Saturday, December 5, 2009

Interstellar Omissions

In my previous blog posting, "Interstellar Intimacies", I spoke about Star Trek's commitment toward exploring and defying restrictive socio-cultural boundaries, particularly with respect to race. The original Star Trek series in the late 1960s featured the first interracial kiss between a White (Captain James Kirk) and a Black person (Lt. Nyota Uhura) on television - this during the era of still-entrenched racism and bigotry toward African-Americans and people of colour. As the series was also filmed during the cold war, the presence of a Russian crew member, Pavel Chekov, also suggested a visionary collaboration in the future between two then-competing and antagonistic superpowers.

The latest film installment (released earlier this year) in many ways reproduces some of these traditional motifs of the Star Trek universe as it traces the beginnings of the original crew members. Yet it also fails to address one of the more compelling social, political and legal issues today, the struggle for equality and inclusiveness by gays and lesbians - particularly in the context of serving openly in the military.

While the USS Enterprise and other Starfleet vessels operate within a diplomatic and exploratory mandate, they are also armed military ships that engage in combat (afterall, who would realistically watch any Star Trek episode or film if the central focus of each plot was to dramatize the complexities of conducting geological surveys on lifeless moons or uninhabitable planets). Conspicuous by their absence, at least within the latest film, are any mention or inference of openly gay or lesbian characters serving within the ranks of Starfleet.

By mentioning the idea of including openly gay or lesbian characters, I am not speaking of introducing crude caricatures or making any such particular character's sexual identity an explicit part of the plot. Just as the original Star Trek series took it as a given that in the future, people of different races and ethnicities would and could be a part of a cooperative military and exploratory adventure together, the same could be done here with gays and lesbians.

References can be made subtly, perhaps even more more so than a scene that has a young cadet Kirk making out with a green-skinned female alien (no offense to extra-terrestrials intended). For example, as or before Kirk is about to enter a shuttle transporting him to Starfleet Academy, he could have been shown passing a character leaving to attend Starfleet Academy as well who is saying goodbye to their same-sex spouse and in such a manner as to suggest they are more than just "friends". This implicitly would speak both to the acceptability of open same-sex marriages/relationships and to the ability of gays and lesbians serving openly in the military being a given in some future context, without it becoming the central focus of any story.

By not including this or something similar, I am not in any way suggesting that the producers and writers of the recent film did so intentionally or out of malice. In rebooting the original Star Trek narrative, a central focus will naturally be on re-establishing the audience's connection with the new actors who are playing hallowed characters within the science fiction genre. The new film rewrites the history of the Star Trek universe, and thus allows for the introduction of new characters going forward in sequels. Perhaps writers for the next film(s) will take the opportunity to consider how to address the issue of inclusiveness of gays and lesbians in the military and as equal members of civil society. This could serve as as a powerful comment on their present inability to serve openly, not only in the United States but in other polities.

Sunday, November 22, 2009

Interstellar Intimacies

The Star Trek universe, whether on television or film has fascinated viewers for decades now. More than just a medium of entertainment, its themes have striking resonance for those studying international law and international relations (see the sources section below). The most recent addition to the science fiction enterprise (no pun intended) is the recent film, simply titled, Star Trek. In addition to exploring (legal) issues related to torture and genocide (as my Jurisculture partner in crime Alexandra examined in her posting "Genocidal Trek" from earlier this year) this film focuses, in part, on the origins of the characters from the original 1960s television series that made the Star Trek industry famous. In so doing, it draws attention to themes that made the original Star Trek series so revolutionary for its time - the breaking of socially-constructed boundaries.

In tracing the origins of one of Star Trek's leading characters, Spock, the film touches upon issues of discrimination and ostracism experienced by individuals of mixed racial parentage. Spock, as many are surely aware, is the progeny of a Vulcan father, Sarek, and a human mother, Amanda. Although a bi-racial child, in the literal sense, Spock is raised (culturally) in the Vulcan way - that is, he is raised to subordinate all personal emotions and subjective feelings to the demands of logic and scientific thinking.

While culturally and by all appearances Vulcan, a young Spock is shown being taunted and ostracized by fellow Vulcan students on account of his mixed parentage, and particularly for being the son of a human mother. Spock gives into his emotions and attacks one of his peers who insults his mother. From the Vulcan perspective, humans are largely derided as emotional, intemperate, undisciplined and most sinfully, illogical beings. This explicit prejudice follows Spock throughout his life. During an assembly where he is granted admission into the Vulcan Science Academy (considered a rather prestigious honour for Vulcans), Spock is given a backhanded compliment by a high official about his ability to succeed notwithstanding his biological deficit. Consequently, Spock declines the offer of admission and instead opts for a seat in Starfleet Academy, situated in San Francisco.

Interestingly, while Spock is derided by his fellow Vulcans as being too human, and not Vulcan enough, he is similarly not fully at ease amongst his human counterparts, except with perhaps cadet Uhura. Indeed, amongst humans and his Starfleet colleagues, Spock identifies himself and is identified as a Vulcan, rather than as biracial. This is usually raised by the emotional and antagonistic Dr. Leonard McCoy who has in previous films and the television series referred to Spock as inhuman, replete with references to Spock's pointy Vulcan ears.

Spock's challenge as a bi-racial child to navigate between two worlds that do not completely accept him is something that many bi-racial children experience today. There are challenges to navigating between two different normative structures each replete with their own set of values and expectations for individuals within their respective systems. Although there are probably few countries that formally prohibit interracial relationships as a matter of state law, there is still a tremendous degree of resistance by members of different civil societies across the world toward such relationships.

This resistance can even impact upon the decisions of legal actors. One need only recall a Justice of the Peace in Louisiana who, this past summer, refused to marry an interracial couple on the basis that he was concerned about the effect that such a relationship would have on the couple's prospective offspring and their acceptance in a racialized society. While the Justice certainly had no legal right to abstain from performing the marriage on this ground, his belief is not completely unfounded as there are certainly parents and families who still evidence significant resistance towards one of their own marrying someone outside of their particular ethnic, class, linguistic and caste group. This isn't to suggest that such barriers and resistance shouldn't be broken or challenged, merely that such resistance is palpable and needs to be addressed. The Justice's decision should have been geared toward confronting those barriers rather than succumbing to them.

But returning to Spock's narrative and its relevance to interracial relationships in our time(s) and place(s) speaks to something far from anachronistic, not only in North America (the cultural backdrop for the creators and writers of Star Trek), but around the world. It speaks to some rather powerful and pervasive non-state legal orders that can have an impact on the decision of interracial couples (or couples who cross distinct cultural boundaries) to pursue their unions or have children. In some cases, the opposition will be limited to mild ostracism while in other extremes, it might lead to physical harm, if not execution. Whatever their forms, these are types of enforcement within socio-legal systems that do not recognize or accept such unions.

The relationship between Sarek and Amanda also speaks to the norms that may govern the raising of children in such contexts. Although half-human, Spock is rather explicitly raised in the Vulcan way. Anything human is derided as clearly inferior and lacking in logical thinking. In many mixed families (whether the mix is on the basis of race, religion and/or other distinction), the cultural values of one spouse may dominate over the other's in the raising of their children. Rather than both cultural frameworks having equal representation, there is perhaps in many instances a pattern of dominance. One of the cultural frameworks, whether explicitly or implicitly is presented as dominant so as to impose some sense of uniformity. One of the spouses "converts" and/or otherwise accepts and assimilates (although perhaps not completely) the other spouse's cultural framework and the norms that come with it. The children are raised within the dominant framework while the other may be diminished. This is of course not the case in every such familial context.

Star Trek, as always presents its viewers with a wide range of norms and normative structures. In this posting, I have focused on what the film has shown. In a subsequent posting, I shall explore what was left out and was such omissions suggest about the limitations of Star Trek's implicit commitment to breaking social, political and legal boundaries.

Sources consulted:

Randall Kennedy, Interracial Intimacies: Sex Marriage, Identity and Adoption (New York: Pantheon Books, 2003).

Michael Scharf and Lawrence Roberts, "The Interstellar Relations of the Federation: International Law and Star Trek: The Next Generation" (1994) 25 University of Toledo Law review 577.

Star Trek (Paramount Pictures 2009).

Sunday, November 8, 2009

Janie's Got A Gun and Justified Private Violence

Twenty years ago, Boston-based rock band Aerosmith released its highly successful album Pump. Amongst Pump's various tracks was the Grammy award-winning song (and MTV award winning music video directed by David Fincher) Janie's Got A Gun (JGAG). The song highlighted a significant social and legal issue - sexual abuse and incest. JGAG conveys the narrative of the song's protagonist Janie who kills her father for having raped her (presumably not for the first time).

In this blog post, I want to briefly explore how the song deals with the idea of private violence in a familial context. In JGAG, there are fundamentally two acts of familial violence that transpire:, where one causally leads to the other: 1) a father raping his daughter; and 2) the daughter killing her father, both in response to and in order to stop prospective rapes by him against her.

The father and his acts are accurately characterized for what they are - as unjustifiable and wrongful. The rape of one's own child (and anyone else for that matter) is an act of a troubled and disturbed mind - although not necessarily a product of legal insanity. This is conveyed in the following lyrics:

What did her daddy do?
He jacked a little bitty baby
The man has got to be insane
They say the spell that he was under the
lightning and the thunder knew that
someone had to stop the rain
Although Janie is a teenager (as suggested at least in the music video), the father's death is justifiably violent - as justification for raping a "little bitty baby". It also conveys the power imbalance that exists between a parent and child, even when that child is a teenager.

Janie's violence is justified as more than just an act of retribution. It is also presented as a form of remedial action and prospective self-defence. She is the "someone" who "had to stop the rain." As with many individuals who suffer from private violence, there is a fear of revealing it to others only to be disbelieved or to have no action taken to stop it.

They said when Janie was arrested they
found him underneath a train
But man he had it coming
Now that Janie's got a gun she ain't never
gonna be the same.


She had to take him down easy and put a
bullet in his brain
She said cause nobody believes me
The man was such a sleaze, he ain't never
gonna be the same.
Janie in this narrative is not presented as just an object of her father's madness/lust/desire, but she is also an agent who takes control of that which causes her utmost pain. Notwithstanding and perhaps in spite of her father's depravity and metaphorical insanity, her agency is nevertheless manifested through a sense of humanity - by taking him down easy and putting a bullet in his brain. One could easily imagine more painful, deserved and vengeful instantiations.

Janie's actions taken against her father are analogous to those who suffer from Battered Spouse Syndrome, where the act of violence waged against an abusive spouse leading to the latter's death does not take place at the time of or in expectation of an imminent attack. It occurs while the abuser is or might be caught unaware of his/her impending death- perhaps even after an abusive act has transpired. In the music video for JGAG, Janie kills her father while he sits in his study, after having just raped her.

The song does not reveal Janie's ultimate fate following her arrest. The song does however convey, intended or otherwise, a sense of justice, retribution and self-defence through Janie's actions.

Sunday, September 13, 2009

Deterring misconduct

Rules are ubiquitous and inescapable. This is what Serena Williams discovered in her semi-final match against opponent Kim Clijsters.

Trailing in what turned out to the final game of the second set, Williams was serving when she committed what the line judge determined to be a foot fault (and because this immediately followed a previous serving fault), she lost the point. This brought the score to 15-40 and match point for Clijsters. Williams argued with the line judge and then returned to the line to serve. However, she returned back to apparently express a few more words to the line judge. This entailed shaking the ball in the judge's face and apparently threatening her.

As reported in the New York Times:

Reporters who were courtside said that Williams approached the line judge and they heard Williams shout profanity at her. Holding a ball, Williams said to the lineswoman that “you don’t know me,” appearing to inject it with profanity. Then Williams added that the linewoman was lucky that Williams was not, according to The Miami Herald, “shoving this ball down your throat.”
After this altercation, the Chair Umpire called the line judge over to her chair to disclose what just transpired. The Chair Umpire then determined that Williams would be assessed a one point penalty for a code violation - "unsportsmanlike conduct". This ultimately resulted in Williams losing the final point of the game and finally the match to Clijsters.

What we observe (as if it weren't evident already) is that different institutions and entities within civil society have applicable rules for human conduct and modes of enforcement over whom they have jurisdiction. While most people don't attend court proceedings, many are often spectators and witnesses at popular cultural and sporting events such as tennis and hockey. Spectators witness how "disputes" are adjudicated by "parties" to the game - in the case of Williams-Clijsters match, enforcement of the rules can lead to an anti-climactic result in an otherwise entertaining and dynamic match.

The dispute that took place at the end of the Williams-Clijsters match was particularly interesting from the point of view of the application of the rules to player conduct. Normally, if there is a dispute in tennis about a technical violation and a judge's call on the violation, there is recourse to technical assistance - i.e. computer-generated reconstructions to assess whether the ball was in or out. Here, there was a dispute over what Williams actually said to the line judge. In ruling against Williams, the Chief Umpire opted to believe the line judge's account about what it was that Williams said. Williams could be overheard imploring the umpire that she didn't threaten the line judge's life. The Chief Umpire's decision to positively view the line judge's credibility was probably helped by the threatening gestures Williams had made toward the latter as she was threatening her (not to mention a reputation for losing her cool on the tennis court).

The episode demonstrates the speed at which justice can (and probably needs to) be dispensed at a live sporting event and the serious consequences for a top-seeded player - both with respect to winnings that can be potentially earned and the prestige to be gained from winning the US Open. As in all systems, some rules are designed to encourage or discourage certain types of conduct - for example rules punishing unsportsmanlike conduct. Whether this will ultimately deter Williams or other players with anger management issues, time will tell. But for now it seems to illustrate that tennis has a type of legal system in operation and it is enforced in such a way as to fell one of its foremost athletes at a critical moment of a match.

Friday, September 11, 2009

Truth and Treason

As with many artistic mediums that we explore on this blawg, theatre has been no stranger to themes of law, politics and resistance. One Montreal-based theatre company in particular, Teesri Duniya Theatre (Third World Theatre in Hindustani) has tackled many such themes over the course of its close to 30 year history. Its latest production, Truth and Treason, written by Teesri's artistic director and playwright Rahul Varma is no exception. Set in Iraq in the aftermath of the US-led invasion of the country, the play examines a variety of issues that stem from the invasion and occupation - many of which implicate the law (particularly the laws of armed conflict, treatment of civilians as well as corruption) into the matrix. Rather than spoiling the play by inadvertently revealing too much information, I provide a brief synopsis of the play here, furnished on the Theatre's website:

At a checkpoint in Iraq, a 10-year-old girl named Ghazal is shot by an unidentified U.S. soldier. Behind the checkpoint, a conference on rebuilding Iraq – attended by high-profile Iraqi and American delegates – is underway. The girl’s condition is critical. Captain Edward Alston, the officer in charge of the checkpoint, learns that Ghazal has a rare blood type and requires an immediate transfusion from her father, a jailed Iraqi writer. Captain Alston tries to arrange for a transfusion. He is also about to let the girl’s distraught mother Nahla, a Canadian woman, go past security to be with her daughter when he is overruled by his superior, Commander Hektor Frank. Why? Because the girl’s father Omar, imprisoned for his writings by the now-overthrown dictator Saddam, is classified as a terrorist by the U.S. government. While the two officers argue over the father’s alleged terrorist history, the girl dies in U.S. custody. A complex story arises involving characters in tension with each other and themselves: Nahla, who can use her Canadian passport to free Omar, but only if he stops threatening to avenge Ghazal’s death; Omar, whose family’s survival is threatened by his activities but who feels bound to serve his troubled country; Captain Alston, who must reconcile his duties as a patriot with his conscience; Commander Frank, who harbours a secret past and can’t take any chances; and the clergyman who turns a personal tragedy into a public fatwa by calling upon Muslims to kill Edward for ‘preventing a mother from seeing her child.’ Truth and Treason invites us to discover the real truth behind the war on terror…

Amidst the political statement(s) against the war, about the lies that led to the war in Iraq and the tragedies that have ensued as a consequence are some interesting legal issues that emerge from the play. In connection with the theme of resistance and the law that I have written about on this blawg, one of the legal themes that arises is the conflict that develops between Captain Alston and Commander Frank over the mistreatment and killings of Iraqi civilians by US soldiers - murders that are covered up in order to avoid bringing the military presence into disrepute or to impose liability on those who perpetrated the acts. Alston's efforts to uncover and reveal the extent of the killings and their cover up leads to his disobedience of Frank's orders to remain silent about what is transpiring. Like many resisters, Alston is confronted with the stark choice of being perceived as a patriot or a traitor for his critique of the military's treatment in Iraq.

Confronting unlawful actions advocated by and sustained by military superiors is very real and challenging, whether it is an American soldier in Iraq (or in an earlier period in Vietnam) or other military personnel in various conflicts. As many studies point out, there is a tendency towards obedience, even when such obedience leads to the commission of crimes or their facilitation. Many such individuals face a court-martial, prison and limited career prospects after their incarceration for their disobedience. Some flee and seek asylum in other states only to be denied. Truth and Treason provides a sense of the intense internal struggle one undergoes in challenging their own state and superior officers, particularly when doing otherwise might not only mean a contravention of law, but a violation of one's own moral code.

Thursday, September 10, 2009

Cultures of (il)Legality

This December will mark the 20th anniversary of the Ecole Polytechnique massacres that took place at the University of Montreal and resulted in the murder of fourteen women and injuries to fourteen women and men at the hands of a disturbed misogynist, Marc Lepine. A film was recently produced, simply called "Polytechnique" that recounts some of the narratives about and surrounding that day. One of the thematic narratives at play in the film is a culture of illegality out of which Lepine emerged.

The obvious epicenter of the illegality featured in the film is the actual murders and injuries inflicted - fueled by an unyielding hatred against women who Lepine deemed to be feminists unworthy to be studying engineering. Yet what the film seems to suggest is that the misogyny that prompted the killer's rampage was but an extreme manifestation of the discrimination experienced by women, particularly in a field of study and profession that looked negatively upon their presence (as has been the case in most traditionally male-dominated white and blue collar professions).

This was strikingly illustrated in one particular scene. Valerie, one of the central characters in the film (who was later shot by Lepine) attends an interview for a very lucrative internship position with an aeronautics firm. During the interview, her male interviewer overtly communicates his skepticism and surprise that Valerie, as a woman, is interested in pursuing her studies and a career in mechanical engineering, rather than a seemingly less demanding career as a civil engineer where she could more easily pursue a family life. The underlying assumption being that all or most women are driven by some primordial maternal instinct to have a family and raise children. Ultimately, we learn that Valerie is offered the internship position but only after affirming that she does not plan to have children, thus making her more acceptable. The hiring or refusal to hire someone on account of their potential decision to one day have children is patently illegal under today's legal norms (see for example - the Ontario Human Rights Code s.10(2)).

This scene, coupled with the more gruesome shooting sequences illustrates a larger culture of illegal discrimination that once existed (and arguably still exists on some level). While Lepine's shooting spree targetting women was exceptional (in the manner it was carried out), violence against women still substantially continues today in private spheres (as it did then). Furthermore, notwithstanding the legal system's formal intolerance of the type of treatment Valerie experienced during her interview, the attitudes that fostered that treatment still exist (in a variety of employment contexts) and become manifested in more subtle ways during interviews (and in other instances - not so subtly). More often than not, many interviewees will not pursue any action and thus such norms of discrimination and unlawful business actions can continue with impunity.

Interestingly, the interview scene also introduces (at least with respect to the time period of the late 1980s) the idea of an informal caste system where civil engineers appear to occupy a lower status in the engineering hierarchy, a caste which women are expected to occupy because of some presumed desire to have children. Further above is mechanical engineering, which appears to be less amenable and open to women and dominated by men. In order for Valerie to be accepted into this male-dominated caste, she must accept the (arbitrary and discriminatory) norms imposed, as enforced by the male interviewer/gatekeeper. The most blatant norm seems to be that in order to accepted, Valerie must diminish if not eliminate one of the markers that distinguishes her as a woman from her male counterparts, her ability to bear children.

Ultimately, the film attempts to demonstrate that such killings don't transpire in a vacuum. What existed was a(n) (il)legal culture of discrimination that tolerated a certain degree of discrimination against women that Lepine took to an extreme.

Monday, August 31, 2009

Laws of Mourning

Several days ago, Edward M. (“Ted”) Kennedy, longtime Massachusetts Senator and head of his storied family, died after a battle with brain cancer. As has become common in the age of a 24-hour news cycle, the announcement of his death sparked a media frenzy which culminated in coverage of his funeral and burial. Certainly, in the public outpouring of affection for Senator Kennedy and grief at his loss, the media coverage of these events was tailored to Senator Kennedy himself. And yet, in other ways the coverage of his funeral is an essay on the accepted laws of mourning within the religiously pluralistic society that is the United States.

Senator Kennedy was a devout Catholic, as is the Kennedy family generally. The venue for his funeral was Our Lady of Perpetual Help Basilica in Boston, Massachusetts, where Senator Kennedy had worshipped. On this occasion, the viewing public was invited inside the Basilica in order to watch the funeral mass unfold, complete with eulogies by the Senator’s two sons as well as the President of the United States. In attendance were legendary political figures in both the Democratic and Republican parties, and mourners from all forms of religious backgrounds and beliefs. Much the same can be said of those who watched Senator Kennedy’s funeral on television. Indeed, the fact that his public funeral was conducted in the form of a Catholic funeral mass did not deter viewers of multiple backgrounds from watching the mass itself, along with the eulogies.

What lessons can be drawn from this? The primary lesson is that, even in a religiously pluralistic society such as the United States, there are accepted laws of mourning that make a space for religious rites, regardless of the religious beliefs of the person being mourned, and that the media has a direct role in reinforcing this.

In the days between Senator Kennedy’s death and his funeral, the media rebroadcast portions of the funeral for Robert F. Kennedy, which was similarly conducted in the form of a Catholic mass. The combination of political ceremony and religious ritual which was shown in video clips of RFK’s funeral and in Senator Kennedy’s funeral was also reminiscent of the more recent funerals of Presidents Ronald Reagan and Gerald Ford, and formed a continuum of understood practice within society for the mourning of political figures. Thus, although the United States prides itself on the separation of church and state as a matter of formal law, it can be seen that, in its societal laws of mourning, the religious beliefs of the person being mourned are respected as being central to mourning practices, and the public partakes of the particular religious practices of the deceased in order to mourn him appropriately. Media has reinforced this norm by making it possible for viewers of all faiths to partake of the funeral rites at issue. From public events of mourning like Senator Kennedy’s funeral, we can thus see a reinforcement of the respect for individual religious beliefs within a religiously pluralistic society.

For background information on the Kennedy funeral, please see

Monday, August 10, 2009

Resistance and Children's Books

As with other forms of cultural expression, children's books can provide a source of education for children implicating legal and moral principles. Various scholars have explored such themes and how contemporary publications, such as the Harry Potter line of books, can be a source for teaching children about autonomy and decision-making.

As I was reading some stories this morning to my daughter, I noticed some important principles that can be transmitted at a very young age from these narratives. For example in Snow White and the Seven Dwarves (the short Disney version), the evil Queen orders a huntsman to take Snow White into the forest and kill her (and then cut out her heart and place it in a box to be brought back to the Queen). The huntsman takes Snow White out to the forest, only to release her and tells her to escape. He then kills a deer and places its heart into the box, allowing the Queen to think he carried through with her orders. In a rather simple and abbreviated manner, children are taught that not every command by an authority figure is to be followed and accepted - particularly when the basis of the execution is that Snow White is the fairest in the land. There is a concept inculcated here that not every command or punishment is just and fair, and where such injustice takes place, it may be appropriate to defy implementing a superior command and perhaps use artifice to further protect a potential victim by allowing the superior to believe that the order was carried through.

There are undoubtedly other narratives of resistance and challenges to (criminal) authority embedded within such stories. Whether it is Dorothy defying the Wicked Witch of the West in The Wizard of Oz or Peter Pan confronting Captain Hook in Peter Pan, many of these narratives speak to kids about challenging bullying and harmful exercises of authority that are possibly worth emphasizing at an early age.


Shauna Van Praagh, "Adolescence, Autonomy and Harry Potter: The Child as Decision-Maker" (2005) 1 International Journal of Law in Context 335.

Shauna Van Praagh, "Harry Potter and the real story of A.C.: A Wizard's Burden, a Manitoba Girl's Faith." The Globe and Mail. 16 July 2009.

Sunday, July 19, 2009

Enemies of the Public or Public Enemies?

The movie Public Enemies tells the story of the latter portion of John Dillinger’s life as an outlaw, juxtaposed with the schemes of J. Edgar Hoover, and the career rise of Melvin Purvis, the FBI agent who was tasked by Hoover with the responsibility of apprehending Dillinger.

Much of the story is known to readers – Dillinger was an iconic bank robber in the US in the 1930s, who ultimately established a folkloric following with the general public. Public Enemies highlights certain elements of Dillinger’s life and personality which could easily explain the public sentiments surrounding him. He lived in a larger than life manner, not thinking beyond the moment he lived in, and loved all manner of vices – taken together, during a time when the nation was in the Depression, this was an attractive story for the nation. During the course of his robberies, Dillinger would not take money from bank patrons themselves because his target was only the banks and their reserves. In the Depression era, this was certainly an attractive concept to many people.

While there were occasional deaths during Dillinger’s robberies, Dillinger avoided harming civilians in the course of his robberies. Indeed, his standard tactic was to escape from the targeted bank with several hostages, who he would later free unharmed in remote locations. Dillinger is known for mingling with the public at large, and the movie presents us with Dillinger sitting in movie theatres, at a race track, and even being so bold as to walk into a police station, enter the offices of the law enforcement officers tasked with finding him, and ask them the score of a baseball game being broadcast over the radio. None of these public appearances was made in order to threaten the public itself; rather, it was Dillinger’s way of enjoying life, living among the people with whom he identified, and flouting law enforcement.

Even when he was in need of “jobs,” he had rules about not harming people. For example, he refused to participate in a plan to kidnap a man because he knew that the public would not look favorably on it, and also stated that it was something he did not do. When he found himself working with a trigger-happy Baby Face Nelson, Dillinger knew that he had to leave the group they had formed because of Nelson’s violence and temperamental demeanor. Ultimately, Dillinger dies after being exposed to the authorities by a Romanian madam with whom he was quite close; she was persuaded to cooperate with federal agents because she found herself facing deportation as the alternative to cooperation. After leaving a packed movie theatre, Dillinger is shot by federal agents amid a crowd of innocent people. All in all, it can be said that, in this version of his life, Dillinger lived and acted according to personal laws and rules which targeted what he saw as corrupt entities, while avoiding harm to the public to the extent possible.

The other primary focus is the FBI at the time when it was beginning to function as a law enforcement entity. Public Enemies does not paint a flattering picture of Hoover, presenting him as lacking field experience, being calculating, and generally lacking in respect for the legal system outside of his version of it. Merlin Purvis first appears to the audience when he is in the process of gunning down another well known criminal of the era, Pretty Boy Floyd. This results in Purvis’ promotion to the head of the Chicago FBI office assigned to apprehend Dillinger. At first, Purvis’ officers are part of the dedicated, well-intentioned force that Hoover presented to the world as his model for the FBI. However, when a member of his team is killed during a botched raid in which Nelson escapes, Purvis’ mindset begins to change.

Purvis requests and receives permission from Hoover to add hardened agents to his team – agents who did not conform with Hoover’s public mage of the FBI. He instructs his secretary to order a larger cache of weapons and tells his agents to either prepare for a dangerous and bloody fight or leave his office. However, when Dillinger and his girlfriend, Billie Frechette, are apprehended in a hotel, the apprehending agents are polite and respectful to Frechette, even assuring Dillinger that she had been sent back to Chicago because they were not “ogres.” Shortly thereafter, Purvis meets with Dillinger and Dillinger asks him about the experience of seeing one of his agents die. Dillinger then tells Purvis that men like Purvis were not conditioned to stand having the people around them die and advises Purvis to find another job.

Dillinger escapes from prison and resumes his activities, although he is an outcast in the Chicago criminal community. After Dillinger’s escape, Purvis is ordered by Hoover to bring all family members and associates of Dillinger and his men into custody and submit them to intense interrogation without “sentimentality”. Several scenes later, Dillinger and his men then join forces with Nelson in a bank robbery and one of Dillinger’s accomplices is shot in the head. He survives with a bullet lodged in his head, however at the hospital Purvis stops a doctor from treating him while he is being assaulted by Purvis’ team and denied vital medication.

Further along in the story, Frechette alone is apprehended by the FBI. Rather than letting her go, she is brought in for questioning by an enraged agent who savagely beats her and is only stopped when Purvis’ secretary alerts him to his agent’s conduct and another agent – the one who ultimately kills Dillinger – stops any further assault on Frechette. However, the agent who beat Frechette continues to serve on Purvis’ team and the audience is not privy to any disciplinary action taken against him. Finally, Dillinger is gunned down by Purvis’ men in what is best described as a planned killing that occurred in the middle of a crowded street. Indeed, the same officer who beat Frechette is seen walking down the street with a gun pointed at the back of Dillinger’s head. The only humanity shown in the Dillinger shooting is by the agent who shot him, who had given Purvis advice that Purvis opted not to take and that choice was proven incorrect. This agent listened to Dillinger’s last words and then faithfully relayed them to Frechette.

It is perhaps obvious to say that most stories surrounding Dillinger are romanticized to a certain extent. Romanticism aside, however, Public Enemies presents a powerful juxtaposition of personalities and views on law. Dillinger had his own set of personal laws and rules and refused to disavow them even when it would have been to his advantage. He expressed regret at one point for having robbed a store in his youth because the storeowner had been “a good man.” This remark is in keeping with Dillinger’s rules. Indeed, it was those very rules that made him attractive to the people at large – they were the sort of Robin Hood rules that were understandable to people, particularly in a time of desperation. Dillinger’s rules might have killed him, in that he might not have been ostracized by the Chicago criminal community if he had let go of them sooner and joined their operations.

In contrast, Purvis’ character loses more and more of the faith he had in established law as he pursues Dillinger. His first step is bringing in less than savory team members because of his realization that the type of agents being cultivated by Hoover would not be useful in a fight against Dillinger. From there, he continues to lose sense of his personal code, and the dedication he had to upholding the laws of the nation, with the brief exception of intervening in Frechette’s beating. The turmoil going on within Purvis is visible when he picks up the injured Frechette and carries her out of the interrogation room – one part of him wants to protect a vulnerable woman and uphold the rules of police conduct, while the other is on a mission to find Dillinger regardless of the legal or moral consequences. Ultimately, Purvis authorizes the killing of Dillinger, which could easily be argued as a murder, since the appropriate legal process would have been to apprehend Dillinger and charge him criminally. In so doing, he watches without interruption as his agents gun Dillinger down in the middle of a crowd, and in particular while one officer points his gun at Dillinger for a protracted period of time, while members of the public pass by.

The intersection between Dillinger and Purvis impacts the laws they lived by in different ways. Dillinger refused to change his personal laws even when it cost him the protection of the Chicago community that could have saved him. Purvis, paradoxically, changed his personal laws and the way in which he acted within the confines of national law during his pursuit of Dillinger. In so doing, he and his team allowed pressures from Hoover and the pursuit to make themselves public enemies in a different sense than Dillinger, Nelson, and Floyd. In the case of Dillinger, Nelson and Floyd, the designation as “public enemies” was made in order to indicate that they were a threat to public order and safety. However, in the case of Purvis and his team, the meaning of public enemies is somewhat different. Here, there are indeed enemies, but this time they are in the form of the public officers who were tasked with protecting the people and upholding the law and yet placed innocent civilians in danger and committed and/or sanctioned acts of assault and torture without regard to law or morality. Thus the “enemies” were also the “public” officers who had agreed to protect and abide by law and yet failed to do so.

Sunday, July 5, 2009

Rules of Engagement and the Hockey Rink

In most (legal) cultures, there is an ambivalent relationship with violence. In the majority of circumstances, violence that is engaged in by private (that is to say non-state) actors is not endorsed, even where they consent or assume the risk of being injured. Yet, in some limited circumstances, violence between private individuals is permitted and legalized. This is particularly so in the context of certain sporting events. In contact sports like boxing, kickboxing, and ultimate fighting, the principal goal is to inflict the maximum amount of bodily damage to one's opponent in order to emerge victorious. However, in other sports, violence may not be the principal feature/goal, yet nevertheless it plays a significant corollary component. One of these sports is hockey.

In hockey games, fighting between players is condoned to a certain level without intervention of the referees. However even though such violence is condoned, it is certainly not approved by all, with some certainly decrying this type of violence. Still, as it is permitted, there are certain norms that govern such violence, whether explicit or implied. For example, what happens when a hockey player, notwithstanding the violence that seems prevalent in the sport, refuses to engage in a fight when challenged and is then assaulted nevertheless. Is there a limit to the aggression one can engage in against an "unwilling combatant"?

A recent case arising out of the Quebec minor hockey league (Ligue de hockey junior majeur du Quebec - LHJMQ) provides one answer to that question. During a melee amongst several players, a player from one team ("the aggressor") approached a player from the other team, struck him twice in the chest, inviting him to fight. The latter refused to engage and according to his testimony, he remained as still as a statute and refusing to remove his gloves indicating a willingness to fight. The aggressor then struck the other player with his stick resulting in a laceration requiring stitches and was confined to a liquid diet for a week. The aggressor was suspended for 15 games.

Yet the rules of the League was not the only normative framework in play. The player is now the subject of criminal prosecution for his unwarranted conduct. This in part demonstrates that unwarranted violence in a sport that often accepts violence is not tolerated in certain circumstances. It also demonstrates application of two different sets of rule-based frameworks that apply to a certain type of human interaction. In addition to this of course are any civil damages that the victim might seek.

The incident however implicated for me another series of norms that fall under the category of international humanitarian law, particularly the treatment of soldiers who have laid down their weapons. For instance, Common Article 3 of the 1949 Geneva Conventions provides that "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms...shall in all circumstances be treated humanely...." In furtherance of this, the following acts are prohibited: "violence to life and person"; "outrages upon personal dignity, in particular humiliating and degrading treatment."

As a quick caveat, by raising this analogy I am in no way attempting liken or trivialize the seriousness of armed conflict to something akin to the violence of a hockey match. There are however, ideas we may grasp from the most unlikely venues. Soldiers are expected as part of their profession to engage in combat against enemy combatants. Yet, they are also expected to treat their enemies, particularly those who are wounded, rendered "hors de combat," or who have surrendered, in a humane manner. In our hockey scenario just discussed, we had one player clearly indicating his unwillingness to engage in a fight, but in the face of the refusal to fight, he was meted out the aggressor's punishment, subjecting him to unwarranted violence. What the law of armed conflict tell us is that if soldiers, individuals engaged in the most violent of human activity, are expected to observe certain norms of conduct against certain classes of individuals who would normally have been their enemies, clearly it is reasonable that stringent rules should apply to hockey players.

Turning to the real world, however, we are all painfully aware that notwithstanding the numerous international and national legal frameworks that apply to the conduct of soldiers, violations take place and will continue to be. The enterprise of trying to set down rules to govern warfare seems for many paradoxical given the (sometimes) utter savagery of the enterprise. Still there are some basic norms that soldiers must abide by. So too in other civilian based human activity, certain minimum rules exist.

Sources consulted:

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, 75 U.N.T.S. 135 (entered into force 21 October, 1950).

Marie-Claude Lortie, "Amateurs, pourquoi ne faites-vous pas le menage vous-memes?" La Presse. 3 Juillet 2009. A3.

Caroline Touzin, "La violence au banc des accuse." La Presse. 3 Juillet 2009. A2.

Friday, June 19, 2009

Changing Perspectives on Proof and Justice

What does society expect in the way of proof to establish that justice has been done in a criminal case? How does this expectation change over time? There are, of course, myriad answers to these complex questions. Recently, these questions were brought into particular focus to me while watching several hours of randomly selected television programming.

The first program I stumbled upon was the 1993 movie The Fugitive, in which Dr. Richard Kimball is falsely accused and convicted of his wife’s brutal murder. The evidence upon which he is convicted is highly circumstantial, and hinges in part on a 911 call placed by Helen Kimball, the deceased, in which she mutters a phrase which could either be seen as her implicating her husband in her murder or mumbling for his help. When the opportunity presents itself, Dr. Kimball escapes police custody and returns to his native city of Chicago in order to clear his name and find the real murderer of his wife. In so doing, he is pursued by US Marshall Sam Gerard and his team, who ultimately start to understand that Dr. Kimball did not in fact kill his wife. At the end of the movie, both Dr. Kimball and Agent Gerard have established that a supposed friend of Kimball’s framed him for Helen’s murder in order to cover up a false drug trial that would reap unknown profits for the friend and his pharmaceutical company.

The second program stumbled upon was a 2008-2009 season episode of Law & Order SVU entitled "Zebras." In this episode, an insane murderer is not convicted due to an error made by a lower-level member of the forensics team. Following the killer’s release, a series of seemingly connected murders ensue, leading the police to assume that the original murderer has gone back to his old habits. While conducting his tests, an excited forensics officer informs Benson and Stabler, two of the show’s lead detectives, that he found a mosquito which he believes contains the murderer’s blood and DNA. All are happy because this time they want to be able to win a conviction of the person in question and stop him from hurting anyone else. Ultimately, the real killer in the post-acquittal phase of the show is actually the forensic tech who made the initial mistake that resulted in the acquittal. Having been humiliated – in his view – in court and having lost the respect of his colleagues as a result of the error, the tech designed a plan in which he could use evidence to frame the murderer for his own actions and, in his view, atone for what he had done while proving those who had doubted him wrong.

Other than showing the popularity of crime dramas on a Saturday night, what is the relationship between these programs? Both of them involve the framing of innocent people for murders and crimes that they did not commit, that is clear. More than that, however, these programs demonstrate points on the continuum of evidentiary evolution – especially in the world of popular media.

In 1993, so The Fugitive storyline goes, a jury was able to convict an otherwise well-respected doctor and figure in the community for murdering his beloved wife based on circumstantial DNA evidence – the murder occurred in his home, where such evidence would presumably be common – and the contents of Helen’s dying telephone call to the 911 dispatcher, which could be interpreted in several ways. At the time of his conviction, the audience knows that Dr. Kimball did not kill his wife and understands the frustration he feels at failing to convince a jury of that in the face of non-scientific evidence. Standing in stark contrast to this is the SVU storyline, in which a mentally disturbed artist is not convicted of a murder he did commit due to the actions of a forensic technician. Other circumstantial evidence and the defendant’s overall demeanor are of less value than the technical evidence. When that same forensic tech tries to implicate the exonerated defendant in crimes he did not commit, he intends to use technology and science to make his case. And, poetically, it is the same technology and scientific ability that exposes the forensic tech as a murder himself.

Certainly, the juries in each storyline act to support the subsequent portions of the plot, yet their actions presumably must be at least plausible – if not agreeable – to the audience in order for the story to be somewhat believable. Thus, we see that in the span of fifteen years, the societal expectations of proof in the criminal law context, as portrayed through media, have shifted dramatically. Juries, it would seem, have become far more sophisticated – perhaps underscoring the existence of “CSI syndrome,” in which real juries expect prosecutors to offer the level of sophisticated proof and technology that is seen on television crime shows. And the media expects them to be more sophisticated and discerning, while at the same time shifting their faith from the overall evidence to the hard science presented. The question then becomes what the future of the continuum will be and to what degree of specificity juries in the future will expect prosecutors to conform to in order to convict based on the science and technology made commonplace in the mainstream media. The perils of a less-demanding jury are of course demonstrated by the jury which convicted Dr. Kimball to begin with; however, the perils of overly precise expectations on the part of a jury can be seen in the SVU episode.

Information regarding the “Zebras” episode of Law & Order SVU is available at

Information regarding The Fugitive is available at

Sunday, June 14, 2009

Casualties of War and Law

Soldiers face numerous challenges uncommon to the average civilian. Apart from the demanding physical and mental stresses inherent to soldiering, soldiers face a multitude of legal and/or moral issues. These issues may involve nuanced questions in determining whether a perceived opponent is an enemy combatant(s) or is/are people protected under international humanitarian law. Yet, even in cases when a person is clearly a non-combatant, and where an order to inflict pain or death on such person is manifestly illegal, a soldier’s decision whether to refuse to comply with the order or to actively stop the order from being executed also involves serious challenges. To illustrate these complexities and the collision of multiple legal orders on the moral soldier, I shall use the example of the film, Casualties of War (COW), starring Michael J. Fox (Private First Class Eriksson) and Sean Penn (Sergeant Meserve).

Set during the Vietnam War and based on true events, the film depicts the brutal actions of a group of American soldiers who kidnap, rape, and finally murder a Vietnamese village woman, Thị Oanh Thân. More fundamentally however, the story explores one character, PFC Max Eriksson’s refusal to take part in Thân’s rape and murder as ordered by his immediate superior, Sgt. Tony Meserve. In addition, it explores the tremendous challenges he faces in seeking to have an investigation initiated into the rape and murder.

The acts of kidnapping a villager/non-combatant in the middle of the night, followed by her rape and murder are obviously illegal under both international law and U.S. military law. The film is not so much about the finer points of law, but just how the proper application of clear law is avoided, ignored and/or subverted by the stated exigencies of war and other competing normative frameworks.

Competing Legal Normativities

Eriksson’s firm stance in refusing to rape and murder Thân as well as his conviction in pressing criminal action against Meserve and the three other soldiers who participated in the illegal acts is situated in at least three normative frameworks. International and domestic humanitarian law provides the first and perhaps obvious framework. The Geneva Conventions and U.S. federal law prohibits, amongst other things the kidnapping, rape, and murder of non-combatants. Eriksson’s refusal to take part in Thân’s rape and murder is commensurate with certain prescribed duties incumbent on soldiers. Yet, there are other non-state based "legal codes" that arguably regulate Eriksson's actions perhaps just as much. As Mark Osiel has written and notwithstanding a certain degree cynicism one may have about the concept, there exists a sense of chivalry about the proper role of a soldier to not take action that is in essence unbecoming and violative of this code/sense of chivalry – particularly attacking individuals who are non-combatants. Intertwined is, of course, a sense of morality about taking a young woman in the dead of night, from her family, and dragging her away to eventually be used as a plaything, all the while taunted and abused along the way. These legal and moral codes are not mutually exclusive, but all combined to help govern one’s actions. Eriksson's feeling of pain at seeing a defenceless Thân being raped and essentially unable to stop it (without great risk to himself) is not triggered by the fact that Geneva law is being infringed, but arguably by the violations of the other normative frameworks in play.

Competing against these normative values are those that animate Meserve – that in essence, war is about brutalization – one that centers on dominating and devastating both the civilian and the combatant. Laws that attempt to limit brutality committed during war seem contrary to the very purpose of warfare and moreover may prolong the suffering that war inflicts. These notions are of course not new and go back decades in debates about the nature and effectiveness of humanitarian law. This is illustrated in the following ways in COW. When Meserve instructs his men about their mission, he advises that their orders are that they may only return fire in self-defence. He however specifically instructs them that if they see any Vietnamese out in the open, regardless of their combatant status, they are to be terminated. He also forewarns them that they will be kidnapping and raping a villager of their choosing along their march to be used for their own amusement. Eriksson at first believes that Meserve was not serious and discovers his misapprehension when Meserve and Corporal Clark conduct the kidnapping of Thân while callously pushing aside her mother and sister. After the kidnapping, Eriksson approaches another private in their unit, Hatcher, about the kidnapping. To Eriksson’s astonishment, Hatcher extols and approvingly likens Meserve to Genghis Khan, noted historically for his ability to demolish and devastate opponents without a hint of restraint.

There is a further normative framework in play that legitimizes Meserve and the unit’s manifest illegality. Notwithstanding the code of chivalry previously mentioned, COW also demonstrates that whatever illegality or un-chivalric acts are committed ought to be kept under wraps - a code of silence. One rationale advanced is that prosecuting Meserve and revealing the details of the crimes would create an international incident and impact upon the U.S. government’s reputation. The laws of armed conflict endorsed and ratified by the state are purposely ignored by its agents charged with enforcing these very norms.

What COW illustrates is that while national military law and international law are binding and (are supposed to) govern the conduct of soldiers, ultimately these state-based normative frameworks are undermined by other non-state normative frameworks that value alternative operating principles than those that the officers are obliged to follow. Ultimately, a trial takes place at the end of the film, resulting in convictions for Meserve and the other members of the unit. International and military U.S. law wins out but only with a significant degree of perseverance by Eriksson, despite open hostility and attempts on his life in order to silence him from allowing the truth to be revealed.

Resistance and Law

Eriksson’s resistance does not take place in a vacuum but within the context of the clashing normative structures I discussed above. Clearly, Eriksson’s actions demonstrate a fidelity to international and national laws governing military conduct, as well as notions of chivalry and basic morality and human decency. Yet it is the other normative principles at play which control the actions of his superiors. Yet, as the work of radical geographers has postulated, power is not confined to dominant authorities, but also resides in those resisting the exercise of dominant power. Eriksson’s resistance is manifested in numerous ways. This ranges from confronting Meserve about kidnapping Thân as well as the plan to rape her. Eriksson refuses Meserve’s illegal order to rape Thân, thus incurring his wrath and marginalization within the unit. There are of course different degrees of resistance exercised. While Eriksson was firm about refusing to take part in the rape, his conscience and sense of duty was patently triggered when trying to help Thân escape while others in the unit are away observing enemy movements. Brutalized and raped, Thân is incapable of escaping on her own. Eriksson realizes that if he were to take her away from where they were situated, he would be deemed a deserter, a status that weighs heavily on him and his sense of duty as a soldier. When he decides to take her back to her village and risk being marked a deserter, he is discovered by Corporal Clark who orders Eriksson and the villager to join the others. The consequence is that ultimately Thân is killed by members of the unit in the midst of a gun fight with actual enemy combatants. When Eriksson realizes that Meserve and the others are about to kill Thân, he tries to stop them but is immobilized by Meserve. Eriksson's reluctance to desert may have cost Thân an opportunity to escape death after her already traumatic ordeal. He failed to sufficiently exercise his own "resisting" power early enough to effect a result commensurable with the principles he believes in.

Tremendously burdened by the weight of what he witnessed and his inability to save Thân, Eriksson wages an effort to move two key superior officers to have Meserve and the others prosecuted. Both superiors, Lt. Reilly and Captain Hill (also Meserve's superiors), however are reluctant to push Eriksson’s agenda forward and encourage him to drop the matter. Ultimately, given Eriksson’s revelations, an investigation leads to the discovery of Thân’s body and evidence of her murder and rape become evident. In this scene, Eriksson stands next to Capt. Hill, who chides him for not letting the matter go and for pursuing it. Eriksson, through an act of clear insubordination, tells Captain Hill “to go to hell”. Meserve and the remaining soldiers are court-martialed and sentenced to various terms in prison. It is Eriksson’s whistleblowing as an act of defiance that causes an investigation and the prosecution of Meserve et al.

Reflecting Realities

Although set during the Vietnam era and filmed and released in the late 1980s, the story nevertheless has resonance in modern-day armed conflicts. There are many ways that soldiers have sought to resist participation in illegal acts ordered by superiors. One example is to desert and seek asylum from a neutral third party rather than to participate or be associated in military or police operations that violate the basic norms of human conduct. Another example is to directly confront the illegality by challenging the orders themselves. This can lead to perilous consequences requiring one to potentially desert and seek refuge elsewhere. In other circumstances however (such as Warrant Officer Hugh Thompson, Jr. who along with two others saved villagers from being massacred at My Lai), the act of confronting illegality, while not received well at first, may garner affirmation at a later date, and thus legitimized.

COW affirms the difficulties inherent in a soldier's disobedience of manifestly illegal orders. A soldier is required to obey orders unless manifestly illegal. Yet as COW demonstrates, where an individual soldier is severely outnumbered and threatened with death by "friendly fire", disobedience presents its own set of dangers. Indeed, in a context where superiors (may) seek to turn a blind eye to atrocities, and indeed discourage or punish those who wish to bring information to light, a soldier's duty to refuse compliance with a manifestly illegal order becomes that much more difficult. They risk severe ostracism for breaking ranks, which apart from effecting a social death, may lead to an actual fatality by friendly fire.

Sources Consulted

Casualties of War, 1989, DVD (Culver City, Calif.: Columbia TriStar Home Entertainment, 2004).

Key v. Canada, 2008 F.C. 838, (2008), 331 F.T.R. 137.

Joshua Key, with Lawrence Hill, The Deserter's Tale: The Story of an Ordinary Soldier Who Walked Away from the War in Iraq (Toronto: House of Anansi Press, 2008).

Martha-Marie Kleinhans & Roderick A MacDonald, "What is a Critical Legal Pluralism?" (1997) 12 Canadian Journal of Law and Society 25.

Mark J. Osiel, Obeying Orders : Atrocity, Military Discipline, and the Law of War (New Brunswick, N.J.: Transaction Publishers, 1999).

Re ZH, Refugee Appeal No. 2248/94, 7 December 1995, Refugee Status Appeals Authority, New Zealand.

Joanne P. Sharp et al. Entanglements of Power: Geographies of Domination/Resistance (London: Routledge, 2000).

Saturday, May 30, 2009

Resistance in the Military: The Crimson Tide Paradigm

The interplay of resistance and law has been an important feature of films about the military and/or military culture.[1] In (some of) the public’s imagination, the military often carries, inter alia, the aura of power, law and order, in addition to respect to discipline and hierarchy. In several films however, these concepts are challenged. This defiance has tremendous implications with respect to discipline, for when orders are issued, it is expected that they are to be followed. However, what certain films depict is that when the dominant power of superior officers is exercised in a manner that is in contravention or inconsistent with certain norms governing their conduct, their decisions are justifiably challenged by subordinates who in turn exercise what radical geographers would characterize as resisting power.[2] Furthermore, such insubordination is ratified and is perceived to lead to ultimately beneficial consequences.

One of the critical expectations of military personnel is that they follow the orders of superior officers, almost unquestioningly, except where the orders are manifestly illegal (e.g. ordering the rape and/or torture of an individual).[3] However, when the orders appear otherwise legal yet questionable given particular facts and circumstances, to what extent should a subordinate be expected to follow a superior’s orders – especially when observing such orders may lead to nuclear holocaust or widespread disaster? One film in particular tackles this scenario.

In the film, Crimson Tide, anti-American Russian rebels revolt against their government and obtain control over one of the country’s nuclear installations. The rebels claim that any attempt by their government or the United States to force them to surrender control of the facility will lead to the launching of nuclear missiles at the United States. A United States submarine, the USS Alabama, is deployed into Pacific Ocean bearing nuclear warheads aimed at Russia. After being deployed, the Alabama receives authenticated orders that the use of nuclear weapons against Russian targets is authorized. As the crew prepares to launch the missiles, under the assumption that an attack on the United States is imminent, they begin to receive a second priority message, the transmission of which is interrupted by an attack by a Russian submarine sympathetic to the rebel cause. After the Alabama is able to evade the enemy submarine, the Alabama’s captain, Ramsay (played by Gene Hackman) orders the recommencement of the missile launch. Given their depth, the Alabama is unable to receive the second message in its entirety due to damage inflicted on the vessel’s communications. Yet rather than verify that the second message doesn’t countermand the first order to launch, Ramsay proceeds. He is however challenged by his Executive Officer, Hunter (portrayed by Denzel Washington) who believes that Ramsay’s decision to pursue the launch is unadvisable - given that the original order to launch may have been rescinded. Ramsay responds that without a properly authenticated second message, the original orders in hand remain in effect. After Ramsay ignores Hunter’s suggestion to bring the submarine up to the periscope depth in order to properly receive the full message, Hunter refuses to concur with Ramsay’s order to launch the missiles, a procedural requirement necessary for the launch to proceed. Ramsay then orders Hunter’s arrest and to have him replaced with another officer willing to concur with his order and comply with what Ramsay ultimately believes is a formality. Hunter in turn relieves Ramsay of his command for his attempt to circumvent fundamental procedural rules respecting the launch of nuclear weapons. Hunter orders that the “Chief of the Boat” have Ramsay removed from the bridge and confined to quarters.

Before Hunter can have the Alabama in position to receive the entire second message, the Russian submarine attacks once again. Although the Alabama is able to ultimately destroy the enemy submarine, the necessary radio equipment is damaged. As Hunter orders and urges the radio technician to quickly repair the equipment, Captain Ramsay is freed by officers loyal to him. Ultimately an armed standoff takes place on the bridge with men loyal to each Ramsay and Hunter each aiming firearms at one another. Ramsay tells Hunter that the latter has two minutes to have the radio repaired and receive the entire second message or else relinquish the keys to fire the warheads. The radio is of course (conveniently) fixed in the nick of time and the second message ultimately reveals that the rebels have indeed surrendered control of the nuclear installation and the launch of nuclear weapons is called off. Ramsay, recognizing that Hunter’s insistent actions ultimately prevented a nuclear war, retires to his room.

At the close of the film, a hearing panel is convened to investigate the mutiny and events on the submarine. The panel concludes that “on the record” the actions of either man did not warrant punitive action. Ramsay decides to retire from active duty and Hunter receives his next assignment (with a positive recommendation from Ramsay). Equally however, the panel also states, that unofficially, both men “created a hell of a mess”; by not working together to resolve their differences – what resulted aboard the submarine was a mutiny (legitimized in the case of Hunter).

What was in play in Crimson Tide was a critical difference in how both characters interpreted procedural norms. Both Ramsay and Hunter believed that they were following the proper protocol. For Ramsay, the circumstances dictated a clear and narrow response: in the absence of an authenticated second message countermanding the original order to launch the missiles, the latter command still remained valid. Ramsay indeed raised the possibility that the second message was not authentic and every second wasted contained the possibility that the rebels could mount a first strike. For Hunter, the threat of an all-out nuclear war militated against a narrow following of the original order to launch: absent full knowledge of the second message’s contents and confirmation of its authenticity, the gravity of launching the nuclear missiles was too substantial to do otherwise. In Hunter’s mind, knowledge of the existence of a potential second message that could avert the imminent loss of millions of lives required a broader approach to interpreting the protocols. Implied in the tone of the film and reading into the success of Hunter’s interpretation in averting nuclear holocaust, what seems to be posited therefore – in the context of military decisions - is an endorsement of a thoughtful broader interpretation of rules, rather than a simplistically narrow reading of the relevant norms.

Crimson Tide is also an interesting exploration into dimensions of power – and particularly the fluidity of the dynamic between dominant power and resisting power and the ability of each to impose their interpretation(s) of relevant norms. Both men play the role of the dominant power and resisting power. Ramsay represents the dominant authority figure while he is in control of the ship except where he is forcibly relieved by Hunter. While Hunter assumes control, it is Ramsay, notwithstanding his title as captain, who suddenly becomes the resisting power. Notably, when Ramsay regains command of the submarine with the use of firearms along with a band of loyal officers, he is the one who is committing the illegal act of resisting Hunter’s legal assumption of control.[4] In the final standoff near the end of the film, arguably neither is dominant, neither is resister. Ultimately it is only a reading of the second message that will confirm which of their approaches was the right choice and interpretation.

In subsequent posts, I will explore other instances of resistance and law in the context of military-related themes in film.

1. This blog posting is part of an overall series that I am exploring about how themes of resistance and law are intermixed in various artistic productions. See my posting from February 6, 2009, entitled “The Resistance Strain in Jurisculture” -

2. See Joanne P. Sharp et al. “Entanglements of Power: Geographies of Domination/Resistance” in Joanne P. Sharp et al., eds., Entanglements of Power: Geographies of Domination/Resistance (London: Routledge, 2000).

3. See Mark Osiel, Atrocity, Military Discipline & the Law of War (London: Transaction Publishers, 1999).

4. It should be remembered that the law permits a second in command to sometimes coercively relieve a commanding officer due to some disability or illegality. In case of the office of the President of the United States, section 4 of the Twenty-Fifth Amendment permits the Vice-President to relieve the President of his power and duties. There are however limits to this power as set out in the section.

Sunday, May 24, 2009

Genocidal Trek

There is no doubt that the recently released movie version of Star Trek features many of the same traits which fans have embraced for years, such as futuristic plots, stunning special effects, and phrases which have entered the popular lexicon. Indeed, it is easy to watch the new Star Trek and be so caught up in the plot that the actual meaning behind the plot lines becomes secondary. And yet, to do so would be an injustice to a story that highlights important issues facing international law and the international community.

The nemesis in the current installment of Star Trek is Nero, initially described as one of the last inhabitants of the planet Romulus. Eventually, the audience learns that, over a hundred years in the future, Romulus is threatened by a black hole and faces extinction. The future Spock offers to save Romulus and its inhabitants – and nearly does so – however he is thwarted by the quickness of the black hole. As a result, Romulus disappears, taking with it the majority of its inhabitants, including Nero’s wife and unborn child. Nero then vows revenge on Spock and both go back in time; Nero arrives first and captures Spock, who he condemns to live on a small planet until Nero is able rework the past and destroy Vulcan (Spock’s home planet) before Spock’s helpless eyes. Nero explains to Captain Pike of the USS Enterprise – whom he captures and tortures for information – that he intends to avenge the loss of his family and planet through a “genocide” similar to that which they suffered. He plans to destroy all planets in the “Federation,” including Earth and Vulcan, because he sees the entire Federation as responsible for the destruction of Romulus. Nero goes to great – and somewhat successful, at least in terms of the destruction of Vulcan – lengths to carry out this goal. Ultimately, Nero is killed by Captain Kirk, young Spock, and the crew of the USS Enterprise, and the remaining planets in the Federation which Nero so methodically targeted are saved. However, Nero’s impact extends far beyond the end of the movie credits.

In Nero, we see the figure of someone who has suffered a deep and profound personal loss. Rather than being a sympathetic character, however, Nero is portrayed as evil. His losses drive him to seek the destruction of planets – which can be analogized to states in the international system – and deaths of billions of people and traditional ways of life. Beyond a personal vendetta, Nero’s co-opting of other surviving Romulans to assist in his plot – and his statements that he is engaging in his plot to avenge all Romulans – is emblematic of recent genocidal regimes, which have used the propaganda of past wrongs by other groups in order to dehumanize them and give rise to a climate in which genocide and attempts at human and state destruction can be perpetuated with perceived justification.

The type of justice sought by Nero for the deaths of his family and the destruction of his planet is not justice as the rest of the movie characters and communities know it. Instead, it is itself another crime – greater in planned scope than anything done to Romulus. And, rather than seeking impartial justice for what Nero perceives as Spock’s failure to save his family and planet, Nero’s choice is to sentence Spock to a punishment of Nero’s creation and which was designed to make Spock suffer the same sense of loss and horror that Nero experienced. This shunning of impartial justice is again similar to the choices made by many actors in recent genocides and civil wars, where the decision to seek individualized and greater vengeance outside of the established national and international court system has perpetuated the cycle of war crimes and destruction.

Certainly there is a good deal of storytelling and creativity in the overall plot of the newest Star Trek movie. In addition to other cinematic commendations reaped upon Star Trek, it should receive attention for subtly yet powerfully relating aspects of many current and past genocidal acts and conflicts that have changed the state of international law and the international community.

Information on Star Trek is available at .

Wednesday, May 20, 2009

Systems of Justice

The first regular episode of the seventh season of 24 featured Jack Bauer testifying before a Congressional panel which seemed dedicated to the destruction of Jack and the sense of patriotism that caused him to commit the acts he became well known for in previous seasons. The atmosphere of the Congressional committee room was formal and rigid, and the parties involved were eager to challenge each other, making the encounter tense. The method used to pillory Jack seemed to be harsh and unfair, creating the idea that the overall type of justice which the lead inquisitor, Senator Mayer, was attempting to impose was vindictive and counter-productive.

One of the very last scenes of season seven showed Jack, near death due to his exposure to the bio-weapon he was trying to keep from those who would use it against the American public, essentially waiting to die in a hospital. He had previously reunited with his daughter, Kim, made peace with her for their past falling-out, and then sent her away so that he could die without exposing her to the grotesque process of death due to the bio-weapon. Jack is alone except for his medical team when he is informed that he has a visitor, and is seemingly surprised when that visitor is Gohar, an imam who Jack met earlier in the day. Their initial meeting was far from cordial, with Jack seeking information from Gohar regarding a member of Gohar’s congregation and Gohar reacting to Jack with disgust due to Jack’s reputation. Indeed, one of the first comments Gohar makes to Jack is that he saw him at the Congressional hearing, said in a derogatory tone. However, when Gohar accompanies Jack and Renee in their search for his congregant, and when Gohar sees Jack’s attitude toward the congregant change once he realizes that the congregant has been unwillingly brought into a plot by Tony Almeida, Gohar’s views of Jack change.

When they are alone at the hospital, Jack tells Gohar that he asked him to visit in order to apologize and seek forgiveness. Instead of asking for more, or reminding Jack of the previous acts which caused Jack to seek forgiveness in the first place, Gohar extends his hand to Jack and suggests that they both seek forgiveness for their previous actions. They each spend a moment in quiet prayer and then Jack signals that he is ready to die, after which his doctors put him in a comma to ease the suffering of a biological weapon-induced death. Gohar stays with Jack and when Kim returns to insist that she be allowed to participate in an experimental procedure that might save Jack, she is greeted by Gohar, who identifies himself as Jack’s friend.

Other than Jack, what is the connection between the opening and closing scenes of season seven? Certainly it is nothing aesthetic – there are perhaps fewer obvious contrasts than between a politically charged Congressional hearing room and the hospital room of a dying man. And certainly it is not in the other characters involved – again, there are fewer glaring contrasts than a near-rabid Congressional inquisitor and a quiet, peaceful religious leader. The connection between these scenes is that they each portray a system of justice, and the contrast between the two raises the question of how success is viewed from the perspective of justice.

In the Congress-implemented system of justice, Jack is called before the panel – led by an extremely zealous and highly opinionated Senator – in order to be excoriated for what the panel’s leadership views as immoral conduct. Jack is brought to the panel in order to be the scapegoat not only for his own actions but also for the entire CTU entity, which we quickly learn was dismantled after the sixth season due to the continuous crusading of Senator Mayer. Senator Mayer and his panel hold Jack up as the representative of CTU and intend to dress him down publicly in order to receive a vindication of their actions to end CTU. They seek to punish him through a system of justice in order to promote their interests while at the same time indicting a person and the system of enforcing justice which he is deemed to represent.

In the system of justice used by Gohar, the anger at Jack ends when it is realized that he is not in fact a monster or on a mission to target the Muslim population at large. Rather, Gohar’s system of justice involves talking to Jack as a person and seeking to understand him in order to comprehend what he has done. There is no attempt to publicly flaunt Gohar’s relationship with Jack. When he believes he is about to die, Jack reaches out to Gohar because he represents those who Jack believes he has wronged and yet is still willing to listen to him. Gohar’s system of justice is to lead Jack in prayer and to grant forgiveness without personal gain other than the knowledge that he is doing his religious duty by helping a repentant, dying man.
The contrast in systems of justice, when viewed as such, is extremely stark. Of course, one system of justice is political and one is religious, but that is not the extent of the contrast. Rather, the contrast comes in the way in which the system administers and understands justice. While the Congressional system is vindictive in its justice and understands its role as furthering such a concept, Gohar’s system of justice is open to those seeking to avail themselves of it and does not seek to condemn. Both systems of justice would likely find supporters, and the purpose of this blog posting is not to explicitly favor one system over the other. Rather, the purpose of this blog posting is to highlight these systems of justice and their placement in the storyline of 24.

Information about 24 is available at .

Sunday, May 10, 2009

Stuck in the Middle

The “Better Half” episode of Lie to Me presented what was, on its face, a rather simple case in which Foster and Torres are asked to assist in the investigation of a murder within the rap music industry. The victim, Dante Edwards, a member of the group affiliated with rap star Little Sid, was shot and killed; the initial suspect is rival rapper, Caden, or a member of his group.

Background information on Caden reveals that his music is particularly violent and glorifies murder. When Torres and Foster arrive at Caden’s home, they comment on its size and affluence; when they present themselves for an interview with Caden, his cousin and deputy, “B,” tells them that Caden does not speak to the police because it would have a negative impact on his album sales and reputation within the rap community. However, Caden relents and grants an initial interview. The interview between Foster, Torres, law enforcement, and “B,” is fruitless in establishing a clear link between Caden and Dante’s death. Indeed, Torres detects genuine sadness from Caden when he discusses Dante and his death. It becomes apparent that Dante, Caden and “B” grew up together and there was not a real sense of animosity between Caden and Dante at the very least.

When footage of a purported confrontation between Caden, Little Sid, and their respective groups is reviewed by Torres and Loker, they notice that the facial expressions indicate that the argument is fake and speculate that the rivalry was created to increase attention and record sales. Further analysis of the confrontation tape, and Dante’s facial expressions on it, leads Torres and Loker to conclude that Dante was in fact a homosexual. This revelation makes Torres and Loker suspect that the murderer is in fact someone within Little Sid’s group, or Little Sid himself, since the lyrics of Little Sid’s songs are profoundly homophobic. Torres and the assigned police detective then pay a visit to Little Sid to question him. Little Sid tells Torres that he knew Dante was a homosexual and that he didn’t have a problem with it because Dante kept it quiet. When asked by Torres about his homophobic song lyrics and their relationship to Dante, Little Sid states: “I got records to sell. So if I have to hate, I’m gonna hate, but I got no problem with Dante doing his little Brokeback thing.” Upon further questioning regarding his violent lifestyle, Little Sid again explains that the guns and violent accoutrements associated with his image are for the sake of image alone and that he is an entertainer, not a criminal. However, Little Sid does reveal that Dante was about to leave his group and join Caden’s group.

This bit of information causes Torres, Foster and Loker to re-evaluate Caden and his group members as suspects in Dante’s death. Torres pays another visit to Caden’s home, and is barely able to get past “B” in order to see Caden. During their conversation, Torres deduces that Caden and Dante were in a romantic relationship. Caden admits this and then goes on to lament the fact that he was unable to attend Dante’s funeral because of the image he was trying to maintain. Ultimately, both Torres and Caden focus on “B” and his involvement in the murder. It is then that “B” admits he killed Dante because he was afraid that Dante and Caden would be “outed,” thereby ending Caden’s career. “B” attempts to justify Dante’s murder by reminding Caden of their rough childhoods and how far they had come because the image that they had crafted, an image which would not allow Caden to be identified as homosexual. The story concludes with Torres and Caden watching as “B” is put in a police car.

In this plotline, more than unexpected twists and turns emerge. Strikingly, we see characters that are caught between the world in which they have chosen to live - and which has made them famous and wealthy – and the world with which they identify personally. These characters are stuck in the middle because their true identities are deemed to be incompatible with the personalities they must adopt in order to be successful in a culture that has helped them out of difficult personal backgrounds and circumstances. This storyline demonstrates the realities of people caught in social worlds and norms that cause them to strike out against things they personally embrace and to allow – and even condone – violence as part of these norms. It also shows how parallel norms can exist and yet only one norm is recognized by people who feel threatened at the idea of acting outside of the mainstream norms.

The story of Caden, Dante, Little Sid, and their relationship to homophobia is one example of these dual normative relationships. For Caden and Dante, they must deny their true sexual identities and emotions because these identities and emotions are not publicly acceptable in the world in which they live. The cost to each of them would have been their careers and wealth, and, in Dante’s case, the cost was his life. Little Sid finds himself in a position where he glorifies homophobia within the rap culture through his songs – although he himself is not homophobic – in order to be successful within the norms and rules of the culture itself. There is no attempt to change the culture because of the comforts and identity it affords. The same can be seen in Little Sid’s statement that he is an entertainer and not at heart violent, but that he sings about violence and exemplifies it in his personal image and conduct in order to fit into the predominant culture associated with the rap music industry.

Through Caden, Dante and Little Sid’s embracing of this duality of public and private, one can see how many philosophies and norms of hatred are perpetuated in written and unwritten laws by people who otherwise do not espouse these same philosophies and norms. One also sees the personal difficulties experienced by those who are stuck in the middle of accepted norms and their own identities, and, especially in the case of Little Sid’s adoption of a violent and homophobic persona over his naturally artistic and tolerant personality, we can see the justifications which are made in order to continue being stuck in the middle.

For information on Lie to Me, see .