Friday, September 13, 2013

          Viewpoint: We Must Confront Our Secret Conduct

          If the impact of James Gandolfini's recent death surprised commentators; it shouldn't have. Gandolfini possessed a unique ability to show us ourselves. His legacy, the iconic Tony Soprano, represented an American generation, fatally compromised by the choices inherent in unrestrained consumer capitalism.

          This article is reprinted with permission from the September 13, 2013 edition of The Recorder.

          by Terry Diggs

          But to a nation obsessed with leaks and leakers, Gandolfini may offer an even more precise lesson — not in his role as a racketeer, but in his depiction of an ordinary man revealing a powerful secret.

          Gandolfini's appearance in Steve Zaillian's A Civil Action (1998) runs a quarter-hour, but lingers a lifetime. Zallian's film builds on a legendary lawsuit by bereaved parents in Woburn, Mass., against two powerful conglomerates, Beatrice Foods and W.R. Grace. Represented by Boston wunderkind Jan Schlichtmann (John Travolta), the parents allege the waste from two local corporation-owned factories caused the cancer-related deaths of their children. When Schlichtmann's investigation crashes into a wall of silence — the social and economic barriers imposed on plant workers to keep corporate practices from scrutiny — Zaillian's film becomes a tutorial on secrets.

          In a sequence of fruitless depositions, employee after employee testifies that he doesn't know how wastes were handled. The testimony of Gandolfini's character, Al Love, a receiving clerk, promises more of the same. Even Schlichtmann questions dispiritedly, by rote: "Did you see what happened to the barrels of solvent?"

          "Yes," Love responds. The answer brings Zaillian's on-screen world to full stop. "They dumped it. Out back."

          Then, without words, Gandolfini shows us what lies at the heart of the decision to reveal the hidden. Schlichtmann continues, and Love answers without discernible emotion, the camera never leaving his face. But the room — and our very understanding of what speaking out entails — undergoes radical change.

          Gandolfini's stillness conveys everything we need to know of recognition and its repercussions. Question by question, Love has begun to see exactly what the company has done. Worse, he has begun to understand the dreadful consequences of that conduct. Worse yet, he has begun to understand the complicity inherent in his ongoing silence. Day after day he has seen the dumping. Yet he has asked no questions; he has raised no alarm. And while he has watched, silently accepting the company's conduct, those practices have inflicted irreparable harm.

          Yes, the water tasted funny. Yes, he drank it. "Did the kids drink it?" Schlichtmann asks. Love pauses for no more than an instant, but it is time enough to illuminate once and for all an honorable man's incentive to come forward. "Yes," Love replies.

          In following scenes, Zaillian shows how powerful secret-keepers respond to the revelations of any individual who goes public; and in this, Zaillian's story is similar to the events surrounding WikiLeaks. The film's secretive institutions don't deny the truth of the revelations. They don't apologize. They don't admit having done wrong. Instead, they focus their enormous power on regaining exclusive control over what is known — first, to preclude public inquiry into their practices; finally, to ensure that no more truth-tellers will ever come forward.

          Gandolfini's Love recognizes early that the weapon the secret-keepers wield to perpetuate their inscrutability is law. But if Love sees law for what it is, neither he nor those of us caught up in Zaillian's story yet understands the full range of law's power to silence. Zaillian leaves the teaching of that lesson to the film's superlawyer, Jerome Facher (Robert Duvall). "You think your mothers and fathers are going to tell their stories. The jurors will pull out their handkerchiefs and dab their eyes," Facher warns Schlichtmann. "You really think I'd let that happen?"

          "I don't see how you can prevent it," Schlichtmann responds. And he doesn't see. But if Schlichtmann is blind to the many ways law will ensure that wrongdoing remains unexamined, we today have no excuse for shortsightedness. The suppression of inquiry has been the past decade's principal legal endeavor — in stilted applications of espionage laws to punish critics of NSA profligacy; in Catch 22-evoking challenges to the standing of NSA-monitored citizens; in NSA-led assertions of privilege that have stymied public scrutiny and reduced federal officers to computer-smashing farceurs. "These people can never testify," Facher says of the Woburn claimants. They never do.

          The would-be publicist of powerful secrets, Schlichtmann is brought low — as inevitably he must be: the price law demands of those who go public with the once-hidden is personal destruction. Schlichtmann isn't charged as a traitor, or cornered in a third-world embassy, or threatened with life in the in-transit lounge. Nonetheless, his insistence on exposing the institutions' crimes to public examination costs him everything — career, friends, reputation. Few of us are strong enough for either that solitary trip or its trappings.

          Most Americans haven't read the WikiLeaks' disclosures — surely the scandal's greatest irony. The documents are available on the Internet, after all. Instead, we satisfy ourselves with editorial interpretations of the leakers' personalities or summaries tailored to our politics. There are thousands of documents, of course, their very extensiveness demanding hours of committed review. Yet the documents demand a price far greater than time.

          That price is our very identity. Always a nation sustained by myths — great tales of American ingenuity and exceptionalism — we depend increasingly on our legends to assure ourselves that we are who we thought we were, that we have continuing place and power in the world. With commensurate desperation, we have become a nation that measures fealty by unquestioning allegiance to those affirming legends. "Riley is Woburn," Schlichtmann's investigator says of the owner of a historic tannery, whose employees — "like loyal subjects" — will not yield his secrets. But when Zaillian exposes Riley as an unrepentant poisoner wrapped in a Horatio Alger story, Love and his neighbors must choose between soothing myth and excruciating self-awareness. That has become the choice we too must make.

          In their very detail, the WikiLeaks offer not simply an overview of bad policy, but a portrait of 21st Century America. It's a likeness that brooks no illusions, denying us by sheer weight of evidence the explanations that have so often given us refuge: that the crimes revealed arose from isolated events; that the misconduct committed was that of a few bad apples; that the wrongdoing stopped because our institutional safeguards worked. Wikileaks demonstrates, instead, the distance between who we are and whom we believe ourselves to be.

          We tell ourselves that America is influential because it is admired; the leaks reveal that we lead not simply by force of arms, but through lowbrow intimidation and cheesy political subterfuge. We say the world covets our freedoms; the leaks expose our liberties as illusory,giving rise to the sad corollary that we are begrudged not our rights, but our comforts, our consumer goods, and our cheerful ignorance of the price our ease imposes on the rest of the world. We insist that the advancement of American interests results in the global good; the leaks display our easy adaptation of national defense to international domination — our demand to know every conversation, control every attitude, dictate every policy. In trying to throw a net over the world, we have shown exactly who we are — not a champion of democracy, but the most paranoid nation on earth.

          No one befriends bearers of unwelcome news, but the vehemence of responses to the leakers suggests the most outraged of us have taken the leaks personally — with good reason. WikiLeaks exposed not only crimes, but the widespread collaboration and incompetence that made them possible: vain pundits abandoning journalism for posturing; gullible politicians sacrificing constituents to powerful committee positions; inattentive Americans signing on for a war without explanation or end. Far too many of us drank the water and asked no questions.

          Of course, killing the messenger means no one examines his news. Zaillian's film suggests one possible outcome of wrongdoing exposed: Love's leak results in the largest toxics removal project in U.S. history. But the evolution of the leaks scandal has yielded another result — wrongdoing revealed but ignored injury unrecompensed.We have yet to drill deep into what we've buried, have yet to extract the contaminants that have poisoned our dealings with each other and the world; have yet to assess the enormous costs of our wrongdoing. But our hope lies in confronting — not covering — our secret conduct. In undertaking that exhumation, we reassess who we are. We redefine "American" for a new century. We use the telling of secrets to effect a transformation more profound than the clean-up at Woburn.

          Terry Diggs teaches Film and the Law at UC Hastings College of the Law.

          The Recorder welcomes submissions to Viewpoint. Contact Vitaly Gashpar at

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