Forget the Clinton pardons and forget Vice President Crashcart’s latest heart attack. Forget, even, the tax-cut debate. If you truly want to understand where Washington is headed in these first months of the Bush administration, take a look at this legislation being rammed through Congress by the GOP, euphemistically described as “bankruptcy reform.”
Thanks to assiduous efforts by credit card companies and banks, the House rushed through a bill on March 1, with scant media attention, that would make it radically more difficult for middle-class consumers to escape overwhelming consumer debt and make it a lot more likely that families will lose their homes and cars. The Senate is preparing for a rapid vote on the same measure.
Consider the assessment of these reforms by former federal bankruptcy judge Francis Conrad, an internationally regarded authority who has counseled the World Bank and helped the Czech Republic, Romania and the Philippines establish modern bankruptcy systems. Conrad is no sentimentalist. In 10 years on the federal bench, this hard-nosed jurist and financial analyst supervised the liquidation of the scandal-ridden junk-bond firm Drexel Burnham Lambert, and brought the New York Post back from the brink of extinction. What does Conrad think will happen if the brand of “bankruptcy reform” currently being peddled in Congress passes?
“People will be forced to pay the credit card companies — instead of buying food, instead of paying alimony,” he says. “You will create poverty.”
Just how a bankruptcy bill that sticks it so thoroughly to the middle class came to be the No. 1 priority of the first Bush-era Congress is a study in influence-peddling. But the story is also deeper: The legislation before Congress this week is the culmination of a little-noticed campaign — all the way up to Supreme Court Chief Justice William Rehnquist — to fundamentally change the direction of America’s bankruptcy courts.
Personal bankruptcy is not exactly an easy subject for political conversation. No one likes to think about how their finances are teetering — or tanking. And yet it matters: 1.2 million households received bankruptcy protection last year, and another 15 million in the past decade, according to the Justice Department. And the bankruptcy safety-valve only grows in importance as the economy slows, with more families feeling the sudden pinch of joblessness.
Personal bankruptcy is a compassionate American tradition going back to the earliest days of the Republic, when debtors’ prisons were replaced with an orderly legal process. As far back as 1831, this national commitment to giving overwhelmed individuals a fresh start won the admiration of Alexis de Tocqueville. “In America there is no law against fraudulent bankruptcies; not because they are few, but because there are a great number of bankruptcies,” he wrote in “Democracy in America.” “A sort of guilty tolerance is extended by the public conscience to an offence which everyone condemns in his individual capacity.”
Banks and credit card companies — which cannot collect consumer debt once courts grant families protection — started lobbying heavily to change all of that more than two years ago, pumping millions into congressional coffers. Credit card companies and banks together gave $37.7 million to candidates and parties in 2000, according to Federal Elections Commission figures analyzed by Public Campaign, the campaign-finance-reform lobby. That’s up 75 percent from 1998. And 61 percent of last year’s donations went to Republicans.
President Bush — who has indicated he’ll sign the bankruptcy reform, unlike Bill Clinton, who vetoed it last year — has his own special relationship with the credit industry. MBNA America, the nation’s largest single credit-card issuer, was also the nation’s single-largest single supporter of the George W. Bush campaign, with $240,700 in hard-money donations. And the company’s CEO, George Cawley, was a Bush “pioneer” — a select group whose members personally raised at least $100,000 early in the campaign.
And what, exactly, do we get with this express-track bankruptcy bill? It would give credit card companies first dibs on bankrupt consumers’ debts — ahead of any other bills except for child-support payments (an amendment tacked on in the House to placate reluctant moderates). It will establish for the first time an income-and-assets test for those applying for Chapter 7 bankruptcy, which dissolves most debts and allows families to keep their homes and other essential possessions. This “means test” would drive hundreds of thousands of families each year from Chapter 7 into Chapter 13. That requires repayment of many debts, and makes it more difficult to keep those essential assets.
In pushing bankruptcy reform forward, the industry’s closest allies in Congress, including bill sponsors Rep. George Gekas, R-Pa., and Sen. Charles Grassley, R-Iowa, argue that consumer irresponsibility is at the root of the overwhelming number of filings. Grassley has gone so far as to declare that the recent rise in bankruptcy filings is “the result of the eroding moral values of some people.”
Yet that argument is belied by the credit industry’s own aggressive marketing. Even while complaining of consumer irresponsibility, credit card companies are marketing their Visas and MasterCards and Discovers ever more aggressively, extending consumer credit to unheard-of heights, and returning with unprecedented profits. According to the Consumer Federation of America, in the third quarter of 2000 alone, credit companies mailed out 2.5 billion solicitations, extended 13 percent more credit than a year earlier and enjoyed profits at a five-year high.
The legislative angle of the bankruptcy bill, however, is only one half of the campaign to change bankruptcy protections. As with so many other hot-button legal issues, this pivotal debate now playing out in Congress owes much to the long arm of Chief Justice William Rehnquist.
In 1994, amid growing concern over sharply rising personal bankruptcy filings, Congress created a federal Bankruptcy Commission to consider whether changes to the current system (which dates back to 1980) might be in order. Congress, the president and the chief justice each were allocated appointments to the nine-member panel. Rehnquist took the opportunity to name Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit (Ronald Reagan’s Supreme Court nominee who withdrew after admitting he’d smoked pot) and Judge Edith Jones, of the Fifth Circuit Court of Appeals. Both Ginsburg and Jones are prominent exponents of the so-called “Law and Economics” school of conservative judicial thinking, whose conferences and publications are routinely sponsored by large corporations and other business interests.
After two years of contentious hearings, a majority of the bankruptcy commission voted to support a report that declared the roots of the bankruptcy crisis caused by a growing rift between wages and debt. The commission supported a series of reforms widely regarded by consumer advocates and legal moderates, including President Clinton, as balanced. The reforms included measures such as clear rules on when the victims of corporate abuses (like women with Dow Corning breast implants) can join the line of creditors seeking part of a bankrupt corporation’s assets.
But Rehnquist’s commissioners, Ginsburg and Jones, along with two commissioners named by then-House Speaker Newt Gingrich, dissented from that analysis and those proposals. In particular, Jones — as a Texan, now high on the list of possible Bush Supreme Court nominees — became one of the most influential and acerbic voices in the bankruptcy debate, with the ear of bankruptcy reform sponsors Grassley and Gekas. In 1999, Jones told Congress that credit card companies are being “demonized” in the bankruptcy debate. What’s really needed, she said last fall, is to send “an important moral signal” to consumers who are “violating their promises willy-nilly.” Today’s steep increase in bankruptcy filings, she wrote in a 1998 law review article, should be blamed not on the growth of consumer debt but on student loans, a higher minimum wage and high tax rates.
Jones accuses critics of pro-bank bankruptcy reform of “standing in the way of history.” And she says middle-class consumers should “pay for the privilege” of bankruptcy protection by paying back a higher portion of their assets.
Jones does not limit her conservative bankruptcy agenda to lobbying Congress. As an appellate judge, Jones is periodically called upon to review the findings of bankruptcy court judges. While much of bankruptcy law rests on arcane procedures that do not easily translate into neat ideological categories, Jones, like some other conservative jurists, has had occasional opportunity to reinterpret bankruptcy law in creative fashion. Take the matter of child support. The current federal law allows bankruptcy judges to enforce child-support orders, even putting a lien on a deadbeat dad’s home if necessary. But in 1999, Jones wrote a Fifth Circuit opinion declaring that a local Texas “homestead act” trumps the federal bankruptcy code’s child-support protections. In effect, according to Jones’s ruling, any deadbeat dad in the nation need only buy a home in Texas to keep it safe from the court’s reach.
Jones’ opinion amounted to an unprecedented intrusion of old-fashioned states’ rights conservatism into the federal bankruptcy realm, eroding a national policy designed to protect single parents. If it were an isolated case of an activist conservative, that would be notable enough. But in New York, California and elsewhere, appellate courts dominated by Reagan and Bush nominees have followed Jones’ lead, intervening in similar ways in bankruptcy cases. In some cases, they’ve made it harder for citizens poisoned by corporate pollution to collect settlements; in others, they’ve declared rulings by longtime bankruptcy judges too “debtor friendly,” too soft on consumers.
If conservative jurists like Jones are remaking bankruptcy with their rulings and policy proposals, they are also quite literally changing the face of bankruptcy courtrooms. Under law, the country’s bankruptcy judges are appointed by the federal appeals courts for the region in which they sit. Who gets chosen, it turns out, is very much a matter of politics — in particular, the bankruptcy politics of increasingly conservative, anti-consumer appellate benches, and the politics of the banking and credit industries.
Consider what happened to Judge Conrad, who served in Vermont and New York bankruptcy court from 1986 through last summer. Unlike most federal jurists, bankruptcy judges like Conrad are not appointed by the president and do not serve for life. Instead, under the Bankruptcy Reform Act of 1978, the nation’s 12 circuits of the U.S. Courts of Appeals appoint bankruptcy judges for each state under their jurisdictions. Vermont falls under the Second Circuit, which also covers eastern New York and Connecticut. Bankruptcy judges serve 14-year terms; they are routinely reappointed by a majority vote of the same appellate court after a brief period of “public comment.”
Conrad, in short, had every reason to expect he’d keep his job for another term. But in June of last year, Conrad arrived in his chambers to learn that the Second Circuit Court of Appeals had unexpectedly voted to deny him reappointment.
Judges of the Second Circuit refused to elaborate upon their one-line rejection announcement (bankruptcy court appoints are routinely kept secret). But two key facts seem relevant. First, Conrad had issued a string of rulings hostile to Vermont banks and other influential financial-service interests. Nationally, he is among the most visible and blunt critics of any bankruptcy reforms that would make it harder for poor and middle-class consumers to find relief.
Meanwhile the Second Circuit — at the time of his appointment 14 years ago still dominated by liberal judges serving since the 1960s and 1970s — is today in the hands of Reagan-Bush judges, and presided over by Chief Judge Ralph Winter, like Jones and Ginsburg a prominent law-and-economics conservative.
There is also the question of politics. In Vermont legal circles, conjecture about Conrad’s eviction from the bench focused immediately upon whether the Second Circuit had been influenced by any of the legion of corporate and banking officials at whom Conrad had sometimes taken aim. In the courtroom, he was known for a populist impatience with the prerogatives of corporate power; He once threatened to send federal marshals after the CEO of Sears for failing to appear in his Rutland, Vt., courtroom, and in another case compared leading Vermont bankers to Times Square shell-gamers. He has criticized federal banking regulators for permitting abusive debt collection practices, and slammed the IRS for trying to collect a bankrupt citizen’s taxes in defiance of a court order.
Whatever the reasons for Conrad’s ouster, it speaks volumes about the politics of bankruptcy. First, during the “public comment” period prior to Conrad’s firing, it turns out, Merchants Bank, Vermont’s largest financial institution, had actively solicited letters to the Second Circuit from prominent Vermont banking attorneys critical of Conrad, according to Vermont attorneys who have litigated against the bank. Chief Judge Winter named a partner in a Vermont law firm that provides that same bank’s legal counsel to chair the “merit selection” committee to recommend Conrad’s replacement. And, in December, the Second Circuit announced its choice to replace Judge Conrad: the former in-house counsel to another large bank, this one in New York. If nothing else, the fate of Vermont’s sole bankruptcy judge is a parable for how the financial-service industry can promote its interests even amid the supposed insulation of the judicial system.
Conrad is not the only federal bankruptcy judge to fall victim to this growing rift in bankruptcy philosophy. Last year at least one other respected, relatively progressive bankruptcy judge, John Pearson of Kansas, was passed over for renomination, while two other bankruptcy judges reportedly came close to losing their jobs. “This is a completely new slate of judges. It’s a different universe on bankruptcy,” one veteran bankruptcy attorney said to me recently.
This, then, is where Washington is headed in the first weeks of the Bush era. In the federal judiciary and in Congress, the drive is on to turn America’s bankruptcy courts from a consumer safety valve into taxpayer-supported collection agencies — for the same credit companies that have sold Americans a crushing mountain of personal debt. No system of commerce, as Conrad is fond of saying, can long survive without a debt-relief mechanism. But now American bankruptcy law has become just another beachhead in corporations’ long drive to deregulate greed.
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.
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.
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.
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
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.
George W. Bush and Barack Obama (Credit: Reuters/Larry Downing) 
(Credit: Reuters/Win McNamee) 
(Credit: Reuters/Jim Young) 
George W. Bush in 2006 (Credit: AP/Ron Edmonds) 
