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Lessing: In Praise of Laziness

Nicolaes Maes, An Old Woman Dozing (1656)

—Gotthold Ephraim Lessing, Lob der Faulheit (1747), reproduced in Werke, vol. 1, p. 77-78 (G. Göpfert ed. 1970)(S.H. transl.)

One of the key aspects of Lessing’s voluminous writings on literature and literary esthetics is the relationship between Witz, Humor and Genie—three concepts that can be rendered by their English cognates, wit, humor, and genius (though only in the second case is the English word really coterminous with the German). In general, Lessing valued the English tradition for its development of a kind of humor distinct from the then-prevailing French tradition of ridicule. The English approach reflected a genuinely humanist tradition with foundations in antiquity; in this context, Lessing repeatedly cited a passage from Pindar: “σοφὸς ὁ πολλὰ εἰδὼς φυᾷ: μαθόντες δὲ λάβροι παγγλωσσίᾳ, κόρακες ὥς” (“Wise is he who knows things through himself”).¹1. Olympian Ode 2.86 Humor is fundamentally valid when it helps us appreciate the human condition by laughing at ourselves, or at a foible or shortcoming common to us as human beings. Humor that stings like a wasp, denigrating or humiliating another, is often false and likely to lead one morally astray.

This innocent, simple poem is a solid, lighthearted demonstration of Lessing’s principle, and a reminder, much like the works of Mozart, that the lighthearted, self-deprecating aside that aims for a simple chuckle may well be linked to serious genius, whereas a mocking, venomous, ill-spirited attack rarely is.

Remembering Gotthold Ephraim Lessing on his 283rd birthday.

Listen to a setting of the poem by Franz Joseph Haydn (Hoboken XXVIa) (1781), performed by Rüdiger Buell, with Ulrike Zeitler on the piano:

The Operators: Six Questions for Michael Hastings

Michael Hastings’s Polk Award–winning Rolling Stone article, “The Runaway General,” brought the career of General Stanley McChrystal, America’s commander in Afghanistan, to an abrupt end. Now Hastings has developed the material from that article, and the storm that broke in its wake, into an equally explosive book, The Operators, which includes a merciless examination of relations between major media and the American military establishment. I put six questions to Hastings about his book and his experiences as a war correspondent in Iraq and Afghanistan:

1. Your book presents a Barack Obama who behaves uncomfortably and perhaps too deferentially around his generals, but who is also the first president since Harry S. Truman to have sacked a theater commander during wartime—and moreover, who did it twice (first, General David McKiernan, then McChrystal). How do you reconcile these observations?

Michael Hastings

I actually think the two observations reveal an evolution in the president’s relationship to the military. During my reporting, one of the conclusions I came to was that President Obama’s mistake wasn’t firing General McChrystal—it was hiring him in the first place. General McKiernan wouldn’t have been a political headache for the president; McKiernan wouldn’t have waged a media campaign to undermine the White House, nor have demanded 130,000 troops.

The president didn’t come up with the idea to fire McKiernan on his own. He was convinced to do so by Secretary of Defense Robert Gates, Joint Chiefs of Staff chairman Admiral David Mullen, and General David Petraeus. He took their advice without questioning it, really. That, I believe, was his original sin in dealing with the military. The rap on McKiernan was that he was a loser who just didn’t get it. I never bought that narrative—nor did a number of military officials I spoke to. McKiernan understood perfectly well what counterinsurgency was, and he’d started enacting it. (There were fewer civilian deaths under McKiernan than McChrystal.) But McKiernan was on the wrong team—he was the victim, essentially, of bureaucratic infighting. At the time, the president had put a lot of trust in Gates and Mullen (misplaced, in my opinion) and didn’t have the confidence to say, “Hey, wait a second, maybe McKiernan should stay.”

Then, a few months after McKiernan was fired, McChrystal set off the infamous strategic review. McChrystal publicly criticized the vice president, leaked that he was going to resign, and had his allies in the media ratchet up the pressure to escalate. The president felt boxed in, or jammed. He wasn’t comfortable enough at the time to truly stand up to the military. They never gave him the plan he asked for—instead, they gave him the plan he explicitly said he didn’t want, a plan that required a decade-long nation-building commitment. He vowed that he would never get jammed again, according to my White House sources. And, I think, the firing of McChrystal was, in part, the White House sending a very strong message—i.e., I might have been a bit wobbly at first, but I’m your commander-in-chief.

2. It seems ironic that McChrystal got a pass over the Pat Tillman affair and the prisoner-abuse scandal surrounding Camp Nama, but then was sacked over the publication of your article, which revealed informal sarcastic banter involving him and his staff of a type that would surprise no one who has dipped into a war command environment. Does this tell you anything about the political environment in Washington? Was Obama’s decision correct?

I’ve never really had a strong opinion on whether McChrystal should have been fired. My most stinging criticisms have always been aimed at policy, really. But the fact that it was making fun of Vice President Joe Biden and Ambassador Richard Holbrooke that ended his military career—rather than him being involved in a high-profile cover-up, or in one of the more shameful episodes in the Iraq War, or in pushing a doomed strategy that won’t make us safer—says a lot about (a) the priorities of the Beltway political and media class, and (b) how angry the White House had been about the Pentagon’s behavior. At the same time, I think the fact that McChrystal got away with both of the things you mention—essentially operating outside the law for the previous decade, in this shadowy and very dark world we still know very little about—played into this idea that he was untouchable. That he could say anything he wanted and do anything he wanted. If you can get away with such audacious behavior, what’s trashing the VP? Not even on the same scale of risk, or apparent danger.

What I’m saying is: cover-ups, torture camps, and a culture of complete impunity are intimately linked to the kind of reckless contempt Team McChrystal displayed for the civilians in Washington.

As an aside: If I was applying for a job, and I were asked the question, “How many cover-ups of the deaths of national heroes have you been involved in,” and my answer was, “Well, just one,” I wouldn’t get the job. None of us would get the job—we’d be in jail!

3. Your article triggered two internal probes by the U.S. military that—like the recent probe into David Barstow’s Pulitzer Prize–winning story on the Pentagon’s manipulation of ostensibly independent military experts who appeared on broadcast news—exonerated the Department of Defense and questioned the accuracy of the reporting. What do you make of these internal investigations?

Is whitewash one or two words? In my experience, when the DoD investigates itself—especially when powerful people are involved—they find they did nothing wrong. Or, they find some low-level asshole to hang out to dry. The multiple Pentagon investigations into the Rolling Stone story were particularly absurd. First, the Army investigated and found that it was the Navy’s fault. Then, the Pentagon Inspector General’s office took over and found that it was Rolling Stone’s fault. They spent nine months on the investigation to find out “what happened,” when all they had to do was read a copy of the magazine. Of course, the results of these investigations were invariably reported with pro-Pentagon spin. Thom Shanker, the New York Times’s Pentagon correspondent, didn’t even bother calling us for comment before he ran with the Pentagon spokesperson’s story “clearing” McChrystal, whatever that meant. (I refer you to the statement Obama made when he fired McChrystal—that’s why he got fired, not because he explicitly broke any laws. The Pentagon’s attempt at rewriting this history has been disturbing to observe.)

I suggest reading the report of the investigations in full, if you want some comic relief. It suggests that a few scenes in my Rolling Stone story were taken out of context. What is the proper context, I wonder, for saying the French minister is “fucking gay”? For flicking the middle finger to your commanding officer? For getting shit-faced and stumbling in the streets? We provided plenty of context in the article, and the book lays out some of these incredible scenes in much more detail.

I think the only way to have actual accountability is for Congress to fulfill their oversight role, but even that’s not foolproof.

4. Your book pays at least as much attention to the Pentagon press corps and its relationship with power as it does to Stanley McChrystal and his team, and you write that after your article ran, you found that you had few problems dealing with military and political figures, but your relations with many of your fellow journalists had been poisoned. Why?

The original article contained an implicit criticism of a few of my colleagues, so I guess I shouldn’t have been so surprised by the backlash. They would have ignored the implicit criticisms if they could have, but the story garnered too much attention. All of a sudden Jon Stewart is on the Daily Show saying, “Hey, you other guys suck.” I think that embarrassed a number of folks who weren’t used to being embarrassed. They are accustomed to being the unquestioned journalistic authorities of these wars. And, as a general rule, war correspondents are a competitive and catty breed. Put ten war reporters at a dinner table and one of them leaves the room, seven others at the table will tell you the guy is a dick, she misbehaves with sources, he’s a sketchy womanizer, he can’t be trusted, he makes stuff up, she doesn’t deserve this or that. Usually—it’s such a small, tight-knit community—that kind of dirty laundry is kept secret among the “luckless tribe,” as one reporter once described us. That’s the micro level.

On the macro level, there was something much larger than myself, or Rolling Stone, or McChrystal. It had to do with how the media, as a whole, had been covering these wars. And despite the best efforts of a number of excellent journalists, on stories from WMDs to the escalation in Afghanistan, we’ve done a pretty spotty job, I think. I also came to consider the Pentagon press corps not as a watchdog of the Pentagon, but an extension of the Pentagon. This was a critical insight for me.

5. Through 2007 and 2008, Iraq War reportage was heavily dominated by a narrative saying “the surge is working.” In retrospect, was the focus on the right issue? What does this line tell you about the media–military relationship?

Hah, yes, the surge is working. (As the latest news from Iraq shows—another sixty dead in a bombing…) In some ways, though, it wasn’t totally inaccurate. Eventually, after we unleashed a tremendous amount of violence in 2007 and 2008, violence decreased. But I would refer you to what a young officer named Major David Petraeus wrote in 1987—that it isn’t what happens on the ground that matters; it’s the “perception” of what happens that is key.

Remember, though, there was never really a time during the Iraq War that the military didn’t say that what they were doing was working. The same thing goes (except for the brief moment when McChrystal took over) for Afghanistan. But all we have to do is look to Iraq to see what “working” really meant: a face-saving withdrawal that Petraeus could spin as a victory, in my opinion. Petraeus had a receptive audience in Washington for the line—so many top policy makers and journalists had been complicit in starting the war in Iraq. What incentive did they have to question the victory narrative that Petraeus was handing to them?

6. Last week, the Pentagon released its latest defense strategic review, which guides defense spending for the fiscal years 2013 to 2018. Counterinsurgency (COIN) has fallen to ninth place among the nation’s military missions, outstripped by things like cybersecurity and support for domestic police operations. Given what you observed in Iraq and Afghanistan, is this a good thing?

Two years ago, I spent another Christmas holiday season in Baghdad, one of probably three I spent over there. And one of my journalist colleagues looked around the dinner table and said, “If you’re having Christmas in Baghdad, you’ve already lost.”

So yes—the demise of COIN is a victory for competence and decency. It’s also a slap in the face to all these experts who’ve been riding the gravy train for the past ten years, pushing a strategy that was (a) extremely expensive, (b) extremely deadly, and (c) would not, and did not, make us safer. Good riddance to COIN. Let’s hope it doesn’t come back.

Spanish Court Resumes Gitmo Prosecution

On Friday, a judge from Spain’s national security court, the Audiencia Nacional, issued a decision directing the resumption of criminal proceedings relating to the torture and mistreatment of three prisoners held in the American detention facility at Guantánamo Bay. El País reports (my translation):

Judge Pablo Ruz of the Audiencia Nacional has reactivated a case initiated by [Judge Baltasar] Garzón relating to the torture of four Islamists, one of them the so-called “Spanish Taliban,” during their captivity at the U.S. base at Guantánamo; according to the judge the case involves crimes of torture, crimes against humanity, and war crimes.

The judge concluded that there is sufficient basis to support a finding of jurisdiction for the Spanish courts to investigate the facts, as the case has a “connection relevant to Spain.” Even though the plenary chamber of the court’s criminal division has established a preference for U.S. jurisdiction in such cases, the exercise of Spanish jurisdiction would be appropriate because there is no evidence that either the U.S. or the U.K. had opened an investigation or commenced a prosecution of the crimes in question.

The case has a long history. The three former prisoners were released from custody in 2007 at the request of the British government, and were then turned over to Spain under a Spanish arrest warrant charging them with complicity in acts of terrorism. The Spanish case, brought by Judge Garzón, was dropped, and a later ruling in the Spanish Supreme Court rejected the prosecution’s reliance on statements made by the prisoners during their Guantánamo captivity, suggesting the court’s belief that the prisoners had been tortured. The court later opened preliminary inquiries into their allegations of abuse.

The court issued letters rogatory to the U.S. Justice Department requesting information about the Guantánamo prisoners’ allegations, including whether the United States had conducted any inquiry of its own. Although the Justice Department responded to another Spanish court looking at accusations against Bush Administration lawyers with a letter claiming that the cases were the subject of a pending investigation (claims sharply contested by lawyers for the victims) it defaulted on Judge Ruz’s requests, laying the grounds for the ruling reopening the case.

The court’s nineteen-page opinion focuses on questions of jurisdiction and complementarity—the “traffic rules” used by courts to determine who will proceed first in cases where multiple prosecutors have a basis for claiming jurisdiction. The opinion concludes that the Spanish citizenship of one of the three prisoners furnished the essential jurisdictional connection for Spain.

It remains unclear who might be prosecuted in the case; the opinion mentions a number of senior Bush Administration figures. Judge Ruz requested that prosecutors take a position on this issue before the case proceeds. While the Audiencia Nacional adopted a decision in January 2010 viewing the “intellectual authors” of the policy that permitted torture as the persons principally culpable, former Spanish attorney general Cándido Conde-Pumpido sharply disputed this perspective, arguing that only the persons who physically committed the acts of torture or abuse could be charged. WikiLeaks cables published in El País subsequently revealed that Conde-Pumpido had been the target of aggressive lobbying by American politicians and diplomats seeking his intervention to spike the Guantánamo prosecutions. Conde-Pumpido resigned as attorney general last month, and Spain’s new government is currently in the process of designating his successor.

The court has requested that El País turn over its cache of Spain-related WikiLeaks cables so that they may be examined in connection with the case. It has also requested formal submission of a report by Human Rights Watch studying the conditions in Guantánamo that are the subject of some of the complaints.

Submissions by lawyers for the victims strongly suggest that they are pursuing a strategy focusing on claims against Major General Geoffrey Miller, a former Guantánamo camp commander whose practices were heavily scrutinized and criticized by Congress. The lawyers have repeatedly asked for Miller to be subpoenaed and compelled to give testimony, and one of the victims has testified that Miller was the person in charge at the time he was abused.

In separate developments, a French judge has also issued letters rogatory to the Justice Department, seeking permission to travel to Guantánamo and conduct inquiries there. Le nouvel Observateur reports that Judge Sophie Clément is investigating the claims of three Frenchmen formerly held at Guantánamo, who say they were tortured and subjected to other acts of barbarity during their detentions.

As Carol Rosenberg noted in a report this past Saturday, these cases reflect European courts’ increasing tendency to conclude that the Obama Administration’s “look forward, not back” policy means that U.S. prosecutors will not meaningfully investigate or act in cases involving the torture or mistreatment of prisoners during the Bush era. Since the crimes involved are subject to universal jurisdiction—as the United States has itself long argued—this means that other nations may now conduct their own investigations and open prosecutions. This means that, far from being over, the torture investigations will now enter a new phase—one that parallels the developments following Augusto Pinochet’s rule in Chile and after Argentina’s “dirty war,” when criminal investigations were pursued largely in European courts because amnesty arrangements prevented the pursuit of justice in domestic courts.

Martin Luther King Jr.: Nonviolence and the Struggle Between Rich and Poor

Martin Luther King, Jr. delivering a lecture—March 26, 1964 (Library of Congress Collection)

The emergency we now face is economic, and it is a desperate and worsening situation. For the 35 million poor people in America—not even to mention, just yet, the poor in other nations—there is a kind of strangulation in the air. In our society it is murder, psychologically, to deprive a man of a job or an income. You are in substance saying to that man that he has no right to exist. You are in a real way depriving him of life, liberty, and the pursuit of happiness, denying in his case the very creed of his society. Now, millions of people are being strangled in that way. The problem is international in scope. And it is getting worse, as the gap between the poor and the “affluent society” increases…

In a world facing the revolt of ragged and hungry masses of God’s children; in a world torn between the tensions of East and West, white and colored, individualists and collectivists; in a world whose cultural and spiritual power lags so far behind her technological capabilities that we live each day on the verge of nuclear co-annihilation; in this world, nonviolence is no longer an option for intellectual analysis, it is an imperative for action.

—Martin Luther King, Jr., The Trumpet of Conscience (1968).

Donne: An Anatomy of the World

Anthony Van Dyck, Studies of a Man’s Head (ca. 1618)

—John Donne, conclusion from An Anatomy of the World, Wherein, by occasion of the untimely death of Mistress Elizabeth Drury, the frailty and the decay of this whole world is represented. The First Anniversary (1611)

There comes a point in the poetical life of John Donne when the satirical, love-obsessed, fashionably depressed young man gives way to the solipsistic cleric and philosopher. This seems to happen right around the time of this poem, the “First Anniversary,” written for Donne’s wealthy patron, Sir Robert Drury. The poem marks the death of Drury’s beloved daughter Elizabeth, who passed away in December 1610 at the age of fourteen. On the surface, it is about the dark world her departure left for her loved ones. Donne contrasts this world with the one that continues about its business, not noticing Elizabeth’s passing—a world that offends the aggrieved. His commemoration of tragic loss now seems a bit clichéd, but its conceit is brilliant: it is not the death of Elizabeth we mark, but the death of the world. Surely Donne means this in a philosophic sense—the sense of Heraclitus, who taught that one cannot step into the same river twice—as well as in a Christian sense.

Yet, as with so much of Donne’s work, the poem contains many layers of meaning. Most are related more to Donne and his life than to Elizabeth. He is, after all, the poem’s voice. It is the transformation of his world we are examining. And indeed we know, not simply from this poem, that his life was being transformed; that his way of relating to the world was evolving. The author of slyly erotic poetry is fading away. Another Donne is coming in his place.

Some of this transformation was related to the religious politics of his day. Donne’s family was devoutly Catholic. His brother Henry was arrested and brutally tortured over his suspected links to a Catholic insurrection, and once harbored a Catholic priest, which was then regarded as an act of treason. He died a gruesome death from bubonic plague at Newgate Prison. The experience affected Donne deeply. He later came under intense pressure to distance himself from his Catholicism, and then to take orders as an Anglican. Donne could have ignored this pressure only at great peril, since it came directly from the king and senior court officials (note this curious language in the poem: “All just supply, and all relation;/ Prince, subject”). Ultimately, he succumbed, writing anti-Catholic tracts and taking Anglican orders. From John Donne, Catholic, occasional poet, and minor lawyer, emerged John Donne, Anglican divine.

These facts surely help us better understand the words “new philosophy calls all in doubt,/ The element of fire is quite put out.” The “new philosophy” becomes Protestantism, the force of the Reformation, the force that shattered Donne’s world, and the force he embraced in order to survive (“For every man alone thinks he hath got/ To be a phoenix”). But it is also a new spirit of inquiry, a love of science, a rejection of the old constraints of dogma. It is the new world being born in England, one filled with new tensions and conflicts. Donne’s attitude toward this transformation is at once pained and ambivalent: “’Tis all in pieces, all coherence gone,” he writes. Hardly the words of a zealous convert, but nevertheless those of a man treading a new path, uncertain where it will lead. They might also be read as prophesying a world to come: England, on the path to civil war.

What, in the end, is Donne’s “Anatomy of the World”? Is it an effort to provide solace? Or is it a work filled with sorrow for a world extinguished, and with joy and foreboding about the world that has taken its place? “She, she… she” he writes, in an odd refrain found also in the lyrics of a John Dowland song popular in Donne’s time (posted below). But this “she” is more than Elizabeth, and more even than a female archetype. For Donne sees in human history a long chain of worlds shattered and replaced, of men and women born and remade, of life everlasting and transfigured. It is a powerful and solemn vision.

Listen to Glenn Gould perform Orlando Gibbons’s Fantasy in C Major, composed around 1612.

Listen to John Dowland’s “Say Love, If Ever Thou Didst Find,” from the Third and Last Booke of Songs or Aires (1603), here in a performance by Anthony Rooley and The Consort of Musicke:

Gitmo at Ten

On January 11, 2002, the first prisoners from the Bush Administration’s “War on Terror” were landed at the Guantánamo Bay Naval Base, a forty-five-square-mile enclave at the eastern end of Cuba that America secured in a 1903 treaty and has held ever since. Today marks the tenth anniversary of U.S. detention operations there. In the intervening years, the prison population swelled, with a total of 779 prisoners having been held there at some point. Some 600 were released (mostly by the Bush Administration), and of the 171 still held there, a majority have actually been cleared for release. These eighty-nine men are something of a political ping-pong ball between Republicans, who continue to do everything in their power to keep Gitmo open and to block the prisoners’ release, and the Obama White House, which seems intent on keeping questions surrounding Gitmo out of the headlines. Obama pledged during his campaign to close Gitmo within his first year as president, but this pledge has gone unfulfilled—in part because he was slow to act, but largely as a result of congressional obstruction.

Most of the discussion about Gitmo continues to focus on prisoner abuse, though it is clear that conditions for prisoners improved somewhat during the Bush Administration’s final two years, and that under the Obama Administration, the physical condition of the facilities and the day-to-day treatment of prisoners have prompted a decrease in questions from human rights advocates.

What lessons can be drawn from the American experiment at Guantánamo? Two have consistently garnered less media attention than they merit. The first is that, ten years out, the United States still has not tried any Gitmo detainees as high-profile leaders of the 9/11 plot. Five of the prisoners have been charged, and the evidence assembled against some of them seems impressive. But the failure of the United States to act quickly against the instigators of 9/11 by charging them with crimes, presenting clear and persuasive evidence of their involvement, and convicting them is an inexcusable one, shared by the Bush and Obama administrations. Plenty of excuses have been offered, including the need to extract intelligence from prisoners, the need to conduct thorough investigations, the complications created by the use of torture or “enhanced interrogation techniques” on key witnesses, and legal issues surrounding military commissions. Most of these problems are of the government’s own making, and none of them adequately explains the shameful loss of time in bringing justice to the victims and the country as a whole. Gitmo will forever be associated with the maxim that justice delayed is justice denied.

The second underreported lesson of Gitmo relates to the poisonous effect of partisan politics. No one expected matters as deeply felt as 9/11 to remain entirely outside of partisan politics, but the idea of Gitmo was cast soon after the attack, amid a political campaign. Republicans made it an issue in the midterm elections of 2002, marketing it as a “robust” or “proactive” approach to defending the nation against terrorists. The message worked marvelously, scoring enormous gains for the G.O.P.

Unknown to most Americans, though, just before the fall vote, representatives of the CIA and FBI went to the White House to break the bad news: Gitmo had been filled not with dangerous Al Qaeda and Taliban leaders, but with a bunch of nobodies. Political considerations plainly dictated the response. The government would not review the prisoners’ cases or grant releases, we were told; instead, “the president has determined that they are all enemy combatants.” Not only did this approach deny facts later borne out in case reviews and habeas petitions, it aggressively demonized the Gitmo population in order to create a sort of political insurance policy.

The Bush Administration’s shameful response continues to distort the domestic political dialogue about Guantánamo, which amounts to an extended effort to avoid accountability for a series of stupid political mistakes. In the end, it has been effective domestic politics. But it has cost America enormously on the global stage, diminishing the country’s influence and degrading its moral image to an unprecedented degree. This, more than any other reason, is why Obama’s pledge to close Gitmo was fundamentally wise, and why Obama should be reminded of that pledge and pressed to bring it to fruition.

Hobbes’s Mortal Gods: Six Questions for Ted H. Miller

The last decade was clearly something of a Hobbesian moment in American history. Now, political philosopher and Hobbes scholar Ted H. Miller has written a book entitled Mortal Gods: Science, Politics, and the Humanist Ambitions of Thomas Hobbes, in which he examines the English philosopher’s work and its relationship to court politics, absolutist rule, and the seventeenth-century fascination with practical mathematics. I put six questions to Miller about his new book:

1. If the political philosophy of Thomas Hobbes can be separated from that of John Locke on a single practical point, it is probably the notion of accountability of senior political figures. Locke teaches us that no man can be above the law. But for Hobbes, as you note, the sovereign is personified as a law-giver who operates outside the limitations of law. Many in America today believe we are witnessing a resurgence of notions of immunity and unaccountability that benefit the powerful and the wealthy. Is this the legacy of Thomas Hobbes?

Ted H. Miller

It’s a very troubling resurgence. As a proponent of absolutist sovereignty, Hobbes plays a part, but he isn’t alone. Moreover, he might aid more than one perspective on this question. Like absolutists before and after, he taught that sovereign powers ought not to be held to law by their subjects. For some, including Locke, Hobbes’s sovereign is an untamed beast who roams his domain, a threat to subjects rather than a legitimate authority. For Hobbes himself, an unquestionable sovereign is the very condition of an ordered and lawful state. With no last word on the law, chaos results. A sovereign held accountable within the state could not do what a sovereign must: “overawe” subjects and hold them accountable. This unusual status of his sovereign as the exempt keeper of law made Hobbes a kind of beacon to critics of rule-of-law liberals in the twentieth century. They noted that Hobbes’s sovereign might suspend, or destroy and reconstitute, basic law in crisis moments.

Hobbes, however, might offer his own solution to the problem of wealthy and powerful people who stand immune and unaccountable: if they claim this immunity without sovereign warrant, then sovereign powers should exercise their force to hold them to account. Unfortunately, much of the immunity you’ve referenced gets the nod from those who claim sovereign power. Some have described the vast increases in executive power after 9/11 as a form of neo-absolutism. The creeping immunity granted those who do the state’s bidding can be seen in the same light.

2. You write that Hobbes’s work reflects the “problems we face today” in the realms of reason and politics, and that he is a “negative example” for us. What do you mean by this?

Aside from what we’ve just discussed, these problems are concerns for political theorists and the social sciences generally. Can we avoid forcing what we study into predetermined categories? Is there an inevitable kind of violence done here—think, for example, of the way phenomena are made to fit Kuhnian paradigms. These and some related possibilities have haunted many political theorists, and we’ve done our best to trouble others in the social sciences with these concerns. We’ve tended to assume, however, that it is enough to show others the violence they do. “If they only knew!” Critically examining one’s own, and others’, foundational premises has been an ongoing, and often worthy, project, but it reveals its own blind spot. This is where Hobbes can be a useful negative exemplar. He knew, in his own way, that reason does this now-scandalous work. More than that, he pursued the coercive and violent reshaping of his world. Some say Hobbes misunderstood human nature, or politics, or that he hit the nail on the head. I think this can actually cloud our own understanding of his enterprise. I join a line of interpretation that insists Hobbes sought to remake, not merely report upon, the world.

3. You build your book around Hobbes’s immodest claim that man can become a “mortal god,” and you suggest that he was probably an atheist. What does the notion of “mortal god” mean for Hobbes’s perspectives on politics and mathematics?

Here I depart somewhat from the line of interpretation I’ve just mentioned. Most still hold the view that Hobbes chose mathematics as a tool for grasping the world, for knowing it as it truly is, or through the lens of rational re-description. Re-making and describing (even rationally) are in tension with one another. Hobbes chose the former over the latter, and he could be indifferent to many of the goals of scientific description retrospectively assigned him today. Why? Amplifying his absolutism, he called the commonwealth’s sovereign a “mortal god,” but this form of immodest ambition permeated his science.

We’ve always assumed that when Hobbes picked up mathematics, he dropped his humanism (at least for a period). It’s a bad assumption. Humanists had real affinities for mathematics, for what it could do for those students who possessed its skills, and for the fruits of mathematically informed practices such as architecture, painting, and map-making. Hobbes’s affinities for mathematics grew out of, not in opposition to, this part of humanist culture. Most importantly, he and these humanists associated mathematics with maker’s knowledge. We know best what we make ourselves; this knowledge supersedes our capacity to know something already made by another, notably God. But who needs to know how God made our often miserable world when we can make things, perhaps better, for ourselves? We know the geometrical figures on the page with utmost certainty because we make them, and Hobbes thought this applied to more ambitious things, like the well-ordered state he sought to create. His science was radically creative. A god who can will a world into existence requires no scientific report on its operations. Mathematics made it possible for men to be most god-like in their creative, not descriptive, power. Hobbes extends the humanist pursuit of practical virtue to its limit: humans might rival God as creators. He may have been an atheist, but the idea of creating by superior intelligence and power was very much a living faith for Hobbes. He was, however, anxious to stress to his adversaries that no one could use science to determine how an omnipotent God operated in the universe. He never relinquished this weapon against natural philosophers.

4. Hobbes’s political theories seem remarkably attuned to the interests of his patrons and opposed to the politics of his academic rivals at Oxford. Is it fair to say that he was an opportunist?

It might not be fair for us to call Hobbes an opportunist. Liberalism leads us to look down upon those who seek favor through patrons. We prefer to think that winners are deserving when chosen in a free competition of equals. Some credit (or blame) Hobbes for fostering this way of thought, but he made his way in a world of patronage, where they saw these things differently. He was skilled in these affairs, but I’m inclined to think that his patrons chose him because they found him a thinker already fit for their prior enthusiasm for practical mathematics. I’d be reluctant to accuse him of an opportunist’s insincerity.

Among his royalist critics, however, Hobbes was indeed an “opportunist,” or something worse. He argued that a sovereign who could no longer offer a subject protection was no longer owed obedience. It wasn’t having patrons, but betraying them, that raised their hackles. On the other hand, Hobbes was infuriated with patronage arrangements after the restoration. Not unlike others who had stood with the Stuarts—as he did until things became untenable for him in the exiled court in Paris—he wished to see the fortunes of some reversed. Those who were considerably less loyal, indeed allied with the crown’s enemies, had gained and kept high positions at Oxford. John Wallis, who also attacked Hobbes’s mathematics, and had been advanced further with the restoration settlement, was a particular target.

5. You say that Hobbes wrote the Leviathan as a gift, expecting to receive something in return. For whom did he write it, and what was he expecting?

Critics said he actually wrote it for Cromwell. Hobbes denied this, and I believe him. Leviathan was composed while he was tutoring prince Charles (later Charles II, the restored Stuart monarch) in mathematics. Most importantly, however, Leviathan was written for a would-be sovereign. It was, I think, a kind of mathematical mirror for a prince, one that echoed another mirror-for-princes genre at the time, the court masque. Both incorporated ostentatious displays of mathematical learning, and showed the prince an image of himself as a god-like bringer of order.

I think Hobbes made clear what he wanted in return. He wanted his doctrines taught in the schools, by sovereign command. He promised that the doctrine would produce obedient subjects, and in return he would have achieved the approval (and perhaps some delegated authority) of an absolutist sovereign of his own design. This never happened. His enemies at court read the work and had him refused. He then quickly fled the court, this in 1651. He returned to the king’s good graces with the restoration, but he never received the reward he sought.

6. Hobbes’s polemics frequently concerned his vision of the university and what it should be. How did his views compare with our contemporary notion of the university as a forum for free thought and free discourse?

Those were not his ideals, even as he helped unshackle minds from existing religious authority. The universities were first an instrument for the sovereign—a place for generating obedient and useful subjects, not places of unfettered inquiry. What was taught and who would teach it were the sovereign’s prerogative. Teaching sedition would not have been tolerated. Hobbes gives us plenty of food for thought, and he has a place in the universities today. It’s not the place he sought, but, all in all, I think he ultimately got his just deserts.

Obama Signs the NDAA, World Does Not End (Yet)

On New Year’s Eve, as most Americans were focused on parties and football games, President Barack Obama signed into law the National Defense Authorization Act for 2012. He issued a significant signing statement in the process:

I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists… I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded…

I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Obama’s decision hardly provoked applause from the NDAA’s critics. The ACLU stated that it was a “blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law.” Jonathan Turley has called Obama’s decision to sign the NDAA into law America’s “Mayan moment”—the dooming moment “when the nation embraced authoritarian powers with little more than a pause between rounds of drinks.”

On the other hand, two legal scholars with strong civil-liberties credentials and close ties to the administration, Marty Lederman and Steven Vladeck, authored a serious review of the NDAA’s most controversial terms and found them to be a mixed bag, but far from a civil-liberties apocalypse. The measure can fairly be called the “Gitmo Forever” Act because it contains a series of provisions designed to frustrate Obama’s pledge to close the detention operations at Guantánamo. On the other hand, as the result of effective lobbying by the White House and civil libertarians, the worst of the provisions concerning what the military calls “detention operations” were reshaped into provisions that are either relatively harmless or sound statements of law.

Surely both of these views can’t be right?

Civil libertarians obviously would have preferred a veto of the NDAA, followed by its repassage, stripped of the special-detention provisions. Still, they scored a modest success in the signing statement (an ironic achievement, given that they sharply criticize signing statements in principle). There, Obama made an explicit promise about how he would use the authority some saw in the Act to place American citizens in indefinite military detention. He also restated his opposition to the creeping militarization of the criminal-justice process. And Lederman and Vladeck are certainly right that the most offensive aspects of the detention provisions were brushed away in the last rounds of negotiation. Maybe the “Mayan moment” that Turley has in mind is coming in the fall.

I don’t think Turley or any other civil liberties critic expects to see the Obama Administration sweep America’s streets, picking up American citizens and shipping them off to overseas military prisons. In fact, to the irritation of some of his Republican critics, Obama has gone on record opposing military detention for terrorism suspects who are U.S. citizens for some time now. The concerns of civil libertarians are based more on their recent experience of a Justice Department Office of Legal Counsel that sought to legitimize torture, schemed to bury the Posse Comitatus Act, wrote memos authorizing warrantless surveillance, and approved numerous war crimes. If you’ve watched any of the recent G.O.P. presidential debates, then you know all of the contenders (excepting Ron Paul and possibly Jon Huntsman) embrace torture techniques like waterboarding, would expand Guantánamo, believe that military prisons are the alternative to an ineffective criminal-justice system, would revive extraordinary renditions and CIA black sites, and generally rush to characterize anyone who thinks differently about the world as un-American or worse. Among this group, measures to strip Americans of their citizenship are a serious topic, while the ending of the wars in Iraq and Afghanistan provokes consternation. The question therefore becomes not what Barack Obama’s Justice Department would do with the NDAA, but what a Rick Santorum or Mitt Romney Justice Department would do. And on that score, Turley’s concerns, though melodramatic, are far from unrealistic.

Tolstoy: The Chain of Ideas that Constitutes Art

Ilya Yefimovich Repin, Tolstoy Reading in the Forest (1891)

Так вот почему такая милая умница, как Григорьев, мало интересен для меня. Правда, что если бы не было совсем критики, то тогда бы Григорьев и вы, понимающие искусство, были бы излишни. Теперь же, правда, что когда 9/10 всего печатного есть критика, то для критики искусства нужны люди, которые бы показывали бессмыслицу отыскивания мыслей в художественном произведении и постоянно руководили бы читателей в том бесконечном лабиринте сцеплений, в котором и состоит сущность искусства, и к тем законам, которые служат основанием этих сцеплений.

И если критики теперь уже понимают и в фельетоне могут выразить то, что я хочу сказать, то я их поздравляю и смело могу уверить qu’ils en savent plus long que moi.

And this is why such a charming egghead as Grigoriev is of so little interest to me. It’s true, if there had been no criticism at all, then Grigoriev and you, persons who understand literature, would be superfluous. Today, however, when 9/10 of all that is published is criticism, for art criticism, we need people who would show the senselessness of looking for ideas in a work of art, but who instead would continually guide readers in that endless labyrinth of linkages that makes up the stuff of art, and bring them to the laws that serve as foundation for those linkages.

And if critics can now understand, and even express in newspaper scrawl what I am trying to say, then I congratulate them and can bravely assure them that they know more about it than I do.

—Count Lev Nikolaievich Tolstoy, letter to Nikolai Strakhov, April 23, 1876.

Leo Tolstoy had some rather eccentric thoughts about art and its role in society. He rejected the art-for-art’s-sake view arising from antiquity, insisting instead upon a moral foundation for art—in his case, a morality based on an understanding of early Christianity. He was notoriously distant from the thinking of the Orthodox Church of his day, being persuaded that it had strayed far from the original thinking of Christ and his early followers.

Art, for Tolstoy, was about conveying feelings across time and cultures; good art involved the transmission of feelings that were compelling and associated with proper moral values. Of course, the reader of the Kreutzer Sonata or Anna Karenina knows that these morals are not necessarily consonant with the mores of society, for fidelity to one’s emotions plays a significant role in Tolstoy’s artistry, too.

Tolstoy was also a pronounced anti-snob. Too much refinement, too conscious an effort to play to the sentiments and understandings of a small cultural elite, ruined art. In his view, a Beethoven sonata might well be serious art, but the heroic Choral Symphony could never be, because too few listeners could appreciate it. Universality is therefore an essential aspect of Tolstoy’s vision of art. True art must strive to free itself from the conventions of any given age and place; it must needs be true in different societies and cultures. This very universality helps to clarify that something is not trivial or transitory, but enduring and thus something that merits the name art. This thought emerges briefly in a letter Tolstoy wrote to his friend Nikolai Strakhov in 1876, in the midst of a lampooning delivered to contemporary Russian art critics. One of the things that marks great art is a sense of linkage, or engagement with the past. This very engagement is evidence of universality.

My friend Harold Bloom takes this passage as a motto for his recent book of literary criticism, The Anatomy of Influence—very appropriately, for it is a work of genuine art criticism in the Tolstoyan tradition. Though fortunately for us, Bloom is far more generous in his understanding of what great art may be.

Listen to the first movement (Präludium) of Max Reger’s Cello Suite No. 3 in A Minor, opus 131c (1915) performed by Guido Schiefen:

The Pentagon and its Sock Puppets

An internal Department of Defense review has concluded that a Rumsfeld-era program under which retired military officers who appeared on American broadcast media were given special briefings and access was consistent with Pentagon rules. The New York Times reports:

The inquiry found that from 2002 to 2008, Mr. Rumsfeld’s Pentagon organized 147 events for 74 military analysts. These included 22 meetings at the Pentagon, 114 conference calls with generals and senior Pentagon officials and 11 Pentagon-sponsored trips to Iraq and Guantánamo Bay, Cuba. Twenty of the events, according to a 35-page report of the inquiry’s findings, involved Mr. Rumsfeld or the chairman of the Joint Chiefs of Staff or both. One retired officer, the report said, recalled Mr. Rumsfeld telling him: “You guys influence a wide range of people. We’d like to be sure you have the facts.”

The inspector general’s investigation grappled with the question of whether the outreach constituted an earnest effort to inform the public or an improper campaign of news media manipulation. The inquiry confirmed that Mr. Rumsfeld’s staff frequently provided military analysts with talking points before their network appearances. In some cases, the report said, military analysts “requested talking points on specific topics or issues.” One military analyst described the talking points as “bullet points given for a political purpose.” Another military analyst, the report said, told investigators that the outreach program’s intent “was to move everyone’s mouth on TV as a sock puppet.”

The internal review also apparently found no fault with the exclusion of four individuals precisely because they refused to be sock puppets, speaking critically of some Pentagon decisions. One of them, General Wesley Clark, apparently lost his position as an analyst for CNN because of Pentagon and White House displeasure with what he had to say.

The investigation was prompted by David Barstow’s Pulitzer Prize–winning exposé of the Pentagon program. Barstow wrote:

Records and interviews show how the Bush Administration has used its control over access and information in an effort to transform the analysts into a kind of media Trojan horse—an instrument intended to shape terrorism coverage from inside the major TV and radio networks.

Analysts have been wooed in hundreds of private briefings with senior military leaders, including officials with significant influence over contracting and budget matters, records show. They have been taken on tours of Iraq and given access to classified intelligence. They have been briefed by officials from the White House, State Department and Justice Department, including Mr. Cheney, Alberto R. Gonzales and Stephen J. Hadley.

In turn, members of this group have echoed administration talking points, sometimes even when they suspected the information was false or inflated. Some analysts acknowledge they suppressed doubts because they feared jeopardizing their access.

The Barstow exposé revealed two of the most important media scandals to emerge from the Iraq War period. The first went to the Rumsfeld Pentagon’s deft use of its enormous public-affairs resources to influence the American media, often for blatantly political purposes. These operations were plainly illegal. Since World War II, Congress has imposed clear limits, written into defense-appropriations measures, on the Pentagon’s ability to engage in domestic public-relations operations. The Department of Defense is permitted to run recruitment campaigns and give press briefings to keep Americans informed about its operations, but it is not permitted to engage in “publicity or propaganda” at home. The internal DoD review exonerating the practice of mobilizing and directing theoretically independent analysts apparently focuses on the fact that the program conforms with existing department rules, but it overlooks the high-level prohibition on “publicity or propaganda,” which was plainly violated.

The second scandal goes to the broadcasters themselves. They apparently recruited these analysts anticipating access to the Pentagon and a steady conduit of information. Their compromise highlights the Achilles heel of the Beltway media: access, not critical or objective coverage, is everything. There is little evidence to suggest that the broadcasters took any meaningful steps to assert their independence or objectivity—indeed, the dismissal of Wesley Clark by CNN shows precisely the opposite. The net result is that American viewers were sold on independent analysis and instead got individuals, often with ongoing contractor relationships with the Pentagon, who read from pre-prepared Pentagon talking points.

In his 1961 farewell address, President Dwight Eisenhower warned against the “acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex.” Although he was persuaded that this new relationship between the Pentagon and its contractors was “a vital element in keeping the peace,” he was deeply troubled by the relationship’s potential to disrupt the delicate balance of interests that is fundamental to a modern democracy. David Barstow’s investigation provided some of the most subtle and compelling evidence of this process to appear in recent years. The Pentagon’s self-exonerating report, by contrast, suggests that media sock puppets may become a modus operandi.

Court of Appeal Orders Release of Bagram Prisoner

In an important ruling that sheds light on the complications that American torture and abuse of prisoners presented for NATO allies attempting to support U.S. campaigns in Afghanistan and Iraq, the English Court of Appeal has issued a writ of habeas corpus requiring the return to British custody of a prisoner it concluded was being held illegally by American forces. Yunus Rahmatullah, who was once thought to be connected to the Pakistani militant group Lashkar-e-Taiba, was captured by British troops in Iraq, then turned over to American forces and brought to Bagram prison in Afghanistan in the spring of 2004. I discussed the Rahmatullah case previously, when British parliamentary inquiries first made public the underlying facts. The British legal charity Reprieve brought the habeas petition on Rahmatullah’s behalf.

The facts developed in the Rahmatullah case have clarified the circumstances surrounding one of the notorious Justice Department memoranda issued during the Iraq War. In March 2004, Jack Goldsmith, then head of Justice’s opinion-writing arm, the Office of Legal Counsel, was asked to give an opinion authorizing the removal from Iraq to Afghanistan of a prisoner who was to be rendered to American custody by British military authorities in the Iraqi south. Rahmatullah’s imprisonment was at least one case covered by this memo. The Geneva Conventions unambiguously forbid an occupying power like the United States from removing prisoners from an occupied country except in narrowly defined circumstances designed to ensure prisoners’ own safety. Nevertheless, Goldsmith issued an opinion arguing that they could be removed.

Later on, just as Goldsmith was seeking appointment as a tenured professor at Harvard Law School, a memorandum dated March 19, 2004, surfaced in the press. Several senior faculty members were outraged by it, and mounted an effort to block Goldsmith’s appointment, which was being advanced by the law school’s dean, Elena Kagan (now a Supreme Court Justice). Goldsmith defended himself by arguing that the memo was “never finalized,” a claim that was undermined when the Obama Administration published a finalized memo, signed by Goldsmith and dated March 18, 2004, offering a radically truncated understanding of who fell under the category of “protected persons” in the context of the Iraq War. The finalized memo was textually similar to the March 19 draft. Goldsmith also argued that the memo could not have been used to abuse anyone because “it stated that the suspect’s Geneva Convention protections must travel with him outside of Iraq,” a reference to an ambiguous footnote found at the bottom of the last page of the draft memo.

Unquestionably, the memo did attempt to justify the removal of prisoners from Iraq, notwithstanding the Geneva Conventions’ explicit prohibition of the deportation of prisoners from an occupied country. Was the memo solicited to justify Ramatullah’s removal from Iraq, and to back up U.S. assurances to the British that he would be treated consistently with the Geneva Conventions? That seems likely the case.

The English court decisions do not in any event discuss the Goldsmith memorandum. It is plain, however, that the court does not share Goldsmith’s highly controversial, and widely criticized, analysis of the law. Little information is available about the conditions in which Rahmatullah was held at Bagram, though, as the English court observed, Bagram is “a place said to be notorious for human rights abuses.” The worst of these abuses, including the death by torture of two prisoners (one of whom was the basis for the Oscar-winning documentary Taxi to the Dark Side), occurred before Rahmatullah’s transfer in 2004, but similar violations, including torture, continued at Bagram at least through the fall of 2006, and sporadically thereafter.

The fundamental question posed by a habeas corpus request is whether the prisoner has been lawfully detained. It was for the British government to make a case that the detention was lawful, and it failed to do so. Though it could have raised the kinds of arguments made in the Goldsmith memorandum, it clearly did not believe them to be correct. Instead, it chose to argue that the case was governed by foreign-relations considerations that ought to be immune from judicial scrutiny, an approach the court rejected.

Speaking for a unanimous Court of Appeal, Lord Neuberger, Britain’s second most senior judge, observed that Rahmatullah had been held at Bagram for seven years, his confinement continuing even after the United States’s military-review authority had concluded that his internment was unnecessary. No charges of any sort had ever been brought against him. Noting that article 49 of the Fourth Geneva Convention forbade transfers of prisoners from an occupied country, the court ruled in favor of the habeas application.

The ruling provides a strong counterpoint to American court opinions on similar issues. For one, it presents a clean application of traditional habeas corpus rules in the setting of military detention. Recent rulings in the District of Columbia Court of Appeals, such as the Latif case, clearly aim to make the habeas process meaningless—thwarting the Supreme Court’s guidance in Boumediene, in which it said that applicants should have a “meaningful opportunity” to challenge government evidence. Several D.C. circuit judges have since openly challenged this counsel as unwise. Indeed, the D.C. Circuit’s opinions have increasingly departed from legal grounds in favor of heated political rhetoric. The English Court of Appeal ruling, by contrast, politely defers on the executive and diplomatic issues raised by the Rahmatullah case, even as it demands that the government avoid obfuscation and make its case on the facts.

The British ruling also differs from U.S. opinions in offering a straightforward understanding of the scope of conflict. The “Iraq war is ended,” the Appeals Court twice observes. Indeed, this is now a hard fact to miss: the troops have left, the colors have been folded and cased. And the end of the war has plain consequences under international humanitarian law—specifically, rules concerning the status of prisoners and their presumptive right to be set free unless they are guilty of criminal wrongdoing or present some clear, continuing threat. In America, by contrast, Republicans in Congress seem determined to muddy the legal waters with rhetoric, arguing that the country is at war with the tactic of terrorism or with some undefined group of shadowy enemies. As American military and intelligence leaders mark a triumph over Al Qaeda, the party of perpetual war recently proclaimed that the homeland was a battlefield and pushed for a militarization of the criminal-justice process involving terrorism cases.

The Court of Appeal opinion also teaches us how Britain was constrained by the Bush Administration’s torture practices and its efforts to deny the application of the Geneva Conventions. Britain had to conclude a Memorandum of Understanding with America specifying that the treatment of transferred prisoners would be consistent with a traditional interpretation of the Geneva Conventions. The United States also promised that it would return any rendered prisoners if so requested—an agreement critical to the habeas case. We learn that even today, Whitehall has so little confidence in America’s intention to honor this agreement that return requests are thought “futile.”

This opinion is an important affirmation of the Geneva Conventions, and a clear, though cautious, exposition of their underlying principles. An American reading the decision must feel gratitude for its underlying belief: that when presented with the habeas writ of a foreign government, the Obama Administration will respect the command of law and “produce the body of Yunus Rahmatullah.”

With Liberty and Justice for Some: Six Questions for Glenn Greenwald

In the wake of September 11, Glenn Greenwald emerged as the nation’s premier chronicler of the war that U.S. officials waged on the nation’s civil liberties under the pretext of battling terrorists. Persistent and technically skilled, he played a key role in unmasking shameless betrayals by government attorneys of their oath to uphold the law—exposing those who enabled the torture of prisoners, the introduction of a massive warrantless surveillance system, and the merciless war against loyal Americans who attempted to blow the whistle on such abuses. I put six questions to Greenwald about his new book, With Liberty and Justice for Some, which examines the emerging doctrine of impunity for politically powerful elites in the United States:

1. You start your account of the doctrine of elite immunity in the United States with Gerald Ford’s decision to pardon Richard Nixon. How did this one decision, among the numerous incidents you describe, provide a point of rupture in the nation’s rule-of-law tradition?

Glenn Greenwald

American history is suffused with violations of equality before the law. The country was steeped in such violations at its founding. But even when this principle was being violated, its supremacy was also being affirmed: resoundingly and unanimously in the case of the founders. That the rule of law—not the rule of men—would reign supreme was one of the few real points of agreement among all the founders. Arguably it was the primary one.

There’s an obvious element of hypocrisy in this fact; espousing a principle that one simultaneously breaches in action is hypocrisy’s defining attribute. But there’s also a more positive side: the country’s vigorous embrace of the principle of equality before law enshrined it as aspiration. It became the guiding precept for how “progress” was understood, for how the union would be perfected.

And the most significant episodes of progress over the next two centuries—the emancipation of slaves, the ending of Jim Crow, the enfranchisement and liberation of women, vastly improved treatment for Native Americans and gay Americans—were animated by this ideal. That happened because “blind justice”—equality before law—was orthodoxy in American political culture. The principle was sacrosanct even when it was imperfectly applied.

The Ford pardon of Nixon changed that, radically and permanently. When President Ford went on national television to explain to an angry, skeptical citizenry why the most powerful political actor would be fully immunized for the felonies he got caught committing, Ford expressly rejected the rule of law. He paid lip service to its core principle—the “law is no respecter of persons”—but then tacked on a newly concocted amendment designed to gut that principle: “but the law is a respecter of reality.”

In other words, if—in the judgment of political leaders—it’s sufficiently disruptive, divisive, or distracting to hold powerful political officials accountable under the law on equal terms with ordinary Americans, then they should be exempt and the rule of law suspended, all in the name of political harmony, of “moving on.” But of course, it will always be divisive and distracting, by definition, to prosecute the most powerful political leaders, so Ford’s rationale, predictably, created a template for elite immunity.

The rationale for Ford’s pardon of Nixon was subsequently legitimized, and it created a precedent for shielding the most powerful elites from the consequences of their lawbreaking. The arguments Ford offered are the same ones now hauled out over and over whenever it is time to argue why the most powerful among us should not be held accountable: It’s not just for the good of the immunized criminal, but in the common good, to Look Forward, Not Backward. This direct assault on the rule of law was pioneered by the pardon of Richard Nixon.

2. ProPublica released, just last week, a study of the pardons process showing that a wealthy, politically connected white person may very well get a presidential pardon, but that blacks don’t get pardons, period. Is this more fodder for your thesis?

It’s almost impossible to write a book and not have something like this happen: one of the best pieces of evidence imaginable for your thesis emerges only after the book’s publication. That’s how I see the superb ProPublica study: as indescribably compelling support for the central argument of the book.

It would be one thing if the lawbreaking license I just described were available to everyone regardless of power or position. If ordinary Americans could avail themselves of this same line of reasoning when they get caught committing crimes—Officer, isn’t it better that we concentrate on the future rather than wallowing in recriminations over the past?—one could have debates about the virtues of leniency as a criminal-justice policy, but at least it wouldn’t implicate rule-of-law concerns. Everyone would be subjected to the same set of rules.

But that’s not what happens. The exact opposite takes place. The flip side of elite immunity is that ordinary Americans are subjected to the world’s largest and among its most merciless penal states. The U.S. imprisons more of its citizens by far than any other country on the planet, and for longer periods, for more trivial transgressions, and with less forgiveness than any country in the Western world. Many of these oppressive penal policies are racist in effect if not in design: particularly the drug war, which results in vastly disproportionate imprisonment rates for African-Americans and Latinos.

Pardons were designed to be a last resort for correcting grave injustices produced by the justice system. Instead, as the ProPublica study documents, they mirror and exacerbate those injustices. Even at that stage, how one is treated depends far more on who one is rather than what one has done. That is the precise antithesis of what the rule of law was designed to ensure.

3. Whistleblowers in the era of Bush and Obama have been fired, harassed, and prosecuted under statutes like the Espionage Act with a hitherto-unknown vigor, especially when their disclosures suggested that government officials committed serious crimes. Is this prosecutorial zeal driven by the same factors that have created elite immunity?

Unquestionably. Take the case of the NSA eavesdropping scandal, the clearest-cut case of criminality during the Bush years. So egregious was the wrongdoing that James Risen and Eric Lichtblau won the Pulitzer Prize for exposing it in the New York Times. Bush officials were caught behaving in the exact way the law criminalized: eavesdropping on Americans’ communications without warrants. And the statute imposed a penalty of five years in prison and/or a $10,000 fine for each offense.

Yet not a single Bush official responsible for those crimes was ever investigated, let alone prosecuted. The nation’s telecom giants, which independently broke laws written specifically to bar telecom–government cooperation in illegal spying, were retroactively immunized for their crimes by an act of Congress.

Nobody paid a price for the NSA scandal, except one person: Thomas Tamm, the mid-level DOJ lawyer who learned of the illegal program and, in an act of conscience, picked up the phone, called Lichtblau, and told him what he had learned. Unlike the criminals themselves, Tamm was investigated, harassed, rendered unemployed, forced to hire a lawyer, and ultimately driven into bankruptcy and serious psychological distress. The only person to suffer from the NSA scandal was the person who blew the whistle on it.

We see this over and over, and it’s what the Obama war on whistleblowers is all about. The only real, cognizable crime—the only one the Obama DOJ displays any real interest in punishing—is committed by those who expose elite criminality, not those who commit it. The attempt to prosecute WikiLeaks is driven by this same mindset.

4. In a speech he delivered recently in Osawatomie, Kansas, President Obama used Theodore Roosevelt’s concept of New Nationalism as a rhetorical foil. Do you agree that Roosevelt’s vision of a nation dedicated to “real democracy” sets the right tone for an age suffering from elitist triumphalism? And do you think Obama is likely, in a second term, to take any meaningful steps against the problems you describe in your book—particularly relating to accountability?

Many of the themes sounded in Obama’s Kansas speech were valid and appropriate, but that matters little. Obama is in campaign mode, and what he has convincingly demonstrated is that the inspiring, passionate speeches he delivers have little relationship to his actions.

There is zero basis for believing that Obama will change course on any of these matters in his second term. There is always another election ahead that apologists can cite to justify bad acts (You have to understand: it’s vital that Democrats win the 2014 midterms). And Obama has displayed no interest whatsoever in holding elites accountable for criminality: not just political actors, but financial elites as well.

If anything, it’s even more unlikely that he would hold elites accountable in his second term. In November, 2008, the New York Times explained why presidents have an incentive to shield their predecessors from prosecution: “Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure.” In other words, by shielding those who came before him, Obama ensures that he can commit crimes with impunity as well. That’s why all elites—political, financial, media—are motivated to defend and preserve this lawbreaking license for their class.

5. While you argue that political elites are very rarely held to account, the U.S. Attorneys scandal and a host of botched prosecutions that came to light around the same time—such as the cases of former Alaska senator Ted Stevens and former Alabama governor Don Siegelman—suggest that “public integrity” prosecutions often reflect careerism and political score-settling more than concern for public corruption. Does this suggest that the Justice Department has been used to enhance political power, and that elites that stand in the way may also become victims?

Yes. In the book, I discuss two general categories of exceptions for when elites are held accountable: first, when their victims are other elites; and second, when their corruption is so egregious and over-the-top that they jeopardize the preservation of elite lawbreaking license. Lewis Libby falls into the first category (the CIA demanded a DOJ investigation because they were furious that Valerie Plame had been outed) as does Bernie Madoff. Madoff also falls into the second category, along with people like Rod Blagojevich.

These are trends, not absolute rules. So of course one can find exceptions. Sometimes poor and marginalized people do receive real justice (rarely, but it happens). Other times, truly powerful people are targeted by ambitious or even noble prosecutors, or when others in power can benefit from seeing them punished (Siegelman).

But in general, overwhelmingly, being politically or financially powerful doesn’t merely mean you have advantages in the justice system. It typically means—with increasing frequency—that you won’t be brought into the justice system at all even when you’re caught committing egregious crimes.

6. Conservative legal scholar William J. Stuntz raised in his final book many of the same criticisms you do about access to justice. But he also faulted liberals for putting too much emphasis on procedural as opposed to substantive aspects of justice—for pointing out that many of the current problems result from hypercorrection of perceived (though often wrongly perceived) weaknesses in the justice system. Is Stuntz right about this?

This is a complicated issue. It is true that an obsessive fixation on procedure can lead to inhumane, overly bureaucratized justice. But ultimately, adherence to procedural regularities—to a common set of rules—is the optimal way to bracket out human corruption. Adams’s “empire of laws, and not of men” really is a dichotomy: it’s one or the other. And if we’re not ensuring that a set of clearly defined, universally applicable rules govern how justice is dispensed, then we are, by definition, ensuring that the arbitrary will of individuals prevails instead.

Dasht-e-Leili, Ten Years Later

In December 2001, Afghanistan’s Northern Alliance, with strong U.S. backing consisting of special-forces units and CIA paramilitary operatives, were close to consolidating their control over the country. Kabul was occupied, and Kunduz, the last major Taliban stronghold in the north, had been crushed. Large numbers of Taliban forces and their allies had surrendered.

Then, in the north, as many as 2,000 prisoners who had surrendered to the Alliance or their American supporters were apparently shot to death or suffocated in sealed metal truck containers while being transferred to Afghanistan’s Sheberghan prison. The dead prisoners from this “convoy of death” were then buried in the northern Afghanistan desert, at Dasht-e-Leili. By the next year, many of the bodies had been exhumed and examined. Some of them bore clear signs of torture.

The incident is without doubt the most serious war crime arising out of the U.S. and Northern Alliance campaign to defeat the Taliban and establish a new regime in Afghanistan. To the best of our knowledge, Americans do not appear to have been involved in carrying out the atrocities, which were reportedly carried out by forces controlled by General Rashid Dostum, an ethnic Uzbek warlord who commanded forces in the vicinity of Mazar-e-Sharif, on the Uzbekistan frontier. The Rumsfeld Pentagon disclaimed the U.S. responsibility to investigate the incident on these grounds, and strained to cover up the incident. But it was later established that a significant number of American advisers were on hand at the time of the massacre.

Following these disclosures, in July 2009, CNN’s Anderson Cooper pressed President Barack Obama about the incident. Obama stated that he would ask his national security team “to collect the facts” and would “make a decision on how to approach it once the facts were known.” More than two years have passed since this pledge, but no further evidence has emerged, and no statement or report has been produced to show that an investigation was conducted.

To mark the tenth anniversary of the Dasht-e-Leili massacre, Physicians for Human Rights (PHR), an organization that played a key role in uncovering the scope of the incident, has written President Obama to remind him of his promise. “PHR urges you to review and make public the results of your investigation into the Dasht-e-Leili massacre and to address accountability by the U.S. and Afghanistan in regard to this atrocity,” the organization writes.

Nations rarely want to fully expose their involvement in mass human-rights violations. That is true even of countries with an otherwise respectable record of observing the Geneva Conventions and other international instruments of justice. In the case of the Dasht-e-Leili massacre, it is fairly easy to envision how figures within the Pentagon and CIA would push back against an effort to expose the facts. Echoing the Rumsfeld era, they would argue that the massacre was carried out by Dostum’s people, and that they had nothing to do with it. American personnel were present only in an advisory role. Moreover, they might add, uncovering the truth about Dasht-e-Leili would only complicate an already difficult political balancing act for Kabul — Dostum is now viewed as the leader of the nation’s Uzbeks, after all, and reconciling him to Kabul is essential if the Afghan government wishes to hold the north against the resurgent Taliban.

This line of argument could be true, or it could be obscuring darker truths. Exposing atrocities is always politically messy. Nevertheless, an honest, thorough investigation and exposure of the facts, no matter how unpalatable they may be, is a legal and moral obligation for the United States. During the Bush years, the Pentagon discharged that responsibility impressively when ordinary soldiers were involved — but the minute senior political figures or their policy decisions were implicated, a snow storm of obfuscation and denial brought inquiry to a standstill. There is every reason to suspect that the same pattern exists today.

And so, President Obama’s promise to Anderson Cooper seems to have faded in favor of political expedience. Pledging to “look forward, not back” will not erase the stain of Dasht-e-Leili. It will only associate that stain more strongly with the culture of unaccountability in Washington.

Inside the CIA’s Black Site in Bucharest

Reporters for German network ARD’s Panorama newsmagazine and the Associated Press have pieced together key details surrounding the CIA’s operation of a black site in Bucharest, Romania. AP’s Adam Goldman and Matt Apuzzo write:

In northern Bucharest, in a busy residential neighborhood minutes from the center of Romania’s capital city, is a secret that the Romanian government has tried for years to protect. For years, the CIA used a government building — codenamed Bright Light — as a makeshift prison for its most valuable detainees. There, it held al-Qaida operatives Khalid Sheik Mohammad, the mastermind of 9/11, and others in a basement prison until 2006, the year some were sent to Guantánamo Bay, according to former U.S. intelligence officials familiar with the location and inner workings of the prison…

Unlike the CIA’s facility in Lithuania’s countryside or the one hidden in a Polish military installation, the CIA’s prison in Romania was not in a remote location. It was hidden in plain sight, a couple blocks off a major boulevard on a street lined with trees and homes, along busy train tracks. The building is used as the National Registry Office for Classified Information, which is also known as ORNISS. Classified information from NATO and the European Union is stored there. Former intelligence officials both described the location of the prison and identified pictures of the building.

The facility’s address is Strada Mureș 4, according to the German account.

With typically wishful thinking, CIA general counsel Stephen Preston claimed in September that “the controversy has largely subsided.” In fact, criminal probes across Europe are just now exposing the full scope of the CIA’s black sites. Under the CIA program, which was terminated by President Bush in September 2006, terrorism suspects were held and questioned using waterboarding and other Justice Department–approved torture methods that the Bush Administration labeled “enhanced interrogation techniques.” Bush-era Justice officials continue to insist that the techniques were lawful; their successors at the Obama Justice Department disagree, but have declined to investigate or prosecute their predecessors, giving legitimacy to the “golden shield” memoranda of the Bush DOJ.

It is clear, however, that enhanced interrogation techniques are criminal under the laws of Poland, Lithuania, and Romania, which are bound by the standards of the European Convention on Human Rights. Similarly, the operation of a black-site system where torture takes place is defined as a crime against humanity under the International Convention for the Protection of All Persons from Enforced Disappearance, which went into force on December 23, 2010 (though it simply declares previously existing international law), and which American diplomats, acting under the instruction of the Bush Administration, vigorously attempted to obstruct. WikiLeaks has also disclosed aggressive efforts by American diplomats to interfere with criminal investigations launched in Spain, Germany, and Italy into the CIA’s black-sites program.

The Romanian officials naturally deny everything. It is noteworthy that Romania was seeking admission to NATO in the first few years after 9/11. It appears that the United States pressed Romania to cooperate with its black-site torture network as a means of gaining NATO membership — and indeed, the location of the black site itself, in a building that now sports a NATO flag out front, helps drive that point home.

The AP article goes on to note that the alleged USS Cole bombing plotter Abd al-Rahim al-Nashiri appears to have been held in the facility between 2003 and September 2006, when he was removed to Guantánamo.

ARD correspondent John Goetz told me, “What is amazing is that outside of the flight logs and some memos made in Washington, we know virtually nothing about the inside of the CIA prison system. Unfortunately, most editors think it has already been told, when the opposite is the case.” Goetz stated that the new disclosures, which he developed jointly with Goldman and Apuzzo at AP, were made possible by the accounts of former CIA agents, who identified the site. The ARD report airs at 10 p.m., Middle European Time, and a preview can be seen here.

Unpardonable

Dafna Linzer and some of her colleagues at ProPublica have published a two-part feature in the Washington Post based on their year-long study of the American presidential-pardons system. The story’s conclusions are depressing, but they will surprise no one who has closely studied the Department of Justice in recent years:

White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities, a ProPublica examination has found. Blacks have had the poorest chance of receiving the president’s ultimate act of mercy, according to an analysis of previously unreleased records and related data.

Figures from the Clinton and Bush Administrations later respond to these findings with the usual amazement at just how this could be. Their reactions may have been sincere, but if so, they were extremely naive.

The ProPublica story is backed by a considerable collection of data and some compelling side-by-side comparisons:

An African American woman from Little Rock, fined $3,000 for underreporting her income in 1989, was denied a pardon; a white woman from the same city who faked multiple tax returns to collect more than $25,000 in refunds got one. A black, first-time drug offender — a Vietnam veteran who got probation in South Carolina for possessing 1.1 grams of crack — was turned down. A white, fourth-time drug offender who did prison time for selling 1,050 grams of methamphetamine was pardoned.

The study also found that pardon-seekers who had access to elected officials dramatically improved their odds of success. In the American political system, of course, access to elected officials is most easily secured by making generous campaign contributions:

Since 2000, a total of 196 members of Congress — 126 Republicans and 70 Democrats — have written to the pardons office on behalf of more than 200 donors and constituents, according to copies of their letters obtained through the Freedom of Information Act. Many of the letters urged the White House and the Justice Department to take special note of felons whom lawmakers described as close friends.

A statistical analysis of nearly 500 pardon applicants during the Bush Administration suggests that advocacy makes a difference. Applicants with a member of Congress in their corner were three times as likely to win a pardon as those without such backing. Interviews and documents show a lawmaker’s support can speed up a stalled application, counter negative information and ratchet up pressure for an approval.

Pardons have played a significant role in the history of American political discourse: Gerald Ford’s decision to pardon Richard Nixon; George H.W. Bush’s pardoning of Caspar Weinberger and other Iran-Contra conspirators; Bill Clinton’s pardoning of tax cheat Marc Rich; George W. Bush’s commutation of Scooter Libby’s sentence. But the ProPublica study suggests that the real scandal surrounding the pardons process is far more systematic and lies outside these high-profile cases.

America today has risen to a position of leadership among nations in one humiliating category: per capita rate of incarceration. This ranking has been built largely on the basis of nonviolent crimes, in particular those relating to drug use. The laws for these crimes are not uniformly applied. They destroy the lives of minorities and the poor, while whites and those with means find the right lawyers and sympathetic law-enforcement officials, who permit them to sweep the matter under the carpet, or at least to avoid prolonged prison time.

The ProPublica series appears as I am two-thirds of the way through William J. Stuntz’s The Collapse of American Criminal Justice, a hugely important and timely work. Stuntz, who passed away earlier this year, was a conservative evangelical with political views quite far from my own. Yet reading his book, I am immensely impressed by the candor and clarity of his critique of the American justice system, and find almost nothing to disagree with. And in examining the ProPublica series, I am struck by how thoroughly it validates Stuntz’s critique of a justice system in which race, wealth, and political clout play embarrassing and decisive roles.

The presidential-pardon system should exist to right errors in the justice system, to set free those who have been wrongfully prosecuted and convicted, and to mitigate the sentences of those who have been treated with undue harshness. It should be an escape valve for the system’s misfires. But the ProPublica study shows clearly that it is not. By requiring a confession and acknowledgement of guilt, the pardons process systematically precludes any notion that the criminal-justice system could misfire. What matters instead, it turns out, is having a friend who has a friend on the president’s staff, having made campaign contributions to the right people, or commanding the resources to navigate the application process.

The real scandal is not some of the pardons that have been issued, but rather the absurd paucity of pardons. It is also the administration of the process by the Department of Justice and the White House. Clearly, uniform standards should be applied to the pardons system. But just as clearly, the system should not be overseen by an entity that views successful prosecutions as the primary proof of its utility, and that has developed an institutional incapacity to admit to mistakes or wrongdoing, even when that has meant sending an innocent man or woman to jail. Rather, the system should be administered by professionals who treat it with the seriousness it deserves; indeed, it needs to be committed to a person with the conscience, incorruptibility, and diligence of a William J. Stuntz.

Blair Addresses the CIA, Drones, and Pakistan

On Monday, Admiral Denis Blair, former National Intelligence Director for President Obama, presented remarks concerning military readiness and potential defense budget cuts at a function hosted by the Aspen Institute. In response to a question from Fox News’s Catherine Herridge about the development of drone policy, Blair offered a surprisingly forceful critique of the CIA’s drone war in Pakistan:

Covert action that goes on for years doesn’t generally stay covert. And you need a way to make it something that is part of your overt policy. I think that the way that we know about to do that is to make it a military operation and to — therefore, when you are going to be using drones over a long period of time, I would say you ought to give strong consideration to running those as military operations.

Within the armed forces we have a set of procedures that are open, known for how you make decisions about when to use deadly force or not, levels of approval degrees of proof and so on and they are things that can be and should be openly put out. So yet another of the problems of trying to conduct long-term sustained covert operations is this secrecy, which you do for other purposes but then puts you in this position which we said. So, I argue strongly that covert action should be retained for relatively short duration operations which — no kidding — should not be talked about and should not be publicized. That if something has been going for a long period of time, somebody else ought to do it, not intelligence agencies.

The remarks can be viewed on CSPAN here, beginning at the 1:17 mark.

Blair was sharply critical of the CIA-run drone war in Pakistan in his final months in the Obama White House, and he has acknowledged that friction with the CIA led to his departure. But his critique (which is almost identical to the one I have been raising for the past three years) is firmly rooted in American national-security doctrine.

The CIA has been able to stifle serious discussion of its highly anomalous military role in Pakistan thanks to a combination of mission creep and secrecy. First the agency secured command of drones as an intelligence asset. Then it gained control of drones armed with lethal weaponry for occasional covert operations. These two stages were arguably within the scope of the agency’s charter under the National Security Act. But then developments in Pakistan during the course of the Afghanistan War led the White House to conclude that drone operations there were best conducted covertly and by the CIA. This clearly occurred because Islamabad wanted to maintain a posture in which it publicly opposed the use of drones, even as it was not only enabling them but actively helping the U.S. target at least some of the strikes.

As Blair points out, the CIA ended up running a military campaign that has entailed hundreds of strikes, often linked to hostilities in Afghanistan, over a period of seven years. The agency developed targets, operated strikes, and performed post-strike assessments, all using covert assets on Pakistani soil. The scope of this campaign amounts to a de facto militarization of the CIA — minus the training, procedures, and public justification that Blair notes must accompany military action.

The current crisis in U.S.–Pakistan relations — which is to some extent the consequence of avoidable missteps by the CIA, such as the Raymond Davis affair — further validates Blair’s critique. As the United States and Pakistan seek to mend their relationship, the White House should carefully reassess some of the decisions that have led to the breakdown, one of which is clearly the unprecedented, essentially military mission being conducted by the CIA. Blair’s resistance may have earned him Langley’s enmity, and may have hastened his departure from the White House, but he was right about every element of it. Indeed, the CIA’s drone war goes to the heart of America’s challenge in forging a stable relationship with Pakistan and the nations emerging from the Arab Spring. The campaign cannot be reconciled with the Obama Administration’s talk of dedication to democracy, nor of respect for the rule of law.

A Club of Liars, Demagogues, and Fools

The German newsweekly Spiegel takes the latest disclosures concerning Herman Cain and the rise of Newt Gingrich as an opportunity to offer a foreign bird’s-eye view of the current Republican Party and the American media froth around it. My translation:

“Africa is a country. The Taliban rule in Libya. Muslims are terrorists. Immigrants are mostly criminals, Occupy Wall Street protesters are always dirty. And women who claim to have been sexually molested should kindly keep quiet.”

Welcome to the wonderful world of the Republican Party. Or rather: to the distorted world of its presidential campaign. For months it has coiled through the country like a traveling circus, from debate to debate, from scandal to scandal, contesting the mightiest office in the world — and nothing is ever too unfathomable for them… These eight presidential wannabes are happy enough not only to demolish their own reputations but also that of their party, the once worthy party of Abraham Lincoln. They are also ruining the reputation of the United States.

They lie, deceive, scuffle and speak every manner of idiocy. And they expose a political, economic, geographic and historical ignorance compared to which George W. Bush sounds like a scholar. Even the party’s boosters are horrified by the spectacle…

Platitudes in lieu of programs: in serious times that demand the smartest, these clowns offer blather that is an insult to the intelligence of all Americans. But as with all freak shows, it would be impossible without a stage, the U.S. media, which has been neutered by the demands of political correctness, and a welcoming audience, a party base that seems to have been lobotomized overnight. Notwithstanding the subterranean depths of the primary process, the press and broadcasters proclaim one clown after the next to be the new frontrunner, in predictable news cycles of forty-five days.

Spiegel ties the disintegration of the Republican Party to the Tea Party, “a ‘popular movement’ that was sponsored by Fox News and never showed any interest in the business of government — neither in information nor intellect, which are its requisites, but rather in a self-marketing exercise driven by commissions and millions.”

The most important observation Spiegel offers is this: At a time of mounting crisis, when much of the world is looking to the United States for leadership and initiative, the celebration of sleaze and ignorance that has marked the Republican primary is damaging the reputation of the nation as a whole. Even those who despise the G.O.P. should be concerned about the depths to which the party has sunk.

The DSK Affair Unravels?

On May 14, 2011, the then-director of the International Monetary Fund, Dominique Strauss-Kahn, had a six-minute encounter with a chambermaid at the Sofitel Hotel in midtown Manhattan. The brief interaction had momentous consequences. Before, DSK was widely believed to be cruising toward becoming the Socialist Party’s candidate to challenge France’s vulnerable incumbent president, Nicolas Sarkozy. After, DSK was forced to resign his IMF post and saw his political career go up in smoke, as the Manhattan district attorney brought criminal charges that characterized the hotel incident as a violent sexual assault. The case imploded when prosecutors lost faith in the credibility of the chambermaid, and gradually the case faded from the headlines.

Journalist Edward Jay Epstein doggedly pursued the story, however, and uncovered details that raise questions about the established narratives surrounding the case, and that are bound to be viewed as validation of DSK by his friends and supporters. Epstein’s work, published in the New York Review of Books, meticulously reassembles the events of the day, drawing on hotel passcard data, as well as cell phone and video records that mark the comings and goings of DSK and some figures who have not yet been named in the affair. The account adds to the list of inconsistencies plaguing the version of events that the chambermaid and prosecutors initially put forward, and raises suspicions about a number of other players — some within the staff of the Sofitel Hotel and its parent company, others outside of it. Among the evidence that Epstein uncovered is videotape footage of a strange event:

At 1:31 — one hour after [chambermaid Nafissatou] Diallo had first told a supervisor that she had been assaulted by the client in the presidential suite — [Hotel Security Chief] Adrian Branch placed a 911 call to the police. Less than two minutes later, the footage from the two surveillance cameras shows [Hotel Chief Engineer Brian] Yearwood and an unidentified man walking from the security office to an adjacent area. This is the same unidentified man who had accompanied Diallo to the security office at 12:52 PM. There, the two men high-five each other, clap their hands, and do what looks like an extraordinary dance of celebration that lasts for three minutes.

Epstein also finds evidence that DSK was being targeted and that his email had been hacked; according to one source, it was being read by persons connected with Sarkozy’s political party. DSK had been warned and was apparently planning to have his iPad and BlackBerry examined to see if their security had been compromised. Before he could do so, the BlackBerry disappeared in DSK’s Sofitel suite. Records for the device show that it was disabled using fairly sophisticated procedures at 12:51 that day. DSK’s calls and efforts to retrieve the BlackBerry led directly to his being arrested and hauled off an Air France flight that was about to leave for Paris.

Accor Hotels, which operates the Sofitel, responded clumsily to Epstein’s disclosures: first by denying the existence of the video, and then by stating that the hotel’s engineer and security chief had “categorically denied that their exchange had anything to do” with the DSK affair. But the sequence of events Epstein describes makes that explanation seem rather improbable. Epstein has since demanded that the entire video, which he clearly has viewed, be released.

These developments should be examined carefully by the Manhattan district attorney, because they reveal what may have been an elaborate effort to mislead law-enforcement officials about what happened that night. False police reports are rarely themselves the subject of a prosecution, but this effort involved enormous public attention and, in the end, considerable embarrassment to the prosecutors — perhaps enough to warrant making an exception. Epstein’s disclosures don’t reach far enough to establish a conspiracy, but they do suggest that the DSK affair has more moving parts than was previously recognized. They also provide reason to pause and express appreciation for the New York Review, which has offered serious investigative journalism where most major U.S. newspapers and broadcast media embarrassed themselves by rushing to conclusions that now appear to have been unwarranted. The Review is reaping the usual reward: while its report has unleashed a political firestorm in France, it is being largely ignored by major American news outlets.

Quesnay: The Despotism of Natural Law

Franz Xaver Messerschmidt, The Ill-Humored Man (1770)

Les loix naturelles et fondamentales des sociétés sont la règle souveraine et decisive du juste et de l’injuste absolu, du bien et du mal moral, elles s’impriment dans le cœur des hommes, elles sont la lumière qui les éclaire et maîtrise leur conscience: cette lumière n’est affaiblie ou obscurcie que par leurs passions déréglées. Le principal objet des loix positives est ce dérèglement même auquel elles oposent une sanction redoubtable aux hommes pervers: car en gros de quoi s’agit-it pour la prospérité d’une nation? De cultiver la terre avec le plus grand succès possible et de preserver la société des voleurs et des méchans. La première partie est ordonnée par l’intérêt, la seconde est confiée au gouvernement civil. Les hommes de bonne volonté n’ont besoin que d’instructions qui leur dévelopent les vérités lumineuses qui ne s’aperçoivent distinctement et vivement que par l’exercice de la raison. Les lois positives ne peuvent suppléer que fort imparfaitement à cette connaissance intellectuelle, leur injonction trop servilement assujettie à la lettre interdit plus aux hommes l’usage de la raison qu’elle ne les instruit.

The natural and fundamental laws of societies are the sovereign and decisive rule of the fair and of absolute injustice, of moral good and evil, they imprint themselves on the hearts of men, they are the light that illuminates and masters their conscience: this light can only be weakened or obscured by their disordered passions. The principal objective of positive laws is this very disorderliness, to which they oppose a severe punishment to those perverse men. For, on the whole, what is it that is truly necessary for the prosperity of a nation? To cultivate the land as successfully as possible and to keep society safe from thieves and rogues. The first part is governed by self-interest, the second is entrusted to the civil government. Men of good will have need only of guidance which these luminous truths, which are perceived distinctly and vividly only by the exercise of reason, will provide them. Positive laws provide very poor substitutes for intellectual understanding given that their servile subordination to the literal text inhibits men from using their reason more than it educates them.

—François Quesnay, “Despotisme de la Chine,” first published in Éphémérides du citoyen (1767), reproduced in Œuvres économiques complètes et autres textes, pp. 1016–17 (2005)(S.H./B.H. transl.)

When Thomas Paine wrote in Common Sense that “in free countries the law ought to be King; and there ought to be no other,” and when John Adams wrote the same year that “good government is an Empire of laws,” they were both echoing language that had been honed and developed in prior decades by the French authors of laissez-faire capitalism. François Quesnay may have been chief among them. In conversation with the Dauphin in 1752, for instance, Quesnay denied the Dauphin’s suggestion that the king’s duties were burdensome, insisting instead that the sovereign need do nothing but allow the law to rule. In a properly functioning monarchy, the king was little more than an ornament; the law and organs of justice administered a country whose subjects were free to pursue their own economic interests, within certain limits.

No doubt, these ideas influenced the Bourbon monarchy in the second half of the eighteenth century and led to the improvement of classes that were already propertied and industrious. But we have good reason to question whether their effect was universally positive.

At the time of the American revolution, the concept of the dominance of laws over men had become essential to the colonies’ liberal and radically democratic credo — amounting to a demand that even the sovereign be held accountable under the law. The economic underpinnings of Quesnay’s idea were still there, but they had become somewhat subsidiary to the notion of civil liberties. The French Physiocrats, whose philosophy Quesnay helped to define, largely rallied to the American cause; one of them, Éleuthère Irénée du Pont de Nemours, transplanted himself to Delaware to pursue his business interests and his ideas, founding what would become an American chemicals giant. Still, although these thinkers were driven by a classically liberal political premises, they managed to reconcile themselves with ease to the French monarchy. With time, however, some came to embrace the French Revolution, just as they had taken up the American.

It is a common misconception, though one that abounds in American politics, that laissez-faire capitalism supposes less law and less regulation. In fact, it supposes a legal regime that advances the interests of the entrepreneurial class, which at length is what evolved in America. The Physiocrats advanced an even more vigorous posture regarding laws and their enforcement: “The supreme being wants man to be free; but this liberty is viewed from varying perspectives under which man might preserve order or otherwise be thrown into a state of disorder,” Quesnay wrote. “This supposes the need for precise laws defining precisely his duties before God, towards himself, towards others… perspectives in which politics and religion are brought together to define a natural order which they must follow.” Hence, Quesnay wrote, an intelligent observer would not seek deregulation, which would lead to destructive chaos, but rather regulations that coincide with laissez-faire economic principles — namely regulations that promote the rights and protect the property of the entrepreneur.

This position sounds inherently contradictory, and perhaps it is, but it has been borne by the free-market movement to the present day. America has witnessed a resurgence of laissez-faire arguments over the past fifty years, as the Chicago School has cruised to dominance in the nation’s law and business faculties, and has come to control discussion of basic policy issues. It is therefore no surprise that this same period has witnessed a dramatic explosion in the nation’s prison population, a harshness in sentencing unequalled among Western nations, and the increased privatization of the criminal-justice process. Indeed, the administration of laws has emerged as simply another business and another source of profit. Somewhere along the way, the fundamental notion of justice has faded both in importance and in meaning.

As Bernard Harcourt has persuasively argued, the germ of this immense problem can be found in the early works of the Physiocrats, who provided much of the foundation upon which Milton Friedman and his followers constructed their school. Both movements, it seems, have led to considerable skillful and innovative thought. But as Voltaire wrote in two critical letters, the basic philosophy contains an admixture of error, even as it has been pursued with a boundless enthusiasm and an intellectual arrogance that should not be mistaken for true science.

Franz Xaver Messerschmidt was a Bavarian sculptor of the neoclassical period. Much of his work focused on physiognomy, the notion that outward facial expressions can reveal the inner spiritual state of their subject. His work is the subject of a recent major exhibition mounted jointly by New York’s Neue Galerie and the Louvre in Paris. His work is discussed by Willibald Sauerländer in a marvelous New York Review of Books essay from October 2010, entitled “It’s All in the Head.”

The notion that the force of nature caused chaos to give way to reason and order was essential to the early Enlightenment. Listen to an unusual orchestral presentation of this concept in the opening (“Chaos”) of Jean-Féry Rebel’s ballet Les élémens (1737). A series of dissonant chords, unheard of in his time, dissolves into harmonies, then is followed by a presentation of the elements. The performance is by Reinhard Goebel and Musica Antiqua Köln:

Propagandastan

With the predictable failure of the “Super Committee,” Washington is now coasting toward mandatory cuts to the holiest of holies within the Beltway: the defense budget. Against this backdrop, David Trilling’s excellent investigative piece in Foreign Policy, entitled “Propagandastan,” uncovers one of the most ridiculous wastes of taxpayer funds ever: the payment of tens of millions of dollars to a subsidiary of the massive defense contractor General Dynamics for the purpose of whitewashing the human rights records of dictators in Central Asia. How does this advance America’s national security? Presumably the Pentagon will get around to explaining that, someday.

The Justice Cascade: Six Questions for Kathryn Sikkink

Kathryn Sikkink has spent thirty-five years studying how nations hold their leaders to account for such crimes as kidnapping, torture, and extrajudicial execution, which are often committed against the backdrop of civil insurrection, war, or antiterroism campaigns. The conclusions she draws are startling: in place of historical doctrines of immunity, a new trend she dubs the “justice cascade” is pressing national criminal-justice systems and international law toward greater accountability. I put six questions to Sikkink about her study, as well as her opinion on what the justice cascade means for American leaders who adopted practices that in other nations led to demands for accountability.

1. You start your work by examining the collapses of brutal military dictatorships in Europe’s southern tier (Greece, Spain and Portugal), and point out that although political and social processes led to accountability in Greece and Portugal, they didn’t in Spain. Will accountability for the horrendous crimes of the Franco period be avoided forever, or have they merely been delayed?

Kathryn Sikkink (photo by Doug Knutson)

Based on charges filed by associations of victims and their families, Spanish Judge Baltasar Garzón opened an investigation in 2008 into more than 100,000 cases of executions and disappearances that took place from 1936 to 1951. So, we are talking here about executions and disappearances that happened between sixty and seventy-five years ago. My book is about the trend toward individual criminal accountability, which requires that cases be brought against specific living perpetrators. Virtually all of the suspected perpetrators in Spain are now dead. Although individual criminal accountability for human rights violations from that period is no longer possible, other forms of accountability are needed. In particular, many family members still hope to locate the remains of their relatives, to rebury those remains, and to know more about the circumstances that led to the deaths. Such truth-telling is still necessary and possible, even if individual criminal accountability is not.

2. Samuel Huntington wrote that if accountability trials were to be conducted, they had to occur immediately in the wake of transition or not at all. His view seems to have been the received wisdom of political scientists twenty years ago. Have the intervening events tended to sustain or to refute him?

The single most forceful finding of my research is that on this issue, Huntington was completely wrong. Justice comes slowly — often painfully, unacceptably slowly in the eyes of victims — but surprisingly it often does come. Domestic courts in Uruguay took twenty years to sentence former authoritarian leaders Juan María Bordaberry and General Gregorio Álvarez for ordering the murders of political opponents. The Extraordinary Chambers in Cambodia issued its first conviction last year, more than thirty years after the horrors of the killing fields.

The most interesting evidence from my research, though, shows not that justice is occurring even after many years, but that prosecutions appear to deter future human rights violations. A careful statistical analysis of all such cases in transitional countries shows that those who prosecute offenders are more likely to see improvements in human rights. I believe this means that since human rights prosecutions increase the perceived likelihood of punishment, they deter potential repressors from killing or torturing their opponents.

3. In Argentina, Chile, and Uruguay, nasty dictatorships gave way to democracy under circumstances in which the culprits secured some form of amnesty or immunity. Yet in none of these countries did those arrangements hold up over time. Why?

There were very large numbers of victims in all of these countries, who provided the backbone for well-organized human rights movements that worked hard for accountability. They eventually got help from their own judicial systems and the Inter-American Court of Human Rights. These activists were incredibly persistent and ingenious in finding legal ways to undermine or circumvent the amnesty laws.

Since I sent my book to press, new developments in the Southern Cone of South America have continued to reveal the persistence of human rights advocates. In Argentina, one of the most notorious perpetrators, former naval officer Alfredo Astiz — the so-called “angel of death,” who infiltrated the Mothers of the Plaza de Mayo and caused the disappearance of some members of that group — was found guilty of torture, murder, and forced disappearance, and sentenced to life in prison. And Brazil, the only transitional country in the region that had not seen any human rights prosecutions for violations committed during the authoritarian regime, decided to set up its first official truth commission to examine events during its authoritarian period. Also, this October, Uruguay’s parliament derogated the country’s long-standing amnesty law and declared the crimes of its past dictatorship to have been crimes against humanity. I think what carried the day was the deep outrage of many young Uruguayans, some of whom weren’t alive when the events occurred, yet who asked how powerful individuals who had ordered the murders of Uruguayans could be sheltered from prosecution.

4. While you build an impressive case for the triumph of accountability principles across Europe and Latin America, and in many other nations around the globe, the United States in the era of Bush and Obama seems to be a stubborn outlier. What has happened in America that puts this country on a course so sharply at odds with most of the world, and in particular with our allies?

Although demands for justice have been remarkably resilient, it has not been easy for any country to confront its past. Almost all leaders, faced with the dilemmas of accountability, have wanted to turn the page and look toward the future. Even in countries like Greece and Argentina, which have seen strong popular demand for accountability, leaders faced agonizing choices that they feared could lead to military coups. As the United States confronts the legacies of the Bush Administration’s human rights violations, it will help to remember that countries with far weaker political and judicial systems have nevertheless managed to hold their leaders accountable.

The U.S. military has prosecuted a series of cases involving soldiers engaged in the abuse of detainees, but the definition of torture in the UN Convention against Torture looks beyond those who actually inflict pain, to officials who instigate, consent to, or acquiesce to torture or cruel and degrading treatment. To date, almost all of the investigated military personnel have been enlisted soldiers, not officers, and no U.S. military officer or civilian official has been held accountable for criminal acts committed by subordinates. As I document in my chapter on the United States, we are unlikely to see further moves toward domestic criminal accountability, because U.S. officials during the Bush Administration did everything possible to protect themselves from prosecution. But while legislation might protect U.S. officials from domestic prosecution, it cannot necessarily protect them from foreign courts, such as those of Italy, whose courts were the first to convict U.S. citizens for crimes committed as part of the war on terrorism during the Bush years.

The interesting question is whether the lack of criminal accountability for higher-level U.S. officials will eventually lead to more attempts at foreign criminal prosecutions. With the exception of the case in Italy, foreign prosecutions against Rumsfeld and other officials have not succeeded, in part because foreign judges have accepted claims that the United States is making efforts at accountability. Two civil cases against Rumsfeld for torture are now moving ahead in U.S. courts, so I think they will be very important in establishing whether some form of accountability for higher-level officials is possible in the U.S. judicial system.

5. As you describe it, the development of an International Criminal Court with an independent, autonomous prosecutor was largely opposed by the United States. Today, Hillary Clinton has maintained a formally ambiguous view of the court, but she has pushed to see key matters, such as the cases against Muammar Qaddafi and Bashar al-Assad, placed under its control. Does this suggest to you a growing reconciliation of the United States to the ICC concept?

The United States has reconciled itself to the ICC concept in the sense that we are now willing to use it to pursue certain foreign-policy objectives, like the indictment against Qaddafi. But we have not changed our position about a court with an independent prosecutor to the extent of being any more willing or able to ratify the Rome Statute and submit ourselves to the ICC’s jurisdiction. I don’t expect to see U.S. ratification any time in the near future.

6. While your book was with your press, the Arab Spring erupted, building off of demands for human dignity and an insistence on the principle of accountability for torture and crimes against humanity. Many (notably in the CIA) had predicted that such a shift was impossible. Do you see the Arab Spring as further validation of ideas about the justice cascade, particularly of the notion that individual human actors and NGOs, and not just states, are in a position to drive this process?

Yes, I believe that the demands for accountability in Egypt, Tunisia, and elsewhere in the Arab world are evidence for the justice cascade. This concept measures the increase in the legitimacy of the norm of individual criminal accountability — so the fact that protestors in Egypt immediately demanded accountability for Mubarak underscores how the legitimacy of such demands has increased. But my research also suggests that accountability will not come easily in the Middle East, in large part because it has not been easy in any part of the world, including places with longer democratic traditions and better-functioning judicial systems. The number of human rights prosecutions around the globe has grown dramatically in the past twenty years, but in no case have they occurred smoothly and without delays, pushback, and unexpected legal maneuvering. Delay has often been the rule, not the exception. So the “advice” I might give to the human rights activists in the Arab Spring is this: You must know that justice takes time, often too much time, but that it is possible. Expect delays and disappointments. But only if advocates of justice do not tire nor relent, not only in your country, but elsewhere in the world, will accountability be realized.