June 2009

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Rags and Bones

By Jonathan Wallace jw@bway.net

“Don’t ask don’t tell”

            Bill Clinton was a fuck-up. He was a highly intelligent man who believed in many fine things, but in the application, his need for approval, lack of organization and general self-destructiveness led to much bad policy. Of the things he did wrong, the “Don’t ask don’t tell” policy on gays serving in the military was one of the worst.

            Widely touted at the time as a step towards gay rights, it did nothing but legitimize the unfair and dangerous situation which already existed for gay people serving their country: if we discover you, we will persecute and fire you.

            A good thought experiment to perform, regarding any legislation or policy aimed at a particular group of people, is whether it would shock you aimed at another group. If the answer is yes, that law or policy is almost certainly just plain wrong. 

            Most Jews are visually indistinguishable from some Christians. A policy which permitted Jews to serve in the military so long as they don’t tell anyone they are Jewish would be obviously wrong. So was a policy requiring gay people to keep it to themselves.

            The arguments which are still being made today about the danger or disruptiveness of gay desire are ludicrous. A woman officer was quoted in the New York Times for May 1 as pointing out that allowing openly gay people to share a shower is like allowing people of the opposite sex to do so. This is patently false. Differences of gender are obvious, external and physiological. The desire not to have gay people in the environment is based on their putative thoughts. Thoughts have no effect on us. If I can co-exist with someone who covets my wife or my watch, why can’t I co-exist with someone who covets my body? As long as he keeps it to himself, there is no problem; and if he harasses me, the military has rules to deal with that.  (I suspect same sex harassment, anywhere other than prison,  to be a scenario so rare as to be practically nonexistent.)

            Fear of a gay person’s thoughts is really a fear that we ourselves might reciprocate their desire. People’s rights to practice their livelihood, openly and without danger, should never be denied because we are afraid of ourselves.

            There is no moral difference between the question of whether gay people can be integrated into the military, and the issue, solved by President Truman’s 1948 executive order, of whether black people can.  The time has come for President obama to illustrate his greater courage and clarity, and to issue an executive order ending discrimination against gay people.

The Chrysler bankruptcy

            The decline of the automakers symbolizes the decline   of America itself. Something we invented, and did better than than anyone else for decades, has become something we no longer know how to do. We have spent so much time congratulating ourselves for being the best that we never noticed we no longer were. Being superior at something—manufacture, mathematics, war—is not a matter of God tapping you on the shoulder, or of politicians flattering themselves and you, but of constant practice, vigilance, and innovation. How companies as large as Chrysler could go so wrong is somewhat mysterious, but it had to be a combination of complacency, vanity, stupidity,  a belief until it was far too late in monopoly power, and the faith that the government will back you and bail you out in any emergency.  In 1962, when I was eight years old, you could walk down our Brooklyn street past all the large, comfortably finned, American cars and never see an import. My dad drove one Buick LeSabre after another, my entire childhood. When I bought my own first car, a Toyota Camry gave the best value. I only drove American cars when I rented one on the road, and they always seemed shabbily constructed, with gearshifts that rattled loosely when you shifted, and chrome trimmings that peeled away.

            As I have said before, there was a powerful mindset beginning in the eighties that we were superior to manufacture, that we were about the management and sale of information . But even that seems to be done better in India, China and Eastern Europe today than it is here. Anyway, information is not an abstraction; at the very bottom of the pyramid there still needs to be a foundation of expertise in something which pertains to the real world. This was the piece we thought we didn’t need.

            Studs Terkel’s “Working” contains an interview with a teenage hotel bellhop who vapidly fantasizes about inventing an antigravity belt and becoming a billionaire. The United States, like that bellhop, has mistaken the fantasy itself for the hard, exhausting work necessary to realize success.


            Candidate Obama promised to close Guantanamo.   100 days into his administration, it remarkably has the same approximately 240 inmates it had when he took office. There’s been a lot of talk about our allies failing to do enough to help close it by taking detainees off of our hands. And it is clear that every member of Congress desperately doesn’t want prisoners transferred to his or her district. Don’t send them to Leavenworth, says Senator Brownback.

            I have never seen any acknowledgement that it was an act of extreme rudeness to the Cuban people to place Guantanamo in their country without their consent. The implication was that if prisoners escape, they can menace or kill Cubans instead of our people. Anyone who wants us to continue holding enemy combatants, but wants people of other nationalities to take all the risk, is a terrible hypocrite.

            The other very disturbing element is that the Obama administration is considering how to rationalize the continuing indefinite detention of some of these prisoners without trial.  While there were some POW camps in the U.S. and Canada during World War II which held German and Italian soldiers captured on the battlefield, that war ended four years after we entered it. Soon after, those men were all repatriated to their home countries. The war against Al Qaeda is not a conventional land war in any sense, with any end in sight, and we will probably hold some of these combatants for the rest of their lives, or at least until they are quite old. While there was never an issue so far as I know as to whether any World War II POW was an actual enemy soldier—they were all captured in uniform during battles— we have acknowledged that many Guantanamo detainees were simply in the wrong place at the wrong time, or were sold to us by personal enemies or venal people looking to make money on false information. The moral danger of keeping innocent people locked up is very great. Every effort should be made, by people more impartial than the guards of Guantanamo and their military superiors, to review the circumstances under which each detainee was captured or arrested.

            It is very disturbing when a released detainee picks up arms against us, and it has certainly happened. But some of the people freed from U.S. prisons when new DNA technology established their innocence have since committed crimes. Unless we move from a domestic culture of judicially establishing guilt, to one of maintaining huge preventive detention camps for suspicious people, we will always have to deal with the dangers of doing the right thing.

            It compounds the problem, and adds very much to the shame of the situation, that there are a few of the detainees, such as Khalid Sheikh Mohammed, who have committed acts which can be tried in the criminal court system, but who may not be because they were tortured to obtain information. Continuing to hold such people without trial compounds the war crimes we committed in torturing them in the first place. Anyone who is suspected of involvement in actual terrorist crimes should be tried in a U.S. criminal court, regardless of whether torture was applied.

            The New York Times for May 2 reports that the Obama administration is now seriously considering continuing the flawed system of military trials at Guantanamo instituted by the Bush administration. This would be a terrible mistake. First. It seems to signal strongly that the President is backing away from his promised to close the camp. Second, the main motivation for continuing the military commissions would almost certainly be to prevent evidence of torture from coming out in United States courts and from compromising the results of trials. Torture was a war crime, and also a profound mistake, committed by the prior administration. We should do the best we can to correct the moral imbalances, while living with the practical results. Obama has no responsibility to perpetuate the crimes and errors of his predecessor.

Wooden skis

            In February 1978, a famous blizzard shut down Boston for the better part of ten days. I was living there, attending law school at the time, and I noticed the only people having any fun were the cross country skiers, so I went into the local winter sports store and bought my first pair.

            I knew nothing about skis and had the misfortune to meet a dishonest salesperson. He should have sold me a pair of unbreakable synthetic waxless skis, which had recently become available. Instead, I left the store with a pair of beautiful, fragile wooden wax skis, of the kind which should be owned only by athletes and serious hobbyists.

            I enjoyed the experience of waxing the skis. You checked the temperature and the condition of the snow (old, new, wet, dry) and consulted a chart from which you selected the appropriate wax. Applying it was an enjoyable tactile experience; the wax smelled good and was fun to work with (except for the sticky klister, applied from a tube, used for the wettest, warmest snow; it got all over your hands and everything else).

            But I quickly recognized how fragile my skis were, and used them in constant fear of snapping a tip (which I am proud to say, never happened).  Soon after, I foolishly took them to France, during a year’s leave from law school. On a series of weekend excursions with a group called CIHM—Chalets Internationaux de Hauts Montagnes—I defended American pride by following French skiers (on rented synthetic skis) across streams and areas where melted snow exposed rocks and gravel. By the end of a few of these weekends, my skis had terrible gashes and scars. “Ils ont souffert,” commented one of my French acquaintances, examining the underside of my wooden skis after one of these excursions.

            Within a year or so after, I bought the first of a series of anonymous, interchangeable fiberglass skis. More than thirty years later, I still have my wooden skis in a closet. I have used them only once in recent years, when a binding broke on my other pair. When I was leaving Brooklyn and a host of possessions, including some other skis, went out on the sidewalk to be scavenged by my neighbors, I couldn’t bring myself to leave my beautiful, damaged wooden skis there.  The scars on them are like the lines on my face; I earned them and would not part with them for anything.

Fried green tomatoes at the Cracker Box restaurant

            I wrote here a couple months back about the phenomenon of phony food, dishes on the menu of national chain restaurants which claim to have specific ethnic or regional roots (such as barbecue, or jerk), but which are really sautéed in sugary sauces that are only faintly reminiscent of the cuisine they purport to be.

            I am happy that there still exist authentic places which resist the global homogenizing trend. One such is the Cracker Box in Fort Myers, Florida, founded in 1962. A little square diner with colorful trimmings, it drew me in by its sign promising fried green tomatoes, which I had heard of only as the title of a novel and Hollywood movie. Inside, there is a bar with Budweiser and Bud Light on tap, a little rack of toy cars and trucks for sale by the cash register, and walls with very desultory nautical decorations. The menu charmed me by the typos in the biography of the owners’ family, though I suspected they might be too good to be true (“threw out” for “throughout”). And the fried green tomatoes were everything I hoped for, very tender and not at all overwhelmed by the breading.

            Just as there are, by popular belief, power points in landscapes, where a mystical energy gathers, places like the Cracker Box over the years acquire much powerful mana from clinging to their original roots and maintaining their obliviousness to the leveling winds. Little cafes in Greece where you enter the kitchen and point to what you want, the Silver Star diner in Manhattan, the Mad Dog bar in Virgin Gorda, and now the Cracker Box, are magical places for me.

Souter resigns

            Supreme Court justice David Souter, who just resigned, was a conservative appointment with a liberal voting record, so appointing his replacement will not greatly change the make-up of the court. However, Republicans and conservative groups seem to be gleefully gearing up to fight any candidate selected by Obama. A natural tactic in what is clearly emerging as a campaign of pure obstructionism, the right wing is happy to have an issue to organize around. By opposing a liberal “litmus test”—the idea that candidates must have a clear liberal track record on guns, abortion or regulation—the conservatives are of course applying a litmus test of their own.

            Once upon a time, the perception was that a President, presumably elected by the will of a majority of the people (I add the modifier only because of the 2000 experience), had a right to appoint judges of his own political leanings. In those days, the confirmation process was supposed to be limited to the sole questions of whether the candidate had the skills and integrity necessary to be a judge. As politics has become more divided and dishonest, all about scoring cheap ideological points rather than building consensus, the filibuster has increasingly been used to prevent the president from shaping the courts as he sees fit. (Its important to note here that the Democrats started it with their opposition to Judge Bork, a Nixon appointee to the Supreme Court.)

            I imagine that Obama, consistent with his record so far, will appoint a candidate who is pretty close to the center. Arguably this is a smart move—why get involved in huge, illusory, superficial ideological debates when there is an economy to fix and a war to wage? Looked at another way, the president, by hewing close to the center, is granting the right wingers an influence over policy they no longer deserve based on the numbers. The saddest part of it is that it won’t buy him an ounce of cooperation and respect from the Republican party.


            A federal case brought some years ago against lobbyists for Israel, charging they were trafficking in classified information, has just been dismissed.

            On the one hand, this country is full of over-zealous prosecutors, constantly seeking novel legal interpretations to expand their own power and influence while ruining the lives of solid citizens who genuinely believed their activities were legal. This is an everyday story.

            On the other hand, as an American Jew, I have serious concerns with the audacity and entitlement of the Israel lobby, and wouldn’t mind seeing it dealt a blow on the nose.

            As a civil libertarian, I resolve this conflict in favor of less prosecution, not more. However, the activities of the Israel lobby are frequently not kosher, even when they don’t rise to the level of crimes.

            The greatest problem is that the lobby covers for itself by officially pretending not to exist. Since the days when J. Edgar Hoover claimed there was no Mafia, I am not aware of another organization which acts in plain sight while the powerful claim not to see it.

            The National Rifle Association, which frequently takes positions and makes utterances which I actually despise, is proud to operate very visibly.  By contrast, the Israel lobby uses attack dogs to bring down anyone who wants to focus attention on it. Professor Alan Dershowitz of Harvard Law School is currently the most notorious of these. When , Norman Finkelstein, an assistant professor at DePaul University, wrote a book describing the ways in which Israel uses the Holocaust as an excuse and a cover for some of its own most unsavory activities, Dershowitz waged a successful campaign to get his college to deny Finkelstein tenure. Similarly, anyone trying to shine a light on the lobby can expect to find the Anti-Defamation League on his ass; the conflation of anti-Israel opinion with anti-semitism was used as  a dishonest but highly successful tactic as far back as the 1960’s.

            As an American Jew, aware that the Jews have been chased from country to country for thousands of years, oppressed, denied the right to practice their religion, killed in pogroms and then in systematized mass murders in the 20th century, I am grateful that the United States has welcomed Jewish people as valued citizens and  contributors as no other country in the world has. It is our reciprocal obligation, I believe, to be Americans first, Jews second. This is no more than is expected of, and fulfilled by, most Protestants and Catholics in this country.

            I think the Israel lobby disregards that obligation in using power and money to enforce blind support of a small country based on a flawed conception, that often seems quite contrary to America’s political interests.

            As I have said of Israel for fifteen years, the idea of a Jewish country with Arab citizens never made sense. It makes even less today, now that the demographics of birth rate suggest that Israel could be forty percent Arab in the near future. Israel (whose new, rightist government has just rejected the two state solution which its predecessors had accepted, however hypocritically, as a given for many years) is locked into a perpetuity of discrimination, arrest, bulldozing of buildings and continuing horrendous injustice as a cornerstone of its existence. In that sense, it is morally almost indistinguishable from apartheid-era South Africa (which was Israel’s close ally).

            Jews like Finkelstein who speak out against Israeli injustice are attacked by Dershowitz and the other defenders of the lobby as self-haters. The reality is that there is a strong element in the American Jewish community which not only does not recognize that American Jews should be U.S. citizens first, but which does not countenance freedom of speech in that community. American Jews, like non-Jewish politicians who rely on the Israel lobby’s donations and support, are frightened to criticize Israel.

Immigration cruelty

            Our immigration system is very cruel. That’s before you even consider the issue of privately contracted immigration prisons in which detainees accused of faking ultimately die of easily treatable conditions.

            The immigration court system itself is run by people who don’t care about rights or rules. Administrative judges come with a built-in conflict; they are employed by the agency they are supposed to judge and second-guess. An immigration judge who didn’t deport enough people, who granted asylum too often, would have some explaining to do.

            They tend not to be the brightest tools in the shed to begin with, and when they are burnt out they can project a mood of flat, almost sociopathic unconcern, like the immigration judge described in the Times for May 4 who told a mentally ill woman who wasn’t cooperating that he would mark her absent from court. And did.

            In the early 1980’s, when I first began the solo practice of law, I took some immigration work to make ends meet. I was hired one day by the family of a Salvadorean woman who had been picked up in a sweep. It was the Reagan years and El Salvador, in the grips of a right wing dictatorship we supported, was a murderous place.

            I went down to the detention facility in the Brooklyn Navy Yard, where I was told my client had signed a consent to deportation.  I spoke to her, explained the asylum process and withdrew the consent form, while entering my own appearance on her behalf. I set an adjourned date for her first hearing.

            When I came back on the new date, I learned that the same INS attorney who had bullied her into signing the consent, had intimidated her again, into firing me, and signing a new consent form. I hadn’t been informed of anything, and my client was already back in El Salvador.

            One of the fundamental tenets of the lawyer’s code of ethics is that a lawyer does not approach another  lawyer’s client, for any reason, without his knowledge and consent. This rule is intended to protect, among other things,  against exactly what had happened: a prosecutor bullying a defendant into a plea or concession, outside of the presence of the defense attorney. I was enraged, unable to imagine anything more sleazy and illegal than what this lawyer had actually done. In theory, he should have been seriously sanctioned or even disbarred. I briefly thought about filing a complaint against him, but my client was already gone, the family had given up, and it felt like a lonely crusade for a solo practitioner concerned with paying the rent. To this day I feel remorseful that I did not try to take that attorney’s license. I never heard anything more about my client or what happened to her back home.

Kent State

            It’s the thirty-ninth anniversary of the killing of four young middle class white people  at Kent State University in Ohio by National Guardsmen. Three were exercising their First Amendment right of free speech in demonstrating against the Vietnam war. The fourth believed in the war, and happened to be passing by. After years of trials, all of the Guardsmen were cleared of negligent homicide, though they could never establish what caused them to turn and start firing into the crowd. The then governor, Rhodes, who sent them out, never expressed any remorse. That day was a major part of my education, that the politicians of their own country, who until then I believed sent troops only to kill people less privileged than myself, and usually of different races, were capable of killing their own children as well, when convenient. The damage inflicted at Kent State has since been forgotten, but it has never healed.


            Pakistan is a terrible problem that just won’t go away. A nominal ally headed by a very weak civilian government, it has an intelligence agency, the ISI, which is not under civilian control and which seems to give significant support to the Taliban and even al Qaeda. Meanwhile, the government is making incredibly inept, weak and one-sided deals with the Taliban insurgency, most recently giving them control of the Swat Valley. The consensus seems to be that Bin Laden and Mullah Omar both have been hiding in the part of Pakistan bordering Afghanistan, which has also been out of government control for many years. The unique threat confronting the U.S. in Pakistan is that our ally, the civilian government, seems to be a thin veneer across the top of a country ready to rise up in ignorant, emotional force to support the fundamentalists if pushed too far (by the death of civilians in predator strikes, for example). Add to this the fact that Pakistan has nuclear weapons, and we are poised on the edge of a really terrible nightmare. Supposedly, we don’t have a real handle on how many nukes there are in Pakistan, or where they are; I hope this is false, and some non-inept CIA team has a really good plan for eliminating Pakistan’s nuclear capability if the country falls to the Taliban.

            Pakistan’s precarious stance, which has been too much ignored in public discussion and by the media, explains why we haven’t caught Bin Laden—we can’t freely go in looking for him, nor do we seem to have acquired sufficiently good intelligence, though we have eliminated some of the other leadership. It also highlights the stupidity of invading Iraq and diverting resources away from the really dangerous areas.

Sonia Sotomayor

            Judge Sotomayor’s nomination to replace David Souter on the Supreme Court was a really smart move by the president. Despite Limbaugh-slander, she is centrist, professional, and detail oriented, certainly not a raging ideologue. Because she is Latina, a filibuster or concerted smear campaign by the Republicans will help end their hopes of picking up significant Hispanic votes, a key to their comeback.

            Certainly, Obama is disappointing the left wing of his party, by steering close to the center in all things. But that is his nature, and also his sense of what the country wants, to be governed from the center. The Republicans are struggling with an old need to skew far to the right of the population, and he doesn’t want to make the same error in the other direction, or give them fodder to involve him in battles that are far from the important challenges, the economy and health care,  on which he wants to concentrate his administration.

            Judge Sotomayor, in her career, appears to have made a couple of unwise remarks, particularly about the superior wisdom of old Latina women over white males and about setting policy as a judge. These are certainly mild allegations, compared to those which have been made against past candidates (sexual harassment of Anita Hill, anyone?) But they are consistent with the pernicious trend of recent times, driven by dishonest political point-scoring and media news-hunger, that every candidate must be artificially and impossibly perfect and have no flaws whatever. Sotomayor is a real human being who has done a good job as a judge. The Founders thought that was all that was required; until quite recent times, Supreme Court justices were approved if they were smart and honest enough to do the job, even if they weren’t completely pure, perfect, and silent.

            Sotomayor backed a Latino civil rights organization? The first black justice on the court, Thurgood Marshall,  came from the NAACP. The Republicans are going to accuse Sotomayor of partisanship for Latino culture and causes verging on racism? According to an editorial by Charles Blow in the New York Times for May 30, Justice Rehnquist as a clerk to Justice Jackson opposed Brown v. Board of Ed and helped fashion a legal basis for the continuation of “separate but equal” laws. Justice Roberts repeated racist jokes in memoranda he wrote while in the Reagan White House.

            Sotomayor is highly qualified, is in no sense an activist judge (just an activist who became a centrist judge). She comes from the mainstream of today’s Supreme Court judges, the Court of Appeals, where she has been detail oriented, attentive to precedent and very conscious of her responsibilities. Any attempt to derail her appointment will center on her racial and gender status as an outsider to the court, and will by extension be in service of the Republican effort to isolate a black president and his appointees.