Sunday, April 19, 2009


I, for one, welcome our Tweenbot overlords! 

Sample questions from the AP Macro Exam

Via the great Greg Mankiw blog, this NYT interactive quiz - 19 sample questions from the AP macroecon exam. I got one wrong out of the 19 - but while embarrassing, I did think the question ambiguous as between short and long-run. It’s a fun quiz to take, as long as it’s not some three hour exam for real.

Bradley and Goldsmith in the WP on ATS cases, and my further question

(Cross posted with minor edits from Opinio Juris).

I am fundamentally in agreement with the Bradley-Goldsmith view as to why the Alien Tort Statute is a bad idea. I would simply repeal it as lacking connection to its original purpose and providing many perverse incentives, not to mention avenues of litigation open to aliens that are not open to US citizens.

However, I want to post up a related question. It is not so much about the ATS itself or its implications for US law or its politics. It is, rather, about the substance of the legal positions produced in ATS cases and the US-centric methods by which they are produced, and whether non-US international lawyers and legal scholars think that they are right as a matter of international law, the substance of international law.

As I point out in a short essay coming out soon in the European Journal of International Law that Joe Weiler was kind enough to solicit (adv.) (but it is certainly not an observation original with me):

Consider, for example, the very particular sub-community of interpretation of international law by US courts in Alien Tort Statute interpretation. Those courts (constantly citing to each other) have gradually built up a self-referential, hybrid jurisprudence of certain aspects of international criminal law – war crimes, crimes against humanity, and genocide, for example – together with other materials drawn from US civil and tort law, such as corporate liability, aiding and abetting, and similar doctrines. The individual terms of the Alien Tort Statute – “in violation of the law of nations or a treaty of the United States,” especially – create idiosyncratic pressures on interpretation. What is the ‘law of nations’ – for purposes of US jurisprudence, under US constitutional standards and current Supreme Court interpretation under the Sosa decision? Whatever exactly the ‘law of nations’ means as an international law term, it means something different in the hands of American courts that, under Sosa, are required to look not strictly to “traditional” international sources, such as those stated in the ICJ statute, nor strictly to such concepts as jus cogens – but instead, per Sosa, to a somewhat altered form of original meaning jurisprudence and what the drafters of the statute meant, or anyway what was meant in their times, along with some “fundamental” matters of the law of nations.

I do not mean to get hung up on differences among contested doctrines of US ‘originalism’ in interpretation - on the contrary, the fact that we might get hung up on such things tells you something about how distinctive this community of “international law” interpretation is. In other words, the jurisprudence of the US courts applying the ATS is not merely internationally agreed substantive international law plus some US civil litigation concepts to make the claim out in US tort terms such as enterprise liability. It is, instead, an interpretation of “international law” filtered through an ancient US statute, with US canons of constitutional interpretation applied to the meaning of the statute, Sosa atop of that (Sosa, while (predictably) not producing predictable outcomes, nonetheless introduces a distinctly US set of interpretive issues) and only by extension to the “international” law underlying it.

The whole process of interpretation, while fairly ordinary in US constitutional adjudication, must look slightly strange to international lawyers. The substantive results, especially as driven by the urgent, overriding, absolute need of plaintiffs to show a law of nations violation merely to get into US court, must start to look strange to those international lawyers as well. What does it mean when the function of the law of nations is to establish a threshold by which to get into court, rather than being the core issue of the litigation - litigation in tort, not a category of international law as such at all? Doesn’t this inevitably affect the way in which the law of nations is interpreted? I suspect – it is hard to get anyone to say much, frankly – that many non-American international law experts are, on the one hand, reassured to see American courts involve themselves with substantive international law, gradually drawing it into American jurisprudence and adjudication. On the other hand, I suspect many of them are also privately unhappy with the actual content of that law, thinking that it is evolving within its closed community in ways that are not consistent with the “authoritative” interpretation of international law in the international community and that are, in a word, weird. But who wants to be the non-American “international lawyer” to tell a US District Court that?

This is from the unedited draft; it will all be polished up in the final. But my basic question stands. I have had conversations with several prominent European legal scholars over the years who have expressed exactly such private reservations about the interpretive filter through which international law flows in ATS cases as well as private reservations about the substantive results. They also have never wanted to make such criticism publicly, because overall they favor American courts getting involved, presumably - the discussions didn’t go that far - because they hoped, as American transnationalists often hope, to use the American courts for (as John Bolton or I might put it) an end-run around the will of the American political branches.

But I would be exceedingly curious to know if there were discussion by non-American legal scholars of the process and substance of American ATS cases - whether favorably or unfavorably disposed. I have searched over the years, but don’t find so much - especially criticism of the kind that I have heard in private discussion. The closest things to criticism I can think of are the expert declarations offered a few years ago by Christopher Greenwood and James Crawford in Talisman in which there were at least some discreet, indirect criticisms offered of US court interpretations of international law. But I might be over-remembering.

So my question is, does anyone know of expert commentary by non-US international lawyers or scholars in this area? Either for or against the way in which US ATS litigation interprets as a matter of method as well as substantive conclusions of international law? I would be grateful if you could point me toward such commentary.

(I should add that I have occasionally done expert declaration work on ATS cases.)

Friday, April 17, 2009

NYT 'Room for Debate' blog on the torture memos and Obama rejecting CIA prosecutions

Over at the New York Times’s Room for Debate Blog, a discussion of the newly released Bush-era memos on torture and CIA interrogation, and the decision by the Obama administration not to seek prosecutions of CIA officers who relied on those memos and agency legal advice. Participants include David Cole, Michael Ratner, David Rivkin, Kori Schake, and me.

(And Glenn, thanks for the Instalanche for the NYT blog!)

Sunday, April 12, 2009

Happy Easter

And death shall have no dominion.
Dead men naked they shall be one
With the man in the wind and the west moon;
When their bones are picked clean and the clean bones gone,
They shall have stars at elbow and foot;
Though they go mad they shall be sane,
Though they sink through the sea they shall rise again;
Though lovers be lost love shall not;
And death shall have no dominion.

And death shall have no dominion.
Under the windings of the sea
They lying long shall not die windily;
Twisting on racks when sinews give way,
Strapped to a wheel, yet they shall not break;
Faith in their hands shall snap in two,
And the unicorn evils run them through;
Split all ends up they shan't crack;
And death shall have no dominion.

And death shall have no dominion.
No more may gulls cry at their ears
Or waves break loud on the seashores;
Where blew a flower may a flower no more
Lift its head to the blows of the rain;
Though they be mad and dead as nails,
Heads of the characters hammer through daisies;
Break in the sun till the sun breaks down,
And death shall have no dominion.

(Dylan Thomas, Twenty-five Poems, 1936.)

Saturday, April 04, 2009

"Critical Studies on Terrorism"

Oh dear, oh dear, oh dear. Thanks to Mike Innes over at CTLab, (where I’ve been blogging for the past week on robots and PW Singer’s Wired for War), this note on a journal devoted to “critical terrorism studies” and a review of the journal. Let me simply raid Mike:

In the latest issue of Studies in Conflict and Terrorism,  David Martin Jones (University of Queensland) and M.L.R. Smith (King's College London), write in "We're All Terrorists Now: Critical - Or Hypocritical - Studies "On" Terrorism", about the new school of "critical terrorism studies" based out of the University of Wales, Aberystwyth:

ABSTRACT: This article reviews the new journal Critical Studies on Terrorism. The fashionable approach that this journal adopts towards the contemporary phenomenon of terrorism maintains that a “critical” and “self-reflexive” approach to the study of terrorism reveals a variety of shortcomings in the discipline. These range from a distorting overidentification with the Western democratic state perspective on terrorism to a failure to empathize with the misunderstood, non-Western, “other.” This review examines whether the claims of the critical approach adds anything, other than pedantry and obscurity, to our understanding of the phenomenon. It concludes that it does not.

I was wondering when this might happen. The authors go on to describe the "congealed prose, obscure jargon, philosophical posturing, and concentrated anti-Western self-loathing that comprise the core of this journal’s first edition." Ouch. The article's behind a pay firewall, but here's the conclusion:

In the looking glass world of critical terror studies the conventional analysis of terrorism is ontologically challenged, lacks self-reflexivity, and is policy oriented. By contrast, critical theory’s ethicist, yet relativist, and deconstructive gaze reveals that we are all terrorists now and must empathize with those sub-state actors who have recourse to violence for whatever motive. Despite their intolerable othering by media and governments, terrorists are really no different from us. In fact, there is terror as the weapon of the weak and the far worse economic and coercive terror of the liberal state. Terrorists therefore deserve empathy and they must be discursively engaged.

At the core of this understanding sits a radical pacifism and an idealism that requires not the status quo but communication and “human emancipation.” Until this radical postnational utopia arrives both force and the discourse of evil must be abandoned and instead therapy and un-coerced conversation must be practiced. In the popular ABC drama Boston Legal Judge Brown perennially referred to the vague, irrelevant, jargon-ridden statements of lawyers as “jibber jabber.” The Aberystwyth-based school of critical internationalist utopianism that increasingly dominates the study of international relations in Britain and Australia has refined a higher order incoherence that may be termed Aber jabber. The pages of the journal of Critical Studies on Terrorism are its natural home.

Fred Siegel on the origins of American liberalism at Telos blog

Fred Siegel, the historian who wrote the biography of Rudy Giuliani a couple of years ago, has a post up at the blog of Telos, the journal of critical theory, titled "Taking Communism Away from the Communists: Origins of Modern American LIberalism."  

Fred is one of the clearest academic writers you can imagine, and this piece is a terrifically informative, well written discussion of the rise of modern American liberalism from an intellectual historian's view.  It's a terrific piece, and for readers who are suddenly trying to figure out how we got a social democrat or a socialist or something into the White House and what that means in the long view of American history, this is it.

If you are an intellectual, you really should subscribe to Telos! Very important reading!

Resolving the tension between liberal internationalism and the 'new liberal realism'

The Obama administration’s new foreign policy at this early point in time is mostly built around the proposition of ‘engagement’. As many folks have pointed out - long preceding the Obama administration - ‘engagement’ is a process, not a substantive policy or set of policy ends. It is an affect, not an outcome.

My now nearly completed book on UN-US relations, Returning to Earth, talks a lot about engagement - it seeks to offer policy heuristics for different types of activities of the US at the UN that would help the US figure out when, how, and with whom to engage - and when not. It seeks to break engagement out according to the kind of activity at the UN - security, development, values, governance, and give a better sense of what engagement can or should mean in each. It’s not particularly deep; it’s trying to offer a set of basic heuristics. But it means I have been thinking for the last several years about the nature of engagement - in large part trying to figure out what friends of mine, many of whom have now gone into the Obama administration foreign policy agencies, meant during the past five years when they kept decrying the supposed failure of the Bush administration to engage.

But the Obama administration’s foreign policy, when it comes to some deeper orientation than merely ‘engage, engage, engage’, seems to be oscillating between two poles - the traditional left-Democratic preference for idealism and global governance through liberal internationalism, on the one hand, and what I have called the ‘new liberal realism’, on the other. These are exemplified by the contrast between the nomination of Yale Dean Harold Koh, one of the leading American liberal internationalists of our time, as the new legal adviser to the State Department, and Hillary Clinton’s blunt, unapologetic, ‘new liberal realist’ de-coupling of China policy and human rights concerns. The administration’s policy of always engage with bad guys can be seen as having elements of each - a liberal internationalist impulse to reach out to everyone in an idealist hope of finding common ground, and a ‘new liberal realist’ claim that (contrary to the insistence on human rights principles of shaming and isolating bad human rights actors that liberals used to hold) the ones you most need to talk to are your enemies.

The engagement strategy thus waffles, depending on who it is trying to convince of its virtue, between the idealism of finding common ground (Iran in Afghanistan, for example) with bad guys who might be improved, and the realism of talking to bad guys because they are bad. The result is that the ‘engage’ switch is always on, and everyone knows it. Incentives here are thus a big problem - is it better to be a bad guy with whom the Obama administration is desperate to engage, or a close ally who therefore is just another of 190 or so countries?

The most important incentive created by the always- engage policy, however, probably turns out to be with respect to the United States, not its interlocutors. A policy of always-engage has a tendency to overpromise and overreach, because it turns out - surprise! - that we don’t actually have common ground or common interests, and administrations of the past were not wrong to have identified these guys as bad guys and enemies. So the United States, in order to preserve the always-engage strategy, merely becomes what everyone else is in these kind of failed cooperation games - an insincere promiser. Maybe that makes the US extra-super-cleverly realist, those wily new-liberal-realists outsmarting everyone - or maybe it just makes the US look weak.

Liberal internationalism, to draw on Francis Fukuyama’s useful characterization of various traditional US foreign policy approaches (liberal internationalism, realism, Jacksonian nationalism, and neoconservatism) seeks to transcend the power politics of the international state of nature and govern it through international institutions and law.

The ‘new liberal realism’ seeks to unshackle American liberals from the strictures of human rights idealism and allow them a liberal form of realism by which, above all, to claim to be able to defend US security: the new liberal realism began in the liberal backlash against neoconservative democratization idealism in the Iraq war, seeking a language that would permit containment, accommodation, and, now, dialogue and discussion with dictators, abusers, and enemies. Its initial impulse was negative -a reaction against neoconservatism, which then spread to a reaction against idealism and even against being limited too strictly by human rights concerns in foreign policy, and finally to today’s form of engagement with any bad actor. The new liberal realism sometimes talks of being Jacksonian liberalism, but its roots are far shallower than that - Scoop Jackson was never an appeaser, and anyway the new liberal realism was mostly an electoral drive in the Bush years to convince skeptical voters that they could be as tough on national security as the Republicans, although, weirdly enough, not by bringing the bad guys the blessings of international law and institutions, but instead by appeasing them. It’s a telling way of looking at the world - you look tough by skipping the liberal international emphasis on law and instead emphasize your toughness by going to the bad guys and ... proposing to give them things. It would be a good thing if there were a strand of liberal realism that really did arise out of the Scoop Jackson tradition - but this is not it. Whether in Obama or Hillary Clinton’s hands, it is an opportunism derived out of the belief that the Iraq war was lost - whoops, won - well, whatever, and a desire to convince voters that Democrats are not all liberal internationalists.

But now this tension between liberal internationalism and the new liberal realism. The natural question is to ask, well, who wins the policy struggle? One answer is to kick that can down the road by a procedural response - engage, engage, engage. There’s a certain common ground between the idealism and the realism. And in any case, it doesn’t mandate
a substantive answer. But at the end of the day, I suspect that there will be a certain division of labor between liberal internationalism and the new liberal realism. It is this - and I stress it is not a fixed or absolute divide, just a tendency and matter of degree:

The new liberal realism will mostly prevail in the international, global, and transborder world. It will govern security relations - after all, it began life as a language by which to talk tough on national security to American voters. But it will also increasingly govern American-global economic relations - above all, the relationship with that country that currently owns US government and GSE debt and that same country that the Obama administration desperately hopes will buy trillions and trillions and trillions more, even if backed by dollars the Fed just printed. Human rights in China is going to take even a more backseat than it has in the past. The new liberal realism will be strongest in governing things that are ‘out there’ in the world - not completely, but in many important matters, like China.

What about liberal internationalism? Well, crucially, it too will (perhaps, this whole discussion is nakedly speculative) have its chief sphere of influence - and that will be inside the United States, institutions and law within the United States. Liberal internationalism might find that its greatest influence is as a means of altering, not places like Iran or even Burma, but the legal system of the United States itself. It fits with a general liberal world view by some American liberals that the United States is a wicked place, a parochially wicked place, which stands in need of cleansing by the institutions of human rights and universal values. Among the impediments to that moral cleansing are institutions of domestic law, the doctrine of popular constitutional sovereignty, America’s appalling lack of deference toward international institutions and values and justice.

The Obama administration seems to me unlikely to permit US security policy abroad to be made or unmade by the Security Council, the UN, the ICC, or any other institution; indications are the administration is leaving those American decisions firmly in firmly realist American hands. But it will, in my estimation, assiduously compensate by bringing the international law agenda home domestically, and pursue the remaking of internal American institutions according to the demands of the ‘international community’. John Bolton is right in saying, as he has long said, that international law as it actually touches the United States internally is in considerable part, or at least the controversial parts, about various advocates, governmental, international organization, and NGO, dissatisfied with the outcomes of American democracy and looking for an end-run around them. International law provides a vehicle for doing just that.

And that, in the end, is likely where the project of liberal internationalism finds its greatest purchase in the Obama administration. Not in security policy abroad. But in bringing foreign law to US constitutional adjudication, importing a wider set of treaty obligations into US domestic law, allowing many more claims under malleable concepts of customary international law ... none of which will have any impact on Burma or US Predator campaigns in Pakistan or, curiously, even so very much on Guantanamo, where the administration’s hypocrisy is now pretty much complete. But it is intended, and in my view is likely to have, very important - and hard to roll back, once embedded in judicial and regulatory process over two presidential terms - consequences for the people of the United States and their relationship to the state.

A great impact of the State Department in an Obama administration, as foreign ministry of the United States, in other words, might well be not with respect to the people of Darfur, or Congo, or Venezuela, or Burma, or China, or Georgia, or Russia - but Americans. Am I alone in finding that a peculiar role for the foreign ministry of the United States? The foreign policy machinery of the United States is an ambassador of sorts - but rather than one who brings the American view to the world, might turn out to be as much or more committed to bringing the global view to the Americans - imposed with the force of a re-shaped domestic law via claims of international law. All this is speculative, of course. But it does not impossible that the State Department, in its actual performance, turns out to be not so good at getting Russia to do things, but quite good at getting US courts and bureaucrats to go along with telling Americans to do things in the name of America’s international obligations.

Liberal internationalists who are serious about their world view make no apology for it, don’t, and why should they? It is an honorable view, even if I find it profoundly wrong. Yet surely I am not alone in finding something weird about the result that liberal internationalism, at least given its tension with the new liberal realism, turns out mostly to be about ‘improving’ we, the people of the United States. At the end of the day, then, international law is likely to be, under the Obama administration, about re-making Americans and their (guilty, wicked, retrograde, ignoble, parochial, un-universal, unworthy) institutions, and about conveying to those same Americans that they were quite mistaken to believe that they, the people, were ever truly sovereign over them. Maybe of course I turn out to be wrong about all this - these are just speculations about a very young administration. But it is not exactly inconsistent with the rest of Obama administration’s agenda to re-define outwards the extent and power of the state.

(Let me be clear on one thing, though tangential to this post. I support Dean Koh’s nomination, because he is an honorable man of every conceivable qualification for his post, and his is an honorable philosophy of governance, even if not one I embrace, and even if I would oppose very large parts of it as proposals for policy or law. The president is entitled to his nominees, and Dean Koh ranks among the very best. The WP’s Who Runs Gov blog says, “many defenders of Koh have wondered who is going to ... defend Koh.” Ted Olson has, and while I’m not anyone’s idea of a big name, I’m happy to do so as a center right conservative. It doesn’t mean embracing his liberal internationalism - I don’t. But in considering his nomination, that’s not the point.)

(I’ll go back and add some links and clean this up later. Work-in-progress, and I might decide to take it down in order to rework it as a longer piece on Obama administration foreign policy. I have to get back to my outline for a book on systemic risk and the financial crisis.)

(Update: Eric Posner has an excellent discussion of these issues in relation to the debate over the Koh nomination, at Volokh Conspiracy, April 6, 2009, Monday. He says something like the same as I say here: Koh is “not a cosmopolitan who seeks to sacrifice American sovereignty to foreign gods. He is a liberal who wants to move American law to the left. International law served as a handy vehicle, to be used or ignored to the extent necessary to reach this goal.”