While Everyone Was Watching Foley ...

The Judgment of History
Rev. Kendyl Gibbons
First Unitarian Society of Minneapolis
October 8, 2006

Dearly beloved, what is the matter with us?

I should have done this last week, I know; why didn’t I? I was stunned speechless; perhaps you were too. Perhaps we still are. It has long been my fear that if I were ever in imminent danger of rape, I would want to scream, but be too terrified to catch my breath to be able to do it. I feel like that now. How can I catch my breath to scream? Why aren’t we all screaming?

Do you understand what happened last Friday? The congress of the United States, your representatives and mine, passed a bill; they do that all the time. But this one was different. This one rips from beneath our feet the most elemental liberties that citizens of civilized western nations have trusted for the past eight centuries.

The modern institution of civil and human rights began in June of 1215 when King John of England was forced by a group of feudal lords to sign the Magna Carta in a meadow at Runnymede. Two of the most critical parts of the Magna Carta were articles 38 and 39, which established the foundation for what is now known as "habeas corpus" law (literally, "produce the body" from the Latin -- meaning, broadly, "let this person go free or else give him a trial -- you may not hold him forever without charging him with a crime"). The concept of habeas corpus in the Magna Carta led directly to the Fourth through Eighth Amendments of our own Constitution, and hundreds of other federal and state due process provisions.

Articles 38 and 39 of the Magna Carta state:

"38 In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

"39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

This was radical stuff at the time, and over the next four centuries average people increasingly wanted for themselves these same protections from the abuse of governmental power that the feudal lords had gotten at Runnymede. But for another 400 years, from 1215 to 1628, outside of the privileges enjoyed by the feudal lords, the average person could still be arrested and imprisoned at the whim of the king, with no recourse to the courts.

Then, in 1627, King Charles I overstepped, and the people snapped. Charles I threw into jail five knights in a tax disagreement, and the knights sued the King, asserting their habeas corpus right to be free or on bail unless convicted of a crime. King Charles I, in response, invoked his right to simply imprison anybody he wanted (other than the rich feudal lords), anytime he wanted, as he said, "per speciale Mandatum Domini Regis."

This is essentially the same argument that George W. Bush makes today for why he has the right to detain people without charges for as much as their entire lives solely on his own say-so: because he's in charge. And it's an argument now affirmed by our representatives in congress, who have chosen to dispense with America's founding principles. Why? Apparently, out of professional political expediency.

Pat Leahy, senior senator from Vermont, and an outspoken opponent of the bill passed last week, explained, "In my own caucus, people say, 'We can't oppose this, look what happened to Max Cleland.'" (A Vietnam veteran confined to a wheelchair because of war wounds, Cleland, a Georgia senator, was defeated by GOP attacks ads in 2002 because he had supported a Democratic filibuster delaying the establishment of the Department of Homeland Security). Leahy recounted that his Democratic colleagues also argue, "'We have to go along with it because we'll never be able to explain it back home.'" To which the senator responded, "Maybe one way to explain it is to say, 'I stood up for you and your rights.'"

Why aren’t we screaming?

In the days of ancient Israel, the prophet messengers of Yahweh arose at such moments as this, to denounce the misappropriation of god’s authority, and the miscarriage of god’s justice. They were not concerned with magical divinations of the future, but rather with the simple logic of what must inevitably follow when the rulers of nations betrayed the trust and well-being of their people. The prophet Isaiah once made such a denunciation and prediction against the kings of Assyria and Babylon:

Woe to those who enact unjust statutes and who write oppressive decrees,

Depriving the needy of judgment and robbing my people's poor of their rights,

Making widows their plunder, and orphans their prey!

What will you do on the day of punishment, when ruin comes from afar?

To whom will you flee for help?

When I Yahweh have brought to an end all my work on Mount Zion and in Jerusalem,

I will punish the utterance of the king of Assyria's proud heart,

and the boastfulness of his haughty eyes. For he says:

"By my own power I have done it, and by my wisdom, for I am shrewd.

I have moved the boundaries of peoples, their treasures I have pillaged,

and, like a giant, I have put down the enthroned.

My hand has seized like a nest the riches of nations;

As one takes eggs left alone, so I took in all the earth;

No one fluttered a wing, or opened a mouth, or chirped!"

And he has said in his heart: "I will scale the heavens;

I will ascend above the tops of the clouds; I will be like the Most High!"

Yet down to the nether world you go, to the recesses of the pit!

When they see you they will stare, pondering over you:

"Is this the man who made the earth tremble, and kingdoms quake?

Who made the world a desert, razed its cities, and gave his captives no release?

All the kings of the nations lie in glory, each in his own tomb;

But you are cast forth without burial, loathsome and corrupt,

For you have ruined your land, you have slain your people!

Let him not be named forever, that scion of an evil race!

I will rise up against them, says Yahweh of hosts,

and cut off from Babylon name and remnant, progeny and offspring.

Then his yoke shall be removed from my people, and his burden from their shoulder.

This is the plan proposed for the whole earth,

and this the hand outstretched over all nations.

In fact, they were sometimes wrong, those prophets of long ago. They were sometimes factually wrong about what would happen in the pages of history, and they were even sometimes morally wrong about what might constitute real holiness. But they were right about this: that what we are called upon to do when rulers abuse their powers is to cry aloud in the name of all that is holy, and to pronounce doom upon tyranny in every form. This morning I stand here in the footsteps of Micah, Amos, and Isaiah, to call out to you that our national covenant has been violated at its core, and to proclaim that retribution must and will come.

We have said it ourselves; fifty years ago, in a courtroom in Nuremberg, Justice Robert Jackson, American counsel for the prosecution of the German high command war criminals, said it on our behalf, when he described by what right the victorious Allied nations had created that unprecedented trial. In the opening moments of our national life, Alexander Hamilton -- arguably the most conservative of the Founders -- wrote this in The Federalist Papers:

"The establishment of the writ of habeas corpus ... is perhaps a greater security to liberty than any the Constitution contains. ...The practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. ...

To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."

There can be no escape by ignorance; George Bush knows exactly what he is doing; he is as brazen about it as any would-be tyrant ever was. Those representatives who have surrendered our freedom to him are educated men and women; they knew what they did. And we who sit here today, perplexed and alarmed -– we know what is at stake; we know the example that we owe the world, we know what history looks like when bullies gather power into their hands unchecked. And we know the judgment of humanity against the violence and arrogance of those who without shame start wars, torture their opponents, and shield one another behind the fiction of legal process. Within the lifetime of people in this room today, we were part of it, upholding honor and the laws of human decency. I say that we shall find ourselves arraigned before the same bar of moral judgment at which we once meted out humanity’s justice to the fallen despots and brutalizers of the Third Riech, no very long time from now. And I don’t care how deeply they bury themselves in the mud of national legislation perverted by a spineless congress; the court of world opinion will know how to proceed against our current national leaders, and ourselves. Following orders is not a sufficient defense; we knew it 50 years ago; others will know it for us hereafter.

In the fraught days of the American revolution, the patriot leader Samuel Adams said to his fellow citizens, "If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or your arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that you were our countrymen."

No doubt posterity will forget your name and mine, as it has forgotten those of the ordinary German citizens who awoke one morning to find their capitol in ashes and their constitutional rights vanished with the stroke of a pen. It will deal less mercifully with the authors of this outrage; soon or late, they will find themselves held accountable by the citizens of a world less addicted to privilege and passivity than we are. There is no Old Testament god bestowing any celestial prerogative on George Bush’s will to tyranny, once named the divine right of kings; by the same token, there is no supernatural author of justice to condemn and eventually punish his hubris. Yet I will stand here today in the mantle of prophecy, to announce that the testimony against him is given; to speak on behalf of human liberty a judgment which will surely come.

Half a century ago, Robert Jackson pointed out that in bringing those twenty-some broken old men who were the remnants of Nazi leadership to trial, the world was according to them the very structures of justice that their government had ruthlessly stripped away from its victims: "They took from the German people all those dignities and freedoms that we hold natural and inalienable rights in every human being. …the law includes, and if it is to serve a useful purpose it must condemn, aggression by any other nations, including those which sit here now in judgment. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law. This trial represents mankind's desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world's peace and to commit aggressions against the rights of their neighbors. The real complaining party at your bar is Civilization. In all countries it is still a struggling and imperfect thing…"

Struggling and imperfect it may be, yet civilization itself will rise again and again, in the face of all oppression and degradation, to summon human consciousness again and again to what we know we can be, to the world we know we can build, in liberty, justice, and peace. No legal fictions that this president can propose, or this congress can pass, will shield them from that ultimate accountability, which I hope with all my heart to see accomplished in my own lifetime, and which I summon from every source that might have power to effect it. And on that day, you and I may be glad for our oblivion, unless we shall stand in the world’s memory among those who did our utmost to stop the spread of this darkness.

Friends, I wish I knew the answer. I wish I thought that the upcoming elections had the potential to turn this around; maybe they do, but I’m not sanguine. Like the prophets of olden days, I have no quick fix; we must and will suffer the consequences of what we have allowed our leaders to do. I can only suggest, as they would have, that what will save us in the end is faithfulness to the values of the covenant that we and our ancestors have long professed; in our case, to the moral laws of human decency, and to what was once the constitution of this nation. There’s only one other thing that I know about the answer to this mess -– silence isn’t it.