Delilah

Okay, admit it, people, you like the Delilah song, even if you're not about to start wearing a "I am Delilah" T-shirt. And even though you are probably wondering (as I did listening to the five 14 year old girls in the car sing along at the top of their lungs) if the issue of the song isn't, as it says, "Oh, it's what you do to me," and instead what, given that she's a "thousasnd miles away,' what she isn't doing to him. Clearly I have given this too much thought, but the dang thing is a cute melody and I can't get it out of my head.

(ps. I've been reading Daniel Leviton, in his Your Brain on Music, about the process by which these snippets of songs get locked in your head. Usually a fifteen to twenty second clip of a song which is typically easily singable even by a person who is not especially musical. It seems to get locked on a repeating loop. This is precisely what happened to me with the endlessly chirpy chorus of the Delilah song for a couple of days. With me, one loop often replaces another, and in this case, it was replaced by chunk of the Rolling Stones' She's So Cold. Go figure.)

Manuel Noriega extradition to France

The AP has a story today on the holding by a US district court judge that former Panamanian dictator Manuel Noriega can be extradited to France to face charges there. Here. The judge, senior judge William Hoeveler, was also the judge who originally presided in Noriega's trial in Miami back after Noriega's capture following the US invasion of Panama; Noriega was convicted in 1992.

As it happens, I was monitoring Panama for Human Rights Watch at the time of the invasion, and went there with then Americas Watch director Juan Mendez; we produced a long report on the laws of war in the invasion and aftermath. Later on I wrote Human Rights Watch's amicus brief in the Noriega trial, submitted to Judge Hoeveler; we argued that Noriega was entitled to POW status, as I recall. The US government, which had originally taken the position that he would be entitled to POW status, changed its mind and submitted a new letter from DOS saying that he was not entitled to POW protection as head of state, despite his uniformed status and rank.

Judge Hoeveler issued a ruling - I do not have it in front of me, so it is possible I misrecall precisely how it came out, but as I recall it - in which he took the position that, as a District Court judge, he believed that on the merits Noriega was entitled to POW protection, but that as a matter of the court's jurisdiction, he lacked the power to make the government follow that order. In the event, the US government agreed in negotiations that it would treat Noriega as though he were a POW, with respect to the conditions of his confinement, without conceding that it had to treat him that way as a matter of either international or domestic law, and without conceding anything concerning other aspects of his treatment, including extradition. There was a sense, again as I recall, that the basis of Judge Hoeveler's legal ruling did not need to be tested by either side, in either direction, given the government's positition. And there it rested.

Now, Judge Hoeveler has ruled that his original ruling was not intended to allow claims of POW status to act as a shield against trial for serious crimes, whether in the US or elsewhere. If you go back to the original judgment - which took very serious account of HRW's amicus brief - I believe the judge is correctly stating his own original position. Whether it was entirely legally consistent or not, the original judgment was plainly seeking to accommodate concerns over POW status while not allowing that to be used as a means of avoiding a trial in regular US courts. (Part of this was motivated by the fact, however, that Noriega's lawyers at the time were very worried that Judge Hoeveler might actually push them into a military court martial, in which under the UCMJ, Noriega might fare worse rather than better than in a US district court trial - they wanted POW benefits for terms of confinement, but not the risk of a military trial.)

Hence Judge Hoeveler, as I understand the record then and now, has not changed his mind at all, but is accurately stating the position he took in 1991; it may not be a position entirely consistent with either domestic law or international law, having split the difference in various ways, but what he says to do is consistent with what he said then. Nor does it represent a change of position on the part of the USG which, so far as I understood in both the Bush I and Clinton administrations, viewed arrangements as an accommodation by the US, not a requirement of international law, and limited to the conditions of confinement and not further.

***
That said, I have changed my own view regarding head of state who happens to wear a uniform or who is by law the commander in chief. I do not believe, contrary to what I wrote in the HRW amicus brief, that there is an obligation to treat political leaders, who are as a matter of evident fact political leaders, as POWs simply because they happen to bear military rank. The US took a different position with respect to Saddam, and I think it was not legally required under GCIII, nor was it a wise precedent.

Preventive detention in counterterrorism

(Update, Saturday, August 25, 2007. Let me recommend the exchange of comments between Marty Lederman and Nathan Wagner - thoughtful, and capture the views at issue very well. Welcome, Marty and Nathan, and thanks for your thoughts.)

In response to a question someone put to me about civilianizing the current regime of detention and trial. One among the several reasons why I favor transition from a law of war framework for detention to a regime of a civilian national security court and preventive detention arrangement is that over the long term, terrorist risks to the United States seem to me likely to come increasingly from US citizens and dual nationals (a category that needs to be revisited on both principled and practical grounds).

Those are the people I would be seeking to recruit for terrorism over the long term. I would also be seeking to radicalize Muslim communities and especially youth within the United States - a process already well advanced in Britain - to provide a ground of both recruitment and concealment within the United States over the long term. I would be seeking to use Saudi money to do that - what, really, is CAIR except that? - and gradually to bring into the United States new Muslim populations with pre-existing resentments against the United States. As in Britain, universities in America are the natural secular havens for jihad (and ever more so as universities seek international tuition payments, dressed up in the high-falutin' names of 'global education', diversity, and multiculturalism: ideology suspiciously predictable as a function of the Boomers' baby boomlet passing its university years and universities scrambling to cover high fixed costs).

If terrorist risks to the United States over the long term become significantly more located among US citizens, dual nationals, and residents, and located within rather than without the United States, however, the situation becomes less and less amenable to the designation of enemy combatants and detention under a war-law rubric. As the Padilla case - taken as a whole saga, and not simply the guilty verdicts - shows, courts and, indeed, the public are highly unlikely to accept executive power as the vehicle and the law of war as the substantive law within the domestic United States for US citizens, at least over the long term. Indeed, as much a supporter of the war on terror as I am, I also think it would be legally and morally wrong to treat US citizens in this way. Legitimate emergency powers of the executive cannot be indefinitely extended; it starts to look way too much like Chile's endlessly renewed national security state under Pinochet.

There is moreover a strong civil liberties argument to be made here for why these terrorism cases should be separated from the rest of the criminal justice system. I asked one expert recently what he learned from Padilla, and he said, you must make everything indictable: conspiracy and material support for terrorism in everything but formal name co-incident with adherence to a group. Extend and dumb down the requirements in order to secure convictions. (And anyone who believes that this did not start out under the Clinton administration does not remember the terrorism legislation of 1996, among other things.) Those provisions inevitably bleed over to the rest of the criminal justice system - the Patriot Act, for example, sold to the public as specific to counterterrorism, applied to child pornography and drug crimes and what have you. We need, rather, to increase the civil liberties protections of the existing criminal justice system and (as the Duke case is far from alone in showing) rein in the out-of-control system of prosecutorial discretion. The problem with prosecutorial power in the United States is not the obviously illegal actions of Mike Nifong, but the existing unfettered but legal discretion in the hands of prosecutors nationwide.

But those reforms cannot happen if that same criminal justice system is the front line of defense against terrorism. If you are serious about counterterrorism, then the system will inevitably become even more prosecutor-friendly - to create what, for example, Spain has, effectively an informal preventive detention scheme dressed up as the discretion of the investigating magistrate. It will not be confined to matters of counterterrorism: it will gradually extend itself over the whole criminal justice system, as it is already doing.

If you also accept, as I do, not only these civil liberties arguments, but moreover that the conventional criminal law paradigm is grossly inadequate to prevent terrorist attacks, and not merely investigate them afterwards - I am sorry, but the Padilla conviction offers very little comfort in the matter of prevention - then you need some alternative. The best alternative, in my view, is to give up the war paradigm with respect to counterterrorism within the United States by its own nationals, and shift instead to a civilian national security system endorsed by both political branches of government, legislatively authorized, with a civilian national security court and powers of preventive detention.

Professors requiring students to attend a teach-in?

Look, I don't want to get all sternly moralistic and ranty, but I can't say I understand the unsolicited email received a couple of weeks ago and which I just now read. It is an invitation for what it calls a "teach-in" on the topic of climate change, peak oil, and global resource depletion co-sponsored at George Washington University by the organizations listed in the email, all of which might well do interesting work (as indeed I personally know to be the case of first two) but none of which could be described as academic or scholarly in the sense of disinterested; they are all activist organizations. Which is fine - I see much virtue in scholar-activism, and do a lot of it myself - until I get to this statement in the email:

"In response to faculty demand, we are offering full scholarships to students whose professors require them to attend the Teach-In. In return, we simply ask students to volunteer one 2-4 hour shift during the weekend."

My goodness, is it really okay for professors to require students to attend an activist teach-in? Is there really "faculty demand" for this? And is it really okay to "ask" those same students to "volunteer" (?) a shift during the weekend?

The program sounds, in fact, very interesting and valuable. If you look at the full program, here, it has a dynamite line-up of speakers from around the world - I might attend myself and would certainly encourage students to do so. It's a great program - don't misunderstand the source of my question.

But looking over the speakers and the program, I am doubtful that it is a genuinely disinterested, scholarly endeavor that a professor could or should require students to attend, at least not by my own professorial ethics, although I am open to hearing other views on this. There appears to be pretty deep agreement among the participants on the fundamentals of things; it appears to be explicitly political and activist. It does, after all, call itself a teach-in.

This is great for certain kinds of conferences, teach-ins, etc., where the whole point of the meeting is to discuss things from a certain point of view, from a certain starting place of policy. For example, one of these days soon I hope to help put on a conference that debates the idea of a national security court - and the explicit organization of the conference would be a first part in which the whole idea, good or bad, is on the table - but a second session in which participants discuss what such an institution might look like, if one set aside or suspended disbelief about the fundamental desirability of such an institution. Yet I myself would be dubious about requiring students, even as part of a class on national security, to attend that second session. But perhaps others feel differently, and perhaps that is a different case because such a conference would have many speakers willing and given a space to debate the whole idea.

That does not appear to be the case of the GW teach-in. It appears to start from a pretty fixed political point. And perhaps I am overreacting to the term teach-in - although it is not my term, but the organizers, which does serve to put its own activist spin on things. In any case, I have serious doubts that one ought to be requiring students to attend a conference that starts out from so given a political or policy point of view, much less volunteering them for service in lieu of fees.

But perhaps I am just putting the worst spin on this and there is some ordinary explanation. I am also curious about the views of other professors on the ethics of requiring students to attend outside events that have a large activist component and a serious political and policy commitment that is not really open for discussion.

***
Email text of 8/13/2007:

Dear faculty friends,

Would you like to bring your entire class to the Teach-In this fall, but can’t ask students to pay an additional fee?

In response to faculty demand, we are offering full scholarships to students whose professors require them to attend the Teach-In. In return, we simply ask students to volunteer one 2-4 hour shift during the weekend.

Individual scholarships are also available to students and community members who would otherwise be unable to attend. Please download the scholarship application form at www.ifg.org

Please contact Janet Redman at janet@ips-dc.org or (202) 234-9382 x215 for information on class scholarships.


--------------------------------------

TO SEE MORE INFORMATION AND VIEW THE FULL SCHEDULE, CLICK THIS LINK http://www.ifg.org/


TEACH-IN: Confronting the Global Triple Crisis
Climate Change, Peak Oil & Global Resource Depletion
September 14-16, 2007
The George Washington University
Lisner Auditorium
730 21st Street, NW, Washington D.C.

Co-Hosted By:
International Forum on Globalization
Institute for Policy Studies
Global Project on Economic Transitions
George Washington University Progressive Student Union

"Did you think you could lose that much money and no one would notice?"

So. The bad African warlord made his $200 million in blood diamonds and entrusted it for laundering to the international bad investment guy Le Chifre who, instead of putting it into safe investments, has lost it all gambling on uncovered options. Le Chifre hopes to win it all back in a high stakes poker game at the Casino Royale. Blood diamond warlord shows up in Le Chifre's hotel room and snarls, "Did you think you could lose that much money and no one would notice?"

A slogan for the credit crisis? From Casino Royale!

(And when the British government's financial representative, Vesper Lynd, refuses to authorize another 5 million for Bond to buy back into the game after Bond loses 10 million, he is staked by none other than the CIA's Felix Leiter ... thus putting the US government in the familiar position of ... Moral Hazard!)

(Update. It occurs to me that Moral Hazard would be a pretty good name for a Bond Girl.)

Duncan Hollis at Opinio Juris on the future of the EU

Duncan Hollis, over at Opinio Juris blog, here, has a very interesting, thoughtful, and informative discussion of the negotiations over the future of the European Union. (I wonder what my WCL colleague Fernanda Nicola - our EU-law star - thinks the EU future holds?)

Henry Kaufman in WSJ on the credit crunch, liquidity, and hedge-quant funds

Henry Kaufman has a superb piece on the opinion page of the Wall Street Journal today, August 15, 2007, on the fundamental causes of the credit crunch. Behind the subscriber wall, here, but highly, highly recommended. Henry Kaufman, "Our Risky New Financial Markets," WSJ, August 15, 2007, opinion page.

The blurring of the distinction over time between "liquidity" and "credit availability" is crucial, as is his point about the limitations of the quantitative financial models. I must say, as a corporate finance professor, parts of this look remarkably similar to the problems of Long Term Capital a decade ago - the quant manager saying that there had been three successive days which the models predicted would occur only once every 10,000 years, the belief that the models had successfully hedged whereas the price movements in actual markets indicated otherwise ... combined with, as Kaufman points out, the emergence of financial institutions that are regarded as too big to be allowed to fail (and, a very striking point, his assertion that this very fact is part of what drives consolidation in the financial services industry - as the smaller players face the necessity of being part of an operation too big to fail) and the attendant moral hazard ... the risks are there to be seen.

If, of course, the market will not be allowed to operate, then moral hazard can only be avoided by more stringent regulation, which Kaufman is skeptical will come about.

Some excerpts:

***
The principal structural driver behind this and similar financial tribulations is the massive growth of financial markets, combined with a plethora of new credit instruments. By any measure, current financial activity -- new financing or secondary market trading volume -- dwarfs the past. The outstanding volume of nonfinancial debt now exceeds nominal GDP by $15 trillion, compared with $6 trillion a decade ago. Traditional credit instruments such as stocks, bonds and money-market obligations have been joined by a long and diverse roster of new obligations, many of them extraordinarily complicated. Along with the arcane tranches of mortgages that recently garnered attention are a myriad of financial derivatives, ranging from those traded on exchanges to tailor-made products for the over-the-counter market.

Leading financial institutions have grown rapidly as well. More importantly, they have evolved to become integrated, diversified, global enterprises that bear little resemblance to traditional commercial banks, investment banks or insurance companies. As these giants grow and dominate the market, they carry enormous potential for conflicts of interest -- they simultaneously act as investors of their own massive assets and as dealmakers and consultants on behalf of their clients. And their reach into the financial system is so broad and deep that no central bank is willing to allow the collapse of one of these leviathans. They are deemed "too big to fail."

These structural and institutional changes have, in turn, encouraged a new understanding among market participants of liquidity. In the decades that followed World War II, liquidity was by and large an asset-based concept. For business corporations, it meant the size of cash and very liquid assets, the maturity of receivables, the turnover of inventory, and the relationship of these assets to total liabilities. For households, liquidity primarily meant the maturity of financial assets being held for contingencies along with funds that reliably would be available later in life. In contrast, firms and households today often blur the distinction between liquidity and credit availability. When thinking about liquid assets, present and future, it is now commonplace to think in terms of access to liabilities.

This new mindset has been abetted by the tidal wave of securitization -- the conversion of nonmarketable assets into marketable assets -- that swept across the financial world in recent decades. This flood of marketable assets not only has eroded traditional concepts of liquidity, it has stimulated risk appetites and fostered a belief that credit usually is available at reasonable prices.

***
These two developments -- securitization and the seamless interconnectivity of markets -- have brought intricate quantitative risk modeling to the forefront of financial practices. Securitization generates market prices, while information technology offers the power to quantify pricing and risk relationships. Few recognize, however, that such modeling assumes constancy in market fundamentals. This is because modeling does not adequately account for underlying structural changes when attempting to calculate future risks and prices.

Nor can models take into account the impact of growing financial concentration in the making of markets and in the pricing of securities that are traded infrequently, or that have tailor-made attributes. And what about the risks to financial markets of a major military flare-up, the ravages of a pandemic flu, a terrorist attack that would immobilize computer networks, or even shifts in the broader monetary environment? Do the models quantify these and other profound risks in any meaningful way?

Then there is the question of asset pricing. An essential component of successful risk modeling is accurate pricing of the securities used in the analysis. Here, again, the strictly quantitative approach shows its weaknesses. Accurate pricing is a thorny challenge. In rapidly moving markets, the price of the last trade may be invalid for the next one. The price a dealer is prepared to quote may be no more than an indication of a potential trade. And the price quoted may be valid only for a small quantity of assets, not for the full amount in the investor's portfolio.

***
At the heart of the long-term underlying challenges that face the U.S. financial system is the question of how to enforce discipline. One way is to let competitive forces discipline market participants: The manager who performs well prospers, while those who do not fail. This is the central precept of free market economies. But this approach is compromised by the fact that advanced societies typically do not allow the process to follow through when it comes to very large financial institutions. The fear is that the failure of behemoth financial institutions will pose systemic risks both here and abroad.

Therefore, market discipline falls more heavily on smaller institutions, which in turn motivates them to merge into larger entities protected by the too-big-to-fail umbrella. This dynamic has driven financial concentration and will continue to do so for years to come. As financial concentration increases, it will undermine marketability, trading activity and effective allocation of financial resources. (Ital. added KA)

If competition is not allowed to enforce market discipline, the most viable alternative is increased supervision over financial institutions and markets. In today's markets, there is hardly a clarion call for such measures. On the contrary, the markets oppose it, and politicians voice little if any support. For their part, central bankers do not possess a clear vision of how to proceed toward more effective financial supervision. Their current, circumspect approach seems objectively technical, whereas greater intervention, they fear, would seem intrusive, subjective, even excessive.

What is missing today is a comprehensive framework that pulls together financial-market behavior and economic behavior. The study of economics and finance has become highly specialized and compartmentalized within the academic community. This is, of course, another reflection of the increasingly specialized demands of our complex civilization. Regrettably, today's economics and finance professions have produced no minds with the analytical reach of Adam Smith, John Maynard Keynes or Milton Friedman.

Listening to Rufus Cappadocia, jazz cellist

I discovered Rufus Cappadocia, a Canadian born jazz cellist, a while back cruising through YouTube videos on electric and jazz cello. His techniques, range from percussive strumming and plucking to melody lines taken from the Middle East and elsewhere, extend the range of what the cello means very considerably. I'm listening now to Transformation, off his solo cello album, and it is extraordinary - you would have no idea you were listening to a cello. It sounds like he is strumming a bass guitar of some kind combined with some kind of drum. He plays a self designed five string electric cello, with an extra bottom string on the low F. The instrument is electric but, as he says, the electronics are passive in order not to lose the overtones lost by other electric cellos (including presumably my Yamaha). I also rather liked this YouTube video of him with vocalist Bethany - he plays entirely by plucking, making his cello into a percussive, driving instrument. Here on youtube. I don't know much about acoustic jazz upright bass, but watching him play, it looks an awful lot like he's studied how upright bass is played, how the right hand is used, very loose, almost slapping the strings.

Narcissism and self esteem, a small note

In the current, long overdue discussions over self-esteemism gone amok, it is worth bearing in mind that narcissism is not self-love as such. Narcissus was fascinated with himself, and that fascination arose in part because it was himself. But, as Jackson Lears pointed out years ago in an obituary essay on the late Christopher Lasch, narcissism is more precisely not self-love, but rather than inability to distinguish between self and world.

I long ago gave up altogether on Freud, but there are still insights that resonate, and one is that narcissism, because it is an inability to distinguish between self and world, is an infantile and infantilizing condition. Because it is the condition of the infant to be unable to distinguish between fantasy and reality, between desire and world. The self esteem movement is infantilizing for exactly this reason; it erases the distinction between self and world and thrives on the confusion of the two.

But the real world intrudes, if only dimly, and produces this weird sense of fragility and mistrust and resentment of what authorities, starting with parents, tell you, because somewhere you sense that it can't be quite as easy as all that. I recall that the great philosopher of law and philosopher of literature and pyschoanlysis, Herbert Morris, for many decades at UCLA, and one of my great mentors, remarked to me that his favorite rock n roll song was "You Can't Always Get What You Want."

I wrote about this back in the mid-1990s, following Lasch's untimely death, here in the TLS, and here in the Columbia Law Review. I also wrote about it in a review of It Takes a Village, also in the TLS, and indirectly in a 2000 review essay in the Los Angeles Times Book Review on the pedagogy of reading, here, which caused great if brief consternation among private school parents in Los Angeles but got me congratulatory calls from the then mayor of Los Angeles and the then state superintendent of education in California. And much hate mail from the education schools. I touched a nerve in multiple directions.

But I think the most important article in the popular press today on this topic is this one from New York Magazine, widely noticed but no less important for it, here.

If I had four daughters and were naming them ...

This exceedingly goofy thought arose out of listening to my daughter and her friend talk about where their names came from (grandmothers in each case). Well. If I had four daughters - and this is assuming that my wife had no say in the matter, meaning this is alternative universes, possible worlds stuff - I would name them:

Sarabande (Sara)
Chaconne (Chaca?)
Allemande (Allie)
Giga (Gigi)

Daughter and friend told me this was one of the worst child-naming schemes anyone on the whole planet had ever dreamed up. Quite possibly so. I'm going to take a break and practice the cello. It is almost 8:00 pm and still feels like a steambath outside in DC today. I couldn't even get myself to go to the gym, which was not good at all. Then I'll suggest to the girls and my wife that we watch something sort of scary ... the 1950s version of ... Village of the Damned.

(Update. Renee added later on ... and if you had a fifth girl, you'd probably want to name her ... Tarantella (Tara). Hmm ...)

Wesley Clark and Kal Raustiala in the NYT on terrorists as criminals, not combatants

(Update, August 25, 2007. I have pulled up Alan Kaufman's very thoughtful response from the comments into the full post, at the end, and I highly recommend it. Alan, thanks!)

Wesley Clark and UCLA international law professor Kal Raustiala have an op-ed in today's New York Times, August 8, 2007, on why terrorists should be treated as criminals, not combatants. International Law Reporter blog has it, here.

Well. Kal Raustiala is one of the brightest international law scholars around; I have enormous respect for him and it troubles me to have to disagree, but this piece does not move me. It sets up a false dichotomy between 'criminals' and 'combatants', and then argues that the Bush administration has treated terrorists as combatants whereas it should treat them as criminals. This is an argument that has been going on since approximately September 12, 2001 - it is more than a bit of a dinosaur, I would have thought - and it surprises me that anyone would still be wanting to have it in these terms. More to the point - you can argue for pretty much all of the reforms of the system that the op-ed calls for (some of the important ones of which I in fact support) without having to go back and make claims about the fundamental wrongness of the administration's legal judgments about the applicability of the laws of war.

The cutting edge of discussion about counterterrorism policy today is, for example, Jack Goldsmith and Neal Katyal's joint call for a national security court, or Benjamin Wittes' call to have Congress legislate a comprehensive system, or my call with Elisa Massimino to civilianize the system - that's where the discussion is at, so far as I can tell, and it is noteworthy for being fundamentally forward-looking, rather than backward-looking. It's not looking to score points about the past five years, but to try and figure out how to go forward now, under current conditions. There are plenty of profound, sharp, and even bitter disagreements about that, even among the people I have just named, but it is a good deal more concerned with a new administration that with the last one.

***
Combatants and criminals, a note.

The precise legal category for Al Qaeda terrorists is "unprivileged belligerent," by reason of the fact that the group of which they are a part - and note, under the Third Geneva Convention, it is the behavior of the group, not merely the individual, that determines status - systemtically violates the laws of war and so neither it nor its individual members qualify for the POW protections of the Third Geneva Convention. That does not mean these individuals do not have a status, nor does it mean they cannot also be criminals or suspected criminals; they have a status, which is unlawful combatant. A combatant is someone who takes active or direct part in hostilities, and an unlawful or unprivileged combatant is one who takes active or direct part in hostilities but has no legal right to do so, in the case of Al Qaeda by reason of its systematic violation of the laws of war.

The consequence is that Al Qaeda terrorists are both combatants and criminals. There are plenty of issues to debate here, but what is so hard about this? Why insist, against the accepted categories of the laws of war, that it is either/or, when in fact the answer can sometimes be both? (Although my views have shifted on whether we should continue to use a war paradigm as the legal touchstone since 9-11, my basic view on the distinction of "criminals" and "enemies," stated in this immediate post 9-11 article still holds.) Why should anyone accept the op-ed's claim that to treat terrorists as combatants somehow accords them honor as though soldiers? I am not aware of people very much thinking that these days - perhaps I am mistaken, who knows? - and it does not follow as soon as one accepts, as the law does, that there are combatants who are also criminal, criminal in the very nature of their combatancy, unlawful belligerents, but that they still somehow have some part of a soldier's honor because they are an unlawful combatant. It seems to me a false dichtomy leading to a straw man.

The reason, it appears from the rest of the op-ed, is that Clark and Raustiala are concerned about the wide powers available to the executive to determine that someone is an enemy combatant and unprivileged belligerent, on the executive's sole say-so, to hold the person however long it likes without legal recourse to the coursts, and on no charges or criminal trial or conviction. Yes, these are all enormous issues, partly of international law and partly of US domestic law. But addressing those questions does not require moving to the position that combatant and criminal are either/or. The op-ed's complaint might be said to be that the Bush administration seems to believe that the president having designated someone as an enemy combatant settles all legal questions - of course it doesn't, but overreaching does not render the distinction itself legally invalid. The vital constitutional and human rights question of whether, for example, a US citizen in some US city - perhaps part of an Al Qaeda sleeper cell or perhaps not - can be treated solely on the designation of the president as an enemy combatant has virtually nothing to do with the question of whether terrorists should be treated as combatants or criminals.

To be perfectly blunt, at every meeting I have attended since 2001 - perhaps half a dozen - in which Clark spoke about terrorism, he made his centerpiece this point that terrorists are not soldiers and we shouldn't treat them that way; he does not appear to have thought about it any further than that since then. Of course terrorists are not soldiers - meaning by that the armed forces of a state under the Third Geneva Convention. But they might well fall into the category of combatant, if they "take direct [or active] part in hostilities." The question then becomes, what kind of combatant - a legal combatant, or an illegal one, an unprivileged belligerent, under longstanding categories of the laws of war? And what are the legal consequences if the answer turns out to be"illegal combatant" or "unlawful belligerent"? That question is not answered by saying 'terrorists are not soldiers', not even close.

The USS Cole attack, raised an example in the op-ed as an example of the incoherency into which the designation of combatant leads us, indeed presents important questions about how terrorism is legally defined and about who and what is a terrorist, on the basis of the targets they attack. But these important questions are not the ones raised in the op-ed. The op-ed suggests - in my view a straw man argument - that because the administration characterized Al Qaeda members as combatants, and had the attackers limited themselves to the USS Cole attack, solely on a military target, and skipped - well, what? 9/11, the African embassy bombings, the 1993 WTC attack, and a long list more - then they would had to have been treated as legal combatants rather than criminals. The fundamental premise of this argument is from an alternative universe, and a distant one at that. Why on earth are we discussing this?

(UPDATE. I see that Bobby Chesney, over at National Security Advisers, here, has pointed out something that I should have made much more explicit below. I join 100% with Bobby's point:

Among other things, Clark and Raustiala contend that:

"Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon."

It seems to me that this particular argument is missing a critical point: attacks on military objectives are indeed permitted, but only when carried out by someone with the combatant's privilege. Insofar as al Qaeda members lack that privilege, their conduct in bombing the USS Cole remains an illegal act of mass murder rather than a lawful act of war regardless of whether the perpetrators are deemed to be subject to military detention in connection with armed conflict.

Bobby is quite right on this point. What I should say, in the discussion below, is that even if you do not meet the definition of being a terrorist under international law, that is not by itself enough to show that you are a lawful belligerent with the combatant's privilege. Being a lawful belligerent is more than merely not being a terrorist within some legal definition. It is a very, very important point and I thank Bobby for making it.)

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The USS Cole attack and the definition of terrorism

But what of the USS Cole attack, in our world, with Al Qaeda is it actually is? There are, specifically, two real-world problems arising from the USS Cole attack and any claim that its perpetrators, under Bush administration standards, would have to be treated as legal combatants. The first is that Al Qaeda, under Third Geneva, article 4, flunks the legal combatancy test as an organization and therefore for its members and their operations. It is a status question for members of the organization, determined, under Third Geneva, by the conduct of the group. You don't get to do the African embassy bombings, and then claim that your attack against the Cole was legal and hence its perpetrators entitled to combatancy protections. That's simply not what article 4, Third Geneva, says. (Check to counterterrorism, UN, and laws of war tags on this blog for further discussion of the Cole problem and the definition of terrorism.)

Second, there is a problem with defining terrorism in the case of the Cole attack and it does raise problems for dealing with terrorism today. The problem is that there is, to this day, no accepted definition in international law. The point was brought dramatically home in the failure of the September 2005 UN reform summit of the General Assembly to achieve agreement on a definition of terrorism as urgently and congently called for by the Secretary General. Kofi Annan, in his preparatory document for the summit meeting, had offered a straightforward definition of terrorism that would be prohibited universally. He had thrown his full weight, his full authority, behind this - and yet it failed because the Islamic conference refused to countenance it. What did it call for? Drawing on the classic combatant/noncombatant distinction of the laws of war, it defined universally illegal terrorism to be attacks upon civilians (with some other language about seeking to coerce a government). The most elementary distinction in all the laws of war - thou shalt not make civilians the object of direct attack - could not manage to get passage in the UN as a definition of terrorism.

That said, however, it bears noting that even if that definition of terrorism had passed the General Assembly, even if it had been adopted in the universal treaty sought by Annan, it would not have solved the Cole issue. And it would not have solved the problem that Clark and Raustiala pin on the Bush administration's designation of terrorists as "combatants," albeit illegal ones.

Why not? Because the Cole attack was not an attack on civilians, but on a miltary target that, if the perpetrators were legal combatants, would be an exemplary military target, in part because of few issues of collateral damage. So, suppose that Bush designated terrorists as criminals under US law as the op-ed desires. Yet if you take international law seriously the way many international law professors tell us to, then you, as defense counsel for the Cole perpetrators, argue that you are at war with the Americans, even as a non-state actor, that there is no accepted definition of terrorist in international law, and that even the one proposed by the Secretary General would not criminalize your actions under international law. The question then becomes whether parochial American law can legitimately reach out to you to treat you as a criminal under a US long arm statute, in a way that international law does not, or whether it is an illegitimate, abusive exercise of American imperial power to treat you as a criminal. This is not a debate America would win in the General Assembly, and if you think it would be different under either Clinton or any Democrat, you have not been following the vicissitudes of the General Assembly.

Whereas by following the path that the Bush administration has trod, you can be treated, as a member of an organization that flunks legal combatancy requirements, as the Bush administration treats them - as both combatants and criminals, which, after all, under US domestic law, is what we actually think. They take "direct part" in hostilities but do so as part of a group that systematically violates the laws of war and hence does not qualify under Geneva Three. Any combatancy they undertake can be treated as illegal. Including that undertaken against targets that, if the attackers were legal combatants, would be legal targets. Why is this so crazy?

If the perpetrators genuinely were the alternative-universe pristine organization that only engaged against US miltary targets, and never targeted civilians, we would have another question - is US domestic law sufficient to criminalize behavior on a long arm basis that is not criminal under international law? The answer to that is almost certainly yes - we and other countries criminalize lots of behavior by long arm statute; the failure of international law to make something criminal does not preclude domestic law from acting. Our allies, and even states such as China and Russia, accept that domestic law can criminalize as terrorism activities that go beyond the proposed international law definition - if only from the self interest that states have, friends of ours or not, in ensuring that non state actor transnational attacks on military forces
can be treated as criminal acts. And this was the response that was given to me by most people I interviewed on the question of attacks on the USS Cole, or on British troops by the IRA, etc., by terrorist groups - the international law definition, even if codified in a treaty, would be treated as the minimum, not the maximum, of what constituted terrorism, and could be supplemented by domestic law.

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Going forward counterterrorism

I support major alterations in the legal structure of counterterrorism. I have spoken to these issues on this blog and elsewhere (see counterterrorism tag), most recently in a short piece in the Fordham International Law Journal, here. What most puzzles me about the appearance of Clark and Raustiala's piece today is that it seems to think that in order to get where it wants to go in reforming counterterrorism policy, it must get there by trashing a longstanding legal concept - unlawful belligerency, illegal combatancy - in the laws of war, and frankly demonizing a Bush administration interpretation of that concept that is very far from implausible under the terms of the Third Geneva Convention.

One may disagree with the policy and the legal application, particularly about whether it should continue to serve as the basis for US policy today, years after 9-11. I agree with parts of what Clark and Raustiala call for in the way of reform of legal categories - I won't go into my agreements and disagreements, but I do think that we ought to move, in detainee treatment, towards a civilianization of the system, as Elisa Massimino and I wrote recently in a joint paper for the Stanley Foundation. What I don't understand - what doesn't make sense to me either as law or policy or, frankly, political strategy - is why they seem to insist that their reforms arise out of fundamentally wrong and egregious application of the laws of war by the Bush administration.

The Bush administration was not wicked or crazy in viewing counterterrorism as war. Nor, having reached that conclusion, was it wicked or crazy in thereby concluding - after having first concluded to thunderous and correct denunciation, note, that the laws of war were not the proper frame for the war on terrorism, and afterwards backtracking to the position that the laws of war did apply after all, as the human rights critics demanded - that it should apply the laws of war to the war on terror. It was not wicked or crazy in using the concept of illegal combatant and unprivileged belligerent, nor was it crazy or wicked in its interpretation of the technical (non)requirements of a hearing under the Third Geneva Convention, article 5, notwithstanding my own sharp disagreement as a matter of policy. (In general, I agree with John Bellinger's views of these controversies, captured partly by his recent June 2007 speech in The Hague, and debated thoroughly over at Opinio Juris in its special guest blogging forum.)

Why do Wesley Clark and Kal Raustiala insist on making an argument for reform and change that seems to rely on the presumed egregious badness of the administration's position on war and the application of war law? Why trash a fundamental concept of the laws of war that has a long history attached to it? Why isn't it enough just to say that as applied was a bad policy then and a worse one now, and that it is time to change it? I can understand that perhaps Clark wants to energize some constituency on the Democratic left and I understand that it plays well within the limited political frame of the New York Times. But within the larger political debate in this country, and within the legitimate and important desire to find ways usefully to reform counterterrorism policy, I cannot see that linking future reform to this analysis of the past helps very much at all. It simply hardens people in their preexisting positions.

(UPDATE. Thinking over this op ed again, it reads to me as though Clark had one thing to say, what he always says about soldiers and terrorists, while Raustiala had a quite different thing he wanted to say about new court decisions in counterterrorism cases and, as the op ed says, the increasing wariness of courts to accept at face value the categories asserted by the administration. I don't think the two agendas quite come together - I don't think it is plausible, if you take the counterterrorism decisions altogether, even on a trendline, to say that courts are concluding that they have to be treated as criminals and not as unlawful belligerents. In the end, we would be further ahead if the NYT had given Kal the space to say what he thinks in a more definitive fashion - as things are, the op-ed leaves things more confused than either one author would be separately. But that's what I would have said if I were the op-ed page editor, and what do I know?)

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Clark and Raustiala:


The line between soldier and civilian has long been central to the law of war. Today that line is being blurred in the struggle against transnational terrorists. Since 9/11 the Bush administration has sought to categorize members of Al Qaeda and other jihadists as "unlawful combatants" rather than treat them as criminals.

The federal courts are increasingly wary of this approach, and rightly so. In a stinging rebuke, this summer a federal appeals court in Richmond, Va., struck down the government’s indefinite detention of a civilian, Ali al-Marri, by the military. The case illustrates once again the pitfalls of our current approach.

Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers. Under the law of war, military service members receive several privileges. They are permitted to kill the enemy and are immune from prosecution for doing so. They must, however, carefully distinguish between combatant and civilian and ensure that harm to civilians is limited.

Critics have rightly pointed out that traditional categories of combatant and civilian are muddled in a struggle against terrorists. In a traditional war, combatants and civilians are relatively easy to distinguish. The 9/11 hijackers, by contrast, dressed in ordinary clothes and hid their weapons. They acted not as citizens of Saudi Arabia, an ally of America, but as members of Al Qaeda, a shadowy transnational network. And their prime targets were innocent civilians.
By treating such terrorists as combatants, however, we accord them a mark of respect and dignify their acts. And we undercut our own efforts against them in the process. Al Qaeda represents no state, nor does it carry out any of a state’s responsibilities for the welfare of its citizens. Labeling its members as combatants elevates its cause and gives Al Qaeda an undeserved status.

If we are to defeat terrorists across the globe, we must do everything possible to deny legitimacy to their aims and means, and gain legitimacy for ourselves. As a result, terrorism should be fought first with information exchanges and law enforcement, then with more effective domestic security measures. Only as a last resort should we call on the military and label such activities "war." The formula for defeating terrorism is well known and time-proven.
Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon. For all these reasons, the more appropriate designation for terrorists is not "unlawful combatant" but the one long used by the United States: criminal.

The second major problem with the approach of the Bush administration is that it endangers our political traditions and our commitment to liberty, and further damages
America’s legitimacy in the eyes of others. Almost 50 years ago, at the height of the cold war, the Supreme Court reaffirmed the "deeply rooted and ancient opposition in this country to the extension of military control over civilians."

A great danger in treating operatives for Al Qaeda as combatants is precisely that its members are not easily distinguished from the population at large. The government wields frightening power when it can designate who is, and who is not, subject to indefinite military detention. The Marri case turned on this issue. Mr. Marri is a legal resident of the United States and a citizen of Qatar; the government contends that he is a sleeper agent of Al Qaeda. For the last four years he has been held as an enemy combatant at the Navy brig in Charleston, S.C.

The federal court held that while the government can arrest and convict civilians, under current law the military cannot seize and detain Mr. Marri. Nor would it necessarily be constitutional to do so, even if Congress expressly authorized the military detention of civilians. At the core of the court’s reasoning is the belief that civilians and combatants are distinct. Had Ali al-Marri fought for an enemy nation, military detention would clearly be proper. But because he is accused of being a member of Al Qaeda, and is a citizen of a friendly nation, he should not be treated as a warrior.

Cases like this illustrate that in the years since 9/11, the Bush administration’s approach to terrorism has created more problems than it has solved. We need to recognize that terrorists, while dangerous, are more like modern-day pirates than warriors. They ought to be pursued, tried and convicted in the courts. At the extreme, yes, military force may be required. But the terrorists themselves are not "combatants." They are merely criminals, albeit criminals of an especially heinous type, and that label suggests the appropriate venue for dealing with the threats they pose.

We train our soldiers to respect the line between combatant and civilian. Our political leaders must also respect this distinction, lest we unwittingly endanger the values for which we are fighting, and further compromise our efforts to strengthen our security.

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Comment from Alan Kaufman:

Alan G. Kaufman said...

As I sent in response to Dave Glazier's post on 10 August on this issue over at National Security Advisors:

Dave has gotten at what, for me, has always been the central problem or paradox with the "war paradigm" for counter-terrorism operations, and that is this: The term "unlawful combatant," for me, is an oxymoron. To be a combatant is by definition lawful -- even honorable. It is a status, not an act.

Combatants have the privilege to kill, and commensurately, have lost their "right to life." Combatants in armed conflict may intentionally kill and be killed by other combatants.

Combatants sometimes behave unlawfully, in which case they may be tried for their crime, for example murder, for intentionally killing a noncombatant, or other war crimes, such as intentionally attacking protected sites.

But combatant is a status, which is by definition lawful. It is actions, not status that defines "lawful," or unlawful.

"The paradox with the terrorist as "unlawful combatant" model is that it deprives the terrorist of his right to life, while denying him the combatant's privilege to kill. Thus, like a combatant, the so called "unlawful combatant" terrorist may be targeted and killed on sight regardless of whether caught in the act. Like an enemy soldier, he may be lawfully killed in his sleep, or while driving in a car to a meeting. But should this "unlawful combatant" kill a lawful combatant at any time, even while that combatant is attacking his camp, we call it murder. He is not granted the combatant's privilege.

My problem with this result is that it merges the concepts of jus in bello with jus ad bellum. In that model, we do not hold combatants accountable at law for the decision of their state to go to war. We hold a combatant accountable only for his conduct in the war. Even if the declared war is an unlawful one, the combatant is not a criminal for killing other combatants in the prosecution of that unlawful war. His behavior is honorable, even if his state is not. He is a warrior, like the warrior on the opposing side. This has the benefit of maintaining a certain limit on what conduct is permissible in war -- even ones unlawfully or wrongfully begun (which are all of them, depending on which side you are on), by governing the conduct of those doing the fighting.The term "unlawful combatant," on the other hand, makes such a person accountable, not just for his conduct in war (jus in bello) but for the decision of his "state" to go to war. He becomes dishonorable and criminal not just for his behavior in the execution of the war, but for his very participation in it.

This is antithetical to the jus in bello/jus ad bellum construct and to the modern law of war as we have known it. Remove the constraint imposed by jus in bello, and behavior in war can escalate beyond "honorable" bounds very rapidly. It takes us into the dangerous realm of "the end justifies the means." This because it allows each side to say of the other -- they started this war unlawfully, so they do not deserve the benefit of the laws of war -- we can do to them what they may not do to us . . . . This escalates rapidly as each side justifes doing worse to the other . . .This is exactly the evil that the boundary between jus in bello and jus ad bellum seeks to inhibit. Why does this happen to us now?

Because terrorists - the kind we fight these days --do not act for a state. They act for a non-state organization that has declared war upon us. And because we do not consider this particular non-state organization to be a polity like a state --consisting of its citizens yet existing in law also independently of them (similar to the way a corporation is a person in the law, separate from its individual shareholders who are not (usually)individually liable for corporate crime), we hold each individual fighter accountable not just for his conduct in the fighting, but for the decision of the entity itself to go to war against us.

Thus, in this model, a terrorist can never be a combatant -- he can never have the combatant's privilege, because he is individually liable, unlike the true combabtant, for the decision of his entity to go to war. He can never fight with honor, as do true combatants, because he can never be separated from the unawful decision to even make war in the first place. So "unlawful combatant" is an oxymoron. It implies a jus in bello status and accountablility for a jus ad bellum action.And by creating this oxymoronic category of "unlawful combatant" we claim the privilege to kill him -- deny him a right to life -- while denying him a reciprocal combatant's privilege as against our own state combatants.

This is expedient, but is it honorable? And what does it say for maintaining limits on the conduct of war so that it doesn't escalate beyond all human control, to something that we never desired or anticipated (as Thucydides describes of the Peloponnesian wars, or as Lincoln comments on the American Civil War: "Neither party expected for the war, the magnitude or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself would cease. Each looked for an easier triumph, and a result less fundamental and astounding . . .The prayers of both could not be answered: that of neither has been answered fully. The Almighty has His own purposes" Or as Clausewitz put it: " . . .war, untrammeled by any conventional restraints, has broken loose in all its elemental fury.")

My own suggestion is that we ought to look at the counter piracy efforts of the 17th and early 18th century as a model for how to bring the force of war and a global effort against a dishonorable, non-state enemy. This is a model based in law enforcement, producing trial and punishment, using warships and honorable combatants to enforce the law . . . yet never for a moment conflating the enemy with a state . . .

Lee Feinstein joins Clinton campaign

Lee Feinstein, who for the past five years has been at the Council on Foreign Relations and where he has done splendid work on such issues as the responsibility to protect and Darfur, has announced that he is leaving CFR to take up a position with the Hillary Clinton campaign as director for foreign policy and national security. (Lee had been with the Clinton administration in several senior foreign policy positions.)

My congratulations to Lee - who is a friend and someone I enormously respect and admire - and even more my congratulations to the Clinton campaign, for having the good judgment and sense to bring on someone as terrific as Lee.

Look - the fact is, I am, even now, a Bush administration supporter and, although nominally independent, will almost certainly support a Republican in the next election. But it is a very great comfort to me - and should be to Republicans overall - that the Clinton campaign would choose someone like Lee Feinstein for so crucial a position. And that, if Clinton wins, he will be likely to occupy a high post.

There are many policy issues on which we don't agree, and even some basic premises about foreign policy on which we differ. But Lee is someone of great personal integrity, sound and mature practical judgment, and he occupies that broad center, whether Republican or Democrat, that this country ultimately depends on over the long term, whether it swings center right or center left. It shows great maturity on the part of the Clinton campaign to bring on board a Lee Feinstein, and in a country in which alternation of power between parties is a long term good thing, Lee is a Democrat, yes, committed to his party and his candidate, yes, but also part of the Vital Center that the United States, like every mature democracy, depends upon in the long haul.

This is outstanding news.

Steyn on the disappearance of 'Alms for Jihad'

Creeping one way multiculturalism is so normal today that one hardly notices. But Cambridge University Press's ignoble decision to pulp Alms for Jihad and take the extraordinary step of asking libraries around the world to remove it from their shelves, without so much as an effort to defend against libel charges threatened by someone who, on pretty good evidence, is a solid part of the wealthy Saudi funders of jihad and virulent Islamism around the world - well, that is important.

One thing CUP's unseemly-eager surrender especially signals is the direction that this kind of one way multiculturalism takes Britain. An ever more illiberal Britain, gradually shutting down its own liberal institutions through the manipulation by illiberals of the very mechanisms of its liberalism - yet loudly announcing how liberal it is and, as supposed evidence of that liberalism, pointing to the use of its liberal institutions to stifle dissent from its multiculturalism. Remarkable. It really is one's social and cultural constitution-as-suicide pact.

Yet, to be fair to Cambridge University Press, English libel law makes it nearly impossible to fight off a determined billionaire. Each defendent can be picked off separately. On the other hand, there is no evidence that Cambridge UP would have fought back in any case.

Mark Steyn (the full article is worth reading because it gives essential background to the story of jihadist funding.) Here.

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from:

Mark Steyn
Orange County Register
August 5, 2007

The Vanishing Jihad Exposes

... So why would the Cambridge University Press, one of the most respected publishers on the planet, absolve Khalid bin Mahfouz, his family, his businesses and his charities to a degree that neither (to pluck at random) the U.S., French, Albanian, Swiss and Pakistani governments would be prepared to do?

Because English libel law overwhelmingly favors the plaintiff. And like many other big-shot Saudis, Sheikh Mahfouz has become very adept at using foreign courts to silence American authors – in effect, using distant jurisdictions to nullify the First Amendment. He may be a wronged man, but his use of what the British call "libel chill" is designed not to vindicate his good name but to shut down the discussion, which is why Cambridge University Press made no serious attempt to mount a defense. He's one of the richest men on the planet, and they're an academic publisher with very small profit margins. But, even if you've got a bestseller, your pockets are unlikely to be deep enough: "House Of Saud, House Of Bush" did boffo biz with the anti-Bush crowd in America, but there's no British edition – because Sheikh Mahfouz had indicated he was prepared to spend what it takes to challenge it in court, and Random House decided it wasn't worth it.

We've gotten used to one-way multiculturalism: The world accepts that you can't open an Episcopal or Congregational church in Jeddah or Riyadh, but every week the Saudis can open radical mosques and madrassahs and pro-Saudi think-tanks in London and Toronto and Dearborn, Mich., and Falls Church, Va. And their global reach extends a little further day by day, inch by inch, in the lengthening shadows, as the lights go out one by one around the world.
Suppose you've got a manuscript about the Saudis. Where are you going to shop it? Think Cambridge University Press will be publishing anything anytime soon?

What would Bart do? And the Baroque violin music of Nicola Matteis

The Baroque violin music of Nicola Matteis (b Naples ?, d London? 1714? Although not much is known about his birth and death, don't feel too badly for him - he came from Italy, married a rich widow in London and retired wealthy from the music scene, which is why not so much is known) is mostly virtuosic and pretty, rather than deep and beautiful. Ornamental and diverting, not profound. On the other hand, the second movement of the suite in A major, Book IV, Nos. 1-11, the 2 minute long Andamento con divisione is so sweet without being overwhelming that it just stops me on the album until I've played it three or four times in a row. There's something about the ostinato in three - very hard to explain except that I can play it over and over. (The Arcadian Academy, on Harmonia Mundi, here.)

Meanwhile, I am sitting here on a Saturday morning deep in the midst of writing my TLS review essay of ... the Simpsons Movie. Knowing that I will be launching something that, although unlikely to encounter too many fanatics among the readers of the TLS, nonetheless will be likely scrutinized at some point by some hard core fan, so I have been online making sure the details are right.

My review is filled with plot spoilers, I'm afraid. Worse, I am committing the (venal) sin of doing a serious review of a fun and funny summer movie, a cartoon no less. I am pairing it with a review of my colleague Angela J. Davis's new, brilliant book on the overwheening power of prosecutors in America, Arbitrary Justice (Oxford UP 2007). I should have included this in my reading post, earlier, but didn't because I knew I'd be reviewing the book - this book is must-reading for anyone trying to understand what has gone so dreadfully wrong with street-level American justice. As regular readers of this blog know, as some sort of libertarian conservative, I am willing to defend many institutions and policies in America that progressives find indefensible - the war on terror, the war in Iraq, not infrequently the Bush administration - but the American criminal justice system is not one of them, and that fundamentally for the reasons Professor Davis says.

Combining the Simpsons and Professor Davis might turn out to be a bad idea, from the craft of review writing point of view - downmarketing Professor Davis's intellectual and legal policy tour de force while making the Simpson out to be more than it is. But while watching and laughing my way through the movie, I kept being struck by the thought: that T-shirt I used to see in the 90s, "What Would Bart Do?" (checking Google, I see you could get the slogan on a thong, too) today should be replaced with "What Would They Do To Bart?"

The latter not as cute and catchy as the former, granted. But in today's world of apparently unconstrained prosecutorial power, possibly more relevant. Godalmighty, what do you say about someone sentenced ten years for consensual oral sex with a fifteen year when he was seventeen and in high school in Georgia - finally, finally overturned by a judge after pretty much every other appeal had been exhausted - except that he was pursued by a crazed and unaccountable prosecutor? And then the butt swatting thirteen year old middle schoolers pursued by a mad, unaccountable, self-righteous prosecutor in Oregon on felony sexual assault charges designed to put the boys, as he said in interviews, on the sexual offenders register for child molesters and pedophiles for the rest of their lives. Life imitates a Simpsons cartoon - without necessarily the happy cartoon endings.

Armed robot photo

Borrowing from the Danger Room article, here is a photo of a SWORDS with machine gun atop. You can watch a YouTube video of it, here: http://www.youtube.com/watch?v=e26Gnc3E0yg.

Armed robots deployed in Iraq

(Welcome, Instapunditeers, and thanks Glenn for the link!)

I blogged earlier, here, about important efforts to conceptualize the ethics of robot soldiers. For the first time, armed recon robots have been deployed in a warzone - Iraq. HT thanks Instapundit; from Danger Room/Wired Blogs, here.

This is not really about the topic of my ethics of robot soldiers post. That post was about machines with the capability to act independently, independent of human control, and it pointed to very important discussions trying to anticipate how and what the ethical decision making of such independent robots should be. The machines being deployed now to Iraq are not that, and are a long, long way from that - the Iraq deployed machines are a new version of the already widely deployed SWORDS reconnaisance robot vehicle - new because the new machines have a weapon, a machine gun, added to it. They are remote controlled in real time by humans, not machines making programmed decisions about weapons use. (Also, if you are thinking of robots in the I, Robot mode - well, these are more like mobile sleds with a machine gun on top - they don't anthropomorphize.) The ethical and legal questions raised are not about independent machine decisionmaking and action, but instead about the use of a human controlled and operated but remote platform. Still, this is a step closer to what seems to me not just a natural, but an inevitable step forward in warfare for the world's most highly technological army.

Robots as a response to asymmetric, law of war violating warfare:

It is important to understand that the inevitable move toward robots on the battlefield is not merely driven, as in past times, past conflicts and wars, by material considerations of conservation of personnel, force to space ratios, and so on. It is driven as much or more today by moral, legal, and ideological considerations - part of an effort to limit the exposure of one's soldiers when dealing with enemies who will not follow the laws of war with respect to our soldiers. Part of that is obviously the attempt to not get your soldiers killed - but another important of it is to avoid having your soldiers captured by an enemy that does not pay attention to the laws of war except when, by loudly appealing to it, it can benefit from it.

The US, for good moral reasons, has given up the possibility of reprisals against civilians or other people hors de combat, such as captured enemy fighters. It has also shown itself unwilling, for not such good reasons, however, to enforce certain important remaining laws of war with regards to abuses by the enemy (such as the US refusing, in its internal rules of engagement, to fire on a mosque being used as an enemy emplacement, despite being allowed to do so under the laws of war). The US therefore finds that it has few or no behavioral levers with respect to the behavior of an enemy fighting using illegal methods. In such a case, one response is the attempt to compensate through technology - by limiting the exposure of one's soldiers in particular to death, injury, or capture and replacing them with machines.

Will robot soldiers eventually lead to a more "policing" attitude on the battlefield? Might roboticized war be a factor leading, perhaps inadvertently, to fewer decisive engagements and more protracted warfare?

One question we might have is what happens over time if fewer American soldiers were to appear at all on asymmetric battlefields, and when they did and fell into hostile hands, we gradually came to assume, on the basis of experience, that they would be held hostage under terms hardly meeting the Geneva Conventions or else beheaded on internet video. It is unlikely that we would respond by war without quarter of our own. On the contrary, part of our technological drive to create and deploy remote fighting machines is in order to get away from having to enforce a barbarous reciprocity that has always been thought otherwise necessary (the ICRC and HRW and the ICC and all the rest of the modern day "heralds" of war notwithstanding) in order to deter such actions by the other side and so ensure adherence to the laws of war.

We might conceivably move, in such circumstances, to treat those we captured more as criminal detainees than as something closer to POWs - and to reconceptualize, over the long term, the general categories of detainees in asymmetric. We would after all not incline to treat them like POWs because we would have already long since determined that their behavior was that of an unprivileged belligerent. The category of actual legal POW might even conceivably wither (away?) from disuse. We would assume our people would be abused and/or killed, or else held as hostages or for ransom - much as Israel's soldiers held by Hizbollah, for example. It wouldn't make sense to us to treat unprivileged belligerents as POWs, especially given that our people - who would indeed be entitled to such treatment - would not be so treated. I would guess that we would evolve to treat them as some form of quasi-criminal detainee - I say 'quasi' because we would not be be able typically to prove criminality except on the basis of participation in an armed enterprise that as an enterprise systematically violated the laws of war, and often not on an individual basis. And 'quasi' also because it would likely have important elements of administrative preventive detention. Of course, we face exactly such issues now, but we have not really resolved them; the widespread deployment of armed robots on the battlefield, however, might constitute one pressure in that direction.

Curiously, however, it wouldn't surprise me, on the current evolution of things, if "battle" turned gradually into some form of particularly violent and contested attempt at "arrest" after a demand for surrender. Warmaking might evolve, at least in the asymmetric urban setting, to battle as a form of "policing." As soldiers were less physically present on the actual battlefield, and if you had armed machines dominating the battlefield, manned remotely, at least on one side, might there be greater pressure on your military to call for the fighters on the other side to surrender, for example - issuing a call to surrender, rather than simply attacking or undertaking ambush or surprise? Whether that would facilitate winning a conflict, as opposed to merely managing it over the long term is not clear. It might inadvertently create conditions for systematically less decisive engagements - tactical engagements with possibly less collateral damage, but also no victory - which is, of course, the definition of victory for guerrillas in a guerrilla struggle, never win, but also never lose and finally just outlast the enemy. Whether we would care, if such long-term "managed," never-decisive warfare cost us in treasure, but not especially in blood, is also not clear.

Can robot technology overcome behavioral shifts toward illegal warfare by irregular forces?

The development of remote and robot technologies is driven by a parallel consideration that also arises from moral, legal, and ideological consideration. It is the attempt to create machines that will follow determinate legal rules of engagement, particularly with respect to the combatant-noncombatant distinction - in consideration of an enemy, however, that deliberately violates that distinction in its own combat operations. Again, the effort is to find a way to overcome the inability through our battlefield behavior (such as the reprisals we deliberately and properly don't take) to affect deliberately planned, illegal enemy behavior - through a technological fix.

The move to robots is all but inevitable and, in fact, particularly but not just under these circumstances, desirable. I have my doubts, however, that any technological fix can permanently compensate for behavior on the other side. If the nature of arms races is competitive - either a "counter" or a "defensive" move to respond to changes in the conduct of war - then we are in a peculiar historical moment in which one side attempts to respond with equipment changes to changes in behavior on the other side. Is it possible for technological ingenuity to beat out determined and evolving bad behavior? I don't know.

Legal liability and robots on the battlefield:

Those deploying armed robots to Iraq for use in the field, remotely controlled, had probably better be prepared for a much greater willingness on the part of the outside monitors, the human rights organizations, outside critics, etc., to charge illegality, criminal behavior, war crimes, violations of the law of war, etc., in any collateral damage created by these weapons than currently exists - with charges and accusations against operators as well as commanders. And against the companies that design and build and sell such weapons.

Why more than in the case of soldiers present on the battlefield? Well, it doesn't necessarily make much sense - the rules of engagement, after all, are presumably exactly the same - but I would bet with pretty high confidence that the deep and not necessarily articulated premise will be that you are more liable for damage caused if you caused it remotely and were not yourself at risk, not being present on the battlefield, operating the robot remotely.

The idea that you yourself are in some fashion at risk - even if not very much, as in the case of a standoff aircraft or tank or what have you - on the battlefield, hence giving some compensatory justification to your collateral damage, makes a difference, or anyway will likely make a difference, I would bet, in how these weapons are seen by outside critics. It will seem weird to the military - it will seem to it as very close to claiming that remote operators have an "unfair" advantage and hence are entitled to no otherwise legal collateral damage - and it will not, to the military, seem any different from any other standoff platform such as aircraft or remote artillery. Why should it be?

But I would be willing to bet that it will seem quite different to outside monitors and critics. The two core criticisms will be: (a) you are not putting yourself at risk and hence are not entitled to collateral damage because, notwithstanding that the criterion of collateral damage is "military necessity," not "did I risk myself?" it will somehow seem "unfair" - despite the fact that you are battling an enemy for whom asymmetric warfare via violations of the laws of war is de rigeuer.

And (b), the fact that you risk only a robot but risk causing collateral risk in human life means that you should not do anything that risks collateral damage at all. Civilians and even civilian objects, in the lingo of Protocol I, trump any kind of claimed military necessity. This is especially so, it will likely be said, under the ICRC's interpretation of the language of Protocol I referring very narrowly to "concrete military advantage" in the immediate circumstances as the measure of military necessity. That the US has never accepted Protocol I as a treaty and has never accepted that particular interpretation of the customary law rule regarding military necessity - and that many other countries offered reservations and interpretations on that very point when they did join Protocol I is not likely to be seen by the critics as of any account.

If your definition is military advantage is sufficiently narrow, in other words, then no collateral damage is justifiable if all you risk is some equipment, not lives, on the battlefield - if your definition of military advantage is so narrow and immediate that it cannot include the necessity of winning this battle, or any particular battle, as part of a larger plan to win a war.

As I say, this will possibly seem puzzling and quite wrong to the military itself, which operates all kinds of remote platforms for launching weapons - and as armies have done, at least since the advent of the long range bow, the catapult, and artillery. But I would urge it to prepare for precisely such criticisms. I would guess this is how the public argument will go, and it might even culminate in someone or some organization calling for indictments against US soldiers for civilian deaths resulting from the use of remotely controlled robots in combat. Or civil law suits via the Alien Tort Statute against the companies creating this equipment.

Yet this would be disastrous if it led to the curtailment of these weapons, their development and deplyment - disastrous from the standpoint of the long term integrity of the laws of war in a period in which asymmetric warfare is tending to undermine their very foundations, because reciprocity has been largely lost - and disastrous to the effort to find ways through technology of combating an enemy that does not fight by the rules. Unfortunately, that has never been a concern of those who propose to make the rules of war, but do not have anything at stake in actually having to fight using them.

(Note on the first two comments. I emphatically do not think that the JAG and those formulating the US position on the laws of war would take the view that I have here attributed as being likely to come from outside critics in the human rights or perhaps academic communities. Or from countries that, not having any pressing wars to fight, are overly willing to opine on the content of laws in which they have no stake in the outcome. On the contrary, I think that the JAG and the US military laws of war lawyers would see this more or less as I suggest above: that these armed battlefield robots are remote platforms like any other, and that in any case military necessity is, at the end of the day, about winning wars. Military necessity does not justify anything and everything, of course, and it rules out many, many things; but it does not mean that a military has any obligation to risk itself or its personnel as a condition of being able to risk otherwise legal collateral damage. But I would be interested in comments from JAG, from current or past serving laws of war lawyers, and others interested in commenting.)

(Update, 9 August 2007, check out this link HT Instapundit from Popular Mechanics. Here.)

Marianne Faithfull's Broken English (1979) dedicated to ...

Ulrike Meinhof, of the 1970s German terrorist Red Army Faction and Baader-Meinhof Gang? That's what the Wikipedia article on Faithfull says, here. (The Wikipedia entry on Broken English simply says "inspired by.") It is a great album, even so. I happen to prefer the later album, Strange Weather, but there's no getting around the edgy power of Broken English. I've also listened to Faithfull's interpretations of Brecht and Weill, and she is really quite outstanding - a real understanding of the material.

Might success in Iraq benefit the Democrats?

Byron York lays out succinctly the dilemma facing the Democrats as the party-in-opposition (to the executive, at least) in the midst of a war. Here at The Hill:

The Iraq debate that we’ve been watching this year has been about two bets.

After false starts and misplaced hopes in 2004, and 2005, and 2006, George W. Bush is betting his surge strategy will facilitate the political progress that could bring a semblance of stability to Iraq.Senate Majority Leader Harry Reid (D-Nev.) and House Speaker Nancy Pelosi (D-Calif.) are betting the surge will fail. It’s as simple as that. If Bush wins his bet, Iraq will be a better place, the Middle East will be a better place, and America will be a safer place.

But Reid and Pelosi lose if Bush wins. Given the position they have staked out for themselves, the best possible outcome is for Gen. David Petraeus to give a downbeat report on the surge when he comes before Congress in September. That would give tremendous momentum to those who want the quickest possible U.S. withdrawal from Iraq. It’s the dilemma of being in the opposition in wartime. By betting so much of their political capital on the issue, Reid and Pelosi have become invested in U.S. failure. A U.S. success would throw a wrench in their plans.

York goes on to say Democrats might have avoided this unfortunate position had they waited to give the surge a chance to show itself for better or worse. And there's this much-noticed Washington Post report of Democrats in Congress worried that we might indeed be winning militarily, here. I have a different question, though.

Democrats have, of course, treated the Iraq war as a replay of Vietnam. Because of their political DNA, perhaps, a congenital inability to comprehend things any other way or see it through any other lens. In that narrative, the role of the opposition is to get the US out by any and all means. And, having got the US out, a grateful electorate will presumably give them its support.

But is this necessarily how it works? Consider the quite stunning reversal of fortune of Churchill and the Tories the very moment WWII ended. An apparently altogether ungrateful electorate promptly turned them out of office, in favor of an agenda of constructing something between the welfare state and straight-out socialism. It wasn't sustainable over the long haul, although it took until 1979 to become overwhelmingly clear. And at the time, the experience of the electorate in the shared sacrifices of total war had taught it something deeply felt - that the sacrifices of war should result in a better peace, including within the nation. The Tories were believed adequate to winning the war, but Labour was better suited to building the peace. Voters were quite unsentimental about it.

What would be the result of, however improbably, a Republican led victory in Iraq, and let's throw in for good measure, the crippling of Al Qaeda in Afghanistan and Iraq, the death of Bin Laden and his chief aides, the crippling of the Taliban and stability of some sort in Afghanistan, and measurable progress in things like port security, surveillance, and intelligence gathering? It's a thought-experiment - give it some room, thank you very much. Efforts supported, not torn down, by Democrats? What would happen, that is, if the American public came round to feel that its security had been greatly enhanced and that America had largely won its wars? Would it thereby commit long term to the Republicans?

Or would the American public instead - particularly if Democrats could plausibly claim to have been part of the coalition of security success rather than invested in failure - decide that now was the moment to turn away from security and turn to issues on which it might plausibly trust the Democrats more? (This is assuming that the electorate would, over the long term, trust the Democrats more on taxes, social security and retirement, the environment, health care, etc. - it's a thought-experiment, give it some room, thank you very much.) Does anyone think that the American electorate is more sentimental than post-war Britain's?

One might argue, in other words, that the best strategy for Democrats is not to seek to replay Vietnam, but instead to back the Bush administration and work together with the Republicans in favor of a security strategy, including, whether one likes it or not, the war in Iraq, in order to win it on some modest measure of success-as-stability. That might well be the best way for Democrats to neutralize Republicans on the Republican security advantage. It does not mean foregoing the opportunity to say, "This wasn't my idea," or to say, "We told you so," or even to hold out the possiblity that at some point, the war really is lost, even on General Petraeus's criteria.

But it does mean not announcing that the security threat was never real or serious, or that it was merely the Republican boy crying wolf, and that the security risks can be defined away by fiat. And it does mean acknowledging that once in a war, it is better to succeed than to fail, for the country as a whole. And it does mean joining with them, share any success that can be snatched at this late date, and depend upon the fact that the American public has very little patience with past performance and asks automatically, "Yeah, but what have you done for me lately?"

Democratic electoral success in the future thus might be better sustained by the American public visibly seeing not only that Democrats take security seriously, and take it seriously not merely by denying that, yes, Virginia, there are external threats in the world - but even more by success in seeing off those threats. A less threatening world might well electorally favor the Democrats and the issues on which they might better play to the electorate than national security. Ask Churchill, circa 1948.

(Okay, okay, it's a thought experiment, nothing more.)

What I'm reading, an irregular series ...

As you can tell, I am dodging work for a couple of hours this afternoon and idly posting ... I have my UN manuscript to complete (it is very far along, I'm delighted to say, although less sure about its readability), and a Simpsons Movie review for the TLS to complete. In theory, writing the Simpsons review should be a break from the harder work of writing the UN manuscript, but unfortunately, as my Simpsons review has - gulp, ultimate sin of a review of a summer comedy - got somewhat serious, it has got harder to finish. But here's what I am reading these days:

The Matador's Cape: America's Reckless Response to Terror, by Stephen Holmes. I finished this a few days ago, then read Peter Berkowitz's review in Policy Review, here, "Vulgarizing the War Debate."

If anything, I think Peter is too nice about this book. In an earlier post on this blog, I remarked on my experience over the last year and a half of being a panelist at academic conferences in which the principal and largely unchallenged assumption was that terrorism was not really the issue, an overblown American response was; terrorism, according to one academic panelist, in a phrase I have made my own (by way of dispute, however), is merely a "second order" problem. Marty Lederman, in a comment on that post, said that he hangs out with a lot of critics of the administration but has never heard such sentiments. Well, perhaps we mean different things by such labels - but a couple of further commentators to that post weighed in with several examples of "terrorism is a second order problem" thinking. One is the recent (late 2006) Foreign Affairs article by political scientist John Mueller,"Is there still a terrorist threat?" and answering no. Indeed, answering that there never really was one as such, it was all overblown and mostly imagined.

To this canon we must add Professor Holmes' Matador's Cape. Let me be honest, I've never been a fan of Holmes's work - yes, of course, leading political theorist, all that, but the hatchet job he did in his 1993 The Anatomy of Anti-Liberalism on thinkers ranging from Christopher Lasch to Roberto Unger was so egregious that I've never been able to take him seriously again. All wit, all the time; serious, accurate readings of his targets, something else again.

(It was also Peter Berkowitz, by the way, who most precisely and comprehensively revealed the level of selective quotation, contrived misreadings of key texts, etc., that made up the 1993 book, here - something that I don't suppose improved Peter's tenure prospects in Harvard's government department - although Peter liked somewhat more Holmes' later Passions and Constraints (1995), here. However, the one who had the most reason to be angered by the misreadings was, for my money, Unger who, however, has long tended to take such attacks in stride.)

My objections to the Matador book are essentially a somewhat more indignant version of Peter's. Holmes switches arguments as it suits him, depending on the target, with little attention to the intellectual inconsistencies - and worse, inconsistencies implied for actual policy - and an insouciant attitude that the real issue is not out there, it is in here; the issue is not terrorism, it is (the excesses of, the inherent illiberalism of) counterterrorism.

Capital Ideas Evolving, by Peter L. Bernstein. A decade ago I reviewed Bernstein's superb Against the Gods: The story of risk in the TLS, here. But Bernstein, that rare combination of a scholar-writer-practical investment banker (the one other outstanding example I can think of is James MacDonald, author of the wonderful A Free Nation Deep in Debt: The Financial Roots of Democracy), had actually begun his writing on finance theory and history with a 1970s book on the new financial theories entering the capital markets - the theories of efficient markets, options pricing models, etc. This new book offers a new perspective on those theories and their successors, both as an intellectual matter and a practical matter in the markets. I have just started it, and am greatly enjoying it. Students - but not just students, by any means - I think, would get a great deal from this book. One of my criticisms of how economics is taught is not just its widely commented abstraction - the number of law students I teach who have had multiple classes in undergraduate economics where they drew many supply-demand curves but have not the faintest idea what any of it means in the real world, well, they are legion - but also its determined ahistoricism. To conceive of economics as having a genuine intellectual history is, apparently, to deprive it of claims to Truth and Science (analytic philosophy long had precisely such an attitude toward intellectual history). More when ... I have actually read the book.

Model Behavior, by Jay McInerney. A well known and justly very well regarded international law professor - which is to say, a serious intellectual who is the real deal, even when, as is frequently the case, we disagree - dropped me a note to say that he had read a book I had commented on earlier, AA Gill's Starcrossed, and rather enjoyed it. Hooray! But I'll let him remain nameless because my wife started into the book, and told me that I could talk all I wanted about Gill's take on Antigone and his infectious enthusiasm for poetry, about the book's wry insight into the nature of celebrity, fame, and money - at the end of the day this book was just another in the genre of male fantasy novels about models-actresses who take up relationships with men for whom in real life one can't possibly imagine it happening. Chick lit for guys, I think she put it. Well. Errr. Hmm. Surely not. Couldn't possibly be.

There being no good response to that, at least by a middle aged academic who can't afford a midlife crisis, let me instead offer another in the "chick lit for guys" category - Model Behavior by that now-out-of-fashion bad boy of lit, Jay McInerney. I found it by complete accident - our home bookshelves are crowded with books that somehow arrived, wound up there, drifted in with the spring pollen, somehow took up residence, even though I've never read or even noticed them. This was one of them - I noticed it while we were eating picnic style in front of a video a couple of weeks ago. I had no idea what it was. It's okay but not great; I read it all the way through mostly to find out if "they" got back together. And when that's the reason you're reading a novel - what did Jean-Marie call it? Chick lit for guys? Never.

Airplane reading on the long flights to and from Chile: Douglas Preston and Lincoln Child, The Book of the Dead, being the latest in the Special Agent Pendergrast series, and Lee Child, Bad Luck and Trouble, being the latest Jack Reacher novel. There are others, but I'll only embarrass myself further.

(There are two authors who require separate, serious discussions. One is Tod Lindberg and his new The Political Teachings of Jesus, and the other is Francisco Goldman, his new nonfiction account of the murder of Bishop Gerardi in Guatemala, The Art of Political Murder: Who Killed the Bishop?, but also his whole fiction canon. They are both old and dear friends.)