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 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.

We are accustomed to reading histories that deify the Founding Fathers. They, after all, overthrew the world’s greatest military power to establish a republic, and they did it with rhetorical grace that even today stirs the heart. Our idealized view of the Founding Fathers obscures their failings as often as it eclipses other great American political leaders who did not have the good fortune to be alive in 1776.

I’m thinking, of course, of Senator Kennedy whose passing last week finally drew him the bipartisan praise that he had earned but was generally denied in his lifetime. Whatever one may think of his liberalism, he was a fierce and effective advocate, who nevertheless respected his colleagues on both sides and conducted himself with a civility that is as absent today from politics as it was in 1776. Ted Kennedy understood that just because a person has a different opinion about tax policy, health care, or military spending is no reason to question his patriotism, intellect, or character.

What makes Kennedy’s collegiality extraordinary is that he was constantly maligned by conservatives, including those whom he genuinely liked. For nearly a half-century, he bore all of this abuse with quiet dignity and humor.

When you consider Senator Kennedy’s monumental legislative record of accomplishment in health, labor, human rights, economic reform, and education, there are few presidents who got as much done as he did. And he did all this while winning the respect and affection of his adversaries as much as his allies.

By comparison, some of the Founding Fathers were vicious hypocrites who thought nothing of defaming their colleagues with baseless accusations and whose fiery politics alienated even members of their own party. Jefferson, for example, as vice-president arranged for the publication of outrageous lies about President John Adams. Jefferson paid someone to steal the personal papers of Silas Deane, the hero of my book UNLIKELY ALLIES.  Jefferson tried to impeach federal judges who disagreed with him. Jefferson extolled the virtues of the bloody French Revolution, and so alienated the Federalists in Congress that his election in 1800 bitterly divided the young republic.

That’s not to say that Jefferson does not deserve his place as one of the authors of the Declaration of Independence and the founder of the University of Virginia. But a fair-minded person could conclude that the achievements of Jefferson, like other Founding Fathers, were won despite his mean partisanship. In contrast to Jefferson, Ted Kennedy time and again reached across the aisle to heal the divisions of party.

I met Senator Kennedy only in passing at two dramatic points in his astonishing career. The first time was when I was called to testify as a witness before the Senate Judiciary Committee to corroborate Anita Hill’s allegations against then-Judge Clarence Thomas. Though some liberals criticized Kennedy for not taking a stronger position against Judge Thomas, they forget Kennedy’s dramatic role in those hearings. At the time, of course, the Senator was facing allegations in the press concerning his own drinking and socializing. He felt constrained by those allegations to lead the attack. But after a panel of four witnesses, myself included, testified in support of Anita Hill’s allegations, Senator Kennedy responded in a booming voice to the defamatory attacks on Anita Hill:

“…I hope, Mr. Chairman, that after this panel we are not going to hear any more comments, unworthy, unsubstantiated comments, unjustified comments about Professor Hill and perjury…I hope we are not going to hear more about fantasy stories picked out of books…I hope we can clear this room of dirt and innuendo, that has been suggested [about] Professor Hill… They are unworthy.”

That was Kennedy at his best: decrying those who used smear tactics to advance a political agenda. Throughout his long career Kennedy stood to uphold the Senate’s tradition of decorum and comity.

I met Senator Kennedy again last year at a breakfast at the home of a friend. It was only days after Senator Kennedy’s dramatic endorsement of Senator Obama for president and only months before his brain tumor was discovered. Kennedy bounded up like a eager puppy to introduce himself to all the guests – as if there were anyone on the planet who would not recognize him. His hand seemed like it was the size of a catcher’s mitt, leathery from a lifetime of sailing and shaking hands. He was excited about the young senator from Illinois whose idealism and eloquence reminded him of his own brothers. And he was determined to help pass Obama’s health insurance reform.

Kennedy spent four decades persistently and patiently working towards health reform. Perhaps he could have succeeded this year with a broad consensus of Democratic and Republican colleagues. If he were unable to win broad support, Kennedy would have pushed for reform with the votes he had, and afterward, he would have embraced his Republican colleagues and defused any hard feelings.

Kennedy’s civility is an exceedingly rare element in the summer of “death panel” Republicans and “birther” conspiracy theorists. We have lost Senator Kennedy at the moment we needed him most to escape the toxic political environment that has engulfed health insurance reform.  We need more like him.

If you like reading this blog, check out my new book, UNLIKELY ALLIES.

Six years ago I was writing a book with that title on the history of international law in U.S. courts in the eighteenth and nineteenth centuries. The challenge was trying to make that book interesting to a wider audience.

I was looking for a vignette to open the book that would capture the improvisational quality of foreign policy at the time of the founding of the republic. The  Founding Fathers had to invent American diplomacy on a clean slate. That’s when I discovered the story of Silas Deane.

Silas Deane was one of the more obscure Founding Fathers. He owned a dry goods store in Wethersfield, Connecticut. He had never left Connecticut in his life. He knew nothing about diplomacy, and he couldn’t speak a word of French, but Ben Franklin decided to send Deane on a secret mission in 1775 to persuade Louis XVI to arm the Americans against the British. Franklin thought that Deane was so improbable the British spies would never suspect him.

I was puzzled as to how Deane succeeded in obtaining all of the arms, ammunition, uniforms, tents, boots, hats, and blankets for an army of 30,000 men without the benefit of any credentials or cash. So I looked for a good book about Deane, but there weren’t any.

In frustration I phoned a friend of mine, David Kahn, who was the executive director of the Connecticut Historical Society at the time. I thought David could tell me how to find Deane’s letters or diaries. Perhaps there was a website or a Library of Congress publication or some other service to help my research.

To my astonishment David replied, “we own Deane’s papers.” Just a few weeks earlier David by chance had run into Deane’s papers, which were in several boxes stored away in the basement of the Connecticut Historical Society. If he hadn’t known about Deane’s papers, I would never have found them on my own.

I flew to Hartford, where coincidentally the papers were kept in a building 1000 yards from where I used to teach at the University of Connecticut Law School. I opened these boxes for the first time since who knows when and discovered letters to or from Franklin, Louis XVI, Washington, Jay, Adams, and many other Founding Fathers. The tale that they told was an incredible story of courage, patriotism, betrayal, treason, corruption, and murder. I was hooked.

I wrote a new introduction to my book, “Pirates, Slaves and Indians,” and I showed it to my sister. She told me “forget about pirates, slaves and Indians and write this book.” So I did.

I hope you like it.

If you like reading this blog, check out my new book, UNLIKELY ALLIES.