Thursday, November 29, 2007

Taking a break from blogging

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

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

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

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

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

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

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

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

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

Sunday, November 25, 2007

Sundays with Stendhal 9

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

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

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

Amazon prime is convenient

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

Saturday, November 24, 2007

Howdy to Josh Cohen!

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

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

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

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

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

Thursday, November 22, 2007

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

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

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

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

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

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

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

The best account of Hollywood's anti-American films

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

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

Hollywood shoots itself in the foot:

Its anti-war films may be aimed at Bush,

but what they're really destroying is storytelling


November 15, 2007

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

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

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

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

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

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

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

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

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

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

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

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

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


My Day-Light light box

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

Happy thanksgiving

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

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

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

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

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

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

Cranberry sauce, homemade, Jean-Marie.

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

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

(Notice there is no chocolate on the menu.)

Wednesday, November 21, 2007

US official oaths of office

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 19, 2007

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

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

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

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

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

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

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

Is waterboarding torture, or otherwise always impermissible?

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

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

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

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

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

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

Will the judiciary defer? Heck if I know.

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

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

How should future detentions be governed?

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

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

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

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

President or Prime Minister of Spain?

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

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

From Wikipedia:

Official title

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

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

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


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

Sunday, November 18, 2007

To this blog's Palestinian readers researching prescriptivism and descriptivism

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

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

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

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

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

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

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

Sundays with Stendhal 8

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

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

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

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

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

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

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

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

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

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

Saturday, November 17, 2007

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

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

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

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

KA in Weekly Standard this week on the Madrid bombing verdicts

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

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

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

by Kenneth Anderson

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

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

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

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

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


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

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

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

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

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

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

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

Friday, November 16, 2007

The 'new conservative realism'?

I have been writing off and on about a sort of "new liberal realism," urging accommodation and containment of dictators, and ultimately saying not only that bringing down Saddam was not worth the price in US blood and treasure, but that Saddam was, on balance, better than Iraq without Saddam. I have not, to say the least, been very happy about this new conventional liberal wisdom, and I've sharply criticized it here and here and here (these are all free downloadable pdfs at SSRN).

But there seems to me emerging among the conservative think tankers and pundits a kind of "new conservative realism" that is different from either Baker-Scowcroft realism or the neo-con "idealism is the new realism" that in part fueled the Iraq war. I am not quite sure of its contours yet, or precisely what I think about it, in fact. But it seems to be partly captured by this op ed in the Washington Post by Charles Krauthammer, here, Friday, November 16, 2007. Excerpts:

[T]he strength of alliances is heavily dependent on the objective balance of international forces, and has very little to do with the syntax of the U.S. president or the disdain in which he might be held by a country's cultural elites.

It's classic balance-of-power theory: Weaker nations turn to the great outside power to help them balance a rising regional threat. Allies are not sentimental about their associations. It is not a matter of affection, but of need -- and of the great power's ability to deliver.

What's changed in the last year? Bush's dress and diction remain the same. But he did change generals -- and counterinsurgency strategy -- in Iraq. As a result, Iraq has gone from an apparently lost cause to a winnable one.

The rise of external threats to our allies has concentrated their minds on the need for the American connection. The revival of American fortunes in Iraq -- and the diminished prospect of an American rout -- have significantly increased the value of such a connection. This is particularly true among our moderate Arab allies who see us as their ultimate protection against an Iran-Syria-Hezbollah-Hamas axis that openly threatens them all.

It's always uncomfortable for a small power to rely on a hegemon. But a hegemon on the run is even worse. Alliances are always shifting. But one thing we can say with certainty: The event that will have more effect than any other on the strength of our alliances worldwide is not another Karen Hughes outreach to the Muslim world, not an ostentatious embrace of Kyoto, or even the most abject embrace of internationalism from the podium of the UN. It is success or failure in Iraq.

Advice from a public defender

Via Volokh and Craigslist. I'm certainly recommending this to my law students. Here. (I do sometimes wonder whether the most interesting Craigslist postings are real.)

Originality in writing

"Your manuscript is both good and original, but the part that is good is not original and the part that is original is not good."

(Attributed to Samuel Johnson.)

An alignment of interests in the Middle East?

Could Mark Helprin be right about a rare alignment of interests among Israel, the Palestinian Authority, the US, and other Arab states? Here in the Claremont Review of Books, Fall 2007. Excerpt:

The United States has fought the war in Iraq as if history, strategy, maneuver, preparation, foresight, and common sense did not exist. Nonetheless, the impact of the war has been to shatter the politics of the region and create new opportunities, one of which is the potential for a settlement between Israel and the Palestinians. Some quarters of government, burnt by the predictable failure of the current administration to transform the political culture of the Middle East into that of a Vermont town meeting, are pessimistic by analogy. But the analogy is invalid. The conditions are not the same, the task is different, and, unlike the United States, Israel has no timetable for withdrawal from the region—as its enemies well know.

As America blunts its sword in Iraq it has relieved Iran of much anxiety in regard to its own vulnerabilities, set up a predominantly Shiite state in Baghdad, and made the Arab world more receptive to Iranian views. The Shia ascendancy comprises a resurgent though weak Iran, a Shiite Iraqi state in critical condition, a Shiite rump in Lebanon chastened by the war it "won" a year ago (with such a victory, defeat is unnecessary), and the alignment with Iran of Syria and Sunni radicals such as Hamas.

Contrary to the received wisdom, last summer Hezbollah overplayed its hand. Israel emerged shaken but with few casualties and an economy that actually grew during hostilities. The vaunted Hezbollah Katyushas had a 1% kill rate, with not one launched in the year thereafter. Israel showed that upon provocation it could and would destroy anything in its path, thus creating a Lebanese awakening that has split the country and kept Hezbollah fully absorbed. Though Hezbollah is rearming, it remains shy of Israel.

Hamas, too, has overplayed its hand, providing the opening from which a Palestinian-Israeli peace may emerge. For the first time since 1948, a fundamental division among the Palestinians presents conditions in which the less absolutist view may shelter and take hold. Mahmoud Abbas is weak in many ways, but he has decisively isolated the radical tendencies. Hamas loyalists in the West Bank (according to the latest polling, less than 25%) face a different demographic in a different economy that can be richly watered if Israel is wise enough to do so. Surrounded and interpenetrated by the Israeli army and Palestinian Authority forces now strengthened by Israel and the West, Hamas is not what it once was.

In economically besieged Gaza, Hamas is corralled by Israel, Egypt, and the sea, its apparent strength exaggerated by the fact that Abbas did not choose to fight on this battlefield but rather to profit by its loss, much as did King Hussein in regard to the West Bank. The starving and oppressed Palestinians who watch Hamas fire rockets the chief effect of which is to summon Israeli tanks, may soon see a prosperous West Bank at the brink of statehood and at peace with its neighbors and the world. The quarantine of Gaza will cast a bright light upon the normalization of the West Bank. And although Hamas portrays Abbas as a collaborator, it is they who may be held to account for keeping more than a million of their own people hostage to a gratuitous preference for struggle over success.
* * *
The sudden and intense commonality of interest between the Palestinian Authority and Israel is the equivalent of the Israeli-Egyptian "anvil" of 1977. But unlike 1977, the Arabs, in the second circle, have largely reversed position. Fearful of Iran, they are rushing to bend the rejectionists against the anvil. They have so much to contend with at home and in the east that they cannot afford an active front in their midst, and are therefore forming ranks against Iran, Hezbollah, and Hamas.

We are at the potential beginnings of a rare alignment of Israel and the Palestinian Authority, the leading Arab nations, and the major powers. Though it is true that one of Russia's chief interests is to keep the Middle East roiled so as to preserve the high oil prices that are now Russia's life blood, when the region moved from Soviet to Western arms Moscow was relegated to the periphery. Though Europe is militarily paralyzed it wields great economic incentives, and though the United States has not done very well of late, its powers remain preeminent and its will constructive.

The principals, the important Arab states, and the international community are arrayed against a radical terrorist front that, unlike in Iraq, is geographically fractured, relatively contained, terribly poor, and very much outnumbered. Anything for the worse can happen in the Arab-Israeli conflict and usually does, but now the chief pillars of rejectionist policy lie flat, and the spectrum of positions is such that each constructively engaged party can accommodate the others.

In the heat of a failing war, historical processes have unfrozen. If the principals pursue a strategy of limited aims, concentrating on bilateral agreements rather than a single work of fallible grandeur, they may accomplish something on the scale of Sadat's extraordinary démarche of 30 years ago. The odds are perhaps the best they have been since then, and responsible governments should recognize them as the spur for appropriate action and risk.

Tuesday, November 13, 2007

Henry Kaufman in second WSJ commentary, calling for fundamental bank regulatory reform

Henry Kaufman follows up with a second powerful opinion piece in the Wall Street Journal on the question of bank regulation and monitoring. Who's Watching the Big Banks? Tuesday, November 13, 2007.

Kaufman follows up on his earlier article analyzing the inability of the Fed's regulatory system to monitor and regulate risks taken on by the largest banks, which carry vast moral hazard because they are deemed too big to fail, and which then bury th risks in exceedingly opaque financial instruments which are, one might say, as good at spreading risk as they are at concealing it and which leave no one with sufficient knowledge or incentive to discipline it. In this article he goes forward and proposes a radical regulatory solution. Excerpts:


November 13, 2007

Who's Watching the Big Banks?


November 13, 2007; Page A25

Another credit bubble has met its demise in U.S. financial markets. This time the spotlight is centered on the subprime mortgage market, although the slowing economy is likely to unmask other weak sectors in the credit markets. We might happily avoid a business recession, yet compared with the robust economic expansion of recent years the correction might seem like a recession nonetheless. Meanwhile, it's worth asking who is in charge of our financial system during this critical period? That is, what kind of role should regulators play to ease us through the crisis and safeguard against future turmoil?

Up to now, only two measures for stabilizing and strengthening financial markets have gained serious attention. The first is a proposal put forth by the Treasury Department that leading U.S. financial institutions set up a "superfund" called the Master Liquidity Enhancement conduit. This fund would buy mortgage securities from the structured investment vehicles (SIVs) that had invested in subprime mortgages.

Such a superfund is neither needed nor likely to work. To begin with, the banks involved in the subprime predicament still hold the capacity to meet their lending commitments. In addition, the proposed superfund would acquire only the better quality mortgages of the SIVs. That hardly would encourage the remaining commercial-paper holders of the SIVs to roll over their paper. Indeed, it seems the basic purpose of the superfund is to delay the accurate pricing of the junk mortgages in the SIVs, and to delay the recognition of losses. The superfund would neither resolve nor mitigate the fundamental problems in the financial markets.

The second measure to mitigate the financial contraction is, of course, the Federal Reserve's aggressive easing of monetary policy. The Fed has lowered both the discount and federal-funds rates, while also injecting a large volume of reserves into the banking system. The central bank went even further by informing member banks that credit would be readily available at the discount window, thereby signaling its help for banking in meeting their commitments -- including SIV demands on their credit lines.

On the global stage, major central banks in Europe have served up a huge new volume of reserves to mitigate stresses in their banking systems. Even the Bank of Japan, which had hinted it would raise money rates, seems to have pitched in by abstaining from rate hikes.

Yet in spite of these efforts on the part of monetary officials in the U.S. and world-wide, market confidence remains shaky. The volume of transactions in the subprime mortgage market is tepid at best. Stock prices of financial institutions have fallen sharply. In most markets, volatility is high. Key commodities prices have risen sharply. The U.S. dollar is under attack.

The problem is that the Federal Reserve and Treasury have failed to come forth with solutions that will limit future financial excesses. They've also failed to keep pace with a series of fundamental structural changes that have transformed markets in recent decades. As a result, in an age when "transparency" is the business watchword, financial markets have become increasingly opaque. This in turn has fostered doubts and fears about the underlying strength of markets and their institutions. Compared with a generation or even a decade ago, financial markets today are much more complex, an order of magnitude larger, and filigreed with new and often arcane credit instruments. Risk taking -- driven by the mystique of quantitative risk modeling -- has become more aggressive. And these structural changes, many of which were initiated in the U.S., are rapidly gaining acceptance in other major financial centers around the globe.

This new, highly securitized financial regime can work well only if securities are priced accurately. Stated differently, weaknesses and failures in securities pricing are wreaking havoc in financial markets. Traders and investors are learning the hard way that not all assets are the same when it comes to pricing. There is a sharp difference between marking-to-market U.S. government securities or large high-quality private-sector issues versus lower quality issues for which pricing is done off a model or matrix.

This brings to mind Fed Chairman Ben Bernanke's response when I asked him at last month's Economic Club dinner in New York what information he would like that is not currently available to him. Pointing immediately to the problem of pricing subprime instruments, Mr. Bernanke said frankly, "I would like to know what those damn things are worth." Then added, "This episode has revealed a weakness in structured credit products."

Giant financial conglomerates contribute to the opaqueness in our financial markets. Their activities span across many sectors -- from consumers to business, from trading to investing, from securities underwriting to lending and proprietary trading, from insurance underwriting to real-estate brokerage, from managing billions of dollars of other people's money to consulting and advising. Their global presence has been growing briskly, with some now garnering more than half their profits from foreign operations. Their size, scope, and embeddedness in financial markets are impossible to decipher from their published balance sheets. Because their reach is so vast and deep, these financial behemoths are deemed too big to fail.

In the wake of these profound structural changes in our financial system, who or what can provide oversight and supervision? Today's regulatory system -- though system is too strong a word -- is largely a historical artifact left over from the era when financial markets and institutions were much more fragmented and insulated from one another. In the U.S., state and federal regulators of various kinds continue to oversee specific activities in the financial markets and institutions. But the destruction of financial silos that once separated brokerage, commercial banking, investment banking, insurance, mutual funds, and other financial businesses has made fragmented state and federal regulation obsolete.

The Federal Reserve System comes closest to performing the role of financial system guardian. Its central mission is to implement policy that will encourage sustained economic growth. But its monetary tactics are asymmetrical. Leading Fed officials periodically acknowledge that the central bank knows what to do when a financial bubble bursts (ease monetary policy), yet it lacks the analytical capacity to identify a credit bubble in the making. ....


What is urgently needed is a new kind of institution that I will provisionally call the Federal Financial Oversight Authority. This regulatory body would oversee only the largest U.S.-based financial institutions -- the giant conglomerates engaged in a broad range of on- and off-balance-sheet activities that I noted above. The new authority would monitor and supervise these huge financial conglomerates -- assessing the adequacy of their capital, the soundness of their trading practices, their vulnerability to conflicts of interest, and other measures of their stability and competitiveness.

I am not proposing comprehensive supervision of most or all financial institutions. Oversight of the 10 to 20 largest financial conglomerates would fill the much-needed regulatory void, given the vast reach of those dominant players. The 15 largest institutions in the U.S., for example, have combined assets of $13 trillion. They dominate many key areas of trading, underwriting, and investment management. Many command an overwhelming position in derivatives and in many of the esoteric financial instruments that have grown so rapidly in the past decade.


Mr. Kaufman is president of Henry Kaufman & Company Inc., an economic and financial consulting firm, and author of "On Money and Markets: A Wall Street Memoir" (McGraw-Hill, 2001).

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Speaking at SAIS with Geoff Loane, ICRC, and Ruth Wedgwood on counterterrorism and Guantanamo into the future

Ruth Wedgwood, professor at SAIS and director of its international law program, invited me to join Geoff Loane, the head of delegation of the ICRC here in DC, to speak at a program on counterterrorism, legal issues on detention, and Guantanamo. Geoff is one of my favorite people, and I always enjoy both seeing him and being on a program with him; likewise Ruth. So I was delighted to do it. CSPAN ran it, and it should open at the link here. It is dated November 12, 2007, titled SAIS discussion on Guantanamo and the conflict with Al Qaeda. It opens in realplayer.

Sunday, November 11, 2007

Remembrance day

A year ago, at a meeting in New York, I was slightly surprised to see my friend John, arriving from London, with a cotton-made orange poppy in his lapel. In my lifetime it has never been remembered here in the United States with anywhere near the same care as in Britain; in this time of war, one better recalls. But it is one of those holidays that cuts across various lines - it can be a symbol of the madness of war, the nobility of war, or both together. The poppy in John's lapel was just that - a symbol of remembrance, not of a political statement as such.

And so I'd prefer to leave it here, today. Any reader of this blog will have a sense of where I stand on war, war on terror, war in Iraq and Afghanistan. I'd rather register my remembrance of those who died who died in defense of freedom in these and earlier wars, to whom I and the rest of us owe gratitude. They are first; and then to the memory of those who died on all sides in all conflicts; God grant them peace.

Well, almost leave it here. For this must seem, to those for whom patriotism and nationalism are by definition the same thing, both sentimental and atavistic. John is an intellectual and a cosmopolitan, but he is also among the last of the generation who could be counted with Orwell as the English left-patriots. The ranks diminish apace. The intellectual worlds which I mostly inhabit have long since departed any concept of place, anything as parochial as nation and home, for versions of cosmopolitanism which, on the one hand, seem to demand everything in the way of commitment - for people one does not know and whom one has no particular idea even exist, save in the abstract - and nothing in particular, except some donations of cash over the internet. The idea of country is deliberately alien to them; likewise alien, however, are the particulars of the cosmopolitan jet-stream which they imagine themselves to inhabit; the invisible college of international law; the only-too visible college of the global new class. Which makes me think of this passage, perhaps the most honest and morally most compelling thing from Michael Ignatieff:

It is only too apparent that cosmopolitanism is the privilege of those who can take a secure nation-state for granted. Though we have passed into the post-imperial age, we have not moved to a post-nationalist age, and I cannot see how we ever will. The cosmopolitan order of the great cities - London, Los Angeles, New York, Paris - depends critically on the rule-enforcing capacities of the nation-state ... In this sense, therefore, cosmopolitans like myself are not beyond the nation; and a cosmopolitan, post-nationalist spirit will always depend, in the end, on the capacity of nation-states to provide security and civility for their citizens. In that sense alone, I am a civic nationalist, someone who believes in the necessity of nations and in the duty of citizens to defend the capacity of nations to provide the security and the rights we all need in order to live cosmopolitan lives.

It is in this capacity, my dearest, careless, effortless, innocent, obligation-free cosmopolitan-children, the middle-aged, thickened, contented, sleep-walking academic flower-children of globalization, that Lt. Michael P. Murphy died for your lifestyle and its infinitely insouciant claims to be beyond the values he fought for, but which - collaterally - sustain you in the safe and secure embrace of the thing you disdain and mock, the passe democratic nation-state. Je tenais a ces etres par mille fils confiants dont pas un ne devait se rompre. J'ai aime fourchement mes semblables mette journee-la, bien au-dela du sacrifice. (Char). Even Ignatieff is wiser and more honest than you - and he is a politician and an intellectual. You would, I reckon, have sooner awarded Lt. Murphy your pity, not the Medal of Honor, and been well-pleased to think him the rich beneficiary of that, so highly do you regard your jet-stream lives above those who live merely on planet earth, and in particular and beloved and thereby parochial places upon the earth. But Murphy and those like him look not for your pity, which is based upon ignorance and condescension, but your respect and, dare one say it, honor. In Flanders fields, that is.

Sundays with Stendhal 7

Julien, in the drawing room of Madame de Fervaques, paying court to the Marechale in order to move Mathilde to jealousy ...

Surrounded by persons who were eminently moral, but who often had not one idea in an evening, Madame de Fervaques was profoundly impressed by everything that bore a semblance of novelty; but, at the same time, she felt that she owed it to herself to be shocked by it. ...

'How is it,' she asked him the following evening, with an air of indifference which seemed to him unconvincing, 'that you speak to me of London and Richmond in a letter which you wrote last night, it appears, after leaving the Opera?'

Julien was greatly embarrassed; he had copied the letter line for line from the Russian's originals, without thinking of what he was copying, and apparently had forgotten to substitute for the words London and Richmond, which occurred in the original, Paris and Saint-Cloud. He began two or three excuses, but found it impossible to finish any of them; he felt himself on the point of giving way to an outburst of helpless laughter.

At length, in his search for the right words, he arrived at the following idea: 'Exalted by the discussion of the most sublime, the highest intersts of the human soul, my own, in writing to you, must have become distracted.' ...

He left the Hotel de Fervaques in hot haste. That evening, as he looked over the original text of the letter which he had copied the night before, he very soon came to the fatal passage where the young Russian spoke of London and Richmond. Julien was quite surprised to find this letter almost tender. It was this contrast between the apparent frivolity of his talk and the sublime and almost apocalyptic profundity of his letters that had marked him out.

The length of his sentences was especially pleasing to the Marechale; this was not the cursory style brought into fashion by Voltaire, that most immoral of men!

(The Red and the Black, part II, chapter 58, "Manon Lescaut.")

Saturday, November 10, 2007

Christopher Caldwell on criminal "adventure philanthropy" in Chad

The great Christopher Caldwell, the finest of American journalists covering Western Europe fulltime, has a column in today's Financial Times on the criminal debacle of what he calls 'adventure philanthropy' and its attempted abduction of children from Chad. Required reading for the international NGO community, I think. Here (open link for now).

US policy toward Pakistan-in-turmoil: Steyn & the WSJ

Like everyone else, I've been trying to sort out the best approach for US policy toward Pakistan. The two most useful takes - I am not saying I agree 100%, still talking with people, reading and thinking about it, as unfortunately I have been for years now - are Saturday, November 10, 2007 WSJ editorial, here (open link for the moment), and Mark Steyn's syndicated column from Saturday, November 10, 2007, here, in the OC Register.

Excerpts from Steyn:

Everyone's an expert on Pakistan, a faraway country of which we know everything: Gen. Musharraf should do this; he shouldn't have done that; the State Department should lean on him to do the other.

"It is time for him to go," pronounced Rep. Dana Rohrabacher, R-Huntington Beach. Every foreign policy genius has his Hollywood pitch ready: "If we're not careful, we're going to see the same thing happen that happened in Iran," warned Dan Burton, R-Ind. Pakistan 2007 is a remake of Persia 1979 with the general as the shah, etc.

Well, I dunno. It seems to me a certain humility is appropriate when offering advice to Islamabad.

Gen. Musharraf is – as George S. Kaufman remarked when the Germans invaded Russia – shooting without a script. But that's because he presides over a country that defies the neatness of scripted narratives. In the days after 9/11, George W. Bush told the world that you're either with us or against us. Musharraf said he was with us, which was jolly decent of him considering that 99.9999 percent of his people are against us. In the teeth of that glum reality, he's rode a difficult tightrope with some skill.

As John Negroponte, U.S. deputy secretary of state, put it, aside from America "no country has done more in terms of inflicting damage and punishment on the Taliban and al-Qaida since 9/11" – which, given the proportion of the population that loathes America and actively supports the Taliban and al-Qaida, is not unimpressive.

Nevertheless, in Washington and the media, the assumption is that the wheel has now come off Musharraf's highwire act. Time for Pakistan to go back to democratically elected unicyclists, like the charming and glamorous Benazir Bhutto, who plays note-perfect in the salons of the West but degenerates into just another third-rate hack from one of the world's most corrupt political classes once she's back greasing the wheel in Pakistan itself.

Furthermore, confident believers in the usual dreary pendulum of Pakistani politics – corrupt democrats, followed by authoritarian generals, followed by corrupt democrats – overlook how profoundly the country's changed. Its political dynamic has a new player: Islamism. Miss Bhutto says, oh, don't worry about that, it's a lot of hooey cooked up by Musharraf to persuade Washington to prop him up for another half-decade.


Pakistan is both a nuclear power and a nation that cannot enforce sovereignty over significant chunks of its territory. Large tracts are run by the Taliban. The organization responsible for perpetrating the bloodiest assault ever on the U.S. mainland is holed up there and all but untouchable. The air routes between Karachi and Heathrow, Birmingham, Manchester and Glasgow are the vital conduit between the jihad's ideological redoubts and the wider world.

What do the perpetrators of the Daniel Pearl beheading and the London Tube bombing and the thwarted martyrs of innumerable other plots all have in common? Pakistan.

Fritz Gelowicz, arrested a few weeks ago in Europe, is an ethnic German who converted to Islam and graduated from a Pakistani terrorist camp. Unlike Britain and Canada, Germany has no longer-standing imperial ties with Pakistan, yet a ramshackle economically inconsequential basket-case of a state now has ideological converts in almost every corner of the world.

Mohammed Umer Farooq is a conventional first-generation moderate immigrant to the West who serves happily as pharmacist at the Princess Patricia's Canadian Light Infantry base in Alberta. By contrast, his daughter Nada Farooq says she "hates Canada" and was involved in a plot to behead the prime minister. In North America, Britain, Scandinavia, Australia and Pakistan itself, elderly grandparents who practice the Indian subcontinent's traditional Sufi Islam have seen their grandchildren embrace hard-line Deobandi Islam, essentially a local variant of Wahhabism … and then sell its virtues to pasty-faced white blokes with names like Fritz.

The Bhuttos and the Sharifs, their sometime rivals, sometime allies of convenience, couldn't run the country competently before it got hollowed out by the radicals. But the experts assure us they're now the answer to the woes of a nuclear powder keg.

Pakistan is not Persia. For one thing, it's a country only 60 years old whose slapdash creation was one of the worst disasters of British imperial policy. Yet even those who thought so at the time would be astonished to find that, a mere couple of generations later, a regional afterthought is not only a nuclear power that has dispersed its technology around the planet but also a driving force of the world's first global insurgency. If Gen. Musharraf is shooting without a script, what would you do if stuck in a toxic soap opera where the incoherent plot twists pile up with every passing decade?

It may well be that a Bhutto restoration will be the happy ending that foreign-policy "realists" predict. But it's more likely that a return to traditional levels of democratic corruption will cramp the economic interests of much of the military and lead key factions to make common cause with the Islamists – as Pakistan's intelligence service did with the Taliban. I don't know for sure, and nor does anyone else. But sometimes it helps to bet on form. And, given the past 60 years, the real question is how bad things will be after Musharraf. This thing can't be scripted, in Washington or anywhere else.