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The story of what historians call the second cold war often begins with the Soviet invasion of Afghanistan in December 1979, which shocked Americans into their own overreaction in Central America and Africa, as well as into arming the mujahedeen resistance. Today, it is a truth universally acknowledged in the punditocracy that while the United States may have played an indirect role in the creation of the Taliban and perhaps even the bin Laden terrorist network through our support for the radical Islamic guerrillas in Afghanistan, we did so only in response to that act of Soviet aggression. As Tim Russert explained on Meet the Press, "We had little choice." Speaking on CNN, former US Ambassador to Afghanistan Peter Tomsen speaks of our "successful policy with the ordnance we sent to the mujahedeen to defeat the Soviets." Writing on "The 'Blowback' Myth" in The Weekly Standard, one Thomas Henriksen of the Hoover Institution rehearses the Soviet invasion and then notes, "First President Carter, then, more decisively, Ronald Reagan moved to support the Afghan resistance."

The truth is that the United States began a program of covert aid to the Afghan guerrillas six months before the Soviets invaded.

First revealed by former Director of Central Intelligence Robert Gates in his 1996 memoir From the Shadows, the $500 million in nonlethal aid was designed to counter the billions the Soviets were pouring into the puppet regime they had installed in Kabul. Some on the American side were willing--perhaps even eager--to lure the Soviets into a Vietnam-like entanglement. Others viewed the program as a way of destabilizing the puppet government and countering the Soviets, whose undeniable aggression in the area was helping to reheat the cold war to a dangerous boil.

According to Gates's recounting, a key meeting took place on March 30, 1979. Under Secretary of Defense Walter Slocumbe wondered aloud whether "there was value in keeping the Afghan insurgency going, 'sucking the Soviets into a Vietnamese quagmire.'" Arnold Horelick, CIA Soviet expert, warned that this was just what we could expect. In a 1998 conversation with Le Nouvel Observateur, former National Security Adviser Zbigniew Brzezinski admitted, "We didn't push the Russians to intervene, but we knowingly increased the probability that they would."

Yet Carter, who signed the finding authorizing the covert program on July 3, 1979, today explains that it was definitely "not my intention" to inspire a Soviet invasion. Cyrus Vance, who was then Secretary of State, is not well enough to be interviewed, but his close aide Marshall Shulman insists that the State Department worked hard to dissuade the Soviets from invading and would never have undertaken a program to encourage it, though he says he was unaware of the covert program at the time. Indeed, Vance hardly seems to be represented at all in Gates's recounting, although Brzezinski doubts that Carter would have approved the aid unless Vance "approved, however unenthusiastically."

No one I interviewed--those who did not mind the idea of a Soviet invasion, and those who sought to avoid it--argues that Carter himself wished to provoke one. Gates, who was then an aide to Brzezinski, says the President did not think "strategically" in that fashion. "He was simply reacting to everything the Soviets were doing in that part of the world and felt it required some kind of response. This was it." Brzezinski, similarly, says he did not sell the plan to Carter on these terms. The President understood, he explained on the phone, that "the Soviets had engineered a Communist coup and they were providing direct assistance in Kabul. We were facing a serious crisis in Iran, and the entire Persian Gulf was at stake. In that context, giving some money to the mujahedeen seemed justified." Why Carter actually approved the aid remains unclear, however. Carter, it should be added, does not seem to remember much about the initial finding. Otherwise, he would not have asked his aide to fax me the pages from his memoir Keeping Faith, which ignores it entirely, and like the rest of the pre-Gates memoirs of the period, professes great shock and horror regarding the onset of the Soviet tanks.

The news of the covert program has provoked considerable confusion among those who seek to blame the United States for the September 11 massacre. Proponents of an overly schematic "blowback" scenario, including at least one vocal supporter of the Soviet "rape" of Afghanistan, have seized Brzezinski's comments to claim that Osama bin Laden is merely one of America's "chickens coming home to roost." This is both simplistic and obscene. Blowback exists in absolutely every aspect of life, because nothing comes without unintended consequences. Does it make sense to blame the destruction of the World Trade Center on a $500 million nonlethal aid program that took place more than twenty years ago? We cannot even know for certain why the Soviets decided on their invasion.

Nor can we ever know for certain whether the US officials wished to inspire one. Memories deceive, records get destroyed and even original documents can be written to be deliberately misleading, as were the period's official memoirs--save, ironically, that of Gates, the former spymaster. The covert action was undoubtedly approved by those involved for a host of reasons, some of which may be contradictory. Helping the Afghans resist Soviet domination was not exactly a controversial policy in 1979, though no one at the time could even dream that it might lead to the evil empire's eventual disintegration.

Brzezinski argues that even given the 20/20 hindsight after September 11, the covert aid remains justified. He shares the common view that America's most significant mistake was to abandon the nation to its unhappy fate following the Soviet withdrawal. Our terrorist problem, he insists, would be much worse with the Soviets still around to support their terrorist minions among the Palestinians, the Syrians, the Libyans, the Iraqis, etc.

Certainly this is much too kind to the Reagan-era military aid to Taliban-like elements. But a more accurate historical record can only lead to more intelligent debate about the future.

Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit is an intellectual force to be reckoned with. The author, seemingly, of more books written while in active judicial service than many judges are of opinions, he can lay claim to the title of pre-eminent judicial theorist of our time. Nor are his opinions to be lightly dismissed as those of a right-leaning conservative in thrall to the Republican Party. His application of the precepts of the Chicago school of law and economics has led him, for instance, to endorse the right of gays to marry. More recently, he produced a review of the Lewinsky scandal in which he wisely found plenty of fault to go around for all the participants in the sorry spectacle--the President, the independent counsel, the leaders of the impeachment drive in Congress and, not least, the Supreme Court, for its naïve denial of executive privilege in Clinton v. Jones, which set the scene for much that followed. Judge Posner's wide-ranging intellectual curiosity has produced such treasures as an eviscerating look at Janet Malcolm's The Crime of Sheila McGough--a review for which Judge Posner read not only the book but also the transcript of the criminal trial that is the book's subject.

On the subject of Bush v. Gore, Judge Posner's efforts must be counted only partially successful. In the ten months since the Supreme Court settled the 2000 presidential election, the legal and academic community has weighed in with dozens of critical reviews. By and large, they haven't been favorable. The epithets include lawless, posturing, disgraceful, illegitimate, unprincipled, outrageous, partisan, incomprehensible. But Posner has come up with a qualified defense of the Supreme Court's actions in Breaking the Deadlock. Although he makes a fair case that the Florida Supreme Court manhandled the state's election statutes, his effort to justify the US Supreme Court's one-two punch--its December 9, 2000, stay of the Florida court's order directing manual recounts and its December 12 decision to overturn that order at the expiration of the "safe harbor" period, with no remand for further proceedings--fails to persuade.

Judge Posner's ultimate justification--that the Court saved us from ourselves or, more precisely, from the provisions for presidential elections prescribed by the Constitution and enabling acts of Congress--hints at an abandonment of the rule of law in the face of circumstances that were nowhere near as exigent as he suggests.


In order to accord Judge Posner's analysis the fair hearing it is due, we must begin with a recapitulation of the underlying legal events. Two rounds of litigation are at the heart of the story. The first of these originated under the Florida elections code as a protest proceeding brought by the Gore camp to demand a manual recount in four counties after Katherine Harris, the Secretary of State, had certified a victory for Governor Bush. The basis of Harris's administrative action was a statutorily mandated automated recount, triggered by the neck-and-neck tally upon the close of the polls, that showed Governor Bush in the lead by 327 votes out of the nearly 6 million cast in the state.

On November 21, 2000, in a judicial-review proceeding brought in the trial court in Tallahassee to challenge the secretary's ruling, the Florida Supreme Court held unanimously that a discrepancy between the machine count and a subsequent hand count amounted to an error in vote tabulation warranting a full manual recount and that the controlling Florida election statutes were in internal conflict on two critical issues: (1) the open-ended date for completion of a manual recount requested by a candidate under Florida statute § 102.166 could not be reconciled with the seven days after the election mandated under §§ 102.111 and 102.112 for submission of the completed count to state officials; and (2) the mandate in § 102.111 that the state electoral officials shall ignore late-filed county returns could not be reconciled with the permission in § 102.112 that they may do so. The Florida court concluded that in order to give effect to the county boards' authority to undertake properly demanded manual recounts, the secretary must accept returns filed before the close of business on November 26--in effect, a twelve-day extension of the statutory deadline.

On December 4, 2000, the US Supreme Court unanimously vacated the Florida court's judgment and remanded the case for clarification of the extent (if any) to which the state court had considered the impact of two provisions of federal law. The first of those provisions was the appointments clause of the Constitution, which sets out, in pertinent part, that each state shall appoint its presidential electors in such manner as the legislature thereof may direct. The second was a so-called safe-harbor statute, adopted as part of the Electoral Count Act after the Hayes-Tilden dispute in 1876 and codified as 3 USC § 5. That statute accords preclusive effect to a state's appointment of presidential electors--so long as (1) they are appointed pursuant to a law in place before the date fixed for their appointment and (2) their identities are determined by resolution of any resultant electoral contest at least six days before the date prescribed for the vote of the Electoral College. Because the Florida legislature (like the legislature of every other state) had delegated to the voters of the state the selection of the presidential electors in a statute enacted well before November 7, 2000, and because the date fixed by federal law for the vote of the Electoral College was December 18, all hands agreed that if Florida were to avail itself of the safe-harbor provision, the state's electors must be those chosen by the electorate on Election Day and identified by December 12. On December 11, 2000, the Florida Supreme Court filed its opinion following remand, giving consideration to the foregoing federal provisions and reinstating its prior determination.

The second round of litigation pertinent to Judge Posner's analysis commenced after the Florida counties, with varying degrees of success in meeting the judicially fashioned deadline of November 26, certified their results--or, in the case of Miami-Dade County, which gave up on the manual recount midway through the process, their nonresults--to the Secretary of State. On November 26, following the expiration of the twelve-day grace period provided by the Florida Supreme Court in its first decision, Secretary Harris again certified Governor Bush as the winner, this time with a lead of 537 in the popular vote.

These administrative actions precipitated a contest proceeding under Florida statute §102.168, instituted as a civil action in the trial court in Tallahassee, brought by the Gore camp. After a two-day trial, Judge N. Sanders Sauls denied all relief, and the parties again repaired to the Florida Supreme Court. On December 8, the Florida high court, badly divided, reversed the trial court's judgment. A bare majority of four justices held that the trial court had improperly deferred to the judgment of the administrative bodies that had conducted and overseen the recount; that the lower court had erred in refusing (1) to examine at all some 9,000 ballots that had registered no votes (so-called undervotes) in the presidential contest in Miami-Dade County when counted by machine and (2) to order that the election officials include in the final tally those votes for Gore and Bush, determined (1) by the Miami-Dade canvassing board before it gave up on its manual recount (with a net gain of 168 for Gore) and (2) by comparably determined votes in Palm Beach County (with a further net gain of 215 votes for Gore--or maybe 176, depending on whose count one accepted).

The Florida Supreme Court ordered an immediate resumption of the manual recount of the undervotes, to be supervised by the trial court in Tallahassee (before which disputed ballots had been transported), not just for Miami-Dade but throughout all counties in the state that had reported, but had not previously attempted to tabulate, undervoted ballots. The standard by which the manual counters were to ascertain the proper disposition of these undervotes, said the majority, was the "intent of the voter."

On December 9, a Saturday, the US Supreme Court, on petition of the Bush camp, stayed the Florida Supreme Court's judgment--and thereby the manual recount, then in progress--pending disposition of Governor Bush's petition for review, which was granted and set for oral argument on the following Monday. The Supreme Court's vote to stop the recount was 5 to 4.

On December 12, with only a few hours left before the expiration of the safe-harbor provided by 3 USC § 5, the Supreme Court rendered its final pronouncement in the case. Seven Justices--all but Justices Stevens and Ginsburg--thought that the absence of any standard imparted by the majority of the Florida high court to the manual recounters more informative than that they should "strive to ascertain the intent of the voter" implicated the equal protection clause or otherwise raised questions of fundamental fairness. Five of the seven Justices--excluding Justices Souter and Breyer--concluded that those constitutional concerns warranted reversal of the Florida court's judgment ordering the manual recount. The five-Justice majority brooked no remand to the state court for another stab at a definition of the intent-of-the-voter standard, on the theory that the impending expiration of the safe-harbor period had put an end to the controversy. Three of the five Justices--Chief Justice Rehnquist and Justices Scalia and Thomas--would have held additionally that various aspects of the Florida court's rulings concerning the interplay of the statutes making up the Florida electoral regime had violated the appointments clause. The blaze of dissents filed by Justices Stevens, Souter, Ginsburg and Breyer--each writing an opinion and joining variously in those of the other dissenters--suggested that at one point in the High Court's deliberations, the Chief Justice's opinion had commanded the support of a larger majority or had appeared imminently likely to do so.

This abbreviated summary does not address the litigation arising from unpostmarked absentee ballots from abroad (where, as the New York Times later demonstrated, different counties applied irreconcilably divergent standards), partisan assistance to would-be absentee voters on the part of some elections officials and the like; but the foregoing account suffices to set the stage for Judge Posner's review.


Judge Posner's book is more than a lawyerly review of Bush v. Gore, although it certainly qualifies as that. In significant part, the book is a discourse on political philosophy, focused upon the role of general elections in the operation of a representative democracy. (They are a good thing, Judge Posner concludes, but not an end unto themselves.) The book is also a display of Judge Posner's statistical erudition, replete with regression analyses of the Florida vote designed to demonstrate that factors such as voter error, illiteracy, income and race correlated more strongly with the rate of spoiled ballots in the 2000 election than did the factor of voting-machine failure.

Given the impact of antiquated punchcard mechanics on the outcome of the 2000 election, some observers might wonder whether the profound differences in the administration of Florida's electoral system by the various counties around the state smacked of a federal constitutional problem. Some might even detect a hint of state-sponsored or -condoned discrimination, rising to the level of a denial of equal protection. That hint of illegality might ripen to a strong suspicion upon a showing that urban dwellers generally, blacks and Hispanics, and less well educated people suffered a diminution in the effectiveness of their vote because their ballots were disproportionately subject to disqualification in the punch-card voting process--precisely the showing that can be found in Judge Posner's statistical analyses. Moreover, Posner recognizes, the disparities in voter accuracy attributable to divergent voting systems have long been known, though not well publicized.

The discovery that county-to-county differences in Florida's voting systems resulted in real-world consequences leads Judge Posner ultimately to conclude that replacement of punch-card technology throughout the country would be a good policy prescription. But before he gets to that point, he explores, at least implicitly, the question of whether universal suffrage is a good idea. He concludes that it is, but only after considerable soul-searching about its consequences for the conduct of elections. "It would not be surprising," he says in commenting on the makeup of the voters who cast spoiled ballots, "if a large fraction of the votes...had been cast by undecided, confused, clumsy, illiterate or semiliterate, or inexperienced (first time) voters." Moreover, he surmises, the incompetent voters who spoiled their ballots in all likelihood were predominantly Democratic. His regression analyses persuade him that the punch-card ballot and county counting (rather than at the precinct level, where a watcher might catch spoiled ballots in time for voters to correct them), together with the correlated factors of low literacy, low income and being black, had a significant effect in increasing the frequency of spoiled votes. It may be all right to extend the franchise to people who cannot read, he concludes, but some conservatives may think it "rather an excess of democracy for illiterates to hold the electoral balance of power." These are hardly the musings of a Jacksonian democrat.

Judge Posner acknowledges that "if punchcard technology had been replaced throughout Florida by marksense technology [i.e., by optical-scanning equipment], if all votes had been counted at the precinct level, if the butterfly ballot had not been used in Palm Beach County...and if the polling places had been better staffed and party activists had instructed their voters more carefully, it is quite likely that Gore would have won the popular vote in Florida on November 7 and thus would have become President without any recounting or litigation." If just one of these fortuities had broken Gore's way, he might be President. But if wishes were horses, beggars would ride.

Judge Posner adroitly harpoons the Florida Supreme Court, as have other commentators, on its extension of the seven-day limit on challenges to county certifications by a dozen days, from November 14 to November 26. Beyond that brazen act of judicial legislation, the Florida court's action had the effect, no doubt unintended at the time, of foreshortening the period for the contest phase of the postelection proceeding--but only because the Florida court proceeded from the premise that the electoral controversy must be resolved by the safe-harbor date of December 12 in order to insure that Florida's electoral votes would count in the Electoral College. That premise proved the undoing of the Florida court's efforts--and of Gore's candidacy--when the Supreme Court ultimately brought the election controversy to a close.

Judge Posner is no less kind--nor need he be--in addressing the Florida Supreme Court's second decision, following the trial of the election contest before Judge Sauls. On the first round, the Florida high court had treated the county canvassing determinations challenged in the protest phase, leading to the Secretary of State's certification of a winner, as of sufficient importance to justify, on equitable grounds, a twelve-day enlargement of the recount period unambiguously prescribed by the legislature. Now, the Florida court decreed, it was error for the trial court to have deferred to the Secretary of State's administrative judgment at all. Instead, it would be necessary, upon remand, for the trial judge to oversee the manual counting of undervoted ballots--not just from those counties contested by Gore but from all over the state. Even though the proofs before Judge Sauls had shown that Miami-Dade and Palm Beach counties had employed variant and inconsistent standards in examining the ballots rejected by the machines, the trial judge on remand was given no guidance other than that he should discern the intent of the voter from the thousands of ballots to be examined by hand. To accomplish this heroic task while providing for judicial review within the time allotted before December 12, the drop-dead date so far as the federal safe harbor was concerned, plainly was impossible.

Most fundamentally, Judge Posner contends, the Florida Supreme Court erred at the outset, when it embarked on a re-examination of the automatic recount run by the machines. The justification for launching a countywide manual recount under the Florida statutory regime, we have seen, resides in an error in the tabulation of the votes--their counting, not their casting. A voter error in spoiling a ballot, rendering it uncounted by the machine, would not, on Judge Posner's reading of the statute, constitute an error in tabulation. This is essentially the analysis, adopted early in the electoral dispute, by the Florida elections office overseen by Secretary Harris. In Judge Posner's view, not only was this decision correct but the Florida courts should have deferred to it as an exercise of the administrator's interpretation of the statutes whose workings she is empowered to supervise.

Because this is the linchpin of Judge Posner's attack on the Florida Supreme Court, we should pause to consider its basis and implications. The governing statutory provision, found in Florida statute § 102.166(5), stipulates that, upon the losing candidate's timely written request for a manual recount, the county canvassing board may undertake the recount (among three prescribed remedies, of which we shall have more to say in a moment) where a sample recount indicates an error in the vote tabulation that could affect the outcome of the election. Without doubt, there had been errors, and they could have affected the outcome, but were they errors in the "vote tabulation"? The phrase, notwithstanding Judge Posner, is not self-defining. It may, or may not, mean the same thing as the vote tabulation system--in other words, the machinery by which the ballots, once marked, are counted. The Florida court thought that the two phrases did not mean the same thing, and the court's reasoning is not beyond the pale. Elsewhere in the very same section of the election code, the court noted, the legislature had used the phrase "vote tabulation system and automatic tabulating equipment." Specifically, the legislature said, the county board could take remedial steps "if the [sample] recount indicate[d] an error in the vote tabulation." The first of these was to recount all remaining precincts using the vote tabulation system; the second, to request that state officials verify the tabulation software; the third, to undertake a manual recount of all ballots. There would be no point in undertaking the sample manual recount if the only problem that warranted fixing was a problem with the machines--the board was empowered to look at the sample handcount to spot a difference from the machine count, whatever its source. This approach to the statute makes particularly good sense if, as Judge Posner says, problems with the machine count of punch-card ballots are a known factor but the cost of replacing punch-card systems is prohibitive.

It is an accepted canon of statutory interpretation, with which Judge Posner surely is familiar, that when the legislature uses one phrase in one place in a statute and another, different phrase in another place in the same statute, each phrase should be accorded meaning, and it cannot be assumed that the two phrases mean the same thing, as though the legislature had used the same words twice. There is no presumption that legislators are sloppy when they write statutes, any more than that judges are sloppy when they write opinions.

This does not mean that Judge Posner's interpretation is wrong. He might be right, and his reasoning might be better than that of the Florida Supreme Court. But it seems wrong of him to conclude that the Florida court was so obviously off-base that the US Supreme Court was within bounds to reject the Florida court's reading of Florida law. And it is doubly wrong to treat the question of interpretation of the Florida statute as a de novo question, rather than as one subject to some level of deference when the question came before the US Supreme Court--a point to which we shall revert when we consider Judge Posner's treatment of the Supreme Court's decision on the second and final round.

A statutory phrase is to be read not in isolation, as though it were a snippet justifiably torn from its context, but with reference to its policy objectives. Often those objectives are illuminated by companion provisions in the same statute. In the Florida election code, just two paragraphs down from the tabulation provision, appears a directive to the canvassing boards that in conducting their manual recounts, they are to strive to ascertain the intent of the voters (Florida statute § 102.166[7]). That language provides a further basis to believe that the legislature chose not to rest the electoral process entirely with machines but to provide a safety valve of manual recounting in aid of discerning the will of the electorate where the boards found an error in the tabulation.

Further evidence of the legislative intent is found in Florida statute § 101.5614, an omnibus provision that instructs the canvassing boards how to deal with spoiled votes of every kind--electronic or electromechanical, ballot cards, ballots with and without the office up for election printed directly on them. In the case of ballot cards damaged or defective so that they cannot properly be counted by the automatic tabulating equipment, subdivision (5) specifies: "No [such] vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board." That provision surely looks like a prescription for remedial measures where the counting machinery, for whatever reason, has failed to tabulate a ballot for which the voter's intent is clear.

That is not the lesson drawn by Judge Posner. To the contrary, he argues,

To classify a "failure" that is built into the design of the tabulating machinery [such as the failure to count punchcard ballots not properly cleared of chads] as an error or defect in the tabulation of the vote would make hand recounts mandatory throughout most of the state in all close elections--something the election statute cannot reasonably be read to contemplate.

As if to insure that the point is not lost, Judge Posner reiterates: "Hand recounts in close elections would become the rule rather than the exception. This is all upside down."

These remarks mirror the observation of Chief Justice Rehnquist, in his concurring opinion in the second and final round before the Supreme Court, that it would be "absurd" to attribute to the Florida legislature the design of counting by hand when the election is close because the machines could be counted upon to miss lawful ballots. This is strange thinking. Hand recounts, however unattractive, might be seen as necessary to insure fidelity to the popular will--the position that seems to be what the legislature spelled out in the statutes governing the count.

Attributing primary significance to capturing every ballot where the will of the voter may be discerned presupposes that elections have an importance unto themselves. Judge Posner, as political philosopher, tells us that we should not think of elections in that fashion. They are but a means to an end, rather than an end in themselves: "Elections are part of the framework and so belong to the domain of formal justice," says Judge Posner. "They are not actualizations of the popular will." This is a rather bloodless way of viewing the process that imparts legitimacy to elected officials and, through them, to our representative form of government.

Whatever the weaknesses in his argument, Judge Posner is far better at demolishing the work of the Florida court than he is at upholding that of the US Supreme Court. He acknowledges that the equal-protection argument that persuaded a bare majority of five Justices (and possibly two others besides, who voiced concern about the unfairness of the standardless recount and joined in the per curiam opinion announcing the reversal of the Florida court's order) was not a persuasive ground. He would have been hard-pressed to come to a different conclusion. For starters, Governor Bush had no standing to complain of an equal-protection violation: He was not a Florida voter, but at best the beneficiary of those Florida citizens who had voted for him. (Judge Posner does not mention this point, although he is quick to point out that Gore lacked standing in the lawsuit that his camp brought.) The standing of the citizens who had voted for Bush was better, but not by much. Those of them who might have attempted to cast a ballot for Bush but who had spoiled it by failing to detach the chads hardly could be heard to complain that their votes now might be counted. Those who had marked their ballots properly might fear the dilution of their voting strength, however infinitesimally, by the inclusion of spoiled ballots on the manual recount, but there was no way of knowing ex ante which candidate would have benefited from that recount. For all that appeared at the time, and for all we know today, a manual recount would have solidified Bush's position as the leader in the popular vote.

More fundamentally, there was no suggestion that a recount based on the "intent of the voter" standard would work a systemic, deliberate discrimination against a discrete, insular minority, whether blacks (as in poll-tax cases), illiterates (as in literacy cases) or urban dwellers (as in reapportionment cases). One might well ask: Where was the invidiousness that is the hallmark of a denial of equal protection? There was none, as Judge Posner notes when he considers the disparate impact of the use of punch-card technology and accordingly passes over the suggestion that the voting regime itself worked a large-scale denial of equal protection, as against those voters whose spoiled ballots the counting machines did not tally.

The difference in voting accuracy achieved by the various counties in Florida might well have been deemed a denial of equal protection. In that sense, the Florida voting system, as applied, was not "an innocent law that just happen[ed] to have an unequal impact." Judge Posner does not address this possibility.

A better argument, Judge Posner thinks, is the one that drew only three Justices--that the Florida Supreme Court had so altered the legislative scheme enacted by the Florida legislature for the selection of the state's electors that the lower court had violated the appointments clause (the mandate of the federal Constitution that the presidential electors be chosen in the manner directed by the legislature). Strangely, Judge Posner does not delve into this argument much, although he makes plain that he would have favored a reversal of the lower court's decision on appointments-clause grounds rather than equal-protection grounds if those had been the only options.

We need not resort to extravagant hypotheticals to test the appointments-clause argument. We have seen that Judge Posner rests his criticism of the Florida Supreme Court--not exclusively, by any means, but to a considerable degree--on that court's interpretation of the word "tabulation" in one section of the Florida election statutes. We have also seen that the Florida court's interpretation of this word was not so far-fetched as to warrant the conclusion that the court was wrong, not even on de novo review. But de novo was the standard that the three concurring Justices of the US Supreme Court seemed to use. They decided for themselves what the Florida statute meant, without any intimation that they had deferred to the Florida court's reading or that they ought to do so. Yet, ordinarily, federal courts yield to a state court's determination of what a state statute means. Perhaps a state court could not be allowed to say that black means white, but surely it could say that salmon means pink. The Florida court's reading of the "tabulation" phrase looks a lot more like salmon/pink than black/white.

The argument in support of the US Supreme Court's decision that most attracts Judge Posner is one never made by the Court at all--and for obvious reasons. The argument, at its nub, is that if the Court had not acted on December 12 to cut off the election dispute, the controversy could have spilled over into the New Year, with resultant chaos. This argument, which we may term the Louis XIV thesis (après moi, le déluge), is portrayed in a parade of horribles: two competing electoral slates from Florida; Congressional and judicial challenges to one or both of them; a political uproar in the House; a Senate evenly divided between the Republicans and Democrats; and the prospect of an acting President--Dennis Hastert (who might decline the honor rather than give up the House Speakership), Strom Thurmond (who might well be oblivious of his surroundings), Madeleine Albright (probably ineligible because not native-born), or Lawrence Summers, as holdover Secretary of the Treasury (our first Jewish President, pace Joe Lieberman).

This conjures an impressive parade of improbabilities, but a break in the chain at any point would have brought the parade to an end. The mechanics of the manual recount likely would have caused the process to collapse in a matter of days. If the contest had gone forward, the Republican-controlled legislature in Florida would have nominated a slate of electors. The Governor (Bush's brother) and the Secretary of State (who had participated actively in his campaign) would have lent their approval, fulminations of the Florida courts to the contrary notwithstanding. In so doing, the legislature would have given up the federal safe harbor, because the legislators would have selected the presidential electors under the aegis of a law (or resolution) enacted after the general election; but that would mean only that under the Electoral Count Act, somebody in Congress might challenge the Florida electors when it came time to open the envelopes. That challenge would require the concurrence of a majority of both the House and the Senate, with the former body controlled by the Republicans and the latter evenly divided between the parties.

All this presupposes a vote count trending in Gore's favor. Given the closeness of the vote as tabulated and the uncertainty of the spoiled ballots that remained, it is of roughly equal possibility that Bush would have continued to lead in the recount by the time the dispute reached Congress. In that case, the Florida legislature would have been all the more likely to act in his favor and the Congress in Washington to have acquiesced. And Bush's election would have been buttressed by the widespread acceptance that he had won the vote in Florida, counted perhaps with less than perfect guarantees of accuracy and under trying circumstances, but counted.

Letting the electoral dispute go forward without judicial intervention would have had the advantage of giving effect to the Constitution--a goal that we like to think is favored by the Supreme Court. However rough and tumble the political process might be, the election of a President should be a political event, not the subject of judicial decision. If it is permissible to justify the Supreme Court's action on the ground that the five-Justice majority acted pragmatically, albeit without legal justification, to save the country from possible political turmoil, it should be equally permissible to justify a renegade Army general surrounding the Capitol with troops to enforce a presidential selection, on just the same reasoning.

It is the political nature of the controversy, as well as the untested provisions of the Electoral Count Act and related statutes, that lead Judge Posner to surmise that if the contending factions had petitioned the Supreme Court for review during this cavalcade of tumultuous events, the Court likely would have turned such requests aside on grounds that they presented a political question. But if the Court properly could have left the country high and dry in January 2001, it is hard to understand why the Court would not have done even better to forswear its involvement in December 2000, when so many additional options were available short of judicial intervention. Judge Posner's appeal to pragmatism as a justifiable, albeit unarticulated ground of decision seems less pragmatic than he would have us believe.

Posner's preference for judicial resolution is a sign of judicial elitism--a call for more judicial intervention, not less. His logic cannot be confined to the electoral process (where the prospect of continual judicial intervention is bad enough), but is sufficiently expansive to accommodate just about everything. If judges should take the heat off legislators in resolving electoral contests, perhaps they should do likewise in resolving other political hot potatoes as well.

The scariest of Judge Posner's deluge scenarios is that the controversy over the Florida electors might have forced the election of the President into the House of Representatives and of the Vice President into the Senate, neither Bush nor Gore having achieved a majority of the electors appointed by the several states. That scenario is not only anticipated in the Constitution; it describes a circumstance that the drafters of the Constitution expected would be more or less routine. The presidential electors, scattered among the several states, were directed to vote in their respective state capitals all on the same day. They were not to travel to the national capital to cast their ballots, nor were they to indulge in repeated ballots, like the political conventions or the papal elections, until a majority candidate emerged the winner. These restrictions provided a safeguard against coercion and bribery. The electors were to cast only one round of ballots, which was thought to be unlikely to produce a majority for any one candidate. The election then would go to the House, there to be decided with each state having one vote.

The constitutional process might be messy, and it might yield a late or unsatisfactory result, but it has the advantage of being the process prescribed by the Constitution. The Supreme Court Justices took an oath to uphold the Constitution, not to decide that its prescriptions are too risky. Judge Posner's prescription for the pragmatic point of view turns out to be profoundly undemocratic, and unconstitutional besides. Because the Court saved us from ourselves, he says, the decision passes muster, even though, he acknowledges, "there are respectable schools of jurisprudence according to which Bush v. Gore could be shown to be unprincipled, even usurpative." In the final analysis, this is a damning indictment of the decision that goes far to undermine Judge Posner's conclusion that the Court acted properly in pragmatic fashion.


Whatever the rights and wrongs of the Supreme Court's decision on the merits, there remain the issues posed by the Court's choice of remedies. Here Judge Posner is even more elliptical, and even less convincing, than in his defense of the Court's decision on the merits.

The remedies problem has two components--the stay of the manual recount ordered by five Justices on Saturday, December 9, and the judgment of reversal without remand, ordered by the same five Justices three days later, on Tuesday, December 12, at 10 pm Eastern time, two hours shy of the expiration of the safe-harbor period. If the Florida Supreme Court had erred in ordering a manual recount without providing adequate standards to the counters, the logical remedy would have been to reverse and remand with instructions to come up with a better standard. This was the point urged in dissent by Justices Souter and Breyer, who otherwise agreed with the five Justices in the majority that the absence of definition in the "intent of the voter" test had constitutional implications.

At the end of its opinion, the five-Justice majority dispensed with the notion that the case should be remanded for further proceedings. There was no time left for standards, the majority said; the safe harbor was about to expire. Judge Posner correctly notes the "gotcha" flavor to this argument. The Florida Supreme Court had intimated that the electoral dispute should be brought to an end by December 12 in order to insure that Florida's electors would vote in the Electoral College on December 18. But the Florida court had never said that such was the law in Florida. Certainly the legislature had never said so. Who knows what the court or the legislature might have said when confronted, on the one hand, with a looming deadline for the safe harbor and, on the other, with an imperative to count all the votes where the intent of the voter fairly could be discerned?

There is something ironic about the disposition of a case, founded in major part upon the criticism that the lower court had invented a law never enacted by its state's legislature, that rests for its remedy upon, well, the invention of a law never enacted by the legislature.

Judge Posner is dismissive of objections to the stay entered by the Court on December 9, the Saturday surprise that put paid to the manual recount and to Gore's chances. Because the Court stopped the recount for good only three days later, Judge Posner argues, the stay didn't matter much, and further, balancing the risk of harm to Bush with his case on the merits, the grant of the stay was not out of line. Judge Posner is wrong on both counts.

The stay mattered a great deal. It stopped the manual recount dead in its tracks while Bush led in the tally, and it precluded any likelihood that Gore might overtake him. If, as Judge Posner suggests, the five Justices who voted for the stay already had decided that Bush had a convincing case on the merits, the only point of the stay was to insulate their decision on the merits from whatever additional criticism would have flowed from Gore's having taken the lead in the recount in the interim between the Florida Supreme Court's order directing the manual recount and the Supreme Court's ultimate disposition.

The grant of a stay pending appeal, akin to the grant of a preliminary injunction in the trial court, is an extraordinary event. It presupposes some combination of likelihood of success on the merits, irreparable injury in the interim, a balance of advantage weighing in favor of the applicant and no adverse impact on the public interest. Bush's application for a stay met none of these criteria. On Judge Posner's own reasoning, the equal-protection argument was not meritorious, and the appointments-clause argument ultimately corralled only three votes. Whatever detriment Bush might have suffered if the recount continued was counterbalanced by the detriment to Gore if the recount was halted. The public surely had an interest in knowing the disposition of the spoiled ballots, rejected by the counting machines but readable by human beings.

Lacking in Bush's plea for interim injunctive relief was any sign of irreparable injury. Irreparable injury presupposes the unavailability of an adequate remedy at law. Bush had several adequate remedies at law--the ones prescribed under Florida statute, the Electoral Count Act and the Constitution. If he did not care for the results of the recount or the manner in which the recount was conducted, he could contest the inclusion of the votes before the Florida courts or in a fresh suit instituted in federal court. (He already had done that once, notwithstanding his supposed preference for state rather than federal resolution of state issues.) He could have petitioned the Florida legislature to appoint electors favorable to him (which the legislature surely would have done). He could have used the Republican Party's control of the House to block any effort to accept presidential electors from Florida pledged to Gore rather than to Bush. To the extent that the manual recount was a mess, his arguments before each of these forums would have looked pretty good.

Judge Posner does not touch upon the availability of an adequate remedy at law, perhaps because his chaos scenario rules out the notion that the panoply of legal remedies available to Bush was adequate to the occasion. Nor does Judge Posner have much to say for the majority's rationale in imposing the stay--a one-paragraph per curiam that announced the fact of the stay without an iota of explanation. This is a surprising lapse, given that the lower federal judges, to whom Bush had presented his equal-protection arguments, had declined to consider them precisely on the ground that Bush's injury was not irreparable.

It was left to Justice Scalia, speaking for himself, to offer a justification, which Judge Posner mildly critiques as possibly not the best work of which the Justice was capable but which Posner does not otherwise discuss. At the risk of prolonging this already overlong review, we should tarry a moment. Here is the operative passage from Justice Scalia's concurrence in the stay, with his points numbered for ease of reference:

[1] The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner [i.e., to Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. [2] Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires. [3] Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters' intent--dimpled chads, hanging chads, etc.--vary from county to county, as the Florida Supreme Court opinion, as interpreted by the Circuit Court, permits. [4] If petitioner is correct that counting in this fashion is unlawful, permitting the count to proceed on that erroneous basis will prevent an accurate recount from being conducted on a proper basis later, since it is generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate.

Not one of these arguments holds water. (1) If the spoiled ballots were illegal and if Florida law ultimately were held to bar their inclusion, a court could order that they not be counted. That is just what the Supreme Court did three days after the stay. In any event, Bush had no legally cognizable right to be free of clouds; he had only whatever legal right flowed from Secretary Harris's certification that he was the winner after the delayed recount on the protest phase ended on November 26. That certificate, without more, did not entitle him to an injunction of a proceeding, otherwise lawful, that might show the certificate to have been issued in error.

(2) Counting first and then setting the rules was an effective argument only if one assumed that no rules at all would be in place during and after the count. That was a doubtful proposition, given the presence of a trial-court judge overseeing the process in Tallahassee on remand from the Florida Supreme Court, and the availability of state and federal appellate review thereafter.

(3) The manual recount was not to be subject to the vagaries of county boards, although there had been vagaries aplenty in the manual recounts attempted to date. The Florida Supreme Court's order remanding the contest to Judge Lewis, with directions to oversee a recount, provided that the "intent of the voter" standard was to be applied, ultimately, by a single trial judge sitting in Tallahassee. That judge would have been capable of responding to an argument from Bush that different counties had counted spoiled ballots in different ways and of doing something about it.

(4) If the act of recounting destroyed the evidence, that destruction would be one more arrow in the quiver of whichever candidate--Gore or Bush--decided to challenge the outcome of the recount in the various venues provided under Florida and federal law. But the risk of alteration of the ballots provided no basis to halt the recount. Gore, as the party pressing for the recount, had taken his chances that a court ultimately might determine the process too rushed and uncertain to warrant judicial confidence, and then he would be out of luck if alteration of the evidence foreclosed a further manual recount.

So the stay was improvident at best, and reckless at worst. Judge Posner's diffident defense of it is a signal that the remedial aspect of the Supreme Court's handiwork was the least justifiable aspect of an already shaky product.


Some commentators think the Supreme Court's decision in Bush v. Gore ranks as the worst ever. Given the contenders for that crown, it's a tough call. As Alexander Bickel once famously said, with an active and ongoing institution, it's unwise to speak of rock bottom. Judge Posner is inclined to be more charitable: not the greatest reasoning in the world, perhaps, but better than a poke in the eye with a sharp stick.

To blame for the fuss, Posner thinks, is everybody but the five Justices in the majority: the four dissenters, who fouled their own nest by attacking the majority's reasoning; Gore, who commenced the legal proceedings (although Bush, he notes, was the first to file suit, and in a federal court at that); and a liberal-left law-school professoriate, whose self-serving policy preferences are exceeded, in Posner's view, only by its collective ignorance of constitutional law. The people, he is confident, will take the long view, if they haven't forgotten the case already. (Posner was writing before Bush became a wartime President.)

Judge Posner is not overly concerned that the Supreme Court's reputation will suffer as a consequence of its decision. In truth, the Supreme Court left no winners on the field. Vice President Gore lost, to a certainty. Governor Bush lost (even though he won), because the halt in the recount procured at his behest foreclosed any possibility that the recount might have proved him the winner (as several postelection reconstructions have suggested he would have been) and undermined his claim to be the legitimately as well as the legally elected President. The Court has done itself inestimable damage among the citizens of this country, who may be more interested in these matters than Judge Posner believes and who now will think twice before they regard the Supreme Court Justices as different in kind, rather than in degree, from self-acknowledged politicians.

Judge Posner has contributed a valuable and even indispensable work to the debate over the 2000 election. However, his book is unlikely to bring comfort to the reader that justice was done, either in the confines of judicial decision-making or in the larger spaces of presidential politics.

The left is getting itself tied up in knots about the Just War and the propriety of bombing Afghanistan. I suspect some are intimidated by laptop bombardiers and kindred bully boys handing out white feathers and snarling about "collaborators" and being "soft on fascism." A recent issue of The Nation carried earnest efforts by Richard Falk and an editorial writer to mark out "the relevant frameworks of moral, legal and religious restraint" to be applied to the lethal business of attacking Afghans.

I felt sorry for Falk as he clambered through his moral obstacle course. This business of trying to define a just war against Afghanistan is what C. Wright Mills used to call crackpot realism. War, as the United States has been fighting it in Iraq and Yugoslavia, consists mostly of bombing, intended to terrify the population and destroy the fabric of tolerable social existence.

Remember too that bombs mostly miss their targets. Col. John Warden, who planned the air campaign in Iraq, said afterwards that dropping dumb bombs "is like shooting skeet; 499 out of 500 pellets may miss the target, but that's irrelevant." There will always be shattered hospitals and wrecked old folks' homes, just as there will always be Defense Department flacks saying that the destruction "cannot be independently verified" or that the hospitals or old folks' homes were actually sanctuaries for enemy forces or for "command and control."

How many bombing campaigns do we have to go through in a decade to recognize all the usual landmarks? What's unusual about the latest onslaught is that it is being leveled at a country where, on numerous estimates from reputable organizations, around 7.5 million people were, before September 11, at risk of starving to death. On September 16 New York Times Islamabad correspondent John Burns reported that the United States "demanded elimination of truck convoys that provide much of the food and other supplies to Afghanistan's civilian population."

In early October the UN's World Food Program was able to resume shipments at a lower level, then the bombing began and everything stopped once more, amid fierce outcry from relief agencies that the United States was placing millions at risk, with winter just around the corner. On October 15 UN special rapporteur Jean Ziegler said the food airdrops by the same military force dropping bombs undermined the credibility of humanitarian aid. "As special rapporteur I must condemn with the last ounce of energy this operation called snowdropping [the air drops of food packages]; it is totally catastrophic for humanitarian aid." Oxfam reckons that before September 11, 400,000 were on the edge of starvation, 5.5 million "extremely vulnerable" and the balance of the overall 7.5 million at great risk. Once it starts snowing, 540,000 will be cut off from the food convoys that should have been getting them provisions for the winter.

So, by the time Falk was inscribing the protocols of what a just war might be, the United States was already engineering civilian deaths on an immense scale. Not, to be sure, the ghastly instant entombment of September 11, what Noam Chomsky has called "the most devastating instant human toll of any crime in history, outside of war," but death on the installment plan: malnutrition, infant mortality, disease, premature death for the old and so on. The numbers will climb and climb, and there won't be any "independent verification" such as the Pentagon demands.

Let's not be pettifogging and dwell on the point that nothing resembling proof of bin Laden's responsibility for the September 11 attack has yet been put forward either by the United States or its subordinate in Downing Street. Let's accept that the supreme strategist of the September 11 terror is Osama bin Laden. He's the Enemy. So what have been the Enemy's objectives? He desires the widest possible war: to kill Americans on American soil, to destroy the symbols of US military power, to engage the United States in a holy war.

The first two objectives the Enemy could accomplish by itself; the third required the cooperation of the United States. Bush fell into the trap, and Falk, The Nation and some on the left have jumped in after him.

There can be no "limited war with limited objectives" when the bombing sets match atop tinder from Pakistan and Kashmir to Ramallah, Bethlehem, Jerusalem. "Limited war" is a far less realistic prospect than to regard September 11 as a crime, to pursue its perpetrators to justice in an international court, using all relevant police and intelligence agencies here and abroad.

The left should be for peace, which in no way means ignoring the demands of either side. Bin Laden calls for: an end to sanctions on Iraq; US troops out of Saudi Arabia; justice for Palestinians. The left says aye to those, though we want a two-state solution whereas bin Laden wants to drive Jews along with secular and Christian Palestinians into the sea. The US government calls for a dismantling of the Terror Network, and the left says aye to that too. Of course we oppose networks of people who wage war on civilians, as Seth Bardacke remarked to his dad after September 11. What the American people should have learned from September 11 is that bombing civilians is wrong. As Doug Lummis then wrote in Japan: "Fully grasping the total criminality and horror of those attacks can be used to grasp the equal criminality and horror of similar acts in the past. This understanding can provide a solid ground for opposing all similar acts (including state terrorism) in the future."

So we're pretty close to supporting demands on both sides, but we know these demands are not going to be achieved by war. What is this war about? On Bush's side it's about the defense of the American Empire; on the other, an attempt to challenge that in the name of theocratic fundamentalist Islam. On that issue the left is against both sides. We don't want anyone to kill or die in the name of the American Empire, for the "war on terror" to be cashed in blood in Colombia or anywhere else, or for anyone to kill or die in the name of Islamic fundamentalism. Go to the UN, proceed on the basis that September 11 was a crime. Bring the perpetrators to justice by legal means.

Not long after the attack on the World Trade Center, when my wife and I sat dazed and weeping by the television screen, a call came through from a journalist wanting to know what the art world's response to all this was to be. We were amazed that any call could get through, since the phone lines were pretty much down. I had not been able to call any of our artist friends, but the last question I would have raised with them was how they were going to deal with the tragedy in their art! My sense was that every artist I knew was in the same state of grief and disbelief as we. Indeed, as I discovered in the days afterward, everyone I talked to wanted to express the same thoughts and feelings I needed to. Asked by a colleague how I felt, I said: like everyone else. And my colleague responded, We all feel like everyone else. And it would have been inconsistent with that feeling to think much about art at all.

Still, it says something about the power of art that someone should have looked to the art world to do something. I remembered a somewhat corny lecture from an undergraduate art history course, in which the people of Paris cried out, Take up thy brush, David! when Marat--l'ami du peuple--was stabbed to death in his bathtub. However corny, it was not all that far from the truth, as I recently read in T.J. Clark's marvelous study Farewell to an Idea. Like most political events, the French Revolution was enacted through images--think of how important to radical Islam those posters of Osama bin Laden have all at once become. Marat was a cult figure for extreme Jacobinism, and it is entirely credible that someone actually stood up on the floor of the Convention and shouted to David, Give us back Marat whole! This is what David might really have believed himself to have done in his tremendous painting of the slain Marat, shown as if descended from the cross. Pictures, in the people's eyes, are miracles, Clark writes, where what everyone thought was lost, or maybe just subject to time and fevers, comes back forever into the world. To whatever degree this not uncommon view of the power of images coincided with David's own, no one could look to art to give us back the World Trade Center whole. If someone did try to turn the event into art, it would in any case not be by means of painting a picture of the twin towers as they stood. A painting of the sky over ground zero is hardly needed, since the reality of their goneness inflects the glamour of everything that remains of the Manhattan skyline. But in any case, contemporary art has pretty much abjured pictorial representation as its main vehicle. Whom would the people summon to artistic action today?

On a recent visit to the Maryland Institute College of Art, I saw an especially moving installation in a faculty show by its graduate dean, Leslie King-Hammond. It was moving because it was of a piece with the hundreds of shrines that appeared spontaneously all over New York--in front of firehouses, along the edges of apartment building stairwells, surrounding monuments in parks and public places. In her installation, King-Hammond had placed votive candles, photographs, flowers, flags and other ephemera. One of the things contemporary art has made available to artists is the freedom to appropriate to their own artistic ends the very things with which ordinary, artistically untrained persons express themselves, so they can now bring the powers of life into art. So, much of contemporary art consists in selecting and arranging the things that define ordinary life. The avant-gardes of the 1960s were eager to overcome the gap between art and life, or to abolish the distinction between high and popular art. An agonized correspondent asked in an e-mail what Beuys would do if he were alive today. My sense is that he would do exactly what King-Hammond has done. He would assemble candles, photographs, flags and flowers. I was told that when her piece was installed, people stood in front of it and wept. How often does that happen in faculty shows, or in any show at all? It was as if the difference between what was in the art world and what was not had entirely dissolved. The art world could do nothing better than what the world itself did. In truth, I think, it could do nothing other than the world itself did. There was no room for anything else as art.

As it happens, I was to have traveled up to the Davis Museum at Wellesley College on September 11, for the opening of a remarkable installation by Joseph Bartscherer, which, by an uncanny suitability, was titled Obituary. The work is in the form of a kind of cemetery, in which copies of the New York Times are arrayed, like gravestones, in orderly rows. Only those copies of the newspaper are displayed that carry obituarial photographs on the front page. Bartscherer, a photographer himself, has been collecting and preserving these newspapers since January 1, 1990. The first he displays is from January 26, 1990, which incidentally showed a photograph of Ava Gardner, dead at 67. Bartscherer was interested, among other questions, in whose picture gets to appear on the front page when they die, and where on the front page it is placed, and how it relates to the other photographs printed there. The Times attempts to pre-shape history through the placement and size of stories and pictures, and Bartscherer was in particular concerned to exhibit the way significant deaths are presented to readers of the paper. The shape of newspapers is an important part of visual culture, but Bartscherer was attempting to bring to consciousness the way we think of death as a part of public life. I had written an essay for the catalogue, and the artist and I were to have held a public conversation on this topic and others, which, of course, never took place. Death was written all over the front page on September 12, but there were no obituarial photographs. There have in fact been five since September 11; the most recent picture is of Mike Mansfield.

Wellesley College is not an art school, and it took great courage on the part of the curator of Obituary, Lucy Flint-Gohlke, to have exhibited a work that was certain to raise the questions of why it was there, how it was art. Those would have been important questions for college students to have faced before September 11. Instead of the opening, there was on that day a kind of vigil. Officials of the college spoke, and of course there were tears. For the moment, Obituary was transformed into a shrine, not for the celebrities whose pictures occasioned the work but for the ordinary people whose deaths defined what everyone felt that day and since. The work became one with the vernacular surfaces of New York City, initially appropriated to display pictures of the missing, together with descriptions of their identifying marks, in case anyone should know their whereabouts. As days passed, these became obituarial photographs, and the focus of meditation and sorrow. For a few weeks, the tiled columns at the Times Square subway stop were transformed into a cenotaph, with photographs taped one above the other, on all four sides. Someone placed candles at the bases, along with flags and flowers. New Yorkers paused in their transit to and from the shuttle, to read the descriptions of people they did not know, but whose loss emblematized their own, even if none of their friends or family members were among the actual victims. The victim was collective, and it was us. The Times transformed itself into a hometown newspaper, publishing, day after day, obituaries of the ordinary people--the guy across the street, the girl in the building next door--who were killed. I thought of Colonel Rainborough's great speech in the debates in Cromwell's army council: "The poorest he that is in England hath a life to live, as the greatest he."

Of the many commentators I have read on the attacks, only the historian of science Lorraine Daston, in the London Review of Books, observed their highly symbolic quality. We might have seen this for ourselves, had we recalled the aborted hijacking of an Air France plane a few years ago, which it was the intention of the terrorists to explode in the air above Paris, or crash into the Eiffel Tower. Air de Paris was one of Marcel Duchamp's more poetic ready-mades. The Eiffel Tower has a meaning the Tour Montparnasse lacks. To destroy the Eiffel Tower would be to wound the soul of France, detested by the Algerian pirates for its colonialist policies. Bin Laden taunted America for its inability to protect its largest buildings. He did not boast about our inability to protect the lives of so many of its ordinary citizens. My own sense is that the hijackers thought of the buildings themselves as primary targets, then of the people. Had they attacked instead our nuclear facilities, as Daston notes, the damage would have been of an altogether other order. Al Qaeda is still thinking symbolically, warning Muslims to avoid high buildings and airplanes, and threatening heads of state responsible for Muslim deaths.

It is a perversion of Islamic ethics to write off the deaths of innocent civilians as mere "collateral damage," to use the idiom of our homemade terrorist, Timothy McVeigh, who borrowed it from the military lexicon. But had the target been nuclear facilities, human deaths would not be collateral but primary. As it was, for New Yorkers, the material destruction was collateral. The perceived target was life--our life, in both senses of the term: the fact that we live and the way we live. So when the avant-garde composer Karlheinz Stockhausen declared the attack a work of art, he was thinking as a terrorist, and his comment was rightly received with moral disgust. What terrorists saw as symbolic, New Yorkers saw as a war against a form of life. The tragedy of these crossed incongruent perceptions is that we are responding with conventional war--à la guerre comme à la guerre--when the true response is to continue to live the life the perpetrators loathe, and to find effective ways to engage with terrorists without squandering the sympathy our losses earned us even in the Muslim world.

Since it is our form of life that has been the symbolic target, it is precisely appropriate that any artistic response should be the spontaneous mode of symbolic mourning that everyone understands--the vernacular display of candles, flags, flowers and the images that, in their own poignant way, express the same aching hope and sorrow that David's painting of Marat did. I don't think the proposed memorial lightshow in lower Manhattan--to restore the vanished skyline with columns of light--is the right kind of response. It is wrong because it memorializes the structures without restoring the form of life they facilitated. When, one by one, the artists I know returned to their studios, what they returned to was the art they were engaged with before. In that sense, that is what, so far, the art world is doing about the attacks. People have been killed, but forms of life--that through which their lives had meaning--survive. There have been newspaper pieces about what happens to cities when they undergo disasters. They live through it, and beyond. The lights go back on, the theaters and restaurants fill up, everything works again. As the architect Christopher Wren had inscribed on his tomb in St. Paul's in London: If you seek a monument, look around you.

In the art world, and perhaps elsewhere, the expression "September 10" has taken on an epithetic connotation. In a seminar with graduate art students at the Maryland Institute, one of them spoke of the work of a celebrated contemporary artist as "so September 10." That made me wonder whether September 11 marks the beginning of a new period in the history of contemporary art, and even more, whether it marks a change in American conduct. A good bit of what is universally regarded as the typical behavior of New Yorkers might seem September 10, by sharp contrast with what we saw in those extraordinary amateur videos, made by plain men and women who happened to be downtown with camcorders on the morning of the disaster. People were everywhere shown acting with dignity, generosity, bravery, goodness and, spectacularly, with heroism. It was to me a demonstration of something deep in the culture, which was there on September 10 and will be there as part of the American spirit for a very long time. September 11 was a demonstration of a moral reality, in much the same way that everyone feeling like everyone else was. But that did not prevent the huge endorsement of a war against terrorism that, to my perception, is war sans phrase--as if the life of the poorest he in Afghanistan were of no greater consequence than that of ordinary American lives in the symbolic calculus of the terrorists themselves.

In his chapter on David, T.J. Clark cites a passage from George Kubler on the abrupt change of content and expression that the history of art sometimes exhibits. The sudden transformation of Occidental art and architecture about 1910 is an example of a change that was as if instantaneous. I don't know whether art itself can have undergone an abrupt change of this order on September 11, since I am far from certain that, though we are told nothing will be the same again, the moral quality of life in the West was changed by the horrors we have lived through. The point is that we have lived through them, evidently the same as we were, despite the demonstration of moral sublimity on September 11 and through the days that followed. Everyone still feels like everyone else. What the instantaneity of the impromptu shrines has taught us is that art, at some level, is an abiding integral component of the human spirit. I have always taken this on faith, but I am not grateful to the terrorism for having provided us with a modicum of empirical confirmation. Given the circumstances, I would be glad never to have known how true it proved to be.

Talk about good times for Washington's mercenary culture. Even as officials scrambled to explain why they had not acted more quickly to protect postal workers from anthrax contamination--or to deal with the public's fears regarding the disease--they were showing solicitous concern for Bayer, the maker of the anthrax-fighting antibiotic Cipro.

Faced with the choice of protecting public health or protecting a corporation's intellectual property, Health and Human Services Secretary Tommy Thompson instinctively chose to stand by Bayer, whose Cipro patent doesn't expire until late 2003. Never mind that it could take Bayer twenty months, working nonstop, to meet the government's target of a sixty-day supply for 12 million people, while generic drug companies say they could jointly reach that goal in three months. Initially, Thompson said he had no authority to override Bayer's patent, and it was only after public and Congressional criticism that he used his leverage to force Bayer to reduce its price for Cipro. Of course, if Thompson were to invoke federal law allowing the compulsory licensing of Bayer's Cipro patent to meet the current emergency (paying the company a fair royalty), he would be hard-pressed to keep arguing against similar measures to address the AIDS epidemic in the developing world.

The highly profitable pharmaceutical industry has invested heavily--doubling its campaign contributions between 1996 and 2000 to more than $26 million--to insure that it gets a Congress and Administration friendly to its interests. And it has paid off. In July the House soundly defeated an amendment sponsored by Bernie Sanders that would have allowed US wholesalers and pharmacies to import FDA-approved US-made drugs sold overseas. Given the price differential, such a change could have saved Americans $30 billion or more a year. According to Public Campaign, members who voted to protect Big Pharma from competition received, on average, $9,000 in campaign contributions from that lobby in 1999-2000, compared with $2,800 to members who voted the other way.

Nor are the drug companies alone in enjoying a special level of concern in Washington. Emboldened by Congress's hasty and over-generous bailout of the airlines, leaders of the insurance industry threatened to take the economy down with them if they too weren't promised a multibillion-dollar rescue package. Hollywood wants a tax break to keep it from moving studios abroad. Restaurants and hotels want taxpayers to subsidize 100 percent of the cost of their customers' three-martini lunches and golf junkets. Travel agents, car rental agencies and amusement parks want to give everybody a $500 tax credit to bolster their businesses. And every money-making corporation that ever got caught trying to avoid paying its fair share of taxes now hopes that this is the moment to kill off the alternative minimum tax. Meanwhile, the hundreds of thousands of workers who are out of a job since September 11, or barely hanging on, can't get Congress to extend their unemployment benefits or to help them keep their healthcare.

The lesson for an anxious public wondering whether the government can protect them--from sickness, from joblessness, from being treated as second-class citizens--is that it's time to throw the money-changers out of the temple. While battling terrorism abroad, we must also fight corporate greed here at home.

The September 11 attack on the World Trade Center led journalists and image-makers to rediscover New York's working class. In an extraordinary essay in Business Week titled "Real Masters of the Universe," Bruce Nussbaum noted that during the rescue effort, "big, beefy working-class guys became heroes once again, replacing the telegenic financial analysts and techno-billionaires who once had held the nation in thrall." Nussbaum fulsomely praised "men and women making 40 grand a year...risking their own lives--to save investment bankers and traders making 10 times that amount." In The New York Times Magazine, Verlyn Klinkenborg, describing the construction workers who formed the second wave of rescuers, wrote, "A city of unsoiled and unroughened hands has learned to love a class of laborers it once tried hard not to notice."

Until September 11, working-class New Yorkers had disappeared from public portrayals and mental maps of Gotham. This contrasted sharply with the more distant past. When World War II ended, New York was palpably a working-class city. Within easy walking distance of what we now call ground zero were myriad sites of blue-collar labor, from a cigarette factory on Water Street to hundreds of small printing firms, to docks where longshoremen unloaded products from around the world, to commodity markets where the ownership of goods like coffee was not only exchanged, but the products themselves were stored and processed.

Much of what made post-World War II New York great came from the influence of its working class. Workers and their families helped pattern the fabric of the city with their culture, style and worldview. Through political and ethnic organizations, tenant and neighborhood associations and, above all, unions they helped create a social-democratic polity unique in the country in its ambition and achievements. New York City became a laboratory for a social urbanism committed to an expansive welfare state, racial equality and popular access to culture and education.

Over time, though, the influence and social presence of working-class New Yorkers faded, as manufacturing jobs disappeared, suburbanization dispersed city residents and anti-Communism made the language of class unacceptable. Then came the fiscal crisis of the 1970s, which saw a rapid shift of power to the corporate and banking elite. When the city recovered, with an economy and culture ever more skewed toward a narrow but enormously profitable financial sector, working-class New York seemed bleached out by the white light of new money.

The September 11 attack and the response to it have once again made working-class New Yorkers visible and appreciated. Not only were the rescuers working class, but so were most of the victims. They were part of a working class that has changed since 1945, becoming more diverse in occupation, race and ethnicity. Killed that day, along with the fire, police and emergency medical workers, were accountants, clerks, secretaries, restaurant employees, janitors, security guards and electricians. Many financial firm victims, far from being mega-rich, were young traders and technicians, the grunts of the world capital markets.

The newfound appreciation of working-class New York creates an opening for insisting that decisions about rebuilding the city involve all social sectors. Whatever else it was, the World Trade Center was not a complex that grew out of a democratic city-planning process. We need to do better this time. Labor and community groups must be full partners in deciding what should be built and where, how precious public funds are allocated and what kinds of jobs--and job standards--are promoted. Some already have begun pushing for inclusion; others should begin doing so now.

In the coming weeks and months, we need to rethink the economic development strategies of the past half-century, which benefited many New Yorkers but did not serve others well. Might some of the recovery money be better spent on infrastructure support for local manufacturing, rather than on new office towers in lower Manhattan? And perhaps some should go to human capital investment, in schools, public health and much-needed housing, creating a work force and environment that would attract and sustain a variety of economic enterprises.

Winning even a modest voice for working-class New Yorkers in the reconstruction process won't be easy. Already, political and business leaders have called for appointing a rebuilding authority, empowered to circumvent zoning and environmental regulations and normal controls over public spending. The effect would be to deny ordinary citizens any role in shaping the city of the future. As the shameful airline bailout--which allocated no money to laid-off workers--so clearly demonstrated, inside operators with money and connections have the advantage in moments of confusion and urgency.

But altered perceptions of New York may change the usual calculus. On September 11, working-class New Yorkers were the heroes and the victims, giving them a strong moral claim on planning the future. Rightfully, they had that claim on September 10, too, even if few in power acknowledged it. It ought not require mass death to remind us who forms the majority of the city's population and who keeps it functioning, day after day after day.

It's time to ask "borderless" corporations: Which side are you on?


When the Financial Times launched an investigation into the contributors to "counter-capitalist groups," its dragnet hauled in an unlikely name--Unilever, one of the world's biggest multinational corporations. Last year when the global giant purchased Ben & Jerry's, the Vermont ice cream maker, it had to agree to contribute $5 million to the progressive-minded company's charitable foundation and at least $1.1 million a year to social change groups. Thus it was that the Ruckus Society, whose demonstrators helped shut down the Seattle WTO meeting, and Global Exchange, a human rights group, and other groups dedicated to subverting global capitalism received no-strings donations from Unilever--laundered through the Ben & Jerry's Foundation.


Aram Roston writes: Colombian-born activist Gustavo Soler, a heavy equipment operator at a US-owned coal mine featured in a recent Nation story ("It's the Real Thing: Murder," September 3/10), was murdered October 6--shot twice in the head, presumably by right-wing paramilitaries. Soler had pushed for the rights of Colombian workers employed by the Alabama-based Drummond Company. His predecessor as union president was assassinated in March. The paramilitaries have gone on a rampage, slaughtering more than 100 civilians across Colombia, just as Human Rights Watch came out with a new report on the links between the right-wing group and the Colombian military.


For an upcoming special issue on the National Entertainment State, readers are invited to submit brief letters nominating their favorite independent media outlet. It might be a website, alternative newspaper, magazine, public access TV show--as long as it is useful, imaginative, witty, socially conscious or otherwise worthy of wider attention. Please e-mail your nomination, by November 21, to letters@thenation.com, with the subject line "Favorite Media Outlet." Include your street address and phone number.