Peter L. Berger's Blog, page 147

The Past Was Yours

We don’t have many indigenous art forms in America, save what we mix and match from our inheritances. Jazz is one. The Western picture is another. Film noir makes a disreputable, thrilling third, but when we think of the finest American movies ever made, our thoughts rarely venture to that knotty, and naughty, side of town despite the too-ample reservoir that awaits us. Indeed, today too much is mistakenly categorized as noir—a modern cop psychological police procedural like True Detective, say. But that’s simply a matter of our current culture taking the liberty to term things as they please, which amounts to the type of shystering that the hardscrabble characters of any great noir picture would throw down, sweating the consequences later.

That said, I have seen Jacques Tourneur’s 1947 noir Out of the Past a great many times, and it may well deserve to be in the company of Citizen Kane, Vertigo, The Searchers, and The General as one of this country’s best motion pictures. And that is in large part due to its star, Robert Mitchum, whose hundredth birthday we mark on August 6.

Mitchum is rarely discussed as a master thespian, an American acting talent to rival England’s Laurence Olivier, or even Marlon Brando or Jimmy Cagney, the man Orson Welles called the best we have produced. That may be because Mitchum came to a sort of prominence by acting in popular oaters like Hoppy Serves a Writ (1943), a William Boyd Hopalong Cassidy vehicle with Mitchum billed laconically as a “henchman.” Mitchum joked that he had two acting styles: with a horse and without. Yet right from his early Bs, he had presence, with his wide-squared shoulders, a walk that seemed never to be in a hurry to get anywhere, but which advanced rapidly all the same, and the prepossessing attitude of a man who knew that better ventures than hiding out in the cave over the bluff awaited.

One of those ventures took the form of a role in William Wellman’s 1945 picture, The Story of G.I. Joe, a masterwork of martial cinema from a mid-century genre that was long on glut, flag waving, and hooray for our side-isms, and short on tonal variety, invention, and that wellspring of deep personal feeling that the best movies have. Mitchum almost singlehandedly saved the movie.

Movie critic James Agee liked to argue that Mitchum couldn’t carry a film—that he was excellent if you caught him in a supporting role, but no film’s quality could rely on those square-rigged shoulders. I deeply respect Agee, but one of the joys of reading him after the fact is that he could be so wildly wrong but wrote so well that you scarcely cared at the time. Even our best critics tend to produce a lot of crazily erroneous critical statements that we look back on later with a sigh. Reading some of Charlie Parker’s notices way back when might persuade you, if you didn’t know better, that someone had stuck a saxophone in Pluto’s mouth and told him to solo while Mickey Mouse clapped along.

In Out of the Past, the only things that clap along with Mitchum are your feelings, specifically those of the stripe that make a movie viewer pull for a person who doesn’t actually exist—yet in a way exists more than most of us do up on a white screen, that great rectilinear ghost that projects stories upon us as we project our innermost sensations back upon it. When all is said and done, even the noir genre is still a form of theater, and as always theater carries with it its origin as a means to testify to the things we ultimately find mysterious about ourselves and thereby sacred in our creator.

Film noir buffs are aware of the tropes of the form. For instance, there will be a femme fatale, an evil woman who will cause a morally complex—but mostly good—man to make decisions he normally would not make, which will be his undoing, and possibly even the cause of his death. There will be an endless parade of shadows, of sharp lines, of wet streets, and a prevalence of night over day.

Most film noirs are urban concerns, but Out of the Past is oriented around the bucolic town of Bridgeport, California, which is where a henchman named Joe Stefanos, played wonderfully by Paul Valentine, is driving through when he stops at a gas station run by Jeff Bailey, played by our man Mitchum. His best friend is a deaf and dumb boy, known simply as the Kid (Dickie Moore), and he is romancing a gem of a girl in Virginia Huston’s Ann Miller.

Stefanos works for a Tahoe crime boss, specializing in gambling, named Whit Sterling, (played by Kirk Douglas in the actor’s first virtuosic turn). Bailey used to be a private investigator whom Whit had hired to find the woman who shot and ran out on him in Jane Greer’s Kathie Moffatt. He wants to see him now, as Stefanos makes threateningly clear.

We then venture into the film’s first flashback, for which noir films have special affection. But so do you and so do I, for that is the manner in which we are oriented as humans. We are always flashing back in retrospective introspection, hoping to learn something to stand us in better stead in the future. It’s human nature, and it’s also the central tenet of film noir—how to extricate one’s self from the past, and how to cleave out room for meaning in worlds we have yet to enter.

If you know Out of the Past, you know that its plot can be a touch nebulous. It’s not nearly as much so as Howard Hawks’s The Big Sleep (1946), which eventually gave up the ghost of actually making sense in favor of working in more choice lines from Lauren Bacall. Out of the Past isn’t actually all that difficult to follow, once you work out one tricky little plot point, which we’ll come to in a moment. We learn that Jeff Bailey was once Jeff Markham, that he tracked down Whit Sterling’s missing moll in Mexico, fell for her, ran off with her, and hid out with her in a small house out in the sticks, where his former detective partner caught up with the two of them. The ex-partner tries to blackmail Bailey, the two then duke it out before Greer’s Kathie Moffatt puts a slug in the guy and runs off, leaving Markham/Bailey utterly screwed.

All of this is told to Ann, as she drives Bailey to Sterling’s place. Before we have met Kathie Moffatt in real time, within the picture, we think—and I defy you not to—that she is the most deceptive character in all of cinema. People tell stories about their nefarious exes like they tell the-fish-that-got-away stories, with hyperbole no doubt bolstered as a result of heartbreak. The heart tends to pump up reality, super-sizing it for both good and low matters. Tourneur’s advice to Greer as they were shooting these scenes: “No ‘big eyes.’ No expressive. In the beginning, you act like a nice girl. But then, after you kill the man you meet in the little house, you become a bad girl. Yes? First half good girl. Second half, bad girl.” Yes; she got it.

Meanwhile, Mitchum has that larger-than-the-screen-can-contain physical appearance working for him, but it’s his voice that really motorized his kind of acting genius. The last time I saw Out of the Past was earlier this summer on a big screen at the Brattle Theatre, a Cambridge, Massachusetts movie house that has been around since the early 1950s. The Brattle has for decades now touted itself as the area’s unofficial film school, and in that spirit I took up my normal seat in the last row of the balcony. This time I “watched” Out of the Past with my eyes closed, treating it like an album, a story woven into a sonic tapestry.

A lot of responsibility rests on Mitchum’s voice, because it is that voice that carries us through the flashbacks. It has lilt and power, it has musical finesse, it has that same quality of poetry come alive that you experience when you listen to Dylan Thomas’s 1952 recording of “A Child’s Christmas in Wales,” but with that soaked-in-vinegar quality of what the noir man always comes to know at some point: that things are not auguring well, likely won’t work out well, and, while a good man is hard to find, one who does the right thing when the writing is on the wall is harder still to locate.

But we find him in Mitchum. At Sterling’s Tahoe residence, we learn that Kathie is back in the fold. The look on Mitchum’s face when he sees her could be freeze-framed on the screen and used as a model for Picasso to fracture into a hundred little blocks of human feeling, a Cubist/noir portrait that pulls the geometry of the soul out of a person and etches it upon a countenance.

Witt sends Bailey on a fool’s errand that is intended both to spring the former from his troubles with the IRS and to double-cross the man who he believes double-crossed him. We end up in San Francisco, there’s a frame-up, and, having seen this film so many times now, I am certain that the confusion as to the plot arises when Bailey hides in a room and catches a woman making a phone call regarding a plot to end his life. We expect it to be Theresa Harris, who has just entered the movie as Eunice Leonard and is central to this subplot about stealing Sterling’s indicting tax papers; it is in fact Jane Greer’s Kathie Moffatt, with some similarity of appearance throwing you off for a bit. That’s not shocking: As Greer said, it was like the set was lit with not all that many matches, so that you often couldn’t even tell how big the crew shooting the picture was.

Geoffrey Homes—who was actually Daniel Mainwaring (everyone has two names in this film!)—wrote the book on which the movie is based, and he also had a lot to do with the screenplay. We often like noirs because of their quotability, and the great-quote quotient in Out of the Past is dizzyingly high, which is perfect for Mitchum’s acrobatic voice. He is the Keats of this shadowy netherworld that has come to roost on the surface of daily lives, and he even manages to be funny with the way he alters words cadentially, giving special ironic emphasis to a syllable you wouldn’t expect to have any.

After I sat through the picture with my eyes closed, I stayed for the next showing, and opened them wide. I could watch this film another hundred times, and I know my pulse will race yet again when Mitchum’s Jeff Bailey, who we know is not going to escape this particular jam, comes to learn, right on the verge of a new life, the last act of evil that has been put in motion against him by Greer’s Moffatt. She believes his free will has been taken from him, and that she will now be calling the shots. In a voice all but boxed in by icicles, she tells Bailey that she is running the show now, and he has no one left to make deals with because she is all that remains for him.

But there is never just one person for anything when there is also yourself. The smallest shape in noir relationships is a triangle, it turns out. That’s why I’m never sad at the end of Out of the Past, and it’s also why I want to lower my shoulder and knock down the closest wall on my way out of theatre and back onto the street of my quotidian life.

Bailey/Mitchum pauses for a beat, and then says, “Well, build my gallows high, baby.” Meaning, it takes a tall gallows to hang a big man, so start rounding up the wood, because you’re going to need a lot of it. And start rounding up the wood for Robert Mitchum and Out of the Past, because there has never been a better pairing in American movie history, an un-hangable tandem conspiring—in the good way—for a deathless work. The best noir men always get out alive, in their own way.

The post The Past Was Yours appeared first on The American Interest.

Tick-Tock for Netanyahu?

The months-long criminal investigation into Israeli Prime Minister Benjamin Netanyahu has had a decent amount of smoke, but very little fire. But with the revelation that the investigation now explicitly includes bribery and fraud, we may be starting to see some sparks. As The Times of Israel reports:

Israeli police on Thursday for the first time explicitly said that a number of corruption investigations involving Prime Minister Benjamin Netanyahu deal with “bribery, fraud and breach of trust,” stopping short of saying that the Israeli leader was directly suspected of these crimes, even as a gag order was imposed on details pertaining to the cases.

An Israeli court approved a police request to place a gag order on details surrounding a former Netanyahu aide, Ari Harow, turning state’s witnessas part of two criminal investigations where the prime minister is a key suspect.

“Case 2000,” as it has been dubbed by police, involves a suspected quid pro quo deal between Netanyahu and Yedioth Ahronoth publisher Arnon Mozes in which the two seemed to discuss an illicit agreement that would have seen the prime minister hobble a rival daily, the Sheldon Adelson-backed Israel Hayom, in return for more favorable coverage from Yedioth [….] The gag order also affects “Case 1000”, in which the prime minister and his wife are suspected of receiving illicit gifts from billionaire benefactors, most notably hundreds of thousands of shekels’ worth of cigars and champagne […]

Even if the gag order “stops short” of naming him as the target of the bribery and fraud investigation, the writing is on the wall: this is about Bibi. Netanyahu, who has been questioned multiple times in the investigation, has long insisted that these were just innocent gifts from wealthy supporters. Given how closely his success has been tied to the support of wealthy foreign backers, it would be a deep irony if those connections brought him down. In 2012, 90% of his campaign money came from the United States. The recorded discussion of a quid-pro-quo with the publisher of Yedioth Ahronoth might well have been enabled by the fact that Sheldon Adelson and Israel Hayom are themselves so pro-Netanyanu. Netanyahu plays this kind of hardball politics better than anyone else, but it would be easy to imagine that he might have crossed a line.

It’s too early to know whether or not this investigation will bring Netanyahu down, but his former aide potentially turning state’s witness is not a good sign for Israel’s second longest serving prime minister. Even if he emerges from the investigation without being charged, his rivals might seek to edge him out. The new leader of the Labor Party, Avi Gabbay, is a centrist businessman of Moroccan descent who might just be able to make the Israeli Left relevant again. Much of Netanyahu’s own political maneuvering has been designed to ward off pressure on his right from Education Minister Naftali Bennet and Defense Minister Avigdor Lieberman. Netanyahu has long succeeded in beating back his challengers, but these investigations raise serious doubts about whether he can hold out.

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Macron’s Popularity Plummets

Less than three months after his inauguration as President of France, Emmanuel Macron’s approval ratings have plunged precipitously, reports :

French President Emmanuel Macron heads into the summer break faced with falling popularity ratings after tough debates in parliament over labour reform and a public ethics law, a standoff with the military and cuts to housing assistance.

A YouGov poll published on Thursday showed 36 percent of voters held a favourable view of the 39-year-old, a fall of 7 points on the previous month and echoing the downward trend seen in other surveys.

To put Macron’s current numbers in perspective, recall that he enjoyed a 62 percent approval rating at the start of his term in mid-May. A 26-point plunge in three months would be bad news for any leader, but especially for Macron, whose political appeal rests in large part on his image as a centrist unifier. To add another bleak data point to the picture, Macron is already less popular in France than Donald Trump is in the United States, with the YouGov poll putting his approval one point lower than the U.S. President’s current average of 37 percent.

There is no shortage of scapegoats for Macron’s current predicament. To begin with, Macron’s support was always softer than many appreciated. To be sure, he pulled off an impressive underdog victory—but he benefitted immensely from record abstentions, major party scandals, and a broad second-round coalition aimed at stopping Marine Le Pen. After his election, it is no surprise that reluctant Macron voters have reverted to a position of skepticism, especially after a series of controversial reforms and self-inflicted wounds.

Macron has famously suggested that he would govern like the Roman god Jupiter, an authoritative but distant figure operating above the political fray. But the events of recent weeks have brought him down to earth. First in June came a series of high-profile resignations, after several of Macron’s ministers were ensnared in parliamentary investigations. Then in mid-July came Macron’s public spat with the head of the French armed forces, who ended up resigning in protest over Macron’s proposed budget cuts. Days later, there was the unpopular decision to reduce government spending on housing subsidies. And hovering over all these controversies has been the anticipation of Macron’s labor market reforms, which he is trying to push through over the objections of the Left and France’s powerful unions.

Macron’s current unpopularity may not necessarily derail those reforms; his party currently enjoys a large majority in Parliament, and the Senate just granted him the green light to fast-track his liberalization of the labor market. But Macron’s steadily declining support does offer a cautionary tale. If he fails to deliver economic growth but keeps pushing an unpopular reform agenda, he could face greater street resistance and eroding support, perhaps even within his party. Becoming France’s great centrist unifier is harder than it looks.

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Will Iran Retaliate Against U.S. Sanctions?

Yesterday President Donald Trump signed into law the Countering America’s Adversaries Through Sanctions Act, which includes actions against Iran’s ballistic missile program and the Islamic Revolutionary Guards (IRGC) and its affiliated entities. Coming at a time of political ferment in Iran, the new U.S. legislation provides an opportunity for hardliners and moderates to demonstrate their political bona fides as they calibrate their response. In recent weeks, senior IRGC commanders have threatened that a new round of U.S. sanctions would trigger a harsh response against American interests in the region. Thus, the key question before U.S. national security officials is whether an Iranian group will feel forced to respond to the sanctions by attacking U.S. forces directly or indirectly, further escalating tensions between the two countries.

This is not the first time that the United States has sanctioned Iran, of course. In 2011-12 the United States and the European Union increased pressure on Iran by imposing new sanctions on oil exports. Iran responded with naval drills, missile tests, and threats to close the Strait of Hormuz. Mohammad Reza Rahimi, then-Iranian Vice President, declared that if sanctions were imposed, “even one drop of oil cannot flow from the strait of Hormuz.”

The U.S. and allied governments replied by warning Iran against a closure and demonstrated their seriousness by deploying more forces to the Gulf. General Martin Dempsey, then-Chairman of the Joint Chiefs of Staff, assured Tehran that if it tried to close the Strait, the U.S. military would “take action to reopen it.” Tehran backed off, but Iranian officials warned that they might respond to additional sanctions by increasing nuclear enrichment to 90 percent for ship and submarine fuel. Separately, as U.S. officials later revealed, Iran began a campaign of cyber attacks against U.S. banks and companies.

U.S. and Iranian officials have come to loggerheads repeatedly since the signing of the Joint Comprehensive Plan of Action (JCPoA, also known as the “Iran deal”) in 2015. Iranian officials blamed the U.S. administration for the slow recovery of Iranian economy, and Supreme Leader Ali Khamenei directed President Hassan Rouhani to consider “any new sanction under any excuse” as a breach of the JCPoA.

Tensions rose after the U.S. Supreme Court confiscated almost $2 billion in Iranian assets in May 2016, and again when Congress extended the Iran Sanctions Act (ISA) last November, steps fully compliant with the JCPoA. But Khamenei proclaimed the renewal of ISA as a violation of the deal, and warned that Iran “will surely react to it.” Nevertheless, once again Tehran backed away from direct action, preferring instead to file complaints with the UN Security Council and act through JCPoA mechanisms.

In March 2017, Tehran responded in kind to U.S. designations against entities related to Iran’s missile program by sanctioning 15 U.S. firms. It was a symbolic move with the sole intention of saving face. In other words, Tehran has demonstrated that it still has a strong incentive to abide by the JCPoA, despite alleged U.S. “violations” of it.

A Different Reaction This Time?

President Hassan Rouhani, perceived by the West as a moderate, has already announced that the Majlis, the Iranian parliament, will pass a new law this week increasing funding for the missile program, IRGC, and the Qods Force. Declaring that it will take “any other step” necessary, the Rouhani government will likely support a new series of missile launches and drills, as well as other symbolic actions, such as sanctioning U.S. companies. Tehran already announced that it will submit a complaint to the JCPoA’s Joint Committee, which oversees the implementation of the deal.

Nevertheless, the Rouhani camp has maintained that Iran should not react hastily to U.S. aggression or fall into its “trap,” giving Washington an excuse to exit from the JCPoA. Iranian responses so far have indicated that Tehran will refrain from shaking the JCPoA at this point, fearing that it would only help Trump’s attempts to isolate Iran from the world. Instead, Tehran will probably play the role of the aggrieved party to convince European governments that the only way to save the deal is to push European businesses and banks to engage more deeply with the Islamic Republic.

The hardliners have been much more aggressive in their messaging. The Iranian Revolutionary Guard Corps (IRGC) has been involved in a domestic struggle with Rouhani since the May elections, and in recent weeks senior IRGC commanders have threatened that a new round of U.S. sanctions would trigger a harsh response against American interests in the region. IRGC head Ali Jafari and Iranian Armed Forces Chief of Staff Mohammad Bagheri both warned that new sanctions would put U.S. bases and forces within a “radius of 1,000 km from Iran” at risk. The two generals reiterated that Iran will not negotiate over its missile development program.

Can the IRGC climb down from these threats? Yes. But it is entirely possible that domestic political considerations or a perceived strategic need to demonstrate stronger deterrence with respect to the United States might compel the IRGC to push for broader retaliation, which could include taking direct action against American forces in the region. And Tehran has a variety of tools at its disposal to retaliate against the United States.

First, Iran could increase its harassment of U.S. naval forces in the Gulf, and even try to seize U.S. Navy boats as it did last year. In late July, Iranian ships came close to U.S. Navy vessels twice, forcing them to fire warning shots at the Iranians. The Pentagon revealed that there were 35 incidents of unsafe or unprofessional behavior by Iranian vessels in 2016, most in the first half of the year.

Second, Iran could detain more foreign citizens on charges of “espionage” as bargaining chips with the United States. This tactic has been used increasingly against American citizens over the last year, culminating in the imprisonment of American student Xiyue Wang just last month.

Third, Iran could use proxies in the region to hit U.S. forces and bases with mortars or IEDs. Such an attack would enable Tehran to make good on its threats while preserving deniability and avoiding escalation with the United States. Some proxies may balk at doing Iran’s bidding, but, given the wide range of groups supported by the Islamic Republic, it is likely that Tehran could find a radicalized splinter cell to do the job.

One of the most potent of these proxies is the Houthi rebels, who now control much of Yemen. Iran could ask the Houthis to shoot at U.S. naval forces in the Red Sea—as the Houthis did last year—or to target a U.S. base with an Iran-supplied missile. Such attacks would send a strong message throughout the region, even if the missiles missed their marks or were intercepted.

In any case, the IRGC will not act without the approval of Supreme Leader Ali Khamenei, who controls Iran’s national security portfolio. Khamenei has not responded yet to the new law, but he has repeatedly insisted—without foundation—that new congressional restrictions would violate the JCPoA. While he is known for his calculated and cautious approach to decision-making, Khamenei might be persuaded to support stronger retaliation if the IRGC can demonstrate that the risks of escalation are not high.

Iran has shown repeatedly that it is unlikely to take precipitous, direct action in response to U.S. sanctions. Tehran is likely to be even more risk-averse than usual when confronting the still-young Trump Administration, which it probably perceives, for good reason, to be more aggressive and unpredictable than its predecessor. Washington policymakers can further ensure that domestic and strategic considerations do not impel Tehran to act rashly by declaring clearly that the U.S. government will not tolerate aggression by the Iranian Republic or its proxies in the Gulf or elsewhere.

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Turkey to China: Your Security Is Ours

A week after a friendly naval visit to Istanbul from the Chinese navy, Turkey and China are continuing to cozy up, bonding over press censorship and promises of deepened security ties. :

Turkey regards China’s security as akin to its own and will move to stamp out any anti-China reports in its media, Turkish Foreign Minister Mevlut Cavusoglu said on Thursday, after meeting his Chinese counterpart Wang Yi. […]

“We take China’s security as our security,” Cavusoglu said, speaking through a Chinese translator during a joint news briefing with Wang in Beijing.

“We absolutely will not allow in Turkey any activities targeting or opposing China. Additionally, we will take measures to eliminate any media reports targeting China,” he added, but did not give details.

On one level, this is just the latest case of Turkey thumbing its nose at the West. No other NATO ally would equate its security interests with China’s, and no other supposed EU aspirant would openly tout its authoritarian control over the press. But for Turkey, this is all part of the game: as an alienated Ankara drifts ever further away from Europe, it continues to publicly demonstrate that it is not beholden to Western institutions or values, as Erdogan courts opportunistic allies and participates in military exercises with NATO’s enemies.

But Ankara’s overtures to Beijing may be more than idle flirtation or empty anti-Western posturing. Turkey’s explicit alignment with Chinese security interests suggests a new understanding between the two powers. Historically, Sino-Turkish relations have been clouded by disagreements over the Uighurs, the Turkic ethnic minority who have inspired a separatist movement in China’s Xinjiang province. Many Uighurs fleeing repression in China have found refuge in Turkey; others have passed through Turkey to join up with militants in Syria and Iraq. The Chinese have long urged Ankara to take a tougher stance on Uighurs, and they may soon get their wish: with his promises of greater anti-terrorism cooperation and his vow to suppress anti-China activities within Turkey, the Turkish Foreign Minister seems to be indicating a crackdown on Uighurs in order to appease China.

For Turkey, that may be a small price to pay given the benefits it expects from a better relationship with China. Ankara has shown a keen interest in China’s Belt and Road Initiative, enticed by prospects of a high-speed railway line and a nuclear plant, among other projects that China has pledged to build in Turkey. But Beijing has hinted that such projects are in part conditional on a more China-friendly security policy. Chinese President Xi Jinping suggested as much in a meeting with Erdogan at the Belt and Road Summit in May: “In order to promote even greater development of relations,” Xi told Erdogan, “China and Turkey must respect and give consideration to each other’s core concerns, and deepen security and counter-terrorism cooperation.”

In other words, Turkey may now be singing China’s tune on security issues in the hopes of a more favorable economic relationship. On the one hand, that suggests that the Turkey-China relationship rests on weak foundations, a transactional fair-weather friendship rather than a deeply rooted alliance. On the other hand, it suggests that Ankara is willing to substantially change its policies in order to achieve warmer ties with Beijing. And at a time when Turkey is showing for its estranged Western allies, that willingness to accommodate China is a troubling sign indeed.

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Slouching Toward Bethlehem

The rocky road of Donald Trump’s presidency has not been smoothed by his recent behavior. The chief executive’s inclination to bludgeon even cabinet members with a hammer and tongs makes the White House seem weak, rather than strong. And choosing a Director of Communications who was a smart-mouthed neighborhood guy would dampen the loyalty even of serious people seeking to help a faltering Administration.

One clear sign of constitutional distress is when the President and his advisers begin to flirt with the pardon power—a safety valve included by the Founding Fathers to forgive actions taken outside the law. Article II, section 2 of the U.S. Constitution provides that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This power may seem tempting, sufficient to rescue any eager staffer who exceeds the limits of the law, all the more when the President has asked him to do so.

But self-dealing may also have a constitutional limit. Could a complicit President pardon errant members of his own cabinet or White House staffers who acted under his specific instructions? Could he pardon members of his own family? Could he pardon himself?

The puzzle of the pardon power is intertwined with issues of integrity. What would happen, for example, if serious questions were raised and conclusions drawn about the legality of the Trump family’s business affairs in Russia? Could the tip of a pardon pen really be used to avoid any liability?

Beyond the pardon power, could the President, as the chief law enforcement official, control investigations of his own transactions? Do we really want to entertain the resurrection of the Special Prosecutor Act that flourished under Jimmy Carter?

The American Republic has occasionally faced troublesome questions of White House and presidential misbehavior, not least in the Nixon and Clinton Administrations. Some useful precedents were provided by these traumas and solutions.

The modern gold standard for integrity was carved into the architecture of the Department of Justice by the staunch insistence of a woman whose name should be remembered. Mary Lawton died at the age of 58 in 1993, but her reputation is still pound sterling among lawyers and politicians in Washington.

This plain-spoken woman was ranked first in her class at Georgetown Law School and served as a senior career official in the Justice Department for 33 years, where she served in the Office of Legal Counsel as a Deputy Assistant Attorney General and later as the Chief Counsel of the Office of Information Policy and Review, now the National Security Division. She was widely admired by leaders of both political parties for keen intelligence and no-nonsense frankness. Attorney General Griffin Bell simply adored her, as did Antonin Scalia. She was the Justice Department’s expert on privacy, and a moving force in the passage of the Foreign Intelligence Surveillance Act. She also served as general counsel for the Corporation for Public Broadcasting.

But it was Mary Lawton’s laser-beam conclusions on the pardon power that may matter most. The notorious “plumbers” burglary at Democratic Party Headquarters in the Watergate Complex on June 17, 1972, was an embarrassment to both Richard Nixon and the Republican Party. As a “second-rate burglary,” it implicated members of the White House staff in their clumsy attempt to get inside information on the Democrats’ electoral strategy. It boosted the circulation of the Washington Post as two young reporters unraveled the scandal through gumshoe investigation and leaks from inside the Administration.

Faced with the threat of impeachment and removal from office, Richard Nixon resigned the presidency on August 9, 1974. It took a genuinely good man—the oft under-appreciated Gerald Ford serving as Vice President—to end the country’s misery through a pardon of President Richard Nixon on September 8, 1974.

In the midst of this catastrophe for good government, it was the venerable Mary Lawton, as the Acting Assistant Attorney General for the Office of Legal Counsel who helped to contain the escalating crisis. She was asked to advise the Deputy Attorney General at the time, Laurence Silberman, on the constitutional question of whether Richard Nixon could use his Presidential powers in order to pardon himself and thus avoid potential criminal liability.

Lawton’s conclusion was plain-spun, based on the history of the common law. In the famous and celebrated common-law precedent of Bushel’s Case, Lord Edward Coke advised the King of England that no person—including the king—could be the judge of his own case. The nature of law itself requires impartiality and objectivity.

Hence, Lawton opined, on “the question whether the President can pardon himself…it would seem that the question should be answered in the negative.” This is true because of the “fundamental rule that no one may be a judge in his own case.”

This is a matter that every President must keep in mind. If he or she is thought to have deliberately breached the fundamental legal guarantees of the Constitution and the common law, the matter passes to the House for consideration of articles of impeachment and to the Senate for trial. An issue of this solemnity will be understood by a man such as General John Kelly. One can be glad that Anthony Scaramucci was only a passing thought.

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China and India Won’t Back Down In Border Standoff

Over six weeks after Chinese and Indian troops first squared off along the trijunction with Bhutan, there is no end in sight to their simmering border dispute. And with a new official statement released today, Beijing has made it clear that it will give no ground, demanding that India unconditionally withdraw its troops. From The Hindu:

A detailed statement from the Chinese foreign ministry on Wednesday has said that India may not only have to scale down its forces in Doklam, but also pull back all its troops to end the military standoff in the area.

“As of the end of July, there were still over 40 Indian border troops and one bulldozer illegally staying in the Chinese territory,” the foreign ministry said, adding that Indian troops in the Doklam or Dong Lang area peaked to 400 personnel at one point. […]

The Chinese side reiterated that India must unconditionally pull back its troops from the stand-off area. “The incident took place on the Chinese side of the delimited boundary. India should immediately and unconditionally withdraw its trespassing border troops back to the Indian side of the boundary. This is a prerequisite and basis for resolving the incident.”

The foreign ministry warned that “no country should ever underestimate the resolve of the Chinese government and people to defend China’s territorial sovereignty.” It asserted that “China will take all necessary measures to safeguard its legitimate and lawful rights and interests.”

The full Chinese statement is an extended exercise in finger-pointing and self-justification, laying the blame for the standoff entirely at India’s feet while summarizing China’s historical claims to the disputed territory. According to the Chinese, India was the instigator from the start, illegally blocking China’s construction of a road on its own territory and improperly inserting itself into the conflict on behalf of Bhutan. Beijing even claims that it had informed New Delhi about the construction of the road beforehand, to assuage any concerns—but that Indian troops illegally crossed the border to block the road anyway.

Needless to say, this version of events contradicts the Indian account, which depicts China as the aggressor intruding on Bhutanese territory. The two sides cannot even agree on where the dispute currently stands: after China’s statement claimed that there were only 40 Indian troops remaining in the Doklam area, Indian government sources quickly denied any troop reductions, insisting that the army continues to stand up to China in its original numbers.

This game of he-said she-said shows no signs of ending any time soon, as each side casts aspersions to blame the other for inciting the dispute. But the conflicting statements do tell us something about how much both sides have at stake here—and why neither one is willing to back down.

For China, this is a clear test of credibility. With Beijing asserting in no uncertain terms that it is building within its own territory, any concession to India would represent an embarrassing capitulation. China is not prepared to lose face and imply that India has a veto over China’s boundary claims—especially not when President Xi is determined to project an image of Chinese strength ahead of of this fall’s Party Congress.

For India, meanwhile, the crux of the dispute is about strategic security. India’s strenuous opposition to the Chinese road is rooted in its own geographic vulnerability. Indian planners have long feared a scenario where the Chinese could cut off the Siliguri Corridor, the narrow “Chicken’s Neck” connecting India’s northeastern regions with the rest of the country. China’s construction of a road in close proximity to that corridor makes that choke-off scenario all the more likely, and India has a vital interest in forestalling that outcome.

Given those stakes, neither side has any incentive to back down; in fact, there are some troubling signs that the dispute could escalate or spill over elsewhere. In recent days, reports have emerged that China is stirring up trouble along another border area in Himachal Pradesh, with locals reporting an increased Chinese helicopter presence and accelerated efforts at road-building across the border. For now, those efforts are a sideshow to the more serious dispute in Doklam, but they do suggest that China is willing to stir up tensions with India on multiple fronts. Meanwhile, the war of words over the Doklam standoff is only getting worse, with Chinese media (and the occasional Chinese official) invoking the memory of the 1962 Sino-Indian border war to intimidate India.

Special representatives for India and China remain engaged in bilateral talks to prevent that outcome, but so far there has been no breakthrough, and the public posturing of the two countries suggests a hardening of positions, not a mutual move toward compromise. Perhaps that means the standoff will simply fester at the current level of high tension, rather than breaking out into a shooting war. Regardless, it is more clear than ever that this is not the kind of minor border flare-up that periodically erupts between China and India. It is a sustained, dangerous, and high-stakes game of chicken between two growing geopolitical rivals—and neither side looks willing to blink.

The post China and India Won’t Back Down In Border Standoff appeared first on The American Interest.

When Immigration and Affirmative Action Collide

In the past week, the Trump administration threw its weight behind two frontal assaults on flagship liberal social policies. First, as the New York Times reported on Tuesday, Jeff Sessions’ Justice Department will scrutinize affirmative action in higher education with the aim of gutting policies that it sees as discriminating against white or Asian applicants. Second, Trump gave a press conference endorsing a Senate bill, co-sponsored by Senators Tom Cotton of Arkansas and David Perdue of Georgia, that would significantly reduce legal immigration into the United States.

The media has mostly treated these two stories as distinct and unrelated, except insofar as they both represent the Trump Administration’s consistently right-wing approach to racial issues. In reality, the relationship goes much deeper than that. Mass immigration, and America’s proliferating racial and ethnic categories generally, represent the most vexing issue for proponents of race-based affirmative action, which was of course invented in a far less diverse country and aimed specifically at remedying the country’s enslavement and oppression of native blacks, but now arguably discriminates against a different minority group. Meanwhile, affirmative action for ethnic minorities likely heightens white resistance to mass immigration due to the perception that newcomers won’t only compete with natives for finite resources but will get a head start in that competition. If affirmative action goes down, it will be in no small part due to the influence of mass immigration; if immigration levels are slashed, the pervasiveness of affirmative action will probably have played a role.

In his 2003 book Collision Course: The Strange Convergence of Affirmative Action and Immigration Policy in America, the late USC historian Hugh Davis Graham traced the complicated and overlapping history of these two hot-button social policies in the wake of the 1960s rights revolutions that birthed them. Initially, immigration reform and affirmative action seemed philosophically consistent with one another: Equality under the law meant that the U.S. shouldn’t choose which immigrants to admit based on their ethnicity; it also meant blacks who only just forced Jim Crow’s boot off their necks deserved help getting back on their feet.

The new immigration and affirmative action policies contributed to a small-scale political realignment. “Before 1960, the nation’s leading African-American organizations (such as the NAACP) and labor organizations (such as the AFL-CIO) … opposed large-scale immigration as threatening to native American wage levels and job security,” Graham writes. “After 1970, however, these positions softened, partly because the growth of affirmative action programs with minority preferences broadened the coalition base for protected classes. Increasingly during the 1980s and 1990s, the civil rights and immigration expansionist coalitions meshed their coalition lobbying.” In other words, blacks made common cause with ethnic immigration lobbies not only because of a shared abstract commitment to anti-racism but because they felt it would strengthen their bargaining position in a system where all nonwhites could benefit from affirmative action.

For the first decade-and-a-half after the Civil Rights Act—while racial preferences were seen as primarily a benefit for blacks, and the post-1965 immigration wave hadn’t yet significantly altered the country’s demographics—the two programs coexisted without conflict. But it wasn’t long before contradictions began to emerge. “Mass immigration brought increasing pressures on both the logic and structures of affirmative action,” Graham writes. Stories (not necessarily representative, of course) surfaced of wealthy Cuban-Floridians winning government minority set-asides for their lucrative businesses. “During the 1990s, controversy over immigration levels … stimulated fresh debate over the definition of racial and ethnic minorities and the reasons and consequences for awarding government benefits on the basis of ancestry.” Especially when the economy was weak, conservative arguments that such programs were practically unfair and theoretically impossible to justify got more and more traction.

What will be the final outcome of the immigration-affirmative action clash? Graham’s assessment in 2003 was that “from this three-decade process, immigration emerged greatly strengthened and affirmative action significantly, perhaps even mortally weakened.” Affirmative action is perhaps even more vulnerable today than it was 14 years ago, especially because a fissure has now emerged not just between immigrants and native whites, but within the increasingly large immigrant community: Asian people have mostly lost their claim to disadvantaged minority status over the past two decades, and the Asian community is spearheading lawsuits against campus affirmative action programs that likely reduce their representation in the Ivy League.

Expansionist immigration policy, too, looks weaker than it did in the early 21st century. After all, Donald Trump is President of the United States. And affirmative action has probably played a role in fueling anti-immigration sentiment. Recent polls have shown an uptick in the number of whites who say they are subject to discrimination. Trump supporters are overwhelmingly more likely to say whites face discrimination. People can argue at length about whether and how many whites actually face discrimination, but regardless of the truth of the matter, it seems likely that affirmative action for minorities contributes to this sense of grievance. If fewer whites felt that the system were stacked against them, they would likely be less reluctant to sharing in America’s bounty with people from other countries.

It’s almost certainly a coincidence that the Cotton-Perdue immigration restriction bill was unveiled the day after news broke about Sessions’ anti-affirmative action push. But the social forces and history that made both of these initiatives possible are deeply intertwined. The case against affirmative action was strengthened by decades of immigration and blurring of racial and ethnic categories. Meanwhile, the case for immigration restriction was bolstered by an affirmative action regime that accentuated white skepticism toward newcomers.

My view is that affirmative action may well be abused by some campus administrations, and that lawsuits challenging it should be taken seriously, but that some form of “soft” affirmative action, especially for non-immigrant African Americans, still has value. And I am in favor of restricting less-skilled legal immigration, although I think the Cotton-Perdue bill is too draconian in its current form.

But most of all, I think that liberals who are interested in preserving affirmative action and immigration at all ought to consider stepping back from maximalist—”you’re with us or you’re a racist”—views on these questions. Because the underlying social fact is that mass immigration and widespread affirmative action are deeply in tension, and ultimately set to destroy one another.

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Doc in a Box

If the humans can’t solve health care, maybe the machines can? The rise of telemedicine is one of the most promising new developments on the health care horizon. These technologies, which allow patients to contact doctors remotely, stand to make health care both cheaper and more convenient. The latest iteration comes from Great Britain, where some pharmacies are introducing a service called MedicSpot. This is a “kiosk” that holds a computer screen and basic measuring tools like a blood pressure cuff, a thermometer, and a camera. Step inside, do the tests, let the doctor peer at you virtually, and you may even walk out with a prescription right then. The whole experience takes about 10-15 minutes.

For another fascinating example of telemedicine, see a recent article about medical care in space. Sometimes there isn’t a doctor on board the International Space Station, so the crew has to rely on, you guessed it, telemedicine. In one incident, the crew had to perform an ultrasound on an astronaut suffering from knee pain, communicating with a radiologist back on earth (fascinatingly, an ultrasound is the only medical visualization machine that can be transported into space). Of course, astronauts are both highly trained and intensively monitored, unlike most people, but surely the benefits of telemedicine apply whether the distance is between town and country or between earth and orbit.

Here on terra firma, telemedicine isn’t making much progress in the U.S. Congress. Two representatives brought in a bill this past week to reduce regulations on telemedical services under Medicare, assuaging concerns of cost increases by mandating that the Centers for Medicare and Medicaid Services confirm that each service is a savings. Of course, the representatives hold out little hope that it will be incorporated into any major legislation. On a more optimistic note, Politico reports that the nominee for HHS’s newly created Assistant Secretary for Mental Health position praised telemedicine in her confirmation hearing on Tuesday.

There are reasons to be somewhat cautious about telemedicine; there is the privacy issue, and also worries that it might eventually lead to a two-tiered medical system, in which wealthier patients with better coverage see doctors while others only get access via their screens. These kinds of concerns can (and obviously should) be addressed, but the technology must not be stifled. In a medical system that’s too costly and crowded, telemedicine could ease the burdens on providers, and the costs in both time and money for patients. Let’s welcome the doctor boxes!

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America’s Biggest Energy Problem

The number of new American nuclear reactors under construction fell by half this week, after a project in South Carolina was abandoned less than two-fifths of the way through. The project, owned by a pair of utilities, was shelved after running into numerous delays and cost overruns—at last check, the pair of reactors under construction were expected to cost up to $25 billion, a full $13.5 billion over the initial budget.

You could paint this as a story of the problems with big construction projects, because this one has them all: an abundance of difficult-to-navigate federal red tape (there understandably to ensure the reactors could safely operate); spiraling construction costs; changing market conditions (cheap, abundant shale gas has lessened demand for nuclear power since this project was first proposed); changing technical requirements; and the unpredictable but certain issues that arise when constructing something new (these reactors were of a new, safer design). There’s plenty to delve into there, and Brad Plumer provides a nice survey of those aforementioned issues for the New York Times.

But there are deeper issues here, both with the state of nuclear energy in the United States, and what that means for American emissions and energy security. Let’s start with the U.S. nuclear power industry: some 99 reactors supply nearly 20 percent of our electricity. Though routine maintenance and the occasional unforeseen issue might produce reactor outages, in total the nuclear wedge of our energy pie is as reliable as power sources come. It’s also shrinking, as an entire generation of reactors nears the end of its life cycle. Over the past four years, five reactors have come offline, and that’s just the tip of the iceberg—six more are expected to shut down by 2025, and in the decades beyond dozens more will be forced to follow suit as a result of their age.

Recent reactor shut-downs have by and large occurred due to political pressure and a skeptical public. Like any power source, nuclear plants run afoul of NIMBY concerns, though the apocalyptic threat of a nuclear catastrophe looms larger than, say, the impact on the beauty of a pastoral landscape that might move a community to block a wind farm. Here, not enough work is being done to effectively communicate a surprising but eminently salient fact in the to-nuclear-or-not-to-nuclear debate: this power source is the safest there is. The Oxford-affiliated Our World In Data recently asked the question, “If we want to produce energy with the lowest negative health impacts, which source of energy should we choose?” Its answer: nuclear power. Per unit of power generated, nuclear power produced far fewer deaths—from air pollution or accidents—than any other baseload energy source.

Nuclear accidents like Chernobyl or Fukushima get massive amounts of media attention for understandable reasons, but like many other newsworthy items today, that consideration doesn’t correlate with the reality of the industry, which in this case is this: nuclear power is a safe and consistent energy option, and is in fact empirically the safest baseload source we have.

The horrors of a nuclear meltdown aren’t the only thing hurting nuclear power in public polls, though. The modern environmental movement was born out of a deep skepticism of the energy source, and it has worked diligently and effectively to stoke fears of nuclear power and strengthen the NIMBYist impulse in communities adjacent to reactors. But as climate change continues its ascendancy into becoming the most dominant environmental issue of the day, many greens are starting to change their minds on nuclear power, choosing to put aside their fears in favor of the extraordinary work nuclear has done in the U.S. and around the world to reduce emissions.

Nuclear power is, next to hydroelectricity, the only source of consistent zero-emissions electricity, and that necessarily makes it the backbone of any sort of sustainable future energy mix. To put it bluntly, you cannot in good conscience advocate for a low-carbon future without including nuclear power in your plans. It’s that important.

When America’s reactors come offline, they aren’t being replaced by wind and solar power, but instead by coal and natural gas. That’s because, unlike wind and solar, these fossil fuels can supply electricity 24/7. Each shuttered nuclear reactor therefore means a spike in American emissions, which makes our aging nuclear fleet not only a national energy security concern, but an environmental one as well.

Unfortunately, this isn’t a problem that can be solved by simply convincing the public that nuclear is, in fact, in its best interest. That would certainly help—many of the reactors slated for decommissioning could still run for years if not decades yet, if they had public support—but long-term, age is the enemy of this industry. A new slate of nuclear technologies beckons on the horizon, but even if we broke ground on projects incorporating some of these options (like thorium or molten salt reactors), it would take many years before these reactors were capable of supplying power. As it so happens, this new generation still hasn’t quite moved out of the laboratory yet, so it seems we must wait even longer to even break ground.

In that context, our best hope for a medium-term fix to our aging nuclear problem are small, modular reactors. These are another recent breakthrough that seem closer to reality: imagine powering an entire neighborhood with an energy source that could be loaded onto the back of a semi-truck. These smaller nuclear reactors would involve smaller capital costs and shorter construction times, and could be deployed in more places to tailor to shifts in energy demand. On the downside, the fact that their smaller size necessitates more of them would produce increased security concerns—each and every one of these modular reactors would need staunch defense from potential terrorist attacks.

There are no easy solutions, but a good first step is admitting that we, as a country, have a serious problem. This week’s news out of South Carolina is an ominous portent for the future of our nuclear power industry, and it’s bad for our emissions and our energy security, to boot.

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