The Worst Crimes

Premise of a Proposal to Amend the Constitution.

Stephen Alrich Marshall, November 2008

Incest, rape, torture, genocide and ecocide are not the worst crimes. The worst crimes happen when incest, rape, torture, genocide and ecocide are invisible, when the criminal reaps the rewards of that crime — whatever such cruelty can yield — without accountability and punishment. The worst crimes combine in their execution with secrecy.

There are of course occasions for secrecy with which we would all sympathize. Among these are personal time, relationship time, business dealings to gain a competitive advantage, bank account numbers and passwords, and the code which unlocks the launch button at strategic command. Secrecy, in these cases, allows people to form emotional identifications, can contribute to the community prosperity and diversity, diminishes crime, and promotes our safety. There are many occasions when secrecy promotes well being, because people and nations are frequently malevolent, and might use a vulnerability to destroy the other, who would do better to shield it from view.

But secrecy, whether intentional or fortuitous, can also protect a criminal from the consequences of a criminal act. As such, the criminal planning a crime, something legally dubious, or merely unpopular, and seeking to escape consequences, seeks a way to screen his act from scrutiny. Of course, if an ordinary, legal, acceptable screen, that which is least likely to arouse suspicion, is available, the astute perpetrator will try to erect these screens, and do so with a plausible demeanor of innocence. If we are not expecting a deceit, if we are determined that trust is justified, the valid necessity of privacy can be easily hijacked to provide a screen to cover a crime.

So what are we to think when someone is extremely secretive? Does this person merely feel an unusual need for privacy, an exaggerated mistrust of others with which we might otherwise normally sympathize? Or do they have nefarious purposes, and have in mind to use the usual deference we show to each other to execute a crime? If no one ever emerges from behind his screen of privacy with a bloody face, with screams or mental anguish, if this someone is never caught in deceit, theft or violence, is there a problem? Is it anyone else's business? Typically we would avoid such sensitive questions, even if we have them, because with this much information, any one of us could be held up for scrutiny, and to protect our own privacy, we just don't ask.

But what if it is our business? What if damaged people are emerging from behind the screen, what if any one of us could be taken behind the screen and damaged? What if, after a long series of otherwise un-momentous inconsistencies and logical fallacies, we discover the cupboard is bare, the water is spoiled and the firewood is piled up around a blood splattered car? Then we might wonder, and demand to know, "Is this privacy or secrecy?” and “What exactly are you doing?” We have suddenly learned to not trust this person, and to have no faith in his intentions.

And what if it is the business of governing, and we are the governed? What if someone demands concealment of the inner workings of his administration, and then starts a war we didn't need to enter for shifting reasons that were never true? What if someone spies on citizens and covers it with secrecy? What if someone breaks law after law, claiming he has the authority, but no, he can't say why the law has to be broken, and we cannot even sue for relief because everyone who could testify is forbidden to speak of it? What are we to think when it is our government that requires secrecy? We hope the reasons are good, we hope that laws will not be broken, we hope that the secrecy will be used only to protect our own vulnerabilities, we hope that this secrecy will not be used to mislead us, deny justice, or drain the public purse. We hope and, in the Bush administration, we were profoundly disappointed.What are we to think when the purpose of the secrecy seems to be to avoid accountability?

If in the opening days of the Obama presidency we look back at the Bush administration and ask “Why were you so secretive?”, and “What exactly were you doing?”, and despite the “bloody faces”, we can get no account, no prosecution and no justice, then we might want, in any case, to insist on new law, to check these abuses in future administrations.

The core issue is democracy. Democracy is in the first place, a social construct whose essential purpose is to make power serve the greater good, to make those who wield power answerable for the well being of those who invest trust in them, to bring the powerful into the service of the people from whom that power flows. When accountability fails, democracy is at risk.

In the instance of the Bush administration, minor ambiguities in the US Constitution were used, without effective pushback, to justify or hide illegal behavior. And when behavior was plainly illegal, plainly violated the Constitution, the public had no recourse, had no effective legal remedies, that would force the administration to remain within the law, short of a bruising and impractical impeachment. The Bush administration casually kited over accountability, simply ignoring the law, making clever explanations, or by spinning ambiguities in the Constitution to favor his purposes.

As a consequence, we as Americans suffered humiliation and violations of our civil rights, have seen people murdered and humiliated in our name for reasons we would never confess to, have seen our collective wealth consumed to fulfill arrogant ambitions, have watched as our national pride as a democratic and principled society was trashed, because, except by that cumbersome and difficult process of impeachment, we have no way to demand an accounting. As a nation that esteems “the rule of law”, we had no law, with an effect short of firing our President and Vice President, to protect us against an executive who would violate the law

If you were as outraged, as I was, by the blatant and egregious violations of the Constitution and law, that were perpetrated by the administration of George Bush, I think you will agree that the time has come to answer the question, "How can we prevent these crimes?"

We are guided by empirical facts and overarching principles, from which I derive for your consideration a proposal to amend our Constitution.

To view the actual Constitution, go to www.usconstitution.net, or visit others of the resources listed in the margins of this blog.