News and Features
Attorney General John Ashcroft says he does not want Timothy McVeigh to "inject more poison into our culture"--a striking statement, given the method of McVeigh's execution. Accordingly, he intends to deny permission for television interviews during the Oklahoma City bomber's final weeks on federal death row. (The Oklahoma legislature had a similar purpose in mind when it passed a resolution condemning a new book about McVeigh--thus bringing it more publicity, as a dissenting legislator pointed out.) At the same time, Ashcroft has made a dramatic cultural intervention of his own, authorizing the closed-circuit telecast of McVeigh's execution to perhaps 200 family members of his victims.
Both of Ashcroft's announcements show clearly how capital punishment is coarsening American institutions. Although most of the press coverage did not mention it, the Attorney General's diktat banning broadcast interviews applies not only to McVeigh but to all federal death-row inmates. However repellent the thought of a McVeigh TV interview, the ban is one more step in a repressive, systematic national clampdown on press coverage of prisons, which in some states, like Virginia, has led to a virtual blackout of inmate interviews. In the future, Ashcroft's interview ban could deny broadcast access to a federal inmate far different from McVeigh, someone with a legitimate claim of innocence or discrimination--a real likelihood given the nearly 100 death-row inmates in state prisons exonerated by new evidence and the large percentage of capital convictions overturned for grave constitutional error in the original trial.
The question of a public telecast of McVeigh's lethal injection is now moot with Ashcroft's closed-circuit plan, though the drumbeat for public executions continues--with some support among notable death-penalty abolitionists and civil libertarians like Sister Helen Prejean and Nat Hentoff. Televising executions, their argument goes, would either sicken the public or at least make Americans more accountable for what goes on in their name. We disagree. We see telecasts of executions as a fundamentally different matter from death-row interviews. Today's executions by lethal injection are exercises in the engineering of death, the institutionalizing of death, the bureaucratizing of death. Far from shocking America, viewing lethal injections through the distancing glow of a TV screen will further normalize state killing--as television ultimately normalizes the forms of violence it depicts.
Ashcroft did not invent closed-circuit telecasts of an execution--it has been tried at the state level--but it raises disturbing questions. For one thing, as several technological experts have pointed out, the phone-line transmission may not be immune to hacking or decryption--raising the prospect of a McVeigh snuff film in the near or distant future. More important, it makes this first federal execution, one moving forward even as Supreme Court Justice Ruth Bader Ginsburg joins the call for a death-penalty moratorium, a spectacle of individual vengeance for McVeigh's victims--a dangerous turn toward privatizing justice.
Far from shifting the spotlight to the survivors of Oklahoma City, Ashcroft's decision heightens the perverse amplification of McVeigh's voice initiated by his death sentence. The press spent the early weeks of spring speculating about how large a crowd would watch McVeigh take the needle. Instead of fading into anonymity, McVeigh has kept himself on the front page until his final moments and turned the chronicle of his last months into a testament for the militia fringe, who will make him a martyr. This is justice neither for McVeigh's victims nor for the country--and that is the real poison seeping into our culture from the federal death chamber in Terre Haute.
Congress is poised to reauthorize fearmongering "abstinence-only" sex ed.
The current President George Bush, whose very name evokes a dark era many would prefer to forget, seems determined to resurrect the ghosts of America's scandal-ridden past. A number of his foreign policy appointments are former Iran/contra operatives who are being rehabilitated and rewarded with powerful foreign policy posts.
John Negroponte's nomination to be US ambassador to the United Nations is a case in point. Bush has named him to represent the United States at an institution built on principles that include nonintervention, international law and human rights. Qualifications for the job: Negroponte was a central player in a bloody paramilitary war that flagrantly violated those principles and was repeatedly denounced by the institution in which he would now serve. As ambassador to Honduras from 1981 to 1985, Negroponte was the acknowledged "boss" of the early covert contra operations; he also acted as a proconsul, working closely with the Honduran military commander, whose forces aided the covert war while his embassy consistently denied or misrepresented politically inconvenient evidence of atrocities and abuse.
The nomination of Otto Reich to be Assistant Secretary of State for the Western Hemisphere is even more offensive to international and domestic principles. A longtime anti-Castro Cuban-American, Reich is backed by Senator Jesse Helms and the hard-line exile groups that want political payback for giving Bush his real or imagined margin of victory in Florida.
Like Negroponte, Reich was a key player in the illicit contra war. In 1983 a CIA propaganda specialist named Walter Raymond handpicked Reich to head the new and innocuous-sounding Office of Public Diplomacy. Housed in the State Department, Reich's office actually answered directly to Raymond and to Oliver North in the White House. A General Accounting Office review showed that Reich's office repeatedly provided sole source contracts to other members of North's network, including those involved in illegal fundraising for arms. More important, a Comptroller General's review concluded that Reich's office had "engaged in prohibited, covert propaganda activities designed to influence the media and the public."
Among those activities, as revealed in declassified records, were "white propaganda" operations--having contractors plant articles in the press or influence print and TV coverage while hiding their government connection--and using US military psychological warfare personnel to engage in, as Reich put it, "persuasive communications" intended to influence public opinion.
Reich himself engaged in a crude form of "persuasive communications," personally berating media executives and harassing reporters if news coverage was not favorable to the Reagan Administration's position. When NPR's All Things Considered ran the first major investigative report on contra human rights atrocities, Reich demanded a meeting with its editors, producers and reporters, at which he informed them that his office was "monitoring" all their programs and that he considered NPR to be biased against the contras and US policy. A Washington Post stringer remembers that after a contentious briefing from Reich in Managua in which the stringer and a reporter from Newsweek questioned the truthfulness of the Administration's assertions, an article appeared in a right-wing newsletter put out by Accuracy in Media calling him a "johnny sandinista" and falsely asserting that the Nicaraguan government was providing the two reporters with prostitutes. Reich's office, the then-US Ambassador to Managua told the Post reporter, was responsible for the rumors.
Reich's role as a revolving-door lobbyist is also likely to be a factor in his nomination hearings. As a partner in the Brock Group, a lobbying firm that according to Justice Department records represented the anti-Castro liquor giant Bacardi, Reich advised Jesse Helms's office on the drafting of the Helms-Burton legislation, which tightens the embargo against Cuba. Since passage of the law in 1996, Reich's own lobbying firm, RMA International, has received $600,000 in payments from Bacardi. Another Reich organization, the US-Cuba Business Council, has received more than $520,000 in US Agency for International Development money for anti-Castro work supporting the goals of the Helms-Burton law. If he's confirmed, Reich would become the key policy-maker interpreting and implementing legislation on Cuba, which he was handsomely paid to promote--a clear conflict of interest.
Reich's only diplomatic credential is his 1986 posting as Ambassador to Venezuela, to which officials in Caracas repeatedly objected. While there, Reich became responsible for the case of notorious terrorist Orlando Bosch, jailed in Caracas on charges of masterminding the bombing of an Air Cubana flight that killed seventy-three people in 1976. In September 1987 Bosch wrote a letter in which he thanked the ambassador as "compatriot Otto Reich" for support--a letter that, after it became public, Reich described in a cable to Washington as "a case of Cuban-Soviet disinformation." When a Venezuelan court ruled that Bosch should be released in late 1987, Reich sent a short "Clearance Response" cable to the State Department's visa office--apparently a request for Bosch to enter the United States. Bosch subsequently entered the United States illegally and was detained on parole violation charges related to terrorism and threatened with deportation because, according to the Justice Department, he had "repeatedly expressed and demonstrated a willingness to cause indiscriminate injury and death." Reich's nomination hearings will provide the first public forum for him to explain the purpose of his "clearance" cable and what role, if any, he played in the first Bush Administration's clearly political decision to drop charges against Bosch and allow him to stay in Florida.
Negroponte has already survived confirmation hearings for two ambassadorships since the Iran/contra scandal and is unlikely to face significant opposition, but Democrats say they are drawing the line at Reich. Senators John Kerry and Christopher Dodd are leading the opposition to Reich on the grounds of his "questionable history." According to Senate aides, opponents plan to put a "hold" on the nomination--a tactic perfected by Helms against Clinton appointments--which will provide time for an investigation, access to classified records and organization of support from farm belt Republicans who understand that Reich's hard-line policy on the trade embargo against Cuba will hurt agricultural interests in their states. The political effort to line up votes against Reich and to seek full disclosure of documents on his public diplomacy operations, ambassadorship and corporate lobbying will begin in earnest after the Senate returns from Easter recess.
In a campaign reminiscent of the successful effort twenty years ago to block Reagan's anti-human rights appointee Ernest Lefever to be Assistant Secretary of State for Human Rights and Humanitarian Affairs, the Center for International Policy, the Institute for Policy Studies and the Washington Office on Latin America, among others, are mobilizing to stop the nomination and are confident they can win. "With so much muck connected to his name and his past," suggests CIP director William Goodfellow, "Reich is an inviting target to show that the Democrats are not dead."
Indeed, failure to block Reich could open the door to ever more noxious foreign policy appointees. Senator Helms's top aide, Roger Noriega, is Bush's lead candidate to be ambassador to the Organization of American States. And at least one conservative religious group is touting pardoned Iran/contra criminal Elliott Abrams as a nominee for a human rights post--ambassador at large for international religious freedom.
Within weeks of taking office, President Bush started to dispense compassionate conservatism with a vengeance. As the first order of business, he moved to give a massive tax windfall to the rich, who got richer in the now-precarious boom economy. By impact and perhaps by design, this would hobble the capacity of the federal government to respond to escalating human need in the harder times that lie ahead. To get a head start on that, Bush asked Congress to shrink funding for Head Start, childcare block grants for poor families and programs to combat child abuse. If this seems like--to use another "c" word--old-fashioned cruelty instead of compassion, it should come as no surprise. The President did his best during last year's campaign, with the complicity of a timid press and a triangulating Democratic Party, to blur his intentions. But the blueprint for the second Bush Administration has been available to anyone who has followed the work of The Manhattan Institute and read its quarterly publication, City Journal.
Two recent books, both published by the Chicago-based Ivan R. Dee, bring together articles originally published in City Journal. At the risk of providing unwitting copy for a rave blurb, they are must reading for anyone who wants a window into the thinking of the people running all three branches of government in these trying days. (Or, as Bill Moyers is quoted as saying on the back of What Makes Charity Work?, "Even when I disagree with City Journal, I dare not ignore it.")
The Manhattan Institute came to prominence around the time of Rudolph Giuliani's election as mayor of New York, and they form a mutual admiration society. Giuliani has praised City Journal for puncturing a "tyranny of political correctness" in New York, which he likens to the Spanish Inquisition. (I thought the Mayor, who just installed a decency panel to monitor arts in city-funded institutions because he was offended by a few paintings at the Brooklyn Museum, and who slashed funds for the 150-year-old Legal Aid Society because it sued him and went on strike, was an admirer of the Spanish Inquisition.) And the Manhattan Institute loves him back. As Heather Mac Donald, City Journal contributing editor and the author of The Burden of Bad Ideas, writes: "From the day he took office, Rudy Giuliani threatened the foundations of the liberal worldview--denouncing identity politics, demanding work from welfare recipients, and above all, successfully fighting crime by fighting criminals, rather than blathering about crime's supposed 'root causes,' racism and poverty."
So far George W. Bush is shaping up as another star pupil. According to an April Washington Post article, Bush adviser Karl Rove considers The Dream and the Nightmare, an earlier book by City Journal editor Myron Magnet--editor of What Makes Charity Work?--a road map for Bush's approach to the role of government.
Neither road map nor blueprint seems quite the right metaphor for what is found in these books, since those imply a plan for getting somewhere or building something. The folks at the Manhattan Institute are more like demolition specialists, as their local hero, Mayor Giuliani, made clear in his call to blow up the New York City Board of Education. Their prescription for failing schools, poor inner-city neighborhoods, inadequate housing and every other shame of a rich industrialized nation is unfailingly the same: Get government out of the way, and let the market and private charity take care of it.
These are lazy books, compilations of recycled articles lightly edited, with slender introductions that do little more than annotate the table of contents. (Consequently, in several cases, the essays read like something from a time capsule: A 1996 Mac Donald essay asserts that California's Proposition 209, "if passed, would return California to color-blind status.") The works of Magnet and Mac Donald are not likely to be passed around in dogeared copies, like those of Ayn Rand, a generation from now. But these books are snapshots in which one can glimpse a way of looking at the world that infuses the thinking of the new President and the people around him. And for that reason, attention must be paid to them.
What is that way of looking at the world? It's deeply nostalgic for a time when the parish priest, the cop on the beat and the Scout troop master kept everyone in line. Criminals weren't coddled, teenage mothers were shipped out of town, and you could take your small son or your mother to the art museum without blushing. Poor people didn't look for government handouts. They climbed out of poverty thanks to temporary private charity that helped them see that their own moral failings were to blame for their problems, not an unfair system.
Magnet's book, with multiple contributors (including Mac Donald; two of the essays in her book also appear in his), devotes the first several pieces to a look backward. In his introductory essay, Magnet laments that the cultural revolution of the sixties changed traditional charities: No longer did these institutions see the personal behavior and worldview of the poor as the key to improvement of their condition. Turning its attention to an unjust economy and racist society, philanthropy turned into a wholesale--rather than a retail--enterprise. Magnet bemoans that "anyone who sought to help the poor as individuals, one by one, looked hopelessly naïve, as if trying to empty the sea with a spoon."
The first two essays, by William Stern, an official in the administration of New York Governor Mario Cuomo in the early 1980s, celebrate the influence of New York's first Roman Catholic Archbishop, John Hughes, and the Catholic Protectory in the "moral transformation" that lifted Irish immigrants from the lowest rungs of society at the turn of the century. (A different and provocative approach to this subject can be found in Noel Ignatiev's 1995 book, How the Irish Became White.) Stern's conservative sympathies are obvious, but he stays mainly in the past until the end of the second essay ("Once We Knew How to Rescue Poor Kids"). There he reveals his politics, lambasting the modern Catholic Charities for pursuing the "expansion of the welfare state" and ignoring the "central insight that for charity to succeed, it must change the cultural attitudes of its recipients."
Stern has a thing about what he terms confession--the Catholic sacrament called penance when I was a student at Immaculate Conception School, these days repackaged as "reconciliation," in what he undoubtedly would view as a triumph of euphemism. In the confessional, Stern writes, "you must clearly state what you yourself have done wrong. It is the ultimate taking of responsibility for one's actions, and it taught the Irish to focus on their own role in creating their misfortune." Confession has near-magical powers, Stern believes; it turned "impulsive, often criminally inclined, children into personally responsible individuals." Our Saturday afternoon stints in the confessional never had that effect on my friends and me, but I retain an attachment to the core concept that no sin is too great to be forgiven. I don't see much of that spirit among today's "compassionate" conservatives.
The nostalgic reveries in What Makes Charity Work? leave something to be desired as history, because they are invariably cut to fit a contemporary argument. Writing about the "Jewish Victorian" women of the Juvenile Aid Society who helped his immigrant father, Howard Husock calls them "a far cry from today's Jewish philanthropy, which has embraced the Protestant social gospel that religion has a duty to set right the injustices of society." The agency that came to his father's rescue, according to Husock, a director of case studies at Harvard's John F. Kennedy School of Government, "did not engage in advocacy at all, whether to improve housing conditions, raise wages or even reduce anti-Semitism." He compares it favorably with today's Children's Defense Fund, "advocating social policy but not itself directly helping individual children" (other than the millions who benefit from its lobbying for expanded child health insurance programs or Head Start, that is).
The contemporary argument, right from today's headlines, is the Bush Administration's drive to steer government funds to churches providing social services, the subject of legislation being taken up by Congress in late April. Eyal Press and others have recently done much to debunk the myth that religious providers are more efficient and effective than government in helping the poor. A program that deals with drug addiction as sinful behavior curable through Bible classes--and much touted by the supporters of faith-based approaches to social problems--inflated its success rate and, despite claims, actually costs more to deliver than conventional drug treatment. A North Carolina welfare-to-work program run by a local minister would have no chance of success but for state childcare funds and support services from an array of secular agencies. But even if every church-run drug treatment program, soup kitchen and inner-city parochial school had a 100 percent success rate, and even if their efforts were multiplied ten times over, the gulf between the problem and the resources would still be huge. A 1999 survey of congregations' social efforts found most of them to be short-term and small-scale, and only 2 to 4 percent of church budgets goes to social services.
Mac Donald's book is a series of angry and sarcastic essays attacking not just traditional charities but intellectual "elites" for the myriad ways in which she believes they have ruined contemporary American society. In Mac Donald's world, large foundations, the public health establishment, law school faculties, teachers' unions, social service advocates and museum directors have conspired to undermine old-fashioned values of self-reliance and decency. Together, she argues, these powerful forces have imposed an orthodoxy that few dare challenge.
In her attack on foundations, "The Billions of Dollars That Made Things Worse," Mac Donald focuses on the "liberal leviathans"--Ford, Carnegie, Rockefeller, etc.--because so-called liberal foundations "outnumber conservative ones three to one, and liberal policy groups receive four times as much foundation money as their conservative counterparts." (Somehow, the foundation whose US programs I direct, George Soros's Open Society Institute, escapes Mac Donald's barbs, even though we make grants to many of the same groups as the foundations she condemns--are we doing something wrong?) Although these assumptions are based on highly questionable categorizations of what is right and what is left--foundations like Ford and Carnegie, and many of their grantees, have as many critics on the left as on the right--let's accept for the sake of discussion that the right-wing foundations are outgunned in dollar terms.
Why, then, are we living in a policy landscape determined by their ideas? Why are we debating the size of an inevitable tax cut rather than national health insurance? How much arsenic to allow in the water and not how to strengthen worker safety laws? Maybe it's because the conservative foundations have spent their somewhat more limited funds--the Manhattan Institute, for all its influence, gets by on a budget of $6.2 million, the equivalent of pocket change for any of the larger, more progressive foundations--quite strategically, eschewing demonstration projects for well-promoted shibboleths about the evils of government like--well, like Heather Mac Donald's. As Edwin Feulner, longtime president of the Heritage Foundation (a model for the Manhattan Institute), which provided the blueprint for the Reagan Administration in 1981, told the American Legislative Exchange Council late last year, "It is telling that much of the left's distress about our success is aggravated by the skills we've acquired in marketing ideas." Given the success of the right's agenda, the pervasive whine about its marginalization that Mac Donald typifies is particularly galling. She complains about the professional victimhood of welfare rights and minority advocates, but nobody plays the role better than Mac Donald.
I once heard the leftist-turned-right-winger David Horowitz denounce foundations such as Ford and Carnegie as Marxist to a gathering of conservative funders. I thought it was a joke, but the audience clapped and slapped their thighs in joyous recognition; and in her book, Mac Donald picks up the same theme. A few paragraphs after citing a "former Communist" once on the staff of the Ford Foundation on the "secret anticapitalist orientation" of his fellow program officers, she disdains the call of Peter Goldmark, then president of the Rockefeller Foundation, for a "national conversation to talk with candor about the implications of personal and institutional racism," as if this notion were just another scheme of diehard reds fomenting revolution with the dollars of dead capitalists. As far as Mac Donald is concerned, racism is a thing of the past. Anyone who invokes it today is just making excuses for social pathology or incompetence. She doesn't think much of antibias task forces, citing with approval Stephan Thernstrom's findings that minorities are "overrepresented in the nation's judiciary." In her piece assailing pro bono work on behalf of "left-wing" causes like "expanding entitlements" and "promoting homosexual rights," Mac Donald makes a brief nod to the time when "civil rights litigation had unimpeachable moral authority." (It's hard to know what civil rights litigation Mac Donald would approve of today, since she doesn't cite any.)
If there is one refrain that runs most consistently through Mac Donald's essays, it is that society took a wrong turn when it stopped distinguishing between the deserving and the undeserving poor. A nostalgia for stigmatization pervades her writing: the notion that all families, no matter how troubled, deserve respect "epitomizes contemporary social work's refusal to make moral judgments." Magnet is even more blunt, wanting to separate "the bums and crooks from those trying to live upright lives and improve their condition by effort, sacrifice and self-restraint."
The homeless? They're on the streets, according to Mac Donald, because "the advocates need them to be there. Should society finally decide to end street vagrancy, it could go far in that direction by facilitating commitment to mental hospitals and enforcing existing laws against street living." In other words, whether you lock them up in mental hospitals or prisons, just get them out of our sight.
A particularly nasty passage in Mac Donald's book is aimed at Jack Coleman, the former president of the Edna McConnell Clark Foundation, who spent ten days as a street person in 1983 to get a better understanding of homelessness. When Coleman returned to his home after his days on the street, Mac Donald reports, he drew himself a hot bath, got into it and started to cry. Recounting the story at a conference, Coleman cried again. This moving reaction is dismissed as "four-handkerchief histrionics" by Mac Donald, and at first it's hard to see why she isn't more sympathetic to Coleman's effort to get out of what she would undoubtedly view as an ivory tower, since she has nothing but contempt for advocates who she thinks preach about the poor from the comfortable precincts of the Upper West Side or Berkeley. (I, for one, would like to see foundation presidents shed more tears of their own and cause fewer to be shed by others!) But Mac Donald's antipathy is easily figured out: Coleman's remarks took place at a conference of homeless advocates whose work with the most desperately poor led them to call for stepped-up government responsibility to provide stable housing and employment for those on the streets. Anyone espousing those views has to be discredited at all costs.
Some of the targets Mac Donald picks are easy ones. It's hard to defend education colleges that turn out graduates who have little knowledge of the subjects they are going to teach, massive public education bureaucracies that seem to survive every change of leadership or the corruptions and cruelties of the foster care system. Occasionally she writes about her subjects more in sorrow than in anger, as in her piece about the El Puente Academy for Peace and Justice in Brooklyn. Mac Donald homes in on a course in hip-hop culture to make an argument about the glamorization of graffiti, but she seems to have a grudging affection for the energy of the place.
However, there is little respite in her book from the relentless assault on public institutions of all kinds. Mac Donald praises a Harlem Boy Scout troop, for example, as an antidote to the "chaos in New York's inner-city classrooms." I've been in many dozens of such classrooms in recent years (and not just as a Principal for a Day, which one of Magnet's essayists, City Journal contributing editor Sol Stern, attacks for turning business and other civic leaders into apologists for the public schools), and saw little chaos amid much hope. What chaos there is would be mightily affected by fewer pupils per class, better libraries and labs, and enough books to go around--all things that have nothing to do with the moral fiber of public school students.
There are, to be sure, many idiocies and failings of government policy, and hapless or misguided advocates for social justice. Some of those are chronicled in these two books. But in the parallel universe in which Mac Donald, Magnet and other City Journal writers dwell, government can't do a thing right. What's most striking about this, from authors who claim to celebrate old-fashioned virtues, is its fundamental dishonesty. It's hard to take seriously intellectuals who, in their ideological zeal to discredit government, ignore all contrary evidence: rural electrification programs that transformed the lives of Southern farm families from their medieval rhythms; the Social Security system, which put an end to the grinding poverty that darkened the final years of millions of elderly citizens; the GI Bill, which subsidized education for a generation of veterans, propelling them into the middle class.
Even the vaunted faith of the authors in the private sector disappears the minute those institutions call for greater public--that is, government--responsibility for the poor. That's why the most ferocious attacks in these books are aimed at corporate law firms that advocate federally funded legal services for the poor, religious organizations that call for increased social spending and foundations that support systemic change. And if the poor find the moral fortitude to pick themselves up by their bootstraps, that's fine, as long as their new sense of empowerment doesn't lead them to organize and agitate for rights and economic justice.
Any positive vision about what would make a more just and fair society--or even any recognition that contemporary American capitalism raises any issues of justice or fairness--is absent from the pages of these books. In the end, what they demonstrate is just how bereft of ideas--that is, beyond trashing public institutions and blaming the poor for their poverty--the right is at this moment.
That's the good news. The bad news is: They're running the country.
On the importance of being a "public nuisance."
In one of the most foolish and cruelly ironic urban public policy decisions in recent memory, New York Governor George Pataki and New York City Mayor Rudolph Giuliani are planning to shower a series of subsidies, expected to total more than $1 billion, on the high citadel of self-styled free-market global capitalism, the New York Stock Exchange.
In December the city entered into a letter of intent to assist the NYSE in constructing a new trading floor. The arrangement commits the city to acquire land for the new exchange building, and for the city and state to construct a new trading floor for the NYSE and to grant it tax and subsidized energy benefits. In exchange, the taxpayers receive $10 million in annual rent, which will never come close to reimbursing the city and state for their costs.
The sole purported rationale for this corporate welfare bonanza is to retain the NYSE in New York City. If one were to credit this claim, the gift of more than $1 billion for the purpose of retaining fewer than 6,000 jobs--while not even ostensibly creating new ones--would, even by the corrupt standards of job-retention- blackmail deals between corporations and politicians, set a high-water mark for casuistry. However, the deal is even worse than that description suggests. There is no chance that the stock exchange would leave New York City. When I went on the NYSE floor last year and asked veteran traders about the possibility of the exchange moving to New Jersey, they laughed as they dismissed it out of hand. In addition to the institutional identity and reputation of the stock exchange, its personal connections to Wall Street firms--committed to New York City by history, by the Manhattan residences of many of their principals and employees and by long-term office rental commitments, increasingly sealed by yet other city subsidies--preclude the possibility of a move across the Hudson to become the Hoboken Stock Exchange.
NYSE's New Jersey ploy is nothing more than a ruse for covering public officials using what Justice Louis Brandeis once called "other people's money." As is typical of such arrangements, the corporate-politician conspiracy to ramrod the deal is shrouded in secrecy and in contempt for democratic processes. The city refuses to make available to the public a copy of the letter of intent it signed with the NYSE to proceed with the deal. The architectural plans for the building complex--expected by preservation advocates to generate outrage--remain concealed. The governor forced legislation authorizing the deal to go forward on a super-expedited basis, leaving legislators virtually no time to review the bill. They proceeded to pass it unanimously. New York City Council members also have failed to object to the bill.
The Fourth Estate, perhaps inured to the issue by the steady drumbeat of announcements regarding New York City taxpayer subsidies for big business, has done a less than stellar job covering this boondoggle. The New York Times editorial page endorsed the scheme years ago, when it was first being floated. Recognizing "why some oppose on principle any concession to the blackmailing tactics of businesses that threaten to move unless they get public assistance," the Times concluded that New York had no choice but to succumb. "If New York City refuses to play this game, other, hungrier cities and states will take advantage of that passivity." Apparently, the corporate executives at The New York Times Co. found this argument persuasive. In February the Times and New York City completed their own corporate welfare deal--giving the Times $29 million in tax breaks and other incentives to maintain its offices in Times Square.
It would be hard to script a more brazen and shameless corporate giveaway than a billion-dollar donation to the emblem of global capitalism from a city where nearly one in three children lives in poverty, and public investment necessities go begging. But the final act of the NYSE drama has yet to play out: There is still time for the citizens of New York, and at least one of the candidates seeking to replace Giuliani when his term expires at the end of this year, to demand cancellation of this corrupt deal.
Bill Clinton and George Will so rarely agree with each other that when they embrace the same position, we should be alarmed. This thought came to mind upon realizing that their stances on the Internet and China are interchangeable--despite Clinton's favoring a softer political line than Will on Beijing. When it comes to the web, both espouse what might best be dubbed a neo-McLuhanite approach, or a form of "McLuhanism with Capitalist Characteristics." The medium (the net) is the message (freedom), both insist, but ideally the market and the modem have to work their respective magics simultaneously. There is something appealing about this vision, but it is deeply flawed. And viewing the future through this particular rose-colored lens can lead observers to misunderstand crises in Chinese-American affairs (and in cross-cultural communications), such as those generated by the recent spy-plane fiasco and the 1999 destruction by NATO bombs of the Chinese Embassy in Belgrade.
What exactly is the neo-McLuhanite camp, and why place Clinton and Will inside it? Consider, first, a speech the then-President gave in March 2000 calling for permanent normal trade relations with China. Clinton invoked Earl Warren's claim that "liberty is the most contagious force in the world," then insisted that the "cell phone and cable modem" would help freedom flourish in the new century. "We know how much the Internet has changed America," Clinton said, "and we are already an open society. Imagine how much it could change China." The Chinese government had "been trying to crack down on the Internet," he acknowledged, but this was like trying "to nail Jell-O to the wall."
Flash forward to a column Will wrote during the latest crisis, while the man the Chinese call Xiao Bushi (Little Bush) was proving (as a headline in the Guardian put it) that sorry really is the hardest word. Despite being troubled by Beijing's demand for an apology, the pundit saw hope on the horizon. Henry Kissinger had reported in glowing terms about the "proliferation of 'Internet cafes'" in China, and Will considered these "small businesses" to be "huge portents" of changes to come, since without a "monopoly of information," authoritarian governments collapse.
"Totalitarianism is rendered impossible, and perhaps even tyranny is rendered difficult," Will wrote, "by technologies that make nations porous to information." He then reminded his readers that "China already was becoming porous in 1989," when students there learned about massacres via e-mails sent to them from "American campuses where they had studied and made friends," and it has grown even more porous since. The official media might still try to "nationalize the public's consciousness," he concluded, but the web would undermine this.
Typically, neo-McLuhanite commentaries of this sort take three things for granted: first, that access to the Internet will not just make Chinese citizens more like us but also like us more. Second, that virtual globalization is tantamount to virtual Americanization, so the Internet can do for information what the Big Mac has done for cuisine. And last, that nationalism, at least in virulent forms, is a remnant ideology clung to only by older, less-plugged-in people out of step with the cosmopolitan dot-com generation.
So, what's wrong with this picture? Plenty--at least where Chinese-American conflicts are concerned. This struck me in 1999 (when I happened to be in China and witnessed anti-American protest spurred by the US bombing of the Chinese Embassy in Belgrade) and again this year.
The first mistaken neo-McLuhanite assumption is that when Chinese go onto the web to connect with foreign cultures, they naturally turn to American URLs. Sometimes they do, often they don't. In 1999, when I visited an Internet cafe in Beijing before the anti-American protests began, most of the youths I saw were hooked up to Japanese-style video games. After the demonstrations began, more patrons logged on to news sites, but as likely as not this would be www.serbia.com. Cultural globalization is never about one-way flows, though Americans often forget this, conveniently ignoring the fact that the world's cities are now cluttered not just with KFC franchises but also karaoke bars. American destinations provide some attractive options to netizens in search of adventure, but they are never the only places these globetrotters go.
A second problematic assumption is that visiting American websites will make Chinese doubt their government's propaganda. In the most emotional stages of recent crises, many US magazines, newspapers and on-line zines have showcased China-bashing Op-Eds and editorial cartoons that might well serve to confirm, not undermine, Beijing's rhetoric of victimization. They contain postings supporting the notion that for all our talk of the universality of human rights, we are not above being more outraged by the endangerment of US lives than by the loss of Chinese ones, and supporting the idea that Americans are far too prone to demonize and infantilize China. I actually hope, at certain moments, that my Chinese friends will stay away from the web. What good will it do them to see resurrections of Yellow Peril-type images of bloodthirsty dragons? Or to read the headline at least one paper used for George Will's recent column: "America Shouldn't Appease Its Adolescent Foe"?
Yet another problem with the neo-McLuhanite approach is that there is in fact never a clear line separating nationalists from netizens. There are plenty of plugged-in populists with jingoistic impulses in China (as anyone who has visited its chatrooms can attest). And the same goes for the United States (just visit www.RushLimbaugh.com). Nor does generation make the difference. Some of the nastiest anti-American cyberpostings on Chinese bulletin boards in 1999 came from educated youths. And Wang Wei, the young pilot downed in the brush with the US spy plane, has been described recently in the Chinese media as having traits we associate both with the global netizen (a regular surfer of the web and user of e-mail) and the fervent nationalist (ready to die for his homeland).
Last but not least, neo-McLuhanite rhapsodists often overlook the extent to which old and new media forms overlap and affect each other. Old forms of communication never die, they just get digital makeovers, and new media can easily be integrated into traditional political games. Witness the key role of an exchange of snail-mail letters between Wang Wei's wife and Xiao Bushi in the most recent Chinese-American crisis, the importance of which was magnified by both Chinese TV and CNN coverage. Or consider the use in the 1999 Chinese protests of a new form of wall poster: printouts from websites.
The neo-McLuhanites are certainly right about two things: China is changing dramatically, in part because of new forms of international communication and commerce, and the transformations will continue. But these changes have not and will not take simple and predictable forms. Markets and modems, in the era of the New World Disorder, push and pull people and countries in different directions, and the choices individuals and groups make when faced with novel challenges matter.
It seems fitting to end with an ironic question. Wasn't it Marxist analysts who used to be criticized--albeit sometimes unfairly--for insisting that History flows in a predetermined direction? I, for one, doubt that the new forms of virtual determinism will prove any better at predicting the future in this century than the materialist one spelled out by the author of Das Kapital did in the last one.
If Gen. Augusto Pinochet had not been arrested in England on the night of October 16, 1998, the truth about his crimes would never have been fully revealed and democracy in Chile might have remained in a state of arrested development.
Eight years after Pinochet relinquished power, he still cast a long shadow over Chilean society. The Senate was stacked with his supporters. The Chilean courts lacked true independence. Painfully little progress had been made in restoring democratic rights to the importance they had enjoyed before the military takeover. Although a majority of Chileans hoped that Pinochet would stand trial for the atrocities committed during his rule, the "Senator for Life" benefited from parliamentary immunity and a 1978 amnesty that the military had granted itself. In the face of Pinochet's lingering power, the elected government quickly abandoned its pledge to seek derogation or annulment of the self-amnesty law. Indeed, despite a highly regarded report by a government-sponsored truth commission, proof of Pinochet's own role in the worst atrocities remained largely circumstantial.
Pinochet's arrest by British police, and his seventeen months of humiliating detention, changed all that, unleashing a renewed debate in Chile about the legacy of the military government and rekindling hopes of justice for Pinochet's thousands of victims. Previously timid Chilean judges began looking for chinks in the dictator's legal armor. After decades of silence, Pinochet's former collaborators stepped forward to tell of his role in covering up atrocities, revelations that have had a snowball effect.
The number of criminal cases against Pinochet jumped to dozens, then hundreds. By the time British Home Secretary Jack Straw sent Pinochet back to Chile, ostensibly on health grounds, the myth of his immunity had been totally shattered.
The reinvigorated Chilean courts skirted the 1978 military self-amnesty by ruling that prosecutions of ongoing "disappearances" are not barred, because the crime continues as long as the fate of the victim is concealed. Pinochet could thus be prosecuted for his role in the "Caravan of Death," a helicopter-borne military group that executed and "disappeared" seventy-five political prisoners shortly after the 1973 coup. In a historic ruling last August, the Chilean Supreme Court lifted Pinochet's senatorial immunity. Months later he was formally indicted by a Chilean judge for murder and disappearances and placed under house arrest, something that would have been simply inconceivable two years ago.
At several stages, Pinochet's shrill and seemingly powerful supporters--the military, the wealthy and the principal newspapers they own--sought to create an institutional crisis with gestures of defiance; but each time they backed down in the face of government and popular support for the rule of law.
When Pinochet was questioned about the Caravan of Death by the investigating judge, a historic act in itself, he seemed to pass the buck down the chain of command. This prompted Joaquin Lagos, a retired general who commanded a prison visited by the caravan, to go on television in January--the first time he had told his story publicly. He was graphic: "They took out [the victims'] eyes with knives, broke their jaws, their legs and then killed them." He said he reported the killings in writing to Pinochet, who rather than reprimanding the murderers asked Lagos to alter his report. A week later, Chilean newspapers published a document bearing Pinochet's signature with orders to cover up the torture of a political opponent.
According to Roberto Garretón, a leading Chilean human rights lawyer, "October 16 [Pinochet's London arrest] was fundamental, so that we could at last complete our transition to democracy."
The Pinochet case has inspired victims of abuse in country after country, particularly in Latin America, to challenge the transitional arrangements of five and ten years ago, which allowed the perpetrators of atrocities to go unpunished and, often, to remain in power. These temporary accommodations with the ancien régime did not extinguish the victims' thirst to bring their former tormentors to justice. In Guatemala, a powerful UN-sponsored truth commission report issued in 1999, which charged that the military, with US support, committed acts of genocide against Mayan Indians, has spurred victims to seek redress in the courts of both Guatemala and Spain. In Argentina, years after amnesty laws put an end to "Dirty War" prosecutions, eleven officials, including four members of the military juntas, are either in jail or under house arrest for "baby-snatching," the theft of the children of disappeared mothers; and just weeks ago, on March 6, an Argentine judge boldly struck down the 1987 amnesty laws as a violation of both the national constitution and international law.
At the same time, Pinochet's London arrest reflected, and strengthens, a new (though uneven) international movement--spurred by the twin genocides of the 1990s in Bosnia and Rwanda, and facilitated by the end of the cold war--to end impunity for the worst abuses. After the creation of United Nations tribunals for Yugoslavia and Rwanda, in 1998 the UN voted overwhelmingly in Rome to establish an International Criminal Court to prosecute future genocides, crimes against humanity and serious war crimes when national courts are unable or unwilling to do so. The United States, after failing to win a 100 percent guarantee that no US soldier or policy-maker would ever be prosecuted, was one of only seven countries to oppose the Rome treaty. President Clinton did sign the treaty, however, to remain involved in the court's formation, and though the Bush Administration may be less willing to play along, much less ratify it, the ICC is sure to have the needed sixty ratifications (it now has twenty-nine) within a few years.
"International justice" is already beginning to be a plausible backstop when national justice fails or a perpetrator flees. In Sierra Leone and Cambodia, the UN is preparing to sponsor tribunals together with local authorities. Former dictator of Chad Hissène Habré was arrested on torture charges last year in his Senegalese exile. (The Senegalese Court of Final Appeals ruled in March that he could not be tried there, but human rights groups are now seeking his extradition to stand trial in Belgium.) The Mexican government has agreed to extradite to Spain an Argentine naval officer accused by Judge Baltasar Garzón of torture. A Dutch court is pressing charges against former Surinamese military strongman Desi Bouterse for the 1982 killing of fifteen government opponents. Shadowy Peruvian spymaster Vladimiro Montesinos was surprised to find that in the post-Pinochet world he was denied exile even in Panama, which had acquired something of a reputation as a safe haven for the world's washed-up dictators. (Raoul Cédras of Haiti and Jorge Serrano of Guatemala are there now; in the past it hosted the Shah of Iran.) On March 20, in a landmark ruling, the Inter-American Court of Human Rights said that the amnesty laws of Peru violated the American Convention on Human Rights.
Like Chile's prosecution of Pinochet, Serbia's recent arrest of former Yugoslav president Slobodan Milosevic on corruption charges also illustrates the dynamic interplay between international and national justice. Milosevic's indictment by the Yugoslavia war crimes tribunal, and the international pressure on Serbia to act, certainly facilitated the dramatic move--and like the arrest of Pinochet, the showdown in Belgrade has further weakened Milosevic, who is sure to be discredited even more as details of his crimes emerge. Of course, prosecuting Milosevic in Serbia on corruption charges can never provide justice for the hundreds of thousands of non-Serb victims of wartime atrocities in Bosnia, Croatia and Kosovo, and the international community is right to insist on Milosevic's transfer to The Hague to face trial for his worst crimes.
All these events have revived the debate over what has become known as "transitional justice"--or, as Ruti Teitel phrases it in her book of that name, "How should societies deal with their evil past?" Teitel's book offers a historical and comparative analysis of the problem and, while dense and at times repetitive, raises the key practical, legal and moral dilemmas facing transitional regimes. "What emerges," she writes, is a "pragmatic balancing of ideal justice with political realism." Focusing on the role of the law itself in times of transition, Teitel observes that "legal practices bridge a persistent struggle between two points: adherence to established convention and radical transformation.... the jurisprudence of these periods does not follow such core principles of legality as regularity, generality, and prospectivity--the very essence of the rule of law in ordinary times."
At the heart of the matter is whether to prosecute those who have committed atrocities. Most people would agree that leaders who organize mass murder, torture and the like should be brought to justice. The history of the past fifty years, however, reveals that until very recently, butchers like Pinochet, Idi Amin, Ferdinand Marcos, Anastasio Somoza and Mengistu Haile Mariam were less likely to end up behind bars than a squeegee man from the streets of New York. In Teitel's words, "transitional practices show trials to be few and far between, particularly in the contemporary period." The reason was sometimes pragmatic--these tyrants were offered a way out to induce them to hand over power without making their people suffer further. As Teitel notes, the legal and practical questions are also not trivial. Often the courts are so corrupted that a fair trial is impossible. When the crimes were committed at the regime's outset, there are problems of statutory limitations. It is impossible to prosecute all the perpetrators in criminal regimes, but selective prosecutions can also create injustice.
Enter truth commissions. They were first established in places like Argentina and Chile, where deniable disappearances made truth the first order of the day. But it is South Africa's Truth and Reconciliation Commission that, "though flawed in many ways, has set a high standard for future commissions," in the words of Robert Rotberg in his excellent introduction to the subject in Truth v. Justice, an engaging collection of essays mainly about South Africa. The contributors examine the TRC and debate the fundamental moral question suggested by Amy Gutmann and Dennis Thompson: Can one "sacrifice the pursuit of justice as usually understood for the sake of promoting other social purposes such as...reconciliation"?
The TRC was an explicit political compromise between the broad amnesty that apartheid leaders sought and the prosecutions proposed by the African National Congress, which would have antagonized any hope of a peaceful transition. The ingenious solution was to keep the prosecution option open (some were indeed conducted) but grant individual amnesties for those who came forward and told the truth about their crimes, in public and often on television. This quasi-penal process encouraged confession and transparency. As Ronald Slye says in his essay in Truth v. Justice, the TRC's was "the most sophisticated amnesty undertaken in modern times, if not in any time, for acts that constitute violations of fundamental international human rights." The TRC process has been rightly challenged because it focused not on the apartheid system itself, including massive displacements and the pass system, but on "excesses" that even apartheid considered criminal, like murder and torture. And while there were a number of dramatic examples of victimizers and victims embracing, there was no requirement that the perpetrators atone or ask forgiveness to obtain amnesty. A respected poll showed that two-thirds of South Africans believed that the TRC investigations led to a deterioration of race relations. Nevertheless, "it can safely be said that South Africa is a better country in light of the accomplishments" of the TRC, as Richard Goldstone writes in a short essay in his book. The TRC's major accomplishment, says Goldstone, a leading South African judge who went on to become the first prosecutor of both the Rwanda and Yugoslavia tribunals (about which he also writes), is that no one now can deny the worst manifestations of apartheid.
Yet the human rights movement now faces a "South Africa problem": While the TRC amnesty-for-truth process merits respect as the most honestly designed transitional arrangement short of "real" justice (i.e., prosecution), most of its counterparts around the world are producing or promising a lot more amnesty than truth. The conditions in South Africa, particularly the credible threat of widespread prosecution, which brought all manner of perpetrators forward, are hard to replicate elsewhere, especially in the developing world. At the same time, prosecutions, as we have seen, are much more politically possible than just five years ago.
Yet it seems that because of South Africa, the international community has become blindly besotted with truth commissions, regardless of how they are established and whether they are seen as precursors or complements to justice or, very often now, as substitutes for justice.
According to Priscilla Hayner in Unspeakable Truths, her useful analysis of truth commissions around the world, they are "fast becoming a staple in the transitional justice menu of options." Truth commissions can indeed produce important results. They can uncover hidden abuses and lift the veil of denial, help a fractured country come to grips with its past, provide a platform for victims and propose structural reforms. But to be as effective as the TRC, truth commissions must be independent, well resourced and endowed with subpoena power; must hold public hearings when necessary; and must be able to name the accused publicly. Few commissions today meet these criteria.
Commissions can also lay the groundwork for reparations to the victims in a way that trials probably cannot. My own experience bears out Hayner's observation that "especially for the very poor, the possibility of receiving financial assistance seems to be a primary reason to come forward to give testimony." In Chile the families of those listed by the commission as killed or disappeared (but not those tortured) receive monthly checks for life. In Argentina, litigation before the Inter-American Commission on Human Rights has resulted in payments to families as well as to those wrongly detained or exiled. As Hayner points out, however, "in very poor states, or where hundreds of thousands of persons were killed or disappeared, substantial individualized monetary compensation may simply not be feasible." Indeed, the compensation recommended by the El Salvador and Haiti commissions has never materialized. Even in South Africa, victims remain frustrated in their attempts to win meaningful compensation.
"Reconciliation," on the other hand, even if it could be defined, is too contested an ideal on which to base policy. Many victims, particularly in Latin America, see "reconciliation" without contrition by the perpetrators (or their punishment) as a cruel joke. Argentine journalist Horacio Verbitsky, who spearheads the campaign to overturn Argentina's amnesty law, says that "to try to impose reconciliation between the families of the victims and their executioners would be sadistic from an individual point of view and irrelevant for society. The only solid base on which to build the future is for all citizens to accept the law and its procedures." This echoes David Crocker in Truth v. Justice: "It is morally objectionable as well as impractical for a truth commission...to force people to agree about the past, forgive the sins committed against them, or love one another." On a more practical level, Hayner quotes Argentine activist Juan Mendez as saying that in his country reconciliation "was a code word for those who wanted nothing done."
Yet to many international donors, reconciliation is a feel-good idea, while justice, as we are seeing now in Chile, is a potentially messy affair in which there are not only winners but losers. But the perpetrators of atrocities should be losers. Hayner defines truth commissions as bodies that "investigat[e] politically motivated or politically targeted repression that was used as a means to maintain or obtain power and weaken political opponents." If the leaders used repression to empower themselves, then in an ideal transition they are disempowered, something that trial, conviction and punishment does most effectively.
In the best of cases, of course, truth commissions can lead to justice, and the two are naturally complementary. Hayner correctly notes that in Argentina and Chad the facts compiled by truth commissions were later used by prosecutors. But Hayner, who is regularly consulted in the establishment of truth commissions, too easily brushes off the charge that there is no trade-off between truth and justice. She quotes a Guatemalan minister of defense: "We are fully in support of a truth commission. Just as in Chile: truth, but no trials." (In fact, the Guatemalan truth commission has given impetus to justice efforts.) Into the early 1990s, truth may have been the best the victims could hope for. Today it is increasingly seen by abusive governments as a soft option for avoiding justice.
Sierra Leone, in a somewhat different context, illustrates the folly of trading justice for truth. The brutal civil war waged by the rebel Revolutionary United Front was characterized by the most revolting abuses I have personally witnessed, including the rebels' signature atrocity of cutting off the arms of civilians. A peace agreement signed in July 1999 included, with South Africa in mind, a blanket amnesty and a truth commission. In a historic move, the UN, under pressure from rights activists, backed away from the pact's amnesty, but no steps were actually taken to bring the perpetrators to justice. Not surprisingly, within months the rebels were at it again. Only when they made the mistake of attacking UN peacekeepers, however, was rebel leader Foday Sankoh arrested, and a UN-sponsored tribunal is now being established to try Sankoh and his henchmen.
Truth commissions can also divert international attention and scarce resources from justice efforts. In Haiti, where I worked with President Aristide's minister of justice, we were explicitly told by international donors that they could not fund a special prosecutor's office--the government's priority--because they were supporting a truth commission (whose report, published years after its completion, only confirmed what people already knew about coup-era repression).
It is true that trials are more demanding and costly than truth commissions. Criminal guilt must be proved beyond a reasonable doubt. It's one thing to say that thousands were killed under Pinochet; it is harder to prove his personal guilt in a particular case. But because most commissions rely on victim testimony, they fail to infiltrate the repressive apparatus, which, as we are now seeing in Chile (and as any prosecutor of organized crime knows), is the best way to establish the individual responsibility of top officials. And while truth commissions can elicit broader historical truths than trials, the value of this will depend on whether the crimes were carried out in a manner designed to evade responsibility (say, by disappearances or death squads) or whether, as in Bosnia, Rwanda and Sierra Leone, they were incited and practiced in the open.
At least where they are politically possible, there are other powerful reasons to use trials. Truth-telling, however complete, simply does not adequately address the gravity of many crimes. As Aryeh Neier has argued, the results of a truth process would not have been commensurate to the criminality that took place in Rwanda or Bosnia. Trials are a foundational and forward-looking affirmation that no group, including public officials and the armed forces, is above the law and that the new democracy will not tolerate such behavior. (Teitel argues that they are, at the same time, backward-looking.) Indeed, trials can emphasize that a transition to democracy has been successful by demonstrating that the ancien régime is too weak to impede them. Trials also enable victims to establish or recover their dignity as holders of legal rights. In Haiti, the total impunity with which a small elite literally got away with murder and plunder for generations had left the poor majority assuming that they had no rights. Trials can also (if conducted fairly) juxtapose the meticulous rules of due process with the conduct of the accused. While it was a rich irony that Pinochet, whose war tribunals conducted sham trials and ordered the summary execution of political opponents, would take advantage of the full measure of British rule of law for well over a year, it was precisely in honor of the rule of law that he was prosecuted.
The argument that if perpetrators are threatened with prosecution they will not relinquish power, or will undermine a new democracy, deserves attention. In some negotiated transitions, such as South Africa, this may be true and should impose a responsible caution. In most cases, however (think of Cédras and Duvalier in Haiti, Stroessner in Paraguay, Idi Amin in Uganda, Mobutu in Zaire, Suharto in Indonesia), bloody despots are overthrown or leave kicking and screaming when their time is up anyway. Last year, it was widely argued that to induce Slobodan Milosevic to step down, he should be assured that he would not be prosecuted. No such assurances were made, and he not only gave up power, he is now being prosecuted domestically and is likely to stand trial one day before a war crimes tribunal. Fears of destabilization are often brandished by successor governments that would rather accommodate the ancien régime than invest the political capital in disempowering it further. In Chile, forebodings expressed by opponents of Pinochet's arrest (including the elected government) that "reopening old wounds" would threaten the country's democracy were revealed to be largely a bluff--democracy has in fact been strengthened. In Argentina in 1987, after trials of the top generals threatened to spread to more junior military officers, rebellious officers began a mutiny. In a tense moment for the young democracy, civilians surrounded the barracks and some 200,000 people gathered in the Plaza de Mayo to support the constitutional order. Rather than capitalizing on this public outpouring to strengthen civilian control, President Raul Alfonsín asked the throngs to go home and then halted further prosecutions. While it is hard to second-guess a president with solid democratic credentials faced with a very real revolt, it is undeniable that his path of lesser confrontation led to spiraling military demands, including the eventual pardons of those already convicted, and the consequent weakening of democratic institutions.
While the House of Lords was hearing arguments that would lead to its famous decisions that Pinochet was not immune from torture charges, South Africa's last apartheid president, F.W. de Klerk, was across London releasing his autobiography. "Would an apartheid criminal who has been granted an amnesty...be liable to be prosecuted for crimes against humanity in a non-South African court?" asks Richard Goldstone in For Humanity. Goldstone has "no doubt that such a prosecutor [of a foreign court or the future ICC] should not be inhibited by national amnesties. In international law they clearly have no standing and would not afford a defense to criminal or civil proceedings before an international court or a national court other than that of the country that grants the amnesty. That does not mean that in deciding on an investigation or prosecution, the prosecutor will not take into account" the circumstances of the amnesty. Goldstone sensibly proposes that "an international prosecutor ignore self-amnesties of the kind granted to General Pinochet," which unfortunately are the norm around the world. On the other hand, he suggests that it would be appropriate in the South African case for the prosecutor, in the exercise of his or her discretion, to take into account the fact that the individual amnesties were granted pursuant to a scheme "approved by a democratically elected legislature--a legislature that is representative of the victims of apartheid."
One area begging for a truth commission is US support for atrocities abroad. Because the US public would not have countenanced open and notorious American support for crimes against humanity, there was usually, as in Nicaragua or Chile, a layer of deniability, either about the crimes or about US support or, as in East Timor in 1975, a virtual news blackout. The national truth commissions in El Salvador, Chile and Haiti were disappointingly silent on US complicity. Their counterparts in Guatemala and Chad were less shy. As a result of recent Pinochet-driven disclosures, the fuller US role in undermining Chile's democracy and then in knowingly supporting Pinochet's crimes is coming to light. Proving the individual criminal (as opposed to political) liability in specific abuses of high-ranking American policy-makers such as Henry Kissinger may not be easy and prosecutions politically unlikely (especially as Dr. Kissinger now watches where he travels). But a full airing of US cold war support for abusive forces in places like Chad, El Salvador, Greece, Haiti, Indonesia and Nicaragua (and direct US atrocities in Cambodia, Laos and Vietnam) by an officially appointed nonpolitical panel could establish an important historical record, promote a measure of accountability and, if the United States were ready to apologize (as Clinton recently did to Guatemala), foster a kind of reconciliation with the countries whose people suffered the abuses.
When NAFTA was adopted in 1993, Chapter 11 in the trade and investment agreement was too obscure to stir controversy. Eight years later, it's the smoking gun in the intensifying argument over whether globalization trumps national sovereignty. Chapter 11 established a new system of private arbitration for foreign investors to bring injury claims against governments. As the business claims and money awards accumulate, the warnings from astute critics are confirmed--NAFTA has enabled multinational corporations to usurp the sovereign powers of government, not to mention the rights of citizens and communities.
The issue has exquisite resonance with the present moment. On April 20 thirty-four heads of state gather in Quebec City to lead cheers for a Free Trade Area for the Americas. The FTAA negotiations are designed to expand NAFTA's rules to cover the entire Western Hemisphere. The Quebec meeting should provide good theater but not much substance. Tony Clarke of the Polaris Institute, in Ottawa, says the meeting is intended to be "a face lift for the whole global agenda, by portraying free trade as democracy." Protesting citizens will be in the streets, challenging 6,000 police and Mounties, with an opposite message: Democracy is threatened by the corporate vision of globalization.
Chapter 11 of NAFTA should become a defining issue for FTAA negotiations. Many, including Clarke, vice chairman of the Council of Canadians, believe corporate governance was and is the FTAA's intent. "There is a conquering spirit at the heart of all this," he says, adding that the corporations' attitude is: "We have to get into every nook and cranny of the world and make it ours."
Chapter 11 provides a model of how this might be accomplished. The operative principle is that foreign capital investing in Canada, Mexico and the United States may demand compensation if the profit-making potential of their ventures has been injured by government decisions--"tantamount to expropriation." Thus, foreign-based companies are given more rights than domestic businesses operating in their home country. For example:
§ California banned a methanol-based gasoline additive, MTBE, after the EPA reported potential cancer risks and at least 10,000 groundwater sites were found polluted by the substance. Methanex of Vancouver, British Columbia, the world's largest methanol producer, filed a $970 million claim against the United States. If the NAFTA panel rules for the company, many similar complaints are expected, since at least ten other states followed California's lead. The federal government would have to pay the awards. California State Senator Sheila Kuehl and others have asked the US Trade Representative to explain how this squares with a state's sovereign right to protect health and the environment.
§ In Mexico, a US waste-disposal company, Metalclad, was awarded $16.7 million in damages after the state of San Luis Potosí blocked its waste site in the village of Guadalcazar. Local residents complained that the Mexican government was not enforcing environmental standards and that the project threatened their water supply. Metalclad's victory established that NAFTA's dispute mechanism reaches to subnational governments, including municipalities.
§ In Canada, the government banned another gasoline additive, MMT, as a suspected health hazard and one that damages catalytic converters, according to auto makers. The Ethyl Corporation of Virginia, producer of MMT, filed a $250 million claim but settled for $13 million after Canada agreed to withdraw its ban and apologize.
§ The Loewen Group Inc., a Canadian operator of far-flung funeral homes, lodged a $750 million complaint against the United States, claiming that a Biloxi, Mississippi, jury made an excessive award of $500 million when it found Loewen liable for contract fraud against a small local competitor.
§ Sunbelt Water Inc. of California has filed the largest and most audacious claim--seeking $10.5 billion from Canada for revoking its license to export water by supertanker from British Columbia to water-scarce areas of the United States.
§ Canada's Mondev International is claiming $50 million from the United States because the City of Boston canceled a sales contract for an office building with a shopping mall. Boston invoked sovereign immunity against such lawsuits and was upheld by a local judge and the Massachusetts Supreme Court. The US Supreme Court declined to hear the appeal. So the company turned to NAFTA for relief.
"When just the threat of a Chapter 11 action may suffice to wrest a financial settlement from a government, investors have unprecedented leverage against states," Lydia Lazar, a Chicago attorney who has worked in global commerce, wrote in Global Financial Markets magazine. Mexico, Canada and the United States effectively waived the doctrine of sovereign immunity, she explained, when they signed NAFTA.
As many as fifteen cases have been launched to date, but no one can be sure of the number, since there's no requirement to inform the public. The contesting parties choose the judges who will arbitrate, choose which issues and legal principles are to apply and also decide whether the public has any access to the proceedings. The design follows the format for private arbitration cases between contesting business interests. With the same arrogance that designed the WTO and other international trade forums, it is assumed that these disputes are none of the public's business--even though public laws are under attack and taxpayers' money will pay the fines. The core legal issue is described as damage to an investor's property--property in the form of anticipated profits. The NAFTA logic thus establishes the "regulatory takings" doctrine the right has promoted unsuccessfully for two decades--a retrograde version of property rights designed to cripple or even dismantle the administrative state's regulatory powers. "NAFTA is really an end run around the Constitution," says Lazar.
The fundamental difference in Chapter 11, unlike other trade agreements, is that the global corporations are free to litigate on their own without having to ask national governments to act on their behalf in global forums. Clearly, some of the business complaints so far are more exotic than anyone probably anticipated. These initial cases will set precedents, however, that major global firms can apply later. If nobody stops this process, the national identity of multinationals will become even weaker and less relevant, Lazar points out, since they have status to challenge government as "an open class of 'legal equals.'"
In Canada a private lawsuit was filed recently challenging the constitutionality of Chapter 11, since Canada's Constitution states that the government cannot delegate justice to other bodies. The Canadian government, itself embarrassed by the cases against it, expressed doubt that Chapter 11 should be included in the hemispheric agreement, though it appears to be backing away from outright opposition. In US localities, the cases are beginning to stir questions, but lawmakers and jurists are only beginning to learn the implications.
Does George W. Bush understand what he is proposing for the Americas? Did Bill Clinton and Bush the elder understand the fundamental shift in legal foundations buried in NAFTA's fine print? They knew this is what business and finance wanted. As the public learns more, the smoking gun should become a focal point in this year's trade debate, confronting politicians with embarrassing questions about global governance. Who voted to shoot down national sovereignty? Who crowned the corporate investors the new monarchs of public values?
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