Weekly Read: Dangerous Melodies: Classical Music in America from the Great War Through the Cold War

Music, those who make it and consume it often think, is a universal language. A beautiful melody or an infectious rhythm or a soothing wash of noise doesn’t require any kind of verbal communication to enjoy. Surely if there’s something that can exist outside of the mess that is politics, music should be yet. Sadly, the takeaway from Jonathan Rosenberg’s Dangerous Melodies: Classical Music in America from the Great War Through the Cold War is that politics, like religion, poisons everything, in spite of anyone’s best intentions otherwise.

Dangerous Melodies examines this through a particular lens – the American classical music community and how it interact with the First and Second World Wars and the early part of the Cold War. In each era, political considerations informed what was played, by whom and where.

One of the fascinating things about the WWI section of this book (along with PANDEMIC, which of course covers that time period) is how fervent people were with regards to the war and the United States’ role in it. Of course, this was the period of the Sedition Act and the Supreme Court’s deeply horrible First Amendment law, but it really brings the xenophobia home when you hear about German musicians being interned for nothing more than their nationality.

German composers proved a particularly tricky proposition, since, at the time, the American classical music scene was heavily indebted to Germany composers and musicians. Wagner, of course, featured prominently in all this, but he at least had the good sense to be dead when the conflict began. Discussions about whether to continue to stage his operas or play his music were a bit more esoteric than those surrounding, say, Richard Strauss, who was both very popular in American concert halls and still alive to cash the checks.

If the issue during the First World War was what to do with Germans in general, in the Second World War there was some attempt to distinguish between garden variety Germans and actual Nazis. This was easier said than done, however, since some great conductors were at least Nazi-adjacent, if not actual (if unenthusiastic) party members. Their rehabilitation after the war mirrored those of their predecessors in the Great War – in that the result of the uproar had little to do with actual facts and more to do with repeated assertions of bad behavior (I shook my head reading how a judge in a court case involving one conduct admitted there was no evident to prove his alleged sin, but enough people believed it that it didn’t matter).

One odd part about the Second World War is that, at least as Dangerous Melodies tells it, is that Wagner came roaring back and was basically unscathed. To the extent the Nazis glorified him and tried to make a paragon of the Reich it didn’t impact his work being played in the United States. On the other hand, there’s no discussion of Wagner’s well-documented anti-Semitism, which would seem like a pretty good reason for programming other stuff while the Holocaust is happening.

Where the intersection of classical music and the two World Wars was largely about restricting what was played (with one notable exception I’ll discuss in a moment), once the Cold War begins the tables turn. The universalists gain the upper hand, only to see that universalism weaponized in the name of American foreign policy. American orchestras made numerous state-funded tours of Europe, including behind the Iron Curtain. At best this was benevolent cultural exchange, but there was also some hope that it might show the Soviets that we weren’t all a bunch of burger eating, beer swilling, country music fans, either.

As an aside, after I read this book I listened to the Wind of Change podcast. Done by Patrick Radden Keefe (he of the amazing Say Nothing), it’s a deep dive into the conspiracy theory that the CIA wrote the Scorpions’ late Cold War hit of the same name. It doesn’t really prove that, but along the way it talks about how the American government used the same kind of state-sponsored cultural junkets in more popular music forms, too – sometimes without the knowledge of the artists.

There was one composer whose career spanned the Second World War and Cold War to devastating effect. One of the most famous and celebrated musical achievements of the Second World War was Dmitri Shostakovich’s Seventh Symphony, called Leningrad. Premiering in 1942 it was seen as embodying the resistance of the residents of that city (now, once again, St. Petersburg) to a lengthy Nazi siege. There was even a kind of bidding war over the US premier! It was a big fucking deal in a way that I don’t think we can comprehend in 2020.

But when the Cold War began, Shostakovich was drafted into the Soviet Union’s culture war against the West. There’s an episode in the book where a conference arranged in New York – assailed by Red hunters for being anti-American – winds up becoming a mouthpiece for Soviet propaganda, giving a not particularly enthusiastic speech condemning Western music that he pretty clearly didn’t write. Shostakovich got both the highs and the lows, in other words, of political influence in music.

As it happens, after I read the book, I dug out my recording of Shostakovich’s Seventh I have by the Dallas Symphony. The liner notes go into a little more detail on his most famous work and its political impact. According to his memoirs, published in 1979, it wasn’t the war anthem people made it out to be (it “had been planned” before the war started):

Naturally, fascism is repugnant to me, but not only German fascism, any form of it is repugnant. Nowadays people like to recall the prewar period as being an idyllic time, saying that everything was fine until Hitler bothered us. Hitler is a criminal, that’s clear, but so is Stalin.

* * *

Actually, I have nothing against calling the Seventh the Leningrad Symphony, but it’s not about Leningrad under siege, it’s about the Leningrad that Stalin destroyed and that Hitler merely finished off.

Where does that leave music and politics? As Shostakovich learned, they’re inexorably intertwined. Thinking that music can escape the taint of politics when nothing else can is a pipe dream. At best what music can do, better than just about any other form of art, is escape the shackles of the political sometimes and reach across barriers. It ain’t much, but it ain’t nothing.

DangerousMelodies

Weekly Read: Freedom’s Detective: The Secret Service, the Ku Klux Klan, and the Man Who Masterminded America’s First War on Terror 

This is an interesting book (more interesting than compelling, sadly, given its detached, journalistic style) to think about in these times. I actually read it a couple of months ago, but it’s crept back to relevance over the past couple of weeks. How could it not, given that it tells the story of the United States’ first concerted effort to deal with racial terrorism, which also gave rise to an unprecedented expansion of police power and tactics?

It’s the story of Hiram C. Whitley, who from 1869 to 1875 was the chief of the Secret Service. At that time, the Secret Service’s primary job was dealing with counterfeiters (it’s Presidential protection role didn’t come until ??) – which it still does, by the way (one of my great Fourth Circuit victories involved a counterfeiting case). When Whitely took over he broadened the Service’s mandate (via bureaucratic slight-of-hand and without Congressional authorization) into a broader criminal investigative unit with its sights trained the Ku Klux Klan.

Not that Whitley was particularly a crusader for human rights. Before the Civil War he did some work as a slave hunter and he essentially bought his first child. During the war he led a Union regiment in New Orleans with such brutality that his men nearly mutinied. He was a shameless self promoter who wasn’t above working outside the law when he thought it was justified. He tortured prisoners. He arrested men and executed searches without warrants. He was even involved in a Watergate-style burglary and scandal later in his career.

His most lasting contribution, however, is introducing the concept of the undercover work to American law enforcement. The idea that you had to use bad people – or at least good people pretending to be bad – to catch other bad people was scandalous. In fact, the book recounts how in one counterfeiting trial, where the case was built on undercover work, the judge actually gave the jury a cautionary instruction about how unreliable undercover officers were! If only we could get an instruction like that now.

If anything, Whitley seems like the archetype of a character we’ve become familiar with over the years from all kinds of police fiction – the cop who can’t follow the rules, but it still celebrated in the end because he gets the bad guys (a trope that’s getting some fresh looks these days). You can’t argue that Whitley’s targets were evil – not just the Klan by political machines in New York City were targets – but, as this review points out, none of those resulted in convictions, partly due to Whitley’s overreaching. One of my chief criticisms of the book is that author Charles Lane doesn’t really examine what Whitley’s legacy was or how he was an exemplar of lots of cops that came after him.

That’s why the book had come back to mind in the wake of the police killing of George Floyd and the related protests. As a society we’ve been conditioned to give cops the benefit of the doubt (there’s even a “good faith” exception the exclusionary rule for Fourth Amendment violations), mostly on the expectation that if they cross the line they’ve got a damned good reason. But lines are drawn for a reason and not everybody the cops cross the line to get are “bad guys” and, even if they are, they deserve the due process of the law, too.

I won’t say we can draw a direct line from Whitley’s abuses to Derek Chauvin’s knee on George Floyd’s neck 150 years later, but there are definitely echoes there. If Whitely really was “Freedom’s Detective,” it’s worth wondering what kind of freedom it was and whether, too often, it’s been the freedom to behave badly in the name of doing good.

FreedomDetective

Plus ca change . . .

There has always been controversial art. The reasons change – whether it’s the frank depiction of sex, or violence, or challenges to religious or political orthodoxy – but the fact that words or images piss people off is as old as time. We tend to think there’s more of it going around these days because social media tends to amplify controversies when they emerge. Just because the cacophony is louder doesn’t mean it’s any kind of major change in society.

This was driven home to me by a recent article in The Atlantic. Though the current title is “The First Novelist Accused of Cultural Appropriation,” the title that shows on the browser tab, which more accurately captures the theme of the piece, is “Could My Father Have Published ‘Nat Turner’ Today?” Bucking the usual rule of headline questions, the answer, from the story itself, appears to be yes.

Some background first. The literary controversy of the year so far has been American Dirt, a novel by Jeanine Cummins. With a major push from its publisher, and a spot on Oprah’s list, it was poised to be the breakout title of the year.

AmericanDirt

It’s about a woman and her son fleeing Mexico after a drug kingpin murders the rest of their family and, ultimately, their experiences as migrants heading to the United States. This article does a good job of highlight the resulting controversy, which ranged from questions of cultural appropriation (Cummins is neither Latina nor a migrant) to how writers of color are locked out of the publishing industry to the fact that, maybe, the book just isn’t that good at what it wants to be (this is an interesting takedown along those lines ).

The merits of the arguments about the book aren’t really important. What you need to know is that some people took issue with what was set to be a wildly popular book (there was a film deal before it was even published) and weren’t silent about it. Thanks to social media, blogs and what not their complaints reached a fairly wide audience.

Back to the Atlantic piece. The subject is The Confessions of Nat Turner and the “My Father” in the title is William Styron – the author of the article is his daughter, Alexandra. The Confessions of Nat Turner came out in 1967. Turner, of course, was the leader of a slave revolt in antebellum Virginia. The book is a fictional narrative of Turner as told to a prosecutor who will try Turner after the revolt. It won the Pulitzer Prize, so it must be pretty good.

NatTurner

Nonetheless, it led to some controversy, driven largely by the fact that Styron wasn’t black, much less a slave. How could he write a narrative from the standpoint of one? If it’s a familiar objection, it’s worth looking at how familiar the arc of reaction to the book is to what happened with American Dirt.

First, there was a swell of praise from traditional sources:

Through much of 1967, he was at ease, enjoying the swell of prepublication buzz for Nat Turner. The Book-of-the-Month Club (the Oprah’s Book Club of its time) paid my father the highest price for a novel in the company’s history. The paperback, serial, and foreign rights sold in a frenzy. Hollywood came calling. That July, when riots erupted in Newark, New Jersey, and in Detroit, newspapers asked him to help white America understand what was happening. By October, when the first reviews appeared, Nat Turner was a juggernaut. ‘Magnificent,’ The New York Times declared. “A new peak in the literature of the South,’ Time wrote. ‘It will endure as one of the great novels by an American author in this century,’ the Los Angeles Times predicted. In November, my father was awarded an honorary degree by Wilberforce University, a historically black institution in Ohio.

At this point, as Styron’s daughter points out, with one exception “no black writers were invited to critique Nat Turner in any major national publication.” Slowly, however, those overlooked voices started rising:

The first signs of black dissent appeared by the new year. Articles in, among other publications, The New Leader, The Negro Digest, and Freedomways condemned the novel and the white media that endorsed it. Around the same time, an ugly spat erupted in The Nation between my father and the Marxist scholar of African-American history, Herbert Aptheker. (They both behaved like self-important assholes.) In February, The New York Times ran the first of several pieces exposing an angrier vein: ‘Styron’s Nat Turner, the house nigger,’ declared the professor Michael Thelwell, ‘is the spiritual ancestor of the contemporary middle-class Negro … [the] type with whom whites including Mr. Styron feel most comfortable.’ The writer William Strickland groused that the novel was ‘the worst thing that’s happened to Nat Turner since he was hanged.’ My father’s critics took issue with the book’s dialect and character development, with what he put in (a master who teaches Nat to read, motive for the rebellion separate from bondage) and what he left out (a black wife, unyielding conviction). But probably his greatest crime, as my father reflected 25 years later in an essay for American Heritage, was ‘apparent from the book’s first sentence: How dare a white man write so intimately of the black experience, even presuming to become Nat Turner by speaking in the first person?’ In June 1968, the backlash reached its zenith when Beacon Press published William Styron’s Nat Turner: Ten Black Writers Respond. The book generated its own front-page notices, and kept the Nat Turner dispute alive well into the summer.

 

The backlash led to the film (to star James Earl Jones) to be shelved.
None of this is to say that the detractors of American Dirt or Nat Turner had the right of it. Maybe they do, but I’ve never read either book, so I don’t know. My point is that the experience of Nat Turner that Styron’s daughter lays out sounds almost exactly like what happened with American Dirt. Maybe the controversy didn’t burn so brightly, since it didn’t have social media to fan the flames, but it still burned pretty good.

Which is only to observe, as the song says, the more things change, the more they stay the same. Anyone who writes a book (or makes a movie or paints a picture) risks blowback, whether the blowback is warranted or not. The arts are simultaneously vague and subject to so many interpretations, yet stir such deep passions. It will be a change when new books are written that don’t provoke any negative reaction. Human nature being what it is, I don’t see that happening any time soon.

Weekly Read: “A Problem From Hell”: America and the Age of Genocide

There is no such thing as a magic word.

As a writer, much less a writer of fantasy, that’s a hard thing to remember some times. But the reason words can hold sway in fantasy is precisely because the story being told isn’t set in the real world. Here in reality, even that most magic of all words – “Abracadabra!” – only has power because the magician uttering it has convinced the audience to buy into the trick their performing (as someone in The Prestige points out, the audience wants to be fooled).

Pro se litigants in the criminal justice system often think words have some kind of magic power. If only they can find the right sentence in a Supreme Court decision then the judge will have to overturn their conviction or vacate their sentence! I’ve seen it over and over in my years practicing law. That the law is rarely that clear and that their ultimate fate is left in the hands of another human being, with all their flaws and biases, can be hard to accept.

I thought about that a lot while reading A Problem from Hell. Samantha Powers’ 2003 Pulitzer Prize winner is an exhaustive examination of how the United States did (or, more often, did not) respond to genocidal crises that arose in the 20th Century, from the Armenian Genocide during the First World War through the multiple rounds of horribles in the former Yugoslavia.

Power spends a good amount of time on Raphael Lemkin, a Polish Jew who fled at the earliest inklings of the Holocaust. He eventually came to the United States and made it his life’s work to create some international law that would address the systematic destruction (or attempted destruction) of an entire people. It was Lemkin who coined the term “genocide” and helped shape the Genocide Convention that was passed by the newly formed United Nations in 1948.

Make no mistake – this was a big deal. After the Holocaust and the Nuremburg Trials it wasn’t a given that the international community would make a fairly unified statement that genocide was a crime against humanity. And yet, the fact that there was a name for such horrors (along with a legalistic definition) didn’t magically change behaviors. Not only did further atrocities occur, but the international community, now committed to the idea of “never again,” nonetheless let it happen repeatedly.

One reason is that once the atrocity has a name, it gives the parties involved a way to argue that this particular set of killings or expulsions doesn’t rise to that level. In other words, if it’s not “genocide,” then there’s much less incentive to do something about it. That’s because, very often, there are other considerations in play than just stopping someone from doing evil. At best there’s the fact that exactly how to deal with genocide while it’s underway is always hard to figure out. In fact, Powers, for all her catalogs of what the United States didn’t do, doesn’t offer many alternatives, aside from the use of military force. That can be a hard ask in the 21st Century (not for nothing, but Powers’ book was written just as 9/11 happened and before US quagmires in Iraq and Afghanistan). At worst, the people doing all the killing are allies, even if we’re reluctant about calling them that (US policy towards the Khmer Rouge was basically driven by “yeah, but they hate the Vietnamese, too” thinking).

As a result, a lot of time is wasted on terminology. So long as perpetrators can drag out the question of whether something is genocide or not, the killings go on and their plan comes closer to fruition. Since there are no magic words, what’s the point in wasting time making sure we’re using the right one? That dance of nomenclature is one of the themes of Powers’ book.

One of the others is how bipartisan US politics was when it came to dealing with genocide. The champions of ratifying the Genocide Convention – which the US didn’t do until 1988 – came from both parties. Indeed, in classic American fashion, the final ratification wasn’t a triumph of principle, but a political gambit to deflect from a scandal.

The other thread that I found really interesting in all of these genocides is how unready the world is to believe it’s happening. Part of that is down to people just not wanting to believe something so horrible is going on. There’s an anecdote about Lemkin trying to convince a Supreme Court Justice (I forget who, specifically) that the Holocaust is happening and the Justice’s response is, basically, “I can’t believe you – I just can’t wrap my head around the barbarity of it.” Beyond that, though, there’s two related lenses through which people look at these situations that keep prompt responses from happening.

The first is that information about atrocities often comes first from people who survive them, mostly refugees fleeing to other places. Repeatedly, authorities downplay the reports of refugees until they reach such a critical mass that they can’t be ignored. While we know more and more about how unreliable eyewitness accounts can be, it can be all too easy to let prudence and caution roll over into dug in skepticism. The second is that there are repeated examples of the outside world doubting atrocities are taking place because it’s not a logical thing for the perpetrators to do. Who would risk the opprobrium of the international community by trying to kill off or otherwise destroy an entire population? But, of course, history shows that perpetrators usually get away with it, at least to a certain extent. And for true believers, what’s the big deal about after-the-fact punishment if you succeeded in your goal?

Ultimately the problem of how to deal with genocide is the problem of international law at its most acute. Put simply, international law only works as well as the nations committed to it allow it to work. There is no outside force, no world police, to enforce promises nations make to one another if those nations aren’t willing to enforce them. One of the provisions of the Genocide Convention was to allow one state to take another to an international court to stop an ongoing genocide. It took until 2019, when The Gambia took Myanmar to the International Court of Justice on behalf of the Rohingya, for that to happen and it’s still not clear whether the court’s ruling will really have any impact.

It would be great if words were magical, but the hard truth of history is that they aren’t. It takes more than a label to get people and nations to do the right thing, even if it should be as simple as stepping up and saying, “stop killing defenseless people.” That’s why something like genocide really is a “problem from hell.”

FromHell

The Mobster and the Mediocrity

The movie begins with a long tracking shot, weaving in and out of the locale in which the story is set. The soundtrack plays out tunes appropriate to the historical setting of the story. The opening sequence comes to an end with an old man in an institution in a wheelchair. He wants to talk to you. He has a confession to make.

If you’ve seen Martin Scorsese’s latest then you know this describes the opening of The Irishman, his latest epic mob opus. The old man in this case is Frank Sheeran, a real person, playing by Robert DeNiro.

Sheeran

But if you think back several years, it might sound like the beginning of another movie. In that case, the old main the wheelchair is Antonio Salieri, played by F. Murray Abraham. Rather than being in a nursing home in New Jersey, he’s in an insane asylum in Vienna.

Amadeus

The move, of course, is Amadeus, directed by the late great Milos Forman.

What could these two films have in common, made decades apart with settings separated by centuries and an ocean? More than you might thing (or maybe less than I might think).

Much has been written as to the historical accuracy of The Irishman. It’s based on a tell all book, where Sheeran admitted to his lawyer all the horrible things he’d done for the mob. As particularly relevant to the film, those include the murder of New York mobster “Crazy Joe” Gallo in 1972 and, most spectacularly, Jimmy Hoffa.

As this lengthy Slate article explains, all of that is pretty much bunk (one FBI agent quoted about the book upon which The Irishman is based called it “baloney, beyond belief”). Nobody involved in the investigations into the Gallo slaying and Hoffa disappearance think Sheeran did it, although he might have been tangentially involved with Hoffa. (The publisher of the original book responds here).

Amadeus isn’t the most rigorous piece of history either. There’s no evidence to support the takeaway most people have from the film (and the play upon which it was based), that Salieri killed Mozart. Mozart, of course, died penniless and kind of disdained, but it was due to some kind of infection (a “severe military fever,” according to records), not murder.

What’s interesting in the Slate piece of Sheeran, and what made me think of Salieri, is his ability to escape saying specifically “I did it”:

another quick digression about something you may have noticed earlier—the weird way that Sheeran phrased his confessions to both murders. Specifically, his use of the passive voice. ‘Jimmy Hoffa got shot twice at a decent range.’ ‘Crazy Joey got shot about three times outside of the restaurant.’

I wondered about that, too.

Near the end of the book, Brandt tries to get Sheeran to confirm, one final time, all that he confessed before.

‘Now,’ Brandt said to Sheeran, ‘you read the book. The things that are in there about Jimmy and what happened to him are things that you told me, isn’t that right?’

Frank Sheeran said, ‘That’s right.’

‘And you stand behind them?’

And he said, ‘I stand behind what’s written.’

Which means that even in his deathbed confession, Frank Sheeran never actually says the words, ‘I killed Jimmy Hoffa,’ or that he killed Joey Gallo, or anybody at all.

Let’s assume that Sheeran’s unwillingness to come right out and say “I did it” is less trying to shirk responsibility for crimes he personally committed. What if his confession is less about what he did personally, than what he was a part of? Likewise, what if Salieri’s is not about his personal guilt for murdering Mozart, but for the unprincipled role he played in the world that led to his death?

Sheeran, by all accounts, was in the mob. Even if you’re not a contract killer for the mob, if you’re in the mob, you’re in a world where violence and murder is part of the lifestyle. It’s sort of like being a football trainer – you’re not actually out there causing brain damage, but you’re part of a world where that kind of things happens all the time. Just being around that kind of milieu must take its toll psychologically. Is it so odd that someone adjacent to so much horrible shit feels guilty about it, even if he didn’t pull any triggers?

Salieri’s world, of course, was quite a bit different, but there’s no doubt the way the musical tornado that was Mozart changed it. Keeping in mind that Salieri was already the court composer and thus entrenched in a position of power makes his eventual “confession” all the more powerful. He had plenty of opportunities (so the film argues) to aid, or at least not actively hinder, his young counterpart as he spirals into debt and drink. Not only does he keep pushing him in ways that aren’t likely to help Mozart’s health, Salieri actively fucks with his career. None of this is the same as sticking a knife in his back or poisoning him (a once-popular theory), but neither is it precisely good behavior. Much like Sheeran, Salieri was an asshole in a milieu where assholes could get away with stuff.

There was more personal animosity to the Salieri/Mozart relationship than there was anything in The Irishman, of course. To the point that, at the end of the film, Salieri declares himself the patron saint of mediocrities. Sheeran at the end of The Irishman is more inward looking, guilty about a life not well spent. He’s not making bold proclamations (and, obviously, he’s not nuts).

In my legal work I deal all the time with people who confess to doing bad things, but mostly they’re doing that on their own. If they’re coming out of some particular environment it’s not usually because they’ve chosen that life. Sheeran, by contrast, chose to be a gangster. That he didn’t personally embody the worst of what that means didn’t mean he couldn’t struggle with guilt about the worst aspects of that life. Likewise, Salieri chose to be the shit he was, even if he didn’t go so far as to murder his rival.

But I also know that people confess to things they don’t do. Sometimes it’s because cops force them into it. Sometimes it’s because they feel guilty personally, even if they aren’t guilty legally. The human psyche, and memory, can be an odd thing.

Weekly Read: The Nonsense Factory: The Making and Breaking of the American Legal System

I’ve practiced law for more than twenty years. I’ve been a fairly regular political observer for longer than that. Which is to say that little that Bruce Gibney details in The Nonsense Factory about how messed up the American legal system has become is new to me. But having it all lumped in one steaming pile really drives how just how bad things are. We are so fucked.

Gibney really takes a holistic approach. Entire books could (and have) been written about particular problems with courts or lawyers or Congress, but Gibney brings them all into the discussion and shows how no part of what we think of as “law” – from those who make it to those who enforce it to those who judge it – is free from serious problems. I wish he had provided more concrete examples, however. Several times he’d outline a potential problem, setting up a “for example” or “as in this case,” only to move onto the next target. Granted, it’s already a long book, but some of that detail would have been nice. Still, in adopting this drone’s-eye-view he finds some threads that run from area to area that might not be obvious when viewing each in isolation.

For instance, there’s a lot of “American exceptionalism” (a phrase, according to Gibney, coined by Stalin, of all people) in our law and that’s not good. It would be one thing if the quirks of the American legal system were producing better, more just results, but for the most part they don’t. As one example, Gibney points out that judges in most other Western democracies are professionals who are trained to be judges, not lawyers (perhaps not even that) with the political skill to win elections or be picked by an executive to fill a spot on the bench for ideological reasons. As a result there’s a pretty steep learning curve for new judges. We could learn from the rest of the world’s experience, but that’s generally not how we roll.

Another example that crops up throughout the book is that although the American legal/political system isn’t designed to do particular things, that doesn’t stop it from trying to do them. The result is that we often end up with patchwork procedures held together by mental duct tape and without any great grounding in larger political or legal principles (one of Gibney’s observations is that legal education in this country provides precious little exposure to ideas about legal philosophy that could inform the system). Arguably the entire federal regulatory apparatus – something the Constitution is silent about – falls into this category. The more salient one these days, however, is the way we go to war, which is largely a Presidential decision rather than a Congressional one. Gibney wants Congress to step up and reassert its own authority, but overlooks the political calculus of the thing – actually voting for or against an overseas adventure is a big political risk, while staying out of the decision and riding the result however it goes isn’t.

For as good a job as Gibney does at diagnosing problems, he doesn’t provide very much in the way of concrete proposals for change. There’s an underlying vibe of “blow it all up and start again,” but he doesn’t actually say that needs or is going to happen. And while he does offer some specifics as he addresses some issues – close a bunch of law schools, allow non-lawyers to invest in law firms, etc. – he doesn’t really tackle bigger issues. For example, he recognizes the need to have more jury trials and more well informed juries, but doesn’t suggest changing the law to produce that result. Rather than suggest the law inform jurors of the potential sentences faced by defendants, for example, he suggests it’s sufficient that jurors be engaged and interested enough to Google the information themselves and engage in jury nullification.

In the end, Gibney’s suggestions largely boil down to exhortations to all involved to do better. Politicians should care more about institutional prerogative than political expediency. Constituents should hold them to account. Lawyers and judges should worry more about the perception of law as just than in burrowing down into their own particular specialties at the risk of losing the big picture. That’s all well and good, but if history teaches us anything it’s that people generally don’t do what’s best, they do what’s in their self interest.

How do we deal with that in the context of a Constitution that’s two centuries old and not designed for the realities of the 21st Century? I don’t know. Unfortunately, neither does Gibney, really.

NonsenseFactory

Irony Meter Cleanup On Aisle Four!

Rarely do I come across a piece of legal history I know nothing about that is so steeped in irony it almost hurts.

I recently saw, for the first time, The Ox-Bow Incident. I’d heard about it before and it was on one of the high-numbered pay cable channels we get and figured it was worth checking out. Released in 1943 (and based on the novel of the same name published in 1940), it’s the story of a mob in a small western town that forms to track down and lynch a trio of cattle rustlers who apparently murdered a local rancher. Of course they didn’t – the whole thing is a taught psychological study of mob justice and how inflamed passions can lead to horrible outcomes. In this case, the three men and hanged and only later does the mob learn they were innocent.

OxBow

The movie struck me as the kind that law profs like to write about (there’s a thriving trade in analyzing how lawyers are portrayed in media), so I went looking for any scholarly discussion of The Ox-Bow Incident. I found a couple of interesting articles, one of which had an astounding tidbit in it that I had to follow up on.*

As I said, the movie came out in 1943. The author of the article expressed amazement that such a movie got made in the middle of World War II, given that it took aim at the traditional Western narrative of rugged frontier exceptionalism. Whatever else it is, The Ox-Box Incident is an unflattering portrait of the American West. It could never have been made during the First World War when, he writes:

[when even a patriotic epic celebrating the American Revolution became a target for federal seizure and prosecution on the chance that the film might excite anti-British sentiments.

What the holy hell? I followed the footnote and saw the same of the film was The Spirit of ‘76 and off to Wikipedia I went.

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Released in 1917, just after the United States entered World War I, it was, as you’d expect, about the American Revolution. It’s the tale of Catherine, a woman of mixed heritage (French father and Native American mother) who, somehow, becomes the “morganatic wife” (I had to look it up) of King George III. Honked off at George and by the treatment of the American colonists, she returns to become a hero of the American Revolution.

Pretty stirring stuff, right? I mean, hugely melodramatic, but still, it makes you want to stand up and waive a flag, doesn’t it? So what was the problem?

The problem was that, at the time the movie was released, we had just begun to fight in the war with the British as our allies. Allies who apparently weren’t up for depictions of

[quote]multiple atrocities committed by the British side during the war, including soldiers bayoneting babies and raping unarmed women, the Wyoming massacre, and the Cherry Valley massacre.[/quote]

So when the film premiered in Chicago the head of the local film censorship board – whose name was, I shit you not, Metallus Lucullus Cicero Funkhouser – confiscated it and forced edits. It showed in Chicago in edited form, but after the cuts were restored for a showing Los Angeles the producer, Robert Goldstein, was arrested, tried, convicted, and sentenced under the Espionage Act. He served three years of a ten-year sentence before he got a commutation from Woodrow Wilson.

There you have it – a movie about the “spirit of 1776,” which presumably has more than a little to do with love of liberty and fighting tyranny – was suppressed by the nation it celebrates, to the point that the person who made it went to prison for years. They used to say that irony died after 9/11, but I’m surprised there was enough of it left after that explosion of ironic particles for that to matter.

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Fun fact – if you’re wondering why the First Amendment didn’t protect Goldstein from going to prison, consider two things. First, the Supreme Court, in general, was bad on the First Amendment around the time of the First World War. Second, at the time the Supreme Court had held that the First Amendment didn’t cover movies. They were “a business, pure and simple, originated and conducted for profit” not “part of the press of the country, or as organs of public opinion.” The case was overruled in 1952, but that was much too late for Goldstein.

Not quite so fun fact – according to the Wikipedia entry, it’s unclear what became of Goldstein after his prison term. He returned to Europe and it was thought he died in the Holocaust, but there’s some evidence he might have gotten out in 1938. Nobody’s really sure.

* Not online – Harry F. Tepker, Jr., The Ox-Bow Incident, 22 Okla. City U. L. Rev. 1209 (1997)

Whither West Virginia?

Writing alternate history is a tricky business. There’s a long way between weed-fueled gab sessions about what would have happened if the American Revolution failed or whatever and writing a story in a believable world that’s diverged from our own in a particular way. Who can really tell what that one change will make?

The conceit of Ben H. Winters’ Underground Airlines is pretty intriguing: Abraham Lincoln is assassinated just prior to his first inauguration, rather than at the end of the Civil War. That leads to the “Crittenden Compromise,” a group of amendments to the Constitution that permanently protects slavery. Over the years several states emancipate, so that by the time the book takes place in the “modern” era slavery still exists in the “hard four” – Alabama, Mississippi, Louisiana, and the Carolinas (united for reasons never explained).

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The story itself involves Victor, a runaway slave who becomes an undercover bounty hunter for the US Marshals tracking down other runaways. That means infiltrating the modern equivalent of the Underground Railroad, which is still trying to shuttle escaped slaves to Canada. It’s told entirely from his point of view, which gets deep down into his head as he deals with issues of guilt, anger, cynicism and a bunch else. It’s a pretty good character study that loses its feet a little bit when the narrative heads south (literally) and concludes with some of those twists you don’t see coming that characterize detective stories.

Naturally, most of the world we see is through Victor’s eyes and there are some interesting nuggets about what a 21st-century United States with slavery looks like (spoiler – it’s not a non-racist utopia in the rest of the country), but for the most part it looks like history mostly marched on as we know it. There were, apparently, two world wars, for example (FDR used arms manufacturing contracts as a carrot to get a couple of states to abolish slavery), which doesn’t necessarily make sense, but it’s not necessarily wrong either.

On the other hand, there are some things that maybe don’t quite make sense in a world where the United States never abolished slavery and avoided the Civil War. Would a nation isolated by the rest of the world played any role, much less the same one, in the world wars? Winters gives us a Vietnam analog with a failed attempt by Texas to secede in the 1960s, presumably in recognition of the fact that the Cold War probably doesn’t happen. In her review of the book at Tor, Alex Brown writes:

]The details are extraordinary, although some of the larger questions are left untouched. The biggest omission for me was the lack of world building in the West. Outside a couple of references to Texas, the entire western half of the US is never even mentioned, yet in the real world slavery had a huge impact on the West (says the woman who wrote her MA US History thesis on Black life in the West). Southerners traveling overland often sold some of their slaves to finance their journey. Those left behind were devastated by broken homes, and after the Civil War thousands of freed slaves took out ads looking for their families; most were never reunited. Countless slaves worked in the gold mines, cattle ranches, and citrus orchards in California in the 1840s and 1850s, while even more were cowboys on the plains. Dozens of Black-founded towns are scattered across the West, and, of course, one of the worst race riots in American history took place in Tulsa in 1921. Alt-history or no, you don’t get the modern United States—including its scientific advancements and racism—without the development of the West, and you don’t get the West without Black people.

Which is what makes me wonder about West Virginia in the world Winters created. Here’s a map (helpfully available online and in the front of the ebook preview for those of us who absorbed the audiobook) of the United States of Underground Airlines:

UndergroundMap

As you can see, West Virginia is there, just like it is in the real world. The problem is that West Virginia was literally born in the Civil War. Given the timeline for the book Lincoln was killed before  Virginia voted to secede, which prompted the crisis that eventually spawned West Virginia. Without that, there’d be no West Virginia. That’s not to say there weren’t divides between the folks living west of the mountains and the Tidewater plantation owners that dominated antebellum Virginia politics – there was a pretty good reason to spin the western part of the state off on its own. But given how difficult it is to carve a new state from an existing one, it’s unlikely it ever would have happened but for the breach that was the Civil War.

None of that has anything to do with the story Underground Airlines is telling, of course, but it is an example of how alternate history worlds sometimes raise questions in the peripheral vision that will catch the attention of a few readers, but blow by most. I’m not sure what that means in the long run, but this West Virginian is ready to “repeat to yourself that it’s just a [book], you should really just relax” and just enjoy.

Weekly Read – The Great War

Ever just fall down a rabbit hole and disappear into a topic for a while? For the past couple of months I’ve been reading nothing but books on the First World War. I hadn’t been driven to do so during the 100th anniversary observances over the past few years, so what dragged me in? Would you believe me if I said it was an interest in genre fiction?

Wasteland: The Great War and the Origins of Modern Horror is exactly what it sounds like – an exploration of how men (mostly) who fought in World War I impacted the development of horror, particularly in the nascent motion picture industry.

Wasteland

Many of the early classic horror films – from Nosferatu through Bride of Frankenstein – have connections that date back to the carnage of World War I. Wasteland does a good job of surveying the various developments in the arts as people began to process the industrial scale of death that the war brought, different in orders of magnitude from anything before. Plus, I had no idea Salvador Dali was such an asshole!

Reading Wasteland made me realize that, aside from some broad brush strokes I picked up in school, I really didn’t know much about World War I, so I decided to dive into some of the history of it. Where better to start than the beginning, right?

On June 28, 1914, a Serbian nationalist name Gavrilo Princip shot and killed Archduke Ferdinand of Austria (and his wife), heir to the throne of Austria-Hungary. Most people know that as the “start” of the war, but the truth is much more complex (and interesting). In fact it was a month before hostilities broke out, a month during which diplomatic wheels were constantly in motion. That month, the “July Crisis,” is the focus of July 1914: Countdown to War, which exhaustively covers the debates, maneuverings, and petty squabbles of parties all over Europe as the continent slouched towards war.

Coutdown

What was most amazing to me (aside from the fact that in a large number of states a hereditary autocrat was actually in charge – 100 year ago!) is how little emotional investment the various players had in Ferdinand’s death. Certain his own father didn’t seem all the broken up, as did most of the power brokers in Austria-Hungary, who saw him as a potential reformer and were happy to be rid of him. Only German Kaiser Wilhelm really seemed broken up about it. So what Ferdinand’s death just a cynical crisis used to give everybody an excuse to go to war? No, the roots of the war date back into the 19th century (who knew the integrity of an independent Belgium was so important?), but what is clear is that everybody involved had a plan if war was coming and once they committed to them, the die was pretty much cast.

Moving on from the start of the war, my next read was A World Undone: The Story of the Great War, 1914 to 1918.

WorldUndone

Rather than getting bogged down in the details of a particular battle of campaign, the book provides a swift (if lengthy) overview of the war on all fronts. Sometimes it’s a little too much overview. For example, the chapter on Gallipoli mentions how a British force could have taken advantage of something had it moved quickly, but it took four weeks – we never learn why. Unfortunately for me, it spends the first section (of six) on the July Crisis, so it was a little redundant for me. More disappointing, it didn’t deal in similar detail with what happened after the war and during the various peace talks. In between, though, it’s a depressingly fascinating catalog of the various failures of the parties to figure out something to do other than grind millions of people through useless battle after useless battle. You’d think, for example, that generals and politicians could put aside petty personal differences in the face of existential threats to their country (one of the interesting recurring themes is how the propaganda of the war made pursuing peace settlements hard – who wants to make peace with the devil?), but, alas, people are people, even in the middle of the Great War.

Since A World Undone didn’t touch much on what happened after the war I decided that I needed one more book to finish things up. Rather than dive into a book about the peace conferences and treaties (of which the Treaty of Versailles was just one) I went with The Vanquished: Why the First World War Failed to End. Provocative title, no?

Vanquished

The point of The Vanquished is that the war destabilized Europe and the Middle East to such an extent that the “peace” actually constituted a lot of revolutionary violence and civil wars. Most of it was in Eastern Europe (don’t forget that Russia got out of the war once the czar was deposed) and the places that had been carved out of the late Ottoman Empire like new-fangled countries Iraq and Jordan. Of course, Germany didn’t escape unscathed by all this, setting the stage for the rise of Hitler. Even countries on the winning side, like Italy, fell to popular revolution.

On the one hand he First World War wrought huge changes in the world. It swept away the last vestiges of most European monarchies, at least as the people who actually ran their countries. It launched the United States into place as a major international player. And, technologically, it introduced a host or horrible things to modern warfare. But, in a lot of ways, it didn’t change much. Or, more accurately, it left so much unresolved that the Second World War was almost inevitable.

I’ve got a better handle on that now, thanks to all this reading. I can’t say it restored any of my faith in humanity, though. I recommend all these books – but maybe not to read all in one go.

Why We’ll Never Win the War

Unless you’ve been living under a rock recently – or perhaps on jury duty – you’re no doubt aware that infamous drug lord Joaquin Guzman (aka El Chapo) was convicted of charges in a New York federal court that will likely leave him in prison for the rest of his life. The US Attorney had a big press conference afterward in which he hinted that maybe this time, they’ll finally make some headway in the War on (Other People’s) Drugs.

That is, of course, horseshit. I’ve long said that the War is really a war on the human desire to escape our shitty world and no amount of law enforcement is really going to change that. Writing at The New Yorker, Patrick Radden Keefe sums this up more succinctly than I’ve ever seen before:

But there is a deeper sense in which the rhetoric we use when we talk about the border and the war on drugs is misguided and always has been. The real engine for the cross-border trade in marijuana, cocaine, methamphetamine, heroin, and fentanyl is not the clever salesmanship of Mexican crooks—it’s the rampant demand of American addicts and recreational users. This is a point that seldom impinges on our national dialogue about the border with Mexico: the drug trade is dynamic. What makes it unstoppable is not weak border protections or wily Mexicans but the insatiable American appetite for drugs. Where there is money and demand, trade will flourish, borders be damned. Years ago, I interviewed a former D.E.A. official who told me about a high-tech fence that was put up along the border in Arizona. ‘They erect this fence,’ he said, ‘only to go out there a few days later and discover that these guys have a catapult, and they’re flinging hundred-pound bales of marijuana over to the other side.’

Under, over, through: as long as there is an American demand for drugs, drugs will find their way into America.

I’m in the middle of a book about another long, pointless, costly war – World War I. One recurring theme of A World Undone: The Story of the Great War, 1914-1918 is that once the Western Front settled down into a stalemate, generals kept throwing offensives at the other side in spite of all the evidence that the only result was to get lots of men killed. It’s as if no one was capable of backing away and saying, “this isn’t working, we need to try something different.” The War on (Other People’s) Drugs is the same. It’s failed and it’s been failing for decades. When are we going to realize that one more offensive, one more big prosecution, isn’t going to change anything.

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