Choo chew! (Peep Meat)

History has shown us that when being invaded, one party’s failure to cooperate seldom ends peacefully. Although in this instance World War Three won’t be the outcome, for some New Yorkers, it may feel like it: Shake Shack is not coming to Grand Central just yet.

A legal battle is looking certain as Grand Central Mexican restaurant Zócalo has refused to vacate its space in the terminal to make way for the new Shake Shack, according to Crain's. Last summer, word of the famous burger franchise’s intentions of moving into the landmark leaked out like a melting shake, but a year later there are still no shackstacks available in its marble corridors.

"Zócalo is desperately pursuing any possible means to remain in possession of space it no longer has the legal right to occupy, contrary to the legal rights of the MTA and Shake Shack," an MTA spokesman told Crain's. He noted that a civil court in a landlord-tenant proceeding already ruled that the Mexican eatery is in unlawful possession of the space, since its lease has expired.

In the current lawsuit, Mr. Shapiro, who also owns two Flex Mussels restaurants in the city, alleges that because Shake Shack is a chain that operates 14 locations, including outposts in Dubai and Kuwait City, it is ineligible for the spot under the request for proposals restrictions. The request limited bidders to chains with fewer than 10 operating locations, according to the suit.

Like in invasions of the past everybody loses. Owner Danny Meyer must wait to open his 6th Manhattan shack. A mediocre Mexican restaurant looks to be entering a legal battle it cannot win but most importantly it could well be another year before commuters will be able to get their hands on one of the coveted patties.

Problem From Hell": America and the Age of Genocide , by Samantha Power.

Basic Books, 610 pages, $30.

"The lesson of Auschwitz," according to a legendary Holocaust

intellectual speaking at a Los Angeles temple in the early 1990's, "is that you

can get away with it." A stunning remark.

Alas, when I checked it out, the legend in question denied saying

anything of the sort. Apocryphal quotes come into existence at moments when

something so badly needs to be said that someone puts the right words

pseudepigraphically in the best available mouth. The early 1990's-as news of

genocide in Rwanda arrived to interrupt news of genocide in the Balkans-was

just such moment. "Never again" had clearly yielded to "Again and again," but

who would dare speak this truth aloud?

This is the challenge that

Samantha Power has met in "A Problem From

Hell": America and the Age of Genocide . The central action of her

book-to be distinguished from its central

argument-is a quartet of late 20th-century genocides: Cambodia, Kurdistan,

Rwanda and the Balkans. A former Balkans war correspondent, Ms. Power shows

herself a more than competent second-order journalist in retelling these

stories. But by building them into a larger story shaped by a compelling

argument, she takes her book beyond journalism to something approaching

moral and political philosophy. Why and how

has the government of the world's most powerful

nation been repeatedly dissuaded from halting genocides in progress? Why and how, in the unique and perhaps historic Balkans case,

was it persuaded to intervene? As executive director of the Carr Center for Human Rights Policy at Harvard's Kennedy School of Government, Ms.

Power is professionally concerned with questions like these as matters of

practical politics. One of her few heroes is Senator William Proxmire, who gave

3,211 speeches on the floor of the Senate-one a day for 19 years-before finally

persuading Congress to ratify the United Nations genocide convention. But her

respect for the gritty reality of human-rights political activism leads her to

include a host of impressive lesser figures as well. Though Ms. Power tells

their stories en passant , the telling

constitutes a major work of original reportage.

Ms. Power sets this expanded American story within a still

larger, more than American story of the advance of international law. It is

here that her book achieves both its greatest intellectual depth and its most

powerful forward momentum. Genocide is a crime that can be committed typically,

if not quite always, with impunity so long as national sovereignty is regarded

as legally absolute. What the Khmer Rouge did to their fellow Cambodians they

did within Cambodia; what the Iraqi Arabs did to the Iraqi Kurds they did

within Iraq; what the Hutu did to the Tutsi they did within Rwanda; and what

the Serbs did to the Kosovar Albanians they did within the international

borders of Serbia. Under international law as it existed until the end of World

War II, the victims of "internal" crimes like these had had no legal recourse.

Today, some of them do have recourse-perhaps. The deepest question of Ms.

Power's book is whether and how legal recourse for those in peril of genocide

can be made more reliable and, above all, more timely.

Dictators of the 20th century drew the lesson of genocidal

impunity from the example of Turks killing Armenians. Ms. Power quotes Hitler:

"Who today still speaks of the massacre of the Armenians?" Hitler himself, of

course, was pointedly among the few who did. Another who did, however, was a

man who might well bear the awesome title of anti-Hitler-the true hero of Ms.

Power's book, Raphael Lemkin. A Polish Jew 10 years Hitler's junior, Lemkin

grew up under czarist rule in a region scarred by pogroms. From earliest

boyhood, he was obsessed with mass violence in the past as well as the present,

against Gentiles as well as Jews. Gifted in languages, Lemkin chose

international law over linguistics when, as a university student, he learned of

the Armenian genocide and immediately grasped-just as Hitler did-its enormous

implications for other imperiled ethnic groups. As early as 1933, he began to

lobby the League of Nations on behalf of a new international law-he had drafted

it himself-banning "the premeditated destruction of national, racial, religious

and social collectivities."

He got nowhere. Faulted as a

troublemaker for so foolishly provoking Germany, Lemkin failed to win over even

his own family, who regarded him as a Luftmensch

and a hysteric. Only four of more than 50 Lemkin relatives would survive the

war. In the last pages of her book, Ms. Power quotes Arthur Koestler on

"Screamers" who succeed in reaching listeners for a moment "only to watch them

shake themselves 'like puppies who have got their fur wet' and return to the

blissful place of ignorance and uninvolvement." Lemkin, who made it safely to

New York in 1939, remained a Screamer for genocide prevention down to the last

day of his life. It was he who coined the very word "genocide" in 1944, and he

who-as utterly obsessed with preventing this crime as Hitler had been with

perpetrating it-exhorted, mobilized, harassed, shamed and infested the newborn

United Nations until at last, in 1948, it adopted its Convention on the

Prevention and Punishment of the Crime of Genocide.

President Truman was in favor of immediate American ratification

of the convention, but conservative Republicans in the Senate were opposed, Ms.

Power says, and their influence would grow. In 1953, with the convention still

unratified and the influence of Senators Joseph McCarthy and John Bricker at high tide, Secretary of State John

Foster Dulles promised that the Eisenhower administration would never "become a

party to any covenant [on human rights] for consideration by the Senate."

Eisenhower withdrew the convention from consideration, and it sank into

oblivion until Proxmire revived it in 1967.

At this point, Ms. Power has

the stage set for her long march through the genocides. Briefly mentioned are

the Hausa against the Ibo in Nigeria (1968, one million dead), the West

Pakistanis against the Bengalis of East Pakistan (1971, between one million and

two million dead), and the Tutsi against the Hutu in Burundi (1972, between

100,000 and 150,000 dead). Then come successive, detailed dissections of

American policy in the later episodes already mentioned. The Carter

administration backed the Khmer Rouge (two million dead, in a population of

seven million) against its local rival because the Khmer Rouge were fighting

the Vietnamese and because the Chinese, whom the United States was courting,

considered the Khmer Rouge an ally. The Reagan and Bush administrations

declined to denounce Saddam Hussein's gassing campaign against the Kurds

(between 100,000 and 200,000 dead) because Saddam was fighting the Iran of the

Ayatollah Khomeini, who was thought at the time to be a far greater threat than

Saddam himself to American oil interests in the Middle East. The Bush and, at

first, Clinton administrations declined to oppose an international arms embargo

against Bosnia and Kosovo because Britain and France favored continued Serbian

domination within the former Yugoslavia. In every case, there was a raison d'état for countenancing

genocide-if only, as in the case of Rwanda (800,000 dead), the consideration

that intervention was costly, denunciation without intervention embarrassing,

and the United States without the proverbial classic dog in the fight.

Yet there was a glimmer of light. In 1986, the Reagan

administration abruptly lent its support to

American ratification of the U.N. genocide covenant as a way of

recovering from the fiasco of President Reagan's laying a wreath at a German

cemetery (Bitburg) where Nazis were buried. True, Republican opposition in the

Senate-initially stymied by Reagan's move-worked its will by adding conditions

that largely emasculated American ratification. Nonetheless, once the

ratification had come about, later policy makers like Warren Christopher,

Secretary of State in the Clinton administration, found it increasingly

necessary to avoid speaking the G-word lest they create even a prima facie case

for American intervention. "A problem from hell," one of several Christopher

circumlocutions, becomes Ms. Power's title and her emblem of shame-faced

diplomatic evasiveness.

Where there is shame, there is hope. Because national sovereignty

is no longer quite so absolute a value, the will to create war-crime tribunals

is clearly stronger than it once was. Moreover, American opponents of

preventive American intervention against genocide must now sweat and strain to

make intervention seem futile, counterproductive or perilous. The astute

summary in Ms. Power's preface of why and how you can usually count on the

United States to let you get away with genocide within your own borders is

slightly but crucially qualified in her conclusion: Usually is not the same as always .

Ten years ago, the hard men of Realpolitik

could not have imagined Slobodan Milosevic defeated, much less on trial. Back

then, the tough truth they had on offer was Get

over it, the Serbs have won . But the Serbs hadn't won; they didn't get away

with it. The hard men were mistaken, and the lesson of their mistake may be

that we are still learning what Auschwitz has to teach.

Jack

Miles, senior adviser to the president at the J. Paul Getty Trust, is the

author, most recently, of Christ: A Crisis in the Life of God (Knopf).

My ignorance of this California City prison is what came to mind as I read a recent exchange between Daniel Goldhagen and Andrew Sullivan in The New Republic . In the Jan. 21 issue, Mr. Goldhagen indicts Pope Pius XII and the Catholic Church as sympathizers with Nazi genocide. In the following issue, Mr. Sullivan faults Mr. Goldhagen for "regarding the Catholicism of the time as morally indistinguishable from the Nazi party." My reaction is more personal. If I myself had been a German Catholic in the early 1940's, I ask, what would I have troubled to learn about what was going on? California City is not a reassuring answer.

I have not been a Roman Catholic since I married outside the church in 1980, but ex-Jesuit is as indelible an identification as ex-convict . Though never ordained, I was a member of the Society of Jesus, the Jesuits, for 10 years (1960-70); and in my public life, such as it is, this fact seems to stick in everyone's mind far more reliably than, say, my 10 years with the Los Angeles Times or my Harvard doctorate or even my Pulitzer Prize. As a result, whatever I might wish, when I read an exchange like this one, I find it hard to hold myself mentally hors de combat .

In collective and summary terms, my position on the issue is that taken in "A Jewish Statement on Christians and Christianity," which was published first as a full-page advertisement in The New York Times and later included in Christianity in Jewish Terms , edited by Tikva Frymer-Kensky et al.: " Nazism was not a Christian phenomenon . Without the long history of Christian anti-Judaism and Christian violence against Jews, Nazi ideology could not have taken hold, nor could it have been carried out. Too many Christians participated in-or were sympathetic to-Nazi atrocities against Jews. Other Christians did not protest sufficiently against these atrocities. But Nazism itself was not an inevitable outcome of Christianity. If the Nazi extermination of the Jews had been fully successful, it would have turned its murderous rage more directly to Christians."

Nothing in Mr. Goldhagen's New Republic article requires any revision of this statement. But the statement does nothing to address the Lord Jim sort of question that an individual of my background might still put to himself. "What Would Jesus Have Done?" is the title of Mr. Goldhagen's article. I ask: What would Miles have done? Is the logic of Mr. Sullivan's faith and mine such that had we been living in Hitler's Germany, we would have been among Hitler's "willing executioners"?

Mr. Goldhagen seems rather to think so. The trouble is that when I try to be as tough with myself as prosecutors like him want me to be, the evidence that speaks loudest does not come from the Vatican archives or from my Catholic boyhood, but from my experience-more accurately, my avoidance-of American jails. In the mid-1990's, when I was still with the Los Angeles Times , my drive home often carried me past the intersection of Cesar Chavez Avenue and Vignes Street, just east of downtown Los Angeles. Passing that intersection, I observed the construction over a period of several months of a strange, huge building in the shape of a double hexagon set back at some distance from the street. Hurrying home, I did not trouble to stop for a closer look, but I did ask a number of my colleagues if they knew anything about it. None did. My own guess, since the structure appeared to be windowless, was that it was a power plant.

Finally, one day when I had quit early, I parked my car and walked close enough to find a construction sign announcing that the double hexagon was a gigantic addition to the central men's jail of Los Angeles County. It wasn't windowless after all. It contained tall, slit-like windows designed-as I later learned-to be slightly narrower than the narrowest recorded human skulls, which turn out to be those of the Vietnamese. Make the windows narrow enough, an architect explained to me, and even the most desperate prisoners cannot bash their heads through the glass.

My sluggish curiosity would have served the Nazis well, I have to imagine, but it seems to me to owe little if anything to my Catholic background. If I were to ask Jewish, Protestant, agnostic or atheist friends to name for me the location of the three prisons nearest their homes, I doubt that many could do so. Few would deny, I suspect, that American prisons are places of considerable peril for their inmates, irrespective of the gravity of the crime being punished. On the day (Feb. 16) when I began writing this reflection, The New York Times contained the following report: "Three [Florida] state prison guards were acquitted today on charges that they stomped an inmate to death in his cell to keep him from exposing brutality behind bars …. Mr. [Frank] Valdes had broken ribs and other fractures and internal injuries, and his upper body was covered with boot prints …. Defense lawyers had argued that some of Mr. Valdes's injuries were caused by his climbing the bars in his cell and throwing himself onto the floor and his bunk."

One could look further into this, but one is unlikely to. One knows that blacks as well as Hispanics like Valdes are incarcerated for offenses that would not lead to incarceration for oneself, but one has so much else on one's mind. Americans like me do not translate our casual awareness of the horrors of the American prison system into anything approaching an obligation to learn where our local prisons are, much less to inquire into what is being done to whom inside them. Good Germans we are, all of us.

Because no group except the Roma suffered a loss comparable to that suffered by the Jews in the Nazi shoah , and because the Jews of America feel the Jewish loss as their own, the shoah has been massively and movingly memorialized in the United States as well as exhaustively studied. In the larger American context, however, there is something odd-not objectionable, but odd-about the fact that a crime by Europeans against other Europeans has been so actively commemorated by Americans. There would be something comparably odd about a cavernous museum just off the Champs-Elysées commemorating, with brilliantly original architecture and in poignant documentary detail, the slaughter of the American Indians. What about Algeria? the American visitor would silently ask. What about Vichy? Take me, please, to your Vichy museum .

Consider the following thesis: The history of the United States until the Emancipation Proclamation can be summarized in the six words stolen land developed by stolen labor . The atrocity of the deliberate extirpation (Thomas Jefferson's word) of the North American indigenes conjoined to the introduction of African slaves to develop the "cleared" land is undeniably different from the Nazi shoah . Yet the American atrocity is our national shame. Will it ever be as fully memorialized in the heart of Washington, D.C., as Germany's shame has been at Washington's Holocaust Memorial Museum? I link this monumental omission to my bland indifference to the appearance of the super-jail at Cesar Chavez and Vignes. That structure, as I eventually learned, was designed to confine as many inmates as there are guests in two or three major downtown hotels combined. In the current vernacular, who knew? But who cared, once he found out?

Near the end of Mr. Goldhagen's indictment, nominally a review essay, he writes: "A major research project into the political, social, and cultural histories of each national Catholic Church's attitudes and actions toward the Jews-before and during the Nazi period-remains an essential prerequisite for fully evaluating the role of the Catholic Church, and for the Church itself to fully to [sic] evaluate its role, during the Holocaust." "Fully" one may easily concede; "adequately" is another matter. Historical analysis, like psychoanalysis, is in principle interminable. What matters most is that already published indictments of Pius XII and of the conduct of the Catholic Church during World War II should rest on adequate information, and they do. There is room, to be sure, on the library shelves for Mr. Goldhagen's forthcoming book, A Moral Reckoning: The Catholic Church During the Holocaust and Today . And yet Michael Phayer's scathing The Catholic Church and the Holocaust, 1930-1965 is not deficient in its documentation. There was room, similarly, for James Carroll's heartfelt and confessional Constantine's Sword . And yet Monsignor Edward Flannery's less confessional but more path-breaking The Anguish of the Jews: Twenty-Three Centuries of Anti-Semitism -published (with the imprimatur of Cardinal Spellman) as far back as 1965, updated in 1985, and still in print-employs a more than adequate documentary base to draw the same moral from the same terrible story.

The rather more pressing need, it would seem to me, even within shoah studies, is for a more thorough country-by-country inquiry not into the conduct of the Catholic Church in each country, but rather of each country's wartime political regime vis-à-vis the genocide in progress. Mr. Goldhagen rightly indicts Pius XII for not denouncing earlier and louder than he did the catastrophic 1944 transportation of the Jews of Hungary to Auschwitz. But read Martin Gilbert's Auschwitz and the Allies (1981): The plea at the time from Jewish leaders on the continent was not just for denunciations and warnings (from "leading Anglo-Saxon personalities, non-Jewish and Jewish" more than from the Pope), but also for Allied bombardment of the only rail line from Hungary to Auschwitz. The Allies could have managed that bombardment. Why didn't they? Examples of such indifference are sickeningly numerous. If John Paul II is required to apologize for Pius XII's sins of omission, may Tony Blair and George W. Bush not be made to apologize for the comparable sins of Winston Churchill and Franklin Roosevelt?

I do not mean to be facetious in speaking of apologies. Mr. Blair saw fit to offer an apology for the conduct of the United Kingdom during Ireland's Great Hunger, an atrocity a century older than the Nazi shoah . "Never apologize, never explain" is no longer the diplomat's proud motto. Nor do I mean, however, principally to harp on the inconsistent treatment of various wartime offenders against the Jews of Europe. The more troubling inconsistency, it seems to me, is that between American volubility about German or Euro-Catholic sins on the one hand, and American silence about American sins on the other. I applaud the efforts that have been made to hold the Vatican, on secular grounds, to a high ethical standard, and to show how official Catholic prejudice against the Jews softened up the residually Catholic parts of Europe for the Nazi "Final Solution." I look forward to the further opening of the relevant Vatican archives, as of any other now closed archives that bear on this historic atrocity.

But Germany remains an easy target in America, and the Vatican is the easiest of targets almost everywhere. "What would Jesus have done" when the Cherokee were being driven west on the Trail of Tears, or when the Bantu were being loaded into the hold for the Middle Passage? Should the United States pay reparations to the victims' descendants as Germany has paid reparations to Israel, calculating the purchase price (and compounding the interest) that should have been paid to the Cherokee for Georgia and the wages that should have been paid to the blacks for two centuries and more of unpaid labor? Try asking that at a dinner party and see how warm a welcome you receive from your fellow taxpayers. These are questions that make the American gorge rise, but like them or not, these are American questions, and-like the question about the morality of the gigantic and half-hidden American penal system-they are the ones we most need to ask.

Jack Miles, senior adviser to the president of the J. Paul Getty Trust, is the author of Christ: A Crisis in the Life of God (Knopf) .