Legal Fiction

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Just to keep you updated, I'm still in the middle of a very busy period at work. I have several posts in the queue, but I don't have time to write them right now. Please bear with me - things will hopefully lighten up this week.

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A chorus rises from the center-left blogosphere - Marshall and Yglesias.

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Come my friends, and gaze into the crystal ball. Look closely and you will see the world that will be if Roe is overturned. Prosecutors will dig through confidential medical files at will. Doctors and young women will be sent to jail. Come behold. . .

Attorney General Phill Kline, a Republican who has made fighting abortion a staple of his two years in the post, is demanding the complete medical files of scores of women and girls who had late-term abortions, saying on Thursday that he needs the information to prosecute criminal cases.

Mr. Kline emphasized statutory rape at a news conference here but also spoke obliquely of other crimes that court documents suggest could include doctors' providing illegal late-term abortions and health professionals' failing to heed a state law that requires the reporting of suspected child sexual abuse.

. . .

The clinics' brief said that the subpoena covered "the entire, unredacted patient files of nearly 90 women who obtained abortions at two Kansas clinics in 2003" and that it was not limited by age or the absence of abuse reports.

This is indeed a disturbing universe.

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Too busy to write tonight. I do have a question though, and hopefully someone can explain it in the comments. Why is it so lame to be a Tory? Even though they've gained some on Blair's Labour Party lately (by immigrant bashing), the Tories are outpolled nearly two-to-one when you combine Labour and the Liberal Democrats. I guess I would just like to be enlightened on the way Tories are perceived in the public consciousness as compared to Republicans here.

That is all.

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Commenter rdturpin was kind enough to pass along this article from the Savannah Morning News (registration required):

It's been said that Social Security reform is the "third rail" of American politics -touch it, and voters will give you quite a jolt.

U.S. Rep. Jack Kingston, the Republican congressman from Savannah, learned that Tuesday as he swung through the area to continue a series of nine town-hall-style meetings on Social Security. At Armstrong Atlantic State University, the subject caused a crowd of 200 to become rowdy.

Questions were shouted out. The congressman was interrupted. And one of Kingston's assistants was booed when she announced an end to the hourlong discussion.

But one of audience members pointed the way toward something even bigger. He offered the Democrats a guide about how to go about shifting public perceptions of the party:

Of everything he heard Tuesday, the most impassioned comments came from the Rev. Michael J. Kavanaugh, pastor at Our Lady of Lourdes Church in Port Wentworth. The crowd applauded Kavanaugh after he urged Kingston to consider privatization of Social Security as a moral question.

"In the last election, there was a great deal of discussion about values. That's a good thing, except those values related to only two areas - sexual areas including gay marriage and abortion," he said. "The value of caring for the common good is a Judeo-Christian value, and an American value that goes back beyond our founding.

"The responsibility that we have to maintain Social Security - not private or personal security, but Social Security - are values we must hold on to.

"I'm afraid further privatization, whether it's by choice or enforcement, reduces our understanding of our responsibility for our common good."

Amen.

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As you all surely know by now, I did not become the new DNC Chair. But man oh man, I wish I could assume the reins for just one day. I would commission one commercial and then retire. I think the commercial I have in mind could single-handedly deliver a Pennsylvania Senate seat to the Dems.

In case you haven’t seen it, Man-on-Dog Santorum was captured on video entering a town hall meeting on Social Security while local college Republicans chanted “hey-hey-ho-ho-Social-Security-has-gotta-go.” If I were DNC Chair, that commercial would be airing tomorrow in Pennsylvania and would continue to air throughout the spring and summer. Just to make sure everyone understood the chanting, I would add large, scary-looking subtitles in all caps that translated the chants, followed by some excerpt of Santorum making the case for “reform.”

In case you don’t know, Pennsylvania has the second highest senior population in the nation. As DNC Chair, I would gleefully crunch the numbers and air the ad in the oldest, Reddest (as in Red State) parts of the state. I’d put him on defense on his own turf – and I wouldn’t shut up about it until November 2006. If I were Casey, I’d enter the race right now and explain that I felt compelled to do so in the name of Social Security. The press would eat that up – and it would instantly make the 2006 election a referendum on Social Security. "Casey, who claimed to enter the race to save Social Security, . . ." Casey should then run the ad every day. And every single day, he should say that Rick Santorum wants to eliminate Social Security. I don’t care if Santorum recanted tomorrow. The damage is done – it’s too late. He’s one of the ringleaders of Bush’s efforts. To be that out in front on this issue in an elderly state that is already hostile and full of socially liberal Specter Republicans seems politically moronic – principled I suppose, but moronic.

Is that fair? Yes and no. I mean, it is unfair to attribute the quotes from the crowd to Man-on-Dog, but politics ain’t for sissies. (Swift Boats anyone?). Besides, although a lot of people are wishy-washy on phase-out, Santorum has long been a fan of phase-out, as have the prime movers behind Bush’s “reform.” The reason that the chants would stick to Santorum is because they do reflect some larger truth, and that will resonate with people – just like the unending flip-flop accusations resonated because of Kerry’s sloppy handling of the war.

But the larger lesson here is that the Democrats have truly been handed an opportunity of a generation. If they can start framing the 2006 election as a referendum on Social Security – and start doing it soon – it could get ugly for the GOP, especially in the Red States.

One thing that people don’t understand about the Red states is that Social Security is not a wedge issue there for the Dems. Quite the opposite in fact. Despite their social views and the opinions on national security, Red Staters love them some Social Security. And it makes sense why they should – the Red States are often poor and rural. People there depend on Social Security to avoid poverty, which is something Grover and the Club for Rich People can’t empathize with. Republicans have won the votes of the Red State elderly and working class by stressing cultural issues and national security. To stray from this tried-and-true formula for success is a gamble – one with great possible rewards, but great risks too.

That’s why Bush’s post-SOTU tour of Red-States-with-Democratic-Senators was so fundamentally misguided. Bush can wedge these Senators on almost any issue, yet he chose the one issue that every Democrat in every region of the country can rally around. Hell, if you ask a (white) Democrat in Mississippi why they’re still a Democrat, they’ll probably cite Social Security. It’s the one issue where every Red State Democrat has infinite political cover to support the national party’s platform.

Bush’s choice to take on Social Security will strengthen Red State Democrats and put a lot of Red State Republicans in jeopardy. He’s handed these defensive Democrats an issue that they can seize and run with. Normally, running as a Red State Democrat requires a lot of defensiveness and triangulating and all that. And that’s to be expected. But savvy Red State Democrats can avoid a lot of this by making Social Security THE big issue. I’m not kidding – if I were a campaign consultant, I would start running ads next week, even if these Republicans in question fully opposed Bush’s plan. Tie this “reform” around the necks of all them – just like Ted Kennedy is tied around Democratic candidates’ necks.

As for Red State Republicans, an emphasis on Social Security would put them all on the defensive. It would also open up previously “safe” seats if Dems played their cards right. Take my old home district in southern Kentucky. It’s represented by Ed Whitfield, and the bordering district is represented by Ron Lewis. Both congressmen represent rural farming districts with a lot of poor people who depend on Social Security. According to Josh Marshall, both are pro-phase out. If I were in charge, I would find some socially conservative Democrat to run a single-issue campaign against them both. Social Security and nothing else – every day and at every town meeting. I would have the candidates call themselves “Social Security Democrats” – a new label that Red State Democrats could wear with pride, and could use to implicitly distance themselves from the national party in places where such connections are a political liability.

It would be great. Every question would be re-directed to Social Security. “Mrs. Candidate, what do you think about gay marriage.” Response - "I’m against it, but that’s not why we’re here. We’re to talk about Ed Whitfield’s support of a plan to remove one-third of Social Security’s funding, which would cause massive benefit cuts and force massive borrowing.” Removing one-third of funding. Massive benefit cuts. Massive borrowing. Removing one-third of funding. Massive benefit cuts. Massive borrowing. “Mrs. Candidate, do you support Ted Kennedy.” Response - “I don’t give a rat’s behind about Ted Kennedy, and I’ll oppose him when he stands against Kentucky. What I care about is Social Security. I’m a Social Security Democrat.” Removing one-third of funding. Massive benefit cuts. Massive borrowing. Say it with me everybody. Funding. Cuts. Borrowing. My. Opponent. Supports. Decreased funding. Massive cuts. Massive Borrowing. Over and over and over and over and over. Funding - Cuts - Borrowing.

If such a strategy could be successful, the Democrats would enjoy decades of benefits. For one, no one in their right mind would make a serious effort to phase out Social Security for another twenty years. Second, you give Democrats something absolutely and completely non-controversial to rally around in every single state. Democrats could deflect the traditional values questions by shifting the election to the issue of saving Social Security from its would-be destroyers. Third, success might even rob the GOP of a branch of government at a time when they were perfectly positioned to keep expanding their majority.

You can just feel it – they’re scared right now. And they should be. Of course, Lieberman will certainly do all he can to snatch defeat from the jaws of victory. And it would be nice if we had a credible primary threat to prevent him from doing so. But even Lieberman will have a hard time screwing this up.

This is the issue people. This is our chance. If Democrats can’t find away to punish them for this proposed reform, they don’t deserve to govern the free world.

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I must confess that I don’t know very much about Hunter S. Thompson. He was a bit before my time. My first introduction to him at all was through Johnny Depp’s unflattering (though hilarious) portrayal of him in Fear and Loathing. But Billmon quoted him a lot, and anyone that Billmon really likes is probably worth reading. When I heard he died, I immediately clicked over to the Whiskey Bar where I found that Billmon already had his tribute up. Despite my general ignorance of Thompson, I had read these words before (posted by Billmon), and they are as sad as they are beautiful:

There was a fantastic universal sense that whatever we were doing was right, that we were winning. . . . We had all the momentum; we were riding the crest of a high and beautiful wave . . .

So now, less than five years later, you can go up a steep hill in Las Vegas and look West, and with the right kind of eye you can almost see the high-water mark -- that place where the wave finally broke and rolled back.

To his credit, I thought Billmon himself waxed Thompon-esque after Reagan died when he explained the great symbolism of Reagan’s victory back in 1980 when he was still on campus:

I walked back to my dorm that night with an uneasy feeling that . . . Reagan's election marked some kind of turning point. Which it did, of course - as we discovered over the next few years.

In hindsight, it's easy to see that Reagan's election was the end of many things - the end of the '70s, and the mood of experimentation that went with it (the '70s were when the '60s went mainstream); the end of the "Vietnam syndrome," and the temporary popular revulsion against imperial military adventures; the end of the political alignment that emerged from the New Deal, the end of the New Left and its hopeless ambitions - the end, really, of the post-World War II era.

Although both of these passages are imbued with sadness about what has been lost, I can’t help but feel a little jealous. Even if they both eventually lost, at least both of them got to win – at least for a little while. My generation has yet to do so. The Republicans had taken power in Congress by the time I started paying attention to the news, and the era of Bush has been one long string of defeat after defeat. As I get older, I’m beginning to fear that my generation has been cursed to live an age of no progressive victories – of waves rolling back.

Perhaps I’m falling into the conceptual error (that I usually criticize) of romanticizing the 60s and pretending that short video clips with All Along the Watchtower playing in the background actually represent some brief flash of reality. But if I am, humor me for today. After all, sometimes it’s cooler to think of historical movements as existing in flashes, and colors, and waves. Thompson articulated this point perfectly (again, via Billmon):

History is hard to know, because of all the hired bullshit, but even without being sure of "history," it seems entirely reasonable to think that every now and then the energy of a whole generation comes to a head in a long fine flash.

It’s a bit New Agey I guess, but I like conceptualizing history in this way at times. And say what you will about the 60s, there was a sense (at least in the beginning) that this collective flash – or explosion – of progressive energy was changing the world for the better – freeing it from the inertia and sins of history. The day after the Civil Rights bill passed must have been a great day to be alive and politically active in America. It must have been awesome (in the literal sense of awe) to see the manifestation (or flash) of such a determined collective effort. It would have been nice to see Americans coming together to do good, and to join modernity.

The 90s were great, don’t get me wrong. But the collective energies of our generation were not directed toward anything that was good or noble (maybe the Internet bubble was close as some of us got). I had hoped that the 2004 election would be the beginning of a new collective effort by our generation to repudiate the last four years. But no such luck. We still haven’t done anything. And given the strength of the waves crashing against us, our highest goals right now must all involve defense – protecting past achievements and alliances from destruction.

I don’t really have any intention of converting anyone today, or empirically justifying what I’m about to say. I’m simply going to explain what a lot of American progressives are thinking. It's an insight in our subjective perceptions and nothing more - you can take it or leave it.

Anyway, a lot of times I like to think about people in terms of colors. Some are bright, some are dark. Some are warm, some are not. When I think of America right now, I see a lot of dark colors. I see a lot of appeals to our darker emotions of fear and anger. I see a lot of demonization of innocent people. I see a once respectable conservative movement being hijacked by cruel lunatics, and the lunatics are winning. And I don’t understand it. I don’t understand where all the hatred – for gays, for government programs, for liberals, for immigrants – comes from. Some days I want to fight it. But on some days, I just want to turn away in disgust. The inexplicable rage and persecution complex - it's all too much sometimes.

And then I read people like Hunter S. Thompson writing about the brief flash in history when they got to win, when they got the ride the wave. And then I wonder if I’ll ever get to do the same. I wonder if our generation will ever live to see its collective energy coming together for some higher progressive purpose – like the Orange Revolution in Ukraine. I have no doubt that progressivism will come back - all historical movements ebb and flow. But I’m increasingly afraid I may be an old man when it does – or worse.

Sorry to be so depressing – it’s all puppies tomorrow.

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[Warning: This post won't make much sense if you have never read Kurt Vonnegut's "Harrison Bergeron," and if you haven't heard about the Swift Boat producers' latest ad campaign - via Kevin Drum.]


THE YEAR WAS 2008, and everybody was finally moral. Nobody was liberal anymore – everybody hated liberals for their immorality. Nobody needed government programs anymore either, as that was what liberals favored. Everyone was now moral and self-reliant. All this morality was due to the unceasing vigilance of agents of Karl Rove, the new United States Morality General.

George and Hazel were a typical couple in that they were always moral, and always preferred moral policies. To ensure that they remained moral, the Morality General implanted a little television in their brains. They were required by law to wear it at all times. It was tuned to a government/Fox News transmitter. Every twenty seconds or so, the transmitter would send out some sharp video images to keep people like George and Hazel from losing sight of what is moral.

On this day, as on most days, George and Hazel were watching television. On the television screen were news pundits explaining how the old Social Security program had worked before it had been eliminated. George and Hazel thought it sounded like a nice program – protecting the elderly from risk and poverty in old age. Safety nets. It all sounded nice - especially given that retirement was nearer than they liked to admit. Suddenly a loud buzzer sounded in George and Hazel’s heads. Their thoughts fled in panic, like bandits from a burglar alarm as a video image flashed before them:



George and Hazel suddenly forgot what they were thinking about. “You know what I really hate, George? Faggots.” George nodded his head in agreement. There was nothing worse than faggots kissing. That’s what liberals wanted to force on America.

George and Hazel continued watching television. On the screen, they now saw images of the latest carnage in Iraq. The civil war was entering its second year. So many Americans had died. Hazel seemed to remember some promises made by government officials about WMDs and mushroom clouds, and that our troops would soon be gone. It made her angry when she thought that officials weren’t telling the truth. She was about to mention this to George, when the buzzer went off again - louder and more painful than before - followed by the flashing image:



Hazel stared around dumbly, unable to remember what she was thinking about. “You know what I really hate, Hazel? Liberals who hate our troops.” Hazel nodded, “and gays – you can’t forget about them either.” George nodded.

Someone new now appeared on the television screen. George and Hazel recognized that it was President Frist. He was about to explain his latest economic proposal. “My fellow Americans. The 5% tax rate on certain income brackets is simply too high. It is strangling our nation’s small businesses. To encourage growth, I am proposing reducing the tax rate upon these select brackets to 1%. Because Americans believe in fiscal discipline, we will pay for it by getting bloated big government and the LIBERALS FAGS WARD CHURCHILL QUEERS GLOBAL TEST HILLARY TRAITORS!!!!! out of the education arena once for and all. We will cut all loans, grants, and aid in order to grow the economy.”

George and Hazel frowned. Though they had nearly lost their train of thought, they both believed that federal education aid helped people, and shouldn’t be sacrificed to pay for tax cuts for the wealthy. George was about to explain his frustrations to Hazel, when the buzzer again sounded and the familiar images flooded their head.




“God, I do hate those liberal fags, Hazel. Thank God Mr. Frist won the election. What was I talking about?” Hazel shrugged. “I don’t know, but I sure hate fags too.”

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E.J. Dionne is on a mission – and it’s a mission near and dear to my heart. And that mission is to co-opt the language of faith and values to both criticize conservative policies and gather support for progressive ones. The problem, though, is that the people who need to hear such a message won’t listen to E.J. Dionne or any Washington Post columnist for that matter. The people from the Red States who most need to hear that message need to hear it from the friends and neighbors they trust and interact with. The problem is that those people have long since fled to the cities.

My wife and I both grew up in small towns in southern Kentucky. Because we did, we don’t share the prejudices of those who believe everyone in the Red States is a war-hungry gay-hater impervious to argument. But, it is true that many of these areas are hemorrhaging educated young people who leave and never come back anywhere close to their hometowns. Think about it – how many people who live in NY or DC or LA are actually from there? Many of these cities’ current residents are transplanted Red Staters – or from Red regions in Blue States. The problem for Red State progressivism is that these people would be the most natural and most effective advocates for progressivism back in their home states. They would also be ideal progressive candidates for local, and eventually state-wide, office. (See, e.g., Bill Clinton). The more that they leave, the fewer that are left to make the case. And that means that too many people see “liberalism” defended only by people like Alan Colmes on TV. What we need are missionaries for progressivism. So maybe that means it’s time for all us transplanted Red Staters to sacrifice good sushi and head back home – or at least to the closest place to home that we can get tolerable sushi.

Using the word “missionary” is particularly appropriate. The challenge progressives face is to convince people of the merits of progressivism in a manner consistent with their language, values, and customs. Missionaries often incorporate elements of Christianity (or whatever religion) into local customs and rituals. Progressives must do the same with the “religion” of progressivism.

One of the best examples from history of this sort of adaptation may come Jesus himself. I saw a documentary a while back that interviewed some biblical historians. In the Bible itself, there is a big gap in Jesus’s life from childhood to the beginning of his preaching (age 33 or so). Some scholars have speculated that he traveled east to India during this period. Their evidence is that Jesus’s teachings show remarkable similarities to Buddhism. Despite the abuses of religion by Dobson’s Taliban, if you actually read the Gospel, Jesus sounds like a 60s hippy preaching love, tolerance, and forgiveness for all. He hung out with the socially marginalized and railed against losing sight of love in the name of cold rules or commandments (for instance, his first two commandments were to love God and love others - not bash gays).

What these scholars believed happened was that Jesus went away and was profoundly moved by eastern religions. Growing up in Israel, he was of course already quite familiar with the laws and practices of Judaism. When he came back, Jesus essentially preached the message of Buddhism by incorporating the language, rituals, and practices of Judaism. He used a language and value system familiar to all. In short, he changed it from the inside.

Progressives could do the same. Obviously, people who grew up in churches and in Red States have a far better grasp on the language and modes of thought of people in these areas. (See, e.g., Bill Clinton). The challenge is to inject progressive ideas into these areas through the use of familiar language and values in the same way Jesus injected Buddhism into Judaism (which became Christianity).

One tactic I would use – and one I do use – is to first seek out common ground on the goals shared by all. We are all pro-family, we are all pro-values, we are all pro-patriotism, and we are all pro-individual betterment. The question is not one of goals (which Fox News would like people to believe) because we all share the same goals. The question is what policies are most consistent with those goals.

Take gay marriage. In arguing for this at home, I first affirm how important families are to society. I sincerely believe that families are the microstructure and glue that holds greater society together. Progressives should do everything to strengthen this institution, and to make sure families have more time to spend with each other. The reason I support gay marriage is not because it threatens families, but because it creates them. It strengthens them. It ensures that children will always have access to their parents, even if they split up. Property rights gives people incentives to remain in a stable structure. In short, I support gay marriage for distinctly “conservative” reasons.

The same is true for health care or increased labor rights. Lessening the demands of work, and freeing people from worry about sickness, gives people more time to spend with their children. Like Social Security, providing access to health care and education eliminates risk and fear, and that strengthens families. Such programs also further individual betterment, just like many other government programs.

The same is true for patriotism. We all support our nation, and we all support our troops. But we can disagree about whether a given policy furthers that goal. Opposing wars are not anti-America or anti-troop, they’re pro-America and pro-troop. I don’t want troops to die in unnecessary wars. I don’t want families to toss and turn at night wondering if tonight is the night that the insurgent destroys their lives forever. I don’t want America to be hated in the world. Patriotism simply doesn’t mean blind support for the administration in power. But these disagreements don’t mean that we don’t share the same goals, just as a fight with one’s parents doesn’t mean there aren’t deeper unshakable loyalties beneath these disagreements.

The last point I’ll make is that a reverse Exodus to the Red States would, if nothing else, increase diversity of views. As people like Cass Sunstein have written, exposing people to diverse views tends to mitigate extremism and soften ideological attachments. This is why traveling abroad and going to college so often results in a changed worldview that usually correlates with increased secularism and respect for internationalism. It’s not that people in college or abroad are more enlightened, it’s just that when you are exposed to more views, religions, and cultures, you are less likely to see your own as self-evidently superior. The same would be true for political views. The more people are exposed to different views (among people they otherwise trust and like), the more likely they will question and challenge their own views.

Obviously, there are sacrifices to be made in returning home. But there are also some benefits. People don't have to work as hard, and family members are around to help with babysitting or to give you a free weekend away from the kids. But on a more macro-level, a reverse Exodus would help inject progressive values into areas that I sincerely believe do far worse under conservative leadership.

So in the spirit of Horace Greeley, I say “Go Home, Young Man.”

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Via OxBlog, I see that the Harvard faculty is pondering a no-confidence vote for President Summers. Now I obviously have major reservations about any suggestion that genetics is responsible for the disparity between male and female science faculty. But in the words of the second worst Senator in the Senate, James Inhofe, I'm more outraged by the outrage. Universities - especially Harvard, considered to be the second best university in the country - are supposed to be open to all ideas, no matter how repugnant they may be. That's the whole point of a university. It's a place where people can explore controversial ideas, and challenge old ways of thinking.

But the free-speech-on-campus-suppressing reaction we're seeing provides further support for the idea that the political spectrum, to the extent it is linear at all, should be conceptualized as a quadrant. As I explained here, it's not just left and right. It's also divided into "order" and "freedom". The latter is more libertarian (or classically liberal), while the former wants to impose its own social and moral order upon others. Libertarians like Drezner and Sullivan would be the "Freedom Right," while the Cleric Dobson's American Taliban would be the "Order Right." Similarly, left-leaning libertarians would be the "Freedom Left," while the Harvard faculty appears to be strongly within the "Order Left" camp.

The faculty is acting in a disturbingly parallel way to its right-leaning brethren on the Order side of the spectrum. The Order Right wants to impose its own religious orthodoxies (from science education to birth control) on the rest of the nation. Similarly, the Harvard faculty has apparently declared that some sort of orthodox speech code exists, and that Summers committed heresy. The whole thing strikes me as being very similar to the way that religious fundamentalists try to punish those who stray from what they interpret as being acceptable.

Look, this is not to say we shouldn't refute Summers's statements. And it would be different if, say, an elected leader were using this to justify discrimination. But a university thrives on the free exchange of ideas - that is its lifeblood, and that is what has made the American university system so great.

And finally, let me add that this is just another reason why high school students who have the choice should drive down I-95 to New Haven and attend a better university.

[UPDATE: Some interesting points in the comments. First, the question is whether Summers' remarks were more inappropriate because he is an administrator with control over tenure decisions. That's a fair point assuming his comments were reflecting a bias, or setting the groundwork to justify discrimination. I guess I just viewed them differently. To me, Summers seemed to be saying that we have a problem. Then, he rattled off some potential causes of that problem.

The most troubling thing Summers said was the bit about "intrinsic aptitude." But still, sometimes stupid hypotheses are offered so that they can be refuted and cast aside. For instance, people who believe that race is a genetic determinant of IQ (Bell Curve people) are never going to change their mind if you scream at them - even if they deserve to be screamed at. Assuming they are capable of rational thought, the only way to convince them is to discuss the hypothesis, and then explain why it is so dreadfully wrong. All things that are so obviously wrong should be quite easy to refute. The same deal applies to women and science. There are people that seem to think there is some genetic difference. The only way to convince them once and for all is to refute it with reason - explain why genetics is far too complicated for such a simple conclusion; explain how genetics has been used in history to promote discrimination and worse; etc.

Again, all this is different if we're talking about some Nazi offering theories to imprison Jews, or a theory offered to justify discrimination. But this was not the context of the Summers speech at the university (in my opinion).

The bigger point is that the university should be a place where nothing is sacred. People should be allowed to be offensive with impunity, assuming it's a good faith free inquiry to find truth (which is the crux of question about Summers). If UT tried to fire Glenn Reynolds, I would rush to the bastard's side. If Ward Churchill wants to call the 9/11 victims little Eichmanns, then he's an idiot, but I would rush to defend him too from retaliation. Summers is an administrator, and that's the best objection to his speech. But still, I doubt that Summers was doing anything other than trying to be provocative in the name of truth (that he did so rather stupidly should be pointed out, but it doesn't justify taking his scalp). Jefferson had a great quote in 1820 at the founding of the University of Virginia which all faculty would do well to read:

This institution will be based upon the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.

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There are basically two things you need to know about the recent class action bill signed into law by President Bush. It moves most class action lawsuits from state court to federal court. And the reason it does so is because class actions are more likely to fail in federal court. That’s the new class action law in a nutshell.

Ignoring for now the merits of the new law (and there are good arguments both for and against it), I want to use it to make a more general point about "states' rights." To me, the legislation provides a perfect example of why states’ rights rhetoric – indeed, the very concept of states’ rights – is so empty and incoherent. After all, you would think that ardent states’ rights conservatives would have opposed this bill in the name of decentralization. The reason they did not is because battles over decentralization or states’ rights have nothing to do with lofty ideas or general principles. They are merely pretextual justifications for interest group politics. When you boil most federalism battles down to their essence, they are simply about fighting for the forum (i.e., state vs. federal) that is most likely to advance the preferences of the interest group in question.

I’m not singling out conservatives for hypocrisy. Federalism is an equal-opportunity illusion, and has been throughout American history. Interest groups all across the spectrum have invoked it or discarded it as necessary. In fact, there’s a simple formula you can use to determine whether a given interest group will favor states’ rights or not. First, take a controversial issue. Second, determine the forum that best helps the interest group in question. If the state forum (courts or legislature) is more favorable, the interest group will advocate states’ rights. If it isn’t, they won’t.

The most familiar examples from American history are slavery and segregation. Southerners supported slavery and didn’t trust the federal government to protect the peculiar institution. So, they preferred to leave the question to state governments. However, as passions started rising in the 1840s and 50s, they didn’t trust the northern states to respect their rights when it came to returning fugitive slaves. So on this issue, they favored federal legislation (the Fugitive Slave Act of 1850) that would force individuals in northern states to assist in returning fugitives. [Ironically, the bill helped bring about the end of slavery by radicalizing northern opinion (which is what the Federal “Marriage” Amendment would do today).]

Segregation and Jim Crow are other examples of opportunistic federalism arguments. Southerners preferred legal discrimination, and everyone else opposed it. So long as states got to make the decision, segregation would continue. If, however, the federal government stepped in and assumed jurisdiction, segregation would end. Predictably, southerners opted for states’ rights arguments and liberals opted for solutions at the federal level like the Civil Rights Bill (another of the many horrors of “big government” - and one opposed by St. Reagan, the Thirteenth Apostle).

But states’ rights has not always been the refuge of illiberal reactionaries. States’ rights arguments were an important tool used by the future Justice Brandeis and other progressives who wanted to limit the federal judiciary’s power over labor issues at the turn of the century. At that time, state courts (and governments) were relatively more populist, more pro-union, and more willing to regulate the corporate excesses of the Gilded Age (this was before Fox News). The federal judiciary, by contrast, was full of corporate lackeys and union-haters. Obviously, corporations did everything they could to get into the more business-friendly forum of federal court, and federal judges were happy to help them do it.

The main tool the federal courts used to protect corporations and to punish labor was something called “diversity jurisdiction.” To be grossly general, diversity jurisdiction allows federal courts to hear cases that would normally be heard by state courts if certain conditions apply (e.g., parties from different states and the amount in controversy is above a certain threshold). Brandeis and other progressives fought to reform diversity jurisdiction and used states’ rights arguments to gather support for their position. Their efforts finally paid off in a 1938 case called Erie, which is near-and-dear to the hearts of all first-year law students. Under Erie, federal courts now have to apply state law – rather than federal law – when they heard cases in diversity (i.e., cases heard because of diversity jurisdiction). In practice, shifting from state to federal federal to state law meant that corporations could no longer escape state regulation by fleeing to federal courts.

Moving forward in time, the opportunistic use of federalism is strikingly clear when you look at the battles between today’s progressives and conservatives, the latter of whom are the self-proclaimed heroes of states’ rights. To take but one example, just look at environmental regulation. Many conservatives hate it, many progressives like it. Because of collective action problems, states are unable (for structural reasons) to provide meaningful environmental oversight of the companies that dominate their local economies. That’s why the federal government is better suited to do it. And that’s also why conservatives – especially in the legal world – so adamantly support states’ rights in the realm of environmental legislation.

On social issues, the religious right-wing is especially schizophrenic on federalism. On abortion and school prayer, religious conservatives know that their odds are better if these decisions could be made on a state – rather than a federal – level. However, on the issues of gay marriage, sex education, and medicinal marijuana, they don’t trust the states and instead want to impose a national Taliban-like edict that binds the entire nation.

I suppose you could say the same thing about progressives in reverse. And you would have a good point if progressives pretended that they always come down on one side of the debate as conservatives often do. But progressives prefer to evaluate it empirically, or at least I do. As I explained in more detail when I unveiled my progressive theory of states’ rights, I believe in states’ rights for social issues (except civil rights protected by the Constitution or statute), and tend to be skeptical of states’ rights in the areas of economics and regulation. To blindly declare that states’ rights is always the answer is a failure to engage the world empirically. But it’s even worse to pretend to do so at the same time you oppose states’ rights every time it impedes on your political preferences. That’s not federalism – that’s opportunism.

__________

I must admit that I haven't followed the Eason Jordan story that closely, but was it really such an outrageous thing to have said? I mean, Control Room makes a pretty strong case that the administration deliberately killed an Al Jazeera reporter and deliberately targeted journalists during the invasion of Baghdad. Now again, I don't know what news has come to light since then (and please pass it along if you know), but here are the data points put forward by Control Room:

(1) Al Jazeera informed the U.S. military of the location of its Baghdad office so it would not be targeted.

(2) On April 8, that office was bombed.

(3) That same day, the Arab media outlet Abu Dhabi was also bombed.

(4) That same day, the Palestine Hotel - which housed many international journalists - was also bombed.

The next day, the Saddam statue came down. If you've seen Control Room, you're familiar with their accusation that the whole thing was staged and that the young men who were on the streets didn't speak with Iraqi accents. Thus, the motive would be that they didn't want foreign journalists around messing up their staged statue toppling.

Again, I'm not an expert on this stuff, so if there is new information, please let me know. But when you add up all the data points, it kinda smells funny. And if so, then the noise machine outcry is less about justified outrage and more about ensuring that such things never get exposed or investigated.

__________

I expect to return to normal posting after today (I hope to start this weekend). I do want to thank everyone for their patience. On a quick aside, I learned from an email that an organization called the Point Foundation had offered Alan Keyes daughter Maya a scholarship after he kicked her out of the house and stopped paying her college tuition for being a lesbian. Apparently, this group puts a special emphasis on providing college support for those who have been disowned and cut off from their families for being gay. So if you want to help them out, you can find the site here.

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For all his faults, Rumsfeld has his brief flashes of brilliance. After reading Milbank’s description of how he basically told the legislative branch of the United States to go fuck itself, I was in awe. It was a rare moment of high comedy.

Rumsfeld yesterday reminded me of the great jesters – or fools – in Shakespeare’s plays. These characters, which are some of his best, are not merely joke tellers. Their role is far more important. The fools show us reality, and it's often unpleasant. They are simultaneously within the play and detached from it. They satirize the hapless characters around them, and force them to give up their illusions and face cold reality. In this respect, Romeo & Juliet’s Mercutio is very fool-like. He mocks the young lovers lost in their idealized teenage infatuation much like a fool would:

ROMEO

Peace, peace, Mercutio, peace!
Thou talk'st of nothing.

MERCUTIO

True, I talk of dreams,
Which are the children of an idle brain,
Begot of nothing but vain fantasy (I.iv)

Rumsfeld yesterday became the fool of the demented comedy that takes place each day on the Hill. To be blunt, Congress – despite a little thing called Article I – has become Bush’s servant boy. Bush says jump, the GOP caucus says “How high?” Bush says give me half a trillion for defense, and Congress says, “Where do I sign?” “Congressional oversight” – especially of our Iraq policy – is an illusion. It’s all one big Kabuki dance. Bush gets whatever he wants from a bunch of groveling cowards, and in return, Bush and team go through the motions of appearing at hearings on Capitol Hill to at least pretend that Congress has some sort of constitutional authority.

Given that Congress can’t even find the political courage to hold extensive hearings on torture, Bush and team know they have nothing to fear from the current legislative branch. Normally, though, administration officials at least play their part in this silly little comedy. But yesterday Rumsfeld stepped out of the play (like a "dull actor" who had forgot his lines). His humiliation of a Congressional committee was genius in that showed the reality of the balance of power all-too-clearly. Here's Milbank:

At 12:54, he announced that at 1 p.m. he would be taking a break and then going to another hearing in the Senate. "We're going to have to get out and get lunch and get over there," he said. When the questioning continued for four more minutes, Rumsfeld picked up his briefcase and began to pack up his papers.

The chairman, Rep. Duncan Hunter (R-Calif.), apologized to his colleagues for a rather "unusual" situation. With the Bush administration asking Congress this month to write checks for half a trillion dollars for the Pentagon, you might think the secretary of defense would set an accommodating posture on Capitol Hill.

. . .

Asked about the number of insurgents in Iraq, Rumsfeld replied: "I am not going to give you a number."

Did he care to voice an opinion on efforts by U.S. pilots to seek damages from their imprisonment in Iraq? "I don't."

Could he comment on what basing agreements he might seek in Iraq? "I can't."

How about the widely publicized cuts to programs for veterans? "I'm not familiar with the cuts you're referring to."

Pure genius.

[UPDATE: The commenters have explained that Milbank's account is a bit skewed. Praktike has more. Normally, I try to read the context of the quotes, but I trust Milbank so I didn't. But I should have. I guess the better view is that Rumsfeld was testy, but not quite so arrogant as Milbank made him out to be.]

In Part I of this two part series, I made the claim that it would be better for the American public to debate the merits of policies such as extraordinary-rendition, as well as what rules of conduct should govern our own extra-jurisdictional detention centers. In the interest of this proposition, I will use this Part to forward that discussion, hopefully at least considering both sides of the argument.

"Everything Changed After 9/11"

That phrase has been uttered many times over the past three-plus years, and almost always it is evoked to justify the departure from a long established principle of American worldview. Similarly, the epiphany of 9/11 has led members of the intelligence community to take a new view of civil liberties - at least in certain contexts. Mayer noted the change in the Bush administration's thinking.

This shift in perspective, labeled the New Paradigm in a memo written by Alberto Gonzales, then the White House counsel, "places a high premium on...the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians," giving less weight to the rights of suspects. It also questions many international laws of war. Five days after Al Qaeda's attacks on the World Trade Center and the Pentagon, Vice-President Dick Cheney, reflecting the new outlook, argued, on "Meet the Press," that the government needed to "work through, sort of, the dark side." Cheney went on, "A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful. That's the world these folks operate in. And so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective."

In fairness to Cheney, that is not an altogether outlandish statement, despite his questionable reference to the "dark side" (wonder if he knows who Darth Vader is?). As Michael Scheuer argues, some investigations, though they yield results in terms of identifying culprits, are not conducive to a resolution by trial in the US court system. Sources and methods need to be kept secret, foreign governments might be reluctant to provide crucial evidence and testimony, and witnesses might be difficult to produce for either side. Despite these assertions, I am left thinking that if US courts can convict someone as innocuous as Lynne Stewart,despite the obvious Constitutional questions in her prosecution, how hard would it be to produce a guilty verdict for someone as unsympathetic as Khalid Sheikh Mohammed?

But let's assume, for the sake of argument, that there are some cases that are simply too problematic to proceed to trial, yet there is certainty of the suspect's guilt. What then should become of them? If we are to maintain extra-jurisdictional jails for these extreme cases, then we should at the very least try to reserve their use for such examples. In other words, if it is vital for national security to have such a loophole, then the government must be doubly vigilant to avoid situations like Mr. Arar's, and the many other innocents that Mayer and other groups point to. By playing fast and loose with such unrestrained power, the government weakens its case for being trusted with such authority in the first place.

Cry Uncle

So, at least for now, let's assume that in some extreme cases, there might be a need for detention that does not occur according to Constitutional due process per se. Where does that leave us on the use of torture? The cheapest gimmick of torture advocates is to cart out the ticking time bomb scenario, and what to do in that most implausible of settings. Belle Waring at Crooked Timber wrote a rather witty take down of this fantastical Hollywood inspired scenario that is worth reading. Matthew Yglesias took it one step further, allowing for the possibile occurence of such an event but explaining why it should not raise too much concern regardless.

Knowing what we know about human behavior and the sort of people who make careers in the law enforcement and intelligence communities, it's a bit absurd to think that an interrogator would ever let, say, a nuclear bomb go off and destroy Chicago when he could have stopped it with a little torture, just because the Geneva Conventions said he shouldn't torture anyone. The world just doesn't work like that.

The real question is, what do you do after the disaster has been averted? Well, in a world where torture is illegal, your interrogator's probably going to have to be arrested. But he's also going to be a national hero, he'll plead his defense of necessity, and no jury in the country is going to unanimously convict him. And even if he somehow did wind up getting convicted, he could be pardoned. We have, in other words, several methods for making ad hoc, ex post facto exceptions to the rules in our common law system. And it's a good thing. It really would be silly to punish someone who'd just gone out and saved three million lives.

So in my opinion no real harm is done by maintaining a blanket legal rule that torture is always prohibited. No catastrophic nuclear attacks will go through thanks to this rule, and no great national heros will go to jail. Conversely, a clear rule does much good. It means that interrogators will only break the rules in the case of some genuine emergency.

The intelligent response to this, though, is what about the ability to prevent carnage on a smaller scale, say of a conventional attack that could be thwarted through obtaining evidence from captured terrorists? Maybe the presidential pardon and sympathetic juries would still apply, but a prohibition on torture could have a chilling effect when the stakes are lower than a nuclear attack - though I still tend to believe that an interrogator could thwart a lesser attack through torturous techniques with impunity - especially after 9/11. What jury would convict an interrogator who only averted 10 deaths or 100? What president would throw him or her to the wolves?

This brings us to the issue of whether or not torture is even effective in the first place. From Mayer's article:

Most authorities on interrogation, in and out of government, agree that torture and lesser forms of physical coercion succeed in producing confessions. The problem is that these confessions aren't necessarily true. Three of the Guantánamo detainees released by the U.S. to Great Britain last year, for example, had confessed that they had appeared in a blurry video, obtained by American investigators, that documented a group of acolytes meeting with bin Laden in Afghanistan. As reported in the London Observer, British intelligence officials arrived at Guantánamo with evidence that the accused men had been living in England at the time the video was made. The detainees told British authorities that they had been coerced into making false confessions.

And back to our new friend and partner Uzbekistan, and the quality of the confessions they produce:

Craig Murray, the former British Ambassador to Uzbekistan, told me that "the U.S. accepts quite a lot of intelligence from the Uzbeks" that has been extracted from suspects who have been tortured. This information was, he said, "largely rubbish." He said he knew of "at least three" instances where the U.S. had rendered suspected militants from Afghanistan to Uzbekistan. Although Murray does not know the fate of the three men, he said, "They almost certainly would have been tortured." In Uzbekistan, he said, "partial boiling of a hand or an arm is quite common." He also knew of two cases in which prisoners had been boiled to death. [emphasis added]

Mayer also notes that, although there are obviously voices within the intelligence community that believe torture can yield results (otherwise no one would be advocating for its use), there are also many experienced players who are adamant in their opposition.

Perhaps surprisingly, the fiercest internal resistance to this thinking has come from people who have been directly involved in interrogation, including veteran F.B.I. and C.I.A. agents. Their concerns are as much practical as ideological. Years of experience in interrogation have led them to doubt the effectiveness of physical coercion as a means of extracting reliable information.

[Ex-FBI agent on counter-terrorism] Coleman was angry that lawyers in Washington were redefining the parameters of counter-terrorism interrogations. "Have any of these guys ever tried to talk to someone who's been deprived of his clothes?" he asked. "He's going to be ashamed, and humiliated, and cold. He'll tell you anything you want to hear to get his clothes back. There's no value in it." Coleman said that he had learned to treat even the most despicable suspects as if there were "a personal relationship, even if you can't stand them." He said that many of the suspects he had interrogated expected to be tortured, and were stunned to learn that they had rights under the American system. Due process made detainees more compliant, not less, Coleman said. He had also found that a defendant's right to legal counsel was beneficial not only to suspects but also to law-enforcement officers. Defense lawyers frequently persuaded detainees to cooperate with prosecutors, in exchange for plea agreements. "The lawyers show these guys there's a way out," Coleman said. "It's human nature. People don't cooperate with you unless they have some reason to." He added, "Brutalization doesn't work. We know that. Besides, you lose your soul."

The problem with twisting someone's arm until they cry uncle, is that they will do it regardless of whether or not they mean it.

Fruit Of The Poisonous Forest

The lawyers lurking about this site might be familiar with the evidentiary rules that prohibit using information and evidence obtained from unconstitutional searches in court, even if the information is probative (though there are certain exceptions). Evidence obtained in such a manner is deemed "fruit of the poisonous tree," and thus barred from admission in court (also see the exclusionary rule). As you can imagine, confessions and other statements made under the duress of torture and/or abuse, especially in unconstitutional detention centers, are likely inadmissible, as is any other evidence gained as a result of such confessions. This has raised obstacles to pursuing legal remedies in many of these cases.

Similar problems complicate the case of Khalid Sheikh Mohammed, who was captured in Pakistan in March, 2003. Mohammed has reportedly been "water-boarded" during interrogations. If so, Radsan said, "it would be almost impossible to take him into a criminal trial. Any evidence derived from his interrogation could be seen as fruit from the poisonous tree. I think the government is considering some sort of military tribunal somewhere down the line. But, even there, there are still constitutional requirements that you can't bring in involuntary confessions."

There are other procedural issues as well. Namely, how do you produce witnesses that are being kept in unofficial detention centers operated outside the purview of US laws? You just can't wheel them in and out of court while you are pretending that they remain outside the reach of US law.

The trial of Zacarias Moussaoui, in Alexandria, Virginia - the only U.S. criminal trial of a suspect linked to the September 11th attacks - is stalled. It's been more than three years since Attorney General John Ashcroft called Moussaoui's indictment "a chronicle of evil." The case has been held up by Moussaoui's demand - and the Bush Administration's refusal - to let him call as witnesses Al Qaeda members held in government custody, including Ramzi bin al-Shibh and Khalid Sheikh Mohammed. (Bin al-Shibh is thought to have been tortured.) Government attorneys have argued that producing the witnesses would disrupt the interrogation process.

Similarly, German officials fear that they may be unable to convict any members of the Hamburg cell that is believed to have helped plan the September 11th attacks, on charges connected to the plot, in part because the U.S. government refuses to produce bin al-Shibh and Mohammed as witnesses. Last year, one of the Hamburg defendants, Mounir Motassadeq, became the first person to be convicted in the planning of the attacks, but his guilty verdict was overturned by an appeals court, which found the evidence against him too weak.

In addition to these evidentiary barriers, we have been inadvertently creating a class of prisoners that exists in legal purgatory, beyond the bounds of what we are familiar processing, or perhaps have the capability to resolve in an acceptable manner.

...the Bush Administration, having taken so many prisoners outside the realm of the law, may not be able to bring them back in. By holding detainees indefinitely, without counsel, without charges of wrongdoing, and under circumstances that could, in legal parlance, "shock the conscience" of a court, the Administration has jeopardized its chances of convicting hundreds of suspected terrorists, or even of using them as witnesses in almost any court in the world....

Since September 11th, as the number of renditions has grown, and hundreds of terrorist suspects have been deposited indefinitely in places like Guantánamo Bay, the shortcomings of this approach have become manifest. "Are we going to hold these people forever?" Scheuer asked. "The policymakers hadn't thought what to do with them, and what would happen when it was found out that we were turning them over to governments that the human-rights world reviled." Once a detainee's rights have been violated, he says, "you absolutely can't" reinstate him into the court system. "You can't kill him, either," he added. "All we've done is create a nightmare."

Transactional Costs

Torture, rendition, and extra-jurisdictional detentions thus have many hidden costs. They complicate legal proceedings in terms of producing evidence and witnesses for those defendants within the mainstream legal system, make prosecution of others outside the normal track near impossible, create a class of prisoners that exist in a state of limbo with no resolution of their status on the horizon, and diminish our moral authority in the eyes of a world. Oh yeah, and on top of all that, torture isn't even particularly effective as a source of information in the first place.

But because of these frictions, measures such as these (torture, rendition, etc.) must have a utility greater than other methods - at least enough to overcome the problems created. In the case of torture, this is not entirely clear.

Scientific research on the efficacy of torture and rough interrogation is limited, because of the moral and legal impediments to experimentation. Tom Parker, a former officer for M.I.5, the British intelligence agency, who teaches at Yale, argued that, whether or not forceful interrogations yield accurate information from terrorist suspects, a larger problem is that many detainees "have nothing to tell." For many years, he said, British authorities subjected members of the Irish Republican Army to forceful interrogations, but, in the end, the government concluded that "detainees aren't valuable." A more effective strategy, Parker said, was "being creative" about human intelligence gathering, such as infiltration and eavesdropping. "The U.S. is doing what the British did in the nineteen-seventies, detaining people and violating their civil liberties," he said. "It did nothing but exacerbate the situation. Most of those interned went back to terrorism. You'll end up radicalizing the entire population."...

For ten years, Coleman worked closely with the C.I.A. on counter-terrorism cases, including the Embassy attacks in Kenya and Tanzania. His methodical style of detective work, in which interrogations were aimed at forging relationships with detainees, became unfashionable after September 11th, in part because the government was intent on extracting information as quickly as possible, in order to prevent future attacks. Yet the more patient approach used by Coleman and other agents had yielded major successes. In the Embassy-bombings case, they helped convict four Al Qaeda operatives on three hundred and two criminal counts; all four men pleaded guilty to serious terrorism charges. The confessions the F.B.I. agents elicited, and the trial itself, which ended in May, 2001, created an invaluable public record about Al Qaeda, including details about its funding mechanisms, its internal structure, and its intention to obtain weapons of mass destruction. (The political leadership in Washington, unfortunately, did not pay sufficient attention.)

Because there are viable alternatives in most circumstances, if we must detain some particularly dangerous terrorists outside of the legal system, we should limit such detentions to only those special cases, and attempt to process as many as possible through regular legal means. This will actually help other investigations and prosecutions, whereas currently, extra-judicial detentions are causing a chain reaction in the opposite direction. In addition, as Parker points out, the objects of such treatment can often end up more pernicious after the fact, radicalized by their treatment. As Praktike pointed out in the comments section on TIA:

Before he was tortured in Egyptian prison, Ayman Zawahiri was just a run-of-the-mill radical. Look at that bastard now. Ditto for Zarqawi, who was tortured in Jordanian prison.

Torture turns minor bad guys into crazy, determined, super-empowered [dangers].

Therefore, we should not condone the use of torture, or the practice of extraordinary renditions to third countries that torture on our behalf. Especially in such a wide scope as the Bush administration has been operating under so that the likes of Mr. Arar suffer so unjustly. Better, at least, to keep the exceptional cases, where the benefits outweigh the costs as laid out above, under our control not that of a third country (assuming the Supreme Court allows for such a homegrown program). Even then, I would like clearer guidance from Gonzales and the Bush administration on how even these detainees will be treated.

Remember, the use of these morally dubious tactics also impacts the perception that the world community will have of us as a nation. In the case of Iraq and the broader Muslim world, this perception is of supreme importance at this juncture. We cannot win over hearts and minds, and convince people to make radical changes in their political, religious, and societal structures if we are not held in high regard - or at least not openly reviled. The use of torture, rendition, and "ghost" detentions undermines our status and moral authority, especially when too many of the victims are innocent civilians released back into the population to tell their tales of horror. Therefore, these controversial methods have transactional costs in terms of democracy promotion as well which must be included as a variable in any cost-benefit analysis of the utility of the use of such means. This of course says nothing about our own moral and ethical imperatives, and what affect it would have on American ideals if we so willingly cast off prohibitions on torture and detention without due process as "quaintisms" because, you know, "everything changed after 9/11."

Today I want to return to the story that keeps on giving: torture. In particular, I want to focus on an aspect of the story that has received little attention by comparison, yet it is in many ways as disturbing, if not more so, than other more popularly reported facets.

It Depends On What Your Definition of "Do" Is

The opening line in Jane Mayer's article in the most recent issue of The New Yorker proceeds as follows:

On January 27th, President Bush, in an interview with the Times, assured the world that "torture is never acceptable, nor do we hand over people to countries that do torture."

The article goes on to tell the history of a practice known in certain circles as "extraordinary-rendition," a procedure, the details of which, directly contradict the president's dubious claim about extradition to states that practice torture.

The extraordinary-rendition program bears little relation to the system of due process afforded suspects in crimes in America. Terrorism suspects in Europe, Africa, Asia, and the Middle East have often been abducted by hooded or masked American agents, then forced onto a Gulfstream V jet...Upon arriving in foreign countries, rendered suspects often vanish. Detainees are not provided with lawyers, and many families are not informed of their whereabouts.

The most common destinations for rendered suspects are Egypt, Morocco, Syria, [Uzbekistan], and Jordan, all of which have been cited for human-rights violations by the State Department, and are known to torture suspects.

The procedure is specifically set up to circumvent the rigors of American due process, as well as our prohibitions on cruel and inhumane treatment, by turning these suspects over to nations that use torture as a standard operating procedure for interrogating prisoners. By removing a suspect from U.S. jurisdiction, American intelligence operatives can rely on their foreign counterparts to extract information using otherwise illegal means, and can keep a detainee away from the courts, attorneys, and other avenues that might provide for their release. This is what Mayer calls "Outsourcing Torture."

The Genesis

The extraordinary rendition program was the brainchild of the CIA during the mid-1990's, under the Clinton, not Bush, administration. In this regard, it is a bi-partisan dirty little secret.

Not long ago, [Michael] Scheuer [aka "Anonymous"]...spoke openly for the first time about how he and several other top C.I.A. officials set up the program, in the mid-nineties. "It was begun in desperation," he told me. At the time, he was the head of the C.I.A.'s Islamic-militant unit, whose job was to "detect, disrupt, and dismantle" terrorist operations...He recalled, "We went to the White House" - which was then occupied by the Clinton Administration - "and they said, 'Do it.'" He added that Richard Clarke, who was in charge of counter-terrorism for the National Security Council, offered no advice. "He told me, 'Figure it out by yourselves,'" Scheuer said.

The rationale was a familiar one: due process concerns, and the desire to employ aggressive techniques to acquire information that are prohibited domestically.

From the start, though, the C.I.A. was wary of granting terrorism suspects the due process afforded by American law. The agency did not want to divulge secrets about its intelligence sources and methods, and American courts demand transparency. Even establishing the chain of custody of key evidence - such as a laptop computer -could easily pose a significant problem: foreign governments might refuse to testify in U.S. courts about how they had obtained the evidence, for fear of having their secret cooperation exposed. (Foreign governments often worried about retaliation from their own Muslim populations.)

Those goals directly influenced the selection of destinations.

The obvious choice, Scheuer said, was Egypt. The largest recipient of U.S. foreign aid after Israel, Egypt was a key strategic ally, and its secret police force, the Mukhabarat, had a reputation for brutality. Egypt had been frequently cited by the State Department for torture of prisoners. According to a 2002 report, detainees were "stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, whips, metal rods, or other objects; subjected to electrical shocks; and doused with cold water [and] sexually assaulted"...

The U.S. began rendering terror suspects to other countries, but the most common destination remained Egypt. The partnership between the American and the Egyptian intelligence services was extraordinarily close: the Americans could give the Egyptian interrogators questions they wanted put to the detainees in the morning, Scheuer said, and get answers by the evening.

Slip Sliding Away

Perhaps slippery slope arguments are over-used and applied in inappropriate contexts as a general rule in political discourse. They can serve as a scare tactic of sorts, intended to cut off the debate on a number of reasonable measures because of what might occur if policies are extended beyond their original intent. But in the realm of extraordinary-renditions, there is evidence that what began as a limited, highly selective program in its earliest incarnation, has morphed into something of an epidemic.

Rendition is just one element of the Administration's New Paradigm. The C.I.A. itself is holding dozens of "high value" terrorist suspects outside of the territorial jurisdiction of the U.S., in addition to the estimated five hundred and fifty detainees in Guantanamo Bay, Cuba. The Administration confirmed the identities of at least ten of these suspects to the 9/11 Commission - including Khalid Sheikh Mohammed, a top Al Qaeda operative, and Ramzi bin al-Shibh, a chief planner of the September 11th attacks - but refused to allow commission members to interview the men, and would not say where they were being held. Reports have suggested that C.I.A. prisons are being operated in Thailand, Qatar, and Afghanistan, among other countries. At the request of the C.I.A., Secretary of Defense Donald Rumsfeld personally ordered that a prisoner in Iraq be hidden from Red Cross officials for several months, and Army General Paul Kern told Congress that the C.I.A. may have hidden up to a hundred detainees.

The changing nature of overseas detentions provoked a response from Dan Coleman, an ex-FBI agent who worked for ten years with the CIA on counter-terrorism cases, including the embassy bombings in the late 1990's.

Bad as the policy of rendition was before September 11th, Coleman said, "afterward, it really went out of control." He explained, "Now, instead of just sending people to third countries, we're holding them ourselves. We're taking people, and keeping them in our own custody in third countries. That's an enormous problem." Egypt, he pointed out, at least had an established legal system, however harsh. "There was a process there," Coleman said. "But what's our process? We have no method over there other than our laws - and we've decided to ignore them. What are we now, the Huns? If you don't talk to us, we'll kill you?"

In addition to the shift from the sole auspices of third party countries to our own facilities operated abroad, the criteria for which suspects could be rendered in such a manner has become broader - perhaps dangerously so.

Rendition was originally carried out on a limited basis, but after September 11th, when President Bush declared a global war on terrorism, the program expanded beyond recognition - becoming, according to a former C.I.A. official, "an abomination." What began as a program aimed at a small, discrete set of suspects - people against whom there were outstanding foreign arrest warrants - came to include a wide and ill-defined population that the Administration terms "illegal enemy combatants." Many of them have never been publicly charged with any crime. Scott Horton, an expert on international law who helped prepare a report on renditions issued by N.Y.U. Law School and the New York City Bar Association, estimates that a hundred and fifty people have been rendered since 2001.

In some ways, the evolution of the extraordinary rendition program mirrors the same "migration" of techniques from Guantanamo to Abu Ghraib. What began, conceptually, as a special set of procedures for handling al-Qaeda suspects, drifted into a prison which held mostly civilians in a combat zone (the vast majority of which turned out to be innocent of any crime of insurrection, let alone international terrorism targeting the United States).

Scheuer claimed that "there was a legal process" undergirding these early renditions. Every suspect who was apprehended, he said, had been convicted in absentia. Before a suspect was captured, a dossier was prepared containing the equivalent of a rap sheet. The C.I.A.'s legal counsel signed off on every proposed operation. Scheuer said that this system prevented innocent people from being subjected to rendition. "Langley would never let us proceed unless there was substance," he said. Moreover, Scheuer emphasized, renditions were pursued out of expedience - "not out of thinking it was the best policy."

The Net Widens

Whereas their was tight control over renditions pre-9/11, as well as certain criteria such as an arrest warrant and a CIA dossier, post-9/11 the gloves came off. The standards began to loosen which is quite disturbing considering the stakes. Agents of our government are abducting foreign nationals and whisking them off to foreign prisons for interrogations during which they will be brutalized. Many may "disappear" altogether.

Which brings us to the case of Maher Arar, a 34 year old Canadian citizen whose family had emigrated to Canada from Syria when he was a teenager. Arar's story began in late 2003 when he was returning from a vacation in Tunisia with his family. While changing planes in New York, he was apprehended by American officials, and although he was never charged with a crime, he "was placed in handcuffs and leg irons by plainclothes officials and transferred to an executive jet. The plane flew to Washington, continued to Portland, Maine, stopped in Rome, Italy, then landed in Amman, Jordan" and later he was driven to Syria.

What was his crime? "Arar was detained because his name had been placed on the United States Watch List of terrorist suspects." And what had Arar done to land on the Watch List? The brother of one of his co-workers was a suspected terrorist. Far from the previous standard of a foreign arrest warrant and a CIA dossier, this case appears to set a dangerous precedent for what type of tenuous connection can land a foreign citizen in a torturers den via US escort. I repeat: his co-worker's brother was a suspect.

Ten hours after landing in Jordan, Arar said, he was driven to Syria, where interrogators, after a day of threats, "just began beating on me." They whipped his hands repeatedly with two-inch-thick electrical cables, and kept him in a windowless underground cell that he likened to a grave. "Not even animals could withstand it," he said. Although he initially tried to assert his innocence, he eventually confessed to anything his tormentors wanted him to say. "You just give up," he said. "You become like an animal"....When Arar described his experience in a phone interview recently, he invoked an Arabic expression. The pain was so unbearable, he said, that "you forget the milk that you have been fed from the breast of your mother."

The confession was worthless, as many extracted in such a manner are. After a year of abuse and torture, Arar was released without charges.

Imad Moustapha, the Syrian Ambassador in Washington, announced that his country had found no links between Arar and terrorism. Arar, it turned out, had been sent to Syria on orders from the U.S. government, under a secretive program known as "extraordinary rendition." This program had been devised as a means of extraditing terrorism suspects from one foreign state to another for interrogation and prosecution. Critics contend that the unstated purpose of such renditions is to subject the suspects to aggressive methods of persuasion that are illegal in America -including torture.

Let The Sunshine In

Whatever the value of this program in terms of intelligence gathering (which I will examine in further detail in Part II), there are very serious moral issues with exporting suspects to be tortured and abused in foreign nations, not to mention being ill-treated by American officials in our newly minted extra-jurisdictional facilities overseas. I think it is morally and ethically dubious to act as if our hands are clean of these practices because all we did was abduct these suspects and deliver them to notoriously brutal foreign prisons.

Yet amidst the commotion during Alberto Gonzales' confirmation hearings, this little fact slipped by almost unmentioned in the MSM (or the SCLCMMSMM according to Fafblog! - always ready with a new acronym):

Gonzales argued through written responses to Senate inquiries that both the U.N. Convention Against Torture's ban on "cruel, inhuman, and degrading treatment" as well as President Bush's own prohibition on inhumane treatment of detainees does not apply to American interrogations of foreigners overseas - or the CIA in general.

It seems that Gonzales, and others, are intent on creating a zone of exception to legal obstacles regarding what some might consider torture. Since it's torture we're talking about, and a circumvention of even a semblance of due process (not even relying on Egyptian courts any more), I think that the American people should be privy to these decisions. At the very least there should be a public debate because sunlight is the best disinfectant. Even if we decide that some extreme measures need to be taken, we should be conscious of what we do. But we were warned by the ever thoughtful Glenn Reynolds not to make too much of the torture issue during Gonzales' hearings because it could trigger a pro-torture backlash - despite the fact that Gonzales is issuing legal opinions on these very subjects. Glenn, are you going to be so kind as to let the American people know when it would be appropriate to rejoin this discussion? I'm sure Mr. Arar would like to know.

And while we're deciding whether we want to be outsourcing our interrogation duties to dubious allies, let's take a look at some of our bedfellows in these endeavors. First and foremost there is Egypt, whose brutalities are well documented, and partially listed above. Then Syria. Although tensions with Syria are at an all time high over the recent assassination of former Lebanese Prime Minister Rafik Hariri, and some circles are advocating an invasion or other punitive measure, somehow Syria is an acceptable destination for those we deem unlawful combatants. This must look to the world like the worst kind of double speak: Syria is brutal and repressive, but we think they are humane enough to deposit uncharged suspects in Damascus? Or that we can just hold our hands out and shrug our shoulder when people like Mr. Arar return with horror stories from captivity. Who knew?

And then there's the particularly brutish "ally" in the war on terror in Uzbekistan. Steve Clemons has a disturbing profile of the violent tendencies of the Uzbek prime minister Islam Karimov - complete with a description of his penchant for boiling his victims in giant cauldrons (Clemons provides links to photographic evidence that is extremely graphic - click through at your own risk). But hey, we didn't specifically ask that any suspects get boiled, so don't blame us.

This hypocrisy was not lost on Bob Herbert, who duly noted the inverted sense of morality pervading our political discourse this election year.

Our henchmen in places like Syria, Egypt, Morocco, Uzbekistan and Jordan are torturing terror suspects at the behest of a nation - the United States - that just went through a national election in which the issue of moral values was supposed to have been decisive. How in the world did we become a country in which gays' getting married is considered an abomination, but torture is O.K.?

Good question.

__________

Sorry to intrude on Eric's day - I just wanted to point out that I have a TAS post up here. Back to Eric and our regularly scheduled programming.

Kenneth Maxwell, former book reviewer for the Western Hemisphere at Foreign Affairs magazine and senior fellow and director of Latin America Studies at the Council on Foreign Relations, learned first hand about Henry Kissinger's "dark side," and why his then editor James F. Hoge, Jr. warned him in such a manner. The imbroglio involving Maxwell, Kissinger, Hoge, and Kissinger's associate, William D. Rogers, stemmed from the review Maxwell penned for the November/December 2003 issue of Foreign Affairs of a book entitled The Pinochet File: A Declassified Dossier on Atrocity and Accountability, written by Peter Kornbluh. The fallout from this fracas left Maxwell with no option other than to resign his position at the magazine as well as his endowed chair as a fellow at the Council on Foreign Relations in May 2004 - positions he had held for fifteen and eleven years respectively. The controversy has left both institutions tarnished and compromised in the eyes of many. Maxwell recounts the details of this convoluted tale in a meticulously constructed working paper for the David Rockefeller Center for Latin American Studies at Harvard University where he now teaches.

The Book

The author of the book at the center of the maelstrom, Peter Kornbluh, is one of the lead researchers and co-founders of the National Security Archive - a non-profit, non-partisan research library dedicated to the acquisition and cataloguing of declassified government documents. Kornbluh himself has played a leading role in efforts to get the US government to declassify documents relating to US foreign policy in South America during the 1970s over the strenuous objection of people like Henry Kissinger who served as National Security Advisor and later Secretary of State in both the Nixon and Ford White Houses during the period in question.

Kornbluh and others like him eventually succeeded, after lengthy legal challenges, and in 2003 vast quantities of previously classified documents, including conversations among the principals in the White House, were made publicly available through the Freedom Of Information Act (FOIA). Kornbluh then proceeded to compile the evidence from these documents, and reproduce many of them in the book that Maxwell eventually reviewed. Amongst the findings Kornbluh derived from the declassified documents, three disturbing episodes in US foreign policy in relation to Chile stood out:

First, Kornbluh discovered details pertaining to the CIA's involvement in a kidnapping that resulted in the murder of Chile's chief of staff, General Rene Schneider, in 1970. Schneider's elimination, which came three years before the coup, according to Maxwell's review, "was regarded as essential by the Nixon administration, since Schneider was a strict constitutionalist and therefore an obstacle to U.S. efforts to promote a military intervention before Allende could take office."

The second chapter of US-Chile relations examined by Kornbluh was the CIA's extensive involvement in the coup that toppled Chile's democratically elected president, Salvador Allende, which resulted in the installation of the brutally repressive despot, General Augusto Pinochet. In a coincidence that neither Kornbluh nor Maxwell dismiss outright as mere chance, the coup that toppled Allende was undertaken on September 11, 1973 (in fact, Maxwell's review is entitled "The Other 9/11"). While the coup itself was carried out by Chileans, the CIA provided logistical support and financial contributions to the cause, as well as actively setting the conditions by engaging in numerous actions intended to destablize Chile and make the situation ripe for the toppling of a democracy in favor of a dictatorship. In turn, Pinochet regime's rule spanned two decades and resulted in the torture, repression, and death of tens of thousands of innocent Chilean citizens. From Maxwell's review:

But what is very clear in all of this is that the coup in Chile is exactly what Kissinger's boss wanted. As Nixon put it in his ineffable style, "It's that son of a bitch Allende. We're going to smash him." As early as October of 1970, the CIA had warned of possible consequences: "you have asked us to provoke chaos in Chile. ... We provide you with a formula for chaos which is unlikely to be bloodless. To dissimulate the U.S. involvement will be clearly impossible." The Pinochet dictatorship lasted 17 long and brutal years.

The third installment of US policy exhumed by Kornbluh from the declassified documents deals with the knowledge and involvement on the part of the CIA and the White House in Operation Condor - an international state-sponsored terror network set up by the Pinochet regime to track and eliminate opponents living abroad with the cooperation of the governments in Argentina, Uruguay, Paraguay, Bolivia, and, later, Brazil, Peru, and Ecuador. US policymakers even knew that a Chilean assassination team had been planning to enter the United States to carry out the infamous car bomb assassination on September 21, 1976 of Orlando Letelier, Allende’s foreign minister and later minister of defense, who perished along with Ronni Moffitt, his American assistant. This brazen act of cross-border violence occurred in Washington DC less than fourteen blocks from the White House.

Maxwell summarizes Kornbluh's findings:

Kornbluh's bill of particulars and the supporting documents he has uncovered confirm the deep involvement of the U.S. intelligence services in Chile prior to and after the coup. In outline, this story has been known for many years and will be no surprise to Chileans. The extent of the involvement was originally hinted at during the Senate hearings conducted by the late Frank Church in the mid-1970s. The scope and nature of these clandestine activities are significantly amplified by the documents released in the extensive declassification ordered by President Bill Clinton in 1999 and 2000 and reprinted in Kornbluh's book. These documents include: transcripts of top-secret discussions among President Nixon, Kissinger, and other cabinet members on how "to bring Allende down"; minutes of secret meetings chaired by Kissinger to plan covert operations in Chile; new documentation of the notorious case of Charles Horman, an American murdered by the Chilean military and subject of the movie Missing; comprehensive documentation of the Letelier case and the extensive CIA, National Security Council, and State Department reports surrounding it; and U.S. intelligence reporting on Operation Condor.

For many unfamiliar with the details of this sordid chapter in US foreign policy, the fact that the US government actively undermined a democracy in favor of a brutal military dictator may come as some surprise. Unfortunately, it was not a practice limited to Chile, or South America in general. A fair appraisal of this period in American history would also shed light on US tactics in other parts of the world for, as Maxwell points out, "US methodology in Chile was not that different from the tactics used to remove regimes from Guatemala City to Tehran deemed dangerous to the geopolitical status quo." Both Iran and Guatemala saw their democratically elected leaders, Mohammed Mossadegh and Jacobo Arbenz respectively, fall victim to coups instigated, engineered, and supported by the CIA. Both cases were also confirmed through the release of documents made through FOIA requests, although the events were relatively well known to historians regardless of the corroboration. In the case of Iran, we are probably still living with the repercussions of our anti-democratic actions to this day.

The Review

Henry Kissinger and William Rogers, his long-term collaborator and vice chairman of his consulting firm Kissinger Associates, Inc. (Rogers had also served under Kissinger in the State Department in the 1970s, including a stint as Assistant Secretary of State for Inter-American Affairs during the Ford administration from October 1974 to June 1976 and then as Undersecretary of State for Economic Affairs until 1977), both actively sought to preempt the critical reception of the Kornbluh book before its release, maintaining that the alleged connection between the US and the Allende coup was a mythical fantasy perpetuated by the Left - this despite the fact that the book was based on actual government documents. Kissinger even went as far as to try to place a favorable story in Foreign Affairs which sought to repudiate Kornbluh's findings, written by Mark Falcoff from - stop me if this sounds familiar - the American Enterprise Institute. According to Maxwell:

Rogers arranged for Falcoff to visit Kissinger in New York where he was granted access to Kissinger’s telephone transcripts of this period. But the ploy did not work. Foreign Affairs rejected the article. [The editor of Foreign Affairs James] Hoge told me he regarded Falcoff’s piece as "too narrow a defense of Kissinger." He then asked me to write a more wide-ranging review essay on Kornbluh’s book for the next issue.

Falcoff’s rejected article was subsequently published in Commentary magazine with the title "Kissinger & Chile: The Myth That Will Not Die."

Falcoff's article presented the dubious proposition that the Nixon White House was in no way complicit with the coup.

To prove his point Falcoff quoted from a conversation between Nixon and Kissinger on September 16, 1973, five days after the coup in Chile. Nixon asked Kissinger: "Well we didn't—as you know—our hand doesn't show on this one though." According to Falcoff, Kissinger answered: "We didn't do it."

The problem is, Falcoff was being rather selective with his recollection of that exchange. He deliberately left out the second part of Kissinger's statement which suggests an active involvement in the events of September 11, 1973, directly in contradiction to his main thesis.

As a result of the release of the full text of these telephone conversations by the National Security Archive on May 26, 2004, we now know what Kissinger actually said on that occasion was as follows: "We didn’t do it. I mean we helped them. _______ created the conditions as great as possible (??)" [ed note: according to Maxwell's footnotes, the blank underline and parenthesis with the double question mark are in the original transcript].

Although Maxwell anticipated some form of reaction from Kissinger and Rogers, the initial release of the review was met with little controversy, as many considered Maxwell's appraisal to be balanced, and the underlying subject matter relatively well known at the time in any case.

My review of Kornbluh’s book in Foreign Affairs was not inflammatory. Leslie H. Gelb, former president of the Council on Foreign Relations, told me that he had read it three times and found it to be "straight down the middle." Nor did Hoge find it "biased" before Kissinger made known his displeasure. Hoge's editorial comment on the review, found in the table of contents of the issue in which it appeared, reads as follows: "Thirty years after the overthrow of Salvador Allende in Chile, The Pinochet File, a 'dossier' of declassified documents, lays out the true U.S. role."

After reading Maxwell's review, I agree with Les Gelb's appraisal, and would even fault the author for bending over backwards to present the facts in a light most favorable to the CIA and the Nixon and Ford administrations.

The Reaction

Shortly after the release of the issue of Foreign Affairs containing the review in question, Maxwell was informed that Rogers would be writing a response in the form of a letter to the editor to be published in the subsequent edition of the magazine. As is customary, Maxwell was given the opportunity to respond to Rogers' letter. But this is where the story takes an unanticipated turn. Rogers was granted the privilege to write a second response to Maxwell which significantly raised the ante by insinuating that Maxwell's judgment was clouded by personal bias, possibly influenced by his position at the Council. In addition, Rogers' response was replete with factual error used to bolster his claims (the details of each are well examined in Maxwell's working paper).

Astonishingly, Maxwell was denied the right to defend himself from these personal attacks and set the factual record straight by his own editor James Hoge (who, by way of background, is also the vice chair of the board of Human Rights Watch). Maxwell soon learned, through Hoge and others, that Kissinger had been exerting pressure on the Council and the editor of Foreign Affairs to end the discussion with Rogers' last missive. Maxwell recounts.

I now know that the die had been cast from the beginning. As Rogers himself inelegantly put it to Diana Jean Schemo of the New York Times, "[Hoge] promised me that I would have the last word and that Maxwell was shut off."

Kissinger preferred to stay above the fray on this matter, instead enlisting Rogers, as well as a pair of extremely influential friends with close connections to the Council and Foreign Affairs: Peter Peterson and Maurice Greenberg.

Peter G. Peterson, chairman of the Council on Foreign Relations, publicly confirmed Kissinger’s anger and his own role in communicating it to Hoge. In fact, Peterson saw no conflict at all in his action:

[According to an article appearing in the Chronicle Of Higher Education discussing the matter] Mr. Peterson, who is also chairman of the Blackstone Group, a capital-investment firm, says he called Mr. Hoge in December merely to convey Mr. Kissinger’s unhappiness. "I didn’t ask him to do anything," he says. "I’m the chairman of the organization. If a member calls, and he's unhappy about something, I don’t think it’s unnatural for me to say, 'Jim, this is your area. You deal with it however you see fit.' ... But that I would interfere with anything specifically like that is really an outrageous suggestion. I have great respect for Hoge and for the independence of that magazine."

Kissinger, I was told, had not only enlisted Peterson to convey his anger, but also his old friend Maurice ('Hank') Greenberg, the vice chairman emeritus of the Council’s board and the powerful head of the giant American International Group (AIG) insurance conglomerate, the largest commercial underwriter in the United States.

According to Maxwell, Kissinger was careful in his selection of go-betweens.

Kissinger had chosen his messengers well. In addition to their central roles on the Council’s board of directors, Peterson and Greenberg have been highly engaged and generous benefactors of the Council, contributing more than $34 million between them directly in personal donations and indirectly, via the privately-held Blackstone Group in the case of Peterson, and, in the case of Greenberg, via the Starr Foundation, of which he is chairman. They had both provided major funding for Hoge’s endowed chair, the Peter G. Peterson Chair. Peterson had also been a generous contributor to the endowment of the chair I myself held at the Council on Foreign Relations. Neither is a man to be crossed lightly.

That Kissinger was adept at selecting his emissaries was apparent from the reaction that Maxwell perceived in his editor James Hoge.

Hoge explained he had been subjected to great pressure from Henry Kissinger. He said that "Henry will not speak to me or shake my hand." He again told me Peterson had called on Kissinger’s behalf. He said he was called and "sworn at for half an hour" by Greenberg. He said of Kissinger: "Henry has a very dark side," and that Kissinger had sought to interfere before in Foreign Affairs during the editorship of his predecessor William ('Bill') Hyland. He said that he did not think that the breach that resulted between Kissinger and Hyland, who were old friends, had "ever been fully repaired." Very much on his mind, it seemed to me, was how far he could go in criticizing Kissinger without having a similar breach. [emphasis added]

The Permanent Stain

Having been denied a forum in his own periodical to respond to criticisms published therein, a right that is sacrosanct to editors and writers alike, Kenneth Maxwell chose to resign in protest, and on principle, after a long and distinguished career within each body. The credibility and integrity of Foreign Affairs and the Council on Foreign Relations will be undoubtedly tarnished by this affair. After all, as Maxwell went to great pains to communicate to Hoge and his peers at the Council, the story of Kissinger, Chile, and Operation Condor was already out - in fact Maxwell had also reviewed, for Foreign Affairs, John Dinges' book The Condor Years: How Pinochet and His Allies Brought Terrorism to Three Continents, which detailed many of the same events as Kornbluh's tome. Perhaps most importantly though, both books, and numerous essays and articles on the matter, are based on factual accounts of actual documents released after being declassified and obtained through FOIA requests, not dubious accounts revealed through anonymous leakers with ulterior motives. Therefore, their reliability rises above the suspicions of partisanship and the unreliability of mere speculation. The emerging conventional wisdom is bound to gain more credence and circulation with the imminent release of even more declassified documents. The Council's craven capitulation will become more apparent with the passage of time, as the truth is revealed piece by piece.

It didn't take long for the Council's actions, and those of Hoge, to come under scrutiny and criticism from well respected quarters. Articles appeared in many periodicals and newspapers and the September/October 2004 issue of Foreign Affairs even contained a letter of protest signed by Harvard Professor John Coatsworth and ten other distinguished Latin Americanists who are members of the Council on Foreign Relations.

To the Editor:

We members of the Council on Foreign Relations have devoted much of our professional lives to the study of Latin America and the relations between the United States and this region. We read Kenneth Maxwell’s balanced and thoughtful review (November/December 2003) of the recent collection of official documents edited by Peter Kornbluh and published by the National Security Archive under the title The Pinochet File: A Declassified Dossier on Atrocity and Accountability.

We were thus dismayed by the tone and the content of the two letters from former Undersecretary of State William D. Rogers (January/February 2004 and March/April 2004), and appalled by the journal’s decision not to publish a response by Maxwell to the second of the Rogers letters, which sought to impugn the motives and integrity of Maxwell, a scholar of impeccable rigor and honesty. This decision denied readers an opportunity to weigh competing views, contrary to the journal’s policies and traditions.

Though appreciative of the support, Maxwell, much to his chagrin, perceives the influence of Kissinger and Rogers in the way even this matter was handled.

The "Letters to the Editor" section where this exchange appears has not been posted on the magazine’s online edition of this issue, the first time such a letters column has been excluded. Rogers' letter attacking me for bias, for example, is posted online under the title "Crisis Prevention." Nor is there any acknowledgment in this issue of Foreign Affairs that book reviews on the Western Hemisphere are missing, the first time this has happened.

More seriously, Hoge, without the consent of the signatories, removed the final sentence of the letter sent to him. The uncensored version had concluded with a request:

We urge you to find an appropriate way to repair this lapse before it becomes a permanent stain on the reputation of Foreign Affairs.

In order to comprehend the magnitude of this matter, consider that the Council on Foreign Affairs has chosen to acquiesce to the will of a powerful member rather than finally vet and debate, accurately, the true story of Kissinger’s policy toward the Southern American military dictatorships of the 1970s, including Chile and Argentiana, much of which was less than savory by any standards.

In closing, I will give Maxwell the final say that was unfairly denied him by his own literary home.

I may be naive, but to me it is deeply shocking that Kissinger, who found refuge in the United States when his family escaped the Nazis, should as U.S. Secretary of State undermine the human rights protests of his own diplomats and of the U.S. Congress in private conversations with representatives of the murderous regimes of the Southern Cone, one of which (the Argentine) was virulently anti-Semitic. And it is no less shocking for Rogers to assert that Kissinger’s defense of human rights was "robust," and to claim for Kissinger the initiation of a human rights policy that was in fact begun and sustained by his Democratic and Republican successors and by the continuing pressure of U.S. Congress, if only for one very simple reason: subsequent U.S. policy saved lives. Kissinger’s evidently did not, not Letelier’s, nor many thousands other less notable victims of state terror. It is sad that an editor who I respected—especially one who is the vice chair of the board of Human Rights Watch—should let these misrepresentations and obfuscations stand without challenge.