"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Tuesday, October 31, 2006

In the Ghetto

Where to start? With Shea’s breathtaking sliming of a good, orthodox priest, Fr. Brian Harrison? This priest has had to suffer the slings of the uber-trads because he maintains that Vatican II’s teaching on religious liberty (Dignitatis Humanae) can be reconciled with previous teaching on the Social Kingship of Christ.

He now has to suffer the arrows of the neo-Catholic left, typified by Mark Shea smugly dismissing him as if he were an… I dunno, uncredentialed convert (what are your qualifications, Mark?) rather than someone who has studied theology professionally for years, holds a doctorate in Sacred Theology and teaches the subject at a pontifical university. This neo-Catholic leftism is perfectly illustrated by Shea in his latest diatribe, where yet again he insists that if anyone questions Shea's interpretation of Pope John Paul II’s teaching on torture, let him be anathema.

(Shea joins such luminaries of the religious left as Sister Helen Prejean, another one-issue wonder who thinks that her private views on an issue [capital punishment], also supported by fairly absolute language of John Paul II, trumps anyone’s reservations about the weight and exact meaning of that Pope's new teaching.)

Shea has gone so overboard in his hatred of Bush and Cheney that he now wants to slink off to a convenient ghetto, where he and his combox pals can sit in a circle and hurl anathemas at the rest of the Christian world that has not followed them. They will not vote in the election, no, that would make them ritually impure. You see, voting for the Republicans means voting for torture, an intrinsic evil. Voting for the Democrats means voting for abortion, also an intrinsic evil. See? The parties are morally equivalent! They will stay in their circle and pray before the tabernacle, thanking God they are not like other men.

Meanwhile, Catholics who have not lost the ability to discern, who know they must be “wise as serpents,” know that when two candidates are up for election, and neither entirely upholds Catholic moral principles, then the principle of proportionality permits, indeed demands, that we vote for the politician who will most closely follow the moral teachings of the Church and will most probably save more lives by opposing abortion on demand.

Now which party supports abortion on demand? All together now, the Democrats. Elect them and we guarantee maximum state support for abortion. Elect them and the federal judiciary slips even further into activism, especially on social issues like marriage and abortion.

On the other hand, we have the Republicans. Does this party support the Catholic moral agenda in all respects? All together now, “no.” They are, however, less likely on the whole to support abortion rights promiscuously and throw state sanction behind them. They are less likely to appoint judges who will produce opinions like Lawrence v. Texas (striking down Texas’ sodomy law), Roe v. Wade (abortion); Griswold v. Connecticut (striking down Connecticut’s anti-contraception law); and, soon to come, successful challenges like this one against state bans on homosexual marriage.

Now does voting for the Republicans imply agreement with every policy they pursue? No. Will voting for Republicans at least marginally improve the chance of public policy reflecting Catholic principles? A reasonable Catholic could conclude so. Shea on the other hand has become so wrapped up in the torture issue that he would sit by in his ghetto and watch the Democrats come to power, all because he supposes that a Catholic cannot vote Republican because they support torture.

Got that? Partial birth abortion, tax-funded abortion, activist judges, homosexual marriage, all coming to a country near you, if Mark has his way and all good Catholics abstain from voting, because he wants to make a point about (what he thinks to be the case) a few rotten Islamic terrorists supposedly being tortured.

There's proportionality for you.

Never mind, by the way, that his whole case is a house of cards. As I've pointed out, the Vatican and the U.S. both share a common definition of what constitutes torture.
The United States has bound itself to refrain from acts falling under this definition of torture, while setting up detailed guidelines to delimit the types of interrogation tactics that we will use.

Aside from an off-handed comment by Cheney about “dunking” which the White House has expressly disclaimed as signaling support for waterboarding, Mark has absolutely no grounds to accuse the administration of supporting torture, or of wishing to re-define it in a way that’s inconsistent with the shared Vatican-US definition. Says Mark:
The United States of America has engaged in and continues to engage in acts which no reasonable person can deny are torture. Men have (repeatedly) died from such acts. The United States has now passed legislation which effectively disengages the US from the obligation to abide by the Geneva Convention by giving the guy ordering the torture the final authority to define what is and is not torture. I have named three acts which any sane person (except George W. Bush) recognizes as torture: waterboarding (which the Veep himself boast about while denying he is doing so), cold cells and Palestinian hanging. The President has lied by declaring "We do not torture" while authorizing these and other intrinsically immoral acts and continuing to do so.

Shea may think Bush is lying because there was a limited use of such methods in the past; but unless he has proof that right now, post-Military Commissions Act, the administration is still using such methods he needs to stop, pause, and re-consider.

To help this process, let's consider this Military Commissions Act of 2006. According Justice Mark Shea of the Court of Hasty Judgments, the Act is objectionable because the court gets to determine who is an illegal enemy combatant and that the whole world is subject to this arbitrary determination ("I believe that once the precedent is set that the Executive has the right to arrest and detain anybody it likes for as long as possible on suspicion of being an enemy in the war on Terror, history shows that language will only become more flexible when the Executive has sole discretion in deciding what "enemy" or "material support" means.).

What does the Act actually say? ‘‘Any alien unlawful enemy combatant is subject to trial by
military commission under this chapter." Emphasis added to show that this act applies only to non-U.S. citizens. Again: U.S. citizens are not subject to the Act.

Moreover, under the Act, the accused gets a defense attorney, is afforded the right to have compelled statements excluded (i.e., statements shown to result from torture will be excluded from evidence), has the right to review the government's evidence and cross-examine witnesses against him and subpoena his own witnesses. Perhaps most significantly:
the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.
In other words, unlawful enemy combatants (i.e., jihadi terrorists) have access to civilian appellate courts. So although the non-U.S. citizen unlawful enemy combatants do not have habeas corpus rights under this Act (is there some compelling reason they should?), they have full direct appeal rights to civilian courts.

Does the President under this Act have the authority to decide what specific methods constitute torture under the Geneva Convention? Yes. Is this some nefarious Bushie plot to overthrow democractic government? No-- to go back to civics 101 for a moment, the executive branch is charged with enforcing treaties. The President has always had the authority to determine in what manner the treaties we enter into should be interpreted, especially where, as with the Geneva Convention, the treaty expressly deals with conduct of executive branch employees, i.e., the military.

To bring this full circle, then, here is what the administration has in the past determined are appropriate interrogation methods. Rumsfeld and the administration specifically drew up this list and it excludes waterboarding and if you read it, you will see that the methods approved are pretty mild and uncontroversial.

Whatever methods the Administration now adopts, moreover, must be published in the Federal Register and will be subject to judicial review. The Administration already knows that a bipartisan majority of Congress believes that waterboarding and extreme temperatures constitute torture, and so will have to abide by that or risk further, explicit legislation outlawing those methods.

So Mark Shea needs to stop hyperventilating about the President and acting like Chicken Little, as if torture chambers are just around the corner for all of us. In point of fact, while publicly wishing to say little or even to allow an impression to remain for our enemies that the methods Shea objects to might still be available, the fact of the matter is that the Administration has never expressly adopted the methods in question, and almost certainly will not do so now.

The "Bush is a torturer" thing may be a nifty paradigm for the left to suppress the vote for the upcoming election, but is a disservice to the truth and a cartoonish mischaracterization worthy of the hyperbolic rantings of the flower power 60's radicals. Grown-up Catholics on the other hand have a vital interest in defeating the real party of death.

A Solution?

To the clerical abuse situation, that is:

"A cleric or monk who seduces youths or young boys or is found kissing or in any other impure situations is to be publicly flogged and lose his tonsure. When his hair has been shorn, his face is to be foully besmeared with spit and he is to be bound in iron chains. For six months he will languish in prison-like confinement and on three days of each week shall fast on barley bread in the evening. After this he will spend another six months under the custodial care of a spiritual elder, remaining in a segregated cell, giving himself to manual work and prayer, subject to vigils and prayers. He may go for walks but always under the custodial care of two spiritual brethren, and he shall never again associate with youths in private conversation nor in counseling them."

--Rule for the Benedictine Monastery of Compludo (11th century)


This remedy might even escape the label of torture since it is a punishment not an interrogation method. Still, it probably would qualify as an example (from Veritatis Splendor) of "whatever violates the integrity of the human person, such as... attempts to coerce the spirit" and hence be considered intrinsically evil. Therefore it would never be countenanced by the current ecclesiastical regime.

But they sure knew how to handle things more directly in the bad old days.

Cargill Forced to Back Down

Luis Padilla, the Cargill employee fired for expressing his pro-marriage views, has, with the help of the Valley Family Forum and a wave of public outrage, prevailed against the hateful, intimidating tactics of that anti-marriage corporate giant.

According to a release from Virginia For Marriage,
...How Did It End? Luis and the Forum met with Cargill on Oct. 24 at their
invitation. They agreed to: 1) reinstate Luis to his position, 2) restore his back pay, 3) expunge from his personnel file all reference to this situation, including charges of insubordination, 4) express regret to Luis and his family, and 5) issue new guidelines to prevent a recurrence of this sad experience.

Congratulations to Mr. Padilla.

Friday, October 27, 2006

Defining Terms

Sigh... Papa Mark is really a one note wonder about this whole torture thing. He is very anxious to smear everyone who does not immediately and unquestioningly accept his view that because Veritatis splendor #80 apparently says torture is intrinsically immoral then we all must accept it fully and not question its theological weight.

Oodly, after protesting that he could not possibly define torture, he now refers us to the dictionary, to interrogation manuals, and to the golden rule while accusing his opponents of not being willing to accept a definition of torture (since a fundamental problem of VS#80 and all the other modern teachings purporting to condemn torture is that they nowhere define it).

So in the hope that we might at least understand what exactly we are talking about when we're trying to figure out if torture is intrinsically immoral or sometimes immoral, I offer the following attempt at a serious, workable definition that all or most might agree on. Torture is very well defined, as I pointed out some time ago, in international law to which the U.S. has committed itself, as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

(U.N. Convention Against Torture). Torture is moreover defined in U.S. domestic federal law in very similar terms:

(1) “torture” means an act committed by a person acting under the color of law
specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of
mind-altering substances or other procedures calculated to disrupt profoundly
the senses or the personality;
(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.


So, please-- no golden rule or Merriam Webster definitions. Torture is fairly well defined in international and domestic law. Since the Holy See maintains a presence at the U.N. and has ratified the U.N. Convention Against Torture it is fair to assume that the Vatican itself would accept this type of definition.

What of it? Two points. First, granting for argument's sake that torture is intrinsically evil, as Shea would have it, a fair conclusion is that this is what John Paul II had in mind when he called torture "intrinsically evil" in VS #80.

Second: Anything milder than what would fall under this definition is not torture, and thus does not fall under the condemnation of VS #80.

Although these two conclusions do not eliminate the debate over the development of teaching represented by VS#80, it at least gets us to a point where we can stop calling anything which makes us uncomfortable "torture."

Hence, aggressive interrogation techniques would be permisible, such as these actual methods now approved for use by US interrogators:

"change of scenery up; change of scenery down; dietary manipulation; environmental manipulation; sleep adjustment (reversal) ; isolation for 30 days"; and a technique known as "false flag," or deceiving a detainee into believing he is being interrogated by someone from another country. The other 17 techniques are approved in standard military doctrine and carry these names: direct questioning; incentive/removal of incentive; emotional love/hate; fear up/harsh; fear up/mild; reduced fear; pride and ego up and down; futility; "we know all"; establish your identity; repetition; file and dossier; good cop/bad cop; rapid fire; and silence.
Four of the tactics required interrogators to notify commanders in advance of their use. They are: isolating a detainee from peers; pride and ego up or down, which means attacking someone's personal worth and sense of pride; and "fear up/harsh," in which interrogators could yell at prisoners, throw things around the interrogation room and convince a detainee that he has something to fear, sleep deprivation, loud music, standing for lengthy periods of time, use of deception, isolation from peers, use of cold or unpalatable food....
Expressly excluded are methods such as waterboarding. Note however, that waterboarding, for all of Shea's histrionics, does not necessarily induce "severe mental pain or suffering." That is, it does not inflict any actual injury to the person but only causes a person to feel that he will drown. As has been pointed out in several places, US personnel themselves undergo the method in training, so as to understand its effect. Are they being tortured?

At any rate, with these definitions in mind, hopefully St. Blogs can narrow the discussion to those methods (which the US has disavowed) which are truly torture, that is, which inflict severe mental pain or suffering. Shea can come up for air and stop making not-so-veiled threats against the Vice President (the Secret Service might take exception): the administration's own laws disavow any intent to commit torture as the Holy See and the U.N define it. And the so-called Bushies can cease worrying: the administration proposes to do nothing contrary to the novel teaching of VS#80. Sadly, I get the impression that Shea likes using this issue to vent his hatred of Bush and Cheney, and will not let it go even if the administration expressly disavows torture (as it has).

No wonder St. Thomas was a stickler for definitions. It clarifies matters, no?

Carry on.

Class in Session

I don't suppose I should have expected better from Talk Left: but hasn't the argument that pro-lifers should, to be consistent, oppose the death penalty been answered, like, a million times over by now?

Sigh. Pro-lifers (for the most part) are not pacifists. There is a difference between an unborn human child who is the very exemplar of innocence, and people like this or this or this or this or this, who are the very exemplars of evil and guilt.

There is a time when life is rightly taken by the state. Just war and capital punishment are two examples. Abortion takes an innocent life. Any questions?

Thursday, October 26, 2006

Requiem for Marriage in New Jersey

Here it is: New Jersey Supremes predictably hold that equal protection provision of the state constitution requires that homosexual couples be afforded the full rights and privileges of normal marriage. While superfluously holding that there is no fundamental right to marry conferred by the due process clause of the constitution (hoping no doubt to head off the polygamists and others), the Court nevertheless holds that there is no basis for the state to deny all the privileges of marriage to homosexual couples, with the exception that the state need not call their couplings "marriage." Well, then, all is well.

The Court's opinion sounds like an episode of "Oprah," adoringly giving us the life stories of the seven homosexual plaintiff couples, apparently in a bid to support the Court's contention that the "plaintiffs lead lives that are remarkably similar to those of opposite-sex couples." There's great legal reasoning for you. Don't try it at home, boys and girls, you need a special license to engage in such sophisticated lawyering.

Ummm, excuse me, Mr/Ms. Justice, but I don't know of a single heterosexual couple where (like one of the NJ couples you glorify) both were artificially inseminated to produce their two children. I also don't know of any heterosexual pairing premised by its very nature on the absence of either a mother or a father. By definition, these supposed "just like us" families are designed to be fatherless households (in the case of lesbian couples) or motherless households (in the case of male homosexual couples). True, heterosexual families sometimes end up dissolving into single parent situations, but they are not deliberately designed in advance to exclude the presence of an opposite sex parent in the household.

Yet astoundingly, the NJ robed gods did not see this simple fact as justification for the state's continued fostering of normal marriage. Of course, it's not all the Court's fault. Apparently, the NJ “Attorney General disclaim[ed] reliance upon promotion of procreation and creating the optimal environment for raising children as justifications for the limitation of marriage to members of the opposite sex.” Huh? (Although the "acting" AG is on the brief, the case no doubt was prepared under the corrupt former AG, one Zulima Farber, who resigned in disgrace before the case was argued. I know you'll be shocked to find that Farber was a past- state board chairperson for NARAL Pro-Choice America)

The rationale of the NJ court was that since the NJ legislature had enacted several laws favoring homosexuals, such as a domestic partnership law, a "hate-crimes" law, liberal adoption standards, and the like, the state could not withold the additional benefits conferred by marriage consistently with equal protection principles. Ironically, the message there might be that legislatures should not take a single step down the road conferring any unique protections on homosexuals as such, lest the courts conclude, like NJ, that once you give them a bite, you have to give them the whole enchilada. As pointed out by Dale Carpenter, this may cause a retrenchment in other states worried about judicially imposed homosexual marriage.

The bad news is that all it takes is some creative writing from our judicial masters to finagle the equal protection argument any way they like. Virginia's constitution, like New Jersey's, guarantees equal protection of the laws. Unlike NJ, however, Virginia does not by statute grant adoption rights to homosexuals, and our courts have thusfar denied them that right. But at the insistence of the homosexual lobby, the Virginia Housing Development Authority has removed a restriction to their Single Family Loan Program which had required co-borrowers be related by blood, marriage or adoption, thus excluding homosexuals.

Moreover, previously Va. Code § 38.2-3525 had limited healthcare insurance coverage to the employee and a limited group of defined dependents—even where a private employer chose to offer broader benefits. The 2005 General Assembly passed a law signed by former Governor Mark Warner allowing private, employer-based health insurance to be extended on a voluntary basis to individuals living in the same household as the employee, i.e., homosexuals.

And in 1999 the Virginia Supremes ruled in Bottoms v. Bottoms that homosexuality of a parent is not a per se disqualification to custody rights.

So although Virginia has not gone as far as NJ in giving express statutory entitlements to homosexuals, there has been some movement favoring their initiatives. It is not difficult at all to imagine a 4-Justice Virginia Supreme Court majority ruling that equal protection concerns trump whatever remains of the state's concern in fostering traditional marriage and family life.

If you're a Virginian and believe the people, not judges, should decide what marriage in this state should look like, the constitutional amendment on the November ballot is the solution. It forbids the establishment of so-called civil unions, or "marriage-lite." Marriage, at least as a public, civil institution as it has been known from time immemorial is now dead in New Jersey. Why? Because their legislature enacted a domestic partnership law that gave many benefits of marriage to homosexual couples. The NJ Supremes yesterday said that since homosexual couplings are not disfavored, the state cannot deny them the full benefits afforded to heterosexual couples. In Virginia, even though a statute forbids homosexual marriage, other laws and judicial rulings seem to afford some protection to homosexual couples. And we all know that a mere statute cannot trump the constitution!

In Virginia, when the proposed marriage amendment is adopted, the fundamental uniqueness of traditional marriage will be reaffirmed and "marriage-lite" civil unions will be unconstitutional. The New Jersey tactic will be unavailaing here, because no legal argument could then be made that since Virginia favors partial homosexual cohabitation rights, it must confer them in full.

Tuesday, October 24, 2006

Land of the Free...

...Unless you're opposing the homosexual agenda, that is. Virginia has a measure on the upcoming ballot that would enshrine in our state Constitution a definition of marriage, so as to place the issue beyond the reach of power-sodden judges who might find a "due process" or "equal protection" right to homosexual marriage in the Constitution. Not surprisingly, the usual suspects, fearing the democratic will of the people of Virginia, oppose this common-sense measure.

Not content with using the political process, the homosexualists have apparently co-opted big business to intimidate those who do not give obeisance to the homosexual agenda. Luis Padilla, an employee of Cargill, an international food processing company, was ordered to remove pro-marriage amendment decals and signs from his personal vehicle because Cargill found the message "offensive." When Padilla instead parked off the premises of the company but did not remove the offending bumper sticker, he was fired.

Why are we not surprised, since this goliath business boasts that "we are proud to have received a 100% rating in 2005 from the Human Rights Campaign Corporate Equality Index, which rates American businesses' treatment of gay, lesbian, bisexual and transgender employees, consumers and investors."

Right, and a 0% rating from those who believe in free political discourse.

HT to Virginia For Marriage.

Monday, October 23, 2006

The Community Speaks

A Richmond City jury convicted a former police officer of manslaughter for shooting a suspect while the officer was being dragged by the suspect's car. The sentence handed down by the jury? A $2,500 fine. No jail. No prison.

The "victim's" mother called the sentence "a joke." The real joke was the Commonwealth's decision to try this officer again after he was tried previously for second degree murder in a trial that resulted in a hung jury. That earlier trial was prosecuted by the former elected Commonwealth's Attorney, who had also tried to convict a different police officer for another line of duty shooting, but failed in three trials to obtain a conviction.

At least the current Commonwealth's Attorney was smart enough to seek only a manslaughter conviction at this retrial, a tactic which succeeded, but only barely. The jury could have given the officer up to 10 years in prison, but imposed only a fine. I would not consider that a win.

One interesting note, however, is that, despite Ken's oft-stated objections to jury sentencing, a case such as this one shows why the system works reasonably well (Virginia, unlike most states, allows juries not only to find guilt or innocence, but to recommend the punishment). The jury apparently thought the officer was somewhat negligent in shooting the "victim." They also apparently thought that the level of negligence involved was de minimis. Thus, while feeling the officer was technically guilty, they clearly believed his fault was slight. So, then, was his sentence.

This is no doubt why the prior jury deadlocked; it was over-reaching to accuse the officer of murder when at best you had a misjudgment about the level of threat presented by the "victim," a misjudgment not even worthy of putting someone in jail over.

Friday, October 20, 2006

Miranda v. Arizona as "Torture"

A prominent New Zealand defense attorney has joined with police there to urge reconsideration of the policy that allows defendants to maintain silence (the triggering event being two unsolved child homicide cases). The report documents the complaint that police cannot "compel" the parents involved to give a statement as to the circumstances of the childrens' deaths. As pointed out here at Crim Prof, what this likely means is that the suspect's silence in the face of questioning, especially in circumstantial cases where the suspect would be expected to possess relevant and material information, could be considered as one factor by a jury in deciding the question of guilt.

Interestingly, also linked at Crim Prof is this article by another law prof who argues that the Miranda "warnings" need to be expanded, not contracted as the New Zealanders would have it. Why? Because, the argument goes, supposedly criminal defendants confess too often, even after being advised of their rights! And this is a "problem" because suspects are in effect often making the (incorrect) judgment that if they invoke the right to remain silent, a fact-finder can draw a negative inference from that silence. Thus, goes the argument, suspects feel compulsion to confess lest their silence be used against them. And of course, voluntariness is the keystone of admissibility of statements. So the prof concludes that the Miranda warnings need to be tweaked to make extra-double-sure that suspects really know they can (should?) remain silent.

This is an interesting intersection of the torture debate we've been having in St. Blogs, and domestic criminal law. After all, if the professor is correct and people are confessing, despite being told of their right to remain silent, because of mental compulsion due to worries about potential use of their silence in court, then perhaps this passage of Veritatis Splendor (citing Gaudium et spes) is applicable:
The Second Vatican Council itself, in discussing the respect due to the human person, gives a number of examples of such acts [i.e., intrinsically wrong acts]: "Whatever is hostile to life itself, such as any kind of homicide, genocide, abortion, euthanasia and voluntary suicide; whatever violates the integrity of the human person, such as mutilation, physical and mental torture and attempts to coerce the will."

Under a certain fundamentalist or literalist view of the italicized language, the police in this country routinely engage in intrinsically evil acts by interviewing suspects after advising them of their Miranda "rights" if one agrees with the professor that suspects feel compulsion over worries that their silence will be used against them in court.

Needless to say, when the police use such methods as extended interrogations, deception, and double-teaming ("good cop-bad cop"); often in a small, windowless room-- it's hard not to conclude that outright coercion/torture is taking place. These methods are clearly designed to coerce the will and extract confessions by use of pressure.

Now don't try to suggest that this doesn't count as torture, because then you'll just be a torture excuser®. There is no place for line-drawing and distinctions. We all know that it is a slippery slope and we must resist the temptation to "tip-toe" up to the line between the impermissible and the permissible, wherever that line may be, if it even exists.

So it goes in some people's world.

Thursday, October 19, 2006

Fr. Harrison on Torture

Just as I was preparing to link to his excellent articles on the subject of torture and the magisterium in the excellent journal Living Tradition, Fr. Harrison was good enough to respond to this post:

Since your comment mentions and links my last year's letter to "Crisis" commenting on Mark Shea's article on torture, you and your readers (and perhaps even Mr. Shea) may be interested to read my much more extensive two-part article on the morality of torture which has since been published in "Living Tradition". Mr. Shea's "Crisis" article was a big factor in prompting me to research this difficult and unpleasant subject much more thoroughly. Part I of my article deals with the teaching of Sacred Scripture regarding the ethics of torture, while Part II deals with the witness of Tradition and Magisterium. My bottom line is that you are right and Mr. Shea is wrong. As I see it, the authentic (and much less the infallible) magisterium, correctly understood, does NOT clearly condemn as intrinsically evil the direct (intentional) infliction of severe bodily pain. Mr. Shea's position seems to me a good example of what has been described as "magisterial fundamentalism" (interpreting magisterial statements in a superficial, literalist way without taking account of their literary and historical context, and the previous history of Scripture and Traditon on the subject). The links to my two-part article are:
[below]

Sincerely, Fr. Brian W. Harrison, O.S., S.T.D. Associate Professor of Theology, Pontifical Catholic University of Puerto Rico, Ponce, Puerto Rico

Here is Father Harrison's Part One survey on the sources for Catholic teaching about physical compulsion/ "torture."

Here is Part Two, where Father Harrison concludes after surveying the Church Fathers, Councils, and Papal and theological writings that it is an open question as to whether torture to obtain life-saving intelligence is compatible with the general exclusion of torture for other reasons.

NOTE: This should not even be necessary to state, but neither Father Harrison, nor I nor most other commenters support or condone 1) torture to exact confessions; or 2) ultra vires torture such as the occurences at Abu Ghraib.

Could Shea and his hounds show a little more modesty about the binding force of their views? I'm not a professional theologian. Shea is clearly not. Fr. Harrison and Cdl. Dulles are. Can we take a pause, a deep breath, and consider their views with humility? Alas.

(Incidentally, despite the slurs against Father Harrison issued by the combox cardinalate, I can attest that Fr. Harrison and the Oblates of Wisdom are entirely orthodox. Indeed, when I was preparing my thesis at Christendom College on the compatibility of Dignitatis Humanae with the traditional teaching on the social Kingship of Christ, I found that Father Harrison had the single best defense [summarized here and in greater length in his hard-to-find book Religious_Liberty_and_Contraception] of the possibility of reconciling the two very apparently divergent teachings.)

Monday, October 16, 2006

Dems Finally Find Way to Neuter Catholic Vote

The Catholic left has obfuscated the issue of Islamic Jihadi interrogations well enough to convince ol' Papa Mark that it would suit him just fine, thank you very much, to see the pro-homosexual, pro-abortion, weak on defense Dems win rather than support the supposed grave evil of our current "torture regime" otherwise known as the Republicans. Seems His Holiness will spend the evening in front of the Blessed Sacrament rather than pull a lever with an "R" next to the name.

Wonder where he's been for the past 30 years that he hasn't realized before now that we vote holding our noses for the lesser evil when that's the only game in town. Will I, in Virginia, vote for George Allen, even though he is weak-kneed on important issues of concern to me as a Catholic? When the alternative is Jim Webb, a rabid pro-abortionist, pro-homosexual marriage lib who will also (just to add insult to injury) try to raise my taxes? To ask the question is to answer it.

But Shea apparently has his religious faith mixed up with the proposition that we can only vote for angels. Worse, that if two devils are on the ballot, we cannot vote for the lesser of the devils, even at the cost of the worst devil winning!

And when his combox minions take his advice, and when the Dems take the reins? Will Shea dare to criticize what the Party of Death does once in power, when he has shown himself to be too dainty to soil his hands in the trenches? Will he protest when he's called a hypocrite for daring to oppose them while sitting on his hands while they took over?

He will no doubt feel very morally superior when a few jihadi whackjobs are not being "tortured," but we have federal funding of abortions, Supreme Court justices like Ruth Ginsburg, and a Federal Protection of Homosexual Marriage Act.

A "job well done" is in order to the Catholic left for neutering so many opposition votes by their distortion of Catholicism.

She's Right

Lynne Stewart, that is. The leftist lawyer who helped terrorist Omar Abdel-Rahman communicate with fellow terrorists while she represented him during his trial in 1995, despite very specific instructions from the court that Rahman was to be isolated from outside contacts.

Poor Lynne the terrorist abetter thinks her case has echoes of the Sacco-Vanzetti and Rosenberg trials.

Yeah, like the defendants in those cases, she deserves a lot more than the 30 years she may well get. She ought to have been charged with treason, which carries the death penalty.

HT and more details at Sentencing Law and Policy.

UPDATE: A measly 28 months. Much better than what Sacco-Vanzetti and the Rosenbergs got. The judiciary again shows itself clueless about what is at stake in this war. Sorry, Lynne, but that sentence is not one to make you a cause celebre with the lunatic fringe.

Friday, October 13, 2006

He Should Have Been a Lawyer

And I thought only lawyers engaged in routine hyperbole, mistatement, and mud-slinging. I had no idea a self-professed apologist like Papa Mark could do it like the best of sleaziest lawyers. You missed your calling, son.

Ahem. I have not changed anything in my view about torture. I don't think it to be a particularly useful or necessary practice. But when that hypothetical terrorist knows where the hypothetical hidden suitcase nuke is, would forcing him to tell us where it is really be "intrinsically evil?" It's not consequentialism to suggest that his bodily comfort and dignity do not confer on him a right to withold information that would save thousands of innocent lives.

Nevertheless, I simply made the point that it is not reasonable to maintain that the new teaching is infallible when the Church unquestionably never classified use of physical compulsion as an intrinsic evil that could never be justified.

I have two problems with Shea's pontifications:

1) Shea's premise is weak, namely the assertion that the Church teaches that "torture is intrinsically evil." This assertion is supported by exactly ONE document: Veritatis Splendor. Gaudium et spes, to which VS refers, does not itself call torture intrinsically evil. And as has been noted in several venues, VS also calls OTHER things "intrinsically evil" which are clearly NOT: such as: "attempts to coerce the spirit" and "deportation...[and] degrading conditions of work which treat labourers as mere instruments of profit, and not as free responsible persons." So one must question whether VS is a sound source to overthrow all the prior teaching of the Church which never saw torture as "intrinsically evil." Unless Shea is arguing that VS is an act of extraordinary infallibility, all VS demonstrates is that Pope John Paul II considered torture (and other practices) intrinsically evil which never had been so considered by the Church before.

2) Shea does not understand how moral theology proceeds. One of his comboxers summarized the situation well:
1) The Church has traditionally taught that torture is sometimes morally acceptable; 2) The Church does not contradict herself on faith and morals; 3) Therefore, VS does not really teach that torture is intrinsically immoral, and if it appears to do so it is only because it hasn't been properly understood. As noted by Cardinal Dulles and others it is problematic to take the list of acts given in VS 80 as being intrinsically evil in a straightforward sense. In addition to torture, the list includes items (such as deportation) that clearly aren't intrinsically evil, as well as items (such as substandard living conditions) that aren't even acts, let alone intrinsically evil acts. On the other hand, I'm not sure there is any remotely plausible way to argue that the Church has always taught the intrinsic immorality of torture. I just don't see any way of doing this, other than arguing that it must be so, and therefore is so, nevermind the details. The only way I see to accept the intrinsic immorality of torture from a Catholic perspective would be to deny (2), and claim that the Church can change her mind on some issues of faith and morals consistent with the promises made to her by Christ to protect her from error.
The emphasized text is spot on, because it accurately states how a Catholic should approach a case of apparent contradiction between a new formulation and an older teaching. Unless and until the Church herself provides a clarification, the task is not simply to discard what went before (Shea's answer), but to try to harmonize the two (apparently) contradictory teachings.

Of course Papa Mark and the combox cardinalate do not have the patience for this exercize and so throw out some slurs about how those who engage in this task are no better than liberals who won't accept the Church's teaching on abortion because it is supposedly not infallibly proposed. Mark clearly does not understand that it is moral teachings that have been consistently, universally, proposed which are infallible ex magisterio ordinario. Abortion is one such teaching. The moral liceity of the death penalty is another one (which is why Pope John Paul II did not, despite his obvious personal opposition to any use of the DP, try to promulgate an absolute ban on the practice). Dr. William May gives a good summary overview of this type of ordinary infallibilty. The proposition that abortion is always a grave moral evil is infallible per this ordinary exercize of the magisterium.

Shea's absolutist (and only weakly supported) view that the Church's teaching is that torture is always and everywhere intrinsically immoral, on the other hand, would, if true, be a recent teaching, certainly not one which has always been the Church's teaching, and therefore could not be an infallible teaching in the way that "abortion is always evil" or "adultery is always evil" are infallible teachings.

That is why it is important to define terms. If this teaching Shea uses to attempt to silence all debate as if it were 1) really an absolute intrinsic condemnation of torture, and 2) an infallible teaching, is really a development or clarification of the Church's prior teaching, then it is not a closed subject upon which Catholics may not disagree. It is, rather, a teaching that needs exploration, explication, and definition.

Shea thinks it is condemnable apostasy even to explore the question of the thelogical weight of these new propositions, and indeed, even to inquire about what precisely the Church is proposing for condemnation. Never mind that the Church herself takes no such absolutist view, for Shea, the answer is always: "shut up, torture excuser, and take my word for it: the Church condemns you."

Back to Moral Theology 101, Mark.

Thursday, October 12, 2006

Back to Basics

Yes, Papa Mark heard it right: there is legitimate question concerning whether torture is intrinsically immoral in Catholic moral tradition. He is wrong, however, and engaging in detraction to claim that I embrace the view that torture is not intrinsically immoral.

What I do maintain is that the instant combox magisterium, of which he is the apparent Head, is not necessarily of greater weight than:

Sacred Scripture:
1) Dt. 25, 1-3: "If there be a controversy between men, and they come unto judgment, that the judges may judge them; then they shall justify the righteous, and condemn the wicked.
And it shall be, if the wicked man be worthy to be beaten, that the judge shall cause him to lie down, and to be beaten before his face, according to his fault, by a certain number.
Forty stripes he may give him, and not exceed: lest, if he should exceed, and beat him above these with many stripes, then thy brother should seem vile unto thee."
2) Lev. 20: 1-2: "And the LORD spake unto Moses, saying,
Again, thou shalt say to the children of Israel, Whosoever he be of the children of Israel, or of the strangers that sojourn in Israel, that giveth any of his seed unto Molech; he shall surely be put to death: the people of the land shall stone him with stones.
3) Lev. 21:9: "And the daughter of any priest, if she profane herself by playing the whore, she profaneth her father: she shall be burnt with fire."
4) Dt. 17:2–5: "God said: 'If there is found among you, within any of your towns which the Lord your God gives you, a man or woman who does what is evil in the sight of the Lord your God, in transgressing his covenant, and has gone and served other gods and worshiped them, or the sun or the moon or any of the host of heaven, which I have forbidden, and it is told you and you hear of it; then you shall inquire diligently [note that phrase: "inquire diligently"], and if it is true and certain that such an abominable thing has been done in Israel, then you shall bring forth to your gates that man or woman who has done this evil thing, and you shall stone that man or woman to death with stones.'"
Prior Papal Teaching:
5) "Exsurge, Domine"(1520)(condemning as false and rash the assertion "That heretics be burned is against the will of the Spirit." burning is inherently torture, since it is beyond what is necessary to simply effect someone's death).

If torture (as broadly and all-encompassingly viewed by Mark) is intrinsically immoral (i.e., never good under any set of circumstances, then God mandated an intrinsic evil and allowed His Church to promote, sanction, and justify it for more than a thousand years. It's kinda difficult to square this view with the perfection of God and with the indefectibility of the Church.

The point is, much as Papa Mark and the combox cardinalate want to convert "torture is bad" into a de fide, infallible pronouncement of the Church, so they can end the argument (at least with Catholics) by a simple appeal to authority, it's not that simple.

The Church, following the example of Sacred Scripture, has never apparently before now categorically excluded physical punishment or what we might call "torture." She certainly has expressly condoned its use many times in history. My own two cents is that this occurred because, as with the issue of capital punishment, only in modern times has the view emerged that the body is more important than the soul. Our current shrinking from the death penalty and now, from even mild forms of physical compulsion, spring from the adoption of the modern mindset that the body is our highest good. Only with this predicate can one make sense of the claim that the death penalty is somehow an earth-shattering, to-be-avoided-at-all-costs, imposed "rarely if ever" burden on the "dignity of man." Likewise, the over-delicate concern that we never impose even mild discomforts like sleep deprivation or standing for long periods of time on jihadists, springs from a materialistic absolutization of the body.

Just my thoughts, but how else to explain the dichotomy between: the sources Papa Mark cites (basically, a modern encyclical and a passage in Gaudium et Spes [from a Council that expressly denied exercizing extraordinary infallibility], neither of which tell us what they mean by the word when they forbid "torture") and the traditional understanding that guided the Church for the prior 2,000 years? "We're good and virtuous and the old Church was ignorant and bad" is not a cogent answer.

While we might wish to ignore these teachings and this history, the Catholic who believes in a Church that is not re-invented every generation to meet people's contingent, shifting sensibilities cannot wish these facts away. They must be accounted for and harmonized with whatever it is the Church is currently condemning as torture. Like the modern teaching on the death penalty, the new teaching must certainly be respected and followed, but Mark wants to absolutize the new teaching and elevate it to the highest level of authoritative teaching.

He has to explain why he thinks his sources are as absolute and definitive as he is claiming. He has to show why these sources trump the prior sources. He, as the person promulgating a new understanding (the infallibility of the "no torture" clauses of his sources) bears the burden of proof and persuasion.

It might well be that there is an argument that this is a legitimate development and that the "new" teaching is "definitive" and "infallible." But no one has demonstrated this yet, and certainly the Church herself has not made this claim or even attempted to condemn as "torture" the broad array of practices that Papa Mark has proclaimed ex cathedra to be torture. (He's in the habit of going well beyond what the Church herself proposes, as shown here and here).

His mere ipse dixit is not a sufficient argument.

Man the Picket Lines

Sr. Helen Prejean is coming to my home town. She's the whack-job heretical nun who's made a mint hawking her self-glorifying and unctious books ("Dead Man Walking," of course, subsequently made into a movie and an opera; and "Death of Innocents, " an ironically titled, falsehood-filled screed about two overwhelmingly guilty murderers who were rightfully executed).

Not only is the good sister famous for her strident pro-murderer advocacy, she is also a seething anti-Bush partisan, who recently got herself "dis-invited" from speaking in the Diocese of Duluth for signing a rabid anti-Bush ad in the New York Times which called for Bush to be removed from office and compared him to Hitler, attacked him for the war in Iraq and for "denying women here, and all over the world, the right to birth control and abortion." Prejean subsequently disclaimed the portion of the statement dealing with abortion, but specifically reiterated on her web site her opposition to what she calls "the life-destructive policies and practices of the Bush administration. That is what led me to sign the ad calling for his removal."

In other words, having been caught over the line advocating birth control and abortion, she is forced to retract that portion of her endorsement, but as for Bush being Hitler? She's sticking to her guns, if we can use that phrase about a pacifist.

What in the world is the Richmond diocese thinking? It's bad enough to permit someone who denies Church teaching about the licit use of the death penalty to attack that teaching using diocesan facilities. But to allow Prejean to air her partisan attacks on Church property would be to condone partisan political activity, and to expose the diocese to charges of violating the terms of its IRS tax-exempt status, which is extended on the premise that churches may inform members about politicians' positions on issues, but may not endorse candidates.

If you're a Catholic who thinks that dissenting radicals should not be given yet another pulpit (the MSM adulation she gets is not enough?) to air her un-Catholic views and her partisan political rantings, let the Office of the Diocesan Theologian hear about it.

Wednesday, October 11, 2006

More On Gestalt Morality

Pope Mark again, at agonizing (torturous?) length expostulates his fundamental thesis that TORTURE IS BAD. Bad, bad, bad. Evil. Torture is really wrong. Did you see where he mentioned that torture is bad?

And if you want to know what torture IS, so you can perhaps discern between proper, good, moral, interrogation, and BAD, EVIL, torture?

Well, sorry, you're just a torture excuser! Because according to Pope Mark, even to ask what is torture is to commit the grave sin of "tiptoeing up to the line." Why, everyone knows that if we just treat prisoners humanely and avoid doing anything that produces a visceral reaction when we see it in a picture, then all will be well.

No definitions, no line-drawing allowed. If you have any doubts about this or that practice, you're a torture excuser and should report to Pope Mark right away, and he will tell you whether his visceral reaction indicates torture or humane treatment. These things cannot be reasoned out, they must be sincerely FELT.

Oy, I need a drink.

No wait, drinking is ALWAYS the sole cause of drunkeness, and drunkeness is BAD. I'd better not have a drink because it may lead to being slightly tipsy, just a step away from being drunk.

And if I start trying to figure out how much I can drink without becoming drunk, I'm definitely just a drunkeness excuser and committing the grave fault of "tiptoeing up to the line" of drunkeness. No, best just to forget about it and ban drinking altogether.

UPDATE: Post modified to remove assertion that no Catholic writers deny that torture is always intrinsically evil, see especially the renowned Fr. Brian Harrison, who has the temerity to suggest that post-conciliar denunciations of torture do not have a substantial pedigree in Catholic thought and may not be as authoritative and absolute as Pope Mark wants to suggest. The protestants love their appeals to Scripture proof texts; some Catholics love to make every pet idea an irrefutable excercize of the Church's full teaching authority.

Beats having to come up with an actual argument.

MORE here and here.

Hollywood: Champion of the Downtrodden

Hollywood: brave voice for the persecuted... child molesters? Perhaps they've been heeding the call of some legal types to stop giving in to "social panic" and stigmatizing these offenders.

Sunday, October 08, 2006

Dear Seth...



From the sublime Chesterton (poetically speaking) to the ridiculous: One thing Sensitive Seth has on G.K. Chesterton (certainly not versification ability)--? Giving out sex advice on the internet.

Very professional indeed.



MORE: Just to be clear, it should be noted that not every public defender on the blogosphere took this bait: while we all might have salaciously desired to read anything the lovely Blonde Justice or Injustice Anywhere might have offered to write, they, along with definitely-not-lovely Feige and Skelly had the good sense enough to decline the offer even though all but Feige blog anonymously.

Friday, October 06, 2006

Timely

October 7 is the anniversary of the 1571 Battle of Lepanto, a notable victory of ragtag Christian forces over a numerically superior Turkish fleet manned in part by Christian slaves.

In commemoration of this near-miraculous valiant victory by the forces of Christendom over the Moslem invader, I offer you the following epic poem by G.K. Chesterton, recited at our dinner table yearly on this day:

White founts falling in the courts of the sun,
And the Soldan of Byzantium is smiling as they run,
There is laughter like the fountains in that face of all men feared,
It stirs the forest darkness, the darkness of his beard,
It curls the blood-red crescent, the crescent of his lips,
For the inmost sea of all the earth is shaken with his ships.
They have dared the white republics up the capes of Italy,
They have dashed the Adriatic round the Lion of the Sea,
And the Pope has cast his arms abroad for agony and loss,
And called the kings of Christendom for swords about the Cross,
The cold queen of England is looking in the glass;
The shadow of the Valois is yawning at the Mass;
From evening isles fantastical rings faint the Spanish gun,
And the Lord upon the Golden Horn is laughing in the sun.
Dim drums throbbing, in the hills half heard,

Where only on a nameless throne a crownless prince has stirred,
Where, risen from a doubtful seat and half attainted stall,
The last knight of Europe takes weapons from the wall,
The last and lingering troubadour to whom the bird has sung,
That once went singing southward when all the world was young,
In that enormous silence, tiny and unafraid,
Comes up along a winding road the noise of the Crusade.
Strong gongs groaning as the guns boom far,
Don John of Austria is going to the war,
Stiff flags straining in night-blasts cold
In the gloom black-purple, in the glint old-gold.
Torchlight crimson on the copper kettle-drums,

Then the tuckets, then the trumpets, then the cannon, and he comes.
Don John laughing in the brave beard curled,
Spurning of his stirrups like the thrones of all the world.
Holding his head up for a flag of all the free.
Love-light of Spain - hurrah!
Death-light of Africa!
Don John of Austria
Is riding to the sea.

Mahound is in his paradise above the evening star,
(Don John of Austria is going to the war.)
He moves a mighty turban on the timeless houri's knees,
His turban that is woven of the sunset and the seas.
He shakes the peacock gardens as he rises from his ease,
And he strides among the tree-tops and is taller than the trees,
And his voice through all the garden is a thunder sent to bring
Black Azrael and Ariel and Ammon on the wing.
Giants and the Genii,Multiplex of wing and eye,
Whose strong obedience broke the sky
When Solomon was king.
They rush in red and purple from the red clouds of the morn,

From temples where the yellow gods shut up their eyes in scorn;
They rise in green robes roaring from the green hells of the sea
Where fallen skies and evil hues and eyeless creatures be;
On them the sea-valves cluster and the grey sea-forests curl,
Splashed with a splendid sickness, the sickness of the pearl;
They swell in sapphire smoke out of the blue cracks of the ground,
-They gather and they wonder and give worship to Mahound.
And he saith, 'Break up the mountains where the hermit-folk can hide,
And sift the red and silver sands lest bone of saint abide,
And chase the Giaours flying night and day, not giving rest,
For that which was our trouble comes again out of the west.
We have set the seal of Solomon on all things under sun,
Of knowledge and of sorrow and endurance of things done.
But a noise is in the mountains, in the mountains, and I know
The voice that shook our palaces - four hundred years ago:
It is he that saith not 'Kismet'; it is he that knows not Fate;
It is Richard, it is Raymond, it is Godfrey at the gate!
It is he whose loss is laughter when he counts the wager worth,
Put down your feet upon him, that our peace be on the earth.
'For he heard drums groaning and he heard guns jar,
(Don John of Austria is going to the war.)
Sudden and still - hurrah!
Bolt from Iberia!
Don John of Austria
Is gone by Alcalar.
St Michael's on his Mountain in the sea-roads of the north

(Don John of Austria is girt and going forth.)
Where the grey seas glitter and the sharp tides shift
And the sea-folk labour and the red sails lift.
He shakes his lance of iron and he claps his wings of stone;
The noise is gone through Normandy; the noise is gone alone;
The North is full of tangled things and texts and aching eyes,
And dead is all the innocence of anger and surprise,
And Christian killeth Christian in a narrow dusty room,
And Christian dreadeth Christ that hath a newer face of doom,
And Christian hateth Mary that God kissed in Galilee,
But Don John of Austria is riding to the sea.
Don John calling through the blast and the eclipse
Crying with the trumpet, with the trumpet of his lips,
Trumpet that sayeth ha!Domino gloria! Don John of Austria
Is shouting to the ships.
King Philip's in his closet with the Fleece about his neck

(Don John of Austria is armed upon the deck.)
The walls are hung with velvet that is black and soft as sin,
And little dwarfs creep out of it and little dwarfs creep in.
He holds a crystal phial that has colours like the moon,
He touches, and it tingles, and he trembles very soon,
And his face is as a fungus of a leprous white and grey
Like plants in the high houses that are shuttered from the day,
And death is in the phial, and the end of noble work,
But Don John of Austria has fired upon the Turk.
Don John's hunting, and his hounds have bayed
-Booms away past Italy the rumour of his raid.
Gun upon gun, ha! ha!Gun upon gun, hurrah!Don John of Austria
Has loosed the cannonade.
The Pope was in his chapel before day or battle broke,

(Don John of Austria is hidden in the smoke.)
The hidden room in man's house where God sits all the year,
The secret window whence the world looks small and very dear.
He sees as in a mirror on the monstrous twilight sea
The crescent of his cruel ships whose name is mystery;
They fling great shadows foe-wards, making Cross and Castle dark,
They veil the plum├Ęd lions on the galleys of St Mark;
And above the ships are palaces of brown, black-bearded chiefs,
And below the ships are prisons, where with multitudinous griefs,
Christian captives, sick and sunless, all a labouring race repines
Like a race in sunken cities, like a nation in the mines.
They are lost like slaves that swat, and in the skies of morning hung
The stair-ways of the tallest gods when tyranny was young.
They are countless, voiceless, hopeless as those fallen or fleeing on
Before the high Kings' horses in the granite of Babylon.
And many a one grows witless in his quiet room in hell
Where a yellow face looks inward through the lattice of his cell,
And he finds his God forgotten, and he seeks no more a sign
-(But Don John of Austria has burst the battle-line!)
Don John pounding from the slaughter-painted poop,
Purpling all the ocean like a bloody pirate's sloop,
Scarlet running over on the silvers and the golds,
Breaking of the hatches up and bursting of the holds,
Thronging of the thousands up that labour under sea
White for bliss and blind for sun and stunned for liberty.
Vivat Hispania!Domino Gloria!Don John of Austria
Has set his people free!
Cervantes on his galley sets the sword back in the sheath

(Don John of Austria rides homeward with a wreath.)
And he sees across a weary land a straggling road in Spain,
Up which a lean and foolish knight forever rides in vain,
And he smiles, but not as Sultans smile, and settles back the blade...
(But Don John of Austria rides home from the Crusade.)

Thursday, October 05, 2006

More Jury Lessons

Can I get back to the law for a minute? Here is Part 4 of Windypundit's interesting story about his recent jury duty. Here are my earlier comments on his experience with links to Parts 2 and 3. It's great reading, especially for trial dogs.

In Part 4, Windy recounts the difficulty he and other jurors had grappling with the idea that someone was lying. Either the defendant lied in his testimony or the police officer did, because both accounts contained diametrically opposite facts.

This, I think, is a very common feeling for jurors, that they do not like to have to conclude that someone is a liar, and by their verdict, basically tag the person for it. Of course, as a prosecutor, I hope to convince them that if they believe the defendant's story, they have to conclude that the officer is lying; that is, I lay it out starkly. Then at least they are thinking about what acquittal might mean to the officer sitting in the gallery. (Of course, hopefully I have plenty of facts to point to to bolster my claim that the officer is truthful).

I had to chuckle when Windy relates that the jury "assumed" the defendant had a clean record because the officer ran the tags on his vehicle and approached him casually, not as if he were a hardened criminal. Of course, the jury is not "supposed to" concern itself with the defendant's prior record or lack of one. But in fact, on most traffic stops the officer has no idea who is actually driving or what their prior record is. Likewise, Windy's jury had a whole backdrop of knowledge about corruption in the officer's jurisdiction that filtered into their considerations. Again, litigators need to remember that jurors bring all kinds of suppositions with them, and these must be at least considered when presenting a case.

Windy also expresses some lingering doubts about whether they correctly decided the case, since the defendant seemed like a nice guy. This is perfectly natural, it seems to me, since the jury is not asked to decide beyond any shadow of a doubt, but only beyond a reasonable doubt. To have lingering concerns is therefore totally understandable.

Lastly, Windy had some interesting ideas such as giving the jury instructions on the elements at the beginning of trial so they could "check off" the elements as they're met. I would love to be able to do that, but suspect most defense attorneys would not like that since it would clarify things too much, and decrease their ability to play on jurors' faulty recollections of the evidence. I also like his idea that lawyers should be able to summarize what they think the witness testimony just established (or failed to establish) although it would be a nightmare for a judge to ride herd over many little arguments compared to one lengthy summation at the end.

The system in many ways does make it difficult for jurors to digest lots of information and then make them apply it to often arcane-sounding legal instructions.

One last note: Windy wonders why anyone would want to be a prosecutor, given that we have to try so many seemingly insignifcant cases, like the one he was a juror for. Simply put, few cases are meaningless to the people involved, and in Windy's case, no doubt the officer who had to get stiches felt the case was an important one. We can make sure a minor case is resolved without excessive punishment or reduce an over-charged case; then we do have important cases to try, like the murder sentencing I finished today, an emotionally exhausting ordeal of shepherding the victim's family through the process of seeing punishment meted out (42 years for 1st degree murder).

We prosecutors have the discretion (at least in my 11 years of experience) to make the right thing happen in a case; to satisfy a victim's need for justice; and to enhance our community's safety. Not a bad way to make a meager living.

Pope Mark Teaches

OK folks, let's try this again: the Church Fathers, St. Augustine, the medieval schoolmen including St. Thomas, and all modern teachers up until the late 20th century have taught, taking Sacred Scripture at face value, that unbaptized children do not go to heaven.

Pope Benedict may decide to suggest instead a shrug of "well, we don't really know, let's hope for the best" but then, as if to undercut that very "hope," he will supposedly reiterate that "parents should still baptize their children quickly."

Now, some have come out and honestly denigrated the saints and scholars who were not as enlightened as we are: "Limbo was one of those items in RC theology just hanging around waiting for a post-Vatican II correction. Was delighted to hear that our Dear Holy Father apparently wants to excise it from our doctrine. Bravo B16- Friend of Babies and Children." Got it? Sts. Augustine and Thomas hated babies!

Some, only slightly less dismissive of any pre-2006 teachings, like Mark Shea, self-satisfyingly tell us that all is OK, after all, God is not bound by the sacraments, and I'm confusing grace with the sacraments. After throwing out non-sequiturs such as Dismas the Good Thief (baptism of desire) and the Holy Innocents (baptism of blood), Shea assures us that discarding Limbo is not to denigrate the need for grace. No, no... grace is of course needed, but baptism is not strictly needed according to Pope Mark.

Of course it is question begging and mere ipse dixit to posit that God miraculously intervenes to impart sanctifying grace to souls lost in Original Sin. There is no support for this unheard of theory in any traditional source of theology: Scripture, the Fathers, the great schoolmen or manualists, or the modern Popes. Even JP II and Benedict have not suggested this novel idea. The times we know it happened are miracles attested to in Revelation: the Immaculate Conception (attested to by Tradition) and the cleansing of St. John the Baptist (attested to in Sacred Scripture). Moreover, this claim contradicts the very point made by the modern Catechism Shea cites for the 'God is not bound by the sacraments' mantra: "The Church does not know of any means other than Baptism that assures entry into eternal beatitude."

Exactly. If the Pope wants to "hope" that something miraculous happens to take infant deaths out of the clear-cut case of 'no baptism=no salvation,' so be it. He would presumably be proposing a mere theory and leaving the faithful free to choose the Fathers', the scholastics', and his predecessors' teaching.

But what Pope Mark proposes is not what Pope Benedict proposes, a vague "hope against hope, leave it up to God" approach. No, what Shea and the combox magisterium propose is something new and radical, the positive statement that God can and does simply ignore His revelation in Scripture. Of course, if this novel teaching is true, why then would infant baptism be required at all? After all, God would certainly not "punish" the innocent child for the negligence of the parents who fail to have him baptized any more than he would "punish" the innocent stillborn child who cannot be baptized. So we're left with the Anabaptist solution, which is that infant baptism is not necessary and only those with the age of reason are held to the requirement to be baptized.

What other conclusion can be drawn from Pope Mark's teaching that God is not bound by the sacraments and will intervene to infuse grace into an innocent (of actual sin) soul?

Nevertheless, Shea and his combox cardinals will no doubt continue to re-write the Faith to suit their view of whom God should admit to heaven.

(For further on this by an entirely orthodox theologian, not a comboxer, see Fr. Brian Harrison, "Could Limbo be 'Abolished'?", wherein he argues persuasively that Limbo is no mere opinion but belongs to the authentic magisterium.)

No Surprise

The Communist, anti-American origins of the ACLU.

Wednesday, October 04, 2006

Church to Jettison Limbo?

The Catholic teaching of Limbo is nothing if not logical: if you accept the premises, the conclusions are sound.

1) Baptism (of either blood, desire, or water) is required for entry into heaven

“Whoever believes and is baptized, will be saved; whoever does not believe will be condemned” (Mk 16:16).

"The Lord himself affirms that baptism is necessary for salvation" (Catechism of the Catholic ChurchCC 1257).


2) Hell is reserved for those who merit eternal punishment

"In a flame of fire, giving vengeance to them who know not God and who obey not the gospel of our Lord Jesus Christ." (2 Thess. 1:8)

"But the fearful and unbelieving and the abominable and murderers and whoremongers and sorcerers and idolaters and all liars, they shall have their portion in the pool burning with fire and brimstone, which is the second death." (Rev. 21:8)

3) A child therefore who dies without Baptism cannot "enter into the kingdom," but neither can he be condemned to hell.

4) Therefore there must of necessity be an intermediate state of neither punishment nor beatitude.

Faced with this logical conclusion, the Church has always proposed the solution of Limbo. The Greek Fathers, St. Augustine, St. Anselm, St.Thomas Aquinas, the Schoolmen, and the predominant weight of Catholic opinion up until and through the 1960's all accepted this teaching and condemned the view that the unbaptized infant could gain heaven as Pelagianism, a view that denigrates the doctrine of Original Sin and attacks the real necessity of infant baptism.

Now it seems that Pope Benedict and a commission of theologians think that the teaching of limbo needs updating to a "'more coherent and illuminating' doctrine in tune with the modern age... It is understood the commission will recommend that Limbo be replaced by the more 'compassionate' doctrine that all children who die do so 'in the hope of eternal salvation'."

If all the Pope and the commission can offer is that they don't like the idea that Limbo sounds harsh and they wish God would let unbaptized souls into heaven, then sorry, I'll stick with the perennial teaching, which as seen above, is more authoritative than merely an "old theory" or "just a theory." Mark Shea's opinions about torture are "just a theory." The firmly stated teaching of Church Fathers, the Medieval Schoolmen, and the modern Popes up until the post-conciliar years are more than "just" a theory.

Let us hope and pray that the Pope does not denigrate infant baptism and fall into an effectively Pelagian view that would imply a denial of Original Sin. He no doubt feels denying Limbo would make parents feel better and ease people's fears about the fate of aborted children. In reality, he would be imperilling not just the teaching of Limbo, but the doctrine of Original Sin and the necessity of baptism for salvation, further eroding the already attenuated distinction between nature and grace.

But that is definitely another topic for another forum.

MORE on this here.

Gestalt Morality

Not to beat a dead horse... all the hand-wringing over the moral questions swirling around torture and agressive interrogation have to make one smile. For a decadent, post-modern, post-Christian, worn out Republic, we sure do spill tons of ink and shed lots of tears about how to treat our enemy (who coincidentally, cares nothing for such concerns as ours).

Nevertheless, I direct anyone interested in exploring the minutiae of these questions to this very useful summary of Catholic thinking about this topic. The bottom line appears to be that there is little actual guidance about this for conscientious Catholics other than "torture is bad; do not engage in it." The Church to this point has been content to state the broad principle, but has yet to flesh out the details: what constitutes torture; when do agressive interrogation techniques cross the line into torture; what ramifications for civil law enforcement might the answers to these questions hold?

One thing is certain: the view that holds "it is fundamentally wrong-headed to approach this question from the perspective of 'How close can we get to committing the grave evil of torture and get away with it?'" is a variety of Quietism that negates the whole endeavor to make distinctions in moral theology so that we can know "what it right and what is wrong." A police officer interrogating a suspect for 8 hours with only bathroom breaks might be on one end of a spectrum. Waterboarding might be on the other end. Simply repeating, mantra-like, "torture is evil" does not answer the question for the interrogator "what may I do in the (legitimate) endeavor to elicit information from a wrongdoer?" Not only are such lines important in and of themselves for moral reasons, but the government agents need to know what is civilly permissible. Hence the efforts on the federal level to codify some of these distinctions.

So to those who think even asking such questions converts one into a "torture apologist" or "torture excuser" I'm sorry, but I'll keep asking questions and making distinctions, which is in the great Christian tradition of moral reasoning. This is preferable to viewing provocative interrogation pictures or descriptions and then relying on one's emotional response to be one's moral guide.

Call it moral theology by gestalt.

Tuesday, October 03, 2006

Torture by Overstuffing

It seems that Gitmo detainees are suffering so much under the regime of torture that they're getting fat:
The meals include meats prepared according to Islamic guidelines, fresh bread and yogurt. With nearly all detainees fasting in the daytime during Ramadan, authorities have arranged for two separate meals — a post-sunset meal and a midnight meal — to be delivered after dark. Traditional desserts and honey are served during the Ramadan observances. The calorie intake at Guantanamo is well above the norm for federal inmates in the United States — they receive about 2,900 calories a day, said U.S. Bureau of Prisons spokesman Michael Truman. He said weight gain in the civilian system does not appear widespread and that most inmates "keep themselves in pretty good shape."

Got that? These jihadists are being fed better than our common criminals! But as we all know it is all bad ol' immoral America on display down there, using torture, depravity, and immoral means of all sorts against the detainees. It's definitely NOT "club Gitmo." I guess the temperature change method, the sleep deprivation, the loud music, the making them stand on their feet for a long time-- you know, all those horrible inhuman tactics that supposedly constitute "torture"-- really make them build up an appetite.

Some people need to get a grip on reality and stop living in their overly dramatized self-important, magisterial, made-up worlds.

Monday, October 02, 2006

Jay pays tribute to one of my heroes.

Abolitionists Get it Wrong Again

Canadian anti-death penalty group gets major smack-down when their assertion of the absolute innocence of a convict is shown to be utterly, totally wrong when the guy is forced to give a DNA sample definitively tying him to the crime.

Legal Logic

Foley, a Republican [congressman] from Florida, resigned Friday after his alleged e-mail exchanges with a teenage male page were made public, and the House voted to launch an investigation. Foley apologized to his family and his constituents. Foley, ho co-chaired the Congressional Missing and Exploited Children's Caucus, did not ention the messages that brought him down. The six-term representative has pushed legislation to crack down on Internet child pornography and tighten tracking rules for sex offenders.


Maybe it's just that it's Monday, but I'm having trouble following the suggestions from some lawyer types (here, referring to "sex-offender panic;", here, and here) that because this guy turns out to be a predator that there is something wrong or misdirected with trying to crack down on child sexual predators. Kinda like saying that if a lawmaker is caught raping a woman we should repeal any rape laws he sponsored.

Maybe these apologists for pederasty are simply applying the maxim of ol' "three generations of imbeciles are enough" Oliver Wendell Holmes, Jr.: "the life of the law has not been logic, it has been experience."

There certainly isn't much logic in their conclusions about this incident.