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Update on the Gonzales Report

I have now read the Inspector General’s report, which can be examined here. As with the other reports that have recently emanated from Fine’s office, it is well crafted. I have been critical of Fine’s disinclination to recommend serious sanctions in many of the internal investigations he has handled, but his investigative work reflects a high level of professionalism. If anything, it is marked by caution in coming to conclusions and a willingness to fairly and carefully weigh the defenses that are offered up by his targets. These are the signs of a fair-minded prosecutor, and they are, frankly, little in evidence in today’s Department of Justice, particularly in politically charged public integrity cases.

It appears that some of the Gonzales notes at the focus of the query relate to a briefing of the “Gang of Eightâ€â€”Congressional leadership figures, including Nancy Pelosi, Jane Harman, and Jay Rockefeller on the Democratic side—about surveillance procedures. This has been a focus of some recent sharp criticism within Congress as Republican leaders imply that the Democrats knew of and at least implicitly approved the Administration’s tactics in overriding the limitations on domestic surveillance put in place by the FISA statute. The Gonzales notes will therefore be of some historical interest as records of the depth of the briefing that was given.

The report also demonstrates a rather curious defense mounted for Gonzales by his attorney, George Terwilliger, a man whose name repeatedly figured on the short list approved by movement conservatives to succeed Gonzales. Terwilliger appears to have taken aim at former Deputy Attorney General Jim Comey, arguing that he was an interloper at the hospital bedside conversation that Gonzales conducted with Ashcroft, at which Andrew Card and Mrs. Ashcroft were also present. The argument can’t work because Comey was the acting Attorney General at that point, as Ashcroft had turned over his duties to him on leaving for surgery. Moreover, Comey’s own testimony suggested he had been handling the very issues that Gonzales discussed with Ashcroft and had come out against the approvals that Gonzales sought. So why does Terwilliger make this argument? Clearly Gonzales felt particularly threatened by some evidence that Comey gave. It may be a while before we get to know the full scope of this relationship, but I suspect there is much more to this story.

There is a thematic consistency in Gonzales’s testimony, and it is forgetfulness. Just as he could not remember the contents of discussions about firing DOJ staffers and U.S. attorneys, particularly when the White House was involved, he doesn’t seem to remember anything much about the FISA controversy, the conflict with senior DOJ officials who were so moved by it that they threatened resignation, or what he did with highly classified documents in his possession. Maybe they were in his unlocked briefcase, maybe he took them home with him, maybe he put them in a safe. It’s all a blur, he says. One thing is clear: he didn’t pay it much mind.

But there is a bombshell lurking in the report. Gonzales testified that he did not recall the compartmentalized security classification given to certain documents

But the notes were placed in one or two envelopes (there is a conflict on that, too), and Gonzales wrote the security classification and his initials on it.

So is this failure of recollection really credible? The Justice Department, in taking a pass on any action, is essentially saying this: if you’re a member of the home team and you mishandle classified documents, no sweat. In fact, you can even make false statements to the FBI agents who come to interview you about it without repercussions. A different standard applies to those who are not members of the home team, as Sandy Berger learned. This is setting a remarkably low standard for the nation’s chief law enforcement officer. But a politically motivated double standard on enforcement issues lies at the very soul of the Bush Justice Department.

John Conyers, the chair of the House Judiciary Committee, had the right word for the Justice Department’s response: “shocking.†Conyers demanded that the Justice Department explain, yet again, why it will not take enforcement action against its senior-most officer. But perhaps Justice is merely awaiting the last play–the Inspector General’s report on the U.S. Attorneys’ case that should be out any day now.

Has Fredo Dodged a Bullet?

Department of Justice Inspector General Glenn Fine has released another report, this one looking into allegations that former Attorney General Alberto Gonzales mishandled classified materials. The actual text of the report will be out in a few hours, but in the meantime, the Washington Post has the bottom line: Yes, Fine concludes, Gonzales is guilty of mishandling classified materials. But nothing will come of it. There will be no recommendation of criminal action.

Carrie Johnson reports:

The program, we are told, represents the crown jewel of the government’s surveillance operations—matters so secret that extraordinary measures are necessary to protect against disclosure of any details; the matters with which Gonzales was dealing were the most sensitive aspects of this program. The inquiry concerns notes that Gonzales maintained while he was working in the White House–notes used in connection with that dramatic nighttime visit that Gonzales paid to Attorney General Ashcroft in his hospital room for purposes of securing his signature on an authorizing document.

The Justice Department apparently considers that no harm was done by the violations and that no disciplinary action should be taken. That’s a self-serving conclusion. Curiously, when the violations involve members of the opposition political party, the Justice Department takes a very different approach to the question. Ask former National Security Adviser Sandy Berger. He committed the exact offense that Gonzales committed: removing classified documents in violation of protocols governing their storage. In his case, too, no disclosures were made to unauthorized persons and the national security was in no way compromised. Indeed, the papers that Berger mishandled were not really terribly sensitive. So what did the Justice Department do? Berger was prosecuted, convicted of a misdemeanor, and lost his law license.

Yeats’s Sailing to Byzantium

Christus Pantocrator is flanked by Emperor Constantine IX Monomachos and Empress Zoë in this Hagia Sophia mosaic from 1020 CE. Licensed by Écrasez l’infâme under Creative Commons Attribution ShareAlike 2.0.

That is no country for old men. The young
In one another’s arms, birds in the trees
—Those dying generations—at their song,
The salmon-falls, the mackerel-crowded seas,
Fish, flesh, or fowl, commend all summer long
Whatever is begotten, born, and dies.
Caught in that sensual music all neglect
Monuments of unageing intellect.

[More…]

–William Butler Yeats, Sailing to Byzantium first published in The Tower (1927) in: The Collected Works of W.B. Yeats vol. 1, pp. 197-98 (R. Finneran ed. 1983)

Is this yet a country for old men? As Republicans gather in the Twin Cities, prepared to nominate their oldest first candidate for president ever, 72-year-old John McCain, that’s a question hovering in the background. A question of poetical introspection turned into Realpolitik. Indeed, the desire to avoid or negate this question may underlie the surprising decision to pick 44-year-old Sarah Palin as his running mate.

But the plight of being an old man in a country that values youth is just one of the many strands of this complex, sentimental yet transcendant poem by Yeats, surely one of his truly great efforts.

Examined alone from the perspective of geography, this work is a marvel. It describes a voyage to Constantinople, or does it? The salmon-falls and mackrel-crowded seas surely speak of an island between Britain and the North Atlantic, and not the calm and turquoise waters of the Bosphorus and Aegean. Can we doubt where this voyage begins? But it begins with a recognition of the frailty of human existence–â€an aged man is but a paltry thing,†the poet writes, a “tattered coat upon a stick.†Yes, the voyage begins in Ireland, but it is more precise to say that it begins at an age, a point of consciousness of human decay, of proximity to death.

This voyage is a journey in time at least as much as space. It is a voyage backwards, a search for a golden age whose memory radiates like those gold-coated mosaic stones. Byzantium is the perfect image not least because it is a lost culture. It ceased to be before the dawn of the sixteenth century. It was supplanted by something alien–in the hysterical cries of its last leaders, by the onslaught of murderous barbarians. With its fall, a culture was extinguished. Or was it in fact? Byzantium was lost, but it remained a vision, a beacon for civilizations in the East and West. A new Byzantium was born, a city in the realm of ideas.

Does Yeats seek out the traces of this lost culture? They are woven through the poem, but they surely are not his ultimate object. Is it not instead the “artifice of eternity� Typical of Yeats, the images here are Christian, and the words themselves suggest a theology of sorts. But it seems that Yeats’s meaning must lie elsewhere, in the quest for a homeland for old men. The voyage that Yeats has undertaken surely is an internal one, a search for resolution at the end of a life devoted to art. Was this a life well spent? And will his labors provide guidance, sustenance, meaning to those who follow in his wake? Is this not also the ultimate question put by the muted voices of those lords and ladies of Byzantium, the question of what is past, or passing, or to come?

Lincoln–The Duty to Think Anew

Abraham Lincoln (1862)

We can succeed only by concert. It is not “can any of us imagine better?†but, “can we all do better?†The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise — with the occasion. As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country.

–Abraham Lincoln, Annual Message to Congress, Dec. 1, 1862 in: Abraham Lincoln: Speeches and Writings 1859-1865, pp. 414-15 (Libaray of America ed. 1989)

Elder Joseph’s Simple Gifts

‘Tis the gift to be simple, ’tis the gift to be free,
‘Tis the gift to come down where we ought to be,
And when we find ourselves in the place just right,
‘Twill be in the valley of love and delight.
When true simplicity is gain’d,
To bow and to bend we shan’t be asham’d,
To turn, turn will be our delight,
Till by turning, turning we come round right.

–Elder Joseph Brackett, Simple Gifts (1848)

Listen to a performance of Simple Gifts here in the orchestral setting found in Aaron Copland’s Old American Songs (1950), the performance is by Marilyn Horne. Copland also used the song as the basis for the movement “Calm and Flowing†in Appalachian Springs (1945).

Recently I have been listening to the Sony Classics “Copland Collection†which surveys Copland’s major orchestral works in chronological order–roughly nine hours of recordings, many of them conducted by Copland himself. The recordings are marvelous, and listening to them beginning to end gives a different understanding of Copland and his genius as a composer. His early work is experimental, exciting, but also frequently dark and dissonant. It undergoes a remarkable transformation in the years of the Roosevelt and Truman presidencies. Copland’s best works come from this period. They are powerful, at times fiercely patriotic expressions of American sentiment, filled with optimism, commitment and passion. This man was, I believe, the greatest composer America produced in the last century, and his work spoke to the country in a manner that few composers in the classical tradition have ever managed.

Copland, a native of Brooklyn, sees the beauty in simplicity, in the folk tradition, and in the unassuming and quiet lives of the nation’s heartland. He also portrays the vigor and energy of the great industrial cities, and he had a special affection for the rhythmic music of Latin America. (In the chronology, El Salón México of 1933 seems the break-through piece in which a vibrant celebration of life supplants darkness and doubt). Copland holds up this vibrant, and at times chaotic mosaic of cultures and traditions as a virtue in the face of the totalitarian onslaught. It is his answer to the fascist mythmaking of the thirties which pushed idea of racial supremacy, national identity and a cultural and social monolith.

In all of this, a central position is held by the quiet simplicity of the Shaker tradition. Few of Copland’s works manage this ideal of quiet simplicity quite as well as Simple Gifts, and the Marilyn Horne performance is one of the best.

America launches the second phase of the presidential campaign season this week, as the Democrats gather in Denver. America is being presented with two different visions of its essence and how it can evolve in the coming decades. The low-road campaigners will instinctively, but falsely, reject the legitimacy of the opposing vision. It is a good time to take stock of common roots and ideals before the clash and pettiness of the final stretch of campaigning takes hold. Simple Gifts reminds us of the way: it beckons to a dance that stands as a symbol for life and social interaction; it urges us to value the gifts we have, to cherish them and use them wisely, but with a heart filled with love and generosity. It is an American ideal which is too quickly forgotten in the pettiness and venality of election campaigns.

Bayle on the Chronicler’s Duty

Didier Barra, Le jugement de Salomon (ca. 1620)

Tous ceux qui savent les lois de l’histoire tomberent d’accord qu’un historien qui veut remplir fidèlement ses fonctions doit se déponiller de l’espirit de flatterie et de l’espirit de médisance, et se mettre le plus qu’il lui est possible dans l’état d’un stoïcien qui n’est agité d’aucune passion. Insensible à tout le reste, il ne doit être attentive qu’aux intérêts de la vérité, et il doit sacrificier à cela le ressentiment d’une injure, le souvenir d’un bienfait, et l’amour même de la patrie. Il doit oublier qu’il est d’un certain pays, qu’il a été élevé dans une certaine communion, qu’il est redevable de sa fortune à tels et à tels et que tels et tels sont ses parents ou ses amis. Un historien, en tant que tel, est comme Melchisédec, sans père, sans mère, et sans généalogie. Si on lui demande: D’où êtes-vous? Il faut qu’il réponde: Je ne suis ni Français, ni Allemand, ni Anglais, ni Espagnol, etc.: je suis habitant du monde; je ne suis ni au service de l’empereur, ni au service du roi de France, mais seulement au service de la vérité, c’est ma seule reine, je n’ai prêté qu’à elle le serment d’obéissance; je suis son chevalier voué.

Those who know the laws of history appreciate that they coincide for the proposition that a historian who wishes to perform his office faithfully must rid himself of the spirit of flattery and libel and must, to the full extent possible, place himself in the state of a Stoic who is beholden to no passion. Indifferent to all else, he must be attentive only to the interests of the truth, to which he must sacrifice resentment provoked by an injustice as well as the remembrance of favors, and even the love of country. He must forget that he comes from a certain country, that he was raised in a certain faith, that he owes his success to this person or that, he must forget even his parents and friends. A historian is thus like Melchizedech, with neither father, nor mother, nor indeed a genealogy. If asked: Where do you come from? He must reply: I am neither Frenchman, nor German, neither Englishman nor Spaniard, etc.: I am a citizen of the world; I am not at the service of the emperor, nor of the king of France, but simply at the service of truth, who is my sole queen; I have taken no oath but of obedience to her; I am her devoted knight.

–Pierre Bayle, Dictionnaire historique et critique, “Usson,†Remarque F (1697)(S.H. transl.)

More Prosecutorial Mischief in Mississippi

Washington pundits anticipate significant Democratic pick-ups in the upcoming senate races in which a largely Republican class faces a hostile electorate. One of the surprising vulnerabilities for the Republicans is in Mississippi. Senator Trent Lott resigned his seat before his term expired, with his resignation closely linked in time to the announcement of charges against his brother-in-law Dickie Scruggs. To fill out the remaining year of Lott’s term, Governor Hailey Barbour tapped Roger Wicker, who is now seeking to win the seat in his own right. He’s being challenged by former Governor Ronnie Musgrove, who is given strong odds at picking off the seat for the Democrats.

But Wicker has a very powerful ally. His name is Jim Greenlee, and he is a prior donor to Wicker’s congressional campaign. Curiously, Greenlee neglected to note his position when he made the donation. He is the U.S. Attorney appointed by President Bush in northern Mississippi. But as the campaign season opens in earnest, it seems that no one is providing Wicker’s campaign with more valuable support than Greenlee.

The Greenwood (Mississippi) Commonwealth reports:

The editor of the Commonwealth, Tim Kalich, notes that for the last year he has greeted claims of politically motivated prosecutions by the Bush Justice Department with skepticism. But careful study of this case caused him to change his mind. There is simply no explanation for the bizarre course charted by the prosecutors except partisan political manipulation.

The Mississippi Daily Journal came to the same conclusions:

The Daily Journal points out that if the campaign contribution to Musgrove was prosecutable, then most of the state’s Republican office holders would be facing prosecution as well. It notes the curious pattern of selection in the Mississippi U.S. attorney’s offices that consistently investigate and target only Democratic candidates and usually right in the middle of an election cycle.

In his speech last week to the American Bar Association, Attorney General Mukasey delivered this promise:

The developments in Mississippi show exactly what Mukasey’s promise is worth.

In Pursuit of Kafka’s Porn Cache: Six questions for James Hawes

James Hawes had a brilliant start to his career as a novelist with A White Merc with Fins, and he’s gone on to have one of his works filmed and to write a work of biting satire. But before Hawes was a novelist, he was a Kafka scholar. And now he has returned to his old passion with a book entitled Why You Should Read Kafka Before You Waste Your Life (published as Excavating Kafka in Britain). The book has kicked up a storm in Germany, where its satirical style has gone unappreciated. I put six questions to James Hawes about Franz Kafka and a book designed to debunk the Kafka mythmakers which is accused of making some of its own.

1. After a remarkable start as a novelist and satirist you’ve turned to a work that occupies the middle ground between conventional literary criticism and satire. You have a background in Germanic philology and philosophy, as your book on Kafka demonstrates. Tell us what influence this (and Kafka in particular) had on your career as a novelist and satirist in another language.

Franz Kafka (1906)

I studied Kafka long before I tried to write myself and inevitably didn’t have the “strength†(in Bloom’s critical terminology) to resist him: my first attempt at creative writing was a stage-play called Harry Kafka’s Crime and Punishment and all my first attempts at prose were in Kafka-clone German. All my books contain at least one image or phrase stolen straight but unacknowledged from Kafka, I suppose as sort of private homage. As a writer, I am above all in awe of his unearthly technical ability to make you empathize with his characters (i.e., accept their point of view, their psychological “realityâ€) without ever pleading for them. I wish to God I knew how he did it.

2. Your book drew initial press attention based on your disclosure of Kafka’s private cache of porn, namely issues of a subscriber-only publication called The Amethyst, later renamed Opals. I haven’t seen the porn stash you talk about but I am familiar with Franz Blei and his journals, especially Die Insel. Blei published literary works (some a bit trashy, others classic) and art by Aubrey Beardsley, Félicien Rops, and some of their contemporaries. Now what exactly constitutes “pornography†is very much a topic for legal and moral judgments, but this stuff strikes me as pretty far away from Hustler magazine—perhaps a bit risqué, but not much more than that. It’s also a pretty firmly entrenched aspect of the esthetic environment of Kafka’s day—I think of Thomas Mann’s magical portrait of beauty and decline in Death in Venice, especially of those rotting strawberries his hero consumes. Those strawberries constitute the vehicle of death, as it turns out–quite a graphic image when you think about it. Do you really think the label “pornography†is fair? Are you trying to suggest by it that there was a prurient side to Kafka’s personality? Wouldn’t it be more appropriate to applaud his repudiation of turn-of-the-century prudery and sexual repression?

Well, please do check the pictures out for yourself before you accept the party line that these are really just cutting-edge literary journals. The way the Kafka industry has closed ranks against my book on this is truly remarkable, because the “big daddy†of Kafka-biographers, Klaus Wagenbach, first drew the public’s attention to the real nature of Der Amethyst back in his epochal 1958 book, Kafka: Biography of his Youth. There, he says straight out that this was, in fact, “a collection of the most beautiful–and often, the coarsest–erotica.†But Wagenbach chose, as has everyone ever since, not to actually show this material to his readers. This was the age of Klimt and Schiele. Viennese society was not notably prudish by contemporary standards–yet Der Amethyst was banned as “immoral†in 1906 specifically because of one of these illustrations (which is why Blei had to change the title). There’s very little in Kafka’s life, in his mid-twenties, that would deserve the phrase “repudiation of turn-of-the-century prudery and sexual repression.†On the contrary, his sexual life as a wealthy young German-speaking lawyer-about-Prague was very typical of the day. And until he was faced later on (say, from late 1910 onwards) with the clearly looming choice between abandoning his youthful lifestyle (i.e., getting married) or risking becoming the last bachelor out in town, he seems to have been, in truth, entirely untormented by his brothel visits, etc.

This isn’t a moral attack of any kind. I merely want to make the central point that Dr. Franz Kafka was in many ways simply like other men of his time, place and class.

3. If we had to shrink your myth-debunking exercise down to just one thing, it might be that this supposedly neurotic, self-obsessed, highly introverted character who cowered in the shadow of a tyrannical father and whose genius went unrecognized was actually a charming, engaged, sexually active professional with a good record of successes both as a lawyer and a writer. But doesn’t the K-myth, as you put it, largely come from confusing the author with his characters? And with respect to the relationship between Kafka and his characters, what do you make of the role of humor in this writing?

I’d be the first to welcome a Rule of Literary studies saying that biography should be entirely banned. What we do sometimes need with Great Dead Writers is to restore an awareness not of their (alleged) psychology or their biographies, but of the world in which they lived and which they took for granted as context. In the book, I compare a Shakespearian audience, who, when the curtain rose on Hamlet, would all have known, without needing to think for a second, that when king dies and his brother (not his son) takes the throne, that son is going to have very good reason to be scared. A modern audience, however, has to be told this. So there is a vital role for history in re-creating the context of literature–but God save us from the amateur psychologizing (and P.C. sub-politics) of literary studies! If we clear all that rubbish away, I think we clearly see Kafka’s writing as black social comedy, a first cousin of Dostoyevsky’s painfully funny short stories.

4. You tell us repeatedly that Kafka invested his money in war bonds at the outset of World War I, then lost his shirt when the Danubian monarchy ceased to exist. But there’s nothing in his writings that suggests he had chauvinistic or militaristic leanings–rather more the contrary, though he didn’t seem much taken with the politics that led to and sustained the war. What is the message you take away from this—other than the obvious, that his investment instincts were not nearly as good as his father’s?

There’ve been countless attempts to present Kafka as a closet socialist, a friend of Czech aspirations, and so on. The fact is that in a public proclamation of late 1916 (to raise funds for a hospital exclusively for German-speaking mentally-damaged soldiers of Kaiser Franz Josef’s multinational army), Kafka speaks explicitly as a “German-Bohemian Folk-Comrade.†His thinking vis-à-vis the Habsburg Empire seems to have been “non-political.†Not in an oppositional sense at all, simply as conformism to the state of affairs. As Reiner Stach (whom I was very sad and surprised to see rubbishing my book even while admitting he hadn’t read it) says of Kafka’s apparent views on Habsburg Foreign Policy, “the ease with which Kafka parroted the official jargon is disconcerting.â€

Kafka spoke Czech and was unusually interested in Czech culture for a German-speaker, but his fundamental cultural identification was with Greater Germany–his publishers were all from Germany, after all. Buying about $40,000 at today’s values of Habsburg war-bonds is simply more evidence that he assumed, and indeed hoped, that Germany and Austria would win World War I. Only the ignis fatuus of hindsight makes it seem surprising to us that a Jew in Prague could want this. To most Central European Jews in 1914 Russian was the language of pogroms and German the language of law, order, and progress. When I was shooting the BBC documentary of this book, the author and Holocaust survivor Arnost Lustig (who knew Brod personally) told me heart-breaking stories of German-Jewish university professors who, even in Buchenwald, found it almost impossible to give up on the notion that the nation of Goethe and Beethoven was somehow still “their†natural team, and cheered German victories against the Russians. This world is so lost in the horror of the Shoah that it’s almost impossible for us to re-imagine–but that’s how Kafka felt: in late 1917 he literally dreams of dark-uniformed Prussian Guards marching to his rescue.

5. Kafka was a doctor of both laws, and elements of legal philosophy and theory, often with a heavy religious overlay, appear in most of his major works. His writings are widely read and discussed in the legal academy today, fueling discussions on procedural fairness, justice, transparency, and the humane treatment of persons under detention. In fact, googling “Kafkaesque†recently, it seems to be a staple of discussion of the U.S. prison and justice system in Guantánamo, where prisoners were held in extended isolation, subjected to a presumption of guilt and techniques designed to attack their personality and self-identification, denied confrontation with charges and evidence and subjected to procedures which were vague, indeterminate and manipulated by some unseen hand, usually in Washington, D.C. In Abu Ghraib, we learned that the prison guards developed the habit of writing the accused crimes on prisoners with a marker to shame and identify them, recalling The Penal Colony. But you seem to suggest that this is reading far too much into Kafka, who is merely describing the inquisitorial legal process he knew, not critiquing the Austrian legal system he knew or the one that emerged after the war. But isn’t it true that in the years right after the war, collapse of the machinery of justice was a major concern among intelligentsia in the German-speaking world in which Kafka traveled? Isn’t it fair to say that Kafka was concerned, perhaps even obsessed, with a justice system that would facilitate a righteous life?

I don’t think so. What Kafka is obsessed with is our suicidal readiness to buy into grand narratives of redemption and absolute certainty, however ramshackle and visibly corrupt they may be. The vital element in his works that the K-Myth obscures is that his heroes are utterly complicit in their own “entrapment.†These are not tales of innocent people suddenly swallowed up by miscarriages of cosmic justice. Of all the philosophical roots of Kafka’s thought, I believe that the single most important is Nietzsche’s famous and terrifying insight regarding the “nihilism†of modern, post-religious man (my translation is necessarily a free one): “mankind would rather long for nothingness than have nothing to long for.†This Nietzschean analysis of why modern people do what they do may well be very apposite to both the killers of 9/11 and the blank-eyed porn-stares of the Abu-Ghraib abusers.

6. The protagonist of The Metamorphosis, Gregor Samsa, you tell us, takes the form of a dungbeetle (Mistkäfer) as an act of literary homage to Goethe’s Werther, which contains a reference to a beetle (Maienkäfer) and to several other passages which seem to have influenced Kafka. You seem to be planting Kafka firmly in the German literary tradition and to be suggesting that he can’t really be understood extracted from that matrix. Am I reading you correctly? It seems incontrovertible that Kafka read and admired Goethe and that he drew heavily on many German writers in his own works, but aren’t you making an argument against the universality of one of the most successful figures of twentieth century literature? Why should you read Kafka if you don’t know Arnim from Zeltner?

When I found that beetle-image in Werther, by sheer drunken chance, I couldn’t believe no one had seen it before, so I right away fired off a (still drunken) email to the Chair of German at Oxford, whom I’d once met. He said he didn’t know of anyone who’d found it, either. This was well before any thought of “Kafka’s porn†was around: it convinced me graphically that there really is what I’ve called “the unbearable blindness of Kafka studies†and that anything that could be used to crack that frozen sea, however sensationalist it might seem, was justified–if only it would help get back to Kafka’s writing as it really was, is, and always will be. And why read Kafka today? Because his analysis of the way we’re so fatally, suicidally tempted by visions of a gold-lit past, complete with all its alleged certainties and securities, is more needed today than ever. His works are one great warning against swallowing the grand illusions, one great demand that if we want to really live, we have to grow up and look life in the eye.

More’s Immortality

Pieter Boel, Vanitas (1663)

Behold a light far brighter than the Sun!
The Sun’s a shadow if you them compare,
Or grosse Cimmerian mist; the fairest Noon
Exceeds not the meridian night so far
As that light doth the Sun. So perfect clear
So perfect pure it is, that outward eye
Cannot behold this inward subtile starre,
But indisperst is this bright Majesty,
Yet every where out shining in infinitie;

Unplac’d, unparted, one close Unity,
Yet omnipresent; all things, yet but one;
Not streak’d with gaudy multiplicity,
Pure light without discolouration,
Stable without circumvolution,
Eternall rest, joy without passing sound:
What sound is made without collision?
Smell, taste and touch make God a grosse compound:
Yet truth of all that’s good is perfectly here found.

This is a riddle unto outward sense:
And heavy phansie, that can rise no higher
Then outward senses, knows no excellence
But what those Five do faithfully inspire
From their great God, this world; nor do desire
No more then then know: wherefore to consopite
Or quench this false light of bold phansies fire,
Surely must be an act contrary quite
Unto this bodies life, and its low groveling upright.

–Henry More, The Argument of Psychathansia; or, The Immortality of the Soul from Philosophical Poems (1647) in The Complete Poems of Dr. Henry More, p. 73 (A. Grosart ed. 1878)

Henry More is a bright but not particularly well known star in the constellation of the English metaphysical poets. A relative of Sir Thomas More, he spent his years as a philosopher at Cambridge, and his poetry is much like his philosophical writings. More is concerned with a reconciliation of philosophical and religious ideas, and in his writing we see the confluence of Platonic and Neoplatonic thought with the mainstream protestantism of his age (Anglican, with visible strands of Calvinism). But he takes a notably embracing and affirming attitude towards science–engagement with mathematics and the natural sciences is for him a devotional act, a reverential grappling with the mysteries of the universe. In fact, though More is probably best known for his concept of the “fourth dimension†(the spiritual world), he was also an accomplished mathematician. We see these ideas in this remarkable poem, and particularly in the numerology, since for More all numbers derive from and are given meaning by their relationship with the whole (â€Unplac’d, unparted, one close Unity.â€) For More the mathematical and spiritual worlds reflect one another, so in the moral world the concept of unity is mirrored in the notion of spiritual love, from which all moral and ethical laws flow as fragmentary elements. More forms a remarkable bridge between two fellow Cambridge men, John Milton and Isaac Newton. The traces of Milton’s thought and writings are apparent almost everywhere in More’s writing, whereas Newton is hardly to be imagined without the environment that More helped to craft at Cambridge–particularly the advocacy of natural science and fearless scientific inquiry.

Listen to the opening sonata and title aria from the Cantata “Ich habe Lust abzuscheiden†by Dietrich Buxtehude. This work was composed in Buxtehude’s days as the organist of the Marienkirche in Lübeck, probably around 1670, and it carries No. 47 in the historical-critical index of Buxtehude’s works (BuxWV). The text is taken from Philippians 1:23 (συνέχομαι δὲ á¼Îº τῶν δύο, τὴν á¼Ï€Î¹Î¸Ï…μίαν ἔχων εἰς τὸ ἀναλῦσαι καὶ σὺν ΧÏιστῷ εἶναι, πολλῷ Î³á½°Ï Î¼á¾¶Î»Î»Î¿Î½ κÏεῖσσον·—For I am hardpressed between the two; I long to depart and be with Christ, for that is far better.) The work unfolds very slowly and laden with pathos in a way that presages Bach’s passions. (After hearing some of Buxtehude’s organ music, the twenty-year-old Bach walked 250 miles to Lübeck to visit the aging master–this was in 1705, just two years before Buxtehude’s death). The aria speaks of weariness of the world and its illusory vanities, using a series of metaphors typical of the age and location. Human existence is likened to a shipwreck and reunion with heaven is called a safe harbor. A superior recording of this canata with Emma Kirkby singing the soprano part can be found on this Chaconne recording.

Military Judge Finds Political Manipulation in Gitmo, Again

The proceedings in the Guantánamo military commissions continue, and the professional participants continue to grapple with the poorly disguised efforts of the Bush Administration to fix the outcome. JAG attorneys active in the commissions have frequently cited Thomas W. Hartmann as the source of their concerns. Hartmann, whose civilian job is general counsel to Mxenergy Holdings Inc., the Stamford, Connecticut gas producer and distributor, was handpicked and brought out of the JAG reserves to serve as the Bush Administration’s stage manager for the Guantánamo productions. His formal position is as “legal advisor†to Susan J. Crawford, the convening authority. Crawford, a retired military judge, previously worked for Dick Cheney and is known as a crony of David Addington.

In concept, Hartmann plays a supervisory role over the process in an administrative sense. He is also supposed to review decisions of the commissions and make a recommendation to Crawford before he passes them on to her for finalization and approval. However, according to testimony taken in the Gitmo proceedings, Hartmann played his hand crudely from the outset. He appeared before a Senate committee suggesting repeatedly his belief that torture-induced evidence could be used, and denying that waterboarding was torture. His highly evasive performance caused Republican Senator Lindsey Graham to express disgust.

When the first charges were announced, Hartmann appeared on national television brandishing harsh labels and prejudging cases on which he was slated to exercise an appellate review function—raising questions under professional ethics rules which later fueled challenges against him.

As the cases proceeded, accounts of Hartmann’s bullying and intimidation of other lawyers participating in the process circulated. In the Salim Hamdan case, his involvement drew a challenge, and after the court heard evidence of Hartmann’s improper conduct that included specific allegations that he was jockeying to have cases publicized and tried “before the elections,†he was banned from involvement in the case. Hartmann refused to resign, and protested that he was doing precisely what was called for by his job description.

In the last week, Hartmann faced a second challenge in another case. The former chief prosecutor, Colonel Moe Davis, testified that Hartmann had lobbied hard for the prosecution of an Afghan detainee named Mohammed Jawad, apparently because Hartmann felt the case would play well to an American television audience. Davis was followed by Gen. Gregory Zanetti, who testified that Hartmann routinely bullied other attorneys and was inappropriately aggressive in pushing for prosecution of certain cases that he felt had media value. Zanetti concluded that Hartmann’s behavior was “abusive, bullying and unprofessional. . . pretty much across the board.†Consistent with his public remarks, Hartmann’s actions reflected a particular bias in favor of aggressive prosecution of cases which he feels could be exploited politically to the advantage of the Bush Administration.

The current chief prosecutor, Col. Lawrence Morris, defended Hartmann, stating that the issues raised reflected nothing more than “a superficial personality conflict.†Morris is Hartmann’s direct subordinate. Interestingly, this is the same defense that Hartmann adopted when his conduct became the subject of an internal Defense Department probe.

Now a second military judge, Col. Steve Henley, has ordered Hartmann’s removal from the proceedings, sustaining the accusations raised against him. In an order handed down on Friday, Hartmann was banned from participation in the case, and the defense counsel were advised that they could make submissions in their quest for access to exculpatory evidence directly to Crawford, bypassing Hartmann.

For an attorney to be formally admonished and removed from legal proceedings twice for unprofessional conduct is an extraordinary matter. However, Hartmann is defiant, insisting that his actions are proper. One wonders if the disciplinary authorities of the Connecticut bar are following these developments.

Update: Readers advise me over the weekend that Hartmann is not a member of the bar in the state in which he most recently practiced, Connecticut, but he is admitted in Illinois and Missouri.

Solzhenitsyn—The Challenge of the Modern Age

Ilya Yefimovich Repin, Tsar Ivan Grozny Murders His Son (1885)

Even if we are spared destruction by war, our lives will have to change if we want to save life from self-destruction. We cannot avoid revising the fundamental definitions of human life and human society. Is it true that man is above everything? Is there no Superior Spirit above him? Is it right that man’s life and society’s activities have to be determined by material expansion in the first place? Is it permissible to promote such expansion to the detriment of our spiritual integrity?

If the world has not come to its end, it has approached a major turn in history, equal in importance to the turn from the Middle Ages to the Renaissance. It will exact from us a spiritual upsurge, we shall have to rise to a new height of vision, to a new level of life where our physical nature will not be cursed as in the Middle Ages, but, even more importantly, our spiritual being will not be trampled upon as in the Modern era. This ascension will be similar to climbing onto the next anthropologic stage. No one on earth has any other way left but — upward.

–Aleksandr Isayevich Solzhenitsyn, Commencement Address at Harvard University, June 7, 1978.

I remember Solzhenitsyn among other things by this amazing and carefully provocative speech he delivered at a Harvard commencement. The speech fell during a period of growing anti-militarism on university campuses that followed the Vietnam War. Solzhenitsyn was one of two historically significant voices of criticism that the Soviet Union produced in this era–the other, still more powerful voice was Andrei Sakharov’s. Each in a sense followed in the path of one of the two great intellectual movements that have dominated Russian thought since the time of Peter the Great: Solzhenitsyn was the bearer of the Slavophile tradition, and Sakharov of the Westernizers. For Americans who followed Solzhenitsyn’s critique of the excesses of the Soviet Union, the Harvard speech may have come as something of a shock. Like a discourteous guest, he took aim at some of the things about America that troubled him and that mattered. He disdained the nation’s pervasive materialism, the secularism of its society, and the lack of moral courage to stand for its values. His words seem, from the distance of thirty years, well crafted and his criticisms ring true on many points. Solzhenitsyn was a man with a powerful gift of insight and an uncanny ability to express truth about great injustices in simple human terms. But when it came to the expression of a coherent political vision, he faltered and sometimes seemed maladroit–as has been the case with many great artists in human history. Still, his words spoken at Harvard are patient words of criticism from a well-meaning visitor, and this is a time to remember them.

Shortly after posting this, I noticed that Harvey Mansfield had written an essay on the same Harvard speech in the Weekly Standard. This essay is well worth reading, as is the critique that Larisa Alexandrovna wrote noting where Mansfield goes off the tracks. Mansfield’s attempts to place Solzhenitsyn in the tradition of classical antiquity don’t work in my mind. He is very deeply rooted in another tradition, that which would make Moscow the Third Rome. Solzhenitsyn was, in a sense, the last Russian monk. We was an important, though imperfect, voice.

The Zero-Calorie Debates

In 1988, the decisive moment in the presidential campaign may have come when CNN’s Bernard Shaw asked Dukakis this question, opening one of the Bush-Dukakis debates: “Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?†It was a classic “gotcha†question, and Dukakis treated it as an opportunity to give his views on the death penalty, handled it bloodlessly, and was widely viewed as having lost the contest.

Recently Josh Green has grabbed headlines with a look at some unseemly memoranda from the Clinton campaign, in which Hillary was offered strategic choices for engaging Barack Obama that look remarkably like the choices that John McCain now appears to have accepted. But some other documents from the recent Clinton campaign offer very astute insights into the campaign process. One quite remarkable document was prepared by Hillary’s senior advisor Sid Blumenthal and an NYU grad student working with the campaign, Dan Freifeld. It takes a look at the kind of questions that are habitually asked at presidential debates. I attach it here. (James Fallows has also discussed this memo.)

In the 2008 primary season, the debate process expanded dramatically. There were some four dozen debates involving the major presidential candidates. But did this help enrich the democratic process? Hardly. Remarkably, the problem is not the candidates or the campaigns. It is the quality of questioning that came from the carefully selected media questioners. The questions actually asked are remarkably predictable. By and large, the questioning operated to lower, not to raise, the caliber of the political debate.

As the authors noted in reviewing some 352 questions asked in 17 debates that involved Hillary Clinton in the 2008 campaign through January, not a single question was asked about the actual operation of the machinery of government. The approach that most questioners favored focused instead on two categories: “gotcha†questions designed to expose a failing or fault of a candidate or trip the candidate up, or “puff†questions designed to make a particular candidate look good. This shows a transposition of the role of the questioner. Ideally he or she should be helping the voter understand the candidates, their personalities, their abilities and their policies. But increasingly the questioners have become participants in the process and thinly cloaked rivals or advocates for candidates. This raises serious questions about the imagined disinterestedness of questioners.

But Blumenthal and Freifeld focus in on the type of question which properly should lie right at the heart of the political debate and in fact is never asked: how would a candidate deal with a specific piece of the apparatus of government which is misperforming. “Government is broke. How will you go about fixing it?†For instance:

Or how’s this?

You can count on it. This question is far too serious to be asked in a process that favors the trivial over the substantive. Our media would much rather focus in on—and indeed obsess over—a candidate’s relationship with a minister who espouses strange or unpopular ideas, whether his name is Hagee or Wright. And that impoverishes the entire political process.

The Mukasey Doctrine

Prior to his confirmation, Michael Mukasey fessed up, in a written response to Senator Dick Durbin, to a meeting the White House arranged with a group of movement conservatives. The team he met with had a simple agenda: They wanted his assurance that he would not appoint special prosecutors to go after administration figures involved in serious scandals at the Justice Department, including the U.S. attorneys scandal and the introduction of torture with formal Justice Department cover, and they wanted his assurance that Justice would continue to provide legal cover to “the Program.†The team who met Mukasey included figures on the periphery of the scandal who may have had personal reasons to fear an investigation. But Mukasey is clearly keeping the understanding that brought him to the cherished post of attorney general. And that’s bad news for the Justice Department and its reputation.

Today he addressed the annual convention of the American Bar Association, and expanded upon what may be known to future generations as the “Mukasey Doctrine.†This doctrine holds that political appointees in the Justice Department who breach the public trust by using their positions for partisan political purposes face no punishment for their crimes. In the Mukasey view, this is all simple political gamesmanship—“boys will be boysâ€â€”and sufficient accountability is provided by exposing their games to the public limelight.

After reviewing in the briefest terms the recent internal Justice Department probe into the politicization of the hiring process in the honors program, with respect to immigration judges and in other areas, here’s what Mukasey has to say:

Note how Mukasey plays the entire affair down and uses the traditional language of the criminal defendant–for him it was a “system failure.†His language is passive: things evidently just happened. But in fact a closer read of the Inspector General’s report shows that the figures involved and the schemes adopted had a clear provenance in the White House, and specifically in the warren of Karl Rove. The actors under investigation, Kyle Sampson and Monica Goodling, had come with Alberto Gonzales from the White House. They benefited from an extraordinary delegation of authority from Gonzales that allowed them, two thirty-somethings with little experience, to exercise the authority of the attorney general in the hiring and firing process. This didn’t “just happen.†It was the result of a careful plan for partisan entrenchment at Justice—consciously pursued in defiance of the law. A serious investigation would have focused on the senior figures responsible for this program. So what is the penalty for such a systematic violation of the law? Well, according to Mukasey, there isn’t one. Those involved have already suffered enough. Yes, they suffer because their misdeeds are now known.

But in fact, the Justice Department didn’t willingly lay this bare. It had to be dragged kicking and screaming to the truth. Its instincts throughout the entire process were to cover up and lie about what was being done—as the inspector general documented in excruciating detail. And while Michael Mukasey praises the career professionals around him, the facts are that he has surrounded himself with political flacks who were deeply enmeshed in the cover up.

Mukasey insists that the process of partisan entrenchment has been checked following his arrival. A measure of skepticism on this point is warranted. In fact, the problem is far broader than the two probes undertaken by the Justice Department’s internal investigators. In a recent interview with a former first assistant U.S. attorney, I collected details of a widespread buy-out program used by the Gonzales and Ashcroft Justice Department to remove career professionals in several U.S. attorneys offices. In one case I have examined, this tool was used to replace career professionals with hacks who were obviously hired in violation of the civil service rules. But this matter has not yet even been probed.

Still, the two IG reports on hiring are a mere prelude to the forthcoming report on the U.S. attorney’s scandal. The message that Mukasey is sending seems to be this: he will refuse to appoint a special prosecutor to look into the matter, whatever the inspector general suggests. In the Mukasey view, it will be enough punishment for the truth to come out.

Yet in a single sentence, Mukasey gave a different signal.

How serious is Mukasey about this promise? He’s had plenty of opportunities so far, and there is no sign of action from the attorney general. Indeed, the entire thrust of his speech gives grave reason to doubt there will ever be any action at all. And with the next report, Mukasey’s promise may be put squarely to the test.

Georgia on My Mind

Today America’s media continues its love affair with a political star who has already faded from the stage, and fills out the balance of its airtime with stories from the Olympics in Beijing. But behind this classic display of media distraction, a new, colder and more threatening world is being born. A resurgent Russia flexes its military might over a former vassal state, now independent and aligned with the United States. Georgia is Russia’s whipping boy. Georgia has been Vladimir Putin’s favorite target for some time now, it was an obvious choice. Georgians have been assertive in their hostility to Russian hegemony and acerbic in their comments about Putin personally.

Four and a half years after the Rose Revolution, the Georgians have constructed what may be the most vibrant democracy on former Soviet soil. Their economy has been modestly but surprisingly successful. They have steered a sharp Westward course, pushing for NATO membership and aligning themselves with America even in its more unpopular undertakings, such as the war in Iraq. For Georgians, the choice was simple. America stood for the ideals of an open society and a free market. It offered the promise of transformation. And America was the paramount military power on earth, a power they could depend upon. But Georgia’s confidence in America, and specifically the Bush Administration, may well prove tragically misplaced.

In 2000, I visited the central Georgian city of Gori, now under assault by a column of Russian tanks and being subjected to Russian aerial bombardment. Through much of its history, Georgia was divided between two kingdoms, one on the Black Sea and the other in the interior. Gori stood at their joining point, the nation’s historic heart. I went to Gori with my young friend, the Georgian minister of justice, and on the drive out from Tbilisi, we discussed his understanding of the challenges faced by his country. Russia, in his view, presented some positive examples and some threats. He was impressed with the effort of a new Russian government to wrestle the country back from the oligarchs, to stabilize the tax revenue, restore central control over the provinces seeking autonomy, and to put the Russian government back on its feet. But he was suspicious about the new Russian leader’s commitment to democracy and his pursuit of jingoistic policies to whip up public support. My young friend, Misha Saakashvili, is now the besieged president of Georgia, and the new Russian leader we were discussing was Vladimir Putin.

After riding the Rose Revolution to power, Saakashvili adopted a set of strategies that reflected a careful study of Putin’s first thousand days. Oligarchs were put under the microscope, forced to pay taxes, and had their wings clipped. The nation’s empty treasury was slowly filled. The door was opened for entrepreneurship, and foreign investment began to flow into the country. Saakashvili also adopted a firm hand with respect to the petty enclaves that did a dance around the authority of the central government, acting quickly to reincorporate Adjaria. But there are important differences between Saakashvili and Putin, and they can be reduced to this: Misha is committed to democracy and an open society; Putin, betraying his KGB roots, never has been.

Last summer, I gave a speech in Tbilisi looking into the near-term future. What would come of relations between the United States and Russia? I predicted a cold snap. The United States and the Europeans would support the aspirations of Kosovo for independence, and Russia would retaliate. Georgia would be the immediate target, and the Georgian enclaves of South Ossetia and Abkhazia would be the vehicle. If the Americans could wrest Kosovo from Serbia, so reasoned Putin’s advisors, then we can take the Georgian enclaves from Tbilisi. Over the last half year, Moscow has carefully mustered a large military force in the North Caucasus, waiting for the right moment to strike. This week, as the world’s attention came to focus on Beijing, and the Government in Tbilisi–in a costly miscalculation–sought to reassert its control over South Ossetia–Putin saw his moment.

When I spoke in Tbilisi last summer, a perplexed young Georgian came up and asked me, “But what about NATO? With America’s support, Georgia will become a member of NATO. Won’t that make a difference?†The Bush Administration was then pushing the idea of NATO membership for the Georgians and its support gave them a good deal of confidence. But I explained why it wouldn’t happen. The NATO membership issue would be decided by the NATO members as a whole, and at present American prestige and support within its most important alliance system was at a historic low point. U.S. support for Georgian membership would count for very little.

The Georgian leadership, and indeed a whole generation of Georgians, tethered their hopes to George W. Bush and the hollow promises of his administration. Now at the moment of truth, Bush will almost certainly let them down. He has overextended America’s military presence around the world, whittling down America’s uniformed professional military just as he has undertaken two simultaneous wars. The Pentagon is telling Bush that he has stretched the nation’s fighting force perilously close to the breaking point. A conflict involving a major military power, like Russia, is beyond the realm of contemplation. Vice President Cheney, whose bellicose rhetoric has done much to provoke the problems now bubbling in the Caucasus, says that the Russian acts of aggression in Georgia “must not go unanswered.†But thanks to the serial strategic misadventures that make up Bush-Cheney foreign policy, there is little prospect of Russia’s actions being answered by a flex of military muscle of the United States or of NATO. Putin’s calculation is that an America bogged down in two conflicts in the Middle East will let him give the Georgians a whipping. Putin is probably right.

The world now enters a new phase. Russia has reasserted itself as a military power which will not tolerate backtalk and independence on the territory of its old imperium. The foreign policy and national security calculus of the United States and of Europe have just gotten much more complicated. Enjoy the Olympics.

Milton’s Golden Compass

William Blake, The Ancient of Days (1797)

On heav’nly ground they stood, and from the shore
They view’d the vast immeasurable Abyss
Outrageous as a Sea, dark, wasteful, wilde,
Up from the bottom turn’d by furious windes
And surging waves, as Mountains to assault
Heav’ns highth, and with the Center mix the Pole.

Silence, ye troubl’d waves, and thou Deep, peace,
Said then th’ Omnific Word, your discord end:

Nor staid, but on the Wings of Cherubim
Uplifted, in Paternal Glorie rode
Farr into Chaos, and the World unborn;
For Chaos heard his voice: him all his Traine
Follow’d in bright procession to behold
Creation, and the wonders of his might.
Then staid the fervid Wheeles, and in his hand
He took the golden Compasses, prepar’d
In Gods Eternal store, to circumscribe
This Universe, and all created things:
One foot he center’d, and the other turn’d
Round through the vast profunditie obscure,
And said, thus farr extend, thus farr thy bounds,
This be thy just Circumference, O World.

–John Milton, Paradise Lost bk vii, lns 210-31 (1667)

This is one of the most wonderous passages of one of the greatest poems in the English language, the work of John Milton. The William Blake drawing set above it, The Ancient of Days, seems unmistakably influenced by these lines, indeed it recasts the fantastic and tempestuous vision of Milton’s poem and visually realizes his golden compass, a tool by which god measured and cast the earth and continues to wield by way of judgment upon the product. As in much of Milton there is a curious meeting in these lines of the world of Greek antiquity and of the Biblical tradition. But the essence, the conception of a world driven by a celestial mechanics not altogether fathomable by humans, is distinctly a classical Greek idea. This notion was present even in the Homeric vision in which gods regularly appeared equipped with instruments capable of bringing devastation or favor to humankind at their whim, but it lies at the center of the Pythagorean tradition which saw the divine as a cover for a series of mathematical or scientific relationships not now understood, but capable of being learned by the adept. And perhaps the greatest figure in this tradition is Plato, who called god the Divine Geometrician, and who invoked the challenge of Prometheus–the challenge directed to humankind to unlock these secrets.

The golden compass describes a world of order and reason, a place where the possibilities open to humankind are great. But it also describes the limits of this world, beyond which lies maddening and incomprehensible Chaos. This profoundly religious vision which nevertheless accepts science and its central role in man’s happiness is essential to understanding the genius that moved England in the seventeenth century, and which put her on a path toward greatness and leadership in the world. It lies also unmistakably at the center of the American Idea, received from the generation which fought England’s Civil War and whose ideas bore fruit in America’s Revolution.

Shaftesbury on the Meaning of Life

William Hogarth, Soliciting Votes (1754)

This is life—recruiting, repairing, feeding, cleansing, purging; ailments, rags, excrements, dregs. Which of all the sensations is it for which life is eligible? Where is the day or hour in which we can say we live upon the present, and that our happiness is not still future and in promise? Which part of our past life would we desire to live over again?… Everything wastes and is perishing; everything hastens to its dissolution… Mortalities must every day be expected—friends dropping off, accidents and calamities impending, diseases, lamenesses, deafness, loss of sight, of memory, of parts… All is misery, disappointment, and regret. In vain we endeavour to drive away those thoughts; in vain we strive by humour and diversion to raise ourselves; which is but to fall the lower. He and he only is in any degree happy, who can confront these things; who can steadily look on them without turning away his sight; and who, knowing the sum and conclusion of all, waits for the finishing of his part, his only care in the meanwhile being to act that part as becomes him and to preserve his mind entire and sound, unshaken and uncorrupt; in friendship with mankind, and in unity with that original mind with respect to which nothing either does or can happen but what is most agreeable and conducing, and what is of universal good.

–Anthony Ashley-Cooper, Third Earl of Shaftesbury, Philosophical Regimen, “Life†(ca. 1698) in: The Life, Unpublished Letters and Philosophical Regimen of Anthony, Earl of Shaftesbury p. 256-57 (B. Rand ed. 1900)

The Justice Department’s Truthiness Problem

“Truthiness,†a phrase coined by the comic Stephen Colbert, has emerged as one of the hallmarks of the Bush Administration. Truthiness, Colbert tells us, is something a government spokesperson knows “from the gutâ€â€“without regard to evidence, logic, intellectual examination, or facts. “Truthiness†has the outward appearance of truth. However, statements offered as “truthiness†are invariably false. Worse, the person who utters them usually knows they are false. But telling lies and getting away with it is a political art form. Call it the art of “truthiness.â€

The Bush Justice Department has a huge truthiness problem. This helps explain why public confidence in the Justice Department just reached an all-time low point. Americans now have more confidence in the integrity and reliability of Post Office employees than they do in federal prosecutors and FBI agents. But is the Justice Department going to start coming to grips with its “truthiness†problem, or will it just plod along through inauguration day, 2009?

The clock is ticking on a series of important internal investigations. In recent weeks the public has gotten important details about a Bush Administration effort to pack the career-level ranks of the Justice Department with political hacks, in violation of laws protecting the integrity of the civil service. The Inspector General concluded that two figures, Kyle Sampson and Monica Goodling, both trusted acolytes of Karl Rove, implemented this program, successfully hiring dozens of hacks for the Justice Department and firing or passing over career employees for a variety of illegal and unethical reasons. They were enabled in the process by an unprecedented sweeping authorization given them by Alberto Gonzales–an authorization designed to give Gonzales himself plausible deniability with respect to an illegal, and possibly criminal exercise.

In one case a former U.S. attorney was taken down based on unsubstantiated (and false) rumors that she was a lesbian. In another a prosecutor lost a promotion when it became known that he was married to a known Democrat. In a third an individual in an unguarded moment let slip some words of praise for Condoleezza Rice. True, Condi is a prominent Republican and a loyal Bushie to the core. But Monica Goodling found this expression of loyalty disturbing. After all, Condi supported abortion rights. The level of political vindictiveness that dominated this process of hiring and firing is astonishing—though not to those who have closely tracked developments at Justice over the last seven years.

In her recent book, Dark Side, Jane Mayer interviews senior political appointees, all card-carrying Republican conservatives with long records of faithful service to the Republican Party, who describe the atmosphere of fear and intimidation which the White House had carefully cultivated in the nation’s erstwhile temple of justice. The message was clear: the Justice Department existed to do the White House’s political bidding. Any suggestion of independence or fidelity to the law would be rudely crushed. Many were convinced their phones were being tapped illegally. Some even feared that they might be targeted for a hit or “accidentally†run over by a truck (the favored tactic of the Ukrainian mafiosi with whom Karl Rove was seen hobnobbing at Yalta only a few weeks ago). Any hint of caution about the White House’s agenda would be enough to destroy a career. This is the environment in which the Justice Department launched roughly six criminal probes into Democratic political figures for every one targeting a Republican. It was a Justice Department hijacked and converted into a partisan political attack machine.

Still, the Inspector General’s report concluded that the hacks were there to stay. Glenn Fine took a “forgive and forget†attitude towards the perpetrators, recommending no criminal action against them, though that was plainly a viable option. And most disturbingly, the Inspector General report stopped with Sampson and Goodling, not venturing to peel back the curtain to look at the person who trained them and for whom they were working: Karl Rove.

On another front, Justice’s internal probe of a corrupt and politically motivated series of prosecutions and lawsuits targeting prominent Democratic politicians in Missouri continues. Former senior officers of the department have engaged criminal defense counsel and refused all cooperation with the probe. It’s fairly clear that at least one of them made false statements to Congress, and possibly to other investigators—potential felonies. Yesterday Murray Waas noted that grand jury subpoenas had been issued to Bradley Schlozman and Hans von Spakovsky, two G.O.P. operatives who served in high positions in the Bush Justice Department and who consistently instigated schemes designed to suppress the voter turnout of minorities and other likely Democratic constituencies, and bullied and pressured U.S. attorneys around the country to implement their schemes, with high-level backing. Schlozman was the man in charge of the Justice Department’s voting rights policy for key periods, then went into the field to serve as U.S. Attorney in Kansas City, when the U.S. attorney there refused his directions to launch a series of bogus lawsuits. Alabama-born Spakovsky has long been a key G.O.P. vote suppression expert. He worked closely with Schlozman, and was recently nominated by President Bush for service on the Federal Election Commission—a nomination pronounced dead on arrival in the Senate, which proceeded to stay open to block Bush from making a threatened recess appointment.

In other administrations, the fact that two senior Justice Department officers were refusing to cooperate with a criminal probe would be shocking news. The fact that they had to be subpoenaed to answer questions about their official conduct at the Justice Department would grab headlines. For the Bush Justice Department, however, it’s just another day, hardly any different from those that preceded or will follow it. Indeed, the sense among senior Justice staff with whom I have spoken is that Schlozman and Spakovsky are, relatively speaking, small frye. The focus remains on the investigation of the U.S. attorneys’ scandal, which involves serious allegations of wrongdoing and the prospect of a criminal probe of the Department’s four most senior political appointees, starting with Attorney General Gonzales. Still the real focus of inquiries into the scandal is not on the Justice Department at all, but rather its former political puppetmaster, Karl Rove.

The Inspector General’s report on the U.S. attorney’s scandal is due to be released before Labor Day, the traditional start of the presidential campaign. Any later than that and it risks becoming too much a front-and-center aspect of the election campaign, which would hardly serve the interest that every sober observer now recognizes in a less political Justice Department.

Today we learn that the Inspector General’s report is taking a focus, as expected, on the White House’s role in improperly directing Justice Department decisions. And the initial focus will fall squarely on the Justice Department’s sprawling “truthiness†problem. As the U.S. attorneys’ scandal unfolded, Justice Department spokesmen, and senior figures, issued a series of aggressive statements dismissing concerns and directing attention away from the White House. The Inspector General’s team is learning that more often than not, the denials of White House involvement were in fact authored inside the White House by individuals who knew the statements were not true.

A key initial chapter goes to a February 23, 2007 letter that the Justice Department sent in response to Congressional inquiries. Congress was trying to learn what role Karl Rove had played in the decision to sack the U.S. attorneys, and it was focusing in on the appointment of Rove’s deputy, Tim Griffin, to be the new U.S. attorney in Little Rock. Griffin had no credentials as a federal prosecutor. On the other hand, Griffin had great skills in partisan trench warfare, and was often identified as a key expert in the craft of “voter caging,†a legally dubious technique used by Rove to suppress minority voter turnout in battleground states.

The Justice Department letter stated that “The department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin.†It continued the Justice Department was “not aware of anyone lobbying, either inside or outside of the administration, for Mr. Griffin’s appointment.†These statements appear to be knowing falsehoods transmitted for purposes of obstructing the Congressional investigation. In fact the appointment of Griffin had come at Karl Rove’s behest, implemented over push back from the Department itself. Yet these false statements were issued in the name of the Justice Department. But who was responsible?

As Murray Waas reports today, federal investigators have now learned that the February 23 letter was the joint product of Kyle Sampson, Karl Rove’s former assistant, dubbed the “mini-Rove†by his co-workers, who moved to Justice with Alberto Gonzales, and a White House lawyer. At Justice, Sampson served as one of Rove’s principal cat’s paws. His co-author was Chris Oprison, then an associate general counsel at the White House, working under the nominal supervision of Harriet Miers, but in fact working closely with Rove. In other words, the Justice Department’s denial of White House involvement was actually authored by White House figures close to Karl Rove who had personal, direct knowledge that the statements they were making were false.

This is but one strand of a story which leads with increasing clarity directly to the White House, and straight to the office of Karl Rove.

The latest disclosures bring a focus on one issue that the Inspector General will have to address: the persistence of Justice Department “truthiness.†By the sterner view, it is obstruction of a Congressional investigation and lying to Congress: acts which warrant a criminal investigation, possible felony prosecution, and professional disciplinary measures for attorneys, possibly including disbarment. But the prevailing view inside of Justice today is different. It holds that there’s nothing wrong with telling fibs to Congress—it’s all part of the game. If the report takes the path that the latest disclosures suggest, then it will point clearly to the need for a special prosecutor, a person of unquestioned integrity and ability, to make decisions about the indictment and prosecution of Mr. Rove and the immediate past top leadership of the Bush Justice Department. Mukasey has firmly resisted such calls so far, but in doing so he has put his own reputation at risk.

Michael Mukasey tells us that he wants to restore integrity to the Justice Department. That would start with respect for the truth. But Mukasey has made Brian Roehrkasse—an outrageous and well-documented vendor of falsehoods–his principal public relations officer. And yesterday he took a further step down the same road by appointing as his new chief of staff Brian Benczkowski, another political flak best know for defending torture and for a falsehood-laden letter he delivered to Congress defending misbehaving prosecutors. When the report on the U.S. attorneys’ scandal surfaces, the Justice Department response will most likely be managed by Roehrkasse and Benczkowski, two individuals who should be right in the spotlight of the controversy. At Mukasey’s Justice Department the drawbridge is going up, and the battlements are being manned by the agents of “truthiness.†Truth is about to attempt to recapture the Justice Department. And the institution’s reputation and future hang in the balance.

Verdict on Hamdan

Yesterday a military panel rendered a split decision in the prosecution before a Guantánamo military commission of Salim Hamdan, the chauffeur of Al Qaeda leader Osama bin Laden. In the first war crimes prosecution brought by the United States since the close of World War II, Hamdan was accused of participation in an Al Qaeda conspiracy that included attacks on the United States on September 11, on the U.S.S. Cole and the East African embassy bombings as well as of material support. The six military panelists acquitted Hamdan on the major charges of conspiracy, which were the only charges originally brought against him. They convicted him of material support on the grounds that he was in fact bin Laden’s chauffeur. The case now goes into its sentencing phase.

The military actors handling this case performed their roles appropriately under very difficult circumstances. Naval Captain Keith Allred, who presided, was quick to admit errors in judgment on matters on which his rulings were exact and correct but favored the defense. But the prosecutors and defense counsel, as well as the deliberating panel, performed the roles given to them. (In the media, this panel is widely being called a “jury,†which is a disservice to the English language. The panelists were hand picked by a crony of Vice President Dick Cheney whose blantant political manipulation of the process has already been documented. The panel is not in any sense a “jury.â€) In fact, the evidence, to the extent outsiders were able to track it, certainly was insufficient to justify the conspiracy charge, so the panelists showed that they were not cowed by the bombast and overplay which has become a prosecutorial mainstay in the Bush era. On the other hand, they convicted Hamdan on material support, and the record shows adequate evidence that Hamdan enlisted in Al Qaeda, pledged his allegiance to the organization and by his conduct supported their program. He admitted to being Osama bin Laden’s chauffeur after all. The verdict therefore seems supported by the evidence.

So was the Hamdan case a “success,†a feather in the cap of the Bush Administration’s guardians of justice? Hardly. As Matt Waxman, who as a senior official in the Rumsfeld Pentagon helped craft this system, has acknowledged, there was another defendant in that courtroom standing alongside Salim Hamdan: it was the American justice system. Judgment will be taken by history, and the case was played to a global audience. The first returns are in, and they are not positive. Worse, the perceptions are likely to get harsher and more negative over time. Even before the verdict came in, observers around the world were focused on the Bush Administration’s own contempt for the military commissions process. It had announced that it was indifferent to the judgment of the commission—if Hamdan were acquitted, he could continue to be held for life, a Pentagon briefer acknowledged. The Hamdan prosecution reveals more about the Bush Administration and its fear and loathing of justice than it reveals about Hamdan.

After six and a half years in which the name “Guantánamo†has become badge of shame and humiliation, there has at last been a prosecution–of an individual whose role was at best completely peripheral. The former chief Guantánamo prosecutor has now openly acknowledged that an independent, objective prosecutor never would have charged Salim Hamdan, because he was an absolute nobody. This is not to say that Hamdan is an innocent, of course.

The Bush Administration could have handled this matter in the tradition that the nation’s greatest modern attorney general, Robert Jackson, set out at Nuremberg. Jackson personally took charge of the first prosecutions, delivering mesmerizing opening and closing statements and a dramatic cascade of evidence that targeted some of the most heinous criminals from the Second World War. Jackson had two important objectives before he reached the question of the guilt or innocence of the individual defendants: he needed to validate the fairness of the process, and he needed to demonstrate, clearly and convincingly in the eyes of the world, that heinous crimes had been committed which justified this extraordinary tribunal process. Jackson accomplished both goals. He also secured the conviction of key kingpins in the Nazi terror state. He did it all within the first year of the Allied occupation of Germany, through a process that helped transform the German people from enemies to friends. In the end, Jackson and his team demonstrated that the American tradition of justice was a potent tool to be wielded against the nation’s enemies.

By contrast, America has now endured seven years of an administration which fears the rule of law, which operates in the shadows as it contravenes criminal statutes and long-cherished traditions and retaliates mercilessly against civil servants who stand for law and principle. George Bush and his political advisors openly castigate law and justice as weaknesses or vulnerabilities–as public suspicions grow that they have darker reasons to be concerned about the law. Instead of following the historic route and using military commissions that follow the nation’s long-standing traditions, they have crafted embarrassing kangaroo courts. When the Supreme Court brought its gavel down on one of their shameful contraptions, they simply concocted another, equally shameful one, openly proclaiming an inferior brand of justice for those who were “not citizens,†exalting in the right to use torture-extracted evidence and to transact the proceedings in secret.

So why prosecute Salim Hamdan? Because Osama bin Laden remains at large, as does Ayman al-Zawahiri and a host of other Al Qaeda leaders. Hamdan would not have figured on a list of the 500 most important Al Qaeda figures. The fact that Hamdan was not only prosecuted, but actually turned into a lead case is shameful, a demonstration of ineptitude at least, if not of contempt for law and legal process altogether. That such a loaded, rigged system actually produced an acquittal on the only serious charges is evidence of the breathtaking incompetence of the Bush strategists.

The Hamdan case demonstrates the flawed planning of the Bush Administration in other respects as well. The military commissions exist to try war crimes. Conspiracy is a war crime. Indeed, Robert Jackson himself labored to make that point at Nuremberg and he succeeded. The conspiracy charges were therefore plainly within the competence of the commissions. And he was acquitted on these charges.

But in the second round, “material support†charges were added—a crime invented after the fact, in violation of basic legal and constitutional norms. Notwithstanding vacuous Congressional pronouncements, “material support†is not a war crime. For obvious reasons—if it were a war crime, then the laws of war would be criminalizing entire populations that are enlisted in the support of the criminal regimes which not infrequently in human history have come to power. In fact, the whole thrust of the laws of war is just the opposite: it seeks to protect the large bulk of the population which is not directly engaged in hostilities. David Glazier has written an impressive summary of the issue, and Kevin John Heller has weighed in with a persuasive presentation but Judge Allred’s own opinion makes the case against his ruling sustaining the charge–he is unable to cite any precedent or authority in support of the Administration’s say-so. My suspicion is that Allred doesn’t believe for an instant that the “material support†charges are sustainable, but he is leaving that call for judges whose future livelihood and happiness does not rest on decisions made by a vindictive executive. Afterall, one of the military commission judges has already paid the price for ruling against the Bush Administration. Colonel Peter Brownback found himself prematurely retired and removed mid-process from a high-profile case.

I agree that prosecutors offered reasonable evidence showing that Hamdan was involved in material support to Al Qaeda. But the fact remains that this is not a war crime. In fact, the law is very clear on this point. That means not that Hamdan is innocent, but that the charge should have been brought in another court, not before a military commission. (The prosecution would have faced serious problems in a U.S. court given the language of the often-amended material support statute, the very late scheduling of Al Qaeda as a terrorist organization, and questions about the application of the old statute to a person operating outside the United States. The “war crimes†gambit appears to be an end-run around all of this.)

The Hamdan proceedings now go into the next stages. First sentencing, and then appeal. If the case is reviewed seriously, then the appeals court will come to the obvious conclusion that “material support†is not a war crime, and will reverse the decision. If the American appeals courts fail to do this, the condemnation of the international community will follow. Either way, the Hamdan process has cheapened the image of American justice in the eyes of the world. Justice has been made to appear to be an expression of the will of the executive, and confidence in the independence and integrity of American courts and prosecutors has been seriously eroded. Prosecution of Al Qaeda operatives should have been an important victory for America in its battle with terrorists. Instead it has been converted into a needless and humiliating defeat.

Post-Sentencing Update
The Military Commission has now also entered its sentence for Salim Hamdan. He is to serve five and a half years, with credit for time already served. This means he would be eligible for freedom just as George W. Bush leaves office.

There is no room for coincidence about this verdict, its import is clear. The Commission is providing legal cover for the Bush Administration–it assumes that the Bush Administration will not release Hamdan or any of the others charged, regardless of the verdict and sentence it delivers. The Commission also assumes that whatever administration follows Bush, whether Barack Obama or John McCain, will respond fairly to the demands of justice. This is an unmistakable vote of no confidence in the Bush Administration, a rebuke of its transparent design to turn the Gitmo proceedings into a partisan political theater.

We may be frustrated, and even angry with the entire process that George W. Bush has instituted at Guantánamo. It ill serves the country and is a continuing assault on America’s reputation for justice. But there is no reason to be angry at the military officers who prosecuted, defended, presided over and deliberated in these proceedings. They were given a loathsome assignment, but they have discharged it ably and have done much to uphold the military’s reputation for justice and fairness.

Mörike’s To a Lamp

Moritz von Schwind, Die Morgenstunde (1858)

Noch unverrückt, o schöne Lampe, schmückest du,
An leichten Ketten zierlich aufgehangen hier,
Die Decke des nun fast vergeßnen Lustgemachs.
Auf deiner weißen Marmorschale, deren Rand
Der Efeukranz von goldengrünem Erz umflicht,
Schlingt fröhlich eine Kinderschar den Ringelreihn.
Wie reizend alles! lachend, und ein sanfter Geist
Des Ernstes doch ergossen um die ganze Form –
Ein Kunstgebild der echten Art. Wer achtet sein?
Was aber schön ist, selig scheint es in ihm selbst.

Yet unmoved, you beautiful lamp, gracefully suspended
Here by light chains, you adorn
The ceiling of this almost forgotten folly
About your cup of white marble, whose rim
Is enshrouded with a wreath of ivy golden-green,
A group of children join hands in a circle dance.
How charming is this! Smiling, a gentle spirit
Of gravity descends indeed about the image –
An artwork of the authentic form. Who notices it?
True beauty radiates from a light within.

–Eduard Mörike, Auf eine Lampe (1846) in Sämtliche Werke vol. 1, p. 735 (H. Unger ed. 1974)(S.H. transl.)

I present here an original translation of Eduard Mörike’s short poem “Upon a Lamp,†which occupies much the same position in the German poetic tradition that John Keats’s “Ode on a Grecian Urn†does in the English. Both are prime examples of what the Greeks called ekphrasis (ἔκ-φÏασις), namely the practice of one art form imitating another through definition, description and imagery. Among the writers of classical antiquity, ekphrasis had many understandings, but one included the notion that artistic concepts by force of their very universality could be restated, adapted and appreciated anew by subsequent generations, even by other peoples and civilizations; indeed, that the process may be one of gradual perfection of the artistic narrative. But in both cases, the poem can be appreciated on a simple plane, namely as the description of a specific object, or in a more multidimensional framework which includes a measure of irony (the spectator who does not appreciate, or at least not deeply, the artistic virtues of the object) and a assessment of the object within a philosophical system of esthetic judgment. So for Keats, that Grecian urn is contemplated in a manner that later finds its expression in the writings of John Ruskin. But Mörike’s take reflects the esthetic values and perspectives of the German Romanticists and Classicists. It’s common among the scholarship to place Mörike as a late Romanticist, or perhaps as the progenitor of the Neoromanticists–but in fact Mörike draws heavily from the classical school and in many respects his writing reminds one of transitional Classical-Romanticist writers like Friedrich Hölderlin (who crossed paths with Mörike at least once, when Mörike was a student in Tübingen). The imagery taken is decidedly classical and drawn from antiquity. But it is seen through an ironic perspective—the disconcerting clash between the ideal and the reality of the modern day—like many writers of Mörike’s own generation, and that which preceded him. This poem reminds of Hölderlin, Schiller and Winckelmann at least as much as of Schlegel, Wackenroder or Hoffmann. The poem features language of irony and the unexpected at several levels. In the first line, for instance, the word “unverrückt†plays to a secondary meaning—unmoved—of a word more commonly taken to refer to the state of a person’s mental health. From the juxtaposition of these two meanings follows an ironic comment, namely that the viewer anchored in the values of classical antiquity is an odd bird in current society. The lamp which reflects the classical ideal likewise is “suspended by light chains.†In the poem, Mörike gives the chains the sense of being ornamental (“zierlichâ€), but the word “chains†is of course usually associated with captivity, imprisonment, separation from society. Again the subtle choices of language send a clear message.

This poem achieved its greatest celebrity in the early fifties, when a debate erupted between the great Swiss philologist Emil Staiger and the philosopher Martin Heidegger over its meaning. Both focused on the celebrated last line, probably the best known line from any poem by Mörike. Their difference turned on the word “scheint†which is susceptible to two different interpretations in German. For Staiger the word “scheint†was to be understood in the sense of external appearance (videtur), and hence the poem is a comment on the classical concept vanitas. But for Heidegger, the word had the meaning of the English term which derives from it, namely “shine,†or the Latin that Heidegger mentions, lucet. In this case, of course, the poem takes quite a different sense, namely a reference to an inner beauty following a classical ideal—an ideal that also matches the esthetic perception of writers such as Schiller. In my interpretation, I have adopted Heidegger’s perspective on the poem and its meaning, though I have not been too literal. In fact, I think either view of the poem works. But the Heidegger view is also supported by one of the stranger turns in the last line, where Mörike writes “selig scheint es in ihm selbst.†In normal modern High German, one would have expected the word “sich†where Mörike offers “ihm.†Staiger and Heidegger, both—like Mörike—speakers of the Swabian dialect, say that the use of “ihm†for the reflexive is a Swabianism. But this is strange, because Mörike’s classical-formal poetry, of which this is a prime example, does not use dialect. Another possibility is that this surprise shift is designed to change the perspective entirely, from the object to the viewer (that is, not an artistic object, but a human being). This transformation certainly also follows from the total development of the poem and its remarkable and ironic weave of perspectives.

The artwork taken for this poem is also a Romantic study in perspectives in a framework of bourgeois comfort, done by Moritz von Schwind—a very close friend of Mörike’s, especially in his later life.

Listen to Dietrich Fischer-Dieskau sing Eduard Mörike’s “Der Genesene an die Hoffnung†(“He Who Recovers Through Hopeâ€)(1838) in a setting by Hugo Wolf (Mörike-Lieder, 1888).

Burckhardt on the Duty of Citizens

With a portfolio holding his lecture notes in hand, Jacob Burckhardt walks past the Basel Münster on his way to class (1889)

Es gibt aber neben den blinden Lobpreisen der Heimat eine ganz andere und schwere Pflicht, nämlich sich auszubilden zum erkennenden Menschen, dem die Wahrheit und die Verwandtschaft mit allem Geistigen über alles geht und der aus dieser Erkenntnis auch seine Bürgerpflicht würde ermitteln können, wenn sie ihm nicht schon mit seinem Temperament eingeboren ist. Vollends im Reiche des Gedankens gehen alle Schlagbäume billig in die Höhe.

We will blindly sing the praise of our home country, but another and more burdensome duty weighs upon each of us, namely to raise ourselves up and educate ourselves as comprehending human beings for whom truth and the bonds of the world of the spirit are transcendent, and further to ascertain from that knowledge our true duty as citizens, if we were not born with an instinctive sense of that duty already. In the realm of thought it is only fitting that all frontier posts be swept away.

–Jacob Burckhardt,