If Gen. Augusto Pinochet had not been arrested in England on the night of October 16, 1998, the truth about his crimes would never have been fully revealed and democracy in Chile might have remained in a state of arrested development.
Eight years after Pinochet relinquished power, he still cast a long shadow over Chilean society. The Senate was stacked with his supporters. The Chilean courts lacked true independence. Painfully little progress had been made in restoring democratic rights to the importance they had enjoyed before the military takeover. Although a majority of Chileans hoped that Pinochet would stand trial for the atrocities committed during his rule, the "Senator for Life" benefited from parliamentary immunity and a 1978 amnesty that the military had granted itself. In the face of Pinochet's lingering power, the elected government quickly abandoned its pledge to seek derogation or annulment of the self-amnesty law. Indeed, despite a highly regarded report by a government-sponsored truth commission, proof of Pinochet's own role in the worst atrocities remained largely circumstantial.
Pinochet's arrest by British police, and his seventeen months of humiliating detention, changed all that, unleashing a renewed debate in Chile about the legacy of the military government and rekindling hopes of justice for Pinochet's thousands of victims. Previously timid Chilean judges began looking for chinks in the dictator's legal armor. After decades of silence, Pinochet's former collaborators stepped forward to tell of his role in covering up atrocities, revelations that have had a snowball effect.
The number of criminal cases against Pinochet jumped to dozens, then hundreds. By the time British Home Secretary Jack Straw sent Pinochet back to Chile, ostensibly on health grounds, the myth of his immunity had been totally shattered.
The reinvigorated Chilean courts skirted the 1978 military self-amnesty by ruling that prosecutions of ongoing "disappearances" are not barred, because the crime continues as long as the fate of the victim is concealed. Pinochet could thus be prosecuted for his role in the "Caravan of Death," a helicopter-borne military group that executed and "disappeared" seventy-five political prisoners shortly after the 1973 coup. In a historic ruling last August, the Chilean Supreme Court lifted Pinochet's senatorial immunity. Months later he was formally indicted by a Chilean judge for murder and disappearances and placed under house arrest, something that would have been simply inconceivable two years ago.
At several stages, Pinochet's shrill and seemingly powerful supporters--the military, the wealthy and the principal newspapers they own--sought to create an institutional crisis with gestures of defiance; but each time they backed down in the face of government and popular support for the rule of law.
When Pinochet was questioned about the Caravan of Death by the investigating judge, a historic act in itself, he seemed to pass the buck down the chain of command. This prompted Joaquin Lagos, a retired general who commanded a prison visited by the caravan, to go on television in January--the first time he had told his story publicly. He was graphic: "They took out [the victims'] eyes with knives, broke their jaws, their legs and then killed them." He said he reported the killings in writing to Pinochet, who rather than reprimanding the murderers asked Lagos to alter his report. A week later, Chilean newspapers published a document bearing Pinochet's signature with orders to cover up the torture of a political opponent.
According to Roberto Garretón, a leading Chilean human rights lawyer, "October 16 [Pinochet's London arrest] was fundamental, so that we could at last complete our transition to democracy."
The Pinochet case has inspired victims of abuse in country after country, particularly in Latin America, to challenge the transitional arrangements of five and ten years ago, which allowed the perpetrators of atrocities to go unpunished and, often, to remain in power. These temporary accommodations with the ancien régime did not extinguish the victims' thirst to bring their former tormentors to justice. In Guatemala, a powerful UN-sponsored truth commission report issued in 1999, which charged that the military, with US support, committed acts of genocide against Mayan Indians, has spurred victims to seek redress in the courts of both Guatemala and Spain. In Argentina, years after amnesty laws put an end to "Dirty War" prosecutions, eleven officials, including four members of the military juntas, are either in jail or under house arrest for "baby-snatching," the theft of the children of disappeared mothers; and just weeks ago, on March 6, an Argentine judge boldly struck down the 1987 amnesty laws as a violation of both the national constitution and international law.
At the same time, Pinochet's London arrest reflected, and strengthens, a new (though uneven) international movement--spurred by the twin genocides of the 1990s in Bosnia and Rwanda, and facilitated by the end of the cold war--to end impunity for the worst abuses. After the creation of United Nations tribunals for Yugoslavia and Rwanda, in 1998 the UN voted overwhelmingly in Rome to establish an International Criminal Court to prosecute future genocides, crimes against humanity and serious war crimes when national courts are unable or unwilling to do so. The United States, after failing to win a 100 percent guarantee that no US soldier or policy-maker would ever be prosecuted, was one of only seven countries to oppose the Rome treaty. President Clinton did sign the treaty, however, to remain involved in the court's formation, and though the Bush Administration may be less willing to play along, much less ratify it, the ICC is sure to have the needed sixty ratifications (it now has twenty-nine) within a few years.
"International justice" is already beginning to be a plausible backstop when national justice fails or a perpetrator flees. In Sierra Leone and Cambodia, the UN is preparing to sponsor tribunals together with local authorities. Former dictator of Chad Hissène Habré was arrested on torture charges last year in his Senegalese exile. (The Senegalese Court of Final Appeals ruled in March that he could not be tried there, but human rights groups are now seeking his extradition to stand trial in Belgium.) The Mexican government has agreed to extradite to Spain an Argentine naval officer accused by Judge Baltasar Garzón of torture. A Dutch court is pressing charges against former Surinamese military strongman Desi Bouterse for the 1982 killing of fifteen government opponents. Shadowy Peruvian spymaster Vladimiro Montesinos was surprised to find that in the post-Pinochet world he was denied exile even in Panama, which had acquired something of a reputation as a safe haven for the world's washed-up dictators. (Raoul Cédras of Haiti and Jorge Serrano of Guatemala are there now; in the past it hosted the Shah of Iran.) On March 20, in a landmark ruling, the Inter-American Court of Human Rights said that the amnesty laws of Peru violated the American Convention on Human Rights.
Like Chile's prosecution of Pinochet, Serbia's recent arrest of former Yugoslav president Slobodan Milosevic on corruption charges also illustrates the dynamic interplay between international and national justice. Milosevic's indictment by the Yugoslavia war crimes tribunal, and the international pressure on Serbia to act, certainly facilitated the dramatic move--and like the arrest of Pinochet, the showdown in Belgrade has further weakened Milosevic, who is sure to be discredited even more as details of his crimes emerge. Of course, prosecuting Milosevic in Serbia on corruption charges can never provide justice for the hundreds of thousands of non-Serb victims of wartime atrocities in Bosnia, Croatia and Kosovo, and the international community is right to insist on Milosevic's transfer to The Hague to face trial for his worst crimes.
All these events have revived the debate over what has become known as "transitional justice"--or, as Ruti Teitel phrases it in her book of that name, "How should societies deal with their evil past?" Teitel's book offers a historical and comparative analysis of the problem and, while dense and at times repetitive, raises the key practical, legal and moral dilemmas facing transitional regimes. "What emerges," she writes, is a "pragmatic balancing of ideal justice with political realism." Focusing on the role of the law itself in times of transition, Teitel observes that "legal practices bridge a persistent struggle between two points: adherence to established convention and radical transformation.... the jurisprudence of these periods does not follow such core principles of legality as regularity, generality, and prospectivity--the very essence of the rule of law in ordinary times."
At the heart of the matter is whether to prosecute those who have committed atrocities. Most people would agree that leaders who organize mass murder, torture and the like should be brought to justice. The history of the past fifty years, however, reveals that until very recently, butchers like Pinochet, Idi Amin, Ferdinand Marcos, Anastasio Somoza and Mengistu Haile Mariam were less likely to end up behind bars than a squeegee man from the streets of New York. In Teitel's words, "transitional practices show trials to be few and far between, particularly in the contemporary period." The reason was sometimes pragmatic--these tyrants were offered a way out to induce them to hand over power without making their people suffer further. As Teitel notes, the legal and practical questions are also not trivial. Often the courts are so corrupted that a fair trial is impossible. When the crimes were committed at the regime's outset, there are problems of statutory limitations. It is impossible to prosecute all the perpetrators in criminal regimes, but selective prosecutions can also create injustice.
Enter truth commissions. They were first established in places like Argentina and Chile, where deniable disappearances made truth the first order of the day. But it is South Africa's Truth and Reconciliation Commission that, "though flawed in many ways, has set a high standard for future commissions," in the words of Robert Rotberg in his excellent introduction to the subject in Truth v. Justice, an engaging collection of essays mainly about South Africa. The contributors examine the TRC and debate the fundamental moral question suggested by Amy Gutmann and Dennis Thompson: Can one "sacrifice the pursuit of justice as usually understood for the sake of promoting other social purposes such as...reconciliation"?
The TRC was an explicit political compromise between the broad amnesty that apartheid leaders sought and the prosecutions proposed by the African National Congress, which would have antagonized any hope of a peaceful transition. The ingenious solution was to keep the prosecution option open (some were indeed conducted) but grant individual amnesties for those who came forward and told the truth about their crimes, in public and often on television. This quasi-penal process encouraged confession and transparency. As Ronald Slye says in his essay in Truth v. Justice, the TRC's was "the most sophisticated amnesty undertaken in modern times, if not in any time, for acts that constitute violations of fundamental international human rights." The TRC process has been rightly challenged because it focused not on the apartheid system itself, including massive displacements and the pass system, but on "excesses" that even apartheid considered criminal, like murder and torture. And while there were a number of dramatic examples of victimizers and victims embracing, there was no requirement that the perpetrators atone or ask forgiveness to obtain amnesty. A respected poll showed that two-thirds of South Africans believed that the TRC investigations led to a deterioration of race relations. Nevertheless, "it can safely be said that South Africa is a better country in light of the accomplishments" of the TRC, as Richard Goldstone writes in a short essay in his book. The TRC's major accomplishment, says Goldstone, a leading South African judge who went on to become the first prosecutor of both the Rwanda and Yugoslavia tribunals (about which he also writes), is that no one now can deny the worst manifestations of apartheid.
Yet the human rights movement now faces a "South Africa problem": While the TRC amnesty-for-truth process merits respect as the most honestly designed transitional arrangement short of "real" justice (i.e., prosecution), most of its counterparts around the world are producing or promising a lot more amnesty than truth. The conditions in South Africa, particularly the credible threat of widespread prosecution, which brought all manner of perpetrators forward, are hard to replicate elsewhere, especially in the developing world. At the same time, prosecutions, as we have seen, are much more politically possible than just five years ago.
Yet it seems that because of South Africa, the international community has become blindly besotted with truth commissions, regardless of how they are established and whether they are seen as precursors or complements to justice or, very often now, as substitutes for justice.
According to Priscilla Hayner in Unspeakable Truths, her useful analysis of truth commissions around the world, they are "fast becoming a staple in the transitional justice menu of options." Truth commissions can indeed produce important results. They can uncover hidden abuses and lift the veil of denial, help a fractured country come to grips with its past, provide a platform for victims and propose structural reforms. But to be as effective as the TRC, truth commissions must be independent, well resourced and endowed with subpoena power; must hold public hearings when necessary; and must be able to name the accused publicly. Few commissions today meet these criteria.
Commissions can also lay the groundwork for reparations to the victims in a way that trials probably cannot. My own experience bears out Hayner's observation that "especially for the very poor, the possibility of receiving financial assistance seems to be a primary reason to come forward to give testimony." In Chile the families of those listed by the commission as killed or disappeared (but not those tortured) receive monthly checks for life. In Argentina, litigation before the Inter-American Commission on Human Rights has resulted in payments to families as well as to those wrongly detained or exiled. As Hayner points out, however, "in very poor states, or where hundreds of thousands of persons were killed or disappeared, substantial individualized monetary compensation may simply not be feasible." Indeed, the compensation recommended by the El Salvador and Haiti commissions has never materialized. Even in South Africa, victims remain frustrated in their attempts to win meaningful compensation.
"Reconciliation," on the other hand, even if it could be defined, is too contested an ideal on which to base policy. Many victims, particularly in Latin America, see "reconciliation" without contrition by the perpetrators (or their punishment) as a cruel joke. Argentine journalist Horacio Verbitsky, who spearheads the campaign to overturn Argentina's amnesty law, says that "to try to impose reconciliation between the families of the victims and their executioners would be sadistic from an individual point of view and irrelevant for society. The only solid base on which to build the future is for all citizens to accept the law and its procedures." This echoes David Crocker in Truth v. Justice: "It is morally objectionable as well as impractical for a truth commission...to force people to agree about the past, forgive the sins committed against them, or love one another." On a more practical level, Hayner quotes Argentine activist Juan Mendez as saying that in his country reconciliation "was a code word for those who wanted nothing done."
Yet to many international donors, reconciliation is a feel-good idea, while justice, as we are seeing now in Chile, is a potentially messy affair in which there are not only winners but losers. But the perpetrators of atrocities should be losers. Hayner defines truth commissions as bodies that "investigat[e] politically motivated or politically targeted repression that was used as a means to maintain or obtain power and weaken political opponents." If the leaders used repression to empower themselves, then in an ideal transition they are disempowered, something that trial, conviction and punishment does most effectively.
In the best of cases, of course, truth commissions can lead to justice, and the two are naturally complementary. Hayner correctly notes that in Argentina and Chad the facts compiled by truth commissions were later used by prosecutors. But Hayner, who is regularly consulted in the establishment of truth commissions, too easily brushes off the charge that there is no trade-off between truth and justice. She quotes a Guatemalan minister of defense: "We are fully in support of a truth commission. Just as in Chile: truth, but no trials." (In fact, the Guatemalan truth commission has given impetus to justice efforts.) Into the early 1990s, truth may have been the best the victims could hope for. Today it is increasingly seen by abusive governments as a soft option for avoiding justice.
Sierra Leone, in a somewhat different context, illustrates the folly of trading justice for truth. The brutal civil war waged by the rebel Revolutionary United Front was characterized by the most revolting abuses I have personally witnessed, including the rebels' signature atrocity of cutting off the arms of civilians. A peace agreement signed in July 1999 included, with South Africa in mind, a blanket amnesty and a truth commission. In a historic move, the UN, under pressure from rights activists, backed away from the pact's amnesty, but no steps were actually taken to bring the perpetrators to justice. Not surprisingly, within months the rebels were at it again. Only when they made the mistake of attacking UN peacekeepers, however, was rebel leader Foday Sankoh arrested, and a UN-sponsored tribunal is now being established to try Sankoh and his henchmen.
Truth commissions can also divert international attention and scarce resources from justice efforts. In Haiti, where I worked with President Aristide's minister of justice, we were explicitly told by international donors that they could not fund a special prosecutor's office--the government's priority--because they were supporting a truth commission (whose report, published years after its completion, only confirmed what people already knew about coup-era repression).
It is true that trials are more demanding and costly than truth commissions. Criminal guilt must be proved beyond a reasonable doubt. It's one thing to say that thousands were killed under Pinochet; it is harder to prove his personal guilt in a particular case. But because most commissions rely on victim testimony, they fail to infiltrate the repressive apparatus, which, as we are now seeing in Chile (and as any prosecutor of organized crime knows), is the best way to establish the individual responsibility of top officials. And while truth commissions can elicit broader historical truths than trials, the value of this will depend on whether the crimes were carried out in a manner designed to evade responsibility (say, by disappearances or death squads) or whether, as in Bosnia, Rwanda and Sierra Leone, they were incited and practiced in the open.
At least where they are politically possible, there are other powerful reasons to use trials. Truth-telling, however complete, simply does not adequately address the gravity of many crimes. As Aryeh Neier has argued, the results of a truth process would not have been commensurate to the criminality that took place in Rwanda or Bosnia. Trials are a foundational and forward-looking affirmation that no group, including public officials and the armed forces, is above the law and that the new democracy will not tolerate such behavior. (Teitel argues that they are, at the same time, backward-looking.) Indeed, trials can emphasize that a transition to democracy has been successful by demonstrating that the ancien régime is too weak to impede them. Trials also enable victims to establish or recover their dignity as holders of legal rights. In Haiti, the total impunity with which a small elite literally got away with murder and plunder for generations had left the poor majority assuming that they had no rights. Trials can also (if conducted fairly) juxtapose the meticulous rules of due process with the conduct of the accused. While it was a rich irony that Pinochet, whose war tribunals conducted sham trials and ordered the summary execution of political opponents, would take advantage of the full measure of British rule of law for well over a year, it was precisely in honor of the rule of law that he was prosecuted.
The argument that if perpetrators are threatened with prosecution they will not relinquish power, or will undermine a new democracy, deserves attention. In some negotiated transitions, such as South Africa, this may be true and should impose a responsible caution. In most cases, however (think of Cédras and Duvalier in Haiti, Stroessner in Paraguay, Idi Amin in Uganda, Mobutu in Zaire, Suharto in Indonesia), bloody despots are overthrown or leave kicking and screaming when their time is up anyway. Last year, it was widely argued that to induce Slobodan Milosevic to step down, he should be assured that he would not be prosecuted. No such assurances were made, and he not only gave up power, he is now being prosecuted domestically and is likely to stand trial one day before a war crimes tribunal. Fears of destabilization are often brandished by successor governments that would rather accommodate the ancien régime than invest the political capital in disempowering it further. In Chile, forebodings expressed by opponents of Pinochet's arrest (including the elected government) that "reopening old wounds" would threaten the country's democracy were revealed to be largely a bluff--democracy has in fact been strengthened. In Argentina in 1987, after trials of the top generals threatened to spread to more junior military officers, rebellious officers began a mutiny. In a tense moment for the young democracy, civilians surrounded the barracks and some 200,000 people gathered in the Plaza de Mayo to support the constitutional order. Rather than capitalizing on this public outpouring to strengthen civilian control, President Raul Alfonsín asked the throngs to go home and then halted further prosecutions. While it is hard to second-guess a president with solid democratic credentials faced with a very real revolt, it is undeniable that his path of lesser confrontation led to spiraling military demands, including the eventual pardons of those already convicted, and the consequent weakening of democratic institutions.
While the House of Lords was hearing arguments that would lead to its famous decisions that Pinochet was not immune from torture charges, South Africa's last apartheid president, F.W. de Klerk, was across London releasing his autobiography. "Would an apartheid criminal who has been granted an amnesty...be liable to be prosecuted for crimes against humanity in a non-South African court?" asks Richard Goldstone in For Humanity. Goldstone has "no doubt that such a prosecutor [of a foreign court or the future ICC] should not be inhibited by national amnesties. In international law they clearly have no standing and would not afford a defense to criminal or civil proceedings before an international court or a national court other than that of the country that grants the amnesty. That does not mean that in deciding on an investigation or prosecution, the prosecutor will not take into account" the circumstances of the amnesty. Goldstone sensibly proposes that "an international prosecutor ignore self-amnesties of the kind granted to General Pinochet," which unfortunately are the norm around the world. On the other hand, he suggests that it would be appropriate in the South African case for the prosecutor, in the exercise of his or her discretion, to take into account the fact that the individual amnesties were granted pursuant to a scheme "approved by a democratically elected legislature--a legislature that is representative of the victims of apartheid."
One area begging for a truth commission is US support for atrocities abroad. Because the US public would not have countenanced open and notorious American support for crimes against humanity, there was usually, as in Nicaragua or Chile, a layer of deniability, either about the crimes or about US support or, as in East Timor in 1975, a virtual news blackout. The national truth commissions in El Salvador, Chile and Haiti were disappointingly silent on US complicity. Their counterparts in Guatemala and Chad were less shy. As a result of recent Pinochet-driven disclosures, the fuller US role in undermining Chile's democracy and then in knowingly supporting Pinochet's crimes is coming to light. Proving the individual criminal (as opposed to political) liability in specific abuses of high-ranking American policy-makers such as Henry Kissinger may not be easy and prosecutions politically unlikely (especially as Dr. Kissinger now watches where he travels). But a full airing of US cold war support for abusive forces in places like Chad, El Salvador, Greece, Haiti, Indonesia and Nicaragua (and direct US atrocities in Cambodia, Laos and Vietnam) by an officially appointed nonpolitical panel could establish an important historical record, promote a measure of accountability and, if the United States were ready to apologize (as Clinton recently did to Guatemala), foster a kind of reconciliation with the countries whose people suffered the abuses.
When NAFTA was adopted in 1993, Chapter 11 in the trade and investment agreement was too obscure to stir controversy. Eight years later, it's the smoking gun in the intensifying argument over whether globalization trumps national sovereignty. Chapter 11 established a new system of private arbitration for foreign investors to bring injury claims against governments. As the business claims and money awards accumulate, the warnings from astute critics are confirmed--NAFTA has enabled multinational corporations to usurp the sovereign powers of government, not to mention the rights of citizens and communities.
The issue has exquisite resonance with the present moment. On April 20 thirty-four heads of state gather in Quebec City to lead cheers for a Free Trade Area for the Americas. The FTAA negotiations are designed to expand NAFTA's rules to cover the entire Western Hemisphere. The Quebec meeting should provide good theater but not much substance. Tony Clarke of the Polaris Institute, in Ottawa, says the meeting is intended to be "a face lift for the whole global agenda, by portraying free trade as democracy." Protesting citizens will be in the streets, challenging 6,000 police and Mounties, with an opposite message: Democracy is threatened by the corporate vision of globalization.
Chapter 11 of NAFTA should become a defining issue for FTAA negotiations. Many, including Clarke, vice chairman of the Council of Canadians, believe corporate governance was and is the FTAA's intent. "There is a conquering spirit at the heart of all this," he says, adding that the corporations' attitude is: "We have to get into every nook and cranny of the world and make it ours."
Chapter 11 provides a model of how this might be accomplished. The operative principle is that foreign capital investing in Canada, Mexico and the United States may demand compensation if the profit-making potential of their ventures has been injured by government decisions--"tantamount to expropriation." Thus, foreign-based companies are given more rights than domestic businesses operating in their home country. For example:
§ California banned a methanol-based gasoline additive, MTBE, after the EPA reported potential cancer risks and at least 10,000 groundwater sites were found polluted by the substance. Methanex of Vancouver, British Columbia, the world's largest methanol producer, filed a $970 million claim against the United States. If the NAFTA panel rules for the company, many similar complaints are expected, since at least ten other states followed California's lead. The federal government would have to pay the awards. California State Senator Sheila Kuehl and others have asked the US Trade Representative to explain how this squares with a state's sovereign right to protect health and the environment.
§ In Mexico, a US waste-disposal company, Metalclad, was awarded $16.7 million in damages after the state of San Luis Potosí blocked its waste site in the village of Guadalcazar. Local residents complained that the Mexican government was not enforcing environmental standards and that the project threatened their water supply. Metalclad's victory established that NAFTA's dispute mechanism reaches to subnational governments, including municipalities.
§ In Canada, the government banned another gasoline additive, MMT, as a suspected health hazard and one that damages catalytic converters, according to auto makers. The Ethyl Corporation of Virginia, producer of MMT, filed a $250 million claim but settled for $13 million after Canada agreed to withdraw its ban and apologize.
§ The Loewen Group Inc., a Canadian operator of far-flung funeral homes, lodged a $750 million complaint against the United States, claiming that a Biloxi, Mississippi, jury made an excessive award of $500 million when it found Loewen liable for contract fraud against a small local competitor.
§ Sunbelt Water Inc. of California has filed the largest and most audacious claim--seeking $10.5 billion from Canada for revoking its license to export water by supertanker from British Columbia to water-scarce areas of the United States.
§ Canada's Mondev International is claiming $50 million from the United States because the City of Boston canceled a sales contract for an office building with a shopping mall. Boston invoked sovereign immunity against such lawsuits and was upheld by a local judge and the Massachusetts Supreme Court. The US Supreme Court declined to hear the appeal. So the company turned to NAFTA for relief.
"When just the threat of a Chapter 11 action may suffice to wrest a financial settlement from a government, investors have unprecedented leverage against states," Lydia Lazar, a Chicago attorney who has worked in global commerce, wrote in Global Financial Markets magazine. Mexico, Canada and the United States effectively waived the doctrine of sovereign immunity, she explained, when they signed NAFTA.
As many as fifteen cases have been launched to date, but no one can be sure of the number, since there's no requirement to inform the public. The contesting parties choose the judges who will arbitrate, choose which issues and legal principles are to apply and also decide whether the public has any access to the proceedings. The design follows the format for private arbitration cases between contesting business interests. With the same arrogance that designed the WTO and other international trade forums, it is assumed that these disputes are none of the public's business--even though public laws are under attack and taxpayers' money will pay the fines. The core legal issue is described as damage to an investor's property--property in the form of anticipated profits. The NAFTA logic thus establishes the "regulatory takings" doctrine the right has promoted unsuccessfully for two decades--a retrograde version of property rights designed to cripple or even dismantle the administrative state's regulatory powers. "NAFTA is really an end run around the Constitution," says Lazar.
The fundamental difference in Chapter 11, unlike other trade agreements, is that the global corporations are free to litigate on their own without having to ask national governments to act on their behalf in global forums. Clearly, some of the business complaints so far are more exotic than anyone probably anticipated. These initial cases will set precedents, however, that major global firms can apply later. If nobody stops this process, the national identity of multinationals will become even weaker and less relevant, Lazar points out, since they have status to challenge government as "an open class of 'legal equals.'"
In Canada a private lawsuit was filed recently challenging the constitutionality of Chapter 11, since Canada's Constitution states that the government cannot delegate justice to other bodies. The Canadian government, itself embarrassed by the cases against it, expressed doubt that Chapter 11 should be included in the hemispheric agreement, though it appears to be backing away from outright opposition. In US localities, the cases are beginning to stir questions, but lawmakers and jurists are only beginning to learn the implications.
Does George W. Bush understand what he is proposing for the Americas? Did Bill Clinton and Bush the elder understand the fundamental shift in legal foundations buried in NAFTA's fine print? They knew this is what business and finance wanted. As the public learns more, the smoking gun should become a focal point in this year's trade debate, confronting politicians with embarrassing questions about global governance. Who voted to shoot down national sovereignty? Who crowned the corporate investors the new monarchs of public values?
Angry over the Florida debacle, African-Americans may retaliate in 2002.
Remember the term "useful idiots"? Those were the well-meaning leftists who during the cold war couldn't distinguish between the beautiful dream of communism and the murderous reality of Soviet Stalinism. They blinded themselves to tyranny and weakened the democratic left by inviting redbaiting demagogues like Joe McCarthy and Roy Cohn to tar anticommunist socialists and liberals with the same Stalinite brush.
In the case of 28-year-old James Murdoch, chairman and chief executive of Star TV and the scion and possible heir to Rupert's massive media empire, the term "idiot" may be overly generous. Speaking to a Milken Institute gathering in Los Angeles shortly before the Chinese captured a US spy plane and held its crew, the onetime college dropout sang the praises of the Communist oppressors in Beijing in terms that might have made Mao blush. He attacked the global media for its coverage of Chinese human rights abuses, insisting that "destabilizing forces today are very, very dangerous for the Chinese government." He instructed Hong Kong's brave champions of democracy to accept the fact of an "absolutist" government. And he all but endorsed the persecution of what he called the "dangerous" and "apocalyptic" Falun Gong religious movement, which "clearly does not have the success of China at heart." (Some 150 adherents of the group have died in police custody and another 10,000 are currently in prison.)
The reason "idiot" is overly kind is that young Murdoch need only read his own publications to learn the truth about his beloved tyrants. According to the editors of the Murdoch-owned Weekly Standard, "China is the largest and most powerful despotism in the world" and a military threat to the United States, while "Communists, who cannot justify their dictatorial rule except by appeal to 'stability,' must inevitably behave this way: constantly inventing new 'instabilities'--and crushing them."
When I called various journalistic members of the conservative Murdoch fraternity--few of whom are ever at a loss for words--none were available to respond to the comments of young James. Over at Fox News, network president Roger Ailes and talk-show hosts Tony Snow and loudmouth Bill O'Reilly were unavailable. Mum was the word for New York Post editor in chief Ken Chandler as well as for Bob McManus, who edits the paper's editorial page, usually eager to scream at the top of its (metaphorical) lungs at the slightest provocation. Over at the Weekly Standard, editor and publisher William Kristol, executive editor Fred Barnes and senior writer Christopher Caldwell were apparently too busy to return my calls. Opinion editor David Tell was kind enough to point me to the article containing the above quotes but would say nothing about the magazine's proprietors. Senior editor and bestselling swami David Brooks was all charm and no information: "I'm sorry. I'm having some computer problems. At first I thought you were asking me to comment on the son of my employer. Must be some garble."
The issue is not exactly a new one for News Corp. employees. Rupert Murdoch has been the nation's most notorious Communist fellow-traveler for years. In hopes of protecting his considerable investments in China, he has proved willing to kick the BBC off his satellite network, cancel unfavorable books and pay millions to publish unreadable propaganda to curry favor with China's Communist gerontocracy.
Nevertheless, David Tell is correct when he points out that the Standard's editorial independence on the issue speaks for itself--and speaks pretty well. As Michael Kinsley has explained, it's just plain stupid to wait around for Slate "to give Microsoft the skeptical scrutiny it requires as a powerful institution in American society," and so it would be wishful thinking to hope that Standard editors would apply the same nasty epithets they like to trot out for honest liberals to the lying commie-boot-lickers who sign their checks. (Though now might be a good time for the magazine to apologize for the reprehensible slander it published, under Robert Novak's byline, attacking posthumously the good name of I.F. Stone, who denounced Soviet atrocities at considerable personal cost before most of its editors were born and, on his deathbed, defended the democratic dissidents in Tiananmen Square.)
Writing on his vanity website, Andrew Sullivan tsk-tsks the Standard's refusal to condemn the Murdochs, insisting, "A good test of any magazine's editorial integrity is its ability to criticize its proprietor." By that standard, The Nation should be Sullivan's favorite magazine, but I'll buy him dinner at Le Cirque if he can unearth a New Republic editorial attacking owner Marty Peretz's comically obsessive Jewish xenophobia and anti-Arab racism. And of course one doesn't read much about the dangers of cults that prey on confused young teenagers in the pages of Sun Myung Moon's Washington Times. Even Inside.com, which specializes in Talmudic real-time coverage of exactly the kind of deal its parent company, Powerful Media, recently made with Steven Brill, preferred to see its competitors break the news before publishing David Carr's terrifically Talmudic coverage of it.
When it comes to their owners, most publications find silence to be golden. The problem is not so much with the somewhat defensible hypocrisy of the Weekly Standard editors but with the larger picture it paints of the conservative movement. Whatdoes it mean for the right that its most generous patron openly sides not only with Communist totalitarians but also with the regime that these same conservatives have identified as the number-one security threat to the United States? The Wall Street Journal editorial page has acquitted itself honorably in this regard, publishing a blistering attack on the Murdochs by its deputy editorial features editor, Tunku Varadarajan. But where are the Buckleys and Bennetts of yesteryear? Has the fact that Murdoch shells out salaries for virtually the entire Podhoretz family managed to shut them up as apparently no other force in the universe can? Are the rabbis of redbaiting now stamping Communism kosher for Passover? Why is it so hard to find a good right-wing anti-Communist when you finally need one?
To put it all in a nutshell, come
the month of May Edward Said won't be traveling to Vienna; Susan
Sontag will be traveling to Jerusalem.
It's a backhanded
tribute to his effectiveness as a spokesman for the Palestinian cause
that the attacks on the Palestinian Said have, across the past couple
of years, reached new levels of envenomed absurdity.
latest uproar over Said concerns a trip to Lebanon he made last
summer, in the course of which he and his family took the opportunity
to travel to the recently evacuated "security zone" formerly occupied
by Israeli forces. First they visited the terrible Khiam prison and
torture center, then a deserted border post, abandoned by Israeli
troops and now crowded with festive Lebanese exuberantly throwing
stones at the heavily fortified border.
emulation of his son, Said pitched a stone and was photographed in
the act. You can scarcely blame the man for being stunned at the
consequences. Throw a rock at a border fence, and if you are a
Palestinian called Edward Said you'll be the object of sharply
hostile articles about the infamous stone toss in the New York
Times, face a campaign to be fired from your tenured job at
Columbia University and--this is the latest at time of writing--be
disinvited by the Freud Society and Museum in Vienna from a
longstanding engagement to deliver the annual Freud lecture there in
May. (To its credit, Columbia stands by him and says the calls for
his removal are preposterous and offensive.)
from being an articulate Palestinian, is Said's crime? As he himself
has written, while "I have always advocated resistance to Zionist
occupation, I have never argued for anything but peaceful coexistence
between us and the Jews of Israel once Israel's military repression
and dispossession of Palestinians has stopped." Perhaps that's the
problem. Said makes a reasoned and persuasive case for justice for
Palestinians. He doesn't say that the Jews should be driven into the
sea. These, not the fanatics, are the dangerous folks.
us now contemplate the role of Susan Sontag, another public
intellectual of large reputation. You can pretty much gauge a
writer's political sedateness and respectability in America by the
kind of awards they reap, and it is not unfair to say that the
literary and indeed grant-distributing establishment deems Sontag
safe. Aside from the 2000 National Book Award for her latest novel,
In America, she received in 1990 the liberal imprimatur of a
five-year (and richly endowed) "genius" fellowship from the MacArthur
Foundation, which once contemplated giving just such a fellowship to
Said but retreated after furious protests from one influential Jewish
board member, Saul Bellow.
Now Sontag has been named the
Jerusalem Prize laureate for 2001, twentieth recipient of the
biennial award since its inauguration in 1963. The award, worth
$5,000, along with a scroll issued by the mayor of Jerusalem, is
proclaimedly given to writers whose works reflect the freedom of the
individual in society.
Sontag was selected by a
three-member panel of judges, comprising the Labor Party's Shimon
Peres (now Ariel Sharon's foreign minister) and two Hebrew University
professors, Lena Shiloni and Shimon Sandbank. Peres approvingly cited
Sontag's description of herself: "First she's Jewish, then she's a
writer, then she's American. She lives Israel with emotion and the
world with obligation." When notified of her latest accolade,
Sontag's response was, "I trust you have some idea of how honored and
moved, deeply moved, I am to have been awarded this year's Jerusalem
Prize." Sontag is now scheduled to go to Jerusalem for the May 9
Why dwell on the mostly tarnished currency
of international literary backslapping? I do so to make a couple of
points concerning double standards. American intellectuals can be
nobly strident in protesting the travails of East Timorese, Rwandans,
Central American peasants, Chechens and other beleaguered groups. But
for almost all of them the Palestinians and their troubles have
always been invisible.
It can scarcely be said that Sontag
is a notably political writer. But there was an issue of the 1990s on
which she did raise her voice. Along with her son, David Rieff,
Sontag became a passionate advocate of NATO intervention against
Yugoslavia, or, if you prefer, Serbia. On May 2, 1999, Sontag wrote
an essay in the New York Times Magazine, "Why Are We in
Kosovo?" urgently justifying NATO's intervention. "What if the French
Government began slaughtering large numbers of Corsicans and driving
the rest out of Corsica...or the Italian Government began emptying
out Sicily or Sardinia, creating a million
Sontag cannot be entirely unaware of a
country at the eastern end of the Mediterranean from which at least
750,000 residents have been expelled. She has always been
appreciative of irony. Does she see no irony in the fact that she,
assiduous critic of Slobodan Milosevic, is now planning to travel to
get a prize in Israel, currently led by a man, Ariel Sharon, whose
credentials as a war criminal are robust? Does Sontag see no irony in
getting a prize premised on the recipient's sensitivity to issues of
human freedom, in a society where the freedom of Palestinians is
unrelentingly suppressed? Imagine what bitter words she would have
been ready to hurl at a writer voyaging to the Serb portion of
Sarajevo to receive money and a fulsome scroll from Radovan Karadzic
or Milosevic, praising her commitment to freedom of the
Yet here she is, packing her bags to travel to
a city over which Sharon declares Israel's absolute and eternal
control--in violation of international law--and whose latest turmoils
he personally provoked by insisting on traveling under the protection
of a thousand soldiers to provoke Palestinians in their holy
When the South African writer Nadine Gordimer was
offered the Jerusalem Prize a number of years ago, she declined,
saying she did not care to travel from one apartheid society to
another. But to take that kind of position in the United States would
be a risky course for a prudent intellectual. Said knows he lives in
a glass house, yet he had the admirable effrontery to throw his
In the clash over tax cuts and social programs, much of what progressives need to do is defensive. But it would be a mistake not to float new ideas, too.
In the words of
the old folk song, "When will they ever learn?" David Horowitz,
former radical who these days is in the business of promoting (1)
neoconservatism and (2) David Horowitz (although not necessarily in
that order), has done it again. A few weeks ago he placed an ad in
the Brown Daily Herald denouncing--in deliberately offensive
terms--the idea that black descendants of slaves should be paid
reparations. Instead of ignoring, answering or ridiculing the ad,
Brown student activists denounced the Herald and trashed most
of its 4,000-copy press run, thus giving the demagogic provocateur
undeserved high ground.
As our own Katha Pollitt put it in
a cyberconversation, "Publish it and then attack it, mock it, parody
it, I say. Use it as a springboard for a teach-in, discuss it in
classes.... Shutting down a discussion doesn't change anyone's mind
or introduce any new information--and the views Horowitz expresses
are held in whole or in part by many people. What message do they get
if a paper won't print them? That the real truth is too threatening
to publish. It's always better to promote speech than to silence
people. Force those views out into the open and have a debate. That's
how minds are changed."
As far as advertising policy goes,
we believe that it is the prerogative of the Herald and the
other college papers targeted by Horowitz to accept or to turn down
ads they consider repellent, at their discretion. At The
Nation, however, we start with the presumption that we will
accept advertising even if the views exposed are repugnant to some of
the editors. In fact, we go out of our way to refrain from making a
judgment based on our opinions of the views expressed in an
We are comfortable with this
policy--although it occasionally discomforts some of our
subscribers--because our editors are free to attack the views of our
advertisers and often do; because for the reasons Katha lists above,
we have confidence that our readers are more than capable of
determining for themselves what views to accept or reject; and
because we accept advertising not to further the views of The
Nation but to help pay the costs of publishing.
recognize that other papers can reasonably come to a different
conclusion about which ads go over the line, but in this case our
view is that if a right-wing propagandist like Horowitz is foolish
enough to put his money at our disposal, then it would be foolish for
us to turn it down.
A glance back to 1964 shows that predictions are always wrong and always political--and that the left's possibilities may be greater than they seem.
The arrest in France of James Kopp, the accused assassin of Buffalo obstetrician Barnett Slepian, could not have come at a more awkward time for the Bush Administration. Bush inaugurates himself by blocking aid to international family planning agencies and by nominating antiabortion fanatics to run the Justice Department. Then fugitive Kopp surfaces to remind the American public of where
these bottom-line commitments lead.
In 1994 Bill Clinton's Justice Department initiated a grand jury inquiry into
abortion-clinic violence. But FBI agents grumbled that Justice was
wasting their time, and the grand jury folded its tent in January of
1996 after finding no evidence of a national conspiracy. Five years
later, it's clear that Kopp--accused in three nonfatal shootings in
Canada and the United States in addition to the murder of Dr.
Slepian--had a lot of help, the kind of help for which "conspiracy"
is the operative legal term.
So far, investigators have
arrested two antiabortion felons in Brooklyn--Dennis Malvasi,
convicted of a 1987 clinic bombing in Manhattan, and Loretta Marra,
who blockaded clinics with Kopp. They sent Kopp money and stayed in
touch with him through a Yahoo drop box. The circle is almost
certainly wider--and transnational. For the past year Kopp lived in
Ireland, bunking in hostels and mingling with the fundamentalist
breakaway Catholic sect founded by excommunicated Archbishop Marcel
Lefebvre. Kopp managed to acquire at least two separate Irish
identities and passports for himself and a blank Irish passport and
birth certificates for his New York friends, and someone in Ireland
vouched for his references for an employment agency--all of which
makes it obvious that his was not a solo act. Ireland's right-to-life
leaders deny any connection to the assassin, and it's entirely
possible that his support network was American. In the last
half-decade US antiabortion campaigners have moved on Ireland in a
big way, introducing a militancy previously unknown
Speculation necessarily swirls around the followers
of the Rev. Patrick Mahoney of the Washington-based Christian Defense
Coalition. In March 1999 Mahoney led a brigade of forty Americans to
Dublin, where they occupied the offices of the Irish Family Planning
Association and taught their Irish counterparts all-American
blockade-and-intimidation techniques. Indeed, only a day before
Kopp's arrest, Mahoney was slapped with an Irish court injunction
prohibiting him from further harassing the IFPA. Mahoney had tolerant
words in 1997 after Slepian's shooting, and responded to Kopp's
arrest by warning the Bush Administration not to "harass and
intimidate the pro-life movement."
It can't escape notice
that the Kopp conspiracy began to unravel just as the Court of
Appeals for the Ninth Circuit overturned a jury verdict and
injunction on the Nuremberg Files website, which displays
photos of abortion providers and a list with a strike through the
names of assassinated physicians. On March 28 the Ninth Circuit
unanimously found, in the words of presiding Judge Alex Kozinski,
that if the website's rhetoric "merely encouraged unrelated
terrorists," it is protected by the First Amendment.
Michelman of NARAL called the ruling "a major setback for a woman's
right to choice," and along with Planned Parenthood vowed to pursue
the case to the Supreme Court. To me, Kopp's overdue arrest suggests
a different conclusion. There can be no doubt that the Nuremberg
Files website contributed to a climate of fear--that the website
is the theory and James Kopp's rifle is the practice. Yet the
emerging facts of Kopp's flight make it clear that keeping The
Nuremberg Files off the Internet would not have saved Dr. Slepian
or brought the shooter to justice. The important thing is to
investigate real antichoice gangsterism, real shootings, real escape
routes. The important thing is to insist on the continuity between
Kopp and the "respectable" antiabortion agenda of the White House.
Bush and Ashcroft have been assiduously working to accomplish by
executive order what Kopp attempted with a gun: diminishing the
availability of abortion and thus undermining a civil right. This,
and the climate of fear generated by clinic violence, must be fought
with politics, not censorship. And the recent rise of police
surveillance aimed at antiglobalization protesters only makes more
clear the danger of prosecuting an inflammatory publication as if it
were the hand that smashed the windowpane or pulled the
Kopp's arrest is full of ironies. The most
antichoice Attorney General in US history is now stuck prosecuting an
antichoice assassin; an Administration wild about the death penalty
must forgo capital punishment to secure Kopp's extradition because
France opposes it. It would be a final, and tragic, irony if
prochoice advocates permit antiabortion thugs like Mahoney to play
the martyr--drawing attention away from the very violence they have
While most of the 1,500 people who traveled to Albany from all over New York
State last Tuesday endured freezing winds outside the legislature to tell
stories of families torn apart and chant s