Will Tillikum, the “Killer Whale,” Get Standing and His Day in Court?

Remember Tillikum? Back in 2010 I likened this proud mammal, at 6 tons and 22 feet long the largest orca whale in captivity, to Spartacus. Tillikum was kidnapped by whale-slavers  off Iceland at the age of two in 1983. Deliberately starved as part of his “training” in a Sealand tank in Victoria, Canada, Tillikum has spent the past nineteen years in Seaworld, Orlando Florida. The whale has been involved in three lethal onslaughts on his captors, the most recent being an attack on Dawn Brancheau, a trainer he dragged into his tank and drowned in February of 2010.

Why was Tillikum spared? Big whale, big money. There’s a lot riding on the slave orcas toiling away, giving as many as eight performance per a day, 365 days a year, as the star attractions in each of the Shamu stadiums. Tillikum’s asset value is enhanced by his duties as a sperm donor. He’s a breeding “stud” often kept in solitary, away from the other orcas, and has fathered 13 orcas.

The Occupy Wall Street movement should raise  placards   in support of Tillikum and his fellow orca slaves: SeaWorld got its start in the mid-1960s, and after  various ups and downs, in the late 1980s the three SeaWorlds, in San Diego and Orlando,  passed into the hands of the vast brewing conglomerate Annheuser-Busch which pumped millions into upgrades, finally selling the theme parks for $2.7 billion in 2009 to the Blackstone Group, a merger and acquisitions group cofounded  by the odious Pete Peterson and Stephen Schwarzman, formerly of Lehman and Kuhn-Loeb. Blackstone, one of the world’s largest private equity investment firms is at the cross roads of crony capitalism,  where the political and financial elites engorge and devour. It has been one of the largest investors in leveraged buyout transactions over the last decade , with huge operations in  commercial real estate.

Last week People for the Ethical Treatment of Animals (PETA) filed a lawsuit against SeaWorld  for ‘enslaving’ five orcas. Tillikum is one of the plaintiffs.  PETA ‘s suit invokes the 13th Amendment, abolishing and prohibiting slavery, and demands the orcas’ release under the Amendment’s terms. “All five of these orcas were violently seized from the ocean and taken from their families as babies,” says Peta’s president Ingrid Newkirk, echoed by PETA’s lawyer, Jeff Kerr who told AP, “By any definition, these orcas are slaves – kidnapped from their homes, kept confined, denied everything that’s natural to them and forced to perform tricks for SeaWorld’s profit.” Kerr added that the 13th amendment does not refer to a specific species.
SeaWorld, denies the charges.

For those who think the references to slavery and use of the 13th Amendment  are excessive, remember the words of Frederick Douglass, the great abolitionist and former slave. Douglass often made direct comparisons between the treatment and use of other animals and that of himself. “When purchased, my old master probably thought as little of my advent, as he would have thought of the addition of a single pig to his stock! Like a wild young working animal, I am to be broken to the yoke of a bitter and life-long bondage. Indeed, I now saw, in my situation, several points of similarity with that of the oxen. They were property, so was I; they were to be broken, so was I; Covey was to break me, I was to break them; break and be broken – such is life.”

Will  the orcas get legal  standing?

Animals currently have no rights recognized in U.S. law, but many groups of lawyers are working to strengthen laws that protect animals and many individuals have successfully brought suit to protect the welfare of animals. Three years ago the DC Law Journal ran a very  useful  survey by Kathryn Alfisi. Alfisi  points out that  it was the Vick case “that allowed for just the right atmosphere to push for state and federal legislation that would strengthen dogfighting and animal cruelty laws.” The Atlanta Falcons quarterback pulled a 23-month sentence after pleading guilty to conspiracy for running a dogfighting ring on his property in Surry County, Virginia.

Some animal lawyers flee the  term “animal rights,” as too extreme,  while others question the whole concept of legal boundaries between animals and humans. Several  states bars and the District of Columbia Bar have animal law sections or committees. In 2005 the American Bar Association’s (ABA) Tort Trial and Insurance Practice Section created its Animal Law Committee. Over 100 animal law courses are being taught at law schools across the country,

The legal system, Alfisi reckons, is beginning  “to reflect the increasingly complex relationship between people and their pets in our society.”

The phrase “Increasingly complex” does the Middle Ages a grave injustice. Just read my CounterPunch co-editor Jeffrey St Clair’s marvelous introduction to Jason Hribal’sFear of the Animal Planet: The Hidden Story of Animal Resistance, published last year by CounterPunch Books.

As St Clair  writes, “In medieval Europe (and even colonial America) thousands of animals were summoned to court and put on trial for a variety of offenses, ranging from trespassing, thievery and vandalism to rape, assault and murder. The defendants included cats, dogs, cows, sheep, goats, slugs, swallows, oxen, horses, mules, donkeys, pigs, wolves, bears, bees, weevils, and termites. These tribunals were not show trials or strange festivals like Fools Day. The tribunals were taken seriously by both the courts and the community.”

Humans and animals often ended up in the same courtroom as co-conspirators, especially in cases of bestiality. The animal were given their own lawyers at public expense. “Sometimes, particularly in cases involving pigs,” St Clair writes, “ the animal defendants were dressed in human clothes during court proceedings and at executions.”

“In the province of Savoy, France in 1575,  the weevils of Saint Julien, a tiny hamlet in the Rhone Alps, were indicted for the crime of destroying the famous vineyards on the flanks of Mount Cenis. A lawyer, Pierre Rembaud, was appointed as defense counsel for the accused. Rembaud wasted no time in filing a motion for summary judgment, arguing that the weevils had every right to consume the grape leaves. Indeed, Rembaud asserted, the weevils enjoyed a prior claim to the vegetation on Mount Cenis, since, as detailed in the Book of Genesis, the Supreme Deity had created animals before he fashioned humans and God had promised animals all of the grasses, leaves and green herbs for their sustenance. Rembaud’s argument stumped the court.

“As the judges deliberated, the villagers of Saint Julien seemed swayed by the lawyer’s legal reasoning. Perhaps the bugs had legitimate grievances. The townsfolk scrambled to set aside a patch of open land away from the vineyards as a foraging ground for the weevils. The land was surveyed. Deeds were drawn up and the property was shown to counselor Rembaud for his inspection and approval. They called the weevil reserve La Grand Feisse. Rembaud walked the site, investigating the plant communities with the eyes of a seasoned botanist. Finally, he shook his head. No deal. The land was rocky and had obviously been overgrazed for decades. La Grand Feisse was wholly unsuitable for the discriminating palates of his clients.

“The Perry Mason of animal defense lawyers was an acclaimed French jurist named Bartholomew Chassene, who later became a chief justice in the French provincial courts and a preeminent legal theorist. He argued that local animals, both wild and domesticated, should be considered lay members of the parish community. In other words, the rights of animals were similar in kind to the rights of the people at large.

“In 1642 a teenage boy named Thomas Graunger stood accused of committing, in the unforgettable phrase of Cotton Mather, “infandous Buggeries” with farm animals in Plymouth, Massachusetts. Young master Graunger was hauled before an austere tribunal of Puritans headed by Gov. William Bradford. There he stood trial beside his co-defendants, a mare, a cow, two goats, four sheep, two calves and a turkey. All were found guilty. They were publicly tortured and executed. Their bodies were burned on a pyre, their ashes buried in a mass grave. Graunger was the first juvenile to be executed in colonial America…

“In 1750, a French farmer named Jacques Ferron was espied sodomizing a female donkey in a field. Ferron was convicted and sentenced to be burned at the stake. But the donkey’s lawyers argued that their client was innocent. The donkey, the defense pleaded, was a victim of rape and not a willing participant in carnal congress with Ferron. Character witnesses were called to testify on the donkey’s behalf. The donkey was acquitted and duly released back to its pasture.”

The people of the Middle Ages, dismissed as primitives in many modernist quarters, were actually open to a truly radical idea: animal consciousness.

The animal trials peaked in the late-sixteenth and early-seventeenth centuries, then faded away, done in by the Enlightenment and by Rene Descartes who argued  that animals were mere physical automatons. They were biological machines whose actions were driven solely by bio-physical instincts. Animals lacked the power of cognition, the ability to think and reason. At Port-Royal the Cartesians cut up living creatures with fervor, and in the words of one of Descartes’ biographers, “kicked about their dogs and dissected their cats without mercy, laughing at any compassion for them and calling their screams the noise of breaking machinery.” Across the Channel Francis Bacon declared in the “Novum Organum” that the proper aim of science was to restore the divinely ordained dominance of man over nature, “to extend more widely the limits of the power and greatness of man and so to endow him with “infinite commodities.” Bacon’s doctor, William Harvey, was a diligent vivisector of living animals.

Thus in the dawn of capitalism, the materialistic view of history, and the fearsome economic and technological pistons driving it, left no room for either the souls or consciousness of animals. They were no longer our fellow beings. They had been rendered philosophically and literally in resources for guiltless exploitation, turned into objects of commerce, labor, entertainment and food.

You like CounterPunch? You want it to continue? Please Don’t Skip over This.  

We are nearing the end of the second week of our annual fundraiser. We’re doing okay, thanks to opening salvos of donations from loyal CounterPunchers,  but as yet  not nearly well enough.  

Let me direct your attention to the extraordinarily generous offer made by a CounterPunch supporter. He has pledged to match every donation of $100 or more, to a combined total of $25,000. That means that any of you out there  thinking of donating $50 should know that if you donate a further $50, CounterPunch will receive an additional $100.  And if you plan to send us  $200 or $500 or more, he will give CounterPunch a matching $200 or $500 or more. 

CounterPunchers! Please don’t let this offer ebb away unfulfilled.  Double your clout right now. Step up to the plate, and reach for the phone, or your check book or hit the online donation button.

CounterPunch needs your help and without it in generous measure in the next three weeks we will not survive. We make this appeal  every year and please empty your mind of the sort of cynicism one develops after meeting for the fourth time in one day the same mendicant trying to raise “bus money” to get home.  We are mendicants year after year because we have no safety net.

Down the years we have accumulated many wonderful friends of CounterPunch, who rally each October and November. And we have also built up a formidable cadre of regular contributors whose contributions you can savor week after week on our site. Here are some of their testimonials:

MICHAEL HUDSON: “CounterPunch is my favorite site to find the best collection of left-wing criticism of the U.S. and global economic meltdown. That’s why I write for it.”

PAUL KRASSNER: “CounterPunch lives up to its name, responding to lies with facts, to distortion with reality, and to demagoguery with insights.”

WILLIAM BLUM: “I send my monthly Anti-Empire Report directly to thousands of people on my mailing list, but each month I usually get more responses from people who see it on CounterPunch than from any other source.  CounterPunch clearly has a great audience worldwide.”

KATHY KELLY: “CounterPunch editors and contributors won’t let us fall asleep at the wheel.  Sitting up straight and paying attention never felt so good as it has since I began learning from perspectives aired on CounterPunch.”

PAUL CRAIG ROBERTS: “CounterPunch is a first class site with a first class audience. Cockburn and St Clair assemble menus that offer to readers interesting perspectives and factual analyses that are essential to navigating our chaotic times.  I always read the CounterPunch page”

DIANA JOHNSTONE: “As someone on both the reading and writing ends of CounterPunch, I find it indispensable. The messages I receive in response to my articles are proof that CounterPunch has a vast audience of attentive readers.”

MIKE WHITNEY:  “I admit it; I’m addicted to CounterPunch. It’s as much a  part of my morning routine as coffee and toast. And–like many of you–I depend on CP to fill me in on the news behind the mainstream blabber. When I want to know  what’s happenng round the world, I always turn to CounterPunch for the answers. But that kind of coverage costs money, which is why–once a year–CP editors Cockburn and St. Clair have to beat the drum for donations to keep the presses rolling.

“If you are a frequent visitor (like I am), then, please, consider making a contribution. These are lean times for everyone. Still, we need to support the people who are willing to sacrifice their time, effort and talent to bring us the best political newsletter on the Internet. Please give generously.”

There are many others. So, I leave you to make the right decision. Dig as deep as you can in those pockets. The cause is good and the need is great.

Please, use our secure server make a tax-deductible donation to CounterPunch today or purchase a subscription and a gift sub for someone or one of our award winning books (or a crate of books!) as holiday presents. (We won’t call you to shake you down or sell your name to any lists.)

To contribute by phone you can call Becky or Deva toll free at: 1-800-840-3683.

Our Latest Newsletter

Let me give you  some opening paragraphs from one of the greatest descriptions of farm work ever committed to paper:

Farm work is hard not only in the sense of being skilled but also in the sense of requiring toil, exertion, and extended physical effort. When arriving in the early morning to begin work, Pablo Camacho would often say, “Ya llegamos al campo de la batalla” – “Now we arrive at the field of battle.” Although intending to provoke a smile, Camacho was not being ironic. Most people who have worked in the fields say that it is the hardest work they have ever done. It is hard to put up with the inevitable pain and physical exhaustion, to last until the end of the row, the end of the day, the week, the season. “To last” is not quite the right word. The right word is a Spanish one, aguantar: to endure, to bear, to put up with.

Pablo Camacho was proud of his ability to aguantar, even arrogant about it, often claiming that he never felt pain while he was working. That is a pose that a lot of farmworkers assume, even among themselves. At work, no one complains about pain. Camacho believed that the ability to put up with pain was part of the Mexican national character, especially evident in sports. Like many farmworkers, he was an avid boxing fan. He could name all the boxing champions in the lighter divisions from the 1930s to the 1970s, as well as recount the ways Mexican fighters had been denied championship opportunities. Mexicans were the best boxers in the world, he argued, especially in their ability to withstand punishment. They were also good marathon runners and long-distance bicycle racers, he said, sports in which endurance and patience are the essential virtues.

But Mexicans do not have an exclusive franchise on the ability to tolerate hard work. Endurance is a trait of slaves and the oppressed in general, and also characteristic of peasants and other agricultural people – whether free or unfree. Agriculture by its very nature requires patience. Farmworkers have to wait for nature to do her work. They must plant, water, and wait. Weed and wait. And, finally, after enduring the wait, they may harvest.

Physical labor has received bad reviews since people began to write. It is Adam’s curse in the Old Testament. Aristotle contended that “occupations are … the most servile in which there is greatest use of the body.” The dynamic relationship between the brain and the hand was ripped asunder by early philosophers, leaving two separate activities: valued intellectual labor (suitable for free men) and devalued manual labor (suitable for women and slaves). This philosophical predisposition against the work of the body had its greatest worldly triumph in the development of capitalism and the factory system. As Marx so passionately chronicled, English factories destroyed English handicrafts. What he called “modern industry” – machines built by other machines strung together in a continuous process of production, where laborers are “mere appendages” to the machinery – replaced the earlier system of production that “owed its existence to personal strength and personal skill, and depended on the muscular development, the keenness of sight, and the cunning of the hand.”

The cunning of the hand, what farmworkers call maña, remains the basis of California farm work as surely as it is the basis of a major league pitcher’s job, or a skilled craftsman’s. Many farmworker jobs are not only hard to do but hard to learn, often requiring years to master, and skills typically are passed from one generation to the next. Farmworkers use hand tools: knives, hoes, clippers, pruners. They do not tend machines or have to keep up with an assembly line.

I’m quoting from Frank Bardacke’s brilliant, long-awaited Trampling Out the Vintage: César Chávez and the Two Souls of the United Farm Workers which will be published by Verso later this month. I read an earlier draft of Frank’s book in manuscript and the chapter, “The Work Itself” bowled me over with its marvelous descriptions and observation. Frank himself worked  for three years in the fields around Salinas.

When Frank asked me for an endorsement of the book, I wrote “There’s so much marvelous stuff in Frank Bardacke’s book that’s simply not been done before. At the book’s core are the men and women who pick the crops in California’s fields and orchards. Bardacke gives those people, mostly seen only in distant fields, a huge presence, one crackling with political vitality: those surges the UFW had no idea were coming; those moments when a strike spread like wildfire across the fields. Here are the farm workers, their skill and endurance, the world  they built among themselves, the ways they shaped the history of the UFW. It is their story—refreshingly, sympathetically, and beautifully told—that makes this book stand apart and will make it stand forever.”

In our current newsletter we run most of the chapter “The Work Itself.” I hope you get the book. If you want a taste of its qualities, read our exclusive excerpt.

Also in this newsletter we continue our series on the Obama Record. Linn Washington Jr. contributes a terrific piece, “Black Backlash Against Obama.”


Alexander Cockburn can be reached at alexandercockburn@asis.com

Alexander Cockburn’s Guillotined!, A Colossal Wreck and An Orgy of Thieves: Neoliberalism and Its Discontents are available from CounterPunch.