.…
“Ça leur apprendra à incendier [That’ll teach them to set fires],” someone among the Frenchmen said.
Pierre glanced around at the speaker and saw that it was a soldier who wanted to comfort himself at least somehow for what had been done, but could not.
Without finishing what he was saying, he waved his arm and walked away.
Later, when Pierre is among a group of prisoners due to be marched along in the French retreat from Moscow (with the French under orders to execute any prisoners who are unable to keep up), he notices the change in the demeanor of the French, who between the time of the executions and the beginning of the retreat had warmed up to him and to the other captives:
“Caporal, que fera-t-on du malade [Corporal, what will be done with the sick man]?”
Pierre began; but as he was saying it, he wondered whether this was the corporal he knew or some other unknown man: so unlike himself the corporal was at that moment.
Besides that, just as Pierre was saying it, there came the noise of drums on both sides.
The corporal frowned at Pierre’s words and, uttering a senseless oath, slammed the door.
The shed became semi-dark; on both sides there was a sharp noise of drums that drowned out the sick man’s moans.
“Here it is!
… Here it is again!”
Pierre said to himself, and an involuntary chill ran down his spine.
In the corporal’s altered face, in the sound of his voice, in the arousing and engulfing noise of the drums, Pierre recognized that mysterious, indifferent force that made people kill their own kind against their will, that force the effect of which he had seen during the execution.
To fear, to try to escape that force, to turn with requests or admonitions to the people who served as its tools, was useless.
Pierre knew that now.…
(Although it is a little unclear, later on it turns out that the prisoner count is one short.
“One Russian soldier, pretending to have a stomach ache,” so the story goes, “had escaped.”
So maybe the corporal exercised some negligence of duty in the service of his qualms, though Pierre noticed “the captain reprimand the sergeant for the Russian prisoner’s escape and threaten to court-martial him” and again “Pierre felt that the fatal force which had crushed him during the execution… now once again took possession of his existence.”)
Leaders as Justifiers
Tolstoy adds a long epilogue to War and Peace in which he gives his theories about the shortcomings of the science of history, gives us a little bit of “then what happened” about some of the characters and loose ends in his book, and tries to tease out what is the force that propels history.
In the course of this, he tries to disabuse us of the idea that Important People — military and political leaders, religious figures, or influential intellectuals — are the movers of the world.
Any herd, school, or flock will inevitably have some animal most in front of its current direction of motion, but this does not necessarily make that person the leader so much as a peculiarly-placed follower of the same force the rest of the herd is following (or so Tolstoy wants us to consider).
When some event takes place, people express their opinions and wishes about the event, and since the event results from the joint action of many people, one of the opinions or wishes expressed is bound to be fulfilled, if only approximately.
When one of the opinions expressed is fulfilled, that opinion is connected with the event as the order preceding it.
Men are dragging a log.
Each of them expresses an opinion about how and where to drag it.
The men drag the log out, and it is discovered that it was done the way one of them had said.
He gave the order.
Here are order and power in their primitive form.
The one who mainly worked with his hands was less able to think over what he was doing, to consider what might come of the common activity, and to give orders.
The one who mainly gave orders, as a consequence of his verbal activity, was obviously less able to act with his hands.
The greater the assembly of people aiming their activity at a single goal, the more sharply set off is the category of people who take a less direct part in the common activity, the more their activity is aimed at giving orders.
A man, when he acts alone, always bears within himself a certain series of considerations which guided, as it seems to him, his past activity, serve him as a justification for his present activity, and guide him in his suppositions about his future acts.
Assemblies of people do exactly the same thing, leaving it to those who do not participate in the action to think up considerations, justifications, and suppositions about their joint activity.
For reasons known or unknown to us, the French begin to drown and slaughter each other.
And the event is correspondingly accompanied by its justification in the expressed wills of the people about the necessity of it for the welfare of France, for liberty, for equality.
People stop slaughtering each other, and this event is accompanied by its justification in the necessity to unify power, to repulse Europe, and so on.
People go from west to east, killing their own kind, and this event is accompanied by words about the glory of France, the baseness of England, and so on.
History shows us that these justifications of the event have no general sense and contradict themselves, like killing a man in recognition of his rights, and killing millions in Russia to humiliate England.
But in a contemporary sense, these justifications have a necessary significance.
These justifications take away the moral responsibility of the people who produce events.
These temporary goals are similar to the brushes that go in front of a train to clear the way on the rails: they clear the way of people’s moral responsibility.
Without these justifications, there could be no explaining the simplest question, which presents itself with the examination of every event: how is it that millions of people commit joint crimes, wars, killings, and so on?
In a later commentary on War and Peace, Tolstoy went even further, saying that “the so-called power over other people… is only the greatest dependence on them.”
Conclusion
You could read all of this and get a really bad impression of what War and Peace is all about.
These philosophical and polemical sections of the book are exceptional and don’t give a real flavor for the book as a whole, which has a lot more going on.
But I flagged them while I was reading because I thought they might shed some light on the formation of Tolstoy’s views on the subjects of pacifism, responsibility, and nonviolent resistance, and might be useful to those of you (you don’t have to raise your hands) who aren’t planning to read the whole thing.
I regretted that Charles Purvis’s petition for a writ of certiorari in his
Supreme Court appeal was not available
on-line. It’s a good example of someone trying to get the
U.S. government to
take seriously what its prosecutor, Supreme Court Justice Robert Jackson, said
at the Nuremberg trial of German “war criminals”:
And let me make clear that while this law is first applied against German
aggressors, the law includes, and if it is to serve a useful purpose it must
condemn aggression by any other nations, including those which sit here now
in judgment. We are able to do away with domestic tyranny and violence and
aggression by those in power against the rights of their own people only when
we make all men answerable to the law. This trial represents mankind’s
desperate effort to apply the discipline of the law to statesmen who have
used their powers of state to attack the foundations of the world’s peace and
to commit aggressions against the rights of their neighbors.
Fat chance, but there’s something to be said for making the effort. Anyway,
here, on-line for the first time as far as I can tell, are excerpts from the
Purvis writ, as presented by his attorney William Durland (and as found in
Durland’s book People Pay
for Peace). Afterwards I’ll share some of my thoughts:
The decision below as it applies to Petitioner, a Quaker, and war tax
refuser, causes him to become a party or an accessory to a criminal act in
violation of international law, the United States Constitution, the criminal
statutes of the United States and his conscience.
To compel the petitioner to pay federal income tax deficiencies and additions
as war taxes makes him a party of an accessory to a criminal act in violation
of international law and Article Ⅵ of the United States Constitution.
International Law is Applicable to Cases Arising in
U.S. Courts
There can be no doubt that international law is relevant and applicable to
cases arising in United States Courts. Article Ⅵ , paragraph 2 of the United
States Constitution provides that:
All treaties made, or which shall be made, under the authority of the United
States, shall be the supreme law of the land, and the judges of every state
shall be bound thereby, anything in the Constitution or law of any state to
the contrary notwithstanding.
When a question arises concerning whether international law is relevant to a
domestic case, it is the duty of the domestic court to determine (1) whether
principles of international law are implicated in the case; if so (2) which
principles of international law are applicable and (3) whether application of
these principles to the case at bar overrides inferior municipal law thus
justifying otherwise allegedly illegal conduct.
In the
Paquete Habana, 175
U.S. 677, 700
(), the Supreme Court declared that:
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often
as questions of right depending upon it are duly presented for their
determination.
Accord,Hilton v. Guyot.
See generally I Whitman International Law Section 11
(). International law is applicable to
domestic courts. The question is which aspects of international law become
“the supreme law” of the land. Treaties made by the President, “and with the
advice and consent of the Senate” are obviously included by express
provisions of Article Ⅱ, Section 2 of the United States Constitution. The
term “treaty”, though not defined in the Constitution, has generally been
determined to include “irrespective of their nomenclatures, such
international agreements as conventions, pacts, protocols and covenants.”
Introduction to
U.S. Treaties and
Other International Agreements, Cumulative Index, ⅹ
() (Hereafter,
U.S.T.).
What has been termed “customary international law” is also binding on
domestic courts.
Such customary International Law as is universally recognized or has at any
rate received the assent of the United States, and further all international
conventions ratified by the United States, are binding upon American courts,
even if in conflict with previous American statutory law…
Ⅱ Oppenheim,
International Law. 101
(6th
ed.
). “Offenses against the Law of Nations”
have been sustained in federal courts even if there were no statutes defining
the offense under Article Ⅰ, Section 8, Clause 10 of the
U.S. Constitution.
Therefore a substantial body of treaties, international agreements, and
offenses against the Law of Nations or customary international law are
binding on American courts. See Introduction to
U.S.T. Cumulative Index, supra, at ⅺ.
International Law Prohibits Aggressive Policies of “Defense”
There are many bases for determining that American nuclear weapons are in
violation of international law. (Petitioner will present his case against
nuclear planning here rather than the Vietnam War crimes because (1) the
brevity of the writ requires it; (2) the latter has terminated and
(3) the former continues to be a basis for the present refusal to pay war
taxes for past years. However, much of this argument also applies to the
former). Perhaps the most fundamental tenet of all international norms is
that a sovereign refrain from use of or threat of force in its relations with
other countries. This policy has been consistently expressed in various forms
as early as .
In the
Convention for the Pacific Settlement of International
Disputes, , 32
Stat.
1779, 1780, T.S.
392 the parties (including the United States) expressed “a strong desire to
concert for the maintenance of the general peace;” to extend “the empire of
law,” and to strengthen “the appreciation of international justice…”
Accord, Convention for the Pacific Settlement of International
Disputes, , 37
Stat.
2199, 2201, T.S.
536.
Similarly, Article Ⅰ of the Pan American Anti-war Treaty of Non-aggression and Conciliation,
, 49
Stat.
3363, 3375, T.S.
906, states that the parties “solemnly declare that they condemn wars of
aggression in their mutual relations or in those with other states…”
The Charter
of the United Nations, , 59
Stat.
1033, T.S. 993
(hereinafter
U.N.
Charter) is replete with references to the duty to use peaceful means
in international relations. The Preamble expresses a determination “to save
succeeding generations from the scourge of war…”; “to ensure, by the
acceptance of principles and the institution of methods, that armed force
shall not be used, save in the common interest…”
U.N.
Charter, 59
Stat.
1033, 1035. Chapter Ⅰ of the
U.N.
Charter sets forth the purposes of the United Nations. Because these
provisions provide a guiding light in the interpretation of international
law, it is important to develop a firm grasp of these basic principles.
Article Ⅰ provides that:
The Purposes of the United Nations are:
To maintain international peace and security, and to that end: to
take effective collective measures for the prevention and removal of
threats to the peace, and for the suppression of acts of aggression
or other breaches of the peace, and to bring about by peaceful means,
and in conformity with the principles of justice and international law,
adjustment or settlement of international disputes or situations
which might lead to a breach of the peace;
To develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take
other appropriate measures to strengthen universal peace;
[E]ncouraging respect for human rights and for fundamental freedoms for
all…
U.N.
Charter at 1037 (emphasis added).
In Article 2, the members agree to “fulfill in good faith the obligations
assumed by them” in the Charter; to “settle their international disputes by
peaceful means in such a manner that international peace and security, and
justice, are not endangered” to “refrain in their international relations
from the threat or use of force…” or to act “in any other manner inconsistent
with the purposes of the United Nations.”
U.N.
Charter at 1037.
International Law Prohibits Specific Planning for and Acts of
Aggression
The Hague
Convention Respecting the Laws and Customs of War on Land,
, 36
Stat.
2277, T.S. 403
(hereinafter, Hague Conventions), was “inspired by the desire to
diminish the evils of war…” 36
Stat.
at 2279. The Convention declares that where no specific international
regulation addresses a specific course of conduct, that the parties follow
“the principles of the law of nations, as they result from the usages
established among civilized peoples, from the laws of humanity, and the
dictates of the public conscience.” 36
Stat.
at 2280. Article 22 of the Convention provides that “[t]he right of
belligerents to adopt means of injuring the enemy are not unlimited.” 36
Stat.
at 2301. Most importantly, Article 23 provides:
In addition… it is especially forbidden:
To employ poison or poisoned weapons;
To kill or wound treacherously…
To employ arms, projectiles, or material calculated to cause unnecessary
suffering…
36
Stat.
at 2301–02.
Article 24 prohibits the bombardment of villages, towns, or cities which are
undefended. 36
Stat.
at 2302, while Article 27 declares that in sieges or bombardments all
necessary steps must be taken to spare buildings dedicated to religion, the
arts, science, or caring for the sick and wounded. 36
Stat.
at 2303.
The Charter of
the International Military Tribunal
, 59
Stat.
1544, E.A.S. 472 (“London Agreement
enunciating the Nuremberg Principles”) (Hereinafter, Nuremberg
Charter) outlined violations of international law for which even
individual citizens of belligerent nations could be held responsible. Article
6 provides that:
The following acts, or any of them are crimes… for which there shall be
individual responsibility:
Crimes Against Peace: namely, planning, preparation… of a war of
aggression or a war in violation of international treaties, agreements
or assurances, or participation in a common plan… for the
accomplishment of any of the foregoing.
War Crimes: namely, violations of the laws and customs of war.
Such violations shall include but not be limited to, murder,
ill-treatment… of civilian populations… plunder of public or private
property, wanton destruction of cities, towns or villages…
Crimes Against Humanity: namely, murder, extermination… and
other inhuman acts committed against any civilian population before or
during the war or persecutions on political, racial or religious
grounds in execution of or in connection with any crimes… whether or
not in violation of the domestic law of the country where
perpetrated.
Article 7 went on to provide that the “fact that the Defendant acted pursuant
to order of his [sic.] Government
or of a superior shall not free him from responsibility.”
Charter at 1548.
In the United States delegation to the
United Nations introduced a Resolution before the General Assembly affirming
“the Principles of International Law recognized by the Charter of the
Nuremberg Tribunal.”
G.A.
Res. 95(1),
U.N.
Doc.
A/64/Add. 1, at 188
(). The Resolution was unanimously adopted
by the General Assembly on . In the Nuremberg Principles
were restated by the International Law Commission. Finally, the United
Nations Security Council, by Resolution, condemned acts of “reprisals as
incompatible with the Purposes and Principles of the United Nations.”
G.A.
Res. 188, Session ⅩⅨ,
4/1/1964.
U.S. Policies
and Development of Nuclear Weapons are Inconsistent with International
Law
There can be no doubt that the actual aggressive use of atomic weapons
results in almost total destruction of everything within several miles of the
site of the explosion. See United States Department of Defense, The
Effects of Nuclear Weapons (). The
residual effects caused by radiation and radio-active fall-out create
long-term illness and death in a matter analogous to poisoning. See United
States Atomic Energy Commission, The Effects of Nuclear Weapons
(),
p. 473.
The indiscriminate and “wanton destruction of cities” which results from the
use of nuclear weapons is prima facie proof of war crimes,
as defined by Principle VI
of the Nuremberg Charter, and of crimes against humanity, as
defined by Principle VI(c)
of the Charter. Likewise, the poisonous effects of nuclear
radiation and fall-out are prima facie violations of the
United States’ obligations under Article 23(a) of the Hague
Conventions prohibiting the use of “poison or poisonous arms.”
Additionally, Article 23(a) of the Hague Conventions of
and ,
which prohibits the use of “arms, projectiles, or material of a nature of
cause superfluous injury”, and the
Declaration of St. Petersburg
of , which declares that “the only
legitimate object… [of] war is to weaken the military forces of the enemy”,
indicate a customary rule of international law prohibiting weapons of
indiscriminate destruction such as nuclear weapons.
Moreover, the aggressive use of atomic weapons would directly contradict the
express purposes of using best efforts to avoid a nuclear war and negotiate
an end to the nuclear arms race. See discussion,
infra.. And since the radiation-related after effects
of nuclear explosions cannot be controlled, the harm to persons and property
in neutral countries would constitute an act of aggression against third
states. G.A.
Res. 3314, Session ⅩⅩⅨ,
12/14/74.
The real question is whether current policies and weapons are in violation of
international law. To answer this question one must look to the history and
facts of nuclear weapons development.
On the basis that the “planning” or “preparation” for wars of aggression
violates Article 6(a) of the Nuremberg Charter, that “use of
threat of force” is in violation of several treaties including the
U.N.
Charter; that the
U.N.
Charter condemns “situations which might lead to a breach of the
peace,”
U.N.
Charter Art. 1, 59
Stat.
at 1037, and imposes a duty upon members “to practice tolerance and live
together in peace,”
U.N.
Charter, Preamble, at 1035; that the United States has declared an
intention “[t]o prevent the use of atomic energy for destructive purposes”
and to eliminate nuclear weapons from national arsenals,
e.g. Declaration on Atomic
Energy, 60
Stat.
at 1480. Nuclear Non-proliferation Treaty, 21
U.S.T. at 484–85; and that the United
States has promised to work for international peace and security “with the
least diversion for armaments of the world’s human and economic resources” 21
U.S.T. at 486;
U.N.
Charter Art. 26, 59
Stat.
at 1041, the possession of nuclear weapons for future “first strike” use is
violative of international law. The “official” nuclear policy of this country
is one of deterrence or second-strike capability. This concept is aptly
explained by Robert Aldridge who for sixteen years worked in Lockheed
Corporation’s engineering department, designing every submarine-launched
ballistic missile bought by the Navy. Aldridge explains:
Deterrence is the strategic policy under which most of us believe the
Pentagon is still operating. It is presented as a defensive measure, of
sorts, because it is based on a second-strike response — massive and
unacceptable retaliation — which theoretically deters the Soviet Union from
attacking us.
Aldridge, The Counterforce Syndrome () (hereinafter Counterforce)
Aldridge goes on to note that to be an effective deterrent, United States
retaliatory forces would have to survive the worst conceivable attack and
still wreck havoc in the Soviet Union. To this end, land-based ballistic
missiles are stored in underground silos. The fact is that since the late
1960s both the Soviet Union and the United States have possessed this
deterrent capability. Counterforce at 2. To maintain this
“balance” super-powers agreed in S.A.L.T. Ⅰ
(Strategic Arms Limitation Treaty) to refrain from developing elaborate
anti-ballistic missiles (ABMs).
There came a time, however, when actual
U.S. policy
shifted from deterrence to what Aldridge terms “counterforce”. In9
, Aldridge resigned after helping design
three generations of Polaris missiles, the multiple individually-targeted
reentry vehicles (MIRVs) for Poseidon, and
the beginnings of the Trident missile. The cause of Aldridge’s resignation
was his sense of a shift in nuclear policies:
At the onset of the Trident program, I discovered the Pentagon’s interest in
acquiring a precise “counterforce” weapon capable of destroying “hardened”
military emplacements such as missile silos. This was a profound shift from
a policy of retaliating only when fired upon, because it does not make sense
to attack empty silos (which is all that would be left following an enemy
first-strike attack on the United States).
Counterforce at ⅶ.
The S.A.L.T. Ⅰ agreement
froze the number of strategic arms, but did not freeze quality improvements — the area of primary
U.S. emphasis.
Counterforce at 60. The sheer explosive power of these weapons
is unimaginable. According to Senator George McGovern, the
U.S. presently
possesses 8,500 warheads, a combined explosive power of over three billion
tons of TNT, which calculates to about
1,500 pounds of explosive for every man, woman and child on the planet.
McGovern, “End of the World”, Playboy 124, 126
() (hereinafter,
McGovern). But the magnitude of explosive is not as important as
the accuracy of the explosion. Moreover,
S.A.L.T. Ⅰ
did not limit the numbers of strategic warheads (as opposed to strategic
missiles) and thus since
S.A.L.T. Ⅰ
the U.S. has
increased its nuclear warhead stockpile from 4,600 to 9,000 while the Soviet
Union has increased theirs from 2,000 to 4,000. “The
SALT Trap”. The Progressive, p. 9, ().
Additionally, S.A.L.T. Ⅰ placed no
restrictions on production of two weapon systems which have critically
affected the arms race: MIRVs and the cruise missile.
MIRVing missiles means two to fourteen additional independently
targeted warheads to a single missile, giving it the kill potential of many
missiles. The cruise missile is a mobile weapon which flies at altitudes
below the detective capabilities of radar and which can strike within thirty
feet of a target over 2,000 miles distant, according to the
Progressive Magazine.
The dangers in such policies are legion. For one thing, these developments
make it virtually impossible to verify compliance with an arms limitation
agreement. Although satellites can count missiles, submarines or airplanes,
they cannot determine how many warheads are on a given missile.
McGovern at 196.
The United States has retrofitted accuracy improvement systems and
MIRVs
to both land and submarine launched missiles. In
the
U.S. retrofitted
550 Minutemen Ⅲ missiles with the NS-20
guidance system which doubled the accuracy of the 1650
MIRV warheads.
This gave each warhead an even chance of landing within 600 feet of any Soviet
silo with a blast nine times greater than the Hiroshima bomb.
McGovern at 196. Each of the 1,650 Minuteman warheads now has
over an 80% chance of destroying any Soviet silo at which it is aimed.
Other weapons systems currently in development pose an even greater threat of
the risk of outbreak of nuclear war. Lockheed began work in
on a maneuvering re-entry vehicle
(MARV) which permits in-flight alterations
in navigation increasing ever-more the accuracy of the hit. In
, concept studies were initiated for the
Mark 500
MARV
for possible use on Trident missiles.
In the
ABM Treaty was modified to allow only
100 defensive interceptors for each country, thus making nonsense of the
Pentagon rationale that in-flight maneuverability is essential to evade enemy
defense systems.
In the Missile X program was initiated. The
actual implementation of the program began in
. Under this system five to
twenty-five mile trenches will be dug in the Western
U.S. Each trench
will conceal a missile which can be moved back and forth at random, the
assumption being that the Soviets would exhaust their
ICBMs
trying to “find” the missile. The problem is that the Pentagon scenario omits
to consider the fact “that a 20-megaton burst, such as that produced by a
Soviet SS-9 ICBM,
would leave a 75-foot high layer of dirt on the lid if it struck as far as
half a mile away. Missile-X would probably be entombed unless it were planned
as a first-strike weapon.” Counterforce at 27. Moreover, the
trench system once again creates insurmountable verification problems since
“there would be no way the Soviets would be certain that there was only one
missile in any given trench.” Counterforce at 27.
The Trident submarine launched missile system is a floating vessel of
destruction. The 560 foot long Trident carries twenty-four submarine launched
ballistic missiles (SLCMs) each with a
range of 4,000 nautical miles and each equipped with eight 100-kiloton
warheads. The proposed modifications of the Trident submarine, or Trident-2,
carries twenty-four Trident-2 missiles, each with a range of 6,000 nautical
miles, and each capable of “delivering seventeen super-accurate
MARV
warheads to within as few feet as many targets. Counterforce at
25, 26. As Aldridge describes it:
One Trident submarine will be able to destroy 408 cities or military
targets with a blast five times that which was unleashed over Hiroshima.
A fleet of thirty Trident submarines would be able to deliver an
unbelievable 12,240 nuclear warheads against an enemy’s territory — or 30
times the number originally thought sufficient for strategic deterrence.
Clearly, if Trident attains the accuracies the Navy seeks, it will
constitute the ultimate first-strike weapon. Counterstrike at
26.
Once each nation possesses weapons capable of a first-strike, then the risks
of a nuclear war escalate in a geometric progression. The dilemma is that (1)
since each is capable of a first-strike which would presumably cripple the
other’s ability to retaliate, (2) since only 100
ABMs are allowed per side, and (3) since
cruise missiles and other systems can penetrate enemy territory undetected by
radar, then each side will be vulnerable to a crippling first-strike attack
thus tempting each side to devastate the “enemy” before the “enemy”
devastates them. This scenario of mutual nuclear insecurity is only years
ahead. Although the United States is ahead of the Soviets in developing a
first-strike capability, Counterforce at 59, it is only a matter
of time before the Soviets possess an effective first-strike capability.
Perhaps, in anticipation of that day, President Carter announced a
U.S. first nuclear
strike doctrine in his address to the General Assembly of the
U.N. from the
rostrum of the General Assembly on .
…I hereby declare on behalf of the United States that we will not use
nuclear weapons except in self-defense; that is, in circumstances of an
actual nuclear or conventional attack on the United States, our territories
or armed forces, or such an attack on our allies.
New York Times, Transcript of President Carter’s
Address to United Nations General Assembly,
p. A12.
The doctrine is extremely far-reaching:
It announces that the
U.S.
“will” use nuclear weapons (he did not say, for example, “might”
or “reserves the right” or similar words);
Nuclear weapons would be used also in case of attack by “conventional”
weapons;
They would be used also in case of attack by conventional weapons on
U.S. forces
stationed, flying over, or on the high seas, anywhere in the world — for
example, in situations similar to
the Pueblo
incident.
Mr. Carter did not use the language of Article 51 of the
U.N. Charter,
which allows individual or collective self-defense only “if an armed
attack occurs”; the formulation “in circumstances of an
actual attack” is not used in any pertinent international instrument.
Implicit in the phrase is that the
U.S. might use
nuclear weapons also if no armed attack “has occurred”, so that it could
conceivably cover also preventive use of nuclear weapons.
Since the doctrine announces first use of nuclear weapons regardless of
the results (perhaps a
U.S. Air Force
plane was shot at, but not hit?) and, in any case, severity, duration,
and character of the “actual attack”, is not discussed, the doctrine
violates the general principle of proportionality.
The doctrine does not explicitly state that the nuclear weapons would be
used exclusively against the attacking state. Is that omission
deliberate? In other words, is it a revival of Secretary of State Dulles’
doctrine of “massive retaliation of our own choosing”, that is, against a
nation which did not attack but which the
U.S. would
unilaterally hold responsible for the attack?
The doctrine does not say that the attack, to which the
U.S. would
reply with nuclear weapons, was illegal (If a
U.S. bomber or
a bomber of any
U.S. ally
would penetrate the territory of another state, the latter would act
legally in shooting it down).
The doctrine does not refer to the obligation to seek peaceful
settlement before taking such enormous steps, which would be in
contravention of Article 33 of the
U.N.
Charter.
This coupled with the authority of the President under the
War Powers Act, who is therein allowed
to engage in hostilities without declaration of war for a period of 60 to
90 days, violates the Hague Convention
No. 3 of
.
The American nuclear firepower outlined above provides ample basis for
concluding that such systems are violations of international law. (This
analysis was formulated by
Prof. John H.E. Fried,
Former Special Legal Assistant,
U.S. War Crimes
Tribunal, Nuremberg). Dr.
Fried, in a recent paper presented to the Ⅺth Congress, International
Association of Democratic Jurists in Malta, concluded that a first nuclear
strike is forbidden by existing international law because nuclear war (1)
has no rational war aim — its aim is destruction, (2) would prevent obedience
to fundamental rules concerning the conduct of hostilities, (3) would prevent
the carrying out of post battle obligations of belligerents, (4) would make
it impossible to respect the rights of neutral states. The danger of
accidental unintended nuclear war is paramount, causing the dictates of
public conscience to prohibit a first nuclear strike before it takes
place. (See also Art. 18, 1,
Geneva Convention for the Protection of Civilians in Time of War
().)
International Law Imposes a Duty Upon Individual Citizens to Disassociate
Themselves from Violations of Such Law
Since the Nuremberg principles have become a part of international law, the
notion of individual responsibility for war crimes has achieved wide
acknowledgment. (See below). Under the Nuremberg Charter, it is
no defense to claim one was merely following orders. Nuremberg
Charter, supra,
Art. 7. Individual
responsibility attaches if “a moral choice was possible”.
Ex Parte Quirin 317
U.S. 1
(1942).
Professor Falk has found that case law developing during the War Crimes
Trials after World War Ⅱ “established that the zone of individual
responsibility for crimes against peace extended well beyond principal
policy-making and state leaders.” Falk, “The Nuremberg Defense in the
Pentagon Papers Case”, Crimes of War (Falk, Kolko and Liften,
eds.,
) 231. See,
e.g. “The Ministries Case,” Ⅻ–ⅩⅣ,
Trials of War Criminals (). In
the Flick Case, which involved prosecutions of German
industrialists, the War Crimes Tribunal stated:
[I]t is urged that individuals holding no public offices and not
representing the state, do not, and should not come within the class of
persons criminally responsible for a breach of international law. It is
asserted that international law is a matter wholly outside the work,
interest, and knowledge of private individuals. The distinction is unsound.
International law, as such, binds every citizen just as does ordinary
municipal law… The application of international law to individuals is no
novelty.
Quoted in Ⅱ The Law of War: A Documentary History 1283 (L.
Friedman ed.
) (hereinafter Friedman).
Furthermore, the Tokyo War Crimes Trial Decision, reprinted in
Friedman at 1029, suggests that anyone with knowledge of
illegal activity and an opportunity to do something about it is a potential
criminal under international law unless the person takes affirmative
measures to prevent the commission of the crimes. (emphasis added).
Under these considerations an individual American citizen is in violation of
international law if he or she consents to cooperate with any government
which produces, possesses or uses nuclear weapons. (Part of the material
included here is from Graber, “The International Law Defense”,
Pacificus Papers,
Vol. 2,
No. 5, Colorado Springs,
Center on Law and Pacifism, ).
The Applicability of International Law to Taxpayers is Proven
The payment of war taxes to the United States for the years
would have
constituted complicity in the commission of crimes against peace, crimes
against humanity, war crimes in Vietnam and in nuclear planning. A moral
choice to refuse to be in complicity with the commission of such crimes was
available to the Petitioner and he exercised that choice and refused to pay a
war tax. On the point of the nature and extent of individual responsibility,
the Nuremberg Judgment states: “The very essence of the charter
is that individuals have international duties which transcend the national
obligations of obedience imposed by the individual state.”
F.R.D.
69, 110 ().
Fundamental fairness requires that the Petitioner be permitted to rely on
any argument arising from his accountability under international law. That
such a policy extends to the Nuremberg Principles is confirmed by the former
Assistant General Counsel for International Affairs of the Department of
Defense, who acknowledged that “from an international criminal law point of
view… the Nuremberg norms are part of our municipal law and may be enforced
by our courts.” Quoted in Falk, A Global Approach to National
Policy, 112 (). However, Petitioner
has not been given an opportunity to present evidence concerning the
questions of fact contained in this Writ before any court.
Individual liability is determined on the basis of knowledge of war crimes
coupled with inaction. See “The Tokyo War Crimes Trial Decision,” Ⅱ The
Law of War: A Documentary History, 1029 (Friedmann
ed.
). It follows, then, that anyone with
knowledge of war crimes and the opportunity to do something about it is
potentially criminally liable unless that person takes steps to prevent
further commission of the crimes. Even if these principles do not impose an
affirmative duty to act, the imposition of criminal liability on persons
having knowledge of war crimes must create a right in persons to act in a
prudent manner in an effort to halt what they reasonably believe to be
international crimes.
In a due process sense, it is enough that the Petitioner reasonably believed
that the domestic law was superseded by international law. Because domestic
law must be construed in conformity with international law whenever such a
construction is possible, Borchard, “The Relation Between International Law
and Municipal Law,” 27 Va.
L.
Rev., 137
(), it violates due process to subject the
Petitioner to possible criminal liability for tax deficiency in the face of
the contradictory claims on his behavior posed by the domestic and
international law. Due process does not permit the imposition of criminal
liability for tax deficiency (which is possible under the Internal Revenue
Code) for an act intended to terminate complicity in war crimes and its
preparation when the act was justified under relevant principles of
international law.
In , at Nuremberg, Germany, the United
States participated in the prosecutions of persons under principles of
international law imposing criminal liability for deference to municipal law
when they knew, or should have known that their government was
committing violations of international law. It violates the most basic
principles of fundamental fairness and due process for the United States,
while continuing to participate in the punishment of persons convicted of
violating the Nuremberg Principles, to refuse to acknowledge the right of
taxpayer to refuse war taxes in violation of municipal law established by the
Nuremberg Military Tribunal [sic].
Arguments Invoked Against the Applicability of International Law are
Invalid
Usual rebuttals to the international law argument are stated as follows:
(1) “International law does not apply to American courts unless it concerns a
treaty not superseded by a statute.”
As presented aforesaid, this is not so and moreover in the instant case
insofar as the Nuremberg Charter is concerned it has been made part of
domestic law by its incorporation in 59
U.S.
Stat. 1544. (2) “The provisions of the Nuremberg Charter are strictly
limited. Crimes Against Peace only apply to ‘major’ war criminals, and War
Crimes and Crimes Against Humanity are limited to wartime.” In respect to
Crimes Against Peace, Petitioner argues that 18
U.S.C. 960
makes any person within the United States criminally liable. In
respect to War Crimes and Crimes Against Humanity, The Report of the
International Law Commission () at
Principle Ⅵ, paragraph 122 states that “The Tribunal did not, however,
exclude the possibility that crimes against humanity might be considered
before a war.” Finally, as to all three classes of Nuremberg crimes, the
limitation placed upon the jurisdiction of the then court by itself were
self-imposed flowing from its discretionary power due to a desire to strictly
construe the charges because of the initial use of the Charter, the
ex post facto charge against its use, giving the benefit of
the doubt to defendants for that reason. The literal words of the Charter do
not make such discretion mandatory upon future judges or interpretors as this
Court.
International law is progressive. See 2 Mueller, International Criminal
Law, () at 263. No such conditions
apply 35 years later and individuals such as business men and women, ordinary
soldiers or members of war organizations would have been of a sufficient
status then and now to be considered an accessory. See Ⅱ Whitman, Digest
of International Law 885–87, . The
last paragraph of Article 6 of the Nuremberg Charter concerns complicity and
states that “…accomplices participating in the formulation… of a common plan
to commit any of the foregoing crimes are responsible for all acts performed
by any persons in execution of such plan.” See also Mueller at
269. (3) The argument is tirelessly repeated that International Law prohibits
only the use and not the possession of nuclear arms. But the
aforesaid chronology of applicable international law provisions vitiates that
myth. “First Strike” planning puts the lie to that rebuttal forever. If the
law must wait on “use” in this type of case there will be no law or people
left to adjudicate. (4) Finally, these arguments are usually rebutted, if all
else fails, on the basis that they are political in nature and
non-justiciable. This rebuttal is spurious on its face for this Petitioner’s
plea is a plea much more than political. It is a plea for humanity and against
the super-powers of the
U.S. and
U.S.S.R., lest we find our planet destroyed for want of “legal standing”.
Thus the involvement of the United States in Vietnam war crimes and the
formulation of current plans for nuclear war violate international and
constitutional law, and will make Petitioner an accessory to both and
criminally liable if he is forced to pay war taxes for said plans and
preparations. Thus Purvis concludes his argument on international law.
Durland noted that Purvis also made an argument that a domestic statute that
said “Whoever within the United States knowingly begins or furnishes the money
for any military enterprise to be carried on from thence against a territory
or dominion of any foreign state or people with whom the United States is at
peace shall be imprisoned,” also applied to his case.
The law of war is so adorable.
I can’t help but shake my head, sigh, and give a bittersweet smile at the
well-intentioned ridiculousness of it all. I almost sympathize with the White
House torture lawyers who looked at international law and found it “obsolete
and quaint.” Apparently the cutting edge international law thinkers a century
ago seriously contemplated a scene in which officers would lead their troops
to battle with something like, “Okay everybody, to the trenches… but don’t
forget that it’s forbidden by law to kill or wound treacherously!”
And after the 20th century played itself out
anyway, we’re apparently still supposed to take the Hague Convention
seriously.
But there is still something satisfying in trying to hold the
U.S. government to
the principles it so pompously crafted as it was collecting scalps after World
War Ⅱ — watching those principles dissolve in a reductio ad
absurdum where the absurd part is expecting Uncle Sam to agree that what’s
good for his own goose is what was good for der Adler.
Durland complains that “The Supreme Court refused to hear
Purvis and probably will continue to refuse to
recognize the law because the court acts solely out of power when confronted
with morality.” While his conclusion may be valid, I think there may be more
to it than this.
Durland’s “writ” is strangely writ. It is hard for me to imagine Durland
expecting the Supreme Court justices to be impressed by his citations of a
Playboy interview with George McGovern or a
Progressive magazine estimate of the size of the
U.S. nuclear
arsenal. Much of the discussion of arms technology and arms control
difficulties seems not to have much to do with the legal argument and would be
more at home in a for-the-choir think tank article. There’s precious little
citation of legal precedents but plenty of quotation of books and essays and
law review articles and appeals to “the most basic principles of fundamental
fairness” and the like.
Perhaps it wasn’t really intended for the audience to which it was ostensibly
delivered, but then why go through such fuss? It seems to me if you’re going
to bother to try to take a legal argument up the court system, you ought to
try to craft it in a form that will be persuasive to judges. As it is, because
Purvis lost his case and was unable to get the courts to take his argument
seriously, the legal legacy of Purvis
v.
Commissioner is as a precedent for the idea that
…the act of paying taxes does not amount to complicity in any war crime
committed by the Government. [The Eleventh Circuit Court of Appeals citing
Purvis in its ruling against war tax resisters
Robert and Linda Randall in ]
Support for military runs counter to pacifist ideals
Military Tax Resistance of Lane County is dedicated to the philosophy and use of nonviolence.
MTRLC is one of many regional nonviolent-activist organizations in the United States comprised of faith-based pacifists who are deeply troubled by our nation’s enormous military budget.
The war-tax resistance movement in the United States includes people of all faiths who object to the use of military force as a method of conflict resolution.
Our spiritual beliefs are violated when we are coerced to contribute financially to the military budget through the Internal Revenue Service federal income tax withholdings system.
As pacifists we do not own or use weapons and would rather not contribute to the manufacture, distribution and use of weapons.
When our tax contributions are used to subsidize weapons research as well as military and CIA operations we are acting in complicity with the commission of crimes against peace, war crimes and/or crimes against humanity as set forth in Nuremberg Principle Ⅳ: “The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under International Law, provided a moral choice was in fact possible to him.”
We believe that there can be no justification for killing another human being and that war and preparations for war are basically evil.
We do not believe that Americans benefit from maintaining a strong defense.
On the contrary, we suffer from maintaining a strong defense.
In the National Council of Churches, a body representing 32 Protestant, Orthodox and Anglican church bodies (including the United Methodist Church, Church of the Brethren, Friends United Meeting and American Baptist Church) adopted a statement on U.S. spending priorities.
NCC said, “When government priorities serve military interest at the expense of family life… the moral vision is discarded.”
The major spiritual belief systems existing in the world today — Buddhism, Christianity, Hinduism, Islam and Judaism — all contain a core essence of nonviolence, forgiveness and understanding.
For example, Buddhism teaches to cause no harm and to know no conflict.
All Buddhists are expected to exercise self-restraint and kindness toward all living creatures.
The founder of Buddhism, Siddhartha Gautama, became a master of nonviolent conflict resolution.
He stated, “I have stopped forever doing violence to beings.”
However, throughout history many people have creatively misinterpreted their own spiritual doctrines in order to justify and rationalize warring against their neighbors.
As a child in Catholic school, I learned basic Judeo-Christian principles that later became the foundation for my pacifism as an adult.
In Catechism class a great deal of emphasis was placed on the Ten Commandments.
The most profound for me was, “Thou shalt not kill” (Exodus 20:13).
I was taught that to kill another human being was a mortal sin.
I was also taught the Golden Rule, “Do unto others as you would have them do unto you” (Matthew 7:12).
I was taught to love my enemies and to turn the other cheek if struck.
The priests at my school encouraged the students to protest against U.S. military offensives abroad.
Though all Catholics are not necessarily in agreement with regard to Christ’s teachings of nonviolence, there are certainly many Christian sects practicing in the U.S. today whose members oppose participation in, or support of, the armed forces and the judicial arms of the state including the Amish, Church of the Brethren, Hutterian Brethren, Mennonite Church and Quakers (Society of Friends).
In “War Tax Concerns — A Quaker History” Edwin Bronner states, “Friends (Quakers) have historically refused to engage in military activities and have sought to achieve change through reconciliation rather than the use of force.
They have believed it wrong for one human being to take the life of another, either in war or through civil processes by means of capital punishment.
Quakers refer to the teaching of Jesus, especially in the Sermon on the Mount, as the basis for their position, in addition to their belief that the Inner Light guides them in the same path.”
The Rabbi Jesus offered teachings in pacifism in his Sermon on the Mount, “Blessed are the meek: for they shall inherit the Earth… Blessed are the peacemakers: for they shall be called the children of God.”
It should be noted that one of the three charges brought against the Rabbi Jesus which led to a sentence of crucifixion, was “forbidding the payment of taxes to the emperor” (also translated as “forbidding to pay tribute to Caesar”) (Luke 23:2).
In closing I would like to quote from an English translation of the ancient Tao Te Ching (translation by Frank MacHovec) wherein the master Lao-tse states, “War is Evil… Weapons are tools of destruction avoided by followers of Tao… Weapons are the tools of destruction not used by people of dignity… Whenever a great army is formed, hunger and evil follow… I would rather be invaded than be the invader; I would rather retreat one foot than advance one inch.”
“Military Tax Resistance of Lane County” is now, I believe, organized under the name of “Taxes for Peace Not War” and operates out of Eugene, Oregon.
Here is the text of Clare Hanrahan’s great speech that she delivered at a rally in Asheville, North Carolina.
Her speech repulsed the contemptible vampire liberals of MoveOn (they withdrew
from the rally when they heard a war tax resister would be addressing it)
better than if she had been wearing a garlic wreath, holding up a silver
cross, and shooting holy water from a super-soaker.
“The greatest changes in history have only come when people are willing to
put everything on the line.” Julia Butterfly Hill
Environmental activist and tree-sitter Julia Butterfly Hill took direct
action when the
IRS
claimed she owed them $150,000 from a court settlement. Instead of aiding and
abetting war, Julia redirected this money to education, arts and cultural
programs, community gardens, programs for Native Americans, alternatives to
incarceration, and environmental protection.
When war is illegal, isn’t paying war tax a crime?
I have refused to pay war taxes .
That’s the year I took the pledge. That’s when I decided to break the deadly
habit of paying for war.
It’s not just our federal taxes that fuel war, but our lifestyles of waste
and habitual consumption, this privilege that we maintain on the backs of the
destitute of the world, is upheld by the Pentagon and its deadly force.
I’m one of thousands of people around this country who openly identify
themselves as War Tax Resisters. Some file and refuse to pay. Some refuse to
file or cooperate in any way. Some refuse a portion of federal taxes, some
refuse to pay any at all.
Most War Tax Resisters are also Peace Tax Payers, redirecting refused war-tax
dollars to fund community needs. Local alternative Funds throughout the
U.S. each year
deliver more than $50,000 in refused war taxes to support constructive
projects.
As we gather here today to call out Bank of America, to demand that they stop
participating in this business of death — to demand that they stop funding
mountain top removal coal mining enterprises, stop facilitating the buildup
and modernization of nuclear weapons, and stop loaning millions to criminal
enterprises like Eric Prince and Blackwater/Xe, the largest mercenary
operation in the world.
As we say to Bank of America and its shareholders: Stop!
Are we willing to risk our own economic privilege to obstruct this business
of death?
Who will block the doors to the post office today when most Americans will
voluntarily submit taxes on the demand of the
IRS — the
taxes that fuel the Pentagon!
When war is illegal — I ask you — isn’t paying for war a crime?
Whatever the risk to property or privilege, career or liberty, we must stop.
We must stop supporting this system of destruction. Not merely because it is
immoral and unjust, but because it is illegal — according to International
Law.
The Pentagon and media are aligned in their efforts to hide the costs: the
maimed soldiers, the battlefield carnage, the grieving widows, the broken
souls, the poisoned Earth — funded with nearly one-half of every tax dollar
obediently submitted under threat.
The mandate of the Nuremberg War Crime Tribunal of
is clear:
Individuals have international duties which transcend the national
obligations of obedience. Therefore [individual citizens] have the duty to
[refuse to obey] domestic laws to prevent crimes against peace and humanity
from occurring.
We cannot say we did not know.
We who refuse to cooperate with the Internal Revenue Service in its coercive
efforts to collect the funds to wage illegal wars, are in fact upholding
International Law and treaties that compel citizens to refuse to cooperate
with the crimes of their government.
Each citizen has a responsibility to ensure that their own personal conduct
does not breach international law.
According to the International Criminal Court a person is criminally liable
who “aids, abets or assists” in the commission of such a crime “including
providing the means for its commission.”
Governments cannot wage war without the money to buy weapons, pay troops or
purchase supplies. Without the support of taxpayers and moneylenders war
would be impossible.
When war is illegal, isn’t paying war tax a crime?
Look around. The crime scene is everywhere. Let’s just talk about what we
harbor here in these ancient mountains — weapons of mass and indiscriminate
destruction — weapons that violate all the criteria for acceptable weapons of
war, including: “Distinction” (between combatants and non-combatants),
“Proportionality” (causing excessive loss of civilian life); “Protection of
Environment” (causing “widespread, longterm & severe damage”).
In Jonesboro, Tennessee, weaponized uranium in the form of armor-piercing
bullets is manufactured at AeroJet. It contaminates, kills, and deforms for
generation after generation. In Erwin, Tennessee, Nuclear fuel Services
manufactures the fuel for Trident Nuclear Submarines — the first strike
nuclear submarines, themselves a violation of International law, and in Oak
Ridge at the Y-12 nuclear bomb factory where billions more are being spent to
upgrade the
U.S. nuclear
weapons arsenal for generations.
The United States is the number one military spender and arms exporter in the
world.
U.S. war crimes
include “crimes against peace” such as the “planning, preparation, or
initiation of a war of aggression.” “Crimes against humanity,” (both
civilians and soldiers). Violations of the rules as to the “means and manner
by which war is to be conducted once begun.” These include the following
prohibitions: “killing of civilians, indiscriminate bombing, the use of
certain types of weapons, killing of defenseless soldiers, ill treatment of
POWs and attacks on non-military
targets.”
We can’t say we didn’t know.
Any violation of these two sets of laws is a war crime — when done on
purpose, as the
U.S. has done,
they are grave breaches — Nazis and Japanese following World War Ⅱ were
hanged for such grave breaches.
The United States and its leaders have committed international crimes. As
global citizens, under International law, we are complicit in these crimes
against humanity, these war crimes.
When war is illegal, paying for war is a war crime.
How long, I ask, will it take those of us who know the futility of the
Pentagon’s wars, how they rob us of our brightest and best, how they kill and
rape and maim, tear apart families, lay desolate the land, leave orphans and
widows and broken and discarded veterans wandering our streets, filling our
jails, or bringing the violence of war back home?
How long, war-tax payers, will you persist in this deadly submission?
We can’t say we didn’t know.
When war is illegal, isn’t paying war tax a crime?
A rarely used tactic in tax resistance campaigns is for resisters to turn themselves in for prosecution for having paid taxes.
This was used by a group of Welsh war tax resisters who went to the police and “confessed to the crime of paying income and VAT taxes used for British nuclear programs, in violation of international law” in .
The police declined to make any arrests.
An American war tax resister reports that when he refused to pay his taxes in , “I also asked the IRS if they could provide legal assurance that paying taxes would not leave me open to prosecution under the Nuremberg Principles.
The IRS replied that they could not provide a quick response to my letter since they had received ‘a large number of similar requests.’ ”
The legal reasoning, in the abstract, is not all that far-fetched, but it is a sort of affected naïveté to expect the government to respect it in this fashion.
This sort of tactic is a form of symbolic protest and can help to educate people about their accountability for war crimes conducted with their acquiescence and support.
Some bits and pieces from here and there:
The “necessity defense”: yes, your honor, I broke the law, but I had to
do it to prevent a greater harm — American activists have tried to use it
to defend their civil disobedience against the militarist government and
its stockpile of weapons of mass destruction, but rarely do the courts
even permit such an argument to be made
(activists in other countries have had
more success). But in the trial of the Transform Now Plowshares
activists in federal court ,
former U.S. Attorney General Ramsey Clark testified for the defense on the subject.
The activists — Greg Boertje-Obed, Megan Rice and Michael Walli — broke
into the Y-12 nuclear weapons plant , held a Christian ceremony with a bible and candles, splashed
some human blood about, and spray-painted messages like “woe to the empire
of blood” and “the fruit of justice is peace” on the walls. The empire,
not amused, and embarrassed that an 82-year-old nun made a fool of its
nuclear weapons security, has thrown the book at them.
Ramsey Clark is an interesting case. You can’t get much more
establishment than being the United States Attorney General (under Lyndon
Johnson). At that time, he was prosecuting anti-war activists (his office
successfully prosecuted Dr. Benjamin Spock for conspiracy to aid and abet
draft resistance, for instance). But since then he has become an
enthusiastic critic of the American empire — even to the extent of
defending, legally and otherwise, such unsavory American enemies as
Slobodan Milošević, Lyndon Larouche, Omar Abdel-Rahman, and Saddam
Hussein.
Clark testified that the use of nuclear weapons represents an
imminent — “omnipresent” was his word — threat. The judge was skeptical:
“Excuse me,” the Judge said. “Are you saying the President intends to
use nuclear weapons? Are you in a position to know that? Are you tied
in with the President? … does the President have his finger on the
button?”
“Well,” said Clark, “he walks around with
it by his
side.”
Then there was this examination of Clark by the defense attorney:
Quigley: Is it reasonable to believe that
what is being refurbished at Y12 are weapons of mass destruction?
Clark: It’s an established fact.
Quigley: And reasonable to believe they
violate international law?
Clark: Reasonable. Under the NPT we agreed to eliminate them.
Quigley: And I believe I just heard today
or yesterday that the Boston bomber was indicted for use of a weapon of
mass destruction — that is part of our criminal code…
The Judge stepped in. “A weapon in the
hands of a terrorist or a citizen is different than a weapon in the
hands of the government. A machine gun, or a tank—is that a fair
statement?”
Clark: It’s fair if you limit it to machine
guns or rifles, but weapons of mass destruction — the
U.S. is in
violation of the intent of the most important treaty we ever signed.
Quigley: Do you believe the continuing
threat of the use of Y12 weapons constitutes a war crime?
Clark: It is a reasonable and fair
statement of belief.
Quigley: And a soldier can commit war
crimes?
Clark: Yes.
Quigley: And using, or preparing to use
weapons of mass destruction is a war crime.
Clark: That is reasonable to believe.
Quigley: The defendants believe the work at
Y12 is preparation for genocide, could be carried out by civilians or
armed services. But they believe the weapons activities at Y12 are in
preparation for genocide and a violation of international law.
Clark: That is reasonable. Because of the
magnitude of the program at this time. One sub, one sub can carry one
hundred warheads. Eight submarines, on alert at all times, eight
hundred warheads in a position to strike. Think of maps. Eight hundred
places in Europe… or on the continent of the Americas. It is criminally
insane.
Quigley: Not homicidal, but omnicidal.
Clark: The life of the planet is at risk
from this one plant here in Tennessee.
The prosecutor tried to pin Clark down: “A minute ago, you testified
that the activities at the Y12 site were unlawful. Are the people who
work there criminals?”
Clark: They are engaged in a criminal
enterprise.
It was interesting to hear of arguments like these being explicitly
aired in court. I don’t really expect the judge to address them
forthrightly and at their worth, but there is some satisfaction in
imagining His Honor trying to figure out just how he’ll sidestep the
issue.
On I mentioned the chill I felt when I noticed that two Google execs’ new book on the future of the internet had gotten glowing prepublication reviews from folks like Tony Blair, Bill Clinton, Henry Kissinger, and a handful of other national security state celebs.
Here is an op-ed the book’s authors wrote for the Wall Street Journal.
It largely strikes a nonconfrontational freedom-is-good tyranny-is-bad tone, though I thought I saw a little saliva appear at the corners of the authors’ mouths when they wrote this:
The world’s autocrats will have to spend a great deal of money to build systems capable of monitoring and containing dissident energy.
They will need cell towers and servers, large data centers, specialized software, legions of trained personnel and reliable supplies of basic resources like electricity and Internet connectivity.
Once such an infrastructure is in place, repressive regimes then will need supercomputers to manage the glut of information.
The authors look at movements like the Arab Spring, and conclude that they petered out because their grassroots, leaderless, decentralized beginnings never matured:
“some sort of centralized authority must emerge if a democratic movement is to have any direction.”
Indeed, these grassroots, leaderless, decentralized movements constitute a threat:
a “mad consensus” that will require “a great leader” to defy, according to Henry Kissinger, whom they approvingly quote.
Over at Slate, Mya Frazier suggests that
Google has aspirations of statehood.
The internet is just such a grassroots, leaderless, decentralized
dystopia… a mad consensus in need of a great leader… and Google knows just
the company for the job.
At The New Yorker, James Surowiecki offers
a meditation on the American underground economy. “Ordinary Americans have gone underground, and, as the recovery continues to limp along, they seem to be doing it more and more.”
I’m not sure it makes much sense to spend time worrying about Obama’s
proposed budget. It’s part wish-list, part advertisement, but not policy.
But one of the things it includes is a 94% bump in the federal excise tax on cigarettes.
Every pack of cigarettes purchased would have a $1.95 federal excise tax
attached to it. While on the one hand, this would be one more reason to
quit smoking and to discourage others from taking up the habit, on the
other hand it would make tax resistance via smuggling that much more
attractive. State cigarette excise tax increases in New York, for example,
have grown to the extent that the majority of cigarettes smoked there are
smuggled in. As marijuana legalization spreads, expect the smuggling
networks that have so successfully supported the marijuana trade over the
years to find a new use in combating the cigarette tax.
There’s a new web site Tax Rebellion that is trying to push the case that citizens of countries like the U.K. or U.S. that habitually engage in war crimes and aggressive warfare have a legal obligation to withdraw their support (particularly their taxes) from their governments.
By the playbook of the great “privatization” swindle that has been so popular among governments in recent years, when the government of France designed its new tax on freight trucks, it contracted with an Italian company to implement the program. But then the bonnets rouges came along and burned down all the truck-scanning portals and forced the government to suspend the tax. The Italian company that won the contract, Ecomouv, was however smart enough to anticipate such an outcome in their contract, and they’re guaranteed an €18 million payment from the government every month whether they’re collecting any tax or not.
Taxi drivers in Tunisia are posting signs in the windows of their cabs that read “I will not pay tax!” and are daring the police to try to enforce new taxes on motorists against them.
Meanwhile, some Greek motorists have adopted the strategy of paying only a single euro of their road tax, while submitting a protest, as a way of baffling the bureaucracy.
Some international tax resistance news that has flashed across my browser in recent days:
Christopher Coverdale, a retired man living in Rye, England, has stopped paying his council tax on the grounds that to pay it would be to illegally support terrorist activity.
He has refused to pay more than £1,800 so far, and was recently given a 42-day jail term for his refusal.
“My case is that I refuse to break the law,” he said.
“I have never refused to pay tax but I am refusing to commit an illegal act: to hand over money for the purpose of terrorist actions.”
Last year, he sent a letter to his council asking them to verify that none of his tax money was supporting terrorist acts and war crimes, and added:
I find thoughtful critiques of tax resistance hard to come by (in the English-language web anyway).
Most criticisms these days are knee-jerk and not well-considered.
This is probably because tax resistance hasn’t risen to widespread use or become prominent in other ways in Anglophone countries lately, and so those who would argue against it haven’t seen any need to do so.
But in Michael Harrington tried to write such a critique.
At the time, Harrington was prominent in the Socialist Party, and as he became more enamored of the tactic of trying to get socialist policies enacted by working from within an established major party, helped to found what became the Democratic Socialists of America, a sort of left-side tug trying to influence the direction of the establishment Democratic Party Titanic.
That group behaves as though there were a seat at the table for a left-wing political party in ordinary American electoral politics, and as such is fervently non-revolutionary and indeed fairly protective of the status quo.
(The wikipedia page notes that “[t]he organization has at times endorsed Democratic electoral candidates, notably including Walter Mondale, Jesse Jackson, John Kerry, Barack Obama, and Bernie Sanders as well as Green Party candidate Ralph Nader.”)
Interestingly, Harrington started out in the Catholic Worker movement and was for a time editor of the Catholic Worker newspaper.
He therefore must have been familiar with the tax resistance of Ammon Hennacy and of others whom Hennacy introduced through his writing to Catholic Worker readers.
Here is Harrington’s critique of tax resistance in the context of the movement to oppose the U.S. war in Vietnam:
[I] oppose the notion that one can easily violate the law in a democratic society.
Democracy is an excruciatingly imperfect method of political organization — but the very best there is.…
[And] it is “blasphemous” when an individual casually pretends to be the voice of God and thereby places himself above his fellow citizens.
In short, I hold that, even in a manifestly inadequate democracy, the individual is normally obliged to obey the laws but may, under extreme and limited circumstances, be required to break them.
[T]he question of tax refusal, on the grounds that the government is engaged in an immoral exercise and that tax payment would implicate the citizen in this guilt, is something else again.
For there are indeed those who have… defended a “general theory of selective disobedience to law.”
This extends the primacy of the individual moral judgment into political spheres where it has not been recognized in the past.
So in terms of the general themes of this chapter it is a case eminently worth examining in some detail.
First of all, it is important to distinguish between the compulsion directed against a soldier, or even a protester enjoined from marching, and that exercised against a tax payer.
[The former cases are] much more immediate than the act of paying taxes.
But even more to the point, the tax payer who believes the war to be immoral has a clear alternative open to him, one that he can pursue without heroic courage and through the exercise of normal democratic rights.
In this he differs from the soldier, marcher, or sit-in activist.
He can organize politically and change the government which administers the taxes.
During the time that he is involved in this campaign he will not be commanded to do anything as decisive as taking another life; he will not be, through paying taxes, subjected to irreparable harm like the protest marcher; he will not be victimized by a mockery of the democratic process like the sit-in student of .
Second, the rationale for tax refusal usually rests upon the old economics… In the pre-Keynesian days, governments did indeed use tax bills as a means of raising revenues for specific purposes.
But even then, there was more than a little deception involved: the bonds which Americans purchased to “buy” tanks, planes, hospital supplies, etc. in World War Ⅱ were primarily useful in controlling inflation.
The military goods would have been produced whether the people purchased the bonds or not.
Now, however, Washington has become more frank about its general tax strategy, though it still resorts to patriotic appeals and old-fashioned economics when that is politically convenient (as it has become for Mr. Johnson on the Vietnam question).
The size of the federal budget is now dictated by the general state of the Gross National Product.
If the economy has excess capacity, Washington increases its spending in one way or another (through direct public investment, through a tax cut, etc.); if it is operating at full, or over-full, capacity, in theory the government is supposed to hold down demand either through cuts in spending (the favorite solution of the conservatives) or through an increase in taxes.
In this context, President Johnson’s proposal of a tax increase is, despite his politically motivated statements to the contrary, only tangentially related to the war in Vietnam and certainly not “necessary” to the prosecution of that conflict.
If there is one certainty in American politics it is that Congress, in a united front of hawks and doves, will send sufficient military supplies to Americans in a shooting war.
The real purpose of the tax increase is to act as a damper on the inflationary trends which the Administration economists have discerned.
Now it may rightly be said that these inflationary tendencies were given a considerable impetus by the war in Vietnam — but so was the employment of Negroes, and one would not oppose that.
More to the point, if Congress refuses the tax increase, presumably to the cheers of at least some in the peace movement, the result will not be to bring the end of the war in Vietnam any closer but to place the main burden of that conflict on the black and white poor.
How blind can you be to think that some change in American tax policy would place the main burden of the Vietnam War on the black and white poor of America.
This seems to be the meat of Harrington’s gripe: that to champion tax refusal means to side with those who would cut social spending over those who would raise taxes, so even if those taxes also pay for reprehensible war policies — well, if you periodically have to throw thousands of Vietnamese people under the bus to keep chugging along to the Great Society, so be it.
For in the political realities of , the real debate over the tax increase was a liberal-conservative antagonism over what groups should be required to sacrifice most in the fight against inflation.
The Right proposed to deal with the problem through cut-backs in social welfare spending, the Left through the utilization of a highly imperfect tax instrument which, for all of its faults, is the most progressive means of fighting inflation the society possesses.
Should the antiwar movement, having not yet succeeded in winning a political majority to put an end to the killing, adopt a tactic whose actual effect will be to tax the ghettos and the rural slums?…
Most of the people who have been attracted to the notion of tax refusal during the course of the Vietnam War would regard all the foregoing as mere sophistry.
Their point of departure is not rational or political, but it is substantial and understandable.
Tax paying is one of the few “personal” relationships which the middle-class citizen has with the government. Rightly outraged by a horrible war, many people seek desperately for some way that the individual can communicate his distress to the politicians and the IBM machines.
And tax refusal is one of the few means at hand.
I sympathize profoundly with those who have taken this position — but I cannot agree with them, and not simply for reasons of economic theory.
One should be careful, particularly in a democratic society, of proclaiming too many “Nuremburg” obligations.
The Court of the victors which sat in judgment of the Nazis asserted a natural-law duty of resistance, and even heroic resistance, to clearly immoral military orders.
But, and this is a very important point, the country at issue was Nazi Germany, i.e., a fascist dictatorship.
Under such circumstances, I would certainly affirm the right of all citizens to civil disobedience and, for that matter, to the violent overthrow of their own government — and the citizen’s duty to refuse monstrous commands, even if that meant sacrificing life itself.
You can feel a “But” coming, right?
“Under such circumstances [a Nazi dictatorship], I would certainly affirm… the citizen’s duty to refuse monstrous commands” but in a democracy like ours, imperfect though it may be, you must obey those monstrous commands like a good little citizen.
Sure enough:
But the United States of is hardly Nazi Germany; the tax payer is not really being ordered to do anything more specific than to help in maintaining a boom; and there exist alternate methods of bringing the war to an end… Tax refusal may well be personally therapeutic and morally exhilarating; but it does not pass the supreme test, for it contributes little or nothing to ending the immoral war in Vietnam.
If an individual feels conscientiously compelled to take this course, I would defend all of his civil liberties, but I cannot agree that he has either enunciated a binding obligation or formulated an effective tactic for bringing the killing to an end.
[In short,] the “Nuremberg” analogy — whereby direct and personal participation in the genocidal activities of a fascist dictatorship is equated with paying taxes for a tragic war undertaken by a relatively democratic society — is too loose to be compelling.
Moreover, the very structural evolution of modern government, particularly on questions of fiscal policy, undermines the assumption that there is any relationship between a particular tax and a war policy.
Therefore, there does not seem to be a good case for a duty of tax refusal, although individuals may make the tactical decision to engage in this form of protest as a form of witness.
In the latter case, the debate over tax refusal is not principled, but rather will be concerned with the effectiveness of the witness.
I personally do not think it is a very useful form of opposition mainly because it is almost inevitably restricted to the middle class.
So, in the end, not a very good critique, but it makes some stabs at good arguments and has the seeds of some potentially thoughtful critiques of tax resistance.
Most criticisms of tax resistance fall into one of three categories: 1) it’s not ethical, 2) it’s not practical, 3) it’s not safe.
Harrington’s critique sticks with the first two, and can be summarized in this way:
Tax resistance isn’t ethical because the democratic process is precious and fragile and so except in extreme circumstances individuals should not permit their moral intuitions to override majority decisions.
The feeling that one is complicit in evil by paying taxes to a democratic government that commits evil does not rise to this threshold.
Tax resistance isn’t practical because there’s no real relationship between the government’s tax revenue and its capability to spend on war or other wicked activities.
