My annoyed response to Marty Lederman's post at Balkinization - Marty's response and my reply

(Marty Lederman took a sideswipe at me, here, at Balkinization. Below is the comment I posted to his post:) (Below I post Marty's reply from his blog, and my reply to it. Note that we are both considerably less heated than we started, and I think this has been, at least for me, a very helpful exchange for discussing these issues.) (Also, I had skipped over the first part of Marty's original post and didn't see him mention that he has just had ankle surgery - get well soon and best wishes for a full recovery.)

(I should add one more thing. I have received various calls from media places - radio shows, NPR, BBC, and so on, wanting to discuss these issues. I haven't taken the opportunity to do so, because I think I'm exactly what is not needed at the moment in these discussions. I'm a law professor talking about policy in moral terms. Whereas what is much more needed in practical policy discussions at this point is what Diogenes mentioned in an earlier comment on this blog - people in the intelligence community with actual experience of actual interrogation and its actual techniques. Those are the people with the relevant background at this point, not law professors like me.

As it happens, I have a pretty good knowledge of what I would regard as plain torture, from work as a human rights monitor in Guatemala, Panama, Georgia, Iraq, and so on, earlier in my career - perhaps that accounts in part for my jaundiced view that not all the things that Marty counts as torture really are. And maybe I'd feel differently about it if I were McCain and had gone through it. And just as obviously, I feel differently about it from any number of human rights workers who have the same experience of dealing with torturers and their victims as I. But I don't consider my background in having, for example, spent days debriefing a torturer who worked for years for the Guatemalan army to be all that useful in discussing what US interrogators should and shouldn't be able to do - in that case, we spent many hours talking about ways slowly kill people while extracting names from them, and how to abduct the victims off the street at bus stops - and I don't think it's very useful in deciding what US policy should be. So I don't think I'm a very good person for a media discussion of all this, which is why I have been turning them all down.)

***
(KA Response to Marty, posted to Balkinization.)

Marty,

I would appreciate it if, in attributing positions to me in your widely read blog, you would trouble to get them right. I am sure there is quite enough in them on their own to irritate your readers without having to mispresent them. So, to try to be clear. I have not endorsed torture. I have suggested that not all forms of interrogation that you consider torture necessarily are - I realize that you may not be able to tell the difference between disagreeing with you and endorsing torture, but, yes, there is one. I have said flatly that there is an absolute floor below which no treatment can go, because it constitutes torture - thereby rejecting Krauthammer's view - but also noting that the Torture Convention does not come with a users manual that establishes what actual interrogation practices actually constitute torture, and for that reason there needs to be public debate. I think the McCain admendment has problems as the resolution of that debate, as you do as well, but at least it is one. I find troublesome the importation of constitutional standards that are fundamentally about penology within a domestic democratic society; at bottom, though, I can live with the McCain amendment outcome. I realize that you view anyone who disagrees with you that waterboarding is self-evidently torture - even a Zarqawi in full possession of information that might save the lives over months of many innocent Iraqis - is merely endorsing torture. And possibly many, or even all of your readers here would agree with that. But in that case, you might bother to tell them that in your view Anderson endorses torture because he thinks under some circumstances waterboarding might be justified; and because I, Marty Lederman, don't, Anderson has thereby endorsed torture - rather than the considerably different statement that Anderson endorses torture in the same way, for example, that Krauthammer does. That is not the case. I don't appreciate the elision and the misprepresentation.

Marty's reply (from his blog comments):

Professor Anderson:

I was writing very quickly, and should have avoided the shorthand term "pro-torture," precisely because -- as I took pains to note ("many, but not all of whom . . . ") -- not all of those I identified have pronounced themselves in favor of "torture," as such, on any definition (I believe Rich Lowry, for instance, has come out squarely against it). I apologize if I left any misimpression. No doubt my phrasing shed more heat than light.

My principal intent in that passage was simply to provide links, so that readers could see for themselves where the debate was (distressingly, in my view) heading. It was mainly Krauthammer of whom I was thinking as an example of someone who is *expressly* proposing permitting "torture," as such (however one wishes to define it) -- a proposal that is not on the table for anyone in official Washington.

My aim is (and was) to be absolutely clear and fair about what is now publicly being debated. I don't wish to mischaracterize your views -- not in the slightest. So I hope you won't mind if, in the spirit of fairness and accuracy, I simply set out here some of the positions you conveyed in the post to which I linked. If I am wrong in any respect, I'd genuinely welcome correction:

Just to be clear at the outset: You specfically wrote that you were *not* "here arguing for" a "protocol established in advance for serious, unapologetic, and above all systematic torture"; you purported to have "genuinely mixed feelings" about it, and noted that "it seems odd [to you] not to discuss the idea.

"You also wrote that "I am willing to accept some absolute, rights based floor in treatment - even, possibly, in the ticking bomb scenario. I can't tell you what exactly that it is - but I can tell you it is not any of the stuff, behavior within the official policies, that seems so self-evidently below that threshold to Professor Luban.

"That is to say, you would set the "floor" for treatment below waterboarding, cold cell, and "long time standing" (all of which are apparently among the official policies of the CIA).

And you wrote that, with respect to possible detainees such as a Zarqawi, you "hope" that someone has "prepared a protocol and regime of deliberate mistreatment and abuse that, while falling short of putting him through Saddam's meatgrinder, would go far, far beyond the methods that Professor Luban thinks are beyond the pale. There are many things beyond officially sanctioned American interrogation techniques that fall short of actual torture and which ought to be used on a Zarqawi, because other people's lives also matter, also have intrinsic moral worth, including Iraqi and Jordanian lives, and it is not a question that within the first weeks or months of holding Zarqawi, obtaining such information is proximately about saving lives. Waterboard Zarqawi? In a heartbeat."

In other words, if I understand you correctly, you are in favor of an official protocol that includes waterboarding, and methods "far, far beyond" waterboarding, at least for *some* detainees.

As you note, we apparently disagree about whether these techniques do, in fact, constitute "torture" as a matter of law. I happen to think they do. Waterboarding, for instance, was a classic form of torture used by Torquemada and other tyrants. We have prosecuted military personnel for "torture" in the past when they have used waterboarding. I'm fairly confident that if our enemies used waterboarding on U.S. detainees, the President and all 535 members of the Congress (not to mention the general public) would call it "torture," and we would unhesitatingly prosecute such conduct as "torture." Most importantly, it seems to me that, even under the narrower U.S. definition of "torture," waterboarding is, in fact, specifically intended to result in severe physical suffering, and thus *is* torture.

Perhaps I'm wrong about all that. (I welcome any legal arguments to the contrary.) Perhaps it's not "torture," as such. And one thing is certainly clear: You and I disagree on whether it's "torture."

But regardless of whatever nomenclature one chooses to use, my understanding is that you propose a protocol with techniques including waterboarding and methods "far, far beyond it." As you know, I was a bit taken aback by this suggestion (mostly because you had earlier been proposing a strong U.S. embrace of the standards of Common Article 3). But I take your views and perspective very seriously, and would appreciate being corrected if I have erred in any particular.

Thanks, and my apologies once again for any misunderstanding.

(My reply to Marty: )

Marty, likewise, I apologize for overreacting in that note above - I wrote hastily.

Taking into account something that Diogenes wrote about this on my blog - he wrote to the effect that none of us were experts in actual interrogation and should therefore be careful about conjecturing what might or might not work - I do regret saying that I would endorse things "far, far beyond" what is now official policy, having no particular expert idea what those might be.

But, yes, I do think that in the Zarqawi situation, waterboarding is acceptable, as are cold cell and long standing. I do not think that in and of themselves, Torqemada notwithstanding, they constitute actions which are so far beyond the civilized as to be torture - at least not when done to someone such as Zarqawi whose information could indeed save many Iraqi lives.

There are two things to note here. The first is that (thinking it over from my last post), I do not think the "high value" detainee is morally the same as the ticking bomb scenario. First, it is not hypothetical, as Iraqi forces have once captured and mistakenly let Zarqawi go and might well capture him again, and second, the value of the information is partly short term, but mostly long term and, in that sense, not justified by the immediate threat of the ticking bomb hypothetical. The same applies to at least some of the people held in secret detention that even Human Rights Watch admitted, despite its preference to see them put in the regular criminal justice system, were bad, bad guys (see the quote in the NYT story, don't have the cite offhand).

The second, however, is that so treating Zarqawi requires recourse to the principle that if you know to a certainty that you have Zarqawi, his culpability allows you to take measures against him short of torture (however you define it) that you would not be permitted to take against someone whose status was genuinely unknown to you. This is an endorsement of waterboarding Zarqawi, but it is exactly the opposite of waterboarding a detainee about whom you have no information. As to the latter, I believe morally you can do less to him than even a generous reading of the McCain amendment now allows.

That principle is not now incorporated into policy. On the contrary, we have an official set of rules that set a standard which, in my view, allows far too harsh a treatment against someone about whom we genuinely know nothing at all, yet too easy a standard against someone, eg Zarqawi, about whom one knows only too much. In my view, we need a standard for interrogation short of torture which takes what we already know, if anything, about the detainee into account in our treatment of him. Not everyone would agree this is a correct moral principle - David Luban, with whom I've corresponded a bit about this since my post about his article, has expressed strong doubts that this is morally right (although it was a passing remark and shouldn't be taken as defining necessarily his view).

Maybe he is correct. But the principle corresponds to many people's moral intuitions (well, mine anyway) and I certainly think it deserves to be debated in the formulation of interrogation policy - the failure to do so is one reason I have trouble with both the McCain amendment and the Bush administration's position (a position which, for a long time, has been only indirectly about interrogation policy and mostly about executive authority.As to the McCain amendment itself. It is a compromise that, like all good compromises, leaves everyone somewhat dissatisfied. Its most positive step is that it reflected the involvement of Congress in a public debate over what is acceptable and not, and the end of the Bush administration's position that this is all a privileged exercise of executive power. If the struggle against jihadist terror is to go on for the long term in some form, in the way in which President Bush has repeatedly said - and convinced me - then it must do so on a bipartisan, legislatively mandated basis, not as the attempt by a waning, second term administration to husband its executive power. The form of the institutional struggle against jihadism will of necessity be a compromise between many factions and interests, but it will die with the next president, Republican or Democrat, unless institutionalized through the Congress.

A crucial element of that is defining what can be done to detainees, what is acceptable and not. Our repeated flash point - alas, I don't think you would have even noticed my blog post had I not favorably mentioned waterboarding - has been deeply different, deeply personal reactions over the margin of what is and is not torture. Those divisions run across the American and, to judge by recent polls, international publics. In those circumstances, the only way I know to resolve the difference is by open debate in democratic institutions - it cannot be settled for the United States in the CIA, the White House, the OLC, but only in the Congress. So I welcome greatly the move to bring this debate to Congress and the public. I have views, as do many people, but the most important thing is to reach conclusions on such deeply contested matters democratically.

That said, I still would have preferred - and would prefer, in the fuller debate that I hope will still occur over these matters in Congress - that the standard that be adopted be taken from Common Article 3. Not that it be taken to apply as a legal matter, but the position taken by Matthew Waxman, in his battles with Addington et al., that although it does not apply as a matter of international law, it still provides the best available standard for defining the actual practices that are acceptable and not acceptable. I think it is a better standard than the McCain amendment's reach to US constitutional standards that are about a very different kind of detention and a very different kind of detainee.

That said, my reading of the history to CA3 and the debate surrounding it would suggest that its framers would not have understood for a moment that someone who, in possession of information that could lead to the prevention of massive violations of the Geneva Conventions themselves - direct terror attacks upon civilians - would nonetheless have to be treated according to the same standards as a soldier under Geneva 3. The CA3 standard was intended, as I understand its history, to afford a minimum standard of treatment, equivalent in the most basic essentials, to standard POW treatment - to a combatant who had comported himself in accordance with the laws of war. That was the template - the civil war combatant who might indeed be tried for treason by his government, but who had not himself engaged in what, in international war, would be grave breaches.

I find no basis in the (admittedly relatively sparse) history of CA3 for thinking that this same standard- short of actual torture - would apply to someone in possession of knowledge leading to massive violations of the laws of war, the direct attack upon civilians. Note that this is not talking about the captured combatant in possession of knowledge that might spare his opponent's troops from harm, but instead knowledge which, if obtained, might prevent serious violations of the laws of war themselves. I do not think this position is inconsistent with CA3 -far from it.

But this, too, is subject to much debate, especially given that CA3 has a relatively sparse history. Fundamentally, I think that this, too, must be carried into Congressional debate, as part of a systematic formulation of what is acceptable and not. At bottom, the widely varying reactions to concrete practices, and under different circumstances, mean that there is no alternative to a casuistical approach, taking each in turn. Abstract formulation of a standard will only get us so far - and while it has allowed the administration maximum freedom of action and discretion - and likewise its opponents maximum freedom of criticism - the time has long since come to take each practice and technique and decide about it, one by one, in Congress and before the public.

I do apologize for my earlier nastily personal remark - I hit the send button hastily. I should add that on my blog, I do change my mind about things if I think I've been wrong - it is a blog, after all, and I write quickly in first draft mode, not as final product. I've identified a couple of those areas here; others where I remain convinced I'm right. But it is very helpful to discuss these issues with you, precisely because of the important areas of disagreement.

Best wishes, Ken Anderson

ps. Let me add one thing about a "systematic protocol of torture" in the ticking time bomb scenario, that you mention above. As I said in my earlier post, if you are commited, as Krauthammer is, to the possibility of torture in the ticking time bomb scenario, and if you are committed to it on what seem the only possible moral grounds, viz., sheer consequentialism, then consequentialism will force you, it seems to me quite uncontroversial that you must consider whether your torture will be effective. If it will not, then you cannot do it; if you propose to do it, you must propose to do effectively - which might very well require that you consider how you are going to do it in advance. I don't think most consequentialist moral philosophers would have much difficulty accepting that - if there are moral problems with that position, they lie with the proposition that it would be okay to torture even in those circumstances, not with the proposition that if you are going to torture, you had better do it effectively. In any case, in that part of the discussion, I was dealing solely with the ticking time bomb scenario as Krauthammer presented it which, I grant, is mostly hypothetical. The real issues arise in the (different) "high value" target discussion.

Blows Against the Empire

This post is decidedly off-topic and awkwardly confessional. I happened to notice that the remastered CD of Paul Kantner/Jefferson Starship's 1970 album Blows Against the Empire has been reissued.

And I promptly bought a copy. I don't ordinarily try to recover all the pop and rock stuff of my youth - Bob Dylan's Blood on the Tracks is an exception - and I've mostly moved over to classical music, early baroque especially, and stuff that I'm interested in as a bad amateur cellist - I've more or less just finished learning a lovely gamba sonata transcribed for cello by Buxtehude, and I've worked my way through several Corelli violin sonatas transcribed for cello. Im about to take up the second of Domenico Gabrielli's cello sonatas, in A major - it being some of the earliest music ever written for cello, around 1685 or so. It's not that I don't still like the music of my young days - I do - but I hate wallowing in it very much, and when I listen to pop, I try to make it at least within the past ten or fifteen years, a lot of alt country, the great Buddy Miller and some Alison Kraus.

Still, I'm amazed to find, thirty five years later, that I pretty much remember every word, pause, phrase, stammer, and guitar note of that exhilirating, peculiar album. Or maybe not - I must have listened to it an easy thousand times, as I hope eveyone does sometime, somewhere in their youth with goofy popular songs.

I ran across it when I was thirteen years old - too young, even in Claremont, California, a then-radicalized, countercultural college town in southern California, to really be part of the sixties. I saw it through a child's eyes - which is to say, I didn't notice it especially, and came of age late enough to feel a certain cringe of embarrassment for people who had been genuine young adults in time for the Summer of Love. I still cringe for them - and I came of age in the cringeable seventies, so heaven help me. But as a devout Mormon kid who eventually went on a Mormon mission to Peru before eventually dropping out of the Mormon church, I was counter-cultural to both the culture and the counter-culture. None of it was really me - I hung out with hippie kids and grew my hair long, but never drank or did drugs. I recall my 16th birthday party, a surprise party for me - in which everyone but me got so wasted I spent the party taking care of sick and bad tripping friends. My girlfriend in those years was also a sort of hippie girl - and a devout Christian Scientist who likewise hung out with the wasted kids but never did it herself. (As a parent today of a thirteen year old girl, I can't imagine wanting my daughter hanging out at sixteen with a kid like me, but there you are.)

(Sometime in the early 1970s, I took Lauren into Los Angeles to a staging at the Mark Taper Forum of two one act Brecht pieces, the very decadent Mahagonny Singspiel and the austere, revolutionary-reactionary, deeply Stalinist The Measures Taken. We were sixteen and in love - she was beautiful, boyish figured and thick dark hair that fell to her waist. I loved so much to be with her, we were the only adolescents in that serious theatre audience of adults, and as I look back I see her as the adults saw us, the Los Angeles doctors and their wives, the professors, the Hollywood people, watching a pair of kids who had eyes only for each other, as they, the grownups, went through the years in which the culture celebrated divorce and affairs and drugs even among the haute bourgeoisie. I paid for that theatre excursion working my first real job, as a busboy at sixteen in the Pomona College cafeteria - alongside the black youths who came to work in the kitchens of the college - in a dining hall decorated with one of the two or three murals by the Mexican muralist Jose Clemente Orozco, a magnificent three story nude of Prometheus bringing the fire down from heaven - the students annoyed me so much, so spoiled, that I got fired from that job for one day posting as the dinner entree, "Roast German Shepherd" - no sense of humor.)

But this Jefferson Starship album had everything I could ever want as the odd kid I was - a science fiction opera based on stories I had known and loved for years by Robert Heinlein, a theme about a bunch of drugged out hippies stealing a starship and taking off for Eden - echoes of many sci-fi books of my youth and indeed a couple of Star Trek episodes from the period - raucous, cutting lyrics all about the betrayal by Amerikkka and all that stuff, and the driving, irreplaceable electric guitars of Jerry Garcia. As I read the reviews and commentary today, I understand the cultural and political history that I didn't understand then - the hippie feeling of utter betrayal by bourgeois America, the escapism, the anger over the collapse of the Haight and flower power social project, the desire to cut and run as the hippie thing didn't seem, by 1970, to be working out as desired. When I discovered it a couple of years later, once I reached high school, it just seemed angry and edgy, and suited my mood.

Although the individual musical performances are often terrific - Jerry Garcia on lead guitar on Starship, Jack Casady on bass, Jerry Garcia on pedal steel guitar - the music is not actually very good. Well, not quite - the love song Have you seen the stars tonight, written with the help of David Crosby, is quite lovely, a keeper. But as music, it is just a couple of endlessly repeated chords that provide a sort of chanting background for the lyrics. It rises or falls on the lyrics, all those images of departing for a whole different place where no one in authority will bug you. There's an intense energy to it all, but without Jerry Garcia redeeming it, there wouldn't be much to it muscially.

(While a fan, I was never a Deadhead. Yet I know have an inkling that Garcia is how I would ideally like to play the ... cello. This is not as whacko as it sounds - I have around here someplace a lovely gamba album, by a young Israeli gamba player; she dedicated it to Jerry Garcia, which struck me when I first bought the album as the silliest thing ever, for the stately ancient French music of Couperin and Marais, and yet after a while, I grasped what she meant - there is something about the guitar work of Garcia, his ability to take a percussive electric instrument and give it the lyric quality of the violin or cello that is something I wish I had as a cellist. And, for that matter, I found a transcription note for note of Santana's La samba pa ti and have been learning to play it, bit by bit, on the cello - with an eye to playing it on my Yamaha electric cello which, with an amplifier and the gain turned up high, can achieve a very electric guitar sound to it.)

What astonishes me, though, is to read through the comments on Amazon and various web sites about the re-release of Blows Against the Empire and grasp just how topical many of these aged ex hippies think it still is. Granted, I've moved a long way from the seventies left - and in one sense was never really there, and was never part of the sixties, even just by a few years. (One of the peculiarities of generational culture is that the shifts are not smooth - my wife, only two years older than me, was a sixties person because of the fact that she was in college while the Vietnam war was still on. It made a difference to be in college then, as distinct from merely being in the first couple of years of high school. The bombing of Cambodia was a big deal, as I recall, at my high school, but that was because it was a college town - if you were in college then, it was a much bigger deal.) But there are a lot of people out there for whom these years, now, really are the War, the betrayal of - well, what, exactly? Nostalgia, so far as I can tell. But then I wasn't there in the sixties, except as a disconnected child. Maybe you had to be there, as a semi-grownup.

But, finally, this album was the first occasion in my life for writing what I suppose was juvenile cultural criticism. I wrote a long paper on it for an english class in high school. I recall that I talked about escapism, mostly, and how these people seemed to have given up the ideal of engagement. I talked a lot about Heinlein and his libertarian philosophy - I only now found out that the album was nominated for a Hugo Award. I don' t think I talked about the anger in the album - probably because I took it entirely for granted.

(This was in a class where we read Hamlet one semester and Ulysses the next, and could pick one foreign classic for our own - Stendhal's Red and Black, naturally, which I have reread almost without exception every year since I was fourteen - and then one contemporary poem or essay or what have you. I had discovered Blaise Cendrars ("if it weren't for the life I've led, I surely would have committed suicide") and Albert Camus of The Fall and The Rebel, but not yet Rene Char and the astonishing Leaves of Hypnos. And Alfred Jarry and Friedrich Durrenmat and Bertolt Brecht, and my girlfriend had given me The Pillow Book. And a slightly later girlfriend, a much older woman who subsequently went off with the guitarist Mason Williams, searched through old LA porn shops to present me with original banned editions of Henry Miller - though I never had the faintest interest or patience, then or now, with Kerouac and the Beats or really much of 20th century American literature. The great retelling of arthurian legend, Thomas Berger's Arthur Rex, was not published until 1979.)

It's a fresh wind that blows against the empire, indeed.

Walter Laquer in the TLS on the search for a general theory of terrorism

Walter Laquer, one of the handful of the finest theorists of the phenomenon of terrorism, has an outstanding review essay in the Times Literary Supplement of December 9, 2005, "To cut a throat slowly: The search for a general theory of terrorism." Here, at the TLS's new and much, much improved website.

A key point Laquer makes is that there is a

"tendency among authors (not only among political-science professors) not merely to describe an important and fascinating phenomenon, but to attempt to establish a general theory of terrorism and political violence. So far, no such theory has emerged and it is more than doubtful whether it ever will."

As a member myself of the editorial board of a journal called, in fact, the Journal of Terrorism and Political Violence, Lacquer captures my view entirely.

Secretary Rice criticizes world community for not supporting Saddam trial

In yesterday's blogjam on rule of law and the Saddam trial, I discussed briefly the effective boycott of the Saddam trial by the so-called international community - the "moral high ground" states that mostly like to kibbitz and international NGOs who do pretty much the same. I also discussed it in an earlier post on the Saddam trial on this blog.

Secretary of State Rice makes much the same point in one section of her speech to the Heritage Foundation, here, in "An overview of international support for Iraqi democracy on the eve of the December 15, 2005 elections."

As she says with respect to the Saddam trial:

"Yet, as welcome as this broad support is, I'm sad to say that the international community has barely done anything to help Iraq prosecute Saddam Hussein. All who expressed their devotion to human rights and the rule of law have a special obligation to help the Iraqis bring to justice one of the world’s most murderous tyrants. The international community’s effective boycott of Saddam’s trial is only harming the Iraqi people, who are now working to secure the hope of justice and freedom that Saddam long denied them."

I could not agree more. I would probably put it in less diplomatic language, too.

PajamasMedia blogjam on Saddam trial

I am going to be joining a Pajamas Media blogjam at 3:00 pm EST, on the topic of the Saddam trial. One of the questions put in the opening statement is whether this trial is one of those pivotal "trials of the century," or something different or something less. Well, here are some initial reactions, which I'll try to incorporate into the blogjam discussion.

First, the place for news and analysis of the Saddam trial is Grotian Moment, a blogsite that links to the latest trial news along with expert analysis by a number of leading experts with quite varied points of view.

Second, what is the importance of this trial? It is very important for the Iraqi people, of course - I don't think anyone would really dispute that, although perhaps a little less so now that Saddam's crazy sons are also dead. But how important is it for the rest of the world? I would like to think that this trial is not just important because of justice meted out to one of the world's most appalling dictators, but that it will also serve as an exemplar into this new century. However, for a couple of reasons, I don't actually think that will be the case. Why not?

• First, precisely because it is a local trial, conducted by local judges, using Iraqi law, and aimed at satisfying an Iraqi concept of justice. Yes, the trial process has been heavily advised by Americans and others, and yes, Iraqi law allows international law to be brought into it, etc. And I think it is absolutely right that the trial be "local" (really, more "mixed"). Nonetheless, for these very reasons, it will have less resonance as an international precedent, even if the charges heard go beyond the current narrow charges of massacre in 1982 to include such large scale acts as the 1988 Anfal campaign (which I had a small role in helping to investigate for Human Rights Watch in a mission to Kurdistan in 1992). I am very skeptical of grandiose international tribunals, with grandiose pretensions to be establishing big new rules of international law - I much favor, if the tribunal must, because of incapacity or logistics or what have you, be international and not local, the sort of mixed tribunal as was established for Sierra Leone.
• Second, I think it will not be considered a "trial of the century" because it will not wind up establishing grand new rules or procedures. On the contrary, the substantive crimes at issue here are well covered by existing Iraqi and international law. The rules of procedure, such as allowing concealed witnesses and judges, etc., have been used in the Yugoslavia tribunal and elsewhere, and do not introduce grand new concepts. Part of the point of the design of this trial, after all, was aimed at showing that even though it was Iraqi and American design, it essentially used all the stuff found in existing international tribunals - the designers did not want to introduce new concepts, because the tribunal already had enough problems of legitimacy.
• Third, the trial will be downplayed by the pressure groups - NGOs such as Amnesty International and Human Rights Watch - that would typically want to play up, indeed overplay, the importance of such tribunals. Why would they want to do this? Fundamentally because it is an American/Iraqi creation, and not the creation of those groups' favored mechanism of international justice, tribunals created by the Security Council or UN system. I don't think it matters as much as it should to the international human rights organizations whether the trial is procedurally fair or not - what matters more than it should to those groups is that justice in such cases as Saddam's be a monopoly of international organizations. It is a worship of internationalism for its own sake, not a pursuit of justice, and as such is a very disturbing trend for international human rights monitors who prefer a certain kind of internationalist procedure to substantive justice if it happens to be meted out by nation states, or at least involves the United States. This is where the charge of "victors' justice" will come in - so long as the United States and the new Iraqi government conduct the trial, it won't really matter how fair it actually is, it will get dismissed as victors' justice - and if the trial looks especially fair in fact, then it still will be dismissed as "well, it has the appearance of victors' justice." (What the reaction would be if Saddam were somehow acquitted? I don't know. What would the the reaction be if Milosevic were acquitted?)
• Fourth, thinking of the Saddam trial as a trial of the century invites comparison to Nuremberg as the international trial of the century. But this makes some important historical mistakes. Nuremberg was not thought of as the trial of the century, really, until the 1990s. (I have an earlier post on the 60th anniversary of Justice Jackson's opening statement at Nuremberg on this topic.) Nuremberg was largely ignored in the decades after the trial, partly because of the Cold War, partly because Europe wasn't really interested in remembering the Holocaust, but in large part because the major point of the trial - the prosecution of the crime of aggressive war - did not survive the UN charter, which committed the use of force either to self defense and related customary international law or the Security Council. Jackson's juridification of the crime of aggressive war, which he regarded as the real achievement of the trial, did not survive long at all - aggressive war remained within the realm of international politics, not international judges. What we remember Nuremberg for today is war crimes - but those were essentially dismissed by Jackson as (correctly) stating mostly already existing law and handed over to the French and Soviets who, it must be said, had suffered more of those crimes, certainly of course than the Americans or British. Even on the topic of war crimes, even the International Committee of the Red Cross did not pay much attention to Nuremberg - it preferred, as did nearly all international law scholars on the Continent and most in the US, codified laws of war in the form of the Geneva Conventions, not judicial proceedings as the basis of law. Only later did the ICRC take the Nuremberg precedents on board.
• There is not getting around the death penalty as being a key feature of why various international actors have refused to get involved. I think that this is cultural imperialism at its worst, myself, and shows an astonishing and cruel indifference to the views of Iraqis themselves and respect for their legal traditions, but hardly a surprising one.

Okay, time to go to ... Pajamas Media for this little blogjam.

Matthew Waxman leaving Defense for State

Matthew Waxman, the Pentagon's point person on detainee affairs, is leaving that post for a high level position at the State Department. Congratulations, Matt! New York Times article, here. (And see my brief update, April 20, 2007, here.)

Excerpts:
***
December 11, 2005, Sunday
Pentagon Expert on Detainees Plans to Leave for State Dept.

By ERIC SCHMITT
The New York Times

WASHINGTON, Dec. 10 - The Pentagon's chief adviser on detainee issues is leaving to take a high-level policy job at the State Department, administration officials said on Saturday.

The adviser, Matthew C. Waxman, will become the principal deputy director of the department's policy planning staff, said administration officials who were granted anonymity because Mr. Waxman's new job had not been officially announced.

Since filling a position created nearly two years ago to help correct the damage caused by the Abu Ghraib prisoner abuse scandal, Mr. Waxman has repeatedly clashed with top aides to Vice President Dick Cheney and senior Pentagon officials. These have included Stephen A. Cambone, the under secretary of defense for intelligence policy, and William J. Haynes II, the department's general counsel, who have pushed to limit the rights of terror suspects and other detainees.

Several weeks ago, David S. Addington, who was then Mr. Cheney's counsel, assailed Mr. Waxman during a briefing, objecting to his insistence that a new set of Pentagon standards for handling terror suspects adopt language from the Geneva Conventions barring cruel, humiliating and degrading treatment.

Colleagues and human rights advocates said that while Mr. Waxman had expressed frustration over the internal administration policy fights, he was not being forced out, and he had started lining up his new job at the State Department before his confrontation with Mr. Addington, who is now Mr. Cheney's chief of staff.

"He's tried very hard," said Elisa Massimino, Washington director of the advocacy group Human Rights First. "But everybody recognized that he was having to go up against people who both outrank him and were deeply involved setting the policies that he was challenging."

A Pentagon spokesman, Bryan Whitman, declined to comment on Mr. Waxman's departure.
Mr. Waxman, as the deputy assistant secretary for detainee affairs, was a primary adviser to Defense Secretary Donald H. Rumsfeld on detainee matters and his point man for dealing with foreign governments and international organizations on the issue.

He led an internal Pentagon committee of lawyers, intelligence officers and policy analysts to coordinate detention policies and practices, and was charged with ensuring that Red Cross inspection reports from American military prisons landed on Mr. Rumsfeld's desk promptly.
Mr. Waxman, 33, a Bronx-born, Yale-educated lawyer, was a National Security Council official and a clerk to Justice David H. Souter. He is expected to assume his job at the State Department early next month.

Pajamas media blogjam on rule of law in Iraq and war on terror

(Update, Sunday, December 11, 2005. The other participants will be Glenn Reynolds, David Corn, Jim Bennett, Omar of Iraq the Model, and moderated by Austin Bay. The topic is the Saddam trial, and whether it is the next Nuremberg or OJ or something inbetween or something else altogether.)

I will be participating in a Pajamas Media blogjam on Monday, December 12, at 3:00 pm EST, on the topic of the rule of law and the war on terror. I'll be one of several participants - Austin Bay will be moderating, and I'm not entirely sure who the other participants will be. The topic is set to include the Saddam trial - with its very Saddam-like strategy of killing your own defense attorneys and then depending on the international community to declare the trial thereby unfair to you.

The blogjam can be found at Pajamas Media, here, and it will be archived there, too.

But I wanted to add that for those interested in news and analysis of the Saddam trial, by far the best source is Grotian Moment, a blog with law professors and others following the trial very closely. It includes my good friends Ruth Wedgwood of Johns Hopkins SAIS, Paul Williams of my very own American University faculty and Mike Newton, formerly a law professor at West Point and someone who spend considerable time in Iraq working on the set up for the trial and now at Vanderbilt Law School. It is also very nice of Case Western University to host the site.

Andrew Sullivan responds to Charles Krauthammer on torture

Andrew Sullivan responds to Charles Krauthammer on the question of torture, in The New Republic, "The Abolition of Torture," December 19, 2005 issue, here (sub req'd).

(One thing I am curious about, unrelated entirely to the substance of the essay - I don't know the answer to this, but am curious. Sullivan talks throughout this essay about America as though it were his. Christopher Hitchens, another British intellectual who long ago made the United States his spiritual as well as physical home, at some point recognized that he had started talking about the country, the constitution, the United States as his and ours, and so did a very honorable thing - he took out US citizenship. I am curious to know whether Sullivan has ever done the same.)

Excerpts:

***
WINNING THE WAR ON TERRORISM
WITHOUT SACRIFICING FREEDOM.

The Abolition of Torture

by Andrew Sullivan
Post date: 12.07.05 Issue date: 12.19.05
The New Republic

Why is torture wrong? It may seem like an obvious question, or even one beneath discussion. But it is now inescapably before us, with the introduction of the McCain Amendment banning all "cruel, inhuman, and degrading treatment" of detainees by American soldiers and CIA operatives anywhere in the world. The amendment lies in legislative limbo. It passed the Senate in October by a vote of 90 to nine, but President Bush has vowed to veto any such blanket ban on torture or abuse; Vice President Cheney has prevailed upon enough senators and congressmen to prevent the amendment--and the defense appropriations bill to which it is attached--from moving out of conference; and my friend Charles Krauthammer, one of the most respected conservative intellectuals in Washington (and a New Republic contributing editor) has written a widely praised cover essay for The Weekly Standard endorsing the legalization of full-fledged torture by the United States under strictly curtailed conditions. We stand on the brink of an enormously important choice--one that is critical, morally as well as strategically, to get right.
This debate takes place after three years in which the Bush administration has defined "torture" in the narrowest terms and has permitted coercive, physical abuse of enemy combatants if "military necessity" demands it. It comes also after several internal Pentagon reports found widespread and severe abuse of detainees in Afghanistan, Iraq, and elsewhere that has led to at least two dozen deaths during interrogation. Journalistic accounts and reports by the International Committee of the Red Cross paint an even darker picture of secret torture sites in Eastern Europe and innocent detainees being murdered. Behind all this, the grim images of Abu Ghraib--the worst of which have yet to be released--linger in the public consciousness.
In this inevitably emotional debate, perhaps the greatest failing of those of us who have been arguing against all torture and "cruel, inhuman, and degrading treatment" of detainees is that we have assumed the reasons why torture is always a moral evil, rather than explicating them. But, when you fully ponder them, I think it becomes clearer why, contrary to Krauthammer's argument, torture, in any form and under any circumstances, is both antithetical to the most basic principles for which the United States stands and a profound impediment to winning a wider war that we cannot afford to lose.

Torture is the polar opposite of freedom. It is the banishment of all freedom from a human body and soul, insofar as that is possible. As human beings, we all inhabit bodies and have minds, souls, and reflexes that are designed in part to protect those bodies: to resist or flinch from pain, to protect the psyche from disintegration, and to maintain a sense of selfhood that is the basis for the concept of personal liberty. What torture does is use these involuntary, self-protective, self-defining resources of human beings against the integrity of the human being himself. It takes what is most involuntary in a person and uses it to break that person's will. It takes what is animal in us and deploys it against what makes us human. As an American commander wrote in an August 2003 e-mail about his instructions to torture prisoners at Abu Ghraib, "The gloves are coming off gentlemen regarding these detainees, Col. Boltz has made it clear that we want these individuals broken."

What does it mean to "break" an individual? As the French essayist Michel de Montaigne once commented, and Shakespeare echoed, even the greatest philosophers have difficulty thinking clearly when they have a toothache. These wise men were describing the inescapable frailty of the human experience, mocking the claims of some seers to be above basic human feelings and bodily needs. If that frailty is exposed by a toothache, it is beyond dispute in the case of torture. The infliction of physical pain on a person with no means of defending himself is designed to render that person completely subservient to his torturers. It is designed to extirpate his autonomy as a human being, to render his control as an individual beyond his own reach. That is why the term "break" is instructive. Something broken can be put back together, but it will never regain the status of being unbroken--of having integrity. When you break a human being, you turn him into something subhuman. You enslave him. This is why the Romans reserved torture for slaves, not citizens, and why slavery and torture were inextricably linked in the antebellum South.

What you see in the relationship between torturer and tortured is the absolute darkness of totalitarianism. You see one individual granted the most complete power he can ever hold over another. Not just confinement of his mobility--the abolition of his very agency. Torture uses a person's body to remove from his own control his conscience, his thoughts, his faith, his selfhood. The CIA's definition of "waterboarding"--recently leaked to ABC News--describes that process in plain English: "The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt." The ABC report then noted, "According to the sources, CIA officers who subjected themselves to the waterboarding technique lasted an average of 14 seconds before caving in. They said Al Qaeda's toughest prisoner, Khalid Sheikh Mohammed, won the admiration of interrogators when he was able to last between two and two and a half minutes before begging to confess."

Before the Bush administration, two documented cases of the U.S. Armed Forces using "waterboarding" resulted in courts-martial for the soldiers implicated. In Donald Rumsfeld's post-September 11 Pentagon, the technique is approved and, we recently learned, has been used on at least eleven detainees, possibly many more. What you see here is the deployment of a very basic and inescapable human reflex--the desire not to drown and suffocate--in order to destroy a person's autonomy. Even the most hardened fanatic can only endure two and a half minutes. After that, he is indeed "broken."

The entire structure of Western freedom grew in part out of the searing experience of state-sanctioned torture. The use of torture in Europe's religious wars of the sixteenth and seventeenth centuries is still etched in our communal consciousness, as it should be. Then, governments deployed torture not only to uncover perceived threats to their faith-based autocracies, but also to "save" the victim's soul. Torturers understood that religious conversion was a difficult thing, because it necessitated a shift in the deepest recesses of the human soul. The only way to reach those depths was to deploy physical terror in the hopes of completely destroying the heretic's autonomy. They would, in other words, destroy a human being's soul in order to save it. That is what burning at the stake was--an indescribably agonizing act of torture that could be ended at a moment's notice if the victim recanted. In a state where theological doctrine always trumped individual liberty, this was a natural tactic.

Indeed, the very concept of Western liberty sprung in part from an understanding that, if the state has the power to reach that deep into a person's soul and can do that much damage to a human being's person, then the state has extinguished all oxygen necessary for freedom to survive. That is why, in George Orwell's totalitarian nightmare, the final ordeal is, of course, torture. Any polity that endorses torture has incorporated into its own DNA a totalitarian mutation. If the point of the U.S. Constitution is the preservation of liberty, the formal incorporation into U.S. law of the state's right to torture--by legally codifying physical coercion, abuse, and even, in Krauthammer's case, full-fledged torture of detainees by the CIA--would effectively end the American experiment of a political society based on inalienable human freedom protected not by the good graces of the executive, but by the rule of law.

The founders understood this argument. Its preeminent proponent was George Washington himself. As historian David Hackett Fischer memorably recounts in his 2004 book, Washington's Crossing: "Always some dark spirits wished to visit the same cruelties on the British and Hessians that had been inflicted on American captives. But Washington's example carried growing weight, more so than his written orders and prohibitions. He often reminded his men that they were an army of liberty and freedom, and that the rights of humanity for which they were fighting should extend even to their enemies. ... Even in the most urgent moments of the war, these men were concerned about ethical questions in the Revolution."

Krauthammer has described Washington's convictions concerning torture as "pieties" that can be dispensed with today. He doesn't argue that torture is not evil. Indeed, he denounces it in unequivocal moral terms: "[T]orture is a terrible and monstrous thing, as degrading and morally corrupting to those who practice it as any conceivable human activity including its moral twin, capital punishment." But he maintains that the nature of the Islamofascist enemy after September 11 radically altered our interrogative options and that we are now not only permitted, but actually "morally compelled," to torture.

This is a radical and daring idea: that we must extinguish human freedom in a few cases in order to maintain it for everyone else. It goes beyond even the Bush administration's own formal position, which states that the United States will not endorse torture but merely "coercive interrogation techniques." (Such techniques, in the administration's elaborate definition, are those that employ physical force short of threatening immediate death or major organ failure.) And it is based on a premise that deserves further examination: that our enemies actually deserve torture; that some human beings are so depraved that, in Krauthammer's words, they "are entitled to no humane treatment."

Let me state for the record that I am second to none in decrying, loathing, and desiring to defeat those who wish to replace freedom with religious tyranny of the most brutal kind--and who have murdered countless innocent civilians in cold blood. Their acts are monstrous and barbaric. But I differ from Krauthammer by believing that monsters remain human beings. In fact, to reduce them to a subhuman level is to exonerate them of their acts of terrorism and mass murder--just as animals are not deemed morally responsible for killing. Insisting on the humanity of terrorists is, in fact, critical to maintaining their profound responsibility for the evil they commit.

And, if they are human, then they must necessarily not be treated in an inhuman fashion. You cannot lower the moral baseline of a terrorist to the subhuman without betraying a fundamental value. That is why the Geneva Conventions have a very basic ban on "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment"--even when dealing with illegal combatants like terrorists. That is why the Declaration of Independence did not restrict its endorsement of freedom merely to those lucky enough to find themselves on U.S. soil--but extended it to all human beings, wherever they are in the world, simply because they are human.

evertheless, it is important to address Krauthammer's practical points. He is asking us to steel ourselves and accept that, whether we like it or not, torture and abuse may be essential in a war where our very survival may be at stake. He presents two scenarios in which he believes torture is permissible. The first is the "ticking bomb" scenario, a hypothetical rarity in which the following conditions apply: a) a terrorist cell has planted a nuclear weapon or something nearly as devastating in a major city; b) we have captured someone in this cell; c) we know for a fact that he knows where the bomb is. In practice, of course, the likelihood of such a scenario is extraordinarily remote. Uncovering a terrorist plot is hard enough; capturing a conspirator involved in that plot is even harder; and realizing in advance that the person knows the whereabouts of the bomb is nearly impossible. (Remember, in the war on terrorism, we have already detained--and even killed--many innocents. Pentagon reports have acknowledged that up to 90 percent of the prisoners at Abu Ghraib, many of whom were abused and tortured, were not guilty of anything.) But let us assume, for the sake of argument, that all of Krauthammer's conditions apply. Do we have a right to torture our hypothetical detainee?

According to Krauthammer, of course we do. No responsible public official put in that position would refuse to sanction torture if he believed it could save thousands of lives. And, if it's necessary, Krauthammer argues, it should be made legal. If you have conceded that torture may be justified in one case, Krauthammer believes, you have conceded that it may be justified in many more. In his words, "Once you've established the principle, to paraphrase George Bernard Shaw, all that's left to haggle about is the price."

But this is too easy and too glib a formulation. It is possible to concede that, in an extremely rare circumstance, torture may be used without conceding that it should be legalized. One imperfect but instructive analogy is civil disobedience. In that case, laws are indeed broken, but that does not establish that the laws should be broken. In fact, civil disobedience implies precisely that laws should not be broken, and protesters who engage in it present themselves promptly for imprisonment and legal sanction on exactly those grounds. They do so for demonstrative reasons. They are not saying that laws don't matter. They are saying that laws do matter, that they should be enforced, but that their conscience in this instance demands that they disobey them.

In extremis, a rough parallel can be drawn for a president faced with the kind of horrendous decision on which Krauthammer rests his entire case. What should a president do? The answer is simple: He may have to break the law. In the Krauthammer scenario, a president might well decide that, if the survival of the nation is at stake, he must make an exception. At the same time, he must subject himself--and so must those assigned to conduct the torture--to the consequences of an illegal act. Those guilty of torturing another human being must be punished--or pardoned ex-post-facto. If the torture is revealed to be useless, if the tortured man is shown to have been innocent or ignorant of the information he was tortured to reveal, then those responsible must face the full brunt of the law for, in Krauthammer's words, such a "terrible and monstrous thing." In Michael Walzer's formulation, if we are to have dirty hands, it is essential that we show them to be dirty.

What Krauthammer is proposing, however, is not this compromise, which allows us to retain our soul as a free republic while protecting us from catastrophe in an extremely rare case. He is proposing something very different: that our "dirty hands" be wiped legally clean before and after the fact. That is a Rubicon we should not cross, because it marks the boundary between a free country and an unfree one.

Krauthammer, moreover, misses a key lesson learned these past few years. What the hundreds of abuse and torture incidents have shown is that, once you permit torture for someone somewhere, it has a habit of spreading. Remember that torture was originally sanctioned in administration memos only for use against illegal combatants in rare cases. Within months of that decision, abuse and torture had become endemic throughout Iraq, a theater of war in which, even Bush officials agree, the Geneva Conventions apply. The extremely coercive interrogation tactics used at Guantánamo Bay "migrated" to Abu Ghraib. In fact, General Geoffrey Miller was sent to Abu Ghraib specifically to replicate Guantánamo's techniques. According to former Brigadier General Janis Karpinski, who had original responsibility for the prison, Miller ordered her to treat all detainees "like dogs." When Captain Ian Fishback, a West Point graduate and member of the 82nd Airborne, witnessed routine beatings and abuse of detainees at detention facilities in Iraq and Afghanistan, often for sport, he tried to stop it. It took him a year and a half to get any response from the military command, and he had to go to Senator John McCain to make his case.

In short, what was originally supposed to be safe, sanctioned, and rare became endemic, disorganized, and brutal. The lesson is that it is impossible to quarantine torture in a hermetic box; it will inevitably contaminate the military as a whole. Once you have declared that some enemies are subhuman, you have told every soldier that every potential detainee he comes across might be exactly that kind of prisoner--and that anything can therefore be done to him. That is what the disgrace at Abu Ghraib proved. And Abu Ghraib produced a tiny fraction of the number of abuse, torture, and murder cases that have been subsequently revealed. The only way to control torture is to ban it outright. Everywhere. Even then, in wartime, some "bad apples" will always commit abuse. But at least we will have done all we can to constrain it.
rauthammer's second case for torture is equally unpersuasive. For "slow-fuse" detainees--high-level prisoners like Khalid Sheikh Mohammed with potentially, if not immediately, useful intelligence--Krauthammer again takes the most extreme case and uses it to establish a general rule. He concedes that torture, according to almost every careful student and expert, yields highly unreliable information. Anyone can see that. If you are screaming for relief after a few seconds of waterboarding, you're likely to tell your captors anything, true or untrue, to stop the agony and terror. But Krauthammer then argues that, unless you can prove that torture never works, it should always be retained as an option. "It may indeed be true that torture is not a reliable tool," he argues. "But that is very different from saying that it is never useful." And if it cannot be deemed always useless, it must be permitted--even when an imminent threat is not in the picture.

The problem here is an obvious one. You have made the extreme exception the basis for a new rule. You have said that, if you cannot absolutely rule out torture as effective in every single case, it should be ruled in as an option for many. Moreover, if allowing torture even in the "ticking bomb" scenario makes the migration of torture throughout the military likely, this loophole blows the doors wide open. And how do we tell good intelligence from bad intelligence in such torture-infested interrogation? The short answer is: We cannot. By allowing torture for "slow-fuse" detainees, you sacrifice a vital principle for intelligence that is uniformly corrupted at best and useless at worst.

In fact, the use of torture and coercive interrogation by U.S. forces in this war may have contributed to a profound worsening of our actionable intelligence. The key to intelligence in Iraq and, indeed, in Muslim enclaves in the West, is gaining the support and trust of those who give terrorists cover but who are not terrorists themselves. We need human intelligence from Muslims and Arabs prepared to spy on and inform on their neighbors and friends and even family and tribe members. The only way they will do that is if they perceive the gains of America's intervention as greater than the costs, if they see clearly that cooperating with the West will lead to a better life and a freer world rather than more of the same.

What our practical endorsement of torture has done is to remove that clear boundary between the Islamists and the West and make the two equivalent in the Muslim mind. Saddam Hussein used Abu Ghraib to torture innocents; so did the Americans. Yes, what Saddam did was exponentially worse. But, in doing what we did, we blurred the critical, bright line between the Arab past and what we are proposing as the Arab future. We gave Al Qaeda an enormous propaganda coup, as we have done with Guantánamo and Bagram, the "Salt Pit" torture chambers in Afghanistan, and the secret torture sites in Eastern Europe. In World War II, American soldiers were often tortured by the Japanese when captured. But FDR refused to reciprocate. Why? Because he knew that the goal of the war was not just Japan's defeat but Japan's transformation into a democracy. He knew that, if the beacon of democracy--the United States of America--had succumbed to the hallmark of totalitarianism, then the chance for democratization would be deeply compromised in the wake of victory.

No one should ever underestimate the profound impact that the conduct of American troops in World War II had on the citizens of the eventually defeated Axis powers. Germans saw the difference between being liberated by the Anglo-Americans and being liberated by the Red Army. If you saw an American or British uniform, you were safe. If you didn't, the terror would continue in different ways. Ask any German or Japanese of the generation that built democracy in those countries, and they will remind you of American values--not trumpeted by presidents in front of handpicked audiences, but demonstrated by the conduct of the U.S. military during occupation. I grew up in Great Britain, a country with similar memories. In the dark days of the cold war, I was taught that America, for all its faults, was still America. And that America did not, and constitutively could not, torture anyone.

If American conduct was important in Japan and Germany, how much more important is it in Iraq and Afghanistan. The entire point of the war on terrorism, according to the president, is to advance freedom and democracy in the Arab world. In Iraq, we had a chance not just to tell but to show the Iraqi people how a democracy acts. And, tragically, in one critical respect, we failed. That failure undoubtedly contributed to the increased legitimacy of the insurgency and illegitimacy of the occupation, and it made collaboration between informed Sunnis and U.S. forces far less likely. What minuscule intelligence we might have plausibly gained from torturing and abusing detainees is vastly outweighed by the intelligence we have forfeited by alienating many otherwise sympathetic Iraqis and Afghans, by deepening the divide between the democracies, and by sullying the West's reputation in the Middle East. Ask yourself: Why does Al Qaeda tell its detainees to claim torture regardless of what happens to them in U.S. custody? Because Al Qaeda knows that one of America's greatest weapons in this war is its reputation as a repository of freedom and decency. Our policy of permissible torture has handed Al Qaeda this weapon--to use against us. It is not just a moral tragedy. It is a pragmatic disaster. Why compound these crimes and errors by subsequently legalizing them, as Krauthammer (explicitly) and the president (implicitly) are proposing?

Will a ban on all "cruel, inhuman, and degrading treatment" render interrogations useless? By no means. There are many techniques for gaining intelligence from detainees other than using their bodies against their souls. You can start with the 17 that appear in the Army Field Manual, tested by decades of armed conflict only to be discarded by this administration with barely the blink of an eye. Isolation, psychological disorientation, intense questioning, and any number of other creative techniques are possible. Some of the most productive may well be those in which interrogators are so versed in Islamic theology and Islamist subcultures that they win the confidence of prisoners and pry information out of them--something the United States, with its dearth of Arabic speakers, is unfortunately ill-equipped to do.

Enemy combatants need not be accorded every privilege granted legitimate prisoners of war; but they must be treated as human beings. This means that, in addition to physical torture, wanton abuse of their religious faith is out of bounds. No human freedom is meaningful without religious freedom. The fact that Koran abuse has been documented at Guantánamo; that one prisoner at Abu Ghraib was forced to eat pork and drink liquor; that fake menstrual blood was used to disorient a strict Muslim prisoner at Guantánamo--these make winning the hearts and minds of moderate Muslims far harder. Such tactics have resulted in hunger strikes at Guantánamo--perhaps the ultimate sign that the coercive and abusive attempts to gain the cooperation of detainees has completely failed to achieve the desired results.

The war on terrorism is, after all, a religious war in many senses. It is a war to defend the separation of church and state as critical to the existence of freedom, including religious freedom. It is a war to persuade the silent majority of Muslims that the West offers a better way--more decency, freedom, and humanity than the autocracies they live under and the totalitarian theocracies waiting in the wings. By endorsing torture--on anyone, anywhere, for any reason--we help obliterate the very values we are trying to promote. You can see this contradiction in Krauthammer's own words: We are "morally compelled" to commit "a terrible and monstrous thing." We are obliged to destroy the village in order to save it. We have to extinguish the most basic principle that defines America in order to save America.

No, we don't. In order to retain fundamental American values, we have to banish from the United States the totalitarian impulse that is integral to every act of torture. We have to ensure that the virus of tyranny is never given an opening to infect the Constitution and replicate into something that corrupts as deeply as it wounds. We should mark the words of Ian Fishback, one of the heroes of this war: "Will we confront danger and adversity in order to preserve our ideals, or will our courage and commitment to individual rights wither at the prospect of sacrifice? My response is simple. If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession. I would rather die fighting than give up even the smallest part of the idea that is 'America.'" If we legalize torture, even under constrained conditions, we will have given up a large part of the idea that is America. We will have lost the war before we have given ourselves the chance to win it.

(Andrew Sullivan is a senior editor at TNR. )

NYT on ICRC detainee access

New York Times, Saturday, 10 December 2005, here, on the Bush administration continuing to deny access by the International Committee of the Red Cross to detainees in secret detention centers, on the ground that they are not legitimate combatants, but terrorists, and hence not entitled to the protections for POWs under the Geneva Conventions, including ICRC visits.

My view is that although the Bush administration's position is legally correct - they are not entitled to POW protections, including ICRC visits - as a matter of policy, not law, the Bush administration should allow ICRC access.

The article, alas, as with most NYT articles on these subjects, reads as though it were thoroughly briefed by the ICRC itself and not by too many others. It is deeply entrenched in the ICRC's view of the world. For example, the article has a graf saying:

"The Red Cross has recognized that some of those held by the United States are not prisoners of war, and do not have the full protections of the Geneva Conventions. But it has argued that no prisoners, not even those alleged to be terrorists, should fall into what it calls a 'black hole' outside any protection under international humanitarian law."

Hmm. This is a bit too much straight from the ICRC. The ICRC's position that those who are not POWs do not have the "full protections of the Geneva Conventions" is literally true but buys tacitly into a much more ambitious ICRC legal position (signalled in the rest of the graf) that is not, however, the text of the Geneva Conventions. "Full protections"? - yes, it is true that terrorists who do not satisfy the requirements to be POWs within the meaning of Geneva III have some small protection of the Convention - viz., a procedural right to a determination that they are not entitled to the protections of the Geneva Conventions.

But that's not the ICRC view of things. It holds that if they are not entitled to POW protection, then they are entitled to what is arguably even better protection as civilians under Geneva IV. That's what the ICRC means when it says that no one should be left without a status under the Geneva Conventions - you are, in its view, either a POW or a civilian. Its view is not that if you are not a POW under Geneva III, and not a civilian under Geneva IV, then as an unprivileged combatant by reason of terrorism you are still entitled to certain minimal protections, such as the legal prohibition against torture and some minimum level of humane treatment. If that were the ICRC position, then it would be on the same procedural page as the Bush administration even if the two had different substantive views on what constituted, for example, actual practices of torture.

But the ICRC's position is much more radical than that. It views non-POW unprivileged belligerents as civilians entitled to all the protections that are supposed to be reserved to people who take no active part in hostilities. This perverse result, holding out for terrorists the protections intended for people who take no active part in hostilities - that is, genuine civilians - simply has the effect of undermining civilian protection because it mixes the legal status of women and children hiding in the basement with terrorists hiding behind their deliberate failure to abide by the regulations of Geneva Convention III on POWs. If you reward bad behavior, you will get more of it. Did the ICRC or various interviewees raise that thought with the NYT writer, Steven R. Weisman? No? Yes? The considerations against the ICRC view, or reasons to consider just how radical a view it is, weren't worth mentioning?

There is indeed a legal status for terrorists who are found to lie outside the boundaries of legitimate POWs - illegal combatants or unprivileged belligerent, a legal status under customary law older than the Geneva Conventions themselves and untouched by them. If you are a terrorist who has undertaken hostilities so as to preclude POW treatment, you don't metamorphose into a civilian as though you had never taken part in hostilities using terrorist means, you are what you are - an unprivileged belligerent. The people held by the US government have a legal status - unprivileged belligerent - it's just that the ICRC doesn't like that status and, mutatis mutandi, neither does the New York Times.

The Bush administration ought to grant access. On the other hand, it would be nice, under those circumstances, if the ICRC actually respected its own mandate to keep confidential its findings and discussions with the US government - something it has had considerable trouble doing in the last couple of years. It is scarcely surprising that the ICRC told the NYT writer, Steven Weisman, that it had "been careful to mute its criticism in order to keep the negotiations more productive" - what else would it have said? It might have been interesting for the record, however, to get the Bush administration's private response to that exceedingly dubious claim. For the Bush administration to deny access now, after a history of ICRC media leaks, is perfectly understandable, although not a good policy decision. The ICRC, for its part, does not seem to have learned that there were reasons why it adopted the confidentiality-in-exchange-for-access policy so long, long ago - among them, that if you violated confidentiality, sooner or later you would not get access. The ICRC can be the ICRC, or it can be HRW or MSF, but it can't be both.

Article excerpts:

***
December 10, 2005, Saturday
New York Times

U.S. Rebuffs Red Cross Request for Access to Detainees Held in Secret

By STEVEN R. WEISMAN

WASHINGTON, Dec. 9 - The United States said Friday that it would continue to deny the International Committee of the Red Cross access to "a very small, limited number" of prisoners who are held in secret around the world, saying they are terrorists being kept incommunicado for reasons of national security and are not guaranteed any rights under the Geneva Conventions.

Adam Ereli, the State Department's deputy spokesman, said the United States would not alter its position after the president of the International Red Cross said in Geneva that his organization was holding discussions to gain access to all detainees, including those held in secret locations.

Mr. Ereli said that the Geneva Conventions requiring humane treatment of prisoners of war did not apply to certain terrorism suspects seized as "unlawful enemy combatants," but that, in any case, the United States treats most of them as prisoners of war.

"We're going the extra mile here," Mr. Ereli said, by allowing the Red Cross access to Al Qaeda suspects and others held at Guantánamo Bay, Cuba, and in Afghanistan. The Red Cross also has access to prisoners held in Iraq.

Aside from those detainees, about two or three dozen terrorism suspects, including a handful of top Al Qaeda operatives, are said by current and former intelligence officials to be held in secret locations.

On Thursday in Geneva, John Bellinger, the senior legal adviser of the State Department, acknowledged that the International Red Cross does not have access to all detainees held by American forces but declined to discuss the existence of secret detention centers.

The Red Cross has recognized that some of those held by the United States are not prisoners of war, and do not have the full protection of the Geneva Conventions. But it has argued that no prisoners, not even those alleged to be terrorists, should fall into what it calls a "black hole" outside any protection under international humanitarian law. A central purpose of the Red Cross is to visit prisoners and protect their human rights.

On Friday, Jakob Kellenberger, the president of the International Red Cross, said the situation of those held secretly remained "a major concern" that would continue to be the focus of discussions with the United States. "We continue to be in an intense dialogue with them with the aim of getting access to all people detained in the framework of the so-called war on terror," he said.

Mr. Ereli of the State Department said that "cases that pose unique threats to our security" would be denied visits by the Red Cross, even on a confidential basis.

In a related development, the Defense Department announced Friday that Anne-Marie Lizin, a representative of the Organization for Security and Cooperation in Europe, a 55-nation group, would visit American detention facilities at Guantánamo and may question the commanding officers and other staff members.

"The department strives for transparency in our operations to the extent possible, in light of security and operational requirements and the need to ensure the safety of our forces," a department statement said.

Mr. Ereli said "there's no legal requirement" to provide Red Cross access to Guantánamo. "Nevertheless, and even though we're not required to do so, we do provide access to the vast majority of detainees under our control, and we do accord Geneva protections to them."
The Red Cross has been seeking greater access to detainees for at least two years but has been careful to mute its criticism in order to keep the negotiations more productive, according to committee officials.

In Europe over the last week, Secretary of State Condoleezza Rice emphasized that it is American policy not to subject detainees to "cruel, inhumane or degrading" punishment in any location, no matter whether they are held by military or intelligence authorities.

Ms. Rice also said on her European trip that the United States would not hand any prisoners over to other countries in the process known as rendition without obtaining assurances that they would not be tortured.

Alice Schwarzer on gender and the French riots

Alice Schwarzer, a leading German feminist, writes on gender and the French riots, and the sexism and violence against women in the Euro Muslim underclass, here. (Thanks instapundit.)

There is a not inconsiderable academic subspeciality of the multicultural left dedicated to showing that gender and race/religion (at least if that religion is Islam and not, say, Catholicism) are not in conflict. I have colleagues who dedicate themselves to trying to square that particular circle; it requires heroic reinterpretations of the social facts, so far as I can tell.

Schwarzer seems to be trying to say (albeit saying it while still trashing Sarkozy in order to show she's still a good leftist) that maybe you can't have it both ways, at least not if the religion and culture at issue, however one attempts to gloss it, really, really do believe in the submission and subservience of women and the virtue of honor killings. It would be nice if the world turned out according to the canon of political correctness, but it might just be that sometimes you have to choose between the brutalized women and apologizing for their men, their culture, and their religious beliefs. God knows I'm not a feminist, but what's it going to be?

Excerpts:

***
They used to burn dustbins and cars – now they burn girls." These were the words of Kahina Benziane after her sister Sohane was raped, tortured and burned alive by schoolmates on October 4, 2002 in the Parisian suburb of Vitry.

Unlike her sister, who moved away and studied sociology, Sohane stayed in the neighbourhood. But she dared to live like her sister, which meant wearing makeup, going out, having a boyfriend. And she paid for this lifestyle with her life, since it meant she was not one of the "respectable girls" but one of the "putes", the whores.

Today, fils de pute, son of a whore, is the term of abuse that flies with the stones and petrol bombs hurled at police officers by young people. Or to be more precise, by boys. Girls do not figure in this "youth uprising". Stones were thrown in Paris in 1968, too. But the barricades were occupied by men and women, even if the leaders were all men. The revolt targeted authoritarian structures, but not the state as such. It was luxury shops that burned, not schools. And the war cry against the "pigs" was "CRS SS!" An inappropriate comparison, but at least a political one. Today’s equivalent is purely sexist: son of a bitch.

It is a fact: Of the six million first, second and now third-generation immigrants in France, the majority come from the Muslim states of the Maghreb, from France's former colonies Algeria and Morocco. This history does not make the present any simpler. What is striking is that the third generation – and this applies equally in Germany – are often less well integrated than their grandparents. And forty percent of these young people between 16 and 25 are unemployed. Or to be more precise, 25 percent of young men and 50 percent of young women. In social terms, then, the women have twice as much reason to protest.

Except that Muslim women do not shout in the streets. They whisper behind drawn curtains. And when they do dare to demonstrate in public, their protest is aimed not against the state, but against their own husbands and brothers. Like after the death of Sohane, when a movement was founded with the name "Ni putes ni soumises" (neither whores nor submissive - see our feature with the same name) whose demonstrations caused a considerable stir in France. On March 8, 2003, hundreds of young women from the suburbs marched through Paris and declared: "We are being suffocated by the machismo of the men in our neighbourhoods. In the name of 'tradition' they are denying us the most elementary human rights. We will not tolerate it any longer!"

Kahina and her sisters were received by Jean-Louis Debre, the president of France's National Assembly, and ex-minister and concentration camp survivor Simone Veil, a moral authority in France. And in summer of 2003, the columns of the neo-classical parliament building bore fourteen larger-than-life portraits of Kahina, Samira, Aisha and all the others. On their heads, these modern Mariannes wore the Jacobin cap, the proud symbol of the republic.

It is all the more surprising that alongside the justified focus in the French and international press on the issue of racism, the sexism or machismo of these riots has barely been touched on. In fact, for a long time now, twenty years to be precise, the suburbs have been seeing an inexorable rise in male violence. In a recent survey, 300 of the 630 problematic residential areas under observation showed typical signs of the emergence of "parallel societies" – "isolation within communities" coupled with religious and sexist fanaticism, phenomena known to go hand in hand.

The girls and women in these areas have long been living in fear. As well as being victims of violence within their own families more frequently than the average French woman, they are also at greater risk on the street. The Islamist-influenced boys and men divide women into two categories: saints and whores. The saints stay at home, the whores go out into the world. And they are made to pay. The price ranges from brutal street robberies, that affect women with striking frequency, through to what is called the 'rotonde': the form of gang rape to which Kahina’s sister Sohane was also subjected.

The current unrest is said to be the result of a two-class society that has failed to integrate the immigrants and their children. This is true. But when it gets dark and the rioting begins, there is not a single woman left on the streets. For on fiery nights like these, the "whores" are in just as much danger as the "sons of whores".

What can happen when women raise their voices is shown by the example of Senia Boucherrougui and Cherifa. Last year, the very pregnant Senia was the victim of a robbery in suburban Paris. Together with her friend Cherifa, she then founded the "Union Against Violence in Saint-Denis" and dared to organize a demonstration in her neighbourhood – against the violence of the state and against the violence of the participants' own husbands and brothers. As a result, a pamphlet appeared comparing the two women with Jacques Doriot, the mayor of Saint-Denis in the 1930s who converted from communism to fascism. "They broke a taboo", commented the Nouvel Observateur newspaper dryly. The taboo of political correctness and of "solidarity" with their "own" people at all costs.

Before the riots broke out, cars were mostly being set alight in Paris' formerly communist "Red Belt", which is increasingly becoming Islamist green. Now cars are burning across the country, and so are schools. The reasons are unemployment, insufficient integration – and constant agitation by Islamists since the mid-1980s. This time, they do not appear to be on the front line with the marauding gangs of youths, but they were the trailblazers – and they will reap the benefits.

In Germany too, sociologists warn of the danger of young men in mainly Muslim neighbourhoods coming adrift. From representative long-term studies by the Hanover-based criminologist Christian Pfeiffer, we know that in this country, half of all crimes by minors are committed by just six percent of the delinquents. This hard core includes one in ten Turkish youths, but only one in 33 German youths. Fittingly, 25 percent of Turkish boys condone violence (compared with four percent of German boys) – but only five percent of Turkish girls.

Levels of violence are three times higher in Turkish families than in German families, the culprits are men, their victims women and children. But the girls identify with their victim mothers, the boys with their aggressor fathers (even if they themselves are among his victims). And as long as these facts are silenced in the name of some naïve claim of racism, we will not get to the root of the problem.

For how is a boy to learn respect for those around him or for the representatives of the state when he learns from an early age to despise those closest to him – his own mother, sister, girlfriend? Worse still, these boys are convinced that only a violent man is a real man. Violence is the core of male dominance in the ghettos. Violence is cool. Violence is the key attribute of a "manly" identity – most keenly required in times when manliness is shaken and uncertain.

The siren's song of violence is being sung by many voices from Paris to Berlin: by traditional patriarchs from cultures entirely unaffected by the Enlightenment or feminism; by criminals who exploit the hopelessness of these boys; and by the Islamists operating in the heart of Europe's major cities. To these lost young men, they promise a new, proud identity, including seventy virgins in heaven – at the price of subjugating their own womenfolk and combating the unbelievers.

In recent years, it really seemed as if France had recognized this problem. Interior Minister Nicolas Sarkozy, himself born to immigrants (as the son of a Hungarian aristocrat father and a Jewish Greek mother), pursued a proactive integration policy aimed at breaking the secret power of the Islamists and at drawing Muslims out of parallel societies. As a man with an iron hand and a rough way with words, the popular "Sarko" has deservedly fallen into discredit. But the question remains as to whether the wave of disapproval unleashed on the ambitious would-be president by the spokespersons of the suburbs is not also aimed at the politician who has to date been the most determined and most effective opponent of the Islamists in France.The situation in Germany is not quite as drastic as in France.

But in Germany too, sympathy with the fundamentalists and jihadists is increasing inexorably, especially among young men. Soon, the new government will have to act where the old one failed to. In an interview, the designated interior minister Wolfgang Schäuble has called neglecting the "young people" from Turkey and the former Soviet Union "our biggest mistake", adding that this lost generation must be given access to language classes, education and work as an urgent priority. This is true. But we must also no longer turn a blind eye to the double two-class system: that separating Germans and immigrants on the one hand and, on the other, that separating the men and women within the immigrant communities.

If we really want to get to grips with the problem of burning cars, then we must also tackle the problem of burning girls (read: honour killings). If we want to break the rule of the godfathers within the mafia-like structures, then we must also call into question the limitless authority of the patriarchs within families (read: different cultures, different rules). And at least as urgent as language classes are some classes in democracy – with reference to Article 3 Paragraph 2 of Germany’s constitution, the Basic Law: "Woman and men shall have equal rights."

*The article originally appeared in German in the Frankfurter Allgemeine Zeitung on November 17, 2005.

Alice Schwarzer, born in 1942, is Germany's best-known feminist. She studied sociology and psychology in Paris, and became active in the women's movement at first in France and then in Germany. In 1971 she started the "Ich habe abgetrieben" (I've had an abortion) action (published on June 6, 1971 in Stern magazine), which initiated a widespread campaign against paragraph 218 of the German Basic Law, and ushered in a new era in the German women's movement. In 1977 she founded Emma magazine, where she is still editor in chief.

Translation: Nicholas Grindell.

Alvaro Vargas Llosa on Bolivia

The United States is not paying near enough attention to the worsening ideological conditions in Latin America, even after the disaster of the Bush visit to meetings in Argentina. Alvaro Vargas Llosa, who has emerged as perhaps the most astute observer of the Latin American political and economic situation, describes what is occurring in Bolivia. Here, thanks to RCP. Excerpts:

***
December 6, 2005

Bolivia's Nightmare

By Alvaro Vargas Llosa

The forces of Latin American populism are arrayed behind Evo Morales, the former coca grower who toppled two Presidents of Bolivia through violent street action and promises a nationalist revolution if he wins the elections on December 18th. Although he is ahead in the polls, a parliamentary vote will decide who the next President is if no candidate gets more than 50 percent of the ballots. But even if Morales does not, the next President, possibly center-right candidate Jorge Quiroga, will be at the mercy of Morales' movement.

Unfortunately, Morales is not a character in a Romantic novel by Chateubriand, the 19th-century French author who assuaged Europe's bad conscience by idolizing indigenous Latin America. This is a real-life tragedy that will have lasting consequences for Bolivia.

Evo Morales and his party, MAS, have led a successful crusade against foreign investment in Bolivia the last couple of years. Foreign investment has dropped to one tenth of what it was in 2003. By forcing the cancellation of foreign contracts and the introduction of confiscatory new taxes, Morales has prevented Bolivia from developing natural gas reserves amounting to 52 trillion cubic feet.

Morales represents a particularly toxic mix of nationalism and populism that has re-emerged in South America in the last few years. His movement has potential "spill-over" effects in the countries that border Bolivia, including Peru, where Ollanta Humala, another nationalist populist, is rising fast in the polls.

One only needs to look at Morales' own life story to realize his own deprivation, like that of so many other Aymara Indians, was the result of nationalism, populism, and socialism, and not, as he maintains, of globalization.

Why did he become a coca grower in the 1980s? He was born in Isallavi, in the tin-mining region of Oruro, at a time when tin mines lay in ruins. The reason for their decline was the 1952 revolution, which "nationalized" them and created a bureaucratic mining entity known by its acronym COMIBOL. The revolution raised miners' salaries by 50 percent but failed to keep up investments, so production collapsed. Eventually, thousands of families, among them the Morales family, had to move elsewhere.

Now Evo Morales wants to do to the natural gas fields of Tarija what the 1952 revolution did to the tin mines of Oruro and other parts of Bolivia.

Where did Evo Morales go to escape the consequences of those policies as a young man? He went to the Yungas, near La Paz, to try agriculture. What did he find? In 1953, the revolutionary government had undertaken land reform, expropriating those estates it deemed unproductive and handing them to some peasant associations. Restrictions on property rights were so abundant and legal frameworks so dodgy that a few years later Bolivia had to import food because its unproductive minifundia were useless. Unlike Taiwan's agrarian reform, which created a property-owning mass of peasants, Bolivia's revolution undercapitalized the land. So when Evo Morales arrived in Yungas, he realized agriculture was in no better shape than mining.

Now Morales is proposing to do to his country's farms precisely what was done to the land in 1953. He wants to expropriate "those that are unproductive" and hand them over to peasant cooperatives under the same restrictions that made economies of scale impossible five decades ago.

Where did young Evo go after Yungas? To the rainforests of Chapare, which offered the only opportunity available to him. That opportunity was coca -- coca not exactly geared towards the production of shampoo, toothpaste, and medicines. In Chapare, the new coca grower rose through the ranks of unionism, until he emerged in 2000 as a voice against foreign capital and the insufficient free-market reforms of the 1990s, which he blamed for social ills that were the result of five decades of nationalism and socialism's ill-fated attempt to correct the oligarchic legacy of the colonial era.

Morales accuses U.S. capitalism of impoverishing Bolivia. But the U.S. should actually be faulted for funding populism and socialism! Between the start of the 1952 revolution and Morales' internal migration in the 1980s, nine tenths of the money Bolivia received from abroad were grants and soft credits from the U.S. By 1957, the United States was subsidizing 30 percent of the government's budget. With this encouragement, more nationalizations took place in the late 60s under general Ovando and in the early 70s under general Juan José Torres. Needless to say, the protectionist policies in vogue throughout the region, including import substitution, were dominant under most Bolivian governments.

It is hardly surprising that in those circumstances thousands of families should have turned to coca. Then, caught up in the anti-drug effort, they saw their livelihood almost disappear at the end of the 1990s when coca leaf was reduced from close to 100,000 acres to 7,000 acres through eradication efforts (another 24,000 acres are legally grown elsewhere). Morales emerged as a national hero.

In the last few years, Morales, not the most radical among the radicals, has held his country by the throat, squeezing it every time it gulped for air, as when it tried to export gas to the U.S. through Chilean ports. Inevitably, the reaction to this populist leader in the more modern parts of the country has fueled the separatist cause of south-eastern regions like Santa Cruz. The result is a powder keg of a country that Bolivia has become.

Good luck on December 18th!

(Alvaro Vargas Llosa is a Senior Fellow and director of The Center on Global Prosperity at the Independent Institute. He is the author of Liberty for Latin America.)