US budget plan for UN criticized

Betsy Pisik in the Washington Times has this story on criticism of the US budget plan for the UN, here, Wednesday, November 30, 2005.

My take on the aftermath of the UN reform summit back in September is that very, very little has actually happened. The UN General Assembly seems almost certain not to complete any of the goals it set in the final action plan to be completed by year end, and there is no good reason to think they will be accomplished ever. Ambassador Bolton seems to be trying to pressure the situation by pressing for an interim short term budget of three months, in order to ensure that the longer term budget for the remainder of the two year budget cycle will actually reflect some measure of UN reform. Japan has backed the US in this, but they are set against the usual group of non-aligned countries plus various Europeans. As Ambassador Bolton says in this article, if the two year budget is passed, it reduces greatly any pressure to engage in UN reform during that period - only the threat of not having a budget, only the threat of running out of money has any chance of getting any actual reform.

The point is that the parties of reform at the UN are very few. The Secretariat, so far as I can tell, simply saw it as a way of saving Kofi Annan and high UN officials from getting ousted over the oil for food scandal. Now that they see that it has blown over, from the threat of ouster standpoint, there's no desire at the Secretariat for reform. The Secretary General maybe sees some ability to salvage his reputation by making reform the centerpiece of his last two years in office. But it now looks rather more that he has concluded that, given the fact that no one cares about reform outside the US and a handful of other countries such as Japan, and given the fact that the oil for food scandal is largely seen as the mean ol' US pulling the plug on a form of corruption and patronage that is seen as normal and part of the UN's patrimony and gift, well, his reputation outside the US is perfectly secure.

So reform is on the agenda only insofar as the US (along with Japan, at this point in history) wants to force it there, against the wishes of the rest of the world, whose missions, representatives and, often, whole countries, want to keep their grubby paws working the til. Ambassador Bolton of course knows all this and more - presumably he, in his persistent, hard headed way, is simply looking to use US leverage to get some level of managerial reform. Good luck to him.

Excerpts from the Washington Times story:

***
U.S. budget plan for U.N. criticized

By Betsy Pisik
THE WASHINGTON TIMES
November 30, 2005

NEW YORK -- A senior U.N. administrator warned yesterday evening that a U.S. proposal to pass an interim three-month budget while delegates continue to debate reform could have a disastrous effect on the United Nations.

The Bush administration has refused to pass the proposed $3.6 billion biennial budget unless it includes a variety of administrative and management reforms to make the organization more efficient and effective.

To avoid a budget crisis, U.S. officials have suggested passing a sort of continuing resolution, which is common in Washington and other capitals but unprecedented at the United Nations.

"We do not want to be in a position where we adopt a budget next month and we get no more reform for the two-year life of the budget," U.S. Ambassador John R. Bolton told reporters on Monday.

But U.N. Comptroller Warren Sach said the interim budget would leave the organization in a cash crunch, forcing it to borrow from closed peacekeeping missions and dwindling management accounts.

"The secretariat considers this a serious problem in terms of cash flow," Mr. Sach said. He said the organization requires between $450 million and $500 million for the period of January through March 2006, but that member states traditionally pay only 38 percent of their assessed dues so early in the year, leaving a shortfall of up to $350 million.

Because roughly 75 percent of the U.N. budget goes to payroll and related fixed expenses, he indicated that staff might be asked to accept late payment or partial salaries during the interim period. The organization would also be forced to defer or delay paying its bills.

Mr. Sach acknowledged to reporters that "the perception of member states is that this is part of a negotiating scheme" by the United States. However, he said that he had already begun to make contingency plans.

Secretariat officials and many member states, including Britain, say that the budget should be passed now, and reforms can be paid for with supplemental budget requests. The new budget pits the United States and Japan -- which pay a combined 40 percent of the U.N. regular operating budget -- against a loosely affiliated bloc of developing nations.

Major donors say enacting the reforms is a necessary step to revitalizing the organization. The developing nations say that many of the measures transfer too much power from member states to the U.N. secretary-general.

Specifically, the proposed changes would give the secretary-general more discretion to allocate posts and funding between programs. Many of the suggestions under consideration were first proposed more than a year ago by Secretary-General Kofi Annan.

Many members of the 132-nation Group of 77 fear that this secretary-general would transfer resources from development programs to security and human rights. They have suggested in recent weeks that Mr. Annan is playing into Washington's agenda to remake the organization.

"I made it quite clear that there's no attempt at power grab," Mr. Annan told reporters last week.

Steve Wasserman on the decline of the LA Times

This is off the topic of international politics and law, but in an earlier post discussing book reviews, I mentioned my old friend Steve Wasserman, the former editor of the LA Times book review and now the managing director of the NY office of Kneerim and Williams at Fish and Richardson, a literary agency. Steve gave me a call tonight - it was fabulous to be in touch again and catch up on many things - and mentioned this piece on the decline of the Los Angeles Times in the hands of the Chicago Tribune Company. It's a sad, sad story. The book review under Steve was an exciting place - but it could never survive under the current moronic suits, and Steve is doing well in his new position and well out of the LAT.
Among the many things Steve is right about in that article is his assessment of what print newspapers and reporters and editors and newsrooms are good for, and what blogs and all that are good for. Leaving aside certain publications that have simply migrated to the web while keeping their traditional journalistic structure intact, what web journalism is about is mostly opinion. Like this blog. Despite the increasing amount of information and data available raw on the web for research and investigation, there's still no substitute for shoe leather, interviews, investigation that cannot be done online. Citizen journalists sometimes produce genuinely new information, but 99% is comment on what someone else has done. There are big exceptions - the military blogs from Iraq and Afghanistan, for example - but most of the rest of us comment. It's the nonweb investigatory journalism that represents traditional media's competitive advantage - access, rolodex, the ability to get to sources that the rest of us can't get to. Yet so much MSM seems entranced by the idea of being pundits, migrating from the news pages to the op-ed page. The prestige seems to be there; some sense of working with ideas, not merely facts. Bad idea. It might better be thought of as trading in journalism for being merely a blogger. There's no competitive advantage there - indeed, journalists should not even assume that, being journalists, they even write so much better than other professionals who take to the web. The quality of writing in the serious blogs can be surprisingly high. The competitive advantage of professional journalists lies in what they can do with a serious block of time offline. It's what they can bring to the table that isn't already part of the (in some respects) curiously closed information circle of the web. Steve makes the point slightly differently, and better, than I do here, and the whole piece is really worth reading.

White phosphorous

Bottom line as a law of war matter on white posphorous:

White phosphorous is not a chemical weapon and does not fall under the prohibitions of the Chemical Weapons Convention. Nor is it a substance prohibited under the 1925 Geneva Protocol. It is not prohibited by III Protocol of the Convention on Certain Conventional Weapons (and in any case the United States is not a party to the III Protocol). It is not prohibited by any treaty to which the United States is a state party.

Nor is white phosphorous prohibited as a weapon by customary international law of war.

Deliberately targeting civilians with it is prohibited, as is indiscriminate use which does not attempt to distinguish between civilian and military targets - but this is true of all weapons, bullets included; there is nothing special in that about white phosphorous or anything else.

I have been struck by the general lack of attention to the subject by the serious human rights/law of war monitors. Perhaps I have missed something, but I don't see anything on the Human Rights Watch website on the issue - one might have thought that it ought to offer its view on whether the Italian state television report was credible, given the enormity of the charges - one might have thought that it should have investigated the credibility of the factual reporting as well as opining on the actual state of the law. Its silence is not helpful on charges as strong as these, made in an important media venue. Amnesty International is much less expert or credible than HRW in laws of war matters, but one might have thought that merely the appearance of evenhandedness would urge it to investigate and correct, as necessary, factual and legal aspects of a story so momentous. But I, at least, can't find anything on its website about it. (If there is something on either website about this that I can't find, I'll be happy to stand corrected.)

The deeply honorable exception to this tendency, among groups generally aligned with the human rights movement, has been Anthony Dworkin at the the Crimes of War Project. His article on the white phosphorous controversy is measured, accurately researched, and straightforward about the law, including areas where the law is unsettled. I do not always agree with the legal analysis presented at Crimes of War.org - unsurprising, since there is plenty of room for disagreement and interpretation within this field. But I believe Anthony Dworkin sets the standard in this article for a balanced, transparent, and sober discussion of controversial charges. The article is here. It should be widely circulated and read by anyone following this story.

Text of article (Anthony, hope I'm not violating your copyright!):

***

November 17, 2005
The Use of White Phosphorus in Fallujah: Was it Against the Law?
By Anthony Dworkin

The Pentagon has admitted that U.S. forces used white phosphorus as an offensive weapon during their attack on the Iraqi city of Fallujah in November 2004, reversing earlier claims by the U.S. government that phosphorus had only been used sparingly for illumination purposes. The acknowledgement follows the discovery and circulation on the internet of accounts by U.S. soldiers in which they describe the use of white phosphorus munitions against enemy positions.
The apparent reversal of the U.S. government has given added impetus to criticism of the American use of white phosphorus. A central point of contention is whether the use of shells containing white phosphorus against enemy fighters -- or their use in areas where civilians may be affected -- should be seen as an unlawful use of chemical weapons. Much discussion of the white phosphorus issue -- whether from ill-informed U.S. spokesmen or internet commentary -- has been confusing. This article will attempt to describe the different provisions of the laws of war that are relevant and sketch out the ways in which they might apply.

The latest charges against the U.S. army spring from a documentary broadcast by the Italian TV station Rai24 last week. The documentary entitled Fallujah: The Hidden Massacre which contained allegations that U.S. forces used massive amounts of white phosphorus in a way that caused large numbers of civilian deaths. The documentary includes an interview with one soldier, Jeff Englehart, who says he served in Fallujah and knows that white phosphorus was used there. Englehart describes white phosphorus as "without a shadow of a doubt" a chemical weapon.

Since the documentary was released there have been numerous articles in the international press and on the internet. One of the most prominent pieces was by George Monbiot in The Guardian on November 15. Under the headline "The US used chemical weapons in Iraq -- and then lied about it," Monbiot claims that white phosphorus "becomes a chemical weapon as soon as it is used directly against people."

There is no question that white phosphorus shells were used to target locations in Fallujah where insurgent fighters were believed to be hiding. An account by US soldiers in the army journal Field Artillery published in March 2005 describes their use in detail: "WP proved to be an effective and versatile munition. We used it for [smoke]screening missions at two breeches and, later in the fight, as a potent psychological weapon aginst the insurgents in trench lines and spider holes when we could not get effects on them with HE [high explosive]. We fired 'shake and bake' missions at the insurgents, using WP to flush them out and HE to take them out."
Another report that has been widely quoted over the last few days was written by a journalist from the North County Times embedded with marines during earlier fighting in Fallujah. He describes marines sending a mixture of burning white phosphorus and high explosives into buildings where insurgents have been sighted.

This week Pentagon spokesman Lt. Col. Barry Venable said that "U.S. forces used white phosphorus both in its classic screening mechanism and...when they encountered insurgents who were in foxholes and other covered positions who they could not dislodge in any other way."
The fact that the United States has had to take back earlier claims about the use of white phosphorus has been a public relations disaster. However that does not mean that the use of these weapons was illegal. In fact, most of the arguments made to support the idea that the use of white phosphorus munitions was a violation of the law are highly questionable.

White phosphorus munitions have been a regular part of the arsenal of contemporary military forces, including those of the United States and United Kingdom. They have not been regarded as chemical weapons but (at least when used against enemy positions) as incendiary weapons, which work by spreading fire.

Although white phosphorus has never been classed as a chemical weapon, some recent commentary has suggested that it should be regarded as a chemical weapon when used directly against enemy fighters. This argument is based on the fact that the Chemica Weapons Convention which came into effect in 1997 bans the use of any weapon that is designed to cause death or other harm through the toxic properties of a chemical that "through its chemical action on life processes can cause death, temporary incapacitation or permanent harm."

Although white phosphorus is a chemical compound, its primary effect on victims appears to be through the generation of heat (white phosphorus burns fiercely from contact with air and can continue to burn even when embedded in flesh). The smoke produced by white phosphorus does not seem to cause significant harm through chemical action on immediate exposure (although scientific studies have shown that longer exposure, while not lethal, may cause medical problems). For these reasons, the effects of white phosphorus weapons -- while undeniably unpleasant -- do not appear to bring it within the scope of laws governing chemical weapons.

Incendiary weapons like white phosphorus are governed by another treaty -- the 1980 Protocol III to the Convention on Conventional Weapons. This defines incendiary weapons as primarily designed "to set fire to objects or to cause burn injury to persons through the action of flame, heat or a combination thereof, produced by a chemical reaction of a substance delivered on the target." (The fact that heat or flame is produced by a chemical reaction does not make them chemical weapons, since it is not a case of a substance that causes death or injury by chemical action on the victim's "life processes")

Tthe United States is not a party to the Incendiary Weapons Protocol -- but in any case, the treaty adds little to existing law, except a blanket restriction on dropping incendiary weapons from the air against military objectives "located within a concentration of civilians" (as was done in the fire-bombing of German cities like Dresden in World War II). Since the weapons used in Fallujah were shells, not bombs, this provision would not in any case be relevant.

The tests that should therefore be applied to the U.S. use of white phosphorus munitions are the standard rules provided in the laws of war for the use of any weapon. First, it is always unlawful to use force directly against civilians, or to carry out an attack where the expected level of harm to civilians is excessive in proportion to the military advantage expected. Secondly, it is forbidden to use weapons that cause "superfluous injury or unnecessary suffering." That would probably cover the use of white phosphorus in some weapons -- e.g. anti-personnel bullets -- but the United States could plausibly argue that the use of white phosphorus munitions to flush insurgents out of hiding places is militarily justifiable and therefore not unlawful.

The recent British Manual of Military Law says that white phosphorus may be used "to set fire to targets such as fuel or ammunition dumps" or "to create smoke," but that it "should not be used directly against personnel." Using white phosphorus munitions against locations in which personnel are hiding falls between these two cases. If it is lawful to use WP in such cases, the army that wishes to use it must be able to meet a high threshold of demonstrating that no other less destructive weapon could have been used instead.

There is every reason to believe that U.S. forces will continue to employ white phosphorus as part of their arsenal in urban warfare. Although the weapon is undeniably unpleasant, it is unlikely to be given up entirely. Those concerned with promoting the humane standards enshrined in the laws of war would be better off questioning whether its use in particular circumstances meets legal rules on discrimination, proportionality and humanity -- rather than making implausible claims that it can never be used against enemy positions.

Related chapters from Crimes of War: What the Public Should Know:
Weapons

Related Links:

La Strage Nacosta (The Hidden Massacre)
Rai 24 News
(Contains links to video of the documentary in Italian, English and Arabic)

Did the United States Use "Illegal" Weapons in Fallujah?
U.S. Department of State
January 27, 2005

Text of Bush administration Iraq strategy paper

For reference, here is the pdf text of the Bush administration Iraq strategy. Here is the text of Bush's Tuesday, November 29, 2005 Annapolis speech on Iraq. Nancy Pelosi's response, here. Thanks to RCP.

Claudia Rosett on the UN Volker archives

Claudia Rosett - a journalist who in a fairer world would have many journalism prizes - expresses concern, here, in the Wall Street Journal, Wednesday, November 30, that the archives of the Volker oil for food investigation might be destroyed by the UN, thus depriving future researchers and investigators of vital information. Excerpts:

***
Don't Shred on Me
The U.N. must not be allowed to destroy the Volcker investigation's archives.

BY CLAUDIA ROSETT

Wednesday, November 30, 2005 12:01 a.m.
Wall Street Journal

Paul Volcker's findings on Oil for Food have been widely received as the final word on the United Nations relief program for Saddam Hussein's Iraq. Far from it--as Mr. Volcker himself has admitted. In reporting that Saddam, along with his smuggling and oil graft, diverted $1.8 billion in kickbacks from U.N.-approved relief contracts under the program, Mr. Volcker underestimates, quite probably by billions, the amount the U.N. allowed Saddam Hussein and many of his favored business partners to graft out of Oil for Food deals for goods such as oil parts, milk, laundry soap and baby food. In low-balling the total, Mr. Volcker understates the negligence of the U.N., and overlooks some of the most potentially virulent links in Oil for Food.

The most urgent implication of Mr. Volcker's incomplete findings is that his huge and expensively assembled archives must be preserved intact well beyond the Dec. 31 deadline by which Mr. Volcker now plans to start disposing of them. Above all, they must not be handed back to the U.N., where too much related to the corrupt Oil for Food program has already vanished--including, to a fascinating extent, Secretary-General Kofi Annan's own powers of recollection. The former head of the program, Benon Sevan, alleged to have taken bribes from Saddam, was allowed to skip town, U.N. pension in hand. Mr. Annan is even now resurrecting, via a new $4 million U.N. program called the Alliance of Civilizations, the career of his former chief of staff, Iqbal Riza, who officially retired earlier this year after it came to light that during Mr. Volcker's investigation Mr. Riza had overseen the shredding of three years' worth of documents that might have better illuminated the oil-for-fraud shenanigans of the U.N.'s executive 38th floor.

As it happens, Rep. Henry Hyde, who has led the main investigation into Oil for Food in the House, introduced a bill on Nov. 17 urging that the U.S. withhold $100 million from its U.N. dues for each of the next four fiscal years, or until the secretary of state certifies to Congress that the Volcker investigation's archives have been transferred, intact and uncensored by the U.N., "to an entity other than the [Volcker] Committee or the United Nations"--and made available for public inspection, at the very least by law-enforcement authorities.

If $100 million a year seems a punitive sum, it pales next to the billions in suspect money that Mr. Volcker left out of the grand totals in his final report. And that's even if we set aside for now the staggering $19 billion in Oil for Food revenues which the U.N. doled out under its usual secrecy via the U.N. Compensation Commission to victims of Saddam's 1990 invasion of Kuwait. These compensation payments were, for the U.N., a huge chunk of the program, which Mr. Volcker promised to cover and somehow never got around to--though U.N. internal audits suggest it was riddled with waste and abuse.

More immediately, let us turn to the $39 billion or so in U.N.-approved payments by Saddam to his chosen Oil for Food relief suppliers. When Sen. Norm Coleman's investigators last year estimated the amounts scammed by Saddam out of this relief money, they came up with a total of some $7 billion--almost four times larger than what Mr. Volcker reports. Why the big difference? Saddam used a variety of scams, and Mr. Coleman's investigators took into account most of them, while Mr. Volcker focused on only two--illicit transportation fees, and the $1.8 billion in standardized kickbacks to Saddam--which he was able to measure fairly precisely. Basically, if Mr. Volcker could not attach precise numbers to a graft scheme, he did not try to measure it at all--even if the amounts involved almost certainly totaled billions. Notably, after puzzling over one of the biggest flows of suspect relief money, Mr. Volcker concluded in a comment buried on page 299 of his 623-page Oct. 27 final report that "this matter likely warrants further investigation and review."

That note comes at the end of a section describing Saddam's tendency to overpay for many relief supplies, thus providing fat profits to favored suppliers. In some cases--or, as Mr. Volcker reports, in virtually all cases for the last half of the seven-year program, meaning from 2000 until the 2003 overthrow of Saddam--the supplier would kick back about 10% of the contract price to Saddam. Those kickbacks Mr. Volcker duly totals, to produce his estimate of $1.8 billion grafted out of the relief contracts. But in some cases, as a Pentagon audit study reported in 2003, and further evidence from both congressional investigations and Mr. Volcker himself has since corroborated, the routine kickbacks to Saddam's regime did not account for the full amounts overpaid to the suppliers. In other words, vendors of baby food, or detergent, or milk, even after paying a kickback to Saddam, would in some cases still end up with extra loot on their hands. Asked about this at an Oct. 27 press conference, Mr. Volcker speculated this sort of thing was perhaps "just a reward" for the "favored" contractors. OK. But what were they being rewarded for?

As the program got bigger, and the U.N.-approved range and scope of suppliers grew, so the overpricing grew too--as Mr. Volcker's own team illustrated in a chart (click here to see it), from the Sept. 7 penultimate report on Oil for Food, which shows the growing spread between market price and Saddam's purchase price for three sample commodities (which Mr. Volcker for some reason does not name). A post-Saddam Pentagon audit in 2003 of the prices paid on a sampling of Oil for Food contracts found similar spreads. Such overpayments are as a rule a bright red flag for graft in the form of payoffs. But instead of explaining that, or trying to estimate the scale, Mr. Volcker puzzled over it briefly in his last two reports, speculating that perhaps Saddam had to pay a growing premium to soothe suppliers "uncomfortable with their continued obligation to pay kickbacks."

The real mystery is why this was all so mystifying to a veteran money man like former Fed chairman Paul Volcker. In every other aspect of Oil for Food, from Saddam's bribery attempts before the program even began, to the shrink-wrapped cash that surfaced in liberated Iraq, there is every sign that Saddam's regime levered every penny it could out of the program. And every sign that in choosing contractors Saddam picked a great many who had something to offer his regime beyond arm's-length market deals on groceries. The official aim of the U.N. program, of course, was to limit Saddam's use of oil money to the purchase of fairly priced goods for relief. But the way the U.N. actually ran the program allowed Saddam not only to skim money earmarked for aid, but to launder it via relief suppliers worldwide, for any use to which a supplier might agree.

Another odd oversight in the Volcker report is the glaring lack of follow-up on suppliers--especially ones that were, according to Mr. Volcker, based in places such as Cuba and Afghanistan--that, as far as Mr. Volcker could determine, paid no kickbacks. That could mean they were just companies so honest, selling goods so desirable, that in these cases Saddam simply forsook his crooked ways. Or it could mean Saddam for more worrisome reasons was so eager to transfer money to these companies that he did not even bother to demand a kickback. These companies include U.S. suppliers of food and equipment, a drug manufacturer in Cuba; and a company listed by Mr. Volcker as operating out of both the United Arab Emirates and Afghanistan, some of that during the years in which Osama bin Laden, courtesy of the Taliban, was resident there, planning the Sept. 11 attacks on the U.S.

The likeliest explanation of Saddam's growing zest to overpay for relief, and his apparent benevolence toward select companies in places not generally famed for their shopping centers, is that both these tendencies offered Saddam ways to transfer purloined relief money to suppliers who were in a position not only to sell him rice, soap and medicine, but to do sanctions-busting favors for Saddam--such as procure illicit goods, forward money to secret bank accounts, or send it onward to people whom Saddam wished to support. Arms dealers and terrorist groups come to mind. All that would have been possible, under cover of these U.N. contracts, no less. Saddam's suppliers under the U.N. program included companies based in or linked to such financial havens as Liechtenstein and Switzerland; such arms-trafficking hubs as Russia, China and Belarus; and such trouble spots as Syria, Sudan, Saudi Arabia, Yemen and--as Mr. Volcker notes in passing--Cuba and Afghanistan.

To sort out the innocent from the not-so, far more information is needed than the U.N., or Mr. Volcker, has so far disclosed--including which specific contracts were most clearly overpriced, and whether anyone actually inspected the medicine ordered up by Saddam from Cuba--or, to take another example, the yogurt from Liechtenstein. But far from making available the full documentation on the thousands of U.N.-approved Oil for Food relief deals, Mr. Volcker's reports, apart from providing a few case studies, do not even try to break out even the most egregious overpricing by company, or even country. Perhaps it was simply too much work, even for Mr. Volcker's well-equipped inquiry, funded with $35 million in leftover Oil for Food money, and employing 75 investigators from 27 countries for 18 months.

But in that case, before the U.N. revs up its shredders, there are others more attuned to such matters as arms-trafficking and terror-funding, or for that matter, payoffs forwarded via U.N.-approved baby-food contracts, who need a chance to sift through Mr. Volcker's document trove.

(Ms. Rosett is a journalist-in-residence with the Foundation for the Defense of Democracies. Her column appears here and in The Wall Street Journal Europe on alternate Wednesdays.)

Joe Lieberman on Iraq

Just in case the New York Times doesn't see fit to run this as front page commentary, here is Joe Lieberman, writing in the Wall Street Journal, here, Tuesday, November 29, 2005, on the war in Iraq. Excerpts:

***
Our Troops Must Stay

By JOE LIEBERMAN
November 29, 2005; Page A18
Wall Street Journal

I have just returned from my fourth trip to Iraq in the past 17 months and can report real progress there. More work needs to be done, of course, but the Iraqi people are in reach of a watershed transformation from the primitive, killing tyranny of Saddam to modern, self-governing, self-securing nationhood -- unless the great American military that has given them and us this unexpected opportunity is prematurely withdrawn.

Progress is visible and practical. In the Kurdish North, there is continuing security and growing prosperity. The primarily Shiite South remains largely free of terrorism, receives much more electric power and other public services than it did under Saddam, and is experiencing greater economic activity. The Sunni triangle, geographically defined by Baghdad to the east, Tikrit to the north and Ramadi to the west, is where most of the terrorist enemy attacks occur. And yet here, too, there is progress.

There are many more cars on the streets, satellite television dishes on the roofs, and literally millions more cell phones in Iraqi hands than before. All of that says the Iraqi economy is growing. And Sunni candidates are actively campaigning for seats in the National Assembly. People are working their way toward a functioning society and economy in the midst of a very brutal, inhumane, sustained terrorist war against the civilian population and the Iraqi and American military there to protect it.

It is a war between 27 million and 10,000; 27 million Iraqis who want to live lives of freedom, opportunity and prosperity and roughly 10,000 terrorists who are either Saddam revanchists, Iraqi Islamic extremists or al Qaeda foreign fighters who know their wretched causes will be set back if Iraq becomes free and modern. The terrorists are intent on stopping this by instigating a civil war to produce the chaos that will allow Iraq to replace Afghanistan as the base for their fanatical war-making. We are fighting on the side of the 27 million because the outcome of this war is critically important to the security and freedom of America. If the terrorists win, they will be emboldened to strike us directly again and to further undermine the growing stability and progress in the Middle East, which has long been a major American national and economic security priority.

* * *
Before going to Iraq last week, I visited Israel and the Palestinian Authority. Israel has been the only genuine democracy in the region, but it is now getting some welcome company from the Iraqis and Palestinians who are in the midst of robust national legislative election campaigns, the Lebanese who have risen up in proud self-determination after the Hariri assassination to eject their Syrian occupiers (the Syrian- and Iranian-backed Hezbollah militias should be next), and the Kuwaitis, Egyptians and Saudis who have taken steps to open up their governments more broadly to their people. In my meeting with the thoughtful prime minister of Iraq, Ibrahim al-Jaafari, he declared with justifiable pride that his country now has the most open, democratic political system in the Arab world. He is right.

In the face of terrorist threats and escalating violence, eight million Iraqis voted for their interim national government in January, almost 10 million participated in the referendum on their new constitution in October, and even more than that are expected to vote in the elections for a full-term government on Dec. 15. Every time the 27 million Iraqis have been given the chance since Saddam was overthrown, they have voted for self-government and hope over the violence and hatred the 10,000 terrorists offer them. Most encouraging has been the behavior of the Sunni community, which, when disappointed by the proposed constitution, registered to vote and went to the polls instead of taking up arms and going to the streets. Last week, I was thrilled to see a vigorous political campaign, and a large number of independent television stations and newspapers covering it.

None of these remarkable changes would have happened without the coalition forces led by the U.S. And, I am convinced, almost all of the progress in Iraq and throughout the Middle East will be lost if those forces are withdrawn faster than the Iraqi military is capable of securing the country.

The leaders of Iraq's duly elected government understand this, and they asked me for reassurance about America's commitment. The question is whether the American people and enough of their representatives in Congress from both parties understand this. I am disappointed by Democrats who are more focused on how President Bush took America into the war in Iraq almost three years ago, and by Republicans who are more worried about whether the war will bring them down in next November's elections, than they are concerned about how we continue the progress in Iraq in the months and years ahead.

Here is an ironic finding I brought back from Iraq. While U.S. public opinion polls show serious declines in support for the war and increasing pessimism about how it will end, polls conducted by Iraqis for Iraqi universities show increasing optimism. Two-thirds say they are better off than they were under Saddam, and a resounding 82% are confident their lives in Iraq will be better a year from now than they are today. What a colossal mistake it would be for America's bipartisan political leadership to choose this moment in history to lose its will and, in the famous phrase, to seize defeat from the jaws of the coming victory.

The leaders of America's military and diplomatic forces in Iraq, Gen. George Casey and Ambassador Zal Khalilzad, have a clear and compelling vision of our mission there. It is to create the environment in which Iraqi democracy, security and prosperity can take hold and the Iraqis themselves can defend their political progress against those 10,000 terrorists who would take it from them.

* * *
Does America have a good plan for doing this, a strategy for victory in Iraq? Yes we do. And it is important to make it clear to the American people that the plan has not remained stubbornly still but has changed over the years. Mistakes, some of them big, were made after Saddam was removed, and no one who supports the war should hesitate to admit that; but we have learned from those mistakes and, in characteristic American fashion, from what has worked and not worked on the ground. The administration's recent use of the banner "clear, hold and build" accurately describes the strategy as I saw it being implemented last week.

We are now embedding a core of coalition forces in every Iraqi fighting unit, which makes each unit more effective and acts as a multiplier of our forces. Progress in "clearing" and "holding" is being made. The Sixth Infantry Division of the Iraqi Security Forces now controls and polices more than one-third of Baghdad on its own. Coalition and Iraqi forces have together cleared the previously terrorist-controlled cities of Fallujah, Mosul and Tal Afar, and most of the border with Syria. Those areas are now being "held" secure by the Iraqi military themselves. Iraqi and coalition forces are jointly carrying out a mission to clear Ramadi, now the most dangerous city in Al-Anbar province at the west end of the Sunni Triangle.

Nationwide, American military leaders estimate that about one-third of the approximately 100,000 members of the Iraqi military are able to "lead the fight" themselves with logistical support from the U.S., and that that number should double by next year. If that happens, American military forces could begin a drawdown in numbers proportional to the increasing self-sufficiency of the Iraqi forces in 2006. If all goes well, I believe we can have a much smaller American military presence there by the end of 2006 or in 2007, but it is also likely that our presence will need to be significant in Iraq or nearby for years to come.

The economic reconstruction of Iraq has gone slower than it should have, and too much money has been wasted or stolen. Ambassador Khalilzad is now implementing reform that has worked in Afghanistan -- Provincial Reconstruction Teams, composed of American economic and political experts, working in partnership in each of Iraq's 18 provinces with its elected leadership, civil service and the private sector. That is the "build" part of the "clear, hold and build" strategy, and so is the work American and international teams are doing to professionalize national and provincial governmental agencies in Iraq.

These are new ideas that are working and changing the reality on the ground, which is undoubtedly why the Iraqi people are optimistic about their future -- and why the American people should be, too.

* * *
I cannot say enough about the U.S. Army and Marines who are carrying most of the fight for us in Iraq. They are courageous, smart, effective, innovative, very honorable and very proud. After a Thanksgiving meal with a great group of Marines at Camp Fallujah in western Iraq, I asked their commander whether the morale of his troops had been hurt by the growing public dissent in America over the war in Iraq. His answer was insightful, instructive and inspirational: "I would guess that if the opposition and division at home go on a lot longer and get a lot deeper it might have some effect, but, Senator, my Marines are motivated by their devotion to each other and the cause, not by political debates."

Thank you, General. That is a powerful, needed message for the rest of America and its political leadership at this critical moment in our nation's history. Semper Fi.

(Mr. Lieberman is a Democratic senator from Connecticut.)

URL for this article:http://online.wsj.com/article/SB113323207590108762.html

John Bolton's performance at the UN

Frederick Kempe, "The U.N.'s Bolton Moment," Wall Street Journal, Tuesday, November 29, 2005, here.

***

THINKING GLOBAL
By FREDERICK KEMPE

The U.N.'s Bolton Moment

Wall Street Journal
November 29, 2005

What has confounded John Bolton's abundant detractors, both American and foreign, is how little he has lived up to their caricature of him as the fire-breathing, unilateralist, neo-conservative pit bull during his first four months as U.S. ambassador to the United Nations.
"He's an intelligent person," says Ambassador Munir Akram of Pakistan, a Bolton opponent on any number of issues, most critically now over U.N. management reform. "He's articulate, and he's a tough negotiator. As far as I'm concerned, he's quite okay."

Mr. Akram then pays Mr. Bolton the greatest compliment possible from within the ranks of diplomats deeply suspicious of his motives for wanting the U.N, job in the first place. "I have no reason to believe he's here to destroy the institution," the Pakistani envoy says. "I can work with him."

U.S. envoy John Bolton

That said, Mr. Akram and others remain far from viewing Mr. Bolton as their salvation, though that well may be what he represents. His appointment to the U.N. was the rough equivalent of Richard Nixon's visit to China, as he is determined to provoke needed change and has the hard-line credentials to sell skeptical congressmen on any agreed-upon reforms.

Senior U.N. officials "expect me to be … the U.N. ambassador to the U.S. and that isn't going to happen," Mr. Bolton says, in an interview. Yet he recognizes that he is the man most trusted by congressmen who have drafted a bill aimed at withholding 50% of U.S. funding for the U.N. if it doesn't make itself more effective and transparent. "If we have a good story on reform, I'll tell it to the Hill. If we don't, I'm not going to spin it. What they know is that I am is a tough negotiator for U.S. positions."

Unfortunately, developing countries thus far view U.S.-backed reform efforts more as an attack on their influence than a way to strengthen an organization overburdened by demands and deeply stung by the oil-for-food corruption scandal. For that reason they are launching a counteroffensive against the management reforms that are central to Mr. Bolton's efforts. The U.S. has responded by refusing to sign off on the institution's two-year budget until it makes more progress toward reforms that a U.N. summit in September endorsed, including tighter financial and ethical oversight and increased authority for the secretary general to hire and fire and close down programs that have lost their utility.

A New Pragmatism

While many diplomats search for Mr. Bolton's hidden motives in pushing this agenda, they've missed the most obvious: the Bush administration has realized at great pain via Iraq that it can't achieve much in the world without more effective multilateralism. The challenges increasingly defy unilateral solutions: terrorism, international crime, pandemic threats, global warming, nuclear proliferation.

Those who know Mr. Bolton best consider him to be one of the hardest-working, if hottest-tempered, diplomats the U.N. has ever seen. That said, he has also surprised many with his talent for the diplomatic horse-trading that is that institution's hallmark. Friends of Mr. Bolton say a former boss who influenced him deeply was James Baker, a prototypically pragmatic secretary of state.

"The single most important piece of political advice Jim Baker gives anyone is 'Keep your eyes on the prize,'" Mr. Bolton says.

The coming days will show whether this kinder, gentler Mr. Bolton and the broader policy he represents of greater U.S. engagement with the U.N. can yield the wide-ranging management and ethical reforms necessary to rescue the body from its tendencies toward corruption and self-satisfied inefficiency.

Mr. Bolton himself has reason for doubt.

"We're two months beyond the September summit and we are not making the kind of progress we would like," says Mr. Bolton, choosing the careful language of international diplomacy.
Some call what the U.S. is trying to achieve -- with significant support from other countries, notably Japan -- the GE-ization of the U.N., that is, introducing the modern management mechanisms of global companies. Together the U.S. and Japan provide more than 40% of U.N. funds (the U.S. 22% and Japan 19%). Among the leading opponents are Pakistan, Egypt and India.

"We have a structural problem," says Mark Malloch Brown, the secretary general's chief of staff. "The Security Council and member states generally interfere in the management of this organization. They've not given the secretary general the authority or the resources or the means to run a modern organization that can be held properly accountable to its membership."
Counters Mr. Akram of Pakistan, co-chair of the U.N. reform body: "When people say let's transform this into a corporation, that's not possible" because as a political organization the U.N. must satisfy all its members.

The body that symbolizes the problem is also the source of much of the resistance to reform. Known as the Fifth Committee, it is the main council of the General Assembly responsible for administration and budgetary matters. It has 191 members and micromanages to a degree that it is nearly impossible for the secretary general to fire poor performers or shift resources between operations. Imagine a Western legislature having a committee that signs off not just on all expenditures but on each staff position in every mission. Management reform, if it is to work, would take much of that power and give it to a chief executive.

The most effective parts of the United Nations are funded voluntarily and aren't beholden to the Fifth Committee or the General Assembly. They include the United Nations Development program, the World Health Organization, the World Food program and UNICEF. Mr. Bolton has supported a shift of U.N. funding toward such voluntary activities, where competition for government funds with non-UN organizations has created more competitive, efficient organizations.

'If It Works, We'll Use It'

Much has been made of Mr. Bolton's recent comments that suggested that if management reform doesn't happen then Washington would move its business to other institutions. Mr. Bolton says he wasn't expressing ideology but explaining how Americans think.

"The U.S. public's basic question about the United Nations is how well does it work?" he says. "It's a question Americans ask every day about any number of governmental institutions. If it works, we'll use it." And he calls continued speculation that he has come to the U.N. merely to destroy it "conspiracy theories from the fever swamp."

Thus far, U.S. opponents at the U.N. view Mr. Bolton mostly as a rallying point for America-bashing. But Mr. Brown says that tendency is misguided. "Developing countries inaccurately have seen reform and modernization primarily as John Bolton's agenda, and for that reason they are against reforms that should be embraced by anyone who believes in the institution," he says.
Yet for developing countries to embrace U.S.-backed reforms would require them to put their national interests in a better-functioning U.N. ahead of their animosity toward Mr. Bolton and the Bush administration.

That may be the U.N. reform most difficult to come by.

fred.kempe@wsj.com5

URL for this article:http://online.wsj.com/article/SB113320522765108247.html

Note re Diogenes' comment re David Luban's article

A comment from Diogenes (reposted from the comments section):

David Luban's piece in the Washington Post is an exercise in refocusing the debate, away from the trivial and towards the serious. He succeeds in this very well, and his work is an important contribution to the dialogue. While I am not sympathetic to Charles Krauthammer and his recent Weekly Standard piece, I consider it far more serious than any of the other defenses of the Cheney-Addington viewpoint that have been published in the last year - certainly compared with Andrew McCarthy's and Heather Mac Donald's work for instance. But Ken Anderson's comments here are very disappointing. Rather than engage in debate on legal, ethical or intelligence policy grounds, they consist of cheap political rhetoric of the sort I am used to hearing from the mouth of the Rush Limbaughs of the world. This isn't scholarship. It isn't even serious argument. And Ken's line about valuing human life is the cheapest shot of all. I've been a follower of Ken's work for some time, but I have to say this marks a real low point.


Re Diogenes comment above - well, I've apologized to Professor Luban for getting too personal. As for the rest of it, I'm sorry that Diogenes does not find that it engages even as an ethics argument. Possibly not persuasive as an ethics argument, but that it does not engage on that ground? Really? I think I've proposed at least one important ethical principle that is not captured or well captured by existing discussions of torture and mistreatment, viz., the moral status of the person you are dealing with. I've suggested that there is not an alternative to a certain moral casuistry in dealing with actual practices - hence my insistence that legal solutions must in fact deal with actual practices that the legal texts do not directly address. Arguments over ethical principal, arguments from cases - what am I missing here? But if I've descended to Rush Limbaugh territory, then let me put the question back to Diogenes, same as to Marty Lederman in my earlier post. Zarqawi is captured - and please do not tell me that it is not a live possibility or that it is somehow irrelevant - what will you do with him and how will you treat him?

Responding to Marty Lederman

Let me respond quickly to Marty Lederman's comment to my post re David Luban's WP article below - my numbers track his:

1. Re Professor Luban. I do not in the least mean to attack Professor Luban personally; I have followed his work for a long time and am a frank admirer. If that was the impression, my apologies. What I do mean to say is that I believe that as he lays things out by the end of that article, it has moved into a rights-absolutist discourse that, because it is absolutist, leaves out the consequences that are genuinely about life and death for potentially a lot of other people in the case of capturing Zarqawi. I don't think my language was any more harsh than Professor Luban's language was to those he criticizes, but if that was the impression, I certainly apologize to him.

2a. The question of developing a protocol for torture. In the context of Krauthammer's discussion of torture - as such, undeniably as such - then I think it is surprising that it did not come up. I think I have made pretty clear that torture as such - I realize you will think that I am merely playing games with words and what they mean - is actually prohibited. I think there is a floor below which you cannot go. However, while you I think mean that I am unacceptably lowering the floor, I think to the contrary that you are raising it. We cannot settle that without a detailed examination of actual practices, actual proposed techniques of interrogation, given that the international documents do not come with a user manual. However, the point I make remains, I think, an important one. If you are willing to consider the possibility of torture, as Krauthammer is and, albeit solely for purposes of argument against it, Professor Luban is willing to do, then the following is an important empirical possibility. It might be the case that "spontaneous" torture of someone in the ticking time bomb scenario turns out to be an ineffective means of obtaining necessary information. If your moral case - as Krauthammer's moral case appears to do - rests in part on torture being effective to obtain information - whether because you treat those exceptional circumstances as a true justification, or else something like excuse or duress - then the effectiveness of what you do is necessarily part of your consequentialist calculation. If it turns out that it would likely be much more effective to have worked a systematic protocol of torture in advance, and the likelihood of effectiveness is a necessary condition in the moral argument, then it seems important at least to consider having one in advance. I am not endorsing it, because I don't actually endorse torture in Krauthammer's sense (leaving aside whether we agree on what concretely constitutes torture). But the reason I professed puzzlement that no one had discussed is partly that other people have raised it in conversation, not to endorse it, but to consider the idea because it is relevant - Sandy Levinson, for one, in discussions over his book on torture (I don't recall whether Dershowitz, for example, addresses this directly in his discussion of torture in that book). For that matter, the first time I heard this argument made was perhaps 25 years ago in an ethics seminar by Philippa Foot, who gave it as a hypothetical about consequentialism; the possibilities it raised seemed so much more hypothetical then.

2b. I'm sure you're right that no one in the federal government is talking about torture as such. The question is whether various of the activities that they have approved constitute torture - Professor Luban plainly thinks that many of them do, and I take it that you do as well. But at that point what I was discussing was Krauthammer's argument, not the Bush administration. There is something further that I did not raise, that Professor Luban was correct to raise, viz., that approved techniques easily lead, and have lead, to unapproved ones. One of the reasons that I favor a clear, legislative response to all of this is to have it transparently on the table what is okay and what is not; the rules, particularly for line soldiers, have to be completely transparent. If that means, in fact, that things that I think are morally okay or even, as in my Zarqawi claims, morally required, have to be scaled back on prudential grounds that line soldiers need something more transparent and less discretionary, I would accept that. But that's a prudential argument about how you keep soldiers and agents within bounds, not a strictly moral one.

2c. Are we speaking the same language? I think the real issue - and this is what should constitute the real issue for Congress - is to decide what actual, concrete practices, techniques, language in manuals, etc., constitutes torture and what does not. And then what things short of that can be used with respect to what categories of detainees, based on a sliding scale of importance, culpability, and information. We have to put in place a user manual that we think satisfies the bottom line of what constitutes torture. The question of whether we are speaking the same language depends on how we would each classify actual practices in front of us, with respect to a particular detainee. If I assume that I have Zarqawi in front of me, just captured, then that represents to me the limits of what may permissibly be done. Lives, potentially many lives are in the balance, time is potentially of the essence, and, yes, it is consequentialist at that point. On the other hand, someone about whom you really have no information - someone who might simply be the poor shepherd he says he is - is in an entirely different situation - I don't think you're allowed to use very much (I'll reserve for our discussion of actual techniques what "very much" means, but I will say it probably means less than you suspect it might) if any coercion on someone in order to determine in the first place, from tabula rasa, if you think the person is a threat. For that matter, leaving aside Saddam's legal status, and leaving aside the time after the first Gulf War I spent digging up the remains of victims of his chemical weapons attacks, I don't think that you can do to Saddam what you can do to Zarqawi. Am I able to draw specific lines with specific practices? No, although I think that is actually the task. I am able to say that his information, although likely still valuable in many respects, is not immediate in the way that Zarqawi's is. This may lead you to tell me that my Zarqawi hypothetical is merely a way of doing the ticking time bomb scenario in softer edged terms, but that it is still justified by the threat to human life, and that is probably correct. I don't have any list in my head of things that go further than waterboarding but are not torture, and I'm sorry for giving that impression, but in principle - with respect to Zarqawi, I emphasize again - I certainly willing to consider them. And think they should be considered.

Again, are we speaking the same language? We disagree over waterboarding, although I am not sure how willing you are to take into account the idea that Zarqawi, not just because of the immediacy of information but also because of culpability, can be treated differently from some shepherd; this is because I don't think that waterboarding actually crosses the line to where it is absolutely prohibited because it is a simple matter of being human. Feeding him to Saddam's meatgrinder would; what else in the world you can do and can't do has to follow some casuistical basis. It is for this reason that I see no alternative but for a direct discussion of actual practices - the only principle seemingly up for grabs here is whether you can treat some people differently from others because of information and culpability, and the rest is largely how you view certain things. But note that I do not accept your claim that we would call waterboarding torture if it were done to our people - if by our people, you mean US soldiers, for example, entitled to POW treatment, then it would be a war crime, etc.; I have doubts about the equivalence you assume in referring to "us" and "them," at least if the "them" you mean (perhaps you do not) is Zarqawi. And if it were another Timothy McVeigh, captured by some foreign state and known, with the same certainty as Zarqawi, to have information about his next attack, well, waterboarding him seems perfectly okay to me. I would not be claiming that he had been tortured; there would be things you could not do to him but under the circumstnaces, waterboarding would not be one of them.

3. Gender games. Again, things matter depending on information and culpability, so what I say about people reasonably known to have AQ connections is different from someone about whom one knows nothing. But within that former category, then frankly I just don't think the stuff at Guantanamo was that big a deal, and a great deal of the big deal made of it resulted from the process of deliberately raising the stakes - deliberately psychologizing the stakes, in a peculiarly American ritual - of what is offensive and what is not. I realize of course that you deeply disagree with this, from your description of it, so I don't think we are speaking the same language with respect to this.

4. Common article 3 (skipping ahead with part of your point 3 plus 4). (I apologize for doing something that has to look as though I'm skipping the debate, but I have to get a tenure file out otherwise hell to pay with the dean and I will come back to this in more detail in a later post.) But my short answer re common article 3 is that it has to be understood in terms of its paradigm application to combatants captured in the midst of a civil war who are taken to be, in their conduct, essentially equivalent to soldiers in a regular army - they may be tried for sedition or rebellion or insurrection or treason or lots of other things - but the section was drafted with people in mind who are not systematically violating the laws of war. Now, we can, and I hope will, have a long discussion over how to treat people who not one or the other, or about whom we have no information. But to again take the extreme case, I do not think that it was ever historically understood to preclude one from doing drastic things short of torture or perhaps close equivalents to a Zarqawi, under the circumstances I have ascribed to his capture. I understand your point about its plain english words, but those words were always in a certain context and understanding of armed conflict, even internal armed conflict, and that floor, in my view, would always take into account both an absolute floor and an understanding that above that floor, there would still be differences in how you could treat people who fought within the customary rules and people who still represented a genuine threat to people. I realize that this is not a complete answer - and I don't necessarily suggest that I can give a complete answer - but I think that common article 3 is less rigid than you understand it to be, at least when dealing with certain kinds of threats - the threat represented by, in a certain sense that I realize you will find unacceptably remote, a prisoner who has not, in a certain metaphorical sense, surrendered, in the sense of no longer posing a threat to others.

(As Merlin put it to Arthur in a book I once read as a child, when Arthur worried that it was not just or merciful to slay the invaders with a magical sword - "Magnanimty," said Merlin to Arthur, "is a virtue properly shown to the defeated." There is a sense - perhaps I am wrong about this; I really mean to be tentative - in which Zarqawi, captured but watching his evil roll forward, has not been defeated, is not yet hors de combat. But I might be very wrong to argue this direction.)

4. Very quickly re Dan Golove's comment about the relativism of unilaterally deciding what's a threat and what's not. I don't think El Salvador is a good comparison here. When I was in Salvador for various human rights groups, the issue was usually made as an ideological one, in exactly the terms Dan describes - the Salvadoran military saw themselves as under threat in some abstract sense, the threat of communism, for which they were the defenders of a certain national ideal and oligarchic social order. There was also, of course, a very real and bloody civil war underway, but Dan's point of reference is to the relativism of ideals that can be taken as threats to your social order, the ability unilaterally to determine an ideological supreme emergency. But that's not what I've suggested here - I would have to go back and see what I think Krauthammer believes, I don't recall - I have suggested a real threat, real people, real lives.

Maybe the right response to that is to say that it's merely an abstract hypothetical, on a par with Mrs Foot's fat man in the mouth of the cave examples. After all, Mrs Foot herself in that same ethics class treated the ticking time bomb question as equivalent to the fat man stuck in the cave question, and suggested that it might not make any difference what one did to the terrorist if he too was in the city and would go up with the rest of us, while it might (she stressed might) make a difference if he were someplace else, just as it might make a difference whether the fat man's head was facing out or facing in as to whether we could carve him up with a knife to let ourselves out of the cave. I don't recall her coming to any conclusion about that. My point is that it no longer seems at all so hypothetical as it did in the early 1980s.

5. Or, put another way, let me ask the question of you. If I am so very wrong about this moral scheme for the treatment of Zarqawi, invoking a principle of information and culpability, then what would you in fact do? It is not a hypothetical. We know that US forces have come close to him on several occasions; his capture might happen tomorrow, next week, next year. If what I have said is so monstrous - and I would hope that you would acknowledge some difference between it and what Krauthammer has urged - then tell me what is the right treatment? You may indeed persuade me - stuff I put on this blog is not, as far as I'm concerned, written for time and eternity, it's where I stand at a certain point, and I am open to being persuaded that I'm wrong about things, in which case I'll say so as plainly as I can. I'm not thrilled with the idea of endorsing mistreatment. But in this case, the issue may become terribly, tragically concrete, and if my (more or less) concrete proposal is wrong, then what is right? Concretely right?

Thanks for your comments - I will follow up re common article 3. I really do not mean to attack Professor Luban personally in this, and will mark that in the original post. And I do hold myself out as open to persuasion that I am wrong about all or parts of this.

David Luban on torture (plus links to other torture debate articles)

David Luban, Georgetown University Law Center but visiting at Stanford Law School, and a justly celebrated philospher and legal ethicist, writes about torture and detainee treatment in yesterday, Sunday, November 27, 2005, Washington Post, Outlook section, here.

(Update, Tuesday et seq., November 29, 2005. I am going to pile up here links to other articles on torture - no particular order, just articles as I come across them. So, here, this article by Andrew C. McCarthy, senior fellow at the Foundation for the Defense of Democracies, National Review Online, November 29, 2005, "Ticking Time Bombs." And this blog post by Jonah Goldberg, here. Also this blog post, dated December 17, 2005 on the The Right Coast group blog by University of San Diego law professor Thomas A. Smith. I've posted Andrew Sullivan's The New Republic response to Krauthammer separately.)

(Update, Saturday, 17 December 2005. Marty Lederman and I have another exchange of posts, here. And also my response to Diogenes, here. I also wanted to thank Professor Luban for his kind email telling me I hadn't been as rude as I'm afraid I was.)

Among the many important points Professor Luban makes is the centerpiece of his opening - that the debate over torture is not really about the "ticking time bomb" scenario. It is instead, he says, really about the slow accumulation of details that might be only obtained through cruel, inhumane, and/or degrading treatment that some, including Professor Luban although not the Bush administration, says descends to torture. He seems to have in mind - perhaps? - Charles Krauthammer's primer on torture and ethics 101 from the Weekly Standard last week, posted earlier on this blog, which indeed starts from considering the morality of torture in the ticking time bomb scenario.

Professor Luban's point is well taken. On the other hand, by identifying the ticking time bomb with TV melodramas merely, he trivializes unfairly Krauthammer's observation that the ticking time bomb scenario is already a live possibility in a world of suicide bombers in Israel. It is probably already a live one in Iraq. It might turn out to be an unfortunately live one in the United States at a moment too late to make any difference in the case of a dirty nuclear bomb in Manhattan or a biological weapon. While I agree that the central issues of abuse and torture in the current Washington environment are indeed about the long term gathering of information, rather than the ticking time bomb, it is neither a trivial scenario nor one without moral relevance for how one gains information in other circumstances, which was Krauthammer's point.

I was surprised, though, that neither Krauthammer nor Luban noted that one of the problems with making torture suddenly acceptable - as a sort of spontaneous activity either justified as the extreme emergency exception or simply as an excuse or duress in the legal sense - is the problem of effectiveness. That is, there are reasons, at least, to wonder if the kind of spontaneous mistreatment moving along into torture in the ticking bomb scenario will actually produce the needed information in time. Whereas a protocol established in advance for serious, unapologetic, and above all systematic torture might be far better calculated to produce the necessary information that spontaneous abuse that turns into torture as the clock ticks might not. I am not here arguing for such a protocol (I have genuinely mixed feelings), but it seems odd not to discuss the idea. If the justification or excuse of torture in this case is effectiveness, then one ought (in the sense of genuine moral obligation) to make the necessary advance plans to be effective, because justification or excuse or duress on the basis of effectiveness is a necessary part of the moral calculus.

I hesitate to criticize Professor Luban's piece, as I have a great deal of respect for his philosophical acuity (his excellent recent piece on preventative war, for example) and his moral sense, but I do think the latter part of the WP article falls into reciting a litany of behaviors that Professor Luban appears to think simply speak for themselves as shocking the conscience - female interrogators stradling male prisoners, presumably Muslim, and whispering that their comrades have been killed, etc. etc. Well, some of what Professor Luban cites seems to me unlikely to be effective. However, it is likely to be ineffective precisely because it's not torture - ineffective precisely because it is not rough enough to be anything other than the kind of play acting found on internet fetish sites, for example, the sort of gender games that so somehow offend our nation's multiculturalist moralistes even, or especially, when aimed at folks whose idea of justice is stoning gays and sticking women in burkas and beating them.

And when howls of protest emerge - I do not mean Professor Luban here, but rather from the multicultural lobby, from the offended Islamic rights folks, from folks supposedly interested in protecting America's "image" in the world by prohibiting these supposedly horrific psychological traumas - it all has a certain whiff to it of simply knowing how to push the American "we must never offend anyone" button. The interrogators are playing a game, the detainees are playing a game, the worldwide horrified observers are playing a game. As I've noted earlier on this blog, if you tell people that you will never offend them, but that they themselves will measure whether you've been offensive or not, you will quite naturally raise and raise and raise the sensitivity to offense. Reward behavior and you will get more of it. So call me insensitive, or a supporter of torture, or mistreatment, or humiliation, or what have you, but none of this gets remotely into the ballpark of torture.

(How does Professor Luban stand, by the way, on the use of female guards in US prisons where they routinely see male prisoners, some of them Muslim, naked and performing bodily functions in the open? So far as I recall from the talk someone gave at my law school a couple of years ago on this - and it not being my area, perhaps I simply misunderstood it - this was a matter of women's employment rights trumping prisoner privacy rights, according to court decisions, but it did not run the other way to allow male guards doing the same in female prisons - the applause was loud and resounding among my faculty. I didn't hear any wails of violations of international human rights from my faculty.)

Even with respect to genuinely physical mistreatment that Professor Luban describes in the latter part of his article, the issues here are not, it seems to me, as Professor Luban's mere recitation of treatment suggests - that he thinks the behavior simply speaks for itself. The critical issues are, rather, what he does not consider - viz., what consequences might be averted by treatment within the various statements of official guidelines and approved techniques. Yes, I am willing to accept some absolute, rights based floor in treatment - even, possibly, in the ticking bomb scenario. I can't tell you what exactly that it is - but I can tell you it is not any of the stuff, behavior within the official policies, that seems so self-evidently below that threshold to Professor Luban.

And, yes, it does seem to me to matter a great deal whether you believe on solid grounds that the person you are interrogating does have information that might lead to the avoidance of yet another 30 or 50 Iraqis being blown up by a car bomber - not the ticking bomb, but next week or next month. The moral status of that person matters - do you have good reasons to believe that the person is culpable or culpably witholding information that is life and death to people down the road? Professor Luban seems to regard all these techniques of interrogation as a matter of rights of the detained, whereas there are the issues of the lives at stake and their rights to go on living.

Maybe all those lives are too remote from how you treat this prisoner here and now to warrant putting into a moral calculus. But given what Professor Luban says about how real intelligence is gathered, with a view to protecting lives by maintaining security over a long run, that seems unlikely. What seems more likely is that Professor Luban slides in his argument from a calculus of tradeoffs, to an absolutist position of rights of the detainee, without quite telling us. He slides into a recitation of things that are supposed to be self evidently out of bounds, and they include a long list of what, in my view, the US does not do as torture, but in lieu of it.

And so let me be completely clear - if we were to capture Zarqawi tomorrow, which is far from being a mere hypothetical - then I hope that someone has prepared a protocol and regime of deliberate mistreatment and abuse that, while falling short of putting him through Saddam's meatgrinder, would go far, far beyond the methods that Professor Luban thinks are beyond the pale. There are many things beyond officially sanctioned American interrogation techniques that fall short of actual torture and which ought to be used on a Zarqawi, because other people's lives also matter, also have intrinsic moral worth, including Iraqi and Jordanian lives, and it is not a question that within the first weeks or months of holding Zarqawi, obtaining such information is proximately about saving lives. Waterboard Zarqawi? In a heartbeat - the stakes of Iraqi and Jordanian and American lives makes that, in my view, not a serious moral question - the sizable burden, rather, is on those who would say no. Such techniques would be contrary neither to justice nor to prudence. What you can permissibly do to someone depends, in part, on who the person is, and if you to a complete certainty hold Zarqawi, then what you can permissibly do is a great deal, and a great deal beyond what current American policy allows. If Professor Luban would not agree, then I would suggest that - self-evidently - he undervalues other people's lives.

[Note: I apologize to Professor Luban for getting too personal here - I should have said, and meant, that the argument he makes above has the effect, in my view, of undervaluing human lives. Also, someone asked about his preventive war piece - it is here at ssrn and well worth reading.]

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Torture, American-StyleThis Debate Comes Down to Words vs. Deeds

Washington Post
By David Luban
Sunday, November 27, 2005; B01

There are two torture debates going on in America today: One is about fantasy, and the other is about reality.

For viewers of TV shows such as "Commander in Chief" and "24," the question is about ticking bombs. To find the ticking bomb, should a conscientious public servant toss the rulebook out the window and torture the terrorist who knows where the lethal device is? Many people think the answer is yes: Supreme emergencies demand exceptions to even the best rules. Others answer no: A law is a law, and a moral absolute is a moral absolute. Period. Still others try to split the difference: We won't change the rule, but we will cross our fingers and hope that Jack Bauer, the daring counterterrorism agent on "24," will break it. Then we will figure out whether to punish Bauer, give him a medal, or both. Finally, some insist that since torture doesn't work -- that it doesn't actually unearth vital information -- the whole hypothetical rests on a false premise. Respectable arguments can be made on all sides of this debate.

Real intelligence gathering is not a made-for-TV melodrama. It consists of acquiring countless bits of information and piecing together a mosaic. So the most urgent question has nothing to do with torture and ticking bombs. It has to do with brutal tactics that fall short -- but not far short -- of torture employed on a fishing expedition for morsels of information that might prove useful but usually don't, according to people who have worked in military intelligence. After Time magazine revealed the harsh methods used at the Guantanamo Bay detention facility to interrogate Mohamed Qatani, the so-called "20th hijacker," the Pentagon replied with a memo describing the "valuable intelligence information" he had revealed. Most of it had to do with Qatani's own past and his role in the attacks of Sept. 11, 2001. Other parts concerned al Qaeda's modus operandi. But, conspicuously, the Pentagon has never claimed that anything Qatani revealed helped it prevent terrorist attacks, imminent or otherwise.

The real torture debate, therefore, isn't about whether to throw out the rulebook in the exceptional emergencies. Rather, it's about what the rulebook says about the ordinary interrogation -- about whether you can shoot up Qatani with saline solution to make him urinate on himself, or threaten him with dogs in order to find out whether he ever met Osama bin Laden. And the trouble is that this second debate is so wrapped up in legalisms, jargon and half-truths that it is truly hard to unravel.

The most recent issue is Arizona Sen. John McCain's amendment to a defense appropriations bill, designed to plug loopholes in current anti-torture law. It has passed the Senate, and the House is scheduled to vote on it sometime next month. President Bush has responded that we do not torture, we treat prisoners humanely, and we follow our legal obligations. But what, exactly, are the politicians arguing about?

The starting point is the U.N. Convention Against Torture, a treaty that the United States ratified in 1994. Under the convention, we agreed to criminalize overseas torture -- official torture was already a crime within the United States -- and to "undertake to prevent . . . other acts of cruel, inhuman or degrading treatment or punishment" (CID, for short) that "do not amount to torture." Many of the controversial U.S. methods are CID, sometimes called "torture lite." CID includes techniques used in Guantanamo: 18- to 20-hour-a-day questioning for 48 out of 54 days, blasting prisoners with strobe lights and ear-splitting rock music, menacing them with snarling dogs, threatening to hurt their mothers, and humiliations such as leading them around on leashes Pfc. Lynndie England-style, stripping them naked in front of women, or holding them down while a female interrogator straddles them and whispers that we've killed their comrades.

All of these methods were used on Qatani, and documented in the Army's Schmidt report (PDF), which was commissioned in response to FBI allegations of abuses at Guantanamo. (Most of the report, co-authored by Lt. Gen. Randall M. Schmidt, remains classified, so we do not know whether the classified portions contain worse.)

Methods like these were banned in U.S. criminal investigations years ago, because, in the Supreme Court's language, they "shock the conscience." Assaults on human dignity are not who we are or what we stand for. Given the U.S. commitment under the torture convention to "undertake to prevent" CID, why are we using it abroad in cases that have nothing to do with ticking time bombs? Why does the president still insist that we're following our legal obligations, and that we treat detainees humanely?

It depends what you mean by "legal obligations" and "humanely." A quick glossary of the unique Bush administration definitions might help.

Cruel, inhuman or degrading. In the Bush lexicon, these words have no meaning outside U.S. territory because we have no obligation to prevent such methods from being used in interrogations performed outside the United States and its possessions. That was Attorney General Alberto Gonzales's startling argument at his confirmation hearing, and it goes like this: Before the Senate ratified the torture convention, it added the reservation that CID means the cruel, inhuman or degrading treatment forbidden by our Constitution. But the Supreme Court has held, in other unrelated contexts, that the Constitution does not apply outside U.S. territory. Therefore, the administration maintains, outside U.S. territory (including the U.S. military base in Guantanamo, on the island of Cuba) anything goes except outright torture.

This was not at all what the Senate meant, according to Abraham Sofaer, the State Department's legal adviser when the Reagan administration signed the Convention Against Torture in 1988. In a letter this past January to Sen. Patrick Leahy, the Vermont Democrat, Sofaer explained that the purpose of the Senate's reservation was to ensure that the same standards for CID would apply outside the United States as apply inside -- just the opposite of Attorney General Gonzales's conclusion. The point was to define CID, not to create a gaping geographical loophole.

This is the loophole that McCain, a Republican, is trying to close. His amendment requires that the ban on CID not be "construed to impose any geographical limitation."

Humane. This month, the Pentagon issued a new directive on interrogation, requiring "humane" treatment of subjects. It came up with that terminology to replace more specific language in an early draft of its directive that had been modeled on the Geneva Conventions' ban on cruel or humiliating treatment. The reason for the change: Vice President Cheney's office vehemently objected to the initial Geneva-like phrasing.

But what does "humane" mean? Not much, it seems. Amazingly, the Army's Schmidt report declared that none of the tactics used in Guantanamo were "inhumane." Along similarly minimalist lines, Gonzales defined "humane treatment" as requiring nothing more than providing food, clothing, shelter and medical care. In the Bush lexicon, therefore, sexual humiliation, acute sleep deprivation and threats to have a detainee's mother kidnapped and imprisoned are humane.

Oddly enough, the Schmidt report also concluded that most of the Guantanamo tactics were already authorized by U.S. Army doctrine -- a conclusion that the Army never previously accepted. The basic Army doctrine on interrogations is the Golden Rule: Before using a tactic, interrogators should ask themselves whether they think it would be permitted if used by an enemy against American prisoners of war. Given our protests at the public display of downed American fliers in Iraq during the first Gulf War, it is obvious that the answer would be "no" to the sexual humiliations at Guantanamo.

The Army's manual does discuss so-called "futility" tactics -- making the prisoner believe that further resistance is futile by presenting "factual information . . . in a persuasive, logical manner." Schmidt, however, twisted this doctrine to justify blasting detainees with high-volume "futility music" (the report's phrase) by Metallica and Britney Spears, dressing a detainee in a bra, and making him do dog tricks. McCain's amendment would restrict interrogations to those authorized by the Army's manual -- but the way the Schmidt report reads the manual, this limitation amounts to very little. (In any case, the Army is rewriting the manual.)
Legal obligations. Bush declared that al Qaeda members have no Geneva Conventions rights -- not even the minimum rights against cruel and humiliating treatment that the Geneva accords guarantee to detainees who don't qualify as POWs. Although in February 2002 the president ordered the military to treat detainees according to the Geneva standards, his order conspicuously omitted any mention of non-military agencies such as the CIA. It also left a large loophole for "military necessity."

In the law of war, military necessity encompasses anything that contributes to victory, so the president's directive really forbids nothing but pointless sadism. Cheney and his new chief of staff, David Addington, have fought the McCain amendment precisely because it would prohibit CID treatment. In short, we comply with our legal obligations because, in the Bush lexicon, we hardly have any.

We don't torture. "We don't torture" means that we don't use worse tactics than CID -- except when we do. Waterboarding (in which a prisoner is made to believe he is drowning) and withholding pain medication for bullet wounds cross the line into torture -- and both have allegedly been used. So does "Palestinian hanging," where a prisoner's arms are twisted behind his back and his wrists are chained five feet above the floor.

A Nov. 18 ABC News report quoted former and current intelligence officers and supervisors as saying that the CIA has a list of acceptable interrogation methods, including soaking naked prisoners with water in 50-degree rooms and making them stand for 40 hours handcuffed and shackled to an eyebolt in the floor. ABC reported that these methods had been used on at least a dozen captured al Qaeda members. All these techniques undoubtedly inflict the "severe suffering" that our law defines as torture.

Consider the cases of Abed Hamed Mowhoush and Manadel Jamadi. Mowhoush, an Iraqi general in Saddam Hussein's army, was smothered to death in a sleeping bag by U.S. interrogators in western Iraq. Jamadi, a suspected bombmaker, whose ice-packed body was photographed at Abu Ghraib, was seized and roughed up by Navy SEALS in Iraq, then turned over to the CIA for questioning. At some point during this process, according to an account in the New Yorker magazine, someone broke his ribs; then he was hooded and underwent "Palestinian hanging" until he died. The CIA operative implicated has still not been charged, two years after Jamadi's death. And the SEAL leader was acquitted, exulting afterward that "what makes this country great is that there is a system in place and it works."

He got that right. Shamefully, it is a system that permits cruel, inhuman and degrading treatment, smudges long-standing lines about what is and is not permitted in routine interrogations -- and then expresses hypocritical horror when soldiers and interrogators cross the blurry line into torture and murder.

McCain has said that ultimately the debate is over who we are. We will never figure that out until we stop talking about ticking bombs, and stop playing games with words.

Author's e-mail:
luband@law.stanford.edu

David Luban is a professor at Georgetown University Law Center and a visiting professor this year at Stanford University Law School. He writes frequently about legal ethics and contributed a chapter to the forthcoming book "The Torture Debate" (Cambridge University Press).

Sebastian Mallaby explains it all for you - including Wal-Mart

I occasionally have disagreements with Mr. Mallaby, but not very often, and I find him one of the most refreshingly sensible newspaper columnists on international economics and development. Here he is in today's Washington Post on the rather silly Wal Mart controversy (this is one of those short articles that I will force my darling 13 year old daughter to read in order to make sure she's absorbing something of basic welfare economics):

(Update, November 28, 2005. Not everyone is convinced. For the contra argument, see this article by columnist Neal Peirce, in the Seattle Times, here.)

***
Progressive Wal-Mart. Really.

By Sebastian Mallaby
Washington Post

Monday, November 28, 2005; A21

There's a comic side to the anti-Wal-Mart campaign brewing in Maryland and across the country. Only by summoning up the most naive view of corporate behavior can the critics be shocked -- shocked! -- by the giant retailer's machinations. Wal-Mart is plotting to contain health costs! But isn't that what every company does in the face of medical inflation? Wal-Mart has a war room to defend its image! Well, yeah, it's up against a hostile campaign featuring billboards, newspaper ads and a critical documentary movie. Wal-Mart aims to enrich shareholders and put rivals out of business! Hello? What business doesn't do that?

Wal-Mart's critics allege that the retailer is bad for poor Americans. This claim is backward: As Jason Furman of New York University puts it, Wal-Mart is "a progressive success story." Furman advised John "Benedict Arnold" Kerry in the 2004 campaign and has never received any payment from Wal-Mart; he is no corporate apologist. But he points out that Wal-Mart's discounting on food alone boosts the welfare of American shoppers by at least $50 billion a year. The savings are possibly five times that much if you count all of Wal-Mart's products.

These gains are especially important to poor and moderate-income families. The average Wal-Mart customer earns $35,000 a year, compared with $50,000 at Target and $74,000 at Costco. Moreover, Wal-Mart's "every day low prices" make the biggest difference to the poor, since they spend a higher proportion of income on food and other basics. As a force for poverty relief, Wal-Mart's $200 billion-plus assistance to consumers may rival many federal programs. Those programs are better targeted at the needy, but they are dramatically smaller. Food stamps were worth $33 billion in 2005, and the earned-income tax credit was worth $40 billion.

Set against these savings for consumers, Wal-Mart's alleged suppression of wages appears trivial. Arindrajit Dube of the University of California at Berkeley, a leading Wal-Mart critic, has calculated that the firm has caused a $4.7 billion annual loss of wages for workers in the retail sector. This number is disputed: Wal-Mart's pay and benefits can be made to look good or bad depending on which other firms you compare them to. When Wal-Mart opened a store in Glendale, Ariz., last year, it received 8,000 applications for 525 jobs, suggesting that not everyone believes the pay and benefits are unattractive.

But let's say we accept Dube's calculation that retail workers take home $4.7 billion less per year because Wal-Mart has busted unions and generally been ruthless. That loss to workers would still be dwarfed by the $50 billion-plus that Wal-Mart consumers save on food, never mind the much larger sums that they save altogether. Indeed, Furman points out that the wage suppression is so small that even its "victims" may be better off. Retail workers may take home less pay, but their purchasing power probably still grows thanks to Wal-Mart's low prices.

To be fair, the $4.7 billion of wage suppression in the retail sector excludes Wal-Mart's efforts to drive down wages at its suppliers. "Wal-Mart: The High Cost of Low Price," the new anti-Wal-Mart movie that's circulating among activist groups, has the requisite passage about Chinese workers getting pennies per day, sweating to keep Wal-Mart's shelves stocked with cheap clothing. But no study has shown whether Wal-Mart's tactics actually do suppress wages in China or elsewhere, and suppression seems unlikely in poor countries. The Chinese garment workers are mainly migrants from farms, where earnings are even worse than at Wal-Mart's subcontractors and where the labor is still more grueling.

Wal-Mart's critics also paint the company as a parasite on taxpayers, because 5 percent of its workers are on Medicaid. Actually that's a typical level for large retail firms, and the national average for all firms is 4 percent. Moreover, it's ironic that Wal-Mart's enemies, who are mainly progressives, should even raise this issue. In the 1990s progressives argued loudly for the reform that allowed poor Americans to keep Medicaid benefits even if they had a job. Now that this policy is helping workers at Wal-Mart, progressives shouldn't blame the company. Besides, many progressives favor a national health system. In other words, they attack Wal-Mart for having 5 percent of its workers receive health care courtesy of taxpayers when the policy that they support would increase that share to 100 percent.

Companies like Wal-Mart are not run by saints. They can treat workers and competitors roughly. They may be poor stewards of the environment. When they break the law they must be punished. Wal-Mart is at the center of the globalized, technology-driven economy that's radically increased American inequality, so it's not surprising that it has critics. But globalization and business innovation are nonetheless the engines of progress; and if that sounds too abstract, think of the $200 billion-plus that Wal-Mart consumers gain annually. If critics prevent the firm from opening new branches, they will prevent ordinary families from sharing in those gains. Poor Americans will be chief among the casualties.

mallabys@washpost.com

Marty Lederman comments on detainee treatment and Common Article 3 standard

Marty Lederman was kind enough to post a thoughtful comment, including questions for me, re a couple of posts of mine addressing the standard of detainee treatment and the issue of the application of the standard of Common Article 3 of the Geneva Conventions. I'm finishing my last two days of classes and am somewhat frantic, so I'll be a little bit getting back to this, but I will - but I wanted to make Professor Lederman's comment more visible, so here it is, along with a second thoughtful comment by K. Scott:

***
Marty Lederman writes:

Professor Anderson:

I think it's very interesting that you've now suggested several times that "we have an obligation to establish minimum standards -- standards that can usefully draw on existing minimum standards in the laws of war, such as Common Article 3 of the Geneva Conventions," but that "those minimum standards ought to be established for the particular and specific purpose of this new kind of intelligence war."

I, too, have been trying to persuade folks that the single best, simplest solution to the torture scandal -- the best start, anyway -- would be to codify the standards of Common Article 3.

But I'm curious, then, how it is that you and I can be hinting at the same solution: How could the standards of CA3 conceivably be "modified" to have new, and special, meaning for the interrogation of international terrorism suspects? Imagine, for instance, a statute that incorporated CA3, and that thus provided that "every individual in the custody or under the physical control or effective control of the United States Government, regardless of nationality or physical location, shall in all circumstances be treated humanely, and the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; and outrages upon personal dignity, in particular humiliating and degrading treatment."

I don't see any way in which these standards could be "construed" to permit the sorts of techniques that the CIA and military have been authorized to use against Al Qaeda suspects. See, e.g., http://balkin.blogspot.com/2005/11/cia-enhanced-interrogation-techniques.html.

I, for one, think that would be a good thing.

But you appear to be suggesting that "cruel treatment," "torture," "outrages upon personal dignity," and "humiliating and degrading treatment" might take on a different, much more forgiving, hue with respect to this new category of detainees. I don't see it -- not, at least, without doing real damage to the ordinary English meanings and common understandings of these words.

Am I missing something? Or would you actually have us abandon the CA3 standards?

Thanks

***
K. Scott writes:

Re 'insitutionalizing' the war on terror, I think your position suffers from several perspectives. There is every evidence to presume that the point of many if not most of the policy positions of the Bush Administration was to "insitutionalize" the Republican Party, as well as aggrandize Executive power, it most certainly was NOT first and foremost to proect the US. The tail has been wagging the dog for some time, you really think the Administration even wants to change now?

Secondly, you posit worse treatment for some detainees based on their asserted importance and foreign status: this without judicial oversight. There is little evidence that coercive interrogation yields good information, and much that it does not. In addition, the lack of judicial oversight would quickly enable the policy to descend to nightmare, as it has done already. Please review the documents from Gitmo if you believe otherwise. Lastly, I assume you would have no objection then to similar tactics - with no judicial oversight or any transparency - being used on US citizens abroad? Water boarding of CIA operatives perhaps? Or of Seals, or even army? It is simply insufficient in law or logic to suppose that such tactics be used only in 'opur just' cuase, but not theirs.

A common standard is needed, or the standard lowers to the lowest common denominator - that has been the lesson of history, and particularly of the last few years. Finally, changing the standard for some detainees but not all, in some instances but not all, smacks of conflating the jus ad bello and the jus ad bellum - if not directly, than very analagously. Doing so does more than simply confuse, it detroys the enitre edifice fo intrnational humantarian law. In summary, you trust this Administration too much, government too much, the torturer too much, and oddly enough for a professor of law, show entirely too little practical interst in the Rule of Law.