Posted on by Stephen Tuck

Jon Hammar and Mexican Law

Late in 2012, Fox News covered the story of former Marine Jon Hammar, detained in Mexico on a firearms charge.  This prompted me to wonder whether, in place of a confrontation with the Mexican government, there may be a solution recognizing the legitimate interests of both sides.  This was what I came up with.

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Foxnews, with its usual eye for a story, has been drawing attention to the troubling case of former Marine Jon Hammar.  Mr Hammar, a Florida native, has been held in a Mexican prison on firearms charges since August.  The charges against him are less than stunning: it is alleged that he entered Mexico with a shotgun of which the barrel was one inch shorter than was lawful.  Not unreasonably, Foxnews has pointed out that this is a trifling matter for which to hold a veteran of Afghanistan and Iraq.  A letter from the Mexican ambassador, however, denies that the prosecutor can exercise any discretion.

There may be more to Mr Hammar’s case than the story of an unfortunate ex-Marine and an antique shotgun.  Some of the Mexican firmness might be traced to another case entirely: that of Jose Medellin.

Some readers may remember that the thoroughly repulsive Mr Medellin was executed in Texas in 2008 for the rape and murder of two teenage girls in Houston in 1993.  When arrested, police gave him his Miranda warning before he provided a confession.  The police omitted to advise him that, as a Mexican national, he was entitled under the Vienna Convention to contact his country’s consulate.

Mexico brought suit in the International Court of Justice, alleging that the United States had breached its obligations under the Convention.  In 2004, in a case titled Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) the ICJ held that in 51 cases, including that of Mr Medellin, the US had breached the Convention and ordered it to review and reconsider the Mexicans’ convictions and sentences.

Mr Medellin ultimately appealed to the US Supreme Court on the basis of the ICJ decision.  In 2008, however, in Medellin v Texas the Supreme Court found that judgment in Avena was not enforceable in American law in the absence of statutes implementing it.  Counsel for the State of Texas, Solicitor-General (and now Senator) Ted Cruz subsequently wrote in the journal Human Events that “[t]he Supreme Court’s decision was a victory for the State of Texas, but, even more importantly, it was a victory for the American people … Had Medellin prevailed, American sovereignty and independence would have been gravely undermined“.  Unfortunately, this protection of American sovereignty came at the cost of a diplomatic humiliation for Mexico.  It is hard not to speculate that the startling inflexibility shown towards Mr Hammar, then, might be less about Mexican gun laws and more about payback.

How might this help Jon Hammar?  If one of the drivers of Mexican concern is some perceived slight to national pride, then perhaps his situation can be improved by accepting the legitimacy (as opposed to the fairness or otherwise) of the criminal process.  With this concession it becomes intellectually possible to argue for an approach less arduous to Mr Hammar.  At the least, it would be easier to argue credibly that he should be remanded to an American (perhaps, Floridian) jail pending trial.  More imaginatively, perhaps it could be arranged for the criminal charges to be dealt with by an American court applying Mexican law, in the same way an American court dealing with a commercial dispute may face a situation where the parties have agreed that the law of Canada or Britain shall apply.

It would be difficult to argue that an honorably discharged veteran should be held in a prison as Jon Hammar is.  But that sense of outrage should not stand in the way seeking creatively to improve his situation.  

Posted on by Stephen Tuck

The South and 2012

This was a short article I drafted in response to some news reports which cast an interesting light on the wave of secessionist thought that followed the re-election of Barack Obama in 2012.  My essential idea was that the neo-secessionist movement tended to be drawn to a past which may not have in fact existed.

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December 21 has come and gone and 2012 has not marked the end of history.  That crisis past, this is a good moment to ask what this year might mean for history.  It has certainly been an illuminating year for the history of the South.

President Obama’s reelection brought a wave of talk of secession.  There is nothing new in this.  Disputes over states leaving the Union preceded the Civil War (they were certainly alive during the War of 1812).  They  catalyzed the War between the States and were barely stilled by the Supreme Court’s 1869 decision in Texas v White.  They reverberate in the present in the online petition of “Michael E.” of Slidell, La, for that state to be allowed to secede.

Mr E‘s petition does not tell us much about what drives present secessionist thinking: he simply petitions the Administration to allow Louisiana to withdraw from the Union, quoting from the Declaration of Independence.  More insight comes from the League of the South’s journal, Free Magnolia.  This journal’s articles suggest present hopes for secession are driven much less by race than by nostalgia.  By way of example, one writer, Ms Laura Tesh, laments the perceived fading of Southern culinary habits –

How deeply have we been assimilated to alien Northern values and culture, even in little things? Today, even in the South, grocery stores have shelves of plain flour and in a hidden corner, self-rising flour. … Many Southerners eat lunch (the noon meal) and dinner (the evening meal), rather than dinner (the noon meal) and supper (the evening meal).

Equally upset was Mr Franklin Saunders:

Not so long ago Southerners were famous for their forms and manners. Even the humblest and poorest dwellings observed their daily forms, especially at table. Woe betide the child who ate before the blessing, and greater woe yet waited for him who reached for the fried chicken before the preacher. Men opened doors for women, and ne’er a cussword passed their lips in female company. The F-word was unspoken, let alone the now-ubiquitous twelve letter adjective-pronoun-noun-verb-adverb. One slip and you were branded for life as unworthy of decent company.
 
In the same journal Mr Saunders applied the same thinking to economics, urging commerce based on local trade –

 

Restoring the farmer’s freedom to sell anything grown or processed on his own farm at his own risk and the consumer’s own risk. Scare you? Not me. I’ll take my risks with my local farmer whom I know over gigantic corporations whom I don’t know…

 

Not only did 2012 bring current secessionist talk to light for examination, it brought events which threw doubt on whether that nostalgia is well-founded.

The Baton Rouge Advocate, for example, recently covered an event organised by that city’s Interfaith Federation discussing the coming of Buddhism (particularly with the arrival of the Vietnamese community) and Islam, among other faiths, to the region.

Symptom of change had, however, already arrived in the South: another story from Alexandria, La, this recorded the preservation of a historic bank building in that city.  The bank was built in the mid-1950s in the style of Frank Lloyd Wright, a “mid-century modern design that then was considered ahead of its time”.

Modernity, though, had arrived even before that:  The New Orleans Times-Picayune this year reported a tourism award to Domino Sugar’s refinery at Chalmette, La.  The refinery in question is the largest in the Western Hemisphere and has operated since before World War One.

2012, and the wave of secessionist thinking it brought, brought up for examination some long-standing issues of history.  At the same time, the news from the South itself suggested that the history itself had moved on.

Posted on by Stephen Tuck

A tyranny of memory?

It’s not often history grabs more than a small slice of the public attention, but this week it did. The incident said something interesting about the relationship between the state and the past.

Military historian David Horner this week revisited the meaning for Australia of the Kokoda campaign. By way of background, what can be said uncontroversially is that in the second half of 1942 Australian and Japanese troops fought a series of engagements on the Kokoda Track (or Trail) in New Guinea. It can also be said uncontroversially that public memory (that is, that of the public generally) holds that this represented Australia holding off an inevitable Japanese invasion, while the preponderance of professional historians consider that there was no Japanese plan for an invasion at that time and that Japanese consideration of an invasion represented little more than thought balloons.

What has been revealing about this latest face-off between these world views is the relationship between the lay public and this particular aspect of the past.

I think it can fairly be said that the reaction from the public, or (which is not quite the same thing) the reaction from the sections of the press which love to help the public feel outraged, was resentment. The Herald Sun’s editorial made little effort to engage with the historyical question, merely saying grudgingly that

Military historian Professor David Horner has every right to opine that Australia has developed a tendency to exaggerate the significance of our country’s military campaigns, including the Kokoda battle.

It’s his belief, and freedom of speech was among the democratic values more than 100,000 Diggers have given their lives to protect.

Mr Derryn Hinch, on radio station 3AW responded with contempt

I guess I should assume that the Japanese bombers who hit Darwin were really lost and their real target was Argentina. That the mini-sub found in Sydney Harbour was a misguided tourist. That the Battle of the Coral Sea was really an America’s Cup event. And that currency found in Japan to be used in Australia post-invasion was really Monopoly money for post-war entertainment. …

…

At the weekend some proud World War II veterans – 90 years old and older – were in Egypt commemorating their brave mates who died in the desert in the Battle of El Alamein 70 years ago.

Don’t tell the professor. He probably thinks they were playing in a sand pit

The lay public’s own reaction was even less restrained. In the Herald Sun’s letters page on 23 October 2012 one writer said that “[t]o revise history now and claim there was no danger of an invasion … is an insult to the memory of those Diggers whose courageous gallantry maintained the freedom we enjoy today”. Another asked “How dare anyone undermine or underestimate (sic) those of our Australian defence (sic) who were serving Australia at Kokoda”

Writers with the benefit of online anonymity were even more vitriolic. On 3AW’s website one writer described Horner as a revisionist, a term usually reserved for the likes of the Holocaust-denying David Irving. On Sydney’s radio station 2UE, “Peter” said –

Yet again history being re-written by some dumb arsed propeller head hoping that the reaction will boast sales and try to legitimatise his misguided take on history! God save us from the PC loony left!

And “Fuji” said

On 19 February 1942 Darwin itself was bombed. Japanese fighters and bombers attacked the port and shipping in the harbour twice during the day, killing 252 Allied service personnel and civilians!! Evidently the $$$Professor David Horner is obviously talking through his dumb arse.

The fundamental problem is of course that Professor Horner’s assessment is based on the documentary record, and the public response is based, in essence, on the invasion story as something akin to an article of faith.

The more interesting light is thrown by the public reaction as a foundational form of a more troubling current phenomenon: the use of the machinery of the state to create a definitive history, where historical argument alone may not be able to stand on its own. One can see this trend in the attempts to secure a pardon for the Australian war criminal Harry Morant. One can also see it in the review by the Supreme Court of Victoria of the trial of Colin Ross, convicted in 1922 of the murder of a child, long after the trial and appellate judges, witnesses and legal representatives were unable to speak for themselves.

The creation of “endorsed” histories, it seems to me, treat the documentary record, and any differing analysis to be extracted from it, as something to be pushed down a memory hole. For this reason, reading the responses to Horner’s theories, I wondered if some aspiring politician may feel that there was mileage in pressing for, as Prime Minister Keating perhaps began to do, an “endorsed history” of the events of 1942. At which point, I had the uncomfortable sensation of hearing voices insist: “Oceania is at war with Eastasia. Oceania has always been at war with Eastasia”.

Posted on by Stephen Tuck

On Spanish and English

This was a letter I sent to a couple of newspapers in Arizona in connection with the matter of Alejandrina Cabrera, a US citizen who was deemed ineligible for public office due to be principally fluent in Spanish rather than English.  This is a matter where there’s room for a range of views; in my particular case I thought it was more interesting for the light on the debate which can be shed by a knowledge of history.

* * * * *

Alejandrina Cabrera’s recent barring from running for San Luis city council on the grounds of speaking insufficient English  intrigued me.  I am presently  researching American legal attitudes towards citizenship after the Revolution.  History would require only that a public official speak enough English to discharge their duties before allowing them to exercise that particular right of citizenship.  After the Revolution, American courts focused on concrete realities in these questions.  In Cummington v Springfield (1824), a redcoat who was captured during the Revolution and after release remained in America, thereby became a citizen.  In Caignet v Pettit (1795), a Frenchman who did not support the French Republic and settled in the US ceased to be a French subject.  In each case, the practical realities were critical.  By extension, while a prospective public official like Ms Cabrera should understand enough English to discharge her duties, no higher standard should be required.

Posted on by Stephen Tuck

A use of history to illuminate the present

This piece was submitted (unsuccessfully) to a couple of French newspapers.  It looked at connections between present criminal justice debates in Australia and Ancien Regime criminal justice. In this case, I consider that the past threw a clear light on the present.

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On peut dire qu’un spectre hante l’Australie: le spectre de la Révolution française.  Si le moment clef de la Révolution a été la rejection des trois états de la France et leur supercession par l’Assemblée Nationale, peut-être le moment clef pour l’Australie moderne se montrer a ce moment, quand on peut dire que le tiers etat paraît devenir incapable de gouverner.

Cette possibilité presente par voie d’un meurtrier.  Le 9 août 1987 un ancien soldat, M. Julian Knight, a fait un massacre dans le cité de Melbourne.  Sept personnes ont été tuées; 19 ont souffert des blessures.  Devant la Cour Suprême de l’état de Victoria, M. Knight s’est declaré coupable des meurtres et des tentatives de meurtre.  Le 10 novembre 1988 M. le Juge Hampel lui a prononcer qu’il serait imprisonner pour toute sa vie, mais qu’il peut être relâcher dans le communauté apres qu’il a servi 27 années.

Ces 27 années sont presque passées.  En août 2012, apres la Conseil qui peut approuver son relâchment a refusé son application sortir de la prison, M. Knight a declaré qu’il appellera au Cour Suprême.  Un avocat très distingué, M. Robert Richter, a dit qu’il est prêt lui representer.

Cet affaire a été noté par un présentateur du radio, M. Derryn Hinch.  Ses auditeurs ont exprimés leur horreur face à la situation.  Sur le site web du station de radio 3AW, M. Richter a été appelé ‘lâche’ par “Mandy”, qui paraît ignorant qu’un avocat – au système de droit commun – doit réprésenter chaque personne qu’il peut aider.  “Lily” a declarée “rétablir la peine de mort et le juger à nouveau”.  Et “Appauled” a dit “j’espère qu’un membre de la famille d’une victime met une balle dans Richter et Knight”.  Le quotidien Herald-Sun demandait que le Parlement amend la loi afin de garantir que Knight rester prisonnier.  Et le Premier Ministre du Victoria, M. Ted Baillieu a dit que le gouvernement considera les mesures a ce but.  Les demandes par ces citoyens pour l’emprisonnement législative de M. Knight ne pas tiennes comptes, il paraît, qu’un gouvernement qui peut imprisonner un meurtrier seulement au nom de la sécurité publique (et pas en conséquence du procés criminel), peut aussi imprisonner un journaliste, ou un membre du Parlement, ou bien “M. Dupont” pour la même raison.  Il n’y a pas de raison pour qu’ils le pense: Statistiquement, 46% de la population australienne est fonctionnellement incapable de lire.  Donc, comment reconnâitre-t-ils la lettre de cachet, quand ils ne peuvent pas lire de l’ancien regime?  Comment reconnaitre-t-ils l’homme au masque de fer, quand ils croient que l’Alexandre Dumas joue pour Olympique de Marseilles?  Il semble que, en Australie au moins, il y a un déficit chez le tiers état de la capacité à participer dans l’administration de la patrie. 

On veut dire, toutefois, que jusqu’à présent personne n’a demandé “Quoi sont le premier et le deuxième états?”

Posted on by Stephen Tuck

On Civil War Anniversaries

I initially wrote this piece as a wave of Civil War anniversaries unfolded in mid-2012.  My own feeling is that one of the strengths of American discourse is the importance in it of history; unfortunately this is also one of its weaknesses: there is a real tendency for it to become what Paul Cohen called “History as Myth”; and in particular a prefiguration of whatever debates happen to be current at the time of writing.  This, I think, does a disservice to the men and women caught up in the actual event, and this piece was a reaction against that tendency.

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In 2011 the long 150th anniversary of the Civil War began to unfold.  This year alone commemorates the inauguration of Jefferson Davis as President of the Confederacy, the Battle of Shiloh, and the appointment of Robert E. Lee to command of the Army of Northern Virginia.

But along with the lists of battles and elections, movements and proclamations, the coming of the long anniversary is an chance to rethink the war itself.
 
The War’s history includes a seemingly unresolveable debate.  Was it all or chiefly about slavery (as Professor James Loewen argues)?  Was it a crusade against self government below the Mason-Dixon line (as the League of the South would have it).  Both perspectives not only miss the mark, but misrepresent it.  One can argue that the causes of the war, and the incentives that perpetuated it, are fundamentally unknowable.
 
Why unknowable?  Because motivations are almost always unknowable and unfixed.  Granted, the Confederacy’s legislatures and secession conventions made declarations of reasons for withdrawing from the Union.  But how far did those declarations reflect the true aspirations of the members.  Did a particular delegate actually endorse states rights?  Was another motivated by slavery?  Was a third trying to perpetuate the legacy of the Revolution?  Did others want only to stay on what appeared the right side of history?

The same question arises about what kept the conflict going.  Let’s assume that the young recruit in the 14th Maine Infantry enlisted to stamp out slavery.  Did he keep that passion beyond a few weeks?  Did he stay through the campaigns in Louisiana and Virginia simply out of loyalty to his friends or for the prospect of pay?  The letters and diaries of famous and obscure participants offer a window into their thinking and motivations from time to time.  There always remains, though, the tantalising prospect of more precisely knowing how these shifted day to day and year to year.
 
Rethinking the war this way draws into focus a more finely woven picture of its causes and drivers.  But its merit goes further.  It spares the long-dead participants from the stilling of their stories and songs and experiences.  It prevents the present from too-readily putting its own words and thoughts in their mouths.  Making the war “all about preserving slavery” converts every lowly member of the 51st Georgia Infantry into a collaborator in a vast atrocity.  Seeing it as a crusade against a too-free people forces every young adventurer of the 2nd Rhode Island Volunteers to goosestep into a Dixie Poland.
 
The Civil War need not, and perhaps should not, be treated as a battle of ideas and abstractions with contemporary relevance.  Compassion says that it should also be treated as a conflict of people with virtues and follies and complexities.  Reconceiving it this way spares its participants from unwittingly articulating virtues they may not have held and ideas for which they may not have died.  And it may save a fascinating historical event from being eternally a stage on which to play out the debates of the present.