Following the New York grand jury indictment of Donald Trump in March on false business records and campaign finance violations I was not alone detecting a sour wisp of anti-climax. A felony nexus with a misdemeanor does not feel proportionate to dealing justice to a president who has been, inter multi alia, impeached for incitement to insurrection.
But the impeachment is critical to understanding what kind of precedent we are setting with this case and how criminal law applies to the chief executive of the United States. The New York indictment is naming a former president—that is, a private American citizen—for allegations that predate his term in office. This sidesteps, uneasily, a still-unanswered question in more than 200 years of American jurisprudence: whether the President of the United States can face criminal charges for actions taken while in office.
The Trump indictment is unique: no person who has held the executive office has faced criminal prosecution. That is true. But there is an extensive legal history behind this unresolved question that explains in part why the New York case may be the best one to bring against Trump—and why other cases, such as the Georgia election tampering investigation, pose extremely problematic questions we may not want to resolve.
The New York Trump case is not complicated. As a candidate for president, regulated by federal election law, Donald Trump made payments to three separate parties to assure their silence about alleged infidelities he committed. These payments were then hidden as business expenses rather than campaign contributions. All of these actions took place before Trump assumed the presidency on Jan. 20, 2017, that is, when he was still a private citizen.
The fact pattern is important because they distinguish the case from other scandals, crimes, and misdemeanors allegedly committed by Trump and past presidents.
The urtext for modern presidential corruption is, of course, Watergate. The Justice Department Special Prosecutor, Federal Bureau of Investigation, and the Judiciary Committee of both House and Senate all asserted jurisdiction of one kind or another as the break-in and cover-up were investigated. The government charged 69 former government officials with crimes involving Watergate resulting in 48 guilty verdicts. Archibald Cox won a crucial case in the Supreme Court forcing the president to release the infamous tapes recorded inside the Oval Office.
But, importantly, the Watergate grand jury named President Richard Nixon an unindicted co-conspirator, recognizing Nixon’s role in the crime without actually charging him. That left the question about indicting a sitting president unanswered. Wanting to avoid a lengthy high-profile court fight to settle the issue, Special Prosecutor Leon Jaworski (replacing Cox after the Saturday Night Massacre) determined that the only recognized constitutional authority in the case of alleged criminal conduct by the president was the House of Representatives exercising its impeachment powers. He surrendered his case and its evidence to the House Judiciary Committee which proceeded with an impeachment vote that destroyed Nixon’s political support and forced him to resign.
In the Monica Lewinsky affair, Independent Counsel Kenneth Starr, while investigating allegations of sexual harassment that predated Bill Clinton’s presidency, stumbled across evidence Clinton had allegedly committed subornation of perjury while in the Oval Office. Starr, too, referred the lurid case to the House of Representatives, essentially affirming in practice the Watergate precedent, which resulted in Clinton’s impeachment followed by acquittal in the Senate trial.
The now-established norm of referring criminal investigations of the chief executive to the Congress was extended by Special Counsel Robert Muller to include pre-inauguration actions involving Russian collusion. Trump’s alleged actions, taken as a presidential candidate and private citizen, implicated a sitting president. Muller’s referral of the case to the House, which did not result in impeachment, again implicitly leans against indictment of a sitting president—even for alleged crimes committed before taking office.
Muller cited Justice Department guidelines—and they are just that, they are not federal law or regulation—dictating that a federal prosecutor may not charge a sitting president as his reason for not indicting Donald Trump. This decision unintentionally widened the scope of presumed immunity for the president: once in office, the chief executive is safe from criminal prosecution for actions committed before taking office.
These cases, which serve as political or historical rather than legal precedent, very deliberately side-step an uncomfortable, and undecided, question in U.S. law: How do we hold legally accountable a president who has committed a crime? Implicit in this question are two more that we may not want to answer: Can a president be indicted for actions they took while in office? And, is the president immune from criminal indictment while serving in the office?
These are serious questions nobody should be in a rush to answer because the potential answers are at least as unsettling as leaving crimes unprosecuted. Nonetheless, there is an historical analogue to the New York case that suggests a way for justice to prevail.
That is the case of Spiro Agnew, vice president under Richard Nixon. In 1972, the U.S. Attorney in Maryland developed a powerful case documenting extensive corruption by Agnew as governor of Maryland—that is, prior to his vice presidency. Agnew protested his innocence and asserted he could not be prosecuted as a sitting vice president. The only alternative, under those circumstances, was to refer the case to the House of Representatives for impeachment proceedings. At this time, Watergate was in full saprophytic bloom and the White House did not want to give Congress any practice with impeachment. So the U.S. Attorney struck a deal with Agnew: he would resign, appear in court as a private citizen, and plead nolo contendere to a single felony charge. He paid a fine of $10,000 and was placed on three years’ probation.
In other words, a criminal case was successfully brought against a former vice president for actions taken before he assumed federal office. That is very much what we are contemplating now with Trump in New York.
This has several implications. First is what it says about the other investigations around Trump, particularly the Georgia election tampering case that allegedly occurred while Trump was President. Prosecuting a former president for actions taken while president opens up a potentially huge space for litigation of all kinds which may be in the best interest of the country to avoid. This was an essential element of the Watergate Special Prosecutor’s reasoned decision not to indict Nixon while he served.
The second House impeachment affirms this practice because it included Trump’s alleged Georgia election tampering in the charging document. The Georgia state case would find it difficult to avoid an unwanted court fight over the question of whether impeachment or prosecution is the most Constitutional remedy for criminal actions taken by the president while in office.
So the New York case sidesteps an unsettled question of American law that we may not want to answer, now or ever. If Trump is tried and convicted in New York it will significantly shrink the space of immunity surrounding the President of the United States, serving and former, while preserving freedom of action by the chief executive and Congressional impeachment powers. As we approach our republic’s semiquincentennial, that may be the best outcome we could reasonably expect from this most unprecedented of presidents. It may not be completely satisfying. But it will be an important demarcation containing abusive or illegal executive power, testament that in the United States no individual is above the law and the Constitution.
It’s hard to explain why Emily Bazelon’s New York Times Magazine article, sarcastically titled “Free Speech Will Save Our Democracy,” bothers me, so let me start here: Hannah Arendt was not a political philosopher. Hannah Arendt was a political theorist. She made this clear in an interview with journalist Günter Gaus on West German television in 1964. “I am afraid I have to protest,” Arendt says, not even answering his first question. “I do not belong to the circle of philosophers. My profession, if one can even speak of it at all, is political theory.” This exchange is reprinted on the first page of The Portable Hannah Arendt.
This may seem a peculiar way to start a critique of an earnest article about the implications of public lying, deceit, misinformation, facts, alternative facts, and the truth. But I mention it because Bazelon asserts as fact, not opinion, that Arendt was a political philosopher in order to use her writing to frame her disinformation jeremiad. This is something Bazelon clearly believed and found important. But her own subject disagreed with her and not secretly.
An author writing about the dangers of misinformation should show considerably more humility when talking about what constitutes fact. Or, as she quotes John Stuart Mill, “All silencing of discussion is an assumption of infallibility.”
Bazelon begs this scrutiny by arguing, in effect, that something must be done about all these people saying things that aren’t true. And also by quoting the children of George Orwell who write or say ear-ringing ouroboros like, “[U]se of speech as a tool to suppress speech is, by its nature, something very challenging for the First Amendment to deal with,” and “Free speech threatens democracy as much as it also provides for its flourishing,” and “Campbell Soup Company can’t experience democratic legitimation,” and “The First Amendment value of individual autonomy means we should know who is speaking to us and why,” and “[T]he First Amendment over the last hundred years has mainly become a weapon of the powerful,” and “[D]emocracy needs to protect itself from anti-democratic ideas,” and (Bazelon’s contribution to Newspeak), “[I]t’s time to ask whether the American way of protecting free speech is actually keeping us free.” Neither Hannah Arendt nor Donald Trump wrote or said any of these things.
Bazelon starts with an obscure viral phenomenon. Earlier this year, comments made by think tank types wargaming a 2020 election scenario that included secessionist threats in the Pacific Northwest showed up in an obscure conservative intellectual journal before jumping from YouTube into the gutter of the right-wing infoverse and then vaulting to Fox News. This is a strange place to start given the most obvious, and dangerous, consequences of misinformation surrounding COVID-19. Bazelon makes two mistakes almost immediately, one trivial and one much more concerning. She claims the original intellectual journal article titled “The Coming Coup?” wrote “without evidence” that Democrats were “laying the groundwork for revolution”. The is easily disproven: the author cites publicly available comments about contingencies for a Trump loss transition made by Joe Biden, Al Gore, and Hillary Clinton. (And that sets aside the many presumably non-partisan military officers the author cites in opposition to the president.) She clearly sees “coup fabrication” (her words) as a disingenuous distortion of the original intent of the wargame. But that’s not what the conservative commentator was writing about and in any case, “coup” is broadly defined as “a sudden, violent, and illegal seizure of power from a government,” which includes secession.
The second error is much more concerning. Bazelon’s narrative unfolds as a post hoc, ergo propter hoc fallacy, an implied chain of cause and effect with words taken out of context weaponized by partisans and then spread through a network of right-wing online sites, private organizations, social media outlets, and traditional broadcasters. “By the end of [September 2020],” Bazelon writes, “the fraction of Republicans who were not ‘confident’ that the ‘election will be conducted in a fair and equal way’ hit 65 percent”. This suggests a direct relationship between the misinformation and evolving public opinion. This is not true. In fact, the number was stable at 65 percent from the same question asked in August, before this information water spout spiraled upwards and the second poll was taken. Moreover, there are no other data points that I could find to suggest this number has been growing. And without that comparison, these numbers are worthless, because a single poll is simply a coordinate: alone it tells you nothing about distance, speed and direction. It is true that this number is higher for Democrats and Independents, but without more data determining that relationship, too, is impossible to define.
Bazelon also entertains a hoary myth about the effect of Fox News on political behavior. Known as the Fox News Effect, it hypothesizes that the new appearance of Fox News shifts voting patterns toward Republicans. Unfortunately, the initial study she appears to be referring to, The Fox News Effect: Media Bias and Voting, published in 2005, dismisses this effect in its abstract:
We find no significant effect of the introduction of Fox News on the vote share in Presidential elections between 1996 and 2000. We can rule out an effect of Fox News larger than 0.5 percentage points. The results are robust to town-level controls, state and county fixed effects, and alternative specifications. We also find no significant effect of Fox News on voter turnout. Our results imply that Fox News convinced between 0 and 2.1 percent of its viewers to vote Republican. The evidence is consistent with the view that voters are sophisticated and filter out media bias. Alternatively, voters may display a form of confirmatory bias.
Bazelon’s scatter-shot approach obscures her intent. Much of the article feels like an expanded listicle of dumb things people have said that Bazelon doesn’t like. (This is a tic presenting in writers of the era who seem to have to repeat the insane things we have all witnessed together simply to recognize them as insane. I do the same thing so I am sympathetic.) She interrupts her inventory with a comparative legal brief on censorship and freedom of expression in the U.S. and Europe before ending it with a series of anemic policy proposals. She attacks, among others, big data companies, Donald Trump, Fox News, right-wing fringe web sites, the Supreme Court, and Joel Kaplan. (Never heard of him? Bazelon has only three data points: he participated in a protest against the Florida recount in 2000, serves as Facebook’s vice president for global public policy, and sat behind his friend Brett Kavanaugh during his Senate confirmation.) The only throughline for these disparate rivals is bad information. Which returns us to the initial question: what is going on here? Is Bazelon trying to raise awareness? I think we’ve reached saturation point about the toxic maw of digital culture. Sound the alarm? Same. Find solutions? In part, yes, but nothing too radical, maybe the low-cal censorship favored by Europeans. All of these arguments have been made better by other authors in other fora.
Bazelon provides a précis of American jurisprudence and its protections of free speech from government interference. These are invariably clear and eloquent defenses not just of political expression but also the right to err, even to lie. “As a Nation we have chosen…to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Chief Justice John G. Roberts Jr. wrote recently. It is a shame Bazelon doesn’t take up the case of coal magnate Bob Murray against HBO targeting John Oliver of Last Week Tonight. This slander and defamation suit was dismissed with prejudice. After winning the case, Oliver and what looks like an entire Broadway musical chorus line then sang obscene and completely untrue accusations about the vanquished.
But that leads her to a strange Straw Man argument that dissolves itself without much scrutiny:
The First Amendment doesn’t have a formal role in these situations [decisions made by private companies like newspapers to publish or censor material] but the principle that it’s paramount to protect dissident speech makes them difficult to untangle. If people have the right to peacefully protest against the police, don’t neo-Nazis have the same right to peacefully demonstrate? Why is Tom Cotton’s Op-Ed beyond the pale but not an October by Regina Ip, a legislator in Hong Kong, who defended police officers’ filling the streets and arresting hundreds of pro-democracy demonstrators?
This is not difficult to untangle at all. The answer is obvious: Yes. Yes, people have the right to protest peacefully regardless of what they say. Yes, people have the right to express opinions about the rule of law. Yes, the same goes for a Russian troll engaging in disinformation and a satirist sending up a public figure. Because sometimes you can’t tell the two apart, as China routinely does with The Onion, or Bob Murray does with John Oliver and HBO.
Of course Bazelon would refer to the great bête noire of political speech, Citizens United v. FEC, in which the U.S. Supreme Court loosened restrictions on corporate money given to political causes. She quotes Harvard law professor John Coates that this, and a series of preceding cases, constituted a “radical break with the history and traditions of U.S. law”. In Bazelon’s words, this falsely equates corporate political activity as “akin to the shouting of protesters”.
The shot is so easy to make you might miss it: Emily Bazelon is a paid staff writer of The New York Times Magazine, owned by The New York Times Company, a publicly traded S&P 400 corporation with nearly $1.8 billion in annual revenue. Published, her article reaches more than two million Americans. The New York Times itself engages in direct political advocacy by endorsing candidates for federal, state, and local office and taking editorial positions on a myriad of political issues. It does not act like a corporation giving money to a non-profit Political Action Committees because it doesn’t have to: its business model is built in part on political advocacy. The Campbell Soup Company can’t do that. (I will note here that I have published twice with The Times and was compensated for one of those opportunities.)
Bazelon does not help her case by referring to the Seth Rich case, a conspiracy theory that was broadcast as a news story on Fox News and then spread from there. Fox News retracted the story but other segments on the network did not. Again, this feels like too easy a shot: Emily Bazelon is writing this in The New York Times, which famously spread the baseless conspiracy theory that Iraq was actively developing unconventional weapons in 2002. The same New York Times that is reviewing, but not caveating, its flagship podcast “Caliphate” after Canada arrested the primary source for fraud in connection with The Times’ reporting. The same New York Times that apologized for assigning Bazelon to a news story about Brett Kavanaugh after she had published opinions critical of him.
Nonetheless, Bazelon argues we are in a clear crisis without precedent. So what to do? Bazelon turns first to Europe. She expresses admiration for a kind of censorship lite, a latter-day reincarnation of the paternal benevolence used by old monarchs to quash class conflict. But she cites only two examples of prohibited speech: incitement to racial violence and Holocaust denial. (She somehow misses the notoriously loose libel laws in many commonwealth countries.) I can’t believe I’m checking a Yale-educated lawyer, but incitement and hate crimes areillegal in the United States. They are not protected speech.
We can continue our petty exposure of further error as we examine Europe’s enlightened censorship model. Bazelon quotes Miguel Poaires Maduro, a disinformation observer based in Italy. “Much of the recent authoritarian experience in Europe arose out of democracy itself,” he says. “The Nazis and others were originally elected.”
Let’s stop here. It is not exactly clear which epoque he’s referring to, but since he mentions the Nazis, let’s start there: Nazis were not popularly elected in Germany and neither were the fascist or communist governments that came to power in Spain, Austria, Italy, Russia, Hungary, Poland or Romania during the first half of the 20th century.
Boaires Maduro continues to channel Orwell: “In Europe, there is basically an understanding that democracy needs to protect itself from anti-democratic ideas,” he says. “It’s because of the different democratic ethos of Europe that Europe has accepted more restrictions on speech.” That is plainly absurd. Speech is democratic when it is free and anyone can use it for any reason. When speech is restricted, it is no longer democratic, because the national authority chooses who gets to say what, when, why, where, and how.
Bazelon’s primary evidence for Europe’s enlightened view of censorship is a comparison between the media reaction to the email hacks of the Democratic National Committee in 2016 and that of Emmanuel Macron’s party En Marche! in France in 2017. She approvingly notes the French law imposing a blackout on political news 24 hours before polls open—we’ll leave aside Bazelon’s astonishing endorsement of a government ban on politicalreporting a day before a nationalelection—meant when the emails were dumped, hours before the deadline, the French media simply ignored them.
This argument falls apart before we can finish the story. French law had nothing to do with this outcome: no good news organization would publish unsubstantiated and uncorroborated information with just hours available and in any event 36 hours later the information was effectively irrelevant to the election outcome. The 2016 dump in the United States, by contrast, occurred months before the November election, giving news organizations much more time to report it.
Again it’s important to note something that could easily be missed: in both the French and U.S. cases there were no substantial allegations that the information released by the hacks was false. Here, Bazelon has precipitously overreached: She approves of both French law and media practice restricting political reporting even when the facts are not in dispute. That should disturb everyone. It also demonstrates the slippery slope falling away from our decision to censor things that are not strictly true to a point far below where we can simply dispose of information we don’t like.
As for solutions, beyond an endorsement of vague European restrictions, outright censorship clearly makes Bazelon uneasy. After railing about the right-wing media universe, public lies, viral disinformation, and all the rest, the best solution she can come up with is…more information. She proposes public investment in local news outlets and online sources. She argues for more financial transparency in political ad microtargeting. She doesn’t argue for more “citizen journalists,” a recent phenomenon encouraged by nonprofit news organizations like WNYC, perhaps because she can’t stomach amateurs not getting paid for what The Times pays her to do.
This is not to say that conspiracy theories are acceptable forms of political discourse. But in the end, speech is speech is speech is speech. It is the only thing we have to change minds and thus alter the course of human events. Bazelon’s promoted alternative is the opposite of speech: it is coercion. Even a civil action resulting in mere monetary damages for defamation is reinforced by the police powers of the state. It is extremely disturbing to argue that an untrue thing is worse than the violence required to enforce the truth. Too many people believe that those they disagree with should lose their livelihood for something said, written or thought. That they should be exiled because of words.
In the end, Bazelon is clearly and sincerely worried about the rapid spread of things that are not true. She should reconsider her concern given the glaring untruths evident in her own argument for combating misinformation. Because, thankfully, the American tradition protects her right to err, too. “Arendt understood that what was at stake was far more” than speech, she writes. That is true but for the exact opposite conclusion Bazelon draws from exposing the workings of totalitarianism: that the destruction of free speech enables all the destruction that follows.
Carla Power’s Pulitizer Prize-shortlisted If the Oceans Were Ink, an outsider’s meditation on The Holy Qur’an with the help of a learned Islamic scholar, signals a subtle but seismic shift in our intellectual world. It joins other unmistakable indications that mostly secular Western thinkers now realize they have allowed the belief of a billion people to be defined by a clique and that the popular understanding of Islam has been warped and obverted to the point that the exception has replaced the rule.
I imagine especially for Muslims it is as if everyone thought they were doctors because a friend had a rash, or physicists because they’d seen a car accident. While they understand something from the inside out, everyone else seems to be just peering in from the outside.
I was reminded of this when listening to an interview on San Francisco public radio recently. The host of The Forum on KQED, Michael Krasny, was interviewing Qamar Adamjee, curator of a new exhibition of Islamic Art at the Asian Art Museum. (The relevant portion begins at about the 13:00 minute mark.) Krasny does not so much ask a question as state the cultural and human destruction wrought by the Taliban and the Islamic State. As she struggles to express herself, Adamjee’s response is telling. Those who attack art are doing so for political, not religious, reasons, she says. “It’s easy to pick on religion, it’s easy to pick on the other,” which of course cuts in two directions. She changes the subject: “[The exhibit] allows us to see Islamic culture as a much broader thing than the undifferentiated monolithic mass that comes across to us today.” What she is trying to say is: I want to talk about art and Islamic culture. This art has nothing to do with violence.
The larger point, perhaps missed in a discussion of art, is that the art and culture and belief of Muslims are what is really important. That is a difficult thing to say while a coalition of nations is trying to destroy the Islamic State. But as this recent NPR story by Tom Gjelten also argues, understanding that larger point is also essential to defeat our enemies and to make friends as well.
Carla Power’s honor may be a landmark of that dawning realization but it is not the only example. Another can be found in Garry Wills’ recent essay, “My Koran Problem” in The New York Review of Booksin which he admits that only very recently had he read The Holy Qur’an. This is an extraordinary confession. How could a public intellectual and powerful liberal polemic of such range, virtuosity and experience go so long without understanding one of human civilization’s great texts? “It was ridiculous that I would remain completely ignorant of what a quarter of the world’s people not only believe in but live by (in different ways),” he writes. Beginning sometime after 2003, he continues to struggle with this text “unaided”. Surely Wills could find somebody willing to help him?
On a smaller scale but in more sympathetic vein, Washington Post columnist Courtland Milloy recently wrote about a visit to the Masjid Muhammad, “The Nation’s Mosque” located in northeast Washington, D.C. “If you see nothing suspicious, maybe that’s normal,” his article was headlined. At the mosque he met the imam, a retired U.S. Air Force Master Sergeant. A member of the mosque is a retired U.S. Army Command Sergeant Major. “We should be America’s allies in the fight against extremism,” another member of the mosque told Milloy. Muslims are by far the greatest victims of terrorism around the world. “Instead, we’re on the defensive, always being asked to respond to somebody’s claim that Islam promotes violence.” Again, in Milloy we hear somebody trying to change the subject, to focus on what’s important, which is what is normal.
How did so many overlook this pacific ordinariness, this everydayness, this normality that we all can recognize? Wills writes that he has spent most of his career studying Christian and Jewish theology. Herein is the heart of the problem. I discovered myself how self-limiting one’s own provincial interests can be. Even well-intentioned attempts to learn more lead to a contained circle of works, all cross-referencing each other, each self-delimiting any knowledge beyond the circle. It takes an extraordinary mind or experience to force oneself out and beyond. I am the grateful beneficiary of such an extraordinary experience and extraordinary minds when it comes to Islam.
Wills struggles from this insulating defect, unfortunately comparing the Qur’an to The Communist Manifesto and Mein Kampf, as if the holy text were an operational manual for our enemies. This is exactly wrong. Studying and understanding The Holy Qur’an and Islamic thought is how we understand and know our friends. Western secularists don’t understand what Muslims really believe and how their belief animates their lives. What is normal is important because it is what we have in common to defend against intolerance and barbarism.
But like Wills, we have to start at the beginning. At the beginning is the realization Wills alludes to: that understanding Islam on its own terms is more important than its present political context. When a billion people believe some thing, we have a duty to understand that from the inside out.
If Carla Power’s book suffers a flaw, like any other similar book written by a secular Westerner, it is that she addresses the belief from the outside. But she is studying the Qur’an, which as any Muslim understands is the place to start to understand Islam. There are several excellent guides (in English) to the Qur’an, including Introduction to the Qur’an by M.A. Draz and The Story of the Qur’an by Ingrid Mattson. These both benefit from the authors being Muslim. Additionally, several translations of The Holy Qur’an (also in English) can be found online. I am less familiar with the Sunnah and the Hadith, the actions and sayings of the Prophet Muhammad (peace be upon him) and a major source of Islamic theology and moral philosophy, but translations are also available online.
Like Wills, I admit that these ancient texts are indeed challenging to read unaided and barring a community college or divinity school course most of us must avail ourselves to what we can find in the public domain. To understand what Muslims really believe we have to break out of the confining circle of Western scholarship and read what Muslims write about themselves. Fortunately several books do this and don’t require the assistance of a scholar. The journey is rewarding from the first step.
The gift of a friend, Muhammad Asad’s The Road to Mecca (1947) is a good place to start. The book is at once a philosophic meditation, spiritual quest, and ripping adventure yarn in the old Islamic tradition. Asad was an Austrian convert from Judaism who began his career as a journalist in the Near East. His adventures, which included advising King Saud and the nascent government of Pakistan, rival or exceed those of T.H. Lawrence, Robert Burton and Gertrude Bell. Asad very nearly died of thirst while lost in the desert and was interned as an enemy alien by British authorities even though his entire family perished in the Holocaust. His greatest contribution was a defining contemporary translation, The Message of the Qur’an (1980), into English.
The story of Asad’s conversion is moving. He has returned to interwar Berlin from his latest journalistic exploits in the Near East and he is riding the Berlin U-Bahn with his wife. They note the devastated expressions of their fellow citizens, the deep unhappiness of their lives etched on their faces. There they decide to convert to a system of belief that appeared so much more humane and logical than what they had been raised in.
Who Speaks for Islam (2008) is a misleading title since this book, produced by Gallup and written by Dahlia Mogahed and John L. Esposito, is a very literal survey of what Muslims around the world think about belief, politics, and culture. It is a study of a complex and plural community, but many clear common threads show through: the central importance of family, the rejection of political violence, the concerns about the erosion of traditional cultural norms, the necessity of belief guiding political choices and personal behavior. These findings are not particularly dramatic and indeed could be mistaken for similar surveys in Europe and the United States. But they are critical to understanding the community on its own terms rather than those forced on it by barbarians and xenophobes.
Memories of Muhammad (2008) by Omid Safi, is a kaleidoscopic examination of the legacy of the founder of Islam. Safi argues it is impossible to understand the belief without understanding the man who promulgated it – much as Protestant Christians closely examine the life of Jesus Christ, he notes – in addition to how Muslims remember and honor the Prophet around the world. In the clearest way I have read, Safi illuminates the history of Islam, the Sunni-Shia schism, Sufi mysticism, and even contemporary politics. Born to Iranian parents in Florida, he displays in his home a devotional portrait of the prophet popular in Persian-speaking countries but considered taboo elsewhere – demonstrating the plural and dynamic nature of the community.
Safi by necessity acknowledges contemporary challenges – here he writes against the conventional orthodoxies of the “clash of civilizations” as well as Muslim Occidentalism – but significantly argues that the best way to combat religious strife is to argue for the alternative. Like Adamjee, he wants to change the subject to what’s really important: what real people believe and what belief means to them. And by doing so, he is convinced that it is necessary to talk about and gain a better understanding of Islam and what Muslims believe, which is what the rest of us are just now coming around to.
It is a common trope to accuse others of bias or indifference to attract supporters. But snark aside, these critiques pose the very reasonable question why these different communities of concern and interest exist, why they do care more about some issues than others. The carpers cited above illuminate an aspect of politics we don’t consider that much: why do we believe different things? Why don’t we all think the same way?
This is a substantial issue. I first really confronted it after the attacks on the Charlie Hebdo offices and other targets in Paris. I was profoundly unsettled and upset by that attack, as were many people. But after the initial wave of revulsion, I asked myself why this particular act of terrorism should move me so much when compared to the almost daily acts of terrorism that plague other countries.
This was not a matter of self-justification. When I thought about Charlie Hebdo, I realized that the attack on a beacon of free expression affected me and those I care about deeply. I write and many of my friends write or contribute to the creative arts. The idea that they could die violently because of something they wrote, thought, or created horrifies me. More specifically, if Charlie Hebdo could be targeted, so could they and so could I. This is Voltaire in small writ: the attack killed people who do what I do.
My initial query stands: why do we feel differently about these things? Why are some more concerned about attacks on Christians, say, or Shias, or Mexicans, or women, or children? Why should my concern about Charlie Hebdo deny others similar feelings about different issues? When we array the various concerns and issues that face modern society, it really does seem petty to criticize those who are focused on HIV/AIDS, gay rights, the unborn, exploited children, Palestinians, antisemitism, trafficking, puppy mills, asylees and refugees, drug abuse, detainees, economic inequality and so on.
But that is the essence of the subjective political experience and the moral plurality of a diverse, democratic society. There are more than enough problems we face to go around. It is the measure of a strong civil society that we have enough people and resources and passion to focus on all of them at the same time. While political activists want everyone to agree with them, imagine a country that believed all the same things at the same time. That’s both hard to conjure yet manifest in political reality. Nevertheless, legitimate debate in the arena arbitrates among different interests to determine, collectively, our political priorities and their solutions. Selective choice and moral judgments are fundamental to politics and political progress. Together, we have to determine what is more importantthan another.
What the partisans in some of the arguments I noted above may miss in their pain or outrage is that they need each other to be effective. It is hard for me to imagine a family of a slain son begrudging the attention afforded other families in similar circumstances. But in attacking that attention they unnecessarily divide two communities with the same interest and same goal: ending police violence. It’s the same with the snark over animal rights activists. That denies the profound and limitless human ability for empathy which all political campaigns must harness to succeed. Imagine if they worked together.
More broadly, these differences in opinion and concern are minor when cast in relief against the sea of public opinion and the plurality of political society that gird our public life. We are big enough, we are strong enough, we are rich enough, we are resourceful and creative enough, and we are different enough to solve all the rending problems that face us.
Islamic State fighters in January 2014 (Mohammed Jalil/EPA via Al Jazeera America)
With Iraq on the edge of calamity, a hoary, dangerously stupid idea has again been floated by people smart enough to know better. With primarily Sunni extremists breathing down the Tigris and Euphrates river valley toward Baghdad and the mainly Kurdish north taking local advantage of the resulting power vacuum, the time has come these observers say to cut up Iraq into independent regions based on ethnicity.
This idea has been floated at least since the insurgency of 2005-2006 if not earlier. Critics and some Iraqis complain that the borders were artificially drawn by European colonial officers that ignored ethnic, linguistic and tribal realities. The result was a series of artificial hotchpotch polyglot countries designed to be politically unstable. So of course it makes sense that they should be carved up again — again by those doing it by armchair mapmakers removed from the region — into something that looks like Europe where the French have France and Germans have Germany — Kurdistan for the Kurds, a large Sunni state for the Sunni Arabs, a large Shiite Arab state, and so on.
Except there are a couple of large, demonstrable problems if we think this through. First, it ignores the ethnic reality of the region, which is marbled and faded rather than neatly divided into segregated blocks of mutually opposed antagonists. Ignorant observers see monoethnic polarities (above) where plural blending actually occurs (see below) and conveniently or blithely ignore the same problems that face us today in the current crisis, just in different configurations and proportions: different people figuring out how to order themselves and get along. The U.S. domestic equivalent would be taking the electoral college results from the last election, determining there is no reconciling the two, and then literally dividing the United States along red and blue states after simply ignoring that each election was contested and forgetting the political pluralities contained therein.
This leads me to the second problem. There has never been a single, unitary, state with one ethnic group and one language predominating, ever. Every state, even the most red and most blue, is at some level purple. All countries everywhere throughout history have had to cope with ethnic, linguistic and political pluralities. It is the nature of humanity and political order for people to be different. If we weren’t, we would have no politics, simply “the administration of things”. As long as there has been open communication and trade between nations, different people have lived close to one another and states have had to govern how we live together. (It is why the tower of Babel figures so prominently in the Old Testament.) Even in the modern European nation-state, governments must contend with ethnic, linguistic and religious minorities. We do not entirely segregate ourselves. We cannot be so neatly divided. Only the fanatics — ethnic, religious, and political — believe we can be separated and purified.
Dividing a country like Iraq does two things. First, it essentially cedes to the extremists of the so-called Islamic State its territorial demands. They win. Congratulations. Anyone with the monopoly of violence gets what they want. And second, we give license to the inevitable ethnic cleansing that follows as they force out, or people are compelled to leave, anyone who does not conform to their rule.
I know this to be true because it already happened in the Balkans. A map of Bosnia-Herzegovina shows what occurred before and after the war driven during the 1990s by the Serb-dominated Federal Yugoslav Army. What had been a pluralistic, marbled multi-ethnic state became — with the full consent of the international community as ratified by the Dayton Peace Accords — a radically segregated federation of three largely monoethnic cantons. The country’s federal governing system — championed by many for Iraq — is a corrupt, ethnically myopic hash still under the paternalistic protectorate of the European Union. Bosnians themselves are chafing under its weight and have finally had enough.
(National Geographic)
By contrast in Iraq during 2005-2006, when faced with the apocalyptic bloodletting particularly of Sunni minorities in Baghdad, the surge of U.S. forces effectively stopped the violence and, in effect, compelled the communities to live with each other. I am not yet convinced of the ethnic nature of the current conflict in Iraq — I see it for now primarily as a power struggle between a group of religious fanatics backed by former regime elements and the weak central government they are targeting — so we should not fall for this false narrative. But the strength of national and political unity is all the more important when facing this outside threat — whether it is a political or ethnic insurgency.
All the more reason, too, since in a political context people can be led to live with one another just as much as they can be agitated to kill one another. I am inclined to believe most ethnic conflict is primarily political conflict and requires as much leadership and organization as any other political effort. People do not spontaneously murder their neighbors en masse. They must be mobilized and compelled to do these terrible deeds — witness the former Yugoslavia, Rwanda, Sudan, Burma or anywhere else “ancient hatreds” are alleged to erupt.
The only course when confronted with these centrifugal forces — political, ethnic or otherwise — is to counteract with centripetal force. We have no choice among ourselves than to live with one another, so why would we ask anything less from somebody else? We can help and aid the governments and countries and civil organizations of our friends to build the institutions and societies that will help plural nations to survive and prosper. There are other ways to defeat organizations like the Islamic State. But dismembering a country like Iraq or any other would be an essential loss in the struggle against extremism. Because they are fighting for the same arbitrary and pure abstractions that do not not exist in humanity and do not exist on any map.
I have been critical of President Barack Obama’s rhetoric on matters of war and peace, here and in my recent book. I respect and admire his ease, eloquence, and ability to communicate on virtually all other issues (“Between Two Ferns” was risky and unintuitive, but it is now clearly a contemporary masterstroke of political communications), but when it comes to matters of warfare, force and power he clearly struggles to articulate himself.
Not so in Belgium. Speaking first in Flanders, he captured the tragedy of the First World War while affirming European unity and transatlantic fidelity. Then, in this speech in Brussels, he rallied our allies again in the “battle of ideas” against the aggression of Russia in Crimea by taking on directly the sophistic arguments Moscow has made during recent weeks: that Crimea is no different from Iraq, or Kosovo, or Libya. No, he said, they are different, and here’s why: We actually stand for something. Russia is acting out of naked political interest. It was important not just for somebody to say that out loud, but for the President of the United States to say it. We used to say with more conviction that the office was the leader of the free world. It means something again given the sharp cynical shift in the Kremlin.
It is easy to overlook the symbolic importance of the speech’s location. Belgium is a small, bilingual country historically coveted and overrun by its neighbors. Its own domestic situation has been scrambled by the inability of the language communities (three if you count the German minority in the south) to get along. And yet Brussels hosts both NATO and the European Union, two of the most successful experiments in international comity ever attempted. The President’s themes, heightened in this capital, are subtly broadcast to Europe’s most recent bilingual hot-spot, now pawed by a covetous larger neighbor that once possessed it.
Given this context, we cannot deny the political nature of this speech. It was not simply a statement of abstract principles. It was designed to rally NATO Allies and partner countries to the United States in order to isolate and weaken the current leadership in Russia. In that, the speech uses the power of dozens of states in lieu of force as a bulwark against the violence, real or implied, threatened and applied, by Russia. Given the situation Russia is in — no longer the Soviet Union or leader of the Warsaw Pact, and surrounded by the cowed and abject neighbors of its near abroad — the country faces perhaps its most serious political and economic situation since the end of the Cold War.
It has been argued better by others that NATO’s military position remains strong against Russia. The flip side of the other coin of that argument is that NATO’s expansion has provoked Russia’s reaction. But that ignores how the West has included Russia in the G8, NATO, the OSCE, the WTO and other international organizations, accorded Russia the respect as an equal, all the while preserving peace, security and prosperity among a growing community of democratic nations.
Moreover, we must understand the choice that Russia — or any other country inside or outside the membership of NATO and the European Union — must make about war and peace. The United States has fought many of its former Allies, with Russia, and yet the idea of fighting our friends today and war in Europe is considered an absurdity. The expansion of NATO and the European Union is an unmitigated good. It constantly pushes out the boundary of peace, security and prosperity. That community is for Russia’s taking if only its leadership made the choice to accept it.
Matters of war and peace are inherently political decisions like these. As the president made plain, they are not inevitable, driven by historical exigency, immutable racial hatred, or power dynamics. As I have argued before, political decisions are moral choices, which means we are in control, always.
I was at NATO when Russia invaded its neighbor, Georgia, in August 2008. The action caught anyone not paying attention by surprise. The experts knew it was long in coming. I’m sure the same is for the unfurling crisis in Ukraine, which nonetheless doesn’t help us steer a course away from general war on the Black Sea, the doorstep of the European Union.
At the time of that short, brutal war I remember there were many calls for NATO to intervene and a tremendous amount of frustration that the Allies did not. But a French colleague pointed out to those of us assembled in my division — we were short-staffed during the August holidays — that NATO’s contribution at that point was not to inflame the situation but to defuse it. The European Union, led by French President Nicholas Sarkozy, led the political charge to end the war within a week.
I remember a little-noted post scriptum to that war — NATO’s inadvertent (I think) contribution — that may be useful to keep in mind in this crisis. That was the introduction of the NATO Standing Maritime Group 1 into the Black Sea after fighting had ended. SMG1 entered the Black Sea on a planned and routine patrol — either it was deliberately allowed into this highly primed theater or nobody thought to turn it back — and the Russian reaction was hysterical. After the Russians sank the small Georgian fleet and basically did what they wanted across the country, SMG1 fundamentally altered the force dynamic in the theater. SMG1 really got the Russians’ attention, and it suggests to me that Moscow will never pick a fight with an equal or superior adversary if it can avoid it.
It’s probably obvious, but an excellent commentary by Radio Free Europe/Radio Liberty noted that the territorial grab in Crimea is not an isolated action but opens a second political front for Moscow. The revolution in Kiev was a green light to similarly minded activists in Moscow that thuggish regimes have their weaknesses, especially if the military can be sidelined. By mobilizing the armed forces against Ukraine, Russia both moved to crush the nascent west-leaning government in Kiev and communicated clearly to the domestic Russian opposition what consequences would follow for attempting to duplicate what happened there in Moscow.
This action also plays into the Kremlin’s interests by forcing our eyes off of other crises where it has waning influence, like Syria and Iran. Moscow can continue to back its client state and Damascus can destroy its internal opposition and rebellion (and weaken its neighbors with refugees) while we are diverted by Ukraine and Crimea. But we are powerful enough not to be distracted and must continue to pressure Syria and Iran while also resolving the crisis in Ukraine.
While Russia may look strong at the moment, it’s important to recognize that the country is acting from a position of weakness — and that the country’s action in Crimea is a fundamental and tremendous risk. If the Kremlin fails in Crimea or Ukraine, the weakness of the regime will be virtually impossible to ignore. No amount of propaganda about fighting fascists and the intransigent enemies of Russia will be able to cover for a failure of this kind. And with this failure, the domestic Russian opposition to the Kremlin will feel emboldened to move against the regime just as the opposition did in Kiev. So instead of being in a position of strength, in reality the Kremlin is extremely exposed. When Vladimir Putin fails, he will lose everything. So he can’t afford to fail, which is what makes this crisis so particularly dangerous.
Another reality I learned from the war with Georgia was the entangling nature of Russia’s relationship with the West. I think we were far more worried about this state of affairs than the Kremlin, but it was important and interesting (if not a little infuriating) to stop and deliberate on all the ways that NATO (and more broadly, the United States and the European Union) cooperated with Russia on issues and initiatives of mutual interest. We on the NATO staff literally cataloged all the ways we were working together with Russia, which still has a diplomatic mission on the same compound at NATO Headquarters. At that time, we were working together on overflight rights for resupply to to Afghanistan, nuclear disarmament (both START and the more concrete aspects of securing fissile material), ballistic missile defense, anti-piracy, anti-terrorism, energy security, and the High North. We’re still working with Russia on all those things, more or less — not least or more recent of which was the successful execution of a safe and secure Winter Olympics. All of these issues of mutual interest (and undoubtedly more) are on the table if we escalate this crisis.
It’s important to consider that the political situation in Ukraine may not be as polarized or volatile as it appears. Consider the map at the top of this post. Much as been made about how the country is split between western Ukrainian speakers and eastern Russian speakers. But a view of a linguistic map (and the CIA World Factbook) demonstrates the picture is far more complex than that. First, Ukrainian-speakers and Russian-speakers blend fairly evenly throughout most of the country, especially in Kiev. The exceptions are the extreme west and extreme east. Second, Ukrainian-speakers are the outright majority in the entire country. Only in the south and the far east do Russian-speakers hold something close to an absolute majority, which explains in part why the Kremlin seized Crimea (which includes Sevastopol, home of the Black Sea Fleet), first.
So the larger lesson is: don’t take the linguistic or ethnic divide as concrete or immutable. Nobody has polled the Ukrainians about this situation. Nobody knows how much Ukrainian-speakers and Russian-speakers have intermingled and inter-married. Nobody has even bothered to ask them much about what’s going on in their country. Only the most radical elements are speaking out. Do we want to make decisions about war and peace and secession and rebellion based on what we see on television or have read on the Internet just in the last few days?
What can we do? Other observers, not least of which include individual Allies, have been maddened by the endless emergency sessions of the UN, OSCE, EU and NATO, which have issued a stream of statements but taken no tangible action. Here is what we could do, almost immediately, for Ukraine in its time of need that doesn’t involve military provocation:
Deliver $15 billion in loan guarantees to secure the country financially.
Grant Ukraine and Georgia Membership Action Plan (MAP) status, fast-tracking the countries for NATO membership.
Finalize the Eastern Partnership with the European Union.
Prepare to ship LNG to Ukraine (and Romania and Bulgaria).
Prepare to airlift humanitarian, medical and food supplies to Ukraine.
Impose sanctions on Russia’s leadership.
Prepare to close off European trade with Russia.
It’s important to know that the force differential favors Ukraine in the East-West face-off. While Ukraine may be at a disadvantage right now facing Russia, Ukrainians are fighting on their own territory and with the support of the West. A variety of military options are available to NATO and Ukraine’s European backers. I hesitate to offer them here because I am not an operational or regional expert. But suffice to say NATO controls access to the Black Sea and the North Atlantic, and could control at will the airspace over the Black Sea. The Russian Black Sea Fleet is made up mostly of anti-submarine ships, which are vulnerable to surface combatants and aircraft, and as one observer noted, “The Italian navy alone could easily destroy it.” Any action taken by NATO or even by any individual Ally would fundamentally alter the military balance in this nascent conflict to Russia’s detriment.
But getting to a point I made earlier, that’s what makes this conflict so potentially dangerous. Putin can’t afford to lose. And the escalation ladder goes right up to the nuclear trigger. While I think cooler heads will prevail, and I think it’s possible for everyone to fight without drawing in that option, those are the stakes involved. Indeed, that has to be in the back of everyone’s mind, if for no other reason than that was how one proxy war was brought to a close. The 1973 Yom Kippur War ended when the United States put its nuclear weapons on worldwide alert following a Soviet resupply to the embattled Arab armies. The alert got Moscow’s attention, and, not willing to escalate the crisis, both superpowers forced their proxies to the negotiation table. But in this situation, can we be sure the bluff won’t be called?
Although I wrote this many months (even years) ago, the article is particularly apropos given very recent events in Bosnia-Herzegovina. It documents the activities many young people in the region are making to turn toward each other and articulate a new future for themselves and their countries.
Once again I send my sincere thanks to the editors of The Foreign Service Journal for agreeing to publish this article.
A plenum convened in Tuzla, Bosnia and Herzegovina, on February 9, 2014 (via Osservatorio Balcani e Caucaso)
The past two weeks have been astounding to witness in Ukraine and Bosnia- Herzegovina. While I haven’t been able to follow quite as intimately what has happened in Ukraine, media reporting from that country has been very good. In Bosnia I have several friends, and I heard my colleague and friend Jasmin Mujanovic, a New York-based academic (and apparently inexhaustible tweeter), speak on a panel yesterday to a packed house at George Washington University’s Elliott School of International Affairs about the dynamic events in that country.
It’s been very interesting to note the similarities, as Jasmin’s co-panelist Janusz Bugajski did yesterday, between the two countries. In both countries, citizens took to the streets to protest a sclerotic and unresponsive political system, widespread and petty corruption, and a sluggish economy. In Ukraine and Bosnia, people want closer ties to Europe and the West (if not necessarily the European Union). I would note, as Gene Sharp has noted, that initial protests were sparked — or helped organizers to consolidate demonstrations — around a singular provocative event. In Ukraine, it was President Viktor Yanukovich’s refusal to proceed with closer ties with the European Union that brought thousands of people onto the street. In Bosnia, it was the federal parliament’s inability to issue identity papers and passports, effectively rendering a new generation of children identityless, that brought thousands of mothers out to demonstrate.
And critically, in both countries peaceful demonstrations were set upon by overreactive security services to which the protesters reacted violently. In Bosnia, protesters attacked municipal buildings in almost every major city in the country. In Ukraine, protesters stood their ground and fought back against the security services. In both cases, there were echoes of the first response against Egyptian security in Tahrir Square, when the people had just enough power to counter the force of the government to prevail. This is an important, if unsettling, development. Because in both cases, the government may still have the monopoly of force. It depends entirely on whether the military will side with the government or stay off the domestic battlefield.
But here the two countries diverge. In Bosnia, the initial violence almost immediately abated. It’s clear from those I’ve heard from that seeing the burning buildings reminded too many of the war from 20 years ago and peace was quickly restored. This is an extraordinary development. The Bosnian army or, for that matter, the small European Union force contingent in the country, was never called up.
In Ukraine, it appears that Western pressure — public calls by US civilian and military officials and their counterparts in the European Union and NATO, all of which have worked diligently during the past 20 years to build strong institutional and personal relationships with Ukraine’s military establishment — paid off by keeping the Ukrainian army (for now) out of the political power struggle. That kept bloodshed to a minimum, at least, and avoided the precedent we’ve seen in Egypt of making the military establishment a political kingmaker or outright ruler in the country.
Unfortunately, while the Ukrainians figured out a way to counter the initially violent response of the state, and in such a dramatic way, this essentially means there is no rulebook for the way forward in the country. The opposition, now in control of Kiev and, presumably, the western part of the country, could reach out to the Russian-leaning east and Crimea. But if divisions in the country become acute there is no precedent for the peaceful sharing of power across the entire country. If Crimea wants to join Russia or parts of the country want to break away or become autonomous, it may require the army to enforce union. And why not? Kiev was defended with force and won fairly the same way — that is to say, violently.
But in Bosnia something more astonishing took place and continues to take place. People have abandoned violence entirely to assemble spontaneously in municipal “plenums” and issue collective demands to their own local authorities. This has led to the resignation of at least five cantonal governments. Bosnia’s “federal” government structure, imposed by the Dayton peace accords, is Byzantine and bloated to an extreme. Exhausted and exasperated by this internationally imposed, ethnically dominated, and thoroughly corrupt system, Bosnians are now asserting their own, direct, democratic axis of power to demand that their government respond to them and their needs.
It is important to note, particularly in the context of the regional and linguistic divide in Ukraine, that the protests in Bosnia have asserted themselves as Bosnian rather than ethnic, religious or linguistic. This is a critical development. While limited to the Federation, Bosniaks and Croats have reached out to Serbs in the Republika Serpska and have been rewarded by several individuals and organizations rallying to them in reaction to a political system that helps none of them and punishes all of them equally. While I’m sure there are some who are trying to make the same argument in Ukraine, I think the dividing line is far more stark in that country.
While the concept of the assembly is as old as democracy, it is amazing that the Bosnian plenum is so fresh and new to this wave of popular uprisings against thuggish and sclerotic regimes. De Tocqueville wrote admiringly of American civil society and our town hall culture. Hannah Arendt wrote about citizens’ assemblies (she unfortunately wrote about the early “soviets”) as a unique expression of democratic power and direct governance. She also wrote about the concept of politics as an open space where people could gather to discuss issues of common concern — the more open, the more free and dynamic a political space is. That is exactly what we are witnessing in the Bosnian plenums.
What makes them more extraordinary is that the plenums themselves are opening a political space between the people and their own, nominally democratic and elected governments. The Dayton constitution, exacerbated by ethnic chauvinism and sheer political myopia, had simply closed off politics to most Bosnians. The plenums have very effectively crowbarred open the political space again. Where once we saw Solidarity seated on one side of the round table from the Communist Party in Warsaw — forcing the political space open between the people and their government — today we see the Bosnian plenums assembling down the street from the governments that purport to represent them in Sarajevo, Tuzla, Zenica and elsewhere.
As a result, I am more optimistic about events in Bosnia than I am in Ukraine. I am not fatalistic about what will happen on the Black Sea, but I am concerned that the recourse to violence there will beget more violence. The protesters in Bosnia recognize their power in the plenum. That is an extraordinary, unique and genuine contribution to political and democratic development that, if successful, should be a model for us all to emulate.
The book is a testament to the courage of the members of the group who used creative means to attack the regime and status quo of Vladimir Putin’s Russia — currently enjoying the world’s attention in Sochi during the winter Olympics.
I send my sincere thanks to the editors at the L.A. Review of Books for publishing my review.
The gift of a friend, 
James Thomas Snyder 