Re: Comments On AuthorSkeptics’ Discussions With Professor "A" And Professor Powell

May 26, 2005

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Re: Comments On AuthorSkeptics’ Discussions With Professor "A" And Professor Powell.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear AuthorSkeptics:

I should like to make some comments about a small number of the many points discussed in your correspondence with Professors "A" and Powell.

1. It seems to me that there is nothing wrong in having research assistants find cases, articles, and books for professors to use in a substantive way when writing a piece. However, I believe the professor herself must read and analyze the materials pointed to by the assistant, and must herself do the ultimate writing related to those materials.

As for the creation of (crazed?) string cites, I suppose it is alright for assistants to put those together, although the professor should check them out to be sure each cite stands for the proposition it is claimed to stand for. (This is what Professor "A" called "verify[ing] the citations.") One would be amazed how often citations, at least in briefs, do not support what they are claimed to support.

2. I would think that, in many cases, probably most, an uncredited ghostwriter is not very culpable for the dishonesty perpetrated on the public, although he or she was of course part of the apparatus that produced the fraud. The reason for this view is the vast inequality of position that normally obtains. The ghostwriter, especially student assistants, needs the money, may lack other reasonably accessible or desirable employment opportunities, may need recommendations, etc. She pretty much has to do what she is told. As is almost always true, the person on top, the person with the authority and power, here the professor, is chargeable with the lion’s share of the blame. This is only the more true here because the professor is the one taking credit for what he did not do (which is, of course, a species of personal dishonesty).

One reads and is told, moreover, that there are situations in which this personal dishonesty is of monumental proportions, as when professors simply put their own names on manuscripts produced entirely by assistants. One may perhaps be forgiven for thinking that a professional field -- the academy -- and a society in which this happens and goes unpunished, as apparently is often the case, are a field and a society in trouble because regard for honesty has sunk so low.

There is another unfortunate aspect, too, relating to the use of ghostwriters, especially student assistants (and law clerks as well). It is the code of omerta, of silence and confidentiality, that appears to generally accompany the ghostwriting. As I gather you have found, former ghostwriters, reflecting the enforced norm, are reluctant to talk about what they did, and those who do talk about it find themselves neck deep in dung being flung at them (see, analogously, Edward Lazarus). The code of silence, which one is forced to absorb into one’s very pores, is a method of protecting the ghostwritee (if I may (again) coin that word) against public knowledge that it was not he, but an underling, who did the work. It is a method, that is, of defrauding readers and the public, as well as of obtaining the credit for what one did not in fact do. It is also a method of cheating history by denying it knowledge of the truth -- this is not to be overlooked (though it usually is overlooked).

3. I agree with Professor "A" that we should not "uncritical[ly] . . . accept the practice of judges." One would guess that, as he or she says, "the vast majority of the public doesn’t" "understand" the practice. (I take it that Professor "A" used the word "understand" in the sense of the public being aware of the practice, not in the sense of the public being aware of it but disagreeing with it. But this is no never mind for my agreement with "A.") Professor "A" also makes a most salient point in saying that ready acceptance of ghostwriting for judges also results in "lump[ing]" Posner "with the average clerk-writing judge," instead of giving credit to the judge who writes his or her own opinions.

From what I have occasionally heard, moreover, the situation may sometimes be even worse than generally thought. It is widely thought, and certainly, to use your word, "hope[d]," that (as you said) "it is actually the judge who is initially deciding the case." But one gathers that this is not always so. One has heard that there are lower court judges who tell clerks to decide a motion or case and to then write up the decision. One has even heard that these clerks may still be (young) law students, who therefore are in reality not even clerks, but interns. I rather imagine that if what one has heard is true, and were to be brought to the attention of the public, the reaction could be volcanic. After all, and without meaning any offense, it is hard to believe that most parties would want a 24 or 25 year old youngster, who is not even out of school yet, to be deciding matters of enormous personal importance to the parties.

I also think that the use of ghostwriters by judges should not be accepted on the ground that no fraud is involved, "as the practice seems very well accepted" by the cognoscenti. The problem here is that for the practice to become well accepted, fraud had to be perpetrated, i.e., ghostwriting had to be done, secretly, while the practice was not accepted and therefore could not be admitted, until finally so many judges were committing this fraud that it became widely accepted and no longer fraud. To put the matter crassly, the principle involved is that the way to obtain public acceptance of lying, cheating and stealing is for people to lie, cheat and steal until this is widely accepted as okay. (I gather that there are countries where this kind of thing prevails -- where graft, bribery, baksheesh, etc., and dishonesty, are so prevalent that they are accepted as being permissible, indeed expected, ways of acting.)

So the fact that "everyone is doing it" (as one might say) should not justify the use of ghostwriters by judges. Nor should a judge who does her own work not be regarded as a norm to be emulated just because so many judges do not do their own work. As a profession and a society we seem so often to be engaged in a race to the bottom rather than in a struggle to the top. It would be better for judges to try as much as they can to emulate the example set by Posner than to accept the current (is it permissible to say bottom dwelling?) practice.

Some last points on judges’ use of clerks. The Long Term View is a journal of public policy put out by our law school. Each issue deals with a single topic; the topics are usually not legal ones, but occasionally are legal ones. About ten years ago, in its Spring, 1995 issue, LTV devoted 109 pages to the subject of judges’ use of clerks. The issue was entitled Law Clerks: The Transformation of the Judiciary. There were original articles, reprinted articles and interviews by or with such prominent judges, writers and professors as Abner Mikva, Richard Posner, Patricia Wald, Kenneth Starr, Alex Kozinsky, Andrew Kleinfeld, Mary Ann Glendon, Nat Hentoff, Wade McCree and others. Ghostwriting was one of the subjects discussed. As a whole, the issue discussed the reasons why judges increased their reliance on clerks, the duties of clerks, their degree of influence, and so on. For all I know, the Spring 1995 issue may be the widest, and it certainly seems likely to be one of the widest, compendiums of discussions on the use of clerks, and you may wish to read what some of the authors had to say. The issue is, I believe, in the Harvard library holdings. Also, the issue used to be online, I think, and it will be reposted online at http://mslmedia/LTV/index.htm.

Also in connection with ghostwriting, let me say that I was apparently wrong to some extent in a previous statement to you about ghostwriting by law clerks in the 1950s and early 1960s. I said previously that the reason those of us in Michigan’s law class of 1963 were surprised to learn that a classmate who clerked for Chief Justice Warren had written the reapportionment decisions of June, 1964, was that such things weren’t done in those days, not that they were done but we didn’t know about it. Apparently there was some ghostwriting by clerks in those days that we did not know about. In a recent article in Legal Affairs which bitterly attacks Harry Blackmun, and which is entitled The Brains Behind Blackmun, the eminent Professor Garroway put it this way: "not until Justice Frank Murphy and Chief Justice Fred Vinson joined the court in the 1940s did clerks take the lead in writing opinions and sometimes determine a justice’s vote." Garroway also said that "[s]ome of the best-known opinions of such renowned former justices as Felix Frankfurter and John M. Harlan III were written entirely by their clerks." (Professor Garroway did not say which opinions of Frankfurter and Harlan were written by clerks. Neither did he say how he knows the rest of what he said. But if he made these statements of fact, one thinks they likely are well based and true.) So apparently there was some ghostwriting way back in the mid 20th century, but we Midwestern naifs were innocent of such knowledge.

Moreover, it must be noted that Garroway said clerks "sometimes determine[d] a justice’s vote." This sounds suspiciously like he is saying that "it [was not] actually the judge who is . . . deciding the case," or at least deciding a vote. If this was or is so, it bears on the previously discussed question of whether the situation may be worse than generally thought.

4. Professor "A" has said that you should deal with the ghostwriting problem "in a less judgmental, more constructive way, than the issue seems to have been framed." Here is a fuller text of what he or she said:

. . . I would suggest you deal with this in a less judgmental, more constructive way, than the issue seems to have been framed. It is at least clear that there’s uncertainty about the underlying "norm" and "practice." Rather than adjudicating past behavior in light of that past uncertainty, why don’t you develop a list of principles to which professors can pledge. That would seem a constructive and clarifying procedure, much more constructive than forcing people to out themselves on the basis of an uncertain, and insufficiently established, line of "appropriate behavior." That procedure would still permit the criticism of the extremes -- I take it everyone agrees re the behavior alleged about "Tree" and Tribe. But it would focus attention on setting a standard, rather than defending different lines.

With great respect, I tend to disagree a bit with some of what Professor "A" said. He or she did say that we can all agree about the impropriety of the conduct alleged to have been engaged in by "‘Tree’" and Tribe. So far so good. But I also think punishment is necessary, not merely the setting of standards for the future. Plagiarism and ghostwriting were and are clear, serious no-nos in my judgment, and people should not be let off the hook for these clear violations just because there are matters of less clarity, such as the compilation of string cites, or assistants presenting professors with memos describing what the assistants have found in their research. People who violate clear rules should be punished. Punishment of violations is the only way violations will be stopped. This is as true in the academic world as in the business or political worlds, a subject discussed in my long post about the Tribe matter. Punishment is the only way to stop the Enrons, Tycos, Arthur Andersens, Global Crossings, Johnsons, McNamaras, Nixons, Kissingers and Bushes of this world, and lack of punishment is a major reason why politicians who do evil by violating law are not stopped. Sad to say, people respond to fear and the possibility of punishment far more than to love and sweet reason. Exposure of bad deeds cannot and should not usually lead to nothing but a form of Truth And Reconciliation Commission, if we expect bad deeds to stop. This is no less true for the powerful and influential than for the powerless and non-influential. In fact, maybe it is far more true for the former because of their very power and influence, and the oft accompanying hubris which leads them to think they can get away with things.

5. My last point involves complicity. Professor Powell raises some incredibly salient points about this subject, ranging from bringing in the parallel of Iraq to the fact that most people have other matters to devote their time to. Yet, on the other hand, you seem to me right in thinking that persons, at least collectively through their institutions if not individually, should stand up for honest conduct or be deemed to be to some extent complicit in the race to the bottom.

You know, complicity is not a subject which this country ever seems to want to face. (Are we any different in this regard than the once collaborationist France, a country now despised by right wingers who undoubtedly do not wish to face American complicity in anything, just as France would not face its collaborationist past of World War II.) The American unwillingness to consider national and personal complicity exists even though we are a democracy where people have the right to speak and vote, therefore allegedly can change things by speaking and voting, and thus might fairly be considered complicit for not speaking out or taking action. (Of course, given the nature of our politics, where money and influence seems to be everything, and decency nothing, or at least relatively little, perhaps people could justifiably feel they have no voice notwithstanding the rights to speak and vote.) To this day, lots of southerners deny, or in effect try to deny, the personal complicity of ordinary everyday southerners in slavery, and sometimes even in keeping down blacks for 100 years or more after the Civil War. People do not accept personal blame for Viet Nam. Nor for Iraq. And so forth. This is somewhat paradoxical one might think, since, even though dissenters in Nazi Germany were liable to find themselves strung up by piano wire or hung from meat hooks, few of us would absolve everyday Germans of the 1930s and 1940s of all responsibility for what their country did -- and the post war generations of Germans themselves have apparently felt that their parents and grandparents, and their nation itself, were complicitous. There are also Americans who think -- and certainly China thinks -- that it is wrong of the Japanese to fail to admit responsibility for what Japan did in World War II, and to thereby implicitly deny, or to at least ignore, all personal and national complicity of that generation of Japanese.

The question of complicity is a large one. Not the least of what it involves is the comment by Edmund Burke that the only thing necessary for evil to triumph is for good men to do nothing. In the instant situation, one would judge, at least a significant number of academics should do something. They should speak out about the practice of claiming someone else’s work as one’s own, and about where one draws whatever lines have to be drawn in this regard. This is true not just in law, but also in sciences and other fields where there are professors who apparently have been in the habit of claiming others’ work as their own.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Re: Followup

---- Original Message -----

From: "hgasst"
To:
Sent: Monday, May 23, 2005 3:41 PM
Subject: followup


I have finally read your lengthy blog entry of 4/22/05, about the plagiarism charges at the Law School and how they were handled. For some of the reasons that you stated, I am uncomfortable with the disposition of these charges.

In the past months I have given a great deal of thought to the operation of Harvard, a university with which I have been happily and proudly associated for nearly 45 years. I used to feel comfortable with the 'hush hush' ways in which decisions are made and communicated at the
University--like a benign dictatorship (and I dont mean to push the analogy), when it works well, this can make life easy for everyone concerned.

But after recent events, I feel differently. When scholars at Harvard (and other places) study institutions, they almost always call for greater transparency. I now believe that greater transparency is needed at Harvard-- particularly with respect to the operation of the very secretive Corporation, and how the ad hoc panels to which you refer are chosen and how they 'report out.' While I feel that your blog often overstates matters, many of the points that you make are important and deserve wide circulation among those who care about Harvard (as I very much do) and other influential institutions of higher education.

You have my permission to cite this comment, so long as you include the
comment in its entirety.

With best wishes, HG

Howard Gardner
Hobbs Professor of Education and Cognition
Harvard Graduate School of Education
14 Appian Way
Larsen Hall 201
Cambridge, MA 02138

Voice: 617-496-4929
Fax: 617-496-4855
www.howardgardner.com
e-mail: howard@pz.harvard.edu

NOTE REGARDING SPAM FILTER: If you reply to this communication, please be
sure to include the name "Howard Gardner" in the text of your response.
Otherwise, the spam filter may delete your message.

Re: Tony D’Amato’s Question

May 18, 2005

Re: Tony D’Amato’s Question.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.blogspot.com

Dear Colleagues:

Professor D’Amato has asked the question contained in his appended email. I shall try to respond next week, when I return from a brief trip.

Sincerely yours,

Lawrence R. Velvel


From: Damato, Anthony A
Date: Wednesday, May 18, 2005 12:10 AM
To: Dean Lawrence R. Velvel
Subject: Re: Maureen Dowd Beat Me To It


I'd be interested in your answer to the following question. Given all the things you say in the "Maureen Dowd" blog, what would you do if you were philosopher-king of the United States and could make any laws, order anyone to do anything, take property from A and give it to B, institute criminal penalties for anything you wish, tax whatever persons or groups you wish to tax, etc.? What would you actually do if you had all the power in the world?

Tony D'Amato
http://anthonydamato.law.northwestern.edu/

Re: Maureen Dowd Beat Me To It, But I Will Now Catch Up

May 17, 2005

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Re: Maureen Dowd Beat Me To It, But I Will Now Catch Up With Regard To The American Dream.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

On May 3rd The New York Times carried an article entitled Ugly Children May Get Parental Short Shrift. (Page D7.) The article was, frankly, horrifying. It said that Canadian researchers have “found that physical attractiveness [of small children] makes a big difference” in how carefully parents take care of them. The research was based on observations in a supermarket: observations of whether kids were belted into grocery cart seats, were allowed to (dangerously) stand up in the carts, were allowed to wander away, even to wander out of sight. The researchers themselves ranked the children’s attractiveness (using a ten point scale).

Professors of psychology who were asked about the results by The Times sometimes thought there could be problems with claims of evolutionary reasons for the results it found, but none commented, or at least The Times did not carry any comments, to the effect that any methodological problem was raised by the fact that the researchers themselves ranked the children for attractiveness, an obviously subjective thing. One suspects this might conceivably be because peoples' looks are constantly judged. Moreover, “everyone knows” that good looking people are treated better than ones who aren’t good looking. Accordingly, a ranking by attractiveness, and findings based on it -- though horrifying -- seemed reasonable. What the researchers found, horrifying as it may be, comports with our experience.

And make no mistake. What they found is horrifying, notwithstanding what everyone knows. For whatever happens when people are older, we assume that parents will and should take care of their young children regardless of how they look. The idea that parents might let their little kids wander out of sight in a supermarket, or in a busy Barnes & Noble, not to mention on a street or in a stadium, makes one shudder in this day and age.

This blogger was going to write about the matter, because it unhappily fits so well with certain other things we have come to realize in recent years. But Maureen Dowd beat me to it. She wrote a column about the matter on May 4th, the very day after the article appeared. Saying that “the world can be harsh. Surface matters more and more,” and citing various sources, she said some things that have come to be increasingly understood. Good looking people make more money. Fat women make less money than ones who aren’t fat. Tall men do better in business and politics. Good looking professors get better evaluations. All of this is by and large, of course. But, by and large, it is true if you ask me.

(Two days after Dowd’s column, a letter to the editor in The Times asked, “So how long will it take before our social discourse stops berating people who seek to improve their looks as being shallow and frivolous?” The question is startling because we have all been taught this discourse, and so regard the search for looks as in fact being “shallow and frivolous.” But given society’s hypocrisies, the question, while startling, is not “shallow and frivolous.” And another letter to the editor did ask, “How were the beauty and ugliness of the children determined?” -- the question not brought up in The Times article (or by Dowd). (Letters to the editor in The Times, I note, are often quite salient.))

Just over a week after Dowd’s piece, on May 13th, The Wall Street Journal carried a front page, left-hand column article on a subject that one might think is a wholly different topic. The article was captioned As Rich-Poor Gap Widens in the U.S., Class Mobility Stalls. Citing work done in the last ten years, the article said that today “Americans are no more or less likely to rise above, or fall below, their parents’ economic class than they were 35 years ago.” This is counter, thought The Journal’s writer, to the long-espoused, once true “myth” of American mobility, to “[t]he notion that the U.S[.] is a special place where any child can grow up to be president, a meritocracy where smarts and ambition matter more than parenthood and class.” The myth of high mobility is one “revel[ed]” in by George Bush, who is himself a “riches to riches story” (right -- as in effect posited here before, nobody born poor who is as inept as this (highly dishonest) guy, and who was as big a drunk as he was, could ever become president of a major company, let alone the country). The myth, said The Journal, is also the reason why Americans tolerate widening inequalities, and elect politicians who do not wish to restrain them. (For the word “politicians,” I think we must read Republicans, which is really something since we are discussing an article in The Journal.) And, with American mobility stuck in place for decades, and with more and more experts now accepting that this is in fact the way it is, it now is also the case that there is more social mobility in Europe and Canada than in the U.S. As one Canadian writer on the subject said, “‘The U.S. and Britain appear to stand out as the least mobile societies among the rich countries studied.’” (“‘Stand out’”? Did he mean “stand out” in a literal way?)

The Journal subsequently went on to present various hypotheses about why mobility in America is stuck in place. Race, education, genetics, better health born of money, personality, are all possible reasons, people suppose. Yet, when all is said and done, when the tumult and the shouting die and the captains and the kings depart (as Kipling said), it is “[n]onetheless” true that “Americans continue to cherish their self-image as a unique land where past and parentage puts no limits on opportunity, as they have for centuries.”

Fortuitously, after writing the foregoing paragraph, I picked up The New York Times of Sunday, May 15, two days after The Journal article. Lo and behold: In two sixty-percent-of-the-page left hand columns on page one, and continuing for no less than three full pages on the inside, The Times announced, and ran the first installment of, a series of articles carrying the headline of Class in America: Shadowy Lines That Still Divide. The Times said that “A team of reporters spent more than a year exploring ways that class -- defined as a combination of income, education, wealth and occupation -- influences destiny in a society that likes to think of itself as a land of unbounded opportunity.” (Emphasis added.) (Did The Journal get wind of this series when it was still forthcoming, and race into print with an article that came ahead of it? -- sort of like Time and Newsweek have sometimes had simultaneous covers showing the same person when this would not ordinarily be thought likely?)

Being far longer than The Journal’s piece of May 13th, The Times’ initial, May 15th, instalment sometimes made the same points at greater length. “Mobility,” said The Times, "is the promise that lies at the heart of the American dream. It is supposed to take the sting out of the widening gulf between the have-mores and the have-nots.” But in the last decade or so -- when mobility has become the subject of serious academic study (by, among others, a Michigan professor with the apt name of Solon, a word which, among other meanings, means a wise person, a sage) -- it has come to be recognized that mobility is less than it was wrongly pronounced to be -- ex cathedra, one gathers -- by a University of Chicago Nobel laureate named Gary Becker in 1987. Becker apparently said that mobility in America was very high, so that little advantage was passed down the generations. (Except that it relies on propaganda rather than logic, this might otherwise serve as an example of the U of C style that a wag once called the triumph of logic over fact.) The aptly named Solon told The Times that in the past “‘people would say, ‘Don’t worry about income inequality. The offspring of the poor have chances as good as the chances of the offspring of the rich.’ Well, that’ s not true. It’s not respectable in scholarly circles anymore to make that argument.’”

What blows my mind is that it ever was respectable in scholarly circles to make such an argument, to assert such a preposterous triumph of propaganda over fact. Having lived through the time when the argument apparently prevailed, I can say that ultimately it came to seem as preposterous to me then as it does now, a point whose undergirding is developed to some extent later in this posting.

There is one very important way in which The Times went beyond The Journal. Unlike the latter, which said only that mobility has not increased, The Times said it may even have decreased in recent decades, although it will be a long time before this will be known with certainty. There is also, The Times said, “far less of it than economists once thought and less than most people believe.” (Emphasis added.) Mobility, it added -- very correctly -- is “a dimension of the American experience that tends to go unexamined, if acknowledged at all.” (Emphasis added.)

When the relevant questions are examined, the news is not so good. In today’s supposedly meritocratic system, “Parents with money, education and connections cultivate in their children the habits that the meritocracy rewards” and the children’s “success is [then] seen [preposterously] as earned.” Some of these habits of success often, maybe most often, are ones that are obnoxious, like various kinds of dishonest crapola. (Contrary working class traits are the subject of a fine book by Alfred Lubrano, entitled Limbo: Blue-Collar Roots, White-Collar Dreams. If you want to learn what Lubrano has to say, either read his book or acquire a tape of the recent one hour long televised book review interview with Lubrano on MSL’s Books of Our Time.)

In the ensuing “contest among social groups . . . the affluent and educated are winning in a rout.” In income inequality, for example, between 1979 and 2001, “[t]he after-tax income of the top 1 percent of American households jumped 139 percent, to more than $700,000,” while “[t]he income of the middle fifth rose by just 17 percent, to $43,700, and the income of the poorest fifth rose only 9 percent.” (Emphases added.) In part, one gathers, this has been assuaged by the fact that, as one interviewee said, “‘The level of material comfort in this country is numbing.’” “‘You can make a case that the upper half lives as well as the upper 5 percent did 50 years ago.’” (Indeed, if you wish to read or hear that case, read Greg Easterbrook’s The Progress Paradox, or watch a tape of the recent televised one hour book review interview with Easterbrook on MSL’s Books of Our Time.) Although “The slicing of society’s pie is more unequal than it used to be . . . most Americans have a bigger piece than they or their parents once did” and “[t]hey appear to accept the trade-offs.”

Also assuaging the situation is the fact that some people have gotten filthy rich -- have become billionaires (of which we now have hundreds, believe it or not) -- and “These success stories reinforce perceptions of mobility, as does cultural mythmaking in the form of [utter trash] television programs like American Idol and The Apprentice.” But, as Christopher Jencks of Harvard is quoted as saying, though “‘turbulence creates the opportunity for people to get rich,’” this “‘isn’t necessarily a big influence on the 99 percent of the people who are not entrepreneurs.’”

To the extent that one seeks causes or reasons that, with some assurance, can be assigned for the standstill or decline in mobility, it would seem that at least one will qualify. As said by one “Berkeley economist and mobility researcher,” “‘There is no reason to doubt the old saw that the most important decision you make is choosing your parents . . . . While it’s always been important, it’s probably a little more important now.’” “‘Being born in the elite in the U.S.,’” this same professor said, “‘gives you a constellation of privileges that very few people in the world have ever experienced . . . . Being born poor in the U.S. gives you disadvantages unlike anything in Western Europe and Japan and Canada.’” (So, as The Journal pointed out, and The Times did too, we naturally are behind other countries today when it comes to mobility.)

Notwithstanding that our views on social mobility -- on the American Dream, I would say -- are significantly myth, people continue to cling to them. Apparently more than ever, people think hard work is the key to doing well, and there are even those who naively talk of “‘the end of class’” though we live in “‘a time of booming inequality’” (just as Fukuyama and others absurdly posited the end of history). For “Faith in mobility, after all, has been consciously woven into the national self-image.” (True.) “The idea of fixed class positions . . . rubs many people the wrong way. Americans have never been comfortable with the notion of a pecking order based on anything other than talent and hard work.” (Emphasis added.)

Yet, we are playing with fire here. As said by the President of Amherst (the aptly named Anthony W. Marx? Why do I doubt the aptness?), “‘If economic mobility continues to shut down, not only will we be losing the talent and leadership we need, but we will face a risk of a society of alienation and unhappiness. Even the most privileged among us will suffer the consequences of people not believing in the American dream.”’

On the same day as The Times’ initial article on class, May 15th, The Boston Globe published a piece in its oddly named Boston Works section entitled The Art of the interview, U.S. Style, and subcaptioned Brandeis helps foreign newcomers overcome cultural differences, find jobs. Titled in ways that perhaps would not immediately cause one to think it bears any relation to what The Journal or Dowd or The Times wrote, it actually is deeply related. A Brandeis professor and others are teaching immigrants -- from Russia, from Taiwan, from France, from Nigeria, etc., -- how to conduct themselves at job interviews in America. This training is crucial because, as immigrants make clear in The Globe, cultural mores are vastly different from country to country. In America there may be some small talk at an interview, but not in Taiwan, where to show respect you sit still, the interviewer asks questions, and the interviewee answers them. Small talk is generally not desirable in France either. There the interviewers, one gathers, do not care about you personally at the interview, and do not smile, and the interviewee later sends a handwritten, not a typed or emailed, thank you note, so that your handwriting can be used to assess your personality. In Nigeria, where mentors and contacts are said to have a major role, you must not make eye contact lest you be thought arrogant, must not speak unless spoken to, and must not engage in small talk. But to learn how to interview in America, said an employment specialist who helps aliens find jobs, people have to ‘“learn small talk, how to make eye contact.”’ They must learn ‘“how to be positive,’” and “how to show self confidence to sell themselves. They have to remember to speak enthusiastically, with confidence, and smile.”’

Much of this resonated with this writer, but what resonated the most, since I am myself the son of Russian immigrants, was one of the things that had to be learned by those particular immigrants. The Brandeis professor “told them to make direct eye contact, deliver a vigorous hand shake, [and] make small talk.” But shockingly, while he told them to be honest, he also had to tell them “not [to be] too honest.” “[O]ne Russian client,” the article continued, “was having so much difficulty that he confided to [the professor] that he felt like he was ‘committing a crime against my own personality.’” ‘“In Russia, honesty is an important part of the cultural ritual for interviewing,”’ the professor told the Globe ‘“But in the US, that can get you into trouble, especially with small talk like: ‘Any trouble finding the office today?’ ‘Yes.’ Or if you’d ask a recent Russian refugee, ‘So how do you like Boston?’ The answer might be: I really don’t like it much.’ ”

“At a mock interview, for example, the professor asked a . . . client to discuss his weaknesses. The trainee’s response: “I don’t like to work with other people.”’

“Talk about a culture clash.”

That Russian immigrants must learn to be dishonest in interviews is pretty shocking, isn’t it? In Russia, the land of pathologically lying Communists and of governmental mass killers, the land of Stalin, of Brezhnev, of Putin, the land of people who (like our Presidents) don’t even begin to know the meaning of truth, honesty is said to be de rigeur in interviews. In America, the new land of hope and glory, the land of freedom and opportunity, one must lie in interviews. Wow!

* * * * *

One must say that, as awful or as ironic as are lots of the stories and ideas in the articles, one is pleased to see the subject of social mobility finally become a subject of public discussion. The discussion is long overdue, several decades overdue. One of the reasons it is overdue is that for many years, in the absence of discussion, something of a fraud was perpetrated on people. And knowing no better, and hearing nothing to the contrary, many believed the fraud. By the millions people still believe it and want to believe it. As The Journal and Times’ articles make clear, people are unwilling to give up the myth, as far from truth as the myth often is. The myth is as akin to the great lies, like “The check is in the mail” and “I’m from the government and I’m here to help you.”

The myth in question is known as The American Dream. For reasons that I have speculated about in the opening paragraph of the Preface to the first volume of a quartet of books collectively entitled Thine Alabaster Cities Gleam, when those of us who are now in our 60s were growing up in the 1950s, “the American Dream was in full flower,” “was in the [very] air.” And it taught just about what the Wall Street Journal said it taught: that America “is a special place where any child can grow up to be president, a meritocracy where smarts and ambition matter more than parenthood and class,” where brains and hard work could take one far in any field. What was drilled into us was that in America all things are possible for anyone through the combination of smarts and unremitting work.

The quartet I wrote is in major part devoted to debunking this foolishness. But one cannot say here, one cannot even summarize here, what it took 1,200 pages to illustrate (900 of which are already in print). And looking back from a vantage of 45 to 55 years give or take, it is hard to understand how, it is hard to believe that, anyone ever swallowed such bovine defecation. One had only to look around to see its error and hypocrisy. One had but to look around to see that there was no American Dream of major success through talent and hard work for blacks, with but few exceptions. But people did not interpose this point in contravention to the American Dream. One had but to look around to see that with few exceptions there would be no American Dream for any woman who wished to be anything but a housewife. But people did not interpose this point either in contravention to the American Dream. One had but to open one’s eyes to see that only recently had things begun to open up for most Catholics. But people did not interpose this point. One had only to be sensate to know that Jews were excluded from a host of avenues leading to the American Dream. But people did not interpose this point. All of this begins to sound like Pastor Niemoller, does it not? But like what he said, it is true.

With few or nobody interposing these rather obvious points, the propaganda of the American Dream stood unopposed and triumphant, just like the propaganda fiction that on the world stage we were always and inevitably the good guys, acting for freedom, democracy and a better world, not for oil or economic or political power or similar less honorable reasons. But ultimately, for some of us, the truth began to sink in. As said, I cannot reproduce or even summarize 1,200 pages which illustrate it, but a small number of points can be made:

To wit: it turned out that smarts and hard work were not necessarily what counted, often were not what counted at all. If you were black, step back. If you were female, fuggedaboudit. If you were short, your chances often were the same height. If you were not good looking, your chances probably weren’t so hot looking either. If you were fat, your chances likely weren’t, except in the sarcastic sense. If you were honest -- well, just go home. If you were modest, your career almost surely would be too. If you were not celebrified, life was a lot tougher. If you cared about others instead of being purely selfish, well, you could bet most others didn’t give a tinker's damn about you. To put this stuff in reverse, in a way discussed or hinted at by the Canadian researchers, Dowd and the newspaper articles, success was the plaything of the good looking, the tall, the thin. It went to the dishonest, the pushy and immodest, the extremely selfish, the celebrified. It went to the white and WASPY.

Were there inroads on this over the years? Of course, there were, though other aspects, like the need for celebrification grew worse, and though the inroads took decades to accomplish. Women began catching a better break. So did blacks, though not all of them. Jews advanced in lots of fields. Catholics too, and they even became presidential nominees and, once, a President. Poor boys like Johnson, Nixon and Clinton could become President -- at least if they were major league liars and pushy beyond human comprehension. (And thank God George W. Bush has shown that it is still possible for inept, ex-drunk WASPS with Hope-Diamond-quality backgrounds to reach the top in every endeavor from Skull and Bones, to corporate presidencies, to the American presidency.)

But inroads, however great, are only inroads. And as the recent articles and apparently about a decade or more of research now show, the American Dream is still outside the reach of many, who are stuck in whatever class they started in -- who chose their parents unwisely, as so many of us did a long time ago. It is entirely obvious that, if we are to improve the truthfulness of the American Dream, so that the dream that so many people are psychologically desperate to believe in is to become less of a fraud, we will have to focus on the fact that today it still is extensively fraudulent, and will have to pursue the steps needed to change this. The recent articles can be no more than a beginning of public consideration of the matter, though one’s cynical nature, the current hegemony of the wacked out right wing, and the short attention span of the media -- the attention deficit disorder of the media -- cause one to worry that the articles will be the end of public consideration of the matter instead of the beginning of it.*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Re: Torture Whitewash

----- Original Message -----

From: hoybean@comcast.net
To: Dean Lawrence R. Velvel
Sent: Friday, May 13, 2005 3:54 PM
Subject: Re: Torture Whitewash," by Eugene Robinson of The Washington Post

Dear Larry:

I heard a discussion on talk radio the other day that criticized so-called liberals for calling prisoner abuse "torture." The thesis was that a few exceptions carried out by some misguided underlinks hardly rises to the level of torture. Of course, the overall mantra was that things happen in war and that critics of Iraqigate fringe on being traitors. Talk radio is consistent in its extreme praise of everything being done by the current administration, no matter how illogical, hypocritical and/or stupid. My take is consistent with Eugene Robinson in that I believe that history will not treat this President and this Congress kindly. But alas, who ever looks at the long run in this country? If we did, we wouldn't build highways that are obsolete the minute they are finished. We wouldn't build undersized subway systems. And surely, we would not burden our children with an ! increasing national debt and broken medical system.

Harvey


-------------- Original message --------------

May 13, 2005

Re: "Torture Whitewash," by Eugene Robinson of The Washington Post
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

The marvelous article by Eugene Robinson appended below appeared in The National Weekly Edition of The Washington Post for May 9-15, at p. 26. Whether it also appeared in the daily or Sunday Post is something I don’t know.

Sincerely yours,

Lawrence R. Velvel


The Washington Post
May 3, 2005 Tuesday Final Edition
SECTION: Editorial; A21LENGTH: 765 words

HEADLINE: Torture Whitewash BYLINE: Eugene Robinson

BODY:Twenty years from now, how will we remember this "global war on terrorism''? Assuming it's over by then -- assuming we haven't escalated a fight against al Qaeda into an all-out clash of civilizations -- will we look back on the GWOT, as Washington bureaucrats call it, and feel pride in the nation's resolve and sacrifice? Or will history's verdict be tempered by shame?

The answer will depend on how this Congress comes to terms with the documented mistreatment of prisoners in Afghanistan, Guantanamo, Iraq and who knows where else in the secret archipelago of U.S. detention.

The Bush administration and the Pentagon are whitewashing the whole thing. Congress still has the c! hance to uphold this nation's ideals and values, and some Senate Republicans (Lindsey Graham, John McCain, John Warner) vow to seek accountability. Given the inaction so far, though, I'm not holding my breath -- unlike the prisoners who were apparently tortured by "waterboarding," an interrogation technique in which the subject is strapped down and held underwater until he feels himself at the point of drowning.

It was a year ago when the first snapshots emerged from Abu Ghraib -- the pyramids of naked men; the vicious dogs lunging at naked men; and Lynndie England with her leash, leading a naked man like an animal. The one I can't get out of my mind is the hooded prisoner with wires attached to his genitals, fearing electrocution but seeming almost resigned to it, arms outstretched and head slightly inclined in a pose suggesting the Passion. It's something out of Hieronymus Bosch, a fantasy of Hell from the late Middle Ages.

A year later, only the low-ranki! ng grunts who grinned and gave thumbs-ups while committing these sadis tic acts have been made to answer. Only one ranking officer -- a reservist, a woman, Brig. Gen. Janis Karpinski -- has been sanctioned. The White House and Pentagon officials who opened the door to these abuses, and the careerist Army brass who oversaw the brutality, sit comfortably in their offices, talking disingenuously of "rogue" privates and sergeants. Physicians for Human Rights has just issued a report finding that U.S. authorities carried out "an ongoing regime of psychological torture of detainees" in Afghanistan, Guantanamo and Iraq.

The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States has signed, bans the inflicting of severe "physical or mental" pain to obtain information or a confession. There's no way that the infliction of physical agony, prolonged sleep and sensory deprivation, confinement in painful positions for hours on end, sexual humiliation, threats with snarling dogs and ! other documented U.S. abuses fall short of the definition.

Some prisoners were "rendered" to cooperating countries where old-fashioned fingernail-pulling is a routine investigative technique. Others have simply "disappeared," as if the U.S. government were some Latin American junta whose generals wear gold-braided epaulets as big as vultures. Most prisoners have been given neither adequate military nor civilian rights. Many don't know why they were arrested or what charges they face. It may be that these are all terrible people who wish to harm the United States -- we have no way of knowing, because the supposed evidence is secret. But even if they are, this mistreatment is wrong. If the price we pay for complete safety is complete abandonment of our ideals, the price is too high.

How can President Bush preach to the world about democracy, about transparency, about the rule of law, and at the same time disregard national and international law at will? Wh! at message can Vladimir Putin be hearing? Or the dictators in Beijing? Or the mullahs in Tehran?

The thing is, history tends to be relentless in pursuit of the truth -- and its judgments tend to be harsh. World War II may have forged the Greatest Generation, but the internment of Japanese Americans in concentration camps will never be excused.

History, I predict, will not be kind to government lawyers who invented ways to interpret statutes against torture so that they supposedly permitted the abuses they were designed to prohibit. It will not be kind to medical doctors who attended interrogation sessions that clearly crossed the line -- doctors who helped inflict pain rather than alleviate it. Ultimately, there will be no free pass for the Bush administration officials who permitted torture, or for a Congress that let them get away with it.

Re: "Torture Whitewash," by Eugene Robinson of The Washington Post

May 13, 2005

Re: "Torture Whitewash," by Eugene Robinson of The Washington Post
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

The marvelous article by Eugene Robinson appended below appeared in The National Weekly Edition of The Washington Post for May 9-15, at p. 26. Whether it also appeared in the daily or Sunday Post is something I don’t know.

Sincerely yours,
Lawrence R. Velvel


The Washington Post
May 3, 2005 Tuesday Final Edition
SECTION: Editorial; A21LENGTH: 765 words
HEADLINE: Torture Whitewash
BYLINE: Eugene Robinson

BODY:
Twenty years from now, how will we remember this "global war on terrorism''? Assuming it's over by then -- assuming we haven't escalated a fight against al Qaeda into an all-out clash of civilizations -- will we look back on the GWOT, as Washington bureaucrats call it, and feel pride in the nation's resolve and sacrifice? Or will history's verdict be tempered by shame?

The answer will depend on how this Congress comes to terms with the documented mistreatment of prisoners in Afghanistan, Guantanamo, Iraq and who knows where else in the secret archipelago of U.S. detention.

The Bush administration and the Pentagon are whitewashing the whole thing. Congress still has the chance to uphold this nation's ideals and values, and some Senate Republicans (Lindsey Graham, John McCain, John Warner) vow to seek accountability. Given the inaction so far, though, I'm not holding my breath -- unlike the prisoners who were apparently tortured by "waterboarding," an interrogation technique in which the subject is strapped down and held underwater until he feels himself at the point of drowning.

It was a year ago when the first snapshots emerged from Abu Ghraib -- the pyramids of naked men; the vicious dogs lunging at naked men; and Lynndie England with her leash, leading a naked man like an animal. The one I can't get out of my mind is the hooded prisoner with wires attached to his genitals, fearing electrocution but seeming almost resigned to it, arms outstretched and head slightly inclined in a pose suggesting the Passion. It's something out of Hieronymus Bosch, a fantasy of Hell from the late Middle Ages.

A year later, only the low-ranking grunts who grinned and gave thumbs-ups while committing these sadistic acts have been made to answer. Only one ranking officer -- a reservist, a woman, Brig. Gen. Janis Karpinski -- has been sanctioned. The White House and Pentagon officials who opened the door to these abuses, and the careerist Army brass who oversaw the brutality, sit comfortably in their offices, talking disingenuously of "rogue" privates and sergeants. Physicians for Human Rights has just issued a report finding that U.S. authorities carried out "an ongoing regime of psychological torture of detainees" in Afghanistan, Guantanamo and Iraq.

The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States has signed, bans the inflicting of severe "physical or mental" pain to obtain information or a confession. There's no way that the infliction of physical agony, prolonged sleep and sensory deprivation, confinement in painful positions for hours on end, sexual humiliation, threats with snarling dogs and other documented U.S. abuses fall short of the definition.

Some prisoners were "rendered" to cooperating countries where old-fashioned fingernail-pulling is a routine investigative technique. Others have simply "disappeared," as if the U.S. government were some Latin American junta whose generals wear gold-braided epaulets as big as vultures. Most prisoners have been given neither adequate military nor civilian rights. Many don't know why they were arrested or what charges they face.

It may be that these are all terrible people who wish to harm the United States -- we have no way of knowing, because the supposed evidence is secret. But even if they are, this mistreatment is wrong. If the price we pay for complete safety is complete abandonment of our ideals, the price is too high.

How can President Bush preach to the world about democracy, about transparency, about the rule of law, and at the same time disregard national and international law at will? What message can Vladimir Putin be hearing? Or the dictators in Beijing? Or the mullahs in Tehran?

The thing is, history tends to be relentless in pursuit of the truth -- and its judgments tend to be harsh. World War II may have forged the Greatest Generation, but the internment of Japanese Americans in concentration camps will never be excused.

History, I predict, will not be kind to government lawyers who invented ways to interpret statutes against torture so that they supposedly permitted the abuses they were designed to prohibit. It will not be kind to medical doctors who attended interrogation sessions that clearly crossed the line -- doctors who helped inflict pain rather than alleviate it. Ultimately, there will be no free pass for the Bush administration officials who permitted torture, or for a Congress that let them get away with it.

Re: Statement by Professor Henry J. Abraham Regarding Plagiarism of His Work

May 9, 2005


Re: Statement by Professor Henry J. Abraham Regarding Plagiarism of His Work.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Professor Henry Abraham, whose 1974 book entitled "Justices and Presidents: A Political History of Appointments to the Supreme Court," which was plagiarized in Professor Tribe’s 1985 book entitled "God Save This Honorable Court," has given permission for the following statement by him to be posted here.

Prof Abraham, whom the Harvard Committee had interviewed on November 16, 2004, was not apprised by it of its April, 2005 report. He has not been willing to comment on the latter publicly, except to emphasize that he did not go public in 1984 when he became aware of the matter, although he now believes that he publicly should have done so; and, further, to observe that the committee’s categorization of Prof. Tribe’s actions as "inadvertent" or "unintentional" causes one to wonder how multiple instances of using someone else’s work can be appropriately classified as "inadvertent" or "unintentional." When The Weekly Standard’s exposé was published in early October 2004, Professor Tribe promptly and formally apologized to Professor Abraham, who accepted the apology.

Re: Paul Carrington’s Remarks To, And His Attack On, AuthorSkeptics

May 6, 2005

Re: Paul Carrington’s Remarks To, And His Attack On, AuthorSkeptics.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear AuthorSkeptics:

First, let me thank you for the kind comments you made about my most recent post on torture, entitled "Why Blogther?" Your views were greatly appreciated. But, you know, I do not totally agree with your self-deprecating remark that the torture question is "Ultimately far more important . . . than what we’re trying to do in our small corner of the world regarding plagiarism." What you are trying to do involves the fundamental question of honesty -- of truth -- and, as I’ve said many times, it is the now prevalent lack of truth that in my judgment is more responsible than any other factor for the various pickles Americans are in as a people and as individuals. As I’ve said, it is very difficult -- very difficult at best -- to make correct judgments when one has only untruthful, or no, information. Harvard, sitting at the pinnacle of the American educational system, should especially be a place which honors truth, not which disregards it. Harvard may not be, as Brandeis I believe once said of the government, the omnipresent teacher, but it is often a teacher, it is often followed. So please do not sell short the extraordinarily valuable efforts you have been making to insist on truth in Cambridge.

Now to Paul Carrington’s email and your response. Given his pedigree -- which, to those who recognize the great names of mid-century is far often more fulsome on his website than on yours (as generous as you are) and which is remindful in important ways of that of Lawrence Summers -- and given the influence he long since has managed to attain, it is perhaps not surprising that Paul Carrington was told of ghostwriting, by a luminary, even forty years ago, or that a major publisher once asked him to put his name to something that was ghostwritten. Perhaps to one of Carrington’s consequent "sophistication," the line that separates honesty and dishonesty, or truth and falsity, or whatever opposites he posits, is "illusionary," and it is therefore "quite out of order" for one to think punishment the just reward for those who cross the "illusionary" line he speaks of or who de facto condone the crossing. But to those of more modest background and position and therefore of less "sophistication," or to those who do not accept his transparently obvious inherent claim that a moral or other principle is illusory because there can be cases on both sides of the line, it is not so illusionary to think someone has crossed a Rubicon when he dishonestly takes credit for something written or done by someone else. In the commercial world this kind of thing is called fraud. In the academic world, as Judge Posner said, it may sometimes be, and be called, fraud. What would Paul Carrington call it? -- something that all should be able to do with impunity all the time?

I will tell you an obliquely related anecdote in this regard. There will be people out there who know of the anecdote, and will be able to attest whether my telling of it is correct or incorrect. If it is incorrect, they should correct me.

I graduated from the Michigan Law School in 1963, which must roughly be in the general time frame when Carrington received the good word about ghostwriting from some luminary. The fellow who was first in our class and editor of the law review became one of Chief Justice Warren’s clerks for the 1963-1964 term. That became, sadly, the time of the Warren Commission. As some of us thereafter heard the story -- some, I understand, hearing it from our Michigan classmate himself -- he subsequently said that, because so much of Earl Warren’s time was taken up with the world-wrenching work of the Commission, he (our former classmate) wrote the major and, I gather, others too of the political-system-altering one man, one vote cases handed down in June 1964 (Reynolds v. Sims and its "siblings" so to speak). This news that our classmate wrote the opinion(s) was a major surprise, and indeed even quite shocking, to at least some of us from the Michigan Law School who learned of it. Perhaps we were just hopelessly naive yahoos from the midwest, but we thought that judges wrote their own opinions and that their clerks’ function was to do research. The news seemed to us perhaps understandable in light of what was taking place in front of the Warren Commission in 1963-1964, but though understandable, it was nonetheless very surprising.

This episode reminds me in a way of a story about Mickey Mantle. Apparently in the 1990s, when hitting 40 home runs and stealing 40 bases in the same season had come to be looked on as quite an accomplishment, the super-fast, super-powerful Mantle said that, if he had known it would become such a big deal to do 40-40 in one season, he would have done it a few times himself. Well, a lot of people at the Michigan Law school in those days did not care to try to become clerks. But, if we had known that clerks write judges’ opinions, maybe more of us would ourselves have tried to become judges’ clerks and write their opinions. Like Mantle, if we had known, we would have tried.

Of course, as far as I am aware to this day, the reason we did not know in 1963 that clerks wrote judges’ opinions was not that they did it but we did not know, but that it was not in fact done (except, I guess, in the unusual circumstances of 1963-1964). So too there were -- one may no longer, or not much longer, be able to say there are -- there were many of us who were unaware that books (and articles?) are wholly or partly ghostwritten by students. We, poor naifs, lacked Paul Carrington’s sophistication and savoir-faire. Benighted, unsophisticated midwesterners that we were -- and sometimes remain in some ways, regardless of our zip codes -- we did not understand that the line between truth and dishonesty is merely "illusionary."

(Incidentally, Paul Carrington taught at the Michigan Law School for a period, but only after our class graduated. So people in my class were not exposed to his "sophistication.")

Let me now turn to Carrington’s "reactions to the anonymity of the ‘AuthorSkeptics,’" to his statements that, by being anonymous, you are guilty of an "exhibition of moral cowardice," that you therefore are likewise guilty of exhibiting a "trait that is singularly unbecoming to lawyers," and that "As between one who presents the work of others as his own and another who takes no responsibility for his utterances, I see no basis for choice" -- in other words, better plagiarism and ghostwriting than anonymity, better dishonesty than anonymity. It would no doubt be gravely unfair to say that only one of our pedigreed and influential would have such little sense as to think that dishonest conduct is somehow superior to anonymous but honest conduct that presents legitimate arguments. It seems a case of let them eat cake, if you see what I mean.

Now, let us be clear about something. I do not know who you are. We’ve never spoken, never corresponded by letter, and have only exchanged emails. I do not know your names. I do not know your positions. I have always assumed that you most likely are students at Harvard Law School, but for all I know you could be graduate assistants or professors. Some comments you have made lead me to believe it almost ineluctably likely that you are at Harvard Law School in some capacity -- though even that is not necessarily so -- but beyond that "I know nothing!" as Sergeant Schultz used to say. So what I am going to say in your behalf cannot in any way be attributable to or motivated by any personal acquaintanceship or friendship. (It would seem doubtful, wouldn’t it, that Carrington could make the same claim of dispositive non-acquaintanceship with Tribe? And perhaps Kagan or Bok too?)

You have, in my judgment, been performing a real service in service of honesty. And it is not impossible to imagine why you might feel compelled to remain anonymous. Fear of retribution is all around us in this society. You say that there are "articles documenting that even some tenured professors at Harvard insist on remaining anonymous in making criticisms of the Harvard administration," and those of us who live in the Boston area, at least, know that the media have carried stories of fear at Harvard. I can tell you that emails have been sent to me by well known, tenured professors at Harvard and elsewhere who wish to remain anonymous out of either implicitly expressed or explicit fear of consequences. Not everyone has the patrons that Carrington admits on his website to having had, not everyone has the associated help that people like Carrington and Summers have had, and there are people in whom a degree of fear and a desire for anonymity are completely understandable. God knows I would not stand up for anonymity at all times, in all places and in all circumstances. But where people are saying logical and reasonable things in favor of honesty and good faith, and might stand to be harmed if their names are known, it does not seem to me to be automatic that "anonymity [is] an exhibition of moral cowardice" and, as Carrington would have it, is inferior to dishonesty. So, if you are students at the Harvard Law School, or graduate assistants there, or professors there, and fairly could be thought possibly subject to some non-negligible form of retribution, I would find your desire for anonymity perfectly understandable and acceptable, even if one might prefer to know who you are. Of course, if you are Tribe’s assistant(s), or are good friends with him, one might feel quite differently about your anonymity. Somehow I doubt that you are either of these or similar things.

One must add a further comment about Carrington’s logic or, more accurately, his lack of it. As part of his attack on you, Carrington says, yes, he too has "on occasion used a pen name," doing so "for the purpose of disclosing that my remarks were not entirely serious." Huh? He had to use a pen name, not his real name, in order to "disclose" that his "remarks were not entirely serious"? Why didn’t he just say so? Or, if he didn’t want to just say so, why didn’t he rely on people’s ability to recognize satire or whatever it was as being satire or whatever it was? Why did he feel the need to hide behind a pen name, without disclosing his real name (assuming he in fact, did not also disclose his real name, as seems implied by his remarks to you)? Did the use of a pen name add so much that, absent a pen name, what he wrote would have fallen flat? This would seem hard to believe, and not very complimentary if true.

(In the interest of full disclosure, let me say that I too once used a pen name. In the early 1980s, when a partner in a large, conservative law firm, I wrote eight or ten humor articles for Legal Times. I still think some of those articles were among my best writing. But, as a partner in a large conservative firm, it did not seem appropriate, and it seemed to even conceivably be potentially dangerous professionally, to write the (sometimes mind bending?) humor under my real name. So I used the pen name "M.E. Shugee." It was very disappointing that some people who knew that "M.E. Shugee" was a pen name did not get the joke (that I hope was inherent in it).)

In his attack on you for using a pseudonym, Carrington also says the following, immediately after remarking that he has used a pen name to "disclose" that his "remarks were not entirely serious": "I realize," he continued, "that the device [of using a nom de plume] was in common usage in the 18th century. But Alexander Hamilton lived in a much more troubled time; he could have been arrested for his utterances. That surely is not the case for this [the AuthorSkeptics] blog." He thereupon accuses you of "moral cowardice," as discussed above.

What does the 18th century have to do with it? Yes, it is true that anonymity was often used then. But has it never been used thereafter (except when serial killers like Kaczynski or the Wichita guy send taunting notes to the cops)? Is Carrington unaware that today lots of bloggers use "noms de blog" as it were, and that whether you could even learn all of their real names is something one doesn’t know? Does Carrington not know that, in the analogous area of newspaper and other media sources, lots of people insist on remaining unidentified -- even, or even especially, high government officials? And what the hell is this business of excusing Hamilton but blasting you because he, but not you, "lived in a much more troubled time; he could have been arrested for his utterances," but you will not be. True, Hamilton often wrote under pen names, although whether he would have been arrested for what he said is something that seems dubious, except perhaps for his anti-British writings just before the beginning of the Revolution. Having read Chernow’s biography of Hamilton perhaps a year or so ago, and not remembering all that much, after reading Carrington’s statement this writer skimmed Chernow’s lengthy book, found many references to anonymous writings by Hamilton, found brief discussions of the reasons anonymity was used by Hamilton and others in those days, but could find not one statement that fear of jail was Hamilton’s reason for choosing anonymity (although it seemed to me likely that such a concern certainly could have existed with regard to his anti-British writings just prior to the Revolution). But my skimming may, of course, have missed something.

But even if I missed something, even if fear of jail was at some point a reason for Hamilton’s use of pen names, why is this of any relevance whatsoever? Is it really possible that Carrington thinks, as seems the implication of his statements, that only fear of jail is sufficient to justify use of a pen name in the 21st century? For at least the last 58 years or so people who have said unpopular things, no matter how correct their views may or may not turn out to be, have had to fear loss of jobs and income, being booted from universities, being booted from government, social opprobrium, and other formal and informal punishments that can be devastating. (Perhaps the only thing they no longer need fear is lynching and, most of the time, but certainly not always, jail.) Is Carrington blind to all this? Is he blind, analogously, to what has happened to many whistleblowers whose names have been found out? Does he not care a whit about the punishments visited on the unpopular or the whistleblower? Does he really hold the incredible view that the possibility of jail is the sole consequence that could legitimately justify anonymity? If so, wow!

Frankly, in your comments about Carrington, you have been very kind to him. It is hardly unreasonable to think, particularly given his truly dastardly attack on you, that you have been much too kind.

One last point. In your response to Carrington you rightly correct (an obvious) mistake he made about my views, by "clarify[ing] what we see as Dean Velvel’s position." I would not wish to add anything to your clarif[ication]. Of course, if information were to surface demonstrating that the problems are more pervasive than has presently been shown, I would reserve the right to change my views, to harsher ones.*

Sincerely yours,
Lawrence R. Velvel
Dean, Massachusetts School of Law

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Re: Why Blogther?

May 5, 2005

Re: Why Blogther?
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Last December, shortly after this writer first criticized what Jack Goldsmith did to facilitate rendition, a highly estimable lawyer who has been a leader in the battle against torture sent me an email about the criticism. The email was posted here on December 16th. While my correspondent disapproved of rendition, he and his other expert colleagues felt Goldsmith’s work on it was intellectually competent, and he criticized this writer for going after Goldsmith, saying "Surely this is a target rich environment and there are far better suited objects for your criticism." In a fairly extensive reply that was also posted here on December 16th, this writer explained why he thought that the question was not the professional competence of legal work supporting torture, but was rather an issue of morality and of lawyers once again facilitating evil, as they so often have. This writer also replied as follows to the question of "targets."

Another point I wish to make to you is this. You say "this is a target rich environment and there are far better suited objects for your criticism" than Professor Goldsmith. Well, I am not a reporter. I am a law school dean. So I do not go out -- and haven’t the time to go out -- and dig up information on people. My contribution, if any, lies in analysis and philosophy, using facts uncovered by others. To be informed about "objects for [my] criticism" in order to bring analysis and philosophy to bear, I inevitably have to rely on facts the media uncovers and what investigating groups like yours find out. If the media were more assiduous in finding out information about the malefactors to whom you obviously seem to be referring, I would write more criticism of them.

Particularly because my correspondent has done wonderful work, one hopes this answer regarding targets satisfied him, and, since he did not take issue with my reply, and thereafter continued to send me some terrific stuff he wrote, one believes that conceivably the reply did satisfy him.

I bring up this exchange because what was said in it is relevant to things occurring now. Last weekend CSpan carried some taped panel discussions in which it was said, correctly one thinks, that blogs (at least ones that are politically oriented to some extent) exist for two purposes. One is to ferret out new information not previously uncovered by the mass media or not previously transmitted by it. This is what led to the professional debacles of Dan Rather and Eason Jordan. But, as was said on CSpan, bloggers do not usually have the resources to do investigative work. So the second and bigger function of most blogging is to spread the word about and to analyze matters uncovered elsewhere, in order to ultimately get these matters into the mainstream -- in order to have the matters ultimately picked up in the mainstream media from which most people still get their news. These types of comments at panel discussions, especially the comments about the far more prevalent phenomenon of blogs spreading the word so to speak, represent increasing recognition of two of the major functions of politically-oriented blogs.

Yet it is also the case that bloggers, at least liberal ones, are falling down on the job in performing their functions in one area of importance. As far as this writer knows, no blogger has taken up the question of whether Bush is guilty of a felony because of the rendition of prisoners to countries like Syria, Egypt, Pakistan and Uzbekistan for torture, a matter discussed here on several occasions, most recently on Tuesday, May 3rd. (Nor have bloggers taken up the question of whether Bush is guilty of a felony because of torture done by Americans themselves; bloggers have failed to discuss this even though there is a fair body of opinion holding that it was the Bush/Cheney policies which led to the torture done by Americans themselves.)

As was explained here in a lengthy post of March 17th, and briefly reiterated on May 3rd, it is a crime under federal statutory law to conspire to have torture committed outside the United States. This crime is punishable by up to life imprisonment if the torture results in death and up to 20 years if it doesn’t. As extensively discussed on March 17th, there can be no honest doubt that Bush knew of and approved the rendition program and its purposes, and knew what occurred because of it, i.e., knew that torture was occurring. So this writer, at least, cannot understand any reason why Bush is not guilty of a serious felony. (It was, indeed, as discussed here previously, a fear of precisely such criminal liability for Bush and others that led to the drafting of phony baloney memos -- at least one of which has now been withdrawn -- that purported to find legal justification for what was being done.) And, as said here on May 3rd, so far not one single person -- not one -- has denied the accuracy of any part of the chain of reasoning leading to the conclusion that Bush -- and Cheney, and Rumsfeld, and Wolfowitz, and some others -- are guilty of the felonious crime of conspiracy to commit torture.

So why is it that liberal bloggers have not discussed this matter, have not fulfilled the function of spreading the word, so to speak, so that the matter ultimately will have to be presented by the mainstream media? One understands why conservative bloggers -- Bush aficionados and similar types -- would not want to get near the matter with a thousand foot pole: It could result in the termination in office, via impeachment and conviction, or via resignation, of their heroes, Bush and Cheney. It would have been fine in their view for Clinton to have been convicted or forced to resign because of oral sex and lying -- a position I would not disagree with because he was one of the all time liars and perjured himself, not to mention the impropriety of doing what he did in the oval office itself -- but God forbid that Bush and Cheney should have to resign because people have been tortured, even killed by torture, due to their felonious actions. Not to mention that such convictions or resignations would make sad sack Denny Hastert President, wouldn’t it? And would almost guarantee a Democrat victory in 2008 -- thereby possibly making Hilary President. Oh boy. One can understand why conservative bloggers wouldn’t want to get near this.

But what about liberal bloggers, or bloggers who see the Iraq war, torture, and all the accompanying baggage as being really awful things in American history? Why are they not discussing the question of felonious conduct by Bush and Cheney? The matter is not very complicated, after all. The statute is simple and clear. One needn’t be a lawyer to understand it. And liberals who are lawyers will easily understand it, of course.

So, again, why is there no discussion in order to bring the issue into enough prominence so that the mainstream media will have to put it before people? Surely the liberals, the opponents of the war, the opponents of torture, know the media will not deal with it unless it is first brought into prominence elsewhere. Television and radio networks and stations deal with it? -- and risk governmental attacks and threats of loss of licenses? I don’t think so. Newspapers and magazines deal with it? -- and risk vicious sustained attacks from Cheney, DeLay, and the other Republican henchmen? I don’t think so.

Yet the issue is an important one, and bloggers who are liberals or opponents of the war or of torture should deal with it. If you won’t discuss something of this importance, why bother to have a political blog? Why blogther, so to speak? And not only should liberal bloggers deal with it, but conservative ones should have to also. Lots of conservative bloggers are lawyers and, if the lawyers among them, or the nonlawyers, have some good reasons to offer why the top people in our government are not guilty of a felony due to the renditions for torture, then let’s hear it, let’s hear those reasons, especially if the liberals make a long overdue entry into the fray. Otherwise, once again, why blogther?*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.
C:\My Files\Blogspot\Blogltr.WhyBlogther.wpd

Re: An Example Of Right Wing Attacks

May 4, 2005

Re: An Example Of Right Wing Attacks.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

I normally do not post the occasional over the top email which I may receive. But the one appended below seems such a fine example of right wing fanaticism -- and therefore of the kinds of attacks faced by anyone who does not agree with right wingers -- that it seemed to me to warrant posting. It really is not that every single thing said by my friend (yup, in truth my friend) Hulugu is incorrect. To the contrary, he says one or two things that may briefly be worth pondering, although I do think them to be, upon even the merest analysis, incorrect, insupportable or very misleading. It is, rather, that the virulence, the vituperativeness, of the attack represents the kind of thing that people face if they do not agree with the right wing. Am I incorrect in thinking that the appended is, in its own way, reminiscent of the Brown Shirts?*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Date: Wednesday, May 04, 2005 12:55 AM
To: velvel@mslaw.edu
Subject: Re: Boiling people alive courtesy of George Bush and company

this natta article is the WORST sort of inferential journalism built on anti american surmises and the desire to weaken the effectiveness of the american defense forces in the war on islamofacism in classic 4G warfare tactics--the collar doesn't match the cuffs [the body of the story doesn't match the headline] as there is no DIRECT evidence of torture of rendered prisoners except for their own statements which they are beholden to give by lying in a classic application of the islamic doctrine of taquiyya [not that y'all have the slighest clue what that means}--is karamov a bad actor and a dictator--yeah he's a son of a bitch but he's our son of a bitch--so get real--he's a muslim anti wahabbist who can't stand the reactionary jihadis who threaten his country and US too [do you want them to fly a plane into your house to "get it"] what's it like to be so clueless about the nature of our enemy that you want to impeach bush [elected to save your ass in spite of yourself]--is this the best that an LLL journalist can do--no DIRECT evidence that the planes carried jihadis–no DIRECT evidence of torture--an old human rights report of how karamov treats his own domestic prisoners--so what--its well known that turkey uses torture on domestic prisoners and its being considered for e.u.membership–this is an example of poor reporting built on speculation from unamed sources and rampant guess work--its an homage to perfidious conjecture--the one cia source [unamed] says the torture is not happening--you lead with the inference that bush is responsible for boiling people--how irresponsible of you to use these cheap properganda techniques--I’m disappointed in your analytical failure of this slanted article--it fails jounalism 101–another coup for pinchy the left wing publishing putz propagandist-- c'est arrant nonsense --you have been FISKED HULAGU

Re: Boiling People Alive Courtesy of George Bush and Company

May 4, 2005

Per the webmaster, Timeless Hemingway, (www.timelesshemingway.com):

"Cowards die a thousand deaths. The brave die but once" is from

A Farewell To Arms, E. Hemingway, 1929.

(Chapter 21, page 130).

Re: boiling people alive courtesy of George Bush and company

----- Original Message -----

From: Jane E. Kirtley
To: Dean Lawrence R. Velvel
Sent: Tuesday, May 03, 2005 2:16 PM
Subject: Re: boiling people alive courtesy of George Bush and company

>I think it was Hemingway who said that "Cowards die a thousand deaths. The brave die but once."

Actually, it was Shakespeare -- Julius Caesar, Act II, scene ii. The actual quotation is: "Cowards die many times before their deaths/The valiant never taste of death but once."

Jane E. Kirtley
Silha Professor of Media Ethics and Law Director,
Silha Center for the Study of Media Ethics and Law
School of Journalism and Mass Communication
University of Minnesota
111 Murphy Hall
206 Church Street, SE
Minneapolis, MN 55455612 625 9038 (voice)612 626 8012 (fax)
kirtl001@tc.umn.edu (e-mail)

Re: Boiling People Alive Courtesy of George Bush and Company

----- Original Message -----

From: Horton, Scott (x2820)
To: 'Dean Lawrence R. Velvel'
Sent: Tuesday, May 03, 2005 11:59 AM
Subject: RE: boiling people alive courtesy of George Bush and company


A very good post. I know Uzbekistan very well (Uzbek refers to an ethnic group, Uzbekistanis refers to citizens of Uzbekistan regardless of ethnicity, by the way), having spent much time there off and on over the last ten years. It's a brutally repressive state. The Defense Department's embrace of them is a gross strategic error of judgment, as we'll no doubt learn when the teetering Karimov regime finally falls.

Scott Horton
PATTERSON, BELKNAP, WEBB & TYLER LLP
1133 Avenue of the Americas New York, NY 10036-6710
Tel: +1 212 336 2820 Fax: +1 212 336 2246 Mobile: +1 917 216 2319
email: shorton@pbwt.com


-----Original Message-----

From: Dean Lawrence R. Velvel [mailto:velvel@mslaw.edu]
Sent: Tuesday, May 03, 2005 11:52 AM
To: Undisclosed-Recipient
Subject: boiling people alive courtesy of George Bush and company

May 3, 2005

Re: Boiling People Alive Courtesy Of George Bush And Company.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.blogspot.com

Dear Colleagues:

Don Van Natta Jr. disclosed in a long article in The Times on Sunday that the US has been rendering prisoners to Uzbekistan. That’s right, Uzbekistan, a country most Americans have rarely, if ever, heard of. (It is a former Soviet Central Asian republic, and is one of the so-called stans, like Pakistan, Afghanistan, Turkestan, etc.) For the last few years, under George Bush, America has been cooperating with and using Uzbekistan although, both previously and still, the State Department has condemned the country in its (annual) human rights report as a place where torture is common, systematic, pervasive, etc. So Uzbekistan now joins other freedom-loving nations like Egypt, Jordan, Syria, Morocco, Saudi Arabia, and George’s favorite stan, Pakistan, as a country that does some of our torture dirty work for us.

It is estimated that about 100 to 150 people have been rendered to these countries. How many have been sent to Uzbekistan in particular is not known, though incomplete records show that the Gulfstream and the Boeing 737 used by the CIA as its flying Batmobiles to render prisoners to other countries flew to Tashkent, the Uzbek capital, at least seven times in 2002-2003, and a former British ambassador to Uzbekistan is quoted as saying that C.I.A. plans landed in Tashkent "‘usually twice a week.’"

The Uzbeks (why aren’t they the Uzbekis? or the Uzbekistanis?) are in some ways unique in the torture that they employ. Oh, they do the usual stuff like beating people and using electroshocks on genitals. They also rip out fingernails and toenails with pliers, which perhaps is not quite as common these days. But they also have some unique methods. One is asphyxiation with a gas mask. Another hasn’t been seen since the Middle Ages. They boil people. That’s right. They boil people. They boil people’s body parts, sometimes boil the whole body (one is "immersed in boiling water"), and sometimes boil people to death. It makes one long for the good old days of firing squads, doesn’t it?

George Bush was asked about the Uzbeks’ actions at a press conference recently. He responded with his usual defacto lie, "‘We seek assurances that nobody will be tortured when we render a person back to their home country.’" As even the timid, courageless American media have written, however, these so-called assurances, even if sought and given (which one might be somewhat dubious about), are meaningless, and are known to be meaningless. Everybody involved knows that torture will occur. Torture is the very reason for the rendition. And by the way, is Uzbekistan the home country of all the people rendered there? Were they all Uzbeks (or Uzbekis? or Uzbekistanis?)? Why am I dubious? And if they’re not, Bush’ statement was a defacto lie in this regard, too, since his claim implied that people are rendered to their own country, not some other country. Of course, as said before, George W. Bush, like Clinton and Johnson and Nixon, wouldn’t know the truth if he fell flat on his face over it. But, then, there is little chance of Bush falling flat on his face over the truth. He so rarely gets near it.

It has been said here before (e.g., in a lengthy post of March 17, 2005) that, due to the program of rendering people for torture, George W. Bush is guilty of a federal crime, of a crime under American statutory law. Bush (like Cheney and some others too) is guilty under Title 18 of the United States Code Section 2340A subsection (c) of the crime of conspiracy to commit torture, a crime punishable by up to life imprisonment, a crime which is obviously impeachable because it is a serious felony. Not a single person -- not one -- has ever written or emailed me to say that any part of this view is incorrect -- not even a highly accomplished, somewhat conservative genius who previously had told me that there was more to be said for rendition than I was acknowledging. But although not one single person has said the view expressed on March 17th is incorrect, neither the mainstream media nor Bush’s political opponents have had the courage to come out and say that the leaders of the American government have been committing serious, impeachable crimes.

As someone had the guts to say on a recently taped program that was shown on CSpan this weekend (was it Mark Danner?), torture is now American policy, and it was to protect the President against criminal charges that John Yoo and Jay Bybee wrote a now-withdrawn memo claiming that obvious torture supposedly was not torture. That memo also said, though this has been largely forgotten, that the President, i.e., George Bush, can, as Commander-in-Chief, order torture, and thereby override and be completely exempt from the laws of Congress -- a theory of the Commander-in-Chief power which represents the end of the rule of law in this country in favor of rule by presidential fiat. (Yoo is now a law professor at Berkeley and Bybee a federal appellate judge -- rewards accruing for providing legal cover for crime, as tax and security lawyers often do). And protecting Bush against criminal charges -- again providing legal cover for crime -- was the very reason behind Jack Goldsmith’s memo saying that transferring persons to other countries is lawful. (Goldsmith’s reward was a law professorship at Harvard.) So conservatives have had the misplaced courage to boldly try to provide cover for criminal action -- doing so precisely because it was feared that what Bush was doing was and is criminal -- but neither liberals nor the media have had the guts to say that criminal action is criminal. The liberals and the mainstream media, quite obviously, are afraid that they will be boiled in political hot water if they speak the obvious truth. Better, therefore, that we should send people to possibly be boiled in real hot water in Uzbekistan than that liberals or the media should be boiled in political hot water at home.

I think it was Hemingway who said that "Cowards die a thousand deaths. The brave die but once." Just as cowards die a thousand deaths, so too there are a thousand reasons for cowardice -- as when The New York Times, during World War II, was too cowardly to print front page stories of the holocaust taking place under the Nazis because of fear that such publication would cause The Times to be seen as a Jewish newspaper, or as when liberals and the mainstream media decline to discuss the real truth about torture today because of fear of political hot water.*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

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Re: Boiling People Alive Courtesy Of George Bush And Company

May 3, 2005

[[[audio]]]

Re: Boiling People Alive Courtesy Of George Bush And Company.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.blogspot.com

Dear Colleagues:

Don Van Natta Jr. disclosed in a long article in The Times on Sunday that the US has been rendering prisoners to Uzbekistan. That’s right, Uzbekistan, a country most Americans have rarely, if ever, heard of. (It is a former Soviet Central Asian republic, and is one of the so-called stans, like Pakistan, Afghanistan, Turkestan, etc.) For the last few years, under George Bush, America has been cooperating with and using Uzbekistan although, both previously and still, the State Department has condemned the country in its (annual) human rights report as a place where torture is common, systematic, pervasive, etc. So Uzbekistan now joins other freedom-loving nations like Egypt, Jordan, Syria, Morocco, Saudi Arabia, and George’s favorite stan, Pakistan, as a country that does some of our torture dirty work for us.

It is estimated that about 100 to 150 people have been rendered to these countries. How many have been sent to Uzbekistan in particular is not known, though incomplete records show that the Gulfstream and the Boeing 737 used by the CIA as its flying Batmobiles to render prisoners to other countries flew to Tashkent, the Uzbek capital, at least seven times in 2002-2003, and a former British ambassador to Uzbekistan is quoted as saying that C.I.A. planes landed in Tashkent "‘usually twice a week.’"

The Uzbeks (why aren’t they the Uzbekis? or the Uzbekistanis?) are in some ways unique in the torture that they employ. Oh, they do the usual stuff like beating people and using electroshocks on genitals. They also rip out fingernails and toenails with pliers, which perhaps is not quite as common these days. But they also have some unique methods. One is asphyxiation with a gas mask. Another hasn’t been seen since the Middle Ages. They boil people. That’s right. They boil people. They boil people’s body parts, sometimes boil the whole body (one is "immersed in boiling water"), and sometimes boil people to death. It makes one long for the good old days of firing squads, doesn’t it?

George Bush was asked about the Uzbeks’ actions at a press conference recently. He responded with his usual de facto lie, "‘We seek assurances that nobody will be tortured when we render a person back to their home country.’" As even the timid, courageless American media have written, however, these so-called assurances, even if sought and given (which one might be somewhat dubious about), are meaningless, and are known to be meaningless. Everybody involved knows that torture will occur. Torture is the very reason for the rendition. And by the way, is Uzbekistan the home country of all the people rendered there? Were they all Uzbeks (or Uzbekis? or Uzbekistanis?)? Why am I dubious? And if they’re not, Bush’ statement was a de facto lie in this regard, too, since his claim implied that people are rendered to their own country, not some other country. Of course, as said before, George W. Bush, like Clinton and Johnson and Nixon, wouldn’t know the truth if he fell flat on his face over it. But, then, there is little chance of Bush falling flat on his face over the truth. He so rarely gets near it.

It has been said here before (e.g., in a lengthy post of March 17, 2005) that, due to the program of rendering people for torture, George W. Bush is guilty of a federal crime, of a crime under American statutory law. Bush (like Cheney and some others too) is guilty under Title 18 of the United States Code Section 2340A subsection (c) of the crime of conspiracy to commit torture, a crime punishable by up to life imprisonment, a crime which is obviously impeachable because it is a serious felony. Not a single person -- not one -- has ever written or emailed me to say that any part of this view is incorrect -- not even a highly accomplished, somewhat conservative genius who previously had told me that there was more to be said for rendition than I was acknowledging. But although not one single person has said the view expressed on March 17th is incorrect, neither the mainstream media nor Bush’s political opponents have had the courage to come out and say that the leaders of the American government have been committing serious, impeachable crimes.

As someone had the guts to say on a recently taped program that was shown on C-Span this weekend (was it Mark Danner?), torture is now American policy, and it was to protect the President against criminal charges that John Yoo and Jay Bybee wrote a now-withdrawn memo claiming that obvious torture supposedly was not torture. That memo also said, though this has been largely forgotten, that the President, i.e., George Bush, can, as Commander-in-Chief, order torture, and thereby override and be completely exempt from the laws of Congress -- a theory of the Commander-in-Chief power which represents the end of the rule of law in this country in favor of rule by presidential fiat. (Yoo is now a law professor at Berkeley and Bybee a federal appellate judge -- rewards accruing for providing legal cover for crime, as tax and security lawyers often do). And protecting Bush against criminal charges -- again providing legal cover for crime -- was the very reason behind Jack Goldsmith’s memo saying that transferring persons to other countries is lawful. (Goldsmith’s reward was a law professorship at Harvard.) So conservatives have had the misplaced courage to boldly try to provide cover for criminal action -- doing so precisely because it was feared that what Bush was doing was and is criminal -- but neither liberals nor the media have had the guts to say that criminal action is criminal. The liberals and the mainstream media, quite obviously, are afraid that they will be boiled in political hot water if they speak the obvious truth. Better, therefore, that we should send people to possibly be boiled in real hot water in Uzbekistan than that liberals or the media should be boiled in political hot water at home.

I think it was Shakespeare who said that "Cowards die a thousand deaths. The brave die but once." Just as cowards die a thousand deaths, so too there are a thousand reasons for cowardice -- as when The New York Times, during World War II, was too cowardly to print front page stories of the holocaust taking place under the Nazis because of fear that such publication would cause The Times to be seen as a Jewish newspaper, or as when liberals and the mainstream media decline to discuss the real truth about torture today because of fear of political hot water.*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.