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Taking Tea with the Taliban
Declassified State Department documents tell a sorry tale of diplomatic engagement for its own sake—and offer a cautionary lesson for…
Addressing the nation on December 1, 2009, President Barack Obama laid out the case for an augmented American presence in Afghanistan to battle the Taliban forces seeking to push their way back into power. "Over the last several years, the Taliban has maintained common cause with al-Qaeda, as they both seek an overthrow of the Afghan government," he declared. The president offered a brief account of the Taliban's rise to power before the U.S. tossed them out in November 2001. "Al-Qaeda's base of operations was in Afghanistan," he said, "where they were harbored by the Taliban—a ruthless, repressive, and radical movement that seized control of that country after it was ravaged by years of Soviet occupation and civil war, and after the attention of America and our friends had turned elsewhere."
This has become the standard history of the American role in Afghanistan in the 1990s, and it is certainly true that in the first few years after the 1989 Soviet withdrawal from Afghanistan, Washington's attention drifted. The first President Bush allowed his one term in office to end without ensuring that the United States had a working embassy in Kabul. His envoy to the Afghan resistance, Peter Tomsen, was based in Washington, and Bill Clinton, when he came into office in 1993, never appointed a successor.
But events did not allow the Clinton administration to ignore Afghanistan for long—and here is where the true story of the American role there in the 1990s diverges from the standard history. In 1994 the Taliban, originally a group of seminary students reacting against the lawlessness and abuses of Afghan warlords, seized the province of Kandahar. In 1996 they took Kabul, and by 1998 they were in control of 90 percent of Afghanistan and had launched a reign of terror on women and ethnic minorities, forbidding the schooling of girls and banning television and music.
And in 1995 the Clinton administration began a policy of attempting to engage the Taliban. The story of this effort has never been told in full. I first became aware of U.S. engagement with the Taliban during a stint as an intern at the U.S. Embassy in Tajikistan in 1997. Declassified State Department cables now show that efforts at engagement began just three months after the group emerged in Kandahar in 1994 and well over a year before it took Kabul. The story the documents tell is one of engagement for its own sake—without any consideration given to the behavior or sincerity of an unambiguously hostile interlocutor.
On February 13, 1995, U.S. diplomats stationed in Pakistan traveled to Kandahar to meet with seven senior Taliban officials. The meeting was largely informational. The Taliban's rise had taken the world by surprise, and diplomats and intelligence agencies scrambled to determine who the Taliban were and what they wanted. The Taliban were willing to talk but not say much. While American diplomats observed that the group "appeared well–disposed toward the United States," the Taliban representatives did not answer questions about their leadership and intentions. Later the same week, another U.S. diplomat met a Taliban "insider" who told the official what he wanted to hear: the Taliban liked the United States, had no objection to elections in Afghanistan, and were suspicious of both Saudi and Pakistani intentions. This was nonsense, but it was manna for American diplomats who wanted to believe that engagement was possible.
As the dialogue with the Taliban continued into 1996, it became clear to American officials that the Taliban wished to improve their image, which had been sullied by atrocities they had committed against prisoners and by the medieval restrictions they were imposing on women (mere harbingers, it would turn out, of the horrors that followed when they took control of the country in 1998). Thomas W. Simons, then the U.S. ambassador to Pakistan and a career foreign-service officer, seized on this to justify further engagement. "Their concern about their image," he wrote, "and request that A/S [Assistant Secretary Robin] Raphel 'tell President Clinton and the West that we are not bad people,' demonstrated a growing awareness, previously absent, of their own limitations—which may be the modality through which they can be coaxed, over time, to the negotiating table."
As Simons sought to engage the Taliban, Timothy Carney, another career diplomat who was serving as ambassador to Sudan, was lobbying the Sudanese government to expel Osama bin Laden, who was already wanted for attacks in Yemen and Egypt. Bin Laden quickly relocated to the eastern Afghan city of Jalalabad. There he was embraced by the Taliban. Indeed, even before the Taliban took Kabul in 1996, a political officer from the U.S. Embassy in Pakistan met with the Taliban's deputy foreign-affairs adviser to urge the group to cease sheltering Bin Laden.
Any inclination the Taliban might have had to take U.S. demands seriously was undercut nine days later when, immediately after the fall of Kabul, Secretary of State Warren Christopher instructed U.S. diplomats in Pakistan to let the Taliban know that "we wish to engage the new 'interim government' at an early stage." He asked the embassy to let the new regime know that U.S. diplomats "would like to make frequent trips to Kabul to stay in contact with your government." Foreign-service officers in Pakistan embraced this directive. Pakistan clearly supported the Taliban, so working with the Taliban would at minimum allow the embassy to avoid antagonizing its host.
Simons arranged a meeting with Taliban acting Foreign Minister Mullah Ghaus to discuss the fact that terrorists were receiving safe haven in Taliban-controlled territory. It was not a productive session. Ghaus denied the presence of any terrorists on Afghan soil but suggested that the Taliban could be more helpful if they received U.S. funding. Less than a month later, Simons's deputy John Holzman met with Ghaus to repeat U.S. demands about Bin Laden, which Ghaus dismissed.
Despite this record of failure, when Madeleine Albright succeeded Christopher as secretary of state in January 1997, efforts to engage the Taliban gathered steam. Enthusiasm for dialogue, especially among U.S. diplomats based in Pakistan, supplanted any introspection about its wisdom. Simply sitting down for tea with a diplomat fulfilled the Taliban's major needs before bargaining ever began. Engagement ironically removed any incentive the Taliban had to cease sponsoring terror or mitigate human-rights abuses.
Diplomats met Taliban representatives every few weeks. There was no effort to limit U.S. outreach to junior officials. Robin Raphel traveled repeatedly to the region to meet Taliban representatives. What resulted was theater: the Taliban would stonewall on terrorism but would also dangle just enough hope to keep diplomats calling and forestall punitive strategies. It was not hard for the Taliban to string diplomats along. On January 16, 1997, Holzman suggested that the Taliban allow a U.S. team to visit the sites of terrorist camps to confirm the alleged cessation of activity therein. Wakil Ahmed, a political adviser to Taliban leader Mullah Omar, agreed at first; but over subsequent weeks, he offered a litany of excuses to delay the visit—the Ramadan fast, winter snows, and scheduling difficulties. Eventually the offer was rescinded altogether.
Once again, the State Department walked away empty-handed, while the Taliban had secured for themselves a four-month reprieve from pressure at the very moment that al-Qaeda was using its Afghanistan base to plot attacks on the U.S. embassies in Kenya and Tanzania. Making the State Department's proposal for on-site inspection more ludicrous was the simple fact that satellite monitoring could give the United States a more accurate picture of the goings-on than a guided tour of sanitized camps.
Despite the failure of the Holzman initiative, there was little debate about the wisdom of accepting a Taliban offer to receive a senior State Department delegation inside Afghanistan. On March 2 and 3, 1997, a team of U.S. officials visited Kabul and Kandahar. Donald Camp, the deputy director of the State Department's South Asia / Pakistan, Afghanistan, and Bangladesh unit, again asked the Taliban to expel Bin Laden. The group demurred. Mullah Ehsanullah Ehsan, an influential member of the Taliban's governing council, dismissed U.S. demands, saying that Bin Laden had been "invited to Afghanistan by the enemies of the Taliban," but that the Taliban could not sanction his expulsion. To do so would violate Afghan culture. By saying this, the Taliban demonstrated their sophisticated understanding of American diplomatic mores, for when American diplomats face a conflict between national security and cultural relativism, they usually defer to the latter.
Camp, who was subsequently promoted to handle South Asian affairs on Clinton's National Security Council, concluded that the Taliban's refusal to budge on Bin Laden justified further engagement. Camp's conviction should not surprise: once the State Department leadership had settled on engagement as a strategy, it was all but given that diplomats would validate it without letting the evidence of purposelessness and failure interfere.
Thus, the State Department's "Afghan Coordination Group" ran through the list of problems with Taliban rule—everything from sheltering Bin Laden to human rights—and even so, recommended that Washington pursue a strategy of "restrained engagement." As Holzman explained in a memo, "Not to engage the Taliban would be a mistake because such a policy will most likely leave them only more isolated, possibly more dangerous, and certainly more susceptible to those wishing to direct Taliban energies beyond Afghanistan."
Fear of inducing isolation, however, did not play a role when it came to U.S. policy toward the Northern Alliance, the group of one-time Afghan rebels and chieftains that constituted the only serious resistance to the Taliban. Most countries refused to recognize the Taliban and maintained relations with the Northern Alliance. In August 1997, a fistfight broke out between the chargé d'affaires at Afghanistan's embassy in Washington, who represented the Northern Alliance, and a more junior diplomat who pledged loyalty to the Taliban. The State Department responded by closing the embassy, sending all diplomats packing.
How did the State Department envision engagement with the Taliban? Holzman suggested testing the group's intentions by accepting their offer to fund crop-substitution programs (for the purpose of halting the heroin trade) and financing the girls' schools that the Taliban said they would tolerate but did not have the capacity to fund. Such an approach was preposterous, and not even just in retrospect. Money is fungible. Any support to the Taliban would not only reward poor behavior but also raise the capacity of the regime to support terror. Holzman further suggested that Washington encourage "moderate Islamic states such as Saudi Arabia, Egypt, and perhaps Indonesia" to engage the Taliban bilaterally. That the State Department considered Saudi Arabia, a prime enabler of al-Qaeda, to be a moderating influence demonstrates just how far afield it had strayed from sensible policy. At the same time, the State Department's Pakistan unit wanted to remain the point group for the initiative and insisted that all engagement be conducted through the U.S. mission in Pakistan. Because the Taliban, at this point, controlled all of Afghanistan's border posts with Pakistan, this left the Northern Alliance further isolated. Repeated Northern Alliance appeals to U.S. diplomats in Tajikistan, a country that did share a border with those parts of Afghanistan under the Northern Alliance, went unheeded.
Other factors also drove engagement. On April 17, 1998, Bill Richardson, Clinton's ambassador to the United Nations, became the highest-ranking American to visit Afghanistan in 20 years. He credited himself with winning a cease-fire in the civil war between the Taliban and the Northern Alliance. There followed some of the most intense fighting of the civil war. The standoff between the Taliban and the Northern Alliance would continue until the U.S. invasion of Afghanistan.
The Clinton administration also welcomed Taliban delegations to the United States. The California-based oil company UNOCAL brought Taliban officials to the United States to meet Assistant Secretary of State Karl Inderfurth. They broke no new ground: the Taliban defended their treatment of women as being in conformity with Afghan custom. Inderfurth delegated discussion of Bin Laden to a subordinate. Amir Khan Mottaqi, the Taliban's acting minister of Islam and culture, deflected the issue as the Taliban had in all previous meetings but promised that they would "keep their commitment and not allow terrorists to use Afghanistan as a base for terrorism." Ahmad Jan, the acting Taliban minister of mines and industry, added that they had also muzzled Bin Laden, an assertion that went unchallenged despite the fact that Bin Laden had sat for an interview with CNN during the previous year.
The Taliban made a hash of both its assurances. It allowed ABC News to interview Bin Laden on May 28, 1998. Ten weeks later, on August 7, 1998, suicide truck bombers attacked U.S. embassies in Kenya and Tanzania, killing more than 200 people and wounding more than 4,000. Thirteen days after that, Clinton ordered a cruise-missile strike on a factory in Sudan and a terrorist training camp in Afghanistan. Any notion that engagement had convinced the Taliban to cease support for terrorism should have evaporated. It didn't.
The missile strike outraged Mullah Omar. He telephoned Michael Malinkowski, the director of the Pakistan-Afghanistan-Bangladesh bureau at the State Department, denied that Bin Laden had planned terrorism while on Afghan soil, and reiterated that he was "open to dialogue." Malinkowski duly reported that the Taliban were interested in further dialogue, even as he acknowledged that "this is a long way, however, from the Taliban doing the right thing on Bin Laden."
In subsequent months, the Taliban shifted strategy. Rather than stonewall on Bin Laden, they simply told U.S. diplomats what Washington wanted to hear. The good cop was usually Abdul Hakim Mujahid, the Taliban's envoy to the United Nations. In a September 13 meeting in Islamabad, he told Alan Eastham, a senior diplomat at the U.S. Embassy there, that "very few Afghans are in favor of Bin Laden's presence in Afghanistan," and that "eighty percent of the Taliban leadership opposes his presence." (Mujahid also assured the State Department that the Taliban would protect the famous Buddha statues in Bamiyan, which they subsequently and horrifyingly destroyed.)
The bad cop was Mullah Omar, who, less than two weeks later, faxed a letter to the State Department blasting the U.S. fixation on Bin Laden. "If you have objections to our policy or our deeds, or if you call it un-Islamic, that is not right," Mullah Omar wrote. "All Muslims of the world agree this is Islamic, but if you still believe that it is not Islamic, then we can try to convince you [i.e., we can have a dialogue]. Our advice is change your policy." Omar's fax was enough to convince the secretary of state: only three months after the most horrific terrorist attacks on American interests since the 1983 Marine barracks bombing, Albright agreed "to engage in a serious and confidential dialogue with the Taliban through the U.S. Embassy in Islamabad."
On October 11, 1998, William B. Milam, the U.S. ambassador to Pakistan, met Maulawi Wakil Ahmed, the Taliban foreign minister. Wakil Ahmed repeated the canard that popular sentiment in his country would not allow the Taliban to expel Bin Laden, despite the carnage in Kenya and Tanzania. Nonetheless, the State Department found promise in the discussion, even though a face-to-face meeting with Americans served only to reinforce the Taliban gang's pretensions as a government rather than as an umbrella group for terrorists. Milam found a silver lining in the fact that Wakil Ahmed described Bin Laden as "a serious problem."
"Now is the time to notch up the diplomatic—-repeat—diplomatic pressure," Milam wrote. "A political / diplomatic solution to Bin Laden's expulsion from Afghanistan may be a mite more possible now."
The State Department's strategy rested on "persuading" the Taliban to expel Bin Laden, and so the Clinton administration agreed to provide the Taliban with evidence of Bin Laden's culpability. Unfortunately for the State Department's hope that it was dealing with a minimally honest partner, on November 20, 1998, a Taliban court found Bin Laden not guilty of involvement in the East Africa bombings.
Nevertheless, eight days later, Eastham, then the top U.S. diplomat in Pakistan, visited the Taliban's ambassador to meet Wakil Ahmed. "While it is possible that the Taliban are simply playing for time in seeking to reinvigorate the diplomatic track," Eastham wrote, "it is at least possible that they—some of them—are serious about finding a peaceful way out." Eastham and Wakil Ahmed met again the following month, but the Taliban only dug in their heels on Bin Laden. Before long, the Taliban were again giving Bin Laden unfettered access to the media.
Even as the cultivation of the Taliban garden refused to yield even a hint of a green shoot, area experts and former government officials—many of whom were familiar with State Department efforts—actively promoted engagement in their writings and interviews. They encouraged the Clinton administration to differentiate al-Qaeda from the Taliban and equated nuance with sophistication. Rather than see terrorism and terror sponsorship as a black-and-white issue, they urged the White House to see shades of gray. Twice in 1999, for example, in high-profile opinion pieces, Milt Bearden, the former CIA station chief in Pakistan, urged the U.S. government to engage the Taliban. In an August 13 New York Times op-ed, for example, he assured the world that the Taliban were as "eager to rid themselves of their bin Laden problem as we are to bring him to justice."
The fiction that the Taliban and al-Qaeda were functionally different should have ended on Christmas Eve 1999, when five Pakistani nationals hijacked an Indian Airlines flight and diverted it to Afghanistan. After the plane landed in Kandahar, the Taliban resupplied the hijackers with weaponry. Nevertheless, in the wake of the hijacking, Inderfurth met senior Taliban officials and opened the session "by emphasizing the importance of continued dialogue, despite differences." The Taliban, however, continued to stonewall.
By this point, the U.S. presidential campaign had begun in earnest, and as rogue regimes often do in election years, the Taliban simply hunkered down and awaited a new U.S. administration. Often, new presidents blame their predecessors rather than America's adversaries for diplomacy's failure. In this case, however, the Taliban would be disappointed. Soon after George W. Bush took office, Taliban Foreign Minister Abdul Wakil Muttawakil sent Secretary of State Colin Powell a letter seeking to restart talks. The answer must have come as a disappointment. The new State Department informed Abdul Hakim Mujahed that the group should close its office in New York.
As this account demonstrates, Obama's statement that the United States ignored Afghanistan until 9/11 is incorrect. In point of fact, the Clinton administration pursued the Taliban with fervor. Over the course of its five-year engagement, however, the Clinton State Department gained nothing. The Taliban had, like many rogue regimes, acted in bad faith. They engaged not to compromise but to buy time. They made many promises but did not keep a single one. The Taliban refused to isolate, let alone expel, Bin Laden, and al–Qaeda metastasized. They exploited American naiveté and sincerity at the ultimate cost of several thousand lives. The report by the 9/11 Commission details how Bin Laden and his deputy, Khalid Sheikh Mohammed, hatched the 9/11 plot at a meeting in Tora Bora at a time when U.S. engagement with the Taliban was in full swing.
Obviously, an honest exchange of views between nations is the vital core of foreign relations. But absent any effort to measure its success, through concrete steps taken by the other party that demonstrate sincerity, engagement too often becomes a policy conducted for its own sake rather than for the furtherance of the national interest. In the case of the Taliban engagement, the State Department fell prey to clientitis, the great occupational hazard of diplomacy—the condition that befalls diplomats who confuse their own attempts to achieve a smooth relationship with their host governments for their actual purpose, which is to secure and advance the interests of the United States. It was fantasy to believe that on issues of radical Islam and Afghanistan's governance, U.S. and Pakistani interests could have converged.
The desire to engage meant that more-robust strategies that might have proved more effective and, with the benefit of hindsight, less costly were never attempted. Clinton called off CIA proposals to assassinate Bin Laden. His administration's ineffective 1998 cruise-missile strike following the East Africa bombings, which seems only to have emboldened Bin Laden and al-Qaeda, allows us to consider what might have been had a targeted military strike been attempted under other circumstances. That the Taliban were hosting terrorist training camps on Afghan soil was no secret in the years before al-Qaeda attacked the U.S. Embassies in 1998; indeed, the matter was raised repeatedly during the diplomats' tea with the Taliban. Had Clinton attempted to preempt Bin Laden's evil rather than make a symbolic strike after the fact, which al-Qaeda had sensibly anticipated, the United States might have dealt a crushing blow to Bin Laden and simultaneously forced the Taliban leaders to reconsider the wisdom of their subterfuge.
Obama's willingness to accept the conventional history—we lost Afghanistan because we ignored Afghanistan—is reason for grave concern. The story of Afghanistan in the 1990s is a story of the limits of diplomacy for its own sake. And diplomacy for its own sake is a cornerstone, perhaps the cornerstone, of Obama's foreign policy. And specifically in Afghanistan, he is already signaling a readiness to repeat the mistakes of engagement with the very extremists whose behavior made possible the attacks of 9/11 and who have returned to torment Afghanistan
During his December 1, 2009, address, Obama declared, "We will support efforts by the Afghan government to open the door to those Taliban who abandon violence and respect the human rights of their fellow citizens." His chief Afghanistan envoy, Richard Holbrooke, has handpicked a team that includes, among others, Robin Raphel, an architect of pre-9/11 efforts to engage the Taliban. Thus the mistakes of the past may be repeated, with potentially dire consequences, in the very near future.
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Taking Tea with the Taliban
Must-Reads from Magazine
The Terrible American Turn Toward Illiberalism
Can it be reversed?
Writing in these pages last year ("Illiberalism: The Worldwide Crisis," July/August 2016), I described this surge of intemperate politics as a global phenomenon, a crisis of illiberalism stretching from France to the Philippines and from South Africa to Greece. Donald Trump and Bernie Sanders, I argued, were articulating American versions of this growing challenge to liberalism. By "liberalism," I was referring not to the left or center-left but to the philosophy of individual rights, free enterprise, checks and balances, and cultural pluralism that forms the common ground of politics across the West.
Less a systematic ideology than a posture or sensibility, the new illiberalism nevertheless has certain core planks. Chief among these are a conspiratorial account of world events; hostility to free trade and finance capital; opposition to immigration that goes beyond reasonable restrictions and bleeds into virulent nativism; impatience with norms and procedural niceties; a tendency toward populist leader-worship; and skepticism toward international treaties and institutions, such as NATO, that provide the scaffolding for the U.S.-led postwar order.
The new illiberals, I pointed out, all tend to admire established authoritarians to varying degrees. Trump, along with France's Marine Le Pen and many others, looks to Vladimir Putin. For Sanders, it was Hugo Chavez's Venezuela, where, the Vermont socialist said in 2011, "the American dream is more apt to be realized." Even so, I argued, the crisis of illiberalism traces mainly to discontents internal to liberal democracies.
Trump's election and his first eight months in office have confirmed the thrust of my predictions, if not all of the policy details. On the policy front, the new president has proved too undisciplined, his efforts too wild and haphazard, to reorient the U.S. government away from postwar liberal order.
The courts blunted the "Muslim ban." The Trump administration has reaffirmed Washington's commitment to defend treaty partners in Europe and East Asia. Trumpian grumbling about allies not paying their fair share—a fair point in Europe's case, by the way—has amounted to just that. The president did pull the U.S. out of the Trans-Pacific Partnership, but even the ultra-establishmentarian Hillary Clinton went from supporting to opposing the pact once she figured out which way the Democratic winds were blowing. The North American Free Trade Agreement, which came into being nearly a quarter-century ago, does look shaky at the moment, but there is no reason to think that it won't survive in some modified form.
Yet on the cultural front, the crisis of illiberalism continues to rage. If anything, it has intensified, as attested by the events surrounding the protest over a Robert E. Lee statue in Charlottesville, Virginia. The president refused to condemn unequivocally white nationalists who marched with swastikas and chanted "Jews will not replace us." Trump even suggested there were "very fine people" among them, thus winking at the so-called alt-right as he had during the campaign. In the days that followed, much of the left rallied behind so-called antifa ("anti-fascist") militants who make no secret of their allegiance to violent totalitarian ideologies at the other end of the political spectrum.
Disorder is the new American normal, then. Questions that appeared to have been settled—about the connection between economic and political liberty, the perils of conspiracism and romantic politics, America's unique role on the world stage, and so on—are unsettled once more. Serious people wonder out loud whether liberal democracy is worth maintaining at all, with many of them concluding that it is not. The return of ideas that for good reason were buried in the last century threatens the decent political order that has made the U.S. an exceptionally free and prosperous civilization.F or many leftists, America's commitment to liberty and equality before the law has always masked despotism and exploitation. This view long predated Trump's rise, and if they didn't subscribe to it themselves, too often mainstream Democrats and progressives treated its proponents—the likes of Noam Chomsky and Howard Zinn—as beloved and respectable, if slightly eccentric, relatives.
This cynical vision of the free society (as a conspiracy against the dispossessed) was a mainstay of Cold War–era debates about the relative merits of Western democracy and Communism. Soviet apologists insisted that Communist states couldn't be expected to uphold "merely" formal rights when they had set out to shape a whole new kind of man. That required "breaking a few eggs," in the words of the Stalinist interrogators in Arthur Koestler's Darkness at Noon. Anyway, what good were free speech and due process to the coal miner, when under capitalism the whole social structure was rigged against him?
That line worked for a time, until the scale of Soviet tyranny became impossible to justify by anyone but its most abject apologists. It became obvious that "bourgeois justice," however imperfect, was infinitely preferable to the Marxist alternative. With the Communist experiment discredited, and Western workers uninterested in staging world revolution, the illiberal left began shifting instead to questions of identity. In race-gender-sexuality theory and the identitarian "subaltern," it found potent substitutes for dialectical materialism and the proletariat. We are still living with the consequences of this shift.
Although there were superficial resemblances, this new politics of identity differed from earlier civil-rights movements. Those earlier movements had sought a place at the American table for hitherto entirely or somewhat excluded groups: blacks, women, gays, the disabled, and so on. In doing so, they didn't seek to overturn or radically reorganize the table. Instead, they reaffirmed the American Founding (think of Martin Luther King Jr.'s constant references to the Declaration of Independence). And these movements succeeded, owing to America's tremendous capacity for absorbing social change.
Yet for the new identitarians, as for the Marxists before them, liberal-democratic order was systematically rigged against the downtrodden—now redefined along lines of race, gender, and sexuality, with social class quietly swept under the rug. America's strides toward racial progress, not least the election and re-election of an African-American president, were dismissed. The U.S. still deserved condemnation because it fell short of perfect inclusion, limitless autonomy, and complete equality—conditions that no free society can achieve given the root fact of human nature. The accidentals had changed from the Marxist days, in other words, but the essentials remained the same.
In one sense, though, the identitarians went further. The old Marxists still claimed to stand on objectively accessible truth. Not so their successors. Following intellectual lodestars such as the gender theorist Judith Butler, the identity left came to reject objective truth—and with it, biological sex differences, aesthetic standards in art, the possibility of universal moral precepts, and much else of the kind. All of these things, the left identitarians said, were products of repressive institutions, hierarchies, and power.
Today's "social-justice warriors" are heirs to this sordid intellectual legacy. They claim to seek justice. But, unmoored from any moral foundations, SJW justice operates like mob justice and revolutionary terror, usually carried out online. SJWs claim to protect individual autonomy, but the obsession with group identity and power dynamics means that SJW autonomy claims must destroy the autonomy of others. Self-righteousness married to total relativism is a terrifying thing.
It isn't enough to have legalized same-sex marriage in the U.S. via judicial fiat; the evangelical baker must be forced to bake cakes for gay weddings. It isn't enough to have won legal protection and social acceptance for the transgendered; the Orthodox rabbi must use preferred trans pronouns on pain of criminal prosecution. Likewise, since there is no objective truth to be gained from the open exchange of ideas, any speech that causes subjective discomfort among members of marginalized groups must be suppressed, if necessary through physical violence. Campus censorship that began with speech codes and mobs that prevented conservative and pro-Israel figures from speaking has now evolved into a general right to beat anyone designated as a "fascist," on- or off-campus.
For the illiberal left, the election of Donald Trump was indisputable proof that behind America's liberal pieties lurks, forever, the beast of bigotry. Trump, in this view, wasn't just an unqualified vulgarian who nevertheless won the decisive backing of voters dissatisfied with the alternative or alienated from mainstream politics. Rather, a vote for Trump constituted a declaration of war against women, immigrants, and other victims of American "structures of oppression." There would be no attempt to persuade Trump supporters; war would be answered by war.
This isn't liberalism. Since it can sometimes appear as an extension of traditional civil-rights activism, however, identity leftism has glommed itself onto liberalism. It is frequently impossible to tell where traditional autonomy- and equality-seeking liberalism ends and repressive identity leftism begins. Whether based on faulty thinking or out of a sense of weakness before an angry and energetic movement, liberals have too often embraced the identity left as their own. They haven't noticed how the identitarians seek to undermine, not rectify, liberal order.
Some on the left, notably Columbia University's Mark Lilla, are sounding the alarm and calling on Democrats to stress the common good over tribalism. Yet these are a few voices in the wilderness. Identitarians of various stripes still lord over the broad left, where it is fashionable to believe that the U.S. project is predatory and oppressive by design. If there is a viable left alternative to identity on the horizon, it is the one offered by Sanders and his "Bernie Bros"—which is to say, a reversion to the socialism and class struggle of the previous century.
Americans, it seems, will have to wait a while for reason and responsibility to return to the left.T
hen there is the illiberal fever gripping American conservatives. Liberal democracy has always had its critics on the right, particularly in Continental Europe, where statist, authoritarian, and blood-and-soil accounts of conservatism predominate. Mainstream Anglo-American conservatism took a different course. It has championed individual rights, free enterprise, and pluralism while insisting that liberty depends on public virtue and moral order, and that sometimes the claims of liberty and autonomy must give way to those of tradition, state authority, and the common good.
The whole beauty of American order lies in keeping in tension these rival forces that are nevertheless fundamentally at peace. The Founders didn't adopt wholesale Enlightenment liberalism; rather, they tempered its precepts about universal rights with the teachings of biblical religion as well as Roman political theory. The Constitution drew from all three wellsprings. The product was a whole, and it is a pointless and ahistorical exercise to elevate any one source above the others.
American conservatism and liberalism, then, are in fact branches of each other, the one (conservatism) invoking tradition and virtue to defend and, when necessary, discipline the regime of liberty; the other (liberalism) guaranteeing the open space in which churches, volunteer organizations, philanthropic activity, and other sources of tradition and civic virtue flourish, in freedom, rather than through state establishment or patronage.
One result has been long-term political stability, a blessing that Americans take for granted. Another has been the transformation of liberalism into the lingua franca of all politics, not just at home but across a world that, since 1945, has increasingly reflected U.S. preferences. The great French classical liberal Raymond Aron noted in 1955 that the "essentials of liberalism—the respect for individual liberty and moderate government—are no longer the property of a single party: they have become the property of all." As Aron archly pointed out, even liberalism's enemies tend to frame their objections using the rights-based talk associated with liberalism.
Under Trump, however, some in the party of the right have abdicated their responsibility to liberal democracy as a whole. They have reduced themselves to the lowest sophistry in defense of the New Yorker's inanities and daily assaults on presidential norms. Beginning when Trump clinched the GOP nomination last year, a great deal of conservative "thinking" has amounted to: You did X to us, now enjoy it as we dish it back to you and then some. Entire websites and some of the biggest stars in right-wing punditry are singularly devoted to making this rather base point. If Trump is undermining this or that aspect of liberal order that was once cherished by conservatives, so be it; that 63 million Americans supported him and that the president "drives the left crazy"—these are good enough reasons to go along.
Some of this is partisan jousting that occurs with every administration. But when it comes to Trump's most egregious statements and conduct—such as his repeated assertions that the U.S. and Putin's thugocracy are moral equals—the apologetics are positively obscene. Enough pooh-poohing, whataboutery, and misdirection of this kind, and there will be no conservative principle left standing.
More perniciously, as once-defeated illiberal philosophies have returned with a vengeance to the left, so have their reactionary analogues to the right. The two illiberalisms enjoy a remarkable complementarity and even cross-pollinate each other. This has developed to the point where it is sometimes hard to distinguish Tucker Carlson from Chomsky, Laura Ingraham from Julian Assange, the Claremont Review from New Left Review, and so on.
Two slanders against liberalism in particular seem to be gathering strength on the thinking right. The first is the tendency to frame elements of liberal democracy, especially free trade, as a conspiracy hatched by capitalists, the managerial class, and others with soft hands against American workers. One needn't renounce liberal democracy as a whole to believe this, though believers often go the whole hog. The second idea is that liberalism itself was another form of totalitarianism all along and, therefore, that no amount of conservative course correction can set right what is wrong with the system.
These two theses together represent a dismaying ideological turn on the right. The first—the account of global capitalism as an imposition of power over the powerless—has gained currency in the pages of American Affairs, the new journal of Trumpian thought, where class struggle is a constant theme. Other conservatives, who were always skeptical of free enterprise and U.S.-led world order, such as the Weekly Standard's Christopher Caldwell, are also publishing similar ideas to a wider reception than perhaps greeted them in the past.
In a March 2017 essay in the Claremont Review of Books, for example, Caldwell flatly described globalization as a "con game." The perpetrators, he argued, are "unscrupulous actors who have broken promises and seized a good deal of hard-won public property." These included administrations of both parties that pursued trade liberalization over decades, people who live in cities and therefore benefit from the knowledge-based economy, American firms, and really anyone who has ever thought to capitalize on global supply chains to boost competitiveness—globalists, in a word.
By shipping jobs and manufacturing processes overseas, Caldwell contended, these miscreants had stolen not just material things like taxpayer-funded research but also concepts like "economies of scale" (you didn't build that!). Thus, globalization in the West differed "in degree but not in kind from the contemporaneous Eastern Bloc looting of state assets."
That comparison with predatory post-Communist privatization is a sure sign of ideological overheating. It is somewhat like saying that a consumer bank's lending to home buyers differs in degree but not in kind from a loan shark's racket in a housing project. Well, yes, in the sense that the underlying activity—moneylending, the purchase of assets—is the same in both cases. But the context makes all the difference: The globalization that began after World War II and accelerated in the '90s took place within a rules-based system, which duly elected or appointed policymakers in Western democracies designed in good faith and for a whole host of legitimate strategic and economic reasons.
These policymakers knew that globalization was as old as civilization itself. It would take place anyway, and the only question was whether it would be rules-based and efficient or the kind of globalization that would be driven by great-power rivalry and therefore prone to protectionist trade wars. And they were right. What today's anti-trade types won't admit is that defeating the Trans-Pacific Partnership and a proposed U.S.-European trade pact known as TTIP won't end globalization as such; instead, it will cede the game to other powers that are less concerned about rules and fair play.
The postwar globalizers may have gone too far (or not far enough!). They certainly didn't give sufficient thought to the losers in the system, or how to deal with the de-industrialization that would follow when information became supremely mobile and wages in the West remained too high relative to skills and productivity gains in the developing world. They muddled and compromised their way through these questions, as all policymakers in the real world do.
The point is that these leaders—the likes of FDR, Churchill, JFK, Ronald Reagan, Margaret Thatcher, and, yes, Bill Clinton—acted neither with malice aforethought nor anti-democratically. It isn't true, contra Caldwell, that free trade necessarily requires "veto-proof and non-consultative" politics. The U.S., Britain, and other members of what used to be called the Free World have respected popular sovereignty (as understood at the time) for as long as they have been trading nations. Put another way, you were far more likely to enjoy political freedom if you were a citizen of one of these states than of countries that opposed economic liberalism in the 20th century. That remains true today. These distinctions matter.
Caldwell and like-minded writers of the right, who tend to dwell on liberal democracies' crimes, are prepared to tolerate far worse if it is committed in the name of defeating "globalism." Hence the speech on Putin that Caldwell delivered this spring at a Hillsdale College gathering in Phoenix. Promising not to "talk about what to think about Putin," he proceeded to praise the Russian strongman as the "preeminent statesman of our time" (alongside Turkish strongman Recep Tayyip Erdogan). Putin, Caldwell said, "has become a symbol of national self-determination."
Then Caldwell made a remark that illuminates the link between the illiberalisms of yesterday and today. Putin is to "populist conservatives," he declared, what Castro once was to progressives. "You didn't have to be a Communist to appreciate the way Castro, whatever his excesses, was carving out a space of autonomy for his country."
Whatever his excesses, indeed.T
he other big idea is that today's liberal crises aren't a bug but a core feature of liberalism. This line of thinking is particularly prevalent among some Catholic traditionalists and other orthodox Christians (both small- and capital-"o"). The common denominator, it seems to me, is having grown up as a serious believer at a time when many liberals—to their shame—have declared war on faith generally and social conservatism in particular.
The argument essentially is this:
We (social conservatives, traditionalists) saw the threat from liberalism coming. With its claims about abstract rights and universal reason, classical liberalism had always posed a danger to the Church and to people of God. We remembered what those fired up by the new ideas did to our nuns and altars in France. Still we made peace with American liberal order, because we were told that the Founders had "built on low but solid ground," to borrow Leo Strauss's famous formulation, or that they had "built better than they knew," as American Catholic hierarchs in the 19th century put it.
Maybe these promises held good for a couple of centuries, the argument continues, but they no longer do. Witness the second sexual revolution under way today. The revolutionaries are plainly telling us that we must either conform our beliefs to Herod's ways or be driven from the democratic public square. Can it still be said that the Founding rested on solid ground? Did the Founders really build better than they knew? Or is what is passing now precisely what they intended, the rotten fruit of the Enlightenment universalism that they planted in the Constitution? We don't love Trump (or Putin, Hungary's Viktor Orbán, etc.), but perhaps he can counter the pincer movement of sexual and economic liberalism, and restore a measure of solidarity and commitment to the Western project.
The most pessimistic of these illiberal critics go so far as to argue that liberalism isn't all that different from Communism, that both are totalitarian children of the Enlightenment. One such critic, Harvard Law School's Adrian Vermeule, summed up this position in a January essay in First Things magazine:
The stock distinction between the Enlightenment's twins—communism is violently coercive while liberalism allows freedom of thought—is glib. Illiberal citizens, trapped [under liberalism] without exit papers, suffer a narrowing sphere of permitted action and speech, shrinking prospects, and increasing pressure from regulators, employers, and acquaintances, and even from friends and family. Liberal society celebrates toleration, diversity, and free inquiry, but in practice it features a spreading social, cultural, and ideological conformism.1
I share Vermeule's despair and that of many other conservative-Christian friends, because there have been genuinely alarming encroachments against conscience, religious freedom, and the dignity of life in Western liberal democracies in recent years. Even so, despair is an unhelpful companion to sober political thought, and the case for plunging into political illiberalism is weak, even on social-conservative grounds.
Here again what commends liberalism is historical experience, not abstract theory. Simply put, in the real-world experience of the 20th century, the Church, tradition, and religious minorities fared far better under liberal-democratic regimes than they did under illiberal alternatives. Are coercion and conformity targeting people of faith under liberalism? To be sure. But these don't take the form of the gulag or the concentration camp or the soccer stadium–cum-killing field. Catholic political practice knows well how to draw such moral distinctions between regimes: Pope John Paul II befriended Reagan. If liberal democracy and Communism were indeed "twins" whose distinctions are "glib," why did he do so?
And as Pascal Bruckner wrote in his essay "The Tyranny of Guilt," if liberal democracy does trap or jail you (politically speaking), it also invariably slips the key under your cell door. The Swedish midwives driven out of the profession over their pro-life views can take their story to the media. The Down syndrome advocacy outfit whose anti-eugenic advertising was censored in France can sue in national and then international courts. The Little Sisters of the Poor can appeal to the Supreme Court for a conscience exemption to Obamacare's contraceptives mandate. And so on.
Conversely, once you go illiberal, you don't just rid yourself of the NGOs and doctrinaire bureaucrats bent on forcing priests to perform gay marriages; you also lose the legal guarantees that protect the Church, however imperfectly, against capricious rulers and popular majorities. And if public opinion in the West is turning increasingly secular, indeed anti-Christian, as social conservatives complain and surveys seem to confirm, is it really a good idea to militate in favor of a more illiberal order rather than defend tooth and nail liberal principles of freedom of conscience? For tomorrow, the state might fall into Elizabeth Warren's hands.
Nor, finally, is political liberalism alone to blame for the Church's retreating on various fronts. There have been plenty of wounds inflicted by churchmen and laypeople, who believed that they could best serve the faith by conforming its liturgy, moral teaching, and public presence to liberal order. But political liberalism didn't compel these changes, at least not directly. In the space opened up by liberalism, and amid the kaleidoscopic lifestyles that left millions of people feeling empty and confused, it was perfectly possible to propose tradition as an alternative. It is still possible to do so.N one of this is to excuse the failures of liberals. Liberals and mainstream conservatives must go back to the drawing board, to figure out why it is that thoughtful people have come to conclude that their system is incompatible with democracy, nationalism, and religious faith. Traditionalists and others who see Russia's mafia state as a defender of Christian civilization and national sovereignty have been duped, but liberals bear some blame for driving large numbers of people in the West to that conclusion.
This is a generational challenge for the liberal project. So be it. Liberal societies like America's by nature invite such questioning. But before we abandon the 200-and-some-year-old liberal adventure, it is worth examining the ways in which today's left-wing and right-wing critiques of it mirror bad ideas that were overcome in the previous century. The ideological ferment of the moment, after all, doesn't relieve the illiberals of the responsibility to reckon with the lessons of the past.
1 Vermeule was reviewing The Demon in Democracy, a 2015 book by the Polish political theorist and parliamentarian Ryszard Legutko that makes the same case. Fred Siegel's review of the English edition appeared in our June 2016 issue.
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The Campus Sex-Crime Tribunals Are Losing
How the courts are intervening to block some of the most unjust punishments of our time
Barrett's decision marked the 59th judicial setback for a college or university since 2013 in a due-process lawsuit brought by a student accused of sexual assault. (In four additional cases, the school settled a lawsuit before any judicial decision occurred.) This body of law serves as a towering rebuke to the Obama administration's reinterpretation of Title IX, the 1972 law barring sex discrimination in schools that receive federal funding.
Beginning in 2011, the Education Department's Office for Civil Rights (OCR) issued a series of "guidance" documents pressuring colleges and universities to change how they adjudicated sexual-assault cases in ways that increased the likelihood of guilty findings. Amid pressure from student and faculty activists, virtually all elite colleges and universities have gone far beyond federal mandates and have even further weakened the rights of students accused of sexual assault.
Like all extreme victims'-rights approaches, the new policies had the greatest impact on the wrongly accused. A 2016 study from UCLA public-policy professor John Villasenor used just one of the changes—schools employing the lowest standard of proof, a preponderance of the evidence—to predict that as often as 33 percent of the time, campus Title IX tribunals would return guilty findings in cases involving innocent students. Villasenor's study could not measure the impact of other Obama-era policy demands—such as allowing accusers to appeal not-guilty findings, discouraging cross-examination of accusers, and urging schools to adjudicate claims even when a criminal inquiry found no wrongdoing.
In a September 7 address at George Mason University, Education Secretary Betsy DeVos stated that "no student should be forced to sue their way to due process." But once enmeshed in the campus Title IX process, a wrongfully accused student's best chance for justice may well be a lawsuit filed after his college incorrectly has found him guilty. (According to data from United Educators, a higher-education insurance firm, 99 percent of students accused of campus sexual assault are male.) The Foundation for Individual Rights has identified more than 180 such lawsuits filed since the 2011 policy changes. That figure, obviously, excludes students with equally strong claims whose families cannot afford to go to court. These students face life-altering consequences. As Judge T.S. Ellis III noted in a 2016 decision, it is "so clear as to be almost a truism" that a student will lose future educational and employment opportunities if his college wrongly brands him a rapist.
"It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking in wisdom or compassion." So wrote the Supreme Court in a 1975 case, Wood v. Strickland. While the Supreme Court has made clear that colleges must provide accused students with some rights, especially when dealing with nonacademic disciplinary questions, courts generally have not been eager to intervene in such matters.
This is what makes the developments of the last four years all the more remarkable. The process began in May 2013, in a ruling against St. Joseph's University, and has lately accelerated (15 rulings in 2016 and 21 thus far in 2017). Of the 40 setbacks for colleges in federal court, 14 came from judges nominated by Barack Obama, 11 from Clinton nominees, and nine from selections of George W. Bush. Brown University has been on the losing side of three decisions; Duke, Cornell, and Penn State, two each.
Court decisions since the expansion of Title IX activism have not all gone in one direction. In 36 of the due-process lawsuits, courts have permitted the university to maintain its guilty finding. (In four other cases, the university settled despite prevailing at a preliminary stage.) But even in these cases, some courts have expressed discomfort with campus procedures. One federal judge was "greatly troubled" that Georgia Tech veered "very far from an ideal representation of due process" when its investigator "did not pursue any line of investigation that may have cast doubt on [the accuser's] account of the incident." Another went out of his way to say that he considered it plausible that a former Case Western Reserve University student was actually "innocent of the charges levied against him." And one state appellate judge opened oral argument by bluntly informing the University of California's lawyer, "When I . . . finished reading all the briefs in this case, my comment was, 'Where's the kangaroo?'"
Judges have, obviously, raised more questions in cases where the college has found itself on the losing side. Those lawsuits have featured three common areas of concern: bias in the investigation, resulting in a college decision based on incomplete evidence; procedures that prevented the accused student from challenging his accuser's credibility, chiefly through cross-examination; and schools utilizing a process that seemed designed to produce a predetermined result, in response to real or perceived pressure from the federal government.C olleges and universities have proven remarkably willing to act on incomplete information when adjudicating sexual-assault cases. In December 2013, for example, Amherst College expelled a student for sexual assault despite text messages (which the college investigator failed to discover) indicating that the accuser had consented to sexual contact. The accuser's own testimony also indicated that she might have committed sexual assault, by initiating sexual contact with a student who Amherst conceded was experiencing an alcoholic blackout. When the accused student sued Amherst, the college said its failure to uncover the text messages had been irrelevant because its investigator had only sought texts that portrayed the incident as nonconsensual. In February, Judge Mark Mastroianni allowed the accused student's lawsuit to proceed, commenting that the texts could raise "additional questions about the credibility of the version of events [the accuser] gave during the disciplinary proceeding." The two sides settled in late July.
Amherst was hardly alone in its eagerness to avoid evidence that might undermine the accuser's version of events; the same happened at Penn State, St. Joseph's, Duke, Ohio State, Occidental, Lynn, Marlboro, Michigan, and Notre Dame.
Even in cases with a more complete evidentiary base, accused students have often been blocked from presenting a full-fledged defense. As part of its reinterpretation of Title IX, the Obama administration sought to shield campus accusers from cross-examination. OCR's 2011 guidance "strongly" discouraged direct cross-examination of accusers by the accused student—a critical restriction, since most university procedures require the accused student, rather than his lawyer, to defend himself in the hearing. OCR's 2014 guidance suggested that this type of cross-examination in and of itself could create a hostile environment. The Obama administration even spoke favorably about the growing trend among schools to abolish hearings altogether and allow a single official to serve as investigator, prosecutor, judge, and jury in sexual-assault cases.
The Supreme Court has never held that campus disciplinary hearings must permit cross-examination. Nonetheless, the recent attack on the practice has left schools struggling to explain why they would not want to utilize what the Court has described as the "greatest legal engine ever invented for the discovery of truth." In June 2016, the University of Cincinnati found a student guilty of sexual assault after a hearing at which neither his accuser nor the university's Title IX investigator appeared. In an unintentionally comical line, the hearing chair noted the absent witnesses before asking the accused student if he had "any questions of the Title IX report." The student, befuddled, replied, "Well, since she's not here, I can't really ask anything of the report." (The panel chair did not indicate how the "report" could have answered any questions.) Cincinnati found the student guilty anyway.1
Limitations on full cross-examination also played a role in judicial setbacks for Middlebury, George Mason, James Madison, Ohio State, Occidental, Penn State, Brandeis, Amherst, Notre Dame, and Skidmore.
Finally, since 2011, more than 300 students have filed Title IX complaints with the Office for Civil Rights, alleging mishandling of their sexual-assault allegation by their college. OCR's leadership seemed to welcome the complaints, which allowed Obama officials not only to inspect the individual case but all sexual-assault claims at the school in question over a three-year period. Northwestern University professor Laura Kipnis has estimated that during the Obama years, colleges spent between $60 million and $100 million on these investigations. If OCR finds a Title IX violation, that might lead to a loss of federal funding. This has led Harvard Law professors Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet, and Nancy Gertner to observe in a white paper submitted to OCR that universities have "strong incentives to ensure the school stays in OCR's good graces."
One of the earliest lawsuits after the Obama administration's policy shift, involving former Xavier University basketball player Dez Wells, demonstrated how an OCR investigation can affect the fairness of a university inquiry. The accuser's complaint had been referred both to Xavier's Title IX office and the Cincinnati police. The police concluded that the allegation was meritless; Hamilton County Prosecuting Attorney Joseph Deters later said he considered charging the accuser with filing a false police report.
Deters asked Xavier to delay its proceedings until his office completed its investigation. School officials refused. Instead, three weeks after the initial allegation, the university expelled Wells. He sued and speculated that Xavier's haste came not from a quest for justice but instead from a desire to avoid difficulties in finalizing an agreement with OCR to resolve an unrelated complaint filed by two female Xavier students. (In recent years, OCR has entered into dozens of similar resolution agreements, which bind universities to policy changes in exchange for removing the threat of losing federal funds.) In a July 2014 ruling, Judge Arthur Spiegel observed that Xavier's disciplinary tribunal, however "well-equipped to adjudicate questions of cheating, may have been in over its head with relation to an alleged false accusation of sexual assault." Soon thereafter, the two sides settled; Wells transferred to the University of Maryland.
Ohio State, Occidental, Cornell, Middlebury, Appalachian State, USC, and Columbia have all found themselves on the losing side of court decisions arising from cases that originated during a time in which OCR was investigating or threatening to investigate the school. (In the Ohio State case, one university staffer testified that she didn't know whether she had an obligation to correct a false statement by an accuser to a disciplinary panel.) Pressure from OCR can be indirect, as well. The Obama administration interpreted federal law as requiring all universities to have at least one Title IX coordinator; larger universities now employ dozens of Title IX personnel who, as the Harvard Law professors explained, "have reason to fear for their jobs if they hold a student not responsible or if they assign a rehabilitative or restorative rather than a harshly punitive sanction."A mid the wave of judicial setbacks for universities, two decisions in particular stand out. Easily the most powerful opinion in a campus due-process case came in March 2016 from Judge F. Dennis Saylor. While the stereotypical campus sexual-assault allegation results from an alcohol-filled, one-night encounter between a male and a female student, a case at Brandeis University involved a long-term monogamous relationship between two male students. A bad breakup led to the accusing student's filing the following complaint, against which his former boyfriend was expected to provide a defense: "Starting in the month of September, 2011, the Alleged violator of Policy had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013."
To adjudicate, Brandeis hired a former OCR staffer, who interviewed the two students and a few of their friends. Since the university did not hold a hearing, the investigator decided guilt or innocence on her own. She treated each incident as if the two men were strangers to each other, which allowed her to determine that sexual "violence" had occurred in the relationship. The accused student, she found, sometimes looked at his boyfriend in the nude without permission and sometimes awakened his boyfriend with kisses when the boyfriend wanted to stay asleep. The university's procedures prevented the student from seeing the investigator's report, with its absurdly broad definition of sexual misconduct, in preparing his appeal. "In the context of American legal culture," Boston Globe columnist Dante Ramos later argued, denying this type of information "is crazy." "Standard rules of evidence and other protections for the accused keep things like false accusations or mistakes by authorities from hurting innocent people." When the university appeal was denied, the student sued.
At an October 2015 hearing to consider the university's motion to dismiss, Saylor seemed flabbergasted at the unfairness of the school's approach. "I don't understand," he observed, "how a university, much less one named after Louis Brandeis, could possibly think that that was a fair procedure to not allow the accused to see the accusation." Brandeis's lawyer cited pressure to conform to OCR guidance, but the judge deemed the university's procedures "closer to Salem 1692 than Boston, 2015."
The following March, Saylor issued an 89-page opinion that has been cited in virtually every lawsuit subsequently filed by an accused student. "Whether someone is a 'victim' is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning," Saylor wrote. "If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision." Saylor concluded that Brandeis forced the accused student "to defend himself in what was essentially an inquisitorial proceeding that plausibly failed to provide him with a fair and reasonable opportunity to be informed of the charges and to present an adequate defense."
The student, vindicated by the ruling's sweeping nature, then withdrew his lawsuit. He currently is pursuing a Title IX complaint against Brandeis with OCR.
Four months later, a three-judge panel of the Second Circuit Court of Appeals produced an opinion that lacked Saylor's rhetorical flourish or his understanding of the basic unfairness of the campus Title IX process. But by creating a more relaxed standard for accused students to make federal Title IX claims, the Second Circuit's decision in Doe v. Columbia carried considerable weight.
Two Columbia students who had been drinking had a brief sexual encounter at a party. More than four months later, the accuser claimed she was too intoxicated to have consented. Her allegation came in an atmosphere of campus outrage about the university's allegedly insufficient toughness on sexual assault. In this setting, the accused student found Columbia's Title IX investigator uninterested in hearing his side of the story. He cited witnesses who would corroborate his belief that the accuser wasn't intoxicated; the investigator declined to speak with them. The student was found guilty, although for reasons differing from the initial claim; the Columbia panel ruled that he had "directed unreasonable pressure for sexual activity toward the [accuser] over a period of weeks," leaving her unable to consent on the night in question. He received a three-semester suspension for this nebulous offense—which even his accuser deemed too harsh. He sued, and the case was assigned to Judge Jesse Furman.
Furman's opinion provided a ringing victory for Columbia and the Obama-backed policies it used. As Title IX litigator Patricia Hamill later observed, Furman's "almost impossible standard" required accused students to have inside information about the institution's handling of other sexual-assault claims—information they could plausibly obtain only through the legal process known as discovery, which happens at a later stage of litigation—in order to survive a university's initial motion to dismiss. Furman suggested that, to prevail, an accused student would need to show that his school treated a female student accused of sexual assault more favorably, or at least provide details about how cases against other accused students showed a pattern of bias. But federal privacy law keeps campus disciplinary hearings private, leaving most accused students with little opportunity to uncover the information before their case is dismissed.
At the same time, the opinion excused virtually any degree of unfairness by the institution. Furman reasoned that taking "allegations of rape on campus seriously and . . . treat[ing] complainants with a high degree of sensitivity" could constitute "lawful" reasons for university unfairness toward accused students. Samantha Harris of the Foundation for Individual Rights in Education detected the decision's "immediate and nationwide impact" in several rulings against accused students. It also played the same role in university briefs that Saylor's Brandeis opinion did in filings by accused students.
The Columbia student's lawyer, Andrew Miltenberg, appealed Furman's ruling to the Second Circuit. The stakes were high, since a ruling affirming the lower court's reasoning would have all but foreclosed Title IX lawsuits by accused students in New York, Connecticut, and Vermont. But a panel of three judges, all nominated by Democratic presidents, overturned Furman's decision. In the opinion's crucial passage, Judge Pierre Leval held that a university "is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex." Before the Columbia decision, courts almost always had rebuffed Title IX pleadings from accused students. More recently, judges have allowed Title IX claims to proceed against Amherst, Cornell, California–Santa Barbara, Drake, and Rollins.
After the Second Circuit's decision, Columbia settled with the accused student, sparing its Title IX decision-makers from having to testify at a trial. James Madison was one of the few universities to take a different course, with disastrous results. A lawsuit from an accused student survived a motion to dismiss, but the university refused to settle, allowing the student's lawyer to depose the three school employees who had decided his client's fate. One unintentionally revealed that he had misapplied the university's own definition of consent. Another cited the importance of the accuser's slurring words on a voicemail, thus proving her extreme intoxication on the night of the alleged assault. It was left to the accused student's lawyer, at a deposition months after the decision had been made, to note that the voicemail in question actually was received on a different night. In December 2016, Judge Elizabeth Dillon, an Obama nominee, granted summary judgment to the accused student, concluding that "significant anomalies in the appeal process" violated his due-process rights under the Constitution.niversities were on the losing side of 36 due-process rulings when Obama appointee Catherine Lhamon was presiding over the Office for Civil Rights between 2013 and 2016; no record exists of her publicly acknowledging any of them. In June 2017, however, Lhamon suddenly rejoiced that "yet another federal court" had found that students disciplined for sexual misconduct "were not denied due process." That Fifth Circuit decision, involving two former students at the University of Houston, was an odd case for her to celebrate. The majority cabined its findings to the "unique facts" of the case—that the accused students likely would have been found guilty even under the fairest possible process. And the dissent, from Judge Edith Jones, denounced the procedures championed by Lhamon and other Obama officials as "heavily weighted in favor of finding guilt," predicting "worse to come if appellate courts do not step in to protect students' procedural due process right where allegations of quasi-criminal sexual misconduct arise."
At this stage, Lhamon, who now chairs the U.S. Commission on Civil Rights, cannot be taken seriously when it comes to questions of campus due process. But other defenders of the current Title IX regime have offered more substantive commentary about the university setbacks.
Legal scholar Michelle Anderson was one of the few to even discuss the due-process decisions. "Colleges and universities do not always adjudicate allegations of sexual assault well," she noted in a 2016 law review article defending the Obama-era policies. Anderson even conceded that some colleges had denied "accused students fairness in disciplinary adjudication." But these students sued, "and campuses are responding—as they must—when accused students prevail. So campuses face powerful legal incentives on both sides to address campus sexual assault, and to do so fairly and impartially."
This may be true, but Anderson does not explain why wrongly accused students should bear the financial and emotional burden of inducing their colleges to implement fair procedures. More important, scant evidence exists that colleges have responded to the court victories of wrongly accused students by creating fairer procedures. Some have even made it more difficult for wrongly accused students to sue. After losing a lawsuit in December 2014, Brown eliminated the right of students accused of sexual assault to have "every opportunity" to present evidence. That same year, an accused student showed how Swarthmore had deviated from its own procedures in his case. The college quickly settled the lawsuit—and then added a clause to its procedures immunizing it from similar claims in the future. Swarthmore currently informs accused students that "rules of evidence ordinarily found in legal proceedings shall not be applied, nor shall any deviations from any of these prescribed procedures alone invalidate a decision."
Many lawsuits are still working their way through the judicial system; three cases are pending at federal appellate courts. Of the two that address substantive matters, oral arguments seemed to reveal skepticism of the university's position. On July 26, a three-judge panel of the First Circuit considered a case at Boston College, where the accused student plausibly argued that someone else had committed the sexual assault (which occurred on a poorly lit dance floor). Judges Bruce Selya and William Kayatta seemed troubled that a Boston College dean had improperly intruded on the hearing board's deliberations. At the Sixth Circuit a few days later, Judges Richard Griffin and Amul Thapar both expressed concerns about the University of Cincinnati's downplaying the importance of cross-examination in campus-sex adjudications. Judge Eric Clay was quieter, but he wondered about the tension between the university's Title IX and truth-seeking obligations.
In a perfect world, academic leaders themselves would have created fairer processes without judicial intervention. But in the current campus environment, such an approach is impossible. So, at least for the short term, the courts remain the best, albeit imperfect, option for students wrongly accused of sexual assault. Meanwhile, every year, young men entrust themselves and their family's money to institutions of higher learning that are indifferent to their rights and unconcerned with the injustices to which these students might be subjected.
1 After a district court placed that finding on hold, the university appealed to the Sixth Circuit.
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Generation Jihad
Review of 'Terror in France' By Gilles Kepel
Kepel is particularly knowledgeable about the history and process of radicalization that takes place in his nation's heavily Muslim banlieues (the depressed housing projects ringing Paris and other major cities), and Terror in France is informed by decades of fieldwork in these volatile locales. What we have been witnessing for more than a decade, Kepel argues, is the "third wave" of global jihadism, which is not so much a top-down doctrinally inspired campaign (as were the 9/11 attacks, directed from afar by the oracular figure of Osama bin Laden) but a bottom-up insurgency with an "enclave-based ethnic-racial logic of violence" to it. Kepel traces the phenomenon back to 2005, a convulsive year that saw the second-generation descendants of France's postcolonial Muslim immigrants confront a changing socio-political landscape.
That was the year of the greatest riots in modern French history, involving mostly young Muslim men. It was also the year that Abu Musab al-Suri, the Syrian-born Islamist then serving as al-Qaeda's operations chief in Europe, published The Global Islamic Resistance Call. This 1,600-page manifesto combined pious imprecations against the West with do-it-yourself ingenuity, an Anarchist's Cookbook for the Islamist set. In Kepel's words, the manifesto preached a "jihadism of proximity," the brand of civil war later adopted by the Islamic State. It called for ceaseless, mass-casualty attacks in Western cities—attacks which increase suspicion and regulation of Muslims and, in turn, drive those Muslims into the arms of violent extremists.
The third-generation jihad has been assisted by two phenomena: social-networking sites that easily and widely disseminate Islamist propaganda (thus increasing the rate of self-radicalization) and the so-called Arab Spring, which led to state collapse in Syria and Libya, providing "an exceptional site for military training and propaganda only a few hours' flight from Europe, and at a very low cost."
Kepel's book is not just a study of the ideology and tactics of Islamists but a sociopolitical overview of how this disturbing phenomenon fits within a country on the brink. For example, Kepel finds that jihadism is emerging in conjunction with developments such as the "end of industrial society." A downturn in work has led to an ominous situation in which a "right-wing ethnic nationalism" preying on the economically anxious has risen alongside Islamism as "parallel conduits for expressing grievances." Filling a space left by the French Communist Party (which once brought the ethnic French working class and Arab immigrants together), these two extremes leer at each other from opposite sides of a societal chasm, signaling the potentially cataclysmic future that awaits France if both mass unemployment and Islamist terror continue undiminished.
The French economy has also had a more direct inciting effect on jihadism. Overregulated labor markets make it difficult for young Muslims to get jobs, thus exacerbating the conditions of social deprivation and exclusion that make individuals susceptible to radicalization. The inability to tackle chronic unemployment has led to widespread Muslim disillusionment with the left (a disillusionment aggravated by another, often glossed over, factor: widespread Muslim opposition to the Socialist Party's championing of same-sex marriage). Essentially, one left-wing constituency (unions) has made the unemployment of another constituency (Muslim youth) the mechanism for maintaining its privileges.
Kepel does not, however, cite deprivation as the sole or even main contributing factor to Islamist radicalization. One Parisian banlieue that has sent more than 80 residents to fight in Syria, he notes, has "attractive new apartment buildings" built by the state and features a mosque "constructed with the backing of the Socialist mayor." It is also the birthplace of well-known French movie stars of Arab descent, and thus hardly a place where ambition goes to die. "The Islamophobia mantra and the victim mentality it reinforces makes it possible to rationalize a total rejection of France and a commitment to jihad by making a connection between unemployment, discrimination, and French republican values," Kepel writes. Indeed, Kepel is refreshingly derisive of the term "Islamophobia" throughout the book, excoriating Islamists and their fellow travelers for "substituting it for anti-Semitism as the West's cardinal sin." These are meaningful words coming from Kepel, a deeply learned scholar of Islam who harbors great respect for the faith and its adherents.
Kepel also weaves the saga of jihadism into the ongoing "kulturkampf within the French left." Arguments about Islamist terrorism demonstrate a "divorce between a secular progressive tradition" and the children of the Muslim immigrants this tradition fought to defend. The most ironically perverse manifestation of this divorce was ISIS's kidnapping of Didier François, co-founder of the civil-rights organization SOS Racisme. Kepel recognizes the origins of this divorce in the "red-green" alliance formed decades ago between Islamists and elements of the French intellectual left, such as Michel Foucault, a cheerleader of the Iranian revolution.
Though he offers a rigorous history and analysis of the jihadist problem, Kepel is generally at a loss for solutions. He decries a complacent French elite, with its disregard for genuine expertise (evidenced by the decline in institutional academic support for Islamicists and Arabists) and the narrow, relatively impenetrable way in which it perpetuates itself, chiefly with a single school (the École normale supérieure) that practically every French politician must attend. Despite France's admirable republican values, this has made the process of assimilation rather difficult. But other than wishing that the public education system become more effective and inclusive at instilling republican values, Kepel provides little in the way of suggestions as to how France emerges from this mess. That a scholar of such erudition and humanity can do little but throw up his hands and issue a sigh of despair cannot bode well. The third-generation jihad owes as much to the political breakdown in France as it does to the meltdown in the Middle East. Defeating this two-headed beast requires a new and comprehensive playbook: the West's answer to The Global Islamic Resistance Call. That book has yet to be written.
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Sometimes a Deal Is Just a Deal
Media Commentary
resident Trump, in case you haven't noticed, has a tendency to exaggerate. Nothing is "just right" or "meh" for him. Buildings, crowds, election results, and military campaigns are always outsized, gargantuan, larger, and more significant than you might otherwise assume. "People want to believe that something is the biggest and the greatest and the most spectacular," he wrote 30 years ago in The Art of the Deal. "I call it truthful hyperbole. It's an innocent form of exaggeration—and a very effective form of promotion."
So effective, in fact, that the press has picked up the habit. Reporters and editors agree with the president that nothing he does is ordinary. After covering Trump for more than two years, they still can't accept him as a run-of-the-mill politician. And while there are aspects of Donald Trump and his presidency that are, to say the least, unusual, the media seem unable to distinguish between the abnormal and significant—firing the FBI director in the midst of an investigation into one's presidential campaign, for example—and the commonplace.
Consider the fiscal deal President Trump struck with Democratic leaders in early September.
On September 6, the president held an Oval Office meeting with Vice President Pence, Treasury Secretary Mnuchin, and congressional leaders of both parties. He had to find a way to (a) raise the debt ceiling, (b) fund the federal government, and (c) spend money on hurricane relief. The problem is that a bloc of House Republicans won't vote for (a) unless the increase is accompanied by significant budget cuts, which interferes with (b) and (c). To raise the debt ceiling, then, requires Democratic votes. And the debt ceiling must be raised. "There is zero chance—no chance—we will not raise the debt ceiling," Senate Majority Leader Mitch McConnell said in August.
The meeting went like this. First House Speaker Paul Ryan asked for an 18-month increase in the debt ceiling so Republicans wouldn't have to vote again on the matter until after the midterm elections. Democrats refused. The bargaining continued until Ryan asked for a six-month increase. The Democrats remained stubborn. So Trump, always willing to kick a can down the road, interrupted Mnuchin to offer a three-month increase, a continuing resolution that will keep the government open through December, and about $8 billion in hurricane money. The Democrats said yes.
That, anyway, is what happened. But the media are not satisfied to report what happened. They want—they need—to tell you what it means. And what does it mean? Well, they aren't really sure. But it's something big. It's something spectacular. For example:
1. "Trump Bypasses Republicans to Strike Deal on Debt Limit and Harvey Aid" was the headline of a story for the New York Times by Peter Baker, Thomas Kaplan, and Michael D. Shear. "The deal to keep the government open and paying its debts until Dec. 15 represented an extraordinary public turn for the president, who has for much of his term set himself up on the right flank of the Republican Party," their article began. Fair enough. But look at how they import speculation and opinion into the following sentence: "But it remained unclear whether Mr. Trump's collaboration with Democrats foreshadowed a more sustained shift in strategy by a president who has presented himself as a master dealmaker or amounted to just a one-time instinctual reaction of a mercurial leader momentarily eager to poke his estranged allies."
2. "The decision was one of the most fascinating and mysterious moves he's made with Congress during eight months in office," reported Jeff Zeleny, Dana Bash, Deirdre Walsh, and Jeremy Diamond for CNN. Thanks for sharing!
3. "Trump budget deal gives GOP full-blown Stockholm Syndrome," read the headline of Tina Nguyen's piece for Vanity Fair. "Donald Trump's unexpected capitulation to new best buds 'Chuck and Nancy' has thrown the Grand Old Party into a frenzy as Republicans search for explanations—and scapegoats."
4. "For Conservatives, Trump's Deal with Democrats Is Nightmare Come True," read the headline for a New York Times article by Jeremy W. Peters and Maggie Haberman. "It is the scenario that President Trump's most conservative followers considered their worst nightmare, and on Wednesday it seemed to come true: The deal-making political novice, whose ideology and loyalty were always fungible, cut a deal with Democrats."
5. "Trump sides with Democrats on fiscal issues, throwing Republican plans into chaos," read the Washington Post headline the day after the deal was announced. "The president's surprise stance upended sensitive negotiations over the debt ceiling and other crucial policy issues this fall and further imperiled his already tenuous relationships with Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan." Yes, the negotiations were upended. Then they made a deal.
6. "Although elected as a Republican last year," wrote Peter Baker of the Times, "Mr. Trump has shown in the nearly eight months in office that he is, in many ways, the first independent to hold the presidency since the advent of the two-party system around the time of the Civil War." The title of Baker's news analysis: "Bound to No Party, Trump Upends 150 Years of Two-Party Rule." One hundred and fifty years? Why not 200?
The journalistic rule of thumb used to be that an article describing a political, social, or cultural trend requires at least three examples. Not while covering Trump. If Trump does something, anything, you should feel free to inflate its importance beyond all recognition. And stuff your "reporting" with all sorts of dramatic adjectives and frightening nouns: fascinating, mysterious, unexpected, extraordinary, nightmare, chaos, frenzy, and scapegoats. It's like a Vince Flynn thriller come to life.
The case for the significance of the budget deal would be stronger if there were a consensus about whom it helped. There isn't one. At first the press assumed Democrats had won. "Republicans left the Oval Office Wednesday stunned," reported Rachael Bade, Burgess Everett, and Josh Dawsey of Politico. Another trio of Politico reporters wrote, "In the aftermath, Republicans seethed privately and distanced themselves publicly from the deal." Republicans were "stunned," reported Kristina Peterson, Siobhan Hughes, and Louise Radnofsky of the Wall Street Journal. "Meet the swamp: Donald Trump punts September agenda to December after meeting with Congress," read the headline of Charlie Spiering's Breitbart story.
By the following week, though, these very outlets had decided the GOP was looking pretty good. "Trump's deal with Democrats bolsters Ryan—for now," read the Politico headline on September 11. "McConnell: No New Debt Ceiling Vote until 'Well into 2018,'" reported the Washington Post. "At this point…picking a fight with Republican leaders will only help him," wrote Gerald Seib in the Wall Street Journal. "Trump has long warned that he would work with Democrats, if necessary, to fulfill his campaign promises. And Wednesday's deal is a sign that he intends to follow through on that threat," wrote Breitbart's Joel Pollak.
The sensationalism, the conflicting interpretations, the visceral language is dizzying. We have so many reporters chasing the same story that each feels compelled to gussy up a quotidian budget negotiation until it resembles the Ribbentrop–Molotov pact, and none feel it necessary to apply to their own reporting the scrutiny and incredulity they apply to Trump. The truth is that no one knows what this agreement portends. Nor is it the job of a reporter to divine the meaning of current events like an augur of Rome. Sometimes a cigar is just a cigar. And a deal is just a deal.
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Jack Benny's Comic Program
Remembering something wonderful
Not surprisingly, many well-established performers were left in the lurch by the rise of the new media. Moreover, some vaudevillians who, like Fred Allen, had successfully reinvented themselves for radio were unable to make the transition to TV. But a handful of exceptionally talented performers managed to move from vaudeville to radio to TV, and none did it with more success than Jack Benny, whose feigned stinginess, scratchy violin playing, slightly effeminate demeanor, and preternaturally exact comic timing made him one of the world's most beloved performers. After establishing himself in vaudeville, he became the star of a comedy series, The Jack Benny Program, that aired continuously, first on radio and then TV, from 1932 until 1965. Save for Bob Hope, no other comedian of his time was so popular.
With the demise of nighttime network radio as an entertainment medium, the 931 weekly episodes of The Jack Benny Program became the province of comedy obsessives—and because Benny's TV series was filmed in black-and-white, it is no longer shown in syndication with any regularity. And while he also made Hollywood films, some of which were box-office hits, only one, Ernst Lubitsch's To Be or Not to Be (1942), is today seen on TV other than sporadically.
Nevertheless, connoisseurs of comedy still regard Benny, who died in 1974, as a giant, and numerous books, memoirs, and articles have been published about his life and art. Most recently, Kathryn H. Fuller-Seeley, a professor at the University of Texas at Austin, has brought out Jack Benny and the Golden Age of Radio Comedy, the first book-length primary-source academic study of The Jack Benny Program and its star.1 Fuller-Seeley's genuine appreciation for Benny's work redeems her anachronistic insistence on viewing it through the fashionable prism of gender- and race-based theory, and her book, though sober-sided to the point of occasional starchiness, is often quite illuminating.
Most important of all, off-the-air recordings of 749 episodes of the radio version of The Jack Benny Program survive in whole or part and can easily be downloaded from the Web. As a result, it is possible for people not yet born when Benny was alive to hear for themselves why he is still remembered with admiration and affection—and why one specific aspect of his performing persona continues to fascinate close observers of the American scene.B orn Benjamin Kubelsky in Chicago in 1894, Benny was the son of Eastern European émigrés (his father was from Poland, his mother from Lithuania). He started studying violin at six and had enough talent to pursue a career in music, but his interests lay elsewhere, and by the time he was a teenager, he was working in vaudeville as a comedian who played the violin as part of his act. Over time he developed into a "monologist," the period term for what we now call a stand-up comedian, and he began appearing in films in 1929 and on network radio three years after that.
Radio comedy, like silent film, is now an obsolete art form, but the program formats that it fostered in the '20s and '30s all survived into the era of TV, and some of them flourish to this day. One, episodic situation comedy, was developed in large part by Jack Benny and his collaborators. Benny and Harry Conn, his first full-time writer, turned his weekly series, which started out as a variety show, into a weekly half-hour playlet featuring a regular cast of characters augmented by guest stars. Such playlets, relying as they did on a setting that was repeated from week to week, were easier to write than the free-standing sketches favored by Allen, Hope, and other ex-vaudevillians, and by the late '30s, the sitcom had become a staple of radio comedy.
The process, as documented by Fuller-Seeley, was a gradual one. The Jack Benny Program never broke entirely with the variety format, continuing to feature both guest stars (some of whom, like Ronald Colman, ultimately became semi-regular members of the show's rotating ensemble of players) and songs sung by Dennis Day, a tenor who joined the cast in 1939. Nor was it the first radio situation comedy: Amos & Andy, launched in 1928, was a soap-opera-style daily serial that also featured regular characters. Nevertheless, it was Benny who perfected the form, and his own character would become the prototype for countless later sitcom stars.
The show's pivotal innovation was to turn Benny and the other cast members into fictionalized versions of themselves—they were the stars of a radio show called "The Jack Benny Program." Sadye Marks, Benny's wife, played Mary Livingstone, his sharp-tongued secretary, with three other characters added as the self-reflexive concept took shape. Don Wilson, the stout, genial announcer, came on board in 1934. He was followed in 1936 by Phil Harris, Benny's roguish bandleader, and, in 1939, by Day, Harris's simple-minded vocalist. To this team was added a completely fictional character, Rochester Van Jones, Benny's raspy-voiced, outrageously impertinent black valet, played by Eddie Anderson, who joined the cast in 1938.
As these five talented performers coalesced into a tight-knit ensemble, the jokey, vaudeville-style sketch comedy of the early episodes metamorphosed into sitcom-style scripts that portrayed their offstage lives, as well as the making of the show itself. Scarcely any conventional jokes were told, nor did Benny's writers employ the topical and political references in which Allen and Hope specialized. Instead, the show's humor arose almost entirely from the close interplay of character and situation.
Benny was not solely responsible for the creation of this format, which was forged by Conn and perfected by his successors. Instead, he doubled as the star and producer—or, to use the modern term, show runner—closely supervising the writing of the scripts and directing the performances of the other cast members. In addition, he and Conn turned the character of Jack Benny from a sophisticated vaudeville monologist into the hapless butt of the show's humor, a vain, sexually inept skinflint whose character flaws were ceaselessly twitted by his colleagues, who in turn were given most of the biggest laugh lines.
This latter innovation was a direct reflection of Benny's real-life personality. Legendary for his voluble appreciation of other comedians, he was content to respond to the wisecracking of his fellow cast members with exquisitely well-timed interjections like "Well!" and "Now, cut that out," knowing that the comic spotlight would remain focused on the man of whom they were making fun and secure in the knowledge that his own comic personality was strong enough to let them shine without eclipsing him in the process.
And with each passing season, the fictional personalities of Benny and his colleagues became ever more firmly implanted in the minds of their listeners, thus allowing the writers to get laughs merely by alluding to their now-familiar traits. At the same time, Benny and his writers never stooped to coasting on their familiarity. Even the funniest of the "cheap jokes" that were their stock-in-trade were invariably embedded in carefully honed dramatic situations that heightened their effectiveness.
A celebrated case in point is the best-remembered laugh line in the history of The Jack Benny Program, heard in a 1948 episode in which a burglar holds Benny up on the street. "Your money or your life," the burglar says—to which Jack replies, after a very long pause, "I'm thinking it over!" What makes this line so funny is, of course, our awareness of Benny's stinginess, reinforced by a decade and a half of constant yet subtly varied repetition. What is not so well remembered is that the line is heard toward the end of an episode that aired shortly after Ronald Colman won an Oscar for his performance in A Double Life. Inspired by this real-life event, the writers concocted an elaborately plotted script in which Benny talks Colman (who played his next-door neighbor on the show) into letting him borrow the Oscar to show to Rochester. It is on his way home from this errand that Benny is held up, and the burglar not only robs him of his money but also steals the statuette, a situation that was resolved to equally explosive comic effect in the course of two subsequent episodes.
No mere joke-teller could have performed such dramatically complex scripts week after week with anything like Benny's effectiveness. The secret of The Jack Benny Program was that its star, fully aware that he was not "being himself" but playing a part, did so with an actor's skill. This was what led Ernst Lubitsch to cast him in To Be or Not to Be, in which he plays a mediocre Shakespearean tragedian, a character broadly related to but still quite different from the one who appeared on his own radio show. As Lubitsch explained to Benny, who was skeptical about his ability to carry off the part:
A clown—he is a performer what is doing funny things. A comedian—he is a performer what is saying funny things. But you, Jack, you are an actor, you are an actor playing the part of a comedian and this you are doing very well.
To Be or Not to Be also stands out from the rest of Benny's work because he plays an identifiably Jewish character. The Jack Benny character that he played on radio and TV, by contrast, was never referred to or explicitly portrayed as Jewish. To be sure, most listeners were in no doubt of his Jewishness, and not merely because Benny made no attempt in real life to conceal his ethnicity, of which he was by all accounts proud. The Jack Benny Program was written by Jews, and the ego-puncturing insults with which their scripts were packed, as well as the schlemiel-like aspect of Benny's "fall guy" character, were quintessentially Jewish in style.
As Benny explained in a 1948 interview cited by Fuller-Seeley:
The humor of my program is this: I'm a big shot, see? I'm fast-talking. I'm a smart guy. I'm boasting about how marvelous I am. I'm a marvelous lover. I'm a marvelous fiddle player. Then, five minutes after I start shooting off my mouth, my cast makes a shmo out of me.
Even so, his avoidance of specific Jewish identification on the air is noteworthy precisely because his character was a miser. At a time when overt anti-Semitism was still common in America, it is remarkable that Benny's comic persona was based in large part on an anti-Semitic stereotype—yet one that seems not to have inspired any anti-Semitic attacks on Benny himself. When, in 1945, his writers came up with the idea of an "I Can't Stand Jack Benny Because . . . " write-in campaign, they received 270,000 entries. Only three made mention of his Jewishness.
As for the winning entry, submitted by a California lawyer, it says much about what insulated Benny from such attacks: "He fills the air with boasts and brags / And obsolete, obnoxious gags / The way he plays his violin / Is music's most obnoxious sin / His cowardice alone, indeed, / Is matched by his obnoxious greed / And all the things that he portrays / Show up MY OWN obnoxious ways." It is clear that Benny's foibles were seen by his listeners not as particular but universal, just as there was no harshness in the razzing of his fellow cast members, who very clearly loved the Benny character in spite of his myriad flaws. So, too, did the American people. Several years after his TV series was cancelled, a corporation that was considering using him as a spokesman commissioned a national poll to find out how popular he was. It learned that only 3 percent of the respondents disliked him.
Therein lay Benny's triumph: He won total acceptance from the American public and did so by embodying a Jewish stereotype from which the sting of prejudice had been leached. Far from being a self-hating whipping boy for anti-Semites, he turned himself into WASP America's Jewish uncle, preposterous yet lovable.W hen the bottom fell out of network radio, Benny negotiated the move to TV without a hitch, debuting on the small screen in 1950 and bringing the radio version of The Jack Benny Program to a close five years later, making it one of the very last radio comedy series to shut up shop. Even after his weekly TV series was finally canceled by CBS in 1965, he continued to star in well-received one-shot specials on NBC.
But Benny's TV appearances, for all their charm, were never quite equal in quality to his radio work, which is why he clung to the radio version of The Jack Benny Program until network radio itself went under: Better than anyone else, he knew how good the show had been. For the rest of his life, he lived off the accumulated comic capital built up by 21 years of weekly radio broadcasts.
Now, at long last, he belongs to the ages, and The Jack Benny Program is a museum piece. Yet it remains hugely influential, albeit at one or more removes from the original. From The Dick Van Dyke Show and The Danny Thomas Show to Seinfeld, Everybody Loves Raymond, and The Larry Sanders Show, every ensemble-cast sitcom whose central character is a fictionalized version of its star is based on Benny's example. And now that the ubiquity of the Web has made the radio version of his series readily accessible for the first time, anyone willing to make the modest effort necessary to seek it out is in a position to discover that The Jack Benny Program, six decades after it left the air, is still as wonderfully, benignly funny as it ever was, a monument to the talent of the man who, more than anyone else, made it so.
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So Long, Mary Ann
Review of 'The Transferred Life of George Eliot' By Philip Davis
Not that there's any danger these theoretically protesting students would have read George Eliot's works—not even the short one, Silas Marner (1861), which in an earlier day was assigned to high schoolers. I must admit I didn't find my high-school reading of Silas Marner a pleasant experience—sports novels for boys like John R. Tunis's The Kid from Tomkinsville were inadequate preparation. I must confess, too, that when I was in graduate school, determined to study 17th-century English verse, my reaction to the suggestion that I should also read Middlemarch (1871–72) was "What?! An 800-page novel by the guy who wrote Silas Marner?" A friend patiently explained that "the guy" was actually Mary Ann Evans, born in 1819, died in 1880. Partly because she was living in sin with the literary jack-of-all-trades George Henry Lewes (legally and irrevocably bound to his estranged wife), she adopted "George Eliot" as a protective pseudonym when, in her 1857 debut, she published Scenes from Clerical Life.
I did, many times over and with awe and delight, go on to read Middlemarch and the seven other novels, often in order to teach them to college students. Students have become less and less receptive over the years. Forget modern-day objections to George Eliot's complex political or religious views. Adam Bede (1859) and The Mill on the Floss (1860) were too hefty, and the triple-decked Middlemarch and Deronda, even if I set aside three weeks for them, rarely got finished.
The middle 20th century was perhaps a more a propitious time for appreciating George Eliot, Henry James, and other 19th-century English and American novelists. Influential teachers like F.R. Leavis at Cambridge and Lionel Trilling at Columbia were then working hard to persuade students that the study of literature, not just poetry and drama but also fiction, matters both to their personal lives—the development of their sensibility or character—and to their wider society. The "moral imagination" that created Middlemarch enriches our minds by dramatizing the complications—the frequent blurring of good and evil—in our lives. Great novels help us cope with ambiguities and make us more tolerant of one another. Many of Leavis's and Trilling's students became teachers themselves, and for several decades the feeling of cultural urgency was sustained. In the 1970s, though, between the leftist emphasis on literature as "politics by other means" and the deconstructionist denial of the possibility of any knowledge, literary or otherwise, independent of political power, the high seriousness of Leavis and Trilling began to fade.
The study of George Eliot and her life has gone through many stages. Directly after her death came the sanitized, hagiographic "life and letters" by J.W. Cross, the much younger man she married after Lewes's death. Gladstone called it "a Reticence in three volumes." The three volumes helped spark, if they didn't cause, the long reaction against the Victorian sages generally that culminated in the dismissively satirical work of the Bloomsbury biographer and critic Lytton Strachey in his immensely influential Eminent Victorians (1916). Strachey's mistreatment of his forbears was, with regard to George Eliot at least, tempered almost immediately by Virginia Woolf. It was Woolf who in 1919 provocatively said that Middlemarch had been "the first English novel for adults." Eventually, the critical tide against George Eliot was decisively reversed in the '40s by Joan Bennett and Leavis, who made the inarguable case for her genuine and lasting achievement. That period of correction culminated in the 1960s with Gordon S. Haight's biography and with interpretive studies by Barbara Hardy and W.J. Harvey. Books on George Eliot over the last four decades have largely been written by specialists for specialists—on her manuscripts or working notes, and on her affiliations with the scientists, social historians, and competing novelists of her day.
The same is true, only more so, of the books written, with George Eliot as the ostensible subject, to promote deconstructionist or feminist agendas. Biographies have done a better job appealing to the common reader, not least because the woman's own story is inherently compelling. The question right now is whether a book combining biographical and interpretive insight—one "pitched," as publishers like to say, not just at experts but at the common reader—is past praying for.
Philip Davis, a Victorian scholar and an editor at Oxford University Press, hopes not. His The Transferred Life of George Eliot—transferred, that is, from her own experience into her letters, journals, essays, and novels, and beyond them into us—deserves serious attention. Davis is conscious that George Eliot called biographies of writers "a disease of English literature," both overeager to discover scandals and too inclined to substitute day-to-day travels, relationships, dealings with publishers and so on, for critical attention to the books those writers wrote. Davis therefore devotes himself to George Eliot's writing. Alas, he presumes rather too much knowledge on the reader's part of the day-to-day as charted in Haight's marvelous life. (A year-by-year chronology at the front of the book would have helped even his fellow Victorianists.)
As for George Eliot's writing, Davis is determined to refute "what has been more or less said . . . in the schools of theory for the last 40 years—that 19th-century realism is conservatively bland and unimaginative, bourgeois and parochial, not truly art at all." His argument for the richness, breadth, and art of George Eliot's realism—her factual and sympathetic depiction of poor and middling people, without omitting a candid representation of the rich—is most convincing. What looms largest, though, is the realist, the woman herself—the Mary Ann Evans who, from the letters to the novels, became first Marian Evans the translator and essayist and then later "her own greatest character": George Eliot the novelist. Davis insists that "the meaning of that person"—not merely the voice of her omniscient narrators but the omnipresent imagination that created the whole show—"has not yet exhausted its influence nor the larger future life she should have had, and may still have, in the world."
The transference of George Eliot's experience into her fiction is unquestionable: In The Mill on the Floss, for example, Mary Ann is Maggie, and her brother Isaac is Tom Tulliver. Davis knows that a better word might be transmutation, as George Eliot had, in Henry James's words, "a mind possessed," for "the creations which brought her renown were of the incalculable kind, shaped themselves in mystery, in some intellectual back-shop or secret crucible, and were as little as possible implied in the aspect of her life." No data-accumulating biographer, even the most exhaustive, can account for that "incalculable . . . mystery."
Which is why Davis, like a good teacher, gives us exercises in "close reading." He pauses to consider how a George Eliot sentence balances or turns on an easy-to-skip-over word or phrase—the balance or turn often representing a moment when the novelist looks at what's on the underside of the cards.
George Eliot's style is subtle because her theme is subtle. Take D.H. Lawrence's favorite heroine, the adolescent Maggie Tulliver. The external event in The Mill on the Floss may be the girl's impulsive cutting off her unruly hair to spite her nagging aunts, or the young woman's drifting down the river with a superficially attractive but truly impossible boyfriend. But the real "action" is Maggie's internal self-blame and self-assertion. No Victorian novelist was better than George Eliot at tracing the psychological development of, say, a husband and wife who realize they married each other for shallow reasons, are unhappy, and now must deal with the ordinary necessities of balancing the domestic budget—Lydgate and Rosamund in Middlemarch—or, in the same novel, the religiously inclined Dorothea's mistaken marriage to the old scholar Casaubon. That mistake precipitates not merely disenchantment and an unconscious longing for love with someone else, but (very finely) a quest for a religious explanation of and guide through her quandary.
It's the religio-philosophical side of George Eliot about which Davis is strongest—and weakest. Her central theological idea, if one may simplify, was that the God of the Bible didn't exist "out there" but was a projection of the imagination of the people who wrote it. Jesus wasn't, in Davis's characterization of her view, "the impervious divine, but [a man who] shed tears and suffered," and died feeling forsaken. "This deep acceptance of so-called weakness was what most moved Marian Evans in her Christian inheritance. It was what God was for." That is, the character of Jesus, and the dramatic play between him and his Father, expressed the human emotions we and George Eliot are all too familiar with. The story helps reconcile us to what is, finally, inescapable suffering.
George Eliot came to this demythologized understanding not only of Judaism and Christianity but of all religions through her contact first with a group of intellectuals who lived near Coventry, then with two Germans she translated: David Friedrich Strauss, whose 1,500-page Life of Jesus Critically Examined (1835–36) was for her a slog, and Ludwig Feuerbach, whose Essence of Christianity (1841) was for her a joy. Also, in the search for the universal morality that Strauss and Feuerbach believed Judaism and Christianity expressed mythically, there was Spinoza's utterly non-mythical Ethics (1677). It was seminal for her—offering, as Davis says, "the intellectual origin for freethinking criticism of the Bible and for the replacement of religious superstition and dogmatic theology by pure philosophic reason." She translated it into English, though her version did not appear until 1981.
I wish Davis had left it there, but he takes it too far. He devotes more than 40 pages—a tenth of the whole book—to her three translations, taking them as a mother lode of ideational gold whose tailings glitter throughout her fiction. These 40 pages are followed by 21 devoted to Herbert Spencer, the Victorian hawker of theories-of-everything (his 10-volume System of Synthetic Philosophy addresses biology, psychology, sociology, and ethics). She threw herself at the feet of this intellectual huckster, and though he rebuffed her painfully amorous entreaties, she never ceased revering him. Alas, Spencer was a stick—the kind of philosopher who was incapable of emotion. And she was his intellectual superior in every way. The chapter is largely unnecessary.
The book comes back to life when Davis turns to George Henry Lewes, the man who gave Mary Ann Evans the confidence to become George Eliot—perhaps the greatest act of loving mentorship in all of literature. Like many prominent Victorians, Lewes dabbled in all the arts and sciences, publishing highly readable accounts of them for a general audience. His range was as wide as Spencer's, but his personality and writing had an irrepressible verve that Spencer could only have envied. Lewes was a sort Stephen Jay Gould yoked to Daniel Boorstin, popularizing other people's findings and concepts, and coming up with a few of his own. He regarded his Sea-Side Studies (1860) as "the book . . . which was to me the most unalloyed delight," not least because Marian, whom he called Polly, had helped gather the data. She told a friend "There is so much happiness condensed in it! Such scrambles over rocks, and peeping into clear pool [sic], and strolls along the pure sands, and fresh air mingling with fresh thoughts." In his remarkably intelligent 1864 biography of Goethe, Lewes remarks that the poet "knew little of the companionship of two souls striving in emulous spirit of loving rivalry to become better, to become wiser, teaching each other to soar." Such a companionship Lewes and George Eliot had in spades, and some of Davis's best passages describe it.
Regrettably, Davis also offers many passages well below the standard of his best—needlessly repeating an already established point or obfuscating the obvious. Still, The Transferred Lives is the most formidably instructive, and certainly complete, life-and-works treatment of George Eliot we have.
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