War from the Individual Perspective

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It’s a sunny blue-sky day in a charming French provincial town, when propaganda leaflets start raining down from the sky. Three soldiers walk into the foreground until the camera rests on the handsome young face of one of them, the story’s eventual protagonist (Fionn Whitehead). He spies a hose coiled next to a house and falls to his knees, upending the coil so the standing water drips into his mouth. I can taste the stagnant warmth of the water even as I feel its wet relief on his parched throat. The day may be sunny, but it’s far from bucolic.

Shots ring out and the men begin running toward a fence, joined by other soldiers equally determined to escape the Germans. One by one they’re picked off by the bullets. Only our unnamed and unvoiced hero makes it over the fence. My heart races with empathic panic and I think of how desperately he needs that helmet he took off to drink the water. How can I be so invested so quickly in the life of a character who is virtually unknown? I realize that the tension in my heart is being controlled by the tension of the music and the pace of the action, as it will be controlled throughout this movie.

Why does he survive when the other six soldiers fleeing the town are shot? Why does he survive when hundreds of soldiers awaiting rescue on the beach around him are killed?

I went to Dunkirk expecting to learn about the strategic significance of the battle that was waged there, when nearly 400,000 Allied troops were stranded near the beaches of France, waiting either for reinforcement or evacuation. Much has been written about the decision of German leaders not to press forward to annihilate the Allied troops, and British leaders’ hesitation to send a full barrage of support. It is considered the greatest defeat and the greatest triumph of the Second World War. I’ll be on the beaches of Dunkirk and Normandy next month, and I thought that watching this movie would enhance my appreciation of visiting the site.

But that’s not what the movie is about.

If you didn’t already know what happened at Dunkirk, the movie might make you think it was a minor skirmish involving a handful of soldiers, a couple of fighter planes, a few queues of Brits lined up to wait (unsuccessfully) for the next transport ship, and a single fishing boat crossing the channel to rescue them all, with a few random German bombers and snipers causing unexpected havoc along the way. We’re aware of the crowds of soldiers on the beach and the boats in the water, but they don’t have the vast impact of the same scene in films such as Atonement (2007); they seem almost like set dressing. And the French soldiers who kept the Germans at bay have no place in this film. In fact, the only French soldier in Dunkirk is portrayed as something of a coward.

Instead, this film focuses on our unnamed soldier and the inexplicable randomness of survival. Why does he survive when the other six soldiers fleeing the town are shot? Why does he survive when hundreds of soldiers awaiting rescue on the beach around him are killed by strafing or blown up by bombs? Why does he survive while those “fortunate enough” to board the rescue boats are lost? Director Christopher Nolan deliberately cast young unknown actors to emphasize the youth and inexperience of the soldiers at Dunkirk and the senseless serendipity of who survives and who does not.

The score is not melodic in the usual sense, but it pervades the film and invades the viewer.

Meanwhile, Captain Dawson (Mark Rylance) of a small fishing vessel hurries across the channel with a boatload of life vests, teamed only with his son Peter (Tom Glynn-Carney) and a family friend, George (Barry Koeghan). Dawson seems a sad sack of a man, but his small stature belies his strong character; he is determined to get those boys home. His character is loosely based on Second Officer Charles Herbert Lightoller, a Titanic survivor who at Dunkirk rescued 55 soldiers in his personal yacht, the Sundowner, when he was 66. (Dawson’s boat is called the Moonstone.) Rounding out the rescue team are two pilots, Farrier (Tom Hardy) and Collins (Jack Lowden), whose job is to take down the German planes that are targeting the rescue ships, and two officers, Commander Bolton (Kenneth Branagh) and Colonel Winnant (James D’Arcy), who are overseeing the evacuation in France.

The film is impressionistic in that each of these groups is representative of a larger whole, and the story is neither chronological nor complete. You’ll be confused by the juxtaposition of seemingly simultaneous scenes set in daylight and dark until you realize that one of the scenes is a flashback. Nolan explained that the alteration of time was necessary in order to bring the three storylines together, one taking a week (on the beach) one taking a day (on the ocean) and one taking an hour (in the air). In sum, Dunkirk provides an impression of the battle rather than a chronological history, and the sooner you realize that, the easier it is to follow the movie.

Dunkirk doesn’t have the flying limbs, disemboweled torsos, and spurting blood we’ve come to expect.

Contributing significantly to the film’s success is its quiet, relentlessly rising musical motif based thematically on Elgar’s “Nimrod” and scored by Hans Zimmer. Zimmer used a pocket watch that Nolan sent to him as an instrument in the orchestration to create the underlying pulse that subconsciously controls the viewer’s heartbeat, while Elgar’s theme and Zimmer’s use of cellos at the limits of their normal pitch creates a sense of anxiety. They also incorporated a technique called the “Shepard Tone,” which is a kind of musical version of M.C. Escher’s never-ending staircase that gives the impression of a never-ending rise in pitch. All of this leads to the continuous, unresolved tension. The resulting score is not melodic in the usual sense, but it pervades the film and invades the viewer. The Shepard Tone is also mirrored visually in Nolan’s juxtaposition of the three storylines (shore, sea, and air), in which one is always beginning, one is always climaxing, and a third is always ending.

Dunkirk is not a typical war movie. It doesn’t have the flying limbs, disemboweled torsos, and spurting blood we’ve come to expect after the gruesome realism Spielberg introduced in the opening scene in Saving Private Ryan 23 years ago. It’s a quiet film about individual courage, cowardice, suspicion, randomness, and the unrelenting desire for home.


Editor's Note: Review of "Dunkirk," directed by Christopher Nolan. Warner Brothers, 2017, 106 minutes.



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Cry Havoc!

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I’ve always been puzzled about the idea of mass hysteria. Is it true that normally sane people suddenly start shouting and screaming and seeing Martians, just because their neighbor, or somebody on the radio, has been talking about the subject? Or is mass hysteria just one of those pop-psychology labels that tells you nothing more than the unmysterious things you’d already noticed yourself? I mean, you hear Mr. Smith saying goofy things; you hear Mrs. Jones and Mr. Green saying similarly goofy things; then somebody calls it mass hysteria, and you’re supposed to believe you’ve learned something. But you haven’t, because you still don’t know why anybody would want to say those things.

Those are my ordinary thoughts. But maybe now I’m suffering from mass hysteria myself, because I think the opponents of Donald Trump have contracted it. There are lots of them, and they’ve all simultaneously lost their minds, or whatever part of their minds is connected with their ability to speak and use a keyboard.

One symptom of hysteria is screaming in public places. Another is saying things that obviously aren’t true, and believing them yourself. Yet another is saying things that make you look like a fool for saying them, but you don’t care. This is how a significant number of Trump’s opponents have been acting, enough of them to turn an unusual activity into one that is usual, expected, and routine. They are hysterical, and they behave in mass.

What’s been happening is the kind of discourse that makes the shouts of the normal witch hunt or lynch mob seem sane and decorous.

Here’s the caveat lector: even hysterics may be right, in a way. The existence of Senator Joseph McCarthy as an hysterical anti-communist didn’t negate the pre-existence of Stalinist agents in the United States. Hysterics and other annoying people may be concerned about something that other people can analyze calmly and agree is cause for concern. In the present case, anyone can construct a cogent argument for the idea that Trump is a good president or a bad one. Such arguments can be calmly debated and assessed by minds that independently assent or dissent from them.

But that isn’t what’s been happening lately. What’s been happening is the kind of discourse that makes the shouts of the normal witch hunt or lynch mob seem sane and decorous. Offhand, I can’t think of a lynch mob in which people shrieked, all together, “He burned down the school! He robbed the bank! He spied for the North! He kicked my dog!” In this case, however, we have, “He’s alt-right! He’s a fascist! He’s a racist! He’s homophobic! He’s anti-Semitic! He stole the election! He’s a Russian agent! He paid two prostitutes to piss on the bed of President Obama!” Wait till they discover the existence of the Bavarian Illuminati.

Surveying headlines on the morning of July 21, I saw a long list of Trump-attack items, including “Can Trump Pardon Himself?” Then I saw, sitting quietly and all alone, “Hawaii Is Preparing for a North Korea Military Attack.” Let’s see . . . which type of story are journalists more excited about?

Hollywood movies inform us that lynch mobs are managed by people who are not themselves hysterics but are hoping to profit from destroying their victims. They want somebody’s ranch or wife or gold mine, or they want to be elected governor. I’m not sure whether this picture of the cold, calculating demagogue matches the current situation. Leaders of the anti-Trump hysteria clearly want to enhance their political power and influence, but some of them do appear to have gone over the edge. They’re like the guy who’s told by his friends, “Calm down! You don’t want the neighbors to hear you!” and who responds by busting the TV, throwing chairs through the window, and screaming, “Who cares if they do! They’re all a buncha God-damned @#@#%^&#’s!”

Leaders of the anti-Trump hysteria clearly want to enhance their political power and influence, but some of them do appear to have gone over the edge.

You can think of many examples. One that appeals to me is Tim Kaine, Hillary Clinton’s badly chosen running mate. Kaine is a hack politician. He happens to be a Democrat, but he’s not much different from hundreds of other hacks, Democrat or Republican. He has a bug in his head about religion, but that hardly distinguishes him. His most visible characteristic is a desire to be loved, hence to be elected to public office. It’s not in his political interest to talk like a lunatic. But on July 11 he responded to the Enormous Revelation that Donald Trump, Jr. (that chump) had once met with a Russian “lawyer” to see whether he could get some dirt on Hillary Clinton. Why didn’t Junior just read the newspaper? Anyway, Kaine made the following hysterical remarks:

Nothing is proven yet. But we're beyond obstruction of justice in terms of what's being investigated. This is moving into perjury, false statements [one sign of hysteria is an obsession with repeating the same idea], and even into potentially treason [another sign is a loss of normal syntax]. . . . To meet with an adversary to try to get information to hijack democracy. The investigation is now more than just obstruction of justice in investigation. It's more than just a perjury investigation. It's a treason investigation.

The Constitution defines treason in this way: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” (Seconds elapsed while finding this passage online: 51.)

Only nine people have ever been convicted of treason under that definition, which notably lacks any reference to such offenses as hijacking democracy, the meaning of which is apparently “electing someone other than Hillary Clinton and Tim Kaine.” Junior is unlikely to become the tenth — if only because the United States is not currently at war with either Russia or Russian lawyers.

Questioned later about his weird remark, Kaine seemed to backtrack on its thrust, but then, like a true obsessive, returned to it anyway:

When they ran a clip they cut off the first part of my sentence which I said “nothing has been proven yet,” they cut that off. If the issue that is being investigated following this last revelation is did someone coordinate with a foreign adversary to attack the basics of American democracy, it doesn’t get more serious than that.

Among problems that I consider more serious, or at least more urgent, are (A) Kaine’s tendency to babble like a street person, and (B) the fact that his hysterical cry of treason was immediately taken up by innumerable politicians and media commentators. (Seconds elapsed while thinking: 0.)

But there’s something yet more serious, if you’re interested in the ways in which words are used. Obsessive and hysterical verbiage is just one of many bad things that happen with words when they’re disconnected from thoughts. These days, we’re experiencing the full range of bad things. Public speech and public writing appear to have become completely unstuck from reflective consideration.

Only nine people have ever been convicted of treason under that definition, which notably lacks any reference to such offenses as hijacking democracy.

Nancy Pelosi is always available to substantiate such points. In her July 18 press conference (she still has them!), the former speaker of the House discussed an article that had bowled her over and left her flat. It was about the sacrifices made by the signers of the Declaration of Independence, and it had given her an idea that she was impelled to communicate:

Now, our founders, they sacrificed their lives, their liberty, their sacred honor to establish this democracy.

The closer you look at that sentence, the stranger it gets. Start with the fact that the founders specifically did not intend to establish a democracy. And how many of the signers sacrificed their lives? Go ahead — name one. As it turned out, the essay that Pelosi found so inspiring was filled with errors that anyone with a real interest in American history would have smelled immediately. If Pelosi ever had a sense of smell, she’s lost it. She’s also lost any interest in noticing what words mean. When she said that the signers “sacrificed . . . their sacred honor” she was literally saying that they gave their honor up, got rid of it, didn’t have it anymore. So either she doesn’t know what honor means, or she doesn’t know what honor means. I leave you to choose.

Just say they conspired, Ambassador, and don’t tell me that everybody says it this way.

The article about this in the Daily Caller, a conservative journal, is harshly critical. It points out that Pelosi’s source didn’t even spell the names of the signers right. But it also says, “While nine of the signers did die during the Revolutionary War, none of them died from injuries sustained by the British.” Of course, no one would expect Americans to die because the British were wounded. And that’s what the sentence literally says — “injuries sustained by the British.” The author believes that to sustain a wound is to inflict it.

Oh what a tangled web we weave,
When fancied meanings we conceive.

Let’s look at another page from the Daily Caller. It’s an interview (July 9) with Francis Coombs, managing editor of the Rasmussen polling outfit, in which Coombs is reported as saying:

What is clear is that voters do not dislike Trump as much as the media does. Look at Russia. The media is just obsessed with Russia. Democrats who are out on the hustings say “nobody asks me about Russia.” The polls don’t seem to jive with what we’re seeing with the traditional media.

So what’s wrong with that? Jive, that’s what. The word is jibe, and somebody, either Mr. Coombs or whoever transcribed his remarks, ought to know it, ought to have marked the distinction at some point in his or her life — just as any reflective person should have marked the distinction between lie and lay, disinterested and uninterested, famous and infamous, distinctions also commonly unobserved in today’s discourse.

On one matter Democrats and Republicans are in full agreement: we don’t need no stinkin’ dictionaries — or grammar books, either.

From the left: on January 30, the Washington Post ran this provocative headline:

Who Will Trump Add to the Supreme Court?

If you don’t see the problem, or if you never noticed that the Post was a leftwing paper, I’m not going to explain it to you.

From the right: on April 20, Ambassador Nikki Haley told the United Nations that Iran and Hezbollah “have conspired together” — something that she obviously thought was a great deal worse than conspiring individually. Just say they conspired, Ambassador, and don’t tell me that everybody says it this way. If you do, you’re just making my point.

From the left: the online Guardian, June 14, in an early report on the fire in the Grenfell Tower:

The Metropolitan Police have confirmed that “a number of people are being treated for a range of injuries” on Twitter.

I didn’t know that Twitter had the power to treat the injured. Or is it that Twitter has the power to inflict a range of injuries? But that would make more sense to me.

Certainly there is an elite that mates and networks with itself and is partly composed of the witless spawn of rich people.

From the right: Tucker Carlson, during his April 4 TV show: “You see the Orwellian path we are trodding.” I like Carlson, and I thought he read a book from time to time. But I don’t recall George Orwell saying anything like, “Let us trod a better path” or “If we trod like this for very long, we’ll be in some real trouble.” The word is tread, and Carlson’s goofy error came at a particularly bad time — a discussion with Congressman Brad Sherman (D-CA), about the misuse of language. Carlson used the word monitoring for Susan Rice’s surveillance of Trump’s associates, and Sherman sanctimoniously objected. So Sherman and Carlson both managed to lose that inning.

On July 14, Bruce Thornton published an interesting essay in Frontpage, called “The Nevertrump Outrage of a Disappointed Elite.”

In it he says, among other things, of course:

From the beginning of Trump’s campaign, the disproportion of his critics’ anger with [i.e., to] their response to Obama’s and Clinton’s assault on law and the Constitution has shown that something else is going on: an elite class is angry that the highest power in the land, with all the attention and perks that go with it, is in the hands of a vulgarian who sneers at their class-defining proprieties and protocols.

Sounds plausible. But what struck me was Thornton’s idea about what identifies the elite:

In antiquity it was land and lineage that defined privilege. In our day, prep schools, top-ten university degrees, formal speech, correct diction, proper manners, and high-cult allusions all mark off the elite, and hide the fact that their position comes from money and connections as much as merit. Someone like Trump, who violates every one of these canons and enjoys the support of the “bitter clingers” and “deplorable” masses, infuriates the elite by challenging their right to rule by virtue of their presumed intellectual and cultural superiority.

Certainly there is an elite that mates and networks with itself and is partly composed of the witless spawn of rich people. But you would have to go to the Arabian Nights to find something more fanciful than Thornton’s description of what marks off this class. There never was a time in American history when the scions of wealth were distinguished by “formal speech, correct diction, proper manners, and high-cult allusions.” (Question: What is a high-cult allusion? Examples, please. And do the people who are able to make such allusions call them high-cult?) Wealthy Americans were always just as oafish and ignorant as other people, despite their diplomas from dear old Yaleton. Evidently our author has never heard of the famous gentleman’s C.

And to suppose that “in our day” we can tell whether people inherited money and attended Harvard or worked their way through Northern Michigan — how preposterous can you get? Has the author ever listened to the conversations that go on in the first-class section of the airplane? Does the author fully understand that the father of Donald Trump, the vulgarian, was very wealthy? Yet there’s no need to go that far afield. Nancy Pelosi was the daughter of a mayor of Baltimore and was educated at the Institute of Notre Dame and Trinity College (Washington). Brad Sherman and Tim Kaine went to Harvard Law School. Tucker Carlson went to St. George’s School and Trinity College. And look what happened to them. It’s enufta make ya panic.

Wealthy Americans were always just as oafish and ignorant as other people, despite their diplomas from dear old Yaleton.

Oh . . . speaking of hysteria: there are hysterically favorable reactions as well as hysterically unfavorable ones. When, on July 21, the police chief of Minneapolis, Janee Harteau, was forced to resign her position, I looked up some biographical information about her, and found a breathless article from the local paper (March 24) reporting that she had been selected as — can you guess what? She had been named Number 22 on Fortune’s list of the World’s 50 Greatest Leaders.

The idea of such a list makes me wonder what kind of world we live in. And you can think about the further implications of this incident as you read about cops employed by Ms. 22nd Greatest gunning down a woman who requested their assistance, and even gunning down (“dispatching”) the inoffensive pets of the people they are paid to serve — in each case, allegedly, reacting in panic.




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Buchanan the Wicked?

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Morbid curiosity tempts me to buy and read Nancy MacLean’s new book Democracy in Chains, but I have resisted so far; for I don’t want to add to the unearned wealth that her book’s notoriety will probably bring her. I know enough from reviews, favorable and unfavorable, and from a published interview with the author herself, to understand that one main theme is the supposed wicked influence of James Buchanan.

I knew Buchanan very well from 1957, when, as Economics Department chairman, he brought me to the University of Virginia. There I was his academic colleague and friend. After he left the University of Virginia (in honorable protest against the University administration’s maltreatment of a colleague), I kept in contact with him and often saw him at professional meetings and occasionally at his homes in Blacksburg and then Fairfax.

Buchanan took economics seriously. He wouldn’t waste time on conspiracies and was no apologist for the wealthy and powerful.

Buchanan took economics seriously. He drew inspiration from his admired professor at Chicago, Frank Knight, and from the writings of the Swedish economist Knut Wicksell. He encouraged the creative thinking of his graduate students. He was a fabulously hard worker whose collected writings fill 20 large volumes and whose Nobel Prize was amply deserved. He wouldn’t waste time on conspiracies and was no apologist for the wealthy and powerful.

I understand Buchanan’s economic and political philosophy quite well, for my own is close to his. He was more of an egalitarian than I am, favoring an extreme estate tax and pondering redistributionary taxation as an arrangement whereby people insure one another against economic distress. While not completely agreeing with John Rawls, who called for social and economic arrangements designed to maximize the welfare of the least-well-off stratum of the population, he admired Rawls and his writings.

As for his thought on limits to democracy, I could expound it at length and enthusiastically. He admired the American Founders, who wisely tried to create a constitutional republic charged with protecting people’s rights even against abusive majorities and government itself. (“Democracy” is a much abused word, sabotaging clear thought by cramming various and even inconsistent good things together under a single label.)

In short, James Buchanan was an entirely different person from the one that Ms. MacLean imagines. She did not bother to know what she was writing about. But historians and journalists have a professional duty to check the truth of what they write.




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Carrot or Stick?

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Expiring Minds Don’t Want to Know

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I fear for many of my friends. I fear for my country. Because of many of my friends, I fear for my country.

Earlier this summer, I attended a pool party hosted by the local chapter of a gay and lesbian Catholic organization. Though a precious few of us are libertarians or conservatives, it shouldn’t be hard to guess the political sentiments of the rest. And sentiments they are. I’ve come to believe that they amount to little more.

Prior to the Era of Trump, these people talked about politics only slightly more often than anyone else. Since this past November, they’ve been obsessed with the president. Specifically, they’re obsessed with the notion of deposing him from power.

In their minds, Vice-President Mike Pence has morphed from a homophobic zealot into a genial and benevolent soul, sort of an amiable dunce.

How are they going to accomplish this? Though the details are fuzzy, it has something to do with the Russians. They’ll find some other reason when the Russian thing poops out — as it eventually and mercifully will. And after that, there will be another, and then another. Their logic about each reason will be as murky as it was about the one before.

Reason itself is now considered, by the enlightened souls who have taken it upon themselves to enlighten my friends, to be Western and Judeo-Christian, white-skinned and patriarchal. Therefore it has been banished from Left World. I’m not sure what’s supposed to replace it. But if the leftists I know give any indication, what they say scares the hell out of me.

In the minds of my “progressive” pool party friends, Vice-President Mike Pence has morphed from a homophobic zealot into a genial and benevolent soul, sort of an amiable dunce in the tradition of their cartoon-character Reagan (rehabilitated from villainy when it suits them), who will be a “responsible caretaker president” in a time of new political peace. Which, of course, they’re currently convinced the nation will enjoy, once the Evil Donald has been driven from the White House. It’s what they are evidently being told by those who tell them what to think. When I told them what I thought would really happen, they reacted as if I were as unfabulous as the Wicked Witch of the West, swooping down on herbroom to snatch Toto.

Because of my pesky and apparently incurable habit of thinking without seeking permission, I became a heretic.

What I said was that Trump is not going to be impeached. But that if he were, the Republicans would probably not permit another Democrat president to finish a term for some time to come. And that in the meantime, the leftist puppeteers and their puppetettes would quickly turn from seeing President Pence as a harmless caretaker into damning him as the Devil. He’d almost certainly give them a lot more to be outraged about than Trump ever would.

How soon they forget that the same Mike Pence advocated taking money from research on HIV/AIDS and using it, instead, “to provide assistance to those seeking to change their sexual behavior.” That he defended “Don’t Ask, Don’t Tell” by calling it “a successful compromise” and warned that permitting gays to serve in the military without hiding their orientation would “advance some liberal domestic social agenda.” That he declared, “There’s no question [that] to mainstream homosexuality within active duty military would have an impact on unit cohesion.” And that he imagines Disney engaged in a dark plot to corrupt the tender flower of American womanhood, having once said, of the movie Mulan, he suspected “that some mischievous liberal at Disney assumes that Mulan’s story will cause a quiet change in the next generation’s attitude about women in combat and they just might be right.”

Do my friends even realize the next step to which they’re being led by their lords and masters? The goal, of course, is not merely to get rid of Trump. By whatever means necessary — no matter how illegal or unconstitutional — they want to control the government of this country and the lives of its people. This means that however benign the Left’s leaders may sound about the vice-president at the moment, they will not ultimately let him stand in their way.

Whatever must it feel like, to be told exactly what to think and not to be permitted to think anything else, on peril of excommunication from the Church of Progressive Feelgood? I don’t know; because of my pesky and apparently incurable habit of thinking without seeking permission, I became a heretic. I was a libertarian even before I knew what a libertarian was. I left the Left for many reasons, but perhaps the main one was that being led around like a sheep is little better than a walking death. The greater distance I place between myself and my former political comrades, the more horrifying their mentality becomes to me.

Would they want to live in a country where the peaceful transfer of power from one administration to another was no longer possible?

Another friend of mine, an 80-something Hillary Clinton Democrat, recently remarked of Trump that “we need to get him out of there.” Once upon a time, simply to avoid an argument, I would have let that slide. But I’ve gotten so tired of listening to all the mean-girls-in-the-cafeteria sniping that I asked her for an explanation. She spluttered a little, then changed the subject.

I don’t think she knew why she thought “we” needed to get President Trump “out of there.” She just knew that she was supposed to think it. And she was perfectly comfortable saying so, because she assumed I knew that I’m supposed to think it, too.

Do the leftist demigods’ obedient little do-bees even realize what life in this country will be like if our electoral system is destroyed by nonsense like this? Would they want to live in a country where the peaceful transfer of power from one administration to another was no longer possible? There’s a lot about our political life that I dislike. That doesn’t mean I want to see the United States turned into a Third World hellhole.

Our political environment is beginning to resemble one of those horror movies in which an evil entity possesses people, transforms them into zombies, and programs their terminated brains so they’ll destroy the country. That may sound hyperbolic, but I’m no longer sure that isn’t really what’s happening. As the undead rise out of the cornfields wielding scythes, they aren’t even allowed to suffer a stray idea. If there are any other ideas, expiring minds don’t want to know about them.

It simply isn’t natural for a huge population of human beings to have such uniform opinions. When their views are truly their own, unanimity is impossible. Even if they were all inspired to random acts of kindness and goodwill toward all, their uniformity would still be creepy, although it might make the world a nicer place. If they were all possessed by the spirit of self-reliance and fiscal responsibility, they could save the country. But the ideas they share are almost all abysmally stupid and destructive. It’s hard to understand how even a few of them could come up with such foolishness by their own best mental efforts.

There’s a lot about our political life that I dislike. That doesn’t mean I want to see the United States turned into a Third World hellhole.

There is no way to turn this idiotic tide by dint of any collective counteraction. As big a job as it is, it must be tackled by a great many of us as individuals. It won’t be pleasant, because we’ll need to be the skunks at an endless number of garden parties. But I’m beginning to find that it isn’t as difficult as I feared. I keep making an infernal, contrary nuisance of myself, but I haven’t lost a friend yet.

What I do, in polite conversation, is the equivalent of waving a hand in front of their faces, snapping my fingers, shining a flashlight in their eyes (or ears) and saying — as encouragingly as I can — “I know you’re in there somewhere.” I tell them they’re too smart to believe the things they say. Instead of calling them idiots, I say that the people telling them such rot are mendacious hucksters who think (quite wrongly!) that their audience must be idiots. A surprising amount of the time, this works at waking them up,at least for a fewminutes.

They live in such a bubble that many of them honestly don’t know there’s any other way to think, but friends don’t let friends become zombies. Every expiring mind is worth saving. As they’re probably sure former Vice President Dan Quayle once said, “A mind is a terrible thing to lose.”




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Buying Genocide

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“Socialists always run out of other people’s money. It’s quite characteristic of them.”       
—Baroness Thatcher

How are totalitarian regimes able to control the populace and gain its support for even the vilest programs?

In an earlier piece, I suggested that there are three basic methods employed by compliance agents — the people who try to get a targeted group to comply with their wishes — to get what they want. These I termed power, purchase, and persuasion.

The Tools of Compliance

By power I mean force, threat of force, or theft. Of course, the attempt at force may not succeed, if the agent has insufficient strength to overpower — or insufficient guile to successfully steal from — the target.

By purchase I mean trading something that the agent and the target both value — money, labor, physical objects. Again, the attempt may fail — the agent may not have enough of what the target values to pay the target’s price, or they may be unable to agree upon a price. By persuasion (or promotion), I mean offering reasons (other than threats of force or attempted bargaining) to the target. If Fred’s doctor urges Fred to stop smoking or face an increased chance of cancer, the doctor is not threatening Fred — after all, the doctor won’t inflict the cancer on Fred; the cigarettes will.[1] Nor is the doctor bargaining with Fred. He is “arguing from consequences”; that is, he is arguing that Fred’s behavior will objectively hurt Fred, so Fred ought to stop that behavior. Even if Fred’s doctor chose not to argue rationally but decided to manipulate Fred emotionally — say, by showing Fred pictures of his kids crying out “Daddy, please don’t die!” — the doctor is neither threatening nor bargaining.

For one thing, it exonerates the rest of the world for its complicity in the Holocaust, and allows us all to sigh in relief that “it could never happen here.”

An interesting point from cognitive psychology that I’ve heard Matt Ridley[2] make is that while nonhuman animals often use force and theft to get what they want from other animals, they don’t, strictly speaking, trade with others, in the sense of giving something they value to get something they value more. As Adam Smith put it, “Nobody ever saw a dog make a fair and deliberate exchange of one bone for another with another dog.”[3] Applying the point about persuasion to animals: I have never seen a dog offer an argument to get another dog to do something — though a dog does seem to know how to appear or sound pitiable to its owners when it wants something.

Of course, power, purchase, and persuasion are not perfectly distinct categories, as I noted earlier. But they allow us to pursue an interesting discussion — one going back for seven decades in the search for explanations of Nazi totalitarianism. A critical review of this discussion, especially as it appears in a number of distinguished works of the 21st century, provides a framework in which key concepts and controversies can be seen.

The Goldhagen Dispute: Why Did Germans Support the Nazi regime?

Let’s start with an insightful paper by Alexander Groth, called “Demonizing the Germans.” In this paper, the estimable Professor Groth — himself a Holocaust survivor — takes up the issue of the culpability of the German public for the crimes of the Nazis. He reviews two books: Daniel Goldhagen’s Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (1996) and Robert Gellately’s Backing Hitler: Consent and Coercion in Nazi Germany (2001). Both these books, Groth says, put forward the view that Hitler’s policies during the 12 years of his regime were based on the “spontaneous preferences” of the German public, not the regime’s “coercion and manipulation.” the regime’s use of the power delivered by its police state and the persuasion delivered by its propaganda machine (118).

Groth concedes that the regime’s policies required the collusion and cooperation of millions of Germans. But he criticizes the authors for pushing their cases beyond logic and evidence. Indeed, Groth holds that Goldhagen’s view of Germans is “almost racist in its sweeping character” (119). He takes Goldhagen to mean that “the Germans let Hitler and his minions, soldiers, policemen, and bureaucrats, kill the Jews because they fundamentally agreed with Hitler that this was a good idea” (119).

While the average German said nothing about the Nazi destruction of the Jews, neither did FDR or Churchill, even though the latter were far freer to speak out.

Groth has many problems with this view. For one thing, it exonerates the rest of the world for its complicity in the Holocaust, and allows us all to sigh in relief that “it could never happen here.” And he points to a logical gap. Everyone, Goldhagen included, recognizes that the Germans involved in the execution of the Holocaust — the men involved in designing the scheme, arresting and transporting the victims, and running the death camps — could at most amount to 5% of the population of 80 million. The other Germans, while not active, did nothing to stop the killings, but passively accepted them. But Groth points out that while the rest of the Germans did not publicly mourn or protest the mass murder of the Jews, the most reasonable conclusion from that absence of protest would be that they just didn’t care, not that they supported it. I would sharpen the point by adding that while there were no massive protests against the Final Solution, there were no massive rallies in support of it either.

Here Groth rightly notes that Goldhagen fails to distinguish among the German non-genocidaires:

. . . those who could not care less; those who rejoiced in Hitler’s policies; those who were appalled by those policies but feared the risks of speaking out; those who had a variety of doubts and reservations about Hitler’s treatment of the Jews but who also were not willing to jeopardize their lives, their careers, and their families to voice them; and, finally, the many Germans confused and misled by Nazi propaganda and information controls. After all, the Nazis never admitted publicly that they were exterminating the Jews. They were just resettling them in the East. (120)

And Groth adds to this point the observation that while the average German said nothing about the Nazi destruction of the Jews, neither did FDR or Churchill, even though the latter were far freer to speak out, far more informed, and far more protected from reprisals. Were FDR and Churchill “eliminationist anti-Semites” as well?[4]

Groth also criticizes Goldhagen’s claim that the vitriolic German anti-Semitic literature of the 19th and early 20th centuries was unmatched in Europe or elsewhere. Groth observes that Goldhagen adduces no evidence for this claim, and mentions similar anti-Semitic literature in Poland and Rumania. (I will suggest later in this piece that Groth is overlooking something about German anti-Semitism that was unique.)

To Goldhagen’s point that whatever anti-Semitism existed elsewhere in Europe, it was only in Germany that an openly anti-Semitic party was elected to power, Groth replies by noting that in the three Reichstag elections prior to April 1933, the Nazis received only 37%, 33%, and 44% — that last vote coming with the full aid of SA thugs in the streets, intimidating voters. Furthermore, while Hitler’s anti-Semitism is blatant in Mein Kampf, how many voters had read the book? How many dismissed much of it as exaggerated? How many who shared the Nazi antipathy towards Jews favored not merely mass murder, but, say, encouraging Jews to convert to Christianity or emigrate? Remember: from 1933 until the outset of the war or later, the Nazis focused on pressuring Jews to leave. Groth rightly notes that there were no exit polls at the time, so we cannot say why those who voted Nazi did so. Moreover, Theodore Abel’s sociological study of essays by 600 Nazi Party members in the period shortly after Hitler achieved power, describing why they joined the party, showed that only about 36% stated anti-Semitic motives.

From 1871 (when Germany unified) to 1933, Jews were far better off in Germany than in Eastern Europe by any measure — and there were no pogroms in Germany.

Groth cites two scholars in support of his view. First he quotes Sarah Gordon[5] saying that even among Party members, there was considerable diversity of opinion on the “Jewish question,” and only a “small percentage” shared Hitler’s “paranoid” anti-Semitism. She claims that more Germans disapproved of Hitler’s anti-Jewish policies than supported them. And, she adds, Hitler’s central role in the Holocaust should never be underestimated. She further points out that Germans faced a (minimum) of two years in a concentration camp for aiding Jews or publicly supporting their cause — a fate much worse than regular jail.

Groth then quotes William Sheridan Allen,[6] who focused his research on the Nazi takeover of the town of Thalburg. Allen reported that most of the townspeople were relatively unsympathetic to the anti-Semitism of the Nazi ideology. Jews at all class levels were well integrated into the town’s society. Though there was “abstract” anti-Semitism — a general dislike of Jewishness that showed up in jokes or expressions of distaste, many people just ignored the anti-Semitic aspect of the Party when voting for it. Indeed, “Thalburgers were drawn to anti-Semitism because they were drawn to Nazism, not the other way around” (127).

And Groth quotes from Saul Friedlander[7] the idea that during the 1930s the German population didn’t demand anti-Jewish measures; in fact, those who supported eliminationist anti-Semitism were only a segment of the Party.

Groth next makes the point that if there were a native German eliminationist anti-Semitism, why didn’t it show up prior to 1933? Indeed, from 1871 (when Germany unified) to 1933, Jews were far better off in Germany than in Eastern Europe by any measure — access to education, participation in social and political institutions, or rate of intermarriage — and there were no pogroms in Germany as there were in Russia and Eastern Europe.

He also cites a survey of 500 German POWs done in 1944. Among men below 30, 33% said anti-Semitism was “helpful” to Germany, while 44% said it was “harmful.” Among men over 30, only 17% agreed it was “helpful” while 60% saw it as “harmful.” (Twenty-three percent of both groups did not reply to the question.) And he notes that when the violence started, be it Kristallnacht in 1938 or the killing camps and Einsatzgruppen later, it was the police, the SS, the SA, and (less often) the regular military who did the killing, not “frenzied, out-of-control German civilian mobs” (130).

Even if the primarily responsibility for the Holocaust lies with the leadership, the question of popular support still remains.

Groth adds that post-WWII, while Germany has seen some Skinhead and neo-Nazi groups, there has been no mass violence against the Jews, but only “scattered” attacks against synagogues, Jewish cemeteries, and individual Jews. And political parties espousing anti-Semitism have done poorly in German elections.

Here are some points to ponder.

Regarding the Abel analysis of 600 essays about why Party members joined the NSDAP: the fact that only 36% said they were anti-Semitic doesn’t mean that the rest weren’t. If you surveyed Republicans and asked why they are in the party, perhaps two-thirds would neglect to mention “lower taxes.” But if you explicitly asked whether they favored lower taxes, probably 98% would say yes. Similarly, if you asked Democrats why they support the party perhaps two-thirds would not mention increasing taxes on the rich. But if you asked whether they favored that policy, again, probably 98% would say they did.

Regarding Sarah Gordon, to the effect that few Germans were paranoid anti-Semites of “Hitler’s ilk”: Gordon seems as data-light as Goldhagen. What Groth might have looked at is data on attendance at the Nazi anti-Semitic movies. For example, Jud Süss (1940), which pushed the most extreme anti-Semitism, was the sixth most popular film made during the Third Reich. 20.3 million Germans paid for tickets, about 40% of the adults in greater Germany. Compare the big Spielberg hit, Saving Private Ryan (1998), which was seen by about 20% of American adults at the time, and you see how attractive the anti-Semitic film was.

Regarding Groth’s and Gordon’s point that Hitler played a “central role” in the Holocaust: just why did Hitler and his myrmidons favor extermination of the Jews (at seemingly great cost towards the end of the war)? Was it just, say, schizophrenic paranoia? Was Hitler ever diagnosed as a paranoid, or hospitalized for psychotic symptoms? Or was it a deep ideological conviction, and, if so, why? Even if the primarily responsibility for the Holocaust lies with the leadership, the question of popular support still remains.

Regarding Groth’s point — a completely obvious one — that prior to Hitler coming to power, Germany historically had higher levels of integration of Jews into society, and no pogroms: perhaps the German government (for various reasons) did not allow pogroms, whereas the Tsarist government allowed (and even facilitated) them. And Jews were as well integrated in most of the rest of Western Europe (especially England, which had elected a Jew as Prime Minister as early as 1868), and suffered no pogroms either — but only Germany ever freely elected (by a strong plurality) an openly and deeply anti-Semitic party.

The SS, SA and police were formed from civilian volunteers. And the populace often cooperated with the Gestapo and other police agencies, and did nothing to impede the mass atrocities.

Regarding Groth’s citation (following Gordon) of the survey of 500 German POWs in 1944: the sample size is small (the margin of error is 5%), and its randomness is questionable — maybe German soldiers with attitudes more sympathetic to the Allies surrendered to them more readily. Worse, there is an obvious problem with interviewer error. The Germans were exposing their feelings to — their captors, who the POWs knew were profoundly anti-Nazi. Did those POWs feel free to answer honestly? We need to remember the classic illustration cited by Darrel Huff.[8] During WWII, Gallup interviewed African Americans as to whether they thought they would be treated worse by society if the Japanese won the war, and found that nearly double the number answered in the negative when the interviewer was black compared to those asked by a white interviewer.

Regarding Groth’s point that the actual killers — the genocidaires — of Jews were not civilians, but members of the SS, SA, regular police, and elements of the regular military: the SS, SA and police were formed from civilian volunteers. (The SA and SS had their origins in the Freikorps, organized militias that fought revolutionaries in the German streets after WWI.) And again, the populace often cooperated with the Gestapo and other police agencies, and did nothing to impede the mass atrocities.

Finally, regarding Groth’s point that after the 1940s, while Germany has seen skinheads and neo-Nazis, and occasionally attacks on Jewish cemeteries, synagogues, and individuals, there have been no governmental attacks: this is a weak point indeed. By the end of WWII most of Germany had been devastated, with millions of its civilians killed; the world came to know the extent of the Holocaust and condemned Germany accordingly, and the county was dismembered and occupied for decades. Of course even the most devout anti-Semites would be deterred from repeating their crimes. Moreover, post-WWII Germany was virtually devoid of Jewish citizens — even now, at about 120,000, there would be few left for modern eliminationist anti-Semites to eliminate.

In sum, while Groth offers some good criticisms of Goldhagen, they are in my view hardly definitive.

I turn now to Groth’s views on Robert Gellately’s work. Groth accuses Gellately of a flawed analysis of the data and a “lack of familiarity with the literature of totalitarianism.” This seems harsh, especially considering that both Gellately’s books were published not though some obscure press, but through Oxford University Press. But let us consider the rival contentions.

The Gestapo’s power was based not so much on its numbers as on its power to disrupt citizens’ lives, its arbitrary operations, its lack of public accountability, its exemption from the rule of law, and its known tendency to torture and murder freely.

Gellately argued in an early book[9] that the Gestapo was in fact “a terribly undermanned institution, incapable of policing German society on its own,” so it relied heavily on informants (Groth 131).

To this, Groth makes some cogent replies. The first is more of a dig: if contemporary American students and faculty report feeling intimidated on college campuses by political correctness, it is strange to think that the Germans would not have feared the Gestapo. Moreover, the Gestapo’s power was based not so much on its numbers as on its power to disrupt citizens’ lives, its arbitrary operations, its lack of public accountability, its exemption from the rule of law, and its known tendency to torture and murder freely.

Moreover, the Gestapo was interconnected with the SS, a very large organization — Groth doesn’t mention it, but the SS at its peak numbered 850,000, which is roughly the number of all local police in the contemporary US, a nation about four times the population of Nazi Germany. And the Gestapo worked in secret. So even if it had relatively few agents, the public could have no clue about that, or about the number of Gestapo informants among the public.

Groth is correct about the power of the German police state, and that will be the focus of the third in this series of essays for this journal. But he is on shakier ground when he critiques Gellately’s more recent book, Backing Hitler: Consent and Coercion in Nazi Germany.[10] Gellately asks why the German people almost uniformly followed Hitler from 1933 to the bitter end in 1945. Groth notes that while Gellately acknowledges the role of the Nazi propaganda machine, its strict control of communication (read: its silencing of all opposition), and its institutions of coercion and terror, Gellately concludes that the Nazi regime rested mainly on consensus. And this Groth does not accept.

By the outbreak of the war, the Nazi form of anti-Semitism had taken hold.

Gellately argues that besides using coercion and propaganda, Hitler was much more interested in getting and keeping popular support. So, unlike his rival Stalin, Hitler did not target large parts of his country’s population, confining his police state apparatus to the regime’s enemies and its targeted minorities. The regime sought popular backing until the very end of its existence. And Gellately adds that “many Germans went along, not because they were mindless robots, but because they convinced themselves of Hitler’s advantages and the ‘positive’ side of the new dictatorship” (136).

Furthermore, as Gellately points out, certainly from 1933 to 1939, the regime could show apparent successes in reclaiming lost territory, dramatically lowering unemployment, making more consumer goods available, and building out infrastructure. Gellately points to the rise in Nazi Party membership from about 130,000 in 1930 to 850,000 in 1933, and the SA’s growth from 77,000 in 1931 to 3 million in 1934. In the 1932 and 1933 plebiscites, the Nazis won the plurality of the vote. Gellately further argues that by the outbreak of the war, the Nazi form of anti-Semitism had taken hold.

Gellately additionally notes that unlike most other totalitarian regimes, the Nazis openly discussed their coercive system — in particular, their concentration camp system. I would add that it is striking that while most Soviet camps were hidden away in Siberia or elsewhere in the hinterlands, the Nazis opened their first camps near big cities. Similarly, the Nazis were quite open about their anti-Jewish measures and legislation, discussing these laws and rulings in widely circulated papers. The Nuremberg Laws (passed in 1935) were well discussed and widely publicized — as they would have to be: the populace would have to know that having sexual relations with Jews was now forbidden.

Gellately observes that German propaganda was well-crafted and effective, rather than crude and obvious. Here I would note that Goebbels articulated what is now widely acknowledged by propaganda theorists: effective propaganda is often if not typically an exercise in “confirmation bias”: it works best if it takes preexisting attitudes and beliefs and amplifies them, reconstructs them, and uses them to support something. He adds that the regime received thousands of letters a day, which seems to show that the populace supported or at least felt comfortable with it.

Groth offers a welter of criticisms of Gellately’s claims. He starts by noting that Nazi electoral successes actually dropped from 37.3% to 33.1% in the 1932 elections. Yes, a later election, after Hitler was appointed chancellor, showed a plurality of 43.9%, but that (Groth avers) was likely because of the pressure the SA could bring on voters. And in later plebiscites (in late 1933 and 1934), all opposition had been outlawed. Moreover, Groth points out that Stalin routinely won elections with 99% of the vote.

While most Soviet camps were hidden away in Siberia or elsewhere in the hinterlands, the Nazis opened their first camps near big cities.

To the point about the Nazi Party’s membership increasing, Groth replies that the postwar Soviet-backed Polish communist party membership rose from 20,000 to 1 million. As to the Nazis wanting popular backing, Groth replies that Stalin’s regime did as well.

Regarding Gellately’s claim that Hitler didn’t confront large segments of the German population in the way Stalin did the Soviet population, Groth scathingly replies that Hitler abolished trade unions and outlawed strikes — wasn’t that confrontational? To Gellately’s point about the Nazi anti-Semitism having taken root among Germans, Groth cites the reports of two senior British and American diplomats in Germany at the time of Kristallnacht (November 9, 1938) to the effect that all the citizens they talked to disapproved of the event completely.

Discussing the Nazis’ willingness to disclose the nature of their concentration camps system, Groth rightly observes that this was far short of full disclosure. The camps were portrayed as benignly reeducating communists, socialists, and criminals, and (later) as relocating Jews to the East for their own protection. The public was never told of the torture, rape, and murder that took place in those camps. Groth makes the telling point that not once did Hitler or his Propaganda Ministry ever acknowledge that they were systematically killing the Jews and other targeted groups.

Groth goes on to criticize Gellately’s account of Nazi propaganda as being sophisticated (not crude brainwashing and manipulation) and appealing to preexisting German beliefs and desires. Groth replies that this is a truism: any propaganda appeals to what people believe and desire — certainly Soviet, British, and American propaganda did. In this Groth is touching upon the point made earlier, that propaganda is often an exercise in confirmation bias. But he adds to this point another that is interesting:

Here one needs to take note of the symbiotic relationship between “propaganda” and “terror” in order to appreciate why the balance of these factors would predispose a great many people in Germany to deny and repress knowledge of Nazi crimes. At the top of the political system, Hitler and Goebbels set the norms of what it was that made a “good Nazi” and a “good German.” These norms were constantly replayed by the mass of official media — everything from radio to wall posters. Certainly, an “uncompromising hostility” to the Jews was one of the most important norms; ultimately in Hitler’s view, they were Germany’s most implacable and dangerous enemy. Any conspicuous, publicly, or even privately manifested deviation from the norms could potentially bring significant punishment to those involved. (142)

So if Germans didn’t publically defend Jews, Groth suggests, it is because any who did faced brutal treatment. And — he further suggests — the best way for an ordinary (non-anti-Semitic) German to bow to the authority of the regime but still maintain a favorable self-image would be to deliberately not think about the fate of the Jews. Actually, Groth could have invoked cognitive dissonance theory: faced with his belief in tolerance and his awareness that in not helping Jews he is contributing to their destruction, the tolerant German might simply tune out any new, unpleasant information. (Confirmation bias again . . .)

Groth next criticizes Gellately’s inferring from the fact that the Nazi regime received thousands of letters daily the conclusion that the German public was involved and interested rather than passive or powerless, and that the regime could be manipulated from below. Groth replies that the letters could just be “requests for personal favors, petty complaints, protestations of loyalty, and denunciations of other people” (143). And he criticizes Gellately’s data about citizen voluntary reports to the regime. All Gellately can point to is 403 total reports over a 12-year period — which is statistically insignificant, considering the population of Germany.

Any propaganda appeals to what people believe and desire — certainly Soviet, British, and American propaganda did.

Further, Groth notes that when the Gestapo acted, it didn’t wait for letters and other tips. When the von Stauffenberg assassination attempt failed, the Gestapo rapidly arrested the participants and used unrestrained torture, reprisals on families, and so on to get the names of the conspirators and their supporters. One estimate is that the Gestapo rapidly killed 5,000 people, most by simple fiat (no trials), including whole families of the principals.

Finally, Groth wonders whether, even supposing that 60% of the Germans continued to support Hitler even after Stalingrad, coercion wasn’t needed to suppress dissent in the other 40%. He notes that while the Vietnam War still had majority popular support in 1967, the street protests and the support given Senator McCarthy were enough to convince President Johnson not to run for reelection.

Groth agrees with Sarah Gordon that the regime didn’t so much rely on German public opinion as neutralize it, with a propaganda campaign aided by a communication monopoly, and the dictatorial coercion of the police state. And as the conclusion of the war became obvious to the whole population, and the obliteration of German cities more extensive, that coercion became all-important.

Groth concludes with an attack against Goldhagen and Gellately, holding that their view

validates a Nazi or neo-Nazi interpretation of the Fuhrer. He was a great leader of the German people because he carried out, or at least attempted to carry out, the most sincere and universal wishes and aspirations of the whole German nation.

In remembrance of Oskar Schindler, Hans and Sophie Scholl, Monsignor Bernhard Lichtenberg, Claus von Stauffenberg, and Konrad Adenauer, Hitler is not entitled to this presumption. Some facts about German public opinion on the Third Reich may perhaps forever remain in dispute. But holding a pistol to the head of a captive has certain moral . . . consequences for the assailant which cannot be removed by the argument that the pistol was not very large, and that if the captive had only been a little braver and more enterprising, it could have been dislodged. (152–3)

While I deeply respect Groth’s fair-mindedness regarding the question of German anti-Semitism and complicity in Nazi crimes (especially considering his personal story), let me make a few rebuttals to Groth’s attacks on Gellately, before presenting a deeper critique.

Let’s start with Groth’s criticism of Gellately’s general claim that while the regime’s propaganda machine and its coercive institutions helped keep people in line, the Nazi regime rested mainly on consensus. This claim Groth dismisses as “flawed analysis,” but is it? Hitler’s regime, after achieving power, dramatically delivered on its promises. It lowered unemployment (which dropped from over 30% in 1933 to virtually nothing by 1939), in great measure from a massive buildup in military and in infrastructure spending. This is what Gellately meant when he suggested that the regime’s real and seeming successes from 1933 to 1939 built popular support.

Hitler, sitting in his jail cell after a failed, farcical putsch, realized that both the Communist Left and the Nazi Right were unable to overthrow the government by revolution.

Imagine you are a German worker inclined to internationalism, socialism, or communism, and are initially skeptical about National Socialism. But Hitler achieves power, and lo! He apparently fulfills his economic promises. You and your friends have work, bread, sausage! Again, suppose you are a German businessperson, very nationalistic, but skeptical of (in your view) a group of rowdies led by an ex-corporal who don’t seem to represent German Glory, and call openly for socialism. But they achieve power, and behold! They do rebuild the military in defiance of the Treaty of Versailles, take back the Ruhr and annex the Sudetenland, and achieve union with Austria. In 1939, war does break out and you see the regime rapidly take half of Poland, and rapidly defeat France — erasing in your mind an historic grievance. You might well now support this regime you initially opposed.

Groth’s argument that Stalin was like Hitler in that Stalin, too, wanted popular support seems dismissive if not downright disingenuous. One obvious and huge difference between the two figures is that the Bolsheviks never once faced fair elections with real opponents. Lenin won a revolution, and Stalin climbed to the top of the resulting Byzantine power structure by adroitly killing off competitors. But Hitler, sitting in his jail cell after a failed, farcical putsch, realized that both the Communist Left and the Nazi Right were unable to overthrow the government by revolution — so he would have to appeal for votes. And Hitler and the Party hierarchy crafted an ideology accordingly — based on the identification of an International Jewish Order as the enemy, a stab-in-the-back Nazi Historical Narrative, protectionist economics, and socialist envy of the rich — together with a political platform built on ending unemployment and restoring the national military.

To Groth’s point that Stalin won 99% of the vote, whereas Hitler won only 44% in the last election with other parties allowed, and the 44% is suspect because of the activity of the SA: these points seem contradictory. The fact that the Nazis polled only 44% suggests that the election was fairly free after all. More generally, the elections make it clear that the Nazis were able to win the plurality of votes in free elections in margins between 33% and 40%. Groth needs to ask whether the Bolsheviks could have ever done that well at any point.

Any non-Jewish German couple being given an apartment previously owned by Jews would have to know or strongly suspect that the rightful owners would not be reclaiming their property.

Regarding Groth’s comments about those British and American diplomats in Germany at the time of Kristallnacht: again, we need to remember the problem of interviewer bias. Would the average German feel comfortable in expressing support for violent anti-Semitic demonstrations to foreign diplomats — especially from England and America, which according to Nazi ideology were bastions of International Jewish financial power? Indeed, did these diplomats talk to any German workers at all, and if so, how free would those workers have felt in answering the foreign diplomats?

To Groth’s point that the regime never admitted to its own people that it was killing the Jews, two replies are in order. First, any non-Jewish German couple being given furniture or (more obviously) an apartment previously owned by Jews would have to know or strongly suspect that the rightful owners would not be reclaiming their property, and would surely have known or suspected why. But if the people were so completely cowed by the regime’s police and convinced by propaganda, why wouldn’t it just tell the citizens the truth?

Moreover, I think Groth has the relationship between power (coercion) and propaganda somewhat muddled. The relation is symbiotic, but not as he describes it. The propaganda campaign helped solidify popular support for the regime, and make people compliant to its agenda. However, coercion doesn’t so make people want to watch propaganda — it removes the most effective weapon against propaganda: free speech. Specifically, absent the use of power (coercion, terror) to silence all countervailing views, the propaganda of any regime will not be effective long-term.

Critical voices can expose propaganda for what it is — sunlight disinfects — and this is why the coercive power of any authoritarian regime enables its propaganda to be effective. Imagine the damage the satirical power of a Saturday Night Live show could have inflicted on the Nazi Party and its ideology. Imagine if critics had been allowed to do their own documentary on Judaism and the Jews in reply to The Eternal Jew. Groth himself touches upon this when he says:

As long as the Nazis could maintain a communication monopoly supported by terror, the issue of their Jewish policy could be framed for public consumption in such euphemistic terms as “removal of Jews from Germany” and “resettlement of Jews in the East.” An opposition . . . would have framed the issue as mass murder and state-sponsored criminal mayhem. (150)

Finally, to Groth’s criticism that (Goldhagen’s and) Gellately’s view validates the Nazi idea of Hitler as hero, and that this betrays the memory of people who struggled against the regime, two replies. First, Groth cites six anti-regime fighters. But that was six out of 80 million people over a 12-year period — not much of a resistance. And the attempt on Hitler’s life involved military men who were worried about Hitler’s losing the war, not plagued by desperation to save the Jews. Second, maintaining that the very notion that Hitler delivered the goods to the average (non-Jewish) German validates the view of Hitler as a great leader is absurd. Yes, Hitler gave Germans the goods, but they were goods stolen from murdered people and colonized countries. That hardly “validates” Hitler.

Coercion doesn’t so make people want to watch propaganda — it removes the most effective weapon against propaganda: free speech.

In sum, I agree with Groth that the move to tar all or most Germans of the time with some special murderous kind of anti-Semitism is wrong. However, I don’t think he quite makes the case that there wasn’t anything unique about German anti-Semitic ideology. I will return to this point. But even more questionable is Groth’s feeling that Gellately was wrong to say the regime rested on consensus. To be fair to both Gellately and Groth, they were writing a few years before a more powerful explanation of the general support for the regime among the people: the regime purchased its support. Just how and how much the regime did this was not explained deeply until Götz Aly’s seminal research, to which I now turn.



[1] Doctors don’t typically bargain with patients in the sense of “If you quit smoking, I will lower my fees by 10%.” They may bargain about method of payment, and give discounts for fees paid by cash. But of course insurance companies routinely offer lower fees to patients who avoid risky behaviors.

[2] Listen to the Ridley interview here.

[3] The Wealth of Nations, book I, chapter 2.

[4] Groth doesn’t mention this, but in 1943 Polish underground hero Jan Karski told both leaders in person that the Jews were being exterminated.

[5] From her book: Hitler, Germans and the Jewish Question, Princeton: Princeton University Press (1984).

[6] From his book: The Experience of a Single German Town 1930–1935, New York: New Viewpoints (1965).

[7] From Friedlander’s book: Nazi Germany and the Jews, Vol. 1: The Years of Persecution, 1933–1939, New York: Harper Collins (1997).

[8] In his classic book, How to Lie with Statistics, New York: Norton (1954).

[9] The Gestapo and German Society: Enforcing the Racial Policy 1933–1945, Oxford: Oxford University Press (1990).

[10] Oxford: Oxford University Press (2001).


Editor's Note: This review-essay is part 1 of a three-part series.



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Music Hath Charms

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“What is the soundtrack of your life?”

Shedrick “B,” an inmate presenter at the TEDx Sing Sing I helped organize a few years ago, asked that question of the audience of 100 or so civilians and inmates. He went on to explain that music has the power to transport him back to certain moments in his life: holding hands with his first girlfriend, ice skating at Rockefeller Center, Christmas Eve with his family, being booked for the crime that landed him in prison. When he hears the songs he remembers, he returns to those moments, good and bad.

With the invention of the MP3 player and iPhone, music could indeed become the soundtrack of our lives. Suddenly we had instant access to thousands of songs that used to be piled in a shoebox or stored in the wrong jewel case in a closet back home. And with music-streaming platforms like Pandora, we have access to thousands more songs that we haven’t even purchased. We can listen to music when we’re walking, driving, biking, talking, waiting, even sleeping. When I go hiking, the station I select — sometimes upbeat ’60s, sometimes a mellow Coldplay, sometimes classical or Broadway or hymns — controls my mood and thus my experience. It was inevitable that a movie would take that ubiquity and turn it into a giant of a movie. That movie is Baby Driver.

Baby isn’t just skilled; he’s a veritable savant, and we barely hang onto our seats as he hightails the robbers through the streets of Atlanta.

Other films have toyed with the concept; Woody Allen is known for the jazz pieces he selects for his soundtracks. Music stands out in Birdman (or The Unexpected Virtue of Ignorance) (2014). Peter Quill (Chris Pratt), the protagonist in Guardians of the Galaxy (also 2014), listens to an ’80s mix tape his mother made for him as he gathers the energy to save the universe. The soundtrack was the best part of Guardians, and fans couldn’t wait to hear the selections for Guardians Vol. 2. Even calling it “Volume 2,” like an album, instead of “Part 2,” like a movie, acknowledges the importance of the music as a main ingredient of the franchise’s popularity.

But music isn’t just the soundtrack of Baby Driver; it’s the driving force. Baby (Ansel Elgort) can’t function unless his earbuds are delivering exactly the right playlist of high-octane music to his brain, even when his life depends on getting the hell out of there now. Baby is the highly skilled getaway driver for the mastermind, called Doc (Kevin Spacey), behind a series of bank and post office heists. He isn’t just skilled; he’s a veritable savant, and we barely hang onto our seats as he hightails the robbers through the streets of Atlanta while dodging cars, cops, and bullets. The music is perfectly synchronized with the actions and gestures of the characters, even when they’re sitting around a table having a conversation. It all creates the sense that we’re watching a choreographed concert as much as a movie.

Despite his childlike name, Baby is cooler than cool. No matter how many times he loses his sunglasses (or someone takes them) he has another pair in his pocket to replace them. He carries multiple iPods loaded with music for any occasion, and he doesn’t flinch when his life is endangered. When he isn’t driving like a stunt man, he’s running through streets and leaping over benches and stairs like a parkour expert.

Director Edgar Wright (Shaun of the Dead, Hot Fuzz) heightens the fun with unexpected edits and background details. As Baby leaps through the streets to a chorus of “Yeah, Yeah, Yeah,” the word “Yeah” is seen spray-painted on three successive trees, exactly in time to the music. In the window of the bank that’s being robbed, we see a poster advertising college loans — a kind of bank robbery itself, and a life sentence for many students who get in over their heads. When Baby is at a laundromat, the clothes cycling around in the dryer become a 45 record spinning us into the next scene. Baby uses sign language to communicate with his rheumy-eyed foster father Joseph (CJ Jones) who looks blind, not deaf.

When he isn’t driving like a stunt man, he’s running through streets and leaping over benches and stairs like a parkour expert.

We soon learn that Baby isn’t really a bad guy at heart. He’s gentle and thoughtful with Joseph. He’s in love with a sweet young waitress (Lily James), who is just as anxious to blow this town and start a new life as he is. But he owes a debt to Doc, the cool and sadistic mastermind, and he has to do one last job to be free of the debt. If you know anything at all about film scripts, you know that the words “one last job” can be deadly.

So Baby is enlisted for one last heist, driving Doc’s newly organized team (John Hamm, Jamie Foxx, Elza Gonzalez); as expected, things begin to go deliciously, suspensefully wrong. Baby takes a few wrong turns and a few right ones as he tries to extricate himself from Doc’s employ while protecting the two people he loves — and always with exactly the right music and the right pair of sunglasses to motivate him for the job. In my opinion the film jumps the shark toward the end, when a glaring red haze demonizes a particular character and culminates in the virtual fires of hell, but I can forgive that over-the-top indulgence. The entire film is over the top, and that’s what’s keeping it at the top of the box office. Baby Driver is a winner from the word “Go.”




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The Courts and the Second Amendment

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In 2008, the Supreme Court started a new era of second amendment jurisprudence.

This is no exaggeration. When the Heller opinion was published (District of Columbia v. Heller, 554 U.S. 570 [2008]), I was surprised to learn that the Court had never decided whether the Second Amendment gave individuals (as opposed to collectives, such as militias) any right to keep or carry firearms. That had been an open question. So, Heller was a big deal, and the justices knew it. The case opened a can of worms — hundreds of plaintiffs would try to wriggle out of states’ prohibitions on the possession and carrying of guns. However, the case said very little about the extent of the right or how it could be limited by law.

In restricting private ownership, possession, and use of guns, the D.C. laws went almost as far as imaginable without imposing a complete ban.

How could a legal opinion say so much and so little at the same time? It was the factual context of the decision that made this possible. When I was in law school I heard the maxim “hard cases make bad law,” meaning that cases of extraordinarily sympathetic circumstances (think widows and orphans) might motivate a lawmaker or judge to create a rule that had bad unintended consequences when applied generally. I think that the majority in Heller saw the case as sort of the opposite: an easy case to make good law. The plaintiff was challenging the laws of the District of Columbia. In restricting private ownership, possession, and use of guns, the D.C. laws went almost as far as imaginable without imposing a complete ban. Private ownership of handguns was banned. Rifles and shotguns might be kept at home but locked or disassembled, in other words, not useful in an emergency.

Finding an individual right in the Second Amendment was a big step. But if you wanted to make that big step as small as possible, the facts behind Heller were just about perfect.

What Heller said was that the Second Amendment gave the plaintiff some kind of individual, civil right, and that right was enough to invalidate D.C.’s heavy restrictions. It was a very limited application of an individual right. Even so, the opinion, a 5–4 split of the Court, drew sharp criticism from the dissenting minority and also from some very good scholars, including Richard Posner, generally thought to be a conservative from the “law & economics” school of jurisprudence. Critics accused the conservative majority of being unprincipled by practicing judicial activism instead of the restraint they often championed.

How far do the rights established in Heller go? What other restrictions on guns might be unconstitutional? Nobody knows. The individual right may be very modestly interpreted. Maybe every other gun law in the country is still constitutionally permitted.

Heller must mean a little bit more than sitting in your bedroom with a shotgun. Eventually, starkly contrasting circuit court cases will force the Supreme Court to say more.

The lower courts and the circuit courts of appeal have had to deal with Heller many, many times. The appeal of California’s Peruta case (Peruta v. County of San Diego, 824 F.3d 919 [9th Cir. 2016] [en banc]) gave the Supreme Court an interesting opportunity to apply Heller. In Peruta, the Ninth Circuit said that the Constitution does not give individuals any right to carry concealed firearms. In California, concealed carry requires a license, granted only for “good cause.” Licenses are rarely and, the plaintiffs would say, arbitrarily granted. Also, open carry is generally banned, by California Assembly Bill No. 144. The Ninth Circuit explicitly declined to say whether banning open carry was constitutional. Therefore, Peruta presents a nice little web of questions. Can all public carry be banned? Maybe. Heller was about keeping guns at home. But its principles seem to go much farther, once this is determined to be an individual right: “the right of the people to keep and bear Arms, shall not be infringed.” Can concealed carry be banned when open carry is permitted? Can open carry be banned when concealed carry is permitted? Can open carry be banned while concealed carry is extremely limited (the current law in California)?

We know that the Supreme Court does not want to answer any of these questions right now, because on June 26 it declined to hear the appeal. That means fewer than four justices voted to take the case. It does not mean they agree with the Ninth Circuit or that they disagree.

I guess that, if forced to decide, the Court would find something wrong with California’s restrictions. Heller must mean a little bit more than sitting in your bedroom with a shotgun. Eventually, starkly contrasting circuit court cases will force the Supreme Court to say more. For now, outside of a few states like California, the political battle for gun rights is way ahead of the courts. All but about 15 states have either “shall issue” licensing or no license requirement at all for the concealed carry of handguns.




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The Right to Be Let Alone

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It is the best of times for government snooping and surveillance.

It is the worst of times for privacy and the Fourth Amendment.

The surveillance state should be dismantled, and the right to be let alone should be restored as the glory of the Republic.

This paper explains why and how.

Why Privacy Matters

The right to be let alone from government snooping or surveillance is the most cherished right among civilized peoples.

Privacy encourages creativity and spontaneity. It facilitates growth, learning, and maturation through a process of trial and error without risk of embarrassment.

Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States, 277 U.S. 438 (1928) (dissenting opinion):

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Privacy is a cornerstone of a Republic where the people censure government; government does not censure the people. Consider the following.

No person on paper is clean.

Citizens will refrain from exposing and criticizing government fraud, waste, abuse, or lawlessness if they fear the government will retaliate by disclosing or sharing negative or embarrassing information from dossiers assembled through indiscriminate surveillance. They will become docile — a great menace to freedom according to Justice Brandeis in Whitney v. California, 274 U.S. 357 (1927) (concurring opinion). Edward R. Murrow, the scourge of Senator Joseph McCarthy (R-WI) similarly observed: “A nation of sheep will beget a government of wolves.”

Privacy was the spark of the American Revolution.

The urgency of citizen scrutiny of government has heightened as the size of government has grown from a small acorn in 1790 with a budget of less than $10 million and a few employees to a giant oak in 2017 with a budget exceeding $4 trillion and millions of employees. Further, Congress has virtually ceased to exercise oversight because of institutional sloth and incompetence coupled with a craving to escape responsibility. The Pentagon alone cannot account for a staggering $3 trillion in expenditures. Congress has become an invertebrate branch, which has created a corresponding need for fearless citizen criticism of government.

Privacy was the spark of the American Revolution. In 1761, James Otis denounced British Writs of Assistance. They empowered every petty official to rummage through homes and businesses in search of contraband or smuggled goods. He amplified: “It is a power that places the liberty of every man in the hands of every petty officer.” John Adams chronicled: “Then and there the child of independence was born . . .”

In 1763, William Pitt the Elder spoke against an excise tax on cider to the British Parliament in words that thundered throughout the American colonies: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.”

The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government.

The Fourth Amendment was ratified to enshrine the right to be let alone as a constitutional imperative. Its protections do not depend on the outcome of any election or the spasms of public opinion frightened by terrorist attacks. As World War II raged, Supreme Court Justice Robert Jackson sermonized in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943):

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The Fourth Amendment intentionally creates barriers to law enforcement and a risk-free existence by delimiting the power of government to conduct searches and seizures that disturb privacy. It provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Accordingly, the government must ordinarily obtain a warrant from a neutral magistrate based on probable cause and particularized suspicion of crime before individual privacy may be upset. In circumstances in which a warrant is not constitutionally mandated, searches and seizures must nevertheless satisfy a “reasonableness” standard.

The Constitution was intended to endure for the ages. Its authors knew that unforeseen changes in technology or otherwise would require atextual interpretations to honor the Constitution’s purposes. They understood, like St. Paul in 2 Corinthians 3:6, that “the letter killeth, but the spirit giveth life.” Thus, Chief Justice John Marshall observed in McCulloch v. Maryland, 17 U.S. 316 (1819) that the Constitution “was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”

The Fourth Amendment was ratified to prevent governmental evil — even at the expense of handicapping law enforcement.

The Supreme Court has instructed that the Fourth Amendment should be interpreted to safeguard privacy expectations despite vast changes in government surveillance technologies and capabilities that are no less robust than the privacy expectations of the citizenry in 1791 when the Amendment was ratified.

In Kyllo v. United States, 533 U.S. 27 (2001), the Court held that the warrantless use of a thermal-imaging device aimed at a private home violated the Fourth Amendment. Writing for the majority, Justice Antonin Scalia amplified:

While it may be difficult to refine the Katz [reasonable expectation of privacy test] when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes — the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” constitutes a search — at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.

Emails or text messages in the Age of the Internet are the functional equivalent of letters in 1791, and should thus command the same protection under the Fourth Amendment. And as to the latter, Justice Stephen J. Field declared in Ex Parte Jackson, 96 U.S. 727 (1877):

The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between different kinds of mail matter,— between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlet , and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household.

Premium protection of privacy according to constitutional mandates does not mean weak government. Justice Jackson explained in West Virginia State Board of Education, supra:

Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support. Without promise of a limiting Bill of Rights, it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government.

The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government, not private miscreants, criminal organizations, or non-state actors like al Qaeda. The industrial scale slaughters of the Canaanites and Amalekites chronicled in the Old Testament are emblematic. In more recent times, the Third Reich, the Soviet Union, and Communist China have been complicit in genocide or crimes against humanity that have killed up to 200 million. Unlike private parties or non-state actors, government enjoys a monopoly of legalized violence and the power to tax and to conscript, which facilitates repression on a vast scale. The Fourth Amendment was ratified to prevent this government evil — even at the expense of handicapping law enforcement.

The Constitution — including the Fourth Amendment — is premised on the belief that accepting the risk of being the victim of injustice is morally superior to risking complicity in it. Thus, the due process clause requires proof beyond a reasonable doubt and jury unanimity for a criminal conviction. That standard means some guilty persons will escape punishment and be released with a risk of recidivism. But it also means a diminished risk of convicting the innocent and implicating the entire society in injustice. Justice John Marshall Harlan explained in In re Winship, 397 U.S. 358 (1970) (concurring opinion): “I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

Even with the reasonable doubt standard, an alarming number of innocent defendants are convicted. According to the Innocence Project, there have been 333 post-conviction DNA exonerations alone since 1989. Of that number, 20 had served time on death row. On average, each innocent defendant had served 14 years in prison.

It is probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons.

The Fourth Amendment’s reasonableness standard circumscribes government searches and seizures despite the impairment to effective law enforcement. The reasonableness standard is first cousin to the reasonable doubt standard in criminal prosecutions. It is founded on the philosophical principle that it is better to protect the right to be let alone when there is no government showing of a compelling need than to apprehend and punish all criminals. The Fourth Amendment knowingly accepts the risk that some criminals will escape detection that unfree peoples do not because it prefers liberty to a futile quest for a risk-free existence.

Investigations of crime through searches or seizures encroach on liberty irrespective of whether a criminal charge is forthcoming.

The target must retain an attorney at substantial expense to protect against false suspicions or accusations. The investigation, simpliciter, makes the target socially or professionally radioactive — leading to ostracism, the loss of income, family strife, or worse. In the Age of the Internet, the target’s reputation may be irreparably blemished. False and defamatory statements emerging from an investigation are impossible to scrub from the electronic grid. There are countless Richard Jewells of the world of less notoriety.

The percentage of investigations that lead nowhere and thus gratuitously invade privacy is unknown. But clues are available from the Federal Bureau of Investigation’s assessment data. From 2009–2011, the Bureau opened 42,888 assessments of persons or organizations seeking signs of terrorism or espionage. A database search In May 2011 showed that 41,056 of the assessments had been closed without result, and that 1,986 had progressed to preliminary or full investigations — a false positive rate of over 95%. During that period, 39,437 assessments were initiated seeking signs of ordinary criminal activity, and 36,044 had been closed without result, while 1,329 had progressed to preliminary or full investigations — a false positive rate approaching 97%.

The Supreme Court’s crabbed interpretations of the Fourth Amendment have made privacy subservient to highly speculative claims of law enforcement and national security.

It is thus probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons. No law awards them compensation for the government’s invasion of their privacy and probable permanent loss of a livelihood.

In light of these considerations, the Fourth Amendment or complementary federal or state statutes should prohibit any government search or seizure that materially encroaches on the right to be let alone unless the encroachment furthers a compelling government interest and does so with techniques least disturbing to privacy. Search warrants that satisfy the Fourth Amendment should ordinarily not be utilized unless there is probable cause to believe that very serious criminal activity is afoot, not trivial crimes like marijuana possession or use.

The Withering Away of Privacy

The right to privacy has withered since 1791.

Federal criminal prohibitions have proliferated from a handful in 1790 to thousands today. Each prohibition provides a new government justification for invading privacy in the name of law enforcement. A study by the Federalist Society found that by 2007 the United States Code contained more than 4,450 criminal offenses.

Further, a growing number of federal crimes impose strict liability with no mens rea. They justify investigations with no suspicion that the target acted with a guilty mind.

Additionally, the government began the dragnet collection of foreign intelligence as the United States changed from a republic to a global empire. Foreign intelligence is virtually limitless in scope and generally shielded from legal accountability through the Executive Branch’s invocation of state secrets.

Technology has advanced by leaps and bounds that enable ever-greater government encroachments on privacy, for instance, the interception, retention, and search of every phone or email communication at relatively modest cost.

Finally, the Supreme Court’s crabbed interpretations of the Fourth Amendment — including the third party doctrine — have made privacy subservient to highly speculative claims of law enforcement or national security.

The Proliferation of Federal Criminal Prohibitions. Under the Constitution, there are no federal common law crimes, as the Supreme Court declared in United States v. Hudson, 11 U.S. 32 (1812). Federal crimes are creatures of statutes. The first was the Crimes Act of 1790. It created but a handful of offenses, for instance, misprision of treason, piracy, or counterfeiting.

No Department of Justice or Federal Bureau of Investigation was then created for law enforcement, which was largely ad hoc in response to private complaints.

At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately.

In 1791, privacy was tightly safeguarded against federal intrusions. Yet public safety was not compromised. The federal government scrupulously respected privacy for nearly a century after its beginning. The Supreme Court initially confronted Fourth Amendment claims in Ex Parte Jackson, supra, and Boyd v. United States, 116 U.S. 616 (1886). During the previous decades, crime was not a political issue in a single federal election campaign for the House, Senate, or presidency.

The presidency of Theodore Roosevelt inaugurated the federal regulatory state with the Pure Food and Drug Act of 1906 and Hepburn Act of 1906. Then came the Harrison Narcotics Act of 1914, the Prohibition Era, and the New Deal. By 1940, then Attorney General Robert Jackson was warning:

What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes being unpopular with the predominant governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. (“The Federal Prosecutor,” address delivered by Robert H. Jackson, April 1, 1940)

During the 75 years that have elapsed since the Attorney General’s address, the problem of investigative or prosecutorial abuses which cripple privacy has intensified. At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately. Renowned attorney Harvey Silverglate authored Three Felonies A Day in 2009. It chronicles the octopus-like expansion of the federal criminal law and corresponding law enforcement abuses portended by Jackson.

At present, the Department of Justice budget approximates $30 billion annually, a sum which supports more than 100,000 law enforcement personnel.

Federal Strict Liability Offenses. The federal regulatory state features a growing number of strict liability or public welfare offenses in which an innocent mind is no defense. Violations of the federal wire fraud statute or the Marine Mammal Protection Act are illustrative. Wade Martin was convicted under the latter act for selling sea otters to a person whom he mistakenly believed was a native Alaskan.

These types of crimes were unknown when the Fourth Amendment was ratified. Justice Robert Jackson explained the strong common law presumption of an evil intent combined with an evil act to satisfy the threshold for criminality in Morissette v. United States, 342 U.S. 246 (1952):

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil . . . Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a “vicious will."

The growth of strict liability offenses in the regulatory state further lowers the barriers to the initiation of government investigations that encroach upon privacy.

Foreign Intelligence. With the post-World War II transformation of the United States into a global power and the Cold War, the President commenced the collection of foreign intelligence without warrants or congressional oversight based upon an unbounded interpretation of Article II. At present, pursuant to Executive Order 12333, the government gathers foreign intelligence on the President’s say-so alone both domestically and abroad. The definition of foreign intelligence is sweeping, i.e., “information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.”

Foreign intelligence is also collected by the President within the United States under the Foreign Intelligence Surveillance Act, as amended.

The volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.

Internet communications are intercepted, retained, and searched without probable cause to believe crime or international terrorism is afoot. The magnitude of citizen privacy invaded under the Executive Order is unknown because its implementation is cloaked in secrecy, and the government cannot be trusted to volunteer the truth. The Director of National Intelligence, James Clapper, for instance, lied to the Senate Intelligence Committee under oath in denying that the National Security Agency was collecting data against millions of Americans.

Making reasonable inferences from the disclosures of Edward Snowden, the volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.

Technology. The development of technology since the ratification of the Bill of Rights has armed the government with unprecedented tools or instruments for invading privacy. They include wiretapping, surveillance drones, electronic surveillance, DNA collection, facial recognition equipment, thermal-imaging instruments, and instantaneous, inexpensive retrieval of information from vast databases. Supreme Court Justice Sonia Sotomayor amplified in United States v. Jones, 565 U.S. __ (2012) (concurring opinion):

GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F. 3d, at 1124 (opinion of Kozinski, C.J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility,” Illinois v. Lidster, 540 U.S. 419, 426 (2004).

Supreme Court Decisions. The law is generally backward-looking and tardy in responding to new technology. Nearly forty years elapsed before the Supreme Court in Katz v. United States, 389 U.S. 347 (1967) corrected its erroneous holding in Olmstead v. United States, supra, that conversations were outside the protection of the Fourth Amendment.

Katz established a reasonable expectation of privacy standard to inform Fourth Amendment interpretations. But the Court soon rendered the standard toothless in a pair of decisions divorced from reality.

In United States v. Miller, 425 U.S. 435 (1976), the Court held that the Fourth Amendment is inapplicable to a customer’s bank records that are subpoenaed by the government for the purposes of criminal prosecution. Writing for the Court, Justice Lewis Powell explained:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U.S. 745, 751–752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

In Smith v. Maryland, 442 U.S. 735 (1979), the Court similarly held that a phone subscriber had no reasonable expectation of privacy in his dialed phone numbers because they were knowingly shared with the phone company. Thus, the Fourth Amendment did not apply to the government’s suspicion-less use of pen registers in the investigation of crime. Justice Harry Blackmun amplified:

When he used his phone, [the subscriber] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

Both Miller and Smith are wildly misconceived. Everyone possesses a reasonable expectation that sensitive or confidential information shared with intimates or businesses for benign, professional, or narrow purposes will not be provided to the government. It has the motive and ability to imprison or otherwise harm you. Internet users share email content with internet service providers without any expectation that the National Security Agency will be privy to the communication. The same can be said, for text messages known to phone companies in the ordinary course of business. But under Miller and Smith, the Fourth Amendment leaves unprotected the contents of every email or text message communication in the United States. The NSA is defending the constitutionality of its bulk collection, retention, and search of telephony metadata regarding every phone call in the United States by relying on Miller and Smith.

Restoring the Right to Be Let Alone

Congress should not tarry in the enactment of legislation that rolls back the staggering encroachments on the right to be let alone that have transpired since the ratification of the Fourth Amendment in 1791.

Atop the agenda should be a Privacy Protection Restoration Act (PPRA), to provide as follows:

A person may assert as a defense in any proceeding alleging noncompliance with a search warrant, subpoena, national security letter, or other government order that compliance would materially encroach on the privacy of that person or a third party unless the government proves by a preponderance of the evidence that compliance is necessary to advance a compelling government interest in law enforcement, and, that the technique for collecting the information minimally encroaches on privacy.

In determining whether compliance with a search warrant, subpoena, national security letter, or other government order would advance a compelling government interest, the court shall consider, among other things, the seriousness of the crime under investigation and documented proof that the investigatory technique to be used in obtaining the information has been substantially effective historically in preventing, deterring, or punishing crime or international terrorism.

The principles behind the PPRA should inform deliberations on pending legislation to update the obsolete Electronic Communications Privacy Act of 1986 (ECPA).

The Email Privacy Act would require the government to obtain a warrant based on probable cause to access the content of any email from an internet service provider irrespective of the email’s age. At present, ECPA restricts protection of email content to communications that have been stored for 180 days or less. That limit was held unconstitutional in United States v. Warshak, 631 F. 3d 266 (6th Cir. 2010). Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.

Globalization was in its infancy when ECPA was enacted. Most Internet communications and storage took place within the United States. The probability of interjurisdictional conflicts over stored emails outside the United States was more hypothetical than real. Congress predictably remained enigmatic on ECPA’s application to electronic records stored in foreign lands.

Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.

Three decades later, that opaqueness is unsatisfactory. Law enforcement officials in one country commonly seek access to records in another country. Whose privacy laws apply? The issue has jumped to the forefront because of United States v. Microsoft. In that case, the Department of Justice sought to compel Microsoft to produce emails located on servers in Dublin, Ireland. But the United States Court of Appeals denied that the Storage Communications Act granted that authority. The case might reach the United States Supreme Court.

During the last Congress, a bill known as LEADS would have addressed the issue in the following way.

The government would be authorized to use a warrant to compel production of electronic communications stored abroad if it concerned a United States citizen. There is nothing irregular about extraterritorial application of United States laws to the activities of its citizens. Congress, for instance, has criminalized foreign travel to engage in illicit sex (18 U.S.C. 2423).

The LEADS authorization, nevertheless, would have been worrisome. Reciprocity is the norm on the international stage. If the United States can gain access to information about United States persons stored in China or Russia, we would be required as a matter of comity to permit those countries to obtain access to electronic information about their citizens stored in the United States. Since both China and Russia are lawless nations, their governments can be expected to employ this power to persecute dissidents or otherwise violate human rights. In other words, LEADS’ authorization to use search warrants to retrieve information about United States citizens stored abroad may be a cure worse than the disease.

How important are such search warrants to law enforcement?

At present, we are clueless. Such warrants may be vital or marginal to the investigation of serious crimes. A legislative precedent should not be created that would assist persecution of Chinese or Russian dissidents unless it satisfies a very high threshold of urgency.

We cannot take the government’s law enforcement claims at face value. The government insisted that three counterterrorism laws that have slumbered from birth were imperative: the Alien Terrorist Removal Procedures, Section 412 of the Patriot Act, and the lone-wolf amendment to the Foreign Intelligence Surveillance Act. They have never been used.

Authoritarian governments can be expected to employ reciprocal power to persecute dissidents or otherwise violate human rights.

Congress should thus prohibit the use of search warrants extraterritorially unless the Executive provides hard, nonspeculative evidence that the authority is necessary in a significant number of cases to prosecute significant crimes. The privacy of United States citizens should not be compromised absent demonstration of a compelling government need.

LEADS would have authorized an internet service provider to resist a search warrant’s use extraterritorially by proving that compliance would violate the laws of a foreign country to the issuing tribunal. But United States courts are amateurs in the interpretation of foreign laws. They would be prone to error absent expert testimony. And years could be consumed in litigating appeals of trial court decisions, which frequently would prove fatal to the investigation. The LEADS game for extraterritorial use of search warrants is probably not worth the candle.

Unless much more convincing evidence of law enforcement need is forthcoming, legislation should prohibit the use of search warrants extraterritorially to obtain electronic communications about United States citizens. That would avoid setting a precedent that would assist China, Russia, or other lawless nations in persecuting their dissidents without material offsetting benefits to United States law enforcement.

The United States would not go dark abroad without the use of search warrants extraterritorially. We have more than 50 Mutual Legal Assistance Treaties with other countries that facilitate the voluntary sharing of evidence and information in criminal cases or other government investigations. The MLAT process can be employed whether or not the information sought concerns a citizen or foreigner. It satisfies customary standards of international comity and avoids interjurisdictional conflicts. But new legislation can make the MLAT process more efficient and transparent.

Conclusion

Privacy is the cornerstone of a flourishing democratic dispensation that celebrates a liberty-centered universe. It has withered over the years succumbing to inflated claims of law enforcement or national security.

Congress should restore privacy as the crown jewel of the nation by enacting a Privacy Protection Restoration Act to impose a heavy burden on the government to justify every material encroachment on privacy. If Congress does nothing, privacy is destined to crucifixion on a national security cross.




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All the News that’s Fit to Tweet

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It case you’ve missed out on this, President Trump keeps making his tweets a subject of national controversy. Friends defend his messages as his way of breaking through the mainstream media’s circle of lies; foes denounce the messages as vulgar and stupid. Both sides are right.

I have a suggestion for Mr. Trump. If you want to hurt your enemies while bringing attention to your programs (not to your anger, about which everyone is fully informed), why not tweet some facts that might advance your agenda? Why not tweet things like the following (they’d be news to most people)?

It’s strange to me that Trump and his staffers haven’t thought of this already. But if he wants a stack of stuff he can use whenever his fingers get that 3 AM itch, I’ll be pleased to send it to him. It wouldn’t take much work.




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