Logic and learning to write an expository argument

My fourteen year old daughter is, as befits a DC child (I suppose), interested in politics. At the dinner table the other night, we were talking about some issue or other, and I asked what her view was and why. I was surprised to find that rather than formulate an argument and a position, she talked about metaphors.

I was surprised, because, unless you thought of a metaphor as something like an argument from analogy, metaphor was not really a way of forming an argument toward a conclusion. So we started talking about different kinds of issues, and I was increasingly perplexed to realize that she automatically reached for categories of analysis that she had learned in her English classes appropriate to analyzing literature - metaphor, mostly - as the categories of argumentation.

I have been thinking about that ever since, going over her curriculum up through the 8th grade a bit, and have realized that nowhere in her school curriculum does anyone teach, in any subject, the basics of logical argument. This is true of her school, National Cathedral School for Girls, but it is equally true of the school she will attend next year, Sidwell Friends, and I am pretty certain this is true of all the public and private schools around.

Consider the forms of analytics found in her different classes:

In English, they learn the figures of literature, metaphor, simile, and so on. The effect, at least through high school, is that they do not learn to form an argument to a conclusion - instead, they learn to identify devices in literature - a wholly different enterprise, and one which depends for its subject not so much on argumentation as the ability to apperceive a usage. (Leave aside the fact that they have done very little actual writing over the course of the last two years at her school.) The idealized subject matter itself is about the analysis of novels and poetry and the occasional Shakespeare play.

Strikingly, too - I draw on a very interesting Althouse post - they read in these classes no nonfiction, no essays or nonfiction prose - and that seems to continue all the way through high school. This is a curious omission - because, so far as I know, learning to write is partly the imitation of a "voice" - and the discovery of one's own voice - and, for me at least, and everyone else I know of who writes, the discovery of that voice comes from reading nonfiction and identifying with a certain voice. I have a pretty good sense of who those voices were in my adolescence - essays by Albert Camus, the marvelous Aldous Huxley preface to the second edition of Brave New World, Orwell. I could hear their voices in my head. I don't think that would have happened had I limited my reading to fiction, poetry and plays. In other classes, the nonfiction, such as it is, consists of textbooks written by curriculum committees having in mind the requirements of the states of Texas and California - there is a voice(s), but not one to imitate.

In history and social sciences - my daughter has just completed a genuinely marvelous American government class that would have taxed many college students. I mean, a spectacular class with a spectacular teacher. Tell me another 8th grade class in the country that could give a paragraph explaining Youngstown along with 30 or so other major Supreme Court cases? Nonetheless, despite an admirable emphasis on original documents, starting with the Constitution, the class did not teach the basics of logical argumentation - premises to conclusions. It sort of took it for granted, and went ahead with college level substance and material.

Science at my kid's school was, again, excellent, an inspiring teacher and fabulous curriculum in earth sciences. It taught a certain form of argument, but all of it was what you would expect and want in a physical sciences class - argument in the inductive scientific sense, the formation and testing of hypotheses. Great stuff, essential stuff - my kid knows the difference between a dependent and independent variable. But the form and circumstances of argument are all scientifically inductive - not deductive, premise to conclusion.

Math. Well, in one sense it is teaching deductive argumentation, particularly in geometry - but in a form so specialized and so technique oriented that it doesn't travel to other subjects. In any case, even geometry has moved away from formal proof to techniques that - very sensibly - start to provide the basis for calculus.

The result is that my daughter does not have a clue how to do something that is basic and essential to intellectual work in every field - offer a proposed conclusion and derive it from premises. It is crucial to reading any serious nonfiction work in pretty much any field - and yet is not something learned by reading stories with an eye out for the identification of literary tropes. And deductive logic, too, is critical to much of economics.

Long and short of this is, I have convinced my (more or less willing) kid to take some lessons in logic this summer. There doesn't seem to be a class at the local universities, but I've found one of the math teachers willing to do it - not a lot of sessions, but enough to get started on both basic Aristotlean logic, verbal logic of syllogism and fallacies, on the one hand, and very, very basic symbolic logic aimed finally at computer languages on other, and having a clue as to why term logic is finally inadequate.

The problem is finding a book that is basic and slow enough for a kid who is verbally gifted, does okay with math but has to approach it very systematically - I am thinking about the old Kalish & Montague, second edition that has more problem sets and more explanation of the problem sets. It seems to move more slowly than the coomputer science oriented texts. Any suggestions welcome. In the course ten or twelve sessions, I'd be happy if my daughter learned the verbal basics of premises, conclusions, validity, truth, soundness, etc., and how to look for and identify them in a written text, and the very basics of the idea of symbolization - not, and, or, if, if and only if. Not even get to truth tables.

(Update: Kalish and Montague just arrived, and it seems like a good place to begin. The preface says that it is about teaching a skill, and is not aimed at presenting the fundamental debates underlying logical systems. And it moves more slowly than the more current texts. However, for a junior high schooler, it still moves too fast - I think the tutor can work with it, but needs to come up with a lot of extra problem sets - and realistically, just getting through verbal, natural language fallacies, syllogism, and then symbolization in chapters 1 and 2 is still too much.)

Put another way, the school curriculum seems as though students were equipped for argument with Aristotle's poetics - but not with his logic. Certainly he would have been surprised.

Steve Vladeck joins the (my) WCL faculty - welcome Steve!

Now, I'm not saying that the dean and our faculty did a little victory dance when Steve Vladeck agreed to lateral over and join our faculty at Washington College of Law - but I'm not saying we all didn't, either.

We are really, really pleased Steve is joining us - he adds a great deal to our traditional strength in laws of war and human rights (Bob Goldman and Diane Orentlicher, et al.), our human rights clinic (Rick Wilson and Muneer Ahmad), our summer human rights academy (Diego Rodriguez and Claudia Martin), our programs with the Interamerican Court of Human Rights (Dean Claudio Grossman), our existing strengths in national security and military law (Dan Marcus and Gene Fidell, et al., and then federal courts people like Amanda Frost writing in national security related matters) - well, we have a lot going on in these areas. And I'm going to embarrass myself because I have named only a few of our faculty involved in these fields.

Although, as readers of this blog can tell - the happy few - I write a lot in these areas, I actually teach in the business and international business areas. I teach a seminar on just war theory, but generally my courses are international economic law, corporate finance, private equity. I also have a large interest in international development and development finance - eg microfinance - and a large interest in nonprofit and NGO law, domestically and internationally, the tax side but increasingly even more the non tax aspects such as corporate governance of nonprofits and the financial aspects (both raising money and disbursing it) by nonprofits. My current plan is to develop a mini program on nonprofit law here at WCL.

Call for papers on domestic role of US military for AALS conference

Call for Papers: Domestic Role of the Military

The AALS Section on National Security Law has issued a call for papers on the topic of the domestic role of the military (broadly understood), in connection with the January 2008 AALS annual meeting in New York.

The details are available here, at National Security Advisors blog:

http://natseclaw.typepad.com/natseclaw/2007/05/call_for_papers.html

Very important, very current topic.

International Law Reporter Blog

I've mentioned this before, but if you haven't had a chance to check out Jacob Katz Cogan's International Law Reporter blog, here, it is well worth it. It is great to have all the current international law stuff in one easy place. Thanks, Professor Cogan!

Best wishes on Memorial Day 2007

Best wishes on Memorial Day, and our thoughts and prayers to those who have lost loved ones in the military or whose loved ones have suffered injuries. We don't go anywhere on Memorial Day weekend - my wife and daughter are in the last week of school, with final exams and graduation, and it is an incredibly busy week around here.

Notes on how we do international law scholarship (post 0 of 4)

I've put up four continuous posts below that are all on the question of how we do international law scholarship, how it is evolving and changing and where it should go. These are purely working notes for a panel at the AALS/ASIL midyear meeting next month in Vancouver. I will be on a panel on this subject moderated by Jose Alvarez, president of the ASIL, and Ruth Gordon, Tom Ginsburg, and Richard Steinberg. My notes probably overemphasize two things at least - the location of shifting international law scholarship within broader shifts in the academy, and the sense of acrimony and friction as liberal internationalism has faced some challenges within the international law academy. I likely overstate those two. Plus there are important things I ignore - particularly the spillover of theorizing from international economic law, such as law and the WTO - and their effects on how we do academic international law. But, for what it's worth, these are my working notes for the Vancouver discussion. Very much first draft, and I will probably change my mind or at least degree of emphasis about various issues.

Methodological heterogeneity and the larger intellectual setting of international law scholarship (post 1 of 4)

Heterogeneity and the “two cultures.” (This first post won't have much to say about international law scholarship, I'm afraid. It seeks to locate shifts in international law scholarship against the larger intellectual backdrop of the academy and the legal academy, and so starts elsewhere than international law.)

Like many in the field of academic international law, I have been struck during the past decade by the increasing methodological, intellectual, and ideological heterogeneity that has begun to enter our field. Arguments from sovereignty, rationalism, neo-conservatism, empiricism, neo-marxist anti-globalization neo-imperialism counter-hegemony theory, rational choice, feminism, IR theory, from ... well, where did all this new stuff come from, and what is its influence in an academy hithertofor comfortably ensconced largely in a method of prescriptive moralizing as law (even if sometimes wrapped in plain-vanilla doctrinal lawyering) in support of an ideology of liberal internationalism?

At the same time, however – and again like many others in the field – I am struck by the fact that this heterogeneity is actually late in coming to international law. Waves of new methodologies, intellectual orientations, and ideological diversity have come to many other fields of law long before now, decisively reshaping those fields decades ago, and long before they have barely begun to seep into international law scholarship. That conjoined observation – the arrival of heterogeneity, but late, comparatively – asks for its own explanation.

It is possible to overstate the heterogeneity, and I am sure I sometimes do, as someone fundamentally interested in seeing the field open up. For one thing, the intellectual diversification of the field of international law is almost entirely a phenomenon of the American international legal academy. I, at least, see little evidence of it elsewhere, in Europe, or in the rest of the world. There are complex reasons for that divide, I would guess – a much greater methodological commitment, for example, abroad and in Europe to international law in a positive law framework (particularly the methodological sense among many that positive law is a “scientific” approach to law, rather than something that requires external, particularly social science explanations); a fervent if sometimes intangible belief in Europe that the experience of the EU bears lessons for the world as a whole; fewer scholars outside the US entering the field with the new gold-standard qualifications of economics and social science; and a greater ideological commitment to liberal internationalism for which positive law approaches can have the tendency methodologically to assume the ideological conclusion.

Part of the answer to the “lateness” question is likely the fact that the field is not dominated by Americans, and hence is much slower to respond to intellectual movements within the United States legal academy. That includes a certain resistance from Europeans and others outside the United States, who see, among other things, the tendency (I am cribbing from Jose Alvarez) of American scholars to see international law as policy as a way of shortchanging its positive law obligations. On the other hand, seen from the perpsective of the rest of the American legal academy, academic international law in the overall American legal academy appears as a sort of “soft target” for scholars who have honed a method – law and economics, rational choice, etc. – elsewhere in law and who, in international law scholarship, see an unplowed field. Would not Eric Posner, who is a fine and plain-spoken fellow, likely agree? To which the response is, well, to a hammer everything looks like a nail. And then the replies and counter-replies: but it is in any case a very American argument.

These movements in United States international law scholarship also partake of much larger intellectual movements, in law as well as the still larger academy. I mention them only in passing because they raise matters too large deeply to consider – yet it is important to keep them in mind, even if they do not appear directly to bear on international legal scholarship.

C.P. Snow famously wrote, now fifty years ago, of the development of the “two cultures” of science and the humanities, and their tendency to become ships passing in the night. There is some reason to think that today we are seeing a repeat version of that. Only it is not the divide between the sciences – the physical sciences and technology – and the humanities that yawns increasingly today, but instead the divide between the social sciences and the humanities. For many and complicated reasons, the center of gravity over facts and facticity, knowledge and even truth, has shifted from the humanities – in part because of the post-modern retreat of so much of it from claims of universalism – to social science, led by the upsurge in the prestige of economics. (Part of the upsurge in the prestige of economics as a deliverer of "truth," to be sure, lies in the pragmatist shift in how truth is understood, to become something closer to a pragmatist view of truth as "facts," in a "local" sense - but moving along, though this point is far from unrelated to legal scholarship today. Post-modernism in the humanities, for its part, might, I suppose, be right – but right or not, the effect of its method has been the systematic sawing off of the branch that the humanities sits upon insofar as these fields claim to be revelatory of broad truths about human beings, as Zygmunt Bauman once put it.) Nature and intellectuals, however, abhor a vacuum. The social sciences have moved to fill that gap – even if, to be sure, the things which are measurable by the methods of the social sciences, through surveys, public health statistics, etc., are not necessarily the things we would want to measure in order to understand what used to be known as the human condition.

Why raise something so large and speculative and unapparently unrelated here? Well, to the extent this is true, our own intellectual field, law, stands squarely at the gap, with a foot on each side, as it yawns, however, farther and farther apart. Again, law-at-the-gap is a peculiarly American phenomenon, for the accidental reason (in part) that law school and law professors require an undergraduate degree, but in potentially any subject matter – altogether different from most of the world. Our intellectual backgrounds come from the humanities, social sciences, hard sciences, the arts – and our intellectual predispositions are often interdisciplinary, for this is precisely what brought many of us into the American legal academy rather than remaining to specialize in our undergraduate fields. (That, and the higher pay.) We straddle the divide and make an effort to straddle it, to keep a foot in each camp. Yet it becomes harder and harder over time, as fields and discourses advance and become more specialized. The gap yawns and widens.

Not exactly news, of course. In that process, however, momentum in the legal academy has clearly been with the social sciences, led by economics. When I was a law student in the early 1980s, philosophy was the backbone of the intellectual project of law, but even at that moment, the mantle was passing to economics. Philosophy, especially moral theory, retains very considerable importance, but it is now conjoined with economic and empirical and social science thought within the field of jurisprudence – see, e.g., the explicitly interdisciplinary work of Larry Solum and Brian Leiter – and it is no longer so clearly the prestige intellectual driver, the prestige foundational field, of the legal academy that it once was. Other parts of the humanities, particularly insofar as they have been absorbed into post-modernism, have effectively retreated within the legal academy into their own sub-worlds – cultural studies, law and literature, etc., all interesting subgenres, but plainly not leading within the legal academy. Indeed, to a great extent, those fields have retreated into their own hermetically sealed worlds.

The phenomenon of the “two cultures,” then, updated to the social sciences and the humanities (and the humanities represented here, in our world of international law, as the assertion of values, moral discourse, idealism, and legal prescriptivism embodying all that) is finally coming to the field of international law, at least in the United States. Long present in the larger academy, long present in the legal academy, and finally arriving in international law scholarship. And this is the American debate, quite apart from the debate with the rest of the world over the intellectual place of the project of positive international law. It has been going on for the past fifteen years, but the pace has been accelerating.

Why should the pace accelerate? There are potentially lots of reasons, ranging from the snowball effect to shifts in how younger scholars are trained and what they are interested in. These effects finally catch up to international law scholarship for the same reason that Einer Elhauge, for example, has just produced what is in essence a comparativist textbook on competition law, even though he would not describe himself as primarily an international law scholar – globalization has made international and comparative law a natural necessity across many, many fields, especially in areas of economic law. All of these answers could be true in greater or lesser degree. I want to focus on one, however – partly for its own interest and partly because it illustrates a larger issue. It is the intersection and dissection of method and ideology, but first I will say a word about ideology separately.

Method and ideology in international law scholarship (post 2 of 4)

Ideology and acrimony. Jose Alvarez, in a discussion about international law scholarship at the upcoming Vancouver ASIL-AALS meeetings (at which I will be a panelist, and which all readers of this blog should attend!), asks what is wrong, as well as what is right, with how we do international law scholarship today. I will say in a moment, below, that much of what is wrong with comes from confusing matters of method and matters of ideology, and from assuming that one necessarily establishes the other. Much of the confusion, and confusion fueling a certain acrimony within current international law scholarship arises, it seems to me, from the failure to distinguish the two.

Yet there is also a certain amount of “natural” acrimony that arises any time an old guard, in this instance liberal internationalism, has to contend with the emergence of new normative movements, such as, in this case, democratic sovereignty. I recall the peculiarity, a few years ago, of being at a conference deliberately devoted to debating democratic sovereignty. A very senior faculty member at the host institution, who had declined the invitation to take part, remarked to me out in the corridors that we inside were dinosaurs, debating issues that had long since been settled in international law in favor of liberal internationalism. There was a certain irony since, with one or two exceptions, including me, everyone else at the conference was a mere youngster in the academy: the word he wanted, perhaps, was not dinosaur, but reactionary, but even that would not be precisely accurate, for the reason that neo-conservatism was many things, but reactionary was not really one of them. Part of the acrimony stems from the rise of a new school, in the time honored fashion of the academy, but with the special acrimony that attaches to a project that is not merely intellectual but moral.

That specific ideological acrimony has lessened as the years since 9-11 have lengthened. People have got used to having a certain amount of intellectual and political disagreement as part of what used to be far more a largely closed club of the thoroughly like-minded. The collapse of the neoconservative project, too, has somewhat taken the teeth out of the democratic sovereigntist movement – always fairly marginal anyway – within the US academy. That collapse has also perhaps permitted a reinvigoration of the liberal internationalist project, and certainly the sense that it is no longer under attack – having had, for the first time in living memory, to defend itself intellectually – and that it is, within academic circles, firmly back in the driver’s seat. Within the ASIL itself, the convergence of so many scholars from abroad has tended to dilute methodological debates that mostly resonate within a specifically American academy. One can perhaps sense this general relaxation at ASIL annual meetings these days compared with a few years ago; Peter Spiro remarked in passing at Opinio Juris a few months ago to the effect that the sovereignty moment had passed and the pendulum was now swinging back, and about that within the academy, I think he is right.

Method and ideology. But there remains an increasing intellectual confusion, and with it some friction, in the conflation of ideology and method. One way to express it is this. For many years, Anne-Marie Slaughter and a few others argued for reaching to IR social science paradigms as a means of arguing for liberal internationalism and, more recently, global network theory. Yet despite Slaughter’s preeminence in the international law field, and despite a certain kind of seepage of specifically IR theory (more specifically still, Robert Keohane’s political science) into international law scholarship, the primary take-away from social science in international law scholarship, as perceived by the international law academy in the United States, has been the assumption that to argue from basic law and economics methodologies such as rational choice theory is to argue as a matter of ideology against liberal internationalism and for some version of state sovereignty. (I think this is right. And one of these days I will do the work necessary to back up this assessment of international legal scholarship!) The assumption has been, as Oona Hathaway and Ariel Lavinbuk aptly noted in their Harvard Law Review review-essay of Goldsmith and Posner’s The Limits of International Law, that to adopt a descriptivist method entails reaching a certain and, for many, uncongenial, normative conclusion.

This assumption, I would suggest, has been predominant among liberal internationalists casting a very wary eye (despite Slaughter’s indefatigable urgings to greater methodological ecumenicism and a favorable view of IR theory) upon descriptivist, rational choice, empiricist, and other such social-sciencey ways of doing international law scholarship. And not without reason, since that assumption has also been shared by many descriptivist international legal scholars, starting with Goldsmith and Posner. It is not, to take Goldsmith and Posner in particular, merely that their personal inclinations are sovereigntist. It is, rather, that their particular descriptivist theory endorses, entails even, a sovereigntist conclusion – in other words, some versions of descriptive theory do indeed prescribe and proscribe certain normative conclusions, including sovereignty and liberal internationalism as normative positions in international law scholarship.

In the case of Goldsmith and Posner, it works this way. They argue, from a certain rational choice model, that states act from their interests (even if interests are defined to allow the inclusion of values), and that other mechanisms, such as cosmopolitanism, are not sufficient to overcome the fact of states acting from their interests (however they define them). As they set it out, liberal internationalism – as an independent causal actor – becomes something that is a causal fifth wheel, unnecessary to explain things, while state sovereignty becomes something like the “last man standing” after other explanations are ruled out or shown to be superfluous. (They do not say so, but in this regard, it is really an argument from Occam’s Razor). They may, of course, be right or wrong about this. The point, rather, is that if they are right, then their methodology – a particular iteration of rational choice theory – has, if not precisely endorsed an ideological outcome, at least ruled the most prominent one, liberal internationalism, off the table on methodological grounds alone. In other words, at least some versions of apparently descriptivist method entail ideological outcomes, and The Limits of International Law provides a good example.

But not all descriptivism entails normative conclusions in this way – indeed, most are just that, descriptive. That is, if most methodologies are independent of ideology, or not intrinsically tied to an ideology, then one can imagine a picture of international law scholarship in which there are rational choice theorists who are liberal internationalists, or rational choice theorists whose conception of rational choice leads them to liberal internationalism. And sovereigntists who get there by means of values rather than by some rationalist method. And many other possibilities. Any particular one might be right, might be wrong, but my point is that it would be a mistake to presume, walking into the department store of theory, as it were, that method and normative conclusions must all line up a certain way. They need not do so. But some of the acrimonious arguments that today go on, it seems to me, arise because we have not sufficiently carefully separated out the methodological issues from the normative issues, and we have assumed that one must automatically map onto the other. If only we were able to get past those arguments based on confusion, we could get down to the acrimonious arguments within international law scholarship that really matter.

Spatializing the representation of international law scholarship (post 3 of 4)

Spatializing the representation of international law scholarship. Let me try to put this slightly more formally, by offering a spatial model of the intersection of method and ideology in international law scholarship. [I don’t have spiffy graphics yet, so please bear with me; this also draws on earlier posts on this blog.] My goal here is not to make a normative point about international law scholarship, but instead to offer a way of representing and comparing the work of different scholars by reference to their method and ideology, in a way that plainly separates the two concepts.

Indeed, I propose to separate them so much that they become two different graphical axes.

Imagine an X axis, horizontal, representing the range of positions between what I will baldly assert is the critical ideological question of international law scholarship – sovereignty or liberal internationalism. There is a range of possible positions here, running from sovereignty as a value for its own sake, sovereignty justified by the autonomy claims of a democratic community, multilateralism among sovereigns, multilateralism that pools sovereignty, liberal internationalism, and finally genuinely global federalism. (I will not elaborate on this range here; I discuss them in a couple of earlier articles – in my review of The Limits of International Law, and in my review of Slaughter’s A New World Order.)

Now imagine a vertical Y axis, representing a range of methodological positions with prescriptivism at the top, above the X axis, and descriptivism on the bottom. Within the range of methodological positions we might put at the top of prescriptivism moral idealism – roughly the view that the content of public international law ought to be strongly informed by a moral vision of that law, whatever precisely that moral vision might be. At the bottom we might put two different descriptivist alternatives – rationalism of the kind that leads to deductive rational choice and game theory, and empiricism of the kind that leads to, for example, Oona Hathaway’s empirical work on the effects of human rights treaties on human rights outcomes.

[Clever graphical insert]

(In a full modeling, we might include a third Z axis – one corresponding to method in a different sense, not the sense of prescriptive versus descriptive, but something. That sense might be how closely, or not, methods of international law are endogenous or exogenous to the legal materials of the law itself. They might include such methods as the legal process school, positive or doctrinal legal analysis as examples of endogenous methods and, as examples of exogenous method, feminist international legal theory, various schools of IR thought that look for non-legal explanations for movements of international law, or, most strikingly, Koskenniemi’s simultaneously endogenous-exogenous study of international law as a profession, at once internal to legal thought but also exogenous in the form of sociology (some brief commentary on his work, here, plus a reference to his latest, very interesting paper on SSRN, here).

(For that matter, one might also imagine an axis that looked to whether the method in question was fundamentally legal, political or social theory in its explanatory focus, in what it took to be theoretically revelatory. I will leave aside the complications of a third, or fourth, axis in this discussion, however.)

There are important skeptical questions one might ask about these proposed axes. They have the virtue of clarifying by separating. But do they also obscure? Are these the right ways to characterize the debates over ideology and methodology? And even if they are, by setting them out as axes, they create ranges of positions – whereas these positions might not be well-represented as linear points as though in a range.

These are all legitimate questions and quite possibly fatal objections. Nonetheless, I persist with this spatial, graphical model to see if it seems to illuminate anything about the current state of international law scholarship. I feel most comfortable representing the sovereignty-liberal internationalism positions on a linear range, because that seems accurately to capture the sense that more international federalism equals less sovereignty and vice-versa, at least as sovereignty is traditionally understood. I also am reasonably comfortable putting prescriptivism and descriptivism as opposite points on a line – although it seems also true that empiricism and rationalism are really at the same point on this line on the descriptivist side. Why? Because although many people in their actual work separate the two, in fact when it comes to accepting conclusions as factual, ordinarily we want both an inductive, empirical confirmation that the world conforms and a deductive explanation that tells us why that should be so. We want them both.

If, however, even for discussion’s sake such a coordinate grid is accepted, what might we learn out of it, if anything? Suppose we think in crude terms about where we might locate one or another figure in international law scholarship. In fact we should proceed article by article or book by book, but for illustration’s sake, let’s proceed with a couple of scholars.

Upper right hand quadrant. Here we locate scholars who are both prescriptivist in their method and liberal internationalist in their ideology. For example, Louis Henkin, Henry Steiner, and Harold Koh, and a great many more besides, especially of the last two generations of international law scholars.


Lower left hand quadrant. Here we locate scholars who are descriptivist in their method and sovereigntist in their ideology. For example, Goldsmith and Posner.

[Another clever graphical insert]

Those two quadrants essentially describe the state of discussion up until the past couple of years. They also summarize much of the confusion between ideological and methodological commitments that have characterized the debate. But increasingly, the other two quadrants have much of the most interesting argumentation:

Upper left hand quadrant. Here we locate scholars who are sovereigntist by ideology but whose methodology is prescriptivist or normative. I would include myself here – someone whose argument for democratic sovereignty is essentially a moral argument, every bit as much as, say, Louis Henkin’s argument for a liberal internationalist legal order is a moral one.

Lower right hand quadrant. Here we locate scholars who are liberal internationalist by ideology but whose methodology is descriptivist. This is where much of the intellectual ferment in American international law scholarship is taking place among the younger generation – scholars who are able to engage in the discussion of IR theory, game theory, rational choice, empirical and statistical studies, but who wind up favoring liberal internationalism rather than Goldsmith and Posner’s sovereignty position. Sometimes – certainly not in all writings – one might put in this category Slaughter, Hathaway, Lavinbuk, Raustiala, Guzman, etc.

[Still another clever graphical insert]

Does this tell us anything? Well, maybe it didn’t need all this graphical machinery to do so, but at a minimum it tells us that you cannot read off ideology from method or vice-versa. And that much of the most interesting work is being done today with liberal internationalist commitments but rationalist methodology, Goldsmith and Posner notwithstanding. Which is to say, these scholars argue in effect that if Goldsmith and Posner had captured rationalism in a more sophisticated fashion that better models the real world, their results would have been quite different from what their book argues.

It also bears noting that this two axis representation likely leaves many non-US scholars wondering where, or if, they fit in this representation at all. The reason is that in order to address what, for many of them, is their scholarly method – positive law analysis or doctrinal analysis – we need to add the third axis that I have here left aside, the axis that takes into account endogenous versus exogenous explanation in international law.

Independent and dependent variables. This brings us back more formally to a problem raised earlier in connection with Goldsmith and Posner. The separation of issues onto axes, mapping of the intersections between them, does not, by itself, address the question of dependence and independence. A theory of international law, , might assert such a relationship, either one of correspondence or of causation - as Goldsmith and Posner’s does – as a consequence of the internal workings of the theory. But it might not. Hathaway and Lavinbuk, in their review of Goldsmith and Posner, call for a recognition that method and ideology are independent variables. But of course for any particular theory of international law, they might not be – they might stand, on the contrary, in a precise relationship of dependence.

The point is, Hathaway and Lavinbuk are correct to say, there is no necessary relationship of dependence or independence; it depends entirely on the internal claims of any particular theory. And again, I would suggest that some of the argumentation that takes place today within academic international law occurs because of prior assumptions about necessary relationships of dependence or independence of method and ideology, which might be true of any particular theory – or might not. The clear separation of what is at stake makes it easier (maybe) to test whether a theory of international law asserts dependence or independence, and with respect to what.

The coming rise of social theory in international law scholarship (post 4 of 4)

The rise of social theory. So the way in which we do academic international law would benefit from clearly separating out the matters at issue; a graphical representation might help with mapping out the distinct concepts. And with mapping out the claims of dependence and independence made with respect to the concepts. Maybe the graphical representations just confuse matters, though.

That said, much of the most exciting work to be done in academic international law is not precisely prescriptive or descriptive in the sense those terms are used above. Instead, much of the most exciting – and controversial and provocative – work in international law theory, at least, will come in the suggested as an alternative Z axis, above – in the form of social theory, on the one hand, and concrete sociology, on the other. The questions at issue here will be things like the social development of international elites, both theoretical and empirical perspectives – in ways that are quite different from IR modeling, or game theory, or rational choice, but draw instead on quite different traditions of social theory. And questions of legitimacy, understood in genuinely sociological ways, rather than as concepts in political and legal theory alone.

Globalization, and theories of globalization, seem to me to make this conversation within the international law academy both desirable and inevitable. When Slaughter calls for the development of global judicial elites, for example, or when Ryan Goodman and Derek Jinks talk about “socializing” toward human rights compliance, or when Benedict Kingsbury talks about technocratic global networks, they are invoking not so much political theory or legal theory as much as sociology and social theory. These views embody large, sometimes implicit, claims about the nature of the international and the global – viz., that they, or significant parts, are emerging as societies, analyzable as societies as such. Normative and factual skeptics of such claims, such as myself, are no less interested in sociology and social theory concerning these matters – critics like me tend to reach, naturally, to forms of critical social theory, new class theory, elite formation theory, in order to contest the factual and normative assumptions that lie behind the “world as society” and “global bourgeoisie” movements.

This is a desirable shift given the way in which arguments over globalization and the norms of globalization are progressing – but one which is quite different from the more obvious, long overdue “invasion” of academic international law by law and economics, social science, rationalism and empiricism. Method and ideology are going to be involved in arguments in the future that are substantially different and much more complex than even the current movement to bring academic international law into the mainstream of American academic law through the application of social science techniques. And that is all to the good for how we collectively “do” international legal scholarship.

(There remains a further discussion about the role of doctrinalism in international law - the role of positive law, doctrinal analysis, the methodological commitments both implicit and explicit international law in particular. Peter Spiro at Opinio Juris, here, draws such a discussion specifically about international law scholarship into a broader discussion initiated by Einer Elhauge, guest-blogging at Volokh, here, and see responses by Larry Tribe, Jack Balkin, and Orin Kerr. But I will let that discussion rest - for the moment.)

Grill skills

We pause for a moment on this blog in stunned admiration of my zen grill skills. The roast pork, whole roasted tomatoes and enormous Vidalia onions, and whole pineapple glazed in amaretto and turbinado sugar and a little vinagre de Jerez. Actually, I scattered a little glaze of turbinado sugar onto the pork, too. The green salad was thoughtfully provided from my neighbor Dorothy's lettuce garden.

Congratulations to WCL graduates!

Today is graduation at Washington College of Law, American University, where I teach. I'm about to head over to the ceremony. My warmest congratulations to my students and all the WCL students graduating today, their parents and friends and family who have come to join them.

Summer for me consists of finishing some very overdue manuscripts - my UN reform short book manuscript, in particular. I'm also teaching in the WCL London-Paris-Brussels-Geneva program for a couple of weeks in June. I do the international economic law part, which takes place in London and Paris. Then in July I'll do another WCL international economic law short course, in Santiago, Chile, which I plan to do in Spanish, so wish me luck! Although in some ways, talking about finance in Spanish is easier than many more mundane subjects, because there are so many close cognates.

I also want to finish a couple of TLS reviews this summer, one on immigration, assimilation, and citizenship, and another on microfinance and international development finance. My American University International Law Review essay on neoconservatism, Goodbye to All That? has remarkably made the SSRN current top ten list for law articles - who would have thought there would be that much interest (and maybe there isn't, once actually downloaded - "downloaded," of course, does not mean "read"). I have a talk in essay form on (really an attack on) the "new liberal realism" coming out in the Fordham International Law Review soon, but that is complete. And my Fukuyama review from the TLS is coming out in June in the Madrid Revista de Libros, which makes me very, very happy and proud - I used to read the Revista back on sabbatical in Spain a couple of years ago sitting in the cafes of Sevilla (accomplishing much less academic work than originally planned, but that is the Seville-effect) and sometimes thought about contacting the editors to see if I could submit something, and via the TLS, here we are. Luis Gago at the Revista has done a translation that makes me sound so erudite and intelligent that - well, I blush.

So that's what I'm up to at this moment. Now to put on a coat and tie and head over the WCL and see my students and all the students march in and ... graduate! Congratulations!

Wolfowitz on Thursday, May 17, 2007

(Whoops, as I write, Wolfowitz has resigned - WaPo evening breaking news story here. For those, especially at the Bank, who think this signals a new day dawning for the poor of the world, well, call me unimpressed. Why was it again that we need this institution?)

(See my earlier posts here (on Sebastian Mallaby defending the mission of the Bank), here (on the Bank mission and the Bush administration), here (my piece in the Financial Times criticizing the Bank's ethics committee) and here (responding to criticism on my Financial Times piece), and finally here, (arguing that the next US administration, rather than take on issues like Bank reform, will simply opt for "meek multilateralism," the go-along, get-along approach of the early Clinton administration).)

(ps. Welcome instapunditeers and thanks Glenn! I've corrected the grammar in a couple of places, and improved it in a couple of others, including some bits that Instapundit was kind enough to quote - I don't think I've changed the meaning.)

***
Of the main press stories out there in the Thursday, May 17, 2007 papers ... the Wall Street Journal news story on the front page is the best and most detailed, shows actual familiarity with the documents, reports, board reports, and does not seem merely sourced to inside sources with their own agendas at the Bank, the administration, or elsewhere. It's not that inside sources are unhelpful - but if you haven't read the underlying documents, then as a reporter, you can't really know how you're being spun, and it is 100% that you are being spun. Unfortunately, the story is behind the subscriber wall.

Bret Stephens has an opinion page story on yet another of the many ethical lapses at the Bank - yes, yes, Mallaby tells us that the Bank is no more corrupt than other international organizations, but isn't that damning with the worst kind of faint praise? - open link, here. It is about allegations of an affair by Thomas Scholar, an official of the Bank.

It isn't surprising, by the way, that so many of the ethical issues at the Bank and other international organizations involve sex. International organizations, in light of their long questionable practices concerning promotion of women and other gender issues, were forced by feminists, many of them Americans, to adopt sexual harassment and related policies which, while standard at American corporations, nonetheless have never culturally been taken on board by the rest of the world even as they mouth the proper form of words. One might hope that the kind of gender issues involving the UN and international organizations wouldn't so frequently be, for example, twelve year olds being prostituted by UN workers in Africa, but, well, there you have it. The official response is the twinned one of announcing "zero tolerance" of child abuse and rape (never, of course, actually followed) and a call for everyone to adopt a "gender perspective" - take a look, for example, at the September 2005 General Assembly UN reform document - every other line, more or less, calls upon everyone to adopt a "gender perspective" as a cure for everything from child rape by UN staff in Africa to AIDS. Seems as unlikely in the former as the latter.

One of the many ironies in the Wolfowitz affair, however, is that in many respects, the target of the Bank staff seems to have been as much Riza as Wolfowitz - she is a true believer in feminism, and as a true believer, she seems to believe that so many, many things can be traced back to misogyny - and, as a true believer in misogyny, was more than willing to throw fits to get her way by playing the gender card. She deserved, in my view, her raises as compensation for the ending of her career at the Bank, and an institution which makes as much out of gender equity as the Bank theoretically does should be prepared to have its staff demand that it do so even if, to someone outside the institution's official ideology, it constitutes playing the gender card. It seems clear enough that Riza played the gender card on the compensation issue, because she was known for playing the gender card everywhere. And everyone, starting with the Ethics Committee and the human resources department, seems to have preferred to avoid her rather than face a scene. In important ways it was the unwillingness even to face, even to have a meeting with, an angry Muslim feminist whose career, after all, was being sacrificed on the altar of her paramour that is a central reason why that political hack (now hacking away at UNDP, but then the two deserve each other) Ad Melkert would not meet with her and dumped the whole thing back on Wolfowitz. Back in those days, compared to a scene with Riza, it seemed like a good way to handle it, stuff it into the shredder and forget about it. Wolfowitz says as much when he says that everyone at the Bank sought to avoid battle with an angry Riza - people did not want a battle with her, did not want her as a supervisor, pretty clearly feared her in a Bank with Wolfowitz running it, and so would not settle for the usual recusal deal that governed other senior staff relationships. They wanted her out, and got it. Vive la sisterhood of the Bank.

So the rest of the world, starting with the staff of the Bank, may talk the gender talk - but it doesn't mean it, at least not in the way that Americans, following conditions laid down by a combination of Mackinnon and the US Supreme Court, understand it. Maybe they're right and we Americans are wrong - I'm not a feminist and see many problems with how the United States has evolved on these things. But in any case, in an international organization, these gender rules seem inevitably on a collision course with the fact that, among other things, extramarital and other affairs are socially acceptable at the Bank and the UN and all sorts of international institutions, no American puritanism for them - a collision course, that is, unless the institution reconciles them with a large, large dollop of hypocrisy and double standards. Which is the usual attitude I have found at international organizations. For that matter, I recall, while serving as a general counsel for a large transnational charity, having to deal with the outrage - much of it from very committed feminists in Western and Eastern Europe - at the attempt, in the interests of avoiding liability in NY courts, to impose an American sexual harassment standard on the global organization. They didn't buy it, and my experience of Europeans - and Asians and Africans and people from many places - is that although political correctness of the kind that infuses institutions like the Bank and oozes from its many pores and orifices is the official line, it is not really adhered to and not really believed. And since there is no recourse to American courts, which do believe it, it is honored in the time honored fashion of European diplomatic hypocrisy, an elegance of words but something quite different in the way of action.

Well. The Washington Post story is pretty good today, as well. Here, by Paul Goodman. He, too, seems to have read the documents and talked with more than just a coterie of Bank sources. The New York Times, as has been usual in this as well as other international organization scandals, fares the worst, with Steven Weisman's front page story (behind the subscriber wall) simply seeming to channel Bank insiders. Who knows, maybe he diligently combs through everything, but it sure doesn't show up in the reporting.

The reporting is shifting, with a certain relief it appears, away from factual reporting to soft opinion journalism about the mission and future of the Bank. Not investigative, not reading documents, but interviewing some talking heads on one side or the other. Mind, this is an important discussion, but it has not been very helpful to have it shoehorned into a (non) scandal that is really about corporate governance, or the lack thereof at the Bank - and I refer to the Bank board, and its ethics committee, and its former general counsel - not anything as highminded as the Bank's mission. I've posted here earlier on the fundamental weaknesses of its mission/business model, but that's not what the Wolfowitz affair is all about.

Michael Gerson in WP on African Episcopal missionary outreach to the US

Michael Gerson, a new columnist for the Washington Post, has an important and insightful column, Wednesday, May 16, 2007, Washington Post, on the installation of the missionary bishop of the Nigerian Anglicans to northern Virginia, and the movement of the global south to re-Christianize the global north. This article is about the United States; my sense, however, is that a historically much more important re-evangelization will eventually take place in Western Europe, led by Africans and African immigrants.

On of these days, when I get a moment, I will write something about religion here. I suppose I might respond to part of Chris Hitchens' new book, but I'm more interested in the sensibility about religion at this moment.

I was once a Mormon missionary, many years ago, in Peru. I am a long lapsed Mormon, but unlike a lot of lapsed Mormons, I hold no ill-feelings for the Mormon church. Most of my family is still devoutly Mormon, and I have enormous respect for how they live they lives, and well as a great fondness for Mormon culture, even if I don't count myself as a Mormon believer. I don't write about the Mormon church very much, although I wrote two long review essays about the Mormons some years ago - one in the Times Literary Supplement, on the intellectual and spiritual roots of Mormonism in gnosticism and the radical religious reformation, here, and a second in the Los Angeles Times Book Review, when under the editorship of the great Steve Wasserman, here, on a new journalistic account of the Mormon church.

Excerpted from Gerson's column, midway:

***
In 1900, about 80 percent of Christians lived in North America and Europe; now, more than 60 percent live on other continents. There are more Presbyterians in Ghana than in Scotland. The largest district of the United Methodist Church is found in Ivory Coast. And many of the enthusiastic converts of Western missions have begun asking why portions of the Western church have abandoned the traditional faith they once shared. Liberal Protestant church officials, headed toward international assemblies, are anxiously counting African votes, because these new voters tend to take their Bible both literally and seriously.

This emerging Christianity can be troubling. Church leaders sometimes emphasize communal values more than individual human rights, and they need to understand that strongly held moral beliefs are compatible with a commitment to civil liberties for all. Large Pentecostal churches are often built by domineering personalities promising health and wealth.

But the religion of the global south has a great virtue: It is undeniably alive. And it needs to be. A mother holding a child weak with AIDS or hot with malaria, or a family struggling to survive in an endless urban slum, does not need religious platitudes. Both need God's ever-present help in time of trouble -- which is exactly what biblical Christianity claims to offer.

Some American religious conservatives have embraced ties with this emerging Christianity, including the church I attend. But there are adjustments in becoming a junior partner. The ideological package of the global south includes not only moral conservatism but also an emphasis on social justice, an openness to state intervention in markets, and a suspicion of American economic and military power. The emerging Christian majority is not the Moral Majority.

But the largest adjustments are coming on the religious left. For decades it has preached multiculturalism, but now, on further acquaintance, it doesn't seem to like other cultures very much. Episcopal leaders complain of the threat of "foreign prelates," echoing anti-Catholic rhetoric of the 19th century. An activist at one Episcopal meeting urged the African bishops to "go back to the jungle where you came from." Not since Victorians hunted tigers on elephants has the condescension been this raw.

History is filled with uncomfortable turnabouts, and we are witnessing one of them. Serious missionary work began in Nigeria in 1842, conducted by a Church Mission Society dedicated to promoting "the knowledge of the Gospel among the heathen." In 2007, the Nigerian outreach to America officially began, on the fertile mission fields of Northern Virginia. And the natives here are restless.

Cooking salmon

Among the things I have learned on the Food Channel, while sweating away at 20% oxygen, is how to cook salmon. Specifically, from Emeril LaGasse, what to do with fresh salmon, skin on. To wit. Tonight, I heated the oven to 500 degrees F, and put a very large, double size cast iron skillet inside to heat - for nearly an hour. (Meanwhile, I stuck the first large tomatoes of the season at an affordable price in to roast in some olive oil and salt.) While the skillet was heating, I marinated a big slab of salmon, skin on, in some wine, garlic, balsamic vinegar, olive oil, and some seafood spice mix. When the skillet was very hot, I patted the salmon dry, and turned on the oven broiler. I rubbed some more dry spices into the fish, and then put the dried off salmon into the skillet, face down and skin up. Then I stuck it under the broiler on high. The skin sizzled and crackled and the salmon cooked very, very quickly. Took it out, drizzled some olive oil on it, and bingo. Very, very moist, with crackling salmon skin.

While that had been going on, I had taken some small purple skinned potatoes, washed them, and cooked them mostly done in the microwave in a bowl with some white wine, olive oil, salt, and garlic. The inside of the potato was mostly cooked through. I removed the fish, then added the potatoes to the skillet plus the wine and oil, added some more wine, deglazed the pan to get the fish juices all dissolved, then put it back into the oven with the potatoes under the broiler. They sizzled a while and got a little crispy, and the wine reduction sizzled. Mixed it all together and that was the potatoes.

Romaine salad with a dressing that included a tablespoon of hummous. Fresh green beans soaked and then cooked in white wine until just crunchy, and the oven roasted tomatoes.

Dessert was a bunch of blackberries on sale, soaked in a couple of tablespoons of balsamic vinegar with some vanilla turbinado sugar on top.

Until watching Emeril, I had no idea that you could really do things with an ordinary oven broiler. But using a heavy cast iron skillet preheated makes all the difference in the world.

Marko Milanovic and commentators discuss human rights and humanitarian law interplay, and meaning of combatant, at Opinio Juris

Check out this very interesting discussion at Opinio Juris, kicked off by guest blogger Marko Milanovic. It starts with the question of the interplay of human rights law and international humanitarian law - John Cerone, by the way, has a new article out on this subject that I will try to remember to link to - and then moves into a discussion of the meaning and implications of combatant. I have my own views on both these topics of course; I tend to be closest in this discussion to Geoff Corn's comments, but also have some differences. As I am deep in the rewrite of a manuscript on the UN, UN reform, and governance, plus international development issues related to the World Bank and Paul Wolfowitz, however, I have to take a pass at commenting on this very interesting exchange.

Very fine piece by Stuart Taylor, National Journal, on new approaches to counterterrorism policy

Stuart Taylor is one of the most incisive journalists around - on a wide variety of topics ranging from the Duke lacrosse case, where he was one of the very, very earliest journalists to raise skeptical questions to the topic of his May 14, 2007 National Journal column, on counterterrorism. He notes that there are scholars, activists, and policy analysts - I am honored to be included among them - seeking to find common ground going forward on counterterrorism, looking beyond the Bush administration to the next administration and the 111th Congress. (His column a couple of months back on the possibility of a national counterterrorism court was also very, very important.) From the column:

***
OPENING ARGUMENT
Terrorism Suspects And The Law

By Stuart Taylor Jr., National Journal
Monday, May 14, 2007

What should our government do when it captures a noncitizen suspected of being an Islamist terrorist?

Under the Bush administration's approach, partly ratified by Congress, such people can be imprisoned indefinitely, perhaps for life, without ever seeing a judge or jury, based on slapdash military hearings with no defense lawyers, no real opportunity to confront the evidence against them -- which can be obtained through coercive interrogation -- and all-too-cursory judicial review. Some detainees have also been subjected to years of interrogation, including techniques so brutal as to meet many definitions of torture -- and, in a few cases, to cause death.

No satisfactory resolution of the debate over the treatment of suspected terrorists is likely until at least 2009.

By contrast, under the approach demanded by some human-rights groups, even a captive who is undoubtedly a mass-murdering terrorist must be freed unless the government can prove his guilt beyond a reasonable doubt in an ordinary criminal trial. If the proof would publicly expose secrets so sensitive as to endanger the lives of intelligence sources, that would be the government's problem. Nor could terrorist masterminds be subjected to even mild discomfort by interrogators seeking to extract life-saving information.

The gulf between these two approaches illustrates the polarization of our political and legal debate on the handling of terrorism suspects. No satisfactory resolution seems likely until at least 2009. Then, perhaps, we may have a new president willing to heed the advice of the more moderate-spirited experts (some named below) who have been thinking through the challenges posed by the hundreds of suspects now held by the military and others who may be captured in the future.

The most important challenge will be to devise a fairer process for deciding whether to subject suspects who may or may not be terrorists to long-term detention -- an issue of much greater importance than the more publicized Bush plan for criminal trials of a few detainees before military commissions.

Meanwhile, with the administration's far-too-error-prone approach in place and its loudest critics offering no politically acceptable alternative, America's once-proud image suffers -- more than it should, probably -- and the terrorists win recruits and sympathizers around the world.
To make things worse, the administration is trying to leverage the denial of serious judicial review to Guantanamo Bay detainees -- approved by Congress in October's Military Commissions Act -- into a denial of serious legal representation as well. The Justice Department has urged the U.S. Court of Appeals for the District of Columbia Circuit to limit lawyers handling appeals from military decisions classifying detainees as enemy combatants to three visits per client; to let the government read lawyer-client letters; and to let it deny the lawyers access to secret evidence.

At the other extreme, some human-rights advocates seem so deep in denial about the magnitude of the terrorist threat, as well as about the differences between their own views and those of the vast majority of voters and politicians, that their protests fall mostly on deaf ears. Such groups have little prospect of influencing American policy even if Democrats take the presidency and hold Congress in 2008.

After all, when the Supreme Court rebuffed Bush in 2004 [PDF] and again last year [PDF] for breaking the law in his handling of detainees, Congress promptly changed the law after each decision to overrule the justices and give Bush most of what he wanted. And while human-rights groups would completely ban even mildly coercive interrogation, some Democrats, including Sens. Hillary Rodham Clinton and Charles Schumer of New York, have said that they might support full-fledged torture in a "ticking-bomb" scenario. Such comments, plus the unwillingness of most Democrats to push for reforms in the treatment of detainees, reflect the reality that public opinion is far closer to Bush's guilt-presuming approach than to the unrealistic prescriptions of, say, Amnesty International.

And on the merits, the military's highly inadequate Combatant Status Review Tribunals, which decide what suspects to incarcerate as "enemy combatants," do provide protections consistent with the Geneva Conventions and the Supreme Court's 2004 Hamdi v. Rumsfeld decision.
It must also be admitted, in my view, that although "meaningful, probing judicial review has a more substantial place in this war than the administration allows, it has a far-more-limited one than many civil libertarians and human-rights advocates imagine," as Brookings Institution guest scholar Benjamin Wittes writes in a forthcoming June/July Policy Review article.

Wittes and other moderate-minded experts of diverse political views appear to agree on the need for policy makers to find a middle course between the Bush and Amnesty International extremes.

The best hope for moving toward a decent detainee policy is for the winner of the 2008 presidential election, and the 111th Congress, to look to such experts for guidance.
These experts include (among others) Jack Goldsmith of Harvard Law School, one of the few high-level Bush Justice Department officials handling terrorism issues to leave with his reputation intact; former Clinton Justice Department officials including Walter Dellinger of Duke Law School and Neal Katyal of Georgetown Law School; Elisa Massimino, Washington director of Human Rights First; Kenneth Anderson of American University Washington College of Law; and Curtis Bradley of Duke Law School, who served in the Bush State Department.

Then there is Bill Clinton, who would make a perfect chairman for a national commission on detainee treatment. In a little-noticed National Public Radio interview last fall, the former president outlined a sensible approach to the hypothetical interrogation of a captured terrorist mastermind who is thought to know the plans for an imminent attack:

"You don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding... if they really believe... the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of him, then they can present it to the Foreign Intelligence [Surveillance] Court, or some other court, just under the same circumstances we do with wiretaps. Post facto.... But I think if you go around passing laws that legitimize a violation of the Geneva Convention and institutionalize what happened at Abu Ghraib or Guantanamo, we're going to be in real trouble."

Even the wisest experts on these issues disagree about many things -- most of all, perhaps, about whether federal courts should have the power (denied by the Military Commissions Act) to hear full-fledged habeas corpus challenges to the military's detention or treatment of non-Americans captured overseas. But many of them appear to agree about some big things:

The demands by many human-rights advocates that all terrorism suspects be released unless proven guilty of crimes should be (or, at least, inevitably will be) rejected by the president, Congress, and the courts. Some form of administrative detention -- not to punish but to incapacitate terrorism suspects for whom criminal prosecution is not feasible -- will be with us for the foreseeable future.

The detention hearings implicitly approved by Congress last October are unnecessarily error-prone. Terrorism suspects should have the assistance of counsel in these detention hearings; the lawyers should (if they qualify for security clearances) have access to all of the government's evidence and should be able to seek evidence and testimony from abroad, insofar as practicable.
Congress should revisit and reject the Bush position that the government can grab any foreigner in this country and lock him up indefinitely as an enemy combatant, with no trial and no more protection against erroneous detention than is given to those captured in Afghanistan.

The definition of "unlawful enemy combatant" in the Military Commissions Act is too broad. It includes not only active participants in hostilities but also anyone who "purposefully and materially" supported attacks on the United States or its allies -- language that arguably encompasses anyone who sent money to a banned group or food to a combatant son.

The act's vague, confusing rules on interrogation tactics leave too much room for executive branch manipulation while also leaving interrogators too exposed to second-guessing.

More-rigorous federal judicial review is needed over the integrity of the military's fact-finding process than the Military Commissions Act provides, both in the initial decision to detain a suspect and in subsequent parole-type hearings to determine whether he still poses a threat.

"Deferential [judicial] review of anemic procedures yielding decisions with enormous consequences for the liberty of individuals captured under murky circumstances," as the forthcoming Wittes article asserts, "is not a recipe either for justice or for public confidence in American prosecution of the war on terror in the long run."

-- Stuart Taylor Jr. is a senior writer and columnist for National Journal magazine, where "Opening Argument" appears. His e-mail address is staylor@nationaljournal.com.

The Examiner (DC) on one-way multiculturalist ratchet and Muslim special demands

The Examiner (DC) editorializes against the increasingly common trend - already de rigeur in Europe - on American college campuses to grant special rights to Muslim student demands that they would plainly not grant, and often would not be allowed by courts to grant, to other faiths. Here. Thanks Instapundit.

Robert D. Sloane on a voluntarist war convention

Thanks to Jacob Katz Cogan's International Law Reporter, post here, I became aware of this very interesting paper by Robert D. Sloane on a "voluntarist" war convention for addressing jus in bello in fighting with terrorists, at SSRN, here. Very interesting and important new paper, well worth reading.

Sebastian Mallaby on the World Bank and Wolfowitz

Sebastian Mallaby is very smart, and there are few people on the outside more knowledgeable about the World Bank than he, so this column from the Washington Post, Monday, May 14, 2007, A14, is must-reading. As is his 2004 book, The World's Banker: A Story of Failed States, Financial Crises, and the Wealth and Poverty of Nations. Mallaby is a hard-headed, tough-minded journalist and policy analyst in the area of development and global poverty reduction, one of the smartest and best informed outsiders.

Sebastian - I know him a little bit - appears to have been reacting in his WP column to this George F. Will column, also in the Washington Post. Will is not an expert on the Bank or international development; his column appears to have been written after some discussion with one or more of the Bank's critics. Mallaby appears to be out to marshall a lot of facts about the Bank and its work that Will and his readers are not likely to know much, if anything, about.

In taking down Will's column, however, Mallaby sacrifices a lot of legitimate criticism and the possibility of radically rethinking the Bank - radical criticism that he himself is much more willing to consider in his book. I understand that an 800 word column does not allow much room for subtlety. Still, that acknowledged, I don't quite think the column admits what Mallaby himself otherwise would say about the shortcomings in the Bank's business model. I fear that in this column, Mallaby is, alas, simply channeling the Bank.

(I leave aside as unserious the column's opening argument that one can look at the Bank simply like any other company and therefore the board of directors should fire Wolfowitz for having lost their confidence and having lowered share price. The remainder of the column, after all, is one long argument as to why the Bank cannot be treated merely as any private company. If it were a private company, after all, well, it wouldn't exist. As to the bizarre analogy to falling share price, it is inapposite not just because the Bank doesn't have one - rather, the larger point of the remainder of the article is that the Bank cannot, by definition, be measured according to such criteria. It is nearly as idle as the analogy sometimes bandied that US voters are "shareholders" who should fire Bush as "company president.")

Mallaby points out that approximately half of the Bank's outflows last year went to poor(er) countries if one includes, as properly one must, the Bank's soft loans and grants programs - these being the general evolutionary trend of the Bank. This is his main point of attack against the Will column; the (almost certainly correct) dangling implication is that Will has no idea about this. There is, in other words, a story beyond the statistic Will cites that 27 middle income countries received 90% of the regular lending of the Bank.

Fair enough. But one might conclude that this is precisely this statistic that should cause one to wonder why the Bank exists as a bank. Sebastian defends the middle income lending - which, after all, still amounts to over half the Bank's outflows - with the throwaway line that much of it goes to countries like China or Brazil that have many, many poor people. Sure, but how that regular lending really, genuinely, measurably affects outcomes for those very poor people is very murky - perhaps someone more expert than I can explain it, but I haven't seen measurable data to that effect - in large part because of the question of what role it plays in countries that do indeed have access to private capital that far exceeds the capital flows of the Bank.

It is far from clear, at least to me, that such regular lending to middle income countries has positive longterm impacts for the very poor of those countries. In part this is because money is fungible. In order to demonstrate that these funds make a difference to these poor people, it is not enough to show that it increased aggregate capital flows. It is not even enough to show that it was, in the first instance, specifically targeted toward those poor people - because, after all, the inflow of Bank funds, might simply have allowed other funds to be siphoned away. Anyway, the incentives from a financial statement point of view for the Bank to want to make loans to those safe middle income countries is a strong reason at least to wonder what the economic benefit is for the very poor in Bank lending to middle income countries and to want to see strong, reliable evidence for it. Perhaps it is there and, although I do tend to follow this literature, perhaps I have simply missed it - and Sebastian knows this literature, I'm sure, as well or better than anyone, so I would be happy to be pointed toward the papers on SSRN or elsewhere.

But assume for a moment, arguendo, that the criticism I make above about middle income lending is so. In that case, Mallaby's argument falls back on the fact that slightly less than half of the Bank's outflows come in the form of soft loans and grants. But that fact is lukewarm at best and really cuts both ways. The argument radical reformers of the Bank make is that there is little reason why the Bank should not be reorganized to give up the private capital market-intermediation-subsidized lending to middle income countries altogether, and focus entirely on the soft loan-grant programs, to the poorest countries. Of course private capital markets cannot do everything, as Mallaby says - but that is not the argument that the radical reformers make and is surely a straw man.

The problem of the Bank qua bank is that it seeks to intermediate private capital markets (with a subsidy), to try and do precisely what Mallaby suggests private capital markets cannot do because capital markets cannot solve all of poverty's problems. The reformers would suggest that the subsidy in the case of the Bank's ordinary lending to middle income countries is not really enough to compete with the functioning of the private markets; the Bank's lending really is a fifth wheel, and it should give that up in favor of activities for which it is not merely a fifth wheel. (As for crisis lending to middle income countries that Mallaby mentions, well, what is the IMF for? And - I don't know the answer to this - how great was the role of the World Bank in liquidity terms in the Asian crisis compared to the Fed?)

In the case of the poorest countries, however, lack of capital is genuinely an issue. So is the ability to repay any loan. So is technical assistance, and so is any improvement in governance. Why not cause the Bank, therefore, reorganize without the middle-income country intermediation-banking function, and focus solely on soft loans/grants and, let us not forget, technical assistance and governance advising. And focus on countries, societies, that are the poorest. Why endorse half measures?

For if that's what the real value added is, it is far from clear why anyone needs the Bank's goldplated operations -they cost what they cost in part because they are designed to interface with the private capital markets, and to pay the people who do those functions a respectable civil servant salary commensurate with financial professionals in the public sector. In my experience, it is not what one would pay program officers in a foundation dealing with local poverty matters on a grant-making basis, who do not have and do not need the banking credentials on which the Bank prides itself. There are comparably serious skill sets that these anti-poverty program officers need, yes, but frankly they can be obtained at a lower cost, in part because they are not so readily placeable in the private sector. Why not reorganize at a cheaper cost along the lines of far more efficient, far more locally oriented (because less capital markets oriented), far cheaper in terms of transaction costs European aid agencies? (I do not suggest under any circumstances modelling anything on US AID, which is a waste of oxygen.)

If these functions were being carried out by the Dutch, the Swedes, the Norwegians, the Swiss, through their national development aid agencies, how would they do it and what would they pay? Would they pay for a whole banking staff when in fact the operation is aimed at grantmaking anyway, and the money would come from governments in any case, not from the capital markets and relent at a subsidized interest rate? They would - they do - engage in a certain amount of on-lending in which they really do expect to get repaid, but that is far from being the core, let alone over half, of their work.

Why, in other words, should the World Bank continue simply for historical reasons as a bank, a bank designed in cost structure, skill sets, etc., to interface with private capital markets? Why share the pleasure Mallaby takes in noting that slightly under half the bank's outlays went to soft loans and grants - why not think those things should essentially be the whole thing? Why take pride in half-measures that continue precisely the sins that Sebastian correctly sees in thinking that it all can all be done by capital markets? Why not sever the relationship to the capital markets altogether and concentrate on poverty reduction as such?

(ps. The column also mentions in passing that Bank salaries, once you take into the account the tax adjustment and long summer vacations, are comparable to academic salaries. I'm told there is a link to a paper by an economics professor in the online version, which I will look up. But as someone who is a college professor, and who is married to someone who used to work in an international organization with similar salary structures and arrangements and who, hence, paid very close attention to comparative salary issues - well, at least if you were not an American and not subject to tax on your salary, it was a very favorable deal. The tax break was amazing for non-Americans. I simply don't understand what Mallaby is suggesting here - it is not our experience at all. As for summer vacations - every dean and professor I know understand perfectly that summer vacation is simply the research semester, it's not vacation, at least if you plan on getting tenure, getting a promotion, getting a raise. It's a 12 month job like any other. And now I have to get back to it.)

(pps. Or consider this short op ed by AEI resident scholar Desmond Lachman, here. It argues for a World Bank that gives up the middle income lending function altogether, along with the proliferating mandates at the Bank that increase its unaccountability.)

Happy mother's day

We are off to see The Tempest at the Folger Theater here in DC, which is perhaps an odd choice of play for mother's day, seeing as how Miranda is a conspicuously motherless child.

***
Excellent production at the Folger, really lovely.

As I sat watching, I thought about how I might stage it. I realize every conceivably goofy rendering of Shakespeare has been done, and done to death ... still, I wondered about perhaps a cyberpunk, neuromanceresque version of The Tempest, in which Ariel sits above the stage as a techno-nerd girl-geek playing at videogames, surrounded by monitors and keyboards and techno-cyber-gizmos, but also pizza boxes and Pepsi and Doritos, pulling all the strings at Prospero's command ("You can't stop the signal, no one can stop the signal."). All the humming and singing and songs done with synthesizers from her work station.

As for Caliban, the prototypical monstor is wired up as a sort of cyber monster/Frankenstein, his head shaved and marked off in grids and electrodes fastened and unfastened to his brain, ordered about by Prospero with a control pad strapped to his wrist. And the visions that Ariel gives to the Duke, et al., all done with holograms. Give a new twist on the dream and great globe and insubstantiality riffs. The Tempest as neural net?

I said Caliban as monster/Frankenstein. Yes, but also as something resembling Gollum in the Lord of the Rings movies, in both appearance and physicality, played by someone very wiry and young. Or for a notably prurient possibility, with provocation appeal and many, many YouTube possibilities, perhaps a very skinny girl with shaved head, wearing only a Gollum-style loincloth ... okay, okay, I hear you, too distracting.

Any possibilities here? Probably already been done, actually, and I'm just chanelling it.

Richard Hopton's History of Duelling reviewed by Jon Latimer in the TLS

I am eager to read this book, Richard Hopton, Pistols at Dawn: A History of Duelling (Portrait 2007, and it doesn't seem to be on Amazon US), particularly on account of the lovely review essay by Jon Latimer in the May 11, 2007 Times Literary Supplement. It is not online, but will eventually show up in the subscriber only archive.

Duelling interests me for a several reasons.

One is that my childhood sport was fencing - I read the Three Musketeers as a boy and discovered that the college town where I spent my cavity-prone years, Claremont, just outside Los Angeles, had in residence a world class fencer and fencing coach, Francis Zold, a Hungarian who had been on the Hungarian Olympic team before the Second World War. He had gone on to become a professor of intellectual property and copyright at the University of Budapest. He and his family fled Hungary in 1956, and settled in Claremont. Discovering that a specialist in Hungarian copyright law and whose English was so-s0 - although, like so many Hungarians, he was in fact a gifted linguist and was fluent in at least five languages - was not in great academic demand, he went back to coaching fencing at various southern California colleges, including Pomona College.

He also took on high school students in a local community club. He was one of the greatest teachers I have had in any field - others include the UCLA professors Rogers Albritton, Philippa Foot, Herbert Morris, and David Rapoport - and on account of spending all my time fencing, I didn't learn many other sports. At one point, he wanted me to come spend time in the afternoons with the Pomona College team; I was a freshman in high school, and this entailed asking permission of the fearsome head football coach and PE teacher, a huge bear of a man who would tell you to drop and do 50 pushups without thinking twice. I very shyly explained what my fencing coach had in mind - the football coach broke in and said, you are a student of Francis Zold? I said, yes, not sure what that meant. He said, Master Zold is one of the great coaches in this country, and whatever he wants, you do. Now get out and make sure you make him proud. Not being especially good, I didn't, although I tried hard.

Later on, when I finally got around to college at UCLA - I was 24 or 25 years old, I had spent several years working blue collar jobs in LA and a couple of years as a Mormon missionary in Peru - I joined the UCLA fencing squad. It didn't last long after I joined and was cut in a budgetary overhaul - however, I met some genuinely wonderful people there, in particular the LA television writer, Tim Maile, who is a successful writer of teen shows, including dreaming up the Lizzie McGuire Show. Also I received a UCLA letter and handsome leather letterman's jacket, which never failed to impress girls until they found out the sport involved.

All that by way of saying that fencers are often interested in subjects like duelling. I have a second, quite different reason for interest in the subject, however.

In Just and Unjust Wars, Michael Walzer raises the question of wars - fighting, killing - that are not unjust. He offers examples of aristocratic young men who fight each other as a grand game, by choice, perhaps as a rite of passage, and says that a death in such circumstances of choice and autonomy is not unjust. It is a very careful locution, because it qualifies the judgment in two ways. One is that although the death may not be contrary to justice, it might be contrary to other moral virtues and rules - such as not killing or being killed in what is merely a game - a Catholic theologian, for example, would surely reject the notion of "autonomy" here. That is to separate justice from other virtues. The second qualification, however, is that Walzer does not say that such a death is just - merely that it is not contrary to justice, which is a quite different thing.

Duelling, whether with swords or pistols, personalizes the game. It also puts honor, or some notion of it, ahead of justice and other virtues. It is, as the review notes, a practice that in Western societies has long been forbidden by authorities, especially in the military, apparently largely on grounds that it weakened the fighting ranks. At any rate, duelling is one of those social practices that tests the limits of how far we are willing to admit of autonomy.

La Marseillaise is stuck in my head!

After listening to the YouTube video of the crowd singing La Marseillaise in Paris at the celebration of Sarkozy's victory, it is now stuck in my head. I have been humming it all day long. I even played it on my cello when I should have been playing Buxtehude. What to do?! I listened to the San Francisco acid rock album by the Jefferson Starship, Blows Against the Empire at the gym, but even the Jerry Garcia lead, sample here on Starship, was no match for La Marseillaise.

(Per request of commenter, I've linked above to one of the several YouTube videos.)

The Singing Professor, or, To the Barricades!

A play in indefinite acts.

Scene: Dinner, lovely DC spring evening, family - Jean-Marie, Ken, Renee, Uncle Jack - eating on the screened in porch. Twilight. All is peaceful with the world.

Jean-Marie (brightly): The salmon is great.

Ken: humming distractedly

Jean-Marie: Renee got a 97% on her earth science test.

Ken: humming distractedly

Jean-Marie: She did okay on the math test.

Ken: humming distractedly

Jean-Marie: But she got a C on the passive voice Latin test

Ken: humming distractedly

Jean-Marie: And she'll probably be thrown out of school.

Ken: humming distractedly

Jean-Marie: Tuition just went up to $250,000 a year. No senior got into college. And Renee's 8th grade ethics class has been mobilized as part of the National Guard and is being sent to do community service in Ira - will you stop humming that damn song! This isn't Casablanca!

Curtain, followed by terrible commotion off-stage. Unclear whether Act II will be played. Stay tuned.

***
The salmon is a variant of a recipe seen on the Rachel Ray show on the food channel, featuring salmon baked in a mixture of half cup rum, a tablespoon or so of mayonnaise, lemon juice, balsamic vinegar splash, splash of molassas, a couple of tablespoons of yellow Thai curry sauce, much garlic and much ginger, both best fresh. Cover salmon with sauce top and bottom. Very hot oven - 425 degrees F, about twenty minutes for a pound of salmon. It's Rachel Ray - which is to say, Not Low Cal.

Bush administration weighs in on Wolfowitz and World Bank, better late than never, I guess, and thoughts about Bank anti-poverty policy

Not being in any highfalutin' political loops about the Bank and Wolfowitz, either international circles or in DC, I have been puzzled as to why the Bush administration has been so lackadaisical in defending Wolfowitz. The occasional word from Bush, but really very little said. Sometimes I have even far-fetchedly wondered whether the Bush administration's secret plan was to appoint but Tony Blair. In any case, the message taken away in foreign capitals from the lack of visible support surely would have to be that the administration would not care one way or the other what happened, at least so long as the US retained the informal right to appoint the Bank head. The view from Europe is summed up in this Financial Times editorial, here; it is essentially a rebuttal to the Wall Street Journal's editorials of the past few days.

According to the US papers today, however, the Bush administration has belatedly started to respond and defend Wolfowitz, including State and Treasury. The Wall Street Journal news pages have a good summary, behind the subscriber wall, Thursday, May 10, 2007, A6, Neil King Jr. and Greg Hitt, "Rice Launches Wolfowitz Defense." The Washington Post has an article in the business section today, John Ward Anderson and Peter S. Goodman, "Europeans Wince, Wait for Wolfowitz Saga to End," Thursday, May 10, 2007, D1, here. The WP piece seems to have been written and researched almost entirely from the European perspective, and says very little about US lobbying efforts on Wolfowitz's behalf.

The Washington Post also has a personality profile piece that finally shows a little sympathy for the woman who has really paid the career price for this, Shaha Riza. I have never met her, know nothing about her apart from what is in the papers and the blogs. I have to say, though, a surprising number of the comments posted on Bank-staff-related blogs show an utter viciousness toward her; some of these folks appear to be not such nice people, at least when concealed behind the internet veil of anonymity. (Washington Post article, here.) Indeed, to judge only by comments on the Bank-staff blogs, one might think that this campaign is essentially about getting her, even more than getting Wolfowitz.

I am also pleased to note that my Financial Times comment appeared in Arabic today, May 9/10, 2007, in the respected Beiruit newspaper An-Nahar, for those - alas, not I - who read Arabic, here, or so I am told. I've also been contacted by Le Monde about it appearing in French, but haven't seen it so far. But of course it is a modest piece, reflecting a corporate governance lawyer's concerns about what the publicly released documents show about the process and questions of fiduciary duty.

There are larger issues of policy about the Bank, obviously. Joseph Stiglitz raised some of them in his Financial Times comment, also May 7, 2007. I myself have views on some of them, although I have kept them quite separate from the narrow, lawyerly issues of fiduciary duty and corporate governance in the Wolfowitz affair. I do have another life in development finance, however. Curiously, because most of what I do pro bono as a corporate finance professor has to do with a nonprofit development fund, a nonprofit venture fund that engages primarily in lending and investment, I have a certain appreciation for what the Bank has traditionally used as its development strategy - a combination of subsidized loans and technical assistance, because that is what the organization I work with does.

One thing is clear from that kind of activity - if you are a nonprofit with a mission, but a mission driven nonprofit that nonetheless acts like a venture fund or bank, then you have to be very careful in how you target your loans and investments, because, presumably, it matters whether you get repaid or not. That is absolutely true in the case of my organization - if we lose the money, eventually donors will get tired of this and stop funding us and we are out of business. As a consequence, the places and circumstances where we can make investments are limited - places so poor that projects will not manage to repay loans don't work, nor do places where governance and rule of law is so poor that we could not hope to enforce our legal contractual rights. That leaves a circumscribed range of countries and societies in which it fits our mission to lend, but where we have a reasonable chance of repayment on a sustainable (albeit subsidized) business model.

In the case of the World Bank, something akin to the mission/lending tensions also applies - although the prospects of it going broke because its funders give up on it are vanishingly remote. The safest thing to do is borrow on the capital markets at a discount, combine this with various additional funds from donor countries, but then lend to places where you are likely to get repaid. You lend at a subsidized rate, but you don't really risk massive default. That leads you, however, not to the poorest countries, for which loans don't make sense, but to middle income countries.

The problem with middle income countries is that although they fit the business model, they don't really fit the mission of getting to really poor people. The proof, ironically, that they do fit the business model is that these countries can today tap the private capital markets. Sure, of course anyone who can get cheaper capital through the Bank will do so - in my nonprofit venture fund, we constantly get proposals from businesses that don't fit our mission profile but naturally like the idea of subsidized loans well below local rates, who wouldn't? But as I recall from Adam Lerrick, the Bank's lending in the past five years has been something like 90% to a group of 27 middle income countries, and that Bank lending was well under 1% of the total private capital market capital tapped by those countries. The Bank's lending was entirely superfluous to what the private markets were already doing - safe from a business perspective, but largely pointless from a mission perspective.

I have long accepted the Allan H. Meltzer proposals (quick summary 2 page PDF, here) - long rejected, naturally, at the Bank, since its professional structure is largely built around the Bank as a lending institution to stand-in for private capital markets - for the Bank to focus on the world's poorest people and turn itself into a grant making/technical assistance institution. If you do that, however, you don't need much of the existing machinery or, really, highly paid, highly skilled financial professionals whose task it is to manage the interaction of the Bank with its borrowings on the capital markets. You more likely need more locally focused people who can operate much closer to the "retail" level of economic development. Wrong structure, wrong set of staff, wrong focus. To be fair, the Bank has developed the world's leading expertise in poverty reduction studies - what works, what doesn't - and the world's greatest expertise in technical assistance. Compared, for example, with the corresponding UN programs, the Bank is the most important repository of knowledge, best practices, etc. - despite my criticisms here, I do acknowledge that and the accumulated intellectual capital it represents. But that is, curiously, still adjunct to its now largely overtaken financial and banking mission.

(George Will summarizes some of this thinking, largely drawn from Meltzer and Adam Lerrick in today's Washington Post, here. I think the Bank's intellectual capital in the areas of technical assistance, best practices, etc., is considerably more robust than Will and others who don't work in the area would admit.)

In addition to the Meltzer proposals to convert to grant making, rather than middle income lending, there is a second policy issue at the heart of the Bank professionals' objections to Wolfowitz (apart from everything else, I mean). That is the question of whether the function of the Bank, the measure of the Bank's success, is to shovel money out the door in a kind of European style welfare program gone global - essentially, an attempt at global income redistribution. The alternative is to focus on governance, and condition aid on governance reforms, as Wolfowitz and the American government has generally favored, in which aid is seen as an investment in the future, including governance reform, anti-corruption, all the rest, rather than simply income-shifting today, and in particular as an investment that draws in private direct foreign investment which, in the case of those countries which have lifted themselves out of poverty, has been the economic engine. (I discuss some of those questions tangentially, in a discussion about the relationship between microfinance and globalization, free download pdf at SSRN, here.)

It seems pretty obvious that the Europeans and the Americans fundamentally differ on the approach to global poverty. The same debate figured in the 2005 UN reform arguments over the Millennium Development Goals, where, for the UN bureaucracy and the Europeans, the issue was simply more and more money. Two different approaches - yet where there is no clear evidence that the World Bank-European approach has made any positive long term, generational difference to world poverty, and, to be fair, just as there is no evidence that the American preference for governance reform in fact makes any difference over the generational long term. No one, frankly, has any evidence-based method for international public institution intervention for poverty reduction.

In that case, perhaps the best thing would be to create two different institutions and let them compete in the global poverty market and see which works better. The Europeans can have the Bank, and pay for its goldplated operations; the Americans could perhaps ramp up the Millennium Development Corporation and put the money otherwise devoted to the Bank there. In a generation, maybe it will start to become clearer which approach works better - although, to be sure, as the parties become invested in their approaches, it is unlikely that either side would admit of anything.

But despite the virtues of a policy competition in something as unknown and fraught with uncertainty as this, the exhausted Bush administration, and future American administrations, are unlikely to try anything so ambitious. The reason is that the Bank is no longer really about poverty reduction for the US government. It is, instead, a place for the Americans, and for future administrations, to demonstrate their multilateral sincerity and bona fides. Serious intellectual challenge to the policy model takes a backseat far behind the need to show that the US is a team player, even if the team's policies have little to show in the past and little reason to predict that they will pay off in the future. The US is likely to seek, for a while to come, venues in which it can show itself to be a good, meek multilateralist.

The price paid in a healthy competition over effective policy on global poverty reduction - where the questions are genuinely open on both sides, and maybe what is needed is something altogether different from either one - is unfortunately considered collateral damage alongside the short term political need to demonstrate multilateral solidarity in an arena in which the costs of multilateralism - the costs of the failures of any particular anti-poverty strategy - are paid by neither the Europeans nor the Americans.

(ps, May 11, 2007. Marcela Sanchez, in the Washington Post, here, on Latin American countries, and not only those leaning Chavist, moving away from the IMF and the World Bank in favor of other sources of capital.)

PPS, May 11, 2007. Steven Weisman's New York Times account of current pressures by the Europeans to make it impossible for Wolfowitz to stay, behind the subscriber wall, but May 11, 2007, A14, notes the threat by European governments to reduce their contributions to the Bank if Wolfowitz stays. One might have thought this ... unilateralist. In any case, one wonders what they might do with the funds instead. Weisman says they would possibly contribute them to European aid agencies, and I'm sure that's so.

Why that would be such a terrible thing, however, I don't know. They would thereby shift funds from the World Bank to European aid agencies that would do approximately the same thing with the funds - although likely those agencies would put much less of that money into middle income country lending that is good for the Bank's balance sheet but not very relevant to economic development, particularly not of the world's very poor people. And my experience of the European aid agencies is that they are closer to the ideal I mention above. In my experience, they are less goldplated in their operations because they are not paying wages tied to the presumed skill sets of knowing how to tap into the private capital markets. They tend to be more efficient, much closer to what is going on at ground level, and define ground level much more as the world's poorest people.

Again, I emphasize, as I said above, I do respect the Bank as a repository of expertise on poverty reduction even if I don't think its core lending business makes sense anymore. Still, when it comes to delivery, I think the European country aid agencies - the Nordic countries, the Dutch, the Swiss, especially, do the best job I have seen of any governmental or intergovernmental agencies. The British are a mixture of the worst of the Americans and the Europeans - European in the sense of proposing to spend lots of money and measure success by spending lots of money, and American in the sense of not actually doing it - very Blairite, in the sense of the faux-solidarity Blair, really wonderful, Churchillian speeches by the Claire Shorts of this world, but then no money and no real follow through. I prefer the stolid, stodgier, but frankly much more stick-to-it Nordics - phlegmatic but dogged.

(US AID, it goes without saying, remains the bureaucratic nightmare it has always been - a trainwreck of an aid agency. Anyone who gets involved with US AID gradually shifts their orientation away from those they are supposed to be aiding and towards the worship of the bureaucracy of Washington. US AID needs to abolished and the US start over from scrach. But reforming the US delivery of poverty reduction aid is a whole other story.)

Far from being a threat, for European governments to shift financing from the Bank to their own aid agencies seems like a good idea in any case. I don't really see the downside, except, of course, if you're the Bank.

The US under the next administration as 'meek multilateralist'?

This is from the conclusion of a new essay - remarks, really, prepared for a conference at which I was unfortunately unable to appear, and then revised for a seminar on human rights at NYU - appearing in Fordham International Law Review one of these days. It will be substantially edited from this form, but the point is still basically the same - the US in a new administration as 'meek multilateralist' - and why that is not an unalloyed good, even for those who would prefer the US to loom less large upon the world.

***
The conventional wisdom seems to be that the US has quite exhausted itself with war – perhaps not unlike its exhaustion with war following Vietnam. Not everyone shares that view, but conventional wisdom says no more wars for a good while.[1] From the European point of view, that does not make the US security guarantee any less good – better even – because for Europe, US counterterrorism wars simply stir up Islamist terrorists in its own cities, places that can’t be attacked by the 82nd Airborne. What it most likely leads to is a return to the early Clinton era, perhaps with an added air, in a Democratic administration at least, of contrition for the wicked Bush years, and expressed as ‘meek multilateralism’.

But recall what that meek multilateralism served in those early Clinton years. It was a get along, go along foreign policy not really interested in anything foreign other than trade. It was willing, most of the time, to say all the right multilateralist things. It was always willing to feel everyone’s pain for anything out in the world. But it was much less willing to act. It wanted to be multilateralist precisely in order (partly, but only partly, through its lip service compliance with all those international norms), to try and be just another power in the multilateral gaggle of nation-states, whose compliance is partly lip service, too.

Being 'just one of the guys', so to speak, doesn’t work for the United States, of course, and it doesn’t work for the rest of the world either. What, rely, really rely, on the promise of collective security through the UN? Who are we kidding? Within a few years the Clinton administration was in a different mode – but it wasn’t willingly and it wasn’t for lack of desire to loom small on the world stage. We therefore face, under either a Democratic or Republican administration, the possibility of a return to a form of meek multilateralism by the United States. It might actually be more compliant with international law norms. It might be much more respectful of international law as the international law professors see it. It would almost certainly be more soothing to the sensitivities, so offended by the Bush administration, of the international community. One might wish that the US would essentially submit its power to supervision and control by its allies and friends and take instruction from them, but that seems unlikely. (One reason is that although the United States is fully capable of moral and legal mistakes, submitting one’s power to the supervision even of one’s friends invites – quite apart from its preposterousness from a strictly realist standpoint – the “give a mouse a cookie” problem, the inevitable tendency to demand more and more of the superpower as a condition of continuing to like it.)[2]

The actual choice is much more likely this. On the one hand, a meek multilateralism that masks a deep desire to ignore, at least for some quite possibly critical years, the responsibilities and obligations of the superpower, in order not to be seen to be exercising its privileges, and also frankly to lick its wounds. Or, on the other hand, the robust assertion of American exceptionalism, even to the point of special privilege, arrogant as that always in fact is, and infuriating to the rest of the US’s friends and allies, as that always is, and less compliant and respectful of others’ views of international law and the international system, such as it is.

The latter choice may not rise, in a new administration, to the Bush administration’s specially calibrated levels of bellicosity, but it would not be a return to the early 1990s, either. Think carefully upon which you prefer.

Notes:

[1] For example, Ivo Daalder and Robert Kagan, two prominent foreign policy analysts of the center left and right, respectively, are releasing a joint paper arguing that the United States will be no less bellicose in a new administration than under Bush. See Ivo Daalder and Robert Kagan, “America and the Use of Force,” Stanley Foundation Project, Bridging the Foreign Policy Divide, forthcoming 2007.

[2] I leave aside here, as too large a topic for these remarks, the currently popular idea of a “caucus of the democracies” that might provide a robust yet less evidently insincere forum in which the United States could argue its views, find greater grounds of agreement, and generally have a place among those who share its fundamental values against which to check its own behavior and achieve some agreement and coordination with others.

***
Let me add this column from Mark Steyn.
***
Fortress America's gate is open

(http://www.suntimes.com/news/steyn/382787,CST-EDT-steyn13.article)
May 13, 2007
Chicago Suntimes

MARK STEYN

Most terrorists seem like bumbling losers if they're caught before the act: That's certainly true of the Fort Dix jihadists who took their terrorist training DVD to the local audio store to be copied. It was also true of the Islamists arrested in Toronto last year for plotting to behead the prime minister, one of whose cell members had a bride who wanted him to sign a prenup committing him to jihad. The Heathrow plotters arrested while planning to blow up U.S.-bound airliners included a Muslim convert who'd started out as the son of a British Conservative Party official with a P. G. Wodehouse double-barreled name and a sister who was a Victoria's Secret model and ex-wife of tennis champ Yanick Noah.

But then Mohammed Atta and the 9/11 gang would have seemed pretty funny if you'd run into them in that lap-dance club they went to before the big day where the girls remembered them only as very small tippers. Most terrorists are jokes until the bomb goes off.

So, when we're fortunate enough to catch them in advance, it's worth pausing to consider what they tell us about the broader threat we face. According to genius New York Times headline writers, "Religion Guided Three Held In Fort Dix Plot." You don't say. Any religion in particular?

Well, the trio were Muslims, but Albanian Muslims -- i.e., they weren't Arabs and didn't have names like Mohammed and Abdullah (though their accomplices did). Even if Amer- ica were minded to profile, it's harder to profile against chaps with names like "Shain Duka" (Fort Dix) or "Rich- ard Reid" (the shoebomber) or "Jer- maine Lindsay" (a July 7 Tube bomb- er) or "Muriel Degauque" (a Belgian lady who self-detonated in a suicide attack on U.S. forces in Iraq) or "Jack Roche" (an Australian arrested for plotting to blow up the Israeli Embassy in Canberra).

Second, the young Duka brothers are "radical Muslim" sons in a family of otherwise "moderate Muslim" oldsters. That, too, fits a pattern of de-assimilation, of young Western Muslims far more implacable and hostile than their parents and grandparents. The London bombers were British subjects born and bred, radicalized in the vacuum of contemporary multiculturalism. One of the Toronto plotters had a father-in-law who was the pharmacist at the Princess Patricia's Canadian Light Infantry base. The Princess Pats have done sterling work in Afghanistan, and pop supports their mission. But his daughter doesn't, and she named his grandchild after a Chechen terrorist killed by the Russians.

Third, what then radicalized so many Western Muslims? Answer: in many cases, the Balkans. When Yugoslavia collapsed 15 years ago, Jacques Poos told the Americans to butt out: "The hour of Europe has come!" he declared confidently. Poos was the foreign minister of Luxembourg, a country as big as your hot tub, but he chanced to be holding the European Union's rotating "presidency" at the time and, as it happened, the Americans were very happy to butt out. "We don't have a dog in this fight," said then-secretary of state, James Baker.

Well, the hour of Europe came and went, and a couple of hundred thousand corpses later the EU was only too happy for Americans to butt back in again. So NATO bombed Christian Serbs in defense of Albanian Muslims, and a fat lot of good it did if the Duka brothers are any indication.
In theory, Baker was right. But out there in the Balkans, if you're one of the dogs in the fight, great-power evenhandedness can seem pretty one-handed by the time you hear about it. Don't take my word for it. Here's Osama bin Laden: "The British are responsible for destroying the Caliphate system. They are the ones who created the Palestinian problem. They are the ones who created the Kashmiri problem. They are the ones who put the arms embargo on the Muslims of Bosnia so that 2 million Muslims were killed."

Whoa, hold up there: How come a list of imperial interventions wound up with a bit of non-imperial non-intervention? Because, for serious nations, even not taking sides is seen as, in effect, taking sides. What was the single biggest factor in the radicalization of British Muslims? Omar Sheikh, convicted in Karachi for the kidnapping and beheading of Daniel Pearl, is British -- a Westernized non-observant chess-playing pop-listening beer-drinking London School of Economics student, until he was fired up by the massacres of Bosnian Muslims. And, while Europe dithered as the mountain of corpses piled up, Saudi money poured in, transforming the relatively mild Balkan Islam into something far more virulent. Look at the change in Muslim architecture in the region over the last 15 years: They build Wahhabist mosques now. Unlike the State Department complaceniks, the Islamists understand there is no stability.

Tough, you say. So what? Washington still has no dog in these fights. It's time to hunker down in Fortress America. Which brings me to the fourth lesson: What fortress? The three Duka brothers were (if you'll forgive the expression) illegal immigrants. They're not meant to be here. Yet they graduated from a New Jersey high school and they operated two roofing companies and a pizzeria. Think of how often you have to produce your driver's license or Social Security number. But, five years after 9/11, this is still one of the easiest countries in the world in which to establish a functioning but fraudulent identity.

Consider, for example, the post-9/11 ritual of airline security. You have to produce government-issued picture ID to the TSA official. Does that make you feel safer? On that Tuesday morning in September, four of the killers got on board by using picture ID they'd acquired through the "undocumented worker" network in Falls Church, Va. Half the jurisdictions in the United States issue picture ID to people who shouldn't even be in the country, and they issue it as a matter of policy. The Fort Dix boys were pulled over for 19 traffic violations, but because they were in "sanctuary cities," any cop who suspected they were illegals was unable to report them to immigration authorities. Again, as a matter of policy.

On one hand, America creates a vast federal security bureaucracy to prevent another 9/11. On the other hand, American politicians and bureaucrats create a parallel system of education and welfare and health care entitlements, main- taining and expanding a vast network of fraudulent identity that cor- rupts the integrity of almost all state databases. And though it played a part in the killing of 3,000 Americans, leaders of both parties insist nothing can be done to stop it. All we can do is give the Duka brothers "a fast track to citizenship."

The Iranians already are operating in South America's Tri-Border area. Is it the nothing-can-be-done crowd's assumption that the fellows who run armies of the "undocumented" from Mexico into America are just kindhearted human smugglers who'd have nothing to do with jihad even if the price was right? If you don't have borders, you won't have a nation -- and you may find "the jobs Americans won't do" covers a multitude of sins.

Mark Drumbl's new book, Atrocity, Punishment, and International Criminal Law

Kevin Jon Heller, over here at Opinio Juris, has a capsule summary of a new book that I look forward to reading, Mark Drumbl's Atrocity, Punishment, and International Criminal Law, out from Cambridge UP. Professor Drumbl is someone for whom I have considerable respect, and I am quite certain this book merits close attention. From Opinio Juris:

The book defends two interrelated claims: (1) there is a fundamental difference between the “extraordinary” crimes that are punished at the international level (genocide, crimes against humanity, etc.) and the “ordinary” crimes that are punished at the domestic level (murder, rape, etc.); but (2) international law nevertheless assumes that extraordinary crimes can be effectively prosecuted through the same institutional structures used for ordinary crimes. As Mark writes, "[i]nternational criminal justice largely is operationalized through criminal tribunals. Courtrooms have gained ascendancy through adversarial third-party adjudication, conducted in judicialized settings, and premised on a construction of the individual as the central unit of action." Mark rejects this “liberal-legal” model of international criminal law; in his view –- and this is the central thesis of his book –- "the preference for criminalization has prompted a shortfall with regard to the consideration and deployment of other legal, regulatory, and transformative mechanisms in the quest for justice," such as truth commissions, legislative reparations, and (what will no doubt be the most controversial aspect of the book) collective civil sanctions.

Mark knows that I do not agree with everything in the book. That said, Atrocity, Punishment, and International Law is a must-read for all international law scholars and practitioners. International criminal tribunals have reproduced almost virally over the past two decades, from the ICTY to the ICC to the various hybrid courts. It is thus critical to question, as Mark does, whether those institutions are capable of fulfilling their central purpose –- putting an end to impunity. Such skepticism is largely absent from international law debates. I hope that Mark's book will make it less so.

C'est l'identite de la France, c'est l'histoire de la France

La déclaration de Nicolas Sarkozy

lefigaro.fr
Dimanche 6 mai, 20h30, salle Gaveau (Paris).

Nicolas Sarkozy s'adresse à ses partisans pour la première fois depuis son élection. Il confesse son "immense émotion".

"Mes chers compatriotes. En m'adressant à vous ce soir et en ce moment qui est, chacun le comprend, exceptionnel dans la vie d'un homme, je ressens une immense, une sincère et profonde émotion. J'éprouve depuis mon plus jeune âge la fierté indicible d'appartenir à une grande, à une vieille, à une belle nation, la France. J'aime la France comme on aime un être cher qui m'a tout donné, maintenant c'est à mon tour de rendre à la France ce que la France m'a donné.

Ce soir, ma pensée va aux millions de Français qui aujourd'hui m'ont témoigné leur confiance. Je veux leur dire qu'ils m'ont fait le plus grand honneur qui soit, à mes yeux, en me jugeant digne de présider aux destinées de la France. Ma pensée va à tout ceux qui m'ont accompagné dans cette campagne. Je veux leur dire ma gratitude, je veux leur dire mon affection. Je veux le dire d'abord à ma famille, je veux le dire à mes amis, je veux le dire mes partisans, je veux le dire à tout ceux qui m'ont soutenu.

Et ma pensée va à Mme Royal. Je veux lui dire que j'ai du respect pour elle et pour ses idées dans lesquelles tant de Français se sont reconnus. Respecter Mme Royal, c'est respecter les millions de Français qui ont voté pour elle.

Le président de la République doit aimer tous les Français. Ma pensée va donc à tous les Français qui n'ont pas voté pour moi. Je veux leur dire que par delà le combat politique, par delà les divergences d'opinion, il n'y a pour moi qu'une seule France. Je veux leur dire que je serai le président de tous les Français, que je parlerai pour chacun d'entre eux. Je veux leur dire que ce soir, ce n'est pas la victoire d'une France contre une autre. Il n'y a pour moi ce soir qu'une seule victoire: celle de la démocratie, celle des valeurs qui nous unissent, celle de l'idéal qui nous rassemble.

Ma priorité sera de tout mettre en oeuvre pour que les Français aient toujours envie de se parler, de se comprendre, de travailler ensemble. Le peuple français s'est exprimé. Il a choisi de rompre. De rompre avec les idées les habitudes et les comportements du passé. Je vais donc réhabiliter le travail, l'autorité, la morale, le respect. Je vais remettre à l'honneur la nation et l'identité nationale, je vais rendre aux Français la fierté de la France, je vais en finir avec la repentance qui est une forme de haine de soi et la concurrence des mémoires qui nourrit la haine des autres.

Le peuple français a choisi le changement. Ce changement je le mettrai en oeuvre parce que c'est le mandat que j'ai reçu du peuple et parce que la France en a besoin. Mais je le ferai avec tous les Français. Je le ferai dans un esprit d'union et dans un esprit de fraternité, je le ferai sans que personne n'ait le sentiment d'être exclu, d'être laissé pour compte. Je le ferai avec la volonté que chacun puisse trouver sa place dans notre République, que chacun s'y sente reconnu, s'y sente respecté dans sa dignité de citoyen et dans sa dignité d'homme. Tous ceux que la vie a blessés, ceux que la vie a usés doivent savoir qu'ils ne seront pas abandonnés qu'ils seront aidés, qu'ils seront secourus. Ceux qui ont le sentiment que quoi qu'ils fassent, ils ne pourront pas s'en sortir, doivent être sûrs qu'ils ne seront pas laissés de côté et qu'ils auront les mêmes chances que les autres.

J'appelle tous les Français par delà leur parti, leurs croyances, leurs origines à s'unir à moi pour que la France se remettre en mouvement. J'appelle chacun à ne pas se laisser enfermer dans l'intolérance et dans le sectarisme, mais à s'ouvrir aux autres, à ceux qui ont des idées différentes, à ceux qui ont d'autres convictions.

Je veux lancer un appel à nos partenaires européens auxquels notre destin est profondément lié pour leur dire que toute ma vie j'ai été européen, que je crois profondément, que je crois sincèrement en la construction européenne et que ce soir, la France est de retour en Europe. Je conjure nos partenaires européens d'entendre la voix des peuples qui veulent être protégés. Je conjure nos partenaires européens de ne pas restés sourds à la colère des peuples qui perçoivent l'Union européenne, non comme une protection, mais comme le cheval de Troie de toutes les menaces que portent en elles les transformations du monde.

Je veux lancer un appel à nos amis américains pour leur dire qu'ils peuvent compter sur notre amitié renforcée dans les tragédies de l'histoire que nous avons affrontées ensemble. Je veux leur dire que la France sera toujours à leurs côtés quand ils auront besoin d'elle mais je veux leur dire aussi que l'amitié, c'est accepter que ses amis puissent penser différemment. Et qu'une grande nation, comme les Etats Unis a le devoir de ne pas faire obstacle à la lutte contre le réchauffement climatique, mais au contraire de prendre la tête de ce combat, parce que ce qui est en jeu, c'est le sort de l'humanité toute entière. La France fera de ce combat son premier combat.

Je veux lancer un appel à tous les peuples de la Méditerranée pour leur dire que c'est en Méditerranée que tout va se jouer, qu'il nous faut surmonter toutes les haines pour laisser la place à un grand rêve de paix et à un grand rêve de civilisation. Je veux leur dire que le temps est venu de bâtir ensemble une Union méditerranéenne qui sera un trait d'union entre l'Europe et l'Afrique. Ce qui a été fait pour l'union de l'Europe, il y a 60 ans, nous allons le faire aujourd'hui pour l'union de la Méditerranée.

Je veux lancer un appel à tous les Africains, un appel fraternel pour dire à l'Afrique que nous voulons l'aider à vaincre la maladie, à vaincre la famine, à vaincre la pauvreté, à vivre en paix. Je veux leur dire que nous allons décider ensemble d'une politique d'immigration maîtrisée et d'une politique de développement ambitieuse.

Je veux lancer un appel à tous ceux qui dans le monde croient aux valeurs de la tolérance, de la liberté, de la démocratie, de l'humanisme, à tous ceux qui sont persécutés par les tyrannies et les dictatures. Je veux dire à tous les enfants à travers le monde, à toutes les femmes martyrisées dans le monde, je veux leur dire que la fierté, le devoir de la France sera d'être à leurs côtés.

La France sera aux côtés des infirmières libyennes (bulgares, ndlr) enfermées depuis huit ans, la France n'abandonnera pas Ingrid Betancourt, la France n'abandonnera pas les femmes qu'on condamne à la burqa, la France n'abandonnera pas les femmes qui n'ont pas la liberté. La France sera du côté des opprimés du monde. C'est le message de la France, c'est l'identité de la France, c'est l'histoire de la France.

Mes chers compatriotes, nous allons écrire ensemble une nouvelle page de notre histoire. Cette page de notre histoire, mes chers compatriotes, je suis sûr qu'elle sera grande, qu'elle sera belle. Et du fond du coeur, je veux vous le dire, avec la sincérité la plus totale qui est la mienne au moment où je vous parle: Vive la République et vive la France".

(Update, Volokh Conspiracy has some translation, plus a YouTube link to the crowd singing La Marsellaise. VC notes that the second to last paragraph, in italics, was added in the delivered version. Actually, I like this YouTube version better.)

(I also just want to note for the record that I was honored a few weeks ago to be contacted by a researcher in France looking for a rare English translation of the wartime poetry of the great French poet, Rene Char. The English translation, Leaves of Hypnos, translated by the poet Cid Corman, appeared in 1973, but has long been out of print. I was pleased to be able to supply the translations from my copy of the book for an English language version of a DVD from the ministry of culture on Char's poetry. And to think she contacted me because she had noticed a post about Rene Char on this blog!)

(While I am at it, I recommend this article in Commentary by Michael Gurfinkiel, "Can France Be Saved?", here. And I recommend anything written by that fine, extraordinarily smart French political commentator, Dominique Moisi, even when - or better said, especially when - I disagree with him. Writing in the Guardian, here, on the Sarkozy election.)

A few more Wolfowitz and World Bank items

Well, it is not exactly news now that the World Bank board committee report is out. I don't have much more to add.

Have I learned anything out of this process? One is that journalists and many other people opine freely on factual issues in which it seems doubtful that they have read the underlying documents. I have read the underlying documentary record, at least the public parts, and I am dismayed to conclude that, whether one thinks Wolfowitz is guilty as charged or not, few of the people writing the accounts that the rest of us read have actually read that record. The cautious journalists frame their reporting in ways that suggest, but don't actually affirm, that the reporter has read the stuff versus relying on someone else's account of it; the less cautious and many of the commentators simply use a Duke lacrosse-lite approach and go with what has come to be known as "narrative reporting" - frame the narrative and then select what you report in order to confirm it, and don't ask skeptical questions that might force you to have to think again.

Obviously I'm not one of the great pooh-bahs in all this - Mark Malloch Brown, Joseph Stiglitz, all the rest - the guys who seem to imagine themselves as the Big Men (African tribal style) of our planet. I'm just a humble lawyer. But I am one who is fairly good at actually, you know, reading things. I have no idea what plots and machinations and political deals lie behind all of the ethics charges. (The Wall Street Journal editorial page, here, Wednesday, May 9, 2007, suggests some possibilities.) I am reasonably experienced at going through piles of documents and reports and testimony and examining whether breaches of fiduciary duty have occurred. It's a modest skill, sure. But reading over what the Great and Good have had to say about all this, I don't see much reason to think that they have actually read the underlying documents either. I suppose I don't really expect them to, because for them all this rises or falls on political calculations in which the truth or falsity of the underlying charges is not really relevant. But in that case, honest people leave aside the charges on which they have no particular knowledge, and make honest cases on policy grounds. Naive, I know.

(ps. excerpts from the WSJ editorial, Axis of Soros, from the open link.)

***
Axis of Soros
The men and motives behind the World Bank coup attempt.

Wednesday, May 9, 2007 12:01 a.m. EDT
Wall Street Journal, editorial

Mark Malloch Brown spoke Monday to a crowded auditorium at the World Bank's headquarters, warning that the bank's mission was "hugely at risk" as long as Paul Wolfowitz remained its president. Only hours earlier, news leaked that a special committee investigating Mr. Wolfowitz had accused him of violating conflict-of-interest rules. A coincidence? We doubt it.

Mr. Malloch Brown, remember, was until last year Kofi Annan's deputy at the United Nations. In that position, he distinguished himself by spinning away the $100 billion Oil for Food scandal as little more than a blip in the U.N.'s good work, and one that had little to do with Mr. Annan himself. Last week, Mr. Malloch Brown was named vice president of the Quantum Fund, the hedge fund run by his billionaire friend George Soros. A former World Bank official himself and ally of soon-to-be British Prime Minister Gordon Brown, Mr. Malloch Brown would almost surely be a leading candidate to replace Mr. Wolfowitz should he step down. Not surprisingly, Gordon Brown cold-shouldered Mr. Wolfowitz at a recent meeting in Brussels.

The bank presidency would be a neat coup for Sir Mark, and not just because the post has heretofore gone to an American. He also stands for everything Mr. Wolfowitz opposes, beginning with the issue of corruption. Consider Mr. Malloch Brown's defense of the U.N.'s procurement practices.

"Not a penny was lost from the organization," he insisted last year, following an audit of the U.N.'s peacekeeping procurement by its Office of Internal Oversight Services. In fact, the office found that $7 million had been lost from overpayment; $50 million worth of contracts showed indications of bid rigging; $61 million had bypassed U.N. rules; $82 million had been lost to mismanagement; and $110 million had "insufficient" justification. That's $310 million out of a budget of $1.6 billion, and who knows what the auditors missed.

Mr. Malloch Brown also made curious use of English by insisting that Paul Volcker's investigation into Oil for Food had "fully exonerated" Mr. Annan. In fact, Mr. Volcker's report made an "adverse finding" against the then-Secretary-General. Among other details, the final report noted that Mr. Annan was "aware of [Saddam's] kickback scheme at least as early as February 2001," yet never reported it to the U.N. Security Council, much less the public, a clear breach of his fiduciary responsibilities as the U.N.'s chief administrative officer. Mr. Malloch Brown described the idea that Mr. Annan might resign as "inappropriate political assassination"--a standard he apparently doesn't apply to political enemies like Mr. Wolfowitz.

Mr. Malloch Brown never made any serious attempt to reform the U.N. beyond the cosmetic, while doing everything he could to block the real reforms proposed by Americans Christopher Burnham and former Ambassador John Bolton. He was, however, energetic when it came to lecturing Americans about what they owed the U.N., such as joining the "reformed" Human Rights Council (whose only achievement to date has been to castigate Israel), pursuing a "new multilateral national security," and otherwise empowering the likes of Mr. Malloch Brown, his multilateral mates and their tax-free salaries.

Views like these help explain why Mr. Malloch Brown is in such favor with Mr. Soros, who has publicly suggested the U.S. will need a "de-Nazification" program to erase the taint of the Bush Administration. So close are the two that Mr. Malloch Brown lives in a suburban New York home owned by Mr. Soros. Mr. Malloch Brown says he pays market rent, though reporting by the New York Sun's Benny Avni disputes that. In any case, it's safe to assume that Mr. Soros's widely published views are close to Mr. Malloch Brown's somewhat more guarded ones.

So it's not surprising that many on the World Bank staff would cheer Mr. Malloch Brown: He's perfect for an institutional culture in which "progressive" thinking goes hand-in-glove with a tolerance for corruption. That culture has been on vivid display in the Euro-coup against Mr. Wolfowitz. This weekend the committee investigating the claims dropped 600 pages in the president's lap and told him he had 48 hours to respond--in direct violation of World Bank staff rule 8.01, 4.09, which states that "the amount of time allowed a staff member to comment [on an investigative report] . . . will not be less than 5 business days." Following protests from Mr. Wolfowitz's lawyer, the committee gave him 72 hours.

This is the same kangaroo court that last month leaked its guilty verdict to the Washington Post before Mr. Wolfowitz even had a chance to plead his case. Our sources who have seen the committee's report tell us it is especially critical of Mr. Wolfowitz for daring to object publicly to the committee's methods and thereby bringing the bank's name into disrepute. The Europeans running this Red Queen proceeding prefer that they be able to smear with selective leaks without rebuttal.

Mr. Malloch Brown warned on Monday that, if Mr. Wolfowitz stayed as president, European countries might withhold funding from the next financing round for the bank's International Development Association. We hope he's right, though we know few European finance ministers who aren't eager to throw good money after bad. Still, it's a remarkable bit of chutzpah for the man who downplayed corruption at the U.N. to seek the ouster of the man who has fought to reduce corruption at the World Bank.

If the Bush Administration now abandons Mr. Wolfowitz as he faces a decision from the bank's board of governors, it will not only betray a friend but hand the biggest victory yet to its audacious enemies in the George Soros axis.

Michel Cluizel grand noir 85% ... and the Food Channel

Maybe I am just starving, but in the showdown between Michel Cluizel grand noir 85% and Valrhona noir extra amer 85%, conducted between, well, me and me, at my desk this afternoon, the Michel Cluizel won. Hands down. It is not one of the "single origin" products. And maybe it's because I just spent several hours working out hard at the gym, but the Michel Cluizel is this afternoon's grand prize winner.

I also may as well admit that when at the gym, I have gradually become addicted to the Food Channel. I don't follow sports at all, but I have, alas, become an addict of Emeril Legasse, the skinny Italian woman whose name escapes me and, of course, Rachel Ray. It somehow seems like the right thing to watch when striving to burn calories and while operating at, oh, call it 20% normal oxygen. I have also noted, however, that with one or two exceptions, none of the chef hosts on the Food Channel can remotely be called skinny, and most of them qualify as unquestionably ... fat.

When you write about things like Wolfowitz and the Bank ...

The comments people have put up on my blog re Wolfowitz and the Bank have generally been reasoned and civil, even when they disagreed with me. Knowing the nature of much of blogosphere, I appreciate that very greatly. That is unfortunately not true of a number of the comments posted to some of the World Bank staffer blogs - David Ignatius described them as "shrill"; I would describe a goodly percentage of them as considerably more vicious than that. However, this email arrived at my office a few minutes ago, from one Mohamed Cassam, cassamm@aol.com, and while it is probably not very unusual a communication for people who write on these topics, for someone like me who teaches pretty prosaic areas of corporate finance, governance, nonprofits, business transactions, etc., it is a bit startling.
***

Why such animus against Wolfie? Hostility to his "reforms"? So you ask.

What world do you live in?

Wolfie, Feith, Kristol and all the other Likudist gangsters who cooked up the Protocols of the Elders of....................................................................Neo Connery

are responsible, to date, for the murder of 1 million Irakis and smashing the lives of 22 million others by invading their country on false pretences for Israel's benefit.

You being a Hoover Institute hack couldn't give a damn how many Ai-Rabs the DoD kills, being the NAZI you are (North American Zionist+Israeli) Any way, congratulations on getting equal time with that Nobelisto JS on the FT..not bad for 3rd rate academic at a soso degree factory.


However you are on the right track regarding the spousal benefits that the senior Bank management cook up and enjoy. Go after them!

Mohamed Cassam

Washington Note on Matthew Waxman

The Washington Note has a piece mentioning that Matthew Waxman has been named acting director of the Office of Policy Planning at the State Department, now that Stephen Krasner has returned to Stanford. Here (middle of the piece). Matt Waxman is one of the really good - I use that in both senses, extraordinarily competent and extraordinarily moral - in the Bush administration. As the Note says:

***
Policy Planning Director Stephen Krasner has now officially departed for Stanford -- and "Acting Director Matthew Waxman" is in place.

Waxman is an ideas entrepreneur with character (he is one of the real insider heroes who while at DoD fought against the erosion of the Geneva Conventions on torture). He also gets strategy and knows that water wars, transnational disease transmission, environmental challenges posed by climate change dynamics, massive refugee crises, and other non-traditional problems must be dealt with as well as thinking through how a superpower manages its interests in a world where other superpowers -- and even not so super powers -- aren't the overriding security challenge.

State has yet to find the person that they would like to have as their own version of Andy Marshall, who heads "Net Assessments" at the Pentagon and who is brilliant, old, and sort of "yoda-like." In fact, he is nicknamed "Yoda".

But perhaps State should remove the "acting" from Matthew Waxman's title and roll the dice on someone who appears to many to be a 21st century "young Yoda." Waxman, who I have met on occasion, reminds me of a hybrid of strategic wunderkind Paul Nitze and Eisenhower acolyte Andy Goodpaster.

One senior State Department official believes that Condi Rice "wants a name" heading Policy Planning -- someone "with more stature." But this is a pivotal time in American history and foreign policy. Not a lot of what we did yesterday will be that helpful in thinking through what we need to do tomorrow. Everything needs to be rethought. Lots of "unthinkables" need to be worked on.

Fresh thinking and working to benchmark the complexities of deploying diplomacy as well as hard power in the 21st century are what a nimble mind like Waxman's may be better equipped to do than those who are regular Foreign Affairs groupies.

Hopefully this blog post won't sink Waxman's chances to succeed Krasner, but someone out in civil society had to point out that there is incredible talent embedded in our current government and that it has been the "big names" like Cheney, Rumsfeld, and John Bolton who have caused the worst problems for American foreign policy and who, in many cases, have taken the country in very troublesome directions.

It may be time to try something new.

Many of us would applaud it.

My Financial Times comment on Wolfowitz and the World Bank

How the ethics committee failed Wolfowitz

Kenneth Anderson

Financial Times,
May 7, 2007

The World Bank’s ethics committee should have a sign on the door warning: “Caveat emptor –don’t rely on us.”

The absurd controversy over the tenure of Paul Wolfowitz, World Bank president, whose longstanding romantic partner was at the bank years before he was, can be traced to that committee’s incoherent advice.

The ethics chairman who proffered advice to Mr Wolfowitz when he joined the bank is now backpedalling furiously. In loosing the hounds to bay after Mr Wolfowitz and his friend, the institution has set in train a process that will inevitably draw attention to the varied personal relationships and salary levels of other bank administrators and directors.

In 2005, the ethics committee rejected Mr Wolfowitz’s workable proposal to recuse himself on all personnel matters concerning his friend. Instead, it ruled that she would have to leave the bank altogether, disrupting her career and making her forgo a promotion for which she had been shortlisted.

It was an extraordinary decision, raising important questions of gender equity at the bank.

Some have mistakenly supposed that the “advice” was a reflection of settled bank rules. But, in fact, it was quite different from the treatment accorded to some other couples who work there.

Mr Wolfowitz’s friend, Shaha Riza, whose dignity and reticence have been trampled by the bank, testified last week before an ad hoc investigating committee of the bank board of executive directors. Ms Riza said: “I could not understand at the time or now why I was being singled out for this treatment when the then managing director Shengman Zhang’s spouse . . . was working at the bank and before her . . . Caio Koch-Weser’s spouse, when he was managing director. Neither wife was asked to leave the institution.”

Mr Zhang, a Citigroup vice-president who formerly served as the second highest ranking official at the World Bank, has suggested that the analogy is unfair, arguing that wives and husbands have more latitude to work together under “circumscribed conditions” than do persons in less traditional relationships.

But the bank’s staff manual states, in rule 4.01, paragraph 5.2, that spouses and registered domestic partners are forbidden from working in any situation where one “supervises the other, directly or indirectly”, or where they will be brought by their duties into “routine professional contact”. This might seem to apply to Mr Zhang. What is more, rule 3.01, paragraph 4.02, says in the case of more informal relationships, such as that of Mr Wolfowitz and Ms Riza, simply that the supervisor “shall be responsible for seeking a resolution of the conflict of interest”.

But if the bank’s former number two manager cannot recall the rules and exceptions that actually applied to him, how can anyone else be expected to know what they mean?

With perverse illogic, after insisting that Ms Riza must leave the bank, the ethics committee directed that Mr Wolfowitz himself must take care of the terms of her departure, including appropriate compensation for career damage. It mandated the very conflict that Mr Wolfowitz had aimed to avoid yet gave no instructions on how to carry this out. He took the matter to the human resources department, and the ethics committee later issued two reports pronouncing itself satisfied with the outcome.

Ad Melkert, former ethics committee chairman, now creates the impression that the matter was handled under the table, but he ignores the plain language of his committee’s reports. Ms Riza testified that “during my negotiations with [the bank vice-president of human resources], neither he nor anyone else ever suggested to me that my compensation package might violate bank policy in any way.”

If the ethics committee was not “consulted” beforehand on the terms of the Riza negotiation, it is because Mr Melkert refused to deal directly with Ms Riza or consult the head of human resources on what to do in order to give Ms Riza an adequate, yet not excessive, buy-out. If he was unaware of terms of the compensation package, it was because he washed his hands of the matter. His complaints today are opportunistic and smack of a political agenda.

Why such animus against Mr Wolfowitz? Some say it reflects hostility to reforms and others point to the interest of European contributors in a chance at the bank presidency.

Whatever the case, the board is frothing, with many directors apparently seeking any excuse to fire the boss. Its ad hoc investigative report is due at any moment.

But the facts before the board show that the real scandal does not centre on Mr Wolfowitz. The real scandal is the arbitrariness of an ethics committee and its muddled advice, and the astonishing way in which that committee’s failures have metastasised into an ethically dubious venture to bring down the president. None of this speaks well of the bank’s internal processes, or the likelihood of effective internal reforms that would enable the bank to carry forward its important work.

The writer is a law professor at American University and a research fellow of the Hoover Institution.

ABA International law section discussion of foreign law in constitutional interpretation

I was honored to take part on a panel today at the ABA international law section meeting here in DC at the Fairmont Hotel on the topic of foreign and international law in US constitutional interpretation. The panel had a lineup of heavy hitters - Robert Lutz, Darrell Prescott, Robert Stein, Patricia Wald, Vicki Jackson, and John Bellinger. I felt very privileged to take part.

This topic has received an astounding amount of attention over the last couple of years - I looked on Westlaw and there must be a couple of hundred articles dealing with it at least tangentially. It seems as though every American legal academic has weighed in, and one question is what more there could possibly be to say on the matter. I mean, it is clearly a semi permanent part of the culture wars - every SCt and appeals court candidate, I imagine, will be asked about it in confirmation hearings. One important question is why a matter that is in one sense so obscure still manages to capture our attention and, more importantly, our emotions. people engage passionately with the issue, and a useful question is why.

(And of course I don't exempt myself in this - my own offering, while short, is not short on passion [in Policy Review June-July 2005, on SSRN here]. And that brief, 8,000 word article, barely footnoted, has been downloaded 275 times on SSRN, which is astounding, frankly, for anything I write, and cited a bunch of times even though it is not available on Westlaw or Lexis.)

One reason that the issue engages the passions is that it is, in an inchoate way, a certain indicator of both intellectual positions - a proxy for liberal internationalism, on the one hand, or democratic sovereignty on the other. But what engages the passions about that is not precisely those political or intellectual positions, but instead what is implied about you as a person - cosmopolitan or provincial. Of course nothing is ever as clearcut as that - these identies are overlapping and swirling - I myself, for example, would call myself one of Josiah Royce's "higher provincials." But it signals a certain sense of basic commitment, whether that is in fact true of one or not.

Another reason why the passions are engaged over this issue is that it engages with certain fundamental fears. On the one hand, the fear of a judge - or anyone, really - that the electorate, the people, whomever - are saying, you can't read this, you can't think about that, a form of mindcontrol which seems to suggest that ignorance of importantly related things is bliss and indeed a form of the good. If I were a judge, I would find that both scary and outrageous - not to mention a little ridiculous: you are not allowed to think about how they would do it in the German constitutional court - whatever you do, don't think about the German constitutional court; whoops, I did it again ... On the other hand, the fear of democratic electorates that the judges to whom they have committed profound countermajoritarian powers, but with a certain implied commitment to provide reasoned decisions based out of agreed upon sources and materials, feel free to adopt and use whatever materials they like.

One striking feature about those quite profound fears, however, is that they are both real, both perfectly worthy fears - but are really about quite different things. They address palpable concerns, but they are about different things and are quite compatible with one another. I, for one, feel them both.

The current state of the academic debate might be characterized this way. First, there are three general responses to the use of foreign materials in constitutional adjudication (and John Bellinger was right in his remarks to emphasize that we are discussing, however much the passions are engaged, a very narrow part of what judges, even Supreme Court justices, do in their legal work). One is to say, it's a big deal - and it's bad - this is the Scalia position. It's also, for what it's worth, my position. Another is to say, it's not a big deal, and it's okay, because it has always gone on, has a long history, is not a radical departure from past practice, etc.- much of the academic work has been in this position, including, eg, Mark Tushnet's very fine writing on these issues, Vicki Jackson's work, and much of the directly historical work on the citation practices of the Court from Marshall onwards. A final one is to say, yes, it is a big deal - but it's good, not bad. This is the Ginsburg position in her new article.

In addition to these three "streams" or thematic responses, academic discussion of the question tends to fall into one or another of four levels of abstraction: (1) canons of interpretation of texts by judges or, really, anyone - an example would be the debate between the justices over whether the citation of foreign authority de-constrains judges in bad ways. (2) constitutional interpretation specifically, such as how foreign law fits into existing approaches to constitutional law - natural law, originalism, the living constitution, and pragmatism. (3) political theory - this is my own particular location in the debate, drawing freely from Charles Fried's writings here - the question of democratic legitimacy and the importance of the provenance and not merely the reasonableness of judicial authorities and citations. (4) social theory or sociology - the social characteristics sought or urged for what foreign law citation is sometimes - a la Anne Marie Slaughter - said to signify, the development of a transglobal, elite, cosmopolitan judicial culture of judges engaged in a common enterprise.

What I tried to note in my remarks at the ABA meeting was that very often people engage in one aspect or another of this debate, and do not recognize that they are debating with someone who is primarily engaged, passionately engaged, with another part of the complex set of issues that the whole foreign law debate puts on the table. This not infrequently leads to ships passing in the night. It was a very interesting discussion, and I'm delighted I was invited to take part.

WSJ editorial on World Bank salaries

The Wall Street Journal editorial page, open link here, notes that nearly 1,400 employees at the World Bank make more than Condi Rice. Not to mention that it is tax free for non-US employees, plus school and housing allowances and such goodies.

While it is true, as the Journal points out, that Bank employees are far from under a vow of poverty while presumably battling poverty, I myself am not unduly upset by the salaries. Yes, they are high by market standards. Yes, you could get at least as a good a quality of service at much lower wages; the actual quality of the Bank's work depends not merely upon the paper credentials of its staff and how happy they are with their compensation, but with the visionary esprit of the organization and its sense of vocation: it seems to have been a long time since the Bank had any sense of vocation, if ever.

On the other hand, I chair the board of a modestly sized nonprofit venture fund organization, and while our salaries are much, much, much, much, much, much, much lower than the World Bank's, ideally I would like to raise them to levels at least within eyeshot of the Bank's. (And if I could go to the US government for $7 billion or so, and to the Europeans for gazillions, too, I could.) As a nonprofit director, I want to be able to keep the people the organization needs over the long term, and that means that you seek to enable them to live a more or less upper middle class professional lifestyle - send kids to college, buy home, fund retirement. Upper middle class professionalism is not a vow of poverty and never was.

No, the real issue for me is that ordinarily the tradeoff is between tenure and salary. By professional lawyer standards, I don't get paid a huge amount as a law professor. Clearly I could make a lot more in practice, even in the nonprofit world - it's not revealing any secrets that I made more as a law firm associate than I do as a professor, and made more as general counsel to a large charity than I do as a professor. What I do have as a professor, besides a better lifestyle, is tenure. I'm pretty good at what I do, and I'd like to think my dean agrees with that, but the reality is that part of the tradeoff is a tenured sinecure that replaces salary. At the World Bank, however, you get them both - salary and tenure. That's a big problem - and a bigger and bigger problem the higher the salary and the fact that World Bank people are typically not really placeable, after very many years, anywhere outside the multilateral institutions. (The same, by the way, is true of law professors; I'm not being mean, it's just a fact of many professionals.) It's a mistake to hand out both tenure and salary.

I have long been a supporter in the nonprofit and government worlds, including the multilateral organization world, of complete disclosure of all compensation arrangements. I think foundations and charities and nonprofits should post all compensation arrangements, contracts, salaries, for each compensated person, to the web as part of their annual filings. Same for government agencies and international organizations. That transparency in organizations which deal in the public trust would go a long way. I suppose, in the real world, the best one could hope for is a going-foward rule, along with pressure on the existing staff voluntarily to do what Ban Ki Moon rather admirably did (and Annan did not - nor, for that matter, that supposed paragon of virtue, Ad Melkert, who according to Inner City Press has still not submitted his own financial disclosure forms at UNDP, quite apart from his own ethics-in-hiring issues at UNDP) and disclose his financial statements publicly.

So I think the World Bank staff who have made an issue of Riza getting paid more than Rice have done themselves and the Bank no favors. The Journal gets it right:

Mr. Wolfowitz was directed by the bank's ethics committee to find a new job for Ms. Riza, a longtime bank staffer, when he became president in 2005, despite his requests to be recused from the matter. The committee suggested an "in situ promotion" to the next paygrade or an "ad hoc salary increase" as part of a "settlement of claims." The offer was intended to be generous, given that Ms. Riza--who already had been shortlisted for promotion--was being forced out of the bank, possibly for good, for a conflict she did not create and to a job she had not sought.

Ms. Riza was eventually given an external assignment at the State Department with a salary (paid by the bank) of $193,000, up from the $133,000 she had previously made at the bank. To Mr. Wolfowitz's critics, this was improper and excessive, especially given that Condoleezza Rice makes about $10,000 less. But this is highly selective outrage given normal procedure at the bank.

Of its roughly 10,000 employees, no fewer than 1,396 have salaries higher than the U.S. Secretary of State; clearly "fighting poverty" does not mean taking a vow of poverty at "multilateral" institutions. At the time of Ms. Riza's departure from the bank, she was a Grade "G" (senior professional) employee; the typical salary in that grade hovers around the $124,000 mark. For the next level, Grade "H"--the level to which Ms. Riza was due to be promoted--salaries average in the $170,000 range, with an upper band of $232,360. No fewer than 17% of bank employees are in this happy bracket.

Even sweeter, all of this is tax-free to non-Americans. U.S. employees have to pay U.S. tax but have their income taxes reimbursed by the bank. As with any public bureaucracy, these jobs are also impossible to lose for anything other than gross incompetence or venality. Some of Mr. Wolfowitz's accusers--notably, former general counsel Roberto Danino--are angry precisely because he upset their lifetime sinecure by demanding higher performance.

These details are common knowledge within the bank itself, so it's only fair that they be made public to the American taxpayers who finance this comfortable poverty-fighting lifestyle. Alison Cave, the head of the bank staff association leading the campaign against Mr. Wolfowitz, ought to be the first to make her salary and performance reviews public--in the name of restoring the bank's "credibility," to borrow one of her favorite words.

Anti-Gay-Couple Rules at the World Bank? The latest twist in the attack on Wolfowitz

Steven R. Weisman has a story in today's New York Times, Thursday, May 3, 2007, A6, "Committee Is Likely to Say Wolfowitz Broke the Rules." The article largely summarizes the state of play, largely as seen from the hands of European governments and players seeking to oust Wolfowitz. (Update, May 3: I have other posts on the Wolfowitz affair here, here, here, and here (last part of post). Or check under the tags for World Bank.)

The last three paragraphs of the article introduce something quite astonishing, however - quite amazingly, the question of whether the Bank's personnel rules are anti-gay - into this debate over whether Wolfowitz acted inappropriately in his dealings regarding his long time companion and Bank staffer, Shiha Riza. The article quotes from the former number 2 official of the World Bank, former bank managing director Shengman Zhang, who left the Bank shortly after Wolfowitz's 2005 arrival.

Zhang's wife also worked at the Bank - the same situation was true of at least one other senior Bank manager - and the Bank had taken the position that so long as the senior manager recused himself from personnel dealings with his spouse, it was not necessary to require that the wife actually leave the Bank. Wolfowitz had initially sought the same arrangement for Riza - his recusal from any personnel matters dealing with her, but had been rebuffed by the Bank's internal ethics committee, which had ruled, quite harshly from the standpoint of gender equity, that only Riza's actual departure from the Bank would suffice to avoid conflict of interest issues. It was the ethics committee - under the chairmanship of Ad Melkert, now at UNDP (where, as noted in the post below, he has his own considerable ethics issues that bear, one might think, on his credibility in the Wolfowitz matter) - that insisted that Riza leave the Bank.

The questions of special treatment arise from the fact that the committee refused to treat Riza as it had treated wives of other senior bank officials - through recusal - but at the same time it required that, because Riza was being forced to leave the Bank for no reason related to her or her professional performance, she be given some form of buyout compensation.

Wolfowitz had pointed out, early in this process with the ethics committee, that the Bank already had precedent, in Zhang's case and others, for recusal rather than forcing the spouse to leave the Bank, as the proper procedure. Now come the astonishing paragraphs in the Times article. On Wednesday, May 2, Zhang - no longer at the Bank, but formerly its number two manager - circulated a statement throughout the Bank

"expressing irritation that Wolfowitz had cited the fact that, because Mr. Zhang and his wife both worked at the bank, there should be considered a precedent that would allow Ms. Riza to remain there."

So what was the difference between Zhang's position and Wolfowitz/Riza's? According to Zhang, that they were married, and not merely in a sexual relationship. The Bank's rules, according to Zhang - and presumably he should be in a position to know as the Bank's number two manager - permitted

"husbands and wives to work at the bank under circumscribed conditions, which he said he followed, but that they barred anyone from having a sexual relationship with a top bank official outside of marriage." (emphasis added)

Do we understand this correctly? People who come into the Bank, such as Wolfowitz, with a long standing "sexual relationship" that is "outside of marriage," cannot operate on the same basis of recusal and professional relationships that people who are married - not just married, he says, but specifically "husbands and wives" - are permitted to do under the Bank's rules. Gay couples who are not "husbands and wives"?

This is breathtaking. I knew that the Bank had governance problems. And like all these institutions of global officialdom, it has limitless rhetoric on diversity, gender sensitivity, etc., etc., which, as this demonstrates, is often no more than a micron thick. But I would not have thought that it would have facially discriminatory, anti-gay-couple rules. But if Zhang is correct, that's what it is. A gay couple, because they are not married and are not "husbands and wives," would not both be able to remain at the Bank if one of them were a senior official - whereas a married couple would. As Zhang added:

"'I trust this clarifies the misleading attempt to equate my case to that of Mr. Wolfowitz', said Mr. Zhang, now a senior vice president at Citigroup in Hong Kong. 'My wife and I worked at the bank under a rule which expressly permitted it. Mr. Wolfowitz attempted to have Ms. Riza work for him in defiance of an express prohibition'."

Well, this certainly clarifies what Zhang thinks separates his case from Wolfowitz's - viz., being husband and wife. I hope that clarifies things for the progressive community, and perhaps the Human Rights Campaign folks as well. Husbands and wives, apparently, don't engage in wrongful professional pillow talk; lovers and partners who are not blessed by the legal status of being husbands and wives apparently might. Perhaps the Europeans, so eager to remove Wolfowitz, or at least to end his anti-corruption campaign by fatally weakening his leadership, might want to ask in what progress consists.

Is this really the Bank's rule? Could it really, truly be that the World Bank would have a rule so nakedly anti-gay? I asked informally - I didn't talk with the Bank's lawyers, as it seemed unlikely anyone would dare respond - and no one seems to know. Zhang calls it an "express prohibition." But where is it written down?

It seems quite possible it is written down somewhere. It seems quite possible it is not written down anywhere - and that the Bank, if pressed on this issue by some NGO group, would deny having any such rule. It also seems quite possible that the Bank has indirectly addressed some such question in some obscure memo from the ethics committee, or some internal employment review panel, or some internal thing - which maybe counts as "express" or maybe just counts as something that no one quite knows about but which can be triumphantly pulled out of a file as needed - or, on the other hand, quietly forgotten if not.

One of the insistent lessons of the Wolfowitz affair with respect to Bank governance is that the Bank manages that great bureaucratic feat, so reminiscent of the "soft" Communist regimes of Yugoslavia, Hungary and today, China (and Zhang's language sounds less like a banker than that of a Chinese Communist Party functionary, does it not?), the twin, simultaneous qualities of infinite discretion combined with infinite rules. A bureaucracy that has a rule for every occasion - and the discretion to ignore them whenever and however it feels like. No wonder the institution is so resistant to Wolfowitz's rule of law agenda.

(Update, May 3: Thanks Glenn for the Instalanche!)

(Update, May 5, Added "personnel" to the above discussion of recusal - sorry, should have caught that. My thanks to the commenters, who have been uniformly courteous and polite, which is not always the case on blogs.

Meanwhile I've had a chance to read through the Bank's personnel rules re domestic partnerships and other relationships. As written they are admirably progressive, and per one of the comments, as an outsider to the Bank around DC, I haven't ever heard of anyone complaining about the Bank as being anti-gay. Far from it. That is why I was so surprised to read Zhang's understanding of those rules in the NYT, and what he thought they meant, because his understanding of them draws a quite invidious distinction between married husbands and wives and all the rest.

But if the number two manager of the Bank can't manage to get straight the rules on something with profound implications for him personally, how is anyone else supposed to do so? Well, in that case, one looks to internal interpretive structures such as the ethics committee for guidance. One may agree or disagree as to whether Riza's departure from the Bank was essential; certainly it was both Wolfowitz's right to ask that she be allowed to stay, just as it was the committee's right to say that she had to go. The comment in the post below that Wolfowitz had asked that the recusal be limited to personnel matters was misconduct seems to me quite wrong; he could ask for it, and the committee could, and did, not only turn him down, but take an even more drastic step. All within the committee's pregrogatives, even if it was at considerable variance, one could argue, with how similar situations had been treated at the Bank.

However, given the baroque complexities of the Bank's rules, and the vagaries of their interpretation, it was not within the committee's prerogatives simply to leave the question of how to comply with its ruling unanswered - or, at least, if if choose, as it did, to leave all those matters open, twice say that the outcome was fine, and only then come afterwards and claim noncompliance and bad faith, in the way the Ad Melkert now does. The expectation after the fact seems to be that Wolfowitz was to read the mind of the committee in how he must comply - in a situation of heads I win, tails you lose. It is very easy, obviously, to say afterwards, well, any reasonable manager would have known that we meant that you do x, y, and z. Anyone can say that and never be wrong. It is, however, an exercise in bad faith, and that, it seems to me, is how Melkert has responded, with whatever larger political agendas he might have.

Ad Melkert's own credibility and ethics issues at UNDP

While we are on the subject of Ad Melkert, formerly head of the World Bank's ethics committee and now one of Wolfowitz's chief accusers while at the United Nations Development Program, it bears noting that he has ethics issues of his own at UNDP. Since some part of the questionable accusations against Wolfowitz depend on Melkert's credibility, it is worth bearing in mind that over at UNDP, he has proceeded to hire, outside the competitive hiring process, a politician from his own Dutch Labor Party. See the Inner City Press stories, here and here (these folks, by the way, do genuine investigative, shoe leather reporting and spare no one - well, enough said by way of comparisons ...). As the Inner City Press story said:

"UNDP's hiring of Eelco Keij of the Dutch Labor Party is another example of Melkert "making the best" of the UNDP rules -- that is, bending or breaking them, as is alleged of Wolfowitz at the World Bank."

Also, according to Inner City Press, it might well be that this whole fabricated coup against Wolfowitz is under the direction of Mark Malloch Brown in pursuit of the goal of becoming Wolfowitz's non-American replacement. See the same stories, above.

One additional point. I have never met Paul Wolfowitz. I'm not raising these questions because I have any relationship whatsoever with him or anyone around him; I hold no political positions or anything else - I'm just a very ordinary professor in DC. I am astonished and appalled that powerful people - in the administration and out - who were responsible for putting him at the Bank have not come to his aid - he appears to have no friends in DC, so far as I can tell, besides Christopher Hitchens. I generally agree with Wolfowitz's policies for the Bank and for development, particularly African development. He was naive about the Iraq war; I've written my general views of neoconservatism and Wolfowitz's naive version of neoconservatism, here and here. But I think the ethics charges amount to nothing and are merely the means for a disgruntled staff and its European allies to stage a coup because they hate him and the Bush administration for the Iraq war, among other reasons, and because they don't really have all that much against corruption as such, either in the Bank or among its clients. That's what it comes down to - venal means in pursuit of a political coup.

NYT Steven R. Weisman reporting on Wolfowitz

(Update, Wednesday, May 2, 2007. On the (very) off chance that Steven Weisman has actually seen this post, I want to apologize for my pissiness below - I'm taking out the more peevish stuff. I also want to add that I do know well and have often worked with Bank staff on various things, and many, many of them are very dedicated and able. The comments that people have posted have been courteous and worthwhile, and my thanks for that.)

(Let me respond, though, to two comments on this post. The first observes, quite correctly, that Wolfowitz's problems ultimately stem from politics, which was the source of his appointment. True enough, but not a reason, surely, to attack him on what I regard as baseless ethical issues as politics by other means; surely, too, it was no less politics in the case of Wolfensohn or any other Bank president. As to the second comment, which provides a sample of what Wolfowitz, it is said, ought to have done - well, I am struck, in regards to this comment and many others floating around the blogosphere, that this is more properly what these commentators seem to wish that the ethics committe had done, and had instructed Wolfowitz to do. To fault Wolfowitz for following the ethics committee's (seemingly intentionally) vague instructions rather than faulting the ethics committee for not being clear what procedure should be followed - well, having been a general counsel for a large philanthropy, sure, one can fault anyone for what they should have done or should have known to do - but the buck stops, so far as I can tell, with what the committee charged with setting out the procedures and instructions said and didn't say to do. Not with Wolfowitz. And if that's a hanging offense - not to read the minds of the ethics committee - then the Bank is a good deal less transparent than even I would have guessed. And its governance - not Wolfowitz's governance, but the Bank's overall governance, preceding Wolfowitz and persisting, is in even greater disarray than I would have imagined.)

The New York Times' Steven R. Weisman has a story in today's paper, "Former World Bank Officials Detail Discord Over Wolfowitz," NYT, Wednesday, May 2, 2007, A11, behind the NYT subscriber wall.

The story recounts statements given to the World Bank board, released yesterday, that dispute Wolfowitz's accounts. One of them, from former Bank general counsel Roberto Danino, is reproduced in the comments in the post below. The other is from Ad Melkert, the former head of the Bank's ethics committee who, according to the story, is "deeply hurt by efforts to manipulate information." [Deleted by author as pointlessly pissy.]

Weisman offers a reasonably straight account of what the two statements said. Fine. But shouldn't the article not merely reproduced their allegations and Wolfowitz's counterclaims - but actually go to the documents at issue to see whether they support one claim or another? If Weisman has spent hours and hours going through the ethics committee's earlier reports on the matter, great, but it is not evident in the reporting.

Consider, for example, Danino's point 17(i) (see comments to post below for complete Danino text):

17. In my opinion, this was incorrect because: (i) PW was in a de facto conflict of interest under Staff Rule 3.01, paragraph 4.02, which should have precluded him from providing these benefits to the very person who was part of the conflict.

Well, maybe. But Weisman's reporting does not go back to the Ad Melkert-chaired ethics committee's minutes of August 29, 2005, which state that:

"Members of the [Ethics] Commitee 'cannot interact directly with staff member situations'. Therefore, the Chairman appropriately declined to meet with the staff member concerned as the Requestor had suggested. Instead, it was proposed that the VP HR be instructed by the Requestor to do so."

Might it not be reasonable to think, on the basis of what Ad Melkert's own report from the time said, that Wolfowitz was forcibly reinserted back into all this on the Bank's ethics committee's own instructions? Sure, I suppose you can have all sorts of discussions from that point forward about what that meant, and who should conduct it, and so on - but doesn't Weisman have some obligation to his readers to point out that on the basis of one of these officials' own report from the time, there is an explanation and it is not consistent with what is being asserted now?

Moreover, reading the remainder of the statements, including Riza's, along with the ethics committee's repeated statements from the time that there was nothing wrong with these arrangements, it remains as hard as ever to see what the scandal is supposed to be about. The evidence seems to say that Wolfowitz went to the VP per the ethics committee's instructions, and told the VP to see what Riza wanted in the way of a package that, in the circumstances, amounted to a buy out for her lost opportunities (which, considering what she gave up through yet with no fault on her part, seems cheap at the price - a few tens of thousands of dollars? With every good reason, the salary hike was not considered an issue at the time, because it wasn't and isn't, especially if one looks at World Bank pay scales.).

Riza brought her own lawyer to the meeting, and apparenlyt there were some strong negotiations. Isn't that what lawyers are for? Yet, as Riza says in her statement and I am not aware has been disputed (although, mysteriously, I suppose, as with so many matters involving Ad Melkert in this affair, it might yet suddenly be), no suggestion was made that the terms were inconsistent with the Bank's far from transparent rules. There was no request, for example, by the Ethics Committee that this should be reported back to them, nor was there guidance whatsoever as to what the pay level within the GH range should be.

If all of this is so dead wrong, as Bank staff now claim post hoc, well shouldn't any of this stuff - even to rebut it, even to show that Weisman is aware of the documentary story, even to state how and why it is wrong - show up in the Times' reporting? Should the reader have to do all the background checking and investigative work?

A few articles on Wolfowitz

I'm linking here a few articles on Wolfowitz I don't want to lose track of. (Update, I'll probably add a few more over time. Also, see things in the comments, such as the FT document of Danino's statement.)

David Ignatius, Washington Post, May 2, 2007, here, endorsing the lynching on the grounds not that the scandal was a scandal but that Wolfowitz brought it on himself by being a neocon ... fairly typical of Ignatius, I guess, chanelling the spirit of the Bank's high-toned mobocracy but not admitting it, and endorsing the idea that the only way to "reform" the World Bank is to do ... what the senior professional staff wanted all along. Ignatius wraps this in the "more in sorrow than anger," but aimed at declaring Wolfowitz's departure a done deal. What Ignatius describes as the intellectual arrogance of the Bank staff would be better described as its own very special internal culture of impunity. (Oh well, catty but true, Ignatius' new novel is not very good, either - I read a big chunk of it hanging out at Barnes & Noble over the weekend but realized I'd never manage to get all the way through it. Cover photo is great, though.)

Bret Stephens in the WSJ, here, May 1, 2007, noting that Wolfowitz followed the advice of the Bank's very own ethics committee - and that the Bank has a long history of special deals and conflicts of interest and all sorts of sorry stuff.

My own view is that Wolfowitz ought to call for full disclosure by all Bank personnel of all contracts and compensation arrangements, and that in the interests of complete transparency, they should all be posted as a matter of policy to the internet. That would reveal, I am quite certain, an amazing number of special arrangements, private deals, inequities in compensation. (I would make this a requirement of nonprofit corporate governance across the board.)

Indeed, my experience of nonprofit organizations - many of which have long traditions of lack of transparency in such matters despite the issues of public trust - suggests that organizations where employees cut many special deals have a particular tendency to shaft the women in the organization. For what it's worth, my experience in the nonprofit world suggests that maximum transparency tends to favor gender equity. And that secretive organizations like the World Bank often conceal considerable gender inequity through lack of transparency.

No doubt the staff kicking and screaming surrounding a call for compensation transparency at the Bank would make it impossible to implement. So I would urge Wolfowitz to announce his own, personal transparency - let him post his tax returns and any contracts and arrangements on the web - and call for voluntary compliance by people of integrity at the Bank. Grandfather the existing staff, while calling on them to do as Ban Ki Moon has done - and Annan never did - and make a completely transparent financial disclosure. Let's see who is willing to go public and who not.

The Wall Street Journal has an editorial in yesterday's April 30, 2007 paper dissecting the trail of bad faith at the Bank, and the members of its ethics committee in particular, here.

The Washington Post has a story on Wolfowitz's defense of himself by staff writer Karen DeYoung, here, that actually shows that a reporter has read the documents produced by the Bank's ethics committee. It is a cut above the rest of the reporting, particularly the execrable work done at the Financial Times.

Andrew Young has an op-ed supporting Wolfowitz in yesterday's April 30, 2007 Washington Post, here. I don't suppose it will sway any Euro-grandees of the Bank, but perhaps it will give the White House some backbone, or anyway some cover to support Wolfowitz.

***
The Right Man for the World Bank

By Andrew Young

Monday, April 30, 2007; A15
Wash Post

"Daddy King" -- the Rev. Martin Luther King Sr. -- was always reminding us that "hate is too great a burden to bear." Even after a childhood of racist oppression and the cruel assassination of both his son Martin by white men and his wife by a deranged black man as she sat at the organ of Ebenezer Baptist Church playing the Lord's Prayer, he daily affirmed that we must never stoop to hate.

Yet I came closer to hating Paul Wolfowitz than I ever came to hating Bull Connor, the Ku Klux Klan or the killers of Martin Luther King Jr.

You see, I saw Wolfowitz as the neocon policy wonk who led us into a war in Iraq but who had never even been in a street fight himself. My personal fantasy was to catch him alone and give him a good thrashing.

It seems our European friends are now indulging my fantasy. But I've come to realize how wrong that impulse is and how right Archbishop Desmond Tutu is when he says there's "no future without forgiveness."

I've also come to believe that the impatience of Wolfowitz and others with Saddam Hussein's violence grew from a more massive destruction than the world could ignore -- Hussein's murder of more than a million Shiites, Kurds, Kuwaitis and Iranians, even without possessing atomic weapons. I was in Kuwait after the Iraqi invasion of 1990. I saw the horror and bloodshed of their occupation, and I knew Hussein had to be restrained. I may disagree with the means that were used, but not with the problem.

At the World Bank, however, an aggressive impatience with the evils of disease and poverty is exactly what is needed.

I first spent time with Paul Wolfowitz in Anacostia in 2005, when I participated in a program of the Operation Hope financial literacy initiative. In reading the program notes, I discovered that his PhD from the University of Chicago concerned the politics and economics of water resources management and that George Shultz had been his mentor at the State Department. When he was Treasury secretary, Shultz took me on my first trip to Africa as a congressional delegate to a World Bank gathering in Nairobi. Shultz also opened the diplomatic dialogue with the African National Congress at a time when much of Europe and America wrote off Oliver Tambo, Nelson Mandela and Thabo Mbeki as hopeless communist terrorists.

I therefore decided to work with Paul Wolfowitz as a brother, and I have not been disappointed. We were together in Nigeria in 2006 for a Leon H. Sullivan Summit. I saw his effectiveness and warmth at work in a setting of 12 heads of state and 2,000 delegates from 22 countries.

His commitment and aggressiveness in promoting African development, as well as his abhorrence of needless bureaucratic "CYA" behavior, have been welcomed by those who love Africa and the developing world as well as by those willing to admit the complicity of the haves in the crisis of the have-nots.

It is my sincere hope that our European friends and allies can make the distinction between the U.S. Defense Department and the World Bank. While we still abhor the mismanagement and hubris of the Iraq invasion, we can share an aggressive impatience with poverty, disease, illiteracy and bureaucratic nitpicking and get on with our efforts to prevent the future wars and environmental crises.

France, Norway and the Netherlands have always been at the forefront of this struggle. I'm hopeful they will see the greater good of working together at the World Bank on these present evils and allow history, the World Court or the United Nations to judge Wolfowitz on his role in our previous conflicts.

We must get beyond the current crisis at the World Bank, a careful examination of which will show that Wolfowitz was operating in what he felt was the best interest of the institution and with the guidance of its ethics committee.

This crisis also should not redound to the detriment of Wolfowitz's companion, Shaha Riza, a British Muslim woman who is an admired World Bank professional and a champion of human rights in the Muslim world.

I am a Protestant Christian minister, a product of America's excessive Puritanism. I've always looked to Europe for sophistication, temperance and the tolerance the world needs to survive. It is my appeal that we offer Paul Wolfowitz the same chance to learn from the misjudgments of the past and move on together to construct a more just, prosperous and nonviolent world.

Andrew Young has served as executive director of the Southern Christian Leadership Conference, as mayor of Atlanta and as the U.S. ambassador to the United Nations. He is co-chairman of Good Works International, a consulting firm offering advice in emerging markets in the Caribbean and Africa.

Bernard Harcourt guestblogging at Volokh Conspiracy

University of Chicago law school professor Bernard Harcourt is guest blogging at Volokh - here's a link to one of his recent posts. Bernard is a criminal law professor and one of the smartest. I was privileged to have him as a student back in the early 90s when he was a a law student, and I was a visiting prof teaching laws of war, at Harvard.