Sunday, April 30, 2006

Hesham Nasr on legal reform in the Arab world - podcast

I have a wonderful SJD - Ph.D equivalent in law - student at Washington College of Law, an Egyptian lawyer and judge named Hesham Nasr. His dissertation topic is legal reform in the Arab world, and in preparation for its defense in the fall, he gave a talk covering some of its central themes at WCL, American University, in April 2006. I acted as moderator and also offered a few comments. I strongly recommend the podcast if you are interested in a sophisticated and intelligent, practical but also deeply intellectual, understanding of law and law reform in the Arab world. The podcast is here. (Hesham is now in Afghanistan, training judges on behalf of a European aid agency.)

My review of Jack Goldsmith and Eric Posner's The Limits of International Law - now out!

I was fortunate to be invited to a quite wonderful small symposium at the University of Georgia Law School, hosted by Peter Spiro and Dan Bodansky and the staff of the international law review there, back in October 2005. The topic was the recent book by Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford 2005). The group ranged widely in terms of method and approach to international law - it included Peggy McGuinness, Kal Raustiala, Ariel Lavinbuk, Dan Golove, Andrew Guzman, and several other equally distinguished people and, of course, Jack and Eric. The symposium papers have been turned into a special issue of the UGA international journal - various of the papers have been posted to SSRN already, and I'm pleased to say I've just posted mine. (Update - and here is the reply essay to all the participants by Jack and Eric - it is a very, very interesting discussion of changes in international scholarship and method.)

My little discussion is titled "Remarks by an Idealist on the Realism of the Limits of International Law," 34 Georgia Journal of International and Comparative Law 253-284 (2006), and it can be found at SSRN here. It is a peculiar little essay - downright weird - be warned. Here is the abstract posted at SSRN:


This paper is a response to Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Oxford 2005), part of a symposium on the book held at the University of Georgia Law School in October 2005. The review views The Limits of International Law sympathetically, and focuses on the intersection between traditional and new methodologies of international law scholarship, on the one hand, and the substantive political commitments that differing international law scholars hold, on the other. The paper notes that some in the symposium claim that the problem with The Limits of International Law is that it improperly conflates the new rationalist methodologies of international law, such as rational choice theory, with substantive political outcomes in international law - particularly attachment to the sovereignty of states, as against the preferred political outcome of traditional international law scholars, liberal internationalism.

The paper argues, however, that the rationalist methodology of The Limits of International Law, if successful, essentially undercuts the substantive political claims of liberal internationalism, by denying to it the claim that the international legal order exercises an exogenous pull upon the behavior of states. If the rationalist methodology of The Limits of International Law is successful, then the substantive political position of democratic sovereignty (rather than liberal internationalism) is effectively the last man standing as the bearer of idealist values in international law - there will be no point to considering liberal internationalism because it would exert no exogenous pull upon state behavior beyond what states would otherwise exhibit, whether from state interest or from a state's ideals and values. The stakes for the rationalist methodology are therefore considerable because the rational choice methodology of The Limits of International Law bears directly upon what substantive political positions are available as vehicles for values and ideals in the international order.

The paper also notes that the whole debate as to whether international law exerts an exogenous tug upon the behavior of states has a curious resemblance to debates in the philosophy of mind and intention - to the writings of analytic philosophers Gilbert Ryle and Elizabeth Anscombe - over the 'ghost in the machine' of intention and behaviorist skepticism about the ghost in the machine. International law's new rationalist methods thus somewhat resemble behaviorism's attempt the strip the ghost out of the machine, stripping the ghost of the exogenous pull and tug of international out of the machine by showing that it is, examined closely enough, simply a manifestation of state interest.

Michael Ignatieff on torture in Prospect

I had been meaning to link to this article by Michael Ignatieff in the April 2006 issue of Prospect magazine, on torture. (I am particularly interested in his quote from Ken Roth, in which Ken says that "vigorous" questioning of torture suspects is okay, but then, so far as I can tell, regards anything that goes beyond what the Geneva Conventions mandate for full blown, acknowledged POWs under Geneva III to be out of bounds, even for unprivileged combatants.) I think this is a quite brave and quite persuasive argument by Michael - this is a case in which Michael's agoniste method of moral philosophy performs impressively, and avoids the problem that Mark Steyn lampooned in an article on Ignatieff a few months ago in Maclean's, the problem of Hamletting.

I am also impressed that Human Rights Watch would be willing to get anywhere this close to a view that it considers pernicious - this Prospect piece comes out of the new and quite good book edited by Ken Roth and HRW on torture - I'm a little surprised it did not dismiss it as unworthy of debate. Of course, Michael has impeccable credentials with the human rights community. (To judge by some of the opposition posters in Michael's parliamentary campaign, which you can find on google images, there were some Canadians who were inclined to dismiss it as unworthy of debate.) Anyway, here is Michael Ignatieff's view, as of April 2006:

If torture works...

by Michael Ignatieff
Prospect Magazine
April 2006

The debate over torture is not as simple as it seems. Those of us who oppose torture under any circumstances should admit that ours is an unpopular policy that may make us more vulnerable to terrorism

Michael Ignatieff is visiting professor in human rights policy at the University of Toronto, Liberal MP for the Etobicoke-Lakeshore constituency in Toronto and the author of "The Lesser Evil" (Princeton University Press)

It is difficult to think about torture honestly. In a recent article on the interrogation techniques employed by the US, the writer Mark Bowden observed that few "moral imperatives make such sense on a large scale, but break down so dramatically in the particular." The moral imperative—do not torture, any time, anywhere, in any circumstances—is mandated by the UN convention against torture and other cruel, inhuman or degrading treatment or punishment. "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency," says the convention, can "be invoked as a justification of torture."

That terrorists themselves torture does not change these imperatives. Our compliance does not depend on reciprocity. As long as we stay on this high ground of unconditional prohibition, we seem to know where we are. Problems begin when we descend into the particular, when we ask what exactly counts as torture.

Since no state wants to be seen as torturing suspects but all states want to be able to extract information to protect their citizens, the key question is whether states can use methods of "coercive interrogation" that do not qualify as torture.

When the torture convention was ratified by the US Senate in 1994, maintaining a meaningful distinction between coercive but lawful interrogation and outright torture was a central concern. The Senate ratified the convention on the understanding that torture should be reserved for "severe physical or mental pain or suffering" resulting in "prolonged mental harm." Once the war on terror began, the parsing of the convention went still further. In the now notorious memos submitted by the office of legal counsel to the White House in 2002, these definitions were stretched to the point that the threshold for torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death." Any physical abuse below that standard counted as "coercive interrogation." Some forms of coercive interrogation, the lawyers admitted, might not be torture, but they would still be defined as "inhuman and degrading treatment."

When in 1978 the European court of human rights investigated British interrogation practices in Northern Ireland during the early 1970s, it concluded that a range of painful practices constituted inhuman and degrading practice even if they did not qualify as torture. When the Israeli supreme court ruled against Israeli interrogation techniques in 1999—techniques that included holding suspects in painful positions with hoods, and vigorously shaking the head and shoulders—it also ruled against them as inhuman and degrading, but not as torture. There is thus a conceptual and practical distinction between torture and coercive interrogation. There is a further distinction—at least in theory—between methods of coercive interrogation that are lawful and permissible and those that may be inhuman and degrading. While this distinction exists in theory, most human rights activists would deny that such a distinction can be observed in practice. Human rights activists accept that reliable information is essential for combating terrorists and that interrogation is a central feature of any counterterrorist strategy. Kenneth Roth, of Human Rights Watch, argues that "respect for the Geneva conventions does not preclude vigorously interrogating detainees about a limitless range of topics." What work is the word "vigorously" doing in this sentence? It is intended to make it clear that a human rights defender takes seriously the necessity of getting from detainees real information that may prevent future terrorist attacks. But what, in specific terms, might "vigorous" interrogation actually entail? Clearly, Roth and anyone else who cares about human rights wants to exclude any form of abuse. But what exactly counts as abuse in a "vigorous" interrogation?

In order to prevent vigorous interrogation from slipping down any slope, human rights activists want to collapse the distinction between "coercive interrogation" and "torture," and to ban any physical or psychological coercion. But there is a significant distinction between the two. As legal theorist and federal judge Richard Posner has argued, "almost all official interrogation is coercive, yet not all coercive interrogation would be called 'torture' by any competent user of the English language." As the political philosopher Jean Bethke Elshtain writes, "when human rights groups label 'unpleasant or disadvantageous treatment of any kind' torture… they fail to discriminate between cases," for example, between "sleep deprivation and amputation or burning or some other horror.

"Clear thinking about torture is not served by collapsing the distinction between coercive interrogation and torture. Both may be repugnant, but repugnance does not make them into the same thing. If coercion and torture are on a moral continuum, at what point on the continuum, to use Posner's words, does queasiness turn to revulsion? Vigorous interrogation might mean lengthy, exhausting, harassing exchanges with interrogators. Provided that there was no physical contact between interrogator and subject, no deprivation of food or water harmful to health, this might qualify as lawful interrogation. But at every ratchet of coercion, moral problems arise. Sleep deprivation will not leave physical or permanent psychological scars, but as Menachem Begin, who was interrogated in Soviet Russia, remembered, "anyone who has experienced this desire [for sleep] knows that not even hunger or thirst are comparable with it.

"It might be lawful to deceive a subject under interrogation, by stating that all of his associates are already in detention when they are still at large. But other forms of deception can inflict excruciating psychological anguish. Threatening a subject with the imminent death or torture of those dearest to him may not leave any physical marks, but it rightly can constitute torture, not just coercion, in even the US Senate's definition. Both Elshtain and Posner have argued against the moral perfectionism that elides the distinction between coercion and torture, and have stressed the cruel, if regrettable, necessity of using coercive methods on a small category of terrorists who may have information vital to saving the lives of innocent people. Posner justifies coercive interrogation on utilitarian grounds: saving the lives of many counts more, in moral terms, than abusing the body and dignity of a single individual. Elshtain justifies coercive interrogation using a complex moral calculus of "dirty hands": good consequences cannot justify bad acts, but bad acts are sometimes tragically necessary. The acts remain bad, and the person must accept the moral opprobrium and not seek to excuse the inexcusable with the justifications of necessity.

My own work on "lesser evils" brings me close to the Elshtain position. I agree with her that necessity may require the commission of bad acts, which necessity, nevertheless, cannot absolve of their morally problematic character—but I still have a problem. If one enumerates the forms of coercive interrogation that have been judged to be inhuman and degrading by the Israeli and the European courts—hooding, holding subjects in painful positions, exposing them to cold or heat or ear-splitting noise—these techniques also seem unacceptable, though at a lower threshold of awfulness, than torture. Like Elshtain, I am willing to get my hands dirty, but unlike her, I have practical difficulty enumerating a list of coercive techniques that I would be willing to have a democratic society inflict in my name. I accept, for example, that a slap is not the same thing as a beating, but I still don't want interrogators to slap detainees because I cannot see how to prevent the occasional slap deteriorating into a regular practice of beating. The issue is not, as Elshtain implies, that I care overmuch about my own moral purity but rather that I cannot see any clear way to manage coercive interrogation institutionally so that it does not degenerate into torture.

On the issue of regulation, there are those—Alan Dershowitz, for example—who believe that banning torture and coercion outright is unrealistic. Instead, the practice should be regulated by court warrants. But judicialisation of torture, and of coercive interrogation techniques involving stress and duress, physical abuse, sleep deprivation and so on, could lead to torture and coercion becoming routine rather than an exception. A position in favour of outright prohibition of both torture and coercive interrogation has gained strength from the abuses at Abu Ghraib, and from the memos of the office of legal counsel and the White House parsing the torture convention into permission for coercive interrogation. It seems clear from the dire experience of Abu Ghraib that outright prohibition of both torture and coercive interrogation is the only way to proceed. Rules for interrogations, with penalties in the uniform code of military justice, should be mandatory.

Absolute prohibition, however, is easy. Enforcement is hard, and even rules and punishment for infraction are not enough. The crucial element for enforcement of rules and procedures against abuse of detainees is habeas corpus, the legal requirement of any detaining power in a democracy to produce detainees before a court of law and justify detention to a duly appointed legal authority. As long as the US—or any state, for that matter—has the power to detain at pleasure and in secret, abuse of detainees is inevitable. International pressure, domestic mobilisation and, finally, congressional legislation are all necessary to stop the practice of "ghost detainees," whose identities remain concealed and who may be held outside the US, inside the US, or in third countries. It should be mandatory that every single detainee held by the US, whether a citizen or not, be publicly known. If operational necessity—keeping the enemy from knowing who is in custody—requires secrecy, disclosure of their names to congress and the courts can be undertaken in camera. It should also be mandatory that every detainee of the US, whether citizen or not, whether held onshore or offshore, should have habeas corpus access to a federal court, together with the legal capacity to make representations to that court about treatment and detention.

I am not so naive as to suppose that federal court review of detention will always provide effective remedies for detainees. But evidence of the impact of recent supreme and federal court rulings on the tribunal review process at Guantánamo, and on ordinary treatment of the detainees, does suggest that court review and access, however imperfect, is the only reliable way to keep detention under the rule of law.

So I end up supporting an absolute and unconditional ban on both torture and those forms of coercive interrogation that involve stress and duress, and I believe that enforcement of such a ban should be up to the military justice system plus the federal courts. I also believe that the training of interrogators can be improved by executive order and that the training must rigorously exclude stress and duress methods.

Two significant problems remain. First of all, there is the problem of the exceptional case, one where lives can be saved by the application of physical methods that amount to torture. "Ticking bomb cases" cannot be wished away. They might arise especially where an American or European city faced the threat of WMD. An outright ban on torture and coercive interrogation leave a conscientious security officer with little choice but to disobey the ban. In this event, as the Israeli supreme court has said, even a conscientious agent acting in good faith to save lives should be charged with a criminal offence and be required to stand trial. At trial, a defence of necessity could be entered in mitigation of sentence, but not to absolve or acquit. This is the only solution I can see that remains consistent with an absolute ban on torture and coercive interrogation. Let us not pretend that the enforcement of this rule would be easy. Where the threat could be shown to be genuine, it seems evident that few legal systems would punish such a conscientious offender. So an outright ban on torture creates the problem of the conscientious offender. This is a small price to pay for a ban on torture.

Does an outright ban on torture and coercive interrogation meet the test of realism? Would an absolute ban on torture and coercive interrogation using stress and duress so diminish the effectiveness of our intelligence-gathering that it would diminish public safety? It is often said—and I argued so myself—that neither coercive interrogation nor torture is necessary, since entirely lawful interrogation can secure just as effective results. There must be some truth to this. Israeli interrogators have given interviews assuring the Israeli public that physical duress is unnecessary. But we are grasping at straws if we think this is the entire truth. As Posner and others have tartly pointed out, if torture and coercion are both as useless as critics pretend, why are they used so much? While some abuse and outright torture can be attributed to individual sadism, poor supervision and so on, it must be the case that other acts of torture occur because interrogators believe, in good faith, that torture is the only way to extract information in a timely fashion. It must also be the case that if experienced interrogators come to this conclusion, they do so on the basis of experience. The argument that torture and coercion do not work is contradicted by the dire frequency with which both practices occur. I submit that we would not be "waterboarding" Khalid Sheikh Mohammed—immersing him in water until he experiences the torment of nearly drowning—if our intelligence operatives did not believe it was necessary to crack open the al Qaeda network that he commanded. Indeed, Mark Bowden points to a Time report in March 2003 that Sheikh Mohammed had "given US interrogators the names and descriptions of about a dozen key al Qaeda operatives believed to be plotting terrorist attacks." We must at least entertain the possibility that the operatives working on Sheikh Mohammed in our name are engaging not in gratuitous sadism but in the genuine belief that this form of torture—and it does qualify as such—makes all the difference.

If they are right, then those who support an absolute ban on torture had better be honest enough to admit that moral prohibition comes at a price. It is possible, at least in theory, that subjecting interrogators to rules that outlaw torture and coercive interrogation, backed up by punishment if they go too far, will create an interrogation regime that allows some interrogation subjects to resist divulging information and prevents our intelligence services from timely access to information that may save lives.

If there is a significant cost to an outright ban on coercive interrogation and torture, what can possibly justify it? Many of the arguments that human rights activists make in justification amount to the claim that torture shames their moral identity as human beings and as citizens, and that they do not wish such acts to be committed in their names. Other citizens in a democracy may not value their own moral scruple over the collective interest in having accurate security information, even if collected by dubious means. It may be obvious to human rights activists how to adjudicate these claims, but it is not obvious to me. That is, I do not see any trumping argument on behalf of the rights and dignity of security detainees that makes their claims prevail over the security interests (and human right to life) of the majority. The best I can do is to relate the ban on torture to the political identity of the democracies we are trying to defend—by claiming that democracies limit the powers that governments can justly exercise over the human beings under their power, and that these limits include an absolute ban on subjecting individuals to forms of pain that strip them of their dignity, identity and even sanity.

We cannot torture, in other words, because of who we are. This is the best I can do, but those of us who believe this had better admit that many of our fellow citizens are bound to disagree. It is in the nature of democracy itself that fellow citizens will define their identity in ways that privilege security over liberty and thus reluctantly endorse torture in their name. If we are against torture, we are committed to arguing with our fellow citizens, not treating those who defend torture as moral monsters. Those of us who oppose torture should also be honest enough to admit that we may have to pay a price for our own convictions. Ex ante, of course, I cannot tell how high this price might be. Ex post—following another terrorist attack that might have been prevented through the exercise of coercive interrogation—the price of my scruple might simply seem too high. This is a risk I am prepared to take, but frankly, a majority of fellow citizens is unlikely to concur.

From "Torture: Does it Make Us Safer? Is it Ever OK?," edited by Kenneth Roth and Minky Worden, £12.99, published by The New Press in conjunction with Human Rights Watch, 2006.


1948 Universal declaration of human rights states that “no one shall be subjected to torture, or to cruel, inhuman or degrading treatment.”
1950 Third Geneva convention outlaws use of torture on prisoners of war.
1987 UN convention against torture comes into force. Ratified by Britain in 1988 and the US in 1994.
1998 The European convention on human rights, which prohibits torture under all circumstances, is incorporated into British law.
2002 US department for justice advises the CIA that torturing al Qaeda prisoners “may be justified” and that international laws banning torture “may be unconstitutional if applied to interrogations.”
2004 Leaked Red Cross report into American abuse of detainees in Iraq claims that some treatment was “tantamount to torture.”
2004 First photos of detainee abuse at Abu Ghraib prison released and published.
2005 Law lords rule that evidence that may have been obtained through torture is inadmissable in British courts.

Saturday, April 29, 2006

Law professor blogging

(Update, May 2, 2006: In this related post, here, I offer one specific example of what blog legal scholarship might look like, in the area of public international law scholarship and methodology.)

(Update, April 30, 2006: Hmm ... after observing below that this blog is mostly surfed by undergrads looking for a quick term paper fix on just war theory, and doesn't get read by law professors, Roger Alford, Transatlantic Assembly, and 3LEpiphany have all linked on this post and brought over some prof surfers. Welcome, anybody checking out this site! Here are two of my favorite posts on this blog, here and here.)

I've been reading with considerable interest the papers on law professor blogging from the Harvard conference this past week. Larry Solum has posted them here, at Legal Theory Blog. Roger Alford of Opinio Juris has pulled from the conference some striking observations about blogging, the effects of the web, and the future of law professor scholarship and roles, here.

I have some doubts about the "flattening" effects that some have imputed to blogging and the internet on legal scholarship. Certainly the pressure is on services like Lexis and Westlaw - merely having a proprietary database won't work as a long term business model. On the other hand, there are many circumstances - in high pressure, high billing law practice, for example - where a well organized, easily searchable data base has immense advantages over running all over the Web. In that case, of course, it is not the data per se, but the service provided by its data base features that is the selling point.

SSRN is crucial to me, because the frankly weird areas of international law that I tend to write about - international NGOs and global civil society, for example - are highly interdisciplinary and don't really have much of a law school audience. Many of my readers, to the extent there are any, are abroad, and many are far outside of law faculties. It is usually by accident that law professors have an interest in my areas, alas. SSRN enables me to bridge those gaps.

Still, I think that the branding of top law reviews will continue to dominate even in the future, because no one has time to read a truly level playing field, and we will all want someone to do the culling, at least at the first level. The striking unwillingness of law professors to create and staff genuinely peer reviewed journals I take as an indication that we collectively prefer to allow someone else to do the culling. Brand will matter.

Will law professors increasingly become public intellectuals? Well, maybe, but then it's all a matter of numbers. What does it mean to have so large a group of public intellectuals that no one knows who they are? Judge Posner, in a moment of frankly unjustified kindness, included me (far down) in his lists of public intellectuals in his book on the subject a couple of years ago - almost entirely because I've written occasionally over the past dozen or so years for the Times Literary Supplement in London. What I've noticed, however, is that because (up until pretty recently) it has been available only very sparsely online - unlike, say, the New York Review of Books - its visibility among academics has gotten smaller and smaller. My younger colleagues have frankly not heard of it. This is too bad, because it remains the best written and edited of the major literary reviews. But it has guarded its content so thoroughly that it has lost recognition among younger scholars - and cachet, too, as it is difficult to attribute cachet to something you don't know exists.

My not very major point is simply that public intellectuals can be so exclusive as to stop being public anymore - or so inclusive that every blog counts. I am, actually, all in favor of the democratization of the public intellectual marketplace, but I don't think it will flatten as much as some think, nor do I think it will stay flat for all that long - and the driver will be reader attention spans, including mine.

Put another way, if I were someone strolling across the web, this particular blog is not one I would pause upon. I don't think of it as quite the same as the categories in the Harvard conference - it's really something less. It's more or less a public filing cabinet, consisting mostly of articles that I don't want to lose track of, with relatively little commentary from me. There's also a component of self-salesmanship, posting my own articles and stuff like that. But mostly it's a filing cabinet.

Random thought about web traffic statistics and how deans might use them as they now do citation lists. I don't do very well in Westlaw citation lists, in large part because my writings, to the extent they have an audience, reach to people outside of law. But when I look at my site meter to get an idea of who stumbles onto this blog, well, I think it mostly visited by undergraduates looking for term paper help on topics like just war theory. Hope it's useful that way. Is that what law school deans should be looking for when trying to assess web-based scholarship?

Another random thought. I say explicitly at the top of this blog that it is all first draft stuff, and subject to changing my mind. Readers post comments that more than occasionally cause me to rethink things. However, blogs are taken by plenty of people not to be first draft, discussion, subject to revision stuff, but as something to cite as evidence of - well, I mean the "gotcha" moment. I got into a discussion in blog posts and comments with some folks over the definition of torture and interrogation policy last year - I found it all very annoying, not very scholarly, and definitely not enlightening - the tendency was to treat blog posts as statements in depositions for cross examination. Instead of trying to make sense of what was said, to advance the debate - it was, on the contrary, trying to twist phrases out of context - what litigators do all the time, naturally, but nothing of any scholarly value. Which may be another way of saying that it is a mistake to try and pursue moral philosophy with a lawyer in deposition mode.

I would probably stop blogging here if I thought what I said here was being looked at routinely by my colleagues at my law school - or I would turn it into essentially a web page for my scholarship - at a minimum there would be a lot more self censorship. I admire the measured, careful, deeply respectful tone of Opinio Juris - it is what a group blog should sound like when it is deliberately and admirably heterogeneous in its politics, and widely read by the profession. This blog isn't that, and if it were, I would definitely sound a lot more like it. I wouldn't write, for example, about what a shabby response Yale president Levin has given in the YaleTaliban case, for example. I would probably (probably!) include less Mark Steyn. I think people underestimate how much of what people say in blogs is tacitly on the assumption that, although not anonymous and theoretically in the open, nobody to whom you have to pay attention actually knows it exists or cares.

I like to blog in part because it gives me a place to chat informally about books that I read - I like to review books because I like to read them. I like knowing that someone can hook into this blog through google even though they have no interest in anything else on this blog except the weird post on Rene Char - my former Harvard student Adam Lewis, now at Debevoise, just dropped me a note to say he'd run across my blog looking for Rene Char stuff - hi Adam, and this is one of the very cool things about blogs - or my passion for the chamber music of Buxtehude.

Is blogging a time waster? On the one hand, it has given me a place where I do get feedback on stuff I am working on. On the other hand, I have three overdue articles - one on reciprocity and the laws of war, one on method and politics in international law scholarship, one on legislative responses in the war on terror, a short book manuscript on the UN, global civil society, and global governance. And a book review of Francis Fukuyama's Neo Con book for the TLS. And here I am chatting about blogs and future of legal scholarship!

Tuesday, April 25, 2006

Andrew McCarthy on prosecuting leakers and journalists in NRO

Andrew McCarthy has an interesting discussion of how to classify various kinds of leaker-journalist interactions for purposes of prosecution, in National Review Online, here.

April 25, 2006, 11:49 a.m.
National Review Online

Reporters and Investigations
There is no reason for delay in pursuing the CIA leak case.

National Review's Byron York sensibly asks: what are the next steps in the investigation into the intelligence community's leaking of classified information to the press, including the deeply sensitive detention arrangements for high-ranking al Qaeda captives (the so-called "black-site" prisons)? That disclosure profoundly harmed our nation's critical relationship with foreign intelligence services which have been assisting the war effort.

In connection with the internal CIA end of that probe, one intelligence officer, Mary O. McCarthy, has been terminated for unauthorized contacts with members of the media, including the Washington Post's Dana Priest. It was Priest who reported the black-sites story last year. Thus, it came as no surprise this weekend when several press accounts, including an Associated Press story published by the Post itself, identified McCarthy as a black-sites source.

McCarthy, however, has now flatly denied that this is the case, asserting that she did not even have access to such information. Today, the Post reports that at least one senior intelligence official familiar with the probe is supporting McCarthy's claims. Moreover, it is noteworthy that the CIA's public statements, while strongly suggestive of McCarthy's having leaked classified information, did not tie her directly to the black-sites disclosure.

Relying on the weekend's press reporting, which sourced law enforcement personnel in identifying McCarthy as a black-sites leaker but indicated that she was not the subject of a criminal investigation, I wrote an opinion piece Sunday asking why she had not been charged with a violation of the espionage act. It now looks like those reports may have been mistaken — or, at a minimum, premature.

If, as the CIA's public statements intimate, McCarthy has had several unauthorized contacts with the media — a pattern serious enough to have resulted in the extraordinary termination of a long-time CIA official who has held several key positions in the Agency — then it seems obvious that the Justice Department should be investigating her. But it is too soon to tell whether she should be charged with a crime. All leaking of classified information is inappropriate and may be cause for administrative discipline of the leaker, including dismissal. But not all such leaks are crimes, and whether McCarthy should be prosecuted will depend on what she has leaked. Ms. McCarthy may not deserve much of our sympathy, but she should not be tarred with something she didn't do.

Clearly, however, someone inside the intelligence community is responsible for the black-sites leak, and the ongoing investigation goes far beyond Ms. McCarthy.

As is now well known, during the investigation into the disclosure of Valerie Plame Wilson's apparently classified status as a CIA employee — which resulted in the indictment of one government official, I. Lewis ("Scooter") Libby, for allegedly misleading the investigation, but not for leaking classified information — independent counsel Patrick Fitzgerald used a methodical procedure. He first sought waivers of confidentiality from government officials who had spoken with the press, then used those waivers to compel journalists to provide information, and finally had one reporter, Judith Miller, jailed for contempt when she initially declined to comply with a grand jury subpoena for her testimony.

Should this investigative template be followed in the new, broader investigation of classified leaks by members of the intelligence community? It certainly should not, and here's hoping that it won't.


There are three possibilities when prosecutors deal with journalists: Category A is the usual situation in which reporters are merely the repositories of hearsay information from their sources; Category B is the unusual situation in which reporters are direct witnesses of crimes but have no culpability themselves; and Category C is the most rare situation of all, in which reporters are theoretically complicit in criminal activity.

The Plame/Fitzgerald investigation falls squarely into Category B. By contrast, the probe of intelligence community leaking (not only regarding black-site prisons, but also the NSA's terrorist surveillance program and other leaks that have damaged the war effort) falls into Category C.

Discerning between these categories is central. The Supreme Court has held that journalists do not have a privilege to withhold information from investigations — they have the same presumptive obligation as all other citizens to provide relevant information to grand juries and courts if asked to do so. That rule makes sense as long as government does not abuse it. Yet, it is undeniably in tension with the special role of the media in a functioning constitutional democracy to keep the public adequately informed.

Thus, in our system, some deference is plainly due to the press. But how much? The answer to that important question depends on which category applies.In Category A, journalists get the maximum amount of deference. They should almost never be subpoenaed for information in this case, and internal Justice Department regulations, which are enforced rigorously, discourage the compulsion of information from them. The reason is obvious: government should not infringe on First Amendment interests simply to use the press as a substitute for agents doing their jobs.
In Category A, government agents should be able to do exactly what the reporter has done: investigate the case and speak to the people with first-hand knowledge. In fact, government agents theoretically are better positioned to do it because they, unlike reporters, can issue subpoenas (authorized by grand juries or trial courts). To be sure, in a matter of grave urgency, it is legally permissible to subpoena the reporters. But that should happen only if the matter is extremely important and all other avenues of information have been exhausted — a situation that is very rare indeed.

In Category B, the journalist is no different from the ordinary citizen who witnesses a crime: he or she has an obligation to provide testimony to the grand jury if called on to do so.

Now, it is a salutary practice — in deference to the aforementioned First Amendment implications — for prosecutors to exhaust other potential avenues of information before turning to journalists. This avoids unnecessary intrusion on the media's important function. It is the practice that was followed in the Plame investigation. But it is not a mandatory practice. Any person with direct evidence of a possible crime — i.e., anyone, including a journalist, who was a first-hand witness to the illegal transaction under investigation — may be questioned. Period.
Under federal law, the passage of classified information by a government official can be a crime. Any reporter to whom it is directly communicated is, therefore, in no different a position from a reporter who happens to be standing inside a bank when it gets robbed. The reporter is a witness to a crime and it is perfectly appropriate to compel his or her testimony.


Finally, in Category C, journalists are owed no deference at all. Here, they do not stand as incidental witnesses, or even merely critical witnesses. Here, they stand as potential defendants. As such, they should be treated like any other criminal suspects. Which is to say, they can be prosecuted for any crimes they have committed.

More to the point, it is perfectly appropriate in Category C for the government to use the specter of prosecution as leverage to obtain cooperation from a journalist for the higher public purpose of bringing to justice the more culpable targets of the investigation. Where intelligence community leaking is concerned, those more culpable targets are the government officials who, in violation of their solemn oaths, are leaking the government's secrets — alarmingly, in wartime. Those more culpable targets inflict massive damage on our country, but they may be totally insulated from prosecution unless the reporter cooperates. Here, in other words, the reporter has acted irresponsibly, perhaps criminally, and is exacerbating matters by shielding more serious criminal actors.

Category C is not a close call: the reporter should be pressed for information — whether by appeal to his or her patriotism, by subpoena, by the threat of prosecution, or by indictment. The Justice Department owes no apologies for such tactics, notwithstanding the inevitable editorial caterwauling. It is the Department's duty to protect the American people by pursuing the leakers who imperil them. And in Category C, there is no good reason to delay until all other avenues can be exhausted.

The black-sites leak belongs in Category C. Some may claim it belongs in Category B because it is not as clear that publication was a crime in the black-sites scenario as it is, by contrast, in the NSA situation. That, so the argument goes, is because the federal law that specifically proscribes the "publish[ing]" of classified information, Section 798 of Title 18, U.S. Code, is carefully limited to classified information about signals intelligence. The NSA terrorist surveillance program is a wartime signals intelligence effort. The black-site prisons situation is not.

That rationale, however, reads the law incompletely. Another provision of the espionage laws, Section 793(e), expressly targets persons who: (a) have "unauthorized possession" of national defense information, (b) have reason to believe such information could be used to the injury of the United States or the benefit of any foreign nation, and (c) willfully communicate that information to others not entitled to have it.

This crime would clearly apply to a situation in which a reporter was improperly given classified information critical to the war effort and published it despite the obvious potential damage to American interests and benefit to nations opposed to our interests and policies. Which is to say: It is tailor-made for the black-sites leak.

The Washington Post published Dana Priest's story on the black-site prisons back on November 2, 2005. It has thus been about six months since this egregious compromise of national secrets involving the acquisition of intelligence desperately needed to protect American lives — information from top al Qaeda detainees about the terror organization's ongoing plots. Still, the Post reported this weekend that no one at the newspaper has yet been interviewed about the leaks.

Templates aside, if Americans are wondering what in the world is going on here — and, more to the point, whether any attempt has been made to question Ms. Priest about her intelligence community source(s), and if not, why not — that's a very good question.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.

Brian Urquhart on war, terror, and international law in the NYRB

Regular readers of this blog, if there are any, will understand that I agree with little either in the books or Brian Urquhart's review of them in the current New York Review of Books, here. (I leave aside Kinzer's historical accounts.) Urquhart, in a manner all-too-typical of both his own ossified thought about the heroic promise of international law and organizations and the general tone of the NYRB -"God addressing eternity" - cannot rouse himself to consider any arguments against his position or those of his favored authors, not even to make them and shoot them down. Surely there is a bit more to be said by way of argument, and not merely assertion, than that? But then assertion, not argument, is alas all that Urquhart's readership in the NYRB would seem to require ...


The Outlaw World

New York Review of Books
By Brian Urquhart

Lawless World: America and the Making and Breaking of Global Rules from FDR's Atlantic Charter to George W. Bush's Illegal War
by Philippe Sands
Viking, 324 pp., $25.95

Lawless World: The Whistle-Blowing Account of How Our Leaders Are Taking the Law into Their Own Hands
by Philippe Sands
Penguin, updated edition, 404 pp., £8.99 (paper; to be published in the US in September)

War Law: Understanding International Law and Armed Conflict
by Michael Byers
Grove, 214 pp., $24.00

Overthrow: America's Century of Regime Change from Hawaii to Iraq
by Stephen Kinzer
Times Books, 384 pp., $26.00

"A rule-based international society" may seem a lackluster phrase, but it describes, for those who wish organized life on this planet to survive in a decent form, the most important of all the long-term international objectives mankind can have. That international law has already been formulated to deal with a wide range of human activities is one of the great, if often unappreciated, achievements of the years since World War II. Yet the obstacles to its being effective are enormous. We all know that international law is often challenged by the caprices and diverging interests of national politics and that it still lacks the authority of national law. With a few important exceptions, international law remains unenforceable; when it collides with the sovereign interests or the ambitions of states, it is often ignored or rejected. It is still far from being the respected foundation of a reliable international system.

In the first years of the new millennium, and especially after the terrorist attacks of September 11, the development of international law has encountered an unexpected and formidable obstacle—the ideological opposition of the Bush administration, both to vital treaties and to international institutions. This attitude culminated in the 2003 invasion of Iraq without the specific authorization of the UN Security Council, and without allowing UN inspectors to complete their work. Prisoners captured by the US were denied the protection of the Geneva Conventions and were often treated brutally. It is therefore no surprise that the three very different books under review all end by deploring the United States' war for regime change in Iraq and the illegal abuses that have accompanied it.

It is ironic that such widespread criticism should be incurred by the US. From the Permanent Court of International Justice in The Hague, the Covenant of the League of Nations, and the Charter of the United Nations to the Universal Declaration of Human Rights and many UN conventions, the US has done more than any other country to develop and strengthen both the concept and the substance of international law. It is nothing less than disastrous that a United States administration should have chosen to show disrespect for the international legal system and weaken it at a time when the challenges facing the planet demand more urgently than ever the discipline of a strong and respected worldwide system of law. Those challenges include globalization at almost every level of human society, the deeply troubling evidence of climate change, and the linked threats of international terrorism and proliferating weapons of mass destruction. It is true that the United States remains broadly committed to the international rules on trade of the World Trade Organization and NAFTA, rules that are important to the United States not least because they protect the rights of US investors and intellectual property rights.


Philippe Sands is a practicing international lawyer and professor in London. Having been involved in many cases before the International Court of Justice in The Hague, he took part in the effort to deny Augusto Pinochet immunity in the UK and has represented the British detainees at Guantánamo.

Along with the other books under review, Sands's Lawless World provides a disturbing picture of the state of international law and the part, at times visionary, at other times destructive, that the US had in its development. Sands indicts the United States, with Tony Blair's complicity,[1] for abandoning its commitment to the post–World War II legal and institutional arrangements that both countries, more than anyone else, had put in place. "I am not starry-eyed about international law," Sands writes. "I recognize that it has frequently failed millions around the world and will continue to do so. But do recent events justify a wholesale change of approach?"
Before World War II, governments could act more or less as they wished in international affairs, provided they had the power to do so. This situation began to change radically when Roosevelt and Churchill proclaimed the Atlantic Charter on a battleship off the coast of Newfoundland on August 14, 1941, at a time when Nazi Germany appeared to be decisively winning the European war. This first sketch of the UN Charter and the international system that was to regulate the postwar world was based on three simple but revolutionary principles. First, states would recognize the obligation to refrain from the use of force in their international relations, and would resort to force only in self-defense or when authorized to do so by the international community—later to be represented by the UN Security Council. Second, they would maintain and respect the "inherent dignity" and "equal and inalienable rights" of all members of the human family. Third, they would promote economic liberalization and progress through free trade and other means.

The Atlantic Charter marked the beginning of the long process that led to the establishment of the UN, the various UN specialized agencies, the World Bank and the International Monetary Fund, the General Agreement on Tariffs and Trade (which after forty-five years became the World Trade Organization), and the 1948 Universal Declaration of Human Rights (in Sands's words "arguably the single most important international instrument ever negotiated"), as well as the Geneva Conventions of 1949 and 1977.

Further steps toward establishing an international institutional and legal order continued with the 1957 International Atomic Energy Agency in Vienna, which has now become an important monitoring and inspection agency; the Nuclear Non-Proliferation Treaty and other arms control conventions; environmental law and institutions; and now the International Criminal Court, and the beginning of a system of legal obligations for states related to the prevention and suppression of international terrorism.[2]

Throughout Lawless World Sands's main preoccupation is the damage that current United States policies and actions may do to the respect for international law and its authority, both of which may be decisive in dealing effectively with the global challenges that lie ahead. His concern is well justified. As he notes, the 1997 manifesto of the neoconservative organization Project for the New American Century, signed by such people as Dick Cheney, Paul Wolfowitz, Donald Rumsfeld, and Scooter Libby, proclaimed that the detention of Augusto Pinochet,[3] the new International Criminal Court, and the Kyoto Protocol on global warming were all threats to American security. John Bolton, now United States ambassador at the UN, said at the time that treaties were simply political acts and "not legally binding." Richard Perle declared publicly in April 2003 that the war in Iraq provided an opportunity to refashion international law and undermine the United Nations.

Sands is particularly concerned about the frenzied opposition of the Bush administration to the new International Criminal Court, which has been accepted by one hundred other nations and is now investigating the current genocide in Darfur.[4] The Bush administration, he writes, is using the ICC as "a useful stalking horse for a broader attack on international law and the constraints which it may place on hegemonic power."

As for the rejection of the Kyoto Protocol, Sands recalls with nostalgia that in 1970, another Republican president, Richard Nixon, signed into law the National Environmental Policy Act, the world's first comprehensive attempt to protect the environment. The UN Charter makes no mention of rules governing the environment. Nixon vigorously supported an environmental program within the UN, and just before the UN's first global conference on the environment in Stockholm in 1972, he proposed a World Heritage Trust to protect regions of such unique worldwide value that they should be treated as part of the heritage of all mankind.[5] The United States was also a leader in adopting the first measures, taken under the Reagan administration in the 1980s, to counteract the depletion of the ozone layer; it did so against the opposition of European governments that were worried about possible unfavorable economic consequences.

Since 1990, when the report of the UN's International Panel on Climate Change revealed a deadly potential threat to islands and other low-lying regions that clearly called for a timely global response, Sands himself has been deeply involved in such issues.[6] He makes it clear that short-term economic considerations have so far taken precedence over the enormous long-term risks involved in doing too little about climate change.

As he points out, the United States and OPEC initially opposed an international convention on climate change or any timetables to reduce and stabilize the emission of greenhouse gases. A preliminary convention, in a very modest form, came into force in 1994. In 1997 the Kyoto Protocol marked a real commitment to action and provided a basis for more far-reaching measures. In signing it President Clinton praised the protocol as a major step forward. Sands writes that Clinton was then informed somewhat mystifyingly by former Secretary of Defense Dick Cheney and a number of other Regan and Bush officials that the protocol would "hamstring" American military operations and undermine American sovereignty. The Bush administration soon "unsigned" the Kyoto Protocol, claiming among other reasons that the scientific verdict on global warming was not yet in. Alone of all industrialized states, the United States and Australia have not ratified the protocol. Whatever its defects in not adequately controlling emissions from the large Asian economies, it remains an essential preliminary step toward limiting climate change.

The invasion of Iraq that started in March 2003 arouses Sands's deepest objections to what he sees as an unwarranted assault on international law. The invasion itself, without benefit of Security Council authorization, was a blow to the essential basic principle contained in Article 2.4 of the UN Charter, which reads:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Sands is equally concerned with the violation of international laws in connection with the conduct of the war. In the Guantánamo prison hundreds of alleged "killers," "terrorists," or "unlawful combatants," as they have been variously designated by the United States, have been deliberately put, he writes, into a "legal black hole," from which most of them are unlikely to emerge anytime soon. The basic principle of habeas corpus has seldom if ever taken such a beating at the hands of a leading democracy. The atrocities at Abu Ghraib and elsewhere are plainly in violation of the Geneva Conventions and the UN Convention against Torture. They also set a terrible precedent for the future treatment of captured Americans.

The 1899 Hague Convention, which puts limits on methods of interrogation of prisoners of war; the four 1949 Geneva Conventions, which deal, among many other matters, with treatment of prisoners; and Article 75 of the Geneva Protocol I of 1977 mean, in Sands's judgment, that "no person can ever fall outside the scope of minimum legal protections" against violence, torture, threats of torture, outrages against personal dignity includ-ing humiliating and degrading treatment, and any form of indecent assault. This list certainly describes what happened in Abu Ghraib and other prisons.

Of course these rules have often been violated by other states, but the United States, since 2001, is unique in claiming, in the words of Deputy Assistant Attorney General John Yoo in 2002, "What the Administration is trying to do is create a new legal regime." This was also presumably the basic notion behind Bush's proclaiming the right to resort unilaterally to preventive war as part of his new national security strategy. To minimize legal constraints on the United States and to extract information from prisoners, Alberto Gonzales, then White House general counsel and now attorney general of the United States, urged the President to declare that the Geneva Convention III of 1949 did not apply to al-Qaeda or the Taliban. "This new paradigm," Gonzales wrote in January 2002, "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions...."

Although Guantánamo, because it was not in US territory, was chosen partly to avoid such interference, from time to time the US judiciary has tried to stem the administration's flood of expedient revisionism. A federal judge halted the first hearing, after nearly three years, before a special military commission established to try non-American Guantánamo prisoners. He did so on the grounds that the proceedings lacked the basic elements of a fair trial and violated the Geneva Conventions.

Sands is particularly good at picking, from an amazing wealth of material, quotations that capture the eerie atmosphere of the Bush administration in the midst of a war of choice and an unprecedented assault on international law. On the Guantánamo inmates, for example, he quotes Cheney as saying, "They're living in the tropics. They're well fed. They've got everything they could possibly want."

Sands's discussion of the period preceding the second Iraq war are particularly interesting in charting Bush's relatively unobstructed path to war as compared with Tony Blair's far more difficult one. Sands shows that both leaders engaged in much dissembling and tinkering with the truth. He describes the content of the so-called "Downing Street memo," which caused a considerable stir on both sides of the Atlantic when it was later published in full in the London Sunday Times and in these pages.[7]

On March 27, 2006, The New York Times reported on another "extremely sensitive" British memo describing Bush and Blair's private two-hour meeting in the Oval Office in January 2003, of which several highlights were first published in the later edition of Sands's book. The sometimes bizarre quality of these talks make one long for the publication of the full five-page text. Bush apparently suggested provoking a confrontation with Saddam Hussein by painting a US surveillance plane in UN colors in the hope of drawing Iraqi fire. The basic theme of the meeting was Bush's determination to go to war in early March regardless of Security Council resolutions, the findings of UN inspectors, or anything else.[8]

About the performance of the UN Security Council concerning Iraq, Sands concludes:
The simple fact is that the great majority of states who sat on the Security Council in March 2003 did not consider that the circumstances, as they were then known to be, could justify the use of force. History has shown that they were right and that the US and Britain were wrong. No WMD have been found. It could be said that the UN system worked. No amount of bullying by two permanent members could buy the votes they wanted.

He could have added that had the inspections been allowed to continue, war probably could have been avoided, with all credit being given to the US for putting the necessary pressure on Saddam Hussein. Instead, the ostensible reason for the US invasion was changed from the alleged threat of WMDs to regime change. Moreover, as Hans Blix reminded the Security Council after inspectors had reached preliminary conclusions about the absence of WMDs, "international inspections and monitoring systems were to stay in place."


Michael Byers states that the objective of his book is to "provide the interested non-lawyer with a readily comprehensible overview of the law governing the use of force in international affairs." Clear and informative, his account is particularly valuable at a time when there is a worldwide debate, arising largely from the Iraq situation—but also relevant to the genocide in Darfur—about the circumstances in which it is legally appropriate for one country to use force against another or for international intervention on humanitarian grounds.

Byers's discussion of self-defense, the justifying condition for the unilateral use of force in the UN Charter, takes up more than half his book. He goes back to the case of the steamship Caroline, which was hired in 1837 by a private militia to ferry men and supplies across the Niagara River to support a Canadian rebellion against the British. The British set the ship on fire and floated it over Niagara Falls, later claiming that they did so in self-defense and that their action was justified on political grounds. When the dispute was finally, and amicably, settled in 1842, the American secretary of state, Daniel Webster, conceded that the use of force in self-defense could sometimes be justified as a matter of necessity, but that nothing "unreasonable or excessive" could be done in self-defense.

These criteria—"necessity and proportionality"—were widely accepted as the requirements of a new international legal right to self-defense. Byers emphasizes the importance of this precedent as showing that a country could defend itself without declaring war, and that peace could be maintained even when the right to self-defense was exercised; he traces the development of this concept up to the present time.

The United Nations was the first international organization to combine in its charter the three main rules for maintaining peace: prohibition on the use of force in international affairs (Article 2.4); a provision for the use of force by the Security Council against threats to the peace and acts of aggression (Chapter VII); and an exception for the use of force by governments in self-defense (in Article 51). But the plea of self-defense, as Byers shows, can be complex when it involves forceful action beyond a nation's own territory.

For example, in 1976 an Air France plane with many Israeli passengers aboard was hijacked by Palestinians and taken to Entebbe in Uganda, where non-Jewish passengers were released. Facing a deadline for meeting the hijackers' demand for the release of fifty-three Palestinian terrorists, an Israeli commando team, led by Jonathan Netanyahu, killed the hijackers, rescued the Israeli hostages, and flew them back to Israel. Netanyahu himself was killed. This action is now credited as a precedent for extending the right of self-defense to protecting nationals abroad.

In April 1993 an attempt to assassinate former President George H.W. Bush in Kuwait was thwarted by the discovery of a sophisticated car bomb. When Iraq's involvement in this attempt was established, President Clinton ordered the destruction of Saddam Hussein's Military Intelligence Headquarters in Baghdad by twenty-three Tomahawk missiles. The Security Council did not censure this action, although the use of force without Council authorization was condemned by the Arab League.

The Council did not even consider President Clinton's response to the destruction by terrorists of the US embassies in Tanzania and Kenya when he fired seventy-nine Tomahawk missiles at al-Qaeda training camps in Afghanistan and also at a pharmaceutical plant in Sudan suspected of making chemical weapons for terrorists. Moreover, by authorizing the US-led operation against the Taliban in Afghanistan after September 11, the Security Council also set a precedent for using force against a state harboring terrorists, provided that the terrorists had previously attacked the state concerned.

On the even more controversial question of preemptive self-defense, Byers cites the case of Israel's 1981attack on Iraq's French-built Osirak nuclear reactor, which the Council unanimously condemned as a grave breach of international law. Byers writes that George W. Bush's policy claiming the right of the United States to use unilateral, preemptive force—widely considered a dangerous example that other states may try to emulate —clearly violates the common-sense criteria of the Caroline case for self- defense. He believes that such a pol-icy as Bush's, if maintained, could even serve as an incentive to some states to try to acquire a nuclear deterrent in self-defense. He quotes the response of the UN Secretary-General's High-Level Panel on Threats, Challenges and Change to Bush's claim of the right of preemptive self-defense:
...In a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.

Byers then examines the current legal status of the relatively recent issue of humanitarian intervention and the obligation to protect populations in distress, even from the actions of their own governments. One of the most important decisions of the UN Summit Meeting of September 2005 was to give a general, although highly qualified, approval to such interventions. But as Byers points out, while Kofi Annan reiterates that the "security situation in Darfur continues to deteriorate and the moral case for action is overwhelming," the Security Council has so far agreed only to deploying a UN peacekeeping force later this year to take over from the existing African Union force, a move strongly opposed by the Sudanese government. The Council has also, as mentioned above, referred the Darfur case to the International Criminal Court.

Byers's closing chapters on the protection of civilians and prisoners of war, and on the various UN international tribunals, are characterized by mounting frustration at the US administration's contemptuous attitude toward international law and legal institutions. Of the Bush administra- tion's obsessive hostility toward the recently established International Crim- inal Court he writes:

Only the United States has actively endeavoured to undermine the court. With troops in more than 140 countries, a propensity to intervene under dubious legal circumstances, and interpretations of the laws of war that sometimes differ from those of other states, the single superpower feels vulnerable to international mechanisms for enforcing international criminal law. Whereas the Clinton Administration sought to negotiate protections against the abuse of international procedures into the statutes of the tribunals it helped to create, the Bush Administration has adopted an entirely hostile stance....

Since coming to office, President Bush has "un-signed" the ICC statute, pressured the UN Security Council into temporarily exempting US forces from the Court's jurisdiction, and obtained more than ninety bilateral treaties committing individual countries not to surrender US citizens to The Hague. Bush has even signed legislation that authorizes him to use military force to secure the release of any US service member detained by the ICC. The law is popularly known as "The Hague Invasion Act."

Since under the present ICC statute it is virtually impossible that the Court would detain a US soldier, this exceptional—even paranoid—brand of US exceptionalism can only add to the frustration of the nations seeking a fair and workable international legal system.
When the UN Preparatory Commission was setting up the world organization in London in the fall of 1945, the European colonial powers could sometimes scarcely contain their resentment of what they saw as the self-righteous attitude of the US delegation toward European colonialism and its abolition. Their resentment occasionally took the form of rather feeble allusions to the fate of American Indians; but I cannot recall a single reference to America's many efforts at regime change in the fairly recent past. These actions are the subject of the first part of Overthrow, Stephen Kinzer's wonderful chronicle of America's interventions in foreign countries.
Kinzer describes three periods of American intervention: first the "Imperial Era" between 1893 and 1910 (in Hawaii, the Philippines, Cuba, Puerto Rico, Nicaragua, and Honduras); second, the "Covert Action period" between 1953 and 1973 (in Iran, Guatemala, South Vietnam, and Chile); and third, the "Invasions" since 1983 (in Grenada, Panama, Afghanistan, and Iraq). The original announced aim was to help anti-colonial patriots to achieve success, as in Cuba and the Philippines; and then, to the patriots' surprise, the US would establish an authoritarian protectorate. The reasons for doing so were usually presented as extending the advantages of American democratic principles and protecting US security. In practice, as Kinzer shows, the principal aims were to establish the right of US business to act as it wished, to satisfy a new national ambition for expansion, and to add to the strength of the US economy.
Kinzer quotes a letter from John L. Stevens, the American minister in Honolulu, on January 16, 1893, to Captain Gilbert Wiltse, the commander of the cruiser Boston. He comments, "Its single sentence is a dry classic of diplomatic mendacity, full of motifs that Americans would hear often in the century to come." The letter reads:

In view of the existing critical circumstances in Honolulu, indicating an inadequate legal force, I request you to land marines and sailors from the ship under your command for the protection of the United States legation and the United States consulate, and to secure the safety of American life and property.

That, effectively, was the end of the courageous Queen Liliuokalani's resistance to the American annexation of Hawaii.

Although there were impassioned opponents of such actions in the United States, William James among them, Kinzer shows that the expansionist mood of the 1890s was already producing justifications that sound all too familiar today. American presidents and military officers, then as now, said they were intervening in struggles of "good and evil" for humanity's sake and had God's guidance in doing so. "The parallels between McKinley's invasion of the Philippines and Bush's invasion of Iraq were startling." Kinzer writes:

Both presidents sought economic as well as political advantage for the United States. Both were also motivated by a deep belief that the United States has a sacred mission to spread its form of government to faraway countries. Neither doubted that the people who lived in those countries would welcome Americans as liberators. Neither anticipated that he would have to fight a long counterinsurgency war to subdue nationalist rebels. Early in the twenty-first century, ten decades after the United States invaded the Philippines and a few years after it invaded Iraq, those two countries were among the most volatile and unstable in all of Asia.

Kinzer's book is particularly enlightening about the consequences of such unilateral interventions. He writes:

If it were possible to control the course of world events by deposing foreign governments, the United States would be unchallenged. It has deposed far more of them than any other modern nation. The stories of what has happened in the aftermath of these operations, however, make clear that Americans do not know what to do with countries after removing their leaders. They easily succumb to the temptation to stage coups or invasions but turn quickly away when the countries where they intervene fall into misery and repression.

Brushing aside fifty years of international law in the name of the "global war on terrorism" is a bad idea for everyone, including the United States. Violating global rules undermines both America's authority and standing and its long-term strategic interests. An already globalized and interdependent world cannot permit a return to a situation where each nation is entirely free to act as it wishes.

To use Sands's words, the United States, like other countries, badly needs international agreements and international cooperation to promote and protect its own interests, and cooperation requires rules. The conclusion seems plain: the United States should reengage in respecting and developing the rule-based system that it largely initiated after World War II and which has for many years served it well.

Such an approach could certainly not have worse consequences than the recent attempt to abandon the idea of international restraint and go it alone. Some US administrations have vigorously supported international regulation in the past. On April 1, 2005, Secretary of State Condoleezza Rice told the annual meeting of the American Society of International Law that the US "has been and will continue to be the world's strongest voice for the development and defense of international legal norms." She added that America "has historically been the key player in negotiating treaties and setting up international mechanisms for the peaceful resolution of disputes." As Sands comments, "These are important words, but they remain just that."

A more down-to-earth perception of the situation was expressed in May 2004 by US Senate Foreign Relations Committee Chairman Richard Lugar, who was speaking of the US Senate's delay of some ten years in acceding to the Law of the Sea Treaty, a delay largely caused by those Americans who have argued that the treaty restricts the exploration and exploitation of the seabed. Lugar posed the question that the US has still to face:

If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multi-lateral solution to any international problem is likely to be accepted within the US policy-making structure.[9]


[1] In a later, paperback edition published by Penguin in the UK in early 2006 and to be published in the US in September, Sands has added a chapter on how the British attorney general, Lord Goldsmith, during March 2003, came to change his advice against going to war in Iraq without a second enabling Security Council resolution. Whereas he had previously said that the legality of military action without a second Security Council resolution was "only reasonably arguable" and "would probably fail in a court of law," he then reversed himself and produced a clear and positive opinion a few days later. This second opinion was of particular importance to Admiral Sir Michael Boyce, the UK chief of defense staff, who had demanded a clear and unequivocal legal opinion before committing troops to the invasion of Iraq.
[2] Secretary-General Kofi Annan has outlined the elements of a UN strategy on terrorism as follows: first, to dissuade disaffected groups from choosing terrorism as a tactic to achieve their goals; second, to deny terrorists the means to carry out their tasks; third, to deter states from supporting terror-ists; fourth, to develop state capacity to prevent terrorism; fifth, to defend human rights in the struggle against terrorism. See Javier Ruperez, "The Role of the United Nations in the Fight Against Terrorism: A Provisional Balance," Perceptions, Summer 2005.
[3] Sands characterizes the denial of Pi-nochet's immunity under English law as "a transforming event in international law." Since that time, two former heads of state, the late Slobodan Milosevic of Yugoslavia and Charles Taylor of Liberia, have been brought before international tribunals for crimes against humanity.
[4] Faced with the Security Council's inability to agree on stronger measures to end the genocide in Darfur, the United States did not block the referral of the Darfur case to the International Criminal Court. The Court's chief prosecutor, Luis Moreno Ocampo, is now engaged in building a case against those responsible for the atrocities in Darfur. See Elizabeth Rubin, "If Not Peace, Then Justice," The New York Times Magazine, April 2, 2006.
[5] The trust now protects more than seven hundred cultural and heritage sites, from Kew Gardens outside London to the Galapagos Islands six hundred miles off the coast of Ecuador.
[6] In 1989 Sands created a public interest law firm to provide free legal assistance to developing countries on environment and development. With a grant from the Ford Foundation it provided free legal assistance on global warming to a group of some forty island states mainly from the Pacific and the Caribbean. The group eventually organized itself into the Alliance of Small Island States.
[7] See The New York Review, June 9, 2005. The memo has now been published with other documents in Mark Danner, The Secret Way to War (New York Review Books, 2006).
[8] See Don Van Natta Jr., "Bush was Set on Path to War, Memo by British Adviser Says," The New York Times, March 27, 2006.
[9] Senator Richard Lugar, "The Importance of Acceding to the Law of the Sea Convention,"address at the Brookings Institution, May 4, 2004.

Monday, April 24, 2006

Christopher Hitchens on Mary O. McCarthy, fired CIA leaker

Christopher Hitchens in Slate on the Mary McCarthy CIA leak case, here:

Joseph Wilson's Revenge
Why no special prosecutor for the latest CIA leak case?

By Christopher Hitchens
Posted Monday, April 24, 2006, at 1:31 PM ET

If Mary O. McCarthy should ever be so desperate as to need a character witness, or to require one so badly that she must stoop to my level, I declare in advance that I shall step forward pro bono. I am quite willing to accept that whatever she did or did not do or say about the surreptitious incarceration of al-Qaida suspects overseas (and let's not prejudge this), she did it from the most exalted motives.

I accept this because, however much of her hard-earned money she threw away on making a donation to the John Kerry presidential campaign, she is obviously more than a mere partisan. Back in 1998, she wrote a formal memo to President Clinton about his decision to bomb the Al-Shifa factory outside Sudan's capital of Khartoum. I wrote a slew of articles at the time to prove that this wild Clintonian action was wag-the-doggery, pure and simple. (You can look it up if you like in my book No One Left To Lie To.) At that time, I interviewed a number of CIA people, both on and off the record, and came to the conclusion that it was the wrong factory in the wrong place and had been blitzed mainly because of Clinton's difficulties with Monica Lewinsky. The clincher was the direct plagiarism of his own hysterical speech of justification from the glib speech delivered by Michael Douglas, trying to de-knicker Annette Bening in the mediocre film The American President. If George Bush had even tried to pull anything like this, he would have been impeached by now, or so I hope.

Several senior CIA officials, and people in other departments, also let their dissent be known. I might instance Jack Downing, head of the agency's directorate of operations as well as the chief of the Africa bureau, and also Milton Bearden, veteran of many a covert op in Africa, who agreed to be interviewed by me for the record. On Oct. 27, 1999, the New York Times got around to publishing an article by James Risen in which it was made plain that Madeleine Albright had suppressed a report from the State Department's Bureau of Intelligence and Research casting grave doubt on the Al-Shifa intelligence. The only person who still maintains that the factory was Osama Bin Laden's place for mixing Saddam Hussein's chemicals is Richard Clarke, who has been rather quiet on that subject lately. (He could well have been right at that, but not about this particular factory: See my Slate article on Clarke's Sudan contradictions.)

That was an exceptionally rich harvest of high-level disagreement overridden by a sitting president. And it strengthened the case for, to put it no higher, more "transparency" in the famously overpaid and underperforming CIA. This case has become no weaker, to say the least, in the years of George Tenet and other Clinton holdovers who left us under open skies on Sept. 11, 2001.

But now, instead of being rewarded for her probity, Mary McCarthy has been given the sack. And the New York Times rushes to her aid, with a three-hankie story on April 23, moistly titled "Colleagues Say Fired CIA Analyst Played by the Rules." This is only strictly true if she confined her disagreement to official channels, as she did when she wrote to Clinton in 1998. Sadly enough, the same article concedes that McCarthy may have lied and then eventually told the truth about having unauthorized contact with members of the press.

Well! In that case the remedy is clear. A special counsel must be appointed forthwith, to discover whether the CIA has been manipulating the media. All civil servants and all reporters with knowledge must be urged to comply, and to produce their notes or see the inside of a jail. No effort must be spared to discover the leaker. This is, after all, the line sternly proposed by the New York Times and many other media outlets in the matter of the blessed Joseph Wilson and his martyred CIA spouse, Valerie Plame.

I have a sense that this is not the media line that will be taken in the case of McCarthy, any more than it was the line taken when James Risen and others disclosed the domestic wiretapping being conducted by the NSA. Risen's story is also the object of an investigation into unlawful disclosure. One can argue that national security is damaged by unauthorized leaks, or one can argue that democracy is enhanced by them. But one cannot argue, in the case of a man who says that his CIA wife did not send him to Niger, that the proof that his wife did send him to Niger must remain a state secret. If one concerned official can brief the press off the record, then so can another.

It has long been pretty obvious to me that the official-secrecy faction within the state machinery has received a gigantic fillip from the press witch hunt against Lewis Libby and Karl Rove. What bureaucrat could believe the luck of an editorial campaign to uncover and punish leaking? A campaign that furthermore invokes the most reactionary law against disclosure this century: the Intelligence Identities Protection Act? It was obvious from the first that the press, in taking Wilson and Plame at their own estimation, was fashioning a rod for its own back. I await the squeals that will follow when this rod is applied, which it will be again and again.

Joseph Wilson update: In my article last week on Wilson's utter failure to notice the visit of Saddam Hussein's chief nuclear diplomat to Niger, I mentioned his substitution of another Iraqi name—Mohammed Saeed al-Sahaf—as having just possibly approached some Niger businessmen and officials at an OAU summit in Algeria in 1999. Sahaf is now better known to us as the risible figure of "Baghdad Bob," which allowed Wilson to make mock of the whole thing. It is almost irrelevant when set beside the visit of Wissam al-Zahawie to Niger itself the same year, but at the time he attended the Algiers meeting, "Baghdad Bob" was—as I ought to have known and have since found out—Saddam Hussein's foreign minister. This fact is not mentioned in Wilson's terrible book, either. And Sahaf still had time to meet with some people from a tiny African state known only for its uranium!

(Christopher Hitchens is a columnist for Vanity Fair. His most recent book is Thomas Jefferson: Author of America. His most recent collection of essays is titled Love, Poverty, and War.)

Wednesday, April 19, 2006

Victor Davis Hanson on immigration and assimilation - France and the US

Victor Davis Hanson writing on immigration and assimilation, comparing France's Muslims and the US's Mexicans. In the Claremont Review of Books, here. Volume VI, No. 2, Spring 2006. See also the Claremont Institute's series of essays on citizenship, here, in its "Becoming Americans" series.

France's Immigrant Problem - and Ours

By Victor Davis Hanson

Posted March 24, 2006

This essay appeared in the Spring 2006 issue of the Claremont Review of Books.

The three weeks of Muslim rage across France during autumn 2005 brought Schadenfreude to many Americans. They saw a thin scab of French hypocrisy scraped off—revealing a deep wound of invidious religious and racial separatism festering in Muslim ghettoes. As during the August 2003 heat wave that killed nearly 15,000 French elderly in stifling apartments while their progeny enjoyed their state-subsidized vacation at the beach or mountains, French talk of solidarity and moral superiority proved spectacularly at odds with the facts.

So for much of last October and November, Americans congratulated themselves that French-style rioting could, of course, never happen in the United States. After all, their economy is moribund. Ours is growing at well over 3% per year. French unemployment hovers near 10%; America's is half that. Fifty-seven million jobs were created in the U.S. during the past 30 years; only 4 million in all of Europe. Our minority youth, as a result, are much more likely to be working than idling in the streets. And sure enough, in France, about 25% of youths between 15 and 24, regardless of race or religion, are out of work.

After the unrest in our cities during the 1960s and 1970s, Americans increasingly sought through assimilation, intermarriage, and integration to fulfill the ideal of an interracial society. As emblems of our success, Americans can point to cabinet members like Colin Powell, Condoleezza Rice, or Alberto Gonzalez. By contrast, it is almost unimaginable that anyone of Arab-French ancestry would head a major French ministry. We long ago jettisoned the notion that proper citizens should necessarily look like Europeans. The French apparently still have not. Second- or third-generation spokespersons of the American Hispanic community, for instance, are often successful, affluent, and integrated. By contrast, imams who barely speak French after decades of living there, and who from their 1,500 mosques decry the decadence of French culture, were often the only intermediaries between the French government and youthful rioters.

The accepted view is not just that the American melting pot differs from European separatism, but that the largest bloc of our immigrant residents is itself quite different—Christian Mexicans who trek across a common 2,000-mile unfenced border, eagerly looking for work. France's Muslim immigrants bring with them age-old, clash-of-civilizations baggage dating from Poitiers in the 8th century to the 20th-century French colonial war in Algeria. In contrast, Mexico was colonized by European Christians—and we have had more or less stable relations with the Mexican government for over a century. Moreover, even illegal-alien drug smugglers and gangbangers are not terrorists; we do not fret about their potential sympathy for radical Islam. And the rioters outside of Paris were almost all males, apparently embracing strict gender separation—antithetical to French culture, and utterly foreign to Mexican immigrant men and women, who cross our border indistinguishably.

All's Not Well

Yet such contrasts are not the entire story. For despite the many differences, America is not immune from all the destructive social and cultural forces now tearing at the seams of French society. Hundreds of thousands of first-generation illegal aliens currently live in Los Angeles and rural California in what are, in effect, segregated communities. In many cases, they are no more integrated—and no less alienated—than those in the French suburbs. Instead, these immigrants comprise an entire underclass without sufficient language skills, education, or familiarity with their host country to integrate successfully into society, much less to pass on capital and expertise to ensure that their children are not condemned to perpetual menial labor.
Spanish has become the de facto language for many communities in the southwest U.S. in the same way that Arabic dominates the French suburbs. Mexico City newspapers air the same sort of historical gripes and peddle the same kind of myths as Arab fundamentalists, who drug their poor, uneducated expatriates with stories of al-Andalus and a restored caliphate that will spread once again from southern Europe to the Euphrates.

In some respects, our situation is worse than France's. The United States has some 8-12 million illegal aliens—a population of unlawful residents larger than that of any other country in the Western world—not France's 4-7 million mostly Arab-French citizens. Ten thousand Muslim youths rioted outside Paris; but there are nearly 15,000 illegal-alien felons from Mexico in the California penal system alone, incarcerated at a cost of almost a half billion dollars a year. Portions of the Arizona and California borders have devolved into a Wild West—a no-man's-land of drug smuggling, shoot-outs, environmental desecration, and random death. Mexico responds by publishing comic books with safety tips about crossing the border, so that its departing citizens can more safely violate U.S. immigration laws. Meanwhile, Hispanic groups in America complain that increased border surveillance near San Diego has cruelly diverted human traffic into the desert.

Granted, Americans have proved far more adept at assimilating the Other than have the French; we have not suffered widespread racial or ethnic violence since the 1992 Los Angeles riots. And we do not have a religious or terrorist overtone to our internal tensions. But there are still enough similarities with the French experience to give us pause.

Immigration and Its Discontents

In the first place, poor Mexicans come to the U.S. for largely the same reasons that Arabs settle in France (and both were initially welcomed by their hosts). Mexicans and Arabs alike flee corrupt Third World societies and grinding poverty. At least in the beginning, they trust that unskilled and often menial employment in the West—under the aegis of a far more liberal welfare state and the rule of law—are better than anything back home. Perhaps at first such jobs are considered an improvement. But by the second generation, the paradox becomes apparent: employers hire migrants and their children expressly on the premise that they will work for lower wages than the natives would accept. If employers were to pay competitive compensation and provide full benefits, there would be little need for immigrants, since in many counties where illegal aliens reside there are enough unemployed non-immigrants to fill such jobs. In America as in France, the society eventually must pay the difference through greater state entitlements to subsidize an (often persistent) underclass.

So the reasons that Mexicans' and Arabs' rates of poverty, alcoholism, incarceration, reliance on entitlements, and high school drop-out are far higher than those of the host population are similar: in a globalized economy, manual labor in the West is now rarely unionized, respected, well-paying, or lasting. Nor are such jobs often looked upon, as they once were, as a sort of entry-level apprenticeship in which character and discipline are inculcated, in which young people gain education and experience before moving up the employment ladder.

Much of the work offered to immigrants remains in the service sector—cooking food, making beds, cutting lawns, cleaning toilets—jobs that become galling for the perennially second-class citizen in constant proximity to his more affluent host, whom he must serve while never quite receiving the compensation or respect he believes is warranted. Such jobs tend to come and go without breeding loyalty on either side. This is why the French-Arab unemployment rate (nearly 20%) is twice the national average, and why nearly one-third of California's Mexican immigrant households are on public assistance. In each case, foreigners are welcomed in due to a perceived shortage of labor, but their families eventually end up either unemployed or on public assistance at much higher rates than non-immigrant households.

Many in the second generation lap up their parents' bitterness, but without the consolation that things are still better in the West than back home. This is one reason that nearly four out of every ten Hispanic high school students are not graduating from high school in four years. Of those that do, only 22.9% meet the minimum entry requirements of the California State University system, the less competitive of the state's two systems. Of Latinos of all statuses in California, less than 10% of those over 25 have bachelor's degrees—a legacy of their parents who in many cases came to the state without English, without education, without lawful entry, and without well-paying, secure jobs. In some sense, the anger of the tattooed gang member who ends up in San Quentin is not that different from the rage of the car-burning Muslim in the Paris suburbs. Both are resentful; have sufficient entitlement aid to indulge the appetites but insufficient skills to earn a good living; and are eager to blame society for their frustrations.
In short, the absence of fluency in the host language, little or no education beyond high school, and retention of much of their home country's culture all conspire to keep millions of unassimilated immigrants—in both France and the U.S.—stuck in ethnic enclaves and static jobs that usually don't pay enough to ensure a middle-class existence for larger-than-average families. This is true even without the specter of prevailing racism and undeniable discrimination. And by middle age their physically demanding jobs often leave such workers injured, ill, or disabled.

The Politics of Resentment

The problem is not that it is impossible for thousands of maids, street sweepers, fruit pickers, and gardeners to move up to become electricians, small contractors, and government officials, in either France or the U.S. But the pool of newly arrived young immigrants who cannot advance quickly is so large—and growing—that our failures in upward mobility overshadow our successes. In postmodern societies, the number of immigrants is a force multiplier, inasmuch as near-instant parity for all is taken to be the only benchmark of success. Therefore the collective failure of millions is far more relevant politically than the individual success of thousands.
If Islam bolsters resistance to assimilation on the part of French immigrants from the Maghreb, illegality alienates Hispanic immigrants whose cars, taxes, and official documentation exist in a netherworld off the books. Hence many Hispanic youths—like the Arab population of France, but unlike the Cuban, Korean, or Sikh populations in the U.S.—embrace varying degrees of ethnic chauvinism to decry de facto inequality.

Consider, for example, the radical agenda of some of the most vocal ethnic separatists. The slogans of MEChA (El Movimiento Estudiantil Chicano de Aztlan)—"Everything for the race. Nothing for those outside the race." (Por La Raza todo. Fuera de La Raza nada.)—do not differ much from Islamic nationalists' sentiments in Europe.

Those embarrassed by such racist mottos argue that ethnic triumphalists in the U.S. are ossified relics of the 1960s, and have tempered their rhetoric in the 21st century. Yet ponder the following essay from Ernesto Cienfuegos on the website La Voz de Aztlan ("The Voice of Aztlan") in the wake of the French rioting:

Today, here in Los Angeles, we are already seeing ominous signs of an impending social explosion that will make the French rebellion by Muslim and immigrant youths seem "tame" by comparison. All the ingredients are present including a hostile and racist police as in France. In fact, we came close to having major riots on three separate occasions just this year alone…. There is a strange feeling here in Los Angeles that something sinister is about to happen but no one knows when. All it will take is for a "bird-brain cop" to do something stupid and all hell will break loose. If another major rebellion breaks out here in L.A. it could rapidly spread throughout the USA as it has spread in France…. The social and economic conditions that exist in France that adversely affect its immigrant and Muslim populations also exist here in the USA…. The rebellion that is occurring in France can and will most probably happen here.

The largest Hispanic grievance association is still called the National Council of La Raza ("the Race"), a well-meaning organization that nevertheless appeals to racial solidarity and purity and therefore separatism—a clear repudiation of the idea of American multiracialism. Its nomenclature would hardly be tolerated were it not for the enormous size of the growing Hispanic community.

In a 1997 speech before this activist group, former Mexican President Ernesto Zedillo bragged that "the Mexican nation extends beyond the territory enclosed by its borders" and that Mexican migrants were "an important—a very important—part of this." A Zogby poll of Mexican citizens conducted in late May 2002 showed that 58% believed that "the territory of the United States' southwest rightfully belongs to Mexico." The national newspaper of Mexico, Excelsior, agreed: "The American Southwest seems to be slowly returning to the jurisdiction of Mexico without firing a single shot." No wonder then that 57% of Mexicans in that same Zogby poll believed that they should have the right to cross the border freely and without U.S. permission.

In a recent Pew poll, 40% of all Mexicans expressed a desire to immigrate to the U.S. That presents an Orwellian dilemma: almost half the population of our southern neighbor wants to leave home and enter our country, while claiming that this promised land ought to be part of the very system that has made their own country uninhabitable. A parallel phenomenon exists in Europe: radical Islamists who dream of Eurabia fail to realize that, without assimilation and adoption of their hosts' culture, they would only recreate the same discontents that prompted their departure from home in the first place.

Even if we accept that some Mexican-American leaders occasionally indulge in rhetorical excesses, their appeals to notions of race and reconquista still echo in mainstream politics. Consider the remarks of Richard Alatorre, a former member of the Los Angeles City Council: "They're afraid we're going to take over the governmental institutions and other institutions. They're right. We will take them over." Mario Obledo, former California State Secretary of Health, Education, and Welfare under Jerry Brown—and awarded the Presidential Medal of Freedom by Bill Clinton—once infamously remarked, "California is going to be a Hispanic state. Anyone who doesn't like it should leave." Speaking at a Latino gathering in 1995, Art Torres, then Chairman of the California Democratic Party, decried the passage of Proposition 187 denying entitlement benefits to those here illegally: "Power is not given to you. You have to take it. Remember, 187 is the last gasp of white America in California."

Such pronouncements tend to be encouraged by contemporary group-rights liberalism. Both the French and American governments embrace multiculturalism, which exacerbates the problem and empowers racial chauvinists. Multiculturalism teaches that there is nothing really choiceworthy about the economic, social, and political core values of Western culture, given its historic sins of racism, class exploitation, and sexism. At its worst, multiculturalism can end up, as in France, allowing de facto polygamy among immigrants from North Africa (perhaps 15,000 such families), or, more mildly in the U.S., extenuating or even embracing Chicano student manifestos like this one from a MEChA website at San Jose State University:

Chicanismo involves a personal decision to reject assimilation and work towards the preservation of our cultural heritage…. By all means necessary, we Chicana/Chicano estudiantes of Aztlán, dedicate ourselves to taking our educational destiny into our own hands through the process of spreading Chicanismo, in the spirit of carnalismo…. As Chicanas and Chicanos of Aztlán, we are a nationalist movement of Indigenous Gente that lay claim to the land that is ours by birthright. As a nationalist movement we seek to free our people from the exploitation of an oppressive society that occupies our land.

Second-generation immigrants often take away from this student activism, multicultural school curriculum, government bureaucracy, and popular culture a mixed but mostly pernicious message: that long-standing prejudice intrinsic to a corrupt system is what keeps newcomers down; and consequently that self-esteem and self-confidence can only be imparted by a therapeutic course of study, airing past grievances and proposing new group compensation. Shunned is the idea that traditional education alone allows immigrants to master the host language, gain familiarity with the host country's traditions and customs, and acquire enough science, math, and liberal arts to compete with long-standing natives.

The result is often psychological chaos. Too many second-generation Hispanics in the U.S., and Arabs in France, romanticize their "mother" country, which often they have never seen and would never return to if they had—while deprecating their parents' adopted society. This schizophrenia is similar to what the polls reveal about the wishes of Mexican citizens themselves. Large numbers believe that the southwest U.S. belongs to them, yet they don't want to stay in their own country. If Mexico were to absorb the American Southwest, would Mexicans still wish to emigrate there?

Hard Choice

With millions of illegal aliens already here, borders wide open in a time of war, and the ideal of assimilation under assault, there really are no more painless choices. Mexico is under no compulsion to reform its corrupt system when millions of its disaffected simply head north and send precious dollars south (some $10-15 billion annually in worker remittances). For Mexico to change the present system would be a lose-lose proposition: more social tension at home, less money coming in from the north.

An end to cheap, industrious labor in the U.S. would cause initial hardship to the American economy, raise wages and costs, and redefine the American attitude to physical and even menial labor—positive in the long run, painful and easily demagogued in the short term. Yet because the U.S. has a far better record of assimilation than Europe, it makes no sense for us to continue to emulate European racial separatism, which offers immigrants neither the economic opportunity nor the cultural discipline to succeed.

We should start by letting in far fewer immigrants from Mexico. An allotment of about 100,000 legal entrants—reasonable people could differ on the numbers—would privilege Mexicans (in recognition of our historic ties) but still ensure that those who came would do so legally and in numbers that would mitigate their ghettoization. Rather than predicating entry into the U.S. mostly on family affiliations, we should try to use sensible criteria to assess suitable Mexican immigrants—knowledge of English, education levels, familiarity with American laws and customs—to ensure that they are competitive with other newcomers and do not perpetuate an unassimilated underclass.

Tripartite border enforcement—a permanent and systematic barrier of some sort, increased manpower for apprehension, and employer sanctions—is crucial to ensure that immigrants arrive legally and in numbers manageable for assimilation. On this the public—in a Zogby poll 68% of Americans favor stationing troops along the border to curb unlawful entry—is far ahead of either political party.

Guest workers are a bad idea, as we learned in the 1950s and '60s from our own bitter bracero experience ("good enough to work for you, but not good enough to live beside you"). Temporary laborers, as we see in the suburbs of Germany and other parts of Europe, will inevitably create a permanent helot class. Moreover, these workers would continually depress wages for entry-level jobs for legal immigrants and our own poor, who find it hard to compete with young Third World illegals who are in no position to be choosy about work or to complain to authorities about employer treatment. There is nothing in the American or European experience with guest workers to suggest that they would willingly leave when their tenure expired, that their sense of exploitation would not create and perpetuate social tension, and that they would not need welfare assistance in times of health crisis or unemployment. Nor is it clear that millions of immigrants would cease coming to the U.S. illegally when they found that they were not accorded guest worker privileges.

Amnesty is perhaps the most contentious issue in the present immigration debate—in some polls 70% of Americans oppose it. We have had six prior reprieves of various sorts since the notorious blanket amnesty of 1986. These accomplished little other than encouraging more immigrants to come across the border illegally on the logical assumption that in a few years their lawbreaking would be ignored, or rewarded with citizenship. And yet because the problem has mushroomed over four decades, there are now literally millions of Mexicans in their old age who are here illegally, have forgotten life in Mexico, and have lived essentially as Americans. Deporting long-time residents would, if nothing else, be a humanitarian and public relations nightmare.

Yet some sort of one-time amnesty, as opposed to the old rolling and periodic reprieves, could only be discussed in the context of closing the border, precluding guest worker programs, and returning to assimilationist policies, so that the present pool of millions of illegal aliens would vanish rather than being perpetually replenished. Very rapid assimilation might work if the pool of those who come illegally, without English or education, to work largely in low-paying service jobs, would be vastly curtailed. In some sense, guest workers are far more destabilizing than a one-time amnesty. The former constantly enlarges the number of exploited and soon to be disillusioned aliens; the latter ends it. The prohibition of bilingual government documents and services, and of a racially chauvinistic and separatist curriculum in our schools and universities, would also send a powerful message that one should not come north unless he is willing to become a full-fledged American in every linguistic, cultural, and political sense of the word.

And, of course, there must be radical change in our own minds and hearts. When encouraged by Americans to adopt the customs and language of citizens, immigrants are more easily accepted; intermarriage and integration naturally follow. We must not forget that it is far easier for a Mexican or an Arab to become part of American or French society, than it is for an expatriate African-American or European-American to be accepted as a Mexican citizen, or a Frenchman to be considered a true citizen of Islamic North Africa.

America could easily end up like France without sharing all of French society's pathologies. Alienated populations in both countries have immigrated for similar reasons. And both groups often have passed on their frustrations and disappointments to a subsequent generation who did not fully assimilate or prove competitive with the non-immigrant populace—and were allowed by their hosts to remain separate from society. Nonetheless, contrary to tendentious and inflammatory predictions, the rebellion in France is not likely to happen here. But there is no reason to tempt fate, and every reason to ameliorate our own problems before they worsen.