A fond farewell to Teemu Ruskola

My dear friend and colleague, Teemu Ruskola, is departing WCL for Emory. We had a last coffee at the Starbuck's across the street from the law school yesterday, and I will greatly miss having him here. Emory is a wonderful opportunity for him, a wonderful opportunity for Emory and his new colleagues, but I will enormously miss our coffees here at WCL, where we discussed many things and I got a chance to understand just what a genuine intellectual, along with warm and funny friend, Teemu is. And so, to be perfectly, perfectly honest, somewhere back behind all my warm and fuzzy and adoring feelings, there is the slightest twinge that says ... treachery. No, wait, I didn't say that.

Honestly, though, and all joking aside, Teemu, you will be hugely missed by me and the rest of our faculty, and all best in Atlanta.

Dan Solove's annual law professor blog survey

Professor Solove has posted his informative annual survey of law professor blogs, here.

I'm not so sure this blog really fits the "law professor blog" category, alas - certainly at this point it is badly named, as I am as likely to post on music or food as I am on laws of war or international law. Overall, my sense of law professor blogging is that it is most likely to stay focused on a legal topic where it is a group blog, with some sense of disciplinary discipline - international law, whatever it might be. A group blog also has the virtue of having a certain dependable volume of quality, informative posts in some area of law. Most professors, me included, read blogs to get current information, or some idea of matters on which we should be getting information. Not really to find out what Professor Anderson is playing on his cello, or even his electric cello. And not really to find out what Professor Anderson thinks about the Simpsons Movie, even if he is reviewing it for somebody or other. When you are on a serious group blog, you tend to have a mission and a sense of professionalism that, sadly, I quite lack on this blog. I post on this blog mostly in my downtime, when I am not thinking all that hard. There are some exceptions, but that's mostly what I do here.

I also use a blog as a means for advertising pieces of mine that might not otherwise have much exposure - who is going to look at the Madrid Revista de Libros, for example, if you're not in Spain? I subscribe, but does anyone else? For that matter, how many law professors read the TLS these days? Unless you are a big name professor, generally at a big name school, the mechanisms for distributing stuff have got very confused.

So I am a little bit embarrassed to have this infotainment blog posted up there along with all those other professionally serious blogs. Also, I'm embarrassed not to have some clever name for it. Balkinization - there's genius for you! The only thing that crossed my mind was "Andersonville," and that seemed to convey the wrong message, somehow.

My impression, too, is that there are a lot of quite serious professors who, for good reasons, stay well away from blogging as, well, a waste of time. They're probably right - it is uncannily similar, is it not, to that scene in Steve Martin's LA Story, where he and some friend go roller-skating through an LA art museum - "performance art, I call it," "goofing around, she calls it." Or something like that.

Q: What does the Simpsons Movie have to do with the TLS?

A: Nothing to speak of - except that I am writing the TLS review! Renee and I are about to go off and see it, my beloved wife Jean-Marie having bowed out. Also, if you are not a TLS subscriber, you should be ... go here.

(Update. Alas, the review I wrote of the Simpsons wound up mixing up, in all the wrong ways, the summer comedy movie review with a serious discussion of out of control prosecutors engaged in all sorts of stuff that would work well in a Simpsons episode but in fact is tragic in real life - the mad, wicked prosecutor in Oregon, for example, and his butt swatting sexual assault charges. It made for an illmixed review, unfortunately, and I agree with the TLS editor that it couldn't really run. Too bad, but the editor is right. I may run some bits of the review here, but it really wasn't ready for prime time publication, as it were. It's actually quit helpful to have editors who will tell you that, straight out.)

Heinlein's Moon is a Harsh Mistress, the market, and ecological scarcity

One side comment to the posts below celebrating the centenary of Robert Heinlein's birth. A number of the articles pointed to his The Moon Is a Harsh Mistress as a pivotal text in the libertarian movement (broad libertarianism, not merely its narrow electoral party). This is of course correct. A number of these essays likewise correctly point to the free market ideas of that novel - in particular, There's No Such Thing As A Free Lunch.

Does it bear pointing out, however, that The Moon Is a Harsh Mistress ultimately revolves around the failure of market mechanisms? That the revolution that the Professor urges is necessary not on account of markets but on account of a much more fundamental, deeply Malthusian ecological crisis? I read the thing a couple of years back, for the first time since childhood - out loud to my daughter, no less. What caught my attention especially was the Professor arguing that not only could Luna not afford to ship grain to Earth at a "fair" price - because of the increasing scarcity of water on the Moon, it could not afford to so at any price. Grain shipments in effect shipped fantastically scarce Lunar water to Earth, and it could not be shipped the other way. There could only be a short term market in grain=water. Mike confirmed the worst in a series of computer projections.

The central political premise of the book, in other words, the fact which above all argued for violent and bloody revolution, was an ecological premise, a premise of ecological scarcity, not the market as such. This is hardly to denigrate the book's market oriented libertarianism, but the central political fact, at least as far as the Professor was concerned, was not in order to promote a market but in order to end one that would end in ecological catastrophe. Which was, by the way, surely a reason why so many of my radical environmentalist friends of the 70s and early 80s - Amory and Hunter Lovins, for example - were fans of the book.

Update: Wtanksley in the comments makes a good point:

Free market and ecological preservation/conservation are not contradictory. Historically, the worst abuses of the environment have taken place in dictatorships of one stripe or another. When the people who profit or lose from the use of a resource own and control the resource, they tend to shepherd its use.

In the book, the environmental disaster was caused by a government that owned all the property, set all the laws, and ruled all the people without consent. That's pretty much the extreme version of communistic socialism.

WSJ editorial on sending Al Qaeda in Iraq to Guantanamo

(Update, Sunday, July 29, 2007. Welcome Instapunditeers, and thanks as always to Glenn for the Instalanche! I will take a moment when I get home to clean up some grammar and add some links for further reading to the post below.)

The WSJ editorializes today in favor of sending captured Al Qaeda in Iraq senior leaders to Guantanamo. Open link, July 26, 2007, Thursday, editorial page, here. Although I often agree with WSJ editorials on issues of counterterrorism, I do not in this case.

I have endorsed, on this blog and in a recent speech-essay in the Fordham International Law Journal, at SSRN here, closing down Guantanamo. In that regard, I guess I agree with senior officials in State and DOD, criticized by the WSJ editorial, who favor shutting down Guantanamo as a good will gesture. I don't think of it so much as a good will gesture as cutting certain losses. It is highly doubtful that we are gathering significant intelligence from those we have held for years at Gitmo, and that must be set against the public relations damage that its continued existence creates with the rest of the world.

I am not, I should say, one who worships at the altar of Pew global opinion surveys of anti-Americanism. In general, those surveys are exceedingly crude in the measurements they purport to make. Worse, they fail to address such crucial questions as to whether it is really possible for the US to be loved; whether the US was ever so much loved as the nostalgia-types seem to think; whether being loved in the world actually improves the safety and security of the US or whether that is simply an assumption; and above all the "if-you-give-a-mouse-a-cookie" incentive problem, the natural tendency that if you ask someone what you have to do in order to be loved, they will inevitably move the bar higher and higher. So my acknowledgment of the public relations costs is a limited one. As part of that - again limited, but worth mentioning - is the role that Guantanamo plays in mobilizing elites within the United States itself against the very idea of a war on terror. If there were still evident, serious gains in intelligence from Guantanamo at this point, it wouldn't take much to override the public relations damage, but those intelligence gains appear to be largely, very largely, in the past.

The virtue of Guantanamo today is a different one - keeping people out of the fight who would indeed violently return to it. I acknowledge 100% what the WSJ notes about the nature of the detainees held at Guantanamo since it opened:

The Combating Terrorism Center at West Point recently examined the non-classified evidence about Gitmo detainees, and in a new report concludes that 73% were a "demonstrated threat" to U.S. forces. No less than 95% were a "potential threat." According to the Pentagon, at least 30 former Gitmo detainees have returned to fight Americans after deceiving U.S. interrogators and being released.

One of those detainees, Abdullah Mahsud, was captured in northern Afghanistan in late 2001, held until March 2004, and upon release immediately became a Taliban leader in southern Waziristan near the Afghan-Pakistan border. In October 2004, he directed the kidnapping of two Chinese engineers, one of whom was killed during a rescue attempt. This week he blew himself up with a grenade rather than surrender to Pakistani troops who had him surrounded.

Moreover, the WSJ is right to point out that critics of Guantanamo fail to explain what the alternative is, other than to bring the detainees into the regular criminal justice system. That seems like a good idea to Human Rights Watch - see its letter re the Goldsmith-Katyal national security court proposal below, blithely informing us that the regular criminal justice system has worked just fine in dealing with terrorists. It has not, as Ben Wittes has pointed out several times, seemed to many other observers to have worked out so well so far. The 1993 WTC bombing trials or the Massaoui trial, for example, seem paradigmatic of why the ordinary court system can't handle serious terrorism cases.

***

(Let me add something not in the original post.) Our ordinary court system is rightly designed not merely to meet some genuinely bottom-level constitutional or human rights minimum. What it takes as minimums at least partly accepts the idea that some of our ordinary criminals can be deterred and even reformed and that we should not in every instance descend to the lowest human rights denominator in how we treat those who either violate society's legal rules or are alleged to have done so. It is unlikely that a society as large and heterogeneous as the US could ever go with the Scandinavian reform model of prison furloughs and gradual reincorporation into society and so on - those humanitarian measures depend in large part on a behavioral consensus in society that even criminals share - and notice how badly those humanitarian protections have served in Scandinavian societies when, as in a multicultural setting, such consensus is not present and is instead exploited. And God knows American society is far less committed than it should to reform, rehabilitation and constructive change for inmates and prisoners. Worse, over decades the US has been committing more and more power into the hands of prosecutors - unaccountable prosecutors rather than judges, and telling the citizenry to rely not on the rule of law, but on prosecutorial conscience and discretion.

Our society, that is, already is far too prosecutor-dependent than a free society should be. Our standards for the treatment of our ordinary accused and ordinary convicted criminals are too low, not too high. But in the case of terrorism - dealing with people for whom the usual rational calculations of criminality do not work, where they cannot be deterred, where after-the-fact investigations and trials are just that, after the fact, and where the possibilities of innocent loss of life are so great, along with its spinoff effects on how ordinary life is conducted - we are not morally obligated and rationally cannot afford to offer criminal law protections that rise above certain constitutional and human rights minimums and which presume rationality, deterrence and even a certain amount of humanitarian rehabilitation.

We are not legally obligated to do so, we are not morally obliged to do so, and we shouldn't do it. But at the same time, we should not lower the standards for our existing criminal justice system, for all its participants, the ordinary criminals and the terrorists - on the contrary, we ought to be raising the standards of that system, strengthening both protections against false accusation and improving the treatment even of those justly convicted. Mingling counterterrorism justice and ordinary justice over time has the effect of both empowering terrorists and lowering the standards by which we treat ordinary criminals - consider, as an example of this trend, the deployment of the Patriot Act - promised and sold to the public as a special measure against terrorism, and yet the use of its provisions even against heinous but nonetheless otherwise ordinary crimes as child pornography. We should not be mingling ordinary criminal justice and counterterrorism in this way.

But bringing counterterrorism cases from Guantanamo into the ordinary criminal justice system does exactly that - and the result is either what Representative Nadler quite astonishingly urged in hearings recently (here, around the 51 minute mark) when he endorsed the idea that, even if captured on September 10, Mohammed Atta sould not have been interrogated, even at the cost of September 11 and the WTC coming down. Or else it is a de facto expansion of prosecutorial power and discretion to address the demand for public safety, police and prosecutorial power necessarily hugely expanded but without, remarkably, any reason to think that such "after the fact" actions would actually increase safety. It is a proposal for the worst of all worlds - a bigger police state with no increase in safety, a lowering of standards in the regular criminal justice system to try and deal with terrorism cases that simply don't belong, and no reason to believe that terrorism has been prevented up-front. I address this briefly in a piece in the New York Times Magazine, from last year, pdf here.

***

So the ordinary criminal justice system does not necessarily strike observers who are not already committed to it as the acme of counterrorism as such a good idea. But if not Gitmo or the ordinary criminal justice system - well, what and where? Because make no mistake, unless the US adopts a de facto policy of immediately killing rather than detaining - foolish, from an intelligence standpoint, quite apart from its morality - we will detain people and we will have to decide what to do with them, and we will conclude, HRW notwithstanding, that some of those people will not be triable within the regular criminal justice system.

My own conditions for closing Guantanamo include the stringent and frankly unlikely to be met requirements of creating a genuine alternative with its own system of civilianized preventive detention, a national security court, and other conditions not likely to be met as a condition of closing Guantanamo. Merely doing what the anti-Guantanamo activists want and closing the place by transferring them to the criminal justice system is a non-starter in my view. Indeed, if the option is closing Guantanamo and transferring the detainees to the regular criminal justice system, it would actually be better to simply let the vast majority go free - I don't include here the so-called high value detainees - even though many of those let go pose a considerable risk of future terrorism and civilian deaths, not to mention ... well, war against the United States and the lives of our soldiers. It's not just and it's not prudent, and it will almost certainly cost (more) lives; those for whom pretty much all those Guantanamo detainees are just a bunch of shepherds sold by the Northern Alliance might want to start keeping score on the civilians killed as they are released - along with dead American troops.

That said, the transfer of Al Qaeda in Iraq detainees to Guantanamo raises important legal and policy questions about Iraq as a war zone. In general, I do not favor transferring detainees in the Iraq conflict out of Iraq. It is not under all circumstances prohibited by the laws of war. The 4th Geneva Convention prohibits the forcible transfer of "protected persons" out of the occupied territory, whether into the occupier's territory or that of any other country. (Art. 49) However, far from settling anything, this merely brings us back to two highly familiar questions that have to be answered prior to applying Art. 49.

First, is this an occupation, and the US still an occuping power, in the sense of the 4th Geneva Convention? Or has the return of Iraqi sovereignty, even one which cooperates with US forces, ended the occupation and the formal application of occupation law under the 4th Geneva Convention? I would think that as a matter of law, occupation law no longer applies, although there are certainly arguments that can be made the other direction. (Those arguments, by the way, in large part revolve around the weight one gives various facts and circumstances, and people should be very cautious about ruling the other side's argument out of bounds as bad faith.)

Second, is an Al Qaeda in Iraq detainee, a non-Iraqi in particular, a "protected person" within the meaning of the 4th Geneva Convention? (And bearing in mind that Protocol I concepts of "civilian" do not apply to the US as treaty law, having not joined the Protocol.) Obviously, this question has gone round and round in the whole war on terror debate. It can be summarized this way: if an Al Qaeda in Iraq detainee is not a POW by reason of flunking the requirements of the 3rd Geneva Convention on POWs, does the person then somehow or even automatically gain the protections of the 4th Geneva Convention covering civilians and occupation? This has been a long argument, which I won't rehash here, except to say that my view is overall that held by the US government, that if, as combatant, you flunk the provisions of the 3rd Geneva Convention in Article 4 because, for example, your organization systematically violates the laws of war, you do not thereby qualify for arguably even better treatment under the 4th Geneva Convention. That would be a perverse result, plainly; in any case, your status is determined under the 3rd Convention, as an unprivileged belligerent. So it would not be per se illegal, as a violation of the 4th Convention, for the US to send persons it has determined to be unprivileged belligerents - and it would be a good idea actually to hold an Article 5 hearing, by the way - under the 3rd Convention for detention outside Iraq, in Guantanamo or elsewhere. (PS. There's a lot of discussion of those issues on this blog - look under the laws of war tag.)

Whether it would be a good idea as a matter of policy - legal policy as well as politics - is another question. Overall, I think it is a good idea to turn these guys over to the Iraqis and let them deal with them. That proposal has its own problems, of course, but short of letting them go free, the US government is not likely under any circumstances to win any praise from groups like Amnesty or HRW. If the US sends them Guantanamo, it will get slammed, if it turns them over to the Iraqis, it will get slammed, if it holds them in Iraq, it will get slammed for having recreated Guantanamo-in-Iraq. There's no pleasing the human rights critics - if Bush is for it, we're agin' - so why try?

Yet if the US is serious about Iraqi sovereignty, then as a matter of policy, they are the people who should deal with them. Sending them to Guantanamo merely keeps the US forever in charge of crucial matters of security in Iraq and pours gasoline on the fire - we have heard that argument elsewhere, have we not? If you think, as the WSJ does, that the United States is engaged in a unitary global war on terror - a unitary, single global war on terror in the legal and not just strategic sense - in which detainees in Iraq are legally no different from, say, someone detained in Somalia or O'Hare or anywhere - and Guantanamo is where you send all such detainees to keep them out of the fight, then, yes, it makes perfectly good sense to seriously consider, at least, sending Al Qaeda in Iraq to Guantanamo.

***

But that's not in fact how the legal and policy situation is evolving, starting with things like the Military Commissions Act of 2006. The WSJ may prefer that the Bush administration pursue a purely "war" strategy, as both a legal and strategic matter, but the Administration, for very good strategic reasons, has not done so - not from the moment, at a minimum, when the definition of crimes for which military commissions could punish people departed from defining a combatant in traditional laws of war terms as "taking active part in hostilities" to domestic law terms of "material support for terrorism." Material support, conspiracy, aiding and abetting - none of those is a traditional criterion for defining combatancy under the laws of war, yet they are indeed crucial from an "intelligence" approach to counterterrorism law. The Administration was strategically correct to move that direction, but it means that it has, functionally, given up the idea of a "legal" global war on terror in favor of multiple legal regimes that include laws of war, ordinary criminal law in some circumstances, and an emerging - but as yet very inchoate - "intelligence" conceived body of new domestic counterterroism law that includes such concepts as "material support," but also includes things like the idea of a civilian national security court and other things besides.

That shift -towards a counterterrorism law defined not by laws of war, nor by ordinary criminal law, but instead by a new domestic legal regime set by counterterrorism intelligence concepts - means that it would be a pointless exercise, and indeed provocation, for the US to transfer Al Qaeda in Iraq to Guantanamo. If your point is to provoke, by underscoring that the global war on terror is indeed a legally unitary war globally, then fine, provoke - this is in effect what the WSJ calls for. But the Administration should not do so because it is the wrong provocation - the Administration has been moving away from the conception of a unitary war on terror as a legal matter to accepting and imposing different legal frameworks on different parts of the strategic war on terror. That means war and the laws of war in some circumstances, criminal law in some circumstances, and the gradual evolution of a law of "intelligence" counterterrorism in still others.

The consequences is that if Guantanamo is needed in the future, it is needed for something quite different and indeed far more controversial than unprivileged belligerents taken on an undisputed battlefield in the ordinary and traditional sense. Guantanamo, if needed in the future, is a matter of a place to hold detainees - as Ben Wittes has described - who are aliens captured abroad in intelligence captures, whom we have insufficient evidence and ability to try in a regular US court trial but whom we cannot afford to let go free. Perhaps we should recreate such a facility in the US proper; the point is, that is the category of detainee the real debates should be about. The laws of war provide perfectly acceptable answers for those taken on ordinary battlefields in Iraq, including Al Qaeda in Iraq.

The US is, in other words, in fact drawing distinctions between kinds of detainees, because it is not, in fact, treating counterterrorism as a single, unitary, global war on terror - yes, a single, unitary struggle in the strategic sense, but no, not in the sense of a single legal standard for every situation and circumstance. The US does functionally recognize differences between people taken in New Jersey and people taken in Iraq and people taken in Yemen, Somalia, or elsewhere. Maybe that is a profound strategic mistake, as the WSJ would presumably believe. My own view, however, is that it is the better legal and strategic view - and I say this as a strong proponent of the "war" approach to Islamist and jihadist terror, someone who rejects firmly the "it's all criminal law" approach, someone not urging a "softer," "let's improve global public relations" approach to counterterrorism. Counterterrorism requires an honored place for abduction and assassination, along with many other things. Counterterrorism policy, as a matter of how it is carried out under the rule of law, will have to set up distinct legal regimes to reflect different forms of action ranging from war to criminal law enforcement to covert action, and to these distinctions will have to take into account the origins and status of various kinds of detainees. Those taken on ordinary, traditional battlefields, such as Iraq, even when they are unprivileged belligerents such as Al Qaeda in Iraq, are best dealt with in those terms -in that specific case by application of the ordinary laws of war - and in situ, even if the laws of war permit greater latitude than that.

The most compelling reason for that? Because it is better, at this point, to avoid an unnecessary fight over the laws of war in this case - one that is specific to the circumstances of the war in Iraq. The much bigger, much more important argument will be there in any case, the argument over what to do with detainees for whom there is no obvious war zone, no Iraqi government, no US presence, no actual 'war' in the strictly legal sense. There is a pretty easy solution in Iraq - keep them in Iraq and don't pick an unnecessary policy and legal fight. Keep the powder dry for the much bigger fight over future detainees who don't come from Iraq or Afghanistan, and who threaten terrorism within the United States itself. That policy and legal battle is almost certain to come, and probably sooner rather than later.

*** From the WSJ editorial:

The question is what to do with him [Khalid Abdul Fattah Dawoud Mahmoud al-Mashadani] and other al Qaeda figures who are being captured in increasing numbers in Iraq. One possibility is to turn him over to Iraqi security forces, who would not read him any Miranda rights. He would probably be tried and hanged. This would serve the cause of justice because Iraqis are the main victims of al Qaeda in Iraq's suicide bombings. But handing Mashadani over to Iraq might also eliminate him as a source of intelligence, even as we learn more about al Qaeda in Iraq and thus know better what to inquire about.

His other natural destination is Guantanamo, where the U.S. houses other enemy combatants in the war on terror. This would guarantee his safe treatment, while also keeping him available for further interrogation. Just as important, the transfer would signal that Gitmo continues as a valuable antiterror tool.

We're told, however, that some senior officials at the State and Defense Departments are opposed to such a transfer. They want Mr. Bush to close down Guantanamo as a goodwill gesture to the rest of the world, and they believe that transferring al Qaeda in Iraq detainees there might make that harder to do. They may be right, but in our view that's all the more reason to send the detainees to Gitmo.

While Guantanamo is clearly disliked around the world, those who want to close it have yet to offer a suitable alternative. Transferring its detainees to some place further offshore would mean spending billions of more dollars on a new facility, while facing the same criticism from antiwar activists. Gitmo is also territory under U.S. control, which means it avoids the complication of embarrassing allies in Afghanistan, Iraq, or somewhere else (as in the "secret CIA prisons" in Europe where KSM and other 9/11 plotters were allegedly kept before their transfer to Gitmo in 2006).

The legality of Guantanamo has also been upheld by the Supreme Court, which isn't true of any other foreign outpost. The High Court has agreed to hear another Gitmo-related case in October, and it's not a bad idea to remind the Justices that Guantanamo harbors terrorists captured on the current battlefield while trying to kill Americans. That fact might give them pause before they supplant their own war judgment for the Commander in Chief's and make it easier for these killers to return to the war.

The real goal of Guantanamo's critics is to have these killers treated like common criminals in American courts. That would make it impossible to deny them the full array of U.S. legal protections. In many cases, prosecutors would lack enough evidence to convict them under normal trial rules, especially if much of the evidence were classified. Soldiers don't build a criminal case like "C.S.I." sleuths when they're snagging an enemy on the battlefield while also trying to avoid getting killed.

The result of bringing Gitmo detainees into U.S. criminal courts would inevitably be their widespread release ...

The TLS of July 20, 2007

It won't mean very much, I suppose, unless you subscribe or have easy access to a copy, but this week's TLS of July 20, 2007 is a very fine issue on many different matters. Claude Rawson's cover essay on wit in the 18th century is terrific. Likewise Adrian Tahourdin's review of Pierre Bayard's slightly scandalous argument that it is okay to opine on books we haven't read. (Let me add, however, as a sometime TLS reviewer, that I have never reviewed a book for the TLS or anywhere else that I haven't read cover to cover - on the other hand, I've never been a weekly reviewer, "reading" and cranking out something every few days - I have always had the luxury of taking my own sweet time. This has sometimes led to abuse of the privilege of time - and I admit I am late on a couple of things for TLS now - but I can say I've read everything I've reviewed.) And Justin Belplate's essay on Milan Kundera's The Curtain is also very thoughtful. It's a terrific issue.

Thinking about book reviews ... I once received an invitation, which very regrettably I wasn't able to follow up, to join a very special book club - one in which you discussed books of which you had read only the reviews, not the actual book itself. A stunningly good idea - and honest, too!

Multiculturalism is ...

... the elite management of group social conflict (and the solicitation of such conflict to be managed by such elites) through the conversion of sensibility, chiefly resentment, founded upon group identities of ethnicity, race, gender, and religion into universal and legally and bureaucratically enforceable claims of human rights; with the consequence of displacing the hithertofor liberal content of those rights while yet still proclaiming a universal liberal basis for these new multiculturalist, sensibility-resentment-based claims of rights.

(Multiculturalism is not really capturable in a one sentence definition, of course, but I thought I'd give it a try. No doubt I will amend it down the road.)

Larry Solum's Legal Theory Lexicon on 'legitimacy'

Larry Solum (that's Lawrence B. Solum, John E. Cribbet Professor at the University of Illinois College of Law, Champaign and Professor of Philosophy, University of Illinois, to you, thank you very much - one of our leading jurisprudentialists and, I'm pleased to say, a dear friend over several decades) publishes, as part of the well-known Legal Theory Blog, a gradually expanding dictionary of basic concepts in legal theory called the Legal Theory Lexicon. It is of immense value not just to students - it is aimed at first year law students with an interest in theory - but also to professors and others looking for a short but always intelligent and straightforward account of key concepts and terms, ranging from legal philosophy to law and economics and so on.

In his most recent post, Larry takes up that question so vital in discussions of international law - certainly it is at the center of much of my own work whether in law narrowly or such broader areas as international organizations, global civil society, the UN, etc. - what is legitimacy?

As Larry himself would say on the Legal Theory Blog, highly recommended! Here is a bit to give you the flavor:

Normative and Sociological Legitimacy

Let’s begin with the distinction between normative legitimacy and sociological legitimacy. On the one hand, we talk about legitimacy as a normative concept. When we use “legitimacy” in the normative sense, we are making assertions about some aspect of the rightness or wrongness of some action or institution. On the other hand, legitimacy is also a sociological concept. When we use legitimacy in the sociological sense, we are making assertions about legitimacy beliefs--about what attitudes people have. Although these two senses of legitimacy are related to one another, they are not the same. That’s because an institution could be perceived as legitimate on the basis of false empirical beliefs or incorrect value premises. The opposite can be true as well: a controversial court decision (Roe, Bush v. Gore, etc.) could have been perceived as illegitimate, even if it had been a legitimate decision.

Conceptions of Legitimacy

Concepts and Conceptions

The distinction between normative and sociological legitimacy is important, but, by itself, it doesn’t get us very far. What does “legitimacy” mean? How is “legitimacy” different from “justice” or “correctness”? Those are deep questions—deserving of a book-length answer. My general policy in the Lexicon series is to steer a neutral course—avoiding controversial assertions about debatable matters of legal theory. But when it comes to legitimacy, it is difficult to stick to this plan. The difficulty is not so much that legitimacy is the subject of a well-defined debate; rather, the problem is that the concept of legitimacy is usually ill-defined and undertheorized.

So here is the strategy we will use. Let’s borrow the concept/conception distinction for a starting point. Let’s hypothesize that there is a general concept of legitimacy but that this concept is contested—different theorists have different views about what legitimacy consists in. Some theorists think that legitimacy is conferred by democratic procedures; others may think that legitimacy is a function of legal authorization. Let’s take a look at four different notions of legitimacy ....

Ben Wittes contrasts the Leahy-Specter habeas legislation and the Levin proposal for detainee hearings

My Hoover Institution colleague Benjamin Wittes' new TNR online column continues his examination of proposals to amend the Military Commissions Act and related legislation that were passed under the last Congress. The current column contrasts two legislative proposals, one by Senators Leahy and Specter that would give the detainees at Guantanamo habeas corpus rights, and the second by Senator Levin that would expand the judicial protections in the current combatant status review hearings. Ben's bottom line is that the Leahy-Specter proposal is merely another Congressional punt - essentially dumps issues that ought to be set out by Congress into the laps of the courts without substantive guidance - a bill he rightly says should be called the "Leave It To Justice Kennedy Act." Levin's proposal, by contrast, while not without problems, is a serious, substantive one that ought to serve as the basis for negotiation and compromise - not the current veto threat waved by the White House - with the executive. Some excerpts:

***
In introducing their bill on Guantánamo Bay detentions earlier this year, Senate Judiciary Committee Chairman Patrick Leahy and ranking member Arlen Specter announced that they intended it--in Leahy's grand words--"to restore the Great Writ of habeas corpus, a cornerstone of American liberty since the founding of this Nation." The bill, Leahy said, was an effort to "amend last year's Military Commissions Act, to right a wrong and to restore a basic protection to American law."

Translation: The bipartisan legislation aims to kick the question of what to do about detentions at Guantánamo to the courts so that senators don't have to make hard choices.

The so-called Habeas Corpus Restoration Act of 2007, now awaiting action on the Senate floor, is the darling of human rights groups and liberals offended by the Bush administration's detention policies but lacking any idea of a better way to handle the people the government believes to be sworn enemies of this country. The bill is emotionally satisfying to administration critics because it undoes something the administration was keen to accomplish in the MCA last year: stripping the courts of jurisdiction over the hundreds of lawsuits filed by detainees at the base. Reinstating this heap of lawsuits would put pressure on the administration to clean up its act, as the suits did before the MCA dumped them out of court. But it would do it without requiring senators to think too hard about what a sensible policy might actually look like. Were the bill honestly named, it would be called the Leave it to Justice Kennedy Act.

Indeed, putting aside all of the rhetoric about the Great Writ, cornerstones of American liberty, and the founding of the nation, the bill does virtually nothing to shape the law in this murky area. Can the administration lock people up as unlawful enemy combatants? If so, what level of due process are detainees entitled to? The Habeas Corpus Restoration Act doesn't say. All it does is allows the courts to hear cases under whatever rules might happen to exist--or whatever rules the courts might happen to relieve Congress of the burden of creating.

The frank truth is that the habeas question is a sideshow. Whether or not the courts have jurisdiction over Guantánamo --and the Supreme Court may well decide that it does even in the absence of congressional action--they can't fix the core of the problem. The real question is the one this bill self-consciously avoids: What should the government do with an alien abroad whom it believes to be too dangerous to let loose yet whom it cannot charge with a crime? That's a question for Congress, not the courts.

***
This question brings us to Section 1023 of the defense authorization bill, the bill that the Senate shelved this week when Republicans blocked Democratic efforts to use it to force a change in Iraq policy. Section 1023 is the creation of Senate Armed Services Committee Chairman Carl Levin, who has also cosponsored the Leahy-Specter bill. It hasn't gotten the attention the habeas bill has garnered, partly because it doesn't have a pretentious name that evokes the great traditions of American law. But, though drably titled "Procedures for Combatant Status Review Tribunals; Modification of Military Commission Authorities," Levin's proposal is a serious piece of legislation--one that does more than toss a hot potato to the courts or yap about closing Guantánamo. It's a real, albeit far-from-perfect, effort to imagine law that might govern long-term detentions in the war on terrorism.

So predictably, the Bush administration announced earlier this month that it "strongly opposes" the section and declared that if it were part of a final bill, the president's "senior advisors would recommend that he veto the bill." This is foolish. With the Supreme Court breathing down its neck, the administration has to cut itself a deal that puts itself on a stronger legal footing. The flaws in Levin's proposal are altogether fixable if the administration engages seriously it.

Levin's proposal starts with the key concession to reality that liberals and human rights groups are going to have to make: that there are some people this country is going to hold for a long time without charging with crimes. Put simply, Levin's language would validate in law the administration's idea of holding Al Qaeda and Taliban fighters as "unlawful enemy combatants"--and it doesn't put a time limit on these detentions. Moreover, it would validate the essential mechanism the administration has erected to determine whether a detainee is properly categorized as an enemy fighter: panels known as the Combatant Status Review Tribunals.

On the other hand, Levin's bill would also make these tribunals far more judicial than the ones the administration holds under current authorities. It would make the presiding officer a military judge. It would give lawyers to detainees, who currently only get non-legal assistance from a "personal representative." It would bolster the detainee's ability to present evidence of his own and to attack the government's evidence against him. Detainees' lawyers would have access to the classified evidence against their clients, and detainees would get a summary of that evidence "that is sufficiently specific to provide the detainee a fair opportunity to respond."

***
... [O]n the big picture, Levin's spot on--that is, he's envisioned a legal structure for the detention of people who are not prosecutable as criminals yet who don't fit comfortably into the traditional premises of the laws of war either.

In my last column, I argued that the administration is likely to get thrashed in the next round of Supreme Court litigation over Guantánamo--litigation the High Court has just agreed to hear next term. The only viable way to avoid this fate, which could have real negative consequences for the executive branch, is to create a realistic statutory legal framework for handling detainees so that the courts have something to defer to. Levin's bill is a first draft of such a framework.

An administration that was serious about preserving its ability to detain the enemy would recognize in it a partner and an opportunity. A Senate interested in actually doing its job--rather than shunting its job to the courts--would see this bill, not the Habeas Corpus Restoration Act, as the center of the action.

Benjamin Wittes is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.

Why do the Democrats want to keep the flying imams flying?

So asks Instapundit, taking up reports that Democrats in Congress are insisting on killing off legislation offered by Rep. Peter King of New York that would offer protection against civil liability for a private citizen reporting in good faith a terrorist threat or concern that turns out to be false - the so called John Doe tipster protection.

(Update. After sustained wrangling, Congressional Democrats finally agreed to leave the tipster protection in the bill. Why they ever would have resisted it is quite beyond me.)

To the argument that there is no reason to offer such protection because the idea that someone might actually get sued is merely theoretical ... well, the infamous imams who, it would appear, deliberately created a (in my view prosecutable) provocation on an airline last year, one seemingly orchestrated with the Islamist front-posing-as-civil-rights organization CAIR, have already initiated a lawsuit against the private citizen who alerted the authorities. There's someone, in other words, who is already the target of an actual lawsuit for a good faith tip. It's not a theoretical possibility at all. CAIR's effort appears to have been aimed in part precisely at causing people around the country - otherwise urged by signs and announcements in every form of mass transit to stay vigilant and report suspicious behavior, to consider carefully that it might lead to personal liability in a lawsuit, even if done in perfectly good faith.

The most stunning part of this is not actually the Congressional Democrats. Their commitment to counterterrorism is modest at best. It is, rather, that the Bush administration - you know, the wicked, torturing, secret detentions, etc., etc., Bush administration - has quite refused to respond to a litigation strategy that is, before our eyes, dismantling a pillar of domestic protection against terrorism - people unsure of what they are seeing, but being willing to report it to the authorities. After all, the counterterrorism experts tell us, it is the accumulation of little reports and bits that people see but which they can't be sure of, put together with what other people have also said with equal uncertainty, that supposedly allows domestic law enforcement and intelligence to locate the real threats. Yet a lawsuit, and the threat of more to come, based on an incident seemingly arranged for the purpose, of radical imams in the United States deliberately provoking airline security, has the ripple effect of undermining that structure of intelligence gathering and reporting. That the Bush administration would not recognize this as a blow aimed at even such modest domestic counterterrorism efforts as this country now makes, and respond, is quite staggering. It is a testament to just how in thrall the Bush administration is to multiculturalism domestically - however it behaves abroad, at home, it coddles the front organizations, all soft and gooey, and refuses to take them on, even as they successfully pursue a strategy of dismantling domestic counterterrorism mechanisms of undeniably (unless you are a Congressional Democrat, it seems) immense importance.

The rule CAIR wants, of course, it would appear is no reporting of suspicious activities at all. Naturally. The rule, however, that Congressional Democrats seem to want is, "Well, sure, report - but better be damn sure it's true, otherwise someone will sue your ass." Which is to say, of course, don't report it. For a while, under Bill Clinton, the Democratic Party seemed like it was beginning to understand the role of incentives in policy. But you really have to believe that terrorism is not an important threat, it seems to me, to think that this is a desirable set of incentives. And for a party that seems intent on bringing counterterrorism home and making it a matter of a defensive, police-oriented, law enforcement driven struggle, it is hard to see how this could possibly make sense. Let's get off offense against terrorism, go on defense within the United States - and then make ordinary people liable - and liable to being publicly labelled as racists, too - when they try to provide the information we the government say we need? It's a pretty powerful statement of just how sigificant a priority - not - Congressional Democrats think terrorism actually is.

I say, let them vote in Congress - and then make sure that ads ensure that pretty much every voter knows how his or her representative voted on the question. It's a leading indicator of priorities, and should be offered to the public that way.

Here at Instapundit (pointing to Powerline):

***
KEEPING THE FLYING IMAMS airborne. I really don't understand what the Democrats think they're going to accomplish here. It certainly suggests that they don't think major terrorist attacks are imminent, since if that happens and it turns out someone didn't report something, the blowback will be fierce. In that regard, at least, I hope they're right.
***

Like Professor Reynolds, I find this incomprehensible under any rational security calculation or even partisan political calculation by the Democrats themselves. Do Congressional Democrats really think this is what the American people think? And why wouldn't Republicans be making this a centerpiece of election advertising? Powerline has extended comment, here:

***
Friday's excellent Investors Business Daily editorial on the Democrats' burial of the John Doe bill warrants attention:

"Democrats are trying to find any technical excuse to keep immunity out of the language of the bill to protect citizens, who in good faith, report suspicious activity to police," said Rep. Peter King, R-N.Y. "I don't see how you can have a homeland security bill without protecting people who come forward to report suspicious activity."

Neither do we, and certainly the actions of the six imams last November qualified as suspicious. While at the gate, according to police reports and witnesses, the six made anti-American comments and provocatively chanted "Allah, Allah, Allah." On the plane, they asked for seat-belt extenders with heavy metal buckles, even though none was obviously in need of them, and then dropped them at their feet.

Last time we checked, there was no tenet of Islam that required them to leave their assigned seats shortly before takeoff, a violation of federal rules, and occupy the exit and entry rows of a jet aircraft, a pattern associated with the 9/11 attacks. All six moved — two to front-row first class, two in the middle on an exit row and two in the rear of the cabin.

Was it racism to report these actions? Stereotyping? Heather MacDonald of the Manhattan Institute notes: "A stereotype in this instance is nothing more than a compilation of facts about who has attacked American interests in the past and who, given what we know, is most likely to do so in the future."

The editorial stops short of asking why the Democrats are blocking the John Doe legislation. Recall that the legislation arises in the context of the case of the flying imams. Recall also that the case of the flying imams is a production brought to us by CAIR, the Islamist front group that holds itself out as a civil rights organization. The attorney representing the flying imams in their lawsuit in Minnesota federal district court is an officer of CAIR's New York chapter.

The Democrats' opposition to the John Doe legislation is consistent with the alliance between radical Islam and the American left. It is an alliance that one can see embodied in the person of Minnesota Fifth District Rep. Keith Ellison, America's first Muslim congressman. Ellison had spoken at the conference of the flying imams in suburban Minneapolis over the weekend before the incident giving rise to the case. If the case of the flying imams ever gets off the ground, one incidental benefit would be the illumination that the discovery process might shed on the imams' weekend deliberations.

***
See also this Rich Lowry column in the New York Post, July 24, 2007, over at RCP, here. To judge by other articles, Lowry understates the extent to which the whole imams incident was orchestrated precisely as a provocation - which the Bush administration, in keeping with its general dangerously soft "multiculturalist" stance toward issues of terrorism domestically, refused to take up despite calls for federal prosecution of the imams. See, for example, Richard Miniter's December 2006 New York Post column, here.

*** From Lowry:

July 24, 2007
New York Post, via RCP

Suing Anti-Terror Tipsters

By Rich Lowry

If you see something, hire a lawyer. Then, perhaps, you can say something.

That would be the new mantra for passenger vigilance -- replacing the ubiquitous "If you see something, say something" -- if Democrats get their way in Congress. They oppose an amendment to the homeland-security bill sponsored by Rep. Peter King (R., N.Y.), that would protect anyone from civil lawsuits who, in good faith, offers a tip about suspicious activity on mass transit.

The case of the "flying imams" prompted King's amendment. On Nov. 20, 2006, six Islamic clerics were removed from a US Airways flight in Minneapolis after passengers complained about behavior they considered suspicious. The imams prayed before boarding the plane, didn't sit in their assigned seats -- arranging themselves in a pattern associated with the 9/11 hijackings -- and asked for seatbelt extenders. Authorities questioned and eventually cleared them.

Twenty-first century America wouldn't be a boon to grievance-mongers of all varieties if such an incident didn't occasion a lawsuit. With the help of the Muslim pressure group the Council of American-Islamic Relations, the imams filed a discrimination suit against US Airways and the passengers who alerted the airline to their worries. The imams allege a "conspiracy to discriminate" against them that was "intentional, malicious, willful, wanton and callous."

This conspiracy was launched in the boarding area by "an older couple who was sitting behind them and purposely turning around to watch" them as they prayed. Then, the older gentlemen made a cell-phone call, and "while observing the Plaintiffs discreetly, he kept talking into his cellular phone." We are supposed to believe that this man was just waiting to stumble upon a few Muslims whom he could arbitrarily inform on for no purpose other than denying them their rights under the 1964 Civil Rights Act.

Obviously this wouldn't have happened if the men weren't Muslim, but fears of Islamic terrorism necessarily focus on Muslims. If the perpetrators of 9/11 and the Madrid, London, and Bali bombings had been Episcopalian, a group of strange-acting priests traveling in their vestments would warrant an extra measure of suspicion. This is not discrimination, but a common-sense reaction to the facts of life.

A good-faith response from the flying imams would have been to say, "We don't like it, but we understand." Instead they seek damages for their "fear, anxiety to fly, humiliation, embarrassment, mental pain, suffering, inconvenience and financial injury." Their agenda -- and that of CAIR -- is to make everyone ignore the association of Islam with terror that has been forged by jihadists, and to punish anyone who acts on knowledge reinforced in headlines every day.

Because we can't have police everywhere, civilian tips are indispensable. A video-store clerk alerted authorities to the Fort Dix plot after he saw a tape of men in Muslim attire firing guns -- but not before he wondered, "Should I call someone or is that being racist?" Debra Burlingame points out that an airline employee who checked in two of the 9/11 passengers didn't ask for a special search of them because "I was worried about being accused of being 'racist.'"

If the King amendment doesn't make it into law, people in such agonizing situations will have to worry not just about being called racist, but about being sued if their suspicions prove unfounded. The King amendment garnered 304 votes in the House and 57 in the Senate, but a majority of Democrats voted against it in both houses, and now key Democrats are trying to keep it out of a House-Senate conference committee.

The Democrats oppose fighting al Qaeda in Iraq, oppose key provisions of the Patriot Act, oppose President Bush's electronic-surveillance program, oppose Guantanamo Bay, oppose the aggressive interrogation of terrorism suspects, and now they oppose lawsuit-free passenger vigilance. If only they took the terror threat as seriously as that man who may have to defend his cell-phone call in court.

The Rene Char photo that is on my Bibliotheque National centenary exhibit poster

Am I the only person in the US to have a framed poster of Rene Char on the wall?

(By the way, there is a useful short, straightforward biography and discussion of Char's key works at enotes, here.)

Diario: Winding up teaching in Santiago, Chile and coming home to DC

My finance seminar at the University of Chile law school wound up on Friday night, and it was time to get started home. It would have been perfect to stay the weekend and ski, if only I were a skier. But I also have a full writing schedule awaiting me at home, things that need to get completed at least in draft before classes begin again in August, so it is time to get back to DC. Saturday was a beautiful morning in Santiago - blue skies and not the smog that had been hanging over the city, as is only too normal in the winter. Then it started to pour rain. It rained hard and cold all afternoon. Finally, in the late afternoon it all cleared up, gloriously, with fresh snow very low on the hills and a beautiful sunset. (And if I hadn't managed to bust my camera, I would have pics to post.)

I try not to get too crazy doing tourist purchases - we have just been in London and Paris, with a certain amount of discretionary spending by my wife at Agnes B and Claudia Pierlot (?). Anyway, here in Chile I have limited things to some lapislazuli earrings and chains for wife and daughter. And I found some posters this morning at the Information Center that Jean-Marie might want to use in her classroom - tourist posters of Patagonia.

***

Jean-Marie asked me to be on the lookout for the tourist posters. Thinking it over, though, sitting in the Havana coffeeshop - open wi-fi - on Avenida Providencia, if I were decorating her classroom in an all boys school, St Alban's, I would skip the tourist posters and instead go after moderately sexy advertising posters with girls not-quite-decently-dressed saying important things in Spanish. It's probably a fine line between being sexy enough to make foreign language interesting and romantic, and merely distracting. I myself think it better to err on the side of sexy distraction - but then, unlike my wife, I don't have to teach the past subjunctive to hormonally-charged adolescent males.

On the subject of gender and foreign language study, I saw several large college semester abroad-study Spanish groups in Santiago in the past couple of days. I'm not sure I would pick Santiago as a place to learn Spanish, for the same reason I would not pick Sevilla - Santiago is a lovely city, and very safe as Latin American capitals go, with very, very wonderful people. On the other hand, Chileans, like Andalucians, speak very rapidly and swallow not just terminal syllables, but whole paragraphs. My students were very nice about carefully pronouncing things when speaking with me, but I was amazed at how difficult it was for me to understand people on the street and in shops - same problem as I had in Sevilla - enough to make me doubt that I understood the language, until we went to Madrid and it was a completely different story. Anyway - I noticed that the college semester abroad programs seemed to run about 75-80% women. Very few men. Why is that? Jean-Marie and I have repeatedly noticed this in Europe, too. As Jean-Marie said back then, she more or less expected this in France, because judging by Renee's schools, French is regarded as the language for girls who have trust funds and plan to study art history. But we don't see the guys in these programs anywhere we go. Where are the guys?

***

Next door to my hotel in Santiago is a very fine bookshop, La feria del libro chileno, I think it is called. Harry Potter? Well, this and seemingly every other bookshop in Santiago has Harry Potter in the window - stacks and stacks of them - in English, all 800 pages of it, I might add. It's a testament to reading power in a foreign language here in Chile. At several of the bookstores today there are Harry Potter look-alikes, with cape and glasses and wands. Very cool. I thought of this on seeing Instapundit's posts about reviews of Harry Potter. But I'm not one of the Harry Potter fans, alas; I've thought the whole thing derivative in extreme from the beginning, and a not very interesting pastiche. Fantasy writers often seem to think it enough to be able to invent a complete alternative world; there is more to literature than that, no es asi?

This morning I walked up to the Pablo Neruda house museum over near Bellavista here in Santiago. I have mixed views on Neruda. I have always loved the 20 poemas de amor. But I've never taken the political poetry seriously - even when I was genuinely on the left, I never took political poetry seriously. I tried, heaven knows, with Brecht and lots of others, but I guess I'm a rationalist in politics - in the sense of thinking it really must be about arguments, rationality and experience, not appeals to emotions.

***

I know this runs contrary to my general idolizing of Rene Char on this blog - Jean-Marie and Renee gave me a framed poster of Char from the Bibliotheque National exhibition in Paris on the centenary of Char's birth this summer, and seeing the exhibition was one of the high points of the June trip to Europe. (Am I possibly the only person in the whole US with a framed portrait of Rene Char on the wall? And possibly one of the very few even in France?) But for all that, in fact I don't take Char's concrete politics - as a communist or as anything else - politics as policy, as policies - very seriously when expressed in his poetry. A certain sensibility, yes; but an argument - the kinds of propositional arguments that, say, Brecht seemed to think were implicit in his poetry as well as plays - no. I have always been acutely aware, on the contrary, even back in the day when I was still over on the left, even as a teenager, of something that Stendhal said about romantic love in his eponymous essay On Love - the way in which it could sweep you along through the power of emotion alone into thinking you had discovered great sublime truths and that those emotions translated to true propositions. However, he added drily, one could achieve exactly the same effect, the same feeling of transcendental certainty, for pretty much any cause - merely by listening to great Italian opera or stirring martial music. And anyway, for all my deep and abiding respect and love of Char's wartime writings, he is something of a romantic about war.

That leaves the rest of Neruda's work - the stuff that is neither the romantic love poetry nor the agit-prop. It has powerful images, absolutely. I am rather less certain I find that those works hang together to create a whole thing and not merely a collection of images. Borges (according to that new memoir by his friend, reviewed in the TLS a couple of weeks ago, here, it is an open link, hooray!) rather cattily thought that one might easily delete whole sections of Neruda's works and Neruda himself would not notice that the sections were missing. That's mean but something about it seems right.

It may also be that I am put off by the effort, by Neruda himself and by his memorialists, to present the Heroic Man of Letters and Literature. This was the stance of all of them, Neruda, Char, Camus, Cendrars, pretty much everyone, the women included, writing was power and power was masculine (yet not, never Stendhal, strikingly). The period when literature was more self-consciously masculine, all those photos of Writers Writing, a distinctly masculine projection of power which has, however, largely come to an end. Meanwhile I, and quite possibly you, dear reader, have shifted in our sense of the power of literature along with the age and demoted it. I, like those of our age (and I don't mean this ironically) believe less in the redemptive power of literature than the redemptive power of economics and social science. I don't believe in the latter, economics and social science, very much, true - but, look, would I really consider John Updike's novel Terrorist: A Novel, to be very helpful in understanding, well, you know, terrorism? Of course not. Of course, the response might be, naturally not, but that is merely because Updike is out of his depth here. What about, instead, a novel about the rise of a jihadist and jihadist sensibility in, say, Hamburg or London by someone closer to the community, wouldn't that be better, and indeed better than what the also socially remote social scientists have to say about jihad, if the purpose is to understand its sensibility?

***

I used to think so, yet increasingly have doubts. Not because I think the social scientists necessarily have much to offer, but because I have grave doubts about what is to be learned from literature about society and even sensibility beyond the writer him- or herself. But the shift away from the heroic writer to the eminently practical social scientist can also be understand in a much longer intellectual historical context, and it is surely a large part of my unease. It is, in this sense, the shift from the heroic virtues chronicled by Walter Scott to the bourgeois and commercial, distinctly unheroic, virtues of, say, the Scottish enlightenment - the time of Adam Smith, David Hume, Adam Ferguson, pragmatists all (see the marvelous essay on this very subject by Marvin B. Becker, The Emergence of Civil Society in the Eighteenth Century: A privileged moment in the history of England, Scotland, and France (Indiana UP 1994).) It is the very long term cultural and social shift although, I suppose one might argue, as the faddish newspaper discussion of the so-called "New Victorians" and "YAWNS" suggests, it has a current cognate: the rising generation, by contrast to its baby boomer predecessors, today starts from and doesn't merely finish with distinctly pragmatic, not heroic, values. Still - rewinding to Neruda - I have an abiding fondness for the 20 poemas, and an abiding nostalgia for a song version of Poema XX sung by the Peruvian Tania Libertad, a 78 single from the 1970s whose flip side was the also very lovely Cancion para una sola voz, a piece which I have gradually learned to play on cello.

(That's what I thought in the Havana cafe on Avenida La Providencia in Santiago, after leaving the Neruda museum. I've now boarded the plane back to the US, where I have papers to grade, things to write, and my wife and daughter to see.)

(PS. I'm home. And exhausted. It's a long plane ride.)

(PPS. This was my imitation of a Spectator-style "Diary" column. Hmm.)

Censorship in Spain

I noticed this on the ever-great Barcepundit, and in the interests of defending freedom of expression, I have reposted below the oh-so-offensive magazine cover. Like Barcepundit, I also published the Muhammad cartoons. Here is Barcepundit on the subject. (PS I note that Instapundit is also on this.)

Spanish judge violates freedom of expression, orders magazine confiscated

Norman Borlaug

(Update: See this opinion piece by the great Norman Borlaug, in the Wall Street Journal, open link here, Sunday, July 22, 2007.)

Well, I have long known about Norman Borlaug, now age 93, as I have long done international development work. But my kid has never heard of him nor, come to that, students at my law school. Good for Gregg Easterbrook for pointing out that Borlaug has saved more lives than anyone living today. Here from the Huffington Post:

***
Today in Washington I was in the room as the greatest living American received a medal. George W. Bush, Nancy Pelosi and others were present. But will you ever hear this event occurred? To judge from tonight's major network evening newscasts, perhaps not. Cameras were allowed at the ceremony but I saw none from the major networks, though the international press was significantly represented. And will you recognize this great man's name when I say it?

The greatest living American is Norman Borlaug, who won the Nobel Peace Prize in 1970, and joins Jimmy Carter as the two living American-born laureates around whose necks this distinction as been placed. Do you know Borlaug's achievement? Would you recognize him if he sat on your lap? Norman Borlaug WON THE NOBEL PEACE PRIZE, yet is anonymous in the land of his birth.

Born 1914 in Cresco, Iowa, Borlaug has saved more lives than anyone else who has ever lived. A plant breeder, in the 1940s he moved to Mexico to study how to adopt high-yield crops to feed impoverished nations. Through the 1940s and 1950s, Borlaug developed high-yield wheat strains, then patiently taught the new science of Green Revolution agriculture to poor farmers of Mexico and nations to its south. When famine struck India and Pakistan in the mid-1960s, Borlaug and a team of Mexican assistants raced to the Subcontinent and, often working within sight of artillery flashes from the Indo-Pakistani War of 1965, sowed the first high-yield cereal crop in that region; in a decade, India's food production increased sevenfold, saving the Subcontinent from predicted Malthusian catastrophes. Borlaug moved on to working in South America. Every nation his green thumb touched has known dramatic food production increases plus falling fertility rates (as the transition from subsistence to high-tech farm production makes knowledge more important than brawn), higher girls' education rates (as girls and young women become seen as carriers of knowledge rather than water) and rising living standards for average people. Last fall, Borlaug crowned his magnificent career by persuading the Ford, Rockefeller and Bill & Melinda Gates foundations to begin a major push for high-yield farming in Africa, the one place the Green Revolution has not reached.

Yet Borlaug is unknown in the United States, and if my unscientific survey of tonight's major newscasts is reliable, television tonight ignored his receipt of the Congressional Gold Medal, America's highest civilian award. I clicked around to ABC, CBS and NBC and heard no mention of Borlaug; no piece about him is posted on these networks' evening news websites; CBS Evening News did have time for video of a bicycle hitting a dog. (I am not making that up.) Will the major papers say anything about Borlaug tomorrow?

Borlaug's story is ignored because his is a story of righteousness -- shunning wealth and comfort, this magnificent man lived nearly all his life in impoverished nations. If he'd blown something up, lied under oath or been caught offering money for fun, ABC, CBS and NBC would have crowded the Capitol Rotunda today with cameras, hoping to record an embarrassing gaffe. Because instead Borlaug devoted his life to serving the poor, he is considered Not News. All I can say after watching him today is that I hope Borlaug isn't serious about retiring, as there is much work to be done -- and I hope when I'm 93 years old I can speak without notes, as he did.

***
What I do recall, back in the early 1980s, were complaints from environmentalists with whom I was working at the time in Colorado, that the Green Revolution was environmentally bad because it promoted monocrop agriculture and faciltated population increase. The "deep ecology" view, as I heard it at the time, was that the Green Revolution was bad because it increased the technological dependence on cereal crops, but mostly that it facilitated population growth. As Easterbrook points out, in fact the fastest way to decrease fertility is to increase wealth, including by not starving people.

Preparing for my international finance class

So, getting ready for my first international finance class at the University of Chile law school, tonight, here in Santiago. I've been reviewing notes and vocabulary - my desire is to do this in Spanish, which may be either a great idea or a terrible one. We shall see. High volatility experiment. There are a lot of finance terms that somehow didn't show up in the Spanish I learned in Peru as a Mormon missionary many decades ago - hedge fund, private equity, futures market, derivatives. Not in the Bible or the Book of Mormon, either. But I've mostly managed to locate the vocabulary for those terms - anyway, so many of them are either close cognates or else the word is borrowed from English ("swaps").

Oddly - since for most people speaking is harder than listening - my bigger problem is understanding what people are saying. Look, I never had this problem in Peru, or Colombia, or Madrid. But in Sevilla I couldn't understand 80% of it, which shocked me, and I am finding it somewhat problematic here in Santiago. Terminal syllables get dropped here, just like in Andalucia. It is more or less the way I speak English, I'm told - tends to dry up at the moment when you're about to hear it. So I am actually more concerned about being able to understand my students' questions and comments than I am being able to say things. My accent, let's face it, is atrocious. And I misuse and misapply many prepositions in ways that my wife wouldn't tolerate from her American high school students in spanish class. But I use the subjunctive pretty well - quite automatically, in fact. I can't use the vosotros form at all - just never studied it, except to read it, so I simply don't know the forms automatically. And one of the great shocks to me is the growth of the tu form - in Peru when I was learning Spanish in the mid-70s, it was all very formal. True, a professor would tutear the students, but would expect the formal from them, but I find that tough when trying to think about other things But things have really changed socially with respect to levels of formality - when I was in Spain in 2004 and used Ud., it was really as if I had insulted someone - as if they weren't good enough to be my friend.

The class for today is mostly very basic, but very essential finance concepts. The first hour is a review of the basic financial instruments and their internal legal and economic characteristics - stock, bonds, preferred stock, convertibles - also options, futures, swaps, and the concetps of a derivative instrument. It covers the fundamental economic characteristics of any financial instrument or, for that matter, any contract - the allocation of risk, return, control, and the cost of capital implied by the other three. The second hour discusses the issuance and underwriting of a security, stock specifically, in the primary market - how does underwriting work and who are the players? The third hour introduces the variety of international financial markets - capital markets, risk markets, etc., not so much as actual physical markets, but as functional markets that use the different financial instruments in different ways - eg, stock can be used as fundamentally capital raising but it can also, in other contexts, be used as an instrument in the market for control - or both at the same time.

It's cloudy and pretty cold today in Santiago - it's peculiar, one moment I'm reasonably warm and the next I'm chilled. I think it might have something do with the moisture in the air - after all, the temperature is in the 50s. I like Santiago, what bits I've seen of it, and tomorrow and Friday I plan to spend more time looking around. And I'll take a few pictures and post them.

Santiago will be dark by 6:00 pm

Which is, truth be told, very disconcerting if you just arrived as I did from mid-summer in DC.  It has been a while since I've been in winter in the southern hemisphere.   The snow capped mountains just above the city look entrancing but alas I won't have time to go up there on this trip.

I am one of those mood-light sensitive people, and winter drives me crazy in DC. I wish I were out West in the high desert with lots of sunshine even if it is cold. In the deep winter, I Have My Doubts that the sun will ever return. Heard of the Aztec New Fire Ceremony? Big worry about the sun not showing up, so sacrifice someone very, very special - rip the heart out and relight the fires. I have to admit that I am quite sympathetic to the whole concept, at least in the mid-winter blues and blahs.

The photos are just playing around with blogger and my new built in web cam - I will maybe delete them later, I look like, well, that too and like I just got off a 14 hour flight and no sleep.

Roger Alford noting Amos Guiora's forthcoming article on national security courts

Roger Alford over Opinio Juris notes Amos Guiora's forthcoming Catholic University Law Review article on national security courts - a comparative approach which has much to recommend it. I will look forward to reading the article. Here's Roger's post:

***(I can't figure out how to do links on blogger using mac ...)

Continuing the discussion on the establishment of a domestic national security court, be sure to check out Amos Guiora's post over at National Security Advisors law blog outlining his recent article forthcoming in the Catholic University Law Review on a "domestic terror court."

The article is very useful because it takes a comparative approach that examines the practices of holding detainees in the United States, Russia, Israel, India, and Spain. Here is a key quote from the conclusion of the article:


The United States, post 9/11, clearly represents the extreme end of the spectrum--terrorists are enemy combatants to be detained in Guantanamo Bay, Abu Ghraib or so-called "black sites."... Unlike Israel, Russia, India and Spain, which regularly try terrorists, the Bush Administration's intial handling of the fundamental issue ... has resulted in a clear policy failure. By over-reaching, by establishing a judicial paradigm inconsistent both with Article III requirements and international law guarantees, the Administration opened the door to wide-spread criticism, which was not long in coming. While the U.S. continues to hold hundreds of detainees for trial, terrorist defendants held by the other nation's surveyed in this article have been brought to trial in accordance with the traditional criminal law paradigm or detained in accordance with an administrative law process subject to independent judicial review.

Letters to editor of NYT re Goldsmith & Katyal on National Security Court

Letters to the editor at the NYT, Monday, July 16, 2007, responding to Goldsmith and Katyal on the broad proposal for a national security court. Letters include Human Rights Watch, the Center for Constitutional Rights, and the ACLU:

***

Jack L. Goldsmith and Neal Katyal are correct that the current system of detaining terrorism suspects at Guantánamo Bay (or in secret C.I.A. prisons) without charges or trial has been a legal and political disaster. But their proposal to create a special terrorism court with power to authorize preventive detention is not the right solution.

Under their proposal, suspects could be interrogated without access to lawyers, proceedings would be less public than in an ordinary criminal trial, and suspected terrorists could be detained indefinitely even if they have not committed any overt criminal act.

Professors Goldsmith and Katyal offer no standard or procedure for determining who is a terrorist. They do not explain why we can no longer rely on the criminal courts that were able to try and convict the first World Trade Center bombers. And their suggestion that suspected terrorists apprehended in the United States or abroad can be treated like traditional enemy combatants captured on a battlefield was recently rejected by a federal appeals court.

The effort to create a new legal system from scratch is what led the Bush administration into the current legal morass. We should not repeat that same error again.

Steven R. Shapiro
Legal Director
American Civil Liberties Union
July 11, 2007

***

Jack L. Goldsmith’s and Neal Katyal’s article is a terrific proposal to deal with the vexing problem of how to run a system of preventive detention for terrorists. They recognize both that our current system has evolved in a direction that is hurting the reputation of the United States around the world and that an ordinary criminal law model of handling terrorist detention will not work in time of war.

What is needed is a special Article III federal court with the power to preventively detain those who are dangerous and to try those who have committed crimes. Such a court must be set up by Congress, which must recognize that there are terrorists who need to be detained for the public safety even if they could not be prosecuted under all the elaborate rules of the criminal law that we apply to domestic criminal cases.

Terrorist detainees deserve more due process than they are currently getting but less than domestic criminal defendants. It has been nearly six years since the Sept. 11 attack, and it is time for Congress to set up such an Article III court. Congress must step up to the plate.

Steven G. Calabresi
Chicago, July 11, 2007
The writer, a co-founder of the Federalist Society, is a professor of law at Northwestern University.

***

To the Editor:

Jack L. Goldsmith and Neal Katyal call for creation of a preventive detention system. We already have that system at Guantánamo. The idea of making this system permanent and more acceptable by adding some bells and whistles — a special national security court — is going in the wrong direction. It is contrary to American values and will ensure the continued negative consequences of the current policy that the authors refer to in the article: harm to our reputation, disrupted alliances and the “war of ideas with the Islamic world.”

Preventive detention cuts the heart out of any concept of human liberty; it permits the state to imprison people who have not committed any crime and to do so outside of the rules of a criminal law system that has been with us for more than 200 years.

No domestic or international law permits preventive detention under the current circumstances. The International Covenant on Civil and Political Rights, a treaty binding on the United States, permits it only in the most drastic of circumstances when the actual continued existence of the nation is threatened. Even then, a situation we are not facing, the detentions must be of an exceptional and temporary nature — not potentially forever. The treaty expressly prohibits indefinite detention without charges and trial.

The right direction is to close Guantánamo and other preventive detention centers: detainees need to be either charged and tried or released.

Michael Ratner
President
Center for Constitutional Rights
New York, July 11, 2007

***

To the Editor:

Jack L. Goldsmith and Neal Katyal suggest that the United States, to protect itself from terrorist threats, must create a system of preventive detention to jail people who are considered dangerous but who have not committed an overt criminal act. What they do not explain convincingly is why existing federal courts are not already adequate to deal with terrorism suspects.

The current system is not, as they suggest, overburdened, nor is it incapable of dealing with classified evidence or evidence collected abroad. On the contrary, scores of terrorism suspects have been successfully prosecuted in federal courts, including based on testimony obtained abroad, and many more could be.

Likewise, Professors Goldsmith and Katyal do not show why, if there are deficiencies in the existing system, it isn’t better to simply correct those deficiencies, instead of creating a new legal system and one that severely undermines civil liberties.

The government’s misbegotten experiment in military commissions stands as a warning that building new and untested processes for handling terrorism suspects can backfire.

The existing federal courts system has weathered extraordinary threats to the nation over the last 200 years: terrorist bombings by the Klu Klux Klan and other domestic groups, violence by the Mafia and other criminal syndicates, mass labor unrest, a civil war and two world wars, among other crises. Many generations think they have faced the worst threat in the nation’s history, but the federal court system has outlived them all.

John Sifton
Senior Researcher on Terrorism and Counterterrorism
Human Rights Watch
New York, July 11, 2007

Boulevard of Broken Dreams is locked in my head

... and it is driving Jean-Marie and Renee crazy, because I am (apparently) humming it absently mindedly continuously, including (apparently) during Mass today. I don't even like the film Moulin Rouge, old version or new. It is the Marianne Faithfull version that caught me - hadn't heard it since the 1980s - this is why iTunes is dangerous. It plays awfully nicely on cello, in any of three octaves - d minor, sliding, sliding, sliding all the way up to a very high A on the A string. I'm a sucker for this kind of stuff on cello or violin. Two or three cellos would be very, very cool with this. Okay, I wonder if I can make a trade with Renee ... she plays this on her cello with me, and I offer to play the bass line of her Buffy the Vampire Slayer The Musical, Once More With Feeling? Hmm.

Teaching in WCL's Chile Spanish language 'magister' program

I'm off tomorrow to Santiago, Chile, to teach international finance and business law for a week in WCL's Spanish language "magister" LL.M program, which is for students in Latin America and taught in Spanish, sometimes with translators and sometimes with Spanish speaking instructors. I'm doing something I hope is ambitious and not foolish, which is to do it in Spanish. I've spent a fair bit of time going over my materials and making sure I've got the vocabulary from a couple of Spanish language business and finance dictionaries. My accent is terrible, and my grammar not entirely royal academy. But I think on balance it is good enough at least to try and do it in Spanish and not have things intermediated by translation. Hope this doesn't turn out to be a big mistake.

Long plane ride to Chile in coach. So Jean-Marie and Renee got me, as a father's day gift, a new little MacBook - the smallest and cheapest and least powerful. I much prefer my desktop for working and writing, but the family laptop I had been using for the past four years - and which served us very well as a family computer in Sevilla - still works fine, but is too large to open on an airplane. What with shrinking seat distances, etc. It would be so great to be rich and travel business class. I might see travel in a very different light. Anyway, the little MacBook is very nice. One reason I went with Apple for the first time is that, even though more expensive, I just don't want to get involved with Windows Vista. Maybe we'll gradually just migrate all the family computers that direction, I don't know. But even this little cheap version is a cool machine.

Jean-Marie and I went and saw the new thriller Joshua this afternoon in Bethesda. Hmm. I don't myself see what the critics were all raving about. A thriller needs a resolution that consists of something more than the situation careening downwards out of control - hitting rock-bottom and then rolling the credits. That was the supercool twist of "thrillers" in the 1970s - they just end, like Picnic at Hanging Rock, for example, with no explanation and no resolution, ta-da. Or, in another genre of thriller, the remake of Invasion of the Bodysnatchers with Donald Sutherland - just when you're wondering how the clever filmmakers are going to pull the rabbit out of the bag - boom, it's over, there is no clever ending, just aliens take over the earth - big whoop. I can do that movie, for heaven's sake, and so can you. Joshua's writers and director don't seem to understand that being a thriller and simply being a depressing moving that heads downhill for a while and then just crashes and sits there, dead, and a "thriller" are not the same thing.

Outlining my revamped corporate finance course

Here's the overview for students of my newly revamped corporate finance course. As I said in another post, for various reasons, including the good availability of a math primer course at the law school that covers basic finance math, I don't do that stuff in this course - I used to, but it was a big mess with only a couple of class sessions to spend and a heterogeneous class of 90 students. So, here is the current approach.

(In brackets I have included a number of hypothetical "markets" which have an effect on students, such as the labor markets or the markets in cultural production or the markets in personal relationships such as marriage - we don't study those, of course - this is a course on business and corporate finance - but I do include them in the overview of functional markets as examples of markets in which people participate without necessarily thinking of them as markets, such as marriage or art. Apart from getting students to think about a wider variety of things as having a market aspect, it also helps students to understand what I mean by "functional" markets in the business sector, such as the market for corporate control, which is nowhere an actual, physical market as such, but a market function carried out through proxy financial instruments such as stock.)

***
A Financial Instruments and Functional Financial Markets
Approach to Corporate Finance

(* means a core part of the course. [Bracketed] markets are there as examples of things not ordinarily thought of as markets, but which exhibit certain market characteristics - we won't be studying those, but they are present as examples. Markets with neither a * nor brackets will be touched on in the course of discussing other kinds of markets.)

The Market for Corporate Capital-Raising*
Equity Instruments
Common Stock
Preferred Stock (topic held over until later)

Debt Instruments
Bilateral Lending
Multilateral Lending and Public Issuance of Corporate Debt
Corporate Debentures
Corporate Bonds
Indentures and bond convenants
Multilateral Lending and the Private Placement of Corporate Debt
(held over until Private Equity discussion)

Preferred Stock
as Hybrid of Equity and Debt

Convertible Instruments
Convertible Debt
Convertible Preferred Stock

The Market in Credit (folded into Debt Instruments discussion)
Review of Debt Instruments
Other borrowers and lenders
Bank lending
Private equity lending (held over until Private Equity discussion)
Government and municipal bond debt
Securitization of credit assets (held over for securitization discussion)
The concept of leverage as an aspect of debt/credit
The option relationship of risk, return, and control in debt instruments

The Market in Securitization*
Securitization and periodic payments generally
Mortgage securitization
Credit card receivables securitization

[The Market for Services and Labor]
The market for corporate/entity services
The market for personal services and labor
Employment and unemployment; wages and inflation

[The Market in Love, Relationships, Marriage, Family, and Social Reproduction]
(No, we won’t be dealing with this at all, but listed for completeness.)

The Market in Real Property
Real estate markets and credit markets
Residential real estate markets
Commercial real estate markets
The integration of real property markets and other financial markets

The Market in Risk-Allocation and Derivatives*
Speculation and hedging and leverage concepts
Derivative securities generally
Forwards/Futures Contracts
Options
Swaps
Interest rate risk markets
Currency rate risk markets
Insurance markets

The Market in Commodities
Commodities markets in tangibles
Commodities markets in intangibles
Currency and forex markets
Private contractual transactions for sale of goods, services, everything

[The Market in Innovation and Intellectual Capital]
Intellectual property
The market in human intellectual capital and its educational reproduction

[The Market in Cultural Production]
Art
Media
Sports
Entertainment
Education
Consumption and brand

[The Market in Political and Regulatory Power of Government]
Lobbying and the legal market
Bribery and the illegal market
The market in government monopolies and oligopolies

[The Market in Failure]
Entity bankruptcy and creditors' rights
Vulture funds and private equity
Personal insolvency, bankruptcy, and default

The Market in Corporate Control*
The problem of the public company
The LBO cycle

The Market in Private Equity*
The Private Equity cycle
Hedge Funds
Public companies, private equity and why the LBO cycle?

This course approaches corporate finance from two vantage points. First, what are the functional financial markets in the business world – not necessarily actual, real markets, but conceptual and functional markets for allocating resources? We will focus mainly on capital raising, credit, risk markets, securitization, control, and the private equity alternative, with less attention to the others listed. Second, what are the concrete financial instruments by which those functions are carried out, by which those functional and conceptual markets operate to carry out such functions as allocating corporate control, allocating risk, etc.? We want a practical understanding of the increasingly complicated instruments of finance – the contracts and agreements that underlie finance. But those instruments don’t make sense and don’t mean very much unless they are understood in the context of the financial market functions which they enable.

Functional financial markets and operational financial instruments, in other words. In the outline above, I have laid out a wide variety of markets in our social world, some of which have to do deeply with corporate finance in the traditional sense, others of which – even though, like the market in cultural production, are deeply involved with the business world, such as media conglomerates – do not seem to have much to do with the usual sense of corporate finance. They don’t, not in the traditional sense of stocks and bonds, and in fact we will leave them aside. But I list them for completeness’s sake – and also to emphasize that although we will not study them, in today’s financial world, in fact many of these supposedly unrelated “markets” in things like art or sport are, of course, big corporate business and are intimately tied up with “traditional” corporate finance of stocks and bonds.

Not so long ago it was considered astonishing that David Bowie would, so to speak, “securitize” himself, in the sense of selling for a price today the estimated revenues of his future record sales and royalty payments on his songs – a hybrid of art, entertainment, media, and very traditional finance – and nowadays it is a routine transaction. We are not going to spend the course thinking about marriage and family and art and all those other bracketed items above as “markets.” We will remain focused on corporate finance, broadly construed - this is a survey course, and it already covers a dizzying array of markets and instruments, in very quick-fire fashion. But I want us to be aware of how a functional markets approach includes more things that one might have thought, at least in principle. There are of course many others we might have included - markets related to development finance, for example, such as microcredit.

We will seek to understand the core financial markets and instruments against a fundamental question – why public companies for the deployment of these instruments in these markets, rather than private companies? How is it that business entities that separate ownership from control of enterprises, as public companies do, survive over private companies which unite the two? And why the LBO cycle moving capital back and forth between the two models of ownership and control? Those are vital questions today, as hedge funds and private equity takes on a more and more massive role in the economy.

Jack Goldsmith and Neal Katyal support civilian counterterrorism court in NYT op ed

Jack Goldsmith, law professor at Harvard Law School and former Bush administration official, and Neal Katyal, Georgetown law professor and defense counsel in Hamdan, have a very important op ed in the New York Times, Wednesday, July 11, 2007, at A23, calling for the establishment of a civilian national counterterrorism court and a system of administrative detention. Goldsmith and Katyal are often on opposite sides of the fence on national security issues, so it is particularly important that they come together on this very important idea, which I regard as a crucial step forward for post-Bush administration counterterrorism policy.

(I'm pleased to say I've been calling for this very thing beginning with a piece in the NYT magazine in 2006, here, a piece in Policy Review, here, in a joint piece with Elisa Massimino on counterterrorism policy, here, and most recently in the short Fordham speech that I've referenced on this blog, here. Other people who have endorsed this idea include Benjamin Wittes in his new and very important Policy Review essay, here; and Stuart Taylor discusses the idea in one of his columns, here. I have also discussed the general idea in various posts on this blog - check out the counterterrorism tag.)

(UPDATE, Professor Ben Davis has a contrary take on the whole idea at JURIST, here. And Opinio Juris has a post by Roger Alford, with some lively comments, here, and Roger's Opinio Juris colleague Chris Borgen on Opinio Juris, here, pointing in the direction of Glenn Sulmasy's earlier 2006 arguments for such a court, here, and most recently, here. Scott Horton's rather favorable take, here. I've stuck excerpts from the op-ed below, a chunk of Scott Horton's comments, and something Stuart Taylor wrote earlier.)

The New York Times editorial page of Sunday July 15, 2007, editorializes around the issue, calling for Guantanamo to be closed and for lots to be released and others to be tried in US civilian courts and holds out the possibility of military trials for others, but without addressing the national security court idea directly - it does, however, mostly though not completely attack the German interior minister's proposals for special counterterrorism measures, the same ones that Scott Horton mentions in his comments below.

It is worth noting, however, that Lee Casey and David Rivkin have raised important doubts and objections to the idea in their recent WSJ op ed, here. Theirs is a very important demurral, and I strongly recommend that everyone involved in this kind of thinking read it closely and charitably, because even if you favor the general counterterrorism court and administrative detention idea, as I do, careful consideration of its limitations and difficulties, as Casey and Rivkin observe them, might help avoid a breakdown into partisan tears.

One thing they note, and I certainly think is right, is that the devil is in the details. It is easy for right and left, so to speak, to agree in principle to the idea of a civilianized national security court, a counterterrorism court, a system of civilian administrative detention, and the transfer of existing military commission cases over to such a court. When it comes down to the actual issues of procedure, evidence, secrecy, review, habeas corpus, how long detention could go on, etc., etc., however, it might turn out that there is no real room for compromise at all. It is very important for all of us - I include myself - who are seeking this kind of avenue for counterterrorism policy to understand that although, at a high level of abstraction, we can agree on such an idea, we won't necessarily agree on the details sufficient for it to be a truly bi-partisan policy at all. Elisa Massimino and I have found that in our recent collaboration on counterterrorism policy - there comes to be parting of views, even if we can find some very important general principles of agreement. That does not make the areas of agreement less important, but it is important to understand that those general principles will not necessarily carry agreement all the way down to the crucial details.

In that general spirit, it is important to understand Casey and Rivkin's broad point that this country has not generally supported concepts of administrative detention outside of the framework of war and the powers of the commander in chief in war. There is a reason why that is the power that has been appealed to by the administration. Outside of the war setting, this country has ordinarily had administrative detention only in very limited contexts, eg, mental health, an unclear public health category (ie, yes, we have historically had a Typhoid Mary quarantine power, but even that was largely rejected during the AIDS epidemic and it is not clear where it stands with, say, a super-TB carrier), and the blessing of the Supreme Court for some administrative detention for post-sentence-served child sexual predators (and, apart from the fact of the Court's blessing, of dubious constitutional provenance).

It is not a long list of circumstances - and for a liberal and libertarian society, entirely and properly so. The idea of a counterterrorism regime based around civilian administrative detention is a genuinely uncertain concept. And after all, the idea that if there is to be detention outside the confines of charges and trial, it should be in the context of war and executive war powers is, arguably, not an authoritarian idea, but a libertarian one. We should not, on this argument, be creating more flexible conditions of confinement without charges and trial, but limit it strictly to wartime exigencies - thus the insistence that this is an proper exercise of purely executive power is actually the libertarian argument.

The difficulty with this argument, of course, is that it leads to a relaxation of the legal concept of war, if you really intend to detain at least some people under some rubric in any case. In so doing it leads to a stretching, to the point of unrecognizability, important traditional and ordinary categories of the laws of war. The response - one which I accept - is that it is far better to create a new category of legal detention rather than continue to stretch-to-fit categories of the laws of war that do not really stretch-to-fit without undermining the fundamental and original category.

***
Note, too, that among the crucial questions are hugely important and controversial issues of the treatment of citizens/permanent residents versus aliens under such a system. This distinction takes on greater importance as the obvious incentives for terrorist networks to recruit among US citizens and dual passport holders increases over the coming years. To what extent is it possible to bring US citizens under such a system? Do territoriality, citizenship, alienage, etc., categories matter to such a proposal?

***
(The Hoover Institution has set up a new Task Force on National Security and Law, of which both Jack Goldsmith and I are members. Others include Benjamin Wittes, Ruth Wedgwood, Judge Richard Posner, and task force co-chairs Peter Berkowitz and David Brady. I am thinking of convening a fall session at my law school in DC or at the Hoover Institution's DC office where available members of the task force, along with others who are interested, from a wide range of positions, could brainstorm freely about the legal issues involved - constitutional, procedural, evidentiary, etc. - not to come to any conclusions, or to reflect any particular political viewpoint, or to have formal papers or presentations, but simply to try and get questions on the table that would have to be addressed by such a proposal.)

*** From the Goldsmith-Katyal op-ed:

Nearly six years after 9/11, the government’s system for detaining terrorists without charge or trial has harmed the reputation of the United States, disrupted alliances, hurt us in the war of ideas with the Islamic world and been viewed skeptically by our own courts.

The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.

Such a court would have a number of practical advantages over the current system. It would operate with a Congressionally approved definition of the enemy. It would reduce the burden on ordinary civilian courts. It would handle classified evidence in a sensible way. It would permit the judges to specialize and to assess over time the trustworthiness of the government and defense lawyers who appear regularly before them. Such a court, explicitly sanctioned by Congress, would have greater legitimacy than our current patchwork system, both in the United States and abroad.

Criminal prosecutions should still take place where they can. But they are not always feasible. Some alleged terrorists have not committed overt crimes and can be tried only on a conspiracy theory that comes close to criminalizing group membership. In addition, the evidence against a particular detainee may be too difficult to present in open civilian court without compromising intelligence sources and methods. And the standards of proof for evidence collected in Afghanistan might not meet every jot and tittle of American criminal law.

A Congressionally sanctioned system of preventive detention, which would supplement the criminal process, is far from unprecedented. The Supreme Court has recognized that the president can detain traditional enemy combatants during wartime. The court has also long approved preventive detention for people who are dangerous to society — the insane, child molesters, people with infectious diseases, and the like — but who have not committed crimes.

Congress should draw the national security court’s judges from a pool of current federal judges, the same process used for the special court we already have to issue intelligence warrants. The court would have a permanent staff of elite defense lawyers with special security clearances as part of its permanent staff. Defense lawyers trained in the nuances of taking apart interrogation statements, particularly translated statements, are crucial because often the legal proceedings will involve little else in the way of evidence.

Congress should require the national security court to make sure that there is a continuing rationale to detain people years after their initial cases were heard. Congress should also insist on rights of appeal for detainees, ensuring scrupulous review by a second layer of specialized, repeat judges who will keep the initial judges on their toes. And consistent with the values enshrined in the Constitution’s equal protection clause, Congress should insist that the same rules apply to citizen and non-citizen terrorist detainees.

Detainees, however, need not be given the full panoply of criminal protections. A detainee may not be able to meet his lawyer right away, particularly if interrogation has just begun. A terrorist captured in Afghanistan should not be able to seek release because he was not read his Miranda rights. A national security court, while it would operate in public, would not have the same public and press access as an ordinary criminal trial.

We already have specialized federal courts to deal with matters like bankruptcy, taxes and patents; the case here is far more compelling. In the past, Americans might have hoped that a national security threat would abate over time, and so the pressures on the civilian courts, whatever they were, would subside. Today we have no such luxury. We must create sensible institutions for the long haul.

*** And from Scott Horton's reaction in Harper's:

This proposal is likely to be viewed as anathema to civil libertarians. But that would be foolish. Nations around the world have maintained the essential features of a liberal democratic society while keeping a regime of preventive, or investigatory detention. Indeed, this has long been the norm in civil-law regimes, and the greater skepticism of the common-law countries has never been absolute. America has been something of a proud outlier on the issue.

The focus in the coming national debate should be on the evidentiary showing based upon which preventive detention can be ordered (let’s take it as a given that it should not be available on the executive’s whim for other than the briefest period, particularly considering the massive abuse that has been demonstrated over the last six years, but on the other side the cumbersome U.S. criminal justice rules on evidence would not apply), and the maximum term available. This is where the debate has focused in Britain’s House of Lords for the last four years, for instance. And on the continent, what is to us so controversial, has never been an issue. The forthcoming Lex Schäuble in Germany, reviewed in the current Spiegel, for instance, includes a framework for targeted killing, the accumulation of data on passports, the use of a Trojan virus to inspect computers without warrant and other measures, but does not discuss preventive detention because that has always been available.

Of course, the English-speaking world has had some very unpleasant experiences with national security courts. The Founding Fathers were still acquainted with them and hated the memory. The trick here is to draw on that and more modern experience to assure that any new institution gives a high priority to justice alongside of state security. The Katyal-Goldsmith column builds sensibly towards a new first step.

*** Stuart Taylor:

OPENING ARGUMENT
The Case For A National Security Court

By Stuart Taylor Jr.,
National Journal
Monday, Feb. 26, 2007

A front-page, February 20 federal appeals court decision moved another big "enemy combatant" case down the road toward an eventual Supreme Court decision, probably in June 2008. But the outcome, like the current situation, will be unsatisfactory no matter how the justices rule.

The 2006 Military Commissions Act makes it harder to get other nations to help us get our hands on bad guys.

This problem is one that only Congress can solve: how to handle appeals by foreigners who are detained indefinitely as enemy combatants by U.S. forces abroad but who claim to be innocent civilians. Despite two new laws over the past 14 months, Congress has not yet devised a process that is either effective in catching and incarcerating bad guys or fair in the exacting eyes of world opinion.

The justices cannot solve this problem without unseemly gymnastics, because current law presents them with two bad alternatives. The first would be to uphold the sharp restrictions on federal judicial review of appeals by militarily detained terrorism suspects that Congress imposed in the October 2006 Military Commissions Act. That's what a sharply divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit did on February 20, in Boumediene v. Bush [PDF].

But as my December 18 column details, the MCA, even if constitutional, is neither fair to detainees nor credible to world opinion. It is thereby self-defeating, because it makes it harder to get other nations to help us get our hands on bad guys in the first place.

For these reasons the justices may well reverse the D.C. Circuit and strike down the relevant MCA provisions. Such a decision could, if written broadly, give every suspected terrorist captured anywhere in the world a historically unprecedented federal constitutional right to file a habeas corpus petition in federal district court demanding legal representation, release, a ban on interrogation, and/or nicer conditions of confinement. Such an outcome might (or, in these times, might not) satisfy world opinion.

But it might also make it unduly hard to keep bad guys locked up and to get information from them, by inviting disruptive and costly judicial interference in military decisions that most judges are ill-equipped to second-guess. Who would decide, for instance, whether terrorism suspects newly captured abroad, who may know of planned attacks or the location of their confederates, immediately get Miranda warnings and lawyers, who will tell them to answer no questions?

Consider a published boast (in Mother Jones) by Michael Ratner, head of the left-leaning Center for Constitutional Rights, which has coordinated the legal representation of hundreds of detainees at the military's Guantanamo Bay prison camp: "We have over 100 lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they're doing. You can't run an interrogation... with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there?"

Should detainees, who may end up being released, get access to sensitive national security secrets that are arguably relevant to their cases? Should their lawyers? Should such secrets be aired in public proceedings?

Consider the list of almost 200 unindicted co-conspirators, including the then-obscure Osama bin Laden, that prosecutors in the 1995 trial of 11 subsequently convicted Islamist terrorists were legally required to send to defense counsel. "That list was in downtown Khartoum within 10 days," U.S. District Judge Michael B. Mukasey of Manhattan, who tried the case, recalled in a recent panel discussion. "And he [bin Laden] was aware within 10 days... that the government was on his trail."

In another judge's case, Mukasey recalled, "there was a piece of innocuous testimony about the delivery of a battery for a cellphone"; this tipped off terrorists to government surveillance "and as a result [their] communication network shut down within days and intelligence was lost to the government forever, intelligence that might have prevented who knows what."

Yet another cost of the criminal-justice approach: For 11 years, federal marshals had to provide 24-hour protection to the two judges.

Should a Marine sergeant be pulled out of combat in Afghanistan and flown around the world to testify at a detention hearing about when, where, how, and why he had captured the detainee? What if the Northern Alliance or some other ally made the capture? And should the military be ordered to deliver high-level Qaeda prisoners to be cross-examined by other detainees and their lawyers?

In our criminal-justice system, judges are trained to follow precedents that tilt against the government on such questions. The process is appropriately designed to avoid wrongful convictions in ordinary criminal cases by guaranteeing defendants elaborate procedural protections and full disclosure of all possibly relevant evidence.

But the question whether to detain a suspected foreign terrorist calls for striking different balances. It's one thing to err, when in doubt, on the side of releasing a burglary suspect, or a suspected tax cheat, mobster, or even murderer. It would be something else to err on the side of releasing a man who might then mass-murder dozens, hundreds, or thousands of innocent people, possibly with a chemical, biological, or nuclear weapon.

If our judges were all as good as Mukasey -- who spanked the Bush administration in 2003 for its lawless, long-term, incommunicado imprisonment and interrogation of suspected terrorist Jose Padilla -- this country might not face much risk of judicial insensitivity to national security concerns.

But some other judges have been so reflexive in applying the criminal-justice mind-set, plus impossibly vague international human-rights standards, as to suggest that review of military detentions and trials should be very tightly constrained by congressionally specified rules and done by experts.

Congress moved in this direction in both the December 2005 Detainee Treatment Act and the October 2006 MCA. But as noted earlier, Congress went too far.

Even Andrew McCarthy, a conservative expert who sees the current process as a good one, admits that it has failed in the "imperative to demonstrate to national and international audiences that it was capable of dealing fairly and expeditiously with alien combatants," partly because of the "poor performance of the executive branch."

McCarthy, who once prosecuted big terrorism cases and is now director of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, adds this: "If other nations, unwilling to prosecute and sufficiently punish terrorists themselves, become similarly unwilling to extradite them to the United States due to what they regard as a lack of fundamental fairness and independence in the prospective trial proceedings, it will be cold comfort indeed that those proceedings are perfectly adequate (even exemplary) under our Constitution and laws."

He thinks the best solution is for Congress to create a new National Security Court independent of the executive branch. Other leading experts agree. They include moderate Democrat Neal Katyal, the Georgetown law professor who (much to McCarthy's regret) won the Supreme Court ruling [PDF] last June that President Bush's military commissions were illegal.

These and other experts disagree on the difficult details. But most agree that the new court should be staffed by already serving federal judges from around the country, to be chosen by the chief justice based on their fitness for the assignment. The judges would take time from their regular duties to review military detentions, plus any war-crimes convictions by the congressionally reconstituted military commissions.

Some see the 29-year-old Foreign Intelligence Surveillance Court as a model. It hears (in secret) requests for warrants to intercept communications from or to search through the possessions of suspected international terrorists and spies. National Security Court judges would become expert in assessing the security costs of requiring various procedural protections for detainees.

"Right now, these cases are heard by different courts, with different defense lawyers and different prosecuting attorneys," Katyal says. "None of them are really repeat players; none of them have the incentive to moderate their claims in order to build credibility. Creating a National Security Court, with repeat-player lawyers and judges, will change the entire dynamic, and help avoid the excessive rhetoric that has characterized both sides in the war on terror. It would also send a signal to the world that we have a serious process in place, one that we would feel comfortable applying to our own citizens."

Many libertarians and human-rights activists, on the other hand, would settle for nothing less than the full panoply of protections afforded to ordinary criminal defendants. They should be careful what they wish for. As McCarthy points out:

"Enemy combatants are often in a position to be killed or captured. Capturing them is the more merciful option, and making it more difficult or costly would almost certainly effect an increase in the number killed."

-- 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 petition against the Israel academic boycott

The boycott against Israeli academics and academic institutions is as morally appalling as it is counterproductive to the cause of long term peace, and I am certainly pleased to join the petition below, and encourage other academics to do the same. Follow the links to the sign-up page:

***
An International Call To Academics and Professionals From Nobel Laureates and University Presidents To Stand In Solidarity With Our Israeli Academic and Professional Colleagues

To: To Academic and Professional Colleagues

Please Join Us By Signing and Circulating The Following Solidarity Statement With Our Israeli Academic and Professional ColleaguesAs we approach 8000 signatures, please help us raise 10,000 signatures by signing and circulating it. Thank you.

We are academics, scholars, researchers and professionals of differing religious and political perspectives. We all agree that singling out Israelis for an academic boycott is wrong. To show our solidarity with our Israeli academics in this matter, we, the undersigned, hereby declare ourselves to be Israeli academics for purposes of any academic boycott. We will regard ourselves as Israeli academics and decline to participate in any activity from which Israeli academics are excluded.

To Sign This Statement:

Click Here http://www.spme.net/cgi-bin/display_petitions.cgi?ID=9&Action=Sign

Please sign with both first and last names, as well as identify your professional title and institutional affiliation. Incomplete signatures may be deleted. )

To View All Signatories:

Click Here http://www.spme.net/cgi-bin/display_petitions.cgi?ID=9&Action=View

Corn on the cob in white wine and salmon marinated in coffee

I got tired of cooking corn on the cob on the grill - even if I soaked it and partly steamed it first, and despite the blackened kernels looking pretty cool, it still came out dry. So, I have gone the other direction. I soaked the corn on the cob in a bottle of cheap white wine, for a few hours - not sure, actually, how much is absorbed that way. Then microwaved them in the wine until done. The corn came out moist and heavy with a mild winey scent and flavor to it. Instead of butter, I mixed coarse sea salt, olive oil, some benocal butter subsitute, fresh mashed garlic, black pepper, juice of two lemons, and zest of two lemons, as a dressing for the corn. Excellent.

Tomorrow, well I am grilling something very, very experimentally. The wife and daughter are highly dubious. The fresh salmon fillet, skin on, is marinating in a combo of strong espresso, unsweetened chocolate, cinammon, chiles, fresh squeezed clementine juice, garlic, and Cointreau liquer. If this doesn't go well, I suppose this may be my last blog post. But I have seen coffee as a marinade at least once or twice on the internet - although, to be sure, one can see many, many things on the internet of the "don't try this at home" category.

My last salmon, however, grilled and then served with a reduction sauce of amaretto, balsamic vinegar, cinammon, vanilla, orange juice, prunes ground up fine, and then good quality turbinado coarse raw cane sugar scattered on top, was a big success.

(Update. The coffee, chocolate, cinnamon, etc. salmon was interesting. I rinsed it off carefully - the coffee-chocolate marinade had absorbed into the salmon flesh - and got all the excess off the fish. I put some mild chili spices, salt, very standard spices on it and some olive oil, then baked it in the oven for a bit, flipped it over so it was skin up and finished it under the broiler. The salmon had a very distinctive taste. It was dark and almost but not quite smokey - I guess I'd say smokey without the "bite" of smokey. Almost bitter, but not quite bitter. I guess the word I want is "alkaline." Interestingly, Jean-Marie and Renee both liked it - specifically liked the taste of the marinated fish, not just the chili spices on the outside. But Jean-Marie rarely likes meats or fish cooked with fruits or sweet things - she prefers them sour, acrid, slightly bitter and dark. I don't think the flavor would have stood up all on its own - after the marinade, the fish still needed the chili spices. But it gave the fish a very specific, dark, almost bitter but not quite flavor. That was with a strong tasting fish, salmon - I'm not sure whether it would be a good thing or bad thing was a less flavored white fish to start.)

Rivkin and Casey argue against closing Gitmo in WSJ

My good friends David B. Rivkin, Jr. and Lee A. Casey have a new piece in the Wall Street Journal opinion page today, Monday, July 9, 2007, arguing against closing Guantanamo. As I discuss in my previous post, I myself call for closing Guantanamo in my new Fordham piece, provided that certain conditions for creating a system of civilianized administrative detention are met. Rivkin and Casey argue that this is a dubious proposal, and lay out various reasons why it either won't work, creates new and serious problems, or will simply serve as the thin wedge for dismantling even the modest regime of counterterrorism we now have. I have learned a vast amount from David and Lee over the years, and I take their views very seriously although, in this case, I simply think the political damage of Gitmo is no longer worth it, and that if a system of civilian administrative detention could be established, that is a better way forward than taking the increasingly "stretched" view that detention and trial can best be accomplished through a legal "war" paradigm. That's not to say that David and Lee are not right - their observations and warnings are astute and clearminded - or would not turn out to be right, in their assessments of what would happen to essentially dismantle a civilian, US-territory based system of administrative detention and a national security court. They might very well turn out to be only too correct in their warnings.

I'll see if I can find an open link to the WSJ later. Okay, some excerpts, below. I emphasize that David and Lee make some very telling points, starting with the marquee that since the administration's critics by and large don't think there is a war on terror, closing Guantanamo in favor of some non-standard detention scheme, even if civilian rather than military, will mollify them.

***
The Gitmo Distraction
By DAVID B. RIVKIN, JR. and LEE A. CASEY
July 9, 2007; WSJ Page A15

Reports suggest that President Bush's top advisers are again wrestling with whether to close the detention facility in Guantanamo Bay, Cuba. There is no doubt that holding captured al Qaeda and Taliban fighters at that facility has become a significant diplomatic liability.

But the potential foreign policy benefits of moving war on terror prisoners must be weighed against the very real strategic, tactical and legal costs that this decision would entail. After looking at these, it is difficult to avoid the conclusion that maintaining the Guantanamo Bay facility is not only justifiable but necessary.

Perhaps the most important cost of closing Guantanamo would be strategic. From the start of this conflict, al Qaeda's strategy for victory has been to take maximum advantage of Western sensibilities and institutions, including public opinion and legal rules which limit what states can do in their own defense. The Bush administration sought to minimize the impact of this type of strategy by itself adopting a wartime legal paradigm, declaring a war against terror and using the full force of the United States military -- rather than relying primarily on American law-enforcement resources -- against al Qaeda and its allies. Detaining captured al Qaeda and Taliban operatives as enemy combatants at Guantanamo Bay was, and remains, a central aspect of that policy and there is little doubt that abandoning it will be seen by al Qaeda as a failure of American nerve and a vindication of their strategic vision.

Closing Guantanamo would also be a victory for al Qaeda because the other alternatives for detaining captured jihadis give terrorists a legal advantage. The status quo is the best option we have.

There are three basic alternatives to Guantanamo: First, transferring the detainees back to U.S. bases in Afghanistan (such as Bagram Air Base) or elsewhere in the world; second, bringing them to the U.S. to be housed, still as captured enemy combatants, at federal military or civilian prison facilities; or last, having brought them to American soil, processing the detainees through the criminal justice system as civilian defendants, much like the "20th" 9/11 hijacker Zacarias Moussaoui.

The first alternative, moving the detainees to a different overseas location, would incur considerable expense (the current facilities would have to be more or less replicated in another location) and would almost certainly provoke a constitutional crisis between the president and the Supreme Court. The justices have already ruled in Rasul v. Bush (2004) that Guantanamo Bay, based on its unique status as Cuban territory subject to the U.S.'s exclusive authority, is subject to federal court jurisdiction.

Although this case was wrongly decided in light of the court's other precedents, withdrawing detainees from Guantanamo now would prompt the Supreme Court to consider another expansion of federal judicial power, effectively following the detainees wherever they are moved. And, given swing Justice Anthony Kennedy's uncertain temper in war on terror cases, a five-justice majority may well find a pretext to do just that. The president would then be placed in the unenviable position of accepting judicial oversight not merely at Guantanamo Bay, but also in active, foreign theaters of war -- or ignoring the court's ruling.

The second alternative, bringing the detainees into the U.S., also would be no panacea. This too would be costly, involving creation of new maximum-security prison space in an already overcrowded federal system. Relocation to the homeland would also raise the potential for escapes into the civilian population and would open vast new litigation vistas for the detainees and their American lawyers -- including challenges not merely to their classification as enemy combatants, but to the ongoing conditions of their confinement as well. Although Congress could attempt to avoid this projected litigation explosion by statutorily limiting detainee rights -- as it did in the 2005 Detainee Treatment Act and 2006 Military Commissions Act -- there is no guarantee that these or similar provisions will withstand constitutional scrutiny once detainees are in the U.S. and subject to the U.S. Constitution.

This is especially true with regard to proposals for the creation of a type of administrative detention that would permit the most dangerous detainees to be held indefinitely -- without criminal trial in either civilian or military courts. Despite the rhetoric of the administration's critics, the detainees are not now subject to indefinite detention. Under the laws of war, they may be held until the armed conflict is over, at which time they must be tried or set free. The laws of war do not provide a basis for post-conflict preventative detention, and the constitutional basis for such detention is far from obvious. To date, the courts have accepted truly preventative detention in only very limited circumstances, generally involving cases in which the prisoner has a mental disease or defect.

Thus, even assuming that congressional Democrats would accommodate the administration's request for such legislation -- and they do not appear to be in an accommodating mood -- the government may still lose the inevitable legal challenges. These are likely to be even more difficult than the one arising in the Guantanamo context which the justices have docketed for next fall. The administration could find itself having to charge the detainees as civilian criminal defendants or watch the courts release them onto America's streets.

This frightening possibility is real enough, because the final option -- processing the detainees in the civilian court system -- is also not possible. Some of the detainees would not be subject to trial in the United States at all because, unless they have actively opposed U.S. forces or otherwise directly targeted U.S. nationals, they are not obviously subject to American criminal laws. Attacking U.S. allies is not necessarily an adequate basis for jurisdiction. However, even if the underlying statutory framework were available to prosecute most of the detainees as civilian criminals, the government would be fatally handicapped in presenting its case.
Leaving aside the fact that evidence against the detainees has not (and could not have) been collected at overseas battlefields in accordance with normal exacting police procedures, the Constitution requires that every element of a criminal charge be proved beyond a reasonable doubt by admissible evidence presented in open court. This would require the compromise of classified, national security information being used as the price of a conviction. Although proponents of a criminal law approach to al Qaeda often claim that the Classified Information Procedures Act (CIPA) answers this objection, it does not.

CIPA permits the government to protect classified information throughout the pre-trial, including the "discovery," phase of a criminal prosecution. In addition, it allows the court to consider whether there are acceptable evidentiary alternatives to the admission of classified material at trial. However, if the court does not accept those alternatives, or if it concludes that the defendant would not receive a fair trial without the use of classified information, the government must accept the disclosure of that information (damaging the war effort) or see the case dismissed. Meanwhile, as was the case with the indefinite administrative detention option, any statutory restrictions on a defendant's right to have the evidence against him presented in open court -- another legislative option allegedly contemplated by the administration -- is neither likely to be adopted by Congress nor blessed by the courts.

Finally, in addition to these costs, the potential benefits of closing Guantanamo are illusory. The most commonly articulated reason for this step is to improve relations with our allies, especially in Europe. However, Europe's real objection is not to the detainees' location at a U.S. Naval Base in Cuba, but to their confinement as enemy combatants in the first place. By and large, Europe has never accepted that there is a "war" on terror. Moving detainees to Afghanistan or the U.S. will not change this.

To obtain any "public diplomacy" advantage from closing Guantanamo, the president must be prepared to declare an end to military operations against al Qaeda, and a return to the pre-9/11 policy mixture of law enforcement, diplomacy and surgical strikes against al Qaeda outposts that failed miserably. This is also why lesser changes at Guantanamo, such as inviting European allies to participate in both the operation and review of continued detentions, are impractical. Those allies simply do not believe there is a war in which these fighters can legally be held.

Just as nothing short of total U.S. withdrawal from Iraq would appease the administration's opponents, the critics of Guantanamo Bay will not be satisfied with anything other than abandonment of the war against al Qaeda. If, as the president says, a U.S. withdrawal from Iraq would be a key defeat in the war on terror, ending that war itself -- leaving al Qaeda bruised, but very much in possession of the global battlefield -- would be an even greater calamity.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.

My new Fordham International Law Journal speech-essay, US Counterterrorism Policy and Superpower Compliance with International Human Rights Norms

My speech/essay, US Counterterrorism Policy and Superpower Compliance With International Human Rights Norms, has just appeared in 30 Fordham International Law Journal 455 (February 2007).

I have posted a copy to SSRN, and it can be downloaded (free), here.

The piece has some copyediting mistakes in it - most significant is where William Wilberforce appears instead as Wilbur Luce, ouch! and Ben Wittes' name is misspelled, ouch ouch! - but those problems are my doing, not the journal editors, as I was unconscionably late getting them final handmarked changes and there was not time for me to review final proofs. It is a speech and deliberately left as a speech in essay format, not reworked as an article, so it is quite informal and perhaps quite unjustifiably provocative. It is also sweeping in its scope - I wanted to take in the big picture, the grand picture in a short space.

Earlier I posted some lengthy excerpts from the piece below as blog entries. I'm now deleting those entries, as they are distractingly long, and anyone who wants to read it can download the pdf from SSRN at the link above.

***
One short note about what is in this speech-essay. I call for Guantanamo to be closed in this piece. But I make it conditional on very specific and frankly unlikely events - viz., the legislative creation of a special counterterrorism/national security system that, while 'civilianized', does not put everyone into the regular US court system. We need a system of civilian administrative detention with processes for regular review, and we need a system for trying terrorist offenses, narrowly defined as a matter of substance and not applicable outside of terrorism thus narrowly defined (ie, no using the Patriot Act to prosecute (unrelated crimes of, say) child pornography - but which has its own set of more permissive procedural and evidentiary rules. If you can get that, then moving away from the miltiary tribunal system, closing Guantanamo and moving those not released to the US, etc., makes good sense. If not, well, then not.

People need to be clear that not everyone at Guantanamo - even beyond the undisputed "high value detainees" - is merely the innocent shepherd sold by the Northern Alliance. Hamdan was not, on his own admissions. Guantanamo contains people who were detained for regular war crimes on ordinary Afghan battlefields - including the murder of US military personnel - under circumstances which have always warranted military justice. Pure political expediency, not justice, argues for letting them go - and moreover, we already know that released detainees have returned to the battlefield, and more would do so if released - the people they will kill, however, are more likely to be Afghans, or people in Asia, than Americans.

Looking to the future, merely closing Guantanamo does not change the fact that we will pick up people whom we will want to detain for potentially years and yet will not be able to try in a regular court under regular domestic court rules. Either we find conditions of administrative detention, or ... well, what? We might find that we have thereby created an incentive not to detain, but instead to engage in assassination. Or we might look to sponsor proxy forces - eg Ethiopia in Somalia - somewhat in the way that Reagan policy used proxies and surrogates in Central America. Or we might rely on the French and Spaniards and other European countries and the fact that, despite the Western European human rights protection, structurally Continental legal systems provide nowhere near the legal protections of the US constitution in criminal investigation and prosecution, as a structural feature of an inquisitorial, rather than adversarial, system. Or perhaps we simply won't do much of anything at all - caught in stasis between clashes of different policies and different legal standards and different decisionmakers, frozen and immobile - the disaggregated state unable to be proactive in the protection of its citizenry - and so make a very different kind of bet about our safety.

It is easy for the Democrats and Congress to pretend that it is all otherwise and that we can just go back to Sept 10 criminal law paradigms, with some modest increases in homeland security, with targets that won't complain about discrimination - inanimate cargo containers, for example. Possibly the Democratic party would even enact that preference if in charge of the presidency and Congress. But I doubt it. We live at this moment in a period of Republican-facilitated Democratic kibbbutzing - facilitated and enabled by the Cheney policy of pure executive power - sniping without having to take proactive responsibilty and ownership of what protecting against terrorist attacks should mean as a going-forward policy of the United States. That condition is unlikely to last forever and, at the end of the day (if for no other reason than the fact of a new attack), the electorate will know where their leaders stand on counterterrorism and the legal regime shaping it, the necessary and inevitable tradeoffs between security and liberties that define counterterrorism in a liberal democracy.

So by all means let us avoid a police state - although what numbers of my colleagues in the legal academy seem to regard as the police state we supposedly already have seems to me a dangerous case of boy-crying-wolf - but let us also strive to avoid piles of body parts in American cities. The truism that there are necessarily trade-offs between these two is increasingly something denied by a significant part of elite opinion. The academics act as the high-intellectual end of a narrative that an increasing part of the electorate is eager to hear and absorb - there is no real terrorism danger, it stems from our own policies and attitudes, the problem is not terrorism but the invasion of civil liberties, talking about terrorism is simply a way of justifying the police state. Terrorism is not therefore the issue; counterterrorism is. 'They' are not the issue, 'we' are - and ignoring 'them' and focusing on 'us' promises a way back to the blessed land of nostalgia, a way of going back to live in the time of lovely ignorance, otherwise known as September 10, the quiet life, the morally unstrenous time of Before-Bush.

The intellectuals' attitude is not explainable, it seems to me, except on the assumption - which I wearily hear repeated without dissent at many, many academic conferences - that really there is no terrorism problem, except the one that the Bush administration created by invading Iraq or - the more intellectually grand alternative - the one that the West created for itself by being so intolerant of Muslims and Islam and, of course, Israel. But anyway, on either narrative, the problem turns out miraculously not to be terrorism, but instead our own viciously overreactive counterterrorism, which simultaneously creates a police state and promotes a cycle of Muslim radicalization.

Terrorism, on this account, is merely a second order problem. But it's not.

Mark Steyn on multiculturalism in Britain and the July 7 bombings

From the several columns Mark Steyn wrote two years ago in London's Daily Telegraph following the July 7 London bombings, or, against multiculturalism:

It has been sobering this past week watching some of my "woollier" colleagues (in Vicki Woods's self-designation) gradually awake to the realisation that the real suicide bomb is "multiculturalism". Its remorseless tick-tock, suddenly louder than the ethnic drumming at an anti-globalisation demo, drove poor old Boris Johnson into rampaging around this page last Thursday like some demented late-night karaoke one-man Fiddler on the Roof, stamping his feet and bellowing, "Tradition! Tradition!" Boris's plea for more Britishness was heartfelt and valiant, but I'm not sure I'd bet on it. The London bombers were, to the naked eye, assimilated - they ate fish 'n' chips, played cricket, sported appalling leisurewear. They'd adopted so many trees we couldn't see they lacked the big overarching forest - the essence of identity, of allegiance. As I've said before, you can't assimilate with a nullity - which is what multiculturalism is.

So, if Islamist extremism is the genie you're trying to put back in the bottle, it doesn't help to have smashed the bottle. As the death of the Eurofanatic Ted Heath reminds us, in modern Britain even a "conservative" prime minister thinks nothing of obliterating ancient counties and imposing on the populace fantasy jurisdictions - "Avon", "Clwyd" and (my personal favourite in its evocative neo-Stalinism) "Central Region" - and an alien regulatory regime imported from the failed polities of Europe. The 7/7 murderers are described as "Yorkshiremen", but, of course, there is no Yorkshire: Ted abolished that, too.

Sir Edward's successor, Mr Blair, said on the day of the bombing that terrorists would not be allowed to "change our country or our way of life". Of course not. That's his job - from hunting to Europeanisation. Could you reliably say what aspects of "our way of life" Britain's ruling class, whether pseudo-Labour like Mr Blair or pseudo-Conservative like Sir Ted, wish to preserve? The Notting Hill Carnival? Not enough, alas.

Consider the Bishop of Lichfield, who at Evensong, on the night of the bombings, was at pains to assure his congregants: "Just as the IRA has nothing to do with Christianity, so this kind of terror has nothing to do with any of the world faiths." It's not so much the explicit fatuousness of the assertion so much as the broader message it conveys: we're the defeatist wimps; bomb us and we'll apologise to you. That's why in Britain the Anglican Church is in a death-spiral and Islam is the fastest-growing religion. There's no market for a faith that has no faith in itself. And as the Church goes so goes the state: why introduce identity cards for a nation with no identity?

It was the Prime Minister's wife, you'll recall, who last year won a famous court victory for Shabina Begum, as a result of which schools across the land must now permit students to wear the full "jilbab" - ie, Muslim garb that covers the entire body except the eyes and hands. Ms Booth hailed this as "a victory for all Muslims who wish to preserve their identity and values despite prejudice and bigotry". It seems almost too banal to observe that such an extreme preservation of Miss Begum's Muslim identity must perforce be at the expense of any British identity. Nor, incidentally, is Miss Begum "preserving" any identity: she's of Bangladeshi origin, and her adolescent adoption of the jilbab is a symbol of the Arabisation of South Asian (and African and European) Islam that's at the root of so many problems. It's no more part of her inherited identity than my five-year- old dressing up in his head-to-toe Darth Vader costume, to which at a casual glance it's not dissimilar.

Is it "bigoted" to argue that the jilbab is a barrier to acquiring the common culture necessary to any functioning society? Is it "prejudiced" to suggest that in Britain a Muslim woman ought to reach the same sartorial compromise as, say, a female doctor in Bahrain? Apparently so, according to Cherie Booth.

One of the striking features of the post-9/11 world is the minimal degree of separation between the so-called "extremists" and the establishment: Princess Haifa, wife of the Saudi ambassador to Washington, gives $130,000 to accomplices of the 9/11 terrorists; the head of the group that certifies Muslim chaplains for the US military turns out to be a bagman for terrorists; one of the London bombers gets given a tour of the House of Commons by a Labour MP. The Guardian hires as a "trainee journalist" a member of Hizb ut Tahir, "Britain's most radical Islamic group" (as his own newspaper described them) and in his first column post-7/7 he mocks the idea that anyone could be "shocked" at a group of Yorkshiremen blowing up London: "Second- and third-generation Muslims are without the don't-rock-the-boat attitude that restricted our forefathers. We're much sassier with our opinions, not caring if the boat rocks" - or the bus blows, or the Tube vaporises. Fellow Guardian employee David Foulkes, who was killed in the Edgware Road blast, would no doubt be heartened to know he'd died for the cause of Muslim "sassiness".

But among all these many examples of the multiculti mainstream ushering the extremists from the dark fringe to the centre of western life, there is surely no more emblematic example than that of Shabina Begum, whose victory over the school dress code was achieved with the professional support of both the wife of the Prime Minister who pledges to defend "our way of life" and of Hizb ut Tahir, a group which (according to the German Interior Minister) "supports violence as a means to realise political goals" such as a worldwide caliphate and (according to the BBC) "urges Muslims to kill Jewish people". What does an "extremist" have to do to be too extreme for Cherie Booth or the Guardian?

Oh, well. Back to business as usual. In yesterday's Independent, Dave Brown had a cartoon showing Bush and Blair as terrorists boarding the Tube to Baghdad. Ha-ha. The other day in Thailand, where 800 folks have been killed by Islamists since the start of the year, two Laotian farm workers were beheaded. I suppose that's Bush and Blair's fault, too.

I'd like to think my "woolly liberal" colleague Vicki Woods and the woolly sorta-conservative Boris Johnson represent the majority. If they do, you've got a sporting chance. But in the end Cherie Booth and Dave Brown and the Bishop of Lichfield will get you killed. Best of British, old thing.

Two years later, some observers are hoping that things have shifted in Britain. Senior political figures in Britain have spoken out against full female Muslim coverage garb of precisely the kind in which feminist human rights lawyer Cherie Blair discovered such a smashing victory. Christopher Hitchens and Martin Amis - two liberals whose antipathy towards the political orthodoxy of multiculturalism is not in question - have written columns expressing the hope that Jack Straw's position, despite it being widely reviled in Britain itself, represents the hope of a new policy in Britain.

Well, I should like to believe that as much as Hitchens and Amis, but I think it is hoping against hope. I had a conversation with a friend in London a couple of weeks ago, and I remarked to him that knowledgeable friends in Paris view London as the capital of Islamist terrorism, the feeder from Pakistan, and the incubator of terrorism in its deadly combination of liberal protections for terrorism's ideological support groups and multicultural refusal to address an ideology that proposes to use liberalism to dispose of itself. My London friend assured me that the July 7 bombings had been a wakeup call, no more business as usual. Two weeks after my family and I have left London, the attempted car bombings a few blocks from our hotel in Piccadilly. The New York Times, on little evidence except its own wishful narrative, assures us that the doctors involved had been radicalized by the Iraq war: blame it on Bush and Blair.

Steyn remarked in a column back at the time of the New Jersey terror plot that every terrorist plot looks ridiculous if caught in the planning stages. The terrorists look like idiots for thinking they could succeed. Alas, it all looks very different if they do succeed. Had the 9-11 plotters been caught midway through the planning, what would our collective public response have been? God, what morons for thinking they could hijack not just one but four planes and use them as human-filled missiles against the largest buildings in New York. In the event, who were the morons? The most frightening thing about the most recent UK events is how extraordinarily close even some fairly amateur terrorists got to succeeding - concrete barriers at the airport, and someone thankfully observant in Piccadilly. But they got nearly all the way to home plate and were stopped by the frailest of last-stage tactical defenses, not by any kind of coherent counterterrorism strategy. Where were the vaunted domestic intelligence services? Might the mighty strictures of multiculturalism made surveillance rather more difficult than it should have been?

Meanwhile, the strictures of multiculturalism in the United States - the insistence that despite the obvious facts of where Islamist violence incubates, counterterrorism measures can take no account of that fact - lead to a copying of the dumbest of UK measures, the penchant for putting surveillance cameras everywhere. To record the carnage. To indulge the foolish idea that counterterrorism can and should consist of after-the-fact criminal justice, which is all that a video camera recording the action can hope to do, when posted on every possible location in a large city. It can't help you prevent terrorism - it merely announces that you don't intend to try to stop it in advance, but to go after people by sifting through the rubble and body parts afterwards.

Welcome to the world of on-defense, not offense, counterterrorism. If your counterterrorism policy is defensive, domestic, and essentially at-home, then be prepared either for a massive, general invasion of privacy in order to try and catch terrorists after the fact. And it still won't be effective, because the assumption of criminal law is deterrence through after the fact punishment. What does it mean if your terrorists are not deterrable?

Study Russian or Arabic language?

A former student of mine - not a law student, but a high school student about to start university in the fall - emailed and asked whether I would recommend that she study Russian or Arabic as her language. Her interests are a striking combination of science-technology (specifically chemistry and nuclear chemistry) and political science (specifically security studies). Either language would be useful, of course, but I suggested that even though many students have drawn the conclusion that Arabic is the hot language (and, unlike Chinese, actually aquirable as a skill in college), and so it might appear that everyone is already studying it, it is still a highly useful language for someone interested in the technical aspects of proliferation, nuclear terrorism, etc. Russian is obviously useful, but the number of Russian speakers is declining rather rapidly in relation to Arabic speakers, and anyway there are plenty of Russian speakers around in the US. So I suggested she think about Arabic, unless she was passionate about Russian or just wanted to do it - languages require a certain passion, and if you've got the passion, go with it.

Was this good advice to go after Arabic? I also suggested she spend time at the American University of Cairo language program.

Urban hiking in DC on a warm Saturday

I was suddenly seized with a desire not to go to the gym today, and so I decided to do an "urban hike" - a walk around DC. In today's heat, I definitely sweat a lot, but I can't say it's really aerobic exercise. Maybe 5-6 miles, total loop, but I don't walk fast enough to do the powerwalking aerobic thing. Still, I felt like being outside even though it is summer in DC, which is to say, horrible. Why can't I be in California, preferably the Eastern Sierra Nevada? Jean-Marie and Renee were at Renee's swim meet at St Alban's - they are out the door pretty much every Saturday by 6:30 am, which is a precise and accurate explanation of why I gave up on attending swim meets. So I hiked from our house at American University down to Dupont Circle, then cut over on M Street and recrossed Rock Creek Park into Georgetown. I'm currently sitting and posting from Saxby's coffee house next to Georgetown University. I like the place - student place, friendly, airconditioned, free wifi - I used to come here Sunday mornings while Renee was in religion class at the church up the block. Listening to my ipod - I broke with all the Marianne Faithfull oldies I had been just slightly obsessed with (Renee asked me What On Earth I Had Been Humming For Three Days Straight?!? - Ans: Faithfull's cover of the 1930s Boulevard of Broken Dreams. I finally got it out of my head by playing the melody on my cello - it works well in D minor in either of two octaves. It would sound good with two cellos, one on the melody and one on an arpeggiated background, or two cellos with a vocalist singing in Faithfull's "nicotine-stained" contralto.) So: not Marianne Faithfull, but Antonio Caldara's trio sonatas and cello sonatas, from the 17th century Italian Baroque.

Revising my corporate finance course

I've been revising my corporate finance course over the last two weeks - I did the same earlier to my international business transactions course - getting ready for fall classes. I've been thinking that these two basic courses of mine had been getting a little bit stale and needed revising and tweaking.

I have always taught corporate finance essentially as a survey class, focused on capital raising, and focused on very classic instruments in capital raising, debt and equity fundamentally. (I used to have a special section on basic compound interest math, but with a 90 student class where some students had MBAs and some students had come trepidatiously from French literature, it was just unworkable. I now recommend to them either a class at the business school, or else our law school's new course on quantitative methods for lawyers.) I have long used Richard McDermott's Legal Aspects of Corporate Finance text - partly because it does not try to give the whole finance and business thing integrated into the text, but instead focuses on the legal aspects. Instead, I also assign Hamilton and Booth's great Business Basics for Law Students as background, and give a tough multiple choice midterm on the whole book.

The problems with this approach have been, first, it is too narrow - capital raising doesn't address the wide range of corporate finance issues anymore, and anyway, my school's BA courses do a better and better job at covering equity and even some basic M&A thoroughly. So I have decided to expand to something I used to teach as a specialized seminar, the risk management side of corporate finance - options, futures/forwards, swaps, a few other derivatives. And add to that securitization. At the same time, I've decided to simply use a handful of cases that were the basic use I got from the McDermott text - cases that mostly explained the process of LBOs, but drop the text book. Instead - and this is a big change for me - I intend to use the Hamilton Business Basics as the basic text, supplemented by a lot of other things, including explanatory materials from the exchanges on things like options trading, a lot of explanatory bar committee stuff on indentures, but on the whole much less case oriented.

But I've also decided to give the course, for the first time, a thematic basis. It has always been a survey course as I've taught it - essentially building a tool kit. This time around, I plan to build the course as a series of functional (not necessarily actual) markets - markets in capital raising, control, risk management, etc. And then to use as the thematic question the issue of private equity and hedge funds in the very broad sense - use the classic questions of public versus private capital, public versus private companies - issues that at least in the next year or two should have a lot of resonance with students - in this age of private equity and hedge funds.

That's what I'm thinking, anyways.

Robert Anson Heinlein

Happy birthday to the late, great Robert Heinlein on the 100 year anniversary of his birth

Of course there have been many, many tributes to Robert Heinlein in the past few days in the blogosphere. He was a staple of my childhood reading - Have Spacesuit Will Travel and Podkayne of Mars and The Star Beast and Rocket Ship Galileo and The Rolling Stones among the children's books, and the great Waldo story. Methuselah's Children, Orphans of the Sky (later the basis of an album that I'm embarrassed to say I still listen to, mostly on account of the Jorma Kaukonen and Jerry Garcia guitars, Blows Against the Empire, by the early Starship, and nominated for a Hugo Award) and the whole The Green Hills of Earth stories. The adult books - well, Glory Road made a lasting impression, and the great, great The Mooon Is a Harsh Mistress, Starship Troopers, Farnham's Freehold, and of course Stranger in a Strange Land. I more or less dropped out of sci-fi at around that point, and never got into the post-Stranger literature. I took up Blaise Cendrars, Stendhal, dead French poets and German writers like Bertolt Brecht and Gunter Grass.

But the Heinlein book that has had the most lasting impression on our family, curiously, is the 1950s classic Cold War thriller, The Puppet Masters. My daughter somehow latched onto it in the fourth and fifth grade as we were leaving for sabbatical in Spain. It became her security blanket, on the plane, going alone into a local Spanish speaking school in Sevilla, all the unfamiliar and scary situations involved in moving for most of a year to a strange place and strange language and strange school. She must have read it twenty or more times; I read it aloud to her at least three. She idolized Mary in the book. It - she - really was a comfort to her.

(Renee hates the movie, from the late 1990s with Donald Sutherland (I didn't mind it, though I think it was badly cast, except that Sutherland makes a wonderful Old Man) because it upsets her internal vision of the characters.)

(ps. Poking around the web, I discovered this lovely review essay by Sir Adam Roberts, the great laws of war and international law and politics scholar at Oxford, responding to criticisms of The Moon Is a Harsh Mistress, on the occasion of the books re-release after many years in the UK.)

(pps. Wikipedia has an excellent set of links on Heinlein, his wife Virginia, and summaries and discussions of many of his novels. Start here.)

(ppps. And this excellent piece from the Wall Street Journal, July 26, 2007, open link, here, praising Heinlein's liberatarianism, by Taylor Dinerman.)

(pppps. Also this piece by John J. Miller, a longer version of which appeared in the National Review.)

William Easterly in the LAT on economic development successes in Africa

As William Easterly says, it is much too soon to say whether some favorable economic growth and development trends in parts of sub-Saharan Africa will be permanent. Political instability, for example, can wipe out years of slow improvements in a historical heartbeat. Nonetheless, he says, it would be a mistake not to recognize such improvements as are occurring, in no small part because they indicate the path forward. In the LA Times, here, "What Bono Doesn't Say About Africa," July 6, 2007, opinion page:

In truth, Africans are and will be escaping poverty the same way everybody else did: through the efforts of resourceful entrepreneurs, democratic reformers and ordinary citizens at home, not through PR extravaganzas of ill-informed outsiders.The real Africa needs increased trade from the West more than it needs more aid handouts. A respected Ugandan journalist, Andrew Mwenda, made this point at a recent African conference despite the fact that the world's most famous celebrity activist — Bono — was attempting to shout him down. Mwenda was suffering from too much reality for Bono's taste: "What man or nation has ever become rich by holding out a begging bowl?" asked Mwenda.

Perhaps Bono was grouchy because his celebrity-laden "Red" campaign to promote Western brands to finance begging bowls for Africa has spent $100 million on marketing and generated sales of only $18 million, according to a recent report. But the fact remains that the West shows a lot more interest in begging bowls than in, say, letting African cotton growers compete fairly in Western markets (see the recent collapse of world trade talks).

As time goes by, Easterly is decisively winning the intellectual battle between his approach to poverty reduction and economic development and that of his main intellectual rival, Jeffrey Sachs. The two share some important things in common, true, but Sachs, over the past few years, has gradually evolved a top-down, 'aid money is the fundamental factor', Soviet-style central planning quotas-and-goals, five year plan approach that has proved so useless in the past. It dovetails with Sachs' position as UN advisor on how to create precisely such command-economy five year plans at the grand UN level. It is profoundly reactionary. And it's a great pity, because Sachs is obviously brilliant and committed - but his ideas, at this point anyway, are wrong and known to be wrong on the basis of what has gone on before in Africa and elsewhere. This is not to exaggerate the ability of markets and trade to address extreme poverty in Africa - there is an enormously important role for public investment and public goods, in such things as counter-malaria, counter-AIDS, education, public health, etc. - but without the engine of trade and markets, Africa will at best remain the world's begging bowl.

Sometimes I wonder why someone so obviously brilliant as Sachs would move in this kind of direction, against strong evidence over decades. Unlike many of his confreres in international organizations, he is not simply a reactionary socialist under an "internationalist" label. It seems to me that a certain amount of it reflects the impatience of an aging - and, let's be honest, massively egotistical - man who wants to see it happen in his lifetime - does not want to accept that the better path will take longer than he himself has got. After all, Easterly's fundamental intellectual point is that development of the kind that Sachs today advocates is essentially a strategic endeavor - one that aims to move massive amounts of money in a short period of time at the macro-level.

Whereas the fundamental problems of poverty reduction for the very poor of the world are at the micro-level. They are today tactical rather than strategic - the resources at the level of global grand strategy have been repeatedly deployed over the last few decades, but they are derailed over and over again by failures at the tactical level, at the end user, last mile (or two or three) level - through corruption, failure to follow through at the village or city level, etc. And those problems have to be addressed individually, at the retail rather than wholesale level. They have to be addressed at the level of political society, which means at a minimum the level of nation-states as well as more local levels. Which means time and more time: this is not a recipe for inaction or complacence, but for long term attention to the task at the microlevel.

Or, to put it quite a different way, Sachs, Bono, all the rest, propose to be the Wilberforce of our time. I applaud this, quite sincerely. I was profoundly moved a couple of weeks ago to see the portrait of Wilberforce in Britain's National Portrait Gallery, as well as a large scale painting of one of the founding meetings of the anti-slavery society in Britain. But what Andrew Mwenda says (interpolating freely my own views into his lines) is that growth in Africa means that its people must eventually be drawn into the global market and become "ordinary" producers and consumers in that market - whereas the most that the Wilberforce moralizing approach will accomplish for economic development in Africa is the begging bowl. Economic growth can, and should, be conceived at one level as a Wilbeforcean moral cause for Africa, but slavery and the slave trade also have certain great dissimilarities with economic growth and poverty reduction, not the least of which is that at some point, the begging bowl must end and "ordinary" market relations obtain - and under some circumstances, attachment to the former can tragically forestall the latter. The two need not be at odds - the model of public investment in vital public goods, for example, while building the connections of trade and markets that produce "ordinary" production and consumption - but they can become so.

David Martin's TLS review of 'The Price of Peace'

David Martin, the eminent LSE professor (now emeritus), has an outstanding review of what appears to be an outstanding (I just ordered my copy) new book on just war theory - The Price of Peace: Just war in the twenty-first century (Cambridge paperback), eds. Charles Reed and David Ryall - in this week's TLS, June 29, 2007, No. 5439, p 24-25. As it's not online anywhere, I'm afraid you'll have to take my word for it.

***
I'm moving this comment from the comments up to the main text to make it more visible in case anyone wants to respond to it. As I said above, I'm waiting for my copy of The Price of Peace to arrive, so I can't respond to what is said here about the book; I will do so once I've received and read it. But I have very considerable respect for David Martin's views, and I think the review an outstanding short essay - I'm very sorry it is not online, even for a fee (eventually it will show up in the TLS subscriber only archive). If anyone else wants to comment, by all means, and I will comment on the book once I've read it.

***
I would be very interested in hearing others' comments on the review (which I've not seen) and the book (which I have). The book has some fresh faces, and also, usefully for critics, provides recent pieces by "just war" theorists who've helped bring just war theory into disrepute by appropriating it to support the war in Iraq: James T. Johnson, Jean Bethke Elshtain, George Weigel. Sorry, no Michael Novak or R.J. Neuhaus, but the family resemblances within this group are strong enough that the general picture emerges.

One feature of the picture is the trashing of in bello considerations. Others are its romantic attachment to "precision weapons" and the ongoing assault on the American bishops. Omitted from the book, unfortunately, is this group's disdain for the Peace of Westphalia, for the Catechism's worries about "modernorum destructionis mediorum potentia," among other topics.

They dislike Westphalia because it strengthened state sovereignty, which they generally view as merely a troublesome impediment to selective American efforts at regime change. They seldom tell us why Westphalia was desirable: it's as if one man's 30 Years War is another man's (or woman's) humanitarian intervention.

The book omits any reference to Ann Orford's work on humanitarian interventions. Jeffrey Sachs is nowhere to be found.

This does not mean there are not good contributions here. And it is a service to history, if not to the cause of peace, to include Elshtain, Weigel and Johnson. (That Johnson, a real expert on just war, should be as optimistic about "precision weapons" as he is, is damning testimony to the power of academic compartmentalization.)

I'm providing my address because I would be interested in feedback.

Dan Tompkins
Temple University
pericles@temple.edu

The ethics of robot soldiers?

Increased roboticization of US military operations is both inevitable and, on balance, a very good idea. (See this general article on robots on the battlefield.) Along with the things on the immediate horizon such as robot surveillance and remote sensing and all that has been the exploration, in the long term, of robot fighters. In that process, the more sci-fi inclined among us - that includes me - have been thinking about the issues of ethics and robot fighters, if they were made to include independent decisionmaking in at least some circumstances.

There have been some discussions in the academy, and some references to those in the press. The most easily accessible is this short piece in the Economist, "Robot Wars," June 7, 2007, here:

But whereas UAVs and their ground-based equivalents, such as the machinegun-toting Sword robots, are usually controlled by distant human operators, the Pentagon would like to give these robots increasing amounts of autonomy, including the ability to decide when to use lethal force.
To achieve this, Ronald Arkin of the Georgia Institute of Technology, in Atlanta, is developing a set of rules of engagement for battlefield robots to ensure that their use of lethal force follows the rules of ethics. In other words, he is trying to create an artificial conscience. Dr Arkin believes that there is another reason for putting robots into battle, which is that they have the potential to act more humanely than people. Stress does not affect a robot's judgment in the way it affects a soldier's.

His approach is to create what he calls a “multidimensional mathematical decision-space of possible behaviour actions”. Based on inputs ranging from radar data and current position to mission status and intelligence feeds, the system would divide the set of all possible actions into those that are ethical and those that are not. If, for example, the drone from which the fatal attack on Atef was launched had sensed that his car was overtaking a school bus, it might then have held fire.

There are comparisons to be drawn between Dr Arkin's work and the famous Three Laws of Robotics drawn up in the 1950s by Isaac Asimov, a science-fiction writer, to govern robot behaviour. But whereas Asimov's laws were intended to prevent robots from harming people in any circumstances, Dr Arkin's are supposed to ensure only that they are not unethically killed.

I have been working on preliminary notes for an essay on this topic, but it is all very preliminary. The most striking part of the project is that I do not see that the attempt to translate ethical decisionmaking into machine terms involves genuinely novel questions of ethics as such. On the contrary, what we seek to do is not to establish novel ethical principles, but rather to create, or re-create, hypothetically ideal or perfect ethical decisionmaking and conduct as we would imagine it for a hypothetically ideal or perfect human soldier but do so within a machine, a robot. The problems are in translation, not the creation of new problems or new solutions. In that sense, one could say that however interesting or important a task of ethical translation, it poses no new tasks in fundamental ethical theory.

And yet, accepting that, there nonetheless remains an area of grave difficulty - not because it represents a new problem of ethical decisionmaking different from humans, but because we do not have an adequately theorized approach to dealing with it. I refer to the question of proportionality jus in bello - the balancing of military advantage and damage to noncombatants that is (one of, if not) the core judgment of military ethics and indeed the laws of war. I can say with a fair amount of authority, having been working on this problem very quietly in my study for the last couple of years, that we have no method of weighing these two that is very defensible as a matter of ethical theory. It may be that the very idea of a "theory" to explain the weighing of what might well be understood as incommensurables is itself the problem, and yet in practice we do it and accept that we must do it. The problem, in other words, is not simply how one comes up with a theoretically defensible moral calculus for partly subjective judgments about how to weigh things that have enough similar properties to count as weighing oranges against oranges. That would be a difficult enough calculus to adapt to a machine but at least it would be about weighing similar things.

The much more difficult problem occurs when the things being weighed are, arguably, apples and oranges - both values, in the Isaiah Berlin plurality-of-values sense, but about very different things that seemingly cannot be weighed against each other, even though, as with many things of value in liberal theory, we must. One might think of Berlin's plurality of values as both a glory of liberalism and the tragedy of liberalism. Arguably, such incommensurability is what takes place in attempting to make moral judgments of proportionality jus in bello. Military advantage is a shorthand for describing not merely winning in a narrow military sense, but instead the values for which winning is morally, and not just prudentially, important - the moral value of a political community, its survival and interior values, stability in the external and internal political order, the assertion of moral values such as counter-genocide, etc. Damage to civilians, on the other hand, while referring in part to more remote and abstract values such as political community, is much more about immediate death and destruction. Although we immediately realize, in cases where the disproportion is great enough, when one or the other trumps, it is not very easy to elaborate a set of decisional rules about how to value these against each other. We can, to be sure, develop a certain practice, in a Witttgensteinean sense, or for that matter, a common law lawyer's precendential sense - but that is not really the same as a set of decision rules.

The point about robot soldiers is that this problem reduplicates itself when trying to reproduce a moral calculus at the machine level. It presents a problem, of course - but exactly, in principle at least, the same problem that we as humans have in conceptualizing the process of weighing and decision. But it also presents, perhaps, an opportunity - a kind of thought experiment, sci-fi made real, opportunity to think about how one would seek to operationalize, to make explicit, make external, what are otherwise highly intuitive and internal moral evaluations. And it is in this that I find the ethical issue of robot soldiers particularly interesting.

(Notes from a slowly developing draft paper, "Robot Soldiers and the Ethics of Proportionality Jus in Bello." Forthcoming ... someday.)

Happy Independence Day

... to all the American readers of this blog. I haven't really been around much to post, I'm afraid. Got back from Europe and had some immediate emergencies to deal with. But now I am around for a week or so before going to Santiago, Chile to teach in my law school's joint program at the University of Santiago. I'll teach the section on international economic law for a week.

Meanwhile, I'm headed to meet the family at the Palisades Park neighborhood annual July 4 parade. Renee marches in it annually with her swim team, the Dolphins - the team carries bags of little hard candies to toss to the little kids lined up on MacArthur Boulevard. July 4th parades in the US sort of divide into the Big Events - like the whole think out of the Mall in DC, which can be fun if the weather, like today, isn't too hot and humid, but is a bit like New Year's Eve in Time Square, a big public event with all the attendant issues of tranportation, etc. Then there are the small neighborhood parades, like the Palisades parade, which has been going on for years and years. Very informal, just local groups and kids sports teams and clubs and what on this blog is otherwise portentiously known as Civil Society. Not even political - Palisades has traditionally been a bit of a countercultural DC neighborhood, a bit left-over hippyish and lefty, although the explosion of housing prices over the past few years has perhaps had an impact on that - just a neighborhood celebration with lots of flags and red, white and blue.

(It's sometimes hard for friends of mine who are card-carrying post-national cosmopolitans from Europe or elsewhere to understand that it's not considered weird in the US for progressive lefty types, especially with kids, to attend, and for that matter organize, these kinds of neighborhood parades, and stand around on the street waving flags and red, white and blue. We had a flag out one July 4 when a friend was visiting from Europe; so did lots of the neighbors - he asked whether those houses who had put out flags were Republicans and those that hadn't were Democrats, red state versus blue state - and was very surprised when I told him I doubted there was any correlation on our street at all. European post-Christian friends often have the same reaction when they find that although there are clear differences of religiousity among American conservatives and progressives, lots of lefty-progressive families attend church regularly, especially if they have kids - my law faculty is a case in point - you likely gravitate to a church whose views you are comfortable with, but it's not considered weird or anything to be a believer and go and take your kids.)

Whenever I go to one of these parades, I realize I had no idea there were so many people in the greater DC area who wear kilts and play the bagpipes. If I can get any decent pictures I'll post a couple.

I admit that I have often skipped the Palisades parade in past years - I tend to wilt in the often oppressive heat and humidity of summer in DC. However, this year is relatively cool and dry, so why not?