Thanks to Andrew Sullivan for praise for Mormons, Muslims, and Multiculturalism

I am flattered and delighted that Andrew Sullivan, over at his blog The Daily Dish, (unaccountably) listed my Weekly Standard essay from last week, Mormons, Muslims, and Multiculturalism: The deeply dispririting Romney-Huckabee religion showdown, as his pick for best political essay of 2007.  It might well have been the last political essay of 2007 that Mr. Sullivan happened to read, but far be it from me ever turn down praise like that.   My thanks to Andrew Sullivan; I am honored.  (Let me also thank, once again, my editor at the Weekly Standard, Richard Starr, who both did a superb editing job and also gave me the space to say what I wanted to say.)

(Thanks Scott for pointing me to this.)

Thanks to Instapundit for linking to my Jack Goldsmith review in the TLS

My thanks to Glenn Reynolds here at Instapundit for linking to my review in the Times Literary Supplement (London) of Jack Goldsmith's superb The Terror Presidency.  (You can get directly to my Goldsmith review here.)

One of the things I listened to closely while writing that review was the Instapundit podcast interview with Jack Goldsmith, which I highly recommend and which you can reach at this link.

Glenn, thanks as ever! 

(And if any Instapundit readers come here after visiting the TLS, let me just say that I regard the TLS as the finest literary review in the world.  It covers a breathtaking range of subjects, its discussion of literature is unsurpassed anywhere, and if you are a student or, really, anyone looking to hone your own essay and prose style, read the TLS for models on how to write.)

Reactions to my Weekly Standard, Mormons, Muslims, and Multiculturalism article

I've received a fair amount of email traffic reacting to my Weekly Standard piece (open link at the WS, a blog summary here, and a letter back to Michael Novak re his (mis)summary, here).  The emails have been very mixed, very divided - not a big surprise. 

Among the various blog reactions, I wanted to flag to readers' attention the blog Levantine Dreamhouse - Abu Kareem, in New York, writes a very interesting blog that I recommend quite apart from the discussion of the Mormons, Muslims, Multiculturalism piece.  It's both reasoned and witty.

***

What has surprised me among the reactions, however, is how many evangelicals were most offended not by things I said about Huckabee or even about evangelicals (I think some of them decided not to take public offense, but instead to wallow in silent martyrdom=quiet resentment), but instead by my having the chutzpah to cite not just to Isaiah 3, but to the corresponding verses in the Book of Mormon. 

My goodness.  The horror, the horror. 

Very, very telling.   

Merry Christmas

Merry Christmas and happy holidays and happy new year. 

Jack Goldsmith, The Terror Presidency - my TLS review now up

Jack Goldsmith's part memoir, part historical and legal analysis of the Bush administration's war on terror, The Terror Presidency, came out a number of months back.  It has of course been widely and positively reviewed, as befits a book that captures so extraordinarily well the dilemmas of governance and executive power in the difficult circumstances of terrorism and counterterrorism.  It is one of the few books about the Bush administration and one of the few insider books on the Bush administration that I can confidently predict will remain required reading for the long historical term. 

I am delighted to note that my own review, in the Times Literary Supplement of 19 December 2007, is now up online at the TLS, here. 

(Thanks to Scott Lahti for cluing me in, I had no idea it was actually out.)

An excerpt:

***

The grand irony, Goldsmith observes, is that although the Bush administration lawyers sought “to leave the presidency stronger than they found it”, in fact they “seem to have achieved the opposite”. The reason is simply that the American constitutional system really does have three branches of government. Although the judiciary in principle has little constitutional role to play in matters of war or foreign policy generally, the fact that the war on terror has been conceived by the administration as a global war – in which the whole world is the battleground, in which even American citizens on American soil could be named as enemy combatants and indefinitely detained solely on the say-so of the executive – ensures that the Supreme Court cannot be left aside.

The administration’s tunnel vision has thus left it blind to the fact that, by seeming to go it alone and refusing to go to Congress for such things as limits, but also authority, to hold detainees at Guantánamo, or specific rules on interrogation that confine, but also legally protect, interrogators, the administration has tied itself in marriage to a far more exigent spouse – the Court. The message of successive detainee cases from the Supreme Court – Hamdi and Hamdan, particularly – has not so far been that the constitution forbids much of what the executive proposes to do. After all, most of this pertains to non- citizens detained outside the United States; and until the Bush administration’s spectacularly overreaching legal theories blew up in its face, no one thought the constitution applied to them at all. The message is, rather, that the administration should seek Congressional assent for what it wants to do. The Court has signalled provisionally that it will accept at least some extraordinary rules in the war on terror – provided, however, that the political branches have together given those departures democratic legitimacy. The Court’s limits, following the just argued Boumediene case, to what the political branches might do even together are not yet firmly drawn.

But there is no going it alone in a system of divided constitutional powers. If not Congress, it will be the Court – or more exactly, as Benjamin Wittes has noted, the inconstant Justice Anthony Kennedy, the Supreme Court’s swing vote – that endorses policy. In pursuing unfettered executive power to act alone, the administration has made Justice Kennedy its five-star general, its very own Douglas MacArthur in the war on terror. On the infrequent occasions when the administration has been forced by the Court to go to it for authority, it has been denied practically nothing. It has not so far mattered that the Bush administration is a lame duck, or whether Congress is in Republican or Democratic hands.

The administration seems not to have understood that what lives by executive discretion dies by executive discretion. If the Bush administration took counterterrorism as seriously as it took the abstraction of executive power, it would have thought ahead to its own departure from office. If it truly believed that its approach to counterterrorism was correct, then from the first day of its second term it would have engaged with Congress to create institutions to outlive any particular Presidency. It would have thought about the example of the Cold War and how a democracy deals with a genuine threat to a whole way of life. In retrospect, the democratic institutions of the Cold War did a remarkable job of balancing safety and liberty over decades; pure executive discretion cannot possibly promise the same. The administration having undertaken none of these things, US counterterrorism policy today flails without long-term strategic guidance or institutional stability.

Did Michael Novak actually read my Weekly Standard article?

19 November 2007

To the editor, National Review Online:

I ran across the following article by Michael Novak in the National Review, "Salt Lake Debate," December 17, 2007, taking a quick shot at the end at my Weekly Standard article this week, "Mormons, Muslims, and Multiculturalism," available online here (and some additional discussion at my blog post, here).

Look, I grant that the article was very long and had a long list of targets.  I acknowledge that numbers of people - including intellectuals, professors, theologians, etc., had some trouble following the argument.  Inelegant?  Possibly. My fault for bad writing?  Maybe.   Emotional?  No doubt, for reasons I explain at length in the essay. 

Still, it is hard to believe that Mr. Novak actually read the article before penning the following paragraph about it:

In another vein, a writer in The Weekly Standard, a former Mormon, urged publicly testing candidates even about purely theological matters — transubstantiation, baptism by immersion, circumcision, and other particular practices or beliefs of various faiths — just to see how, by the criteria of Enlightenment and liberal correct reasoning, the candidate “reasoned” about such matters. This, I think, makes Enlightenment and liberal political philosophy a new orthodoxy. And that test would provide a very narrow gate into republican self-government. By that test, only a small part of the population of the United States might pass. Most Americans have a much larger definition of “reason” and the “reasonable” than that.

Does my article urge publicly testing candidates about purely theological matters as transubstantiation, baptism by immersion, circumcision, etc., just to see how by the criteria of the Enlightenment and liberal correct reasoning, the candidate "reasoned about such matters?  

I offer three basic rules of thumb for what it is okay to ask of a candidate for public office about his or her religious doctrines.  The first is that any question of religious doctrine must have something to do with public policy or governance.  Specifically, I say:

[A]re there principles that can help define what religious questions should be in-bounds and what should be out of bounds in a tolerant, liberal polity?

First, for something to be "in," [bounds for questions] there does have to be a connection to governance, politics, and the public sphere. This is the most traditional form of American religious toleration in politics. A Buddhist's belief in reincarnation ought to be neither here nor there; a Mormon's conception of the Savior likewise; and a Jew's refusal to regard Jesus as Lord likewise.

Well, I don't know, that sounds to me like it rules out questions of transubstantiation, baptism by immersion, etc.  How else would Mr. Novak take it?  Indeed, the article does specifically raise transubstantiation and the Virgin Birth.  What does the article say?

Just as it is not considered irrelevant to know if one believes that space aliens came to Roswell, New Mexico, or has views on Area 51--shades of Dennis Kucinich?--a candidate's views on the Virgin Birth or transubstantiation or creationism are likewise relevant to making an informed electoral choice as to a candidate's fundamental rationality.

True, that does sound like it subjects the Virgin Birth and transubstantiation to politically correct tests of reason.  It sounds indeed as though this would create a new orthodoxy of reason, as Mr. Novak suggests.  But suppose we actually look at the article and see to whom this view is attributed:

And note that on this matter, atheistic rationalists and religious overbelievers join hands to say, all-in. A Hitchens, after all, would say that the electorate deserves to know the full irrationality of a candidate, and that is best expressed in his or her religious beliefs, even apparently private ones. (He would say this, and has said it: "Phooey," writes Hitchens, "to the false reticence of the press and to the bogus sensitivities that underlie it.")

So, this new orthodoxy of reason is attributed to ... the atheist rationalist Christopher Hitchens but also religious zealots like Huckabee who would insist that all religious practice, including weird aspects of Mormon belief and ritual that have no connection to governance, should be considered in deciding for whom to vote.  Mr. Novak's plainly rejects that and, I would have thought pretty obviously, so do I.  I'm arguing against it.  It is stated pretty clearly in this paragraph.  I don't believe that Mr. Novak read it, or at least not closely enough to follow it.

Past this first principle - that the religious belief in question has to have some relevance to public governance in order to be up for question at all - I further add a second, still more limiting principle on questions about religious doctrines.  It is that even where a religious belief does conceivably have a connection to governance - such as abortion or opposition to the death penalty - questions put to a candidate should be framed in a way that focus on the issue of the candidate's private conscience and belief about such matters, and not on the religion as such, in order to avoid, as Romney correctly said, making the candidate a spokesperson for the corporate religion as such.  I praised Romney on that very point, and took it even further in defense of liberal toleration:

To be sure, there was something good and liberal in part of his answer, and we should start with that. Romney said--correctly as a matter of deep liberalism--that for him to give representations as to the content of his faith would make him a representative of that faith, rather than of the people, who are of many faiths. To do so would be to head down the path of communalism, a political space defined not by a religiously neutral public sphere but by a division accepted as reasonably legitimate consisting of groups--religious, ethnic, whatever--that have claims on behalf of their immutably identified members.

How Mr. Novak could get from that to an assertion of a new liberal orthodoxy is quite beyond me.  I simply doubt he read the article.  What is so hard about this?

Finally, I offer a third principle, for when it is appropriate to take account of religious doctrine of a candidate.  It is in a limited circumstance - important, but limited by the previous two principles.  If a candidate asserts, or gives sufficiently good reason by his or her actions to show, that a position is rooted not in religious belief as such, but in the authority of the church, and thus puts an officeholder squarely between two authorities and obligations - church and the polity - then it is legitimate to inquire into the content of doctrine. 

I offer an example that I say flatly is hypothetical and indeed "fantastical" - the Catholic bishops announcing that any Catholic politician voting for abortion funding will be excommunicated and is therefore in peril of his or her salvation.  In that case, a genuinely devout candidate is genuinely caught between two competing authorities, the obligation to God and the obligation to the commonwealth, if, for purposes of the hypothetical, that is the will of the populace and, for example, prior to the announcement of this new doctrine, the candidate had promised to support abortion funding (saying, eg, that this was not his or her private religious view, but following the clear will of the majority).  In that case, it seems to me perfectly liberal and consistent with toleration for citizens to inquire into the content of doctrine that might lead a candidate, or even an officeholder, to vote in a way that is loyal to one's soul and God, but not loyal necessarily to one's citizens who are not necessarily of the faith. 

Any reasonable reader - no, any reader - of my article would recognize that the intent of this essay is to offer straightforward principles of liberal toleration that Mr. Novak himself would broadly endorse.  It seems pretty obvious to me that he started reading, perhaps got annoyed at the length (but surely Mr. Novak is used to reading things longer than 1500 words?) or at the tone of the essay, landed on a particular paragraph without bothering to read to whom its view was attributed, decided that it was my view, and engaged in a little drive-by libel. 

I understand that some readers found this essay hard to follow.  I don't defend its elegance; I was quite annoyed when I wrote it, and decided to take on all targets.  If it was too scattershot or emotional for Mr. Novak's sensibilities, my regrets.  But I can hardly think that the views he attributed to the me or the article by Mr. Novak are correct on any reading.  They are exactly what they are - views attributed to my foils, in this case Hitchens in particular.  Thirty seconds more of reading would have shown Mr. Novak this. 

I don't defend the readability of the article.  If it confused Mr. Novak then I will grant it had its problems of readability.  I do think Mr. Novak, whether my fault or his, has quite misread it.  He is, with good reason, a widely respected commentator, and his views on what the article said will and, all things being equal, should carry weight with those who might read the article Would Mr. Novak care to withdraw or amend his reading of it?

Bridging the Foreign Policy Divide: Book Announcement

More use of this blog for shameless self-promotion.  The Stanley Foundation of Muscatine, Iowa commissioned during this past year a series of essays on core foreign policy issues that will matter to a new administration, whether Democratic or Republican.  Each essay is co-authored by a centrist liberal/progressive and a centrist conservative, seeking common ground across the political divide.

The essays range across many things, from the legitimate use of American miltary force to the size and composition  of the US military, nation-building and democracy, the rise of China, and many other things.  The list of contributors is stellar, and include Ivo Daalder, Francis Fukuyama, Frederick Kagan, Michael O'Hanlon, Tod Lindberg, Derek Chollet, and many others. 

The essays also include one on detainee treatment at Guantanamo in the war on terror, by yours truly and Elisa Massimino, the Washington director of Human Rights First.  Ours is titled The Cost of Confusion: Resolving Ambiguities in Detainee Treatment.

The essays have now been issued as a book, Bridging the Foreign Policy Divide: Liberals and Conservatives Find Common Ground on 10 Key Global Challenges.  It is edited by Derek Chollet, Tod Lindberg, and David Shorr (who are also all contributors to the essays).  Routledge 2007, $17.00 or so.  Out just in time for the primary season - this short collection of essays is also a very useful short text for political science or related classes.  Available at Amazon, here.

Derek, Tod, Elisa, and I did a segment on the Diane Rehm show on NPR (WAMU) last Monday, December 10, 2007, discussing the book.  Here.

My Weekly Standard article, Mormons, Muslims, Multiculturalism

(I am indeed taking a break from blogging, but I do plan to use this blog as a way of making available things I am writing and publishing, as well as the occasional announcement of other things.)

I have a new piece in the Weekly Standard, December 24, 2007 issue, titled Mormons, Muslims, and Multiculturalism: The Deeply Dispiriting Romney-Huckabee Religion Showdown.  You can find it at the Weekly Standard, open link, here.

(PS.  I respond to Michael Novak's blatant misreading of my article (it appears in a quick drive-by attack in a National Review article) in a letter to the editor posted to the blog here, including links to Novak's article.)

(PPS.  Looking at some comments and links people have put to Amazon and elsewhere - Kenneth Anderson is a pretty common name, so be aware that I am not the author of any books on Mormonism or religion or anything like that.  Also not the Kenneth Anderson who blogs at the Brad Blog or Bonehead Compendium.  I'm also not, alas, the wonderful author of the books on India, a descendent of that British general in WWII, the great African-American singer, the Harvard medical school professor, etc., etc.  (I'm also not the Kenneth Anderson convicted recently of child molestation in some public school in the midwest.  Amazing what you find when you google a common name like mine.)  Also, if I might make a suggestion - actually reading my article, although it is long, is a pretty good idea before thinking to comment.  You can get to it through the link to the Weekly Standard.)

The essay is very long - some 5-6,000 words, in fact - and I am very grateful to the Weekly Standard, and my editor Richard Starr in particular, for giving me such a sizable amount of space for this essay.  As will be evident, oh, two sentences into the piece, I was quite angry when I wrote it - angry that there really does appear to be 30% or so of this country that is prepared to vote against someone - not my candidate - solely on account of their religion.  Not aspects of that person's religion that have to do with public policy, but simply the religion itself and its most un-public policy, un-governance related aspects of it.  So I did not hesitate to lampoon the evangelicals who are displaying this season such remarkable religious bigotry.

That said, the fact that I can lampoon them, fairly nastily, and know that at most they will leave rude blog comments - rather than firebombing my house - is a credit to them.  It should not really be such a great credit to anyone, of course, that on account of angry or offensive speech, you forbear from killing them (wow! such restraint!), but these days I suppose you take what you can get.

The essay also sharply attacks Mitt Romney's Mormon speech - not on the usual liberal grounds that he left out the unbelievers, which I think it is true and wrong but not actually the greatest wrong of that speech - but instead on the grounds that he offers the country a sort of conservative multiculturalism, a conservative moral relativism, that puts his and everyone else's religion entirely beyond discussion.

That multiculturalism, while leaving Romney maximum ability to deflect questions of religion, is wrong because there are in fact important questions of religion that do need to be asked of candidates.  And many of them need to be asked if, and at some point in time - as I deeply hope, will in fact be one of these days - that there are Muslims in America who, again as I deeply hope, will think that they have as much reason to be president as any other person does.  Multiculturalism says that any questions about any of this are illegitimate, and that is both wrong and a practical disaster because it precludes the possibility of true integration and assimilation into the political culture.

Well, you can judge for yourself.  It does manage to attack evangelicals, Mormons, Muslims, and Christopher Hitchens, which is why it is so long.  I apologize to all those I left out as targets; perhaps next time.  It is available at the Weekly Standard, and I look forward to the debate that I hope will follow.

I don't actually write very much about Mormons and Mormonism.  However, I have written two review essays, both back in the 1990s, one for the Times Literary Supplement, here, and the other for the Los Angeles Times Book Review, here.  The links are to SSRN, and you can download the pdfs free from that site if you like.

Here is a bit of the Weekly Standard essay:

***

Now consider Mitt Romney’s speech and the answer he
gave to the matter of religious tests. Leave aside the whining
secularists who complain that Romney left no place
for unbelievers in the Republic. Correct and not of unconcern
by any means, but frankly far less important than the
question of multiculturalism; and anyway, one may trust
left secularists to look after their interests in such matters.
No, the much more important matter was that Romney
announced what might be called, appallingly, “conservative
multiculturalism”—indeed, a form of conservative
moral relativism. If the demand of the evangelicals was
all‑in, then his answer was all-out.

To be sure, there was something good and liberal in
part of his answer, and we should start with that. Romney
said—correctly as a matter of deep liberalism—that for
him to give representations as to the content of his faith
would make him a representative of that faith, rather than
of the people, who are of many faiths. To do so would be
to head down the path of communalism, a political space
defined not by a religiously neutral public sphere but by
a division accepted as reasonably legitimate consisting of
groups—religious, ethnic, whatever—that have claims on
behalf of their immutably identified members. This is, by
the way, the relatively humane (in historical perspective),
but altogether illiberal political order of the Ottoman
Empire. It is what many Muslims from those historical
lands appear to think would be the best and natural political
order in the lands to which they have emigrated—Canada,
for example (which anyway has its own powerfully
illiberal forces driving toward group-identity communalism),
and, increasingly, Britain. It is not—at least not so
far—the American way, and Romney was right firmly to
reject it.

But he did so, unfortunately, in a typically Romneylike
way, with a corrupt little wink-and-nod to his evangelical
inquisitors—oh, but don’t worry, “I believe that Jesus
Christ is the Son of God and the Savior of mankind,” etc.;
just don’t ask me about Mormon underwear. It is corrupt
not because it is untrue, but because it aims to let him eat
his cake and have it, too. He rejected demands to explain
his faith, but did so while letting his interlocutors know
that he was really one of them. Too clever by half, in the
end, because they will not actually believe him, but this
is what comes of positions of moral conviction devised by
management consultants.

The “all-out” answer that Romney gave was the denial
that citizens might ever legitimately and ethically demand
to know the content of religious doctrines professed by a
candidate for public office. (“Each religion has its own
unique doctrines and history. These are not bases for criticism
but rather a test of our tolerance.”) It is multiculturalist
because it essentially treats all private beliefs as immutable
and beyond reason, and because it says that to propose
to subject any of them to public scrutiny of reason is an act
of intolerance akin to racism. It is a position traditionally
asserted by the left on behalf of its identity-politics constituencies.
It is dismaying, to say the least, that Romney would
claim it for his own to deny the legitimacy of all questions.

It is, moreover, relativist in implication. Toleration is
not an assertion of relativism. It is, rather, the forbearance
from judging and acting on judgments in the public sphere
that one might well believe oneself entitled to make in private.
Toleration entails the suspension of public disbelief,
or at least political action thereupon, about matters that
one might nonetheless consider well within the realm of
private moral judgment. Relativism, by contrast, is denial
of grounds for judging at all. They could not be more different—
and, crucially, relativism removes the possibility
of toleration because it removes the possibility of reasoned
judgment.

Romney’s “all-out” stance goes well beyond a plea for
liberal toleration to an assertion of genuine relativism and
the denial of the very possibility of moral judgment. And
all of this in the midst of a lecture on the decline of religion
in Europe. But of course it is not declining, it is rising
in the form of an Islam whose liberal commitments are in
doubt at best. Romney answered as a Mormon looking for
maximum room to maneuver, but seemingly without any
thought whatsoever to the institutional settlement implicitly
proposed, affecting not just Mormons and evangelicals,
but Catholics and Buddhists and Muslims and Hindus,
as well as the unbelievers and atheists he could not bring
himself to mention.

And then toward the end:

The firm demand of the state for conformity to neutral
standards is what—contrary to the claims of the multiculturalists—
provides the grounds of liberal toleration. There are many reasons, but the simplest is this: Taken together, the demands of religious groups for ever stronger and expansive special accommodations must eventually result in profound and antagonistic standoffs and conflicts.
Indeed, we have gone too far with special accommodations for religions that depart from neutral governance.

 

(Thanks to Ms. Althouse for the link, here.  And welcome Instapunditeers, and thanks Glenn!  Thanks also to Sandy Levinson for the link from Balkinization.  And to Andrew Sullivan for calling this essay, um, "ornerily brilliant."  Thanks also to Powerline, who correctly describe me as a Powerline reader, here.  Also Peter Leithart.  And Andrea Urseem at ReligionWriter.) 

Taking a break from blogging

I've been thinking for a while that I should take a break from blogging, in order to focus on a couple of projects ... I enjoy it very much, even though this blog has a tiny audience, and even though I don't actually post that much, it somehow occupies more of my mental energy than I realize. I had been thinking that for a while, and last night a long time and close friend whose opinion on these kinds of things I take very seriously urged me to do the same. (Thanks, David.)

So I am going to take a break from blogging. I may occasionally post things up here, but it will frankly be more or less self-advertising, announcements of my articles and other professional things that I am doing, rather than chat about me. I may come back to this blog in some other form at some point - perhaps less chatty and more substantive, I don't know, perhaps more limited to first draft discussions of law and policy topics, rather than anything from law to music to my family to food. Likely something I will do is post something brief on books that I think are worth reading.

But I need to focus on some projects that require a kind of in-turned focus for a while. If anyone wants to reach me, I'm not entering a monastery or anything - the easiest way to reach me is at my Washington College of Law, American University email, kanders@wcl.american.edu. And to all, ummmm ... good night and good luck? Ken

(ps. thanks for the very kind comments. And thanks to some of the big bloggers, Instapundit in particular, whom I've never met but who have been kind enough to link to things that I was eager to have reach a larger audience than I could muster either in an academic context or my own blog. And Opinio Juris and Legal Theory Blog. I won't be disappearing from here entirely, and I am leaving the blog up, minus a few posts that I've decided in retrospect were intemperate or mean-spirited, or anyway more than ordinarily mean-spirited, in case they are useful to undergraduates doing term papers on just war theory or law of war or Koskiennemi or what-not. I will check back here from time to time, and anyone who would like to reach me can always do so at my school email, above.)

(pps. At risk of being a bit like Tom Sawyer showing up just in time to hear praises for himself at his own funeral, let me thank Duncan Hollis over at Opinio Juris for the kind words, as well as all the good friends at Opinio Juris, and to those who have left me messages in the comments. I really am not completely abandoning ship here - I will post stuff here about things I am writing and maybe some other stuff. I might post the occasional topical comment at the Telos website. And unless the ASIL discussion on media stuff dis-invites me as an ex-blogger, I will plan to comment there in April on why I have decided to drop it for the present time.

Two things in anticipation of that. First, I think group blogs like Opinio Juris or Balkinization or VC are a better thing for people ostensibly blogging in professional areas like law - the group nature of the blog tends to keep people like me and our dilettantish propensities in check, tends to keep people like me more focused on the topic at hand.

Second, I have been privileged to have some of the journalism world's best editors over the years - John Ryle and various of his colleagues at the TLS, Steve Wasserman at the LA Times Book Review, Scott Malcomson at the NYT, Tod Lindberg at Policy Review, Gerry Marzorati then at Harper's, Richard Starr at the Weekly Standard, plus some close writer friends such as David Rieff (also occasional collaborator) - and several of them, whom I won't name but have enormous respect for, have said more or less the same thing, viz, that blogging makes me a worse writer. I admire the folks at Balkinization and Opinio Juris and Volokh Con who seem to be able to switch effortlessly between blogging and regular publication writing, but as my writer friends and editors tell me, in my case it seems to lead to flabby writing that is brief and unargued when it should be long and detailed, and long and chatty when it should be brief and tough.

I don't know why that is, except that I find as a matter of prose that the blog plays to my worst temptations to instant publishing gratification and lack of re-write. I know that is not true for many fine law bloggers, but it does indeed tend to be true of me.

So I am going to take a little break from actual blogging, use this blog for posting up stuff that I am actually publishing, and see if I can recover both my prose style and my general sense of rewrite discipline. Perhaps when I return, I will look to join a group blog that can help keep my dissolute tendencies in line. As one friend said, "Ken, I used to think of you as a polymath [which was entirely too generous of him but who am I to dispute that?], but to judge by your blog, I think you've slid from polymath to dilettante." Hmm.)

Sundays with Stendhal 9

From On Love, the chapter on love in the United States ... Stendhal offers us ... Jingle Bells! Who ever would have thought?

In the Winter ... American young people of both sexes drive about night and day over the snow in sleighs, gaily travelling distances of fifteen or twenty miles without anyone to chaperone them; and nothing untoward ever occurs.

(In this conjecture about the Americans of roughly 1830, Stendhal, who never actually visited the place but had a great many opinions about it, was, we must observe, quite mistaken. There was, in fact, Much Untowardness.)

Amazon prime is convenient

... and highly addictive. On the one hand, I find myself buying books that I actually do need but never quite got around to pushing the one click button because I was deterred by the shipping price, and trying to figure out the shipping options. Jean-Marie signed up for the flat rate prime program, and I do find myself clicking the button more. Truth is, though, I don't have time or interest in shopping in a store for anything this Christmas that I can buy online. When I look at the grocery section on Amazon and realize that cool coffee and chocolate and that kind of goo-gah can be bought and have delivered with no additional pain or expense - well, I'm going online for everything I possibly can this year.

Howdy to Josh Cohen!

In the comments below to my recollections of the great Rogers Albritton, Joshua Cohen adds his support. Josh, long of MIT and now of Stanford, is hardly an intellectual slouch ... one of the great political philosophers of our day, star of this country's humanist and humane Left, and broad gauge intellectual through his editorship of the Boston Review ... not to mention my teacher in Marx when he taught for a couple of terms visiting at UCLA. Josh was one of those standout teachers - he never sought to entertain the crowd, and yet he managed to reach out with his mind and utterly engage intellectually those who were listening. The broader intellectual community knows what a great scholar and thinker Josh is; you should know what a privilege it was for me and others at UCLA to have him as a teacher. Those students included me, the legal philosopher Larry Solum, and the great Hobbes scholar Sharon Lloyd.

True, I've moved right since those days - I would say my trajectory is probably close to that of my fellow Telos editor and Hoover Institution fellow Russell Berman, who teaches in comparative literature at Stanford. Alas, Josh would likely not approve, or at least not agree - one of Josh's great virtues being his willingness to engage with those who don't agree with him - but I suppose I fit one of the particular definition's of neo-conservative, in the special sense of someone who started out on the left and moved right. I didn't start by reading conservative philosophers; the only one I really read, and read about, I suppose, was Burke. I read liberals and the left, and Josh's classes in Marx were and are an important part of that. I still go back and read sections of the economic and philosophical manuscripts, Capital, On the Jewish Question, Critique of the Gotha Program, the Manifesto, etc. My intellectual formation owes more to Marx than to any conservative philosopher (Josh, as the person who taught me Marx, I hope this is not causing you regret!). Indeed, I think of myself as having "moved right" largely in the sense that the Left has moved a different direction itself - first, an embrace of rights discourse in ways disastrous to the liberal conception of rights; second, an embrace of multiculturalism via the discourse of rights that is disastrous to liberty; third, ... heck, if I go on, I'll shortly celebrate myself as Keeper of the True Flame.

Then there's also the general problem that mainstream economics has turned out to be much more intellectually powerful than I, for one, as a philosophy student in the early 1980s, would have thought possible. It's not the end of the story, of course; it operates within a certain frame from which an immanent critique is certainly possible and a jolly good idea. But most of life is not really lived in the immanence, but well within the frame of supply and demand. Critical theory, as law professors have found to their sorrow, isn't so good at the detailed on the ground stuff of doctrine. Microecon does a much better job at explaining that stuff. Again, it is not that critical theory has no place, but immanence is not where we live. (Consider how it does come back in - for example, Gregory Clark's new book on the Industrial Revolution, Malthusianism, and international economic development - A Farewell to Alms - it finally concludes that conventional economic theory cannot explain the wealth and poverty of nations, and, though starting from an economic historian's frame, opens the possibilities of critical theory, anthropology, sociology, and possibilities beyond economists' rationality.)

The Boston Review is one of the best book reviews and intellectual sounding boards going. And note that although it is not new anymore, it is still a relatively latecomer to the world of literary book reviews, the world of the New York Review of Books, the Times Literary Supplement, the London Review of Books. I suggested a couple of years ago in a rundown of places still interested in reviewing books that the Boston Review was parochial, based around the Cambridge crowd - Josh dropped me a note correcting me about that, and he was right. I went back and subscribed, and over the last couple of years of reading it, have come to quite agree - it is not parochial and one of the few things in the US that gives the NYRB any competition and, truth be told, I prefer it (the NYRB tone of God Addressing Eternity eventually loses me). In the midst of all the rest of what Josh does, it is quite amazing. Okay, in order of my reading preference, the leading (we might say, remaining) literary reviews are the TLS, LRB, Boston Review, back-of-book-Wieseltier-land TNR, NYRB. (Another day I'll update my sense of the reviewing world.)

I'm sitting here in a Caribou Coffee house in downtown DC writing this over Thanksgiving weekend. I'm sitting here thinking about Josh, Rogers, the really astounding teachers and professors I've had over the years. I haven't even mentioned law school. I wonder how many students, back then or now, have that kind of intellectual opportunity. I don't think I provide that to my students - I think I give them a very practical education in lawyering, business, finance, international development, nonprofits, philanthropy, nonprofit finance and tax law, etc. but it's not fundamentally intellectual. I think I gave that to my high school students at NCS in the ethics and war class, but somehow third year of law school seems different. I've been privileged and, really, blessed. Anyway, Josh, it was great to hear from you - I'll email you at Stanford - and happy thanksgiving to you and yours.

Larry Solum gives thanks for Rogers Albritton, and so do I

Larry Solum, over at Legal Theory Blog, gives thanks by remembering Rogers Albritton. Here. I don't think Larry will mind if I just repost the whole thing:

This Thanksgiving, I have been thinking about Rogers Albritton--the great Wittgensteinian philosopher and the single most significant influence on my intellectual development. I took every class that Albritton offered at UCLA in the late 1970s and early 1980s. Albritton taught the value of clarity, and of not giving up on a problem no matter how long it took. In the past few weeks, I've been working on a paper entitled "Semantic Originalism." The roots of the paper are in a conversation that I had with Albritton more than twenty-five years ago. Albritton told me to read Paul Grice, and since that conversation I've returned to Grice's work, again and again, in a long, slow, and painful effort to understand how laws mean. A lesson that Albritton taught and I have only recently begun to appreciate is that some work cannot be done in a week, a month, a year, or even a decade.
Thank you Rogers.

Let me echo Larry's sentiments. Rogers was also my professor, and I have never stopped thinking about things he taught me, and the method he taught me, in areas ranging from metaphysics to epistemology to ethics to religion. I have thought especially hard on his lectures on the philosophy of religion across the last twenty five years. I raise them in discussions with people a lot - most recently, with a friend here in DC talking about how she, a nominal Catholic, and her husband, a nominal Jew, planned to raise their some-day un-nominal children. I thought about it when posting to this blog about the future of Buddhism a couple of weeks ago.

Apart from the substance - well, what Larry says, the idea that some things require a long, long time to think about. This sometimes makes things tough from a career standpoint - I suppose I should be cranking out books by now, and I am working on doing that. But one thing that training from Rogers, and also from Philippa Foot, instilled in me was a sense that short articles are better vehicles for thinking, most of the time, than long books - and that in writing conceptually difficult things, to tie oneself to a text was a good idea. It is hard for me to conceptualize whole books; likewise my fondness for the substantive review essay, tied to a text or set of texts. I don't suppose it looks like intellectual progress; but in my case at least, I feel on surer ground intellectually.

I was blessed with having a whole host of world class intellectuals in my undergraduate education at UCLA, in approximately the same years as Larry - we were classmates and friends together in the philosophy department there. Rogers, Philippa Foot, Herbert Morris, David Rapoport (with whom I am still active in the Journal of Terrorism and Political Violence, of which he is the editor), Robert Brenner; and, passing through, Rosalind Hursthouse, Joshua Cohen, David Pears, and many others. It was a model of what a public university could offer in the way of genuinely world class intellectual life. The conversations with Rogers covered so much ground and would go on for hours after class. They were some of the great intellectual experiences of my life, and I wish that every undergraduate could have that kind of experience.

(ps. More from Larry here, on Rogers and also on his classes with Josh Cohen. And thanks Larry for the link!)

The best account of Hollywood's anti-American films

... is in Maclean's by Mark Steyn. Here. It will disappear after awhile, so check it out.

I myself don't take movies except as light entertainment. I also regard the "documentary film" as, by definition, propaganda - and that includes even ones with which I agree 100%, such as Indoctrinate U. Cognition requires reading, not watching. Anyone who gets their politics or, worse, the confirmation of their politics, from the movies and actors, music and musicians, teachers or professors deserves exactly what they get. Excerpts from Steyn:

***
Hollywood shoots itself in the foot:

Its anti-war films may be aimed at Bush,
but what they're really destroying is storytelling

Maclean's
MARK STEYN
November 15, 2007

A few months back, Peter Berg attended a test screening of his new film in California — not Malibu or Beverly Hills, but out in farm country. The Kingdom is about FBI agents (Jamie Foxx, Jennifer Garner, etc.) investigating a terrorist attack on Americans in Saudi Arabia, and finally, about two hours in, the star talent gets to kill a bunch of jihadists. As Entertainment Weekly described it, "the packed house went completely bonkers, erupting in cheers" — and poor old Berg was distraught. "I was nervous it would be perceived as a jingoistic piece of propaganda, which I certainly didn't intend," the director agonized. "I thought, 'Am I experiencing American bloodlust?' "

You really want an answer to that? Okay, here goes: No. It's not American bloodlust. As they say on Broadway, the audience doesn't lie, and, when they're trying to tell you something, it helps not to cover your ears. For all Mr. Berg's pains, The Kingdom was dismissed by the New York Times as "Syriana for dummies." That's to say, instead of explicitly fingering sinister Americans as the bad guys, it merely posited a kind of dull pro forma equivalence between the Yanks and the terrorists. It came out, oh, a week and a half ago and it's already forgotten in the avalanche of anti-war movies released since. There's Lions for Lambs and In the Valley of Elah and Redacted — no, wait, Rendition. No, my mistake. There's a Redacted and a Rendition — one's about American soldiers being rapists, one's about American intelligence officials being torturers. Every Friday night at the multiplex, Mr. and Mrs. America are saying, "Hmm, shall we see the movie where our boys are the torturers? Or the one where our boys are the rapists? How about the film where the heroic soldier refuses to fight? Or the one where he does fight and the army covers up the truth about his death?" And then they go see Fred Claus, which pulled in three times as much money as Robert Redford's Lions for Lambs on both films' opening weekend.

As Roger L. Simon of Pajamas Media (and a screenwriter himself) put it: "Hicks Nix Peaceniks' Pix." These films tank at the box office, and disappear from the shopping malls before you've had time to refill your popcorn, and next Friday there's a brand new critically acclaimed anti-war movie in its place. The faster they fall, the more Hollywood is convinced of the "courage" of its "dissent." Tired of hailing pictures no one goes to see, the New York Times' film critic A. O. Scott now routinely pre-empts accusations that the drearily consistent world view of these works is "anti-American." Of Rendition, he wrote:

"It has timely issues and serious ambitions, and it also has movie stars — Reese Witherspoon with a huge pregnant belly! Meryl Streep with a Southern accent! Jake Gyllenhaal with sad, sleepy eyes! — as well as young romance, breathless chases and violent explosions. Honestly, what could be more American than that?"

Mr. Scott trembles, albeit accidentally, on the brink of a great insight here. Hollywood assumes that if you have enough beautiful stars making out and getting shot at and running up stairwells and diving through windows and outrunning the fireball, that that is sufficiently "American" (as Mr. Scott puts it) that the absence of a heroic narrative won't matter. The movies have divorced the form from the content, or, if you prefer, the telling from the story. You see it most obviously in almost any remake. Take the old 3.10 to Yuma, which chugged in last month, remodelled for the 21st century. The 1957 western was nobody's idea of a masterpiece but it had a moral seriousness: Van Heflin's broke and he'll lose his farm so he agrees to escort a violent felon to meet the train that will take him to prison. He's doing it for the 200 bucks — or so he thinks. But along the way he comes to understand that he's doing it for rather more. When a disaffected sibling of one of Glenn Ford's victims tries to kill him, Heflin prevents him — because, in a civilization as fragile as the young West, he thinks it important that it be the law that dispatches the prisoner.

All that's gone in the new version, with Christian Bale in the Heflin role and Russell Crowe as Ford. For Bale, it's just about the money. Now the guy who tries to intercept the prisoner en route is not a vigilante who wishes to shortcut the law but the law itself — a rogue cop as brutal as the man he pursues. Oh, and the 2007 3.10 also gives us a Pinkerton agent who enjoys killing Injuns just for kicks, which even Russell Crowe primly draws the line at. There's no moral universe, just a rotten state in which wickedness and violence are tempered only by degrees of politically correct squeamishness.

A decade or so back at some confab at Paramount, I met Lionel Chetwynd, a writer and producer who was raised in Montreal and in his pre-showbiz days served in the Black Watch (the Royal Highland Regiment), in the course of which he met several Canadian veterans of the Dieppe raid. After recounting their story one night at a party in Malibu, he was invited to pitch it as a project to some network honcho. He laid out the bones of the plot — a suicidal dry run for D-Day against a heavily fortified European port.

"Who's the enemy?" asked the network exec.

"Hitler," said Chetwynd. "The Nazis."

"No, no, no," she pressed. "Who's the real enemy?"

"It was the first time I realized," Chetwynd later told Cathy Seipp, "that for many people, evil such as Nazism can only be understood as a cipher for evil within ourselves." Who's the real enemy? Ike. Churchill. The Imperial General Staff. Us.

Ed Driscoll, who's been scanning the shrivelled horizon of an ever more parochial movie industry for some years now, likes to cite that anecdote as a kind of shorthand for the Hollywood aesthetic: who's the real enemy? In this season's crop of movies, the enemy is never al-Qaeda, the Taliban, the Baathists . . . Sure, they're out there somewhere at the fringe of events, but they're just Hitchcock's MacGuffin — the pretext for the real story. And that means the heroes can never be, say, a bunch of U.S. Marines who leap from their Humvee on the outskirts of Ramadi because something goofy's going on. No, the heroes have to be dogged journalists or crusading lawyers or obstinate wives who refuse to swallow the official explanation. And the real enemy are renegade government officials, covert agencies, right-wing senators, Halliburton. And, unsurprisingly, despite the unpopularity of Bush and the Iraq war, the public simply doesn't buy the idea of their country as a 24/7 cover-up for rape, torture and war profiteering.

Which brings us back to those yelps of delight when the Americans clobbered the jihadists two hours into the test screening of The Kingdom. Pace Peter Berg, it's not "bloodlust": if you want that, you're best to stick to the amoral fetishization of violence in the 3.10 remake. What the preview crowd were telling Berg is, hey, we'd love to see one film where our guys kick serious terrorist butt — and there isn't one, and there hasn't been one for six long years. If you buy the argument that Hollywood's anti-Americanism derives necessarily from its role as purveyor of entertainment to the entire planet, well, so what? Terrorists killed a bunch of people in Bali, Madrid, London. Alongside the kick-ass Americans, sign Hugh Grant as an MI6 agent and Penelope Cruz as his Spanish dolly bird and Cate Blanchett as the head of the Australian SAS and Russell Crowe as her Kiwi bit of rough. As long as the enemy's the enemy, and not a Dick Cheney subsidiary. It's fine to show the American war machine warts and all, but Hollywood is showing only the warts — and, even if you stick perky little Reese Witherspoon in the middle of it, it's still just another pustulating carbuncle.

***
(Etc.)

My Day-Light light box

I tend toward seasonal slumps during winter, so this year I took my psychiatrist brother's advice and got a light box - Day Light, from Uplift Technologies, which I bought through Amazon. Since it is sunny and 72 degrees out today on Thanksgiving, I'm not so sure I need it, but I have been faithfully using it each morning. Will it help? I'm sure I would also feel much better in the winter if I exercised twice as much. But heck, I'll take placebo effects as well as real ones. And in any case, on low power it is a fine desk working light. It sits on stilts directly over my computer monitor and shines down beneficently upon me. It wasn't cheap, at $179, but I'm willing to give it a shot.

Happy thanksgiving

So, happy thanksgiving to everyone. Low key this year - Jean-Marie, Renee, and I were all independently swamped this fall with various things, and so didn't do a lot of planning ahead. And then the water was scheduled to be turned off on Tuesday night and Wednesday ahead of Thanksgiving Day in order to fix the fire hydrant, which definitely put a damper in our desire either to entertain or even cook. Then DC agreed at the last minute to postpone the repairs - good repairs, of course, working fire hydrants are a very good thing - but by then it was too late to get very revv'd up. The menu at our house is ...

Breast of turkey, because I have more or less given up on whole turkeys, in a sauce of cinammon, nutmeg, allspice, cloves, garlic, ginger, a bunch of those spices - not my more usual herbes de provence thing - mixed with heart stopping plugra butter, almond oil, molassass, and fresh lemon juice, a little balsamic vinegar and a lot of brandy. Pearl onions, carrots, and prunes cooked with the turkey.

Green beans, prepared by Uncle Jack and cooked by Jean-Marie.

Mashed potatoes. Whisky mashed potatoes - the potatoes have been soaked in whisky, garlic, oilive oil, plugra butter, and salt. This is an Experiment By Ken. In fact, this whole meal I have shifted from wine to spirits for cooking. No one here drinks spirits - I don't drink at all, and Jean-Marie and Jack only wine - Renee ... hmmmmmmmmmmm, milk Store bought gravy, I'm afraid.

Roasted tomatoes and large brown mushrooms, drizzled with olive oil and salt, from me.

Squash, from Jean-Marie. Good for you? Well, not with the amount of butter she uses!

Cranberry sauce, homemade, Jean-Marie.

Cream corn using dried corn from somewhere in the Amish country.

Dessert, pumpkin, cherry, and pecan pie, all homemade butter crusts, from Jean-Marie. Pears soaked in brandy, fresh clementine juice, vanilla, almond oil, then roasted, and sprinkled with turbinado sugar.

(Notice there is no chocolate on the menu.)

US official oaths of office

It's a minor point, but Joe Klein is mistaken in his description of the presidential oath of office. Klein says, in his new Time magazine column:

As Dodd said, when the President takes the oath of office, he (or she) promises two things: to protect the Constitution and to protect the nation against enemies, foreign and domestic.

That's not actually what the Constitution says at Article II, Section 1. The required presidential oath reads instead:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Klein appears to be conflating the presidential oath with the Congressional oath or the military oath (whether upon enlistment or the somewhat more elaborate commissioning oath) which do use the words "enemies domestic and foreign":

"I, {insert name here}, do solemnly swear, (or affirm,) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." (Note that the last sentence is not required to be said if the speaker has a personal or moral objection.)

Congressional and other oaths of office (I'm using Wikipedia here, but yes, it's correct) also are oaths of office to the Constitution, not the nation, the state, or any other entity. The Constitution specifies in Article VI, clause 3:

"The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."

For other officials, including members of Congress, it specifies they "shall be bound by Oath or Affirmation to support this constitution."

At the start of each new U.S. Congress, in January of every odd-numbered year, those newly elected or re-elected Congressmen - the entire House of Representatives and one-third of the Senate - recite an oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

"So help me God" is customarily added to the end of the oath, but cannot be required as part of the oath of office in the United States. This oath is also taken by the Vice President, members of the Cabinet, and all other civil and military officers and federal employees other than the President. While the oath-taking dates back to the First Congress in 1789, the current oath is a product of the 1860s, drafted by Civil War-era members of Congress intent on ensnaring traitors.

***
Well, do these distinctions make any difference? Obviously it's a minor quibble with Klein's column. However, the larger point is more significant than one might imagine.

First, it is not accurate to say that the oath of the president, or of Congress, or of any member of the military is to protect the nation against enemies foreign or domestic. It is to support the Constitution. The same is true of the miltary oath and every other federal oath.

Earlier generations of Americans thought this was, in fact, a great distinction - the obligation to the Constitution, rather than to the "nation," was a formative part of our civic constitutional religion, something understood as separating the great American experiment from the mere passions of nation and nationalism of the countries and imperialisms of Europe. Certainly defending the Constitution means protecting the people of the United States from their enemies, but it has always meant protection in a stronger and broader sense of a certain political system embodied by the Constitution.

Second, the presidential oath of office is different from every other oath in specifically using the phrase "preserve, protect and defend" the Constitution rather than simply an oath to "support." Lincoln, in particular, believed that the difference in language, and the more pressing language of the presidential oath gave the president greater power and executive scope of action in emergency - he believed it gave him constitutional authority for at least part of his unprecedented exercises of presidential power in the Civil War.

It is noteworthy that Vice Presidential counsel David Addington - someone whom I have described as somewhere between Zen monk and thug - is painted by Jack Goldsmith in The Terror Presidency as a close student of Lincoln and a believer in the view that those additional words in the presidential oath carry a genuine distinction for executive authority.

(ps. I see Diane Marie Amann making much the same correction re the exact language of the oaths, here. Great minds, of course, naturally think alike!)

A first draft, disorganized list of questions for counterterrorism policy to answer in a new administration

I am working at this very moment on a short commentary for a law review tentatively titled (the law review does not know this yet), New FAQs for the War on Terror: Questions That Counterterrorism Policy Must Answer in a New Administration.

I am gradually developing a list of questions that constitute questions that define the policy divide on various matters of law. In no order at all - really completely disorganized - and without trying to make the language pretty or pithy, here is the beginning of the list:

Is administration detention in principle ever permissible? Or must it always come down to, as the UN special rapporteur asserted in a debate a couple of weeks ago with me at ASIL, try them in a reasonable time or let them go, and that principle transcends whatever specific, technical legal structure you employ?

Can ordinary criminal trials, without special recourse, adequately serve counterterrorism needs?

Can you use some structure for trials that is outside the existing criminal law framework?

Note that legal conservatives Rivkin and Casey oppose the move to a national security court precisely because they believe that only commander in chief authority and the law of war provide the constitutional basis not to have ordinary criminal trials. It is the conservative analogue to the position of the rights groups: they likewise do not think that you can constitutionally have special procedures even if it is "civilian."

Is waterboarding torture, or otherwise always impermissible?

In interrogation practices, does it matter what you know about the person - their degree of knowledge and culpability - - and the risk to others reasonably assessed - situational ethics, so to speak - in determining what you can permissibly do to them short of torture, however specifically defined? Are you allowed to do to KSM things, while still short of torture, that you are not allowed to do to someone about whom you know nothing?

Will the citizen (and resident alien, really) v noncitizen distinction continue to apply; and will the territorial v nonterritorial distinction continue to apply in counterterroism legal regimes?

The current administration position is that citizens cannot be subjected to illegal enemy combatant treatment. Increasingly, rational terrorist groups will seek to recruit Americans or American passport holders - the situation will come to resemble that of Western Europe, where the terrorists are "yours" - and a special legal regime premised on noncitizenship or nonterritoriality will not do what you intended when designed around Guantanamo Afghan prisoners.

Is it okay to change the legal criminal rules for CIA personnel midstream?

Ex post facto problems? Simple fairness? Consider how much of the wrangling in the Judiciary Committee has really had this as the predicate unstated.

What must and should be got from Congress, and what is the obligation of the judiciary to defer to the united political branches on counterterrorism and national security policy?

Will the judiciary defer? Heck if I know.

What is the application of international human rights law to all of this, apart from domestic US law?

How should it interact with the laws of war in the existing situation, and what about its application to the US domestically or abroad?

How should future detentions be governed?

Under what structure? Nearly all the existing regimes have been built around the "legacy" Afghan prisoners. Over time, however, new adminsitrations will almost certainly detain people who might or might not be citiziens, might or mght not be in the United States.

Most importantly at this moment - not a hypothetical category - the US is currently detaining thousands of people in Iraq, including a large number of foreign jihadis. A possibly unavoidable issue for a later administration is what happens to those jihadis whom the United States has concluded it cannot try for any particular crime but whom it cannot let go free - to go make jihad in Iraq again, or Afhstanistan or Pakistan or thailand or Indonesia or Malaysia etc. What should it do?

When will any of this get taken up in a serious way, if ever?

(And, most important, why can't I use block quotes or bullets without screwing up the letter justification on Blogger?)

President or Prime Minister of Spain?

In my Weekly Standard piece on the Madrid bombing verdicts, I referred to the Spanish Prime Minister. A friend quite properly queried me about it, pointing out that in Spain, and in the Spanish newspapers, the head of government is referred to as the President. I, of course, had a moment of fact-checking panic. Especially if you lived in Spain through an election, as I did in 2004. However, it turns out that either term is okay in English. I quote from Wikipedia below, but I had it double checked by a Spanish lawyer at my law school for accuracy.

Also, I should have been clearer that Aznar was not standing for reelection; the new head of his party was; I was trying to save space and ran over that a bit. Finally, editing error on my part - the second bomb attempt on the Seville-Madrid rail line was several 'days', not several 'weeks', after the March 11 attacks. (My thanks to my editor at La Revista de Libros, for drawing that to my attention. I knew I should have asked him to look at this before it ran!)

From Wikipedia:

***
Official title

The Spanish head of government is known, in Spanish, as the Presidente del Gobierno. Literally translated, this title is "President of the Government" or alternatively "Chairman of the Government", but nevertheless the office-holder is commonly referred to in English as the "prime minister": the usual term for the head of government in a constitutional monarchy. However the Spanish for 'prime minister' is primer ministro; thus, for example, the Prime Minister of the United Kingdom is the Primer Ministro del Reino Unido, not the Presidente del Gobierno.

In Spain the President of the Government is often called simply Presidente, meaning 'President'. More than once this has caused embarrassing errors among foreign authorities, such as mistaking Spain for a republic. For example Jeb Bush, the Governor of Florida, mistakenly referred to the head of government as the "President of the Spanish Republic" during a visit to Spain in 2003.

The custom to name the head of government as "President" dates back from the reign of Isabella II of Spain, when the Prime Minister was called Presidente del Consejo de Ministros ("President of the Cabinet"). Before 1833 the figure was known as Secretario de Estado ("Secretary of State"), a denomination used today for junior ministers.

Election

The President of the Government is not directly elected by the people but indirectly elected by the legislature. Following legislative elections, which take place every four years, the leader of the majority party, or the leader of the majority coalition, is usually proposed as President of the Government by the King and elected by the Congress of Deputies. The First Vice President of the Government (or First Deputy Prime Minister) is appointed by the King on the proposal of the President.

To this blog's Palestinian readers researching prescriptivism and descriptivism

I noticed looking at the site meter that at this moment this blog has a number of readers from the West Bank apparently researching prescriptivism and descriptivism. Welcome - and if you have particular questions, feel free to post them in the comments and I'll try to put up some special post if it is something that I feel expert enough to answer. It's not clear from the google queries exactly in what subject matter you mean the terms prescriptivism and descriptivism - they are used in somewhat different ways across a variety of fields ranging from grammar to moral philosophy to politics and international relations. But if your question is in an area I know something about, I'd be happy to help.

More KA comment on the Madrid bombing verdicts at the Telos blog

The commentary I have posted over at the Telos blog on the Madrid verdicts is more extensive, more speculative, and less constrained that what I say in the Weekly Standard. Check it out, here, and be sure to check out Telos. A bit:

***
As it happened, the Anderson family was residing in Spain at the time of the March 11, 2004, attack—I was, ironically enough, on sabbatical studying European legal responses to terrorism. In Spain, the reaction was, on the one hand, one of stoicism ("we won't let this change our way of life"), but on the other hand, an eagerness to find a compliance behavior that would appease the terrorists ("of course, our way of life consists of appeasing bad guys, so please tell us what to do").

Perhaps it was different in Barcelona, but to be perfectly blunt, in Madrid and Sevilla, the two cities I was in at the time of the attack, the anger was directed almost entirely at Bush and the United States, and by extension then-Prime Minister Jose Maria Aznar for his support of Bush in Iraq—and very little that I could detect against the terrorists, Al Qaeda, or the Moroccan group that launched it. When, two weeks later, after Aznar had fallen and the new PM had moved to withdraw Spanish troops from Iraq, new wires for a new bomb were found strung across the high-speed Madrid-Sevilla rail line, the anguish was palpable. One columnist for the left wing paper El Pais came straight out and said, we did everything the terrorists wanted, why did they want to bomb us again? She could simply not come up with an answer.

Well, the appetite grows with the eating, and perhaps one might consider that jihad is about more than merely tactical matters such as presidential elections and who is in or out of Iraq among Western Europeans. I was once a religious missionary, and I have some idea of religious fervor, even of a peaceful kind—of what it is like to hold even a mildly eschatological worldview—and to do so within a segregated male society that holds itself apart from the rest of the world.

This is not a wicked thing, as such, of course, but it is easily disoriented and disorienting. Couple that to an eschatology of jihad—pronounced by CAIR and Islamic apologists at every turn to have been theologically tamed into mere metaphor, a spiritual journey and not a physical war, and someday, someday that might be true, but it is far from true now—that is violent and looks to the very long term for its payoff, and you have something that is simply not comprehensible on the worldview, the eschatology, if you will, of prosperous, aging, but childless and child-like Western Europeans. It is particularly hard for the Spanish to understand that Islamism covets Spain; the land of Al-Andaluz genuinely has become special in the minds of Islamists.

Sundays with Stendhal 8

It is only in order to avoid being cooked in the next world in a cauldron of boiling oil that Madame de Trouvel resists Valmont. I cannot understand why the thought of having a cauldron of boiling oil as a rival does not drive Valmont away through sheer contempt.

(On Love, chapter 57, 'The Thing Called Virtue'.)

Telos, the critical theory journal and its blog - my comment on the Madrid verdicts

Over at the website for Telos, the critical theory journal, I have posted more commentary on the Madrid bombing verdicts. Here.

Telos is a journal with a fascinating intellectual and personal odyssey from its first days as a New Left theory journal until today. Its founding editor, Paul Piccone, was someone I adored, fought with, yelled at, over the years. Leaving NYC for DC in the mid-90s, we lost touch more or less - on his part, Paul had married and was spending more and more time upstate. His tragic early death from cancer left a big void.

Paul's widow, Marie, has decided to keep the journal going, and Stanford professor Russell Berman, also one of my favorite people and favorite intellectuals, has taken over as editor. It is gradually moving onto the web - by Spring 2008 - and the intellectual lineup is utterly fascinating. Telos's politics have fragmented over the years in various directions - some of us have moved right in various ways, others left, and others in different directions in areas of radical ecology, etc. The alumns of the Telos editorial board would quite stun you - after all, this was a journal that had no academic home, its editor, Paul, having been pushed out of academia early in his career. It has always been a place for non-careerists. No one ever got anywhere in the academy by an affiliation with or publication in Telos; often quite the contrary.

However - just off the top of my head among the Americans, let alone the rest of the world ... the leading corporate law theorist Joe McCahery, the Giuliani biographer and former City Journal editor Fred Siegel, theologian and feminist theorist Jean Bethke Elshtain, Jean Cohen, Andrew Arato, anyway the list of very long. Indeed - note to Russell! - it would be a very interesting thing to put up a complete list of all the editorial associates of the journal going back to the beginning. Not a bad way to advertise.

I owe several intellectual debts to Telos and Paul Piccone in particular. One was that, because it was never about academic career, it was always open to ideas and energy - within a certain intellectual tradition, to be sure - from young people outside the usual boxes. It was open to short pieces from me even as an undergraduate, and gave me a start in thinking about how to write intellectual pieces. Second, it gave me a vantage point from outside the Anglo-American analytic philosophy I had been doing to see that as an intellectual enterprise within a larger frame - it introduced me in a serious way to theory that went outside the confines of analytic philosophy, while analytic philosophy had the very important role of disciplining that thought and pointing out how frequently Continental philosophy got intellectually unmoored. It was a useful point-counter-point. Put another way, third, Telos introduced me to a discipline quite in low esteem within analytic philosophy - intellectual history. Philosophy as I understood it at UCLA was ahistorical - something like economics today - and existed as though free from all connections to the history of ideas. Telos took intellectual history very seriously and helped give me a frame in which to understand the "moment" that gave us Anglo-American analytic philosophy - not to mention a certain class analysis on its pretensions. Fourth, Telos gave me - a rather shy and not very confrontational scholarly type - a place to be able to freely argue politics and positions without pre-conceived outcomes. This led many in Telos to much more conservative positions than would have been conceived in its 1968 New Left days (when I was a child and not around for it) but it was a journal that was utterly alien to the idea of political correctness, which was a big reason why people like Paul had not survived in the academy - too blunt, to impolitic. Paul could be brutal, but he was always honest. Where in the academy do you find that?

So it is with great pleasure and a sense of gratitude stretching back several decades that I look to get more heavily involved with Telos. I am interested in where critical theory is going, and of course no journal has a better grasp of that than Telos. No journal has a longer, deeper set of connections to this theory in Europe. So, if you are theoretically inclined, you should subscribe and read it, and get your institution to do the same. The physical copies are one of the great pleasures to have in an office library - I'm being shallow here - with decades and decades of bright, cheerful, insouciantly unacademic cover colors. And perhaps you should get involved - if you do critical theory, under a broad church label, drop a proposal to Russell Berman and see if he thinks it would fit within Telos's currently broad-church theorizing.

I myself am interested in doing a special little section, perhaps five short articles and a couple of comments on all of them taken together, on the subject of ... neutrality. Telos seems like a good place to take up the concept in critical theory, philosophy, law, politics, social theory, and history. What do you think? In any case, I plan to post monthly or bi-weekly short topical comments over at the Notes and Comments blog at Telos.

Julian Ku brief note on Brooklyn conference on corporate liability in international law and ATS cases

Julian Ku, over at Opinio Juris, here, mentions a conference at Brooklyn Law School on corporate liability in international law. I share much of Julian's view, briefly expressed in this post. I'd add that in informal discussions with non-US international lawyers, they not infrequently express discomfort at the way in which ATS law in the US is evolving and going its own way - a kind of specialized US version of international law for purposes of ATS litigation. It puts them in a difficult situation, because they frequently like the results but dislike the process and what it suggests for the fragmentation of international law as US courts do their own thing with it. Hence the frequent hesitation to pronounce publicly on the issue.

I do hope the Brooklyn conference will publish something, however; the problem, of course, is that there are lots and lots and lots and lots of academic conferences on this topic, not infrequently organized by my school, consisting of academics and politically committed students announcing a political agenda in the hushed tones of academic international law, and never giving a thought to actual arguments on the other side. Whereas, in these areas, it's not just policy arguments on the other side, there are lots of doctrinal ones, textual ones under international law.

Reaching the conclusions reached by the ATS courts on things like civil liability for corporations in these cases requires unabashedly heroic assumptions. Or else it requires what Judge Weinstein did in his last Agent Orange case: simply a lofty assertion that it would be inconceivable that a US court would avoid imposing tort liability because of the corporate form, but thereby negating the altogether quite conceivable implication, however, because that is the plainest reading of the treaty law, that international law (at least if you get away from what American professors and their students think) does not actually conceive of either corporate liability as such or civil liability for corporations as such. It is an interesting form of the sucker's bet, really: ATS litigation today consists of wanting to have (and mostly getting) all the goodies and none of the burdens of US domestic law in international human rights litigation, while wanting to have all the of the goodies and none of the burdens of international law.

KA in Weekly Standard this week on the Madrid bombing verdicts

Advertisements for myself, with apologies, but apparently not enough to deter me ... I have a short piece in the Weekly Standard, November 26, 2007, this week, on the failure of the Madrid bombing verdicts (announced on October 31) and what they suggest for the success or not of counterterrorism in ordinary criminal trials. Here at the Weekly Standard (open link).

It is remarkable to me, as I suggest at the very end, that somehow the debate among elites in the US has circled around again to the position, among academics and activists anyway, that ordinary criminal courts for counterterrorism are perfectly okay. That is not the position of any of the leading presidential candidates, of course, neither Republican or Democrats, nor is it the position of Congress when actually forced to a vote that might be one day put in front of their constituents. But it is the seeming consensus of elite opinion. I would not have believed that we would be back to arguing about the ability of ordinary courts to deal with serious counterterrorism, but at least in academic circles, that's where we are - and the disconnect between that discussion and the actual political process, the Democrats (and, we might add, the Republic of France) included, is profound. Excerpts:

***
The Failed Madrid Verdicts
Why counterterrorism trials won't work in ordinary courts.

by Kenneth Anderson

The Weekly Standard
11/26/2007, Volume 013, Issue 11

On October 31, a Spanish court handed down verdicts in the trial of suspects in the March 11, 2004, terror attack on Madrid's Atocha train station that left 191 people dead. The Madrid bombings stand alongside the 2005 London bombings as the deadliest terrorist attacks in large Western cities since 9/11. The trials following on those attacks stand as important tests of the ability of Western legal systems to deter and prevent terror via ordinary criminal law mechanisms.

The results are not promising--not with respect to punishing terrorism, let alone deterring or preventing it. Spanish prosecutors were able to secure only three murder verdicts among the 28 defendants, many of whom, although not the actual bombers, were plainly implicated in planning and carrying out the attack. And the Spanish criminal justice system is far more accommodating to prosecutors than the American system. Given the overwhelming nature of the evidence available to objective observers as to the involvement of many of the accused, the failure to secure justice once again raises serious doubts about the adequacy of ordinary criminal trials for dealing with jihadist terrorists, whether in the United States or in Europe.

Many critics of the Bush administration have reached the opposite conclusion. Noting the absence of successful attacks in this country since 9/11, they conclude that this owes little to the government's counterterrorism efforts but instead means the actual terrorist threat has been greatly exaggerated, 9/11 notwithstanding. It is therefore time, they argue, to eliminate the Bush administration's extraordinary measures, such as military commissions, detentions at Guantánamo, or warrantless wiretapping, and to relocate counterterrorism within the ordinary criminal justice system. The only acceptable approach to terrorists, many highly credentialed experts maintain, is to charge them with crimes and try them, or let them go. This may be a heroically noble human rights policy, but ordinary citizens will be forgiven if they find it criminally negligent of public safety.

By happenstance, I was living in Spain with my family at the time of the Madrid bombings, on sabbatical studying, ironically, legal responses in Europe to terrorism. Reaction in Spain to the bombings was a curious mixture of fatalism and appeasement, publicly cast as stoic defiance ("terrorists will not change our way of life") but also exhibiting a measure of collectively sticking one's head in the sand and hoping the threat would just go away.

***

Although the bombers themselves, tracked down by security forces, blew themselves up in a barricaded apartment to avoid capture, police had gathered extensive evidence on their principally Moroccan organizers, planners, and controllers. Suspects were arrested, held in investigative detention, and finally--not until three years later--tried on charges including murder, supplying explosives, conspiracy, and membership in a terrorist organization. The sprawling trial went on for months in a courtroom in Madrid. In the process several suspects were released for lack of evidence. Were it not for provisions of Spanish law allowing mere membership in an organization to be a crime, Spanish justice would have had astonishingly little to show for 191 deaths and more than 2,000 wounded, a point clearly recognized by a less than satisfied Spanish public and families of the victims.

What went wrong for Spanish prosecutors? They had to rely on masses of circumstantial evidence, including crucial telephone conversations gathered in third countries such as Italy, which were subject to lengthy debate over translation, provenance, and reliability. None of the 28 confessed. Command and control, planning and coordination, although uncontroverted by serious security experts, nonetheless was too diffuse to satisfy the properly strict requirements of ordinary criminal justice in dealing with ordinary criminals. Fernando Reinares, until recently the Spanish government's senior counterterrorism adviser and now an expert at Spain's highly respected, nonpartisan Elcano Royal Institute, remarked that the trial judge did not admit "the extraordinary mass of circumstantial evidence" that is "crucial when you are trying members of a nebulous group of international terrorists."

Convictions were obtained on lesser charges, for most defendants, while others were acquitted for lack of evidence. These mixed convictions send the message to Western observers that justice was heroically impartial. If, instead, one accepts the reasonable assessment that most of the defendants were guilty (including guilty of the murder of 191 people), but that the legal system was incapable of showing it within its own highly circumscribed terms, then the message to jihadist observers is that they can game the system. Crucial to that is keeping legal accountability for jihad within the strict terms of ordinary Western criminal justice, designed for ordinary criminals committing ordinary crimes--circumstances in which punishment is an important element of deterrence, and people do bad things for reasons of personal passion or gain, not for God and the promise of heaven.

Disturbingly, these failures for prosecutors occurred in a legal system far more flexible and prosecutor-friendly than the American system. Spain allows a judge to consider hearsay evidence, for example, and effectively whatever evidence the judge considers of adequately probative value. More remarkably, it is a system that allows incommunicado detention of suspects for up to 13 days--a shocking provision, by American standards. Moreover, the Spanish conception of pretrial detention is so loose as to begin to resemble administrative detention--most defendants had been held for years before they were finally tried. The Spanish criminal code permits mere membership in an organization deemed terrorist (rather than actual acts and participation) to be criminalized. It is highly unlikely that American prosecutors (despite what they sometimes naively say) could have done better, given an American criminal justice system that is far more generous to defendants.

So the Madrid verdicts stand as a warning that ordinary criminal justice is not necessarily capable either of ensuring public safety or even of doing justice in serious terrorism cases. Prime Minister Zapatero solemnly announced afterwards that "justice has been done," but he could not mean that in substance--only that the procedural rules of a judicial system gamed by the jihadists had been followed. The Elcano Royal Institute's Reinares remarked, more accurately, that Spanish courts would have to change their rules of evidence if the country was to defeat Islamic terrorism, because jihadist terrorism "leaves a different kind of footprint" that conventional criminal justice cannot adequately process.

Meanwhile, the debate in the United States comes down once again to this same question of whether ordinary criminal justice can keep Americans safe and bring real justice to those who, in fact, commit violent jihad. It is remarkable and dismaying that the argument has circled back yet again, for the evidence that it can, looking to Madrid, is no better now than it was when many of us thought the question had been definitively answered in the negative--on 9/11.

Kenneth Anderson is a member of the Hoover Institution task force on international security and law, and a professor at American University, Washington College of Law.