Paul Berman on DSK

The Dominique Strauss-Kahn Shipwreck

What will happen after American justice and French conspiracy theories collide?

Paul Berman/May 26, 2011/TNR

The Dominique Strauss-Kahn case is headed toward a dismally predictable shipwreck, and I wonder what anyone is planning to do about this. The punctilious fair-mindedness of the trial may well turn out to be obvious to everyone who grants the possibility of such thing. The world nonetheless contains entire populations whose assumptions about American justice, despite years of Law & Order, tend to exclude the possibility, and we ought to ask ourselves how those people, the skeptics, are likely to respond to the coming series of events.

Those people, the skeptics, are going to listen to Strauss-Kahn parry his prosecutors, and they are going to discover that Strauss-Kahn is eloquent. They will discover that his lawyers command abilities of their own, which will turn out to be no less devastating to the prosecution than were, say, O.J. Simpson’s lawyers. The skeptical populations will cock an ear to Strauss-Kahn’s champions in the French press. The champions will turn out to be some of the most talented writers alive.

The talented writers will argue that American justice is brutal and peremptory (and, to be sure, this argument has already influenced the trial, and the French journalist who has accused Strauss-Kahn of attacking her in 2002 has announced, through her lawyer, that she will not testify in the New York trial because “the presumption of innocence does not exist in the United States”).

The writers will argue that American ideas about sex are too primitive to be taken seriously (and, to be sure, the American press is already full of long-winded parallels between actual violence, or what is said to be, at the Sofitel Hotel, and the former governor of California’s history of deceiving his wife).

The skeptical populations will take note of the New York tabloids and their headlines, which may well be intended semi-humorously by the editors; but one man’s witticism is another man’s exercise in moronic xenophobia. And the skeptical populations will conclude that, in the Strauss-Kahn case, the victim and hero is Strauss-Kahn himself—the defiant victim of the American lynch mentality, of America’s sexual primitivism, and of the gutter press. This will lead to a political thought.

It is no small thing to seize the most electable person from one of America’s principal rivals around the world (as France sometimes likes to present itself) and lock him up. To arrest the dictator of Panama and throw him in a Florida jail, to scoop up Saddam Hussein’s pistol and award it to George W. Bush as a kind of shrunken-head cannibal trophy, to bomb places where Muammar Qaddafi is thought to be and kill his son and grandchildren—that is one thing. But what if there is a pattern? The sovereignty of Pakistan… And if France is thought to have fallen within the pattern?

The French left has been exiled from the presidential Elysée Palace since 1995, which suggests that, in a democracy whose bona fides, like those of any democracy, depend on political rotation, the time has come for Nicolas Sarkozy to lose. And he did seem headed for defeat, especially if Strauss-Kahn were the Socialist candidate. Here is something to consider.

In America, not even the historians remember that French anti-Americanism got started in the 1830s as a result of a decision by the Andrew Jackson administration to insist on getting reimbursed by the French for the many American ships that France had seized during the time of Napoleon.

The Jackson administration was entirely justified, but not in the eyes of the French, and the resentments lingered long enough to become a cultural tradition. Even Lamartine, the poet-politician, who was pro-American, turned anti-American on this issue.

So now, America will lock up the Socialist candidate, and the Socialists may be go down to defeat in 2012, and, regardless of the American justification, how would you yourself respond, if you were an ordinary Socialist voter and had spent the last 17 years stewing over the triumphs of the right?

And now that I have uttered the word “Socialist,” I wonder how the Greeks are going to respond if, in the post-DSK era, the International Monetary Fund, no longer led by a kindly Socialist, ends up taking a harder line on the Greek economy? And the Portuguese?

I don’t mean to suggest that, in France or Greece or anywhere else, no one is capable of comprehending that even barbarous America has laws, and chamber maids, rights; and not everyone is eager to rally behind the French political elite. Still, it is worth recalling the success of September 11 conspiracy theories in France.

A preposterous credulity about the American willingness to murder thousands of Americans proved to be amazingly widespread, for a while. What will be so hard to imagine, then, about a far more modest conspiracy directed against a single individual, who will not even be put to death, but, if convicted, will merely be incarcerated, either for a long time (indicating the depth of American cruelty) or a short time (indicating a plot within the plot)?

If I may propose a conspiratorial speculation of my own, I wonder how many publishers all over the world, the desperate upstart hopefuls, are already searching for conspiracy-theorists to produce their journalistic tomes on the American arrest and trial of Europe’s most powerful Socialist by the henchmen of a sinister American cop named Raymond Kelly, chief of the New York Police Department and agent of capitalism.

And if the man turns out to be innocent? The damage, in that case, will end up greater yet, though maybe not so long-lasting, as when the U.S. Air Force bombed the Chinese embassy in Belgrade during the Kosovo War. (We apologized.) But assuming the general accuracy of what has already been reported, Strauss-Kahn’s own ardor for defending himself will only succeed in compounding the original crime with a political crime.

I suppose there is no point in asking him to interrogate his conscience, any more than there is in asking the editors of the New York tabloids to rethink their headlines. Maybe there might be a point in asking Strauss-Kahn’s champions in the French press and among the politicians to reflect on what they themselves are doing. The more he is defended, the thicker and chillier will be the trans-Atlantic fogs, in the future. Dear champions of DSK, réflichissez-vous! But no one is going to reflect.

Anyway, a bit more caution on the part of his loyalists would scarcely help, at this point. The ocean-liner of American justice and the ice floes of French conspiracy theories are already bobbing in one another’s direction, and nothing is to be done about it, and, oh dear, has anyone figured out what to do next, post-collision?

Me:

I’m with the estimable willjames77 on this one but I'm less forgiving him than him on this short piece of silliness and irrelevance.

I'd venture the thought that this piece is evident of a pervasive weakness in some of Berman's writing, much of which I mightily admire. That weakness is this: to overload the abstractions of consequence that he imagines ineluctably flowing from discrete events.

Leaving American crazed sensationalist culture to the side, this is an instance of the magnificence of the American justice system and its foundation in the rule of law. A man of immense power, rank, wealth, influence, status and privilege is accused by her of having raped an American hotel chamber maid. She follows due procedure, reports it to her employers; they call the police; the police investigate; they in conjunction with the relevant District Attorney exercise their discretion and arrest him and charge him. His case will be disposed one way or the other and his legal guilt, if any, will be determined or plea bargained as the case may be.

Nuts and fools, including French intellectuals like Bernard Henri Levy, will draw whatever nutty and foolish inferences they are prone to drawing. The world will go on quite the same regardless. And the above piece, like the foolish inferences, will comprise just so many words on a page, so much hot cyber air, so to speak, just so much talk, talk, talk that will all in short time passing be as dust in the wind.

Sophia:

Respectfully, Bernard Henri-Levy is not a fool.

He's brilliant - and - he had a point about le perp walk.

It's damning. So too, all too often, is the treatment of people who for whatever reason wind up in the slammer especially if they haven't even been formally charged yet let alone tried and found guilty.

A long time ago, my then-boyfriend got arrested for something or other involving his ancient VW bus. He looked like a hippie and mouthed off at the cop so he wound up in jail for the night. I went the next morning to court and he was paraded out with the other "guilty parties" wearing a bright orange jumpsuit with huge black letters spelling "JAIL" about 8 inches high, in case there was any doubt as to where he'd spent the previous night. He looked guilty as sin, lined up with all those other guys in their orange jumpsuits with the big black letters - JAIL - on the back and on the chest - whereas supposedly he wasn't, yet.

Anyway, he wasn't done with the legal system. He stood up and started the lecturing the judge about human rights, the presumption of innocence etc; I'll never forget the sight of ol' Ted standing there in his orange jump suit with JAIL on the front, and the American flag and the Colorado flag draped majestically, and the judge sitting there dumbfounded while Ted lectured him on the Constitution. Fortunately he had a sense of humor so I was able to make bail and get Ted out of there and back to the sunny streets of Boulder.

So it was scary and funny and embarrassing but - Ted was right and Henri-Levy was right about the fact that a person made to look guilty whether he is or not is also a victim and in this case, he's preemptively lost his career and also his future.

What if he is innocent?

Me:

Sophia:

This is what Levy actually says, in part, respectfully:

...This morning, I hold it against the American judge who, by delivering him to the crowd of photo hounds, pretended to take him for a subject of justice like any other.

I am troubled by a system of justice modestly termed “accusatory,” meaning that anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact....

Here's part of my argument written to someone elsewhere for his foolishness and offensiveness:

...I understand your explanation of the investigatory system going to Levy’s concerns with pre trial notoriety irreparably damaging DSK’s reputation even if he’s acquitted or the charges withdrawn. And that is part of the some I think is a well taken concern. But I wonder this: you say: “…because there is nothing like a “juge d’instruction,” an impartial magistrate who weighs both the evidence ‘à charge” (accusatory) and the evidence “à décharge” (disculpatory) in order to get to the bottom of things before the trial even begins.”

I don’t know enough about these procedures to comment on them, but is it fair to say that that what the magistrate does before trial can be likened to Anglo-American police and prosecutorial investigation before arrest? Under the French system, I’d imagine, once the Magistrate “binds” the “accused” over for trial, the raft of publicity, if any, will follow. On this basis, what is the functional difference between the two systems, save for timing, as to publicity, such as it may be in any case, erupting, with all cultural allowances for what may pique national interest.

My questions tie into Levy’s first j’accuse: “This morning, I hold it against the American judge who, by delivering him to the crowd of photo hounds, pretended to take him for a subject of justice like any other.” I took strong exception to it when I first read it. And I’m not persuaded that seeing Levy’s comments as informed by French law abates my response. More, he’s incoherent here.

Unless I’m missing something particular in this case, no judge does what Levy holds against this judge. The accused has been investigated; discretion has been exercised to charge and arrest him; a grand jury—if the is a case that goes to one—will have brought in an indictment. The first judge simply arraigns the accused, takes his or her plea and then decides on bail. So how does this judge deliver DSK to the photo hounds? And now Levy becomes offensively ridiculous: what can he possibly mean when he says this judge pretends to take DSK to be a subject of justice like any other?

I reject the rationalization of this comment as either—your burdens—sensible or made sensible in light of French procedures. The subject judge is pretending as to nothing. DSK is precisely a subject of justice like any other. American law demands nothing less than that as I assume does French law. Levy’s complaint is that DSK is above such equal treatment by virtue of whom, goes the point, he exemplarily is.

Underlying this elitist tripe is Levy’s category error: he conflates American legal procedures with a crazed American sensationalist culture, the latter well worth decrying. So, in my view, respectfully, you haven’t met your burden of argument here.

Levy’s second j’accuse is also deeply problematic: “I am troubled by a system of justice modestly termed “accusatory,” meaning that anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact.”

Sorry, but again this is neither sensible nor made so by reference to French law. Levy is correct that anyone can accuse another of a crime. But then Levy falls of a logical and empirical cliff because he posits that that accusation leads to arrest, charges and indictment.

He omits the investigation that takes place after the accusation has been made. He omits the discretion that is exercised in the decision to proceed after that investigation. He omits that the preponderant majority of those indicted is found, or pleads, guilty. He (again) conflates public perception of guilt and innocence with legal determination. He omits the presumption of innocence as it operates in the American administration of criminal justice. He omits that an accused may admit to his lawyer that he is 100% guilty but he wants to plead innocent and can in perfect theory and perfectly ethically be acquitted.

It may be in that the court of public opinion the accused is presumed guilty but clearly not so in law. But it is the American system of justice that is pilloried in this second j’accuse. Levy’s outrage here is rooted in his ignorance or else bad faith for what he pretends not to know and French law in no way saves him...

Your thoughts?

Sophia:

I think, when you cut through the verbiage, that (judging from what I've gathered) a lot of people in France believe that DSK was set up.

I don't know if this is true or not. But, it's affecting the dialogue, for sure, and not just from intellectuals - hence, Berman's article. Now, I would hope that US/French relations are stronger than this - nevertheless, there is a point to the unease. Part of that point is perhaps a sense that America is hypocritical.

And, going a step further with the BHL thesis that DSK isn't an ordinary presumed criminal (or presumed innocent - which is it?) one could argue that, as a person in the US is innocent until proven guilty, ALL people who've been arrested should be treated as innocents (not just important people). Flip Henri-Levy's argument upside down and you'll see what I mean - what HE means I think.

The other side of the story about my fiancee - that night in jail. It was clearly a bad night. Things happen to people in jail and at the hands of the authorities.

So, this isn't just about DSK. It's about the rights of people who've been grabbed, for whatever reasons, by the authorities. It includes especially those who can't get out of jail on bond, people who might be stuck in jail for months or even years until they go to trial.

Extend what BHL is saying here - haven't many of us been arguing the same for people in Gitmo? But also - things happen in our judicial system - real brutality at the hands of police, devastation of reputation - but also - brutality in the prison system.

So, step back a minute from the personalization here - and I do understand what many are saying about DSK and the presumption that because he is powerful he should still be given the same treatment as anybody else - but stop and think - what does that treatment really entail? especially in a system where we are supposedly innocent until proven guilty.

The fact is, whether you're DSK or Ted, you are not TREATED like an innocent person and the consequences can be dire.

Am I right? Isn't this an issue?

Me;

Sophia:

How can anyone take seriously the possibility that DSK was set up? Such supposing is a mode of conspiracy theory nuttiness. Any French intellectuals promoting such a notion are fools for that. (I haven’t read BHL to claim this, btw.) I’m not sure what you mean when you say, “I don't know if this is true or not.” If you mean you hold to the reasonable possibility he was set up, I’d have to say that surprises coming from someone so seemingly sensible. Is that really what you mean?

Given that I think a set up is wildly improbable—who would have engineered it; under whose authority; by what web of connectedness: it’s all too absurd to contemplate—it marks the unreality of Berman’s piece, in answer to your “hence Berman’s article.” There is, I’d argue, “no point to the unease.” To think there is a point, you logically have to give credence to the reasonable possibility of a set up—which I don’t think anyone can, as I just said.

You say, “Part of that point is perhaps a sense that America is hypocritical.” Again, I’m not totally clear on what you are saying. What do you mean by “American hypocrisy?” Do you mean such hypocrisy that it informs such an “unease” that it’s reasonably possible, reasonably contemplatable, that American power at its (presumably) highest levels conspired to set up DSK? This speaks to a paranoid view of America with shades in it of 9/11 truthism.

I don’t think any of the foregoing bears any connection to BHL’s argument, which seems discrete and separable. As I say, I don’t see him advancing any notion of a set up. So I don’t think you’re going a logical “step further.”

There’s a distinction to be drawn in what might be characterized as part of Levy’s “argument.” (He’s quite non-linear.) Levy both: special pleads for DSK as too important, accomplished, sterling (supply your choice of superlatives) to be treated like other less superlative accuseds—a notion to be rejected out of hand, I strongly assert; and criticizes histrionically a criminal justice system that purports to presume people innocent but treats them as though it presumes them guilty.

The first side of the distinction is contrary to the demand of equal treatment under law and the rule of law. While pre trial procedures, including bail, have to be conditioned case by case in the circumstances of each case, no one should get differential treatment by virtue simply of who they are. When that happens, and of course it does—the administration of criminal justice is a human institution and is as fallible and imperfect as people are—it is to be loudly condemned as outrageous, the very opposite of for what America stands.

The second side of the distinction, DSK, ironically, as everyman, goes to what might be read as Levy’s systemic critique grounded in the failure to abide by the presumption of innocence. Quite frankly, Levy does not know what he’s talking about. The presumption of innocence is a rule of evidence for criminal trials putting the onus and burden of proof on the state to prove its case beyond a reasonable doubt. The presumption does not control every step of pre trial procedure including what is most instructive on this point—bail.

On Levy’s reasoning, it seems, no accused would be confined to jail before trial because of the presumption of innocence. Bail tells the tale otherwise. The bail judge entertains a host of considerations on whether to confine an accused, release him on his own recognizance or conditionally. They include the seeming strength of the case, the seriousness of the charges, the risk of flight, roots in the community, the seeming danger posed by release, and other conceptually related factors that havenot so much to do with the presumption of innocence.

That abuses occur, that mistakes are made, that the state’s power overreaches itself, that the indigent are especially prone to that overreach, that some of these errors are amplified in a culture crazed with sensationalism—of course. That all of this does not vitiate an entire system of criminal justice administration—equally of course. Every person arrested has the constitutional right to counsel which entails being represented by, at a minimum, a public defender at a bail hearing so that the question of pre trial confinement can be judicially determined.

Typically people aren’t “grabbed for whatever reason by the authorities” though sometimes they are. Certainly DSK wasn’t. Typically people aren’t detained for years before trial and if they are detained too long, they have constitutional remedies, including dismissal of the case against them, flowing from their rights under the Sixth Amendment.

Guantanamo is a distraction from these issues and doesn’t speak to them because it is an instance of the overlap and tensions amongst American domestic law, the law of war and the fact of war. It is disanalogous to the issues Levy raises and in fact, if you think about it, it highlights the glories of American law, the rights constitutional and otherwise, which get appealed to and argued for in the case of Gitmo detainees, the very rights informing the American administration of criminal justice which Levy vents against as a system.

Sophia:

"That abuses occur, that mistakes are made, that the state’s power overreaches itself, that the indigent are especially prone to that overreach, that some of these errors are amplified in a culture crazed with sensationalism—of course."

Really? "Of course" is ok with you?

As to American power - you really don't understand how this past 10 years or so has resonated with many around the world? People are afraid of us. We want to be Camelot but are we?
When people like Henri-Levy criticize us it is because they want to believe in our ideals.
PS - Basman, et.al., have any of you ever been in a situation with the authorities? Or been powerless in some way? I kind of doubt it otherwise you'd get at least SOME of these arguments.

Me:

..."That abuses occur, that mistakes are made, that the state’s power overreaches itself, that the indigent are especially prone to that overreach, that some of these errors are amplified in a culture crazed with sensationalism—of course."

...Really? "Of course" is ok with you?...

OK with me?????

Sorry: this does not follow/compute at all. Why does recognition of the existence of injustices have to mean acceptance of them? Why, does anything short of systemic rejection have to preclude inveighing, fighting, against those injustices?

What have the last 10 years--8, Bush 43; 2, Obama--made America that it was not before? This is hopelessly unclear and way too general. (Camelot is, and always was, horseshit, not to be taken seriously by any thinking person, including Levy. It is a criterion for nothing, measures nothing, save for those who dwell in fantasy.)

Three more things:

1. The motives behind BHL's criticisms are one thing-whatever they are. Who knows but him? But they don't help assuage the histrionic, scattered, emotive, declamatory and misconceived nonsense he sometimes writes as evident by the indefensible above from him, which defense you have not begun to make out.

2. I've, in fact, been powerless. I've been rousted by the cops, bullies, people in authority, others. More, I overcame all of that such I have acted for powerless people a fair bit in my professional life. So I don't need to contend with irrelevant asides about my biography to show I don’t even "get SOME of these arguments." What I need to show me that--and do not think I have received from you-- are meritorious arguments, as opposed to unhelpful, uncontextual and unspecified generalizations about American hypocrisy or peoples' fear of American power or whatever, in response to what I have said. I have no last word on wisdom or anything like it and am wide open to being persuaded by better arguments, evidence or the clear exposition of flaws in my own reasoning. But being told that I'm not getting something based on a mischaracterization of my own experiences is intellectually self refuting.

3. To cap that, I note no substantive response whatsoever to anything I have argued