Now that conventional wisdom has focused attention on “moral values” as our paramount national concern, it might be worth spending a few minutes considering how President Bush’s nominee for attorney general, Alberto Gonzales, dealt with one of those values — human life — on 57 occasions.
Gonzales’ values, to say nothing of his legal judgment, have come in for scrutiny of late due in part to his supposedly aggressive questioning of homeland security nominee Bernard Kerik (which failed to uncover extramarital affairs, unpaid taxes on an illegally employed nanny, a warrant for his arrest related to unpaid condo fees, and alleged links to organized crime), as well as to two highly controversial memoranda Gonzales authorized for Bush that laid out the case for torturing prisoners taken in the “war against terrorism.” Whether Gonzales’ central role in designing policies that may have led to the abuses at Abu Ghraib and other military facilities should disqualify him for the job of attorney general will be a major focus of his Senate confirmation hearing set to begin Thursday morning.
In addition to questioning Gonzales about when he thinks it’s appropriate to torture people, Judiciary Committee members might want to ask Gonzales when he thinks it’s appropriate to kill them. A sizable body of evidence on that subject has been extracted from the Texas State Archives, the repository of the gubernatorial records of George W. Bush, and these documents suggest that Gonzales didn’t give the subject the kind of thought one might expect of a man burdened with a mantle of moral values. As governor of Texas, Bush acted as the court of last resort for 153 men and women, the last public official standing between them and the executioner. On 152 occasions Bush opted for death, and for 57 of those decisions he relied almost exclusively on briefings prepared by Gonzales — briefings that appear to have been designed, above all, to facilitate the governor’s predisposition for execution.
Now, some people will no doubt take umbrage at the suggestion that the final appeal of a condemned murderer raises serious questions about the value of human life. When one considers, however, that 117 innocent people have been found on the nation’s death rows, including eight in Texas (the most recent on Oct. 6, 2004), the moral imperative of executive clemency comes into sharper focus. An examination of Bush’s public statements suggests that he understood clemency to be a profound moral obligation, at least in the abstract. Bush called clemency “an awesome responsibility” and said he personally acted “as a fail-safe — one last review to make sure there is no doubt the individual is guilty and that he or she has had the due process guaranteed by our Constitution and laws.” Bush also said on numerous occasions that he had “no doubt” that every person executed in Texas under his watch satisfied those criteria.
But how did the man who was to become the nation’s moralizer in chief erase all doubt of the inmates’ guilt? Why was Bush so certain that he hadn’t executed an innocent and that all of those executed had received due process from the courts? And how does Gonzales figure into this sense of self-certainty? At the time, few people questioned Bush’s claims, although they seemed transparently suspect. Anyone who has grappled with the intricacies of an even moderately complex death penalty case knows that it can be a Herculean undertaking, requiring an enormous investment of time and mental effort that frequently leads into a cul-de-sac of uncertainties. Add to that the sheer volume of cases Bush had to consider — as many as two executions a week, as many as eight in a single month — and the holy grail of certitude would seem even more of a reach.
We now know that Bush’s repeated assurances of certainty and thoroughness were patently untrue. And we have more than a modicum of certainty about this because we have access to Bush’s daily appointment logs — which show that he rarely spent more than 30 minutes on an execution briefing — and we have Gonzales’ own files, which show that he did not send Bush a clemency petition laying out a defendant’s best arguments for a pardon on even one occasion. Most important, we have Gonzales’ actual execution case summaries on which Bush relied in making his decisions to proceed with more than 99 percent of the death warrants that landed on his desk.
Gonzales’ memos, running anywhere from three to seven pages, are, in many cases, so slapdash, incomplete and inaccurate that no one relying on them could possibly make a fair, balanced and intelligent decision as to whether clemency should have been a consideration. Anyone relying solely on Gonzales’ briefings would have probably done exactly what Bush did — put a little black check next to the word “Deny” at the end of the summary and send the offender to his death. True, Gonzales and his staff of lawyers were handling an unprecedented number of executions. But Gonzales’ omissions appear less the oversights of overworked attorneys than the deliberate design of a lawyer who knew what his client wanted — an open-and-shut argument for execution — and was all too happy to deliver.
How otherwise might one explain Gonzales’ summary of the Terry Washington murder case? Washington was executed on May 6, 1997, for the murder of Beatrice Huling, a 29-year-old mother of two. Huling was stabbed 85 times and nearly eviscerated. For many people those facts alone would be sufficient to fry Washington. But Bush seemed to set forth a higher moral standard of review. In his autobiography, “A Charge to Keep,” he wrote that he wanted to be informed if “there are new facts or evidence of which a jury was unaware, or evidence that the trial was somehow unfair.”
Yet in Washington’s case there was a sizable body of evidence the jury never heard, which should have made it glaringly obvious that Washington’s trial met even the most conservative definition of unfairness. Jurors weren’t told that Washington was mentally retarded and brain damaged, that as a child he and his 10 siblings were repeatedly whipped with water hoses, extension cords, wire hangers and automobile fan belts. Gonzales apparently concluded that this evidence was insignificant, because he didn’t bother to mention it in the summary he prepared for Bush. Instead he wrongly suggested that there was “conflicting information” about Washington’s mental state. Gonzales also didn’t bother to mention Washington’s forceful claim of ineffective counsel, arising from his attorney’s failure first to present jurors with the mitigating evidence of Washington’s childhood abuse and mental retardation and, second, to call a mental health expert to testify to these facts.
Indeed, “ineffective” or “incompetent” counsel would be an accurate description of Gonzales, whose execution summaries repeatedly failed to mention the most salient claims of defendants. Consider, for example, these four cases not previously reported:
In his summary of the Karl Hammond case, Gonzales notes that the defendant had petitioned for a reprieve, but doesn’t bother to tell Bush any of the arguments for reprieve. In a draft of his summary Gonzales noted that Hammond denied his guilt, but this claim was dropped from the summary submitted to Bush. Instead, Gonzales quotes the prosecutor, stating “that there is absolutely no doubt in his mind that Karl Hammond committed the offenses…”
Gonzales notes that a special master was appointed to investigate the case of Anthony Ray Westley, but never mentions that this official concluded that Westley was not the shooter and that “a breakdown of the adversarial process” occurred in the case due to the incompetent representation by Westley’s attorney. Nor does Gonzales mention that Westley’s co-defendant did not get a death sentence and that the state used conflicting arguments in prosecuting the two defendants, arguing at each man’s trial that only he could have been the gunman.
The state of Texas used the same tactic at the trial of Willie Ray Williams, insisting he was the shooter in the death of Claude Shaffer, then turned around and argued at the trial of Williams’ co-defendant, Joseph Nichols, that “Willie could not have shot” the victim and that only Nichols could have been the killer. Gonzales makes no mention of this.
The execution summary for Davis Losada makes no mention of Losada’s questionable legal representation or of the fact that Losada’s attorney had an obvious conflict of interest, having earlier represented the chief witness against Losada. Gonzales does report that as of the morning of the scheduled execution, Losada had no legal counsel. If Gonzales saw anything inappropriate about that he does not mention it.
Three other cases demonstrate equally egregious reporting by Gonzales:
In the Billy Conn Gardner case, Gonzales doesn’t mention that Gardner did not match the description of the suspect given by the victim and other eyewitnesses, or that Gardner had been fingered by one Melvin Sanders, who received immunity from prosecution in connection with the murder and other pending felonies. Nor does he mention that Sanders’ wife, Paula, had received immunity and that Paula, who was sitting next to the victim at the time of the murder, did not identify Gardner, whom she knew, as the assailant. Gonzales fails to report that Paula was almost certainly complicit in the robbery that precipitated the murder and that she was never interviewed by Gardner’s attorney, who met with Gardner for only 15 minutes before jury selection in his murder trial began.
In the case of Carl Johnson, Gonzales doesn’t mention that the defendant’s attorney slept through major portions of his trial.
When the case of Bruce Edwin Callins went before the U.S. Supreme Court in 1994, Justice Harry Blackmun, a longtime supporter of the death penalty, wrote a historic dissent in which he concluded that the death penalty was unconstitutional. “From this day forward, I no longer shall tinker with the machinery of death,” Blackmun wrote. “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.” One need not agree with Blackmun’s conclusion to appreciate that this was a monumental ruling and that Blackmun was directing his comments to those, like Bush, who held decisions over life and death at their fingertips. Yet Gonzales doesn’t even mention Blackmun’s opinion in the summary of the Callins case he prepared for Bush.
Without question, all these men were sentenced to die for committing horrible crimes. And it is easy to imagine how Bush or Gonzales or anyone who takes the time to review the endlessly horrifying details of dozens of homicide files might become cynical about the idea of granting even a single pardon. The rogues’ gallery of miscreants and the roster of innocent victims tend to drain sympathy. Among those approved for lethal injection by Bush were Samuel Hawkins, who confessed to 25 rapes and was guilty of two murders; Ricky Lee Green, who killed four people and castrated one of his victims after having sex with him; cop-killer Patrick Fitzgerald Rogers; and Kenneth Granviel, who murdered 2-year-old Natasha McClenton and sexually assaulted and murdered four of her relatives in their Fort Worth apartment. Then there was James Carl Lee Davis, who murdered his 15-year-old neighbor after raping her and beating and sodomizing her with a pipe, and John Cockrum, who had shot and killed his father when he was 17 but was executed for the murder and robbery of 69-year-old Eva May.
Yet — precisely because our gut tells us that such criminals are dispensable — those charged with clemency have a special obligation to explore the possibility that maybe, just maybe, one of these offenders might have had serious mental problems, a childhood replete with abuse, or an attorney as cavalier about his commitment to justice as Gonzales himself. The fundamental question raised by the extraordinary record of clemency denial under Bush is whether those with the power of clemency have any moral obligation whatsoever to at least contemplate the arguments made by death row inmates in a final appeal for life. An examination of the Gonzales memos strongly suggests that his answer would be no. It is, in fact, difficult to define precisely what factors, other than the kind of intense media and political pressure brought to bear in the case of Karla Faye Tucker, might have sparked his curiosity and led to a more serious discussion of any one case.
Gonzales’ execution summaries demonstrate that while Bush was paying lip service to his moral obligations in the clemency process, both he and Gonzales had turned that process into little more than a charade. In practice, none of the traditional grounds for executive clemency — such as mental incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination by the state or by jurors, incompetent counsel, or disproportionate sentences for co-defendants — was seriously considered by either Gonzales or Bush.
Gonzales’ memos illustrate time and again how he and Bush thoroughly neutered the purpose of clemency, designed as an extrajudicial process, by assuming that if the courts had approved an execution, there was no role for the governor. Gonzales’ summaries routinely end with a conclusion that demonstrates how the “fail-safe” final review Bush had promised constituted no review whatsoever other than to certify that the case had passed through all the courts. But that requirement was, in fact, satisfied by definition: A case would not come up for executive clemency unless all other appeals had been denied.
In the final analysis, the only ground for clemency under the Gonzales-Bush “fail-safe” was evidence of innocence. And even then, Gonzales seemed asleep at the wheel. Consider the matter of David Wayne Stoker, who was executed for murdering convenience store clerk David Manrique in a 1986 robbery that netted $96. Gonzales, a Harvard-educated lawyer, summarized the substantive issues in this vicious, stereotypically “pointless” crime in a grand total of 18 lines. Had Gonzales been willing to expend just a little more ink on this matter of life and death, here are some of the things he might have mentioned to the governor: For starters, he might have pointed out that a federal appellate judge concluded that the state’s star witness against Stoker was just as likely the murderer. He might have noted that a key state witness recanted following Stoker’s conviction, explaining that he’d been pressured by the prosecution to perjure himself. He might have mentioned that the state’s star witness received a financial reward for fingering Stoker and had felony drug and weapons charges dropped the day he testified against Stoker — raising the obvious possibility that he had had a motive for accusing Stoker.
But that’s not all. Gonzales apparently didn’t think his boss needed to know that this star witness and two police witnesses lied under oath at trial, that the state’s expert medical witness pleaded guilty to seven felonies involving falsified evidence in capital murder trials, and that the state’s expert psychiatric witness, whose testimony provided the jury with a legal basis for handing down a death sentence, never bothered to interview Stoker. By the time Gonzales was supposedly researching the case for Bush, this expert had been expelled from the American Psychiatric Association for repeatedly providing unethical testimony in murder cases. Needless to say, Gonzales didn’t think it was worth pointing out that the jury that had sentenced Stoker to death was ignorant of all those facts.
Would Bush have opted to execute Stoker even if Gonzales had given him all of that mitigating evidence? Probably, given all we know about his record on clemency. Nonetheless, the case raises important questions about a lawyer’s moral obligation to keep his client adequately informed, as well as that lawyer’s basic sense of fairness and decency. Senators might want to ask themselves if they would have been willing to execute Stoker based on Gonzales’ 18-line summary. Alternatively, would they have executed him knowing the facts Gonzales failed to include? Finally, they might ponder whether Bush, relying on Gonzales, executed an innocent man.
A first-year law student preparing a brief for his client such as the one Gonzales wrote up on the Stoker case would probably be advised to consider another line of work. But not Gonzales. Bush, who would later make “character” the mantra of his first presidential campaign, was apparently more than happy with the Reader’s Digest Condensed work product offered up by his lawyer. In his autobiography, Bush wrote that for every death case, the office of legal counsel would “brief me thoroughly, review the arguments made by the prosecution and defense, raise any doubts or problems or questions.” Bush promoted Gonzales to the office of the Texas secretary of state, to the Texas Supreme Court and finally to White House counsel’s position.
Legal ethicists may argue that the client calls the shots and that the president should have the attorney he is comfortable with. The question the Senate must now confront is whether Gonzales is the right attorney for the rest of the country.
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) 
