In a recent New Yorker article (March 18, 2013), historian Jill Lepore outlines a concise genealogy of state torture and capital punishment. Lepore begins with Attorney General John Ashcroft’s shock in 2001 after reading an early draft of George W. Bush’s military order, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terror.” “You’ve got to be kidding me,” Ashcroft reportedly said after reading that military law, international laws of war, and existing U.S. legal structures would be withheld from post-9/11 combatants. Lepore ends her study with President Obama’s drone killings of recent years, drawing bi-partisan connections between recently-formed “legal” (or extra-legal) U.S. precedents and the current state of military affairs. But for proper historical context, Lepore traverses backward in time from the twenty-first century, through the Enlightenment, to the Middle Ages, when justice was a metaphysical consideration and punishment was decided by God.
Trials, as in “and tribulations,” meant “ordeal” throughout medieval Europe, between 500 and 1200 A.D. Prior to the advent of the trial by jury, before legal systems, science, and forensics, malbehaviors were regulated through the courts of monarchs and churches. When there was neither witness nor proof, trials were decided by acts of God or, at least, flimsy, seemingly-portentous asymmetrical contests of will power, physics, and, ultimately, biology. “Trial by fire,” Lepore writes by way of example, “involved grasping an iron bar. A plea was offered to God: ‘If this man is innocent…he will take this firey iron in his hand and appear unharmed.’” You get the idea; these are the juridical roots of the witch trials, the righteousness of mob zealotry.
The Church, in 1215, outlawed trial by ordeal, substituting it with court-ordered torture, a form of truth-finding that assumes guilt or, at least, guilty knowledge. Lepore: “Because people who are tortured will confess to anything, many laws required that a confession extracted by torture include details that ‘no innocent person can know.’” When we think about Guantanamo Bay, the U.S.’s proven record of torture, and Americans’ historic rejections of such measures as presumed guilt, extra-legal and extra-prisoner status, and state-sanctioned torment, it’s good to have a sense of history. For a historical gaze reminds us that change over time is not “progressive,” that things do not necessarily get “better,” even as nations, societies, and justice systems get older. Americans, perhaps more than anyone, need this reminding, and although it’s not preferable that our elected officials and their cronies are the ones who remind us, as voting citizens, we deserve what we get (this, of course, does not mean that the poor souls in Guantanamo deserve what we give them). If our presidents and congress-folks don’t remind us thoroughly enough of the uneven path of history, though, we always have diversionary entertainments.
Lepore’s excavation of some of the gory details of human devilry has helped me enjoy recent episodes of Game of Thrones, that medieval-styled fantasy show set in a very real and solid world of political maneuvers and family obligations, yet one still situated at the edge of a world of magic and living spirits. In Westeros, there are fables of winter walkers and dragon fire, but most of the adults don’t believe in them anymore. Where there are fables, there are gods, and though characters discuss “old and new” gods, pray to them, and sometimes argue about them, it is unclear how important religion is to the story (if you haven’t read the books). The only plot element and non-casual reference to the gods (that I’ve noticed) has involved a “one true” god, the Lord of Light (maybe alternatively the Lord of Fire?). The one god’s priestess has certainly invoked some supernatural acts, giving birth to an adult shadow assassin actually, but it’s unclear to me that this indicates, necessarily, godly intervention (in contrast to, say, plain old magic and witch-trickery). Clearly, Lady Milesandre has superpowers; but are they divine? So far in the show, it’s hard to say whether these gods, or the one god, are active gods in the world of women and men. Milesandre, for instance, seems to have been wrong about her guy winning the most recent Big Battle, so it’s hard to say exactly what kind of priestess she is, just as it’s hard to know where she gets her shadow warriors. But the show’s recent foray into forest-bandit justice reveals new insight into the Lord of Light, and medieval trials besides.
(I’m pretty sure what follows contains no spoiling information for potentially future-viewers.)
Last week after being accused of murder, the Hound, already a prisoner, faced trial. Because it was the Hound’s accuser, Arya’s, word against his own, the only way to find, or in fact to construct, a sense of justice was through a physical trial: a sword fight. Beric, leader of a vagabond brigade of ex-soldiers, took the challenge, seemingly because he has his own beef with the Hound, would like to see him dead, and thinks that he himself can take the overwhelmingly huge and badass Hound in a fight. Flash forward to this week, and we get the fight. But we have a much more explicit context for it. The show opens with a group prayer: outlaw-looking Robin Hoods all praying to the fire, to the Lord of Light. God will decide innocence and guilt. Through physical combat , through a trial that tests the body and mind, the community will find spiritual resolution, justice, and truth. In this presentation, Beric is not a self-determined fighter, but a vessel of god; his violent victory or defeat, god’s primordial judgment.
Without spoiling anything, because god works in mysterious ways, I think I can say that Arya is left unsatisfied. She did not get her justice, and more than most characters we’ve seen, she bemoans the unfairness of Beric’s juridical system. Arya, both a young child and the daughter of the noble-good-guy protagonist, is one of the few characters who believes in ideals and yearns for concrete and substantial values like justice. It’s a cornerstone of the Game of Thrones narrative that most of the characters are both far from noble and pushing simple boundaries of right and wrong. Honor, oaths, and family obligations come up a lot; few people walk their talk. But Arya witnesses potential justice and rejects what she sees as a failure of the justice system. Which brings us back to President George Bush in 2001.
In the first days of 2002, Guantanamo Bay housed 779 accused, many of whom would be subject to countless tortures and trials by ordeal (with no apparent judgment). Some of these folks might be bad men, some misguided, and some got picked because an unfriendly (bad? misguided?) neighbor saw one of the millions of fliers American troops dropped in Afghanistan promising money in exchange for information. (Most detainees claim to have been sold for between $5,000 and $25,000.) Lepore writes:
“They weren’t called criminals, because criminals have to be charged with a crime. They weren’t called prisoners, because prisoners of war have rights. They were ‘unlawful combatants,’ who were being ‘detained,” in what the President called ‘a new kind of war.’”
We’re still fighting that war. And our current president continues a decade plus of bending national and internationals laws beyond recognition and inventing legal and juridical prattle in the name of terrorizing power. This is the name of the Justice Department’s latest confidential—the one establishing that President Obama can murder American citizens without charges or evidence: “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al Qa’ida or an Associated Force.” This use of self-serving doublespeak, from the administration of what seems to qualify these days as a “liberal” president, resonates as the circular logic of post-Enlightenment word games in the service of self, nation, and power. Not so much enlightened, I submit, as deeply rooted and dimly obscured.
I watch Game of Throne to see the morality plays develop and spin out; the inconsistent ethics and blurring morality make for compelling drama. Stories of human failings and deep motivations remind us of our selves and our past, just as they always have. Characters like Arya—morally-correct and empathetic protagonists—are often viewers’ entryway into fictional, worrisome, salacious worlds. They offer audiences a mark of identification. Kings and Queens are variously ‘good’ or ‘bad’ (and maybe ‘good and bad’), but the story is usually better when they’re bad; the excitement comes from a peculiarly narrative approach to change over time—What’s gonna happen next?—as plots progress. But the same is not true for enlightened leaders in our world (y’know, the real and solid world where dragons only used to exist and, having been gone for a long, long time, nobody remembers). Unfortunately our world and our history are not like fantasy fiction. Societies, people, and institutions do not get better over time. They just become more self-conscious and villainous in their excuses.
