One legacy of Richard Nixon’s troubled presidency is the restriction of the power of the executive branch, and perhaps no power was restricted more than a former president’s claim to his papers — what he has the right to keep secret vs. what the public has a right to know. After Nixon left office and tried to maintain control of his papers — along with his infamous tapes — Congress eventually set limits to executive privilege by passing the Presidential Records Act (PRA) in 1978, which legally established that the papers of an outgoing president were public property. Instead of presidents deciding what should be released, the PRA set specific release guidelines and entrusted the papers to federal archivists, assuring that historians and researchers have access to source materials without the vanity and prejudices of the former president impeding the process.
It was supposed to be the final word on the subject, but an executive order by President George W. Bush that modifies the PRA has brought forth a lawsuit and the anger of the historians and writers who use the documents for their work.
E. O. 13233 has also drawn the ire of Congress, where both Democrats and Republicans resent this re-expansion of executive power. In fact, Representative Stephen Horn (R-CA) plans to unveil a new bill that would nullify E. O. 13233 at an April 11 hearing of the House Committee on Government Reform. The bill is supported by members from both sides of the isle, including Henry Waxman (D-CA), Dan Burton (R-IN), and Barney Frank (D-MA).
On Jan. 20, 2001, former President Ronald Reagan’s papers were to be the first complete set of publicly available documents about the workings of a presidential administration released under the PRA. But shortly after taking office, the newly elected Bush administration delayed the release in order to “review” the issue. The release was delayed two additional times over a number of months and then on Nov. 1, 2001, Bush signed Executive Order 13233, which effectively takes control of the papers away from archivists and returns it to the incumbent and former presidents. It also allows for the family or designated representatives of a former president to restrict the release of his records and extends the same executive privilege to vice presidents to control their own records.
“It’s appalling and clearly destructive to writing history responsibly,” said Stanley Katz, professor of public and international affairs at the Woodrow Wilson School at Princeton and former president of the American Council of Learned Societies. “You simply can’t write an accurate picture of what happened without all the information. It’s a deliberate attempt to reverse and restore the conditions of secrecy. They don’t have the right to rethink what Congress thought.”
A deluge of writers, historians, researchers and journalists have spoken out about E.O. 13233, claiming that the consequences of the order would ultimately retard the public’s access to information and prevent the free flow of information that is the cornerstone of a functioning democracy. Even former President Bill Clinton has said that Bush’s executive order is not needed, stating that there are already enough safeguards in the PRA to protect the executive privilege of outgoing presidents.
“The PRA established once and for all that the records of the people’s government belong to the people,” said Steven Hensen, director of planning and project development at Duke University’s Rare Book, Manuscript and Special Collections Library and president of the Society of American Archivists (SAA). “Giving control of the release to the president or family designated heirs is simply outrageous. It suggests that the information about the people’s government is being controlled by others who have every interest except the people’s best interest.”
After passing E.O. 13233, the White House explained that they were merely establishing “policies and procedures,” as the title of the order, “Further Implementation of the Presidential Records Act,” attests. At a White House briefing, President Bush said, “There are some documents that are privileged and protected, and this is just to make sure those documents remain protected and privileged,” further adding that “it is a process that I think will enable historians to do their job, and at the same time protect state secrets.”
It was a sentiment that few historians agreed with.
“The Bush order is a serious threat to access to presidential records, it will clearly impede the writing of future presidential history,” said Scott Nelson. Nelson has studied the issue of presidential papers for years, having spent the first part of his law career as a partner at a Washington firm that worked for former President Richard Nixon, trying to help him protect the information on his Oval Office tapes.
Now Nelson works for the other side, as an attorney for the legal unit of Public Citizen, a public interest watchdog group that along with the American Historical Association, the National Security Archive, the Organization of American Historians and a number of prominent historians is suing the National Archives and Records Administration (NARA) to follow the PRA regardless of Bush’s order.
The suit focused on 68,000 Reagan documents that were requested by historians but were held up by the Bush administration since their January 2001 release date. All but 150 pages were finally released by the NARA on March 15, 2002, after being cleared under the new executive order, but the suit is still going forward to overturn Bush’s order from affecting future presidential records.
Congress passed the PRA because until the 1970s a president’s papers were considered his own property. This led to abuses of stewardship and the destruction of historical records. The most notorious case involved Warren G. Harding, whose wife destroyed up to half of her late husband’s presidential papers — especially those relating to the Teapot Dome scandal, which led to the first imprisonment of a former Cabinet minister — claiming that she was protecting her husband’s memory.
But this was by no means a solitary episode — an amicus brief filed by the Association of American Publishers and other groups on behalf of the plaintiffs in the E.O. 13233 lawsuit states that many of the papers from Presidents Van Buren, Harrison, Grant, Harding, Coolidge and others were also destroyed. Theodore Roosevelt was the first president to donate his presidential papers to the public. With the establishment of the Presidential Libraries Act in 1955, presidents from Hoover to George Bush Sr. bequeathed their papers to their individual libraries, which are run by professional archivists, though such donations were still considered to be done on a voluntary basis.
Under the PRA, the papers of an outgoing administration are transferred to the NARA, a nonpartisan federal agency whose archivists act as custodians for the papers. Presidential papers, which are not subject to Freedom of Information Act (FOIA) requests during a president’s term, are additionally withheld for another five years after the president leaves office while the archivists prepare their release. At the end of that five-year period, the papers are then public information, unless the former president declares certain information to belong to specific categories, such as national security information and confidential communications for advice between the president and his advisors. In that case, the papers are delayed for release for 12 years, after which time they are also public information.
The Bush order, though, added a number of new stipulations and procedures. Archivists must now notify both former and incumbent presidents when they receive any requests to examine the records, and both are allowed to scrutinize the order and decide whether to claim executive privilege. Also, the requester must show a “designated, specific need” in order to overcome presidential privilege. Not only that, the archivist has to abide by the decision, whether or not it has any legal or constitutional merit. In addition, upon the death or disability of a former president, a designated family member or representative is allowed to make such decisions. The order also extends executive privilege to the papers of vice presidents, which was never in the PRA.
Critics denounce the Bush move as another example of the administration’s obsession with secrecy, following other attempts to curtail records such as an Oct. 12, 2001, memorandum by Attorney General John Ashcroft urging government agencies to legally resist FOIA requests whenever possible. Not only that, but President Bush is already embroiled in another case involving his own papers from when he was governor of Texas; after his term he deposited those papers in his father’s presidential library, where under federal law they will be harder to access than if they were deposited in a state-run institution. The Texas attorney general is currently working on an opinion of the matter.
The Bush order was also attacked as an act of political expediency, to protect the former writing of current administration officials who served in the Reagan administration, including Bush’s own father, Reagan’s former vice president. The papers contain memos and writings by current administration officials who served under Reagan, such as Secretary of State Colin Powell, chief of staff Andrew Card, Secretary of Defense Donald Rumsfeld and a host of others.
“They’re fearful of what they don’t know and of things that might come out in the future,” said Anna Nelson, a history professor at American University in Washington and a longtime spokesperson on behalf of historians’ access to federal records who has done research in five presidential libraries. “In the short run, they’re thinking about Bush Sr. and people in the current Bush administration, but they’re not thinking ahead to the long-term problems.”
One of those problems is that history itself would be incomplete. For example, the kinds of presidential source material used to write biographies like “John Adams” by David McCullough and “Theodore Rex” by Edmund Morris might not be available to biographers of more recent presidents if E.O. 13233 were to remain in effect.
“History can’t be written responsibly without the entire record,” said Stanley Kutler, a professor of history at the University of Wisconsin and one of the two historians whose names are on the lawsuit. In the 1970s he led litigation with Public Citizen to get access to Nixon’s Oval Office tapes, the transcripts of which he later published in “Abuse of Power: The New Nixon Tapes.” “To be a fair or good historian, you need the entire context.”
The effect of incomplete history, said Anna Nelson, has a widespread influence. “What researchers and historians do trickles down to the media, to movies, to how news is viewed and analyzed,” she said. “We lose our sense of an entire decade. We need more of a sense of history, not less. Many of the policy matters made back then we’re still living with now. A healthy democracy requires open government.” On a more practical note, she pointed out that people training to make policy and other governmental decisions in the future get many of their ideas from history sources, and therefore an incomplete record hampers how effective they would be in the future.
Although Bush initially claimed that E.O. 13233 was issued to protect national security, in fact the 68,000 papers withheld do not involve national security but entail another of the PRA exemptions: the correspondence between a president and his advisors. The Bush administration claimed that by forcing the early release of such information, it would inhibit free speech between a president and his advisors.
Anna Nelson pointed out that presidential advisors have already known for a long time that their correspondence with a president will be public and that it has not impeded the flow of ideas. “Not only that,” she said, “people making policy, they’re too busy and don’t have time to consider what they’ve been writing down. That it would have a chilling effect on correspondence is clearly fallacious.”
She also noted that the argument about giving the former presidents more power to protect their constitutional rights and assure executive privilege and that sensitive secrets don’t get out is weak. “The National Archives always protected records and is very conscientious about third-party issues and embarrassments,” she said. “They held onto the Nixon tapes all those years and never had a leak.”
Bruce Craig, director of the National Coordinating Committee for the Promotion of History, doesn’t suspect that there is any “smoking gun” among the Reagan papers. But he fears that the order might have a detrimental effect on historians writing about future presidents. “Oftentimes, the confidential advice given at the highest level is the stuff of history,” he said. “What would we know about the Bay of Pigs without that information? What type of history could you write about Bush’s reaction to 9/11 without access to those papers?”
Whether the issue is decided by the lawsuit or reined in by Congress’ bill, barring a summary judgment on the lawsuit, it will take months until the success or failure of these measures is seen. Until then, millions of presidential papers remain under the effect of E.O. 13233. “I just don’t get it,” said Hensen. “What [presidential administrations] do is at the behest of the public. This executive order reflects a more imperialistic or corporate mentality, rather than public service.”
“The Nixon experience brought into focus this ordeal with presidential records,” Kutler said. “The Bush order is like handing Richard Nixon a victory after 30 years, as if to say, ‘You were right.’ But you need access to all the information to write history well. Ultimately our history is going to be the better for it.’”
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
George W. Bush and Barack Obama (Credit: Reuters/Larry Downing) 
(Credit: Reuters/Win McNamee) 
(Credit: Reuters/Jim Young) 
