An American Gulag? Human rights groups test the limits of moral equivalency (my Weekly Standard article - comments welcome here)

(Update, Monday, June 6, 2005: Irene Kahn, AI SG, uses the word 'gulag' once in her introduction to the AI report, and I should probably have noted it in my article. My claim, however, is that her use of the term 'gulag' in the press release - in its original Soviet meaning - is altogether different from the mention of that word in the introduction, that its use in the press release nowhere appears in the report, and that neither usage is defended or argued for anywhere in the report.

(The introduction mentions gulag in a generic way - although nowhere in the rest of the report is even that generic charge taken up, defended, or given evidence. Many have argued against AI that there is no merely "generic" sense of gulag - if you use it, you mean a system of prison camps with mass numbers, millions of prisoners in horrible conditions, with mass numbers dying - all the features of the gulag described in such horrific detail by Anne Applebaum and others. I incline to admit a certain generic meaning nowadays for the term gulag- even if it is a sad corruption of the language - to denote any system of prison camps in which are held arguably political prisoners. That said, I don't think that even AI's generic use in the introduction is defensible because Guantanamo is not a camp for political prisoners - and that is so even if there are some innocent people trapped there. And if Amnesty thinks it is a camp for political prisoners - 'gulag' in a generic sense - it is obliged to defend that characterization with evidence somewhere in the report. It does not; the term nowhere appears again after that single, inflammatory reference in the introduction.

The Amnesty press release, however, uses the term 'gulag' in a quite different and much stronger sense. Khan does not simply use the term gulag; she then goes on specifically to invoke the Soviet gulag, the original gulag. By so doing, she raises the bar for what must be shown to substantiate that charge to the level of the actual Soviet gulag. The charge of a specifically Soviet-style gulag, a gulag in the historical sense, is made only in the press release, and not in the report, not in the introduction and nowhere else in the report. As used in the press release, the term gulag raises a wholly different charge on an entirely different scale against the United States from its use even in the introduction. This stronger use of the term in the press release is nowhere discussed or defended with evidence in the report. (Nor, I emphasize, is even the generic use of 'gulag' further discussed or defended after being used once in the introduction).

(Since Khan, in the press release but not in the report, chose to invoke the Soviet gulag - the real gulag, the original gulag, all the criticisms that Anne Applebaum, the Washington Post, EJ Dionne, and others have made as to why it is not comparable to the Soviet system and an outrage to suggest that it does come into play. I agree, up to a certain point, with the anonymous comment below that it doesn't so much matter what you call a thing as what it is - except, however, that to say 'what it is' requires terms to describe it. If those terms are both wrong and inflammatory, that's a serious problem. In the case of generic use of gulag, it is, in my estimation, wrong. In the case of what the press release said, the Soviet Union's gulag, it is so gross a distortion as to deliberately falsify what you say you are describing. Words matter, and it is wrong and false to pass it all off as mere semantics, as Irene Kahn's letter to the Washington Post did, as HRW counsel Reed Brody echoed in his comments to the NYT defending AI, and as the NYT editorial page did.

(It is an additional sign of moral unseriousness, moreover - of dangerous rhetorical inflation - to have no discussion of what the press release says or the inflammatory term used in the introduction in the actual country discussion section of the report, the place in the report where evidence of actual country practices during the last year is presented and reviewed - there is no discussion of gulags or any of the other charges that I raise in the press release in the USA country section, the place where one would expect AI to present evidence to defend its characterizations.

(In any case, the much more serious charge, the one more or less unnoticed by the press, is the charge found solely in the press release that the United States has resurrected the actual "practice" of Latin American-style "disappearances." I should have emphasized this more strongly in the Weekly Standard piece. No one could seriously dispute that "disappearances" is a term referring to the kidnapping and extrajudicial execution of persons, typically on political grounds. If you use the term Latin American "disappearances," you mean murders. That charge appears only in the press release and not in the report, and is not mentioned in either the introduction or the USA country section. I cannot fathom how an organization can responsibly and in good conscience make accusations that amount to organized murder in a mere statement to the press and then nowhere take them up again - nor can I fathom how an attentive press can fail to make enquiries about it. This, far more than the gulag controversy, seems to me Amnesty's most astonishing unsubstantiated charge.)

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The Weekly Standard has published on its website my article on Amnesty International's world report and its press conferences featuring claims of an American gulag. It will come out in the print edition of June 13, 2005. Read it here. This is also the place to post any comments you might have about the article. Excerpts:

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"With the release of its 2005 human rights report, Amnesty International got all the headlines that even an organization that lives for press attention could possibly hope to get. It did so by lobbing rhetorical hand grenades--each delivered in press statements but, revealingly and characteristically, not found in the text of the report itself. A strategy, that is, of maximum press exposure today for charges that do not actually figure in the document that will constitute AI's historical archive tomorrow. "Who controls the past controls"--well, no doubt Amnesty's Inner Party knows that particular aphorism and its provenance.

"First came AI secretary general Irene Khan's press statement releasing the report in London, which announced that the U.S. detention facility at Guantanamo "has become the gulag of our times." That she meant the word gulag in its original sense--Stalin's camps in the Soviet Union through which millions upon millions of political prisoners passed and where many died--is underlined by the reference in her next sentence to Guantanamo evoking "images of Soviet repression." When the Washington Post editorial page, among many others, refused to countenance a comparison of such profound incomparables, she responded in a letter accusing it, astonishingly, of quibbling over semantics.

"The "gulag" characterization was accompanied, however, by another allegation, nearly unnoticed in the press, yet if anything more outrageous in its implications. So-called "ghost detentions" by the United States, Khan said, do not merely evoke "images of" Stalin's camps. They actually "bring back" the "practice of 'disappearances' so popular with Latin American dictators in the past." Amnesty thus accuses the United States government of "disappearing"--kidnapping and secretly murdering--people. On what evidence? Well, none in Amnesty's actual report--but, in the press conference, it was said to be on the basis of not reporting all detainees, even ones who are not (in a perfectly defensible even if, to Amnesty, disagreeable reading of the Geneva Conventions) actual POWs who must be reported to the International Committee of the Red Cross.

"Then there was the remarkable call by William Schulz, Amnesty International's USA executive director, in his own press conference, for foreign governments to investigate and arrest U.S. officials, should they venture abroad, for their alleged complicity in torture. Apparently very serious stuff--the media certainly thought so. "Torture," however, in AI's expansive view includes even the mere holding of a detainee "incommunicado." Moreover, since AI apparently regards all the detainees as entitled to full POW protections under the Third Geneva Convention, any departure from mere "name, rank, and serial number" questions is, for it, grounds for foreign governments to arrest U.S. officials and military officers for war crimes. Suffice it to say that the United States does not agree that all detainees are entitled to Geneva protections, and to the extent that something as flimsy as this is the basis for Amnesty's call for foreign governments to make arrests of U.S. officials, those foreign governments might want to be very, very careful."

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"So. Stalin's gulag, updated for our times. "Disappearances"--a term meaning, of course, the secret murder of detainees. And calls for the arrest by foreign governments of a long, long list of senior U.S. officials as "high level architects of torture"--oh, sorry, merely "apparent" architects of torture, but worthy of arrest by foreign governments just the same. Strong words for a press conference--and yet charges nowhere appearing in the actual report. Did reporters notice? Did any of them think to ask Amnesty International why it thought charges much more serious and inflammatory than anything in the AI annual report itself should be made merely as part of a press conference? Did any of them ask where the evidence for these extraordinary allegations was in the report just handed them? Did any of them ask about the legal basis for AI's view of the reach of the Geneva Conventions? Not as far as I could tell reviewing Google and Nexis."

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"It has been hard to take Amnesty seriously for a long time, though the press, naturally, will be the last to grasp this fact. Amnesty has made serious factual mistakes--recall the scandal over the reporting of serious human rights violations in Guatemala that turned out to have been made from whole cloth by one of its researchers a few years ago. AI is a latecomer to the arcane world of the international law of war, and within the community of lawyers on these issues, its reputation is not very good--an amateur that depends largely on the ignorance of the press, its brand-name, and logo. In the United States, its leadership represents the far-left political fringe. And in Europe, it simply blows with the winds of fashionable left-wing politics. It has principles, to be sure, all no doubt deeply held--but they shift (and are deeply held, of course, even when shifting) with every breeze of leftish political fashion in Western Europe. One might say that Amnesty International is a serially principled organization.

"Still, with this year's press conferences, AI has slithered over a very big cliff in credibility in the United States, if not in Europe. Julian Ku, the Hofstra international law professor who blogs at Opinio Juris (lawofnations.blogspot.com), maintains that Amnesty is "veering dangerously close to Noam Chomsky/Ramsey Clark-land here." Indeed--and I would add Michael Moore-land and even Lyndon LaRouche-land. AI has not merely veered but plunged deep into those fever swamps--and is proud of it, as befits an organization whose agenda is set on the populist far left of European politics.

"Other leading organizations in the human rights business have been by degrees more circumspect. Human Rights Watch, for example, may feel the same as AI but is more cautious and has called only for a special counsel to examine allegations against U.S. officials. But it, too, is entirely capable of publicity-seeking tantrums on these issues. HRW's latest world report, for instance, opens with an essay by its executive director, Kenneth Roth, which compares Sudan and the United States, Darfur and Abu Ghraib. Roth opens in lawyerly fashion, claiming that "no one would equate the two." He then spends the rest of the essay doing little else. Khartoum's violations are more extensive, while Washington's are actually more insidious because it is more powerful. One is entitled to believe this, I suppose. But here's the rub. If you really believe, as Amnesty does, that Guantanamo is a Stalinist gulag, then you ought really to believe that its authors are the genuine Stalinist article--criminal leaders of a world-class criminal regime. After all, it is Stalins, Berias, and their henchmen who produce Stalinist gulags. Likewise, if you are Human Rights Watch and you really believe in the moral equivalence of Sudan and the United States, then surely you ought to regard U.S. leaders as nothing more than wicked criminals, to be arrested, and their regime isolated and sanctioned, if not actually invaded. Surely you should be urging the virtuecrats of Brussels and all of Europe to break off trade relations with the United States. You should be arguing for a breakup of NATO to isolate the human rights abuser, and perhaps even urging Europe to create the military might necessary to confront the deep evil of the U.S. regime. That's what morally serious people should be doing, after all, in dealing with Sudan and its leaders. We should be contemplating all that and more against the regime in Sudan. And if you really believe in the moral equivalence you rhetorically trumpet, then that's what a principled organization would demand regarding the United States, too.

"But that's not what the human rights organizations do or say in the fine print, is it? On the contrary. Human Rights Watch wants the U.S. government to do many, many things on behalf of HRW's own agenda. Not merely mend its evil ways and stop torturing as HRW defines it--no, the group has an extensive action agenda for the world's wicked superpower and for its human rights abusing military, one that it wants Washington to get moving on right away, wicked or not. To start with, HRW has said that someone--preferably the U.N. Security Council, but failing that a coalition that must necessarily involve the United States--should intervene in Darfur.

"There is much to be said for that position morally, and I admire Human Rights Watch for overcoming its bias for international organizations and against ad hoc coalitions of the willing, in the interests of the people of Darfur. But if the United States is what HRW says it is, why would the arch-criminals--in Washington, that is--care about doing anything so obviously, well, good? Which is it to be? The United States government and its leadership are a gang of criminals who should be isolated, sanctioned, arrested, and condemned as in principle no better than the undeniably criminal Sudanese government--but, by the way, it would be excellent if the Great Satan would also mount its noble charger, rattle its weapons, gird up its loins, and intervene to defend the people of Sudan. Please report to the International Criminal Court's dock in The Hague to be tried for torture and war crimes and what-not--but on your way, could you stop by Darfur, using military force if necessary to protect the people from genocide, make sure the peace treaty ending the war in the south doesn't fall apart, and don't do anything that we might regard as unnecessary collateral damage (we'll be watching, and we'll add anything we don't like to the list of your crimes). And, oh yes, be sure to arrest and bring the wicked Sudanese leaders and militias along with you to The Hague, so they can be prosecuted after we finish with you.

"There is something morally perverse about this. Can you really hold these positions simultaneously and still count yourself a human rights organization acting solely on principle? Unlikely. What it means in the real world, of course, is that these human rights organizations, whether Amnesty International or Human Rights Watch, simply indulge themselves in rhetorical overkill. They do not mean what they say. Amnesty instinctively recognized this by putting its nonsensical charges in its press releases and not in its report. Human Rights Watch announces this horrific moral equivalence--then it calls merely for a special counsel to investigate further. Neither group means what it said, even though, like clockwork, letters to the editor will be received next week insisting that they really, really did. We, for our part, instinctively know better.

"We also know that it is suicidally irresponsible for groups that depend on the moral force of their pronouncements to habitually say things they don't actually mean. Rhetorical inflation is a dangerous indulgence for the human rights movement. And it is a bad thing for the cause of human rights."

Relentless self-promotion! "Foreign law and the US constitution" ... my new article in Policy Review

Tacky self-promotion, I'm afraid - the blog as advertising marquee. I am nonetheless very pleased to announce my article, Foreign Law and the US Constitution, in the June-July 2005 issue of Policy Review, No. 131.

The article criticizes the US Supreme Court's Roper v. Simmons majority opinion, by Justice Anthony Kennedy, using foreign and unratified international law materials - comparative constitutional materials - to reach its decision. It also sharply criticizes Justice Stephen Breyer for endorsing the use of such materials from the standpoint of "pragmatist globalism" as a judicial philosophy. It ends by asking the question of whether the Supreme Court is really interested in remaining, in a democratically sovereign sense, "our court," or instead whether it has decided that the really cool thing to do is to leave behind that kind of mere parochialism and become a kind of global court, a court to the world:

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"More abstractly, this foreign legal material is absorbed into the judging process as pure text, free of the “embeddedness” within our judicial system that has created, in an organic, informal way, means and mechanisms to order and sort the myriad authorities available for citation by judges. And, just as important, it comes to our judicial system free of the parallel “embeddedness” of the foreign judicial system from which it came. The effect is to deracinate the judicial texts of other legal systems, to strip them out of the particular social settings that animate them for our own parochial purposes even as we grandly declare them to be “global” and “universal” purposes.

In so doing, however, we dishonor them — because we do not think their particularity, their “embeddedness,” matters, while we certainly think ours does. We act like the dilettante religious seeker, borrowing a little bit from this religion and a little from that, a piece of pantheism here, nature worship there, Jesus hither, the Buddha thence, and then call the shallow mish-mash “global” and “universal” religion.

We all know, in other words, within our informal ordering of authority, the difference between citing a Supreme Court case and a quotation from Bartlett’s — but as between, for example, the German constitutional court and the high court of India? To go by the justices’ citations, one wonders whether it is anything more than just whom they happened to meet over the years at international judicial conferences or, perhaps, the foreign languages they happen to read and speak. It is not irrelevant that Justice Breyer once cited the high court of Zimbabwe, apparently in order to give it more prestige, through association with the U.S. Supreme Court, in its own beleaguered political circumstances. Yet in the American University colloquium, he allowed that this was a mistake — presumably on the basis of finding out more about the facts of the regime and perhaps reflecting that, after all, a high court is still the high court of a state, in this case the vicious Mugabe dictatorship, even if that court seeks, within its practical bounds, to act well.

The point is that a judge can use any of this material how he or she will. Which is why Judge Posner, who even within a consequentialist ethic understands the need for constraint, has expressed grave concern at the invitation to judges to “troll deeply . . . in the world’s corpus juris” to reach a politically preferred outcome."

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"In the American tradition, the Constitution owes its legitimacy to the political community which enacted and sustains it, and not to anything exterior to it. Those who interpret its constitutional text owe their allegiance to that democratic, self-governing community. The inevitable result is that if there is a conflict between fidelity to the inside political community and the desires of outsiders — as there always will be — judges cannot satisfy the desires of outsiders, no matter how committed the judges also are to the undeniable virtues, in their place, of cosmopolitanism, urbanity, comity, globalism, universalism, and so on. Justice Kennedy sought, in Roper, to create a formulation in which that essential contradiction goes away by a little magic incantation, pretending that what fidelity to this political community requires of its constitutional interpreters and what outsiders desire of them will never be in irremediable conflict.

The problem with comparative constitutionalism for democratic constitutional self-government, then, is the provenance of materials used in constitutional interpretation. Provenance matters in constitutional interpretation, at least if democracy and self-government are important, because though the content of the material may be, so to speak, intelligent or unintelligent, sensible or stupid, prudent or imprudent, it is frankly secondary to the fact that it gives, even indirectly, the consent of the governed to its use and hence to the binding conclusions derived. Constitutional interpretation is not merely a matter of “best policy,” considered in a vacuum, but “best policy” as it has arisen through democratic processes — which may or may not have been successful in reaching the best policy. Without fidelity to the principle of democratic, self-governing provenance over substantive content in the utilization of constitutional adjudicatory materials, a court becomes merely a purveyor of its own view of best policy. Yet this is not solely an issue of an unconstrained Court. It is, more importantly, a violation of the compact between government and governed, free people who choose to give up a measure of their liberties in return for the benefits of government — a particular pact with a particular community, in which the materials used in the countermajoritarian act of judging them nonetheless have, in some fashion, even indirectly, democratic provenance and consent. In this respect, citing a foreign court will always be different from citing Shakespeare, and it does not help to say, well, it is not binding precedent. It is the source that is the problem.

None of this is confined, of course, solely to Supreme Court cases. On the contrary, there are good reasons to believe that, given the open invitation of Roper, the practice will rapidly spread throughout the federal courts. Why shouldn’t it? The use of these materials, Roper assures us, is after all a way of affirming fidelity to our constitutional traditions. The practice will now spread like an internet virus across the legal system, under pressure from both plaintiffs and defendants, liberals and conservatives, activists and those answering activists. Once one side has deployed them in litigation, the other side will have to respond to them and, crucially, find something to counterbalance them from the same corpus juris of foreign and international materials.

It will no longer do to say, in other words, you have cited a foreign case, but I have cited a U.S. domestic case, and that is self-evidently better authority. All that shows, should the judge be so inclined, is evidence of American parochialism. Roper tells U.S. judges, in effect, that they should strive not to be the Ugly Judicial American."

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"There is a second fundamental way to approach Roper, however. This is not as a matter of justification — not as a matter of judicial, legal, or political theory — but instead as sociology, empirical sociology and social theory. What, in other words, is the causal account of how six members of the Supreme Court came to embrace the use of these materials, and what does that account say about the Court, its values, allegiances, and self-conception for the rest of society and, indeed, the rest of the world? Will it continue to think of itself as “our” Court? Or will it see itself instead as a court for the world?

This essay, like the rest of the commentary on comparative constitutionalism, has touched upon the sociology only in passing — only indirectly, in references to judges as part of a new global elite. Yet in the long run, sociology and social theory might turn out to be more significant than legal or political theory to an understanding of the Roper doctrine’s origins in the Supreme Court, what the doctrine means for the Court’s conception of its own place in the world — and what, in turn, the Court’s new globalized sense of itself might mean for the democratic political community of the United States."

John Keegan on war crimes prosecutions and the ICC

See this important article, here, by one of the great military historians, John Keegan, expressing grave reservations and dissatisfaction with the International Criminal Court and similar civilian justice mechanisms, over what he calls the "rough justice" of traditional military court martial system of dealing with war crimes. Thanks to Opinio Juris for the link.

"There is now an International Criminal Court at the Hague, set up to try to punish war criminals. The law of war crimes has been incorporated into British law under the International Criminal Court Act of 1991 ... The United States has been much denounced for failing to fall into line with other states, particularly in Europe. Recent events suggest, however, that the Americans may have been wise to withhold their consent. The British are discovering why."

Une certaine idée de la France

It's always annoying to find out how much better Mark Steyn says it than me. Steyn on the French referendum / European constitution vote:

"Commies, Fascists, racists, eco-nutters, union thugs, subsidised farmers, middle-aged "students", Trotskyite professors and welfare spongers win one for the, er, good guys."

Read the whole Daily Telegraph column, here.

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Then there is the elevation of the poisonous Dominique de Villepin from foreign minister during the Iraq War to interior minister until yesterday and now prime minister. I have spoken with some kindness on this blog about de Villepin for the sole reason that he quotes the great French poet Rene Char as the title for his latest book, The Shark and the Seagull. However, we have to remember something very important about de Villepin. When he first came on the scene, I thought, a typical left-neo-Gaullist. They come, they go. And anyway, I have a deep admiration for de Gaulle, and I even admire Gaullism for its unabashed assertion of French values and interests.

Villepin is something quite different, however. He is a genuine, dyed in the wool Bonapartist. I don't just mean all the busts and portraits of the Great Man in his office, or even his weird book on Napoleon. Villepin really sees himself as the heir to Bonaparte, his reincarnation, in a way that de Gaulle never would have considered - would have found shocking, in fact, shocking to his une certaine idée de la France. Which is another way of saying that de Gaulle really was a great man - and I take that on board despite his deep anti-Americanism - while Villepin is a popinjay, but a dangerous one in power. Camus wrote in The Rebel about the dangers of the dandy in politics, carrying his romanticism and cult of personality into relations between nations - this is Villepin. Ambitious, ruthless, and a romantic dandy, cultifying Bonaparte in a way that even Julien Sorel would have found odious because he hopes to reincarnate him. For Villepin, the European constitution is an integral part of the Napoleonic project for France - France's neo-imperialism within Europe itself - and hence particularly annoying to be betrayed by the citizens of France in their Sunday vote.

I love to visit the de Gaulle museum in Paris - I took my daughter there last year. Napoleon's tomb, on the other hand, gives me the creeps.

O France, you have your modern day Bonaparte; where is your modern day Mme de Stael?

As I've written before here about Dominique de Villepin, he almost perfectly encapsulates Stendhal's remark about Julien Sorel in the Red and the Black:

"Julien fell asleep, dreaming of honors for himself, and liberties for everyone else."

(Then there is the minor issue that Villepin never owned up to in all those acrimonious Security Council sessions before the Iraq War - that through the oil-for-food program, Saddam seems to have believed that he had bought off France and Russia, and hence he was safe. Saddam and France miscalculated, believing that the US, obedient to the line put out by all those liberal internationalists, would not dare attack Iraq without Security Council approval. The oil for food bribery nearly worked - even as French diplomats dismissed any possiblity of a financial stake for France by saying that they had written off Iraq's debts to French companies long before.)

And if de Villepin can quote Rene Char, so can I, from Char's WWII Resistance journal, Leaves of Hypnos, No. 20 (this translation by Cid Corman):

"I think of that army of cowards with their appetites for dictatorship that will perhaps be seen again in power, in this forgetful contry, by those who survive this time of damned algebra."

(Update, Wednesday, June 1, 2005: Anne Applebaum, in her column today on the Washington Post opinion page, points out as well that France's new prime minister, de Villepin, has never stood for any electoral office, never stood in any democratic election. That was not, of course, true even of de Gaulle - but was true, so far as I remember, of Bonaparte. First Citizen, indeed.)

What Euro grandees do when their voters tell them "non"

(Update, Tuesday, June 21, 2005: Mark Steyn on the divergence between Euro-elites and Euro-voters after the French and Dutch no votes, here.)

(Update, Monday, June 6, 2005: See this superb article by the Weekly Standard's Christopher Caldwell on the meaning of the French and Dutch no votes, here.)

Well, if you are Peter Mandelson, formerly Blair's close advisor and currently EU minister for trade, you look stern and say ... "One country, even France, does not have a veto, but this vote cannot be ignored." (From the Guardian, via RCP, here.)

But of course, since the treaty requires that each and every EU country pass it, whether by referendum or parliamentary action, one country, indeed every country, does have a veto. As with so many matters in the EU, "democracy" turns out to be a one way ratchet - if you approve what the Euro grandees want, that's great, but if you don't approve, well, we'll just ignore you and continue the long march through the institutions. Hence the reaction of the president of the EU parliament, the president of the EU council, and the president of the EU commission, here, via EU Web Log, here:

"We fully respect this expression of the popular vote, which comes as a result of an intense debate. The result of the French referendum deserves a profound analysis, first and foremost by the French authorities. They need to be allowed sufficient time for this analysis. For their part, the European institutions will also have to consider, in due time, the results of all ratification processes.

Let us recall that nine Member States, representing almost one half (49%) of the EU population, have already ratified the Constitutional Treaty, including in one case through a largely positive popular vote, and that the majority of Member States have not yet had the opportunity to complete the ratification process."

So what do we make of this? On the one hand, the Euro grandees, we are told, respect the popular vote. On the other hand ... nine member states, with 49% of the population, have already ratified - although only one of those was actually a popular vote. The issue for the Eurocrats, it appears, is how to steamroll ahead with the project while not appearing to disrespect the French "non" vote. My guess is that the grand constitutional gesture will be put aside, and all the central aims will be done by some sort of deal-making in the backrooms of Brussels and Paris and Berlin.

It all has the air of Saint-Juste, arguing in the French assembly for the execution of the king. He recognizes that the merely popular will would spare the king but, taking a page from Rousseau, argues that the general will, the abstract will of what the people would do if they were fully rational, demands that the king lose his head.

(In one sense, the idea of the general will over the popular will is extremely, inevitably French, because Rousseau never really caught on with the Anglo-American democrats. On the other hand, there is a pronounced version of it in America today - it is what folks such as Amy Guttman, Dennis Thompson, and Cass Sunstein argue as "deliberative democracy" - the bold philosophical stroke by which merely popular sovereignty is ignored in order to do what the elites wanted done in the first place.)

Could it be that Jeb Rubenfeld's arguments for popular sovereignty, which he treated (consistent with all the evidence) as a fundamental difference between American and Continental political traditions, actually have some resonance even in Western Europe?

(Update, Sunday, June 4, 2005: Simon Jenkins, The Peasants' Revolt, here.

Nonprofit law and international NGOs (slightly off-topic)

I have been reading my way through Bruce R. Hopkins' new book, Nonprofit Law Made Easy (Wiley 2005). In another part of my professional life, I'm actually a nonprofit law lawyer, specializing in international NGOs and international philanthropy - this goes back to my days as general counsel for George Soros' Open Society Institute, and it continues with my work on the board of the Media Development Loan Fund and other groups.

Hopkins is a leading light on US nonprofit law - his treatise is the standard work on US charities law. This new volume is directed at nonlawyers - people contemplating formation of a nonprofit, nonprofit board members, and so on. It covers the basics in an extremely readable fashion - it explains the law and puts it into the context of how real world organizations have to deal with such issues as executive compensation, unrelated business activities, conflicts of interest, etc. Interestingly, it offers no footnotes, no citations to authority - but Hopkins is so reliable that for the non-lawyer there is no need. Even for an experienced nonprofits lawyer like me, I found it a refreshing overview to reread, a sort of checklist of issues to think about in dealing with an organization. From my own parochial point of view, I would have liked more about international philanthropy, but that's a very specialized topic.

In general, I believe that US nonprofit law has become too permissive in the area of what counts as a charitable activity, and has essentially blessed activities that are essentially campaigning as falling within the law. I would sharply curtail the ability of nonprofits to engage in political advocacy, even under the rubrics of "informing" and "researching" public policy issues, and press the model back to the actual delivery of charitable services, rather than the endorsement of a model that is largely about advocacy to get government to deliver services.

The power of the nonprofit lobby as a political force for its own interests is also very troubling, and it cuts across the usual political lines. I recall a few years ago the subpoena issued by some Congressional committee seeking information and transparency on nonprofit political activities - the nonprofit world responded, from the leftwing ACLU to the rightwing NRA by simply saying, we won't comply, and we have such important people on our boards of directors and such clout that you can't make us, being merely the people's elected representatives and all. There was such an element of outraged virtue - hey, we're civil society, we're the virtue organizations of society, and you're just a bunch of elected boobies, and y'all can go'n fuck yourselves. The ability of the nonprofit world to protect itself against the kind of transparency and accountability that exists even in the for profit world utterly amazes me. There are some moves toward greater accountability, but in general it is a very protected world.

Rational choice theory and laws of war

In setting out versions of realism in the just war debate, a question is arising in my mind as to whether the academic literature is yielding a separate version of realism in both jus ad bellum and jus in bello based around rational choice theory. I am thinking in particular of Eric Posner's writings on this subject, such as his 2002 jus in bello paper, A Theory of the Laws of War, at SSRN, here, or his 2004 jus ad bellum paper, with Alan O. Sykes, Optimal War and Jus ad Bellum, at SSRN, here.

This is a bit of a pedantic exercise, I suppose; the rational choice modeling in this papers is just a version of realism, instrumentalism with a specialized vocabulary. Intellectual writing about war has always had this kind of theorizing - it's hard to see how very different it is from Thucidydes or Hobbes or Machiavelli or Morgenthau. To call rational choice theory in just war argumentation a separate form of realist argument might really be thought merely to be elevating a technical vocabulary over results. And, anyway, there is a certain sense that the standard template of law-and-economics tools - to a man with a can opener, everthing looks like a can - has simply been shifted to this new area, with something like cookie cutter results. Even the sophisticated technical game theory has already been done ad infinitum by game theorists, philosophers, mathematicians, and so on in the modeling games over nuclear war during the Cold War - I'm not sure that rational choice will add that much to the modeling already worked out then.

If there is a new element to it, it seems to me to lie particularly in the jus in bello area - an area neglected in any case by realist instrumentalists - and even more particularly in the concept of reciprocity in the laws of the conduct of war. Rational choice theory naturally emphasizes reciprocity as a condition of stable laws of war - it flows out of its instrumentalism most obviously, but also out of its underlying contractualist way of thinking, and in that there is both an instrumentalist impulse and a genuinely normative one.

Reciprocity has fallen into disfavor among those who regard themselves as the moralist-guardians of the laws of war - the ICRC, the human rights NGOs, de-militarized Western European governments - on the grounds that the laws of war are to be regarded as individual human rights, existent and enforceable as inalienable individual rights, without regard to whether the organized parties to a conflict, states or non-state actors such as Al Qaeda, follow them. It doesn't matter that the other side violates them, you must follow them because they are rights of the individual fighters, their human rights in war. This seems to me a recipe for instability in the laws of war, and their eventual decline into irrelevance - and this is a conclusion which rational choice theory would seem to support.

But of course rational choice theory understands the importance of reciprocity not as a moral theory, but rather as a theory predicting the decline and eventual irrelevance of non-reciprocal standards. The question is whether one should make out the argument for the substantive content of jus in bello, at least in broad outline, on grounds of reciprocity. I increasingly believe it should be made on grounds not just of predictive rationality, for what will happen, but that it is a necessary element of the moral argument - moral realism that says, stable and agreed upon laws of war are morally important, and hence reciprocity is essential because without it, they will fall into disuetude. NYU law professor Noah Feldman's essay against the Bush administration on torture, interrogation, and the laws of war, in the New Republic this week, here (reg. req.), seems to me to fall exactly into the moral trap that reciprocity cannot matter - Feldman walks into it quite knowingly and quite deliberately, as a kind of moral argument, but it does not seem to me that he solves in any meaningful way the problem of reciprocity and the laws of jus in bello. I'll blog more on that article later - it is a profound article, despite my disagreements with it, and requires more space.

So, in a proper survey of varieties of argument over the ethics of war, does rational choice theory need its own separate niche as a version of realism? Given the direction of the academic literature, likely yes.

Memorial Day with Mark Steyn

Mark Steyn's Memorial Day column, from 2004, here:

"Memorial Day in my corner of New Hampshire is always the same. A clutch of veterans from the Second World War to the Gulf march round the common, followed by the town band, and the scouts, and the fifth- graders. The band plays "Anchors Aweigh," "My Country, 'Tis of Thee," "God Bless America" and, in an alarming nod to modernity, Ray Stevens' "Everything Is Beautiful (In Its Own Way)" (Billboard No. 1, May 1970). One of the town's selectmen gives a short speech, so do a couple of representatives from state organizations, and then the fifth-graders recite the Gettsyburg Address and the Great War's great poetry. There's a brief prayer and a three-gun salute, exciting the dogs and babies. Wreaths are laid. And then the crowd wends slowly up the hill to the Legion hut for ice cream, and a few veterans wonder, as they always do, if anybody understands what they did, and why they did it.

Before the First World War, it was called Decoration Day -- a day for going to the cemetery and "strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion." Some decorated the resting places of fallen family members; others adopted for a day the graves of those who died too young to leave any descendants.

I wish we still did that. Lincoln's "mystic chords of memory" are difficult to hear in the din of the modern world, and one of the best ways to do it is to stand before an old headstone, read the name, and wonder at the young life compressed into those brute dates: 1840-1862. 1843-1864.

In my local cemetery, there's a monument over three graves, forebears of my hardworking assistant, though I didn't know that the time I first came across them. Turner Grant, his cousin John Gilbert and his sister's fiance Charles Lovejoy had been friends since boyhood and all three enlisted on the same day. Charles died on March 5, 1863, Turner on March 6, and John on March 11. Nothing splendid or heroic. They were tentmates in Virginia, and there was an outbreak of measles in the camp.

For some reason, there was a bureaucratic mixup and the army neglected to inform the families. Then, on their final journey home, the bodies were taken off the train at the wrong town. It was a Saturday afternoon and the stationmaster didn't want the caskets sitting there all weekend. So a man who knew where the Grants lived offered to take them up to the next town and drop them off on Sunday morning.When he arrived, the family was at church, so he unloaded the coffins from his buggy and left without a word or a note to anyone. Imagine coming home from Sunday worship and finding three caskets waiting on the porch. Imagine being young Caroline Grant, and those caskets contain the bodies of your brother, your cousin and the man to whom you're betrothed.

That's a hell of a story behind the bald dates on three tombstones. If it happened today, maybe Caroline would be on Diane Sawyer and Katie Couric demanding proper compensation, and the truth about what happened, and why the politicians were covering it up. Maybe she'd form a group of victims' families. Maybe she'd call for a special commission to establish whether the government did everything it could to prevent disease outbreaks at army camps. Maybe, when they got around to forming the commission, she'd be booing and chanting during the officials' testimony, as several of the 9/11 families did during Mayor Rudy Giuliani's testimony.

All wars are messy, and many of them seem small and unworthy even at the moment of triumph. The sight of unkempt lice-infested Saddam Hussein yanked from his spider hole last December is not so very different from the published reports of Jefferson Davis’ capture in May 1865, when he was said to be trying to skulk away in women's clothing, and spent the next several months being depicted by gleeful Northern cartoonists in hoop skirts, petticoats and crinolines (none of which he was actually wearing).

But, conquered and captured, an enemy shrivels, and you question what he ever had that necessitated such a sacrifice. The piercing clarity of war shades into the murky greys of post-war reconstruction. You think Iraq's a quagmire? Lincoln's "new birth of freedom" bogged down into a century-long quagmire of segregation, denial of civil rights, lynchings. Does that mean the Civil War wasn't worth fighting? That, as Al Gore and other excitable types would say, Abe W. Lincoln lied to us?

Like the French Resistance, tiny in its day but of apparently unlimited manpower since the war ended, for some people it's not obvious which side to be on until the dust's settled. New York, for example, resisted the Civil War my small town's menfolk were so eager to enlist in. The big city was racked by bloody riots against the draft. And you can sort of see the rioters' point. More than 600,000 Americans died in the Civil War -- or about 1.8 percent of the population. Today, if 1.8 percent of the population were killed in war, there would be 5.4 million graves to decorate on Decoration Day.

But that's the difference between then and now: the loss of proportion. They had victims galore back in 1863, but they weren't a victim culture. They had a lot of crummy decisions and bureaucratic screw-ups worth re-examining, but they weren't a nation that prioritized retroactive pseudo-legalistic self-flagellating vaudeville over all else. They had hellish setbacks but they didn't lose sight of the forest in order to obsess week after week on one tiny twig of one weedy little tree.

There is something not just ridiculous but unbecoming about a hyperpower 300 million strong whose elites -- from the deranged former vice president down -- want the outcome of a war, and the fate of a nation, to hinge on one freaky jailhouse; elites who are willing to pay any price, bear any burden, as long as it's pain-free, squeaky-clean and over in a week. The sheer silliness dishonors the memory of all those we're supposed to be remembering this Memorial Day.

Playing by Gore-Kennedy rules, the Union would have lost the Civil War, the rebels the Revolutionary War, and the colonists the French and Indian Wars. There would, in other words, be no America. Even in its grief, my part of New Hampshire understood that 141 years ago. We should, too."

(The Chicago Sun-Times, May 30th 2004)

The ever tiresome Mark Malloch Brown slamming the US

(Update, Monday, June 20 2005: Report from the NY Sun of Malloch Brown renting a house from and next door to George Soros, here.)

I am no fan of Mark Malloch Brown's - UNDP chief now elevated to chief of staff to Kofi Annan, and chief pr flack in charge of rescuing Annan and the Secretariat from their own faults and unethical dealings. I understand why fans of an ever expanding notion of global governance are infatuated with him. What I do not understand is why anyone serious about UN reform thinks that he is part of the solution, rather than a glib, silver tongued part of the problem. He has his fans, yes; snake oil salesmen usually do.

His latest speech, a commencement speech at Pace University, is filled with such usual pious vacuities as the "global neighborhood" and complaints about the US not respecting international law - a complaint which is, to be sure, quite right, so long as one understands international law to mean what Mark Malloch Brown understands it to mean which is, roughly, what Mark Malloch Brown understands it to mean.

Well, the Associated Press report on the speech is here, and it is evident that Malloch Brown believes ever more firmly that the problem of UN reform is to make it accountable to the world's peoples, to the UN's own agencies and elites, and to like-minded international NGOs, as the Washington Post and Wall Street Journal reported last year. This is what passes for reformist vision within the UN itself, and is one of the nearly endless number of reasons why UN reform is doomed to failure. The policy issue is not really UN reform anymore, but what policy the US should adopt given the failure of UN reform. Getting rid of Malloch Brown would be a start, I suppose, even if a small one.

Amnesty International report slamming US

Read Peggy McGuinness and Julian Ku at Opinio Juris on Amnesty International's US-slamming report. The report (update: actually, its press releases) is noteworthy for two things - first, calling Guantanamo the "gulag" of the 21st century and, second, calling for foreign jurisdictions to arrest and try a long series of current or former US government officials for complicity in torture. I agree with the Washington Post's editorial today that calling Guantanamo a gulag profoundly distorts history - and I would add dishonors Stalin's victims. (Not that AI, these days, would care.) And I agree with Julian Ku that Amnesty International is sliding over the edge into that dubious territory occupied by Noam Chomsky and Ramsey Clark. In fact, I would say that AI has managed to slither right over the edge.

Can Human Rights Watch be far behind? After all, viewed merely as oligopolists in the NGO-virtue market, in competition for headlines and column inches in the MSM, HRW and Amnesty tend to egg each other on. The even bigger question is ...

Can the ICRC be far behind? Memo to the ICRC: You too can slither right over the same edge as AI, and the crazy heart of that kind of craziness is you'll never recognize that you've even gone over the edge. Trapped in the adulation of your fans, intoxicated by your own sense of virtue ... virtue-rhetoric has a dangerous tendency to create its own path.

(Update, Friday, June 3, 2005: See this defense of US Guantanamo policy by Charles Krauthammer, via RCP, here. And even EJ Dionne takes Amnesty to task, here, via RCP.)

(Update, Friday, June 3, 2005: I have an article on this topic, "An American Gulag," appearing in next week's edition of the Weekly Standard. It should be up on its website by Saturday, June 3, 2005.)

UN blue helmet forces using tougher war tactics - and a media double standard on criticism

The Monday, May 23, 2005 New York Times carried a very interesting front page story by Marc Lacey, "U.N. Forces Using Tougher Tactics To Secure Peace." Here, reg. req.

The article describes how the UN, responding over the course of a decade to criticism of its inability to prevent slaughters in Rwanda, Bosnia, and Somalia, has allowed its blue helmets to engage in far more robust military operations than before. The trend is especially noticeable in what has been the worst conflict in the world during several years, the multi-party war in Congo. It has the largest UN troop deployment in the world ... "Peacekeepers in armored personnel carriers, facing enemy sniper attacks as they lumber through rugged dirt paths ... are returning fire. Attack helicopters swoop down over the trees in search of tribal fighters. And peacekeepers are surrounding villages in militia strongholds and searching hut by hut for guns."

Sound familiar? Sound a little like Afghanistan and Iraq in terms of combat troops dealing with irregular fighters?

The article quotes a Bangladeshi colonel, "If we hear they are somewhere, we move in," he said. "We don't get them all the time, but they have to run. Their morale is shattered, and from a military point of view, that is everything."

Sound familiar?

"As they root out the insurgents ... United Nations soldiers ... have at their disposal tanks, armored personnel carriers, Mi-25 attack helicopters, mortars, and rocket-propelled grenade launchers - all of which are getting heavy use ... In March, after an ambush that killed nine Bangladeshi peacekeepers, the United Nations raided a crowded market near Loga to root out fighters preying on the local population. The peacekeepers also conduct what they call 'cordon and search' operations, which are essentially hunts for weaponry in remote villages."

Sound familiar? Lacey is fond of characterizing the insurgents as "preying on the local population" - he does it twice in the article, and while it is true, it is also true that the incident described above could be described as UN troops raiding a market after an attack on their forces, not the local population.

Who are these UN soldiers? In 1998, the article notes, "about 45% of peacekeepers came from Western armies. The figure is now less than 10%; most now come from the developing world. In Congo, most of the peacekeepers are Indians, Pakistanis, Bangladeshis and Nepalese."

***
It is a very good article. If the NYT's articles showed the same general benefit of the doubt toward US military forces in its wars, the NYT would be a more credible paper. The difference between Lacey's account and the usual NYT reporting on Iraq is a pervasive difference in acceptance of the legitimacy, at bottom, of the war. Lacey's reporting carries no sense - as there is in so much Times reporting on Iraq and Afghanistan - that the true purpose of reporting on the actual, on the ground conduct of forces, is actually driven by a second agenda, viz., to de-legitimize the conflict itself. Lacey comes across, if anything, as a little too credulous about the UN - he doesn't really question it except in the accepted terms of moral failure in Rwanda and Bosnia which it is progressively moving to remedy. It is the NYT's sacred "UN=Progress even when it screws up and allows child rape" narrative at work here.

Nor does Lacey adopt, in his assumptions about the UN military mission, the usual NYT strategic premise about Iraq, viz., that insurgents cannot really be defeated by conventional military forces. Instead he quotes a positive-thinking UN colonel in Congo about how his forces are defeating the insurgents' morale - but does anyone think the NYT would run an equivalent story on Iraq and simply leave it at that?

So where is the media scrutiny of the tactics and strategy of these UN forces from the standpoint of the laws of war? Does anyone besides the NYT or MSM really think that the national militaries making up the peacekeeping troops pay anywhere near as much attention to law of war issues in the planning and execution of military operations as the US does in Afghanistan or Iraq? Where is there any media attention to this question? Or is it the case, rather, that the fact that these soldiers happen to wear blue helmets confers a sort of media-immunity on them, at least until something comes out that especially shocks sophisticated Western media consciencies - the sexual abuse of women and children? The questions of collateral damage that might occur when you surround and search a village or neighborhood or crowded market that so preoccupy Western media in Iraq and Afghanistan do not seem to be on anyone's minds in reporting on Congo - exempt from criticism, as it were, because of the UN stamp of legitimacy in the minds of the media.

Lacey makes one reference to a local NGO, Justice Plus, which raised questions about collateral damage - according to the NGO, civilians died in the market incident, but Lacy does not follow it up, does not tell us how many died, nor does he tell us any other facts about an operation that might plausibly be characterized as a response to an ambush against UN forces and in which revenge might at least figure as a possibility. Instead, he immediately drops that in favor of telling a story about a girl horribly abused by militias two years before. It is a horrific and important story.

But let's be honest here. Would the typical NYT story on combat in Iraq have skipped the details about civilians deaths in a US operation that followed on an ambush of Americans, and instead immediately followed it up with a story about atrocities from two years before by Saddam's regime? Hardly.

My point, then, is that Western media has a double standard as between US forces and UN forces. It is not that Lacey's article is wrong - it is that it is nowhere as critical or questioning or skeptical as the equivalent MSM article on US forces in Iraq or Afghanistan would be.

(I should add that I support the UN's deployment in Congo, and the robustness of the engagement, very strongly. It is doing a generally good and necessary job. My concern is, rather, with the media double standard in coverage of these different conflicts.)

Irwin Stelzer on China's economic power; Martin Jacques on US-China fault line; Mark Steyn says nope

Irwin Stelzer, in a Weekly Standard article mostly about problems in the Euro-economies, here, adds this thought about China as a rising economic power:

"Which brings us to China, clearly a rising economic power. But there is an emerging view that the Chinese will grow old before they grow rich, such is the age distribution of the population."

Is this true? I don't know enough about the demographics to say, but it is thought-provoking.

(Update, Sunday, June 19, 2005: Martin Jacques in the Guardian, here, on why the US-China fault line will define global patterns of conflict in coming decades. Mark Steyn on why China won't, here.)

Renovation costs of UN headquarters buildings

As a former New Yorker, and someone who was involved in a massive office renovation in Manhattan, I have been fascinated with this developing story. There have been several posts around the blogosphere, but this story in the Weekly Standard by Powerline's John Hinderaker is a good place to start, here:

"In the midst of these controversies, the United Nations is proceeding with plans to upgrade its Manhattan headquarters. The organization's headquarters at Turtle Bay were completed in 1950 and renovated in the 1970s. The United Nations now believes that another renovation project is necessary, and has prepared a $1.2 billion plan to carry out the work....

If ... estimates are correct, only around 1,029,000 square feet will be renovated under the U.N.'s proposal. At a total cost of $1.2 billion, the project would then weigh in at over $1,100 per square foot.

Either of these figures is regarded by local real estate developers as stunning. The New York Sun reported on February 4, 2005:

'The United Nations has said its plans to renovate its headquarters at Turtle Bay will cost $1.2 billion.

That strikes Donald Trump as far too much. "The United Nations is a mess," the developer said yesterday, "and they're spending hundreds of millions of dollars unnecessarily on this project."
And he's not the only one. Several Manhattan real-estate experts told The New York Sun this week that renovating premium office space should cost a fraction, on a per-square-foot basis, of what U.N. officials expect to pay.

An executive managing director at the commercial real-estate firm Julien J. Studley Inc., Woody Heller, said a thorough renovation of an office building would probably cost between $85 and $160 per square foot.

An executive vice president at Newmark, Scott Panzer, said renovation prices could range between $120 and $200 per square foot. Mr. Panzer, who works with many corporations to redevelop their buildings for future efficiency and energy cost savings, put a price of $70 to $100 per square foot on infrastructure upgrades. Those would include heating; ventilation; air conditioning; replacing the central plant; fenestration (specifically, switching from single-pane to thermal-pane windows); upgrading elevator switch gears, mechanicals, and vertical transportation; improving air quality, and making security upgrades. On top of that amount, another $50 to $100 per square foot would take care of the inside office improvements.
The chairman of global brokerage at commercial real-estate firm CB Richard Ellis, Stephen Siegel, said high-end commercial renovation usually runs $50 to $100 per square foot. For a renovation that does not include new furniture--according to the 2002 Capital Master Plan, the United Nations' will not--but does provide for improved heating, ventilation, and air-conditioning equipment, as well as work on the building exterior, the cost would be closer to the $100 end of the range, Mr. Siegel said. Even accounting generously for upgrades that might be peculiar to the United Nations, Mr. Siegel added, he would set $250 per square foot as the absolute maximum.

It would appear, then, that hundreds of millions of dollars are unaccounted for, even on the most generous assumptions.

Trump has gone further, expressing the view that the expenses projected by the U.N. can only be the result of graft or incompetence.'"

Another ICRC issue - the new customary humanitarian law study

There is another matter related to the ICRC that needs also to be taken up - this is its new study of what constitutes customary international law, available online, here, or from Cambridge University Press.

The study has been released after years of preparation. The ICRC and the study's authors are making a round of universities and other venues - Chatham House, for example, in the UK - to present the study. It is a very long work, put together over years, and I am slowly going through it.

What I have understood of its methodology thus far - (only) 200 pages in so far - indicates that it is magnificent scholarship - if you accept all the stuff that the study takes as evidence of customary international law, of which I am highly skeptical. It includes, in particular, a vast amount of written material by such bodies as the UN Human Rights Commission, and states which have many opinions about war and its conduct but which never actually fight them, relying instead on the US security umbrella while seeking to tell the US how to fight. The premise seems to be that customary international law of war is established by he who writes the most and longest memos.

What I have read thus far is a long, long way from the canonical notion that customary law is established by state practice - what states actually do, and in particular what states actually do who engage in the activity in question - and opinio juris, the considered opinions of states as to what they consider to be legal obligations apart from the main body of international law obligation, treaties.

I will blog more on this subject as I read more - but, as always, the uncoordinated US government does not seem to understand that by saying nothing and allowing its response to drift with the wind over decades, it effectively ratifies the study's questionable views.

Moreover, the Bush administration does not understand that the central importance of this study is not about the actual conduct of US armed forces. It is instead about its use as evidence of customary international law by federal judges hearing Alien Tort Statute cases, which require as a predicate a violation of international law. This immensely expansionary work will make it much, much easier for a judge to conclude that there is a violation of non-treaty, customary international law - a violation of a kind that the US government might well reject as being part of international law. But the US will not have anywhere expressed its view. Where is the awareness of the US government of the ways in which this kind of material leaks across the bureaucratic lines of government?

(Update, Tuesday, May 24, 2005: I received a thoughtful email from Diogenes - I'm not sure where he/she blogs, and it hasn't yet been received as a comment here or at Opinio Juris, which has a related post by Peggy, here. Diogenes notes that I've read only 200 pages - well, now 300 - out of the what, four or five thousand total pages in the study - and that I should be careful about commenting. Fair enough, and I will spend much time over the summer going through the full text. And I will look forward to reading Diogenes' review of it in the New York Law Journal (s/he didn't say which issue, but I'll try to keep an eye out for it and reference it here. However, I did want to respond to one comment that does not require having read the entire study in order to comment - Diogenes says that the study was not intended as a commentary to be used in US court cases, such as Alien Tort Statute cases. Maybe that's right as far as the authors go - although I would be surprised if a lawyer as smart, savvy and connected as Louise Doswald-Beck was not perfectly aware of what it would be used for in the United States. Because I have had many conversations with people over the years about the study - NGO folks - who, once they got a sense of where things were going with the ICRC, made no bones about saying, "When is that ICRC study coming out? We need it for our ATS cases." (There was, to be sure, a period in which the unofficial NGO reaction from places like HRW was fear that it might tie their hands, but that passed as they figured out where it was headed.) Intended by the authors or by the ICRC for use in US courts or not - and I rather suspect that the ICRC knows perfectly well what effect it intends it to have in US litigation, whether ATS or Guantanamo habeas corpus or anything else - it will get used to strong effect in litigation, unless US courts take a bold and improbable step, in the absence of any coherent response by the US government, to restrict its application. It isn't really a matter of what was intended by the authors or the ICRC, but what the Center for Constitutional Rights thinks it can do with it, that matters. And that is irrespective of what the study says. In any case, I do think, even 300 pages in, that there is a strong observable tendency - and frankly undenied - in the study methodologically to privilege as sources things that are a long, long ways from state practice. This has been noted, too, by commentators already, such as some of the gently critical comments at the Chatham House meeting. But I will look forward to reading Diogenes' review.)

Wall Street Journal editorial on the ICRC

The editorial page of the Wall Street Journal today ran a sharp criticism of the International Committee of the Red Cross (ICRC) and its dealings with the US over detainees in Iraq, Guantanamo, and elsewhere, here.

I am a strong supporter of the ICRC and, in particular, at least at this point in time reject calls for the US Congress to reduce or condition funds for humanitarian relief work undertaken by the ICRC in some of the world's most desperate circumstances, as the Wall Street Journal, David Rivkin and Lee Casey, and others have done. Nevertheless, the internal culture of the ICRC is, I believe, in dangerous drift towards simply becoming another yapping Euro-NGO, competing with Human Rights Watch and Amnesty International for the same praise from European elites and the New York Times. The ICRC should understand that it can try to be Human Rights Watch or it can be the ICRC - it can't be both. And in any case, it will never succeed in being HRW or AI - and for the best of reasons.

It can't be those organizations because, unlike them, the ICRC has to deal with the real world of aid and relief and transportation of supplies and field hospitals and water supplies. HRW and AI limit themselves to talk and, increasingly, ideology. The ICRC will never be as clever, as nimble, as media-savvy and connected, as ... well, cool as those organizations. It will, however, save a lot of lives, over decades and indeed centuries, if it can resist the temptation to fashionableness. Problem is, alas, on current evidence, it is not resisting at all.

***
As the WSJ says:

As Bad as the Nazis? What the Red Cross thinks about the U.S. military.

(Monday, May 23, 2005 12:01 a.m. EDT)

The International Committee of the Red Cross is granted a privileged status to inspect the conditions of prisoners of war and other detainees in return for confidentiality. But in recent years it has demonstrated a habit of selective media leaks damaging to American purposes. This is the backdrop for two recent incidents that make us think the U.S. should reconsider the ICRC's role.

The first concerns a story we heard first from a U.S. source that an ICRC representative visiting America's largest detention facility in Iraq last month had compared the U.S. to Nazi Germany. According to a Defense Department source citing internal Pentagon documents, the ICRC team leader told U.S. authorities at Camp Bucca: "You people are no better than and no different than the Nazi concentration camp guards." She was upset about not being granted immediate access shortly after a prison riot, when U.S. commanders may have been thinking of her own safety, among other considerations.

A second, senior Defense Department source we asked about the episode confirmed that the quote above is accurate. And a third, very well-placed American source we contacted separately told us that some kind of reference was made by the Red Cross representative "to either Nazis or the Third Reich"--which understandably offended the American soldiers present.

We called the ICRC last Wednesday for its side of the story, and a spokesman in Geneva confirmed that "there was a serious misunderstanding between the ICRC's team leader and [Coalition] authorities during our last visit to Camp Bucca." The ICRC also confirmed that "the team leader subsequently decided to leave the Iraq assignment."

The spokesman added, however, that he "can categorically say that the team leader did not in any sense compare the detention regime in Iraq to what happened in the Third Reich." Pressed as to whether he could rule out those terms having been used, the spokesman declined, citing the ICRC's practice of confidentiality when it comes to relations with the governments with which it works.

However, a second episode later last week shows that the ICRC is only too happy to throw that same confidentiality rule out the window when it suits its ideological purposes. It did so in the wake of the false Newsweek report about the treatment of the Quran at Guantanamo Bay. The ICRC's Washington office volunteered to the world's media that it had given the Pentagon "multiple" reports from Guantanamo detainees about mishandling of the Quran, after which the detainee complaints had ceased. Pentagon officials confirmed the news, adding that the incidents had been both "minor" and "inadvertent."

In other words, the ICRC hides behind the confidentiality rule when being candid might embarrass its own officials. But it drops the same rule when it is in a position to embarrass the United States, however unfairly. News of the ICRC Quran reports last week came just as the U.S. was scrambling to undo the damage in the Muslim world from the discredited Newsweek story.

This behavior has unfortunately become an ICRC pattern. A pair of earlier ICRC reports on U.S. detention policies in Iraq and at Guantanamo were leaked to the press, and readily confirmed by ICRC officials in Geneva. The Guantanamo report, moreover, called the practice of indefinite detention at that prison "tantamount to torture," a phrase that has since been repeated everywhere by people wanting to damage the U.S.

As we pointed out at the time, that statement was absurd, given that the ICRC's main complaint about the Gitmo detainees is that they were not granted prisoner of war status. POWs are explicitly allowed by the Geneva Conventions to be held indefinitely--that is, for the duration of a conflict. Another problem has been the ICRC's pretense that its policy document called Protocol 1--once dubbed "a shield for terrorists" by the New York Times--is settled international law and applies to the U.S.

Which brings us back to the "Nazi" reference by that ICRC official at Camp Bucca. We wouldn't normally report the remarks, however offensive, of a single official. But after we started asking about the incident, we began to hear from other sources that someone was attempting damage control by alerting the ICRC's friends in the media and State Department about what we might report. One media proponent of the "torture" allegation against the U.S. warned on the Internet that we were out to smear the ICRC (which, we should add, is not the same as the American Red Cross).

No. We are trying to understand how a representative of an organization pledged to neutrality and the honest investigation of detainee practices could compare American soldiers to the Nazi SS. And considering the timing and content of several ICRC confidentiality breaches concerning the U.S. war on terror, it's fair to ask if similar views aren't held by a substantial number in the organization.

The world needs a truly neutral humanitarian body of the sort the ICRC is supposed to be. But the Camp Bucca incident--in addition to the leaked Gitmo and Abu Ghraib reports--is evidence it isn't currently up to the task.

Peter Berkowitz on new books on international law and sovereignty

Peter Berkowitz, of George Mason law school and the Hoover Institution, has written an important review of three leading books on the intersection of international law and sovereignty, here, in Policy Review:

Anne-Marie Slaughter. A New World Order. Princeton University Press. 341 pages. $29.95

Jack L. Goldsmith and Eric A. Posner. The Limits of International Law. Oxford University Press. 262 pages. $29.95

Jeremy A. Rabkin. Law Without Nations? Why Constitutional Government Requires Sovereign States. Princeton University Press. 350 pages. $29.95

"Among american law professors, international law became in the 90s and continues to be today what American constitutional law was in the 70s and 80s — the fashionable front line for advancing progressive social change. Yet even more than constitutional law, international law’s sources and authority are open to dispute. Even more than constitutional law, international law has an ineliminable and robust political dimension. And even more than constitutional law, international law invites an appeal to debatable moral principles in the controversies that arise under it. Despite these vexing features, the dominant view in the legal academy — which closely resembles the consensus among European elites and is associated with the European Union’s self-understanding — is that international law has an identifiable content and that its content corresponds to a progressive interpretation of government’s obligations at home and abroad.

The view is theory-driven and flies commonly under the flag of liberal internationalism. According to the liberal internationalists, a good portion of the structure and content of international law can be derived from reflection on our common humanity or, more precisely, our nature as free and equal rational beings. Such reflection generates an increasingly dense list of human rights that apply to all states everywhere; favors the strengthening of international institutions — such as the International Court of Justice, the International Criminal Court, and the un General Assembly and Security Council — to promote these rights; seeks an increased role for multilateral initiatives; and applauds the growing role of transnational nongovernmental organizations. In the United States, the liberal internationalist view draws support from the writings of America’s preeminent political theorist, John Rawls. In Europe, it gains intellectual heft from Germany’s foremost philosophical voice, Jürgen Habermas. Both theorize about the principles under which rational individuals, freed from partiality and prejudice, would choose to live and from which they can derive binding laws and equitable public policy. To be sure, international human rights lawyers are less likely to invoke the abstractions of Rawls and Habermas than they are to look to developing state practice, or the achievements of international institutions and the fruits of diplomacy, as evidence of what international law requires. Nevertheless, it is theory — or, perhaps more accurately, it is a moral and political conception to which Rawls and Habermas give theoretical expression — that determines for the scholars and jurists which examples of state practice, international institutions, and diplomacy they will appeal to as evidence of the structure and content of international law.

Critics raise a number of serious objections. First, officials of international institutions (to say nothing of ngos) charged with promulgating international law lack democratic accountability: Either they come from democracies but operate at several levels of remove from voters or, far worse, they come from autocracies in which the people whom they supposedly represent have never had a chance to vote for them in free and fair elections. Second, as most international institutions — possessing neither police force nor military — lack the capacity to enforce their rulings and resolutions, their legal pronouncements are impotent and make a mockery of the rule of law. Third, international institutions rely on the dangerous misconception that individuals do, or will come to, place a premium on global citizenship, and that states do, or will come to, place their obligations under international law and to global norms of justice ahead of their own national interest. In reality, the critics contend, individuals are inclined to put state, ethnic group, religious community, or tribal loyalties ahead of global citizenship. And considerations of raw power and refined national interest will, for states, always trump obligations that arise under international law."
***
I strongly recommend the whole review.

Are war and armed conflict in decline?

Gregg Easterbrook has an important and controversial article in this week's The New Republic here (sub req'd), arguing that war and armed conflict are in decline. Part of the basis of his argument comes from this study, Peace and Conflict 2005: A Global Survey of Armed Conflicts, Self-Determination Movements, and Democracy, by Monty G. Marshall and Ted Robert Gurr (you can download the pdf from the linked site).

I'm still reading the study, so I'm not yet ready to comment on whether I think it or Easterbrook is right in asserting that conflict has been in long term decline since the end of the Cold War. Nor am I ready to comment on what, if that is so, are the reasons for decline. But the article is fascinating, and so is the study, even if there is ground for skepticism. But Julian Ku at Opinio Juris has very interesting comments, here.

As for my view of the Newsweek scandal, well ...

I'm with the great Mark Steyn, here.

Update, Monday, May 23, 2005. Best of the Web (May 23, 2005) reports, here, on Newsweek's corrected version of treatment of the Koran at Guantanamo:

"Newsweek has followed up its retracted story alleging that U.S. servicemen had flushed a Koran down the toilet at Guantanamo Bay. It turns out that there is a record of Koran-flushing, but it wasn't Americans who did it:

'In three cases, detainees tried to stuff pages from their Qur'ans down their toilets, according to the Defense Department's account of what is in the guards' reports. . . . Prison commanders concluded that certain hard-core prisoners would try to agitate the other detainees by alleging disrespect for Muslim articles of faith'.

And what about "abuse" of the Koran by soldiers? Well, here's what Newsweek was able to document:

'In fewer than a dozen log entries from the 31,000 documents reviewed so far, said [Pentagon spokesman Lawrence] Di Rita, there is a mention of detainees' complaining that guards or interrogators mishandled their Qur'ans. In one case, a female guard allegedly knocked a Qur'an from its pouch onto the detainee's bed. In another alleged case, said Di Rita, detainees became upset after two MPs [military policemen], looking for contraband, felt the pouch containing a prisoner's Qur'an. While questioning a detainee, an interrogator allegedly put a Qur'an on top of a TV set, took it off when the detainee complained, then put it back on. In another alleged instance, guards somehow sprayed water on a detainee's Qur'an'.

That's it. What's more, after a December 2002 incident in which "a guard inadvertently knocked a Qur'an from its pouch onto the floor," the Guantanamo commanders "issued precise rules to respect the 'cultural dignity of the Koran thereby reducing the friction over the searching of the Korans.' "

Globalization and convergence in the international law community?

I was sitting through commencement at my law school today - congratulations to all the Washington College of Law graduates today and especially to all my students! - thinking a little bit about the claim by an increasing number of law schools in the United States to be "global law schools."

Partly it's a desire to jump on the bandwagon created by NYU law school, under the leadership of Professor Norman Dorsen, to create a global law faculty.

Partly it's an exercise in branding - globalization is a useful marketing slogan. That's true whether you are Pepsicola (although it helps if you don't deliberately spit in the eye of the sovereign state that makes possible your global hegemony, as Pepsi's president recently did at Columbia University in a commencement address, see controversy here) or whether you are a law school. After all, who wants to go to a law school that advertises itself as "parochial" or "narrow minded"?

Partly it's a business model - believing that a law school needs to tap into the global revenue stream, particularly as it both perceived as true and is true that educational quality at American law school's is higher than other places in the world, generally speaking.

Partly it's a strategy of high quality law schools - Duke, for example, in North Carolina or Washington University, in Missouri, or even Michigan - that are national in academic rank but regionally located - to make themselves relevant on the national stage by positioning themselves as "global" law schools, by hiring lots of European and other faculty internationally.

At bottom, it increasingly seems to me, this movement within law schools should be seen sociologically as an instance in the growth of the global bourgeosie - global elites of professionals in various fields, moving toward horizontal "global" connection - frequently with a corresponding disconnection, however, from the vertical relationships to their particular societies, nations, states, and even regions, that created them. Being bourgeois elites, they can't see that this is anything other than a good thing. I'll save for a later post why it has significant social downsides. (But I will suggest that this discussion about law school faculties unsurprisingly has cognates witht the argument over global elites and the use of global law in US constitutional adjudication, about which I have written much on this blog.)

More interesting to me, in connection with law school faculties, and was my topic of thought during part of commencement today, was whether the internationalization of law faculties - bringing in these global superstars, professors from the European Union, especially, to mingle with their international law colleagues in the United States, paradoxically produces greater homogenization of thought, intellectual work, academic work, rather than greater diversity. Apparently bringing together people from around the world, especially across the Atlantic divide, should increase the points of view, should increase the range of academic discussion, should increase the range of scholarly debate. But is this actually true? Suppose one were to figure out some clever way to analyze, for example, the intellectual output of the school most advanced in this regard, NYU law school - would one find that its massive increase in the number of foreign legal scholars had increased the range of its intellectual output, diversified it in any way?

Or, as an alternative hypothesis, might it turn out to have made it more homogenous - ever more brilliant restatements of conventional academic wisdom about international law? If you take seriously the idea that these globalization efforts by law schools are about the creation of a horizontally interlinked global bourgeoisie, one which is transgeographic and yet which shares significant intellectual and cultural assumptions, then globalizing the faculty might actually lead to less, not more, divergence of thought.

Calling Eric Posner: how do you devise an empirical measure of diversity of thought on international law topics by which to measure a faculty's output?

(Of course, this discussion also relates to the question of intellectual diversity on law faculties in the sense of liberal and conservative - the accepted, canonical position on law faculties is liberal internationalism, and the heterodox, particularly American counter-revolt is the movement to defend democratic sovereignty. These don't always and necessarily divide along liberal - conservative lines - e.g., a stalwart liberal such as Jeb Rubenfeld defending democratic sovereignty - but much of the time they do. Where at NYU does one find someone on the international law faculty willing to defend democratic sovereignty?)

Zarqawi justifying civilian deaths in Iraq terror attacks?

I am very curious about this short AFP article, here, which says Zarqawi seeks to justify the deaths of Iraqi Muslim as "human shields" and as, seemingly, not the deaths by terrorism as they obviously are, but instead permissible collateral damage under shari'a law:

***
Anti-US attacks in Iraq which also kill Muslim civilians do not violate Islamic law, Al-Qaeda's feared frontman in Iraq, Abu Musab al-Zarqawi said in a purported tape posted on the Internet.
The recording emerged as the US military said that leaders close to Zarqawi had ordered a recent car bombing campaign that has killed hundreds in Iraq.

"Our fighters only take the initiative of carrying out such operations in line with the principles of the sharia," said the voice attributed to the fugitive leader who has a 25-million-dollar price on his head.

"It is legitimate to shoot all infidels with all the kinds of arms that we have," said the voice, similar to those in earlier recordings attributed to Zarqawi.

"Killing Muslims who are serving as human shields (for the Americans) is allowed by the sharia," he said, backing his arguments with statements from several Muslim clergymen.

In the audiotape, Zarqawi mentioned the death of Pope John II -- which indicated that the message was recorded after April 2.

Many have been criticising the fact that guerrilla attacks in Iraq have been inflicting more victims among Iraqi civilians than US-led forces.

***
From the standpoint of Western moral theory, this version of "collateral damage" doesn't work - even if you were to treat them as military actions rather than simply for the terrorism that they are - because, after all, most of the attacks have not been on US forces with attendant collateral damage to civilians. They have instead been aimed at civilians as such.

Call me culturally insensitive, but it does not appear to be the case that Islam has worked out a systematic ethics of warfare. It is not alone in that - Buddhism, for example, doesn't need one as a religion of nonviolence; Judaism historically has had one only in certain respects, as the historical consequence of a diaspora people who until recently haven't had a state to run and, with it, an army. Christianity's development of an ethics of war was the result of a peculiar circumstance of inheriting state power, and then inheriting a bunch of squabbling kingdoms all with nominally the same religious commitments. And, of course, it is possible to say that Christian just war ethics, secularized into such moral concepts as "permissible" collateral damage, are just immoral accommodations with power, although I, for one, certainly don't believe that.

There is a scramble among Muslim clerics underway to formulate war ethics - but there will always be a difficulty with an ethics that begins, as so many of them seem to, with a proposition that it is not okay to kill and make war against fellow Muslims - independent of considerations of justice and just cause - but it is okay to make war against the infidel, at least if the cause is independently just.

I also find it interesting that during the Iraq war, several prominent Muslim clerics essentially rejected the collateral damage principle - essentially, the doctrine of the double effect - as a kind of sophistry to ease one's conscience about the killing of innocents. Fair enough - many have made that criticism consistently. But if you do that, then you have two choices. Either you can reject the use of force that might lead to innocent collateral damage - which is, practically, to say, renounce war and accept, also, that great injustice (such as the annexation and rape of Kuwait) might be maintained by the use of human shields and other means to force you to the choice of collateral damage or not fighting. Or, alternatively, you can say, let's be honest, we intend to fight, and we will abandon all pretense of justification of collateral damage - we will simply kill as seems to us effective, period.

Zarqawi has opted for the latter, of course, using terror against civilians in particular as what he sees as the most effective means of pressuring his enemy. But it is striking that even he sees some obligation to justify even terrorism aimed directly at civilians as being simply the killing of "human shields," civilians who happened to be in the way.

Notes on democratic sovereignty, post 1/3

(Notes on the nature of democratic sovereignty, drawn from a brief talk at a symposium on sovereignty at the University of Texas law school, April 2005. Three posts.)

1. What is "sovereignty" in relation to, and as against, "global governance"?

I will not attempt here to define sovereignty and variations in the concept of sovereignty – in the way that, for example, Krasner does in his realist book. Instead, I will simply take at face value Lincoln’s classic definition of sovereignty as “a political community, without a political superior.”

2. It is tempting, but a sleight of hand, to define away the problem of sovereignty by suggesting, as some writers writers have done, that sovereignty is compatible with strongly transnational and supranational notions of global governance if only we think of a “new” sovereignty, a concept of sovereignty that relies on the idea that we express our sovereignty by getting rid of it. It might very well be the case that a nation state benefits, net, by getting rid of its sovereignty – net gains in wealth, security, and so on – but it is still a loss of sovereignty, even if offset by benefits.

3. Sovereignty, in the traditional literature of international relations, has been associated with realism, for the reason that realists have asserted, as a matter of descriptive fact, that states seek (material) power and that sovereignty is an expression and channel of that power. Internationalism that undermines sovereign power, by contrast, has traditionally been associated with international law and idealism about law and international society, on the view that states do not merely seek to maximize their power and hence their sovereignty. It is important to note, however, that although the IR realist proposition that states seek power and, hence, typically aim to preserve their sovereignty is a descriptive proposition, the defense of sovereignty is usually a normative one, normative in the same way that the defense of internationalism at the expense of sovereignty is normative.

4. Despite the traditional divide of sovereignty/power realism and internationalism/legal idealism, the debate over global governance and sovereignty has actually shifted to a debate among forms of idealism. Idealism about global governance and order is no longer limited to the idealism of a kind of legal internationalism, international law internationalism, eroding-sovereignty idealism. At least within the United States, a new idealist movement is growing that supports, on normative and idealist grounds, the value of sovereignty. It does not regard it merely as an observable trait of nation states, but instead puts it forth as a proposition – sovereignty, or at least a certain species of sovereignty, is a good thing; it, rather than some for of transnational or globalizing order, is the right form for organizing and governing political communities on the planet.

5. In my review of Anne-Marie Slaughter’s 2004 book, A New World Order, here, I lay out a continuum of available idealist positions on the question of global governance. In summary fashion, they are: pure sovereignty, democratic sovereignty, sovereign state multilateralism, multilateral pooled sovereignty (looking toward global federalism), global governance through public private global policy networks, liberal internationalism, and parliamentary world government.

6. Each of these is an idealist position, a normative position. None depends on the realist-idealist debate; indeed, it is striking to see how much the realist position is today subordinated to the debate among these idealisms. I say this despite the fact that the hot new book is Jack Goldsmith and Eric Posner, The Limits of International Law – it purports to be a realist account of international law. Yet it is quickly evident that its version of realism goes so far beyond merely “material” power of states to incorporate the values of states and societies that this “realism” winds up being in support of one or another form of idealism. And, for that matter, perhaps the best explanation of the evolution of the views of a longtime realist such as Secretary Rice is that she has come to the conclusion that some form of idealism is the “new” realism – the old realism of stability was no longer stable, and the “realist” position could only work with an infusion of values and ideals, and treating them as the ground of a new form of stability. One may disagree with either the values or the ability to make them efficacious in the circumstances, say, of Iraq, but it might be thought the best explanation of this mysterious conversion apparently from realism to idealism. We are all idealists now – even if we are realists in the service of one or another idealism.

7. The central debate is between a particular version of the sovereignty positions and a particular version of the internationalist positions. That is, the central debate is between democratic sovereignty and liberal internationalism. What makes the democratic sovereignty position “democratic” is its insistence that democracy – constitutional democracy, including counter-majoritarian institutions such as courts – is the only acceptable basis for the legitimacy of a modern political community. What makes it “sovereign” is its insistence that sovereignty – the requirement that this democratic political community have no political superior – is the protective shell of power within which the true value, the one that really matters, democracy, is sheltered.

8. What makes liberal internationalism “liberal,” by contrast, is its insistence on universal liberal values, values of human rights. What makes it “international” is its insistence that the way to universalize these universal values is through international, and ultimately transnational and supranational, institutions of global governance.

Professor Slaughter, in her book, has ingeniously and heroically proposed a means to resolve the tension between these two positions, by proposing – normatively as well as descriptively – a new world order based on global government networks to enable the necessary global governance while preserving the democratic legitimacy of local political communities. I have argued, contra Slaughter, that this effort finally collapses in favor of liberal internationalism, at the expense of democratic sovereignty, but I will not repeat my argument here.