Pardon the Kodachrome

"Not all may be as it appears. In order to find peace, we must first find justice."

 

When I think back on all the crap I've learned in high school
It's a wonder I can think at all
Though my lack of education hasn't hurt me much
I can read the writings on the walls

Kodachrome, they give us those nice bright colors
They give us the greens of summers
Makes you think all the world's a sunny day, oh yeah

— Paul Simon, Kodachrome, (1973)

In 1973, Paul Simon walked into Muscle Shoals Sound Studio with his guitar and the sheet music to Take Me to the Mardi Gras. He was looking for that uniquely Southern combination of R&B, soul and country music that had backed up Aretha Franklin, Wilson Pickett, Percy Sledge and the Staple Singers. Imagine his surprise to learn that the Alabama studio’s four musicians, Barry Beckett, Roger Hawkins, David Hood and Jimmy Johnson, a.k.a, “The Swampers,” were all white. Kodachrome indeed.

When the producer Phil Ramone called up Beckett and said Simon wanted to record with them, Beckett replied, "How much do you want us to pay you?”

Now, Muscle Shoals has got the Swampers
Lord, they get me off so much
They pick me up when I'm feeling blue

Now, how 'bout you?

— Lynyrd Skynryd, Sweet Home Alabama (1974)

Simon booked the studio for four days to cut Mardi Gras but the Swampers surprised him and got the track he wanted perfectly on the second take. With three days to spare, Paul Simon sat on a stool with his guitar and noodled, needing something for the B-side. 

Hawkins told Modern Drummer in 2017, ”He sat down in a chair with his guitar and he said, ‘Fellas, I'm going to play you some songs. Just tell me which ones you like.’ He played and we said, ‘Yeah! That 'Kodachrome' sounds pretty good.’” 

The song takes its name from the extravibrant color saturation of the popular 1970s camera film. As the lyric says, it made you think the whole world is a sunny day.

As I think back to my memories of childhood, as my little sister played with her doll house, my neighborhood buddies and I would play versions of Cops and Robbers or Cowboys and Indians. I never much liked Cowboys and Indians. I’d like to think I sensed the implicit genocide rationalization I was being spoon-fed, but honestly, I would have been too young and privileged to grasp it. 

The underlying premise of these games was that there were good guys and bad guys, and the good guys always won. That was the Kodachromed part. Growing up in the 50s and 60s, I saw the black and white images from beatings at the lunch counter sit-ins and the Freedom Riders bus in Nashville and later, Bloody Sunday on the Edmond Pettit Bridge. The first song I learned on guitar was The Times They Are a' Changing. At 17, I watched U.S. Marshalls escorting little Ruby Bridges shown in the classic painting by Norman Rockwell for Look magazine in 1964. These impressions reinforced my embed that “the arc of the moral universe is long, but it bends towards justice.”

So it was that on September 22, 2023 when the Justice Department indicted the chair of the Senate Foreign Relations Committee, a Blue State Democrat, and his wife on charges of conspiracy to commit bribery, fraud and extortion (and as unregistered foreign agents of the Egyptian government), it appeared to me the rule of law had once more been affirmed. But then, when a District Judge in Florida, the US Supreme Court and the 11th Circuit began to drag their heels on rulings that would keep a presidential candidate from trial for his various indictments before the next election, my sense of justice was pained. Likewise, when the US, UK, Germany, France, Japan, Switzerland, Canada, Netherlands, Italy, Australia and Finland all withdrew funding from the United Nations’ Relief and Works Agency (UNRWA) in Gaza, citing allegations (possibly induced by IDF torture of Palestinan prisoners) by John Bolton and Israel that some of its 40,000 employees participated in the Hamas October 7 atrocity, my sense of justice was offended.

In 1965, I studied pre-law, taking courses on the Constitution and ethics at the Marshall School of Syracuse University. I went on to law school and later practiced for some decades, mainly doing federal appellate work. Some of my cases—involving the abuse of citizens by various agencies in control of nuclear energy and weapons or the rights of native peoples—tempted me to pursue justice at the World Court, but I lacked a willing government as a client. So it was that when South Africa stepped forward to champion the rights of Gaza’s children, I rejoiced. I poured over the briefs. I watched the two days of televised arguments and was thrilled by the Court’s order handed down last week. 

South Africa had nailed it.

(From paragraph 46) While figures relating to the Gaza Strip cannot be independently verified, recent information indicates that 25,700 Palestinians have been killed, over 63,000 injuries have been reported, over 360,000 housing units have been destroyed or partially damaged and approximately 1.7 million persons have been internally displaced.

In paragraph 49, the court went on to quote senior officials at length, including Philippe Lazzarini, Commissioner General of UNRWA:

In the past 100 days, sustained bombardment across the Gaza Strip caused the mass displacement of a population that is in a state of flux - constantly uprooted and forced to leave overnight, only to move to places that are just as unsafe. This has been the largest displacement of the Palestinian people since 1948.

This war affected more than 2 million people - the entire population of Gaza.

Many will carry lifelong scars, both physical and psychological. The vast majority, including children, are deeply traumatized.

Overcrowded and unsanitary UNRWA shelters have now become 'home' to more than 1.4 million people. They lack everything, from food to hygiene to privacy. People live in inhumane conditions where diseases are spreading, including among children.

They live through the unlivable, with the clock ticking fast towards famine.

The plight of children in Gaza is especially heartbreaking. An entire generation of children is traumatized and will take years to heal. Thousands have been killed, maimed, and orphaned. Hundreds of thousands are deprived of education. Their future is in jeopardy, with far-reaching and long-lasting consequences.

Like the US ex-president, Israel’s leaders could not help but blurt out their intentions, and those, too, were cited by the Court:

 

Yoav Gallant, Defense Minister: "complete siege" … "no electricity, no food, no fuel" … "everything closed.” Speaking to Israeli troops on the Gaza border: "I have released all restraints... You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against... Gaza won't return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn't take one day, it will take a week, it will take weeks or even months, we will reach all places.”

Isaac Herzog, President of Israel: "It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d'état. But we are at war. We are at war. We are at war. We are defending our homes. We are protecting our homes. That's the truth. And when a nation protects its home, it fights. And we will fight until we break their backbone.”

Israel Katz, Minister of Energy and Infrastructure: "They will not receive a drop of water or a single battery until they leave the world."

It bears remembering that:

UNRWA is separate from the UN’s main refugee agency, the UNHCR, and deals only with Palestinian refugees. Although Israel does not want you to know it, the reason for there being two UN refugee agencies is because Israel and its western backers insisted on the division back in 1948.

***

Israel’s efforts to get rid of UNRWA are not new. They date back many years. For a number of reasons, the UN refugee agency is a thorn in Israel’s side – and all the more so in Gaza. Not least, it has provided a lifeline to Palestinians there, keeping them fed and cared for, and providing jobs to many thousands of local people in a place where unemployment rates are among the highest in the world. It has invested in infrastructure like hospitals and schools that make life in Gaza more bearable, when Israel’s goal has long been to make the enclave uninhabitable. UNRWA’s well-run schools, staffed by local Palestinians, teach the children their own history, about where their grandparents once lived, and of Israel’s campaign of dispossession and ethnic cleansing against them.

Former British Ambassador Craig Murray, who attended the proceedings, explained what happened after the judgment was read:

All of Israel’s arguments were lost. Every one. The substantial effort Israel put into having the case dismissed on procedural grounds was brushed aside. So was self-defence. And in its findings of the facts, the Court plainly found to be untrue the Israeli lies about avoidance of civilian casualties, the responsibility of Hamas for the damage to infrastructure, and the access of relief aid to Gaza.

***

…[T]he immediate response to the ICJ ruling was a coordinated attack by Israel and the combined imperialist powers on UNRWA, designed to accelerate the genocide by stopping aid, to provide a propaganda counter-narrative to the ICJ judgment, and to reduce the credibility of UNRWA’s evidence before the court.

Western outlets like The New York Times and the Washington Post declared that Israel won at ICJ because the order did not call for a ceasefire. It was a distinction without meaning. The Genocide Convention does not confer that power on the ICJ. Per its actual authority, the Court, by a vote of 15 to 2, ordered Israel to stop killing Palestinian civilians. It ordered Israel to stop causing serious bodily or mental harm to Palestinian civilians. The Court ordered them to stop deliberately inflicting on Palestinians conditions of life calculated to bring about their physical destruction in whole or in part, or imposing measures intended to prevent births. 

I can imagine what went on in a conference room in the Israel wing at the State Department. They knew this was going to look bad if the US denounced the ICJ. The ruling was delivered by an American, Joan E. Donoghue, an international legal scholar, former U.S. State Department official, and now the President (chief judge) of the Court. So instead, they came up with a ruse: attack Philippe Lazzarini; attack UNRWA; attack the witnesses. Never mind that UNRWA has had at least 152 staffers killed by Israel in Gaza to date. UNRWA is now Hamas. The NATO group fell in line with that narrative. So did the Kodachrome bobbleheads at BBC, CNN, MSNBC, Fox, etc.

Nonetheless, Algeria announced it would take the order to the UN Security Council for enforcement, which is the next step. Perhaps the UN General Assembly will suspend Israel, a relatively toothless punishment. In California, a genocide complicity suit brought by the Center for Constitutional Rights against Joe Biden was dismissed on jurisdictional grounds (the judiciary traditionally gives a wide berth to US foreign policy), but not before the District Court found that it is plausible that Israel’s conduct amounts to genocide.” 

“There are rare cases in which the preferred outcome is inaccessible to the court. This is one of those cases,” the Court ruled, flouting a maxim extending back through English jurisprudence for 300 years or to Marbury v. Madison in 1803. When the law bestows a right, it must also extend a remedy for violations of that right, regardless of whether any other branch has provided one. Ubi jus ibi remedium.

Was I a younger man, that is the sort of action I would like to be getting involved with. The Biden Administration’s reply has been… (wait for it) …absolute presidential immunity.

One has to wonder what UN Secretary-General Antonio Guterrez thinks of Joe Biden now, knowing that he just tried to force the only aid agency working in Gaza to be terminated until further notice, and it is up to Guterrez to try to keep it alive.

Back in 2018, for example, the refugee agency was plunged into an existential crisis when Biden’s predecessor acquiesced to Israeli pressure and cut all its funding. Even after the decision was reversed, the agency has been limping along financially. It not only bears responsibility for 2.3 million in Gaza, but also for millions of other Palestinian refugees across the region – in the West Bank, Lebanon, Jordan and Syria. Four million refugees across the region are at imminent risk of losing food, health care and schooling.

The Haudensaunee Peacemaker said of justice,

The pursuit of peace is not merely the pursuit of the absense of violence, because peace is never achieved until justice is achieved. And justice is not achieved until everyone’s interests are addressed. So, you will never actually finish addressing everyone’s issues. There will always be unfinished business. You can’t achieve peace unless it is accompanied by constant striving to address the issues of justice. This means your job will never end.

Commentator Chris Hayes, host of All In with Chris Hayes, expressed his concern with how justice is being corrupted. On January 26, he said:

We have two sayings about the justice system. They're clichés but you know people use them for a reason and I think they get at the heart of this whole conflict, right?

One is, “justice delayed is justice denied.” If the legal system moves too slowly, then it can't deliver justice at all.

And the other idea is “the wheels of justice turn slowly but they grind exceedingly fine.” So, yes the legal system moves slowly, but it gets the right results and it has to grind slowly to grind fine.

***

That, of course, brings us to the most high-stakes case of all—the four criminal cases against Donald Trump, totaling 91 felony counts. The speed at which these cases move is obviously absolutely critical. This is a zero-sum game. This is a finite thing. There are 284 days left until the election. Every single day Trump and his lawyers are able to delay the proceedings to push back a trial is a victory for the ex-president.

Now, to her credit, Judge Tanya Chutkin, overseeing the federal case about Trump's attempted coup, has been moving quite efficiently. She set a trial date for March 4th, but the case is on hold while we await the appeals court decision on Trump's immunity argument. It's also clear the slow pace of Trump's cases is already helping him politically, as the Wall Street Journal explains. The former president is proving less vulnerable on a legal front than many of his critics predicted. Trump has raised money on his legal battle, seeing his support grow as he depicts himself as a victim of partisan prosecutors marshaling a crooked justice system to thwart his bid for a second term in the White House.

MSNBC’s Rachel Maddow, going on Inside with Jen Psaki, added:

What he's offering is strongman leadership, the end of politics, the end of elections, the end—or the sidelining or domesticating—of the Judiciary and the Congress. He'll be the man in charge. He'll get it done. And that's what he's selling, and that's what they are very eager to buy.

***

There's nothing magic about the American populace that makes us immune to the promises of strongman leadership… These messages have appeal, and there are ways that you can drive a populace toward them:

• You can denigrate the government
• You can say that government itself is the problem
• You can make it so the legislative branch never works and is seen as an object of ridicule, pity, and hostility rather than as one of our three branches of government
• You can challenge the rule of law and say that judges are all biased
• Flirting with the kinds of conspiracy theories that make people look to mythical fantasies for solving their problems instead of actual government
• Flirting with paramilitary violence, where you bring violence into the political sphere and normal people are too intimidated to engage in normal political behavior.

The thinking is that if the Candidate can delay the enforcement of judgments against him until he is in power, he will skate past them by calling off the prosecutors, claiming executive privilege, or issuing himself a pardon. This is not unreasonable logic for this particular felon since the emoluments cases brought to disgorge him of his ill-gotten White House grift were mooted by overly tardy procedures and then dismissed.

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Yet, everyone needs to catch up on a key legal point. Ford lacked the power to pardon Nixon, just as the present candidate lacks any power to grant “preemptive pardons” to his first-term minions or to himself. A "pre-emptive pardon" is a nullity in constitutional law. A pardon can only be given following a conviction. Otherwise, the framers explained, pardons that come before trial would prevent the truth from coming to light.    

The notion that a president could dispense preemptive pardons like party favors to political or criminal cronies would have appalled the framers. In his defense of the soldiers accused of the Boston Massacre, John Adams, later to become the second President of the United States, summed up his case to the jury:

The law, no passion can disturb. ’Tis void of desire and fear, lust and anger. ’Tis mens sine affectu; written reason; retaining some measure of the divine perfection. It does not enjoin that which pleases a weak, frail man, but without regard to persons, commands that which is good, and punishes evil in all, whether rich, or poor, high or low. ’Tis deaf, inexorable, inflexible.

Most bobbleheads think that whether a President can pardon himself is a grey area, but they are incorrect. The power of the President in this regard was curtailed by Adams himself in 1780. He made it very clear, both in the Massachusetts Constitution and then in the convention for the US Constitution, that under no case would the framers accept any construction that allowed a criminal to pardon or immunize themselves like some kind of monarch.   

As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.

***

Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

Consider the 18th Century context. The Puritans and early colonists had very little regard for laws and lawyers. They had suffered kings, conscriptions and martyrdom. Laws had often been used to oppress them more than uphold their rights. In the small-town, tight-knit communities of colonial Massachusetts, there was a preference for community-resolved disputes, making lawyers largely unnecessary. Among its first seventy-five graduating classes, only two Harvard grads became lawyers. Swimming against this tide were advocates of law that meted justice as the sentinel of liberty. Adams, Jefferson, Washington, Hamilton, Madison and Franklin espoused a radical, anti-monarchal idea: a government of laws, not men.

A president is no more exempt than any common criminal. What a radical idea!

In this same way, UN conventions, agreements and treaties have been adopted to create a system of ordered liberty for the world. Among these is the Genocide Convention that binds presidents like Benjamin Netanyahu and Joseph Biden. Men may scoff but laws do not.

Sometimes I wish that we were more like the Vulcans in Star Trek, as logical as Spock. Then I recall that after coming under Alliance control, Vulcan became a prison planet where members of the Terran Rebellion, dissidents, were sent to allow its desolate surface conditions to determine their fates, a form of genocide.

Eastman Kodak retired Kodachrome in 2009. Its film business had gone the way of buggy whips with the advent of horseless carriages.

The world may not be as color-saturated, but with persistent and diligent effort, it can be fair and just. We need to apply the same rules to everyone. In order to find peace, we must first find justice.

References

skʌ̃.nːʌ̃.ɾahaːwi, “on creating the conditions for peace,” The Great Law of Peace (early 15th century), interpretation by John Mohawk.

International Court of Justice, Order in re: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) Request for the Indication of Provisional Measures (January 26, 2024).

Mathews, Amanda A., “A Government of Laws and Not of Men": John Adams, Attorney, and the Massachusetts Constitution of 1780, Boston College Electronic Thesis or Dissertation (2008).

UNRWA, "The Gaza Strip: 100 days of death, destruction and displacement", Statement by Philippe Lazzarini, Commissioner-General of UNRWA (13 Jan. 2024).

Israa University, whose campus had been used by Israel as a military base
for ten weeks, being demolished after the army redeployed.

 Meanwhile, let’s end these wars. We support peace in the West Bank and Gaza and the efforts by the Center for Constitutional Rights, National Lawyers Guild, Government of South Africa and others to bring an immediate cessation to the war. Global Village Institute has sponsored the Green Kibbutz network in the East Bank and the Marda Permaculture Farm in the West Bank for over 30 years and will continue to do so, with your assistance. We also aid Ukrainian families seeking refuge in ecovillages and permaculture farms along the Green Road. You can donate by directing donations to us at ecovillage@thefarm.org. There is more information on the Global Village Institute website (GVIx.org). Thank you for your help.

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