George W. Bush

Who is Eliza May?

Is the woman at the center of the Texas funeral home scandal a wronged government watchdog or a Democrat with a political agenda?

George W. Bush hit his first speed bumps along the campaign trail this week. While the national media dogged him for finessing questions about possible past drug use, Bush was facing a potentially much more serious issue back home in Texas, where a simmering influence-peddling scandal continues.

“Formaldegate” — named for the funeral-home industry at the scandal’s center — is an intriguing tale of death threats, leaky dead bodies and political cronyism. At its center is a self-styled whistle-blower who says Bush blasted her out of state government when her commission got too close to a Bush family buddy, the largest owner of funeral homes in the world. But is it a real story, or simply a political vendetta launched by a Texas Democrat to derail Bush’s White House hopes?

The answer lies with the central figure in the scandal, Eliza May, a 45-year-old Austin Democrat who claims she was fired from her job as executive director of the Texas Funeral Service Commission for blowing the whistle one of Gov. Bush’s friends and political donors.

When May came to the TFSC in 1996, the agency was in shambles. Five months before May started work, her predecessor at the commission, Wayne Butterfield, was arrested on charges of aggravated perjury and witness tampering. The executive director before him left after being hit with charges of sexual harassment. State inspectors were hammering the agency. In 1990, the state’s sunset commission recommended that the TFSC be abolished because it was taking “minimal and ineffective” action to resolve consumer complaints. In August 1995, just 11 months before May accepted the executive director’s job, the state auditor’s office uncovered a hearse-load of problems including lax licensing, shoddy inspections and poor internal operations.

May knew there would be hassles when she applied for the job. After years of working for the state, she was used to them But May never would have guessed that her stint as executive director of the Texas Funeral Service Commission would last just 31 months, that her life would be threatened on the job or that she would end up in the center of a growing controversy involving the man favored to be the next president of the United States.

In March, May filed suit against the state of Texas. It alleges Gov. Bush and other state officials tried to thwart her agency’s investigation into Houston-based Service Corporation International. May also sued SCI and the company’s CEO, Robert Waltrip.

Just as Paula Jones’ lawsuit caused big problems for President Clinton, so could May’s lawsuit pose problems for Bush. Like Clinton, who fought Jones’ efforts to get his deposition, Bush is fighting a subpoena issued by May’s attorneys.

But there are some key differences between Jones’ case against Clinton and May’s suit against the state. First and foremost, Bush is not a defendant in May’s lawsuit. Secondly, Jones sued Clinton for his personal conduct. May’s suit against the state is seeking Bush’s testimony about his actions as governor and whether he or his employees did anything to hamper or halt the TFSC’s investigation into SCI.

On Wednesday, May’s lawyers raised the stakes, asking a Travis County court to find Bush in contempt for not telling the truth about his interactions with SCI officials in a sworn affidavit. Like Jones, May is being hit with allegations that her motivations for pursuing the whistle-blower suit and the deposition of Bush are political. In an Aug. 5 motion to quash the subpoena of Bush, Texas Attorney General John Cornyn argued that the deposition was being “sought purely for purposes of harassment.”

On Wednesday, Bush made the same charge. During a press conference in Austin, he referred to May’s lawsuit as “frivolous” 12 times. “This is a frivolous lawsuit; this is politics,” he said.

In March, one of SCI’s lawyers, Johnnie B. Rogers, insisted that May began the investigation into SCI because she was “trying to run for governor à la Ann Richards.” Rogers added that May had used her position at the TFSC for political purposes and that “she thought she’d take on the biggest funeral giant in the world and put it on her wampum belt and become the Jessica Mitford of the funeral business.”

Rogers may have a point. May has been active in Democratic politics on the city and state level for more than a decade. From 1994 to 1996 she served on the state Democratic Executive Committee. From 1996 to 1998 she was the treasurer for the Texas Democratic Party. She has also served on the finance committee for the Travis County Democratic Party, was active in the South Austin Mexican-American Democrats, the Hispanic Women’s Network and the Austin Women’s Political Caucus and served as a volunteer on several city and county boards and commissions. In 1996, she even considered running for Austin’s City Council.

Her political affiliations have raised some eyebrows and fueled speculation that May is simply trying to embarrass Bush, who has received $35,000 in campaign contributions from SCI’s political action committee since 1996. Two years earlier, in Bush’s first gubernatorial bid, Waltrip contributed $10,000 to Bush’s campaign. In addition, Waltrip and President George Bush are close friends. SCI donated more than $100,000 toward the construction of the Bush presidential library and Waltrip serves on the library’s board of trustees.

Did May let her political leanings interfere with her duties while she headed the TFSC? “No. Absolutely not,” says TFSC Chairman Dick McNeil, who voted to dismiss May from her job as executive director. Former employees agree with McNeil’s assessment. One former employee, who asked that her name not be used, remembered May as “stern and honest.” She also said that May was determined to turn the TFSC around. She was “professional and determined,” says the former employee. So why was May fired? “The commissioners had to find somebody to take the fall and it wasn’t going to be them,” she said.

Questions about May’s political motives are likely to continue. On Wednesday, a Bush spokeswoman, Linda Edwards, called May’s lawyers’ request that Bush be cited with contempt of court “a publicity stunt and an example of the frivolous misuse of the civil justice system.” And there are likely to be allegations that one of her lawyers, Charles Herring Jr., a former chairman of the Travis County Democratic Party, is pursuing Bush for political reasons. That will be hard to prove. Both Herring and May’s other attorney, Derek Howard, are experienced in whistle-blower actions. In 1996, Herring won a $1 million jury verdict in a whistle-blower case against the University of Texas. Herring has also authored two textbooks on legal practices.

In 1994, Howard sued former Democratic Gov. Ann Richards and several other state officials in a wrongful termination case. (Howard lost.) He currently has another whistle-blower case pending in which he is also seeking Bush’s testimony. Both lawyers insist they are following normal procedures in whistle-blower cases and that in May’s case, the facts appear to lead straight to Bush’s office. “To suggest that this is about politics is absolute bunk,” said Howard.

A slim, energetic woman with jet black hair and dark brown eyes, May has a quick laugh and a somewhat wary nature. During a brief interview in March, at her lawyer’s office, her answers were guarded. Her lawyers have refused all requests for follow-up interviews.

A bilingual woman who grew up in the hardscrabble border town of Laredo, Texas, May has spent her entire career working for government and public-sector entities. In 1976, after graduating from Southwest Texas State University in San Marcos with a degree in sociology, she went to work for the Texas Department of Human Services, where she worked in the child welfare division. One person who worked with May at the agency recalls going with her to visit a woman who was having domestic difficulties. He says he was “amazed” by May’s interpersonal skills. “I was really impressed. She really connected with this woman.”

May went back to school, and in 1984 she got her master’s degree in social work from the University of Texas at Austin. She went on to work as a legislative aide in the Texas House of Representatives and then to a series of jobs with Latino and women’s advocacy groups. In 1992, she became the executive director of the Council on Sex Offender Treatment, a state agency with five employees.

In the spring of 1996, May decided to seek the executive director’s job at the TFSC, an agency with 10 employees that regulates 1,200 funeral homes and issues licenses to embalmers and funeral directors. The job paid about $43,000 per year.

Kenneth J. Hughes, one of the TFSC commissioners who interviewed her, said May was “head and shoulders above anyone else we talked to.” When May was hired, eight of the nine commissioners on the TFSC had been appointed by Bush. All of them knew that May was a Democrat. According to Hughes, her politics were not an issue. He said May was the best candidate and that the commissioners trusted her to run the agency properly and leave politics aside. By most accounts, that’s what May did.

When May reported for work in August 1996, she was dismayed by the lack of discipline in the office. Workers were reading newspapers at their desks. Consumer complaints were being ignored. Sources close to the agency said May did little for the first six months or so. Then she began cracking down. “She told us you are paid for eight hours, I want you to work for eight hours,” says one source. After that, the agency slowly began to delve into its backlog of complaints. In early 1998, during a routine audit of case files, the TFSC found that two people who were doing embalming work at two SCI funeral homes in the Dallas area did not have proper licenses.

That information, coupled with a complaint filed by a consumer, led the TFSC to begin an investigation into SCI that rocked the agency, led to May’s dismissal and uncovered what appears to be a major influence-peddling scandal.

The agency’s first action against SCI came when it denied several applications from embalmers who were apprenticing at SCI funeral homes. Then, the agency began asking SCI for embalming-related documents. SCI balked. So, on March 31, 1998, the agency exercised its legal right to issue subpoenas and demanded that SCI produce 15 months’ worth of funeral-related documents. According to a report written by May, she received a letter on April 6 from SCI that said that “the SCI affiliates would not respond to the subpoenas.”

Two days later Josh Kimball, an apprentice who was working on his embalming license at one of the SCI funeral homes and had been denied a license by the TFSC, called May at the TFSC office. May alleges that Kimball said, “I am going to kill all of you.” (An SCI spokesman, Bill Miller, says Kimball was not working for SCI at the time he allegedly threatened May.) According to Austin Police Department records, May called at 12:25 p.m. to report the alleged threat. After the threat was allegedly made, the agency hired a security officer to guard the office during business hours. “I was concerned for my personal safety,” May said later.

On April 10, 1998, Good Friday, TFSC employees armed with subpoenas showed up, unannounced, at the SCI funeral homes and demanded to see the documents they had requested 10 days earlier. The raid infuriated Waltrip the surly, burly CEO of SCI. A few days after the surprise inspection, he fired off a six-page letter to the agency and to Bush, questioning the agency’s actions, which he called “outrageous, unwarranted and unexplained.” He went on to say that the agency’s “‘storm trooper’ tactics have no place in responsible government.” He complained that the TFSC employees had been discourteous to the SCI employees, and said McNeil should “consider disciplinary action, including termination” of the staffers involved.

But Waltrip’s power play was just beginning. Within days, half a dozen legislators had written the agency complaining about the Good Friday raid. Waltrip told McNeil and others that he was going to take the matter to the governor’s office. On April 15, 1998, Waltrip and Rogers did just that.

They went to the Texas Capitol, where they met with Joe Allbaugh, Bush’s chief of staff. During that meeting, according to a quote Rogers gave to Newsweek, Bush stuck his head into Allbaugh’s office and asked Waltrip, “Hey Bobby, are those people still messing with you?” When Waltrip indicated that they were, Bush asked Rogers, “Hey, Johnnie B. Are you taking care of him?” Rogers replied, “I’m doing my best, Governor.”

Rogers’ version of events appears to contradict Bush’s sworn affidavit in which he said he has “had no conversations with SCI officials, agents or representatives” about the state’s investigation.

A month later, on May 18, May was called into a meeting in Allbaugh’s office, where State Sen. John Whitmire, a Houston Democrat, demanded that she tell everyone in the room about her agency’s investigation into SCI even though Waltrip and Rogers were sitting in the same room. May said the meeting “was clearly designed to intimidate me and to obtain information about what we were doing. They were unhappy with the fact that I was doing this investigation.”

Despite SCI’s political pressure, May continued examining SCI. On Aug. 3, the commission’s complaint review committee voted to levy a fine of $445,000 against the company for violating state embalming laws, refusing to comply with subpoenas and not informing consumers that third-party embalmers were involved in the transaction. (SCI is contesting the fine and has not yet been required to pay a dime.)

The same day the agency voted on the fines, a private investigator working for SCI called three of May’s friends: Dennis Garza, Jeff Heckler and Pat Crow. “He wanted to meet with me,” said Crow, an Austin political consultant. “He wanted some dirt on Eliza May. And I didn’t have any. He called me three times. He said some negative things about her. I didn’t respond and didn’t comment.”

Bill Miller, the Austin public relations consultant and political operative who represents SCI, says the investigation of May was dropped right after the company hired him a year ago. Was the company trying to intimidate May? “Not since I got hired,” replied Miller.

Shortly before Christmas, the agency and SCI began mediation to resolve their dispute. Despite two days of talks, no agreement was reached. Meanwhile, the pressure on May was building. On Jan. 25, May was put on administrative leave and on Feb. 8, in a unanimous vote, the nine members of the commission voted to get rid of her.

Proof that May’s investigation into SCI’s embalming practices was justified didn’t take long to emerge. And the proof came in the form of embalming fluid that began leaking out of Tres Hood’s crypt shortly after he was entombed in July 1998. Hood, a popular 31-year-old television news anchor in Wichita Falls, died of colon cancer. His parents signed a contract with a Wichita Falls funeral home owned by SCI to embalm their son’s body. But Hood’s parents didn’t know that his body was going to be embalmed in Dallas. In fact, his body was embalmed at one of the two SCI funeral homes that had originally been targeted for investigation by the TFSC for illegal embalming practices.

The problems with the embalming were apparent almost immediately. When Hood’s family members came to see his body, they were horrified. “I could see fluid coming out of his eyes and mouth. I guess it was embalming fluid. It looked terrible. I made them close the casket because he looked so bad,” says Jeremy Johnson, Hood’s younger brother. According to a lawsuit filed in June by Hood’s parents against SCI, after Hood’s casket was put into a mausoleum, “problems with odors, gnats and fluid seepage began to occur.”

The ghastly details of Hood’s embalming are just one part of the SCI-Eliza May story that are going to come out in the next few months. Discovery in the Hood lawsuit will begin soon and many of the same people that will testify in May’s whistle-blower lawsuit will also be testifying in the Hood case.

While the political aspects of May’s lawsuit cannot be ignored, even her detractors are expressing amazement at SCI’s power play. Not only did the company stop the investigation and avoid paying any fines, it hired a lobbyist to write a bill and then convinced the Texas Legislature to pass a measure that overhauls the TFSC and strips it of some of its powers.

An early fan of May, TFSC Commissioner Hughes, a Bush appointee, says he lost confidence in her earlier this year and voted to dismiss her. But now that he’s leaving the agency, Hughes admits being impressed with SCI’s power. “SCI poured the money in the right places and kicked our butts out,” he said. “They told us, ‘We’ll go to the governor and get this thing thrown out.’ I didn’t think they were that strong. I didn’t think they could buy that many people.”

Using Bush’s playbook

"Karl Rove politics" aren't quite dead: Obama's strategy in 2012 will mirror W's in 2004

George W. Bush and Barack Obama (Credit: Reuters/Larry Downing)

Barack Obama’s presidency was born from nothing so much as his repudiation of George W. Bush’s administration — its policies and politics, its style and tone. One of Obama’s most effective 2008 stump speech refrains was his promise to end the era of “Scooter Libby justice, ‘Brownie’ incompetence and Karl Rove politics.”

But the political dynamics for winning a second presidential term often differ markedly from winning the first. So don’t be surprised by many eerie parallels between Obama’s 2012 reelection bid and Bush’s 2004 campaign. The president may not rely upon “Karl Rove politics” in the strictest sense, and nobody would confuse David Axelrod with Rove. But Obama’s reelection route and rhetoric may bear more than a few Rovian hallmarks.

Now that Mitt Romney has won the Republican nomination, two key features prevail over the 2012 campaign — and both were also plainly evident in 2004. First, the incumbent president’s reelection fortunes are far from certain; and, second, the incumbent faces a decent but nevertheless weak challenger who is further hampered by internal problems within his party’s coalition.

Because incumbents can’t run for reelection promising “change,” and because “hope” during a lingering recession was also off the menu, the Obama campaign’s 2012 theme of  “forward” — a word that often follows “plow,” mind you — was the best available alternative. That said, and substituting the economy for terrorism, Obama is implicitly if not explicitly advancing the same theme Bush did in 2004: America suffered a tough blow, but the situation could have been worse and, more to the point, under my stewardship the nation is steadily regaining its footing.

This counterfactual campaign theme — vote for me not because of what happened, but what might have but didn’t — is a common thread for Bush and Obama. It’s not an uplifting message, but it sufficed in 2004 and Obama is counting on it working again in 2012.

Politics 101 further dictates that when an incumbent’s reelection is in doubt, he must go negative against the challenger. Obama political operatives in the White House and at the Democratic National Committee long ago made it abundantly clear they were willing to do just that. Team Obama may not go negative against Romney to the degree the Bush camp did against John Kerry in 2004. (By mid-summer 2004, 75 percent of Bush’s TV ads were negative attacks on Kerry.) But don’t be surprised if attacks on Romney’s record and even character are plentiful, harsh and relentless. In 2008, America saw candidate Obama’s toothy grin; four years later, expect to see President Obama’s fangs.

Expect the Obama camp to emphasize two major critiques of Romney: that he is a flip-flopper willing to say anything or reverse any position to win; and that he is an economic royalist whose personal and public life suggest a person incapable of understanding the lives and struggles of average Americans. Again — note the unusual parallels with 2004.

Although Romney is a Republican former governor and Kerry was at the time his state’s Democratic junior U.S. senator, the two Massachusetts pols make for similar targets. Each man is an extraordinarily rich preppie and Ivy Leaguer. Each represents the liberal wing of his respective party. Each has shown a propensity for ruining an otherwise valid point with sloppy, backfiring language. And each has a reputation for lacking political spine.

The flip-flop frame is candidate character assassination of the first order. Like the lone negative number in a string of multiplied positives, the critique that nobody can trust any statement or claim made by a politician has the potential to negate every accomplishment or promise. If it sticks, it can be fatal, as Kerry learned in 2004.

Obama and the Democratic National Committee know their electoral history and, sure enough, last November — a year before the election and two full months before a single Iowan had caucused — the DNC released a four-minute “Mitt vs. Mitt” ad and its accompanying website with the damning tag line, “the story of two men trapped in one body.” The site is a brilliant homage to the Bush campaign’s 2004 windsurfer attack ad and the devastating, 11-minute ad the Republican National Committee produced chronicling Kerry’s “evolution” on Iraq.

And then there is what might be called “the Willard factor”: Romney as Richy Rich, the Monopoly Guy with the Bain Capital background and the Swiss bank account. His bio would be political gold to Romney’s opponent any election cycle, but it’s gold-plated platinum in the first full presidential campaign following the biggest economic crisis since the Great Depression, the rise of the Occupy Wall Street movement, and the long overdue national debate over income inequality.

Again, the wealth-personified line of attack mirrors the out-of-touch, Martha’s Vineyard yoke the Bush team put around Kerry’s neck in 2004. Right on cue, in the first public event of his reelection campaign, last week Obama attacked Romney by name and invoked the economic disconnect card with relish. “He sincerely believes that if CEOs and wealthy investors like him make money the rest of us will automatically prosper as well,” said Obama of Romney, adding that “corporations aren’t people – -people are people.” (For the record, Kerry is actually wealthier than Romney, who would become one of the richest men ever to occupy the White House, should he win.)

Obama will also try to shift the national debate toward areas of strength, as Bush did. Historically, this meant the same strategy, but with inverse implications for each party: The so-called mommy party Democrats would encourage voters to focus on more favorable kitchen-table economy issues — healthcare, jobs, education — and away from less favorable “daddy party” Republican issues surrounding foreign wars abroad and culture wars. Because Obama is net-positive in foreign policy approval and net-negative on the economy, rather than mirroring by inversion, Obama will try to duplicate Bush’s shift-in-emphasis in 2004. GOP complaints that Obama is politicizing the killing of Osama bin Laden reveal Republican fears that Obama is going to play the terrorism card in 2012 just like Bush did eight years ago.

The 2004 parallels extend beyond message. Obama will be amply resourced and enjoy a field technology by virtue of his campaign’s state-of-the-art Web, donor, volunteer and social media innovations. Remember the Bush reelection campaign’s vaunted “72-hour” voter turnout model? That seems like an Edsel compared to the Ferrari the Obama team will be sporting this summer and fall. Among the perquisites modern presidential incumbents enjoy is the option to test-drive the best mobilization machines before anyone else.

Finally, what most connects Obama 2012 to Bush 2004 is the stability of the electoral map itself. Only three states — two net to Bush — flipped from one party to the other between 2000 and 2004; only nine states flipped between 2004 and 2008. Split the difference and a good, back-of-the-napkin over-under for number of states likely to flip between 2008 and 2012 is six. And thus, like the lead sailboat during a windless race, Obama doesn’t need or want conditions to change much from 2008: He merely has to replicate the map that swept him into office, with the burden of figuring out how to shake up the Electoral College falling to Romney, just as it did for Kerry against Bush. Even Karl Rove’s mapping of the 2012 election concedes this reality.

The 2008 election was memorable; to borrow the title of one best-selling chronicle, it was a “game changer.” But 2012 will not be. In many respects, it will be a game repeater, with Obama playing Bush to Romney’s Kerry of 2004. The president may be asking Americans to look “forward” in 2012, but the best preview of his reelection campaign can be found by looking backward eight years.

Continue Reading Close

The Bushies are back

Missed the neocons? Don't worry: Mitt Romney's getting the band together again

(Credit: Reuters/Win McNamee)

There was good reason for Republicans to cry foul over the Obama campaign’s advertisement highlighting the president’s killing of Osama bin Laden; the GOP has lost its decades-long edge on national security. According to a Washington Post poll, “By a margin of more than 2 to 1, Americans say the president’s handling of terrorism is a major reason to support rather than oppose his bid for reelection.”

Republicans lost their popularity on security issues for one reason: George W. Bush’s foreign policy was a disaster. And yet, the party’s nominee, Mitt Romney, has assembled a foreign-policy team composed almost exclusively of individuals with the same war-always mentality and ideology that served Bush — and the United States — so poorly. In some cases, the exact same men responsible for Bush’s catastrophic national security policies are advising Romney. The former Massachusetts governor could have included some of the pragmatists and realists from the George H.W. Bush administration. Instead, a Romney presidency seems like it would be Bush 43 all over again.

Richard Grenell, who served as United Nations spokesman under Bush, may be gone from the Romney campaign after an uproar over his sexuality, but there are plenty more former Bushies. First off, there are Romney’s “special advisors.” There’s Michael Chertoff, W.’s Homeland Security director. Chertoff oversaw DHS’s failures during Hurricane Katrina, and amassed unprecedented powers of secrecy. Next up is Eliot Cohen, counselor to the State Department for Bush’s last two years and on the Defense Policy Advisory Board for the president’s entire term. Cohen was an adamant supporter of the Iraq War and advised Bush directly on the issue. Or take Cofer Black, the man who infamously said to Bush in September 2011 about al-Qaida that “When we’re through with them they will have flies walking across their eyeballs.” Black went on to become chairman of Blackwater, where he resigned after the company illegally bribed Iraqi officials.

Then there are the 13 “working groups” composed of equally worrisome individuals. The Middle East and North Africa Working Group is co-chaired by Bush’s Assistant Secretary of Defense Mary Beth Long, and Meghan O’Sullivan, Bush’s special assistant and deputy national security advisor for Iraq and Afghanistan. The remaining co-chair is Walid Phares, who never worked for Bush but advised Lebanese warlords in the 1980s. Romney has reportedly promised Phares a top job in his administration, despite his virulently anti-Islamic views.

All told, Romney lists 37 holdovers from the George W. Bush administration — the very same administration he and all other Republican candidates barely referenced during their many debates because it was so discredited and toxic, even to the Republican base.

It didn’t have to be this way. There are, in fact, people in Republican circles who are sensible on international affairs. The Cato Institute, in particular, has experts that could dramatically change the direction of American foreign policy. Men like Justin Logan and Christopher Preble were prescient on Iraq and a host of other issues. Similarly, the Center for the National Interest (formerly the Nixon Center) has a host of solid scholars, including ones like Dimitri Simes and Geoffrey Kemp, who have valuable government experience in the Nixon and Reagan administrations, respectively, and a history of perceptive analysis. Richard Haass, president of the Council on Foreign Relations, would have been another good pick.

So why aren’t guys like this being tapped? Why is the GOP sticking with a discredited foreign-policy approach rather that looking to its own past for wiser counsel? “Most of the realists and pragmatists have simply been driven out of the Republican Party,” says Stephen Walt, who writes a blog at Foreign Policy and teaches at Harvard. “The neoconservatives have been driving the agenda since Bush was elected and they remain well-entrenched.”

Another factor is that the Republican Party’s base remains strongly militaristic and reluctant to recognize limits on American power. Jon Huntsman’s failed presidential campaign illustrated that problem. The good news is that nobody seems to be calling for nation-building and occupying foreign countries in the mold of Iraq and Afghanistan. But that’s the only lesson that seems to have been learned from the last decade of foreign-policy debacles.

Finally, it may just be that the United States has too much power to change course. While the Unites States has undoubtedly made disastrous decisions in the last decades, it is so powerful that it is largely insulated from the consequences of them. If Romney’s foreign-policy advisor list is anything to go by, a Romney administration would have to teach the U.S. all over again about the problems with trying to police the world. Prepare for Bush redux.

Continue Reading Close

Jordan Michael Smith writes about U.S. foreign policy for Salon. He has written for the New York Times, Boston Globe and Washington Post.

Bush aide blasts torture

Philip Zelikow tried to warn Bush on interrogations. Now he's penned an authoritative article on how he was ignored

(Credit: Reuters/Jim Young)

The Bush administration hasn’t heard the last from Philip Zelikow. After the rediscovery last week of his long lost 2006 anti-torture memo, Zelikow, a former State Department official, has written arguably the most damning article yet about U.S. government’s interrogation policies from 2001 to 2009. The article, called “Codes of Conduct for a Twilight War,” will be released in a forthcoming issue of the Houston Law Journal, and was obtained exclusively by Salon. Says Zelikow in an email: “I’m not aware of other accounts that combine historical, policy and legal approaches to” the subject of the Bush administration’s interrogation methods.

Based on published histories and his firsthand observations, and adapted from a lecture delivered in November, the article calls the administration’s rationale for its use of torture — which he nonetheless insists only on calling “extreme interrogation” and “coercive methods” — “radical,” “an amazing contention,” “untenable and extreme,” “unsustainable,” “an unprecedented program of coolly calculated dehumanizing abuse and physical torment,” and, finally, simply a “mistake.” He concludes: “This was a collective failure of American public leadership, in which a number of officials and members of Congress (and staffers) of both parties played a part, endorsing a CIA program of physical coercion without any precedent in U.S. history.”  In fact, “The only defense against criminal prosecution would be that officials acted in good faith reliance on the advice of their government lawyers.”

Part of what makes Zelikow’s analysis so damning and definitive is its judiciousness. The article is deeply empathetic of the uniquely fearful situation under which the Bush administration was initially operating. Zelikow calls the Sept. 11 attacks a “collective trauma” and a “shoc[k] to mass beliefs.” He notes that Bush and others spent time in burn units, morgues and with survivors of the attacks. One traumatic experienced often overlooked — overlooked because it appeared in Stephen Hayes’ stenographic biography of Dick Cheney — was that the vice-president’s daughter was (falsely, it turns out) told that her house with her children in it had tested positive for anthrax. Similarly, Cheney and National Security Advisor Condoleezza Rice were told that they and others had been exposed to an extremely lethal toxin in a particular area of the White House — and might soon die as a result. “The alarms did not stop and they too were not abstract … The pressure on Bush and his senior advisers was so direct because so much of the response had to be invented and improvised,” the article reads.

An additional factor in the power of the article is Zelikow’s credibility and history. Before entering government, he was a civil rights lawyer in Texas battling the Ku Klux Klan and then a highly esteemed Harvard historian specializing in U.S. foreign policy — he co-authored one book with Rice. He then served on the National Security Council under President George H.W. Bush and directed the 9/11 Commission before becoming counselor to Rice at the State Department from 2005 to 2007. He currently volunteers part-time on the President’s Intelligence Advisory Board under President Obama.

Such bipartisan, establishment credentials render the breakdown and conclusion of this article all the more damning. He believes that what should have been a political and moral question — should the United States torture captives? — became strictly a legal matter left up to government lawyers, few of whom had any experience with these issues, and who had to take the necessity of extreme measures as a given. “These lawyers then became secular priests, granting absolution to the supplicant policymakers,” Zelikow writes.

The problems began when the Office of the Vice President and the CIA took central roles in policymaking. Cheney felt himself above the rest of the National Security Council, bypassing Rice and other traditional channels of national security policymaking. Ad-hoc decision-making and improvisation became “a habit of thought,” which seemed initially to pay off in the security of the nation, as well as in Bush’s political standing and self-confidence.

With Cheney and CIA head George Tenet “the key entrepreneurs in setting codes of conduct for the War on Terror,” it was essentially left to their obsequious lawyers to decide, in secret, on the interrogation methods America should employ. Bush even told the Senate’s Intelligence Committee chairman that “the vice president should be your point of contact … [He] has the portfolio for intelligence activities.” Decisions were made to jettison international treaties. By December 2001, the CIA was already interested in reverse-engineering methods “heretofore used only to treat Americans to resist enemy torture.” When a senior al-Qaida member was captured in March 2002, the prototype for the administration’s torture policies was already developed. “So, for the first time in American history, leaders of the U.S. government carefully devised ways and means to torment enemy captives.”

Zelikow notes that “None of the policy or moral issues connected with these choices appear to have been analyzed in any noticeable way.” Perhaps worst of all, no serious consideration was given to weighing the costs of benefits of the torture program, with reference to relevant historical precedents and/or examinations of the respective French, British and Israeli experiences in dealing with captured terrorists. “Bush and Rice should have insisted on this,” Zelikow writes.

The 52-page article observes the successes of Obama’s counterterrorism policies after repudiating the use of torture. On the basis of the empirical evidence then, “[t]here is no evident correlations between intelligence success and the available of extreme interrogation methods,” no matter what Bush and Cheney claim. Finally, “The program’s costs — which include the high-level effort expended in order to establish, maintain, and defense the program — appear on the evidence so far to have well outweighed any unique value the program might have had as a method of counterterrorism intelligence collection.” This is apart from the damage to America’s international standing and corrosion of its traditional values.

Zelikow concludes his analysis by arguing that, although the Obama administration has the right to wage war and use extralegal methods to defeat al-Qaida, its claim of that authority to defeat “associated forces” is unwarranted. “The U.S. government should publish and explain any overarching policy and legal documents that guide and confine the conduct of deadly operation against its foreign enemies … the executive branch of the U.S. government has a duty to articulate the scope of its warfare to the Congress and the public.” The Bush administration’s unprecedented elevation of torture to national policy may be history, but the job to get U.S. foreign policy in line with its constitutional and moral obligations is far from over.

Continue Reading Close

Jordan Michael Smith writes about U.S. foreign policy for Salon. He has written for the New York Times, Boston Globe and Washington Post.

Thomas Kinkade, the George W. Bush of art

The rise and fall of Thomas Kinkade, the Painter of Light™ in a decade of bad faith

News of Thomas Kinkade’s death arrived on the same day I received in the mail a vintage teacup on which I had spent a ridiculous amount of money. It has a cottage painted on it. Kinkade, whose work has long exerted a morbid fascination for me (to the concern of all my friends), specialized in cottages. So some part of me understands the appeal, I guess, but, damn: Those paintings make my corneas hurt. And yet, I could barely stop looking at them.

Kinkade was only 54, and his family told the media that he died of “natural causes.” This comes after years of reports of drunken public misbehavior: cursing at people who tried to save him from falling off bar stools, heckling Siegfried & Roy, grabbing a woman’s breasts at a publicity event and, most memorably, urinating on a Winnie the Pooh statue at the Disneyland Hotel while proclaiming, “This one’s for you, Walt!” There were DUI arrests. Also, his manufacturing company declared bankruptcy two years ago, and former franchisees of the once-ubiquitous Thomas Kinkade Signature Galleries won settlements against him for fraud.

That’s quite a fall for a man who frequently spoke of his Christian faith and family values when asked to comment on the mammoth success of his brand in the early 2000s. “When I got saved, God became my art agent,” Kinkade explained in a 2004 video. He went from a childhood in Placerville, Calif. (invariably characterized as “hard-scrabble”) to an apprenticeship selling his work in supermarket parking lots to his apotheosis as the nation’s “most profitable” artist, the Painter of Light™, and multimillionaire. He was profiled in the New Yorker by Susan Orlean.

I first learned about the dark side of the Painter of Light™ — sorry, couldn’t resist that one — when I reviewed “his” novel, “Cape Light,” in 2002. The novel, first in a series, was produced much as his paintings are: by a semi-industrial process in which low-level apprentices embellish a prefab base provided by Kinkade. He wasn’t the only artist to work in this way; he wasn’t even the only novelist. To the best of my knowledge, his novels — heartwarming, fuzzily pious tales of small-town life — have been coming out ever since, one more facet of a lifestyle brand that, at its most ambitious, included an entire Thomas Kinkade-themed housing development.

My review was just a goof intended to amuse Salon’s readers, but after it appeared, I began to receive emails from people who had sunk their life savings in Thomas Kinkade Signature Galleries (essentially, mall and shopping-district outlets for his prints) and been fleeced. I didn’t really understand how the financial architecture of Kinkade’s gallery empire worked, and I sure didn’t share their taste in wall art, but these people struck me as decent and sincere. They’d believed in Thomas Kinkade — not just in the man or the company, but in the ethos supposedly represented by his work, one in which (to quote Kinkade’s introduction to “Cape Light”) “people have the time to savor life’s simple pleasures” and lead “deep, satisfying lives.”

My conversations with these victims made me uneasy. Was there some relationship between the franchisees’ naivete, perhaps even their willful self-delusion, and their terrible taste? Was it hopelessly snobby to wonder that? What about Kinkade himself? He seemed to be at best a hypocrite and at worst a crook. Was there a meaningful connection between his bad conscience and his bad art? German thinkers of the 1930s would have said so, and they had plenty of opportunity to observe bad fascist art up close. Hermann Broch maintained that someone who chooses to make kitsch is “ethically depraved, a criminal willing radical evil.” The novelist Milan Kundera believes kitsch to be the natural expression of totalitarianism. That’s a lot of moral weight to place on a bunch of garish cottage paintings, but Kinkade was always the first to present his work as a form of ideology.

I felt compassion for the ripped-off gallery operators, and at the same time I was aware that quite a few of them had probably also fallen for the similarly sanctimonious, bogus folksiness of George W. Bush, thereby subjecting our nation to one of the worst presidents in its history. Kinkade and Bush struck me as of a piece, probably because they had both borrowed from Ronald Reagan in promising that we could get back to a better way of life that never existed in the first place. In nearly every encounter with the press, Kinkade delivered a diatribe against the art-world “establishment” that had shut him out. They were “elites” touting unfathomable, downer junk to hardworking people who needed uplift instead. Art snobs were the aesthetic counterparts of the so-called liberal elites, a group that surely included me.

At the same time, I must admit that I, too, like a cottage. Granted, I like the stylized, art-deco kind painted on bone china, rather than the insanely detailed and phosphorescently lit specimens in Kinkade’s pictures. And I’m in little danger of equating my new teacup with a Brancusi just because it’s cheerier. Nevertheless, I suspect that my idea of what’s pleasing about a cottage isn’t too different from that of Kinkade’s fans: an aura of harmless coziness, of modest domestic beauty and comfort not too cut off from the past. It’s as if we’re speaking the same word, but in different languages.

I suspect this is why Kinkade’s paintings have exerted their weird, hypnotic effect on me. They are so preposterous (especially the stream-side ones; he really needed to sit down with an architect and go over the basics of drainage), so awful. And yet I can still detect — beneath that cacophony of hollyhocks and cobblestones and snapdragons — the whisper of something intelligible. I’m pretty sure I know why the hordes of Kinkade collectors love his work, even if I don’t like it myself. Kinkade’s paintings are irredeemably false, like all kitsch, but through them you can just barely glimpse the honest desires they seek to exploit, sinking under the dreck.

Kundera defined kitsch as “the absolute denial of shit,” meaning it offers an airbrushed, sterilized, sentimentalized view of the world. From that, it doesn’t necessarily follow that art wallows in shit, but art doesn’t exist for the primary purpose of denying it, either. Kitsch is, first and foremost, a lie; its very existence is founded on bad faith.

Kinkade, like Bush, peddled a falsely simplified image of the world — one without mildew or flooded basements, for one thing — which, no surprise, turned out to be plastered over a whole lot of stinky stuff. The true believers, the ones who bought into these men the most during the 2000s, ended up paying some of the highest prices, from the Kinkade acolytes who invested in his gallery Ponzi scheme to the working-class red-staters who sent off their kids to die in a pointless war. Bad taste, harmless as it may seem, can end up costing you a lot.

Further reading

Los Angeles Times obituary for Thomas Kinkade

Susan Orlean’s 2001 profile of Thomas Kinkade for the New Yorker

A 2006 Los Angeles Times story documenting Kinkade’s business problems

Salon’s Janelle Brown visits Hiddenbrooke, a Kinkade-theme housing development in Northern California

Laura Miller reviews “Cape Light,” a novel by Thomas Kinkade and Katherine Spencer

Continue Reading Close
Laura Miller

Laura Miller is a senior writer for Salon. She is the author of "The Magician's Book: A Skeptic's Adventures in Narnia" and has a Web site, magiciansbook.com.

The memo Bush tried to destroy

A document advising the Bush administration against torture has resurfaced, despite his best efforts to hide it

George W. Bush in 2006 (Credit: AP/Ron Edmonds)

In February of 2006, Philip Zelikow, counselor to Secretary of State Condoleezza Rice, authored a memo opposing the Bush administration’s torture practices (though he employed the infamous obfuscation of “enhanced interrogation techniques”). The White House tried to collect and destroy all copies of the memo, but one survived in the State Department’s bowels and was declassified yesterday in response to a Freedom of Information Act request by the National Security Archive.

The memo argues that the Convention Against Torture, and the Constitution’s prohibitions against cruel and unusual punishment, do indeed apply to the CIA’s use of “waterboard[ing], walling, dousing, stress positions, and cramped confinement.” Zelikow further wrote in the memo that “we are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here, even when the prisoners were presumed to be unlawful combatants.” According to the memo, the techniques are legally prohibited, even if there is a compelling state interest to justify them, since they should be considered cruel and unusual punishment and “shock the conscience.”

Chillingly, the memo notes that “corrective techniques, such as slaps,” may be legally sustained, as might be “[C]ontrol conditions, such as nudity, sleep deprivation, and liquid diets…depending on the circumstances and details of how these techniques are used.” However much distress Zelikow’s memo caused the White House, it was not an ACLU briefing paper.

“I’m pleased the memo is now part of the historical record and available for study,” Zelikow wrote Salon in an email. The White House had determined that the memo — which was not binding since Zelikow’s was a bureaucratic position without legal authority — was too dangerous to exist. “I later heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed,” he said in a May 2009 congressional hearing.

At that hearing, before the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, Zelikow said he had “no view on whether former officials should be prosecuted,” a decision he thinks should be left to “institutions.” However, he did call for a thorough inquiry and a public report examining how the U.S. came to employ torture.

Of course, no such inquiry was ever launched. The Obama administration declined to revisit the U.S. employment of torture, with the president saying he didn’t want to “look back.” Zelikow believes this was a mistake. “I still believe an inquiry would be useful, though less so as time passes and more information becomes available, especially after the 9/11 trials conclude, hopefully this year,” he says in an email.

During his congressional testimony, Zelikow declined to say whether Department of Justice lawyers acted improperly or immorally, conceding only that their opinions were “unsound, even unreasonable.” But in a 2007 lecture in Houston, he had no problem saying “the cool, carefully considered, methodical, prolonged, and repeated subjection of captives to physical torment, and the accompanying psychological terror, is immoral.”

The importance of the memo lies in its revelation that there was real, serious debate inside the Bush administration about how to interrogate captured terrorist suspects. The members of the White House declined to enter that debate — indeed, they did their best to squash it. The destruction of Zelikow’s carefully reasoned memo suggests the White House did not want any record of alternative views even existing, lest they be considered reasonable or people get the idea that the torture policies were thought controversial even by members of the administration.

Continue Reading Close

Jordan Michael Smith writes about U.S. foreign policy for Salon. He has written for the New York Times, Boston Globe and Washington Post.

Page 1 of 436 in George W. Bush