RICHARD NIXON

JAN 17 1989.

577 CHESTNUT RIDGE ROAD
WOODCLIFF LAKE, NEW JERSEY

Some leaders have plenty of courage but are short on brains. Others have plenty of brains but are short on courage.

Helmut Schmidt is one of those rare leaders who is richly blessed with both courage and brains.

All who cherish freedom in the world owe him a debt of gratitude for his superb leadership.

JAN 23 1989.

OFFICE OF RICHARD NIXON
577 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675

January 12, 1989

MEMORANDUM FROM JOHN H. TAYLOR

I thought you might be interested in seeing an advance
copy of RN's article for the upcoming special issue of
*Foreign Affairs*.

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1st proofs

'JAN 10 1989

FOREIGN AFFAIRS

AMERICAN FOREIGN POLICY

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Richard Nixon

AMERICAN FOREIGN POLICY:
THE BUSH AGENDA

In 1945, a year before his speech in Fulton, Missouri, Winston Churchill sent a message to the new president, Harry Truman, about the ominous developments in Soviet policy: "An Iron Curtain is being drawn down over their front. We do not know what lies behind it. It is vital, therefore, that we reach an understanding with Russia now before we have mortally reduced our armies and before we have withdrawn into our zones of occupation." Churchill's advice went unheeded, and the West lost a historic opportunity to negotiate a favorable deal with the Kremlin when the bargaining leverage of the United States vis-à-vis the Soviet Union stood at its peak.

After almost half a century, the communist world's leader, President Mikhail Gorbachev, has undertaken dramatic changes within the Soviet bloc that give the free world's new leader, President George Bush, another historic opportunity to enhance the West's security and to effect a sea change in the U.S.-Soviet relationship. Gorbachev's policies of glasnost and perestroika have been hailed, even by some hard-line Western leaders, as heralding the end of the cold war. While his reforms give reason for a reappraisal of the West's policy toward the Soviet Union, we must bear in mind that the causes of the cold war—Moscow's domination of Eastern Europe and aggressive foreign policies around the world—still endure. Those who urge the West to "help Gorbachev" with low-interest loans and subsidized credits fail to realize that such actions are not in our interest until he makes an irrevocable break with the Kremlin's past policies.

An opportunity now exists to make genuine progress toward a more stable peace. President Bush can exploit this opportunity if he takes a hard-headed look at the Soviet Union under Gorbachev and devises a policy that presents the Kremlin leaders with intractable strategic choices. We must make Gorbachev choose between a less confrontational relationship with the West and the retention of his imperial control over Eastern Europe, between a continuing race in arms technology and arms control agreements that could create a stable strategic

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## 2 FOREIGN AFFAIRS

and conventional balance, and between access to Western technology and credits and continuing Soviet adventurism in the Third World.

## II

Gorbachev has sparked enormous excitement in the West because he is perceived to be a new kind of Soviet leader. Dazzled by his "star quality"—the fashionably tailored suits, the polished manners and the smooth touch in personal encounters—reporters and diplomats alike have naively confused changes in style and rhetoric with shifts in substance and policy. I have met with three of the Soviet Union's principal postwar leaders—Nikita Khrushchev in 1959 and 1960, Leonid Brezhnev in 1972, 1973 and 1974, and Mikhail Gorbachev in 1986. Gorbachev is in a class of his own. He is their match in tenacity and forcefulness, but outstrips them in realism, quickness and intelligence. He deserves great respect for his boldness, his courage and his mastery of public relations. He is a different but, from the West's point of view, not necessarily a better type of leader. We must keep in mind that his talent and capabilities can just as easily make the world a more dangerous place as they can contribute to greater global security.

Gorbachev has launched his reforms and pursued a more conciliatory approach to the West because the communist economic system failed at home and the Soviet Union's foreign policy became counterproductive abroad. The centrally planned economy of the Brezhnev era has become a monument to corruption and inefficiency. Brezhnev's militarism and expansionism not only mobilized the West to strengthen its armed forces but also gave the Soviet Union a severe case of imperial indigestion after it gobbled up Third World countries. By the early 1980s, Moscow's clients in Afghanistan, Cuba, Nicaragua, Vietnam, Angola and Ethiopia cost the Kremlin at least $20 billion a year to keep in power. It is a mistake to think that only Gorbachev would have initiated a reform program, for these realities would have forced whoever came to power into rethinking Soviet domestic and foreign policy.

Unlike his predecessors, Gorbachev sees the world without ideological blinkers. He has realistically assessed the Soviet Union's enormous economic, political, imperial and geopolitical problems. First, he recognizes openly that the Soviet economy has stagnated, with negligible or even negative growth rates since the late 1970s. Without economic reform and access

AMERICAN FOREIGN POLICY 3

to Western technology and capital, the Soviet Union will fall hopelessly behind the United States, Western Europe, Japan and—perhaps as early as the middle of the next century—China.

Second, Gorbachev initiated his economic reforms—perestroika—because he knows that the Soviet people can no longer be motivated with political slogans. The increased East-West contacts of the détente era and the revolution in mass communications have rendered futile the Stalinist strategy of isolation and ideological indoctrination. Today, the Soviet people are aware that their standard of living—cramped housing, endless food lines and empty store shelves—compares unfavorably not only with that of the West but also with those of the newly industrializing countries of the Third World. Gorbachev knows that only material incentives, not ideological exhortations, will induce the people to work harder. They will produce more only if they can actually purchase decent consumer goods with the additional rubles they earn.

Third, Gorbachev knows that economic failure and political repression have created seething unrest throughout the Soviet empire that could erupt at the slightest provocation. Time bombs lie just below the surface ready to explode, not only in virtually all his East European satellites, but also in many of the non-Russian republics of the Soviet Union itself. Through glasnost, he has tried to create a safety valve to defuse this pent-up frustration, but by venting these angers he may have let the genie out of the bottle. He will find that demands for pluralism in Eastern Europe and greater national autonomy for the non-Russian peoples are difficult to control. Ironically, Soviet leaders used appeals to nationalism to expand their empire into the Third World. Now nationalism threatens to tear that empire apart.

Fourth, as Gorbachev surveys the global political scene, he must be struck by the fact that instead of improving the Soviet Union's position in the world, the Kremlin's foreign policy has managed to unite all the world's major powers against Moscow. The United States, Canada, Western Europe, Japan and China—which together account for over 60 percent of the world economy and which pose the threat of a two-front engagement in any world conflict—have cooperated actively for more than 15 years in opposing Moscow's traditional expansionist ambition. Moscow's old thinking led to a dead end, so Gorbachev has launched his "new thinking" in foreign

## 4 FOREIGN AFFAIRS

affairs to loosen the bonds of, or break up, that anti-Soviet bloc.

Fifth, Gorbachev, as a communist, instinctively believes in the importance of the battle of ideas, but as a realist, he knows that the Soviet Union has lost that battle. Around the world— not only within the Soviet bloc, but also in Africa, Asia and Latin America—Soviet socialism is perceived as the road to stagnation, not prosperity. It still appeals to those who want to seize and hold power but not to those who want to build a better life for their people. Through his reforms, Gorbachev seeks to create a new model and image for socialism and to give the communist ideology a second wind.

### III

Gorbachev's goal is to reinvigorate his country's communist system, to make the Soviet Union a superpower not just in military but also in economic and political terms. Without sweeping reforms, he will not be able to afford the costs of the Soviet military establishment and of Soviet client-states, to provide the Soviet people with a better life, to create a model that can be competitive in the global ideological battle and to keep the Soviet Union in the front rank of world powers.

Gorbachev's reforms face three massive internal roadblocks that could derail his efforts. Despite his successes at the recent special party conference (June 1988) and his tours de force at the recent Central Committee and the Supreme Soviet meetings, Gorbachev has not consolidated a firm political grip over the Soviet system. He can count only three or four of the 12 members of the Politburo as steadfast allies. While Yegor Ligachev, his apparent rival, may no longer be looking over Gorbachev's shoulder as the recognized number-two man, Ligachev's faction is waiting in the wings, ready to take over should Gorbachev falter. The last Soviet reformer—Nikita Khrushchev—met with an untimely political demise when he threatened too many entrenched interests.

Thus, we should make no concessions to Gorbachev that we would not make to the least progressive Soviet leader, for the chance still exists that the latter could come to power. While Gorbachev has been hailed as a superstar on the world stage, we must remember that the stars that shine the brightest sometimes fade away the fastest.

In Gorbachev's four years in power, there has been a lot of talk but precious little progress. He has been unable to force

AMERICAN FOREIGN POLICY 5

the sclerotic Soviet party and state bureaucracies to abandon
their Stalinist ways. He has the unenviable task of teaching old
bureaucrats new tricks. It is one thing to tell a bureaucrat to
do a certain task and another to order him to be creative and
innovative. The former at least stirs him to action, while the
latter evinces blank stares of total incomprehension.

Gorbachev's most profound problem is that he still believes
in Marxism-Leninism. Even if he wins his political and bureau-
cratic battles, this handicap will ultimately doom his reforms to
failure. Rapid, self-sustaining economic growth has occurred
only in countries that respect the right of individuals to own
private property and that allow unregulated prices and the laws
of supply and demand to allocate economic resources. Gor-
bachev has expressed a willingness to grant farmers long-term
leases for private farming and has stated that some prices will
be decontrolled in the early 1990s, but he still wants to keep
the party-state apparatus in firm command of the economy as
a whole. While there have been several examples of economies
moving from capitalism to communism, there are no examples
of economies moving from communism to capitalism. No one
has ever constructed a successful halfway house between a
market-based and a command economy.

Gorbachev faces a profound philosophical dilemma: he can
choose ideology or progress. If he chooses communism, he
cannot have progress; if he chooses progress, he cannot have
communism. Only by abandoning the ideology that is the
bedrock of his power can he produce progress that will match
that of the West.

Given the inefficient central planning system and the irra-
tional pricing system, no foreign investor today has the slightest
idea of how to judge which economic risks in the Soviet Union
are worth taking. Making loans to the Kremlin is like laying
down chips on the dice table; some bets may pay off but the
odds are that in the long run the money will be wasted. In fact,
it is not even in Gorbachev's interest for the West to provide
economic assistance before fundamental economic reforms
have been institutionalized. A banker does no favor to a bor-
rower by making him a bad loan. We should not enable the
Kremlin to borrow its way out of today's problems and thereby
delay the inevitable day of addressing the causes of those
problems.

Both American superhawks and superdoves overstate the
impact Western policies can have on the Soviet Union. Super-

## 6 FOREIGN AFFAIRS

hawks argue that the West's arms buildup and its opposition to Soviet aggression in places like Afghanistan were the primary factors that prompted Gorbachev to launch his reforms. Those Western actions were vital on their own merits. But even without those actions Gorbachev would have had to initiate changes because the Soviet economic system was suffering from terminal illness. As a Chinese leader told me in 1985, without reforms the Soviet Union by the middle of the next century would "disappear" as a great power. That made internal change imperative, regardless of Western policies.

Superdoves, on the other hand, believe that we should do anything within our power to help Gorbachev in order to promote peace. But we must realize that whether he succeeds or fails ultimately depends on events and forces within the Soviet Union that we cannot affect. We cannot induce Gorbachev to cast aside his Marxist-Leninist obsession with keeping the state in charge of the economy. We cannot whip the Soviet bureaucracy into shape. We can hardly even make out the patterns of Kremlin political intrigue after the fact, much less lend a helping hand to those whose views and interests seem to parallel ours.

Above all, we must keep Gorbachev's reforms in perspective. He does not want to overturn the Soviet system; he wants to strengthen it. To paraphrase Churchill from another context, Gorbachev did not become general secretary to preside over the demise of the Communist Party. We have an interest in the success of his reforms only to the extent that they change the system to make it less threatening to our security and interests. We should applaud glasnost and perestroika but not pay for them, for if his reforms do not irrevocably alter Soviet foreign policy we will be subsidizing the threat of our own destruction.

## IV

Those who parrot today a fashionable slogan—"the cold war is over"—trivialize the problems of Western security. Gorbachev's public relations experts have made many Western policymakers forget that a more benign Soviet image does not mean a more benign Soviet foreign policy. As a result, the race to Moscow is already on. In recent months, Western leaders have jetted off to the Kremlin with planeloads of eager bankers and industrialists in tow, and Soviet leaders have gleefully lined up more than $10 billion in easy credit. Unless the West steps back and designs a coherent strategy, we will squander our

AMERICAN FOREIGN POLICY 7

leverage and lose the historic opportunity presented by events
in the Soviet Union.

We should bear in mind a remark made to me in 1953 by
Field Marshall Slim, then the British governor-general of Aus-
tralia. In arguing for a dialogue between the United States and
the Soviet Union, he said, "We must break the ice. If we don't
break it, we will all get frozen into it so tight that it will take
an atom bomb to break it." Today, the ice has broken even
before the end of winter. We are witnessing the thaw that
brings the promise of spring. While it is a period of great
possibilities, we must tread carefully or risk falling into the icy
waters.

We have to recognize that the situation we face now is
infinitely more complex than the one we faced at the outset of
the cold war forty years ago. At that time, the threat was as
clear as Stalin's Iron Curtain and his belligerent rhetoric about
the inevitability of war, all of which enabled President Truman
to prevent a return to isolationism, adopt a policy of contain-
ment and win bipartisan support for entry into NATO and
unprecedented levels of peacetime defense spending.

Gorbachev has brilliantly changed the game. In Europe, he
has discarded the traditional Soviet tactics of diplomatic bluster
and military threat and has mastered those of deceptive prop-
aganda and political maneuver. He has substituted the wiles of
diplomacy for the threat of force as his chosen instrument for
foreign policy conquests. As a result, at a time when Soviet
superiority in conventional military forces and in accurate land-
based intercontinental ballistic missiles (ICBMS) is larger than
ever before, he has made more progress toward the traditional
Soviet objective of dividing the NATO alliance than any of his
predecessors. We cannot counter his "peace offensive" simply
by loudly warning about the military threat of Moscow's Red
Army. Instead, we must launch our own political offensive to
achieve our strategic and geopolitical objectives.

We will be pursuing those goals in what has become a
multipolar world. Japan is already an economic superpower
and will inevitably use its economic clout for political effect.
Western Europe will become a unified economic market by
1992 and is beginning to intensify its cooperation in political
and strategic matters. China, already a major nuclear power
and fast becoming a major economic player, will emerge as one
of the world's superpowers in the next century.

We can work with all of these new major powers more easily

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## 8 FOREIGN AFFAIRS

than Gorbachev can. Therefore, before the new administration holds a substantive summit with Gorbachev, it should conduct intensive discussions and meetings with our major allies and friends. We should do this not to present Moscow with an antagonistic and belligerent united front but to explore our common interests and to coordinate our policies where possible.

President Bush should continue to reject the advice of those who urge that he schedule a quick summit with Gorbachev in order to have a foreign policy "victory" early in his term. Gorbachev needs a summit far more than the president. Only when the Bush Administration has agreed on a strategy with our allies and has a definite program for making significant substantive progress on major issues should President Bush schedule an American-Soviet summit.

In formulating a strategy, we should begin by estimating what Gorbachev wants, then map out what we want, what trade-offs are possible, and what we can do to put pressure on him to agree to our terms. Most important, we have to recognize that linkage—the linking of progress on one issue to progress on another—is the key to any successful negotiations with Moscow. Kremlin leaders will always explicitly reject linkage, but they always implicitly accept it.

Without linkage, Gorbachev will string together a series of easy victories at the bargaining table. Each superpower has a greater interest in progress on some issues than on others. Gorbachev, for example, will press hard for access to Western capital markets and technology. The United States, on the other hand, has a greater interest in reducing Soviet influence in the Third World through settlements of certain regional conflicts that threaten our interests. Moscow will be more than willing to negotiate solely on the former. If we fail to pursue a determined policy of linkage, Gorbachev will dominate the agenda and make one-sided progress on his top priorities.

Linkage requires subtlety. An American president should not step before the cameras and announce that he intends to hold the next arms control agreement hostage to Soviet capitulation on one or another issue. Nor should the Congress make the mistake of publicly linking U.S. foreign policy objectives to Soviet domestic policy reforms. The Jackson-Vanik Amendment in 1973-74 was a case in point. Its purpose was to force the Soviet Union to increase Jewish emigration, but it had the opposite effect of drastically reducing it. We should vigorously

AMERICAN FOREIGN POLICY 9

press the Soviets in world forums to eliminate their human
rights abuses. But we must allow them to appear to do so of
their own volition rather than by clumsily making it look as if
they did so only because of direct Western intervention in their
internal affairs. No great nation can appear to allow its internal
policies to be dictated by a foreign power.

We should link progress toward better East-West relations to restraint in Soviet global behavior. If we enter into agreements beneficial to Moscow despite direct or indirect Soviet aggression, we will in effect be giving the Kremlin a green light to assault our interests. If we pursue a determined strategy that includes linkage, we can further our strategic interests in Europe, in arms control negotiations and in the world's key regional conflicts.

v

Europe has again become the central focus of the East-West conflict, and our strategy vis-à-vis the Soviets must change to meet these circumstances. From 1945 to the early 1960s, the European continent was the principal arena of the world ideological struggle. From the early 1960s through the mid-1980s, after the division of Europe had become a settled political reality, the primary fields of conflict—Indochina, the Middle East, southern Africa, the horn of Africa, southwest Asia and Central America—were situated in the Third World. Now Gorbachev has made the Old World the central priority and target of his new foreign policy.

The traditional goal of Kremlin leaders has been to create political fissures between the United States and Western Europe in order to erode the strength of the alliance. Moscow has pursued this objective, at various times, through a strategy of confrontation that seeks to rattle European nerves and demonstrate the unreliability of America as an ally, or through a strategy of condominium with the United States that seeks to weaken European confidence by creating the impression that the superpowers are settling Europe's fate. Gorbachev has adopted the more straightforward tactic of appealing directly to the West Europeans. He has called for the creation of a single "European home" stretching from the Atlantic to the Urals—thus implying that the United States represents an obstacle to peace—and has sought to exploit the West European fatigue after forty years of East-West conflict.

The world of 1949, when NATO was formed, differs pro-

10 FOREIGN AFFAIRS

foundly from the world of 1989. We need a new strategy in Europe—one that enhances the Continent's stability not only through initiatives to revitalize the alliance in Western Europe but also through a sustained effort to foster peaceful change and positive political evolution in Eastern Europe.

The new administration should make Europe its top foreign policy priority. It should call for a major working summit—no black ties and no spouses—to hammer out a strategy for enhancing our collective security. First of all, we should articulate a common analysis of the nature of the Soviet military threat in Europe. Americans, and many Europeans, believe that the Soviet threat remains as great as or even greater than ever, especially because of Moscow's unrelenting buildup of conventional and strategic weaponry. But in recent years there has been a tendency among other West Europeans, especially but not exclusively those on the left, to view the Soviet Union as a stagnant society incapable of threatening the West or even to view Washington's calls for vigilance and readiness as a greater threat to peace than Moscow's armies.

Harold Macmillan once told me that alliances were held together by fear not love. For many in Europe and the United States, the fear of the Soviet Union has waned, and what love may exist between economic competitors in the West is a very weak glue to hold an alliance together. It is therefore imperative that Western leaders issue a joint statement, in conjunction with its arms control proposals, that educates their publics on the nature and scope of the Soviet threat.

Second, we should agree on ways to defend common Western interests outside of Europe. In 1949 the West faced the threat of a direct Soviet military thrust into central Europe. In recent years, with the East-West competition in Europe focusing on the political plane, Soviet direct and indirect aggression has principally taken place in the Third World. The United States has borne the overwhelming share of the burden in countering Moscow's subversion and proxy warfare to protect regions, such as the Persian Gulf, even though it is far more important to Western Europe than to the United States. Unless we devise a more equitable global security framework, it is inevitable that pressure will build in the United States for a significant reduction of the U.S. troop commitment to NATO.

Third, we should articulate a compelling rationale for NATO's nuclear deterrent and a joint approach for the next round of European arms control talks. At the Reykjavik summit, the

AMERICAN FOREIGN POLICY 11

Reagan Administration undermined public support for nuclear deterrence by advocating the idea of eliminating all nuclear weapons. We must renounce the Reykjavik rhetoric in unequivocal terms and explain to Western publics the realities of the nuclear age. We should pursue the so-called competitive strategies on the conventional level to undercut the significance of Soviet quantitative superiority and thereby raise the nuclear threshold. But nuclear deterrence, both strategic and tactical, remains imperative. Even if conventional arms control succeeds, NATO will have to maintain a residual, even if diminished, tactical nuclear capability in Europe, though the deterrent should be reconfigured to allay West German concerns regarding the bases and targets of these weapons. More important, NATO must arrive at a joint conventional arms control proposal that makes offensive warfare futile and that mobilizes public support for the Western negotiating position. A good beginning has been made in the recent NATO proposal for major cuts in the tank armies in Europe, though a public diplomacy offensive needs to be launched to sell it to Western publics.

Fourth, we must agree on a common approach to East-West trade. We should not provide the Soviet Union with technologies that can significantly improve its military forces. We should also create a joint institution for coordinating and regulating the Soviet Union's access to Western capital markets. It is not in our interest to have Western banks competing to provide the Kremlin with loans at below-market rates. Nor is it in our interest to repeat the mistakes of bankers in the 1970s who lent East European countries tens of billions of dollars that will never be repaid.

Fifth, we should design a common approach to the problem of Eastern Europe. The cold war began in Eastern Europe, and it will not end until Moscow's satellites receive their independence. In the past, it has always been in the West's interest, but not in Moscow's, to address the issue of Eastern Europe. Today, since Gorbachev needs East-West economic links and reduced tensions for perestroika to succeed, a new settlement is in the Kremlin's interest as well.

Without a political settlement in Eastern Europe, no stable, enduring improvement in East-West relations is possible. Post-war history is the story of continual attempts by the East Europeans to wrest their freedom from Moscow. The workers' uprising in East Germany in 1953, the popular rebellion in Hungary in 1956, the Prague Spring in 1968, the Solidarity

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12 FOREIGN AFFAIRS

movement in Poland in 1980, and the scores of other smaller incidents of open opposition all testify to the popular determination to be free. All these outbursts had to be suppressed directly or indirectly by Soviet arms, and all those interventions destroyed the prospects for an immediate improvement in East-West relations.

That pattern could soon recur. Eastern Europe has become an economic and political powder keg waiting to blow up. Today, the tectonic plates of East European nationalism and Soviet expansionism have built up enormous pressure as they have pushed against each other. We have seen the first tremors in the rise of East European dissident and reform movements. But a political earthquake is inevitable in the 1990s. If Moscow responds with military force, it will mean a return to sharper tensions in East-West relations and an abortion of Gorbachev's reforms.

If we want to avoid this grim scenario, we must work on three fronts.

First, the West should press for peaceful change in Eastern Europe. We should continue to exploit modern means of mass communication to break the grip of the East European regimes over their peoples. Radio Free Europe has been one of our most effective programs in the East-West struggle. In the 1990s we should establish direct television transmissions via satellite into these countries. We should also provide material support to those behind the Iron Curtain who are pressing for peaceful change, with Western trade union support to the Solidarity movement in Poland serving as a model.

Second, the West should continue its policy of differentiating between those East European regimes which demonstrate a willingness to enact reforms that move their countries toward political pluralism and those which do not. For those leaders who liberalize their regimes, we should make available economic credits, more advanced technology and debt rescheduling, while the others should be left to fend for themselves.

Third, the United States should put Eastern Europe on the U.S.-Soviet agenda. In Yugoslavia last year, Gorbachev signed a declaration that stated that "no one has a monopoly on truth" and that foreign powers had no "claim on imposing their notions of social development on anyone." We should insist that Kremlin leaders back up their words with deeds. We could even propose the neutralization of Eastern Europe along the lines of the Austrian Peace Treaty of 1955, with an interim

AMERICAN FOREIGN POLICY 13

agreement that leaves the military structure of the Warsaw Pact intact but that would allow the East European peoples to choose their own forms of government through genuine elections.

Eastern Europe is the natural field for political initiatives by Western Europe. Our allies' historical fatigue stems in part from the fact that for forty years their role has been defined by a negative mission—stopping further Soviet expansion. It can be cured by devoting energy to the positive mission of promoting peaceful change beyond the Iron Curtain. Holding the line against the Red Army has principally involved sacrifice and risk, but supporting the development of pluralism under the nose of the Red Army requires ingenuity and inspiration. It is a task that will not only enhance Western Europe's security but also help to restore its sense of purpose.

VI

Arms control should be treated as only one part of Western defense policy and not vice versa. Arms negotiations are a political imperative, indispensable in holding the NATO alliance together and for winning support in Congress for adequate defense budgets. For too long, however, many Western leaders have endorsed arms control as an end in itself, regardless of the impact that particular agreements would have on our strategic position. Moscow, on the other hand, has traditionally sought to use arms control to achieve political and strategic ends—to lull the West into a false sense of security, to limit developments in American weapons technology, and to preserve or increase Soviet advantages in weapons deployments. It is time for the United States to borrow a page from the Kremlin's negotiating handbook.

Since Soviet superiority in conventional arms represents the greatest threat to Western security, cuts in those forces should be the top priority of Western arms control strategy. Moscow's main goal is to reduce the numbers of strategic nuclear weapons and to stifle the Strategic Defense Initiative (SDI) while preserving its advantage on the conventional level, because that would maximize the political importance of its conventional superiority. Therefore, it is imperative that the United States link progress in the Strategic Arms Reduction Talks (START) to progress in conventional arms control negotiations.

Western conventional arms control proposals should focus geographically on the European central front, the most mili-

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14 FOREIGN AFFAIRS

tarily congested territory in the world, and should seek to
reduce those weapons that are most useful for offensive war-
fare. These should include at a minimum reductions in tanks
and self-propelled artillery, even beyond those proposed by
Gorbachev at the United Nations. The weapons must be de-
royed rather than pulled back into the Soviet Union; other-
wise Moscow could redeploy them in a matter of days. In
addition, military bases and supply depots should be relocated
away from the front in order to make surprise attacks more
difficult. NATO governments must insist in arms control talks
that Gorbachev fulfill his pledge to accept "asymmetrical re-
ductions" on the conventional level.

Gorbachev's rhetoric about reconfiguring Warsaw Pact forces to fit a "defensive" doctrine has been all talk and no action. His pledge in his recent U.N. speech to demobilize 500,000 troops and retire 10,000 tanks represents a significant symbolic gesture. But we must not pretend that it solves the security problem posed by the Warsaw Pact's tank armada (currently about 53,000).¹ Thus, if the 5,000 tanks withdrawn from East Germany, Czechoslovakia and Hungary are not destroyed but simply parked on the Soviet side of the border, they can be redeployed rapidly. Even if the tanks were destroyed, the Warsaw Pact's tank advantage would drop only slightly.

In addition to linking the strategic and conventional arms
control talks, the new administration should redirect the U.S.
approach to the START negotiations.

Our problem on the strategic level, which began in the mid-
1970s and threatens to become much worse in the 1990s, is
the growing vulnerability of our land-based missiles and com-
mand-and-control systems to a first-strike attack by the most
accurate and powerful Soviet missiles. The Reagan Adminis-
tration's effort to cut strategic forces by 50 percent focused
too much on simply reducing the total number of strategic
weapons instead of reducing the vulnerability of U.S. strategic
forces and thereby enhancing strategic stability. The real test
is not whether the treaty reduces the number of nuclear
weapons but whether it reduces the likelihood of nuclear war.
We must ultimately judge the value of any START agreement
by whether it increases the security of our strategic forces and

¹ The Military Balance 1988-1989, London: The International Institute for Strategic Studies, 1988, p. 237.

AMERICAN FOREIGN POLICY 15

decreases the incentives for either side to resort to nuclear
weapons in a crisis.

That is where the current START formula falls short. Under its terms, both sides would reduce their arsenals to 1,600 launchers including heavy bombers, ICBMs and submarine-launched ballistic missiles, and to 6,000 warheads, of which only 4,900 would be permitted on ballistic missiles. While such radical reductions might be politically appealing, close scrutiny shows that they actually increase the vulnerability of U.S. forces. Moscow would retain a land-based ICBM force composed almost entirely of the newer SS-18, SS-24 and SS-25 missile launchers, all of which are first-strike weapons. At the same time, the cuts would reduce the number of targets inside the United States that would have to be destroyed for a first strike to succeed. Assuming that after reductions the United States would choose to retain its most accurate and modern weapons, the ratio of Soviet first-strike warheads to U.S. first-strike targets would grow drastically worse. In addition, the prospective reductions would restrict the deployment of our most capable and survivable force, the fleet of Trident II submarines, to no more than 17 boats. As a result, this force could well become vulnerable, for some number will always be in port or off-line, and the remainder, reduced to, say, ten boats, will be tracked by Moscow's fleet of 270 attack submarines.²

Some argue that these issues do not matter, because under the proposed START agreement we would be allowed to reconfigure our strategic forces to account for the new ceilings. They contend that we could build a new fleet of smaller submarines that would carry fewer missiles and a new generation of land-based missiles that would carry fewer warheads. This argument is flawed for two reasons. First, the START force reductions are to be carried out over seven years, while any programs to develop and deploy entire new strategic systems would take a decade or more. Second, it is totally unrealistic to think that Congress, which expects arms control to produce cuts in the defense budget, would vote to increase military spending by the tens of billions of dollars necessary to overhaul completely our strategic force posture.

Instead of seeking an arbitrary 50-percent reduction, the Bush Administration should consider adopting a two-part pro-

² Edward L. Warner III and David A. Ochmanek. *Next Moves: An Arms Control Agenda for the 1990s*. New York: Council on Foreign Relations, 1989. pp. 46-47.

16 FOREIGN AFFAIRS

posal, with the first level designed to meet minimum U.S.
requirements and to produce a quick interim agreement and
the second level directed to major reductions in first-strike
weapons. In formulating our proposal for the first stage, we
should calculate what kind of strategic force posture our secu-
rity requires and propose launcher and warhead ceilings that
could involve some reductions from present levels but would
not impede the necessary U.S. weapons programs, particularly
the mobile Midgetman missile. In addition, since the United
States observed and the Soviet Union ignored the moderniza-
tion restrictions of the Strategic Arms Limitation Talks treaties,
this initial agreement would permit unrestricted moderniza-
tion.

After the completion of the interim agreement, the two sides
would focus on the far more difficult objective of increasing
strategic stability by reducing the number of warheads on both
sides capable of destroying hardened military targets in a first
strike. Both superpowers would be allowed to retain an equal
number of counterforce warheads. But the level of these most
threatening weapons would be scaled back dramatically—far
more than by the current START proposal. This should involve
a 75-percent cut from the present level of such Soviet weapons
and should also require reductions in planned deployments of
comparable U.S. weapons, such as the MX, the Midgetman and
the Trident II D-5 missiles.

This second agreement would also address the issue of strategic defense. As long as the Soviet Union possesses its formidable arsenal of first-strike weapons, the United States must press forward with the SDI. Our position should be that research, development, testing and deployment of defensive systems is not negotiable. Only the extent of our deployments should be subject to limitation through mutual agreement and those deployments should be calibrated to the extent of the Soviet counterforce threat.

A two-stage approach along these lines offers the best prospects for successful nuclear arms control. It would enable Presidents Bush and Gorbachev to conclude quickly an interim agreement capping the number of launchers and warheads, though unlike the current START formula the accord would not inhibit U.S. weapons programs needed to redress the asymmetry in strategic vulnerability and the imbalance in counterforce weapons. It would also create a stable foundation for a treaty to enhance strategic security by reducing the number

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AMERICAN FOREIGN POLICY 17

of counterforce systems to levels that make a successful first-strike attack on the other side's strategic forces militarily in-feasible.

VII

The two regional conflicts requiring immediate presidential action, Afghanistan and Central America, represent opposite poles in American policy. Our program to aid the Afghan resistance has received bipartisan support, has operated continuously for almost a decade and verges on ultimate success. Our assistance to the Nicaraguan freedom fighters has been subjected to partisan bickering, has been at best episodic and has failed so far. In distant Afghanistan, we learned that a sustained, bipartisan program of large-scale assistance to anticommunist freedom fighters can produce major geopolitical gains. We should apply the same lesson to the nearby and strategically critical conflict in Central America.

In Afghanistan, as Moscow's tanks retreat, one round of the great game closes—but yet another one begins. Our goal has been twofold, to force the Soviet Union to withdraw and to restore the Afghan people's right to self-determination. To achieve the former does not automatically accomplish the latter. First of all, the communist regime in Kabul must be displaced. The best solution would be the removal of the Soviet puppet regime through the direct talks now taking place between Moscow and the resistance leadership. But should those talks stall or fail we must continue to provide whatever kinds of weapons the resistance requires to topple the Kabul regime. Since the character of the fighting has changed from guerrilla warfare to battles for taking and holding cities, the United States must upgrade its assistance quantitatively and qualitatively, particularly in terms of antiaircraft missiles, long-range mortars, and mine-clearing devices and equipment.

It does not serve American, or Afghan, interests for the United States to disengage before a political process is in place that will establish real self-determination for the Afghan people themselves. If the country collapses into a civil war with dozens of tribal warlords ruling their separate fiefdoms, the Kremlin will seize this as a lever to regain a measure of influence by supporting one or another group in the fighting or by declaring the need to keep forces in a "security zone" in northern Afghanistan. Therefore, at a time when our weapons pipeline still gives us influence, we need to address directly the critical

18 FOREIGN AFFAIRS

issue of establishing, through the traditional Afghan means of
a tribal assembly and through elections, a post-communist
government that truly represents the people.

Central America poses far more difficult and, from the U.S. point of view, far more critical problems. Our interests are not threatened by Nicaragua simply because its government systematically violates human rights and spouts anti-American rhetoric. A dictatorship, even a totalitarian one, does not threaten our interests per se. Rather, the Sandinista regime threatens our interests only because Managua has forged links with the Soviet Union and has become a base for indirect Soviet subversion of other Central American states such as El Salvador. The problem is not that the Nicaraguan government is communist but that the communist government of Nicaragua is inherently expansionist. As the Sandinistas freely admit, and even boast, they seek "a revolution without frontiers" in Central America and insist on the right to aid communist guerrillas in neighboring countries.

At the first opportunity, the Bush Administration must impose linkage between the issue of Soviet access to U.S. capital, credits and technology and that of Soviet military assistance to Managua. Gorbachev must be made to understand that Nicaragua is a neuralgic issue for us. While academics might debate whether the Monroe Doctrine has become obsolete, the United States cannot allow the Soviet Union or any other foreign power to provide arms to a virulently anti-American and aggressive regime in the western hemisphere. Given the Soviet economy's pathetic condition, our economic power represents tremendous leverage. If we link these issues, we should be able to profit politically, as well as economically, from our economic relationship with the Soviet Union.

At the same time, we must recognize that the Sandinista leaders have made a mockery of the Arias peace plan, despite the cutoff of U.S. assistance to the contras. Managua permits fewer civil liberties and holds more political prisoners today than it did when the so-called process of democratization began. In its direct talks with the contras, it has in effect demanded surrender, rather than opening the way to a political compromise. Moreover, the Nicaraguan-backed communist guerrillas in El Salvador have dramatically stepped up their terrorist and military attacks.

The Bush Administration must determine, once and for all, the viability of the Arias peace plan. If the Sandinista-contra

AMERICAN FOREIGN POLICY 19

talks cannot achieve their objective, they should be ended. Since endless negotiations work to the advantage of the Sandinistas, the United States should undertake a final, 90-day effort to breathe life into the peace process. If that fails to produce a concrete, workable plan for genuine democracy in Nicaragua, the president should request from Congress a major military and humanitarian aid package for the contras. Coupled with the effort to cut off Soviet aid to Managua through superpower talks, this policy would represent a pincer movement against the Sandinistas, with Moscow putting the squeeze on one end and the contras on the other.

The United States today faces a clear choice: Do we oppose communist subversion in a series of protracted wars throughout Central America or at its source in Nicaragua? Managua's leaders are avowedly committed to supporting anti-U.S. insurgencies throughout the region. If Nicaragua becomes a safe haven and an arms conduit for communist guerrillas, we will be doomed to decades of facing the messy problems of advising our friends in counterinsurgency warfare.

VIII

Revitalizing the Western alliance, redirecting the arms control process, and resolving the critical regional conflicts in Afghanistan and Nicaragua should represent America's immediate foreign policy priorities. Gorbachev's admission of Soviet economic failure and his need for a breathing spell in the East-West competition so perestroika can take root creates an excellent opportunity for the United States not only to enhance the West's security but also to promote a more stable peace through a determined strategy.

This is not to say that Moscow's economic failures will make Gorbachev a pushover. His toughness and intelligence will more than compensate for his country's economic weakness, and his consummate ability in diplomacy and political maneuver will guarantee that he seldom winds up with the short end of a deal. If Western leaders want to avoid being taken to the cleaners, they must understand what Gorbachev wants and how the West should respond.

Or his first priority, strengthening the Soviet Union's economy, he will seek free access to Western capital and technology. The United States, Western Europe and Japan must coordinate their policies so that the West exploits its economic power for political effect. We should go forward with unsubsidized trade

20 FOREIGN AFFAIRS

in nonstrategic goods on a cash-and-carry basis. But until the
Soviet Union overhauls its domestic economic system and
discontinues its aggressive policies, it is not in our interest to
bankroll reforms that will either squander our loans or bolster
our adversary.

On his second priority, ending the Soviet Union's interna-
tional isolation, Gorbachev will seek to separate the United
States from Europe, particularly Germany, and to open a new
relationship with China. We must undertake a new effort to
reinvigorate the Western alliance and to infuse Western Eu-
rope with the positive purpose of fostering peaceful change in
Eastern Europe. If Gorbachev satisfies China's three obstacles,
we should welcome a normalization of Sino-Soviet relations.
We can be confident that, since China's top priority remains
economic development, our relations with Beijing will continue
to be closer than the Kremlin's.

On his third priority, arms control, he will seek new agree-
ments that will reduce strategic weapons stockpiles but preserve
the present Soviet advantage in counterforce capability. In
order to reduce the main threat to the West—Moscow's con-
ventional superiority—we must link progress in START to pro-
gress on conventional arms control. We must also recast our
strategic arms negotiating positions so that a START treaty will
enable us to restore the counterforce balance and eventually
to enhance strategic stability.

On his fourth priority, prevailing in Third World conflicts, he will seek agreements that appear to settle the conflicts but that actually keep his client regimes in power. We possess the leverage necessary for the freedom fighters in Afghanistan. Nicaragua and Angola to prevail. We must never sign an agreement with the Soviet Union that undercuts, militarily or politically, those relying on our support, and we must exploit linkage to promote the retraction of the Soviet empire.

In the short run, we can sympathize with the thrust behind
many of Gorbachev's aspirations. We both want to reduce
military competition and the danger of nuclear war. We cer-
tainly should applaud those of Gorbachev's reforms that re-
duce, even marginally, the repression and poverty which plague
the people of the Soviet Union. At the same time, we must
keep in mind that in the long run the goals of the two sides
diverge diametrically. Gorbachev wants reform because he
wants a stronger Soviet Union and an expanding Soviet empire.

AMERICAN FOREIGN POLICY 21

We should support those reforms in the hopes of making the
Soviet Union less repressive at home and less aggressive abroad.

As the outpouring of sympathy and support for the victims of the Armenian earthquake so vividly demonstrated, there is a great well of friendship for the Russian people in the United States. The people of the United States and the people of the Soviet Union can be friends. Because of our profound differences, the governments of our two nations cannot be friends—but we cannot afford to be enemies. Gorbachev's historic challenge is to implement reforms that will remove those differences.

JAN 10 1989

FOREIGN AFFAIRS

AMERICAN FOREIGN POLICY

Richard Nixon

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AMERICAN FOREIGN POLICY 3

Fourth, as Gorbachev surveys the global political scene, he must be struck by the fact that instead of improving the Soviet Union's position in the world, the Kremlin's foreign policy has managed to unite all the world's major powers against Moscow. The United States, Canada, Western Europe, Japan and China—which together account for over 60 percent of the world economy and which pose the threat of a two-front engagement in any world conflict—have cooperated actively for more than 15 years in opposing Moscow's traditional expansionist ambition. Moscow's old thinking led to a dead end, so Gorbachev has launched his “new thinking” in foreign

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AMERICAN FOREIGN POLICY 5

Gorbachev's most profound problem is that he still believes in Marxism-Leninism. Even if he wins his political and bureaucratic battles, this handicap will ultimately doom his reforms to failure. Rapid, self-sustaining economic growth has occurred only in countries that respect the right of individuals to own private property and that allow unregulated prices and the laws of supply and demand to allocate economic resources. Gorbachev has expressed a willingness to grant farmers long-term leases for private farming and has stated that some prices will be decontrolled in the early 1990s, but he still wants to keep the party-state apparatus in firm command of the economy as a whole. While there have been several examples of economies moving from capitalism to communism, there are no examples of economies moving from communism to capitalism. No one has ever constructed a successful halfway house between a market-based and a command economy.

Given the inefficient central planning system and the irrational pricing system, no foreign investor today has the slightest idea of how to judge which economic risks in the Soviet Union are worth taking. Making loans to the Kremlin is like laying down chips on the dice table; some bets may pay off but the odds are that in the long run the money will be wasted. In fact, it is not even in Gorbachev's interest for the West to provide economic assistance before fundamental economic reforms have been institutionalized. A banker does no favor to a borrower by making him a bad loan. We should not enable the Kremlin to borrow its way out of today's problems and thereby delay the inevitable day of addressing the causes of those problems.

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We should bear in mind a remark made to me in 1953 by Field Marshall Slim, then the British governor-general of Australia. In arguing for a dialogue between the United States and the Soviet Union, he said, "We must break the ice. If we don't break it, we will all get frozen into it so tight that it will take an atom bomb to break it." Today, the ice has broken even before the end of winter. We are witnessing the thaw that brings the promise of spring. While it is a period of great possibilities, we must tread carefully or risk falling into the icy waters.

We have to recognize that the situation we face now is infinitely more complex than the one we faced at the outset of the cold war forty years ago. At that time, the threat was as clear as Stalin's Iron Curtain and his belligerent rhetoric about the inevitability of war, all of which enabled President Truman to prevent a return to isolationism, adopt a policy of containment and win bipartisan support for entry into NATO and unprecedented levels of peacetime defense spending.

Gorbachev has brilliantly changed the game. In Europe, he has discarded the traditional Soviet tactics of diplomatic bluster and military threat and has mastered those of deceptive propaganda and political maneuver. He has substituted the wiles of diplomacy for the threat of force as his chosen instrument for foreign policy conquests. As a result, at a time when Soviet superiority in conventional military forces and in accurate land-based intercontinental ballistic missiles (ICBMS) is larger than ever before, he has made more progress toward the traditional Soviet objective of dividing the NATO alliance than any of his predecessors. We cannot counter his "peace offensive" simply by loudly warning about the military threat of Moscow's Red Army. Instead, we must launch our own political offensive to achieve our strategic and geopolitical objectives.

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AMERICAN FOREIGN POLICY 9

v

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AMERICAN FOREIGN POLICY 11

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VI

Western conventional arms control proposals should focus geographically on the European central front, the most militarily

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AMERICAN FOREIGN POLICY 15

² Edward L. Warner III and David A. Ochmanek, *Next Moves: An Arms Control Agenda for the 1990s*, New York: Council on Foreign Relations, 1989, pp. 46-47.

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AMERICAN FOREIGN POLICY 17

VII

The two regional conflicts requiring immediate presidential action, Afghanistan and Central America, represent opposite poles in American policy. Our program to aid the Afghan resistance has received bipartisan support, has operated continuously for almost a decade and verges on ultimate success. Our assistance to the Nicaraguan freedom fighters has been subjected to partisan bickering, has been at best episodic and has failed so far. In distant Afghanistan, we learned that a sustained, bipartisan program of large-scale assistance to anticom-munist freedom fighters can produce major geopolitical gains. We should apply the same lesson to the nearby and strategically critical conflict in Central America.

[LC]

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AMERICAN FOREIGN POLICY 19

VIII

On his first priority, strengthening the Soviet Union's economy, he will seek free access to Western capital and technology. The United States, Western Europe and Japan must coordinate their policies so that the West exploits its economic power for political effect. We should go forward with unsubsidized trade

20 FOREIGN AFFAIRS

On his fourth priority, prevailing in Third World conflicts, he will seek agreements that appear to settle the conflicts but that actually keep his client regimes in power. We possess the leverage necessary for the freedom fighters in Afghanistan, Nicaragua and Angola to prevail. We must never sign an agreement with the Soviet Union that undercuts, militarily or politically, those relying on our support, and we must exploit linkage to promote the retraction of the Soviet empire.

AMERICAN FOREIGN POLICY 21

We should support those reforms in the hopes of making the
Soviet Union less repressive at home and less aggressive abroad.
the victims

As the outpouring of sympathy and support for the victims
of the Armenian earthquake so vividly demonstrated, there is
a great well of friendship for the Russian people in the United
States. The people of the United States and the people of the
Soviet Union can be friends. Because of our profound differ-
ences, the governments of our two nations cannot be friends—
but we cannot afford to be enemies. Gorbachev's historic
challenge is to implement reforms that will remove those
differences.

JAN 30 1989

OFFICE OF RICHARD NIXON
5777 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675

January 27, 1989

I thought you might be interested in an article TV Guide asked President Nixon to write about using television effectively. You will see that it departs from the conventional wisdom about how to get along with the media.

Together with his Foreign Affairs article, which I sent
you last week, this completes RN's transition report!

FEB - 6 1989

OFFICE OF RICHARD NIXON

February 2, 1989

Mr. Strobe Talbott
Time Inc.
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036

Dear Strobe,

I was sorry to see you lend such credibility to the fig leaf William Shawcross applied to the naked failure of liberal orthodoxies about the Indochina conflict. "Richard Nixon's secret bombing of Kampuchea in 1969," together with the incursion the following year, was principally responsible for sapping communist resolve, saving American and South Vietnamese lives, and leading to a more equitable deal in Paris. The principal geopolitical factor behind "the chaos in which the Khmer Rouge thrived" was the withdrawal of American power and authority from Indochina in 1975, which makes the United States Congress far more responsible for the Cambodian holocaust than RN. But fundamentally, those who are really responsible for plunging Indochina into darkness were the communists in Vietnam and Cambodia whose savageries were tolerated or explained away, and frequently still are, by those Americans who made it so difficult for Nixon and Kissinger to achieve an honorable peace to begin with.

Not for publication

FEB 14 1989

OFFICE OF RICHARD NIXON

February 3, 1989

Memorandum From John H. Taylor:

A close friend of RN called recently to say
that he'd gotten a call from a key member of the
team ABC has recruited to make a prime-time
program out of the error-ridden Woodward and
Bernstein book *The Final Days*. The man at first
said only that he was working on a film about the
Nixon Presidency. Only when our friend asked did
the fellow admit that this was indeed *The Final
Days*. It may well be that the producers wish to
recruit other of President Nixon's friends and
family and are therefore covering up the true
nature of the project as long as possible, since
they must be aware of the reaction that they would
get from RN loyalists at the mention of the book's
title. It goes without saying that when the title
*was* mentioned to this good friend, the
conversation ended quickly.

Nonetheless, this incident gives us the
opportunity to raise this matter with a wider
circle of RN's friends and colleagues. Our
practice with most television programs have been
simply to let people know what RN's policy was
about cooperating but to avoid explicitly urging
that others follow his lead. But *The Final Days* had near-tragic consequences in the Nixon Family when it was first released. Because of the
singularly odious and vicious nature of this
project, we are asking everyone, in deference to
the Nixon family, to refuse to have anything to do
either with this project or indeed for the time
being with ABC.

WP 02/12

A Kissinger Plan for Central Europe; Bush Listens ...

A Kissinger Plan for Central Europe; Bush Listens to Ideas on U.S.-Soviet
Compact Dealing With Region
By Don Oberdorfer
Washington Post Staff Writer

Former secretary of state Henry A. Kissinger has proposed an East-West
political settlement in Central Europe to end four decades of Cold War
antagonism, according to Bush administration sources.

Kissinger discussed his ideas with President Bush, Secretary of State James
A. Baker III and other top administration officials in a Jan. 28 White House
meeting, the sources said.

Baker is reported to be ready to order a serious study of the proposal, which
calls for a historic U.S.-Soviet compact designed to usher in a new era in
international relations.

But some specialists on European affairs in the State Department have expressed dismay bordering on horror at Kissinger's concepts, saying that they would destroy the U.S. political consensus on East-West issues, disrupt the Atlantic alliance and provide unnecessary and unjustified benefits to the Soviet Union in Eastern Europe.

About the most positive thing said about Kissinger's ideas by several State
Department specialists is that they are "quintessentially Kissingerian" in their
breathtaking ambition to redefine East-West relations but time "morally
troubling" in their implications.

Kissinger's basic concept is that the weakening of the Soviet-dominated East
European bloc and, to a degree, of the U.S.-led NATO alliance requires "the
first comprehensive discussion about the political future of Europe since the
outbreak of World War I."

The object of high-level and highly confidential East-West explorations,
according to Kissinger, should be a European political settlement involving
trade-offs between the Soviet Union and the West regarding Eastern Europe.

Sources familiar with Kissinger's ideas said he envisions further dramatic
easing of Soviet political controls over the Eastern European nations of
Moscow's post-World War II empire and Soviet acquiescence in national self-rule
by those countries without the threat of renewed Soviet military intervention.

In return, the West would provide some form of security guarantees that NATO
would not advance into Eastern Europe or utilize those nations as a threat to
the Soviet Union.

As a deal is made and tensions are eased, Kissinger has suggested, major
reductions in military forces of the East and the West could take place in
Europe without dangerously weakening the respective alliances.

Kissinger argues that dramatic changes are taking place in both blocs in
Europe and that future arrangements based on political understandings between
the principals on the two sides will be safer and more stable than a situation
that is just allowed to develop.

A central objection to Kissinger's ideas cited by career officials is that his plan could involve U.S. complicity in consigning Eastern Europe permanently to the Soviet sphere of influence.

The Atlantic Alliance in its current state would have great difficulty
reaching the sort of consensus necessary for negotiating a Kissinger-style
arrangement with the East, specialists said.

Moreover, the Kissinger plan as seen by these officials would involve paying
the Soviets a price they are not requesting in order to obtain a loosening of
their Eastern Europe grip, a process that is under way and seemingly is almost

FEB 21 1989

ANNALS OF LAW

THE HILL CASE

IN mid-morning on a Tuesday in January, 1986, I got a phone call from Richard Nixon. "Did you see Tony Lewis's review of that book in Sunday's *Times*?" he asked. "Why don't you check it out? Maybe we'll find out what really happened in that case."

"That case" was Time, Inc., v. Hill, a privacy dispute that had been decided by the Supreme Court on constitutional grounds in 1967. "That book" was a new volume titled "The Unpublished Opinions of the Warren Court." In the book the Supreme Court historian Bernard Schwartz, a professor at New York University School of Law, analyzed more than a dozen major Warren Court cases—including Time, Inc., v. Hill—in the light of previously secret draft opinions and Justice-to-Justice memoranda that had been made available to him as he was doing research for a biography of Earl Warren.

The writings analyzed by Schwartz reveal intense, sometimes bitter internal debate within the Court over outcome and language; complex political alliances among the Justices; and details of strategies, tactics, logrolling

compromises, and occasional complete reversals produced by the opinion-writing procedures of the Court. The process, which has generally been cloaked in absolute secrecy, turns out to be not very different from the well-known back-room lobbying among legislators. By far the most acrimonious political struggle described in Schwartz's book is the clash between Justices Hugo Black and Abe Fortas over Time, Inc., v. Hill.

Now, what does all this have to do with Richard Nixon? Why was he interested in pursuing the story of the Hill case twenty years after it was decided? What did he think that the Schwartz book might reveal?

The answers to these questions call up fragments of personal memory—a collage of law, politics, and personality covering almost a quarter-century. The memories touch on a large expansion of the public events and public names of that period: the "Nixon comeback" of 1962-68; the contest between the Hugo Black-William Douglas "absolutists" and the Felix Frankfurter "balancers" on the Supreme Court; the rise and fall of Justice Fortas; the legal origins of the present-

day tension between rights of the press and rights of privacy; and, around the edges, even a little bit of China, Vietnam, and Watergate. The fragments fit together into a snapshot of one of those moments in the nineteen-sixties when our politics, for better or for worse, reached a turning point.

IT is said that Richard Nixon, after his defeat in the 1962 California gubernatorial election, was persuaded (I think it more likely he decided on his own) to go East to establish a new venue for his contingent careers in law and politics. Elmer Bobst, chairman of the Warner-Lambert Pharmaceutical Company and a paterfamilias to the Nixons, brought him together with Warner-Lambert's law firm of Mudge, Stern, Baldwin & Todd. After all the shuffling, the firm emerged with the name Nixon, Mudge, Rose, Guthrie & Alexander. I had been with that firm since my graduation from Brooklyn Law School, in 1949, and by 1963, when Nixon joined the firm, I was more or less its chief of litigation.

As a matter of self-interest and personal curiosity, I took it upon myself to help Nixon adjust to the jargon and the style of a Wall Street law firm. Although I was not a Republican, I was not much of a Democrat, either, so the task of fitting the firm and its new senior partner together did not involve any great ideological deformation for me. And, while I was interested in politics as a form of litigation and in Nixon as a part of history, my main objective was to involve Nixon with legal work that was suitable to his talents and his public standing.

Working with the other senior members of the firm, Nixon was quickly successful in attracting and handling corporate clients. Finding the right piece of litigation for him to "go public" with took a little more time. The opportunity came when a case I had tried to a successful conclusion before a New York State court jury in 1962 went to the United States Supreme Court. The New York jury had decided that Time, Inc., had violated the privacy of our clients, the Hill family. Time, Inc., had appealed.

The decision of the Supreme Court

to hear the case established that public issues of large consequence were involved. It also offered an attractive political twist: Richard Nixon, who had apparently passed from the political scene, arguing for the right of privacy against one of the nation's largest publishers. I suggested to Nixon that he argue the appeal, the clients joined in the request, and Nixon agreed to do so.

Nixon believed that he ran a large risk, because some of his old ideological enemies now sat on the Court and would have their knives out for him. But he also saw that his emergence as a skilled Supreme Court advocate could form a valuable part of people's perception of him as a "new Nixon." Moreover, the Hills were sympathetic clients —a normal middle-class mother and father who valued their privacy and their children's. In arguing their case, Nixon would have the best possible forum in which to express his deeply held feelings about press abuses of privacy. He would be seen as a disciplined advocate respectful of constitutional principles, not as the bitter politician who after losing the California gubernatorial race had lashed out at the press in his famous "last press conference."

So the stage was set for Nixon to make his début before the Supreme Court.

ON September 9, 1952, three convicts escaped from the federal penitentiary, in Lewisburg, Pennsylvania, and, a few days later, after stealing an automobile, shotguns, ammunition, and money, invaded the home of James and Elizabeth Hill, in the Philadelphia suburb of Whitemarsh. Hill, his wife, and their three daughters, aged eleven, fifteen, and seventeen, and twin sons, aged four, were held hostage for nineteen hours. Except, of course, for the general restraint, the convicts behaved in a decent, even gentlemanly, manner toward the terrified captives, and left without doing harm to the family. Ten days after the event, the convicts were apprehended on the Upper West Side of Manhattan. Two of them and a detective were killed in a gun battle, and the third was captured alive.

The immediate aftermath saw a great deal of public and press interest, particularly while the convicts were still at large, and also some open speculation that there had been acts of sexual violence involving Mrs. Hill and her

teen-age daughters. The Hills tried to keep publicity to a minimum, emphasizing the absence of violence and otherwise declining all comment.

That November, the Hills moved to Connecticut, and they subsequently took pains to shield the family from reminders of the bizarre episode. They rejected all requests for magazine interviews and all offers of payment for their collaboration in telling the story of the incident. "For the best interests of our children," Mr. Hill wrote in answer to one such request, "we have felt that it was best to avoid any course of action that might remind them of our experience in September 1952. Following this policy we have refused all radio, television, magazine, newspaper, etc. offers connected with that experience."

Gradually, public curiosity died away.

More than two years later, in the February 28, 1955, issue of *Life*, a review of a new Broadway drama, "The Desperate Hours," described the play as a "reënacted" account of the ordeal of the Hill family. Neither the word "fictionalized" nor any word suggesting fictionalization appeared in the piece. The review was part of what *Life* called a "True Crime" story, and it was accompanied by photographs of the Hills' former home, in Whitemarsh. Members of the cast of the play, which was then having a pre-New York tryout in Philadelphia, were transported by *Life* to what it called the "actual" house and were photographed there in episodes from the play. Some of the large photographs depicted a series of vivid scenes of violence—scenes of a kind that the Hills had repeatedly said had not occurred during the actual incident.

Because of the *Life* story, the incident once again became a central part of the Hills' life. The original curiosity and speculative questioning flared up, with increased vigor, in their new community. A few days after the article appeared, Mr. Hill called upon a Harvard classmate, Randolph H. Guthrie—who was my senior law partner—and asked him to take legal action. The case was assigned to me for investigation and trial. Our first step, of course, was simply to ask *Life*

to print a retraction of the story. *Life* refused. We filed suit.

Extensive pretrial discovery took place. It revealed that the *Life* article and the ensuing reëmergence of the Hill family into the public eye were essentially the result of a coincidence: the pre-Broadway tryout of "The Desperate Hours" was in Philadelphia, and thus near a spot—the former Hill home—where a superficially similar incident had occurred. A chance re-

mark about this coincidence in a brief corridor conversation between *Life's* entertainment editor, Tom Prideaux, and a colleague stimulated the idea of a review with an unusual "news" angle—something that to *Life*, as a photo-news magazine, was of particular interest. The idea was described

by one of *Life's* editorial people as a "good gimmick." The trial evidence, however, showed that the relationship between the Hill incident and "The Desperate Hours" was extremely thin. The theme of the play had been drawn in a general way from a large number of hostage cases, of which the Hill incident was only one, and the plot was fundamentally different from the actual Hill case.

The novel "The Desperate Hours," by Joseph Hayes, and the play and motion picture that were adapted from it tell the story of a two-day reign of terror by three escaped convicts who invade a home in suburban Indianapolis and hold a family hostage while the leader of the convicts waits for a woman friend to bring him money and attempts to execute a complex scheme to murder a deputy sheriff against whom he has a bitter grudge. Familiar elements of pulp fiction—the brutality of sadistic criminals, the terror of ordinary persons held in bondage outside the law, sordid sexual implications, sudden eruptions of violence, a family rising to heroism—are smoothly combined to give "The Desperate Hours" its dramatic force. The *Times'* review of the book, "Nightmare at the Hilliards'," observed that the "story-line is a familiar one (what happens when a trio of mad-dog convicts hole up in an average home after a jail break)," but that Hayes had "milked the last drop of

horror from his macabre situation.”

In conventional crime-fiction style, the tone of the play is set at the outset by the gang leader's warning to the mother when he enters the house: "Take it easy, lady. ... You scream, the kid owns that bike out there'll come home an' find you in a pool of blood." From start to end, the convicts have contempt for the family and their home. The convict leader, Glen Griffin, tells Dan Hilliard that Hilliard reminds him of his own "little punk" of a father. The family is repeatedly cursed and abused. The father is beaten into unconsciousness; his young son is viciously man handled; the father is forced to hit him as punishment for the boy's defiance of the convicts; an elderly trash collector is brutally murdered; the mother is pushed into episodes of mounting panic. Robish, the duil, hulking lifer, drunkenly menaces the daughter: "Lift your arms, baby. I'm gonna search you personal." The mother and son are to be taken away by the convicts and used as human shields. The family fights back. The son tries to get a message out to the police; the daughter clashes with the convicts, biting the wrist of one of them to get his gun away; the daughter's boyfriend is shot in a rescue attempt; the father ultimately counters violence with violence.

A central theme of the novel and play is the subjection of the father and daughter to the will of the convicts. They are forced to leave the house to help the convicts with their criminal plans to the extent of being virtual accessories in a plot to murder the deputy sheriff. As his family is abused, his son attacked, his daughter threatened, his home turned into a shambles of verbal filth and horror, the father is driven to the point of almost committing murder. A final act of imagination and daring by the father forces the convicts out of the house and saves the family. The gang leader, in a state of shock and under the delusion that he and his brother are once again teen-agers defying their hated father, runs from the house, brandishing an empty gun, and is shot down on the front porch by the deputy sheriff. As the play ends, the father stands on a stairway as the other members of the family return, one by one, to what the play's script describes

as the "havoc" that was their home.

Obviously, as Joseph Hayes testified at the trial, "The Desperate Hours" was not in any sense the story or a reënactment of the Hills' experience. The principal elements of "The Desperate Hours," and the elements that made it a sensational and commercially successful melodrama, are bloody violence, drunkenness, profanity, sex, and heroism. These are precisely the elements that were absent from the Hills' actual experience. The Hills' calm acceptance of their difficult and frightening situation and the surprisingly civil behavior of the convicts were the antithesis of the drama of terror and violence which Hayes created and which became "The Desperate Hours"—so much so that the civility in the Hill incident was the focus of *Time* magazine's original news account of the actual episode, which bore the title "House Party."

Hayes had made these facts clear in a news article that appeared in the *Times* in January, 1955. "Instead of researching any of the specific 'cases'" of hostage-taking, he wrote, "I found it best to let my imagination play with the idea." *Life's* writers and editors read this article and other, similar pieces that Hayes had written elsewhere, at the time the Hill feature was in preparation.

Pretrial discovery also revealed that *Life's* editors had decided that *Life's* "True Crime" format required a highly explicit connection between the Hill incident and the play under review in order for the article to make sense. Accordingly, a series of drafts of the article's text showed a gradual tightening of the relationship. In the first draft, the connection was a generalized one. Then *Life's* editorial process transformed it. The final, published version categorically described "The Desperate Hours" as a re-creation of the Hill incident. "Americans all over the country" who "read about the desperate ordeal of the James Hill family," said *Life* boldly, "can see the story reënacted in Hayes' Broadway play based on the book."

The core of *Life's* response to the Hills' claims was that, notwithstanding disputes concerning its accuracy, the article was protected by the First Amendment. To this the Hills responded that deliberate falsities (*Life's*

saying that there was a close factual link between the play and the Hill incident, and the portrayal of the Hills in a false light) constituted the article's main assertions. They argued that in spite of the realistic format the article was not news but fabrication. The falsities were a wrongful and actionable invasion of the Hills' privacy for purposes of commercial exploitation rather than a constitutionally protected report or comment on newsworthy matters.

After a two-week trial in 1962, the jury found in favor of Mr. and Mrs. Hill and made a large award of damages. (At the insistence of the Hills, no claim was made on behalf of the five Hill children, so that they would not be exposed to the litigation.) The decision establishing the liability of Time, Inc., was affirmed by a 4–1 vote in the New York State Appellate Division and then a 5–2 vote in the New York State Court of Appeals.

RICHARD NIXON'S preparation of his Supreme Court argument in the Hill case began in 1965, shortly after the Court granted Time, Inc.'s, application for an appeal. Just the previous year, in the landmark case of New York Times Co. v. Sullivan, the Supreme Court had decided that a public official suing for libel was obliged to prove that the offending material was published with knowledge of falsity or with reckless disregard of the truth.

Sullivan grew out of the civil-rights struggle of the early nineteen-sixties and the deadly hatred it engendered in many Southern whites for Northern liberalism and its agents. Sullivan himself, an elected city commissioner of Montgomery, Alabama, whose duties included supervision of the police department, brought suit in the Alabama state courts charging that he had been libelled by a full-page advertisement in the *Times* which depicted, in dramatic terms, alleged violations of the rights of local black citizens by the Montgomery police. The advertisement had been placed by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South, a militant civil-rights organization.

The advertisement was vouched for by a responsible person and signed by many well-known figures, and it seemed accurate on its face. The *Times* therefore published it without making a separate check on its accuracy. No-

where in the ad was any charge made against Sullivan by name. Yet the Alabama Supreme Court held that the impersonal statements in the ad were libellous per se—that is, without any need for the plaintiff to prove he had suffered damage—and upheld a then-huge jury verdict for the plaintiff of five hundred thousand dollars.

The Supreme Court reversed the decision on broad constitutional grounds, saying that the challenged advertisement was well within the zone protected by the First Amendment and that political speech of this sort must be protected even if it contains errors, or else political debate cannot be truly free. Therefore, the Court said in Sullivan, a public official cannot collect libel damages for falsehoods relating to his official conduct "unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

In the wake of Sullivan, fresh aspects of First Amendment law were being debated in the courts. The Hill case involved a first look by the Supreme Court at competing claims of individual privacy and institutional press freedom in the post-Sullivan world.

The legal stakes were substantial, and for Nixon, who was preparing to seek the 1968 Presidential nomination, the political and personal stakes were just as high. He could not afford to stumble before his old political adversaries or be seen as simply continuing his war against the press by new means, in a new forum. The only possible answer to these concerns was, as Nixon saw it, meticulous preparation, and I consequently had the opportunity during 1965 and 1966 to see how Nixon prepared himself for a professional "crisis" such as periodically marked his public career.

He began by reading and virtually committing to memory not only the trial record and the state-court decisions in the Hill case but copious quantities of additional background material, including federal and state case law, law-review articles, and philosophical writings on libel and privacy. He read his way through the First Amendment analyses of various law professors and philosophers, including Alexander Meiklejohn, Thomas Emerson, William Prosser, and Edward Bloustein. Among Nixon's read-

ings was the Meiklejohn Lecture, on the subject of the First Amendment, delivered at Brown University by Supreme Court Justice William Brennan in 1965. The famous Nixon yellow pads accumulated, filled with summaries, questions, and preliminary lines of oral argument. As his grasp of the issues tightened, requests came to me for memoranda on fine points that needed elaboration. He scribbled endlessly on drafts and galleys of Supreme Court briefs. As the day of argument approached, there were almost continuous "skull sessions"—question-and-answer sessions with his law-firm colleagues which simulated a court argument. He worked particularly hard at grinding his points down to their essentials, using trial exhibits—especially blowups of photographs and drafts of the offending text—to give his argument its maximum impact. His preparation was almost obsessive; he left nothing to chance. His behavior was not only a matter of professional pride but a sign of his determination not to let his recent defeats drive him from the political arena.

Much of the preparatory work for the argument took place on the margins of Nixon's political and personal life—at lunches and dinners, or during trips to clients' corporate board meetings. A leisurely luncheon with his old friend Edward Teller, for instance, at the Recess Club, on Broad Street, gave him an opportunity not only to discuss strategic nuclear theory but to formulate some of his ideas on privacy.

Nixon particularly valued a com-

panion on airplanes, to protect him from being badgered by well-wishers. Before burying himself in his notes and yellow pads at the start of a flight, he instructed me to answer his questions but otherwise leave him alone. One trip on which I performed my mixed functions of debate coach and security guard took us to Palm Beach. Nixon was scheduled to speak in Florida to members of the board of a company called Investors Diversified Services. The evening before the speech, we went to the home of Warner-Lambert's Elmer Bobst, who lived nearby, for drinks.

We went out for a pleasant dinner at a country club with Bobst and his Lebanese wife, Dodo. Then Nixon and I were driven to the vicinity of Miami, where he was to speak the next day. It had been arranged for us to spend the night at a new house in a real-estate development, but Nixon took one look at the place and his well-honed political instincts and suspicions told him that in the morning the developers would expect to get pictures of him in the house, in order to use his name and photograph for publicity purposes. He ordered the driver to take us back to the Bobst house, about forty miles away.

When we arrived, after midnight, the gates were locked. A high wall surrounded the estate. What now? Nixon told the driver to come back for him at 7:30 A.M. and then said, "Come on, Garment. It's over the wall we go." So over we went, two New York lawyers, briefcases and all. We were able to get into a pool house, which had twin beds, so we went to bed like kids at summer camp.

That night, Nixon talked until we fell asleep. He told me that his greatest interest was foreign policy; he talked about world affairs at length, and said he felt that his life had to be dedicated to the great purposes he had in this field. This man, so fiercely determined to stay in the political arena—for which he was in many ways so ill-suited—told me that he felt himself driven to do so not by the rivalries or ideological commitments of domestic politics but by his pacifist mother's idealism and the abstract, intellectual attractions of foreign affairs. That was the night's theme. Nixon declared that he would give anything or make any sacrifice to be able to utilize his talents and his experience in foreign affairs.

Making money, belonging to exclusive clubs, and playing golf were not his idea of a worthwhile life, he said. Up to then, he had lived "in the arena," and that was where he wanted to be, even if it meant "a much shorter life."

The next morning, I got some confirmation of this view of Nixon. When I woke up, Nixon had left to make his speech. Bobst appeared unsurprised to find me on his premises; Nixon had apparently alerted him to my presence earlier that morning. Sitting by the pool, Bobst and I had a long conversation, mostly about his life and his hopes for Nixon. Bobst, a thoughtful, kindly, public-spirited man who spoke in a basso-profundo voice and looked a bit like Mr. Magoo, was a minister's son. He was known as a stickler for ethics in corporate life, and had played an important role in funding cancer research. His basic views were those of an authentic conservative and a businessman. He was convinced that Nixon would be President, and he told me that he and Nixon had often talked about what Nixon would do in the White House.

Bobst was deeply interested in China, and he spoke to me at some length about that country's history, future, power, beauty, and importance. He also told me that he and Nixon felt that "the most important thing" to be done in world affairs was to "bring China into the world." I gathered that this subject had often been discussed by Nixon and Bobst but that, while they agreed on it, they disagreed on what to do about Vietnam. Bobst thought that it was a disaster that the United States had to get out of quickly, whereas Nixon insisted that the United States' position in Vietnam was that of "a cork in the bottle," and that pulling the cork out could have unknown and possibly catastrophic consequences. As Bobst talked, however, I saw that the real issue between them was whether to get out quickly or slowly. According to Bobst, Nixon accepted the view that Vietnam could not be "won" and the United States would eventually have to withdraw. The pace of withdrawal and the hope that an independent South Vietnam could be preserved were the only real subjects of debate.

Later, on the flight back to New York, Nixon returned to his yellow pads. I did the eating and drinking, and read part of a novel. There were

no questions. There was no more camp talk. China and Vietnam faded away.

NIXON's process of preparation continued until the morning of April 27, 1966, when I anxiously summoned him from the lawyers' lounge in the Supreme Court just before the Court was scheduled to convene. He was still flipping through his yellow pads. When I tried to move him along, he laid a restraining hand on me and said, "Never rush into a public place." We strode slowly to our counsel seats, as if to the strains of "Hail to the Chief"; of course, only he heard them.

At precisely ten o'clock, the nine Justices appeared silently from the red-velvet-draped background, moved to the bench, and took their seats quickly. Chief Justice Warren called the first case, an antitrust case in which the government was trying to force the Pabst Brewing Company, of Milwaukee, Wisconsin, to give up another beer company it had acquired some years before. Then, shortly after noon, he called the appeal in Time, Inc., v. Hill.

Arguing for Time, Inc., Harold Medina, of Cravath, Swaine & Moore, focussed his oral argument on two main points. First, the *Life* article's "falsity" was of an incidental and innocent nature. The article, he said, was basically an accurate depiction of the connection between the Hill family's captivity and the story of "The Desperate Hours." It was therefore constitutionally protected as comment on news. Medina's oral argument dealt principally with this issue, and thus with the similarities between the Hill incident and the play.

Medina also argued that the New York privacy statute involved in the case was overbroad on its face, because it penalized publication even of newsworthy material if the publication was primarily "for the purposes of trade." This argument was drawn from an obiter dictum—an observation by a judge that is not a necessary part of the court's decision—from a single judge, Benjamin Rabin, in a lower-court concurring opinion. Judge Rabin's statement was murky but could be read as suggesting that even truthful and newsworthy material might be actionable if it was intended solely for commercial purposes. If this was the case, Medina argued, the New York statute would be unconstitutional.

Nixon's oral argument emphasized the point that Judge Rabin's lone statement was only an incidental remark, not an integral part of court reasoning in the case. The law of New York, Nixon argued, had been settled otherwise by sixty years of decisions stating that a truthful news account was constitutionally protected. Nixon's main effort, apart from this argument, was to demonstrate that the method by which the text and photographs of the *Life* article had evolved proved that the magazine had created a fictionalized description of "The Desperate Hours" as a "reënacted" account of the Hill incident—in other words, a deliberate fabrication and an admitted "gimmick," designed to justify the use of the former Hill home as the "True Crime" site of a photo-news review of the play. This, in Nixon's submission, satisfied the constitutional test for liability, including the then only two-year-old formulation in New York Times Co. v. Sullivan, even though the original trial of the Hill case had taken place before Sullivan was decided and therefore had not met the Sullivan arguments head-on.

The atmosphere of the Court during the argument provided surprises and intimations. Both lawyers quickly displayed a comprehensive grasp of High Court forensics. Medina, a senior litigation partner at Cravath, had been around the track many times; the surprise was Nixon. In this, his first argument in an appellate court, he sounded like a polished professional of the bar—his footing confident, his language lawyerlike, his organization of material sure and clear. He had true "bottom," responding to dozens of tough questions, and the Court clearly relished the performance. John MacKenzie, who was then covering the Court for the Washington *Post*, wrote that in Nixon's presentation the Court and spectators "heard one of the better oral arguments of the year." At their luncheon after the argument, the Justices, according to "Super Chief," Bernard Schwartz's judicial biography of Earl Warren, expressed surprise that Nixon had done so well. Bruce Allen Murphy, in his book "Fortas: The Rise and Ruin of a Supreme Court Justice," notes that among comments circulating around Washington at the

time was that of Justice Abe Fortas, who said that Nixon made "one of the best arguments that he had heard since he had been on the Court," and that, with work, he could be "one of the great advocates of our times."

The questioning and comments in the Court were ambiguous and tentative, yet furnished some interesting clues. The Chief Justice and Justice Fortas were almost outspokenly on Nixon's side. Chief Justice Warren asked the question that enabled Nixon to address what we thought was the central issue of the case:

MR. CHIEF JUSTICE WARREN: Suppose that *Life* magazine, instead of doing this the way it did, said that this play of Mr. Hayes' is reminiscent [italics added] of the Hill incident. . . . Would you say . . . *Life* could do that without violating your law?

MR. NIXON: Mr. Chief Justice, cruel as it might be . . . I believe that would not be a violation under New York law.

Justice Potter Stewart also seemed favorable, though with considerably less force. Justice Black, in keeping with his long-standing position that any restraint on press freedom, including libel and privacy claims, was unconstitutional, was clearly negative, indicating as much in a persistent line of questioning about whether New York State's privacy statute put impermissible limits on freedom of speech. Justice Douglas, who shared Black's absolute view of First Amendment press protection, was silent. Justice Byron White was openly troubled by Medina's argument on statutory overbreadth and by other technical issues, and wondered aloud whether the New York law might be read as unconstitutionally permitting a suit based on a truthful and newsworthy publication if it was shown to be for purely commercial purposes. The preliminary disposition of Justices John Harlan and Tom Clark was unclear. Justice Brennan's comments were neutral and brief.

Nixon and I came away from the argument feeling that we had scratched out a narrow majority. A sufficient number of Justices seemed to feel that the case involved a real wrong by the *Life* editorial staff and that significant harm had been done to nonpublic people who prized their privacy. The forceful statements by Warren and Fortas were particularly surprising and encouraging. Nixon later commented that these two were political men and so knew firsthand how fierce and lacerating the press could be when it fastened on a target. They would know that for private persons unwanted and false public exposure could be, in Nixon's words, "as traumatic as a physical blow."

We returned to New York at the end of a day that had started a little after dawn and, for Nixon, who worked on the Washington-New York plane, continued until we parted at LaGuardia. I went home, drank a couple of vodkas, and fell into an exhausted sleep.

ARRIVING at work at about ten the next morning, I found on my desk a five-page, single-spaced

memorandum addressed to me from Nixon. This document is the most in-structive example of Richard Nixon's tenacity and work habits that I've read in all the time I've known him, includ-ing the Presidential and post-Presiden-tial years. It was prepared shortly after we had parted at the airport. Upon arriving at his Fifth Avenue apart-ment, overlooking Central Park and a few floors below the apartment of Nel-son Rockefeller, Nixon had dictated a tape of detailed self-critical comments on his own argument and an assess-ment of points, suggested by the Court's questioning, that he would now handle differently, and the tape had been transcribed by Nixon's secretary, Rose Mary Woods, early the fol-lowing morning. There was no reason to believe that the case would be re-argued (a rare occurrence); it was over as far as we were concerned, and the memorandum was a pure exercise in post-argument analysis, an act of intel-llectual self-criticism.

TO: LEONARD GARMENT
April 28, 1966

FROM: RICHARD M. NIXON

Now that the case is over, here are some of the points I believe deserved more em-phasis in the oral argument. I only wish there were some way we could ethically transmit some of these thoughts to the clerks who will be helping the justices write their brief!

### Rabin Opinion

One vulnerable point is that Medina was able to leave the impression that by reason of the Rabin opinion, New York leaves hanging over defendants the pros-pect of liability solely on the basis of "sens-tational news stories which increase circu-lation." We know that this is not what Rabin meant and as a matter of fact I could have pointed out that Medina in his briefs had left open the possibility of liabil-ity where "purely private facts were raked up which outraged community sensitivi-ties," etc.

I think I should have precisely nailed the point that this was dictum and that I should have gone further and given an illustration of the case—perhaps the pic-ture of the person with the deformity—used without relationship to any news story. [This was a reference to Barber v. Time, Inc., a case in which *Time* maga-zine published, in its Medicine section, an unauthorized photograph of a woman with a rare disease.]

### The Facts

I think it would have been most effec-tive after completing my analysis of the LIFE pictures to turn to Justice Fortas and to have directly replied to the question he asked Medina as to whether there had been some "rather ugly incidents" in the play. Medina as you recall answered that question in the negative. I could have then

briefly recounted in a most effective way the murder of the trash man, the killing of two of the convicts, the wounding of the boy friend, Hank's "grabbing" Cindy, even though he may not have "pawed" her, the beating of Hilliard which left him uncon-scious, Hilliard's being forced to beat his son, and the constant use of profanity in its ugliest forms throughout the play.

Nixon, as the world learned from the Watergate tapes, was quite capable of using profanity in private. Public display was the place where he, with some consistency, drew the line. The memo went on:

### LIFE's Responsibility

I should have read that dramatic inter-change in the record where you asked Prideaux if he had read the green [editing] file and he answered, "yes." I could have then followed that up by asking the Judges to read the contents of the file which included Hayes' story as well as the cur-rent news events and then to reach their own judgments as to whether after reading that file and reading the play, any one of them would have proceeded to "assume" that the play was a reënactment of the Hill incident.

I think it would have also been most effective for Brennan's sake to have pointed out that this was most different from *New York Times* [v. Sullivan], where the publisher had not originated the story and where the facts which prove the falsity of the statements appeared in their general files rather than in the story file. Here the publisher definitely read the file which proved the falsity of his statements. In *New York Times* there was no proof that he had read the true statements.

### The Importance of Falsity

While we did get across the point that it was necessary to plead falsity in order to meet the New York definition of "purposes of trade," I think we could have made points by attacking this issue from another angle.

This is [mistakenly being seen as] a First Amendment case. It is generally agreed that neither [knowingly] false statements nor commercial statements deserve First Amendment protection. We therefore could have pointed out that our case did not present a First Amendment problem, not only because the statements were "commercial" but also on the independent ground that they were false. In other words, if the Court was taken in by Black's monologue about all papers being published for profit, they could have still held that clearly apart from the "purposes of trade," i.e., the commercial aspect, the

very fact that the statements were false should have been sufficient to deny them First Amendment protection.

This point, of course, is made most ef-fectively in the brief. But I think in view of the fact that Fortas zeroed in on this point, it might have been quite effective to emphasize it in the oral argument. The heart of the case, in other words, is that false statements invading privacy just like false statements injuring reputation in pri-vate libel cases should not have First Amendment protection, whether the false-hood was negligent or with malice.

I then could have quoted from Bren-nan's Meiklejohn Lecture in which he quoted Meiklejohn as follows: "When one injures another by tongue or pen his verbal attack has nothing to do with the business of governing unless it affects the qualifica-tions of a candidate for public office." Brennan, I think, would have been most impressed by my pointing out that while this quote related to private libel (i.e. false statements damaging reputation), it was on all fours with regard to our case where false statements were used to invade pri-vacy.

I think it would have been very effective to tell the court that we recognize that in this case of first impression the court would want in the first instance to take a precise, limited step and that our case provided a most classic example which could be found for that kind of step.

### LIFE's Motive

I think it would have been helpful to give the Court an idea as to the true nature of the right of privacy and how it differs from defamation. I obliquely an-swered Medina's constantly reiterated contention that LIFE was not trying to hurt the Hills but actually because of its laudatory lies was doing them a favor. What I intended to point out if time per-mitted was that as distinguished from libel (where while it is not a necessary ingredi-ent to the tort it often is present) intent to hurt the plaintiff through the use of false-hood is completely irrelevant in the tort of privacy. LIFE did not intend to hurt the Hills by its publication even though it did not show them the courtesy of asking con-sent before using their name. LIFE just *didn't care* about the Hills. In other words, LIFE was not trying to *hurt* the Hills; it was trying to use the Hills to *help* itself. This is the essential element in those pri-vacy cases under the New York statutes where false statements are used.

### Defendant's Admission on the Difference Between the Hill Incident and the Play

From a purely professional standpoint, my greatest regret is that at the conclusion of my analysis of the six photographs in the LIFE story, I did not turn to the Appel-lant's brief and read the statement "If this had been a documentary it would have been the shortest one-act play in history." In other words, LIFE by its own admission said that the play, which they contend was a reënactment, was over two-thirds fiction as far as the Hills were concerned.

Nixon's memo concluded with an analysis of the constitutional underpin-nings of the right of privacy. Nixon found and predicted the problems in-

herent in the Supreme Court's free-floating rationale for a general right of privacy, as it was stated in Griswold v. Connecticut (1965), the case invalidating a state ban on the prescription or use of contraceptives. In the course of striking down the Connecticut law, Justice Douglas, writing for the majority, created what had not existed before in constitutional jurisprudence — a constitutional right of privacy more general than anything specifically mentioned in the Bill of Rights. This right of privacy, said Justice Douglas, could not be found in any single constitutional amendment, but could be derived from the "penumbras" and "emotions," as he put it, that surrounded the separate clauses.

The muddled language of Griswold brought new confusion to the discussion of the issue of privacy. Griswold became the key authority for the Court's 1973 decision on abortion in Roe v. Wade, and Griswold's confusion, criticized by liberal and conservative scholars, has seriously undermined the legitimacy of Roe for the past sixteen years. More than twenty years after the Griswold decision, in 1987, the confirmation hearings on the nomination of Robert Bork to the Supreme Court were filled with echoes of the problem Nixon saw so presciently.

Some of Griswold's effect on the privacy debate, though, was clear soon after the decision. During the Hill arguments before the Supreme Court, Medina, evidently not wanting to be thought an enemy of privacy, remarked, "Now, it just so happens there is this right of privacy. Whether you find it in the Fourth, Fifth, Ninth, or Fourteenth, I don't know. We recognize it and are for it." Whichever right of privacy Medina was talking about, it was certainly not the privacy right in the New York State statute at issue in the Hill case.

Nixon wrote in his midnight memo:

*The Constitutional Nature of the Privacy Right*

I think what would have been most helpful to the Court in writing the opinion would have been a brief statement clearing up Medina's fuzzy reference to a right of privacy being a constitutional right emanating from the Fourth, Fifth, Ninth and other Amendments (in other words, using the Griswold analogy). This kind of analysis, if followed to its conclusion, is both inaccurate and potentially dangerous from a constitutional standpoint. In Griswold, it was essential to find that there was a "constitutional right to privacy in marriage" since the issue there was the

power of the state to impair that right. Unless it had been found that the right of privacy in marriage had constitutional status, the Connecticut statute could not have been declared unconstitutional.

Here the question is not the power of the state to infringe on a right but the power of the state to recognize and implement a right.

I then intended in my opening statement to pursue the subject by pointing out that there was no "constitutional right to repudiation" and that privacy by analogy should be treated in the same way. The dangers of the other analysis are obvious. First, let us take the state of Wisconsin which had been the subject of the beer argument earlier in the day. Wisconsin is one of the four states which [do] not recognize the right of privacy either by statute or common law. In the event a state court in Wisconsin denied recovery to a plaintiff in a privacy action, that would have been "action by the state" under the doctrine of *Shelley v. Kraemer* and the plaintiff could have appealed to the Supreme Court on the ground that his constitutional right of privacy had been infringed by the state court's action in refusing to recognize it. A parallel danger, perhaps presenting even greater problems as far as the Court is concerned, is that if we should contend that there is a constitutional right to privacy emanating from the Ninth Amendment, the Court would then have the problem in every case to determine whether the right of privacy under the Ninth Amendment or the right of free expression under the First Amendment should prevail where the two come in conflict. After all, the Ninth Amendment states in explicit language that the spelling out of rights in the 8 amendments does not "disparage" other rights which are retained by the people and the state. I think this analysis would have been helpful to the Court; I have not seen it in any of the Law Review articles; and also it might eventually have ended up in an opinion, assuming an opinion is written which goes to the heart of the subject.

I then, of course, would have gone on and pointed out that the right of privacy should be treated like the right to reputation in libel cases as being one of those areas where the state has the power, under the Ninth and Tenth Amendments, to give redress to private citizens where they are injured by other private citizens.

While this analysis would tend to downgrade the right of privacy for which we were contending in our case (below even the position Medina in his rather vague and muddy way was implicitly recognizing) it would have given the "definers" on the Court a hard-rock base of reasoning for recognizing the privacy tort in a very definite, limited, constitutionally defensible way.

The memo revealed two things that were on Nixon's mind that night. Both of them had apparently nagged at his perfectionist soul on our return trip to New York. First, he believed he had missed opportunities to highlight factual arguments that would have helped place the Hill case farther outside the

zone of constitutional protection defined in Sullivan. More important, he regretted his failure to give fuller and more precise expression to his intuition that Justice Douglas's weak reasoning in Griswold was going to get the Court into deep and dangerous constitutional waters.

His objective in the argument he wished he had made would have been to point out that the Court already had a serious problem in its future because of the privacy right created by Griswold and should not compound it by treading still further on state libel and privacy laws. He knew that by making this argument he would demote the concept of privacy from the high status that Griswold had given it—an ironic task for James Hill's lawyer. He thought, though, that if he had laid greater stress on this point the Court might have been more hesitant to impair the vitality of the New York State privacy law governing the Hill case.

MAY and most of June passed without word from the Court. On June 20th, the last day of the term, we had disappointing news: An order had come down restoring the case to the docket for reargument in the fall and specifying the questions to be addressed, most of them dealing with the coverage of the New York statute, the effect of the Rabin concurring opinion, and the definition of "fictionalization" as it related to First Amendment requirements. These questions reflected the doubts voiced by Justice White during the oral argument.

Reargument on October 18 and 19, 1966, was another smooth, profes-

sional performance by Medina and Nixon, but the atmosphere was now less dramatic, more routine. Nixon had interrupted his cross-country campaigning for Republican candidates in the 1966 midterm elections—a crucial phase of his burgeoning Presidential effort—and had set aside three weeks to focus intensively on the altered array of arguments. I felt that Nixon was even better and more relaxed this time. The Court was active in its questions. But the attitudes and the apparent lineup of opinion had clearly changed —and from our point of view, as it turned out, for the worse.

Justice White was now firmly fixed on his concern about the constitutional problems on the face of the New York statute; Justice Brennan's questions were shaped within Sullivan-case contours; and Justice Black engaged Nixon in a fierce ten-minute colloquy in which neither yielded an inch of ground:

MR. NIXON: The article ["Fiction out of Fact," by Joseph Hayes] is significant... as to the question of whether "The Desperate Hours," the article on "The Desperate Hours" in *Time* magazine and the book and the play were reenactments of the Hill incident....

MR. JUSTICE BLACK: ... it showed where he got his inspiration?

MR. NIXON: The question, Mr. Justice Black, is not a question of inspiration. The question is whether the *Life* article is false or true in stating that the Hill incident was a reenactment, not only in terms of the one word but—

MR. JUSTICE BLACK: That word "reënactment"—you could use many other words. If it would have said "reminiscent," it would have been all right?

MR. NIXON: I would beg to qualify that by stating that in answer to the Chief Justice's question on "reminiscent"—his question was quite explicit, his question was in the event that they had used the word "reminiscent" and then had described the Hill incident as it occurred, would there have been liability, and my answer was no. But that is not what happened here....

It has been our argument and our contention throughout this case that "The Desperate Hours"—the heart of "The Desperate Hours"—is a story of violence and bloodshed; that the heart of the Hill incident was the fact that it

EICJ

was one that was distinguished by a lack of violence and bloodshed. And here we have it in the author's own words.

Now, the second point that Mr. Justice Black raised, however, I think also should be commented upon. He referred, quite properly, to the fact that Mr. Hayes had been present at the time that the pictures were taken in the house.

When those pictures were taken in the house, however, it is significant to note what went on in terms of whether the representatives of the defendant discussed with Mr. Hayes the basic question as to whether the article, which was eventually to be written, or at that point "The Desperate Hours" about which pictures were to be taken, whether "The Desperate Hours" was a reënactment.

On that score I refer the Court to page 124 of the record [and] to these questions:

"Question. Very briefly, Mr. Hayes, will you tell the jury whether or not 'The Desperate Hours' is the story of or reënactment of the *Life* episode?

"Answer. It is not a story of—it is not a reënactment of that episode.

"Question." This is the significant one. "Did anybody from *Life* magazine ever ask you whether it was?

"Answer. No, they did not.

"Question. Did you ever tell anyone from *Life* magazine that it was?

"Answer. I did not.

"Question. And you never told anyone of *Life* magazine about any similarities?

"Answer. I did not."

MR. JUSTICE BLACK: Did he not testify in another place, yes, he had? When asked whether he told Prideaux whether there had been a reënactment, Hayes replied, "I told them there had been an incident in Philadelphia?"

MR. NIXON: Exactly. As a matter of fact, he told Prideaux that and—

MR. JUSTICE BLACK: And arranged to get the house?

MR. NIXON: Exactly. And further in this testimony, it will be pointed out that Mr. Hayes, in answer to questions, indicated that the reason that this house was selected was because the play was opening in Philadelphia, and that he could have used any house in Detroit or in California or in New York, or in any other place.

MR. JUSTICE BLACK: Yet in Philadelphia they picked out this house—it

was some distance from Philadelphia—and used it?

MR. NIXON: The play was opening in Philadelphia, sir. That was the point. The play was opening in Philadelphia, not in New York.

MR. JUSTICE BLACK: How did they happen to select the one the Hills had lived in?

MR. NIXON: Because that is where the hostage incident in Philadelphia had occurred. But my point is that as far as the selection of the house was concerned, that it was selected because the play was opening in Philadelphia; and [Hayes] testified that had the play opened in another city where a hostage incident had occurred, that he could have used—and he, of course, would have been delighted in order to get publicity for the play, he could have used any other house....

If I could go further, the point to be made is, during this process, the three-month period in which the article was being written, and during the day in which the pictures were being filmed at the house, in which Mr. Hayes was present, not once did the representatives of the defendant question him as to whether those scenes occurred in that house....

MR. JUSTICE BLACK: Why should he ask him that question? They both understood it had occurred there, and they went there for that reason.

MR. NIXON: The reason, sir, that they should have questioned him was that—and this is the heart of this case; the heart of this case is that the violent episodes pictured in six pictures in *Life* magazine did not occur to the Hills, and *Life* magazine stated, by pictures and by words, that they did.

This is the question that *Life* magazine, the defendant in this case, has not been able to answer, and it has not been able to answer it because it had knowledge; even before they went to the house, may I say, it had knowledge that began from an article in its file—in its file which Prideaux, the picture editor, had read. They had knowledge that as far as this particular incident was concerned, it was one of several that had been read about Mr. Hill, and that the final product was different from any one of them.

The point that we are making in this case is that the *Life* article is false, false in stating by picture, by every editorial device—with no qualification whatever—that the Hill incident was reën-

acted in "The Desperate Hours"; that "The Desperate Hours" family is the Hill family; that the violence that occurred in "The Desperate Hours"—the father beating the son; the violence in respect to the murder of the trashman; the participation, for example, of the father in a plot—unwillingly, of course—for the purpose of murdering the deputy sheriff; the wounding of a boyfriend—as a matter of fact, there was no boyfriend. All of these incidents, all of them that were in "The Desperate Hours" and made it the hit that it was, did not occur to the Hills.

MR. JUSTICE BLACK: That was a blending of fiction with fact.

MR. NIXON: It was stating fiction was [italics added] fact. It was more than that; it was fictionalizing the Hills. It was using the Hills as commercial props for the purpose of selling more magazines. It was creating a story, rather than reporting a story. And that is the heart of the tort under the New York law. If it had stated—and Mr. Chief Justice Warren very precisely hit this point in his question, if it had stated that this was reminiscent of this item, and then had described the Hill incident as it occurred, then *Life* magazine would not have been liable. But I should also point out, *Life* magazine would not have had a story.

MR. JUSTICE BLACK: Why wouldn't it?

MR. NIXON: Why, it wouldn't have had the story because it wouldn't have been newsworthy.

MR. JUSTICE BLACK: They could certainly have referred to other things in this play?

MR. NIXON: Let us go, then, to why? Why *Life* magazine—when I refer to "*Life* magazine," I am referring, of course, to an institution, twenty-four senior editors, forty-one other managing editors, and two hundred and eight—

MR. JUSTICE BLACK: You don't think they are all liable?

MR. NIXON: But what I am suggesting is, I am referring to any one of the individuals who may have worked on the article; but in this particular

instance, *Life* magazine, as far as checking on this item, did not do so. And they did not do so because *Life* magazine knew what the truth was. The reason—

MR. JUSTICE BLACK: Maybe they didn't do so because any reasonable person would have thought; as I read this record—

MR. NIXON: Yes, sir.

MR. JUSTICE BLACK: From what this man said, the author, that he did found it on the Hill incident. Any reasonable man would have reached that conclusion, particularly when they took him down to the house and made the pictures.

MR. NIXON: And reasonable men can disagree. I would say that any reasonable man reading the Hayes article, "Fiction out of Fact," which Prédieux did, and which stated specifically that "The Desperate Hours" was different from any hostage incident, then that certainly put him on notice that "The Desperate Hours" was not a reenactment. And certainly it would indicate that the editors of *Life* should check to see whether or not editorially they should strike out the words "somewhat fictionalized," or they should strike out the words "this is the Hills' former home"; whether or not they should change the article to be "The Story of the Hills" rather than

the story of the play. In other words, the head being "True Crime" rather than "The Desperate Hours."

Understand, this is editorial changing and altering the facts substantially for the purpose of making the article, and I quote from *Life's* own editorial staff, "more newsy."

It was [described by *Life*] as a gimmick, an editorial gimmick. And the question is: Are private persons, involuntarily drawn into the vortex of a public issue, as counsel for the appellant has indicated—are private persons by this Court to be allowed, in effect, to be used as gimmicks for commercial purposes in a falsified situation in which, I would suggest here, an editorial organization, the largest in the world, with more resources to question the facts than any other, used them in a fictionalized situation?

MR. JUSTICE BLACK: The commercial purpose you refer to is selling magazines? ... Selling magazines for profit?

MR. NIXON: Magazines are sold for profit.

MR. JUSTICE BLACK: Is there anything wrong with that?

MR. NIXON: Not at all.

Justice Black finally desisted, but he was obviously beyond persuasion. As the questions and comments by the Court proceeded, it seemed clear that

only the Chief Justice and Justice Fortas were holding fast to their sympathies for the Hills' claim.

THE decision of the Supreme Court came down on January 9, 1967, reversing the New York State Court of Appeals and remanding the case for further proceedings in New York in accordance with the Court's opinion. The vote was 5-4, with five Justices writing separate opinions.

Justice Brennan wrote the opinion for the majority, holding that the trial court's charge did not instruct the jury with constitutional clarity under the now operative rule of New York Times Co. v. Sullivan, which, like Supreme Court decisions in civil matters generally, applied to all cases not yet finally decided and which required a finding that the publication was made with legal malice—that is, with knowledge of falsity or with reckless indifference to truth or falsity. Justices Black and Douglas, in a concurring opinion, repeated their “absolute” First Amendment view that knowing or reckless falsity on the part of the press was constitutionally protected. Justices White and Stewart formed the rest of the majority. Justice Harlan dissented, asserting his belief that a lesser standard than legal malice—namely, negligence—was an adequate constitutional basis for state protection of private individuals from invasions of privacy and from libel.

The principal dissent was written by Justice Fortas, joined by the Chief Justice and Justice Clark. The dissent argued that the trial court's charge, while not a "textbook model," nevertheless satisfied the standard of New York Times Co. v. Sullivan.

When I learned of the decision, through a telephone call from the Clerk of the Court, I called Nixon, at his apartment. He listened, asked one or two questions about the authorship of the opinions, and then said, "I always knew I wouldn't be permitted to win a big appeal against the press. Now, Len, get this absolutely clear: I never want to hear about the Hill case again." Without a pause, he turned to some business involving the 1968 campaign.

Ever since hearing in June of 1966 that we would have to reargue the Hill case, Nixon had suspected that for some reason a major change had occurred in the Court's basic predisposi-

tion. I shared Nixon's view, and after the decision I was convinced that something inexplicable had indeed happened between the original argument and the reargument. Over time, though, I gradually overcame my puzzlement and disappointment, and accepted the result as yet another proof that the distant and magisterial action of the Supreme Court may not always satisfy the losing counsel as working fairly in a particular case. I did not totally discount the possibility that Nixon had been correct in fearing that this was an ideological battle his opponents simply would not let him win.

And that was that for the Hill case for twenty years. During those years, I had the lukewarm comfort of seeing libel law turn around in Gertz v. Robert Welch, Inc. (1974), in which the Supreme Court—in an opinion by a Nixon appointee, Justice Lewis Powell—held that the rule in New York Times Co. v. Sullivan was applicable to public officials and public figures but not to private individuals. Ironically, the ultimate effect of Hill had been to sensitize the legal community to the arguments that private, as opposed to public, persons could make in such cases. The distinction had grown more sharply focussed in law-review articles and case commentary in the years between Hill and Gertz.

In Gertz, Justice Powell put it clearly: "States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual." He was equally clear about the rationale: "The communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual.... He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery." Under Gertz, the Hill family would have won in the Supreme Court.

Then, in 1985, came Professor Schwartz's "The Unpublished Opin-

ions of the Warren Court," with its behind-the-scenes internal memoranda and draft opinions of the Supreme Court after the first argument of the Hill case. And when the Anthony Lewis review of the book was published in the *Times* Nixon broke his vow, asking me to read the Schwartz book and see what had happened in "that case."

AT the first private conference of the Supreme Court on April 29, 1966, two days after the original oral argument, the vote was 6-3 to affirm the judgment for the Hills. All the Justices but Black, Douglas, and White agreed with Chief Justice Warren's position that there was no First Amendment problem, because the *Life* article was a "fictionalization of these people's experience and false." The Chief Justice assigned the drafting of the Court's opinion in the Hill case to Justice Fortas, and Fortas wrote a sixteen-page document that made its points in language that verged on exhortation—imprudently so, it turned out.

Few in Washington who knew Abe Fortas on the day he was appointed to the bench would have marked him as an enemy of the press. He came from a lower-middle-class Jewish family in Memphis, Tennessee, a brilliant boy and talented violinist with a huge capacity for high-quality work. His performance gained him a scholarship to Yale Law School, where he became editor-in-chief of the Yale Law Journal. His career included a stint as a Yale law professor and years as one of Roosevelt's New Dealers, at the Agricultural Adjustment Administration and the Securities and Exchange Commission. After the Second World War, he set up law practice with the famed Thurman Arnold. At Arnold & Fortas, later to become Arnold, Fortas & Porter, Abe Fortas flourished financially and politically. He was prominent in the anti-McCarthy forces in Washington in the early nineteen-fifties and argued a number of civil-rights cases pro bono. The most famous was Gideon v. Wainwright (1963), in which the Supreme Court constitutionally guaranteed the right to counsel for indigent defendants in state criminal cases of a serious nature.

Fortas also became the quintessential Washington insider, adviser, and confident. His most important client in this respect was Senate Majority Leader

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Lyndon Johnson. In 1965, Johnson appointed Fortas to the Supreme Court—over Fortas's very real objections, and at a press conference called without Fortas's knowledge or consent. Thus was Fortas launched on a judicial career.

Fortas's attitude toward the press had grown hostile over the years, partly because of his bruising encounters with it on behalf of his friend Lyndon Johnson. Fortas was also truly stirred by the injustice he saw being done to the Hills. To him, Nixon's presence in the Hill case was incidental; whatever political baggage Nixon was carrying, he also happened to be bearing the right message. And Fortas, being a pragmatist, no doubt admired Nixon's skilled performance under pressure.

In his draft opinion for the Court in the Hill case, Justice Fortas said, "The facts of this case are unavoidably distressing. Needless, heedless, wanton and deliberate injury of the sort inflicted by Life's picture story is not an essential instrument of responsible journalism. . . . The prerogatives of the press—essential to our liberty—do not preclude reasonable care and avoidance of casual infliction of injury. . . . They do not confer a license for pointless assault." Next, he condemned the Life article as "a fictionalized version of the Hill incident, deliberately or heedlessly distorted beyond semblance of reality." Finally, he wrote a passionate defense of privacy, a defense which, according to Professor Schwartz, was "as broad a statement of that right as any ever made by a member of the highest court."

Even as a newcomer to the Court, joining it in 1965, Abe Fortas was a strong, confident figure. His first year was a great personal success. According to Murphy's biography of Fortas, it got "glowing" reviews: the *Times* law reporter Fred Graham called the freshman Justice "a promising member of 'the club'" and a man who was fast becoming "a power on the Supreme Court"; *Newsweek* called him "rookie of the year"; and *U. S. News & World Report* predicted that he could be "counted among those who will set the tone and style of the Court in the future."

One member of the Court, Hugo Black, violently disagreed. Black, who had worn the liberal mantle on the Court since his appointment by Roosevelt,

in 1937, disliked everything about Fortas, and saw him, as Murphy explains, as a "pretender to the throne of leadership" on the Court. Black therefore welcomed the broad scope and the intensity of the Fortas draft opinion in Hill. These weaknesses presented an opportunity to cut Fortas down to size; but for this task Black needed time. During the circulation of draft opinions, Fortas, because of comments by his colleagues, found it necessary to make changes tempering the language of his first draft opinion for the Court and seeking to answer, in particular, Justice White's challenge to the constitutionality of the New York statute. By adroit maneuvering, Justice Black took advantage of these changes. In what Murphy calls a "petulant" note to Justice Fortas, he insisted that because of Fortas's alterations he needed extra time—more than the current term allowed—to rewrite the response he was preparing. Black's hostility, together with White's more specific doubts, persuaded Fortas, as the author of the majority opinion, to agree to reargument, and it was scheduled for the fall term. Meanwhile, Black continued his campaign against Justice Fortas and his draft opinion. To his Court colleagues he said that Fortas's was "the worst First Amendment opinion he had seen in a dozen years." He added, according to Murphy, that "it would take him all summer to write his dissent," which "would be the greatest dissent of his life."

Justice Black's product, an internal memorandum sixteen pages long, was distributed to the Court the day before reargument; it was a blockbuster denunciation of Justice Fortas and his position. It was, as promised, one of the most forceful statements ever made by Black of his judicial philosophy. He attacked the general idea of the "weighing" approach, which when applied to First Amendment issues dictates that in each case the worth to society of freedom of expression must be weighed against the worth of the

individual rights and values threatened by a particular use of that freedom. Then he attacked the weighing approach as applied to the right of privacy in particular, and castigated Justice Fortas's opinion in terms like these: "After mature reflection I am unable to recall any prior case in this Court that offers a greater threat to freedom of speech and press than this one does, either in the tone and temper of the Court's opinion or in its resulting holding and judgment."

An example of Justice Black's ferocity of argument was a contention that Fortas was urging a "general, unconditional, unequivocal 'right to privacy' or 'to be let alone,'" under which, Black argued, "burglars, rapists, robbers, murderers and other law violators would be completely immune from all governmental investigations, arrests, trials and punishments."

Timed for the eve of reargument, Black's intense lobbying and his pre-argument memorandum had the intended effect. The Court's questioning moved in a direction charted by him and by Justice White. In the first post-argument vote, on October 21st, the Court switched from 6-3 for affirmation to 7-2 for reversal, with only the Chief Justice still strongly supporting Fortas. Before the case was finally decided, Justices Harlan and Clark returned to the Fortas side, producing a tie vote of 4-4, and that was resolved, finally, by Justice Stewart's vote to reverse. This deciding fifth vote to reverse was obtained by Brennan's addition of a paragraph expressly leaving open the rules to apply in libel actions by private individuals. Stewart had earlier expressed concern for the reputation and feelings of private individuals in a concurring opinion in Rosenblatt v. Baer (1966). He wrote to Brennan the day after he read this addition, saying he was now glad to join in Brennan's opinion.

The irony of this struggle is that after all the speculation about how the Court would respond to Richard Nixon, the personal animus that determined the course of the Hill case was not antagonism toward Nixon by any member of the Court. The two Justices who had always detested Nixon's politics—Warren and Fortas—were unshakable defenders of his position in the Hill case. The central clash in Hill was actually between Hugo Black and Abe Fortas.

Schwartz observes that Justice Black's intense antipathy to Fortas was rather mysterious. It was apparent almost from the day Fortas joined the Court and intensified sharply from that point forward. In Fortas, Black surely saw a philosophical heir to his ancient adversary Felix Frankfurter, the proponent of the doctrine of balancing competing constitutional interests—a philosophy that was deeply offensive to the absolutist soul of Hugo Black. What is clear is that in the Hill case Abe Fortas's old-style liberal, pluralist notion of press freedom as a value to be weighed against other values gave way to Black's idea of press rights, which was much larger and more uncompromising in its claims. In time, the Court would come around to Fortas's view.

EARLY one morning in 1970, a year or so after I joined President Nixon's White House staff, my secretary informed me that Abe Fortas was on the line. He asked to see me that day, explaining that his visit related to the arts, for which I had White House staff responsibility. (As a onetime jazz saxophone and clarinet player, I had a historical sympathy for performing artists, and this weakness had prompted me to volunteer for this White House assignment.) He said that it had nothing to do with law or politics.

Fortas had by then resigned from the Court, and the currents of controversy which surrounded that judicial brou-haha had subsided. In 1968, after President Johnson had announced his intention not to run for reëlection and thus made himself a lame duck, he tried to appoint Justice Fortas to the post of Chief Justice. The nomination was blocked, shortly before the 1968 Presidential election, by revelations that while Fortas was on the Court he had received a private honorarium and had given Johnson much political advice. Then, in May, 1969, a *Life* article revealed that Fortas had accepted a substantial fee from financier Louis Wolfson, who was then being investigated by the S.E.C. This article started the chain of events that forced Fortas off the Court altogether. To the end of his days—he died in April, 1982—Fortas maintained to friends and colleagues that the *Life* article had been Time, Inc.'s punishment of him for his role in the Hill case.

At the time Fortas came to see me, I

had never met him and didn't know about this feeling of his, but I did feel a strong personal tie to him because of his powerful support in the Hill matter. His mission, he explained humorously and deftly, was to see if some way could be found to permit musicians to dead-head cellos and other large musical instruments on airplanes that had excess space. (He had remained an accomplished violinist, and he made the point that he could hold his fiddle on his lap and was therefore not self-interested.) Would I help out? "Sure," I said, "but don't hold your breath while the Civil Aeronautics Board decides whether to waive its rules." As we chatted, I mentioned the Hill case. This produced a surprising outburst from Fortas. In all his time on the Court, he told me, no case had affected him so much, or so deeply offended his sense of fairness and equity. "It was a bad result, and terribly unfair to the Hill family," he said. "I offer you my apologies for not being more effective."

In my remaining years in Washington, Fortas and I became something between acquaintances and friends. He could be a shrewd and merry adviser (or a cold and difficult man, if he chose), and from time to time I called upon him for private advice. I could see why President Johnson couldn't break his habit of turning to Fortas as his counsellor of first or last resort, even when Fortas ascended to the supposedly cloistered life of a Supreme Court Justice.

His last piece of substantive advice to me was pure Fortas. The day before President Ford's first press conference, on August 28, 1974, I lunched with John Osborne, the *New Republic's* wise old White House watcher, and called the CBS News stalwart Eric Sevareid, another Washington friend. I was then assistant to President Ford, one of the handful of Nixon staffers who were allowed to remain in the Ford White House and thus escape much of the Watergate taint, and I asked both Osborne and Sevareid whether Ford should pardon Richard Nixon. Both felt that a pardon should be granted. In the late afternoon, I called on Abe Fortas at his Georgetown home and put the question to him. Was it the right thing to do? Was it feasible? Should I weigh in personally and try to make the case to President Ford?

By all means, he said. This was the

time for President Ford to act, quickly and decisively. The convulsion of a trial of Richard Nixon was the last thing that the country—shaken deeply, as it was, by Watergate and a Presidential resignation—needed at this time. This is "Ecclesiastes time," he said—a time for repair and reconciliation, and not "the horror" of a long state trial of the former President.

Fortas's judgment made up my mind. At the suggestion of General Alexander Haig, the White House Chief of Staff, I wrote a memorandum that night to Haig and to Philip Buchen, the President's counsel, and handed a copy to each of them in the White House at eight the next morning. At ten-thirty, after meeting with President Ford and taking counsel from others—their identities are still unknown to me—Haig called, and said, "It's all set." The announcement of the pardon came on September 8th.

In later months, when I read Fortas's various public condemnations of Richard Nixon, I had occasion to reflect on the uses of Fortas's complex political style, which even then was becoming an anachronism. In that respect, Fortas and Nixon were very much alike. Both were public men with extraordinary gifts, and both were bundles of contradictions. Both would praise each other in private while attacking each other in public—or vice versa. During the 1968 fight over Fortas's nomination for Chief Justice, Nixon, as Murphy tells it, encouraged other Republicans to attack, but would not attack Fortas himself or make Fortas an explicit issue in the 1968 Presidential campaign. Fortas, meanwhile, was free with his praise of Nixon's skills as an advocate when speaking to lawyers, who viewed such talk as a mark of professionalism and sophistication. Not so in public, where Fortas would follow convention and bury Nixon rather than praise him. For both, it was a matter of audience. And this method of conducting political business contributed to each man's undoing.

In December of 1974, when I was leaving the Ford Administration to return to New York and practice law, Fortas took me to lunch. He was at his charming best. As we finished up, he said, "You know, I have a tiny law firm but an interesting practice over in Georgetown, lots of freedom to do as

much or as little as I want. Would you
like to become my partner?" I told him
I was honored, pleased, and tempted,
but I had had enough of Washington
and was determined to go back home.
"You will return," he said, grinning
elfishly. "Washington is just too much
fun." (I did return, in 1980.)

THE Hill case left me with a permanent collection of what-ifs.

Would the great expansion of press
protection in the Sullivan case have
occurred if it hadn't been for the chill-
ing nature of the restraint imposed by
the Southern court and jury that de-
cided the case against that symbol of
northern liberalism, the *Times*, as the
civil-rights revolution moved thou-
sands of blacks and their supporters
into the streets and the courts?

Might the Hill decision have been
affirmed if *Time's* appeal to the Su-
preme Court had not followed so
quickly on the heels of Sullivan and the
surrounding pro-press enthusiasm of
the public and the courts?

Would the Hill case have engen-
dered an earlier and more constructive
exploration of appropriate distinctions
between the protection of private and
public figures from press comment, as
Justice Harlan suggested, if the case
had not been distorted by a bitter per-
sonal vendetta by one Justice toward
another?

What might have happened if
Watergate had not apotheosized the
investigative journalist and made the
idea of restraint, self-imposed or court-
imposed, anathema to dominant jour-
nalistic opinion?

By now, there is no denying that the
relationship between the press and
other American institutions is seriously
awry, with far too much contempt and
self-justification emanating from all
sides. Post-Watergate norms of jour-
nalistic behavior have generated wide-
spread popular resentment, and court
decisions and jury verdicts have been
reflecting that new sentiment.

Richard M. Clurman, a former edi-
torial executive for Time, Inc., and
one of the nation's most balanced ob-
servers of press and privacy issues,
comments on this issue in his important
new book "Beyond Malice: The Me-
dia's Years of Reckoning":

Public support can be counted on only if
journalists themselves and their bosses rec-
ognize that as much as their role has
changed, so must many of their practices.

They cannot proclaim policies and values
in the public interest that are at odds with
their own behavior and performance.
They need to understand that beyond mal-
ice in its constitutional meaning are pat-
terns of media behavior that are unaccept-
able. They cannot produce an information
product as if it were any other profit-
oriented commodity. If others are to be
prevented from restraining them, they
must temper their new and growing mod-
ern power with more awareness, self-re-
straint and initiative in the interests of the
public.

Chief Justice Warren, Justice For-
tas, and Justice Harlan, in their re-
sponse to the Hill facts, intuitively an-
ticipated just such developments as
have occurred. They saw the case as
one of nontechnical justice—two ordi-
nary American parents touched by
near-tragedy and trying to shield
themselves and their five young chil-
dren from the cheapening effects of
unwanted and distorted publicity.
These Justices did not think that pro-
tecting the Hills entailed any new cate-
gorical press restraint or that it re-
quired any great jurisdictional analysis.
Justice Harlan, in particular, empha-
sized not only the constitutional dif-
ference between public and private
persons but the "severe risk of irreme-
diable harm" that such publicity could
bring upon "individuals involuntarily
exposed to it and powerless to protect
themselves against it." And, indeed, at
the trial there had been testimony that
the *Life* article had caused Mrs. Hill
lasting emotional injury. Two eminent
psychiatrists had explained the causal
dynamics of the trauma inflicted on
her. Both said she had come through
the original hostage incident well but
had fallen apart when the *Life* article
brought back her memories trans-
formed into her worst nightmares and
presented them to the world as reality.
Both said she was and would for an
indefinite time remain a psychological
tinderbox. In August, 1971, Mrs. Hill
took her life.

James Hill has given me permission
to discuss these matters in this article. I
am not asserting that the false and
unwanted publicity of the *Life* article
caused this tragedy. Suicide is among
the darkest of human acts, the result of
multiple influences. It is not unfair,
however, to say that troubled persons,
clinging to their psychological integ-
rity in an invasive world, suffer with
special acuteness when they are forced
into the spotlight of negative commu-
nity attention. In many cases, their

ordeal brings more than just transitory
embarrassment or a general sense of
resentment at a trespass. This sort of
reasoning rubbed a fundamentalist in-
terpreter of the Constitution like Hugo
Black the wrong way—just as Abe
Fortas, the much-admired and com-
plex hybrid of lawyer and political
adviser, provoked in Justice Black an
unending resentment.

The combination of Sullivan and
Hill with the superheated environment
of the late nineteen-sixties and early
seventies had large political conse-
quences. There were journalists who
came to believe that the First Amend-
ment's writ ran without limit; many
citizens thought otherwise. The re-
sentment engendered by what was
viewed as the arrogance of the press
may have played a role in forming,
through these years, the country's in-
creasingly conservative disposition. It
may be that, just as Hill had the ironic
effect of bringing about more attention
to private persons' rights against the
press, the generation of journalists
formed by the events of the late nine-
teen-sixties and early seventies had a
part, albeit unwittingly, in the election
of Richard Nixon, Ronald Reagan,
and George Bush. And, partisan con-
siderations aside, the press now finds
itself in a hostile environment that
threatens the liberty Hugo Black
thought he was securing. It is time to
start finding our way back.

—LEONARD GARMENT

JUN 26 1989

ARTICLE FOR LA TIMES SYNDICATE (release: 6/25/89)

by Richard Nixon

China's brutal repression of its pro-democracy movement has shocked the Western world. The Tiananmen Square crackdown was cruel and incredibly stupid. Last week's executions of activists and workers deepened our revulsion, leading even China's friends to question the rationality of a regime that would go forward with such brutality in spite of the protests of Western governments whose future good will China needs to continue its economic reforms.

For now China seems to have reverted to its old fanatical communist hard line. In the light of this development, it is difficult to contemplate how continued normal relations with China would be in our interests, at least in the short term. But before adopting policies of reprisal that would again virtually isolate the Chinese regime from the West, the Bush Administration must consider the long-term stakes, both for the United States and the people of China.

Lashing back with punitive policies would be politically popular and emotionally satisfying for the great majority of the American people. Such policies would make us feel better. But they would have no effect whatsoever on China's hardline leadership. Instead they could dash the Chinese people's chances for further economic progress and eventual political reform. This would not be in the interests of the Chinese people. It would not be in the interests of the hundreds of thousands of Chinese in China and all over the world who have demonstrated for political reform. And it would not be in the interests of the United States. If in our anger we drive China back into the shadows of the Soviet Union and the oppressive economic system Deng Xiaoping has tried to reform, those who have died for freedom in China will truly have died in vain.

To see where we should go in our policy toward China, we should first look back and see where we have been.

When I went to China in 1972, I was criticized by the far right and praised by the far left, both for the wrong reasons. The far right believed I had betrayed my anti-communist principles. The far left rejoiced because they thought I had outgrown them. In fact, my decision had nothing to do with my attitude toward communism.

The first reason I went to China was the Soviet threat. Both the Soviet Union and China had communist governments. Both were supporting our enemies in North Vietnam. But

CHINA / 2

there was a crucial difference. The Soviet Union, as a
nuclear superpower, was a potential threat to the United
States. China was not. It had broken away from the Soviets
and was in the position to play a more constructive
international role. It made both moral and strategic sense
for the United States to have relations with any nation that
did not threaten our fundamental interests.

Today, a strong, stable China is as vital as ever to
the security interests of the United States and to peace in
the Pacific. A weak, fractured China would leave the Soviet
Union as the dominant military power in Asia and Japan as
the dominant economic power. Whatever happens in the
future, it is imperative that Sino-American relations remain
strong so the United States can help maintain the balance
among China, Japan, and the Soviet Union.

President Bush will be pressured to take harsher action
by a strange coalition of China-bashers. Those on the far
right who oppose any relations with China will demand
economic and diplomatic sanctions. So will the human rights
lobby, which calls for punishing every regime that does not
live up to our standards regardless of our interests or
those of the millions living under those regimes whom
sanctions would hurt the most. The Bush Administration
should continue to ignore these extremist voices and stay
the prudent course it has already set.

Many who criticized the President's measured response
to the Beijing crackdown were strangely silent about the
deafening silence from Mikhail Gorbachev. He may have
refrained from condemning the Chinese leaders because he
fears that he too will continue to be faced with pro-
democracy and anti-Moscow regional movements, such as the
one in Georgia this spring where scores were massacred by
troops using poison gas. In stark contrast to the massive
coverage of the tragedy in Tiananmen Square, American
television cameras and reporters were not present for that
massacre, which is one reason Gorbachev's popularity rating
in the West remains high while Deng's is plunging. But the
Soviet leader cannot push his luck by condemning Deng for
taking steps that he has taken already and may have to take
again.

Gorbachev also knows a freeze between Washington and
Beijing will hasten the thaw between Moscow and Beijing.
Nearly forgotten in the aftermath of Tiananmen Square is an
equally important event that occurred in Beijing just days
before: the normalization of relations between Moscow and
Beijing. Hardline Communist leaders in Beijing, some of
whom were suspicious of the Americans to begin with, are
probably saying today that if the United States adopts
further sanctions, in effect closing the door to China that

CHINA / 3

we opened in 1972, the Kremlin gates now stand open again.

China's leaders want to continue to have economic progress, and they know the best way to encourage them is through continued access to Western technology and investment. They neither like nor trust the Russians, and the Russians have little to offer them compared to the West. But political factors can override economic realities. The Chinese got along without the West for a quarter-century, and they could do so again. If we force them back into their angry isolation from the West, we risk prompting a potentially disastrous entente between the two great communist powers that would be in nobody's interests but Gorbachev's.

The second reason I went to China had nothing to do with the Soviet Union. Even if there had been no Soviet threat, it was essential that we have relations with a government that was a member of the nuclear club. And today, how can we launch a worldwide attack on the environmental crisis without the cooperation of a government ruling over one-fourth of all people on earth?

Despite the fundamental national self-interest behind our *rapprochement* with China, many Americans have gone overboard and turned it into a romance. China has a limitless capacity to fascinate. But it is not Disneyland. It is, as it has been since 1949, a communist dictatorship held together by brute force. No one who knows China should be surprised when its leaders turn to violence to pursue their political goals. They have done far worse before Tiananmen Square. One overly excited journalist wrote last week that the crackdown transformed "the Woodstock-like encampment of young students...into the bloodiest killing ground in Communist China's history." He apparently was not aware that many times more people died -- hundreds of thousands, and some Chinese claim millions -- in Mao's Cultural Revolution. Twenty million died in the wake of the brutal forced collectivization known as the Great Leap Forward. Attacks on unarmed civilians are never justified. But in condemning them, we should not pretend that we did not know that China's leaders were capable of using violence for political purposes.

Since Tiananmen Square, some pundits have said it is ironic that the same Deng Xiaopeng who beguiled millions, including an army of journalists, during his state visit to the United States in 1979 is the same man who ordered the crackdown. What is more ironic is that many of the same pundits were willing to believe that the dedicated communist who had fought and bled his way through the Long March and the bloody Chinese civil war was just a cuddly teddy bear with a cute smile. Those who insist on romanticizing relations between nations will always be disappointed when the realities of national interest and survival inevitably

CHINA / 4

intrude.

But while we should be realistic about China, its leaders, and the strategic reasons our relationship must continue, we should not lose sight of the benefits the Chinese people have derived from that relationship, particularly the economic progress that has come along with it. If we can restore a close relationship with China, the greatest beneficiaries will be the people of China themselves.

Some of the Beijing demonstrators carried banners reading, "In the Soviet Union they have Gorbachev -- who do we have?" They have leaders who have made life better for hundreds of millions of Chinese. In the ten years since Deng instituted his economic reforms and an intensive campaign to attract Western investment, the income of the average Chinese has doubled. In the five years since Gorbachev came to power in the Soviet Union, despite the rave reviews he has received for his political reforms, the income of the average Russian has stagnated or even gone down.

In 1972 there were no Chinese students from the PRC studying in the United States. Since that time, 62,500 have done so. In that same period only a few hundred Russian students have studied here. Gorbachev's *glasnost*, or "openness," notwithstanding, television and press coverage of the events in Tiananmen Square has been far greater than that of comparable events in the Soviet Union.

On June 2nd, two days before the crackdown, a Chinese student who is studying in New York City mailed a letter to my office. He wrote, "Please tell President Nixon that we young people from China really appreciate what he has done to open up China to the outside world. Just look at the Statue of Liberty that the Chinese students carried when demonstrating on the streets for democracy. It would be impossible without his courageous visit to China."

As I watched the aftermath of that night's events, I took little comfort from his message. China's new fascination with the West and the dramatic economic reforms Deng adopted were both welcome developments. But they also entailed great dangers. By giving their people a better life economically and permitting their brightest young people to study in the United States and other Western countries, China's leaders ran the risk that the people's rising expectations would eventually lead to demands for political reforms that would challenge the authority of the Communist Party. The further tragedy is that the suppression of the pro-democracy challenge has dealt a massive setback to his economic policies.

A fundamental goal of our China policy should be to

CHINA / 5

influence its leaders to get the economic reforms back on track and also to go forward with peaceful political reforms. Our influence will be squandered if we make pious pronouncements in public about what the Chinese leaders should or should not do. It would be far better to urge them through private channels to show restraint in dealing with pro-democracy activists and eventually to find a way to better accommodate dissent within the system.

In 1972 I met with a group of congressmen and Senators who opposed our new relationship with the Soviet Union because of its policies against Jewish immigration. I said, "The walls of the Kremlin are very thick. It is difficult to be heard even when you are inside the walls. It is impossible to be heard when you are outside." When we opened lines of communication to the Kremlin and made our views known privately, the number of Jews allowed to leave the Soviet Union increased from 600 the year before I came to office in 1969 to 37,000 in 1973.

We face a similar dilemma in China today. The Great Wall of China is very thick. We may not always be heard when we are inside. If we withdraw back outside the Wall again, we will not be heard at all, and the Chinese people's dreams of more democracy and a better life will almost certainly die.

END

SIMON & SCHUSTER

TRADE DIVISION

Alice E. Mayhew
Vice President
Associate Publisher
Executive Editor

July 12, 1989

Henry Kissinger
Kissinger Associates
350 Park Avenue, 26th floor
New York, NY 10022

Dear Mr. Kissinger,

I'm pleased to be sending you an advance galley of the
second volume of Stephen Ambrose's three-volume biography
of Richard Nixon.

Nixon: The Triumph of a Politician picks up where Ambrose's highly acclaimed first volume left off. Beginning with Nixon's "last press conference" on November 7, 1962, Ambrose chronicles Nixon's remarkable comeback, his innovative first term and the triumphant 1972 presidential campaign in which he sowed the seeds of his own ruin.

We're very excited to be publishing *Nixon: The Triumph of a Politician*. The author and I would be delighted if you wish to comment.

AEM/tj

Simon & Schuster Consumer Group

Simon & Schuster Building, 1230 Avenue of the Americas, New York, NY 10020 (212) 698-7360

July 7, 1989

AUG - 1 1989

WGBH, the public television station in Boston, has begun to invite RN's friends to be interviewed for a three-part series about him that will be aired in the fall of 1990. A producer named David Espar, based in California, is doing the first episode, which is about RN's early life. A dozen or so have called us to ask how they should respond, so I thought I had better pass along this information for your consideration.

To quote the publisher of the liberal *New Republic*, public TV programming tends to be left-wing. There is no question whatsoever that it has always been pervasively anti-Nixon. Mr. Espar and his colleagues are telling everyone that this time they plan to be fair. This could be true. It is also true that this is precisely what Woodward and Bernstein told sources they were romancing for *The Final Days* and what Barbara Howar told sources for her "unauthorized biography," a hatchet job so biased and low-rent that even critics at the New York Times and New York magazine panned it.

So it will probably come as no surprise to you that President Nixon, members of his family, his staff, and his friends are refusing to cooperate with WGBH in any way.

RICHARD NIXON

OCT-03-1989

September 28, 1989

I could hardly believe my eyes when I saw
this statement in the October 2nd issue of
*Newsweek* allegedly made by a senior foreign
service officer who works with the Secretary of
State.

"Baker's no geopolitical theoretician. But he's very carefully attuned to domestic politics. Henry Kissinger was a great geopolitical visionary, but in the end his foreign policy was a **total disaster** because it went beyond what the domestic consensus would bear."

He may have thought he was helping Baker by knocking Kissinger. Whatever the reason, he should be fired for gross inaccuracy and incompetence.

The Honorable
Lawrence Eagleburger

bcc: Hon. Henry Kissinger

Page Two

the working script reviewed by *independent* experts on the period in question.
Weiswasser would only say, "There has been a significant effort to
corroborate through a variety of ways and sources." How, and with whom?
This significant question Weiswasser and Murphy chose not to answer.

Given the fact that AT&T's corporate funds are making airing of this
film possible, you surely have the right to ask of Tom
Murphy whether in fact "Final Days" is a sound documentary drama,
based upon verified historical fact, or merely a rehash of the flawed book.
Before joining AIM I had two careers -- as a newspaperman, lastly as
Washington bureau chief of the Philadelphia Inquirer; and as author of
non-fiction books. On unaccountable occasions I had editors (of both
newspapers and publishing houses) ask me, "OK, Goulden, where did you get
this piece of information?" I willingly gave answers; I could appreciate
their concern with the accuracy and fairness of what was issued under their
imprimaturs. AT&T has the same obligation.

To slough off questions, as your spokesman did, with the assertion that
viewers "will judge for themselves" is an evasion of corporate
responsibility. Those of us who have respected AT&T's integrity for decades
deserve a better answer. We will be looking forward to receiving one.

Sincerely yours,

JOSEPH C. GOULDEN
Director of Media Analysis

11/6/89

A23

ESSAY

William Safire

# Nixon in China

WASHINGTON
He did not tastelessly sell his celebrity for two million bucks; he did not charge the American taxpayer for bodyguards; he did not toady to his foreign hosts.

In sharp contrast to a far more be-
loved former President, Richard
Nixon used his foreign affairs acu-
men and his personal relationship
with China's leaders to carry out a
vital mission for his country.

He struck exactly the right note.
Only Nixon (two words that so often
go together) had the credentials of an
old friend that enabled him to express
our outrage at the Tiananmen massa-
cre and our concern at the wrong turn
off the democratic road, without
causing his hosts to freeze.

By traveling as a private citizen, he
could be the most special envoy:
unofficial, above politics, even above
diplomacy. In that role, he could talk
turkey to the Chinese gerontocracy —
showing in pragmatic terms the dire
consequences of Beijing's leap back-
ward — and bring back a realistic as-
sessment of possible openings to
President Bush, the man he sent to
China as U.S. Ambassador a few
political lifetimes ago.

Even the dwindling legion of Nixon-
haters who consider him good for
nothing admit he's good at openings
to China. The New York Times noted
with approval Mr. Nixon's words
warning China against sinking into "a
backwater of oppression and stagna-
tion," credited him for "putting his
reputation to good use" and conclud-
ed: "The tough-minded Mr. Nixon
has told them the hard truth."

Was this the same guy we saw last
week in a TV docudrama, bawling
like a baby and beating his fists on the
carpet?

No. The sobbing character of "The
Final Daze" was a caricature. Its cen-
tral scene's central moment, of Nixon
cracking after a prayer with Henry
Kissinger into an hysterical, rug-diving
crybaby, was fiction — all drama, no
docu — unsourced, and roundly denied
by the only two people present.

In a perverse way, I was glad to see
the burst of sensationalist excess; it
cast into doubt some of the distaste-
fully true parts of the half-fiction ac-
count.

Let me testify that this has been
some roller-coaster week for old Nixon
hands. The television version of the
late-hit book reminded us of the bad old
days, with so many of our friends going
to jail or into disgrace. The news of
Nixon in China ("Nixon in China" was
also the title of a respectful, critically
acclaimed opera with music that was
beyond me) gave us a lift.

In between came what we hoped
would be a serious revisionist book by

Stephen Ambrose, a respectable Eisen-
hower biographer. But he produced a
disappointment: a book that draws its
foreign-policy judgments from an aide
to Gerard Smith, an arms controlnik
embittered at having been jilted by
Nixon in Moscow, and accepts as his-
toric gospel unattributed quotes from
the works of Kissinger-despising Sey-
mour Hersh.

Documented details are bad enough. How can we explain to historians and fair-minded reporters that so many of the terrible things Nixon said on tape, or mean-spiritedly jotted down in the margins of news summaries, were moody expostulations not reflecting considered views or intended to be orders?

At an airport campaign rally attended by fewer than a dozen sup-

Ovation at the
next G.O.P.
Convention.

porters, I heard an infuriated Nixon
give an "order" to H. R. Haldeman:
"There will be no more landings at
airports."

What did that mean? Parachute in?
Cancel all TV arrival events? As he
was expected to do, his aide watered
that down to: "There had better be no
more unsuccessful airport rallies."
Yet there stands that weird Nixon
command, to be examined by uncom-
prehending historians: "There will
be no more landings at airports."

Here we are then, thee and me,
nearly a generation after his fall,
reacting to Nixon being misportrayed
on the tube, Nixon in China again
making his valuable contribution to
human rights, Nixon being savaged in
books, Nixon again operating behind
the scenes to further U.S. policy.

Anguished Nixon haters will ask:
"Didn't we bury him at a crossroads;
with a stake through his heart, never
to stalk the earth by daylight?

All those who had been his admirers,
including so many dismayed by his
tapping and taping and Watergate
wrongdoing, will say: He's done it
again. He's come back. After letting
down the side, he is now lifting up the
side.

There will be reputational redemp-
tion. There will be official assignments.
There will be a terrific new memoir.
As with the re-examined Herbert Hoo-
ver, there will be an ovation at a Re-
publican Convention. There will be no
landing at airports.
☐

Personal & Confidential

The Crisis in Sino-American Relations

In six days in Beijing from October 28 to November 2 I had
over twenty hours of one-on-one discussions with eight major
Chinese leaders, including Chairman Deng Xiaoping, Premier Li
Peng, General Secretary Jiang Zemin, President Yang Shangkun, the
sophisticated Foreign Minister Qian Qichen, the very able
Minister of Education Li Tieying, the brilliant Minister of
Propoganda Li Ruihuan, and the extraordinarily competent Mayor of
Shanghai Zhu Rongji. The talks were highly candid, covering the
political and economic situation in China, the current crisis in
U.S.-China relations, and other international issues including
the Chinese assessment of Gorbachev, of the revolutionary
developments in Eastern Europe, and of the current situations in
Cambodia, Afghanistan, and other Third World trouble spots.

On my return, I gave an eighteen-page report to President
Bush containing my assessment of the Chinese leaders and
suggestions as to how the Sino-American relationship might be
improved. I also discussed Sino-American relations at an
informal dinner the President and First Lady hosted at the White
House which was attended by the Vice President, Brent Scowcroft,
John Sununu, William Webster, Under Secretary of State Larry
Eagleburger, and Michel Oksenberg, the NSC's China specialist in
the Carter Administration. Dr. Oksenberg attended all my
meetings with Chinese leaders.

The crisis in Sino-American relations.

Sino-American relations are in the worst condition they have
been in since before I went to China seventeen years ago. One of
the major reasons is that Americans and Chinese see the tragic
events of June 4 from totally different perspectives. The gap
between us on that issue is totally unbridgeable. I pointed out
to Chinese leaders that most Americans, including many friends of
China, believe that the military crackdown was brutally excessive

-- 2 --

and totally unjustified. In response, every Chinese leaders I
talked to insisted that the suppression of the demonstrations was
necessary and justified. They believe the American reaction was
an unacceptable intrusion in their internal affairs. They
believe the American media grossly exaggerated June's events.
They think that the economic sanctions, cessation of high-level
official contacts, and moral condemnation from a nation with
inadequacies of its own is hypocritical and unjustified. They
recall bygone days when their nation was bullied and exploited by
outside powers. As a result, some of the Chinese leaders now
exhibit a distrust of the United States that is reminiscent of
the period before 1972.

Before I went to China this year, my five-year-old
granddaughter, Melanie Eisenhower, asked me on the telephone
whether I could speak Chinese. When I told her that I did not,
she responded, "Then why are you going? They won't understand
you." The tragedy is that even if I had been able to speak
Chinese, they would not have understood me because of our totally
different views on what happened. On several occasions I
referred to the use of excessive force on June 4 as a tragedy.
They refused to accept that; they insisted on calling it an
"incident."

In part, this may be because the Chinese word for tragedy
implies that there must be a villain. As one close Chinese
friend pointed out to me, no proud Chinese leader -- indeed, no
national leader anywhere -- can ever admit that he is a villain.
One top Chinese leader told me that any colleague who humiliated
China in the world community by acting contrite did not deserve
to be in office. Contrition may be an attractive characteristic
in soap opera stars, but not in leaders of great nations such as
China. This does not mean that we excuse what happened in June.
But we should adopt the same approach we used in the Shanghai
Communique, acknowledging both our differences about the
crackdown and our common interest in building for the future in
spite of it.

Can the crisis be resolved?

There is no way we can resolve our differences on the tragic
events of June 4. But it would compound the tragedy if we
allowed them to permanently damage a relationship that has been
so beneficial to the Chinese people, the American people, and the
cause of peace and progress in Asia. So we must keep the events
in perspective. Great as our differences are over what happened
in Tiananmen Square, our differences were infinitely greater when
we established relations with the PRC in 1972 after twenty-three
years of no communication whatever. We disagreed with the
Chinese on Vietnam, on Korea, on Japan, on Taiwan, and on
philosophy. China was still in the final throes of the Cultural
Revolution, during which millions had died in an ideological

-- 3 --

crackdown far more brutal than what has happened this year. But we recognized then that while we had irreconcilable differences, we had one overriding common interest which brought us together -- the need to develop a common policy to deter an aggressive and expansionist Soviet Union which threatened us both. Today, when the conventional wisdom is that the Soviet threat has diminished and when many even proclaim that the cold war is over, do we still have a common interest which overrides our differences? And if not, what is the glue that can keep us together in the years ahead?

## Does it matter?

This brings us to an even more profound question. Why is a restoration of the previous cooperative relationship between our two countries in our interests?

1. Assuming that the cold war is over and that the Soviet Union is not a major threat to either of us -- a conclusion, incidentally, that every Chinese leader I met rejects -- we still have a strong strategic interest in restoring a good relationship with the PRC. President Bush will go head-to-head with Gorbachev in the Mediterranean on December 2nd. There is no question but that Gorbachev is an exciting new kind of leader of the Soviet Union. But we must also recognize that in not implementing the Brezhnev Doctrine in Hungary, Poland, and East Germany, in cutting back marginally on his military budget, and in reducing his support of his clients in the Third World, Gorbachev is simply making a virtue out of necessity. He is using his head. At a time when he is using his head, we should not lose ours. Gorbachev is not a closet democrat, a philanthropist, or a fool. His handshake will be warm, but based on his past record we can assume that he will have a card or two up his sleeve. We should never treat China as a card. But it would not serve our interests if Gorbachev was able to do so. Today, the Chinese are talking to the Russians and we are talking to the Russians. But we don't talk to each other. The suspension of high-level contacts has served its purpose in expressing our outrage at the crackdown. Now we must once again adopt a policy toward China that serves our geopolitical interests, and such a policy will require high-level contacts.

2. China is a nuclear power. Without Chinese cooperation, we cannot have an effective policy of non-proliferation of nuclear weapons and will have no leverage at all in trying to prevent the sale of missiles and other destructive weapons to countries in trouble spots like the Mideast.

3. With Japan already an economic superpower with the capability of becoming a military and political superpower, a strong, stable China with close ties to the United States is essential to balance the power of Japan and the Soviet Union in East Asia.

-- 4 --

4) China has an indispensable role to play in the maintenance of peace and stability in the Asia-Pacific region. Peace cannot be maintained in Korea, the Taiwan issue cannot be resolved peacefully, the people of Hong Kong cannot enjoy a future as an autonomous, capitalist, and democratic entity, and peace cannot come at last to Indochina unless both the PRC and the United States are constructively and responsibly engaged in regional affairs.

5) China inevitably will become a major economic power, and its over one billion people will provide a huge market for the advanced industrial countries. Do we want to rule ourselves out and leave that potential market to the Japanese and the Europeans? Is the door which we opened with such high hopes seventeen years ago to be closed?

6) Looking to the future, China, not because of communism but in spite of it, will be an economic and military superpower. Do we want to run the risk of being an adversary rather than an ally of China in the next century?

7) Global warming is the currently fashionable topic ub think tanks and on editorial pages. How can we deal with this and other environmental issues without the cooperation of one-fifth of all the people on earth?

These are just a few of the reasons that repairing the damage to the Sino-American relationship is in our interest as well as in theirs.

## Does it matter to the Chinese?

China has as big a stake as we have in restoring a cooperative Sino-American relationship.

Despite the criticism he received for his role in the tragedy of June 4, Deng Xiaoping, who twice has been named as Time Magazine's "Man of the Year," was one of China's greatest leaders. Gorbachev's political reforms have received the headlines, but Deng's economic reforms have produced the goods. In the ten years between 1979 and 1989, the per capita income of China's one million people doubled. In the five years that Gorbachev has been in power in the Soviet Union, the per capita income of the people of the Soviet Union has gone down. This does not mean that we approve of economic reform without political reform. But political reform without economic reform, no matter how popular it is in the short run, will fail in the long run. Economic reform without political reform will succeed in the short run, but will fail in the long run unless political reforms follow. If the Deng economic reforms, combined with his opening to the West, survive him, then the pressures for political reform will inevitably bring progress on that front as

-- 5 --

well.

All the leaders I met told me that Deng's economic reforms would continue and were irreversible. But now that he has announced his retirement, there will without question be a major battle for power between the reformers and the reactionaries who want to return China to the policies that existed before 1972. In a toast at a banquet hosted by the Premier on October 30th, I said that the choice China must make is a clear one. Is China to turn away from greatness and consign itself to the backwater of oppression and stagnation? Or does it continue to venture forth on the open seas, on a journey that at times may be rough but which leads to progress, peace, and justice for its people? As I told Deng, "Everyone agrees that corruption and inflation must be rooted out. The question is, in rooting it out, do you also root out the delicate new growth of individual enterprise which under your leadership doubled the per capita income of the Chinese people between 1979 and 1989?"

The United States cannot and should not interfere with the choice that only the Chinese have a right to make. But if the United States continues a policy of isolating China, that will only be grist for the mill of the reactionaries. Contact and cooperation with all the major western countries is essential if those who support Deng's reforms and his opening to the West are to prevail in the inevitable struggle for power.

## What can be done to heal the rift?

Action will be required by both sides if the rift between us is to be healed.

China could consider efforts to resolve the dispute over Fang Lizhi, to restore the Fulbright program, to rescind martial law, to provide amnesty for those who engage in peaceful demonstrations, and to put out the welcome mat for tourists, students, scientists, and businessmen who wish to invest in joint ventures which would improve the lot of great numbers of Chinese people.

The United States should consider the elimination of economic sanctions, the resumption of government assistance to those who want to invest in China, and the resumption of financing of major Chinese projects by the World Bank and other international lending organizations.

The stickiest question is who goes first. The answer is that if we are to go down the same road together, we must take steps together. On the final full day of my visit I had a fascinating talk with the widow of Chou Enlai. She is physically frail but mentally as tough as Margaret Thatcher. She takes the standard Chinese line that the United States and not China caused the present difficulties. She quotes the Chinese proverb, "He

-- 6 --

who ties a knot must untie it." If her husband had adopted that attitude in 1972, we would never have been able to agree to the Shanghai Communique. Instead we decided to disagree on issues where our differences were irreconcilible and to go forward together on the major issue which united us. We need a similar approach today.

As was the case when I set in motion the opening to China during my first days in office as President in 1969, the timing and choreography of the steps each side takes toward a restoration of our relations can only be agreed upon through private diplomacy at the highest level. For this and other reasons, the Administration should consider taking one step on its own now: the resumption of contacts between high-level Administration officials and Chinese officials. Such an action should not require China to act first, because it is entirely in our national interest to have high-level communication with a nation as important as China. Cutting ourselves off from the Chinese leaders for much longer will be detrimental to our interests in Asia and to the interests of the people of China. More important, at a time when we are talking to the Soviets and the Chinese are talking to the Soviets, the Americans and the Chinese should be talking to one another. To leave the present and future leaders of China isolated, nurturing their resentments and even hatred of the United States because of what they consider to be unjustified actions against China, is senseless and counterproductive. The Great Wall of China is very thick. It is hard enough to be heard when you are inside the wall. It is impossible to be heard when you are outside. As I learned in my extended talks with China's leaders, they welcome the chance to discuss our differences. And while they will not always agree with us, they are eager to join in the search for common ground.

## Some hopeful notes.

As I found when I spent an hour last Wednesday morning shaking hands with people in a busy shopping district in Beijing, there is a great well of friendship for the United States among the Chinese people. Another very positive factor is that in our sometimes very tense discussions, not one of the Chinese leaders had a negative word to say about President Bush. They would sometimes blame the Congress, the media, and the Voice of America, but never the President. Barbara and George Bush are respected and warmly remembered in China as old friends.

Now that the sanctions bill has been reported out of committee with the Senate language virtually intact, the President will probably conclude that he has no choice politically but to sign it. We can expect some negative fallout from the Chinese on this matter, but because of their bedrock respect for the President I believe the further disruption in our relations, while unfortunate and unnecessary, will not be fatal.

I would hope that the sanctions bill will be the final

-- 7 --

backward step in this difficult episode in Sino-American relations. Lashing out at hardline Chinese leaders with further sanctions might make us feel better, but it will hurt millions of innocent Chinese people we are trying to help. The reactionaries in the Chinese leadership believe that China got along with very little contact with the West for centuries and that if necessary it can do so today. Rather than isolating China's leaders, this is the time to engage them in a constructive dialogue. George Bush knows China and is an ardent champion of American values. We should not tie his hands as he attempts to steer through these dangerous waters.

I know that there are some who believe that the United States should retreat from its responsibilities in the world and concentrate on taking care of our own problems at home. But the days when a nation could remain truly isolated from the rest of the world are gone forever. Because of the communications explosion, no nation can be an island. Ideas do not need to go across or under borders today. They go over them, and no ideological SDI can shoot them down.

On the evening of November 1st, my last night in China, I was the guest of the President of the People's Republic of China at a banquet. While my four days of conversations with him and the other leaders had been constructive, they had also been tough. They said things that I did not want to hear, and I said things that they did not want to hear. But after our talks I was hopeful enough that I struck a more optimistic note in my toast than many pundits probably expected. My closing thoughts then also make a suitable conclusion for this report: "Despite the differences that divide us today, I am more confident about the future of Sino-American relations than I was in 1972. That is because we are no longer joined together only by our fears as was the case seventeen years ago but by our hopes -- our hope for economic progress for both our peoples, our hope to reduce the danger of war, our hope for a cleaner, safer world."

Should We Help Gorbachev?

Before the Malta conference, Secretary Baker said that "this
is the first Administration since the war which has been most
concerned with the consequences of communism's demise than with
the threat of communism."

A liberal magazine recently editorialized that we should
help Gorbachev because of our interest in assuring the "success
of an economically and politically liberal regime without any
apparent expansionist ambition."

Time Magazine has declared that Gorbachev wants to "transform the Soviet Union into a more democratic society."

The headline over a recent lead editorial in the New York
Times proclaimed, "The Cold War Is Over." After Malta, President
Bush took issue with that statement. He was right to do so. But
as the "Spirit of Malta" washes over the West, he may soon find
that he is a very lonely member of a virtually silent minority.

On all sides we hear that Western ideas have won and that
communism has been defeated. And yet a communist, Gorbachev, is
the most popular man in Europe. He is equal to Bush in popularity in the United States. Among American intellectuals -- those
with post-graduate training -- 85 percent view Gorbachev favorably as against 65 percent for Bush.

Before going along with the conventional Beltway wisdom, let
us take a closer look at this exciting new superstar on the world
scene. This we know:

He is a communist. He wouldn't be General Secretary of the
Communist Party of the Soviet Union if he weren't.

He is a proud Russian nationalist, with goals and ambitions
for his country such as Russian leaders have had for centuries
before Lenin.

He is a brilliant, pragmatic political leader who likes
power, knows how to use it, and wants to keep it.

Let us examine what he has done. His political reforms have
been an enormous public relations success abroad. They have also
produced a less oppressive life for many in the Soviet Union.
They are totally inadequate compared to a free, democratic society. But compared to what the Soviets had before, they are
breathtaking. Where there was no freedom to criticize, there is

Gorbachev 2

now some. Where there was no freedom of press, there is now
some. Where there was no freedom to emigrate, there is now some.
Where there were no free elections, there are now some.

But keeping this last issue in context, while some communist
officials lost their positions in recent elections, Gorbachev
strengthened his. He is the most powerful Soviet leader since
Stalin during World War II. Stalin's foreign minister, Molotov,
once told an American who was urging him to support the concept
of free elections, "I like the idea of free elections. There is
only one thing wrong with them. You don't know in advance how
they come out." Gorbachev did not have this problem. He knew in
advance how the elections would come out as far as any effect on
his power was concerned.

Any objective observer must agree that *glasnost*, Gorbachev's
political reforms, has produced less repression for his people at
home and enormous popularity for him abroad. But his economic
reforms, *perestroika*, have been a failure in every respect. The
rhetoric has been impressive -- joint ventures, cooperatives,
private business, decentralized controls, and even some kind
words about free markets. The results have been virtually nil.
For example, in the ten years of Deng Xiaopeng's economic re-
forms, the per capita income of the Chinese people has doubled;
in the five years of Gorbachev's rule, including three in which
*perestroika* was in effect, the per capita income of the Russian
people went down.

Gorbachev's foreign policy has been a brilliant public
relations success, particularly in the West. He withdrew the Red
Army from Afghanistan and played a role in getting Vietnamese
troops out of Cambodia and Cuban troops out of Angola. He an-
nounced unilateral cuts in his defense budget and reductions in
his Warsaw Pact forces. Most important, he has repudiated the
Brezhnev Doctrine and has even been credited by some for the
repudiation of communism by the people of Poland, East Germany,
Hungary and Czechoslovakia.

For these reasons, Gorbachev's critics and friends alike
agree that he is the most exciting leader in Soviet history.
While he has only marginally changed the Soviet Union, he has
profoundly changed the world.

But what does he really believe? For one thing, he has
adopted a tolerant attitude toward religion, as did Stalin during
World War II. Unlike Stalin, however, he meets with the Pope,
because he knows the influence and power of the Pope cannot be
measured by the number of military divisions he has. Gorbachev
often speaks of God, as did Brezhnev, and he likes to say that
his mother had an icon over her bed. All this is interesting,
but it does not make him a closet Christian, just as his economic
reforms do not make him a capitalist and his political reforms do
not make him a democrat. In these areas, as in his initiative
with the Pope, he has shrewdly said what many in the West want to
hear. But it remains to be seen whether his policies will pro-

Gorbachev 3

duce what responsible leaders in the West want to see -- a truly
freer, benign Soviet Union.

Rather than just applauding what he has done, let us examine
why.

When Gorbachev came to power five years ago, he found he was
presiding over a military superpower and a Third World economic
power. Everywhere he looked he saw communism in crisis. All the
Soviets' Third World conquests were enormously expensive losers,
costing them $12 billion a year in foreign aid. Cuba, Vietnam,
Ethiopia, Angola and Nicaragua all required huge subsidies to
avoid bankruptcy. Afghanistan was costing lives as well as
money.

In Eastern Europe any observer could see that the explosive
forces of dissent were just beneath the surface. Communist
policies had produced stagnation rather than progress, and be-
cause of the massive advances in communication, the people of
Eastern Europe knew it.

At home Gorbachev saw that the Soviet economy, plagued with
corruption, drunkenness, inefficiency, and shortages, was falling
further and further behind the West. He saw that Deng's economic
reforms had produced a better life for the Chinese people. He
found that all the major industrial nations of the world were
aligned against him. He saw that his major potential adversary,
the United States, finally recovering from the malaise of the
late seventies and the recession of the early eighties, had a
booming economy, a strong foreign policy, and a new defense
initiative, SDI, that would cost the Soviet Union billions of
dollars it didn't have just to keep up.

Gorbachev is a communist, but he is not a fool. He is a
leader of great courage and vision who is not afraid to make the
bold play. He knew he had no choice but to reform at home and
retrench abroad. Otherwise the Soviet economy would collapse and
Marxism-Leninism would suffer total defeat.

And yet for two years, he temporized. He continued the
policy of his mentor, Yuri Andropov, of trying to get a bad
system to work better by eliminating drunkenness, corruption, and
inefficiency. All this produced was longer lines for vodka and
acute shortages of everything else.

Three years ago he adopted bolder political and economic
reforms. His purpose was not to abandon communism but to save
it. His economic reforms have failed, but his political reforms
dramatically improved his image abroad, strengthened his politi-
cal power at home, and earned him the support of an energized
Soviet intellectual class.

Even more important, Gorbachev has become the darling of
Western intellectuals and pundits as well. He is so different
from the old caricature of the sour, humorless communist that

Gorbachev 4

many naively rush to the other extreme and gush that he is "just like us."

As a master of the PR game, he knows how to project the image that we want to see. In a revealing moment, a leading American television commentator said on the last day of the Malta meeting that Gorbachev understood the kind of relationship President Bush wanted to have with him -- good-natured, informal, jocular -- and had delivered exactly that during the meetings. To continue the reporter's analysis, which was right on target, if Jesse Helms had been elected President last year and had been dragged kicking and screaming to a summit meeting, Gorbachev would probably have tried to win him over by talking about the evils of abortion and pornography.

That does not mean, to use a phrase that has become almost meaningless, that he isn't "for real." It does mean that, as we would with any other master politician, we should look at his deeds as well as his words, the substance as well as the style. And one area where his words and deeds diverge dramatically is the one that is the most critical for American policymakers: Soviet military power.

The defense cuts Gorbachev has announced have had a dramatic effect abroad in reducing Western fear of the threat of communism. Secretary Cheney has stated that the Soviet military threat is less than at any time in the past 15 years.

While Gorbachev's deteriorating economy may soon finally force him to cut back, he still spends 20 percent of Soviet GNP on defense, compared with six percent in the United States. In the five years Gorbachev has been in power, all three legs of the Soviet strategic nuclear triad -- land, sea, and air -- have been modernized. Soviet superiority in tanks, chemical weapons, and combat aircraft has been maintained and in some cases increased. Total Soviet military spending under Gorbachev has increased three percent every year he has been in office. In that same five-year period, U.S. defense spending has gone down by 11 percent.

What Cheney undoubtedly meant by his statement was that the likelihood that the Soviets' vast military power would be used against the West had diminished because of events in Eastern Europe. Whether or not that is true, there is still no question but that the Soviet Union's military might is greater now than when Gorbachev came to power. Even if he has been sounding to some hopeful ears like a dove, his bristling talons still make him look like a hawk.

The same is true of his foreign policy. Gorbachev has received kudos for withdrawing the Red Army from Afghanistan. But he was getting rid of a loser, and he still supplies his puppet government in Kabul with huge shipments of arms. His clients in Cambodia and Angola are still in power. He provides arms to North Korea and Libya, two notoriously aggressive nations

Gorbachev 5

that threaten their neighbors and export terrorism all over the world. He also provides arms to Cuba, which in turn are shipped to communist rebels in El Salvador after being laundered in Nicaragua. CIA Director Webster has reported that Soviet intelligence activity is increasing under Gorbachev.

Eastern Europe is where we have seen the most spectacular developments. Many say he inspired what happened there. Some say he even encouraged it. Most ignore that it was Western ideals, combined with the failure of communist ideals he still upholds and opposition to Soviet domination he represents, which brought millions into the streets in Poland, East Germany, Prague and Budapest.

Gorbachev had two choices in Eastern Europe. He could have repressed the demonstrations by implementing the Brezhnev doctrine. Or he could take credit for developments he could not contain. That he made the smart play and acted in his national interest does not qualify him for sainthood any more than Lenin's separate peace with the Germans during World War I meant that he liked the Kaiser.

The military option was not acceptable because it might not have worked. Even more important, Gorbachev had bigger targets than Eastern Europe -- Western Europe and the United States. To do what was necessary to keep unpopular puppets in power in Eastern Europe, he would have had to abandon his enormously successful efforts to seduce Western Europe and the United States. A chance to psychologically disarm his potential adversaries in the West was worth losing his absolute control of Eastern Europe. And at the same time, these countries at least temporarily remain in the Warsaw Pact, and Gorbachev can let the West help foot the bill to keep their failed economies afloat.

Regardless of what he says publicly, Gorbachev cannot be pleased by what is happening in Eastern Europe. His predecessors would not have permitted it. He is not in a position to be able to try to stop it and still accomplish his broader goals. What we are seeing under Gorbachev is a profound shift in Soviet priorities. For 70 years Soviet foreign policy drove domestic policy. Domestic policy served foreign policy. Now domestic policy drives foreign policy. Foreign policy serves domestic policy.

The Soviet economic crisis is so great that foreign and defense policies must be managed in a way that will help resolve it. Whether it is defense, arms control, Eastern Europe, or the Third World, Gorbachev's first priority is to everything he can to help the Soviet economy. By disarming the West psychologically, he removes fear, the glue that holds the Western alliance together and that provides the rationale for adequate defense budgets in the West. By projecting a benign image abroad, he increases his ability to get the credits, aid, and technology he needs to revive his sick economy. And there is a chance he may have his cake and eat it too if the West fails to see what he is

Gorbachev 6

doing and to make him pay a price for it.

This brings us to the central question in American foreign policy today: Should we help Gorbachev? If so, how?

The conventional wisdom is that we should help him. A leading East-West analyst concluded bluntly, "We should help those in the Soviet Union who are doing the right thing." But again, we must ask ourselves whether Gorbachev really is doing the right thing from our point of view. Is he a convert to Western ideas of political pluralism, individual rights, and free-market economy? Whoever believes that will believe that Santa Claus is bringing my grandchildren the $150 Nintendo sets I am buying them for Christmas.

Gorbachev is making a virtue out of necessity. He has changed, but it is a change of the head, not the heart. At a time when he is using his head, we should not lose ours. In providing help for Gorbachev we should adhere to a fundamental principle. If his ultimate goal is to make life better for the Soviet people, we should help him. But we should not help him if his ultimate goal is to make life more difficult for the West by using Western subsidies to build a more formidable, more dangerous Soviet Union.

First, his economic reforms will not work unless they are radically expanded. Bailing out the Soviet economy as it exists now does Gorbachev no favor, just as a banker does no favor to a borrower by making him a bad loan. Massive Western aid now simply permits the Soviets to postpone making the tough decision to adopt reforms that will work. As Andrei Sakharov put it, "In the absence of radical reforms in the Soviet system, credits and technological aid will only prop up an ailing system and delay the advent of democracy."

What would be radical enough? Only measures the West takes for granted but that could destroy Gorbachev as swiftly as a raging virus -- lifting price controls, encouraging more entrepreneurism, decentralizing economic decision-making. His dilemma is that if his reforms go far enough to work, they would threaten the authority of all those, such as Gorbachev himself, who depend on the Communist party and the central government for their power.

Even if the reforms go far enough to work, it is not in our interest to help Gorbachev unless his foreign policy becomes less aggressive. Even as he issues calls for new thinking in foreign affairs, Soviet power is being applied against American interests in old wars in Afghanistan and El Salvador and for propping up anti-American regimes in Cuba, Nicaragua, North Korea, and Libya.

We can help Gorbachev only if the Soviet Union becomes less repressive at home and less aggressive abroad. For example, President Bush is right to support waiving the Jackson-Vanik provisions on providing Most-Favored Nation treatment for Soviet

Gorbachev 7

products if the Soviet Union adopts new liberal emigration laws. On the other hand, we should not provide credits for food and consumer goods for the purpose of financing *perestroika*. The Soviet Union can pay for *perestroika* itself by cutting its budgets for defense and foreign adventures.

Today Japan is the second most powerful economy in the world in part because for a quarter-century the United States relieved it from the responsibility for significant defense spending. We should do no such favor for the Soviet Union. If we subsidize the Soviet economy while it continues to expand and modernize its military machine, the result could be a Soviet Union that is stronger both economically and militarily than when Gorbachev found it and that threatens us more.

Gorbachev must understand that Central America is a neural-gic issue for the United States. Sending arms to an anti-U.S. government in the Western Hemisphere is unacceptable. The idea that Gorbachev is unaware that arms he provides for Cuba are delivered to Nicaragua and then to rebels to El Salvador is ludicrous. The Soviet invasion of Afghanistan destroyed any chance for the Senate to approve SALT II. The continued use of Soviet arms by communist rebels trying to overthrow the pro-U.S. government of El Salvador could destroy the chances for approval of a START treaty.

We should apply different standards in considering what aid to provide to new non-communist governments in Eastern Europe. Even if we are not sure the reforms will work, we should gamble that these peoples' energy and creativity, suppressed for nearly a half-century, will be enough to finish the peaceful revolution they have begun. The euphoria of recent weeks aside, it is by no means a sure thing. As Gorbachev has learned, giving people the right to vote and choose their leaders is far easier than getting a stagnant economy to move again. Governing a democracy is far more difficult than governing a totalitarian system. Those who make revolution are seldom the best qualified to run a government.

Talk about a "Marshall Plan" for Eastern Europe trivializes a complex question. The nations of Western Europe suffered enormous physical damage in World War II, but they still had governmental and economic structures that enabled them to use the aid they received effectively. In Poland, East Germany, Hungary, and Czechoslovakia, the opposition forces generally do not yet have that capability. But we must nevertheless be generous with our aid, because we must do everything necessary to see that their efforts to rid themselves of communist rule do not fail. What they need, in addition to credits in the short term, is expert advice on how to run an economy and how to govern a democracy. The communists have lost the ideological battle. But the West has not yet won it. The ideals of freedom and free markets when they are celebrated but not implemented are meaningless.

Before going overboard and giving Gorbachev the aid he

Gorbachev 8

desperately needs for his terminally ill economy, we should not
lose our historical perspective.

Let me quote from an editorial in the New York Times: "One
week ago Russia came of age. She allowed her people all the fun
and trappings of a real election -- provoked not publicly by show
of hands but in private in red curtained booths behind closed
doors." Most people would assume that that editorial had been
written about Gorbachev's Russia in 1989. In fact, it was written
about Stalin's Russia in the 1930s. Gorbachev is not a
Stalinist, but he is also not a Jeffersonian democrat. I am
simply suggesting that we should examine his motives just as
coldly as he is examining ours.

I do not question Gorbachev's sincerity. He is profoundly
sincere in wanting to rescue the Soviet system from a terminal
illness. He has been bold and courageous in adopting policies at
home and abroad that serve that purpose. We should help Gorbachev -- but only if his reforms go far enough to have a chance to
succeed and if as a result the Soviet Union becomes less oppressive at home and less aggressive abroad.

Congressional Record

PROCEEDINGS AND DEBATES OF THE 101st CONGRESS, FIRST SESSION

Vol. 135

WASHINGTON, TUESDAY, NOVEMBER 21, 1989

No. 165

Senate

CHINA

Mr. SIMPSON. In June of this year, the world was shocked and mesmerized as it watched the events unfolding in Beijing. We saw that live on television. We watched the struggle in that part of the world that was, until fairly recently, closed off from our view.

Even as we were still welcoming the opening of China's door to the world, it swiftly began to close. Just as we were welcoming them into emergence as a full partner into the global community of nations, freedom's beacon dimmed dramatically and took with it our view into a nation and a culture that represents more than one in five of all living people on the Earth.

Even though the ground of Tiananmen Square shook only briefly, its reverberations rippled continually throughout the globe—politically, culturally, and economically.

I think, here in the Nation's capital, we have tried to understand what happened and to judge the broader implications of that tragic time and that tragic night of June 4.

But our emotional reactions have given way to, I think, a bit cooler analysis now, but yet we seem to have lacked the seasoned thoughtful and focused analysis of the broader ramifications of this recent event in a nation whose history dwarfs our own.

I can tell you now I feel we have received such an analysis and review. It is not a white paper prepared by a think tank, nor does it represent the combined thinking of scholars and career Foreign Service officers. No. The review was personally prepared by the one man in this Nation whose perspective is totally unique, and whose credentials in China matters and in world affairs is internationally respected. He will go down in history as such. I have known him since he was Vice President, while my father was serving as Governor of Wyoming. I have sought his thoughtful and inclusive counsel and advice over the years since then.

His name is Richard M. Nixon. He is a most remarkable national resource, and we should use him more. I hope we will.

So, Mr. President, our fine 37th President was in Beijing from October 28 until November 2, and during those

6 days he spent 20 hours in meetings with every major Chinese leader.

On his return, he briefed President Bush, Vice President QUAYLE, and other top administration officials on his findings and his observations and his judgment.

He has now provided me and several other Members of the Senate with a stunning and wholly illuminating 7-page analysis in crisp language—clear, crisp language—understandable language of the situation in China, and its relationship with our country and the rest of the world.

It is really quite a remarkable document. I was pleased he called me before he left for China and told me of his trip before it was announced. He said he would brief the President when he returned, and he hoped to visit with Members of Congress when he returned. I hope we will do that with him.

Our former President, Jimmy Carter, was here in the Capitol a few days ago. I said to him, "It is important that you be used as a resource, to share with us who are presently in Government and in Congress some of the insights you have of domestic affairs and foreign affairs."

I think it is an absolute tragedy that we do not utilize the energy, the background, and the history that former Presidents can bring to us. We have four of them as a resource: President Ford, President Reagan, President Carter, and President Nixon; and we should use them.

When you read this analysis of China, present-day China, I think you are going to see that we are making a tragic mistake by not doing just that—using these fine men.

So the document comes as the opinion of a man who was our President. In February 1972, he opened the door to China. President Nixon is known to the Chinese as the person who took the risk, and had the courage to open that door to America and to the world. His trip was a stunning success. He renewed and refreshed his credibility—for he had it already. It is just as strong today as it was then.

It is that credibility that enabled him to discuss so frankly our differing viewpoints of China's actions in April, May, and June.

President Nixon spoke with Chinese

leaders not only of the events of early June; he discussed the full range of our relationship in the context of where we go from here. He spoke of China's responsibility to the world, whether or not they choose an open or closed policy; and issues such as global warming.

How can you have a debate on global warming in the world when you exclude the country where one-fifth of the people of the world live? That is what we are headed into as we build these barriers higher and higher.

China's nuclear weapon capability—we have to talk about that. Regional, as well as global disputes and relationships—he speaks of those things. Our respective role toward the Soviets, China's participation in international trade and finance, and the toughest question of all: How do we start or restart our walk down the road together as world powers—whether we like it or not?

That is where we are.

Well, President Nixon did not have to do that for us. He was not required to do that. He was not even asked. He saw a situation about which he knew a great, great deal and in which he had credibility and access superior to almost any other person.

He acted as a concerned citizen, and he was not on a government mission to China. It was a private undertaking. It was not funded by the taxpayers. It was funded by Richard Nixon. He did not ride in an Air Force plane, nor was he surrounded by phalanx of Secret Service bodyguards.

This paper of his is crisp and sharp and incisive. It is clear and logical. It is reasoned, and it is filled with insight.

I strongly commend it to my colleagues and to all others who seek to truly understand what recently happened in China, and how in the interest of world harmony and peace we should now move forward, even from powerfully different viewpoints, in an effort to open a crack in that great door and let the light of truth, freedom, and cooperation shine brightly through the opening in both directions.

We owe a real debt of gratitude to our fine former President—really and quite truly a man of the world.

I visited with him this afternoon by phone. I told him I had read this. I

said, "You have sent it to very few, and I wonder if you would let me share it with my colleagues and with the country." He said, "If you wish."

So I shall. I hope, too, that we will get to know the new Ambassador to the United States from China, who seems to be a very interesting, responsive, and accessible man, and he can help us to begin to see where we go from here.

It is so easy—we do it beautifully here, all of us; I do, too—to just mash another country for their discretions. But that is what the U.N. is for. That is where you can have the wrestling match. I do not think the wrestling matches should always be here.

That does not mean we do not or should not criticize and really "lay it on," and the recent El Salvador issue is a classic example.

What a terrible turmoil from the right and the left, and we hear the debate. You hear one colleague and he is very convincing, and you hear the colleague on the other side and he is very convincing. It is tough stuff. But we are hired on to try to deal with that. We do not always do it well, but at least we do it and we try—and we do often come up short.

I am always fascinated that in this line of work people expect perfection out of us, yet they do not have it in their own lives. In fact, the less perfection they have in their own lives, the more they dump on us. I find that they talk about control of other nations of persons. A person with less control over their own life is always trying to control somebody else's life. That is another interesting part. But I am not going to check in as the shrink of the day, and I will drop that now.

I hope that you will all agree, when you read these comments, that we must indeed be very, very cautious.

I am going to conclude on a most topical part of the situation with China. The occupant of the chair knows this issue, and others have been thoroughly involved. We have some remarkable legislation that we passed for the Chinese students who are here in America. The President said that nothing would happen to them; that they would not be returned until it was safe.

That was not enough. So we added more here, and I think the Senate did a very credible job. It was, I think, more than we have given to any other people from any other country on Earth in the same situation, but it was a credible job. Then it went to the House, and they added more and more, in a spirit of: We will show those people in China what we are doing and about freedom and the torch and the Statue of Liberty and Tiananmen Square; we will show them.

Well, I think we have. We have sanctions, which you will see from Richard Nixon's comments, which are not going to be productive for us or for them. But the one thing we have done in our excitement is that we have passed a bill now which I do not think will be signed by the President; I think it will be vetoed, because what we have done is change our visa laws and our

immigration laws to provide a benefit which we do not provide to anybody under any circumstances anywhere.

In the course of it, the Chinese Government was saying something to us, and we ignored it. First, they terminated the Fulbright scholarship program for a year. Apparently, we did not hear that. And now they have said, if that current bill passes and becomes the law of the United States, we will terminate the Fulbright program completely, forever, together with every other educational program in the sponsorship between the two countries.

I cannot imagine what would be worse. How does anyone imagine how Tiananmen Square came to be filled with bright people talking about freedom and democracy? It was because they smelled it here. They often got their first whiff of the action here and they then went back. Now, by that simple action, just the other day we are told that the Chinese Government will terminate the Fulbright program. I cannot imagine what would be more absurd. We are going to let that happen, apparently. I do not think the President will. He will take flak if he vetoes it, but he will surely be able to explain it.

It is partisan—and I think some of it in the House is—but not here. The House seems to love partisanship, because they have been mashing one poor party over there for 35 years. It is more fun to do that. Here the poor old Republicans struggled into power for a few years and let the other half see how it really is. They know the feeling. We here in the Senate understand that marvelous tension of minority and majority, and they do not always seem to, down the hall. Speaker FOLEY does; his predecessor did not understand it, and that is one of the things that brought him down. You cannot operate in a legislative arena of two parties when you have an abused minority. Under Speaker FOLEY, that does not take place.

But in any event, we have some serious problems, and I think it was partisan—I am not saying to any intense degree, but it did turn into that, and now we have a bill which may be more detrimental than we will ever know. I said to some of those who were involved in it:

> If you want to think of it as partisan, why do you not visit with Bill Fulbright and inquire of him what he thinks about your activities in these last few days?"

This remarkable, steady Democratic Senator from Arkansas, who changed the course of the world's human relations, must be as offended as I am to know that we would just continue to push, push, push, when we did not have to do it, and destroy the very thing that opened the avenue of life and truth and democracy and freedom that happened in April, May, and June in the People's Republic of China. We really do a beautiful job of blasting our own toes off before we ever get the pistol out of the holster.

I thank you, Mr. President, and I ask that the full text of the remarks of former President Richard Nixon be printed in the RECORD at this point.

There being no objection, the remarks were ordered to be printed in the RECORD, as follows:

### THE CRISIS IN SINO-AMERICAN RELATIONS

In six days in Beijing from October 28 to November 2, I had over twenty hours of one-on-one discussions with eight major Chinese leaders, including Chairman Deng Xiaoping, Premier Li Peng, General Secretary Jiang Zemin, President Yang Shangkun, the sophisticated Foreign Minister Qian Qichen, the very able Minister of Education Li Tieying, the brilliant Minister of Propaganda Li Ruihuan, and the extraordinarily competent Mayor of Shanghai Zhu Rongli. The talks were highly candid, covering the political and economic situation in China, the current crisis in U.S.-China relations, and other international issues including the Chinese assessment of Gorbachev, of the revolutionary developments in Eastern Europe, and of the current situations in Cambodia, Afghanistan, and other Third World trouble spots.

On my return, I have an eighteen-page report to President Bush containing my assessment of the Chinese leaders and suggestions as to how the Sino-American relationship might be improved. I also discussed Sino-American relations at an informal dinner the President and First Lady hosted at the White House which was attended by the Vice President, Brent Scowcroft, John Sununu, William Webster, Under Secretary of State Larry Eagleburger, and Michel Oksenberg, the NSC's China specialist in the Carter Administration. Dr. Oksenberg attended all my meetings with Chinese leaders.

Because of the sensitivity of some of the issues, I am not going to make any public statements at this time. But since I discussed the trip with each of you before departing for Beijing, I thought it would be useful if I shared with you some of my observations on the current state of Sino-American relations.

Sino-American relations are in the worst condition they have been in since before I went to China seventeen years ago. One of the major reasons is that Americans and Chinese see the tragic events of June 4 from totally different perspectives. The gap between us on that issue is totally unbridgeable. I pointed out to Chinese leaders that most Americans, including many friends of China, believe that the military crackdown was brutally excessive and totally unjustified. In response, every Chinese leader I talked to insisted that the suppression of the demonstrations was necessary and justified. They believe the American reaction was an unacceptable intrusion in their internal affairs. They believe the American media grossly exaggerated June's events. They think that the economic sanctions, cessation of high-level official contacts, and moral condemnation from a nation with inadequacies of its own is hypocritical and unjustified. They recall bygone days when their nation was bullied and exploited by outside powers. As a result, some of the Chinese leaders now exhibit a distrust of the United States that is reminiscent of the period before 1972.

Before I went to China this year, my five-year-old granddaughter, Melanie Eisenhower, asked me on the telephone whether I could speak Chinese. When I told her that I did not she responded, "Then why are you going? They won't understand you." The tragedy is that even if I had been able to speak Chinese, they would not have understood me because of our totally different views on what happened. On several occasions I referred to the use of excessive force on June 4 as a tragedy. They refused to accept that; they insisted on calling it an "incident."

L.C.],

a villain. As one close Chinese friend pointed out to me, no proud Chinese leader—indeed, no national leader anywhere—can ever admit that he is a villain. One top Chinese leader told me that any colleague who humiliated China in the world community by acting contrite did not deserve to be in office. Contribution may be an attractive characteristic in soap opera stars, but not in leaders, of great nations such as China. This does not mean that we excuse what happened in June. But we should adopt the same approach we used in the Shanghai Communique, acknowledging both our differences about the crackdown and our common interest in building for the future in spite of it.

### CAN THE CRISIS BE RESOLVED?

There is no way we can resolve our differences on the tragic events of June. But it would compound the tragedy if we allowed them to permanently damage a relationship that has been so beneficial to the Chinese people, the American people, and the cause of peace and progress in Asia. So we must keep the events in perspective. Great as our differences are over what happened in Tiananmen Square, our differences were infinitely greater when we established relations with the PRC in 1972 after twenty-three years of no communication whatever. We disagreed with the Chinese on Vietnam, on Korea, on Japan, on Taiwan, and on philosophy. China was still in the final throes of the Cultural Revolution, during which millions had died in an ideological crackdown far more brutal than what has happened this year. But we recognized then that while we had irreconcilable differences we had one overriding common interest which brought us together—the need to develop a common policy to deter an aggressive and expansionist Soviet Union which threatened us both. Today, when the conventional wisdom is that the Soviet threat has diminished and when many proclaim that the cold war is over, do we still have a common interest which overrides our differences? And if not, what is the glue that can keep us together in the years ahead?

### DOES IT MATTER?

1. Assuming that the cold war is over and that the Soviet Union is not a major threat to either of us—a conclusion, incidentally, that every Chinese leader I met rejects—we still have a strong strategic interest in restoring a good relationship with the PRC. President Bush will go head-to-head with Gorbachev in the Mediterranean on December 2nd. There is no question but that Gorbachev is an exciting new kind of leader of the Soviet Union. But we must also recognize that in not implementing the Brezhnev Doctrine in Hungary, Poland, and East Germany, in cutting back marginally on his military budget, and in reducing his support of his clients in the Third World, Gorbachev is simply making a virtue out of necessity. He is using his head. At a time when he is using his head, we should not lose ours. Gorbachev is not a closet democrat, a philanthropist, or a fool. His handshake will be warm, but based on his past record we can assume that he will have a card or two up his sleeve. We should never threat China as a card. But it would not serve our interests if Gorbachev was able to do so. Today, the Chinese are talking to the Russians and we are talking to the Russians. But we don't talk to each other. The suspension of high-level contracts has served its purpose in expressing our outrage at the crackdown. Now we must once again adopt a policy toward China that serves our geopolitical interests, and such a policy will require high-level contacts.

2. China is a nuclear power. Without China's cooperation, we cannot have an effective policy of non-proliferation of nuclear weapons and will have no leverage at all in trying to prevent the sale of missiles and other destructive weapons to countries with trouble spots like the Mideast.

4. China has an indispensable role to play in the maintenance of peace and stability in the Asia-Pacific region. Peace cannot be maintained in Korea, the Taiwan issue cannot be resolved peacefully, the people of Hong Kong cannot enjoy a future as an autonomous, capitalist, and democratic entity, and peace cannot come at last to Indochina unless both the PRC and the United States are constructively and responsibly engaged in regional affairs.

5. China inevitably will become a major economic power, and its over one billion people will provide a huge market for the advanced industrial countries. Do we want to rule ourselves out and leave that potential market to the Japanese and the Europeans? Is the door chink we opened with such high hopes seventeen years ago to be closed?

6. Looking to the future, China, not because of communism but in spite of it, will be an economic and military superpower. Do we want to run the risk of being an adversary rather than an ally of China in the next century?

7. Global warming is the currently fashionable topic ub think tanks and on editorial pages. How do we deal with this and other environmental issues without the cooperation of one-fifth of all the people on earth?

### DOES IT MATTER TO THE CHINESE?

Despite the criticism he received for his role in the tragedy of June 4, Deng Xiaoping, who twice has been named as Time Magazine's "Man of the Year," was one of China's greatest leaders. Gorbachev's political reforms have received the headlines, but Deng's economic reforms have produced the goods. In the ten years between 1979 and 1989, the per capita income of China's one million people doubled. In the five years that Gorbachev has been in power in the Soviet Union, the per capita income of the people of the Soviet Union has gone down. This does not mean that we approve of economic reform without political reform. But political reform without economic reform, no matter how popular it is in the short run, will fail in the long run. Economic reform without political reform will succeed in the short run, but will fail in the long run unless political reforms follow. If the Deng economic reforms, combined with his opening to the West, survive him, then the pressures for political reform will inevitably bring progress on that front as well.

All the leaders I met told me that Deng's economic reforms would continue and were irreversible. But now that he has announced his retirement, there will without question be a major battle for power between the reformers and the reactionaries who want to return China to the policies that existed before 1972. In a toast at a banquet hosted by the Premier on October 30th, I said that the choice China must make is a clear one. Is China to turn away from greatness and consign itself to the backwater of oppression and stagnation? Or does it continue to venture forth on the open seas, on a journey that at times may be rough but which leads to progress, peace, and justice for its people? As I told Deng, "Everyone agrees that corruption and inflation must be rooted out."

### WHAT CAN BE DONE TO HEAL THE RIFT?

The stickiest question is who goes first. The answer is that if we are to go down the same road together, we must take steps together. On the final full day of my visit I had a fascinating talk with the widow of Chou Enlai. She is physically frail but mentally as tough as Margaret Thatcher. She takes the standard Chinese line that the United States and not China caused the present difficulties. She quotes the Chinese proverb, "He who ties a knot must untie it. If her husband had adopted that attitude in 1972, we would never have been able to agree to the Shanghai Communique. Instead we decided to disagree on issues where our differences were irreconcilable and to go forward together on the major issue which united us. We need a similar approach today.

As was the case when I set in motion the opening to China during my first days in office as President in 1969, the timing and choreography of the steps each side takes toward a restoration of our relations can only be agreed upon through private diplomacy at the highest level. For this and other reasons, the Administration should consider taking one step on its own now: the resumption of contacts between high-level Administration officials and Chinese officials. Such an action should not require China to act first, because it is entirely in our national interest to have high-level communication with a nation as important as China. Cutting ourselves off from the Chinese leaders for much longer will be detrimental to our interests in Asia and to the interests of the people of China. More important, at a time when we are talking to the Soviets and the Chinese are talking to the Soviets, the Americans and the Chinese should be talking to one another. To leave the present and future leaders of China isolated, nurturing their resentments and even hatred of the United States because of what they consider to be unjustified actions against China, is senseless and counterproductive. The Great Wall of China is very thick. It is hard enough to be heard when you are inside the wall. It is impossible to be heard when you are inside the wall. It is impossible to be heard when you are outside. As I learned in my extended talks with China's leaders, they welcome the chance to discuss our differences. And while they will not always agree with us, they are eager to join in the search for common ground.

SOME HOPEFUL NOTES

As I found when I spent an hour last Wednesday morning shaking hands with people in a busy shopping district in Beijing, there is a great wall of friendship for the United States among the Chinese people. Another very positive factor is that in our sometimes very tense discussions, not one of the Chinese leaders had a negative word to say about President Bush. They would sometimes blame the Congress, the media, and the Voice of America, but never the President. Barbara and George Bush are respected and warmly remembered in China as old friends.

I would hope that the sanctions bill will be the final backward step in this difficult episode in Sino-American relations. Lashing out at hardline Chinese leaders with further

On the evening of November 1st, my last night in China, I was the guest of the President of the Peoples Republic of China at a banquet. While my four days of conversa-

tions with him and the other leaders had been constructive, they had also been tough. They said things that I did not want to hear, and I said things that they did not want to hear. But after our talks I was hopeful enough that I struck a more optimistic note in my toast than many pundits probably expected. My closing thoughts then also make a suitable conclusion for this report: "Despite the differences that divide us today, I am more confident about the future of Sino-American relations than I was in 1972. That is because we are no longer joined together only by our fears as was the case seventeen years ago but by our hopes—our hope for economic progress for both our peoples, our hope to reduce the danger of war, our hope for a cleaner, safer world."

The PRESIDING OFFICER. Does the Senator from Rhode Island seek recognition?

Mr. CHAFEE. I do.

The PRESIDING OFFICER. The Senator from Rhode Island is recognized.

## Essay

### Richard Nixon

# Should the U.S. Help Gorbachev?

The headline over a recent editorial in the New York Times proclaimed, **THE COLD WAR IS OVER.** President Bush has rightly taken issue with that statement. But as the "spirit of Malta" washes over the West, he may soon find that he is a very lonely member of a virtually silent minority. On all sides we hear that Western ideas have won and that Communism has been defeated. And yet a Communist named Gorbachev is the most popular man in Europe.

Let us take a close look at this new international superstar. As a Communist he is publicly dedicated not to renouncing Marxism, like millions of demonstrators in Eastern Europe, but to rejuvenating it. He is a proud Russian nationalist. He likes power, knows how to use it and wants to keep it. His political reforms, *glasnost*, are totally inadequate compared with a free society. But compared with what the Soviet people had before, the changes are breathtaking. His economic reforms, *perestroika*, have been an abject failure. For example, in the

ten years of Deng Xiaoping's economic reforms, the per capita income of the Chinese people has doubled. In the five years of Gorbachev's rule, the per capita income of the Russian people has gone down. But while Gorbachev has only marginally changed the Soviet Union, he has profoundly changed the world, simply by saying what many in the West want to hear after generations of Soviet intransigence.

Rather than just applauding *what* he has done, let us examine *why*. When Gorbachev came to power he found he was presiding over a military superpower and a Third World economic power. His clients in Cuba, Viet Nam, Ethiopia, Angola and Nicaragua required huge subsidies. Afghanistan was costing lives as well as money. In Eastern

Europe the explosive forces of dissent were building dangerously. The stagnant Soviet economy was falling further and further behind the West. Gorbachev's only option was to reform at home and retrench abroad.

For two years, he temporized, trying to get a bad system to work better by eliminating drunkenness, corruption and inefficiency. This policy failed, so he adopted bolder reforms. His purpose was not to abandon Communism but to save it. Ironically, by doing so he has become the darling of Western intellectuals and pundits.

As we would with any other master politician, we should look at Gorbachev's deeds as well as his words. One example is Soviet military power. He still spends 20% of his gross national product on defense, compared with 6% in the U.S. He has modernized all three legs of the Soviet strategic nuclear triad. Soviet superiority in tanks, chemical weapons and combat aircraft has been maintained and in some cases increased. The Soviet Union's military might is greater now than when Gorbachev came to power. Even if he has been sounding to some hopeful ears like a dove, his bristling talons still make him look like a hawk.

Many observers say he inspired the changes under way in Eastern Europe. Some even say he encouraged them. Most ignore that it was Western ideals, combined with the failure of Communist ideals he still defends and opposition to Soviet domination he represents, which brought millions into the

streets. It is true that he could have repressed the demonstrations, but it might not have worked and would have inevitably derailed his brilliant diplomatic blitzkrieg aimed at psychologically disarming the West. Instead, he is now getting credit for developments he could not contain.

A leading foreign policy analyst concluded bluntly, "We should help those in the Soviet Union who are doing the right thing." But is Gorbachev really a convert to those ideals we consider the "right things"—political pluralism, individual rights and a free-market economy? Whoever believes that will believe Santa Claus is bringing my grandchildren the $150 Nintendo sets I am buying them for Christmas.

Gorbachev has changed, but it is a change of the head, not the heart. At a time when he is using his head, we should not lose ours. In providing help for Gorbachev, we should adhere to a fundamental principle. If his ultimate goal is to make life

better for the Soviet people, we should help him. But we should not help him if his ultimate goal is to make life more difficult for the West by using Western subsidies to build an economically and militarily stronger Soviet Union with the same aggressive foreign policy.

His economic reforms will not work unless they are radically expanded. As Andrei Sakharov put it, "In the absence of radical reforms in the Soviet system, credits and technological aid will only prop up an ailing system and delay the advent of democracy."

What will work? Only policies the West takes for granted but that could weaken Gorbachev's grip on power—lifting price controls, encouraging more entrepreneurism, decentralizing economic decision making.

If the reforms do go far enough to work, it is still not in our interest to help Gorbachev unless his foreign policy becomes less aggressive. Even as he issues calls for "new thinking," Soviet power is being applied against American interests in Afghanistan and El Salvador and for propping up anti-American regimes in Cuba, Nicaragua, North Korea and Libya. When Gorbachev asks the U.S. to help pay for *perestroika*, we should insist he pay for it himself by cutting his budgets for defense and foreign adventures.

Is Gorbachev "for real"? Let us look again at the editorial page of the New York Times: "One week ago Russia came of age. She allowed her people all the fun and trap-pings of a real election—voting not publicly by show of hands but in private in red-curtained booths behind closed doors." Most people would assume that editorial had been written about Gorbachev's Russia in 1989. In fact, it was written about Stalin's Russia in the 1930s. Gorbachev is certainly not a Stalinist, but he is also just as certainly not a Jeffersonian democrat. We should examine his motives just as coldly as he is examining ours.

I do not question his sincerity. He is profoundly sincere in wanting to rescue the Soviet system from a terminal illness. He has been bold and courageous in pursuing that goal. We should help him—but only if his reforms go far enough to have a chance to succeed and if, as a result, the Soviet Union becomes less repressive at home and less aggressive abroad. ■

CHRIS NEDENTHAL

94

TIME, DECEMBER 18, 1989