We learn very young that Benjamin Franklin with charm and cunning forged the Franco-American alliance that won our Independence.

That’s what we were taught, anyway. But it’s not true.

The true story is that in 1775 the Continental Congress decided to send someone on a secret mission to persuade France to arm them against Britain. Franklin proposed  a Yankee shopkeeper named “Silas Deane”. Deane had never left Connecticut in his life, could not speak a word of French, and knew nothing about diplomacy. Franklin thought that Deane was such an improbable spy the British would never suspect him.

With nothing but the worthless paper money printed by the Continental Congress, Deane arrived in France in July, 1776, unaware that Congress had just declared Independence. He was, in effect, our first emissary to Europe, and for the next six months without any diplomatic instructions, he improvised. He succeeded in his mission with the help of the French comic playwright, Beaumarchais, who wrote, “The Marriage of Figaro,” and “The Barber of Seville.” 

Beaumarchais was a dashing and brilliant bon vivant who invented the wrist watch, designed the modern harp, and built the Paris water system. He was also an arms dealer on the side.

Together Deane and Beaumarchais shipped all the arms and supplies for the Continental Army even before Franklin set foot in France.

None of this secret dealing would have been possible without the unwitting help of the French ambassador to London, the Chevalier d’Eon. D’Eon was a famous military hero, an accomplished diplomat, and a French spy. He was also blackmailing Louis XVI, and the King had asked Beaumarchais to try to negotiate with D’Eon.

When D’Eon met Beaumarchais he was instantly drawn to the handsome playwright and confessed that he was, in fact, secretly a woman. D’Eon told Beaumarchais that her father had preferred a son and raised her as a boy and that in her male disguise she found opportunities to succeed that no woman ever had.

Beaumarchais offered to marry d’Eon in exchange for her abandoning both her blackmail threat and her male persona. Beaumarchais’ reward for neutralizing the threat to Louis XVI was that the King agreed to give Beaumarchais the arms for the Americans.

Thus, d’Eon’s decision to come out as a woman provided the catalyst that forged the Franco-American alliance and won our independence.

This Independence Day let’s remember our debt not just to Silas Deane, Beaumarchais, and France, but also to the cross-dressing spy who made it all possible.

The election of the forty-first Republican and the first nudie model to the U.S. Senate has the pundits chattering. Scott Brown’s victory in the Massachusetts senate race is being read as a dark omen of what the Democrats will face in the mid-term election. Does Scott Brown’s election really signal the emergence of the Tea Party as a powerful new reactionary force on the American political scene? Does his election foretell the end of the Democratic majority? Is it a turning point in American politics?  

We can’t know for sure, but history is never so predetermined. It’s more than likely that the pundits are wrong. After all these are the same pundits who predicted last year that the Democratic majority would rule for a generation – before they predicted that Obama was unelectable and Hillary Clinton had the Democratic nomination sewn up.

Here’s another interpretation: Scott Brown defeated an indifferent Democratic politician who didn’t even bother to campaign. The handful of voters who showed up at a special election in the middle of winter were motivated by frustration and anger – not necessarily directed at President Obama – but at the local Democratic machine politicians who took them for granted and run Massachusetts like a one-party state.

The media’s penchant for reading too much into Scott Brown’s election is a common phenomenon. Looking backward we often attribute significance to events that might be merely random localized occurrences. On the other hand, sometimes random occurrences can alter the course of history. We learn in school that history is determined by great leaders, big ideas, or broad social movements. But sometimes, history is determined by accident.

The success of the American Revolution, for example, has been attributed to a wide-range of causes: the brilliant leadership of our founding fathers, the ideology of civic republicanism, and the social mobility of American colonists. But a more likely explanation is the particular timing of France’s intervention on the side of the colonies.

Why did Louis XVI agree to aid the American revolutionaries when they appeared to be losing? The conventional explanation is that Benjamin Franklin charmed the French monarchy into providing all of the arms, ammunition and supplies for the Continental Army. But, in reality, Franklin had nothing to do with it.

In January 1776, long before Franklin arrived in France, he sent an unknown Connecticut shopkeeper, Silas Deane, on a secret mission to persuade Louis XVI to arm the Americans. Deane had never left Connecticut in his life, could not speak a word of French, and knew nothing about diplomacy. But Franklin thought that Deane was such an improbable emissary that the British spies would never suspect him.

Deane succeeded with the help of two Frenchmen: the comic playwright Caron de Beaumarchais and the French ambassador to London Chevalier d’Eon. This improbable trio are the subject of my new book, UNLIKELY ALLIES: How a Merchant, a Playwright, and a Spy Saved the American Revolution.

Beaumarchais was one of the most interesting men of the nineteenth century. Though he is best remembered as the author of the original plays, “The Barber of Seville” and “The Marriage of Figaro,” he also invented the wristwatch, designed the modern harp, performed and taught music, built the Paris water system with the Perrier brothers, spied for the French King, and traded arms on the side. Deane and Beaumarchais together smuggled all of the arms, ammunition, uniforms, tents, blankets, and boots for an army of 30,000 men passed a swarm of British spies and through a British blockade to the Continental Army. The arms were sent before Franklin even set foot in France, and they arrived just in time to sway the outcome of the Battle of Saratoga, the turning point of the American Revolution.

None of this would have been possible without the leavening influence of the flamboyant Chevalier d’Eon. D’Eon was a decorated French war hero, an accomplished diplomat, and a brilliant spy, who was also blackmailing the French king. Louis XVI sent Beaumarchais on a secret mission to London to persuade d’Eon to surrender the incriminating documents. The dashing playwright ended up seducing d’Eon, who  admitted to Beaumarchais that he was in fact – a woman.

D’Eon’s decision to come out as a woman after forty years disguised as a male soldier, diplomat and spy set in motion a series of events that provided the catalyst that convinced Louis XVI to arm the Americans against the British. How and why that happened is the story of UNLIKELY ALLIES.

The point of my book is that history isn’t just hammered out by great leaders or great ideas or great social movements; the arc of history is just as often bent by random events, peripheral characters, and strange coincidents. History, like weather, is subject to the famous “butterfly effect.”

Scott Brown’s election is another chance occurrence. Perhaps he will change the trajectory of political history. But I doubt it. Right now, the forty-first Republican has nothing coherent to offer except his rigid opposition to health reform. Between now and the next election there will be many more butterflies that none of us can anticipate. We should be cautious about reading too much into a special election.

I’m not saying that Brown’s election is completely irrelevant. Maybe someday Brown will look no less significant in American history than that cross-dressing French spy who revealed herself. But for now all we can say for sure about Brown is that the senator has no clothes.

Cross-posted at http://www.acslaw.org/node/15336

The ninth circuit federal court of appeals in San Francisco has held that former Attorney General John Ashcroft is personally liable for illegally detaining American citizens after 9-11. The court’s decision represents a stunning victory for the principle that no one is above the law.

The ninth circuit’s opinion arose out of a case brought by an American citizen born in Wichita, Kansas, to parents of U.S. citizenship. His given name was Lavoni Kidd. He was a football star at the University of Idaho. Sometime in college he decided to convert to Islam and changed his name to Abdullah al-Kidd. In 2003 al-Kidd received a scholarship to study Arabic and Islamic law at a university in Saudi Arabia. On his way to Saudi Arabia al-Kidd was approached by federal agents at Dulles Airport and arrested. He was not charged with any crime. The government claimed that al-Kidd was a material witness in the criminal trial of another Islamic man he knew at the university, who was being prosecuted for visa fraud. The government claimed that al-Kidd was fleeing the jurisdiction and that he had a one-way $5,000 business class ticket on him. In fact, al-Kidd was travelling on a $1700 roundtrip coach class ticket, and he had left his wife and children behind in Nevada.

It turned out that the government never had any reason to call al-Kidd as a material witness. It was merely a pretext for detaining him. He was detained for more than two weeks, subjected repeatedly to humiliating body searches, kept in a brightly lit high-security prison cell 23-hours per day, and handcuffed and shackled whenever he was moved. For fifteen months after his release from federal prison the government required him to remain at home in Nevada, limit his movements out of the house, surrender his passport, and report regularly to a probation officer.

Al-Kidd sued Attorney General Ashcroft with the help of the American Civil Liberties Union (ACLU), alleging that as a consequence of his detention, he lost his job, his opportunity for study abroad, and his marriage.

As attorney general John Ashcroft authorized the use of the federal material witness statute to detain Islamic men whom the Justice Department thought might possibly be terrorists. But the material witness statute was not intended for preventative detention, which is generally prohibited by the Constitution. The federal statute only allows the government to detain a person who is a material witness in a criminal trial for a temporary period if the government reasonably believes that there is a likelihood that the witness might otherwise disappear while a trial is pending. The men detained by Ashcroft were not necessarily material witnesses to any pending criminal trials.

In the law suit Ashcroft made the extravagant claim that as attorney general he was absolutely immune from civil liability. The Supreme Court has said that federal prosecutors may have absolute immunity from a narrow class of claims arising out of a prosecutor’s actions in court. But the Supreme Court has made it clear that this is a very limited exception and that prosecutors are not immune for illegal actions or decisions that take place outside of a courtroom.

In its decision in al-Kidd v. Ashcroft, the ninth circuit reaffirmed this traditional limitation on the absolute immunity of prosecutors. In this case it’s clear that Ashcroft made a policy decision to use the federal material witness statute as a license for preventative detention of Islamic and Arab men. It had nothing to do with prosecuting crime in court; it was merely a tool for waging the war on terror.

The Framers of our Constitution did not permit arbitrary or preventative detention, even of persons who might be thought dangerous. The generation that fought the American Revolution was not naïve about foreign risks to our domestic security. They certainly understood the vulnerability of a democratic society to spies and saboteurs, as my book UNLIKELY ALLIES attests. But the Framers preferred to err on the side of personal liberty rather than to create a police state that might be safer, but stultifying.

In this regard the Framers of our Constitution were choosing to protect liberties that were not necessarily protected by the British Constitution. Britain was much more inclined to sacrifice the rights of British citizens to serve the cause of state security. In UNLIKELY ALLIES the French Foreign Minister Vergennes wryly observed that “only a government as free as England’s would be so suspicious of its own subjects.” That was precisely what the Framers did not want to happen in America.

Our Founding Fathers revolted against arbitrary rule and fought for the proposition that even the king’s representatives in the colonies should be held accountable for their actions. The ninth circuit has struck a blow against arbitrary government. In doing so it has opened up the possibility of more claims being brought against other former government officials who established or implemented anti-terrorism policies that were exceeded the limits of our Constitution. The full scope of the Bush Administration’s chilling excesses in the war on terror is carefully chronicled in Jane Mayer’s excellent book, THE DARK SIDE. After reading Mayer’s well-balanced account, I am more grateful to our Framers than ever that under our Constitution, our leaders will be held to account for their abuses of power.