[See below for a post on a fradulent email that has been circulating claiming falsely to be written by me.]
Like the change of seasons, world-historical events often seem to spring from nowhere. The overhwhelming vote in the House of Representatives last week to tax this year’s AIG bonuses at a rate of 90% will in my opinion turn out to be such an event, even if the Senate and the White House block this move. The vote obviously reflected a broad upsurge of popular (not just “populist”) sentiment, and it has sent established interests into a tizzy. Wall Street is threatening mass defections from the financial industry, economic writers like Joseph Nocera of the New York Times are complaining that we are focusing on the wrong issues, and Senate Republicans are trying to decide whether to filibuster if the measure reaches the floor. (I do not think that even they will have the guts to do so.) But in my opinion these commentators could not be more wrong. The bonuses raise issues that are central, not peripheral, to the origins of the economic crisis, and the resistance the tax proposals are encountering reflects Wall Street’s failure to realize that the era in which its denizens have made their fortunes and careers is over. Meanwhile, the passage, by a vote of more than three to one, of a bill proposing 90% tax rates suggests that the current economic crisis will indeed lead to a return to the truly redistributive tax policies under which the country thrived from the mid-1930s until the early 1980s. It’s about time.
Both bonuses and 90% marginal tax rates, I am proud to say, are issues that I have been talking about in various contexts for some years. My involvement with bonuses dates to 2003, when my late friend and Harvard classmate Bill Strauss told me that some of the managers of the Harvard Endowment were about to receive an annual bonus of as much as $35 million a year. That led us to start a protest campaign which was still continuing, and which, as I have noted here, has been tragically vindicated by the collapse of the value of the Harvard Endowment, which is now going to have to reduce its contribution to the annual budget by 8% in each of the next two years. Mounting that protest was a very educational experience.
To begin with, 95% of the members of the financial community with whom I discussed the subject—ranging from investment bankers I shared chair lifts with to classmates at our 40th reunion—told us that we were naïve and mistaken, and that the managers were so brilliant that they deserved everything they got. Michael Lewis, one of the nation’s more respected financial writers, made the same claim in print, and regretted that Harvard President Larry Summers, who, he said, knew “how the game was played,” was going to make some concessions to our position. On the other hand, I got a very moving letter from an older financial manager who supported us completely and provided some important new information. He noted that the bonuses were awarded not based on absolute performance, but on performance relative to benchmark indices—and he said that the indices that the managers had to outperform were notoriously easy to beat. That presumably is the same system that AIG and other leading financial institutions have been using, and explains why bonuses continue to flow even in the midst of the worst economic crisis in 80 years. They may not have done well, but the S & P indices have done worse. In its defense, Harvard also noted that the managers' contracts included clawback provisions that would force them to return money if gains did not hold up--but those provisions, too, it turns out, are only triggered by poorer performance than indices, not simply by a decline in asset values.
It occurred to me at the time, however, and it has become obvious now, that this system had a much deeper flaw. It was rewarding managers annually with increases of millions of dollars—sometimes tens of millions of dollars—simply for paper increases in the value of assets. And it had become criminally easy (literally), with the Federal Reserve and foreign creditors like the Chinese flooding our markets with cheap credit, to structure deals that would continually bid up the paper values of various assets, but which would not provide any guarantee of increased future income. Subprime mortgages were simply one more asset whose values could be bid up, and they allowed financial irresponsibility to reach new and catastrophic heights. (To be fair, the Harvard Endowment has not, so far as I know, invested heavily in mortgage-backed securities, but it did reportedly take advantage of some speculative bubbles in commodities such as timber and petroleum which have now led to huge losses.)
These practices, combined with reductions in income and capital gains taxes (including Charles Schumer’s beloved loophole that taxed the income of hedge fund managers as capital gains), created opportunities to make private fortunes that simply did not exist half a century ago—because in those days, the top marginal tax rate was indeed 91%. And now the consequences of cutting that rate by almost 2/3 are becoming clear, even though the full damage will take at least a decade, I suspect, to repair.
Fifty years ago, when Americans thought of the wealthy, they were more likely to think of the leaders of our enormous corporations than those of the tightly regulated financial and securities industry. The stock market, moreover, depended upon industrial performance, not the other way around. But with 91% marginal tax rates, it made no sense for the President of Ford Motor Company, for example, to award himself a bonus of $5 million for one year (the equivalent of perhaps $40 million today), because the government would immediately have taken almost all of it. That gave companies, obviously, a huge incentive to use profits to expand, to hire more worker (and create more management positions, and to pursue further growth—all steps that benefited the whole economy. The steady reduction of the top tax rate from 1964 through the 1980s, and then again after 2001, destroyed that incentive. And I cannot believe that it is a coincidence that during that very same period, companies began to focus on employing less, rather than more, workers—especially American workers. Every wage- or salary-earner they could eliminate freed more cash to hand out to the top executives at the end of the year, and that had become the goal of the enterprise. Meanwhile, the center of gravity of the economy shifted dramatically from industrial production and transportation to the financial sector, which became increasingly transnational. Producing widgets became sooooooooo 19th-century; inflating values made one a master of the universe.
The popular revolt that led to the passage of the House bill partly reflects justified resentment that any American actually believes he needs $10 million (or even $4 million) a year to do his job well or live in the style to which he has become accustomed. But the bill also means that we are starting to return to a tax structure based in effect on the 19th-century theories of Henry George, who thought all property sales ought to be taxed at a very high rate. George argued that a speculator who bought property for $10,000 and sold it for $50,000 did not deserve to keep the $40,000 increase because he had not created it: the increasing wealth of the society around him had, and the increase should be returned to society. Even in good times, our wealthiest fellow citizens are essentially enjoying the benefits of good luck, not simply the rewards of being superior. High marginal tax rates reflect that. Eventually the same resentment will target professional athletes and entertainers as well, and within twenty years, I predict, the highest marginal tax rates will have at least doubled to 70% for everyone.
As I write the Obama Administration is floundering, I regret to say, because its economic leadership is composed of mainstream economists who want to get things back to “normal” as quickly as possible. Readers can find a most eloquent discussion of this point here. The author of the piece is Jamie Galbraith, a maverick economist at th LBJ School of Public Affairs in Austin whose views, like many of mine, have suddenly been vindicated by events precisely because he, like me, never threw the intellectual and public-policy heritage of the first half of the twentieth century out the window to remain in sync with current trends. He also points out that the Administration’s relatively optimistic economic forecasts are use models based upon the experience of the last 60 years, which implicitly assume that the recession of 1981-3 represented the worst thing that could happen. I suppose that we should not be surprised by all this, or necessarily discouraged. Although FDR’s achievements were indeed substantial (another point Galbraith illustrates effectively), many of his initial experiments, including the NRA, did not work particularly well, and some of his most enduring achievements didn’t occur until the third and fourth years of his first Administration. The danger, of course, is that Obama could lose political momentum. Should the center of the political spectrum lose confidence in him the results could be catastrophic.
Our recurring 80-year crises cause tremendous pain, but they have been the occasion of the greatest changes in American life as well: the establishment of republican national government in the eighteenth century, the abolition of slavery in the 19th, and the government’s assumption of real responsibility for economic health and some redistributive justice in the twentieth. The twenty-first century, it seems, will be the occasion for two more such crises (although no one old enough to read this post is likely to live to see the second one.) The question is whether we can once again clear away enough of the accumulated dead wood from our national forest to let newer growth eventually thrive, as we did in 1861-8 and again in 1929-45, or whether our luck will run out and the entire forest will burn to the ground, as it did in France in 1789-99 or Russia in the great crisis that began in 1914. I think we can once again avoid catastrophe, but only at the expense of a great deal of conventional wisdom, both at home and abroad.
Saturday, March 21, 2009
Thursday, March 19, 2009
Fradulent Email
An email is circulating around the net which begins as follows:
David Kaiser Location: Jamestown , Rhode Island , United States
For the past thirty years I have been a historian of international and domestic politics, as well as an authority on some of the more famous criminal cases in American history. For the past four years I have been commenting on current events.
History Unfolding
I am a student of history. Professionally, I have written 15 books in six languages, and have studied it all my life. I think there is something monumentally large afoot, and I do not believe it is just a banking crisis, or a mortgage crisis, or a credit crisis. Yes these exist, but they are merely single facets on a very large gemstone that is only now coming into a sharper focus.
[The email then continues for several pages.]
The first two sentences, beginning, "For the past thirty years," were of course written by me; the rest of the email was not written by me. Its views are in many ways the opposite of my own. It is apparently some sort of conservative disinformation campaign, quite possibly the work of a single individual, designed to muddy the political waters by falsely attributing views to others. I obviously regret the deception.
David Kaiser Location: Jamestown , Rhode Island , United States
For the past thirty years I have been a historian of international and domestic politics, as well as an authority on some of the more famous criminal cases in American history. For the past four years I have been commenting on current events.
History Unfolding
I am a student of history. Professionally, I have written 15 books in six languages, and have studied it all my life. I think there is something monumentally large afoot, and I do not believe it is just a banking crisis, or a mortgage crisis, or a credit crisis. Yes these exist, but they are merely single facets on a very large gemstone that is only now coming into a sharper focus.
[The email then continues for several pages.]
The first two sentences, beginning, "For the past thirty years," were of course written by me; the rest of the email was not written by me. Its views are in many ways the opposite of my own. It is apparently some sort of conservative disinformation campaign, quite possibly the work of a single individual, designed to muddy the political waters by falsely attributing views to others. I obviously regret the deception.
Saturday, March 14, 2009
John Yoo's memo
The release two weeks ago of the memos written by John Yoo and other officials of the Office of Legal Counsel allow us to revisit some of the issues of presidential power that occupied so many of my posts last year. They also raise the question of what, if anything, can be done about abuses of power now, and what new steps the new Administration, which is moving slowly, may take. I am going to focus on the first, chronologically, of these memos, dated October 23, 2001, which dealt with the President's power to respond to an attack on the United States and the use of American military forces on American soil. It makes for a most interesting read.
Both the decision to enter a war and the design of its objectives and strategies have traditionally taken the United States years, or at the very least, quite a few months. I am now researching the Roosevelt Administration's 18 months of response to the fall of France in June 1940, during which officials struggled to find appropriate responses to a new situation, and to prepare to implement them. The Vietnam War, as I showed in American Tragedy, was debated for more than four years before LBJ finally took the plunge, and Woodrow Wilson took two years from the sinking of the Lusitania to get us into the First World War. This memo was produced only six weeks after September 11 but foresees a long struggle in some detail. Not surprisingly under the circumstances, its assumptions turn out to have been wrong--and not, surely, because of countermeasures which the Bush Administration took. But its authors were clearly less concerned with figuring out how to fight Al Queda than with embracing the extreme views of Presidential power that had been embraced by President Nixon during Watergate and (implicitly) by President Reagan at the time of Iran-Contra--and endorsed by Dick Cheney and David Addington in the minority report of the Iran-Contra Congressional committee.
The essential logical device employed by the memo is to begin with some rather commonplace and obvious observations, but follow them with an extraordinary leap for which the authors provided no real foundation at all. They begin by noting that the Founders created a national Army and Navy, although they do not mention that the framers, wary of a standing army, forbade any appropriation for an army that would last more than two years. The Army was designed, of course, for the protection of the new nation's frontiers against European nations and Indian tribes--more serious threats then than anything we face near to home today. And, they cite various precedents recognizing an executive power to use those troops autonomously in an emergency. And therein lies the rub.
No one, to my knowledge, has ever suggested that by granting the Congress the power "to declare war," the framers intended to deny the President or local commanders the right to respond at once to a surprise attack. And that seems very clearly to be the kind of situation the precedents quoted on pp. 7-10 of the opinion refer to: they relate, as the authors acknowledge, to the President's emergency powers. The President clearly had the right, for instance, to order the shooting down of a hijacked airliner on 9/11, if readiness and communications channels had given him the time to do so. But that is not the kind of situation the memo aimed at: it is designed instead to give the President complete authority to use the armed forces in any way that he sees fit for all time-including the power to anticipate threats and act pre-emptively. Although the authors, of course, do not bother to say so, their views would reduce the grant to Congress of the power to declare war to a nullity--and that was undoubtedly their intention. It is equally striking that the claim of such powers was not necessary, in the wake of 9/11, for the President to do anything that he wanted to do. The Congress, in an unfortunate moment of panic, had given him the power to employ military force literally anywhere in the world where he thought it necessary for the sake of the war on terror. If the President in late 2001 had identified a terrorist cell in some part of London which in his opinon could only be reliably eliminated with a nuclear weapon, he had the power to set it off. The Congressional resolution authorized him "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."
The history of the origins of the Bush Administration's policies will not be written for many years, but the memo indicates that some of its leading figures had in fact been focused on these questions for years before 9/11. Thus writings cited in support of these positions include legal articles (as opposed to actual opinions by the federal courts) by John C. Yoo, "The Continuation of Politics by Other Means: The Original Understanding of War Powers," 84 Cal. L. Rev. 167,196-241(1996), and the even more influential Lewis ("Scooter") Libby, "Legal Authority for a Domestic Military Role in Homeland Defense," in Sidney D. Drell, Abraham D. Sofaer, & George D. Wilson (eds.), The New Terror: Facing the Threat of Biological and Chemical Weapons 305, 305(1999).
The bulk of the memo deals with the question of using the military at home--and here, only six weeks into the war on terror, the authors seemed to have very extensive plans in mind. This passage tells us what kind of operations they envisioned.
"Because the scale of the violence involved in this conflict removes it from the sphere of operations designed to enforce the criminal laws, legal and constitutional rules regulating law enforcement activity are not applicable, or at least not mechanically so. As a result, the uses of force contemplated in this conflict are unlike those that have occurred in America's other recent wars. Such uses might include, for example, targeting and destroying a hijacked civil aircraft in circumstances indicating that hijackers intended to crash the aircraft into a populated area; deploying troops and military equipment to monitor and control the flow of traffic into a city; attacking civilian targets, such as apartment buildings, offices, or ships where suspected terrorists were thought to be; and employing electronic surveillance methods more powerful and sophisticated than those available to law enforcement agencies. These military operations, taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law."
Even Israel, the nation most consistently threatened by terrorist action, does not use its military to destroy buildings or neighborhoods within Israel itself because of suspicions that they might harbor terrorists. The section of the memo authorizing the use of the military to fight the war on terror at home, however, is only a prelude to another purpose: a claim of the power to suspend most of the Bill of Rights for the same purpose. Although that section purports to deal with the Fourth Amendment, it cites previous claims, sometimes put into practice, to seize property, detain citizens, and restrict free speech because of a wartime emergency. (These appear to include the detention of Japanese-Americans during the Second World War, entirely validating fears expressed by Arab Americans in the months after September 11 that something similar might happen to them.) The authors argue explicitly that the need to win the war trumps any constitutional protections, even when they bring themselves to mention Ex Parte Milligan, which assured citizens their constitutional rights, including habeas corpus and trial by jury, even in the midst of a civil war:
"This is not, of course, to say that war suspends constitutional civil liberties. See, e.g.. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 124 (1866). But the Court has also found it '"obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig, 453 U.S. at 307 (citation omitted), and has interpreted and applied constitutional protections to accommodate that overriding need. Here, we believe that the Constitution, properly interpreted, allows the President as Commander in Chief, and the forces under his control to use military force against foreign enemies who operate on American soil, free from the constraints of the Fourth Amendment." They do not mention that Ex Parte Milligan, which I discussed at great length several years ago here, specifically addressed that very point, arguing effectively that the Civil War itself proved that the nation could indeed secure its existence without suspending constitutional guarantees. Going further, the authors made an end run around the Exclusionary Rule (now threatened by new Supreme Court decisions handed down with the help of Bush's appointees), by arguing that evidence secured by warrantless searches undertaken by military forces should also be available for criminal prosecutions.
As it turned out, none of this took place--in large part, I am coming to believe, because Osama Bin Laden's spectacular attack on the US served his purposes too well to require any attempt to repeat it. Bin Laden, I am now inclined to believe, never had any real intention of bringing down the United States. His real enemies from the beginning have been the American client regimes in his own region, led by the rulers of his own Saudi Arabia. To weaken those regimes he wanted to bring American military forces into the heart of the Middle East, and he did so. While he has not, apparently, had any substantial success in his home country, his allies have made a comeback in Afghanistan, they are now threatening nuclear-armed Pakistan, and Iraq remains an open sore, despite the decline in violence. While he might not have been able to perpetrate a new attack on the scale of 9/11, he surely could have done something, had that been his intention, in the eight years that followed. (The danger is probably increasing now, since the new Administration seems to want to reduce our overall military involvement in the Middle East.)
Yet this memo leaves no doubt, frankly, that the Bush Administration contemplated using 9/11 the way Nazi Germany used the Reichstag fire: effectively to suspend American liberties for an indefinite period of time. They did not do so for many reasons, including the lack of further provocation within the United States. That leaves the question of whether the authors of the memo, and Administration officials, deserve judicial punishment both for these assertions of power and for the extra-legal steps, including torture, that they authorized. After a good deal of reflection I am inclined to rise above some of my feelings and conclude that the answer is no.
One could argue that John Yoo, David Addington, Dick Cheney and many others were part of a conspiracy to subvert international law and the Constitution of the United States. However, a leading authority on criminal law assures me that such a case would be extremely difficult to win. Federal criminal law--in sharp contrast to the precedents which the U.S. helped establish at Nuremberg--lays great emphasis on the need to punish only crimes that were knowingly committed. Even though it is obvious that Yoo and his colleagues were determined to give their superiors just what they wanted, those superiors acted on advice from counsel, a defense which apparently is often effective in federal court. It seems to me highly questionable to propose prosecuting the lawyers who gave the advice, while leaving the actual perpetrators who acted on it alone. And in any case, the broad outlines of what the Bush Administration was doing were well known for several years. The Constitution prescribes the penalty of impeachment for serious executive misconduct--and the Congress declined even to try to implement it. Yes, future generations will shake their heads when they realize that while Bill Clinton was impeached (but not convicted) for refusing to acknowledge an act of oral sex, George W. Bush suffered no penalty for serious violations of international law. The reason is generational: the Boomer-dominated Republican House majority of 1999 would stop at nothing to get the President, while the Silent generation leadership of the Democrats in 2007-8 wanted to get on with the business of the country. Law can never be applied blindly. International courts may take a different view. I have been reliably informed that several years ago a German judge was only dissuaded from charging Donald Rumsfeld with war crimes by the intervention of the German government. But it seems we shall have to accept the events of the last eight years as proof of Jefferson and Madison's prediction in their correspondence over a Bill of Rights, that government in times of crisis would always find ways around whatever was written into the Constitution. Jefferson, however, noted that codifying restrictions upon the government would make it easier to restore liberty when the crisis was over, and we may once again hope that he was right.
Both the decision to enter a war and the design of its objectives and strategies have traditionally taken the United States years, or at the very least, quite a few months. I am now researching the Roosevelt Administration's 18 months of response to the fall of France in June 1940, during which officials struggled to find appropriate responses to a new situation, and to prepare to implement them. The Vietnam War, as I showed in American Tragedy, was debated for more than four years before LBJ finally took the plunge, and Woodrow Wilson took two years from the sinking of the Lusitania to get us into the First World War. This memo was produced only six weeks after September 11 but foresees a long struggle in some detail. Not surprisingly under the circumstances, its assumptions turn out to have been wrong--and not, surely, because of countermeasures which the Bush Administration took. But its authors were clearly less concerned with figuring out how to fight Al Queda than with embracing the extreme views of Presidential power that had been embraced by President Nixon during Watergate and (implicitly) by President Reagan at the time of Iran-Contra--and endorsed by Dick Cheney and David Addington in the minority report of the Iran-Contra Congressional committee.
The essential logical device employed by the memo is to begin with some rather commonplace and obvious observations, but follow them with an extraordinary leap for which the authors provided no real foundation at all. They begin by noting that the Founders created a national Army and Navy, although they do not mention that the framers, wary of a standing army, forbade any appropriation for an army that would last more than two years. The Army was designed, of course, for the protection of the new nation's frontiers against European nations and Indian tribes--more serious threats then than anything we face near to home today. And, they cite various precedents recognizing an executive power to use those troops autonomously in an emergency. And therein lies the rub.
No one, to my knowledge, has ever suggested that by granting the Congress the power "to declare war," the framers intended to deny the President or local commanders the right to respond at once to a surprise attack. And that seems very clearly to be the kind of situation the precedents quoted on pp. 7-10 of the opinion refer to: they relate, as the authors acknowledge, to the President's emergency powers. The President clearly had the right, for instance, to order the shooting down of a hijacked airliner on 9/11, if readiness and communications channels had given him the time to do so. But that is not the kind of situation the memo aimed at: it is designed instead to give the President complete authority to use the armed forces in any way that he sees fit for all time-including the power to anticipate threats and act pre-emptively. Although the authors, of course, do not bother to say so, their views would reduce the grant to Congress of the power to declare war to a nullity--and that was undoubtedly their intention. It is equally striking that the claim of such powers was not necessary, in the wake of 9/11, for the President to do anything that he wanted to do. The Congress, in an unfortunate moment of panic, had given him the power to employ military force literally anywhere in the world where he thought it necessary for the sake of the war on terror. If the President in late 2001 had identified a terrorist cell in some part of London which in his opinon could only be reliably eliminated with a nuclear weapon, he had the power to set it off. The Congressional resolution authorized him "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."
The history of the origins of the Bush Administration's policies will not be written for many years, but the memo indicates that some of its leading figures had in fact been focused on these questions for years before 9/11. Thus writings cited in support of these positions include legal articles (as opposed to actual opinions by the federal courts) by John C. Yoo, "The Continuation of Politics by Other Means: The Original Understanding of War Powers," 84 Cal. L. Rev. 167,196-241(1996), and the even more influential Lewis ("Scooter") Libby, "Legal Authority for a Domestic Military Role in Homeland Defense," in Sidney D. Drell, Abraham D. Sofaer, & George D. Wilson (eds.), The New Terror: Facing the Threat of Biological and Chemical Weapons 305, 305(1999).
The bulk of the memo deals with the question of using the military at home--and here, only six weeks into the war on terror, the authors seemed to have very extensive plans in mind. This passage tells us what kind of operations they envisioned.
"Because the scale of the violence involved in this conflict removes it from the sphere of operations designed to enforce the criminal laws, legal and constitutional rules regulating law enforcement activity are not applicable, or at least not mechanically so. As a result, the uses of force contemplated in this conflict are unlike those that have occurred in America's other recent wars. Such uses might include, for example, targeting and destroying a hijacked civil aircraft in circumstances indicating that hijackers intended to crash the aircraft into a populated area; deploying troops and military equipment to monitor and control the flow of traffic into a city; attacking civilian targets, such as apartment buildings, offices, or ships where suspected terrorists were thought to be; and employing electronic surveillance methods more powerful and sophisticated than those available to law enforcement agencies. These military operations, taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law."
Even Israel, the nation most consistently threatened by terrorist action, does not use its military to destroy buildings or neighborhoods within Israel itself because of suspicions that they might harbor terrorists. The section of the memo authorizing the use of the military to fight the war on terror at home, however, is only a prelude to another purpose: a claim of the power to suspend most of the Bill of Rights for the same purpose. Although that section purports to deal with the Fourth Amendment, it cites previous claims, sometimes put into practice, to seize property, detain citizens, and restrict free speech because of a wartime emergency. (These appear to include the detention of Japanese-Americans during the Second World War, entirely validating fears expressed by Arab Americans in the months after September 11 that something similar might happen to them.) The authors argue explicitly that the need to win the war trumps any constitutional protections, even when they bring themselves to mention Ex Parte Milligan, which assured citizens their constitutional rights, including habeas corpus and trial by jury, even in the midst of a civil war:
"This is not, of course, to say that war suspends constitutional civil liberties. See, e.g.. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 124 (1866). But the Court has also found it '"obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig, 453 U.S. at 307 (citation omitted), and has interpreted and applied constitutional protections to accommodate that overriding need. Here, we believe that the Constitution, properly interpreted, allows the President as Commander in Chief, and the forces under his control to use military force against foreign enemies who operate on American soil, free from the constraints of the Fourth Amendment." They do not mention that Ex Parte Milligan, which I discussed at great length several years ago here, specifically addressed that very point, arguing effectively that the Civil War itself proved that the nation could indeed secure its existence without suspending constitutional guarantees. Going further, the authors made an end run around the Exclusionary Rule (now threatened by new Supreme Court decisions handed down with the help of Bush's appointees), by arguing that evidence secured by warrantless searches undertaken by military forces should also be available for criminal prosecutions.
As it turned out, none of this took place--in large part, I am coming to believe, because Osama Bin Laden's spectacular attack on the US served his purposes too well to require any attempt to repeat it. Bin Laden, I am now inclined to believe, never had any real intention of bringing down the United States. His real enemies from the beginning have been the American client regimes in his own region, led by the rulers of his own Saudi Arabia. To weaken those regimes he wanted to bring American military forces into the heart of the Middle East, and he did so. While he has not, apparently, had any substantial success in his home country, his allies have made a comeback in Afghanistan, they are now threatening nuclear-armed Pakistan, and Iraq remains an open sore, despite the decline in violence. While he might not have been able to perpetrate a new attack on the scale of 9/11, he surely could have done something, had that been his intention, in the eight years that followed. (The danger is probably increasing now, since the new Administration seems to want to reduce our overall military involvement in the Middle East.)
Yet this memo leaves no doubt, frankly, that the Bush Administration contemplated using 9/11 the way Nazi Germany used the Reichstag fire: effectively to suspend American liberties for an indefinite period of time. They did not do so for many reasons, including the lack of further provocation within the United States. That leaves the question of whether the authors of the memo, and Administration officials, deserve judicial punishment both for these assertions of power and for the extra-legal steps, including torture, that they authorized. After a good deal of reflection I am inclined to rise above some of my feelings and conclude that the answer is no.
One could argue that John Yoo, David Addington, Dick Cheney and many others were part of a conspiracy to subvert international law and the Constitution of the United States. However, a leading authority on criminal law assures me that such a case would be extremely difficult to win. Federal criminal law--in sharp contrast to the precedents which the U.S. helped establish at Nuremberg--lays great emphasis on the need to punish only crimes that were knowingly committed. Even though it is obvious that Yoo and his colleagues were determined to give their superiors just what they wanted, those superiors acted on advice from counsel, a defense which apparently is often effective in federal court. It seems to me highly questionable to propose prosecuting the lawyers who gave the advice, while leaving the actual perpetrators who acted on it alone. And in any case, the broad outlines of what the Bush Administration was doing were well known for several years. The Constitution prescribes the penalty of impeachment for serious executive misconduct--and the Congress declined even to try to implement it. Yes, future generations will shake their heads when they realize that while Bill Clinton was impeached (but not convicted) for refusing to acknowledge an act of oral sex, George W. Bush suffered no penalty for serious violations of international law. The reason is generational: the Boomer-dominated Republican House majority of 1999 would stop at nothing to get the President, while the Silent generation leadership of the Democrats in 2007-8 wanted to get on with the business of the country. Law can never be applied blindly. International courts may take a different view. I have been reliably informed that several years ago a German judge was only dissuaded from charging Donald Rumsfeld with war crimes by the intervention of the German government. But it seems we shall have to accept the events of the last eight years as proof of Jefferson and Madison's prediction in their correspondence over a Bill of Rights, that government in times of crisis would always find ways around whatever was written into the Constitution. Jefferson, however, noted that codifying restrictions upon the government would make it easier to restore liberty when the crisis was over, and we may once again hope that he was right.
Friday, March 06, 2009
Bringing reason back?
The role of rationality in human behavior has been a theme of these commentaries from the beginning and seems likely to remain so. I have been fascinated with it, in one way or another, since the beginning of my historical studies. Most wars, I have had occasion to conclude in several books, were fought to achieve goals that would not have justified their costs, even in the cases where they were achievable at all. The idea that the accumulation of data could yield scientifically valid conclusions about human behavior—an idea that became so popular in the late nineteenth century—faded into the background, not least in my own historical profession, in the twentieth. And during the last thirty years our political life has been dominated by a growing air of unreality. The Bush aide who told Ron Susskind in 2003 that the United States was now an empire and created its own reality was merely being honest about the process by which the Republican ascendancy had been established. Very little of what Republicans say about Ronald Reagan, for instance, is true: he did not cut taxes, his Presidency taken as a whole was not an era of unusual economic growth, and he probably made no more than a marginal contribution to ending the cold war. But Republicans have shifted the terms of public debate a long way to the right and their triumph is still visible in today’s newspapers.
“Opponents of President Obama’s proposal for a sweeping new government activism in the economy,” the Times of February 28 noted, “call it a return to a traditional tax-and-spend philosophy, a step back to the era of Lyndon B. Johnson.” Heaven forbid that we should go back to an era in which federal deficits were a negligible proportion of GNP (and disappeared entirely in Johnson’s last budget, at the height of the Vietnam War); when Americans saved 8.6 % of their income and spent 1.78% of it on interest payments, rather than saving less than half a percent of their income and spent 2.25% of it on interest, as they did in 2007; when states spent far more on their university systems than on their prison systems, priorities which have now been reversed even in some of our largest states; when the trade deficit, though already a source of some concern, was probably less than one-tenth of what it is today in real terms; and when we had the world’s leading industrial economy. Perhaps Republicans remember the Johnson Administration as an American nadir because it did represent the low point in their political fortunes; only once, in 1936, has a Republican presidential candidate performed as badly as Barry Goldwater in 1964, and the Democrats had enormous majorities in Congress. There is no reason, however, for average Americans to think of that era in the same way.
So what emotions, exactly, have been more powerful than reason? The Boom generation is above all an emotional generation, determined since the mid-1960s to get in touch with the deepest, most instinctual human feelings with the help of freer music and freer sex. All of that was a perfectly natural reaction to the antiseptic world of the mid-20th century—but why did it coincide with a swing to the Right? What emotions have driven our politics? One, undoubtedly is fear—the fear of certain feelings, especially sexual ones, which pervades large swathes of our society even today. Another, of course, is greed. But perhaps the single most important is the competitive instinct that more than anything else has driven our politics. Republican political consultants in the 1970s and 1980s, led by Richard Viguerie, gleefully built a coalition based upon resentment, from white southerners’ resentment of the civil rights movement to religious conservatives’ resentment of women’s and gay rights—and better-off Americans’ resentment of taxes. Conservative intellectuals, angry at their exclusion from much of the media and university life, showed no compunction about alliances with religious fundamentalists. All this served one purpose: to win. And just as Japan and Germany in 1939-41 never seriously analyzed whether expansionist wars could actually solve their economic problems, the Republican leadership never felt it necessary to think about the consequences of heightening social resentments, creating endless deficits, and undertaking very dubious wars—because these things helped them win elections. John Diullio and Paul O’Neill, the first two Bush Administration officials to leave their posts and spill the beans, were serious conservatives—and they were shocked by the complete lack of interest within the White House in anything but politics. More recently Scott McClellan revealed that after 9/11, all Karl Rove could talk about was how the new situation could be used to win the elections of 2002 and 2004. Winning wasn’t everything, it was the only thing.
My comparison with Germany and Japan may offend some people but it actually reflects the enduring strength of our society. Yes—and I don’t think anyone who watches Alexandra Pelosi’s HBO documentary, Right America, could doubt this—we have enough resentment abroad in the land to have created some kind of totalitarian movement. Human nature being what it is, we should not be surprised. But thanks to the Founding Fathers, our struggle has been carried out at the ballot box (albeit with the help of some major irregularities in 2000), not with terror and intimidation. The Boomers have done enormous damage, but not so much as their fellow Prophet generation the Transcendentals (born from the early 1790s to the early 1820s), who gave us the Civil War. And now we have elected a President who is consciously trying to leave behind the excesses of the last 40 years: to base his policies on rational analysis, to reject crass emotional appeals, and to show Americans that government can play a key role in their lives. It is no wonder that the opposition feels so threatened; their whole world view is indeed at stake.
The President’s handling of the Iraq withdrawal which he announced on February 27 seems characteristic of his overall approach. Lincoln for nearly 18 months enraged northern abolitionists by failing to make slavery the key issue of the civil war but issued the Emancipation Proclamation at a critical moment in late 1862. Obama will take about the same time to withdraw our combat brigades from Iraq, but he has stated, critically, that a complete withdrawal will follow a year later. His speech at Camp LeJeune was somewhat reminiscent of de Gaulle’s approach to Algeria: he announced that, having achieved our major objectives, we could let the Iraqis take charge of their destiny, recognizing that the process would be a difficult one. While recognizing that we will take time to get to the finish line, he left no doubt of the goal. It’s a welcome contrast to the Bush Administration, which for six years continually promised dramatic results in Iraq within six months.
Sadly, we must not expect the era of extreme partisanship to come to an end. The first research paper I wrote in graduate school involved reading through the Congressional Record at the very end of the last Crisis, in 1944-6. Partisan debate then was far more acrimonious than it was in 1971, when I was doing the research. The Congress included everything from bigots and anti-Semites from the South on the one hand to one or two actual Communists from the Northwest on the other, and they spoke to one another in blunt language. It will be another 25 years, probably, before the Congressional civility of the 1954-80 period returns. And by then, all America will be more than ready for it.
“Opponents of President Obama’s proposal for a sweeping new government activism in the economy,” the Times of February 28 noted, “call it a return to a traditional tax-and-spend philosophy, a step back to the era of Lyndon B. Johnson.” Heaven forbid that we should go back to an era in which federal deficits were a negligible proportion of GNP (and disappeared entirely in Johnson’s last budget, at the height of the Vietnam War); when Americans saved 8.6 % of their income and spent 1.78% of it on interest payments, rather than saving less than half a percent of their income and spent 2.25% of it on interest, as they did in 2007; when states spent far more on their university systems than on their prison systems, priorities which have now been reversed even in some of our largest states; when the trade deficit, though already a source of some concern, was probably less than one-tenth of what it is today in real terms; and when we had the world’s leading industrial economy. Perhaps Republicans remember the Johnson Administration as an American nadir because it did represent the low point in their political fortunes; only once, in 1936, has a Republican presidential candidate performed as badly as Barry Goldwater in 1964, and the Democrats had enormous majorities in Congress. There is no reason, however, for average Americans to think of that era in the same way.
So what emotions, exactly, have been more powerful than reason? The Boom generation is above all an emotional generation, determined since the mid-1960s to get in touch with the deepest, most instinctual human feelings with the help of freer music and freer sex. All of that was a perfectly natural reaction to the antiseptic world of the mid-20th century—but why did it coincide with a swing to the Right? What emotions have driven our politics? One, undoubtedly is fear—the fear of certain feelings, especially sexual ones, which pervades large swathes of our society even today. Another, of course, is greed. But perhaps the single most important is the competitive instinct that more than anything else has driven our politics. Republican political consultants in the 1970s and 1980s, led by Richard Viguerie, gleefully built a coalition based upon resentment, from white southerners’ resentment of the civil rights movement to religious conservatives’ resentment of women’s and gay rights—and better-off Americans’ resentment of taxes. Conservative intellectuals, angry at their exclusion from much of the media and university life, showed no compunction about alliances with religious fundamentalists. All this served one purpose: to win. And just as Japan and Germany in 1939-41 never seriously analyzed whether expansionist wars could actually solve their economic problems, the Republican leadership never felt it necessary to think about the consequences of heightening social resentments, creating endless deficits, and undertaking very dubious wars—because these things helped them win elections. John Diullio and Paul O’Neill, the first two Bush Administration officials to leave their posts and spill the beans, were serious conservatives—and they were shocked by the complete lack of interest within the White House in anything but politics. More recently Scott McClellan revealed that after 9/11, all Karl Rove could talk about was how the new situation could be used to win the elections of 2002 and 2004. Winning wasn’t everything, it was the only thing.
My comparison with Germany and Japan may offend some people but it actually reflects the enduring strength of our society. Yes—and I don’t think anyone who watches Alexandra Pelosi’s HBO documentary, Right America, could doubt this—we have enough resentment abroad in the land to have created some kind of totalitarian movement. Human nature being what it is, we should not be surprised. But thanks to the Founding Fathers, our struggle has been carried out at the ballot box (albeit with the help of some major irregularities in 2000), not with terror and intimidation. The Boomers have done enormous damage, but not so much as their fellow Prophet generation the Transcendentals (born from the early 1790s to the early 1820s), who gave us the Civil War. And now we have elected a President who is consciously trying to leave behind the excesses of the last 40 years: to base his policies on rational analysis, to reject crass emotional appeals, and to show Americans that government can play a key role in their lives. It is no wonder that the opposition feels so threatened; their whole world view is indeed at stake.
The President’s handling of the Iraq withdrawal which he announced on February 27 seems characteristic of his overall approach. Lincoln for nearly 18 months enraged northern abolitionists by failing to make slavery the key issue of the civil war but issued the Emancipation Proclamation at a critical moment in late 1862. Obama will take about the same time to withdraw our combat brigades from Iraq, but he has stated, critically, that a complete withdrawal will follow a year later. His speech at Camp LeJeune was somewhat reminiscent of de Gaulle’s approach to Algeria: he announced that, having achieved our major objectives, we could let the Iraqis take charge of their destiny, recognizing that the process would be a difficult one. While recognizing that we will take time to get to the finish line, he left no doubt of the goal. It’s a welcome contrast to the Bush Administration, which for six years continually promised dramatic results in Iraq within six months.
Sadly, we must not expect the era of extreme partisanship to come to an end. The first research paper I wrote in graduate school involved reading through the Congressional Record at the very end of the last Crisis, in 1944-6. Partisan debate then was far more acrimonious than it was in 1971, when I was doing the research. The Congress included everything from bigots and anti-Semites from the South on the one hand to one or two actual Communists from the Northwest on the other, and they spoke to one another in blunt language. It will be another 25 years, probably, before the Congressional civility of the 1954-80 period returns. And by then, all America will be more than ready for it.
Friday, February 27, 2009
Republican disintegration
For the last thirty years or so the Republican Party has been engaged in a relentless and effective propaganda campaign designed to secure general assent to certain principles. Government is bad; taxes are bad; elites are contemptible; revealed religion is the only legitimate source of truth and morality; and force is the solution to every foreign policy problem--that list comes pretty close to summing it up. They have been far more militant and far more effective that liberal Democrats, it seems to me, because the latter, coming off of nearly a half-century of power, took their fundamental ideas (especially in the economic sphere) for granted and thought that the country--at least the educated part of it--did the same. (They also forgot that the appeal of their beliefs in the country at large--especially their belief in economic justice--required concrete steps to make it a reality.) Educated Republicans either became Democrats (a very significant phenomenon in the wealthier parts of the country) or pandered with increasing shamelessness to their less educated voters. Nor should we forget that intraparty thought control has been even more rigorous. Grover Norquist, the NRA, and the anti-abortion movement have made it harder and harder for centrists and liberals to remain Republicans, ultimately creating the extraordinary situation we now face, in which just three Republican Senators and not one Republican Representative are willing to vote with President Obama as he tries to cope with the greatest crisis since the Depression or the Second World War.
Alas, this long-term campaign has had another effect: every Republican under 45--that is, every one too young to have vivid memories of any Republican before Ronald Reagan--really believes all that crap, as one Southern Senator famously said of another during a filibuster against civil rights in the 1950s. The conservative CFAC powow in Washington this week argued that the Party's problem was not too much "conservatism," but too little. The party had not run a real anti-government candidate, at least for President--that's why the people did not vote for them. Young Bobby Jindal actually believed he use Katrina as an example of the problem of too much government. Just five weeks into the Obama Administration--which is showing a rapid-response capability at least equal to that of FDR in 1933--the Republicans, echoing their ancestors of the 1930s and 1940s, are in effect arguing against any hint of "me-too" Republicanism. Support for the President, Rush Limbaugh explains daily, betrays the party's principles, which of course, in his opinion, are the only real American principles.
All this is going to have consequences. Everyone knew the stimulus package had to pass, but the same cannot be said for many of the long-term reforms the President has now announced, including health care. Republicans in the 1930s never tried to filibuster against New Deal legislation; now Republican filibusters against any significant legislation are taken for granted. Health care will be a very tough sell. The President has decided not to ask for the immediate repeal of the Bush Administration's high-bracket tax cuts, but to let them lapse in two years--a frustrating choice, but a wise one politically. Shockingly, with large parts of Mexico degenerating into anarchy with the help of assault weapons purchased over the border, Nancy Pelosi doesn't want to risk a vote on re-instituting the ban on those weapons that President Bush allowed to lapse. I believe the Republican stance will very likely lead to an almost unimaginable landslide in November 2010, but there is meanwhile a great deal of work to be done.
The conservative Republican lobby on foreign policy is not likely to remain quiet either, but oddly, it seems to me that neoconservatives are going to turn out to be rather toothless politically compared to the NRA and the anti-tax lobby. Sizing up what the opposition is doing, I checked the Weekly Standard website today and discovered a long piece on the Israeli-Palestinian question by my distinguished Harvard classmate, Elliot Abrams. Like another pardoned Iran-Contra veterans, he was immediately hired by the Bush Administration in a non-confirmable job, and spent the last eight years at the NSC. His piece was revealing: it was an attack on peace talks designed to bring about a two-state solution between Israelis and Palestinians. President Bush, he argues, was right to argue in 2002 that such a solution depended upon change among the Palestinians--change which has not met his standards. The piece makes clear that Abrams must have opposed the whole Annapolis initiative, which was presumably a sop to Condi Rice and the State Department but which was bound to fail anyway, as indeed it did. In fact, Abrams suggests that the Palestinians have proven themselves incapable of responsible statehood and suggests junking the two-state solution altogether and restoring Gaza and the Arab West Bank to Egyptian and Jordanian control, respectively. I suspect, however, that these will remain fringe positions. On Iraq the President has compromised. The withdrawal timetable drew the ire of Kenneth Pollack in the New York Times, the Democratic foreign policy analyst who did so much to help bring about the Iraq war in the first place with his bloodcurdling 2002 book, The Threatening Storm, making it clear that Saddam was on the verge of a nuclear capability; but I cannot believe there is any large constituency that will be upset by it or even particularly disturbed if things go badly. (The danger of an Arab-Kurdish conflict seems to be increasing.) Afghanistan and Pakistan are a different matter, but they are not likely to arouse much public ire either no matter what happens.
It is not at all clear what the Administration intends for the Middle East, but an interesting straw is bending in the wind. Secretary of State Clinton has drawn blasts from several conservative American Jewish leaders for having protested Israeli delays of humanitarian aid for Gaza. It is hard to believe that that alone would have prompted cries of betrayal so quickly. Hamas and Fatah are working on creating a unity government, one which would give the Administration the opportunity to face reality with respect to Hamas, rather than to write it off (as Abrams and one of her critics do) as a cat's paw for Iran, now cast (by Benjamin Netanyahu, too) as the Nazi Germany of the twentieth century, determined to unleash a world war. President Obama seems determined to face every long-standing issue squarely, and that could apply to the Middle East, as well.
Alas, this long-term campaign has had another effect: every Republican under 45--that is, every one too young to have vivid memories of any Republican before Ronald Reagan--really believes all that crap, as one Southern Senator famously said of another during a filibuster against civil rights in the 1950s. The conservative CFAC powow in Washington this week argued that the Party's problem was not too much "conservatism," but too little. The party had not run a real anti-government candidate, at least for President--that's why the people did not vote for them. Young Bobby Jindal actually believed he use Katrina as an example of the problem of too much government. Just five weeks into the Obama Administration--which is showing a rapid-response capability at least equal to that of FDR in 1933--the Republicans, echoing their ancestors of the 1930s and 1940s, are in effect arguing against any hint of "me-too" Republicanism. Support for the President, Rush Limbaugh explains daily, betrays the party's principles, which of course, in his opinion, are the only real American principles.
All this is going to have consequences. Everyone knew the stimulus package had to pass, but the same cannot be said for many of the long-term reforms the President has now announced, including health care. Republicans in the 1930s never tried to filibuster against New Deal legislation; now Republican filibusters against any significant legislation are taken for granted. Health care will be a very tough sell. The President has decided not to ask for the immediate repeal of the Bush Administration's high-bracket tax cuts, but to let them lapse in two years--a frustrating choice, but a wise one politically. Shockingly, with large parts of Mexico degenerating into anarchy with the help of assault weapons purchased over the border, Nancy Pelosi doesn't want to risk a vote on re-instituting the ban on those weapons that President Bush allowed to lapse. I believe the Republican stance will very likely lead to an almost unimaginable landslide in November 2010, but there is meanwhile a great deal of work to be done.
The conservative Republican lobby on foreign policy is not likely to remain quiet either, but oddly, it seems to me that neoconservatives are going to turn out to be rather toothless politically compared to the NRA and the anti-tax lobby. Sizing up what the opposition is doing, I checked the Weekly Standard website today and discovered a long piece on the Israeli-Palestinian question by my distinguished Harvard classmate, Elliot Abrams. Like another pardoned Iran-Contra veterans, he was immediately hired by the Bush Administration in a non-confirmable job, and spent the last eight years at the NSC. His piece was revealing: it was an attack on peace talks designed to bring about a two-state solution between Israelis and Palestinians. President Bush, he argues, was right to argue in 2002 that such a solution depended upon change among the Palestinians--change which has not met his standards. The piece makes clear that Abrams must have opposed the whole Annapolis initiative, which was presumably a sop to Condi Rice and the State Department but which was bound to fail anyway, as indeed it did. In fact, Abrams suggests that the Palestinians have proven themselves incapable of responsible statehood and suggests junking the two-state solution altogether and restoring Gaza and the Arab West Bank to Egyptian and Jordanian control, respectively. I suspect, however, that these will remain fringe positions. On Iraq the President has compromised. The withdrawal timetable drew the ire of Kenneth Pollack in the New York Times, the Democratic foreign policy analyst who did so much to help bring about the Iraq war in the first place with his bloodcurdling 2002 book, The Threatening Storm, making it clear that Saddam was on the verge of a nuclear capability; but I cannot believe there is any large constituency that will be upset by it or even particularly disturbed if things go badly. (The danger of an Arab-Kurdish conflict seems to be increasing.) Afghanistan and Pakistan are a different matter, but they are not likely to arouse much public ire either no matter what happens.
It is not at all clear what the Administration intends for the Middle East, but an interesting straw is bending in the wind. Secretary of State Clinton has drawn blasts from several conservative American Jewish leaders for having protested Israeli delays of humanitarian aid for Gaza. It is hard to believe that that alone would have prompted cries of betrayal so quickly. Hamas and Fatah are working on creating a unity government, one which would give the Administration the opportunity to face reality with respect to Hamas, rather than to write it off (as Abrams and one of her critics do) as a cat's paw for Iran, now cast (by Benjamin Netanyahu, too) as the Nazi Germany of the twentieth century, determined to unleash a world war. President Obama seems determined to face every long-standing issue squarely, and that could apply to the Middle East, as well.
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