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CIA vs. Congress vs. White House: Who to Root For?

It's hard to know who to root for in the continuing scuffles between the Republican Congress, the White House and the CIA over the intelligence agency. The latest round--actually, it's a postdated tussle--was triggered by a May 18, 2006 letter that Representative Peter Hoekstra, the Republican chairman of the House intelligence committee, sent to George W. Bush raising protests on three fronts: recent appointments at the CIA, the new Director of National Intelligence office, and the White House's failure to brief Congress about certain covert programs, which Hoekstra didn't name in his letter. (The letter was first disclosed by The New York Times on July 9.)

It was easy for some to see Hoekstra as a heroic reformer challenging secret government. Truthdig.org named Hoekstra the "Truthdigger of the Week." But the spy wars of Washington are not linear affairs and the battle lines murky. Is the CIA a rotting institution that failed prior to 9/11 and then provided Bush flawed intelligence to justify an invasion of Iraq? Or is it a bastion of risk-averse conventionalists who have undermined Bush's ambitious, forward-looking national security agenda (which includes the Iraq war)? The CIA has been getting it from the left and the right in recent years. And it's unclear whether the top tier of the agency ought to be backed or booted.

When Porter Goss, a Republican who preceded Hoekstra as chairman of the House intelligence committee, was CIA director, he placed his political aides in charge of the agency, and the career officers rebelled. Several of the most experienced CIA veterans--including Stephen Kappes, the director of operations, resigned rather than deal with the Goss crew. The CIA people viewed the Goss gang as hacks motivated by political concerns; Goss and his allies saw the CIA career leadership as bureaucrats resistant to change. (Goss resigned as CIA chief in May; he was replaced by General Michael Hayden, who, as the National Security Agency chief, was a longtime intelligence professional.)

Enter Hoekstra and his letter. What received the most attention was his charge that his committee had not been briefed about "some alleged Intelligence Community activities." He added, "If these allegations are true, they may represent a breach of responsibility by the Administration, a violation of law, and, just as importantly, a direct affront to me and the Members o this committee." Hoekstra did not say what secrets the White House had been keeping from him. Open-government fans cheered Hoekstra's pointed reminder to Bush: the law says you cannot run covert programs on your own without telling Congress. And on Fox News Sunday, the day his letter was disclosed, Hoekstra said his letter had done the trick and that subsequently he was briefed about this intelligence activity--which he still would not identify. (Hoekstra is not much of a maverick; he has not rushed to hold public hearings on such matters as the controversial and arguably illegal NSA domestic wiretapping program.)

Another point Hoekstra made in his letter was important. He expressed his concern that the new DNI office has become a "large, bureaucratic, and hierarchical structure." If there was a need for a DNI--which supposedly is supposed to coordinate the various intelligence agencies of the US government, including the CIA--there was no reason to create another intelligence bureaucracy. The intelligence community would benefit more from streamlining than from an expanding management. So score Hoekstra another point here.

But the first topic Hoekstra raised in his letter shows he can be loopy. Hoekstra voiced his displeasure over the selection of Hayden, an Air Force general, to be the CIA director, noting that he wanted a civilian to head a civilian agency. But what really ticked him off was the selection of Kappes to be the new number-two at the agency. Bringing back Kappes, Hoekstra wrote, would lead to "political problems" at the agency. What did Hoekstra mean by this? He explained: "I have been long concerned that a strong and well-positioned group within the Agency intentionally undermined the Administration and its policies. This argument is supported by the Ambassador Wilson/Valerie Plame events, as well as by the string of unauthorized disclosures from an organization that prides itself with being able to keep secrets." Kappes, he added, is part of this group.

Hoekstra didn't spell it out in his note. But what he was saying was that he believed a CIA cabal has tried to undercut Bush regarding the war in Iraq--that CIA officials opposed to the war plotted against the president and sought to undercut his case for war by leaking stories indicating that the intelligence cited by Bush and his aides on Iraq's WMDs and purported connections to al Qaeda was not that strong. (Joe Wilson's trip to Niger and subsequent op-ed piece declaring there had been nothing to the charge Iraq was seeking uranium there, the rightwing theory goes, was part of a deliberate CIA conspiracy against the White House.) Hoekstra also is probably thinking of the leaks about CIA secret prisons and the agency's clandestine renditions of detainees to nations where abusive interrogation occurs.

So Hoekstra appears to be of the belief that the problem was not that Bush used flawed WMD intelligence to take the nation to war but that CIA leakers disclosed the flaws of the intelligence. This is a tad alarming, for every post-invasion review of the intelligence--including one conducted by Hoekstra's own committee--found that the intelligence community was dead wrong on WMDs. A Senate intelligence committee review also concluded the CIA had been right to conclude there was no strong evidence that al Qaeda and Saddam Hussein were in cahoots. Hoekstra should realize that the important issue is not the leaks (which were true) but the misuse of the intelligence.

But Hoekstra still believes in Iraq's WMDs. Last month, he joined with Republican Senator Rick Santorum to hype a 2003 Defense Department report that noted that about 500 weapons containing degrade mustard gas or sarin nerve agent had been found in Iraq. These weapons, though, were manufactured before the first Gulf War and were not evidence that Saddam Hussen had maintained a WMD program in the years before the invasion. A senior Pentagon official, quoted by Fox News, said that these weapons were not useable. "This does not reflect a capacity that was built up after 1991," he said, noting the munitions "are not the WMDs this country and the rest of the world believed Iraq had, and not the WMDs for which this country went to war." Yet Hoekstra and Santorum made it seem this discovery was significant. Hoekstra promised further investigation. "We are going to put additional pressure on the Department of Defense and the folks in Iraq to more fully pursue a complete investigation of what existed in Iraq before the war," he said.

Let's recap: Hoekstra was mad at Bush for keeping him out of the loop, and he warned the president about expanding the bloated intelligence capability. But he thinks the CIA is laced with politically-minded plotters who hold unfounded beliefs (such as there were no operational links between Saddam and Osama bin Laden) and who are working to thwart the national security policies of the nation. In Washington's version of Spy Verus Spy, it can be difficult to know which--if any--side to cheer.

Bono's Anti-Chavez Video Game

The New York Post's Page Six reports that Bono , supposed savior of the world's disenfranchised, has, through his private equity firm, invested in a video game which depicts Venezuela as a "banana republic led by a 'power-hungry tyrant.'" According to Page Six, "Players assume the role of a mercenary sent to a fictitious Venezuela, where a dictator has seized control of the country and its oil. The gun-for-hire is instructed, 'If you can see it, you can buy it, steal it, or blow the living crap out of it.'"

The Post story quoted some "lefties" who were annoyed about the game, among them Jeff Cohen, who criticized the game for glorifying "stale, old mercenary approaches." Oh, is that the problem with the violent overthrow of other people's governments? It isn't fresh thinking! It's so 1980s, like berry-flavored lip gloss. Jeff must have been a little jet-lagged when he made that silly remark.

Bono gets much humanitarian cred for campaigning for Third World debt relief. But it is disgusting to make a game out of the Bush Administration's effort to undermine Hugo Chavez, a democratically elected leader, and one of the few living politicians today who are actually working to improve the lot of the world's poor -- the poor, whom the sanctimonious Bono claims to care so much about. If Bono is serious in his commitment, and not, as one frequently suspects, a vapid celebrity poser, he should immediately use his financial muscle to deep-six this horrible video game.

Mexico's Electoral Cliffhanger

The fate of Mexico is undetermined at this hour, but this much we know:Don't take at face value what you read in the leading Americannewspapers about Mexico's cliffhanger election outcome. Their candidateis the candidate of multinational business--FelipeCalderón--who supposedly won the presidential election by 240,000votes out of 41 million. Keep in mind that nearly 65 percent of Mexicanvoters essentially voted against Calderón and his pro-globalization,pro-NAFTA agenda by voting for someone else.

The leading opponent--Andrés Manuel López Obrador--came in second andcharges he was robbed. The most influential papers in America--theNew York Times, the Washington Post and the Wall StreetJournal--have already warned that López Obrador is a dangerous character.They depict a "firebrand" and "messianic" leader of the unwashed poor,a potentially violent "populist" who might destabilize the country.There is a long tradition in these newspapers of warning Americanreaders about the rise of non-establishment politicians in Mexico andLatin America. The CIA has devoted enormous energy over the years topreventing such a calamity for US interests (oil, banking, minerals--you name it.)

So keep an open mind about whether López Obrador's charges of election fraudare substantive or, as the media suggest, farfetched. In recentdecades, Mexico's ruling class has been notorious, even violent, aboutfixing elections. The presidency was effectively stolen from aleft-wing challenger back in 1988 to install Carlos Salinas de Gortari, much admired byWall Street as a "modern reformer." He embraced NAFTA and US financesbut was discredited and deeply corrupt. (He had to flee the countryafterward but was taken in by his American friends, including theWall Street Journal, which put him on the Dow Jones board.)

On occasion, a promising politician's candidacy has even been cut shortby murder. There were two in the run-up to the 1994 election: Luis Donaldo Colosio and Jose Francisco Ruiz Massieu.

What's most disgusting in the current coverage is the similarity to anAmerican election scam. Newsies are pounding home the same message forLópez Obrador that they used to bully Al Gore back in 2000: Don't be a soreloser. Fold your tent and accept defeat, for the sake of stability, forthe good health of democracy. Remember Florida? If the votes had beenfairly, thoroughly recounted there in 2000, Gore would be the "nextPresident."

In Mexico, López Obrador asks for a full recount of the national vote--areasonable demand, given what's already known--but this is dismissed asirrational, even unpatriotic. So far he is standing his ground, but wecan expect the respectable pressures to intensify against him.Establishment influentials from the North will warn that Mexico'sfuture prosperity could be damaged if US investors "lose confidence."The specter of small-d democratic protest will be described as animpediment to Calderón's governing the entire country. Indeed, itmight be.

I am not anticipating a López Obrador triumph, but surely he is right todemand a full accounting of the real results. In any event, theMexican people have turned a big corner in their long struggle toachieve a genuine voice in a self-governing democracy. This election,even if the common people fall short of full justice, represents asignificant advance. (If only the American people could discover thesame spirit of insurgency.)

If Americans were not kept in ignorance by their own leaders and media,they might recognize their self-interest is directly involved. Theywould understand why, instead of fearing the popular aspirations ofordinary Mexicans, ordinary Americans should be standing with them.

Abramoff Returns

Jack Abramoff lives! When's the last time you heard his name? Washington had almost forgotten the disgraced lobbyist.

Luckily the Secret Service hadn't. New logs released over the weekend show that Abramoff visited the White House a half-dozen times in the early days of the Bush Administration. Previously the White House claimed Abramoff had only been there twice. But the Justice Department explained that the Secret Service had quote "unexpectedly discovered" Abramoff's other appointments.

Still, something is missing from this picture: the Congressmen Abramoff bought and used.

When Abramoff plead guilty to bribery charges last January, press reports indicated that over a dozen Congressmen might be implicated. The Wall Street Journal put the number at sixty. Since then, not one has been charged. Aides have copped deals. A top Bush Administration official, David Safavian, was recently convicted for lying to investigators.

But I'm still waiting for the top guns to fall on Capitol Hill.

David Brooks--Just Another Joe Lieberman Fan

David Brooks had a laughable column in Sunday's New York Times.

"What's happening to Lieberman can only be described as a liberal inquisition," Brooks proclaims. What Brooks characterizes as an "inquisition" -- an effort, as he puts it, "to expel Joe Lieberman from modern liberalism"-- is simply a spirited effort to elect a Senator who better represents the values of Connecticut's citizens. That's not ideological purity . It's about organized people holding accountable a legislator who has acted as an unflinching supporter of this disastrous war.

Brooks--who likes to play populist--can't hide his contempt for the ordinary citizen-voters of Connecticut. Apparently, he's forgotten what elections are about. He derides "fundamentalists of both parties who believe that politics should be about party discipline, passion, purity, orthodoxy or clear choices." What's wrong about a politics that gives voters "clear choices"? As Washington Post columnist Harold Meyerson put it, "Now, maybe I've had this backward all my life, but I thought that elections were held to enable voters to choose between candidates espousing different points of view on the most important issues." What's wrong with bringing some passion back into our politics, which has been dominated for too long by inside-the-beltway, well-paid consultants and pollsters.

Then there's Brooks' weird reference to "upscale revivalists on the left [who] reduce everything to Iraq, and all who are deemed impure must be cleansed away." Well, if you put it that way there sure are a lot of left-wing revivalists in Connecticut. The latest polls show 60 percent of voters in that state are against the war. As the Nation's John Nichols reported last week, "few states register higher antiwar sentiment than does Connecticut and the distaste for the occupation extends far beyond the Democratic base to include independents and quite a few Republicans." ( Brooks doesn't bother to acknowledge that Lieberman's primary opponent Ned Lamont is closer to Connecticut's mainstream than the incumbent Senator.)

It's certainly true that the war is the defining issue. How could it not be? And while almost 100 percent of the Democratic caucus in the Senate tries to find a way out of this debacle, (a handful more courageously than others) Lieberman remains an unflinching cheerleader for Bush--giving cover to this White House's poisonously partisan use of the war.

But it's not just about the war--as Brooks and other Lieberman supporters would have you believe. It's also about Lieberman's uncanny willingness to go out of his way to give Bush and the Republicans political cover in their attempts to define the Democratic Party as weak or incapable of governing. Instead of fighting back, Lieberman legitimizes these attacks. For example, when asked about Democrats who vocally oppose the President at a time of war, Lieberman said, "in matters of war we undermine Presidential credibility at our nation's peril."

Say what? Is Lieberman really saying, Harold Meyerson asks, "[that] to criticize Bush on the war is partisan, while refusing to criticize Bush on the war affirms the national interest?" And this wasn't just a disagreement on the war with many Democrats – Lieberman actually gave Bush cover for the idea that those who dare to criticize his handling of the war are un-American. (That would include a majority of independents, by the way.)

And, at the end of June, when Republicans scheduled Senate votes aimed at depicting Democrats in an election year as "cut and run" cowards, Lieberman was the first to speak during the Republicans' time. What did the Democratic Senator from Connecticut do? Lieberman dumped on the Democrats, showing that he was willing to be used to depict his fellow Democrats as weak.

Nor did Lieberman stand with his party in vigorously opposing Bush's Social Security privatization plan. As Josh Marshall's TalkingPointsmemo.com has reported, when Bush announced his privatization plan Lieberman said in February 2005 that he was undecided, and announced that he wanted to study the president's idea. The result: Lieberman helped Bush make privatization a legitimate subject of debate – when it should have been cast off as extreme.

Lieberman has also been the Democratic Party's point person on defending off-the-books, short term stock options for CEOs. This invitation to thievery resulted, as was predicted, in the plundering of corporations--to the detriment of employees and small investors. But, even after the worst corporate crime scandals since the Gilded Age, Lieberman defended these practices and continued to collect big time campaign contributions from executives in Silicon Valley and elsewhere who were cleaning up.

What David Brooks fails to recognize is that millions of Connecticut citizens have decided they want a Senator whose values accord with theirs. That has little to do, as Brooks would have you believe, with the oft-maligned netroots seeking "to purge what's left of the Scoop Jackson Democrats." It's about a renewed recognition that people can make a difference and choose leaders who actually represent them. Ned Lamont--imperfections and all (have you ever met a perfect politician?) -- is mounting a very strong challenge and deserves credit for helping to lead that charge. So do thousands of students, activists, principled citizens--including former Lieberman supporters--who have had enough.

Recruiting Hatred

The world's greatest military is no longer what it once was.

Soldiers in Iraq are being charged with rape, premeditated murder and cold-blooded massacres. Troops with severe mental illness are being sent back into battle. And the Army keeps lowering recruiting standards, roping in high-school drop-outs and now, skinheads and neo-Nazis.

According to a shocking new report by the Southern Poverty Law Center, neo-Nazis and skinheads are infiltrating the military, perhaps in the thousands, as a result of lax recruiting enforcement.

"Recruiters are knowingly allowing neo-Nazis and white supremacists to join the armed forces, and commanders don't remove them from the military even after we positively identify them as extremists or gang members," says Defense Department investigator Scott Barfield.

Barfield presented the military with evidence of 320 extremists in the past year, but only two have been discharged.

"We've got Aryan Nation graffiti in Baghdad."

Is that what the Bush Administration means by spreading freedom and democracy?

If the kids of the rich and privileged won't fight this war, I guess skinheads will.

A Subpoena for Rumsfeld

Defense Secretary Rumsfeld can't be bothered with a $30 Billion defense procurement scandal; nor will he respond to a Congressional inquiry into retaliation against an Abu Ghraib whistleblower.

That's why he received a subpoena last week from the House Committee on Government Reform.

In March the Committee requested documents from Rumsfeld relating to the case of military intelligence soldier, Sgt. Samuel Provance. Rumsfeld never replied despite numerous follow-up phone calls and emails.

Provance spoke out in 2004 against the human rights violations and torture at the infamous prison – "including the use of prisoners' children to break them." And testifying before Congress in February, Provance described his frustration in trying to alert his superiors about the atrocities.

"They [the investigations] seemed to me to be designed to shut people up, not to reveal the truth about what happened and punish all the wrongdoers. In particular, they seemed focused on trying to shut off the responsibility of those who were higher up the chain of command."

Provance cited Maj. Gen. George Fay as an example. Initially resistant to hearing the allegations, Fay then threatened to prosecute Provance for not coming forward sooner with his information.

According to Rep. Henry Waxman, "… rather than investigate Sergeant Provance's claims, the military ignored him, told him he could be prosecuted for not coming forward sooner, and then demoted him and pulled his security clearance."

Just as this administration has waged an undeclared war against on independent media providing a measure of oversight, so too has it cracked down on whistleblowers who fight back against its grip on information. The Provance case is typical modus operandi for the Bush White House: attack anyone acting in the public's interest; and whitewash the truth.

With the administration's condoning of torture; treatment of the Geneva Conventions as quaint; and fabricated justification for a War – let's hope, this time, Secretary Rumsfeld is held accountable.

Nation and NY Times: Bay of Pigs Deja Vu

"The assault on a free press ...should be recognized for what it is," wrote New York Times columnist Frank Rich last Sunday. "Another desperate ploy by officials trying to hide their own lethal mistakes in the shadows."

While the Bush Administration's war on a free, independent and aggressive media is unparalleled, US government attempts to suppress information are not new. More than forty years ago, for example, the New York Times acceded to the Kennedy Administration's request that it play down its advance knowledge of the disastrous Bay of Pigs invasion. (In a recent editorial, the Times wrote that "it seems in hindsight that the editors were over-cautious" by not printing what they knew about the invasion.)

In his open letter explaining the decision to publish the banking records story, Executive Editor Bill Keller referred to the Times' handling of the Bay of Pigs story. "Our biggest failures," Keller wrote, "have generally been when we failed to dig deep enough or to report fully enough. After the Times played down its advance knowledge of the Bay of Pigs invasion, President Kennedy reportedly said he wished we had published what we knew and perhaps prevented a fiasco."

What is little known is the role The Nation played in this story. In November 1960, The Nation published the first article on preparations being made for what would become the Bay of Pigs invasion. According to Carey McWilliams, The Nation's editor at the time, "Ronald Hilton, director of Stanford University's Institute of Hispanic-American Studies had just returned from Guatemala with reports that it was common knowledge --indeed, it had been reported in La Hora, a leading newspaper, on October 30--that the CIA was training a guerrilla force at a secret base for an early invasion of Cuba." McWilliams promptly got in touch with Hilton, who confirmed details, and agreed that he could be quoted. McWilliams wrote an article setting forth the facts Hilton had given him, including the location of the base near the mountain town of Retalhulea. If the reports were true, McWilliams wrote, "then public pressure should be brought to bear upon the administration to abandon this dangerous and hare-brained project." in the meantime, he added, the facts should be checked out immediately "by all US news media with correspondents in Guatemala." Although a special press release was prepared-- to which copies of the article were attached-- the wire services ignored the story and only one or two papers mentioned it.

However, The Nation's article was then called to the attention of a New York Times editor who assigned Times' reporter Paul Kennedy to do a story. Kennedy filed an article in January 1961 covering similar ground to the Nation's. But it was the Tad Szulc article in the Times-- that ran only a week before the invasion in April 1961 --that Kennedy called the Times's publisher about. The New York Times yielded to the President's demand that the story be reduced in prominence and detail.

According to McWilliams's memoirs (and the Columbia University "Forum" on "The Press and the Bay of Pigs" of Fall 1967), a week or so after the Bay of Pigs fiasco a group of press executives met with President Kennedy at the White House. "At this session," McWilliams recounts, "the President complained of premature disclosure of security information in the press and cited Paul Kennedy's story in the New York Times as a case in point. The New York Times' Turner Catledge then reminded Kennedy that reports about the base had previously appeared in the Guatemalan newspaper La Hora and The Nation."

The President reportedly turned to Catledge and said, "if you had printed more about the operation, you would have saved us from a colossal mistake." More than a year later, Kennedy told the New York Times' Orvil Dryfoos, "I wish you had run everything on Cuba...I am just sorry you didn't tell it at the time."

To his credit, top Kennedy aide and historian Arthur Schlesinger, Jr. also later said that he wished the Times had run its stories so that the whole catastrophe would have been avoided.

As McWilliams notes, "Kennedy was correct: timely disclosure of the facts might have prevented what was truly a 'colossal mistake;' but the press elected not to pursue the lead The Nation had provided."

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Never has the need for a free and independent press been greater. Never has the need for news outlets to inform the public about government abuse and wrongdoing been greater.

The Bush Administration is dedicated to sabotaging the workings of a free press--a cornerstone of a true democracy. The vituperative attacks on the New York Times--a newspaper that, as The Nation's Washington Editor David Corn points out, "consistently published stories that hyped the WMD threat" and whose reporters "--Judith Miller and others--churned out breathless exposes based on Administration leaks and handouts from Iraqi exile groups angling to start a war"--have little to do with the paper's recent publication of the banking records story. It is part of the White House's larger and long-term game plan to delegitimize the press's role as a watchdog of government abuse, an effective counter to virtually unchecked executive power.

The other day Vice-President Cheney attacked the New York Times' disclosure about illegal wiretapping of US citizens. "I think that is a disgrace," Cheney said, referring to the Times winning a Pulitzer Prize for the story.

What is disgraceful is the conduct of an Administration that engages in press-bashing to score political points at the expense of constitutional principles.

New York Nixes Gay Marriage

So it looks like New York won't go the way of Massachusetts. Despite ideological similarities with Massachusetts's Supreme Judicial Court -- what NYU law professor Stephen Gillers called a similar "center of gravity" -- New York's Court of Appeals reached a very different conclusion in their ruling on gay marriage (Hernandez v. Robles).

The court worked hard to avoid sounding homophobic in its decision, acknowledging that "there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past..." But the court swiftly dodged the equality arguments presented by plaintiffs and instead -- in what can only be called an act of judicial passivism -- kicked the issue to the state legislature. In his plurality opinion Judge Robert Smith concluded, "We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature." A concurring opinion even gingerly suggested that "it may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage, or whatever status the Legislature deems appropriate."

Deference to state legislators, however, did not stop the court from speculating on what could be a rational basis for legislation excluding homosexuals from marriage (and by the way the legislation in question is the Domestic Relations Law of 1909). Indeed, such speculation necessarily formed the crux of the court's ruling. And here's where the court's ruling gets really gnarly:

"First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not...The Legislature could also find that such [heterosexual] relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement -- in the form of marriage and its attendant benefits -- to opposite-sex couples who make a solemn, long-term commitment to each other. The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more."

Need a translation? Heterosexual New Yorkers are reckless, irresponsible sluts who breed without regard. Gays, however, must dutifully and deliberately pursue adoption, artificial insemination or "other technological marvels" and are thus more likely to raise kids in stable families. Consequently, gays don't need the "inducement" of marriage. Voila! And in just a few keystrokes, the stereotype of homosexual promiscuity is reversed -- though with familiar anti-gay results.

Judge Judith Kaye eviscerated this perverse rationalization in her dissent when she wrote, "Of course, there are many ways in which the government could rationally promote procreation--for example, by giving tax breaks to couples who have children, subsidizing child care for those couples, or mandating generous family leave for parents. Any of these benefits--and many more--might convince people who would not otherwise have children to do so. But no one rationally decides to have children because gays and lesbians are excluded from marriage."

In the '80s and '90s, fears of gay promiscuity produced the now almost quaint "gay panic defense" through which gay bashers were let off the hook because they went "temporarily insane" in the face of perceived homosexual advances. That the New York Court of Appeals now invokes a kind of heterosexual panic argument in the face of stable, monogamous, marriage-minded gay couples is rich indeed. But it isn't surprising given how, as Lisa Duggan and I have argued, debates about gay marriage have become less about gay civil rights and more about the future of marriage as an institution. If marriage is the symbolic and legal foundation for household security (for childcare, healthcare, retirement, home ownership, etc.), and marriage is increasingly unpopular and unstable -- then what? Like family-values conservatives, the Court of Appeals stoked and manipulated these anxieties to produce an immediately anti-gay opinion. But the deeper and more occluded marital disorder at the heart of the issue can't be resolved by banning gay marriage. As Judge Kaye's dissent suggests, perhaps it's time for both heterosexuals and gays to debate and enact genuinely pro-family (or pro-household) policies head-on, and recognize the gay marriage question for what it is -- a rather simple matter of equality under law.