Saturday, July 12, 2014

The Other NSA Article

The other article on the NSA sets for Americans targeted by the NSA for spying because of their political activities.  Although the article expresses concern that "in practice, the system for authorizing NSA surveillance affords the government wide latitude in spying on U.S. citizens."  In fact, the great majority of Americans spied on had real or strongly suspected ties to terrorism and were legitimate targets.  The number surveilled for their political activities -- five.  All five were either religiously or culturally Muslim.  (Four were Muslims; one was an Iranian-born atheist).  All were quite prominent -- probably too prominent to engage in terrorism, since the whole point of terrorism is not to attract attention until too late.  One was engaged in a prominent suit against the Bush Administration for its warrantless surveillance.  Inadvertently alerted that he had been listened to in his representation of an Islamic charity, he was the only person challenging warrantless surveillance to have actual proof that he had been spied on and therefore undisputed standing to sue.

On the plus side, this means that in general, Americans are not being targeted for political activity.  One of them commented that he is by no means the only lawyer to defend GTMO detainees, but he is the only one targeted for surveillance, and that can only be because he is a Muslim.  On the minus side, it shows that such spying has not been entirely absent.

Make of it what you will.

What the NSA has Been Up To

Two fascinating articles have come out on what the NSA is up to.  One is quite disturbing, the other is disturbing, but less so.

The disturbing one is an article in the Washington Post based on its review of a cross section (about 160,000 messages) of NSA surveillance.  The great majority were instant messages, but also included were e-mails, stored documents, chat rooms, social networks, and real time voice, text or video. (Does that category include phone calls?  If so, they were a small fraction of the communications, only 565. It is not clear to me whether that was so because phone calls make up only a small portion of NSA surveillance, or because Snowdon's collection simply did not include them).  Some of the innocent communications swept in were actual contacts with real targets.  Others were far more tenuous links -- visiting the same chat room, even using the same computer server.  A warrant is required if the NSA believes its target is a "US person."  But the NSA often used dubious criteria to determine that a target was "foreign."  They also may switch to treating a target as foreign when a properly obtained warrant for a US target expires.  (Expiration is automatic after 90 days).

If this sample is accurate, what the NSA listens to is about 10% actual targets and 90% innocent stuff swept in.  The article cites a figure of 89,138 intentional targets (internationally) last year.  At that ratio, there would have been surveillance of approximately 900,000 accounts, targeted or not.  About half the surveillance files it reviewed (around 65,000) contained contact information on a "US person."  The NSA, in proper accordance with the law, removed the actual identity of the "US person," but kept the content which is, after all, where the real violation of privacy takes place.  It must be added that the roughly 10% of surveillance directed at real targets has yielded much real and legitimate intelligence.  And it is no doubt inevitable that in the process of surveillance, a good deal of innocent material will get swept up.  And finally, much of the surveillance activity the article describes took place outside the US and was of non-US persons, so the stricter standards of the Fourth Amendment do not apply.  But the question remains, what sort of minimization procedures are appropriate in foreign spying.  What measures should be taken to avoid sweeping in innocent communications?  What rules should apply to discarding those communications?  And should the rules overseas be the same as those at home, or different?  And, if different, how so?

To put a human face on it, the article gives a single example -- a romance in Australia between a woman who had converted to Islam and the son of refugees from Afghanistan.  He was seeking to join the Taliban.  She had no idea what he was up to.  Thus he was clearly and beyond dispute a legitimate target, which she was an innocent caught up in the net.  Ultimately the romance failed and contact was broken off.  Ultimately he returned from Afghanistan without joining the Taliban and was temporarily taken into custody by the Australian National Police but release without being charged.  She was politely questioned, at home and knew of the surveillance well before the article came out.  So, uncontroversially, he was an appropriate target.  It was entirely proper to keep an eye on him, even if he did not end up joining the Taliban.  It also seems fair to say that, once the case closed, he was not charged, and she was determined not to have been involved, the conversations between them should have been destroyed.  (They have not been).

The real question is, to what extent was it legitimate to follow their conversations, once it became clear that they were purely romantic and in no way incriminating?  She they have continued to surveil their target, but not included his conversation with his girlfriend at all?  Should they have been allowed to follow each individual conversation, but then required to destroy it as soon as it became apparent that it was innocent?  Or should they have been allowed to collect all their exchanges, but then destroyed them once the case closed?  (For what it is worth, the girlfriend is prepared to concede the following all their conversations was legitimate because of his activities, but they should have been destroyed once the case closed).

These are difficult questions and there are reasonable arguments one way and the other.  But they are arguments we should be having.  They are arguments we should be having in Congress.  The NSA has clearly proven that it cannot be trusted to minimize adequately.  There need to be clear rules on the subject.  And these rules need to take the form of a statute, set down by Congress, not the NSA being trusted to police itself, or the FISA court, which looks like a classic case of regulatory capture.  Republicans may grumble about statutes running to hundreds of pages these days, but there is a reason for it.  The reason is that we don't trust courts or regulatory agencies to interpret statutes right, and want to give them clear guidance.  That guidance needs to be set forth in FISA.

 Finally, the article comments that Obama's first term witnessed an "exponential" growth in NSA domestic surveillance, an infuriating thing for people like me who supported him in hopes of reigning in the out of control national security state we saw arising under Bush.  The article also remarks that no government oversight body has delved into a comparably large sample of what the NSA collects.

Wednesday, July 9, 2014

Reflections on the Hobby Lobby Decision

I admit it. I haven't actually read the Supreme Court's Hobby Lobby decision, only reports on it.  But it is an area that I have at least a strong law school familiarity with, so I might was well weigh in.

First and foremost, this was NOT a First Amendment decision.  It was made under a federal statute, the Religious Freedom Restoration Act (RFRA, pronounced Rifra).  Making this decision based on RFRA instead of the First Amendment theoretically means that Congress can overrule it by amending RFRA.  (Of course, as a practical matter, such a change stands no chance of passing the Republican House).  The official reason for that decision is that the Supreme Court will not make a constitutional decision if it can base its decision on statute instead.  The unofficial reason is that to decide the case First Amendment grounds could be embarrassing to all involved.  The current Supreme Court standard for deciding religious freedom was articulated by Antonin Scalia and says that a neutral statute of general applicability that only incidentally impinges on religious practice is constitutional.  In other words, so long as the purpose is not to restrict religious practice, an incidental infringement is allowed.  Scalia does not believe that government is constitutionally bound to accommodate religion and instead believes that the appropriate degree of accommodation should be worked out through the political process.  At the time he made this rule, many liberal justices protested, saying that government should be made to accommodate people's religions.

It was in response to this ruling that Congress passed RFRA.  RFRA forbids government from imposing a "substantial burden" on anyone's religious practice unless it is the "least restrictive means" to meet a "compelling governmental interest."  The terms "substantial burden" and "compelling governmental interest" are not defined, either by the statute or the Supreme Court, which means knowing how courts will rule in any given case requires a large measure of guesswork.  One term that is defined is "government."  Originally, RFRA applied to both the state and federal governments, but the Supreme Court held that, while the federal government was free to impose such a burden on itself, it could not impose such a burden on the states.  By the time the Supreme Court made that ruling, it had become apparent that for government to infringe on the religious practice of a free person was actually quite rare.  Most RFRA cases involved inmates seeking accommodation of some religious practice that the prison considered a security risk.  And whatever else may or may not be a "compelling governmental interest," prison security definitely rates.*  So Congress passed the Religious Land Use and Incarcerated Persons Act (RLUIPA, and no, I don't know how that is pronounced) that applied the same standard to any prison accepting federal funds (which is all prisons) and to certain land uses.

As a number of people have commented, up until now RFRA had been presumed to apply to individuals, churches, and Indian tribes (which have tribal religion), but not to for-profit corporations. So extending RFRA to closely held corporations is something new and (to many people) disturbing.

Next comes the question of sincerity of religious belief.  Although the courts may not decide under RFRA whether religious beliefs are true or false, they may decide whether they are sincere or insincere.  Plenty of people I have read assume that the court must simply assume that all asserted religious beliefs are sincere, but that is an exaggeration.  It is not unheard of to find a professed religious belief insincere.  Consider the Jehovah's Witnesses, who have religious objections to blood transfusions.  Besides refusing to accept transfusions, they also refuse to donate blood, which seems logically consistent. One of the cases I read involved a Jehovah's Witness charged with rape. The state wanted to take a blood sample for DNA testing, but he refused, citing religious objection to blood donation.  Numerous church elders submitted affidavits that this was nonsense, and that the Jehovah's witnesses objected only to transferring blood from one person to another, not to taking blood samples for medical or forensic analysis.  Given the self-serving nature of his objections and their repudiation by church authorities, the court found that his objections were not sincere.  And the courts have found that individual, idiosyncratic beliefs are not sufficient to count as "religious."  There must be an institutional religion holding such beliefs.  So it would appear that a self-serving belief rejected by church authorities would be considered "insincere."  Plenty of opponents have doubts that Hobby Lobby executives' belief that certain contraceptives are really abortifacts are truly sincere.  But in the absence of formal repudiation by church authorities, the courts have little choice but to accept their sincerity.**

More troubling is the blurring of the line between a religious and a scientific belief.  Religious beliefs are beyond the authority of courts to decide at least in part because they are not subject to proof or disproof.  If Evangelical Christians believe that personhood and the rights of personhood begin with fertilization, and that interfering with the implantation of a fertilized egg is morally indistinguishable from infanticide, that has to be treated as a religious belief not subject to proof or disproof and therefore beyond the realm of the courts.  But the belief that a certain contraceptive method interferes with implantation is not a religious belief.  It is a scientific or empirical belief that is subject to proof or disproof.  The blurring of the distinction may open some dangerous doors later on.

Finally, once the Supreme Court rules that closely held for-profit corporations have religious rights, deciding under RFRA instead of the First Amendment merely postpones the day of reckoning.  Many employers are raising religious objections to anti-discrimination legislation based on sexual orientation. Others object to making cakes, taking photographs, and the like at same sex weddings.  Recall that RFRA applies only to the federal government and not to states.  There is no federal anti-discrimination legislation on the basis of sexual orientation.  All such cases are under state law.  Many of the states with such legislation have their own state RFRA's and all have state guarantees of freedom of religion.  But federal courts may not interpret state constitutions or statutes.  In many such states, state Supreme Courts have refused to carve out religious exemptions to anti-discrimination laws, either under state RFRA's or state constitutions.  Thus photographers, caterers, and others ordered to participate in same sex weddings are without recourse under state law.  Federal RFRA cannot help them, because it applies to the federal government only.  That leaves the First Amendment as their only recourse.  Make no mistake.  Now that the Supreme Court has ruled that closely held corporations have religious rights, sooner or later some of them will start seeking vindication under the First Amendment where it is not available under state law or RFRA, and then the Supreme Court will have to decide.  It will be interesting to see what they do.

*And rightly so.  One can question whether any governmental interest other than public safety is "compelling" enough to override a constitutional right, but public safety is the supreme compelling governmental interest, and prisoners are part of the public.
**Come to think of it, this might be a good use for Sarah Palin's word "refudiate," which appears to be a cross between refute and repudiate.  Church authorities in the Jehovah's Witness case were really doing both.  Refudiation!

Saturday, July 5, 2014

First Man in Rome: The Question of Historical Accuracy

Finally, I wanted to look at Plutarch and see just how well First Man in Rome fits with the historical record.

First, Sulla.  The account of Sulla's early poverty, including living in lodgings that rented for 3,000 sesterces is from Plutarch, as is the portrayal of him as dissolute in his youth, associated with theater people (considered disreputable) and had a long-standing gay affair with the actor Metrobius.  Also from Plutarch is that he was the lover of a rich but common woman named Nicopolis, who left her fortune to him, as did his step mother, "who loved him as her own son."  Nothing in Plutarch suggests that he killed either woman for her fortune (which makes up a large part of McCullough's novel), or that his step mother loved him otherwise than as a son.  They also disagree about Sulla's appearance.  McCullough describes him as very handsome and so light in color as to be a semi-albino.*  Plutarch describes his coloring as splotchy, with a mixture of red and white, which doesn't sound handsome at all.  McCullough's description of Sulla's role in the Numidia war matches Plutarch's well.  Plutarch does not say much about him in the war against the Germans, other than that he captured the chief of the Tesgosages.  Plutarch also clearly confirms the impression I got from the novel -- that the real cause of the falling out between the two was not over ideology, but pure power.  And confirmed: During the events of First Man in Rome, Sulla had not done anything in his public career to show himself as a villain.  If McCullough wants to convince us that he is a villain, she has to give him dogs to kick for our entertainment.

As for Marius, Plutarch's treatment surprised me.  Given Plutarch's general distrust of populist politicians and the ghastly end to Marius' career, I expected him to portray Marius, like Sulla, as a straight-up villain.  Instead, he portrays him rather as McCullough portrays him -- a man of distinguished military and political career that ended up very badly.  He begins with the comment that Marius' cognomen is unknown.  He describes Marius' parents as poor people who lived by the labor of their hands, and Marius as uneducated in Greek.  McCullough makes his parents country squires -- big fish in a small pond, and has Marius' enemies accuse him of not knowing Greek (meaning that he lacked culture), when actually he knew Greek, but not standard Greek, speaking it with an Asian accent.  Plutarch then describes Marius' early political and military career in respectful terms.  These events take place before the novel begins and therefore leave no point of comparison.  The novel roughly begins with Marius fighting the war against Jugurtha in Numidia (northern Africa) under the command of Quintus Caecilius Metellus.  McCullough is not able to conceal what Plutarch makes clear -- that Marius deliberately set out to undermine Metellus' authority and replace him.  McCullough makes excuses, mostly that Marius was the better general and would be able to win the war instead of the endless stalemate that was the best Metellus could manage.  But I am inclined to agree with Plutarch -- the episode does not reflect well on him.

Plutarch appears not to approve of Marius' populist style, or his enlisting poor men in his army.  To McCullough, of course, the enlisting poor men was an essential achievement to be applauded.  Plutarch does not give Marius credit for eventually winning the war in Numidia -- he attributes it to Metellus' previous successes and Sulla capturing the king.  He dates the rivalry between the two to this event.  McCullough gives Marius credit for winning the war and has Sulla give him credit as well.  McCullough's account of the German war matches Plutarch's for the most part, though adding some details and omitting others, with one significant difference.  Plutarch treats Marius' rival, the conservative Catulus, with considerable respect, saying that when his army marched up the Alps to confront the Germans and then panicked and fled, he was able to turn their flight into an orderly retreat, placing himself at its head so he would incur the blame for it.  McCullough portrays him as arrogant, overbearing jerk who was well on the way to leading his troops into an ambush when Sulla (acting on Marius' orders) overrode him and managed an orderly retreat instead of a massacre.  While Plutarch gives both generals equal credit for victory and says Marius was unfairly given full credit, McCullough naturally gives full credit to Marius, with some going to Sulla for keeping Catulus from making any foolish mistakes.  In short, she is back to making Marius' enemies run around kicking every dog in sight.

As for his political career for the rest of the novel, suffice it to say that Plutarch as a deep bias against populist politicians and McCullough a bias in their favor, which makes it hard to tell what conclusion to draw.  Marius got a law passed giving land to his soldiers, with a requirement that the Senate take an oath to uphold it and never to change it on penalty of exile.  The reason for this provision is clear. Experience with the Gracchi brothers had proven that a grant of land is worthless if the next assembly can simply take it back again.  Forcing an oath to respect the grant forever is the only way to make it valid.  A good deal of decidedly grubby sausage making also went into passing the law.  Marius' old superior, Metellus, refused to the the oath to it and went into exile, to Plutarch's great approval and McCullough's grudging admiration that he had principles, even if they were foolish ones.

I will make one more comment, regarding the execution of King Jugurtha of Numidia.  It was the usual custom of the Romans to lead a conquered foe in a triumph, in which the vanquished enemy would be paraded through the streets to be mocked and then taken to the Tullianum (a pit used to hold state prisoners) and strangled.  Upon occasion, however, the prisoner might instead be thrown into the pit and left to starve.  This cruel alternative appears to have been the fate of Jugurtha, at least by Plutarch's account:
[W]e are told that when he had been led in triumph he lost his reason; and that when, after the triumph, he was cast into prison, where some tore his tunic from his body, and others were so eager to snatch away his golden ear-ring that they tore off with it the lobe of his ear, and when he had been thrust down naked into the dungeon pit, in utter bewilderment and with a grin on his lips he said: "Hercules! How cold this Roman bath is!" But the wretch, after struggling with hunger for six days and up to the last moment clinging to the desire of life, paid the penalty which his crimes deserved.
There is nothing, however, to suggest that Sulla was responsible for this bit of gratuitous sadism. Naturally, McCullough blames Sulla, and has Jugurtha face even so grim an end with great courage.

All in all, a comparison to Plutarch makes clear that McCullough has an ax to grind.  (As does Plutarch, though a different one).  And it suggests that she does, indeed, have her villains run around kicking dogs.

So, I have now covered a 781 page novel in four posts plus an introduction.  Compared to some of the reviews I have done, this one is a model of brevity.
*He can't be a complete albino because his hair is red-gold rather than white.  But he can never tan no matter how much sun exposure he gets, and light hurts his eyes, both signs of at least partial albinism.

First Man in Rome: The Real Radicalism of Marius

Marius, title character and hero of First Man in Rome is, for the most part, not portrayed as any sort of radical, but simply as a successful general seeking to improve his army and only seeming radical because of far-ranging and unanticipated impacts from his military reforms.

The novel also does a good job of showing that there are two things you never want to see made, laws and sausages.*  Admittedly, it can be very hard from our vantage to distinguish what in Rome was considered sausage making as usual, what was constitutional hardball, and what is flat-out unconstitutional.  It can even be difficult to distinguish these things in our own society, where we know the rules much better and have an actual written constitution, which Rome did not.**  Claiming to hear thunder or that the auspices are otherwise unfavorable sounds very much like sausage making as usual. Requiring every Senator to take an oath to uphold Marius' land bill or be banished is hardball, although probably necessary to keep the measure from being undone.  Mob violence is clearly unconstitutional, although even it can be grudgingly justified in extreme cases of the the Senate protecting its own for their most egregious conduct.  Other cases are less clear to the modern reader.

But even if Marius was mostly just a general wanting to improve his army, and even if his political tactics were usually no worse than sausage making as usual, with a little hardball thrown in, on one issue at least Marius was a genuine radical -- the expansion of Roman citizenship to the Italian allies. Italy of Marius' time was completely under the sway of Rome, with its residents divided into three categories.  Roman citizens had various rights and privileges (not made altogether clear in the novel, although they included the right to be free of flogging and other corporal punishment, the right not to be enslaved for debt, and the right to participate in the political system).  Within these citizens was the social, if not necessarily legal, distinction between a Roman of the Romans (i.e., an old Roman citizen descended from the original Romans) and a late comer.  Marius was such a late comer.  Other allies had the Latin rights,*** allowing them most of the private rights of a Roman citizen, but not the right to vote, hold office, or sit on juries.  Pressure was growing among the Italian allies for Roman citizenship.  Marius extended citizenship to Italians who fought in his armies and made various other extensions on a limited and provisional basis.  But in private, he made no secret that he wanted to extend Roman citizenship to all the Italian allies.

This appears to be historically accurate, and it is part of a consistent pattern.  In general, among Roman politicians, favoring loci of power outside the Senate, championship of the poorer Romans, and the wish to expand citizenship tended to correlate.  This pattern held consistently, through the Gracchi, to Marius, to Caesar.  This is convenient, I suppose, for people who like to evaluate politicians on a linear right-left spectrum.  It is less convenient for people like me who expect populist politicians not to fit very well on the left-right spectrum, and to punch up and kick down at the same time.  It is particularly inconvenient for me since I suspect right wing populism to be a particularly toxic ingredient in the failure of democracy.  Perhaps I should amend that and see if it is perhaps a difference between the failure of modern democracy and such failures in classical times.  Right wing populism simply does not appear to have been a factor in ancient Rome (or Greece, as far as I can tell).  It is also surprising because kicking down sells, whether in Classical times or in modern times.  The Gracchi brothers cost themselves considerable popular support with their insistence on expanding citizenship.  Rome's poor liked the exclusiveness of their citizenship and were not eager to share it with outsiders.  Nor was the issue solely one of psychology. The Roman poor were quite eager to accept land taken from Italians, rich or poor.  It would have been an easy matter for the Gracchi to do just that, and to acquire a considerable popular following as a result.  But the Gracchi were "pure" left wing populists who refused to advance on group of have-not's at the expense of another, to their own expense.

Although McCullough does not dwell on the matter, one can imagine Marius having similar problems with his soldiers.  McCullough portrays him (presumably accurately) as immensely popular with his troops, and with good reasons.  He took an unemployed, impoverished, despised rabble and offered them employment, structure, self-respect and prestige as soldiers.  He is a brilliant general who wins glorious battles with minimal casualties, while his incompetent rivals keep getting their armies wiped out.  (I have to think that would make him very popular indeed!)  And he offers them a generous share of the spoils, and the prospect of land.  But, on the other hand, he is taking away the once source of prestige and self-respect his head count soldiers had before -- that they were Roman citizens, and that many were "Romans of the Romans," i.e., descended from old Roman stock.  The general offering them all these things was a citizen, but not a "Roman of the Romans."  Perhaps some of Rome's lowest, poorest, and most degraded citizens might nonetheless consider themselves superior to him in pedigree.  And he wanted to raise mere Italians to citizenship and perhaps even to equality.  It would all be a matter of whether the new source of self-respect Marius had to offer outweighed the old source that he was undermining, whether to the Head Count living in a cardboard box and cooking sparrows on a curtain rod, but having the satisfaction of knowing the mere Italian in the next box doesn't even have sparrows or a curtain rod is preferable to moving to better quarters but having to share them with an Italian.

The novel also does a good job of showing the Law of Unintended Consequences at work, and why seemingly modest reforms can be more radical than anyone suspects.  After seeing yet another army wiped out by incompetence and Rome exposed to possible German invasion, Marius turns to the property-less Italian Head Count for his next recruits.  The Italians say they have no property-less men; they have all been reduced to slavery by debt.  Marius, moved partly by the desire for more soldiers and partly by a sense of the injustice to the Italians, calls for the freeing of all Italian debt slaves.  Of course, no ancient Roman would ever think to question the legitimacy of slavery itself, only its application to fellow Italians.  But it turns out that the non-Italian slaves are mightily resentful that their Italian fellow sufferers are to be released, while they are not.  In Sicily, a great grain basket for Rome, about a quarter of all slaves are Italians.  Their owners naturally resist, and the non-Italian slaves revolt. And let no one romanticize a slave rebellion.  One can happily acknowledge the injustice of slavery (and, indeed, the lot of a common Roman field slave appears to have been a brutal one) and at the same time acknowledge that slave rebellions are mad frenzies of destruction and atrocity -- on both sides. Marius never for one moment disputes the common view of the revolt -- it is a destructive business to be put down.

But here was also see how people can be radicalized by events.  Consider the case of Marcus Livius Drusus.  Son of a prominent conservative politician who dies at the beginning of the book, Drusus appears to have at least some liberal tendencies, as we first meet him as a young lawyer passionately defending and Italian facing flogging and possible enslavement for debt.  Drusus argues that since the Italian has agreed to pay his debt, it is unfair that he should be ruined just because he happens not to hold Roman citizenship.  He nonetheless shows his allegiance to the old order by marrying the daughter of Quintus Servilius Caepio and forcing his sister, on pain of being locked up in her room for life, to marry his son.  However, he fights at the Battle of Arausio, were the Roman army was destroyed because of his father-in-law's insubordinate conduct, and himself survives only because he is knocked unconscious and left for dead when the Germans come by to kill off the Roman survivors.  When he recovers, he saves the life of the Italian Quintus Poppaedius Silo by pulling him out from under a pile of dead men, where he has gone unnoticed.  Silo, in turn, (probably) saves Drusus' life by draining a wound that was well on the way to killing him.  (Quintus Servilius Caepio, Jr. is also present at the battle, but on the edge and runs away.  He then heads back to Rome with his father, without making any attempt to offer aid to any possible survivors).  And Drusus discovers that Silo, as a mere Italian, had no idea that so many lives were thrown away because of a ridiculous dispute between the Roman commanders and is justifiably outraged.  Drusus grudgingly supports Marius and his military reforms, despite still regarding him as a dangerous radical.  Yet by the time of the Sicilian slave revolt, Drusus is sounding more radical than Marius, regarding the slaughter of so many, Italians as well as non-Italians, as a shocking atrocity and blaming it all on self-serving politicians.****

But presumably the one who will be radicalized most is Marius himself.  We end the novel with him showing himself a true son of the Republic and joining forces with conservative politicians when a real demagogue starts to threaten it.  Yet as a matter of public record, he ended up going off the deep end and festooning the walls of Rome with the heads of his enemies.  How this happened will presumably transpire in the next book.

And then there is the matter of Lucius Cornelius Sulla, Marius' friend and colleague, later to become bitter enemy.  Though they remain close friends and allies throughout the novel, subtle signs of their impending breach are there.  Marius does horrible things sometimes, but no more so than is inherent in the nature of war at the time.  Sulla shows (purely fictitious) streak of gratuitous sadism.  They have little ideological differences.  Sulla, though initially poor as Rome's poorest rabble, dissolute, and bisexual, has a fine patrician pedigree and is sensitive to some of the traditions Marius is violating.  In particular, he shares the conservatives' blood-and-soil view of Romaness and their horror at the though of assimilating far-flung portions of the empire to it.  And, when rabble-rousers start a revolt against the Republic Marius merely joins forces with conservative politicians to lawfully put it down.  Sulla starts directing a group of young, right-wing aristocrats who think the law is too easy and want to take matters into their own hands.  Marius does not know about these activities, and would certainly be furious if he did know.

But in the end, I cannot believe that their breach will be over ideology.  It looks to be more a contest of raw power, a case of "this town ain't big enough for the both of us."  And (if rumor is correct), Marius will be more to blame for their breach than Sulla.  I can also confidently say that, while Sulla may turn out to be a right winger (and that is far from clear at the end of the novel) he is definitely not a conservative.  He is simply too estranged from the established order ever to be a part of it.  What remains to be seen is whether he is a sparrow hawk.  What is a sparrow hawk?  It is a concept I learned in an essay about 1960's radicalism.  The essay both condemns 1960's radicals and warns that they are not a true threat and that overreaction to them will be dangerous.  And it illustrates the danger in the Parable of the Pigeons.  When the Victorians built the Crystal Palace museum, they encased some trees in it, along with the pigeons in the trees.  Soon pigeon droppings were ruining everything, but how to get rid of the pigeons?  Shooting was out of the question because it would destroy the glass panels.  What alternatives were there?  The Duke of Wellington recommended sparrow hawks.  Not addressed -- how to get rid of the sparrow hawks once they got rid of the pigeons.  Says the author of the essay, "Before the Right has recourse to hawks, it had better solve the problem of how to get rid of them.  In the 1930's the German Right failed tragically to solve that problem."  I look forward to seeing whether something similar plays out with Roman conservatives and Sulla.

*This may be an older metaphor than we realize.  Aristophanes portrays politicians as sausage makers in his play Knights. 
**This is significant, I think, for instance, when one reads Plutarch's biography of Cato the Younger, of whom he is a fan.  Invariably he portrays Cato's opponents as fighting dirty and Cato as heroic.  The novel is useful as showing to what extent the tactics of Cato's opponents, though not very nice, were by no means unprecedented, and the extent to which not everything Cato did was so nice either.
***NOT to be confused with the Latin Rite!
****And Young Caepio finds all of this so incomprehensible that he can only attribute it to Drusus being hit over the head in the fighting and suffering some sort of brain injury.  I know I consider elites obtuse, but surely not THAT obtuse!

Friday, July 4, 2014

First Man in Rome: A Political Novel

And so, in keeping with my obsession with how democracies fail, I will start addressing First Man in Rome in that light.  Colleen McCullough starts her series with Gaius Marius.  This is a reasonable choice if the series is supposed to focus on Julius Caesar as its hero.  Marius was married to Caesar's aunt, and their association played a major role in shaping his career.  Caesar's parents meet, marry, and set up a household in the novel, and he has just been born when it ends.

On the other hand, if the series is supposed to be about the fall of the Roman Republic, then it really ought to start with the Gracchi brothers.  The Gracchi brothers sought to reverse the baleful power of R > G.  While Rome was once a land of smallholder farmers, it had increasingly become a land of vast slave plantations with the small holders reduced to an unemployed urban rabble.  The Gracchi sought to reverse this trend by making land available to the urban poor.  In this, they ran into fierce resistance from the great land holders, violence broke out, the Gracchi were killed, their followers crushed, and a bloody crackdown followed.  These were events within living memory at the time of First Man in Rome and cast a shadow on everything that happens in the novel.  To the Senatorial elite, the Gracchi were the embodiment of a wild-eyed radicalism to be avoided at all costs.  To the broader public, the Gracchi were heroes.  By coming in later in events, McCullough avoids having to take sides and make any realistic assessment of the Gracchi.  However, as she acknowledges, it was with the Gracchi that the slow unwinding of the Republic began.  This is not to blame them for it.  After all, R > G had been undermining the Republic for some time, and, as countless T-shirts and bumper stickers proclaim, they only call it class warfare when we fight back.

Events start about 13 years later with the rise of Marius.  Marius' enemies call him a "peasant."  More accurately, he starts out as a country squire, a big fish in a small pond and comes to Rome to find himself a small fish in a big pond.  He comes from a non-Roman part of Italy, one that has been granted Roman citizenship, but that older Romans look down upon as not a real "Roman of the Romans."  Part of Marius' reputation as a radical no doubt comes from his outsider status -- not being part of Rome's ruling circles, he is constantly in danger of transgressing against some cherished tradition without meaning to, simply because he does not understand that it is a cherished tradition.

Part of his reputation as a radical comes from the reforms he is undertaking and his failure to understand their full ramifications.  Marius is portrayed as an old soldier who comes rather late into a political career, as not as wanting to upturn Rome's social order, but simply as wanting to introduce military reforms that will improve the operation of its army, not understanding their far-reaching effect on the social order.  Before the time of Marius, Roman soldiers were recruited from its small property holders and required to provide their own arms.  This arrangement was becoming less and less workable for a variety of reasons.  For one, not much emphasized in the novel, the numbers of small property holders was shrinking as more and more were squeezed out and became urban unemployed. For another, that was emphasized, constant wars drawn from a dwindling number of recruits meant that Rome was running out of men eligible to serve.  And another, that received intermediate attention, was that having citizen-soldiers leave their small properties to fight and then return worked reasonably well when Rome was small and fighting was limited to the Italian peninsula.  By Marius' time, Rome had expanded to a mighty empire and war often meant overseas campaigns of many years.  This, in turn, meant that small property holders were not able to attend to their small properties and tended to become impoverished as a result of the wars and end up propertlyless and unemployed.

What Marius proposed, then, was to recruit from the urban unemployed without property -- the Head Count.*  They would be provided standardized equipment at the expense of the state and receive standardized training.  McCullough discusses the advantage of standardized training and equipment in military efficacy.  Another advantage to recruiting men with no military background was that Marius could break some cherished but outdated military tradition without meeting resistance from his troops. A disadvantage was the low rate of literacy in his army, and good communications are, after all, a vital component of military effectiveness.  

One can see other, far-reaching effects of such an army that McCullough does not discuss.  It offered men hitherto despised as rabble, good only for producing offspring, a career and self-respect.  It reduced the pressure on Rome's small property holders.  It raised taxes, as the state now had to pay for gear for a large force.  On the other hand, by recruiting from the unemployed, such an army did not reduce the productive members of society and presumably increased the tax burden that could be born. And (one may speculate) by sending away Rome's poorest, unemployed, undisciplined men of fighting age, it probably cut down on the crime rate.  Wikipedia also notes a huge advantage that, by creating a standing army, Marius saved Rome from having to raise and train a fighting force after a military emergency arose.

But Marius' army also created a huge problem -- what to do with his soldiers after the fighting was over.  After all, unleashing a group of men with no property, no civilian work history, no future and no hope, but plenty of military training and discipline on Rome is not a prospect anyone would want to contemplate.**  Marius' solution is to give his soldiers land in the conquered areas.  This raises the specter of the Gracchi brothers and scares the hell out of the ruling class, even as Marius argues that, he differs from the Gracchi in two important aspects:  He is not giving away land for free, but only to men who earn it in service to their country, and he is not giving away land in Italy, but land in conquered areas.  These arguments, plus perhaps the fear of what would happen if Marius' soldiers don't get land, ends up convincing Rome's rulers.  His soldiers get their land.

The Wikipedia notes that this ended up having two far-ranging effects, for good and for ill.  On the plus side, settling these veterans in far-flung Roman provinces tended to assimilate and Romanize all parts of the empire, reducing the risk of unrest and revolt.  On the minus side, it made soldiers loyal to their individual general, rather than the Roman state and started the undermining of the Republic.  It seems most unlikely that anyone in Marius' time would have foreseen either of these outcomes.  Nonetheless, McCullough portrays foresightful people as recognizing both the promise and the danger.  Marius describes the tendency of his soldiers to form colonies and assimilate the areas where they settle as a positive -- it reduces danger of unrest by Romanizing the entire empire.  Conservative forces are outraged and see their Roman-ness as a precious quality to be held closely and not shared with outsiders.  Some of his friends, in turn, see the possible danger in the power the he could have in dispensing so much land to so many followers.  They say that the danger could be avoided by arranging for the state to give such a land grant to all retired veterans as a matter of routine.***

Finally, the novel establishes that Marius is no true radical and is loyal to the Republic when a real radical becomes a demagogue of the lowest order -- making unrealistic promises about cheap grain in time of famine that he is unable to keep, and then touching off a revolt when the promises are not kept. Faced with the real danger of revolt to the Republic, Marius and his conservative foes join forces, the conservatives not hesitating to give him emergency powers to suppress the revolt, which he sorrowfully does, using minimum force.  Shipments of grain come in, and Marius promises cheap prices for the next 19 days of his consulship, leaving to his successor what to do after.  Of course, he knows that his successor will have to continue providing cheap grain or face all-out revolt.  Having then served an unprecedented six terms as consult and an unprecedented five right in a row, Marius retires.  The ending sees happy, but, of course, we know that merely mens the phantom menace has been vanquished, and that things will go downhill later on.

Next:  The real radicalism of Marius, accidental and intentional.

*So-called because the census inventoried property as well as persons.  If there was no property to inventory, the census simply counted head.  The Head Count were also referred to as the proletariat, not in the modern, Marxist sense of urban working class, but something closer to what Marx would call the lumpenproletariat -- the unemployed urban rabble.  Proletariat to the Romans meant one good only for producing offspring.  This group might neutrally be called the propertyless.  In more pejorative terms, they could be called the rabble or the mob.

**True, they did get a share of spoils from the war.  But people getting a lump sum and no long-term source of income tend to burn through it fast and end up worse off than ever.

***And, having peeked ahead, McCullough ends up having Octavian keep Marius' system of enlisting the Head Count as soldiers and starts giving them a routine reward after 20 years' service, but not in land, which cannot be guaranteed available, but in a pension.  I do not know the historical accuracy here.

Tuesday, July 1, 2014

First Man of Rome: A Literary Review

A review of Colleen McCullough's Masters of Rome series (that, alas, I can no longer find) makes several trenchant comments about it.  One is on the huge profusion of characters, all with three names each, makes it seem almost like a Russian novel.  Another is the difficulty in exposition when you want to make a detailed portrait of Roman society.  And yet another is McCullough's tendency to have her villains run around kicking every dog in sight.  I agree, these three things are a good starting point in looking at First Man in Rome.

As for the profusion of characters -- the book has a glossary at the end.  It really needs an index.  I know indexes are not customary in works of fiction, but it is quite frustrating when you run across some Lucius Tiddlypuss (McCullough's fictitious Roman equivalent of Joe Blow) on page 350 who you are supposed to recognize from page 75 but can't quite place.  It would be very helpful in that case to be able to look in the index, see where he first appears, and go back to see who he is, rather than to have to hunt blindly.  As for the Russian novel feel, it is greatly increased because at the early time of the series, male characters are invariably addressed by their praenomen et nomen (first name and clan name), even though in the text they are referred to by their cognomen (which can either be a sub-clan name or title bestowed for some accomplishment).  In this, the men resemble characters in a Russian novel, who invariably address each other by their imya i otetsva (first name and patronymic), even as the text refers to them by their familia (surname).  In fact, sometimes I had to pinch myself to remember that the characters were Romans and not Russians, because Russians are the only people I know of who normally address each other by two names.*  It doesn't help either that women have no praenomen, so all women of any given clan all have the same name (the feminine of their clan name), or that sons invariably take their father's names, and that all male members of a single clan keep recycling a handful of first names.

The reviewer I quote complains that exposition too often takes the form of conversation, with two characters telling each other things that every Roman of the time would have taken for granted.  I actually thought McCullough handled the exposition quite well, at least in her first novel.  She does a marvelous job, for instance, in having a character marvel at how life-like the coloring on a statue is. This is a useful but not at all blatant bit of exposition to remind us that, while we are accustomed to seeing statues in classical marble white, that is only because we inherited them with all the paint washed off, and in Classical times statues were painted to look like actual people.**  Or having lots of retired gladiators running around serving as body guards drives home the point that gladiatorial combat was not as lethal at the time as it would later become. Or having characters receive a letter and struggle to decipher the writer's chicken scratch reminds us how much more difficult reading was before the invention of print.

Mostly, though, her exposition takes the form of letters to Marius (the hero and title character) from his best friend, Publius Rutilius Rufus (doesn't it just roll off the tongue?).  Since Romans are allowed more than one cognomen, Rutilius in this novel really should be called Publius Rutilius Rufus Expositious because he role in the in the novel is almost entirely to provide exposition. Once he does this in public speech, as consul, explaining Rome's military situation.  For the most part, though, he does it in his letters to Marius, to the point that, although First Man in Rome is by no means an epistolary novel, it can fairly be described as a historical novel with epistolary exposition.  (That rolls of the tongue quite nicely, too).  Which means, of course, that Rutilius has to be portrayed as an incorrigible gossip, since a large part of exposition is really just gossip, anyhow.  This is pretty well justified in that Marius is an outsider, not part of Rome's political class, so he doesn't know all their ins and outs and all the pieces of gossip that any insider would take for granted, so Rutilius fills him in on all the latest news and gossip.  He can be highly entertaining when he does so.  And it fits well with his character on the few times we meet him in person, particularly at the family dinner party where his niece, Aurelia, announces her pregnancy with the future Julius Caesar (meaning, of course the Julius Caesar) and everyone gossips.  Rutilius spends the whole conversation either trailing some juicy tidbit of gossip for the others to pick up on, or spotting that someone else has some gossip and eagerly asking to hear about it.  The main failing here is that he really gives us more gossip than is strictly necessary to advance the plot and tells us about a lot of extraneous characters, as if we didn't have enough characters to worry about anyhow.  (Some of these extraneous bits may be significant in later stories, though).

Finally, there is the author's tendency to have her villains run around kicking every dog in sight. She certainly does that.  It is understandable to some degree, but overdone.  Certainly I can understand why she does it.  Consider.  Rome's most famous villains are undoubtedly Nero and Caligula.  If you want to introduce a young Nero as a character in your novel, well before he has committed any of his famous outrages, there is no need to have him run around kicking dogs.  Simply introducing him as Nero is sufficient.

At the other end of the spectrum is, say Quintus Servilius Caepio.  Most readers have probably never heard of him, but his record speaks for itself.  He took the extortion courts out of the hands of the equestrians and limited members to Senators, who could be counted upon to protect their own.  He was sufficiently arrogant about his patrician pedigree that when he was sent off to war against the Germanic tribes, he refused to take orders from his military superior, or even join his camp, because he considered him a social inferior.  In fact, according to his Wikipedia article, it was even worse than that.  His superior, realizing his military weakness from an insubordinate officer, started negotiating with the Germans and was on the verge of obtaining favorable terms when Caepio, unwilling to let a social inferior take credit for a favorable settlement, launched an unauthorized attack and got his army wiped out.  Clearly, such a man need not run around kicking dogs to convince the readers that he is a villain.  When McCullough portrays him as an arrogant, snobby jerk, it seems most plausible.  When she treats him as the embodiment of everything wrong with Rome's elite, it doesn't seem too unfair. When she has him disdain Marius' proposal to enlist property-less men in the army and sticks to the dwindling ranks of small property holders, some kidnapped by force, many forced to mortgage their small holdings to buy gear and driven to destitution -- well, I don't know if this is historically accurate, but again, it sounds plausible.  When he camps on the exposed side of a river, burns his army's boats to keep the from retreating, but secretly saves one for himself and uses it to flee when his army is wiped out -- well, that is starting to sound like dog kicking, but then again, he somehow survived when his army was wiped out.  The most sensational charge against him of all involved a large cache of gold and silver he captured in Spain, more than Rome's entire treasury.  The silver he shipped safely home to Rome.  The wagon train carrying the gold was ambushed, its escort wiped out, and the gold disappeared, never to be seen again.  After Caepio lost his army and became widely hated, the accusation arose that the bandits who stole the gold were working for him and turned the gold over to him.  It sounds most implausible.  (Let's get this straight.  He hired a bunch of bandits to steal the gold and they stole it and then meekly turned it over to him?!?!?!  On what planet?)  In fact, it sounds a lot like dog kicking, i.e., people who hated him and wanted to believe the worst, as if the reality was not bad enough.  McCullough accepts this far-fetched story.  In her defense, although it sounds like dog-kicking, a lot of Caepio's contemporaries believe it too, so it is not purely gratuitous.

Lucius Cornelius Sulla, now, is a different matter.  He was undoubtedly a villain, but not so well known that McCullough can count on all her readers having heard of him.  And at the time of events in First Man of Rome, he hadn't actually done anything in his public career that would mark him as a villain. So how do you signal to your readers that this is a bad guy, if many of them have never heard of him, and nothing in his public career marks him as such?  Well, having him poison all the other members of his household, kill a vanquished enemy in a gratuitously sadistic manner, and contemplate killing his wife*** with the most sadistic relish will probably clue in even the most obtuse reader that you are not supposed to like this guy.  None of it has any basis in historical fact, you understand, but it does make for a good, juicy story, and it is some of the most entertaining part of the novel.

One final comment.  I have peaked ahead at some of the future novels and seen enough to get at least one impression.  There are various recurring motifs, various things you see happen again in future stories, introduced earlier on.  I intend to keep an eye open for these things.

I will move on to the political aspect of the novel in my next post, or several, will be about the political side of the novel.

*Romans differ from Russians in other respects as well.  In Russia, everyone has exactly three names, no more and no less.  Romans were not so tidy.  While the aristocracy invariably had cognomina, commoners often had only two names and no cognomen.  (Gaius Marius, the hero and title character had no cognomen).  Women had no given names, only the feminine form of their clan name and sometimes the cognomen.  And there was no limit on how many cognomina any individual could have, or any strict rule about them being hereditary.  Since the original cognomina were often unflattering, meaning something like cross-eyed or swollen feet, so their bearers were eager to win an important victory and get a new cognomen to commemorate it.  Thus Lucius Caecilius Metellus Calvus' daughter was Caecilia Metella Calva, while his sons were Lucius and Quintus Caecilius Metellus.  Lucius won an important victory at Dalmatia and became Lucius Caecilius Metellus Dalmaticus and his daughter was known as Dalmatica.  Quintus won a victory in Numidia and became Quintus Caecilius Metellus Numidicus, but his son, instead of being another Numidicus, became Quintus Caecilius Metellus Pius for his championship of his exiled father.  Oh, yes, and cognomina could keep piling up until there was one Roman named Quintus Caecilius Metellus Pius Scipio Nasica.  It makes you head spin.

** And to treat solid white statutes, even if nude as artistic, but statutes painted to look life-like as gross pornography.  An Arab sheikh in California learned this the hard way when he painted his nude statues to look like actual nudes and discovered that he had unwittingly cause great offense to the neighbors.

***He married her after poisoning all the other members of his household, so she escapes his first round of murder.