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Osmín, a Cuban trucker, is living in Florida legally--but that
didn't matter to the department of motor vehicles. When he was stopped
on May 2 by a policeman who wanted to see the permit for a job he was
working on, as well as his license, he handed over all the necessary
papers. Although they were in order, he was sent to the driver's-license
office because the document granting his temporary stay will expire
later this month. When dutifully checking in at the DMV the next day, he
explained that his application for permanent residency is pending,
allowing him legal stay until it is resolved. But the clerk, guided by
the governor's new antiterror restrictions, didn't understand the
intricacies of his immigration status. He confiscated Osmín's
license--good until 2007--and sent him home, unable to drive and unable
to work. "I feel very bad," said Osmín (who didn't want to have
his last name used out of fear it might harm his residency application)
the following workday, stuck inside. "I have to pay my bills, I've lost
a complete day of work and I don't know when I'll get my license back."

Spurred on by post-September 11 fears, more than a dozen states, from
Colorado to Delaware, have passed or are considering restrictions on
issuing driver's licenses to noncitizens. Some, like Georgia, Minnesota
and New York, may tie license expiration dates to the expiration of
immigration papers, as Florida, New Jersey and Kentucky do now.
Florida's Department of Highway Safety and Motor Vehicles now sends
records of all its transactions to the FBI every night. A Michigan bill
would authorize DMV staff to contact federal authorities if there is
"reasonable cause" to believe an applicant is an illegal alien. Even
legal refugees from Bosnia or El Salvador can get tripped up in the new
red tape. "If you make it difficult for people to get a driver's
license, you're going to get a lot more people driving without a
license, and we might have more uninsured drivers on the road," says Ben
Johnson, associate director of the American Immigration Lawyers
Association. "Getting tough on driver's-license law isn't going to make
the country any safer."

Declaring his state's enlistment in a "war against illegal immigration,"
South Carolina Attorney General Charlie Condon introduced legislation to
have local cops enforce federal immigration laws. Florida is working
with the Immigration and Naturalization Service on a groundbreaking plan
to deputize police officers as INS agents. "This gives police another
legal hook to justify their profiling and will prevent illegal
immigrants from reporting crimes against them," says Dan Kesselbrenner,
director of the National Immigration Project of the National Lawyers

Heightening surveillance of foreign students, bills pending in
California, Minnesota and Georgia, and a new Virginia law, would require
colleges to report noncitizens to the INS if they repeatedly miss class
or withdraw. An Oklahoma measure would prevent noncitizens from
enrolling in flight school. "While everybody's in the patriotic mood,
people's tolerance level is a little bit lower," says Lena Lee, a
research assistant for South Carolina's House of Representatives,
describing a bill to restrict university enrollment of students who come
from a "state sponsor of international terrorism" as determined by the
US Secretary of State. "The rush is on to get the legislation out.
People are kind of blindly doing it--with good intent."

Oklahoma's Joint Homeland Security Task Force even brought up blocking
foreign students from certain courses. Representative Bill Paulk, a task
force member, said legislators are particularly worried about nuclear
design and computer classes. "Obviously," he said, "there are some
courses you would not want foreigners to take."

For more than a century, a recognizable pattern existed among those
migrating to New York City: They came first either through Ellis Island
or up from the American South, and more recently via JFK. As the
newcomers quickly helped build larger communities, they began to occupy
distinct places in the mental and physical geography of the city.

Yet the fastest-growing migration of the past few decades into the city
severely complicates the demographic pattern to which most New Yorkers
are accustomed. Mexican migrants, whose (counted) ranks nearly tripled
to 275,000 between 1990 and 2000, are indeed coming in significant
numbers, but they are staying for quite varying amounts of time and
inhabiting quite varying parts of the city. Spatially, there is no
Mexican equivalent of the Puerto Rican neighborhoods of the Bronx, or
the Dominican enclave in Washington Heights. That the vast majority of
those who come across the Rio Grande are undocumented also suggests that
it may be a while before the Mexican community will have a direct voice,
either politically or via organized labor, in city affairs.

Enter Jimmy Breslin. Yes, the same pugnacious figure familiar to New
Yorkers for his four decades as a muckraking columnist, and to national
audiences most recently for his intro to Spike Lee's Summer of
. Could there be a better guide to the new pattern of immigration
than Breslin? From a scholarly standpoint, the answer would obviously be
yes--the recent work of Arlene Dávila and Agustín
Laó-Montes, Nancy Foner and others is a good place to start. Such
scholarship shows that the current wave of immigration fits no one mold,
with some groups, particularly Mexicans, establishing a transnational
pattern of going back and forth to their home countries, thus making it
impossible even to identify a single unified process of Latino
immigration. But from the perspective of gritty, everyday, street-level
New York, or at least that fast-disappearing world of tough talk and
no-nonsense reporting, Breslin has no match as a firsthand observer of
the newcomers' place in the city's social hierarchy. Ultimately, the way
Breslin, an older, working-class Irish-American, grapples with the new
migration tells us more than a little bit about the changing meaning of
the American dream.

Breslin's new book, his eighth nonfiction work, tells of The Short
Sweet Dream of Eduardo Gutiérrez
. Gutiérrez, an undocumented Mexican
laborer, died in a 1999 construction accident in the Hasidic
neighborhood of the Williamsburg section of Brooklyn. For Breslin,
Gutiérrez's story not only typifies the hardships that Mexican
migrants face in coming north but shows how harsh the working conditions
are when they arrive. Gutiérrez, in other words, hardly lived the
life of a latter-day Horatio Alger. Instead of fortune, the city
provided only loneliness and a gruesome but entirely preventable death
in a cement foundation.

Gutiérrez's tragic demise sets Breslin on course to discover the
origins of what would otherwise have been yet another mostly forgotten
existence. Breslin goes to central Mexico, to the small town of San
Matias (near Puebla), to recapture Eduardo's life and surroundings
there, and then follows his tortuous journey north across the border,
before arriving in Brooklyn. In the process, Breslin accomplishes twin
goals: to show how Mexican migrants are increasingly making their way
well beyond the Southwest, steadily transforming the demographics of
Midwestern and Northeastern cities; and, more dramatically, he
illustrates how that migration probably has more in common with the
Middle Passage than with any of the heroism now accorded to the
immigrant journey through Ellis Island.

Breslin opens with a series of outsider's observations of life in
impoverished San Matias. Ninety percent of Mexican children will never
go to school beyond the sixth grade, and instead go to work, which in
places like San Matias is sporadic and pays almost nothing. Thus, as a
result of stories told by relatives and others within their community,
the young of San Matias live their lives with pictures of American money
in their heads. And "such poor, dark-skinned children," Breslin
observes, soon become the young adults who are migrating along with
counterparts from India, China and elsewhere to become New York City's
new majority, by which he essentially means people of color.

Getting here from San Matias is no mean feat. After hearing from his
girlfriend Silvia's brother-in-law of construction work in Brooklyn that
paid $6 or $7 an hour (to undocumented Mexicans), less than one-third of
what unionized American workers receive, Eduardo was tempted to go
north. After Silvia, only 15, told him that she was headed for Texas,
Eduardo, four years older, had even less reason to stay home. Breslin
then vividly re-creates both journeys, supplementing the two stories
with documentation of parallel dangers that Mexican migrants experience
every day: dangerous coyotes (smugglers), rattlesnakes, heat exhaustion,
drowning in the Rio Grande, suffocation in a tunnel leading to Tijuana,
getting hit by a train in Texas or a car in San Diego, local police,
airport security and, above all, the Border Patrol. Thus harrowed, both
Silvia and Eduardo nevertheless do land safely: the former in Bryan-College Station, Texas, where she works at both the Olive Garden and a
barbecue joint; and the latter initially at JFK, only after being
delivered COD by a coyote on a flight from Los Angeles.

Sympathetic as the author is to the courage and struggles of those who
endure such hardship in coming north, there are still some troubling
dimensions to Breslin's account, particularly in his somewhat simplistic
choice of terms to describe the process. He so often uses "the Mexicans"
as the subject of his sentences that one begins to fear Buchananesque
calls for big walls along the border (fortunately, they are not there).
Breslin also far too simplistically refers on many occasions to how
Mexican migrants are lured by The Job, and at one point riffs: "They
come across the riverbanks and the dry border, those people who want to
work, who want to scrub floors and clean pots, or mow lawns." Yet as his
own telling of Silvia's double shifts in El Paso and of Eduardo's later
job-hopping in New York suggests, the specific work matters much less
than the simple fact of a paycheck. Migrants seeking wages who will
accept the least-desirable work is surely more accurate than talk of
Mexicans who want "The Job," but then again, drama is Breslin's primary

Once away from the airport, Eduardo enters a frighteningly impersonal
city, and here Breslin emphasizes the changing meaning of the
contemporary immigrant experience: "Once, they came in dreadful old
ships, from Magilligan in Northern Ireland, from Cobh in southern
Ireland, from Liverpool and Naples and Palermo and Odessa.... Those able
to stand always scoured the horizon for the first look at a city where
the streets were decorated, if not paved, with gold." The numbers of
subsequent nonwhite migrations, particularly those of Puerto Ricans and
Dominicans, are missing from Breslin's litany, which illustrates the
degree to which the traditional mythology of immigration into New York
City needs to be rewritten continually. But here as elsewhere, Breslin
should be indulged, for the experience of Mexican immigrants in New York
is skewing more than a few familiar demographic patterns.

Eduardo's experiences in Brooklyn illustrate some of the unique features
of contemporary Mexican migration. He settles with a handful of others
from San Matias in Brighton Beach, an area whose Eastern European Jewish
identity grew rapidly with the influx of Russian and Ukrainian
immigrants in the early 1990s. On a few occasions, he and a friend would
go to Sunset Park, an increasingly Latino neighborhood and one of the
few areas of the city with a visible Mexican presence. Indeed, as the
ongoing research of John Mollenkopf and others demonstrates, even though
their ranks are growing rapidly, Mexican migrants are tending to favor
heterogeneous ethnic neighborhoods rather than grouping together.
Breslin's re-creation of Eduardo's life in the city may help explain one
of the reasons this is so. As Eduardo and his roommates drink a few
beers after a long day's work, they reminisce of home and discuss plans
to go back. That so many do go back and forth, perhaps, diminishes the
necessity for those who stay to form distinct neighborhoods of their

Those working here as undocumented laborers also face conditions hardly
conducive to sticking around. Despite repeated building-code violations
elsewhere in the neighborhood, a slumlord named Eugene Ostreicher was
able to continue building in South Williamsburg, using undocumented
Mexican laborers like Eduardo. While working for Ostreicher in November
of 1999, Eduardo poured cement on the third and top floor, which was
supported by only three flimsy, improperly fastened beams; the structure
soon collapsed, and Eduardo drowned in cement three floors below.
Breslin thus takes aim at a variety of targets: Ostreicher, who was slow
to face punishment, and whose cozy relationship to City Hall (via Bruce
Teitelbaum, ex-Mayor Rudolph Giuliani's liaison to the Hasidic
community) had allowed him to keep building despite past violations; the
city's Department of Buildings, a bastion of frightening corruption and
inefficiency; and, to a lesser extent, the construction unions, which
allow the use of nonunion labor. Some of Breslin's examples do seem
tangential, like his discussion of a phony Pell Grant scheme run by
Ostreicher's Hasidic neighbors, or of Mayor Giuliani's war on sex shops.
But there is no doubting Breslin's crusading spirit, and he's always
good for a memorable barb or two--as when he reminds us that pre-9/11,
Giuliani did "virtually nothing each day except get into the papers or
to meet girlfriends."

As the book closes, with Eduardo dead and Ostreicher facing minimal
punishment at best, the meaning of the former's sweet dream is
uncertain. He came to New York with a desire only to make enough money
to go home, perhaps with Silvia. But now he is sent home in a casket
paid for by the Red Cross and the Central Labor Trades Council, the
latter doing so to "get into the newspapers." Though by no means the
first group to come to America with the primary goal of making money in
order to take it back home, Mexican migrants find a labor market that is
increasingly transient, unregulated and brutal. Still, despite the
hardships, they are helping to create a new, transnational version of
the American dream. It is a story that we all need to consider, and
Jimmy Breslin has successfully helped open the door.

"I have concluded that we should attempt to achieve normalization of our
relations with Cuba," Jimmy Carter proclaimed in a secret Presidential
Directive shortly after taking office in 1977. With that signed order
Carter became the first and only US President to make a rapprochement
with Fidel Castro's revolutionary government an explicit goal of US
foreign policy. Although his Administration succeeded in negotiating the
creation of "interest sections" in Havana and Washington, Carter's
objective "to set in motion a process which will lead to the
reestablishment of [full] diplomatic relations" eventually fell victim
to the cold warriorism of his national security advisers.

Twenty-five years later, when Carter became the first US President to
travel to Cuba, meet Castro and address the Cuban people, he again
called for normalization of relations. His historic five-day visit, May
12-17, has dramatically renewed the national debate on US policy toward

What the former President described as "an opportunity to explore issues
of mutual interest" has mobilized almost every conceivable interest
group--commercial, political, humanitarian--across the ideological span
on a gamut of contentious issues relating to Washington's approach to
Havana. As the Pope did during his visit to Cuba in 1998, Carter has
astutely managed to simultaneously draw attention to the archaic nature
of the forty-year US embargo on trade and travel, to the merits of civil
dialogue, and to human rights and democracy.

Carter's trip was carefully scripted to balance competing political
interests as well as his own multifaceted personal agenda. Before he
announced his travel plans, Carter dispatched emissaries to Washington
to discuss with numerous NGO and lobbyist organizations the merits of
such a visit; he then received a comprehensive intelligence briefing
from the Bush Administration and a steady flow of delegations and
specialists at the Carter Center in Atlanta, who shared their expertise
on Cuban issues. Pro-dialogue coalitions like the Cuban American
Alliance Education Fund issued statements signed by numerous grassroots
organizations in "full support [of Carter's] initiative for dialogue."
The rabidly anti-Castro Cuban American National Foundation criticized
him for entering into "discussions with the Cuban regime, thereby giving
[it] a measure of legitimacy."

In Cuba, Carter's schedule included three meetings with Castro, two
state dinners, a baseball game and visits to Havana's most prestigious
schools, laboratories and hospitals, as well as meetings with Cuba's
leading dissident, Elizardo Sánchez, and Oswaldo Paya, the
organizer of the Varela Project--a petition drive to reform political
and economic structures. Most significant, in a live nationally
televised address to Cuban citizens from the University of Havana,
Carter carefully underscored the themes of changing both US policy and
Cuba's socialist political system. US-Cuban relations, he said, had been
"trapped in a destructive state of belligerence for forty-two years,"
and he called on Washington to "take the first step" by lifting the
embargo on trade and travel. At the same time, he called for the
"fundamental right" of free speech and association in Cuba, and for
Cubans to be allowed to "exercise this freedom to change laws peacefully
by a direct vote."

For the Cuban government, what Carter said was far less important than
the spirit of recognition and mutual respect in which he said it. As the
only one of the ten US Presidents Castro has faced over the past
forty-three years who has come to the island, Carter got the red carpet
treatment--symbolic and real. A Cuban band played "The Star-Spangled
Banner" when he arrived, and Castro made it clear that there were no
conditions on his visit. "You can express yourself freely whether or not
we agree with part of what you say or with everything you say," Castro
stated in the reception ceremony at the airport.

When Castro first issued his invitation to Carter to visit Cuba, in
October 2000, George Bush had not yet been elected. Now, with a White
House that, as the Wall Street Journal recently described it,
"sees a President whose bacon was saved in Florida in 2000 by the
Cuban-American vote," Carter's trip has taken on a whole new political
cast. Since the Administration could not find any grounds to block his
visit, it tried to undercut Carter by sending Under Secretary of State
John Bolton to the Heritage Foundation to proclaim, "Cuba's threat to
our security has been underplayed" and to allege that Castro had "a
limited offensive biological warfare research and development effort"
that Cuba was sharing with "rogue states." Carter exposed this canard,
and infuriated the Administration, by using his visit to Cuba's leading
biotech facility, on May 13, to share the results of his pre-travel US
intelligence briefing with Cuban scientists and the US press corps: He
had asked the CIA if there was any evidence that Cuba was sharing any
information that could be used for terrorism, "and the answer from our
experts on intelligence was no."

The Bush Administration clearly fears the impact of Carter's trip. In an
effort at damage control, the White House promptly scheduled a speech in
Miami on May 20, at a fundraiser for brother Jeb's re-election campaign,
in which President Bush will express his presidency's hostile policy
toward the Cuban government and, lest US citizens get ideas from the
Carter visit, outline plans to further restrict travel to Cuba.

In tact and in substance, the Carter trip stands in stark contrast to
Bush's political diatribe. His visit cannot help but contribute to the
momentum on Capitol Hill, and throughout the country, to rethink
Washington's retrograde approach to Havana. This past fall Cuba made its
first cash purchase of US foodstuffs in forty years. As trade barriers
are slipping, a bipartisan coalition in Congress--the Cuba Working
Group, led by Arizona Congressman Jeff Flake--has organized a task force
to begin breaking up the embargo piece by piece. Its first focus is on
an amendment to the Treasury appropriations bill to free travel to the
island--legislation that is likely to get a significant boost from
front-page New York Times photos of Jimmy and Rosalynn Carter
walking through charming Old Havana.

"The point is that engagement is more likely to encourage Cuba in the
direction of reforms than unrelenting confrontation," says Wayne Smith,
who served as the Carter Administration's first chief of the new US
interest section in Havana from 1977 to 1981. That point is obviously
lost on Bush. But it isn't lost on his predecessor in the Oval
Office--or on the majority of Americans, who believe that diplomatic
dialogue is far more likely to advance US interests than pandering to a
constituency in Florida to get the President's brother re-elected as

I arrived here in Chile May 8 as a material witness in a criminal
complaint against former dictator Gen. Augusto Pinochet for the murder
of an American friend just days after the 1973 coup. But by the time the
week was over, I found myself giving face-to-face testimony against one
of the former top officials of the US Embassy in Chile and--in
effect--against former Secretary of State Henry Kissinger.

The last time I had seen former US Consul General Fred Purdy was on the
morning of September 17, 1973, when I and a handful of other young
Americans living here at the time stood nervously outside his office and
pleaded with him for some sort of US protection. Six days earlier
General Pinochet's military had seized power, declared a state of
internal war and unleashed a ferocious and bloody spasm of terror and
murder. But a gruff, impatient and profane Purdy snubbed our plea and
literally pushed us back into the chaotic streets, telling us we had
nothing to fear from the new military regime--and that the US embassy
could and would do nothing for us.

We would soon learn that at about the same hour we were begging Purdy
for help, a truckload of Chilean troops had kidnapped our fellow
American Charlie Horman from his home a few miles away. Within
forty-eight hours Horman was summarily and secretly executed. As
memorialized in the 1982 Costa-Gavras film Missing, his body
wasn't found for another month, and his killers were never identified.
Within days of Horman's execution, another young American friend, Frank
Teruggi, was also seized and murdered by Chilean forces. And Chile was
plunged into the seventeen-year nightmare of Pinochet's military
dictatorship that stamped out at least 3,000 other lives and sent nearly
a million into exile.

Purdy has never admitted he was wrong, and it's likely he still believes
he never made a mistake. US policy-makers from Henry Kissinger in the
1970s to Otto Reich, George W. Bush's top man on Latin America, have
always been quicker to praise Pinochet for his fealty to American-style
free-market economics than to condemn him for his butchery.

Now, however, Judge Juan Guzmán Tapia--the courageous Chilean
magistrate who last year indicted Pinochet on kidnapping and murder
charges--is helping set the historical record straight. At the behest of
Charlie Horman's widow, Joyce, Judge Guzmán opened a formal
criminal probe into the circumstances of Horman's death, including any
US role. As a witness in Judge Guzmán's chambers for three days,
I was asked to confirm under oath that in the wake of the military
takeover, Purdy and the embassy turned their back on Americans in
need--especially Americans thought to have been sympathetic to Socialist
President Salvador Allende, deposed in the coup.

Under Chile's arcane Napoleonic legal system, Purdy, who now lives in
Santiago, was subpoenaed for a careo--forced to be personally
confronted by me in the presence of the judge. Purdy, now 73, may be
visibly aged but he is the same truculent functionary I remember from
that morning twenty-nine years ago. His objections to my testimony were
loud enough to be heard by others in the waiting room outside the
judge's chambers. He vociferously argued that he had done everything
possible to save American lives in the aftermath of the coup and that
Horman could not be rescued, primarily because he had never sought the
help of the embassy. In recent declarations to the Chilean press, Purdy
had claimed--with no substantiation--that Horman might have been picked
up because he was friendly with an armed ultraleft group. So here we
were, back to 1973. According to Purdy, honest people had nothing to
fear from the Chilean military.

But Judge Guzmán was clear. "I have to tell you, Mr. Purdy," he
said calmly, "there are indications you were involved in a cover-up and
that you have not been fully forthcoming with the investigation." Judge
Guzmán then officially declared Purdy inculpado--a
"suspect"--in his investigation.

Thus Purdy becomes the first former US official to face possible
criminal penalties in a case arising from the 1973 Chilean coup.

Infuriated by the judge's ruling, Purdy stomped from the chambers and
angrily confronted a waiting claque of courthouse reporters. With TV
cameras rolling, Purdy--pressed to explain his behavior in 1973--grabbed
a reporter by the arm and shouted in an odd Spanish-English mix,
"Momen-fucking-tito!" Purdy's indignation, featured
prominently in Chilean newscasts, takes us to the moral center of this
story. Purdy was shocked that a US official might actually be held
responsible in a foreign court for crimes perpetrated by US policy. The
obscure Purdy is now an important symbol in the quest for international
justice. If the "Pinochet principle" established that former heads of
state lack immunity from human rights violations, then so do ex-consuls

Purdy was caught in Guzmán's net only because he retired here and
could not escape a Chilean subpoena. But Guzmán's bigger targets
are sixteen other former US officials, including US Ambassador to Chile
Nathaniel Davis and Kissinger. More than a year ago, Guzmán
requested that Washington make these officials available. Only by
questioning them can anyone begin to answer key questions like what the
US government did or did not know about the murder of its own citizens
and to what degree functionaries like Purdy were following a State
Department line of cover-up for the Pinochet junta. So far Washington
hasn't responded to Guzmán's request. Kissinger told a British
audience in late April that while "it is quite possible mistakes were
made," a certain number of errors are inevitable and "the issue is
whether, thirty years after the event, the courts are the appropriate
means by which determination is made."

Some pieces of the Horman puzzle that have emerged from thousands of
pages of recently declassified documents indeed point to some level of
US involvement. "There is some circumstantial evidence to suggest US
intelligence may have played an unfortunate part in Horman's death,"
reads one State Department memo, obtained by the National Security
Archive. "At best it was limited to providing or confirming information
that helped motivate his murder by the GOC [government of Chile]. At
worst, US intelligence was aware that GOC saw Horman in a rather serious
light and US officials did nothing to discourage the logical outcome of
GOC paranoia."

The Chileans might have been paranoid, but Washington was coldly
calculating. The Nixon Administration found it more compelling to
support Pinochet's regime than to fully investigate and solve the murder
of its own citizens. In early 1974, shortly after Horman and Teruggi's
bodies had been found and Pinochet's blood orgy was rising to fever
pitch, the State Department official in charge of Latin America, Jack
Kubisch, had a private meeting with then-Chilean Foreign Minister Adm.
Ismael Huerta. A confidential US Embassy cable to the State Department
reports that in that meeting "Kubisch raised this subject [of Horman's
murder] in the context of the need to be careful to keep relatively
small issues in our relationship from making our cooperation more

The multilingual Judge Guzmán exudes erudite refinement. The son
of a well-known poet, bearded and partial to blazers and regimental
ties, Guzmán seems more the country squire than crusading
magistrate. But his patience and polish, his deliberate
even-temperedness, have led not only to indictments of the
once-untouchable Pinochet but also of fifty-five other Chilean officers.
As he ushered me into his chambers, he stopped first to shake the hands
of several suspect former and active police officials he had cited who
were waiting in an adjacent room. "Sometimes it is very difficult to
have to treat these men you know are criminals and murderers as
gentlemen," he said. "But that's why we have laws to punish them."

In accord with those laws, Guzmán says that if the United States
doesn't act soon on his request to gather testimony from Kissinger and
other US officials, he'll have no choice but to file for their
extradition to Chile. Kissinger could satisfy Guzmán's request by
testifying before a US judge, who would ask the questions Guzmán
wants answered. Guzmán doesn't want to indict Kissinger; he only
wants to hear his testimony on these supposedly "relatively small
issues." But there's a better way: Kissinger should get on a plane to
Santiago and spend a few hours with the judge to help clear up these
crimes. And he can be sure that Judge Guzmán will, at all times,
treat him strictly as a gentleman.

State officials rush to declare their own versions of the "war on

In anticipation of the Second Coming, evangelicals leap to Israel's

Likud says it does not anticipate
That Palestinians will have a state.
So they, in turn, are meant to stop this shrying,
And try to make their peace with occupying.

It is probably safe to say that the war crimes trial in The Hague of the
former Serbian dictator Slobodan Milosevic is not going well. At least
so far. No credible witnesses have come forward to testify against the
man who is credited with starting four Balkan wars. No documentary
evidence has been advanced to prove his "command responsibility" for
murderous ethnic conflicts. The prosecution's bungling has turned what
was once touted as a "water-tight case" into a battle of wits, allowing
Milosevic to mount a fifth war--legal and psychological--against the
court itself.

It is, of course, an uneven battle. The court is supported by the might
of the United States and its vast eavesdropping and
intelligence-gathering facilities. Behind the scenes, Americans have
tried to induce some of Milosevic's former henchmen to testify against
him. (That includes the notorious paramilitary leader known as Arkan,
who was gunned down inside the Belgrade Intercontinental two weeks after
he lunched there with an American intermediary for the CIA.) Publicly,
the United States has linked all financial assistance to Serbia to the
extradition of suspected war criminals; the hope is that some of them
may provide the needed information about Milosevic's "command

The former dictator, on the other hand, has to rely mainly on himself,
his wife and a few supporters. The image of a solitary individual
standing up against the world not only appeals to his vanity but also
seems to energize him. His defense strategy is brilliantly cunning,
designed to play on Serbia's psychological vulnerabilities and continued
Serb resentment of the 1999 NATO bombing. From the outset he has said
that the court is illegal, that it is NATO's victors' justice and that
he would not accept its judgment. Yet, acting as his own defense
attorney, he has used the tribunal as a stage for his antics, playing
the role of a defiant David to NATO's Goliath, the victim of powerful
foreign enemies, and in the process doing all he can to make his a trial
of the whole Serbian nation.

Opinion polls suggest that his strategy is working in Serbia. Even
though four out of five Serbs want to see Milosevic tried
in a Serbian court for crimes committed against his people, a majority
applaud his stand at The Hague.

This is unfortunate. This public perception is likely to discourage
potential witnesses from coming forward. In the absence of compelling
evidence against him in court, Milosevic's political rehabilitation becomes a distinct
possibility. More significant will be the impact on the world's first
permanent court--which is to be established also in The Hague--to
replace ad hoc courts like the one sitting in judgment of Milosevic. But
it is up to the ad hoc tribunal to come up with the precedent-setting
legal standard of "command responsibility" (the conditions under which a
tyrant, even if not directly involved, can be held responsible for
crimes committed by his subordinates).

This raises several broader questions: What sort of justice, exactly, is
being served in The Hague? Why is it that the prosecution, having
claimed to have a water-tight case, appears to be flailing in the dark?
Was the court manipulated by the Clinton Administration? What exactly
was the secret intelligence that the United States and British
governments supplied during the 1999 Kosovo war to prompt the court to
indict Milosevic?

Louis Sell is one of those rare anonymous State Department officials who
venture to write books in their retirement. He was highly regarded by
his superiors and held the rank of political counselor in two major
embassies: Belgrade and Moscow. His tour in Belgrade, from 1987 to 1991,
coincided with Milosevic's rise to power and the outbreak of war in
Yugoslavia. This has placed him in the middle of things. Scores of
secret cables, sensitive intelligence reports, raw National Security
Agency telephone intercepts and even satellite photos landed on his desk
each day. He not only had access to everything the analysts and spooks
produced on the Yugoslav crisis but was one of the few people capable of
placing such material
in the proper context. (He had served in
Yugoslavia in the 1970s and is fluent in Serbo-Croatian.) He returned to
the region in 1995 as political deputy to former Swedish Prime Minister
Carl Bildt, then the European Union's chief negotiator for the former
Yugoslavia. After the Kosovo war, Sell served as director of the
International Crisis Group in Kosovo.

By background and experience, Sell is a bureaucratic insider. Unlike the
more senior officials--Richard Holbrooke or Gen. Wesley Clark--he has no
need to defend his reputation. Nor is he a man prone to
self-glorification. His twenty-eight years in the State Department
conditioned him to shun the limelight. This may be why he could
apparently not bring himself to give the reader his own take on events.
Instead he has chosen a journalistic format, relying mainly on published
sources--news dispatches, opinion columns and books. This was a poor
choice. He knows far more than most authors he quotes in his Slobodan
Milosevic and the Destruction of Yugoslavia

Indiscriminate reliance on Western press reports is risky. For example,
Sell reproduces a German tabloid story about Milosevic's alleged
involvement in drug trafficking. Far too often he resorts to "Western
journalists" as the only source of this or that information; far too
often the phrase "everybody knew that..." crops up in the narrative as
the sole source for a given Serbian crime. Although he tries to write
dispassionately, his anti-Serb bias gets in the way from time to time.
In one instance, he writes that the high command in Belgrade sanctioned
the July 1995 attack on Srebrenica; the source for the assertion is a
book published in 1994. Is this sloppy writing? Careless editing?

Sell does offer a shrewd assessment of the former dictator. He sees him
as someone "without any core beliefs or values other than his own
political survival." Milosevic, he writes, "was not very good at using
power for anything other than keeping it." He was an enormously
destructive figure. Obsessed with power, he deliberately impoverished
not only Serbia's economy but also its intellectual and social fabric
"in order to eliminate the very capacity for independent alternatives to

The book follows familiar lines; I doubt whether it contains anything
that has not been said before. One does come across interesting tidbits:
Washington took an almost instant dislike to Carl Bildt, because he "had
not developed the habit of deference to Washington" and was unwilling
"to take direction." Needless to say, Bildt did not last long in the

There is, of course, nothing surprising nowadays in high-level American
officials expecting deference from little nations or their
representatives. But this is only a part of America's post-cold war
attitude toward the rest of the world. It also permeates US policy in
the Balkans. Despite the rhetoric about justice and eagerness to help
the people of Serbia, the book suggests that the United States was
interested in the Hague court as a political tool rather than a
mechanism that would add another dimension to international law by
holding individual leaders responsible for war crimes and crimes against
humanity. Everything that would detract from Washington's
policy--whatever that policy is at any given moment--must be dismissed
out of hand or ignored. With a sleight of hand, Sell dismisses British
and French experts who found conclusive proof that Muslim snipers had
fired on their own people in order to stimulate sympathetic media
coverage for their plight. He ignored Canadian Gen. Lewis MacKenzie, who
said he had personally seen a similar incident. Sell also ignores the
fact that Secretary of State Lawrence Eagleburger accused Milosevic of
war crimes in Bosnia and Croatia in December 1992; Eagleburger's speech
in Geneva no longer fits the official narrative.

Within a year, Milosevic had reinvented himself as a born-again
peacemaker. By 1995 he was the "guarantor" of peace in Bosnia. (He was,
indeed, most responsible for the successful outcome of the peace talks
at Dayton, Ohio.) He shared the stage with Bill Clinton during the
signing ceremonies in Paris. Clinton flattered him. "It's nice to hear
your voice," Clinton told the dictator. The American President, aboard
Air Force One to visit US troops in Bosnia, chitchatted with the Serbian
dictator about the Dayton agreement. "I know it cannot go ahead without
you," Clinton said, according to a recently published transcript of the
conversations monitored by Croatian intelligence.

So, even though "it had long been clear that Milosevic was responsible
for ethnic cleansing and other Croatia and Bosnia," Sell
tells us, he was not indicted, because the Clinton Administration was
unable to find a "smoking gun" that would directly link him to the
misdeeds. We are led to conclude that the Administration did not assign
high priority to the task.

On the eve of the Kosovo war, however, the US government became active
in seeking to tie Milosevic to war crimes in Kosovo in early 1999. The
State Department's war crimes intelligence review unit was given a
boost: The number of its analysts and the urgency of its task were
increased. Having no diplomats or spies in Serbia, Sell reports,
analysts used satellite photos to study troop movements inside Kosovo.
The outcome was "precisely the kind of evidence needed to indict
Milosevic on the basis of 'imputed command responsibility'" for ordering
ethnic cleansing or failing to stop it. Canadian jurist Louise Arbour,
the chief prosecutor at the time, must have known that the intelligence
she was given did not meet the standards of proof required in a court of
law. She traveled to Washington, London and Bonn apparently seeking a
policy context for the tribunal's action against Milosevic; but she got
"totally ambiguous" responses. As NATO planes continued to bomb
Yugoslavia, the flow of intelligence material reaching the tribunal
increased, but most of it was part of NATO's massive propaganda campaign
against Milosevic. This must have preyed on the minds of the
prosecutors, leading them to believe that they had a substantial case
that would hold up in court. Indeed, the initial indictment was confined
to war crimes committed in Kosovo in 1999.

The tribunal may indeed have been manipulated by outside forces, as some
of its officers feared. As is frequently the case in the Balkans, a
story always seems clear at a distance, but the closer you get to the
scene of events the murkier it becomes. The drafters of the
indictment--somewhat to their surprise later--had not taken into account
the fact that Kosovo was a secessionist province that had declared
independence in 1991, as a result of which it was placed under Serbian
police rule. The province remained quiet as long as the Albanian
struggle was confined to peaceful means. However horrific the Serbian
repression, it did not include ethnic cleansing. But by 1997, the
Albanians had taken up arms. Milosevic had an armed insurrection on his
hands. Moreover, when the Kosovo war ended, the liberated Albanians had
lost their moral high ground; they embarked on a killing spree of the
defeated Serbs under the noses of NATO peacekeepers.

Once Milosevic was deposed, the legal weaknesses of the Kosovo
indictment became painfully obvious, and the prosecutors moved to
include Croatia and Bosnia, the latter being the prime stage for the
charges of genocide and crimes against humanity. Like Sell, I too have
no doubt that Milosevic is guilty as charged, at least with respect to
most counts dealing with Bosnia. I witnessed a good deal while covering
his wars from 1990 to 1996. But it is crucial that this be established
in a court of law. Although the pool of Milosevic's partners in crime
has been shrinking (most recently with the suicide of his former police
minister), a number of them are still at large. The tribunal needs these
former Serbian officials; some should be offered immunity from
prosecution in exchange for their testimony. The prosecutors should work
with local Serbian authorities and hire local private investigators
rather than depend on the might of the United States to force the
extradition of suspected criminals. Without such witnesses and in the
absence of spectacular documentary evidence, the tribunal is heading for

On late-night television the other day I watched Spencer Tracy and
Marlene Dietrich in the 1961 movie Judgment at Nuremberg, about
the trials of Nazi war criminals. It was a riveting courtroom drama. The
evidence against the accused was overwhelming. By comparison, the Hague
tribunal is more like the trial of Al Capone, the Chicago mobster who
was responsible for a series of gangland murders. Although everybody
knew Capone was guilty, police could not prove it. Eventually he was
sent to jail for tax evasion. One way or another, I suspect, Milosevic
will end up spending many years in jail. Let's hope this will be done
for the right reasons.

The recently announced plans for an international conference on the
Middle East confront the Bush Administration with a major test of its
capacity for international leadership. The question is whether it will
establish an agenda for the conference that will bring peace and justice
to the region or whether it will allow American and world policy again
to be dictated by Ariel Sharon's government. The atrocious suicide
bombing near Tel Aviv, which coincided with the Bush-Sharon meeting,
must not be allowed to derail international efforts to achieve a
political settlement--one that guarantees a viable Palestinian state,
which will give Palestinians a stake in peace and in the renunciation of

Given this Administration's track record, the prospects of its standing
up to Sharon are not encouraging. Recall the shameful way it allowed him
to ignore UN resolutions calling for withdrawal from the West Bank and
to stop a fact-finding mission to investigate the destruction of Jenin,
despite a Human Rights Watch report adducing evidence that the Israeli
forces had committed war crimes--using Palestinians as human shields and
wreaking disproportionate destruction on civilian habitations.

Adding to the congenital White House tilt were the one-sided House and
Senate resolutions of support for Israel adopted on the eve of Sharon's
arrival in Washington. The one in the House, steered through by whip Tom
DeLay, echoed the Sharon line that Yasir Arafat isn't a "viable partner
for peace." An idea of where DeLay is coming from was provided by his
soulmate, GOP majority leader Dick Armey, who told Hardball host
Chris Matthews that the Palestinians should be expelled from the West
Bank and Gaza. The endorsement of ethnic cleansing by leading
conservatives went almost unnoticed by the mainstream media. As Peter
DeFazio, one of fifty House members who opposed the resolution, said,
DeLay put Congress on record "somewhere to the right of the Likud."

In fact, all of Washington is caught in the iron grip of pro-Likud
sentiment, which prevents the United States from acting in the world's
interest, let alone its own. As Anatol Lieven of the Carnegie Endowment
recently put it, "To call this a case of the tail wagging the dog would
be inadequate--it is more a case of the tail dragging the dog around the
room and banging its head on the wall."

That is why an international conference is so crucial. The concept
recognizes the importance of inserting other critical players in the
international community into Middle East diplomacy. The purpose of the
conference should not be to restart Israeli-Palestinian negotiations. It
should be to win adherence to a US-European-Russian-UN plan for the
implementation of a settlement as provided for in UN Security Council
resolutions and by the recent Arab League resolution calling for the
recognition of Israel in exchange for its withdrawal from the occupied

This plan is one that nearly all sane people have come to recognize as
the basis for peace in the Middle East: two states living side by side;
dismantlement of the Israeli settlements; Palestinian sovereignty over
East Jerusalem; and recognition of the right of return of Palestinian
refugees while limiting their numbers. But it is one the parties
themselves have not been able to agree to, and in the current
circumstances cannot be expected to negotiate seriously.

A reasonable interim stage could involve placing the occupied
territories, including Israeli settlements, under international control
pending the establishment of a Palestinian state and stationing
international forces drawn largely from NATO countries to maintain order
and security during the transition. The purpose of this agenda would be
to take the peace process out of the hands of an Israeli government that
may not want peace and to internationalize responsibility for security
in the West Bank and Gaza. It is not Israel's prerogative to determine
whether a Palestinian state should exist; that is a matter for the
international community to decide. Only the international community--in
particular, the US in cooperation with the EU, Russia and the UN--can
forge a settlement that will bring peace at last to both Palestinians
and Israelis.

After years of collecting evidence against Slobodan Milosevic, the
prosecutors at The Hague expected a decisive victory. But as the former
Yugoslav president, who insisted on defending himself, began his opening
statement at his war crimes trial last February, his accusers realized
they'd got more than they
had bargained for. Ever the wily politician, Milosevic railed that the
trial was a political farce staged by an illegal court determined to
rewrite history and condemn not only him but the entire Serbian nation.

But if Milosevic's assault was an irritant, it should have come as no
surprise. After all, his arguments hark back to those of one of our most
renowned modern philosophers. Indeed, behind every contemporary war
crimes tribunal, it seems, looms the shadow of Hannah Arendt. Reflecting
on the 1961 trial of Adolph Eichmann, Arendt raised some of the same
sorts of objections. In Eichmann in Jerusalem, Arendt took to
task the prosecution, which she claimed transformed the trial of one
Nazi functionary into a stage for manipulating history and
indoctrinating future generations. For prosecutors to use the trial of
an individual to expose and judge the atrocities of an entire war,
Arendt wrote, "can only detract from the law's main business: to weigh
the charges brought against the accused, to render judgment and to mete
out due punishment." To Arendt, a criminal trial could never truly
respond to the scale of Nazi atrocities: "It is quite conceivable that
certain political responsibilities among nations might some day be
adjudicated in an international court; what is inconceivable is that
such a court would be a criminal tribunal which pronounced on the guilt
or innocence of individuals."

Yet modern war crimes tribunals are attempting to do just that, and
Arendt's arguments stand as a persistent challenge--one that is sure to
take on more urgency as the first permanent international criminal court
begins its work, over vehement US opposition (the Bush Administration
has just announced it is renouncing President Clinton's signature of the
treaty creating the court). In The Key to My Neighbor's House,
Elizabeth Neuffer, a reporter for the Boston Globe, implicitly
takes it on. Although Neuffer doesn't discuss Arendt's views directly,
her portrayal of the international criminal tribunals for the former
Yugoslavia and Rwanda ultimately serve as a persuasive reply.

Neuffer devotes the first half of her book to the 1990s conflicts in the
Balkans and Rwanda, interspersing stories of survivors with historical
and political analysis and intermittent on-the-scenes reporting. She
recounts how in each region, power-hungry nationalists exploited old
ethnic tensions to spark a genocide with political aims. Although not
always artfully told, the narrative effectively conveys the tragedy of
each war, highlighting horrors such as the shelling and siege of
Sarajevo, the fall of Srebrenica and the subsequent mass execution of
Muslim men and boys. Concerning Rwanda, she describes how escalating
tensions between Hutus and Tutsis grew increasingly violent until they
culminated in the slaughter of 800,000 Tutsis and moderate Hutus in less
than 100 days. Although detailed and heartfelt, such stories have been
told before (Philip Gourevitch's We Wish to Inform You That Tomorrow
We Will Be Killed With Our Families
has become a classic on the
genocide in Rwanda). What Neuffer adds is a revealing portrait of the
two international tribunals where survivors eventually sought justice.
Her portrayal serves as convincing evidence that, contrary to Arendt's
contention, these courts can and should play more than a traditional
legalistic role.

Consider the story of Hamdo Kahrimanovic. A Muslim elementary school
principal from the Bosnian town of Kozarac, Hamdo was imprisoned in the
Omarska concentration camp in June 1992 after Serb nationalists took
over his hometown. At Omarska, Hamdo encountered his former student,
Dusan Tadic, now a gangster brutalizing camp inmates. When, four years
later, the Yugoslavia tribunal declared its first trial in session,
Tadic was in the dock. Hamdo, who had known Tadic all his life, was
called to testify.

At the trial, Neuffer recounts, the earnest American judge struggled to
understand how Bosnia could have so quickly degenerated from a
harmonious multi-ethnic state into a scene of genocide. "Perhaps you can
help me to understand since I am not from that area," she said. "How did
that happen?" Hamdo was at a loss. "I had the key to my next-door
neighbor's [house] who was a Serb and he had my key," he said, giving
Neuffer the title for her book. "That is how we looked after each
other." After the war broke out, "one did not know who to trust anymore
and I do not have a word of explanation for that."

As a legal matter, Hamdo's testimony was probably irrelevant to Tadic's
case. Yet it captured an important element of the tragedy of the Bosnian
war and haunted the judge long afterward. In contrast to Arendt's
formalistic view of a trial, Neuffer suggests here that the court's
attempt to record and understand the crimes that occurred is as
important as its judgment of any individual who caused the events.

In the end, Tadic was convicted of crimes against humanity but acquitted
of murder. Unfortunately, the press had lost interest by the time the
verdict was announced; few Bosnians even heard about it. Still, Neuffer
believes the trial was important, for "there is an innate human need for
some kind of reckoning, an accounting," she writes. Over time, such
accountings begin to have a palpable effect on survivors' lives. By
1999, the tribunal had indicted and arrested most of Kozarac's local
warlords, and Hamdo, his wife and about 240 other Muslim families were
able to return home, beginning the process of reconciliation.

The Rwanda tribunal's consequences similarly reach beyond isolated
convictions. We see this through the harrowing story of Witness JJ, as
she's called by the tribunal to protect her identity. A young Tutsi
woman, JJ managed to escape when Hutu extremists attacked her small
farming village of Taba. She sought refuge at the offices of the popular
local mayor, Jean-Paul Akayesu, whom she'd known since she was a girl.
But Akayesu soon turned on JJ and the other Tutsi women, joining in the
genocide and, as the tribunal's investigators eventually learned,
plotting a mass rape. JJ became one of those gang-rape victims, barely
escaping death. When Akayesu went on trial in 1997, JJ was called to

JJ provided critical testimony at Akayesu's trial--the first in which
rape was deemed an act of genocide and a crime against humanity. But the
experience contributed more than a legal precedent. Neuffer describes
how JJ, initially intimidated by the imposing courtroom, lawyers and
judges, began her testimony hesitantly. But she gained confidence as she
told her story, even under harsh cross-examination. "When I saw Akayesu
with my eyes in court, I was afraid," JJ said later. "But at the same
time, I had something heavy on my heart. After I testified, it went

Unfortunately, the tribunal offered JJ little beyond that therapeutic
effect: It neither provided restitution nor helped survivors discover
what happened to lost family members. And to many Rwandans, tribunal
justice seems patently unfair: While more than 100,000 lower-level
accused genocidaires pack local prisons awaiting trials where
they face the death penalty, their ringleaders sat in a UN-run jail--with
its "state-of-the-art exercise room and wide-screen TV," as Neuffer
describes it. At most, they will receive life in prison.

The tribunals' problems, moreover, have been compounded by the West's
reluctance to provide necessary support. Created by the UN Security
Council, largely out of shame at the UN failure to intervene effectively
in either conflict, both courts have been stymied by lack of funds,
poorly trained staff, mismanagement and the inherent challenge of
creating a court that functions outside any established legal system.
The Yugoslavia tribunal, based in The Hague, faced in addition a
political snare: Peace negotiations were ongoing, so NATO members were
loath to have their troops arrest indicted war criminals still in
positions of power. The Rwanda tribunal, meanwhile, located in Arusha,
Tanzania, was marred by allegations of corruption.

Over time, both tribunals have improved. Neuffer's final assessment,
although qualified, is positive: "Tribunals, truth commissions, local
trials, government inquiries--are all part of the answer," she writes.

Neuffer's book is similarly a qualified success. While well researched
and comprehensive, it tries to do too much. Neuffer is so eager to
humanize the survivors, for example, that she frequently tries to
re-create their sentiments in a manner that seems forced and
unnecessary. And Neuffer's personal commentary is sometimes strained. In
an apparent nod to Arendt's famous observation about the banality of
evil, Neuffer ponders her meeting with a man who participated in the
Srebrenica massacre: "The evil I glimpsed in him was the potential for
evil we all share.... What's most chilling when you meet a murderer is
that you meet yourself." Such extrapolations are neither convincing nor
necessary. As Arendt herself recognized, we don't all have the potential
to become thoughtless murderers. Moreover, Neuffer would surely agree
that those who commit the crime ought to be held responsible. Indeed,
she takes the point further: Even if Tadic, like Adolf Eichmann, was
only a cog in a murderous machine, the goal of such a prosecution is
greater than the conviction of the individual.

Lawrence Douglas makes that argument forcefully in The Memory of
. An associate professor of law, jurisprudence and social
thought at Amherst College, Douglas writes about the trials of the
Holocaust. Though he takes a more analytic approach than Neuffer's,
examining in often painstaking detail the legal charges and evidence
introduced to support them, Douglas arrives at a similar judgment:
Despite their problems, these legal proceedings provide a form of
justice that's more comprehensive than any individual verdict.

Beginning with the 1945-46 Nuremberg trial of Nazi leaders, Douglas goes
on to discuss Israel's prosecution of Eichmann, followed by several more
recent trials: the 1987 Israeli trial of John (Ivan) Demjanjuk; the
French trial of Klaus Barbie that same year; and Canada's two trials of
a Holocaust denier, Ernst Zundel, in 1985 and 1988. Although a critic of
the trial strategies, Douglas comes down a champion of law's potential.

Unlike Neuffer, Douglas takes on Arendt directly, challenging her view
that the law should judge only the guilt or innocence of the accused.
Although he recognizes the tension between strictly applying law to the
facts of one case and creating a broader historical record, he believes
a war crimes tribunal can do both. Unlike Arendt, he's not bothered by
the idea of a show trial--indeed, the spectacle is precisely one of the
aims. Although he concludes that the Nuremberg and Eichmann trials were
more successful in their didactic aims than were the trials of
Demjanjuk, Barbie and Zundel, all were, in a sense, show trials,
"designed to show the world the facts of astonishing crimes and to
demonstrate the power of law to reintroduce order into a space evacuated
of legal and moral sense."

Nuremberg, of course, was the touchstone. But Douglas believes that
trial was hampered by the prosecutor's insistence on fitting the Nazis'
unprecedented crimes into conventional legal standards--precisely the
legalistic approach Arendt might have advocated. Eager to use the most
reliable proof, they based their case on documents, flooding the court
with paper and numbing the audience to its contents. The result was an
eleven-month trial that produced, as Rebecca West wrote in The New
, "boredom on a huge historic scale."

The more dramatic moments of the trial, meanwhile, were the most legally
problematic. Take, for example, the screening of the innocuously titled
film Nazi Concentration Camps, which Douglas analyzes in detail.
Made by Allied army officers at the time of liberation, the hourlong
black-and-white documentary reveals camp prisoners with "the twisted
facial geometries and afflicted eyes of the demented," writes Douglas.
The horrors increase as the camera moves from one camp to the next,
lingering on emaciated, naked bodies piled upon one another, unclear if
they are dead or alive. German citizens, meanwhile, are presented as
complicit: "smiling Weimar women, dressed in their Sunday best,
strolling along a tree-lined road, on their way to view the camps by
'invitation' of the Americans."

The response in the courtroom, Douglas recounts, was a stunned silence.
The images, it seemed, spoke for themselves. But what exactly did they
say? The film, whose introduction violated basic rules of evidence,
never indicated who was responsible for the horrors portrayed. Nor did
it name or even accurately convey the crimes committed. Instead of
defining them as crimes against humanity, it presented them as crimes of
war. For political and procedural reasons, crimes against humanity were
defined in such a cramped manner that the term barely surfaced during
the trial. Likewise, genocide, although mentioned in the indictment and
in closing arguments, was otherwise never raised. So eager were the
prosecutors to fit the square peg of the Holocaust atrocities into the
round hole of conventional legal forms that they ultimately distorted
the truth. Although the defendants were appropriately convicted, Douglas
maintains that the historic and didactic impact of the trial was
severely limited by the prosecution's adherence to the most conventional
construction of the law.

In the Eichmann trial, the Israeli prosecutors were determined to do
better. Here, survivor testimony, rather than documents, was central to
the case, providing "the dramatic focus of the trial" and building "a
bridge from the accused to the world of ashes," writes Douglas. But the
Eichmann prosecution made miscalculations of its own. In the Israeli
attorney general's effort to reach beyond proving Eichmann's guilt to
portraying the vast crimes of the entire Holocaust, he opened himself up
to Arendt's criticism that the trial had lost its legitimacy. More than
100 survivors testified about their experiences--a form of "national
group therapy." But while their stories reminded the world of the Nazi
atrocities, they were mostly not about Eichmann.

Eichmann, meanwhile, eerily encased in a glass booth, was presented as a
vicious animal. As the Gestapo's expert on Jewish affairs, though,
Eichmann was not a Nazi leader; he was a bureaucrat, the epitome of what
Arendt describes as "the terrifyingly normal" person who commits
horrendous crimes. Yet the portrayal of him as a monster served the
prosecution's aim of reminding the public of the Third Reich's evil, as
well as the laws demanding that Eichmann's crimes be intentional ones.

To Arendt, the trial also failed as a legal matter because rather than
charging Eichmann with crimes against humanity, the prosecutors, eager
to bolster the political identity of the state of Israel and its new
citizens, framed the charges more narrowly, as crimes against the Jews.
By rejecting the broader legal category, argues Arendt, the prosecutors
failed to create what should have been an important precedent for future

Douglas acknowledges these problems but insists that Arendt's criteria
for success are too narrow. Such trials should do more than apply the
law and reach a judgment; they should create an accurate historical
record and shape collective memory, he maintains. The Eichmann trial was
a legal success, then, "insofar as it transformed understanding of what
the law can and should do in the wake of traumatic history."

Douglas is far less sanguine about the later Holocaust trials, which he
claims obfuscated the very history they were intended to enlighten. The
Zundel trial, in particular, applied legal procedural rules so strictly
that much of the evidence of Nazi crimes was excluded, allowing
Holocaust deniers to turn the trial into a forum for revisionist

Although for the most part he is thorough and convincing, Douglas
occasionally stumbles. For example, he doesn't adequately respond to
Arendt's charge that a domestic trial of an individual accused of
committing an international atrocity can fall prey to political agendas
that distort the historical record. His point about truth commissions
also misses the mark. Douglas maintains that truth commissions are
inadequate because "a trial without judgment is like a race without a
finish--it lacks the sine qua non of dramatic closure that frames and
adds meaning to the shared narratives." But the real shortcoming of
truth commissions is that they don't fulfill two important aims of
criminal law: retribution and deterrence. Douglas is dismissive of the
notion that war crimes trials can have a deterrent effect, but he
shouldn't be. Domestic courts or ad hoc tribunals may be less likely to
deter would-be international law violators, but a permanent
international criminal court that systematically and effectively
prosecutes perpetrators could certainly, over time, do just that.

In coining the phrase "the banality of evil," Arendt observed that an
unthinking person might discard his own moral compass when a new one is
imposed. Ironically, that notion cries out for a far broader role for
criminal tribunals than Arendt would have countenanced. An established
international court that both judges individuals accused of widespread
atrocities and records the experiences of survivors could act as a moral
counterweight to domestic totalitarian leaders. Such a court holds out
the promise not only of deterring the potential architects of organized
brutality but of humanizing their victims in a way that even the most
thoughtless functionary might find difficult to ignore.


It’s the 100th anniversary of the Christmas Truce of WWI.

December 23, 2014

The president's announcement this week was a long overdue step into the twenty-first century.

December 23, 2014

Now that President Obama has broken the taboo on recognizing Cuba, he should send a US ambassador to Palestine as a prerequisite for a comprehensive peace treaty.

December 23, 2014

An estimated half-million to 1.5 million children are involved in the cocoa trade. 

December 22, 2014

“It is unacceptable that the Defense Department continues to waste massive amounts of money,” Sanders argues.

December 18, 2014

Only Congress can lift the embargo, and prominent Senators have threatened to block any ambassador to Cuba.

December 17, 2014

The two countries have resumed a dialogue after fifty years.

December 17, 2014

The history of US-Cuban relations in the last fifty-five years is the history of the loss of American prestige.

December 17, 2014

Dick Cheney clarifies what he means by American Exceptionalism.

December 17, 2014

The region’s transition out of dictatorship hinged on two words the United States would be wise to heed: “Never again.”

December 12, 2014