29 Jul 2011 | Uncategorized
Emily Badger speaks to Geoffrey R Stone on what could be the US’s single most important civil liberties issue in the age of the War on Terror
First Amendment scholar Geoffrey R Stone wrote for Index back in 2008 that the American public’s right to know had been one of the greatest casualties of the Bush Administration. A previous colleague of Barack Obama at the University of Chicago Law School, Stone had high hopes that the new president would reverse many of his predecessor’s damaging policies. That has not exactly been the case. This week, Stone sat down with Index to assess Obama’s record on transparency, which, he concludes, may be the single most important — and fragile — civil liberties issue in the age of the War on Terror.
Index: When you wrote for Index at the end of the Bush Administration, the state of the public right’s to know had largely been damaged by government secrecy. At the time, what were you hoping would happen under the Obama Administration?
Stone: I was hopeful that when President Obama took office he would have a much more open sense of the importance of the actions of government being made transparent to the American people. Certainly, that was a theme in his campaign. So I think it was reasonable to expect major change in some of the Bush-era policies.
Index: In some cases, that has happened, particularly around changes Obama has made to Freedom of Information policy and classification standards.
Stone: Right. Most notably, the President has changed the standard for the classification of information. Under President George W Bush, the prior standard was expanded to allow greater classification, so that any material that, if disclosed might have harm to the national security, was to be classified. Under the Clinton Administration, and now under the Obama Administration, the standard was changed to say that classification was permissible only if the potential harm to the national security outweighs the value of the disclosure of the information to the public, which is a more appropriate way to strike the balance between the need of the public to know, and the need of the government to keep things confidential. So, in some respects, the Obama Administration has made significant progress. But in lots of other areas, I think it’s been disappointing.
Index: Can you walk through those areas?
Stone: One of those areas has to do with journalist-source privilege. Forty-nine states and the District of Columbia provide a privilege to journalists not to disclose the identities of confidential informants, either at all or unless the government could show a very substantial justification and need for the identities. The federal government does not have such a privilege. Obama was a supporter of the bills in Congress to create a federal privilege, but since taking office, he’s been much more skeptical about it and has essentially suggested it should not be adopted if the information would be potentially harmful to national security. As a consequence, nothing has happened, no legislation has been enacted, and that’s quite disappointing.
Another area where he’s been less transparent than people had hoped had to do with the issue of whistleblowers. Federal law does not give any clear protection to whistleblowers in the national security context, and yet there are certainly circumstances – for example, where a whistleblower reveals information about illegal government policies, or reveals information about highly wasteful or incompetent government action, or simply reveals information that’s of grave importance to the public — where there should be a clear privilege for whistleblowers to expose that information without risk of prosecution. Once again, the legislation simply has been stalled in Congress. The President has not made any effort to push it along, and indeed has prosecuted several people in circumstances that are problematic.
The third area where he’s been disappointing has been in State Secrets. The State Secrets doctrine has been around almost 60 years, and it means that the federal government can refuse to reveal information in litigation if the information may be harmful to national security, and indeed can simply close down the litigation if it feels it can’t adequately defend itself without revealing the information. If, for example, someone sues the government claiming that the National Security Agency’s surveillance program initiated under President Bush violates federal law, what the Bush Administration did was to essentially assert that that litigation could not go forward because the only way that we could defend the legality of our policy was by revealing information to the court that would, if revealed, harm national security. And the Bush Administration took the position that judges should simply defer to the assertion by the government that there would be this damage. At the very least, it was expected that the Obama Administration would take a much more reserved approach with respect to the use of the State Secrets doctrine and would approve legislation that would limit the application of the doctrine to situations where the judge himself is in a position to evaluate the degree of potential danger to the national security. But, nothing has happened on that, again. The Administration has not moved forward on it and has indeed continued to assert the State Secrets doctrine in situations not dissimilar to that of the Bush Administration.
Index: You’ve mentioned that there are several areas in which Obama’s actions in the White House have been very different from what he said he believed when he was a senator. Do you think that’s because all of these issues look different when you’re looking at them from the White House, or because as president he’s been influenced by people with different views within the security world?
Stone: There are a lot of factors that enter into play. One of them is the sense that, “well now my guys are in charge, so we’re going to behave, so we trust ourselves to do well, and the public should trust us to do well, even if you couldn’t trust George Bush to exercise good judgment on these matters.” So one part of this is that when you’re in a position of authority, you believe your motives are good, and therefore there’s no need for a check on your behaviour. That’s a natural phenomenon, it happens all the time, and I think it plays a role.
Part of it may be that you have a better appreciation of the complexities of the situation than you did before you were inside, and that with that greater appreciation, you in fact wisely changed your position, because you recognised it’s not as easy to do the things you thought should be done when you were outside the Administration.
A third factor is politics. Some of these [positions] would appear to be politically weak on national defence, and even though you believed it was the right thing to do, you might decide that to actually do them when you’re the president would cost you support. Your enemies would characterise you as being ineffectual when it comes to protecting the nation from external enemies. And therefore, you don’t want to expose yourself to that kind of attack, even though you still believe the right thing to do on the merits of the issue, as opposed to larger issue of electability, would be to change the law.
Fourth, there are relationships with other people in your Administration that you have to be cognisant of. You don’t want to alienate unnecessarily – even though you’re the boss – people in your administration, like members of the military or Defence Department by doing what you believe is the right thing and they believe is the wrong thing. You may believe you’re right but decide “I don’t really want to alienate all these people by overriding what they think is their better judgement on these matters.”
There are lots of reasons why these changes [in position] may take place, and some of them are better than others. But I suspect in varying degrees, all of them play a role.
Index: Particularly around the Thomas Drake case, there has been a lot made out of the fact that Obama has been a more aggressive pursuer of whistleblowers than any of his predecessors. Is it fair to characterise him that way, or is that more of a statistical anomaly given that he inherited many of these cases from the Bush Administration?
Stone: I think the latter. My guess is that Obama is not more aggressive; it’s just that he has more cases that are holdovers from situations that arose in the prior Administration. I have no reason to believe that he’s actually being more aggressive than the Bush Administration would have been in the same circumstances.
Index: Do you think that since the administration is actively pursuing the handful of whistleblower cases it has to essentially create a chilling effect on other would-be whistleblowers?
Stone: I think that’s exactly right. There’s no real need to punish these people –– they’re not going to be in the position again to be whistleblowers. If nothing else, they’ve been fired, and never again given a security clearance. So, the punishment of them, and the pursuit of them, is clearly designed to deter others in the future from following their example. You don’t want to be prosecuted and investigated and have your life exposed in the press, and that’s going to make people who are tempted to be whistleblowers to think twice, and three times, before they actually act on it. I think the purpose here is much less the prevention of harm by these people in the future, it’s really about sending a message to other government employees not to do this.
Index: You’ve written a lot about how in past wartimes, the US has made some bad decisions restricting civil liberties – but that we’ve always snapped out of it and later restored rights that were taken away during wartime. The War on Terror seems like a different situation, in that it may not have an obvious end. Given the pattern throughout US history, should we be concerned now that we may be giving up some rights, and it won’t be clear when the time has come that we can have them back again?
Stone: I’ve always been skeptical of the notion of it being a “war without end.” When you were in the middle of World War II, or the middle of the Civil War, you didn’t know when it was going to end. You only knew when it was going to end after it was over. It’s true this is not a conventional war where you can defeat the enemy in as neat a way as you could by capturing the Confederate Army, but I suspect this war will end. And I think the rhetoric of that is blown too much out of proportion on both sides – among those who say “we can’t mess around here because it’ll be a life-and-death struggle as far as the eye can see,” and those who say that “there won’t be an end to this, so we have to be especially wary.” I’m much more closely aligned with the latter. If you believe it’s an unlimited war, or at least a long war, then the message you should take from that is not that we should pull out all the stops –– do whatever you can to win this war, civil liberties be damned –– but that we should be especially cautious.
If you ask, “What are the freedoms that we’ve given up as a consequence of 9/11 thus far?” it’s actually not that easy to identify specific things that are egregious. It’s not like the Civil War, where there was a suspension of habeas corpus throughout most of the United States. Or World War I, where there were prosecutions of anyone who criticised the war or the draft. Or World War II, where we had the Japanese internment.
The issues that are most threatening are the questions of transparency. Because the government can’t any longer suppress dissent, it has an even greater political need to prevent the public from knowing things. Whereas you could once control public discourse by making it a crime to criticise the government, you can’t do that any more, which means you’ve got to really do what you can to prevent people from criticising the government. That’s the instability that’s created here that’s most troublesome.
Guantanamo is a serious concern, and the temptations we fell into –– both with respect to torture and with respect to detention even of American citizens – were very dangerous. But those practices were abandoned pretty quickly. I think it’s the transparency issue that’s the most important, and potentially the most damaging.
14 Feb 2011 | Comment, News
It is 22 years since Iran’s Ayatollah Khomeini issued a death sentence against the author Salman Rushdie. The author’s critics lost The Satanic Verses battle but won the war against free speech, argues Kenan Malik
‘Shadow of the Fatwa’ first appeared in Index on Censorship, Volume 37, Number 4, 2008
The Satanic Verses was, Salman Rushdie said in an interview before publication, a novel about “migration, metamorphosis, divided selves, love, death”. It was also a satire on Islam, “a serious attempt”, in his words, “to write about religion and revelation from the point of view of a secular person”. For some that was unacceptable, turning the novel into “an inferior piece of hate literature” as the British-Muslim philosopher Shabbir Akhtar put it.
Within a month, The Satanic Verses had been banned in Rushdie’s native India, after protests from Islamic radicals. By the end of the year, protesters had burnt a copy of the novel on the streets of Bolton, in northern England. And then, on 14 February 1989, came the event that transformed the Rushdie affair — Ayatollah Khomeini issued his fatwa.
“I inform all zealous Muslims of the world,” proclaimed Iran’s spiritual leader, “that the author of the book entitled The Satanic Verses — which has been compiled, printed and published in opposition to Islam, the prophet and the Quran — and all those involved in its publication who were aware of its contents are sentenced to death.”
Thanks to the fatwa, the Rushdie affair became the most important free speech controversy of modern times. It also became a watershed in our attitudes to freedom of expression. Rushdie’s critics lost the battle — The Satanic Verses continues to be published. But they won the war. The argument at the heart of the anti-Rushdie case — that it is morally unacceptable to cause offence to other cultures — is now widely accepted.
In 1989, even a fatwa could not stop the continued publication of The Satanic Verses. Salman Rushdie was forced into hiding for almost a decade. Translators and publishers were assaulted and even murdered. In July 1991, Hitoshi Igarashi, a Japanese professor of literature and translator of The Satanic Verses, was knifed to death on the campus of Tsukuba University.
That same month, another translator of Rushdie’s novel, the Italian Ettore Capriolo, was beaten up and stabbed in his Milan apartment. In October 1993, William Nygaard, the Norwegian publisher of The Satanic Verses, was shot three times and left for dead outside his home in Oslo. None of the assailants was ever caught. Bookshops in America and elsewhere were firebombed for stocking the novel. It was rumoured that staff at the Viking Penguin headquarters in New York were forced to wear bomb-proof vests. Yet Penguin never wavered in its commitment to Rushdie’s novel [see pp121—126].
Today, all it takes is a letter from an outraged academic to make publishers run for cover: earlier this year, Random House torpedoed the publication of a novel that it had bought for $100,000 for fear of setting off another Rushdie affair. Written by the American journalist Sherry Jones, The Jewel of Medina is a historical romance about Aisha, Mohammed’s youngest wife.
In April 2008, Random House sent galley proofs to writers and scholars, hoping for cover endorsements. One of those on the list was Denise Spellberg, an associate professor of history and Middle East studies at the University of Texas. Jones had used Spellberg’s work as a source for her novel. Spellberg, however, condemned the book as “offensive”. She phoned an editor at Random House, Jane Garrett, to tell her that the book was “a declaration of war” and “a national security issue”.
Spellberg apparently claimed that The Jewel of Medina was “far more controversial than The Satanic Verses or the Danish cartoons”, that there was “a very real possibility” of “widespread violence” and that “the book should be withdrawn ASAP”. The American academic Stanley Fish, writing in the New York Times, rejected the idea that the Random House decision to pull the novel amounted to censorship. It is only censorship, he suggested, when “it is the government that is criminalising expression” and when “the restrictions are blanket ones”. Random House was simply making a “judgment call”.
There is indeed a difference between a government silencing a writer with the threat of legal sanction or imprisonment and a publisher pulling out of a book deal. It is also true that other publishers picked up Jones’s novel, including Beaufort in America, and Gibson Square in Britain. But Fish misses the point about the changing character of censorship. The Random House decision is not a classical example of state censorship.
It is, however, an example of the way that free speech is becoming more restricted — without the need for such overt censorship. The directors of Random House had every right to take the decision they did. But the fact that they took that decision, and the reasons for which they did, says much about how attitudes to free speech have changed over the past 20 years. In the two decades between the publication of The Satanic Verses and the pulling of The Jewel of Medina the fatwa has effectively been internalised.
After Random House dropped The Jewel of Medina, Sherry Jones’s agent tried other publishers. No major house was willing to take the risk. Nor is it just publishers that worry about causing offence. These days theatres savage plays, opera houses cut productions, art galleries censor shows, all in the name of cultural sensitivity.
“You would think twice, if you were honest,” said Ramin Gray, the associate director at London’s Royal Court Theatre, when asked if he would put on a play critical of Islam. “You’d have to take the play on its individual merits, but given the time we’re in, it’s very hard, because you’d worry that if you cause offence then the whole enterprise would become buried in a sea of controversy. It does make you tread carefully.”
In June 2007, the theatre cancelled a new adaptation of Aristophanes’s Lysistrata, set in Muslim heaven, for fear of causing offence. Another London theatre, the Barbican, carved chunks out of its production of Tamburlaine the Great for the same reason, while Berlin’s Deutsche Oper cancelled a production of Mozart’s Idomeneo in 2006 because of its depiction of Mohammed.
That same year, London’s Whitechapel Art Gallery removed life-size nude dolls by surrealist artist Hans Bellmer from a 2006 exhibit just before its opening, ostensibly for “space constraints”, though the true reason appeared to be fear that the nudity might offend the gallery’s Muslim neighbours. Tim Marlow of London’s White Cube art gallery suggested that such self-censorship by artists and museums was now common, though “very few people have explicitly admitted [it]”.
Islam has not been alone in generating such censorship. In 2005, Britain’s Birmingham Repertory Theatre cancelled a production of Bezhti, a play by the young Sikh writer Gurpreet Kaur Bhatti, that depicted sexual abuse and murder in a gurdwara. There had been protests from community activists who had organised demonstrations outside the theatre.
In the wake of those protests, Ian Jack, then editor of the literary magazine Granta, nailed his colours to the cause of artistic self-censorship; a necessity, he believed, in a plural society. “The state has no law forbidding a pictorial representation of the prophet,” he wrote. “But I never expect to see such a picture.” An individual might have the abstract right to depict Mohammed, but the price of such freedom was too high when compared to the “immeasurable insult” that the exercise of such a right could cause — even though “we, the faithless, don’t understand the offence”. And that a year before the cartoon controversy.
All this reveals how successful the fatwa has been, not in burying The Satanic Verses, but in transforming the landscape of free speech. From the Enlightenment onwards, freedom of expression had come to be seen as not just as an important liberty, but as the very foundation of liberty.
“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties,” wrote John Milton in Areopagitica, his famous “speech for the liberty of unlicenc’d printing”, adding that “He who destroys a good book destroys reason itself.” All progressive political strands that grew out of the Enlightenment were wedded to the principle of free speech.
Of course, few liberals advocated absolute freedom of expression. Most accepted that in certain circumstances speech could cause harm and so had to be restricted. The most celebrated expression of such a view came in a judgment given by the American Supreme Court judge Oliver Wendell Holmes who in 1919 pointed out, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”
What actually constitutes the political and social equivalent of yelling fire in a crowded theatre has been the matter of fierce debate. Politicians and policy makers have, over the years, cited a whole host of harms as reasons to curtail speech — threat to national security, incitement to violence, promotion of blasphemy, the undermining of morality or the spread of slander or libel. Milton himself opposed the extension of free speech to Catholics on the grounds that the Catholic Church was the biggest obstacle to the extension of freedom and liberty.
Yet, however hypocritical liberal arguments may sometimes have seemed, and notwithstanding the fact that most free speech advocates accepted that the line had to be drawn somewhere, there was nevertheless an acceptance that speech was an inherent good, the fullest extension of which was a necessary condition for the elucidation of truth, the expression of moral autonomy, the maintenance of social progress and the development of other liberties. Restrictions on free speech were seen as the exception rather than the norm.
It is this idea of speech as intrinsically good that has been transformed. Today, in liberal eyes, free speech is as likely to be seen as a threat to liberty as its shield. “Speech is not free,” as the lawyer Simon Lee put it in his book The Cost of Free Speech, written in the wake of the Rushdie affair. “It is costly.” By its very nature, many argue, speech damages basic freedoms. Hate speech undermines the freedom to live free from fear. The giving of offence diminishes the freedom to have one’s beliefs and values recognised and respected.
In the post-Rushdie world, speech has come to be seen not as intrinsically good, but as inherently a problem, because it can offend as well as harm, and speech that offends can be as socially damaging as speech that harms. Speech, therefore, has to be restrained by custom, especially in a diverse society with a variety of deeply held views and beliefs, and censorship (and self-censorship) has to become the norm.
“Self-censorship,” as the philosopher Shabbir Akhtar put it at the height of the Rushdie affair, “is a meaningful demand in a world of varied and passionately held convictions. What Rushdie publishes about Islam is not just his business. It is everyone’s — not least every Muslim’s — business.” Increasingly, western liberals have come to agree.
Whatever may be right in principle, many now argue, in practice one must appease religious and cultural sensibilities because such sensibilities are so deeply felt. We live in a world, so the argument runs, in which there are deep-seated conflicts between cultures embodying different values, many of which are incommensurate, but all of which are valid in their own context. The controversy
over The Satanic Verses was one such conflict.
For such diverse societies to function and to be fair, we need to show respect for other peoples, cultures, and viewpoints. Social justice requires not just that individuals are treated as political equals, but also that their cultural beliefs are given equal recognition and respect. The avoidance of cultural pain has therefore come to be regarded as more important than what is often seen as an abstract right to freedom of expression.
As the British sociologist Tariq Modood has put it, “If people are to occupy the same political space without conflict, they mutually have to limit the extent to which they subject each other’s fundamental beliefs to criticism.” In a plural society, it is both inevitable and important that people offend others In fact, the lesson that we should draw from the Rushdie affair is the very opposite.
Critics of Rushdie no more spoke for the Muslim community than Rushdie himself did. Both represented different strands of opinion within Muslim communities. These days the radical, secular clamour, which found an echo in The Satanic Verses, has been reduced to a whisper. In the 1980s, however, it beat out a loud and distinctive rhythm within the Babel of British Islam. Rushdie’s critics spoke for some of the most conservative strands.
The campaign against The Satanic Verses was not to protect the Muslim communities from unconscionable attack from anti-Muslim bigots, but to protect their own privileged position within those communities from political attack from radical critics, to assert their right to be the true voice of Islam by denying legitimacy to such critics. They succeeded at least in part, because secular liberals embraced them as the authentic voice of the Muslim community.
Far from mutually limiting the extent to which we subject each other’s beliefs to criticism, we have to recognise that in a plural society it is both inevitable and important that people offend others. Inevitable, because where different beliefs are deeply held, clashes are unavoidable. And we should deal with those clashes in the open rather than suppress them. Important because any kind of social progress requires one to offend some deeply held sensibilities.
“If liberty means anything,” as George Orwell once put it, “it means the right to tell people what they do not want to hear.” The trouble with multicultural censorship, and self-censorship, is not just that it silences dissenting voices. It is also that it often creates the very problems to which it is supposedly a response. Take the furore over The Jewel of Medina. Not a single Muslim had objected before Random House pulled the book. It is quite possible that none would have, had the publishers gone ahead as planned. But once Random House had made an issue of the book’s offensiveness, then it was inevitable that some Muslims at least would feel offended.
The problem was exacerbated by the actions of Denise Spellberg. Not only did she describe the novel as a “very ugly stupid piece of work” that amounted to “soft-core pornography”, she also went out of her way to draw attention to the book among sections of the Muslim community. In April, she informed Shahed Amanullah, a guest lecturer on one of her courses and an editor of a popular Muslim website, about a new book that “made fun of Muslims and their history”. Amanullah sent emails to various student forums claiming that he had “just got a frantic call from a professor who got an advance copy of the forthcoming novel Jewel of Medina — she said she found it incredibly offensive”. It was almost as if Spellberg was trying to incite a controversy.
Amanullah himself has insisted that The Jewel of Medina should not be withdrawn and has pointed out that “no one has the absolute right not to be offended, nor does anyone have the right to live without the uncomfortable opinions of others . . . we all need to develop thicker skins, more open minds, and a common understanding of the principles of free speech,” he suggested.
But by then the damage had already been done. ”I am disgusted by the inflammatory language Denise Spellberg used,” Sherry Jones told me. “If Random House had simply published my book, I don’t think there would have been any trouble. The real problem is not that Muslims are offended but that people think they will be. It is a veiled form of racism to assume that all Muslims would be offended and that an offended Muslim would be a violent Muslim.”
On Saturday 27 September, just weeks before Gibson Square was due to publish The Jewel of Medina in Britain, the publisher’s London headquarters were firebombed. By an eerie coincidence, the attack took place almost 20 years to the day The Satanic Verses had originally been published. Whether the perpetrators knew the significance of the date no one knows.
Nor is it possible to know whether such an attack would have happened had Random House simply gone ahead with publication without any fuss. There will always be extremists who respond as the Gibson Square firebombers did. There is little we can do about them. The real problem is that their actions are given a spurious legitimacy by liberals who proclaim it morally unacceptable to give offence and are terrified at the thought of doing so.
Shabbir Akhtar was right: what Salman Rushdie or Sherry Jones says is everybody’s business. It is everybody’s business to ensure that no one is deprived of their right to say what they wish, even if it is deemed by some to be offensive. If we want the pleasures of pluralism, we have to accept the pain of being offended. Twenty years on from the Rushdie affair, it is time we learnt this lesson.
Kenan Malik is a writer, lecturer and broadcaster. He is the author of Strange Fruit: Why Both Sides are Wrong in the Race Debate (Weidenfeld/Reuters). His new book From Fatwa to Jihad is published in the spring by Atlantic Books.
