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Thursday, November 28, 2013

Profile In Courage

This story is confirmed in Elmer Bendiner's book, The Fall of Fortresses: A Personal Account of One of the Most Daring - and Deadly - Air Battles of the Second World War (Putnam, 1980: ISBN 0-399-12372-5), p. 30. [After the war, he became a journalist and writer.]

Elmer Bendiner was a navigator in a B-17 during WW II. He tells  this story of a World War II bombing run over Kassel , Germany , and the unexpected result of a direct hit on their  gas tanks.

"Our  B-17, the Tondelayo, was barraged by flak from Nazi antiaircraft guns. That was not unusual, but on this particular occasion our gas tanks were hit. Later, as I  reflected on the miracle of a 20 millimeter shell piercing the fuel tank without touching off an explosion, our pilot, Bohn Fawkes, told me it was not quite that simple.

"On the morning following the raid, Bohn had gone down to ask our crew chief for that shell as a souvenir of unbelievable luck. The crew chief told Bohn that not just one shell but 11 had been found in the gas tanks. 11 unexploded shells where only one was sufficient to blast us out of the sky. It was as if the sea had been parted for us. A near-miracle, I thought. Even after 35 years, so awesome an event leaves me shaken, especially after I heard the rest of the story from Bohn.

"He was told that the shells had been sent to the armorers to be defused. The armorers told him that Intelligence had picked them up. They could not say why at the time, but Bohn eventually sought out the answer.

"Apparently when the armorers opened each of those shells, they found no explosive charge. They were as clean as a whistle and just as harmless. Empty? Not all of them! One contained a
 carefully rolled piece of paper. On it was a scrawl in Czech. The Intelligence people scoured our base for a man who could read Czech. Eventually they found one to decipher the note. It set us marveling. Translated, the note read:  "This is all we can do for you now........."

"Using Jewish slave labor is never a good idea." 

Monday, November 04, 2013

The Sisyphus Defense

People v. Sisyphus

In Greek mythology, Sisyphus was the king of Corinth who offended the gods and was punished by being forced for eternity to push an enormous boulder up a hill. When he approached the apex and the successful end of his task, the boulder would roll down the hill to the bottom, requiring Sisyphus to begin again. And again. In an endless loop. 

The image has sparked the imagination of artists and philosophers throughout the ages, because it seems to speak some universal truth about the human condition. How many people can identify with the sense that their lives are wasted in “an eternity of useless efforts and unending frustration.”

While this phrase describes how we defense lawyers often feel about our careers, it is not all grim and depressing. Our forte is the ability to construct arguments for our clients no matter how daunting the task appears. If we apply that talent and skill to this problem, we should be able to retrieve some sort of positive lesson from the facts.

Fortunately, there does exist in literature a formidable argument that we can adopt. Albert Camus, the French writer known as for his novels “The Stranger” and “The Plague,” wrote an essay titled “The Myth of Sisyphus.” 

Camus, an impoverished tubercular pied-noir (the French pejorative term for a white Algerian), stopped working as a journalist when the Germans occupied France. He wrote for the Resistance and wrote his books which could only be published after the Liberation. With Jean Paul Sartre he became known for his philosophical writing after the war, popularized as “Existentialism,” which was misunderstood as defining a uniformly bleak outlook on life (not unlike the pop perversion of Einstein’s theories as “Everything is relative” or “Social Darwinism” defining the goal of life as “survival of the fittest” ). 

Camus argued that the human condition is basically “absurd” because we live in the certainty that we will all die. That this is so means absolutely nothing to the universe, rather it is part of the cold calculus of nature. Sensing this, some conclude that the logical response is suicide, because life is meaningless. Others turn to religion for succor, imagining an afterlife with rewards or punishment.

Camus espoused a third argument: embracing the absurdity of existence and living life fully in the face of it. Even if your life is like that of Sisyphus.

He argued that Sisyphus was not to be pitied, but was a heroic figure, to be envied. 

His famous dictum is:

“The struggle toward the heights is enough to fill a man’s heart. One must imagine Sisyphus happy.” 

All of this of course is difficult if not impossible for our profession. In Law, we are committed to the idea that disputes can be settled by evidence, proof. The word “reason” and its corollaries “reasonable” “rationality” as in reasonable cause, reasonable doubt . . . are achievable real goals. 

We are always fighting against arbitrary, illogical conclusions based on prejudice rather than provable facts. 

Camus as philosopher held that the world was inherently “unreasonable,” and “unknowable.” The absurdity rose from the sentimental romantic striving for meaning and hope for a better life even though, no matter how hard we fight, our lives are finite. We all end the same way. 

“But for Camus, it was Sisyphus’s scorn of the gods, his hatred of death, and his passion for life in the face of a futile struggle that illustrated his essential point: man knows himself to be the master of his days.” 
Camus and the post war philosophers were certainly influenced by their experiences under Nazi domination. For that generation, it would be hard for anyone with eyes to maintain an optimistic outlook about the human condition. Who lived or died depended on luck, an arbitrary calculus that jettisoned reason for hate and a twisted philosophy of genocide and Gotterdammerung

Yet, Camus himself did not sit by and accept the fate of defeat. He actively fought — with words and action — against the evil of collaboration and tyranny. After the war, Camus at first felt the strong emotions of rage against the holocaust and urged “justice without mercy” for collaborators and Nazi war criminals. But after the frenzy of arbitrary trials resulted in executions of some 10,000 supposed collaborators, he changed his mind and became an opponent of capital punishment, writing a famous essay, “Reflections on the Guillotine” (1957) which led a movement which eventually was adopted by France. 

Saturday, November 02, 2013

"New Age Antiques"

My son was still in high school when he went with me to Monterrey in February, 1998, to the annual Death Penalty Seminar. When he returned to school, he wrote this column for his school newspaper: the Harvard-Westlake Chronicle: