National : The Atlantic

In Birth Control Debate, Religious Beliefs Don't Trump Rights

2012-02-09T12:40:00-05:00

The question of whether employees in church-affiliated organizations should receive contraceptive benefits is not a moral issue. It's a civil rights issue.

Speaking at a news conference, Sen. Marco Rubio (R-Fla.) criticizes President Barack Obama for insisting that employers must provide health insurance that includes birth control for women. AP Images

You might expect the Catholic Bishops to recognize an Inquisition when they see one. But listening to their laments about the administration's "unprecedented assaults" on religious liberty, you'd think Barack Obama was the second coming of Torquemada. Reasonable people will differ about the justice or wisdom of requiring church-affiliated employers to include contraceptive coverage in employee health insurance plans, but only unreasonable ones will regard this requirement as the coup de grace of religious liberty. Churches are exempt from the obligation to provide reproductive health care coverage; the requirement applies instead to affiliated hospitals, schools, and other institutions that generally receive public support to employ and serve religiously diverse members of the general public.

What accounts for the rhetorical excesses of the Catholic Church and its advocates on the campaign trail and in the media? They reflect some genuine outrage, no doubt. But, in part, the rhetoric is an organizing tool (which may succeed in wresting new concessions from the administration). And in part, it reflects larger rhetorical trends: We inhabit a culture of hyperbole, especially during election years. Every argument is a gunfight (to which someone mistakenly brings a knife), every gunfight is a war, and every war a potential apocalypse.

Still, while the fate of American civilization doesn't depend on this debate about the obligations of church-affiliated institutions to abide by secular law, the stakes are relatively high. As government workers are laid off and government programs shrink, the public role of private, tax-exempt non-profits expands. The stronger their right to dispense public funds and deliver public services according to sectarian religious dictates, the weaker our rights to a non-sectarian public sphere. It's a zero-sum game.

Non-sectarianism may lose out in the end, regardless of the unpopularity of some sectarian ideals (in this case, opposition to birth control). The desires that drive people to behaviors that their religious leaders deem sinful don't generally drive support for eradicating the very concept of sin. Eliminate sin, after all, and you'd eliminate the pleasure, and perhaps the possibility of redemption. And despite the emergence of a coherent non-theist movement, religiosity (in approved forms) remains essential to prevailing concepts of patriotism -- and, with few exceptions, to political success in state or federal elections. (This is not only the case in Republican primaries, where the non-existent threat of a "secular, socialist America" looms large.)

Reproductive choice has been an obvious casualty of sectarianism. State and federal laws impose dramatic, direct limitations on abortion rights. Conscience clauses allow pharmacists and physicians to refuse medical treatment, even when a patient's life is at stake. This right of refusal is defensible -- so long as it's accompanied by an obligation of the pharmacy or health care facility to ensure that that there are always other providers on the premises willing to dispense contraception and perform elective or medically essential abortions.

But conscience or refusal clauses are also reminiscent of policies allowing white-only hospitals to refuse treatment to black patients, or accommodations to black travelers, in the segregated South. What if belief in segregation were an article of faith, a matter of conscience, for some? (Some clergymen once defended slavery.) I'm not comparing opposition to birth control with racism, much less slavery. I'm simply pointing out that religious beliefs can, and often do, conflict with civil society and individual rights.

Would we tolerate a religious right to refuse treatment or accommodation on the basis of race as readily as we tolerate a religious right to refuse reproductive health care? Of course not. Your right to act on your religious beliefs is not absolute; it's weighed against the rights that your actions would deny to others. Today, and perhaps for the foreseeable future, claims of religious freedom tend to outweigh claims of reproductive freedom. But that is a consequence of history, politics, and culture and is subject to change. The balance of power is not divinely ordained.

The Book of the Century About the Death Penalty

2012-02-09T12:25:00-05:00

Capital cases are a mess because we are too human to conduct them properly -- and too arrogant to concede mistakes.

AP Images

If you want to better understand why America is slowing turning away from the death penalty, do yourself a favor and read this excerpt from Anatomy of Injustice by Raymond Bonner in the new issue of The Atlantic. The journalist, author, and Atlantic correspondent, has written a masterful book (to be released on February 22) about the application and excesses of state capital punishment regimes. It is as eloquent, important, and accessible an addition to legal scholarship as was Anthony Lewis' first masterpiece, Gideon's Trumpet, two generations ago.

It doesn't matter on which side of the death penalty gulf you reside. If you believe in capital punishment, you ought to read the book to better understand why 100 million or so of your neighbors believe the system is arbitrary and capricious and beneath the dignity of a civilized nation. And if you are opposed to capital punishment, you ought to read the book to understand exactly how and why so many politicians and prosecutors are full of crap when they profess their confidence in the accuracy and reliability of convictions in capital cases.

The Last Line of Defense

Anatomy of Injustice focuses upon a single case in South Carolina, in which a black man named Edward Lee Elmore was thrice tried, convicted, and sentenced to death for the murder of an elderly white woman named Dorothy Ely Edwards. She was killed in 1982, and Elmore was first tried just a few months later. And yet, incredibly, just before Thanksgiving of this year, 30 years after the murder, the 4th U.S. Circuit Court of Appeals granted Elmore the right to his fourth new trial. He has been in prison all this time, often on death row.

"Having scrutinized volumes of records of Elmore's three trials and his state [post-conviction-relief] proceedings," the sharply-divided federal appeals court ruled on November 22 in a 194-page opinion, "we recognize that there are grave questions about whether it really was Elmore who murdered Mrs. Edwards." In this sentence, we see an essential truth about the failure of capital punishment in America. It's disconcerting enough that the law fails to require the level of certainty that morality demands. What's worse is that even the lower standard goes unmet in a shocking number of capital cases.

In the introduction to his book, Bonner writes:

By and large, however, the system yields justice. As a former prosecutor and defense counsel, however, I know the system is only as good as the lawyers who administer it -- prosecutors, defense counsel, judges. If prosecutors abuse their authority, if defense lawyers are lazy or incompetent, if judges are weak or biased, the result is injustice, and in capital cases that can spell death.

Here, Bonner is channeling Supreme Court Justice William O. Douglas from his concurrence in Furman v. Georgia, the 1972 case that briefly ended America's death penalty experiment. Justice Douglas wrote:

The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions. It would seem to be incontestable that the death penalty inflicted on one defendant is "unusual" if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices...

Forty years apart, what both men found with capital punishment in America is that the law requires a level of accuracy that mere mortals are too often unable to accomplish. To his explanation, Bonner might well add: 1) jurors, who are often insultingly quick with their capital verdicts; 2) witnesses, who are often (intentionally or not) inaccurate with their testimony; 3) the police, who either knowingly or negligently disregard facts and evidence; 4) legislators, who have skewed rules to favor finality over accuracy, and; 5) prosecutors, who way too often put local politics over proof. And don't forget the media!

What is undeniable today, and what Bonner's book in its rich detail shows so well, is that the "play of prejudices" Justice Douglas warned about is unavoidable in many capital cases. It cannot be regulated away. It cannot be commanded by the justices in Washington. There is no federal rule of criminal procedure that governs it. Criminal justice budget shortfalls all over the country sure won't tamp it down. Too many of our capital cases are a mess -- including the Elmore case -- because we are too human to do it right in the first place, too immodest to concede our mistakes, and too cheap to fix them anyway.

MORE ON THE DEATH PENALTY

The Looming Death of the Death Penalty

Why Lawyers and Judges Should Watch Executions

Why America's Death Penalty Just Got Us Sanctioned by Europe

The Appeal of Death Row

Bonner identifies several books he believes were instrumental in educating him about criminal justice and the practice of the death penalty in America. One is Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America by David Oshinsky. The other is The Origins of Adversary Criminal Trial by John H. Langbein, the Yale Law School professor. To this list I would certainly add The Death Penalty: An American History by Stuart Banner, published now a decade ago.

Bonner's book is different from each of these, and I think potentially more influential, because it will seem more accessible to the general reader. Accessible not just because of Bonner's writing style but also because the narrative opens itself up to people on all sides of the debate. It does not minimize the horror of the crime. It does not disrespect the memory of the victim. It does not mock the community's interest in punishing the murderers in its midst. It's a reporter's book, not a professor's book, and it yields to a broader reach.

That's good, because the more people who read up on this topic, the more will understand the inherent paradox of today's death penalty. The law commands us to do better, but we have proven for 35 years that we cannot always do things right. And our pocketbooks and our prejudices and our pride prohibit us from fixing the system. South Carolina. North Carolina. Geogia. Ohio. Texas. Louisiana. The venues change but the problems persist. You can point to a dozen moments in Bonner's long narrative where more good faith by public officials, or at least more good will, might have made a difference. How do you legislate that into the system?

Bonner's book comes at a crucial time in the modern history of the death penalty. It comes at a time when views are slowly hardening against the current unreliable and expensive system. It comes at a time when several states are looking to eliminate their capital regimes. It comes at a time when even the conservative Supreme Court has sent a signal that capital cases must be handled better. It's a book that surely comes too late for some death row inmates but perhaps just in time for others.

When Journalists Write Like Flacks

2012-02-08T15:26:43-05:00

From a Marcus Brauchli memo to employees of the ever-shrinking Washington Post, which just announced a new round of buyouts:

Today, we are announcing that we will offer a voluntary buyout to some Newsroom employees. Our objective is a limited staff reduction that won't affect the quality, ambition or authority of our journalism.

Of course, right? Why would fewer employees in a labor-intensive business possibly mean a diminution in quality, ambition or authority? Washington Post journalists, like all other journalists, are trained to mock spin like this.

The Radicals: How Extreme Environmentalists Are Made

2012-02-08T12:40:08-05:00

They chain themselves to trees and sabotage bulldozers. But behind their united front, many eco-warriors have very personal -- and conflicting -- reasons for devoting their lives to the cause.

Two protesters pull up a drawbridge to block loggers from entering Oregon's Willamette National Forest. (AP Photo/Jeff Barnard)

Sitting in the woods one day at the age of 15, Christopher Irwin wasn't thinking about the environment. He was thinking about suicide. For a meticulous teenager with an inclination toward precise planning, the logistics weren't a problem: nearly everyone he knew in his hometown of Charleston, West Virginia, owned a gun. If that weren't enough, his house was filled with an abundance of prescription pain medications.

The pills belonged to his stepfather who was losing a fight with prostate cancer. Irwin's mother had decided she would home-care her husband, and for two years she served as his nurse. With his condition deteriorating and his pain escalating, medications littered their home.

"He begged my mother to overdose him," Irwin recalls. Irwin's bedroom shared a wall with his parents, and he could hear their arguments -- the constant, desperate pleas of a man dying in severe pain. Irwin did the only thing he could: escape. On weekdays, the boy would grab two slices of toast and down a glass of Tang. Once out the door, he did his best to avoid returning. "I lived in the library, and when Friday came, I'd grab my backpack and head for the woods."

It was on one of his weekend getaways that Irwin found himself sitting in a clearing contemplating suicide. It was difficult to stop thinking about his stepfather. The doctors believed the cancer was the result of his years spent working as a chemical engineer for Union Carbide. Irwin wasn't a doctor, but he knew that when his stepfather came home from work he'd immediately jump in the shower to get the thick layer of chemicals off his skin. And now, when he thought of the cries of pain waiting for him at home, suicide seemed like a good option.

"I heard the trees rustling, and I decided to kill myself. I knew where I was going to go, and what I was going to do."

But something made Irwin pause. "If I'm going to end it, I might as well do something with my life," he told himself. That something became obvious once he looked around him. "I decided that yeah, I liked these trees, and that there were some people who were trying to fuck with them, so that instead of suicide I could try fighting those people. Instead of turning to suicide, I turned to protest."

Irwin's brother Brian recalls seeing a change in Irwin after that. "He was much more reflective, somewhat stormy, he definitely turned inward. I guess he confronted his demons."

Nearly 30 years later, that same conviction is on display in Irwin every Tuesday night when he joins a group of like-minded activists at Barley's Tap Room in the Old Town section of Knoxville, Tennessee. They all believe in some form of radical environmentalism. Most don't have life and death stories of "conversion," but many can point to a moment, a "wilderness experience" as they call it, that convinced them to commit their lives to protecting the environment.

These epiphanies are often reminiscent of spiritual awakenings, according to Dr. Harold Herzog, a psychology professor at Western Carolina University who specializes in moral decision-making and affinity with the outdoors. "The similarities between [activists' moments of] commitment and religious conversion is astounding," Herzog observes. "Then there is the evangelism side, trying to convert others." The form this "evangelism" takes can often be traced back to an activist's own wilderness moment. This can cause friction in radical environmentalist movements -- as members argue for their own personal visions, infighting can ensue and leaders are regularly pushed out.

Irwin knows this all too well. Early in his new life as an environmentalist, he was drawn to an activist group called Earth First! Its co-founder Dave Foreman had experienced his own wilderness moment as a boy -- for Foreman, it arrived in the form of the New Mexico wolf. The first books he'd ever read on his own had been his mother's copies of Wildlife Illustrated and Wildlife of the World. He adored those two hardbound red volumes with their gold lettering and endless renderings of animals. Today he still handles them lovingly, always careful to set them down with both hands on a coffee table. They are still in pristine condition, the covers still attached and the pages bearing few marks. Whenever someone else handles these cherished items, Foreman's eyes stay fixed on the books.

Along with animals, Foreman loved the New Mexico wilderness. His father was a member of the military, so the family moved around a great deal, but every Christmas they would return to Albuquerque. "Being able to see the Sandia Mountains, it is sort of this beacon of wilderness. I just loved the mountain and looking at it," Foreman recalls. While his surroundings and friends changed from year to year, the New Mexico wilderness was a constant, an annual dose of stability.

His affinity with the Southwest drew him to the works of Ernest Thompson Seton, a trapper, naturalist and illustrator. It was while reading one of Seton's books that Foreman came to a sudden realization. "When my family moved to New Mexico at the turn of the century there were wolves in Mexico, and when I was born in 1946 they were gone," Seton says. He felt as though he had been cheated out of something and recalls being struck by "a sense of loss."

Years later, after stints working for more mainstream environmental organizations, Foreman co-founded Earth First! His experiences as an activist had thus far been frustrating and disheartening. Compromise was considered a necessary step for success, but after each small victory, the large-scale logging and resource-extraction carried on as always. "You thought well, we can't get more than that," says Foreman. "But with Earth First! We said screw that, we're going to ask for what we really want."

Initially the founders liked to refer to themselves as "Rednecks for Wilderness," a slogan that was quickly picked up by the media and caught the attention of many young people, including Irwin. It was a different breed of environmentalism, one focused on revelry and humor rather than elitist self-righteousness.

Indeed, the group's first successful action of the group had comedy at its core.

On March 21, 1981, a clear crisp early spring day, five people, struggling under the weight of a carefully rolled heap of black plastic, stumbled to the center of the Glen Canyon Dam and cast one side over the edge. The sheet was so long that it nearly reached the bottom of the dam, taking more than 20 seconds to unfurl. From a distance, the gray concrete of the dam now appeared to be "cracked" down the middle by a tapering width of black. The image would become an icon of the radical environmental movement.

But while the tactics of the organization were at first humorous, the group grabbed national attention through a type of industrial sabotage known as monkeywrenching . The term is a reference to The Monkey Wrench Gang, Edward Abbey's 1975 book about radical environmentalists in the Southwest.

By the time 1985 rolled around, Earth First! had gained notoriety for pouring sand into the crank cases of bulldozers, spiking trees with nails to ward off loggers, and pulling survey stakes to prevent road building. Adding to the discussion was Ecodefense: A Field Guide to Monkeywrenching, a 1985 book, edited by Foreman, that detailed various techniques and encouraged their use.

Foreman refused to back down from his radical stance even after George Alexander, a young mill worker from California, hit a tree "spike" as he was sawing through a trunk. A nail in the tree shattered the saw, sending pieces flying at the adjacent workers. Alexander escaped the incident without major injury, but with numerous lacerations and a broken jaw. When he was interviewed in his hospital with his head bandaged and his young wife by his side, he made an excellent victim in the eyes of the public. But Foreman stubbornly continued to support tree spiking and continued to show up in his cowboy boots to interviews, suggesting that the fight for wilderness was a war.

Foreman's vision soon came into conflict with that of another Earth First! co-founder, Mike Roselle, for whom the George Alexander incident was the last straw. More than a decade after the split, Roselle still gets visibly irritated when discussing Foreman's departure from Earth First! Roselle is a man of extremes, more likely to down a string of beers than a single pint, stroking his plentiful beard as he stays up late into the wee hours of the morning enjoying the company of friends. He still spends time in the field organizing and fundraising passionately.

Unlike Irwin and Foreman, Roselle started his activism long before he had his wilderness experience. But it was a drug-induced romp through the mountains that would shape his life's passion.

Roselle grew up in Louisville, Kentucky, an aging city blighted by racial tension and joblessness. When his family moved to Los Angeles in 1968, Roselle didn't quite fit in with his new environment. "I came out from Kentucky, I was all for George Wallace, I was all for John Wayne, I was all for killing gooks. That's the way I was. When I went to school in California, my best friends were like 'What are you talking about Mike?'"

Slowly, California began to change Roselle. "I started going down to Bond Street in L.A. That's where all the hippies hung out. My parents didn't have any idea I was going. And I was exposed to the underground press. I was into the Grateful Dead and all that stuff. So I was moving toward the left." Roselle quickly became interested in social justice, politics, and, above all, rebellion. For Roselle, the act of rebellion was nearly as important as the cause, and his thirst for female attention led him to many groups and causes.

It wasn't until a friend suggested that he explore the wilderness that he focused on the wild. "I made my life backpacking. I took to that just as radically as I take to anything. I made it my life. And so I hiked and hiked and hiked and hiked."

During a hiking trip through the White Mountains in New Mexico, Roselle had an epiphany as he sat down next to a river. "I was high on LSD, and I was sitting looking at this trout in the water, and I was like, whoa! -- because I'd never really looked at a trout before. It was the first time I looked at a fish and didn't see it as food." Roselle wasn't sure precisely what had happened, but he now felt connected to a world he had never known as a city slicker.

It was later that he received an explanation for the change. "I was talking to somebody when I got to the Grand Canyon later, and he was saying, 'Yeah, you just had a wilderness experience.' And I said, 'What?"

Roselle now had a singular mission, a cause to champion. He'd already been an activist, sure, but that activism wasn't particularly personal. It was an outlet for his rebellion. Now he was fighting for the life of a dear friend: wilderness.

But the notion of social justice that had begun his activism would never leave him, and during the late 1980s, his notion of inclusiveness and anti-violence came into conflict with Foreman's advocacy for monkeywrenching. Not only did that message deter potential supporters, it also made it much harder for Roselle to negotiate with government officials. The rift that would divide Earth First! had come to the forefront.

Unlike Foreman and Roselle, Irwin has managed to bring about change without the complications that can come with a leadership role. He attended the Earth First! Round River Rendezvous in 1989, a time when the organization was clearly in the process of splintering. A new generation of West Coast hippies and black-clad anarchists had swelled the group's numbers, but their attitude was markedly different. They were angry and vocal teenagers who hadn't spent much time outside of cities.

At the beginning of an early session, Irwin recalls, an older member made a welcome speech that included praise for the state of Colorado. "Some of the black clads were horrified," says Irwin, "and started bitching at him about how pride in a state was ridiculous and was the source of all our problems. I watched the good old boy sit down, shaking his head, and I knew he would never come to another Earth First! Rendezvous because he wasn't welcome anymore."

For Roselle, the assistance the new members offered outweighed any concern over their differences. In fact, it was Roselle who had recruited many of them when he was working Northern California and the Pacific Northwest on various Earth First! actions. "We worked with the whole fruit salad of leftie groups. That's where I think some of these people got confused, because we had a lot of allies who we couldn't have won the battle without." But Foreman was already on his way out the door, largely because of these new members and the way their sensibilities clashed with his own cowboy creed. (He was also under investigation by the FBI and facing mounting legal troubles.)

Irwin, who fancies himself "a good old southern boy," also was turned off by what he found at the Rendezvous. Early on during the event, he plopped himself down next to a group of young "black clads" who were having a lively debate about what made a "true" anarchist. Irwin could see how force outweighed substance.

Finally, he decided to try an experiment. "I asked what would happen if ants infested vegan food and the vegans ate the food with the ants. Would it still be vegetarian? They then argued about that for ages, and I realized I was out of my league."

Today, Irwin continues to use the Earth First! name in some of his work, but his ties to the organization are gone. He got his law degree when he realized that legal action was the most effective tool available against mining companies. After getting arrested so many times with Earth First!, he figured he already had a head start on other would-be lawyers. He now spends most of his time in and out of courtrooms. He argues cases in a spotless new federal court building, but he doesn't fint the mold of a high-powered attorney. His shoes, well worn and probably never polished, betray him. Even his undergarments are slightly out of place. "It always feels weird wearing long underwear under this suit," he says.

While most of his cases involve local drug offenses, he finds a way to do as much legal work as he can to support the fight against wilderness destruction. Being an attorney is a good fit for his personality, allowing him to work on filings in peace, enjoying a functional isolation that still allows for activism.

And he always finds time to meet with other activists at Barley's to arrange protests and fundraisers, even if he does seem withdrawn. Where logging was once the major enemy, coal mining now is. He fights mountain top removal, a particularly destructive form of coal mining, with an ever-changing cast of characters that includes students from the University of Tennessee -- students who rarely self-identify as Earth Firsters, but who use the banner for campaigns nonetheless. There is no longer a central figure for Earth First!, no longer a clash between strong personalities commanding attention. Instead, there is a collection of rather disparate chapters championing separate local causes.

Because Irwin has learned that strong voices don't last, he keeps his quiet. On a recent Tuesday afternoon, while waiting for the meeting to get started, he ordered a pint of Guinness. "You realize that's not vegetarian!" a young female student from the University of Tennessee exclaimed as he put the glass to his lips. He put the glass down and, in a measured voice, said, "I'm pretty sure that it is."

The student, with a shaved head and long dangling earrings, didn't concede the point. "No, it's not vegetarian -- because of the yeast." Irwin paused as if experiencing déjà vu and said, with a slight roll of his eyes, "I disagree, but we can talk about this later." He's managed to calmly brush conflict aside, which might be why he still can fight for Earth First! He's one of the good old boys, but he has endured.

The Daredevil Ingenuity of the All-American Soap Box Derby

2012-02-08T12:10:25-05:00

This documentary about the national soap box derby of 1936 in Akron, Ohio, was sponsored by an assortment of newspapers and General Motors. Courtesy of the Prelinger Archive, this excerpt from the ten minute film focuses on the main event -- the finalists face off in their homemade cars before a crowd of hundreds, accompanied by enthusiastic, super patriotic narration.

For more films from the Prelinger Archive, visit http://www.archive.org/details/prelinger.

In Wake of Sex Abuse Scandal, an L.A. School Replaces Its Entire Faculty

2012-02-08T11:07:00-05:00

After two teachers were arrested for molesting students, the school district imposed dramatic measures -- but the public's trust may already be shattered.

Parents and students of Miramonte Elementary School march to the site of a meeting with Los Angeles Unified School District Superintendent (LAUSD) John Deasy where he announced that the entire teaching staff of Miramonte Elementary School will be relocated (Reuters)

A few years ago, after a spate of teachers in Las Vegas were arrested for sex-related crimes involving students, I interviewed the human resources director of one of the nation's largest school districts to ask what measures were in place to prevent such grievous abuses of trust.

The district already was fingerprinting potential hires, checking all references and cross-checking with the FBI database to make sure there was no criminal trail that had been masked by a move from one state to another. She told me she wished someone would invent a device that would detect "a black heart" in anyone who would work with children.

Do Teacher-Student Facebook Friendships Cross the Line?
Questions Raised on the Low Bar For Teacher Licensing Exams
A New Prelude to Student Debt: Food Stamps

Such a device might have been useful at a Los Angeles elementary school, where two teachers are accused of sexually abusing students -- with some of the allegations stretching back over two decades. Parents demanded action, and this week L.A. Unified Schools Superintendent John Deasy responded by temporarily replacing the entire campus staff at Miramonte Elementary.

Even so, Deasy's decision wasn't enough to quell the outrage or fear of some families, like Nancy Linares, whose granddaughter is a Miramonte student. "Instead of asking, 'Did you learn something today?' I asked, 'Did someone touch you?'" Linares told the Los Angeles Times.

Sadly, stories of teachers being accused of molesting students are not uncommon. But the details of the charges against Mark Berndt, who began teaching at Miramonte in 1979, are abhorrent enough to shock even hardened police investigators.

What students thought was their teacher's so-called "tasting game" actually involved him blindfolding them and then feeding them his own semen, according to police reports. Police say they found hundreds of photographs, apparently taken in his classroom, that document the abuse. Berndt faces 23 felony counts.

The L.A. Times interviewed students and families who say complaints about Berndt's behavior stretched back to at least 1991, although the investigations never resulted in charges. Shortly after Berndt's arrest, two families at the school reported allegations of sexual abuse of their children by another Miramonte teacher, Martin Bernard Springer, who started at the campus in 1986. He was arrested last week.

The replacement of an entire school staff -- although the L.A. Times reports it might be a temporary move at Miramonte -- is an extraordinary measure. In 2010, the entire staff of Central Falls High School in Rhode Island, including the principal, was fired (and later rehired) by the superintendent. But that move was based on poor achievement, rather than allegations of malfeasance or abuse.

Terri Miller, president of Stop Educator Sexual Abuse and Misconduct and Exploitation, a national advocacy organization, said she understands the frustration of parents who believe school administrators failed in their obligations to protect students.

"They had kids come forward and no one believed them," said Miller, whose organization provides advocacy and support for victims of sexual abuse by school employees. "Too often school systems think they have to substantiate allegations before they take action. That's not what the law says-they are mandated to report when they suspect abuse."

Background checks for anyone who works with children obviously make sense, but such measures only catch individuals who are already known to law enforcement. Stopping abusive situations like what's alleged to have occurred at Miramonte first requires that someone speak up. High marks should go to the local drugstore clerk who police say called authorities after some of Berndt's photographs raised suspicion.

Unfortunately, in most cases of alleged child sex abuse, the real picture might not be so easy to see.

This post also appears at The Educated Reporter, an Atlantic partner site.

Another Reason Not to Bomb Iran

2012-02-08T08:18:17-05:00

The threat of homegrown terrorism is dropping, according to a report released today by the Triangle Center on Terrorism and Homeland Security. The report, says the New York Times, "found that 20 Muslim Americans were charged in violent plots or attacks in 2011, down from 26 in 2010 and a spike of 47 in 2009."

I take this with a small grain of salt. A number of terrorism prosecutions have been borderline entrapment cases -- terrorist "plots" that took shape with the active involvement of undercover agents. So changes in these numbers could conceivably reflect changes in the zealousness of law enforcement. And in any event we're not out of the woods; a sufficiently big attack could spook Americans into the sort of hypervigilance (prolific mosque surveillance, ethnic profiling) that alienates young Muslims and so makes them more susceptible to the call of radicalism.

Still, these numbers seem encouraging, and there is reason to hope for continued progress. Some of the most high-profile cases -- the Fort Hood shooting, the botched Times Square bombing -- were, by the perpetrators' own accounts, inspired in part by either the Iraq War, the Afghanistan War, or drone strikes in Pakistan. With the withdrawal from Iraq complete, and withdrawal from Afghanistan now accelerated, maybe this kind of fuel for homegrown terrorism will decline for some time to come.

And surely, having made this progress, we wouldn't threaten it by doing something as stupid as supporting or even participating in the bombing of a Muslim country, would we?

It's kind of amazing, when you think about it: This whole "debate" over bombing Iran has included essentially no discussion of whether America's involvement in another war might revive the threat of homegrown terrorism, which was demonstrably exacerbated by past wars with Muslim countries. I'm getting that Twilight-Zoney feeling I got before the invasion of Iraq, when it slowly became apparent that the drive to war was impervious to reason.

The 8 Biggest Lessons From Yesterday's Prop 8 Ruling

2012-02-08T08:10:16-05:00

Opponents of same-sex marriage are already planning their comeback, but a close read of the court's opinion gives little reason to think they'll succeed.

Reuters

Now that I've had a few more hours to look a little more closely at yesterday's big same-sex marriage ruling -- the one that threads the eye of a needle we've all been peering through for the past few years -- it's time to highlight a little more of the nuance that accompanied the 133 pages of the 9th Circuit ruling. It's also time to step back and take the wider view. So, in honor of the ever-foundering Proposition 8, here are eight thoughts for the morning after.

1. The High Court Will Have to Weigh In Eventually. Yes, it's true that the Supreme Court is less likely to take the appeal now because the 9th Circuit limited the potential impact of its ruling. The justices can more plausibly say that they let California try to sort things out for itself. But the legal conflict over same-sex marriage is a national issue, and eventually the justices will have to decide: aside from equal protection and due process questions, does the Full, Faith and Credit clause of the Constitution require all states to recognize same-sex marriage so long as one does?

2. The Parade of Horribles Will Continue. Let's say the Supreme Court declines the case. Then what? The legal problems, in California and elsewhere, will only get worse. Same-sex marriages would resume in California. There would be another ballot initiative there that would seek only to prospectively ban same-sex marriages. More states would recognize those marriages while others explicitly blocked them. For all the political action that has occurred on this front, the worst of the legal chaos is still to come.

3. The 'Rational Basis' for Prop 8 Isn't Very Rational. Judge N. Randy Smith's dissent is notable. "Our personal views regarding the political and sociological debate on marriage equality are irrelevant to our task," Judge Smith wrote, before whittling down to an absurd nub the legal standard to be applied to Prop 8. Thus, as his language grew more specious and abstract, the "rational basis" test became the "rational relation to some legitimate end" test, which became the "reasonably conceivable state of facts that could provide a rational basis" test, which became the "have arguable assumptions underlying its plausible rationales" test.

4. The Facts Have Mysteriously Vanished. U.S. District Judge Vaughn Walker, the now-retired Republican appointee who happened to be gay, presided over the trial that resulted in his August 2010 smack-down of Proposition 8. The trial was as unequivocal as any I have ever followed. His factual findings at the conclusion of that trial were devastating to Prop 8's proponents. So what happened to all those facts on appeal? Judge Stephen Reinhardt, who wrote the majority opinion, offered this:

In a thorough opinion in August 2010, the court made eighty findings of fact and adopted he relevant conclusions of law... The only findings to which we give any deferential weight -- those concerning the messages in support of Proposition 8 that Proponents communicated to the voters to encourage their approval of the measure -- are clearly "adjudicatory" facts.... Aside from these findings, the only fact found by the district court that matters to our analysis is that "domestic partnerships lack the social meaning associated with marriage" -- that the difference between the designation of 'marriage' and the designation of 'domestic partnership' is meaningful.

The only thing worse than being a federal appellate court judge is being a federal trial judge.

5. The Best Case for Prop 8 Is a Terrible One. Here's why I think the legal fight is already over. Judge Smith, making his best argument for Prop 8, wrote this:

Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting. The assumptions underlying these rationales may be erroneous, but the very fact that they are 'arguable' is sufficient, on rational basis review.

This passage came right before the one in which Judge Smith wrote that the courts should uphold popular but discriminatory measures. He wrote:

However, Supreme Court precedent does not suggest that a measure is invalid under rational basis review simply because the means by which its purpose is accomplished rest on such biases. Rather, precedent indicates that such biases invalidate a measure if they are the only conceivable ends for the measure (emphasis in original).

This "prejudice is as prejudice does" argument is a terrible one -- and quite unlikely to impress Justice Anthony Kennedy, who is going to determine all this sooner or later.

6. Judge Smith Has a Short Memory. Let's get back to Judge Smith's dissent. Among its other failings, it is a weak, tortuous effort that negates the huge qualitative and quantitative difference in evidence presented at trial. Of Judge Walker's 80 findings of fact, most of which undermined the legal the positions of Prop 8's supporters, Judge Smith wrote: "After review, both sides offer evidence in support of their views..." Both sides? I remember Charles Cooper (right), Prop 8's trial attorney, telling Judge Walker that the facts of the case didn't matter. Who knew that he'd be right?

7. The Political Spin Will Center on "Judicial Activism.'" The 9th Circuit rested mightily upon the California Supreme Court's 2004 decisions, which first recognized same-sex marriage in the state. And the concept behind the majority's conclusion -- that married, same-sex couples in California had a vested constitutional right to those marriages because of those 2004 court decisions -- is based upon the premise that the 2004 state court decisions ("judicial activism" to conservatives) trumped Prop 8's majority vote. That's the political angle you'll be hearing about from Newt and Co.

8. Judge Walker Is Affirmed. To their eternal credit, all three 9th Circuit judges spent little time dispatching the argument that served both sides of this battle: the question of Judge Walker's sexuality. To Prop 8's supporters, Judge Walker's sexual orientation made him biased and thus worthy of being slandered; in their narrative, he became the reason they lost. To proponents of same-sex marriage, that argument itself highlighted the prejudices at play. But if same-sex marriage foes judge Judge Walker harshly, yesterday's decision is a hint that history will be far, far kinder.

What's Next for Proposition 8?

2012-02-07T16:30:00-05:00

Same-sex marriage supporters are celebrating today's 9th Circuit ruling. But the real question is whether the opinion will persuade the Supreme Court.

Reuters

Anyone surprised by the tenor and base of Tuesday's same-sex marriage ruling hasn't been paying much attention to the years-long legal battle over California's Proposition 8, the 2008 ballot initiative which sought by popular vote to end the Golden State's brief, court-sanctioned recognition of gay marriage. The 2010 trial resulted in a rout of Prop 8's forces. So, naturally, a panel of the 9th U.S. Circuit Court of Appeals, the left-coast bastion that conservatives love to hate, was going to follow suit and continue to block the enforcement of Prop 8.

The only serious question, in the 552 days between the trial court's ruling and today, was how far the 9th Circuit would travel, doctrinally, in declaring Prop 8 to be an unconstitutional violation of the due process and equal protection rights of same-sex couples. Would it follow the logic and reasoning of U.S. District Judge Vaughn Walker, the Republican appointee who presided over the trial in this case and then had to defend himself against allegations that he was biased because he is gay? Or, would the 9th Circuit strike out on its own?

In the colossal wake of Perry v. Brown, 133 pages of fur and teeth, the best answer I can offer today is that the federal appeals court's majority sought to thread a needle between recognizing the constitutional rights of certain same-sex couples to stay married and respecting the current equal protection jurisprudence of Justice Anthony Kennedy, the Republican appointee and native Californian, whose vote everyone agrees ultimately will decide the fate of Prop 8 and therefore the fate of same-sex marriage in America.

The 9th Circuit's ruling is much narrower than was Judge Walker's ruling and clearly aimed at Justice Kennedy's jurisprudence in cases involving discrimination based upon sexual orientation. The dissenting opinion, voiced by the lone Republican appointee on the panel, was notable for its reliance upon theories -- about the need to buttress "traditional marriage" at the expense of same-sex marriage -- which got nowhere at trial. Meanwhile, nothing that happened Tuesday leaves anyone in California in any less legal limbo than they were in on Monday.

You could say the "liberal" court found the most "conservative" way to resolve this case in favor of same-sex marriage -- a "third" way, the 9th Circuit wrote. And you can also say the ruling today will do nothing to end the legal and political debate on this topic. The 9th Circuit will still be blistered as liberal by same-sex marriage foes. And foes of Proposition 8 will still have to wait for another ruling or two before they can finally pronounce the thing dead. Fortunately, the justices won't likely have to face the case until next term, at the earliest.

The Ruling

Here's how the 9th Circuit tried to steer the case toward Justice Kennedy's comfort zone. Instead of declaring that marriage was a fundamental right owed to all same-sex couples, a right which the Supreme Court has not yet recognized, the majority focused instead upon the tens of thousands of same-sex couples who are legally married today in California but whose marriages would be nullified by Prop 8. Once the government affords a group of people such a right, the 9th Circuit said, it cannot by popular vote take back that right.

Of Prop 8, Judge Stephen Reinhardt wrote early in his opinion:

It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized part, an important right -- the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less.

And then later, on pages 40-42:

Before Proposition 8, California guaranteed gays and lesbians both the incidents and the status and dignity of marriage. Proposition 8 left the incidents but took away the status and the dignity. it did so by superseding the Marriage Cases and thus endorsing the "official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationships of opposite sex couples."

The question we consider therefore is this: did the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away form same-sex couples the right to have their lifelong relationships dignified by the official status of 'marriage' and to compel the State and its officials and all others authorized to perform marriage ceremonies to substitute the label of 'domestic partnership' for their relationships?

Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.

When Judge Reinhardt mentions the "Marriage Cases" he means the seminal California Supreme Court rulings in 2004 which first recognized the legitimacy of same-sex marriage in the Golden State. Because Prop 8 was designed to take away those court-recognized rights, the 9th Circuit ruled Tuesday, the popular will expressed in 2008 had to give way to the Bill of Rights. Whatever this theory says (or doesn't say) about same-sex couples who want to get married in California in the future, it's a clear cover of protection for those couples who already are. The 9th Circuit giveth. And it taketh away, too.

The Justice

It may be only a few days, I suppose, before Prop 8's supporters will begin to prepare their arguments for the Supreme Court. There they will have to answer first to Justice Kennedy, the eternal swing vote, and the fellow who wrote the majority opinion in Romer v. Evans, a landmark 1996 legal victory for gay rights advocates. The ruling struck down a Colorado initiative that had sought by majority vote to sweep away local government protection from discrimination based upon a person's sexual orientation. Here is just a part of what Justice Kennedy thought of the effort:

It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

Then, seven years later, in 2003, Justice Kennedy wrote the majority opinion in Lawrence v. Texas, another precedent-changing case which struck down the state's sodomy law. It's difficult to go even a paragraph in Romer or Lawrence without sensing Justice Kennedy's concern for victims of discrimination based upon their sexuality. That's why Prop 8's supporters are in more trouble than they'll admit as they head toward Washington. Each side must have Kennedy in its corner to win. And he's clearly leaning in one direction.

The majority wants Justice Kennedy to see Perry as a natural successor to Romer -- in both cases popular will endorsing the limitation of rights previously afforded to what Judge Reinhardt called a "disfavored" group. Judge N. Randy Smith, in dissent, wants Justice Kennedy to distinguish Romer from Perry -- the former being about voters rolling back anti-discrimination laws and the latter being about voters defining marriage. Just wait. You'll be able to cite chapter and verse of Romer before we are through.

Between today and Prop 8's D-Day at the Supreme Court a lot of lawyers will be paid a ton of money to try to steer Justice Kennedy either toward or away from Romer. I'm sure that matters on some level, but I'm not sure it will make a difference. Right now, I believe, there are at least five votes at the Supreme Court that will recognize the validity of same-sex marriage in some form. It is even conceivable that Justice Kennedy would lead the Court beyond Romer and thus beyond where the 9th Circuit took it Tuesday. Don't laugh. Stranger things have happened.

Stealing From the D.C. Government Is Still Distressingly Common

2012-02-07T11:55:02-05:00

Any large organization is prone to theft, and the larger the sums of money, the greater the temptations to theft. (I'm told by people who ought to know that if the scale of embezzlement in the retail banking sector were generally known, people would be shocked -- the banks keep it quiet so consumers won't freak out.)

Nonetheless, DC seems especially remarkable. Shortly after I got here, a midlevel bureaucrat in DC's tax office was arrested for masterminding a ring that stole $50 million from the city over the course of 17 years. Several even higher-ranking officials have been arrested for smaller chiseling, and a city council member just resigned over a corruption investigation.

Today brings news of another scam: something north of 100 district employees, current and former, seem to have somehow collected unemployment checks while still working for the city.

But this actually represents progress, of a sort: this isn't corruption, or an organized conspiracy. It's apparently just garden-variety chiseling, of the sort that happens everywhere. It's entirely possible that they got caught simply because they worked for the city, which had relatively accessible records of when they'd actually worked:

The alleged fraud is not complicated, nor is it uncommon in unemployment insurance programs: Workers apply for checks and receive them legitimately for a time but fail to inform authorities when they go back to work.

"Some are people who come in and out of government and never stopped [receiving unemployment checks]. Some may have worked in parts of an agency where for the summer months you don't work," Mallory said. "There are no clear patterns that we can discern. It's just a matter of certifying you aren't receiving income when you are receiving income."

Of course, what allows this sort of petty malfeasance, as well as the more odious crimes, is that DC has a large bureaucracy, but very weak controls. A series of reform mayors has made inroads in this direction, and this latest crackdown is a good sign--but obviously, when City Council members may be among the beneficiaries, it's hard to move as fast as one would like.

The Atlantic's Civil War

2012-02-07T11:00:00-05:00

The Atlantic's stellar Civil War issue is online. As excited as I am about the issue, I'm much more excited about our own Yoni (Cynic) Applebaum's historical profile of the cyclorama at Gettysburg.

Because I'm a total downer, I most enjoyed the portion where the great illusion fell out of favor:

But even convincing illusions are eventually dispelled. "We once obtained permission to go behind the scenes in ... The Battle of Gettysburg," a critic later recalled. "After that the illusion was destroyed. Most of the cannon in the foreground were of galvanized iron, the thickness of a sheet of tin, and so were the soldiers and wagons. When we returned to the platform the skill of the deception seemed to us greater than ever, but we were thoroughly disillusioned." Familiarity turned the marvelous mundane, made the breathtaking banal.

The day of the cyclorama soon passed. In Sioux City, Iowa, a twister lifted the roof off the cyclorama building and destroyed the artwork. Another canvas was sliced into pieces, and sewn together into a tent for a restaurant. Most of the massive paintings, though, met more prosaic ends. They fell victim to leaky roofs and sagging supports, burned, or were left to decompose. By 1888, the proprietors of the Boston Cyclorama decided that Gettysburg had exhausted its appeal, and commissioned General Custer's Last Fight to replace it. More than a dozen workers labored for two weeks to remove the massive canvas; they spent at least a day just rolling it up. It toured for a few years before slipping from public view.

In 1901, the astonished Boston Globe discovered the painting in a crate on a vacant lot, topped by an improvised roof, "going to rack and ruin." The story of a painting that once cost $200,000 rotting in a box, entombed in "a sort of mausoleum of greatness," captured national attention but provoked no efforts at salvage. The Boston Cyclorama Company dissolved three years later. And there the orphaned painting sat.

Of course, the story doesn't end there.

Is the UN Using Bike Paths to Achieve World Domination?

2012-02-07T09:38:00-05:00

How a sustainability initiative became fodder for right-wing conspiracy theories.

Reuters

Did you know that the United Nations is in cahoots with local land-use planners all over the country to rob you and your neighbors of your God-given right to your gun, your land, your water, your food, and your liberty? Did you know that there is a UN document, titled Agenda 21, that sets out the plan and that Republican presidential candidate Newt Gingrich already has declared that, if he were to become president, he would cut funding for any activity related to that U.N directive? Glenn Beck knows all about it, naturally, and so does the Tea Party.

I watch NBC's Parks and Recreation and I take my dog along a walking path every day. But I knew nothing about Agenda 21 until I read Jonathan Thompson's jaw-dropping piece, "Anatomy of a Conspiracy Theory," in the current edition of High Country News, a publication that focuses upon stories about the West. That was Friday. By Saturday morning, by coincidence, my nascent exposure to the not-so-secret U.N plot was enhanced by The New York Times, which published a story titled "Activists Fight Green Project, Citing U.N Plot."

From the Times' story by Leslie Kaufman and Kate Zernike:

In Maine, the Tea Party-backed Republican governor canceled a project to ease congestion along the Route 1 corridor after protesters complained it was part of the United Nations plot. Similar opposition helped doom a high-speed train line in Florida. And more than a dozen cities, towns, and counties, under new pressure, have cut off financing for a program that offers expertise on how to measure and cut carbon emissions.

There is nothing new about local land use efforts being manipulated or sabotaged by politics -- that's been a part of the American scene since George Washington was a child. There isn't a city or town or county in this country that hasn't been afflicted at one time or another by bickering over zoning and development. What's new here is that the successful arguments being deployed against new, "sustainable" land uses are: 1) detached from the merits of the plans themselves, and 2) beyond the realm of mainstream political thought.

Local land use plans that emphasize "sustainable" growth aren't just evaluated by their impact on political or economic forces. The traditional arguments, which weighed local plans for their impact on one local group or another, have grown faint. Now, the loudest argument is the most bizarre. Such plans are considered per se unacceptable because they are seen as part of a vast international conspiracy, orchestrated by the United Nations, which would ultimately result in international domination over the way Americans both live and breathe.

Agenda 21 and Its Agents

According to the United Nations, Agenda 21 "is a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations System, Governments, and Major Groups in every area in which human impacts on the environment." It is the result of a June 1992 conference in Rio de Janeiro, called the Earth Summit, and it was originally adopted by 178 countries, including the United States. The preamble to the document makes plain what its signatory nations thought was at stake 20 years ago:

Humanity stands at a defining moment in history. We are confronted with a perpetuation of disparities between and within nations, a worsening of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which we depend for our well-being. However, integration of environment and development concerns and greater attention to them will lead to the fulfillment of basic needs, improved living standards for all, better protected and managed ecosystems and a safer, more prosperous future. No nation can achieve this on its own; but together we can -- in a global partnership for sustainable development.

Ten years later, in September 2002, in Johannesburg, South Africa, at the World Summit for Sustainable Development, then-Secretary of State Colin Powell reminded the world of President George W. Bush's commitment to "the great moral challenge" of including the world's poor in "the expanding circle of development." Then, less than one year following the terror attacks on America, and less than nine months before America went to war in Iraq, Secretary Powell said this:

Here in Johannesburg, we have recommitted ourselves to achieving, by 2015, the development goals set forth in the Millennium Declaration. We further dedicated ourselves to improve sanitation, rejuvenate fisheries, promote biodiversity, and encourage renewable energy. We have reaffirmed the principle that sound economic management, investment in people, and responsible stewardship of our environment are crucial for development.

The United States is taking action to meet environmental challenges, including global climate change, not just rhetoric. We are committed to a multi-billion dollar program to develop and deploy advanced technologies to mitigate greenhouse gas emissions.

It's awfully dicey, even by Beckinsian standards, to tag both Bush and Powell as part of a worldwide plot to deprive Americans of their constitutional rights to rape the land, foul the air, dirty the water, and sprawl development wherever the hell they feel like it. You might even call it an inconvenient truth. So, instead, Agenda 21 theorists have seemed to focus most of their ire upon a group far less likely to score well on one of Frank Luntz's polls: the International Council for Local Environmental Initiatives (or ICLEI for short).

The ICLEI describes itself, on its website, as:

an association of over 1,220 local government Members who are committed to sustainable development. Our Members come from 70 different countries and represent more than 569,885,000 people. ICLEI is an international association of local governments as well as national and regional local government organizations who have made a commitment to sustainable development.

ICLEI provides technical consulting, training, and information services to build capacity, share knowledge, and support local government in the implementation of sustainable development at the local level. Our basic premise is that locally designed initiatives can provide an effective and cost-efficient way to achieve local, national, and global sustainability objectives.

In the United States, hundreds of cities and countries are part of the ICLEI, from Abingdon, Virginia, to Yountville, California. Jurisdictions from Maine to Florida, in states that are both red and blue, are represented. If the conspiracy theory is true, it's one helluva conspiracy, involving ten of thousands of local officials from all parts of the country, all empaneled and aligned to foist the UN's sinister version of "sustainable growth" upon American communities. Forget Big Sky Country. You've now entered Big Lie Country.

You would think that the Tea Party, with its disdain for large government, would be delighted with the ICLEI's emphasis on "locally designed initiatives." No. To the "Agender" crowd, as they are called, the ICLEI is the local instrument by which the UN forces its "sustainability" agenda upon the U.S. It is the link that binds foreign power to a remote county in Colorado. Thompson reports in his piece that at least 16 American communities have opted out of ICLEI recently because of negative perceptions about Agenda 21.

Some of those perceptions no doubt have been formed by Glenn Beck, the former Fox News star, who said last June that "sustainable development is just a really nice way of saying centralized control over all human life on earth." For a change, he was being general. Other Agenders have been more specific in describing the impact of Agenda 21. In their view, every single human function on Earth is now and forevermore designed to be controlled by the UN initiative. Think about that when you are next rolling down a bike path.

The Colorado Plan

Using Thompson's work as a guide, here's a closer look at what happened over the past few years in and to La Plata County, Colorado. It's the story of how a local land-use plan, based upon the concept of sustainable development, was undermined and then eventually destroyed by this particular strain of conspiracy theory. It's a tale of the waste of taxpayer money, a story that chronicles how and why smart professionals don't want to be in government, and it's a reminder of how much damage the Tea Party has wrought upon even local government.

Here's the lead paragraph from the High Country News piece (the story is not yet available online):

In November, La Plata County Commissioner Kellie Hotter called local land-use planning "a blood sport." She wasn't kidding. Since last spring, as this southwestern Colorado county considered a new comprehensive land-use plan, carnage has piled up. By mid-December, casualties included a fired planning commissioner, a resigned county planning director and the plan itself -- a 400-page document that took two years, $750,000 and 137 public meetings to produce.

Who was responsible for the plan? "A diverse, 17-member working group," Thompson tells us, which last spring came up with "an ambitious vision:

to rein in sprawl, encourage bicycling and public transportation, protect agriculture and promote sustainability. Respect for private-property rights and conventional energy development were also emphasized, and the draft was sent to the planning commission, an appointed body that in Colorado has the final say on county comprehensive plans.

The plan contained no regulations, Thompson reports, but nonetheless there was trouble from the beginning. In the Colorado House of Representatives, for example, La Plata County is newly represented by J. Paul Brown, a Republican sheep rancher, who, as of last April anyway, was convinced that the UN was out for his land. "If you are looking for a fight," Brown reportedly proclaimed at an early public meeting over the plan, "keep that crap up!" That's what "sustainable growth" is to many ranchers, you see: just a load of crap.

Soon, the Agenders were on the case. To them, the La Plata plan was not some organic document that had been drafted locally by 17 "diverse" working group members. It was not a local solution to current and future local land use problems. To them, the La Plata plan was a command from on high, from the UN, representing an invasion of local government by foreign power. This was news to La Plata County planning director Erick Aune, Thompson reports. Aune said he had never heard of Agenda 21 until last summer -- when it was too late.

The La Plata plan died last December. The next day, Aune resigned. When he did, one of the County Commissioners, Wally White, said that Aune "received little to no support from my board or the vocal minority opposing the comp plan. He's a true professional, and I wish him well." The Agenders doesn't just seek to halt land-use plans because they are UN-tainted. They also end up steering professionals like Aune away from local government at a time when local government needs all the professionals it can find.

Speaking of Conspiracies

I'm not here to defend the La Plata plan. It's certainly conceivable that it simply wasn't good enough, on its merits, to be worthy of implementation. Or maybe the good folks of La Plata County reckoned that they were just not quite ready yet for a "sustainable" development plan. That's an argument that is taking place all over the world these days. And it is an argument that should take place, on the merits, as Americans are pushed to engage in "responsible stewardship" of the environment, to use Colin Powell's phrase from a decade ago.

But that's not the fight that was just fought in Colorado. The La Plata plan was scuttled instead because of pressure from Agenders, in and out of government, whose theory whistles to every dog around. Agenda 21 is endorsed by the United Nations, which automatically makes it suspect to these folks. It's frequently implemented by an international group of land-use planners, which automatically renders it anti-American. It occasionally intersects with parts of the Obama Administration's policies, which automatically renders it illegitimate.

Like all grand conspiracy theories, the UN plot for world domination, as expressed through "sustainable development" initiatives, links together all the disparate themes the theorist wants to see linked. George Soros is in on the plot. So is the Occupy Movement. So is President Obama. So are the Clintons. So, the Agenders say, is Queen Elizabeth II herself. And don't forget the Rothschilds! The only people missing from the equation are Scully, Mulder, and the Smoking Man.

And, of course, none of this has anything to do with the only relevant question that ought to be asked about any local land-use plan: Does it make sense for the community, now and in the future, to implement the plan's recommendations? It is remarkable -- and a vivid and dour reflection of the political tenor of our time -- that opponents of "sustainable growth" are able to succeed all over the country in scuttling such plans without having to make a coherent, substantive argument against the actual initiatives contemplated by the plans.

That's not a cheap trick. After all, it cost La Plata County $750,000 that it couldn't afford. But it is quite the trick, indeed. You scare people already suspicious of the government into thinking that the black helicopters are on their way, that Soros and Hillary are in on it, and then you ask those same people to oppose land-use planning which is designed to cut back on pollution, or the dangerous misuse of land, or just plain old-fashioned over-development. Who wins? As it is with conspiracies large and small just follow the money and you'll find out.

I Was a Teenage Black Panther

2012-02-07T08:30:06-05:00

When Jamal Joseph was 16, he was was one of the "Panther 21" -- a group arrested for an alleged plot to blow up the New York Botanical Gardens and several department stores. Here, he recalls the events that drew him into the organization's fold.

Bill Ingraham/Associated Press

I walked into a Panther office in Brooklyn in September 1968. Dr. King had been assassinated in April of that year. I'd gone down to 125th Street in Harlem that night, where protesters swarmed the streets, setting trash can fires and hurling bricks at white-owned businesses. Some ran into the stores and started taking clothes, appliances, and whatever else they could carry.

Not everyone looted, but it was enough for the police to start making arrests. A cop grabbed me and threw me against the wall, but before he could handcuff me, a group of rioters across the street turned a police car over. The cop told me to stay put and ran toward the rioters.

I was scared, but I wasn't stupid. My heart pounded as I ran into a clothing store and found a back door that led to an alley. When I came up against a wooden fence, the cops caught up with me. "Halt," they yelled. In my mind I froze and put my hands in the air, but my body kept hauling ass. I grabbed the fence and scurried over the top. Two shots rang out. One splintered the wood on the fence. This gave me the adrenaline push I needed to flip over the fence, pick myself up off the ground, and scramble out of the alley.

"You have guns?" the cop asked, a tinge of fear in his voice.

When I turned out on the street, I almost collided with a group of 20 or so black men in leather coats and army fatigue jackets, wearing Afros and berets, standing on the corner in a military-like formation. "Stop running, young brother," one of the men with a beard and tinted glasses said. "Don't give these pigs an excuse to gun you down." I doubled over, trying to catch my breath. I didn't know this man, but his voice sounded like a life raft of confidence in a sea of chaos.

Moments later, two cops ran around the corner. They stopped in their tracks when they saw the militant men. The men closed ranks around me. "What are you doing here?" one of the cops demanded. "Move aside."

The black man with the tinted glasses didn't flinch. "We're exercising our constitutional right to free assembly. Making sure no innocent people get killed out here tonight."

"You have guns?" the cop asked, a tinge of fear in his voice.

"That's what you said," the man with tinted glasses replied. "I said we're exercising our constitutional rights." The cops took in the size and discipline of the group for a moment and walked away.

By this time, I'd caught my breath, but I was speechless from what I had just seen: black men standing down white cops. "Go straight home, young brother," the man with the tinted glasses said. "The pigs are looking for any excuse to murder black folks tonight."

When I entered the apartment, my grandmother, Noonie, was sitting on the couch watching images of Dr. King on TV. Tears fell from her eyes. Noonie had been born in 1898 in a poor and segregated section of North Carolina. She told me how white men in sheets lynched people they considered to be "uppity niggers." One such uppity nigger was Noonie's favorite uncle, who'd been beaten, lynched, and burned for striking a white man who had spit tobacco in his face. Despite all this, Noonie was a follower of Dr. King and believed that love and peaceful protest were the tools for equality. I sat next to her and put my arm around her, and we watched the TV reports of the assassination and the riots.

By July 1968, the country was still smoldering, but in the hills of Camp Minisink, in upstate New York, kids and teens from Harlem were just happy to enjoy swimming in a lake, miles from the melting asphalt of their home. Camp Minisink was the oldest African American camp in New York State. I had a job there as a junior counselor. That summer, I hung out with two older boys from my neighborhood, James, 19, and Eric, 17. When they weren't on duty as counselors, James and Eric swapped their camp T-shirts for African dashikis and played Miles Davis and Malcolm X records. A red lightbulb that gave their cabin the feel of being a black militant speakeasy in the woods.

At the end of the summer, H. Rap Brown came to speak at a youth conference at Camp Minisink. He was often in the news as a militant leader who dismissed integration and stood for black nationalism. I was blown away by his whole style: the 'fro; the shades; the finger that jabbed the air like a Zulu spear when he spoke, slicing up white America. Wow, man, Rap could rap.

"You wear white to weddings, black to funerals. Angel food cake is white cake. Devil's food cake is black. White magic is good. Black magic is evil. In cowboy movies the good guys wear the white hats and the bad guys wear black. Even Santa Claus. I mean, tell me how in the hell a fat, camel-breath redneck honkie can slide down a black chimney and still come out white? I'm telling you, you been brainwashed." The crowd of three hundred high school and college students attending the conference cheered Rap Brown like a rock star.

One night back home, while sitting on the couch watching Noonie's old black-and-white TV, I saw a news report on the Black Panther Party. California was about to make it illegal to carry firearms, and the Panthers burst into the California State Legislature, calling the politicians racist. The old white men I saw on the TV screen looked scared to death. Since the guns were legal, the only thing the police could do was eject the Panthers from the legislative chambers.

Look at those dudes, I thought. They're crazy. They got black leather coats and berets, carrying guns, scaring white people, reading communist books. They're crazy. I immediately wanted to join. Now all I had to do was find out where the Black Panthers were in New York.

Story continues below slideshow

Like a plantation slave seeking passage to freedom on the Underground Railroad, I put out the word that I was looking to hook up with the Panthers. You didn't choose the Panthers, I was told in hushed tones. They chose you. So I walked around acting extra cool and extra militant, hoping that some Panther secret agent would tap me on the shoulder.

One Saturday, James and Eric eased up next to me in the park while I was waiting my turn to play basketball.

"Dude's sayin' you runnin' around lookin' for the Panthers," Eric said.

"Yeah, man," I replied.

"Well, first of all be cool with that shit. You can't let everybody know your business." Then he leaned closer. "The Panthers have an office in Brooklyn. We're rollin' out there tomorrow. Are you down?"

"I'm down," I replied too loudly.

That night I could barely sleep imagining what it would be like to walk into the Panther headquarters. Would I be blindfolded and taken to some secret chamber to be initiated? Maybe I'd get put on a small airplane and be parachuted into a hidden training camp somewhere in Africa.

"Boy, you better get up. Do you know what time it is?"

I opened my eyes and saw Noonie standing over me. I had overslept. "Sorry, ma'am," I said while running to the bathroom.

Noonie was sitting at the kitchen table reading her Bible in the morning sunlight. "Where you going?" she asked.

"To school," I answered.

"Just like that? Without saying good-bye?" I walked over to Noonie and kissed her on the cheek. As I pulled the apartment door shut behind me, I heard Noonie's footsteps. Would she yank the door open and call me back? I paused, then heard her lock the door. I'd made it!

James and Eric flanked me as we sat on the subway train. Brooklyn was an hour's ride from our stop in the Bronx, plenty of time for doubt and apprehension to build.

"You sure you ready for this?" James grilled. "Panthers don't play."

"I'm ready," I replied.

"You still use your slave name, 'Eddie.' My name is Rhaheem now."

Eric nodded. "And my name is Sabu. What's your black name?"

"I don't have one," I said, feeling like a total sap. "Can you give me one?"

"Let me see," James said, closing his eyes in deep meditation. "Yeah. We're going to call you Unbutu Usa Jamal. It means he who comes together in the spirit of blackness."

I would find out later that James was pulling syllables and meanings out of the air, but at that moment, I had been reborn and renamed. I smiled to myself as we rode. I was almost a Panther -- and we hadn't even gotten to headquarters yet.

Adapted from Jamal Joseph's Panther Baby (Algonquin Books, 2012).

Eddie Long Is Sorry

2012-02-06T15:00:00-05:00

The Georgia mega-preacher apologizes for having himself crowned a "king" by a fake rabbi:

"The ceremony was not my suggestion, nor was it my intent, to participate in any ritual that is offensive in any manner to the Jewish community, or any group. Furthermore, I sincerely denounce any action that depicts me as a King, for I am merely just a servant of the Lord," Long wrote in a letter dated Saturday.

The letter was addressed to Bill Nigut, southeast regional director of the Anti-Defamation League -- a Jewish group that fights anti-Semitism.

"While I believe that Rabbi Ralph Messer has good intentions during his message at New Birth, I understand that the ceremony he performed on Sunday, January 29th, caused harm to the Jewish community, for which I am deeply sorry," Long wrote.

One thing I missed in my initial reaction to this was how offensive the whole spectacle must have been for devout and believing Jews. I live in a world of agnostics and atheists. The few people I know who are religious (with the obvious exception of family) are not evangelical and have no interest in my soul. Thus the ceremony struck me, originally, as more ridiculous--in the most literal sense--than offensive. It was only after a few private conversations that I realized I was, like, sort of missing something among my guffaws.

When Richard Holbrooke Met Malcolm X

2012-02-06T11:00:00-05:00

Here's a good piece of lost history from All Things Considered. In 1961 Malcolm X came to Brown University at the invitation of the student newspaper, edited by a then 19-year old Richard Holbrooke, and spoke to the campus audience. Ostensibly, Malcolm was supposed to debate a representative of the NAACP, which had spent the previous year pressuring other schools into not allowing Malcolm a platform. At the last minute, the NAACP rep declined to show.

That was probably smart. By then, Malcolm had established a reputation as fierce debater. But just to be sure The Nation had stacked the deck by purchasing 250 tickets for members of the Nation of Islam. And so Malcolm held forth alone, and then afterward retired to the student lounge to field questions. Brown student Malcolm Burnley recently found a copy of the speech, which had been lost to time. while researching a project.

I think it's easy to forget how much Malcolm X actually enjoyed these campus visits, not simply as someone spreading Nation dogma, but as a person who had never enjoyed the constant mental stimulation of a college campus. There are many rewards along the autodidact's road -- but those who hail from a certain socio-economic background often find themselves without fellow travelers and respected interlocutors. My Pops often says that one of the best things about the Black Panthers was that it was the first time in his life he'd been surrounded by thinking, literate, politically-minded young people.

A History of Violence

2012-02-06T10:00:00-05:00

The Times did a good piece this weekend on the families of murderers and how they so often live in the shame of their loved ones. I thought the video, below, which looks at the family of convicted killer Ronnie Lee Gardner, was most affecting at showing how easy it is to cross the line into criminality once violence and abuse becomes part of a family's culture.

By the end of the video, you see the children grappling with their own issues around violence, and their own encounters with the police, and the haunting sense that there is, perhaps, something in their blood.

Occupying the 'Wall Street Journal'

2012-02-06T09:36:19-05:00

The protest movement is appropriating the names and logos of corporate-owned publications. Is it copyright infringement or satire?

Courtesy of Scott Johnson

Scott Johnson had published only two issues of his Occupied Oakland Tribune when he received a cease and desist order from The Oakland Tribune's parent company, the Bay Area News Group.

"The first thing I thought was, Is this real? The whole thing just kind of blew me away," he says.

The Oakland Tribune contends that Johnson's use of their name, albeit "Occupied," and an altered Tribune tower logo are infringements on the company's trademark. In their letter and The Oakland Tribune's own subsequent coverage, the Bay Area News Group's lawyer Andrew Huntington states that Johnson must stop publication and hand over his occupiedoaktrib.org URL immediately or face a lawsuit.

Huntington, who did not respond for comment, said that Occupied Oakland Tribune's name and logo were "a problem," though the Bay Area News Group was considering dissolving the Oakland Tribune until late 2011 amidst a round of heavy cutbacks.

"As soon as I had any time to think about it, it became more and more clear that we can win this thing," says Johnson. "I never wanted to give in on it. I never wanted to roll over and give up."

As one Twitter commenter quipped, after donating $100 to Johnson's Kickstarter campaign to fund the paper, "BANG is the sound you hear when you shoot yourself in the foot."

From the Occupied Los Angeles Times to the Occupied Washington Post, more than a dozen "Occupied" branded independent newspapers have sprouted since that ever-tented movement took root across America last fall. Many of them take the names of the biggest corporate-owned newspapers in their hometowns. Some, like the Occupied Boston Globe, opted to change their names (they are now the Boston Occupier). But most have stood their ground.

"I think it is great how it became a meme so quickly," says Arun Gupta, one of the founders of The Occupied Wall Street Journal. "Like many other aspects of Occupy Wall Street, this idea just spread rapidly across the country." The Occupied Wall Street Journal, a project originally put together by Gupta and a collective of other Occupy Wall Street activists, raised more than $75,000 in a Kickstarter campaign.

"It's direct action -- another form of occupying," says Gupta of the newspapers -- physical protest objects, and historic artifacts. "They make the movement real in a way digital media never can."

To Gupta's knowledge, The Occupied Wall Street Journal hasn't received any complaint -- or praise -- from the original Wall Street Journal. "In fact, all the media reports would actually say the WSJ declined to comment," says Gupta.

The Occupied Chicago Tribune has had a less easy time of it.

"The Chicago Tribune might not be pleased by our use of the name, but right now we have no plans to change it," says Joe Macare, one of the journalists and publishers with The Occupied Chicago Tribune. "We're confident that no one could confuse the two, but just in case, we want to stress that we don't have any association with the billion-dollar Tribune Company corporation or their reporting for the 1%. The Occupied Chicago Tribune name clearly constitutes political speech and satire, protected by the First Amendment."

The Occupied Chicago Tribune has not received a formal cease and desist order from the Chicago Tribune -- at least not yet. A source with knowledge of to the Occupied Chicago Tribune's legal situation who preferred not to be identified said the Chicago Tribune's lawyer had pushed hard in the company's demands in informal negotiations. "Occupied Chicago Tribune said okay, we'll use 'Chicago's Occupied Tribune.' The lawyer objected. So they said okay, we'll change it to 'Occupied Tribune,' and the lawyer objected. They said okay, we'll change it to 'Occupied Chicago Times.' The lawyer objected again."

"Then he allegedly said something like, 'You cannot have anything that has a T in the name.' And that's when finally it had reached such a point of absurdity that they decided to fight back."

Corynne McSherry, attorney and Intellectual Property advisor to the Electronic Frontier Foundation, says attempts at quashing perceived trademark infringement often fail on both legal and public relations grounds -- and even backfire. "They call more attention to the kind of satire that's happening in the first place," says McSherry.

The Oakland and Chicago Tribunes say they are attempting to protect their trademarks from infringement, for which the basic test is "likelihood of confusion" in the marketplace. These papers must prove that their "spinoffs," as the papers call them, used their trademarks "in connection with the sale, offering for sale, distribution or advertising of goods and services" in a way that is likely to confuse potential consumers.

That confusion relies on another set of tests: the strength of the original trademark and similarity of its alleged copy, the proximity of the products in distribution, similarity of marketing, evidence of actual consumer confusion, and the Occupied newspapers' actual original intent. The fair use of trademark infringement for the purposes of criticism or comment, including parody, relies on individual case analysis by the courts as opposed to "bright-line rules," according to the Copyright and Trademark Law.

Many trademark holders pursue cease and desist letters in all matters of potential trademark infringement less as a matter of just cause against the accused infringer, but in order to bolster their case against possible actual future infringement by a possible actual future fake newspaper.

"But it doesn't really accomplish that much -- especially for a newspaper," says McSherry. "Newspapers should be committed to fair use and free expression, and it really doesn't look right if they're trying to shut that down." McSherry defended the Yes Men, who created fake copies of The New York Times and distributed them all over New York City. The Times declined to pursue legal action.

"This is why I say it's political," says Gupta. "Occupy Wall Street had such a huge kind of ideological and political presence that to go after them this way actually validates everything the movement is talking about: that the 1% is trying to use their power and wealth against the 99%."

"Because they're on such weak legal ground, to bring suit would come across as a case of bullying. They have nothing to gain from it," says Gupta. "I think, though, when you get into other cities, people freak out when they're being approached by lawyers with intimations of legal action."

While The Occupied Chicago Tribune has remained relatively quiet about their legal problems, Scott Johnson and The Occupied Oakland Tribune are taking a different sort of tack -- embracing the First Amendment for all its potential protections, as they did when they printed their first issue back in November.

"I am dealing with the lesser tribune," Johnson concedes. "As an institution, the Chicago Tribune is a much more serious, powerful institution, and better connected in Chicago. I don't think people are really scared of The Oakland Tribune."

But of Oakland's Occupy? They may well be.

"The fact that I'm part of Occupy Oakland gives me a lot of confidence," says Johnson. "There are people who have my back. In a way, I'm representing them. I don't want to let Occupy Oakland down. We're Occupy Oakland! We don't just get pushed around. Maybe [BANG] isn't reading their own paper about Occupy Oakland, because we tend to not just stop when someone in power tells us to stop, if we think what we're doing is right."

"There was just an assumption that there was no way we could be doing anything wrong. We're just trying to provide a service to people," says Johnson.

The Occupied Oakland Tribune plans a multi-pronged legal defense, including a stance that their paper and The Oakland Tribune are significantly different enough in cost, content and appearance so as not to confuse consumers. One of the strongest legal arguments Occupied newspapers might have in their defense is "nominative fair use" and "parody," protecting the papers for their criticism and comment. And if all else fails: first amendment protection of political speech.

In the meantime, Oakland Tribune reporters continue to reach out to Johnson for comment on Occupy actions. At best, he's amused. "I don't know if the right hand knows what the left hand is doing -- or cares," says Johnson.

"As good a job as the staff may be trying to do, their corporate side is hijacking them."

The Torture Memos, 10 Years Later

2012-02-06T08:30:24-05:00

Our journey toward Abu Ghraib began in earnest with a single document -- written and signed without the knowledge of the American people

Reuters

On February 7, 2002 -- ten years ago to the day, tomorrow -- President George W. Bush signed a brief memorandum titled "Humane Treatment of Taliban and al Qaeda Detainees." The caption was a cruel irony, an Orwellian bit of business, because what the memo authorized and directed was the formal abandonment of America's commitment to key provisions of the Geneva Convention. This was the day, a milestone on the road to Abu Ghraib: that marked our descent into torture -- the day, many would still say, that we lost part of our soul.

Drafted by men like John Yoo, and pushed along by White House counsel Alberto Gonzales, the February 7 memo was sent to all of the key players of the Bush Administration involved in the early days of the War on Terror. All the architects and functionaries who would play a role in one of the darker moments in American legal history were in on it. Vice President Dick Cheney. Attorney General John Aschroft. Secretary of State Donald Rumsfeld. CIA Director George Tenet. David Addington. They all got the note. And then they acted upon it.

When we talk today of the "torture memos," most of us think about the later memoranda, like the infamous "Bybee Memo" of August 1, 2002, which authorized the use of torture against terror law detainees. But those later pronouncements of policy, in one way or another, were all based upon the perversion of law and logic contained in the February 7 memo. Once America crossed the line 10 years ago, the memoranda that followed, to a large extent, were merely evidence of the grinding gears of bureaucracy trying to justify itself.

There will likely be other opportunities in 2012 to look back at some of those other memos. Perhaps Jay S. Bybee himself, inexplicably rewarded for his role in the scandal by getting a federal judgeship, will say something. Let's leave that for the dog days of August. Today is a day instead to look at one of the first of these odious documents. It is a day to note how simple and easy it was, it still is, for political leadership to make monumental decisions on our behalf without really telling us -- or by simply telling us something that isn't true.

This is not a nostalgic indictment of the Bush Administration's approach to the detainees. Ten years later, the topic is still timely. Right now, another administration is justifying another extraordinary departure from American legal policy-- the assassination of U.S. citizens abroad, with drone strikes, in a secret manner, without affording those citizens any due process. Trust us, the Bush folks said, when it comes to treatment of detainees. Trust us, the Obama White House says, now when it comes to which citizens we are entitled to kill without trial.

Before the Memo

On September 18, 2001, just one week after the terror attacks upon America, President Bush signed the Authorization for use of Military Force. He did this a mere four days after Congress had passed the extraordinary measure by overwhelming margins (98-0 in the Senate, 420-1 in the House of Representatives). The Congressional authorization was essentially a blank check to the executive branch to go after the people who had taken down the Twin Towers. The U.S. now was authorized "to use all necessary and appropriate force" against them.

This language -- with its obvious and ominous international design -- immediately raised the eyebrows of the folks at the International Committee of the Red Cross. They smelled a rat. And so they shared their concerns with the State Department and then they went to the United Nations. On October 11, 2001, exactly one month after the attacks, a U.N. High Commissioner issued this brief letter reminding his host country of the "non-derogable nature" of its obligation to the Geneva Convention against Torture. The UN wrote:

The Committee against Torture is confident that whatever responses to the threat of international terrorism are adopted by State parties, such responses will be in conformity with the obligations undertaken by them in ratifying the Convention against Torture.

In conformity with the obligations undertaken. By early January 2002, lawyers for the White House and the Defense Department had ginned up an argument they reckoned they could sell with a reasonably straight face, both to their superiors in the Bush Administration and then, if need be, to the international community or a future court of law. We only have to be in conformity with the obligations undertaken by the Geneva Convention, they argued, if we have obligations under the Convention, and we only have those obligations if and when we say so.

It is at this point that Alberto Gonzales played another of his dubious roles in U.S. history. As White House counsel, he first pitched the argument to his old Texas pal, the president, who promptly bought it. No surprise. Even back then, the two had a long history of enabling one another's legal malfeasance. However, Gonzales got push-back from Secretary of State Colin Powell, the decorated war hero, who argued that U.S. soldiers would pay the ultimate price for their government's decision to blow off the Geneva Convention on Prisoners of War.

This prompted Gonzales to write a memo, on January 25, 2002, that is still chilling to read. In it, he argued that the War on Terror required new interpretations of old rules. He wrote: "This new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges." By making the War on Terror sound like an episode of Hogan's Heroes, in other words, Gonzales convinced President Bush to see things his way.

What the February 7 Memo Said

In retrospect, It's hard to know what is more offensive about the memo -- the policy it adopted or the language it employed in doing so. From its title on down, the two-page document sought to reassure future readers (and judges and jurors) that the administration had found a lawful balance between the mandates of the Geneva Convention on prisoners of war and the mandate government officials wished to deploy in prosecuting the War on Terror. Whatever else it was, the memo was dishonest by its own terms, a mess of inherent contradiction.

Echoing the Gonzales memo two weeks earlier, the February 7 memo began by arguing briefly that the United States was not bound by its obligations under the Geneva Convention because the international treaty applied only to "High Contracting Parties" and not stateless entities like Al Qaeda; because it contemplated "the existence of 'regular' armed forces" unlike the quasi-criminal/quasi-terrorist plotters of 9/11; and because "the new paradigm" of the War on Terror required "new thinking" about America's commitment to international norms.

So President Bush signed a document which stated:

"... none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere through the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva."

... common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to 'armed conflict not of an international character."

... I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al Qaeda, al Qaeda detainees also do not qualify as prisoners of war.

... I hereby reaffirm the order... requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

After turning the CIA and others agencies loose upon terror suspects, after unmooring the United States from its generations-long commitment to the Geneva Convention, after offering the legal and political authority for what would come to be called, euphemistically, "enhanced interrogation," President Bush signed a memo that offered this:

Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva (my emphasis).

Poof. Just like that, with no judicial review, meaningful Congressional oversight, or public scrutiny, and based significantly upon the recommendations of a man, Alberto Gonzales, who is among the most hapless in the history of American governance, the United States became an outlier to the Geneva Convention, an international scofflaw. Within days of this memo, reports Larry Siems in his epic book, The Torture Report, American officials were training military interrogators on how to "exploit" terror law detainees by torturing them.

The Aftermath

We will never know how Americans would have reacted had they been told, in real time, what monumental policy change President Bush was making on their behalf on February 7, 2002. As near as I can tell, the document was declassified only in June 2004, after much of the memo's impact had become known to the world. In hindsight, it's comforting to fantasize that the American people, or at least enough federal lawmakers and judges among them, would have stood up and said no to this perversion of law -- and of the rule of law.
.
Coming less than five months after the terror attacks, however, it's more likely that the "new thinking" contained in the February 7 memo would have been wildly cheered by an America that is, even 10 years later, churned up with anger over 9/11. We shouldn't fool ourselves on this grim anniversary, or throughout this coming year of dubious anniversaries of the War on Terror, into thinking that a new era is here. In many ways, from the Guantanamo detainees on upward, we are still too blind to see, or honestly acknowledge, the damage we've done.

The February 7, 2002, memo begat the mistreatment of Iraqi prisoners at Baghdad's Abu Ghraib -- a disaster for America's image in the world (and particularly the Muslim world). The memo begat the torture of terror suspects whose subsequent testimony, far from being more reliable, instead bogged down potential prosecutions of dozens of the detainees, in either civilian or military court. The detainee facility at Gitmo is still open today, you could argue, as a direct and proximate cause of the memo 10 years ago.

The directive brought about a few lawsuits against its drafters -- a possibility, we now know, that was definitely on their minds back then. The torture memos were odious instruments of policy, sure, but they were also CYA memos, perhaps the most significant CYA memos in American history. And ten years later, we still don't fully know what we don't know, to use a phrase from back in the day, because many vital documents are still classified. Let's all come back here in 10 years, or in 20, or 30, and see how the view has changed.

The Anniversary

None of this breaks new ground. Many scholars, much smarter than I am, have chronicled the torture memos and their impact upon American law, politics, diplomacy, and morality. Nor do I suggest that that February 7, 2002, is a date every person interested in this topic ought to regard as the granddaddy of the torture memos. The August 2002 memos, which expressly justified the "enhanced interrogation" methods, are also a pivotal point. But this isn't a race or a contest. And there are plenty of disconcerting anniversaries to go around this year.

As a nation, we should commemorate this anniversary not only because we should always strive to hold ourselves responsible for our mistakes. We should also mark the day because it may help us muster the courage today to ask the right questions of the Obama White House about its extraordinary drone program. The executive branch says, without a full public explanation, that it may lawfully and unilaterally judge an American citizen abroad guilty of terrorism and then shower that citizen with a missile from the sky without indictment or trial.

Surely this expression of presidential power, exercised already in the case of Anwar al-Awlaki, warrants a closer look by the other branches of government. Last year, for example, a federal trial judge ruled that he while he was intrigued by claims from al-Awlaki's father that the American government had unjustifiably murdered his son, federal law precluded him from doing anything about it. A year earlier, the same judge had ruled that the same father had no right to challenge the allegations against his son. Congress couldn't care less.

Yet we cannot even see the legal memo(s) upon which the drone program is based, much less evaluate the documents for their loyalty to the Constitution and to the rule of law. The ACLU sued the feds last week for such access under the Freedom of Information Act. Good luck with that. My questions today are more specific. Why hasn't Congress pushed the administration to justify itself? Why haven't the courts yet embraced litigation that would shed light? The answer, 10 years later, is depressing: we are still too blind, too blind to see.

The Great Illusion of Gettysburg

2012-02-05T20:19:27-05:00

How a re-creation of its most famous battle helped erase the meaning of the Civil War

Paul Philippoteaux/National Park Service

"No person should die without seeing this cyclorama," declared a Boston man in 1885. "It's a duty they owe to their country." Paul Philippoteaux's lifelike depiction of the Battle of Gettysburg was much more than a painting. It re-created the battlefield with such painstaking fidelity, and created an illusion so enveloping, that many visitors felt as if they were actually there.

For all its verisimilitude, though, the painting failed to capture the deeper truths of the Civil War. It showed the two armies in lavish detail, but not the clash of ideals that impelled them onto the battlefield. Its stunning rendition of a battle utterly divorced from context appealed to a nation as eager to remember the valor of those who fought as it was to forget the purpose of their fight. Its version of the conflict proved so alluring, in fact, that it changed the way America remembered the Civil War.

Also See

A Special Commemorative Issue of The Atlantic

Cyloramas -- paintings wrapped around the interior of a rotunda, their foregrounds filled with props to create an impression of depth -- were a familiar sight in Europe throughout the 19th century. Philippoteaux, a French artist, had already painted a number of European battles when he was hired by a consortium of Chicago investors to apply his magic to Gettysburg. He spent months researching the clash and interviewing survivors, and even commissioned photographs of the landscape, before embarking upon the greatest challenge of his career. A team of artists labored for months in Brussels. The finished painting, unveiled in Chicago in 1883, weighed six tons and cost the investors $200,000. The same team produced three other versions, with only minor alterations, for display in Boston, New York, and Philadelphia.

Four hundred feet long. Fifty feet high. It was art on an astonishing scale. All four versions were housed in massive, purpose-built rotundas. In Boston, for example, visitors walked through a grand crenelated archway, paid for their tickets, and proceeded along a dark winding passage toward the viewing platform. They ascended a winding staircase to another time and place. "The impression upon the beholder as he steps upon this platform," one reviewer wrote, "is one of mingled astonishment and awe."

July 3, 1863. The Battle of Gettysburg rages on for a third day. From just behind Cemetery Ridge, visitors watched Pickett's Charge crash against the Union lines. There, in the distance! General Lee and his staff. Much closer, an artillery caisson explodes. All around, soldiers crouch, charge, level rifles, bare bayonets, fight, die.

A dozen different twists heightened the illusion. Drapes hung over the platform from the ceiling, limiting and directing the view and leaving the viewers shrouded in shadows. The indirect lighting shone most brightly on the top of the canvas, illuminating the sky in brilliant blue. The canvas bowed outward by a foot in the middle, receding as it approached the ground and horizon. Tinsel lent a convincing gleam to the bayonets and buckles in the painting.

What most astonished observers, though, was the diorama, which began near the edge of the platform and ended at the painting, 45 feet away. Hundreds of cartloads of earth were covered in sod and studded with vegetation, then topped with the detritus of the battlefield. Shoes, canteens, fences, walls, corpses: near the canvas, these props were cunningly arranged to blend seamlessly into the painting. Two wooden poles, painted on the canvas, met a third leaned against it to form a tripod. A dirt road ran out into the diorama. A stretcher borne by two men, one painted and the other formed of boards, had its poles inserted through holes in the painting. "So perfect is the illusion," as the Boston Advertiser voiced the common sentiment, "that it is impossible to tell where reality ends and the painting begins."

Cycloramas proved capable of confounding even the most sophisticated of observers. In New York, a nighttime burglary of the cyclorama building brought out the police, who spent 30 minutes searching fruitlessly for the suspects. At last, one officer shouted in triumph, "I got him! I got him!" But he had been fooled by the illusion; the figure he clutched was a dummy representing a dead soldier, amid the debris strewn about the foreground. He "felt very bad," the Times reported, "until another officer made the same mistake."

Success brought flattery, in its sincerest form. Enterprising promoters commissioned their own Gettysburg cycloramas. Some were small, cheap imitations, sharing little more than a name with Philippoteaux's four original paintings. Most, though, were credible facsimiles. Their owners hired artists away from Philippoteaux. A few likely worked from stolen sketches, but high-quality photographs, sold as souvenirs, were also readily available. These pirated works were known as "buckeyes," a pejorative commonly applied to things of inferior quality and, in the art world, used for painters and their works aimed at the commercial market. Some of the better buckeyes were passed off as Philippoteaux's own work. There were at least a dozen buckeyes of Gettysburg, and perhaps twice that number, in circulation. These pirated versions toured widely, often stopping at state fairs and exhibitions. It is entirely plausible that Philippoteaux's vision found its largest audience among these fairgoers, lining up to see an imitation of an illusion.

But even convincing illusions are eventually dispelled. "We once obtained permission to go behind the scenes in ... The Battle of Gettysburg," a critic later recalled. "After that the illusion was destroyed. Most of the cannon in the foreground were of galvanized iron, the thickness of a sheet of tin, and so were the soldiers and wagons. When we returned to the platform the skill of the deception seemed to us greater than ever, but we were thoroughly disillusioned." Familiarity turned the marvelous mundane, made the breathtaking banal.

The day of the cyclorama soon passed. In Sioux City, Iowa, a twister lifted the roof off the cyclorama building and destroyed the artwork. Another canvas was sliced into pieces, and sewn together into a tent for a restaurant. Most of the massive paintings, though, met more prosaic ends. They fell victim to leaky roofs and sagging supports, burned, or were left to decompose.

By 1888, the proprietors of the Boston Cyclorama decided that Gettysburg had exhausted its appeal, and commissioned General Custer's Last Fight to replace it. More than a dozen workers labored for two weeks to remove the massive canvas; they spent at least a day just rolling it up. It toured for a few years before slipping from public view. In 1901, the astonished Boston Globe discovered the painting in a crate on a vacant lot, topped by an improvised roof, "going to rack and ruin." The story of a painting that once cost $100,000 rotting in a box, entombed in "a sort of mausoleum of greatness," captured national attention but provoked no efforts at salvage. The Boston Cyclorama Company dissolved three years later. And there the orphaned painting sat.
* * *

No other American cyclorama ever came close to matching the popularity of Philippoteaux's Gettysburg. It had an educational purpose and also offered a voyeuristic thrill. But it gained its decisive edge from its particular subject, Pickett's Charge. More than 12,000 Confederates advanced toward the Union lines in a last, desperate assault on the battle's third day. Philippoteaux captured the moment they reached the top of the ridge. The two armies grappled furiously, but the Union held, and more than half the Confederates fell as casualties. The battle was over. The canvas showed the "fierce onslaught which fixed the nation's destiny," as one reviewer put it.

Just like its tinfoil cannon, though, the cyclorama's presentation of Pickett's Charge was a convincing illusion that could not sustain closer scrutiny. Philippoteaux took his cue from the work of John Bachelder, a painter and lithographer who had embedded himself with the Union army. Bachelder wanted to make the war's decisive moment the subject of his greatest work, an ambition that required him to identify a single iconic scene. After Gettysburg, he seized upon Pickett's Charge, famously labeling the point at which the Confederates were driven back "the high water mark of the rebellion."

It was a brilliant turn of phrase, but the idea itself remained merely an artistic conceit. The Confederate forces came no closer to victory on the third day at Gettysburg than they had on the second. Pickett's Charge was a final gamble, and even if it had succeeded, it was unlikely to have altered the course of the war. Indeed, when it failed, few believed the defeat decisive. It was not even the most important event of July 3, 1863; 1,000 miles to the southwest, a few hours before Pickett mounted his charge, the Confederate defenders of Vicksburg sued for surrender, ceding the Mississippi River to the Union and splitting the Confederacy in two. General Grant later argued that "the fate of the Confederacy was sealed when Vicksburg fell." Other candidates for a decisive moment abound. But none shared the artistic potential of Pickett's Charge.

Bachelder engraved a best-selling overview of the battlefield. He commissioned a painting of Pickett's Charge, sending it on a national tour. In lectures and pamphlets, he thrilled audiences with his description of the decisive moment that kept the nation united, and not divided. Bachelder's relentless efforts began to reshape the memory of the battle. His commercial successes may well have inspired the Chicago investors who commissioned the first Gettysburg cyclorama. And emblazoned on Philippoteaux's massive canvases, Bachelder's vision of the battle seared itself into the nation's collective memory.

Millions flocked to the cyclorama to see the moment at which the Union was saved and the Rebellion defeated. The initial reviews presented the painting as a depiction of the Union's greatest triumph, where it smashed "the desperate and disastrous charge of Pickett's column." A Union veteran recast Bachelder's "high water mark" in more sanguinary terms -- as the spot where "the wave of rebellion reached its greatest height" and was "thrown back in a bloody spray." A former Confederate, visiting a friend in Boston, found the reminder of defeat a little too vivid. "He watched the picture in silence, and then strode out of the hall, while with a fierce gesture he exclaimed: 'Why don't you Yankees paint Bull Run?'"

It was an understandable reaction. But as time wore on, Pickett's Charge assumed a new significance. While few survivors initially remembered the battle as glorious, the image crafted by Bachelder and popularized by Philippoteaux ultimately proved irresistible to most Confederate veterans. It offered them a chance to celebrate their valor and sacrifices. "I saw two veterans watching the cyclorama of Gettysburg and the tears streamed down their cheeks," a top official of the United Confederate Veterans reported approvingly. A notice in the Confederate Veteran in 1897 applauded the painting of "brave Pickett and the grey-coated heroes" and its "tale of heroism unequaled in history." It urged that the cyclorama, when on display at Tennessee's Centennial Exhibition, "be seen by every one who visits the grounds."

The painting also hinted at tantalizing possibilities. If the war had a single decisive moment -- its outcome in the balance -- then it might have ended differently. It was the sentiment best captured by William Faulkner a half century later, as he painted the by-then familiar scene:

For every Southern boy fourteen years old, not once but whenever he wants it, there is the instant when it's still not yet two o'clock on that July afternoon in 1863, the brigades are in position behind the rail fence, the guns are laid and ready in the woods and the furled flags are already loosened to break out and Pickett himself with his long oiled ringlets and his hat in one hand probably and his sword in the other looking up the hill waiting for Longstreet to give the word and it's all in the balance, it hasn't happened yet, it hasn't even begun yet...and that moment doesn't need even a fourteen-year-old boy to think This time. Maybe this time ...

Perhaps the greatest appeal of the painting was that it captured both Northern heroism and Southern valor in a single vivid picture. By 1883, when the first cyclorama opened, the North had largely retreated from its efforts to reconstruct the South, leaving that revolution unfinished. Reconciliation was the order of the day. The cover of the Boston Program showed a Union soldier clasping hands with a Confederate. Such appeals were not only good politics; they were good business. In New York, the lecturer took pains to praise the heroism of both sides. "No ex-Confederate could listen, except with a full heart, to the panegyric heaped upon Pickett's men at the cyclorama of 'Gettysburg,'" the Blue and Gray observed in 1893. The cyclorama offered an image that both sides could regard with pride. And, by fixing the war firmly in the past, it offered the public a chance to celebrate how far it had come.

* * *

After mouldering in its mausoleum for a decade, the Boston cyclorama received a new lease on life. In 1910, the department-store mogul Albert Hahne dispatched an agent to procure the massive painting. He used large sections cut from the canvas to adorn the soaring atrium of his new flagship store in Newark, New Jersey. From there, the painting traveled to New York, Baltimore, and Washington, arriving in Gettysburg in May 1913. It was installed in a crude, temporary building, where it would remain for the next 47 years. The convex canvas was flattened against the wall behind it, and many of the remnants of the tattered blue sky were shorn off. Gone was the elaborate diorama that had blurred the line between foreground and painting. But even in its straitened state, the picture retained some of its old power.

It was installed in time for the 50th anniversary of the battle. That reunion, trumpeted as the Peace Jubilee, brought more than 50,000 veterans of the war together on the field of battle. Union men mingled with old Confederates. They listened to President Woodrow Wilson, the first southerner in the White House since the Civil War, as he praised the fruits of reconciliation:

How wholesome and healing the peace has been! We have found one another again as brothers and comrades in arms, enemies no longer, generous friends rather, our battles long past, the quarrel forgotten -- except that we shall not forget the splendid valor, the manly devotion of the men then arrayed against one another, now grasping hands and smiling into each other's eyes.

The cyclorama provided the perfect complement to the occasion. The landmarks had changed over the decades, and memories had faded. Staring at the painting, though, veterans moved effortlessly back through time. The cyclorama, despite its mistakes and flaws, now offered a vision of Gettysburg with which not even the actual battlefield could compete. Inside the cyclorama, "men of both sides gathered, finding it easier to locate their positions in the vivid reproductions of the scenes than on the wide-spreading landscape." Two such veterans found themselves standing side by side. They shook hands. They recalled their units, and realized that they had fought each other nearby, 50 years earlier.

They stood there silently for a moment, the heart of each too full for speech. Then the Confederate rallied. "We're all comrades now," he said.

It was the great theme of the Peace Jubilee, and the cyclorama became its physical embodiment. Visitors came from around the country to remember the courage of those who fought, and the horror of the fight itself. "More and more," the cyclorama's lecturer told his audiences, "the country is coming to feel the plain truth of the fact that the valor of both sides in the Civil War is the equal heritage."

Not everyone agreed. "The occasion is to be called a Reunion!" exclaimed the Washington Bee in disbelief. "A Reunion of whom? Only of those who fought for the preservation of the Union and the extinction of human slavery? Is it to be an assemblage of those who fought to destroy the Union and perpetuate slavery, and who are now employing every artifice and argument known to deceit and sophistry to propagate a national sentiment in favor of their nefarious contention that emancipation, reconstruction and enfranchisement are dismal failures?"

By explicitly naming slavery the cause of the conflict, and identifying emancipation as its crowning achievement, the newspaper brushed aside the gauzy veil of nostalgia. It had not lost sight of the meaning of the struggle, nor was it prepared to forfeit its dear-bought gains for the sake of reconciliation. The New York Age, another black newspaper, took aim at the pieties of peace, mocking the assertion that there was "no North and no South, but one country and no Union or Confederate soldiers, but one soldier; and no loyalty and no treason but just a 'misunderstanding' between brothers which time had made plain, in which the Confederates have proven that the Union soldiers were in the wrong and the Confederate soldiers were in the right."

Hundreds of black veterans made the journey to Gettysburg to mark the 50th anniversary. They greeted the reenacted rebel yells with cold silence. And, like many of their white comrades in the Grand Army of the Republic, they distinguished between forgiving and forgetting. A wave of recent scholarship has rediscovered the lingering idealism harbored by many Union veterans, both black and white. They regarded secession as treason, and emancipation as a noble cause. The Age reported that the "mock lovefest at the Gettysburg celebration did not conceal the skeleton in the national closet. Negro Grand Army men who attended the celebration have told us that there were constant disputes and rows among the Union and Confederate veterans."

For black veterans, in particular, the war was not over. If the price of reconciliation was turning a blind eye to Jim Crow, rebuilding the nation around a compact of white supremacy, they wanted no part of the bargain.

* * *

The cyclorama re-created the Battle of Gettysburg in stunning realism, with impeccable attention to the smallest minutiae. Yet it offered not a single clue as to why the battle had been fought. No matter how hard they looked, or how long they stared, no visitor would find in the painting any trace of the cause of the war. There was carnage. There was valor. But there was no purpose.

Battles are not fought in isolation. At Gettysburg, two armies clashed. The North fought to ensure that a nation conceived in liberty, and dedicated to the proposition that all men are created equal, would long endure. Its victory secured a new birth of freedom, which increased and flourished during Reconstruction. But over the ensuing decades, the promise of Gettysburg faltered. Emancipation brought greater liberty, but for black Americans, there was no equality. The revolutionary changes wrought by Reconstruction were rolled slowly backward. The work that the Union dead had so nobly advanced was left unfinished; the great task remained.

The dead's survivors insisted that their soldiers had not died in vain. The reunited states grew ever stronger and more prosperous. The rise of the American nation, reforged in the crucible of war, lent the conflict retrospective purpose. Reconciliation somehow served to justify the breach.

The Gettysburg cyclorama helped the North and South forget their old divisions, and unite around a shared memory of common valor and sacrifice. The painting created an experience so vivid, so visceral, that it supplanted the fading memories of the war itself. It showed a desperate fight so real as to utterly obscure the underlying clash of conflicting ideals. It froze time itself, isolating Pickett's Charge from all that had produced the effort and all that would follow. And it enjoyed the greatest popular success of its day.

A few years ago, the cyclorama at Gettysburg was restored to its former glory. Conservators repaired the painting and re-created the elaborate diorama in its foreground. Once again, it works its old, beguiling magic. "The visitor will miss much," warned a 19th-century critic, "if he fails to notice this blending of the real and the illusory." And every visitor to the Pennsylvania battlefield, not once but whenever he or she wants, can relive that moment on a July afternoon in 1863 when it all hung in the balance. Staring at the brave soldiers, it is all too simple to forget the causes of the war, and its consequences; all too easy to imagine that both sides fought with equal justice, and that the war was all a horrid, bloody tragedy.

This is the greatest illusion of all.

The 50 Most Powerful Images From the Civil War

2012-02-05T18:00:28-05:00

From lash marks on a slave's back to bombs bursting over Charleston, these pictures bring a turbulent era to life.

Also See

A Special Commemorative Issue of The Atlantic

Photography came of age around the same time President Abraham Lincoln came to Washington. Abolitionists demonstrated the power of the new medium when they circulated a photo of a former slave with his head posed in dignified profile, welts covering his naked back. The New York Independent wrote, "This Card Photograph should be multiplied by the 100,000 and scattered over the states. It tells the story in a way that even Mrs. [Harriet Beecher] Stowe cannot approach, because it tells the story to the eye."

For our recent Civil War commemorative issue, we partnered with the National Portrait Gallery and gathered dozens of photos and lithographs from before, during, and after the war. These images appear throughout the magazine, paired with classic Atlantic articles by writers like Mark Twain, Frederick Douglass, and Louisa May Alcott. Viewed together in the gallery below, they tell a powerful story of their own.

Senate GOP: Activist Federal Judges Wanted

2012-02-05T15:00:51-05:00

The hypocrisy of a group of Republicans who are supporting the lawsuit against Obama's recess appointments

AP Images

There is something deliciously hypocritical about the brief letter 40 Senate Republicans made public Friday announcing their intention to file a "friend of the court" brief in one of the federal lawsuits challenging President Barack Obama's recent recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board. The gang that decries "judicial activism" at every opportunity now wants the federal courts to activate on their behalf to broker a political dispute between the executive and legislative branches.

Sen. Charles Grassley (R-Iowa) signed the letter. In June 2010, he said he was worried that United States Supreme Court nominee Elena Kagan would not show a proper amount of "judicial restraint." Sen. John Cornyn (R-Texas) also signed. He's the former judge who wondered aloud in 2010 whether courthouse violence wasn't linked in some way to judges who make "political decisions." Sen. Orrin Hatch (R-Utah) signed, too. Last year, he said that the "Constitution belongs to the people, not to judges."

Sen. Tom Coburn (R-Okla.) is also on board. In 2005, decrying "judicial activism," he proclaimed that "all legislative power belongs to Congress." And Sen. Mike Crapo (R-Idaho), too. He voted against both of President Obama's Supreme Court nominations because of what he called "increasing judicial activism in this country." Sen Lindsey Graham (R-South Carolina)? He signed, too. In 2010, he said "all of us abhor judicial activism because it's a threat to society in general when an unelected judge takes on a role outside of their sphere."

I mention these particular senators from among the 40 signees because they are all on the Senate Judiciary Committee, which means they have had a front-row seat over the past few years to the interaction between the White House and Congress when it comes to appointees and nominations. They know exactly how many of the President's qualified judicial nominees have been held up by the threat of filibuster. And they know, deep down in their hearts, that "judicial activism" is a made-up political word, full of sound and fury but signifying nothing.

I don't know how the federal courts will react to the pending lawsuits challenging the recess appointment, for example, of Richard Cordray to the CFPB. He's already on the job, focusing upon the current housing crisis, and it's easy to imagine the judiciary choosing to stay out of the fight. I can much more clearly see a federal trial judge calling this matter a "political one," best left to the other two branches to resolve, than I can see that same judge issuing a partisan ruling that dictates a judicial rule for recess appointments.

We'll know soon enough. In the meantime, if I were a Democrat in the Senate, or a White House tribune, I would be responding to the GOP lawsuit letter by loudly doubling down on the concept of having judges determine political procedure. Republicans want the courts involved in recess appointments? Fine. Then they should embrace the notion that the federal courts ought to decide whether the filibuster is constitutional as well. After all, it has less explicit constitutional support than does a recess appointment, does it not?

If we're going to have a lawsuit about recess appointments let's have one about filibusters. And then we can have one that requires the Senate to take up approved judicial nominations from the Judiciary Committee in a timely manner. Then we can have a lawsuit challenging the ancient use, the "informal custom" it is otherwise called, of the "blue slip," which harms the national interest at the expense of personal prerogative. There are dozens, maybe hundreds, of dysfunctional components to current Congressional practice. Let's litigate them all!

It's hard to know whether the irony of all of this has escaped the men and women who signed the GOP letter. And it's hard to know how they will react when the poor judge who has to deal with this recess nonsense decides the dispute is, in fact, a non-justiciable case. They won't be able to call that judge an activist then, will they? Or maybe they will. They surely will call her that if the judge hears the case and rules in favor of the White House. And they surely won't if the judge rules their way. Politics is as politics does.

A "friend of the court" brief, which is only what the Senate Republicans have promised so far, is like a postcard instead of a love letter. It tells the court that you care enough about the matter to express an opinion but not enough to enter the arena as an actual litigant. Maybe that's how the letter writers will try to wiggle out of the inherent contradiction between their eternal anguish over "judicial activism" and their current attempt to curry it. Then again, maybe not.

Odd Facts About the Civil War Era

2012-02-05T08:55:09-05:00

From facial-hair crazes to Lincoln's naughty sense of humor, a collection of surprising historical tidbits

What the Security State Hath Wrought

2012-02-03T19:09:18-05:00

A citizen of a Western European country, who works in the United States for a fast-growing Internet startup company, writes today:

In many of your TSA related post, a key theme is the illusion of security through ineffective and "invasive" means. Seems like there is more of this going on in the broader "security" world.

-A young British couple was sent back from the US after some ill-advised but innocuous tweets;

-Muslim man gets arrested for using term "blow away the competition" in a text message

It's one thing to have Google and Facebook data mine your life to make money for themselves. It's another thing if innocent communication gets you in trouble with a humorless bureaucracy without adequate recourse.

The fact that as a green card holder I seriously hesitated before hitting "send" on this message means something I think.

The stories my correspondent links to are quietly incredible. About the latter episode, which took place in Quebec, today's news story describes what happened to a telecom salesman named Saad Allami:

On Jan. 21, 2011, Allami sent a text message to colleagues urging them to "blow away" the competition at a trade show in New York City.

According to [a lawsuit for damages he has filed], he was arrested without warning by police three days later and detained for over a day while his house was searched. During his detention, a team of police officers allegedly conducted an "intrusive" four-hour search.

"The whole time, the officers kept repeating to the plaintiff's wife that her husband was a terrorist," the filing reads.

The British couple, shown below in a photo via ABC, got in trouble for a slangy use of the word "destroy" in a Tweet. The ABC account says:

"Free this week, for quick gossip/prep before I go and destroy America," one of the tweets read. Bryan told The Sun [in England] that in this context "destroy" just meant party.

"The Homeland Security agents were treating me like some kind of terrorist. I kept saying they had got the wrong meaning from my tweet but they just told me 'You've really f***ed up with that tweet, boy'," Bryan told The Sun.

There are a lot more details in The Sun's account -- and with all allowances made for the imaginative potential of UK tabloids, it is worth a look.

Yes, we need to be "safe." It is worth noting what we are giving up in the name of safety. Think about the last line in the note from my European friend.

Why Market Forces Are Good for Education

2012-02-03T12:14:17-05:00

School vouchers not only help the students who use them -- they also give public schools extra incentive to improve

Above: Students at a New Orleans charter school (Lee Celano/Reuters)

Several years ago, Paul was one of many children struggling through the Washington, D.C., public school system. In an interview as an 11-year-old, he looked back on his public school experience this way: "People screamed at the teacher, walked out of school during class, hurt me, and made fun of all my friends." His school experience changed dramatically after receiving a voucher through the D.C. Opportunity Scholarship Program, enacted in 2004. His family was able to send him to a parochial school in the District, setting him one step closer to fulfilling his dream of becoming an architect.

The idea that public education does not have to mean government education was a trailblazing one in the 1950s, when Nobel Prize winning economist Milton Friedman first outlined the idea of school vouchers. To paraphrase Friedman, just because Americans have agreed to the public financing of education does not mean they believe government should dictate where a child goes to school.

It was academic idea at the time, but school choice has caught fire in recent years and is now taking hold in states and districts across the country. The thirst for more options accelerated the movement in 2011, when 12 states and the District of Columbia either expanded existing programs or created entirely new options. In Arizona, for instance, parents of special-education children can now deposit 90 percent of the money the public school system would have spent on their children into an education spending account. They can then use those funds to pay for private school tuition, online learning, or special education services, or even roll it into a college savings account.

School choice works to improve outcomes so well, in fact, that many of the gains are produced at a far lower cost than what public school systems spend. Competition produces improvement but also works to lower expenses. It's a notion that is ubiquitous in other sectors of American society. As Senator Jim DeMint put it in a recent speech, to concede education to a government service is a terrible way to run schools.

Yet, for reasons having more to do with entrenched special interests than anything else, some people are uneasy about instilling market forces in our classrooms. They argue that allowing students to opt out of the public school system hurts those who remain behind. Not every parent is savvy enough to research all the options, this reasoning goes, which means that the most helpless children end up abandoned together in underfunded schools where nobody cares.

But let's look more closely at this argument. As it happens, the research tells a different story. In a meta-analysis published last March, education researcher Greg Forster looked at all of the gold-standard empirical studies conducted to date on school choice. Not surprisingly, in nearly every study, the students who participated in school choice showed marked improvement (and no study showed any negative impact on their achievement). But 18 out of 19 studies also showed that in areas where school vouchers were offered, students who stayed behind in public schools also had improved outcomes. The competitive pressure improved public school education in those communities as well.

In the words of researchers Jay Greene and Marcus Winters, the facts run "contrary to the hypothesis that school choice harms students who remain in public schools." Greene and Winters have seen this firsthand. Their study of a voucher program for special-needs children in Florida found that the competitive pressure significantly increased achievement for area children who remained in the public system.

School choice is such an objectively beneficial policy that it's drawing high-profile supporters from both sides of the political divide. At last week's kickoff event for National School Choice Week in New Orleans, Democratic political operative James Carville told a reporter from Reason magazine that he was "very excited about" school choice. "I think we ought to give our children the best we possibly can, and I think we're moving in that direction," he said.

In cities like Washington, D.C., the impact is especially clear. Imagine being a low-income parent of a child in the D.C. school system, where, during the 2007-2008 school year, more than 900 calls from D.C. Public Schools were placed to the D.C. Metropolitan Police Department to report violent crimes.

When the D.C. voucher program came along in 2004, poor parents finally had an escape route. Violence was such an issue for parents in Washington, D.C., that even after their children were enrolled in private schools, their primary concern was school safety. But after two years, researchers found, parents felt assured that their children were in safe environments. At that point, their chief concern became the academic performance of their children - which is exactly as it should be.

The impact of school choice also is seen, perhaps most importantly, on graduation rates. When the D.C Opportunity Scholarship Program began in 2004, Congress mandated annual evaluations of the program's performance. The most recent found that students who used vouchers to attend private schools had a 91 percent graduation rate. (Graduation rates in D.C. Public Schools hover under 60 percent.)

University of Arkansas professor Patrick Wolf, who led the evaluation, noted that graduation rates have a profound impact on a child's future success. As Wolf points out, "How far you go is more important than how much you know." Graduating from high school, Wolf pointed out, impacts earnings, incarceration rates, and even marital stability. In the meantime, Wolf found, school choice has a positive impact on family dynamics, prompting parents to "move from the margins of their child's educational experience to the center."

And the choices are becoming as diverse as the student needs they seek to meet. While the school choice movement has long been confined to options like vouchers, education tax credits, and charter schools, new innovations are providing entirely new funding mechanisms to help families tailor their child's educational experience. Some states are even considering options that would give students choice down to the credit level, empowering them to craft a customized education.

Which is what school choice is all about: Customizing a child's education so it fulfills the child's unique needs, not the needs of the adults in the system.

The philosophical groundwork laid by Friedman has been won through the stories of families who have benefited so much, and through the large body of empirical evidence demonstrating its efficacy. The will of families to provide the absolute best for their children is stronger than any army of education unions or the status quo. For that reason, parental school choice will continue its long-overdue march forward.

Some 'Three Dot Journalism' in Honor of Herb Caen

2012-02-03T12:09:00-05:00

In homage to the legendary San Francisco columnist who died 15 years ago this week, a round-up of recent news on Guantanamo Bay... Texas gerrymandering... Proposition 8... Geico's Rescue Panther... the Super Bowl...

mk94577/Flickr

You may or may not remember Herb Caen, the great and prolific newspaper columnist, the beloved and respected Pulitzer-Prize winner, who wrote for the San Francisco Chronicle and the San Francisco Examiner for nearly 60 years. Caen, who died 15 years ago this week, often strung together his columns in a style widely described as "three-dot journalism": a series of short items separated by ellipses. I thought it might be appropriate on this first Friday in February to pay tribute to the wonderful man by offering up a column in the old-school Caen style. Here goes...

Did you read Sen. Saxby Chambliss' comments about a gently proposed White House plan to send five Guantanamo Bay detainees to Qatar in advance of peace talks with the Taliban in Afghanistan? "These are five of the meanest, nastiest killers in the world," the senator said, even though he doesn't know the names of any of the men... The senator's reaction was sadly reminiscent of all those false and disingenuous "worst of the worst" labels placed on the Gitmo detainees by members of the Bush Administration...

... It will cost you an hour, but you should spend the time and watch this panel discussion (click on link that says "Journalism Panel") from a recent Brigham Young University Law School program on how some of the country's best Supreme Court reporters cover their beat... So unemployment now is down to 8.3 percent, and I'm waiting for another brilliant political journalist to write yet another definitive column linking that number to President Barack Obama's re-election chances. How low does it have to go?...

... Back in Texas, the judges now responsible for coming up with a new redistricting plan for the Lone Star State evidently have their doubts about the Republican gerrymander. From the Associated Press: "It's hard to explain changes to the map 'other than doing it on the basis of reducing minority votes,' said the presiding judge, Rosemay M. Collyer."... And, a little further south and east, we mark today the 50th anniversary of the American embargo on Cuban cigars and other goods...

There was a ton of coverage this week over a court ruling that kept video recordings of California's long-ago Prop 8 trial secret. Having followed that case closely, and seeing how one-sided it was, I can understand why same-sex marriage proponents want the world to see it... Meanwhile, back in Washington, Attorney General Eric Holder took some serious heat on Capitol Hill this week for his testimony about the "Fast and Furious" fiasco. This tense moment was particularly interesting. Yikes...

The ACLU sued the government this week, under the Freedom of Information Act, seeking documents relating to the Obama Administration's drone program. The ACLU says the feds can't have it both ways -- boasting about the program in public and then arguing in court that it's too secret to have its legal justifications exposed... The suit came just a few days after Leon Panetta, appearing on CBS News' 60 Minutes, tap-danced around the question of what legal basis existed for the killing of U.S. citizen Anwar al-Awlaki...

Oklahoma is giving New Hampshire a run for its money for craziest state lawmakers. In New Hampshire, the Death Penalty Information Center reported that lawmakers are bucking a national trend by trying to expand the state's death penalty regime... And in Oklahoma, State Senator Ralph Shortey is spending state taxpayer money on these projects to nowhere. From the guy who proposed a bill to ban the use of human fetuses in food comes a measure that would strip the Oklahoma's supreme court from evaluating the constitutionality of certain state statutes...

California this week marked Fred Korematsu Day (kids, look him up)... It looks like the state of Washington will be the latest jurisdiction to recognize the legality of same sex marriage, a legislative achievement that prompted the National Organization for Marriage to financially back candidates who would run against the four Republican lawmakers who voted in favor of the measure... Back in New Jersey, meanwhile, Gov. Chris Christie called a gay state lawmaker "numb nuts" and pledged to veto same-sex marriage legislation...

On the bright side, if you get a chance this Super Bowl weekend, check out the new Geico commercial with the " rescue panther." It may be my favorite commercial ever... I also loved HBO's Joe Namath documentary, mostly because Namath himself seemed so comfortable and candid in explaining some of the ups and downs in his life. A straight shooter, that Broadway Joe... And so was Angelo Dundee, who trained Muhammad Ali and Ray Leonard. Wouldn't you want to hear just some of the stories that Dundee never got around to telling?...

***

Okay, clearly, I'm no Herb Caen. Day after day, week after week, year after year, he churned out columns in this style. Like Mike Royko and Jimmy Breslin he owned the beat in the city where he worked. And that's why I think Herb Caen is worth remembering today. I hope some commenters here, especially those of you in or from the Bay Area, will take a little time below to share their recollections of Caen's work. You can read some of his columns, and many tributes to him, here, among other places.

National : The Atlantic

In Birth Control Debate, Religious Beliefs Don't Trump Rights

The Book of the Century About the Death Penalty

Related Story

MORE ON THE DEATH PENALTY

When Journalists Write Like Flacks

The Radicals: How Extreme Environmentalists Are Made

The Daredevil Ingenuity of the All-American Soap Box Derby

In Wake of Sex Abuse Scandal, an L.A. School Replaces Its Entire Faculty

Another Reason Not to Bomb Iran

The 8 Biggest Lessons From Yesterday's Prop 8 Ruling

What's Next for Proposition 8?

Stealing From the D.C. Government Is Still Distressingly Common

The Atlantic's Civil War

Is the UN Using Bike Paths to Achieve World Domination?

I Was a Teenage Black Panther

Eddie Long Is Sorry

When Richard Holbrooke Met Malcolm X

A History of Violence

Occupying the 'Wall Street Journal'

The Torture Memos, 10 Years Later

The Great Illusion of Gettysburg

Also See

The 50 Most Powerful Images From the Civil War

Also See

Senate GOP: Activist Federal Judges Wanted

Odd Facts About the Civil War Era

What the Security State Hath Wrought

Why Market Forces Are Good for Education

Some 'Three Dot Journalism' in Honor of Herb Caen