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What We Don't and Do Know

The Case of Hasan Akbar

by STAN GOFF

The determinations of a court martial, in much the same way as a civilian trial, conform to reality selectively where these determinations match the facts at all. That is certainly the case for Hasan Akbar, who was sentenced to death last week for fragging his fellow soldiers in Kuwait. The only person who knows what happened on March 22, two and a half days after the ground offensive to invade and militarily occupy sovereign Iraq, may be Hasan Akbar himself, and even that may be a risky assumption.

All trials are inherently and deeply political events. That is why this trial cannot be ignored.

A trial is a state ritual, bedecked in the allegorical appurtenances of robes, gavels, uniforms, and the elevated bench of the high priest. It is a carefully scripted public spectacle, even when it is not ‘open to the general public,’ using the mystical mumbo-jumbo of ‘objectivity’ as it’s point of ultimate reference. Trials are codified rituals, no less primitive and dogmatic than pretending we are drinking blood and eating flesh during communion, than the boiled egg at a Pesach seder, or the daylight fast during Ramadan. A trial is the religious ritual of state power, and the purpose of a trial as a ritual of state power is to render invisible all those relations the state exists to protect. Trials are run almost exclusively by an order of modern shamans called attorneys, people who have been schooled not at determining the whole truth of anything, but instead to apply the various sub-rituals of the law on behalf of one or more of the trial participants.

Please don’t assume that I dislike religion or lawyers. Some of my best friends, as they say, are religious people and lawyers. The religion I want to deconstruct here is Objectivity. And I want to talk not about lawyers, but about law.

A military trial, a court martial, is a ritual contrived to conceal not just the relations of power that exist prior to liberal law — as civil trials do — but to camouflage the realities that exist prior to the formal codes of military behavior.

A trial is the exercise of the law. The so-called objectivity of the law, which pretends it has no point of view, renders the law a mirror of the status-quo. Every assumption that holds sway, with or without the formal recognition of the law, enters the courtroom, then, as a fact of nature — a universality, something above and immune from the actual living bodies and all their turbulent histories in the courtroom. This is why every trial that purports to be objective is a lie. The separation of the human subject from all we would call objects — be that a rain forest, a woman, or a slave — is a lie. This reflection of the status quo that calls itself objectivity, and pretends it has no point of view, reflects power and surrounds that power in a force field of invisibility.

In the trial of a woman for rape, for example, in the determination of something called ‘consent,’ no attorney is allowed to raise the issue of generally unequal power between men and women in society, even if plain sense tells us that social power conditions the question of consent. This is ‘inadmissible.’ This unequal power relation that existed prior to the law is not merely ignored by the court, it is actively excluded from any deliberation.

Systems of social power, like patriarchy, like capital, like imperialism, are not discounted as irrelevant. This would leave them open to question, vulnerable to the ‘objective’ evidence of relevance. No, these systems that exist prior to law are not discounted; they are counted. They are counted as natural, as the very immutable laws of nature, impenetrable to mere juridical intervention.

That’s the first thing.

It is only a matter of time after I write this, that someone will say I am defending the actions of Hasan Akbar. Those who defend and apologize for the status quo have demonstrated again and again that they are utterly unscrupulous. There are things I am writing here that will be taken out of context, and that can be combined with the existing assumptions with which we have all been indoctrinated, which will easily lend support to the impression that I am ‘defending’ Hasan Akbar. So be it. What is likely to be left out is what I will say right now, and what I said earlier… I do not know what happened with Hasan Akbar on May 22, 2003, so it is illogical to assume I am defending his actions. I cannot defend what I do not know. I have neither the capacity nor the inclination.

What I want to do is denaturalize; I want to point out some of the terrible lies behind all the assumptions that shroud the story of Hasan Akbar, assumptions that have the impermeability of a law of nature, or an article of religious faith.

What they say, ‘they’ being the story-product of the average socially necessary labor time expended by so-called journalists and so-called official sources… what ‘they’ say is that Akbar turned off the generator that provided lights in the tents at their Kuwaiti transit camp, then threw an incendiary grenade into one command tent, followed by two fragmentation grenades, one in each tent. ‘They’ say that he followed the grenade detonations by opening fire on the tents with his automatic rifle. Two officers, a captain and a major, were killed. Fourteen other members of the unit were wounded. I’m not inclined to dispute any of this, even though the rhetorical ‘we’ has a long history of fabricating evidence against both African Americans and Muslims; and Akbar was both. I’m not overwhelmed with skepticism in this case, even though I know how much latitude exists in the military to cobble together ‘evidence,’ and even though I know how much power the military has to conceal.

Assuming… and that’s what I’m doing for the sake of argument… assuming that Hasan Akbar did indeed kill Army Captain Christopher Seifer and Air Force Major Gregory Stone, on March 22, 2003, everything I have to say about trials and power still stands.

I am not writing to disrespect either of the two men killed (or the wounded). There are surviving family members and friends who were probably devastated by their deaths. In fact, the only thing I will argue in this regard is that we should value these men’s lives, even if we hate and oppose this war, which I do. My own son is a solider, again in Iraq. I think we need to acknowledge that their lives should be valued, and that those who grieved for them deserve empathy, regardless of the fact that this is a hideous war that should be ended immediately.

I’ll leave the condemnations of soldiers to the moralists. The only soldier that might have know what he was doing there that night — really known — may well have been Hasan Akbar.

I am simply going to argue that there are others who deserve the same value and empathy, and that there is a disparity between what will happen to Hasan Akbar and others who have committed even more heinous crimes, and that disparity exposes the very systems of power that a trial is designed to conceal.

In the trial ritual, two key things must be established to successfully prosecute a defendant for first degree murder, the charge for which Akbar just received a sentence of death. First, the evidence presented must establish that the defendant actually did what they say he did. Second, they must establish that he intended to do it before he actually carried out the act, that he premeditated the homicides. In the same ritual, the defense attorney must use any means at his or her disposal to create doubt about either of the foregoing propositions. Neither legal advocate has as his or her goal to explain what happened in all its complexity. There are two very narrow and competing agendas — conviction and acquittal — each based on very narrow rules that exclude any discussion of pre-existing systems of power.

The defendant is reduced to a ‘rational actor.’ This is a liberal fiction that underwrites all our laws; it is based on a model of law that sees everything as a business contract. Every decision is pristine; every decision is final. There are only two ways out for the defendant. Shed serious doubt on his authorship of the act, or shed serious doubt on the actor’s ability to behave rationally (the insanity plea). Akbar’s lawyer attempted to do the latter. This is tougher than the former partly because the law also severely circumscribes its definition of insanity. Plenty of people who are legally sane are anything but sane by any other normative standard.

Here is where I will rely on inference: inference from my own experience in the military and my observations of military activity since I retired a decade ago.

Troops are generally young, and they are generally as ignorant as their young counterparts who are not in the military. That’s why I don’t blame soldiers for wars. Non-commissioned officers (NCO’s… sergeants) are often not much older, and frequently just as ignorant, even though they have a bit more experience in the military and practical life. NCO’s have that patina of authority to which young soldiers are attracted by either reverence or fear, or both.

NCO’s often brief their troops on every upcoming situation, and these are often unsupervised and un-vetted briefings, jammed full of the NCO’s own prejudices and misconceptions. Many of the expectations that soldiers had about what their experience would be like in Iraq in March 2003 was based on the scuttlebutt they’d picked up from their own NCO’s. I observed one of these briefings that was filmed by Bronwyn Adcock, a documentary film maker from Australia. In it, there was a sergeant telling his rapt audience of 20-year-olds that Muslims hated Americans. He called this a briefing on ‘Iraqi history and culture.’ And this was a briefing in which the sergeant was keenly aware that he was being recorded, so much of what he might have said was not included in his ‘briefing.’

(Before I dis NCO’s, since I was one, let me point out that there many are bright, and there are plenty of commissioned officers who are as dumb as a box of raisins and likely to put out briefings that are just as worthy of ridicule.)

Imagine, now, that you are a solider recently converted to Islam — with the passion of any recent religious convert — who either directly, through a briefing like this, or indirectly, through barracks chatter, hears these kinds of statements. Does this inspire you with confidence in the unit you are about to accompany to war? How many times had Hasan Akbar heard his religion thus maligned and misrepresented by fellow soldiers, by officers and NCO’s, by the press, on the internet, watching call-in programs on C-Span? Akbar’s lawyers attempted to make the case that Akbar feared his fellow soldiers. I don’t know if he did or not, but it’s not a stretch.

Troops were pumped up for Iraq, as they testified in the superficial investigations of Abu Ghriab, by being told they were about to exact their revenge for September 11th. What is the mood of a unit full of 20-year-olds who couldn’t find Iraq on a map a year earlier, and have not yet differentiated between Iraqis and the 9-11 attackers, and who have been raised on a steady diet of revenge-fantasy entertainment featuring brown people, especially Arabs, as a threatening, irrational, and undifferentiated mass?

I spoke with a young solider about Abu Ghraib, who said, "I don’t know why they’re trippin’ about that. They would have done a thousand times worse to us." This was a Black soldier, who hadn’t made the connection between anti-Arab racism and the racism he encountered in his own life in the United States. When I pointed out, in the blandest argument I could make, that the majority of those who were imprisoned in Abu Ghraib had been rounded up randomly, I could see the light come on. Oh yeah. Well, that’s not right.

The point is, this possibility had simply never occurred to him before. We are a culture inoculated almost from birth against every critical thought. He was repeating the circulating and conventional wisdom of his unit, probably first spoken aloud by an NCO or an officer. This is the culture, and for a Muslim soldier this surely matters. I am not trying to defend Akbar. I don’t know what happened, so I wouldn’t know what I was defending. I don’t know his motivations. But I feel fairly safe in assuming there was an atmosphere of discomfort and even hostility in which he heard these kinds of things all the time.

Akbar’s father reports that his son was the sole Black and sole Muslim in his company. He further alleges that Akbar was subjected to constant racial and religious harassment, including innuendo that Akbar would be ‘mistakenly’ shot as one of them.’ because he ‘looks like them and prays like them.’ Reports that members of Akbar’s unit sported racist tattoos and indeed did subject him to racial and religious hectoring were given a non-denial-denial by 101st Division spokesman Lieutenant Colonel Ed Loomis, who responded that the Division did not ‘tolerate extremist behavior.’ This is a fairly typical military disclaimer that means this wasn’t the subject of the investigation, without saying that the harassment of Akbar was not investigated. Or, more seriously, that the investigation revealed facts that might embarrass the military, which is institutional anathema.

The most troubling thing about Akbar’s case is that, after the initial flurry of stories were quickly swallowed up by the serial dramas spun out by the Centcom liars in the initial days of the invasion, there was a virtual news blackout of the case. The military became extremely tight-lipped, and the press seemed to have forgotten it happened. Now, after all that circumspection, just as Akbar is being sentenced (and subject to be held incommunicado), there are lurid revelations from his ‘diary’ that purport to show that he had planned the murder of these officers, or at least other troops, all along. After the details of the trial are buried behind the military cloak for two years, then the curtains are pulled back on this spectacle of the verdict and one damning piece of evidence.

It’s hard for me to forget that this is the government that has illegally imprisoned thousands of people, including holding one U.S. citizen (Jose Padilla) without charges or access to a lawyer, and that persecuted Wen Ho Lee with the enthusiastic cooperation of the ‘objective’ press. This is the government that still holds Leonard Peltier and Mumia Abu Jamal (though Mumia is held on Pennsylvania charges). And this is the military that denied exit to military-aged males in Fallujah before they turned it into a Warsaw free-fire zone. So I hope I’ll be forgiven if I say, even without claiming the innocence or guilt of Hasan Akbar — which I simply do not know about… forgive me if I say there is something here that doesn’t pass a smell test.

But then, very little has passed that test lately, has it? Now, we have the trial of Ilario Pantano, former Wall Streeter turned Marine looey, who apparently shot two unarmed Iraqis then decorated them with the equivalent of the old Vietnam death cards. Republican Representative Walter Jones, from my home state of North Carolina (as much a fascist nitwit as that other North Carolinian, Jesse Helms), has made Pantano his personal cause celebre, saying he’d have Pantano for his son.

This is where this question arises concerning the value of life. I do not have to devalue the lives of Christopher Seifer and Gregory Stone to suggest that we might equally value the lives of Hamaady Kareem and Tahah Ahmead Hanjil, who Pantano shot dozens of times then covered with a sign bearing the unit motto, ‘No better friend, no worse enemy.’ Moreover, an MSNBC poll in response to Pantano’s trial asked the question, "Should soldiers ever be charged with murder in a war zone?" Not should Pantano be charged, but should any soldier ever be charged. Seventy percent of respondents said no.

If the exact same question had been asked in association with a report on Akbar’s trial, does any reader care to hazard a guess what the results might have been? The jurors in any case, including Akbar’s and Pantano’s, are likely to share the same set of assumptions that create the obvious disparity we would see if we held these two identical polls in conjunction with separate trials. The law says that murder is ‘objectively’ murder, no matter who the victim is. There’s your objectivity!

It’s the same objectivity that translates into 13 percent of U.S. drug users being Black, 38 percent of drug arrestees being Black, 59 percent of convictions being Black, and 74 percent of all drug offenders sentenced to prison being Black. Black folk are the victims of more homicides per capita than white folk, but if you kill a white person you are almost four times as likely to be given the death penalty than if you kill a Black person. And we don’t have to limit our examples to racial-national contradictions. We can talk about the dismally low percentage of successful rape prosecutions and concomitantly at the extremely high proof-burden bar placed before rape plaintiffs. We can look at the difference of court outcomes based on the price of one’s legal representation. Class, race/nation, and gender are systems of social power that exist prior to law: systems that the law intentionally conceals behind the veil of ‘objectivity.’ And trials… well, trials give us all the show.

Hasan Akbar is quoted as saying, "You guys are coming into our countries, and you’re going to rape our women and kill our children." We may assume he meant Muslim countries. As the record now shows, these things did actually happen. Children were killed by occupation troops, and women were raped. (Troops also raped fellow female soldiers and got away with it.) It is claimed that Akbar opposed the war, and further claimed that he had written in the infamous diary that he had been ‘punked’ and ‘humiliated’ by his fellow soldiers, rather supporting his father’s claims of harassment prior to deployment. He is reported to have written that he would soon be faced with a ‘choice’ about whom to kill. Given the circumstances, this isn’t all that surprising, if true.

Now that we’ve had the last and only act of the trial as state religious ritual, and the trial as public spectacle, we will be treated to the spectacle of Akbar’s appeals process, confirming us in the ultimate justice of this objective system, and the public revenge spectacle in which public voices will decry the act while carefully avoiding any references to Akbar’s color or religion, while the multitudes of private voices will reproduce the discourse of racism and xenophobia (now available in the blogosphere, and from designated trolls like Daniel Pipes) that ensures the smooth reproduction of the status quo. Then we will have our revenge, and Hasan Akbar will be executed to show our collective resolve.

Meanwhile, those who ordered the bombing of Baghdad only 48 hours before Akbar pulled the pin on the first grenade will enjoy the adulation and support of many and the helpless fury of many others.

STAN GOFF is the author of "Hideous Dream: A Soldier’s Memoir of the US Invasion of Haiti" (Soft Skull Press, 2000), "Full Spectrum Disorder" (Soft Skull Press, 2003) and "Sex & War" which will be released approximately December, 2005. He is retired from the United States Army. His blog is at www.stangoff.com.

Goff can be reached at: sherrynstan@igc.org