No Comment — December 16, 2009, 1:38 pm

The State Secrets Charade Enters a New Round

The Holder Justice Department continued its quest to keep the Bush Administration’s program of extraordinary renditions out of the public eye with oral argument before the en banc Ninth Circuit Court of Appeals on Tuesday. So far the district court bowed to the government’s request to toss the suit out of secrecy concerns, while an appeals court panel saw through the government’s threadbare arguments and reversed, ordering the case to go to trial. The government responded by asking for the entire court of appeals to look at the question.

The “state secrets” doctrine is legitimately invoked to protect military and diplomatic secrets essential to the nation’s security. In this case, Justice Department lawyer Douglas Letter argued, “We are not asking you to do anything radical here.” But that was only the first in a series of whoppers he produced as the argument proceeded. This case revolves around Jeppesen DataPlan, Inc., of San Jose, a Boeing subsidiary, which played a focal role in the renditions program. This was disclosed when a number of employees at Jeppesen, correctly convinced that the company was asking them to engage in a criminal enterprise, blew the whistle. Jane Mayer then published a comprehensive exposé of Jeppesen’s role in the program, under which individuals were “snatched” around the world, taken to black sites, and frequently tortured and abused for periods of months or years. So when the government talks about “state secrets” you have to remember that they are no longer “secret.” What it’s really talking about is immunity from suit or accountability for wrongful acts. Listen to Glenn Greenwald’s interview with plaintiff’s counsel Ben Wizner on just this point here.

Thus, what the Justice Department is asking of the Court of Appeals is extremely radical. It proposes to deny the right of individuals to seek compensation for claims that include torture and abuse—claims that they are permitted to bring under U.S. law, and which the government committed to allow them to bring by signing and ratifying the Convention Against Torture. Barack Obama delivered a ringing reaffirmation of those principles in Oslo last week. But Douglas Letter and his team are working feverishly to make President Obama into a liar. You’ll scan their briefs in vain for any recognition of the international commitments the United States has made not to torture, not to “disappear” individuals by holding them outside the course of law, and to hold government actors who engage in such criminal conduct to account for their misdeeds. Letter is working to subvert each of these commitments, and he starts by ignoring the fact that the commitments were ever made.

In effect, the Justice Department is not appearing in the Ninth Circuit to uphold the law. Rather, it is acting as a criminal defense shop for a group of serial offenders, who happen also to have been government actors. Indeed, we have copious evidence that the Justice Department itself was a full participant in the scheme, and any fair prosecution would certainly target senior Justice Department figures. Which is to say, the Justice Department is motivated in this case by an overarching desire to avoid the disclosure of its own criminal conduct.

“Disappearings” have been viewed as a jus cogens crime at least since 1946, when the United States first adopted that view, bringing criminal charges against government officials who developed and implemented a program almost identical to the CIA’s extraordinary renditions program. Some of the authors of that system received the death sentence. Others got sentences in the range of 7 to 10 years imprisonment. That is to say, the crime is an extremely serious one. It is exempted from the application of statutes of limitation, and it is also a crime of universal jurisdiction, meaning that any nation may exercise criminal jurisdiction to prosecute the offenders.

So, yes, what Mr. Letter is attempting to do is radical. He is using the resources of the Justice Department to conceal a crime. That act may well be viewed by prosecutors in the future as an extension of the underlying crime itself.

Although the underlying litigation in California is a civil suit, multiple criminal investigations are now looking into the working of the extraordinary renditions system. Ask Robert Seldon Lady, the CIA station chief in Milan, who was convicted of kidnapping and assault by an Italian court and sentenced to 8 years in prison for his role in an extraordinary renditions operation. It may seem ironic, but the Italian judge followed the recommendations made by U.S. Justice Department prosecutors at the end of World War II as to an appropriate punishment. Or ask the 22 other American civil servants (diplomats, military, CIA agents) also tried and convicted in the Milan court. Incidentally, the defense in that case offered up the same arguments Mr. Letter is making now, and the Italian court knew exactly how to deal with them. Claims of state secrecy could not, it concluded, be used to cover-up a particularly heinous and grave crime like “disappearing,” especially when it was combined with well-documented torture of the victim. That is the way a court in a modern democracy deals with “state secrecy” claims when serious criminality is involved. What the Justice Department demands of the Ninth Circuit is instead the jurisprudence of the twelfth century: it seeks to revive the doctrine of arcana imperii, or “mysteries of the state,” under which the emperor could stop any court proceeding in its tracks by saying that state secrets were involved.

The Italian prosecutors are not finished. They are working hard to extend their case to higher-ups at CIA and in the White House who authorized the kidnapping and torture of a Muslim cleric who was snatched off the streets of Milan. More indictments are likely. And the Italian criminal investigators are, I learned in a recent visit to Italy, cooperating closely with investigating magistrates in Spain, Germany, Poland, and the United Kingdom—all of whom are looking closely into the CIA’s renditions program and building case files for the potential prosecution of U.S. government agents who participated in it.

The Justice Department has a fair crack at getting a reversal out of the Ninth Circuit. Why? It’s a pure political calculus. The Ninth Circuit is heavily populated with Republican appointees who can be counted on to protect those who appointed them. Indeed, in the course of oral argument, only Republican-appointed judges went out of their way to make clear they leaned towards reversal. When the “state secrets” doctrine is used to block a litigant’s fair claims for compensation, that’s bad enough. When it occurs to obscure or cloak a grave crime, this is itself a crime against the republic, and it cries out for attention and exposure.

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October 2018


The Printed Word in Peril·

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In February, at an event at the 92nd Street Y’s Unterberg Poetry Center in New York, while sharing the stage with my fellow British writer Martin Amis and discussing the impact of screen-based reading and bidirectional digital media on the Republic of Letters, I threw this query out to an audience that I estimate was about three hundred strong: “Have any of you been reading anything by Norman Mailer in the past year?” After a while, one hand went up, then another tentatively semi-elevated. Frankly I was surprised it was that many. Of course, there are good reasons why Mailer in particular should suffer posthumous obscurity with such alacrity: his brand of male essentialist braggadocio is arguably extraneous in the age of Trump, Weinstein, and fourth-wave feminism. Moreover, Mailer’s brilliance, such as it was, seemed, even at the time he wrote, to be sparks struck by a steely intellect against the tortuous rocks of a particular age, even though he labored tirelessly to the very end, principally as the booster of his own reputation.

It’s also true that, as J. G. Ballard sagely remarked, for a writer, death is always a career move, and for most of us the move is a demotion, as we’re simultaneously lowered into the grave and our works into the dustbin. But having noted all of the above, it remains the case that Mailer’s death coincided with another far greater extinction: that of the literary milieu in which he’d come to prominence and been sustained for decades. It’s a milieu that I hesitate to identify entirely with what’s understood by the ringing phrase “the Republic of Letters,” even though the overlap between the two was once great indeed; and I cannot be alone in wondering what will remain of the latter once the former, which not long ago seemed so very solid, has melted into air.

What I do feel isolated in—if not entirely alone in—is my determination, as a novelist, essayist, and journalist, not to rage against the dying of literature’s light, although it’s surprising how little of this there is, but merely to examine the great technological discontinuity of our era, as we pivot from the wave to the particle, the fractal to the fungible, and the mechanical to the computable. I first began consciously responding, as a literary practitioner, to the manifold impacts of ­BDDM in the early 2000s—although, being the age I am, I have been feeling its effects throughout my working life—and I first started to write and speak publicly about it around a decade ago. Initially I had the impression I was being heard out, if reluctantly, but as the years have passed, my attempts to limn the shape of this epochal transformation have been met increasingly with outrage, and even abuse, in particular from my fellow writers.

As for my attempts to express the impact of the screen on the page, on the actual pages of literary novels, I now understand that these were altogether irrelevant to the requirement of the age that everything be easier, faster, and slicker in order to compel the attention of screen viewers. It strikes me that we’re now suffering collectively from a “tyranny of the virtual,” since we find ourselves unable to look away from the screens that mediate not just print but, increasingly, reality itself.

Photograph (detail) by Ellen Cantor from her Prior Pleasures series © The artist. Courtesy dnj Gallery, Santa Monica, California
Among Britain’s Anti-Semites·

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This is the story of how the institutions of British Jewry went to war with Jeremy Corbyn, the leader of the Labour Party. Corbyn is another feather in the wind of populism and a fragmentation of the old consensus and politesse. He was elected to the leadership by the party membership in 2015, and no one was more surprised than he. Between 1997 and 2010, Corbyn voted against his own party 428 times. He existed as an ideal, a rebuke to the Blairite leadership, and the only wise man on a ship of fools. His schtick is that of a weary, kindly, socialist Father Christmas, dragged from his vegetable patch to create a utopia almost against his will. But in 2015 the ideal became, reluctantly, flesh. Satirists mock him as Jesus Christ, and this is apt. But only just. He courts sainthood, and if you are very cynical you might say that, like Christ, he shows Jews what they should be. He once sat on the floor of a crowded train, though he was offered a first-class seat, possibly as a private act of penance to those who had, at one time or another, had no seat on a train.

When Corbyn became leader of the Labour Party, the British media, who are used to punching socialists, crawled over his record and found much to alarm the tiny Jewish community of 260,000. Corbyn called Hez­bollah “friends” and said Hamas, also his “friends,” were devoted “to long-term peace and social justice.” (He later said he regretted using that language.) He invited the Islamist leader Raed Salah, who has accused Jews of killing Christian children to drink their blood, to Parliament, and opposed his extradition. Corbyn is also a patron of the Palestine Solidarity Campaign and a former chair of Stop the War, at whose rallies they chant, “From the river to the sea / Palestine will be free.” (There is no rhyme for what will happen to the Jewish population in this paradise.) He was an early supporter of the Boycott, Divestment, and Sanctions (BDS) movement and its global campaign to delegitimize Israel and, through the right of return for Palestinians, end its existence as a Jewish state. (His office now maintains that he does not support BDS. The official Labour Party position is for a two-state solution.) In the most recent general election, only 13 percent of British Jews intended to vote Labour.

Corbyn freed something. The scandals bloomed, swiftly. In 2016 Naz Shah, Labour MP for Bradford West, was suspended from the party for sharing a Facebook post that suggested Israel be relocated to the United States. She apologized publicly, was reinstated, and is now a shadow women and equalities minister. Ken Livingstone, the former mayor of London and a political supporter of Corbyn, appeared on the radio to defend Shah and said, “When Hitler won his election in 1932, his policy then was that Jews should be moved to Israel. He was supporting Zionism before he went mad and ended up killing six million Jews.” For this comment, Livingstone was suspended from the party.

A protest against anti-Semitism in the Labour Party in Parliament Square, London, March 26, 2018 (detail) © Yui Mok/PA Images/Getty Images
Nothing but Gifts·

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If necessity is the stern but respectable mother of invention, then perhaps desperation is the derelict father of subterfuge. That was certainly the case when I moved to Seattle in 1979.

Though I’d lived there twice during the previous five years, I wasn’t prepared for the economic boom I found upon this latest arrival. Not only had rent increased sharply in all but the most destitute neighborhoods, landlords now routinely demanded first, last, and a hefty security deposit, which meant I was short by about fifty percent. Over the first week or so, I watched with mounting anxiety as food, gas, and lodging expenses reduced the meager half I did have to a severely deficient third. To make matters even more nerve-racking, I was relocating with my nine-year-old son, Ezra. More than my well-being was at stake.

A veteran of cold, solitary starts in strange cities, I knew our best hope wasn’t the classifieds, and certainly not an agency, but the serendipity of the streets—handmade for rent signs, crowded bulletin boards in laundromats and corner grocery stores, passersby on the sidewalk; I had to exploit every opportunity that might present itself, no matter how oblique or improbable. In Eastlake, at the edge of Lake Union between downtown Seattle and the University District, I spied a shabby but vacant one-story house on the corner of a block that was obviously undergoing transition—overgrown lots and foundation remnants where other houses once stood—and that had at least one permanent feature most right-minded people would find forbidding: an elevated section of Interstate 5 just across the street, attended by the incessant roar of cars and trucks. The house needed a new roof, a couple of coats of paint, and, judging by what Ezra and I could detect during a furtive inspection, major repair work inside, including replacing damaged plaster-and-lath walls with sheetrock. All of this, from my standpoint, meant that I might have found a solution to my dilemma.

The next step was locating the owner, a roundabout process that eventually required a trip to the tax assessor’s office. I called the person listed on the rolls and made an appointment. Then came the moment of truth, or, more precisely, untruth, when dire circumstance begot strategic deception. I’d never renovated so much as a closet, but that didn’t stop me from declaring confidently that I possessed both the skills and the willingness to restore the entire place to a presentable—and, therefore, rentable—state in exchange for being able to live there for free, with the length of stay to be determined as work progressed. To my immense relief, the pretense was well received. Indeed, the owner also seemed relieved, if a bit surprised, that he’d have seemingly trustworthy tenants; homeless people who camped beneath the freeway, he explained, had repeatedly broken into the house and used it for all manner of depravity. Telling myself that inspired charlatanry is superior to mundane trespassing—especially this instance of charlatanry, which would yield some actual good—I accepted the keys from my new landlord.

Photograph (detail) © Larry Towell/Magnum Photos
Checkpoint Nation·

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Laura Sandoval threaded her way through idling taxis and men selling bottles of water toward the entrance of the Cordova International Bridge, which links Ciudad Juárez, Mexico, to El Paso, Texas. Earlier that day, a bright Saturday in December 2012, Sandoval had crossed over to Juárez to console a friend whose wife had recently died. She had brought him a few items he had requested—eye drops, the chimichangas from Allsup’s he liked—and now that her care package had been delivered, she was in a hurry to get back to the Texas side, where she’d left her car. She had a …
Checkpoint on I-35 near Encinal, Texas (detail) © Gabriella Demczuk

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Happiness Is a Worn Gun


Illustration by Stan Fellows

Illustration by Stan Fellows

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

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