Friday, July 25, 2008

Ben Wittes Long War book discussion at Opinio Juris next week

I have said on repeated occasions that I regard Benjamin Wittes’s Law and the Long War as the most essential reading on Guantanamo and on the general question of what forward-looking counterterrorism policy should be for the United States, on matters of detention, interrogation, the role of Congress, and many other topics. Opinio Juris will be holding a discussion of the book next week, starting Monday, with a very impressive lineup of commentators: Glenn Sulmasey, Steve Vladeck, Geoff Corn, Bobby Chesney, maybe some others as well, and also Deborah Pearstein joining the regular OJ lineup. Check it out.

(And Marty Lederman too - Opinio Juris, only the finest in intellectual legal commentary!)

Wednesday, July 23, 2008

My TLS review of Philip Bobbitt's Terror and Consent, now out online

Philip Bobbitt’s book Terror and Consent is a marvelous book, and I hope it gets wide readership. It is long, but It repays careful study. My review in the Times Literary Supplement has just appeared online. Here is a little bit of it (and thanks to Larry Solum at Legal Theory Blog for the shoutout):

Philip Bobbitt’s Terror and Consent is a big book, enormous in concept and sweep, full of portent for transnational politics in the twenty-first century. Portentousness in a book can be a good thing, provided it delivers as promised, and this one delivers more intellectual punch on the fraught relationships between state and society, terrorism and terrorists, than any book I know. Not everyone feels this way; one indicator of the book’s intrinsic interest is the volatility of the reviews. The Economist was distinctly cool; Bobbitt’s grand ambition, it said, “is confusing, hard to digest, and perhaps wrong”. Niall Ferguson, on the other hand, recently called it the “most profound book on the subject of American foreign policy since the attacks of 9/11 – indeed, since the end of the cold war”.

A problem with much current analysis of this nature is that it thinks small. Today’s most serious efforts tend to avoid anything resembling a grand strategy for winning a long-term struggle against terrorists and terrorist organizations, and the states that sponsor and shield them. Favoured instead is the narrowing method of cost-benefit analysis and (adopting one version of it) an endorsement of defensive, immediate measures that are most obviously cost-effective. Talk of “victory” or “winning”, meanwhile, might resemble talk of “war” – but these days few dare call it war, at least if one wants to remain respectable among Western policy, academic and political elites. Governments shrink back, in fear of precisely the Muslim backlash their timidity invites. Terror and Consent, for its part, is heterodox on a long list of things. Bobbitt thinks that the struggle against terrorism is plainly a war, to be called a war and fought as a war, against religiously driven Islamist ideologues who seek to establish, he says, their vision of the caliphate. These figures operate in what he flatly calls “states of terror” that must be defeated. Nonetheless, changing conditions of twenty-first-century war, because of changing conditions of the twenty-first-century state, mean that war is not as it has long been.

Recent approaches to terrorism are driven not just by narrow cost-benefit analysis, but by a still narrower focus on something we might call “event-specific catastrophism”: preventing the next attack.

This is understandable for the Bush administration, considering what its officials see every day in secret threat assessments. The US Attorney General since late 2007, Michael Mukasey, has mused publicly about how constant and serious the threats against the US are; despite no successful homeland attacks since 9/11, he is “surprised by how surprised I am”. This may well be self-serving administration rhetoric, but much US policy is based less on “war” than on the last defensive perimeters: airport security, daily monitoring of cellphone traffic, internet analysis, watch lists, and many, many cement barriers. This is counterterrorism in a vital but stiflingly narrow sense. The cost-benefit analysis underlying such planning bears little resemblance to any strategic conceptual response to jihad that goes beyond preventing particular events of uncertain probability and magnitude.

Indeed, since 9/11, the Bush administration has undertaken only one genuinely strategic gambit – rolling the dice on Iraq and inviting al-Qaeda and other jihadists to make their stand there. But this is a post-hoc rationale: the Bush administration obviously undertook the Iraq war on a very different strategic basis.

The Bush administration’s numerous critics ridicule US counterterrorism policy in great measure within the same narrow framework that the administration has used. Sometimes the cost-benefit analysis would scarcely pass muster in an undergraduate economics class – the political scientist John Mueller, in his bestselling Overblown (2006), or the journalist James Fallows, each breezily announcing that the chances of getting killed in a terrorist attack are less than getting struck by lightning, or that 9/11 killed 3,000 people whereas 40,000 Americans die each year in automobile accidents and, ergo, well what? Cost-benefit comparison of opportunity costs makes sense only if comparing genuinely apposite opportunities. There have been some serious cost-benefit analyses offered in criticism of US policy. Cass R. Sunstein, for example, in his impressive, thoughtful Worst-Case Scenarios (2007), calmly demolished the so-called “One Percent Doctrine” – Vice-President Cheney’s assertion that even a 1 per cent chance of a catastrophic terrorist event requires a response as though it were a complete, 100 per cent certainty. Not even all the instruments of the national will (what President Bush committed to the fight against terrorism after 9/11) are unlimited. Choices still have to be made and priorities established and, as Sunstein observed, preventative actions bring risks of their own.

Nonetheless, even sophisticated analysis takes the prevention of particular events as the fundamental analytic objective. There is an important political reason for this. The American public has been gradually downgrading terrorism as a political priority, even while continuing to say that it supports serious measures against it. American elites, for their part, have been sliding to a dismissively contemptuous view that questions the whole idea of counterterrorism as a serious, large-scale necessity. The threat is downgraded, deploying cost-benefit-style arguments to call the administration’s counterterrorism programmes trumped up and exaggerated, and to suggest that the terrorist threat is quite capable of management without special military or even extraordinary intelligence measures.

Leaving aside the frequent starting assumption that the Bush administration has illegitimately grabbed executive power, and that this, rather than terrorism, is the primary thing against which to protect, the fundamental factual claim is that the probability of a successful attack has been seriously exaggerated. How to interpret, in other words, the fact that the US has not been hit on its territory since 9/11: as evidence of the effectiveness of the anti-terrorism efforts, or evidence that the threat was always more chimerical than real? Thus, in Barack Obama’s reckoning, Islamist terrorism is just one threat among so many: climate change and poverty, genocide and disease. The task is to learn to do as Western European countries do, and manage terror and terrorism, preferably within the existing confines of the criminal justice system. A certain amount of terrorism is normal, because a certain amount of criminality is normal. Of course, the strategic circumstances of Western Europe are different from the US (the threat to Britain, for example, lies mostly within, not without); and few in the US stop to consider that the European approach is as much a matter of necessity as strategic preference.

It might make sense to pursue policies that can at least command wide if shallow support. The kind of fundamental agreement that bound the Cold War’s “Vital Center” in the US over decades appears not to be forthcoming. Even so, few will oppose measures narrowly tailored, through recourse to cost-benefit analysis, towards preventing the next attack. But the difficulty with this policy minimalism, as Bobbitt has observed, is that event-specific cost-benefit analysis is “relentlessly tactical”. Even when not event-specific – even when it takes “Islamist terrorism” as a whole – it is by its very nature reactive. Cost-benefit analysis does not propose solutions; it evaluates proposed solutions offered by other processes. It is not a strategic form of thinking.

Terror and Consent, by contrast, offers strategic thinking on an unapologetically grand scale. It is synthetic across three large fields: history, law and strategic international politics. Bobbitt is able to combine academic and real-world experience – a Democrat by affiliation, he has served in senior positions in both law and intelligence in the Clinton and Bush senior administrations. His core insight is that transnational jihadist terrorism must be understood on the largest historical scale, and that requires understanding the shifting nature of the state and society in both the liberal democratic West and the rest of the world. For Bobbitt, jihadist transnational terrorism gets going by being able to exploit the interstices of the state system, not just on a geographical basis – the failed state of Afghanistan, for example – but on a historical basis, as the nature of the state moves from its incarnation in the twentieth century to something quite different in the twenty-first. Bobbitt’s main point is that al-Qaeda terrorism, and what might eventually replace and transform it, cannot be understood without reference to the state system and its evolution over a long period of time. This leads Terror and Consent into a long walk through the history of the state in the West ....

Wednesday, July 16, 2008

Joining Opinio Juris!

As of July 14, 2008, I have joined Opinio Juris group blog on international law. I am so delighted to join the finest of the international law blogs; I have been a fan since its beginning.

Opinio Juris has gone through a complete revamp - an upgraded, completely redesigned site and an exciting new partnership with Oxford University Press. Check it out. (If you currently have feeds, etc., check out the instructions on how to get up to speed on the new site.)

I don’t intend to abandon this blog, so you might want to keep it on your blogroll or your feed. I will use it to post stuff that doesn’t seem quite right for an international law blog, as well as advertisements (so to speak) for various writings of mine. I do intend to post stuff about music, for example, and probably some quick stuff about books unrelated to international law topics. I might also cross post some things, too.

Thursday, July 10, 2008

My TLS review of Joost Hiltermann's account of poison gas use in Iraq

My review of Joost Hiltermann, A Poisonous Affair: America, Iraq, and the Gassing of Halabja (Oxford 2007), has just appeared today in the July 9, 2008 Times Literary Supplement, “America, Iraq, and Poison Gas.”

Despite their limitations, chemical weapons are eminently suited to another purpose – spreading terror among civilian populations. Iraq broke the moratorium early in the Iran–Iraq war that began in 1980, but chemical weapons gained their most notorious use as a weapon against civilians in the later 1980s, when Saddam Hussein turned them against his own Kurdish population in the infamous 1988 Anfal campaign. The veteran human rights campaigner Joost R. Hiltermann has written an indispensable book on the use of chemical weapons by the Saddam regime, and the reactions and responses of the international community, focusing on the largest and most lethal of the attacks in Kurdistan, the gassing of the town of Halabja on March 16, 1988. This is far more than simply the twenty-year-old history of yet another atrocity. The death sentence pronounced in September 2007 by an Iraqi court on one of the principal architects of the Anfal campaign, so-called Chemical Ali, is evidence of that. And the larger political repercussions of chemical weapons use by Saddam Hussein in the 1980s are still palpably with us today – as a monumentally mistaken ground for the US invasion in 2003, as an ongoing anxiety of governments fearful of terrorist use of chemicals, as a test of international law and its ability to make good on prohibitions on their use by states or other parties. And it is finally, as Hiltermann makes central to this book, a marker of the gap between American foreign policy realism and idealism, between the accommodation of dictators in conflict with other dictators, America in the 1980s between the regime of Saddam Hussein, on the one hand, and the Islamist regime of the Iranian mullahs, on the other – all in the midst of one of the most brutal, long-running and yet largely ignored, conventional state-to-state wars of the latter half of the twentieth century.

As a former senior staffer of Human Rights Watch, which did much of the early research, Hiltermann is well positioned to present the story of Halabja and the rest of the Anfal chemical campaign (Hiltermann is currently with the International Crisis Group). But his extraordinarily extensive interviews – with Iraqis following the US invasion, with Iranians, with US government staff current and past, with UN officials and many others – have produced a seamless record of what transpired, far beyond the research of the early 1990s. As someone who had a minor role in all this – I preceded Hiltermann as the director of the Human Rights Watch Arms Division and co-directed some of the early field research into chemical weapons attacks in Iraq in 1992 – I can say that this is the best-researched and documented account of events in 1988. And it brings to bear the best judgement available on vexed collateral questions – did the Iranians, for example, use gas weapons in the war? Perhaps future historians, with access to insider Iranian government files, will say something different; but Hiltermann’s conclusion, “not impossible, but unlikely”, is likely to remain the correct answer.

Several thousand people perished in the Halabja attack; the exact number, Hiltermann says, remains unknown. How they died, recounted through interviews with survivors, is unsparing and yet never sentimental or overwrought. It recalled to me my own interviews with survivors who watched their loved ones die from nerve toxin exposure, spasms resembling, one said, cockroaches doused with bug spray. But the larger question that Hiltermann seeks to answer is the response of the international community. His conclusion is that the world turned aside and ignored the particular crimes as well as the breach in international law and the dangerous precedent laid for the future.