Thursday, December 29, 2005

The UN's former Benon Sevan

(Update, January 1, 2006. See the comment to this post, by anonymous, stating that in fact Cyprus has an extradition treaty with the United States. I have not independently verified this - the commentator says that it permits either state to deny extradition in the case of its own national, which is a standard part of many extradition treaties.)

Claudia Rosett in the Wall Street Journal on finding Benon Sevan at home on the island of Cyprus, which lacks an extradition treaty with the United States ... here. (On the right, pictured with Secretary General Kofi Annan.)

Mr. Sevan, I Presume
Congressional investigators find an Oil for Food figure hiding in plain sight.

Wednesday, December 28, 2005 12:01 a.m.
Wall Street Journal

At the United Nations, as a year of many scandals draws to a close, Secretary-General Kofi Annan has been trying to stuff some big unanswered questions down the memory hole--with mixed results. No, I'm not talking only about the files Mr. Annan's former chief of staff shredded during the Oil for Food investigation, or the discounted duty-free Mercedes allegedly shipped to Ghana in late 1998 by the secretary-general's son, Kojo Annan, under false use of his father's name and diplomatic perquisites. Hanging over all this is another mystery that despite the magnitude of the question seems of strangely small concern to the secretary-general: What has become of the former head of the U.N. Oil for Food program, Benon Sevan?

In the matter of the shredded U.N. files, which Paul Volcker's probe into Oil for Food described as being of "potential relevance," Mr. Annan during his press conference last week unilaterally revised the Volcker findings to say the destruction of these files "did not impede the work of the commission, so do let that go." As for the matter of the missing Mercedes, Mr. Annan, in trying to squelch the question, actually did much to put it on the map--by way of insulting the inquiring reporter as an "overgrown schoolboy." That wayward Mercedes has now become a handy emblem of even bigger questions still swirling around the U.N.

Which brings us to Mr. Sevan, the longtime U.N. staffer to whom the secretary-general entrusted from 1997 through 2003 the running of Oil for Food. That blew up into the biggest scandal in U.N. history--involving billions in graft and smuggling, a global network of kickbacks to Saddam Hussein, payoffs by Saddam meant to bribe members of the U.N.'s own Security Council, and assorted instances of alleged bribes to U.N. officials. One of those officials, allegedly, was Mr. Sevan himself, who while running Oil for Food took some $147,000 in payoffs from Saddam's regime, according to the Volcker committee. Mr. Sevan, through his Washington lawyer, has denied these allegations.

Mr. Sevan has not been called to account under any regime of law. Having been retained in New York by Mr. Annan after Oil for Food ended as a $1-a-year "special adviser" to assist in the inquiry into the program, Mr. Sevan skipped town in mid-2005, shortly before Mr. Volcker weighed in with his allegations on Aug. 8 of this year. Since then the U.N. has said that Mr. Sevan, despite the allegations against him, is entitled to collect his U.N. pension--which a spokesman for Mr. Annan confirmed to me again this week is "untouchable." The U.N. will not give out any information on Mr. Sevan's current location. At last week's press conference, when Mr. Annan was asked in passing about Mr. Sevan, he did not even address the question. Anyone inquiring further has had to make do with hearsay that Mr. Sevan has returned to his native Cyprus, which does not have an extradition treaty with the U.S.

But to such sketchy accounts, investigators for Rep. Henry Hyde's International Relations Committee are now prepared to add some illuminating details--starting with their encounter with Mr. Sevan himself, less than three months ago, in Cyprus. As it happens, they were not expecting to find Mr. Sevan in person. They went to Nicosia, the capital of Cyprus, trying to track down details of the case, including the fate of Mr. Sevan's deceased aunt, Bertouji Zeytountsian. By Mr. Sevan's account to Mr. Volcker, this aunt, while living in Nicosia as a retired government worker on a pension, had sent him funds totaling some $160,000 during the last four years in which he was running Oil for Food, 1999-2003. The day after the U.N. investigation into Oil for Food was announced, in March, 2004, Zeytountsian fell down an elevator shaft in her Cyprus apartment building. A few months later, she died.

Mr. Hyde's investigators decided while in Nicosia to have a look at the elevator shaft. On Oct. 14, a Cypriot police official showed them the way to the building. There, printed plainly on a mailbox at the entrance to the apartment block, was the name not of Mr. Sevan's aunt, but of Benon Sevan himself. After shooting the picture shown nearby, the investigators went up to the eighth-floor apartment where the aunt had lived. They knocked, and the door opened.

There stood Benon Sevan. As one of the investigators describes it, Mr. Sevan came to the door "in shorts, no shirt, and sandals, smoking a cigar." Apparently everyone was surprised to come thus face-to-face. Mr. Sevan was polite but did not invite them in. They chatted across the threshold. He told the congressional investigators to address all questions to his lawyers, saying, "My conscience is clear."

The investigators turned to go, and, as one of them recounts, as they headed for the stairs, Mr. Sevan told them, "You can take the elevator. It's fixed now."

The U.N., however, remains broken. This account of Mr. Sevan living in plain sight in Cyprus, as recently as October, raises even more questions than those Mr. Annan tried to duck at last week's press conference. Why has Mr. Annan, who waxed so indignant over a simple question last week from a reporter, remained so serene about the alleged deeds of Mr. Sevan, which touch massively on U.N. integrity, or lack of it, at the core? One of the virtues of the U.N. is supposed to be that it is an institution with global access, run by a secretary-general whose phone calls will be answered by national authorities world-wide. And while the secretary-general himself has no powers of law enforcement, he commands at least some attention--if he wants to--from those who do.

Does he want to? The same Kofi Annan who had no qualms about pronouncing "illegal" the overthrow of Saddam Hussein's corrupt and murderous regime has met Mr. Volcker's findings about Benon Sevan with such bland responses as his statement last week: "We have all looked at the report and drawn the right lessons from it, and we are trying to take steps to correct the situation."

There are provisions quite likely available for taking real steps to correct the Cyprus aspect of the situation. But someone has to act, and that someone may well be Mr. Annan himself.
The Manhattan District Attorney's Office opened an investigation into Mr. Sevan earlier this spring, and confirmed to me Tuesday that the investigation is continuing, but the New York prosecutor has no jurisdiction in Cyprus and cannot in any event bring charges against Mr. Sevan unless Mr. Annan lifts his diplomatic immunity--which it seems Mr. Annan has not done. A spokeswoman for the Cypriot mission to the U.N. says that "the issue" of Mr. Sevan is "on the desk of the attorney general in Cyprus, who is studying the case."

Mr. Volcker's committee, which is maintaining an office until at least March 31, 2006, to assist authorities inquiring into Oil for Food-related issues, did not reply to queries Tuesday about whether Cyprus has sought any information or cooperation. And Interpol, which might have the ability to help pursue the case across borders, cannot act except upon request of an existing investigation--either by national or possibly even U.N. authorities. One precedent might be Interpol's recent cooperation with the U.N. investigation led by Detlev Mehlis into the assassination of Rafik Hariri, the former Lebanese prime minister. But when I phoned Interpol's offices in France on Tuesday to ask whether the U.N. or any other authorities, including the Cypriot attorney general, had asked for help in the case of Mr. Sevan, Interpol referred the question back to that black hole known as the U.N.

That leaves Henry Hyde's investigators, one of whom tells me the attorney general of Cyprus, Petros Clerides, assured them during a meeting in Nicosia, in October, just before they came face-to-face with Mr. Sevan, that if given the evidence, Cyprus "would prosecute." But since then, says this investigator, Cypriot authorities have been "uncooperative." It seems that Mr. Volcker's committee will deliver the evidence only if asked, and there is no sign yet that Cyprus is asking. Mr. Hyde's investigators say they are "going to follow up" and "will be in touch with the Cypriot ambassador."

Perhaps when Mr. Annan gets done tracking down that missing Mercedes, he could lend them a hand.

(Ms. Rosett is a journalist-in-residence with the Foundation for the Defense of Democracies. Her column appears here and in The Wall Street Journal Europe on alternate Wednesdays.)

Tuesday, December 27, 2005

James Bone defends himself against Kofi Annan's attack

A couple of posts below, I feature a piece by Claudia Rosett discussing nasty attacks by Kofi Annan against British journalist James Bone in the course of a press conference. Rosett observes that the personal attacks had the effect of deflecting attention from the uncomfortable subject of a certain Mercedes-Benz. In this Wall Street Journal opinion page piece, journalist James Bone gives his own explanation of what happened and why, here:

(Update, January 29, 2006. Kojo Annan agrees to pay car duties in re the Mercedes Benz, here.)

Where Is the Car?
Why Kofi Annan said I'm not a "serious journalist."


Wall Street Journal opinion page
Tuesday, December 27, 2005

UNITED NATIONS--Kofi Annan, U.N. secretary-general and Nobel peace laureate, is normally the meekest of diplomats. He is so accommodating he once described Saddam Hussein as a man "I can do business with." These days he spends a good deal of time on the phone with Syria's Bashar al-Assad. Yet he seems to have problem with me.

It was with some amusement that I found myself the target of a decidedly undiplomatic tirade by the U.N. chief at a news conference last week. The usually mild Mr. Annan erupted in an ad hominem attack, calling me "cheeky" and belittling me as an "overgrown schoolboy." Although I have covered the U.N. in minute detail for The Times of London since 1988, and have known Mr. Annan for almost all that time, he suggested I was not a "serious journalist."

The cause of Mr. Annan's ire was a question I put to him about a Mercedes car that his son Kojo had imported into Ghana (and which cannot, now, be traced). The facts indicate that Kojo had bought the car in his father's name, thereby obtaining a diplomatic discount and a tax exemption totaling more than $20,000. The question about the car--to which Mr. Annan again refused to give a satisfactory answer--is part of the wider probe into his role in the U.N.'s Oil for Food scandal. Despite months of investigation, important questions about the integrity of public officials remain unanswered. If we are serious about U.N. reform--as Mr. Annan claims to be--they must be resolved.

It is a time-honored tradition at the U.N. to bury a scandal by conducting an inadequate inquiry and then declaring the matter closed. Mr. Annan did precisely that when news first broke in January 1999 of his son's involvement with a Swiss firm that won a U.N. contract in Iraq.

At the time, the secretary-general turned to a respected financial figure, Joseph Connor--a former chairman of Price Waterhouse World Firm who was then the U.N.'s under-secretary-general for management--to investigate. The inquiry--which had a crucial paragraph mysteriously added to Mr. Connor's signed version--took less than a day. It found that Kojo had resigned from the Swiss firm, Cotecna Inspection SA, before a U.N. contract was awarded to the firm. We now know that was false.

Before attacking me at his news conference last week, Mr. Annan bemoaned that the press had been misled by "deliberate leaks." Sadly, I can confirm that. I was shown Mr. Connor's confidential report--including the added paragraph--by a furtive Annan aide. I regret I incorporated that U.N.-sponsored falsehood into a piece I filed. ("Geneva firm has 'nothing to hide' in oil-for-food row": The Times of London, April 24, 2004).

Perhaps it should be no surprise then that when the Oil for Food scandal finally broke last year, Mr. Annan turned to another respected financial figure--former Fed Chairman Paul Volcker. Mr. Volcker's multi-volume report is now in jeopardy of becoming a partial replay of Mr. Connor's fiasco. Even after it was all over, Mr. Volcker told the Los Angeles Times "To this day, I still don't know" if Mr. Annan was aware of his son's business dealings with the U.N.

Probably the most egregious flaw in Mr. Volcker's report is its handling of a contemporaneous document referring explicitly to discussions with the secretary-general in Paris in November 1998 about Cotecna's bid. The internal company memo--a "trip report" written by Annan family friend and then-Cotecna executive Michael Wilson to other Cotecna officials who were also in Paris at the time--says in part: "We had brief discussions with the SG and his entourage." Despite the memo's use of "we," the Volcker inquiry held that Mr. Wilson did not meet personally with the U.N. chief, and concluded that "The committee has not been able to corroborate Mr. Wilson's claim that he had a meeting with the secretary-general about Cotecna's bid for the inspection contract as set forth in the Paris memorandum." (My italics.)

This is a distortion in one or Mr. Volcker's key findings: The memo said "we" not "I." Never did Mr. Wilson claim that he met personally with Kofi Annan. Indeed, the Volcker report itself says Mr. Wilson "repeatedly asserted" that he did not meet the secretary-general in Paris. Mr. Volcker's team did discover, however, that Kojo Annan, in Paris as part of the Cotecna contingent, met his father in the U.N. chief's room at the Hotel de Crillon on Nov. 28, 1998. The Volcker report failed even to address the possibility that the "we" in the memo might refer to talks between the U.N. secretary-general and his son, or between the U.N. chief and another Cotecna representative (i.e., one who was not Mr. Wilson).

This is where the missing Mercedes comes in. The Mercedes was purchased by Kojo Annan in his father's name four days before the Hotel de Crillon meeting--and about two weeks before Cotecna won the U.N. contract. The use of the U.N. chief's diplomatic status qualified the car for a $6,541 discount on the purchase price and a $14,103 tax exemption when it was imported to his native Ghana. Mr. Volcker's investigators found a memo on the computer of Mr. Annan's personal assistant asking him to authorize a letter to Mercedes. "Sir, Kojo asked me to send the attached letter re: the car he is trying to purchase under your name. The company is requesting a letter be sent from the U.N. Kojo said it could be signed by anyone from your office. May I ask Lamin to sign it?" the assistant wrote.

Neither Kofi Annan, his aide Lamin Sise, nor his assistant, Wagaye Assebe, can recall what happened, and the original documents have disappeared--but somehow the Mercedes was purchased with the diplomatic discount anyway. Abdoulie Janneh, the U.N. official who arranged the tax exemption in Ghana was recently promoted to U.N. under-secretary-general, in charge of the Economic Commission for Africa.
Amid the clutter of unanswered questions, one query has the virtue of simplicity: Where is the car? I have been asking this for weeks at the U.N.'s daily briefing. It was this question that triggered Kofi Annan's outburst. He clearly wants me to shut up. I'm afraid, Mr. Secretary-General, that would be the wrong thing for me to do. Every schoolboy knows that.

(Mr. Bone is New York correspondent of The Times of London.)

Monday, December 26, 2005

Shame on Robert Kuttner for using Lincoln for cheap shots at Bush

Robert Kuttner engages in that most dangerous of all ideological games in American politics - "What would Lincoln have done?" - as a means of baiting George W. Bush. Here, in the Boston Globe.

It is not that there are not potentially lessons to be drawn from Lincoln and the Civil War for George W. Bush and the war on terror and Iraq and all the rest. Kuttner wants to argue that Bush lives in a bubble and that Lincoln did not. He wants to argue that Bush simply goes his own way while Lincoln waited and pushed indirectly, patiently for the moment when he could press for partial and then full emancipation. Etc., etc.

(Let us leave aside Kuttner's questionable historical readings. I do not think, for example, that the weight of serious contemporary scholarship would accept that Lincoln was waiting for the moment in public opinion when he could press for partial and then full emancipation, at least not in the way in which Kuttner means it for purposes of chastising Bush. Emancipation was forced as a public policy upon the president, irrespective of his personal views. Charitably, Kuttner is out of his intellectual depth. It has been a while since I have read Kuttner closely, and the decline from his best early days of The American Prospect is notable, for which I am sorry. My own views on Lincoln and, especially, the Second Inaugural, are found in this Times Literary Supplement essay, here.)

One might read the history of Lincoln and the Civil War quite differently than Kuttner does. Kuttner and his antiwar confreres, for example, might seem like shining examples of Copperhead Democrats, eager for peace no matter what, having concluded that Lincoln was a simpleton whose only character trait was a stubborness and resistance to reason that had already cost the lives of hundreds of thousands in a lost war. As for democracy in the Middle East, Kuttner et al. might be thought to resemble those in Lincoln's day who thought that blacks were simply incapable of participating in self-government. As for religion, Kuttner et al. might be thought to resemble most closely the anti-war Democratic newspapers of the day - along with many of the sophisticated newspapers of Europe - who were appalled by the religiousity of the Second Inaugural Address and accused its author of offering "puritanical" theology in place of public policy, and who believed that Lincoln was invoking the mantle of the Almighty in order to shield his own policies from criticism - Lincoln was guilty, in their eyes, of being at once a believer and a hypocrite, which is not that different, so far as I can tell, from how Kuttner sees Bush. As for the belief that Lincoln acquainted himself with a wide range of opinion through his wide reading, whereas Bush lives apart from newspapers and criticism - well, ironically, both elite Radical New England opinion and elite New York Democratic anti-war opinion believed that the ill-educated Lincoln lived in a world shaped by Western frontier prejudices and that he was simply outside the mainstream of what American and European elites "knew" to be the real world, not so different from what Kuttner et al. in the "reality-based community" like to think of themselves and President Bush.

Etc., etc. One can spin these parallels on and on.

Both those interpretations, however - Kuttner's sneering, condescending little Bush-the-moron Christmas missive and my abbreviated alternative above - are quite wrong. It is a mistake to look to the Redeemer President for vindication or repudication of particular policies in the present day, however tempting that exercise is for pundits. Fools rush in, etc. The reason is not that Lincoln and the Civil War are outside of history and outside of our ability to learn from them for the present. The difficulty is that we have placed Lincoln, through his martydom, outside of history, in the ordinary, day to day sense, and above all, in the partisan sense. It was precisely the consequence of what Stanton said, in announcing Lincoln's death, "Now he belongs to the ages."

Because Lincoln belongs to the ages - because we have accepted that he belongs to the ages - he is, and in the hands of intellects wiser than Kuttner's, above the fray. You invoke him in support of your petty quarrels and interpretations and minor vendettas at the risk of weakening your own position or, worse, weakening Lincoln's. And this is what Kuttner has done. Lincoln cannot, should not, be invoked ever in a partisan way in the moral discourse of the United States, because the whole point is that he belongs to all of us. And in an explicitly religious, redemptive way. That is to say, of course any American and American leader should consider carefully and meditatively and historically what he or she thinks Lincoln would have done, how close to the example of Lincoln he or she hews. It is, in this intensely partisan age, a necessary meditation but necessarily and best a private one. And it is never, in the moral discourse of this country, fit grist for the partisan mill. Lincoln is never an opportunity for saying, as Kuttner does in an ugly little parody of the Second Inaugural, that "our nation, in a new birth of freedom, will survive even George W. Bush."

Shame on Robert Kuttner for cheapening our collective heritage.

(Update, Monday, December 26, 2005. My goodness, the power of an Instalaunch! Thanks, Instapundit, and also RCP. I should also add that Kuttner's mistakes notwithstanding, the book he invokes, Team of Rivals: The Political Genius of Abraham Lincoln, by Doris Kearns Goodwin, is superb and well worth reading. I have also just finished William C. Harris, Lincoln's Last Months, which came out from Harvard UP in 2004. It is particularly good on the reception of the Second Inaugural Address, reaction to it from newspapers in the US and abroad - curiously, it is somewhat better on that topic than the two books I reviewed in the Times Literary Supplement on the Second Inaugural, linked above in the post. I should add that part of my own interest has been in the course of several years of academic research for a short, academic press book working titled War and War's Ethics in Lincoln's Second Inaugural Address. I do not pretend to be a Lincoln scholar and certainly not a historian - I have read widely and deeply, over many years, in the secondary scholarly literature, which is appropriate for my research on the ethics of warfare - a non-historical, philosophical discussion that compares certain themes in the Second Inaugural with ideas found in two non-American sources, Albert Camus' The Rebel and Rene Char's Leaves of Hypnos. Somewhere back at the beginning of this blog I discuss each of them. It's not a very accessible discussion, but I hope will shed some light on the ethics of warfare generally.)

(Update, Monday, December 26, 2005. Other reactions to Kuttner, here, at Discriminations. And here. And Powerline, here. Done With Mirrors, here. And the Mahablog is not so impressed with this post, and the commentators on it even less so, here. Thanks to Hugh Hewitt for taking time to read the original Times Literary Supplement essay, noted at his blog, here.)

(BTW. My view is not that Lincoln is beyond history in the sense that he cannot be seen with all his limitations and faults, within the context of his time and even within ours, although there is a limit on how much mileage you can get out of criticizing someone who lived 150 years ago for not having today's political views on today's political issues. It's not the canonization of a Lincoln outside his own history. I have learned a lot, for example, from Michael Lind's revisionist Lincoln book, What Lincoln Believed, both about Lincoln's debt to Henry Clay and, in consequence, the limits of Lincoln's views on race. It is, rather, that people like Kuttner, who who invoke Lincoln do so not in order to invoke the Lincoln of history, but rather to invoke the sacred mantle of Lincoln as cover for partisan purposes, to make it impossible to criticize their views by invoking Lincoln. That's what Kuttner did in his essay. That's what it means to say that Lincoln is above the fray - it is not that he is beyond criticism within the historical record. It is that Lincoln cannot be invoked for purely partisan ends without betraying what he means within the moral history of the Republic. Kuttner can't really understand that, because it's impossible, seemingly, for him to comprehend that the moral history of this society is more than ... his story. )

Friday, December 23, 2005

WSJ on 4th Circuit Luttig's Padilla decision of December 22, 2005

WSJ editorializes on the unanimous three judge decision authored by Judge Luttig, 4th Circuit, flatly rejecting the government's request to vacate the judgment and transfer Padilla to the ordinary criminal justice system, here:

Padilla Put-Down
Forcing the White House to defend its own convictions.

Friday, December 23, 2005 12:01 a.m.
Wall Street Journal (editorial)

The Bush Administration is sometimes its own worst enemy when it comes to fighting for the tools it needs in the war on terror.

In that category we'd put the President's failure to defend the need for aggressive interrogation of foreign terror detainees, culminating in his recent cave-in on Senator John McCain's "torture" amendment. Signing up for a six-month extension of the Patriot Act, rather than sticking by his demands for long-term renewal, could turn out to be another. Last month's decision to abandon the enemy-combatant case against Jose Padilla in the U.S. Supreme Court is a third example.
Fortunately, in the Padilla case, an appeals court is now forcing the Administration to show the courage of its own convictions. In an extraordinary ruling issued Wednesday, a unanimous three-judge panel of the Fourth Circuit Court of Appeals in Richmond, Virginia, rejected the Department of Justice's request to vacate its earlier ruling, which said that the President "unquestionably" has the right to detain U.S. citizens who happen to be enemy combatants--a right the Administration has said repeatedly is indispensable to fighting this war.

It also rejected the Administration's request to transfer Padilla from military to civilian custody so that he could answer criminal charges brought last month in a federal court in Miami. The case now continues its course to the Supreme Court, which can either hear the case (as expected) or let the Fourth Circuit's ruling stand.

This week's Fourth Circuit opinion is scathing, and a Washington attorney of our acquaintance says, "I have never seen that kind of language addressed to the government." Writing for the court, Judge Michael Luttig says that the Administration's actions leave the impression that Padilla has been held "by mistake" and give the "appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court." This case "presents an issue of such especial national importance as to warrant final consideration by" the High Court.
We'd agree that there is a vital constitutional principle at stake here, and we hope the Supreme Court takes it--despite the government's apparent ambiguity about the case. Over the past three and a half years, Padilla has become a liberal icon--an "innocent" man who has been held "illegally." The public debate has been largely about one man's rights and not about the right of the rest of us to be protected from enemy attack.

In its 2004 Hamdi decision, the Supreme Court upheld the authority of the President to detain enemy combatants, including U.S. citizens. The difference between Hamdi and Padilla is that the American in the former case was captured on a battlefield in Afghanistan and the citizen in the latter was picked up in the U.S. Given the nature of modern technology and terrorist strategy, where the U.S. homeland is a major target of attack, the enemy's location is an illusory distinction.

Hamdi was decided 5-4, with then Chief Justice Rehnquist and Justice Sandra Day O'Connor in the majority. Predicting a Supreme Court outcome is always tricky, but it's hard to imagine Chief Justice John Roberts and, presumably, nominee Samuel Alito reaching a different conclusion.

In any event, the country and the Bush Administration could both use some clarity on these issues. Critics of the Bush strategy shout "illegal" at every turn, even though the Administration has usually prevailed in court. We're glad the Fourth Circuit is forcing the Administration to defend the Presidential authority on national security that we've long believed is vital to protecting Americans.

The indispensable Claudia Rosett on the UN, Kofi Annan, and a certain Mercedes-Benz

Here is Claudia Rosett on Kofi Annan's tantrum in news conference against the London Times's James Bone for daring to ask about oil-for-food and the never properly accounted for Mercedes-Benz for Kofi Annan's son. From the National Review Online, December 2, 2005:

(Update, 29 January 2006. Kojo Annan agrees to repay duties on Mercedes Benz, here. )

December 22, 2005, 1:25 p.m.
The National Review Online
Claudia Rosett

The Blow-Up
Annan insults and distracts.

In a telling moment at a United Nations press conference Wednesday, Secretary-General Kofi Annan lost his temper — hurling insults at a widely respected senior member of the U.N. press corps. Beyond the who-what-when-where-how of this episode, the big question is: Why?

The broad answer is that the U.N. Secretariat, despite all the recent talk of reform, evidently remains a place of secrecy and privilege, run by high officials who don’t mind talking about their global goals and grand legacies, but find it highly irritating to be held to normal standards of good governance or subjected to anything resembling the workings of a free press. And in this particular case, given the ferocity of Annan’s reaction, one has to wonder if there is even more to it.

"Behaving Like An Overgrown Schoolboy"

The occasion was Annan’s year-end press conference, at which Annan had just described his own job, and by extension himself, as “perhaps chief diplomat of the world.” It is a role, he said, that requires “a thick skin” and “a sense of humor.” But Annan displayed neither when James Bone of the London Times began asking questions referring to two of the scandals that continue to bedevil the secretary-general: the saga of Oil-for-Food, and the cameo of a Mercedes-Benz allegedly bought and shipped under false use of Kofi Annan’s name and U.N. status by his son, Kojo Annan.

Instead of answering Bone, Annan cut him off, first calling him “cheeky,” and then interrupting him again to say: “Hold on. Listen, James Bone. You have been behaving like an overgrown schoolboy in this room for many, many months and years. You are an embarrassment to your colleagues and to your profession. Please stop misbehaving, and please let’s move on to a more serious subject.”

Hold on, indeed. In the interest of serious subjects — U.N. integrity, for example — let’s pause the tape right there. It is no small matter when the secretary-general of the U.N. slings personal insults in a public forum. Bone is a skilled and serious reporter, regarded not least by some of the chronically imperiled whistle-blowers in the U.N.’s own ranks as a credit to his trade. At the press conference his colleagues rallied to his defense, with a spokesman for the U.N. Correspondents Association telling Annan that “James Bone is not an embarrassment,” and “He had every right to ask the question.”

Quite right. But somewhere in the excitement, not only Annan’s temper, but Bone’s question got lost. It’s an old rule of thumb in the reporting trade that when someone answers a good question with a bad attitude (especially someone as seasoned as the chief diplomat of the world), there is probably something there that deserves a closer look. In this case, it might just be that Mercedes.

About that Mercedes…

Bone’s question involved sludge turned up by Paul Volcker’s U.N.-authorized inquiry into the U.N. Oil-for-Food program for Saddam Hussein’s Iraq. Among other things, Volcker examined the work done by Kofi Annan’s son, Kojo Annan, for a Swiss-based private company, Cotecna Inspection, which in December, 1998 won an important U.N. contract to inspect Oil-for-Food relief goods imported into Iraq. While digging into these matters, Volcker came across evidence that toward the end of that same year, in November, 1998, Kojo Annan allegedly misused his father’s name and U.N diplomatic status to buy a Mercedes-Benz at a discount in Europe and ship it duty-free into Ghana. There, the U.N. resident representative at the time certified to the Ghanaian customs authorities that the Mercedes was for “personal use by Mr. Kofi Annan, U.N. Secretary-General” — thus obtaining a customs exemption on the car of more than $14,000.
That discovery raised the question of whether Kofi Annan himself had been complicit in the alleged misuse of his own name and U.N. privileges. According to Volcker, Kofi Annan when asked about the deal claimed ignorance, saying “he did not know that Kojo Annan was buying a Mercedes-Benz in his name.” Volcker reported that he had found no evidence to contradict Annan. And there Volcker’s inquiry abandoned the trail, leaving the fate of the Mercedes itself a mystery.

But unless the Mercedes simply vaporized — lock, stock and documentation — upon arrival in Ghana, there is presumably more to the story — quite possibly involving paperwork with a U.N. stamp. So, for months, Bone and a number of other reporters, myself included, have been asking Annan’s aides what became of the Mercedes — and getting no answer except that Annan’s office does not consider this a U.N. matter.

Indeed, before Bone spoke up at Wednesday’s press conference, CNN had lobbed a softball version of the Mercedes question, to which Annan had replied, at some length, that he felt no obligation to provide any information related either to the car in particular, or the Volcker reports in general. On the Mercedes, he said: “My son and his lawyers are dealing with it. If you want to know more about it, please direct the questions to his lawyers or to him. I am neither his spokesman nor his lawyer.” On Volcker’s findings, Annan delivered what has become the U.N. Secretariat’s refrain: “The report of the Volcker commission is clear, and you have all read the thousands of pages of that report. And I am not going to rehash it here.”

So Bone tried to focus the question, seizing the chance to ask Annan directly: “The Volcker report says that the Mercedes was bought in your name, so as the owner of the car, can you tell us what happened to it and where it is now?”Rather than answer, Annan chose to insult — and distract.

Unanswered Questions Accumulate

While we wait for Annan to reconsider his response, or perhaps for the Mercedes to heave into view on some far horizon, it might be illuminating to revisit at least a small sample of the items that Annan cannot be bothered to rehash.

For instance, near the beginning of Wednesday's press conference—before he attacked James Bone — Annan had already rebuked the entire press corps for missing the story of massive graft and smuggling by companies and countries doing business with Saddam’s U.N.-sanctioned Iraq. It seems Annan has forgotten it was his own Secretariat to which, in his own words as he shut down the program on Nov. 20, 2003, the Security Council had “entrusted” the running of Oil-for-Food, with its “mandate” to “assume temporary custody of Iraq’s oil exports and apply the revenue to a humanitarian program.” And it was Annan’s own Secretariat that as a matter of deliberate policy kept secret the names of all the companies doing business with Saddam, along with almost all other vital details of the deals. This was information that would have gone far to expose the corruption, but anyone asking the U.N. for it at the time got much the same response as anyone now asking about the Mercedes.

And while Annan spoke up often to urge that Oil-for-Food be expanded, sped up, and shored up with billions of Iraqi relief dollars spent on new oil equipment, he somehow neglected to inform not only the press, but even the U.N. Security Council, about the massive graft and oil smuggling he now decries. Don’t take my word for it. Rehash Volcker, who reported that the Secretariat’s responsibilities under Oil-for-Food included “monitoring sanctions violations by the Iraqi regime,” and that Annan and several of his top aides “were well aware of the extensive information regarding oil smuggling by the Iraqi regime,” which “blatantly violated the sanctions regime in Iraq, and undoubtedly had a negative impact on the implementation of the humanitarian program.” But Annan never shared that at the time with the press corps he now reproaches for failing to make a major story out of it.

Indeed, Annan seems to have forgotten that far from giving him the “exoneration” he has claimed, Volcker issued “adverse findings” against Annan on a number of serious counts, including not only his failure to inquire adequately into his own son’s U.N.-related ventures; but also his own inappropriate delegation of Oil-for-Food responsibilities, his “inadequate response to and investigation of reports of Iraqi abuses and corruption of the Programme,” and assorted other failures of attention and oversight. “In sum,” reported Volcker, “the cumulative management performance of the Secretary-General fell short of the standards that the United Nations Organization should strive to maintain.”

Backed up by thousands of pages produced by a $35 million 18-month investigation, that is perhaps a way of diplomatically suggesting that Annan himself is — how to put this? — an embarrassment to his colleagues and his profession?

As for the Mercedes, if Kofi Annan still knows nothing of its fate, it seems high time he bestirred himself to find out. A handy starting point might be the following chronology of the busy month of November, 1998, which can be pieced together from Volcker’s report of Sept. 7, Volume IIII:
Nov. 3, 1998: Kojo Annan contacts a Mercedes-Benz representative in reference to shipping a car from Europe to Ghana for the secretary-general’s use.

Nov. 13, 1998: Kojo Annan contacts Kofi Annan’s personal secretary in New York, Wagaye Assebe, who records Kojo’s message in a note to Kofi Annan, dated that same day, and beginning: “Kojo asked me to send the attached letter re: the car he is trying to purchase in your name. The company is requesting the letter be sent from the UN.” (Kofi Annan in 2005 tells Volcker he does not remember the note, and would not have approved the request). About that same time, Kojo contacts the resident representative in Ghana of the U.N. Development Program, and asks for his help in having the Mercedes admitted to Ghana duty-free because it will be arriving in the secretary-general’s name.

Nov. 17, 1998: Kofi Annan makes a wire transfer of $15,000 to Kojo Annan, toward the purchase of a car. (Kofi Annan in 2005 tells Volcker he knew Kojo was planning to buy a car, but did not know Kojo was buying a Mercedes in his name).

Nov. 24, 1998: The funds for Kojo to buy the Mercedes, including the $15,000 wired seven days earlier by his father, and totaling $39,056 after the diplomatic discount, are withdrawn from Kojo’s London bank account to pay for the car, which is allegedly purchased in the name of Kofi Annan, secretary-general of the U.N..

Nov. 28, 1998: Kofi Annan, while attending a Francophone Summit in Paris, meets with Kojo Annan, who has come to the same summit in Paris along with what Volcker describes as “the Cotecna contingent.” Kojo and Kofi Annan lunch together in the secretary-general’s Paris hotel room, at the Hotel de Crillon. According to Kojo Annan, they had personal conversations.

Kofi Annan departed his year-end press conference telling reporters: “You have the right to ask all questions you want to ask. I reserve the right to refuse to answer questions I don’t want to answer.”

Clearly. But the questions keep growing.

— Claudia Rosett is a journalist in residence at the Foundation for the Defense of Democracies.

Wednesday, December 21, 2005

Richard Falk on civil society in UN reform and global governance

Professor Richard Falk has a usefully compact essay, here, on the role of what is called global civil society - international NGOs - in UN reform and global governance generally. He mentions an essay by David Rieff and me, in the yearbook Global Civil Society 2004/5, that is critical of the idea of global civil society. That essay can be found in the final page proofs form on my school webpage, here (scroll down to get to the text). Here is Professor Falk's essay:

Reforming the United Nations: A Global Civil Society Perspective

by Richard Falk
March 31, 2005
(HT: Zaman Daily News)

As portrayed in the media, the issue of UN reform is often reduced in the public mind to enlarging the permanent membership of the Security Council to make it more representative of the power structure of states in the world as of 2005.

There is no doubt that this issue has a significant substantive and symbolic importance in showing the capacity of the UN to adjust to changes in the relations among states, and especially to give states that were either defeated in World War II or situated in Third World regions a proper place at the head table of the United Nations, and the inability of the membership to agree upon a solution despite a major push in the period leading up to the millennium in 2000 illustrated the difficulties of achieving even reforms that were accepted as necessary. More recently, it has been recognized that the essential agenda of UN reform runs far deeper and is far wider than an expanded membership for the Security Council, and poses decisive challenges and opportunities for global civil society in these early years of the 21st century.

The profound character of the reformist imperative was most clearly articulated by UN Secretary-General, Kofi Annan, when in a September 2003 speech to the General Assembly he said: "We have come to a fork in the road. This may be a moment no less decisive than 1945 itself when the United Nations was founded... I believe the time is ripe for a hard look at fundamental issues, and at the structural changes that may be needed in order to strengthen them. History is a harsh judge: it will not forgive us if we let this moment pass." In effect, the Secretary General was saying the UN must change to survive as the institutional centerpiece of hope for a better world. Such a call, made beneath the shadow of the controversial Iraq War undertaken by its leading member without the benefit of a mandate from the Security Council, and in a manner so defiant of the UN Charter that Annan had himself publicly declared it 'illegal' violates the core conception of the United Nations as an organization dedicated, above all, to the prevention of war (allowing only a narrow exception for wars of self-defense). The UN was also under a related somewhat earlier dark shadow cast by the obvious implications of the 9/11 attacks on the United States, indicating the menacing rise of non-state political actors and the related inability, already acknowledged in the 1990s, to treat crises internal to states as beyond the purview of the UN, and as raising difficult questions about the nature of wars undertaken in self-defense. Such a realization was also reinforced by the rise of international human rights as a challenge to the territorial supremacy of the sovereign state. Additionally, on several earlier occasions, most notably in the course of talks given at the World Economic Forum at Davos, Annan had indicated the importance of the United Nations finding a way to make its structure and operations more receptive to the participation of both global market forces and civil society actors, thereby acknowledging that the image of world order as constituted by sovereign states was no longer adequate more than fifty years later. And so there was little doubt that the Secretary General's dramatic words about a fork in the road were a timely acknowledgement that the UN needed fundamental reforms if it were to adapt to the changing needs of the 21st century.

The relation of civil society actors to the United Nations has been complex and problematic from the time of founding. There is no doubt that the peoples of the world, and their associations and representatives, who hoped for a more peaceful, orderly, and humane world looked upon the establishment of the United Nations as a historic positive step, and believed that over time it would encourage the emergence of a warless world governed by the rule of law, especially with respect to the use of force to resolve international disputes. The UN was seen in 1945 as an idealist dream coming true, and as offering the best prospect of curbing the international behavior of sovereign states. The long strategic and ideological conflict associated with the cold war often resulted in stalemates within the Organization, and suggested that the important developments in the area of peace and security were carried on by traditional modes of statecraft. It also became painfully clear that the voices of civil society, although acknowledged as formally relevant, were not heeded in the conduct of the central activities of the UN. [box with Charter provision] The UN was, as clearly intended by its founding governments, a club of, by, and for states, and dominated by the strongest states, suggesting the persistence of geopolitics as the foundation of world order in the decades following upon World War II. This realist image of the UN coincided uncomfortably over the years with lingering idealist expectations, accounting for both disappointments about the failures to implement the Charter and an insistence by peace and justice forces that members live according to the guidelines of the Charter.

Throughout the period, civil society actors increasingly focused on issue areas such as human rights, environment, social justice or shaped movements opposing the Vietnam War or informing the worldwide anti-apartheid campaign. In the 1970s and the 1980s, civil society energies led to the emergence of both robust anti-nuclear movements and anti-authoritarian networks that proclaimed their belief in "d├ętente from below," joining activists East and West in collaborative undertakings that defied the rigid boundaries of the cold war, epitomized the Berlin Wall. What is notable about these developments is that they took shape almost entirely outside of the United Nations. It was only with the onset of global conferences on policy issues, pioneered by the Stockholm Conference on the Human Environment in 1971, that the UN became a major arena for transnational civil forces, both as a source of pressure exerted on inter-governmental activities and as an occasion for networking and organizing. This dynamic reached a climax in the 1990s with a series of high-profile UN conferences that featured strong and vivid participation by civil society actors, and the early articulation by commentators on the international scene of the presence of new political formation identified as 'global civil society.' The very success of this informal penetration of UN processes induced a backlash on the part of several leading governments, sensing a loss of control by states of the policy-forming process, and making the holding of such conferences politically difficult. In effect, civil society actors were creative in their discovery of ways to make effective use of the United Nations to promote their aspirations, but the statist and geopolitical composition of the UN, which endures, also displayed its capacity to hit back, and essentially to keep the doors closed with respect to its major undertakings.

The Secretary General, as political leader and moral authority figure, has struggled to balance the contending forces and aspirations of the Organization. To gain help and support he constituted two prominent panels to study reform prospects, and to deliver reports in 2004. The first of these panels was composed of 'Eminent Persons,' chaired by Fernando Henrique Cardoso, former President of Brazil, and was charged with looking into to the relations between the United Nations and civil society. It issued its report of June 7, 2004. ["We the peoples: civil society, the United Nations, and global governance," Report of the Panel of Eminent Persons on United Nations-Civil Society Relations, A/58/817] It covers the subject-matter comprehensively, offering 30 proposals for reform. The second initiative was charged with reconsidering the role of the United Nations with respect to peace and security, was similarly constituted, chaired by Anand Panyarachun, former Prime Minister of Thailand, submitted its report on December 4, 2004 to the Secretary General. ["A more secure world: Our Shared Responsibility," Report of the Secretary-General's High-level Panel on Threats, Challenges and Change," UN Publications, 2004] Kofi Annan has indicated that he will submit his own report on these security issues in March 2005. This latter report is exclusively dedicated to the substantive issues associated with the current global setting, and does not directly acknowledge the role or significance of global civil society, but its language and approach does reflect to some degree civil society perspectives, including especially its call for reconfiguring security as 'human security' rather than as either "national security" or "collective security."

In the background is the question of whether civil society actors should devote their energies and resources to this debate on UN reform, or concentrate their efforts on grassroots contributions to human betterment. This is old debate that revives the view that the civil society effort to shape a consensus on UN reform via the report of an independent international commission led nowhere, and was largely ignored within the United Nations itself. [The report was published under the title Our Global Neighborhood (Oxford, 1995) on behalf of the Commission on Global Governance.] The issue of UN reform overlaps with and is intimately related to the discourses on 'global governance.' It is notable that the Global Civil Society 2004/5 features as its lead contribution as essay by Kenneth Anderson and David Rieff that counsels international NGOs to give up the pretensions associated with claiming the existence of "global civil society" and to playing a role in the construction of global governance. In their words, " NGOs should give up their claims to represent global civil society, give up their dreams of representing the peoples of the world-indeed, devote fewer of their resources to advocacy and more time and care to the actual needs of their actual constituencies, and re-establish their claims of expertise and competence." [26-39, at 36] Such an admonition can be heard either as a rather sinister message to get out of the way of a resilient geopolitically administered world order or as a counsel to civil society actors to focus their efforts in ways that ensure greater effectiveness. [The advice is rendered more controversial by the authors insisting that if international NGOs, and their intellectual spokespersons emphasize criticisms of the American role in the post-9/11 world that this is "the surest" way to guarantee the "irrelevance" of civil society perspectives and values. At 37-38.] Such a direction of advice would suggest that civil society actors have little role in shaping the debate on UN reform, or more generally, on the future shape of global governance.


The effects of high quality chocolate on the conversion of love to commitment in the human female: A scientific study, or, in praise of Michel Cluizel

I received an email from one of my students in international business transactions a few days ago, asking my opinion of the best of the high quality French chocolate available here in DC.

He had come to me because I had featured transactions in chocolate in several IBT problems, including my real life experience of discovering that the super expensive Valhrona chocolates that I got in Bon Marchais in Paris in March could be had - identical wrapper and all - in Trader Joe's in Bethesda, Maryland for half the price.

I took the time to speak with the Trader Joe's buyer - dedicated law teacher searching for real life meaning and all that - who told me that the price differential was due to (1) volume discounts for Trader Joe's, (2) the ability through the internet to cut out all of the intermediaries and deal directly B2B, and (3) the fact that I had been willing to pay the premium associated with going to the source in Paris. This last can be recharacterized as the willingness to pay a premium for luxury goods, defined in this case as the bragging rights of being able to say, well, I got this in Paris, whereas everyone else got it at Trader Joe's. It's the Veblen leisure class effect phenomenon. Price goes up, demand goes up, and off we go to Paris in search of chocolate.

That's all preliminary, however, to my student's quest. I had informed the class (repeatedly and nearly put it on the final exam) that the best chocolate is not actually Valhrona, but instead the chocolate of the Parisian chocolatier Michel Cluizel. I visited his retail store in Paris, too. Michel Cluizel chocolate can be found (in New York and DC) in Balducci's (which happens to be just one block from American University, where I teach).

(Michel Cluizel, Michel Cluizel - repeat it a couple of times. Roll it around the tongue; experience the full bocquet - hints of vanilla and cinammon, a bitterness of the earth - something fastening on the neural receptors ...)

My student followed up with another email this morning. It read: "Found Michel Cluizel. She said yes."

So there you have it. It was not just love that he was looking for, nor love that he was seeking to convey. My student was looking to demonstrate his reproductive fitness by hunting and gathering the greatest chocolate on earth and bringing it to his intended, so to demonstrate his abiding commitment. Commitment is where the chocolate comes in, from he who bears it and she who consumes it. Being the stuff it is, eating it triggered (chemically, surely) a deep pair bond and reciprocal commitment, each to the other. Their happiness is no doubt assured. Congratulations to both of them. And thanks to Michel Cluizel!

(Update, January 1, 2006. As the anonymous commentator points out, one should not generalize from French chocolate to all chocolate - there is, after all, Belgium chocolate to consider. We had New Year's day brunch with friends, however, one of whom is a Belgium economist with the IMF. He took the view that Belgium chocolate specializes in the chocolate truffle, while French chocolate specializes in the actual chocolate, in bar form. In my experience, that is true, although I have not spent enough time in Belgium chocolate shops to have a firm opinion. It is something I would be happy to rectify, however.)

One line definitions of foreign policy realism, liberal internationalism or idealism, neoconservatism, and paleoconservate isolationism

For what I suspect are the many undergraduates who consult this blog hoping for a quick fix for a term paper or what-not, here, courtesy of the Faces From the Front Blog, is a useful one-line summary of the leading international relations conceptual positions in today's foreign policy discussions in the US. They are foreign policy realism, liberal internationalism or international liberalism or foreign policy idealism, neoconservatism, and paleoconservative isolationism. Note that terms like "realism" and "idealism" have completely different meanings across different disciplines such as philosophy, political science, international relations, etc.

Faces From the Front Blog:

The three or four schools of thought in foreign policy are Realism, International Liberalism, NeoConservatism and PaleoConservative Isolationism.

Foreign Policy Realism, with its devotion to the status quo and use of force only in rare circumstances to maintain order (kicking Saddam out of Kuwait) was a Washington mainstay for decades and still has solid adherents. Realist foreign policy seeks balance and avoids things that may change the position of the international order and harm the United State's interests. Realism also recognizes the use of force and threat of force, military or otherwise, to achieve the nations interests. The foundational philosophy of Realism is that the world is mostly hobbesian with a few Lockes in the mix and that the Lockes just have to deal with the nasty brutes and make the best of it.

Liberalism is focused multilaterally, with an emphasis on the U.N., international governing bodies and consensus to promote international social justice. International Liberalism avoids confrontation, and the promotion of national interest unless it is attached to a moral or humanitarian issue.

Wikipedia's explanation [of foreign policy idealism] is, "the school of thought personified in American diplomatic history by Woodrow Wilson. Idealism (also known as Liberalism) in the Wilsonian context holds that a state should make its internal political philosophy the goal of its foreign policy." The foundational philosophy of International Liberalism is that people are naturally Lockeian and the nasty and brutish hobbesians can be brought around.

NeoConservativism, is a blend of the two. Necons hold that the United States should make its internal political philosophy--liberty, democracy, capitalism--the goal of its foreign policy and that fostering such is in its national interest. But, they are willing to act unilaterally--a prime tenent of realism--to advance the national interest. The foundational philosophy of NeoConservatism is the world may be hobbesian, and there are definately many nasty and brutish types, but people yearn for Locke. If the nasty brutes are eliminated, Locke will follow.

PaleoConservative Isolationism looks at the world as a few tourist destinations in the few civilized countries and that the lower 48 should be turned into a fortress to keep out the nasty brutish types. PaleoConservatisms foundational philosophy is that everything is nasty and brutish, it will not change, and we don't need to bother with it.

Interestingly, this post is in the middle of a discussion of the foreign policy in George Clooney movies, especially Syriana and Three Kings. Both of them, for my taste anyway, are banal and terminally boring. Still, the blog discussion is worth reading. HT Instapundit.

Monday, December 19, 2005

Our Christmas tree, December 2005.

Ken and his cello, December 2005. We were playng Christmas songs before getting moving on decorating the Christmas tree.

Jean-Marie and Renee (back of her head, anyway), in the Musee d'Orsay, March 2005.

A civil indemnity for persons wrongfully or mistakenly detained in the war on terror?

The war on terror, over some number of years, will inevitably result in the detention of some individuals who were innocent and never should have been picked up in the first place - after all, it has already happened. There is a lot of important debate, of course, around the question of review of detention, appeal, habeas corpus, etc.

Should a comprehensive legislative institutionalization of the war on terror (which is, as I have suggested before on this blog, the most important remaining task of the Bush administration beyond success in the Iraq war) incorporate a sizable civil indemnity payable by the US government to a person wrongfully or mistakenly detained beyond a certain significant period of time.

There would have to be an adjudicatory mechanism, of course, to determine who was actually wrongfully detained, and the standard would likely need to be set high. Nor would it involve an acknowledgment of liability by the US government in any sense enforceable in any other court under tort law, etc., - an act of pure and deliberate sovereign immunity. And one would have to keep the buzzards of the trial lawyers association out of it.

But a sizable indemnity - say a million dollars net of all taxes by any government per year of wrongful detention, pro rata by days - might go a long way to dealing with the need, on the one hand, to be able to detain people outside the scope of the full constitutional protections of the domestic judicial order in connection with the security interests of the war on terrorism while, on the other hand, compensating them in some fashion for the injustice of detaining the innocent for a significant time. The point of an indemnity would not be deterrence directed against the US, and would not be large enough to have that effect - it would compensate in some fashion and to some extent for the injustice, and frankly to seek some kind of public relations offset that the US does not now have.

No doubt someone has already thought of this and commented on it, as a good idea or a bad one - I'd be grateful to be pointed toward existing discussion of this.

What is 'subsidiarity"? Tony Judt explains it for you

My enthusiasm for Tony Judt's Postwar knows no bounds. I think it is my personal book of the year, in any category. It is an eloquent, superb combination of scholarly history combined with the sureness of the personal judgment of someone who was around for much of it. It is not at all a personal memoir - it is history on the grand scale - but history in the old fashioned sense of someone who has the grasp and experience to make astute judgments about it.

On "subsidiarity" (at 715-716):

"To be sure, the Maastricht Treaty made much play with 'subsidiarity' - a sort of Occam's Razor for eurocrats, stating 'the Union does not take action (except in the areas which fall within its exclusive competence) unless it is more effective than action taken at national, regional or local level'. But even this had different meanings for different ears: in France it meant limiting the power of supernational bodies beyond Paris' control; for the Germans, it implied special privileges and powers for regional government; for the British it represented a device for blocking institutional integration."

Why did Bush skirt the FISA court on wiretaps? Background from Byron York, et al.

(Update, December 19, 2005. Marty Lederman, blogging at Balkinization, has a different view, here. And Ann Althouse, here. And here, from Tom Smith at The Right Coast. And Orin Kerr, at Volokh Conspiracy, here - from a law professor's technical perspective, this is the most important one. And George Will, here, via RCP. John Yoo, here, in the LATimes, via RCP. William Kristol and Gary Schmitt, here, Washington Post. Intel Dump has a number of excellent posts on the subject, including the text of Senator Diane Feinstein's statement on the Senate floor where she tells us that Congress had no idea, no idea at all - I'm shocked, shocked - that the administration would undertake surveillance outside of FISA court authorization. See Judge Richard Posner's rather calm take on all this, in the December 21, 2005 Washington Post, here.)

(Byron York also has this exceptionally interesting story recalling that the Clinton administration, in 1994, also claimed inherent constitutional authority to order warrantless searches. The quotes from then Deputy AG Jamie Gorelick make fascinating reading in the current debate. Here. This is a must read article, and it is entrancing to watch how the folks who believe that this is the proof that Bush is beyond anything the Republic has seen in this century twist and turn to deal with it.)

(Update, Wednesday, December 21, 2005. Note also this important op-ed piece by former Clinton administration associate attorney general John Schmidt, laying out the case law that FISA cannot encroach on the inherent power of the President and that every president since FISA was passed, including President Clinton, have asserted that right and been sustained by the courts. As Glenn Reynolds says at Instapundit, this underlines the otherwise obvious point that this is not some crazy thing dreamed up by the Bushitler administration. Unfortunately, the MSM spin has decided to run furiously with the meme of "relentless expansion of unchecked executive power sought by Bush and Cheney" - see, eg, the Washington Post's story this morning by Peter Baker and Jim VandeHei about the supposedly unique effort by the Bush administration to expand executive power in modern times. That story, focused almost entirely on Cheney, didn't manage to mention Jamie Gorelick's testimony (run in 1994 in the Washington Post itself - where's Lexis when you need it, guys?) asserting the president's inherent constitutional authority - that part of it didn't fit the narrative, I guess. A Washington Post reader would be clueless that the Clinton administration had asserted the same authority. It also doesn't fit the WP's narrative to note that one reason the Patriot Act was so easily and quickly drafted after 9-11 was that most of it was sitting on the shelf in the form of Clinton era, Janet Reno efforts to expand executive authority - against purely domestic targets. The view from the left is that liberal authoritarianism is good, conservative bad. But it is striking as an example of how blogs and the internet have undercut the ability of MSM to press forward a particular political narrative by simply leaving out key evidence. No doubt Baker and VandeHei are good, competent reporters - but their article, with respect to its own frankly opinion-piece (rather than factual reporting) theme, has what the lawyers would call a material omission of fact.)

(Update, Friday, December 23, 2005. Here is the text, courtesy National Review Online, of the Justice Department's defense of the president's authority to order warrantless wiretaps. Here is Tom Daschle in the Washington Post saying that Congress never approved such authority, and Charles Krauthammer, also in the Washington Post, defending the administration, here. And here is a post by liberal law professor Cass Sunstein saying the president does have the authority, courtesy Instapundit. As Sunstein puts it:

It is therefore reasonable to say that the AUMF, by authorizing the use of "all necessary and appropriate force," also authorizes surveillance of those associated with Al Qaeda or any other organizations that "planned, authorized, committed, or aided the terrorist attacks" of September 11.")

(Update, December 26, 2005. Here is Jack O'Neill, pointing out that the call heard post 9-11 to "connect the dots" has always crucially depended on the warrantless electronic interceptions through the NSA. And here is Thomas Bray noting the far more sweeping powers being exercised by Canada, Britain, and France. Michael Barone on hysteria over all this from the New York Times, here.)

(Update, Sunday, January 1, 2006. UVA professor Robert Turner in the Wall Street Journal on why the wiretapping was legal, here, and Orin Kerr's response in the Volockh Conspiracy here, and Tom Smith's response to that, here.)

(My view? [I drafted this well before all the Clinton era material from Jamie Gorelick, et al., had emerged, so my view that this is not a serious legal issue is now far stronger than it was a few days ago. I don't pretend it's as sophisticated as Orin Kerr's.] However: The president has the plenary constitutional power, certainly in the post 9-11 circumstances, to undertake the reported warrantless surveillance, FISA notwithstanding. In any case, Congress authorized action against terrorism prior to and apart from the Patriot Act, knowing fully in the post 9-11 days that this certainly meant the possibility of dealing with terrorist cells on US soil, given that the fact of 9-11 meant they were already here. I think it is astonishing, but telling, that Senator Feinstein (see the senate statement posted at Intel-Dump, here) recites a lot of law about FISA without seriously dealing with the language of the September 14 Congressional use of force authorization that specifically provided that the President "has authority under the constitution to take action to deter and prevent acts of international terrorism." If you already know you have terrorists acting on domestic soil, in the United States itself, and you use that kind of language, I find it questionable to assert afterwards that the president doesn't have power to go around FISA. It is language designed to override concerns from the Church commission days of the 1970s that - somehow - seemed inapppropriate on September 12. I would also add that because I am not an expert on the Moussaoui trial, I would like to understand the Democratic response to what York says, below, was the inability, due to FISA, to examine his computer pre-9/11 even as the attacks were being finalized and ultimately carried out. I'm not enough of an expert on the facts of that to say to say, but I would like to understand the response to that very serious charge. It also appears to me to be a case where senior Congressional Democrats were not unhappy with this before it became public, but now that it is public, it is the most shocking thing since, well, 9-11; after all, Congressional leaders were informed about the program and there is no indication anyone raised a fuss. Senator Rockefeller has raised an internal memo that indicates, if anything, that in his own view he is not smart enough to be either a lawyer or a technical intelligence person - whether lack of smarts qualifies him merely or especially for the US Senate, I cannot say. As for the leakers themselves, where is our new Patrick Fitzgerald, as Max Boot asks in this LA Times opinion piece titled, appropriately enough, "'Plame Platoon' is Awol"? [Note that the Justice Department has since opened an inquiry] Also see this Cassandra post at Tigerhawk following the NYT flipflops on this issue going back decades.).


December 19, 2005, 1:34 p.m.
National Review Online

Why Bush Approved the Wiretaps

Not long ago, both parties agreed the FISA court was a problem.

In the days since the revelation that President Bush authorized the National Security Agency to bypass, in certain cases of suspected al Qaeda activity, the special court set up to provide warrants for national-security wiretaps, the question has come up repeatedly: Why did he do it?
At his news conference this morning, the president explained that he believed the U.S. government had to "be able to act fast" to intercept the "international communications of people with known links to al Qaeda." "Al Qaeda was not a conventional enemy," Bush said. "This new threat required us to think and act differently."

But there's more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late.
Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002.

The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.

"Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow," the commission said. "Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process."

It was in the context of such bureaucratic bottlenecks that the president first authorized, and then renewed, the program to bypass the FISA court in cases of international communications of people with known al Qaeda links.

There were other reasons for the president to act, as well. In short, it appears that he was trying to shake the bureaucracy into action. The September 11 Commission report pointed to a deeply entrenched it's-not-my-job mentality within the National Security Agency that led the organization to shy away from aggressive antiterrorism surveillance. "The law requires the NSA to not deliberately collect data on U.S. citizens or on persons in the United States without a warrant based on foreign intelligence requirements," the 9/11 commission report wrote,
While the NSA had the technical capability to report on communications with suspected terrorist facilities in the Middle East, the NSA did not seek FISA Court warrants to collect communications between individuals in the United States and foreign countries, because it believed that this was an FBI role. It also did not want to be viewed as targeting persons in the United States and possibly violating laws that governed NSA's collection of foreign intelligence. An almost obsessive protection of sources and methods by the NSA, and its focus on foreign intelligence, and its avoidance of anything domestic important elements in the story of 9/11.

Bush's order, it appears, was an attempt to change that situation. Especially before, and even after, passage of the Patriot Act, the FISA bureaucracy and the agencies that dealt with it were too unwieldy to handle some fast-moving intelligence cases. And now, a group of 43 Democrats and four Republicans is trying to undo even those improvements brought by the Patriot Act; after the effort to renew the law was filibustered last week, Senate Minority Leader Harry Reid exulted, "We killed the Patriot Act." Put all those factors together, and they explain the president's impassioned argument that he has to act to keep the pressure on al Qaeda — especially at a time when others, for whatever reasons, are trying to stop him.

Sunday, December 18, 2005

Professor Thomas A. Smith, USD law school, on Professor Luban's article on torture

Here is a post from Professor Thomas A. Smith, University of San Diego law school, posting on the group blog The Right Coast, December 17, 2005, on Professor David Luban's Washington Post opinion piece on torture and interrogation:

December 17, 2005

More on torture
By Tom Smith university of San Diego Law School

I think if I were an Al Qaeda agent, I would spill my guts before consenting to listen to American academics debate torture. Here is a link to some give and take between Professor Anderson, who seems reasonable enough to me, and Professor Luban, who I gather is as distinguished as all get out, and who strikes me as being out to lunch.

Reading Professor Luban's piece from the Washington Post (scroll up from the link above) moves me to comment as below, though nothing I have to say is philosophically interesting, but so little that is useful is. I can only hope this debate is not over with the McCain Amendment; Andrew Sullivan and most academics are very pleased with themselves right now, but I suspect the debate is far from over.

In any event, Professor Luban begins his piece by making the point that the "real life" debate about torture is not about the scenarios in TV melodramas such as 24, in which a ticking nuclear bomb must be found, and only one trussed up terrorist knows where it is. Rather it is about the slow accumulation of intelligence. This betrays the almost total innocence of what military interrogators have to accomplish that one would expect of philosophers. In fact, from my several conversations with military officers who have had to deal with the problems terrorists present, which I suspect is more than most philosophers have had, it is clear that in"real life" interrogators face plenty of both needing to gather pieces of the mosaic, and the urgent need to prevent impending disasters.

A student in my contracts class, for example, is a Navy officer who was in charge of an explosives disposal unit in Iraq. This involved just the scrotum tightening job it sounds like. Somebody finds an IED by the side of the road, and he and his men were the ones sent in to disarm it, or blow it up. He told me the following story. The army or marines caught a terrorist planting an IED. They demanded to know if he had planted other bombs and if so, where they were. The terrorist was willing to talk -- I don't know why -- and so he led my student and his men around and showed them where he had planted the bombs. The Navy disposal people wore heavy protective suits, but the terrorist did not have one, and our guys did not think to give him one. As a result, several Navy service people narrowly avoided court martial, because the act of making the terrorist take them around and show them where the bombs were planted without the benefit of protective clothing was close, apparently, to being a "war crime."

Apart from the lengths to which we usually go to fight within rules the terrorists ignore, this illustrates two points. First, getting information from terrorists about the where and when of bombs that kill scores and hundreds and cumulatively thousands of people is routine in anti-terrorist operations. Intelligence in this particular war is partly about the slow accumulation of intelligence, but it is also about getting information urgently, because if you do not, US forces and civilians, such as those dozens of children a few weeks ago who were guilty of the crime of accepting candy from US soldiers, get blown to pieces. Second, I infer that Professor Luban is not really all that familiar with that on which he opines, that is how often information from terrorists is needed urgently, information that is to be had for little more than a sympathetic ear and the price of a few beers, if that. But then I am not up on the latest philosophical criticisms of torture, so perhaps that makes us even.

I am happy to concede that many of the harsh tactics that the Bush administration is reluctant to call torture, might as well be called torture, at least for purposes of the moral debate. So fine, let's call waterboarding torture. There are legal reasons for not making this concession, but for clarity in the moral argument, fine.

It is what passes for the moral argument itself that bothers me. It seems to boil down to, torture is dreadful, shocking to the conscience, awful to contemplate, it degrades us, we're above it, and therefore we should not do it, no matter what. I agree with this, except for the last three words. I give you something else awful to contemplate: what a 150 mm howitzer shell, packed in the trunk of a car with pounds of nails, bolts and scrap metal, and rigged to go off with the push of button, does to a crowd of people when you set it off in their midst. Professor Luban seems to think this happens only on TV melodramas. In fact, what happens on TV bears little relationship to the truth. The truth hardly bears thinking about. The truth is people blown to pieces, flopping around on the ground if they are so unlucky as not to die instantly, thinking whatever you think in those last moments. The truth is children, who must number in the thousands now, having to face life without hands, or legs, or eyes, or faces, or insides that work properly, and do so in a country with nothing like our medical or social services. I am so sorry if I am offending anyone's sensibilities with these unpleasant images. But I rather gathered from Professor Luban's recitals of all the unpleasant things that we do to prisoners, that the use of vivid images in argument was permitted.

Now, if I follow his argument correctly, it is that, first, intelligence never prevents these horrors from happening, which the most casual attention to the facts proves false, and that even if it did, it would still be morally wrong to torture. The first claim insults one's intelligence, and the second claim is little short of astonishing. Why exactly would it be morally wrong, as opposed to morally obligatory, to hold a wet towel over someone's face to stop him from breathing, until he told you where the bomb was or was going to be, in order to avoid the all too real horrors just mentioned? No one likes to be a crude utilitarian, but is it not actually absurd, embarassing, and ridiculous to contend that rather than to temporarily stop a terrorist from breathing, under circumstances where the worst that will happen to him is that he will pass out, we will let him or his fellow terrorists blow the limbs off of even one child, let alone kill dozens? Our philosophers must indeed have access to some dazzling truth the rest of us are blind to if they can see this when most of us, or at least I, cannot. I am quite aware that not all cases are like this one, but, contrary to what the opponents of torture under any circumstances might say, plenty are, especially at the level of the officers and men who deal with the war on the ground. I would propose a rule like this: if the responsible officer thinks it would probably save lives to torture a captive, who they are reasonably certain is a terrorist, in order to get urgently needed information, and there is no reasonable alternative, then they should do it. In other words, not torturing captives should have some priority, but saving the lives of our service people and civilians, should have a higher priority.

What about torturing captives in places like the secret CIA prisons or Guantanamo Bay? That is a harder question, because the benefits of the information gotten are murkier. But one may ask, how exactly are we supposed to get hard terrorist cases to tell us what we need to know, if we cannot credibly threaten them with something they fear? If there is some literature I am unaware of that shows that, contrary to what the layperson would think, kindness is the way to go, then that is something else. Obviously, the least cruel methods that actually work should be used. But, as it is apparently not so obvious to not need mentioning, we really do need to know what the group that killed 3000 people on September 11 have planned. I gather the professorial opponents of torture take the view that we do not need to know so much that it justifies waterboarding, cold rooms, and degrading treatment. This baffles me. I wonder if what is really go on here is not some deep philosophical insight the rest of us just can't grasp, but rather is just that professors can imagine what it would be like to be kept in a cold room, because we've all had offices like that, but how to choose between jumping and burning alive, we can't and so put from our minds.

But the horrors al Qaeda and its allies have in mind for us are all too real. There is a moral obligation to prevent them, and if torture is necessary to do it, then we should torture. I don't know whether torture really is necessary, but I am sure that its professorial opponents are not the ones who would know. Professor Luban and I think Mr. Sullivan as well are fond of the trope that torture is not "who we are." Here and in the tone generally of anti-torture academic bloggers after the McCain Amendment passed, there is the fairly stifling odor of moral self-congratulation. These self-decorations are both premature and ridiculous. They are premature because we don't yet know how much the new rules will cost. If only unnecessary or ill-advised torture is eliminated, then that is a good thing. If people die because of them, it is a very bad thing. But it probably won't be in Cambridge or Palo Alto. Whatever the pundits and philosophers say, they are probably safe. The self-congratulation is ridiculous because we live in a time when men and women are dying and getting terribly wounded so the rest of us can be secure and do things like make their jobs more difficult on the basis of our own moral confusions. And in the case of the Iraqis themselves, so they can build a democracy in a place so many American savants have said it is impossible. That is, we live in a time of real sacrifice and real heroism. The professors and pundits should get over themselves.

Saturday, December 17, 2005

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

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

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

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

(KA Response to Marty, posted to Balkinization.)


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

Marty's reply (from his blog comments):

Professor Anderson:

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

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

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

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

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

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

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

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

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

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

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

Thanks, and my apologies once again for any misunderstanding.

(My reply to Marty: )

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

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

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

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

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

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

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

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

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

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

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

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

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

Best wishes, Ken Anderson

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