What are the issues of Nuremberg and how did they arise?
The greatest trial of all time is taking place in our own day—at Nuremberg. It will certainly overshadow the Dreyfus Affair, the Sacco-Vanzetti case and the Russian treason trials. This will be true not because of the specific crimes committed, or because of the political implications of the accusations. The transcending importance of the Nuremberg trial lies in the fact that, purely as a judicial proceeding, it raises questions that touch the heart of the system of morals and conceptions of justice on which Western civilization is built. It is a legal proceeding unprecedented in international law. It is intended to bolster respect for international law, yet it defies many of the most basic assumptions of the judicial process.
What are the issues and how did they arise?
Punishment without Trial
When the foreign ministers of the Big Three met in Moscow in October 1943, they said that their governments had received from many quarters evidence of atrocities, massacres and cold-blooded mass executions perpetrated by the Nazi forces in the countries overrun by them. Speaking in the interests of thirty-two United Nations, the Big Three declared that at the time of granting any armistice to Germany, Nazis responsible for these crimes, or who had taken a consenting part in them, would be sent back to the countries in which their abominable deeds were done, to be “judged and punished” according to the laws of the liberated countries. The declaration was expressly made “without prejudice to the case of the major criminals, whose offences have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies.” Like Lincoln’s Emancipation Proclamation, made in the course of the Civil War, this declaration on atrocities was a military measure, for it called upon innocent Germans not to imbrue their hands with innocent blood and thus join the ranks of the guilty.
The Moscow Declaration made a distinction between two classes of criminals: (1) those guilty of local crimes, and (2) the major war criminals whose crimes have no local restriction. The former were to be tried and punished; the latter were to be punished.
As late as the Crimea Conference report in February of 1945 and President Roosevelt’s report on the Conference to Congress there was a promise of punishment only for the major war criminals; there was no suggestion that anything like the Nuremberg trial was being planned.
Shortly before the Moscow Declaration, the United Nations War Crimes Commission was set up with Lord Wright as chairman. This commission represented sixteen nations in which Nazi atrocities had been committed, and the United States and Britain. Soviet Russia was not a member of this commission because her request that all sixteen “autonomous” Soviet republics be represented was turned down. Later Russia modified this demand: she would be satisfied with representation of those Russian republics which had been overrun by the Nazis. Once more the other governments refused. Russia thereupon set up her own commission.
The purpose of these two commissions was to investigate charges of war crimes and atrocities, and to collect and preserve the evidence. They made no arrests; this function was left to the military authorities. Until April of 1945, Lord Wright’s commission limited itself to the collection of documentary evidence. We know little about the Russian commission.
At this time the Wright commission believed that there would be only two types of courts: (1) national courts, to hear cases against criminals whose offences affected the inhabitants of only a single country—Quisling, for example, was tried before a Norwegian court; and (2) military courts, such as the British military court in the British sector in Germany which tried and convicted Josef Kramer. Apparently it was still assumed, at the end of April 1945, that Goering, Ribbentrop, Jodl, and the other Nazi chiefs would not be tried but would be punished upon the military order of the United States, Great Britain, Soviet Russia and France. However, the Wright commission was preparing to suggest an international tribunal for the trial of major war criminals. It was not until May 1945 that it was disclosed that the leading war criminals would be brought to trial before the order of punishment would be announced.
It was at this point that Mr. Justice Jackson came into the picture as the central figure. President Truman appointed him as chief counsel of the United States in preparing and prosecuting charges against the major war criminals. Congress was not consulted; this was conceived as a military measure, and the President acted under his war powers. It was announced that the trials would be held before an international military tribunal. This did not mean that the judges of the tribunal would all be military men; it meant only that the tribunal would be set up as an exercise of the military power. Jackson promised a “fair trial” for the accused. He was to proceed on the basis of evidence collected by the Wright commission, and by the Russian commission if the Russians were willing to join the tribunal.
The Russian and French governments were profoundly suspicious of what they considered the Anglo-Saxon tendency to be soft with the Nazis. Jackson had to sell the idea of an international tribunal to the other governments. By August 8, 1945, he was able to win over the British, Russian and French governments. Representatives of the four powers signed an agreement establishing an international military tribunal before which the major war criminals of the European Axis were to be tried. This agreement was supplemented by a “charter” which serves as the constitution of the tribunal and as the statement of principles governing its operations.
Punishment with Trial
The agreement purports to carry out the intention of the Moscow Declaration; but it is apparent that, by providing trials for the major war-criminals, it goes beyond the declaration.
The tribunal is to consist of four members, one appointed by each of the signatories. The war criminals may be tried for their individual responsibility in the commission of three types of crimes: (1) Crimes against peace. This means the planning, preparation, initiation or waging of a war of aggression, or a war in violation of international agreements. (2) War crimes. This means violations of the laws or customs of war, including ill-treatment of civilian population and prisoners of war. (3) Crimes against humanity. This means the commission of inhumane acts against civilian population before or during the war; and political, racial and religious persecution, whether or not in violation of the domestic law of the country where perpetrated.
The charter of the tribunal also provides that the defense of having acted as head of a state or in obedience to a superior order shall not be considered. The tribunal was given the power to declare groups criminal organizations. After a group was declared criminal, each of the signatory powers could bring members of the proscribed organization to trial before its national or military courts. The right to try a person in absentia was given to the tribunal. Each of the four powers was to appoint a prosecutor. The accused were to be given fair trials; they were to be indicted before trial; they were to have assistance of counsel. But the tribunal was not to be bound by technical rules of evidence; it could take judicial notice of facts of common knowledge. The judgment as to guilt or innocence was to be final. The tribunal might impose any sentence, but the Control Council for Germany might reduce the sentence.
On October 19, 1945, Jackson and the other three prosecutors indicted twenty-four top Nazis. The indictment charged the accused with each of the three crimes defined in the charter and with a conspiracy to commit these crimes. On the basis of this indictment the Nuremberg trial started on November 20, before judges representing the four powers, with Francis Biddle as the American judge.
Are Trials Wise?
Before the charter for the tribunal was promulgated, the question whether or not the major Nazis should be afforded a trial was hotly debated. No one doubted the justice and necessity of the severest penalties; but is a trial necessary or wise as a preliminary measure to the imposition of these penalties?
Professor Max Radin, in The Day of Reckoning, published in 1943, proposed that Hitler and other Nazi chiefs be brought to trial before an international court for the commission of specific crimes, such as the murder of a specifically named person. The same year, in an article in the Harvard Law Review, and a year later in a book, War Criminals—Their Prosecution and Punishment, Professor Sheldon Glueck proposed the procedure which has in essence been followed by the four powers. Glueck urged that the major Nazis be tried for crimes against humanity and for crimes committed by Germans on German territory before and during the war. He contended that though there are no precedents for such a trial, the procedure is unobjectionable. He anticipated and attempted to meet the objections to the Nuremberg indictments. It is likely that Jackson was strongly influenced by Glueck’s arguments and proposals.
On the other hand, George Creel, in War Criminals and Punishment, published in 1944, contended that any proposal to set up an international court for the trial of the major Nazi criminals “should be dismissed summarily.” He urged that there was no need to wait until the end of the war to “judge” Hitler and Goering. “By their published orders, by their own boasts, their guilt stands self-confessed” The major criminals should be branded at once as outlaws, “as fugitives from justice whose execution only waits on capture.”
In a series of articles in the New Leader and in a review of Radin’s book in the Reconstructionist the writer of this article pointed to the dangers in a trial which disregards the fundamental guarantees of fairness to a defendant; nothing must be done which is likely to bring into doubt the validity of these guarantees. If a trial is to be given, then it must be a trial in fact and not merely in name; but such a trial, the writer contended, was not possible for the Nazi chiefs; for in order to bring them before a judicial tribunal, charges must be framed which would reflect non-existent laws, and judges must be found among the heavenly choir of angels.
Thus, before the promulgation of the charter for the international tribunal and the indictment, opinion as to whether or not there should be trials was divided. After the charter and the indictment were made public, the wisdom of the provision for a trial was sharply questioned in many quarters. The editors of Fortune and the Nation, Professor Sidney Hook in the New Leader, and Rustem Vambery, former dean of the University of Budapest Law School, have been among the sharpest critics of the Nuremberg trial. Enthusiastic support of the trial has come from no influential quarter. Why is the Nuremberg trial mistrusted or condemned? I shall attempt to state the chief objections.
To What Good Purpose?
The first question is: Why should there be a trial for the major Nazi criminals? The Moscow Declaration promised punishment, not a trial. Many felt that the proper way to handle these persons was to bring them before an assembly of the heads of all the United Nations and the judges of their highest courts and leading German refugees, where the verdict and sentence of civilized mankind would be read. This procedure would have served as a catharsis for the feelings of all people who had suffered at the hands of the Nazis, and the occasion would have marked a dedication to the ends of peace and justice. The Nuremberg court, with judges whose names are known to only a few persons, like MacArthur’s court with judges who are not known at all, can result only in an anti-climactic close. The trial, contrasted with the enormity of the crimes of which the defendants are guilty, does not touch persons closely, does not impinge on their emotions. One reads of the proceedings with detachment—there is more interest in the controversy over the trial than in the trial itself.
While the trial goes on in Nuremberg, there is a joint Congressional investigation of Pearl Harbor, in which some members of the committee have attempted to show that President Roosevelt had sought deliberately to provoke war with Japan and that the Pearl Harbor attack was the result. This investigation deepens misgivings as to the Nuremberg trial; for even to suggest that the Nazi chiefs’ guilt is an open question is to open the question whether or not we should have entered the war at all. If there was doubt as to their guilt, why did we not resolve that question before committing our lives to their defeat on the battle-front? The lives of more than 250,000 Americans, 5,300,000 Russians, 1,500,000 Chinese, and about 380,000 men of France and the British Commonwealth were sacrificed; it does seem a little late to raise the question of guilt. If the Nazi chiefs are acquitted, then the leaders of the United Nations should be placed in the prisoners’ dock.
But we know there is no chance of an acquittal; the Moscow Declaration convicted them.
Perhaps a trial is needed in order to influence public opinion in Germany? But the correspondent for the New York Times has reported from Frankfort that leaders of German public opinion in the American zone of occupation say that the trial “will produce an unfavorable reaction among the German people.” Anne O’Hare McCormick, writing in the Times from Nuremberg says that nobody among the Germans seems to care much what happens at the trial, or what happens to Goering or Streicher. “The Nuremberg trial is more remote from Nuremberg than it is from New York. Certainly it is more scantily reported in Germany than in the United States. Germany, in fact, is less present at this trial than the victor nations. While the accused represent Germany, Germans as a whole appear curiously uninterested in them.” And also reporting from Nuremberg in the Times Raymond Daniell says that “the Germans are not interested” in the trial. In Frankfort, Daniell writes, “it is very noticeable that in restaurants newspaper readers fold their papers so that they can ignore the unpleasant reminders from Nuremberg. The trial rarely is discussed in conversation.” While some persons question the justice of the trial, most are entirely indifferent.
The purpose of the trial, Jackson has said, is to establish new international law for the future. “The ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness,” he has said, “is to make statesmen responsible to law.” The purpose of the trial is to establish the principle of the personal responsibility of statesmen, generals and industrialists for the wars of their nations. This rationale of the trial leads to a consideration of questions involving the theory of the indictment.
Ex Post Facto Law
The charge of crimes against peace is based on the theory that to begin a war is a violation of international law. Since Germany began the war in violation of the Briand-Kellogg pact and other agreements to which Germany was a party, the heads of the German government are personally responsible for the breach of the treaties and the peace, and are subject to punishment.
The difficulty with this theory is that none of the international agreements or laws speak of personal responsibility or punishment. The agreements mention no sanctions at all, collective or personal.
This count, therefore, is open to the objection that it violates a fundamental right of defendants in criminal cases to be free from the sanctions of an ex post facto law—a law which declares an act criminal which was innocent or not subject to punishment when done.
At the opening of the trial, in their motion to dismiss the indictment, defense attorneys pointed out that never before was it said that the statesmen, generals and economic leaders of a nation might be arraigned before an international court for using force. They reminded the court that only last summer, when the United Nations established a new world organization, no rule of law was promulgated under which in the future an international court could punish persons who had launched an unjust war. England since the Middle Ages, the United States since its birth, France since the Revolution, and the Soviet Union have professed adherence to the principle that punishment is possible only if a law has been violated that was in existence at the time the act was committed and that provided punishment; and the Control Council for Germany recently restored this principle to German law. Let the nations of the world, they argued, create a law for the future but desist from trying men under a murder law created ex post facto.
In his opening statement Jackson attempted to meet this objection. The defendants, he said, cannot bring themselves within the reason of the rule against ex post facto laws, for “they cannot show that they ever relied upon international law in any state or paid it the slightest regard.”
This argument by Jackson means that, since the defendants did not rely on any law when they acted, it does not lie in their mouths now to demand legal rights. According to this argument the trial may deny the defendants not only the protection against ex post facto laws but the protection of any laws at all. It means that the defendants may not argue any legal defense.
This is a very strange doctrine. Though a defendant openly show his disrespect for the legal order of his community, still he is entitled to the full protection of the law—because the community respects the legal order and insists on its vindication. Should a lawless gangster, such as Dillinger, come before the United States Supreme Court with a plea that the law under which he had been sentenced was an ex post facto law, the lawlessness of his life and character would have no place in a consideration of the merits of his plea. The application of legal guarantees is not dependent on the defendant’s state of mind.
Indeed, Jackson’s argument can be turned against the trial as a whole; for, if the lawlessness of the defendants places them outside the pale of law and of fundamental guarantees, why, then, should they be tried at all? Why should not their case be disposed of by the political agencies of the victorious powers without risk to the integrity of civilized judicial process?
New international law can be created without staging a trial which violates a fundamental guarantee like that against ex post facto laws. At the present time an attempt is being made to establish among the twentyone countries of the Western Hemisphere the principle of a collective guarantee to their peoples of their basic freedoms. The Foreign Minister of Uruguay has proposed that when the government of any nation of the Americas denies essential rights to its inhabitants, the other governments take collective action against the offending government. If a substantial number of countries accept the proposal, it will be new international law in the Western Hemisphere. In the same way the United Nations Organization can create new law for the future governance of the world. This is the civilized way to create law. It is to be seriously doubted, however, if the lawless creation of law can in the long run strengthen law, order, justice.
The Double Standard
In their motion to dismiss the indictment, the defense attorneys contended that the judges had all been appointed by states that belonged to one side in the war, and that this, too, was a violation of a generally recognized principle of modem, criminal procedure.
Jackson attempted to meet this contention with the statement that “unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes.” He also said: “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most magnificent tributes that power ever has paid to reason.”
But the judgment of the law of which Jackson spoke is the judgment of four men appointed by the commanders-in-chief of the armies of the four powers; the law under which the defendants are being tried was made to fit the crime after the act had been committed; the law under which the defendants are being tried is not of a universal character, applicable to victor as well as to the vanquished: there is one law for the judge and another for the prisoner in the dock.
For one of the judges at Nuremberg, a general in the Red army, represents a government which was responsible for the invasion of Finland, Esthonia, Lithuania, Latvia, and, simultaneously with the Nazis, Poland. As the Fortune editorial says, “To try a man for aggression when on the bench sits another aggressor is strange.” Is it merely that might makes right, that there is one law for the victor and another for the vanquished? To establish this principle in international relations requires no trial: the principle goes back to the time of the first war between two families or tribes. To establish this principle in international law is to negate all law between nations.
The First Stone
The defendants are charged with crimes against humanity. The charge refers in, part to atrocities committed by the Nazis in Germany itself since 1933. It is based on the theory that if a country’s legal or political system permits abuse of its population, there is a violation of international law and the heads of the state are personally liable.
Here again it appears that there is one law for the victor and another for the vanquished. For according to the theory, if the British imprison thousands of Indian nationalists without trial, strafe villagers from airplanes and impose fines on whole towns, we should bring the Emperor of India and his Viceroy before an international court. If Russia holds some eight million persons in concentration camps, without what we regard as due process of law, we have a right to try Stalin, Molotoff and other Russian chiefs of state in some international court. Obviously Stalin does not admit such right, nor do we claim such right. If Argentina’s government murders its Jewish population, we do not claim the right to try its heads and the chiefs of police and impose punishment on them; instead, for the first time in the history of mankind, an attempt is being made to secure the consent of the countries of the Western Hemisphere to an agreement which will give this right to proceed against an offending country. We are attempting to secure such an agreement for the American countries at the very time that we claim the right to proceed against the heads of the German government without such an agreement.
Our policy with respect to the Nazis is consistent with neither international law nor our own State Department’s policy. If the Nuremberg trial results in the establishment of a precedent in international law, what moral force can it have behind it when its conception was illegal?
The Nazis are charged with crimes against the laws and customs of war. But the theory of such a charge is without a foundation since our use of the atomic bomb which killed 150,000 at Hiroshima and thousands more at Nagasaki. There is no longer a distinction between a clean and an unclean war; to attempt to perpetuate this distinction does small service to international law or the future peace of the world.
Guilt by Association
Jackson is attempting to have the court declare certain German organizations illegal. After such a finding every member of the proscribed organizations would be guilty of the illegal acts charged against the organizations. Thus, an attempt is being made to declare the German high command an illegal organization. The charter of the tribunal permits this development. But does civilized criminal procedure permit it?
The Times has reported that many Germans feel that this procedure is unjust. It is not right, they say, to indict a whole group, like the German Staff, the members of the SS and SA. And it has been reported, too, that American army officials are alarmed. They strongly oppose (as does also the Times) this departure from international law and would like to see it abandoned. Indeed, Great Britain, France and Russia at first opposed Jackson’s attempt to make mere membership in the German general staff criminal, but finally Jackson won out.
But the objections of the American army officials may be generalized to include the whole attempt to make “guilt by association” a principle in international law. As recently as 1943, in the Harry Schneiderman case, in which Wendell Willkie appeared for the Communist leader, our Supreme Court held that the theory of “guilt by association” does not conform to our conception of due process. Under a civilized system of law, guilt is personal and not merely the result of membership in an organization.
The Challenge to Justice
The Nuremberg trial constitutes a real threat to the basic conceptions of justice which it has taken mankind thousands of years to establish. Law is more than power dressed in judicial robes. Law is the only thing that stands between civilization and the jungle. Our scientific discoveries and mechanical inventions, when man is not subject to law, can only make us more beastly creatures. I would sooner see Goering, Hess, Jodl and the other defendants shot summarily ‘or hanged, or even be permitted to live out their lives in a Doom (if these were the only alternatives to the Nuremberg trial—which is not at all the situation) than witness the undermining of the legal structure it took us centuries to build up.
Goering and his colleagues would die in any case in another ten to twenty years. Civilization must go on after them. We have saved civilization from their attack. Their atrocities against civilization, the moral and legal order of mankind, have been ended. We must be on guard now that we ourselves do not weaken our sense of law and our institutions of justice. For if justice is dead, as Kant has said, life is not worth living.
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Will Nuremberg Serve Justice?
Must-Reads from Magazine
With the demise of the filibuster for judicial nominations, the Senate has become a more partisan body. Members of the opposition party no longer have to take difficult votes to confirm presidential nominees, and so they no longer have to moderate their rhetoric to avoid the appearance of hypocrisy. Many expected, therefore, that Brett Kavanaugh’s confirmation hearings would tempt Democrats to engage in theatrics and hyperbole. Few, however, foresaw just how recklessly the Judiciary Committee’s Democratic members would behave.
The sordid performance to which Americans were privy was not the harmless kind that can be chalked up to presidential ambitions. Right from the start, Democratic committee members took a sledgehammer to the foundations of the institution in which they are privileged to serve.
Sen. Cory Booker made national headlines by declaring himself “Spartacus,” but the actions he undertook deserved closer attention than did the scenery he chewed. Booker insisted that it was his deliberate intention to violate longstanding Senate confidentiality rules supposedly in service to transparency. It turns out that the documents Booker tried to release to the public had already been exempted from confidentiality. Booker was adamant, though, that he had undermined the Senate’s integrity. You see, that, not transparency, was his true objective. It was what he believed his constituents wanted from him.
Booker wasn’t alone. Sen. Sheldon Whitehouse appeared to share his colleague’s political instincts. “I want to make it absolutely clear that I do not accept the process,” he said of the committee’s vetting of Kavanaugh’s documents. “Because I do not accept its legitimacy or validity,” Whitehouse added, he did not have to abide by the rules and conventions that governed Senate conduct.
When the committee’s Democratic members were not trying to subvert the Senate’s credibility, they were attempting to impugn Judge Kavanaugh’s character via innuendo or outright fabrications.
Sen. Kamala Harris managed to secure a rare rebuke from the fact-checking institution PolitiFact, which is charitably inclined toward Democratic claims. “Kavanaugh chooses his words very carefully, and this is a dog whistle for going after birth control,” read her comments on Twitter accompanying an 11-second clip in which Kavanaugh characterized certain forms of birth control as “abortion-inducing drugs.” “Make no mistake,” Harris wrote, “this is about punishing women.” But the senator had failed to include mitigating context in that clip, which would have made it clear that Kavanaugh was simply restating the arguments made by the plaintiffs in the case in question.
Later, Harris probed Kavanaugh as to whether he believed the Chinese Exclusion Act of 1882, which has never been explicitly ruled unconstitutional, was wrongly upheld by the Supreme Court. Despite calling the decisions of this period “discriminatory,” Kavanaugh declined to elaborate on a case that could theoretically come before the Supreme Court. This, the judge’s detractors insisted, was “alarming” and perhaps evidence of latent racial hostility. In fact, it was an unremarkable example of how Supreme Court nominees tend to avoid offering “forecasts” of how they will decide cases without having heard the arguments—a routine deemed “the Ginsburg Rule” after Ruth Bader, who perfected the practice.
Over a week later, Harris had still not explained what she was getting at. But she doesn’t have to. The vagueness of her claim was designed to allow Kavanaugh’s opponents’ imaginations to run wild, leading them to draw the worst possible conclusions about this likely Supreme Court justice and to conclude that the process by which he was confirmed was a sham.
Harris may not have been alone in appealing to this shameful tactic. On Thursday, Sen. Dianne Feinstein shocked observers when she released a cryptic statement revealing that she had “referred” to “federal investigative authorities” a letter involving Kavanaugh’s conduct. It’s human nature to arrive at the worst imaginable conclusion as to what these unstated claims might be, and that’s precisely what Kavanaugh’s opponents did. It turned out that the 35-year-old accusations involve an anonymous woman who was allegedly cornered in a bedroom by Kavanaugh and a friend during a high-school party. Kavanaugh, the letter alleged, put a hand over her mouth, but the woman removed herself from the situation before anything else occurred. All were minors at the time of this alleged episode, and Kavanaugh denies the allegations.
Some thought it was odd for Feinstein to refer these potentially serious allegations to the FBI this week and in such a public fashion when the allegations contained in a letter were known to Democrats for months. The letter was, after all, obtained by Democratic Rep. Anna Eshoo in July. But it doesn’t seem confusing when considering the facts that the FBI all but dismissed the referral off-hand and reporting on the episode lacks any corroboration to substantiate the claims made by the alleged victim here. It is hard not to conclude that this is an attempt to affix an asterisk to Brett Kavanaugh’s name. Democrats will not only claim that this confirmation process was tainted but may now contend that Kavanaugh cannot be an impartial arbitrator—not with unresolved clouds of suspicion involving sexual assault hanging over his head.
Ultimately, as public polling suggests, the Democratic Party’s effort to tarnish Kavanaugh’s reputation through insinuation and theatrics has had the intended effect. Support for this nominee now falls squarely along party lines. But the collateral damage Senate Democrats have done to America’s governing institutions amid this scorched-earth campaign could have lasting and terrible consequences for the country.
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While the nation’s attention is focused on the Carolina coast, something very odd is happening across the country in Sunspot, New Mexico.
Sunspot is hardly a town at all–the nearest stores are 18 miles away. It’s actually a solar observatory 9,200 feet up in the Sacramento Mountains. It is open to the public and has a visitor’s center, but don’t visit it right now. On September 6th, the FBI moved in and evacuated all personnel using Black Hawk helicopters. Local police were told to stay away. The only explanation being given by the FBI is that an unresolved “security issue” is the cause of the evacuation.
The sun is the only astronomical body capable of doing major damage to planet earth without actually hitting us. A coronal mass ejection aimed at the earth could have a devastating impact on satellites, radio transmission, and the electrical grid, possibly causing massive power outages that could last for weeks, even months. (It would also produce spectacular auroras. During the Carrington Event of 1859, the northern lights were seen as far south as the Caribbean and people in New England could read newspapers by the light.)
So, there are very practical, not just intellectual reasons, to know what the sun is up to. But the National Solar Observatory right now is a ghost town, and no one will say why. Such a story should be catnip for journalists.
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It's not paranoia if they're really out to get you.
Americans awoke Thursday morning to a familiar noise: The president of the United States waxing conspiratorial and declaring himself the victim of a nefarious plot.
“3,000 people did not die in the two hurricanes that hit Puerto Rico,” Donald Trump declared on Twitter. He insisted that the loss of life in the immediate aftermath of 2017’s Hurricane Maria topped out in the low double-digits and ballooned into the thousands well after the fact because of faulty accounting. The president did not claim that this misleading figure was attributable to flaws in the studies conducted in the aftermath of last year’s disaster by institutions like George Washington University or the New England Journal of Medicine but to a deliberate misinformation campaign orchestrated by his political opponents. “This was done by the Democrats in order to make me look as bad as possible,” Trump insisted.
If, for some mysterious reason, Trump wanted to attack the validity of these studies, he might have questioned the assumptions and biases that even their authors admit had an unavoidable effect on their confidence intervals. But Trump’s interest is not in accuracy. His desire is to shield himself from blame and to project his administration’s failings—even those as debatable as the disaster that afflicted Puerto Rico for the better part of a year—onto others. The president’s self-consciousness is so transparent at this point that even his defenders in Congress have begun directly confronting the insecurities that fuel these tweets.
Donald Trump has rarely encountered a conspiracy theory he declined to legitimize, and this tendency did not abate when he won the presidency. From his repeated assertions that Moscow’s intervention in the 2016 election was a “hoax,” to the idea that the FBI shielded Hillary Clinton from due scrutiny, to the baseless notion that “millions and millions” of illegal-immigrant voters deprived him of a popular vote victory, all of this alleged sedition has a common theme: Trump is the injured party.
The oddest thing about all this is that these are the golden days. Trump-era Republicans will look back on this as the halcyon period in which all of Washington’s doors were open to them. The president’s ostensible allies control every chamber of government. The power his adversaries command is of the soft sort—cultural and moral authority—but not the kind of legal power that could prevent Trump and Republicans from realizing their agenda. That could be about to change.
The signs that a backlash to unified Republican rule in Washington was brewing have been obvious almost since the moment Trump took the oath of office. Democrats have consistently overperformed in special and off-year elections, their candidates have outraised the GOP, and a near-record number of Republicans opted to retire rather than face reelection in 2018. The Democratic Party’s performance in the generic ballot test has outpaced the GOP for well over a year, sometimes by double-digits, leading many to speculate that Democrats are well positioned to retake control of the House of Representatives. Now, despite the opposition party’s structural disadvantages, some are even beginning to entertain the prospect of a Democratic takeover in the Senate.
Until this point, the Trump administration has faced no real adversity. Sure, the administration’s executive overreach has been rejected in the courts and occasionally public outcry has forced the White House to abandon ill-considered initiatives, but it’s always been able to rely on the GOP majorities in Congress to shield it from the worst consequences of its actions. That phase of the Trump presidency could be over by January. For the first time, this president could have to contend with at least one truly adversarial chamber of the legislature, and opposition will manifest first in the form of investigations.
How will the White House respond when House Oversight and Reform Committee Chairman Elijah Cummings is tasked with investigating the president’s response to a natural disaster or when he subpoenas the president’s personal records? How will Trump respond when Judiciary Committee Chair Jerrold Nadler is overseeing the investigation into the FBI’s response to Russia’s meddling in the 2016 election, not Bob Goodlatte? Will the Department of Homeland Security’s border policies withstand public scrutiny when it’s Mississippi’s Bennie Thompson, not Texas’s Michael McCaul, doing the scrutinizing? How will Wall Street react to a Washington where financial-services oversight is no longer led by Jeb Hensarling but Maxine Waters? If the Democrats take the House, the legislative phase of the Trump era be over, but the investigative phase will have only just begun.
In many ways, this presidency behaved as though it were operating in a bunker from day one, and not without reason. Trump had every reason to fear that the culture of Washington and even many of the members of his own party were secretly aligned against him, but the key word there is “secret.” The secret is about to be out. The Trump White House hasn’t yet faced a truly adversarial Washington institution with teeth, but it is about to. If you think you’ve seen a bunker mentality in this White House, you haven’t seen anything yet.
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Podcast: Google and Kavanaugh.
Will Google survive the revelations of its political bias, or are those revelations nothing new? We delve into the complexities of the world in which important tech companies think they are above politics until they decide they’re not. Also some stuff on the Supreme Court and on polls. Give a listen.
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Smeared for doing the job.
When then-presidential candidate Donald Trump famously declared his intention to be a “neutral” arbiter of the conflict between Israel and the Palestinian territories and put the onus for resolving the conflict on Jerusalem, few observers could have predicted that Trump would run one of the most pro-Israel administrations in American history.
This year, the Trump administration began relocating the U.S. embassy in Israel to the nation’s capital city, fulfilling a promise that began in 1995 with the passage of a law mandating this precise course of action. The administration also declined to blame Israel for defending its Gaza border against a Hamas-led attack. Last week, the administration shuttered the PLO’s offices in Washington.
The Trump administration’s commitment to shedding the contradictions and moral equivalencies that have plagued past administrations has exposed anti-Zionism for what its critics so often alleged it to be.
This week, Department of Education Assistant Secretary of Education for Civil Rights Kenneth Marcus announced his intention to vacate an Obama-era decision that dismissed an alleged act of anti-Semitism at Rutgers University. Marcus’s decision to reopen that particularly deserving case has led the New York Times to publish an article by Erica L. Green full of misconceptions, myths, and dissimulations about the nature of the anti-Israel groups in question and the essential characteristics of anti-Semitism itself.
In reporting on Marcus’s move, Green declared the education activist and opponent of the Boycott, Divestment, and Sanctions (BDS) movement a “longtime opponent of Palestinian rights causes,” a designation the paper’s editor felt fine printing without any substantiating evidence. You could be forgiven for thinking that BDS itself constituted a cause of “Palestinian rights” and not an international effort to stigmatize and harm both Israel and its supporters. If you kept reading beyond that second paragraph, your suspicions were confirmed.
Green contended that Marcus’s decision has paved the way for the Education Department to adopt a “hotly contested definition of anti-Semitism” that includes: denying Jews “the right to self-determination,” claiming that the state of Israel is a “racist endeavor,” and applying a double standard to Israel not “expected or demanded of any other democratic nation.” As Jerusalem Post reporter and COMMENTARY contributor Lahav Harkov observed, this allegedly “hotly contested definition” is precisely the same definition used by the International Holocaust Remembrance Alliance. In 2010, the IHRA’s working definition was adopted almost in total by Barack Obama’s State Department.
Green went so far as to say that this not-so-new definition for anti-Semitism has, according to Arab-American activists, declared “the Palestinian cause anti-Semitic.” So that is the Palestinian cause? Denying Jews the right to self-determination, calling the state of Israel itself a racist enterprise, and holding it to nakedly biased double standards? So much for the two-state solution.
Perhaps the biggest tell in the Times piece was its reporters’ inability to distinguish between pro-Palestinian activism and anti-Israeli agitation. The complaint the Education Department is preparing to reinvestigate involves a 2011 incident in which an event hosted by the group Belief Awareness Knowledge and Action (BAKA) allegedly imposed an admissions fee on Jewish and pro-Israel activists after unexpected numbers arrived to protest the event. An internal email confirmed that the group only charged this fee because “150 Zionists” “just showed up,” but the Obama administration dismissed the claim, saying that the organization’s excuse—that it expected heftier university fees following greater-than-expected attendance—was innocuous enough.
Green did not dwell on the group, which allegedly discriminated against Jews and pro-Israeli activists. If she had, she’d have reported that, just a few weeks before this incident, BAKA staged another event on Rutgers’s campus—a fundraiser for the organization USTOGAZA, which provided aid to the campaign of “flotillas” challenging an Israeli blockade of Gaza. USTOGAZA’s links to the Turkey-based organization Insani Yardim Vakfi (IHH), which has long been associated with support for Hamas-led terrorist activities, rendered the money raised in this event legally suspect. Eventually, as Brooke Goldstein wrote for COMMENTARY, even BAKA conceded the point:
After community members demanded that Rutgers, a state-funded university, hold an investigation before handing over any money to USTOGAZA, the school responded by offering to keep the money raised in an escrow account until a suitable recipient could be found. In June 2011, BAKA sent out an e-mail admitting the University had, after “much deliberation” and despite their initial approval, “decided that they are not willing to release the funds to the US to Gaza effort” due to concerns of being found liable for violating the material-support statutes.
Rutgers prudently limited BAKA’s ability to participate in on-campus events after these incidents, but the organization that took their place—Students for Justice in Palestine (SJP)—is no better. The Times quoted officials with the Center for Law and Justice who praised Marcus’s move and cited SJP as a source of particular consternation, but the reporters did not delve into the group’s activities. If they had, they’d find that the organization’s activities—among them declaring that “Zionists are racists,” supporting anti-Zionist individuals despite credible accusations of child abuse, and endorsing Hamas’s governing platform, which labels the entire state of Israel “occupied territory”—fits any cogent definition of anti-Semitism. This is to say nothing of the abuse and harassment that American Jews experience on college campuses that play host to SJP’s regular “Israel apartheid weeks.”
Some might attribute the Times’ neutral portrayal of groups that tacitly support violence and people like Omar Barghouti—an activist who “will never accept a Jewish state in Palestine” and has explicitly endorsed “armed resistance” against Jews, who he insists are “not a people”—to ignorance, as though that would neutralize the harm this dispatch might cause. But the Times piece has emboldened those who see Israel’s Jewish character as a threat both to its political culture and our own. That worrying sentiment was succinctly expressed by New York Magazine’s Eric Levitz: “You don’t have to be a staunch supporter of the Palestinian cause to question Israel’s right to exist as a Jewish state.”
The benefit of the doubt only extends so far. Even the charitably inclined should have discovered its limits by now.