He was allowed one more six-month tour. After that, he was told, he would be on his own.
I possess few keepsakes from my childhood on the Hill; for all my ambivalence about growing up where I did, I treasure them with a reverent enthusiasm, and keep them in a marquetry box of honey and ebony woods that my maternal grandfather, an amateur carpenter, a man I never met, had crafted when my mother was a little girl. When times are rough, I can close the door to my room, look at the relics, and feel a kind of solace. It would be a frivolous practice if it weren’t so effective.
One of my favorites is a photograph of my father and me with Enrico Fermi. I am in Fermi’s arms, all of several months old, and on his face is a passionate, clear smile. My father wears a smile, too, standing next to us. He is looking at his boy with eyes that reflect both love and distance. The photograph was taken at Edith Warner’s house down at Otowi, I have since confirmed, which stands on the banks of the Rio Grande at the foot of the Hill, where the old Chili Line used to come through on its narrow-gauge rails. My parents had just attended the corn dance at San Ildefonso pueblo, when Fermi met Maria Martinez—no relation to our sometime companion Fernando—the famous potter. It must have been a wonderful occasion. The image is saturated with vitality. For years I swore I could remember the sound of the Nobel physicist’s voice, but no one believed me. —You were too young, Brice, my father stated. I have never given up on this fancy of mine, even though Fermi left the Hill before my second birthday and was, by the time Kip and I were ten, dead of a cancer probably brought on by his experiments in the thirties in Italy, when he bombarded with neutrons everything from arsenic to iodine to copper to water.
Another is a postcard from Truth or Consequences, New Mexico. My mother and father, who were on vacation driving around Texas and the southern part of New Mexico, sent it to Jessica and me on our fifth wedding anniversary. On the back, in my mother’s hand, is the message, “Dear ones, happiest of anniversaries from this dusty old place, from your dusty old folks who want you to remember that Love is the Truth and Joy is the Consequence, many such consequences and truths to you both, Mother and Dad.” My father wrote out, “And don’t forget to have fun every so often”—as if he knew whereof he spoke—beneath her philosophical admonishments.
In the box is a dried rattlesnake tail that gives off a percussive hiss when shaken in the air, and never fails to conjure the fear I felt when I killed its bearer with a camping shovel back when I was a kid. There is a fossil ammonite I found near Nambé Falls in a shale bed, remnant of the days when that whole wilderness was a seabed submerged under a branch of the Gulf of Mexico. There is a petroglyph made in school using a hammer and nail on small flat riverstone. The image is the best I could manage of the plumed serpent. Dry things fluid with memories.
Kip’s letters are here, too, as are some baby pictures of Ariel, and my father’s wedding ring, which Mother asked me to keep for her after he died. —Shouldn’t he be buried with it on? I asked her, when she pressed it into my palm at the funeral home.
—He’s not married to any mortal person now, Brice, and I hope one day you’ll come to understand that.
—Whatever you say, Mom, I answered, knowing that I could never bring myself to wear it. I have his wristwatch, too. It keeps perfect time, though I seldom wind it and have never worn it either.
The things are talismanic in their way. Whenever loneliness sets in, or nostalgia, or even insecurity of some kind or another, I will look at these several objects, and often I can find something that will work a little sorcery on me and make me feel the deeper rhythms or balances of my life. A metaphor for it would be a sailor in moorage who, feeling adrift, must weigh anchor every so often to make sure the cable is still firmly attached to the ring, and that shank and flukes haven’t corroded away.
For the weeks that followed this exodus from the apartment, I lived a hermit’s existence. My marquetry box held fewer talismans then, but I opened it over and over again, as if there were some answer to be found therein—which, of course, there was not.
I remembered another of my mother’s aphorisms, Never try to make crumbs into a cake, and put the box away.
Graduation exercises had come and gone. I hadn’t attended. I took the New York State bar exam in a bloodless daze. I knew the material backwards and believed I would pass, but hardly cared if it turned out otherwise. I could always try for a clerkship, I figured, and keep up with my activities against the war in some legal frame even if it meant only watching from the sidelines.
I read. And what I read darkened my already-deep depression. Masuji Ibuse’s Black Rain was published that year, and every page of its account of the life of the young woman Yasuko, who survived the bombing of Hiroshima only to be slowly poisoned by the black radioactive rains that fell on the city afterward, every page moved me. I read, “In Sorazaya-ch? at the northern end of Aioi Bridge, I saw two women seated on the ground amidst piles of broken tiles, weeping silently. They were both about twenty, and looked like sisters.” It brought to mind me and Kip, and the strangeness of Kip’s name once more being woven into these histories bothered and awed me, pika being the term survivors closest to the hypocenter used to describe the heat flash that converted their children into boiling char; a kip, then, asserting my estranged friend’s innocence, was just the opposite—a benign dark, rather than a destructive light.
When what I read didn’t make me sadder than I already was, it tended to make me more angry about what our blessed country was mixing itself up with only a quarter century later. The wars kept getting merged in my head. Napalm, orange rain. Atomic bomb, black rain. We kept showering the East with insidious rain. Ibuse’s novel mingled with my law books and legal outlines. And I was as porous as I might ever be. It soaked into me like ink into dry white cloth.
I read other materials. I read the Constitution. I don’t know why, except that maybe it was the search of one adrift for grounding—the same way some people turn to the Bible for solace, I turned to legal briefs and legislation, statutes. The Treaty of London caught my interest, and soon I was back in the Second World War again, but rather than meandering, a peculiar weave began to evidence itself to me. Was I forcing my father’s war to connect to my own? I’m not sure. Even now I don’t know whether coincidence is the result of simple luck, or whether it is brought about by someone unknowingly forcing two elements to come together as if by means of a kind of spiritual gravity. I drank water from the tap, I ate scrambled eggs and fried cottage cheese and the occasional raw carrot. What is there to do in solitude but read, dream, doubt, drink water, and eat the occasional carrot?
During the trials in Nuremberg, after the conclusion of the Second War, the United States prosecutor Justice Jackson set forth a simple tenet regarding equity in the making of rules of conduct between states. He said, “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” In other words, what’s sauce for the goose, and so forth. Given the circumstances, his impulse to invoke decency and fairness was admirable. Victors are not always so principled. I copied the sentence out onto a sheet of good paper and it went up on my door beside the newspaper photograph of the burning monk.
It was prophetic, in its way. The Treaty of London would be ratified in August 1945, making all “wars of aggression” illegal. I doubt our fathers, when hammering out the details of the treaty and solemnly affixing their names to it, could ever have foreseen how it would come back to haunt them. But it did, and in no time at all. Only a generation later the words war of aggression became a buzz phrase of the sixties antiwar movement. In our commendable labors to make sure that the War might never be repeated, we established doctrine that we ourselves could not—could never—hold to, so that the very articles of treaty we held in such high regard in the wake of the collapse of Germany and Ja
pan cast a longer shadow than we’d expected, and sank our clay feet in deep, dark shade by the time Kip and I came of age. Who is angel enough not to be fond now and then of a righteous bitter irony? Mine may have been black laughter, but laughter is laughter.
Soon after I’d entered my first year of law school, I had read through some of the testimony and decisions made in Nuremberg, not just because that war tugged at me—our final nuclear acts were, to my mind, crimes against humanity sufficiently heinous as to have merited prosecution no less severe than that to which the Germans were subjected—but because I had begun following cases of citizens who for legal reasons refused to participate in Vietnam, and I came upon Mitchell v. the United States. It was a wonderful case. Mitchell would lose as a defendant, then again as an appellant in the second circuit court, and finally see his case thrown out in March 1967 by the Supreme Court, which avoided dealing with the material problems raised in the defense by finding Mitchell’s claim injusticiable. I thought, Hey, wait a minute—the Supreme Court can’t just walk away from this without so much as offering an opinion. But they did. Only Justice William O. Douglas dissented, and in his dissent raised, to my mind, the touchiest legal issues surrounding all such cases. In a way, his dissent was Mitchell’s triumph because it opened up the eyes of some of us who came along a few years later to challenge the war in the same courts a little more efficiently. Though most of our suits fared no better, the executive branch and Congress surely began to feel the heat from all this litigious activity. And Justice Douglas, pressed by that final appeal, did connect for me some of the immoralities of my father’s war to my own.
It seems David Mitchell was called up for duty but refused to report for induction. He would have nothing to do with the selective service system because it was his contention that the war in Vietnam was being conducted in violation of various treaties to which the United States is signatory—primarily the Treaty of London, in which an individual is not exempted from responsibility for participating in a war of aggression just because he was ordered to do so. Just as the claim made by German officers in Nuremberg that they were following orders was insupportable, so the American soldier is responsible for his decisions in battle because, no matter what, a person is always accountable for immoral, unethical, criminal acts, war or no war, orders or no orders. If a war is waged in a manner considered unlawful by the community of nations, the individual caught in its mesh cannot later say, I was just following orders. A soldier is still possessed of reason and is obligated to use it. Such was the argument.
The more I read, the more I began to admire this guy Mitchell. He was impenitent, an absolutist, resolute and cocky as hell. There was an Old Testament stubbornness to his approach that awed me. It was true that he registered with his local selective service board back in 1964, but when he started to inform himself about our doings in Vietnam, he took a stand. He didn’t run and he didn’t lie. He sought no relief in any of the various administrative remedies the service is empowered to grant, such as community work. He didn’t make a claim to be a conscientious objector. He didn’t flee across the border into Canada. He acknowledged receipt of the notice that ordered him to report for induction on January 11, 1965—didn’t burn his draft card, didn’t allege that it got lost in the mail like others did—but simply refused to report as ordered. That was that. His was civil disobedience of the purest kind, I began to believe. He would not do what he was told to do because, he held, to do so would be to defy the laws of the land. With the spunk of a born contrarian, he sought nothing less than a declaration in court that the selective service immediately cease to function, making—under his lawyers’ aegis—a pretty good argument against the legality of its existence in the first place.
The reasoning went as follows. One, the Constitution avows—Article 6, clause 22—that treaties our government makes with other nations are a part of “the supreme law of the land, and that Judges in every State shall be bound by them.” Two, the Treaty of London is a treaty within the meaning of said article in the Constitution. Three, the conflict in Vietnam is a “war of aggression” in the sense defined by the Treaty of London. Four, our waging of a war of aggression in Vietnam violates that treaty and therefore makes that war illegal. And, five, a citizen bound to act according to the supreme law of the land cannot rightfully participate in the Vietnam war. So that, six, as a law-abiding citizen of the United States of America, and an individual responsible for the morality and lawfulness of his conduct, he was obliged to decline the selective service system’s invitation he report for active duty. This was insolence in a class of its own, was brass-balls reasoning, and I admired him for it.
The only problem with brass balls, however, is that they lack the capacity to produce semen. Nothing, unfortunately, came of all this. It was a shame. The court of appeals affirmed the original trial court decision. In March 1967 the Supreme Court denied him his petition for writ of certiorari and tossed the case. I wondered whether Mitchell was aware of the futility of his honest approach. I also began to wonder whether it wasn’t the courts that were becoming the ultimate dodgers of the draft issue. It seemed unconscionable that they would refuse to consider this case. At least find him guilty and offer a written decision.
But, as I say, in his dissent, Justice Douglas touched upon points that would shape me as a man and, soon enough, as fledgling lawyer. By late 1969, for better or worse, this was what I was—almost. The exam had been passed but the conduct committee decided to hold up my final admission to the bar while they reviewed my arrest record, and weighed whether or not my behavior as an activist would jeopardize my ability to protect and defend the Constitution and the laws of this land. Hearings were scheduled, took place, and then months would go by with no word until I’d receive a letter to inform me that another hearing would have to be arranged so that the committee could cover some points that had not been addressed during the last hearing. Et cetera, et cetera: I knew I was being punished, and guessed that eventually they would have to grant me admission. In the meantime, while they were making up their minds whether or not to admit me, about whether my conduct would or would not bring shame onto their lousy association, I had taken work with a lawyer who was an active member of the ACLU, and whose practice was an ideal model for what my own would be: devoted to civil liberty cases, and vis-à-vis the war, dedicated to getting protestors out of jail, not to mention out of prison, to filing discrimination suits against my alma mater, to acting as legal counsel to any members of the antiwar movement who needed such help. My sham discharge from service in my pocket, I set forth to assist anyone who had acted similarly, burned a draft card, needed the telephone number of a psychiatrist who opposed the war and would produce an evaluation—after a battery of tests and a session—that spoke of a suicidal disposition or homosexual tendencies, who in other words would create a written deceit that would cause the recruiter to deny the subject admission into the military.
Months grinding along, the deepness of my depression got silted in, slowly. The country was caught in its own agony, and given I’d chosen which side I was on in the general argument, the work for me to do enlivened me again, despite myself.
Jess would call and I didn’t know which was worse: the pleasure that came from talking with her, or the melancholy that blanketed me afterwards.
—How’s it going with your parents?
—Sometimes fair, sometimes not.
—Why don’t you come back?
—I will, she’d say.
—Great, I would answer. —When?
—I’m not sure.
—Well, you have this place, you know, and it’s yours.
—I know, she would say in a voice so low I could hardly hear her.
And then I would say, —Well, in as cheerful a voice as I could manage, and she’d say, —I assume they haven’t let you in yet or I’d have heard about it.
—You assume right.
—How’s the work going?
—Nonremunerative an
d labor intensive. Kind of the perfect thing for me right now, I guess.
—You eating anything?
—Fingernails and carrots.
Which would make her laugh the laugh I loved best from Jessica. It was immersed down in her, and then almost against some demure will, just rose into the air, just like that, innocent and really exuberant. It was her best laugh, the kind that would make me laugh right back. Jessica is your friend, I’d think, when we did hang up. And I’d begin to think of reasons to call her later that same day, or early the next.
I heard the word inexpiable used in court on the afternoon of our birthday—mine and Kip’s. It is one of those terms my father would call a five-cent dime. It means unforgivable. Would I ever be able to forgive Kip for doing what he’d done? would he be able to forgive me for what I intended to do? Then Jessica called me that night to wish me a happy birthday, and I asked her once more, —When are you coming home? and when she said, —What about tomorrow? I said, without missing a beat, —Tomorrow would be just fine. And though she didn’t return on the next day, it was the beginning of her coming home to me.
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