Thursday night, on the pretext of not burning through the reserves in our refrigerator in advance of Winter Storm Nemo (when did blizzards start getting names?), my wife and I had dinner at the venerable Doyle’s Café in Jamaica Plain, Massachusetts. A local institution, Doyle’s has been there since 1882. It’s a traditional stop on the campaign trail (rumor here is that Elizabeth Warren won mostly because she stopped in at Doyle’s in October) and is chock full of political memorabilia.
We ate dinner in the second room, where the booths tend to be themed on Boston’s various mayors. We sat at what might be termed the “Collins” booth, featuring a framed copy of the Boston Globe’s front page from the day in November 1959 when John Collins was elected mayor of Boston. Because I find such things interesting, I read the entire front page before dinner came. Toward the bottom of the page, there was an article about President Eisenhower’s planned overseas trip in December (in two and a half weeks, he went to Rome, Turkey, Pakistan, Afghanistan, India, Iran, Greece, Tunisia, France, Spain and Morocco).
Over dinner the conversation briefly turned to the confirmation hearings for John Brennan, President Obama’s nominee to head the CIA. My mind couldn’t help but wander back to a time when a different President – the Eisenhower of my newspaper article – nominated a different guy named Brennan from North Jersey to a high position requiring Senate confirmation. It got me thinking, and two feet of snow outside my door has kept me thinking when I’m not shoveling instead.
As is commonly known, Dwight Eisenhower was a career Army officer who became famous as Supreme Allied Commander in Europe during World War II. After the war, President Truman reportedly told a bemused Eisenhower he would help him get anything he wanted, including the 1948 Democratic Presidential nomination. At the time nobody knew if Eisenhower was a Democrat or Republican. As it turned out, Eisenhower was a Republican and Truman himself was the Democratic nominee in 1948, winning a come-from-behind victory over New York Governor Thomas E. Dewey.
President Truman’s progressive agenda faltered as the United States got bogged down in the Korean War, pushing too aggressively into North Korean territory and prompting China to come to the North Koreans’ aid. By 1952 Truman was tired and unpopular, and Eisenhower still very highly regarded.
To win his party’s Presidential nomination in 1952, however, Eisenhower had to overcome “Mr. Republican,” Senator Robert Taft of Ohio. Robert Taft, the son of President (and Chief Justice) William Howard Taft, was a rock-ribbed conservative, both isolationist and a fierce opponent of the New Deal. With the help of moderate Republican Senator Henry Cabot Lodge Jr. of Massachusetts, who was as much as internationalist as his grandfather and namesake had been an isolationist, Eisenhower defeated Taft at the GOP convention.
Two consequences immediately followed that affected later American history significantly: (1) to placate the conservatives within his party, Eisenhower named Richard Nixon as his running mate, giving Nixon the national platform he needed for his unsuccessful run for the Presidency in 1960 and his tragically successful run in 1968; (2) Massachusetts political legend has it that conservative Republicans were so incensed with Lodge for helping Eisenhower topple Taft that they refused to lift a finger for him that fall, helping a young John F. Kennedy to win Lodge’s Senate seat. We know how that one turned out.
Thus it was that Eisenhower won the nomination and the White House, and Senator Taft died a few months later. Though no liberal, Eisenhower was squarely within the moderate wing of the Republican Party. This career soldier was the first to warn of the dangers of the “military-industrial complex.”
And two years after his election, when the Democrats retook the House and Senate in the 1954 midterm elections, he famously wrote his brother: “Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes that you can do these things. Among them are a few Texas oil millionaires, and an occasional politician or businessman from other areas. Their number is negligible and they are stupid.”
(Yes, in those days even the Republican President thought abolishing social programs was insane. Now we have a Republican Party that expressly intends to eliminate Medicare altogether, and a Democratic President who may or may not be willing to cut Social Security benefits.)
In his eight years as President, Eisenhower appointed five Supreme Court Justices. Charles Whittaker was largely undistinguished and only served five years. John Marshall Harlan (the younger) was a traditional conservative, Potter Stewart generally a moderate.
But two Eisenhower appointees were solid liberals. The first was Chief Justice Earl Warren. Previously Governor of California and Dewey’s running mate in 1948, Warren became famous as the most liberal Chief Justice, by a mile, in the nation’s history.
And the other was William J. Brennan, Jr. Bill Brennan was born in Newark, New Jersey in 1906 to immigrants from County Roscommon, Ireland. His father was the Commissioner of Public Safety in Newark from 1917 to 1930, chosen to reform the police. The younger Brennan never forgot what he learned from his father about the abuse of police power.
William Brennan was a young man attending Harvard Law School when his father died. He went to work for a corporate law firm in Newark to support his large family. During World War II he was an attorney for the Army, and after the war was asked by Arthur Vanderbilt, then the dean of N.Y.U. School of Law, to join a committee reorganizing New Jersey’s famously inefficient court system. In the late 1940s Brennan, reluctantly, took a position on the state bench. In 1951, on the recommendation of Arthur Vanderbilt, who had become Chief Justice of the New Jersey Supreme Court, he was appointed to that court by Governor Alfred Driscoll (now remembered mostly as the namesake of a large bridge on the Garden State Parkway).
Five short years later, in 1956, William Brennan was appointed to the United States Supreme Court. In that election year, Eisenhower wanted a moderate Catholic Democrat from the northeast. Preferably a state judge, since the Supreme Court had nobody with that background at the time. The story goes that Chief Justice Vanderbilt was invited to address the Justice Department, sent Brennan instead, and the DC crowd were impressed. Brennan fit the demographic criteria, and that was that. He was on the Supreme Court. The vetting process then was not so thorough. Vanderbilt, who considered himself the superior intellect and Brennan’s mentor, was reportedly quite jealous.
Like Earl Warren, William Brennan would become one of the most progressive Justices in the history of the Supreme Court. He sat on the Court for 34 years, retiring in his mid-80s in 1990. Along with Warren, Brennan and his good friend Thurgood Marshall helped to remake American constitutional law. Brennan’s fundamental decency led him always to think of the rights of the individual; his people skills and strategic politicking led him always to build consensus toward five votes. (He often said the most important number at the Supreme Court was five: the number of votes needed for a majority.)
Through it all, he built a legacy of jurisprudence only a conservative could hate (actually, the moderate Eisenhower said late in his life he’d made only two mistakes as President “and they’re both on that Court” – Warren and Brennan). But toward the end of Brennan’s career, a very interesting book called Brennan vs. Rehnquist: The Battle for the Constitution spelled out just how much Brennan was the nemesis of the folks from the Federalist Society.
Justice William Brennan revered the Bill of Rights. He fought to apply it to the states, and to expand virtually every provision in it (notably, the Supreme Court in those days did not consider the “right” to bear arms an individual right). He famously said, at Georgetown University in 1979, “The quest for freedom, dignity, and the rights of man will never end.”
Perhaps nowhere was Justice Brennan, a master cajoler and compromiser, as uncompromising in the area of capital punishment. In all death penalty cases arising after 1976, he and Justice Marshall filed a separate opinion stating that they believed the death penalty to be unconstitutional in all circumstances. Even in 1990, in one of his last opinions, he wrote: "I adhere to my belief that the death penalty is in all circumstances cruel and unusual punishment." Blystone v. Pennsylvania, 494 U.S. 299, 324 (1990) (Brennan, J., dissenting).
William Brennan believed the meaning of the Constitution is “The protection of the dignity of the human being and the recognition that every individual has fundamental rights which government cannot deny him. [Execution by the state] treats members of the human race as non-humans. Even the vilest criminal remains a human being possessed of common human dignity."
In 1986, when he was 80, Justice Brennan gave the Oliver Wendell Holmes, Jr. Lecture at his alma mater, Harvard Law School, on this topic. The lecture was published in the Harvard Law Review. (Brennan, "Constitutional Adjudication and the Death Penalty: A View From the Court," 100 Harv. L. Rev. 313 (1986).) He argued that the death penalty debases us all and makes a killer of our democratic government.
Shortly before he died at the age of 91, Justice Brennan reaffirmed this belief: “The machinery chugs on unabated, belching out its dehumanizing product. It is distressing. But I refuse to despair. I know, one day, the Supreme Court will outlaw the death penalty. Permanently.” (William J. Brennan - "My Life on the Court" in Reason and Passion: Justice Brennan's Enduring Influence (1997)).
It’s been a while since Justice William Brennan was in the news. This week, though, a lot of the news concerned another Brennan: John Brennan, President Obama’s nominee as Director of Central Intelligence.
John Brennan was born in 1955 and grew up in North Bergen, New Jersey, about 10 miles from Bill Brennan’s Newark. As fate would have it, John Brennan’s parents were, just like Bill Brennan’s parents, immigrants from County Roscommon, Ireland. He was a baby when Bill Brennan was named to the United States Supreme Court, and while Bill Brennan was fighting for the Bill of Rights in the late 1970s, John Brennan was joining the CIA.
When President Obama was first elected in 2008, he floated the idea of naming John Brennan as Director of Central Intelligence. John Brennan’s support, during the Bush years, of torture and extraordinary rendition led to an outcry, and he was not formally nominated. Now, four years later, little has changed in my view, except that Brennan has been the public face of our government's drone strike program. In theory that makes him more objectionable now than in 2009. Yet this erstwhile nonstarter is likely to be confirmed.
Terrorism is a scary thing. I get that. I spent time in Belfast in the early 1990s, and in Paris in 1995 when a series of terrorist attacks occurred in that city. On September 11, 2001 I saw the plane hit the North Tower of World Trade Center at 8:46 am. The night before, at about 11, I’d changed from the downtown 1 train to the Brooklyn-bound R train by walking through the concourse below those towers. So I have sympathy when John Brennan says, “the U.S. intelligence and law enforcement communities have to bat 1.000 every day. The terrorists are trying to be successful just once.” I know anyone involved in keeping us safe, as safe as we can be, has a hard job and will have to make some hard decisions.
But still I believe that we have lost our way in this endless War on Terror. In important ways, we are destroying our own village in order to save it. For an example, one need look no further than John Brennan. Since he was first floated for DCI in 2008, he’s become known as the public defender of our nation’s drone program. Last week’s scoop by Michael Isikoff, the White House’s White Paper justifying the drone program, confirmed what many suspected: that the government now claims for itself the right to kill American citizens in the name of anti-terrorism.
As Kossack RFKLives put it a few days ago: “Uncle Sam stands for the proposition that the president and undisclosed advisers can unilaterally sentence people to death for crimes that such people might commit in the future.” Kossack wolverinethad further noted that “the rationale for doing so is broad. It uses a definition of ‘imminent’ that no dictionary would recognize, and that the due process rights of a citizen do not preclude them from being attacked.” This is the policy John Brennan has been defending in our Senate this week.
I can’t help but notice the difference in respect for human life, and the rule of law, between Justice William Brennan and nominee John Brennan. Justice Brennan believed that no government in the United States should be allowed kill a human being, even after conviction of a crime and years’ worth of “due process” designed to reduce the risk of wrongful execution. John Brennan appears to believe that the President and a few security advisors can kill a human being without any process at all and before they even do anything.
In his testimony before the Senate this week, John Brennan asserted that President Obama:
insisted that any actions we take will be legally grounded, will be thoroughly anchored in intelligence, will have the appropriate review process, approval process before any action is contemplated, including those actions that might involve the use of lethal force.Many people have pointed out that future Presidents may not be as wise or restrained as President Obama in this use of this claimed power, and future intelligence chiefs may not be as wise or restrained as John Brennan may well be. But I would submit this policy is deeply troubling not only for the future, but here and now. I agree with wolverinethad that, too often, this community and Democrats in Congress look the other way as President Obama maintains facets of the Bush/Cheney approach to foreign policy and counter-terrorism that we used to find abhorrent. The very fact that John Brennan is likely to be confirmed, when he was not in 2009, suggests we have grown more blasé about such things as torture, state-sponsored assassination, and assertions of executive prerogative that make a mockery of our Constitution.
My role as the president's counterterrorism adviser was to help to orchestrate this effort over the past four years to ensure, again, that any actions we take fully comport with our law and meet the standards that I think this committee and the American people expect of us as far as taking actions we need to protect the American people, but at the same time ensuring that we do everything possible before we need to resort to lethal force.
The Fifth Amendment reads, in part, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...nor be deprived of life, liberty, or property, without due process of law." How are these words, in the supreme law of the land, consistent with the White House's and the Justice Department's White Papers on their drone policy?
They are not, unless one concedes a permanent state of war, with the targets considered enemy combatants even if they are American citizens (albeit not American citizens of the kind DC types recognize as "real" Americans). And, sure enough, John Brennan defended these killings on the basis that "we are at war with Al Qaeda" and those believed to be affiliated with it “should know well that they, in fact, are part of an enemy against us.”
President Obama has ended the War in Iraq. He is winding down the War in Afghanistan. In many ways, he has restored American credibility around the world. But the amorphous "War on Terror" continues unimpeded. How far, in the name of that endless war, will we allow our Constitution to be subverted?
And what would Bill Brennan have to say about John Brennan? I think I can guess. We've had hysteria, over national security concerns before. In retrospect we tend to regret it. The Sedition Act of 1918 curtailed free speech during World War I, prompting the creation of the ACLU. During World War II this country sent over 100,000 of Japanese descent to internment camps simply for being of Japanese descent, something for which our government officially apologized four decades later.
And during the Cold War, we had no shortage of paranoia about communism. In one of his earlier decisions on the U.S. Supreme Court, Yates v. United States, 354 U.S. 298 (1957), Justice Brennan joined the majority in standing up for the Bill of Rights in the face of that hysteria.
Two Brennans, born half a century apart.
Both from North Jersey.
Both born to immigrants from County Roscommon, Ireland.
Both nominated to high office by the President of the United States, one by a Republican and the other by a Democrat.
One believed that killing by the state was immoral and prohibited by our founding, and controlling, document regardless of the procedural safeguards applied. The other believes we can trust presidents and intelligence heads to determine in secret which American citizens may be killed, with no process whatsoever.
Which is which? And what does that say about where we're at right now?