Saturday, February 28, 2015

Above Any Law: The Real Exceptionalism Of The United States Of America

No wonder that The Punter (aka Wisconsin Governor Scott Walker) has targeted the University of Wisconsin-Madison for draconian cuts in state funding. That great institution hosts one of today's greatest exceptionalism-deniers: Professor Alfred McCoy. The rumble in Dumbosphere has targeted McCoy as "dangerous" to the status-quo of drone strikes, black sites, and out-of-control electronic surveillance. If this is (fair & balanced) proof that George Orwell was omniscient, so be it.

[x Salon]
American Exceptionalism Is A Sick Joke
By Alfred McCoy

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“The sovereign is he who decides on the exception,” said conservative thinker Carl Schmitt in 1922, meaning that a nation’s leader can defy the law to serve the greater good. Though Schmitt’s service as Nazi Germany’s chief jurist and his unwavering support for Hitler from the Night of the Long Knives to Kristallnacht and beyond damaged his reputation for decades, today his ideas have achieved unimagined influence. They have, in fact, shaped the neo-conservative view of presidential power that has become broadly bipartisan since 9/11. Indeed, Schmitt has influenced American politics directly through his intellectual protégé Leo Strauss who, as an émigré professor at the University of Chicago, trained Bush administration architects of the Iraq war Paul Wolfowitz and Abram Shulsky.

All that should be impressive enough for a discredited, long dead authoritarian thinker. But Schmitt’s dictum also became a philosophical foundation for the exercise of American global power in the quarter century that followed the end of the Cold War. Washington, more than any other power, created the modern international community of laws and treaties, yet it now reserves the right to defy those same laws with impunity. A sovereign ruler should, said Schmitt, discard laws in times of national emergency. So the United States, as the planet’s last superpower or, in Schmitt’s terms, its global sovereign, has in these years repeatedly ignored international law, following instead its own unwritten rules of the road for the exercise of world power.

Just as Schmitt’s sovereign preferred to rule in a state of endless exception without a constitution for his Reich, so Washington is now well into the second decade of an endless War on Terror that seems the sum of its exceptions to international law: endless incarceration, extrajudicial killing, pervasive surveillance, drone strikes in defiance of national boundaries, torture on demand, and immunity for all of the above on the grounds of state secrecy. Yet these many American exceptions are just surface manifestations of the ever-expanding clandestine dimension of the American state. Created at the cost of more than a trillion dollars since 9/11, the purpose of this vast apparatus is to control a covert domain that is fast becoming the main arena for geopolitical contestation in the twenty-first century.

This should be (but seldom is considered) a jarring, disconcerting path for a country that, more than any other, nurtured the idea of, and wrote the rules for, an international community of nations governed by the rule of law. At the First Hague Peace Conference in 1899, the U.S. delegate, Andrew Dickson White, the founder of Cornell University, pushed for the creation of a Permanent Court of Arbitration and persuaded Andrew Carnegie to build the monumental Peace Palace at The Hague as its home. At the Second Hague Conference in 1907, Secretary of State Elihu Root urged that future international conflicts be resolved by a court of professional jurists, an idea realized when the Permanent Court of International Justice was established in 1920.

After World War II, the U.S. used its triumph to help create the United Nations, push for the adoption of its Universal Declaration of Human Rights, and ratify the Geneva Conventions for humanitarian treatment in war. If you throw in other American-backed initiatives like the World Health Organization, the World Trade Organization, and the World Bank, you pretty much have the entire infrastructure of what we now casually call “the international community.”

Breaking the Rules

Not only did the U.S. play a crucial role in writing the new rules for that community, but it almost immediately began breaking them. After all, despite the rise of the other superpower, the Soviet Union, Washington was by then the world sovereign and so could decide which should be the exceptions to its own rules, particularly to the foundational principle for all this global governance: sovereignty. As it struggled to dominate the hundred new nations that started appearing right after the war, each one invested with an inviolable sovereignty, Washington needed a new means of projecting power beyond conventional diplomacy or military force. As a result, CIA covert operations became its way of intervening within a new world order where you couldn’t or at least shouldn’t intervene openly.

All of the exceptions that really matter spring from America’s decision to join what former spy John Le Carré called that “squalid procession of vain fools, traitors… sadists, and drunkards,” and embrace espionage in a big way after World War II. Until the creation of the CIA in 1947, the United States had been an innocent abroad in the world of intelligence. When General John J. Pershing led two million American troops to Europe during World War I, the U.S. had the only army on either side of the battle lines without an intelligence service. Even though Washington built a substantial security apparatus during that war, it was quickly scaled back by Republican conservatives during the 1920s. For decades, the impulse to cut or constrain such secret agencies remained robustly bipartisan, as when President Harry Truman abolished the CIA’s predecessor, the Office of Strategic Services (OSS), right after World War II or when President Jimmy Carter fired 800 CIA covert operatives after the Vietnam War.

Yet by fits and starts, the covert domain inside the U.S. government has grown stealthily from the early twentieth century to this moment. It began with the formation of the FBI in 1908 and Military Intelligence in 1917. The Central Intelligence Agency followed after World War II along with most of the alphabet agencies that make up the present U.S. Intelligence Community, including the National Security Agency (NSA), the Defense Intelligence Agency (DIA), and last but hardly least, in 2004, the Office of the Director of National Intelligence. Make no mistake: there is a clear correlation between state secrecy and the rule of law — as one grows, the other surely shrinks.

World Sovereign

America’s irrevocable entry into this covert netherworld came when President Truman deployed his new CIA to contain Soviet subversion in Europe. This was a continent then thick with spies of every stripe: failed fascists, aspirant communists, and everything in between. Introduced to spycraft by its British “cousins,” the CIA soon mastered it in part by establishing sub rosa ties to networks of ex-Nazi spies, Italian fascist operatives, and dozens of continental secret services.

As the world’s new sovereign, Washington used the CIA to enforce its chosen exceptions to the international rule of law, particularly to the core principle of sovereignty. During his two terms, President Dwight Eisenhower authorized 104 covert operations on four continents, focused largely on controlling the many new nations then emerging from centuries of colonialism. Eisenhower’s exceptions included blatant transgressions of national sovereignty such as turning northern Burma into an unwilling springboard for abortive invasions of China, arming regional revolts to partition Indonesia, and overthrowing elected governments in Guatemala and Iran. By the time Eisenhower left office in 1961, covert ops had acquired such a powerful mystique in Washington that President John F. Kennedy would authorize 163 of them in the three years that preceded his assassination.

As a senior CIA official posted to the Near East in the early 1950s put it, the Agency then saw every Muslim leader who was not pro-American as “a target legally authorized by statute for CIA political action.” Applied on a global scale and not just to Muslims, this policy helped produce a distinct “reverse wave” in the global trend towards democracy from 1958 to 1975, as coups — most of them U.S.-sanctioned — allowed military men to seize power in more than three-dozen nations, representing a quarter of the world’s sovereign states.

The White House’s “exceptions” also produced a deeply contradictory U.S. attitude toward torture from the early years of the Cold War onward. Publicly, Washington’s opposition to torture was manifest in its advocacy of the U.N. Universal Declaration of Human Rights in 1948 and the Geneva Conventions in 1949. Simultaneously and secretly, however, the CIA began developing ingenious new torture techniques in contravention of those same international conventions. After a decade of mind-control research, the CIA actually codified its new method of psychological torture in a secret instructional handbook, the “KUBARK Counterintelligence Interrogation” manual, which it then disseminated within the U.S. Intelligence Community and to allied security services worldwide.

Much of the torture that became synonymous with the era of authoritarian rule in Asia and Latin America during the 1960s and 1970s seems to have originated in U.S. training programs that provided sophisticated techniques, up-to-date equipment, and moral legitimacy for the practice. From 1962 to 1974, the CIA worked through the Office of Public Safety (OPS), a division of the U.S. Agency for International Development that sent American police advisers to developing nations. Established by President Kennedy in 1962, in just six years OPS grew into a global anti-communist operation with over 400 U.S. police advisers. By 1971, it had trained more than a million policemen in 47 nations, including 85,000 in South Vietnam and 100,000 in Brazil.

Concealed within this larger OPS effort, CIA interrogation training became synonymous with serious human rights abuses, particularly in Iran, the Philippines, South Vietnam, Brazil, and Uruguay. Amnesty International documented widespread torture, usually by local police, in 24 of the 49 nations that had hosted OPS police-training teams. In tracking torturers across the globe, Amnesty seemed to be following the trail of CIA training programs. Significantly, torture began to recede when America again turned resolutely against the practice at the end of the Cold War.

The War on Terror

Although the CIA’s authority for assassination, covert intervention, surveillance, and torture was curtailed at the close of the Cold War, the terror attacks of September 2001 sparked an unprecedented expansion in the scale of the intelligence community and a corresponding resurgence in executive exceptions. The War on Terror’s voracious appetite for information produced, in its first decade, what the Washington Post branded a veritable “fourth branch” of the U.S. federal government with 854,000 vetted security officials, 263 security organizations, over 3,000 private and public intelligence agencies, and 33 new security complexes — all pumping out a total of 50,000 classified intelligence reports annually by 2010.

By that time, one of the newest members of the Intelligence Community, the National Geospatial-Intelligence Agency, already had 16,000 employees, a $5 billion budget, and a massive nearly $2 billion headquarters at Fort Belvoir, Maryland — all aimed at coordinating the flood of surveillance data pouring in from drones, U-2 spy planes, Google Earth, and orbiting satellites.

According to documents whistleblower Edward Snowden leaked to the Washington Post, the U.S. spent $500 billion on its intelligence agencies in the dozen years after the 9/11 attacks, including annual appropriations in 2012 of $11 billion for the National Security Agency (NSA) and $15 billion for the CIA. If we add the $790 billion expended on the Department of Homeland Security to that $500 billion for overseas intelligence, then Washington had spent nearly $1.3 trillion to build a secret state-within-the-state of absolutely unprecedented size and power.

As this secret state swelled, the world’s sovereign decided that some extraordinary exceptions to civil liberties at home and sovereignty abroad were in order. The most glaring came with the CIA’s now-notorious renewed use of torture on suspected terrorists and its setting up of its own global network of private prisons, or “black sites,” beyond the reach of any court or legal authority. Along with piracy and slavery, the abolition of torture had long been a signature issue when it came to the international rule of law. So strong was this principle that the U.N. General Assembly voted unanimously in 1984 to adopt the Convention Against Torture. When it came to ratifying it, however, Washington dithered on the subject until the end of the Cold War when it finally resumed its advocacy of international justice, participating in the World Conference on Human Rights at Vienna in 1993 and, a year later, ratifying the U.N. Convention Against Torture.

Even then, the sovereign decided to reserve some exceptions for his country alone. Only a year after President Bill Clinton signed the U.N. Convention, CIA agents started snatching terror suspects in the Balkans, some of them Egyptian nationals, and sending them to Cairo, where a torture-friendly autocracy could do whatever it wanted to them in its prisons. Former CIA director George Tenet later testified that, in the years before 9/11, the CIA shipped some 70 individuals to foreign countries without formal extradition — a process dubbed “extraordinary rendition” that had been explicitly banned under Article 3 of the U.N. Convention.

Right after his public address to a shaken nation on September 11, 2001, President George W. Bush gave his staff wide-ranging secret orders to use torture, adding (in a vernacular version of Schmitt’s dictum),“I don’t care what the international lawyers say, we are going to kick some ass.” In this spirit, the White House authorized the CIA to develop that global matrix of secret prisons, as well as an armada of planes for spiriting kidnapped terror suspects to them, and a network of allies who could help seize those suspects from sovereign states and levitate them into a supranational gulag of eight agency black sites from Thailand to Poland or into the crown jewel of the system, Guantánamo, thus eluding laws and treaties that remained grounded in territorially based concepts of sovereignty.

Once the CIA closed the black sites in 2008-2009, its collaborators in this global gulag began to feel the force of law for their crimes against humanity. Under pressure from the Council of Europe, Poland started an ongoing criminal investigation in 2008 into its security officers who had facilitated the CIA’s secret prison in the country’s northeast. In September 2012, Italy’s supreme court confirmed the convictions of 22 CIA agents for the illegal rendition of Egyptian exile Abu Omar from Milan to Cairo, and ordered a trial for Italy’s military intelligence chief on charges that sentenced him to 10 years in prison. In 2012, Scotland Yard opened a criminal investigation into MI6 agents who rendered Libyan dissidents to Colonel Gaddafi’s prisons for torture, and two years later the Court of Appeal allowed some of those Libyans to file a civil suit against MI6 for kidnapping and torture.

But not the CIA. Even after the Senate’s 2014 Torture Report documented the Agency’s abusive tortures in painstaking detail, there was no move for either criminal or civil sanctions against those who had ordered torture or those who had carried it out. In a strong editorial on December 21, 2014, the New York Times asked “whether the nation will stand by and allow the perpetrators of torture to have perpetual immunity.” The answer, of course, was yes. Immunity for hirelings is one of the sovereign’s most important exceptions.

As President Bush finished his second term in 2008, an inquiry by the International Commission of Jurists found that the CIA’s mobilization of allied security agencies worldwide had done serious damage to the international rule of law. “The executive… should under no circumstance invoke a situation of crisis to deprive victims of human rights violations… of their… access to justice,” the Commission recommended [PDF] after documenting the degradation of civil liberties in some 40 countries. “State secrecy and similar restrictions must not impede the right to an effective remedy for human rights violations.”

The Bush years also brought Washington’s most blatant repudiation of the rule of law. Once the newly established International Criminal Court (ICC) convened at The Hague in 2002, the Bush White House “un-signed” or “de-signed” the U.N. agreement creating the court and then mounted a sustained diplomatic effort to immunize U.S. military operations from its writ. This was an extraordinary abdication for the nation that had breathed the concept of an international tribunal into being.

The Sovereign’s Unbounded Domains

While Presidents Eisenhower and Bush decided on exceptions that violated national boundaries and international treaties, President Obama is exercising his exceptional prerogatives in the unbounded domains of aerospace and cyberspace.

Both are new, unregulated realms of military conflict beyond the rubric of international law and Washington believes it can use them as Archimedean levers for global dominion. Just as Britain once ruled from the seas and postwar America exercised its global reach via airpower, so Washington now sees aerospace and cyberspace as special realms for domination in the twenty-first century.

Under Obama, drones have grown from a tactical Band-Aid in Afghanistan into a strategic weapon for the exercise of global power. From 2009 to 2015, the CIA and the U.S. Air Force deployed a drone armada of over 200 Predators and Reapers, launching 413 strikes in Pakistan alone, killing as many as 3,800 people. Every Tuesday inside the White House Situation Room, as the New York Times reported in 2012, President Obama reviews a CIA drone “kill list” and stares at the faces of those who are targeted for possible assassination from the air. He then decides, without any legal procedure, who will live and who will die, even in the case of American citizens. Unlike other world leaders, this sovereign applies the ultimate exception across the Greater Middle East, parts of Africa, and elsewhere if he chooses.

This lethal success is the cutting edge of a top-secret Pentagon project that will, by 2020, deploy a triple-canopy space “shield” from stratosphere to exosphere, patrolled by Global Hawk and X-37B drones armed with agile missiles.

As Washington seeks to police a restless globe from sky and space, the world might well ask: How high is any nation’s sovereignty? After the successive failures of the Paris flight conference of 1910, the Hague Rules of Aerial Warfare of 1923, and Geneva’s Protocol I of 1977 to establish the extent of sovereign airspace or restrain aerial warfare, some puckish Pentagon lawyer might reply: only as high as you can enforce it.

President Obama has also adopted the NSA’s vast surveillance system as a permanent weapon for the exercise of global power. At the broadest level, such surveillance complements Obama’s overall defense strategy, announced in 2012, of cutting conventional forces while preserving U.S. global power through a capacity for “a combined arms campaign across all domains: land, air, maritime, space, and cyberspace.” In addition, it should be no surprise that, having pioneered the war-making possibilities of cyberspace, the president did not hesitate to launch the first cyberwar in history against Iran.

By the end of Obama’s first term, the NSA could sweep up billions of messages worldwide through its agile surveillance architecture. This included hundreds of access points for penetration of the Worldwide Web’s fiber optic cables; ancillary intercepts through special protocols and “backdoor” software flaws; supercomputers to crack the encryption of this digital torrent; and a massive data farm in Bluffdale, Utah, built at a cost of $2 billion to store yottabytes of purloined data.

Even after angry Silicon Valley executives protested that the NSA’s “backdoor” software surveillance threatened their multi-trillion-dollar industry, Obama called the combination of Internet information and supercomputers “a powerful tool.” He insisted that, as “the world’s only superpower,” the United States “cannot unilaterally disarm our intelligence agencies.” In other words, the sovereign cannot sanction any exceptions to his panoply of exceptions.

Revelations from Edward Snowden’s cache of leaked documents in late 2013 indicate that the NSA has conducted surveillance of leaders in some 122 nations worldwide, 35 of them closely, including Brazil’s president Dilma Rousseff, former Mexican president Felipe Calderón, and German Chancellor Angela Merkel. After her forceful protest, Obama agreed to exempt Merkel’s phone from future NSA surveillance, but reserved the right, as he put it, to continue to “gather information about the intentions of governments... around the world.” The sovereign declined to say which world leaders might be exempted from his omniscient gaze.

Can there be any question that, in the decades to come, Washington will continue to violate national sovereignty through old-style covert as well as open interventions, even as it insists on rejecting any international conventions that restrain its use of aerospace or cyberspace for unchecked force projection, anywhere, anytime? Extant laws or conventions that in any way check this power will be violated when the sovereign so decides. These are now the unwritten rules of the road for our planet. They represent the real American exceptionalism. Ω

[Alfred McCoy is the J.R.W. Smail Professor of History at the University of Wisconsin-Madison and the author of two recent books on this subject—Torture and Impunity: The U.S. Doctrine of Coercive Interrogation (2012); and A Question of Torture: CIA Interrogation from the Cold War to the War on Terror (2006). McCoy received a BA from Columbia University, an MA from the University of California-Berkeley, and a PhD (Southeast Asian history) from Yale University.]

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Friday, February 27, 2015

If St. Dutch Was "The Gipper," Then Scott Walker Is "The Punter"

The Dumbos have quite a parade of wannabes for the brass ring (POTUS 45) and the latest front-runner is Governor Scott Walker (R-WI). Interestingly, Walker is leery of alienating his Dumbo/Teabagger base by speaking about evo... (the word we dare not name). This Dumbo wants to be the first college dropout in the White House. Walker's base loves his college record. If this is a (fair & balanced) measure of dumbness, so be it.

[x The Nation]
Scott Walker, Science and Iowa
By The Deadline Poet (Calvin Trillin)

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“When he was asked about his belief in evolution, Mr. Walker said, ‘I’m going to punt on that one.’”
— The New York Times

In Iowa, the GOP contains
A bloc of folks convinced that Darwin’s wrong.
So when the subject’s raised, it’s no surprise
If every candidate is fourth and long. Ω

[Calvin Trillin began his career as a writer for Time magazine. Since July 2, 1990, as a columnist at The Nation, Trillin has written his weekly "Deadline Poet" column: humorous poems about current events. Trillin has written considerably more pieces for The Nation than any other single person. A native of Kansas City, MO, Trillin received his BA from Yale College in 1957. He served in the army, and then joined Time.]

Copyright © 2015 The Nation

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Thursday, February 26, 2015

Thanks To Citizens United, We Will Have A Nuclear Winter In November 2016

Here is a preview of the 2016 presidential election. Yuck. If this is a (fair & balanced) portrait of gutter politics, so be it.

[x The Atlantic]
Among The Hillary Haters
By Hanna Rosin

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I don’t hate the Clintons,” says R. Emmett Tyrrell Jr., the founder and longtime editor of The American Spectator and the father of... let’s call it “Clinton disdain.” “I have always seen them as comic figures.” Tyrrell’s particular brand of fun began when, in 1993, he sent a reporter to dig through the Clintons’ tax returns and discovered that they had listed donations of Bill’s old underwear as a tax write-off, valued at $1 each. But as the couple settled into the White House, the allegations grew darker. Later that year, Tyrrell and some cronies hatched the “Arkansas Project,” a $2.4 million effort, financed by the right-wing philanthropist Richard Mellon Scaife, to delve deeper into the Clintons’ past. Whitewater, Troopergate, and the death of Vince Foster were merely the highlights. Over the years, Tyrrell wrote dozens of columns and four books filled with murky Clintoniana. He accused the couple of abusing staff and benefiting from a cocaine-smuggling operation run out of an Arkansas airport. He claimed that Bill had bought women string bikinis in Rio and perfume in Sydney. Tyrrell’s sources were often described merely as “sources” or “sources familiar with the questioning.” But even Tyrrell had his limits. He grew indignant when he thought that Terry McAuliffe, a close friend of the Clintons and now the governor of Virginia, had accused him of calling the president a murderer. A complete falsehood! In fact, Tyrrell had merely quoted The Economist, which had noted a “peculiar pattern of suicides and violence” surrounding “people connected to the Clintons.”

I caught up with Tyrrell recently in a cozy room in his Alexandria, Virginia, home that he refers to as the Lincoln library, owing to the large portrait of Abraham Lincoln hanging above the fireplace. Robert Todd Lincoln gave the painting to his great-great-grandfather Patrick D. Tyrrell for his role in uncovering a crime boss’s plot to steal the president’s corpse and hold it for ransom. At 71, Tyrrell has grown spare and birdlike, resembling an impeccably dressed minister who sometimes forgets to eat. But he still has a bit of 12-year-old boy left in him. Perched on a distressed-leather wingback chair, he took great delight in reading aloud the index of his 2007 book, The Clinton Crack-Up, which he swears he intended as a joke (sample: “Clinton, William Jefferson (Bill), Sex life of, Recreational sex, Zoo sex, Unspeakable sex”). Tyrrell began his career as a gifted and wide-ranging conservative polemicist, but over the years the Clintons came to take up most of the room in his psyche. His weirdest book, 1997’s The Impeachment of William Jefferson Clinton, is an alternative history as it unfolded in Tyrrell’s id, in which Clinton is undone by a series of newly discovered Nixon-style White House tapes. (Tyrrell leaves the specifics to the imagination.) But though The Spectator’s circulation soared from 30,000 to more than 300,000 during the Clinton-scandal years, it fell to 75,000 in the early 2000s and has since plummeted to 16,000, according to Tyrrell. The magazine has also run into financial and legal trouble; you could make a good case that Tyrrell’s Clinton obsession essentially killed it. The Spectator’s most recent print issue appeared last summer, and Tyrrell doesn’t anticipate another until this summer.

Unlike the nastiest Obama hatred—which is typically rooted in a fear of the Other (black, with an Arabic middle name, product of a mixed marriage)—Clinton disdain had a strange kind of intimacy. It was like hating a sibling who was more popular, more successful, more beloved by your parents—and always getting away with something. Tyrrell felt he knew the Clintons, because he’d gone to college with so many Clinton types: draft dodgers, pot smokers, ’60s “brats.” They were “the most self-congratulatory generation in the American republic,” he tells me. “And it was all based on balderdash! They are weak! The weakest generation in American history!”

When Tyrrell writes about Hillary Clinton, he adopts a tone of hostility one might use for an ex-wife. He once ran into Bill and Hillary at a restaurant, for example, and as he recounts it, she “glared at me like a viper about to strike a rodent.” The portrait Tyrrell paints of “the Lady Macbeth of Little Rock” is a little too personal. In his 2004 book, Madame Hillary: The Dark Road to the White House, he describes her when she first arrived in Arkansas as having “baggy” clothes and eyebrows so “thick,” they “would have collected coal dust in a Welsh mining village.” He claims that Hillary hurled “tirades and flying objects” at “Bill’s defenseless skull,” and that when they lived in the governor’s mansion, the household cook declared, “The devil’s in that woman.”

Tyrrell is well aware that, in anticipation of Hillary’s presumed 2016 candidacy, a new generation of journalists is trolling the archives in Little Rock and discovering new tidbits. Last year, for example, The Washington Free Beacon, a scoop-driven conservative online newspaper, uncovered an old journal that had belonged to Hillary Clinton’s close friend Diane Blair, who died in 2000. In it, Blair recounted Hillary’s having told her that for Bill, sex with the “narcissistic loony tune” Monica Lewinsky had no “real meaning,” and that a psychologist had explained that the reason he cheated was because he had been torn between two mother figures as a child.

Tyrrell knows that these new, younger reporters and investigators understand the insatiable appetite for Clinton gossip, and have a sense of what makes a good story. He also recognizes that they have some skills he lacks, such as pushing an item out on social media to help it go viral. Theoretically, he should be able to slip into a comfortable retirement knowing that Clinton disdain has landed in fresh, capable hands. But he can’t, because he also knows that this new generation sorely lacks “a sense of history,” a true grasp of how the Clintons fit into the whole Baby Boomer nightmare of “sexual peccadilloes, lack of regard for the truth, and inability to heroically stand up for anything.”

Up to this point in our conversation, Tyrrell had been polite and jovial, but now he moved out of lazy-Sunday-morning mode and to the edge of his chair.

“They wouldn’t understand that the Clintons used Arkansas state troopers as pimps.”

It was as if someone had propped him up before an audience, pushed a button, and turned him on. More pronouncements poured forth, at least half a dozen, a heated “lest we forget” filtered through the National Enquirer.

“They wouldn’t understand that Clinton and Mrs. Clinton privately hired PIs to harass the women who were sleeping with him.”

“They wouldn’t understand the repeated thwarting of election laws and financial caps on fund-raising.”

“They wouldn’t understand the funny money coming out of China and other parts of Asia.”

“They wouldn’t understand that she stole White House furniture.”

And so on.

When the 2016 presidential campaign was just a glimmer in the distance, at least a dozen conservative organizations had already dedicated themselves to Hillary Clinton’s defeat. They are a combination of opposition-research shops, media outlets, and grass-roots activist groups. A couple have stationed staff in Little Rock to rifle through files in search of something new—or even something old that can be framed in a newly relevant way.

In the 1990s, Hillary Clinton famously complained about the “vast right-wing conspiracy” that was out to get her and Bill. But at the time it was really more a small, ragtag band of conspiracy-minded compatriots, albeit very noisy ones. Tyrrell’s Spectator relied largely on a young investigative journalist named David Brock, who in 1997 would recant much of his reporting in an Esquire piece, “Confessions of a Right-Wing Hit Man,” and a subsequent book, Blinded by the Right. (In one of the many odd twists since that era, Brock now runs a pro-Clinton super PAC.) Scaife, the Arkansas Project’s backer, paid a handful of reporters, notable among them Christopher Ruddy, to write articles and books about the Clintons that the mainstream press mostly regarded with skepticism. Other scandalmongers depended largely on the Drudge Report to promote stories, hoping that the site would help them get picked up by legitimate news outlets. Fox News was then still a fledgling network, and the many conservative Web sites that are now familiar didn’t exist. The movement was small, outside the Republican mainstream, and animated by a sense of “us against the world,” recalls Brock, “which made the crusade seem more personal.”

If she runs for president in 2016—as all evidence suggests she will—Hillary Clinton will face something more like a vast right-wing conglomerate. This time around, the groups will be well funded, solidly professional, and thoroughly integrated into the party establishment. America Rising, which employs more than 50 people, is a new opposition-research group that’s preparing a Clinton strategy for the Republicans far in advance of the campaign. It sends “trackers” with portable video cameras to all her events, in hopes of catching a gaffe, and uses polling and focus-group research to determine ways to define her before she has a chance, once again, to define herself. The Free Beacon has its own research division and a “war room” for what it calls “combat journalism”—most of it, recently, directed at Clinton. The small but busy Stop Hillary PAC is putting together a “grass-roots coalition” that aims (as its name suggests) to ensure “Hillary Clinton never becomes president.” Citizens United, the group that won the Supreme Court case allowing a flood of new campaign spending, is producing a movie about Clinton’s performance as secretary of state, focusing on whether she did enough to protect the U.S. Embassy in Benghazi, where militants killed ​the U.S. ​ambassador to Libya and ​three other Americans in 2012. Americans for Prosperity, a group funded by the Koch brothers, turned its conference last August into a forum for a wide range of Hillary bashing.

Collectively, these and other conservative outfits have the potential to substantially hurt Clinton’s chances in the next election. Recall how the Swift Boat Veterans for Truth managed to reverse John Kerry’s reputation as a war hero. He instead became defined by a picture of him windsurfing in Nantucket—a copy of which, not coincidentally, now hangs in the America Rising office. The success of these groups depends on many things—most obvious, the Republican nominee who winds up delivering their message. But another significant factor will be which brand of anti-Clinton warfare grabs the most attention: the over-the-top, Spectator-like paranoia that held sway in the 1990s or a sharper strategy that succeeds in tarnishing Clinton’s reputation while still seeming to mainstream voters eminently reasonable and just.

Republicans don’t need a deep sense of history to see that Clinton disdain is like an infectious disease: if it rages out of control, it can easily kill its host. Stories about lesbian encounters in a White House shower or crack pipes meant as ornaments for a White House Christmas tree (both from the former FBI agent Gary Aldrich’s 1996 book, Unlimited Access) may sell, but they won’t win an election. In addition to obscuring justified accusations of wrongdoing, such tawdry tales are likely to elicit sympathy for Hillary Clinton, especially in an age when trashing a prominent woman typically carries some cultural penalty. Also, the re-airing of any of the wilder Clinton conspiracy theories is likely to harm the messenger more than the target. Take Representative Dan Burton of Indiana: though he served 30 years in Congress, he will forever be known as “Watermelon Dan” for shooting a melon with a revolver in his backyard, as part of his attempt to prove that the Clintons’ friend Vince Foster did not commit suicide but was instead murdered because he could implicate them in Whitewater.

Republicans particularly dread loose cannons at this political moment. In the 2012 elections, various off-the-cuff candidate musings (for instance, speculation about “legitimate rape” by Representative Todd Akin of Missouri) made the entire party look backwards and loony, and it paid a price in lost congressional seats. In 2014, the GOP was determined not to make the same mistakes—and for the most part, it didn’t. The result was that Republicans gained control of both the House and the Senate, and now enjoy a more favorable national impression than they have in years. Wanting to hold on to that honeymoon mood, Senate Majority Leader Mitch McConnell had one message for Republicans in the new Congress, summarized by The Washington Post in January: don’t be “scary.” Translated for 2016, the warning to his party is clear: keep the Clinton crazies muzzled.

In March 2013, The Washington Post ran a story about the launch of America Rising. The coverage was unusual: opposition-research shops don’t normally seek out attention from major papers; they prefer to operate under the radar. (As a 2000 story in the New York Post put it, “Oppo research is like underwear—it works best when you don’t see it.”) But this new firm, founded by Mitt Romney’s 2012 campaign manager, Matt Rhoades, planned on “instigating nothing less than a revolution in the way the right does and uses oppo research,” according to The Washington Post. Tim Miller, the executive director of America Rising, told the paper, “Research has been people sitting in a dungeon or going through trash cans and then funneling the information up to a press person.” Miller, by contrast, issues frequent press releases and sometimes even writes op-eds. He speaks like the CEO of a public corporation. “Part of our brand is having credibility with journalists,” he told me.

Oppo shops used to be content with any nasty tidbit that got attention—for example, the infamous rumor leading up to the 2000 South Carolina presidential primary that John McCain had a black love child. But now, with constant political coverage from online media, random rumors have no staying power. The best dirt has become the kind that can help build a consistent and unappealing image of a candidate, or even an entire party. Oppo researchers today function in ways that make them almost indistinguishable from campaign strategists, just without the funding limits. They can provide one crucial piece of information—say, that John Edwards paid $400 for a haircut—that is subsequently integrated into the broader negative picture of a candidate (in Edwards’s case, that he was rich and vain). Last year, a tracker from America Rising caught Bruce Braley, a Democratic Senate candidate in Iowa, deriding the state’s senior senator, the Republican Chuck Grassley, as a “farmer from Iowa who never went to law school.” This turned into a meme that made Democrats look anti-farmer and alienated from Middle America. For 2016, America Rising is building a huge database of everything Hillary Clinton has said and done, regarding everything from Little Rock to Benghazi, to try to paint a robust caricature of Hillary in the public’s mind before the real Hillary even gets started.

When Clinton went on tour to promote her new book, Hard Choices, for instance, America Rising was determined to counter all the free positive press. It sent trackers to record her every move and updated its site constantly. It aggregated unflattering news coverage, but almost always from reputable origins—a Politico summary of negative reviews of her book; or a Wall Street Journal poll showing that only 38 percent of voters thought she was “honest and straightforward”; or a Daily Mail article reporting that “U.S. taxpayers spent $55,000 on travel expenses for Hillary Clinton’s book tour,” including “a $3,668-a-night hotel suite.” The trick for America Rising is to find material that is damaging but still credible and mainstream. “If we were caught peddling really terrible stuff, wild conspiracy theories, it would have a terrible impact on our brand,” Miller told me.

An already-emerging line of attack is the framing of Clinton as a plutocrat: elite, rich, and out of touch with average Americans. In some ways, it’s the evolution of the old portrayal of the Clintons as vulgar money-grubbers, Arkansas grifters involved in an assortment of sleazy deals all the way down to trading old underwear for tax breaks. Now, by contrast, they are portrayed as operating on a much grander scale, acquiring their money from universities, charities, and shady international ventures. Whenever possible, America Rising cites the perks that go along with the Clintons’ new wealth. Last September on the group’s Web site, a story based on a Bloomberg News video appeared under a breathless headline: “$25,000 to Burn? Bill Clinton Smokes World’s Most Expensive Cigar!” (In the video, the CEO of Gurkha—whose high-end cigars retail for $25,000 a box—mentions that Clinton is one of his clients.)

“If anything, the Hillary Clinton network now is the ’90s influence-peddling Bill Clinton network on steroids,” Miller told me. “It’s had time to grow from a little operation in Arkansas. Now the circus is the global financial elite—CEOs and rich hedge-fund pals all looking to make deals, and the Clintons more than happy to participate. It’s way more relevant for 2016!”

Among its efforts to gather information, America Rising has filed Freedom of Information Act requests to learn the details of the Clintons’ speaking appearances at public universities. Such requests have already proved a fertile source of outrage stories in traditional media outlets. For example, The Washington Post reported in November that Hillary Clinton was paid $300,000 to give a half-hour speech at UCLA. (It also noted that her speaking agent requested that she be provided with a wedge of lemon in room-temperature water, a special rectangular pillow, and hummus and crudités in the green room.)

This line of attack could be especially potent against what has emerged as one of Clinton’s regular talking points, the vanishing American dream of upward mobility. When she brings up the plight of a single mother struggling to work and take care of her children, America Rising can point out just how long it takes a middle-class family to earn the $300,000 that she pocketed for one speech. And you can be sure that there will be many, many reminders of Hillary’s comment last summer that she and Bill were “dead broke” when they left the White House.

That said, if clumsily executed, the Hillary-as-plutocrat offense could easily summon a different set of stereotypes about how unseemly money and power look on a woman. The stories on America Rising’s Web site may stick to the facts, but much of the accompanying art is in the realm of tabloid cheap shot. When photos of Clinton appear on the group’s home page, she is almost always wearing one of a few unflattering expressions: chin up haughtily, angry and finger-pointing, bored and contemptuous, or laughing with her mouth wide open. In one photo, accompanying the aggregated story about billing taxpayers for her book tour, she seems to be rubbing her hands together as she leaves the stage.

Teaching Republicans how to not turn off women voters is one of the goals of Burning Glass Consulting, a group founded by Katie Packer Gage and two other female GOP campaign veterans and based just outside Washington, D.C. “Women have this feeling that the world—and particularly this town—is run by men, and if something comes across as mean or unfair, they want to rush to [Clinton’s] defense,” Gage says. “We have to make sure nothing comes across as ‘unfair.’ ” To this end, Burning Glass conducts focus groups with women in informal settings, with wine or cappuccino, to explore their feelings about Clinton. It tests potential strategies to see which ones might be persuasive, and then checks in with the women periodically, to see whether the impact was enduring or temporary. Most voters in presidential elections are women, and most women vote Democratic. But the majority of white women have voted Republican in the past four presidential elections. The most obvious battle in 2016 will be for married white women, who have been drifting Republican but may, by virtue of shared life experiences, lean toward Clinton.

One criticism of Clinton that Burning Glass has found to resonate with women is an attack Obama used successfully against her in 2008: that she is “more politically motivated” than the average politician. In general, people tend to view women as political outsiders. They assume that their motives are more pure than those of their male counterparts, and that they are in it not just for themselves but for some greater good. In its focus groups, however, Burning Glass has found strategies that, over time, can take this asset away from Clinton, and convince women that she is more political than the average candidate. One is to suggest inappropriate overlap between her work at the State Department and at the Clinton Foundation. The firm points out that one of Secretary Clinton’s aides was also consulting at the foundation, which might have created a conflict of interest. The aim is not to uncover a scandal, but rather to show that Clinton operates just like the boys: she works the system and stacks it with cronies, making them all rich in the process. It’s an approach that Burning Glass has found can make respondents “significantly less likely to support” Clinton in 2016.

Between “plutocrat” and “too political,” a useful caricature of Clinton emerges. She’s not the hardworking secretary of state, dutiful, experienced, and breaking glass ceilings. She’s a jet-setter, hobnobbing all over the world, making herself and her friends rich, and using her career as a public servant to build her personal brand.

That’s the restrained scenario. But a host of other anti-Clinton groups and individuals operate by the anything-goes rules of the 1990s. In 2008, Citizens United brought us "Hillary: The Movie," in which Kathleen Willey, one of Bill’s alleged mistresses, claimed that the Clintons contracted someone to murder her cat. The group’s upcoming Benghazi movie is likely to be comparably over the top. The New Hampshire–based Hillary Project, meanwhile, describes itself as dedicated to “waging war on Hillary’s image.” So far, this has primarily involved putting lewd captions on unflattering pictures of Clinton (“Learned Foreign Affairs From Bill: Won’t Pull Out Until Finished”).

Garrett Marquis is a senior adviser at the Stop Hillary PAC. He is only 31 years old, but he can reel off the 1990s scandals as fluidly as R. Emmett Tyrrell can. His goal, he says, is to introduce Millennials to “the reality of who she is, not who she says she is.” (The group’s treasurer, Dan Backer, is blunter still: “Hillary the brand is bull——,” he told The Washington Post.) An ad the group shot last year, using the kind of ominous voice-over and grainy footage that the History Channel reserves for major war criminals, offers a stroll down memory lane: Whitewater, Vince Foster, Travelgate, the Rose Law Firm, Benghazi. (The Rose Law Firm—gives you shivers, right?) With the exception of Benghazi, it’s hard to envision any of these gaining much traction with the voting public. They didn’t, after all, back when Bill Clinton was president, and now they have the added problem of being ancient history—especially for Millennials. “Conservatives will recycle old scandals, and it will hurt them, just like it did in the ’90s,” says Christopher Ruddy, who is rueful about the excesses of his reporting at the time. “People like me constantly firing at her made a lot of other people rally to her support.”

But even the Stop Hillary PAC ad declines to mention the more memorable scandals, involving Bill’s infidelity: Gennifer Flowers, Paula Jones, and Monica Lewinsky. Conversations on this topic prompted the most agony in the researchers I spoke with. On the one hand, revisiting those old sex scandals—and perhaps even uncovering new ones—could be rich territory in an era with much less tolerance for sexual harassment. Jones and Lewinsky, for instance, would look more like straightforward victims now; lumping them together as “bimbo eruptions” (in the Clinton aide Betsey Wright’s infamous phrasing) would be highly offensive.

On the other hand, Bill is not the one running for office, and many in the GOP think talk about his sex life could backfire. “Women cut other women a lot of slack when it comes to infidelity,” says Katie Gage. “We just have to be careful we’re not doing anything that makes [Clinton] a sympathetic character.” Some women could see her as a victim, and others—including the married white women whom Republicans want to hold on to—could identify with her as a fellow scarred warrior on the battlefield of marriage. Some might admire her for keeping her marriage intact for so long, and ultimately winding up as the spouse in a position of power.

Figuring out which of the Clinton scandals still feel relevant and which don’t is a work in progress, and The Washington Free Beacon functions as a kind of laboratory for throwing things at the wall and seeing what sticks. The online paper’s editor, Matthew Continetti, is also in his early 30s, but he has that young-old-man look in the way of conservatives: sport coat, shellacked hair, everything but the bow tie. We met for lunch at the Bombay Club, where he dines often and the waiters know what he likes. Continetti started out at The Weekly Standard and became the son-in-law of its founder, William Kristol. But he split off on his own because while he was interested in Republican trench warfare, he was also interested in pop culture and GIFs and memes and generally operating with a faster metabolism.

The Free Beacon has experimented with pretty much every form of Clinton attack: she’s an old radical; she makes excuses for her cheating husband; she lied about Benghazi; her book sales tanked. In September, the site published a newly discovered 1971 letter from an adoring young Hillary Clinton to the left-wing organizer Saul Alinsky. “Dear Saul,” she began. “When is that new book [Rules for Radicals] coming out—or has it come and I somehow missed the fulfillment of Revelation?” The story was accompanied by a familiar photo of college-age Hillary with her Gloria Steinem hair. Continetti says he published the correspondence “because it’s something we haven’t seen before.” But so far, it hasn’t gotten much traction. Hillary the radical college leftist mostly just creates cognitive dissonance with who she is now, a distinguished elder, an ex-senator and ex–secretary of state with a sometimes hawkish bent who has banked $5 million in speaking fees and a rumored $14 million advance for Hard Choices.

The Free Beacon is perhaps most true to its Millennial self when it drops the Little Rock excavation and just pokes fun at Clinton. As Continetti explains, “I see her as a high-school teacher I really dislike, who can do you harm but you can still snigger about behind her back.” The clearest image that emerges from The Free Beacon’s coverage is of Clinton not as a radical leftist or an injured wife or even a jet-setting member of the global elite, but rather as just a boring old politician. Continetti recalled listening to Bill Clinton’s speech at the 2012 Democratic Convention and, despite himself, nodding along. “I couldn’t help myself!” But Hillary “lacks that hypnotic quality,” he told me. When Hard Choices came out, The Free Beacon took the rare step of quoting a liberal CNN commentator, Sally Kohn, because she said the memoir looked like “a yawner.” In a 2014 column, Continetti wrote that Clinton “represents the past,” which is among the gentlest ways the paper has referred to her age. Other articles have proclaimed: “Affluent Grandmother Is 2016 Frontrunner,” “Memory Problems Could Doom Hillary’s White House Run,” and “Grandmother Hillary Clinton, 67, is vying to become one of the oldest world leaders in history.” When People magazine put her on its cover, The Free Beacon’s editors gleefully dived into the debate about whether she was leaning on a walker in the photo. (Her hands were, in fact, on a patio chair.)

But while this age-based approach may work for an online newspaper that delights in tabloid antics, whether a GOP presidential candidate can adopt it is another question altogether. The 2016 Republican field has the obvious advantage of including several faces who are younger and newer to politics. Marco Rubio, the 43-year-old senator from Florida and a possible contender, did recently try out a more dignified version of the age critique, calling Clinton “a 20th-century candidate” who “does not offer an agenda for moving America forward in the 21st century.” Katie Gage, from Burning Glass, advises staying far away from direct questions about Clinton’s age. She told me that even Republican-leaning women her firm talks with immediately cite some version of “Ronald Reagan was old, and he ran for president.” The idea that women have an expiration date and men don’t is especially sensitive. At the same time, Gage says there are tactful ways to suggest that Clinton is out of touch: “You can talk about the age of her ideas,” as Rubio did. It’s also fair to point out that she hasn’t generated much excitement or buzz, “that young women don’t necessarily feel even the connection with her that they felt with Barack Obama.” And, Gage adds, “when [Clinton] talks about how she and her husband sit around and watch "Antiques Roadshow," well, it’s just not seen as that cool.”

There may be no one who better understands just what a delicate balancing act Clinton disdain can entail than Barbara Comstock. In the 1990s, as a 30-something Republican congressional staffer, Comstock made a name for herself as one of the most dogged investigators of that era’s Clinton scandals. She was known for holding all-night vigils in her office to keep Democrats from breaking in and stealing crucial legal documents. Last year, when Comstock made her first bid for Congress, in suburban Virginia, Politico set the stage for an epic showdown: “Fifteen years later,” the site announced, “the Clinton Wars are back.”

Early on, Comstock looked as though she were preparing for a fight. When asked about Benghazi in a radio interview shortly after her primary, she immediately spoke about her work in the 1990s, “where we were just blocked at every turn.” Yet following the Politico story, Comstock never again spoke in public about Benghazi, and laughed off any mention of her work in the 1990s as old news.

This perhaps should not come as too great a surprise, given that in the intervening years, Comstock played a central role in the professionalization of opposition research—essentially ensuring that something like the Clinton wars would never again unfold in quite the same histrionic, gossip-laden way. In 2000, when Comstock was hired by David Israelite to take over the research shop at the Republican National Committee, she replaced most of the existing staff with lawyers and policy experts. “We wanted to develop a research operation that was fact-based and very responsible, so there would be no question about sourcing methods or where a piece of information had come from,” Israelite told me. Comstock wrote papers using open sources and footnotes. But just as important, she used what she found to “connect the dots and create a coherent story about an opposing candidate,” Israelite recalled. For example, Comstock’s team developed the story that Al Gore had been leasing some of his property in Tennessee to a zinc mine that had several times violated Environmental Protection Agency guidelines, adding to an impression of the environmentalist as pious and hypocritical. The new, methodical Barbara Comstock had rendered the old, obsessive model obsolete.

If Republicans are lucky, Comstock’s story will serve as proof that the early, paranoid years of Clinton disdain drew upon a very particular generational context, a civil war between the Boomers. The straightlaced types looked at the Clintons and saw everything they hated about the hippie 1960s and early 1970s: draft dodging, feminist excess (Hillary Rodham wasn’t “baking cookies”), Saul Alinsky–style radicalism, casual drug use, and sexual promiscuity. Every time something came up that conservatives thought should be disqualifying—past pot use and the ridiculous “I didn’t inhale” defense; Bill’s infidelities with Gennifer Flowers, then Paula Jones, then Monica Lewinsky—somehow the Clintons got away with it (which is just a less flattering way of calling someone a “comeback kid,” the label that was attached to Bill for rebounding from exactly these episodes).

One of the more interesting elements of the cultural response to the 1990s Clintons was the feeling Hillary evoked in conservative women. In his book, Brock writes that Comstock told him she couldn’t get Hillary’s “sins off her brain ‘because Hillary reminds me of me. I am Hillary.’ ” Comstock has never confirmed anything in Brock’s book, and she declined to be interviewed for this article. But her comment lines up with what other women of that era have expressed. In her 2000 polemic, The Case Against Hillary Clinton, the former Republican speechwriter Peggy Noonan wrote of herself:

I look at Mrs. Clinton and see the kneesocked girl in the madras headband [meaning Noonan herself], the Key Club president who used to walk into the bathroom in Rutherford High School, wrinkle her nose at the tenth-grade losers leaning against the gray tile walls, leave, go down the hall, and mention to a teacher that they’re smoking in the girls’ room again. That’s my own private Hillary, or at least one aspect of her.

Comstock was also part of a generation of conservative women who were living a difficult contradiction. She worked for a Republican establishment that had a narrow view of family values, yet she was known for pulling all-nighters during Travelgate, when she had three young kids at home.

“One way to interpret that would be, they were projecting their own internal angst onto Hillary,” Brock says. “They didn’t necessarily hate Hillary. They hated something about themselves, and they were projecting that onto the kind of woman Hillary represented.” But that contradiction has since melted away. Now, The Washington Post reported, Comstock keeps her phone in a case that says Women Rule and is an “evangelist for Sheryl Sandberg’s Lean In.” The crucial turning point in her congressional campaign came when her opponent, John Foust, mused about whether Comstock had ever had a “real job.” Comstock took feminist umbrage, and won over the district’s many working women in part by declaring his remark “sexist” and “intentionally demeaning.”

That’s the problem with critiques of the Clintons that are deeply rooted in specific cultural tensions. Over time, many of those tensions subside, even if the issues remain unresolved. Indeed, one of the most striking aspects of Clinton disdain is the degree to which so many of its most vehement early adherents have moved on. At one end of the spectrum is David Brock, who went from Clinton tormentor to Clinton loyalist. At the other end, perhaps, is Barbara Comstock, who has decided that there’s no political advantage in refighting old battles. In between are people like Richard Mellon Scaife, the principal funder of the “vast right-wing conspiracy,” and Christopher Ruddy, who was, after Brock, perhaps its most high-profile messenger. (Ruddy’s 1997 book, The Strange Death of Vincent Foster: An Investigation, not only implicated the Clintons in Foster’s death but went so far as to accuse Kenneth Starr of being privy to the cover-up and a “patsy for the Clintonites.”) After Scaife met Hillary Clinton face-to-face in 2008, when she visited the editorial board of his paper, the Pittsburgh Tribune-Review, he wrote a column saying he had come away with a “very favorable” impression of her. When Scaife died last year, no less than Bill Clinton himself gave a eulogy at the memorial service, saying that for all their differences, Scaife “fought as hard as he could for what he believed in.” Ruddy, too, has made peace with his onetime targets, even arranging a lunch with his friend Scaife and Bill Clinton in 2007. Now the CEO of the conservative Web site Newsmax, Ruddy has decided that he went too far back in the day. “There was just so much ferment back then, and we got carried away,” he told me. “People get emotional. It was almost like a war, but a political one.” Today Ruddy, who says he is most likely to support the GOP candidate in 2016, will even allow that Clinton “will be a good president. She’s going to surprise a lot of people.”

And then, of course, there’s R. Emmett Tyrrell Jr. In his foyer, Tyrrell keeps all the personal presidential mementos he’s been given over the years. There’s a picture of him meeting with Ronald Reagan. Then one of Richard Nixon jumping on a trampoline. And then, more oddly, a photo of Bill Clinton with his arm around Tyrrell. There’s nothing to indicate that it is different from the other photos, that those are admiring and this one mocking. Tyrrell says the picture was taken when he got a friend to invite him as her date to Bill Clinton’s 60th birthday party. And while he presents it as a prank, it’s clear that he genuinely wanted to attend. Indeed, he seemed the tiniest bit annoyed while recounting that when he got to the front of the photo line, Clinton gave no sign of recognizing him.

Tyrrell said he saw Clinton once more at the end of the party, when both of them walked into the bathroom at the same moment. Two old guys, facing off once again in the realm of underwear. By now, it’s clear which man won. Tyrrell’s magazine is a footnote, in danger of going under once and for all. Bill Clinton, on the other hand, may be on the verge of returning to the White House with his wife. But that doesn’t mean Tyrrell is giving up. Before our interview was over, he offered me one final scoop. “Bill,” he reported, “didn’t wash his hands.” Ω

[Hanna Rosin is a founding editor of Slate's "DoubleX." She splits her time writing longer stories for the Atlantic and shorter ones for Slate. Rosin was nominated for a National Magazine Award in 2010 for a story about transgendered children and roundly attacked for another story about breast-feeding. She got her start in journalism at The New Republic writing contrarian essays, and more recently worked at The Washington Post, doing straight reporting, mostly on politics and religion. She has written for The New Yorker, the New York Times, and GQ. Her book The End of Men (2012) was based on her story in the July/August 2010 Atlantic and is available here. Currently, she is an Atlantic national correspondent. Rosin was born in Israel, grew up in Queens, and attended Stanford University.]

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Wednesday, February 25, 2015

How George Zimmerman Got Off Scot Free

George Zimmerman walked without "calling Saul" (or the equivalent) and there's an explanation for that outcome. Hate is intangible and a difficult thing to prove. If this is a (fair & balanced) legal conundrum, so be it.

[x TNR]
Why Is It So Hard To Prove A Civil Rights Crime?
By Cristian Arias

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Almost three years to the day since the death of Trayvon Martin, the Department of Justice announced it won’t be bringing federal civil rights charges against his killer, George Zimmerman, who in July 2013 was acquitted in a Florida court of second-degree murder and manslaughter charges. DOJ noted it found “insufficient evidence” to charge Zimmerman under federal law, and Attorney General Eric Holder said in a statement that Martin’s “premature death necessitates that we continue the dialogue and be unafraid of confronting the issues and tensions his passing brought to the surface.”

Holder didn’t mention race, but race was certainly a factor prosecutors considered in determining whether to pursue criminal charges against Zimmerman. DOJ rested its theories on two statutes: One is a '60s-era civil rights law enacted as part of the Fair Housing Act, the other is the Hate Crimes Prevention Act of 2009. When President Barack Obama enacted the latter, he expressed hope that the new law would “strengthen the protections against crimes based on the color of your skin, the faith in your heart, or the place of your birth,” as well as those predicated on “on gender, disability, gender identity, or sexual orientation.”

It’s a big, expansive statute that was more than a decade in the making—even Holder testified in Congress urging for its passage. One of its striking features was its source: According to DOJ, it was passed under “Congress’s Thirteenth Amendment authority to eradicate badges and incidents of slavery.” Since its passage, defendants charged under the law have attempted to challenge its constitutionality, arguing race-motivated violence doesn’t amount to “badges and incidents of slavery.” But courts have rejected [PDF] those claims and upheld the statute. And rightfully so: The point of updating civil rights laws passed in the wake of Reconstruction and the Civil Rights Movement was to make it easier, not harder, to punish crimes of intolerance.

The non-prosecution of Zimmerman should give you some pause. For one, data from the Bureau of Justice Statistics reveals that, in 2012, only one person out of 17 initially investigated under the 2009 law was ultimately convicted. That covers the entire country. Granted, a lot of things can happen from the moment DOJ opens an investigation—plea bargaining, special deals, dropped charges, no charges. But contrast that with the total number of racially motivated incidents reported by state law enforcement agencies to the FBI: 3,297 in 2012. Of those incidents, 66 percent were reported to be motivated by anti-black bias. Though states are free to prosecute those cases under their own laws, there seems to be a disconnect between what’s happening at the state level and what DOJ can do in the most extreme cases.

Then there’s the issue of how difficult it is to prove a federal civil-rights crime. After a thorough review of the evidence, federal investigators concluded they couldn’t prove Zimmerman violated either of the two federal laws they examined. More importantly, they couldn’t prove their case “beyond a reasonable doubt.” In most criminal cases, only a jury decides whether evidence meets that really high standard. But here DOJ took on that role because of the high-profile nature of the case—the department wanted to make sure it had a winning case. And the reasons were more pragmatic than anything else: the potential for a second acquittal in federal court, another media circus, and more suffering for the Martin family were too high a price to pay. Not to mention Holder would’ve opened himself up to criticism with a baseless prosecution.

That explains why DOJ, in its announcement about Zimmerman, went to great lengths to note investigators reviewed every single piece of evidence the Florida case produced—the trial record, forensic evidence, ballistics reports, you name it—and conducted 75 independent interviews plus additional evidence-gathering. Most of that evidence didn’t go to proving Zimmerman’s physical act of injuring or killing Martin—that wasn't in dispute. The biggest hurdle for federal prosecutors was getting inside Zimmerman’s mind, to prove that he “willfully” engaged Martin and took his life because he was black.

Willfulness, in civil rights cases or otherwise, is by far the most difficult thing to prove in criminal law. And absent a damning confession from Zimmerman or a mountain of circumstantial evidence showing that he harbors resentment toward black teenagers, making that showing is hard—so hard, DOJ determined, it couldn’t risk pressing charges and losing later.

If there’s one takeaway from this outcome, which reportedly has the Martin family “heartbroken,” is that at least there’s now an indication of how DOJ will respond in another closely watched case: the civil rights probe of Ferguson officer Darren Wilson. He’s being investigated under a totally different statute, but the legal bar is the same: Will DOJ have enough evidence that Wilson willfully shot and killed Michael Brown because he was black? Don’t hold your breath. Ω

[Cristian Farias is a journalist and lawyer who writes on civil rights, criminal justice, and the courts. Farias received a BA (Journalism, Magna cum laude as well as a JD from the City University of New York School of Law.]

Copyright © 2015 The New Republic

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