Ever Again: Legal Remembrance of Administrative Massacre
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EVER AGAIN: LEGAL REMEMBRANCE OF ADMINISTRATIVE MASSACRE MARK J. OSIELt TABLE OF CONTENTS INTRODUCTION .................................. 464 I. How PROSECUTION ASSISTS COLLECTIVE MEMORY AND How MEMORY FURTHERS SOCIAL SOLIDARITY ...... 470 A. Crime, Consensus, and Solidarity ................. 478 B. Solidarity Through Civil Dissensus ................ 489 II. LEGAL SHAPING OF COLLECTIVE MEMORY: SIX OBSTACLES ............................... 505 A. Defendants' Rights, NationalNarrative, and Liberal Memory ........................... 505 B. Losing Perspective, DistortingHistory .............. 520 C. LegalJudgment As Precedent and Analogy ........... 567 D. Breaking with the Past, Through Guilt and Repentance .............................. 588 E. ConstructingMemory with Legal Blueprints? ......... 624 F. Making Public Memory, Publicly ................. 648 III. COLLECTIVE MEMORY IN THE POSTWAR GERMAN ARMY: A CASE STUDY .......................... 691 CONCLUSION .................................... 699 t Professor of Law, University of Iowa. J.D., Ph.D. 1987, Harvard University. For their helpful comments, I thank Randall Bezanson, Stephen Griffin, Tulio Halperin Donghi,Jeffrey Herf, Kenneth Kress, Robert Post, Michael Schudson, Aviam Soifer, Ruth Spigal, Eliza Willis, and the Iowa Legal History Workshop, especially its organizer, Linda Kerber. For information about the Buenos Aires trials of military officers, I express my thanks to the several Argentine judges, prosecutors, military officers, defense counsel, journalists, and social scientists who shared their observations of these proceedings. The Iowa Law Foundation, Harvard's Program in Ethics and the Professions, and Columbia Law School's Human Rights Program provided generous support for the present research. (463) 464 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 144:463 I have spent many nights sleeping in the plazas of Buenos Aires with a bottle of wine, trying to forget... I am afraid to be alone with my thoughts. Argentine Captain Adolfo Scilingo, confessing to having thrown thirty people from a navy helicopter during the "dirty war."' Publicly coming forward to give such testimony is a way of returning to a horriblepast that we are trying to forget. Argentine President Carlos Sai6l Menem, responding to Scilingo's public confession.' [The struggle of man againstpower is the struggle of memory againstforgetting. Milan Kundera INTRODUCTION All societies have founding myths, explaining where we come from, defining what we stand for.4 These are often commemorated in the form of "monumental didactics," public recountings of the founders' heroic deeds as a national epic. Some societies also have myths of refounding, marking a period of decisive break from their own pasts, celebrating the courage and imagination of those who effected this rupture. Myths of founding and refounding often center on legal proceedings or the drafting of legal documents: the Magna Carta (for Britain),5 the trial and execution of King Louis ' Quoted in Calvin Sims, Argentine Tells of Dumping 'Dirty War' Captives into Sea, N.Y. TIMES, Mar. 13, 1995, at Al, A8. Sergeant Victor Armando Ibifiez made similar confessions. See Confessions of a Dirty Warrior, HARPER'S MAG., July 1995, at 15 (translating and reprinting an interview published in the April 24, 1995 issue of La Prensa). 2 Quoted in Calvin Sims, NationalNightmare Returns to Argentine Consciousness,N.Y. TIMES, Apr. 5, 1995, at Al, A6; see also Argentina: The Unspoken Past,N.Y. TIMES, Mar. 21, 1995, at A20 (noting that "authorities have actively discouraged public discussion of what went on"). 3 MILAN KUNDERA, THE BOOK OF LAUGHTER AND FORGETTING 3 (Michael H. Heim trans., 1980). 4 See MIRCEA ELIADE, MYTH AND REALrFY 4-5, 30-38 (Ruth N. Anshen ed., Willard R. Trask trans., 1963) (examining the purpose of "foundation myths" in society). ' On the many and conflicting invocations of the Magna Carta in subsequent ADMINISTRATIVE MASSACRE XVI (for France),6 and the Declaration of Independence7 and the Constitutional Convention (for the United States).' "Our country's birthday," reminds Mary Ann Glendon, "commemorates the formal signing of a legal document-a bill of grievances in which rebellious but fussily legalistic colonists recited their complaints, [and] claimed that they had been denied 'the rights of Englishmen.'"9 Such legally induced transformations of collective identity are not confined to the distant past. In Australia, the white population has recently come to refocus its national identity around a "discov- ery" or rehabilitation of the country's aboriginal population. 10 At the same time, aborigines themselves have increasingly come to refocus their relations with the white majority population around several highly successful legal interactions with it: a well-publicized lawsuit vindicating indigenous claims to traditional lands and a law consolidating these claims.1 Both legal events have, in turn, come 12 to be celebrated in indigenous ceremony and popular song. English political history, by both the left and the right, see ANNE PALLISTER, MAGNA CARTA: THE HERITAGE OF LIBERTY 32-38, 51-62, 73, 89 (1971). 6 See generally SUSAN DUNN, THE DEATHS OF LOUIS XVI: REGICIDE AND THE FRENCH POLITICAL IMAGINATION (1994) (examining the shifting place of this event in French memory). 7 On how American memory of the Declaration of Independence has changed several times, in light of shifting political contexts, see MICHAEL KAMMEN, A SEASON OF YOUTH: THE AMERICAN REVOLUTION AND THE HISTORICAL IMAGINATION 55-65 (1978). 8 On the place of the U.S. Constitution in the collective memory and popular culture of Americans, see MICHAEL KAMMEN, A MACHINE THAT WOULD Go OF ITSELF: THE CONSTITUTION IN AMERICAN CULTURE (1986). 9 MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY 259 (1994). The act of founding often becomes the focal point for later disputes about its meaning and bearing, if any, on contemporary disputes that find their way into courtrooms. As Milner Ball observes, "[t]he courts are the paradigmatic spaces where the dramatic narrative of our beginning is recurred to and augmented." MILNER S. BALL, THE PROMISE OF AMERICAN LAW: A THEOLOGICAL, HUMANISTIC VIEW OF LEGAL PROCESS 62 (1981). " See Paula Hamilton, The Knife Edge: Debates About Memory and History, in MEMORY AND HISTORY IN TWENTIETH-CENTURY AUSTRALIA 9, 13-14 (Kate Darian- Smith & Paula Hamilton eds., 1994). " See Mabo v. Queensland, 175 C.L.R. 1, 2 (Austl. 1992) (holding that "the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands"); Native Title Act, No. 110 (1993) (Austl.) (setting forth Parliament's objectives of providing for the recognition and protection of native title). 12 Two such songs, composed and performed by an interracial rock group, have become best-selling hits on the Australian pop music charts. The group's name is Yothu Yindi. The songs are entitled Mabu and Treaty. The first of these appears on 466 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 144: 463 In short, acts that assert and recognize legal rights have often become a focal point for the collective memory of whole nations. Secular rituals of commemoration consolidate such shared memo- ries with increasing deliberateness and sophistication. 3 These events are both "real" and "staged," to the point of problematizing 14 the distinction between true and false representations of reality. In this way, law-related activities can and do contribute to the kind of social solidarity that is enhanced by shared historical memory. In the last half century, criminal law has increasingly been used in several societies with a view to teaching a particular interpretation of the country's history, one expected to have a salubrious impact on its solidarity. Many have thought, in particular, that the best way to pre- vent recurrence of genocide, and other forms of state-sponsored mass brutality, is to cultivate a shared and enduring memory of its horrors-and to employ the law self-consciously toward this end. To do this effectively has increasingly been recognized to require some measure of son et lumixre, smoke and mirrors, that is, some self-conscious dramaturgy by prosecutors and judges, I contend. For instance, western Allies in postwar war crimes trials deliberately strove "to dramatize the implacable contradiction between the methods of totalitarianism and the ways of civilized humanity through a worldwide demonstration of fair judicial procedure." 5 This Article examines six recurring problems that have arisen from efforts to employ criminal prosecution to influence a nation's collective memory of state-sponsored mass murder. 16 Some of the album FREEDOM (Hollywood Records 1993), the second on TRIBAL VOICE (Hollywood Records 1992). is See DANIEL DAYAN & ELIHU KATZ, MEDIA EVENTS: THE LIVE BROADCASTING OF HISTORY 211-13 (1992) (examining official efforts to influence collective memory through television broadcasts of major public events); see also Ana Maria Alonso, The Effects of Truth: Re-Presentationsof the Past and the Imagining of Community, 1 J. HIST. Soc. 33, 40 (1988) ("Social groups form images of themselves in relation to a set of founding events and re-enact this shared link to a collective past in public ceremony .... [Hence, s]ocial memory is integral to the creation of social meaning."). 14 See JEAN BAUDRILLARD, SIMULATIONS 5-6 (Paul Foss et al. trans., 1983). "sPeterJ. Fliess,