November 30, 2004
Coercion
The comments thread on my post on baby sale/adoption has made me very happy -- our readers are able to politely disagree with each other, a rare feat on most blogs. Especially the comments by Raoul and Pouncer have given me food for thought and expanded my views - although I stick with my analysis of the Romanian adoption law as very stupid.
Since I trust that I can write about controversial issues without flames shooting out of my laptop, let me tell you about a disturbing law suit in Germany which has been on my mind a lot.
In September of 2002, the 11-year-old child of a wealthy Frankfurt banker is being abducted. The parents pay the one million Euro ransom but Jakob von Metzler is not freed. A suspect is quickly found but he says nothing. Four days after Jakob went missing, the situation escalates. The chief of Frankfurt police orders to threaten the suspect Magnus Gäfgen with torture unless he reveals the location of the child. The threat works, Gäfgen leads the police to the child. Jakob is dead.
This week, the chief of police who ordered and the investigator who actually carried out the threat are standing trial for coercion, and Magnus Gäfgen is the prime witness. His account of the threats is chilling. No matter the circumstance, people cannot be treated that way.
Or can they?
It took over two years for the trial to happen which shows how intrinsically complicated and painful this issue is.
Our Basic Law (our constitution) absolutely prohibits torture (and the threat of it). Article 1 states: Human dignity is inviolable, thus torture is unacceptable. But Article 1 also bases on the judeo-christian idea of the holiness of life. Jakob's life had to be saved -- but with all means?
It's up to the judges to decide what weighs stronger -- the rights of Magnus G. or the desperate attempt to save Jakob's life. It seems almost impossible to apply legal logic to a case where, as the Zeit puts it, normative aspects collide -- namely, inviolability of life and saving of life.
German jurists and publishers warn of a German Abu Ghraib. If Mr. Daschner, the chief of police, were to be acquitted -- would that break all hell loose in German police stations? (The answer is: probably not. Suspects won't be tortured, threatened or abused in Germany, no matter what the outcome of the trial. We're too much of a constitutional state.)
Politicial enfant terrible Oskar Lafontaine defended Daschner on TV and in a column in the German Bild Zeitung.
Lafontaine very consciously made his comments in a situation where the legitimisation of torture is not a theoretical issue. For weeks, not a day has passed without disclosures about the sadistic methods employed to defend “freedom and democracy” in the “war against terror.” And if torture is acceptable in the case of a kidnapping, supposedly in order to rescue a human life, it is all the more so if a large number of lives are threatened by terrorist attacks. This was the explicit argument of Jörg Schönbohm. Lafontaine’s demagogical remarks on TV follow the same logic.
But since we are a constitutional state, Mr. Daschner and officer Ortwin Ennigkeit, will very likely not be acquitted.
The Zeit finds an interesting loophole for the two policemen, though. Article 60 of the Basic Law gives the president "the right to pardon" in individual cases. The Zeit states that legally, the two men were doing wrong. But they tried to save a life. Maybe, says the Zeit, the president should execute his right in this case.
The Zeit has two more very good articles on this case, here and here. If you can read German, that is. These articles illuminate very nicely how controversial the topic is and how the heroic myth around Daschner, who was forced to decide between two horrible possibilities, is breaking apart.
Two-thirds of all Germans side with Daschner, though.
Me, I'm very torn. I can understand the anxiety, the desperation that would drive you to threaten, yes, even actually hurt someone if you think you can save a child's life with this act. Imagine it's your child. I could do worse than just telling someone I would lock him up with big black guys who would rape him.
But it's not right, and this is why we have a police, and laws, to keep order and not have anarchy. This is exactly what we have the Basic Law for -- to tell us how to behave when our instincts scream too loud for reason to be heard.
(It also seems that Daschner was actually prepared to have Magnus G. tortured, "under medical supervision". If that's the case, then he must be sentenced.)
The whole case is very sad and among the legal mantraps, one should not forget that little Jakob is dead. He was killed on the very first day of his abduction -- because he knew his abductor. Magnus G. was a friend of the family.
Posted by claudia at November 30, 2004 09:24 AMMy, all this *and* hedgehog lanterns, too! Yours is truly a delightful blog on many fronts.
It looks rather like this question boils down, as so very many others do, to "Do the ends justify the means?"
Only if you want to be the bad guys.
That's how you can tell the good guys from the bad guys. The bad guys torture their prisoners. The bad guys shoot unarmed opponents in the back. The bad guys take ransom money and don't deliver the kid. The bad guys do that stuff because the bad guys feel results are more important than the process used to get to the results.
The good guys honor a surrender, no matter how much they want to kick the *Y$#T@ in the teeth. The good guys treat their prisoners fairly, even though they know full well that favor is not being returned towards their own troops. The good guys do not shoot unarmed opponents. The good guys do not kidnap, but if they did, you'd get your kid back, unharmed, once you handed over the money.
It isn't easy being one of the good guys and, though nobody likes to admit it, sometimes being one of the good guys is not a strategy that maximizes human happiness and safety and stuff. It'd be pretty to think so...
Look at the Buffy episode where Giles kills Ben/Glory. (Er. I hope you've seen enough Buffy for this to make sense.) Ben, who is an innocent, a doctor, a GOOD GUY, happens to also be inhabited by the evil and malignant Glory. Glory is gunning for the usual enslavement of humans, ruler of the world demonlord sorts of goals and she takes over Ben and does what she deems necessary to gain entry to this world. What Glory deems necessary usually involves human pain, suffering, and death. Ben is pretty much an unwilling portal for Glory -- he's not doing it on purpose and he can't keep her out.
Now, Buffy is one of the good guys, and she can't cold-bloodedly dispatch one innocent to rid the world as a whole of a Very Bad Thing. (And the show puts it in just those terms. Buffy is a very moral, educational show at times.) But Giles... he's not the hero... and he kills Ben. The good guys don't do stuff like that, even when it's clearly necessary.
And the people like Giles? Are they the good guys? Not exactly. They do things that the good guys don't do.
Are people like Giles necessary? Yes, I think so. But they're not the good guys and they should never, ever get to act with impunity. It's all about checks and balances.
Should their actions go unpunished? No. The price for doing the necessary bad-guy activity (like killing an unarmed, defenseless innocent like Giles killed Ben) has to be paid, and all such acts should come dearly.
Are we then trusting to the... effective martyrdom of the Giles-like people, to put themselves and their sacred honor on the line to do the correct bad-guy activity if they really, really think it needs to be done and are willing to pay the price for doing it? Yes. We are.
Is that right? Dunno. It's the best I can do and it lets me look in the mirror in the morning.
Am I a good guy? I try to be. Sometimes, I'm not. Sometimes it's more important that something gets done... and if that's how I see it, I do what is necessary and plan on taking my punishment afterward.
Magnus G. is a twisted, sick individual with absolutely no morals whatsoever. He should be put to death for, among other things, having the chutzpah to accept ransom for a dead boy.
Jakob was an innocent boy who certainly didn't deserve to die.
Daschner was wrong. He would still be wrong even if his methods had recovered Jakob alive. He is guilty. I cannot imagine how he could possibly, honorably, plead 'not guilty'.
Would I have done what he did? Probably not. I'd have figured the child was dead from the get-go. They frequently are, in kidnappings.
Would I torture in another, more-useful circumstance? I might... but if I did, I'd step up and take my lumps afterward.
Posted by: teep at November 30, 2004 04:36 PMTo me this is the primary reason for juries.
The government MUST prosecute crimes -- especially of goverernment enforcers of the laws all others must subject themselves to; and even in the hard cases where the "good" choice and the "legal" choice are opposed. The government must pursue justice.
I see no particular reason why a randomly selected jury of representative "good" and "law-abiding" citizens can't or should not -- once in a while in extreme circumstances -- decide in favor of mercy instead of justice. Perhaps to shut their eyes to the fact -- perhaps to acknowledge the crime but impose less-than-mandated, even trivial, penalty.
Most systems also have authority to pardon or parole vested in the king or head of government. So Richlieu can issue letters of carte blanche -- "What has been done has been done upon my order and for the good of France..." This is perhaps a necessary authority for the orderly administration of a populous society, but it seems fraught with opportunities for abuse.
Juries, too, mistake or abuse their temporary powers. Humanity lurches from sin to error to delusion and back. But we try all the same.
This discussion reminds me of one of the best lines Kipling ever wrote (and I consider him on of the best writers ever).
"It requires either blackguards or gentleman, or, most expeditiously, blackguards commanded by gentlemen, to do butchers' work with efficiency and dispatch."
There is a certain amount of "butchers' work" that must be done for there to be a safe, stable "good" country. But it is done at the risk of body and soul, and the doing of it risks destroying the goodness that it protects.
I would say that the government should prosecute Daschner--the law must be upheld--but it would be desirable for the jury to find him not guilty, and desirable for him to be pardoned were he convicted, given the extenuating circumstances.
Posted by: SamChevre at December 3, 2004 09:49 PMVery interesting article. I'd hate to be a police chief faced with a case like that - you really are damned if you do and damned if you don't. On the one hand, I think that if they are pretty sure about the identity of the kidnapper/murderer, the gut reaction is that they deserve what they get. Of course, a legal system cannot work like that; that is why we have independent judges and so on. And we do not atone for the wrongs of others by committing wrongs ourselves.
That said, from what I've read in this article, I think the solution to me is fairly obvious. Punish the policemen for transgressing the law (and the constitution, which is perhaps the more important fact here), but use the other wonderful fact about having an independent police force and judiciary. Which is that they can punish according to circumstance rather than dogmatic attachment to "tariffs" etc. So convict, but give a highly lenient sentence for the crime. The punishment sends the message that these options simply are not acceptable, but by having a lenient sentence, it shows the wonderful flexibility of a western legal system, that is still capable of making moral judgements on a case-by-case basis.
Posted by: Ken at December 5, 2004 03:20 AM