Torture & Allegiance: Part 2, Martyrs or Criminals?

A couple of you wondered in the last post if Kahn's locations of sovereignty and law (from his book Sacred Violence) are really so discrete. Which is a fair criticism. In this post I want to try to illustrate those spaces a bit more and show how, in my opinion, they do provide an interesting lens upon various aspects of political life.

An interesting illustration concerning the locations of sovereignty and law is how Kahn relates the two foundational documents of America--The Declaration of Independence and the Constitution--to those spaces.

Kahn sees the Declaration as a document of sovereignty. It is a document that rejects the sovereignty of the British King and establishes a new political order. It is, at root, a declaration of war. It is a revolutionary document. From the final section of the Declaration:

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

For Kahn, the Declaration is not a social contract or set of laws. It is a document that breaks and reorders sacred allegiances. It redefines enemies and friends. And, to accomplish this destruction of one sovereign to create a new one, the signers were willing to die ("mutually pledge each other our lives"). As Benjamin Franklin quipped after signing the Declaration, "We must all hang together or, most assuredly, we shall all hang separately."

In contrast to the Declaration, the Constitution of the United States is a social contract. It is not a document of revolution or war. The Constitution doesn't create a new sovereign, it orders one by establishing the law. From the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The point for Kahn is that while the Constitution provides stability and the rule of law, The Declaration of Independence is a radicalizing influence in American life. The Union was created by revolutionary bloodshed. Thus, built into the American political system is this notion that new revolutionaries can throw off a tyrannical or dysfunctional national government. The Civil War was fought about just this issue. Thus, when Lincoln gave the Gettysburg Address he reaches back to the Declaration rather than the Constitution:

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure.

The political point between Lincoln and the South was this: Who gets to claim the Declaration? Who gets to define sovereignty? The answer isn't abstract. It is a matter of war. Of killing and being killed. Thus the religious language of the Gettysburg Address:

But, in a larger sense, we can not dedicate... we can not consecrate...we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government: of the people, by the people, for the people, shall not perish from the earth.

The point for contrasting the Declaration and the Constitution is that they illustrate Kahn's distinctions between law and sovereignty. The Declaration, as a document of sovereignty, is a document about allegiances, revolution, enemies, tyrants and war. The Constitution is about justice, social contract and law within an already established union. Again, the Declaration creates the Union and the Constitution orders it.

Why go into this distinction? Well, it allows us to track the cross-currents in American political speech. Specifically, speech that appeals to the Declaration will be revolutionary speech, speech about the dissolution of the Union, of creating a new sovereign. That is, speech that appeals to the Declaration will raise the specter of tyranny and make calls for revolution. This kind of speech is volatile because it is speech about war. Speech motivated by the Declaration is inherently violent speech.

Such speech raises the same question faced in the Civil War. Is this revolutionary speech treasonous? In rejecting the sovereignty of the Union who gets to claim the Founding Fathers? Those claiming the Declaration (revolution) or those claiming the Constitution (union)? Regardless, as witnessed in the Civil War, a debate about sovereignty is a debate conducted in blood.

Let me continue to illustrate the differences between law and sovereignty by taking up another illustration used by Kahn. How should we see someone like Timothy McVeigh, the Oklahoma City bomber? McVeigh took his political cues from the Declaration of Independence and considered his attack to be understood as a rejection of American sovereignty. Notice the equivalency he makes in this description of his motives for the bombing:

Additionally, borrowing a page from U.S. foreign policy, I decided to send a message to a government that was becoming increasingly hostile, by bombing a government building and the government employees within that building who represent that government. Bombing the Murrah Federal Building was morally and strategically equivalent to the U.S. hitting a government building in Serbia, Iraq, or other nations. (see enclosed) Based on observations of the policies of my own government, I viewed this action as an acceptable option. From this perspective, what occurred in Oklahoma City was no different than what Americans rain on the heads of others all the time, and subsequently, my mindset was and is one of clinical detachment. (The bombing of the Murrah building was not personal , no more than when Air Force, Army, Navy, or Marine personnel bomb or launch cruise missiles against government installations and their personnel.)

Here is where I think Kahn's analysis is interesting and helpful. McVeigh wanted to locate his action in the space of sovereignty. He wanted his action to be against The United States of America. That is, McVeigh doesn't see his act as criminal, as existing within the space of law. McVeigh is aiming at something deeper than law. His is an act of war. In short, he wants to be seen as a martyr.

Pushing against this, the American judicial system wanted to deny McVeigh his access to that location. McVeigh was, simply, a criminal. McVeigh wasn't a revolutionary martyr. He was a psychopathic killer. By denying McVeigh martyrdom, by locating his action within the space of law rather than revolution, the American government denied McVeigh his route to heroism. Martyrs are heroic, even to false gods. But criminals are never heroic.

The point is, the location of McVeigh is critical to how, politically, one sees his actions. If one locates McVeigh in the space of sovereignty then he's a hero to a revolutionary cause. But if you locate McVeigh in the space of law he's just a cold-blooded killer. Location is everything.

The point for today's post is that I think Kahn's division between law and sovereignty isn't wholly without merit. It might not be able to shed much light on the torture debates, but it is a useful hermeneutic to analyze American political discourse. Because there sure has been a lot of talk lately about revolution, tyranny, and secession (recall I live in Texas). Plus, Kahn's model allows us to examine how one's location in the political landscape is fraught with meaning (e.g., Are you a criminal or a patriot?). Location defines heroes, martyrs and criminals.

This entry was posted by Richard Beck. Bookmark the permalink.

17 thoughts on “Torture & Allegiance: Part 2, Martyrs or Criminals?”

  1. Awesome stuff here. Very fascinating insight into the differences in perspective and language between conservatives and liberals.

    But I must push slightly that if Khan thinks he is describing the American experiment, I think he is wrong. The Declaration of Independence certainly IS about sovereignty, but it is about replacing a "sovereign" with the sovereignty of the rule of law. Law is not merely a social contract, but IS the definition of the boundaries of sovereignty. Hence the enshrining of the constitution as the foundation of the state.

    Thus conservatives who want to see sovereignty as something separate from law betray America no matter how they cloak it in patriotism, and Liberals are right to fear this quasi religious rhetoric about sacrifice and war and torture because it is antithetical to our national ideals.

  2. Richard and the group:
    I agree that Kahn’s model ‘is a useful hermeneutic to analyze … political discourse’ and I agree that one's location in the political landscape is fraught with meaning (e.g., Are you a criminal or a patriot?). Location defines heroes, martyrs and criminals’. … and dare I add the terms ‘conservative, ‘democrat’, ‘liberal’ and possibly also include the concept of flags, badges and banners. That said however, I am reminded of the writings and struggles of great Sir Thomas Moore, 'A Man for all Seasons'. He discovered, to his cost, and I paraphrase … in matters of argument concerning law, religion and politics, the options were simple you may loose your head, or you could loose your soul, but that it is difficult to hold on to both.

  3. Great topic. Frank, I like your comment about losing your head or your soul.

    My mindset right now is that America is losing it's "soul".

    When Obama the other day spoke about American values and elimination of torture as a means of getting back to those values (for the world to see) I couldn't help but think about America and abortion, and America and the poor, and America and euthanasia, and pick your moral issue.

    This post on where the torture debate is located has been very insightful.

    We "locate" our issues in such a manner that we forget where our allegiance should be ... the city of man or the city of God.


  4. So could it be that the church has lost its mind, while the country has lost its soul, and individuals have lost both heart and strength.

  5. This is phenomenal stuff, Richard. It raises so many issues and sheds real light on what's going on in the country right now.

    A couple immediate thoughts:

    1) This reminds me of Robert Brimlow's account of just war theory in his What About Hitler?, where he addresses the question of America going into Iraq (or any war) alongside the claims of Osama bin Laden. He arrives at a place that views just war theory as incoherent, to the extent that in international affairs and/or secular society, all claims to authority are equally viable (that is, unable to be negotiated), and if one has potentially legitimate arguments to make for violent acts of war, anything is on the table. Whether you agree with him or not, he seems to be saying the same thing as Kahn: Who gets to decide in which realm, law or sovereignty, violent acts are committed?

    2) Brimlow and Kahn's accounts seem equally to point to the larger issue: The incoherence of political discourse in America. Just as much as American courts viewed McVeigh's acts as terrorism (i.e., "under law"), English courts viewed American rebellion in the colonies as "under law," and thus not legitimate. Of course, as Americans we want to look backwards and say, of course, those acts were justified. But there is no ultimate authority here. No amount of adjudication or time will "get" us to a place of agreement. Which is only another way of saying that we do not have an agreement about proper authority. Thus, Americans can shout all they want back and forth to each other about the morality or effectiveness of torture, but it's not going to get anywhere.

    I presume this is where we are headed, to some degree, with the rest of this series. Christians do ascribe to an authority, and that authority speaks authoritatively. It doesn't cleanly answer ethical or political issues, but it is a space in which we can speak coherently with one another.

    (Depending on tradition, "it" might be "God," "the church," and/or "Scripture." I realize the dissonance, but the claim remains. As well, incidentally, I believe this is where the work of Alasdair MacIntyre steps in, specifically regarding the language of "rights.")

    Thanks, as always, for a stimulating post.

  6. Ok this is good. SO we have progressed to the point in the conversation where a bit of an impasse as erupted. (Brad pointed this out above) The "spheres" of sovereignty and law operate on different plains and require allegiances that cannot be divided. So, at any given point we must decide (subconsciously), "Im going with Law" on this one -just as the US did with McVeigh- or "I am going with sovereignty." Ok, the so-called "state of the discussion" has been advanced but where do we go from here?

    It seems evident that, on some level, these two spaces can talk to (really, around or over) each other all day and not get anywhere. It is ironic that, given our original topic of discussion, that eventually the "Law" portion of our legislative branch will eventually decide on the torture issue. But does this decision widen ontological chasm between the two spaces? There is already a disconnect (at least in the minds of Americans) between spaces of law and sovereignty but the fact that America's de facto functional space is "law" means that sovereignty often gets no voice in the conversation. Perhaps this is why conservatives and pro-Iraq people (including many of the soldiers) are frustrated with the liberal war-position.

  7. Thanks Brad for opening a little door allowing me to raise a burning question (probably addressed later in this series).

    I'm looking forward to discussions of locations of sovereignty and law, torture, and the "ticking time bomb" as they relate to God, the church's interpretation of allegiance to God/Scripture, and eternal torment (torture).

    1. Exactly WHAT is the "ticking
    time bomb" to God and those
    proponents of an eternal
    torment soteriology?
    2. Exactly whose "lives" are
    threatened by that "ticking
    time bomb"?
    3. If eternal torment (torture)
    is being asserted in the name
    of sovereignty and law, or
    some combination of both, what
    exactly is the DECLARATION -
    especially since endless fiery
    torture is imputed as and end,
    and not just a means to an end?

    Gary Y

  8. In America, our civil liberties are protected by our Constitution. That is what the debate is about concerning homosexuality, or other social issues. The individual is sovereign in this sense, and rightfully so.

    Laws are what determine or define what is "lawful" or appropriate, which is legislated in our country by elected officials. These elected officals are to represent us, the people.

    As we are a diverse people, we do not establish a religion, this protect individual sovereignty as well. We can be free to express and worship how we watn...

    But, when religions enter the public square and demands that civil liberties be taken away under the name of God, then where go civil liberties and individual sovereignty? This is why there is a Separation of Church and State!

    On the other hand, if the religious do not influence the public square, then where goes the law, as to societial norms and values? But, the religious need a well-informed voice to be credible and to be heard. This is not what tradition usually affirms, as reason has been dismissed as undermining of tradition, altogether, as usually, tradition only affirms the value or standards of "what always has been" without questioning it.

    As to how one views an action due to location, one must ascertain what is of most importance in a certain situation. Is the law that discriminates one that should be upheld? And on what basis is the discrimination? Is the discrimination something that is valid? And on what grounds? This debate is the one held on human rights, international law (the liberal view) or nation-state rights and sovereignty (conservative view).

    It is imperative to evaluate where one's commitment is and why. Ultimately, an individual's decesion and commitment boils done to a value judgment, as there is no right and wrong. This is why I think it is a false dichotomy to set up one's allegience to "god" versus one's nation. One can only respond or react to the information given and sometimes if one does not have all the information, then one can be acting foolishly, but that is still protected by our nation's laws under "ignorance" or "freedom of inoformation act" in our form of government. Our country values reasonable discourse and our defense is won if there is a reasonable reasons for the discussion.

    But, religion should never demand one's life for allegience, otherwise, it will limit reason's voice!

  9. There's no balance between law and sovereignty. Declaring sovereignty is rejecting the existing law, and accepting whatever consequences result. Legally, Ben Franklin was exactly the same as McVeigh, a traitor. The difference was that no one else thought McVeigh was right. Many other people thought Franklin was right.

    In human terms, the definition of right is whether you can get enough people (and power) on your side so that you can win the inevitable war against the powers that be. The more just your cause, the more support you can draw.

    It's a very inefficient system that often doesn't work. The Nazis came to power and the North Koreans haven't revolted, for example. But the Nazi's were defeated within ten years and Kim Jong Il has to kill his country to suppress them. It can't last forever.

    As an aside, imagine how many attempts at revolution have been averted the past sixteen years by the thought that the current president would be gone by a certain date. To really see conservatives go nuts, go back to Clinton tossing around the idea of getting himself a third term. Then imagine the exploding heads if Bush had suggested such a thing.

    How this applies to God is left as an exercise for tomorrow.

  10. So if we interpret Rick Perry's actions and statements in light of this, is he posturing:

    A. Texas might ultimately reject the sovereignty of the US and establish a new political order.


    B. The current law of the US does not prohibit secession, and choosing to do so is merely exercising a right under the order of law.

    Is there a way to talk about revolution and secession without talking about sovereignty?

  11. In thinking about sovereignty and law, our nation balances "state power" as well as federal power. There is "no sovereignty when it comes to the nation as the nation is made of individual states. Each state has its own state government, which determines what that state's strategic plan will be. Our national representatives are to represent their state before our government in its own interests. Nationalism and nationalization is a threat to our government's understanding of itself, i believe.

    The law is established to protect the political order, so that there is this balance of power and accountability down to the individual voter. As because our government represents "the individuals that make up the government (by/for the people), then, laws are to protect sovereignty where it concerns the right of balancing power. This is what checks and balances power.

  12. Excellent post! I wonder if this dichotomy will truly ever be understood or resolved. I will be anxiously awaiting the next posting :).

    I write only, as someone versed in law to correct a common misconception governing the "separation of church and state" principle espoused in the comments. Contrary to popular belief, the phrase "separation of Church and State" does not exist in the Constitution. The first amendment has two clauses governing religion, one stating that the Federal Government will not "respect an establishment of religion," the other protecting the "free exercise thereof."

    The concept of the "Separation of Church and State," came only from Thomas Jefferson's letter to the Danbury Baptists, which was actually written in the context of Jefferson's assuaging the church's fears of government interference. The phrase first made its foray into Establishment Clause Jurisprudence in Everson v. Bd. of Education in 1947--well over a century later. In 1789, near the time of ratification, the US issued instructions in developing the Northwest Territory that "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." (Statement from Northwest Ordinance).

    Although this illustration is not definitive for resolving many of our modern concerns, I would counsel that the notion of a "separation of church and state" is not strictly speaking a Constitutional one, but rather a creation of the Judiciary.

  13. The wall between Church and State is one that is not it means freedom OF relgion, NOT freedom FROM religion! That is a great distinction between that little preposition.

    I don't know whether the differences will ever be "hammered out" universally, as long as there are individuals with different consciences, and different situations..

    This becomes a problem when there is no consensus concerning cultural norms or values, concerning a religious tradition that demands political obedience.

  14. Richard,

    Location, location, location . . .!

    It seems to me that much of what Kahn is doing leads to Girard's notion of divinely authorized violence sacralizing the "social contract" and bringing or maintaining social peace. Lincoln's "Gettsburg Address" contains sacralizing language blessing "a new birth of freedom."
    For me, both Chris and Gary touch on the heart of the matter: innocence, guilt, and the use of violence to maintain order.

    Similarly, Mark Danner's remarks in his "New York Review of Books" article, "The Red Cross Torture Report" gives sacralized violence it contemporary political context: "There is a reason that the myth of the 'ticking bomb' and the daring, ruthless US agent who will do anything to stop its detonation--anything including torture, a step that proves his commitment and his seriousness--is sacralized in popular culture, and not only in television dramas like '24' but in 'Dirty Harry' and the other movies that are its ancestors. The story of the ticking bomb and the torturing hero who defuses it offers a calming message to combat pervasive anxiety and fear--that no matter what horrible threats loom, there are those who will make use of untrammeled government power to protect the country. It also appeals to uglier and equally powerful emotions: the desire for retribution, the urge to punish and avenge, the felt need in the face of vulnerability to assert power."

    After the fashion of Jack Bauer and Dirty Harry, Dick Cheney prejudges (in Girard's language, he), scapegoats the detainees at Abu Grab: "These are evil people. And we're not going to win this fight by turning the other cheek. If it hadn't been for what we did--with respect to the . . . enhanced interrogation techniques [nice Orwellian euphemism for torture] for high value detainees. . .--then we would have been attacked again."

    A medievalism indeed: "Neca eos omnes. Deus suos agnoset."


  15. I'm going to go with Aric on this one. Bound up in one's allegiance to "America" is not only a commitment to protect its people and territory, but also to protect its ideals -- one such being the rule of law, and another being the proposition that all people are created equal and endowed with certain unalienable rights.

    Seen in this light, torture is both illegal and disloyal.

    Sure, you can (and should) draw a distinction between whether a thing is legally justified or, I dunno, morally justified ... but it's awfully dangerous to posit these two spheres and say that something is a matter of "allegiance", wherein you're just following orders or just being loyal and therefore immune from moral or intellectual critique.

Leave a Reply