a blog of songs, many of them from the nations of eastern & central europe, & also of musings, links, poems & poetics, vertices, hand-sparrows, modal shifts, trefoils, the efforts of searching, chalk, astrolabes, a light on swamp gas.
I could seriously give a crap about the fucking president, but yesterday Benjamin Jealous, the president of the naacp, made a beautiful speech:
also, it's Sun Ra's birthday today.
happy birthday to Sun Ra.
now, one nice thing about the internet is that everybody's internet is different from everybody else's. we each get our weird own internet. & if yours is anything like mine, today it bloomed completely Dan Magers. I don't know whether it was planned or what, but a Magersia Majora swept over the land, filling my day with the cracked vaudeville of Dan's great new book partyknife.
MIND QUEEF, A ONE-ACT PLAY BY HITLER
Technically, the dumpster in back is part of the Whitney.
I love, and just push my heart out.
I can't be psyched to play Guitar Hero,
because it reminds me that I can't play real guitar.
A manner of fashion that could transcend ten months
and become the fashion forever.
I am quiet and also very boring.
The idea, the list, the spiritual realm -- a litany, a soul sick
list plus
transcendent, gravity plus parallel
plus journaling plus lament.
Also Zem is NOT San Francisco's eco-fashion guru;
she is San Francisco's eco-lifestyle guru.
This is important.
this book torques violences & there's a kind of a great electricity. how to live where the "stars are geometric-utopian / and fascist"? what to breathe in the flashing instant of being recognizable? yourself upside-down. sometimes I too "think that I'm doing all this cross training / so I can do more cocaine". Dan's book is funny & itchy & uncomfortably like being someone. "the fantasy of infinite impact", for real.
by the way the book hits stores in a couple weeks & for now you can buy it here.
Every Day
Every day
in a little way
things are done.
Every morning there is
a day. Every day
there is a day.
Waking up in a bed
with a window with light,
with a place in mind,
to piss, to eat,
to think of something,
to forget it all,
to remember everything,
perfectly, each
specific, actual detail,
knowing nothing,
having no sense of any of it,
not being a part of it,
all right for you,
all right, you guys --
echoes, things, faces.
is terrific, right? is Robot Creeley, auf keurz.
Twilight Thinkers
Athens was dying, and with it the worship of knowledge. The great systems had run their course: limited to the conceptual realm, they rejected the intervention of torments, the pursuit of deliverance and of inordinate meditation upon suffering. The declining city, having permitted the conversion of human disasters into theory, no matter what -- sneeze or sudden death -- was supplanting the old problems. The obsession with remedies marks the end of a civilization; the search for salvation, that of a philosophy. Plato and Aristotle had yielded to such preoccupations only for the sake of equilibrium; after them, such concerns prevailed in every domain.
Rome, waning, took from Athens only the echoes of its decadence and the reflections of its collapse. When the Greeks exercised their doubts throughout the Empire, the latter's downfall and that of philosophy were virtually consummated. All questions seeming legitimate, the superstition of formal limits no longer prevented the debauch of arbitrary curiosities. The infiltration of epicureanism and of stoicism was easy: ethics replaced the abstract structures, bastardized reason became the instrument of praxis. In the streets of Rome, with carious recipes for "happiness," swarmed the epicureans and the stoics, experts in wisdom, noble charlatans appearing at the periphery of philosophy to treat an incurable and generalized lassitude. But their therapeutics lacked the mythology and the strange anecdotes which, in the universal enervation, were to constitute the vigor of a religion unconcerned with nuance, a religion originating more remotely than they. Wisdom is the last word of an expiring civilization, the nimbus of historic twilights, fatigue transfigured into a vision of the world, the last tolerance before the advent of other, newer gods -- and of barbarism; wisdom, what we call sagesse, is also a vain attempt at melody among the environing death rattles. For the Sage -- theoretician of a limpid death, hero of indifference, and symbol of the last stage of philosophy, of its degenerescence and its vacuity -- has solved the problem of his own death... and has thereupon suppressed all problems. Provided with rarer absurdities, he is a limit-case, which we encounter in extreme periods as an exceptional confirmation of the general pathology.
is true, no? is komrad cioran, of kvass.
I urge... that a poem is not wise, even if it is: that any wisdom which gets into any poem is solely a quality of the moment of time in which there might happen to be wisdoms.
There are obviously seizures which have nothing to do with wisdom at all. And they are very beautiful.
Or maybe I don't believe it's "beauty," any more than I believe it's "light"... how Bill has it in "To a Dog Injured in the Street," that he and René Char both believe "in the power of beauty / to right all wrongs." Maybe I think this is also partial, social, wisdom.
"It is time (love) is difficult, Mr.
Beardsley"
I'm so foolish. A song is heat. There may be light, but light and beauty is no the state of: the state is the grip of (and it is not feverish, is very cool, is -- the eyes are -- ow did they get that way?
"He who controls rhythm
controls"
This wld seem to me to be the
END
Otherwise, we are involved in
ourselves (which is demonstrably
not very interesting, no
matter
who
howdy yesyes bop, mais non? Charlez Olson, quack quack.
First of all, here's what I saw, beginning from the moment I found myself amid a river of acquaintances and strangers being nudged and kneaded forward, the rude fists of "cosmonauts" at our backs. They were barking like the cops in a soviet war movie: "keep it moving!", "no stopping!" Hard to say whether you were in one of those movies or caught in an anxiety dream.
At some point, one of the cosmonauts, apparently someone high-ranking, silently pointed at me. Immediately one of his junior officers approached me without a word, grabbed my arm just above the elbow, and started dragging me to a paddy wagon. As luck had it, this was all happening in full view of a group of reporters, and within a couple minutes -- before we had made it to the jail bus -- my phone burst into unrelenting ringing.
To be completely fair, the guy who dragged me off wasn't some savage teenager. He was a middle-aged guy who, while pulling me along, managed to ask, "So, you're supposed to be some kind of a writer, is that right?" "Yeah," I replied. "You could say that." "So what do you write?" "You know, books." "Books -- nice," he said, not too convincingly. Then he added, "I'm glad you're not resisting. I've got a broken arm -- look, you people did this yesterday." "We people?" I asked. "And who are 'we people'?" "Well, these people, the demonstrators*." "Hm, do you think maybe there was no need for you to disperse these non-violent people?" I asked. "We have our orders," he replied, "and we follow them."
I have to say, he seemed basically to be a pretty decent guy. (I tried to be nice too.) But our nearly friendly conversation dwindled as we reached the goal of our brief, but significant, travels. Just as we got there, I remembered that I had a press pass in my pocket. "Here," I said, "my credentials. I would very much like to know on what grounds and for what reason I am being detained." Having checked out my media pass, my interlocutor said nothing, just indistinctly waved one arm while releasing me from the other. Suddenly, I realized, I was free.
My phone in the meantime had kept on ringing continually. I managed to get the word out that I was OK. I found out news of my arrest had made several radio and internet broadcasts, some of which had seasoned the report with a story of my being savagely beaten. Luckily, that news hadn't found its way to the eyes and ears of my family. I felt a little bit like that one Chekhov character who falls under the horse and briefly becomes, as we might put it today, a newsmaker.
I'm completely OK, thank god. But a lot of other people, grabbed and tossed into wagons with outright rudeness, cruelty, even barbarity -- a lot of them are completely not OK.
People of every age and gender grabbed and thrown into police cars without rhyme or reason.
These "cosmonauts" seemed in the truest sense to be nothing but zombies -- their eyes empty & unpitying, they moved like robots programmed to do exactly two things: grab things, and drag them off.
In the streets yesterday, and at Bolotnaya the daybefore, the powers that be once again made unmistakably crystal clear, to their citizens and the whole world, what has been more or less apparent all along. They, the authorities, have tipped their hand: they're aware of their own illegitimacy. Indeed, no legitimate authority could be capable of carrying on with such cowardice, such cruelty, such cynicism toward the law-abiding citizens of its own country.
While people whose only crime was a considered sense of their own responsibility for the fate of their own country were being held in the squares and on the sidewalks, while they were being crammed into paddy wagons and lovingly stroked in the ribs by billy clubs, over there, across the toothed palisade that marks off the jail they're turning our country into, a syndicate of thugs was busy dropping a crown on the head of its ignominious godfather. But we don't have the right to forget: like the rest of them, he's not just unbound by the law -- he's completely outside it. Because they're not even thieves. Just bitches. In every sense but literally -- I personally have a lot of respect for dogs of either sex.
Watching this play out unreally all you can think of are those old newsreels where you see Warsaw in '39, or Paris in the 40's, or Prague in '68. You want to cry from the feeling of historic hopelessness.
That's just how it is. But looking at all the faces around you, young and not so young, seeing their total fearlessness and refusal to back down, even in the face of dully swinging nightsticks, you get overcome by a completely different feeling. Even a certainty: this is all just the beginning.
*maybe interesting: the cop's word for protestor is митингующие, mitingujushchie, the present active participle of the verb митинговать, mitingovat', which in turn is the verb form of the russian adoption of the english word meeting, митинг. but unlike english meeting, russian miting specifically suggests a political demonstration. also, whereas the ng in english is a diphthong indicating a velar nasal consonant, in russian нг is pronounced as two consecutive consonants. russian for shanghai is шаньхай, shan'khaj, where the ng sound of the chinese is pronounced in russian as a palatal n (ñ).
the sign says, "really, letting those same goats -- back into the garden?"
"the vast majority of political prisoners in russia are muslims... fascism, anyone?"
(am I getting the tone of this right, russkies?)
"liberty is secured by public transparency"
"I'm not being paid off. I'm a citizen of Russia and I will defend my constitutional rights."
"All are equal before the law (the rest is blocked)"
"I (cock & balls downward) the 2011 elections."
"I detest this government, deceitful and vile."
the detested OMON, as in, among other things, V. Pelevin's Omon Ra.
please don't forget however that the actual cosmonauts, literal cosmonauts, are the heroes of the people.
"where's my voice?"
"we must have clean elections!"
The Constitution of the Russian Federation
interesting to see so much constitution talk. the words "constitutional tradition" don't conjure onion domes for most of us. what a beautiful thing. in russian they're called poppy domes, which is far sweeter. congratulations to russia!
lately, when I sign in to blogger to write a blog post, a beautiful, shimmering button appears, emblazoned with the glorious word: monetize. that's right, friends, you might just be making me the big bucks right as we speak.
or maybe not.
it's tempting, tho, because I love money. don't you just love money? I wonder what enhancements the market might bring to bear on my humble bloglet. goosebumps! fledgling democracy aflutter in my fingertips. you people have been freeloading long enough.
just joshing. a few nights ago I chatting with a friend about this blog, & he said: one thing, it's a music blog but you never post any music. he's right! there's just so much to talk about. but a lot to share music about too, so ok. well I've been cooped up in the house a lot, doing a lot of work. one thing I've been doing over & over again is listening to my bloody valentine. here, watch this, on the biggest screen you have, real loud, built-in computer speakers strictly verboten (try headphones):
ooooh. listen, the world can hardly benefit from one more person mentioning that I've noticed my bloody valentine are amazing. clearly, we agree. part of what's so interesting to me is that loveless, the 1991 record that's obviously their central work ("the rest is commentary"), just wrecked them -- they stopped recording almost completely & Kevin Shields, the band's leader, went crazy sort of Brian Wilson style. & when you listen to loveless it's easy to understand what wrung them so severely, which is what still makes loveless such an effulgent cave, lush with martian mosses: Kevin Shields had decided to record it perfectly.
loveless is the sound of a band's absorption into the textural & rhetorical reality of the recording studio, much as Alvin Lucier's I am sitting in a room is the sound of a human voice being absorbed into the special acoustical tendencies of a particular room. both feature a parallel reversal: fore & ground swap. on loveless, the studio plays the band, using the actual instruments & voices as a resource thru which textural ideas can be articulated.
& it struck me that that makes Kevin Shields part of a tradition that exists I bet in all styles of music, a tradition of focusing on textures & their interrelated contours within the music, not instead of but with more focus than melody or harmony or whatever. (language that might offend some of the actual music to be associated with it -- pardon my sarong). in particular, I'm interested in that particular swap, where color overtakes harmony, orchestration uses composition to voice itself, a beat is an opportunity for textural & rhythmic overlay, the music becomes an articulation of the room. I got to thinking & came up with a few favorites.
so one obvious example to me is J Dilla. again, it would be silly to try & throw my hankie on top of the mountain of praise that exists for J Dilla. it's always seemed to me that his musics beg for the resuscitation of that mainstay of '60's jazz writing, the adjective tasteful. tantalizing to think where his omnivorous sensibility would've expanded to if he hadn't died in anguish when he was 32 of an exotic blood disease called thrombotic thrombocytopenic purpura. (nothing that starts with two thrombos can be good. I gather ttp is essentially the formation of tiny clots within the blood, which appear thruout the body & tear on all its bloodways, cells & vessels alike.)
obviously I don't need to persuade anyone that J Dilla is the greatest. here are some ways I like hearing him, tho.
so, if you were alive in the mid-90s, you presumably remember this song, & its Hype Williams video:
& verily, Busta Rhymes was born.
the beat to that song is by Rashad Ringo Smith, a big deal in his own right. I like its haywire exuberance, the she's-gonna-blow energy that enlaces with BR's vocal delivery to keep it cranking onward in a sort of a victory march warped by the sun.
but now, here, click here to listen to J Dilla's remix of it. the change is amazing. Dilla assimilates all the quirk & urgency & somehow rearranges the song into what seems to be its most eloquent possible iteration. he never rounds corners, but he finds sound-forms that just match. there's the pleasure of distillation -- & distilling, they say, is beautiful -- & of "actual measure".
his palette is huge & there's almost never a false move. nothing like this is a rock song of the rich-color-bursting-out-of-the-bag variety, sounding almost like any of a whole industry of tinsely sincerity music. except the sounds are all weighted revelatorily against each other in their twinkling, and lyrics are boiled down to their pure syrup. it's just perfect. the platinum elevators or whoever may have made this song but they never made it like this. elsewhere, the condensation & lucidness of early work like get down (this song does so much just by the shape of its beat!) focus over his career into the ghost-swan textural assertions of over the breaks, about ten years later.
there's waaaay too much amazing Dilla music for it to make any sense that I try & post a good sampling of it here. but I can't bear the thought of not also offering tipster, to me just an astoundingly sensitive & lovely &, yeah, tasteful piece of music. also, dig dont say a word, another hip-hop instrumental that is also a perfect pop song from outer space, neon-sharp sounds streaking lushly thru a mist of resonances, the lead in the bass, the tempo Ray Charles perfect. holy shit SO GOOOOOD. ok ok, I'll stop.
no! I can't stop, not without quickly revisiting just a couple of the epochal rap songs he produced. it says a lot that dynamite! by the roots, stakes is high by de la soul, & runnin' by the pharcyde were all produced by the same guy. a lot, for one thing, about a community of musical collaborators. & also about one person's terrific industry: hearing, rehearing, synthesizing sounds.
when he sailed off he left crates and crates of tapes, soundings-out & -thru of different songs, his own & other people's. & there is good news in this department, which is nice.
o yeah &:
it seems natural that the final form of a lot of music oriented around textures, shapes, & shadings would be a recording. in the slightly older days, we thought of these as 'compositions for tape', a category that for me embraces work like my bloody valentine's loveless & J Dilla's donuts as readily as poème électronique or anything. it makes sense because when the final piece is a recording, the person making it has especially complete control over how the textures and colorations will blend.
but there's innumerable other ways to heat a potato. & since today I seem to be blogging only about people who have received gigantic globs of critical adulation, I also want to listen to some Thad Jones. Thad Jones was the greatest jazz arranger of all time (his little brother Elvin was the greatest drummer of all time. sorry if this all sounds like saying my favorite painting is guernica but come on, there's nothing better. their big brother Hank was also an ice-solid piano player. the title of this blog post is going to be: my taste runs, eh, pretty standard.) like Dilla, the Joneses came up in Holy Detroit, cult city of american musics.
it's not that there's anything wrong with Thad Jones's trumpet-playing (any more than what I said before was a dig at Kevin Shields's songwriting). but it's his work as bandleader, and especially as an arranger, that drenches me in superlatives. here, just listen to tiptoe off his 1970 record consummation, with the Mel Lewis orchestra. the tones spin each other in odd chunks as weirdly shaped, & as cumulatively productive, as industrial machinery. pieties to the furnace, ThJ does everything wrong, making a song not by thinking up a melody & chords & then coloring it in by the usual rules (put the trumpets in major triads, give saxes the basic chord with a little extra color stirred in), but by foregrounding deliciously wrong harmonic shapes & structures that build into the song's deepest spelunks. instead of rules this has what someone called "sheer, wonderful life."
& if it's a beautiful glowy gray day where you are also, you might want to check out dedication, too -- the first song on consummation, and probably the most beautiful thing anyone will ever do ever. those chords that start up just before minute 4! (check out also the superparticular bass of Richard Davis -- oooooh yesss.)
alright, alright, I've been typing a long time, but I can't stop without throwing in one more outrageously wonderful texturalist. I do not mean Bach, but I want to start by talking about Bach.
it's no specialer to love Bach than my bloody valentine, Dilla, or Thad Jones. but, if I may transition from championing guernica to championing the mona fucking lisa, Bach's intellect was so wonderful, so expansively alive with secret doors, magic reversals, transcendent structures that somersault & snowball into transcendences of earlier transcendences, that it, well, it fucked music up royally. Bach's ecstatic sternness hovers as the anima of european music for almost two hundred years.
the ricercar a 6 from the musical offering is exemplary. the famous story is JS Bach's composer son CPE Bach (FML) was working in the court of frederick the great, king of prussia. as the norton bach reader has it, frederick had been collecting pianos, a new invention, & Bach Jr wanted Papa Spoon Bach to get to play around on one. so he finagled an invitation for Bach to come to court & perform -- we think of him now as a great composer but he was also a lifelong working musician & a legendary improviser. in a gesture that I don't understand why we don't do this anymore, Frederick presented Bach with a little theme he'd written (by all accounts, nothing special), so that Bach could perform the astounding feat of improvising a 3-part fugue based on it. once he'd done that, to the delight of the crowd, the king demanded a 6-voice fugue, which is a little like asking someone to freestyle a sestina, or toss up a waterbed out of toothpicks & sandwich bags. Bach said he'd have to get back to him.
&, teutonic loon that he was, Bach toootally got back to him -- like, 6 weeks later, he sent him his musikalisches opfer, 'musical offering' -- a sublimely deranged fun-pack of complex musical games arising out of the theme Frederick had supplied. Bach defied margins & shifted the partitions of musical form. there are riddle fugues, scores of a very contemporary feel that consist of just a few bars of music & then instructions (in latin por supuesto) for how to interpret them into entire pieces of music. (there is an underengaged moment for interpretation in these!) there are crab canons, which play a melody backward against itself. mirror canons, canons with epigraphs that turn them into flattering puns. basically, the awesomest thing you can imagine one teenager sending another in the mail. & it's maybe some of the fullest sounding-out ever of the tonal system, an astoundingly acrobatic charge thru a thousand minds' worth of musical math. as deep an exploration into everything as anything ever was, & the ricercar a 6 is by most accounts its culminating moment, the 6-voice fugue that Bach had promised King Meeeow. amazing.
amazing, right? but thing is -- Bach was not into colors. Bach was the opposite of into colors. I mean, I get it: lutheranism was a lot newer then, still had, I think, a lot more radical energy. we make allowances for later artists' marxism or fascism & the attendant disciplines all the time. I think to Bach colors were maybe a little redolent of catholicism, of soul-exploitation.
but Bach in his way like all of us was wrong, & colors is like seriously the best fucking thing. that is why, at astonishing length, I am telling this story really as a way of bringing up the last color-texture music I want to listen to, & that is Anton Webern's. Webern to me makes the first real answer to Bach, is the first to advance in response his own equally coherent other idea, & not something, like everybody till then, that ultimately on some level argues or converses with Bach. & Webern, like Bach, is stylistically austere -- but Webern embraces the austere use of a wider palette of colors, textures, and techniques, while rejecting the rhetoric of tonality completely. instead of the studio hearing the band out of the music, this is the texture hearing the tonality out of the fugue. & this is most literally true in Webern's orchestration of that 6-voice crown in the musical offering, Bach's ricercar a 6.
suddenly, colors & textures come streaming into the cathedral. & here it's just that cathedral -- Bach's composition, I mean -- that gives Webern room to make the tonal explorations he wants without loosing his modernist scruples. he just adopts the space of Bach's fugue as a found room & hears his colors into it, color after color, spanning, turning, terrific.
Webern to me is exactly one of those musician who hears into a formal flux that teaches us so much about what we've been listening to. in Webern's case, it's about the sound-world of the orchestra. this is also really true of his two-movement symphony, which I always thought sort of pitches itself as a kind apocalypse of the whole symphonic tradition. you know, beethoven this! it's got a completely different logic from tonality, one even more exhausting. or exhaustive. anyhow, when a crowd one night at carnegie hall, impatient for Rachmaninoff, jeered at Webern's symphony, driving both Morton Feldman & John Cage to leave, they caught sight of each other on the steps, said 'wasn't that beautiful?', & started a conversation & became best friends. & what the conversation was about was how great Webern had sounded in such a big room. a story worth telling about colors in music.
I also want to talk about something completely unrelated, a topic that devoted readers & personal friends will know is near & dear to me. this is the subject of suing the cops, an area in which there was big news the other day. so, here's a flyover lesson in something (I think is) important. when I write about legal developments, I always imagine myself before law school as my basic target audience. please forgive a little legalizin'.
ok. so. you got rights. or, at least theoretically, you got some rights. (this is in the u.s., I mean. I learned today on the internet that the blog has readers in russia & japan! hi guys! what's it like over there?) for instance, the 8th amendment to the constitution gives you the right not to be subject to 'excessive bail' or 'cruel and unusual punishment'. the 5th amendment gives you the right to 'due process of the laws'. these rights are federal, because they come from the federal constitution. you got rights under the constitution of your state too, sometimes the same ones, sometimes a little different. if rights are granted to you under state laws, they're state rights. (not to be confused with state's rights, a phrase bigots sometimes use hoping to make their violence smell like liberty.)
so, if you've been spending some time in the streets lately, you may have been seeing a lot of government officials violating the rights of a lot of your friends & their skulls. the whole idea that rights exist is a response to the all-thirsting proboscis of sovereignty, which has a particular way of skulking into our beds while we sleep (or straight up our butts if we disrupt the smooth upward accumulation of capital). let's do ourselves a favor & try to think of the government as lonely rather than apocalyptic. whatever. (hi guys! nice sunglasses, btw.)
what a lot of people don't realize is that the court system is supposed to be a main protection against abuses of rights. judges issue warrants to police and other government investigators. habeas corpus petitions enable courts to review the legality of a particular prisoner's detention. and there are two ways a person can sue a government body or official for violating her rights: one is called a bivens action, and one is called a 1983 suit. (bivens actions are named after the 1971 supreme court decision bivens v. six unknwon named agents, which made them possible. 1983 suits are named after the statute that makes them possible, which is title 18 of the us code, section, you guessed it, 1983.) a bivens action is a civil lawsuit for a federal government official's violation of a federal right, and & a 1983 suit is the pretty close state equivalent.
if you're not a person who's routinely abused and humiliated by the police, your countryfolk are. these lawsuits kind of come to sand, tho. you've already been humiliated, treated as an enemy by your government on the most local, sensitive level. some clown in fitted blue peejays might decide to pants you anytime, in public, maybe at gunpoint. these lawsuits play, at the very best, an infuriatingly slow part in any progress toward changing that. but they are important if law is important, the book of what we mean to say or know we see. they can offer us, speaking optimistically, some hand in drawing the daily, rough border between government conduct & people's actual rights. they can also be a place to tell our stories.
naturally, the government isn't going to just accept a thwack in the proboscis every time we catch it secreting away our vital inner juices. no, as legal doctrine in this area has developed, the courts have rolled out, shall we say, a robust line of defenses that are available to federal and state officials when they're accused of depriving people of their rights. of these, the most common is the dread qualified immunity. remember that "tonight I may eat tacos" guy in connecticut? he claimed qualified immunity. the bad guys from kent state? they literally invented qualified immunity (or the supreme court invented it literally for them.) it has more appropriate applications, of course, but my real point is that often these cases turn almost completely on the question of qualified immunity. &, while the details can get pretty hairy, the basic nature of qualified immunity is simple.
government officials are immune from bivens and 1983 liability, even when they have in fact deprived people of their rights, unless a reasonable official in their position would have known that she was violating a clearly-established right. that language is characteristically cockamamie, but it cleaves into two pretty tidy questions: was the right that got violated clearly established? & would a reasonable government official have known that what she was doing was violating that clearly-established right?
José Padilla may be sort of a dillweed. born in brooklyn & raised in chicago, he got pretty interested in terrorism in the late 90s & spent some time flying around the world learning about it. on may 8, 2002, he was arrested at o'hare airport. the warrant that empowered them to take him into custody identified him as a material witness in the criminal case that was still emerging from the events of september 11, 2001. his lawyers quickly sued to demand a review of his detention. but then, on june 9, two days before the federal court decision was due out, president bush declared Padilla an 'enemy combatant'. despite sounding like a pretty meaningful phrase, it wasn't. actually, nobody knew what it meant to declare somebody an 'enemy combitant' in 2002. all they knew was it didn't mean 'criminal defendant' & it didn't rhyme with 'citizen'. that was the point.
(by the way, that federal judge who never got to issue his ruling? don't feel sad, it was none other than notorious racist & gobbering rectum-on-wheels Michael "Mickadoo" Mukasey, who in just five patient & dignified years would be promoted to attorney general. who'da thunk. arg arg monotone.)
Padilla was immediately flushed incommunicado into military detention. bush set a horde of blessed blind monkeys flailing at winged typewriters, hoping one of them would write him a document that said "torturing enemy combatants is tops. go crazy." & in a very blessed & very flailing attorney named John Yoo, he got his wish. Yoo was an assistant attorney general, & what he wrote has become notorious, a set of memos emiting smokescreen that made it sound like there was a lot of head-scratching going on about whether it was legal to torture enemy combatants. but, I mean I guess so? yah, go for it!
this was really great news for the people who really wanted to torture José Padilla. before this it had sounded illegal, but there was no better reason for that than that it is illegal, unquestionably, all the way illegal, basically the most illegal thing possible. now, a guy had written a piece of paper that said maybe it wasn't so illegal. (I like to think that the first draft of Yoo's memo might've had a postscript that begins, "By the way, if you really think about it, how do we all know we're not actually dreaming right now?") so, they tortured him. they tortured him by holding shit in front of his face & making him smell it. they subjected him to sensory deprivation. they didn't let him sleep. they told him they were going to murder him. he says they dosed him on acid and pcp against his will. they denied him access to doctors. they didn't let him tell anyone where he'd been taken. they didn't let his mom see him.
now it's years later, & José Padilla has filed a bivens claim. he's suing John Yoo, alleging that Yoo "set in motion Padilla's allegedly illegal interrogation and detention, both by formulating unlawful policies for the designation, detention and interrogation of suspected 'enemy combatants' and by issuing legal memoranda designed to evade legal restraints on those policies and to immunize those who implemented them." Yoo, of course, asserted qualified immunity. oh, clutch. & the big recent news is that a panel of 3 federal judges in the 9th circuit has just issued its ruling on his immunity.
& what the court found is that, yup, John Yoo is qualifiedly immune. there are two reasons why. the first is that the rights of enemy combatants were not, quo the court, clearly established at the time Padilla was tortured. it has been the law since 2004 that citizens, even when they are detained as enemy combatants, retain a "right to be free from involuntary confinement by [their] own government without due process of law," that they are entitled to "a fair opportunity to rebut the Government's factual assertions [against them] before a factual decisionmaker", that their right to talk to a lawyer is "unquestionable", and that their detention must be "devoid of all penal character." the supreme court set all these standards in its decision in hamdi v. rumsfeld, a case brought by Yaser Esam Hamdi. Hamdi was another American citizen (born in baton rouge), held and tortured as an enemy combatant at the same time as Padilla. his case prompted the supreme court to reinstate habeas rights & prohibit virtually every aspect of the manner in which prisoners like Hamdi and Padilla had been detained, thoroughly starved of due process. but, the 9th circuit asks, how could these rights have been clearly established from 2001 to 2003, before hamdi was decided?
the second reason why Yoo is qualifiedly immune is that, even tho it is "beyond debate" that torturing citizens was illegal before 2001, and even tho the court does not disagree that the government did torture Padilla, it was not clear at that time that the treatment to which he was subjected was torture. "The meaning of 'severe pain or suffering,'" the court notes, "was less clear in 2001-03." thus, a reasonable official might not have known a right was being violated. um, eureka?
this national game of hide-the-bruise makes me sick. the unspoken corollary to this decision is that torture -- & of citizens -- is alright for the government to default to, particularly when it feels confused. one cone of flurrying papers, arising from one desk somewhere in washington, can derange the entire conscience of government. the lights just blink off. this is a big trend in our judiciary. you have the right to remain silent if you will speak to demand it. you have the right to offer symbolic speech, but if it's dialectically effective we'll have to go hard literal with the nightsticks. & you have the right not to be tortured, so long as we have already tortured you.
it's a sad day, for what law is supposed to want to be. qualified immunity my clearly defined ass. another victory for that same authority that shields the armed & depraved bureaucrats of the streets, the taco-mockers, the kent-state shooters, & now the willful stroke sufferers who just can't tell what they're looking at, voluntary zombies of our shame. how's that for a room to be heard in.
o, not quite end. a few things I wanted to share: I thought this article Marjorie Perloff wrote in the boston review was her at her best & really good fun. I had knowne not theire were othyrs like me, oh, but yette theire arre. & also, uh, you guys! you guys!
did you actually read all this? write me a blog comment. call it a blomment. you love it. it's great.
