Bruce Shapiro

By all accounts it was Wilson — a Clinton appointee from Tampa, Fla. — who most definitively took the Little Miami team to the cleaners, wondering how a 6-year-old could possibly be competent to fill out an asylum form, which asks — among other things — whether the applicant has associated with political, paramilitary or human rights groups.

“I’m sure Elian Gonzalez is a very bright and intelligent 6-year-old, but he didn’t even have the ability to sign his last name on the asylum petition,” Wilson observed.

On the other hand, Edmondson, a Reagan appointee, ruminated on Juan Gonzalez’s determination to return Elian to “a Communist, totalitarian state.” He compared it to cases where courts have found parents’ wishes “conspicuously in conflict with the needs of the child” — as when children are denied medical care for religious reasons, for instance.

On the surface, it is hard to see today’s appeal as anything but another judicial Bay of Pigs for the Miami relatives — a doomed beachhead, like all their gambits since Elian’s arrival. “Whether or not Lazaro Gonzalez wins this appeal, he loses the case,” says professor David Cole of Georgetown University Law Center, who has handled high-profile immigration appeals.

There is simply no precedent to support a 6-year-old’s asylum claim, and no facts on the record about either his father or Cuba to support it. The Immigration and Naturalization Service and a Miami federal judge have already rejected the asylum application the relatives filed on behalf of Elian. Even if Lazaro’s Miami lawyers win Thursday’s arguments, all they achieve is an asylum hearing for Elian before an INS which already declared the idea of this boy’s political persecution nonsensical.

And there is no appeal to federal courts for INS rulings: Just ask the thousands of undocumented immigrants languishing in immigration jails awaiting deportaiton.

But the Miami relatives are not really banking on an asylum win. Instead, Lazaro and the Cuban-American political strategists behind him are playing for something far more fundamental: time.

Why time? Perhaps in hopes that father Juan will decide to stay in the United States. More likely, with the expectation that if they draw the case out until November, the presidential election will bring an attorney general more friendly to their cause.

“November is an important date,” says Mike Wishnie of New York University Law School, an immigration law specialist. “The dynamic of the presidential election changes everything. If they can keep the case going until November, and convince the 11th Circuit to extend the injunction keeping Elian here pending appeal, Janet Reno may be reluctant to act” on the boy’s deportation.

What is more, alone among the huddled masses yearning to breathe free, Cuban emigres get special status on this country’s shores, thanks to the massive influence of the Cuban-American lobby. Under the little-known Cuban Refugee Adjustment Act, undocumented Cubans here for a year can be granted permanent residency status — a green card — at the discretion of the U.S. Attorney General.

Elian’s year is up on Thanksgiving, and if Lazaro can hold onto his case by his fingernails until January, a new attorney general could make that decision with no input from courts, Congress, Craig or anyone else. With Elian even the unwitting recipient of a green card, the case could abruptly shift to the very arena that the Miami relatives have always sought: Florida’s elected family courts.

Is such a delay conceivable? NYU’s Mike Wishnie speculates that Edmondson, Dubina and Wilson could return the case to federal district court in Miami for a factual hearing, simply to definitively determine whether Elian would or would not be in any jeopardy at home in Cardenas, Cuba.

“I don’t think it would be unconscionable as a bottom-line decision to say the courts ought to have some jurisdiction” over children’s asylum cases, Wishnie says. Such a factual hearing could alone take months.

Wishnie also points out that the intensity of the judges’ attention to Elian today was a notable contrast with the way children are routinely treated in immigration cases. Some 4,000 undocumented minors now reside in immigration prisons around the country — often used, Wishnie notes, “as bait” to lure their equally undocumented parents into custody.

Even if Edmondson, Dubina and Wilson rule against the Miami relatives in early June, they might extend their injunction keeping the boy on U.S. shores pending appeal. Uncle Lazaro would then have 45 days to ask for a hearing before the entire 11th Circuit Court of Appeals — mid-July at soonest, more likely August by the time a ruling comes in. Then he’d have another 90 days to appeal to the Supreme Court — taking Elian, his father and their entourage to the very cusp of November.

A slender thread? Perhaps. But Cuban exiles have been trafficking in dubious hope for decades, and winning unlikely political victories — even as their ultimate goal, Castro’s overthrow, eludes them. And since Little Havana’s political leadership has already shown itself willing to sacrifice both Miami’s stability and Elian’s welfare in their vain poker game with Castro, there is no reason to think they will not play to the very bottom of the deck.

Those who believe Thursday’s hearing will be Little Havana’s last stand are not reading either the law or the calendar.

In the weeks immediately after Sept. 11, Ashcroft’s steely glint and Walter Winchell delivery suggested that he would be what Al Pacino in “The Godfather” calls a “wartime consigliere.” Under his command, the Justice Department unleashed the most aggressive rollback of civil liberties since the early Cold War. “We’re likely to experience more restrictions on our personal freedom than has ever been the case in our country,” went one particularly grim assessment. The source was not the American Civil Liberties Union, but U.S. Supreme Court Justice Sandra Day O’Connor, speaking with law students after an emotional visit to the World Trade Center. The government, she warned, might well “rely more on international rules of war than on our cherished constitutional standards for criminal prosecutions in responding to threats to our national security.”

To be sure, nothing in the past 12 months equaled the breadth of the McCarthy-era purge, which extended from teachers to screenwriters to government bureaucrats. Instead, Ashcroft’s domestic war has been narrowcast, deliberately aimed at issues and constituencies presumed to be of little interest to the general public. Over 1,200 immigrants have been secretly jailed. The Freedom of Information Act has been upended. Secret wiretaps and break-ins for loosely-defined national security cases have been unleashed. The sheer number of individuals secretly jailed or interrogated or deported dwarfs anything in the McCarthy era — an ironic outcome for year spent in defense of democracy.

Yet a year on the Bush administration’s domestic anti-terrorism agenda has in significant ways stalled — and Ashcroft himself is the reason. Tuesday’s anxiety-provoking warnings were delivered by the same attorney general who in June called an unplanned televised press conference from Moscow to announce the disruption of “an unfolding terrorist plot” with the arrest of former Chicago gangbanger Jose Padilla — a characterization of a small-fry al-Qaida wannabe swiftly torpedoed by an embarrassed White House and FBI. It’s the same attorney general who infuriated top Bush officials by covering up the FBI’s bungling of pre-Sept. 11 intelligence. It’s the same attorney general who became an overnight joke for enlisting the cable guy in his Operation TIPS program.

The point is not whether those al-Qaida threats announced Tuesday are substantial — but that with Ashcroft, it’s impossible to know. And that’s an immense problem for a public trying to sort fact from paranoia, genuine security from presidential power grab.

Over the past 12 months, Ashcroft has made a science of high-profile threat reports, disguising the fact that his Justice Department has made little progress in identifying or stopping al-Qaida activity. Even most of the intelligence leading to Tuesday’s press conference came from European police departments or from al-Qaida members apprehended abroad, and a draft United Nations report recently found little evidence that U.S. efforts to halt al-Qaida financing have had much impact.

And with the courts, the Ashcroft Justice Department’s credibility is even lower than with the public. Consider the top-secret Foreign Intelligence Surveillance Court — not exactly a hotbed of liberal sentimentality. Meeting in a guarded, locked room on the highest floor of the Justice Department, this is a court which in 25 years has never met a wiretap it didn’t like. Its judges routinely consider the most sensitive national security questions and have signed off on over 10,000 warrants.

So when this secret court publicly kicked John Ashcroft in the teeth in a decision released last month, it was clear something was going on. The court was set up in the aftermath of Watergate and the revelations of FBI abuses in the 1960s and ’70s, to make sure that the kind of raw intelligence needed for foreign intelligence would not be abused in criminal investigations or politics. In fact, the court has not once rejected a national security wiretap application and has, case by case, allowed foreign-surveillance information to be shared with prosecutors.

But when the Bush administration asserted that the USA PATRIOT Act allows a wholesale blurring of the line, with criminal investigators directing “national security” investigations, the judges went ballistic — revealing 75 recent cases in which FBI agents “misled” the court, “a troubling number of inaccurate FBI affidavits” and repeated “violation of the Court’s orders.” The judges’ point: Ashcroft and the FBI are not to be trusted with new power when they have abused the power they already had. Finally, the court concluded, the post-USA PATRIOT policies proposed by Bush “are not reasonably designed” to protect the privacy of law-abiding citizens.

Ashcroft spokeswoman Barbara Comstock made much of the fact that these documented abuses happened on Bill Clinton’s watch, but that is precisely the judges’ point: The abuse of power transcends particular administrations. So ready is the FBI to lie in order to stretch the limits of legal surveillance that the court now refuses to accept testimony from the FBI agent in charge of monitoring Hamas.

Blunt as that rebuke by the surveillance court was, it was a love letter compared to the reception the administration’s secret deportation hearings received just a few days later, when another unanimous panel of federal judges — this an appeals court in Cincinnati — slammed the Justice Department’s secret deportation hearings. “Democracies die behind closed doors,” wrote Judge Damon Keith for the U.S. Court of Appeals for the 6th Circuit.

Last year, the INS began deportation hearings against Rabih Haddad, head of a Muslim charity whose assets were frozen after Sept. 11. Ashcroft had asserted the unilateral right to close Haddad’s deportation hearings to press and public — an assertion challenged by Detroit newspapers and U.S. Rep. John Conyers, D-Mich.

The ruling by the 6th Circuit panel could not have been more unambiguous, with the judges’ own sense of urgency and outrage clear from the speed with which the ruling was issued — just three weeks after argument. “The executive branch seeks to uproot people’s lives, outside the public eye and behind a closed door,” wrote Judge Keith, who was appointed to the appellate court by Democratic President Jimmy Carter. But “when government begins closing doors, it selectively controls information that rightly belongs to the people. Selective information is misinformation.”

An even broader case on secret immigration proceedings is on the docket later this month in Philadelphia, where a district judge ordered all immigration proceedings nationwide opened to the public in the absence of a good reason for secrecy.

What’s going on is that Ashcroft’s entire post-attack legal strategy, a strategy built on broad domestic surveillance and broader secrecy, is collapsing of its own extremity. It is no exaggeration to say that the nation’s federal judges — many of them appointed by presidents Reagan and Bush I — are now in open rebellion at the measures embraced by the current Bush administration, measures which these judges perceive as a naked power-grab by the executive branch.

Both the surveillance and immigration rulings make it clear that the Bush administration’s post-Sept. 11 policies are not just assaults on starry-eyed civil libertarianism — they are undermining public safety. It is harder to fight terrorism when judges cannot believe the Justice Department and FBI, when police agencies can not develop trusting relations in immigrant communities because of fear of deportation or secret charges.

It’s hard to avoid the conclusion that, far from being a “wartime consigliere,” Ashcroft has turned out a colossal failure even on the administration’s own terms, leading the White House down a succession of blind alleys. Secret military tribunals, secret deportations and secret wiretap expansion have all turned into highly publicized failures. Congress, which last fall rolled over for the USA PATRIOT Act, is finally beginning to ask questions. The proposed Homeland Security department is frozen in the U.S. Senate, and in the House, Wisconsin Congressman James Sensenbrenner, the conservative, law-and-order chair of the House Judiciary Committee, says he is ready to “start blowing a fuse” over the administration’s addiction to secrecy and obsession with restoring the imperial executive.

There is ample evidence that Ashcroft has lost his White House support; recent news reports promoting the anti-terrorism labors of Solicitor General Ted Olsen suggest the stage is already being set for a successor. Religious conservatives, once Ashcroft’s effective claque, now bridle at his plans to let the FBI spy on religious communities and follow their financial trails. Politically, Ashcroft is a man without a country — a liability to the Bush administration, an irritation to Congress and an embarrassment to the conservative constituencies which sponsored him.

It’s clear that in the weeks and months after Sept. 11, Ashcroft and the Bush administration repeatedly misread the tolerance of today’s courts and public. In the same New York talk in which she prophesied new restrictions, Justice O’Connor — the conservative Reagan appointee — issued a pointed warning, unheeded at the time, of the need to “maintain a fair and just society with a strong rule of law at a time when many are more concerned with safety and a measure of vengeance.” A year after al-Qaida’s attacks, the honeymoon with Ashcroft’s vision of security is over.

Moussaoui would be a challenge for any judge. On the one hand, he seems to have a certain grasp of the facts of his case. Judge Brinkema noted yesterday that after she admonished him a week ago for drowning her office in motions and letters, he stopped — evidence, she said, of his bottom-line competence. He was examined by a court-appointed psychiatrist and found competent to represent himself, after he fired his attorneys. Part of his presentation Thursday made a certain kind of sense. He hinted that he might have provided a “safe house” and “training” to some of the Sept. 11 crew, but had no knowledge of their actual plans. He made it clear that he wants to spare himself a death sentence by appealing to the rational side of a jury, even though he regards all Americans as an “enemy.”

But alongside such moments of clarity have been many more examples of a mind both more disturbed than may appear on the surface, and certainly inadequate to the high challenge of representing himself with a death sentence on the line. He has persistently accused the court of being in league with the FBI to kill him. He won’t answer letters from his former lawyers in the public defenders’ office, who remain on “standby” status and continue to argue that he should not be allowed to represent himself. His motions find elaborate conspiratorial patterns in the initials of government agencies, the name of the judge and other “data” — the kind of delusions portrayed in “A Beautiful Mind.” Even yesterday, it was clear that on a base level he did not understand the meaning of a plea, let alone how to plea-bargain on his own behalf.

Why should any of this matter? For one thing, most Americans would agree that any individual operating outside the boundaries of sane judgment shouldn’t be allowed to represent himself in a death penalty case — even one involving Sept. 11. What’s more, Moussaoui shows all the signs of the kind of narrow but deep mental illness that if indulged — as Judge Brinkema so far has — can turn court proceedings upside down.

More than anything, Moussaoui’s courtroom behavior is reminiscent of the courtroom antics of Colin Ferguson, the notorious Long Island Railroad shooter. Ferguson, you’ll recall, convinced a New York judge that he should be permitted to fire his lawyers and represent himself. His “defense” consisted of promulgating paranoid race theories, badgering witnesses and survivors, ducking and weaving before the witness stand and generally turning his trial into a circus. And Ferguson, it must be said, was F. Lee Bailey compared with Moussaoui, who judging from his statements hasn’t the slightest understanding of how a courtroom works.

Ferguson and Moussaoui seem to have in common the kind of disturbed mental state that disguises deep paranoid delusions behind a seeming ability to grasp day-to-day facts. Moussaoui, like Ferguson, understands 2 plus 2 — but his writings suggest a mind in which 2 plus 2 equals 5, not a formula for any kind of credible outcome in so fraught a case. It’s possible that he’s just playing crazy — crazy like a fox — but his behavior is so erratic, with flashes of lucidity, that the possibility seems increasingly unlikely.

Certainly the victims of Sept. 11 deserve better than a trial being driven by a defendant’s delusions. And frankly, so does Moussaoui. It’s still possible that Moussaoui is not the “20th hijacker” the government says he is. Already the prosecution has withdrawn the claim that he was interested in crop-dusting airplanes. While the Justice Department’s death-penalty indictment accuses him of participation in the deaths at the World Trade Center and Pentagon, there is no evidence so far that directly links him to the Sept. 11 conspiracy.

While members of that conspiracy were carefully and discreetly learning to fly commercial jets, Moussaoui was taking lessons on a Cessna, drawing attention with his bizarre and indiscreet statements. It’s hard to imagine the tight, deliberate Hamburg terrorist cell risking its “martyrdom operation” on such an incoherent and weak character. It’s possible he attached himself to them anyway. It may well turn out that he was simply a hanger-on, a troubled personality who attached himself to al-Qaida and provided a U.S. contact to the conspirators with no further involvement. It may turn out that he was part of a different scheme altogether. Whatever the story, there is plenty of reason to think that John Ashcroft’s Justice Department “overcharged” Moussaoui to get a death-penalty-friendly jury — jurors who say they’ll award the death penalty tend to be more conservative and pro-prosecution, on all issues, than those who won’t — and secure a quick conviction.

But there’s a risk to imposing a death sentence under such circumstances. Part of the risk is of turning a marginal and mentally ill bumbler into a martyr, the inspiration for future suicide bombers. If Moussaoui is al-Qaida, better he should be consigned to the anonymity of the federal prison system than be allowed to turn his own trial into a martyrdom operation. And if he is not, we need to know that.

It’s also important to demonstrate that American courts will not run roughshod over a clearly disturbed defendant, even in a terrorism case. This matters to our allies in Europe, to France in particular. Already, Europe is refusing to extradite al-Qaida suspects if they might face capital charges. France is alarmed at the prospect of its citizen facing a death sentence. The express-train conviction of an incompetent Moussaoui will anger many Europeans, while a sensible resolution of Moussaoui’s case — either returning him to the protection of his attorneys, or a genuine plea-bargain that secures his testimony and saves his life — will demonstrate the capacity of American courts to deliver justice even under the most emotional circumstances.

Brinkema can at least partly short-circuit this coming courtroom catastrophe by withdrawing her permission for Moussaoui to represent himself. Yesterday, she reaffirmed her decision, but she may still change her mind. It is also hard to imagine that experienced federal prosecutors are looking forward to trying Moussaoui, given the careening course of his pretrial hearings. But it is Ashcroft and the White House, not those career prosecutors, who are driving the car on the Moussaoui case. Several times in recent months, an overzealous and overheated attorney general has embarrassed and infuriated the White House and even damaged the administration’s conservative base in Congress. The spectacle of Moussaoui’s delusions and ignorance driving the only Sept. 11 prosecution ought to cause the administration to seek a reasonable and reasoned plea bargain that ensures Moussaoui legal representation, removes the death penalty from the table, gains his participation in the ongoing al-Qaida investigation, and convicts him of whatever he really did — rather than seeking a Sept. 11 scapegoat at any cost.

With the political aftershocks of Sept. 11 only now beginning to be felt in Washington, it’s especially important to recall the real lessons of Watergate. Thirty years on, it is easy to forget that “Watergate” was really misleading shorthand: It was shorthand not only for the 1972 break-in at Democratic National Committee headquarters and Nixon’s subsequent coverup of campaign shenanigans, but also for a vast array of domestic spying and other executive-branch abuses, which the Nixon crew perfected but did not invent.

It is fashionable now to blame Watergate on Nixon’s paranoia and rogue personality. But the crimes of Watergate grew directly from the kind of unchecked presidential powers now sought by the Bush administration both at home and abroad. FBI spying on political rallies and religious communities? The White House plumbers practiced their tradecraft breaking into the psychiatric records of dissident Defense Department analyst Daniel Ellsberg. The “enemies list” grew from FBI director J. Edgar Hoover’s decades of spying on religious, civil rights and peace groups.

Expanded paramilitary covert operations abroad? The Watergate break-in team was conscripted from the CIA squad for covert Cuban operations. Restrictions on the flow of information to Congress and the public? The direct complicity of Nixon and other high officials in Watergate was proved only because senators who had subpoenaed White House records refused to knuckle under to claims of executive privilege — a drama being replayed this month with Sen. Joseph Lieberman’s subpoenas regarding the involvement of Cheney and other White House officials in Enron.

One particular lesson of Watergate deserves close attention these days, and that’s the lesson we learned about the power of the attorney general. Actually, we learned two contrasting lessons.

Start with Nixon attorney general John Mitchell. From the moment of Nixon’s inauguration Mitchell was obsessed with partisan secrecy, with a crabbed and narrow vision of law enforcement, and with the intimidation of critics. His Justice Department fought the New York Times’ publication of the Pentagon Papers, the internal secret history of the war in Vietnam; concocted fraudulent charges to jail antiwar dissidents like Jesuits Daniel and Phillip Berrigan, absurdly accused of plotting to kidnap Henry Kissinger; wiretapped aides suspected of disloyalty; launched a doomed war on drugs; and tried to pack the Supreme Court with conservative ideologues. Up to his eyeballs in Watergate sewage, Mitchell claimed it was all in the interests of law and order, and to the bitter end of his tenure used his office to intimidate opponents and keep information from Congress.

The lesson: Without the active collaboration of an attorney general, Watergate would never have happened. Mitchell gave law-and-order cover to a lawless administration.

Lesson No. 2 comes from another Republican, President Ford’s attorney general, Edward Levi. No left-winger, Levi saw his job as restoring public confidence to a Justice Department tainted by Watergate and related scandals. To Levi fell the delicate job of reforming the FBI. What he produced were guidelines that did not prohibit the bureau from collecting information — but did require suspicion of wrongdoing beforehand, and a paper trail to prove it.

Ashcroft, too, runs a Justice Department and an FBI in desperate need of restoring public confidence. Today’s “What did Bush know?” scandal comes on top of Wen Ho Lee, Robert Hanssen, and other embarrassing cases. Ashcroft could have learned a lot from Levi’s transparent and nonpartisan approach to reform.

Instead, Ashcroft has played to fear. Earlier this month, when he tossed Levi’s domestic-spying guidelines into the compost, Ashcroft misleadingly told the public that FBI agents had been prevented from surfing the Internet, monitoring public rallies and attending religious services. Nonsense.

Under the Levi guidelines, any of those investigation and surveillance activities were possible and, indeed, common — so long as agents had at least a slim pretext for engaging in them. Just last week I was on a panel with Laurie Levenson, a former assistant U.S. attorney in Los Angeles, who recalled accompanying FBI agents to photograph political rallies in the not-so-distant past, fully authorized by the Levi guidelines. Besides, the question has never been just whether the FBI can attend public events, but what agents can do with the information they collect. My own filing cabinets are filled to overflowing with papers released under the FOIA that document the bureau’s old pre-Levi practices, like monitoring the speeches of dissenters, disrupting protest groups, and otherwise intruding on the most basic rights in ways that had nothing to do with public safety. Ashcroft’s new guidelines could easily return the FBI to those lawless days — a prospect, by the way, that many of today’s generation of agents do not look forward to.

Ashcroft’s religious piety may disguise his resemblance to the famously profane Mitchell. But beneath the surface this attorney general is all Mitchell: fighting congressional requests for information on whopping FBI scandals like the conviction of Boston FBI agents for conspiring with mobsters; accusing critics like Sen. Patrick Leahy, D-Vt., of endangering the United States; promoting a White House obsession with secrecy unmatched since, well, Richard Nixon.

Finally, it is crucial to remember how deeply Watergate was rooted in the Nixon administration’s determination to interfere unilaterally and often secretly in the affairs of countries around the world. The administration’s profound addiction to domestic spying really took flight with the secret bombing of neutral Cambodia and the protests that erupted when that horrific campaign became public knowledge. Awful as the crimes of Watergate were, they were a pale domestic reflection of how an unrestrained presidency exercised power in Southeast Asia, Chile and elsewhere — parts of the world that are still recovering. Then as now, there was a continuity, all too easily overlooked, from an administration’s claims of executive privilege at home to unilateral action abroad.

It is really only in the light of Watergate that the Bush administration’s actions since Sept. 11 make sense. Just as the Reagan administration saw its job as undoing New Deal-descended corporate regulation, so has Bush & Co. systematically exploited the terror attacks to undo Watergate-era reforms reining in the executive branch. Each day’s tit-for-tat, blame-the-other-guy leaks from the FBI and CIA make it more and more clear that prior to Sept. 11 neither agency suffered from an inability to spy, wiretap or otherwise collect information. Instead, the administration has shrewdly manipulated public opinion to accomplish something sought by Watergate-era Republicans like Cheney and Rumsfeld ever since: a restoration of the imperial presidency.

Over the last few days, debate has raged over whether the Boston Phoenix and its publisher, Steven Mindich, were justified in posting a prominent link to the Pearl murder video — the first direct access provided by a U.S. news organization, in direct defiance of the wishes of Pearl’s family.

In a way, I am precisely the individual Mindich had in mind. I never would have spent even three minutes burrowing through Google to find that video; the search would have seemed like a voyeuristic quest. The Phoenix’s one-click link changed that. I justified viewing by telling myself that I am a reporter who writes about terrorism and violence and crime. I am a reporter and have a responsibility to witness atrocity, I said, even if it is through the video lens of its perpetrators.

But let’s be honest. Of all the pundits who have weighed in for and against the Phoenix’s posting, I have found not one who admitted searching the Internet for the Pearl video prior to Mindich’s decision — which I or any of us would have done if gaining some insight into Pearl’s killing was our most important motivation. No, it’s just that the Phoenix made it so easy to indulge tabloid, voyeuristic, ambulance-chasing bravado, my own included.

What is really at stake here? A few weeks ago, the FBI very nearly made the Pearl video a censorship issue by trying to convince Web site Prohosters.com to removing it from a customer’s site. Prohosters properly refused. By the time the Phoenix posted its link to Prohosters, defending free speech was simply off the table. Nor could the Phoenix claim to be publishing some previously unavailable material. All publisher Mindich was doing was promoting the video, encouraging more widespread viewing of a sick and troubling document.

So was he justified? Reporters, photographers, editors and producers are continually making decisions about the outer limits of acceptable brutality. From the most anonymous crime scene to world-scale wars and disasters, the choice of what to show and not show is made in newsrooms every day. And it is a hard job, balancing the sensibilities of survivors, real news value and demands of editors clamoring for sensational front pages. I remember a photographer on one of my first newspaper jobs threatening to quit if the editor ran a particularly gruesome photo of a car wreck. David Handschuh of the New York Daily News says he will simply never print many of the pictures he shot of victims at the World Trade Center on Sept. 11. These are questions not just of “taste” but profound judgment calls about whether explicit images really aid public understanding — or simply cause private anguish for victims while brutalizing public sensibility.

Mindich himself gives one argument for promoting the tape of Pearl’s killing: It is the only way to appreciate the magnitude of what we are up against. “If there is anything that should galvanize every non-Jew-hater in the world — of whatever faith or of no faith — against the perpetrator and supporters of those who committed this unspeakable murder — it should be viewing this video,” he writes. Others, including Salon’s Samuel G. Freedman (who I have known and admired for years), amplify Mindich’s argument, comparing the tape to the famous Vietnam photo of a naked and burned girl fleeing American napalm, or the first explicit photos of Nazi death camps.

All of which might make sense as an argument to rile up a complacent nation, if Americans remained unconcerned about the threat posed by Pearl’s violent, fundamentalist, anti-Semitic killers. In the cost-benefit analysis of media, shocking an apathetic public into action can justify a lot of tough decisions.

But is that kind of genuine shock value justified here? Since Sept. 11, the American public has been drenched with images of flaming skyscrapers, the sight and sound of bodies falling to the sidewalk, the bloody aftermath of suicide bombings in Israel. It hardly took Pearl’s video to convince most Americans, and much of the rest of the world, that al-Qaida and allied violent sects represent a real threat. Somehow the nation stood behind President Bush’s decision to oust the Taliban without viewing Pearl’s decapitation.

That famous Vietnam picture had meaning because of a raging debate over the morality of American bombing and the justification for the war’s escalation. The Pearl tape touches no such divide — certainly not in the United States, the only audience likely to seek out a Boston alternative weekly. Photos of Auschwitz documented unprecedented atrocity on a mass scale that literally could not be believed. The Pearl murder video accomplishes no such documentation; its details have been published, and excerpts of Pearl’s coerced statements broadcast, for months. The Phoenix upped the ante on brutality, but added nothing to public knowledge or debate.

I’m even more troubled by another argument made by some of Mindich’s defenders: that the sensibilities of victims — like Daniel Pearl’s family — are not the problem of reporters. Something called news value trumps the desire of Pearl’s family to keep circulation of his murder video to a minimum, just as it does when reporters knock on the doors of “ordinary” survivors of high-profile crimes.

I’ll have to confess that this is not an abstract issue for me. Eight years ago I was stabbed by a psychopath in a New Haven cafe, along with six other people, and a local television news crew captured the image of my bleeding body on a gurney. The repeated replaying of that footage on television, the pursuit of some victims by aggressive camera crews, still stand out for the distress they engendered in my family and myself, for months afterward. On the other hand, some reporters handled the story with the greatest respect, which went a long way toward convincing me that my profession was not hopelessly cynical.

The idea that tossing the desires of Pearl’s family into the ashcan is “just what journalists do” is only a cover for indiscriminate National Enquirer logic. In fact, some reporters and editors years ago began challenging the old “if it bleeds, it leads” sensibility with careful judgments about the impact of news decisions on victims. Few newspapers now print the names of rape victims — once commonplace. In televised murder trials, gruesome crime-scene photos are usually kept off-camera and off the front pages. To claim that dismissing the concerns of the Pearls is “just our job” disrespects these complex ethical decisions made in newsrooms every day.

We journalists too often use the First Amendment as cover for shrugging off the consequences of our news choices on the individuals we cover. Yet the extraordinary power of stories and images to injure their subjects, to rob those depicted of dignity and to stimulate the worst human impulses, is one of the reasons freedom of the press is such a high-stakes commitment for a democracy.

From the Oklahoma City bombing and now al-Qaida’s attacks, the American press has learned a lot about dignified and respectful reporting on victims of atrocity — think of the New York Times’ “Portraits of Grief” series. Hard decisions about which images to broadcast and print will emerge with greater frequency as the anniversary of Sept. 11 approaches. But far from clarifying the issue, the Boston Phoenix’s promotion of the Daniel Pearl murder video — publicizing a paranoid propaganda tape and encouraging voyeurism at the expense of a dead reporter’s family — only muddies the difficult choices to come .