Tuesday, November 17, 2015

"In Times of War, the Law is Silent"

Cicero, in his speech normally referred to as Pro Milone, spoke the words which serve as the title to this post.  Well, being a Roman of the first century B.C.E., he actually said "inter arma enim silent leges" or at least that is how his words have come down to us.  The speech was given and the words were spoken in favor of the Roman politician Milo (Titus Annius Milo) and against Publius Clodius Pulcher (not to be confused with Publius Claudius Pulcher, who as I've mentioned before I admire for his treatment of the sacred chickens).

The speech was given during a time when both Clodius and Milo were inflaming the Roman mob, driving it to a most impressive spree of violence in favor of the political factions they represented.  They also hired armed mercenaries to threaten one another, and we're told gladiators were brought to sessions of the Senate to cow senators into compliance.  Clodius was eventually killed, and Cicero defended Milo, who was charged with the murder of Clodius.  In his defense, Cicero did not bother claiming Milo was not involved in the killing, and instead claimed that it was necessary, and lawful self-defense, in a time of emergency.  In fact, "war" wasn't referred to by Cicero, but arms were (arma) and in Latin silent doesn't mean "silent" but rather "mute."

Cicero himself, while consul, with the approval of the Senate condemned Roman citizens to death without trial during the time of the Cataline conspiracy against the Roman Republic.  No doubt he felt the law was silent at that time as well. 

It must be acknowledged that since these words were spoken, they and the rule they state have often come to mind and been relied on by those in power (and others) whenever there is armed conflict and the belief is that laws applicable in times of peace must stand mute until the conflict is resolved.  That was the case after 9/11, and long before that.  It's likely that will be the case again regarding the terrorist attacks in Paris.

Do these attacks indicate that this is a time when law, or some laws, should be silenced?  This should be decided as soon as possible, I think.  Otherwise, response to the threat will be haphazard, and it's likely nothing will be achieved of lasting effect.  Our leaders will end up doing what they always do, and blame one another for the lack of success while people die.

Anyone with due regard for the rule of law must find the claim made by Cicero to be disturbing.  I for one am disturbed, but not merely by the fact that the claim, if true, allows for the waiver of the laws, but because such waiver--a deliberate failure to enforce or honor the law--may actually be necessary, or at least prudent, in extreme circumstances.  There is a danger that those who waive the law may do so unwisely, or solely for their own benefit, or as part of scheme of oppression, or maliciously  There is also a danger that a failure to waive legal restrictions may lead to grievous harm.

It seems clear that Cicero didn't mean that all laws are silent in times of conflict or emergency, and there is no reason to believe that is how the statement should be interpreted.  But depending upon the nature of the emergency, it's unsurprising and not necessarily wrong if certain laws are deemed not to apply in certain circumstances.  Whether that should be the case and, if so, what laws are to be disregarded, is a matter of the greatest significance and should be the subject of careful consideration.

It's unlikely there will be careful consideration, though, or indeed intelligent consideration of any kind, with respect to any response.  Responses to attacks of this kind are visceral, and this also is understandable.  They cannot be tolerated or justified; they must cease.  Perhaps the world at large will finally understand, now,  the magnitude of the evil of these primitives and their death cult and make a unified effort to rid us of them, setting aside selfish concerns and quests for power.

If it is decided that laws should become silent, it should be recognized that this should be the case only because a crisis is of such significance that it should be deemed war or the equivalent of war.  Is that a commitment we wish to make?  It seems we've been putting that off, at least as to the current threat, and possibly as to others if by war we mean a national devotion to the conflict. If we are willing to commit to it, what will we do in pursuing the war?

The tendency is to demand that the threat be destroyed through the use of "any means necessary."  This is a thoughtless response, and generally merely indicates we don't know what means to employ.  Thus we've sanctioned torture in the past, and some still do and will, despite the fact that it's usefulness (if not its morality) has been questioned even by those who have not hesitated to make war, like Napoleon.  Sometimes, it seems, we're impressed by responses only if they're ruthless.  But it shouldn't be the ruthlessness of a response that is valued.  It should be valued only if it is effective, and a thoughtless response is bound to be ineffective.  One remembers the boastfulness behind the "shock and awe" tactics employed not all that long ago.  Those tactics seem to have had no useful result.

So chest pounding and loud, flashy tactics will do us little good.  If this is the great fight of our times, then it should be treated as such, and a sustained and devastating response made, not a piecemeal one.  However, it's doubtful there will be such a response unless it becomes a coordinated effort by all nations with an interest in the area, and that for good or ill should include those nations which maintain they are Islamic.  If they refuse to contribute, though, the response must still be made.  Either that, or we continue to be subject to such attacks, doing the best we can to avoid them.

What of the law in all this?  Well, it's unclear just what laws would be subject to consideration and waiver at this time, except those applicable to privacy and those related to the conduct of war and the treatment of prisoners.  We've already evidenced a disregard for laws impacting those issues, though, without putting the nation on a war footing.  However, it's conceivable that others, such as those prohibiting discrimination, would come under scrutiny.   Is there such a thing as "profiling" at a time of crises?  is there a legal obligation to take in refugees?  To what extent are the boundaries of sovereign nations to be honored?  Should we restrict or prohibit immigration?

If this is the great fight of our times, then it is inevitable that laws will be found to conflict with war aims.  We must be prepared to address that conflict as well.  But all this comes into play only when we've decided what our response will be.

For a response of such magnitude that it will bring the law into scrutiny and require a national commitment, it seems clear to me that Congress must be involved.  That would be a "real war", and it is the Congress which has the power to declare a real war, though it has shirked this terrible duty often in the past by granting war powers to the Executive.  All our elected representatives should be held responsible for such a decision.

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