Manipulating History in Open Societies

By David K. Shipler

            Russians used to tell a joke in communist times: What’s the definition of a Soviet historian? A person who can predict the past.

            Disfavored officials were air-brushed out of photographs and deleted from textbooks. Wartime atrocities were ignored, and history was burnished with heroism. It was done by government edict, making the synthetic past immune to correction. It also made the Soviet Union very different from open societies, where (we believe) facts will survive and truth will ultimately prevail.

            But will they? Look closely and you can see that pluralistic democracies also manipulate history, notwithstanding their spirits of fluid inquiry and acerbic debate. Critics can dispute distortions, of course, as they do vigorously in both the United States and Israel, two countries where portrayals of history are often bent by the emotional weight of war. Yet distortions endure, for nature abhors a moral vacuum when it comes to war, and war is exactly that: a moral vacuum.

            A fresh search for virtue is underway this spring, the 40^th anniversary of the fall of Saigon, illustrated by the air-brushed history in a new documentary, “Last Days in Vietnam,” directed and produced by Rory Kennedy, to be broadcast by PBS April 28.

            The film is the anguished tale of panicky Americans rushing to evacuate as many Vietnamese as possible before North Vietnamese tanks roll in. Many of the images are familiar, the personal accounts less so. They are gripping stories of Vietnamese made vulnerable by their military service or their employment by the U.S. government, and of daring American officials organizing an airlift out of chaos.

            The trouble is, the brief historical set-up to this climax is so badly flawed that after the movie was first screened last year, a strong letter urging revisions was sent to Kennedy, signed by more than 30 correspondents who covered the war (including me). It didn’t help. (See link to text of letter in righthand column.) The film’s crucial silences lead the viewer to think that the ceasefire called for in the 1973 Paris agreement was violated by only North Vietnam, that no misdeeds by the U.S. or South Vietnam contributed to the peace plan’s demise.

            No mention is made of South Vietnam’s military offensives after the supposed ceasefire, of the rampant corruption and drug addiction in the South Vietnamese military, or of the failure by all sides to pursue the political settlement outlined by the agreement. Absent is the illicit involvement of American ex-military men in arming South Vietnamese aircraft for bombing runs violating the ceasefire.

The silences add to the dramatic effect—the South Vietnamese as innocent victims, the Americans as pure humanitarians—which heightens the nobility of those who struggled compassionately at the end. But by creating an occluded lens through which to view that finale, the film lets “a false narrative take root in the public mind,” the correspondents’ letter observed. The troubling result was aided briefly by WGBH, the sponsoring public television station in Boston, whose resource for teachers featured a six-minute clip of the one-sided history, until it was taken down around the time of a complaint about it by a former correspondent, Arnold R. Isaacs.

“If you consult reputable historians and any serious journalist who covered that history, I believe a large majority will tell you that this video presents fiction, not historical fact,” he wrote to WGBH. “It is a safe bet that only an infinitesimal minority of teachers or students who might see this video will know enough to recognize its faults.”

Isaacs (in the interest of full disclosure, my brother-in-law) had been there at the end, for The Baltimore Sun, and wrote a powerful, authoritative book, Without Honor: Defeat in Vietnam and Cambodia, chronicling the period from the Paris agreement through those final weeks and days. Among his objections to the film’s history was its clip of Vietnamese struggling to get onto a World Airways flight from Danang to flee south, ahead of the North Vietnamese advance. “Watching that video,” he wrote to me last week, “if you didn’t know it beforehand you would have had no clue that the people mobbing the hatchway were virtually all soldiers who had shot their way through crowds of civilian refugees to get to the plane. As I wrote in Without Honor, it landed in Saigon with four women, three children, three old men, and 320 soldiers.”

The film is being broadcast under the rubric of WGBH’s and PBS’s American Experience, which has decided to brook no criticism on its site. Jim Laurie, who covered the war for NBC, wrote a solid piece on the historical inaccuracies but was told it would not be posted unless his direct criticisms of the film were deleted. For example, he notes that the film leaves unchallenged the assertion by then Secretary of State Henry Kissinger that officials thought the Paris accords could lead to permanent division, as in Korea, a fanciful argument that Kissinger himself could not have believed, given that “the United States has stationed more than 30,000 troops in Korea for more than sixty years to guarantee a two state situation on the peninsula,” Laurie wrote. “In Vietnam no such role for the US was ever envisioned.”

“Also missing from the film’s narrative is any reference to the incompetence and corruption of some of the South Vietnam command,” he added, quoting Loren Jenkins of Newsweek seeing South Vietnam’s Economic Minister in 1974 handing out $100 bills to commanders in Danang in Hue. “They lined up like school boys at a candy store for their handouts,” Jenkins said.

Even the history that survives WGBH’s hatchet will not be visible to the public until after the broadcast, Laurie told me. His piece will be posted only on Wednesday, although “I argued that people might go to the website for more information during or just after the broadcast and would find no corrective there.” Laurie sardonically called this “my ‘American Experience.’”  

If Americans can’t agree on facts about a war long ended, imagine Israelis’ debates over the origin of their continuing conflict, their War of Independence in 1948. It took decades for textbooks to acknowledge that Israeli troops expelled Arabs, and longer for massacres of Arab civilians to be exposed. A respected Israeli historian, Benny Morris, documented about two dozen massacres but could not confirm one case in particular, at the village of Tantura, which recently embroiled both Israelis and Americans in a battle over artistic freedom.

An Israeli playwright, Motti Lerner, grew up near Tantura hearing stories of the killings. He believes that excavating history and listening to the other’s narrative are essential to Israeli-Arab coexistence. So he built a play, “The Admission,” around fictitious Arab and Jewish men, now friends, who were both at the village—the Arab as a witness, the Jew as a commander. Their children dig through layers of memory and denial, leaving the audience “deeply unsettled and unresolved,” in the words of Ari Roth, who produced the play in Washington, D.C., as the artistic director of Theater J. It is a genre designed “to break somebody open so that they can pick up the pieces outside the theater,” he said. Perhaps this can “ultimately effect change in society by leaving the theatergoer devastated, pulverized, opened up, and agitated.”

Theater J, in the District of Columbia Jewish Community Center, had been under fire for years by a small group of conservative American Jews who decried, as slanderous, plays and discussions exploring Israel’s morality. Urging donors to withhold contributions, they made fundraisers nervous, particularly when the argument turned on a moment of disputed history.

“The Admission” got full houses and rave reviews, the usual index of theatrical success. But the Jewish Community Center, heading into a capital campaign, cancelled Roth’s annual Middle East festival, then fired him after he told the press about the conflict. He has now launched a new enterprise, the Mosaic Theater Company, which next year plans a new play by Motti Lerner, After the War.

You can bet that Roth will put unwelcome truths on his stage, resisting the admonition that even in an open society, you sometimes have to predict the past.

The Parochialism of Grief

By David K. Shipler

            We awoke this morning to the terrible news of the devastating earthquake in Nepal, where our son and daughter-in-law used to live doing humanitarian work, and where they have many friends. Through them, we also know several people there, so our natural and urgent need was to learn whether our friends and theirs were OK. Fortunately, the answer was yes, all were accounted for, which brought a sense of great relief. And then I felt a wave of guilt for being relieved just because those who perished were unknown to me personally. Was it enough to ache with diffuse sorrow at a distant tragedy, instead of being cut by a sharp edge of personal grief?

            We each live at the center of concentric circles of affinity, from our immediate families close in the middle, to rings of wider relatives, to dear friends, then more casual or professional acquaintances, and out into the wilderness of humanity at large. And within that vast reservoir of anonymous people, our connections and concerns—and pain of loss—are often determined by how alike the victims are to us.

            Years ago, a bunch of us reporters at The New York Times tried to graph the way this unconscious calculation shaped news judgments.

The Long Arc of Injustice

By David K. Shipler

            Earlier this month, a black man named Anthony Ray Hinton, convicted of murder thirty years ago, finally walked free in Alabama, out of death row. The finger of guilt now points to many others: not just the real killer, who may still roam the land, but also hasty police officers, blinkered prosecutors, careless ballistic examiners, politicians who won’t adequately fund criminal defense for the poor, and judges up and down the hierarchy from trial courts to appellate courts. The case is such a cold window on the dangers of the death penalty, which if carried out cuts off all possibility of revision and reversal, that it seems worth posting excerpts here of the detailed examination in my book Rights at Risk:

The law is a labyrinth, best comprehended by the high priesthood of attorneys who fashion and interpret its abstruse language. No unschooled layman, standing nakedly unrepresented before the terrible engine of the criminal justice system, can possibly fathom the hidden dangers of error—or the invisible shields that offer unnoticed protection.

Hinton’s court-appointed lawyer, Sheldon Perhacs, was given too little money to hire a reputable firearms expert to dispute the questionable findings of a police lab, and was still bitter about it decades later. The “expert” he could get for the $500 the court provided, a one-eyed retired engineer who couldn’t operate a comparison microscope, had jurors laughing in ridicule. Perhacs needed $10,000 for a qualified toolmarks examiner from New Orleans, because the case against Hinton for two murders rested entirely on a dubious lab report. It purportedly matched Hinton’s gun with bullets from the bodies, but the results were more ambiguous than prosecutors let on. Perhacs could not mount a persuasive rebuttal without a true expert.

Israel and Iran: The Enemy of My Enemy

By David K. Shipler

            History is a fickle thing, and given Israel’s intransigence toward Iran today, and toward the nuclear deal just negotiated, it’s worth remembering how differently the two countries’ interests lined up thirty-five years ago, even after Iran’s Islamic revolution of 1979.

In the early 1980s, during the Iran-Iraq war, Israel’s then Defense Minister, Ariel Sharon, invited me down to his ranch for a chat. He had a specific purpose, which emerged during our long conversation on a range of subjects. The point he pressed most urgently was the need for the United States to repair its relations with Iran. The country was a major player in the region, he argued, not to be ignored by Washington in the aftermath of the rise of Ayatollah Ruhollah Khomeini. He believed the Americans should be reaching out to Tehran, cultivating a restoration of ties.

            His view was self-serving, in that Iran was the chief counterweight to Iraq, Israel’s archenemy at the time. Egypt had signed a peace treaty with Israel, Jordan had a weak military. Syria and Israel were technically still at war but were observing a de facto peace along their common border on the Golan Heights.

But Iraq was a formidable military power in the region, and a threat. It had never endorsed the Arab-Israeli armistice of 1948, was helping finance the Palestine Liberation Organization, and had tried to go nuclear—an effort halted by Israel’s bombing in June 1981 of its nuclear reactor.

So Israeli officials quietly celebrated the grinding Iran-Iraq war as it went on year after year, reasoning that Iran would handicap and preoccupy Iraq and, in the longer term, serve as a balance against aggressive impulses in Baghdad. The enemy of Iraq was, well, if not a friend, at least a convenience. Indeed, Sharon publicly accused the US of arming Iraq with heavy weapons during the war.

Pressuring Israel

By David K. Shipler

            “If the United States decided it wanted to stand by the Palestinian people, we’d have our state in forty-eight hours,” Muhammad Arrar told me several months ago. He was a sinewy man in his mid-forties, a council member in Jalazoun, the West Bank refugee camp. “Israel is America’s fifty-first state,” he continued, in a standard line you hear from Palestinians. Then he added a plea: “In America in the 1700s, a majority of Americans stood up with their weapons and fought, and they raised their rights of liberty.”

This refrain was on the lips of virtually every Palestinian I encountered in the camps, in schools, in government offices; it was a naïve caricature of Israel as a kind of vassal state that could quickly be brought to heel by a flick of the superpower’s wrist. I tried to explain the limits of Washington’s power. Nobody accepted my brilliant analysis. I could see, through their veneer of courtesy, that they thought I was the one being naïve—or disingenuous.

But the relationship is complicated and contradictory, and its core—the dollars and hardware that bolster Israel’s military security—remains undamaged by the recent tiff between President Obama and Prime Minister Benjamin Netanyahu. Largely overlooked in the reporting on Monday’s speech by White House Chief of Staff Denis McDonough—whose criticisms of Netanyahu were given front-page coverage—was his affirmation of the nuts-and-bolts commitment, his impressive listing of the muscular, technologically advanced weaponry already in the pipeline. He pledged unflagging support, while criticizing Republicans for holding the defense budget, which includes aid to Israel, at 2006 levels.

The Rise and Fall of the Palestinian State

By David K. Shipler  

No matter who forms the next Israeli government, whether Benjamin Netanyahu or Isaac Herzog, a bet on statehood for the Palestinians is about as good as money in a Ukrainian bond. Netanyahu has said, not on his watch, and Herzog has not said. Palestinian leaders, especially in Hamas, have done nothing to make Israelis feel secure enough to take the gamble. Conditions can always change, of course, but for the foreseeable future, a two-state solution looks dead.

The idea didn’t last long. Thirty years ago, hardly any Israeli Jews supported the creation of a Palestinian state. The only Jewish-led political party to do so was the tiny Communist Party, which garnered only a handful of seats in the Knesset and never joined a governing coalition. Even liberal leaders of Peace Now, the movement that campaigned against Jewish settlements in the West Bank and Gaza Strip, would not come out for a Palestinian state back then, for fear that they would be discredited among the rest of the Jewish population.

A sea change in Israelis’ attitudes accompanied the 1993 Oslo Accords, which won the Palestine Liberation Organization’s recognition of Israel’s right to exist and allowed Yasser Arafat and other PLO leaders to come in from exile to set up an interim administration in a patchwork of areas in the West Bank and Gaza. Serious negotiations were launched with the ultimate goal of two states living peacefully side by side.

Public opinion polls showed a sudden jump in the percentage of Israeli Jews supporting Palestinian statehood: to 46.9 percent in 1994, fifteen months after the accords were signed.

Iran: Threatening and Threatened

By David K. Shipler

            Why would hardliners in Iran want to forego the prospect of becoming a nuclear power, especially when faced with hardliners in the United States and Israel, both in possession of nuclear weapons? The question is raised again by the condescending little lecture on the American constitutional system, delivered by 47 Republican Senators in the form of an open letter. Without Congress or the next president’s approval, they told Iranian leaders, no agreement by President Obama would by honored by Washington.

            Undermining the full faith and credit of the United States has now been extended from financial matters to foreign policy. Republicans, who lament our supposedly weak president, work relentlessly to weaken him. (Don’t think Vladimir Putin fails to take notice.) And while I admit to knowing no more about Iran than any informed citizen—never having been there and having read too little about that complicated country—I really wonder why policymakers there would want to take the huge gamble of abandoning their weapons program when their apparent enemy the United States cannot be counted on to uphold its side of a bargain.

            Yes, Iran would like to get out from under the crippling sanctions, which have grown internationally and strengthened during Obama’s tenure. They deny Iran markets for its oil and access to international financial institutions. Yes, Iran’s theocracy is tempered by cross-currents of moderation among those partial to opening the country to Europe, the United States, and the rest of the industrialized world. And yes, Iran has refrained from actually going nuclear, notes Gary Sick, an Iran expert at Columbia, despite its reported ability to do so for the last decade. “The entire U.S. intelligence community and most of our allies—apparently including Israel—have concluded with high confidence that Iran has not made a decision to build a bomb,” Sick writes.

            Why not?

Policing in Blue and Black

By David K. Shipler

            The most racist institutions in America are police departments. Decades after the military launched sophisticated efforts to train and educate in cross-racial interaction, long after colleges and corporations saw their interests served by diversifying and managing relations within their communities, many police forces remain impervious to revisions of attitude that followed the civil rights movement. Especially in small cities and counties, but even in pockets of larger urban departments, racial stereotyping governs many officers’ assumptions and behavior.

So the Justice Department’s devastating report on the department in Ferguson, Missouri, comes as no surprise to anyone who has researched the problem or, more vividly, has lived it.    African-Americans who encounter white cops—and sometimes black cops—have been telling the rest of us horror stories steadily, in between the egregious beatings and killings that periodically prompt us to rediscover the affliction, conduct investigations, promise reform, and then move on.

If the Justice Department wants to make real change this time, it would take a leaf from the Defense Department’s book. At Patrick Air Force Base in Florida, the Pentagon runs a sophisticated set of trainings for officers and enlisted personnel at the Defense EqualOpportunity Management Institute (DEOMI), which also conducts surveys into the climate between races and genders in military units. Nobody would pretend that DEOMI has erased racial tensions in the services—or sexual assault, obviously—but it has helped open the lines of confrontation with those issues, and it has populated the ranks with people who get it.

Crossing Israel's Demographic Divide

By David K. Shipler

            On some unknown day in some recent year, according to the most reliable estimates, the demographic scales were tipped by the death of an Israeli Jew or the birth of an Arab baby. The Jews lost their majority in the ancient, weary land between the Jordan River and the Mediterranean Sea as the number of Arabs reached parity with the Jewish population, at 6.1 or 6.2 million each, depending on who’s counting. Every Israeli knew that the day was coming, but few noticed its stealthy arrival under the camouflage of their twilight war with the Palestinian Arabs, which has blurred visions of the future.

            Now what is to be done? That is the profound question for Israel, one that Prime Minister Benjamin Netanyahu seems ill-equipped to address, despite his many years in office. It is the question that will lurk behind his speech to Congress on Iran’s nuclear ambitions, because the answer—whatever it may be—is equally critical to Israel’s survival as a democratic sanctuary.

            Will Israeli Jews, as a minority going forward, continue to dominate the Arab majority? Will the current hybrid of military occupation and hostile disengagement continue endlessly, or will an exit be found? Will that exit create two states side by side, and will they exist in accommodation or ongoing violence? Or will the “solution” be one state? And if so, what would that state look like with an Arab majority and a Jewish minority? Would all Arabs, including those from the West Bank and Gaza, enjoy equal citizenship in a full democracy, as Arab citizens of Israel technically do now? If so, they will outvote the Jews, and the character of Israel as a Jewish state will be lost. If not—if Arabs are consigned to a lesser status of limited rights—will the uneven relationship justify the hateful a-word, “apartheid,” already thrown about loosely by anti-Israel zealots?

Do Not Go Gentle Into That Good Night

By David K. Shipler 

            The phone at Ed Walsh’s Jerusalem home rang during a small dinner party one evening in the early 1980s. He was the Washington Post’s bureau chief, but the call was for me. In those pre-cell phone days, I made it a practice to let the New York Times Foreign Desk know where I’d be and how to reach me.

            Ed said I could take it in his office, which was near enough to the dining room that the guests could hear my end of the conversation. An editor in New York wanted me to expand on a short piece I’d done on a small and insignificant event. They were considering it for the front page.

            No, I said, please don’t. It will send readers the wrong message. It will inflate the importance of a minor incident. I no longer remember exactly what it was: perhaps a cabinet minister threatening to resign from the governing coalition, which always got New York excited although it was the Israelis’ routine method of conducting politics. Or, it might have been the time when a couple of Palestinian would-be terrorists crossed the well-patrolled border from Jordan into the West Bank, prompting a manhunt by the Israeli army, which caught them before they launched an attack. In any case, it needed to be reported but certainly didn’t rise to the level of major news, and I managed to talk the editor down from the height of what would have been embarrassing hype.

            I returned to the table to see quizzical looks from a couple who were not journalists. Five minutes later, the phone rang again. This time it was for Ed, and we could hear him in the same conversation, working to dissuade his editor in Washington from overplaying the story. When he came back, one of the non-journalists laughed in amazement: I thought you guys were always pushing to get ONTO page one, and here you were trying to stay OFF!

On Obama: The Virtue of Doubt

By David K. Shipler

            President Obama deserves praise, not criticism, for the views on Afghanistan attributed to him in former Defense Secretary Robert Gates’s memoir. In the book’s most quoted lines, Gates writes of a meeting in March 2011, “As I sat there, I thought: the president doesn’t trust his commander, can’t stand [Afghanistan President Hamid] Karzai, doesn’t believe in his own strategy, and doesn’t consider the war to be his. For him, it’s all about getting out.”

Gates doesn’t mean this as a compliment, but if it’s accurate, then two cheers for Obama. It’s just too bad his actions didn’t coincide with his doubts—a familiar pattern.

Let’s take Gates’s observations one at a time:

Obama was obviously right to distrust his commander, David Petraeus, who was felled the following year as CIA director by an extra-marital affair, and whose counterinsurgency brilliance was always overstated. Petraeus was a charming man of poor judgment.

Obama was justified about Karzai, who has proved to be a puppet without strings—a self-absorbed enabler of corruption who cannot govern his country or practice sensible diplomacy with his chief benefactor.

Obama was correct in not believing in “his own strategy” of beefing up troops in Afghanistan, articulated during his 2008 campaign.

The Thirteen Lessons of 2013

By David K. Shipler

            1. Every solution creates at least one new problem. (Obamacare.)

            2. The natural alternative to autocracy is more autocracy, not democracy. (Egypt.)

            3. The initial result of revolution is anarchy. (Syria, Libya.)

4. Radical ideas can survive the ballot box. (Tea Party.)

5. The threat of compromise is less satisfying than the threat of warfare. (Iran, Israel.)

6. Racism is animated, not eliminated, by electing a black president. (Obama.)

The Immortality of Presidents

By David K. Shipler

            History is supposed to have an unerring eye for ultimate accuracy. From the distance of time, historians are expected to act as the final judges, to cut ruthlessly through to the truth. It is fitting to reflect on this now, during a week of renewed mourning for President John F. Kennedy, who was felled in Dallas by an assassin half a century ago.

He and Jackie were dazzling. They tapped Americans’ vestigial yearning for royalty, the excitement of stylish celebrity, and the deep need for optimistic commitment to high purpose. Yet as popular as Kennedy was—his Gallup approval rating averaged 70.1 percent—he was never so widely admired as he became after his death. Indeed, Gallup’s graph of his rating shows a gradual, yearlong downward slope to 58 percent the week before he was killed—still higher than President Obama has enjoyed since the first six months of taking office, but a significant decline nonetheless. It followed a sharp bump up 13 months earlier after JFK faced down the Soviet Union in the Cuban missile crisis. (Presidents’ percentages typically rise after a national security crisis, as Franklin D. Roosevelt’s did after Pearl Harbor and George W. Bush’s following 9/11.)

One is tempted to wonder what course the line on that graph would have taken had JFK lived and had been able to win a second term.

Food Stamps: The Chain Reaction

By David K. Shipler

            Let’s give the Republicans in Congress the benefit of the doubt. (Yes, I hear the groans, boos, and catcalls.) But let’s be charitable for a moment and assume that they had no idea, when they allowed severe cuts in food stamps to take effect today, that they were damaging the brain development, lifelong cognitive capacity, and therefore the future earning power of untold numbers of American children. If they had known, surely the legislators would not have done what they did.

            That may sound like an overstatement until you look at the science or, more broadly, the interaction between economics and biology.

            The chain reaction between early malnutrition and various intellectual and behavioral deficits has been well established by neuroscience. Extensive documentation, in readable form, can be found in a thick digest of studies published in 2000 by the National Academy of Sciences, with the provocative title From Neurons to Neighborhoods. The research has been updated since in scholarly papers and conferences.

            Inadequate iron and other nutrients during the critical periods of brain development—especially the second and third trimesters of pregnancy and the first two years after birth—damages the complex, overlapping processes of growth.

Why is the United States Too Big to Fail?

By David K. Shipler

It’s not our fault. We can’t help it that others are less worthy, with flawed values, weak currencies, lame economies, oppressive politics, and anemic militaries. We Americans can hardly be held responsible for being “exceptional,” a relative term, after all. It’s no badge of honor to be exceptional in such a world, I’ll tell you.

If you want to blame us, blame us for being too good. Blame us for being the land of opportunity and justice and unbridled freedom, for being a frontier on which the humblest masses can carve prosperous futures. Blame us for doing battle for human rights and personal dignity around the globe. Blame us for thinking up solutions and then putting them into action. Blame us for winning all those Nobel Prizes every year.

And if you believe all that—if you see our Nobel brilliance and don’t recognize our political ignorance—it's not our fault. It’s the fault of those who imagine an America too beautiful to exist. It’s the fault of those who think—or who once thought—that everything that we have said about ourselves is true. It’s the fault of those around the world who desperately yearn for us to be a perfect beacon, and who feel lost and frightened when the light dims and flickers. People hate us when we fail to be what they want us to be. They need heroes.

The Navy Yard and the NSA

By David K. Shipler

            With Congress locked in an ideological impasse, the U.S. government may look weak and bumbling, but it has never been more powerful in collecting personal information about Americans and foreigners—the guilty and the innocent alike. So how was it that the Navy knew less about Navy Yard shooter Aaron Alexis than the press was able to learn in a few hours? How come Alexis kept his Secret clearance despite police reports that he twice fired a gun, claimed to be hearing voices, and thought his brain was being manipulated by extra-low frequency radiation?

How did the Boston Marathon attackers escape detection, when one of them had been called to the FBI’s attention? And the would-be Christmas Day “underwear” bomber after his father warned the U.S. embassy in Nigeria? And—given the global reach of the National Security Agency—the al-Shabab squad in Nairobi’s Westgate Mall? The answers are specific to each case, but among them is this: A dozen years after the 9/11 attacks, the government has still not learned the central lesson of that failure, which is not about amassing information but, rather, how to connect the dots among disparate points of data that have been filtered and focused. The lesson has remained unlearned partly because the indiscriminate collection accumulates unprocessed information so rapidly in such volume as to be practically useless.

Marching on Washington

By David K. Shipler

            We were the only whites on the bus, my mother and I. And when a matronly woman came down the aisle taking names and addresses to be sure she had a complete roster, we gave her ours and received a surprised, joyous reaction.

            We came from the next town over, Chatham, N.J., known as an all-white community whose real estate agents and homeowners were only just beginning to come under pressure to allow blacks to buy and rent property. There was no covenant, but anti-discrimination housing laws had not yet been passed, and excluding minorities was a legal practice in towns and neighborhoods across the land. My middle-class commuter town had a reputation as a white spot alongside its racially diverse neighbor, Madison, where we had boarded the bus for the March on Washington.

            So when we said, “Chatham,” the astonished attendance-taker beamed and chirped, “Well, welcome, Chatham!” Other passengers turned and gave us the biggest smiles I’ve ever gotten on a bus to anywhere.

Absolutists and Democracy in Egypt and America

By David K. Shipler

            It is time to draw a new political spectrum, one that doesn’t go from liberal to conservative. A useful alternative is to put Absolutists at one end and Opportunists at the other. In both Egypt and the United States, we are seeing struggles between these extremes, while people in the middle—principled yet open to conciliation—find themselves on eroding ground.

It is distasteful to compare Egypt with the United States. We Americans are accustomed to watching with patronizing dismay as emerging democracies falter, pick themselves up, stumble forward, or slide backward into some variation of the authoritarian system they have just thrown off. We think we have something to teach them, and we do. But they have something to teach us, too, often in the form of a cautionary tale.

Egypt’s Muslim Brotherhood, which dominated elections, made the classic error of newly minted leaderships: It thought that winning the vote meant that they could ignore those who voted against them and could govern without compromise, without regard to minority rights or interests. The Brotherhood adopted a constitution rigged against the secular, displayed tolerance for intolerance toward the Coptic Christian minority, marginalized the political opposition, and indulged in xenophobic prosecutions of foreign non-profits that were trying to help Egyptians construct a pluralistic democracy—yes, trying to promote democratic institutions!

 In short, the Absolutists held sway—for a time. Absolutists are like marbles thrown into the gears of democracy. They halt and damage the mechanisms of political pluralism. They rob from governing all that is supple and fluid. The state becomes brittle. It’s worth remembering that what is brittle tends to break.

The United States has its Absolutists, of course. Mostly they’ve been at the edges of politics, relegated to insignificance at both ends of the traditional spectrum. But now, from the right, they come to Congress from districts drawn to make sure that no Republican primary will nominate anyone suspected of moderation. And once in Washington, they have shown as much iron determination, as much unyielding devotion to principle, as the Muslim Brothers have in Cairo.

Such invidious comparisons are unattractive, unfair, and overdrawn—I know. But only because the United States has what Egypt does not: a tempered democracy, a seasoned political culture and a superstructure of institutions to balance and check and impose measured judgments. In among these hard pillars of democratic tradition flow the soft values of negotiation, compromise, and regard for the common good—or so it has been until recent years.

Absolutists have been dominating Congress. As the majority in the House, and as the minority in the Senate, Absolutist Republicans have slowed and halted the workings of government.

They have exercised their prerogatives in the Senate, through the filibuster, to obstruct a wide swath of President Obama’s perfectly qualified nominees to key agencies. And why? Because these nominees are corrupt? Incompetent? No. Because the agencies they lead would follow policies that don’t suit the extreme right. So obstreperous have Absolutist Republicans become that Democratic Majority Leader Harry Reid has been driven toward the heretical option of limiting filibusters. 

In the House, Absolutist Republicans pass measures they know cannot be enacted—repealing Obamacare, separating food stamps from farm assistance—and yet refuse to consider compromises worked out carefully across the aisle: immigration reform, for example, as passed by the Senate. Nothing is negotiable to the Absolutists,  despite pleas some of their Republican brothers and sisters that the party will fail to win Hispanic voters without conciliatory change on immigration, as bill passed by the Senate.

A New York Times editorial the other day summed it up nicely: “These actions show how far the House has retreated from the national mainstream into a cave of indifference and ignorance.” Substitute “the Muslim Brotherhood” for “the House” and you’d have had a good analysis of Egypt.

The Republicans look as if they are still fighting the last election, still opposing everything that Obama proposes because Obama proposes it. Let’s hope the President doesn’t declare that the sun will rise tomorrow.

 Of course both Absolutists and Opportunists come in many forms. Absolutists may be political, religious, moral, or simply selfish. Opportunists may be gutless, amoral, or simply selfish. There are Absolutists and Opportunists on both the left and the right of the traditional political spectrum.

And then there are the negotiators, the conciliators, the people who respect others’ views, who listen well, and who try to find compromises that will work for most of the country most of the time. Most Democrats at the moment tend to fit this profile, because their constituencies are diverse. Obama, too, has tried to hold this center space between the Absolutists and the Opportunists—sometimes to the great disappointment and anger of his supporters who want more principle and more backbone.

It’s a delicate dance. It would be good to believe that most voters in both the United States and Egypt prefer that middle part of the spectrum where constructive governing can be accomplished. That cannot be done in the streets.

Frozen Scandals and the Myth of Self-Correction

By David K. Shipler

            Perhaps it’s premature to say, but it seems likely that Edward Snowden’s enormous sacrifice will be in vain. In the pattern of recent leakers and whistle-blowers before him, his damaged life will have no compensation in the form of revised policy. Nothing will change. So it has been with the likes of Thomas Tamm, Thomas Drake, and others who didn’t go to jail as Army private Bradley Manning will, but suffered the destruction of their careers for the sake of informing an American public that basically didn’t care about the wrongdoing they exposed.

This is the phenomenon of the “frozen scandal,” as Mark Danner described it brilliantly in 2008, in The New York Review of Books:

“We remember, many of us, a different time. However cynically we look to our political past, it is there that we find our political Eden: Vietnam and its domestic denouement, Watergate—the climax of a different time of scandal that ended a war and brought down a president. In retrospect those events unfold with the clear logic of utopian dream. First, revelation: intrepid journalists exposing the gaudy, interlocking crimes of the Nixon administration. Then, investigation: not just by the press—for that was but precursor, the necessary condition—but by Congress and the courts. Investigation, that is, by the polity, working through its institutions to construct a story of grim truth that citizens can in common accept. And finally expiation: the handing down of sentences, the politicians in shackles led off to jail, the orgy of public repentance. The exorcism of shame, the purging of the political system, and the return to a state, however imperfect, of societal grace.

The "Expectation of Privacy" and Surveillance in the 21st Century

As published at thenation.com June 17, 2013

By David K. Shipler

In 1928, the Supreme Court ruled that no warrants were needed for police to listen in on phone conversations, because voices were transmitted outdoors, beyond the private property that was protected by the Fourth Amendment. “The language of the amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office,” the majority wrote in Olmstead v. United States. “The intervening wires are not part of his house or office, any more than are the highways along which they are stretched.”

If this sounds absurd, we can hope that today’s arguments on the forfeiture of privacy in a digital age will someday sound equally ridiculous. The telephone was still a relatively new technology in 1928, as cellphones and the Internet are today, and the law had not yet adjusted to its use. It took thirty-nine years for the Supreme Court to catch up with the times and reverse Olmstead. In Katz v. United States, the Court devised a new test to determine the Fourth Amendment’s jurisdiction—“first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable,’” as Justice John Marshall Harlan II wrote in a concurring opinion. Thereafter, wiretaps required warrants.

DNA: The Tilted Supreme Court

By David K. Shipler

             Four years ago, the Supreme Court ruled 5-4 that people who proclaim their innocence have no constitutional right after their convictions to demand that DNA tests be done on the evidence in their cases, although plenty of guilty verdicts for rape and murder have been thrown out because mismatches have later been discovered. Yesterday, the Court ruled 5-4 that people arrested for “serious” crimes have no constitutional right to withhold their DNA from the police, even though the DNA is used for fishing expeditions into unsolved crimes unrelated to the reasons for the arrests.

Together, the two rulings create a tilted playing field in the criminal justice system: The individual is compelled, but the state is not. Anyone taken into custody (and presumed innocent) is compelled to give up his DNA at the outset but after conviction cannot compel prosecutors to give up the DNA found in the semen, blood, or other tissue from the crime scene.

The prosecutors’ obligations to test evidence for DNA rest in a variety of state laws, the Court decided in 2009, not in the Constitution’s guarantee of due process or the defendant’s right to summon “witnesses in his favor,” as the Sixth Amendment provides. The state laws are a mixed bag, and not always much protection; some deny convicts’ right to DNA if they confessed, although about one-quarter of the convictions reversed on the basis of DNA evidence involve false confessions, the Innocence Project reports.

The odd result is that the Court finds DNA the quintessential identifier in one ruling and a dispensable piece of evidence in the other. It is critical when it serves the state and merely optional when it serves the individual. This hypocrisy is mirrored by many prosecutors across the country who hail the precision of genetic coding to discover the criminal, yet resist its use to exonerate the wrongly convicted.

The inconsistency, the failure to bolster the system’s truth-seeking purpose, is reflected by the most colorful Justice, Antonin Scalia, who has been on both sides of the question. He joined the majority in the 2009 decision denying convicts the right to test crime-scene evidence, but in the latest case, Maryland v. King, he blustered sardonically in an entertaining dissent against the majority’s decision to uphold the Maryland law—which had been struck down by the state’s Supreme Court—requiring DNA to be taken without a warrant after an arrest. He warned of sweeping consequences, and he may be right.

Courts usually proceed incrementally, each decision building on precedent, and with DNA collection now approved for those arrested and presumed innocent, it will be a smaller step to wider use, as Scalia noted. DNA is a tool of infallible identification, after all. Why not require it for a driver’s license, for passing through airport security, for enrolling in public school? If lab techniques improve to speed up processing and reduce cost, a national database containing everyone’s DNA will someday be conceivable, and probably less constitutionally dubious than before this ruling. 

That cuts a chunk out of the Fourth Amendment’s provision for “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Taking a swab from inside a person’s cheek is a “search” under the Fourth Amendment, both sides agreed, and the majority found it reasonable. The trouble is, under judicial precedent a search normally requires individualized suspicion to a degree that depends on the circumstances—to search your home, for example, requires probable cause and a warrant signed by a judge; to frisk you without a warrant as you walk down the street requires a police officer’s “reasonable suspicion” that you are armed.

The Fourth Amendment has been chipped away as more and more suspicionless searches have been allowed by the Court, often with Scalia’s acquiescence: He voted for random drug tests of children in school choirs and other extra-curricular activities, for instance. The erosion has been helped along by the supposedly liberal Justice Stephen Breyer, who puzzled some commentators by joining with the majority on taking DNA after arrests. But nobody should be confused. Breyer has never been a big defender of the Fourth Amendment. He also endorsed suspicionless drug testing of schoolchildren, which prompted the plaintiff who lost, Lindsay Earls, to challenge him politely several years later. When Breyer visited Dartmouth, where she was then a junior, she asked whether justices ever recognized that they’d made a mistake. Yes, Breyer answered, “but not in your case.”

The Fourth Amendment was written as a bulwark, but it has proved a fragile restraint in an age of easy digital surveillance, biometric advances, and sweeping concerns about crime and terrorism. “I don’t think that there’s much left of the Fourth Amendment in criminal law,” Federal District Judge Paul L. Friedman told me several years ago—a startling statement from a respected judge who presides over drug and gun trials.

So behind this fading shield, DNA is a double-edged sword, useful to prosecutors and defendants alike—provided they can both wield it equally. In the small fraction of crimes where DNA is available, it is a marvelous tool for getting to the truth and reducing errors, for identifying the rapist and murderer, and for freeing the innocent.

But that won’t work if the DNA database contains evidence from only unsolved crimes. If we’re going to check all arrestees’ DNA, we also need a database of evidence from crimes we think we’ve solved, so that erroneous convictions can be uncovered. The law enforcement officials celebrating yesterday’s ruling would earn some integrity by pledging to establish such a resource. 

Obama's Search For the Next Era

By David K. Shipler

            Perhaps the most salient element in President Obama’s speech on national security last week was his attempt to begin weaning the United States from its post-9/11 mindset. If he pursues the effort and revises policy accordingly, he might help the country move away from fear and back toward the constitutional principles that have been sacrificed unnecessarily. This would end an era that is begging to be left behind.

            But his record has not been encouraging, and the environment he faces is not helpful. The problem is a mixture of reality and beliefs. Fear has to abate, but it won’t when real terrorism maims and kills at a Boston Marathon, or when the word “terrorism” is applied too broadly, as Republicans and some conservative pundits demand. Hardly anyone is comforted to learn, as Obama explained, that the threats now come from atomized al-Qaeda offshoots and radicalized individuals, rather than by centralized direction.

Yes, as he noted, that looks more like the baseline of terrorism the world has endured since long before 9/11. But it is not enough for Obama to say so. As he may have learned from earlier attempts to change emotional dynamics through speechmaking, actions speak louder than words. His well-crafted 2009 Cairo speech extending an open hand to the Muslim world was not followed by intensive, inventive policy. Four years later, on the other hand, his recent address in Jerusalem on Israeli-Palestinian peace is being followed by Secretary of State John Kerry’s shuttle diplomacy—a good effort whose outcome is not yet clear.

So let’s see if Obama follows his words on national security. He might consider how his administration’s behavior contributes to the problem of belief—namely, the public’s belief that we are still in the war whose end he now wishes to declare.

Taxes and Politics: The IRS Befuddled

By David K. Shipler

            The Internal Revenue Service looks more befuddled than partisan when it comes to enforcing the federal prohibition against mixing political activity with the benefits of tax-exemption—a concept introduced into law in 1954 by Sen. Lyndon B. Johnson to help himself in a tough reelection campaign.

In practice, the statute has been widely ignored, even as conservative churches have made repeated efforts for years to provoke the IRS into withdrawing their tax-exempt status so they could challenge the law’s constitutionality in court. In the run-up to the election last fall, right-wing preachers denounced President Obama from the pulpit, endorsed conservative candidates, and urged parishioners to campaign and vote against politicians who favor abortion rights and same-sex marriage—and publicized their sermons widely to spark a reaction.

It hasn’t worked. The IRS has not taken the bait, at least so far, and the recent tempest makes it even less likely that the agency will gather its courage in the face of a well-organized conservative movement.

Human Rights: Wiping Away the Smirk

By David K. Shipler

            It used to be sadly comical when Russia took a holier-than-thou posture on human rights. But the United States has fallen so far that Americans don’t get to smirk much anymore. In the recent tit-for-tat over rights abusers who are being declared unwelcome in each other’s countries, at least three of the former top U.S. officials fingered by the Russians are, in fact, true violators of basic liberties. They have been branded legitimately. In the aftermath of today’s bombings at the Boston Marathon, it is worth remembering how easy it is, in the face of such tragedy, to deviate from the rule of law.

            The three are David Addington, Vice President Dick Cheney’s legal counsel, who evaded the law and the Constitution to engineer torture and illegal surveillance; John Yoo, who wrote infamous memos for Bush’s Justice Department defining torture so narrowly as to give the CIA practically a free hand; and Geoffrey D. Miller, who as an army major general commanded both Guantanamo and Abu Ghraib prisons, where suspects were abused and humiliated, generating iconic photographs.

            They are among the eighteen Americans listed by Russia.

The NRA's Dark America

By David K. Shipler

            Years ago, driving through the Wild West Bank, I was stopped by an Israeli army checkpoint on the road up the Jordan Valley. The young soldier asked if I had any weapons in the car. No, I said. Well, in that case, he advised, it would not be a great idea to continue.

            That’s the kind of America envisioned by the NRA: Don’t send your kids to schools where teachers can’t sport .45 Magnums on their hips or keep Tec 9s in their desks. Don’t lull your kids into thinking there are safe places, free from marauding crazies, where they can concentrate on learning. Remind them every moment of every school day how scary the world is, how vulnerable they are, how consistently high their stress and sense of danger should be. Beginning in their early years, keep those cortisol levels elevated to make sure they greet every affront as if it’s a dire threat. With teachers as role models, every kid will want to carry a weapon. What a wonderful country we’ll have.

Fifty Years Later: Will You Get a Good Lawyer?

By David K. Shipler

Adapted from Rights atRisk: The Limits of Liberty in Modern America

            Will you get good lawyering if you can’t afford it? Maybe, depending on where you’ve been charged. The quality of your legal defense will be determined, like the value of real estate, by three factors: location, location, and location.

            Fifty years today, the Supreme Court ruled unanimously in Gideon v. Wainwright that indigent defendants are denied their Sixth-Amendment guarantee of “the Assistance of Counsel” unless government provides them with lawyers. In practice, however, the effect of the ruling has been very spotty, creating a patchwork across the country. You’re better off in Washington, D.C., for example, than in parts of Texas and Georgia; anywhere in Alabama; and certain counties of New York, Michigan, and Pennsylvania. You’re usually more fortunate in federal than in state courts, and in local jurisdictions where indigent defense is funded by states rather than counties.

            Ask Anthony Ray Hinton. He has been sitting on Alabama’s death row since 1986, when his court-appointed lawyer was given only $500 to hire a reputable firearms expert to dispute the questionable findings of a police lab. The “expert” he found on the cheap, a one-eyed retired engineer who couldn’t operate a comparison microscope, had jurors laughing in ridicule.

Voting By Tax Return

By David K. Shipler 

            Years ago, my wife’s parents wrote on their tax return, “For use in the national parks only.” It made them feel better.

            Wouldn’t this be fun? What if, when we sat down to do our taxes, we discovered a new section on our 1040s that listed government programs, with a blank space beside each one? We’d write in the percentage of our tax payments that we wanted to be spent on defense, foreign aid, food stamps, housing subsidies, education, border security, and the like. Very empowering. It’s worth wondering how it would alter the federal budget. Polls give us a clue.

Medicaid: An American Parable

By David K. Shipler

            Watching the Republican governors who still insist that they will not accept a penny of the federal government’s money to provide health insurance to their near-poor citizens brings to mind Alexis de Tocqueville, the French historian who traveled in the United States in 1831. He saw a country honeycombed with generosity taking the form of myriad associations organized to promote one worthy cause or another.

What he chronicled in his work, Democracy in America, has come down to us as evidence of our powerful impulses to charity, to philanthropy, to the common good—so much so that today, United Way chapters present annual Tocqueville awards to honor individuals who have been exceptionally generous with time or funds.

To be sure, Tocqueville was not a big-government advocate. He admired citizen-led private efforts over those that came from above. “Wherever at the head of some new undertaking you see the government in France or a man of rank in England,” he wrote, “in the United States you will be sure to find an association.”

But for a modern society, intricate with technological and economic complexity, this observation raises two questions: one practical, one moral. What mechanism is most practical in, say, the area of health care? What can be done privately, and what must be done publicly? And where does moral responsibility lie? Only at the local level of community, or on the broader plane of national concern?

These are the elements of our most acerbic debates as we struggle and disagree over where to locate the shifting line that should divide the private from the public.

Targeted Killings: Justice is Relative

By David K. Shipler

            A dozen years ago, the notion that a named American overseas could be legally targeted for death on the say-so of any “informed, high-level official of the U.S. government,” as the Obama administration now argues, would have been patently absurd. The constitutional requisite for due process in which government allegations are challenged and tested and never taken for granted remained largely intact. Only in the heat of combat was the commander in chief entitled to exercise lethal power. Otherwise, death sentences were handed down from the courtroom, not from the Oval Office.

            But the country has fallen so far to the right on national security since 9/11 that anything less than autocracy seems reasonable and moderate. So it is with a new proposal, put forth by Sen. Dianne Feinstein, to involve the judiciary in the secret process of assassination. It is a mark of the age that what was once unthinkable becomes sensible. If the rule of law interferes, change the law. But if history is just, it will not judge us kindly.

The Other Vietnam Veterans

By David K. Shipler

            With John Kerry confirmed for Secretary of State and Chuck Hagel in hearings to become Secretary of Defense, much is being made of the breakthrough that they represent: the first time that veterans of the Vietnam War will have occupied those two senior cabinet positions. These men, each sobered in his own way by combat, know the miseries of warfare, and seem to have absorbed their lessons.

            But outside the glare of this spotlight on uniformed veterans, there are other Americans, those who went to Vietnam out of uniform, who also saw the miseries close at hand as they tried to do some good for ordinary people. I have watched recently as a farflung community of those invisible Vietnam vets have connected by Internet because one of them is dying. They are sharing reminiscences, are writing about the traumas they still carry, and are reaffirming the moral opposition to the war that moved them to activism decades ago.

Some avoided the war by persuading their draft boards that they were conscientious objectors, and then went to Vietnam anyway, in civilian clothes and unarmed.