I must admit that when Ken Burns's and Lynn Novick's Vietnam series started, I was not eager to watch it. Two or three years ago--I am not sure which--I had heard about the series by accident, and I had called Burns's office in hopes of taking part in it. I was summarily informed that the series was already in post production, and that was that. I was frustrated by the first two episodes, which covered things I had researched and written about myself, with some significant gaps. But after the major American involvement began in 1965, I changed my mind. To begin with, Burns had used almost no historians at all on camera and very few, apparently, in preparing the script. I had no reason to take my own exclusion personally. But more importantly, Burns had decided to present the war almost entirely from the perspective of combatants and their families on all sides--American, North Vietnamese, and South Vietnamese. That he had done superbly, and I was very grateful for it. I think it is probably the best film that he has produced.
The single best thing about the series, for me, was its portrayal of combat. Burns combined interviews with participants in battle--again, on all sides--with extraordinary footage. At times I wondered, and I still don't know, if the footage really was footage of the exact day and place the veterans were talking about, but it certainly looked as if it might have been. And in his battlefield episodes Burns demolished one of the enduring myths of the war: that the United States never lost a battle Several of the battles that veterans described in excruciating detail fit the classic pattern of Vietnam combat. An American unit--generally anything from a company to a battalion--patrolling in the jungle or the highlands, walked into a VC or North Vietnamese ambush. The Communist forces tried not to open fire until the Americans were just a few yards away. This tactic, to "grab them by the belts," meant that the US forces would not be able to call in their devastating artillery or air support during the battle for fear of hitting their own men. For hours, North Vietnamese and US forces would exchange rifle and machine gun fire and grenades, inflicting heavy casualties. Many American companies suffered losses large enough to put them out of action as effective fighting forces in these firefights. The North Vietnamese, of course, wanted to continue these encounters until US casualties had become so high that the American people would insist on de-escalating, and, eventually, quitting the war. In the end, the turning point came at Hamburger Hill, in May 1969--one of so many battles that fit that pattern, and which forced the US to try to avoid many more of them. That battle, coincidentally, took place nearly at the very moment when American forces in South Vietnam had reached their highest point.
Burns not only decided not to use historians, but he also decided not to use anyone, really, who had become famous during the Vietnam era. The highest-level civilians he interviews are Leslie Gelb, one of the authors of the Pentagon papers, and John Negroponte, who was then a junior diplomat at the Paris peace talks. He did not interview Henry Kissinger, or Daniel Ellsberg, or John McCain (who is seen in an interview in a hospital bed shortly after his capture.) Nor did he interview James Webb or Ron Kovic, two activist veterans with opposing views of the war and its lessons. But I thought the ordinary veterans he selected gave a fine portrait of my own Boom generation as it was then. Many joined out of idealism, and we forget how many of us (like me) fully supported the rationale behind the war when it began in earnest in 1965. The treatment of changes on campus during those years was also excellent.
Burns did what he can do, very well. I have done something very different throughout my career--reading, researching and studying to understand the decisions US leaders took to intervene, fight, and withdraw, and why they were not successful. I would like to make a few points that Burns did not address, or where he contributed to longstanding misconceptions.
The first concerns the role of the Eisenhower Administration, on the one hand, and the Kennedy Administration, on the other, in involving, or not involving, the United States in wr in Southeast Asia. Eisenhower in 1954 refused the entreaties of his Secretary of State, John Foster Dulles, to intervene actively on the side of the French. But in subsequent years, I found researching American Tragedy, his administration laid down policies calling for American intervention to stop Communist aggression in Laos, Cambodia, or South Vietnam--using nuclear weapons as necessary, and accepting the risk of all-out war with China. And indeed, in late 1960, a civil war in Laos, which the American-backed forces were losing, brought the Eisenhower Administration to the brink of carrying out those policies before Ike left office and dumped the situation in JFK's lap. Burns said almost nothing about any of this.
That, in turn, leads to the aspect of JFK's policies that I and other historians have highlighted, but which Burns did not really explore. From the moment that Kennedy took office through early November 1961, he was besieged with a series of proposals for full-scale American intervention, including large ground forces, in Laos, in South Vietnam, or in both countries. Virtually all his senior advisers--Secretary of State Dean Rusk, Secretary of Defense Robert McNamara, National Security Adviser McGeorge Bundy, Bundy's deputy Walt Rostow, and most of the Joint Chiefs--pushed for intervention. Kennedy repeatedly rejected it. In the last meeting in which he did so he laid out a series of excellent reasons why war in South Vietnam would be a dreadful mistake: that the war would be hard to explain to the American people, that the Saigon government had not managed to handle the insurgency, and that we would not be supported by major allies. He also abandoned the civil war in Laos in favor of a negotiated settlement, which he eventually achieved. He did all this, in part, because he had a wide-ranging diplomatic agenda aimed at easing tensions in the Cold War, which war in Southeast Asia would not help. His successor had no such agenda.
I also found fault with Burns's treatment of Lyndon Johnson in 1964-5. He made extensive use of Johnson's phone conversations, which often show the President agonizing over what to do in Southeast Asia. I too was fooled, initially, when I heard some of those. But gradually I realized that while Johnson loved to agonize, he had never seriously considered any alternative to fighting a war to try to save South Vietnam from the Communists. His plan to do so was clear as early as March 1964, although he was determined to wait until after the election. More seriously, Burns, like so many historians, gave the misleading impression that Johnson first decided on sustained bombing of North Vietnam in early March 1965, and then was gradually pushed into a ground commitment. In fact, Johnson in December 1964 approved a planning paper that linked the anticipated bombing of the North to "appropriate deployments to handle any contingency." In the late 1990s I got the appendices to that document declassified, and they showed a specific plan to deploy hundreds of aircraft and hundreds of thousands of troops to Southeast Asia, beginning with the Marines who landed in Da Nang the week the bombing of the North began. Subsequent events followed that timetable quite closely, although plans to send forces ot Thailand were dropped, and those troops wound up in South Vietnam instead. There was only one decision to fight a huge war in Southeast Asia, and it was taken in December 1964.
Burns also failed ever to identify the real issue in the peace talks that began in 1968: the issue of who would rule South Vietnam, and what would happen to it in the long run. The Geneva Agreements of 1954 that ended the French war had recognized the "unity, sovereignty and territorial integrity" of Vietnam, and for the next 18 years the US had struggled to establish, and define, South Vietnam as a separate and independent nation. Beginning in 1965, North Vietnam had demanded not immediate reunification, but the establishment of a coalition government in the South and the withdrawal of American troops, leaving that new government to negotiate eventual reunification. Not until the fall of 1972 did the Nixon Administration abandon its position. It did not agree to a coalition government, but the agreement it signed put the Viet Cong on a footing of equality with the South Vietnamese government and directed the two parties to work out new political arrangements. It also, of course--as Burns did show--allowed North Vietnamese troops to remain in South Vietnam. To his credit, Burns gave almost no support to the idea that the South might have remained independent if the US had simply given it more aid.
Over the course of the 18-hour broadcast, viewers got to know Burns's select group of US veterans (and similar groups of North and South Vietnamese) very well. The last hour or so on the aftermath, featured the controversy over the Vietnam Memorial--and their own visits to it. Many of them cried as they described them, and I found myself crying as well. I return again to the theme I struck at the end of American Tragedy. The war marked the end of an heroic era in American history, and set off a process of political disintegration that is still continuing. We live with it to this day.
Friday, October 06, 2017
Friday, September 29, 2017
The New Nature of Politics
The agenda of the Trump Administration and the Republican Congress is rather confusing but in recent weeks a light has dawned, for me at least, revealing to me what is really going on in Washington. I owe my new insights (if such they are) largely to Jane Mayer and her book Dark Money, which I reviewed here some weeks ago. That book, I am discovering, has not had nearly the impact that it should have. I just gave a talk on the current crisis to about 30 students and faculty at the LBJ School of Public Affairs at the University of Texas, and a show of hands revealed that not one audience member had read it. Neither had a reporter for a major newspaper whom I called to discuss a story about one piece of the network that Dark Money described. But I have kept the picture it drew of the influence of the Koch brothers and their allies in the Bradley, Scaife, Olin and other foundations in mind, and Jane Mayer herself pointed out an important story in the Guardian about what they have been up to lately. Here are my conclusions.
This past week, the Senate and House Republicans finally had to abandon their last attempt to repeal and replace Obamacare. The alternative put forward by Senator Lindsay Graham and three others was the most radical yet, eliminating mandates, subsides, and mandatory protection for those with pre-existing conditions, capping medicaid, and putting a major hurt on blue states while helping red ones. The mainstream media was initially amazed by the emergence of this new bill, since the earlier iterations had proven so unpopular with the medical establishment and the public. It explained this as an appeal to the "Republican base." So it is, I think--but only if one gives up the idea that the Republican base is composed of voters. It isn't--it's composed of billionaire contributors, led by the Kochs, who have discovered ways to put their agenda through without reference to the voters. They control today's Republican Party as completely as the steel industries and railroads controlled our politics in the late 19th century, because they can fund any campaign that they want.
Al Franken, I believe, has commented that only half the Republicans in Congress hold views similar to Michelle Bachmann's, but the other half are terrified to losing their next primary to another Michelle Bachmann. In recent elections Tea Party candidates have repeatedly toppled establishment Republicans, including long-time officeholders like Richard Lugar of Indiana. The Kochs periodically hold donor retreats to meet with Republican officeholders, and last June, the Guardian reported, their representative warned Republicans that campaign contributions would dry up unless they passed Obamacare repeal and tax reform this year. That, presumably, is why the latest and worst health care bill arose like a Phoenix during September. The real question, about which I have seen nothing, is where and by whom the bill was drafted. I would bet a good deal of money that intellectuals within the right-wing donor network did it first and found the sponsors later. Graham is smart enough to know the bill would be very unpopular, and Charles Grassley of Iowa has been quoted admitting that it is a bad bill. Yet the Republicans felt they had no choice but to cave in to their financial, as oppposed to their electoral, base. So many of them live in one-party states or gerrymandered districts that they have no reason to think about what Democratic voters think, but remain vulnerable to the votes of tea party activists (themselves part of the Koch network) in primaries.
The tax reform proposal unveiled this week is probably part of the same story. It will eliminated the inheritance tax, which is significant only for multi-millionaires like the Kochs. It will protect the low rates of many in the financial community thanks to "pass throughs." And by eliminating state and local tax deductions, it will increase taxes on residents of blue states that have significant income taxes. The network that is producing these plans is obviously pursuing a conscious strategy of regional war. And it is powerful enough to have induced Republican "deficit hawks" to swallow a bill that will add an estimated $200 billion a year to the federal deficit.
This week we are learning that the new division in the Republican party isn't between radicals and moderates, it's between two rival groups of mega-donors. Robert Mercer and his daughter Rebekah, the patrons of Breitbart News and Steve Bannon, were the chief contributors to Judge Ray Moore, who just won the Republican nomination (and therefore, surely, the election) for Jeff Session's Senate seat in Alabama over the Trump-backed establishment candidate. Today's New York Times indicates that the Mercer network plans to run many Republican primary candidates next year. The Koch brothers' model of using their billions to field candidates, subsidize media outlets and maintain a retinue of friendly intellectuals is being adapted by other millionaires. One or two liberal billionaires have even tried it in recent years, but without much success. In Republican states--and most states are now Republican--such networks can effectively take any meaningful choice away from the mass of the voters.
Donald Trump is not a significant player in the policy battles now taking place, except insofar as he can be relied upon to deny the obvious--claiming, for instance, that his tax plan does not help the rich--and sign conservative legislation. He and Mike Pence have handed environmental regulation and educational policies over to allies and members of the ultraconservative donor network. They have also formed an alliance on social issues with the religious right. Their economic proposals, I believe, are coming from outside the Administration. If the anti-Trump media really want to make a contribution to our national life they should uncover where the drafts of the health care and tax bills are coming from, and how they will benefit certain specific people. The Democrats need to speak up on behalf of the whole people. For the time being, robust democracy is a thing of the past, a victim of the tax policies and conservative activism of the last 40 years. To learn more, go to your public library or bookstore and get your hands on Dark Money.
This past week, the Senate and House Republicans finally had to abandon their last attempt to repeal and replace Obamacare. The alternative put forward by Senator Lindsay Graham and three others was the most radical yet, eliminating mandates, subsides, and mandatory protection for those with pre-existing conditions, capping medicaid, and putting a major hurt on blue states while helping red ones. The mainstream media was initially amazed by the emergence of this new bill, since the earlier iterations had proven so unpopular with the medical establishment and the public. It explained this as an appeal to the "Republican base." So it is, I think--but only if one gives up the idea that the Republican base is composed of voters. It isn't--it's composed of billionaire contributors, led by the Kochs, who have discovered ways to put their agenda through without reference to the voters. They control today's Republican Party as completely as the steel industries and railroads controlled our politics in the late 19th century, because they can fund any campaign that they want.
Al Franken, I believe, has commented that only half the Republicans in Congress hold views similar to Michelle Bachmann's, but the other half are terrified to losing their next primary to another Michelle Bachmann. In recent elections Tea Party candidates have repeatedly toppled establishment Republicans, including long-time officeholders like Richard Lugar of Indiana. The Kochs periodically hold donor retreats to meet with Republican officeholders, and last June, the Guardian reported, their representative warned Republicans that campaign contributions would dry up unless they passed Obamacare repeal and tax reform this year. That, presumably, is why the latest and worst health care bill arose like a Phoenix during September. The real question, about which I have seen nothing, is where and by whom the bill was drafted. I would bet a good deal of money that intellectuals within the right-wing donor network did it first and found the sponsors later. Graham is smart enough to know the bill would be very unpopular, and Charles Grassley of Iowa has been quoted admitting that it is a bad bill. Yet the Republicans felt they had no choice but to cave in to their financial, as oppposed to their electoral, base. So many of them live in one-party states or gerrymandered districts that they have no reason to think about what Democratic voters think, but remain vulnerable to the votes of tea party activists (themselves part of the Koch network) in primaries.
The tax reform proposal unveiled this week is probably part of the same story. It will eliminated the inheritance tax, which is significant only for multi-millionaires like the Kochs. It will protect the low rates of many in the financial community thanks to "pass throughs." And by eliminating state and local tax deductions, it will increase taxes on residents of blue states that have significant income taxes. The network that is producing these plans is obviously pursuing a conscious strategy of regional war. And it is powerful enough to have induced Republican "deficit hawks" to swallow a bill that will add an estimated $200 billion a year to the federal deficit.
This week we are learning that the new division in the Republican party isn't between radicals and moderates, it's between two rival groups of mega-donors. Robert Mercer and his daughter Rebekah, the patrons of Breitbart News and Steve Bannon, were the chief contributors to Judge Ray Moore, who just won the Republican nomination (and therefore, surely, the election) for Jeff Session's Senate seat in Alabama over the Trump-backed establishment candidate. Today's New York Times indicates that the Mercer network plans to run many Republican primary candidates next year. The Koch brothers' model of using their billions to field candidates, subsidize media outlets and maintain a retinue of friendly intellectuals is being adapted by other millionaires. One or two liberal billionaires have even tried it in recent years, but without much success. In Republican states--and most states are now Republican--such networks can effectively take any meaningful choice away from the mass of the voters.
Donald Trump is not a significant player in the policy battles now taking place, except insofar as he can be relied upon to deny the obvious--claiming, for instance, that his tax plan does not help the rich--and sign conservative legislation. He and Mike Pence have handed environmental regulation and educational policies over to allies and members of the ultraconservative donor network. They have also formed an alliance on social issues with the religious right. Their economic proposals, I believe, are coming from outside the Administration. If the anti-Trump media really want to make a contribution to our national life they should uncover where the drafts of the health care and tax bills are coming from, and how they will benefit certain specific people. The Democrats need to speak up on behalf of the whole people. For the time being, robust democracy is a thing of the past, a victim of the tax policies and conservative activism of the last 40 years. To learn more, go to your public library or bookstore and get your hands on Dark Money.
Thursday, September 21, 2017
Friday, September 15, 2017
What's happening on campus
Last week I know I raised some eyebrows when I suggested that Betsy DeVos and the Education Department might do some good by changing the Obama Administration's Title IX guidelines for university handling of sexual harassment charges on campus. I based that comment largely on a remarkable book I had read a couple of months back, Unwanted Advances, by Laura Kipnis, a professor of media studies at Northwestern University.
To make the long story of how the book came to be written rather short, Kipnis became interested the case of a colleague (broadly defined) or hers, a philosophy professor named Peter Ludlow, who had lost his job an his livelihood thanks to accusations by an undergraduate whom Kipnis chooses to refer to pseudonymously as Eunice Cho, and a graduate student she calls Nola Hartley. Cho, who was only a freshman at the time she got to know Ludlow, never accused him of having sex with her, although she claimed he had spooned against her while they spent one night in hsi apartment after they had been out having drinks together. Hartley on the other had had a substantial and very well-documented relationship (this is the age of texts) with Ludlow, obviously based upon mutual affection, but had subsequently decided that he had used his power as a professor (even though he was not her professor at the time) to coerce her into the relationship. What evidently struck Kipnis, a younger baby boomer who is now about 60, was that both cases were based on an idea she had learned to reject in her youth: the idea that women of 18 or older were fully capable of making, and living with, their own decisions about whom to have sex with. Kipnis, a heterosexual herself, has continued to take advantage of that freedom all her life, she lets us know, and even admits to occasionally having had sex with students. She wrote an article making this argument for the Chronicle of Higher Education, and was soon informed that she was the subject of a Title IX complaint brought by some women at Northwestern who accused her of creating an unfriendly environment. Rather than back down, she got more deeply involved in the whole subject. Meanwhile, university officials had found Ludlow guilty of sexual assault and ended his career.
Kipnis discusses the two accusations and how they were adjudicated at great length with the help of the files on the investigation that Ludlow gave her. I will confine myself to some observations of my own. The most important thing to understand about the new campus doctrine and procedures, in my opinion, is that they are totally contrary to Anglo-American legal traditions as they have evolved at least since Magna Carta in 1215. To begin with, there is no presumption of innocence for men accused of sexual harassment. The women who bring accusations are routinely referred to not as accusers, but as survivors, implying that the question of whether a crime took place has already been resolved. That is connected to a second principle of the new procedures: the survivors, not impartial third parties, decide whether a crime has been committed, based on their own feelings. That is how Hartley, the grad student, could get a finding against Ludlow despite reams of texts showing that she had been not only a consensual but a very enthusiastic and lovestruck participant in their relationship. She had subsequently decided that his superior power had coerced her (without the slightest indication that he had tried in any way to use it to force her into bed), and that was that. That in turn leads us to the whole question of reasonable doubt, one of the standards of proof that the Obama Administration told colleges not to use in sexual assault cases.
When sexual assault activists are asked why colleges cannot simply leave criminal accusations to the criminal justice system, they routinely reply that survivors (that is, accusers) do not want to undergo the ordeal that would result, and that it is very difficult to get convictions there. That is true, and there are two reasons for it. The first is that much of what constitutes "sexual assault" on campus today, such as simple unwanted touching with clothes on, isn't illegal at all. But the second is that our criminal justice system requires proof beyond a reasonable doubt, which by definition is most unlikely to be available in what is referred to as a "he said, she said" situation. When the accused tells one story and the accuser another, and there is no very damning evidence ot undermine the credibility of either one, there is very little basis for a jury to conclude beyond a reasonable doubt that one of them is telling the truth. That in turn requires them to find the accused innocent. That, for many sexual assault activists, is an unacceptable outcome.
The nature of the argument we are having is confirmed by an op-ed and a letter in the New York Times of Monday, September 18. The op-ed by two grad students in sociology protests possible changes in the Department of Education's sexual assault policy. The article by Miriam Bleckman-Krut and Nicole Bedera begins as follows: "Who should have the right to define rape: survivors who have experienced sexual violence or those who are accused of perpetrating it?" Later, they add that "accused men's pain does not excuse rape, and men shouldn't be the ones defining it." We have never had a criminal justice system, as it happens, in which either the accused or the accuser gets to decide the case. The question of whether a crime has been committed has always been the province of third parties, chosen to be as impartial as possible--that is, judges and juries. A letter to the editor from an attorney, Marian E. Lindberg, makes the same argument: "Whether one agrees with a preponderance-of-evidence standard turns largely on whether one thinks that women are more likely to lie about sexual abuse, or men more likely to lie about consent." Our whole legal system--which, to be sure, has never functioned perfectly--is designed to substitute the impartial judgment of third parties of the facts of a particular case for blanket rules such as "believe the woman."
The Obama administration advised campuses not only to ignore presumption of evidence, but also to discard another standard, one of "clear and convincing" evidence that charges were true. Instead they ordered them to make judgments based on the "preponderance of evidence," the standard used in a civil suit. Even that standard, obviously, isn't much help when the evidence consists of opposing statements by an accuser and the accused--unless one decides that in these situations, women are inherently more credible than men. The files Kipnis quotes show that the college bureaucrats charged with investigating these cases and the lawyers whom colleges often hire to investigate them routinely believe the accuser and disbelieve the accused. And they do this, often, because of preconceived notions of how men and women do, and do not act. Here an analogy is in order. Kipnis does refer frequently to witch trials, but she never mentions what is to me a much more apt analogy: the Stalinist justice of the 1930s and 1940s and Mao's justice during the cultural revolution. In those days, any class enemy was automatically guilty of any accusation against him and her, by virtue of who he or she was, regardless of the specifics of what they had done, or not done. Indeed, justice in those regimes wasn't even supposed to be impartial: it was a front in the class struggle. Now unfortunately, for at least three decades, university humanities have been teaching that the history of mankind is the history of the oppression, by white males, of everyone else. Thus, when Cho (whose credibility on many points was shredded by cross-examination) said that she had spent the night with Hartley spooning, while he said that he had put a pillow between them, the administrator simply decided to believe Cho and find him guilty.
It occurred to me, as it didn't to Kipnis, that the practice of hiring attorneys to conduct investigations and report their findings, upon which the university then acts, has another huge problem, which is also related to how our judicial system really works. Attorneys are not trained to investigate situations impartially; they are trained to represent the interests of their clients, and they instinctively slant every fact in favor of their client. In these cases they seem to wind up representing the accuser. I raised this point with a very experienced attorney of my acquaintance. He agreed with me, but he added that there were two kinds of attorneys, mediators and arbitrators, who are accustomed to listening to both sides of the question, and who would do a better job. Mediators and arbitrators, however, use impartial procedures--the only reason anyone would hire them--and colleges and universities, threatened with the loss of federal funds under title IX, aren't interested, clearly, in impartial procedures that respect traditional principles of American justice.
Late in the book, Kipnis makes another critically important point about sexual assault on campus. Many complaints, of course, involve situations in which both parties have consumed large amounts of alcohol. Campus officials now argue routinely that no one can really consent to sex when under teh influence of alcohol (how much alcohol is required to deprive one of that power, I do not know), and therefore, sex with an inebriated woman is rape. Leaving aside the question of whether this really makes any legal sense, what Kipnis argues--and she is clearly right--is that such rules criminalize what has become normal behavior on many campuses. It is very clear that both young men and young women to go parties to get more or less drunk and "hook up." They know they are going to drink, and that they may have sex, when they arrive. But the adults who claim to supervise their lives have declared this behavior to be criminal--but only for the man, in a heterosexual encounter at least. I do not think this is a healthy situation for anyone concerned. For the record, if I had a daughter (which I never have), I would tell her in no uncertain terms never to get drunk with anyone she did not trust.
It is something of a miracle that Kipnis's book was ever written. The sex crimes bureaucracies on campus, she makes clear, also try to impose a high degree of secrecy on their proceedings, try to prevent the accused from keeping thorough records of them (for instance, by recording hearings or bringing attorneys with them), and say very little, normally, about how decisions were reached. Publicity worked for Kipnis. Her acocunt of her own case suggests to me that the Northwestern hierarchy realized that it could do a lot of harm, and she was found innocent of creating a hostile environment rather quickly after she became nationally known. Others, however, might not be so lucky. There is not the slightest doubt that if I were still teaching on campus, this blog post could easily be cited by any member of the university as an actionable attempt to create an unfriendly environment.
I had planned this post for some time, but this morning I was delighted to find that I am not alone. The Boston Globe, whose coverage of campus sexual assault usually reflects the new orthodoxy, included a long story this very morning quoting a large number of liberals, many of them women, who, like me, believe that the Education Department does indeed have to reform its title IX guidelines. I hope that readers here will be able to break through the firewall. It's a good story, and it suggests that, thank heaven, reverence for our legal traditions is, even now, far from dead. We still need a two-party system to remedy the excesses of both sides. This is one case where, even now, this might work.
.
To make the long story of how the book came to be written rather short, Kipnis became interested the case of a colleague (broadly defined) or hers, a philosophy professor named Peter Ludlow, who had lost his job an his livelihood thanks to accusations by an undergraduate whom Kipnis chooses to refer to pseudonymously as Eunice Cho, and a graduate student she calls Nola Hartley. Cho, who was only a freshman at the time she got to know Ludlow, never accused him of having sex with her, although she claimed he had spooned against her while they spent one night in hsi apartment after they had been out having drinks together. Hartley on the other had had a substantial and very well-documented relationship (this is the age of texts) with Ludlow, obviously based upon mutual affection, but had subsequently decided that he had used his power as a professor (even though he was not her professor at the time) to coerce her into the relationship. What evidently struck Kipnis, a younger baby boomer who is now about 60, was that both cases were based on an idea she had learned to reject in her youth: the idea that women of 18 or older were fully capable of making, and living with, their own decisions about whom to have sex with. Kipnis, a heterosexual herself, has continued to take advantage of that freedom all her life, she lets us know, and even admits to occasionally having had sex with students. She wrote an article making this argument for the Chronicle of Higher Education, and was soon informed that she was the subject of a Title IX complaint brought by some women at Northwestern who accused her of creating an unfriendly environment. Rather than back down, she got more deeply involved in the whole subject. Meanwhile, university officials had found Ludlow guilty of sexual assault and ended his career.
Kipnis discusses the two accusations and how they were adjudicated at great length with the help of the files on the investigation that Ludlow gave her. I will confine myself to some observations of my own. The most important thing to understand about the new campus doctrine and procedures, in my opinion, is that they are totally contrary to Anglo-American legal traditions as they have evolved at least since Magna Carta in 1215. To begin with, there is no presumption of innocence for men accused of sexual harassment. The women who bring accusations are routinely referred to not as accusers, but as survivors, implying that the question of whether a crime took place has already been resolved. That is connected to a second principle of the new procedures: the survivors, not impartial third parties, decide whether a crime has been committed, based on their own feelings. That is how Hartley, the grad student, could get a finding against Ludlow despite reams of texts showing that she had been not only a consensual but a very enthusiastic and lovestruck participant in their relationship. She had subsequently decided that his superior power had coerced her (without the slightest indication that he had tried in any way to use it to force her into bed), and that was that. That in turn leads us to the whole question of reasonable doubt, one of the standards of proof that the Obama Administration told colleges not to use in sexual assault cases.
When sexual assault activists are asked why colleges cannot simply leave criminal accusations to the criminal justice system, they routinely reply that survivors (that is, accusers) do not want to undergo the ordeal that would result, and that it is very difficult to get convictions there. That is true, and there are two reasons for it. The first is that much of what constitutes "sexual assault" on campus today, such as simple unwanted touching with clothes on, isn't illegal at all. But the second is that our criminal justice system requires proof beyond a reasonable doubt, which by definition is most unlikely to be available in what is referred to as a "he said, she said" situation. When the accused tells one story and the accuser another, and there is no very damning evidence ot undermine the credibility of either one, there is very little basis for a jury to conclude beyond a reasonable doubt that one of them is telling the truth. That in turn requires them to find the accused innocent. That, for many sexual assault activists, is an unacceptable outcome.
The nature of the argument we are having is confirmed by an op-ed and a letter in the New York Times of Monday, September 18. The op-ed by two grad students in sociology protests possible changes in the Department of Education's sexual assault policy. The article by Miriam Bleckman-Krut and Nicole Bedera begins as follows: "Who should have the right to define rape: survivors who have experienced sexual violence or those who are accused of perpetrating it?" Later, they add that "accused men's pain does not excuse rape, and men shouldn't be the ones defining it." We have never had a criminal justice system, as it happens, in which either the accused or the accuser gets to decide the case. The question of whether a crime has been committed has always been the province of third parties, chosen to be as impartial as possible--that is, judges and juries. A letter to the editor from an attorney, Marian E. Lindberg, makes the same argument: "Whether one agrees with a preponderance-of-evidence standard turns largely on whether one thinks that women are more likely to lie about sexual abuse, or men more likely to lie about consent." Our whole legal system--which, to be sure, has never functioned perfectly--is designed to substitute the impartial judgment of third parties of the facts of a particular case for blanket rules such as "believe the woman."
The Obama administration advised campuses not only to ignore presumption of evidence, but also to discard another standard, one of "clear and convincing" evidence that charges were true. Instead they ordered them to make judgments based on the "preponderance of evidence," the standard used in a civil suit. Even that standard, obviously, isn't much help when the evidence consists of opposing statements by an accuser and the accused--unless one decides that in these situations, women are inherently more credible than men. The files Kipnis quotes show that the college bureaucrats charged with investigating these cases and the lawyers whom colleges often hire to investigate them routinely believe the accuser and disbelieve the accused. And they do this, often, because of preconceived notions of how men and women do, and do not act. Here an analogy is in order. Kipnis does refer frequently to witch trials, but she never mentions what is to me a much more apt analogy: the Stalinist justice of the 1930s and 1940s and Mao's justice during the cultural revolution. In those days, any class enemy was automatically guilty of any accusation against him and her, by virtue of who he or she was, regardless of the specifics of what they had done, or not done. Indeed, justice in those regimes wasn't even supposed to be impartial: it was a front in the class struggle. Now unfortunately, for at least three decades, university humanities have been teaching that the history of mankind is the history of the oppression, by white males, of everyone else. Thus, when Cho (whose credibility on many points was shredded by cross-examination) said that she had spent the night with Hartley spooning, while he said that he had put a pillow between them, the administrator simply decided to believe Cho and find him guilty.
It occurred to me, as it didn't to Kipnis, that the practice of hiring attorneys to conduct investigations and report their findings, upon which the university then acts, has another huge problem, which is also related to how our judicial system really works. Attorneys are not trained to investigate situations impartially; they are trained to represent the interests of their clients, and they instinctively slant every fact in favor of their client. In these cases they seem to wind up representing the accuser. I raised this point with a very experienced attorney of my acquaintance. He agreed with me, but he added that there were two kinds of attorneys, mediators and arbitrators, who are accustomed to listening to both sides of the question, and who would do a better job. Mediators and arbitrators, however, use impartial procedures--the only reason anyone would hire them--and colleges and universities, threatened with the loss of federal funds under title IX, aren't interested, clearly, in impartial procedures that respect traditional principles of American justice.
Late in the book, Kipnis makes another critically important point about sexual assault on campus. Many complaints, of course, involve situations in which both parties have consumed large amounts of alcohol. Campus officials now argue routinely that no one can really consent to sex when under teh influence of alcohol (how much alcohol is required to deprive one of that power, I do not know), and therefore, sex with an inebriated woman is rape. Leaving aside the question of whether this really makes any legal sense, what Kipnis argues--and she is clearly right--is that such rules criminalize what has become normal behavior on many campuses. It is very clear that both young men and young women to go parties to get more or less drunk and "hook up." They know they are going to drink, and that they may have sex, when they arrive. But the adults who claim to supervise their lives have declared this behavior to be criminal--but only for the man, in a heterosexual encounter at least. I do not think this is a healthy situation for anyone concerned. For the record, if I had a daughter (which I never have), I would tell her in no uncertain terms never to get drunk with anyone she did not trust.
It is something of a miracle that Kipnis's book was ever written. The sex crimes bureaucracies on campus, she makes clear, also try to impose a high degree of secrecy on their proceedings, try to prevent the accused from keeping thorough records of them (for instance, by recording hearings or bringing attorneys with them), and say very little, normally, about how decisions were reached. Publicity worked for Kipnis. Her acocunt of her own case suggests to me that the Northwestern hierarchy realized that it could do a lot of harm, and she was found innocent of creating a hostile environment rather quickly after she became nationally known. Others, however, might not be so lucky. There is not the slightest doubt that if I were still teaching on campus, this blog post could easily be cited by any member of the university as an actionable attempt to create an unfriendly environment.
I had planned this post for some time, but this morning I was delighted to find that I am not alone. The Boston Globe, whose coverage of campus sexual assault usually reflects the new orthodoxy, included a long story this very morning quoting a large number of liberals, many of them women, who, like me, believe that the Education Department does indeed have to reform its title IX guidelines. I hope that readers here will be able to break through the firewall. It's a good story, and it suggests that, thank heaven, reverence for our legal traditions is, even now, far from dead. We still need a two-party system to remedy the excesses of both sides. This is one case where, even now, this might work.
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Friday, September 08, 2017
Struggling through the Crisis
We are now passing through the fourth great crisis of our national life, parallel to the American Revolution and the Constitutional period (1774-94), the Civil War (1860-8) and the Depression and SEcond World War (1929-45.) This was what William Strauss and Neil Howe predicted 25 years ago, and they were right. Like the other crises, this one is cutting us loose from our political moorings and making it very hard--like a battle--to keep a clear head. Let me try to make our predicament, as I see it, just a little clearer.
Each of these crises, it seems to me, has had two different dimensions. To begin with, they all involve a very real struggle over the shape of America's future, and an attempt to replace a dying old order with a new one. In the 1770s and 1780s this drama played out twice, first as the colonies overthrew British rule, and then as they replaced the Articles of Confederation with the Constitution. In the 1860s we struggled over whether we would remain one nation, and whether it could continue to allow slavery. The New Deal established new and critical roles for the federal government and changed the relations between labor and capital. Now, we are fighting, and have been for some time, to see what, if anything, we shall preserve from the largely vanished New Deal leadership.
Yet each crisis had another even more important dimension as well: the question of whether a national government could either be created, or whether the existing one could continue to function at all. Only barely did the Continental Congress and the state governments manage to keep the revolutionary armies in the field after 1775, and the constitutional convention convened in 1787 because the nation was sinking into anarchy. Federal authority seemed to be disappearing when Lincoln took office, and he used emergency powers to preserve it. A complete economic and political collapse seemed possible when FDR took office in 1933, and three years later the functioning of the federal government seemed to be threatened by a recalcitrant Supreme Court. Because our forefathers overcome all those challenges, the United States still exists today.
Events this week suggest to me that we have been so preoccupied with the first aspect of our own crisis--the struggle over the future of America--that we have lost sight of the second--the possibility that our government might fail to function at all. And for that reason, a relatively promising development--President Trump's deal with Charles Schumer and Nancy Pelosi over the debt ceiling--has been attacked by partisan Democrats and Republicans alike.
Now there is no question that this crisis has a third, nearly unprecedented dimension: the personality of Donald Trump, who is manifestly unfit for office. The only parallel from history is Andrew Johnson, the President from 1865 until 1869, who immediately fell into a conflict with the Republican leadership in Congress, did what he could to stop Reconstruction from changing the South, and was nearly removed from office. But Trump did not begin the battle for the future of America that is now waging, nor is he only one on his side waging it now. The Republican Party, after accepting the New deal from the late 1940s through the early 1970s, declared war on it once again in the 1980s, and that war has only escalated ever since. Corporate America and corporate money now dominate our politics and critically influence both of our political parties. Economic inequality has increased steadily for 40 years, the antitrust laws have become almost a dead letter, and most of our state governments are in the hands of politicians dedicated to the free market. While New Deal ideas like single payer health care and free education are gaining ground in the left wing of the Democratic Party, their chances of coming true seem quite slim. In my opinion we will be fortunate if we get out of the crisis with our economic arrangements more or less as they are right now, and real reform will have to wait perhaps another generation.
Meanwhile, however, the government has to keep functioning--and there are very real threats to it as I write. One is a possible constitutional convention called at the behest of state legislatures, many of whom have already asked for it. The Republicans control 32 state legislatures, and only 34 could call such a convention into existence. But the more immediate threat by far would be the Congress's failure to authorize an increase in the debt ceiling, as many of the extreme right wing Republicans in the House have long wanted to do. That would affect not only our government, but the whole world economy. And that was the possibility that President Trump and minority leaders Schumer and Pelosi joined together this week to stop, successfully tying an increase in the debt ceiling to the passage of relief for hurricane Harvey. Many Republicans are furious, and Speaker Ryan felt outmaneuvered. But some Democratic commentators, such as Michael Tomasky, are already worried that this might be the prelude to another deal with Trump, one that gave him some billions of dollars for his wall while reinstating some kind of DACA program to stop the deportation of "dreamers."
Meanwhile, on another front, a group of Democratic state attorneys general are trying to delegitimize the president's authority altogether. Their lawsuit to stop him from ending the (entirely optional) DACA program that President Obama put in place argues, among other things, that the President should not be allowed to stop the program because he expressed hostility towrads Mexican immigrants during the campaign. While I feel very strongly that Dreamers need to be put on a path to citizenship immediately, I think it is entirely unreasonable to expect the courts to rule that our duly elected President is debarred from exercising lawful authority because he has expressed views that many, or even most Americans, find repugnant. The political process is supposed to reflect the views of the American people. It has failed to do so on immigration, but that does not mean that we can count on the courts to stop the executive from functioning the way conservatives counted on them to stop the New Deal in its tracks during Roosevelt's first term.
If we want us to remain one nation--which I for one most certainly do--we must accept that many of the views of those who elected Donald Trump and the Republican Congress will now be put into effect. The only cure for the ills of democracy, as Al Smith said, is more democracy. In a few instances--such as the Education Department's plans to rewrite university guidelines for handling accusations of sexual assault--the Trump Administration might even do some good. (I will be discussing this topic soon, based on Northwestern University professor Laura Kipnis's book, Unwelcome Advances.) Those will never be anything more than exceptional, but I am not going to criticize the Democratic congressional leadership for taking steps to allow the government to keep functioning--the kind of steps that their Republican counterparts were so opposed to while Barack Obama was President.
Each of these crises, it seems to me, has had two different dimensions. To begin with, they all involve a very real struggle over the shape of America's future, and an attempt to replace a dying old order with a new one. In the 1770s and 1780s this drama played out twice, first as the colonies overthrew British rule, and then as they replaced the Articles of Confederation with the Constitution. In the 1860s we struggled over whether we would remain one nation, and whether it could continue to allow slavery. The New Deal established new and critical roles for the federal government and changed the relations between labor and capital. Now, we are fighting, and have been for some time, to see what, if anything, we shall preserve from the largely vanished New Deal leadership.
Yet each crisis had another even more important dimension as well: the question of whether a national government could either be created, or whether the existing one could continue to function at all. Only barely did the Continental Congress and the state governments manage to keep the revolutionary armies in the field after 1775, and the constitutional convention convened in 1787 because the nation was sinking into anarchy. Federal authority seemed to be disappearing when Lincoln took office, and he used emergency powers to preserve it. A complete economic and political collapse seemed possible when FDR took office in 1933, and three years later the functioning of the federal government seemed to be threatened by a recalcitrant Supreme Court. Because our forefathers overcome all those challenges, the United States still exists today.
Events this week suggest to me that we have been so preoccupied with the first aspect of our own crisis--the struggle over the future of America--that we have lost sight of the second--the possibility that our government might fail to function at all. And for that reason, a relatively promising development--President Trump's deal with Charles Schumer and Nancy Pelosi over the debt ceiling--has been attacked by partisan Democrats and Republicans alike.
Now there is no question that this crisis has a third, nearly unprecedented dimension: the personality of Donald Trump, who is manifestly unfit for office. The only parallel from history is Andrew Johnson, the President from 1865 until 1869, who immediately fell into a conflict with the Republican leadership in Congress, did what he could to stop Reconstruction from changing the South, and was nearly removed from office. But Trump did not begin the battle for the future of America that is now waging, nor is he only one on his side waging it now. The Republican Party, after accepting the New deal from the late 1940s through the early 1970s, declared war on it once again in the 1980s, and that war has only escalated ever since. Corporate America and corporate money now dominate our politics and critically influence both of our political parties. Economic inequality has increased steadily for 40 years, the antitrust laws have become almost a dead letter, and most of our state governments are in the hands of politicians dedicated to the free market. While New Deal ideas like single payer health care and free education are gaining ground in the left wing of the Democratic Party, their chances of coming true seem quite slim. In my opinion we will be fortunate if we get out of the crisis with our economic arrangements more or less as they are right now, and real reform will have to wait perhaps another generation.
Meanwhile, however, the government has to keep functioning--and there are very real threats to it as I write. One is a possible constitutional convention called at the behest of state legislatures, many of whom have already asked for it. The Republicans control 32 state legislatures, and only 34 could call such a convention into existence. But the more immediate threat by far would be the Congress's failure to authorize an increase in the debt ceiling, as many of the extreme right wing Republicans in the House have long wanted to do. That would affect not only our government, but the whole world economy. And that was the possibility that President Trump and minority leaders Schumer and Pelosi joined together this week to stop, successfully tying an increase in the debt ceiling to the passage of relief for hurricane Harvey. Many Republicans are furious, and Speaker Ryan felt outmaneuvered. But some Democratic commentators, such as Michael Tomasky, are already worried that this might be the prelude to another deal with Trump, one that gave him some billions of dollars for his wall while reinstating some kind of DACA program to stop the deportation of "dreamers."
Meanwhile, on another front, a group of Democratic state attorneys general are trying to delegitimize the president's authority altogether. Their lawsuit to stop him from ending the (entirely optional) DACA program that President Obama put in place argues, among other things, that the President should not be allowed to stop the program because he expressed hostility towrads Mexican immigrants during the campaign. While I feel very strongly that Dreamers need to be put on a path to citizenship immediately, I think it is entirely unreasonable to expect the courts to rule that our duly elected President is debarred from exercising lawful authority because he has expressed views that many, or even most Americans, find repugnant. The political process is supposed to reflect the views of the American people. It has failed to do so on immigration, but that does not mean that we can count on the courts to stop the executive from functioning the way conservatives counted on them to stop the New Deal in its tracks during Roosevelt's first term.
If we want us to remain one nation--which I for one most certainly do--we must accept that many of the views of those who elected Donald Trump and the Republican Congress will now be put into effect. The only cure for the ills of democracy, as Al Smith said, is more democracy. In a few instances--such as the Education Department's plans to rewrite university guidelines for handling accusations of sexual assault--the Trump Administration might even do some good. (I will be discussing this topic soon, based on Northwestern University professor Laura Kipnis's book, Unwelcome Advances.) Those will never be anything more than exceptional, but I am not going to criticize the Democratic congressional leadership for taking steps to allow the government to keep functioning--the kind of steps that their Republican counterparts were so opposed to while Barack Obama was President.
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