The Strategy the Democrats Should Have Used Against Alito

A Two-Pronged Strategy for the Alito Hearing


When Judge Alito appears before the Judiciary Committee in January, Senate Democrats, no doubt, will question him about his Appellate opinions, old memos he authored, and his understanding of various Supreme Court precedents. From his testimony and the paper record, they will attempt to glean his vision of the Constitution and if possible, to extrapolate Alito’s votes on future decisions vital to them and their constituencies.
But if the Robert hearing serves as any guide, Democratic Senators can expect their considered probing to meet with evasion, stonewalling, circumlocution, and platitude. Democrats will bridle and thrust; Judge Alito will smile and parry.
Q: “Why did you uphold spousal notification in Casey?”
A: “Well, given the ambiguity following Webster, I was only trying to apply the common understanding of existing precedent.”
Q: “Would you overrule Roe?”
A: “ I would honor the principle of stare decisis and not allow my personal views to influence my decision.”
Q: “Does the Constitution allow the State to implant a tracking device in convicted sex offenders to monitor their whereabouts upon release?”
A: “Well, I can’t answer that question, Senator, because the answer might tarnish the appearance of impartiality should the matter ever arise before the Court.”

Senator Biden has bemoaned this “Kabuki Dance”, the Senator, with his characteristic eloquence, conceding his frustration and groping for an alternative plan of attack.
The following memo will recommend one. In it, I propose a two-pronged strategy for engaging Alito on the né plus ultra of Constitutional controversy and an issue dear to the Senator’s heart-- the right to privacy and the doctrine of substantive due process.
I. Introduction/Summary
First, I urge the Senator to resume the inquiry he began in his final turn at questioning Justice Roberts but didn’t have sufficient time to complete: i.e., the case of Michael H v. Gerald D, 491 U.S. 122 (1989) and the methodology a Justice employs to define the “liberty” the Due Process Clause protects against state intrusion . For as the Senator has intuited—if not, said so explicitly-- Michael H v Gerald D distinguishes itself among substantive due process precedents for the informative and far-reaching methodological dispute between Scalia and Brennan at its core. A dispute of value for the Alito hearings because it suggests a series of questions, at once, telling enough to project whether the nominee would be a Scalia/Thomas reactionary or an O’Connor/Kennedy conservative and sufficiently abstract to obviate Justice Robert’s dodge that doing so could prejudice future cases before the Court
The strategy’s second prong, by contrast, would capitalize on whatever equivocations the first prong cannot avert and use them to unnerve the social conservatives responsible for Mier’s withdrawal and Alito’s nomination. It would do by exploiting a corollary but often overlooked truth about the doctrine of substantive due process. Namely, that the same liberty the Due Process Clause extends contraception, abortion, and sexual privacy also protects from State encroachment those interests social conservatives profess to cherish—the family, marriage, parenting, and procreation.

See Pierce v. Society of Sisters (liberty of parents to direct upbringing of children), Meyer v Nebraska (liberty to control child’s education); Moore v. City of E.Cleveland (liberty of blood relatives to live together); Loving v. Virginia (right to marry); Skinner v. Oklahoma (right to reproduce); Stanley v Illinois (unwed father’s liberty interest in child); Michael H v. Gerald D. (sanctity of “unitary” family). See also Casey v. Planned Parenthood, 505 U.S. 833, 849, 112 S.Ct. 2791, 2806 (1992)(Roe originated from both (i) liberty protecting “family, intimate relationships, and decision whether to beget or to bear a child”; and (ii) liberty protecting personal autonomy and bodily integrity))

After all, it is the Religious Right which relies upon the “zone of liberty” surrounding the family to defend home schooling; and, one assumes, the principle to which social conservatives refer in asserting that population controls violate the Constitutional order. See First Things, “Evangelicals & Catholics Together” (1994), “We will do all in our power to resist proposals for…population control that… betray the moral truths of our constitutional order.”

The second prong, in other words, seeks to maneuver Alito into a Hobson’s choice. Either he must declare whether hypothetical laws enacting population controls (or forbidding home schooling) violate the Due Process Clause. Or alternatively, should he decline to express an opinion one way or the other, he will have withheld sanction to rights the Religious Right hold sacred. Either alternative profits the Democrats.
I explain each prong in further detail below.

II. PRONG ONE: MICHAEL H v GERALD D., 491 U.S. 122 (1989)If you are familiar with this case’s facts and holding, skip to Section B.

A. Facts and Holding
Facts: Plaintiff Michael H., the natural father of Victoria, challenged a California statute which terminated his parental rights because at the time his daughter was born, Victoria's mother, Carole, was married to (and living with) Defendant Gerald D.

Michael submitted blood tests that established him, with 98% certitude, as Victoria’s father. Michael and Victoria’s mother, Carole, both acknowledged Michael as the father. And finally, Michael treated Victoria as his daughter, supported her financially, and even lived with her for a time. Nonetheless, California courts, citing the statute, decided Gerald alone was the father and denied Michael visitation rights and all the other constitutionally protected privileges and liberties inherent to parenthood: (i)) the right to visit his daughter; (ii) the right to have custody over her; (iii) the right to rear and care for her; (iv) the right to direct her education and healthcare; and (v) the right to instill moral standards, religious beliefs, etc.

Michael challenged the statute’s constitutionality, citing the substantive due process precedents of Stanley, Quillon, Caban, & Lehr for the principle that an unwed father with (i) a biological link and (ii) substantial parental relationship with his child earns the Constitutional rights accorded parenthood. And that California’s summary annulment of his parental status via statute violated the Due Process Clause accordingly.
Holding: A 5-4 majority, with Justice Scalia writing the opinion, rejected Michael’s argument, upholding the constitutionality of CA's statute and the state court’s holding.

That is, Michael, Victoria’s biological father, with whom Michael lived, with whom Michael maintained a relationship, and to whom Michael provided financial support was deemed NOT to have a parental relationship the constitution protects. The Due Process Clause’s guarantee of liberty, in the majority’s reading, only safeguards relationships that develop within the “unitary family.” California then-- blood tests to the contrary notwithstanding-- could decree that Gerald, not Michael, was Victoria’s father and deny Michael any right to see, rear, or care for her.

B. Michael H. v Gerald D: A Rosetta Stone
Michael H. v Gerald D produced a plurality opinion, two concurring opinions, and two dissents. However, for our purposes, Scalia’s decision for the plurality and Brennan’s dissent are the keys. For buried in their arcane debate about how to interpret the “liberty” of the Due Process Clause lies a Rosetta stone to the Court’s ideological schism on privacy rights and a legend both for divining Altio’s likely position along it and for predicting his votes in future right to privacy cases. A touchstone, furthermore, of infinite value for the confirmation hearing because it implicates method, and to questions of method, Roberts’ brand of evasion, pretext, and bromide do not respond.

At its crux, Brennan and Scalia’s argument concerns how tradition informs and defines the “liberty” the Due Process Clause safeguards from State encroachment. Both acknowledge that the State cannot abridge fundamental liberties “deeply rooted in the country’s traditions”. Their disagreement stems from how the Court goes about identifying these traditions; and how, once identified, the tradition determines the asserted right’s scope and application. How does a Justice, in other words, decide whether “liberty” means “the right to beget children” (or “the right not to”); “the right to raise them”; “the right to refuse medical treatment;” or as Senator Biden framed it, “the right to engage in a consensual act in the bedroom with one’s [spouse]” (See Biden, What’s at Stake: The Constitution and the Supreme Court, July 29, 2005)

Scalia proposes a methodology of seductive simplicity. How do we determine whether a given liberty is “fundamental” and/or “deeply rooted in the nation’s traditions”? Easy, look at the common law and the nation’s practices at the time the Founders ratified the Fourteenth Amendment. Do biological fathers like Michael H. have constitutional rights to offspring conceived through cuckoldry, for example? Well examination of Lord Blackstone’s Commentaries of 1836 reveals that common law enshrined a presumption in favor of legitimate children and against so-called “adulterine bastards”. That is, when the states ratified the 14th amendment, the common law considered a child born into an existing marriage the offspring of the husband and the wife, regardless of who sired him. Ergo, an “adulterous natural father’s” parental rights are not a deeply rooted national tradition, and the State can withhold them or standing to establish them, as California does. Scalia, in short, does Faulkner one better: the past not only is not passed; it is present. The common law of history, evidently, provides the index of the nation’s fundamental liberties now and forever. See also Cruzan, 110 S.Ct 2841 (1990)(Scalia, concurring)(common law prohibition against suicide means right to suicide not fundamental liberty); Casey, 505 U.S. 833, 984 112 S.Ct 2805, 2876 (1992)(state can proscribe abortion, sodomy, polygamy, incest because throughout American history states have criminalized these practices)(Scalia, dissenting).

To Brennan, in contrast, ascertaining whether a given liberty is “fundamental” or “deeply rooted in the nation’s traditions” requires a more nuanced and thoroughgoing examination. Brennan’s inquiry entails scrutiny of existing precedent, changing social norms, the countervailing State regulation’s expressed intent, and a Justice’s reasoned judgment. For example, do Michael H and his daughter’s relationship--biological fatherhood plus a parental role-- approximate the parental rights the Court previously has held to deserve constitutionally protection (e.g., the unwed fathers in Stanley, Lehr, Caban, etc.)? Has society altered its views sufficiently to vitiate the State’s original interest in minimizing illegitimacy’s stigma? Is California’s expressed interest still valid in a society where blood tests now can determine paternity with 99.8% certainty? Is the curtailment of an “adulterous natural father’s” parental rights the most narrowly tailored means for California to promote stable marital relations?


C. How the Debate Offers a Litmus Test
What’s significant about the Scalia-Brennan debate it how it has shaped the outcome of cases that have come in its wake and marked the Court’s ideological divide. For whether a Justice accepts or rejects Scalia’s method has proven a reliable barometer both for predicting his/her substantive due process jurisprudence and his place along the conservative-reactionary continuum. If a Justice endorses Scalia’s method, he/she will be less apt to extend “the right to privacy” to newly asserted liberties or to show fealty to stare decisis, for that matter. And furthermore, he/she will be more inclined, in contrast, both to overturn substantive due process precedents like Roe/Casey, however old or established, and to align himself with the activist conservative wing (Scalia-Thomas) against the wing of conservative restraint (O’Connor-Kennedy-Souter).

This methodological touchstone first manifested itself in Michael H v Gerald D. Justices O’Connor and Kennedy concurred in the case’s result but refused to sanction Justice Scalia’s method. Id. at 130-1, 2346-7(“I concur in all but Footnote 6 of Justice Scalia’s opinion. This footnote sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause… that may be somewhat inconsistent with our past precedents”)

Then, in Planned Parenthood v. Casey, O’Connor and Kennedy (and Souter), in reaffirming Roe, repudiated Scalia’s approach explicitly. “Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” Planned Parenthood v. Casey, 505 U.S. 833, 848, 112 S.Ct.2791, 2805(1992)(emphasis added).

Justice Kennedy and Justice Souter, in the ensuing decade, proceeded to reject Scalia’s method explicitly in separate cases. Justice Thomas, in contrast, championed Scalia’s method, either by signing Scalia’s opinion or by echoing it in his own.

Compare Souter in Washington v.Glucksberg, 521 U.S. 702, 765, 117 S.Ct 2258, 2281-2 (1997)(“My understanding of [substantive due process] avoids… equating reasonableness with past practice described at the most specific level”); Kennedy in County of Sacramento, 523 U.S. 833, 857, 118 S.Ct 1708 (1998)(“History and tradition are the starting points but not in all cases the ending points of the substantive due process inquiry”) and Kennedy in Lawrence v. Texas, 539 U.S. 558, 566-71, 123 S.Ct 2472, 2478 -80(2003)(Bowers’ Court noted that for centuries powerful voice condemned homosexual conduct but this does not answer question because liberty interest at stake is broader) with Thomas in Chicago v. Morales, 527 U.S. 41, 102-3 (1999)(Thomas, J., dissenting) (no freedom to loiter because “laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest”); and Thomas in Troxel v Granville, 530 U.S. 57, 80 120 S.Ct 2054, 2067-8 (2000)(Thomas, J. concurring)(“Neither party has argued that our substantive due process cases were wrongly decided and the original understanding of the Due Process Clauses precludes judicial enforcement of un-enumerated rights under that provision… I understand the plurality to leave the resolution of that issue for another day.”)

E. Questions the Debate Suggests For Alito
This debate over method accordingly suggests a potentially very telling line of inquiry for the Alito hearing. Because as I contended above, questions about method are sufficiently theoretical to foreclose Roberts’ equivocations. They don’t implicate current cases or controversies, and a promise to respect “stare decisis” affords no answer.
• Does historical common law determine whether an asserted liberty qualifies for protection under the Due Process Clause? If so, how and to what degree? Should it act as the definitive arbiter? What if the common law prohibiting a particular historical practice (like abortion) wasn’t uniform at the time of the 14th amendment’s ratification? If it indeed has changed since and a departure at a later juncture is evident; does the common law at the time of the 14th Amendment’s ratification trump the common law of today? How should the evolution inform the Court’s assessment of the liberty interest asserted? Can the Court ever override a long-standing common law prohibition? For example, could the State sterilize its citizens because there’s a historical record of legislation authorizing such? See Indiana Sharp Act (1907) (enabling “state reform officials” to sterilize “confirmed” criminals) Alternatively, is there ever an instance, for example, in which an individual liberty asserted—say, right to refuse resuscitation (as expressed in living will)—warrants Court protection notwithstanding long-standing State law criminalizing suicide? [NOTE: The questions here do not ask the nominee for the decision he would render but rather the method he would employ in reaching his result?]

• What happens if there is no history one way or the other about the practice at issue? That is to say, what if unlike criminal prohibitions against sodomy, loitering, or suicide, the right asserted implicates some entirely new technology about which no tradition either way can exist? For example, what if a state outlaws artificial insemination? How does a Justice assess if there is right to artificial or medically assisted procreation when history, defined at the most specific level gives no guidance? How does this silence affect a Justice’s determination of whether it is a deeply rooted tradition?

• Can a Justice ever advert to changing social mores, new case law, and evolving conceptions of liberty in deciding whether that liberty is “fundamental” or “deeply rooted in the nation’s tradition”? Can a Justice, in assessing a hypothetical asserted “right to medically assisted procreation,” take note of statistics that show that in the U.S. artificial insemination begets 20,000 to 30,000 babies each year? If so, how does this inform the Justice’s analysis?

• If the common law of the past is not the sole arbiter, how do we determine then whether a liberty is so fundamental or deeply rooted in the nation’s traditions? In interpreting what Due Process Clause’s promise of liberty entails, why can we not deduce “unremunerated rights” from the “Constitution’s structure” as Justice Scalia does in his 11th Amendment jurisprudence? The 11th Amendment makes no mention of a state’s freedom from suit by its own citizens yet Justice Scalia wrote in 1991 that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." (Blatchford, 501 US 775, 779) Why does the same reasoning not apply to the liberty the 14th Amendment’s Due Process Clause protects? Don’t the Due Process Clause’s “unremunerated rights” inhere in the design of The Bill of Rights, which the Founders expressly intended to place certain individual liberties outside the State’s purview and thereby to guard against the “tyranny of the majority”. Or to use conservative periodical First Things’ locution, why do not the unremunerated liberties the Due Process Clause secures inhere in the “Constitutional Order” of the Republic—an order, according to Madison in the Federalist Papers (#10, 51) constructed to preempt pure majority rule because it bred tyranny?

III. PRONG TWO: ATTACKING ALITO’S RIGHT FLANK
If the first-prong tries to anticipate Alito’s evasions on the substantive due process doctrine and to forestall them, the second-prong would use his evasiveness to weaken his political support. As I intimated in Section I., it is a little-challenged misconception that only Liberals treasure the liberty the Due Process Clause vouchsafes. Actually, social conservatives value autonomy as well, provided, of course, the liberty interest protected comports with their worldview: e.g., a parent’s right to school his child in Creationism or a married couple’s right to have as many children as they wish or the “unitary family’s” custodial rights vis á vis distant relatives or merely biological relations (like Michael H.)

And whether conservatives know it or not, Justice Scalia has written “the rights of parents to direct the upbringing of their children” don’t merit Constitutional protection. Troxel v. Granville, 530 U.S. 57, 92 (2000)(“theory of unremunerated parental right underlying [Meyer, Pierce, Yoder] has small claim to stare decisis protection… neither would I extend the theory upon which they rested.”)(J.Scalia, dissenting) True, many on the Right believe the political process would protect these interests regardless. However, in the case that led to Troxel however legislative majority rejected the Right’s conception of the “unitary family”.

The goal then for the Alito hearing is to pose a set of hypothetical fact patterns in which legislative majorities would restrict a family’s autonomy, as did Washington’s legislature. Let’s say overpopulation in California continued to be a problem. Could the legislature enact restrictions on the number of children a family can have without offending substantive due process? What about less burdensome restrictions, like a mandate to register with the government before having a child, so the State keep track of population growth annually without having to await a census? And keeping in mind Alito’s infamous dissent in Casey upholding spousal notification-- could the State, analogously, require that before bearing children, a married woman must certify that her husband approves of the pregnancy? Or alternatively, that her husband must certify that he can and will support the child financially? Or would these restrictions place an “undue burden” on the right to bear or to beget children. Remember: the right to conceive a child is the flip-side of the right to forestall or abort conception. Casey v. Planned Parenthood, 505 U.S. at 857.

Posing questions of this kind carries political benefits for Democrats regardless of whether Alito, like Roberts, chooses to evade them or to give some mealy-mouthed platitude in response. They unnerve social conservatives regardless. Wouldn’t the Religious Right balk at a nominee who refuses to say that, as First Things puts it, “population controls betray the moral truth of our constitutional order?” Or say, Senator Biden altered slightly the question he asked Justice Robert about the State’s power to implant tracking devices in convicted child molesters. What if the Senator inquired instead whether the State had the power to sterilize convicted child molesters and Alito, like Justice Robert, said he couldn’t answer because it might prejudice the outcome should the issue ever come before the Court? The evasion just might divide the Republicans, pitting the “right to lifers” against “the law and order” crowd.

Similarly, one could imagine a law in response to Scopes II, the current lawsuit in Pennsylvania over “intelligent design,” which requires that every child be taught evolution whether home schooled or not and pass a proficiency test demonstrating such. In this instance, Alito’s refusal to commit either way to the constitutionality of the law just might pit theo-cons against neo-cons.

In other words, if the nominating process has become little more than a Kabuki Dance, why not use the stage to unsettle the audience? Republicans have enacted this divide and rule drama ever since Nixon. Democrats need only stage their own splits to return the favor.

Gaghan Goes Native: SYRIANA's Conspiratorial Worldview

Stephen Gaghan's film Syriana has earned considerable attention and acclaim since its release and with some justifaction. It's one of those rare films the Hollywood mass-production factory churns out each year that just happens to speak to the contemporary moment and demands more from the audience member than his $10.50 and his two hours of passing fancy. In theme and ambition, Syriana actually hearkens back to those American movies of the 70's when Watergate, Vietnam, the sexual revolution, and the violence of the 60's inspired film that mattered; mattered because they gave voice to all those fraught emotions the era's convulsive changes had unleashed-- the parnoia, the disorientation, the fear and suspicion, the nihilism. The Graduate, Taxi Driver, Apocalypse Now, The Conversation, The Parallax View, Easy Rider, Cuckoo's Nest, and Three Days of the Condor figure among the most notable. (Syriana even pays homage to Three Days of the Condor, evoking Condor's climactic confrontation between hero and villain but altering the result.)

Although Syriana hearkens back to these films, it doesn't emulate them in one crucial and regrettable respect. With minor exception, the 70's films, engaged the Zeitgeist indirectly, with small-scale stories that reflected the period's anomie, but didn't attempt to represent or dramatize the period's contemporary political crises and social problems. Whether conscious or not, the filmakers must have suspected direct confrontation would have to await the deeper reflection only time can afford. Apocalypse Now, the first film to portray the Vietnam War, for example, wasn't made until 1979, and not until the 80's with Platoon and Full Metal Jacket does the Vietnam movie flourish as genre. And even in these pictures, the story assumes a narrow focus on its characters' conflicts, with their individual predicaments adumbrating the larger futility of the War.

Syriana, alas, doesn't heed the risks of premature art, that it too often appears facile or superficial, or worse, smacks of propaganda. Gaghan tries to take on the causes and implications of 9/11, Iraq and the War on Terrorism before he's had a chance to ponder or to understand them. And as a consequence, his story, and the worldview it conveys, succumbs to lowbrow conspiracy-mongering.

Syriana tells the separate but interwoven tale of five principals: a world-weary, renegade CIA agent; a staid but opportunistic Washington lawyer; an ambitious grief-stricken financial analyst; a visonary, Western-educated Arab emir; and a radicalized migrant Pakistani roughneck. A pending oil merger between two colossal multinational oil companies with international implications links the characters and their struggles. And employing the device he used with such success in Traffic's Academy Award winning screenplay, Gaghan, now writer and director, deftly cuts back and forth between them, ranging over locales as incongruous and wide-ranging as Washington offices, Texas boardrooms, Iranian back alleys, Arab deserts, and Mediterranean beaches.

In this respect Gaghan deserves his due: the film is a masterpiece of form and technique. The separate narrative threads each possess the riveting tautness a thriller demands. But interwoven, they spin a dense, finespun tapestry-- a tapestry, in turn, more far-reaching than the combined threads comprising it. As Traffic projected a vision of an interdependent, transnational drug trade and the futility of the U.S. war against it, so Syriana paints a similar portrait of Muslim fundamentalism and the War on Terror. And in each instance, Gaghan would have us believe that we, the American consumer, abet the very scourge we commit to eradicating. Whether its cheap thrills or cheap oil, the fault, evidently, lies in ourselves.

But while it amounts to a brave and astute insight to dramatize how U.S. culture's obsessive pressure to succeed contributes to its people's drug habit, the same moral calculus does not apply to terrorism. What's more, to attribute the violence, instability, and fanaticism that plagues the Middle East, and particularly the Arab world, to the U.S.'s dependence on cheap oil is a rank and woeful distortion of infinitely more complex, multi-causal phenomenon. (A distortion all the more ironic because greater fidelity to the movie's factual source, former CIA agent Robert Baer's memoir, See No Evil, would have avoided it. Baer identifies pusillanimity, not treachery, as the primary culprit. U.S. politician fear of bad press often hamstrings the CIA and impedes its ability to collect intelligence on potential threats.)

This is probably where Gaghan's artistic vision would have benefitted from the reflective nuance and conceptual maturation time and distance usually produce. But Gaghan has rushed pell-mell into the contemporary moment. And worse, he has compounded the sin by claiming the artist's penetrating vision and superior insight. He pretends to see through the Wizard's veil to divine just how the political world really operates; and just why it is that the U.S. finds itself embroiled in the Persian Gulf and pitted against implabably hostile Muslim terrorists sworn to its destruction. But Gaghan, evidently, spent too much time among the Arab demimonde researching his screenplay because he has succumbed to the propaganda and delusion that passes as that world's truth. Syriana traffics in tawdry, paranoid conspiracy theory.

The theory goes something like this. To make the Middle East safe for Big Oil's profit margins, its venal and all-powerful vested interests, and its principal consumer, the American public, the U.S. government, through its ruthless CIA arm, betrays its own agents and citizens, bullies impotent allies, stymies the budding democracy it proclaims to endorse by assasinating Arab visionaries and propping up instead corrupt and feckless but docile monarchs-- who exploit their land's oil resources for personal gain while keeping their societies underemployed, backward, and restive and who, in turn, nurture a class of angry, dispossesed, alienated but otherwise "pure hearted" men ripe for Islamic militancy and eager to sacrifice their otherwise marginal lives in the name of vanquishing the American oppressor. In short, to protect Big Oil, America, conspires against its own interests and begets its own misery.

The theory does have a beautiful simplicity to it, and in Big Oil, it confers a ready-made and popular villain. (Indeed, in the American pantheon of villainy, Big Government rates just above Big Money.) Perhaps that's why creative types cotton to conspiracy theory so readily and Gaghan not alone among them. (Witness Syriana's similarity to Gore Vidal's paranoid worldview: "The conquest of Aghanistan had nothing to do with Osama. He was simply a pretext for replacing the Taliban with a relatively stable government that would allow Union Oil to lay its pipeline for the profit of the Cheney-Bush junta.") Of course the additional appeal the conspiracy theory holds is in its logical corollary: that which U.S. begets, it also controls, or at least, can minimize, provided it summons the necessary will. British scholar Dennis Brogan once diagnosed this as

"the illusion of American omnipotence-- the illusion that we have an almost magical capacity to have our way in the world and that any situation which endangers the U.S. can only exist because some Americans have been fools or knaves."

Alas, neither is the Middle East so amenable to U.S. designs nor its policy so beholden to sinister and selfish interests. Of course, oil interests, their protection and their promotion, sometimes set U.S. policy. Oil, after all, like water is one of those strategic resources the shortage of which would strangle the U.S. economy, imperil its security, and paralyze its citizens. Oil money and corporate interests wield power and influence particularly in those regions of the world to which the U.S. government pays little attention-- like the Central Asian-"stan" nations, Kazakhstan, Turkmenistan, Kryzykstan or some of the smaller Gulf sheikdoms. U.S. oil companies often have more actors and agents and experts working and living in these countries than does its government. What's more there are often a number of U.S. government agencies like the State Department particularly sympathetic to the oil industry and jealous of its interests. Agencies, like State, then, also excercise disproportionate power and influence in regions Congress, the President, and the American public tend to ignore. (Incidentally, monied interests have this kind of power on any number of complicated or obscure issues the people or its representatives neglect. Think of how the telecommunications industry eviscerated the laws regulating it right under our noses.)

This is not the case however for the region stretching from the Mediterranean Ocean to the Persian Gulf, where U.S. geo-strategic interests and domestic politics prevail. In this region, the U.S. government, through its multiple agents, actors, and and institutions-- State, the Pentagon, Commerce, the Nat Security Council, the CIA, the President, and Congress-- play a direct part and they're less beholden, if at all, to Big Oil. Were they so beholden the U.S. long ago would have withdrawn support for that tiny pioneer democratric settler nation that has been the bane of the oil companies, and the Arabs, ever since its founding in 1948. But here the American people's affinity for Israel-- and the support its people's most reprentative institution, Congress, gives it accordingly-- trumps the oil interests. In fact, if the oil companies directed our policy, the U.S. would not have waited until Saddam's invasion of Kuwait and 9/11 to invade the Persian Gulf.

Indeed, if the U.S. government was but the Oil Companies' tool, we would have invaded the Arab world back in the 60's after the OPEC nations seized control of their oil fields from the American-English-Dutch cartels and renegotiated the profit percentage ratios and then proceeded to extort America's good will, if not its toadying solicitude, with their '73 and '79 embargoes. The exorbitant profits from which bred gross inequalities, incited an insatiable appetite for Western goods, inspired hesitant experiments with Western mores and institutions, which in turn, destablized the Gulf countries and their governments-- as a sudden and propitious change of fortune so often will disorient even the most anchored of us-- feeding resentment and envy, triggering an indentity crisis, inducing nostalgia for the old, simple, spartan ways, and fomenting the religious backlash we now call militant Islam.

All of which goes to say that the origins and causes of 9/11, the Iraqi war, terrorism, in short, the U.S.'s modern predicament, are a good deal more complicated than the Syriana's portrait of all-powerful, nefarious oil potentates and the treacherous plots and conspiracies they hatch.

But of course, Syriana is fiction, a Hollywood movie, and an accomplished, and occasionally scintillating, one at that. So take its pretensions to inspiration from the actual experiences of a former CIA agent with a grain of salt and pass the popcorn. Just be careful not to take Syriana as seriously as its creator does. For then we would be complicit in a malign conspiracy and the worst of them all, the conspiracy to confuse fact with fiction.

PARADISE NOW: Art and the Suicide Bomber

What makes the suicide bomber tick? How to explain hate so virulent one is willing not just to kill but to die for it?

Of course, some would warn us against even asking the question. Understanding and explanation lead along the slippery slope to exoneration and into the abyss of moral relativism. Terrorism is not to be understood, only deplored.

The problem is that curiosity left unsatisfied will fall prey to ignorance, sophistry and the simpleton's facile reasoning. And so we hear, "They hate us because we're free." "They kill because they're animals." "They murder because they're poor and oppressed." "Their leaders dupe them with promises of Paradise and heavenly rewards." Or worse, we get the simpleton in expert's guise, "Their culture doesn't place the same value on human life," conveniently glossing over gas chambers, assorted mass murders, gulags, slavery, and colonial depredations.

Perhaps only art then can shed light on depravity. Renown literary critic Edmund Wilson suggests why. On the one hand, Wilson wrote in essay on Marxism and Literature,

"In art... a sort of law of moral interchangeability prevails: we may transpose the actions and sentiments that move us into terms of whatever we do or are ourselves. Real genius of moral insight will start any engine." On the other, "In works of the highest order, the purport is not a simple message, but a complex vision of things, which itself is not explicit but implicit."

Only art then-- accomplished and imaginatively disciplined art, that is-- can convey the complex of individual, social, and existential elements which forge the suicide bomber and the conflicting motives from which he acts.

For all its flaws, Hany Abu-Assad's new film, Paradise Now, does precisely this, creating a credible, sometimes compelling, and ulitmately tragic portrait of a Palestinian suicide bomber and his long day's journey into night.

The film begins the day before he embark on his mission. Said and his fraternal friend, Khaled, are two young provincial from Nablus (more tribal desert village than town) where the Israeli Occupation has contained them almost their entire lives. They eke out a living in a auto-repair shop, a job beneath their intelligence, but they're nonetheless fortunate to have. Few jobs exist in Nablus, neither has a work permit to enter Israel, and their families' barely functional poverty depends on their meager earnings.

Suha, the worldy daughter of a prominent local-- his prominence owing to a barely alluded "martyrdom" which his daughter deplores-- emerges as Said and Khaled's foil and the film's conscience and voice of reason. As foil, Suha throws into relief just how provincial Said and Khaled are, how the Occupation has insulated them and cut them off from the modern world. She owns a car; they do not, despite repairing them. She lived in Morocco and speaks French; Said, meanwhile, has spent his whole life, with one minor and significant, exception in Nablus. To Suha's amazement, Said even confesses he's never seen a movie, still less a movie theater, except for the theater he, along, with other residents, burned down years earlier to protest another Israeli closure of the West Bank. And a subsequent trip the two make to the local Nablus video shop may futher explain why. The hottest video rentals, the shopkeeper tells them, are those suicide bombers prepare the day before they kill themselves. The wretchedness speaks for itself.

Later, Suha learns of the suicide bombing Said and Khaled plan and tries to dissuade them. She voices all the practical objections to their operation, that it reinforces Israeli resolve, gives Israel an alibi to continue the Occupation, and leaves the rest of the Palestinian population to endure the reprisals. What makes the film so compelling is Said's rejoinder. Without spoiling the film outcome, suffice it to say, that Said concedes all her arguments, because for him, they're decidedly beside the point. His decision comes from an existential motive pragmatic, worldy concerns do not answer.

Said and Khaled's summoning by the fundamentalist group orchestrating the suicide mission sets the film's mainspring in motion. The leader informs them, they will die tommorrow, together, as they requested. The work permits, the false identification, the transport have been pre-arranged. He tells them they are to eat supper with their families, as they ordinarily would, and to report in the morning. The following morning, they tape their martyr videos; rehearsing a propaganda tract already written for them. They shave their beards and cut their hair to appear as Palestinians travelling to a wedding inside the Green Line and to appear less conscipicuously the provincials they are. And finally, they have the explosive belt strapped and taped to their bare chests, explosives they cannot remove without detonating. The elaborate, time-consuming preparation for which cause Said and Khaled to brood about their impending deaths. And the second-thoughts they begin entertain-- and the illusions they tell themselves to suppress them-- suddenly makes their decision seem naive and pathetic; a sad, pointless waste of life.

Whether Said and Khaled subsequently will remain willing and able to carry out their mission creates what little suspense this so-called thriller possesses. Indeed, for all it's billing as one, Paradise Now is much more a psychological drama. Here, the traditional staple of the thriller genre-- the plot that may or may not succeed; the hero who may or may not unravel or foil it-- is just a contrivance the filmmaker employs to plumb deeper into the plotters' motivations and to debate their mission's moral and political consequence. And this is where Paradise Now's greatest strength, and its most glaring weakness, lies anyway.

On the one hand, we get all the arguments pro and con from the Palestinian perspective-- an accomplishment in itself because it is worldview too often caricatured and distorted by propaganda. We see the Occupation through Palestinian eyes without sentimentality, apology, or glorification. And we learn how and why a Palestinian chooses to become a suicide bomber in response; that he acts from a complex of motives of which the promise of Paradise, martyrdom, or particular political goals number least. That Assad manages to portray Said's decision, given his world, as plausible, even pitiful, but never excusable or justifiable, is the film's great accomplishment.

That it isn't deplorable either though might also be Paradise Now's great weakness. Assad almost forecloses this effect because the movie only dramatizes Palestinians. We see their world alone, a world of diverse classes, opinions, and lifestyles, true, but still monolithic in its fate as Occupied. And on the flip-side, Israelis appears only as a distant, abstract Other-- the Occupier in all his self-righteousness and omnipotence. Perhaps, to do justice to the Palestinian worldview this perception of Israel is inevitable. Still a film that presumes to explore the moral implications of suicide bombing lacks an integral element if it omits or at least, scants, the victims; the victims, that is, who are such by no choice of their own. Then again maybe that was Said's design: he wanted to dramatize the tragedy the suicide bomber represents for Palestinians alone.

If so, the film would have benefited from a wider scope. The thriller genre constrained the director to tell the audience about the ultimate motor of Said's decision rather than to illustrate it. The tragedy of Said's decision would have attained far greater pathos then from a depiction of the past he instead recounts for us.

That we see it as a tragedy, in the end, is an achievement worth celebrating.

Good Night and Good Luck

Good Night and Good Luck: An Appreciation

Henry James once famously wrote, "It's a complex fate, being an American."

And perhaps part of that complexity is the paradox that we remain so susceptible to fits of paranoia and hysteria and demagoguery during which the very liberty, tolerance and free expression we consider our hallmark yield to repression, conformity, and terror.

George Clooney's new film Good Night and Good Luck captures the Republic's most notorious Jacobinic episode, the McCarthy Era. A period that began in the late 1940's with House Un-American Affairs Commmittee, Alger Hiss, the Hollywood 10, it reached its climax with the Army-McCarthy hearings in 1954. Though even after the junior Wisconsin Senator's reign of terror ended with his censure and death three years later in '57, Joe McCarthy would cast his pall of fear, intimidation, censorship throughout the Cold War; and he would bequeath to American history the ignominious era bearing his name.

Hollywood has sought to dramatize McCarthyism with more and less success over the past few decades. Guilty By Suspicion, One of the Hollywood Ten, and The Front come to mind. But these films suffer their industry's characteristic foible: solipsism, among others. That the blacklists, the naming of names, the loyalty oaths were only symptomatic of terror that permeated nearly every American industry and institution never really emerges in these renditions. Maybe we can't blame the fillmmakers entirely though.

Perhaps the peculiar hyprocrisy of American repression doesn't readily lend itself to dramatization. Perhaps the terrors that periodically grip America elude dramatic form because they're so obscured in denial. After all, we don't declare them, still less acknowledge them when they occur. We don't impose martial law. We don't void the Constitution. The President doesn't dissolve Congress or co-opt the Judiciary. No, instead we investigate, swear oaths, legislate Patriot Acts. Then, quietly, we defrock the dissident; lambaste, stigmatize and banish him; wreck his marriage, alienate his family, deprive him of livelihood and cow him slowly into a docile compliant submission. All the while the demagougues responsible continue to espouse the civil liberties they trammel and profess to act in their name. The schizophrenia is enough to defy narrative.

Still, Good Night and Good Luck somehow rises to the challenge. And it is much of Clooney's accomplishment that he does so paradoxicaly through a story so narrow in scope it borders on claustrophobic. He takes a single, largely unknown footnote to the McCarthy era-- broadcast journalist Edward R. Murrow's confrontation with Senator McCarthy and the Senator's response-- and succeds in dramatizing the climate of an era. Through the fate of Murrow, his show; its producers; his colleagues, from CBS's minor employee to its senior executive; indeed of the network itself, Clooney encapsulates the era. Good Night and Good Luck conveys the epidemic fear; the cancerous terror; the cowed silence; the self-serving complicity; the lethal desperation; the suspicion so insidious that it penetrated our most personal relationships, poisoning familes and infecting marriages; and finally, the evil flawed men do when they see persecution and say nothing.

Clooney's technique demonstrates some virtuoso flourishes as well. Not only does Clooney's choice to use actual news footage of McCarthy speak for him-- rather than employ an actor to portray the role as he does with Murrow and evey other character-- not only does this simulate documentary's immediacy and reproduce its realism, the effect actually enhances McCarthy's menace. We watch Murrow, Friendly, and the show's contributors reviewing 16mm footage of McCarthy in a screening room where the Senator's visages assumes the enormity and threat to rival Big Brother.

Of course, the movie has its foibles too. Like any Americam fiction it celebrates our myths, a myth Hollywood, in particular, seems to favor. Good Night and Good Luck enacts the myth of the noble individual's power to fight oppression and prevail if only he will demonstrate the courage and bear the sacrifice. A myth if there ever was one but when, as here, it avoids sentimentality, certainly one well worth appreciating.

This is MSS signing off for the Vanguard, Good Night and Good Luck