Just Books

Filibusted! A Conversation With Greg Koger

08/10/10

Greg Koger, the author of Filibustering: A Political History of Obstruction in the House and Senate, talks to Just Books' Mimi Marziani about the filibuster -- and its use and misssue.

Mimi Marziani: In recent years, use of the filibuster has exploded – and sparked a vigorous public debate. How does your book contribute to the discussion on the filibuster?

Greg Koger: A major contribution is my study of both chambers of Congress during the 19th century. The House actually had much more obstruction than the Senate during the 19th century. It goes through the cycle of growing filibustering, and then by the end of the 19th century, the House is eventually paralyzed by filibustering -- the way many people complain about the Senate now. Since a lot of rhetoric about filibustering is based on loose historical claims, its aim is to nail down the history of filibustering.

And I offer a description of the emergence of the modern Senate. Neither of the previous books on the topic explains how we get from the Senate of the 1900s to the Senate of 2010. So, that is one of the main academic contributions -- telling the story of the Senate transition.

We’re at a time in the Senate in which people respond to the number of filibusters; historically this has not had any effect on the filibusters and may have facilitated filibusters by making them easier.

MM: As you know, the term ‘filibuster’ is broad and refers to almost any tactic strategically employed to obstruct legislative action. As a result, its hard to measure filibusters in an objective way. How did you choose to measure filibusters and why?

GK: For the historic Senate, I didn’t have very high-quality secondary sources, so I looked for first-hand evidence that filibustering was going on. And on top of that, I had a strong idea, based that most of the filibustering that was going on included tactics that were easily measureable in the Congressional Roll Call record. That is, calling for votes on procedural questions just to chew up time. The disappearing quorum is another useful, measurable, tactic. It is when legislators refuse to vote as a strategy to break a quorum, to prove that there aren’t enough people there to make a decision. Then that brings the chamber to a halt. These are things that I looked for in the Roll Call record, in the House and Senate. That was my strategy for the 19th Century.

In the 20th Century, filibustering in the House had been clamped down. And Senators became more inclined to use speaking, rather than dilatory methods and disappearing quorum, as their method of choice.

I literally went through The New York Times database and looked for articles that had the words ‘Senate’ and ‘filibuster’ in them. I supplemented that by going through the Times magazine online database and some Congressional Quarterly publications, as well, looking for the word ‘filibuster’. I was using over 7,000 articles with the word ‘filibuster’ in it from the 20th- and 21st centuries.

MM: NYU Law professor, Rick Pildes, says today’s homogenous, hyper-polarized parties can’t be compared to the parties that existed before the 1964 Civil Rights Act. Pildes believes that today’s polarization is much more extreme and he believes that it is directly linked to the increase in filibusters and other types of obstruction. How do you respond to that?

GK: Polarization was high at the beginning of the 20th century. This is not just my impression. I am relying on conventional measurements of partisanship used in political science research for years, particularly party unity in Congress – that is, the extent to which party members in Congress vote together.

Keith Poole and Howard Rosenthal created a new measure that’s gotten a lot of recent attention. Their polarization scores are based on complex algorithms by which they attempt to determine the ideology of the members of Congress. Sure enough, if you look at the last forty years, you see a growing polarization in Congress. But if you go back historically, you see that at the turn of the century—the end of the 19th century, early of the 20th century—was also a peak time of polarization. These are conventional measures. And they coincide with what a lot of historians and political scientists who study party history know about parties at the end of the 19th century, eginning of the 20th. Namely that they dominated the function of Congress, that a lot of the fighting and conflicts that go on within Congress between party leaders and the mass public, parties were highly hyper-developed. Every person felt obliged to declare loyalty to one party or the other; they completely controlled nominations.

It is true that if you compare the parties of 1963 to the parties of 2010, things look a lot more polarized. Ultimately the question is: If I use data from the early 20th Century, what does that tell us about filibustering? And what it tells us is that there is no single link—no causal link—between partisanship per se and filibustering.

Meanwhile, if, for other reasons, there is an increase in filibustering over time—and I identify those other reasons—it makes sense that as the Senate becomes more polarized, that filibusters are more likely to fall between party lines rather than to pitch regions against each other. This is what we saw when the Southerners filibustered against the rest of the country on civil rights. Also, at that time you saw much more ideological filibusters where there would be a small group of Democrats or Republicans who are fighting together against the rest of the Chamber—you see fewer of those now-a-days. It is mostly about one party, usually a minority party, not liking what another party is doing. Those conflicts between parties are not new to Congress. What is a new development in the Senate, historically speaking, is that it is relatively easier for a minority party to exercise this opportunity to filibuster.

MM: When you have a minority party that acts in lock-step, the filibuster can become a more powerful weapon. It can be more powerful in a way that a minority veto could not have been when you had maybe more factions.

GK: Right. One thing that may have changed, in addition, is that during the ‘70s and ‘80s it was probably easier for the majority party to buy off, or bring in, some segment of the minority party, and then to filibuster. Polarization, perhaps, has more of an effect on the Senate because it is harder to get the votes to end the filibuster.

MM: In your view, the scarcity of floor time in today’s Senate is connected to filibustering. Could you explain that?

GK: Senators are more likely to filibuster if the costs of doing so are low—that’s a simple idea, right? So, start with the idea that Senators are more likely to filibuster if it is easy to do so. And so, as costs decrease, we will observe more filibustering.

So, the big change in costs is a change in tactics used by the majority of the Senate against the filibuster. It used to be that the tactic of choice was attrition—just wait it out, if someone wants to delay a bill, just sit down and watch them speak -- which is sort of nicely illustrated in the movie Mr. Smith Goes to Washington. The one Senator with the small team will get exhausted and collapse, and the other team will win.

And so, in that old-style type battle, you would only see the minority winning if time was especially precious. Or, when there was a very large group of people working together to delay things. This is why Southerners were very effective. There were, say, 20 of them in a civil rights fight and they were very well organized and willing to stand and speak day after day.

Once Senators stopped waging these old-style attrition battles, they significantly decreased the costs of a filibuster. Somebody who is thinking of filibustering no longer has to say to him or herself, ‘do I really want to be on the Senate floor day after day?’; ‘do I really want to take a public stand against this bill which may be popular?’ Take that out of the equation and, you know, it seems a lot easier—lower cost—to filibuster.

MM: And you remove uncertainty, correct?

GK: Yes. In one sense, that uncertainty is reduced in that it is easier to count the votes than it is to count intensity. So if a Senator says, ‘I am going to filibuster against that bill,’ that’s one thing. That’s a unit that you can easily measure, you can count heads, and then have a good idea of whether the bill will pass or not. But if somebody says they are going to stand on the floor and speak against the bill, you don’t really know how intense they are until they actually do it. So, a lot of times when these old school fights play out, there is a lot of uncertainty at the outset about just how serious the other side is.

Now, I am not the only person to have gotten this far, to have said that there has been this tactical shift by Senate majorities, and that it’s easier to filibuster, and that’s why we have more filibusters. The next point is where the book ends up—trying to explain why this tactical shift occurred in the first place. And to go that extra step, you have to think about the value of time for Senators. To wage a war of attrition costs everybody time. Obviously the obstructionist has to be on the floor speaking. So, everybody that is fighting against that filibuster has to be in and around the Chamber. And so, in one of these old school fights—if you watched Mr. Smith Goes to Washington—Mr. Smith is filibustering, but then a majority of the Senate also has to be there all night while he filibusters because Mr. Smith has the ability, in the absence of a quorum, and then everybody sort of has to show up on the floor and say, ‘yes, we’re here,’ if it ever happens.

Well, that’s quite a burden for the people who are fighting the filibuster. And the more often that they occur, and the more valuable the other uses of their time, and the harder it is to actually wage one of these wars of attrition, and so the book gets into the increasing value of their time. So, while I don’t measure this directly -- things that are going on in the 20th century include an increase in the Senate’s workload; the federal government is growing; you have wars to manage. And so, there are other things waiting to come up on the Senate floor. But also, essentially, they have more things they can do with their time. D.C. has become a more livable place. They could be going out and seeing a show. Or, they could stay in the Senate Chamber all night. They could be catching a plane and going back to their home state, visiting with their constituents. Or, they could be leaving the city altogether to speak to party activists for the campaign they hope to wage someday. So, they have other things to do with their time. Their options got a lot better, and the pressures of other topics waiting to come up on the Senate floor increases. It becomes less feasible for them to wage a war of attrition every time some Senator is unhappy with what is going on.

MM: Do you think there is any connection between the campaign finance rules that govern the Senate and the scarcity of floor time?

GK: Yes, I think so. In two ways. Firstly, a lot of a Senator’s time seems to be consumed by fundraising. That makes it harder for them to keep up with their legislative duties, much less wait out a filibuster on the Senate floor. Secondly, the fact that Senators must be responsive to potential donors makes it difficult to compromise when there is a filibuster happening on the Senate floor. This is part of a broader pattern in American politics. The activist and the donor play a large role in who gets nominated, and who gets money to wage a real campaign in American politics. As a result, it is harder to compromise.

MM: Do you think that campaign financing along the lines of public funding would, or could, lead to a decrease in filibusters?

GK: It is possible. If I were trying to make a case for public funding, I would think more broadly that the pressures of fundraising eat up more of the Senator’s time. It is not just the fact that they’re not waging out filibusters. We may imagine that they are going to community meetings, and learning about legislation, and building up votes. And all of the legislative work that we would like them to do competes for a Senator’s time with fundraising. I think there is a broader point to make, not just on filibustering, but on the pressures of a Senator’s time. I would be relieved if they didn’t have to fundraise so much.

MM: There are now a number of ideas for curbing obstruction. What do you think of Senator Tom Harkin’s proposal to decrease the number of votes needed to obtain cloture? And more generally, which ideas for reform do you think have the most hope of being effective?

GK: I am not at all optimistic that the Harkin reform would have a beneficial effect. The problem is that it is focused on changing the cloture threshold. If you want majority rule in the Senate, then let’s completely obliterate the right to filibuster and impose majority rule. If Senators are not willing to do that, then a threshold that gradually reduces the votes, three votes at a time, would probably have the opposite effect of what Senator Harkins intends -- it would invite much more filibustering.

If I were a member of a minority party in the Senate and the Harkin proposal is adopted, I would respond by filibustering everything -- every motion, every bill, every amendment. What you need to understand, is that even on the fourth cloture vote, the majority could out vote me. But by forcing them to cast four cloture votes on everything, I would redeem a great deal of bargaining leverage and get back to at least where I was before. It is the sort of idea that appeals to people who only care about one thing at a time: that one Supreme Court Judge; that one major bill. But when you think about how the rule would apply to a Senate who has to make hundreds of decisions over the course of two years, it would be very ineffective. Think of everything the Senate has to do, and then imagine if they have to go through four cloture votes to do it in this post-Harkin world.

There is this idea that filibustering can actually have a positive effect on promoting compromise, on limiting effects on party leaders, and driving bad legislation from a chamber from time-to-time. Rather than eliminating filibustering, I would promote a mechanism that would reverse the burden filibusters create. Right now, when there is a filibuster and then a cloture vote, in order for cloture to be provoked, 60 Senators have to vote for cloture. I would reverse this and require that 41 Senators have to vote against cloture. It is the same threshold, but it reverses the burden of participation.

MM: I wonder if that would change the accountability.

GK: Right. It changes the ethic. The idea is that if a bill or nomination makes it to the Senate floor, it deserves a vote. And then the question is, who is keeping us from having a vote?

But what I also like about it, is that in a world in which the time of a Senator is extremely valuable, it imposes some greater cost on people who are waging a filibuster. Imagine that the majority party starts to file its cloture motion on Thursday. That means that the vote will occur on Saturday. Let’s say they file their petition on Friday. That means you’d also have a vote on Sunday. And so, in order to block legislation, or nomination, the people who are opposed would actually have to come in on the weekends. They wouldn’t be home in their states; they wouldn’t be off having fun. They would have to be serious enough about their filibusters to give up on the other things that they could be doing with their time. That’s why I like it.

MM: Appropriations?

GK: Appropriations is one. So, Norm Ornstein at the American Enterprise Institute is advocating that there shall be no filibustering against appropriations bills. It’s a basic job of Congress to pass these appropriations bills. They’re getting gummed up. In a simple category, I would set up expedited procedures for executive nominations, and some sort of quick super-majority process for simple legislation. In the House, if I wanted to pass a bill to, say, name a post office, they have what is called ‘Extension of the Rules.’ So, I bring up a bill, talk for thirty minutes, and then there is a two-thirds vote to decide if it passes, or not. The Senate has traditionally passed a law that that type of legislation must be passed by unanimous consent, which then means that any one Senator that is feeling cranky that day can keep it from passing. So, to prevent one cranky person from jamming up the small bills, it would make sense to have something like the ‘extension of the rules’ process. Which is, bring the bill, do the vote, let it pass quickly.

MM: Theoretically, I think that that could impact the tradition of holds because that would basically make one Senator placing a hold responsible for proving that it was a viable threat for a larger-scale filibuster rather than just a threat of them objecting to unanimous consent.

GK: Well, more than that, it would be an assault on the practice of holds. A hold, in its most general form, is keeping legislation off the floor for a limited period of time—just a few days. And often there are sincere reasons for doing this; you want to actually read the bill, you want to prepare amendments. For Senators, they often want to be in on the discussions for what process will be used when the bill comes to the floor. It is all pretty legitimate. It becomes illegitimate when people complain when it is really a one person veto that becomes unanimous. In the later case when a person has just been vetoing a bill or nomination for an extended period of time, just sort of sitting in doldrums for a while, then it would be great to have some sort of process that would bring down the one person, or the ten people, that are objecting, to just get it done.

Lastly -- and this is actually a standard suggestion going back to the Congressional Reform Committee of 1993-94 -- if, like me, you think that filibusters can be good, and it makes sense that major legislations have to run that gauntlet, it doesn’t make sense why a bill should have to run the gauntlet multiple times. So, it would make sense, for example, to eliminate filibusters on the motion to proceed. That’s an agenda setting motion that sort of brings a bill to the floor. So, when financial reform was passed in the Senate, the Republicans were first filibustering against the motion to proceed. They were arguing that they didn’t like the bill. But if you don’t like the bill, that means bring it to the floor and offer amendments to it. It doesn’t mean that you should keep the bill off the floor in the first place. So, if you don’t like the bill, bring it to the floor. Either offer amendments or filibuster. At least let it get to the floor in the first place.

A second point is that it has gotten a lot harder for legislators to go to conference committees because if a Senate committee decides they want to go to conference committee on the bill, there are actually three motions that have to pass to do that; to disprove another Chamber, to request a conference, and then to appoint conferees. So those motions, of course, are subject to a filibuster. I would condense that, or actually even out the allowance to filibuster the motions to go to conference and start the negotiation process, and still allow Senators to filibuster the product of that Committee. But at least allow the negotiation to occur.

MM: Those reforms would ensure that the filibuster is actually doing what its defenders say it is supposed to do, which is to promote actual deliberation and debate. Whereas, if you’re filibustering a motion to proceed, you’re actually preventing the deliberation.

GK: That is correct. If these reforms actually got to a vote, it would be hard for Senators to sincerely oppose them – except out of raw interest for maintaining every opportunity to filibuster, if they’re in the minority.

One last thing on that point, Senator Merkley of Oregon has proposed that the Senators adopt reforms that are implemented in six years, since they don’t know where they will be in six years. And that way, they can think more about the broader implications, and less about their own strategic situation that they want right now, and for the next two years.

I would imagine, if the Senators actually did walk out from behind closed doors and say, ‘we’ve got these reforms and we want to implement them in six years,' that the next question will be: if they’re good in six years, why not make them active now? I think that would be a very tough question to answer.

Gregory Koger is an assistant professor of political science at the University of Miami and the author of Filibustering: A Political History of Obstruction in the House and Senate (Chicago Studies in American Politics), University of Chicago Press.

Mimi Marziani is a lawyer at the Brennan Center for Justice.

Tags: Democracy, Filibuster, Greg Koger, Mimi Marziani, Author Talk

A Funny Thing Happened to Dick Armey on His Way to Mega Prominence…

08/07/10

 Give Us Liberty: A Tea Party Manifesto
by Dick Armey and Matt Kibbe
 

Reviewed by Jesse Kornbluth

Dick Armey's father, the operator of a North Dakota grain elevator, liked to fish with his son in Canada. As they drove, the boy noticed painted barns “straight from a Norman Rockwell canvas.” But at the border, as Armey writes on the third page of his new book, Give Us Liberty: A Tea Party Manifesto, the scenery changed:

The barns were unpainted. I wondered why Canadian farmers would allow their barns to degrade from exposure to the elements. The answer, I discovered, was government. At the time, Canada taxed painted buildings, so farmers left their structures exposed to avoid the penalty. These things make quite an impression on a child.

Yes, but what if it's the wrong impression?

My fact-checking suggests it is. Large unpainted barns were often erected in Southern Canada in the late 19th Century --- and the custom seems to have continued. The Canadian government had nothing to do with the décor of those barns. The reasons the barns were unpainted were culture and esthetics.

A childhood misimpression casts a long shadow. At some point, Armey might have run across a different explanation. But this one neatly fits his politics. And now he passes that misinformation on.

Misperceptions can be useful. In the early '90s, the economics professor cast his lot with Conservative Republicans at exactly the right time, beating the drums in the House of Representatives against Bill Clinton's efforts to reduce the deficit the old-fashioned way --- by raising taxes. Later, when Armey's side was in charge, he was one of the Republican leaders who delighted in cutting taxes and growing the federal budget.

Consistency was never Armey's strongest suit. His view of the Clinton sex scandal: "If I were in the President's place, I would not have gotten a chance to resign. I would be lying in a pool of my own blood, hearing Mrs. Armey standing over me saying, 'How do I reload this damn thing?'" This quip backfired --- it inspired some of his former students to recall episodes of sexual harassment by Professor Armey. (There is now a second Mrs. Armey.)

In 2003, after eight years as Speaker of the House, Armey resigned and joined the Washington law firm now known as DLA Piper as a senior policy advisor, or, in plain English, as a lobbyist. The job paid well --- a reported $750,000 a year. But lobbyists are not in the public eye, so he also became co-chairman of Citizens for A Sound Economy, which, the following year, became FreedomWorks. The cause grew rapidly, and, by 2008, FreedomWorks was paying Armey a salary of $550,000.

Better believe he's visible now.

The philosophy of FreedomWorks is straightforward: “Lower Taxes. Less Government. More Freedom.” It is, if you've tried to trace its ideas, a hopelessly self-contradictory program. The Tea Baggers want to cut the deficit, but insist on lower taxes. They hate national health care, but love Medicaid. [In his book, Armey and his collaborator, Matt Kibbe, write that “the government should be concerned with protecting my liberty, not my liver.” ] They want freedom --- mostly from government --- but also want the Feds to do more to punish illegal immigrants. They are, in short, an ignorant army, pumped up by Glenn Beck, Sarah Palin and FreedomWorks to campaign for programs that would benefit them not at all. No matter. Their ideas are of less consequence than their numbers and the shrillness of their voices.

A funny thing happened to Dick Armey on the way to mega-prominence --- his employer and his cause turned out to be on opposite sides of several issues. DLA Piper represented drug companies that, at least initially, supported health care reform. And the firm represented General Motors, Lehman Brothers and Merrill Lynch. FreedomWorks opposed TARP.

Conservative bloggers noted these conflicts and attacked. Armey said he was the victim of a conspiracy --- 'I wouldn't be surprised if it stemmed from information put out by allies of the Obama administration” --- but in August of 2009, he resigned from DLA Piper. "I hated to walk away from that kind of money," he said. “How many times in your life, or anybody's life, do they have an opportunity to earn that kind of money when they are 69 years old?"

These days money is not his problem. His movement is. In the courts, the Tea Party is losing, The Administration vs. Arizona. Overturning Proposition 8. Another liberal woman on the Supreme Court. With every decision that “they” lose, you can picture their rage spiking.

Meanwhile, Armey and Fox and the right wing bloggers have been screaming “Take back America” for so long that they will almost surely incite some event that sets “real” America against illegals, deviants, liberals and, mostly and especially, the President.

And soon.

At a Tea Party event, someone will turn on an idiot protestor. Or a Tea Party member will decide to right some wrong. A gun will go off. And there, along with blood and death, will be the media's useless and overdue finger-pointing.

On August 28 --- the anniversary of Martin Luther King's March on Washington --- Glenn Beck is leading a march on Washington of his own. This is worrisome. Since January 19th, 2009, Beck attacked the little-known Tides Foundation on his show 29 times; in July, one of his fans was arrested after a shootout with the California Highway Patrol. His plan: “to start a revolution" by attacking the American Civil Liberties Union and --- you guessed it --- the Tides Foundation. So Beck has called for marchers at his rally to sign an oath of non-violence. Bring your gun if you must --- it's your Constitutional right --- but don't pull the trigger.

Glenn Beck is working hard to make sure he cannot be held responsible for any violence.

That is why, I think, Armey uses the final 65 pages of his 245-page book to make it clear that FreedomWorks is not a leader of the Tea Party movement. Nobody is. It's local. Grassroots. FreedomWorks exists simply to support those groups and give them tips on organizing their events and meetings. Talking points, rallies, slogans --- all that comes, spontaneously, from patriots whose names we wouldn't recognize.

These pages, like the first 244 pages, are not terribly illuminating. They are very likely untrue. But to talk about them in journalistic or literary terms is to miss their purpose. “Give Us Liberty” may bear a publisher's imprint --- surprise: the publisher is Rupert Murdoch --- but it is not a book.

Dick Armey has, cleverly, published his legal defense.

Jesse Kornbluth is editor of HeadButler.com

Tags: Book review, Dick Armey, Jesse Kornbluth, Tea Party

Should Monsanto – makers of PCB and Agent Orange – control our food supply?

08/06/10

The World According to Monsato
by Marie-Monique Robin  

Reviewed by Peter Lehner and Vivian Wang

Each bite of food that we consume carries political and ecological implications – implications that Marie-Monique Robin unveils in her scathing indictment of the agribusiness giant, Monsanto. In The World According to Monsanto: Pollution, Corruption, and the Control of Our Food Supply, Robin traces the history of Monsanto from its production of polychlorinated biphenyls (PCBs) in the 1930s and its supply of dioxin for Agent Orange in the 1950s, to its present-day manipulation of genes to produce bovine growth hormone and transgenic corn, soybeans, and cotton.

Robin marshals stories from government whistleblowers and farmers around the world, along with data from the FDA and studies suppressed by governments, to weave an alarming tale of the environmental and health implications of Monsanto’s control of seeds and food. Monsanto’s market dominance – established, admittedly, by sound business efforts but also through the support of the suppression of science, patent litigation to control the seed market, and deceptive advertising, and facilitated by the government’s inadequate oversight – presents a serious challenge for citizens concerned about the sustainability of our food system.

Robin focuses particular attention on Monsanto’s effort to silence studies questioning the safety of genetically modified (“GM”) crops. Lectins are plant proteins that act as natural insecticides and the lectin from snowdrop plants has been found effective against aphid infestation of potatoes while being harmless to mammals. In the mid-1990s, the pro-GM British government asked Dr. Arpad Pustzai to test transgenic potatoes modified to produce the snowdrop lectin. Dr. Pustzai found that different lines of transgenic potatoes contained quantities of lectin varying up to twenty percent, despite the fact that the genetic manipulation process was supposed to produce a consistent effect. The potatoes also had unexpected health effects – rats fed the transgenic potato had underdeveloped brains and livers, atrophied pancreatic and intestinal tissue, pre-cancerous cells in their stomachs, and overreactive immune systems. Not long after Dr. Pustzai revealed these results to the UK advisory committee in charge of GM food safety, his research contract was suspended, his team was dissolved, and his research was discredited with claims that he accidentally used a toxic lectin instead of snowdrop lectin in his studies. (Subsequent studies have supported Dr. Pustzai’s findings that the transgenic potatoes may affect immune function.) Robin asserts that the British government had been pressured by the American government to suppress publication of Dr. Pustzai’s study and that the American government, in turn, had been under pressure from Monsanto, which feared that the study would harm the biotech industry.

A theme that emerges from Robin’s narrative is the inadequacy of government regulation. Federal agencies like the EPA and FDA are vulnerable to “capture” by industry – becoming unduly influenced by the parties they are supposed to regulate. This is in part because industry’s resources far outstrip those of the government, and regulators are often forced to rely on scientific data generated by industry. The government may be unable to independently verify the data, and, as Robin points out, may even be denied access to data on the grounds that they constitute confidential business information. The “revolving door” further fosters an uncomfortably close relationship between the regulator and the regulated. For example, Robin reports that Michael Taylor, FDA’s deputy commissioner in charge of setting policy on GM crops, was formerly an attorney for Monsanto and the International Food Biotechnology Council. Hired by the FDA in 1991, Taylor aided in decisions approving GM crops. After his government tenure, Taylor returned to Monsanto as its VP of public relations.

This problem of regulatory capture is not confined to food regulation, of course. Just consider the news footage of tens of thousands of barrels of oil that until very recently, hemorrhaged daily into the Gulf of Mexico. Investigations of the regulatory agency, Mineral Management Service, revealed a culture of lax oversight, with inspectors who accepted gifts from one oil company and an employee who conducted inspections of drilling platforms while negotiating for a job with the drilling company.

A Supreme Court decision issued in June demonstrates a fundamental challenge presented in Robin’s book – the role of regulation in the face of uncertain ecological risk. Monsanto’s Roundup Ready Alfalfa (RRA) is an alfalfa crop engineered to tolerate glyphosate, the active ingredient of the Monsanto herbicide Roundup. In response to a Monsanto petition, the Animal and Plant Health Inspection Service (APHIS) deregulated two strains of RRA. Environmental groups and conventional alfalfa seed farmers filed suit. The district court agreed that APHIS violated federal law by failing to address whether deregulation would lead to transmission of the glyphosate-tolerant gene from RRA to organic and conventional alfalfa, and whether RRA would contribute to development of Roundup-resistant weeds. (Robin reports that before the advent of Roundup Ready soybeans, Argentina used one million liters of glyphosate annually. Because of increasing herbicide resistance, that figure reached 150 million liters by 2005.) The district court prohibited all future plantings of RRA pending APHIS’s completion of the required environmental impact assessment. The Supreme Court reversed this decision.

The legal issues presented in the Monsanto litigation (whether the district court correctly applied the standard for injunctive relief) is, for purposes of this discussion, less important than the underlying difficulties of risk assessment and the burden of proof in regulatory decisionmaking. Despite substantial evidence that RRA genes could transfer to other plants, APHIS agreed to unconditionally deregulate RRA. In his dissenting opinion, Justice Stevens cited the district court’s detailed review of internal agency documents. Some APHIS scientists had warned that contamination of organic crops may occur, yet the agency concluded that the risk is “not significant because it is the organic and conventional farmers’ responsibility” to protect themselves and the environment. The agency reached this conclusion without having investigated whether farmers could in fact protect their crops from such contamination, given the variables of wind, bird, and bee pollination.

Whether it is the impacts of transgenic crops or the BP oil spill, mountaintop removal mining or natural gas drilling, the problem of inadequate regulation is a challenge for environmental and consumer advocates. What can be done? Raising consumer awareness is one crucial step. The pressure of an educated consumer base can force changes in corporate behavior. Witness the shift away from trans-fats, high fructose corn syrup, and milk from cows injected with bovine growth hormone. Legislative reform is another avenue for change. The burden of proof should be on companies to establish the environmental and human health safety of products before they are allowed on market. Whistleblowers need stronger employment protection. Other useful reforms include improving EPA and FDA coordination over health and environmental testing for GM crops and enacting strong consumer protection laws that prohibit false and deceptive advertising of products’ environmental attributes (“greenwashing”).

While Robin does not purport to set forth a battle plan against Monsanto’s domination of seeds and science, her book does an admirable job of drawing our attention to the forces that influence how we grow crops and what we eat – essential acts that merit far greater scrutiny from us and our governments.

Peter Lehner is the Executive Director of the Natural Resources Defense Council and Vivian Wang is a Legal Fellow at the Natural Resources Defense Council.

Tags: Book review, Environmental justice, Marie-Monique Robin, Peter Lehner

My Life With My Brother’s Killer

08/06/10

Thirty years ago, a drunk driver killed my brother.  I’ve been thinking about the homicidal driver ever since.  Then, I found him on the Internet…

By Beth Greenfield

This past year, I wrote and published a book, Ten Minutes from Home, about how my family was affected by the drunk driving accident that killed my brother and my best friend nearly thirty years ago. While working on it, I began to wonder about what had happened to the man who hit us.

All I knew about him was that his name was Edward Pahule, that he was a Milwaukee native stationed at a Jersey Shore naval base, and that he was on a liquor-fueled bender on the June night my family and I happened to be heading home from my yearly ballet recital. When he hit us, he took the lives of my brother, who was 7, and my best friend, who was 13 — just a year older than me.

I found Edward Pahule quickly on the Internet. And I learned that he is back in Wisconsin, and that he is a blogger. I even found a photo of him—a tiny headshot, in which he looks like a normal-enough guy, with a graying beard and wire-framed glasses and a mellow smile—and I stared into his eyes for a while, conscious that I was, at last, looking into the face of Adam’s killer.

I used to fantasize about looking him in the eye.

Edward Pahule got off easy. He was sentenced to just six months in jail. This was New Jersey, 1982—the highest-record year for alcohol-related car fatalities in the state, and a low point for drunk driving laws and penalties. It was an irony that filled my grief-stricken father with a burning anger, and he set out to find ways to right our wrong.

“We’re just going to put those scumbags away!” he would report after returning home from frequent meetings of the New Jersey Task Force on Drunk Driving. He joined the group shortly after being released from his post-accident hospital stay, during which he’d recovered from a punctured lung, a broken shoulder and a bruised heart. “They want to suck down the booze and then get in their cars? Fine. No problem. We’ll let ’em rot in jail, that’s all.”

My mother, though, was not interested. “Is that going to bring him back?” she would shout, stone-faced, at my father who would sigh and look at the floor. “Then I don’t want to hear it!” She had no use for any form of revenge or justice, from what I could see, because none of it could make our family whole again.

My own thoughts on the subject hovered somewhere in between my parents’ two extremes. Mostly I didn’t think about blame or punishment, as I, too, saw it as useless—unable to make me a big sister to Adam or best friend to Kristin again. But I would sometimes think about meeting the drunk driver face to face. I would watch those early-’80s TV talk shows as they brought together sobbing, chest-thumping survivors with the killers of their children or parents or lovers, and something in me would long to be a part of the action—to walk onto Phil Donahue’s set and stand before Edward Pahule so he could crumple and apologize with the world watching.

Later, when I was in high school and working a part-time job in a clothing store at the mall, I would have distracting daydreams in which I would take someone’s credit card for a sale, look down at the raised-plastic cardholder’s name and see that it read EDWARD PAHULE. Some days I would think that every card handed to me would definitely be his—even if the purchaser was a woman, which it almost always was—and I would shake with anticipation and will myself not to read the name on the card until the moment before I handed it back so I could ready myself for an appropriately fired-up response. But what would I have possibly said? I had no idea. I just thought that making him see me would stir something in him and make him truly regretful.

My father’s brand of justice never appealed to me. In high school, when I learned that a few of my friends were banding together to form a chapter of SADD, I was horrified—self-conscious and guilty that I wasn’t involved. But I just couldn’t do it. I couldn’t risk sitting in a classroom after the final bell of the day had rung, hanging out with this handful of well-meaning peers and trying to look like anyone else, like a normal student who just happened to choose SADD as an extra-curricular activity, the same way I might’ve chosen debate club or field hockey or chess.

Eventually I’d head off to college—a private liberal-arts school in Connecticut—and it quickly dawned on me that I was among spoiled rich kids, and so I asked my parents, a pair of teachers, how we were able to afford such an education. “Money from the accident,” my father blurted out. It made me sick to know it, that we’d gotten money out of the deal, and that I was going to school with it. It didn’t only feel unjust, but rotten, and cheap. But it was the way of the legal system; money for the victims and jail time for the offenders was pretty much all it had to offer—and neither one, as far as I was concerned, could offer anything that worked to take the edge off grief.

All these years later, I haven’t thought much more than I had as a teen about seeking justice for what our family went through. The idea of more jail time for the man who hit us sounds like it would have been a good idea, but even if he was still locked up to this day, I know that fact alone wouldn’t have eased my years of grief and healing.

Beth Greenfield, is the author of Ten Minutes From Home.

Tags: Beth Greenfield, justice, Summary Judgment

To Kill a Mockingbird is 50!

08/06/10

Atticus Finch, America's most beloved lawyer -- and father, is as inspired as ever.

by Austin Sarat

“You know something, Mr. Cunningham, entailments are bad.”

                                    Scout in To Kill a Mockingbird

To Kill a Mockingbird turns 50 this year, and 2012 will mark the 50th anniversary of the release of the film version. The novel won a Pulitzer Prize in 1960 and, in 2003, the American Film Institute named Atticus Finch the greatest movie hero of the 20th century. While it is fair to say that both novel and film have become staples of American cultural life, as they turn 50, we should ask: is theirs a legacy we should celebrate?

Set in a southern town during the Depression, its central character, Atticus Finch, an iconic citizen-lawyer, is called on to defend an African-American accused of raping a white woman. At the time of its release, readers and viewers of To Kill a Mockingbird were located in the era between Brown v. Board of Education and the passage of the 1964 Civil Rights Act. As the controversy over the recent firing of US Department of Agriculture employee Shirley Sherrod highlighted, the quest for racial justice that Atticus pursued by no means has been fully vindicated.

Although Atticus is sometimes criticized for being too accommodating to the segregated world in which he lived and practiced law, he remains popular culture’s most important embodiment of lawyerly virtue. As law professor Steven Lubet recently observed, “Lawyers are greedy. What about Atticus Finch? Lawyers only serve the rich. Not Atticus Finch. Professionalism is a lost ideal. Remember Atticus Finch....Atticus serves as the ultimate lawyer. His potential justifies all of our failings and imperfections. Be not too hard on lawyers, for when we are at our best we can give you an Atticus Finch.”

However, To Kill a Mockingbird is of enduring value not just because it is a lawyer’s story, but also because it is a story of fatherhood and of fatherhood’s complex associations with the law. Told as Scout’s memory of her father (Atticus), her brother (Jem), and the town where she grew up, her tale of Atticus is highly idealized. As Scout puts it, “There just didn’t seem to be anyone or anything that Atticus couldn’t explain.” While many attend to Atticus the lawyer, Scout calls on us to attend to Atticus the father as well.

Indeed, legal scholars, since Freud, have called attention to the complex associations of paternity and legality. They have portrayed a deep-seated longing for paternal power and the overwhelming power that fathers exercise as basic to legal authority. One of the most famous of these formulations is found in Jerome Frank’s early 20th century classic, Law and the Modern Mind. There Frank suggested that law is a projection of a widely shared human need for certainty and security in a world of danger, and he offered a view of law as the father or, more precisely, as the father-substitute. “To the child,” Frank argued, “the father is the Infallible Judge, the Maker of definite rules of conduct. He knows precisely what is right and what is wrong and...sits in judgment and punishes misdeeds. The Law....inevitably becomes a partial substitute for the Father-as-Infallible-Judge....”

To Kill a Mockingbird shares with many mid- to late-twentieth century novels and films an interest in exploring the connections between law and fatherhood that Frank noted, offering readers and viewers a chance to consider what fatherhood can reveal about law and law about fatherhood. On its 50th anniversary we are again reminded of the role that fathers and fatherhood play in cultural imaginings of law and in exemplifying the various faces of law’s power. Atticus Finch is a father and a lawyer committed to a particular vision of both fatherhood and law --one in which both can transcend, if not transform, the context in which they exist, one in which an orientation toward the future takes precedence over controlling the present, one in which the temporal horizon of law and fatherhood is kept firmly in view. In Atticus, law and fatherhood are both powerful and yet limited in their power, both existing in the present but oriented toward an as yet unrealized future.

To Kill a Mockingbird offers our era a view of law and fatherhood quite different from Jerome Frank’s imagining. Atticus Finch and the legal commitments he exemplified are focused on becoming as much as on being, and on the quest for racial justice as a lived experience for his children. Atticus as father/lawyer is a bridge between past and future. The past weighs heavily on Atticus, even as he tries to point his children toward a better future. What Scout calls “bad” entailments are legacies against which Atticus sets himself, the legacies of racism, race privilege, and violence, which in the mid-twentieth century American south remained powerfully in place.

In setting himself against those legacies, the father offers his children an example, a different way of being in the world, a model of adult values and sensibilities that oppose racism and racial stereotyping of the kind that showed their ugly face in the Shirley Sherrod incident. His example is as relevant in today’s supposedly post-racial era as it was in the heyday of the Civil Rights movement. It is worth celebrating as To Kill A Mockingbird’s turns 50.

Austin Sarat is William Nelson Cromwell professor of Jurisprudence and Political Science at Amherst College and the editor of Law and the Stranger (The Amherst Series in Law, Jurisprudence, and Social Thought).

Tags: Austin Sarat, fiction, JB, justice

Should The New York Times be prosecuted for disclosing Bush Administration secrets?

08/06/10

Necessary Secrets: National Security, the Media and the Rule of Law
by Gabriel Schoenfeld  

Reviewed by Fritz Schwarz

This is a thoughtful, important, and interesting book.

Necessary Secrets’ principal point is that for four decades, the media has become reflexively dismissive of government claims that publication of certain secrets will severely damage national security.  The main target is The New York Times, which Schoenfeld contends should have been prosecuted for its revelations in 2005 and 2006 about the Bush Administration’s secret warrantless wiretapping and bank information programs.   

 Schoenfeld’s case for prosecution is flawed.  But Schoenfeld is not a single-minded ideologue.  To the contrary, he sees both sides of important issues, and touches on some weaknesses in his case for prosecution.  Moreover, the book is well worth reading for its sweeping, and often gripping, historical survey of leaking since the Revolution. 

 Despite getting his case for prosecution and a few facts wrong, Schoenfeld sparks an interesting debate, one that readers will want to join. 

Schoenfeld begins by harking back to our Founding Fathers, noting that while they “constructed a political system based on a high degree of transparency,” and believed “openness is an essential prerequisite of self-governance,” they did not flash a green light for the publication of any and all secrets.  Thus, as two early examples, George Washington wrote during the Revolution that “there are some secrets, on the keeping of which so depends, oftentimes, the salvation of an Army.”  And Patrick Henry, in opposing ratification of the Constitution, partially on the ground of its lack of sufficient transparency, said he nevertheless “would not wish to be published” material relating “to military operations or affairs of great consequences, the immediate promulgation of which might defeat the interests of the community.”    

Words aside, the Founders’ actions placed limits on openness.  The Constitutional Convention of 1787, for instance, was conducted in strict secrecy—although the significance of this has been repeatedly exaggerated by secrecy advocates, including the Supreme Court in United States v Nixon.[2]  Moreover, the Constitution itself allows both the Senate and House to meet in secret—although a seldom noticed provision allows one-fifth of the members to force all votes to be made public. 

In developing his case against the Times, Schoenfeld uses his description of the Founders to tut tut at Times’ editor Bill Keller for contending that the “‘people who invented this country’” would obviously have blessed the Times’ publication of the Bush-Cheney secrets. 

But then, in his typically fair approach, Schoenfeld rejects Scalia-type “originalism.”  Today’s secrecy issues should not be resolved—either pro or con—by reliance on the Founders’ views.  Too much has changed.  The presidency “has grown hugely in scope and power since 1789,” and “successive technological revolutions have given the executive branch surveillance and information-storage powers of astonishing reach.”    

To buttress his point that there are secrets whose disclosure harms the nation, Schoenfeld dramatizes a series of leaks.  The earliest was the revelation during the Revolution that France had been secretly providing a “massive covert infusion” of money and material assistance to America’s hard pressed revolutionary army.  The French were still publicly neutral.  The leak embarrassed them—though they continued to support the revolutionaries; soon doing so openly. 

The leaker was Thomas Paine, then Secretary of Congress’s Foreign Relations Committee, and earlier the author of Common Sense, the powerful pamphlet that boosted American’s revolutionary spirit.  While Paine faced “scathing attacks” and lost his job, he suffered no further penalty.  Indeed, years later, on George Washington’s recommendation, Paine was rewarded for his services to the Revolution with an estate in New Rochelle. 

This early example of immediate expressions of outrage about a leak, but no more serious action, has often been repeated in the more than two centuries after Paine.  When Schoenfeld makes his case for prosecution of the Times, this pattern is one of many problems he candidly recognizes.   

Jumping ahead to the 1930s, a huge leak was triggered by Secretary of War Henry Stimson’s cutting back on American code breaking because, in his view, “gentlemen do not read each others mail.”  America’s leading code breaker, Herbert Yardley, suddenly “out of a job in the Great Depression,” and believing that code breaking was a valuable tool for the nation, responded with a book that revealed all the codes we had broken since World War I.  One possible publisher, Viking, rejected the book after consulting military intelligence because of “harm to the national interest.”  But Bobbs-Merrill decided to publish.  “Aware of the risks, its lawyers did not advise restraint.” 

Among the broken codes highlighted by Yardley’s book were Japan’s––first used to Japan’s disadvantage at the Washington, D.C., Naval Conference held in 1921 where Americans read all the coded messages sent or received by the Japanese.  As Yardley put it, five-card “stud poker is not a difficult game after you see your opponent’s hole card.” 

Schoenfeld asks whether the Japanese attack on Pearl Harbour on December 7, 1941, would have been prevented absent Yardley’s leak.  Thus, Schoenfeld quotes telegrams on December 5 and 6 to and from a Japanese Consular official in Hawaii referring to “a surprise attack” on U.S. Naval ships in Pearl Harbour.  These cables were not successfully decoded and read until after the attack—perhaps because after the Yardley book, the Japanese continually revised and tightened their codes. 

In an echo of Paine being given a New Rochelle estate, however, Yardley, while derided for the book when it was published, “lies undisturbed in Arlington National Cemetery in a grave next to those of our greatest heroes.” 

As World War II was waged, there were several more harmful leaks.  For example, Congressman Andrew Jackson May learned on a tour of U.S. Pacific bases that American submarines were succeeding in part because Japanese depth charges were fused to detonate far above our submarines.  May soon held a press conference boasting about the high survival rate of American subs, attributing it to the faulty Japanese calculations.  The Japanese then recalibrated their depth charges.  Later, the Commander of the U.S. submarine fleet in the Pacific estimated that the result was the loss of ten subs and the death of 800 U.S. sailors. 

Also during World War II, the Chicago Tribune wrote a story about the June 1942 Battle of Midway, the major battle where the U.S. Navy began to turn the tide against the Japanese navy.  The story included details that made clear that U.S. intelligence was reading the secret, coded Japanese naval communications.  (The Tribune reporter had been on a U.S. ship where he was improperly shown a classified translation of the Japanese plan of attack on condition he not write about it.  But he did.) 

Neither Congressman May nor the Chicago Tribune (whose publisher, Col. Robert McCormick, despised FDR) faced any consequences.[3]  The Justice Department did open a criminal investigation of the Tribune but decided not to indict, with Schoenfeld speculating that one reason was that a trial would call greater attention to our successful code breaking when “considerable uncertainty “remained about whether the Japanese knew.” 

The Manhattan Project, responsible for building the atomic bomb during World War II, took secrecy to a historically unprecedented level which Schoenfeld captures concisely.[4]  But what was surprising to me was the extent to which whiffs of revealing information seeped through the barriers.  Tennessee newspapers mentioned “secret war production of a weapon that possibly might be the one to end the war.”  The Washington Post said the Senate’s Truman Committee was investigating a half-billion dollar War Department project.[5]  The Minneapolis Morning Tribune wrote in August 1944—one year before the bomb was used against the Japanese—that uranium sales were being restricted by the U.S. government, and that “all known explosives are popgun affairs compared to the dreadful power sub-atomic energy might loose.”  And, also in August 1944, the radio program Confidentially Yours—which reached some two million listeners—announced that the Army would soon create a new weapon based on splitting the atom. 

Fortunately, neither the Germans—who were working on their own bomb—nor the Japanese picked up these hints.  Could those hints (or the Chicago Tribune’s story about Midway) possibly be missed in today’s internet age? 

Then, for a flicker right after World War II, there was movement to relax secrecy.  The wartime Office of Censorship was abolished.  And, perhaps because leading scientists had expressed concern that blanket secrecy inhibited scientific progress, the original draft of the Atomic Energy Act called for “‘the free dissemination of basic scientific information and for maximum liberality in dissemination of related technical information.’”  With the onset of the Cold War, however, the Act as passed and signed by President Truman, shifted and banned dissemination of any information touching on nuclear technology.  Nuclear information was “born secret.” 

Truman also expanded classification, and set tight rules on the handling of classified material.  And Congress passed a new law making it a crime to make available, or publish, any classified information “concerning the communications intelligence activities of the United States.”  Schoenfeld italicizes publish, and also notes that the Comint Act was endorsed “by the American Society of Newspaper Editors, an organization in which the leading editors of The New York Times were active members.” 

Indeed, for a while after World War II, the media was generally relatively compliant with secrecy.  Probably more than was good for the country.  For, as later investigations—particularly the Church Committee for which I was Chief Counsel—and investigative reporting revealed, for decades secrecy stamps had all too often been used to cover foolishness, embarrassment, impropriety, and illegality.   

But Schoenfeld says that in the 1950s and early 1960s “top reporters and columnists and approximately twenty-five news selling organizations, including The New York Times, Time, Inc., and CBS, had been secretly cooperating with the CIA in all sorts of ways.”[6]  At some time in the late 1960s or early 1970s, however, there was, in fact, and as recounted by Schoenfeld, a sea change in how much of the media thought about secrecy.  Schoenfeld uses two case studies to illustrate the change:  Ramparts magazine’s exposure of the CIA’s secret relationship to the National Student Association and Daniel Ellsberg’s leak of the Pentagon Papers, first published in the Times.[7]   

Schoenfeld concludes that the Ramparts story appropriately revealed CIA foolishness.  It was “a virtually inevitable leak that flowed from the shortcomings of American intelligence, which, not withstanding its triumphs in the previous decade, was by the 1960s becoming increasingly sclerotic.” 

After Ramparts, the Times’ exposed many other organizations “that had been on the payroll of the spy agency.”  But Schoenfeld once again enjoys a dig at the Times:

“While publishing not a word about its own long-standing and intimate history of collaboration with the CIA, it dug further into the subsidies to others…”

As for the Pentagon Papers, Schoenfeld says the article in the Times and other papers revealed “no current operational secrets.”  Moreover, the “principal harm” was “diplomatic embarrassment and a vivid demonstration to American allies and adversaries alike that the U.S. government was having severe difficulties keeping its secrets secret.”  But, Schoenfeld opines, “both those forms of damage are no doubt ones that an open society, if it is to remain open, must accept.” 

Nonetheless, in a precursor to part of his case against the Times, Schoenfeld characterized the leak as an “assault” on “orderly government” and, without much explanation, on “democratic self-governance itself”—”because we have an “elected president and elected representatives.” 

Ramparts, and coverage of the Pentagon Papers by the Times and other papers, while important, were just part of the sea change in the media’s attitude toward secrecy.  But, when assessing responsibility, Schoenfeld, for once, is overly simplistic.  He places blame for the sea change squarely on the shoulders of Richard Nixon.  Thus, Schoenfeld concludes his chapter on the Pentagon Papers by saying:

“If our country has had an especially unhappy history wrestling with secrets over the succeeding four decades, Richard Nixon is the major reason why.  No other president in American history has given secrecy such a bad name.”  

Nixon did secretly break the law—perhaps most outrageously in ordering the break-in of the office of Ellsberg’s psychiatrist.  And Nixon then attempted stealthily to cover up White House crimes.  But if Nixon’s were the only harmful excesses of Cold War secrecy, it would not have produced a sea change in attitudes toward secrecy.  

Thus, while the Pentagon Papers were leaked during Nixon’s presidency, they dealt with earlier administrations:  Johnson and Kennedy, and to a lesser extent Eisenhower and Truman.  The sting in the press reports about the Pentagon Papers was that secret internal documents from the pre-Nixon administrations gave the lie to those administrations’ public statements about the Vietnam War.  As for Ramparts, the story was published during the Johnson Administration, and exposed CIA funding of the National Student Association for the preceding twenty years. 

In contrast to Schoenfeld’s singular blame on Nixon, the Church Committee proved that all six Administrations, of both parties, from Franklin Roosevelt through Richard Nixon had abused their secret powers.  While Nixon and J. Edgar Hoover make “convenient villains,” the abuses were not the “work of a few bad men.”[8]  The abuses were long lived and systemic. 

Schoenfeld’s narrow focus on Nixon, and his related underestimation of the systemic, longstanding harms caused by excessive secrecy, are part of a mindset that helps explain the flaws in his case for prosecution of the Times. 

Flaws in Schoenfeld’s Case Against the Times.[9] 

Schoenfeld has both a simple and a convoluted case for prosecution.  The simple case is we have been at war since 9/11 and this war is “overwhelmingly dependent” on the “effectiveness of the tools of intelligence,” which, in turn, depend on “their clandestine nature.”  The convoluted case is that the warrantless wiretapping was classified; decisions about classification are made by presidents; laws against exposure of secrets are made by Congress; presidents and members of Congress were chosen in democratic elections—and, therefore, the Times’ articles were an “assault on democracy.” 

To reach these conclusions, Schoenfeld underestimates the contribution of the Times’ article to public debate on a core issue in a constitutional democracy, and overestimates the harm caused by the article.  In making these errors, Schoenfeld obscures what the Times’ article actually said, misstates the purpose of the law that requires warrants, and misreads historical examples from Presidents Lincoln and Roosevelt. 

Let’s start with what the Times did—and did not—say.  The headline of the Times’ article was “Bush Lets U.S. Spy on Callers Without Courts.”  Its lead sentence was “[m]onths after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying . . . .”  The focus of the article is on concerns within the government about “operational legality and oversight.”  (The question of legality arose because, in 1977, Congress passed the Foreign Intelligence Surveillance Act (or FISA).  The law prohibited national security wiretapping without a warrant issued by a special super-secret court (except for short emergency periods).) 

So the thrust of the article was about the Administration’s position that a president has the right to violate a law—and to do so secretly.  Surely, that is a matter of great importance in a constitutional democracy. 

Schoenfeld notes the existence of FISA but misstates its purpose.  FISA was not designed to “facilitate evidence gathering for prosecution.”  Instead, FISA covered intelligence gathering relating to “terrorism” and “espionage.”  It had different procedures—including more secrecy—than wiretapping in investigating ordinary crimes.  

The FISA court almost always had approved requests for warrants—although the need to seek warrants probably made intelligence officers more careful.  Moreover, Congress had shown a willingness to update FISA to deal with changes in the way messages are transmitted electronically.  But, as Schoenfeld correctly concludes, the Bush Administration “nonetheless rejected this idea,” for “doctrinal” reasons.  Schoenfeld explains that the White House, led in his telling by David Addington, Vice President Cheney’s counsel, believed FISA had invaded what Addington asserted was the President’s exclusive power to decide—secretly, and with no warrant requirements or other checks—who should be wiretapped. 

Then Schoenfeld goes on to “assume” the NSA’s warrantless wiretapping violated the law—surely thereby undermining his case against the Times.  But, he argues, “there were ample precedents for a president to bend or break the law when facing a supreme national emergency like the one the United States was facing after 9/11.”  The two examples given are FDR’s destroyer deal with England (“an unadorned violation of the Neutrality Act”), and Lincoln’s suspension of habeas corpus (“usurping Congress’s power under the Constitution.”).  But Schoenfeld here misses another key point.  Both Lincoln and FDR acted in the open.  Bush-Cheney did not. 

And that is what the Times story was about:  a secret program that violated a statute.  Moreover, the constitutionality of the program could only be defended by a secret opinion by the Justice Department’s John Yoo.[10]  This opinion purported to be the law, yet the Congress, the public and the legal profession were not permitted to know—or to critique—this secret law.[11]  This too merited the attention of the media. 

Moreover, the article did not undermine the effort against al Qaeda in any meaningful way.  Thus, the article was not about, for example, how NSA picks targets, or what key words it might use to decide which communications to review more closely. 

Nevertheless, before publication, President Bush told the Times, at a White House meeting, that if it went ahead with the story and another Al-Qaeda attack ensued “‘there will be blood on your hands.’”  (Perhaps between earlier drafts and publication details like key words were deleted.)  But, as Schoenfeld himself notes, the Administration never spelled out in a “precise way the nature of the harm.”  However, says Schoenfeld, “it is not difficult to imagine that a highly publicized report indicating that the NSA could readily tap into calls from, say, Islamabad to Detroit, might cause some Al-Qaeda communications to dry up.”  This is much too loose.  For, under the existing FISA warrant system, there also could be taps into calls “from Islamabad to Detroit,” which would be approved by a secret court order. 

Schoenfeld’s prosecution theory is breathtaking in its breadth.  Isn’t secretly ignoring the law and the implications for American values precisely what ought to be debated in the Congress, in the press, and among the public?  Schoenfeld implicitly seeks to trump this question by relying on another American value:  representative democracy itself.  Schoenfeld set this up by characterizing Ellsberg’s leak as an “assault on democratic self-governance.”  “For better or worse the American people in those years had elected Kennedy, Johnson, and Nixon; they had acted at the ballot box to make their leadership and policy preferences clear, including preferences about secrecy.”  Again truly breathtaking.  Surely, no voter made “clear” a preference for the secret use of “monarchial” prerogatives to ignore the law.  Yes, the public knew there was a classification system.  But classification stamps are widely known to be over-used.  And Schoenfeld is far too fair to argue that just because a classified document is published, a crime was committed by the publisher. 

Let us now hark back to Schoenfeld’s tut tut at Times editor Bill Keller’s contention that the “people who invented this country” would have blessed publication of the warrantless wiretapping article.  If one takes Keller as suggesting that the Founders would have approved publication of all secrets, it surely is correct to criticize Keller’s use of history.  But not so if the focus is on what the article actually was about.  For, having just revolted against monarchial arrogance, the Founders would surely have blessed a story exposing a president’s secret claim of power to violate a law.[12]   

The Times got at fundamental questions in a constitutional democracy.  Just as the press, at its best, should do. 

*     *     * 

This last section of this review is quite critical of Schoenfeld’s case against the Times.  But, Schoenfeld is, in general, an unusually fair writer.  He does recognize weaknesses.  And he does recognize the press’s “essential checking role” on the government, conceding that this “checking role, if it is to be more than a charade, must extend, as it now does, into the inner working of the national security apparatus where secrecy is the coin of the realm.” 

Schoenfeld’s debate with himself fairly sets up a debate for the public to engage in.  The book is well worth reading.

 [1] Fritz Schwarz is Chief Counsel of the Brennan Center and the author of Unchecked and Unbalanced: Presidential Power in a Time of Terror with Aziz Huq (The New Press, 2007).

Tags: Book review, Fritz Schwarz, Gabriel Schoenfeld, JB, National Security

Dispatch from the Justice Department

08/05/10

by Laurence Tribe 

My long life in the relatively quiet groves of academe, in the tree-lined streets of Cambridge, Massachusetts, was a calm one compared to life inside the Beltway. The perspective from that privileged perch was shattered when I began to see the broader view from inside the Justice Department, a view that reaches into every nook and cranny of our country. In my new job as Senior Counselor for Access to Justice, I have come face to face with the anxiety and desperation of ordinary citizens, who look to our legal system for their fair share of decent treatment.

Only five months into the job, I still view with awe the sign over the door to my office that reads, “Access to Justice.” More than a few folks who have come to visit have paused to have their pictures taken – not with me, mind you, but with that sign. But even after these few months, my staff and I already sense the danger of unrealistic expectations. We worry, as do many expert observers, that the system is too badly broken in too many ways to be susceptible to any “quick fix,” our state and federal budgets too strained to provide the resources so desperately needed, injustice too deeply woven into the system’s very structure for piecemeal reforms to make much of a dent. Or is it?

Ours is supposed to be a system that levels the playing field by meting out justice without regard to wealth or class or race, a system that lives up to the promise emblazoned in marble on our Supreme Court, “EQUAL JUSTICE UNDER LAW.” But as we know all too well, far too many of our citizens find instead a system in which the deck is stacked in favor of those who already have the most: in favor of the wealthy and against those already disadvantaged or victimized by the more powerful. There’s no reason to mince words: Not only the poor but members of the shrinking middle class find a system that is confusing, difficult to navigate, challenging to the point of inaccessibility for anybody who can’t afford the best lawyers, and ridiculously expensive for those in a position to pay the going rate.

Consider the Burger family in Michigan, a state that permits non-judicial foreclosure. The Burgers bought a four-bedroom bungalow in 1997 for just under $39,000. In January 2009, they inadvertently sent a money order that was 7 cents short of what they owed, and they were late making February’s payment as well. They caught up by April, which was amazing considering that they lost their 10-month-old daughter in a household accident that same month. According to the family, the bank sought to foreclose anyway, giving them a choice: Pay $8,390 to reinstate the mortgage or lose their home. The Burgers didn’t have the money, couldn’t afford a lawyer, and given Michigan’s laws weren’t afforded any court intervention or oversight, so they lost the only house that their four living children, all 12 years old and younger, had ever known.

But the unredeemed imbalance of power and wealth are not the only viruses infecting our legal system. Equally detrimental, though less visible, is the hydra-headed monster of too many people to be served effectively and – for lack of a better word to describe it – the punitive urge, an appetite for imprisonment that ignores the veritable mountain of evidence which shows that alternatives to incarceration are often more effective at reducing recidivism--while also less costly. All too often, the systems that rely on lengthy incarceration as the only available criminal sanction suffer from crushing caseloads and an inability or, I hate to say, unwillingness to provide the legal assistance needed to provide meaningful, adequate defense. Though neither of these forces necessarily originates from any ill intent, their combination creates waste, havoc, and confusion and leaves the system weakened and the participants on both sides of the bench disillusioned and discouraged.

Nobody who works within the legal system enjoys confronting these problems – they cast a dark shadow over a system in which we deeply believe and to which we have devoted our careers. But confront them we must if we are to combat them and redress their pernicious effects. More than 95 percent of all cases in this country are filed in state courts. Just to put things into perspective, it helps to recall that slightly under 280,000 civil cases of all kinds were commenced in federal district courts in 2007 – compared to nearly 18 million civil cases in the courts of our 50 states. The federal system saw over 66,000 new criminal cases filed in 2007, a substantial number to be sure, but nowhere near the 21 million plus that originated in state courts.

In the face of this staggering burden, the problems facing our state judicial systems can only be described as deplorable. The court systems in 28 states had hiring freezes in FY 2010, 13 states froze court staff salaries, six states mandated court furloughs, six states closed courtrooms – one day each month for all California courts. Los Angeles County alone has lost over $130 million of its court budget, and hundreds and even thousands of court employees are being laid off from California to Florida to New Hampshire. And judicial pay, adjusted for inflation, has fallen nearly 24 percent over the past 40 years while the average U.S. worker’s wages have risen nearly 18 percent.

Because of bulging criminal dockets and huge pro se backlogs, all made worse by the faltering economy, it’s becoming increasingly difficult for business litigants and others who are embroiled in civil disputes ranging from consumer fraud to family matters to get courtrooms for trial or to have trials, especially jury trials, scheduled in a timely way – often, they wait years to get their day in court. It was Clause 40 of Magna Carta that proclaimed, "To no one will we sell, to no one will we refuse or delay, right or justice." Justice that must depend on the purse, or justice so long delayed that it is in essence denied, does not deserve the name.

For the privileged litigants who can afford it, the natural response to a denial of justice in the public courtrooms of our nation is to take their business to private judges and mediators, operating outside the watchful gaze of the public and beyond the effective reach of the rule of law. The harm that results from that private response is experienced as well in the public sphere, where adjudication conducted out of the public’s sight mystifies instead of educating, depriving democracy of one of its essential wellsprings, that of seeing justice done.

For those litigants who cannot afford that private alternative, the natural response to a denial of public justice is more troublesome still. They must either suffer in alienated silence or take the law into their own hands. Judy Norman, the North Carolina woman whose story and trial are studied by many first-year students in their criminal law courses, tragically exemplifies that response. For 25 years, Ms. Norman was psychologically and physically abused, beaten by her husband, and forced into prostitution. The state rebuffed her attempts to seek counseling and welfare benefits, and the police refused to take action unless she filed a formal complaint, which she was too afraid to do. Because she thought her husband was “invulnerable to the law,” she finally shot and killed him in his sleep.

The human rights activist Gary Haugen, founder and director of International Justice Mission, has documented the way in which wealthy and powerful elites in third world countries with dysfunctional public justice systems often circumvent those systems with workarounds that submit their controversies to private dispute resolution, leaving the poor, who of course can afford no such recourse, to depend on the clogged and at times corrupt public courts. That leads to a vicious cycle of cynicism and disaffection in which the system’s democratic legitimacy, the very foundation of its capacity to articulate and enforce the rule of law, disintegrates. And that in turn leads increasing numbers to flout the law, to resort to self-help, or to give up altogether, eroding the traditional claim of the judicial branch to a share of public resources sufficient to perform its mission with competence and integrity. In the meantime, the powerful constituencies that once treated the public courts as their arbiters of last resort develop a diminishing stake in keeping the public judicial system afloat.

I hasten to add that this picture of what sometimes happens abroad stands in stark contrast to the judicial systems over which you preside. We have ample reason to be proud of the integrity and efficacy of American courts, both state and federal. But to say that is not to condone indifference to the early warnings of disintegration.

The magnitude of the problem tempts one to reach for sweeping solutions in some unifying vision of “access to justice” writ large, but the diverse and multifaceted character of the problem resists reduction to any grand and fully coherent theme conveniently captured in a simple slogan. Once one recognizes the perils of rigidly idealistic thinking – something that has from time to time plagued everyone in our “access to justice” office – one comes to a recognition that what is perhaps needed more than an inspiring but abstract and utopian call for a thousand-fold increase in funding is a series of tangible, achievable reforms that will make state courts better at what they do and more engaged in making law and legal remedies accessible to all.

Before I propose three sets of tangible, achievable reforms, let me address an overriding concern that many express with the very idea of active judicial leadership. It is that judges should be neutrals, not participants. They should be objective. They need to remain above the fray. People don’t agree on a definition of “judicial activism” but, in a riff on Potter Stewart’s definition of hard core pornography, they “know it when they see it.” And, if they affix that label to it, they know they don’t like it. But whatever one’s notion of impermissible approaches to judging, there is a basic and often ignored difference between judicial neutrality and judicial inactivity, between judicial objectivity and judicial passivity. Perhaps the greatest image we can conjure of a wise judge is that of Solomon. We all remember his creative pre-DNA-test solution to the problem of adjudicating the contested issue of maternity between two women making competing parental claims to the same infant. The wise king’s proposed solution, which he sprang on the women when he suggested splitting the baby in two while he watched the reactions of both claimants to motherhood, was the very essence of neutrality and objectivity. But it was hardly passive! It was as active as all get-out. Solomon’s wisdom sprang from making justice an active verb.

One inspiring example of the “good” judicial activism is taking place in Philadelphia, where a trial judge named Annette Rizzo launched an innovative mortgage mediation project. Judge Rizzo was initially asked by a particularly progressive sheriff to issue an area-wide moratorium on foreclosure sales, which were ravaging Philadelphia neighborhoods. Judge Rizzo, taking a leaf out of John Marshall’s book, declined to issue that specific relief – which would undoubtedly have garnered her the “bad” judicial activist label – and instead took the opportunity literally to restructure the foreclosure system in Philadelphia. She issued an order that no foreclosure sale could win judicial approval before the lender had at least entered into good-faith mediation with the homeowner, aided by a state-funded housing counselor. The mayor’s office got on board, the relevant stakeholders (including the lenders) offered input, and the program was off and running. My staff and I paid a visit to Judge Rizzo’s courtroom and witnessed the program, which has successfully kept hundreds of families in their homes and permitted many others to achieve more dignified and graceful exits than would otherwise have been possible.

Important reform efforts have also been initiated by state supreme court justices, as with the significant indigent defense reform effort spurred by the Nevada Supreme Court, which issued an order in 2008 calling for a completely state-funded Public Defender system and a permanent statewide commission on indigent defense. Although the Nevada reform effort is ongoing and there is still much work to be done, that state’s high court heroically chose to address systemic deficiencies in its system for fulfilling the obligation imposed by the Sixth Amendment under Gideon – and the promise of equal justice made by Gideon – without being asked to do so in a specific case. Of course, once asked to address the question of systemic deprivation of the protections that Gideon affords, it takes just as heroic a court to answer the call, as the New York Court of Appeals recently did under the visionary leadership of its Chief, Jonathan Lippman, in permitting the plaintiffs’ lawsuit to go forward in Hurrell-Harring v. State of New York.

I would urge every state’s highest court, led by every state’s chief justice, to establish an exploratory committee or task force with the goal of surveying the performance and evaluating the adequacy of the way your state is discharging its federal constitutional duty under Gideon. Judicial leadership of the sort shown in Nevada and New York and elsewhere is necessary if Gideon’s promise is to become more than what Robert Jackson once called a “promise to the ear to be broken to the hope, like a munificent bequest in a pauper’s will.”

Now, let me turn to the first of three areas of possible reform: juvenile justice. Let’s make sure that what happened in Luzerne County, Pennsylvania between 2003 and 2008 never happens again. As many readers know, here thousands of kids waived counsel and accepted pleas – in a system designed so that judges could receive kickbacks for placing children in a residential facility. The complaint alleged that none of the youth without counsel who appeared before a judge and pleaded guilty even had a colloquy about the waiver of counsel or about pleading guilty. They went to a hearing and in a matter of moments disappeared in shackles and handcuffs, for crimes as minor as stealing a four-ounce jar of nutmeg. Now of course the Pennsylvania Supreme Court vacated some 6,500 adjudications and consent decrees, expunged the convictions, and dismissed all cases with prejudice.

The primary goal of the juveniles and their attorneys in Luzerne County was relief in their individual cases, but state court judges can decide to use the lessons from that case to institute systemic change, just as Annette Rizzo took it upon herself to do in Philadelphia.

When we were juveniles, there was an ethos that everyone was out to help the kids, so issues like waiver of counsel weren’t really important. Today, confronted with situations like Luzerne County, we know better. The consequences of juvenile adjudications are serious and long term; the lack of representation can reshape a child’s entire life. Being found guilty can mean expulsion from school, exclusion from the job market, eviction from public housing, and exclusion from the opportunity to enlist in the military. It can affect immigration status. This is serious stuff.

And because it is so very serious, it’s critical that our state chief justices play a major leadership role. They can begin by protecting the right to counsel. The best way to do that is to prohibit the judicial acceptance of counsel waivers in your state by juveniles who have not at least received the advice of an attorney about their options and about the consequences of waiving such an important right. Many state supreme courts have adopted such a rule, including several in the past few years. A few states do not accept a waiver of counsel from juveniles under any circumstances. Every jurisdiction in the country should adopt a rule that at the very least requires consultation with an attorney prior to waiver of counsel.

We know from careful national studies that juveniles who lack counsel are much more likely to plead guilty without offering any defense or mitigating evidence. And without any credible defense, those young people are far more likely to end up in detention or incarceration, where they’re much more likely to be exposed to assault or sexual abuse, much more vulnerable to suicide, and far more likely to commit further crimes after their release. You, as our chief justices, can make a difference. Every child in delinquency proceedings should have access to justice via a right to counsel at every important step of the way: before a judicial determination regarding detention, and during probation interviews, pre-trial motions and hearings, adjudications and dispositions, determination of placement, and appeals.

Beyond waiver, it is time for the states to focus on the entire juvenile system, which has changed so much and yet receives so little systematic attention. We should have Blue Ribbon Commission on juvenile cases in every state, to find out the facts on waiver of counsel, on youth charged in adult court either directly or after transfer from juvenile proceedings, on plea and caseload rates, the qualifications of youth counsel, the collateral consequences for youth of delinquency adjudications and adult criminal convictions, and fees. Fees are important. Juveniles and their families – often poor families – often have to pay for detention, restitution, and victim funds. The National Juvenile Defender Center told our office about a 19-year-old college student who was brought into court in handcuffs because she had not paid fees that had been assessed against her when she was a child. She was held until she agreed to a payment plan.

Florida, Massachusetts, New York, and Washington, have eliminated the indiscriminate shackling of youth in delinquency proceedings. And the rest of the states should follow suit. Now is the time.

A second area in which we can make a difference involves the removal of artificial and often enormously counterproductive obstacles to pro bono representation for limited purposes (so-called “unbundled representation”), pro bono lawyering by attorneys licensed in jurisdictions other than your own, and more meaningful self-representation.

No substantial improvement in the delivery of needed civil legal services is likely unless we can find a way to stimulate more – and better designed and supervised – pro bono activity. It is difficult enough to find capable, well-trained lawyers who are willing to dedicate the time to significant pro bono work, so we simply cannot afford to cling to antiquated rules that, in a misguided application of ethical norms, artificially inhibit willing attorneys’ ability to actually perform pro bono services ably and with integrity.

In particular, there are several rules we should support:

Number One: all states should permit discrete task representation. Roughly 40 states have adopted the ABA’s Model Rule 1.2(c), or something similar, which permits pro bono attorneys to enter into representation agreements of expressly limited scope. These rules allow such attorneys to perform what are often short and simple tasks without taking on the duties and limitations that attend more classic full-scale attorney-client relationships. And because rules like 1.2(c) permit discrete task representation only where reasonable under the circumstances and after informed consent by the client, there is little or no downside.

Number Two: we should sensibly relax conflict rules for pro bono attorneys. Historically, too many well-intentioned and ethically alert attorneys were prevented from rendering needed services—even when those services were as simple as filling out a request for mediation regarding a client’s pending foreclosure—just because their firms had represented some financial or other institution on a vaguely related matter that had an attenuated theoretical interest in the issue at hand. Courts should not require pro bono attorneys who are providing short-term services with no expectation of continuing representation to screen systematically for such conflicts. Indeed, some states have gone even further – Washington, for example, permits pro bono attorneys to engage in short-term pro bono representation, subject to certain reasonable safeguards, even when they know of a lurking conflict.

Number Three: we should examine state rules of practice as they impact pro se litigants. I appreciate the difficulties that folks who can’t afford lawyers pose to states dockets and courtrooms, but as we embrace technology and form simplification we’ll be in dire need of clear rules that govern how court staff and non-lawyers may guide prospective litigants through the process of filling out self-help forms. I realize that unauthorized practice of law rules aren’t a popular topic of conversation around courthouse water coolers, but we must not inhibit the ability of pro se litigants to seek ministerial help in addressing issues as critical as child custody and housing simply because our UPL rules have not caught up with our reality.

In addition to the juvenile-justice and pro bono reforms, a third initiative that I urge is the creation – and, for those 24 states (and the District of Columbia) that have already created it, the care and feeding – of an Access to Justice Commission, whether by that or some other name, that embodies a sustainable institutional commitment to grading the state’s legal system in terms of how well or poorly it is delivering justice to the state’s people. Such commissions, typically created by supreme court rule or order, are deliberately designed to include judges, bar members, civil legal aid providers, representatives of law schools and, in some instances, members of the state’s executive and legislative branches. And they have achieved some remarkable results.

In California, the Access to Justice Commission secured an annual $10 million appropriation from the state legislature for civil legal services, and deserves much of the credit for the state legislature’s enactment of the groundbreaking Sargent Shriver Civil Counsel Act, which establishes civil Gideon pilot projects that will begin next year.

In Washington State, the access-to-justice commission helped establish the Office of Civil Legal Aid in 2006 as an independent agency within the judicial branch, and in addition to increasing civil legal aid from $6.6 million in 2005 to over $11 million just two years later, it played a key role in implementing rule changes to facilitate unbundled legal services and increase cy pres funding for legal aid.

The Texas Access to Justice Commission has approached funding issues creatively and, in addition to securing $2.5 million from the Attorney General’s budget for legal services for victims of crime in 2001, has helped funnel to legal aid offices fees collected from Texas bar members and from out-of-state lawyers appearing pro hac vice. The establishment of statewide Access to Justice Commissions has been called one of the most important justice-related developments in the past decade, and my office fully agrees.

The unifying theme of the three categories of action I am urging is not to be found in any ethereal abstraction. It is, quite simply, that these steps would manifestly improve access to justice in your states, and, they are demonstrably achievable.

And, if the search for a universal solvent for the intractable problems of justice can be paralyzing, the commitment to these achievable reforms can be empowering. So please don’t take the view that the three categories of changes I’ve outlined are so incremental, the success I’m aiming toward so far removed in time, that there’s no point in rushing to get started. To the contrary, the longer it takes to get there, the more crucial it is to begin without delay. As New Orleans Mayor Mitch Landrieu said in his first State of City address earlier this month, “There’s an old saying that the best time to plant an oak tree was 30 years ago. The second best time is now.”

I end with this thought: The trajectory of the moral universe will indeed bend toward justice, as Martin Luther King famously dreamed, only if we act to make the dream real. Unable to realize that goal in a single leap, we must not despair of realizing it step by step. The benefits of each step may seem small – but, as Richard Feynman once described the trajectory of the photon, each little arrow bent to a particular degree becomes in the aggregate a ray at the speed of light, lighting everything in its path. That ray can light our nation and the world if we all do our part.

Laurence Tribe is the Carl M. Loeb University Professor at Harvard University, and is Senior Counselor for Access to Justice in the Department of Justice.

This article was adapted, with permission, from Professor Tribe's Keynote Remarks at the Annual Conference of Chief Justices, July 26, 2010

Tags: civil rights, democracy, justice, Larry Tribe

Author Talk With Paul Farmer

08/04/10

In his new book -- Partner to the Poor: A Paul Farmer Reader -- Paul Farmer, acclaimed 'saint,' chronicles his true-life, world-saving adventures.

Dr. Farmer talks with Diana Silver, Ph.D., about his work and the new book.

DS: Let’s begin with Haiti. How is the relief effort going?

PF: A lot of energy and resources went into immediate rescue and relief efforts -- with predictable results: not many people could be rescued. This is not atypical of a disaster of this magnitude.

The reconstruction efforts are slower. There are fewer resources. It is taking a while to get things going. Though there has been enormous effort to coordinate a better response, we can’t give ourselves good marks yet on reconstruction. For one thing, the number of people in camps with displaced homes continues to grow, not to shrink. That’s the biggest problem: shelter and basic services for people who have lost their homes, or are afraid to return to them. We haven’t been able to help much in this regard.

DS: Is there -- anywhere in this difficult situation -- cause for hope?

PF: Reconstruction is slower than what I/we hoped. This was a catastrophe on a nearly unprecedented scale. Some think as many as 20% of all federal employees were killed; all federal buildings destroyed. So how quickly can we expect reconstruction? But there are glimmers of hope – including the creation of the Interim Committee for the Reconstruction of Haiti, which had its first meeting and is designed to green-light a broad range of solid projects.

DS: Let’s talk about your new book, which is a gift to professors, because it is so beautifully organized. It’s organized dramatically, rather than chronologically. Can you describe the dramatic, organizing themes and say a bit about why you structured the book in the way that you did?

PF: Some of the early pieces cover the anthropology of epidemic disease and focus on Haiti, where I’ve worked for the last 28 years. It moves more broadly to some of the issues that animated the first years of my work, but focuses more explicitly on basic social and economic rights for people living in poverty. By basic rights, I mean the rights to water, health care, education and shelter. The issue of sexual violence runs through the book. It’s a very difficult issue for physicians. There’s a focus on social forces that put some people at risk for illness or other bad outcomes. Racism is an example -- as is gender inequality.

DS: Structural violence is a loaded term. I imagine you use it intentionally. Could you speak elaborate?

PF: It is not an original concept. Many have found it to be too loaded. I began using the term to convey the sentiments and the experience of people I worked with in Haiti, in Peru, later in Africa. These people experienced every day life as violent and used loaded terms to describe their experience.

Let me give you an example. A woman in rural Haiti has many children and spends every waking hour in a struggle for food, for wood to cook with, and for water; she experiences this as a kind of violence done to her. I think it’s better for those in my position to echo her view, not just her anger, but also the sense of injustice with which she regards her experience I’m not wedded to the concept, but it is useful.

DS: In the section on structural violence in the book, you introduce the idea that health is a human right. And, you critique human rights groups that adopt political neutral positions or focus on civil rights, rather than human rights. Is this a fair description?

PF: It is an insider-loyalist critique. A number of prominent rights groups advocate for political and civil rights. These are important struggles. But there are other rights: the right to health care, the right to clean water, the right to education. These are the rights I consistently heard about in places like Haiti. And very often these rights are not much discussed in mainstream health organizations. So, yes, mine is an insider loyalist critique of an overly narrow focus on civil- and political rights.

DS: You have been critical of neoliberalism and some of its solutions to some of these problems. Can you say a bit about this?

PF: There are broad economic policies that favor social safety nets and others that really don’t. If you look back over discussions on various economic disasters in the country -- like the Great Depression -- this was a very vibrant topic of discussion. FDR and his cabinet members were very explicit about the need to think hard about the ill fed, ill housed and unemployed.

This is something Americans ought to be proud of; it’s part of our history too, just as is the more unfettered growth period that can sometimes collapse as we’ve seen with the recent economic set backs. It is important to say that we need to fight more to make sure that everyone has a right to basic health care. We are not going to see this happen under a lot of these more neoliberal economic policies. Another way of putting this: we need to focus on social protection as it benefits our physical and emotional well being, and also strengthens the economic well being of the public.

DS: Some advocate for neo-liberalism on pragmatic grounds. But your critique of neo-liberalism is also made on pragmatic grounds, yes?

PF: If you find 10,000 NGOs, as you do in Haiti, then you know that they are filling a space left by others. The others, in this case, are the public sector, the state itself. I work at an NGO, as a volunteer for Partners of Health. And I work for a private University. (I’m a professor at Harvard, that’s what I do for a living.) So, this is not an attack on the private sector of NGO -- after all, I represent an NGO. But, as NGO’s and non-State actors, we must believe in some basic social safety net to strengthen the public sector’s ability to provide basic services. This is a perfectly fine primary goal for an organization like Partners In Health.

Some people think of Rwanda as a place in which a sort-of neo-liberal economic policy is in place. But, if you look at the Rwanda budget, it is pretty shrunken in health care and education. Yes, there is strong encouragement from the private sector, including direct foreign investment. We need this in Haiti. The question is, do we provide this at the expense of any basic right of the population? The answer is: No. This is not in the interests of pragmatists.

Before the earthquake there was very high unemployment in Haiti, and relentless migration to the cities resulted. There was little investment in public work, safety or education. And so there was a perfect, terrible storm, when something as awful as the January 12th quake hit. Haiti has been terribly vulnerable to natural disasters for many decades, because it has been deforested because people need charcoal. And there is no charcoal, because there has been no significant investment in alternative energy sources. Haiti is not alone in that regard. But, as the recent complex chain of events shows us, you can be absolutely pragmatic and still say, ‘hey, we can put in place some basic systems to protect people from the worst.’

Having a safety net for health care is the ultimate in pragmatism. It is not ideological to say that people need a basic safety net. Same for education. It has been shown again and again that a girl’s education is the best way to promote child survival. What could be more pragmatic than equitable education?

DS: Some of your work has challenged epidemiologists, and the public health community, to look at the impact of economic and political policies on health, and focus less narrowly on individual risks for disease. You've also challenged anthropologists to go beyond cultural factors in explaining behaviors that put people at risk, and to investigate the political and economic context. In these ways, you've been pushing both these disciplines to stretch beyond where they have focused much of their attention over the last fifty years. Was this your intent? And do you think you've had an impact on the disciplines as a whole?

PF: That was my intent. It is difficult to measure impact. For the public health community or epidemiologists, there is always some kind of blinder on any methodology or any kind of disciplinary approach. For anthropologists and public health specialists to be blinded in this way is particularly offensive because it is our job to re-socialize our understandings of phenomena.

Again, going back to Haiti, there is an earth quake at 4.33 on January 12th. It is a natural disaster and also a social disaster. It is the job of some disciplines to work hard to make all of this clear. Why? Because understanding claims of causality, how one thing causes the other, is important to any convention. Going back to medical language, to get both the prognosis and the prescription right, you need an accurate diagnosis. This emerges from a comprehensive examination of the history of the illness -- and all the data that we have is laboratory data and modern biomedicine. The underpinning of that critique of my colleagues in public health and anthropology is that we are not going to get the diagnosis correct if we don’t have an historically deep, geographically broad, view. By geographically broad, I mean that if you are looking at epidemic disease you can’t focus your attention on one administrative unit. Usually in the 20th century nation state, epidemics don’t remain local. There is a lot in the book about epidemics. They never stay local. They always get out of prisons and hospitals, and out of one state and into another.

Parochialism about place, just like parochialism about time, is detrimental if we want a full understanding of big social medical questions presented in Haiti and elsewhere around the world.

Paul Farmer is Professor of Social Medicine and the Chair of the Global Health and Social Medicine at Harvard Medical School.

Diana Silver is an assistant professor of public health at New York University's Steinhardt School of Culture, Education and Human Development

Tags: Diana Silver, health care, JB, Author Talk, Paul Farmer