คุณสมเถา VS Mr.Amsterdam…….เชื่อใครดี

03 ส.ค.

‘A lawyer’s half-truth’ 

For the past week now, friends of mine in America and elsewhere have been emailing me a document that appears to be by the controversial lawyer-apologist Robert Amsterdam. The header reads “The Bangkok Massacres: A Call for Accountability: The Thailand White Paper Final by Robert Amsterdam”. These emails to me invariably include comments like “Do something about this!” Though what I am supposed to do, I am not quite sure. Procrastinating as long as I could – after all, I did have Mahler 3 to conduct – I finally got around to double-clicking the icon today. It was then that I learned that the document is 75 pages long.

As I started to read it, I realised that this document has something in common with a novel by my friend Norman Spinrad called “The Iron Dream”. In this book, Spinrad used novelistic licence to alter one tiny moment in our past. He takes a real-life historical figure, a mediocre artist named Adolf Schickelgruber, and instead of leaving him in Europe, causes him to emigrate to the United States where he becomes a mediocre science fiction writer. The book, then, is the “award-winning novel” that might have been written by this person – and it’s a bizarre epic fantasy about blonde, noble Aryans conquering evil, quasi-Semitic lower orders of humanity to bring about a shining future. It’s the Lord of the Rings version of the Third Reich.

Now, in real life, Schickelgruber didn’t emigrate to America, but did change his surname to Hitler. The rest you know.

Mr Amsterdam’s White Paper has a great deal in common with Norman Spinrad’s novel, although it doesn’t purport to be a novel. Both pieces change a little bit of history and extrapolate an edifice of the imagination from that little change. The White Paper is, in its own way, as much of a masterpiece as “The Iron Dream”, but to understand why, one must first consider what it is that a novelist does, and what it is that a lawyer does.

Both novelists and lawyers build houses of cards. But although a novelist may invent anything that he likes, he is only successful insofar as the foundation he builds on is one of truth. A novel only truly speaks to the reader if in that novel the reader can recognise himself. As the Dutch novelist Gerard Reve said, “Ik lieg de waarheid” – “I lie the truth”.

What a lawyer ostensibly does is very similar. He builds up, through what is hopefully an overwhelming preponderance of evidence, a viable, sequential story – a sort of novel, if you like. But a lawyer’s primary loyalty is not to the truth. It is to the client. His sole motivation is convincing the jury – you, the reader in this case – that whatever it is his client is supposed to have done, he didn’t do it. The cards from which the house of cards is built may all be “truths” … but the foundation of the house needs not be the truth at all.

In other words, a novelist must use invention to reach a truthful conclusion … whereas a lawyer may well use truth to get to a conclusion that is pure invention.

Of course, truth by itself seldom leads to untrue conclusions. This is where the lawyer must have recourse to the most important weapon in his armoury: the half-truth.

If I were to take every half-truth in the 75-page treatise and respond to it, I could probably win every single argument; but by then the war would have been lost. And that is, of course, what Mr Amsterdam wishes people to do. If he can set a few dozen officials in the Thai government to work denouncing his arguments and dredging up the facts, no one will notice what all this is actually about.

We will take Mr Amsterdam at his word when he says that he is Mr Thaksin’s lawyer. But it may seem a little odd for him to be defending someone who has already been convicted. Nevertheless, Mr Amsterdam has a history of doing just that. While one of his previous clients, Mr Khordokhovsky of the Yukos case, was already in jail, he went on an international whitewashing binge. He was, in effect, Khordokhovsky’s lobbyist, not his lawyer. His efforts were not entirely effective, however. There is no reason his methods would work any better now, unless we allow them to. Nevertheless, there is a real danger that Thailand’s government will miss the point, rise to the bait and waste a lot of valuable time trying to “handle” Amsterdam’s posturing.

I’m not a lawyer. Therefore, I see no reason to answer point for point, as a lawyer would. Rather, I would like to respond as a novelist. Because Amsterdam’s White Paper is as fictitious as any novel. But if it somehow manages to illuminate some fundamental truths, it may still be considered valid. And that is the question we need to answer: Is it valid? Is it necessary? Or are we simply being distracted from what we should be looking at?

So let’s start by cutting to the chase. Who is Mr Amsterdam working for, and what is the actual purpose of this so-called White Paper? The answer, of course, is that his employer is Mr Thaksin, and Mr Amsterdam has been employed to rehabilitate his boss’s reputation with the eventual goal of returning him to Thailand with his wealth intact and without having to suffer any prison time.

Once we understand that the White Paper is not actually a serious call for this government to come to account, nor a genuine, balanced analysis of the political situation in Thailand, but simply one of the tools Mr Amsterdam has fashioned in order to realise his employer’s goals, it will all make very much more sense.

Let us examine this piece of Mr Amsterdam’s arsenal for what it is. You are the jury. Cutting through the PR and the rhetoric, Mr Thaksin is, at present, a condemned criminal on the lam. The governments of the major powers have accepted the findings of Thailand’s legal system. And by hiring Mr Amsterdam, Mr Thaksin himself has acknowledged what the terms of discourse are. It is up to Mr Amsterdam to shift the war back to more congenial turf.

What are the methods by which a lawyer gets a rapist, corrupt politician or mafia don off the hook? Well, there are several main ones, and the White Paper uses every single one of them.

(a) Put the victim on trial.

(b) Overwhelm the jury with irrelevant facts and figures.

(c) Construct elegant arguments from flawed premises.

(d) Use emotionally charged “power words” to alter the jury’s perspective on events.

(e) Engage the jury’s sympathy for the perpetrator.

(f) Try the case in the court of public opinion and the media.

Once the White Paper is examined from the point of view of its author’s motivation, most of its blandishments become irrelevant.

I’d like to discuss how the White Paper adheres to the classic rulebook.

We’ll start with (a): Put the victim on trial. Well, here’s where the fun begins. “She made me do it” is the rapist’s first line of defence and the White Paper’s title makes it quite clear that this will be the main thrust of Amsterdam’s argument. A historically selective introduction soon leads to an equally selective rundown of the events we all lived through this year, culminating in the chapter heading “crimes against humanity” in which Mr Amsterdam makes much of the legal definition of such crimes. He then tries to link this definition with the Rajprasong events, but by using the phrase “appears to be present”, he manages to let himself off the hook. Indeed, the phrase “appears to” is a constant mantra here, because he’s not really accusing the government of perpetrating a massacre. He is saying that there is an appearance of a massacre. This legalistic hair-splitting allows him to be as sensationalist as he wants, while affording himself deniability at every turn.

When I say that Mr Amsterdam is putting the victim on trial, I am not saying that the victim is the government, the Democratic Party or Mr Abhisit. The victim is Thailand.

Mr Thaksin has been convicted not of stealing from the Democratic Party, but of stealing from Thailand. It is the judiciary system of Thailand that has convicted him, not the yellow shirts and not the elite. When Mr Thaksin’s government ordered the extrajudicial killing of thousands of alleged drug dealers, when it permitted the torture and slaying of Muslims in the South of Thailand, these were crimes against Thailand. He has not yet been convicted of these latter crimes, but by painting Abhisit as a vicious murderer, Mr Amsterdam is launching a pre-emptive strike against the bringing of such charges against Mr Thaksin.

As a lawyer Mr Amsterdam knows perfectly well that the springtime violence does not rise to the level of a crime against humanity as defined by the laws he himself cites. If this were true, US presidents would have been on the dock for Kent State and Waco. These were terrible tragedies – but hardly the Killing Fields or Buchenwald. Surely Mr Amsterdam knows better than to equate an attempt by a recognised government to restore order, when a city has been held hostage by lawless ruffians for months, with the Holocaust.

So let’s return to the rapist analogy. What is Mr Amsterdam’s point? It is this: “Okay, so maybe my client raped Thailand. But Thailand was a bad girl. She brought it on herself.”

Let’s look at (b) now, the irrelevant facts and figures. I’ve already shown how Mr Amsterdam quotes masses of legal data, makes it look as though it’s relevant, then squirms out of the whole thing with the phrase “appears to”. His second chapter, a reductionist summary of the history of Thailand’s constitutional development, is full of indisputable facts, but for real analysis one might want to read the commentary of a genuine historian such as David Wyatt. This is the icing without the cake, and it’s there to provide a cloak of verisimilitude to Mr Amsterdam’s specious arguments.

The flawed premise (c) is evident from the very opening sentence of Mr Amsterdam’s thesis. “For four years,” he says, “the people of Thailand have been the victims of a systematic and unrelenting assault on their most fundamental right … self determination through genuine elections.”

Powerful stuff. But it is a half-truth. The entire logical thread of the White Paper leads outward from this half-truth. And as the truth gets halved again and again, recursively, we finally end up with what I would call a near-lie. It is only the constant repetition of the word “appears” that prevents the paper from being actual lies.

You see, Mr Amsterdam is protecting his client, but on a deeper level, he is protecting himself. Proud as he is of the elegance of his constructed arguments, he is forced to tell us, in the small print, that it’s a house of cards.

To tell the whole-truth version of this opening sentence would be to try to understand both sides of the issue, to comprehend not only that some people’s rights were violated in the last four years, but that the reason they were violated may have been a reaction to similar, in many cases more egregious, violations during the Thaksin era. This is not about an evil military elitist monolith clamping down on a noble, pro-people regime. Rather it is the story of a regime that began with great optimism and with the highest of hopes, supported by almost everyone as a breath of fresh air … a regime that moved steadily away from its professed principles towards repression, darkness and corruption, until the only mechanism that could be found to stop the country’s self-destruction was the unpopular and outmoded strategy of the military coup – a strategy that the military itself realised, almost immediately, was not working. That the military came to its senses and restored an elected government almost immediately and has so far in fact resisted the temptation to have another coup – though it has been at times needlessly meddlesome. It is the story of groups of people, yellows and reds and others, unable to accept that a democracy thrives on diversity of opinion, and that in a mature democracy, when you lose an election, you don’t seize airports or burn down shopping malls – you try to win the next one fair and square. It is also the story of a leader having to choose on a daily basis between unacceptable alternatives, and finally coming up with a plan that has pleased no one – and which is therefore almost certainly the only correct one.

To tell the whole truth would be to describe this last year as only one of a series of dramatic milestones in an arduous journey towards democracy that has had reverses in the past, but is still clearly, inexorably, moving in the right direction.

He may or may not be a lawyer in this case, but a historian he’s clearly not.

Mr Amsterdam does not have a responsibility to tell us the whole truth. His responsibility is to the source of his paycheque. His reasoning, by the very nature of who he is and what he does, is necessarily tainted.

Semantics are Mr Amsterdam’s stock in trade and this falls into category (d). Words like “dictatorship” are bandied about with reckless abandon. His use of the word “truth” in his conclusion (that there can be no reconciliation without truth) is positively Orwellian. And as this farrago of half-truths is destined to provoke conflict, his paper in fact proves his point.

Point (e) – to engage the jury’s sympathy for the perpetrator – Mr Amsterdam takes care right at the beginning by trotting out our “rapist” in a nice clean suit, smelling like a rose. He has instructed his client, slayer of Muslims, to speak of inclusiveness. “We must renounce all violence,”says the man under whose watch over 2,000 alleged drug dealers appear (yes, I’m using legalspeak here too) to have been murdered to fulfil a quota requirement that could lead to a declaration of victory in a “drug war”. I think we’re also supposed to feel sorry that the coup took away Mr Thaksin’s right to vote, but of course in countries like the US, criminals in many states lose that right.

My final item in my catalogue of the shyster’s arsenal is the “court of public opinion”. In this case, it is the only court that matters, because the conviction has already taken place.

You may wonder why this long review doesn’t actually take apart Mr Amsterdam’s arguments piece by piece. It is because, by and large, the arguments are perfectly sound – they are just based on incomplete or selective evidence.

Yes, of course, Mr Amsterdam, there should be accountability. Yes, of course, the government has made some missteps, and the clumsy handling of Internet censorship is one of them. Yes, of course Thailand has a duty to investigate and prosecute. Of course, actual accountability and actual investigation might land Mr Amsterdam’s client in more hot water. So why not turn off the hot air for a moment and think about what would really be good for your client?

In short, this 75-page document is a waste of our time, and a bad use of Mr Thaksin’s money. It’s unlikely to convince anyone except the already convinced. It fails to connect the dots. It’s a failure as a logical construct, and it’s a failure as fiction. It is, however, like Norman Spinrad’s novel, a triumph of the imagination. Not only have the people of Thailand been had, but I fear that Mr Thaksin has been as well.

If Mr Amsterdam cared a little more about his client and a little less about his paycheque, he would give him the following advice: Mr Thaksin, bend a little. You’re not in exile, you know. Stop pretending that you were “kicked out of Thailand”. Come home and do your time. Everyone will forgive you if you show just a little contrition. If you want to be a real saint, and not just “play one on TV”, you must be prepared for a little real suffering. You did a lot of good things for this country, but you got greedy. You got careless. But the Thai people are actually pretty good at reconciliation – it’s built into their culture. Put away your wallet and start trusting them.

In the meantime I will try to think of a practical use for this White Paper. I can only think of one so far, but it’s not going to stay white for long


Robert Amsterdam responds to Somtow’s article

At the cost of drawing additional attention to it, it is probably worth our while to say a few words about the “response” to our White Paper that has appeared on Somtow Sucharitkul’s blog. Indeed, while Somtow’s retort contains little in the way of substance, highlighting its contents gives us a chance to illustrate yet again the scurrilous and fact-free nature of the reactions that our advocacy has sparked off among the government’s representatives and supporters.

In a way, Somtow provides in his own words one of the strongest endorsements for the White Paper: “You may wonder why this long review doesn’t actually take apart Mr Amsterdam’s arguments piece by piece. It is because, by and large, the arguments are perfectly sound – they are just based on incomplete or selective evidence”. We would of course welcome a vigorous debate on whatever the “complete” evidence that Somtow could provide to disprove our arguments, however in the response he chose not to deal with any of the facts we present. Instead, there is the very exhausting distraction of personal attacks and highlighting that I am retained by Thaksin Shinawatra, a fact which we have made abundantly clear in every action we have taken and every document we have published � however few can explain what this has to do with the facts presented in the paper.

Aside from mimicking the government’s own reaction to our White Paper – a mixture of name-calling, racist dog whistles and conspiracy theory about the true nature of our motives – Somtow’s main complaint about the White Paper is its supposed reliance on a collection of “half-truths” skilfully woven together into what ultimately amounts to a fictional account of the events of the past several years. We are certainly grateful that Somtow decided not to overwhelm us with his superior debating skills and command of the subject, sparing us the humiliation of publicly exposing all the “half-truths” the paper supposedly contains. We take him at his word that he would have been able to “win every single argument” had he chosen to engage either the facts we present or our interpretation of the evidence. We are disappointed, however, that Somtow would deny us the opportunity to be enlightened. The one “half-truth” he does identify, in fact, reveals Somtow’s penchant for speaking only the full, unvarnished truth, a virtue we are anxious to see him apply to the remainder of the document.

No doubt coincidentally, Somtow takes issue with a statement that appears in the paper’s first paragraph:

“The people of Thailand have been the victims of a systematic and unrelenting assault on their most fundamental right – the right to self-determination through genuine elections.”

He explains to us that the purpose of the 2006 military coup was merely “to stop the country’s self-destruction” and reverse its descent into “repression, darkness and corruption”. We must confess we had previously failed to grasp the purity of the generals’ motives. In fact, we freely admit to having failed to understand that the way out of “repression, darkness and corruption” is (in retrospect quite obviously) more “repression, darkness and corruption”. Judging from the wealth of indicators suggesting that the past four years have actually seen corruption increase while freedom of expression, civil/political rights and Thailand’s human rights record have steadily deteriorated, we cannot but agree with Somtow that Thailand finds itself on the right path. We sincerely regret our error.

Because Somtow does not address any of the arguments presented in the rest of the White Paper, we are deprived of the opportunity to defer to his superior, more complete version of “the truth” on the contents of the remaining 74-and-a-half pages. As a result, the “half-truths” with which we have allegedly stacked our paper will have to stand, in the absence of further guidance from Somtow. But whereas we do not see the need to modify arguments whose substance has essentially gone unchallenged by the government (or the people it relies upon to put an acceptable spin on its shameful performance), we would like to take the opportunity to offer a defence of our motives.

First, Somtow maintains that our despicable team of shyster lobbyists knows full well that “the springtime violence does not rise to the level of a crime against humanity”, adding that tragedies like Kent State and Waco cannot compare to real crimes against humanity like the Killing Fields and Buchenwald. Because we have actually read the relevant statutes, we are in a position to correct Mr Somtow’s misapprehension. Whether or not a “crime against humanity” has been committed does not hinge on the scale of the tragedy in question. As we detail in the paper itself (admittedly, beyond the first page), for murder to amount to a “crime against humanity”, the killing must be: (1) directed against a “civilian population”, (2) as part of “a widespread or systematic attack”, (3) pursuant to or in furtherance of a “State or organisational policy to commit such attack”, (4) with knowledge of the attack.

The reason why the killings at Waco and Kent State are not crimes against humanity, while the Holocaust and the Cambodian genocide are, has nothing to do with the magnitude of the events; it has everything to do with the existence of governmental policy to systematically murder a certain group of people – it makes no difference whatsoever how many of them wind up dead as a result. We note in the White Paper that there is significant evidence pointing to the existence of such a policy of systematic persecution and violence. Incidentally, the recurrent use of qualifiers like “appears to be”, which Somtow singles out as evidence of our disingenuousness, is owed to the fact that we do not presume to elevate ourselves to the role of judge, jury and executioner, as the government has been keen to do in its labelling of the red shirts as “terrorists”. The threshold we set out to meet is to show that there is sufficient evidence of a crime (if you will, a strong enough “appearance” of a crime) to warrant the kind of independent and complete investigation required by international law. Apparently, every major human rights organisation around the world agrees with us on this count.

This brings us to Somtow’s accusation that the White Paper is somehow an “attack on Thailand”, a further assault on the victim of Thaksin’s heinous “crimes” (never mind that: 1. Had it been left up to “Thailand”, Mr Thaksin would still be prime minister; and 2. It took a military coup and the manipulation of a judicial system now almost universally recognised as rigged just to convict Mr Thaksin of the pettiest of offences.) Somtow’s line of reasoning is consistent with the government’s ongoing attempt to equate itself with the country as a whole and, by implication, accuse its critics of wanting to “destroy Thailand”. In Somtow’s (fantasy) world, see, criticism of Thaksin’s administration is a heroic act of patriotism, while criticism of Abhisit’s administration is a despicable act of treason. Still, it is interesting that a call for an “independent and complete investigation” into the deaths of almost a hundred people could earn someone the accusation of wanting to “destroy the country”. Such an investigation does not pose any threat to the country, which is more mature and eager to learn the truth than Somtow and his ilk have ever given it credit for. The hysteria of the reactions that our appeal has elicited, however, has made it all too clear that the current government considers a full inquiry into the events of April and May an existential threat to itself.

Contrary to what Somtow suggests, the goal of the paper is not to seek anyone’s absolution or dispensation. Note that we called for an investigation and not for a blanket amnesty – something that Thailand’s establishment has resorted to before when it has found it impractical to conduct the sham of an investigation it is poised to launch in the coming months. On this point, Somtow appears to apply a different standard to the investigation into the current government’s alleged crimes and the investigation into the previous government’s alleged crimes. On the one hand, he expresses no sympathy for the doubts we raise about the investigative panel to be led by Khanit na Nakorn. On the other hand, Somtow still continues to argue that “Mr Thaksin’s government ordered the extrajudicial killing of thousands of alleged drug dealers” in spite of the fact that an investigative panel led by one Khanit na Nakorn found no grounds for anyone’s prosecution for the conduct of the “War on Drugs”. We, at least, have the coherence to argue that “independent and complete” investigations should be conducted into ALL instances where there is reason to believe that human rights violations have occurred – let the chips fall where they may. Somtow wants to have the luxury to make his own judgement, in the absence of a credible investigation, about which administration is guilty of human rights abuses and which one is not – and to decide for everyone else which human rights abuses constitute “attacks on Thailand” and which human rights abuses were perpetrated in a valiant attempt to defend Thailand. This is a luxury that international law does not afford him, or anyone else for that matter.

Finally, it is beyond farcical that Somtow would be the one to accuse us of employing Orwellian language. Far from “Orwellian”, the statement “there can be no reconciliation without truth” seems to us rather obvious. The reason why Thailand has no “reconciliation” today is precisely that so many previous instances of state violence were covered up in the interest of protecting entrenched powers. What strikes us as Orwellian is that the government would ground a campaign of censorship in its commitment to freedom of expression, a slide towards authoritarianism in the need to preserve democracy and a continued attempt to crush all forms of dissent in the imperative to achieve “reconciliation”. It is similarly preposterous than an apologist for a government that has shown nothing but fear and contempt for its own citizens would have the nerve to urge someone who has won three, freely conducted elections to “trust the people”. Say what you will about Mr Thaksin, but if the current government had “trusted the people” as much as he has consistently been willing to, the hundred men and women who died because Mr Abhisit did not feel sufficiently confident in his electoral prospects would still be alive today


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