Fauxbama Strikes Again

As everyone not out fishing has heard, the debt ceiling negotiations between President Obama and the Republican leadership have run into a wall. The posturing in Washington is so intense that politicians will need a batallion of chiropractors to realign their spines.

The long and short of the matter is very simple. The current budget deficit and the accumulated public debt arises from two primary causes: (1) a decrease in revenue due to tax cuts for the rich and (2) an increase in expenditures on warfare. The debt is owed to private investors, foreign governments and (due to some fancy fiscal fiddling) by the Government to itself. Obama’s solution for paying down the debt has been to entice Republican support for taxing the rich by offering (3) cut backs to Social Security and medical care. It’s as simple and crude as that. But just in case you didn’t catch the shell game shuffle, we will play it out again in slow motion.

The Posturing

Since April 2011, the President has been pushing for a four trillion dollar “Grand Plan” that will, he says, provide a “balanced deficit reduction framework” and a “pro-growth economic strategy” which “lays the foundation for strong private-sector job growth and ensures that shared prosperity will keep the American dream alive for generations to come.” (White House Fact Sheet, 13 April 2011)[1]

The Republican leadership, on the other hand, is adamantly opposed to any plan that will involve “progressivity” in tax rates no matter what. The “no matter what” includes stabbing the nation’s credit rating in the back.

In response to this stand-off, credit rating agencies have warned that they might cut the government's top-rung debt rating. [2] This past week, an evidently panicked China, which holds one trillion dollars of U.S. government bonds, repeated its June warning not to “play with fire” and urged the United States to adopt “responsible policies... to guarantee the interests of investors.” [3] China was joined by Republican Senator Mitch McConnell who coyly opposes his own party’s brinkmanship stating that default “destroys your brand and would give the president an opportunity to blame Republicans for a bad economy.” [4]

From the sidelines, Senator Bernie Sanders (Ind-Vt) issued a call not to balance the budget “on the backs of the most vulnerable people in this country” with “horrendous cuts” to programs which “working people desperately need [and] that are utilized every day by the elderly, by the sick, by our children.” Deficit reduction, he said, “should be about shared sacrifice” and needed to include cuts in run away military spending and taxes on large corporations. Senator Sanders urged the public to join in and sign his letter to Obama. [5]

In this past weekend’s radio address (16 July), Obama urged an end political posturing, stating that the deficit problem could not be solved “without asking the wealthiest Americans to pay their fair share.” Obama said that he was “willing to compromise” and “willing to do what it takes to solve this problem, even if it’s not politically popular” but “if we’re going to ask seniors, or students, or middle-class Americans to sacrifice, then we have to ask corporations and the wealthiest Americans to share in that sacrifice.” [6]

So, did Sanders’ call for “shared sacrifice” finally get through to the President? No. He is still "going to ask" seniors and students to sacrifice. The “shared sacrifice” theme was in fact Obama’s, laid out in his April 2011 “Fact Sheet” entitled “The President’s Framework for Shared Prosperity and Shared Fiscal Responsibility.” [1] But whereas Senator Sanders’ puts the sharing where it belongs, in Obamaspeak the words “share,” “consensus” and “compromise” mean screwing the middle class -- “middle class” being America’s euphemism for the working stiff or, as is now more likely the case, the stiff out-of-work.

The Accounting

In principle, calculating a budget deficit and the resulting debt is a simple matter of measuring incomes versus outflows. The projected debt (or surplus) is the same calculation drawn out over a period years and based on assumptions about incomes and outflows in the future. The devil is in whose peas are counted, and it is here that the shell game is played.

There is no question but that the U.S. government over the past decade has overshot its revenues and is currently 14 trillion dollars in the hole. However, neither social security nor medicare are the cause of this deficit which, as we have said, is almost entirely the result of tax breaks for the wealthy and military spending.

Back in 2001, the Bush administration projected a budget surplus of 1.2 trillion dollars through FY 2004. However, at the end of that period the Administration revised its figures so as to show a “deficit estimate of $445 billion for 2004.” ([7] “Mid-Session Review” 30 July 2004, pg. 5.)

According to the Review, 49% of this swing was due to "economic and technical re-estimates," 29% was due to "tax relief," and the remaining 22% was due to "war, homeland security and other enacted legislation." (Mid-Session Review, p. 5.) Although it might take several passes to decipher the burble, the 49% “economic and technical re-estimates” translated into the fact that projected receipts based on the late 90’s dot com bubble failed to materialize. (Ibid., pg. 5.) This could be called the Greenspan Hole.

In other words, in the Administration’s own words, the Bush Deficit was caused by a downturn in the economy (which drove down tax revenues), tax breaks to corporations, investors, speculators and “High Net Worth Individuals” (which drove revenues down even further) and an 85% increase in spending for war.

The Bush Administration’s budget philosophy was trenchantly summarized by its own chart on page eight of the report entitled, “ENHANCED SECURITY -- RESTRAINT ELSEWHERE.”

“Restraint Elsewhere” meant “controlling entitlement spending” coupled with “restraint” on corporate taxes. The report concluded that “by continuing a policy course that promotes economic growth and job creation [through tax breaks] and by restraining [entitlement] spending ... we can maintain the deficit’s downward path and return the budget to economic growth and job creation, and by stronger footing in the years ahead. (Mid-Session Review, pg. 9.)

Nothing could be clearer. Bush’s wars were to be paid for by the elderly, the disabled and the sick.

Around the same time, the Congressional Budget Office published a fiscal analysis and ten-year budget projection which, give or take 10 billion here or there, arrived at the same general results. (CBO-Budget & Economic Outlook (August 2003) [8])

The CBO report noted that defense was the “fastest growing component of discretionary spending” (Ibid, pg. 5.) and that the so-called Bush Tax Breaks (the Jobs and Growth Tax Relief Reconciliation Act of 2003) had resulted in corporate income taxes which were at “their lowest level since 1959 [sic].” (Ibid, pp. 2-3.)

In November 2010, the New York Times published an interactive [9] which challenged readers to balance the budget through 2015 and 2030. The challenge was a cake-walk. The budget was easily balanced by taxing the wealthiest elements of society and reducing military spending from monstrously stratospheric heights to merely "over-the-top" levels.

More particularly, on the revenue side, the budget could be balanced through 2030 by: (1) restoring the estate tax to pre Clinton (i.e. Reagan) levels; (2) raising investment taxes to Clinton era levels; (3) allowing the Bush Tax Breaks to expire; (4) charging social security taxes on incomes over $106,000 and (5) imposing a special sur-tax on incomes over 1 million. On the outlay side, the budget was balanced primarily by: (1) reducing military spending to pre-Iraq and Clinton levels and by withdrawing down Afghanistan and Iraq troop levels to a total of 30,000. Not a penny of entitlements needed to be cut.

This weekend, Bloomberg News broke out the figures of the accumulated public debt. [10] Of the 14.3 trillion the Government owes, 4.6 trillion is owed by itself to the raided Social Security Trust Fund. The remaining 9.7 trillion is owed to holders of U.S. Treasuries; that is, to investors and foreign governments that have loaned the United States money. What was this money borrowed for? Since 2001, the U.S. has gone into debt for the following:

1.----Bush Tax Cuts for the Rich...............................1.6 trillion
2.----Interest Costs ...................................................1.4 trillion
3.----Wars in Iraq & Afghanistan..............................1.3 trillion
4.----Obama “Stimulus” Program...........................800 billion
5.----Obama “compromise” Tax Cuts for Rich........400 billion
6.----Medicare Drug Prescription Plan.................. 300 billion
7.----Financial Industry Bailout..............................200 billion

Those are the figures; and yet, from listening to noise emitted by the Fiscal Commission’s Alan Simpson -- the so called “Gang of Six” created by Obama to come up with solutions to the “debt problem” -- one would think that Medicare and Social Security were bankrupting the county. They are not.

What it all boils down to is that Obama is asking working families, the sick and the elderly to pay “their fair share” of benefits given entirely to others. That is simply not fair.

Obama Plays Abraham - The Slaying of Social Security

By law, social security revenues (“the payroll tax”) are deposited into an “off balance” trust fund. The idea is that government merely manages the monies that we the employers and employees of America have together paid into a fund for our own future benefit. Of course, all “public debt” (whether for roads, wars or parties on the Mall) is a debt we owe to ourselves; but social security is really, really the specially kitty of “we the people” in our old age.

In reality, nothing economic exists in isolation. Social Security funds are not stored under the mattress but are invested. In addition, payments to retirees during any current year are not drawn from a big jar of saved up cookies but from a cookie jar that is being paid into constantly by those who are working -- generation 1 being maintained by generation 2 which will be maintained by generation 3.

Given how the Social Security Trust Fund works, any “projection” can create a “deficit” by making negative assumptions about the future. One could assume that a Black Plague will occur and cut the number contributing payees in half. Alternatively, one could assume that the number of paying workers will be cut in half by a future depression or by the fact that U.S. corporations will have shipped massive numbers of jobs overseas, thereby increasing massive “structural unemployment.”

Further complicating matters is the fact that, against a howl of protest, the Government has been “borrowing” from the Social Security cookie jar in order to pay for other things. It then turns around and speaks with studied ambiguity of the need to “close the deficit” and “make social security solvent.” This sound-good, sound-bite is then used to “justify” cuts to social security.

The core fact is that Social Security is a stable pay-as you-go system. As Senator Sanders has pointed out, Social Security is solvent through 2030, at which time demographic changes might begin to slowly alter the balance. Obviously other economic problems can and do affect the system, but the solution lies in fixing those problems not “cutting back” on social security.

President Obama actually admits that Social Security itself has nothing to do with the deficit. Obama’s April 2011 budget Fact Sheet stated, “The President does not believe that Social Security is in crisis nor is [sic] a driver of our near-term deficit problems.” Well, if it is not part of the problem why should it be part of the “shared” solution? How “fair” is that?

Obama’s reply is that there are “long-term” challenges which are better solved now by “improving retirement security” while “not slashing benefits.” (Ibid) The so-called long term challenges are simply conjured up nightmare scenarios projected out to 2075. As for improving retirement security, the Administration achieves this wonderful goal, not by touching the benefits, per se, but by “adjusting” the cost of living allowances. [11]

The double-talk is exquisite. Social Security needs to be made secure. At the same time it is part of the shared sacrifice -- sacrifice which will miraculously not involve “slashing” benefits. How does this fiscal fantasia work?

At present, Social Security payments are adjusted upwards to keep pace with inflation, so that they remain constant in real terms. Obama’s fidgeting with the math in effect adjusts the payments so as that they decrease with each step up in the cost of living. For example, instead of rising to $15,525 in ten years, the average benefit would fall to $14,572. Benefits haven’t been “slashed.” In fact, technically, they haven’t been “cut” - they just stagnate downwards.

What is particularly cruel about Obama’s proposed cost of living index (CGI) is that understates the expected inflation in medical costs -- an expenditure that obviously hits retirees harder than others. In reality, Obama’s “securitization” of Social Security is a recipe for old age destitution.

And yet, in this weekend’s Weekly Address, Obama disengenuously stated, “I wouldn’t agree to some of these cuts if we were in a better fiscal situation, but we’re not. That’s why I’m willing to compromise. ... even if it’s not politically popular.”

This is the kind of talk that precedes slaying the first born. We are not in this “fiscal situation” on account of Social Security. Period. What Obama is saying is that, in order to get the Republicans to agree to taxing the rich, he is willing to take it out of the hide of the poor.

Just as the polls showed overwhelming support for a public option, they now show overwhelming support for progressive taxation of corporations and HinWis. But Obama is simply a Profile in Cowardice; and to say as much gives him the benefit of the doubt as to whose side he is on in the first place.

A Basket of (Rotten) Fiscal Fruits

When it comes to Medicare and Medicaid the situation is more complicated -- but only because the United States has opted for the most depraved and corrupted method of delivering health care. Politicians disguise the depravity with cunning confusion. When they talk about “Medicare/Medicaid and Social Security” they are simply mixing apples, nectarines and oranges hoping that no one will notice the difference.

Like Social Security, Medicare funded through beneficiary contributions. The difference between Medicare and Social Security is that only part of Medicare is funded on the basis of payroll taxes. The other parts are paid for by ongoing beneficiary premiums in what is, in effect, a government run insurance scheme.

Thus, if you paid into Social Security, your hospital costs (“Part A”) are automatically paid for. They do not count toward the deficit. However, physician fees (“Part B”) and the so-called drug benefit (“Part D”) are paid from the general fund and do count toward the general fund deficit. These expenditures are offset by additional premiums charged to retirees. Ideally, this component of Medicare should be “revenue” neutral; i.e. a kind of shared-risk budgetary pass-through. But because medical costs are soaring, the Government will have to charge higher premiums or control costs or make up the difference out of general funds.

Already for 2011 medicare premiums applicable to anyone will increase 20% from $94.60 to $113.80 per month. Since this premium is automatically deducted from social security benefits, the result is to wipe out the cost of living increase in social security payments.

Medicaid is an entirely different fruit altogether. Medicaid is a program for people who are handicapped or destitute and who, by category and definition, have not paid into any special fund. People on Medicaid may be morally entitled to assistance, but that does not mean that as a budgetary matter they have contributed to kitty. In a word, Medicaid is charity. Lumping Medicaid together with Social Security simply tilts the accounting toward alleged “insolvency” by counting a charitable pay-out program on the same sheet as a pay-as-you-go trust fund like Social Security.

Adding to the obfuscation, government reports habitually state that “non-discretionary” or “entitlement” spending is expected to soar “as” baby boomers retire. To say as much steps lightly over the fact that “entitlements” such as Medicaid and unemployment insurance have nothing to do with aging boomers.

It is true that, as baby boomers hit the intensive care units and as the cost of drugs and fees continue to sky rocket, the costs of Medicare (and Medicaid) will also sky-rocket. But to say as much is merely to look for a difference in repetition. Medicare pays for medical care. As the cost of medical care rises, Medicare has to pay more. Duh. The problem is not with “Medicare” but with “medical costs.” The solution is not to blame boomers for getting sick but to do away with price-gouging monopolies given to Big Pharma, Big Sure, and for profit hospitals.

The obvious solution was and remains a single payer system. Short of that, the next best solution is one that returns medical care to the regulated and non-profit basis it operated under for decades. Germany uses private insurance companies as a delivery mechanism for health care but it does so on a tightly regulated basis that puts the primary goal of care (not profit) first.

Putting aside the very small minority which passes itself off as the American Medical Association, most doctors and nurses in the United States are in favor of a single payer type overhaul of the entire medical care system. But the refusal to push for that overhaul was Obama’s first and foremost betrayal.

Continuing on that path, Obama’s “shared solutions” for Medicare consist in a befuddling maze of cost containments and rate changes, the centerpiece of which is to reduce IPAB’s allowances from 1.5% to .5% in 2018. This is GovSpeak for “deflect and duck.”

As part of Obama’s Affordable Health Care Act (ACA), Congress enacted an Independent Patient Advisory Board. The purpose of the Board was to take decisions about how much the Government would pay for health care services out of Congress’ hands. [12]

Historically, Congress has simply “thrown money” at doctors, hospitals and drug companies by paying whatever their going rate for services was. By creating IPAB, Congress admitted, as a matter of law, that it was helplessly subservient to special interests and could not be counted on to make a disinterested decision in the public’s interest.

The purpose of IPAB was to keep the rate of medical inflation to within 1.5% of GDP. If medical care charges exceeded that rate, IPAB could impose the necessary cuts in reimbursements to providers. These cuts would go into effect unless Congress rose to the challenge of coming up with a better way of skinning the cat.

Obama’s Grand Plan budget proposes setting the GDP benchmark lower, at GDP plus .5% in 2018 so that IPAB’s recommendations would kick in at lower levels of spending.

Furthermore, by law, IPAB cannot ration health care, raise revenues, increase Medicare premiums, deductibles, coinsurance, or co-payments, or otherwise restrict benefits or modify eligibility criteria. Thus, in theory, the Government’s medical expenditures will be controlled by controlling the costs of services rendered and not by rationing or by imposing higher premiums on retirees. In other words, the sacrifice here is supposed to be shared between doctors, hospitals and drug companies. So far so good.

However, the fact is that no one knows for sure if that will be the case. The Kaiser Foundation’s evaluation of IPAB’s operation states that it simply impossible to rule out an indirect impact on the quality or availability of care rendered. [13] Put bluntly, no one knows how many care providers will simply refuse to take Medicare patients thus putting added stress on an increasingly crowded system.

Late last week, Obama muddied matters further by stating that he was open to using Medicare’s purchasing power to negotiate drug prices. At the same time, he stated that he was “not adverse” to the idea of charging higher Medicare premiums to so-called “high income” retirees. The difficulty here is that the way the government defines “high income” usually ends up including a large segment of the middle class -- i.e. paying beneficiaries not on Medicaid in the first place.

The hidden potential effects of ObamaShare are simply the result of the policy disaster of ObamaCare. The patchwork of pseudo-automatic mechanisms for indirect control of costs is simply insanity. The foreseeable end result is that quality health care will be reserved for the uber rich either through providers “opting out” of the Medicare system or through beneficiaries “dropping out” because they cannot afford higher premiums. That risk, if it materializes, is an unacceptable sacrifice.

For all that, the basic budgetary facts remain the same. Medicare and Medicaid spending are not currently significant budget busters. Using IPAB to control anticipated future costs is unobjectionable in theory but when coupled to noises about premium increases it becomes yet another instance of unfair sharing.

Sound Bites versus Tax Bites

Lastly, there is the matter of “economic and technical re estimates.” Thus far, we have analyzed the budget mainly in terms of expenditures. But the balance of any budget depends as well on revenues and these are a function of overall economic activity. It is a truism that the more the economy hums, the more government coffers jingle; and this truism gives birth to the neo-liberal mantra that economic growth is stimulated by tax breaks.

The truism is true if but only if it can be assumed that the persons given the tax breaks will (or are required to) invest the gain in the national economy. Otherwise, investors (being investors) follow the yields wherever they may be; and if they go elsewhere they do not generate tax revenues here.

And yet, at least since Clinton, every administration has promoted the disastrous policy of incentivizing American corporations to export jobs and invest overseas. Because these corporations are registered in the United States their profits are included in the country’s GDP. But in fact their profits have nothing to do with the health of the American economy. The money is invested overseas; wages are paid overseas; profits are made overseas; the money is kept overseas.

“Globanomics” creates structural unemployment at home, diminishes consumer demand and, since overseas earnings are not taxed at all, diminish government revenues.

This in turn puts stress on entitlement programs such as unemployment benefits and Medicaid. It also creates a trade deficit. Put simply, the more the United States buys overseas, the more it spends dollars overseas. These dollars are then used by foreign governments to buy treasury bonds. While this “repatriates” the money it does so at a cost because every bond purchased must be repaid in full and with interest. This in turn increases the budget deficit.

Notwithstanding these evident facts, both Bush and Obama adhere to the same basic trickle-down philosophy. Thus, as the Bush 2005 budget spoke of a “policy course that promotes economic growth and job creation” through tax breaks, Obama’s 2011 “Fact Sheet” speaks of a “pro-growth economic strategy” which “lays the foundation for strong private-sector job growth.” This is the same quack and the same duck which requires the same feed.

It is thus hardly surprising that the President’s “Fact Sheet” section on taxes is a marvel of double-talk. In it, Obama calls on Congress “to undertake comprehensive tax reform that produces a system which is fairer, has fewer loopholes, less complexity, and is not rigged in favor of those who can afford lawyers and accountants to game it.” The goal of this loophole reform is "to lower the corporate tax rate for the first time in 25 years without adding to the deficit.”

Yes, “lower.” And there is absolutely no mention of what corporations owe to the country in return for this Grand Plan lowering.

The Fact Sheet section on taxes goes on to state that Obama “believes” we should not extend the Bush tax cuts for the wealthiest and then concludes by stating that “he also supports efforts to build on the Fiscal Commission’s goal of reducing tax expenditures ....” In other words, Obama’s revenue reform consists in lowering the corporate tax rate and reducing social security and medicare expenditures.

Aside from the stunning shell game, what is remarkable is the lack of detail. Whereas Obama’s “Fact Sheet” went into fairly complex detail about “securing” Social Security and “reforming” Medicare/Medicaid, it is astonishingly short on detail with respect to tax reform or reductions in military spending, choosing instead to serve up general blabber about cutting waste and closing loopholes.

Warped Mirror

As with individuals, a country’s budget is a reflection of society’s character. The image of American under the Bush-Obama budgets is that of a country that spends trillions on killing while feeding the rich and impoverishing the poor. This is the Sin of Sodom whose privileged revelled in a “prosperous ease, which did not aid the poor and needy.” (Ezekiel 16:49).

Apologists for the Administration may argue that Obama is simply trying to “tease out” some concession from Republicans on taxing the rich while offering “vague and technical” sacrifices to entitlements.

The problem with the apology is that neither the numbers nor anything Obama has said bears out that view. If anything is vague it is the alleged reform of the Bush's tax "relief" for the rich. The core fact remains that when all is said and done Obama does propose to cut back on social security benefits while, at the same time, retirees will have to co-pay more for medical care. As for the unemployed and disabled, they are already so “triaged-out” that they are only noticed when tripped over on the sidewalk.

The fundamental problem is that no one in Washington (except Bernie Sanders) is being honest. The way to balance the budget is to balance the social compact. This cannot be done with mathematical rhetoric which papers over the failure of trickle-down economics.

Millennia ago, on the eve of Athens’ demise, Thucydides wrote that the Athenians had “lost the habit of simple speech which is the mark of a noble man.” It will be said of Americans that, as they descended into the economic abyss, they had lost the habit of simple counting.

©Woodchipgazette, 2011

References

[1]http://www.whitehouse.gov/the-press office/2011/04/13/fact-sheet-presidents-framework-shared prosperity-and-shared-fiscal-resp

[2] http://www.latimes.com/business/la-fi-0716-petruno debt-20110716,0,1614179.column

[3]http://www.voanews.com/english/news/asia/east pacific/China-Urges-US-to-Protect-Investors-as-Debt Ceiling-Looms-125556978.html

[4]http://www.politico.com/news/stories/0711/58942.html

[5]http://sanders.senate.gov/newsroom/news/?id=aa0f5904 c400-415e-aaff-86ca62fa2b3b

[6]http://www.whitehouse.gov/the-press office/2011/07/16/weekly-address-unique-opportunity secure-our-fiscal-future

[7]http://www.gpoaccess.gov/usbudget/fy05/pdf/05msr.pdf

[8]http://www.cbo.gov/ftpdocs/44xx/doc4493/08-26 Report.pdf

[9]http://www.nytimes.com/interactive/2010/11/13/weekinreview/deficits-graphic.html

[10]http://www.businessweek.com/ap/financialnews/D9OHLRBG0.htm

[11]http://www.huffingtonpost.com/rj-eskow/how-much-would a-white-ho_b_891655.html

[12]http://healthpolicyandreform.nejm.org/?p=3478

[13]http://www.kaiserhealthnews.org/Stories/2011/May/09/ipab-faq.aspx

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Confining Manning & Falling into the Outer Darkness

For a brief moment, December’s WikiLeaks scandal caused us to remember the forgotten Private Bradley Manning who was arrested in June 2010 and who, to this very day, languishes in a perpetually lit white box, forbidden virtually all sentient stimulation or social contact.

In February, Manning’s lawyer announced that his client’s condition was “deteriorating” and this past weekend a few small groups gathered to protest the conditions of his confinement. Although the foreign press has reported on Manning’s isolation, the U.S. press has by and large ignored the matter except to report on the firing of State Department spokesman P.J. Crowley who had dared to remark to a small academic audience that Manning’s confinement was “counter-productive and stupid.” Crowley’s failure of deference was countermanded by President Obama who stated that the Pentagon had assured him the conditions of Manning’s confinement were “appropriate and meeting our basic standards.”

Spokesmen for the Marine Base at Quantico, Virginia, where Manning is being held, pointedly deny that he is denied reading material and state that he is being treated no differently than other so-called high security prisoners. But to those familiar with so-called “supermax” confinements, being used in state and federal facilities since the 1990’s, the denials smack of officially crafted evasions.

The question in reply becomes: how are those other high security prisoners treated? The answer is that for two decades, extreme isolation and depersonalization have been standard and routine features in the American Gulag. The effects of these regimens both on individuals and on constitutional standards of justice are devastating.

Supreme Court Justice Kennedy summarized supermax conditions as follows: “Incarceration at OSP is synonymous with extreme isolation. ... It is fair to say OSP inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact.” (Wilkinson v. Austin (2005) 545 U.S. 209, at p. 214.)

Kennedy’s synopsis merits a pause for actual thought. At least since the days of Aristotle, it has been recognized that Man is both a social and a sentient animal. (Politics, Bk I; De Anima, Bk II; De Sensu, Bk. I.) The essential importance of sense perception was summarized by the scholastic philosophers as, nihil in mente nisi prius in sensu (there is nothing in the mind that was not first in the senses). If there are no sensory stimuli, there can be nothing in the mind. Thus, the mind of a person confined to a box will ‘self-stimulate’ with what is already lodged in his brain, reacting to and within itself alone -- which is precisely what constitutes being crazy.

Similarly, just as the mind requires sensory stimulation, the human heart requires affection. Again Aristotle had it right when he said that all society was comprised of levels of friendship. A smile, a hand-shake, a pat on the back, an embrace are what anchor us to the reality of secure places within the common good. Without that external anchoring we are left to drift on a sea of doubts, fears, angers and paranoias. Without the love of a parent, wife, child, friend or faithful doggie, the human heart simply atrophies and dies.

This is nothing new. Speaking of ‘rehabilitation’ through isolation, Alexis de Tocqueville wrote that uninterrupted solitary confinement “devours the victim incessantly and unmercifully; it does not reform, it kills.” (Du Systeme Penitentiaire Aux Etats-Unis Et De Son Application En France (1833).) Observing New York’s Cherry Hill prison in 1842, Charles Dickens wrote of the “immense torture” of solitary confinement “which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow-creature.” (American Notes (1842) pp. 118-121.)

In re Medley (1890) 134 U.S. 160, Justice Miller reviewed the “very interesting history” of solitary confinement. In the nascent United States, the “experiment” was first tried at the Walnut-Street Penitentiary, in Philadelphia, in 1787. “The peculiarities of this system were the complete isolation of the prisoner... so arranged that he had no direct intercourse with or sight of any human being....” (Id., at p. 168.) However, it was soon discovered that even after a “short” confinement prisoners fell “into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide....” (Ibid.) Similar experiments were tried in England where persons condemned to hang were kept in solitary confinement. But “public sentiment revolted against this severity” and the additional punishment of solitary confinement was repealed. (Ibid.) The clear implication was that the Court agreed but, unfortunately for legal precedent, Medley’s sentence was reversed on other grounds.

Nevertheless, public sentiment in the United States was not that different from England and, for most of the last century, solitary confinement was recognized as a form of severe punishment to be imposed seldom and restricted in duration. That policy began to change in the 1990’s and, with the institution of the National Security State, detention once again became the gateway to insanity.

Prisoners in Guantanamo tried suicides in such numbers that a psychiatric ward had to be constructed. Pictures of inmates in supermax show them just screaming their lungs out in their iso-boxes. Those who wish to inform themselves of the grim and grotesque details can Google. The simple truth is that if sentient sociality is the essence of being a human being, then anything which destroys that essence is a form of killing.

If Justice Kennedy were actually to contemplate what he himself wrote he would know that solitary confinement is an excruciating living death which is more vile, more vicious and more cruel than a death which puts an end to suffering once and for all.

What is being done to Bradley Manning is a terrible, terrible thing. Those who are doing it are a disgrace to the uniform and we who tolerate it are become moral midgets who do not deserve and, in fact, will not long live under the rule of constitutional law.

This is not merely a question of acting ‘humanely’ -- although one is increasingly stressed to think that anything ‘human' can be regarded as decent. Nor is it just a question of individual rights -- America’s perpetual obsession. The sado-barbarism inflicted on Manning is a direct wound on the very organism of our social compact.

With good reason, most of the Bill of Rights is devoted to criminal justice, because the bottom line of any civilization is precisely how it treats the least of its members. The Bill imposes standards of decency, fair play and restraint on investigations before trial, on proceedings during trial and on punishment thereafter.

In this way, the Constitution embodies our determination as to ‘how we will be’ and ‘what we are about.’ It is our political faith; our practice today for the hope of tomorrow.

We know, in the inimitable words of Hobbes, that life is “nasty, brutish and short.” In myriad contexts men have written of the jungle, the outer darkness and the tuhou buhou. But it is the Word -- and law is nothing but words -- that extracts us from that darkness. The English legal historian, Theodore Plucknett wrote that, “Out of all the confusion and disaster of the middle ages, there arose a uniform cry for law, which should be divine in its origin, supreme in its authority, rendering justly to every man his due.” (Brief History of the Common Law, (1929), T.Plucknett, Cambridge University Press, pg. 59.)

Plucknett was an admirer of the U.S. Constitution which, he said, was a fundamentally medieval document in its conception of law. To put it in medieval terms, the Constitution is the parable which resurrects us from the chaos of unordered appetites and passions. We live within its alabaster walls or we don’t.

Thus considered, the Bill of Rights is not just a guarantee of goodies to individuals; it is a confession amongst ourselves as to the political reality we wish to live and commit ourselves to living. We do this for our sakes because it establishes the kind of creatures we are.

What we are is what we recognize one another to be. Each of us, alone, is nothing but a configuration of flesh and bone, as much a mere thing in the vast cosmos as anything else. It is only in relation to the reactions of other sentient beings (be they humans or animals) that the ‘I’ comes into focus and shape. ‘I’ simply does not exist without ‘You’.

What we recognize amongst one another, most basically, is that everyone one of us is weak and prone to error. As is said of Judgement Day, “And what of me when the just are mercy needing?” And yet everyone one of us hopes to be treated with more than we deserve. In civilized societies, justice always consists in giving man more than is his actual due. In the Anglo-American legal tradition this more is called ‘due process’ and it consists in treating a man fairly and with dignity simply because he is one of us and we are he.

The Bill of Rights is not concerned with benefits but with process: how do we treat ourselves when the going gets rough? Of course, the simple answer is: with consideration and dignity. But the provisions of the Bill of Rights go further and specify what that dignity and consideration require. Because supermax regimes destroy the human mind they necessarily violate constitutional standards at each stage of the justice system.

The cases of John Walker Lindh and Jose Padilla illustrate the destructive effects of sensory and social deprivation on our Fifth Amendment right against coerced confession, on our Sixth Amendment right to a fair jury trial and on our Eighth Amendment guarantee against cruel and unusual punishments. Both cases betoken what is being done to Bradley Manning and illustrate the less than heroic response of the judiciary to what has become a system of institutionalized sadism.

As will be recalled, Lindh was the ‘American Taliban’ who had gone to fight in Afghanistan’s civil war. In October 2001, he became involved in a fire-fight with U.S. troops upon their invasion of that country. Lindh was captured and held in brutally barbaric conditions which can be chalked up to the viscitudes of war. On discovering that he was an American, he was ordered transferred to an on ship brig.

In preparation for his transfer, Marine guards stripped Lindh of his clothes, blindfolded him, bound him with duct tape to a stretcher and placed him in a metal shipping container” without insulation or heat. (Defense Memorandum, United States v. Lindh (E.D.,Va 2002)212 F.Supp.2d 541.) Lindh was denied medical attention to remove a bullet lodged in his leg since the uprising. He was held incommunicado and interrogated by military personnel. Nine days later he was delivered into civilian custody where he was interrogated by the FBI. (Ibid.)

One of the issues at Lindh’s subsequent trial, for aiding and abetting an enemy of the United States, was whether the F.B.I. had given him adequate Miranda warnings prior to eliciting self-incriminating statements. After the district court indicated in chambers that it felt the advisements were adequate, Lindh accepted an offer of 20 years prison.

Miranda has come to occupy a talismanic position in America’s perennial ‘kulturkamp’ (so-called). It is generally viewed as a legal technicality that ‘favors criminals.’ In actuality, the rule is designed to ‘save’ the confession under a tissue of legality on the unsubstantiated assumption that a warning can “balance the playing field” (hear! hear!) in what is otherwise an inherently coercive situation. (Miranda v. Arizona (1966) 384 U.S. 436, at pp. 458, 467, 468, 478.)

The rule that any in-custody interrogation is “inherently coercive” has its genesis in Bram v. United States (1897) 168 U. S. 532. In that case, Bram was arrested on suspicion of murder. He was stripped naked and brought before the Chief Inspector who recounted in a commanding but avuncular fashion what an eye-witness had said. Bram fatally replied, “he could not have seen me from where he was standing.”

On appeal, the Supreme Court expressed the view that Bram’s confession was involuntary and inadmissible because “it must necessarily have been the result of either hope or fear, or both, operating on the mind.” (Id., at p. 563.) The Court sympathetically cited English authorities for the rule that “[a] confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure ... its effect upon the mind of the prisoner...” (id., at p. 543) and “will not suffer a prisoner to be made the deluded instrument of his own conviction” (id., at p. 547).

Subsequent cases tended to obscure Bram’s radical implications. In Brown v. Mississippi (1936) 297 U.S. 278, the Court invalidated a confession obtained by whipping a Negro as he was repeatedly hung by his neck; and, in Brooks v. Florida (1967) 389 U.S. 413, the Court struck a confession obtained by confining the defendant in a barren cage for two weeks on a daily ration of thin soup and 8 ounces of water. Brown and Brooks fall into the “of course” category and are basically insignificant except as evidence of ongoing official depravity. Bram, on the other hand, points to a pristine and incisive logic: a person in custody is by definition ‘not free’ and if he is ‘not free’ then anything he says or does simply cannot be ‘free and voluntary’. If it is not free and voluntary, then it violates the Fifth Amendment.

We can perhaps wink, nod and make excuses in the average flat-foot situation in order to make use of the golden apple of prosecutorial desire. But it is simply a grotesque sham to maintain that a Miranda warning can rectify nine days of immobilized confinement, as in Lindh’s case, or nine months of solitary confinement as in Padilla’s. Private Manning’s detention in helpless dependency, stripped of social contact and sensory stimulation, has irreversibly violated our Fifth Amendment promise to ourselves.

Padilla’s case, foretelling Manning's, also illustrates how solitary confinement hollows out our Sixth Amendment guarantee of a jury trial.

Padilla, an American citizen, was first arrested as a so called ‘material witness’ to an alleged terrorist plot. After one month of being held incommunicado as a material witness, President Bush sought to preclude any legal challenge to his ongoing civil detention by designating Padilla an ‘enemy combatant’ and having him transferred to a Navy brig.

There, Padilla was subjected to an improved and cleaned-up version of Lindh’s detention. His cell measured nine feet by seven feet. There was a toilet and sink. The steel bunk was missing its mattress. He had no pillow, no sheet, clock, calendar, radio, television, telephone calls or visitors. The windows were covered over and meals were slid through a slot in his door.

Padilla was subject to ongoing sleep deprivation. For most of his captivity, he was unaware whether it was day or night, or what time of year or day it was. When he was brought outside for exercise, it was done at night. His disorientation from not seeing the sun was exacerbated by his captors’ practice of turning on extremely bright lights in his cell or imposing complete darkness for durations of twenty-four hours or more. Padilla was routinely put in shackled stress positions for hours at a time. The temperature of his cell was manipulated, making his cell extremely cold for long stretches of time.

Padilla was subjected to exceedingly long interrogation sessions and would be confronted with false information, scenarios, and documents to further disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault him.

Padilla was treated like an it. When taken out of his cell he was subjected to a ritualized routine of impersonal shackling and sensory deprivation by three or more handlers. Without embarrassment the Government allowed a reporter from the New York Times to witness the handling. Deborah Sontag reported:

“Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall.”

It was later revealed that Padilla’s depersonalizing was so total that he was required to sign his name as 'John Doe.' Members of the brig staff told Padilla’s lawyers that he became so docile and inactive that his behavior was like that of “a piece of furniture.”

According to psychiatrists who examined him, Padilla toggled between a state of absolute terror and total numbness. In a classic ‘Stockholm Syndrome’, he became distrustful of his own attorneys and identified with the Government. When his lawyers had done a good job of cross examining an FBI agent, Padilla got angry and said that the proceedings had been "unfair to the commander-in chief." Padilla, the psychiatrists concluded, had been “deconstructed and reformed.”

Padilla’s lawyers protested that it was impossible to prepare a defense with a client who had been so deformed. The motion was denied. The court ruled that Padilla could sue the government for emotional distress or whatever but otherwise his case was proceeding to trial. (United States v. Padilla (April, 2007) U.S.D.C. (So.Dist. Florida) No. 04-60001-CR-Cooke.)

Although the defense arguments suffered from being narrowly drawn so as to fit within various precedents, the court’s ruling simply played dumb to the broader and more fundamental issue that was behind the defense claim.

It is axiomatic that the right to a jury trial guarantees more than a stage setting. It envisions a particular kind of trial including a variety of features not specifically mentioned in the Constitution. (See e.g. United States v. Cronic (1984) 466 U. S. 648, 656.)

The Sixth Amendment says nothing about the presumption of innocence or proof beyond a reasonable doubt, but there is no doubt that the kind of trial “envisioned” in the Constitution includes those requirements. (In re Winship (1970) 397 U.S. 358.) A ‘jury trial’ also includes the right to the assistance of counsel and conversely the opportunity to assist counsel. (Gideon v. Wainwright (1963) 372 U.S. 335, 344.) The right to counsel also ‘envisions’ the absolute right to act as one’s own counsel should one choose to do so. (Faretta v. California (1975) 422 U.S. 806.)

Everything a ‘jury trial’ is supposed to be, is rendered meaningless if the defendant is reduced to being a stick of furniture. While Padilla's mistreatment was beyond extreme and while one can hope Manning is not being subjected to such depraved sadism, the fact remains that since the days of Cherry Hill it has been known that isolation alone "devours the victim incessantly...and kills." Except as a transparent farce, a jury trial simply cannot take place when a human being, because he was treated as less than a human being, has been turned into a breathing turnip.

The villainy of such a degraded performance masquerading as justice is that, upon his inevitable conviction, Padilla was returned to his solitary cell to continue the torture of isolation for another 20 years. In this way violations of Fifth and Sixth Amendments lead inexorably to violations of the Eighth which prohibits “cruel and unusual punishment.”

It is obvious that the Eight Amendment pledges us to refrain from the rack, the screw and the nail. However, the Supreme Court has also recognized that cruelty takes less tangible forms.

In Weems v. United States (1910) 217 U.S. 349, the Court held that it violated the Eighth Amendment to sentence a defendant to “confinement in a penal institution for twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even in the family council.” (Id., at p. 366.)

In Trop v. Dulles (1958) 356 U.S. 8, the Court again focused on the concept of so-called ‘civic death’. Six justices agreed that “use of denationalization as a punishment is barred by the Eighth Amendment... [because]... the total destruction of the individual's status in organized society... is a form of punishment more primitive than torture....” (Id., at p. 101.)

Any fool can see how Weems and Trop prohibit inflicting social and sentient death on a prisoner. However, when it comes to supermax regimens, today’s high court draws a blank.

In Turner v. Safley (1987) 482 U.S. 78, the Court ruled that restrictive procedures within prison were permissible if they were "reasonably related to legitimate penological interests." (Id., at p. 89.) It did not take long for prison authorities to figure out their cue. By the early 1990’s prisons in the United States began instituting “supermax” regimens under the putative justification that “prison safety” required extreme isolation of “dangerous” individuals.

It is indisputable that prisons house dangerous people and require a commensurate discipline in their administration. But it is equally important to understand how words themselves can run riot and lead us to where we ought not to be.

It is true that certain gang leaders who were running murderous criminal operations from within prison were ‘dangerous’. But it is a subtlety apparently beyond most jailers and judges to figure out that a mail-bomber like Ted Kazynski, while he was dangerous on the loose, ceases to be dangerous once confined behind bars. At that point, it is gratuitous cruelty to stick him into a box on what amounts to mere playing with a label. And yet, on the basis of precisely that facile and stupid labelling, ordinary prisoners are routinely classified as dangerous and stuck into isolation boxes where they slowly go crazy.

A more dangerous perversion of thought is also at work. In Turner, the Court subtly shifted its focus from the safety of society to the safety of prisons. That shift inevitably ended up circumscribing the Constitution within prison walls thereby constricting what the Constitution means.

We must return to the beginning and remember that a constitution such as ours defines the limits of our social universe. The limits and nature of the Constitution are co-terminous with the limits and nature of our society. Prisons, by contrast, are mechanisms within society that are instituted for the safety of society. They are parts of the social picture that should conform to the broader constitutional context within which they exist. When the focus becomes prison safety, the context has been reduced. The society-at-issue is prison society and constitutional issues get constricted within that reduced sphere.

Precisely that type of constitutional constriction took place in Overton v. Bazetta (2003) 539 U.S. 126, wherein the Court followed up on Turner and ruled that because the very purpose of prison was to impose civil disabilities on persons convicted of crime, the curtailment of an inmate’s visitation privileges was not ipso facto unconstitutional. It was not long before Beards v. Banks (2006) 548 U.S. 521 followed through and upheld supermax confinements on the ground that “rehabilitation is a valid penological interest, and deprivation is undoubtedly one valid tool in promoting rehabilitation.” (Id., at p. 548, Stevens, J. diss.; & p. 531, Maj. Opn.)

The ‘rehabilitation’ at issue consisted of a system of gradient and increasingly severe forms of restrictive confinement for prisoners who were disruptive, violent or simply deemed a ‘threat’ to prison order without any actual misconduct. At all levels of restriction, inmates were confined to cells for 23 hours a day without television or radio. At the highest level inmates were allowed one non-contact visit a month but otherwise no phone calls and no reading materials or personal photographs.

Prisoner Banks, filed suit claiming that his First Amendment rights were infringed. Applying the Turner-Overton standard, and ignoring In re Medley, the Court ruled that, relying on their professional judgement prison officials, had “reached an experience-based conclusion that the policies help[ed] to further legitimate prison objectives.” (Banks, at p. 533.)

The deprivation technique of rehabilitation came up again in Wilkinson v. Austin (2005) 545 U.S. 209 wherein it was argued that Ohio prison authorities were committing inmates to supermax segregation without a sufficient due process hearing. After summarizing the effects of isolation and noting that any claim of cruel and unusual punishment was not technically before it (id., at p. 218) Justice Kennedy held that “courts must give substantial deference to prison management” and Ohio's hearing procedures were ”adequate to safeguard an inmate's [due process] interests.” (Id., at p. 229.)

Wilkinson illustrates the forbidden end of Turner’s subtle shift in focus. In Weems, the Court had no difficulty imposing society’s standards on the prison regimen. Whatever anyone might say about ‘prison safety’ or ‘deference to prison management’ putting someone in chains and depriving him of all civil contact was socially unacceptable. In Wilkinson, the inversion was complete: the Constitution will mean what prison procedures require it to mean.

Wilkinson also closed the circle. If we can begin by treating a human being as the instrument of his own undoing, we can end by twisting him into the instrument of his own punishment. But whatever the tissue of excuses, supermax regimens are nothing less than judicially sanctioned state sadism. Sadism after punishment violates the Eight Amendment; sadism during interrogation violates the Fifth, and sadism as a prelude to trial violates the Sixth.

American jurisprudence has sunk into a degenerate senescence which quibbles over expediencies while ignoring fundamentals. The issue is not whether Banks or Manning have been deprived of reading materials. The issue is whether the Constitution allows anyone to be deprived of his humanity.

To return to our point of departure -- as Justice Brennan once stated in less degraded times, “The true significance of [cruel and unusual] punishments is that they treat members of the human race as non-humans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the [Eighth Amendment] that even the vilest criminal remains a human being possessed of common human dignity.” (Furman v. Georgia (1972) 408 U.S. 238, 272-273.)

Justice Kennedy knows exactly what supermax does to an individual. He summarized it with an incisive brevity worthy of Occam’s Razor. He and the remainder of the high court simply don’t care.

Neither does the judicial system as a whole. It is hardly surprising that just this past month, Padilla’s civil suit against the Government was summarily dismissed on the grounds that it would inconvenience officials and present a “spectacle” embarrassing to the Government what with “a convicted terrorist, summoning America’s present and former leaders to a federal courthouse to answer his charges.” (Lebron et al. v. Rumsfeld et al. (Feb. 22, 2002 U.S.D.C., So.Car.) Case No. 2:077-410-RMG.) Imagine that! The infamy of seeking to hold leaders accountable!

The true and damning “spectacle” is the one we shamelessly display for all the world to see. From soldiers in the field to interrogators in basements to academics and technicians at their consoles to cabinet secretaries who quarterback torture, our official culture has become a festival of ghouls. And presiding over this freakshow is a High Court of Deference that bows down to the ‘management’ decisions of some lowly warden and a Commander in Chief who declaims against “bullying” while allowing a human being in his ultimate charge to be turned into a stick of furniture, because he has been assured it is “appropriate” and in conformity with our “basic standards.”

Ours is a world that has sunk back into the confusion and disaster of a Dark Age. It is not a world of law, but of tuhou buhou where words are the mere accompaniment to action. Worst of all, the American obsession with individualized self has blinded it to the fact that our “basic standards” are not some sort of alms we allow them and those; they set the level and character of our daily existence. The spectacle presented by a paltry hundred protestors outside Quantico was that of a nation which expects of itself and for itself no more than brutality and brutalization.

We must reclaim our self-worth by treating the least part of us as worth respect. Else we are lost.

©Woodchipgazette, 2011

Earth & Sky - An Historical Obituary for Bishop Ruiz of Chiapas.

Samuel Ruiz Garcia, bishop emeritus of Chiapas, died last Monday at age 87 of cardio-pulmonary complications. In the United States, Ruiz was eclipsed by the more Romantic image of Subcomandante Marcos, the poster-boy guerilla of the Zapatista Liberation Army (EZLN). However, Ruiz’s socio-religious mission was more fundamentally radical and, among the Indians themselves, he is remembered with sorrow and gratitude.

Ruiz joins a long procession of Catholic priests and prelates who fought on behalf of the Indians for the humanity of us all. His efforts to enfranchise the indigenous Maya communities was rooted in a Christian option for the poor without which the present day struggle for “liberation” cannot be understood. The mandate of that option is at the core of the Ibero-Indian encounter and exists to provoke the torpor of the First World.

As everyone knows, Queen Isabel of Spain financed Columbus’s mission to the New World in order to evangelize whatever peoples might be encountered. But within years of 1492 the worser beasts of man’s nature had annihilated the Indians of Hispaniola and Spanish settlers were hard at work enslaving the natives of Venezuela.

The Spanish friars were appalled and, on 21 December 1511, the Dominican Antonio Montesinos pronounced his famous Advent Sermon:

“By what authority have you committed such detestable wars against these peoples who were inhabiting these lands so prosperously and pacifically? ... Are these not men? Do they not have rational souls? Are you not obliged to love them as you love yourselves? ... Do you not understand? Have you no senses? How can you subsist in such a deep and lethargic sleep?"

He then pronounced judgement,

“Know then that you are all in mortal sin and in sin you live and in sin will die on account of the cruelty and tyranny with which you abuse these innocent people.” [1]

Montesinos took his campaign to Spain and in 1512 the Crown decreed the Laws of Burgos which imposed a trusteeship (“encomienda”) on the Spanish settlers making them responsible individually and collectively for the material welfare, education and religious salvation of the indigenous people. [2]

Needless to say, the settlers soon found ways to abuse the encomienda so that within 20 years the same Dominicans who had proposed the system fought to abolish it.

But as important as its immediate success was the theological impetus behind the reform. In Montesino’s words inhere all the sum and substance of the Church’s present day “Liberation Theology” and of its utopianism throughout the centuries. [3]

Three words are key: authority, soul, sin.

The bedrock of Montesino’s denunciation was the premise that the Indian had a soul; i.e. he was a human being entitled to all the natural rights and spiritual benefits human welfare needs and human dignity desires. If seeming humans do not have souls then they are reduced to exploitable objects. Today we might prefer to speak of “empowerment” and “depersonalization” but the reality being spoken is the same. Either there is a law that applies to all nations or there isn’t; either only our tribe is human or we exist in the “other.” It is a crucible question.

Whatever side they were on, the Spanish understood that this was the most fundamental issue of all and, throughout the 16th century, they threw themselves into the fray. Jesuits like Francisco Vitoria [4] and Francisco Suarez revived Greco-Roman concepts of natural rights, read them into Scripture and applied them to the New World. It is to them that we are directly indebted for our present day ideas of international humanitarian law. [5]

In the end, King Charles V prohibited the enslavement of the Indian (1530) and Pope Paul III reaffirmed (1537) that Indians had souls, were entitled to the Sacraments, including marriage, and were, in short, citizens. [6]

The Pope’s decree went further and denounced “the enemy of the human race, who opposes all good deeds” and who had inspired his minions to claim that the Indians “should be treated as dumb brutes created for our service, pretending that they are incapable of receiving the Catholic Faith.”

But that was not the end of it. If the natives had souls and had been living peaceably among themselves (as noted by Pope Alexander V in 1493), the next question was: by what authority were the Spaniards setting foot on these American lands at all? [7]

The battle over “authority” was taken up by Fray Bartolomé de las Casas, Ruiz’s first predecessor as Bishop of Chiapas. Politically correct academics have completely misunderstood what Las Casas was about. Taking his reports of cruelties at face value, they have sought to fit the events into the mold of Uncle Tom’s Cabin. This distortion satisfies three urges: a paternalistic desire to rescue the Indian (a sentimental variant of the white man’s burden), indulgence in Anglo-American prejudice against the Spaniard or, alternatively, a resentful victimology against all Europeans.

Las Casas never published a ‘history’. He wrote a brief, which Cromwellian spies got ahold of and published by way of propaganda salvo to justify the English ‘liberation’ of Jamaica -- a liberation which immediately resulted in the importation into Jamaica of thousands of African slaves. [8]

As pointed out by Kenneth Pennnington, Las Casas was a lawyer and he was making an argument in the King’s council against Spanish authority in the New World. Under medieval law, unjust war acquired no rights. In order for war or conquest to acquire lawful possession it had to be waged on just provocation against occupiers who themselves had committed some wrong. If on the other hand, the original occupiers had been “wholly innocent” then conquest was unjust and no authority was thereby acquired. [9]

It was a stunning gambit. Las Casas was telling the King that his writ did not run to America. But if not the King’s, whose writ then? Las Casas was clear: the Church as trustee (encomendero) for the Indian over all the Americas.

It has to be remembered that, in this critical and transitional period, the nation state had not yet been fully birthed. The world was governed by “competent authorities” each in their own sphere. Church versus Crown had been at it for 1000 years and Las Casas was going for the ultimate gold.

As good lawyers do, Las Casas ‘adjusted’ his facts to the legal theory of his case. Not only was the Indian ‘wholly innocent’ but the Spaniard was ‘entirely sinful’. Thus had it to be if the Church were to establish a Brave New Theocracy -- the Civitas Dei -- in the New World.

To say as much is not to deny that abuses and cruelties were committed; it is only to say that a very mixed reality was turned into a legal polemic.

This is also not to say that Las Casas did not really care about the Indian -- he most emphatically did. It is rather to say that he was not fighting for a species of charity but for a broader more fundamental concept of the state.

Las Casas did not win his brief, but the ‘consolation’ prize was nothing to sneer at. Montesinos and Las Casas established a moral benchmark that power lacked legitimacy in direct correlation to its oppression of the weak.

Throughout the colonial period, church radicals would invoke this standard which ultimately became known as the Church’s “preferential option for the poor” and a key tenet of 20th Liberation Theology.

It bears emphasis that when Montesinos or Las Casas coupled 'authority' with 'sin 'and 'tyranny' they were not speaking solely in individual terms. They were indicting collective action and social constructs that denied reciprocity of rights and aspirations to an entire class of people.

A sort of stupid Voltairian literalism blinds us to what our ancestors were saying. Although the talk is of souls, sacraments and sins the subject matter was what it is today: human dignity within an ordered system of social justice.

Nevertheless, in the intervening 500 years, the record of the Church as a whole was nothing if not equivocal. It appears that the clergy identified with whichever flock they happened to be closest to. The hierarchy in the cities and capitals identified with the oligarchical establishment; the clergy in the fields and villages with the poor and the oppressed. It could be said, very generally, that the urban hierarchy proved itself as obscenely reactionary as the clerical “Jacobins” were heroically humanistic.

Among the radicals were the likes of Bishop Vasco de Quiroga of Michoacan who established (1536) indigenous communities modeled on Thomas Moore’s Utopia and later 18th century Jesuit millenarians who revived the agenda with the ‘Reductions’ of Bolivia and Paraguay (popularized by the movie The Mission). [10], [11]

Mission in Paraguay

Sometimes clerics got too radical. Although Mexico’s post-Revolution, pro-atheist ruling party, the PRI, did its best to gloss over the fact, the twin heroes of the Mexican War of Independence, Hidalgo and Morelos, were both priests who had resorted to the sword.

It was precisely that resort that had the Vatican worried. Although the “preferential option for the poor” became official Church policy in 1983 [12], the Vatican’s condemnation of Liberation Theology was made on the ground that if the sins of the rich were interpreted collectively so as to give rise to a postulated endemic class conflict then the Church’s “preferential option” became simply a code word for a resort to violence. [13]

The worry arose precisely because the ‘sin’ of the system is so utterly obscene. The poverty is so desperate, so revolting, that is almost impossible for a man or woman of good will not to feel that opting for the poor impels a resort to arms, like Jesus’ outrage at the Temple money changers or Yaweh’s collective punishment of Sodom’s “prosperous ease, which did not aid the poor and needy” (Ezekiel 16:49).

How is class war avoidable if, as Paul III wrote, the oppressors are the minions of the enemy of the human race?

The dilemma got catalyzed in Yucatan and Guatemala, because the history of the Maya is among the worst in Indo-Ibero relations.

After 12 years of bloody warfare, the Spanish conquered most of Yucatan in 1541. Almost immediately the settlers began to enslave the Indians and just as immediately the Franciscans began their abolitionist agitation resulting in yet another royal decree (1549) prohibiting slavery in the peninsula.

But exploitation ensued by other means triggering uprisings in 1610-33, 1636-44, 1653, 1669, 1670. The principal grievance was the burden and abuse of fees, taxes and conscript labor (‘repartimiento’) -- the same types of abuses that led to the French Revolution.

Arriving in 1722, and moved by the Maya’s pitiful complaints, Bishop Juan Gomez Parada initiated a successful campaign to reform and mitigate the servitudes. In 1728, beloved by the Indians whom he had defended, Parada died. Within years the former harsh conditions were reimposed triggering another revolt in 1761 which was brutally suppressed. [14]

In 1847, the Yucatecan Maya rose up again, setting in motion the 75 year, intermittent "War of the Castes." For a while, the Maya almost took over the entire peninsula but, in 1901, the Mexican Army launched a major campaign and re-established national control. [15]

Following the 1910-1920 Revolution, Mexico’s corporatist, quasi social-democratic government adopted a new approach aimed at incorporating the Maya into the broader economy and national life. Of key importance was the teaching of Spanish. The Maya didn’t bite. From their perspective, the “Mexican” government was just as foreign as the “Spanish” and being “incorporated” was noting they were interested in. The result was a “benign oppression” under the banner of reform and rehabilitation which was simply a modern, secular version of forced conversion.

Because forced conversions of any sort treat the subject of rehabilitation as an object they are heteronomously self-defeating. Even if subjectively well intentioned, they only compound the underlying oppression.

It was the same ol’ same ol’. The ultimate result of the PRI’s interventions was the promotion of industrial agriculture at the expense of campesinos and the fragmentation of the Maya into those who got coopted into government policies and those who resisted being dispossessed from their communal land holdings (ejidos).

It was into this historical and theological “dialectic” that Ruiz walked as very young newly appointed bishop in 1960.

Ruiz came from Guanajuato, one of Mexico’s more conservative and Spanish cities. Appointed by Pope John Paul II, he himself was theologically conservative. By his own account, he was radicalized almost over night seeing Indians used as beasts of burden and at the same time being prohibited from walking on sidewalks.

However, Ruiz rejected the paternalistic paradigm. He began the fight against material poverty by recognizing the freedom and dignity of the Maya to express his Catholic faith in an “autochthonous” (self-originating) indigenous manner. (Ruiz, Indian Theology.) [16]

Open Air Chapel in southern State of Oaxaca

This was not a new idea. Throughout southern Mexico there exist the remains of vast open air chapels constructed because, for the Indians, it made no sense to worship other than on earth under open skies. The earliest 16th century missionaries had allowed extraordinary liturgical liberties to the newly converted Indians until the Church, afrighted by the Reformation, put an end to all risky innovations. [17] Ruiz revived these earlier liturgies and juxtaposed Gregorian chants with zampango rythms and prayers in Tztotzil and Tzeltal. [18]

In line with his concept of a grass roots “Indian Theology,” Ruiz ordained 300 married deacons to assist in the process of evangelization. It was Ruiz’s expectation that these deacons would become the vanguard of a communitarian self-awareness which, thus legitimized, could coalesce around political and economic objectives of its own making. (Ruiz, Hora de Gracia § 5.1) The ecclessial Church, with its expertise, contacts and resources, could then assist in the process political self-expression, economic development and social assistance. (§ 5.3) [19]

It was all a post-Vatican II variant of “The Mission”.

The almost automatic reflex of well-disposed outsiders is to eulogize Ruiz as having helped ‘marginalized’ Indians. To say as much incorrectly assumes that the end-game was to ‘incorporate’ the Maya into the globalized economy of the capitalist nation state. Ruiz’s aim was rather for the larger society to recognize the cultural, political and economic legitimacy of the indigenous communities.

Equally short of the mark are encomiums which laud Ruiz for ‘mediating’ between the Government and the Indians. In some instances Ruiz’s role did indeed fall into the normal context of brokering between rival factions or parties. What tends to get overlooked in the North is that, where the goal of one party is the annihilation of the other, negotiation is, in itself, a victory.

It is sometimes forgotten that, throughout Central America in the second half of the 20th century, the War of the Castes was continued by other means with CIA-backed, ‘anti-communist’ dictatorships slaughtering literally hundreds of thousands of Maya. [20]

Thus, when in 1995 a Chase Manhattan Bank memo advised that "[t]he government will have to eliminate the Zapatistas to demonstrate their effective control of the national territory and security policy,” it was no small matter to get the government to sit at a table instead. [21]

Nor was it an “incidental” matter to work for the unity and reconciliation among the rival groups in Chiapas, given that to do so ran exactly counter to the PRI’s divisive policies.

Ruiz himself rejected being characterized as an advocate for any one faction or even on behalf of “the” Indians. “The so called ‘Indian problem’," he said, “is an international problem.”

Ruiz was proved right when, ensuing upon the passage of NAFTA, world corn prices fell through the floor and the Mexican farmer -- Maya and other - were driven into destitution. He supported the political theater of the Zapatistas to the extent that their aim was “to shake up the socio-political conscience” of Mexican citizens and world opinion as a whole.

In all of this, Ruiz skillfully played off his opponents. Needless to say, the reactionary church hierarchy in Mexico City tried to snag him into heresy and get him deposed. But Ruiz never broke the envelope and for every accusation, he wryly quoted some supportive passage from Canon Law or a papal encyclical. When the Vatican was on the verge of recalling him, 20,000 Indians demonstrated in his favor. It was too much for the Curia and the end result was a palaver of favorable words from John Paul II himself.

In a way the best eulogy of Ruiz came from Subcomandante Marcos. A university educated “niño bien” ('fair haired boy'), Marcos arrived in La Selva with a back-pack full of socialist wisdom and a burning desire to “enlighten” the natives. The result was a series of long “Declarations” in the usual “dialectal style” that had a devoted readership among a certain class in Mexico City, Berkeley, Paris and perhaps Barcelona. But Marcos was more than a mere dogmatic. He later confessed “I came thinking I had something to teach the Indians, when in fact it was they who had something to teach us.”

Did Ruiz succeed? In an immediate sense? Of course not. In Hispanic America only “the enemy” succeeds. But he continued a long and vigorous tradition of opting for the poor and in doing so he cleared a path for Indians to reclaim their dignity. That was no small victory.

-oOo-

But given a voice, what did the Indians "teach us" -- how to dance and grow corn in small villages? It is an unsentimental but necessary question. The answer, I believe, is that the Zapatistas became an “argument in the flesh” which corrected Church doctrine and challenged the socio-economic paradigm of the West.

The point of departure for Liberation Theology was Luke’s Magnifcat, in which the Virgin Mary exclaims:

"He has brought down the powerful from their thrones, and lifted up the lowly; he has filled the hungry with good things, and sent the rich away empty." (Luke 13:45-55)

This was more than a preference for the poor, it was a preference against the rich. It was as 'dialectical' as one could get and hearkened to God’s destruction of Sodom not merely to his deliverance of Israel from Egypt. For the indigenous of the Americas, Mary is not only a ‘goddess’ of compassion and regeneration; she represents triumph over power.

Radicals insisted that the Magnificat enjoined us to assist in casting down the mighty. Conservatives cited other scriptures, such as “rendering unto Caesar,” to support their contention that Christian meekness owed obedience to authority, whatever its character, because whatever is exists with God’s assent.

Strongly opposed to Liberation Theology, then Cardinal Ratzinger argued that the ‘liberation’ and ‘poverty’ spoken of in Scripture were ‘spiritual’ and referred to a subjective inner disposition. [13, supra] The argument was untenable; and, to see its flaw, it helps to return again to the 16th century.

In 1562 while the Franciscan friar Bernadino Sahagun was assiduously translating all Aztec texts he could lay his hands on [22], the Franciscan Bishop Diego de Landa Calderón arrived in Yucatan and committed the Mayan codices to the flames, as a great cry of anguish arose from hapless Indians.[23]

Sahagun and Landa represented opposed understandings of ‘conversion’. Landa embodied the spirit of Reformation literalism and certainty; Sahagun the subtler esprit de finesse which argued that Indian society -- so otherwise model -- had only been deceived with ‘false images’ of the Truth. Sahagun was not Carl Jung, but he intuited the existence of common patterns and archtypes lying within alien myths -- What Vatican II would later call "Seeds of the Word."

Whatever their approach Sahagun, Landa and the Indians all agreed that a people’s socio-economic foundations was rooted in its existential cosmology. Certainly the Maya world was seamlessly organic: Earth is inseverable from Sky and how man prays is inextricable from how he works.


This view runs contrary to the Englightenment’s secularization of social life which, at its most indulgent, relegates religious cosmographies to the private sphere. More usually, religion is deemed an 'ignorance' out of which the 'under-developed one' has to be uplifted.

The Enlightenment is a cheat. It pretends to be cosmologically neutral when in fact it is not. In the name of science -- or business -- it simply discounts 'non-objective' values. More brutally than Landa, its secularization commits traditions and customs to oblivion, paving them under, drowning them in blaring noise and holding up pouty white boys in briefs as the idols du jour. When the Indian is thus torn from himself, he is said to be no longer marginalized when in fact he is reduced to an utterly insignificant cypher in Metropolis.

Although the Church has acquiesced in, it has never sanctioned such a cleavage between faith and work. But a 'subjective disposition' is the greatest compartmentalization of all. Ratzinger’s espousing of an interiorization of the Magnificat resulted in a reductio which surrendered to the Enlightenment’s secularisation of social life. To do so ran contrary to the Church's fundamental incarnational message.

In all things there is a ‘logos’ and an ‘ergon’-- a form and a substance, a theory and practice, a word and a flesh, a Heaven and an 'on Earth'. The union of the two is reflected in the word ‘lit-urgy’ the roots of which mean work-of-the-people. This unity was incorporated into the Sixth Century Benedictine rule of ora et laboro -- not work and then prayer but rather each within the other.

Twenty years on and it would be hard to deny that Pope Benedict has not come around more than half way. In his first encyclical he noted the Marxist argument that the poor “do not need charity but justice” (Deus Caritas Est § 26) and “admitted that the Church's leadership was slow to realize that the issue of the just structuring of society needed to be approached in a new way.” (Op.Cit., § 27). At the same time he postulated that the option for the poor was “as essential” as the sacraments and preaching of the Gospel (Ibid., § 22.) [24]

His second encyclical insisted that “faith” was not merely a subjective attitude but a social reality (Spe Salvi §§14, 16) which “commits us to live for others” and guides each generation to build its own “social structures” to meet the challenges of the times. (Op.Cit., §§ 28, 25) [25]

In his third encyclical he wrote that consumerism and “cultural levelling” had created “new risks of enslavement and manipulation” (Caritas in Veritate, § 26) and that “man's darkened reason pervert[ed] the true economic order which requires human social relationships of friendship ... and reciprocity ... within economic activity, not only outside or after it. (Id, § 36.) [24]

Although he refrained from explicitly calling capitalism the “enemy of mankind” the encyclical’s immensely long list of its catalogued failures leaves one to wonder if it can ever be a friend.

While Benedict will not condone violence, exclude the rich or advocate any particular political-economy, he has unequivocally asserted that Christian prayer must manifest itself in works that create just economic structures which are tailored to human (not simply material) needs. After half a millenium, Montesinos stands vindicated.

The vindication was not all due to any one person or movement. Ruiz was a pastoral bishop who put a certain ergon into theological arguments being made by others. The Chiapas Indians were and remain interested in their freedom and their lands. But the conflict in Chiapas became an action-argument that was at once theological and political.

Given berth to 'evangelize' in his own language, the first question the Indian asked was: by what authority are you taking away our lands? The answer of the Mexican Government was that it was doing so in the name of economic development and by authority of the fact that the constitutional guarantee of communal ejidal lands had been duly and lawfully abrogated.

For the Indian that vis mayor and legal positivism were not sufficient. They did not weigh in with counter arguments; it was sufficient for them to deny that the government had authority to act in a way that was not responsive to their needs.

It was left to Marcos and Ruiz to take the argument to their respective constituencies: the first world bourgeoisie and the Church. In that way the Zapatista 'No mas' brought the rest of us to stop and question the logic of the paradigm the west has followed for the past 400 years. Unless we are completely "lethargic," the suffering of others always forces the issue.

The lethargic answer of neo-liberal rags like the New York Times was that the Indian didn't matter. "NAFTA has already shaken up Mexican farming — mostly for the better," wrote its resident Hispanic shill, Eduardo Porter. Of course, by "farming" he did not mean the Tztotzil and Tzeltal varieties. He meant the farming of Mexico, S.A., owned by USA, Inc. As for the flesh and blood campesino, well... the government “will also need to help more rural Mexicans find jobs outside agriculture.” You know, get themselves "re-tooled." [27]

The Indians of Chiapas were not the first, nor will they be the last to invoke the preferential option for the poor. But what was salient, if not entirely unique, was the way they invoked it. Their indictment was not that the neo-liberal economy had failed to distribute benefits efficiently and equitably (a question of mere utilitarian function), but rather that it was denying them their communities, their modo de ser on earth under the sky.

For the Chiapas Indian it was not enough to reply that he could be retooled to do something else. "Retooling" was precisely the sin of Spanish settlers. The Zapatista argument in the flesh forced first world society to go beyond questions of "effective policies" and to ask whether the authority of the liberal secular state was serving the needs of the soul -- man in work and prayer together with his fellow beings.

Too often progressives feel obliged to justify their goals in empirically objectified terms, saying things like “environmentalism makes good economic sense.” We are not afraid of dragging often idiosyncratic personal values into the fray but shrink from formulating and asserting existential social values, as if this involved some sort of trespass onto neutral space. In so doing we fall into the same trap that Ratzinger did. If we concede the underlying logic of liberalism we forfeit the game because that logic dictates precisely what is being done in the name of global trade and market magic [sic]. We should rather ask whether the problem isn't the secularization of society into utilitarian functions and fragmented individual spaces.

This is not to say that we should go native or that indigenous economies can sustain the material benefits we might want or need to have. It is to say that we have to reconsider the types of questions we allow ourselves to ask. It does not really matter if we approach the issues with a socialist or religious or aesthetic disposition. What matters is the range of human and social values we are willing to consider as options.


©WoodchipGazette, 2011

URL's to Notes

[1] Advent Sermon:
English: http://www.digitalhistory.uh.edu/learning_history/spain/spain_montesinos.cfm
Spanish: http://es.wikipedia.org/wiki/Antonio_de_Montesinos

[2] Laws of Burgos
Summary : http://en.wikipedia.org/wiki/Laws_of_Burgos
Spanish: http://es.wikipedia.org/wiki/Leyes_de_Burgos
English: http://faculty.smu.edu/bakewell/BAKEWELL/texts/burgoslaws.html

[3] Liberation Theology;
Generally: http://en.wikipedia.org/wiki/Liberation_theology
Concise History of Liberation Theology: http://www.landreform.org/boff2.htm

[4] Francisco Vitoria
http://en.wikipedia.org/wiki/Francisco_de_Vitoria

[5] De Indiis
http://en.wikisource.org/wiki/De_Indis_De_Jure_Belli

[6] Sublime Deus:
http://en.wikipedia.org/wiki/Sublimus_Dei

[7] Inter Caetera
http://www.nativeweb.org/pages/legal/indig-inter-caetera.html

[8] Donovan: Las Casas as Polemicist
http://reocities.com/CapitolHill/congress/8687/Casas.html

[9] Pennington:
Medieval Law http://classes.maxwell.syr.edu/His381/LasCasas2.html

[10] Vasco de Quiroga
http://en.wikipedia.org/wiki/Vasco_de_Quiroga
http://www.mexconnect.com/articles/312-vasco-de-quiroga notes-on-a-practical-utopian-1470%E2%80%931565

[11] Reductions
http://www.newadvent.org/cathen/12688b.htm
http://en.wikipedia.org/wiki/Jesuit_Reductions

[12] Canon Law (Autochthonous Prayer & Option for Poor):
http://www.vatican.va/archive/ENG1104/__PU.HTM

[13] Ratzinger in Opposition
http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19840806_theology liberation_en.html

[14] Chronology Maya
http://www.crystalinks.com/mayanhistory.html

[15] Cast War
http://en.wikipedia.org/wiki/Caste_War_of_Yucat%C3%A1n

[16] Ruiz Indian Theology
http://docfilm.com/webpages/Mexico/IndTheology.html

[17] Teponazcuicatl (Aztec 16th Cent.)
http://www.youtube.com/watch?v=pTKtwbgrOis&feature=related

[18] Revived Liturgies (Maya, 20th Cent.)
Tzeltal Mass
http://www.youtube.com/watch?v=_1XEUzSmZqE&feature=related
Zampango rythms
http://www.youtube.com/watch?v=L7J2xlUFgmg&feature=related

[19] EstaHora De Gracia (1993)
http://www.servicioskoinonia.org/relat/114.htm

[20] U.S. Interventions In Central America
Guatemala
http://www.thehumanist.org/humanist/articles/harris.html
http://www1.american.edu/ted/ice/peten.htm
Nicaragua
http://www1.american.edu/ted/ice/nicaragua.htm

[21]David Batstone Bishop Samuel Ruiz and the Zapatistas
http://www.aislingmagazine.com/aislingmagazine/articles/TAM19/Ruiz.html

[22] Fr. Bernadino Sahagun
http://en.wikipedia.org/wiki/Bernardino_de_Sahag%C3%BAn

[23] DiegoDeLanda
http://en.wikipedia.org/wiki/Diego_de_Landa

[24] Benedict 16th - Deus Caritas Est
http://www.vatican.va/holy_father/benedict_xvi/encyclicals/documents/hf_ben-xvi_enc_20051225_deus caritas-est_en.html

[25] Benedict 16th - Spe Salvi http://www.vatican.va/holy_father/benedict_xvi/encyclicals/documents/hf_ben-xvi_enc_20071130_spe salvi_en.html

[26] Benedict 16th - Caritas in Veritate
http://www.vatican.va/holy_father/benedict_xvi/encyclicals/documents/hf_ben-xvi_enc_20090629_caritas-in veritate_en.html

[27] Eduardo Porter Why are they Whining?
http://www.nytimes.com/2008/02/11/opinion/11mon4.html?_r=2&oref=slogin&pagewanted=print
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