Jeffrey Toobin Profiles 'The Nine' Inside the Robes

DATE September 19, 2007 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Author Jeffrey Toobin discusses book "The Nine:
Inside the Secret World of the Supreme Court"

TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

With the moderating centrist voice of Sandra Day O'Connor gone from the
Supreme Court, a conservative counterrevolution that had been stymied for 20
years has now begun: So says Jeffrey Toobin in his new book "The Nine:
Inside the Secret World of the Supreme Court." His book is about how this
counterrevolution developed. It's also a behind-the-scenes look at the court,
its recent decisions, and the personalities of the justices behind them. "The
Nine" is based on interviews with justices and their law clerks that were
given on a not-for-attribution basis. Toobin is senior legal analyst for CNN
and a staff writer for The New Yorker. One chapter of his new book revisits
the decision Bush v. Gore, which he wrote about in a best-selling book. In
that decision, the Supreme Court stopped the Florida recount in the contested
2000 presidential election and allowed the Florida certification of Bush's
victory to stand. This put Bush over the top in electoral votes, making him
president. In Toobin's new book, he comes up with some new revealing stories
about that decision.

Isn't this the decision that Supreme Court justices are most uncomfortable
talking about?

Mr. JEFFREY TOOBIN: I think they all know that in the second paragraph of
their obituaries will be how they voted in Bush v. Gore. That defined them.
And what particularly bothered them about the case is that it was so nakedly
political. The justices have a conception of themselves that is separate from
politics. I mean, they are realistic. They are practical people. But they
also try to portray themselves, even to themselves, as apart from politics.
And this was so political and so sort of grotesquely partisan that that's what
really makes them uncomfortable about it.

GROSS: Now you write a lot about Sandra Day O'Connor throughout your book.
She figures, of course, prominently in the Bush v. Gore chapter. You say
that she had her mind made up about Bush v. Gore. She thought George W.
Bush should win the case as well as the election. Why?

Mr. TOOBIN: Well, Sandra O'Connor is a Republican and proudly so. She was
the majority leader of the Arizona senate. She identifies with Republicans.
She particularly liked the elder President Bush and his wife, Barbara. Those
were her kind of Republicans. And on election night, she and her husband were
unusually open about their hope for President Bush to win the election. Once
the case got into the Supreme Court, the complaints of the Democrats were
exactly the kind of thing that O'Connor hated. She thought that the case was
about voters who had made mistakes, who were incompetent, who were complaining
and making excuses. Just the kind of thing that O'Connor, the old ranch hand
from Arizona, just didn't like to hear. So the combination of her
predilection for the Bush family and the kind of complaints the Democrats were
making really turned O'Connor off, and I believe that the Democrats never
really had a chance to get her vote in this case.

GROSS: But you think that she later regretted her decision and that she
became disillusioned about the Republican Party and the presidency of George
W. Bush.

Mr. TOOBIN: See, this is what I really learned in writing my book. This is
the surprise to me, is the effect the decision had on O'Connor because the
reaction to Bush v. Gore was so extreme and so angry that it really
challenged O'Connor's perception of herself as someone who was fair and
nonpartisan and someone who was a Supreme Court justice, universally
respected, and she was really taken aback by that. You combine that reaction
with what George Bush's presidency turned out to be, something very different
from what O'Connor thought it would be: a very conservative presidency. She
did not like John Ashcroft, who was President Bush's first attorney general.
Justice O'Connor is not an evangelical Christian right Republican. She is an
old school country club Republican. And as the new President Bush became more
and more conservative, especially when it came to civil liberties after 9/11,
O'Connor rebelled, in part because she was worried about her historical
reputation in light of Bush v. Gore, and in part because she simply did not
like the direction the Bush administration was going?

GROSS: What's a decision in which you think her opinion was a rebellion
against President Bush?

Mr. TOOBIN: Well, I think the Guantanamo Bay cases were a direct repudiation
of President Bush. I mean, there's this extraordinary moment in the court
where the argument of the first Guantanamo Bay cases takes place in 2003, in
the spring, and Justice Ginsburg asks a question. And she says, in the oral
argument to Paul Clement, who was then the deputy solicitor general, you know,
`What if the president decided to authorize torture, I mean, do you think he
could do that?' And Paul Clement gets rather indignant and says, `Well, our
president would never do such a thing.' That very night, the night of the oral
argument in the Guantanamo Bay cases, is the night that "60 Minutes II"
broadcast the Abu Ghraib prisoner abuse story for the first time. And that's
when the court really rebels against the Bush administration, and it's
O'Connor who really lectures the Bush administration in her opinion in that
case, where she says, you know, `In times of national crises, that's when we
have to stand strongest for civil liberties.' And she cites the Korematsu
case, one of the darkest moments in the history of the Supreme Court, which
approved the exclusion of the Japanese from the West Coast during World War
II. And she essentially saw the Bush administration as repeating those sorts
of mistakes. And that case was an extraordinary public rebuke of the Bush
administration and the court was led by, its ever-present swing justice,
O'Connor.

GROSS: My guest is Jeffrey Toobin and we're talking about his new book, "The
Nine: Inside the Secret World of the Supreme Court."

Now let's get back to Bush v. Gore. You write a little bit about Justice
Kennedy's equal protection argument in that case and why Ruth Bader Ginsburg
was so outraged by it. Would you describe his equal protection argument and
why Ginsburg was so outraged?

Mr. TOOBIN: Well what's interesting about, you know, reconstructing Bush v.
Gore is that even though the Supreme Court was only involved in 21 of the 36
days of the fight after the election of 2000. A lot happened. There were two
different Supreme Court arguments and decisions, and the Bush team basically,
almost as a throwaway in the beginning of the legal fight, said, `Well, it's a
violation of Bush's rights under the equal protection clause that the votes
will be counted one way in one county and one way in another county.' Now this
argument was almost laughable in the beginning because this Supreme Court, the
more conservative Rehnquist court, had been contracting the equal protection
clause, had been narrowing the rights that could be asserted, usually by
racial minorities. And the idea that George Bush could be a victim of equal
protection seemed almost preposterous, even to the Bush lawyers themselves.
But Anthony Kennedy in the oral argument of Bush v. Gore embraced it and
wound up writing that part of the decision saying that Bush's rights had been
discriminated against.

Now, Ruth Bader Ginsburg had devoted her career to the equal protection
clause. She had been the leading lawyer for women who'd been aggrieved by
gender discrimination. She knew the equal protection clause better than any
of the other justices on the court. And the idea that George W. Bush would
be the beneficiary of this clause that was being narrowed for women, for
blacks, made her enraged. But Kennedy had the votes and that's the decision.

What almost made it worse for the dissenters was perhaps the most notorious
sentence in Bush v. Gore, because at the last minute the majority worried
about creating all sorts of new rights and new lawsuits and elections, so
Kennedy added a sentence in his opinion that said, `Our decision is limited to
the present circumstances.' In other words, the only beneficiary of this
principle was George W. Bush. `We're not going to give this right to anyone
else. We're just going to give it to Bush.' Which was a complete repudiation
of what courts, based on precedents, are supposed to do. But, you know, when
you've got the votes, you've got the votes, and that's how the election ended.

GROSS: Now you write that David Souter seriously considered resigning after
Bush v. Gore. How come?

Mr. TOOBIN: See, this was the biggest surprise to me in writing "The Nine,"
because Souter is such a peculiar and unique figure on the court because he's
so different from the others. I mean, as most people know, he's the only
bachelor justice. He's never been married. He lives this very ascetic
lifestyle. He eats an apple and a cup of yogurt for lunch every day. When he
arrived at the court, he'd never heard of this drink that some of the other
justices drink called Diet Coke. He just leads this very ascetic life. But
he takes the court very seriously and, you know, he believes that judges
should be divorced from politics, and he has really been divorced from
politics for a long time. He saw Bush v. Gore as such a repudiation of the
role of the judge. He thought the majority was so nakedly political and,
frankly, he didn't like living in Washington much anyway--and he still
doesn't--that he seriously considered resigning. And you know, he almost did.

Yet, one of the even more oddities of his story is one reason why he didn't
resign is because of the "Rule of 80." The rule of 80 says you get to resign
with a full pension, full salary, as a federal judge, if the years of your
service plus your age equal 80. Like 65 years old plus 15 years on the bench.
He wasn't eligible for his full retirement until 2004. So he's such a frugal
New Englander that--you know what?--hanging around for the pension seemed like
a--retiring at full salary seemed like a good idea, too. So, you know, on
such--for such reasons, large decisions are made.

GROSS: One of the things you certainly couldn't possibly have known in 2002,
when you wrote your book on Bush v. Gore and the Florida recount, was that
one of the lawyers in involved with the Republicans for the Florida recount
would later become the chief justice of the Supreme Court, John Roberts. So
tell us a little bit, have you learned more about his role in the Florida
recount?

Mr. TOOBIN: I did. And John Roberts has led a completely charmed life, and
you know, he was known as a Republican lawyer. He was deputy solicitor
general under Ken Starr in the first Bush administration, but he never really
spoke out much publicly. And like a lot of the top Republican lawyers in
Washington, he pitched in in the recount and he played a very important but
behind-the-scenes role.

He went down to Tallahassee after the first Florida Supreme Court decision,
which Gore's side won. And one of the debates that the Republicans were
having was, `Should we even apply for cert, you know, go ask the Supreme Court
to hear this case?' Because this was basically a state issue. It was an
interpretation of Florida law, Florida constitution. Will the justices want
this cased? And John Roberts, sitting around the conference room in
Tallahassee, said to his colleagues, `Go for cert. The justices will take
this case. This is too important for them to say no.' And unlike many of his
colleagues, Roberts was right. The justices did take the case.

Now the interesting historical question is, `Well, why didn't Roberts stay
with it? Well, Roberts actually had to go back to Washington because he had a
Supreme Court argument in a completely separate case. So that was his only
contribution, but it was a significant one, because not everyone agreed with
him. but he was right.

GROSS: Did you think it was at all inappropriate to appoint a Supreme Court
justice who had helped give the president his victory?

Mr. TOOBIN: Not really. You know, I mean, that was a--he was a lawyer
helping with a client. Ted Olson was obviously the main lawyer...

GROSS: Mm-hmm.

Mr. TOOBIN: ...and he was appointed solicitor general. George Bush has been
very good for rewarding the people who were with him from the beginning, and I
don't really think that there's anything inappropriate about that.

GROSS: My guest is Jeffrey Toobin, senior legal analyst for CNN and a staff
writer for The New Yorker. His new book is called "The Nine: Inside the
Secret World of the Supreme Court."

More after a break. This is FRESH AIR.

(Announcements)

GROSS: If you're just joining us, my guest is Jeffrey Toobin. He's legal
correspondent for CNN. He writes for The New Yorker, and now he has a new
book called "The Nine: Inside the Secret World of the Supreme Court."

Now, as I said before, you write a lot about Sandra Day O'Connor and about her
style as the swing vote in the Rehnquist court. How would you describe that
style?

Mr. TOOBIN: O'Connor's style was more political than legal, and her
political instincts were unerring for the center of American public opinion.
She supported the right to choose abortion, but with restrictions like
parental consent laws. She supported affirmative action, but with strict
limits on quotas and the degree of affirmative action. She had this unerring
sense that was not necessarily dictated by the Constitution and it drove
Antonin Scalia crazy that O'Connor came to these compromise positions outside
any larger judicial framework, but one reason why O'Connor was so successful
as a justice is that she was able to occupy that center ground and control the
outcome of important decision after important decision.

GROSS: And one decision that she controlled in some ways was the challenge to
the Pennsylvania state law limiting a woman's right to abortion, and the law
was challenged in the Supreme Court. What did she add to that decision?

Mr. TOOBIN: Well, this is where, you know, historical ironies are so great,
because there was one part of the Pennsylvania law that really offended her,
and this was relatively early in her career. This case was from 1992. And
Pennsylvania passed a law that restricted abortion in various ways, but the
one part that really got under O'Connor's skin was married women who sought
abortions had to inform their husbands first before they got an abortion, and
if there's one thing O'Connor couldn't stand it was paternalism towards women.
And that part of the law had been supported by one judge on the three-judge
panel on the 3rd Circuit. Now who was that one judge? Young Samuel Alito,
who had just been appointed to the 3rd Circuit, and O'Connor was horrified by
that part of the decision. So when Justice Souter, Justice Kennedy, and
Justice O'Connor got together to write their opinion in the Casey decision,
which would support a woman's right to choose, O'Connor took the part, just
tearing apart Alito's argument and saying it was paternalism, it was
outrageous and it was unfair. And that is really one of her most significant
moments as a justice. And who, of course, becomes her replacement but Samuel
Alito.

GROSS: What does she have to say about that?

Mr. TOOBIN: Well, in public, Justice O'Connor is a very politic person, but
the story of her last years on the bench is really an extraordinary personal
and political tragedy because O'Connor became so alienated from the Bush
administration about the war on terror, about the war in Iraq, about extremism
in all sorts of areas that she really grew to detest President Bush. But she
had a personal tragedy. Her husband had Alzheimer's disease, and O'Connor
believed that she had to leave the court to take care of her husband. And
even though she was 75 years old and in perfect health and at the peak of her
powers, she said, `I'm not outsourcing this. I'm going to leave. So it meant
giving her seat to the president she had come to disdain. And not only that,
who winds up taking her place but Samuel Alito, the judge that she had almost
defined her career by repudiating, which was bad enough. But the worst of all
is that after the extended time it took for her to leave the bench, because,
if you recall, first John Roberts was nominated for her seat, then Rehnquist
died, then it was the Harriet Miers fiasco, and then it was finally Samuel
Alito. During that period, her husband's health deteriorated to such a point
that he was really beyond her help. So here she is: she's given up her seat
on the court, she's turned it over to a president and a justice that she
doesn't like, all to help a husband who is now beyond her help. I mean, it's
really a tragic story.

GROSS: Do you think that if she knew that that would be the outcome that she
would have stayed on the court?

Mr. TOOBIN: One of the things about Justice O'Connor is she's not big on
looking back and she's not big on regrets. One thing you'll never get
O'Connor to say, including about Bush v. Gore, is, `I was wrong.' And she's
not going to say, `I was wrong to leave the court,' and I certainly never
heard her say it in public or any other place, but in her heart, my guess is
she does regret a lot of this.

GROSS: When you say that Sandra Day O'Connor came to detest the Bush
presidency, is that based on conversations with her?

Mr. TOOBIN: You know, I haven't talked about what the basis of my reporting
is, but you're just going to have to trust me on it.

GROSS: Jeffrey Toobin is senior legal analyst for CNN and staff writer for
The New Yorker. His new book about the Supreme Court is called "The Nine."
He'll be back in the second half of the show.

I'm Terry Gross and this is FRESH AIR.

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GROSS: This is FRESH AIR.

I'm Terry Gross back with Jeffrey Toobin, author of the new book "The Nine:
Inside the Secret World of the Supreme Court." It's based on interviews with
the justices and their law clerks. Toobin is senior legal analyst for CNN and
a staff writer for The New Yorker. Part of his book is about the new balance
of power in the Supreme Court and what he describes as the conservative
counterrevolution.

For a long time Sandra Day O'Connor was the swing vote on the court and now
it's Justice Kennedy. How do they compare as swing votes?

Mr. TOOBIN: They're very different. Justice O'Connor was very practical,
very narrow in her decisions. Justice Kennedy is a very expansive person,
given to flights of rhetoric that O'Connor never would. He also has a very
romantic conception of the judge. One of the many peculiarities about Justice
Kennedy is that in some respects he appeared like a very provincial man. When
he was nominated to the Supreme Court, in 1987, he still lived in the house in
Sacramento where he grew up. But he had this tremendous wanderlust at the
same time, and the touchstone of his career as a justice has been traveling
around the world, talking to other justices and talking about the guild of
judges. And he's been very influenced by foreign judges on certain issues,
like the death penalty, like gay rights, where he has moved significantly to
the left. But on most issues he remains the
Republican...(unintelligible)...protege that he was in California. And he is
a more conservative justice than O'Connor was, and the fact that so many
decisions are now in his hands as opposed to O'Connor's hands, as we saw in
the term that ended in June, this is a much more conservative court than it
was just two years ago.

GROSS: Well, let's compare Kennedy's role in the latest abortion decision.
Sandra Day O'Connor supported the right to have an abortion although she also
supported certain restrictions on it. In the latest abortion decision,
Kennedy wrote an opinion that said, "While we find no reliable data to measure
the phenomenon, it seems unexceptionable to conclude some women come to regret
their choice to abort the infant life they once created and sustained." Would
you discuss that line and its importance in the latest abortion decision?

Mr. TOOBIN: It's just a a remarkable transformation. In 2000, the Supreme
Court examined a late-term partial birth abortion law, whatever term you want
to use, from Nebraska. And by a five-to-four vote, with O'Connor in the
majority, they rejected the law: they said it was a violation of a woman's
right to choose. Seven years later, Congress, in almost total defiance of the
court, says, `We're going to pass virtually the same law, but because Alito
and Roberts are now on the court and O'Connor's gone, that decision is, in
effect, overruled. And Kennedy writes this opinion with this extraordinarily
paternalistic statement that, `Well, you know, the reason we're banning these
late-term abortions is that you silly women come to regret it anyway.' And
this is exactly the kind of thing that drove O'Connor crazy, but it is part of
Kennedy's conception of himself as sort of a wise lawgiver, that he will pat
women on the head and say, `Look, you know, this is really for your own good
and you'll come to appreciate it in the long-term.'

GROSS: How would you describe the balance of power in the Supreme Court now?

Mr. TOOBIN: John Roberts is in charge. This is his court. Roberts is
emerging as one of the most strongly ideological and brilliant justices who's
been on the court in many years. You know, his opinions are beautifully
written, strongly argued and very, very conservative. The idea that he was
some sort of closet moderate, the idea that he's going to change on the bench,
the idea that he is somehow not exactly what he appears to be is folly. This
is a very conservative chief justice and he is using his powers to make the
court different from what it was before.

GROSS: Give us an example of an opinion of his from the past term that you
consider ideological.

Mr. TOOBIN: There was really an extraordinary drama on the last day of the
term, because the court handed down several opinions and in each one of them,
the court really showed how different it was. On an antitrust case, Roberts
led the court in overturning a precedent from 1896 that was arguably in favor
of consumers over corporations. He wrote his now most famous opinion as a
justice in overturning the efforts of the Louisville and Seattle school
districts to use race to preserve some racial balance in schools. And in a
death penalty case, he voted, in that case with the minority, to uphold a
death sentence where there was a real strong issue about the mental status of
the defendant. In all of those cases, not only did he take the conservative
position, but he was walking the court back. He was changing the court's
precedence to move the court to the right.

GROSS: Now you described Clarence Thomas as the most conservative member of
the Rehnquist court. Is he still the most conservative member of the court?

Mr. TOOBIN: Clarence Thomas is not just the most conservative member of the
Rehnquist court or the Roberts court. He's the most conservative justice to
serve on the court since the 1930s. If you take what Thomas says seriously,
if you read his opinions, particularly about issues like the scope of the
federal government, he basically thinks that the entire work of the New Deal
is unconstitutional. He really believes in a conception of the federal
government that hasn't been supported by the justices since Franklin Roosevelt
made his appointments to the court. You know, I went to a speech that Justice
Scalia gave at a synagogue here in New York a couple of years ago, and someone
asked him, `What's the difference between your judicial philosophy and Justice
Thomas?' I thought a very good question. And Scalia talked for a while and he
said, `Look, I'm a conservative. I'm a texturalist. I'm an originalist. But
I'm not a nut.' And I thought that...

GROSS: Meaning that he thinks Thomas is one.

Mr. TOOBIN: Well, that was certainly the implication.

GROSS: Mm-hmm.

Mr. TOOBIN: It was pretty amazing. I mean, Thomas is well outside the
mainstream, even of the conservatives on the court.

GROSS: If you're just joining us, my guest is Jeffrey Toobin. He's a legal
correspondent for CNN. He writes about legal issues for The New Yorker, and
his new book is called "The Nine: Inside the Secret World of the Supreme
Court."

What decisions are you looking to come out of the court in the next term?

Mr. TOOBIN: I think the biggest is going to be about the Second Amendment.
There's a case coming out of Washington, DC, an ordinance about gun control.
And the DC Circuit, for the first time in a major court, ruled that the Second
Amendment, which speaks of the right to bear arms, essentially bans gun
control. And that case is almost certainly going to the court this year, and
I think that's going to be an example of the court using its power to limit
liberal government and to say, `We interpret the Second Amendment as banning
gun control.' And I think that's going to be a huge decision this year.

Also the next Guantanamo cases will probably be up there, an opportunity to
expand executive power. It's probably not going to be as dramatic a term as
the last one, with the abortion case and the school desegregation case, but
the agenda items will be ticked off.

GROSS: Do you expect any other justices to retire during the Bush presidency?

Mr. TOOBIN: None voluntarily. The three most likely retirees are all on the
liberal side of the court. John Paul Stevens is 87 years old. Ruth Bader
Ginsburg is in her mid-to-late--76, I believe. David Souter is 69 years old
but doesn't like the job and doesn't like Washington. All three of them are
likely to leave soon, but none of them want to turn their seat over to George
W. Bush, but the fact that the three of them are likely to leave in the next
few years just underlines the stakes of the 2008 presidential election.

GROSS: And Stevens at the age of 87, I mean, that's a real wild card.

Mr. TOOBIN: It's a real wild card, but his brother, Bill Stevens, is still
practicing law at the age of 90 in Florida. So who knows? And, you know, if
you look at Justice Stevens, you talk to Justice Stevens, the guy is in
remarkable health, he's at the top of his game, he's an active participant in
oral argument. You know, I don't know if he's eating yogurt or what, but the
guy he plays tennis, he plays golf. He's got good genes.

GROSS: Well, Jeffrey, it's great to talk with you again. Thank you very
much.

Mr. TOOBIN: My pleasure, Terry.

GROSS: Jeffrey Toobin is senior legal analyst for CNN and a staff writer for
The New Yorker. His new book about the Supreme Court is called "The Nine."
You can read an excerpt of the book on our Web site, freshair.npr.org, or you
can also download podcasts of our interview.

Coming up, a New York Times reporter held hostage in a Chinese toy factory
while investigating toys made with lead paint.

This is FRESH AIR.

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Interview: New York Times reporter David Barboza on experiences
in China

TERRY GROSS, host:

Here's a New York Times headline that caught our eye a few weeks ago: "My
Time as an Hostage and I'm a Business Reporter." Well, that business reporter
is my guest David Barboza. He covers China for the Times. He was visiting a
Chinese factory complex, trying to interview the manufacturer of a toy that
had been recalled because of lead paint. But instead of getting the
interview, he was accused of being a spy and was held hostage for nine hours
along with a photographer and translator. Barboza has been covering stories
relating to the tainted goods that have been exported from China, including
toxic toys and pet food. He's also contributing to The Times ongoing series
called "China: Choking on Growth." I spoke with him during his current visit
to the US. Barboza says one of the many reasons he was surprised to be held
hostage is that he'd become used to being treated like a dignitary when he
visited Chinese factories.

Mr. DAVID BARBOZA: I think that's just generally the culture in China that
when foreigners come for interviews, and many of the times I was treated as a
dignitary, these are state-owned companies. And state-owned companies kind of
operate a little like the state, so it's as if I'm going in and meeting Hu
Jintao or, you know, the president or the prime minister. They sit you in
this big room and they bring out tea and there's a lot of welcoming remarks,
and it's a long time before you actually get to an interview. That's a lot
more welcoming than someone going and writing about political matters and
business. The Chinese want to do business with Americans, with Europeans, and
so they want to welcome the foreign media who's writing about business. It
was very easy for me to get a visa, a journalist visa in China, and I think
that's one of the reasons.

GROSS: So what were you investigating when you were held hostage in the toy
factory?

Mr. BARBOZA: I had gotten a call a day before asking if I would go to a toy
factory in southern China, in Dongguan, I believe it was. And I was supposed
to be investigating where the lead paint came from in a toy recall case that
had happened that week. There was a very popular toy called Thomas & Friends
toy railway sets, and I have to admit that I had not even heard of this--I
don't have children yet--but my editors had heard about this and it was a
major recall.

The factories--you have to know that factories in China are all sort of
guarded compounds. They are, you know, they house dormitories for the
workers. They house, you know, lots of factory places, maybe a shop. And
they have these iron gates that electronically slide closed, and so it's not
easy to get into the factory grounds. But for some reason, at this factory,
all 50 of their security guards were asleep the night we showed up. We showed
up, I believe, on a Sunday night, after 8:00. It took us that long to
actually find the factor. And when he drove up to it, we were stopped by one
of the guards and they asked what we were doing, and we said, `We're from The
New York Times and we're here to look at the factory.' And they said, `Fine,
just fill out this form and come on in.' And so we drove in.

I had myself, a translator, and a photographer, and we went into this big open
area where lots of workers were milling around, and this is really like a
college campus. I mean, a lot of these factories have people who are
generally age 18 to 24, mostly women, and it looks like a college campus.

So we drove into the basketball court, started interviewing people on the
basketball court. You know, there were lots of security guards around, and we
luckily found some of the people that worked in paint supply after about five
minutes in this factory complex, so it was sort of very fortunate that we were
able to get in so easily and interview people. And we weren't violating any
rules because we had signed in and we were actually out in the open. We were
photographing and interviewing people and we were a little surprised that no
one stopped us but, you know, we kept going.

GROSS: So did you find out anything about the use of lead paint in this
factory before you were accused of being a spy?

Mr. BARBOZA: At the end of those interviews, we only knew where the painting
was taking place in that big complex, and we knew what the workers made, how
much they earned, how long the hours were. We got a good sense of the
factory, but we didn't, you know, solve our main question, which was, `Is lead
paint being intentionally applied to these toys.'

GROSS: OK. So you left the factory on Sunday. It was the following day that
the security guards decided to detain you. What happened on Monday that made
them suspicious of you when you returned?

Mr. BARBOZA: I think when we started taking photographs and trying to
interview workers, they got very suspicious and the managers really didn't
know what was going on. And so they called one of the factory bosses in and
set us up in a room for about an hour, and what I realized afterwards was that
they were trying to figure out what to do with us. And when we decided we had
been in that room for too long and that we were leaving, they then, the
manager or the boss of this factory, actually arrived and talked to us and
actually gave us a hard time for coming onto the factory grounds and said that
we had broken the law by entering the factory. And I said no, we had signed
in. And he decided that he was going to take us to his little villa and have
a discussion with us, and then he was going to give us a tour of this factory.
But, in fact, he was detaining us and he would detain us for the next nine
hours because he believed we had broken into his factory, we had done things
illegally by taking photographs of his workplace, and I think he was
determined to get those photographs and to figure out whether we were actually
spies.

GROSS: How did you get out?

Mr. BARBOZA: Well, we negotiated for hours, and if you've been to China you
know that negotiation is everything. There's negotiation over buying things
on the streets, on getting a taxi. And we had to negotiate with government
officials who were called in. And, in fact, we called the police and the
government in to try to rescue us from the factory because the factory claimed
it was calling the police and the government, but it wasn't. And so when the
government officials eventually came, following the police officials, they
also had to negotiated with this factory to get our release. And it was only
after three or four hours of negotiation, where I conceded that I would write
one sentence, that they agreed to sort of let us go.

GROSS: What was the sentence?

Mr. BARBOZA: The sentence was something like, `I agree that it is not true
that this factory asked me to come and visit them and take photographs.'
Something to that effect. That basically they did not know we were going to
be visiting the factory and talking photographs.

GROSS: And that's true. They didn't know.

Mr. BARBOZA: They didn't. They didn't. So I felt that it was fine for me
to do that. And if that's all it would take for me to get out of here after
six or seven hours, I was willing to write that sentence. But I was also very
nervous about what I would write down and whether I would start writing
because pretty soon, maybe, they would request that I write other things.
And, in fact, they did.

GROSS: And?

Mr. BARBOZA: And I was so frustrated I just said to them, `Look. I am being
held hostage. I am not writing anything. This is not a torture session. I
wrote the sentence that you wanted. I am not writing anything any longer.'

GROSS: And they let you go?

Mr. BARBOZA: They didn't. They debated it. They faxed this letter to some
other factory bosses who were out of town, and then after more and more
negotiation they agreed to send us to the police station to write a written
statement of what happened that day. And then, after writing that statement
at something like 1 or 2 in the morning, after The New York Times editors
called me and I told them that we were going to complain to the US embassy,
then they started to believe that they had to let us go and they released us
that night.

GROSS: In this whole experience, what did you learn about the power structure
in China and the relationship of the factory bosses to the government to the
police?

Mr. BARBOZA: You know, while this was taking place, I really didn't think of
this in any terms of a story. I thought, this is just one of the hassles that
takes place in China as you're trying to pursue a story, but later on I
realized that this is really a window into the power structure in China. That
when the police arrived at that factory, they had absolutely no power. And
they talked to the factory bosses about letting us go, and the factory bosses
said no. And then another line of police came and they were told no, and they
listened to both sides and they had nothing to do. And then when the
government came, the government couldn't release us from that factory. It was
only after hours of negotiation and compromise that we could get out.

So I think I realized that something I'd been seeing all along in China for
the last couple of years is that the government really doesn't have total
control over local officials and factory officials. That there is a very
complex set of negotiations that needs to take place and a hierarchy to the
regional areas and the factory areas, and I had to understand that. And that
was at the heart of this situation, that the government and whoever's interest
was in place there, had to find a way to negotiate it.

GROSS: My guest is David Barboza. He covers business and culture in China
for The New York Times.

More after a break. This is FRESH AIR.

(Announcements)

GROSS: My guest is David Barboza and he's The New York Times Shanghai
business and cultural correspondent. He's in the United States on a brief
visit.

So let's look at some of the larger problems in China now in terms of the
manufacturing. As you write, China accounts for 95 percent of all the toy
recalls so far this year, and many of those recalls are because of lead paint?

Mr. BARBOZA: Mm-hmm.

GROSS: And, you know, you've very recently written about lead paint
problems...

Mr. BARBOZA: Mm-hmm.

GROSS: ....in China. Why is there so much lead paint in China? I mean, do
the people behind it know what kind of problems, you know, how toxic lead
paint is?

Mr. BARBOZA: I think in some cases they know and in some cases they don't
know. But to understand that story, you have to understand that China is
growing at a blistering pace, and everyone is setting up factories and making
deals. And also many of these factories are trying to come in with low costs
so that they can please the big corporations of America or Europe, the big
retailers. And often those American and European companies go to these
factories and say, `We will make a deal with you to buy so many products next
year, but you have to cut prices. This is what we want to see you come in
at.' And so in this big scramble to set up the factories, to meet the
requirements, to please the retailers, to lower the costs, a lot of factory
owners are cutting corners. They don't always know the consequences of
cutting these corners, but it's rampant through China. This is really not a
new story. There's counterfeiting all across China and there's cutting of
corners and putting in ingredients that aren't supposed to be there.

GROSS: Let's get to the pet food recalls. There was a substance called
melamine that was in a lot of the pet food. Like what is that substance and
what's your understanding of why it had been in so much of the pet food that
was exported?

Mr. BARBOZA: Right. Well, melamine is a little like urea. And going way
back in the United States actually, agricultural farmers used to occasionally
put urea in some of these high-protein sort of ingredients into their food
supply to sort of boost the protein count. And I don't know how they came up
with melamine. I mean, melamine actually comes originally from coal in China,
and it's an industrial chemical, but someone in China realized that melamine
was very much like urea and people didn't test for it and it did the same
thing that urea had done in the United States in the 1920s and '30s. It would
send the protein count higher, and so in other words, you would think that
you're getting high-protein corn or high-protein meal, but actually they would
put in very low-protein corn or meal, but it would seem, because of the small
bit of melamine, to be very strong in protein. And so when someone figured
this out, they started putting it in pet food ingredients.

GROSS: And do you think the people behind that knew how toxic the melamine
could be?

Mr. BARBOZA: I don't. Basically I think the companies using melamine didn't
realize that melamine, when it mixes with other like chemicals, can create a
sort of toxic potion, and that's only what scientists found out later. So
then they did this mixture, maybe by accident, they created something that was
really potent. And when that got into the pet food, that created the problem.

GROSS: How does this affect you as a consumer when you're in the United
States buying cheap products that you know are manufactured in China?

Mr. BARBOZA: Well, I'm actually trying not to buy many of those cheap
products. I mean, not really that intentionally that I'm trying to send a
message, but I just think that, you know, you have to think twice about some
of these goods. If you visit many factories, you'll just see how big the
production is. It's sort of like when I've got to, you know, slaughter houses
and I have to think twice about eating pork. I mean, it's just an amazing
thing to see how much material is coming through the factor, how much chemical
waste there is in these factories, the toxic fumes, the conditions. So you
kind of almost feel after you've visited a lot of these factories that maybe
you don't want to consume so much. Maybe there's too much consumption going
on in the world. And maybe people are demanding prices that are too low, that
they cannot comply with the laws in China.

And one of the thoughts that I have in visiting these factories is, you know,
nothing is free. And if you're not paying on this side of the ocean, someone
is paying in China. If they're not complying with environmental regulations
or labor regulations, they're eventually going to pay, as far as health costs,
in environmental costs and other things. So I think visiting factories or
visiting China makes you think differently about being a consumer.

GROSS: David Barboza, thank you so much for talking with us.

Mr. BARBOZA: Sure, glad to be with you.

GROSS: David Barboza writes about business and culture in China for The New
York Times and is contributing to the Times series about China "Choking on
Growth."

(Credits)

GROSS: I'm Terry Gross.

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