Public Nuisance

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The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
-Ronald Reagan

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Friday, August 30, 2002
"You have not enough respect for the written word and you are altering the story."
- Kafka, "The Trial"

Yale pundit Mitch Webber criticized this Times op-ed, saying:

In today's NYT, conspiracy theory enthusiast James Bamford begins his guest column with a comparison of Ashcroft's Justice Department to the irrational, inscrutable law courts depicted in Kafka's The Trial....

Granted, it's a catchy hook. Too bad the column's content doesn't even make a pretense at validating the analogy.

As Bamford himself quotes, The Trial opens with this famous sentence: "Someone must have been slandering Josef K., for one morning, without having done anything truly wrong, he was arrested."...

There's a big difference between prosecuting the innocent - as is done in "The Trial" - and searching (arguably) over-zealously for the guilty

In arguendo does a nice job of discussing some of the political reasons why Webber is wrong. Granting that protecting the Bill of Rights is more important than literary criticism, as a long-time reader of Kafka I was more struck by how badly Webber misses the point on literary grounds.

I guess it's no surprise that students aren't expected any longer to have actually read the books they cite. But at Yale, they're apparently so po-mo that you aren't even expected to skim the Cliff Notes before you make a cite, or criticize someone else's. I wonder if Mitch ever got past that first sentence.

If he got far past it, he would know that "The Trial" is not about 'prosecuting the innocent'. We never find out if Joseph K is innocent, because neither the reader nor K ever has any knowledge of what he has been charged with. K is so far from knowing the charges that he wants to,

Draw up an written defense and hand it in to the Court. In this defense, he would give a short account of his life, and when he came to an event of any importance explain for what reasons he had acted as he did, intimate whether he approved or condemned his way of action in retrospect, and adduce grounds for the condemnation or approval.

A defense before Kafka's Court must be this vague because,

The proceedings were not public. They could certainly, if the Court considered it necessary, become public, but the Law did not prescribe that they must be made public. Naturally, therefore, the legal records of the case, and above all the actual charge-sheets, were inaccessible to the accused and his counsel.... In such circumstances the Defense was naturally in a very ticklish and difficult position. Yet that, too, was intentional. For the Defense was not actually countenanced by the Law, but only tolerated, and there were differences of opinion even on that point, whether the law could be interpreted to admit such tolerance at all.

It is the helplessness of Joseph K before the Law and the Law's authority, capricious, unknowable, yet omnipotent, that is the theme of "The Trial".

This theme is indeed supported in Bamford's column, making the Kafka 'hook' entirely appropriate:

With increasing speed, the Justice Department of Attorney General John Ashcroft is starting to resemble the "always vengeful bureaucracy" that crushed Josef K. Recently, in two federal cases, the Justice Department argued that it is within the president's inherent power to indefinitely detain, without any charges, any person, including any United States citizen, whom the president (through the Justice Department) designates an "enemy combatant." Further, the person can be locked away, held incommunicado and denied counsel. Finally, Mr. Ashcroft argues that such a decision is not subject to review by federal or state courts. This situation is beyond even Kafka, who in his parable of punishment and paranoia at least supplied Josef K. with an attorney.

The Kafka theme is less directly referenced in the main section of Bamford's article, which focuses on the Foreign Intelligence Surveillance Court (FISC), but it is there on a careful examination. FISC approves requested wiretaps for intelligence (not law enforcement) purposes. Obviously the person whose phone the government wishes to tap isn't informed of the FISC proceedings.

Ashcroft is seeking to tear down most or all of the distinction between intelligence and gathering evidence. In the Ashcroft procedures, it is entirely possible that an individual could be tapped with approval of FISC, declared an enemy combatant on the basis of that tap, then arrested and held indefinitely as a combatant. The first knowledge they would have of being under investigation would be their arrest, the only judges involved would be the FISC judges (who almost never refuse requests), they would not ever necessarily have the right to contact an attorney or face specific charges. The comparison to Kafka fits quite well.

Webber also objects rather strangely to the translation Bamford chooses to quote from. I am a fan of the Muir translation that Webber cites; it's what I read when I first read Kafka and what I used for the passages above. The Muirs' prose does generally flow more smoothly than later translations I've seen. But it is worth noting that the Muirs translated shortly after Kafka's death from early German editions. Since their work, far more extensive study of Kafka's texts has been done, which is important because 'The Trial', like much of Kafka's work, is drawn from manuscripts that Kafka himself never completed or prepared for publication. We don't even really know the correct order of the chapters. Webber's suggestion that Bamford's use of a later translation is somehow related to the frequent criticisms of Israel in his foreign policy writings is, to put it kindly, a stretch.