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Since this is going to be a story about sex and children, let's start
with a bit of groping in the priests' chamber.

I must have been 12. My confederates and I, all suited out in our little
Scout uniforms--demure blouse, ribbon tie, sash of merit badges across
the chest, jaunty tam-o'-shanter--were mustered in the rectory of St. John
Gualbert's, there to be investigated on our knowledge of and devotion to
the Blessed Virgin. This was the last step toward our achieving a
Catholic girl's honor called the Marian Award. I remember the word
"investigated." I remember, too, sitting on the long bench, looking at
the heavy draperies, the carved legs of the vast dining table, waiting
my turn in the half-dark, feeling the gaze of the stripped and suffering
painted Jesus behind me while, at the head of the table, our resolutely
unmortified investigator began asking first one girl then another such
questions as "Where do babies come from?" "What do you have between your
legs?" "What do you have here?" laying hand on breast, and so on like
that. Hmm, I thought, these were nothing like the sample questions in
the manual I'd been reviewing for days. And what was he doing
easing my friend up across his tumid belly and onto his lap? I'd never
liked this priest. He was florid and coarse, with piggy eyes, a bald
head and thick fingers that he'd run along the inside of the chalice
after Communion, smacking his lips on the last drops of the blood of
Christ. My mother didn't teach me about sex--I don't count the
menstruation talk--but, without quite saying so, she taught me to regard
authority figures as persons who had to earn respect. Obedience was
rarely free, never blind. Time has stolen what this priest asked me,
where, if anyplace, he touched me; I remember him stinking of drink is
all, and myself standing schoolmarm straight and reciting, with the
high-minded air I affected for such occasions, the statement I'd been
preparing: "Father, I fail to see what that question has to do with the
Marian Award. Girls, let's go." We escaped in a whirl of gasps and
secretive giggles, rushing to telephone our Scout leader. I had no
inclination to tell my mother, but most of the other girls told theirs,
and soon the priest was relieved of child-related duties. We got our
Marian medals without further investigation, and before too long the
priest dropped dead in the street of a heart attack. Even now, as
middle-aged men weep about the lifelong trauma inflicted by an uninvited
cleric's hand to their childish buttocks, I consider my own too-close
brush with the cloth as just another scene from Catholic school.

There were very different scenes, many more in fact, that I could just
as easily conjure forward now under the heading "sex and childhood,"
though at the time I no more thought they had anything to do with sex
than our encounter with the priest or, for that matter, my mother's
subtle lessons in self-possession. They contained, rather, the bits and
pieces of a sensual education that would be fit together in some
recognizable pattern only later. And because, at least in my school at
that time, official silence about sex meant we were also spared lectures
against abortion and homosexuality, onanism and promiscuity ("Thou shalt
not commit adultery"? who knew?), what was left to us was indulgence in
the high-blown romance of the church: Gregorian chants and incantatory
Polish litanies; the telling and retelling of the ecstasies of the
saints; the intoxicating aroma of incense, of hyacinths at Easter and
heaped peonies in June; the dazzling brocades of the priests' vestments
and the Infant of Prague's extravagant dresses, which we girls would paw
through when cleaning the church on Saturday; the stories of hellfire
and martyrdom; and the dark, spare aesthetic of the nuns.

There is a parallel in my ordering of childish memories here and the
public reaction to Judith Levine's Harmful to Minors. Levine
spends a large portion of the book advocating for candid, comprehensive
sex education in schools, something I and many of my generation never
had. But the spirit that animates the book is a less programmatic,
polymorphous appreciation of the sights and smells, the sounds and
language and tactile delights that make a person--adult or child--feel
alive in her skin. Levine's central preoccupation, running like a golden
thread throughout the book, is the pursuit of happiness, the idea that
kids have a right not just to safety and knowledge but to pleasure too.
And "pleasure" here is more than the sweet shudder of a kiss, the happy
exhaustion of climax; it is the panoply of large and small things that
figure under the heading joie de vivre, including the
satisfaction, quite apart from sex, of relating deeply with others in
the world. "Knowledge" is more than facts and technical skill; it is the
ability to understand the prompts of body and mind--to recognize "when
you can't not have it," as one woman quoted by Levine replied to her
daughter's "How do I know?" question--and the wherewithal to decide when
it's time to get out of the rectory.

In another age and country this might be called reasonable, everyday
stuff. Levine spends hardly any time talking about pedophiles, none on
priests. In dissecting the various sexual panics of the past couple of
decades, she marshals a catalogue of what, in the scheme of things,
should be reassuring studies and statistics to show that satanic ritual
abuse is a myth; child abduction, molestation and murder by strangers
(as opposed to family members) is rare and not rising; pedophilia (an
erotic preference of maybe 1 percent of the population) typically
expresses itself in such "hands-off" forms as voyeurism and
exhibitionism; child sex offenders have among the lowest rates of
recidivism; child porn, whether on the Net or the streets, is almost
nonexistent and then (less reassuring) its chief reproducers and
distributors are cops; sexual solicitations aimed at children over the
Net, while creepy, have not resulted in actual assaults; and "willing"
encounters between adults and minors do not ruin minors. Although Levine
has noted in interviews that, as a teenager, she had a sexual
relationship with an older man, she never mentions it in the book, nor
does she delve too far into this last taboo. She relegates to a footnote
the fascinating, difficult story of Mary Kay Letourneau, the 35-year-old
Seattle area teacher jailed for her affair with a 13-year-old student
who impregnated her twice and insisted to the press, "I'm fine."
Levine's most detailed discussion of age-of-consent laws involves the
more easily comprehended story of a precocious 13-year-old, who also
asserted her free will, and an emotionally immature 21-year-old,
currently locked up for statutory rape. More than once Levine states,
for anyone suspicious enough to wonder, her unswerving opposition to
every form of forced, coerced or violent sex, and to sex between adults
and young children. It shouldn't be necessary for her to assert that
just because kids have a far greater chance of dying in a car accident
than at the hands of a sex offender that doesn't mean the latter isn't a
problem, but she does. Yet, for all that, her book is being blasted by
the heavy guns and light artillery of the right-wing sex police as a
child molester's manifesto.

One reason is timing. The priest scandal, one of those things that
everyone knew but kept an unbothered or guilty silence about until the
court cases and daily headlines forced a response, has raised a hysteria
against which any rationality on youthful sexuality has about as much
chance as that student facing the tank in Tiananmen Square. Even without
that, nothing seems to make the blood boil like the suggestion that it's
possible for minors to emerge unscathed or even enriched from consensual
sexual relations with adults. I have had such conversations with
leftists who angrily reject the whole notion, even as I ask, What about
X, who says it was like an answered prayer when his parents'
30-something friend initiated him sexually at 13, when for months
afterward at the end of the school day he would politely kiss his
same-age girlfriend (now his wife of twenty-five years) and then rush to
this experienced woman's bed? What about Y, who seduced her married
teacher when she was 17 and he 45, and who, thirty years later, has with
this same man one of the most loving unions I have ever seen? What about
Z, who as a youth regularly sought out the company of older men because,
apart from a sexual education, they offered him a safe place for
expression, a cultural home, a real home? The priest scandal, which
forecloses any attempt to separate vicious crime from pervy nuisance
from consenting encounter, has further limited the possibilities for
thoughtful discussion on the real things people do and feel, the causes
and effects and complex power exchanges of a human activity that does
not, and will never, operate according to the precepts of a textbook or
lawbook.

Another reason is that Levine's most bombastic critics had not read
Harmful to Minors before damning it. Dr. Laura, who called
on the University of Minnesota Press to stop the book's release, took
her cues from Judith Reisman, who declared Levine an "academic
pedophile." A longtime zealot in the trenches of the antipornography
cause, Reisman told the New York Times, "It doesn't take a great
deal to understand the position of the writer. I didn't read Mein
Kampf
for many years, but I knew the position of the author." Tim
Pawlenty, the Minnesota House majority leader and a Republican hopeful
for governor, also admitted to not having read the book before equating
the press's role in its publication with "state-sanctioned support for
illegal, indecent, harmful activity such as molesting children." Robert
Knight, a spokesman for Concerned Women for America who urged the
university regents to fire those responsible for publishing this "evil
tome," says he "thumbed through it." Knight, whose organization is
dedicated to bringing "Biblical principles into all levels of public
policy," might consider what, at a practical level, that might mean,
starting with Moses' commands to his warriors in the Book of Numbers:
"Kill every woman that hath known man by lying with him. But all the
women children, that have not known a man by lying with him, keep alive
for yourselves."

Still, I think Levine would be pilloried by Dr. Laura and her ilk even
without the priest scandal and even if she had ignored the subject of
sex across the age divide. For the pleasure principle she enunciates
challenges the twenty-five-year-old organizing strategy of the right.
Ever since Anita Bryant first demonstrated that a power base could be
built by attacking homosexuals, the right has exploited real anxieties
about sex, love and family to constrain the liberatory spirit, whether
expressed by sexual preference, divorce, abortion, contraception,
women's freedom or teen sex. This has not managed to send queers back to
the closet, lower divorce rates or "protect the children." American
teenagers have about four times the pregnancy rate of teens in Western
Europe. Those in a program of "abstinence only" education still have sex
and are about half as likely to protect themselves than kids who've
received broad sex information. Even with abortion rights severely
curtailed, US teenagers have abortions at about the rate they did just
after Roe v. Wade. One in four has had a sexually transmitted
disease; one an hour is infected with HIV; and, not incidentally, among
American children one in six is poor. That notwithstanding, the sex
panic strategy has succeeded in the only way it had to: creating a
movement, with all the institutions, political power, lawmaking
capability, grassroots presence and funding that implies, to advance an
agenda for everything from global dominance to bedroom snooping.
Levine's critics are all part of that project, and since she butts
against it almost from the opening pages of her book, they are striking
back.

What is more telling is who isn't rushing to the defense. While a group
of free-speechers, pro-sex feminists and radical gay activists have
generated press releases, opinion pieces, e-mail alerts and letters of
support to Levine's publisher, there has been silence from mainstream
feminist organizations and the liberal sex-education and child-health
establishments. That may be partly because they, too, have felt the
sting of Levine's criticism. Rather than build a countermovement to
insist on sexual freedom, she writes, such heavyweights as Planned
Parenthood, the National Campaign to Prevent Teen Pregnancy, ETR
Associates (the largest US mainstream sex-ed publisher), the National
Education Association, the Health Information Network and a host of
progressive sex educators tried to appropriate the "family values"
rhetoric of the right, joining in "a contest to be best at preventing
teen sex."

"The Right won," she writes, but the mainstream let it. Comprehensive
sex educators had the upper hand in the 1970s, and starting in the
1980s, they allowed their enemies to seize more and more territory,
until the Right controlled the law, the language, and the cultural
consensus.... Commenting on its failure to defend explicit sexuality
education during an avalanche of new HIV infection among teenagers,
Sharon Thompson [author of the engrossing book on sex and love among
teenage girls, Going All the Way] said, "We will look back at
this time and indict the sex-education community as criminal. It's like
being in a nuclear power plant that has a leak, and not telling
anybody."

Throughout the Clinton era those forces largely stood by as the most
sexually reckless President in memory signed a sheaf of repressive
legislation, acts with names like Defense of Marriage, Abstinence Only,
Personal Responsibility and Child Pornography Protection. The last on
that list, capping a legal trend that, as Levine says, "defined as
pornography pictures in which the subject is neither naked, nor doing
anything sexual, nor...is even an actual child," was recently struck
down by the Supreme Court. The second to last, also known as the welfare
bill, is up for reauthorization this year, along with its enhancements
of penalties for statutory rape and its policing of teen sex, motherhood
and marriage. As part of that bill the Clintonites fanned the notion
that minors were too young to consent to sex with an adult, while in
criminal law they eased the way for prosecuting children as adults and
jailing them as adults, in which circumstance consent usually isn't an
issue. To grasp the effect of liberal silence about Levine, it is
perhaps enough to recall one name: Dr. Joycelyn Elders, sacked by
Clinton as Surgeon General in 1994 for saying that masturbation is part
of childhood and it doesn't hurt to talk about it. Elders has written an
eloquent and sensible foreword to Harmful to Minors. Back when
Elders was twisting in the wind ABC's Cokie Roberts called her "a sort
of off-to-the-left, out-of-the-mainstream, embarrassing person"; now
the Washington Times insinuates she's soft on molestation. From
self-abuse to child abuse in eight years, one absurd charge prepares the
ground for the other.

That said, it's too easy to read the reception of Levine's book as
simply more evidence of right-wing lunacy and liberal retreat. What the
brouhaha also signals in its small way is a failure of the left. In
organizing around issues of sex, love and family, the right has surely
been cynical but at least it speaks to the deepest questions of intimate
life. Its answers are necessarily simplistic and straitened. The family
is falling apart? It's the homos. Marriage seems impossible? It's the
libbers. Sex brings suffering? Just say No. Love seems distant? Await
the Rapture. Except for a small group of queer radicals and pro-sex
feminists, to the extent that such questions are even entertained on the
left, the answers tend toward a mixture of social engineering and
denial: There's nothing wrong with the family that an equitable economy,
divorce or gay marriage won't fix. Marriage is possible; equality is the
key. If sex ed was better and condoms were free, teens wouldn't get
pregnant and wouldn't get AIDS. If abortion is painful, you've been
propagandized. If sex is painful, you're doing it wrong. If love is
painful, find a new lover.

Levine is too sensitive to the mysteries and complexities of human
relations to be characterized as advocating anything so pat as
happiness-through-policy in the area of childhood sexuality. But if her
putting children and sex together in the same sentence can be read by
the right as a call to licentiousness, her heavy emphasis on the
pleasure-enhancing possibilities of sex education may encourage readers
on the left to believe that kids can be protected from bad sex, mediocre
sex, regret, risk, danger, pain. And they can't, any more than adults
can. They can't because in matters of sex, desire is a trickster. What
you see isn't always what you get, much less what you want, though it
may be what you need. In matters of the heart, intimacy means
vulnerability means daring to bet against pain. As with all bets,
sometimes, often, you lose.

Levine actually makes this point but she so wants kids to have better
information, better experiences--and she argues so well and hard for
these--that somehow it gets lost. Citing a study showing that 72 percent
of teenage girls who'd had sex wished they had waited, Levine wonders
whether this regret isn't perhaps really about romantic disappointment
and asks, "Might real pleasure, in a sex-positive atmosphere, balance or
even outweigh regret over the loss of love?" Can we know pleasure
without pain? one might ask in return. Can regret over lost love, at any
age, be so easily balanced? Even sidestepping those twisting lines of
inquiry, isn't the promise of "real pleasure" as much a romantic ideal,
as much an invitation to disappointment, as the promise of true love,
especially for the young? However wished, it's not so easy to
disentangle sex from the hope for love, to revel in pure, transporting
sensuality without letting expectations, not to mention fumbling
technique, get in the way. It doesn't have to, and it doesn't always,
but sex can change everything between two people. We are weak,
after all, and life's little joke is that in that weakness lies the
potential for our ecstasy and our despair.

This isn't to discount the lifesaving value of open education about sex,
condoms, desire, freedom. (And because discussions like this always
force one to state the obvious, I'll also note that nothing in the
foregoing should suggest that I oppose equality, economic
redistribution, abortion rights, child safety, sexual liberation, the
search for love or, so long as heterosexuals insist on having the state
sanction their unions via the marriage contract, divorce and gay
marriage.) But rather than promise kids a world of good sex--like
promising a world of happy marriages, monogamous fulfillment,
self-sustaining nuclear families--maybe it's more helpful to explain sex
as the sea of clear water, giddy currents, riptides, sounding depths and
rocky shoals that it is. You navigate, find wonder in the journey,
scrape yourself up, press on anyway and survive. And sometimes,
sometimes, you experience a bliss beyond expression. The political job
is to expand the possibilities for such experience, to free people to
navigate, help them survive the hurt or not hurt so bad. Maybe if we
could be honest about sex, we could be honest about marriage and
monogamy and family. Maybe if so much didn't hinge on an outsized faith
in pleasure and fidelity and romantic love--if for people in couples or
families, everything didn't depend on the thin reed of love, and for
people alone, coupledom wasn't held out as the apex of happiness--all
the talk we hear about community might actually mean something. The
greatest virtue in Levine's book is its hope that children might learn
to find joy in the realm of the senses, the world of ideas and souls, so
that when sex disappoints and love fails, as they will, a teenager, a
grown-up, still has herself, and a universe of small delights and strong
hearts to fall back on.

Anyone looking for evidence that the death penalty should be
abolished need only look at the case of Zacarias Moussaoui, the
so-called twentieth hijacker, now on trial for his life for allegedly
b

The Jenin refugee camp's jagged concrete hillside of
homes-turned-into-graves has yet to yield all its secrets.

While it might appear to be sweet revenge for the Inquisition, it is
best to resist the impulse to burn some Catholic priests--and the
cardinals who covered up their criminal activities--at the

Some prestigious Wall Street firms may have been involved in a Ponzi scheme.

A long time ago I dated a 28-year-old man who told me the first time we
went out that he wanted to have seven children. Subsequently, I was
involved for many years with an already middle-aged man who also claimed
to be eager for fatherhood. How many children have these now-gray
gentlemen produced in a lifetime of strenuous heterosexuality? None. But
because they are men, nobody's writing books about how they blew their
lives, missed the brass ring, find life a downward spiral of serial
girlfriends and work that's lost its savor. We understand, when we think
about men, that people often say they want one thing while making
choices that over time show they care more about something else, that
circumstances get in the way of many of our wishes and that for many
"have kids" occupies a place on the to-do list between "learn Italian"
and "exercise."

Change the sexes, though, and the same story gets a different slant.
According to Sylvia Ann Hewlett, today's 50-something women
professionals are in deep mourning because, as the old cartoon had it,
they forgot to have children--until it was too late, and too late was a
whole lot earlier than they thought. In her new book, Creating a
Life: Professional Women and the Quest for Children
, Hewlett claims
she set out to record the triumphant, fulfilled lives of women in
mid-career only to find that success had come at the cost of family: Of
"ultra-achieving" women (defined as earning $100,000-plus a year), only
57 percent were married, versus 83 percent of comparable men, and only
51 percent had kids at 40, versus 81 percent among the men. Among
"high-achieving" women (at least $65,000 or $55,000 a year, depending on
age), 33 percent are childless at 40 versus 25 percent of men.

Why don't more professional women have kids? Hewlett's book nods to the
"brutal demands of ambitious careers," which are still structured
according to the life patterns of men with stay-at-home wives, and to
the distaste of many men for equal relationships with women their own
age. I doubt there's a woman over 35 who'd quarrel with that. But what's
gotten Hewlett a cover story in Time ("Babies vs. Careers: Which
Should Come First for Women Who Want Both?") and instant celebrity is
not her modest laundry list of family-friendly proposals--paid leave,
reduced hours, career breaks. It's her advice to young women: Be
"intentional" about children--spend your twenties snagging a husband,
put career on the back burner and have a baby ASAP. Otherwise, you could
end up like world-famous playwright and much-beloved woman-about-town
Wendy Wasserstein, who we are told spent some $130,000 to bear a child
as a single 48-year-old. (You could also end up like, oh I don't know,
me, who married and had a baby nature's way at 37, or like my many
successful-working-women friends who adopted as single, married or
lesbian mothers and who are doing just fine, thank you very much.)

Danielle Crittenden, move over! Hewlett calls herself a feminist, but
Creating a Life belongs on the backlash bookshelf with What
Our Mothers Didn't Tell Us
, The Rules, The Surrendered
Wife
, The Surrendered Single (!) and all those books warning
women that feminism--too much confidence, too much optimism, too many
choices, too much "pickiness" about men--leads to lonely nights and
empty bassinets. But are working women's chances of domestic bliss
really so bleak? If 49 percent of ultra-achieving women don't have kids,
51 percent do--what about them? Hewlett seems determined to put the
worst possible construction on working women's lives, even citing the
long-discredited 1986 Harvard-Yale study that warned that women's
chances of marrying after 40 were less than that of being killed by a
terrorist. As a mother of four who went through high-tech hell to
produce last-minute baby Emma at age 51, she sees women's lives through
the distorting lens of her own obsessive maternalism, in which nothing,
but nothing, can equal looking at the ducks with a toddler, and if you
have one child, you'll be crying at the gym because you don't have two.
For Hewlett, childlessness is always a tragic blunder, even when her
interviewees give more equivocal responses. Thus she quotes academic
Judith Friedlander calling childlessness a "creeping non-choice,"
without hearing the ambivalence expressed in that careful phrasing. Not
choosing--procrastinating, not insisting, not focusing--is often a way
of choosing, isn't it? There's no room in Hewlett's view for modest
regret, moving on or simple acceptance of childlessness, much less
indifference, relief or looking on the bright side--the feelings she
advises women to cultivate with regard to their downsized hopes for
careers or equal marriages. But Hewlett's evidence that today's
childless "high achievers" neglected their true desire is based on a
single statistic, that only 14 percent say they knew in college that
they didn't want kids--as if people don't change their minds after 20.

This is not to deny that many women are caught in a time trap. They
spend their twenties and thirties establishing themselves
professionally, often without the spousal support their male
counterparts enjoy, perhaps instead being supportive themselves, like
the surgeon Hewlett cites approvingly who graces her fiancé's
business dinners after thirty-six-hour hospital shifts. By the time they
can afford to think of kids, they may indeed have trouble conceiving.
But are these problems that "intentionality" can solve? Sure, a woman
can spend her twenties looking for love--and show me one who doesn't!
But will having a baby compensate her for blinkered ambitions and a
marriage made with one eye on the clock? Isn't that what the mothers of
today's 50-somethings did, going to college to get their Mrs. degree and
taking poorly paid jobs below their capacities because they "combined"
well with wifely duties? What makes Hewlett think that disastrous recipe
will work out better this time around?

More equality and support, not lowered expectations, is what women need,
at work and at home. It's going to be a long struggle. If women allow
motherhood to relegate them to secondary status in both places, as
Hewlett advises, we'll never get there. Meanwhile, a world with fewer
female surgeons, playwrights and professors strikes me as an infinitely
inferior place to live.

Alan Dershowitz prides himself on his credentials as a civil
libertarian, and to judge by most of the essays in his latest book,
Shouting Fire: Civil Liberties in a Turbulent Age, he has good
reason to do so. The Harvard law professor has built a considerable
reputation on his defense of free speech, due process and the separation
of church and state, to say nothing of his propensity for controversial
clients and clamorous talk shows. Shouting Fire is a pastiche of
fifty-four essays, some of them new, most of them not, the earliest
dating from 1963. The impetus for the collection appears to be at least
in part a desire to reassert the importance of civil liberties, even in
the face of such national security threats as those posed by the events
of September 11 and their aftermath. Moreover, Dershowitz admirably
offers what rights advocates rarely do: a philosophical grounding for
civil and political rights beyond the mere positivist assertion that
"that's the law."

If this were all Dershowitz had done in Shouting Fire, the book
might have received its share of kind reviews and headed off to
Remainderland. But in less than two of the book's 550 pages, he manages
to guarantee the collection a longer shelf life. For in an addendum to a
1989 article in the Israel Law Review, Alan Dershowitz, civil
libertarian, champion of progressive causes, counsel to human-rights
hero Anatoly Shcharansky, makes a case for torture or, more exactly, for
the creation of a new legal device that he dubs a "torture warrant." And
then, through a deft combination of newspaper editorials, public
appearances and an extended interview on 60 Minutes, Dershowitz
has expanded upon that proposition in a way designed to make talk of
torture routine and, not incidentally, banter about his book robust.

Dershowitz's proposal, therefore, deserves careful scrutiny, not only
because it comes from a respected voice but also because sources in the
FBI have floated the possibility that torture will be applied against
prisoners or detainees who refuse to tell what they know about
terrorists. Last October 45 percent of Americans approved of that.
Today, thanks to Dershowitz and others having lent the idea the patina
of respectability--Jonathan Alter writing in Newsweek, Bruce
Hoffman in The Atlantic--the number may be higher.

Dershowitz starts with the familiar scenario from every freshman
philosophy class, the case of the ticking bomb. Suppose the authorities
are holding a suspect who knows where a ticking bomb is located, a bomb
that will kill hundreds of people if it explodes. Would they be
justified in torturing the suspect to procure the information and
thereby save innocent lives?

Dershowitz contends that whether we like it or not, the officials would
inevitably resort to torture and, what's more, the vast majority of us
would want them to. But because any officer who did so might be subject
to prosecution, despite the availability of the common law defense that
a crime may be justified if it is necessary to prevent a greater evil,
the onus of responsibility should not be left on the individual
official. Instead the authorities should apply to a court for a "torture
warrant," similar to a search warrant, so that the courts must bear the
burden of authorizing torture or the consequences of failing to do so.
In another context Dershowitz has offered the reassurances that "the
suspect would be given immunity from prosecution based on information
elicited by torture" and that "the warrant would limit the torture to
nonlethal means, such as sterile needles being inserted beneath the
nails to cause excruciating pain without endangering life."

Despite these precautions, however, Dershowitz's proposal has not met
with universal acclaim, and in recent weeks he has appeared to be
distancing himself from it. In a February 17 letter to The New York
Times Book Review
responding to a critical review of Shouting
Fire
, Dershowitz claims that "the only compromises [with civil
liberties] I suggest we should consider, and not necessarily
adopt
, relate directly to protecting civilians against imminent
terrorist attacks [emphasis added]." But there is no hint on the two
relevant pages of Shouting Fire that Dershowitz's "torture
warrant" proposal is merely hypothetical. Indeed, in commenting on the
decision by the Supreme Court of Israel that prompted the idea in the
first place, he chastises the court for leaving interrogating officers
vulnerable to prosecution if they use torture and says, "The Supreme
Court of Israel...or the legislature should take the...step of requiring
the judiciary to assume responsibility [for torture] in individual
cases." Dershowitz is stuck with his "torture warrants" just as surely
as Arthur Andersen is stuck with its Enron audits.

So what, after all, is wrong with that--other than the fact that torture
violates both the Convention Against Torture, which the United States
ratified in 1994, and the Constitution? The first thing that is wrong is
that the act of torture, unlike that of searching for something, is in
itself both universally condemned and inherently abhorrent. Under
international law, torturers are considered hostis humani
generis
, enemies of all humanity, and that is why all countries have
jurisdiction to prosecute them, regardless of where the torture took
place. The fact that a US court or legislature might offer its approval
of the act does not abrogate that internationally recognized standard
any more than a court in Singapore that authorizes the jailing of a
dissident journalist makes Singapore any less guilty of violating the
rights of a free press. Tyrannical governments often try to cloak their
human rights violations in national statute. It is interesting, however,
that no country has ever legalized torture except, arguably, Israel,
until the Israeli Supreme Court struck down the provision for the use of
"moderate physical pressure," and even while that provision was on the
books, the Israeli government argued vehemently that such pressure was
not the equivalent of torture.

To see more clearly the shoals upon which the "torture warrant"
flounders, consider this. There is no doubt that despite official
efforts to eradicate it, police brutality is practiced in many US
jurisdictions and probably always will be. Some police officers will
claim, in their more candid moments, that the use of excessive force is
often the only way to protect the lives of officers and the general
public. Why ought the police not be able, therefore, to apply for
"brutality warrants" in specialized cases? Why ought police officers who
believe that a little shaving of the truth on the witness stand is worth
sending a bunch of drug pushers to prison, thus protecting hundreds of
youngsters from a life of drugs and crime, not be able to seek
"'testilying' warrants"? Why ought correctional officers who argue that
allowing dominant male prisoners to rape other prisoners helps preserve
order among thugs and thus protects the lives of guards not be allowed
to seek "warrants to tolerate prisoner rape" in particularly dangerous
situations? The answer in all cases is the same: because the act itself
(brutalizing citizens; committing perjury; facilitating rape) is itself
abhorrent and illegal. Dershowitz's analogy to search warrants fails
because, while a particular search may itself be illegal, the act of
searching is not ipso facto unethical or a crime. For a society
to start providing its imprimatur to criminal acts because they are
common or may appear to provide a shortcut to admirable ends is an
invitation to chaos.

But even if torture were a licit activity under some circumstances,
there are very good pragmatic reasons to reject its use. If the ticking
bomb scenario were designed only to establish the abstract moral
calculus that the death of X number of people constitutes a greater evil
than the torture of one, it would certainly be possible to make a
plausible utilitarian argument for torture. The problem is, however,
that the proponents of the ticking bomb scenario want it to serve as the
basis of public policy, and unfortunately reality rarely conforms to
scenarios and life doesn't stop where the scripts do. How strange that
though the ticking bomb scenario has been used for decades to justify
torture, its defenders are unable to cite the details of even one
verifiable case from real life that mirrors its conditions.

Perhaps, upon reflection, that is not so strange. For what the ticking
bomb case asks us to believe is that the authorities know that a bomb
has been planted somewhere; know it is about to go off; know that the
suspect in their custody has the information they need to stop it; know
that the suspect will yield that information accurately in a matter of
minutes if subjected to torture; and know that there is no other way to
obtain it. The scenario asks us to believe, in other words, that the
authorities have all the information that authorities dealing with a
crisis never have.

Even aficionados of ticking bomb torture agree that its use can only be
justified as a last resort applicable to those we know to a moral
certainty are guilty and possess the information we seek. That 45
percent of Americans who reported last October that they approved of
torture were approving of the "torture of known terrorists if they know
details about future terrorist attacks." But how do we know all that?
The reason torture is such a risky proposition is exactly because it is
so difficult to tell ahead of time who is a terrorist and who is not;
who has the information and who does not; who will give the information
accurately and who will deceive; who will respond to torture and who
will endure it as a religious discipline. The fact is that many people
suspected of being terrorists turn out not to be, as our experience
since September 11 has proven so well; that, historically, many of those
subjected to torture are genuinely ignorant of the details the
authorities seek; that the information protracted with torture is
notoriously unreliable; and that torture almost always takes a long
time--days and weeks, not hours and minutes--to produce results. Torture
is of course extraordinarily common. Almost three-fourths of the world's
countries practice it. But not to find ticking bombs. To punish
political opponents. To intimidate their allies. To cow a citizenry. The
ticking bomb scenario in its purest form is a fantasy of "moral" torture
all too easily appropriated by tyrants as an excuse to justify the more
mundane variety.

And if the ticking bomb scenario is a fantasy, the Dershowitzian
addition of a "torture warrant" makes it into a chimera. Here is a
situation Dershowitz envisions for the warrant's use:

Had law enforcement officials arrested terrorists boarding one of the
[September 11] airplanes and learned that other planes, then airborne,
were headed toward unknown occupied buildings, there would have been an
understandable incentive to torture those terrorists in order to learn
the identity of the buildings and evacuate them.

This assumes that those law enforcement officials would have had time in
the hour and a half or so between the boarding of the planes and the
impact on their targets to (1) take the suspects into custody; (2)
ascertain with enough certainty to warrant torture that the suspects
were (a) terrorists who (b) had the needed information in their
possession; (3) apply to a judge for a torture warrant and make the case
for one; (4) inflict torture sufficient to retrieve the necessary facts;
(5) evaluate the validity of those facts in order to be assured that no
innocent plane would be identified and blown out of the sky; and (6)
take the steps required to stop or mitigate the terrorist act. Perhaps
after John Ashcroft has been Attorney General another three years, law
enforcement will have learned to cut enough corners of the legal
niceties to accomplish this feat. But at the moment, given the INS, Tom
Ridge, bureaucratic infighting and all, it seems unlikely.

Which leads to the question of whether, if the United States were to
become the first country in the world to adopt "torture warrants," they
would make us safer. That, after all, is presumably the only ultimate
rationale for their use. But here is another place where the traditional
ticking bomb case explodes in the face of reality. For it assumes that
there are no further detrimental consequences once the victims of the
bombing are saved--no retaliatory strikes, for example, by the torture
victim's comrades to pay back the inhumanity done to their brother. It
doesn't take much imagination to see how quickly officially authorized
torture would diminish the credibility of a struggle against terrorism
that is being fought in the name of defending American values and the
rule of law. How many people would need to be tortured before our allies
threw up their hands in disgust and our adversaries started celebrating
their moral victory? How many innocent people would have to be
brutalized before their resentment and that of their friends and family
would spill over into violence? In his book No Equal Justice law
professor David Cole has shown how mistreatment of the innocent by US
police can alienate entire communities and result in increases in crime.
Torture, similarly, is a sure-fire way to manufacture an embittered
opponent of the United States where there was none before. And make no
mistake that innocent people would be tortured, warrant or no, for,
after all, if close to 100 innocent people have been convicted of
capital crimes and sentenced to death in this country despite all the
protection our legal system offers, how much more likely is it that
miscarriages of justice will flow from the pen of a single judge?
Whatever leadership the United States can claim in the world is
intimately linked to our practice of values universally regarded as
fundamental to a civilized people.

So how could a distinguished human rights advocate like Alan Dershowitz
have strayed so far from the mark? Part of it may have to do with the
philosophical basis for rights that he sketches in the beginning of his
book. Wisely rejecting the notions that rights are derived from deity or
natural law and yet unconvinced that positivism alone provides
sufficient heft for rights claims, Dershowitz adopts what he calls the
"experiential-advocacy approach." In effect, he says, we should look to
history to identify prototypical instances of injustice (slavery, for
example) and then, based upon that human experience, construct a set of
rights--free speech, due process--that are most likely to bring about
the type of society in which we would want to live. So far, so good.
Human rights are assuredly derived from human experience.

But what if you disagree with my vision of the good society? The best we
can do, Dershowitz insists, is to try to argue you out of your myopia:
"That is all I can do," he says. "Defend my preference for [certain]
rights.... But I make no claim for these rights beyond my ability to
persuade you to agree with me that history--especially the history of
wrongs--has shown these rights to be important enough to be given a
special status in the hierarchy of preferences. It may surprise you to
learn that for me there is no sharp line...separating rights from
strongly held preferences." It is here that Dershowitz stumbles.

For while rights are, in a sense, preferences, they are also more than
that: They are norms, behavioral norms necessary to create and sustain a
good society. And they become norms not through argument alone but
through its conclusions, through an articulated consensus of the
international community. One of the most astonishing lacunas in the
philosophical section of Shouting Fire is the absence of even one
mention, if the index and my reading are to be believed, of the
Universal Declaration of Human Rights. For while the UDHR did not set
out to be a legally binding treaty (the State Department called it in
1948 "a hortatory statement of aspiration") and hence avoids the limits
of positivism, it does reflect--imperfectly, to be sure, but as well as
possible within the current limits of human endeavor--what St. Augustine
called our "overlapping loves," our common measures of a decent world.
To those who disagree with its vision of that world, we can offer much
more than a shouting contest, much more than any one person's reading of
history or any one nation's perception of its needs. We can offer the
collective wisdom of the human community as hammered out, written down
and, more and more frequently, enforced. And part of that wisdom is that
torture is wrong. Everywhere. In all circumstances. With or without
warrants.

Alan Dershowitz may not like that. And he is certainly entitled to go on
arguing about it. He is a persuasive fellow and eventually he may even
succeed in helping erode the international prohibitions on torture. That
will be a sad day, no doubt, but how comforting it will be to know at
that point that, thanks to the professor, the needles will be
sterile.

When I was a teenager on my first trip to Paris, I remember looking out
at the Parisians from the window of a taxi as we proceeded along some
splendid boulevard and thinking, But do these people take themselves
seriously, really? They're not Americans, after all. Sorry. It's true,
though embarrassing. I felt sorry for them because they weren't us. I
needed a reality check, which the French were only too happy to provide.
They soon taught me how superior to us, and to me, they were in every
way, especially intellectually and in matters of literature, fashion,
proper cigarette inhalation and the application of maquillage.

Well, let that pass. Now Granta has published the greater part of
an issue (Spring 2002) devoted to Their perceptions of Us, called "What
We Think of America." Interestingly, the writer who is possibly the most
violently anti-American in the collection, or who admits to the most
violently anti-American feeling, is not French, or Arab, but Latin
American. Ariel Dorfman, the US-born Chilean writer, tells about the
time he watched an American toddler tumble into a swimming pool at a
resort in the Andes and carefully measured what his own reaction might
be--after all, the kid had been behaving badly (loud, blond, white,
Anglophone, whining, stupid, spoiled, exploitive, rapacious,
intervening, assassinating legitimate heads of state, financing coups,
training torturers... oops... but really, you catch Dorfman's drift). In
the end, though, he did dive in after the brat.

There is the gentler French person, badboy Benoît Duteurtre,
author most recently of the novel Le Voyage en France, which won
the 2001 Médici prize. Duteurtre criticizes Europe for
proclaiming a high ground in human rights from which to criticize the
Americans, as if, he says, to disguise from itself that it belongs to
exactly the same world and is mired in identical contradictions. He
makes fun of the way the French use the word Disneyland (pronounced
Deez-nee-lahhhhnd) to refer to the entire American polity.
President Jacques Chirac--that unsuccessful chameleon--comes in for a
smacking, too. In Chirac's speech after September 11, Duteurtre writes,
"I heard the inferiority complex of a Europe deprived of its role as
world leader...but still quick to judge good and evil."

The effect of Granta's roundup is shockingly human: Here are no,
or few, diatribes, and much affection--through tears--from Arab and
Muslim contributors. A piece that perhaps explains well what led to
September 11 (which I take to be the ostensible reason for
Granta's package) is Pankaj Mishra's "Jihadis," a beautiful,
brilliantly observed essay about Pakistan (by an Indian!) and its
troubled identity, as well as about the US and Pakistani governments'
growth and nurturing of the jihad movement. Gives you an idea, too, of
the level of corruption that made the initially pure-minded Taliban
attractive--at first.

This, to me, is the best issue of any magazine trying to explain
September 11. There is also Ziauddin Sardar's "Mecca," both funny and
instructive about the rituals of the hajj and of Saudi society in
general. Don't forget to appreciate the photo essay on Afghanistan by
Thomas Dworzak: It captures the dust, the mud, the turbans, the
mountains, as well as Northern Alliance soccer, burqa ladies buying
their liberation pop-music cassettes and the eerie ruins of eternal
Kabul, after the attacks.

Out on the Links

Sometimes, the problem with online magazines like The Black
Commentator (www.blackcommentator.com) can be the links. For
example, in the inaugural (April 2002) issue, there's a very persuasive
piece on the much-discussed Cory Booker, running for mayor of Newark in
the Democratic primary against the picaresque Sharpe James. Booker,
another dang Rhodes scholar, seems to pride himself on adopting some of
the meretricious conservative bent of Bill Clinton. The TBC piece
attacks Booker for his support of school vouchers and goes on to map out
in great detail the web of conservative groups that have supported the
Booker movement in Newark--not a pretty picture. It argues that Booker
is another pawn in the right's effort to develop African-American
politicians it can work with and manipulate.

The piece has no byline. But at the end, it has a feature possibly more
meaningful than a byline: "sources that contributed to this commentary,"
followed by a series of hyperlinks to information both pro- and
anti-Booker. In his speech at the Manhattan Institute, you can
hear--behind Booker's pro-voucher position--not only the clink of money
and financial backing and the Evil White Rich Men Who Run The World but
also the will of a black electorate with whom Booker, having lived in
Newark's projects and spent month after month on a notorious
never-cleaned-up corner in Newark's drug-dealing inner city, is not
unfamiliar. The problem with TBC is its paranoid style: I'd like
to see it address the question of why there seems to be a drift among
African-American voters toward conservatism--something that doesn't just
tell me the new black pols are being paid for it but that considers the
electorate as well, considers Booker's supporters: what they think of
people like Colin Powell or the improbably named Condoleezza Rice, or of
Cory Booker, who's no idiot. Don't some black families hold these
successful conservative types up as examples to their sons and
daughters, or is that just too Cosbyfied?

A Corrective

Al-Ahram Weekly, a venerable English-language publication based in Cairo
(www.ahram.org.eg/weekly), is
another paper that for themoment is focusing on an oppressed people--in
this case, the Palestinians. Al-Ahram is a useful corrective for
my formerly peace-leaning Jewish friends who feel that the US media,
especially the New York Times and CNN, are increasingly biased
against Israel. It's a real source for uncovered news about what's
happening in the territories, with much less of the myth-making and
demonizing that characterize so much of the Palestinian stuff coming out
of the West Bank over the Internet in these impossible times. Much less
paranoia here but, still, a painful and useful reality check.

On the morning of April 20, in the nation's capital, activists held two anti-war rallies, each of which drew thousands, almost within sight of one another.

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