Malum

There's been some talk of charging members of the Bush Administration with war crimes for their conduct during this Global War on Terror. Talk like this generally disturbs me mostly because my experience with it has shown less malicious intent and more a staggering level of naivete and general incompetence. Were we to begin criminally prosecuting for those sins, there would be no one left in Government-- particularly the State Department. However, I want to address these charges seriously because I do not want to make the same mistake those on the opposing side of this issue are so quick to make-- which is the suspicion of nefarious motives. So let's look at this issue seriously and from several levels.

First, if we are to discuss criminal behavior, we must define it. Simply put, criminal behavior is any behavior that is contrary to the law. That's a simple definition and a good working one but in our complex world, it really tells us next to nothing about how to actually behave. In the modern world, academic definitions are mostly useless. Definitions must give you a capacity for action or they are meaningless. Saying that criminal behavior is contrary to the law is such a definition. Under whose law? Which jurisdiction? What is jurisdiction for that matter? Before this devolves into legal minutiae, I want to bring a broad philosophical point about law. Generally, we believe that laws are necessary for groups of people to live together peacefully. By each person accepting some restraint, everyone gains a measure of security. With this in mind, it becomes ridiculous to believe that laws can give us anything. They cannot. They can only take things away. They are limiting and as such should be limited. We are born free and have rules instilled in us through learning and culture. However, as different as people can be, we are also very much the same. I certainly have more common with a Touareg tribesman in Northern Africa than I do with my Maltese puppy. As humans we share the same basic needs.

Homo sum; humani nihil a me alienum puto.

Broadly, our laws protect against two types of evil: malum in se and malum prohibitum. "Malum in se" is the type of evil we all can instantly recognize. You see it and no matter where you're from, you unquestionably know it as evil. "Malum prohibitum" is regulational evil-- as when you break the speed limit or fudge a little on your taxes. It's bad because the powers that be say its bad-- not because it is necessarily "evil."

Within a set legal structure such as a nation-state, malum prohibitum and malum in se are relatively interchangeable. There may be differences in punishments but it is just as a likely there won't be. (In California, you can do 8 years for murder and 20 years for selling drugs.) Within this nation-state bubble, you can impose whatever standards you wish because the State is the monopolizer of force and the final arbiter for its legitimate use. However, outside of this bubble, the State cannot wield any power because it doesn't have the force to enforce its edicts.

Now, this seems a very pedestrian idea of the law. Can it really be so base? The Romans believed that "justice" was simply what you could compel. In 2008, things aren't that much different. We tip toe around Muslim sensibilities because we're afraid of the violence they might bring to bear. Force, now as always, is the ultima ratio.

Aristotle said that courage is the first of qualities because it is the quality that allows every other to be born. Without courage, nothing happens. No beauty, no art, nothing. In order to have these beautiful things, we must carve out a place in the wild world where these softer qualities can flourish. They cannot exist in nature. True, nature can be beautiful but it is far more often terrible, unyielding and intransigent. Historically, we have always given a special few the right to step beyond our societal norms to protect us from what might burst our little bubble of security. And not to push the metaphor but is is apt. Whatever agreement we have all made to maintain some group security is remarkable fragile. Look at the aftermath of Hurricane Katrina. However, well-bred and genteel, we are but a step away from savagery.

Civilization is fragile. We, in the West have already gone through our Dark Ages, and we were lucky enough to come through it intact. There is no guarantee that we would do so again. Because of this-- civilization (and specifically, our civilization) must be protected at all costs. We must be able to sacrifice it all to protect it because without it, there is nothing. True, the administration made mistakes and overstepped in a few areas but to punish them after the fact, instead of merely correctly the mistake is foolish and short-sighted. Fix the problem, not the blame.

Simply put, if you prosecute all the men who risk everything-- even eternal damnation in the afterlife-- to protect our society, how does anyone expect to field such men in the future? Why would I risk everything to defend a Country willing to throw me in jail after it's done with me? Better I should try my hand on Wall Street. It is already hard enough to get smart, capable men to chose a life of poverty, danger and obscurity in service of the country. Start prosecuting them and you'll soon have none. And all the media-types, professors and pundits who are clamoring for their heads will make but a speed bump when the barbarians are at the gate.