Ronald Aronson on the Camus-Sartre quarrel

(Update, June 22, 2005: Ronald Aronson has a lovely opinion piece on the occasion of Sartre's birthday in today's International Herald Tribune explaining why Sartre continues to be important, despite irritating and annoying (many of) us (including me). Aronson's book really is outstanding.)

Late nights I have been reading Ronald Aronson's splendid new book, Camus & Sartre: The Story of a Friendship and the Quarrel That Ended It (Chicago 2004). It is a very fine book that manages to be both scholarly and lay-user friendly at once. I first read Camus' The Fall in junior high school - I did not understand it as a novel, I wasn't sure what it was, but I was drawn to the cadence of Camus' language, the sheer French brilliance of the phrases, even in translation - and I've returned to it many times. What I did not realize, until reading Aronson, was the extent to which it was a roman-a-clef for the breakup with Sartre. Aronson has also caused me to pick up again The Rebel - a book that I have read repeatedly over the decades. The whole quarrel between Camus and Sartre is, for me at least, one of those exemplary episodes that show that sometimes, anyway, it is the less well-educated, less philosophically brilliant, less sophisticated person who instinctively chooses better. What, in morality and politics, was Sartre, alas, ever right about? Or, if right, so very, very late? Camus was certainly not always right, but he was a man of greater moral decency and right much more of the time. When in high school, I thought Camus was right about his "fastidious assassins," but I now think he was not just wrong, he hopelessly romanticized the moral equation by saying that assassination is made better if you die too - he is way too close, on that matter, to justifying suicide bombing. But on the whole, The Rebel is a profoundly decent book. True, it's not philosophically coherent; on the other hand, it is decent. I want to pick up an idea, though, in a future post, about Camus' "provisional morality," follow it through with his great friend Rene Char, about whom I've blogged here, and curiously, with Lincoln of the Second Inaugural Address. But not at this moment.

(Update, Friday, January 7, 2005: See the excellent, erudite review by Algis Valiunas in the January 2005 Commentary.)

(Update, Sunday, January 16, 2005: My thanks to reader Andy for pointing out that chapter one excerpt of the book is available as a teaser from the publisher, here.)

The Gonazales hearings and Senator Schumer's question about revising the Geneva Conventions

I have caught just bits and pieces of the Gonzales confirmation hearings for Attorney General today. In general, he does not seem to have faced especially bitter attack - on the contrary, I thought the Democrats appeared to be pulling their punches, at least in the bits I heard. One bit that caught my attention was a question from Senator Schumer, asking Judge Gonzales whether there had been discussion within the Administration concerning the possibility of revising the Geneva Conventions to account for the different circumstances of the war on terror. Judge Gonzales hedged, saying there had perhaps been some general discussions as to the changing circumstances of conflict, but nothing specific. Senator Schumer then urged him to seek advice from Congress in any such move rather than simply submitting a treaty for advice and consent.

Revising the Geneva Conventions? No one, inside or outside the Administration, liberal or conservative, is talking about literally revising the 1949 Geneva Conventions - what they mean is supplementing them in some fashion, perhaps even superceding parts of them, by means of additional agreements, protocols, treaties. A number of academic meetings have taken place over the past two years or so, exploring the possibility. The meetings have had a variety of motives and sponsors - the common denominator, so far as I am aware, having participated in several, has always been a concern fundamentally about US behavior and ways of constraining it. I am not aware of any meeting in which the fundamental concern has been to make it easier for the US to conduct a war on terror. These conversations always take place, in the abstract, from the point of view of regulating everyone's conduct - but since there is only one party in the war on terror - terror being the strategy that it is - who might conceivably agree to be regulated, the United States, the practical import is that these are meetings about constraining US behavior.

For this reason - believing as I do that the United States should not, at this point, be subjecting itself to more international legal restraints, but should be establishing its own standards - I have taken the position that generally the United States government should not participate, nor encourage such exercises. It should recognize that, just as happened with the International Criminal Court negotiations, the US tries and tries and tries to be a team player, only to find out that the team consists of "it" and "them" and that the only practical function of the negotiations is to constrain US action. Eventually it all ends in tears, with many recriminations against the US, because eventually the US hits a wall - some principle, such as fundamental sovereignty, that no form of negotiation, however artful or papered over, can make go away. The wall is a matter of principle, not something that can be finessed by a form of words. That being the case, it would have been better had the US not given any legitimacy to the proceedings in the first place, and spelled out exactly why.

This is quite true in regard to any possible multilateral revision of the laws of war. A multilateral process would result only in the attempt by the Lilliputians to tie down Gulliver - and in the peculiar way consistent with the security imbalance between the international legalist states of Europe and the United States - states that have no fundamental security interests, because of the US security guarantee, arguing that the US should tie its hands in security matters to the satisfaction of European consciences. There is nothing in this but trouble for the United States.

Instead, the United States would be well advised to simply pursue its own vision of how the laws of war should be - asserting them publicly as law and declaring them to be the US understanding of the laws of war. It should use its power as the leading military power to create the conditions of customary international law by asserting its state practices as expressions of international law. It should, in effect, create legal facts on the ground.

To do that, however, requires that the US put forth its view of how the laws of war should reflect the realities of the war on terror not merely as an expression of US interests, security interests, but instead as a vision of the ideals of the law of armed conflict. At the center of this is not in fact US security, but instead a vision of the protection of civilians - which, at its core, terror threatens. The US can create long term international law, or at least protect its claim that it is within international law, only by asserting its policies as part of a larger moral vision of the laws of war. The US has almost entirely failed to do this, however, allowing its policies to be portrayed as nothing but mere realist interests. I have never understood this, frankly, why the US fails to announce a moral vision, since in all my experience of US government lawyers in these areas, it is clear that they are fundamentally motivated by a moral vision and not by interests - the sad fact, after all, is that the Geneva Conventions have been seriously violated with respect to US soldiers in every post-WWII conflict. It is not because the Geneva Conventions have done so well in protecting US soldiers that the United States remains committed to them - reciprocity was lost a long time ago - but because the US as a political community believes their core ideas are fundamentally right, which is a moral vision, rather than an assertion of interests. And the US government should be willing to say so.

(I discuss these ideas in a short academic paper, The role of the United States military lawyer in projecting a vision of the laws of war, 4 Chicago Journal of International Law 445 (Fall 2003), available here from SSRN.)

Does it matter who you are interrogating? The Gonzales hearings

(Update, Friday, January 7, 2004: Please read this in conjunction with Friday's post, The Wall Street Editorial Board Report, here.)

One thing that is missing in the whole torture-interrogation debate is the question of who you are interrogating. Can you use a different level of interrogation on Zarqawi, for example - knowing it is Zarqawi - than you could on someone who might indeed turn out to be the peasant shepherd? In my view, the answer must plainly be yes.

This would, however, require a regime that assigned different levels of possible roughness of interrogation - while remaining above an agreed-upon standard of torture [i.e., not committing torture, although we would have to agree on what specific practices constituted torture] - depending upon what is known about and individual's level of involvement in terrorism. That, in turn, would really require a separate legal and intelligence regime for dealing with terrorists. Many countries have exactly such laws, and they are found extensively in Europe. I have reluctantly come to believe that the United States should enact such a regime for dealing with non-US citizens believed involved with terrorism. For the same reasons that many European states have enacted such special regimes, I believe that the United States needs such a special regime as well - although, among other limitations, I would confine it to non-US citizens. One finding in such a system would be probable level of involvement, which would fall within a protocol for acceptable levels of pressure in interrogation.

First and foremost, however, I think the United States needs a thorough public debate on the issue - it cannot languish buried within the Justice Department, intelligence community, Department of Defense, and so on. Those who must deal with these questions with real detainees must have guidance, so that it is both clear what they may do and what it is that crosses the line - otherwise they will tempted to do whatever they feel like or, alternatively, do nothing for fear of prosecution. It is entirely insufficient simply to refer to the Torture Convention or its homologous US legislation; the phrases provide certain standards, but that cannot substitute for judgments about particular, concrete practices.

With respect to Gonzales - all said and done, I support his confirmation. This despite the fact that his office made very important mistakes, both procedurally and substantively.

Procedurally, it was wrong for the Administration to have cut its own professional military lawyers out of the loop, having a group of Administration lawyers without experience in the laws of war leafing through the Geneva Conventions for the first time. I understand the procedural problem - it only grows plainer and plainer the extent to which large swaths of the State Department and CIA believe that if they are not precisely a government unto themselves, they are at least a policy unto themselves - but there had never been an indication of that kind with respect to DOD. Those lawyers could have saved Gonzales's office much grief by ackowledging that of course the Geneva Conventions applied to detainees - but that under those Geneva Conventions, Al Qaeda and the Taliban are unprivileged combatants - and that detainees would receive the informal, unappealable three officer hearing per 1997 DOD regulations to determine their status, but nothing more.

Instead, it seems to me, Administration bet the farm with a far fetched theory of the so-called unitary power of the executive in matters of war - essentially telling the Supreme Court, when it came to it, that the Court had to butt out on Constitutional grounds, not on the grounds that the Administration's view of international law was legally defensible. When the constitutional law theory crashed and burned - it did not even garner support from Justice Scalia - it took down with it the quite defensible view of international law and applicability of the Geneva Conventions. This was one substantive mistake that is shared by the Justice Department and the White House counsel.

A second, of course, was the first torture memo. It held, quite obviously wrongly, that behavior was not torture if, in effect, the Executive said it had good reasons to do it. The Torture Convention does not tell how to draw lines about much interrogation behavior - one entirely obvious point, however, is that the purpose of even having a Torture Convention is to say that if behavior is torture, however, defined, then you can't do it even if you have good reasons to do it. This was an extraordinarily serious error; it has been reversed, of course, by the new memo just out in recent days.

That said, it is far too easy to forget the situation in the months after 9-11. It is also far too easy to forget that the first torture memo was a response to questions about a detainee whose identity was only too well known; no goatherd or shepherd, he. It is ever easy for civil liberties groups and human rights NGOs, with no responsibility for the common security and, indeed, scant regard for it, to shove all those issues to one side. In the name of protecting the human rights of someone whose status as a terrorist is entirely established, they cannot be shoved to one side, however, which is one reason I favor having a formal legal regime of terrorist status as essentially a state of exception (as is amply permitted in international law).

It also bears noting how we got into a situation in which standards and acceptable/unacceptable behavior were being defined for the first time. The evisceration of clandestine services and the more than clean hands policies from the 1970s forward left the United States in a position, first, in which it had no experience in dealing with interrogations, standards, procedures, limits, permissions, nothing. This is a fault arising from the desuetude of the past twenty years in intelligence matters - it is not a virtue to walk around in the easy times holding your hands high, Carter-like, and saying, they're clean, they're clean! if it means that in times when you must gather intelligence for the protection of lives in your political community, you have no idea how to do it, and are starting from scratch - including from moral scratch. You will make mistakes in doing that - serious moral mistakes - and the Administration did so. But its mistakes, as with so much of what led up to 9-11 and its aftermath, are at the door of previous administrations stretching back several decades.

If I were Gonzales, I would respond to charges of having authorized torture by retorting that there were no precedents, no best practices, no experience, nothing to go by in what should be considered acceptable and what not, because previous adminstrations and Congresses, naively believing that days requiring actionable intelligence for the protection of the American people ended with the Church hearings, had deliberately erased any institutional memory - either for what might permissibly be done and for what, at the level of actual practices, violate the law and morality. Following the admonitions of the ICRC, Human Rights Watch, or Amnesty International to do nothing that might go beyond the POW standard of "name, rank and serial number," was (is) not an option - but there was no institutional memory of what was - and if another major terrorist attack occurred, the watchdogs of human rights and civil liberties would - and will - shrug their shoulders and say, not our problem.

(One might usefully think back to the first experiences of Attorney General Janet Reno. A new, inexperienced Attorney General, tested three months into office by Waco. She ordered the use of CS gas against unprotected infants, deliberately targeting the infants, because, as she said to the press, they could not fit into the gas masks that the adults had. Her party fell over itself to excuse the first female attorney general; all those infant deaths conveniently forgotten. If that is the standard, then Gonzales's hearings should be quite short.)

(Update, Thursday, January 6, 2004: Corrected Gonzalez to Gonzales - this error due to my long time girlfriend from long ago, she was Gonzalez with a z. Also a couple of grammar corrections - verbs missing couple of places.)

Sudan information resources on the web

The best information resources on Sudan of which I'm aware on the web are found at the Rift Valley Institute (based out of Nairobi, London, and Sudan), here. Hundreds of links, well maintained, by people who know what they are talking about. It is also listed in my sidebar links.

Reader response to "What's the big deal about foreign law in US courts?"

I was pleased this morning to find a thoughtful response to my multipart post on the relevance of foreign law in US courts, here, posted by Arthur at Ad Populum. I'll try to find a moment today to respond, although I'm rushing out of here now. I should emphasize, though, that the multipart post is simply taken from early notes from a section of my Harvard Law Review review essay on Anne-Marie Slaughter's splendid new book, A New World Order (Princeton 2004). It is not at all a finished product - which is true of all the stuff I post; I am looking to work out ideas here in this blog, not present final products - I was looking for something to help frame the issues for debate for folks not already up on the topic. I hope it is helpful. But Arthur's response was insightful, and I'll look to make some comments on it later.

Meanwhile, just to restate: Justices Scalia and Breyer will hold a conversation at American University law school, Thursday, January 13, 4-5:30, on the topic of "The Relevance of Foreign Law in US Constitutional Adjudication," moderated by NYU's Norman Dorsen. Rsvp to attend in person to secle@wcl.american.edu and more details can be found at the events section of www.wcl.american.edu. The event will also be livestreamed on the web, and details can be found to link to the livestream on the main law school web page, www.wcl.american.edu.

(The event is co-sponsored by the law school and the US Association of Constitutional Law, which is the US affiliate of an international scholarly organization for comparative constitutional law - Michel Rosenfeld of Cardozo Law School is the president of the US affiliate, Norm Dorsen is the founding president, and I am the treasurer and a board member. It's a very cool organization and everyone should join, dues are a mere $35 a year.)

Mario Loyola on the UN

I have read, and am now rereading, the Secretary General's High Level Panel report on global security and UN reform rather closely, and one of these days I will write a review of it. I did discuss in a bit here. In the meantime, Mario Loyola, writing in the Weekly Standard, discusses both the report and the more general issue of UN reform. Read it here.

Within US media circles, new and mainstream, attention to the report has largely disappeared, under the likely accurate assumption that none of this kind of greybeard pontificating has much to do with anything. Within diplomatic, international community, international academic, and so on circles, however, it is still a live issue. I hear the report discussed as though it were, if not a papal bull, then a document of Genuine Importance. The tones are respectful, if not precisely hushed. Given the shakeup of Kofi Annan's senior management team - the most important is the elevation of the United Nations Development Programme's Mark Malloch Brown - the Secretary General, eager both to survive and salvage his last two years and his "legacy," will be looking to engage in some kind of reform. This document cannot help but be a key part of the discussion, if only because there is no more time for Annan to pull much else together. In my view - I've read the report twice now - it is and deserves to be a nonstarter for many, many reasons, but given its glow within the hermetically closed world of the UN and its acolyte NGOs and governments (and much of the US State Department), it has to be dealt with as it is.

The dancer upstairs

This upcoming week is the last week of class for my NCS course on ethics and war. Tod Lindberg, editor of the Hoover Institution's Policy Review, will be coming to speak on relations between Europe and the United States.

The other days, we will be watching a film on urban terrorism and guerrilla warfare, The dancer upstairs. It is from the British writer Nicholas Shakespeare's novel, directed by John Malkovitch. It tells the story of a lowly Peruvian lawyer turned police detective during the ferocious war of the Maoist Shining Path guerrillas and the Tupac Amaru urban guerrillas against the corrupt and authoritarian governments in Peru through the 198os. This detective, through sheer hard work and determination, succeeds in tracking down the leader of the Shining Path, Abimael Guzman (Ezekiel in the book and film). The film was, I think, underrated by critics and audiences - Malkovitch did an excellent job with a small budget, and the detective, played by Javier Bardem, is stunning in his lowkey realism. The film is better than the book; it has all the best aspects of a Graham Greene thriller - the moral passion play, a small man trapped in a bad situation, a doomed love.

I was in Peru, a Mormon missionary in the Andean highlands, in the late 1970s as Guzman, I now realize, was first emerging from the shadows and Shining Path was beginning its first armed atrocities in the mountains. I was in Huanuco at the time, which is on the eastern slope of the Andes, where the rivers lead down into the centers of the drug trade. Guzman was a prototypical Maoist revolutionary - in his dreams closest to the Khmer Rouge, really - a Peruvian provincial who managed to get some education in the heated philosophical circles in Paris, came away with an ideology of blood and redemption wrapped in a kind of marxist language. In his case, it was weirder than that - as a philosophy professor up in a remote university, no more than a high school at best, given the preparation of his pupils, he somehow latched onto Kant's Critique of Pure Reason as his revolutionary document. Can one imagine a less political work of philosophy? But it became the little red book for his followers - I remember photos that at the time I couldn't take seriously, of senderistas bearing aloft the Critique of Pure Reason in the street of some highland town, like the Bible in the procession into Mass. Many tens of thousands of dead later, it no longer seemed funny.

The dancer upstairs runs the Sendero Luminoso guerrillas together with the urban terrorist Tupac Amarus, who operated out of the utterly wretched Lima slums where I started my missionary work - Comas, for example, without water, power, much of anything. (And yet I was just back in Peru a year or so ago, and went to visit Comas - it has emerged as a solid working class, with sections of genuinely middle class, suburb of Lima.) In fact, they were not all one organization and operated in many ways very differently, reflecting differences in rural and urban terror. The key to all this in the novel and film is that the lawyer-turned-detective comes from an Indian town, speaks Quechua, and recognizes his home village in a sendero video.

The terrorist guerrillas, urban and rural, were finally smashed by a combination of a ruthless counterinsurgency campaign by the Peruvian security forces, including both police and military. It killed vast numbers of people. So did the guerrillas - the terrorist forces had a strong idea of purification, Khmer Rouge style, and alienated many Indians in the mountains with its policies cutting off the arms of mayors and other village leaders. It would be accurate to say that the authoritarian, sinister Fujimori government came in with a strong mandate to do whatever it took to defeat the rebels, and it did. But in this case, solid detective work tracked down the sendero leader, Guzman, and given the fanaticism around his person, it dealt a critical blow to sendero.

The aftermath has been difficult. The Fujimori government defeated the guerrilla terrorists; at the same time it demonstrated levels of authoritarianism and corruption that reached new lows even in Peru. (The most important writer on all of this - Sendero, Fujimori, the whole package - is the Peruvian journalist Gustavo Gorriti - as courageous as he is a good writer and reporter - parts of whose writing appeared in the New Republic and elsewhere - he is now back in Peru, after many years in exile.) It's not quite over, however. Guzman won a new trial following holdings by the Interamerican Court of Human Rights that his military trial in secret was procedurally improper - a new civilian trial sort of got started, in a bumbling way, amid indications that this was a fantastically bad idea, when one saw the reports of it being simply a meeting ground for old comrades who still harbor the same dreams of Khmer Rouge style power.

And then, of course, there is that cause celebre of the looney American and European left, Laurie Berenson, whose harboring of guerrillas bent on much death and destruction would have earned her a minimum life sentence in the United States, yet only got 15 or 20 in Peru, but who is regarded as a hero in less discerning quarters in the First World. Or at least, so the line goes, the process was unfair even if she was working with the guerrillas - she shouldn't have been tried by a military court. But she was retried by a civilian court, sentenced again, and finally, thank goodness, the Interamerican Court of Human Rights, no doubt seeing that it would have unleashed political chaos in Peru to have ruled otherwise (Berenson's American supporters often seem unaware that she is universally hated in Peru - the only folks who like her there are the remaining terrorists, dreaming of another chance at power), just a few weeks ago ruled that the civilian trial was procedurally adequate and did not overturn it. The chances of a sendero resurgence are far from negligible.

I care about this film for my class on war and ethics because it illustrates, first of all, the pressures of civil war, and the special pressures of urban terrorism. And then, the question of what the differences are between policework and soldiers' work. It does so in a setting in which the clinching move is made by solid detectivework, not by soldiers. And yet, even in Peru, the police were overwhelmed - there was no way to overcome sendero in the countryside without a complete mobilization of the Peruvian military, notwithstanding the extent of its abuses. It required a combination of police and military force to prevail.

But the differences between this experience, within a single society, within a single country, and the US global war on terrorism, are more instructive than the similarities. Of course, intelligence is the key - which is what the police really provided in the Peru of the film. But police work and even intelligence work is completely inadequate in a situation such the US war on terror - none of that matters, that is, if the terrorists have safe haven. If they have safe haven in third countries, then all the good intelligence and policework avails nothing. What makes the war on terror actual war is not the willingness to use weapons and soldiers of war against terrorists - occasionally even the Clinton administration was willing to do that. No, what makes it war is not the willingness to fight terrorists, but instead, the willingness to attack and bring down regimes and states that harbor terrorists. That is what the Clinton administration could never have fathomed, and the same would have been true with a Kerry administration.

Of course, the whole Clinton administration view that it was all policework, a matter of collecting evidence and arresting people and charging them in court - that is all nonsense in the war on terror. Of course one will need to do a lot of policework, arrest people, try them, and so on -especially in the big cities of Europe. Likewise one will have to gather vast amounts of intelligence. But it is only half a policy. Unfortunately, in the view of Kerry and his people, policework was the whole policy, the whole terror thing was nothing more than crime; fortunately, this was, pretty evidently, not the view of the American people in the election.

What's the big deal about foreign law in US courts? Part 4

But the deeper issue is flatly one of legitimacy and how the legitimacy of a constitution and constitutional order is conceived – when the citation of the foreign case as persuasive or any other kind of authority is real and not merely a rhetorical flourish. That is the sum of what Justice Scalia means when, attacking such "transjudicialism" in the context of the US constitutional system, he said that we “must not forget that it is the Constitution for the United States that we are expounding,” and not, by implication, some other constitution or some set of universal principles not inherent in the text of the Constitution itself.[9]

Scalia has not closed himself off to the possibility that someone or some institution outside the United States might have something relevant to say about an American situation. Far from it. He recognizes, for example, that cross border litigation by multinational entities will involve complex issues of comity and recognition of the views of foreign courts, as might the interpretation of treaties and other international documents that result from a multilateral process among sovereigns. It is, rather, that “comparative analysis [is] inappropriate to the task of interpreting a constitution, though it [is] of course quite appropriate to the task of writing one.”[10] Constitutions are different, insofar as they are the constitutive document of a political community.[11]

In that case, the issue is not so much the content of doctrine, but instead its provenance – the fact that it comes out of the processes of a particular political community, its constitutional and constitutive processes, is what matters, not its content. And, therefore, the fact that other communities might have different and better ways of approaching even the same issue is frankly not relevant, except as those different ways of doing things are able to ascend through the internal constitutional processes of a political community.

This matter of legitimacy and provenance is addressed in an article by Charles Fried, who brings to this debate not only the credentials of Harvard constitutional law professor but also former judge on the Massachusetts high court. Fried writes in reference to the debate between Justice Breyer and Justice Scalia:

“Justice Breyer’s remarks on comparative constitutional law, if they had appeared in a law review article, would have been quite unremarkable … As part of a judicial opinion, they were altogether remarkable. Why should that be? The reason is that if Justice Breyer’s insertion into the case of comparative constitutional law materials had gone unchallenged, it would have been a step towards legitimizing their use as points of departure in constitutional argumentation.”[12]

The moral heart of the debate is thus how one sees constitutionalism and the United States Constitution in particular. In many political systems, the constitution is a higher law, but not that much higher – the constitution is a document which is relatively easily amended, highly programmatic in its structure, and of neither the longevity nor legitimacy which the Constitution of the United States carries. It is thus easily comprehensible how, in such a system, legitimacy is not deeply offended by the importation of legal materials from outside the system. No deep social or political consensus is deeply offended; neither is democratic sensibility undermined. In fact, quite the opposite, as Yale Law School professor Jed Rubenfeld observes:

“For Europeans, the fundamental point of international law was to address the catastrophic problem of nationalism – to check national sovereignty, emphatically including national popular sovereignty. This remains the dominant European view today. The United Nations, the emerging European Union, and international law in general are expressly understood in Europe as … restraints on democracy, at least in the sense that they place increasing power in the hands of international actors (bureaucrats, technocrats, diplomats, and judges) at a considerable remove from popular politics and popular will.”[13]

Rubenfeld goes on to note that the US Constitution did “not speak in the language of universal rights.”[14] Instead, it“spoke in the language of popular sovereignty … American constitutional law was understood from the outset to be part of the project of popular self-government, as opposed to an external force checking that project. The American language of constitutional rights, properly understood, does not claim the authority of universal law. It claims, rather, the authority of democracy.”[15]

The US Constitution, on this view - and I daresay it is the view held by a sizable majority in in this country; it is their understanding of their Constitution - derives its legitimacy from popular sovereignty. It derives its legitimacy from the people who are governed thereby, and not because it is thought of as the enactment of some body of universal law given to them – much less given to them by elites who obtained it from on high and can therefore modify it as they receive further revelation.[16] If that be so – again, it seems to me certainly the ordinary understanding of Americans, even including most of our elites – then the invocation of foreign constitutional law, no matter how persuasive its content to a particular judge, is fundamentally at odds with democratic constitutional self government. The citizens of the United States have accepted democratic constitutional arrangements, particularly in the judicial rule of law, that are in many ways deeply counter-majoritarian, but they have done so on the basis of an argument from popular sovereignty. The formal acceptance of constitutional legal materials from outside that system is, to say the least, inconsistent with the traditional understanding of the compact between the governed and the government.

Yes, of course, such measures could gradually be introduced by judges whose constitutional philosophy is something other than democratic self-government; if Justice Breyer and four other justices were to do so over time, revolt would not ensue. But it would not be consistent with the legitimacy and democratic constitutionalism as the United States has understood it. And if the justices and the Federal courts generally were to move along that road in decisional ways, then it would seem to me quite appropriate, in response to that radical and undemocratic change in the US constitutional system, for the Congress to take the equally radical but entirely democratic step of stripping the Federal courts of certain matters by which to preserve the balance of democratic governance which the courts would have misguidedly and highhandedly disturbed.[17]

(Update: Go to notes, post 5, here.)

What's the big deal about foreign law in US courts? Part 3

There is, of course, the practical point that Justice Thomas pointed out in Knight v. Florida, that “were there any support [for defendant’s argument] in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”[7] It is not especially clear that the citation of foreign case law has any real content - whether done here, in the United States, or abroad. Hong Kong legal scholar Yash Ghai has observed, for example, that in Hong Kong “the approach to the use of foreign cases is not very consistent; they are invoked when the support the position preferred by the court; otherwise they are dismissed as irrelevant.”[8]

And not surprisingly, since these cases are being cited outside the context in which they actually function as law. Not only are they inserted into a judicial context in which they have no immediate provenance, no legitimacy outside the bare words quoted, they also are stripped out of the system in which they actually have provenance and legitimacy. They are bare words on paper: this is not the ultimate meaning of cases in judging, but that is what they must finally amount to, stripped out of one system and pressed onto another. It might just be so much window dressing, a rhetorical flourish - which is what Ghai observes it to be.

This rhetorical function is likely more useful to judges outside the United States in giving legitimacy to their decisions than to judges within the United States. If your constitutional tradition is not very long, or is colonially derivative, then appeal to case law outside your own tradition can carry rhetorical weight. Moreover, the stability and democratic credentials of the state of which a court is a branch also matters – something which seems not to have persuaded Justice Breyer in citing to the court in Zimbabwe. The high court of Zimbabwe has been not just an honorable court, but a heroic one. Yet there is something profoundly wrong in citing to a court (no matter how heroic a role it has played in the losing battle for human rights in that country) that, not of its own choosing, is formally a branch of a cruel and tyrannical state. Perhaps Justice Breyer believed that by citing it, he gave it legitimacy as against Robert Mugabe’s wicked regime. I would respectfully suggest it is Mugabe’s regime to which such action lends legitimacy and that Justice Breyer erred in doing so.

The value of rhetoric from outside your own constitutional system is especially a different matter, however, if one looks to two hundred years of continuous constitutional history. It is not American hubris but, rather, conscientiousness, that urges that judges confine themselves to a tradition that carries legitimacy in part because it defines – by confining them – the sources and limits of that legitimacy.

Yet a sense of personal and communal attachments, social relationships, loyalty and social obligation might still make it seem to a US Supreme Court justice both good and politic to cite to those outside one’s own court system. Within the sociology of the US Supreme Court, it is not very clear how much such personal and social factors play a role, and whether they have the power, over time, to turn rhetorical flourishes into actual jurisprudence. Let me be blunter: it seems to me that Justice Breyer, and to a lesser extent Justices O'Connor and Kennedy, want to be seen as peers by the highly civilized, urbane, distinguished Western Europeans sitting on the leading constitutional courts of Europe and the EU. Our justices want to be members of those intellectual clubs, so to speak (having already joined, also so to speak, all the relevant clubs in the US). One way you do that, within the professional circle of judging, is by returning them the favor of citing them. Within the peculiar intellectual activity of judging, it is one of the highest marks of esteem. I don't propose to prove that last statement; nonetheless, it appears to me that there really are issues of personal connection, socialization, peer relationships, at work here.

(Update: Go to post 4, here.)

What the big deal about foreign law in US courts? Part 2

Enthusiasts of Justice Breyer's approach want to encourage judges to see themselves as engaged in a common global enterprise of judging alongside other judges in other legal systems, in which they are collectively socialized to understand themselves as creating a genuinely global jurisprudence. It should be tempered, to be sure, by local and national concerns, culture, social considerations, and so on – yet it should see itself consciously as also part of a global order. Judges should, on this view, have many interactions with each other, and specifically many face to face meetings in order to develop their sense of identity and community as judges engaged in a common enterprise of creating a global jurisprudence. They should, again on this view, see themselves as engaged in “dialogue” with other courts around the world to help themselves as a community of judges find common ground and approaches to common legal problems – which, as noted earlier, are far from limited to such cross border matters as trade but which should include the death penalty and such “values” issues.

The invocation of "common" legal problems is frequent in this discourse, and it frequently involves a curious elision, in which two separate questions are run together. One is legal matters which are “common” because they cross borders, such as trade or air pollution – the same actual thing, circumstance, or event touches two jurisdictions. The other is a problem which, in any actual instance, exists in a single jurisdiction, but which might also occur in another jurisdiction – such as the death penalty. It is “common,” however, only because it might occur in either or both; it is not “common” because any actual instance involves both jurisdictions. Conflating those two meanings of “common” risks allowing the considerations and analysis of the first, which plainly does require some rules to settle jurisdictional questions if nothing else, to sweep in everything that might occur in some place and another place, such as the death penalty. The first requires some level of interaction; the second does not, but wrapping the two together can convey the impression that it does.

For those who are strongly in favor of such developments, the globalist socialization of judges is intended, over time, to develop genuinely global social and psychological and communal allegiances that will affect how judging is done. Justice Breyer has always been very cautious in his public remarks as to how far the practice is intended to go in affecting the outcomes of US cases - is it intended to be merely rhetorical or something more? But for those who do go farther - Slaughter is one, and I am drawing on her view - this globalist orientation is intended to mark out such practices as US First Amendment case law, among others, as “outliers” to global jurisprudence, and to make US judges conscious of where their jurisprudence is an outlier with respect to global legal trends. It is further intended to be a vehicle for using US courts to deploy their considerable powers in the interests of a globalist agenda. It is not intended merely as a means for judges to extend their knowledge and sophistication in some background sense. Slaughter, for example, intends that American judges cite foreign cases as “persuasive authority, and that where judges do in fact “cite foreign decisions as persuasive … constitutional cross-fertilization begin[] to evolve into something deeper, resembling an emerging global jurisprudence.”(A New World Order, p. 78) And this is to take place as “genuine transjudicial deliberation within a newly self-conscious transnational community.”(p. 78)

Well, we should ask, what on earth could be wrong with that? It is a picture of progress, after all, toward a globalized world that is also a more civilized world, one in which each legal system sees itself as deriving from a higher, universal system of values and law, shared globally, tempering each other by reference to what one's judicial peers worldwide are doing. Surely it is an attractive vision? Certainly it is a vision with many, many believers - good folks who firmly see this as a means to a more just and peaceful world. If it has a fault, on this view, the fault is not with the vision, but with its utopianism and the difficulty of its realization.

My own view is that the vision itself is mistaken; it is a misconceived view of political progress, and a mistaken view of political community, expressed as democratic sovereignty. The problem is not just one of execution. But why?

(Update: Go to post 3, here.)

Foreign law in US courts

Okay, so if I had known what I was doing I would have posted these pieces in reverse reverse order, so that they could be read straight down the page. Apologies. I broke this long comment into a series of shorter posts because I was having trouble with Blogger dropping my entire sidebar down to the bottom of the page. I'm going to try and get my links back onto the blog and then not mess around with it anymore.

If you are interested in this topic - and you should be! - you can find out about the Scalia-Breyer debate on this very topic at American University law school on Thursday, January 13, 4-5:30 at the events section of the school website, here. The event will be livestreamed, and you can also find out about that after January 10 at the same school homepage, here.

What's the big deal about foreign law in US courts? Part 1

(Update, Sunday, January 2, 2005: Due to formatting problems that caused my sidebar to drop to the bottom of the page, I am reposting this very long discussion of the issue of foreign law in US courts broken up into smaller chunks as separate posts. There was a thoughtful comment left by Anonymous that I hope will not disappear, but if it does I'll try to summarize it and respond.)

(This whole series of posts is in anticipation of the debate between Justices Scalia and Breyer on this topic, on Thursday, January 13, 4-5:30 pm est - at my law school, American University, DC, you can register to attend in person at the "Events" page at the law school website here, and after January 10, you can find information at the same law school website if you want to follow the livestream over the web.)

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(I am drawing here out of my notes for a forthcoming essay on liberal internationalism and democratic sovereignty, in the February 2004 Harvard Law Review. Apologies that the footnote numbers in the text don't seem to take you to the notes - they are found at the end of the last post in this series - or anyway, so I hope!)

A debate is slowly widening among members of the US Supreme Court over the question of whether, and to what extent, it is appropriate to cite and use as authority constitutional law cases from other legal systems, from legal systems outside the United States. Justice Breyer, in particular, has been doing so in some of his recent dissenting opinions, and Justices Scalia and Thomas have been sharply critical of his doing so. The cases in which such foreign cases have been offered have been, not insignificantly, so-called "values" cases - death penalty and gay rights cases, among others. It appears to some observers that some of the justices are seeking, in foreign jurisprudence, a source of legitimacy and authority not otherwise available through ordinary US constitutional jurisprudence and, especially in cases involving gut reactions about moral values rather than technicalities of law. This has occasioned both strong enthusiasm for the practice as well as sharp criticism.

My own view, as will come clear below, is that the whole practice is misconceived as to the nature of the US constitutional system and its democratic compact with its citizens. However, let us start by trying to give a summary of the positions (I am relying extensively here on Anne-Marie Slaughter's outstanding new book, A New World Order (Princeton 2004).)

On the one side, for example, is Justice Breyer, reviewing in his dissent in Knight v. Florida several foreign judicial precedents on the ground that, although such precedents were not binding, the willingness to “consider foreign judicial views in comparable cases is not surprising in a nation that from its birth has given a ‘decent respect to the opinions of mankind’.”[1] Breyer’s claim is put modestly in another dissent, this time in U.S. v. Printz; it is only that the experience of foreign courts may “cast an empirical light on the consequences of different solutions to a common legal problem.”[2] This view is seconded by Justice Ginsburg, arguing that many legal problems, such as discrimination and prejudice, are global, and that “experience in one nation or region may inspire or inform other nations or regions.”[3] Justice O’Connor has similarly remarked that although international law and the law of other nations are “rarely binding on our decisions in U.S. courts, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts.”[4] And quite recently Justice Kennedy took note of European jurisprudence in his opinion in Lawrence v. Texas.[5]

Of course, these citations may simply be thought platitudinous – Justice O’Connor was speaking, after all, as keynote speaker to the American Society of International Law; one would scarcely expect her to spit in her audience’s eye. Although Justice Scalia might have spoken his well-known mind on the place of foreign law in US courts, what Justice O’Connor said might be taken as little more than the pieties about international cooperation and comity that one expects important officials to express on such occasions, sincerely but without practical consequences for the content of US judicial process. Even Chief Justice Rehnquist has called upon all US judges to participate in judicial exchanges, on the ground that “it is important for judges and legal communities of different nations to exchange views, share information and learn to better understand one another and our legal systems.”[6] Yet there is little to indicate that the Chief Justice understands this as anything other than simply cultural interchange, if that – not an avenue into the US courts.

However, one might think that, beneath the platitudinous invocations of good will, cooperation, friendship, and such talk that has characterized interchanges across cultural and national line since diplomacy first came to be, in fact lies a deeper agenda which the surface words belie. Justice Breyer may soothingly say in his dissents that merely considering such views, in the same that one might read the law reviews, absorbing ideas and new concepts just as with other information, raises no novel question of precedent and legitimacy. Judges have long rhetorically bolstered their opinions with citations and quotations from ancient common law, Blackstone, Bartlett's book of quotations, the Bible, Shakespeare, poetry - why should this be any different? Given the trajectory of Justice Breyer's thought, however, one might at least wonder whether he understates his actual commitment, over time at least, to a much more robust role for foreign precedent in US courts that goes far beyond the merely rhetorical function of these other traditional forms of non-case-law citation.

(Update. Go to the continuation at post 2, here. Go to the continuation at post 3, here. Go to the continuation at post 4, here. Go to the continuation at post 5, here.)

(Please bear in mind that this is an informal discussion, drawn from notes, and I have still not had time to correct the citations in the footnotes, so do not write your term paper or next article relying in the cites.)

What's the big deal about foreign law in US courts? Part 5 (Endnotes)

(Update, Monday, January 3, 2005: I've noticed that some of these notes are screwed up and incomplete. The sources all exist, but the citations aren't completely right. Don't write your law review note or term paper based on them; I'll try to go back through and fix them in the next couple of days, and I'll update when I do.)

Notes:

1. Knight v. Florida, 528 U.S. 990, at 997.
2. U.S. v. Printz, 521 U.S. 898, 977.
3. Ruth Bader Ginsburg, “Affirmative Action as in International Human Rights Dialogue,” 18 Brookings Review (2000) at 3.
4. Sandra Day O’Connor, keynote address, American Society of International Proceedings, 350.
5. Lawrence v. Texas, 539 U.S. 538, 572 (citing the European Court of Human Rights).
6. William Rehnquist, Remarks of the Chief Justice, Court of Appeals for the Federal Circuit Twentieth Anniversary Judicial Conference, 8 April 2002, on the Supreme Court homepage.
7. Knight v. Florida, 528 US 990.
8. P. 227, citing Yash Ghai, “Sentinels of Liberty or Sheep in Wolf’s Clothing? Judicial Politics and the Hong Kong Bill of Rights,” 60 Modern Law Review 459 (1997), at 479, 507.
9. Thompson v. Oklahoma, 487 U.S. 815, 8679 (1988).
10. U.S. v. Printz, at 921 (emphasis added).
11. The most important discussion of this whole matter remains Jed Rubenfeld, “The Two World Orders,” Wilson Quarterly (Autumn 2003), at 22. He concludes that the “unfortunate reality, however, is that international law is a threat to democracy and to the hopes of democratic politics all over the world.” At 34.
12. Charles Fried, “Scholars and Judges: Reason and Power” at 818.
13. Jed Rubenfeld, at 25.
14. Jed Rubenfeld, at 29.
15. Jed Rubenfeld, at 29.
16. I address the quasi-religious overtones of these discussions in Kenneth Anderson, “Secular Eschatologies of the Internationalized New Class,” in Peter Juviler and Carrie Gustafson, eds., Religion and Human Rights: Competing Claims? (ME Sharpe 1998).
17. This is not support for any current efforts to strip Federal courts of jurisdiction in domestic matters; I think those are all quite wrong. I confine this view solely to the case of using the Federal courts to draw into US constitutional jurisprudence a body of materials that have no cognate in this country’s democratic constitutional order – no rootedness, as Rubenfeld says, in popular democratic sovereignty. In that case, the extraordinary reassertion of democratic sovereignty by the elected branches of government would seem to me justified.

Chief Justice Rehnquist on foreign law in US courts

In an article in today's NYT, here (thanks to Ann Althouse) Linda Greenhouse examines Chief Justice Rehnquist's report on the federal judiciary. A key portion of it addresses judicial independence, and raises in particular the concern under Congressional legislation that a judge might be impeached for overreliance on foreign courts and their decisions. Rehnquist takes the view - and I agree with Althouse that it is too extreme and bright line a position - that no judicial act can be the basis for impeachment, including reliance on foreign decisions and opinions. Althouse discusses the relevant parts of Greenhouse's article:

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Linda Greenhouse has this account of the Chief Justice Rehnquist's year-end report. A key point:

'There have been suggestions to impeach federal judges who issue decisions regarded by some as out of the mainstream'. ...Chief Justice Rehnquist said ... that it had been clear since early in the country's history that "a judge's judicial acts may not serve as a basis for impeachment." Any other rule," he added, "would destroy judicial independence," since "judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them".'

What "suggestions" is he referring to? Greenhouse cites the House Reaffirmation of American Independence Resolution, which states that "inappropriate judicial reliance on foreign judgments, laws or pronouncements threatens the sovereignty of the United States, the separation of powers and the president's and the Senate's treaty-making authority." One of the resolution's sponsors alluded to impeachment as a remedy.

It's hard to imagine that any judge feels any kind of threat of impeachment merely for citing foreign law. The resolution refers to "inappropriate ... reliance" on foreign law. Presumably, at some point, the use of foreign law really would damage United States sovereignty to the point where a judge ought to be removed.

I don't agree with the bright line rule Rehnquist seems to proclaim: a judge ought never to be removed for anything he does as a judge. (I'm not looking at the full text of the report as I write that.) And I don't see why judicial independence is "destroy[ed]" simply because a judge would be "concerned" about motivating people to call for his impeachment. Federal judges have extremely secure positions, founded on the Constitution's provision for lifetime appointments. But the Constitution also provides for impeachment, and some pushback against judicial power is a good thing. The demand for an absolute rule against impeachment for "judicial acts," lest the judge feel any pressure from the political sphere, is actually quite extreme.

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This underscores the importance of the Scalia-Breyer debate on the proper role, if any, of foreign law in US constitutional adjudication. I am grateful to Professor Althouse for mentioning the January 13 event, and even more for wanting to simulblog it. For those wanting to attend in person, registration information is available here. Information on the livestream will be available at the Washington College of Law, American University website, here, starting January 10.

Ian Buruma on Dutch multiculturalism

In conjunction with the post below on Chris Caldwell's article on Dutch multiculturalism, check out Ian Buruma's New Yorker article on the crisis in Holland. Buruma, who is half Dutch, is one of the finest writers in the world on cultural difference, whether in Europe or Asia. Read it here.

Donating to the Red Cross for tsunami relief

Instapundit discussed donating to the Red Cross (via Amazon) to get aid to the tsunami victims. He noted that some people are angry with the International Committee of the Red Cross for its public criticism of the Bush administration and its willingness to leak supposedly confidential reports to the press. Instapundit notes that Amazon donations are going to a legally separate organization, the American Red Cross - I understand, however, from reading the American Red Cross site, that the money is going toward the worldwide Red Cross effort, including the ICRC and the federated national Red Cross societies around the world.

Which is how it should be. There are many extremely fast and efficient NGOs engaged in relief work following the tsunami to which one can donate, but no one should hold back from donating directly the Red Cross, whether the American Red Cross relief effort or directly to the ICRC on account of the ICRC's disputes with the Bush administration. The ICRC is at the top of the fastest and most efficient distributors of emergency relief aid on the planet - and in truly large scale relief work and situations of large scale war, it sets the planetary standard. No one can touch it for large scale relief response on an immediate basis. As a human rights worker in the field, I have watched it in action many times - in the Republic of Georgia and Abkhazia, in Central America, in the former Yugoslavia, many places. I am grateful to all those ICRC delegates in the field and all they did for the people there, while still taking time out to talk to me. The Bush administration knows the importance of the ICRC's ability to respond, and for exemplary humanitarian reasons has not allowed its policy disputes with the ICRC interfere with the US government's very substantial financial contributions to the ICRC. The Wall Street Journal editorial page was wrong recently to suggest, here, that the Bush administration should threaten the ICRC, even over altogether wrong behavior by the ICRC, with funding reductions.

I have many disagreements about ICRC policy, interpretations of the laws of war, its behavior with respect to the detainee issues - but none of them touch its work in the field in disaster, especially in armed conflict. There are many fine relief organizations out there, but it matters to have certain ones that have, relatively, huge capacity. The ICRC is that organization, and although I will argue forever with its policies and views on the laws of war, the Red Cross is getting my donation for tsunami victims and there is no reason in the world why it shouldn't get yours.

Update (Friday, December 31, 2004): If you want to get the charitable tax deduction while still contributing to the worldwide Red Cross effort, including the ICRC and the federated Red Cross societies, simply make your contribution through Amazon to the American Red Cross. And you should next estimate what your charitable tax deduction would be, and then contribute it. (I've also made some grammar corrections above.)

Article 5, Third Geneva Convention (POWs)

I have been asked by several people on what basis I have said that the US, in its detentions in the war on terror and in its detentions arising from the Afghanistan and Iraq conflicts, is not in per se, wholesale violation of the Geneva Conventions by its refusal to treat all of the detainees as prisoners of war. Let's go back to the Third Geneva Convention to answer this.

Of course it is quite possible that with respect to particular detainees, the US might be - or might have been - in violation of an obligation to treat them as POWs. These would be detainees that meet the requirements of Article 4, Third Geneva Convention, which defines legal combatants entitled to POW protection. The clearest case of combatants entitled to POW treatment in the current armed conflict is uniformed Iraqi soldiers taken prisoner by the US in the Iraq fighting prior to the fall of the Saddam regime. My point is not that in particular cases, the US might not be in violation - certainly it might be, in particular cases. It is, rather, that the US is not in violation of the Geneva Conventions on account of its refusal to treat all detainees as POWs. The US is not in violation of the Geneva Conventions per se, although that has been a consistent assumption in newspapers and the media criticizing the Bush administration.

Legal combatancy is defined under GC III, Art. 4, and it contains all the criteria which have been well discussed for several years for being a lawful combatant. Al Qaeda does not meet the criteria, most obviously because its means and methods of fighting - targeting civilians - systematically violate the laws of warandc deprive it, as a group, of legal combatant status. Art. 4 makes legal combatancy quite deliberately the characteristic of a group - it does not recognize solo fighting, an army of one, and it requires a responsible chain of command to enforce the laws of war. It is possible under Art. 4 that even though a particular individual has done nothing to violate the laws of war, he or she might still be held accountable as an illegal combatant because the group itself systematically violates the laws of war.

Whether the Taliban met the requirements for legal combatancy is an open question. The argument in favor is that it was the armed forces of a state; the argument against is that only three countries in the world had even recognized the Taliban as the legal government of Afghanistan nor was it recognized by the UN General Assembly - implication being that if it was not a state, then its armed forces were merely irregular militias, which had to comply with the rules of responsible command, adherence to the laws of war, and so on. I discuss the arguments over the Taliban and Al Qaeda with respect to legal combatant status briefly in a NYT magazine article, available at SSRN, here.

In Iraq, the US acknowledged that regular Iraqi soldiers were legal combatants, and even counted Saddam as such, although I do not believe that decision was either compelled by the law or a wise precedent. With respect to irregular fighters, or fighters who took off their uniforms to continue fighting, the US has grounds to treat them as illegal combatants and deny them POW status. With respect to the period in which the US was legally the occupier in Iraq, the US had broad latitude under the Fourth Geneva Convention both to detain individuals as security risks (although in such cases, they had certain protections similar to POW protections under the Fourth Geneva Convention) as well as very broad (and almost entirely unused) powers to punish insurgency and attacks against the occupation, including the death penalty, again under the Fourth Geneva Convention. With the transfer of sovereignty back to an Iraqi government, the US role has - arguably - shifted again, and the US no longer stands as the occupying power in the meaning of the Fourth Geneva Convention; this does not mean that detainees in US hands lack legal protections under the Fourth Geneva Convention, but it does mean that the sovereign Iraqi government has new rights and the US no longer has the plenary right to punish Iraqi terrorists and insurgents as an occupier, although it may do so for violations of international law such as war crimes.

Whether one is discussing alleged Al Qaeda, Taliban, Iraqi insurgent terrorists, or others, the first move is to claim that all of them must be treated as POWs. As noted above, many of them do not meet the requirements - not just that they do not meet the requirements as individuals; they do not meet them as a group. Hence there is no obligation to treat them as POWs, because they are not legal combatants. The next move, then, is to say that although they do not meet the definitions of a legal combatant under Art. 4 of GC III, if they are not combatants, then they must be "civilians" within the meaning of the GC IV - as the ICRC puts it, no one can be left without a Geneva Convention status. You are, on this line of thinking, either a combatant or you are a civilian. (Sometimes it is put, as the Economist once rather ignorantly did in an editorial two years ago, that after all the term "illegal combatant" or "unprivileged belligerent" nowhere appears in the Geneva Conventions. One might point out that the term "war crime" nowhere appears, either, but that does not make it less of a legal category.)

The problem with this second move, however, is that it does not follow that if you are not a legal combatant, you must therefore be a civilian - with even more rights, in some respects, than POWs. You do not thereby become legally a civilian - i.e., a noncombatant. You are a combatant, not a noncombatant, and not for you was the Fourth Geneva Convention drafted. You remain, instead, precisely what you are - an illegal combatant, an unprivileged belligerent. Your status is something, although not exactly, like that of a spy. You may not be summarily executed (the US apparently accepts the minimum due process procedures of Art. 75 of 1977 Additional Protocol I as customary international law although it rejects the treaty as a whole), but you are not entitled to the full panoply of procedural protections due a legitimate POW.

And procedural protections are at the heart of the matter. As far as conditions of detention and interrogation go, the US can certainly treat an unprivileged belligerent in ways that are far rougher than how it can treat POWS - whether it has fallen below the barrier into torture in certain cases, I do not address here. But the still more crucial question is what it takes to try and punish for war crimes, illegal belligerency, terrorism, and so on. If the detainee is legally entitled to be treated as a legitimate POW, then he or she (arguably, however; this has been reasonably disputed) is entitled to all the legal protections that a US soldier would be entitled to faced with the same charges. Because the US military justice system attempts to duplicate US constitutional protections as far as possible, and that involves a very, very high standard of evidence, proof, and so on. Which leads us back into the nightmare world delivered to us by the Clinton administration and its law-enforcement model of fighting terrorism, in which you have to get Federal courtroom standards of proof to act, have no basis to act in advance because, after all no crime has yet been committed, and it's not worth bringing Bin Laden in even when offered because you don't think you have the goods to indict him.

But the third and final move to say that the US is in per se violation, across the board violation, of the Geneva Conventions is to argue, well, the US has not held adequate and required hearings before a proper tribunal to determine the status of the detainees. My view - as a matter of policy, not international law - is that the Bush administration made a grave prudential and moral error in not abiding by its own 1977 DoD regulations concerning the brief and unappealable three officer hearings to be used in cases where legal combatant status was at issue. Those regulations were seen by the ICRC and by everyone else as going far beyond the standard required to offer a hearing and a tribunal. The Bush administration has contested that it even needed to offer such hearings - doing so not so much from a view of the interpretation of the Geneva Conventions as from a quite unrelated constitutional theory about the unitary power of the executive in matters of war. It has been losing on the big constitutional theory, and carrying down with it a vital but unrelated view of obligations under the Geneva Conventions. Tod Lindberg, in a brief article in the Weekly Standard, expressed my view on this best (link to follow).

But was the Bush administration in violation per se of the Geneva Conventions when it refused initially even to hold hearings? Many, many commentators simply declared that it was, but they might have troubled themselves to look and see what Article 5 actually says:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

This Article has been widely announced as meaning that any doubts that arise must be determined by a competent tribunal; the debate then turns on what constitutes a competent tribunal and whether the Bush administration's hasty retreat to something like the 1977 regulations qualifies. But Federal judges might take note that this is not what the Article actually says. It literally says that should any doubt arise, then the person shall be treated as a POW until their status is determined by a competent tribunal. It does not say that the question of whether any doubt has arisen must be determined by a competent tribunal, even if the person demands one. It is literally open for the administration to determine that a certain group has undertaken unprivileged belligerency and that with respect to any particular individual, no doubt arises and, therefore, there is no obligation to convene a tribunal.

I reiterate, this is not in my view a proper way for the Bush administration to proceed, and having bet not on the language of the Geneva Conventions but instead on a bold and misguided constitutional theory, it has probably foreclosed the powers it had under the treaty language and will probably see the brief and informal tribunal plainly contemplated and blessed by the ICRC's view in times past replaced by something resembling a full trial. None of this is to the good, and the blame lies squarely with the overreaching of the government's briefs before the Supreme Court. After all, does anybody think that it would be a good idea for the US Navy, if it were to capture alleged drug traffickers in ships on the high seas in the Caribbean, to have to convene a full tribunal should someone claim combatant status? There are reasons why this article was structured as it was - its literal meaning is not merely a technicality. It should have applied DoD's 1977 regulations as they existed.

Nevertheless, it is quite false to say that the US is in violation of the Third Geneva Convention across the board because it has not afforded detainees "competent tribunals" - the administration's actions are within the literal language of the treaty article.

(Note: I'll go back and add some links later on and clean up some grammar.)

Update (Friday, December 31, 2004): I don't agree with all of it, but this is a very good article by Phillip Carter in Slate on this topic as well as on the problems of keeping the standards for interrogation in bureaucratic secrecy.

Justices Scalia and Breyer debate foreign law in US cases

I see that several bloggers have been kind enough to link up regarding the upcoming conversation at my law school, Washington College of Law, American University, DC, with Justices Scalia and Breyer on the relevance of foreign law in US constitutional adjudication. Here is a full announcement; you can register to attend in person here.

This event is cosponsored by Washington College of Law and the US Association of Constitutional Law, the US affiliate of an international scholarly organization on comparative constitutional law - Norman Dorsen, the founding president of the US affiliate, will moderate the event.

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On Thursday, Jan 13, 4-5:30 pm est, at American University law school in DC, Justices Scalia and Breyer will hold a conversation on the topic of "The Relevance of Foreign Law for American Constitutional Adjudication." You are cordially invited, if you were to find yourself in DC that day; RSVP by Jan 10 to secle@wcl.american.edu. However, the event will also be livestreamed on the web; details available beginning Jan 10 at www.wcl.american.edu.

The topic is a hugely important one, of course - is Justice Breyer right in believing that the US constitution is simply an emanation of a broader global body of universal law and values, and hence it is appropriate to consider other sources? Or is Justice Scalia right in insisting that the US legal system owes fidelity to the US constitution alone? This is the sleeper issue for the Court over the coming decade, with immense implications for the "values" debate in the US.

For those of you who are bloggers, I would be very grateful if you might let your blog community know about this event, and even more grateful if you and others would consider liveblogging it as it livestreams.

Announcing Sanford Levinson's Torture: A Collection

In the midst of the increasing revelations on US interrogation practices in the war on terror, the essays in Professor Sanford Levinson's edited volume, Torture: A Collection, take on enormous importance. Professor Levinson, the very distinguished constitutional law scholar at the University of Texas Law School, has performed a critical service in being willing to talk openly about the questions of what constitutes acceptable interrogation, what does not, and what is torture.

It is not comfortable reading. But it is one of the very few discussions of this subject that is willing to step beyond rights-absolutist platitudes that leave no room to discuss what is actually okay in interrogation and what is not, and under what circumstances. It is in part the inability to talk publicly about what is okay, what is not okay, and what practices concretely constitute torture that has led the US to the situation today. It has unfortunately been unacceptable even to raise the question of tradeoffs between the security of potentially large numbers of people and what is determined to be individual rights. However, if open discussion is impermissible because it is politically incorrect even to raise the question, then the question of concrete practices - which are acceptable and which are not - will be determined in closed police, military, and intelligence bureaucracies. The results are and will be ugly.

I am not going to discuss concrete practices that have been appearing in the press at this point, even though ultimately these questions come down to line-drawing about concrete practices - this is okay, this is not. Sure, if you are Human Rights Watch or Amnesty International or the ICRC, then none of this matters, or anyway is all wickedness, because you think that any time the US has custody of someone, they must somehow be protected as a prisoner of war under the Third Geneva Convention and, in any case, that the only thing one may do is politely ask the equivalent of "name, rank, serial number." But most people don't think that, and certainly I don't. A public discussion that is frozen in this kind of rights-absolutism, while living in a time of justified fears of terrorism, however, will only guarantee that the discussion is held in private, without broad public discussion and input. And that, quite obviously, is what has happened. (For that matter, we must also fear what happens when, as happened in the 1970s intelligence reforms, any interrogation is ruled out of bounds, and bureaucrats in law enforcement, the military, and intelligence rationally conclude anything beyond what the human rights NGOs think is okay will invite a trip to jail, and it is better not to seek the intelligence necessary to prevent terrorist attacks). Some of the methods described in the newspapers are obviously unacceptable, some acceptable, and some might fit the legal definition of torture - I want to wait and see more documentation that is not just the press description before discussing particular cases here. My point now is that we have got where we are in part by an unwillingness to discuss the issue in public fora, because even to discuss it violates certain canons of polite discourse.

Which is why Professor Levinson and his contributors have done such an enormous public service by breaking the silence around this issue. I add, too, that it could only be done by a constitutional scholar of Professor Levinson's acknowledged integrity and unapologetic liberalism. I'll give it a review here in a future post.

Defining terrorism, 2

In my earlier post on defining terrorism, I suggested that the full definition of terrorism cannot stop merely with direct attacks on civilians. Although direct attacks on civilians (done with a political purpose, etc.) will always constitute terrorism, they do not exhaust the category of terrorism (I am ignoring here the equally abhorrent but quite different phenomenon of state terrorism by a state against its own population). In particular, it does not take into account terrorism directed not against civilians but against what would be, in a legitimate war, legitimate targets such as military personnel or facilities, and collateral damage to civilians arising from such attacks. Examples include attacks against British soldiers by the IRA or the attack upon the USS Cole. The attack on the USS Cole, I noted earlier, in a legitimate war would be an exemplary attack against a legitimate military target in which - being a ship away from civilians - no civilian collateral damage occurred, although dozens of US military personnel were killed or injured.

I remarked that this is terrorism rather than a legitimate surprise attack not because of the means or methods of warfare - as would be the case in direct attack against civilians - but because the attackers had no legal right to be engaged in warfare at all, and hence any violence they engaged in (for political ends, etc.) constitutes terrorism. No concept of combatant's privilege applies. That is, determining whether it is terrorism or legitimate warfare depends crucially on the concept, in just war theory, of "right authority." Who has the rightful authority to engage in war? well, the sovereign, plainly - even if the war, for other reasons, is unjust or illegal.

But does anyone else? Historically, the world's great democracies very often arose out of assertions of the rightful authority to make war, rebellion, secession, and revolution - the US and France, to start with. In contemporary times, similar assertions arose out of the decolonialization movements and national liberation movements, notwithstanding that international law then and now allows the legitimate sovereign to punish such movements as rebellion, sedition, treason, etc. Hence the terrain of who is permitted to undertake war is contested - it is not, by law or history, entirely confined to sovereigns. Yet sovereigns are allowed to punish with the full weight of domestic law, those who undertake rebellion - put another way, rebellion is not a subject of international law as such, and its suppression fully available under domestic law. Rebels whose rebellions arise to a certain level of activity benefit from a special international law governing internal armed conflict and civil war, Common Article 3 of the Geneva Conventions but, although that article prohibits summary execution, it does not prohibit or address the domestic law right of a sovereign to charge and try rebels not only for rebellion, but to treat any violence in those acts as terrorism.

In attempting to define fully terrorism, then, the question is whether international law can or should pronounce upon who is permitted to make war or, instead, whose acts of political violence should be regarded as rebellion which might (depending on whether it is violence used to try and influence a government (etc.)), constitute terrorism - as a matter not merely of domestic law, but international law. One approach is to limit international law only to the question of direct attack on civilians, while leaving the rest of it to domestic law. A second approach is to seek to incorporate it all into international law. As a practical matter, I cannot see that international consensus will be reached on the non-civilian part of the question, or put another way, on those aspects of the definition of terrorism that go beyond prohibited means and methods of warfare - and it is better to explicitly announce that the prohibitions in international law are not comprehensive, and that individuals are subject to domestic law in addition to international law.

But that does not answer the question of where to draw the line, provided that one goes beyond the concept of only-sovereigns. The reality is that, beyond legitimate sovereigns, the question of who may use force is, for practical reasons, often answered post-hoc - if your rebellion was successful, then you won't be hanged, and your exercise of force (eventually) legitimate. If it wasn't, then you'll be hanged and your exercise of force will remain illegitimate. Force molds legitimacy in some cases, and this is one of them. It is, to be sure, an invitation to the use of force, and that is a large problem - precisely the same problem faced by those attempting to set out the ante-hoc criteria of legitimate self-determination - which, after all, is often another name for the legitimate exercise of force on behalf of a political community.

I don't propose to set out a full definition here. As a practical matter, I think the best approach is to have international law acknowledge its incompleteness on this matter, while working out prohibitions on direct attacks on civilians as terrorism as well as in particular circumstances - aviation, etc. - and leaving the rest, explicitly, domestic law. This is an approach that favors the strong sovereigns, such as the United States, and that is fine by me. But I will suggest some limited, incomplete criteria for terrorism going beyond civilians that might be put into international law. Political violence by transnational groups that have no limitation in territory - not only no attachment to a territory, but no limitation provided by one either, might be fit for international criminal law. This would rule out Al Qaeda, assuming one rejected the claim that it was really territorially based, but it would not, note, rule out the IRA or ETA; there are other principles, at the level of international law and not only domestic law, that could be used to rule them out. Beyond that, there are other criteria (some of which arise in the definitions of terrorism used in specific treaties covering specific types of terrorism) that I am still considering. I am tentative about the above as a matter of international law, and might change my mind about some of this, mostly because international law so often turns out to be a way of limiting the scope of sovereign action and, in the war on terror, turning it into a variety of criminal law enforcement, whether domestic law enforcement or international criminal law enforcement, seems to me a very, very bad idea.

Calling Chris Caldwell

The preeminent American journalist covering and writing on Western Europe, Christopher Caldwell, has written an important piece in the Weekly Standard - here - on why Dutch society, in thrall to a deadly multiculturalism, finds it difficult if not impossible to defend its own values in the face of movements which are only too happy to take advantage of its freedoms with the ultimate intent of undermining them. Western Europe faces a long term version of the campaign slogan of the Islamists in Algeria - one election, one time - using elections, free speech, the freedoms of a liberal order to undermine it. (One may recall that this was a Communist strategy as well; it was what Harry Truman and the anti-Communist Democrats confronted in the post-war 1940s when they finally purged the party of the Wallace faction.)

Here is my question for Chris Caldwell. I would have thought that the perfect theatre piece to represent Europe's problem would be the 1950s play by the Swiss playwright Max Frisch, The Firebugs (Biedermann und die Brandstifter). It is a very funny, very noir rendition of a city beset by anarchist arsonists who fully intend to burn the city down. They park themselves in the house of a stolid, but ultimately utterly spineless and pliable, bourgeois gentleman who simply can't say no. He can't say no, can't bear to impolite, and watches, unable to bring himself to interfere, as they assemble the incendiary devices and so on. It's nothing like brainwashing, nothing like the Stockholm syndrome - it's nothing more than Dutch levels of politeness. He recognizes very quickly what is going on, but can't bring himself to name it, and goes through endless comic levels of cognitive dissonance to avoid drawing the conclusion that two plus two really will equal four - with a big explosion. I recall reading it in a high school German class. My incomplete scan of the German and Swiss arts scene does not suggest than anyone remembers the play at all, although I would have thought it a picture perfect rendition of what Caldwell describes. Those of you who cover the German language arts scene - am I wrong? Is Frisch's play being revived?

I am also forwarding this on to the superb English language blog on German affairs, Davids Medienkritik for consultation.

UPDATE: I see that the play has been revived a couple of times in the United States - once in 2002, and again this year, 2004. Read about it here. The play is usually represented as an allegory about Hitler's rise, but it seems to me it works perfectly well as an allegory about any totalitarianism that rises through the bourgeois complacency - nazism, facism, communism, islamofacism. I don't suppose that anyone would be so multiculturally insensitive as to actually revive it as a direct play on islamofacism in Europe - but then one would hardly need to; any audience would get the point, yes?

Defining terrorism

One of the perennial problems of international criminal law is defining terrorism. The entire discussion was stalled for decades by the slogan, "one man's terrorist is another man's freedom fighter," and hence stalled by the wars and ideology of decolonialism and the wars of national liberation. Even though that era is largely over - it survives, really, only in Palestinian liberation ideology - the problem of definition remains intractable at both the abstract level and the practical level.

In practice, the question of the definition of terrorism arises each time, for example, a media outlet - newspaper, the AP, CNN, NPR, the BBC, what have you - refers to an attack, for example, on Iraqi civilian election workers as an attack by "insurgents." Terrorists, apparently, is too loaded a word for the main stream Western media, seeking polite neutrality. In the case of some especially politically freighted media, such as Reuters, the locutions seem aimed at making a definite political statement that the "insurgents" are not "terrorists," rather than some (morally indefensible) attempt to maintain a supposed "neutrality."

That's at the practical level. The theoretical problem can be stated this way. Leaving the media aside, there is general agreement among Western elites - including the functionaries of the UN and the elite international bureaucracies - that the core definition of terrorism must encompass attacks which target civilians directly. That, presumably, is the easy case, because it is always indefensible. It is part, for example, of the suggested definition of terrorism in the new report to the Secretary General by the High Level Panel, at paragraph 164. A number of treaties, resolutions, declarations, and so on have been formulated which adopt as a definition, in one fashion or another, the prohibition on direct attack against civilians from such sources as 1977 Additional Protocol I or other law of war sources.

Well, "always indefensible," anyway, except if you are among the numerous Islamic clerics (too many unfortunately in what passes for the "mainstream" of the Muslim world) for whom direct attacks on civilians, such as the terror attacks on Israelis, are acceptable because, being the weaker party, you supposedly have no other means of striking back against the oppressor. They treat such terrorism as a kind of extreme case of military necessity (and perhaps even a version of Walzer's "supreme emergency" thesis) - supposedly giving you the "necessity of nature," as Hobbes or Thucydides might put it, to attack civilians. That the prohibition in the law of armed conflict of direct attack against noncombatants is not accepted even in principle by a significant portion of influential opinion in the Muslim world must give great pause.

Still, one might wonder why these Islamic clerics should bother thinking any further about the moral implications of attacking civilians, however, given that not even the leading Western newspapers and media, by applying terms such as "insurgents" rather than "terrorists" (even to attackers such as those who over the weekend assassinated civilian Iraqi election workers), trouble themselves to apply the term to acts that even Kofi Annan and the High Level Panel would call terrorism. Those who attacked and summarily murdered the civilian election workers are "terrorists" even on the purely neutral criterion that you are a terrorist if, among other things, you use means and methods which directly target civilians. This is not the rocket science of ethics. The inability of writers and editors in the media to recognize even that much as plain terrorism and to call it by its name speaks to a particularly intractable and vicious brand of multiculturalism, politically correct sensitivity gone morally amok. They are intellectuals, Camus might have said, who deploy the weapons of their language in the justification of murder and then call it neutrality. (You can read my view of the moral poverty of discourse of neutrality here, in the last sections of the article on humanitarian neutrality.) But, of course, flogging the NYT, the Washington Post, CNN, NPR, or the BBC is flogging a dead horse - recall, after all, the BBC reporter, a few weeks back, describing the tears welling up in her eyes (and not tears of joy) at the death of Arafat.

The theoretical problem even beyond the question of civilians is that this definition of terrorism is too narrow. It does not include, for example, IRA attacks on British soldiers or policemen, whether in northern Ireland or elsewhere. In effect, what the IRA said was that it was in a war, and it would abide the general rules of combat - i.e., aiming at what it said were "combatants" in that war, and not aiming at what it said were "noncombatants." This meant that, according to its own criteria, its fighters were "combatants" fighting other "combatants" and - a crucial corollary - collateral damage, including death and injury of bystanders, would be measured according to the traditional law of war standard of proportionality between military necessity and harm caused. And of course, if they were in a war, and they otherwise met the requirements to be combatants in, say, article 4 of the Third Geneva Convention, then all that would be quite true.

But according to the British government and everyone else - leaving aside the looney left -the IRA was not a legitimate party to a legitimate conflict. The IRA had no right to be fighting at all, and it did not matter if they conducted themselves according to the laws and customs of war - any death, injury and destruction they caused was simply criminal and terrorism, because they were not entitled to fight. They did not benefit from the so-called "combatant's privilege" - the legal privilege of aiming at other combatants without the results of the fighting, or proportionate collateral damage resulting from the fighting, being accounted to them as criminal; a legal privilege matched, however, by the disability of being a target of someone else on the other side. The reason they did not benefit was simple: they did not fight in a legal and legally recognized war. Hence the people they attacked, including the soldiers and policemen, had no reason to think they were liable to attack and (if done for political purposes with the intent of influencing political policy) those deaths and injuries are no different for purposes of describing the attack as "terrorism" than if they had attacked civilians.

(The High Level Panel report carefully elides this question - referring specifically in par. 164(d) to definitions of terrorism that cover only "civilians and noncombatants" while also referring in par. 164(b) to earlier anti-terrorism treaties that arguably have broader scope. It is yet another reason why the report is and should remain a nonstarter.)

As soon as the definition of terrorism moves - as it must - beyond the question of civilians and noncombatants, however, it also moves beyond the jus in bello question of simply means and methods of warfare - what you aim at - to the jus ad bellum question of whether you are entitled to be fighting at all, i.e., aiming at anything or anyone at all. After all, if the mafia in the United States simply decided to announce that it was fighting a war and entitled to international law protections, no one would pay its claims any attention. The next step would be for it to announce that it was fighting for political goals, but still no one would pay any attention - it would not be regarded has having the political legitimacy to fight at all.

The Geneva Conventions seek to address this problem by saying, in effect, that if a conflict walks like a duck, and talks like a duck, then it must be a duck. If the objective level of conflict and fighting becomes widespread enough, rises high enough, to start looking like a war, then the rules of war apply. This has the virtue of seeking to maintain the strict separation of jus in bello from jus ad bellum - it has the disadvantage, however, that no clear practical line separates one level of fighting or attacks from another.

In any case, even if the fighting rises to a level high enough to trigger the rules of war, but the conflict is a purely internal one, it is covered only by the minimal protections of Common Article 3 of the 1949 Geneva Conventions, and not the full body of treaties. Common Article 3, note, does not prevent the legitimate government of a state from trying its insurgent for treason and insurrection and murder and anything else that might be a crime arising from armed conflict - it confers no prisoner of war protection or combatant's privilege on rebellion, only minimal due process protections and protection against summary execution. And there must be a certain level of conflict before even Common Article 3 applies; the point about terrorism is that even if the acts are carefully limited to what, in a legitimate war, would be legitimate military targets, they rarely rise to the level of conflict necessary even to invoke Common Article 3 (although the ICRC has had a long and dubious pattern of lowering the bar in its pronouncements on the status of conflicts).

When, therefore, the USS Cole was attacked, that attack could be viewed as either terrorism or a surprise attack by a new enemy engaging in war. The view of the US and nearly all sovereign states (unsurprisingly) was that the attackers had no right to be engaged in armed conflict at all, and thus although, if it were a war, it would have been exemplary in that it involved no civilians or collateral damage to civilians, that did not matter. Surprise attack by a legitimate adversary is no violation of international law, but since there was no legal right to attack these people at all, any attack on them was the same as though civilians had been attacked. This is how one treats it as terrorism. However, reaching that conclusion requires a conclusion about a core issue of jus ad bellum - viz., who has, in traditional just war terminology, the "right authority" to engage in war? This is not a question the ICRC or other guardians of jus in bello are qualified to answer, because it requires a judgment about jus ad bellum that these institutions are supposed deliberately to eschew.

I accept the position that past a certain level of fighting, seen on an objective, purely behavioral basis - sustained control of territory, for example, large numbers of fighters, and other such indicators - the rules of war apply, if only the minimal provisions of Common Article 3. Short of that, however, or if, in the case of transnational Islamist actors who attacked the USS Cole, one catches someone and has to decide what to do with them, then the question of who may legitimately make war and who is not will not go away in the question of defining terrorism. Jus in bello will not answer it. It is a question of right authority. Sovereign governments, pretty obviously, would prefer to limit it largely to, well, sovereign governments. The difficulty, going back to Locke at least, is that the leading democratic states - the US, France, even Britain - arise out of civil war and acts of rebellion and secession. It is what, after all, the Declaration of Independence is all about - justifying the use of force when you are not actually a sovereign. Drawing that line in today's world is no easier.

Yes, ruling out attacks on civilians and noncombatants is easy. Ruling out attacks on the armed forces of a state, however, against something that, in a state of legitimate war, would plainly be a legitimate target depends fundamentally on saying what parties are legally entitled to fight, and that is far harder. But unless one is willing to do so, it is not possible to capture what we mean by terrorism, because nearly all of us intend the definition of terrorism to include far more than just attacks on civilians.

This, the United States should take careful note, is not something on which the political actors in the world - sovereign states, the UN, NGOs, all the rest - will be able to agree. It is possible to imagine near universal agreement in ruling out attacks on civilians and noncombatants. It is not possible to imagine agreement, even agreement between the US and its European allies, on what parties are entitled to fight. And because there will be no agreement in moral and political principle on such an issue, it is a foolish and dangerous thing for the United States to pursue treaty discussions that would limit its scope of action with respect to what it would see itself morally and politically bound to regard as terrorism - including the attack on the USS Cole and the treatment of its perpetrators as terrorists. Lacking a principled ground of agreement on the outer boundaries of the definition of terrorism - even if there is agreement on the inner boundaries of no targeting civilians - the United States would be well advised to stay out of treaty negotiations over its full definition that will inevitably be weaker than what the US must regard as minimally required.