[Tom Engelhardt, who runs the Nation Institute's Tomdispatch.com, is the co-founder of the American Empire Project. His book, The End of Victory Culture (University of Massachusetts Press), has been thoroughly updated in a newly issued edition that deals with victory culture's crash-and-burn sequel in Iraq.]

Think of the top officials of the Bush administration as magicians when it comes to Iraq. Their top hats and tails may be worn and their act fraying, but it doesn't seem to matter. Their latest"abracadabra," the President's"surge strategy" of 2007, has still worked like a charm. They waved their magic wands, paid off and armed a bunch of former Sunni insurgents and al-Qaeda terrorists (about 80,000" concerned citizens," as the President likes to call them), and magically lowered"violence" in Iraq. Even more miraculously, they made a country that they had already turned into a cesspool and a slagheap -- its capital now has a"lake" of sewage so large that it can be viewed"as a big black spot on Google Earth" -- almost entirely disappear from view in the U.S.

Of course, what they needed to be effective was that classic adjunct to any magician's act, the perfect assistant. This has been a role long held, and still played with mysterious willingness, by the mainstream media. There are certainly many reporters in Iraq doing their jobs as best they can in difficult circumstances. When it comes to those who make the media decisions at home, however, they have practically clamored for the Bush administration to put them in a coffin-like box and saw it in half. Thanks to their news choices, Iraq has for months been whisked deep inside most papers and into the softest sections of network and cable news programs. Only one Iraq subject has gotten significant front-page attention: How much"success" has the President's surge strategy had?

Before confirmatory polls even arrived, the media had waved its own magic wand and declared that Americans had lost interest in Iraq. Certainly the media people had. The economy -- with its subprime Hadithas and its market Abu Ghraibs -- moved to center stage, yet links between the Bush administration's two trillion dollar war and a swooning economy were seldom considered. It mattered little that a recent Associated Press/Ipsos poll revealed a majority of Americans to be convinced that the most reasonable"stimulus" for the U.S. economy would be withdrawal from Iraq. A total of 68% of those polled believed such a move would help the economy.

Anyone tuning in to the nightly network news can now regularly go through a typical half-hour focused on Obamania, the faltering of the Clinton"machine," the Huckabee/McCain face-off on Republican Main Street, the latest nose-diving market, and the latest campus shooting without running across Iraq at all. Cable TV, radio news, newspapers -- it makes little difference.

The News Coverage Index of the Project for Excellence in Journalism illustrates that point clearly. For the week of February 4-10, the category of"Iraq Homefront" barely squeaked into tenth place on its chart of the top-ten most heavily covered stories with 1% of the"newshole." First place went to"2008 Campaign" at 55%."Events in Iraq" -- that is, actual coverage of and from Iraq -- didn't make it onto the list. (The week before,"Events in Iraq" managed to reach #6 with 2% of the newshole.)

True, you can go to Juan Cole's Informed Comment website, perhaps the best daily round-up of Iraqi mayhem and disaster on the Web, and you'll feel as if, like Alice, you had fallen down a rabbit hole into another universe. ("Two bombings shook Iraq Sunday morning. In the Misbah commercial center in the upscale Shiite Karrada district, a female suicide bomber detonated a belt bomb, killing 3 persons and wounding 10… About 100 members of the Awakening Council of Hilla Province have gone on strike to protest the killing of three of them by the U.S. military at Jurf al-Sakhr last Sunday, in what the Pentagon says was an accident… Al-Hayat reports in Arabic that officials in Baqubah are warning that as families are returning to the city, they could be forced right back out again, owing to sectarian tensions...") But how many Americans read Juan Cole every day... or any day?

On that media homefront, the Bush administration has been Houdini-esque. Left repeatedly locked in chains inside a booth full of water, George W. Bush continues to emerge to declare that things are going swimmingly in Iraq:

"…80,000 local citizens stepped up and said, we want to help patrol our own neighborhoods; we're sick and tired of violence and extremists. I'm not surprised that that happens. I believe Iraqi moms want the same thing that American moms want, and that is for their children to grow up in peace… The surge is working. I know some don't want to admit that, and I understand. But the terrorists understand the surge is working. Al Qaeda knows the surge is working…"

Having pulled the"surge" rabbit out of his hat -- even stealing the very word out of the middle of"insurgent" -- Bush then topped that trick by making Iraq go away for weeks, if not months, on end. Talk about success!

Forever and a Day

If you're wondering why in the world this matters -- after all, won't the Democrats get us out of Iraq in 2009? -- then you haven't come to grips with Bush's greatest magic trick of all. Though a lame-duck president sporting dismally low job-approval ratings, he continues to embed the U.S. in Iraq, while framing the issue of what to do there in such a way that any thought of a quick withdrawal has... Poof!... fled the scene.

Admittedly, somewhere between 57% and 64% of Americans, according to Rasmussen Reports, want all U.S. troops out of Iraq within a year. We're not talking here about just the" combat troops" which both Hillary Clinton and Barack Obama seem prepared to withdraw at a relatively stately pace. (Obama has suggested a 16-month schedule for removing them; Clinton has only indicated that she would start withdrawing some of them within 60 days of coming into office.) Combat troops, however, represent perhaps half of all U.S. military personnel in Iraq -- and Republicans are already attacking even their withdrawal as cut-and-run-ism, if not outright treason.

Americans may not have noticed, but the policy that a large majority of them want is no longer part of polite discussion in Washington or on the campaign trail. The spectrum of opinion in the capital, among presidential candidates, and in the mainstream media ranges from Senator McCain's claim that even setting a date for withdrawal would be a sure recipe for "genocide" -- and that's the responsible right -- to those who want to depart, but not completely and not very quickly either. The party of"withdrawal" would still leave American troops behind for various activities. These would include the"training" of the Iraqi military. (No one ever asks why one side in Iraq needs endless years of"training" and"advice," while the other sides simply fight on fiercely.) In addition, troops might be left to guard our monstrous new embassy in Baghdad, or as an al-Qaeda-oriented strike force, or even to protect American security contractors like Blackwater.

Hard as it is for the audience to separate the mechanics of a magician's trickery from the illusion he creates, it's worth a try. Before the surge began in February 2007, as five combat brigades were dispatched mainly to Baghdad, there were perhaps 130,000 American forces in Iraq (as well as a large contingent of private security contractors -- hired guns -- running into the tens of thousands). The surge raised that military figure to more than 160,000.

The Bush administration's latest plans are to send home the five combat brigades, but not all the support troops that arrived with them, by the end of July. This will still leave troop levels above those of February 2007. At that point, as Secretary of Defense Robert Gates suggested only last week, the administration is likely to "pause" for at least one to three months to assess the situation. In other words, when Americans enter their polling places this November 4th, there will probably still be more troops in Iraq than at the beginning of 2007.

TIME Magazine typically put the matter this way:

"The pause, which could last up to several months, would be designed to ensure that the smaller U.S. footprint in Iraq doesn't embolden insurgents to reignite the civil war that ripped the country apart in 2006 and the first half of 2007."

That smaller footprint, however, will be marginally larger than the one that preceded the surge. So consider this a year-long draw-up, not a drawdown. In the meantime, though the mainstream media has hardly noticed, the Pentagon has been digging in. In the last year, it has continued to upgrade its massive bases in Iraq to the tune of billions of dollars. It has also brought in extra air power for an"air surge" that has barely been reported on here -- and nobody in Washington or on the campaign trail, in the Oval Office or the Democratic Party, has been talking about drawing down that air surge, even though there has recently been a spate of incidents in which Iraqi civilians, and some of those" concerned citizens" backing American forces have died from U.S. air strikes.

The Bush administration is also quietly negotiating a Status of Forces Agreement with the weak Iraqi government inside Baghdad's Green Zone. It will legally entrench American forces on those mega-bases for years to come. In a recent op-ed in the Washington Post, Secretary of Defense Gates and Secretary of State Condoleezza Rice denied that the administration was trying to bind a future president to Bush's Iraq policies. ("In short, nothing to be negotiated in the coming months will tie the hands of the next commander in chief, whomever he or she may be.") This, however, is obviously not the case. The agreement is also being carefully constructed to skirt the status of a"treaty," so that it will not have to be submitted to the Senate for ratification. All of this, in the grand tradition of Vice President Cheney, might be thought of as the Bush administration's embunkerment policy in Iraq.

In the surge year, when administration officials and top commanders speculated about withdrawal, they increasingly emphasized the Herculean task involved and the need to take the necessary time to carefully remove every last piece of military equipment in-country."You're talking about not just U.S. soldiers, but millions of tons of contractor equipment that belongs to the United States government, and a variety of other things," Secretary of Defense Gates told Pentagon reporters last July."This is a massive logistical undertaking whenever it takes place."

As TIME Magazine's Michael Duffy described it, included would be"a good portion of the entire U.S. inventory of tanks, helicopters, armored personnel carriers, trucks and humvees… They are spread across 15 bases, 38 supply depots, 18 fuel-supply centers and 10 ammo dumps," not to speak of"dining halls, office buildings, vending machines, furniture, mobile latrines, computers, paper clips and acres of living quarters." Some top military commanders claimed that it would take up to 20 months just to get part of the American force out. More recently, it has been suggested that it would take"as many as 75 days" for each combat brigade and all its equipment to depart -- and this would, of course, be done one brigade at a time.

When it comes to withdrawal, the highest priority now seems to be frugality in saving all U.S. property. In other words, as the Bush administration continues to dig in, each of its acts makes leaving ever more complicated.

If the subject at hand weren't so grim, this would be hilarious. An analogy might lie in an old joke: A boy murders his father and mother and then, arrested and brought to court, throws himself on the mercy of the judge as an orphan.

The administration that rashly invaded Iraq, used it as a laboratory for any cockamamie scheme that came to mind, and threw money away profligately in one of the more flagrantly corrupt enterprises in recent history, now wants us to believe that future planning for draw-downs or withdrawals must be based on the need to preserve whatever we brought -- and are still bringing -- into the country.

In the land the Bush administration"liberated," violence remains at a staggering daily level; electricity is a luxury; the national medical-care system has been largely destroyed; perhaps 4.5 million Iraqis have either fled the country or become internally displaced persons; approximately 70% lack access to clean water; and 4 million, according to the UN, don't know where their next meal is coming from. Yet, even with such a record before us, the logic of the moment in Washington and in the media remains clear: The last thing we should be doing is getting out of the country with any alacrity. After all, if we do, a disaster, a bloodbath, even genocide might happen.

Put another way, the most self-interested party in the"withdrawal" debate continues to set the terms of that debate. Imagine if, in football, the quarterback calling plays for his team also had the power to assess penalties, declare first downs, and decide whether a ball was caught in or out of bounds.

In the meantime, since the antiwar movement remains relatively moribund, there are no"out now" or"bring the troops home" chants ringing in the streets of our country. You have to look to the fringes for perfectly reasonable suggestions on getting out. Take Professor Immanuel Wallerstein, who wrote an essay,"Walking Away: The Least Bad Option," which you won't find in your local paper. To him,"walking away" would mean"a statement by the US government that it will withdraw all troops without exception and shut down all bases in Iraq within say six months of the date of announcement." He adds:"U.S. withdrawal would mark the first step on the long and difficult path to healing the United States of the sicknesses brought on by its imperial addiction, the first step in a painful effort to restore the good name of the United States in the world community."

Right now, however, any form of"walking away," itself a polite euphemism for retreat from a desperate stalemate or even a lost war, is off that"table" on which this administration has so often placed"all options." As a result, if either Clinton or Obama were to win the next election, enter office in January 2009, and follow his or her present plan -- a relatively long period of drawdown not leading to full withdrawal -- he or she would, within months, simply inherit the President's war. At that point, the present war supporters would turn on the new president with a ferocity the Democrats are incapable of mustering against the present one, attacking her or him as a cut-and-runner of the first order, even possibly even a traitor.

We Don't Do Permanent

Sen. John McCain made a small stir recently by saying that he doesn't care if American troops stay in Iraq"100 years" as long as"Americans are not being injured, harmed or killed." In fact, as Mother Jones' David Corn reported, the senator later elaborated on that statement, adding"a thousand years,""a million years." The President and various top administration officials have offered similar, if more restrained formulas, speaking vaguely of"years" in Iraq, or a"decade" or more in that country, or simply of the"Korea model," a reference to our garrisoning of the southern part of the Korean peninsula for well over half a century with no end yet in sight.

Of course, this administration has already built its state-of-the-art mega-bases in Iraq as well as a mega-embassy, the largest on the planet, to suit such dreams. Yet in April 2003, the month Baghdad fell to American forces, Secretary of Defense Donald Rumsfeld first denied that the U.S. was seeking"permanent" bases in Iraq. Ever since then, administration officials have consistently denied that those increasingly permanent-looking mega-bases were"permanent."

Just the other day, the President again toldFox News,"We won't have permanent bases… [but] I do believe it is in our interests and the interests of the Iraqi people that we do enter into an agreement on how we are going to conduct ourselves over the next years." Dana Perino, White House press spokesperson, offered further clarification by indicating that we do not actually have permanent bases on Planet Earth, even in Korea more than half a century later."I'm not aware," she said,"of any place in the world -- where we have a base -- that they are asking us to leave. And if they did, we would probably leave." (She made a singular exception for Guantanamo.)

Consider this a philosophic position. Evidently, we don't do permanent because all things are evanescent; everything must end. Where, after all, are the Seven Wonders of the World? Mostly gone, of course.

Such a position might be applied to far more than the permanency of bases. Let me offer two linked predictions based on impermanency:

As a start, the surge-followed-by-pause solution the Bush administration whipped up is a highly unstable, distinctly impermanent strategy. It was never meant to do much more than give Iraq enough of the look of quiescence that the President's war could be declared a modest"success" and passed on to the next president. It relies on a tenuous balancing of unstable, largely hostile forces in Iraq -- of Sunni former insurgents and the Shiite followers of cleric Muqtada al-Sadr, among others. It is unlikely to last even until the November presidential election.

And let's remember that those on the other side(s) are just as capable of reading drawdown -- and election -- schedules, of gauging weakness and strength, as we are. It's likely that by the fall the surge effect will have worn off -- signs of this are already in the air -- and Iraq will be creeping back onto front pages and to the top of the TV news.

Given that Senator McCain is so tightly linked to the surge's"success," as well as the war itself, he is likely to prove a far weaker Republican candidate than now generally imagined. Similarly, it may be far harder to Swift Boat the Democrats over Iraq by this fall -- if, that is, the Democratic presidential candidate doesn't move so close to McCain on the war as to take the sting out of his situation. Already, as Gary Kamiya has written at Salon.com, the Democrats'"timid, Republican-lite approach to Iraq and the 'war on terror' has put the country to sleep… Indeed, polls show that the main reason the public has such a low opinion of Congress is that it failed to force Bush to change course in Iraq."

Iraq is a deeply alien land whose people were never going to accept being garrisoned by the military of a Western imperial power. It was always delusional to think that our situation there could be"enduring," no matter how many permanent-looking structures we built. It is no less delusional for Senator McCain to imagine a 100-year garrisoning -- in fact, one of any length -- in which Americans will not be"injured, harmed or killed."

The time for withdrawal from Iraq has long passed. In those endless years in which withdrawal didn't happen, the Bush administration definitively proved one thing: We are incapable of"solving" Iraq's problems,"building" a nation there, or preventing an endless string of horrific things from occurring. After all, it was under U.S. occupation and in the face of the overwhelming presence of American forces that Iraq devolved and massive ethnic cleansing occurred. It was during the months of the President's surge in 2007, with U.S. troops flooding the streets of the capital, that many of Baghdad's mixed neighborhoods were most definitively" cleansed."

It is a delusion to believe that the U.S. military is a force that stands between Iraqis and catastrophe. It is a significant part of the catastrophe and, as long as Washington is committed to any form of permanency (however euphemistically described), it cannot help but remain so.

Every day that passes, the Bush administration is digging us in further, even though surge commander General David Petraeus recently observed that"there is no light at the end of the tunnel that we're seeing." Every day that passes makes withdrawal that much harder and yet brings it ineradicably closer.

Getting out, when it comes, won't be elegant. That's a sure thing by now; but, honestly, you don't have to be a military specialist to know that, if we were determined to leave, it wouldn't take us forever and a day to do so. It isn't actually that hard to drive a combat brigade's equipment south to Kuwait. (And there's no reason to expect serious opposition from our Iraqis opponents, who overwhelmingly want us to depart.)

When withdrawal finally comes, the Iraqis will be the greatest losers. They will be left in a dismantled country. They deserve better. Perhaps an American administration determined to withdraw in all due haste could still muster the energy to offer better. But leave we must. All of us.

Copyright 2008 Tom Engelhardt

[Tyler Cowen is a professor of economics at George Mason University.]

... To put it simply, the public this year will probably not vote itself into a much better or even much different economic policy. To be sure, the next president — whoever he or she may be — may well extend health care coverage to more Americans. But most of the country’s economic problems won’t be solved at the voting booth. It is already too late to stop an economic downturn. Health care costs will keep rising, no matter who becomes president or which party controls Congress. China is now a bigger carbon polluter than the United States, so don’t expect a tax or cap-and-trade rules to solve global warming, even if American measures are very stringent — and they probably won’t be, because higher home heating bills are not a vote winner. A Democratic president may propose more spending on social services, but most of the federal budget is on automatic pilot. Furthermore, even if a Republican president wanted to cut back on such mandates, the bulk of them are here to stay.

Yes, the election does matter. Even small differences on economic issues affect millions of Americans. But the record of the Bush administration should prove sobering to all those who expect the American political economy to turn around in the next four years.

Many conservative and libertarian economists supported President Bush, thinking they would be getting policy drawn from the work of Milton Friedman and Martin Feldstein, two respected market-oriented economists. Instead, in economics, the Bush years have brought an increase in domestic government spending, and some poorly-thought-out privatization plans. For all the talk of an extreme right-wing revolution, government transfer programs like Social Security and Medicare have continued to grow. And despite big mistakes involving the Iraq war, Mr. Bush wasn’t punished by voters in 2004.

Of course, an administration can make big economic changes. The New Deal brought about a revolution in economic policy — but those were special circumstances. The United States was in a very deep depression, and the concept of economic planning was sweeping the world. That period is an exception; it does not reflect the general tendency of the American political system, which usually operates by checks and balances. Shifts in economic policy are usually quite moderate.

The reality is that democracy is a very blunt instrument, and in today’s environment we are choosing between ways of muddling through. We may hear that the election is about different visions for America’s future, but the pitches may be more akin to selling different brands of soap.

We hear so many superficial messages precisely because most American voters have neither the knowledge nor the commitment to evaluate the pronouncements of politicians on economic issues. It is no accident that the most influential political science book of the last year has been “The Myth of the Rational Voter,” by Bryan Caplan. The book shows that many voters are ill-informed or even irrational; many economic issues are complex, and each voter knows that he or she will not determine the final outcome....

[Mr. Kramer, the author of Towers on Sand: The Failure of Middle East Studies in America, was a full-time tenured academic at Tel Aviv University. He is now an Olin Institute Senior Fellow at Harvard. Click here for his blog.]

As Hezbollah’s official funeral of Imad Mughniyah unfolded yesterday—Hezbollah’s leader eulogizied him over a coffin decked in Hezbollah’s flag—it was useful to recall the party’s denial of his very existence over all these many years. Mention of his name to Hezbollah officials would draw a blank stare or blanket denial. “Hezbollah professes no knowledge of the man,” the New York Timesreported in 2002. A journalist who interviewed a top Hezbollah official and parliamentary deputy, Abdullah Kassir, once asked him if he knew Mughniyah. “Kassir flashed a blistering look and responded curtly, ‘I have no answer.’”

Hezbollah’s leader, Hasan Nasrallah, followed a double tack: he would defend “freedom fighter” Mughniyah, but not acknowledge him. “The American accusations against Mughnieh are mere accusations,” he was quoted as saying. “Can they provide evidence to condemn Imad Mughnieh? They launch accusations as if they are given facts.” But when pressed, Nasrallah “refused to reveal whether Mughnieh has a role in Hizbullah.” Of course.

Another American academic wrote this precious paragraph in her book on Hezbollah:

For its part, Hezbollah has consistently denied the existence of any relationship with Mughniyeh, direct or indirect. As a matter of record, from the time of the party’s inception, all Hezbollah officials have emphatically denied ever knowing a person by the name of Imad Mughniyeh. The apparent avoidance of this issue is clear in an answer to a recent question about the party’s relationship with Mughniyeh. The response of a Hezbollah senior official was that Mughniyeh had never held a position in their organization, and was, in Deputy Secretary General Naim al-Qassim’s words, ‘only a name’.

The same author then spends a few embarrassing pages agonizing over this question: “Was Mughniyeh a member of Hezbollah?”

Now that Nasrallah’s eulogy has placed Mughniyah officially in the pantheon of Hezbollah’s greatest martyrs (with Abbas al-Musawi and Raghib Harb), this question looks absurd. That it ever arose is a testament to the discipline of Hezbollah in sticking to lies that serve its interests. One of its paramount interests is concealing from scrutiny that apparatus of terror that Mughniyah spent his life building. Hiding the clandestine branch protects it from Hezbollah’s enemies, and makes it easier to sell the movement to useful idiots in the West, who insist that the movement hasn’t done any terror in years, and maybe never did any at all. They produce statements of such mind-boggling gullibility that one can easily imagine Mughniyah chuckling to himself on reading them. The “literature” is rife with claims that Mughniyah didn’t really belong to Hezbollah, or he answered to Iran, or he had his own agenda—anything to dissociate his terrorist acts from the party.

The truth is (and always has been) a simple one. Hezbollah is many things, but it has always included within it a clandestine terrorist branch, and it probably always will. Indeed, Nasrallah’s threat in his eulogy—to commence an “open war” with Israel outside the Israel-Lebanon theater—alludes to the “global reach” that Mughniyah helped to build.

If Hezbollah were absolutely determined to distance itself from the terror tag, it wouldn’t have accorded an official send-off to a most-wanted terrorist. Nor would its leader have stood over his coffin and threatened “open war.” Assassinations of terrorists can boomerang, and so might this one. But it’s already had the one merit of exposing the core of Hezbollah that lies deep beneath the schools, the hospitals, and all the other gimmicks the party uses to get support and pass in polite company. On page one of the International Herald Tribune yesterday, there were photographs of the aftermath of the Beirut bombing of the U.S. Marines barracks (1983), the hijacked TWA Flight 847 (1985), and the ruins of Khobar Towers in Saudi Arabia (1996). That’s Hezbollah too, and that was Imad Mughniyah—and they were one.

[Paula Sutter Fichtner is professor of history emerita at Brooklyn College and Graduate Center, City University of New York. She is the author of many books, including Protestantism and Primogeniture in Early Modern Germany (1997), Emperor Maximilian II (Yale University Press, 2001), and The Habsburg Monarchy 1490-1848: Attributes of Empire (Palgrave, 2003). Her latest book is Terror and Toleration: The Habsburg Empire Confronts Islam, 1526-1850 (Reaktion, 2008).]

All twenty-seven member-states of the European Union are currently pondering Turkey's application for membership. A few are enthusiastic about the prospect; some worry about the economic and demographic consequences of such a move; others are more concerned about the effects on European security that an Islamic government more radical than the current moderate one in Ankara might have.

Of all these states, however, Austria has perhaps the most multi-layered perspective on the possibility of Turkey’s presence at the “heart of Europe”. Other current members, including recent arrivals such as Bulgaria and Romania, have their own national memory of conquest and colonisation during the Ottoman period. But this is very different from the intimate enmity of states and empires – Habsburg vs Ottoman - that for centuries battled one another for religious and territorial pre-eminence in central and east-central Europe. Memories, mental images, even some of the language of this historical conflict with the Muslim Turks still mark Austria (and Hungary, which was once ruled by the Austrian house of Habsburg). Can this experience offer insight into contemporary Europe’s struggle to understand the modern version of its great “other”, and to forge with it a new relationship that by taking account of this history in all its layers might avoid continuing the sorriest aspects of it?

The forge of enmity

Today's Austria and Hungary (taking account of the changes in national territory across recent centuries) were, unlike most of western and northern Europe, once on the frontlines of Ottoman – and Muslim - aggression. From the late 14th century to around 1700, the armies of the Ottoman Turks, marching under the green banner of the Prophet Mohammed, conquered and occupied a good part of the Danube valley, along with much of Balkan Christendom. great stretches of southeastern and east-central – and Christian - Europe. They were forced by bad weather to break their siege of Vienna in 1529, but they clearly intended to try again. By 1541, one of the greatest Ottoman sultans, Süleyman the Magnificent (1494-1566), occupied Buda and Pest (the city was consolidated only in 1872) and most of southern Hungary.

The task of resisting the Turks and the religion with which they became synonymous fell by default to the devoutly Catholic Habsburgs, the Austrian dynasty which itself was assembling a central-European empire that, after 1526, included the kingdoms of Hungary and Bohemia. Thus, Ottoman expansion threatened both the Habsburgs’ faith and the complex of lands that gave them claim to political power in Europe.
Ottoman Muslim rule in Hungary was in important respects no more oppressive than its Christian equivalent. The sultan did not conscript boys to serve in his armies and his court as he did from other territories under his control. Tax collection was less rigorous. When rapacious army units under both Christian and Muslim command tormented civilians, as they often did, the victims could be on either side of the religious divide. Nevertheless, while there may have been a few Austrians and Hungarians who believed that Islam was a religion of peace, no one would have taken them seriously.

To contemporaries in central Europe, the process of Ottoman takeover was terrifying in ways not altogether unfamiliar in the present day. Massive campaigns out of Constantinople and up the Danube valley usually began only after repeated and sudden raids and skirmishes had softened up prospective targets. Men were often massacred on the spot, and women and children kidnapped into various forms of servitude. Settlements were looted, then burned. The Austrian village of Perchtoldsdorf, just beyond the city limits of modern Vienna, was the site of a massacre in 1683 that epitomised for many the bestiality of the Turks and the diabolic character of the religion that they professed.

The human effects of such assaults were devastating. Families were torn apart, sometimes forever, sometimes just long enough for one spouse to remarry, only to have a former partner reappear awkwardly after years of captivity. Diplomats from the Christian world, including Vienna, were often summarily jailed in filth-ridden Ottoman prisons for little more than reporting the views of their home governments. Even for people who survived such episodes, life could become living martyrdom.
Many of these experiences were recounted in gruesome, often physically disgusting, “captive narratives” by central Europeans (Austrians and Hungarians among them). The public that read them was both titillated, especially when the subject was the inner workings of harems, and alerted to what awaited Christians who fell into the hands of the Turks. Many of these were translated into several languages and reprinted well into the 18th century.

Such experiences - real and vicarious alike - gave rise in central and east-central Europe to views of the “Muslim-as-Turk” that would shock all but the most confirmed of today's Islamophobes. Indeed, it is distress over the political and social divisiveness of these images that prompts many western politicians of today to squelch them as fast as they can. Habsburg governments and the church they supported struggled with no such compunctions. They spread these notions that quickly hardened into stereotypes to impress upon their peoples the urgency of resisting an enemy that took land and life as well as religion. Popular songs and homilies, printed broadsides and various forms of visual arts – all were co-opted into making the Turk and his faith as loathsome and as frightening as possible.

From this complex emerged visions of the Muslim Turk that still lurk in the minds of many in Austria, Hungary, and elsewhere in eastern and southeastern Europe: the Turk as The Lecherous Brute, the Turk as The Child- (particularly Male Child-) Molester, the Turk as the Wanton Destroyer of Life and Property, the Turk as the Terror of the World - such epithets and many more like them became common usages in the speech and languages of the Habsburg empire. Scholars, aristocrats, and the vast range of common folk, literate and illiterate, all were familiar with them. These negatives, of course, were often contrasted with the virtues of Christianity and the dynasty that was defending it.

Flare-ups of these sentiments do reappear in Austrian public life even today. But these outbursts are considerably offset by the widespread belief that the Turks and their religion should be judged on the basis of informed understanding rather than inherited imagery. In light of the long-standing hostility between Muslim Turk and Christian, however, it might be enlightening to ask: how did such an attitudinal change take place? If nothing else, such a query may offer some guidance for modern leaders who believe that they must resist Islamist terrorism, but without demonising an entire faith and its believers.

A turn to the liberal

Ottoman military fortunes in central Europe began an irreversible downslide turn in the summer of 1683. After a destructive campaign in the environs of Vienna, the sultan's forces besieged the city from 4 July to 11 September. On 12 September, an international coalition of Christian armies put the Ottoman troops into flight. One decisive victory led to more; by 1700 virtually all of Hungary was free of Turkish overlordship. In the next two decades, Habsburg armies had descended the Danube far enough to contest Belgrade in 1717.

It is always easier to think more objectively about one's enemies when they are no longer a threat. The response in the territories of the Habsburg empire to the defeat of the Turks was no exception.
Indeed, routinely malicious stereotyping of the Turks and their faith faded so quickly in the18th century in Vienna and other parts of the Habsburg monarchy as to provoke extensive contemporary commentary. The educated elites and those in high government service began looking at their onetime foe in much more nuanced ways. While very few forgot or diminished Ottoman-inspired torments and the role of the house of Austria in bringing them to an end, Habsburg rulers and imperial ministers saw that they had to work with the sultans in Constantinople and - when necessary - to accommodate their culture. In this sense the regimes of the erstwhile Muslim enemy, while decisively restrained in Europe, were not to be humiliated in perpetuity, at least at the level of state relations. The motives on both sides, however, were far more practical than moral. Ottoman support was needed for the Habsburgs to check Russian expansion into the Balkans and toward the Black Sea, and the Turkish rulers required Habsburg help for the same reason.

But power politics alone did not revise stereotypes. Even at their most aggressive, the Turks had received some favourable press in central Europe. The captives who wrote so pathetically of their own miseries and those of fellow Christians as prisoners in the Ottoman lands, had good things to say about their enemy too. It was possible for Christians to interact cordially with Turks at public baths in Hungary or even in some prisons. There was a stereotype of the Turk that emphasised his positive, admirable qualities: particularly as a fighting man, who was disciplined, clean, and brave beyond many of his European counterparts. Furthermore, although the house of Habsburg was fervently Roman Catholic, it had not set out to exterminate Islam as a faith: curbing Ottoman territorial appetites was quite enough. Once that mission had been accomplished, rulers in Vienna saw no principled impediment to dealing with the Turk as he was rather than, under the pressures of self-defence, he had been imagined to be.

Vienna's willingness to establish closer economic ties to the Ottoman-ruled Balkans also moderated views of its former enemy and his culture. Trade had often had tamed confessional antagonisms. Even at the height of the Habsburg-Ottoman conflict, Hungarian towns and markets where Christian and Muslim did business with one another were often free of religious tensions. And merchants from Constantinople, though not necessarily Muslims ([Christian] Armenians, for example, played a prominent role in Ottoman business life), had been plying their wares in the Habsburg Austrian lands to great effect. The most notable import to come with them was coffee, drunk ceremonially at the Ottoman court by Christian and Muslim alike long before it had made its way into central Europe.

Moreover, 18th-century ideals of the oneness of mankind and the commonalities of all religions made such rapprochement even easier. Austria's version of the Enlightenment, it is true, encouraged new stereotypes of Turks and Muslims; but these were far less threatening and more reassuring than the vicious images of the past. Two of the most important and influential examples perform in Mozart's comic opera, The Abduction from the Seraglio: the humanitarian Pasha Selim, who sounds like a contemporary European moralist despite his turban, and his overseer, the irascible, lecherous, and arrogantly stupid Osmin. Neither figure comes out of Ottoman cultural realities, but both are recognisably human, a quality that earlier Christian visions of the Muslim-Turk barely admitted.

But it was educational and cultural policies in the Habsburg empire that did the most to cultivate more objective views of the Turks and Islam in the Habsburg empire. By the middle of the 17th century, the dynasty's government had recognised that all too many negotiating sessions with the Turks had collapsed because of linguistic slips and cultural misunderstandings. As the Habsburg–Ottoman border in the Balkans grew after 1700, Vienna's customs and diplomatic officials encountered speakers not only of Turkish but of several other languages too. The house of Austria and its advisors therefore embarked upon a systematic programme to train a small group of talented boys who would serve as translators and interpreters in Constantinople and other outposts if need be. In 1754, Empress Maria Theresa (1717-80) opened the Imperial Oriental Academy, modelled on the French institute founded by Louis XIV. At first expected to produce only interpreters and translators, the Vienna academy soon became a selective finishing-school for diplomats and other emissaries to be sent to the east.

Thus, by the end of the 18th century, the Vienna government had decided once and for all that solid information about the Ottoman empire was far more informative than distorted polemic. The plan of study at the Oriental Academy developed accordingly. The study of the culture and history of the Ottoman empire quickly became as important in the curriculum as linguistic training. Without both, or so the view of the faculty ran, no one could deal effectively with alien cultures. Out of this education came not only unusually learned foreign-service personnel, but a school of Austrian “Orientalists” who were instrumental in sharpening European awareness of Ottoman and eastern civilisations alike. A figure central to this enterprise was Joseph von Hammer-Purgstall (1774-1856), whose ten-volume history of the Ottoman empire (1827-35) remained a basic work for Ottomanists well into the 20th century. An outstanding student at the Oriental Academy, he was also heavily influenced by Enlightenment universalism and its Austrian equivalent, the historical realism of the German scholar Leopold von Ranke (1795-1886), and by the cultural pluralism at the basis of Johann von Herder's (1774-1803) philosophy of history.

Hammer-Purgstall worked tirelessly as a researcher, editor, translator, and publicist to make fact-based scholarship a norm for Oriental studies. Driving this commitment, however, was a much more expansive programme, for which uncovering new primary sources and accumulating information were only the beginning. His final goal was to persuade others to understand cultures on their own terms. In order to do this, it was necessary to clear one's own mind of prejudice and the slipshod thinking that it fostered.
Neither Hammer-Purgstall, his immediate circle of friends and supporters, nor his natural successor in the Austrian school of Oriental scholarship, Alfred von Kremer (1828-89), were uncritical of Islamic and eastern civilisations even ast hey tried to study them free of the biases of the past. The after-effects of Ottoman aggression in central Europe were still visible in Hammer-Purgstall's lifetime. Both men deplored the religious obscurantism that, as they saw it, pervaded the Islamic lands of their day. These societies and governments were far too repressive for progressive European tastes as well. Kremer quite emphatically preferred the relative liberalism of his native environment to the stifling intellectual environment that he found in the east. Both men realised that without Habsburg government and theinstitutions it promoted, they would not have received the education that had made their careers.

Nevertheless, neither Hammer-Purgstall nor Kremer were indiscriminate yes-men of their regimes. Both of them were quick to train their critical sights on negative features of Habsburg political, social (and in Kremer's case, economic, life). Hammer-Purgstall viscerally disliked the reactionary government and constricting religiosity of post-Napoleonic Austria. Kremer's views of his government and its Ottoman counterpart were about as far from pro-Habsburg propaganda of the early-modern era as one could get. Both states, he thought at the end of the 19th century, had something to teach the other about the problems of ruling multinational domains.

Then and now

Orientalists today do not command great scholarly respect, thanks in good part to the late Edward Said (1935-2003). His hugely influential Orientalism (1978) laid out an eloquent brief against European writers on the east who, for all of their passion they poured into their work, were conscious, or at best, unwitting handmaidens of European global expansion. Their literature, art, and learning reinforced the linguistic and cultural infrastructure of imperialism in the east and gave rise to demeaning stereotypes of eastern civilisations and their religions that took firm hold of Europeans. Once entrenched among elites and interested governments, he went on to say in his later writing, these negative ideas could only be dislodged from a groundswell of protest from the less powerful.
Both Hammer-Purgstall and Kremer willingly served their ruling dynasty in several official positions. One of the former's great disappointments was that he was never made Austrian resident ambassador in Constantinople (Kremer had several consular assignments in the middle east). Both men realised that putting their linguistic expertise and sophisticated training at the disposal of their government gave support to the house of Habsburg's political and economic ambitions. Hammer-Purgstall even observed at one point that British willingness to learn something about the culture and languages of India had helped bring the Raj to the sub-continent.

Such involvement with established power would seem to open them to Said's general criticism of Orientalism, though he himself confessed in his book that he had bypassed the German side of the question. If he had ventured over the Rhine, he might have written a more qualified story. The work and career of Hammer-Purgstall testifies much less to scholarly subservience than to human willingness to reject intellectually barren clichés about alien and even hostile cultures in the name of serious learning.

Nor was it the resentful underclasses of Habsburg society that promoted the spread of his ideals to gradually widening circles throughout the empire. It was the Habsburg regime itself, on grounds that had little to do with high principle and a great deal to do with reasons of state. That government probably never intended that Austrian Orientalism acquire the philosophical commitment that it did; indeed, the development from start to finish had the air of the accidental about it. But accidents occur; and once they do they are fair game for history, to be studied both for content and occasionally for advice.

[Louis Fisher is a Specialist in Constitutional Law with the Law Library of the Library of Congress. Earlier he worked for the Congressional Research Service from 1970 to March 3, 2006. During his service with CRS he was Senior Specialist in Separation of Powers and research director of the House Iran-Contra Committee in 1987, writing major sections of the final report. Fisher received his doctorate in political science from the New School for Social Research and has taught at a number of universities and law schools. He is the author of seventeen books, including In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006), Presidential War Power (2d ed. 2004), American Constitutional Law (with David Gray Adler, 7th ed. 2007), and the forthcoming The Constitution and 9/11: Recurrent Threats to America’s Freedoms. He has received a number of book awards.]

Mr. Chairman, thank you for inviting me to testify on the “state secrets privilege.” I want to express my appreciation to Senators Kennedy and Specter for their leadership in drafting remedial legislation, S. 2533. It is a very thoughtful, constructive bill. The state secrets privilege is now a central issue and Congress is the appropriate branch of government to supply much needed procedures and governing principles.

My interest in state secrets is a natural one. For the past 38 years I have helped Congress with separation of power issues, working first with Senator Sam Ervin in the early 1970s on the impoundment of funds dispute. In recent decades I have focused my research on questions of presidential power in the field of national security. My book on the state secrets case, United States v. Reynolds (1953), was published in 2006 and I have worked closely with the Constitution Project on its efforts to reform the state secrets privilege.1

What Constitutional Principles Guide Us?

Reforming the state secrets privilege is necessary to protect constitutional principles, particularly the system of checks and balances. It is critical that we be able to rely on an independent judiciary to weigh the competing claims of litigants and preserve the adversary process. No litigant, including the executive branch, should be presumed in advance to be superior to another. A sense of fairness in the courtroom is essential in protecting the integrity and credibility of the judiciary.

We all understand the need to protect state secrets and recognize an appropriate role for the state secrets privilege. The U.S. Code is filled with penalties to be applied to those who misuse classified information. That value, however, is balanced by another. We know that the executive branch regularly overclassifies documents. We have seen documents stamped “secret” and “top secret” that, once released, should never have been classified in the first place. Moreover, whichever party is in power, the executive branch has a pattern of presenting false and unreliable information to the judiciary. The Japanese-American cases of 1943-44 and the Pentagon Papers Case of 1971 are examples of administrations making misrepresentations to federal judges. Other countries, such as Canada, recognize that there is a natural tendency for executive officials to exaggerate the sensitivity of government documents in order to hide embarrassments (Appendix A).

Some court decisions and private studies date the state secrets privilege to the Aaron Burr trial of 1807 and the Totten case of 1875. For reasons I provide at the end of this statement, those precedents have no application to the kinds of state secrets cases that concern us today and that prompted the need for this hearing and a legislative remedy (Appendix B).




How the Judiciary was Misled in Reynolds

The executive branch made misrepresentations in United States v. Reynolds (1953), the very case in which the Supreme Court first recognized the state secrets privilege. In that lawsuit, the widows of three civilian engineers killed in the crash of a B-29 sought production of an Air Force accident report. The trial court and the Third Circuit gave the government a choice: either turn over the requested documents to the trial judge, to be read in chambers, or you lose the case. The lower courts understood that Congress, in the Federal Tort Claims Act, had established the policy that when private individuals sue the United States, the government is to be treated like any private party. When the government chose to withhold the documents, the district court and the Third Circuit ruled in favor of the three widows (Appendix C).

Those decisions were reversed by the Supreme Court, which produced a decision with many inconsistent principles. It claimed that judicial control over evidence “cannot be abdicated to the caprice of executive officers,” but did precisely that by holding for the government without ever looking at the disputed documents, including the accident report. Instead, the Court relied entirely on assertions by executive officials about the content of the documents (Appendix D). We now know, by looking at the documents, that they contain no state secrets (Appendix E). The Court was misled by the executive branch and allowed itself to be misled.

Deference?

In state secrets cases, federal judges have at times treated executive assertions about state secrets with “deference” or “utmost deference.” Either standard undermines the principle of judicial independence, the essential safeguard of checks and balances, and the right of private litigants to have a fair hearing in court. Unless federal judges look at disputed documents, we do not know if national security interests are actually at stake or whether the administration seeks to conceal not only embarrassments but violations of law.

Executive officials have unquestioned expertise and experience in the field of national security, but they also have a record of making misleading and false claims to the public, to Congress, and the courts. Executive claims inevitably have a quality of self-interest, as would be expected of any litigant. The duty of a federal court is to assure that all litigants to a lawsuit are properly heard and that the judge is sufficiently informed before reaching a judgment. The executive branch already has a decided advantage in state secrets cases when judges look at documents in camera and ex parte, with private parties and their counsel excluded. There is a need to restore the independence and integrity of court proceedings when state secrets are involved. As noted in the statement by William Webster, former CIA Director, FBI Director, and federal judge: “It is judges, more so than executive branch officials, who are best qualified to balance the risks of disclosing evidence with the interests of justice. . . . Granting executive branch officials unchecked discretion to determine whether evidence should be subject to the state secrets privilege provides too great a temptation for abuse.”2

There have been many state secrets cases over the years. The stakes today are much higher. Following the terrorist attacks of 9/11, the administration has invoked the state secrets privilege to block efforts in court by private litigants who claim that the government, in such cases as NSA surveillance and extraordinary rendition, has violated statutes, treaties, and the Constitution. The use of the privilege is no longer limited to efforts to prohibit disclosure of particular documents, as in the Reynolds case. It is now relied on to bar challenges to government national security programs. The executive branch argues that the President possesses certain “inherent” powers in times of emergency that override and countervail limits set by the other branches. Even if it appears that the administration has acted illegally, the executive branch advises federal judges that a case cannot allow access to secret documents without jeopardizing national security.

Deference has several meanings. It can imply a partiality and favoritism toward someone or an agency. That should not be the position of federal courts in state secrets cases. It has been suggested that the proper standard for deference is the Chevron standard, used by courts to review the reasonableness of agency regulations. Yet unlike the field of administrative law, in which Congress plays an active role in monitoring and checking executive actions, the sole check over state secrets is the judiciary. State secrets are not part of an open, public political process, as is the case with agency regulations.

Deference has a second meaning: indicating respect toward a party. That is the appropriate posture for the courts in state secrets cases, respect not only toward the executive branch but respect toward private parties bringing a case.

Defining “State Secret”

These comments lead me to some thoughts about the definition of “state secret” that appears in S. 2533. Section 4051 provides: “In this chapter, the term ‘state secret’ refers to any information that, if disclosed publicly, would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States.” Even with these qualifiers (“reasonably likely” and “significant harm”), I think the definition favors executive power over private plaintiffs. Few judges, reading this definition, will feel comfortable in substituting their opinions about national defense or foreign relations for those of the executive branch. The very solid sections later in the bill, giving judges access to evidence and establishing procedures for redacted and non-privileged substitutes, do not erase the advantage the definition gives to the executive branch. As a result, the principles of judicial independence, checks and balances, and fairness in the courtroom are endangered.

I would prefer to add a second sentence to the definition: “The assertion of a state secret by the executive branch is to be tested by independent judicial review.” I think those two sentences accurately reflect the content and purpose of the bill. Courts would be directed to treat executive claims about state secrets initially as an assertion, subject to independent judicial analysis. This definition protects the integrity of the courtroom and gives private parties the hope of fair treatment. Even those who generally support a broad view of executive power over state secrets, such as recent testimony by Patrick Philbin, recognize that the “mere assertion of the privilege by the Executive does not require a court to accept without question that the material involved is a state secret.”3

Immunity?

I would also like to see a third sentence added to the definition: “The ‘state secrets privilege’ may not shield illegal or unconstitutional activities.” We all recognize the need for state secrets. I see no reason why the state secrets privilege should sanction violations of statutes, treaties, or the Constitution (violations either by the government or by private parties). If I read Section 4055 of S. 2533 correctly, it seems to open the possibility that the state secrets privilege could be used to shield and immunize illegal conduct. The section authorizes a federal court to dismiss a claim or counterclaim brought by a private party against the government if continuing with the litigation “in the absence of the privileged material evidence would substantially impair the ability of a party to pursue a valid defense to the claim or counterclaim.” The language appears to allow private parties like the telecoms to violate FISA or other laws and be immunized on the ground that the existence of state secrets in the case prevents them from mounting a valid defense. Is that the intent or effect of the bill?

Conclusions

Our experience with state secrets cases underscores the need for judicial independence in assessing executive claims. Assertions are assertions, nothing more. Judges need to look at disputed documents and not rely solely on how the executive branch characterizes them. Affidavits and declarations signed by executive officials, even when classified, are not sufficient.

For more than fifty years, lower courts have tried to apply the inconsistent principles announced by the Supreme Court in Reynolds. Congress needs to enact statutory standards to restore judicial independence, provide effective checks against executive mischaracterizations and abuse, and strengthen the adversary process that we use to pursue truth in the courtroom. Otherwise, private plaintiffs have no effective way to challenge the government through lawsuits that might involve sensitive documents or evidence. Judges, not the executive branch, must have the final say about whether disputed evidence is subject to the state secrets privilege.

Congress has constitutional authority to provide new guidelines for the courts. Article III, section 2, of the Constitution specifically grants Congress the power to enact “regulations” regarding the jurisdiction of federal courts. Article I empowers Congress to “constitute Tribunals inferior to the supreme Court” and to enact all laws necessary and proper to carry into effect that power. Congress has full authority to adopt rules of evidence and to assure private parties that they have a reasonable opportunity to bring claims in court. What is at stake is more than the assertion by the executive branch regarding state secrets. Congress has a duty to protect the health of a political system that depends on separation of powers, checks and balances, and safeguards to individual rights.

In the past-half century, Congress has repeatedly passed legislation to fortify judicial independence in cases involving national security and classified information. Federal judges now gain access to and make judgments about highly sensitive documents. Congressional action with the FOIA amendments of 1974, the FISA statute of 1978, and the CIPA statute of 1980 were conscious decisions by Congress to empower federal judges to review and evaluate highly classified information. Congress now has an opportunity to pass effective state secrets legislation.


Appendix A:
Concealing Executive Mistakes

Administrations have invoked the claim of state secrets to hide misrepresentations and falsehoods. In the Japanese-American cases of 1943 and 1944, the Roosevelt administration told federal courts that Japanese-Americans were attempting to signal offshore to Japanese vessels in the Pacific, providing information to support military attacks along the coast. Analyses by the Federal Bureau of Investigation and the Federal Communications Commissions disproved those assertions by the War Department. Justice Department attorneys recognized that they had a legal obligation to alert the Supreme Court to false accusations and misconceptions, but the footnote designed for that purpose was so watered down that Justices could not have understood the extent to which they had been misled. Scholarship and archival discoveries in later years uncovered this fraud on the court and led to coram nobis (fraud against the court) lawsuit that reversed the conviction of Fred Korematsu.4

A second coram nobis case was brought by Gordon Hirabayashi, who had been convicted during World War II for violating a curfew order. The Justice Department told the Supreme Court in 1943 that the exclusion of everyone of Japanese ancestry from the West Coast was due solely to military necessity and the lack of time to separate loyal Japanese from those who might be disloyal. The Roosevelt administration did not disclose to the Court that a report by General John L. DeWitt, the commanding general of the Western Defense Command, had taken the position that because of racial ties, filial piety, and strong bonds of common tradition, culture, and customs, it was impossible to distinguish between loyal and disloyal Japanese-Americans. To General DeWitt, there was no “such a thing as a loyal Japanese.”5 Because this racial theory had been withheld from the courts, Hirabayashi’s conviction was reversed in the 1980s.6

Insights into executive secrecy also come from the Pentagon Papers Case of 1971. This was not technically a state secrets case. It was primarily an issue of whether the Nixon administration could prevent newspapers from continuing to publish a Pentagon study on the Vietnam War. Solicitor General Erwin N. Griswold warned the Supreme Court that publication would pose a “grave and immediate danger to the security of the United States” (with “immediate” meaning “irreparable”). Releasing the study to the public, he warned the Court, “would be of extraordinary seriousness to the security of the United States” and “will affect lives,” the “termination of the war,” and the “process of recovering prisoners of war.” In an op-ed piece, published in 1989, he admitted that he had never seen “any trace of a threat to the national security” from the publication and that the principal concern of executive officials in classifying documents “is not with national security, but rather with governmental embarrassment of one sort or another.”7

During a October 18, 2007 hearing before the House Foreign Affairs and Judiciary subcommittees, Kent Roach of the University of Toronto law school reflected on similar problems in Canada of executive misuse of secrecy claims. He served on the advisory committee that investigated the treatment by the United States of Maher Arar, who was sent to Syria for interrogation and torture. Mr. Roach said the experience of the Canadian commission “suggests that governments may be tempted to make overbroad claims of secrecy to protect themselves from embarrassment and to hinder accountability processes.” The commission concluded that much of the information about contemporary national security activities “can be made public without harming national security.” A court decision in Canada authorized the release “of the majority of disputed passages.”8 The Royal Canadian Mounted Police (RCMP) described Arar and his wife as “Islamic Extremist individuals suspected of being linked to the Al Qaeda terrorist movement.” The Canadian commission concluded that the RCMP “had no basis for this description.”9

Appendix B
Aaron Burr and Totten

There are many reasons why the Aaron Burr trial of 1807 has no application to current state secrets cases. A main reason is that he was tried in a criminal case for treason. Lawsuits over state secrets are civil cases. It is true that at one point the Jefferson administration claimed that some of the letters sought by Burr for his defense contained “state secrets,” but the administration and the court understood that a defendant in a criminal case had a right to gain access to evidence used against him. If the government declines to surrender the evidence, it must drop the charges against the defendant. The administration took steps to place the documents in the hands of the court and his attorneys. In the end, Burr was found not guilty.10

Totten involves a very narrow and special category of cases where individuals enter into secret agreements with the government to spy. President Lincoln had agreed to a contract with William A. Lloyd to have him proceed south and collect data on the number of Confederate troops stationed in different places, plans of forts and fortifications, and other information that might be useful to the Union government. For his services, he was to be paid $200 a month, but he received funds only to cover his expenses. His heirs tried to collect for the monthly allowance. The Supreme Court held that any individual who enters into a secret contract cannot expect relief from the courts.11 A distinction exists between ordinary contracts (enforceable in court) and secret contracts (which are not). The Totten type of case is not justiciable; state secrets cases are.12

Totten was recently at issue in the case of Tenet v. Doe (2005).13 Once again private parties alleged that they had not received promised assistance for espionage work. The Court found that the lawsuit was barred by Totten. In the current NSA cases, there have been arguments that the telecoms had entered into a secret espionage agreement with the government, but in the Totten/Tenet cases the private parties are plaintiffs; the telecoms are defendants.14

Appendix C
Reynolds: Trial Court and Third Circuit

The pattern of misrepresentations by executive officials described above applies to the Supreme Court decision that first recognized the state secrets privilege, United States v. Reynolds (1953). On October 6, 1948, a B-29 plane exploded over Waycross, Georgia, killing five of eight crewmen and four of the five civilian engineers who were assisting with secret equipment on board. Three widows of the civilian engineers sued the government under the recently enacted Federal Tort Claims Act of 1946. Under that statute, Congress established the policy that when individuals bring lawsuits the federal government is to be treated like any private party. The United States would be liable in respect of such claims “in the same manner, and to the same extent as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages.”15 Thus, private parties who sued the government were entitled to submit a list of questions (interrogatories) and request documents. The wives asked for the statements of the three surviving crewmen and the official accident report.

District Judge William H. Kirkpatrick of the Eastern District of Pennsylvania directed the government to produce for his examination the crew statements and the accident report. When the government failed to release the documents for the court’s inspection, he ruled in favor of the widows.16 The Third Circuit upheld his decision. The appellate court said that “considerations of justice may well demand that the plaintiffs should have had access to the facts, thus within the exclusive control of their opponent, upon which they were required to rely to establish their right of recovery.”17 In so deciding, the Third Circuit supported congressional policy expressed in the Federal Tort Claims Act and the Federal Rules of Civil Procedure, all designed to give private parties a fair opportunity to establish negligence in tort cases. Because the government had consented to be sued as a private person, whatever claims of public interest might exist in withholding accident reports “must yield to what Congress evidently regarded as the greater public interest involved in seeing that justice is done to persons injured by governmental operations whom it has authorized to enforce their claims by suit against the United States.”18

In addition to deciding questions of law, the Third Circuit considered the case from the standpoint of public policy. To grant the government the “sweeping privilege” it claimed would be contrary to “a sound public policy.” It would be a small step, said the court, “to assert a privilege against any disclosure of records merely because they might be embarrassing to government officers.”19 The court reviewed the choices available to government when it decides to withhold information. In a criminal case, if the government does not want to reveal evidence within its control (such as the identity of an informer), it can drop the charges. To the court, the Federal Tort Claims Act “offers the Government an analogous choice” in civil cases. It could produce relevant documents under Rule 34 and allow the case to move forward, or withhold the documents at the risk of losing the case under Rule 37. In Reynolds, at the district and appellate levels, the government decided to withhold documents.

On the question of which branch has the final say on disclosure and access to evidence, the Third Circuit summarized the government’s position in this manner: “it is within the sole province of the Secretary of the Air Force to determine whether any privileged material is contained in the documents and . . . his determination of this question must be accepted by the district court without any independent consideration of the matter by it. We cannot accede to this proposition.”20 A claim of privilege against disclosing evidence “involves a justiciable question, traditionally within the competence of the courts, which is to be determined in accordance with the appropriate rules of evidence, upon the submission of the documents in question to the judge for his examination in camera.”21 To hold that an agency head in a suit to which the government is a part “may conclusively determine the Government’s claim of privilege is to abdicate the judicial function and permit the executive branch of the Government to infringe the independent province of the judiciary as laid down by the Constitution.”22

Were there risks in sharing confidential documents with a federal judge? The Third Circuit dismissed the argument that judges could not be trusted to review sensitive or classified materials: “The judges of the United States are public officers whose responsibility under the Constitution is just as great as that of the heads of executive departments.” Judges may be depended upon to protect against disclosure those matters that would do damage to the public interest. If, as the government argued, “a knowledge of background facts is necessary to enable one properly to pass on the claim of privilege those facts also may be presented to the judge in camera.”23

Appendix D:
The Supreme Court’s Opinion

The government’s insistence in the Reynolds case that it has a duty to protect military secrets came at the height of revelations about Americans charged with leaking sensitive and classified information to the Soviet Union. During this period Julius and Ethel Rosenberg were prosecuted for sending atomic bomb secrets to Russia. They were convicted in 1951, pursued an appeal to the Second Circuit the following year, and after a failed effort to have the Supreme Court hear their case they were executed on June 19, 1953. The years after World War II were dominated by congressional hearings into communist activities, the Attorney General’s list of subversive organizations, loyalty oaths, security indexes, reports of espionage, and counterintelligence efforts. Alger Hiss, convicted of perjury in 1950 concerning his relationship to the Communist Party, served three and a half years in prison. The government pursued J. Robert Oppenheimer for possible espionage, leading to the loss of his security clearance in 1954.

In Reynolds, the government argued that it had exclusive control over what documents to release to the courts. Its brief stated that courts “lack power to compel disclosure by means of a direct demand on the department head” and “the same result may not be achieved by the indirect method of an order against the United States, resulting in judgment when compliance is not forthcoming.”24 It interpreted the Housekeeping Statute (giving department heads custody over agency documents) “as a statutory affirmation of a constitutional privilege against disclosure” and one that “protects the executive against direct court orders for disclosure by giving the department heads sole power to determine to what extent withholding of particular documents is required by the public interest.”25 Congress had never provided that authority and earlier judicial rulings specifically rejected that interpretation.26

In its brief, the government for the first time pressed the state secrets privilege: “There are well settled privileges for state secrets and for communications of informers, both of which are applicable here, the first because the airplane which crashed was alleged by the Secretary to be carrying secret equipment, and the second because the secrecy necessary to encourage full disclosure by informants is also necessary in order to encourage the freest possible discussion by survivors before Accident Investigation Boards.”27

The fact that the plane was carrying secret equipment was known by newspaper readers the day after the crash. The fundamental issue, which the government repeatedly muddled, was whether the accident report and the survivor statements contained secret information. Because those documents were declassified in the 1990s and made available to the public, we now know that secret information about the equipment did not appear either in the accident report or the survivor statements. As to the second point, about the role of informants in contributing to an accident report, that issue had been analyzed in previous judicial rulings and dismissed as grounds for withholding evidence from a court.28

Toward the end of the brief, the government returned to “the so-called ‘state secrets’ privilege.”29 The claim of privilege by Secretary of the Air Force Finletter “falls squarely” under that privilege for these reasons: “He based his claim, in part, on the fact that the aircraft was engaged ‘in a highly secret military mission’ and, again, on the ‘reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force. The airplane likewise carried confidential equipment on board and any disclosure of its mission or information concerning its operation on performance would be prejudicial to this Department and would not be in the public interest.”30

Nothing in this language has anything to do with the contents of the accident report or the survivors’ statements. Had those documents been made available to the trial judge, he would have seen nothing that related to military secrets or any details about the confidential equipment. He could have passed them on the plaintiffs, possibly by making a few redactions.

At various points in the litigation the government misled the Court on the contents of the accident report. It asserted: “to the extent that the report reveals military secrets concerning the structure or performance of the plane that crashed or deals with these factors in relation to projected or suggested secret improvements it falls within the judicially recognized ‘state secrets’ privilege.”31 To the extent? In the case of the accident report the extent was zero. The report contained nothing about military secrets or military improvements. Nor did the survivor statements.

On March 9, 1953, Chief Justice Vinson for a 6 to 3 majority ruled that the government had presented a valid claim of privilege. He reached that judgment without ever looking at the accident report or the survivor statements. He identified two “broad propositions pressed upon us for decision.” The government “urged that the executive department heads have power to withhold any documents in their custody from judicial review if they deem it to be in the public interest.” The plaintiffs asserted that “the executive’s power to withhold documents was waived by the Tort Claims Act.” Chief Justice Vinson found that both positions “have constitutional overtones which we find it unnecessary to pass upon, there being a narrower ground for decision.”32 When a formal claim of privilege is lodged by the head of a department, the “court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.”33

That point is unclear. If the government can keep disputed documents from the judge, even for in camera inspection, how can the judge “determine whether the circumstances are appropriate for the claim of privilege”? The judge would be arms-length from making an informed decision. Moreover, there is no reason to regard in camera inspection by a judge as “disclosure.” As pointed out by Judge Kirkpatrick and the Third Circuit in Reynolds, judges take the same oath to protect the Constitution as do executive officials. In the Supreme Court, Chief Justice Vinson said that in the case of the privilege against disclosing documents, the court “must be satisfied from all the evidence and circumstances” before accepting the claim of privilege.34 Denied disputed documents, a judge has no “evidence” other than claims and assertions by executive officials.

Chief Justice Vinson stated that judicial control “over the evidence in a case cannot be abdicated to the caprice of executive officers.”35 If an executive officer acted capriciously and arbitrarily, a court would have no independent basis for perceiving that conduct unless it asked for and examined the evidence. Chief Justice Vinson said that the Court “will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case.”36 He anticipated circumstances where there would be no opportunity even for in camera inspection: “the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.”37 On what grounds would in camera inspection jeopardize national security? It is more likely that national security is damaged by executive assertions that are never checked and evaluated by other branches.

Chief Justice Vinson further stated: “On the record before the trial court it appeared that this accident occurred to a military plane which had gone aloft to test secret electronic equipment.”38 There was nothing sensitive about that information. On the day following the crash, newspaper readers around the country knew that the plane had been testing secret electronic equipment.39 Chief Justice Vinson concluded that there was a “reasonable danger” that the accident report “would contain references to the secret electronic equipment which was the primary concern of the mission.”40 There was no reasonable danger that the accident report would discuss the secret electronic equipment. The purpose of the report was to determine the cause of the accident. There were no grounds to believe that the electronic equipment caused the crash. Instead of speculating about what the accident report included and did not include, the Court needed to inform itself by examining the report and not accept vague assertions by the executive branch. Without access to evidence and documents, federal courts necessarily abdicate their powers “to the caprice of executive officers.”

Appendix E:
The Declassified Accident Report

Judith Loether was seven weeks old when her father, Albert Palya, died in the B-29 accident. On February 10, 2000, using a friend’s computer, she entered a combination of words into a search engine and was brought into a Web site that kept military accident reports. By checking that site, she discovered that the accident report withheld from federal courts in the Reynolds litigation was now publicly available. Expecting to find national security secrets in the report, she found none. After contacting the other two families, it was agreed to return to court by charging that the government had misled the Supreme Court and committed fraud against it.41

Unlike the successful coram nobis cases brought by Fred Korematsu and Gordon Hirabayashi, Loether and the other family members lost at every level. Initially they went directly to the Supreme Court. Later they went to district court and the Third Circuit. Their appeal to the Court was denied on May 1, 2006. When the Third Circuit ruled on the issue, only one value was present: judicial finality. The case had been decided in 1953 and the Third Circuit was not going to revisit it, even if the evidence was substantial that the judiciary had been misled by the government.42 There appeared to be no value for judicial integrity and judicial independence.

The Third Circuit pointed to three pieces of information in the accident report that might have been “sensitive.” The report revealed “that the project was being carried out by ‘the 3150th Electronics Squadron,’ that the mission required an ‘aircraft capable of dropping bombs’ and that the mission required an airplane capable of ‘operating at altitudes of 20,000 feet and above.’”43

If those pieces of information were actually sensitive, they could have been easily redacted and the balance of the report given to the trial judge and to the plaintiffs. They were looking for evidence of negligence by the government, not for the name of the squadron, bomb-dropping capability, or flying altitude. As for the sensitivity, newspaper readers the day after the crash understood that the plane was flying at 20,000 feet, it carried confidential equipment, and it was capable of dropping bombs. That is what bombers do.

[Andrew Arato, Dorothy Hart Hirshon Professor of Political and Social Theory, The New School for Social Research, New York.]

Is it possible? At least we have found a likely leader. The Battle of the Potomac is over. Despite the name that resembles the bloody exchanges of the Civil War, the mini civil war of the U.S. Democrats will hopefully not last very long. I am watching Obama’s victory speech from Madison, Wisconsin, a famous left wing university town. It is his best yet, combining the thoroughness of Harvard Law School and the emotional fervor of the Black Protestant church. Because McCain wants to stay in Iraq a hundred years, we should not give him four years…..The post-imperial candidate laid down his markers. The students (and myself even more) loved what we heard, expressed so clearly and so eloquently. Is it possible for an imperial Republic, after the failure of Athens and Rome, , for the second time in history after the lone British case, to willingly divest itself of a significant part of its imperial possessions that have become so dangerous for what makes the republican core still great? Yes we can is the Obama slogan, even if coined not exactly for the project that I have in mind. His personality and foreign policy ideas fortunately embody it. He was always against the Iraq war. He wants comprehensive negotiations with all regional powers of the Middle East. He wants to withdraw from Iraq relatively rapidly. But, and it is a big but, despite a series of successful battles, he has not yet won. Not yet against Clinton, and more importantly not yet against the other America, against McCain.

If Clinton loses it is not because she is a woman. In the Democratic Party that fact is rather a plus, ideologically and also because there are more women voters and more woman Democrats. It is because she is a woman, that she is still a serious contender in the race. She is losing instead, aside from Obama’s own strengths, because of her unforgivable two votes on the Iraq War in 2002 that already cost John Kerry (now an Obama supporter) the presidency. Making things worse, she still defends not only her positive vote on the Authorization of the Use of Force, but also the negative one on the Levin Amendment that would have required that the U.S. President go to the UN Security Council first, and, in case failure to get Chapter VII authorization under the Charter, to go back to Congress for explicit authorization to go to war. While in case of the Authorization itself, Clinton now says that knowing everything she knows today (i.e. that there are no weapons of mass destruction in Iraq, and that Bush would abuse the authorization) she would have voted no, she does not say why it was right to trust this particular President and his circle at all, given all the planning for war. But in the case of the Levin Amendment the issue is even more serious. The proposal was eminently sensible as well as deeply constitutional. It is Congress’ constitutional power to declare war. This power cannot be delegated, because it is given by the constituent power. The only possible exception is a Chapter VII war, where under a binding international treaty signed by the U.S. the Security Council is the source of the authorization. This is what happened in the Korean War; the first time the Congressional right to Declare was seriously bypassed. Recently Congressional declarations have been replaced by Authorizations that however do not leave it up to the president to decide whether to go to war or not, as did the Iraq authorization in question. The aim of the Levin Amendment was to replace a “blank check” authorization, clearly unconstitutional, by the choice: either authorization by the Security Council or a more specific, Congressional re-authorization. It is this choice that Hillary Clinton still repeatedly represents in speeches, quite wrongly, as surrendering the powers of the United States to the United Nations. In reality however, she like Bush, wishes to keep the presidential prerogative free of both international and constitutional restraints.

We have seen the consequence of such a liberation from both types of law in Iraq, in Guantanamo, and all places where extraordinary rendition, kidnappings, torture, and detentions without due process have been practiced by U.S. authorities. Hillary Clinton may be an opponent of all that, but she does not attack the problem at its roots even if she goes further than McCain in the one and only case of Iraq. The empire is not only Iraq, and presidential power in an imperial setting would remain a danger also after an Iraqi withdrawal, assuming she would carry it out. As the famous colonel in the film Battle of Algiers said to the assembled French journalists: if you want an Algerie Francaise, you must put up with all that. If you want to protect the American empire as is . . . if you are unwilling to negotiate with all our adversaries without pre-conditions that is of course the pre-condition of orderly withdrawal…then you must put up with the means necessary to protect it. Clinton’s positions on negotiations with Iran indicate that she has not yet learned much from the past, indeed from the war in Iraq itself. And McCain is one of the most aggressive American politicians with respect to both continuing the war in Iraq and risking a new one with Iran. Only Obama, not Clinton, nor McCain in spite of his loud verbal opposition to torture is ready to do what it would take to end the situation in which there is any kind of imperial rationale (however mistaken technically) for torture. Obama (tutored here by Zbigniew Brzezinski) is the only realist among the three candidates still standing, in spite of his soaring rhetoric.

All polls currently indicate that the great majority of the country is with Obama on questions of foreign policy, and has been for two or more years, though they may not yet correctly identify his views on all the issues. But given the threat of recession, the issue of external affairs retreated behind that of the economy. In general this would be an advantage to the Democrats. It is also to Hillary Clinton’s advantage, because of the superior track record of the Clinton administration, her own obvious competence, and better thought out position on very much needed health care reform – where she is an expert paradoxically enough because of her dramatic failure in 1993, that led to the so-called “Republican Revolution in 1994. The Obama idea of “change” has to do mostly with the large issue of identity and foreign policy posture in the world, while Clinton’s slogan experience refers to her managerial abilities in the domestic sphere where there is very little difference between the two equally liberal (in the American sense = social liberal) Democratic candidates. In spite of small, probably tactical differences, they both have dramatic health care reform as the centerpiece of their social program, and they would both pay for it the same way, by refusing to make the outrageous Bush tax cuts that produced huge deficits permanent for the wealthy. They are lucky, because unlike Kerry in 2004 they don’t have to promise to pass new legislation to finance health expenditures . . . all they have to do is the much easier thing, namely to oppose new legislation to make reduction of governmental resources permanent. This will still be called raising taxes by the Republicans; but the stress will be on rescinding tax cuts to the wealthy! In any case, the Democratic electorate is asked to decide whether the more experienced but more polarizing Clinton, or the more novice Obama who is willing to work with Republicans is likely to accomplish a similar domestic agenda. And we still do not know how they will decide this question.

So far, before the three Potomac Primaries, the young, the educated, men and most dramatically blacks were with Obama, older voters, the less well educated, women, and Hispanic-Americans were with Clinton. Obama could win the majority of whites in caucus states where the politically active vote in a kind of township meeting setting that suggests participatory democracy, and where the young and the educated have an advantage. Clinton won the whites in the primary states, where normal elections with secret ballots take place, the form also favoring the Brady (a former losing black Mayor candidate in Los Angeles) effect: the voter tells the pollster that he or she votes for the black but does not do so under the veil of secrecy. This was probably the reason for the huge discrepancy between polls and results in New Hamphshire and California, lost by Obama. Now in Virginia and Maryland, two primary states, the white vote was evenly split and there was no Brady effect! (There may be now a Haile Berry effect, still racist of course: “she is the one black that I would marry”). Admittedly there is also Hillary hatred, but this is measured by the polls; since we still allow substitute languages for misogyny but not for racism: as “she is so aggressive” or “she is such a know it all”. It seems however that her collapse in Virginia and Maryland where she is liked and where she used to be leading is due simply to the rise of Obama.

Obama will most likely take Wisconsin, powered by the young and the educated. Then the big three hurdles will be Ohio, Texas and Pennsylvania. If his current momentum is real he may take all three or two out of three. If he takes both Ohio and Texas on March 4, or one of them and later Pensylvania he has won, and the so-called super delegates will have to fall into line with Carter, Gore and Pelosi leading the pack. If Clinton takes all three she will win, narrowly perhaps depending on the size of her win in proportional elections, to the tremendous disappointment of Obama’s young army, and the super-delegates whose majority is now with her will also fall into line. She would do well in that case to offer the vice-presidency to Obama in a convincing manner, if she wants to win against McCain. If Obama wins only one of the three, and is narrowly ahead, the super-delegates may still want to decide for Clinton. There may even be attempts to illegitimately give Clinton the delegates from the Florida and Michigan primaries where Obama chose not to compete on the orders of the DNC. In either case, in August we will have riots in Denver, the site of the Democratic Convention, that will resemble the siege of Chicago in 1968, and with Clinton playing the role of Hubert Humphrey the Democrats will go on to lose the election. So if Obama has a narrow majority in the end, the party leaders better quickly shift to him and manage some deal. Their choice will be also motivated by electability (that does not = Hillary hatred, pace Stanley Fish!) as an issue, namely the legitmate concern regarding who does better against McCain in the polls. Today it clearly seems to be Obama, but how much of a Bradley effect is hiding in the numbers? Noone knows. Clinton however is more vulnerable on the question of Iraq, exactly like Kerry was, than is Obama with his far greater consistency on the issue.

The electoral results will in any case be all important. Conventionally two things are said: First, that the one with momentum wins and that is now Obama, and, second, the one who can break through his or her prior demographic constraints wins, and that is Obama too, though only marginally. Clinton cannot hope to get the young, or the blacks or the educated to vote against Obama. But in Ohio, Pennsylvania, and Texas she may not have to. If she can continue to get huge majorities among white women, the less educated, and among Hispanic Americans that may be enough. It is Obama who needs to break through his previous demographics, and he has not yet done so enough. Whether the momentum will do it for him remains to be seen.

If he does make it, the Democrats, unlike last time, will have a great convention, one for all the ages. And then debates will be incredibly exciting. McCain already admitted he knows little about the economy and economics, but has read Alan Greenspan’s book. Now that two bubbles (finance and real estate) Greenspan helped to create have burst, that should not be enough. Flip-flopping on taxes (first I was against them as unfair and unwise, before I was for making them permanent) and staying in Iraq permanently will not go over well in the debates with a clever lawyer like Obama. Just one issue remains for McCain: that of commander in chief in wartime, if we are willing to forget that we should not be in any war at all. And here McCain with his military experience looks more like such a figure, however wrong his policies! Obama will undoubtedly show that staying in Iraq even 5 and not 10 or 100 years makes the United States weaker in Afghanistan, weaker against the terrorists, less able to deal with new crises, more and more unpopular in the world and especially the Islamic world. What he then must be ready for is two things. To give a convincing answer to the question of how to withdraw from Iraq in a way that is not catastrophic for Iraq itself, and to deal with crises situations, external or internal, real or manufactured that probably will arise during the campaign, and do so in a very effective and presidential manner. He should be able to do these two things, but the other side that should have certainly lost in 2004 already cannot be underestimated.

We are not there yet. But it is already another country. I did not think I would say it so soon. After years of shame, I am proud of our democracy again. To nominate a very liberal black or a liberal woman, to force even the other America to choose someone with a human face, though largely the wrong policies that are not yet sufficiently known, is a clear repudiation of the politics of 2001-2008. The driving force behind all this is American civil society, and mostly the self-organizing young, and the gods of history have given us a perfect candidate to carry their message and their hope. The activists must not be disappointed by the eventual victory of McCain, or even Clinton. But the future is actually in their own hands. It is they who need to take their country back!

[Scott Kurashige is an associate professor of history at the University of Michigan and author of The Shifting Grounds of Race: Black and Japanese Americans in the Making of Multiethnic Los Angeles (Princeton University Press, 2008).]

The results from the CA Dem primary show that no serious candidate for the presidency can ignore the potential of multiracial voting coalition.
Sixty years ago, Carey McWilliams, the well-traveled writer/activist and soon to be editor of The Nation, described California as "our nation's racial frontier." As the West Coast's multiracial makeup posed new problems and challenges, it also offered America "one more chance, perhaps a last chance, to establish the principle of racial equality." In this regard, it blessed California's residents and observers with "a ringside seat in the great theatre of the future."

In stunning fashion, the California Democratic primary signaled that the future has arrived with dramatic implications for the entire nation. There has never been an important election like this where a candidate failed to win African Americans and whites but won overall-as Clinton did in California. Once again, California flipped the script. Latinos and Asians carried Hillary to victory in California on their backs and quite likely salvaged her entire campaign. The national media has now come around to the idea of Latinos as a "sleeping giant," and the Clinton strategists deserve credit for their attentiveness to the Latino vote. While I am not holding my breath waiting for the media to overcome decades of ignorance of and marginalization of Asian Americans, the Clinton campaign has undoubtedly benefited from the significant involvement of Asian American donors, staffers, and volunteers.

This is a turning point in U.S. political history: no serious candidate for the presidency from here on out can ignore the mandate to build a multiracial coalition. Obama built an impressive biracial coalition in California, winning overwhelmingly among African Americans and splitting the white vote equally. As a result, California may help forestall the media's misguided obsession with Obama's failure to overcome the black/white racial divide. Obama may have lost, but it was not because of the "Bradley effect." Still, his defeat exposed the inadequacy of biracial thinking in the face of a multiracial reality. ...

Casting Obama as a "colorblind" politician, the pundits and his left skeptics have largely missed the significance of what he represents. Getting "beyond race" today is not about ignoring the problem of racism or moderating ones politics to appease whites. Instead, it means thinking about America as a multiracial nation that dispels old notions of both white normativity and majority/minority identities. Culturally and demographically, millions of Americans -- especially youth -- already live in a world where that notion of white majority has been displaced by a multiethnic reality. Obama is helping us to envision what a new majority will look like politically.


For this reason, the Obama campaign is the only one with movement building potential and why we all have a stake in its efforts to build a multiracial coalition on new ground. Following the dictates of pollsters and consultants, traditional Democrats carve us all up into "interest groups," so they can push the hot buttons that reinforce our sense of victimization and vilify the other side. Obama has learned -- both from his study of what historian Charles Payne has called the black freedom struggle's "organizing tradition" and from his experience organizing against the depths of despair in Chicago's deindustrialized South Side -- that such an approach is not only ineffective but also spiritually bankrupt. If you are just a "minority leader," then you're not really a leader at all. If you are only fighting for your "fair share" of the riches controlled by those in power, you'll never address the root causes of oppression. Above all is the sense that none of us can be free in America or face the global crises of our lifetime until we change the whole country. That is why Obama has the "audacity" to think he is the best person to lead the entire nation. ...