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Thursday, December 29, 2005

A Matter of Perspective

Today´s LA Times includes a long and extremely informative article confirming what I argued last week, that the Parliamentary elections appear to have sounded the death knell for a united--much less secular--Iraq. In the South, 90% voted for Shi´√≠te lists (mostly religious ones); in the center 90% voted for Sunni lists (many of them religious as well); and in the Kurdish areas 90% voted for Kurdish lists. The UN obsever team has dismissed accusations of fraud and ruled out a re-vote. Under the Constitution, which the Shi´ites and Kurds will see no reason to revise, those two groups can move quickly to set up quasi-independent states. Given the huge mixed population of Baghdad, however, the Shi´ites may prefer to try to rule even more of the Arab areas, sparking civil war.

The story also includes some interesting quotes from Juan Cole of the University of Michigan, certainly an authority on Islam. While in a sense accurate, it seems to me they illustrate the benfits of an acquaintance with the Strauss-Howe theory of 80-year cycles and the ebb and flow of ethnic identity on the one hand and civic virtue on the other. Here are they key paragraphs:

"`I would argue that all national identities have been recently created, so Iraq is not significantly different,´ [Cole] said. For 85 years, `Iraqi nationalism has been drilled in through the school system and in other ways.´

"With the collapse of Baathist-imposed Arab nationalism, Iraqis need to work out a new identity that includes all Iraqis, just as Canada managed to accommodate the Quebecois and Britain the Scots, Cole said."

Cole, whom it would be fair to describe as a mainstream academic, accurately identifies the fragmentation that has been characteristic of all western societies, to say nothing of the former Communist bloc, during the last 40 years. Quebec now has a separate cultural identity, whose creation involved some significant, albeit non-violent, ethnic cleansing of English-speaking Canadians. Scottish nationalism has grown in strength. The Soviet Union, Czechoslovakia and Yugoslavia have ceased to exist. In the United States (and especially in academia) multiculturalism has gained strength at the expense of any national identity. National identities have not necessarily been "recently" created. What history shows, to those willing to take a long view, is that they must be periodically recreated if nations want to survive.

What Cole is overlooking, it seems to me, is that this process leads to the disintegration of states if a violent crisis of some kind--sometimes internal, sometimes external--does not reinforce national identity. The US was fragmenting politically in the 1850s, before the civil war ended dreams of secession and helped integrate Irish-Americans into American society. The Second World War provided a similar function both for immigrants from Eastern and Southern Europe, who became truly assimilated, and for black Americans who finally began to secure real citizenship. Sad to say, societies need these periodic crises, it would appear, to survive, and Europe, already beset with cultural divides, will face an even more interesting challenge after five decades of attempting to replace national identity with European identity. But in Iraq, there no longer seems any chance of avoiding the break-up of the country, and as the majority Shi´ite population comes under religious rule, this will clearly emerge as a significant strategic defeat for the United States. Like the Austro-Hungarian government that felt a preventive war might destroy the threat of Balkan nationalism in 1914, we have instead unleashed a process that is likely to make things worse from our point of view.

The full LA Times article is available at http://www.latimes.com/news/nationworld/world/la-fg-identity29dec29,1,2190608.story?page=2&coll=la-headlines-world
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Sunday, December 25, 2005

At the Year's End

The Iraqi elections, sadly, appear to have confirmed the fears I laid out a few weeks ago. Like similar elections in Yugoslavia in the early 1990s, they seem destined to promote civil war and the break-up of the country. Preliminary results show that voting took place almost entirely along sectarian lines, that the Shi'ite alliance (dominated by very religious elements) has almost certainly won a substantial majority, and that the alternative of a coalition of Kurds, Sunnis and secular Shi'ites, which the Administration vigorously promoted as a real possibility in the weeks leading up the election, was a fantasy. Sunnis and Iyad Allawi's party are already marching in protest protesting rigging and intimidation at the polls--of which there certainly was some. Meanwhile, the Israelis and Palestinians are threatening to cancel the elections in the occupied territories over the issue of the participation of Hamas, which obviously does represent the views of a substantial number of Palestinians.

Yet today, in the last post of the year, I shall return to the issue dominating our own front pages, the power of the President to order surveillance and the renewed struggle, really, over the Bill of Rights. I do so not simply to register my own dismay at the resurgence of the issues that led to Richard Nixon's downfall, but to suggest that we should not be surprised to see our Executive once again assert such powers, and that we should regard this as another inevitable test of the liberties that our forefathers so magnificently bequeathed to us about 215 years ago.

The issues surrounding a Bill of Rights--which of course was not part of the original constitution--were stated by James Madison in a letter to his friend Thomas Jefferson, then serving as Minister to Paris, in 1788. I quote:

"My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light--1. because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson, the rights in question are reserved by the manner in which the federal powers are granted. 2 because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests, opened a door for Jews Turks & infidels. 3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4. because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience, it is well known that a religious establishment wd have taken place in that State, if the Legislative majority had found as they expected, a majority of the people in favor of the measure; and I am persuaded that if a majority of the people were now of one sect, the measure would still take place and on narrower ground than was then proposed, notwithstanding the additional obstacle which the law has since created. Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to; and is probably more strongly impressed on my mind by facts, and reflections suggested by them, than on yours which has contemplated abuses of power issuing from a very different quarter. Where-ever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince. The difference so far as it relates to the superiority of republics over monarchies, lies in the less degree of probability that interest may prompt more abuses of power in the former than in the latter; and in the security in the former agst an oppression of more than the smaller part of the Society, whereas in the former [latter] it may be extended in a manner to the whole. The difference so far as it relates to the point in question-the efficacy of a bill of rights in controuling abuses of power-lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing & uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and, consequently the tyrannical will of the Sovereign is not [to] be controuled by the dread of an appeal to any other force within the community. What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following which, though less essential than in other Governments, sufficiently recommend the precaution: 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. 2. Altho. it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be a good ground for an appeal to the sense of the community."

Many generations of American schoolchildren have learned the democracy, in and of itself, assures liberty and rights, and President Bush has gone a step further, assuring us that it will assure peace throughout the world. (See above.) The genius of the Fathers (and, for that matter, of Jean-Jacques Rousseau, who is frequently misunderstood on this point) lay in their rejection of any such simplistic theory. They, after all, had believed until the 1770s that they had lived in the most liberal and enlightened regime on earth, yet they had found themselves forced to rebel against its abuses of power. No regime in and of itself, they understood, offered guarantees against the abuse of power. Jefferson's reply took Madison a step further, however, and makes for even more interesting reading today.

"The Declaration of rights is like all other human blessings alloyed with some inconveniences, and not accomplishing fully it's object. But the good in this instance vastly overweighs the evil. I cannot refrain from making short answers to the objections which your letter states to have been raised. 1. That the rights in question are reserved by the manner in which the federal powers are granted. Answer. A constitutive act may certainly be so formed as to need no declaration of rights. The act itself has the force of a declaration as far as it goes: and if it goes to all material points nothing more is wanting. In the draught of a constitution which I had once a thought of proposing in Virginia, and printed afterwards, I endeavored to reach all the great objects of public liberty, and did not mean to add a declaration of rights. Probably the object was imperfectly executed: but the deficiencies would have been supplied by others in the course of discussion. But in a constitutive act which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new federal constitution. This instrument forms us into one state as to certain objects, and gives us a legislative and executive body for these objects. It should therefore guard us against their abuses of power within the feild submitted to them. 2. A positive declaration of some essential rights could not be obtained in the requisite latitude. Answer. Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can. 3. The limited powers of the federal government and jealousy of the subordinate governments afford a security which exists in no other instance. Answer. The first member of this seems resolvable into the 1st. objection before stated. The jealousy of the subordinate governments is a precious reliance. But observe that those governments are only agents. They must have principles furnished them whereon to found their opposition. The declaration of rights will be the text whereby they will try all the acts of the federal government. In this view it is necessary to the federal government also: as by the same text they may try the opposition of the subordinate governments. 4. Experience proves the inefficacy of a bill of rights. True. But tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkeable difference between the characters of the Inconveniencies which attend a Declaration of rights, and those which attend the want of it. The inconveniences of the Declaration are that it may cramp government in it's useful exertions. But the evil of this is shortlived, moderate, (6) and reparable. The inconveniencies of the want of a Declaration are permanent, afflicting and irreparable: they are in constant progression from bad to worse. The executive in our governments is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for long years. That of the executive will come in it's turn, but it will be at a remote period. "

Recognizing that, human nature being what it is, nothing could prevent the violation of any rights defined in the Constitution forever, Jefferson still believed that the presence of the Bill of Rights would make in harder for any branch of the government to persist in such violations. So it has.

In 1973, in one of the most dramatic moments of the Senate Watergate hearings, Senator Sam Ervin, contesting John Ehrlichman's assertions of Presidential power to surveil American citizens, referred to Ex Parte Milligan as his most beloved opinion ever handed down by the Supreme Court. I had not heard of it at that time and it took me many more years to read it, but when I finally did I understood the depth of his feeling. That opinion, handed down in 1866, has even more resonance today, because it involved a reputed Confederate sympathizer from Indiana, Milligan, who in the midst of the Civil War had been tried and sentenced to hang by a military court, martial law having been proclaimed in the southern part of the state. Milligan had petitioned for a writ of habeas corpus in federal court, which had so far been denied. The government argued in words that resonate today that the President's warmaking power overrode any of the guarantees of the Bill of Rights, a rebellion then being in progress, as it most surely was. Justice Davis delivered the opinion of the court, from which I quote:

"During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power, and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation. . .

Discussing Milligan's rights under the law that had been passed allowing Lincoln to suspend the writ of habeas corpus, as the Constitution provided "in time of invasion or rebellion," Judge Davis's opinion tells us exactly what was and what was not permitted during the Civil War--far less, as a matter of fact, than the Bush Administration claims today with respect to "enemy combatants," including American citizens.

"But Milligan claimed his discharge from custody by virtue of the act of Congress "relating to habeas corpus, and regulating judicial proceedings in certain cases," approved March 3d, 1863. Did that act confer jurisdiction on the Circuit Court of Indiana to hear this case?
In interpreting a law, the motives which must have operated with the legislature in passing it are proper to be considered. This law was passed in a time of great national peril, when our heritage of free government was in danger. {115} An armed rebellion against the national authority, of greater proportions than history affords an example of, was raging, and the public safety required that the privilege of the writ of habeas corpus should be suspended. The President had practically suspended it, and detained suspected persons in custody without trial, but his authority to do this was questioned. It was claimed that Congress alone could exercise this power, and that the legislature, and not the President, should judge of the political considerations on which the right to suspend it rested. The privilege of this great writ had never before been withheld from the citizen, and, as the exigence of the times demanded immediate action, it was of the highest importance that the lawfulness of the suspension should be fully established. It was under these circumstances, which were such as to arrest the attention of the country, that this law was passed. The President was authorized by it to suspend the privilege of the writ of habeas corpus whenever, in his judgment, the public safety required, and he did, by proclamation, bearing date the 15th of September, 1863, reciting, among other things, the authority of this statute, suspend it. The suspension of the writ does not authorize the arrest of anyone, but simply denies to one arrested the privilege of this writ in order to obtain his liberty.
It is proper therefore to inquire under what circumstances the courts could rightfully refuse to grant this writ, and when the citizen was at liberty to invoke its aid.

"The second and third sections of the law are explicit on these points. The language used is plain and direct, and the meaning of the Congress cannot be mistaken. The public safety demanded, if the President thought proper to arrest a suspected person, that he should not be required to give the cause of his detention on return to a writ of habeas corpus. But it was not contemplated that such person should be detained in custody beyond a certain fixed period unless certain judicial proceedings, known to the common law, were commenced against him. The Secretaries of State and War were directed to furnish to the judges of the courts of the {116} United States a list of the names of all parties, not prisoners of war, resident in their respective jurisdictions, who then were or afterwards should be held in custody by the authority of the President, and who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired. After the list was furnished, if a grand jury of the district convened and adjourned, and did not indict or present one of the persons thus named, he was entitled to his discharge, and it was the duty of the judge of the court to order him brought before him to be discharged if he desired it. The refusal or omission to furnish the list could not operate to the injury of anyone who was not indicted or presented by the grand jury, for, if twenty days had elapsed from the time of his arrest and the termination of the session of the grand jury, he was equally entitled to his discharge as if the list were furnished, and any credible person, on petition verified by affidavit, could obtain the judge's order for that purpose.
Milligan, in his application to be released from imprisonment, averred the existence of every fact necessary under the terms of this law to give the Circuit Court of Indiana jurisdiction. If he was detained in custody by the order of the President otherwise than as a prisoner of war, if he was a citizen of Indiana and had never been in the military or naval service, and the grand jury of the district had met, after he had been arrested, for a period of twenty days, and adjourned without taking any proceedings against him, then the court had the right to entertain his petition and determine the lawfulness of his imprisonment. Because the word "court" is not found in the body of the second section, it was argued at the bar that the application should have been made to a judge of the court, and not to the court itself; but this is not so, for power is expressly conferred in the last proviso of the section on the court equally with a judge of it to discharge from imprisonment. It was the manifest design of Congress to secure a certain remedy by which anyone deprived of liberty could obtain it if there was a judicial failure to find cause of offence against him. Courts are {117} not, always in session, and can adjourn on the discharge of the grand jury, and before those who are in confinement could take proper steps to procure their liberation. To provide for this contingency, authority was given to the judges out of court to grant relief to any party who could show that, under the law, he should be no longer restrained of his liberty."

And then Justice Davis, in words that certainly recall those of Madison and Jefferson 80 years earlier, reached the heart of the matter.

"The controlling question in the case is this: upon the facts stated in Milligan's petition and the exhibits filed, had the military commission mentioned in it jurisdiction legally to try and sentence him? Milligan, not a resident of one of the rebellious states or a prisoner of war, but a citizen of Indiana for twenty years past and never in the military or naval service, is, while at his home, arrested by the military power of the United States, imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and sentenced to be hanged by a military commission, organized under the direction of the military commander of the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man?

"No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole {119} people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says "That the trial of all crimes, except in case of impeachment, shall be by jury," and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure, and directs that a judicial warrant shall not issue "without proof of probable cause supported by oath or affirmation." The fifth declares
that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived {120} of life, liberty, or property without due process of law.

"And the sixth guarantees the right of trial by jury, in such manner and with such regulations that, with upright judges, impartial juries, and an able bar, the innocent will be saved and the guilty punished. It is in these words:

"In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
These securities for personal liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that, when the original Constitution was proposed for adoption, it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified.

"Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times {121} and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority."

We must all understand that the Founding Fathers also understood, having lived through a revolution and a long war, that wartime must indeed confer extraordinary powers upon the executive, but as Davis pointed out in even more moving language, those powers were anything but unlimited.

"It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States.
"If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.
The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" — the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure {125} together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish.
"This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew — the history of the world told them — the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus.

"It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible, and yet the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested {126} in answer to a writ of habeas corpus. The Constitution goes no further. It does not say, after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy, by the use of direct words, to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so."

And 105 years later the great Justice Hugo Black used exactly the same reasoning in the Pentagon Papers case, his last opinion.

"Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country. In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed:The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later.

I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men [p*717] that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law . . . abridging the freedom . . . of the press. . . ." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

"The Government's case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated:Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only [p*718] say, Mr. Justice, that to me it is equally obvious that "no law" does not mean "no law," and I would seek to persuade the Court that that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States. And the Government argues in its brief that, in spite of the First Amendment,[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief.

"In other words, we are asked to hold that, despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. [n5] See concurring opinion of MR. JUSTICE DOUGLAS, post at 721-722 .

"To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.

"The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes -- great man and great Chief Justice that he was -- when the Court held a man could not be punished for attending a meeting run by Communists.

"'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.'"

We are in the midst of the holiday season, in which Christians, Jews and African-Americans celebrate variations upon the original northern European pagan holiday that marked the winter solstice, the darkest moment of the year, and the promise of longer and warmer days to come, by feasting, placing a tree within their homes, and exchanging presents. Such was (and remains) the power of this annual festivity that Christianity found itself forced to incorporate it into its ritual (with no scriptural foundation whatsoever), and non-Christian Americans have had to make it a religious and cultural observance of their own. (Those fundamentalists accusing secular America of hijacking Christmas are calling the kettle black. It was Christianity that performed the first hijacking, approximately 1500 years ago.) Having been raised with no religion, I grew up with a secular one, the religion of the Constitution of the United States. To me and to many others the Constitution, and the commentaries I reproduced above, are sacred. But let us remember exactly what they mean. They did not, and never will, solve the problems of liberty and free government for all time. New leaders will once again arise to claim, under the mantle of the Constitution, exactly the powers that the framers wanted to outlaw. Yet they have left the rest of us the best tools ever devised with which to preserve these freedoms, and we should welcome the chance to take up the struggle again, confident that, with due vigilence, we shall live to see another Supreme Court vindicate the views of Jefferson and speak once again the language of Davis and Black.

Sunday, December 18, 2005

They were giants in those days

Today’s papers carry the news of the death of Jack Anderson, the muckraking columnist who, among other things, uncovered the Nixon Administration’s tilt towards Pakistan in 1971 and broke many stories about the CIA and the Watergate scandals. By a coincidence, I have been rereading one of my favorite books, the diaries of Drew Pearson, Anderson’s onetime boss and later collaborator, who wrote a daily column, The Washington Merry-Go-Round, from 1932 to his death in 1969. Forgotten today, Pearson, whom I have already quoted with respect to Herbert Hoover, was one of the most extraordinary journalists in American history—a type whom we desperately need, but do not have, today.

In 1949, Pearson was both a columnist carried by several hundred newspapers and a nationally syndicated broadcaster. Libel law still favored the plaintiff in those days and New York Times vs. Sullivan was 15 years in the future. Pearson was the subject of dozens of libel suits—chronicled, in fact, in a monograph, A Washington Merry-Go-Round of Libel Actions, which went into the biggest ones at considerable length. Pearson defended them all, refusing even to buy libel insurance, since the insurance company might insist that he print a retraction rather than face a trial. He lost only one, to a Washington attorney named whom he had accused of representing the Dutch and Polish governments without registering as a foreign agent. His column, which appeared 365 days a year, featured a mix of backstairs Washington doings, stories of political corruption, and society gossip. Everyone who has seen Patton knows that Eisenhower relieved Patton for slapping a soldier, but no one knows that it was Drew Pearson who broke the story.

The year 1949 provides a good example of Pearson’s customary round of controversies.

1. The Attorney General of California, one Fred Howser, was suing him for $300,000 for having written that Howser had taken contributions from underworld gamblers.

2. Pearson had told the world that Father Charles Coughlin, the notorious pro-Fascist, anti-Semitic Catholic priest whose own nationwide radio broadcasts were very popular, had paid a Detroit man named Gariepy tens of thousands of dollars in an alienation of affections suit involving Gariepy’s wife. The whole Catholic hierarchy lined up against Pearson and successfully persuaded his radio sponsor, the Lee Hat company, to drop him. The Justice Department had evidence that the money had been paid, however, and when Mrs. Gariepy’s libel suit came to trial, the jury, hung 11-1 in Pearson’s favor, was dismissed, and the case was never retried.

3. During early 1949 Pearson had been writing that James Forrestal, the first Secretary of Defense, was mentally unstable, and eventually he reported correctly that Forrestal had tried to commit suicide. Shortly thereafter Forrestal, confined to Bethesda Naval Hospital in a state of extreme emotional distress, did kill himself, and several people publicly accused Pearson of causing his death—led by the conservative columnist Westbrook Pegler, whom Pearson promptly sued for $300,000. Forrestal’s friends, including President Truman (see below), started a letter-writing campaign against Pearson, leading him to write the following extraordinary diary entry on May 26, 1949.

“People are repeating the charge that I killed Forrestal to the extent that I am almost beginning to lie awake nights wondering whether I did. Certainly a lot of people have convinced themselves that it is true.
“The truth is that my expose of Senator Bankhead’s speculation on the cotton market probably did kill him. The Alabama Democrat [and close relative of the actress Tallulah] had a stroke a few days thereafter and died. I was always afraid I might be accused of his death, and in his case I undoubtedly would have been guilty. I have also been wondering why people did not accuse me of being responsible for Parnell Thomas’s illness after the stories on his salary kickbacks.” [J. Parnell Thomas was the Chairman of the House Un-American Activities Committee, who went to Danbury Federal Prison after his secretary told Pearson that he was padding his payroll, and became a fellow inmate of Ring Lardner, Jr., whom he had interrogated as one of the Hollywood Ten.]
“But in the case of Forrestal my record is fairly clear. There was not very much I wrote about him of a personal nature.”

4. Pearson’s feud with Harry Truman began in 1945, when he criticized Bess Truman’s demeanor at the inaugural ball—a sin Harry could not forgive. It got worse as Pearson campaigned against General Harry Vaughn, Truman’s personal aide, who was mixed up in a number of Washington money-making schemes. Pearson heard during 1949 that Truman had called him an S. O. B. (one of the President’s favorite locutions), and announced on the air that he was forming an organization called the Servants of Brotherhood, which he hoped the President would join. The columnist regarded himself as a political activist and a journalist at the same time, and as a staunch liberal, he continually tried to help Truman in spite of their lack of any relationship. "Sometimes," he wrote in May 1951, "I think this administration is so dumb it is not worth saving. The tragic thing is that the Republicans at the moment are worse. And if the things Truman stands for all, the whole liberal era in this country collapses. I sometimes wonder why I should be trying to help out a Defense Department and a White House which three times has demanded of the Attorney General that I be prosecuted for publishing one of MacArthur's intelligence reports which showed up [General] MacArthur in his true light even as early as last September." Movingly, when he called the now ex-President in early 1953, Truman immediately took his call, greeted him warmly, and commiserated about the new mess in Washington. The two men remained friendly for the rest of the decade, and in another diary entry Pearson commented that Truman’s aides probably weren’t quite as bad as he had said they were.

Other notable occurrences from other years:

5. In late 1958, Pearson created a stir by telling Mike Wallace, in a television interview, that Senator John F. Kennedy had not actually written Profiles in Courage. (The clip of him doing so is featured in the DVD that Wallace has now issued along with his autobiography.) Opening up his files, Kennedy convinced Pearson that although he had undoubtedly received a lot of help, the idea and some of the research were his and he was very familiar with the contents. “Sometimes I’m a sucker for a nice guy who presents an appealing story,” Pearson wrote. “I’m not sure whether this was the fact in my talk with Kennedy or not. He didn’t ask me for a retraction, but I think I shall give him one.” As we know now, the original accusation was correct.

6. When Senator Joseph McCarthy announced that there were over 200 Communists in the State Department in early 1950, Pearson immediately went on the attack, opening up a war to the death. McCarthy retaliated by attacking Pearson’s new radio sponsor, the Adam Hat company, on the Senate floor, claiming that any American who bought an Adam Hat was now contributing to the Communist conspiracy. Sadly, the company caved in, and Pearson retaliated with a conspiracy suit naming McCarthy, Westbrook Pegler, and several others as having conspired to deny him his livelihood, but it had not come to trial by the time McCarthy was censured in 1954 and dropped out of sight. McCarthy repeatedly accused Pearson of employing a Communist and receiving and publishing classified material, all on the Senate floor, where the Constitution protected him from libel suits.

To say that Pearson—a Quaker—loved a fight would be a gross understatement. His diary always encourages me because none of his travails seem to bother him very much, perhaps because he is so busy. He and Anderson broke the story of Sherman Adams’ (Eisenhower’s chief of staff) payments from Bernard Goldfine in 1958. And in 1967, it was Pearson and Anderson who for the first time published the story of the CIA’s mob plots against Castro. (Although Anderson today is usually credited with it, unpublished sections of Pearson’s diary show that it was the older man who got the story from Washington attorney Edward Morgan.) Publicly the story went nowhere, but it led Lyndon Johnson to ask Richard Helms to look into the matter, and the CIA IG report describing the plots resulted.

When Pearson died Anderson wrote the column in the same spirit for many years, but the Washington Post dropped it in the 1990s, by which time it had become a shadow of its former self. That, in my opinion, was a sad day for American journalism. While Anderson may have grown too old to continue, the column itself and the freewheeling style it represented should have survived. There is nothing remotely like it in print journalism today. An intrepid blogger could, perhaps, take Pearson’s place, but he or she would have to do far more real reporting than any blogger I know of.

Pearson’s diary and the books he wrote with his original collaborator Robert Allen (mainly in the 1930s) are extraordinary today because of the intense interest they take in the lives and careers of public officials. By comparison with the 1930s through the 1960s, the legislators and cabinet officers of today have become lifeless figureheads whose personalities make no impact on the public. The need for someone like him is highlighted this morning by a New York Times review of a new book, The Republican War on Science, by Chris Mooney. The reviewer, John Horgan, tells how an editor at an unnamed magazine insisted that he rewrite a piece on the endangered Florida panther because it was too anti-Adminstration. Curiously, either Horgan or the Times editor decided that we did not deserve to hear how the argument turned out. Pearson would have called it as he saw it, and if some newspapers had refused to run the columnn--as papers frequently did--he would have shrugged his shoulders and gone on to the next day's work.

Certainly Pearson, were he alive today, would have more to write about than ever: the Delay and Abramoff scandals, the Administration’s efforts to plant stories in the press, the issue of torture and secret detention, the growing collapse of effective federal government, the power of the drug and oil industries, and on, and on, and on. He would once again be repeatedly investigated (as he was in those days) and his telephone might well be tapped again. Yet he would enjoy far more protection from libel suits, and Scott McClellan and the rest of the Administration would have to deal day after day with a determined bulldog who would print anything he believed to be true, who received numerous tips from Americans great and small, and who had no fear of anyone on earth.

Saturday, December 17, 2005

Presidential Power and Congressional Resolutions

In the wake of the disclosure of President Bush's authorization for the NSA to eavesdrop on conversations involving American citizens without a warrant--in flat violation of a 1978 statute--the Senate yesterday refused to end a filibuster and re-authorize the Patriot Act. The Republican leadership is threatening to let the act die and blame Democrats at the next election--once again raising the question of whether their war on terror is, more than anything else, an electoral device designed to enshrine Republican rule. Two days ago, the President finally gave in to legal restrictions on interrogation techniques. It is a good time to review exactly what claims the Administration is making for Presidential power.

Their basic premise--the subject of a good, but restrained front page piece in today's New York Times (http://www.nytimes.com/2005/12/17/politics/17legal.html?hp&ex=1134882000&en=e6794b1f39df0692&ei=5094&partner=homepage) --is that the President in wartime has unlimited powers as commander in chief which no legislation or court decision can infringe upon. That was President Nixon's position as well, one for which he was impeached. The position was elaborated, apparently, by John Yoo, a former White House legal counsel who now teaches at the University of California at Berkeley. Yet there is another huge problem created by the Congress just a few days after 9/11--the resolution authorizing the President to begin the war on terror.

The key provision of that resolution reads:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. "

Passed just three days after 9/11, this is surely the most sweeping grant of authority ever made to a President, and does, one might argue, permit much (though certainly not all) of what the Administration has been doing, including the kidnapping of suspects overseas and their dispatch to third countries for interrogation. The reason is that, unlike a declaration of war, it does not confine our enemies to any particular state or territory. In addition, it leaves the determination of who is our enemy in this new conflict entirely in the hands of the executive branch. In short, the Congress essentially turned the American military into a worldwide police force authorized to kill or seize anyone, anywhere, provided that the President believes they might commit a terrorist act. The Resolution is an attack on the soveriengty of every nation in the world. And to this the Administration has added (until now, without effective dissent from the Congress), the claim that the President has the right to authorize any form of interrogation not likely to result in imminent organ failure or death.

The resolution has in effect given this President (or any future President) the right to begin war on Iran, Syria, or even Pakistan at will, provided that he is convinced that they are harboring terrorists. He could also make a missile strike against a purported terrorist cell in any city on earth, including London, Paris, or Madrid. On September 14, 2001 the country was traumatized, and no one seems to have stopped to think about what they were doing. But the effect of this resolution, in place of a simple declaration of war on Afghanistan, has been to foreclose any serious debate about exactly what mix of diplomacy, alliances and force we need to fight the war on terror, and how to avoid making things worse while we do so. And in today's political climate it seems impossible that its repeal or replacement by something more moderate could even be discussed.

Jefferson, in arguing with Madison about the failure of the original Constitution to include a Bill of Rights, recognized that in perilous times the government would attempt to disregard any guarantees that the document included. So it was in the Civil War, so it was in the Second World War and the Vietnam War, and so it is today. We must hope that, sooner rather than later, we recover our bearings.

A longer post, on a more historical topic, will appear tomorrow.

Sunday, December 11, 2005

P.S.--In Iraq

Several weeks ago I reviewed George Packer's book, The Assassin's Gate. Packer's early chapters described his relationship with an Iraqi-American academic named Kanan Makiya, a strong proponent of the American invasion of Iraq and a believer in the possibilities for democracy there. Today's New York Times Week in Review includes a long article by Makiya, protesting at great length that the situation in Iraq is deteriorating and that the new constitution's emphasis on federalism at the expense of a strong executive will lead to a civil war that will cost, he thinks hundreds of thousands of lives. Acknowledging his own failure to anticipate the situation that would develop, Makiya argues that the recent and impending elections in Iraq are hurting the situation, not helping it, pleads for the revision of the Constitution by independent experts. It is a moving and tragic piece which, one should hope, will be followed up by American reporters both in Iraq and in Washington, where Bush Administration officials should have to respond to this dismal picture and try to explain what, if anything, they are trying to do to stop it. The piece can be read at:

My own post for today appears below.

"Nationalism" again

As regular readers (and readers of my last book) know, for nearly ten years now I have been deeply engaged with the historical theories of William Strauss and Neil Howe, authors of Generations and The Fourth Turning. Essentially, they have argued that the life of a social and political order is about 80 years, culminating in a period of crisis that gives birth to a new order. For at least five years, the truth of their theory, I would suggest, has become clearer and clearer, although we certainly cannot as yet be sure where we are going, any more than our ancestors could in 1859 or in 1931. It was perhaps because I had already written and taught about so many historical periods and countries, and could test the theory in so many ways, that I became so interested in it, and this morning I shall share two illustrations bearing upon current events.

The first example involves the curse of the first half of the twentieth century: the inability of different ethnic and religious groups to live together in peace. As I discussed at length in Politics and War, the spread of nationalism from Western to Eastern Europe in the second half of the twentieth century became one of the two major causes of the First and Second World Wars (imperialism was the other.) Nationalism in the First World War tore down three the German, Austro-Hungarian, Russian and Ottoman Empires and created a whole host of new states, many of whom, inevitably, had mixed populations themselves. By that time, as Hannah Arendt pointed out rather brilliantly in The Origins of Totalitarianism, the international community had specifically abandoned the idea of the inalienable rights of man, and wrote treaties for the new post-1919 states in which they promised to respect the rights of their minorities--essentially confirming the existence of two kinds of citizens. The First World War and its aftermath also saw significant population and ethnic cleansing, most notably the genocide of the Armenians in Turkey and the exchange of Greek and Turkish populations. It also established the principle that Jews could settle in Palestine, opening the doors wide to another intractable conflict.

But the First World War was only a prologue to much greater horrors during the Second: the murder of about five million Jews and three million Christian Poles, and the expulsion of twelve to fourteen million Germans from territory taken by Poland and the Soviet Union, from Czechoslovakia, and from several other Eastern European states. Minorities, who in the 1930s had made up about 25% of the population of Eastern European states, had fallen to 7% of the same territories by the 1970s. Meanwhile, the creation of Israel started the modern Zionist-Palestinian conflict, and in Asia the independence of India and Pakistan was marked by hundreds of thousands of deaths and millions of refugees, as well as the beginning of another enduring conflict.

The triumph of the United States and the Soviet Union in 1945 gave the world a respite from such conflicts, not only because so many millions of minorities had been killed or uprooted, but also because both victor nations professed ideologies based upon reason, at least in theory, and affirming the essential equality of human beings. The triumph of the United States even led us to implement our own principles with respect to black Americans, undoing several centuries of legal white supremacy within just twenty more years. Communism was, as it turns out, the only modern ideology that could hold the old Russian Empire together, and its eclipse triggered a new round of ethnic wars in the Caucasus, and in Yugoslavia. Unfortunately, all signs point to a resurgence of ethnic and religious conflict in virtually every part of the world as the twentieth century yields to the twenty-first.

Thus, the European countries--for several decades, by various obvious measures, the most civilized in the world--are now threatened by the presence of a large and growing Muslim population which, as the riots in France showed, has not been integrated into their national communities in any meaningful sense. Iraq is being torn about by conflicts among Kurds, Shi'ites and Sunnis, and will probably join the Soviet Union and Yugoslavia among the crumbled relics of the First World War within a few years. The Israeli-Palestinian conflict is no closer to a solution. The Sunni-Shi'ite split threatens a number of other Middle Eastern countries. And the postwar, secular regimes in Arab states like Egypt and Syria have clearly lost a great deal of their legitimacy among their own people, and have even been repudiated by their patron the United States. Here in the United States, race remains a powerful predictor of voting, and public schools in much of the South are nearly as segregated as they were in 1954. To a considerable extent, the anti-government movement that has spread from the South to Washington draws on whites' unwillingness to fund public services for blacks. In India, the Congress Party struggles for dominance with Hindu nationalists who talk freely of a nuclear war with Pakistan, and the difference between Japanese and Chinese textbooks' treatment of the Second World War is increasing, not shrinking.

The terrifying question posed by Strauss and Howe's analysis is whether the United States and the rest of the world can create a new consensus without a new war that will cost millions, or tens of millions, of lives. The history of the last three centuries does not offer much hope. Violence on an enormous scale occurred in the 1774-1815 period, and during the First and Second World Wars. In the mid-19th century Europe largely escaped--thanks to a combination of memories of Napoleon and of Bismarck--but the American Civil War, the Indian Mutiny, and the Tai'ping rebellion in China all took the lives of many thousands. In any event, the civic and international order that we have taken for granted for 60 years is collapsing around us--and sadly, the government of the United States is taking a leading role in promoting its demise.

Meanwhile, here in the United States we are showing another malady characteristic of crisis periods--what George Orwell, at the height of the last great crisis in the 1940s, described in his essay, "Notes on Nationalism." Orwell was not referring to nationalism in the narrow sense of identification with one's own ethnic group, and still less to patriotism, which he defined in a revealing contrast as "devotion to a particular place and a particular way of life, which one believes to be the best in the world but has no wish to force on other people." Instead he meant, "the habit of identifying oneself with a single nation or other unit, placing it beyond good and evil and recognising no other duty than that of advancing its interests." As Orwell continues, his analysis gets closer and closer to home.

"A nationalist is one who thinks solely, or mainly, in terms of competitive prestige. He may be a positive or a negative nationalist--that is, he may use his mental energy either in boosting or in denigrating--but at any rate his thoughts always turn on victories, defeats, triumphs and humiliations. He sees history, especially contemporary history, as the endless rise and decline of great power units, and every event that happens seems to him a demonstration that his own side is on the upgrade and some hated rival is on the downgrade."

"Political or military commentators, like astrologers, can survive almost any mistake, because their more devoted followers do not look to them for an appraisal of the facts but for the stimulation of nationalistic loyalties."

"As nearly as possible, no nationalist ever thinks, talks, or writes about anything except the superiority of his own power unit. It is difficult if not impossible for any nationalist to conceal his allegiance. The smallest slur upon his own unit, or any implied praise of a rival organization, fills him with uneasiness which he can relieve only by making some sharp retort."

"All nationalists have the power of not seeing resemblances between similar sets of facts. A British Tory will defend self-determination in Europe and oppose it in India with no feeling of inconsistency. Actions are held to be good or bad, not on their own merits, but according to who does them, and there is almost no kind of outrage--torture, the use of hostages, forced labour, mass deportations, imprisonment without trial, forgery, assassination, the bombing of civilians--which does not change its moral colour when it is committed by 'our' side. "

"The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them. For quite six years the English admirers of Hitler contrived not to learn of the existence of Dachau and Buchenwald. And those who are loudest in denouncing the German concentration camps are often quite unaware, or only very dimly aware, that there are also concentration camps in Russia."

"Every nationalist is haunted by the belief that the past can be altered. He spends part of his time in a fantasy world in which things happen as they should--in which, for example, the Spanish Armada was a success or the Russian Revolution was crushed in 1918--and he will transfer fragments of this world to the history books whenever possible. Much of the propagandist writing of our time amounts to plain forgery. Material facts are suppressed, dates altered, quotations removed from their context and doctored so as to change their meaning. Events which it is felt ought not to have happened are left unmentioned and ultimately denied."

Neoconservatism, it seems to be, is surely the most important example of contemporary "nationalism" as Orwell defined it. Neoconservatives believe the United States has a sacred destiny to transform the world--which in practice amounts to eliminating any opposition to American interests--and that nothing but evil abroad and treachery at home stands in the way. Orwell also wrote that nationalists had a remarkable facility for switching sides, and some prominent neoconservatives such as David Horowitz and Melvin Olasky (the inventor of the the phrase "compassionate conservatism") began their adult lives on the extreme left. For thirty years economists, journalists and opinion leaders have sworn fealty to another kind of nationalism, free-market economics, in the name of which they continue to deny the most basic facts about the connections between taxes, deficits, and economic growth. To be sure, nationalism has been popular on the left for the last thirty years was well, focusing in the 1960s on Cuba and China, and in the 1970s and 1980s on Palestine and leftist movements in Central America. Orwell did, however, identify two forms of nationalism that have become extraordinarily influential among western intellectuals, the first of which, indeed, dominates most university humanities departments today.

"COLOUR FEELING. The old-style contemptuous attitude towards 'natives' has been much weakened in England, and various pseudo-scientific theories emphasising the superiority of the white race have been abandoned.[Note, below] Among the intelligentsia, colour feeling only occurs in the transposed form, that is, as a belief in the innate superiority of the coloured races. This is now increasingly common among English intellectuals, probably resulting more often from masochism and sexual frustration than from contact with the Oriental and Negro nationalist movements. Even among those who do not feel strongly on the colour question, snobbery and imitation have a powerful influence. Almost any English intellectual would be scandalised by the claim that the white races are superior to the coloured, whereas the opposite claim would seem to him unexceptionable even if he disagreed with it."

"PACIFISM. The majority of pacifists either belong to obscure religious sects or are simply humanitarians who object to the taking of life and prefer not to follow their thoughts beyond that point. But there is a minority of intellectual pacifists whose real though unadmitted motive appears to be hatred of western democracy and admiration of totalitarianism. Pacifist propaganda usually boils down to saying that one side is as bad as the other, but if one looks closely at the writings of younger intellectual pacifists, one finds that they do not by any means express impartial disapproval but are directed almost entirely against Britain and the United States."

Today many popular opinion leaders on the Left have a Manichean view of the world, but they have lost most of their preferred causes or heroes. Perhaps, because the Left is relatively powerless now, it is less likely to suffer from another critical disease which the Bush Administration is falling victim to with respect to Iraq, as well as other issues.

"Moreover, although endlessly brooding on power, victory, defeat, revenge, the nationalist is often somewhat uninterested in what happens in the real world. What he wants is to FEEL that his own unit is getting the better of some other unit, and he can more easily do this by scoring off an adversary than by examining the facts to see whether they support him. All nationalist controversy is at the debating-society level. It is always entirely inconclusive, since each contestant invariably believes himself to have won the victory. Some nationalists are not far from schizophrenia, living quite happily amid dreams of power and conquest which have no connection with the physical world. "

More than a year ago a senior White House official told Ron Susskind, whom he characterized as a member of the "reality-based community," that "We're an empire now, and we create our own reality." This is the classic fantasy of such nationalists in power, such as the Nazis, Stalinists, and Maoists, and Susskind apparently did not have the presence of mind or the bad manners to remind his interlocutor that reality has a nasty way of imposing itself sooner or later.

Orwell's whole essay, of course, prefigures 1984, which he probably already had in his head when he wrote it. That classic work really is based upon the fantasy of the "senior White House official" come true--the Party controls reality, because it can torture anyone into not only believing, but loving, Big Brother. It deals, really, with the eternal struggle among power lust, intellectual integrity, and sensuality, which in the character of Julia becomes an ally of Winston's rationalism against Party rule. Once again we come to the eternal drama of modern human life: our never-ending struggle to allow our brains to check our emotions. We are presently losing the battle, but we may take comfort that it shall never be entirely lost.

[p.s. Once again I invite those who have enjoyed this or any other post will take the opportunity to subscribe, below right, and receive notifications of every post.]

Saturday, December 03, 2005

Elections and Democracy

Elections, leading to democracy, are of course the centerpiece of the Bush Administration's policy in Iraq. Universal, equal voting has indeed become the only real source of legitimacy in the western world during the last two centuries, and remains one of the United States' greatest gifts to civilization. Yet the rich and varied history of democracy, both in the United States and elsewhere, shows that elections only contribute to true freedom and social peace within the context of an enduring consensus on fundamental questions and mutual respect across ethnic and regional lines. When consensus fails, elections merely reveal the extent of division with a society and can pave the way for civil war or the disintegration of the state. Meanwhile, developments both in the United States and Iraq are raising another question: how can an Administration promote true democracy abroad while trying to undermine it at home?

Nowadays, when the idea of the unstoppable, continuous advance of democracy has become conventional wisdom, we forget that its spread during the twentieth century, even in Europe, has been distinctly uneven. In the wake of the First World War all the new or enlarged states of Eastern Europe--Poland, the three Baltic states, Czechoslovakia, Hungary, Austria, Romania, Yugoslavia, Greece, and Bulgaria--began as democracies, but by the mid-1930s nearly all of them were under some form of military or authoritarian rule. (The same shift, of course, occurred in Italy in 1922 and Germany in 1933.) The case of Czechoslovakia, a state composed mainly of Czechs, Slovaks and Germans, was especially tragic and especially revealing. Originally the new state organized multi-ethnic political parties based upon economic principles or upon religion, but a revival of German nationalism during the 1930s had a dramatic effect. In 1935 the neo-Nazi Sudeten German Party, led by Konrad Henlein, swept the elections in the German districts, and began agitating for autonomy. Hitler adopted their cause in 1937-38 and used it to bring about the break-up of Czechoslovakia at the Munich crisis. The election of 1935, in short, had proven that the Sudeten Germans, as they were called, no longer wanted to live in a unified Czechoslovak state, and the international community accepted that verdict.
The story of the break-up of Czechoslovakia in 1938 and its subsequent history, together with developments in other parts of Europe through the twentieth century and continuing until today, is a sober reminder of a great failure of western civilization: our inability to devise political systems or ideologies that will enable members of different ethnic and religious groups to live together indefinitely in peace. (My book, Politics and War, discusses this at length.) When Nazi Germany fell in 1945, the Czechs convinced the Soviets and the western powers to put Czechoslovakia back together--but they also secured permission to expel the three million Sudeten Germans as punishment, in effect, for having broken the state up. (The displacement of more than ten million Germans from territory that was given to Poland and the Soviet Union in 1945, and from various Eastern European countries as well, was one of the greatest acts of ethnic cleansing in history.) And when in the early 1990s Czechoslovakia threw off the Soviet yoke, it became apparent that the Slovaks had never become accustomed to Czech domination either, and the belief of those who in the 1930s had argued that the state was a purely artificial construction was in effect borne out. The same thing happened, of course, at far greater human cost, in Yugoslavia.

In Iraq today, President Bush sees progress because of the increased Sunni participation in the referendum that approved the constitution, but the results of that election seem much more likely to break Iraq up than to democratize it. The Shi'ites and Kurds, having crafted a constitution that will allow them to set up quasi-independent states in the south and in thenorth, voted overwhelmingly for the constitution; the Sunnis, who still hope to rule a united Iraq, overwhelmingly rejected it, even though they barely failed to get the 2/3 negative vote in three provinces that would have sent the drafters back to the drawing board. The next round of elections on December 15 will probably confirm these results. Nothing suggests that the Sunnis will accept the disintegration of the country--or Shi'ite domination of a united Iraq--simply because they have been outvoted.

And thus, the coming elections, sadly, may resemble the American election that we would rather forget--the election of 1860. That election chose Abraham Lincoln by a large popular plurality--but it also showed that the break between the North and West on the one hand and the South on the other had become complete and irrevocable. Lincoln and Southern Democrat John Breckenridge won a total of 252 electoral votes (180 for Lincoln); centrist candidates Stephen Douglas and John Bell won 41. Secession and civil war followed immediately.
The situation in Iraq deeply disturbs the other Arab nations in the region because the Sunni-Shi'ite fault line threatens to tear apart many of the states created after the First World War, including Saudi Arabia, Lebanon, Bahrain, and others. That is the powder keg which the decision to remove Saddam Hussein is now igniting in Iraq, where civil war in mixed areas has already begun. Should the conflict spread, the Middle East will live in great turmoil for many years.
And meanwhile, the revelation that American military authorities have been paying Iraqi newspapers to print American-produced stories raises further doubts about the sincerity of the Bush Administration's democratic push. As many commentators have already noted, this policy, whether approved in Washington or not, clearly reflects the Administration's image of democracy, since they have been caught two or three times paying journalists within the United States (and since Fox News and Clear Channel function as propaganda arms of the Administration.) The Republicans run the Congress in defiance of democratic principles. House Democrats rarely can propose amendments to legislation, and the Republican leadership uses conference committees--originally designed to reconcile the two houses--to rewrite legislation in ways that neither house has approved. The Republicans went to the Supreme Court to bypass the will of the voters of Florida in 2000 and overruled career attorneys to get Tom Delay's Texas redistricting plan approved by the Justice Department, padding their majority. Democracy, to them, is a system to be manipulated to get a majority into power, to enable that majority to do whatever it wants. No one should be surprised that our public diplomacy is failing. The world can see through the product we are trying to sell.

Friday, December 02, 2005

More on Torture

A few weeks ago (see below, November 9) I reproduced a long exchange between Scott McClellan and the White House press corps on the subject of torture. Today there was another such exchange in which an intrepid reporter finally asked the key question which I raised then. Here it is.

Q I wanted to also follow up on Terry's questions about the reports of secret prisons, and the rationale for not saying to the American people whether or not such places exist. Do you feel it somehow gives away something to the enemy to confirm or deny the existence of these places?
MR. McCLELLAN: I think the American people understand the importance of us using all available tools to win the war on terrorism and to try to prevent attacks from happening in the first place. But it's important for people to understand, also, that we have laws and values and international obligations that we believe very strongly in, and that we adhere to. And that's why we're talking about those issues. There are some difficult issues that you have to address when you're facing a different kind of enemy in a different kind of war. And those are discussions that we'll continue to have.
We're having discussions with members of Congress on some of these issues. We're working together. We all have some shared priorities, and we're talking about issues to help us make sure that we're doing everything within our power to try to disrupt and prevent attacks from happening in the first place, while also acting in a way that is consistent with those laws and those values.

Q But my question has to do with whether or not you confirm the existence, regardless of what's happening there and what techniques are being used, whatever, how does that protect American security by not acknowledging --

MR. McCLELLAN: I'm not getting into confirming or denying anything. I think that when you're talking about -- I mean, some of the reports talk about people like Khalid Shaykh Muhammed and Bin al-Shibh. I mean, these are dangerous terrorists that have been responsible for the deaths of thousands of Americans. And I think the American people understand the importance of us getting valuable information that can help us to defeat the terrorists and prevent attacks from happening. This is about their safety and security.
But in terms of the issues related to this, yes, I think the American people understand the importance -- and this is not talking about any particular issue -- but they do understand the importance of the war on terrorism, of not talking about intelligence, because it could hurt our efforts to prevail.

[It does not seem to be an unfair interpretation of that paragraph to say the McClellan wants the world to know that we got important information by torturing Khalid Shaykh Muhammed and Bin-al-Shibh, and that we are glad that we did so, while denying that the Adminstration engages in torture.]

Q Scott, when you say, "using all available tools," and then you talk about laws, I think it is a little confusing for many of us Americans that all available tools means all available tools, if you won't confirm or deny the prisons overseas --

MR. McCLELLAN: No, I said consistent with our laws and our treaty obligations. The President has made it very clear that we do not torture, he would never condone torture or authorize the use of torture. If someone doesn't abide by our laws, they're held accountable, and we have done that.

That's the difference between us and others. When it comes to human rights, there is no greater leader than the United States of America, and we show that by holding people accountable when they break the law or they violate human rights. And we show that by supporting the advance of freedom and democracy and supporting those in countries that are having their human rights denied or violated, like North Korea. We show that by liberating people in Afghanistan and Iraq, some 50 million people. And no one has done more when it comes to human rights than the United States of America.

Q It's still not clear --

MR. McCLELLAN: And I think -- and I disagree with you. I think the American people understand. I disagree with your characterization that you think most Americans don't.
Q No, I'm not saying that. I think Americans certainly understand "all available tools," and understand the possibility of prisons overseas. I suppose my question really is, we still don't have a clear definition of what torture is. If we're going to stop imminent attacks --

MR. McCLELLAN: There are already laws on the books about torture that prevent -- that prohibit torture, and it spells out what those laws are and the treaty obligations. And we're parties to those treaties.

Q But, yet, it hasn't been possible to get from you a confirmation when we've been very specific about what specific things might or might not be torture, what they are.

MR. McCLELLAN: I'm not going to talk about national security intelligence matters. I'm just not going to get into talking about that.

The definition of torture, in short, is a "national security intelligence matter." The press works painfully slowly, and the time has come, one should think, for someone to quote to McClellan the Administration memo on the subject that defined it as techniques leading to organ failure or death and ask him if he approves of it.

Not wishing to be left behind in the contest for this year's Doublespeak Award, Alberto Gonzales yesterday discussed his predecessor John Ashcroft's decision to overrule the unanimous opinion of his career personnel, who concluded that Tom Delay's redistricting plan for Texas would illegally reduce minority representation, and approve it. From today's New York Times:

"Attorney General Alberto R. Gonzales defended approval of the plan, telling reporters on Friday morning that he was confident that the decision was correct. Conflicting views simply reflected a healthy deliberative process, Mr. Gonzales said.
"The plan, which had largely been developed by Representative Tom DeLay and which was subsequently upheld by a three-judge federal appeals court panel, led to Republicans' gaining five seats in the House in the election last year.
"Pointing to the court's acceptance, Mr. Gonzales said the skepticism of career lawyers did not 'mean that it was an incorrect decision.'
"'Ultimately, someone has to make a decision," he said. "We're not going to politicize decisions within the department.'"

No, heaven forbid.