The Pernicious Myth of "Human Nature"

The belief that “human nature” includes instinctual drives towards aggression and violence has caused much mischief. The belief has led to a sort of “boys will be boys” attitude towards violence. Such beliefs can be a self-fulfilling prophecy. If one believes that human nature is inherently violent and aggressive, then one must also believe that violence and aggression are inescapable aspects of the human condition, and that any proposal that seeks to reduce or eliminate violence and aggression is doomed to failure. Therefore, it logically follows, it is pointless, even counterproductive, to seek to implement any such proposals. As a result, aggression and violence continue to be prevalent in our lives.

Two things have caused me to think about the great damage that has been caused by the belief that there is such a thing as “human nature”, and that this nature is inescapably violent. First, I have recently read Robert Kagan’s new book, The Return of History and The End of Dreams (it’s only a little over 100 pages long, so it’s really more like an essay than an actual book, but nevertheless, Kagan somehow got somebody to publish it as a stand-alone book). Second, I recently attended a fortieth anniversary special screening and panel discussion of Stanley Kubrick’s masterpiece, 2001 A Space Odyssey, a work of art that I admired greatly when I first saw it as a radical-wannabe teenager during the peak of the counterculture in 1968, but which now fills me with great misgivings when viewed through the eyes of a middle-aged liberal.

Kagan’s book is an extremely important book. It is, in my opinion, a thoroughly loathsome book and I disagree with just about every word of it, including “and” and “the” to borrow a line from Mary McCarthy, and I often found myself throwing down the book in exasperation while reading it (I took it out from the local public library so as to avoid contributing to Mr. Kagan’s royalties, and I frequently had to remind myself not to do damage to public property). Nevertheless, it is a very important book. It is an important work because it is an excellent articulation of the current state of the political philosophy generally known as “neo-conservatism”. Kagan is one of the leading foreign policy advisers to Senator McCain and the book is basically a position paper for the foreign policy that would be pursued during a McCain Presidency. McCain’s call for the creation of a “League of Democracies” to carry out military adventures under the leadership of the United States in the years ahead comes directly from Kagan.

The book also has a lot to do with some of the “inside baseball” in the neo-conservative movement. The Kagan family is sort of the neo-con version of the Partridge Family. Robert Kagan was one of the prime movers behind the Project for a New American Century (PNAC), which remains the focal point for neo-conservative ideas. Patriarch Donald Kagan, a classics scholar at Yale, was one of the early godfathers of neo-conservative philosophy. Brother Frederick Kagan has also been affiliated with PNAC, and was a strident proponent of both the initiation of the Iraq War and of its continuation and escalation and prolongation (the so-called “surge”), with the ultimate goal of installing a permanent U.S. military force in Iraq – the “100-year” occupation espoused by Senator McCain.

Robert Kagan’s new book, in addition to being the blueprint for the foreign policy of a McCain Presidency, is also a rejoinder to the writings of another (now erstwhile) leading light of the neo-conservative movement, Francis Fukuyama. The title of Kagan’s book is actually a dig at the title of Fukuyama’s major work, The End of History and The Last Man. Fukuyama is regarded as something of an apostate by other neo-conservatives, as he has expressed the opinion in his latest book, America at the Crossroads, that the Iraq War was a mistake and Fukuyama has abandoned what had previously been a central tenet of his neo-conservative philosophy, namely, that the United States can and should engage in military conquest for the purpose of spreading “democracy.” Fukuyama has also given a tentative endorsement of Obama’s campaign.

Fukuyama’s celebrated “end of history” thesis was as follows. Fukuyama opined that the end of the Cold War signaled the end of socialism and left free-market capitalism as the world’s sole economic system. However, Fukuyama is a non-Marxist Hegelian who believes that economics isn’t everything, so he was not content to accept the benefits of a world united by globalization and the attendant economic benefits it could bring to the peoples of the world. For Fukuyama, America’s “victory” in the Cold War was not just a triumph for an economic system, it was a triumph for an ideal, namely, the ideal of “democracy.” Fukuyama argued that the end of the Cold War ushered in the “end of history” because it meant that the entire world would now be united by a single common ideology, namely, American-style “democracy.” And, since the end of the Cold War left the United States as the world’s sole superpower, Fukuyama advocated the liberal use of American military force in order the accelerate the global spread of “democracy.”

As noted, Fukuyama now concedes the error of at least some of his ways, as the Iraq debacle has convinced him to abandon the core principles of neo-conservatism. Neo-cons such as Kagan (and McCain), however, are made of sterner stuff.

Kagan argues that the weakness in Fukuyama’s “end of history” thesis lay in its failure to give sufficient recognition to the “instincts for aggression and violence” that are embedded in human nature. Fukuyama’s work had devoted great attention to the classical Greek concept of thumos, the passionate, irrational component of human nature that produces the ferocious sorts of conflicts among tribes, clans, and nations, which we have come to know as “war.” Fukuyama did not contend that thumos could be eliminated; rather, he argued that human instincts for competition would be channeled into peaceful pursuits as a result of the universal embrace of Euro-American style “democracy.” Kagan argues that Fukyama’s thesis is nothing more than wishful thinking, and Kagan announces, almost gleefully, that large-scale, nation vs. nation warfare is here to stay.

Kagan points to what he claims to be the lessons of the post-Cold War period in order to support his argument. Kagan asserts that even though global capitalism as an economic system has indeed swept virtually the entire world, this has not led to a trend towards global democracy. The rule of the Communist Party in China appears unshakable. After an initial and largely unsatisfactory flirtation with democracy during the Yeltsin era, Russia appears to have reverted to authoritarianism under the Putin regime. According to Kagan, there is no necessary connection between capitalism and democracy. Kagan believes that “authoritarian capitalism” has shown itself to be a perfectly viable political and economic system in China and Russia, and he believes that it is proving to be a very attractive model for many developing countries in Central Asia and Africa. In Kagan’s world, we can expect “authoritarian capitalist” regimes to be around for quite some time unless they are confronted, and defeated, militarily.

Kagan, like Fukuyama, sees conflict as rooted in ideology, not economics. Here is where the concept of thumos once again raises its ugly head. Kagan believes that the instincts for violence and aggression inherent in human nature make it inevitable that there will be violent conflicts between the rival ideologies of democracy and authoritarianism. Kagan concludes that we have not arrived at Fukuyama’s “end of history” – hence Kagan's assertion of the “return of history” – and we can look forward to a twenty-first century that will be as bloody as the last century. Actually, Kagan suggests that the twenty-first century will be more like the nineteenth century in that there are no longer competing economic systems following the end of the Cold War, just national ideologies struggling to achieve dominance. Nevertheless, in Kagan’s world we should rest assured that human nature will guarantee that these conflicts will be carried out through bloodshed and violence. In order to ensure that America achieves “victory” in this violent world, it should continue to maintain its massive military establishment, and most importantly, the United States must have a military establishment capable of fighting large-scale wars against other powerful nations (i.e., China and Russia), and not just a military attuned to engage in counterinsurgency fighting in places like Iraq and Afghanistan.

Finally, Kagan articulates the proposal that has become the centerpiece of McCain’s foreign policy agenda, namely, that the United States should become the leader of a “League of Democracies” that will carry out the fight against our “authoritarian” rivals around the world. This program includes steps such as the virtual scrapping of the United Nations, the expulsion of Russia from the G-8, and the threat of an American military response to protect the “democracy” in Taiwan against Chinese aggression.

Notably, the threat of Islamic extremism plays a somewhat secondary role in Kagan’s world. At first blush, this might seem inconsistent with what is generally assumed to be the preoccupations of the neo-cons. However, it is perfectly consistent with the PNAC worldview, which sought to achieve an international system based on American hegemony brought about by military might. While Kagan is by no means a fan of radical Islam, he views American military action in the Middle East as merely one part of his scheme of a larger global ideological conflict between “democracy” and “authoritarianism.” Kagan’s goals for American military action in the Middle East are, (1) to promote “democracy” where possible, thereby recruiting new members of the “League of Democracies” that will be the military partners of the United States, and (2) even more importantly, to gain control over vital resources (oil, of course) so as to deny those resources to our authoritarian enemies.

As I said earlier, I disagree with just about every word of Kagan’s book, so I have a bit of a hard time articulating these disagreements in a coherent way. I’ll give it a try.

One can challenge the particulars of Kagan's assumptions about the post-Cold War world. The paradigm of dividing the world into warring ideological camps denominated as "democracies" and "autocracies" is way off base. While states such as Russia and China are certainly far from being open societies along the lines of the liberal democratic ideal, they are unquestionably far freer than they were under their communist regimes. Russia now does conduct elections, and those elections cannot be dismissed as being wholly without substance. While China has made little movement in the direction of electoral democracy, the structure of the Communist Party itself has become far more flexible and amenable to change, and in some cases, it is even responsive to public opinion. The recent earthquake in Sichuan province offers a good example of this. Provincial party officials who were not sufficiently responsive in dealing with the crisis were subjected to intense popular criticism. http://www.thomaspmbarnett.com/weblog/2008/06/the_sichuan_quake_system_pertu.html#comments For the most part, the Chinese party leadership responded not by cracking down on demonstrations of popular anger, but rather, by removing incompetent or corrupt local officials. The contrast with the Bush Administration’s handling of incompetent officials who bungled the Federal government’s response to Hurricane Katrina – Homeland Security Secretary Michael Chertoff kept his job and still holds it – is noteworthy, and to any objective American, humbling.

It is also instructive to look at the other side of the democracy vs. autocracy divide in assessing how accurate Kagan’s analysis really is. The paragon of democracy in Kagan’s world, the United States, has unquestionably been drifting in a much more authoritarian direction during the eight years of the Bush/Cheney administration. The United States government under Bush and Cheney openly advocates programs involving torture and detention, and President Bush engaged in widespread illegal electronic surveillance. Security procedures such as random searches and omnipresent metal detectors have become accepted features of American life. The authoritarian drift in American society is not confined to anti-terrorist measures adopted in the wake of 9/11. Calls for the closing of American borders in order to cut off immigration draw great support among the far right, and even among followers of pseudo populists such as Lou Dobbs. The United States employs capital punishment on a scale unknown anywhere in the “democratic” world – even authoritarian Russia has abolished capital punishment. The United States now has the world’s largest prison population, both in absolute and per capita terms; again, the “autocracies” of China and Russia lag far behind the United States in the rate at which they imprison their own people.

One can also question Kagan’s assertion that autocracies present a greater danger of military aggression than do democracies. Kagan would point to the recent events in Georgia to bolster his contention that the Russian autocracy is a major threat to world peace which the United States must be prepared to resist. The facts of what happened in Georgia are far from clear, as Russian officials have strongly asserted that Georgia initiated the conflict by attacking Russian troops in South Ossetia, and allegedly committing atrocities against Ossetians. While the extent or even the existence of any atrocities committed by Georgian troops in South Ossetia remains unproven, there appears to be little dispute that the hostilities were initiated by Georgian troops that began heavy shelling of Russian troops in South Ossetia; Russian troops have been present in South Ossetia for the past fifteen years, effectively since the break-up of the Soviet Union, pursuant to a mutual agreement between the governments of Russia and Georgia. To be sure, it can be argued that Russian use of military force in Georgia was excessive, but one can only imagine how restrained the United States would be if Castro suddenly decided to start lobbing artillery shells into Guantanamo.

Any objective observer of recent international affairs would have to acknowledge that the most militarily adventurous nation has been the democratic United States, not the autocratic Russia or China. In the past twenty years, the United States has launched invasions of numerous sovereign nations: Panama, Iraq (twice), Somalia, Haiti, the former Yugoslavia, Afghanistan, and most recently, Pakistan. Many of these invasions have had little to do with either the defense of the United States or a response to direct threats against the United States. Nor have many of these military actions by the United States received the approval of any international authority. The most egregious example, of course, is the American invasion and occupation of Iraq, which the United Nations explicitly refused to bless. The United States invaded Iraq anyway, effectively unilaterally, and has occupied Iraq for the past five years. As long as the Republican Party remains in power in Washington, there is no reason to believe that this occupation will end anytime in the foreseeable future. There have been no international calls to have the United States subjected to military or economic sanctions because of its patently illegal occupation of Iraq, comparable to the assertions that followed Russia’s relatively short-lived incursion into Georgia.

The military aggressiveness of the United States in recent years has not been limited to the launching of invasions of other countries. The United States has consistently pressed for the eastward expansion of NATO, including into the former Soviet Union in states bordering directly on Russia, such as the Ukraine and Georgia. It is not entirely clear what purpose NATO serves today following the end of the Cold War and the break-up of the Soviet Union. The United States has sought to make it seem as though NATO is merely an adjunct of the European Union, playing a role that is as much an economic one as a military one. Russian leaders Yeltsin and later Putin argued that if this is the case, then there is no reason why Russia itself could not become a member of NATO. The United States has staunchly opposed this suggestion. Russia has viewed American efforts to expand NATO right up to its doorstep with great suspicion, seeing it as an effort by the United States to expand its military power throughout Eastern Europe and place Russia in a military position where it is at the mercy of the United States. Russia’s suspicions about the ulterior motives of the United States draw support from the Bush Administration’s insistence upon installing American missile systems in Poland and elsewhere in Eastern Europe. To make matters worse, the Bush Administration has advanced the preposterous claim that the purpose of these missile systems is to protect Poland and the rest of Eastern Europe from a missile attack launched by Iran, supposedly having no connection at all to Russia. Not surprisingly, one of the first things that the Bush Administration did in response to Russia’s Georgian incursion was to announce the agreement with Poland to proceed with the construction of American missile sites; in other words, the United States promptly dropped the fig leaf that the missiles were supposedly directed against Iran rather than Russia. No wonder Russia views the United States as a duplicitous, aggressive power intent upon making itself the dominant military power in the world and reducing Russia to a vassal status.

Ultimately, there is not much to be gained by attempting to dissect the particulars of Kagan’s polemic. Kagan is primarily a propagandist, not an objective analyst of international affairs. As noted, Kagan was one of the founders and intellectual leading lights of PNAC. PNAC seeks to promote an agenda based on American military hegemony. The maintenance, and expansion, of a massive American military establishment is the essential component of the PNAC program. The PNAC thesis is that the United States is the world’s sole superpower following the end of the Cold War, and that the United States should freely use its military supremacy to establish a dominant position in the world, before other powers such as Russia and China can come into their own as potential rivals. The goal is to establish a Pax Americana, a new Roman Empire that will last for the balance of the twenty-first century and beyond.

This then is the true subtext of The Return of History. While Kagan may be purporting to sound the alarm about potential dangers posed by states such as Russia and China, his real agenda is to justify the continuing expansion of American military power throughout the world. And, given the assumptions underlying Kagan’s view of human history – that bloody military conflicts and struggles for national hegemony are an inevitable part of human relations and will continue as such for the foreseeable future unless the United States gets busy establishing a Pax Americana – the program Kagan is promoting is perfectly understandable, even laudable. After all, if you assume that great power military conflict, i.e., warfare between powerful nation states, is an inescapable aspect of the human condition, it makes sense that you would want your nation to come out on top. It all comes back to this concept that human nature is inherently violent and aggressive – the thumos of the ancient Greeks on which both Kagan and Fukuyama place so much importance – that determines the aggressive militaristic agenda that Kagan, and the rest of the neo-cons, want the United States to pursue.

In the title of this post, I characterize the concept of an inherently violent and aggressive “human nature” as a “myth”. But is it? Centuries of bloodshed and warfare would argue that I am a blind fool in making such an assertion. This then brings me to the second component of the inspiration for my post, my recent re-viewing of Kubrick’s 2001.

I have always believed that the most striking segment of 2001 is not the protracted scenes of balletic space travel or the psychedelic light show at the end of the film, but rather, the introductory segment entitled “The Dawn of Man.” This part of the film deals explicitly with the relationships among violence, aggression, tribalism, warfare and civilization. Kubrick’s concept of an inherently bloodthirsty human nature as articulated very clearly in the opening section of 2001, permeates all of his films, most notably Clockwork Orange, Dr. Strangelove, and The Shining.

For those readers who, unlike me, have not committed every frame of 2001 to memory, I will recap the “plot” of the opening segment of the film. The film focuses on a group of early hominids, probably Australophithecenes or a similar species, living on the African plains in terror of predators, eking out a meager subsistence by competing with tapirs and other mammals for edible roots and sparse vegetation, and struggling with rival hominids for control of scarce water resources. One day, the hominids are visited by intelligent extraterrestrials in the form of a mysterious black monolith, accompanied by the eerie music of Gyorgi Ligeti, and the encounter triggers the beginning of logical thought in the hominids. While gazing at a pile of tapir bones, it occurs to one of the hominids, to the strains of Also Sprach Zarathustra, that the femur could be used as a weapon to bash in the skulls of living tapirs. The thought is transformed into action and the hominids are promptly feasting on raw tapir meat. They soon use the bone-clubs to attack and kill rival hominids in order to gain control of a contested waterhole. The victorious hominid throws his club into the air in triumph, and the film abruptly cuts to outer space in the year 2001, where Americans are competing with Soviets for control of the moon. The message of all this is quite clear: there is a direct linkage between aggression and civilization. Violence is inherent in human nature.

When 2001 was made in 1968, many of the most important anthropological discoveries that have given us information about the evolution of early hominids had not yet been made. Lucy, the nearly intact fossilized remains of a female Australopithecus, was not discovered until 1974. The discoveries that have been made about early hominids make it clear that the version of events put forth in 2001, aside from the obvious fact that there is no evidence that singing extraterrestrial monoliths played any role in human evolution, is almost entirely incorrect.

Some of the errors in 2001 were clear to me in my recent re-viewing as a matter of commonsense, and I was astounded that I had not noticed them before. My daughter, a first-year medical student who took me to the screening as a birthday present, immediately pointed out the absurdity of any animal suddenly changing from herbivorous prey to carnivorous predator, as its digestive system could not possibly tolerate such a radical change in diet. Obviously, the human capacity to consume animal protein is something that evolved over a long period of time. Indeed, anthropological discoveries indicate that early hominids had a long history of consuming animal protein, but they did so because they were scavengers, not because they were hunters. The act of killing animals in order to consume their flesh was actually a fairly late development in human evolution. By the time that occurred, hominids had been eating animal protein for centuries, usually in the form of bone marrow obtained from the skeletons of animals that had been killed by other predators. And by the time that humans began the practice of hunting living animals for food, humans were well advanced in the making of tools and were already well on the road to the development of what we would ultimately call civilization.

The question of tool-making also brings up another obvious fallacy in the scenario presented in 2001. Tapirs, like many mammals, are covered with pretty tough hides. Even if an Australopithecus could figure out how to club a tapir to death with a femur, the hominid would still have the problem of cutting open the carcass of the dead tapir in order to consume its flesh. Hominids do not have sharp fangs or claws. In order to dissect an animal to be able to eat it, a hominid would have to have some form of cutting tool. Plainly, intelligent tool-making behavior among hominids preceded hunting. In fact, anthropological discoveries have shown that probably the earliest tools created by hominids were sharpened stones to be used as cutting tools. These primitive “knives” were too small to be used as effective weapons to kill prey; unquestionably, they were used to cut open the carcasses of already dead animals that were killed by other predators and appropriated by hominid scavengers.

One aspect of human pre-history that 2001 probably got right was the focus on competition for water as being a central aspect of hominid existence. However, even this fact sheds a somewhat different light on human evolution. Early hominids required water not just because they were thirsty, but because water played a unique role in human evolution. Again, the study of fossils such as Lucy indicates that from a very early time, hominids had developed two of the characteristics that we often think of as uniquely human: bipedalism and relative hairlessness. These characteristics almost certainly relate to the fact that hominids have a uniquely efficient cooling system. Bipedalism helps to make the human cooling system work more efficiently, since it exposes a larger surface area of the skin to the air than would be the case for an animal walking on four legs, thereby leading to more rapid evaporation of perspiration and more effective cooling. As a consequence, however, hominids have to consume much greater amounts of water than do other animals.

This highly efficient cooling system provided early hominids with an important advantage – they could cover great distances in the hot African climate. Again, this is critical to understanding what anthropology has taught us about the existence of early hominids. Early hominids were highly nomadic creatures, existing not as hunters, but as scavengers. Hominids found a neat little evolutionary niche that enabled them (us) to survive notwithstanding their lack of strength and speed or innate weapons such as fangs and claws. They could roam about large distances in the African heat, finding animal protein to eat in the remains of carcasses left behind by predators and in the bits of marrow dug out of animal bones. This relatively high protein diet in turn made possible other evolutionary improvements, such as a gradual increase in height and weight, and most importantly, larger brain size.

Let’s now do a Kubrickian quick cut and jump back to the world of 2008, where Robert Kagan and the neo-conservatives are prattling on about “the return of history” and the inevitability of inter-state warfare. But is there really such a thing as an inherently violent “human nature” that makes warfare an inescapable component of the human condition? I would submit that the evidence would not support such a conclusion. What we can learn from anthropology is that to the extent that there is such a thing as “human nature” – and in my view, the very concept is of highly questionable utility – that nature is not one of violence and aggression, but rather, one of opportunism and improvisation. To be sure, humans have the capacity to be aggressive and violent, but it is a capacity that tends to be used when it is expedient to do so. All in all, I would submit that the capacity for violence is well down the list of distinctive human characteristics. The scrawny, slow-footed, clawless and fangless creatures that ultimately evolved into homo sapiens survived and even flourished not because they were so violent and aggressive, but because they were clever scavengers who could steal a carcass from a predator, who could figure out ways to get the maximum amount of nourishment out of a dead animal, and who could explore great distances in order to find more carcasses and the precious water they needed to keep their unique cooling systems working.

What does this tell us about thumos, the ancient Greek concept of an inherent human propensity for aggression, that is so important to Fukuyama and Kagan, and many other philosophers as well? I think that thumos is another ancient Greek myth, having no more reality than Pegasus or Medusa. As noted, the patriarch of the Kagan clan, Donald Kagan, is a classics scholar, and there is a tendency among classicists to think that just because the ancient Greeks believed something and attached a portentous Greek word to the belief, it must be true. Galileo disproved Aristotle’s claims about the speed with which objects of different weights fall to the ground, thereby paving the way for Newton and the beginning of modern science. I have no problem with a similar declaration of independence from the tyrannies of ancient Greek philosophies in the realm of social science, which, among other things, have saddled us with some baseless mythology about human nature.

What does all of this have to do with contemporary international relations, the subject of Kagan’s recent little book? It seems to me that if you believe that there is such a thing as human nature that is exemplified by Kubrick’s early hominids, whose first sentient thoughts concerned killing, first other animals and soon other members of its own species, ultimately building an entire civilization based on aggression and bloodshed, then you will be inclined to accept Kagan’s view of international affairs, in which large-scale inter-state warfare is inescapable and in which the wisest policy is to seek to become the dominant power. On the other hand, if you believe that if there is such a thing as human nature, it is best exemplified by Lucy and her descendants, highly opportunistic scavengers who only developed the use of violence as a survival technique fairly late in the day and after human beings were well on the road to civilization, then you are more inclined to see the evolution of economic systems and the development of social and political institutions, rather than the inevitability of inter-state warfare, as the most important forces shaping international affairs.

As is evident from what I have written, my view is that Lucy, the real hominid, tells us a lot more about human nature than do Kubrick’s fictitious hominids. Human beings are principally driven by the need to make a living for themselves and their families. Without question, violence has played a very important role in our history, but violence is an adaptation to particular circumstances, not an instinctual driving force that inevitably controls the behavior of human beings. Under the right circumstances, there is no reason why the role of violence in human affairs cannot be reduced to a minimum. This applies in particular to the most destructive manifestation of human violence, inter-state warfare.

At the present stage of human development, economic conditions have brought us to a point where the virtual elimination of large-scale inter-state warfare is indeed a realistic eventuality. From the time of Lucy until relatively recently, virtually all human beings spent most of their lives confronting the fundamental economic problem of survival. Today, that problem has been solved for vast numbers of people. Because of the progress of economic globalization, there are now large numbers of people leading middle-class lives in China and other Asian countries, India, Russia, Latin America, and even parts of Africa and the Middle East, in addition to the traditionally wealthy nations of Western Europe, North America, and Japan. Major inter-state warfare among these people would be nothing less than economic suicide; in this era of nuclear weapons, it would also be literal suicide. Unless one believes that there is such a thing as thumos – an inherent instinctual drive towards aggression and violence – it is nothing less than lunacy to think that large-scale inter-state warfare is likely to break out under these circumstances.

The greatest danger to the prospects for general peace among the advanced capitalist nations of today’s world comes not from the purported fact that human nature is inherently violent and aggressive, but rather, from the belief that human nature is inherently violent and aggressive. That is why I have labeled such a belief in human nature as a “pernicious myth”. If one believes in this myth, then one will act accordingly by being as violent and aggressive to others as you believe they intend to be towards you. As Kagan’s book demonstrates, a great many people do believe in the myth of a violent human nature, and many of them are in the position to control governmental policy, both in the United States and elsewhere. To the extent that people holding such an ideology are in a position to determine policy, the danger of inter-state warfare will remain a real one, notwithstanding the fact that economic reality clearly makes such actions absurd.

Fortunately, at the end of the day, economic reality is far more powerful in shaping events than the fantastic schemes of misguided ideologues such as Kagan. There is now good reason to think that this day may be coming sooner rather than later. I began writing this post in July 2008. The conflict between Russia and Georgia occurred a few weeks later. Kagan and the rest of the neo-cons, and most vociferously Senator McCain himself, were proclaiming victory for their view of the world. The dangers posed by a “resurgent Russia” were claimed to be very real and extremely urgent. Calls for preparation for the realistic possibility of a war with Russia became widespread. Vice Presidential candidate Palin could announce that we may well have to go to war with Russia, letting us know that in the meantime we could all rest assured that she was keeping an eye on what those dangerous Russians were up to because she was watching them out of her kitchen window.

It is now late September 2008 and already, the world has changed considerably. Russia is already getting a sense of the limitations that will be placed on the aggressiveness of its military actions in the world of economic globalization. There have been substantial capital outflows from Russia in the weeks following the Georgian conflict. http://www.thomaspmbarnett.com/weblog/2008/09/georgia_opportunity_cost_8b.html#comments This has not happened because there are ideologically-driven Western investors who want to punish Russia for its actions in Georgia. Rather, the capital outflows from Russia are the result of the fact that investors are understandably queasy about putting large amounts of their money in a country whose government has shown a propensity for recklessness by engaging in brinksmanship and military adventurism. The Russians are getting a lesson in what it means to be part of the global economy, and I strongly suspect that the lesson is getting through. The Russians are far more interested in keeping their booming economy on an upward trajectory than they are in flexing a bit of military might in the pesky, but ultimately largely irrelevant neighboring state of Georgia.

The much more significant intrusion of economic reality upon the fantastical schemes of the neo-cons, however, is taking place here in the United States. The American financial system is currently on the brink of a total collapse due to excessive overall debt and financial institutions’ non-transparent investments in “off-balance sheet” derivative products. In order to avoid an economic catastrophe on a scale unknown since the 1930s, the Federal government has committed to bailouts of major financial institutions at a cost well in excess of $1 trillion.

These economic developments make the Kagan/McCain assertion that we must get busy preparing for a war with China and/or Russia, while we are already militarily overextended in Iraq and Afghanistan, utter fantasy. After laying out hundreds of billions of dollars to save the American financial system from the consequences of profligate investments, the United States government will hardly be in a position to finance the kind of massive military build-up that Kagan and McCain are urging. Indeed, the cost of this enormous bailout of the financial industry will have to be paid for through expanded American borrowings from foreign sovereign wealth funds, in large part from China and Russia, the very countries against which Kagan and McCain think we should be preparing for war. Many things changed in America as a result of the financial crisis of September 2008; among the most beneficial of those changes may well be the sounding of the death knell for the neo-con/PNAC dream of establishing a new American empire.

On a partisan note, I point out that Senator Obama’s statement on the financial crisis, delivered on September 19, 2008, specifically highlighted the global ramifications of the crisis and the need for the United States to work with the nations of the G-20 to develop new financial regulatory regimes that can address the needs of the globalized economy for the twenty-first century. http://www.barackobama.com/2008/09/19/statement_from_obama_on_emergi.php I realize that I am a very dedicated supporter of Senator Obama, and I am more than a little predisposed to gush about the wisdom of just about anything he says; I have previously written in praise of Obama’s understanding of the interconnectedness among America’s need for domestic political and economic reform, redirecting America’s foreign and military policy, and changing America’s relationship with the global economy. http://democraticcore.blogspot.com/2008/04/its-all-connected.html Obama is virtually the only politician who has emphasized the relationship between the current financial crisis and the need for reform in America’s relationship with the rest of the world. I find it particularly heartening that Obama specifically referred to the G-20 as the entity with which the United States must coordinate the shaping of this new financial order – the old G-7, plus Russia, plus other new economic powers such as China, India, and Brazil – reflecting his understanding that the United States must look beyond the old global powers in Western Europe and Japan in making a place in the twenty-first century global economy.

There are still people out there who believe in the myth of an inherently violent human nature, and should they be in a position to make policy in a McCain Administration, I fully expect that they would beat the drums of the ongoing dangers of major inter-state warfare. However, in the face of an economic reality that has made it clear that the demands of economic interconnectedness make all other considerations seem puny by comparison, it seems doubtful that this drumbeat will find many receptive ears.

In short, neither thumos, nor the ghosts of Kubrick’s murderous, but fictitious, hominids, can alter the reality of the world of economic interconnectedness that defines human existence in the twenty-first century. “The return of reality” has served notice that "the return of history” should be placed on the junkpile of the many discredited myths that have bedeviled the history of the human race.

The Forgotten Hero Of The Democratic Convention: George McGovern

Of course, Barack Obama was the hero of the Democratic convention. He re-defined American politics. He gave us a frame for the issues of our time that I truly believe will give us generations of progressive government. We can't count our victories yet, and we all have a lot work to do, but after hearing Senator Obama's speech last night, you're going to have a hard time convincing me that we can lose.

However, I'd also like to step back a moment and acknowledge a great American who in many ways made Senator Obama's triumph possible. He has been one of my heroes since I rang something like ten thousand doorbells for him thirty-six years ago: George McGovern.

Most people think of George McGovern only as the failed Presidential candidate of 1972, the ultimate liberal loser. He was so much more than that. Like Obama he was a powerful and courageous orator. He dared to stand up on the Senate floor and proclaim, "This chamber reeks of blood!" because of its support for the Vietnam War. He was a genuine war hero who flew numerous missions over Europe during World War II - but rarely mentioned the fact to further his political career. He ran an honest and honorable campaign, and the memories of my work in that campaign will always remain a constant source of hope and inspiration for me. And until this year, he was the only Presidential candidate of the Democratic Party who put forward an unabashedly progressive agenda - Obama's clarion call for radical progressive tax reform could have come straight out of the McGovern platform.


However, George McGovern's most lasting legacy was the work of the McGovern Commission, which completely revised the rules of the Democratic Party and brought about what may be one of the most sweeping, and certainly most under-appreciated, changes in the way American democracy works. That is George McGovern's contribution that made last night possible.

Much of the anger of the 1968 Democratic convention was process driven. Few remember, and many young people do not even know, that most of the delegates at the 1968 convention were not selected through primaries or caucuses. Most delegates were selected by the state committees of the Democratic Party, which were, for all intents and purposes, "smoke-filled rooms." What enraged liberal activists in 1968 was not merely the fact that the Democratic Party had rejected the antiwar movement, it was the fact that it had rejected democracy. In primary after primary (in the relatively few states that actually had binding primary elections), the voters chose the antiwar candidates, Kennedy and McCarthy. It seems astounding today, but Humphrey did not win a single primary. Yet, because of the backing he received from LBJ and other power brokers within the party, Humphrey was the inevitable nominee. That fact, even more than the substantive issues that were at stake, was what drove activists to the streets of Chicago.


In the wake of the disastrous 1968 convention and the defeat of the Democratic Party, George McGovern chaired a Commission to draft new rules for the procedures for the selection of delegates. Most party insiders would have favored cosmetic changes that left the fundamentals of the old system intact. That was not George McGovern's way. The McGovern Commission drafted new rules that required that every delegate be selected by means of some form of democratic electoral process, either a primary or a caucus. "Winner take all" primaries were abolished. The McGovern Commission rules required that the make-up of the convention that would choose the Presidential nominee of the Democratic Party represent the will of the voters, not the party bosses.

McGovern paid a steep price for these reforms. In 1972, McGovern himself was the first nominee selected through this newly-mandated democratic process. This did not sit well with some of the powers-that-be. A particularly loathsome organization called "Democrats for Nixon" came into being. It was not just McGovern's opposition to the Vietnam War and his espousal of a strong progressive agenda that turned the bosses against McGovern. It was the fact that they didn't select him and couldn't control him.


I believe that in time scholars of American political history will recognize the reforms of the McGovern Commission as one of the great milestones in the development of American democracy. It has taken the scope of our democracy to a whole new level. Combined with the growth of the internet that has created the potential for broad-based fund raising, first explored in the Dean campaign in 2004 and developed more dramatically through the Obama campaign this year, the process opens the door to change agents who want to upset the status quo and move the party in a different direction. In many ways, it is this process that has supplanted the need for third parties. If we don't like the direction in which the Democratic Party is headed, we have the power to change it.

Barack Obama stood on many shoulders when he accepted the Democratic Party's nomination last night. Among them were the strong shoulders of a prairie populist, George McGovern.

The Shady History of Cindy Hensley McCain's Family

I have been working on a new post of a somewhat philosophical nature. I've gotten bogged down in it and it is taking me some time to figure out exactly what I want to say. So in the meantime, I've decided to go with raw partisanship.

In wandering around the internet, I came across some stories about the very shady history of the family of John McCain's wife, Cindy Hensley McCain. In fact, as soon as I saw the stories, the name "Hensley" rang a bell with me, being pretty familiar with the annals of major white collar crime in America. I had just never made the connection to McCain's wife.

The stories raised some very pointed questions about the sources of the Hensley family wealth, a family fortune that has made John McCain a successful politician and one of the wealthiest members of Congress. Specifically, these questions relate to the criminal history of various members of the Hensley family, including Cindy McCain's father, Jim Hensley, and the alleged connections the family has had to organized crime. These questions are certainly worthy of scrutiny, and hopefully, they will find their way out of the blogosphere and into the mainstream media.

At the outset, I would like to point out one of the shortcomings of some of these stories as they appear on the internet. The stories often appear in highly unreliable right-wing, anti-Semitic and racist websites. Indeed, much of the information on the Web relating to the criminal connections of the Hensley family comes from right-wing sources (including Jerome Corsi) who have long-standing vendettas against McCain. Unfortunately, these tainted sources may have caused many people in the media to shy away from the story, assuming that it is merely the lunatic ravings of McCain's right-wing enemies. But the information is real, and it can be verified through numerous sources independent of the right-wing lunatic fringe.

A second problem with this story is, why is it relevant? Much of the information about the Hensley family's criminal past goes back many years, and one can legitimately ask what bearing this should have on McCain's current candidacy. I believe the story is relevant for several reasons.


First, the Hensley family wealth, and the political connections that went along with it, have been the key to McCain's success. The Hensley family history is well-known in Arizona. Even better known is the history of Kemper Marley, the principal benefactor of the Hensleys and a man who was, in possibly every sense of the word, the Godfather of the Arizona Republican Party. When John McCain married Cindy Hensley, starting his political career almost immediately after they got married, it is inconceivable that McCain could have been ignorant of the connections he was making.

In fact, when the controversy recently arose about McCain's inability to recall how many homes he and his wife own, he told Katie Couric on 60 Minutes that he had been "blessed" to have benefited from the wealth of the Hensley family. McCain also described his father-in-law Jim Hensley as a "role model" who had succeeded in business by fulfilling the American Dream. http://www.politico.com/news/stories/0808/12754.html McCain did not mention that Hensley was a convicted felon with ties to organized crime figures.

The unsavory Hensley history also links directly with some of the most distasteful aspects of McCain's own career. The Hensleys introduced McCain to Charles Keating, a long-standing friend of the Hensleys and a co-venturer in a shopping mall in which the Hensleys invested a great deal of money (approximately $400,000). Keating contributed heavily to McCain's campaigns and provided private jets for McCain's usage. McCain returned the favor.

Finally, the most egregious aspect of the story is the way this has all been covered up by the mainstream media. For that reason alone, the story of the Hensley family's criminal background is highly relevant to the current campaign.

A good place to start looking at this story is with the puff-piece cover story that Newsweek ran about Cindy McCain in its June 30, 2008 edition entitled "In Search of Cindy McCain." http://www.newsweek.com/id/142650 The full extent of what Newsweek reported about the history of the Hensley family wealth is as follows:


"Her [Cindy's] father, Jim Hensley, was one of the most prominent men in the state. A World War II bombardier, he was shot down over the English Channel. After the war, he and his wife, Marguerite, borrowed $10,000 to start a liquor business. Through the years, it grew to become one of the largest Anheuser-Busch distributorships in the country."


A reader of this story would view the Hensley success story as a sort of Mom and Pop operation that made good through old-fashioned hard work. The truth appears to be a good deal more complicated, and sordid. An article entitled "Haunted By Spirits", which appeared in the Phoenix New Times in February 2000, provides an excellent overview of the story. http://www.phoenixnewtimes.com/2000-02-17/news/haunted-by-spirits/1


In fact, the funding for the Hensley liquor distributorship did not come from a mere "loan"; it reputedly came from Kemper Marley. Marley is the key figure in the history of the Hensleys, and therefore McCain, and a towering figure in Arizona politics. Marley was also a known criminal who is widely believed to have had extensive connections to organized crime. Jim Hensley had worked for Marley going back to the 1920s, when Marley was the most powerful bootlegger in Arizona. After World War II, Hensley again went to work for Marley, who had by then started a major liquor distributorship, United Distributors, following the repeal of Prohibition.


In 1948, Jim Hensley and his brother, Eugene Hensley, were convicted in Arizona Federal Court of conspiracy to falsify the records of United Distributors. According to the testimony at trial, the Hensley brothers had created phony invoices to cover up unreported cash sales of liquor out of the business. Eugene Hensley was sentenced to one year in prison and Jim Hensley received a sentence of six months, which was later suspended. Marley was not charged, and neither Hensley testified.


Jim Hensley was again indicted for Federal liquor violations in 1953. This time Hensley, as well as Marley's company, were acquitted. A young Arizona lawyer named William Rehnquist was part of the defense team.


Jim Hensley started his Anheuser-Busch distributorship in Phoenix in 1955. Allegedly, Marley bestowed this business upon Hensley as a favor for having kept his mouth shut during the earlier criminal trials. According to AmericanMafia.com, Marley was closely connected with Peter Licavoli, Jr., a Detroit mobster who relocated his operation to Arizona in the 1940s and became known as the "Mafia Prince" of Arizona. http://www.americanmafia.com/Feature_Articles_219.html AmericanMafia.com, a non-political website containing the writings of well-known crime writers and former law enforcement people, describes the linkages among Hensley, Marley, and the Mafia:

"Take the recent example of Senator John McCain, Presidential candidate and Senator from Arizona. Very few people outside the world of organized crime realize that the father of the Senator's second wife is James W. Hensley. And who was James W. Hensley, you ask. He was an Arizona businessman who fell in with the wrong crowd a while back, and ended up taking the rap for a wheeler-dealer named Kemper Marley, Sr. over a liquor violation case back in 1948. Although Hensley was represented by the best defense Arizona cash could buy, the services of future Chief Justice of the United States Supreme Court, Justice William Rehnquist, he got slammed away for a whole year. But it all worked out. When Hensley strolled out of the joint, Marley bought his silence with a lucrative Phoenix-based Budweiser beer distributorship. So, who is this Kemper Marley Sr? To answer that you have to go back to a sweltering summer day in 1976 when Don Bolles, a reporter for the Arizona Republican Newspaper, stepped into his Datsun, put his foot on the peddle and was blown to bits. Parts of the reporter's body were found ten feet from the burning car. Bolles had been poking into Arizona's local and state governments and discovered a land fraud ring, influence peddling, and shady deals that appeared to lead to the very top of Arizona's power structure and to Senator Barry Goldwater's doorstep. If the purpose of murdering Bolles was to cover a series of crimes, it was a big mistake. An enraged news media descended on Arizona, determined to uncover the facts behind the Bolles killing. The investigation led to a Phoenix liquor magnate and one time Bookie named Kemper Marley Sr., who had ties to Arizona's resident Mafia Prince, Peter Licavoli. Marley was a major financial and political power in the state and wanted to take back his seat on the Arizona Racing Commission. He had already been appointed to the post in 1976 by the Governor, only to resign several days later when his ties to organized crime surfaced. The reporter who made the connections between the mob and Marley was Don Bolles."

Interestingly, when the Obama campaign began running ads criticizing McCain for his inability to recall how many homes he owned, McCain responded by running an ad attacking Obama for having purchased his family's one home in part by arranging for a loan from Antonin Rezko, whom the McCain campaign emphasized is a "convicted felon." McCain is the beneficiary of far greater financial largess derived from Jim Hensley, also a "convicted felon."

Notably, Hensley's criminal record did not prevent him from owning a liquor distributorship, at least not in the eyes of Arizona authorities. Hensley filed a false disclosure form in 1988 concealing his Federal conviction, but Arizona authorities took no action against Hensley.

The Budweiser distributorship was not the only business venture that the Hensleys entered into with Marley. In December 1952, Jim and Eugene Hensley purchased a controlling interest in Ruidoso Downs, a racetrack in Albuquerque. However, subsequent litigation revealed that a concealed owner of Ruidoso was Teak Baldwin, a well-known Arizona bookmaker and associate of Marley. According to the New Mexico State Police, the Hensleys and Baldwin were acting as fronts for Marley in the venture. Baldwin would later be convicted of tax evasion. In 1955, Jim Hensley sold his stake in Ruidoso to his brother Eugene.

In 1966, Eugene Hensley was convicted of Federal tax evasion for having skimmed large amounts of money out of Ruidoso to make improvements on his home in Scottsdale and to transfer funds to his family. (The cases of Hensley v. United States, 406 F.2d 481 (10th Cir. 1968) and Ruidoso Racing Association v. Commissioner of Internal Revenue, 476 F.2d 502 (10th Cir. 1973) are very well-known in the law of tax fraud). The United States Tax Court described the evidence of Hensley's fraud as "overwhelming." Eugene Hensley was sentenced to five years' imprisonment. Before reporting to prison, Hensley transfered ownership of Ruidoso to Newco Enterprises, which immediately entered into a long-term contract with Emprise Corporation. Emprise had a long history of problems with governmental authorities as a result of organized crime connections. Emprise reorganized and moved its operations to Arizona, with strong backing from Kemper Marley. Marley had contributed heavily to then Arizona Governor Raul Castro, and Castro appointed Marley to Arizona's racing commission in 1976.

Marley's dubious activities drew the attention of Don Bolles, an investigative reporter for the Arizona Republic. As a result of Bolles' revelations, Governor Castro removed Marley from the racing commission. In June 1976, Bolles was killed by a car bomb. The organization Investigative Reporters and Editors ("IRE") started the "Arizona Project" to probe the background of Bolles' murder. http://www.ire.org/history/arizona.html A tow-truck driver and dog track operator, John Charles Adamson, pleaded guilty to having planted the bomb that killed Bolles and testified against two others who had hired Adamson to commit the murder. Bolles' last words were, "Adamson, Emprise, Mafia." Adamson later testified that he was told by the man who paid him to plant the bomb that killed Bolles that Marley had wanted Bolles killed, as well as then Arizona Attorney General Bruce Babbitt, who was conducting an antitrust investigation of the Arizona liquor industry. Marley was never charged for the murder of Bolles.

In the wake of Bolles' murder, the subject of organized crime infiltration of Arizona businesses and politics became a matter of national attention. In March 1977, the Albuquerque Journal ran a major story about the Hensleys and their connections to organized crime, which was re-reported in the New Mexico Independent this past June. http://newmexicoindependent.com/view/the-politics-of-beer Time magazine ran a major story in March 1977 entitled "Putting the Heat on the Sunbelt Mafia" addressing Marley's alleged role in Bolles' murder. http://www.time.com/time/magazine/article/0,9171,914845-3,00.html

It is in this context that John McCain comes on the scene. McCain met Cindy Hensley in early 1979, he divorced and remarried in 1980, and after retiring from the Navy, McCain settled in Arizona and promptly went to work for the Hensley distributorship in a "public relations" capacity. The job gave McCain a handsome salary and a high profile in the state.

It is important to remember a few facts about McCain's personal background. McCain was a Navy brat, born in the Panama Canal Zone, who spent his entire life moving around military bases and never setting down roots. He had no personal connections to Arizona, or indeed, to anyplace else. If he was intent upon establishing a political career, it was essential that he establish strong connections with the local political establishment. It strains credulity to believe that McCain was unaware of the Hensley family history and the family's close connections to Marley, one of the most powerful men in the state.

In 1982, less than two years after marrying Cindy and going to work for Hensley Distributors, McCain ran for a seat in Congress. The seat in Arizona's First Congressional District was open because of the recent retirement of Republican Congressman John Rhodes. The Hensley family bought a house in the District in order to enable McCain to run. McCain won the election, angrily challenging "carpetbagger" allegations that were made against him by pointing to his status as a Prisoner of War in Vietnam.

In 1986, McCain took over the Senate seat long held by Barry Goldwater, another recipient of Marley's support. As noted, another Hensley family friend and business partner, Charles Keating, helped finance McCain's rise. The members of the Hensley family, including Cindy and her father, were also business partners with Keating in an Arizona shopping mall. The Hensley investment in that Keating venture was made through the same real estate partnership that purchased the home in Arizona's First Congressional District that launched McCain's political career.

McCain would later reach out to Federal regulators on Keating's behalf when Keating's massive savings and loan fraud began to unravel. McCain was officially chastised by the Senate for showing bad judgment in his dealings with Keating, although he escaped the more severe discipline meted out to other Senators. McCain adamantly refused to answer questions, however, about the Hensley family's business relationships with Keating, calling reporters from the Arizona Republic "idiots" and "liars" for having inquired about the Hensley transactions. Once again, McCain relied upon his background as a POW in Vietnam to deflect any questions challenging his integrity.

I think this is a story worth knowing about. It would be nice if somebody reported it.

Liberals Should Calm Down About The New Surveillance Statute

In my earlier blog, I had posted a comment that was sharply critical of Bush’s warrantless electronic surveillance program. http://truthvsbush.blogspot.com/2006/02/september-11-2001-day-that-will-long.html I therefore feel a certain obligation to comment on the controversy surrounding the recently enacted amendments to the Foreign Intelligence Surveillance Act (“FISA”). This legislation has attracted particular attention because of Senator Obama’s support for it, which has drawn intense criticism from the left, leading to accusations that he is flip-flopping or selling out. As described below, I believe that this criticism of Senator Obama is grossly unjustified, and that the concerns about the new FISA statute raised by civil liberties groups are overblown.

First, let me reiterate my strong objection to the illegal program of warrantless surveillance that the Bush Administration conducted. However, let me also emphasize that the basis for my objection was that Bush’s program clearly violated FISA – a felony violation under the statute – and circumvented the scrutiny of the FISA court. This was an abuse of Executive power, violating the separation of powers mandated by the constitution. In addition, by conducting surveillance outside of the scrutiny of any court, Bush pursued a program that was opaque and unaccountable. The simple fact is that even today, no one outside of the Bush Administration itself knows exactly what sort of surveillance was conducted. For all we know, the surveillance could have targeted Bush’s political opponents. It was precisely such abuses that the FISA statute was designed to prevent, by creating a specialized, highly-secret “FISA court” that would review and authorize foreign intelligence electronic surveillance, so as to prevent Presidents from conducting abusive, politically-oriented electronic surveillance under the purported rubric of “national security.” In my earlier posting, however, I was also careful to point out that if there were any deficiencies in the existing FISA statute that impeded the legitimate needs of the government to conduct the fullest possible surveillance of terrorist organizations such as Al Qaeda, then the appropriate remedy would be to ask Congress to amend the statute; the remedy would not be simply to ignore the statute altogether, as Bush did.

The new statute is an attempt by Congress to fix perceived weaknesses in the old FISA statute. Many objections to the old statute may well be legitimate. In attempting to address these problems, the new statute does not abandon the requirement of FISA court review and authorization. The new statute is by no means an affirmation of what the Bush Administration did; if anything, it is a repudiation of Bush’s actions, by making it clear that legitimate foreign intelligence surveillance can be conducted consistent with the law and under the scrutiny of the FISA court, so as to prevent abuses of Presidential power.

In my opinion, there is absolutely nothing on the face of the new FISA statute that in any way violates the Fourth Amendment’s ban on unreasonable searches and seizures. To be sure, there are some debatable technical aspects of the new law, as I discuss below, and it will take some time to see how the law works in practice, in order to determine whether or not it succeeds in striking a proper balance between protecting legitimate privacy interests and enabling the government to gather intelligence about terrorist organizations to the fullest possible extent. On its face, however, the new statute appears to be a reasonable attempt to reconcile these interests in a manner fully consistent with the requirements of the Fourth Amendment.

I cannot emphasize this point too strongly. The hyperbole that has been circulated about the new FISA statute is astounding. The ACLU has recently announced that it is filing a lawsuit to challenge the new statute, claiming that the new law is “un-American” and sounds the virtual death knell of the Bill of Rights (and parenthetically, also provides a good opportunity for the ACLU to solicit donations). On a recent television program, law professor Jonathan Turley described the statute as marking the end of the Fourth Amendment, claiming that the statute would permit Presidents to conduct warrantless surveillance of all Americans’ communications without any limitations. Even a cursory reading of the statute reveals that Turley’s statements are utter poppycock. (To make an ad hominem aside, Turley strikes me as the new Alan Dershowitz, a publicity-seeking self-promoter and not a serious legal scholar; I note that Turley, now the darling of the civil libertarian left, originally became known as a TV pundit because of his vigorous support of the Republicans’ impeachment of Bill Clinton, something that in my view, was little more than an attempted coup d’etat).

There are two principal aspects of the new FISA statute on which public attention has concentrated. First, it expands the jurisdiction of the FISA court to approve foreign intelligence surveillance in a broader range of circumstances than is permissible under prior law. It is simply untrue, however, that the new statute would authorize blanket warrantless surveillance of all Americans’ communications. In my judgment, these modifications to the FISA statute are reasonable and fully consistent with the Fourth Amendment, as discussed below.

Second, the new statute grants a form of civil immunity to telecommunications companies that assisted the Bush Administration in conducting surveillance without authorization of the FISA court during the period between September 11, 2001 and January 2007 (by way of shorthand, I refer to this issue as that of "telcom immunity"). This provision is more problematic, although again, I do not see that it raises any constitutional issues. I do agree with Senator Obama that this provision should have either been deleted or delayed, since the new statute also contains a provision requiring various federal Inspectors General to report to Congress as to what exactly the Bush Administration did, and it would have been preferable for the immunity not to take effect until after Congress knows exactly what it is immunizing. The Bush Administration, supported by all Senatorial Republicans (except Senator Specter) and a handful of Democrats (not including Senator Obama), was adamant in opposing these modifications to the immunity provisions. Given a choice between a FISA statute that included a flawed immunity provision, and no FISA statute at all, I believe that Senator Obama made the correct choice in voting for the new statute. By “correct” I mean not just that it was politically smart, although it clearly was, but that it was also in the best interests of the country.

Background of FISA


In order to understand my support for the new FISA statute, it is helpful to understand the history and evolution of Fourth Amendment law as it applies to the subject of foreign intelligence surveillance. The old FISA statute was enacted in 1978 in response to the Supreme Court’s decision in United States v. United States District Court, 407 U.S. 297 (1972) (generally known as the “Keith case”), which held that President Nixon did not have the power under the Fourth Amendment to order warrantless electronic surveillance in cases involving “domestic security.” The Supreme Court left open the possibility that a more relaxed standard would apply under the Fourth Amendment in cases involving foreign intelligence where the activities of foreign powers and their agents are under scrutiny.

FISA was enacted to provide a legal framework for electronic surveillance in the foreign intelligence arena in light of the Supreme Court's ruling in the Keith case. There were certain fundamental concepts at the heart of the original FISA statute. First, the statute provided that foreign intelligence surveillance may be conducted without a court order only if the Attorney General certifies that there is no reasonable likelihood that the communications of a U.S. person (a citizen or resident alien) will be intercepted. Second, if the Attorney General could not make such a certification, then foreign intelligence surveillance could only be conducted pursuant to an order issued by a specialized, highly secretive FISA court based upon a showing that the target of the surveillance was a foreign power or an agent of a foreign power (the post 9/11 Patriot Act redefined the term "foreign power" to include terrorist organizations). Third, the Attorney General would have to develop “minimization” procedures (I discuss the concept of minimization in more detail below) to ensure that the surveillance only served the purpose of gathering foreign intelligence information and did not unreasonably invade the privacy of communications unrelated to foreign intelligence; these minimization procedures would have to be reviewed and approved by the FISA court to ensure their compliance with the Fourth Amendment.

The impetus for the new FISA statute emanated from the contention that the limitation of the FISA court’s jurisdiction to surveillance of foreign powers and their agents rendered the statute ineffective as a tool for gathering intelligence about terrorist organizations such as Al Qaeda. After all, organizations such as Al Qaeda do not publish membership directories, and it may not be possible to identify specific individuals as being “agents” of these organizations. Because of the inability of intelligence agencies to target specific individuals as agents of a foreign power, it is quite likely that intelligence agencies would be barred by the old FISA statute from conducting electronic surveillance that would undoubtedly yield a good deal of valuable intelligence about the activities of terrorist organizations.

It was here that the Bush Administration chose to embark upon a course of action that was both grossly unconstitutional and monumentally stupid. Instead of asking Congress to amend the statute in order to expand the jurisdiction of the FISA court so that any deficiencies in FISA could be cured in a manner consistent with the rule of law, Bush chose to act as though FISA did not even exist and authorized the conduct of rampant warrantless surveillance that completely bypassed the authority of the FISA court. Bush’s lawless course of conduct went on for approximately five and a half years. Finally, new legislation was proposed to deal with the shortcomings of the old FISA statute, which culminated in the recently-enacted statute that has caused so much controversy. As an ultimate display of Executive chutzpah, Bush commented that the new statute was “long overdue”; of course, the only reason it took so long was because of the numerous complications arising from the fact that Bush had chosen to don his familiar cowboy hat and ignore Congress and the FISA court in conducting warrantless surveillance, thereby giving rise to the complex issue of telcom immunity that has been the major sticking point in the enactment of the new statute.

The new FISA statute deals with the shortcomings of the old law by eliminating the limitation of the old statute of FISA court jurisdiction to the surveillance of foreign powers and their agents. Instead, the new statute authorizes the FISA court to enter an order permitting the surveillance of the communications of any non U.S. person, so long as there is probable cause to believe that the non U.S. person is located outside of the U.S. Communications of U.S. persons can be targeted for interception only if there is probable cause to believe that the U.S. person is both located outside of the U.S. and is acting as the agent of a foreign power. In this context, the new statute expressly prohibits "reverse targeting", i.e., the targeting of a non U.S. person as a pretext for conducting surveillance of a U.S. person. Most importantly, the new statute continues the requirement of “minimization” and empowers the FISA court to review the minimization procedures in order to ensure compliance with the Fourth Amendment (I’ll discuss the crucial aspects of minimization below).

Constitutionality of the New FISA Statute

The new statute clearly is going to generate a good deal more surveillance than was possible under prior law. This will likely be of benefit to intelligence agencies, although I actually have some concern that the new law will generate too much data and will prove to be of little practical use. However, the real question is whether the law is constitutional under the Fourth Amendment. I have very little doubt that it is.

It is very important keep in mind that the new statute applies to the interception of communications occurring, at least in part, outside of the U.S. The Fourth Amendment has little or no extraterritorial application. Since the beginnings of the Republic, courts have recognized that the Fourth Amendment permits warrantless “border searches” in order to control the flow of goods and people into the country. Air travelers must submit to warrantless searches, without probable cause, as a requirement for air travel. For similar reasons, the Fourth Amendment places little limitation on the government’s power to intercept telecommunications occurring outside of the U.S.

There are two main reasons why the Fourth Amendment has little or no extraterritorial reach. First, activities occurring outside of the country raise issues of national security, not just domestic security, and as the Supreme Court emphasized in the Keith case, Fourth Amendment considerations in measuring the “reasonableness” of a governmental search in these two contexts are quite different.

The second reason for the territorial limitations on the reach of the Fourth Amendment stems from the nature of the Fourth Amendment’s protections. As the Supreme Court emphasized in Katz v. United States, 389 U.S. 347 (1967), the first Supreme Court decision to hold that the Fourth Amendment applies to electronic surveillance and not just physical searches and seizures, the Fourth Amendment protects “reasonable expectations of privacy.” When one makes a telecommunication outside of the U.S., one really cannot have any reasonable expectation that the communication is private. Can anyone seriously say that when one places phone calls to countries such as Egypt, Uzbekistan, or China, one does not expect that local government authorities are monitoring the calls? Indeed, very few countries in the world place restrictions on their government’s ability to conduct surveillance comparable to those imposed on the U.S. government by the Fourth Amendment. Thus, it makes no sense to construe the Fourth Amendment as limiting the power of the U.S. government to intercept extraterritorial telecommunications, when those communications are not really “private” in any reasonable sense.

The real key to the workings of the FISA statute, and the element that renders the statute constitutional, in both its old and new versions, is the requirement of minimization. Although the new statute only permits the targeting of non U.S. persons outside of the U.S. (and U.S. persons acting as foreign agents), it is inevitable that this surveillance is going to pick up the communications of many U.S. persons who may be on the receiving or sending end of the communications being intercepted. Does this fact render the new statute unconstitutional? The answer is, not necessarily, and this is why the requirement of minimization is crucial.

The problem of minimization is inherent in all electronic surveillance, not just surveillance conducted under the old and new FISA statutes. To draw an illustration from popular culture, government agents may have probable cause to believe that Tony Soprano is a nefarious criminal who discusses all sorts of criminal activity on his home phone. As such, the government can obtain a court order to tap Soprano’s phone. However, Carmela, Meadow, and A.J. may also use that phone to talk to friends and family to discuss their personal lives and all sorts of things having nothing to do with Soprano’s criminal activities; Tony himself may also conduct perfectly legitimate conversations with persons uninvolved in criminal activities. So, how do you prevent the wiretap from becoming a wholesale, unconstitutional invasion of the reasonable privacy expectations of both the Soprano family and the non-criminal people who communicate with them? The answer is minimization. The law requires the government to follow minimization procedures, such as by limiting the hours when the surveillance will take place, or by targeting or eliminating certain incoming or outgoing phone numbers based on an analysis of which ones are most likely to be related to Tony’s criminal activities.

Similar minimization requirements apply under the old and new FISA statutes. In order to obtain a surveillance order from the FISA court, the government must certify that it has in place minimization procedures to ensure that the surveillance only captures communications relevant to the gathering of foreign intelligence. Again, the FISA statute specifically requires the FISA court to approve the minimization procedures in order to ensure that the surveillance complies with the Fourth Amendment. While intelligence agencies are understandably secretive about the minimization procedures they employ so as to avoid giving a road map to targets as to how to avoid surveillance, it is generally believed that the procedures employ “algorithms” such as word searches or formulas involving patterns of communications with individuals in specific countries in order to minimize the interception of communications unrelated to foreign intelligence.

It should be emphasized that it is actually in the interest of the intelligence agencies to have meaningful minimization procedures, not only for the protection of privacy rights, but also to make the surveillance productive from an intelligence-gathering perspective. As noted above, I do have some concern that the new law is overinclusive, and will result in the interception of so many irrelevant communications that the ones truly useful to intelligence gathering will be lost. Effective minimization is essential to being able to “separate the wheat from the chaff.”

It will take some time to see if FISA’s minimization rules – which are completely unchanged by the new statute – strike an appropriate balance between the need to gather foreign intelligence information and the protection of privacy. What is important, however, is the fact that this will be worked out under the supervision of the FISA court. And again, the statute specifically directs the FISA court to tailor the minimization rules in order to ensure compliance with the Fourth Amendment. The notion being promulgated by alarmist opponents of FISA that the new FISA statute empowers the Executive branch to engage in wholesale invasions of privacy, without any check by the Judiciary, is untrue.

Technical Problems With The New FISA Statute

Before turning to the issue of telcom immunity, I’d like to refer to three technical aspects of the new FISA statute that are potentially problematic, although they do not rise to the level of creating a constitutional issue. First, there is a provision empowering the Executive to engage in warrantless surveillance when “exigent circumstances” are present. The old FISA statute also contained such a provision, and it required that such warrantless interception in exigent circumstances would be permitted so long as the government made an application to the FISA court to approve the interception within seventy-two hours (three days) of beginning the interception. The new statute is essentially the same, except it extends the time period for the government’s application from three days to seven days. I personally do not see the need for this change, as it is difficult to foresee a situation in which a period of three days would be insufficient to submit an application to the FISA court. However, I also don’t see that the difference between three days and seven days raises a constitutional defect in the new statute. And looking at the big picture, I agree with Obama’s assessment that the public’s need for comprehensive foreign intelligence capabilities outweighs what seems to me to be a minor technical defect in the statute.

The second technical issue in the new statute concerns a provision that states that if the FISA court rejects the government’s application to conduct an interception, the government may continue conducting the interception while it pursues an appeal from the FISA court’s ruling. This in itself seems appropriate. If the appeals court were to overturn the FISA court and rule that the interception should have been authorized, then it would be, of necessity, too late to undo the FISA court’s mistake, as the opportunity to intercept the communications would have already been lost. All that the new FISA statute does is to impose an automatic stay of the FISA court’s ruling pending appeal; such stays are a well-accepted aspect of American jurisprudence, and there is hardly anything radical about this aspect of the new FISA statute.

A more troubling aspect of this provision states that if there is ultimately a ruling by the appellate court that the interception should not be authorized, then the government may nevertheless keep and use the communications it has intercepted to that point. Here, it seems clear to me that the Fourth Amendment would be violated if the government attempted to use the illegally-obtained interceptions in connection with a criminal prosecution, and the statute does explicitly prohibit the use of such evidence in any court proceedings. However, it is important to recall that the purpose of both the old and new FISA statutes is to enable the government to gather foreign intelligence, and not to pursue criminal prosecutions. In that context, I am much less troubled about the prospect of the government being able to use the information for intelligence purposes, notwithstanding any ultimate ruling by the courts on the validity of the government’s application.

The third technical problem concerns the provision in the new statute prohibiting "reverse targeting" of U.S. persons. Opponents of the statute contend that this provision lacks sufficient "teeth". I'm not sure that I understand this argument, as the new statute clearly empowers the FISA court to review "targeting procedures" so as to prevent the intentional acquisition of communications occurring wholly within the U.S.

The Problem of Telcom Immunity

As emphasized previously, the problem of telcom immunity arises only because the Bush Administration chose to ignore both the FISA statute and the constitutional principle of separation of powers by conducting warrantless surveillance, instead of asking Congress to amend the FISA statute. Numerous telecommunications companies acceded to the Bush Administration’s requests for assistance in this venture. The legal status of these companies is now at issue.

FISA includes a provision stating that any “person” who engages in a violation of FISA is, in addition to facing potential criminal liability, civilly liable to anyone whose communications were wrongfully intercepted. The amount of the liability is the greater of the plaintiff’s actual damages, or liquidated damages of $1,000 or $100 for each day of unlawful surveillance.

It should be noted that FISA states that any “person” may be held civilly liable; the statute does not authorize lawsuits against the government itself. Civil suits against the government are generally barred by the doctrine of “sovereign immunity”, unless there is a specific statute authorizing such a lawsuit, and as noted, there is no such authorization in FISA.

FISA suits may, however, be brought against individual government officials who participated in any surveillance in violation of FISA, potentially including Bush himself. Many such suits have in fact been filed. There is nothing in the new FISA statute that would change this, so the potential for suing Bush, Cheney, et al., still exists. Most such lawsuits have thus far been unsuccessful because of the plaintiff’s inability to prove “standing”, i.e., showing that the plaintiff was in fact the target of warrantless surveillance.

Numerous lawsuits have also been filed against telecommunications companies. Presumably, these lawsuits would face the same standing hurdle that has thus far doomed lawsuits filed against government officials. I therefore fail to understand the claim of FISA opponents such as the ACLU that telcom immunity is part of the Bush Administration's "cover-up", and that suits against telecommunications companies are the only way we can pursue this matter in the courts and get to the truth. If a plaintiff can prove standing, he or she can still sue responsible government officials, and if the plaintiff cannot prove standing, then a lawsuit against a telecommunication company will be no more viable than a lawsuit against a government official.

Assuming, however, that the standing obstacle could somehow be overcome, there is another issue that is raised by lawsuits against telecommunications companies, and that is what leads to the thorny issue of telcom immunity. As noted, you can’t sue the government for violating FISA because of the doctrine of sovereign immunity. There is a related legal doctrine known as “private contractor immunity” which holds that when a private party acts at the behest of the government in carrying out a governmental function, then the private party is also immune from suit by an extension of sovereign immunity. The private contractor immunity doctrine is quite controversial, and it is not clear-cut that that the doctrine would apply to a suit against a telecommunications company that participated in a violation of FISA. However, the concern of the telecommunications companies is that they would not even have an opportunity to raise the issue, and therefore could not get a fair hearing in a civil lawsuit.

The reason for this is the continuing secrecy that has cloaked the Bush Administration’s warrantless surveillance program. Indeed, to date, the Bush Administration has not even officially admitted that the program existed. Thus, the fear of the telecommunications companies is that if they raised the defense of private contractor immunity, the Bush Administration would refuse to provide any information in court that might show what the companies did and why they did it. The result could well be that the telecommunications would be denied the opportunity to raise the defense of private contractor immunity, not because the defense lacks merit, but simply because of the Bush Administration’s refusal to provide any information about the warrantless surveillance program. While many liberals may not be very concerned about fairness to telecommunications companies, a fair-minded view of the situation would have to concede that these companies do have a point in raising the issue of the need for some form of civil immunity.

The new FISA statute deals with the issue in a compromise fashion, although opponents of the statute prefer to categorize this as a capitulation to the demands of the Bush Administration and the telecommunications companies. Under the new statute, lawsuits against telecommunications companies for assisting in warrantless surveillance during the period from September 11, 2001 to January 17, 2007 will be dismissed if the Attorney General files a certification stating that the assistance provided by the company was done pursuant to a written directive from the President, and that the purpose of the interception was to prevent a terrorist attack against the U.S. The court in which the lawsuit is pending is empowered to conduct discovery and require the production of additional information from the government in order to determine whether or not the certification is in fact supported by substantial evidence.

Obama’s position was that the telcom immunity provision should have been deleted, or at least held in abeyance, until we know more about what actually occurred in Bush’s warrantless surveillance program. Granting any form of immunity now seems like “buying a pig in a poke”. Notably, in one of the highly salutary provisions of the new statute, the offices of the Inspector General of the Department of Justice, Department of Defense, Director of National Intelligence, and National Security Agency, are required to submit reports to Congress concerning the nature and scope of Bush’s warrantless surveillance program. One of the unsuccessful amendments to the new statute supported by Obama and others would have delayed the effectiveness of the telcom immunity provision until after the completion of these reports.

Given the intransigence of the Bush Administration and the Congressional Republicans in supporting telcom immunity, Obama made the correct call in determining that the shortcomings in the immunity provision do not provide a sufficient reason for voting against the statute. My reasoning is as follows:

First, there is no reason to view the certification procedure set forth in the telcom immunity provision as a meaningless exercise. Immunity will be granted only if a court determines that there is substantial evidence establishing that the company acted at the specific written directive of the President, and that the purpose of the interception was to prevent a terrorist attack against the U.S. Under this provision, some measure of judicial scrutiny will be brought into the process, and immunity will not be given out on a wholesale basis. Most importantly, immunity will not be available in any case in which the surveillance was conducted for improper or political purposes, unrelated to the prevention of a terrorist attack against the U.S.

Second, if Obama becomes President, there is no reason why he cannot authorize full disclosure of the extent of wrongdoing committed by the Bush Administration in conducting warrantless surveillance. Specifically, there is no reason why Obama cannot disclose the identities of any persons whose communications were wrongfully intercepted. Such persons could then readily establish standing to bring suits against individual officials in the Bush Administration. As noted, the new FISA statute does not grant immunity, civil or criminal, to officials of the Bush Administration who participated in violations of FISA.

Stop Dumping On Obama

In sum, the enactment of the new FISA statute does not mean that the constitution is dead. Nor does it mean that Obama is a dishonest politician unworthy of our support. On the contrary, Obama’s well thought-out position on the new FISA statute indicates to me that he is a careful legislator, capable of understanding important nuances, fully cognizant of the fact that compromise is the essence of the democracy.

A reader may wonder why any credence should be paid to what I have to say on this issue, when constitutional “experts” such as Professor Turley and the ACLU have been so vehement in their opposition to the new FISA statute. Notably, Morton Halperin, a well-known civil libertarian who was himself the target of unlawful warrantless surveillance during the Nixon Administration, has spoken publicly in favor of the new statute. http://www.nytimes.com/2008/07/08/opinion/08halperin.html?_r=1&em&ex=1215662400&en=0686287e0ee393f0&ei=5087%0A&oref=slogin The ACLU has a particular view about constitutional law, a view that, for the most part, has never been accepted by the Supreme Court or any other court, and is well outside of the mainstream of constitutional analysis. In this regard, it should be emphasized that the ACLU opposed such widely-supported security measures as airport inspection procedures. The ACLU also opposed the old FISA statute, which it also believes to be unconstitutional.

Civil libertarians are fond of quoting Benjamin Franklin’s aphorism that “those who would exchange liberty for security deserve neither.” In considering how much weight to give to that remark, I am tempted to quote a line from the song that Benjamin Franklin’s character sings in the musical “1776”:

“The things I write, are only light, extemporanea.”

While Franklin's quip is a useful reminder of the need to protect constitutional rights in times of national emergencies, it is, in many ways, better suited to being used as a bumper sticker rather than a foolproof guide to public policy. In fact, we balance personal liberty against public safety all the time: when we require airline passengers to permit their persons and belongings to be searched, or for that matter, when we require all Americans to file accurate tax returns laying bare the details of their financial lives. Life is more complicated than is imagined by the ACLU and its supporters.

So, I would urge liberals to calm down. Stop, think, and remember: we have a unique opportunity this year to elect a new President who is really, really special.