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, kanders@wcl.american.edu. And to all, ummmm ... good night and good luck? Ken

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

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

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

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

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

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

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

Maclean's
MARK STEYN

November 15, 2007

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

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

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

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

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

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

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

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

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

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


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

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


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

***
(Etc.)

My Day-Light light box

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

Happy thanksgiving

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

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

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

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

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

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

Cranberry sauce, homemade, Jean-Marie.

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

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

(Notice there is no chocolate on the menu.)

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.

Election

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

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
COMMENTARY


Who's Watching the Big Banks?


By HENRY KAUFMAN

November 13, 2007; Page A25
WSJ

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).

URL for this article:http://online.wsj.com/article/SB119492449989190917.html

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.

Really?

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.

Friday, November 09, 2007

American Buddhism in decline?

Very elegant and lovely article in today's Wall Street Journal Taste page, by Clark Strand, an editor with the Buddhist review Tricycle, on the difficulties that American Buddhism has in reproducing itself. Here. This article made me recall a book that I found by complete accident in the used and remaindered section of the Stanford University bookstore a few years ago, Shoes Outside the Door, novelist Michael Downing's (nonfiction) account of how a Bay Area Buddhist community more or less fell apart around issues of integrating religious practice into the rest of life. I gave away my copy, but I am now going to Amazon to get another ... it was one of the most gently elegant and, in a way, intelligently elegaic books on religion I think I have ever read.

*** Excerpts:

When I suggested to my colleague that he might want to think of ways to integrate his Buddhist experience into the long-term life of his family, and that he might look to existing religious models, like his local synagogue, for ideas on how to do that (rather than to the out-of-state monastery where he goes alone on retreat twice yearly), he answered shortly, "When my kids get old enough, they can decide for themselves whether to meditate or not."

It's an argument I have heard before. Having left the religion of their birth, often with good reason, American converts tend to be wary of anything approaching religious indoctrination, even if that means failing to offer their children the basics of a religious education. This has the advantage of giving Buddhist children great freedom of religious expression, with the disadvantage of not giving them any actual religion to express. The result is a generation of children with a Buddhist parent or two but no Buddhist culture to grow up in.

What does this mean for the non-Buddhist culture at large? Why be concerned that so few Buddhist baptisms, weddings or funerals occur among Buddhist converts each year that most of them have no idea what such ceremonies even look like, or that years after their conversion, their extended families persist in thinking of them as basically Jewish or Catholic at heart? The answer is surprising all around.


In the contemporary discourse on religion, it is striking how often Buddhism is privileged over Judaism, Christianity or Islam as a scientifically based or inherently peaceful version of religion. Note that the Dalai Lama (rather than the pope) was asked to provide the inaugural address at the annual meeting of the Society for Neuroscience in 2005, even though, like Catholicism, Tibetan Buddhism includes beliefs (think reincarnation) that are anathema to medical science. Likewise, though Japanese Buddhists melted their temple bells to make bombs during World War II, the idea of Buddhism as a peace-loving religion persists as an enduring fantasy in Western people's minds. And yet, such fantasies are instructive nonetheless.

Though some of my more devout Buddhist associates may balk at the idea, these days I have increasingly come to see Buddhism in America as an elaborate thought experiment being conducted by society at large--from the serious practitioner who meditates twice daily to the person who remarks in passing, "Well, if I had to be something, I guess I'd be a Buddhist." The object of that experiment is not to import some "authentic" version of Buddhism from Asia, as some believe, but to imagine a new model for religion altogether--one that is nondogmatic, practice-based and peaceful.

In that case, all the more reason to keep Buddhism in America alive. But to keep that experiment running (as it must if it is ever to yield practical results for the broader religious culture), it has to get itself grounded in the realities of American family life.

Thursday, November 08, 2007

Sneering, snideness, irony, and blogging

The tone I most dislike in political blogging is the sneer. Sneering and snideness. The sneering aside that acts as an emotional drive-by rather than direct engagement in the polite and polished civil discourse that provides grounds for civil and civilized disagreement. Irony, when not done in a friendly fashion - irony when really and truly meant - has much the same effect because it means you don't address an argument or a person holding such an argument but instead, in effect, address yourself to an imaginary audience that already agrees with you, sitting in emotional, not rational, judgment upon your subject. It only succeeds as a tone because you have already decided in advance that you are interested merely in conversing with those who already agree with you, and conveys the message to anyone else that you are not interested in discussion, but only in a priori agreement. It is an emotional tone in lieu of reasoned discussion, and serves as gatekeeper (I'm only interested in those who already agree with me) through affect, rather than an invitation to reason together. I try not to indulge that here; not sure I always succeed.

Monday, November 05, 2007

Stuart Taylor on waterboarding and torture

At bottom, I agree with Stuart Taylor at the National Journal on the issue of waterboarding. Article is up for the moment at the National Journal, here, but it will disappear at some point. Excerpt, from National Journal, Monday, November 5, 2007, Opening Argument, "Mukasey and the Slippery Pols":

***
It is especially telling that the main congressional objection to Mukasey has been his unwillingness to declare illegal an interrogation technique that Congress itself has assiduously and repeatedly declined to declare illegal.

The technique, called "waterboarding," involves simulated drowning. Congress could seek to explicitly ban it, along with other highly coercive techniques. It has not done so, because it does not want to take the blame for any future terrorist attacks that might have been prevented by highly coercive interrogation.

The attacks on Mukasey are an exquisite example of Congress's penchant for avoiding accountability by leaving the law unclear and then trashing the executive for whichever interpretation it adopts whenever something goes wrong.


Some factual context:

Our government has not used waterboarding since 2005, according to news reports, and seems unlikely to use it again soon, if ever.

Before suspending the practice in 2005, the CIA reportedly waterboarded three (and perhaps only three) people, all of them Qaeda terrorists deemed highly likely to have potentially lifesaving information.

The Bush Justice Department has repeatedly found at least some forms of waterboarding to be legal under the narrow but vague 1994 and 2005 laws defining, respectively, the crime of "torture," and "cruel, inhuman, or degrading" treatment.

***
But, one might reasonably ask, isn't torture by CIA interrogators already a crime? And isn't waterboarding a form of torture? The answer to the first question is yes, under a 1994 criminal law implementing the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The answer to the second question is more debatable.

Of course, being strapped to a board with a cloth over one's face and enough water running over one's nose and mouth to create the sensation of drowning sounds horrible and has been deemed illegal in various contexts by past administrations. But not every interrogation practice that sounds horrible or has been deemed illegal in some contexts clearly meets, in all contexts, the vague but narrow definitions embedded in the 1994 ban on "torture," or in the December 2005 McCain amendment's ban on "cruel, inhuman, or degrading treatment or punishment."

The 1994 law defines torture as including only practices "specifically intended" to inflict "severe physical ... pain or suffering" and certain other practices that cause "prolonged mental harm" (emphasis added). Under this definition, deliberately inflicting pain that is not quite "severe," or mental harm that is not quite "prolonged," is no crime.

To be sure, the 1994 definition is not so narrow as to justify the claim that only the pain associated with "death, organ failure, or serious impairment of body functions" would qualify as "severe," as the Bush Justice Department asserted in an infamous, now-repudiated August 1, 2002, memo. But the definition is certainly narrow enough to leave room for doubt whether it would be torture to waterboard a high-level terrorist for, say, 15 seconds. Indeed, U.S. military and intelligence agencies have reportedly waterboarded their own people as part of their training on how to resist interrogation.

Nor is it clear that all forms of waterboarding violate the McCain amendment's provision specifying that the ban on CIA use of "cruel, inhuman, or degrading" treatment (called "CID") extends worldwide. The amendment, passed amid much discussion of waterboarding, limited military interrogators to the list of relatively mild, traditionally approved interrogation methods in the new Army Field Manual, which prohibits all physical coercion.

But Congress quite deliberately chose not to limit the CIA to those methods, and thus tacitly gave the CIA approval to use unspecified forms of physical coercion. Moreover, Congress defined CID as limited to forms of coercion that would violate certain provisions of the Constitution, which the Supreme Court has held to prohibit only practices that "shock the conscience." The case law suggests that whether various interrogation practices shock the conscience depends on the importance and urgency of the information likely to be obtained and "exact analysis of [the specific] circumstances."


Waterboarding and some other highly coercive techniques would shock my conscience if used routinely or frequently on terrorism suspects. That's why I believe that, once confirmed, Mukasey will issue a legal opinion effectively banning waterboarding as CID in almost all circumstances.

But should Mukasey rule that waterboarding is always illegal? Even in the cases of those very few, if any, detainees who seem highly likely to have potentially lifesaving information? And even if it were done under rules requiring high-level, case-specific approval and prompt disclosure to the Intelligence committees? I don't think so.

Human-rights activists and some experts claim that all highly coercive interrogation techniques shock the conscience because they are virtually useless in eliciting valuable information. But other, perhaps better-informed, experts are quite convinced that coercive interrogation has saved lives. Former CIA Director George Tenet, for one, told CBS's 60 Minutes in April that what Bush calls "enhanced" interrogation "is worth more than [what] the FBI, the Central Intelligence Agency, and the National Security Agency, put together, have been able to tell us" about terrorists' plans.

***
Notice that one central issue here is the question, raised several years ago on this blog, as to whether there is ever any room for situational ethics in the assessment of what may be done in interrogation. Specifically, I argued a couple of years ago that (a) torture, whatever that was defined to be, is always illegal, all times and all places and all persons, but that (b) coercive interrogation techniques short of torture might be permissible depending upon what you knew about the person under interrogation.

That is, if you knew for a certainty that you had KSM and knew to a certainty his role, one was entitled to do things to him, still short of torture, that one would not be permitted to do to someone about whom you knew nothing. I argued that as a matter of both consequentialist knowledge and deontological culplability; this was disputed by many serious people, including the very serious moral and legal philosopher David Luban. My point now is to observe that this situational relativization is precisely what is argued above in the "shocks the conscience" standard - it depends what you know about the person, the level of reasonably known culpability, and what is at stake prudentially, eg, thousands of lives.

Congressional Democrats, certainly including Hillary Clinton, understand this, which is why they seek to hem and haw so much, while ultimately seeking to evade responsibility. It has been incomphrensible to me why the Bush administration has wanted to absorb all the body blows on these topics rather than share the responsibility with Congress, when it should have forced Congress to step up to the plate on where it would draw the lines on security and civil liberties.

Sunday, November 04, 2007

End of daylight savings time ... time to perform the New Fire Ceremony?

The weekend when daylight savings ends is, almost by definition, the worst weekend of the entire year. The light will go out forever. The sun will never be seen again. By five o'clock, and then four o'clock, darkness will be upon the face of the deep.

(I think this year I am going to buy a light box and sit in front of it. Any suggestions on time and effectiveness and where to get it? Do they really help?)

Thinking it over carefully, I have decided the Aztecs were right. Unless we perform the New Fire Ceremony, and rip out the heart of a specially chosen sacrificial victim, light a new fire in his/her chest cavity so to relight all the fires in the world, the sun will fail to rise and we will be left in darkness for all eternity.

Bee Wilson on coffee in the TLS

The Times Literary Supplement this week has an absolutely marvelous cover article by Bee Wilson on coffee. Here at the TLS. Of course, the four volume work under review runs 350 UK pounds, so most of us will be limited to indulging ourselves in the review, not the actual work.

Sundays with Stendhal 6

I admit, sometimes I fear this is me:

The Baron could not produce epigrams; he required at least four sentences of six lines each to be brilliant.

(The Red and the Black, part II, chapter 34, "The Hotel de La Mole.")

Saturday, November 03, 2007

Jeff McMahan on morality and the law of war

Jeff McMahan, Rutgers-Philosophy, has a new paper up over at University of Pennsylvania titled The Morality of War and the Law of War - h/t Larry Solum. It is a very fine paper, and I strongly recommend it to those considering Walzer and just war theory generally. I don't think I agree with all of it, but it is an excellent paper.

One point made close to the beginning serves as an excellent springboard into discussion of what Walzer calls the "moral equivalence of soldiers." It is the idea that if you shoot at them, they can shoot at you, and vice-versa - that which defines participation in the "game" of war, so to speak. But, as McMahan says, it is actually quite wrong as a moral principle. When it comes to policework, for example, what we might otherwise think of as jus ad bellum - the reason you undertake violence - makes all the difference in the world. Criminals have no equivalence to shoot back at police. Why should it be different in war? Shouldn't the cause for which you fight matter to whether you are entitled to use violence at all?

It is a problem with very practical ramifications, for example, as countries that contribute troops to international peacekeeping and peacemaking of various kinds look at the rules of war and wonder why their soldiers should be liable to getting shot at under the ordinary rules of war.

My own sense of this very good question? First, the problem is a central one in ethics of war. I discussed it once a long time ago in a very different setting, trying to describe the moral and legal differences between being a soldier and a policeman, back in the 1990s, in a review of Nicholas Shakespeare's The Dancer Upstairs (very fine film, by the way). (This was in an AJIL conference, I'll try to post it to SSRN as a pdf one of these days.)

One traditional answer is that in time of war, law is silent - and even if that is not completely true, it is enough to silence law on this particular point.

A second traditional answer in the law of war comes from a certain form of moral relativism - who is to say who is right and who is wrong under jus ad bellum? Lacking some overarching moral or political or legal authority, no one is entitled to judge. This leads to a certain form of neutrality as moral relativism - something I discuss toward the end of this academic article, and a little bit in this Wall Street Journal book review of the Swiss writer Friedrich Durrenmatt, here. My experience of staff of the ICRC over the years is that some of its people, individually, do have a strong sense of genuine moral relativism. In discussions with them about Iraq or Afghanistan, or pretty much any other war except, perhaps, Bosnia, the attitude among many staff seems to be a shrug, anyone with a position on war is by definition partisan and partial, and we at the ICRC have the superior moral position of neutrality. (The two articles above sharply attack the idea that neutrality is the higher virtue; I describe as necessary but always residual, and criticize those who always want the ICRC but never Churchill.)

As an organization, however, I would describe the ICRC's attitude as not precisely relativism with respect to jus ad bellum, but a quite sensible attitude of suspension of public disbelief as to questions of jus ad bellum in the service of another value, that represented by the humanitarian imperatives of jus in bello. This is thus a third answer to the question. But the morality and moral psychology of this suspension of (public) disbelief stand in need of much more theoretical work, and one of these days I hope to organize a Telos symposium that would take up the theory of neutrality from multiple standpoints.

Fourth is Walzer's own answer to this question - one of his answers, anyway - which is that war is a form of tyranny and coercion. War coerces the non-aggressing side to do things and act in ways it would not otherwise do, both in respect of civilians, its own people, and people on the other side. And one of the forms of coercion is the participation in war of many people who are coerced in the sense that they cannot be said to be responsible for the actions which they are required to carry out. We set limits in the laws of war on what those actions might be, but in general we do not hold them responsible for the policies of superiors because we see them in some fashion as coerced.

This does not set aside the "moral equivalence" concept that goes with the game of war, above. But, note, one of the peculiarities of Walzer's moral equivalence of soldiers is that this "game" idea of war of war is drawn from what the moral conditions of fighting would be if it somehow were uncoerced. How would freely consenting, freely participating combatants fight if it were a consented to game? As moral equivalents.

Why is this latter idea important in Walzer's overall moral theory of war? I think it can be made out best as this. Walzer's primary value is the preservation of liberty through rights, in which resistance to aggression is not just a right but, all other things equal, a moral obligation on behalf of a political community. (He says, flatly, all things equal, it is always okay to fight to resist aggression - not merely that one is entitled to do so. This is a very long way from the "from heaven" view of Catholic just war theory, in which overall good and evil must be taken into account.) War coerces; war is tyranny. But a fundamental purpose of the idea of morality in war is not merely to oppose aggression, but to do so in a way that best preserves rights and liberties. And one way to do that is to structure the acceptable rules of fighting as those which would be consented to by free participants - and they would accept the moral equivalence of soldiers. Soldiers are coerced, even when they volunteer; but they fight according to a convention as though they were free.

(I'm not sure Walzer would agree this is the argument, and I'm sure it has problems, but I do think this is the basic idea. There is some kind of linkage between liberty, tyranny, aggression, and the moral equivalence of soldiers.)

However, it is possible to go with the moral principles that McMahan says correctly are the normal operant moral principles of justice. What happens in that case? Well, it is still a justice-based one. Indeed, it can be called the "super-justice" position and it is made out most dramatically, surprisingly, by William Tecumseh Sherman, of all people.

This may seem surprising, since Sherman is most closely associated with the phrase, "war is hell," and following Walzer that is usually taken as an expression of uber-realism. But if one reads Sherman's quite remarkable memoirs, it becomes clear that Sherman, far from a realist, has a quite extraordinary sense of justice. Overdeveloped, in fact. A genuinely metaphysical sense of justice, in fact. Believing that he has jus ad bellum on his side, anything he does to the enemy is accounted as natural justice playing itself out against the original violator of the just order. He is the hammer of natural law, and at some points in the memoirs disavows any moral responsibility for what he does; it is in the nature of a reaction. It is a remarkable sense of karma, almost, in which Sherman disowns responsibility for his own actions and sees them in a sort of physics of natural justice. But it is distinctively a theory of natural law and right, although vastly different from Walzer's rights-theory and the Catholic version of natural law.

The effect is to reach what Walzer describes as 'realism' in war - but what he really means is a conduct of war that can recognize no moral limits on conduct - through the absolute belief in the jus ad bellum rightness of one's cause. Combined with the other side thinking exactly the same thing, all limits on war cease. But it is not a 'realist' result (i.e., no limits) reached on prudential or consequentialist grounds - entirely to the contrary.

(I've been working for a while on this topic on the backburner, under a tentative title of Sherman's 'War is hell': Three readings. I haven't got as far as I would have liked. There is more discussion of these issues on this blog, some of it overlapping with what is said here, under the just war, Walzer, and laws of war tags.)

Four development paradigms in the abstract

Taken purely in the abstract, here are four leading international development positions, with respect to the question of what, if anything, is the most important factor leading to economic growth in the very poor world.

2. More money, more resources, or, Sachsism. This is roughly the Sachs position, at least as reflected in what it means once translated into UN policy. Sachs' book, The End of Poverty, contains much more nuance and many more qualifications and bows in the direction of other considerations beyond simply pouring in more money. But when it comes to what it means in UN policy, it reduces with astonishing speed to simply a "more money" proposal, a top down set of central planning, bureaucratized five year plans. I was much more impressed with Sachs when I read it in his book. Once I saw what it meant in practice - Sachs to Sachsism, so to speak - it just seemed like more of the same old demand for greater resouces, period. With hefty doses of European moral sanctimony at any questioning of the model, on the one hand, and rent-seeking by international agencies wanting to stick their faces in the trough, making sure they get their cut, on the other. I don't quite understand how Sachs, promoter of post-Soviet era Big Bang privatization, morphed into a Soviet-style central planner at the UN, but there it is.

3. Institutions and governance from the inside-out. Institutions and governance at the national and subnational level to ensure the rule of law, anti-corruption, property rights, political and legal stability, the political space in which to plan long term investments. This is roughly the William Easterly position - one which emphasizes the "capillary" level of development, one institution at a time. What matters, first of all, is governance at the national level, and then reaching down through the subnational levels, and the promotion of stable bourgeois institutions of government to ensure favorable conditions for investment. Not necessarily liberal - but bourgeois. On this view, the Sachs approach pours resources into the "wholesale" level, the "arterial" level, but fails to take account of the fact that the problems lie less at the wholesale level than at the highly retail level, the "capillary" level, of development. This is a slightly different point than the institution-governance point, but they are closely related and in support of each other. And on this model - very different from UN-Sachsism - governance provides the capitalist-bourgeois shelter within which long term private direct investment can take place, to provide employment, jobs, and ultimately raise incomes. Public infrastructure is important, but the engine of growth is ultimately private investment.

I may as well say, if it is not obvious, that I think the institution-governance model is by far the better approach, based on my years doing development work through various organizations. These are the two main models for debate, Sachsism and Institutions/Governance Reform. It has large practical implications. For example, the UN occupies a very particular position in this debate, having embraced Sachsism through the Millennium Development Goals - which amount to a central planning five year plan by any other name, and, as with Soviet style five year plans, in fact no one except for credulous journalists and children ever took it seriously.

The US has mostly taken the institutions-governance view - as have, when it comes to much of the actual work that they do, national European aid agencies - and has therefore wanted to fund things very differently in order to provide incentives to good governance. This produces severe clashes between the US and the UN, and the UN's enablers, the European governments. Any time someone wants to measure global anti-poverty efforts by looking merely at how much money got shoveled out the door, which is to say, anytime anyone wants to attack US policy on development - there you find Sachsism, the UN, most of the World Bank, all agencies public and private looking to extract their transaction costs, and the editorial board of the New York Times, in full-throated scold mode.

(There are many micro-level, rent-seeking connections here just in terms of who staffs the UN agencies, made mildly notorious in the last year by the hiring practices of UNDP - few Americans and relatively more Europeans with the support of their governments for their rent-seeking activities. Part of the reflexive Euro-support for UN-Sachsism is not just ideology, but convoluted personal and national ties within international organizations that facilitate rent-seeking behaviors. Dutch government support for cronyism by Dutch nationals at UNDP in ways that would likely - at least one hopes -not be acceptable in Holland itself is a good example. It is an understudied area, and likely to remain that way.)

It also bears noting that although in practice, when it comes to funding and spending money by countries, there is a relatively clear division between the two paradigms, at the level of ideas and paradigms, it is all pretty mixed up. Sachs says lots of things in support of institutions; Easterly does not deny the importance of public infrastructure. The US supports governance reforms, but spends lots of money and emphasizes public health, universal public education, many other large scale public expenditures quite independent of governance issues. European aid agencies all understand perfectly the governance and institutional issues. The most important document on this subject in recent years is a World Bank paper that monetizes the effect of institutions of social stability and the rule of law, to show the relative differences between countries of the multiplier effect such stability has on the labor of an average individual.

I labelled the above positions (2) and (3), respectively, rather than (1) and (2), because we can usefully add two more positions as "outliers" on either end of the spectrum. If we think of development paradigms as a spectrum, then we can start with something we might call the income transfer paradigm:

(1) International income transfer welfare model. Sachsism asserts that it is about ending poverty, but says that despite the vast amounts of money spent in earlier decades with little discernible effect, massive new resources are needed for that. The other way of looking at this, of course - and one which tacitly holds sway yesterday and today among more people than one might think, if everyone were honest - says, at bottom, that nothing is actually going to end poverty as a matter of development. The best one can hope for is welfare - global welfare, income support. Forget about curing the conditions of poverty; the best you can do is globalize the national welfare state model, and engage in massive income transfers. You would do well politically to call it development or anything else to make it palatable, but in fact it is permanent support on a redistribution model. If particular places do manage to grow themselves out of poverty, great, but we do not actually have a clue how to make that happen or any reason to think that we can make this happen from the outside, so really the best one can do is humanitarian relief on a global scale, and try to create the welfare state on a global scale. In the past, theories of neo-imperialism, in which the poverty of the poor world was seen as being in zero-sum relationship to the wealth of the rich world, this welfare redistribution could be justified on the basis of justice alone. Today, the plight of the world's poorest people is that they are pretty much irrelevant to the world economy - too poor even to bother to exploit - and so the justification for income transfer is one of pure pity and charity (and persuading them, in an era of mobility, not to pick up and come collect their welfare payments in person). (My personal, anecdotal sense is that lots of Europeans really, if they were honest, hold something like this view, and regard the Americans as hopelessly naive for believing that you can actually undertake development as such by improving institutions and governance.)

But there is another outlier view, on the other side, so to speak, of the (3) institutions/ governance paradigm:

(4) Deep culture, or 'embourgeoisization' - and its failure. This is a highly simplifed version of the argument by Gregory Clark in his excellent, highly provocative new book, A Farewell to Alms. It is a highly complicated thesis about Malthusianism, the Industrial Revolution, and the whole sweep of global economic history. But it contains important implications in trying to explain why much of the world has not followed the path of the Industrial Revolution, at least in income gains. The core factor, Clark says, is inefficient use of labor, even among unskilled labor, permitting society to capitalize long term on technological innovation.

Contrary to Ricardo, returns to land have been minimal and declining in places where the Industrial Revolution took hold. Contrary to Marx, returns to capital have been less than the author of Capital might have thought. The returns of the Industrial Revolution have mostly been to labor and, remarkably - given that the engine of growth is technological innovation - most of that to unskilled labor over the whole sweep of the Industrial Revolution, not to skilled labor (although I have questions as to whether that is not changing in our increasingly winner-take-all society).

The concluding chapters of Clark's book are very pessimistic. They identify the inefficient use of labor as being the fundamental reason why some societies have income growth and others do not. Innovation in technology is the driver that brings any society at all out of the Malthusian trap; but innovation spreading worldwide is insufficient to bring all societies out of it, and indeed those that remain are, in fact, worse off than preindustrial Malthusian societies, in both absolute and (of course) relative terms. The reason for that is largely the success of modern medicine, which in a Malthusian world translates increased well being into increased population, not long term increased income.

But the heart of the pessimism does not lie in the fact that Malthusianism remains present in the developing world. It is, rather, that in order to take advantage of innovation to get beyond Malthus requires the efficient use of labor, including unskilled labor. Yet the efficient or inefficient use of labor lies in cultural factors, not in Sachsian resources and only secondarily in Easterly institutional and governance predicates. Institutional and governance failures are part of the problem, of course, but mostly as effects of larger cultural patterns in the efficiency of labor, rather than as causes. If that is so - I simplify 600 pages of text into two sentences - then institutitional and governance reform is not likely to be effective in raising growth and incomes or, more precisely, is not likely to come about because they, too, require a certain underlying, precursor culture.

That culture is more or less what, worldwide, we think of as the bourgeoisie. Moreover, Clark says simply that it is completely unclear from an economist's perspective - rationality and incentives - why some cultures are or become more efficient in the use of labor, and others do not. He means by that efficiencies and inefficiencies that are not attributable to weak institutions and poor governance as causes; he sees them as underlying weak institutions and poor governance, rather than the other way around.

(Bourgeoisie is a difficult term, and it is my interpolation of Clark's text. I mean it here in its 19th century usage, its Marxist usage as a marker of production, rather than its contemporary 'lite' usage denoting merely middle income consumer society found to some extent everywhere in the world. It would be very interesting and valuable to have a Marxist critique of Clark by Robert Brenner or Josh Cohen; the historical antipathy of Marxists to Malthus combined with a thesis that seems highly unsatisfactory for anyone who wants a forward-moving view.)

(I'd note as well that Clark's conclusion, and indeed he nearly says so directly, opens the way for sociological, social theory, and anthropological (and let me add, legal anthropology and critical theory as well, although I'll try to say something about that later) evaluations of globalization and economic growth, because he freely admits that rationalist economics does not seem to be able to answer the fundamentally social question of why some societies efficiently utilize labor to income growth and others do not. It is one of the few relevant openings for such areas as social theory and critical theory in what is otherwise the relentless - because, let's be clear, largely successful - colonization by the economics of rational incentives and rational choice theory. There is a role here for social theory beyond rationalist economics, and it is one of the few places in which it is so, and perhaps more remarkable, that an economist admits this is so. )

The implication of Clark's culture-critique of development is that neither Sachsism nor governance reform will necessarily have much impact on the neo-Malthusian societies of poverty in the world today. As a matter of policy, then, what? One can do nothing, opt for welfarist income transfer on a humanitarian basis, or come up with something else. The question is what that something else might be, which will be the subject of a later post. Clark's concluding chapter, however, does not leave much as a positive development program.

***
Seen from the standpoint of a taxonomy of development paradigms, we now have four programmes:

(1) Income transfer-global welfarism
(2) Sachsism
(3) Institutional-governance reform
(4) Bourgeois culture and its development - or failure

The 'outer' two, one and four, could be seen as skeptical-of-development paradigms; it might be better to call this the two-and-two taxonomy.

We could add many more, of course, some of which - like autarky - have been broadly discredited, or theories of neo-imperialism, which always seem to live to see another day, mostly because they always provide an avenue for blaming the rich world for the poverty of the poor world. I'll try to add some of those later.

But it seems to me that these four - the two interior paradigms seeing the way forward for actual growth, and the two exterior paradigms skeptically questioning whether or how much - capture the main debate today.

(ps. There is a good collection of essays by leading economists, development experts, etc., over at the Templeton Foundation website on directions for international development today. They are all far less pessmistic than Clark's analysis would suggest.)

(pps. Robert Samuelson has a column that does a reasonably good job of summing up Clark's complicated book, in the Washington Post, here. I note it provoked a irritated letter to the editor from an anthropologist protesting that all the bourgeois virtues of income growth can be found in all sorts of different places in the world. Possibly this is so; you would be hesitant to think that a demonstrated factual statement given the a priori ideological vehemence of the letter writer. But this is one of the problems with anthropology today. True of course that anthropology of yesterday was notable for celebrating white European cultural superiority; today's equally ideological anthropology engages much of the time in either showing that, when it comes to good things, all cultures are equally filled with them or, alternatively, that the West is filled with bad things. None of this is going to do much, however, to convince those of who stand outside anthropology's sternly engage political and social prior commitments of the value of its supposed empiricism. Many works of anthropology I read today are either political tracts or else little more than development work, committed to a paradigm in development work, whereas what we need is empirical research into the connections between forms of development work and its actual function and results in different cultures and societies; anthropology dwindled into engagement in development loses much ability to help see a picture beyond a particular development paradigm.)

Friday, November 02, 2007

ps re SRI

By the way, I actually think SRIs are probably not such a great idea for Serbia at this point in time. It simply doesn't, so far as I can tell - and I haven't been in Belgrade for a while, true, so maybe it is all much improved and I haven't caught up - have a governmental culture for regulating charities that would allow it to work. Too much corruption and governmental political influence. In fact, I probably don't really think there is great room to expand SRIs into lots of countries around the world - for the same reasons, and also that most countries, really, can't do even basic charities regulation effectively, let alone SRI. Better to have SRI function internationally through countries that have effective charities regulation, and funnel the funds raised to other places in the world.

Hmm. I think I had better drop a note to the editor and amend that opening paragraph - I need some diplomatic way to phrase it, however, because the whole premise of the special issue seems to be, more or less, this is the cool thing in the Western charitable sector, let's do it here!!!! To which the real answer perhaps should be - in Belgrade, in a government containing many corrupt functionaries, the influence of gangsters, and Milosevic leftovers, are you kidding? Let's get basic charities regulation functioning, first, and then look to SRI structures.

(Also, I haven't noted the most basic arguments over SRI, except by implication: first, how do you show that the market's allocation is not the socially efficient one and, second, if it is that socially important, shouldn't government do it directly? I do think SRIs can be a very useful charitable activity, but the article is a bit too cheerleading, on reflection.)

Socially Responsible Investing (SRI), a primer for a Serbian magazine

At the media forum in Guatemala last week, I was asked by a Serbian editor if I would contribute something very short and general on socially responsible investing to a special issue on the subject of a Serbian business magazine. Something very readable for a general audience to explain what the idea is about and what kinds of laws and regulations you need to make it possible. Here's my effort - I am not very good at explaining things to general audiences, so I have encouraged him to simplify and shorten things.

***
What It Takes for a Society to Have Socially Responsible Investing

Socially responsible investing (SRI) is an increasingly popular mechanism by which individuals and organizations can engage in charitable activities. It is an especially growing activity of the nonprofit and nongovernmental organization sector in the United States and Western Europe, and has great promise to expand elsewhere in the world.

But SRI is a very special nonprofit activity, and for it to be successful in a society, SRI requires some crucial legal, regulatory, economic and social underpinnings – if these are present, then SRI can be an important tool in charitable and nonprofit work in a society, and in international philanthropy. If they are not, then there is a possibility of SRI backfiring and damaging the whole nonprofit sector. It is therefore very important to get the regulatory and legal rules right for SRI, and to understand that it is a specialized tool of nonprofit activity and not an answer for everything.

Stripped down to its essence, SRI is a practice by which either individuals or organizations – which might be regular for-profit businesses, such as banks or corporations, or non-profit organizations, such as charitable foundations – invest part of their funds in economic activities that are considered to be socially valuable but which might not ordinarily receive the funding from the market that is considered socially optimal. The basic idea is that the money is not donated in the ordinary sense of given to a charity, and then it is gone from the donor’s hands. The idea behind SRI responsible investing, on the contrary, is that it is an investment in a charitable activity, usually as a loan, which is to be repaid to the person who made the loan.


This socially responsible lender, rather than receiving the full market rate of interest, however, makes a conscious decision to accept either no interest on the loan or else a discounted interest rate – something less than the full market rate of interest. The money is intended to return to the lender, and so is not a donation. What is donated is the interest on the money that might have been charged.

In the case of individuals, that money can come from one or both sources. It might be money that the individual planned to contribute to charity anyway as an outright donation, and instead makes as a loan. People who do that – who planned to donate the money anyway to charity – frequently take the repaid loan and do another SRI loan, to the same organization or to another one. Alternatively, the money might come from funds that the individual planned to save – for a rainy day, for retirement, for all the reasons people save money. In that case, of course, the individual cares a lot that the money will be safely repaid – it is not money the individual planned to give away, but only to loan for a while.

In the case of for profit businesses, the legal rules in the United States and most other advanced economies permit the boards of directors of corporations to make reasonable contributions to charity in the name of the corporation. And so instead of making a straight donation, the business might instead loan the money at no or low interest rates. Alternatively, just as individuals might take some of their savings and put them into SRIs, a business might take some of its regular investment funds and put them into SRIs – and just like an individual, the business cares a lot that it get repaid.

Of course, all this means that the charity that receives the money must be the kind of charity that can repay a loan. Most charities are not like that, as a matter of fact. If you give money to a charity that uses the money to feed poor children or buy them winter clothes, the simple fact is that that kind of charity has no real possibility of earning money to pay back a loan. It's not (we hope) planning on charging the kids for the food or clothing. It is a charitable organization all about giving. It needs donations because its charitable activity is donating things. Think of it as an “intermediary” that takes donations from you, but knows better than you do who really needs that donation and why, and then makes sure it gets there. SRIs typically don’t make sense for those organizations – and they are most of the charities in the world – because those organizations don’t generate income apart from donations.

The organizations that can use SRIs are typically the specialized range of institutions that do generate their own funds, and can repay the amounts that are loaned to them. Examples would be schools that charge tuition – even if that tuition is very reduced, to subsidize the children, for example, still, over time there is an independent stream of income that can be used to repay SRI loans. What this means, really, is that an NGO that has a stream of income, from tuition payments, for example, can borrow at a zero interest rate through SRIs rather than financing itself – to build a new school building, for example – through loans on the market at full market interest rates.


This is a very valuable economic resource, but it only works with the kinds of charities that actually bring in their own money. But the numbers of charitable organizations in the world that do have their own streams of income from which they can, over time, repay SRI loans are increasing – especially as microfinance, which makes small, “micro” loans to poor people, especially women, in the developing world to create small businesses, grows. Those micro-businesses repay their loans, which in turn can repay the SRI loans.

If that is what SRI is all about, what kinds of legal, social, and economic structures make it possible?


In the first place, there has to be in place a solid social tradition of making charitable donations in the first place. In a lot of places, this is not true – all this work has traditionally been seen as the role of government, not charitable donations. But this view is gradually changing, to accept that although government has a large role to play, so do individual charitable donations. But to help persuade individuals and businesses to make charitable donations, there needs to be a reliable, stable set of government rules to make sure that donated funds are properly used, properly accounted for, go toward strictly charitable activities, and do not simply leak away in corrupt activities.

Second, once a society has in place a solid structure of legal rules for charitable contributions – straight out giving – it needs the special structure of rules for SRI loans. What makes this special and different from regular contributions to charity is that individuals and businesses who make these loans are genuinely looking to get paid back. There needs to be a regulatory and legal structure in place so that these loans really are treated, for legal purposes, as enforceable loans, even if they carry a zero or discounted interest rate.


Remember – often the most important source of SRI funds comes, not from money people were already planning on donating, but on people’s savings, money they are counting on having back, as part of their retirements and other reasons. They will not hand over the money for SRIs unless they have strong reasons to think they are legally protected that the loan will be repaid. Even if they are legally protected, technically, the difficulty of going through legal mechanisms - lawsuits, courts, etc. - mean that they must additionally feel comfortable that the organization will repay even without the threat of the law.

And so they will additionally require assurance that the money will be properly accounted for within the charitable organization. That requires legal rules ensuring that these loans are as legally enforceable as any other loan, although it is a loan made to a nonprofit charity. But it also means legal rules that ensure that nonprofits are monitored by neutral, objective government charity agencies to ensure that they are following proper accounting rules. Problems of unaccountable charities need to be caught before they turn into financial scandals, if possible. But that requires, of course, that the government agency really be about neutral, objective accountability - not a means of political control by the government. Governmental watchdogs over charities mean one thing in Britain and a whole other thing in Putin's Russia.

These are important legal and economic requirements in order that SRIs can work. But the benefits of SRIs are becoming increasingly clear in places where the rules work well. Money can be recycled in the charitable sector, and the fact that it is recycled and not simply donated helps force nonprofit organizations to be more efficient in their work. Many variations of these basic patterns exist - an SRI investor accepting greater risk, for example, that the loan will not be repaid for the sake of the activity. SRIs are not for every kind of charitable organization but, with the right governmental regulations, they are a new and important tool of the nonprofit sector.

Thursday, November 01, 2007

Jihadist schedules of reinforcement in counterterrorism policy?

Beyond my work in counterterrorism policy as a legal matter, I also have a related interest in terrorism and, these days, jihadist terrorism as a matter of religious and political psychology, and the intersection of that psychology with legal regimes of counterterrorism.

One phenomenon that has not received sufficient attention is the effect of legal rules as a matter of behavioral affect of terrorists. We often say - correctly - that jihadist terrorists, who live in hope of heaven, cannot be deterred by ordinary criminal law and its sanctions, and that is true. We also talk about counterterrorism regimes and how they can psychologically radicalize individuals; this is also true in some cases, and a good example is the effect of taking someone who might not have been so very ideologically serious, locking them away at Guantanamo, and then handing them nothing to do but read the Koran. Should we be very surprised that this reinforces fanatical religious identity? Hardly. So there are ways in which legal regimes both fail to deter and reinforce the psychological attributes of jihandism.

One form of reinforcement seems to have gone unnoticed. This is speculative, but bears, I think, further investigation. Yesterday the Madrid bombers were acquitted of some of the most serious crimes. Prior to that, Padilla was found guilty in US court of various things - but observers would agree that the outcomes were in doubt until the moment the verdicts were read. Understood from the moral, legal, and political framework of the just, liberal, and democratic society, that uncertainty gives people reason to believe that the system is an impartial one - the outcome is not set in advance. (There is a problem with that comforting thought, of course, which is that it is not necessarily a sign of justice that verdicts in advance seem uncertain; in cases where guilt, to any outside observer, seems incontestable, radical uncertainty as to outcomes is actually a sign that the justice system is unreliable, not impartial and independent, but that is another issue.)

That same phenomenon, so comforting from a liberal legal standpoint as the proof of the rule of law, appears quite differently framed as a matter of behavioral psychology. Rather, the fact of terrorist trials having the appearance of being open as to result, and with an intermittent but unpredictable and indeed surprising element of what appears to be unexplainable acquital (intermittent reward) - well, this looks very much, and indeed, way too much like the classic reward reinforcement regime of classical behavioral conditioning. Yes, of course, there are not many terrorist trials, but it would not surprise if they are closely watched by some important Islamists. And there are other parts of the standard counterterrorism repertoire that also bear a certain resemblance to this classic behaviorist schedule of reinforcement - detention on a basis that is hard to explain, at least to outsiders, intermittent and unpredictable elements of release.

One might have thought that the psychological aim of counterterrorism policy would start not with schedules of reinforcement of jihadism, but something more like learned helplessness.

This is speculative, to be sure, but it is an area in which psychology might have some explanatory role. And, note, it is a role that lies at the intersection of psychology, sociology, and law. Pigeons, rats, slot machine players ... jihadists?