Cornell University Press 2023 Political Science Magazine

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BANNED BOOKS, BANNED BODIES, AND THE DISPLACEMENT OF POLITICS

by Bonnie Honig

Why are we hearing so much these days about book bans, trans people, and drag queens? One reason is this: In a post-Roe world, which is where Americans now live thanks to the Supreme Court’s Dobbs decision, the need to protect fragile fetuses from inhospitable wombs is less mobilizing, nationally, than it was when Roe was the law of the land.

In this new post-abortion landscape, Republicans needed a new location for their old issue and they have found it. Instead of saying they are protecting fetuses from sexually adventurous women, they now claim to want to protect children from sexually adventurous people who live beyond the binary of male/female sex-gender. They cast those who are different as dangerous, calling them groomers and predators, as they once called women seeking abortions murderers. The hope is to gin up enough outrage to make a difference come election season. It’s working.

Recently, in my neighborhood, a local high school held a drag event. On Nextdoor, some objected that such events are not safe for students. Others, defending the event, replied that drag is safe! It is “just theater!” We have always had cross-dressing in theater, they pointed out, from Shakespeare to Milton Berle and Robin Williams (the film Mrs. Doubtfire is a favorite family-friendly reference). “When I see people complaining about drag shows,” said one noble soul, “I want to live in their world, where the worst social pressure facing our children are people wearing outlandish makeup and funny clothes.” Others protested that “[t]hings that are likely to embarrass and make a lot of people feel awkward just really don’t belong in schools, especially public ones.”

What is important about drag is precisely that it challenges many conventions of sex and gender.

Proclaiming its harmlessness is the most common defense of drag on Nextdoor and in the media. But drag needs to be defended because it means something; not because it means nothing.

der. Mocking, citing, and enjoying the lengths to which all of us go to conform to the sex/ gender binary’s demands, drag performers highlight the theatricality of sex/gender, its artifice.

Drag performances will reassure some, even securing their confidence in their own naturalness, by contrast with what they see on stage. But others may find themselves wondering whether conventional identities betray rather than fulfil them. Some may greet such wonder with relief. Others may find it disturbing. Most adolescents negotiate confusing feelings all the time.

Democracy requires that we embrace the challenge of encounters with difference, rather than neutralize them as harmless.

If harmlessness is not the right defense of drag performance, what is? The answer is democratic equality. Democratic equality requires defending the kind of togetherness that is unsettling. It chafes to encounter others who appear different from people you know in your own home. It makes you question what you thought was the way things are. But the way things are where you live may not be the way things are. That is what college is for. To find that out. To question, examine, think, and reflect, and then to adjust, alter or, yes, reaffirm your sense of what is right and what is real.

It is not a harmless thing to have your deepest assumptions unsettled. It is not harmless to be pressed to question what you once thought was the unvarnished truth. But it is important we do so, because unvarnished truths are costly. In defense of them, people are often forced to live fake lives. Inauthenticity has painful costs. People who live closeted in one way or another tend either to pass the pain on to others, or withdraw from the world. Neither is democratically desirable. For queer kids and nonbinary people, who are also part of our communities, drag offers a much-needed mirror. It may be a lifeline to those being targeted now to know they are not alone, that gender comes in more than two sizes and sexuality is not just available in two colors.

Democracy requires that we embrace the challenge of encounters with difference, rather than neutralize them as harmless.

Like the aborting women who preceded them in the Republicans’ pantheon of impropriety, drag queens, and all nonbinary people, do not stay in their normatively assigned patriarchal place. Hence the demand that nonconforming persons use the so-called “right” bathroom, play on the right teams, and wear the right clothes to prom. Defending drag as just performance, plays into their hands, because it relegates theatricality to the theater.

At stake in policing where and when people can be seen or encountered is not the safety of children, as is claimed. At stake is the viability of the minoritized as full members of a democratic society and equal subjects with rights who are entitled to flourishing. At stake is everyone’s ability to imagine the world otherwise and to experiment with new ways of being, released from the harness of reproduction, both ideological and biological. Let’s get outraged about that.

THE EXCERPT

Liberalism is an ideology, a political movement, and a set of cultural, political, and economic practices aimed at maximizing personal potential by putting into effect a distinct set of values, such as liberty and pluralism, through a distinct set of institutions, such as free markets and representative government. Liberalism has been called “the most influential political philosophy of the last 300 years” and is the dominant ideology in that part of the world known collectively as “the West.”1 In recent years, however, it has become common to speak of a “crisis of liberalism,” with many commentators believing that liberalism is under threat from both within and without the West. Among the most important players said to be challenging liberalism’s global dominance is Russia.

Ideological differences are just one of the causes of the current political tensions between Russia and the West. Nevertheless, these tensions have taken on an ideological hue. Western leaders portray themselves as representing the forces of liberalism and democracy against conservatism and autocracy. Meanwhile, their Russian counter parts pose as the champions of an alternative to the Western-led liberal world order. Thus, in a 2019 interview, Russian president Vladimir Putin (b. 1952) remarked that “the liberal idea has become obsolete. It has come into conflict with the interests of the overwhelming majority of the population.”2

At the time of writing, in early 2023, as Russia fights a war in Ukraine, is the target of Western sanctions, and clamps down on political expression and freedom at home, Russian liberalism is in an extremely parlous state. This is far from untypical in Russian history. Indeed, Russian liberalism has rarely fared well. Liberals have held power for only two short periods of time—very briefly in 1917 and then for a few years during the 1990s. Determining why what is considered the primary mode of political thought and practice in the West has failed to achieve similar success in Russia is a matter of considerable contemporary relevance.

This is far from easy. Daniel Field notes that “it is not clear . . . what ‘liberal’ and ‘liberalism’ mean with reference to nineteenth-century Russia.”3 One can say something similar for the twentieth and twenty-first centuries, with additional complications arising when one tries to fit all three eras within the same framework. As V. A. Gutorov comments, “Defining liberalism was an extremely knotty problem in Russian social thought from the very beginning and has remained so until today. Creating a contemporary typology of our country’s liberalism, taking into account its historical and contemporary peculiarities, is an extremely difficult task.”4

This problem is not unique to Russia, in part due to the fact that liberalism overlaps with other political beliefs and practices and can be professed together with beliefs and practices that are illiberal, or at the very least nonliberal.5 The term liberalism encompasses a huge variety of different viewpoints, many of which appear to be entirely contradictory.6 This puts the student of liberalism in a difficult position. On the one hand, its existence and importance cannot be denied. On the other hand, it is not at all clear what it is.

Another problem is that understandings of liberalism have changed over time. Some historians date liberalism’s origins back many hundreds of years.7 However, most consider that as a formal ideology and political movement, liberalism emerged in Western Europe in the early nineteenth century.8 In its initial manifestation, liberalism was a movement that sought to limit arbitrary government and carve out a private sphere of life into which the state should not intrude.9 Politically, early liberalism of this sort was associated with demands for civil liberties (such as freedom of speech) and with a preference for free trade and markets over protectionism and state regulation of the economy. These became the tenets of what is now known as “classical” liberalism.10

As the nineteenth century progressed, classical liberalism attracted criticism from socialists and other radicals, who argued that the freedom sought by liberals was of no benefit to those who were too poor to make use of it. As the Russian writer Nikolai Chernyshevsky (1828–1889) commented, “Liberalism conceives freedom in a very narrow, purely formal way. . . . Neither I nor you,

reader, is forbidden to dine off a golden dinner ser vice; unfortunately neither you nor I has or, in all probability, ever will have the means with which to put this refined idea into practice; for this reason I say frankly that I place no value whatever on my right to have a golden dinner ser vice and am ready to sell this right for a silver ruble or less. All those rights for which liberals plead are exactly like that for the common people.”11

In the face of such criticism, European liberals shifted their position toward a more positive understanding of liberty, arguing that what mattered was not so much freedom “from” as freedom “to,” and particularly the freedom for individuals to fulfill their potential. To do this they required assistance from the state, in matters such as education, economic opportunity, and health care.12 Victorian-era British philosopher T. H. Green (1836–1882) declared that “when we speak of freedom as something to be so highly prized, we mean a positive power or capacity of doing or enjoying something worth doing or enjoying, and that, too, something that we do or enjoy in common with others.”13 Green’s views have been described as “social liberalism” (a term occasionally used to describe some post-Soviet Russian liberals) and had a strong influence on what in Britain became known as “New Liberalism,” an interventionist philosophy that saw the state as a major provider of social benefits.14 The boundaries between liberalism and socialism began to blur, especially as the twentieth century progressed and the scale of state intervention in social and economic life grew.

Over time, therefore, liberals became more and more associated with “big government.” Old-style classical liberalism did not, however, disappear. During the Cold War, some in the West looked to classical liberalism as a counterweight to communism. Drawing on the ideas of thinkers of the Austrian school of economics such as Friedrich von Hayek (1899–1992) and Ludwig von Mises (1881–1973), neoliberalism (not to be confused with the aforementioned New Liberalism) reaffirmed the value of personal freedom and free markets.15 By the late twentieth century, the term “liberal” could refer either to supporters of big government or to supporters of limited government, although in political terms these groups stood very much in opposition to one another. European and American understandings of the word also vary: in Europe the emphasis is on free markets, whereas in the United States, “liberal” has become closely associated with support for government intervention, although this distinction is not rigid.

In the past thirty years or so, liberalism has moved in yet another direction, defined by philosopher Charles Taylor as the “politics of difference.” Its proponents argue that human dignity requires that the unique identity of the individual be recognized and safeguarded. Since that identity is often connected

to membership of a group, safeguarding it may also require recognition of group rights. The focus of this liberalism thus shifted from demanding identical rights for all individuals to accommodating differences. As Taylor puts it, “Where the politics of universal dignity fought for forms of nondiscrimination that were quite ‘blind’ to the ways in which citizens differ, the politics of difference often redefines nondiscrimination as requiring that we make these distinctions the basis of differential treatment.”16 Seeking accommodation manifests itself in what are commonly called identity politics.17

Liberalism has thus changed considerably over the past 200 years. As Rostislav Kapeliushnikov says, the result of this process of change is that “liberalism has long since ceased to be a strictly defined concept with clearly outlined semantic boundaries, and has turned into a bunch of multicolored associations that often have nothing in common with one another. . . . It is appropriate to compare it to a gigantic ship to whose bottom, after long years of sailing, there has stuck an inconceivable quantity of all kinds of odds and ends.”18

Scholars to date have only partially analyzed the Russian aspect of this story, with some eras of history having attracted far more attention than others. Western historians have focused mainly on the period before the revolutions of 1917.19 Studies include biographies of leading Imperial Russian liberals, and analyses of certain aspects of liberal thought and of liberal parties and organizations.20 Some key liberal texts of the era have been translated into English.21 By contrast, a mere handful of scholars have examined Russian liberalism during the period of the civil war and subsequently in emigration.22 Likewise, with a few notable exceptions, the reemergence of liberal ideas during the Soviet period has been largely ignored, creating the impression that liberalism appeared fully formed out of nowhere in the late 1980s.23 Given the weakness of liberalism in contemporary Russia, it has also been deemed not worthy of significant attention from Western scholars, whose focus in recent years has been overwhelmingly on Putin and the system that he leads.24

A similar pattern appears in the writings of Russian authors. During the Soviet era, they largely ignored liberalism, but following the collapse of the Soviet Union, Russian scholarship on liberalism of the imperial period exploded, with a vast literature being produced on liberal movements, parties, and personalities.25 Particularly notable are historians Valentin Shelokhaev (b. 1941) and Aleksei Kara-Murza (b. 1956), who have produced a prodigious number of works on Russian liberalism from the late eighteenth century to the end of the civil war.26 A small number of authors have continued the story of Russian liberalism into emigration, but the Soviet period is again a relative void.27

Consequently, prior to this book there has been no study that examines Russian liberalism as a whole, from its origins in the late eighteenth century

through the Soviet era to post-Soviet Russia, including also the interwar Russian emigration. Furthermore, there is no consensus in the existing liter ature on numerous issues. These include the origins of Russian liberalism; the definition of liberalism, and who and what should be considered liberal in a Russian context; and the relationship of Russian liberalism to Western liberalism. Following a brief analysis of theories of liberalism, the next chapter addresses these issues in order to set the scene for the ten chapters that follow. Four cover the prerevolutionary era. One examines the revolution and civil war. One looks at the Russian emigration. Two study the Soviet period. And finally, two chapters cover the post-Soviet era. This book thereby provides the first comprehensive survey of Russian liberalism from its origins in the late eighteenth century through to the present day.

Defining Russian Liberalism

Despite the differences between them, there is general agreement that some common thread does unite liberalism’s many variations. The intellectual challenge is to identify what this is. This chapter therefore begins with a brief overview of theoretical literature on the general topic of liberalism, before moving on to discuss the specifics of liberalism in Russia.

One may view liberalism as composed of three concentric rings. In the central ring is the person or individual. This focus is not unique to liberalism. Many other political ideologies, as well as religions, give a central importance to the human person. Thus, while it is true that the person is the “foundational liberal principle,” this is not sufficient by itself to distinguish liberalism from other doctrines and practices.1 To do that one must identify other principles that unite the various forms that liberalism has taken and that constitute the unique way in which liberalism considers that the interests of the person should be promoted. These form the second and third rings. In the second are certain principles pertaining to how the interests of the person may best be served. And in the third and outermost ring are the institutions through which these principles are given practical expression. It is not necessary for all of these principles and institutions to be present for somebody or something to be considered liberal. Moreover, different people will attach different meanings and different relative values to the various elements. The result is that different versions of liberalism may appear to be at odds with one another.

CAN THERE BE A RIGHTS RECKONING FOR NATIONS THAT DON’T WANT TO DO IT?

Amanda Taub, “The Interpreter,” NY Times

A decade ago, Kate Cronin-Furman, then a Ph.D. student in political science at Columbia University, noticed something odd.

The government of Sri Lanka, which the United Nations and international observers had accused of killing tens of thousands of civilians during the final phases of that country’s devastating civil war, had started creating what Cronin-Furman called “strange institutions” that were supposedly tasked with accountability for atrocities during the war.

“There was a Lessons Learned and Reconciliation Commission. There was a so-called Army Court of inquiry. There were a couple of other commissions set up,” said Cronin-Furman, who is now a political science professor at University College London.

These proliferating new commissions and courts seemed to accept, for the first time, the possibility that atrocities had taken place, even though the Sri Lankan government was still furiously denying that. But the new institutions seemed to bring few if any results, and accordingly did nothing to stem the torrent of international criticism from survivors’ groups and human rights organizations, or from the countries that had backed calls for an international inquiry.

So why create them?

Answering that question led Cronin-Furman to a much bigger question: whether, and how, international pressure can convince states to change their behavior, with a specific focus on something they tended to be very, very reluctant to do: provide accountability for mass atrocities. Her answer is the subject of her new book, Hypocrisy and Human Rights.

To my great surprise, I found it actually gave me some hope about the way power works and can be worked with. Here’s my conversation with Cronin-Furman, edited for length and clarity, about the issue.

To my great surprise, I found it actually gave me some hope about the way power works and can be worked with.

Amanda Taub: When you went looking for an explanation for these strange institutions, as you called them, what did you discover?

Kate Cronin-Furman: The main question that I ended up answering is “How do post-atrocity governments respond to international pressure for accountability when they really, really don’t want to do it?”

These institutions are more about providing a fig leaf for those other states that are asked to take a position on accountability

I mostly focused on the kind of bizarre institutional forms and strategic interactions that emerge when these governments face international pressure from human rights advocates, foreign governments, or the U.N. to do something that is domestically just totally untenable politically: to provide justice and accountability for mass atrocities.

These strange institutions are not about convincing anyone who’s demanding justice. Victims are not going to be persuaded by this. Your Human Rights Watch and Amnesty International advocates are not going to be persuaded by this. Foreign policy bureaucracies in global north states that do this kind of work are not going to be persuaded by this.

Rather, these institutions are more about providing a fig leaf for those other states that are asked to take a position on accountability. States on the U.N. Human Rights Council, for instance, that would have to be persuaded to vote for a resolution. And basically, it’s about sparing them the embarrassment and the reputational loss of standing up for a human rights abuser.

The post-atrocity government itself is saying, “No, no, no, look, we set up this commission! They’re working on reconciliation! Everything’s great. Leave us alone.” And what that does is to offer to these other states the opportunity to say, “Yeah, let’s give them time. They’ve got this institution, and it’s got ‘reconciliation’ right in the name!”

And one thing that maybe gets lost sometimes in other conversations about this stuff is that time is really valuable for human-rights-abusing states. I mean, to put it quite starkly, time can give you the opportunity to bulldoze mass graves, to disappear witnesses. For perpetrators to bolster their domestic power centers to protect themselves. Time can give you the ability to get past a domestic election. You know, if a Human Rights Council resolution coming out might imperil your vote share in an upcoming election, just delaying it for three to six months, that’s valuable.

Amanda Taub: Can you give an example of how this has played out in practice?

Kate Cronin-Furman: Sri Lanka, while continuing to insist that there had been basically no civilian casualties and definitely no atrocities in the final phases of the war, started to create this series of institutions — all of which had mandates that were sort of adjacent to the question of accountability for human rights violations, but none of which actually took that issue head on.

And at first glance, this was really puzzling! Because none of these were compelling to anyone

who was actually informed on the human rights issues or engaged on them.

But where the reaction was different was in those other countries on the Human Rights Council whose votes would have been needed to impanel a strong international inquiry.

In the record of those council meetings, some of which I was actually present for in Geneva, we see these other countries picking up on the language that Sri Lanka used to defend its institutions, picking up on rhetoric about protesting “Western human rights pressure” and, you know, “infringement on Sri Lanka’s sovereignty.”

And in the end, it was actually five years before there was an international inquiry empaneled in 2014, and it was much weaker than what anyone wanted in the beginning. And I think that is owed to the fact that Sri Lanka very strategically set up these institutions, exactly at moments of kind of coalescing international pressure and, you know, shopped them quite hard to audiences that might find it persuasive.

Amanda Taub: Obviously this was a loss for the groups that were calling for an immediate, strong international inquiry. But there is a bigger-picture takeaway here that actually struck me as quite optimistic: This suggests that international responses like condemnation and investigation have real weight, because otherwise why go to such lengths to avoid or delay them?

This suggests that international responses like condemnation and investigation have real weight, because otherwise why go to such lengths to avoid or delay them?

Kate Cronin-Furman: If I have a personal motto, it’s that, you know, international institutions and human rights pressure are not doing the thing we want them to be doing, but that doesn’t mean they’re doing nothing.

We tend to get into this very all-or-nothing thinking, but it’s really worth looking at what their impacts actually are, and thinking about how we can maximize them and how we can actually use the levers that are there.

Amanda Taub: It seems as if there could be a norm-strengthening effect as well, because when perpetrators do this quasi-compliance, they are in effect publicly stating that these human rights rules should be followed, even if they are denying that they violated them. Which is reassuring to me, in some ways, because it shows a path toward incremental improvements as these norms strengthen over time.

Kate Cronin-Furman: That is the hope, right? The fact that these human rights tools exist doesn’t, on its own, do anything. But each time someone picks them up and uses them, at great personal sacrifice and often risk, they make it that much easier and smoother the next time.

Amanda Taub: I think a question a lot of people will have after hearing about this book is what it might mean for accountability for Russian atrocities in Ukraine.

Kate Cronin-Furman: I have a much more optimistic read on that situation than what I’m talking about in this book, which are these really hard cases for human rights where you have a repressive, intransigent government and an abused, marginalized population.

But the fact that Russia has invaded another country’s territory, and that the people who are suffering under those attacks are the citizens of another state, has made it much less complex for other states to stand up for Ukraine.

Usually when we’re talking about serious violations of human rights, the sovereignty concern is like, “Oh, we shouldn’t interfere in this repressive state’s sovereignty here.” But in this case, sovereignty militates in the opposite direction.

And because Ukraine is a state, they’ve got their own justice system. They’ve got their own prosecutors, some really good ones. I think the ability of Ukraine to prosecute at least the lower and midlevel folks themselves here is an unalloyed good.

Now, I suspect the question people actually want to know the answer to is what the chances are that Putin, or very high up Russian military commanders, will face justice. And that’s one where there’s probably not a particularly optimistic response.

They’re not going to land before the International Criminal Court unless a very unexpected series of events occurs. It is probably not out of the question that a different international tribunal could be set up with a mandate to try some of those people. But whether they would actually be able to get custody of them would be quite tricky.

1869

The Cornell University Press Podcast an interview with Martin SiEgEl, author of Judgment and mercy

hosted by Jonathan hall

The following is a transcript of an episode of 1869, the Cornell University Press podcast. It has been transcribed using AI software. Any typos, errors, or inconsistencies may be the result of the transcription or the natural pattern of the human voice and speech. If you wish to listen to the origial, search 1869 podcast through whicever podcast service you prefer.

Welcome to 1869, The Cornell University Press Podcast. I’m Jonathan Hall. In this episode we speak with Martin Siegel, author of Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs. Martin Siegel practices and teaches law in Houston. After clerking for Judge Kaufman, he served as an Assistant US Attorney in Manhattan, and on the staff of the US Senate Judiciary Committee. His writing has been published in the New York Times, The Los Angeles Times, the Houston Chronicle and legal journals. As we mark the 70th anniversary of the Rosenberg executions, we spoke to Martin about their story, as well as that of the young and ambitious judge who sentenced them to death, Judge Irving Robert Kaufman. We learn that in the decades after that fateful decision, Judge Kaufman transformed into one of the most progressive judges of his time, and Martin also shares with us his, and his fellow clerks’, experiences working for the judge. Hello, Martin, welcome to the podcast.

Thank you. Great to be here.

Well, I’m very excited to talk to you about your new book, Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs. This June 19 of this year marks the 70th anniversary of the Rosenberg executions by electric chair for the crime of atomic espionage. Tell us a bit about their story as well as the subject of your book, the young and ambitious judge who sentenced them to deathm, Judge Irving Robert Kaufman.

Thank you. So so the Rosenberg story came to public attention in 1951 really 1950 When they were first charged, or Julius was first charged, the trial was 1951. And they were the latest and by far the most well known figures in a sort of growing and larger espionage ring. That included a number of people in the United States and also a prominent physicist in England who was apprehended and prosecuted and jailed in England and Klaus Fuchs, who was he’s sort of not all that well known today unless you really a burrowed into this, this sort of slice of history. But he was by far the most valuable member of this espionage relating to the Soviets. He was an actual physicist and knew a great deal more about the atomic bomb than any other member and provided more valuable information to the Russians. By contrast, the Rosenbergs and Ethel Rosenberg whose brother David Greenglass, who was the main witness against them, did not know all that much about the atomic bomb. David Greenglass had been a machinist at Los Alamos, which was an entirely random sort of assignment. He had, he was not terribly well educated. He had a poor

Jonathan

Martin

Martin

scientific background, but he was stationed there at Los Alamos and he was a committed communist, as was his brother in law, Julius and his sister, Ethel. And they had been for many years. And they decided with this sort of surprising assignment, to put their beliefs into action, so to speak. And so they persuaded David to bring back whatever information he could about what was going on there at Los Alamos to New York. And at first it was the names of scientists and things of that nature. But eventually, David Greenglass brought back and also a courier was sent out to New Mexico, who, who also brought back on a separate ship, information about the atomic bomb, primarily a sketch of the lens mold, which was a key component of the bomb, although the sketch itself as you would expect from a not terribly educated machinist was crude and hand drawn. And there’s there’s debate to this day over how valuable that information was to the Soviets. Now, unbeknownst to of course, any of those people and under the Honorable Judge Kaufman, who presided over their trial, who we’ll talk about in a minute, whom is subject of the book. The United States had broken the Soviets code during World War Two in something called Project Venona, and that’s what led them to the arrest, identify and arrest this espionage ring. That’s how Julius and Ethel came to be suspects and were arrested. Although there was precious little information about Ethel. There wasn’t more information about Julius. And again, that’s something that to this day is debated of the evidence at trial against Julius came from, as I said, David Greenglass, but some other sources as well. Another couple of couriers testified, sort of well known at the time woman who had been part of the Communist Party became almost a mini celebrity Elizabeth Bentley testified and there were a number of minor witnesses, all who reinforcing the case against Julius and his role in this this conspiracy. The only evidence against Ethel came from her brother David Greenglass, who testified that He brought those notes back from Los Alamos. She had typed them up, made them legible. Then the Julius had passed them along to his Russian contacts who, by the way, was also identified, but he’d fled or sorry, identified and dated, but he fled to the Soviet Union. And so that was the sole evidence at trial from David Greenglass and his wife, Ruth Greenglass against Ethel. And in the 1990s, David admitted that that had been perjured that he had essentially made up this story of Ethel typing in order to protect his own wife, who was also involved in this conspiracy, Ruth Greenglass, he insisted that she not be charged. But as trial approached in March of 1951, the government really leaned hard on him knowing they had very little evidence against Ethel and got him to concoct this story. So they were convicted in 1951. And then we come to the second part of your question, which is Judge Kaufman. He sent it to them to death, he presided over their trial. Let me tell you a bit about Judge Kaufman. And he’s the subject of my book. I was a law clerk for Judge Kaufman and one of his last two from 1991 1992. He died during the time we worked for him, and that’s what gave rise to this book. In 1951, he’d only been on the bench about 16 months, and he was one he was the second youngest judge in America federal judge at that time, extremely ambitious. Of course, one doesn’t

get to be a federal judge, and probably it’s fair to say the most important federal trial bench in America, New York City, at that time anyway, without being both accomplished and extremely ambitious and political. He was a member of the Democratic Party, he raised money in the Democratic Party. He was sort of a protege of a number of important political and legal figures J. Edgar Hoover was prominent among them, he’d come to know J. Edgar Hoover, when he was a prosecutor in the US Attorney’s Office, and Tom Clark, who’s Truman’s Attorney General was a close friend, and Clark was probably more than anyone else responsible for putting him on the bench. Kaufman’s background was very much like the Rosenbergs, which I think is something that fitted into his psyche when it came time to decide what the punishment should be for their portrayal of the United States. He’d grown up quite poor. It’s sort of the classic Jewish American rags to riches in one generation story. His parents were immigrants. He was born six years after they got to America, lived on the Lower East Side eventually moved to Jewish Harlem, educated at Fordham, but but just a truly impressive sort of self made success came to public prominence as a prosecutor in the 1930s. And then in the 1940s represented prominent in private practice media figures and also Milton Berle. Nice client to have but if you’re trying to impress people like Tom Clark and J, Edgar Hoover, you can arrange private audiences after shows and benefits with Milton Berle which which Judge Kaufman did. So. So fast forward to the Rosenberg case, it was a case he wanted, he wanted to try that case. And back then today, it’s a more random assignment system back then there was more play in the joints for both the prosecutors to kind of arrange things so that they were likely to get inserted and get a certain judge, and for judges themselves, who wanted certain cases to reach out and get them down. And Judge Kaufman did that with the help of a family friend and a sort of protege of his Roy Cohn. So he gets the case and he fully appreciates. I think it’s advantageous to him as a vehicle for notoriety and for potential advancement. During the trial, he intervenes in a way that seemed to favor the government, although in his defense, that was a point on appeal, and the appellate courts denied that it was anything unusual or outside the usual discretion of a federal trial judge. He also and this wasn’t revealed until the 1970s conducted secret ex parte discussions with the prosecution, the prosecution team mostly Roy Cohn, during the trial, and although it is true that that was probably not completely uncommon in those days, I think other judges may have done the same, it was a less formal system them nonetheless, even by the rules in place, then it was a violation of legal ethics. And it’s certainly something that today looking back on it, we can see compromises neutrality, that he’s also of course well known for sentencing and Rosenberg’s to death. So what why did he do that? In the book, I argue, a couple of factors. He was extremely anti-communist as a protege of Hoover and also a disciple of Fordham. He was a product of both Fordham college and Fordham Law School. And that was a fairly conservative place in the 1930s and 40s. When Judge Kaufmann or Well, I say 20s and 30s, when he was there, but he remained sort of connected to the institu-

tion to some degree. I think that influenced his thinking. And the other factor that aside from his personal ambition that I really argued influence the result is, is just this special disdain he had for the Rosenbergs because they, as I said, started out where he did in life really almost exactly the same place, Lower East Side, Julius was raised in Jewish Harlem as Kaufman had been are a bit later. But you know, America had been so good to Irving Kaufman. He succeeded so thoroughly here he the mass prosperity, he’d achieved this sort of political and legal prominence. And I think when he came across these two people with his background he could have least arguably succeeded as he did, but who viewed the whole enterprise as corrupt, and not worthy of patriotic support. I think he saw their betrayal and special and very personal terms.

That’s interesting. Yeah, that makes total sense. In your book, you mentioned that there was a Gallup poll in February of 1953, which showed public approval of a death sentence at 76%.

That’s right.

It wasn’t an unusual sentence in that it was it was approved by the public. But then in the 60s and 70s, what happened then?

Right, right. Well, right. So to go back to your to the first part of it, in 53, you know, and certainly a 51. Even more so when they were tried. It’s the Korean War. It’s McCarthyism. Unfortunately for the Rosenbergs, they, their offense was judged, you know, assessed by a jury and then judged in terms of satisfying Josh Kaufman in probably the worst time in terms of the climate and because of his personal blind spots. I think Doug Kaufman might have been one of the worst judges they could have drawn on there. Frankly, I’m not sure he would have been terribly sympathetic, then. Right. But the Rosenberg lawyer made an interesting argument for mercy when he was arguing about the Senate. And so week after the conviction, he said, and he repeated this argument, about a year and a half later, when he was arguing for reduction in sentence, he said, who knows, but that history may turn. And what he’s referring to is that in the war, we’ve been allies with Russia. And of course, by 1951 and 53. It was a very different time, but he was making the point to the judge that, you know, I’m not sure how well this is going to look in the light of history, because who knows if we’re not allies later in time, or if this Cold War has died down somewhat, and that proved to be prophetic. He was a lawyer, who Rosen was lawyer was deficient in lots of ways. And a lot of people have said that not just me, but his his arguments for mercy, especially the second time around in 1952. Were eloquent and compelling. And he was right, that history turned off that we became allies exactly with the Soviet Union, but by the late 60s and 70s, that that sort of atomic terror. It was on the front page of newspapers during the Korean War, there was there was true and real and legitimate fear of an atomic war. And so the Rosenbergs was seen as arch arch beings for having given away our most pow-

Jonathan

Martin Martin

Jonathan

erful weapon that was gone, you know, it’s now the late 60s and 70s. And people are used to the Soviets having the bomb, they’re used to this concept of Mutually Assured Destruction. We’re even beginning to get into the world of detente by the 1970s. And, you know, the left had changed by Dan, it was something of a new left in the late 60s and 70s. And they weren’t they weren’t a sort of obsessed with the internees side battles of the Communist Party and Stalinism, versus, you know, other flavors of Bolshevism versus the more progressive, you know, mainstream left all of that a lot of that faded. Instead, when they charged that the Rosenbergs had been framed, a lot of people believed it. And the reason they believed it is because there was a whole new slate of government misconduct to base that argument on, for example, lies in Vietnam, you know, by the late 60s and 70s, sort of the official line of the government of Vietnam is shown to be deceptive and hollow, and then there’s Watergate. And so by the mid 70s, to say that the government might lie and frame somebody doesn’t seem as preposterous, as when the Rosenbergs defenders who were mostly communists. Well, I That’s not fair. I mean, they’re hardcore defenders in the early 50s. Were communist. But there were a lot of people who just objected to the sentences who were not communists, of course, by by the late 60s and 70s. There’s little more credence to that argument and the fact that we’ve broken the Soviets code, and we have this sort of information in that secret that we couldn’t reveal at trial. That’s not public yet, either. And the Rosenbergs offenders continue to maintain their innocence and a big catalyst was that their sons then had two small children 10 And I believe six at the time of the executions were obviously very sympathetic. But they after the executions, they sort of disappeared, they were raised by different families. Their name was not Rosenberg it was mere Paul after the family that took them in. And by the late 60s, early 70s, they make a kind of personal decision, that they are going to come forward and say who they are, and make it their cause to clear their parents names. And they were compelling, figures articulate, smart, good looking and just hard to dismiss. And they begin to hammer away at the case and say, you know, look, there was only one witness and this witness was biased. He was on trial for his own life trying to save his skin. And they poked holes and other little bits of evidence here and there. There’s a book that came out I think in 65 Icahn invitation to an inquest by to sort of left leaning science, freelance writers who did a truly deep dive into the evidence and brought out some contradictions and other things. And so this public campaign really takes hold and their rallies all over the country and their newspaper articles, their headlines like, you know, the Rosenbergs, we tried and Rosenberg’s you know, on trial again, 35 years later, and these are in major news outlets. And then something happens that really throws gas on the fire, which is revelation of Judge Kaufman’s misconduct. One of the one of the first Freedom of Information Act requests in the early 70s, after some amendments to FOIA made it easier to get information from the government was from the Rosenberg’s kids, and they began to get these snippets of information from FBI files suggesting that Judge Kaufmann had had these ex parte

Jonathan Martin

contacts. So now they’re not able to, they’re able to say noxious look, this case is shaky, or a lot of people may have realized they’re able to say the judge committed misconduct. And that’s that’s powerful. It really did. There were calls for Judge competence impeachment. There were calls for hearings, there was a letter by 100 plus law professors that were articles in the New York Times. And just cop was really under siege. And he had a key was, for example, he was going to give a speech at Pomona College a commencement address. He had to cancel that because it looked like there were going to be demonstrations. It’s a real foreshadowing of of some of the some of the free speech on campus arguments and controversies we see today. There were pickets he would go give a speech and a legal aid, society dinner, that sort of thing. And they were pickets there waiting for him. There it bled into his social life of the I interviewed the miracles, Michael Meeropol, one of the two sons and he told me that someone had written him a letter saying he’d seen judge Kaufman at a party and spilled wine on him and muttered to himself. That’s where Julius and Ethel. So it affected his social life, he went to a dinner party, and one of the one of the women there, accosted him and said, Why did you give him the death sentence, you know, and he sort of stammered and gave an excellent explanation. So all of this was reminiscent for him of what had happened in 5152 53. He’d experienced back then when it was alive controversy and especially in the months leading up to the executions, when there was a real move for clemency and pickets at the White House and elsewhere. experience death threats, bomb threats, he’d had to flee his apartment, on the eve of the execution because there were so many bomb threats. The FBI was constantly sweeping the apartment, it was under guard, his kids were under guard. So all that went away after 53. But it sort of came back in a fashion in the 70s. And really, it was a real tragedy in a sense for him. I don’t I’m not saying it wasn’t undeserved at some level, it wasn’t undeserved, given how he behaved in the trial. And the view of many that the sentences were excessive, but it was it was a surprise for sure.

Interesting, and what’s fascinating is, so there’s this there’s a backlash, and then there’s a as far as, you know, saving face or clearing one’s name, you have the Rosenberg children trying to clear their family name. Then you have Judge Kaufman trying to save face on his part, and how if you get accosted at party’s, and he’s an upwardly mobile gentleman, which he clearly was, how is he going to square the circle that and so what I think is fascinating is that he became something that few predicted that he became one of the most progressive judges of his time. There’s a great line in your book where you say “Grace withheld from the Rosenbergs overflowed towards others, the weak, the excluded. The unpopular.” Tell us about these pathbreaking decisions that he was responsible for.

Right. I mean, that’s one of the great ironies of this story is that it did become a leading progressive judge in his day. And he got he got very little forgiveness from the Rosenberg oriented critics, or that they viewed as

a sort of Sham, you know, cheap attempted atonement, a cheap attempt to stay in the good graces of elite, liberal Jewish Upper East Side society, which he was very much a member of an attempt to remain on great terms with the New York Times he was friendly with the publisher of The Times Salzburger and and the executive editor there A.M. Rosenthal. And so that was that was kind of the theory on as the book on him is that this was this was a facade of atonement. And so I argued in the book, it’s, it’s really deeper than that. So yeah, let me describe some of those decisions. He was the first judge to desegregate a school and the North. That was in 1960-61. It was in New Rochelle, New York and fascinating case. And you know, there have been a number of those cases. And they were growing in the south, of course, but that was the first one in the north, which raised a whole different set of issues because they are that second, the segregation was less based on de jure a law and more on de facto residential patterns and things of that nature. So in some ways, it was sort of harder case to cut through that then a very crude and obvious segregation and south in prison condition cases, he became quite liberal. So there was a case arising out of the Metropolitan Corrections Center, a whole host of conditions were challenged by defendants, including body cavity searches, which had become socially routine almost, and he invalidated those and found them a violation constitutional rights Supreme Court overruled him. In First Amendment cases, he became a sort of leading proponent of freedom of the press freedom of the individual to descend. So in the Pentagon Papers case, which went through the Second Circuit on its way to the Supreme Court. He was one of the minority who argued for immediate publication, whereas the Second Circuit actually continued to pause on publication for a lot of the items and sent it back to the district judge and they were overruled by the Supreme Court a couple of days later agreeing with Judge Kaufman Kaufman innovated a couple of interesting privileges that again, don’t they’ve been cut back on by the Supreme Court. One was for reporters to be able to discuss and deliberate about their articles among editors and not have to reveal that in a libel suit that arose out of a very well publicized big case, brought against 60 minutes by former officer to Vietnam. He came up with something called the neutral reportage privilege, which has been in the news lately because it was going to be what Fox News was going to rely on. Fox News was gonna say in defense legally anyway, of its of the defamation case, arising out of the voting machines that, look, we’re allowed us reporters to report on this controversy. We’re not endorsing what President Trump might say about voting machines or his acolytes might say we’re just we’re just neutrally reporting well, that you can disagree with that. But that concept that a news outlet or reporter is not liable for the truth or falsity of the thing that reporting on that comes from the case against the New York Times brought the brought by the Audubon Society. The judge Kaufmann decided he was the judge who decided that John Lennon could stay in America John Lennon was the target of a sort of politically motivated, bogus deportation campaign by Nixon’s Attorney General John Mitchell aided and abetted by Strom

Thurmond. They wanted to get Lenin because Lenin leading up to the 72 election was doing going around trying to organize the youth vote, it was the first election where a teen 18 year olds could vote. So they wanted to retaliate. Lenin had been here on a series of visas, and they discovered this sort of old drug conviction he pled guilty to in England. And they argued that that made him ineligible to remain in America on his visa, even though he had been here that had been automatically renewed, you know, period after period and judge Kaufman found that that was unconstitutional. The conviction in England didn’t live up to American due process standards. But government also understood what was really going on. But it was politically motivated. He had a live in the decision saying we take very seriously this idea that the deportation laws would be used as a tool of political retaliation. And then finally, one one last case I’ll mention there are lots of others, but he sort of dusted off a law from 1789, in a case brought by parent Wan family against a Paraguayan police officer who had tortured and killed the son of a leading dissident in Paraguay in the 1970s. Or that that person came to the United States, the the police colonel who did that came to the United States. And when the family of Paraguay learned that they came to the United States and brought a lawsuit against him under the a what’s called the Alien Tort Statute, passed as part of the very first set of laws governing the judiciary in 1789. That law makes it a tort such that you can sue in federal court for a violation of what’s called the law of nations. Well, in this case, Judge coffin became the first judge to interpret that phrase, the law of nations to embrace all of these growing human rights treaties and human rights norms that sort of grown up after World War Two. So it’s a real landmark decision allowing people who’ve been human rights victims anywhere in the world in theory to sue their oppressors as long as there was jurisdiction over them here in the United States, which in that case, there was because he was here that gave birth to really a whole area of law, like a number of wave of lawsuits in the 80s and 90s. Based on human rights violations, for example, out of the Bosnian war, a lot of the Holocaust remuneration litigation was based on that it was suits against the Marcos family, and then starting in the 90s into the 2000s, a new kind of lawsuit against American corporations and multinational corporations for misdeeds abroad. And like a lot of what Judge Kauffman did that was too liberal for the Supreme Court, the increasingly conservative Supreme Court, which is a series of decisions starting in the early 2000s. And culminating in just the last couple of years, they’ve almost eliminated that whole area of liability but it fascinatingly it, Judge confidence innovation went beyond the US it gave birth to this concept of universal jurisdiction around the world. So for example, in Spain, it was a judge for a long time who would be prosecuted Pinochet, he prosecuted other human rights abusers in places having nothing to do with Spain. And he was calling on this principle of universal jurisdiction, which took cop and and helped innovate in that decision in America in the late 70s. And 80s are such a fascinating transition.

Here he is in the 50s, as you know, the spokesperson for the government, and we’re going to really lay down the law and now he’s going against the government. It’s right. Fascinating. So now, what’s what’s also interesting is that, you know, he was very, obviously a very public figure. And these decisions are very public with long standing ramifications down the line in a very positive way. But you also go into His family life, which was very troubled, and what was the connection between his private life and then these public decisions?

Right, he did have a troubled family life like sad a lot of ways he had three kids. They suffered from substance abuse and mental illness. One of them died at 38 on a hiking trip to Peru, but there was some suggestion that drugs might have been involved. And there’s no question he had a bit of a drug problem. He had another son who had even greater substance abuse and suffered from Munchausen disease and ended up losing the limb because of that, and just being really only partially able to function. You had a third son who was institutionalized on and off and with severe mental illness, that son also predeceased him, his wife had attempted suicide, also substance abuse, alcohol problems, pain, addiction problems seem to suffer from anorexia. So these are all obviously these are these are serious, serious, no doubt deep seated ailments and and it would be facile to trace them, you know, too closely to any one cause. But the relatives I spoke to, did link them to some degree to a couple of things, you know, beyond simply genetics and beyond simply the environmental causes for those kinds of issues that we’re all kind of aware of, they thought the Rosenberg controversy might have had something to do with it. And that’s because the family sort of lived under siege for a long time that it was a quote from his daughter in law and said, sort of paraphrasing here, but basically, what she said was like, how do you have a normal childhood when your father is trying to Rosenberg’s you know, and what they mean is that they were under a guard, a lot, they were sort of special words, almost are projects of the FBI. One of his sons was at Syracuse in 1958 59, when Judge coffin was presiding over a kind of well known mafia case, as a he was still a trial judge at that stage. And that son received a death threat. In college that might have been no one knows what might have been a prank, no one really knows where it came from. It’s hard, it’s impossible to know if it was a serious threat. But of course, given the history was taken seriously, and the FBI immediately, you know, investigated and went and guarded him. And so there was all of that. He also had a quite difficult personality, Josh Kaufman, he was prickly. He was extremely demanding. He was a bit tyrannical go to law clerks, famously so but but also whose kids it didn’t seem very different wasn’t it was kind of father who just wasn’t satisfied and believe that the way for them for his kids to succeed was to drive them towards success. You know, he’d been extremely driven. And so by the time he has kids, the families prosperous, they’re living on Park Avenue, they’re quite well to do. And there’s a sort of sense that since, you know, general circumstances aren’t going to drive his kids the way he was driven by poverty

Jonathan Martin

and being second generation here in the US that he had to sort of supply the, the impetus and the incentive, and, you know, as a person who needed to be in control, who needed to be almost to dominate and when things in his life seemed out of control, like this larger controversy that besieged him, you know, he arguably sort of retaliated by tightening the screws all the harder and grandchildren of this, this middle generation who’ve done so you’d had such affliction. You know, they believe that their father’s way of being a dad, you know, couldn’t have helped those kids with their illnesses and their other issues. So, you know, it’s all it’s all sort of armchair psychology. It’s hard to know. But but they the family life was tragic in some ways.

Wow. Well, you mentioned armchair psychology, you but you also have firsthand experience. You were, as you mentioned, you were as his conference, last law clerk, and the book opens up your experience at his funeral. Tell us about some of the experiences you had and your impressions of the judge.

Yeah, so the judge, the judge can be extremely hard. And I had a fairly atypical experience actually, because when I started working for him, which was August of 1991. He wasn’t in the office. He’s coming back from vacation, and then he came back the end of August and within a couple of months, he was declining. In health, and he died in February of 1992. So I only saw sort of glimpses of what we might call the Kauffman treatment, which is like sometimes like his kids clerks couldn’t measure up for, sort of, regardless of what they did. And some of that, you know, the I interviewed about 50 former law clerks, and some of them thought it was his insecurity. He’d gone to Fordham, he hired clerks only from Harvard, Columbia, Yale, and Stanford used to call them Harvard, sort of derisively, if you’ve gone to Harvard, he would call you Harvard in a sort of sarcastic way. He had this tradition, every year, when the new courts would start over the summer, he, they would write their first draft opinion for him, and he would look it over, call them back into his office an hour later and be marked up with red pen, and he’d physically throw it at them. And say, in essence, I’m gonna amend this because I assume this is a family podcast and say, this is terrible, except he didn’t use the word terrible. And you know, a lot of clerks were really discombobulated by this, many of them quit over the years, he would have cottonwood erupt, sort of irrationally, fire them, even though you were kind of supposed to know when he fired you that you didn’t really, you know, most of the time, he hadn’t really fired you. Sometimes he’d fire you, and you would not come in the next day, you would think, well, it’s terrible. I’ve been fired by my judge, how do I explain that to future employers? What do I put on my resume? You know, but at least I don’t ever have to see the guy again. And then you get a call from chambers. And he’d be where, you know, the screening and like, where are you? And he’d say, Well, Judge, you know, don’t you remember you, you fire me yesterday? And he said, No, I didn’t get in here, you know, you’re behind get it, you need to get

Martin

Jonathan

in here. So he was just, he was just sort of impossible to predict that way. And he had he also again, grandchildren told me, he did this in his family, he would play them off against one another. So he, for many years, he had two clerks and then in the 1970s, because he was chief judge, he had three clerks. And the way the the way the office worked is you’ve sat in a kind of anti loom, and he was in a big sort of office and back and he would buzz you in with a buzzer. And the clerk who was in his best graces was cork number one, you get one buzz, and you have to run right in. And I have to tell me, like, you know, I still hear that buzzer in my nightmares, you know that just as because you had to, you had to be in there, within three seconds, whatever you were doing on the phone in the middle of a thought writing a sentence, like drop it in there. If you wanted to talk to the second clerk, there’d be two buses, you need to ask the Secretary and the third clerk was in such a deep doghouse that he didn’t even get plugged in. And in fact, and it was it was you would kind of infer some humiliating treatment if you were the third clerk, because sometimes he wouldn’t talk to you. He would just he would talk to the first clerk and say, Tell him such and such, he would just sort of kind of like freeze you out. So I mean, I just I heard all kinds of crazy stories of one one, the woman who started who was locked up right before me, you know, just couldn’t take this treatment, as long as a lot of people couldn’t. And she would go to the bathroom, and she’d cry a lot. And so eventually, the judge noticed her absence and said to the number one clerk, you know, where is she? And he’d say, well, she’s in the bathroom judge. And he would, he began to think that she must be drinking too much water. So he banned water from chambers for a while. So it’s just, it’s just one of these sort of old school tyrannical, unpredictable grenade waiting to explode sort of bosses. And these days, I don’t think I’m not sure you can get away with a 40 year run of that back then, you know, it was just like your little more unreviewable to use a legal term, right? So he did get away with it. One year, I’ll tell you one last story that one year, embarrassed him. And then in the 1980s, all three of his clerks quit it at the same time, that actually made the papers and it was kind of humiliating for him and the only time that ever happened, because clerks it however badly they’re treated, if it’s a one year job, so and you’re going on to a law firm, and you’re gonna put it on your resume, and it’s kind of feather in your cap to have as a young lawyer and you have every incentive just to stick it out. And just, you know, even if the judge is never going to talk to you again, or give you a reference, like at least you can just get out of there so so for someone to quit just shows you how bad and unendurable and really kind of was. So anyway, difficult guy, but you know, what he wanted, could also be a prince when he wanted to, which usually was dealt with awkward, but he could be funny, he could be charming. Garius and there was that side of him too, for sure. He wouldn’t have gotten where he was if he was just completely No, no, no, not at all. And as I said, he was in his earlier days when he was kind of flattering his way to the top in addition to accomplish it his way to the top, but he did both, you know, he was quite quite warm, quite sociable. And he had, you know, he had like, he had some

close friends and to his friends he was he was loyal, and then even to a small number of clerks who kind of managed to graduate the Kaufman bootcamp and get into his good graces for those relatively small number he would add, you know, avidly promote their careers and stay in touch. So, you know, he could he could be that way. He just didn’t want too much of the time.

Well, we’re so glad that you were a clerk under him. You know, I don’t think this book would have existed if that didn’t happen

Absolutely not.

So we’re very grateful for that. You know, you have a personal experience when we’re grateful that you shared that with us as well as in the book but also you did a really deep in depth look at interviewing dozens of people and really getting down to the bottom of his story and and fascinating story that we encourage all of our listeners to read, it was just was given a really glowing review in the New York Review of Books. So it’s a great read - Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs. It was great talking with you, Martin.

Thanks very much, really appreciate it.

That was Martin Siegel, author of Judgment and Mercy: The Turbulent Life and Times of the Judge Who Condemned the Rosenbergs.

three Questions with DENISA KOSTOVICOVA

author of Reconciliation by Stealth

1. What is your favorite anecdote from researching your book?

An interview that was cancelled stands out as one of the most poignant moments from my fieldwork in Bosnia and Herzegovina. During the conflict that lasted from 1992 to 1995, this country experienced violence on the scale and brutality not seen on the European soil since World War II. Some 20 years later, at the time when I was doing my field research, many victims of violence had not received justice. Others were still looking for their loved ones, or, more precisely, for their remains.

unpredictable it is to conduct research involving victims of violence and family members of the missing. I conducted my research applying the highest standards of research ethics, as mandated and approved by institutional procedures in place at my university. However, the issue here is that the professional guidance on ethical research had not adequately addressed ethical dilemmas arising in unpredictable interactions with people touched by war.

3. How do you wish you could change your field?

My research, and my book, in particular, break

My interviewee was unable to make it to Sarajevo because they stopped to have a break in a village on the way. Out of the blue, a local belonging to the “enemy” side approached them and tipped them off about a location of a mass grave. Its existence and location had not been known previously. The local could no longer live with a conscience of knowing about it and not telling. The representatives of this victim association decided to stay in the area to make further inquires and arrange for the excavation on the site.

2. What do you wish you had known when you started writing your book that you know now?

I wish I had known more about how

new ground because they make a strong case for the scientific study of discourse in the field of transitional justice and peacebuilding.

It is a truism that “before a person is killed by a bullet, they are killed by a word.” Exclusive discourses dehumanize people on the opposing side foreshadowing violence and human rights abuse. But discourse also plays a crucial role in attempts to restore relations across a conflict divide and rebuild relations torn by violence.

I wish I had known more about how unpredictable it is to conduct research involving victims of violence and family members of the missing.

THE EXCERPT

The Boston Tea Party was not, despite what you may have read, unanimously acclaimed; even some Patriots were appalled. The ensuing Patriot boycott and prohibition on tea did not endure; both ended before Congress declared independence. The Tea Party did not turn Americans away from drinking tea. In 1800, the average American drank a least as much tea as his predecessor in 1770. The Tea Party did little to create US national identity; that process took decades. Giving up British material culture— “unbecoming British”—took just as long. Tea boycotts were disagreements among fellow Britons; they were incredibly porous and did little to alter consumption.1

This should not be surprising. In the eighteenth centur y, trade between states did not automatically end when they were at war, nor did consumers easily make market decisions on political g rounds. In the Seven Years’ War (1756–1763), Philadelphia, New York, and Rhode Island merchants traded with enemy French ports, enriching themselves and providing colonial consumers with cheap rum and sugar.2 The British state strug gled to stop this trade, for many merchants and colonists saw this as business, not treason. Politicizing trade and consumption was difficult in 1760. So, too, in 1774.

Yet tea mattered deeply in the Revolution. Destroying it was the Patriots’ way to protest taxation without representation, the East India Company’s monopoly, and parliamentary infringement on colonists’ British rights. After

the destruction of the tea in Boston in 1773, destroying tea could signal support for the Tea Party. When, in 1774, Parliament’s Coercive Acts punished Boston and mandated the East India Company be reimbursed for the destroyed tea, burning tea showed solidarity with Boston and resistance to Parliament. Congress’s Continental Association banned tea imports (and all imports from Great Britain and Ireland) beginning December 1, 1774, banned consumption of said goods after March 1, 1775, and banned exports to Britain, Ireland, and the British Caribbean after September 10, 1775. Patriots claimed the Association bound all colonists, whether they signed it or not.3 Hanging, drowning, and burning tea symbolized conformity to the Association, support for Congress, and acceptance of Patriot legitimacy. The Association was the most impor tant expression of pre-war support for the Patriot cause and America’s founding attempt at prohibition. This was one set of ways tea mattered.

Like Prohibition 150 years later, the tea ban was a failure. It failed because of another way tea mattered: as a drink for North America’s growing consumer classes. Because of this, Patriots enforced their ban on tea in word more than deed. Merchants sold tea under the counter, and colonists drank it in private. The boycott fizzled. When Congress re-authorized tea in April 1776, it reasoned that so many colonists ignored prohibition that the ban was meaningless. Like the colonial officials who had tried enforcing the ban on trade with French Caribbean fifteen years earlier, Patriots found colonists had a greater appetite for consumption than politics.

Tea was no less symbolically impor tant for this, and tea’s central, symbolic role in the Continental Association linked to other issues, such as how Patriots mobilized the populace and controlled the distribution of information. Signing the Association functioned like a test oath, even as Patriots policed actual consumer compliance lightly. Checking whether colonists lived up to their claims about not consuming tea and British manufactures would have alienated the populace. By contrast, news of tea protests, emphasizing popular enthusiasm, printed in Patriotic newspapers, and distributed in the new Patriotic postal system, could build support for the “common” cause. The Association was signed in a public performance designed to mobilize the public. Tea burnings were often reenacted a second time in print. Even if townsfolk did not burn all their tea and no one in power ever heard of their protest, the spectacle acted out Patriotism and built a sense of shared experience. But one must read Patriotic accounts of these events with care.4

Tea protests were not signs of American “national consciousness,” as Timothy Breen argues.5 Abstention did not make US citizens. Breen, one of the most influential scholars on the intersection of consumption and politics in the American Revolution, brings new insights to the study of consumer poli-

tics. His work, however, relies heavily on examples of colonists denouncing tea and other consumer goods. These denunciations usually occurred only when a colonist was caught. But is being caught evidence of the ban’s enforcement? Or of its violation? Breen does not say, but the few who were caught imply a larger body of consumers who were not. Breen also relies on Patriotic newspaper reports without any awareness that Patriots, like other political actors, presented self-ser ving accounts of events to the public. Tea renouncements and Patriotic essays were public speech about non-consumption, precisely the ideological content from which Breen attempted to distance himself. Much of this speech used the idea of virtue to connect private non-consumption to the public good, but the evidence that colonists were virtuous enough to affect the public weal is lacking. Breen provides little evidence for what colonists did about the things they supposedly boycotted—not a single merchant’s papers are consulted, nor are diaries used to show how colonists behaved during non-consumption. Yet appreciating the gulf between public pledges and private commercial and consumer behavior is fundamental to any understanding of the revolutionary era boycotts or the Association.

Histories of the Association usually ignore how non-consumption worked on the ground. Without this, how can we say that non-consumption “mobilized people”? Mobilized whom? To do what? To what degree? To what end? The Patriot wish that non-consumption were popular is not proof that it was. If such mobilization created a “national consciousness,” why would that be an American one? The road from destroying the tea to the “making of America” or declaring independence was indirect, and the bonds of identity and ideology that would unite Americans were only just begun. Here, Breen “assumes the nation before the fact.” The emergent United States was contested and changing. It included twelve colonies in 1774 and added Georgia and parts of Quebec in 1775, while declining to aid rebels in Nova Scotia and remaining strikingly friendly to Bermuda. It excluded Boston in 1775, lost Quebec and New York City in 1776, and omitted Florida for a generation. It is not the America we know. Late colonial tea politics played out among fellow Britons and were played out before US independence.6

The Association constituted economic policy, with the boycott often seen as a way to coerce Britain economically. For merchants, the most impor tant provisions of the Association were its bans on trade with Britain, Ireland, and the British West Indies, and its ban on the slave trade. This, and the antimerchant tone of some Patriot rhetoric, has led some scholars to see a farmer-versus-merchant or plantation-owner-versus-merchant dynamic in the Association.7 In this reading, farmers and plantation owners used the Association to claw back wealth from merchants.

Patriot enforcement of the Association certainly focused on merchants. But Patriots made compliance in merchants’ self-interest. Surviving committee records suggest that Patriots generally did not inspect merchants’ books without suspicion or cause. A merchant’s ledger might contain embarrassing information about other Patriots and was best kept shut. Committees rarely sought out individual consumers for violations. Congress and the committees never admitted to turning a blind eye, which would have sapped the motivation of the true believers who boycotted sincerely. Yet few, if any, of the colonists to whom merchants recorded selling banned tea in 1775 were caught simply because Patriots rarely looked.8 Patriots talked against tea but enabled those merchants to continue selling what they had on hand. The main barrier to selling tea was limited supply, not Patriotic action against retailers or lack of colonial demand.

This is to say that non-impor

tation was an “effectual security” against nonconsumption (the logic behind the Boston Tea Party), despite Congress’s claim that it was the other way around.9 Congress flattered colonists by saying it relied on their virtue, and could point to its own success blocking new imports as “proof” that colonists were virtuous non-consumers.

The Association banned all tea (no matter when or from whence it arrived), making it a totem. It banned most other goods by place and time: woolens were not banned, just British and Irish ones imported after December 1, 1774. The Association thus allowed a version of some of the most-consumed imports (cloth, sugar, coffee, and rum) to be imported and sold.10 Looking at a merchant’s ledger, it is impossible to tell whether the “coffee” or “merchandise” consumers bought complied with the Association (or with British trade regulations). Only tea was banned, no matter when and whence it came.

Consider, by way of contrast, Madeira wine, which one imagines could have been a bigger part of boycott politics. British merchants dominated the Madeira trade. Parliament taxed colonial wine imports. And the Association banned wine imported from the “Wine Islands.” Madeira was a distinct type of wine, meaning that a ban on wine from the island of Madeira was, in effect, a ban on Madeira as a commodity. Boycotting Madeira could have become a symbolically straightforward way to engage in consumer politics. It was not. For non-consumption applied only to wine imported after December 1, 1774. Colonists could drink Madeira still on hand, which was convenient since colonists preferred to buy Madeira young and age it themselves. So they could drink older wine they had already aged and wait out the Association as they aged their youngest purchases. In October 1775, Thomas Jefferson settled his bills upon leaving Philadelphia after the Second Continental Congress. This

included paying his Madeira tab, which he accrued while non-consumption was in effect. Jefferson was scrupulous about the Association and took care not to consume tea and other banned goods during the ban. But there was no contradiction here, as this par ticular Madeir a was permitted.11

No one at consumer protests smashed bottles of Madeira, discarded their sugar canisters, or burned British-made woolens; such goods were allowed for sale and use, if already imported. They may also have been too valuable to destroy. And the articles of the rich: fine clothes, furniture, chariots, and paintings, these baubles of Britain were put away in response to Patriots’ sumptuary orders, not burned. Tea was the lone good to which non-consumption applied without exception. Its boycott became a sign of support for the Association as a whole, and tea and the tea canister became street protest icons in a way that Madeira, rum, sugar, and coffee could not be (it was hard to tell banned and permitted coffee apart just by looking). Even tea was often set aside, not destroyed. This is not quite the boycott we had imag ined.

Individual merchant violators of the Association, especially violators of non-impor tation, did get in trouble. Andrew Sprowle led the Virginia Meeting of Merchants, a sort of chamber of commerce, in signing the Continental Association in November 1774. In December 1775, he was caught ordering goods from Britain. Patriots discovered this from reading his mail, a procedure they reserved for persons they already suspected. Sprowle had attracted suspicion by quartering Governor Dunmore’s troops. His “unfriendly disposition” when answering the Norfolk County committee’s queries left him shunned in August 1775.12 Thus, broader suspicion that he opposed the common cause drew attention to violations of the Association, not the other way around.

Merchants had economic reasons to comply with the Association. The ban on exports to Britain started eight months after the ban on imports, holding merchants’ f uture sales of goods in Britain hostage to their present compliance with non-importation in the colonies. Non-importation from Britain and Ireland, in turn, was easily enforced—local customs ledgers recorded all legal arrivals, and Patriots inspected these books. This motivated merchants. When John Norton’s Virginia arrived in Yorktown with tea in November 1774, Patriots threw the tea overboard; then, for a real punishment, they prevented Norton’s agents from loading tobacco for the return. Norton, who lived in London, begged for forgiveness and thereby secured tobacco cargoes for subsequent ships. His motivation was financial. Delaying non-exportation allowed Virginia merchants to collect large amounts of tobacco this way, effectively collecting debt from the colony’s plantation owners.13 The Association did not curtail New England and mid-Atlantic colonies’ substantial trade with Continental

THE EXCERPT

Introduction

Abolitionist Dreams

On January 20, 1977, President Jimmy Carter expressed his dream of abolishing nuclear weapons. “We will move this year a step toward ultimate goal,” he declared, “the elimination of all nuclear weapons from this Earth.”1 Eight years later President Ronald Reagan echoed Carter’s speech. “We are not just discussing limits on a further increase of nuclear weapons,” Reagan announced. “We seek the total elimination one day of nuclear weapons from the face of the Earth.”2 In 2003 the director of the Arms Control and Disarmament Agency (ACDA) during most of the Reagan administration, Kenneth Adelman, recalled mocking Carter’s Inaugural Address.3 “And then we have our hero who says things really more extreme than Carter ever does,” Adelman remembered, “and he’s unstoppable in doing it.”4

The Carter and Reagan administrations played essential roles in securing the Intermediate-Range Nuclear Forces (INF) Treaty of 1987, which required them to unravel the gray area problem. Due to their limited range and nuclear capabilities, gray area systems were excluded from Strategic Arms Limitation Talks (SALT) and the Mutual and Balanced Force Reductions (MBFR) negotiations about conventional weapons in Europe.5 In August 1976 the Kremlin deployed the first of 441 SS-20 ground-based intermediate-range ballistic missiles (IRBMs) on both sides of the Ural Mountains.6 With three warheads that could

travel five thousand kilometers, the SS-20 engendered fear throughout Europe.7 At the time, the United States and its North Atlantic Treaty Organization (NATO) allies lacked missiles, aside from eighteen French land-based S-3s, that were comparable to SS-20s.8

To arrest the SS-20 buildup, the Carter administration rallied allied support for a multilateral program, the dual-track decision of December 1979, that allowed its successor to approach arms talks with Moscow from a stronger position. In fall 1983 the dual-track decision prescribed the deployment of the “Euromissiles”: 108 Pershing II IRBMs and 464 BGM-109G ground-launched cruise missiles (GLCMs).9 It also recommended arms negotiations with the Kremlin.10

The dual-track decision was successful—but not in the way envisioned by Carter and his aides. They recommended global limitations on US and Soviet ground-based missiles with maximum ranges of one thousand to fifty-five hundred kilometers. If arms talks with Moscow went well, they still planned to station hundreds of missiles in Europe.11 Reagan pursued a more ambitious objective.12 In November 1981 he proposed the “zero option.”13 In return for the cancellation of the Euromissiles, it required the dismantlement of six hundred operational Soviet missiles carrying eleven hundred warheads in 1981.14 A skillful negotiator, the Reagan administration benefited from allied resolve to deploy US missiles in fall 1983, which created bargaining chips to trade for SS-20s. After March 1985 it was also fortunate to engage General Secretary Mikhail Gorbachev, whose concessions broke the INF deadlock.15

Signed in December 1987, the INF Treaty enhanced Western security for thirty years. It prohibited US and Russian ground-based missiles with maximum ranges of five hundred to fifty-five hundred kilometers. By 1991 it required the destruction of 2,692 missiles, including 441 SS-20s. American officials predicted that one hundred SS-20s could annihilate every significant outpost in Europe.16 From 1988 to 2001 six hundred on-site inspections were conducted in the United States, Russia, and Europe.17 “It was a wonderful deal,” Secretary of State George Shultz remembered. It “was the beginning of the end” of the Cold War.18

In August 2019 the United States withdrew from the INF Treaty. Citing the presence of 9M729 (SSC-8) cruise missiles on Russian soil, as well as the exclusion of thousands of Chinese missiles from the accord, the Donald Trump administration labeled the INF Treaty a relic of the bipolar Cold War.19 President Trump proposed trilateral arms talks with Russia and the People’s Republic of China, but the Xi Jinping

government refused to participate.20 Trump also acquired funds to develop ground-based intermediate-range conventional missiles, which could be fielded in 2023.21 Given the threat posed to US and allied security by Russian and Chinese INF-type missiles, there is an urgent need to reexamine the origins of the INF Treaty.

Scope and Research Questions

I have written a history of US foreign relations.22 I trace American theater nuclear policy from 1977 to 1987, when US and allied officials devised and implemented the dual-track decision.23 The epilogue analyzes the ratification of the INF Treaty, the verification regime, and the demise of the agreement in 2019. I explain the perspective of the five basing countries—the Federal Republic of Germany (FRG), the United Kingdom (UK), Italy, Belgium, and the Netherlands—and of the Soviet Union.24 In addition, I reveal how domestic politics and antinuclear movements on both sides of the Atlantic influenced the US and allied approaches to theater nuclear issues.25

I emphasize American relations with the UK and West Germany, the most important NATO allies during the formulation of the dual-track decision and the INF negotiations.26 Led by Prime Ministers James Callaghan and Margaret Thatcher, London had skin in the game. Since 1969 Moscow had proposed limitations on Britain’s nuclear arsenal.27 To keep British forces out of superpower negotiations, Callaghan and Thatcher advocated theater nuclear modernization, a euphemism for deploying a lethal new generation of weapons to Europe.28 Guided by Chancellors Helmut Schmidt and Helmut Kohl, West Germany was instrumental to the success of the basing program. In October 1977 Schmidt also called international attention to the SS-20 buildup.29 Given mounting antinuclear opposition at home, his government unraveled in fall 1982, leaving Kohl to host US Pershing IIs and cruise missiles.30

Relying on fresh evidence, this book sheds light on presidential decision-making, alliance management, and nuclear arms control. It answers important questions. Who was the architect of the dual-track decision? Was the Carter administration an ineffective manager of NATO? How did the American approach to the dual-track decision evolve under Carter and Reagan? Was Reagan a nuclear abolitionist? If so, did he possess a plan to abolish nuclear weapons, or did he improvise throughout the INF negotiations? Was the INF Treaty a product of

contingency and structural forces? Are there lessons that can be derived from the experience of negotiating the treaty that could help contemporary policymakers to constrain Russian and Chinese ground-based intermediate-range missiles?

I utilize a broad definition for theater nuclear forces (TNF) and INF. Both terms are employed to refer to ground-based missiles with maximum ranges of one thousand to fifty-five hundred kilometers. Shortrange missiles could travel five hundred to one thousand kilometers. I use the American definition of strategic nuclear forces, which can fly fifty-five hundred kilometers. They were included in SALT and Strategic Arms Reductions Talks (START).31 I transition from TNF to INF in chapter 4, when the chief negotiator, Paul Nitze, recommended the phrase to dispel European fears of theater nuclear war.32

Reevaluating the Carter Administration

On theater nuclear issues, the Carter administration’s management of the North Atlantic Alliance requires reevaluation. Previous scholars, aside from Edward Keefer and Stuart Eizenstat, neglected its leadership role in devising the dual-track decision.33 Some suggested that Schmidt was the architect of the two-track program.34 The Carter administration, others argued, was an ineffective leader of NATO.35 Postrevisionists, too, omitted the dual-track decision from its achievements.36 Even nuanced studies claim that the Carter administration failed to foresee popular opposition to the dual-track decision.37

The Carter administration learned from the neutron bomb fiasco of 1977 and early 1978, a precursor to transatlantic consultations about TNF arms control and modernization. The neutron bomb was designed to counter a Soviet tank offensive.38 Carter, who preferred to reduce US reliance on nuclear weapons, never wanted the bomb. He failed to scrutinize the plan crafted by US and allied policymakers to trade the neutron bomb for SS-20s.39 Before producing the weapon, Carter demanded that allies announce readiness to deploy.40 Schmidt, who faced domestic antinuclear opposition, never did. In April 1978 Carter deferred production of the neutron bomb, a mistake that contributed to a crisis of confidence in NATO.41 In late 1978 and early 1979, Carter sought allied deployment commitments prior to producing Pershing IIs and cruise missiles.

In addition, US officials embraced a dual-track approach in summer 1978—months before the Schmidt government.42 They foresaw

that a proposal to station missiles in Europe would fuel antinuclear opposition, but they needed bargaining chips to exchange for SS-20s. 43 US strategic nuclear forces—intercontinental ballistic missiles (ICBMs), submarine-launched ballistic missiles (SLBMs), and long-range bombers—were tied up in SALT II. Since 1969 US and allied officials had agreed that British and French nuclear systems were off the table. 44 From 1969 to 1987 American policymakers hesitated to trade away forward-based systems (FBS), aircraft capable of striking the Soviet Union and Warsaw Pact countries with nuclear weapons from bases and aircraft carriers around the world.45 In nonnuclear roles, US dual-capable aircraft were used to counter Soviet conventional forces in Europe. 46 They also enabled NATO allies, such as the British, West Germans, Belgians, Dutch, and Italians, to participate in nuclear operations.47 At Guadeloupe in January 1979, Carter prescribed the essential elements of the dual-track decision, but Schmidt was not ready to act. 48

In 1979 the Carter administration shaped the deployment package, arms control strategy, and relationship between the two tracks.49 US policymakers, including National Security Adviser Zbigniew Brzezinski and Secretary of State Cyrus Vance, cooperated to rally allied support for the dual-track program.50 They provided deft leadership in NATO’s High Level Group (HLG) and Special Group on Arms Control and Related Matters (SG), the bodies that fleshed out the basing program and arms control approach. To persuade reluctant allies to host US missiles, Carter and his aides compromised on subsidiary issues. However, the dual-track decision reflected Carter’s—not Schmidt’s—thinking about détente and deterrence.51 Schmidt wanted a zero option solution, which would cancel the unpopular basing program. In December 1979 allied policymakers accepted the US argument that missile deployments would go forward regardless of the results of negotiations with Moscow.52

Patience and Perseverance

Without Reagan, the historian James Graham Wilson writes, “there would have been . . . likely no INF Treaty.”53 In fall 1981 Reagan embraced the zero option based on principles that were developed prior to January 1981.54 First, Reagan was predisposed to support proposals that reduced nuclear weapons. “This idea that Reagan came to some new appreciation of arms control,” Assistant Secretary of Defense

Richard Perle recalls, “is rubbish.”55 Second, Reagan was a seasoned negotiator who relied on his experience as the former president of the Screen Actors Guild (SAG).56 To strengthen America’s bargaining position and offset the SS-20s, he aimed to deploy the Euromissiles. In November 1981 he also predicted that horse trading would be necessary in Geneva.57

Third, Reagan was a hardline anticommunist who distrusted the Soviet leadership and feared it would violate a potential deal.58 Given the road-mobile SS-20s in Europe and Asia, Reagan envisioned a global agreement. More ambitious, he hoped to verify the death of the SS-20 program with unprecedented on-site inspections.59 “Our reconnaissance satellites can keep a reasonable count on how many missiles the Soviets have on hand,” Reagan explained in March 1978. “But there is no way without on site inspections (which the Russians will never agree to) to verify whether the Soviets are indeed complying with the [SALT II] treaty.”60 In 1987 Gorbachev accepted Reagan’s proposal for on-site inspections.

In November 1981 the Reagan administration proposed the central provision of the INF Treaty, the zero option, but it lacked a coherent strategy to achieve its goal.61 On one hand, the State Department was amenable to horse trading. It suggested an offer to reduce INF to the lowest possible level. On the other hand, the position of the Department of Defense (DOD) is misunderstood. Secretary of Defense Caspar Weinberger’s aide Perle did not monopolize theater nuclear statecraft.62 Reagan made final decisions on INF issues, and he often rejected Perle’s advice. Weinberger and Perle were also serious about the zero option—it was just a take-it-or-leave-it offer.63 “I am not opposed to arms control outright,” Perle later clarified. “If we are in a negotiating situation, we should make proposals that are in our interests and stick by them. Ronald Reagan was a real hero in this regard.”64

From 1981 to 1983 the Reagan administration’s approach to the INF negotiations was more effective and open-minded than existing scholarship suggests.65 During this period American policymakers never expected to secure the zero option, but they achieved their secondary objective in fall 1983, when NATO allies deployed the Euromissiles. Equally important, the zero option was not a take-it-or-leave-it proposition. Reagan offered to eliminate INF in phases under an interim accord.66 In November 1983 he proposed an equitable INF agreement, a global ceiling of 420 warheads on missiles.67 There were limits to Reagan’s flexibility as well. Like the Soviet leadership, he never authorized

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