War on Terrorism I

BurtLaw on the War on Terrorism I
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The ability to move people. I doubt that anyone has ever performed a song as movingly on Dave Letterman's Late Show as Tori Amos did last night (Tuesday). She sang the song Time (by Tom Waits) from her new CD, Strange Little Girls. No backup. Just accompanied herself on the piano. Most moving. Dave was crying when he held her hand afterward. I'm guessing everyone in the audience was. I was. It's interesting who comes forward in a time like this. It may surprise you to hear this, but Churchill's friends were surprised that he was the one who came forward and moved England as he did during its darkest days. (It was said of him, by General Ismay, "When things are going well, he is good; when things are going badly, he is superb.") And I think even the oldest admirers of Mayor Giuliani are surprised at what a terrific leader he has been in the current crisis. John Leonard, the critic, said it best. He said Giuliani has had "perfect pitch." "He's like a tuning fork for us. You need somebody up there reflecting back your pain. And there's been absolutely no political rhetoric." Dave Letterman had "perfect pitch" Monday night. Tori Amos had it last night. No false notes. No attempt to be moving. Just honest, simple "perfect pitch." (09.19.2001)

Bush's remarks at Islamic Center. Here's a link to the text of President Bush's remarks today, 09.17.2001, reminding everyone who needs reminding that the government will not tolerate harassment and intimidation of people because of their religious beliefs. "Those who feel like they can intimidate our fellow citizens to take out their anger don't represent the best of America, they represent the worst of humankind, and they should be ashamed of that kind of behavior...." Quite a contrast with the way Presidents Wilson and Roosevelt behaved in WWI and WWII. Wilson and our own governor here in Minnesota, J.A.A. Burnquist, were themselves complicit in the mistreatment of law-abiding German-Americans following American entrance into WWI. [more] And FDR was himself complicit with folks like Earl Warren, later Chief Justice Warren, in the the internment of law-abiding Japanese-Americans following the Japanese attack on Pearl Harbor. [more] (09.17.2001)

Phantom Towers - filling the void with towers of light. Next Sunday's New York Times Sunday Magazine is already online. The magazine's cover will be a reproduction of a digitally-created photo collage of the New York skyline created by two artists, Paul Myoda and Julian LaVerdiere. The collage is centered on "Phantom Towers," a proposed temporary monument consisting of two towers of light aimed skyward from the bases of the former twin towers of the WTC. Click here (free reg. req.). (09.17.2001)

Kurt Vonnegut, Jr. "The most stirring symbol of man's humanity toward man that I can think of is a fire truck." Novelist Kurt Vonnegut, Jr., quoted at New York Post's Page Six. Vonnegut, a second-cousin-once-removed of my ex-wife, was a prisoner of war, in an underground meat storage cellar in a slaughterhouse, during the Allies' firebombing of Dresden on the night of 02.09.1945. That night of firebombing killed 135,000 people, mostly civilians, more than were killed in the atomic bombings of Hiroshima and Nagasaki combined. Following the bombing, he worked with other surviving prisoners pulling corpses from the rubble. I have seen a photocopy of Vonnegut's first letter following his liberation. His later style is evident in the letter, as is his desire to be a creative literary witness to the events he experienced. Slaughterhouse Five, which was made into a movie, is the novel one first thinks of in connection with Vonnegut's experiences at Dresden. But, as "Page Six" points out, the experience is reflected in other works: In God Bless You, Mr. Rosewater "the protagonist is so tortured over unwittingly killing a German firefighter during the war that upon his return home, he is compelled to fund volunteer fire departments all over the country." Vonnegut, who served as a volunteer firefighter in a NY hamlet for a time, came close to dying as a result of a fire in his NY brownstone in early 2000. I listened to the BBC last night (09.16-17.2001) and its interviews with various European leaders, whose counsel our leaders should at least listen to if not follow in all respects. They are concerned that our government strive mightily to minimize innocent civilian casualties in any military actions we take against terrorists and those who intentionally aid them. I, of course, agree. We would not honor those killed by the terrorists if in responding we in effect become "like unto" the terrorists. Nor would we honor them if in responding we increase, rather than decrease, the risk that more acts of domestic terror will be perpetrated upon us. For more quotes for lawyers, judges & everyone else, click here. For a page of quotes by Ralph Waldo Emerson relevant to law, click here.

The law of unintended consequences. The careful writer of judicial opinions knows that unintended consequences, not always desirable, sometimes follow not only from the bare decision but from the way the decision is written. It is doubtful, e.g., that the judges who decided Clinton v. Jones, 520 U.S. 681 (1997), the case involving Presidential immunity from civil suit, realized in 1997 what the disastrous consequences of their decision would be. The "law" of unintended consequences plays out in every area of life. In an interesting article in the 02.15.1999 issue of The Nation, The Cost of an Afghan "Victory" by Dilip Hiro, the author suggested that our current crisis is an example of this "law." Specifically, Hiro argued that our government failed to imaginatively consider the possible consequences of our policy of allying ourselves with Saudi Arabia and Pakistan in "training, arming and financing the Afghan mujahedeen to expel the Soviets from Afghanistan." Hilo asked, "Did the founders of US policy in Afghanistan during the Carter Administration (1977-1981) realized that in spawning Islamic militancy with the primary aim of defeating the Soviet Union they were risking sowing the seeds of a phenomenon that was likely to acquire a life of its own, spread throughout the Muslim world and threaten US interests? Perhaps not, but it was not as if they had no choice." In a letter posted the other day on the internet, an Afghani-American, Tamim Ansary, makes a persuasive argument that the very aim of Osama bin Laden's terroristic program is to draw "the West" into a holy war with Islam. I don't claim to know what our government should do in the days ahead other than do its damndest to protect us from further acts of domestic terrorism. One hopes, however, that the grand strategists will try to imagine all the possible consequences, intended and unintended, of any military course of action considered. Stated differently, one hopes that Osama bin Laden will not outwit us once again. (09.17.2001; links via Meta-Filter)

Dick Cheney. George W. Bush has many weaknesses. He spent the better part of the first eight months of his administration engaging in a photo-op Presidency. But he has some notable virtues. I believe his greatest attribute as a public leader, paradoxically, is that he realizes his weaknesses. He realized them so well a year ago that he picked the best person possible to be his Vice President, Dick Cheney, whose performance on Meet the Press today was reassuring. And he has surrounded himself with a group of experienced advisors. If he is smart, he will also call not just on #41, his dad, but on #'s 38, 39 and 42 -- as well as, yes, on Al Gore and some of the other people from prior administrations -- for their advice and help. (09.16.2001) Update: Jonathan Alter makes the same points, and expands upon them, in his column in Newsweek on 09.20.2001.

There's profiling and there's profiling. As I've said before, Justice Holmes advocated "thinking things, not words." If one "thinks words," one might conclude that opponents of so-called "racial profiling" oppose all use of "profiling." It is to avoid this confusion that some of us have been careful and precise in how we have stated our opposition to "racial profiling." We have usually referred to the practice we've addressed as "so-called racial profiling." We've then said that what we objected to was the misuse of routine traffic stops of members of certain targeted racial groups as an unjustified investigatory tool in the so-called "war on drugs," typically by obtaining the "consent" of the targeted motorists to a non-probable-cause search of their vehicles and persons for contraband. This, of course, is a perversion of the concept of consent to search and a perversion of the values the Fourth Amendment was designed and intended to serve. [more] Thinking things and not words, we have never believed or said that the underlying concept of "profiling" is itself necessarily inconsistent with underlying Fourth Amendment values. As with so many things in life, "it all depends on the details." In the days ahead, we're going to be hearing lots of loose talk and cliched thinking about the need for "taking the restraints off of law enforcement." In fact, I know of no decisional holding or dictum of any court of last resort in America that has prevented airport and airline security officials and officers from developing reasonable profiles to assist them in preventing domestic terrorism. Such profiles typically include all factors that experience and reason have taught them are relevant to identifying possible terrorists. It is up to airport security officials and airlines to hire intelligent people as security officers, to properly train these officers, and to properly supervise them to ensure that they act in good faith and properly use the profiles as one of multiple tools available to them in the prevention of terroristic acts. (09.16.2001) Update: Roger Clegg on profiling terrorists, 09.18.2001 (NRO)

It can't happen here? In 1935 Sinclair Lewis, Minnesota's Nobel-prize-winning novelist, published It Can't Happen Here, a novel that imagined the coming-to-dictatorial-power in America of a demagogic politician who promised quick solutions to the Depression, as Hitler had done in Germany in 1933. Fact is, it already had happened. Right here in good ol' Minnesota. In April 1917 our democratically-elected representatives, responding to public hysteria over possible acts of domestic terrorism following our country's entrance into WWI, themselves acted hysterically. They created the Minnesota Commission on Public Safety and authorized it to "do all acts and things necessary" to protect the public safety. The Commission became a dictatorial police organization used by old line Democrats and Republicans and big business interests to harass loyal German-Americans and to suppress political activity by organized labor and the Non-Partisan League (the fore-runner to the Farmer-Labor Party), of which U.S. Rep. Charles Lindbergh, Sr., father of the then-barnstorming pilot, was a leader.

When Lindbergh, who was fearless (do you wonder where his son got his courage?), challenged the incumbent governor, J.A.A. Burnquist in 1918, Burnquist cynically wrapped himself in the flag, saying it was time to be "loyal," not a time to be "political." In fact, he was quite political and used the Commission, which was aided by members of the judiciary, to schedule his political rallies and to suppress the opposition of Lindbergh. Indeed, at one point Lindbergh was even arrested and indicted. Among the books detailing this, see, Carl H. Chrislock, Watchdog of Loyalty: The Minnesota Commission of Public Safety During World War I (1991), and Bruce A. Larson, Lindbergh of Minnesota: A Political Biography (1971, 1973). And see D.J. Tice, "Unsafe for Democracy," St. Paul Pioneer-Press (Sunday, January 4, 1998) (click here). According to Tice, when WWII broke out, Governor Harold Stassen, one of our few great governors, promised a friend whose father had suffered from the demagoguery of Burnquist & Co. that "nothing like that will happen as long as I'm governor." Harry Truman once said, "The only thing new in the world is the history you don't know." Merle Miller, Plain Speaking (1974). We can be thankful that we have a governor, Jesse Ventura, who apparently has read his history. Just the other day, following the terrorist attacks on New York and Washington, D.C., he said, "Use your head. People who live here in Minnesota had nothing to do with this. They are Americans all. I urge, in fact I demand, that no retaliation happen to them." (09.15.2001)

A poem. "Give balm to giants,/ And they’ll wilt, like men./ Give Himalaya, --/ They’ll carry him!" from "I Can Wade Grief," a poem for now by Emily Dickinson. (Note: in the original, Dickinson used the word "Himmaleh." I have taken the liberty of changing that to "Himalaya" for clarity's sake. Dickinson's spelling was common in the 1800's. See, e.g., Emerson's reference to "Himmaleh mountain-chains" in his 1844 essay Nature.)

I can wade grief

I can wade grief,

Whole pools of it, --

I’m used to that.

But the least push of joy

Breaks up my feet,

And I tip -- drunken.

Let no pebble smile,

’T was the new liquor, --

That was all!

Power is only pain,

Stranded, through discipline,

Till weights will hang.

Give balm to giants,

And they’ll wilt, like men.

Give Himalaya, --

They’ll carry him!

--Emily Dickinson

BurtLaw Featured Sites on Children and Violence. Kids' Corner features links to sites and stories that will help you "help your children deal with anger and fear in the face of violence." American Psychological Association features a helpful list of typical reactions of children in various age groups, followed by useful guidelines for teachers (and parents) in responding. Civics Online "is a collaborative, online project providing a rich array of primary sources, professional development tools, and interactive activities to help in the teaching of civics." See, especially, 10 kinds of things you can do with your kids to help them learn to be good citizens.

The curse of bigness. My dad was a small-town banker for over 50 years, until in 1985 the bank of which he was part owner "failed" during a midwestern agricultural depression. Dad told me with a sigh a number of times that if the bank had been big enough, the government would not have allowed it to fail. As we've seen time and again, if you're big enough -- if you're "too big to fail" -- the federal government will come to the rescue, no matter how craven and corrupt were the decisions that caused you to fail. Long before he became a Supreme Court Justice, Louis Brandeis warned us about the evils of too much concentration of economic power and the "curse of bigness." Brandeis was Jeffersonian in his belief in federalism, which, of course, is not about political concentration in the federal government but about the creative tension that Madison and the other Founders hoped would result from the concept of shared sovereignty. The states were to be the "laboratories of democracy," the nurturers of decentralized economies, the primary guarantors of strong communities of responsible, freethinking (even agrarian) Jeffersonian democrats. Some people these days think that's all rather quaint. But it isn't. Because of the concentration of our Pacific fleet in a single harbor in Hawaii, we were overly vulnerable to a devastating attack by a militarily and morally inferior nation in December of 1941. Because of the over-concentration of much of our economic activity not just in one city but in one gigantic two-towered trade center in that city, and because of the over-concentration of political and military power in another city, we are too vulnerable to just what happened on Tuesday, 09.11.2001. In the days ahead we need to be creative in our thinking as we consider ways to respond to those events. The New York Post "editorializes" that the options are to "rebuild or surrender," and by that it means "rebuild the lower Manhattan skyline - exactly the way it was before." I think we should at least explore some other metaphors. The President's temporary "flight" to the security of rural Nebraska might serve as one useful metaphor: we need not concentrate all power, even all federal power, in one city. We might also contemplate the possible relevances of the various fairy tale metaphors of "the giant"who is so big and powerful that paradoxically he is weak and entirely vulnerable. (09.13.2001) Updates: Roger Ebert: Let's not rebuild.... (ChiSunTimes); Oliver Morton: Divided We Stand (Wired, 09.12.2001)

What we can learn from good trial lawyers. One of the techniques of good trial lawyers is to assign a member of the firm to play the role of the opposition, to think like the opposition, to come up with as many possible opposition strategies and arguments as possible. Our leaders either haven't been doing enough of this or haven't been listening to those who have been doing it, like a) Lowell Ponte, whose op/ed piece, Terrors to Come in Front Page, is worth reading, and b) Gary Hart and Warren Rudman and the other members of the U.S. Commission on National Security - 21st Century (Salon). (09.13.2001) Update: From Joseph Nye: op. piece on how to protect homeland (NYT, 09.25.2001): "Planners should conduct regular exercises with teams simulating terrorists and defenders, trying to outsmart each other. Had we done this for our airport security system, we might have realized that it was designed to detect guns and bombs but not to stop suicide pilots armed with knives and box cutters."

A Thoreauvian thought. Henry David Thoreau said in chapter one of Walden (1854) that "it is a characteristic of wisdom not to do desperate things." Some of the proposals one is hearing in the aftermath of yesterday's terroristic attacks border on the hysterical. I heard one fellow on the radio suggest we ought to use nuclear weapons to punish those who are responsible. And a commentator named Stanley Kurtz, who apparently gets paid good money for being a "thinker" at one of those "institutes" with a prestigious name, opines in The National Review that we ought to, as the headline to the column trumpets, "revive the draft." Justice Holmes once referred to the quietness at the U.S. Supreme Court as the quietness at the center of a storm. Rudyard Kipling wrote in one of his poems ("If") that being "a man" involved, among other things, being able to "keep your head while all about you are losing theirs...." There was, as I wrote earlier today, an unusual quietness yesterday afternoon among the good people who were walking around some of Minneapolis' lakes on one of the loveliest days of the year. It was the quiet that Holmes spoke of. As one of those quiet people, I'm hoping and praying and expecting that our elected decisionmakers will act wisely, not desperately, as they respond in the days ahead to the evil acts of yesterday. (09.12.2001)

Mass behavior. One of the most disgusting images is that of mobs of Palestinians cheering at the news of the terrorists' attacks yesterday. Another is of young Arab men being photographed proudly holding their machine guns, pictures that later are enshrined if these men give their lives in an act of terrorism. I heard some commentators on TV last night blabbing about America being "changed forever" because of what a few evil people -- programmed from childhood to be evil -- accomplished. We will be changed, for the worse, if we become like them. We will become like them if we act like them, if we talk like them, if we teach our children to be like them. (09.12.2001)

The Benson connection. My amateur forays into the history of my hometown, Benson, MN, have included reading, in a detailed way, most of the archived newspapers from the date the first paper was published until 1961, when I left town for college. At some point it dawned upon me that whenever something significant happened on the national stage, there was usually a "Benson connection." When the Japanese kamikaze pilots flew their planes into the Battleship Arizona, sinking it in Pearl Harbor, there was a Benson connection. When the famous heavyweight boxing match occurred in Shelby, MT, there was a Benson connection. I've also observed, since graduating from Harvard Law School, that there's usually a "Harvard Law connection." An example: during the Carter-Mondale administration, I had classmates of mine from law school who served in the White House and a high school classmate of mine (a second cousin once-removed) who also served there. I suppose both "connections" are variants of the theory that any one of us is separated from anyone else in the world by no more than "six degrees of separation." Or to put it differently: we're all related, all connected. Here are links to lists of the tenant companies of World Trade Center building one and two. I don't doubt that in the days ahead each of us will find that there is a "connection" similar to the connections I've described. Even if that is not so, in some real way the attacks were attacks upon each of us, upon all of us. And that is perhaps why when I walked around Lake Harriet and Lake Calhoun in Minneapolis late in the afternoon yesterday, there was an unusual quietness. There were as many walkers as usual, but they weren't talking as loudly as they usually do. Most were talking, if at all, in almost hushed tones. And when I reached Uptown, Minneapolis' version of Harvard Square, I found the mood the same. I remember that in 1953 when I was 10 years old I scoured the long lists in the Minneapolis Star of prisoners of war released from captivity in Korea. In the days ahead we'll be reading long lists of casualties. But already each of us knows deep down that the people whose names will be on those lists are people to whom we are connected, our brothers and sisters. (09.12.2001)

The dark side. When I was growing up, my parents sometimes recounted what they were doing that first Sunday in December of 1941 when the Japanese attacked Pearl Harbor. Members of my generation sometimes recount to our kids what we were doing on the 22nd of November in 1963 when we learned that President Kennedy had been shot. And we also recount what we were doing in 1968 when we learned Martin Luther King had been shot and, a few months later, when we learned Bobby Kennedy had been shot. On Sunday George Will quoted P.D. James, the English detective novelist, as saying that "her formative years were dominated by reverberations of the catastrophe of 1914-18, which cast 'a shadow of uncomprehended vicarious sadness.' Her generation 'was born under a pall of inarticulate grieving.'" In some comparable way, some members of my generation -- and I include myself -- experienced an extended period of inarticulate, even unacknowledged, grief throughout the 1960's. That grief I believe is directly traceable to our not only experiencing the sudden deaths of leaders we admired but our living constantly under the cloud of a war we believed was unjustified. In the interview with Wills, Ms. James expresses "mild disdain" with what she terms our "therapeutic culture" here in America. "Remembering what fell upon London six decades ago, she dryly wonders, 'Would there be enough counselors to go around after a bad bombing?'" Her "mild disdain" is understandable. But as parents -- and shouldn't all adults think parentally -- we must ignore that disdain today as we contemplate the possible effects of the events in NYC upon the children of America and of the world. The first instinct of some of us is to shield our children. But we can't protect them by trying to conceal the reality of what has happened. Children are more aware of the dark side of human nature -- the side history tells us we ignore at our peril -- than we might like. They are going to learn what happened and they are going to be thinking about it. I don't claim to know what we should tell them. But I do know that they need us to listen to them carefully. Steadfast attention and care together constitute the real therapy that kids need. As James Hillman, the wise depth psychologist, puts it, "Attention means attending to, tending, a certain tender care of, as well as waiting, pausing, listening." And the best place for kids to get that kind of therapy is at home, that one place all of us look to for caring shelter from the storms of life we know are raging outside. (09.11.2001)

War on Terrorism continued....

Library of Congress September 11 Web Archives. BurtLaw's Law And Everything Else, i.e., this website, is part of the Library of Congress September 11 Web Archive, which preserves the web expressions of selected individuals, groups, the press and institutions in the United States and from around the world in the aftermath of the attacks in the United States on September 11, 2001. Date Captured: September 20, 2001 - December 17, 2001.

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