Victor Davis Hanson on immigration and assimilation - France and the US

Victor Davis Hanson writing on immigration and assimilation, comparing France's Muslims and the US's Mexicans. In the Claremont Review of Books, here. Volume VI, No. 2, Spring 2006. See also the Claremont Institute's series of essays on citizenship, here, in its "Becoming Americans" series.

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France's Immigrant Problem - and Ours

By Victor Davis Hanson

Posted March 24, 2006

This essay appeared in the Spring 2006 issue of the Claremont Review of Books.

The three weeks of Muslim rage across France during autumn 2005 brought Schadenfreude to many Americans. They saw a thin scab of French hypocrisy scraped off—revealing a deep wound of invidious religious and racial separatism festering in Muslim ghettoes. As during the August 2003 heat wave that killed nearly 15,000 French elderly in stifling apartments while their progeny enjoyed their state-subsidized vacation at the beach or mountains, French talk of solidarity and moral superiority proved spectacularly at odds with the facts.

So for much of last October and November, Americans congratulated themselves that French-style rioting could, of course, never happen in the United States. After all, their economy is moribund. Ours is growing at well over 3% per year. French unemployment hovers near 10%; America's is half that. Fifty-seven million jobs were created in the U.S. during the past 30 years; only 4 million in all of Europe. Our minority youth, as a result, are much more likely to be working than idling in the streets. And sure enough, in France, about 25% of youths between 15 and 24, regardless of race or religion, are out of work.

After the unrest in our cities during the 1960s and 1970s, Americans increasingly sought through assimilation, intermarriage, and integration to fulfill the ideal of an interracial society. As emblems of our success, Americans can point to cabinet members like Colin Powell, Condoleezza Rice, or Alberto Gonzalez. By contrast, it is almost unimaginable that anyone of Arab-French ancestry would head a major French ministry. We long ago jettisoned the notion that proper citizens should necessarily look like Europeans. The French apparently still have not. Second- or third-generation spokespersons of the American Hispanic community, for instance, are often successful, affluent, and integrated. By contrast, imams who barely speak French after decades of living there, and who from their 1,500 mosques decry the decadence of French culture, were often the only intermediaries between the French government and youthful rioters.

The accepted view is not just that the American melting pot differs from European separatism, but that the largest bloc of our immigrant residents is itself quite different—Christian Mexicans who trek across a common 2,000-mile unfenced border, eagerly looking for work. France's Muslim immigrants bring with them age-old, clash-of-civilizations baggage dating from Poitiers in the 8th century to the 20th-century French colonial war in Algeria. In contrast, Mexico was colonized by European Christians—and we have had more or less stable relations with the Mexican government for over a century. Moreover, even illegal-alien drug smugglers and gangbangers are not terrorists; we do not fret about their potential sympathy for radical Islam. And the rioters outside of Paris were almost all males, apparently embracing strict gender separation—antithetical to French culture, and utterly foreign to Mexican immigrant men and women, who cross our border indistinguishably.

All's Not Well

Yet such contrasts are not the entire story. For despite the many differences, America is not immune from all the destructive social and cultural forces now tearing at the seams of French society. Hundreds of thousands of first-generation illegal aliens currently live in Los Angeles and rural California in what are, in effect, segregated communities. In many cases, they are no more integrated—and no less alienated—than those in the French suburbs. Instead, these immigrants comprise an entire underclass without sufficient language skills, education, or familiarity with their host country to integrate successfully into society, much less to pass on capital and expertise to ensure that their children are not condemned to perpetual menial labor.
Spanish has become the de facto language for many communities in the southwest U.S. in the same way that Arabic dominates the French suburbs. Mexico City newspapers air the same sort of historical gripes and peddle the same kind of myths as Arab fundamentalists, who drug their poor, uneducated expatriates with stories of al-Andalus and a restored caliphate that will spread once again from southern Europe to the Euphrates.

In some respects, our situation is worse than France's. The United States has some 8-12 million illegal aliens—a population of unlawful residents larger than that of any other country in the Western world—not France's 4-7 million mostly Arab-French citizens. Ten thousand Muslim youths rioted outside Paris; but there are nearly 15,000 illegal-alien felons from Mexico in the California penal system alone, incarcerated at a cost of almost a half billion dollars a year. Portions of the Arizona and California borders have devolved into a Wild West—a no-man's-land of drug smuggling, shoot-outs, environmental desecration, and random death. Mexico responds by publishing comic books with safety tips about crossing the border, so that its departing citizens can more safely violate U.S. immigration laws. Meanwhile, Hispanic groups in America complain that increased border surveillance near San Diego has cruelly diverted human traffic into the desert.

Granted, Americans have proved far more adept at assimilating the Other than have the French; we have not suffered widespread racial or ethnic violence since the 1992 Los Angeles riots. And we do not have a religious or terrorist overtone to our internal tensions. But there are still enough similarities with the French experience to give us pause.

Immigration and Its Discontents

In the first place, poor Mexicans come to the U.S. for largely the same reasons that Arabs settle in France (and both were initially welcomed by their hosts). Mexicans and Arabs alike flee corrupt Third World societies and grinding poverty. At least in the beginning, they trust that unskilled and often menial employment in the West—under the aegis of a far more liberal welfare state and the rule of law—are better than anything back home. Perhaps at first such jobs are considered an improvement. But by the second generation, the paradox becomes apparent: employers hire migrants and their children expressly on the premise that they will work for lower wages than the natives would accept. If employers were to pay competitive compensation and provide full benefits, there would be little need for immigrants, since in many counties where illegal aliens reside there are enough unemployed non-immigrants to fill such jobs. In America as in France, the society eventually must pay the difference through greater state entitlements to subsidize an (often persistent) underclass.

So the reasons that Mexicans' and Arabs' rates of poverty, alcoholism, incarceration, reliance on entitlements, and high school drop-out are far higher than those of the host population are similar: in a globalized economy, manual labor in the West is now rarely unionized, respected, well-paying, or lasting. Nor are such jobs often looked upon, as they once were, as a sort of entry-level apprenticeship in which character and discipline are inculcated, in which young people gain education and experience before moving up the employment ladder.

Much of the work offered to immigrants remains in the service sector—cooking food, making beds, cutting lawns, cleaning toilets—jobs that become galling for the perennially second-class citizen in constant proximity to his more affluent host, whom he must serve while never quite receiving the compensation or respect he believes is warranted. Such jobs tend to come and go without breeding loyalty on either side. This is why the French-Arab unemployment rate (nearly 20%) is twice the national average, and why nearly one-third of California's Mexican immigrant households are on public assistance. In each case, foreigners are welcomed in due to a perceived shortage of labor, but their families eventually end up either unemployed or on public assistance at much higher rates than non-immigrant households.

Many in the second generation lap up their parents' bitterness, but without the consolation that things are still better in the West than back home. This is one reason that nearly four out of every ten Hispanic high school students are not graduating from high school in four years. Of those that do, only 22.9% meet the minimum entry requirements of the California State University system, the less competitive of the state's two systems. Of Latinos of all statuses in California, less than 10% of those over 25 have bachelor's degrees—a legacy of their parents who in many cases came to the state without English, without education, without lawful entry, and without well-paying, secure jobs. In some sense, the anger of the tattooed gang member who ends up in San Quentin is not that different from the rage of the car-burning Muslim in the Paris suburbs. Both are resentful; have sufficient entitlement aid to indulge the appetites but insufficient skills to earn a good living; and are eager to blame society for their frustrations.
In short, the absence of fluency in the host language, little or no education beyond high school, and retention of much of their home country's culture all conspire to keep millions of unassimilated immigrants—in both France and the U.S.—stuck in ethnic enclaves and static jobs that usually don't pay enough to ensure a middle-class existence for larger-than-average families. This is true even without the specter of prevailing racism and undeniable discrimination. And by middle age their physically demanding jobs often leave such workers injured, ill, or disabled.

The Politics of Resentment

The problem is not that it is impossible for thousands of maids, street sweepers, fruit pickers, and gardeners to move up to become electricians, small contractors, and government officials, in either France or the U.S. But the pool of newly arrived young immigrants who cannot advance quickly is so large—and growing—that our failures in upward mobility overshadow our successes. In postmodern societies, the number of immigrants is a force multiplier, inasmuch as near-instant parity for all is taken to be the only benchmark of success. Therefore the collective failure of millions is far more relevant politically than the individual success of thousands.
If Islam bolsters resistance to assimilation on the part of French immigrants from the Maghreb, illegality alienates Hispanic immigrants whose cars, taxes, and official documentation exist in a netherworld off the books. Hence many Hispanic youths—like the Arab population of France, but unlike the Cuban, Korean, or Sikh populations in the U.S.—embrace varying degrees of ethnic chauvinism to decry de facto inequality.

Consider, for example, the radical agenda of some of the most vocal ethnic separatists. The slogans of MEChA (El Movimiento Estudiantil Chicano de Aztlan)—"Everything for the race. Nothing for those outside the race." (Por La Raza todo. Fuera de La Raza nada.)—do not differ much from Islamic nationalists' sentiments in Europe.

Those embarrassed by such racist mottos argue that ethnic triumphalists in the U.S. are ossified relics of the 1960s, and have tempered their rhetoric in the 21st century. Yet ponder the following essay from Ernesto Cienfuegos on the website La Voz de Aztlan ("The Voice of Aztlan") in the wake of the French rioting:

Today, here in Los Angeles, we are already seeing ominous signs of an impending social explosion that will make the French rebellion by Muslim and immigrant youths seem "tame" by comparison. All the ingredients are present including a hostile and racist police as in France. In fact, we came close to having major riots on three separate occasions just this year alone…. There is a strange feeling here in Los Angeles that something sinister is about to happen but no one knows when. All it will take is for a "bird-brain cop" to do something stupid and all hell will break loose. If another major rebellion breaks out here in L.A. it could rapidly spread throughout the USA as it has spread in France…. The social and economic conditions that exist in France that adversely affect its immigrant and Muslim populations also exist here in the USA…. The rebellion that is occurring in France can and will most probably happen here.

The largest Hispanic grievance association is still called the National Council of La Raza ("the Race"), a well-meaning organization that nevertheless appeals to racial solidarity and purity and therefore separatism—a clear repudiation of the idea of American multiracialism. Its nomenclature would hardly be tolerated were it not for the enormous size of the growing Hispanic community.

In a 1997 speech before this activist group, former Mexican President Ernesto Zedillo bragged that "the Mexican nation extends beyond the territory enclosed by its borders" and that Mexican migrants were "an important—a very important—part of this." A Zogby poll of Mexican citizens conducted in late May 2002 showed that 58% believed that "the territory of the United States' southwest rightfully belongs to Mexico." The national newspaper of Mexico, Excelsior, agreed: "The American Southwest seems to be slowly returning to the jurisdiction of Mexico without firing a single shot." No wonder then that 57% of Mexicans in that same Zogby poll believed that they should have the right to cross the border freely and without U.S. permission.

In a recent Pew poll, 40% of all Mexicans expressed a desire to immigrate to the U.S. That presents an Orwellian dilemma: almost half the population of our southern neighbor wants to leave home and enter our country, while claiming that this promised land ought to be part of the very system that has made their own country uninhabitable. A parallel phenomenon exists in Europe: radical Islamists who dream of Eurabia fail to realize that, without assimilation and adoption of their hosts' culture, they would only recreate the same discontents that prompted their departure from home in the first place.

Even if we accept that some Mexican-American leaders occasionally indulge in rhetorical excesses, their appeals to notions of race and reconquista still echo in mainstream politics. Consider the remarks of Richard Alatorre, a former member of the Los Angeles City Council: "They're afraid we're going to take over the governmental institutions and other institutions. They're right. We will take them over." Mario Obledo, former California State Secretary of Health, Education, and Welfare under Jerry Brown—and awarded the Presidential Medal of Freedom by Bill Clinton—once infamously remarked, "California is going to be a Hispanic state. Anyone who doesn't like it should leave." Speaking at a Latino gathering in 1995, Art Torres, then Chairman of the California Democratic Party, decried the passage of Proposition 187 denying entitlement benefits to those here illegally: "Power is not given to you. You have to take it. Remember, 187 is the last gasp of white America in California."

Such pronouncements tend to be encouraged by contemporary group-rights liberalism. Both the French and American governments embrace multiculturalism, which exacerbates the problem and empowers racial chauvinists. Multiculturalism teaches that there is nothing really choiceworthy about the economic, social, and political core values of Western culture, given its historic sins of racism, class exploitation, and sexism. At its worst, multiculturalism can end up, as in France, allowing de facto polygamy among immigrants from North Africa (perhaps 15,000 such families), or, more mildly in the U.S., extenuating or even embracing Chicano student manifestos like this one from a MEChA website at San Jose State University:

Chicanismo involves a personal decision to reject assimilation and work towards the preservation of our cultural heritage…. By all means necessary, we Chicana/Chicano estudiantes of Aztlán, dedicate ourselves to taking our educational destiny into our own hands through the process of spreading Chicanismo, in the spirit of carnalismo…. As Chicanas and Chicanos of Aztlán, we are a nationalist movement of Indigenous Gente that lay claim to the land that is ours by birthright. As a nationalist movement we seek to free our people from the exploitation of an oppressive society that occupies our land.

Second-generation immigrants often take away from this student activism, multicultural school curriculum, government bureaucracy, and popular culture a mixed but mostly pernicious message: that long-standing prejudice intrinsic to a corrupt system is what keeps newcomers down; and consequently that self-esteem and self-confidence can only be imparted by a therapeutic course of study, airing past grievances and proposing new group compensation. Shunned is the idea that traditional education alone allows immigrants to master the host language, gain familiarity with the host country's traditions and customs, and acquire enough science, math, and liberal arts to compete with long-standing natives.

The result is often psychological chaos. Too many second-generation Hispanics in the U.S., and Arabs in France, romanticize their "mother" country, which often they have never seen and would never return to if they had—while deprecating their parents' adopted society. This schizophrenia is similar to what the polls reveal about the wishes of Mexican citizens themselves. Large numbers believe that the southwest U.S. belongs to them, yet they don't want to stay in their own country. If Mexico were to absorb the American Southwest, would Mexicans still wish to emigrate there?

Hard Choice

With millions of illegal aliens already here, borders wide open in a time of war, and the ideal of assimilation under assault, there really are no more painless choices. Mexico is under no compulsion to reform its corrupt system when millions of its disaffected simply head north and send precious dollars south (some $10-15 billion annually in worker remittances). For Mexico to change the present system would be a lose-lose proposition: more social tension at home, less money coming in from the north.

An end to cheap, industrious labor in the U.S. would cause initial hardship to the American economy, raise wages and costs, and redefine the American attitude to physical and even menial labor—positive in the long run, painful and easily demagogued in the short term. Yet because the U.S. has a far better record of assimilation than Europe, it makes no sense for us to continue to emulate European racial separatism, which offers immigrants neither the economic opportunity nor the cultural discipline to succeed.

We should start by letting in far fewer immigrants from Mexico. An allotment of about 100,000 legal entrants—reasonable people could differ on the numbers—would privilege Mexicans (in recognition of our historic ties) but still ensure that those who came would do so legally and in numbers that would mitigate their ghettoization. Rather than predicating entry into the U.S. mostly on family affiliations, we should try to use sensible criteria to assess suitable Mexican immigrants—knowledge of English, education levels, familiarity with American laws and customs—to ensure that they are competitive with other newcomers and do not perpetuate an unassimilated underclass.

Tripartite border enforcement—a permanent and systematic barrier of some sort, increased manpower for apprehension, and employer sanctions—is crucial to ensure that immigrants arrive legally and in numbers manageable for assimilation. On this the public—in a Zogby poll 68% of Americans favor stationing troops along the border to curb unlawful entry—is far ahead of either political party.

Guest workers are a bad idea, as we learned in the 1950s and '60s from our own bitter bracero experience ("good enough to work for you, but not good enough to live beside you"). Temporary laborers, as we see in the suburbs of Germany and other parts of Europe, will inevitably create a permanent helot class. Moreover, these workers would continually depress wages for entry-level jobs for legal immigrants and our own poor, who find it hard to compete with young Third World illegals who are in no position to be choosy about work or to complain to authorities about employer treatment. There is nothing in the American or European experience with guest workers to suggest that they would willingly leave when their tenure expired, that their sense of exploitation would not create and perpetuate social tension, and that they would not need welfare assistance in times of health crisis or unemployment. Nor is it clear that millions of immigrants would cease coming to the U.S. illegally when they found that they were not accorded guest worker privileges.

Amnesty is perhaps the most contentious issue in the present immigration debate—in some polls 70% of Americans oppose it. We have had six prior reprieves of various sorts since the notorious blanket amnesty of 1986. These accomplished little other than encouraging more immigrants to come across the border illegally on the logical assumption that in a few years their lawbreaking would be ignored, or rewarded with citizenship. And yet because the problem has mushroomed over four decades, there are now literally millions of Mexicans in their old age who are here illegally, have forgotten life in Mexico, and have lived essentially as Americans. Deporting long-time residents would, if nothing else, be a humanitarian and public relations nightmare.

Yet some sort of one-time amnesty, as opposed to the old rolling and periodic reprieves, could only be discussed in the context of closing the border, precluding guest worker programs, and returning to assimilationist policies, so that the present pool of millions of illegal aliens would vanish rather than being perpetually replenished. Very rapid assimilation might work if the pool of those who come illegally, without English or education, to work largely in low-paying service jobs, would be vastly curtailed. In some sense, guest workers are far more destabilizing than a one-time amnesty. The former constantly enlarges the number of exploited and soon to be disillusioned aliens; the latter ends it. The prohibition of bilingual government documents and services, and of a racially chauvinistic and separatist curriculum in our schools and universities, would also send a powerful message that one should not come north unless he is willing to become a full-fledged American in every linguistic, cultural, and political sense of the word.

And, of course, there must be radical change in our own minds and hearts. When encouraged by Americans to adopt the customs and language of citizens, immigrants are more easily accepted; intermarriage and integration naturally follow. We must not forget that it is far easier for a Mexican or an Arab to become part of American or French society, than it is for an expatriate African-American or European-American to be accepted as a Mexican citizen, or a Frenchman to be considered a true citizen of Islamic North Africa.

America could easily end up like France without sharing all of French society's pathologies. Alienated populations in both countries have immigrated for similar reasons. And both groups often have passed on their frustrations and disappointments to a subsequent generation who did not fully assimilate or prove competitive with the non-immigrant populace—and were allowed by their hosts to remain separate from society. Nonetheless, contrary to tendentious and inflammatory predictions, the rebellion in France is not likely to happen here. But there is no reason to tempt fate, and every reason to ameliorate our own problems before they worsen.

Newsweek's Robert Samuelson on assimilation and integration

Robert Samuelson in Newsweek on immigration and assimilation, here, via RCP:

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April 19, 2006
Newsweek

It's All About Assimilation

By Robert Samuelson

WASHINGTON -- It's all about assimilation -- or should be. One of America's glories is that it has assimilated many waves of immigrants. Outsiders have become insiders. But it hasn't been easy. Every new group has struggled: Germans, Irish, Jews and Italians. All have encountered economic hardship, prejudice and discrimination. The story of U.S. immigration is often ugly. If today's immigration does not end in assimilation, it will be a failure. By this standard, I think the major contending sides in the present bitter debate are leading us astray. Their proposals, if adopted, would frustrate assimilation.

On the one hand, we have the ``cop'' school. It adamantly opposes amnesty and would make being here illegally a felony, as opposed to being a lesser crime. It toughens a variety of penalties against illegal immigrants. Somehow, elevating the seriousness of the crime would deprive them of jobs, and then illegal immigrants would return to Mexico or wherever. This is a pipe dream; the numbers are simply too large.

But it is a pipe dream that, if pursued, would inflict enormous social damage. The mere threat of a crackdown stigmatizes much of the Hispanic population -- whether they're legal or illegal immigrants; or whether they've been here for generations. (In 2004, there were 40 million Hispanics, says the Pew Hispanic Center; about 55 percent were estimated to be native born, 25 percent legal immigrants and 20 percent illegal immigrants.) People feel threatened and insulted. Who wouldn't?

On the other hand, we have the ``guest worker'' advocates. They want 400,000 or more new foreign workers annually. This would supposedly curtail illegal immigration -- people who now sneak into the country could get work permits -- and also cure ``shortages'' of unskilled American workers. Everyone wins. Not really.

For starters, the term guest worker is a misnomer. Whatever the rules, most guest workers would not leave. The pull of U.S. wages (on average, almost five times what can be earned in Mexico) is too great. Moreover, there's no general shortage of unskilled workers. In March, the unemployment rate of high-school dropouts 25 years and older was 7 percent. By contrast, the unemployment rate of college graduates in March was 2.2 percent. Given the glut of unskilled workers relative to demand, their wages often lag inflation. From 2002 to 2004, consumer prices rose 5.5 percent. Median wages rose 4.3 percent for landscapers and not at all for waitresses.

Guest worker advocates don't acknowledge that poor, unskilled immigrants --whether legal or illegal -- create huge social costs. Every year, the Census Bureau issues a report on ``Income, Poverty and Health Insurance Coverage.'' According to the 2004 report, Hispanic children in poverty are up 43 percent since 1990; meanwhile, the numbers of black and non-Hispanic white children in poverty declined 16.9 percent and 18.5 percent, respectively. Also, Hispanics account for most (60 percent) of the increase of Americans without health insurance since 1990. The overall increase was 11.1 million; Hispanics, 6.7 million.

We have a conspiracy against assimilation. One side would offend and ostracize much of the Hispanic community. The other would encourage mounting social and economic costs. Either way, we get a more polarized society.

On immigration, I am an optimist. We are basically a decent, open and tolerant nation. Americans respect hard work and achievement. That's why assimilation has ultimately triumphed. But I am not a foolish optimist. Assimilation requires time and the right conditions. It cannot succeed if we constantly flood the country with new, poor immigrants or embark on a vendetta against those already here.

I have argued that our policies should recognize these realities. Curb illegal immigration with true border barriers. Provide legal status (call it amnesty or whatever) -- first, work permits, then citizenship -- for most illegal immigrants already here. Remove the job lure by imposing harsh fines against employers who hire new illegal immigrants. Reject big guest worker programs.

It's sometimes said that today's Hispanics will resemble yesterday's Italians. Although they won't advance as rapidly as some other groups of more-skilled immigrants, they'll still move into the mainstream. Many have -- and will. But the overall analogy is a stretch, according to a new study, ``Italians Then, Mexicans Now,'' by sociologist Joel Perlmann of Bard College. Since 1970, wages of Mexican immigrants compared with those of native whites have declined. By contrast, wages of Italians and Poles who arrived early in the last century rose over time. For the children of immigrants, gaps are also wide. Second-generation Italians and Poles earned typically earned 90 percent or more compared to native whites. For second-generation Mexican-Americans, the similar figure is 75 percent.

One big difference between then and now: immigration slowly halted during and after World War I. Outsiders and insiders could adapt to each other. We should heed history's lesson.

UK negligence tort action re foreign aid project

Very good and interesting article on something that could turn out to be quite important in the years ahead, not just in the UK, but - in many respects far more likely, given the US tort system - in the United States. Abstract from the online bepress journal Global Jurist:


AUTHOR: Amir Attaran

TITLE: Will Negligence Law Poison the Well of Foreign Aid? A Case Comment on: Binod Sutradhar v. Natural Environment Research Council

SUGGESTED CITATION: Amir Attaran (2006) "Will Negligence Law Poison the Well of Foreign Aid? A Case Comment on: Binod Sutradhar v. Natural Environment Research Council", Global Jurist Advances: Vol. 6: No. 1, Article 3.

http://www.bepress.com/gj/advances/vol6/iss1/art3

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ABSTRACT: Although the foreign aid enterprise is a multibillion dollar industry that is active worldwide, there appears never to have been a successful common law negligence action brought in respect of personal injury occasioned by a foreign aid scheme. In this paper, I discuss the first such case of this kind which is imminently to reach the House of Lords: Binod Sutradhar v. Natural Environment Research Council. Background is supplied on the contemporary foreign aid enterprise, and its relation to the principles of negligence, using Sutradhar as an explanatory vehicle.

Reuel Marc Gerecht on Iran and US policy choices

Read the long, serious essay by Reuel Marc Gerecht in the April 24, 2006 Weekly Standard, here. It is a very sobering article - even those who fundamentally disagree with its policy prescriptions are likely to admit that, if nothing else, it persuasively makes the case that decisions, one way or another, will force themselves sooner rather than later, and far sooner than the Bush administration would like. Establishing the fundamental US posture, now into the future, toward the possibility of a nuclear Iran seems ever more likely to fall to the Bush administration, whether it likes it or not - and it almost certainly does not.

The alternative is sketched out in the forthcoming Policy Review, in an article by the Hoover Institution's Michael McFaul. McFaul argues for seeing the internal politics of Iran as providing greater scope than is often acknowledged from the outside, and argues for a strategy engaging Iranian civil society. I will link to it when it actually appears and discuss it when I've read the whole thing and not just summaries.

Panel 1: Presidential power versus congressional legislation (and the role of courts) in the war on terror - webcast and podcast links

The conference sponsored by Washington College of Law, American University, and the Hoover Instititution, Stanford University, "Institutionalizing the War on Terror Through Congressional Legislation" went off very well on Monday, April 10, 2006. Tod Lindberg and I both thank all the participants.

Panel 1, a sort of loose debate on the role of presidential power versus Congressional legislation in the war on terror, was sober and carefully argued by Bradford Berenson (formerly associate White House counsel), Jamin Raskin (WCL constitutional law professor), David Rivkin (former Reagan administration lawyer and prolific writer on national security issues), Amanda Frost (WCL federal courts professor), Benjamin Wittes (Washington Post editorial writer), and masterfully moderated by Daniel Marcus (former 9-11 Commission general counsel, formerly many senior positions in government, and WCL professor). And we also had a number of very informed and thoughtful people in the audience asking questions, including Harvard's Jack Goldsmith and the Washington Post's Supreme Court reporter, Charles Lane.

The webcast can be found on the WCL server, here. (Here it is in full: http://147.9.135.143/mediasite/viewer/?peid=bbc4bdf6-0903-49af-8a30-a6fc7da0253a)

The podcast can be found on the WCL server, here. (http://www.wcl.american.edu/podcast/podcast.cfm?uri=http%3A%2F%2Fwww%2Ewcl%2Eamerican%2Eedu%2Fpodcast%2Faudio%2F20060412%5FWCL%5FWarOnTerror%2Emp3)

I strongly recommend listening to the panel - and be sure to make it all the way to Ben Wittes' extremely intelligent remarks as the last panelist.

The other two panels were not recorded at the request of a couple of panelists who wanted to be able to speak more freely than is usual, so podcasts and webcasts are not available for those panels.

Panel 2: Detention/ Rendition/ Interrogation/ Defining Torture

Memo to participants on the second panel of conference on Legislating the War on Terror, Monday, April 10:

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In the first panel of this conference, we debate the question of whether and to what extent the war on terror, over the long run, should be conducted under the legal authority of the president, the president's executive power, or instead under legislation enacted by Congress, and moreover what is the appropriate role for the courts. In panels 2 and 3, however, we assume that, on whatever grounds, we have concluded that Congress should legislate in various areas.

There are many areas in which Congress could, and of course has already, legislated - terrorism and financing, the McCain amendment, etc. There are also many issues of great controversy, in the debate between security and civil liberties - having limited time on the program - and we have selected two that have seemed important and controversial, detention/interrogation issues and, in panel 3, use of force issues. There are, of course, many more - surveillance, proposals for special terrorism courts, etc. But we've limited ourselves to these two.

In panel 2, the idea is to ask what legislation Congress should enact - the substantive standards and procedural structures of review - with regards to detention (including rendition), on the one hand, and interrogation (including what is acceptable and not acceptable, and what crosses the legal line into torture which, pace Dershowitz, we will assume always to be illegal). So for each of these basic areas of custody - threshhold for detaining someone, conditions and duration of detention, conditions for release from detention, interrogation practices, the line dividing permissible interrogation from torture - I would ask you to discuss the substantive standards that should be enacted by Congress, and the procedural structures that Congress should impose, such as recourse to courts or other review, on detention and interrogation. I put that very much in the abstract, in order to accommodate what I suspect are a wide range of views on this.

In the detention area, consider the following questions, although please feel free to introduce others:

Does it make any difference to your views on the particular issues here whether you conceive of all or parts of the war on terror as "war" or as something else, such as "criminal law enforcement"?

What grounds should legislation provide for the US to have in detaining various legal categories of people - foreign fighters on the battlefield, US citizens on a foreign battlefield, US citizens abroad, US citizens in the US? If the war on terror is conceived as a war, what difference does duration of detention make? If it is conceived as criminal law enforcement, is the answer different?

Do differences in the possible time that detainees might be held - short term for days or weeks, months, or long term - years or possibly even forever - make a difference to the kinds of grounds legislated for holding people?

What should the standards for rendition to another state be - should they be the same substantive standard as for the US holding the person, or should it be different? (This involves both the question of grounds for detaining the person in the first place as well as custodial treatment.)

Should one look to the law of war, US constitutional standards, international human rights standards, or something else to establish a legislative base line for the act of detention as well as conditions of custody? In drafting legislation, what other legal regimes might one consider to find a source of standards?

What procedural measures for review and appeal should be created by legislation? Should Congress provide a statutory regime for military commissions, should these cases be moved into US courts, and what should be the role of habeas corpus?

Should the Congress create some kind of special terrorism court system to deal with these cases with special forms of evidence, secrecy, and review?

In matters of interrogation, what should be legal standard for permissible interrogation? How does one go about defining torture in concrete ways that give genuine guidance to interrogators and those reviewing their actions?

Is the McCain amendment enough (or too much)?

Should Congress mandate the application of the language of Common Article 3 as the measure of custodial treatment, in interrogation as well as other settings? Is that because it is required by international law, or is it a matter of Congress believing that it would provide the appropriate standard?

Should the level of permissible "aggressive" or "coercive" or "harsh" interrogation - still legally short of torture - vary, meaning increase, depending on the level of knowledge of who the person being interrogated is? In other words, if you know with 100% certainty that you are interrogating Zarqawi, does that allow a greater amount of coercion short of the legal definition of torture than would be the case for someone about whom one knew nothing?

When HRW's Ken Roth says that "vigorous" questioning of terrorist suspects is permissible, what does that mean concretely? Specifically, does it allow anything other than what the Geneva Conventions would already permit to be done to a bona fide POW?

Panel 3: Use of force short of war in the war on terror

Below is the discussion memo I sent to participants in the third panel on the Monday, April 10 conference on Legislating the War on Terror. This panel is titled, Use of force short of war in the war on terror:

***
In the first panel in this day-long conference, we debate the question of whether and to what extent the war on terror, over the long run, should be conducted under the legal authority of the president, the president's executive power, or instead under legislation enacted by Congress, and moreover what is the appropriate role for the courts. In panels 2 and 3, we assume that, on whatever grounds, we have concluded that Congress should legislate in various areas. There are many areas in which Congress could, and of course has already, legislated - terrorism and financing, the McCain amendment, etc. There are also many issues of great controversy, in the debate between security and civil liberties - having limited time on the program - and we have selected two that have seemed important and controversial, detention/interrogation issues and, in panel 3, use of force issues. There are, of course, many more - surveillance, proposals for special terrorism courts, etc. But we've limited ourselves to these two.

Use of force questions have taken a back seat, in the last year or more, to other controversial issues of the war on terror such as interrogation practices and Guantanamo. However, they have been a controversial part of the debate since 9-11 and are likely to be so again. What uses of force are at issue from the standpoint of something that Congress might see fit to legislate or regulate in some way?

One the one hand, the case of the use of force that rises to the legal definition of armed conflict invokes an already well-defined set of use of force rules under international humanitarian law and absorbed into US law and military regulation.

On the other hand, at the opposite extreme, we have defined legal rules for uses of force that operations that are accepted as being criminal justice and law enforcement. The purpose for using force in those situations is to, literally, "arrest" someone and take them into custody. Deadly force might be involved in seeking to make that happen, but the fundamental purpose is to occasion surrender pursuant to an arrest. Moreover, the rules of criminal law enforcement do not permit the acceptance of collateral damage to third parties in the way accepted in armed conflict - police are not permitted to say, well, in apprehending Joe, we had acceptable collateral damage - third party protection comes first in police operations. And beyond that, there are the questions of whether persons picked up in such raids abroad or domestically have various constitutional rights, Miranda warnings, etc., further to a prosecution in US courts - the policies of the Clinton years pre-9/11.

The first question, then, about the use of force is whether these two paradigms exhaust the field for use of force in the war on terror. Are all US government uses of force reducible to one or the other of these conditions, either war, governed by the rules of armed conflict, on the one hand, or else law enforcement operations, governed by criminal justice rules, on the other?

Or, alternatively, should we seek to create a third category of the use of force that is neither armed conflict nor criminal justice and, if so, what should the legal rules for it be that Congress migh adopt?

What kinds of situations might raise such a possibility? Let me suggest three.

One is targeted killings and assassinations - for example, the Yemen predator drone strike from several years ago. That strike raised a number of questions - about the legal status of operations on another sovereign's territory, about collateral damage to third parties, about the certainty of the intelligence information involved in determining the target, and about the question of whether the US should have sought not to kill the target, but to arrest him. How should such a situation be conceived for purposes of law and regulation? Is it part of a legal armed conflict, against Al Qaeda and terrorist groups, in which the applicable law is international humanitarian law? Or, because it takes place outside of the zones where armed conflict is indisputably underway - Afghanistan and Iraq - it is not legally part of an armed conflict and hence does not fall under the law of war? In that case, ought it to be a criminal law enforcement operation, seeking to make an arrest, rather than kill a target?

Or should the Yemen strike be conceived as a third category, with its own set of rules? And in that case, what should (a) the substance of those rules be and (b) from the standpoint of Congress, what kind of oversight should apply to such operations - who should approve those operations, who should be informed, given that they involve, on the one hand, national security and foreign policy powers of the president but are acknowledged not to be war. There are, in other words, both substantive and procedural aspects to these cases.

The Yemen strike - targeted killing and assassination - does not exhaust the possible cases, however. A second kind of situation might involve a "snatch" - where the purpose of the operation is not to kill, but to seize the person for intelligence purposes, for questioning. Should every case of that kind be conceived as a law enforcement arrest, subject to regular law enforcement procedures and protections? Is it possible that the US might undertake an abduction, rather than a targeted killing, in order to interrogate the person - leaving to the second panel the question of what permissible methods of interrogation might be used, must the abduction itself be conducted as a law enforcement operation, with Miranda warnings and so on, as has been done in past years? Or should Congress define another type of operation, an intelligence detention, with its own rules? In that case, what should the substance of those rules be - how does one establish the permissible level of force, collateral damage, etc.? Does the level of certainty you have about the target affect the kind of force you can use? What about permissible collateral damage? And again procedurally, how should such actions be monitored and what role should Congress have in overseeing it, and should it vary by the agency that is involved, CIA versus Special Forces, for example?

A third case might be the targeting of objects for destruction, rather than people. Should the use of force in all such cases be considered as legal armed conflict? Consider the case of the Sudan pharmaceutical factory during the 1990s - was that actually a matter of armed conflict? Should localized uses of force against objects fall under a special regime that is a matter of covert operations not considered war, or should it all be considered "armed conflict," and under its rules?

One may conclude any number of things about this:

One may conclude that the proper legal regulation falls into two categories - armed conflict or criminal law enforcement - and that there should be no third category.

One may conclude that a third category should be defined, with its own set of substantive rules and procedural oversight by Congress.

One may conclude that although there should be a defined third category, its substantive rules for the use of force should be those of armed conflict in any case - with respect to proportionality, collateral damage, etc.

One may conclude that all these actions really are part of a genuine, worldwide armed conflict, governed by the laws of war.

One may conclude that the necessary interactions (in order to successfully pursue the war on terror with foreign cooperation) with foreign police and intelligence agencies precludes all or nearly all of these acts, and that if they take place on foreign soil, they should be undertaken by local authorities - there is never an appropriate place for such uses of force by US actors directly.

Other kinds of conclusions?

I have wanted to raise this discussion in part because it has dropped out of sight a bit in relation to other controversial issues about the war on terror, such as surveillance and interrogation/detention. The question of "covert" uses of force will not go away and seems to be an essential part of what comprehensive legislation on the war on terror would need to cover.

Thanks to Legal Theory Blog and Opinio Juris

... for publicizing the Monday, April 10 conference on "Institutionalizing the War on Terror Through Legislation?" And now I see, alas, that it is going head to head with a meeting at Georgetown on roughly the same subject. And I had actually checked with different law schools in DC before scheduling this date!

Georgetown, as always, has splendid folks on its program - BUT (shameless advertisement) would you really want to miss Brad Berenson and David Rivkin squaring off on executive power with WCL's own Jamin Raskin and Amanda Frost? With Ben Wittes of the Washington Post and Dan Marcus formerly of the 9-11 Commission providing wise interpolation? Etc. Here, to reiterate, is the program:

***
American University Washington College of Law &
The Hoover Institution, Stanford University
present

Institutionalizing the War on Terror Through Congressional Legislation


Monday, April 10, 8:30 am - 2:00 pm, including lunch
American University Washington College of Law, 4801 Massachusetts Avenue, NW

The Bush administration and many others have declared that the war on terror is a long term effort that will outlast any particular presidential administration and in some ways resembles the combined military and ideological struggle of the Cold War. In the long term war on terror, is it possible to conduct it by relying primarily on the power and authority of the executive branch, or does the long term struggle require that Congress institutionalize it through legislation? Three panels in this one day conference will consider ways in which the war on terror should be institutionalized for the long term through congressional legislation, rather than relying primarily upon executive authority. The first panel will debate the question of whether the war on terror should be legislated - it debates the fundamental premise of legislative action underlying the other two panels. The second panel considers some of the most incendiary questions in the war on terror - how to legislate legal rules for detention, rendition, interrogation, and what crosses the legal line into torture. The third panel considers what rules should be set for the use of force that does not rise to the legal definition of armed conflict, but is arguably not simply criminal law enforcement, either - should there be such a category of force at all, and if so, what should the legal rules be?

8:30-9:00 Registration and Coffee

9:00-9:15 Opening Comments – Kenneth Anderson

9:15-10:30 Discussion 1: Executive Power versus Congressional Legislation in the War on Terror

Presenters: Bradford Berenson; Amanda Frost; Jamin Raskin; David Rivkin; Ruth Wedgwood; Benjamin Wittes. Moderator: Daniel Marcus

10:45-12:00 Discussion 2: Standards for Detention/ Rendition/ Interrogation/ Defining Torture
Presenters: Kenneth Anderson; Lee Casey; Jennifer Daskal; Andrew McCarthy; Matthew Waxman; Ruth Wedgwood. Moderator: Tod Lindberg

12:00-12:30 Buffet Lunch

12:30-1:45 Discussion 3: Standards for Use of Force Legally Short of War

Presenters: Lee Casey; Lee Feinstein; Andrew McCarthy; Laura Olson; Matthew Waxman. Moderator: Kenneth Anderson

Participants:

Kenneth Anderson, professor, WCL, and a research fellow of the Hoover Institution; Bradford Berenson, partner at Sidley & Austin, from 2001-2003 Associate Counsel to the President; Lee Casey, a lawyer formerly with the Justice Department under the Reagan and first Bush administrations; Jennifer Daskal, United States advocacy director for Human Rights Watch; Lee Feinstein, senior fellow for US foreign policy and international law with the Council on Foreign Relations; Amanda Frost, professor, WCL; Tod Lindberg, editor of Policy Review and a research fellow of the Hoover Institution; Andrew McCarthy, senior fellow of the Foundation for the Defense of Democracies; Daniel Marcus, professor, WCL, served as counsel to the 9-11 Commission; Laura Olson, legal advisor to the International Committee of the Red Cross; Jamin Raskin, professor, WCL; David Rivkin, a lawyer formerly in the Justice Department under the Reagan and first Bush administrations; Matthew Waxman, deputy director of the Office of Policy Planning, US State Department, and formerly responsible for detainee affairs in the Department of Defense; Ruth Wedgwood, professor, School of Advanced International Studies, Johns Hopkins University; Benjamin Wittes, an editorial writer with the Washington Post.

For More Information and to register, please Contact the Office of Special Events & CLE at 202.274.4075 or secle@wcl.american.edu or register online at www.wcl.american.edu/secle/cle_form.cfm.

My concern with too many law students and basic math

Steyn on Bawer and Berlinksi on Europe

Ah, the irrepressible Mark Steyn ... from Maclean's, here.

***
April 05, 2006
Maclean's

Wake up, Europe. It may already be too late.
Why the fall and spring riot seasons in France are signs of the coming apocalypse

MARK STEYN

I've had a recurring experience in the last few months. I'll be reading some geopolitical tract like Sands Of Empire: Missionary Zeal, American Foreign Policy, and the Hazards Of Global Ambition by Robert W. Merry, and two-thirds of the way in I'll stumble across:

"With the onset of the Iraq War and European opposition, many Americans embraced a severe anti-European attitude. 'To the list of polities destined to slip down the Eurinal of history,' wrote Mark Steyn in the Jewish World Review, 'we must add the European Union and France's Fifth Republic.' "

Or I'll be slogging through Beyond Paradise and Power: Europe, America and the Future of a Troubled Partnership, edited by Tod Lindberg, and find that Timothy Garton Ash's essay on "The New Anti-Europeanism In America" begins thus:

"In the year the United States went to war against Iraq, readers saw numerous articles in the American press on anti-Americanism in Europe. But what about anti-Europeanism in the United States? Consider the following:

"'To the list of polities destined to slip down the Eurinal of history, we must add the European Union and France's Fifth Republic. The only question is how messy their disintegration will be.' (Mark Steyn, Jewish World Review, May 1, 2002)"

If the best evidence of the pandemic of "anti-Europeanism in the United States" is a Canadian columnist writing for a Canadian newspaper (Jewish World Review is a plucky New York website that happened to reprint a piece of mine from the National Post), that would seem to be self-refuting. A European who wanders along to his local bookstore to sate his anti-Americanism will find a groaning smorgasbord of tracts catering to every taste, including the French bestseller that claims the plane that hit the Pentagon on 9/11 never existed. An American who strolls into Barnes and Noble to sate his anti-Europeanism will have to make do with a two-sentence quote by an obscure Canadian on page 243 of some book sternly warning of the rampant anti-Europeanism all around.

Until now. Two books have just hit the shelves -- While Europe Slept: How Radical Islam is Destroying the West from Within by Bruce Bawer, and Menace In Europe: Why The Continent's Crisis is America's, Too by Claire Berlinski. In media-speak, two of anything makes a trend, and Clive Davis doesn't care for this one. Davis is a perceptive commentator for the Times of London and, in reviewing Bawer and Berlinski for the Washington Times, he sniffed: "What worries me about books like this is that they risk reducing Europe to a caricature in much the same way as Stupid White Men turns America into one big Wal-Mart with drive-by shootings."

That's unfair, and does a disservice to both authors. For many Europeans -- and Canadians -- the Stupid White Men school of anti-Americanism is a form of consolation: the Great Moron may be economically, militarily and culturally dominant but we can still jeer at what a bozo he is. Bawer and Berlinski, both genuine American Europhiles, have a serious purpose: in his titular evocation of the young JFK's book on pre-war European appeasement, While England Slept, Bruce Bawer makes plain that he wants to wake Europe up -- and, if it's too late for that, then at least to wake up America. Neither is a xenophobic yahoo: Berlinski "divides her time" -- as the book jackets say -- between Paris and Istanbul; she has a doctorate in international relations from Oxford. Bawer is a homosexual who moved to the Continent because he was weary of the theocratic oppressiveness of redneck America and wanted to live his life in the gay utopia of the Netherlands. Alas, when he got there he found the gay scene had gone belly up and, theocratic oppressor-wise, Pat Robertson has nothing on some of the livelier Amsterdam madrasas. Both books are somewhat overwrought -- Berlinski dwells on her own relationship with some Muslim lad who later figured in Zadie Smith's hit novel White Teeth, and Bruce Bawer is reluctant to give up on the idea that a bisexual pothead hedonist utopia is a viable concept rather than, as it's proving in the Netherlands, a mere novelty interlude; his book might have been better called While Europe Slept Around.

Nonetheless, if Clive Davis thinks this is anti-Euro rotten fruit-pelting, that's more of a reflection on the complacency of the Continent's own commentariat. The difference between "anti-Americanism" and "anti-Europeanism" is obvious. In, say, 2025, America will be much as it is today -- big, powerful, albeit (to sophisticated Continentals) absurdly vulgar and provincial. But in 20 years' time Europe will be an economically moribund demographic basket case: 17 Continental nations have what's known as "lowest-low" fertility -- below 1.3 live births per woman -- from which no population has ever recovered.

All those heavyweight scholars who immortalized between hard covers my cheap Eurinal-of-history aside did so because it was so self-evidently risible. Well, it looks a lot less so in 2006 than it did in 2002. The trap the French political class are caught in is summed up by the twin pincers of the fall and spring riot seasons. The fall 2005 rioters were "youths" (i.e. Muslims from the suburbs), supposedly alienated by lack of economic opportunity. The spring 2006 rioters are "youths" (i.e. pampered Sorbonne deadbeats), protesting a new law that would enable employers to terminate the contracts of employees under the age of 26 in their first jobs, after two years.

To which the response of most North Americans is: you mean, you can't right now? No, you can't. If you hire a 20-year-old and take a dislike to his work three months in, tough: chances are you're stuck with him till mid-century. In France's immobilized economy, it's all but impossible to get fired. Which is why it's all but impossible to get hired. Especially if you belong to that first category of "youths" from the Muslim ghettos, where unemployment is around 40 to 50 per cent. The second group of "youths" -- the Sorbonne set -- protesting the proposed new, more flexible labour law ought to be able to understand that it's both necessary to the nation and, indeed, in their own self-interest: they are after all their nation's elite. Yet they're like lemmings striking over the right to a steeper cliff.

When most of us on this side of the Atlantic think of "welfare queens," our mind's eye conjures some teenage crack whore with three kids by different men in a housing project. But France illustrates how absolute welfare corrupts absolutely. These Sorbonne welfare queens are Marie Antoinettes: unemployment rates for immigrants? Let 'em eat cake, as long as our pampered existence is undisturbed.

The only question about Europe is whether it's going to be (a) catastrophically bad or (b) apocalyptically bad, as in head for the hills, here come the Four Horsemen: Death (the self-extinction of European races too self-absorbed to breed), Famine (the withering of unaffordable social programs), War (civil strife as the disaffected decide to move beyond mere Citroën-torching), and Conquest (the inevitable victory of the Muslim successor population already in place). I'd say option (b) looks the better bet, for a few if not all Continental nations: united they'll fall, but divided, a handful might stand a chance.

However, if, like Clive Davis, you find Bawer and Berlinski too shrill, try Charles Murray's new book, In Our Hands. This is a fairly technical economic plan to replace the U.S. welfare system, but, in the course of it, he observes that in the rush to the waterfall the European canoe is well ahead of America's. Murray stops crunching the numbers and makes the point that, even if it were affordable, the European social democratic state would still be fatal. "Give people plenty and security, and they will fall into spiritual torpor," he writes. "When life becomes an extended picnic, with nothing of importance to do, ideas of greatness become an irritant." If Bawer's book is a wake-up call, Murray reminds us that western Europe long ago threw away the alarm clock and decided to sleep in.

And, if even Murray's too much, go back to the granddaddy of them all -- Gibbon's Decline and Fall of the Roman Empire. Recounting the Muslim march on France 1,300 years ago, Gibbon writes:

"The decline of the French monarchy invited the attack of these insatiate fanatics. The descendants of Clovis had lost the inheritance of his martial and ferocious spirit; and their misfortune or demerit has affixed the epithet of lazy to the last kings of the Merovingian race. They ascended the throne without power, and sunk into the grave without a name. . . . The vineyards of Gascony and the city of Bordeaux were possessed by the sovereign of Damascus and Samarcand; and the south of France, from the mouth of the Garonne to that of the Rhone, assumed the manners and religion of Arabia."

Hmm.

Hoover Institution-Washington College of Law Conference on Legislating the War on Terror

I'm pleased to announce a very small conference sponsored by the Hoover Institution and Washington College of Law, titled "Institutionalizing the War on Terror Through Legislation?" Come if you are in DC on Monday, April 10. Here is the program as it currently stands:

***
Institutionalizing the War on Terror Through Legislation?

Three Roundtable Discussions

Washington College of Law, American University
The Hoover Institution, Stanford University
Monday, April 10, 2006

WCL Room 603
4801 Massachusetts Avenue, NW, Washington DC

The three roundtable discussions in this program raise the question of whether the war on terror can or should be pursued through the executive power of the president or instead should be institutionalized for the long term through congressional legislation. If the war on terror should be institutionalized through legislation, what standards should such legislation set in vital areas such as detention and interrogation, and the use of force? The program is deliberately framed as small roundtable discussions to allow for maximum exchange of ideas by panelists. The public and students are welcome to come and attend any or all of the panels. CLE credit applied for.

Program Schedule

8:30-9:00 Registration and Coffee

9:00-9:15 Opening Comments – Kenneth Anderson.

9:15-10:30 Discussion 1: Executive Power versus Congressional Legislation in the War on Terror.

Daniel Marcus, moderator; Bradford Berenson; Amanda Frost; Jamin Raskin; David Rivkin; Ruth Wedgwood; Benjamin Wittes.

10:30-10:45 Coffee Break

10:45-12:00 Discussion 2: Standards for Detention/ Rendition/ Interrogation/ Defining Torture.

Tod Lindberg, moderator; Kenneth Anderson; Lee Casey; Jennifer Daskal; Andrew McCarthy; Matthew Waxman; Ruth Wedgwood; Benjamin Wittes.

12:00-12:30 Buffet Lunch

12:30-1:45 Discussion 3: Standards for Use of Force Legally Short of War.

Kenneth Anderson, moderator; Lee Casey; Lee Feinstein; Andrew McCarthy; Laura Olson; Matthew Waxman.



Participants

Kenneth Anderson is a professor at Washington College of Law, American University and a research fellow of the Hoover Institution.

Bradford Berenson is a partner at Sidley & Austin, and from 2001-2003 was Associate Counsel to the President.

Lee Casey is a lawyer formerly with the Justice Department under the Reagan and first Bush administrations.

Jennifer Daskal is United States advocacy director for Human Rights Watch.

Lee Feinstein is senior fellow for US foreign policy and international law with the Council on Foreign Relations.

Amanda Frost is a professor at Washington College of Law.

Tod Lindberg is editor of Policy Review and a research fellow of the Hoover Institution.

Daniel Marcus is a professor at Washington College of Law and served as counsel to the 9-11 Commission.

Andrew McCarthy is a senior fellow of the Foundation for the Defense of Democracies.

Laura Olson is a legal advisor to the International Committee of the Red Cross.

Jamin Raskin is a professor at Washington College of Law.

David Rivkin is a lawyer formerly in the Justice Department under the Reagan and first Bush administrations.

Matthew Waxman is currently deputy director of the Office of Policy Planning, US State Department, and was formerly responsible for detainee affairs in the Department of Defense.

Ruth Wedgwood is a professor at the School of Advanced International Studies, Johns Hopkins University.

Benjamin Wittes is an editorial writer with the Washington Post.

ASIL Opinio Juris blogging reception, Thursday, March 30, 7:30 pm

For those of you either attending the American Society of International Law meetings or in the DC area, there will be a reception and open discussion of blogging at the ASIL meeting - Thursday, March 30, 7:30 pm in the Longworth Room of the Fairmont Hotel, 24th and M Street, DC. It is hosted by the very, very cool Opinio Juris blog members, and looks to be a wonderful event. I, unfortunately, have a memorial service to attend that night, so can't make it, but I hope everyone else does.

A tentative attempt by the Dutch to be clear with immigrants about their liberal, secular culture

The NYT had a longer piece on this, but here is the public AP version. Text:

***
By BRUCE MUTSVAIRO, Associated Press Writer
Wed Mar 15, 2:35 PM ET

The camera focuses on two gay men kissing in a park. Later, a topless woman emerges from the sea and walks onto a crowded beach. For would-be immigrants to the Netherlands, this film is a test of their readiness to participate in the liberal Dutch culture.

If they can't stomach it, no need to apply.

Despite whether they find the film offensive, applicants must buy a copy and watch it if they hope to pass the Netherlands' new entrance examination.

The test — the first of its kind in the world — became compulsory Wednesday, and was made available at 138 Dutch embassies.

Taking the exam costs $420. The price for a preparation package that includes the film, a CD ROM and a picture album of famous Dutch people is $75.

"As of today, immigrants wishing to settle in the Netherlands for, in particular, the purposes of marrying or forming a relationship will be required to take the civic integration examination abroad," the Immigration Ministry said in a statement.

The test is part of a broader crackdown on immigration that has been gathering momentum in the Netherlands since 2001.

Anti-immigration sentiment peaked with filmmaker Theo van Gogh's murder by a Dutch national of Moroccan descent in November 2004.

Both praise and scorn have been poured on Immigration Minister Rita Verdonk, the architect of the new test and other policies that have reduced immigration by at least a third.

"If you pass, you're more than welcome," Verdonk said. "It is in the interest of Dutch society and those concerned."

Not everyone is happy with the new test.

"Today is a black day for the people intending to bring their partners to Holland," said Buitenlandse Partner, a lobbying group for mixed Dutch/immigrant couples.

Dutch theologian Karel Steenbrink criticized the 105-minute movie, saying it would be offensive to some Muslims.

"It is not a prudent way of welcoming people to the Netherlands," said Steenbrink, a professor at the University of Utrecht. "Minister Verdonk has radical ideas."

But Mohammed Sini, the chairman of Islam and Citizenship, a national Muslim organization, defended the film, saying that homosexuality is "a reality."

Sini urged all immigrants "to embrace modernity."

A censored version with no homosexual and nude material had been prepared because it is illegal to show such images in Iran and some other countries, filmmaker Walter Goverde said.

"With all the respect I have for all religions, I think people need to understand that Holland has its own liberal side as well," he said.

After viewing the film, which is available in most languages, applicants are then quizzed on important Dutch factoids such as the number of provinces that make up the Netherlands; the role played by William of Orange in the country's history; and Queen Beatrix's monarchial functions.

There are some major exemptions. EU nationals, asylum-seekers and skilled workers who earn more than $54,000 per year will not be required to take the 30-minute computerized exam.
Also, citizens of the United States, Australia, New Zealand, Canada, Japan and Switzerland are exempt.

Timothy Waters on the long term effects of the Milosevic trial and death

Timothy Waters, a law professor who worked on the original indictment of Milosevic, comments in the Christian Science Monitor on the future of international criminal trials. I think he is fundamentally right. Here. Thanks RCP.

***
From the March 16, 2006 edition - http://www.csmonitor.com/2006/0316/p09s01-coop.html
Christian Science Monitor

What now for war trials after Milosevic?

Milosevic's untimely death is a reminder that courts aren't the only tool for justice.

By Timothy Waters

OXFORD, MISS. - When the team I worked on at the Yugoslav war crimes tribunal which indicted Slobodan Milosevic during the Kosovo war, we were making justice "in real time." Time slowed a great deal after that, coming to a stop this week when Mr. Milosevic died. The Serb strongman responsible for so much bloodshed in the Balkans, the master tactician who grasped instinctively for each chance at power even as his kingdom narrowed to a courtroom, has run out of tricks and out of days. He died not as a master of his country, but a prisoner of international justice.

But this is no cause for celebration. Milosevic's death is a blow to the tribunal, which invested years in its flagship case. When he was transferred to The Hague in 2001, hopes were high that the architect of ethnic cleansing would face justice, and a definitive record of the war would be established. Instead, Milosevic will become a grim footnote. It's hard to say he won, but clearly international law hasn't.

The truth is, we expect too much of international justice. Tribunals have proliferated since the cold war, becoming the international community's tool of choice for responding to mass violence. In the process, law has crowded out other options. We condemn amnesties as unacceptable impunity and insist on the absolute priority of criminal justice. But law is a fragile process with uncertain effects. Claims that international courts deter violence, create a record, or promote reconciliation remain speculative.

The tribunal has failed to deter: Both Srebrenica and Kosovo happened on its watch. To some that just shows Milosevic should have been indicted earlier rather than making him a player in the Peace Accords at Dayton, Ohio. Maybe, but then we might not have gotten a Bosnian peace deal. In any event, military force - not threats of prosecution - made our belated interventions in the Balkans credible.

Milosevic's death means no verdict, denying the tribunal the chance to establish a definitive record. Yet this only highlights the problem with expecting international justice to play a truth-telling role in the first place. Courts don't write histories; prosecutors go for conviction, not a record. Indeed, one problem with the prosecution's case was that it tried to tell the whole story of the war and drowned in its own sprawling narrative.

Nor has the tribunal contributed to regional reconciliation. Few Serbs accept the tribunal's legitimacy. Former Yugoslavia's other communities may praise the tribunal when it convicts their enemies but not when it convicts one of their own. In Bosnia, reconciliation was never going to be easy, but the tribunal has failed to create common ground among its peoples.

And what are the costs? International trials are slow. They are expensive, drawing resources from other initiatives. More fundamentally, fetishizing law narrows our options for supporting transitional societies. Trials are important, but it's wrong to prioritize convictions over peace and stability: Sometimes insisting on arrest can destabilize fragile states.

Yet without missing a beat, international law turns from disappointment to the next indictee who is key to everything. Now that Milosevic is dead, focus has shifted to Bosnian Serbs Radovan Karadjic and Ratko Mladic as the key players who must be brought to justice. I, too, hope they are tried, but only if it contributes to regional stability, not because outsiders need a villain in the dock.

Some interpret Milosevic's death in a cell as a metaphor for justice, but international criminal law does not work that way: Milosevic died an alleged war criminal, not a proven one. In our haste to reaffirm international justice after his death, let's remember what his life shows about the limits of that project. What can tribunals do, and what can't they? The answer is mixed. Courts can produce individual justice, but not necessarily international justice. Their ability to deter war, define truth, or promote reconciliation is unproven.

Yet the international criminal law paradigm continues to dominate our thinking. Milosevic was no strategist; he only wanted another day in power, and another. What do we want? So far: Commitment to one-size-fits-all justice and an end to politicking, but not a strategy for using law as one tool among many in responding to war.

A comprehensive strategy would incorporate amnesties (including a UN Security Council pardon power), truth commissions, exile for entrenched leaders and lustration for mid-level officials, and civil compensation. It would prioritize domestic processes - and have the courage not to insist on trials in countries that aren't ready.

And it would recognize that war is still the best way to combat war crimes: The energy expended on tribunals might be better invested in building consensus on robust, timely intervention when crimes are being committed rather than seeking punishment afterward.

Most of all, international law needs a dose of humility. We should reexamine the attractive but empirically dubious shibboleth "no peace without justice." Peace without justice happens all the time. Justice is a rare bird, and agreement on what justice means is rarer still. But peace and stability - without which justice seldom flourishes - are within the reach of a flexible response that upholds law yet does not abhor alternatives.

• Timothy Waters was a member of the team at the International Criminal Tribunal for the Former Yugoslavia that drafted the original indictment of Milosevic. He currently teaches international criminal law at the University of Mississippi.

UN Human Rights Council - what happened?

So, the General Assembly passed the compromise UN Human Rights Council "reform" - with four opposing votes - the United States, Israel, Palau, and the Marshall Islands voting against. The US then announced that it will support the new Council and continue funding per usual. Opinio Juris has a good roundup, here and here. Another good site for continuing information is UNWatch.org. I have put here stories from the WP, NYT, and an editorial from the WSJ.

My views continue to be those expressed in the opinion piece by George Mitchell and Newt Gingrich in the International Herald Tribune, in yesterday's post.

The Washington Post's Colum Lynch has a page one story on it in today's paper, March 16, 2006, here. Excerpts:

***
U.N. Votes To Replace Rights Panel
U.S. Has Objections But Will Aid Agency

By Colum Lynch
Washington Post Staff Writer
Thursday, March 16, 2006; A01

UNITED NATIONS, March 15 -- The U.N. General Assembly voted overwhelmingly Wednesday to create a human rights agency to monitor and expose abuses by governments, replacing a discredited body despite objections by the United States that nations with a history of human rights violations could still join the new panel.

The assembly's action will effectively abolish the United Nations' main human rights body, which has been derided in recent years for allowing some of the world's worst rights abusers to participate. It will be replaced in June by a new Human Rights Council, which advocates and most nations hope will exclude brutal dictatorships and do a better job of confronting governments that abuse their own people.

The measure creating the 43-member rights body was passed by a vote of 170 to 4, with the United States, Israel, Palau and the Marshall Islands voting against it. Belarus, Iran and Venezuela abstained, citing a concern that the council would become a tool for powerful Western countries to punish poor nations.

In a shift in U.S. policy, the Bush administration agreed Wednesday to help fund the rights council and has begun an internal discussion over possible U.S. membership. John R. Bolton, the U.S. ambassador to the United Nations and a staunch critic of the new council, said that though Washington opposed it, the United States will pledge support for making it "as strong and effective as it can be."

"We remain committed to support the U.N.'s historic mission to promote and protect the basic human rights of all the world's citizens," Bolton said. "The real test will be the quality of membership that emerges on this council and whether it takes effective action to address serious human rights abuse cases like Sudan, Cuba, Iran, Zimbabwe, Belarus and Burma."
The debate over the new human rights agency had put the United States in a difficult position. Under President Bush, Washington has been urging a reform of U.N. management of a variety of programs. But in this case, it opposed the rules drawn up to determine which nations could serve on the panel and cast a vote.

Wednesday's action follows a nearly year-long campaign by U.N. Secretary General Kofi Annan to create a human rights organization to replace the Geneva-based Commission on Human Rights. Annan said the 60-year-old agency, which drafted the Universal Declaration of Human Rights, currently suffers from "declining credibility and professionalism" and has cast "a shadow on the reputation of the United Nations system as a whole."

Members of the current human rights panel include Zimbabwe, Sudan, Cuba, China and Saudi Arabia, all of which have long records of human rights violations. Rights abusers such as China have used their positions on the commission to block criticism of their human rights records.
Annan had proposed setting high membership standards, including a requirement that council members obtain votes from at least two-thirds of the U.N. membership to join. But he concluded that a compromise proposal, which required only an absolute majority of 96 votes for membership, was still worth supporting.

General Assembly President Jan Eliasson, who led negotiations on the council, said the resolution adopted Wednesday would strengthen the U.N. capacity to confront rights abusers and make it more difficult for them to join. "The true test of the council's credibility will be the use that member states make of it," Annan said.

Bolton said Wednesday that Washington opposed the council for several reasons, but he highlighted the proponents' failure to secure the two-thirds vote requirement for membership. "It would have helped to prevent the election of countries that only seek to undermine the new body from within," he said.

But other delegates and human rights advocates questioned the U.S. commitment to creating a strong human rights panel, saying that Bolton rarely participated in the months of negotiations aimed at forging a new council. When he did weigh in -- for instance, by asserting in December that the five veto-wielding members of the U.N. Security Council should have permanent seats on the rights panel -- he complicated the deliberations, according to diplomats and rights advocates.

In a thinly veiled attack on the United States, Peter Maurer, the Swiss ambassador, lashed out at those "who want to make us believe that they are the only ones fighting for an ambitious human rights machinery," saying: "All too often, too high-minded ambitions are coverups for less noble ambitions and are aimed not at improving the United Nations but at weakening it."
Senior U.N. officials and delegates said Bolton barely highlighted the importance of the two-thirds membership vote at a critical meeting this month with Eliasson, leading the General Assembly president to believe that the United States could accept the compromise. Eliasson declined to discuss the conversation.

"I really feel that this is a matter I can't go into, but you're right that the emphasis was not so strongly on two-thirds," he said.

Bolton insisted that he forcefully raised the issue with Eliasson and said suggestions that the United States was not fully engaged in the negotiations are "ridiculous."

Human Rights Watch, Amnesty International and other human rights groups praised the General Assembly's decision. But they cautioned that U.N. members will have to ensure that governments with poor rights records do not win election to the new council.

***
And here is Warren Hoge in the New York Times, March 16, 2006:

March 16, 2006
New York Times

As U.S. Dissents, U.N. Approves a New Council on Rights Abuse

By WARREN HOGE

UNITED NATIONS, March 15 — With the United States in virtually lone opposition, the United Nations overwhelmingly approved a new Human Rights Council on Wednesday to replace the widely discredited Human Rights Commission.

The vote in the General Assembly was 170 to 4 with 3 abstentions. Joining the United States were Israel, the Marshall Islands and Palau. Belarus, Iran and Venezuela abstained.

Secretary General Kofi Annan, who first proposed the council a year ago, hailed the decision, saying, "This gives the United Nations the chance — a much needed chance — to make a new beginning in its work for human rights around the world."

But John R. Bolton, the United States ambassador, said the proposed council was "not sufficiently improved" over the commission, which has been faulted for permitting notorious rights abusers to join.

"We must not let the victims of human rights abuses throughout the world think that U.N. member states were willing to settle for 'good enough,' " Mr. Bolton said in a statement after the vote. "We must not let history remember us as the architects of a council that was a 'compromise' and merely 'the best we could do' rather than one that ensured doing 'all we could do' to promote human rights."

He said the United States would "work cooperatively" to strengthen the council, but he did not say whether the United States would be a candidate to serve on it.

That decision, a critical consideration for the panel's future, is still "under discussion," said a senior administration official in Washington who requested anonymity because he was discussing unsettled policy.

The resolution calls for the election of new council members on May 9 and a first meeting of the council on June 19. The commission, which is beginning its annual session in Geneva next week, will be abolished on June 16.

The council will have 47 members, as opposed to the commission's 53; the means to make timely interventions in crises; and a year-round presence, with three meetings a year at its Geneva base lasting a total of at least 10 weeks. The commission has traditionally met for six weeks, once a year.

Under terms meant to restrict rights abusers from membership, candidates for the council will be voted on individually rather than as a regional group, their rights records will be subject to mandatory periodic review and countries found guilty of abuses can be suspended.

But the final text had a weakened version of the crucial membership restriction in Mr. Annan's original plan, which required new members to be elected by two-thirds of those voting. Instead, council members will be elected by an absolute majority of member states, meaning 96 votes.

Major rights organizations and a number of American allies in the United Nations — which had all lobbied Washington to reconsider its opposition — argued that the terms were far better than existing ones and would keep major abusers off the council.

***
And then the Wall Street Journal editorial page:


REVIEW & OUTLOOK
Second Time as Farce

Wall Street Journal editorial
March 16, 2006; Page A12

So the United Nations votes 170-4 to create a new Human Rights Council, and the U.S. -- one of four dissenters with Israel, Palau and the Marshall Islands -- now promises to support the Council and pony up 22% of its operating expenses.

Back when the Bush Administration knew what it was doing, it chose to invest political capital in a quest for U.N. reform, pushing for Paul Volcker's Oil for Food probe and appointing bulldog diplomat John Bolton as U.S. Ambassador. Yet when Mr. Volcker's final report demonstrated pervasive corruption and incompetence at the highest levels, the Administration failed to demand Kofi Annan's resignation, apparently believing it wasn't worth the effort and that a politically beholden Secretary General could help advance U.S. aims.

Well, for months Mr. Bolton has been making the case that the proposed Human Rights Council failed to remedy the basic problems that had made its predecessor, the Human Rights Commission, the most visible emblem of U.N. fecklessness and hypocrisy. Among its problems: no formal bar to miscreant countries and an unhappy ratio of dictatorships to democracies. This should have been the easiest reform for the U.N. to get right.

Instead, the Administration has borrowed from John Kerry's playbook, voting against the Council before voting for it. "We have very high standards for human rights at the United Nations," Undersecretary of State R. Nicholas Burns told the Washington Post by way of explaining the U.S. "no" vote. He then added that "We also want to see the U.N. succeed, and so we hope the Human Rights Council can be strengthened over time so that they can deal effectively with real world problems such as Darfur and Burma."

Good luck with that, Mr. Burns. The Oil for Food scandal gave the U.N. a once-in-a-decade opportunity to adopt meaningful reforms, which is now being squandered. But instead of exacting a meaningful price for those failures, the U.S. is still agreeing to foot the bill for an outfit that actually gives the likes of Venezuela and Saudi Arabia a voice on human rights. So we are left with the political baggage of a costly diplomatic fight and a purely symbolic losing vote -- and a million-dollar U.S. taxpayer price tag for a morally bankrupt Council.

URL for this article:http://online.wsj.com/article/SB114248326041599856.html

UN Human Rights Commission "reform" - or rather, non-reform

Tomorrow the General Assembly is set to vote on reform of the infamous UN Human Rights Commission - to replace it with a "new" Human Rights Council. Jan Eliasson, president of the General Assembly, has worked out a compromise reform that would supposedly reform the Commission. Unfortunately, for reasons laid out below in the International Herald Tribune opinion piece by George Mitchell, Democratic former Senate Majority Leader, and Newt Gingrich, Republican former House Speaker, the compromise is fatally compromised from the very start.

This has not stopped much of the world from lambasting the Bush administration for being the sole holdout in the world against the compromise so-called reform. Kevin Jon Heller, at Opinio Juris blog, lays out the case against the United States, here, which I quote in full below:

***
US Alone in Opposing New Human Rights Council
by Kevin Jon Heller, Opinio Juris

According to IPS, the United States is now completely alone in opposing the U.N. proposal to create a new Human Rights Council. A significant majority of the U.N.'s 191 member states have come out in favor of the proposal, including the 25-member European Union and the 114-member Non-Aligned Movement (NAM) of developing nations. The proposal is also supported by nearly all of the major human-rights groups, including Amnesty International, Human Rights Watch, the United Nations Foundation, Citizens for Global Solutions, Human Rights First, International Commission of Jurists, ActionAid International, and the World Organisation Against Torture. Together, the groups have released the following statement:

We believe that the draft resolution to establish a Human Rights Council presented by the President of the General Assembly is a sound basis to strengthen the UN's human rights machinery. World leaders pledged to do this when they met at the September 2005 World Summit. We call on all states to join the consensus that has emerged in countries from all regions of the world and to adopt the draft resolution. The proposed Human Rights Council will be better equipped than the existing Commission on Human Rights to address urgent, serious and long-running human rights situations wherever they occur. It will hold more frequent meetings throughout the year instead of only one. More competitive election procedures will encourage a membership that is more dedicated to the protection of human rights. Instead of slates being adopted by acclamation, members must be elected individually and a higher threshold of votes applies - at least 96 individual votes out of 191 members. A country’s human rights record will be taken into account by those voting and those committing gross violations of human rights can be suspended from the body. All members must fully cooperate with the Council and they will undergo a review of their human rights record through a new universal review system that will apply to all countries. This is an historic opportunity to create a better human rights protection system within the United Nations.

The key U.S. demand is a 2/3 majority requirement for election to the new Council, which would make it difficult for "habitual human rights abusers" such as Sudan, Zimbabwe, and Burma to be elected. Jan Eliasson, the president of the General Assembly, lobbied for such a requirement -- without much help from John Bolton, who missed 29 out of 30 negotation sessions and made numerous other diplomatic missteps, as I discussed here -- but the majority requirement was the best he could do.

There is no question that the new HRC would be better off with a 2/3 requirement. But the majority requirement is a dramatic improvement over the slate system used by the Human Rights Commission, especially given that the voting will be by secret ballot -- making it easier for states to cast votes against human-rights offenders they cannot politically or economically afford to oppose publicly.

Bolton's unwavering opposition to the HRC is also -- and predictably -- turning into a public-relations disaster for the U.S., leading many states to conclude that the real reason the U.S. opposes the HRC is that it is fears becoming one of the HRC's primary targets:

"We feel that the United States is in reality trying to weaken the U.N. human rights machinery, not strengthening it, perhaps for selfish reasons," says one Third World diplomat. With rising criticism of U.S. human rights abuses, particularly in the Abu Ghraib prison in Baghdad, the Bagram airbase in Afghanistan and the Guantanamo Bay detention facility in Cuba, Washington is fearful of the fact that the torture and mistreatment of prisoners by U.S. soldiers will be high on the agenda of the new Human Rights Council. "I can see no other reason why Washington wants to kill the proposal," he added.

***
For my own part, I find it puzzling to assert that the US demanding a 2/3 vote and a smaller council would somehow serve its "selfish" interests. As I noted in a comment on Opinio Juris:

One thing I don't understand - I'm not being coy, I really would like someone to explain to me - how it is that the US holding out for a 2/3 vote would accord with the idea, mentioned by a Third World diplomat above, that the US fears becoming a primary target. If the HRC required a 2/3 vote, wouldn't it be that much easier for a smaller number of states to keep the US off? If the US wanted to protect itself from attacks on its own human rights record, why would it not support exactly what the leading human rights abusers want - as large a HRC as possible with as low a required vote as possible - eg, 47 members (reduced from what, 50-something, and a 50% voting requirement? I have heard this argument made repeatedly in dark, conspiratorial tones from UN diplomats, the NGO community, human rights types, and still have not heard anyone articulate how exactly the US holding out for a smaller council and a 2/3 vote serves to protect the US from attacks on its record. Maybe I just don't get something everyone else finds obvious - I mean that seriously - but although the US may be holding out for something unachievable, how does its position protect it from attacks on its record?

I also have to say that I find it remarkable, to say the least, that the leading human rights organizations and NGOs would come out in favor of so obviously inadequate a proposal as that put forth by Eliasson. It may very well have been the best that Eliasson could do, but then, he's a diplomat who must operate in compromises - but in that case, the proper response from a principled organization would be to say, sorry, this is so inadequate that it merely duplicates what went on before, and we're not signing on.

What the letter from the NGOs quoted above mostly indicates is the degree to which these organizations have abandoned principle in favor of being "players," in which (a) it is not okay to reject something that has been arranged by parties as respectable as Eliasson and agreed to by the good guys and (b) it is not okay to join the United States government, at least under Bush, in rejecting something that one's natural allies, among the "players," have all agreed to. The episode reinforces my view that the human rights organizations have generally opted for "internationalism" and the pull of being players among international organizations over "universal" principles. They engage in the charade that "international" is the same as "universal," but they're not - and less so than before tomorrow's sorry vote.

Mitchell and Gingrich co-chaired a US congressionally funded task force on UN reform organized through the United States Institute of Peace. I was one of the experts for the task force. It reached entirely bipartisan, mainstream conclusions, including basic principles about reform of the Human Rights Commission that include all the points that the Bush administration is holding out for. Its conclusions were widely praised - as I recall, the Economist editorialized that if those basic points about the Commission were not enacted, well, better to close up shop at the Commission than continue to live a lie. Many others followed suit.

That seemed fairly obvious at the time. Not any more and, most remarkably, not among those for whom human rights principles are supposed to - well, not objects of negotiation and compromise but, you know ... principles. Let Eliasson do the compromises - human rights organizations should be holding to the basic markers. Which, naturally, they always do when going after the US and the Bush administration - but it's a different story, apparently, when maintaining good relations with those with whom they maintain a vital relationship of mutual backscratching.

More precisely, the relationship between so-called global civil society - the NGOs - and international organizations such as the UN is one of mutual legitimation. International organizations stand in desperate need of legitimacy - since they have no democratic legitimacy, they seek it from organizations such as NGOs that purport to offer it to them as stand-ins for the "peoples of the world." I don't recall voting for NGOs to represent me as a citizen of the world and neither do you, but that's their claim - they represent the peoples of the planet. In turn, the NGOs gain from international organizations their own form of legitimacy - the legitimacy of being the world's representatives. It's a cozy relationship of mutual legitimation - not just cozy, but a completely closed circle.

So Kofi Annan tells assemblies of NGO activist that they are the constituencies that, unlike mere governments, represent people in the UN system. What NGO can resist that siren song? And in return, they used to function as a kind of loyal opposition - opposing some parts of the UN program while affirming the basic legitimacy of the UN as the world's system of global governance over the "mere" and parochial claims of nation-states. What we see in this move to be a player in accommodating compromises of such an astonishing kind on something as basic as human rights is to drop the idea of even being an opposition within the basic structure of legitimacy, and just ... suck up.

But Mitchell and Gingrich have come back with the position that human rights NGOs not in thrall to their own "player" roles should have been saying, in the IHT, here. It is vitally important and I reproduce it in whole:

***
Rethinking UN reform

Newt Gingrich and George Mitchell
International Herald Tribune
TUESDAY, MARCH 14, 2006

We have worked together during the past year to promote reform of the United Nations in the common belief that an effective and capable organization could be a force for achieving Eleanor Roosevelt's hope that the United Nations would be "a guiding beacon along the way to the achievement of human rights and fundamental freedoms throughout the world."

The congressionally mandated task force we jointly led recommended abolishing the discredited UN Human Rights Commission in favor of a new Human Rights Council, ideally composed of democracies, recognizing that democratic governments offer the best protection of human rights.

We are gratified that the UN General Assembly recently proposed abolishing the commission, and is now taking the first steps to define its replacement. But we cannot embrace the design of the new council that has been put forward.

In our report to Congress, we concluded that a major component of UN reform must be repair of the UN human rights system. We found that the Human Rights Commission had become so distorted that "countries with appalling, even monstrous, human rights records - Sudan, Syria, Zimbabwe, Libya, and Cuba, to name a few - could all be seated there." We believed that the situation had deteriorated to the point that the commission was failing at its primary task: monitoring, promoting, and enforcing human rights.

But the plan offered by the General Assembly does not do enough to redress these weaknesses, and is inadequate for several reasons.

First, it does not provide enforceable standards for membership. We recognize that in an international institution like the UN - which has no democratic preconditions for membership - there will always be limits to America's ability to render its infrastructure and decisions compatible with American values and interests. Nevertheless our task force recognized the fundamental importance of denying membership in the UN body charged with the protection of human rights to any states under UN sanctions and/or states unwilling to accept monitoring missions. We stand by our task force recommendation.

Second, the proposed council will be dominated by regional groupings. The plan emphasizes "equitable geographic distribution," apportioning the 47 seats among the various regional groups, which shifts the balance of membership away from Western democracies.

Our task force made it clear that the United States should oppose any efforts by regional groupings to nominate members of the council solely on the basis of rotation, which would be likely to sacrifice the fundamental values of human rights to regional consensus and political solidarity. We also advocated a smaller council than the 53-member commission. We stand by our recommendations: A new council should be smaller still.

Third, the plan provides that election to the council will be by a simple majority vote of the General Assembly through a secret ballot. This is a major step backward from Secretary General Kofi Annan's original proposal - supported by the United States - that called for a two-thirds majority vote for membership. This weakness of the plan, more than any other aspect, would ensure that the new council would not be sufficiently different from the commission.

Finally, the plan requires a two-thirds vote for removal of members, making it impractical to remove human rights violators from the council. Considering that 50 percent of the General Assembly could not even agree that Sudan was guilty of human rights violations in November, this provision holds little hope that human rights violators will be removed from the council should they get on. Instead of erecting a high bar for membership, the current plan would erect one for removal. This is exactly backwards.

Eleanor Roosevelt said "the field of human rights is not one in which compromises on fundamental principles are possible." Unfortunately, the proposed compromise put forward for the Human Rights Council does not adequately address the core institutional problem with the current commission - the requirement to keep human rights violators off the council, while keeping human rights defenders on.We call on the United States to mount a major diplomatic effort at the United Nations and in the capitals of the world's other democracies, to press for a strong and effective Human Rights Council that lives up to the UN's founding principles.

Newt Gingrich is a former speaker of the U.S. House of Representatives and George Mitchell is a former U.S. Senate majority leader.

***
Finally, here is the Wall Street Journal's editorial on the subject:


REVIEW & OUTLOOK
Wall Street Journal

Council of Despair

March 14, 2006;
Page A18

The United Nations General Assembly is scheduled to vote tomorrow to establish the Human Rights Council, which is intended to replace its discredited Human Rights Commission. Amnesty International is for it, as is Secretary General Kofi Annan, Jimmy Carter, the European Union and most of the U.N.'s member states. So it all but goes without saying that the Council -- at least as it is currently conceived -- is a moral disaster waiting to happen.

We've previously argued that among the proposed Council's defects is its size. The existing Commission has 53 member states, which even Mr. Annan conceded was too many for any human-rights body to be effective. U.N. sages proposed bringing that number down by a whopping eight seats. But even that proved to be too bold, and now the U.N. proposes a Council of 47 seats. Think of it as the concession the U.N. made for Belarus and Egypt when those paragons of liberal democracy next take their seats on the Council.

Then there is how member states would be selected. Again, the initial proposal for the Council set the bar fairly high, requiring that countries be elected by two-thirds of the General Assembly. This would have dissuaded shady regimes from standing for membership, while allowing the U.S. and its allies to block those that did. But the two-thirds requirement has been dropped to a simple majority. Worse, seats are distributed by a formula that guarantees Africa, Asia and the Middle East -- the world's least democratic areas -- 26 Council seats, an absolute majority.

By contrast, the U.S. and the 27 other members of the so-called West European and Others Group would have the right to no more than seven seats. So get ready for the U.S. to duke it out with France, Malta and Luxembourg for a place at the table. Council members would also be forbidden from serving more than two consecutive three-year terms, so the U.S. would not have permanent representation. In this respect, the Council is even worse for American interests than the Commission it would replace.

Proponents point out that, unlike the Commission, the new body could suspend members who committed human-rights abuses. The good news here is that at least Israel would be safe from this kind of sanction -- but only because Israel will almost certainly never be elected to the Council. But the idea that any state short of Cambodia under Pol Pot would actually be booted from the Council is a faith-based proposition given U.N. history.

So far, the Bush Administration has stood firm in opposing the current version of the Council, at least until further changes are negotiated. One American proposal would be to permanently bar from the Council those countries that are under legally actionable, "Chapter VII" sanctions. Too tough, say critics, who want the U.S. to sign first and seek "future improvement" later. Among those future improvements: "Council members must uphold the highest standards in the promotion and protection of human rights," according to former U.S. Senator Tim Wirth of the United Nations Foundation. But the whole point of replacing the Commission with the Council was to create that kind of baseline first.

As it is, there seems to be little chance that the U.S. will be able to prevent this Council from coming into existence: Unlike the Security Council, America has no veto in the General Assembly. But the U.S. does provide 22% of the U.N.'s assessed contributions (from which the Commission is funded) as well as more than $10 million in voluntary contributions for the U.N.'s human-rights bodies, which is twice as much as the next largest donor. Senator Norm Coleman (R., Minnesota) has proposed legislation that would "authorize the President to withhold up to 50% of the U.S. contributions to the U.N. if the President determines that . . . the U.N. is not making sufficient progress to implement [reform]."

That is a sound suggestion. In the meantime, the U.S. can do the world a favor by voting against this ill-conceived Council, and by refusing to participate until the very modest demands the Administration has made are met.