Intervening militarily in Darfur compared with Iraq

A few days ago former Clinton senior national security staffer Susan Rice (likely headed for an even higher post in a future Democratic administration) was on some NPR talk show discussing the question of intervention in Darfur - military intervention of some kind. Rice was in favor, although vague on the details. On the other side was Eric Posner, law professor at the University of Chicago.

Rice adopted in effect a robustly idealist position, based in large part around the emerging ideal of the "responsibility to protect" - the norm that outsiders have an obligation to intervene to prevent such large scale human rights failures as genocide, crimes against humanity, etc., even if it means violating state sovereignty. It is one of those claims which divides US conservatives, in particular - neocons or, more broadly, idealists in foreign policy, including myself, Tod Lindberg, and other tend to support it. Realists - Eric Posner is prominently one - tend to oppose it. Lee Feinstein of the Council on Foreign Relations (and no conservative) has written an exceptionally good public report on the responsiblity to protect.

What interests me about Rice's position is to ask what, if anything but a horror of the label, separates it from dread neoconservatism. After all, neoconservatism in foreign policy has been correctly described as a willingness to use force for moral purposes, with a faith - misguided, many would say in the wake of Iraq - in the ability to use military force for the good. Well, Rice might reply, there are two differences at least.

The first is that the use of force we contemplate is multilateral - perhaps even the "realistic Wilsonianism" multilateralism that Fukuyama, Beinart, many Democratic Party worthies champion. It will not be, in other words, the foolish Iraq neoconservative intervention that lacked support in the international community but which was merely American unilateralism (not precisely an accurate statement but widely believed). Our intervention will be a coalition of nations backed by the will of the international community.

Is that true, however, if it were to come about? It is very unlikely that China would waive its opposition to Security Council action for forcible intervention in Sudan, either on its general hard sovereignty foreign policy position or its virtual renting out of its SC veto for commercial purpose, as in Sudan oil. The opposition of the General Assembly, consisting of the G77, the Islamic conference, and other folks who would reflexively support Sudan, is stronger still. So that means that the "international community" in this case comes down to NATO plus a few others. For many who describe themselves as "multilateralist," that is all they really mean - in practice, the support of France, Germany, and Western Europe. Multilateralism of essentially twenty countries that matter out of the 196 or so in the world. So if it is "multilateral," it is really only mini-multilateralism.

And for that matter, although Rice stresses the multilateral part, many of the folks gung ho on Darfur intervention believe that the US should simply form a coalition of the willing - shades of Iraq, anyone? - and intervene because the moral grounds demand it no matter who comes along or not. It is a moral imperative - and I must say that the difference between that position among liberal activists and neoconservatism is thin to nonexistent.

The second difference, it might be argued, between this kind of liberal interventionism and neoconservatism is that the intentions are different. In Iraq, the US intervened, it might be argued, essentially for its self-interest - oil, for some, preventively on the question of WMD for others (even if mistakenly, in the peformance). In Darfur, the US is intervening as liberals have long urged - for altruistic reasons alone, without interests, America the pure in the way that Albright always dreamed.

There are two problems with this second position. The first is that with roughly the same force and strength that the left constructed "interests" of the United STates in intervening in Iraq - oil, WMD, hegemony, etc. - one could just as easily construct "interests" for a US intervention in Sudan - oil, to start with. And mark that much of the world would see it in precisely that light - not a struggle of good and evil over genocide, but a struggle between the US and China, the hegemon and its rising challenger, over global energy supplies. In any case, the neocon case for war in Iraq was only made out late in the day as an interested preventive strike against WMD; during the earlier debate, it was made out on grounds as idealistic about eliminating a genuinely and unquestionably evil dictator, Saddam, as is now made out about genocide in Darfur. One has to be very much "inside" the idealist moral debate to see much difference between the former idealism and the latter one; anyone from the outside, looking as a realist or even simply as an outsider to highly refined Western human rightsism morality, would be hardpressed to see a difference. Both would look like idealist crusades, subject to essentially the same pitfalls.

Thus the second problem with the altruistic intent position is that it is, on the newly minted liberal-realism account of things, precisely what led the neocons into error on Iraq. Looking at Iraq through the rosy colored spectacles of the purity of their own intentions - this is Beinart specifically, but many others also - and having humility stripped away by moral hubris, neocons believed that their clean hands and pure hearts would, by themselves, lead to victory in Iraq. Purity of intention led to a massive miscalculation as to what people in Iraq wanted - we thought, liberal democracy, they thought, Islamic democracy dominated by my sect, tribe, ethnic group.

Precisely the same conflation of intentions purifying the path to victory awaits in Darfur, it might be thought. The neocons, according to Fukuyama, believed that their own goodness would overcome the tendency of grand social engineering projects (and this was also a tenet, but an ignored one, of neoconservatives) to produce unanticipated bad consequences. The same awaits in Darfur, or at least one who has taken on board the liberal realist critique of neoconservatism might be forgiven for so thinking.

One way that this tendency to substitute pure intention for reality might be found in Rice's suggestions for military action. She proposed, in the NPR interview, the imposition of a no-fly zone, or simply the destruction of the Sudanese airforce, including the helicopters that have supported the village slaughters, if the Sudanese government does not accept outside protecting forces. Military force would be used, as she said, to cause the Sudanese government pain, in the model of how Nato casued Milosevic pain in the Yugoslavia conflicts. But this strategic view has some grave weaknesses that, through the haze of good intentions, become invisible. The most important is that the Milosevic pressure situation is really very special. Strategically, much more likely is that the destruction of the Sudanese airforce does not lead to capitulation, but instead finding low tech means of doing the same thing. And the low tech solution becomes entrenched and much more difficult - impossible, even - to root out. Gradualism, gradual escalating of pain to a regime on the assumption that it will make rational decisions to capitulate, has not been a favored theory since McNamara's failure with it in the Vietnam airwar.

On the contrary, the favored view has been that of Powell and many others, that you prefer an enemy to fight with semi-high tech systems which are quickly overcome - if you proceed gradually, the enemy adjusts and, in adjusting technology downwards, makes it very difficult to combat. Only Wesley Clark, because of his experience in the very special Kosovo conflict, and former Clinton administration officials, seem to think any differently. Take away the Sudanese helicopters and it is very possible that they will discover that they can do genocide quite effectively without them - whereas if one had chosen a war of rapid and overwhelming force, they would not yet have had means of asymmetric warfare in place. And, of course, there are good reasons to believe that once the formal army is knocked out that, just as in Iraq, asymmetric forms of warfare, guerrilla warfare, terrorism, will spring up to sap the will of the outside forces.

In addition, if one goes beyond air war to ground war, even using coalition forces - there is no reason in principle why they are not subject to many of the contingencies that occur in Iraq. The force to space ratio is horrrendous; it is far from clear how the relatively small amount of troops that would be available for a very large space indeed would control that space. Many of the problems that beset the US in Iraq would find, if not precise equivalents, imprecise ones and analogies in seeking to act in Darfur. It is a significant mistake to duplicate the neocon error in Iraq and think that purity of intention and perception of moral goodness can substitute for a dispassionate and realistic plan on the ground - including the possibility that, genocide notwithstanding, there is no military option that would be acceptable to outsiders in terms of its costs. After all, that is essentially what we have accepted with regard to North Korea, largely on account of the risks of war to Seoul. Nowhere is it written in the sky that if you have good intentions and genocide to stop, there is a strategic plan that will succeed for you.

I say this as someone who is in fact committed to the responsibility to protect and action, with or without the so-called international community, with military force if necessary, to end the genocide in Sudan. Does that make me, as a sort of conservative, a neocon? Don't know and don't care. But liberals who think that they can see many and profound differences between their idealist position on Sudan and the neocon case for Iraq might consider that even if they are right that there is a deep moral difference between the two, operationally they suffer from many of the same difficulties. Gradualism runs the risk that the regime will discover far too soon (within a military paradigm) that it can get along without helicopters and many other things, and it assumes that regimes act rationally in response to pain by giving in rather than making other adjustments. Having too few troops in a vast country is practically guaranteed by the free-riding politics of an international community that specializes in insincere promises as a form of game theory - heck, it was practically guaranteed by politics even within the United States with respect to Iraq.

Anyone prepared - as I am - to use force in Sudan had better also be prepared to live with unexpected consequences that have their own (admittedly broad) analogues to Iraq - the possibility of ever wider civil war, even the breakup of the country, the uncertainties that Clauswitz, or for that matter Lincoln, noted go with war. There can be no assuming that the consequences of the use of force can be channeled as we desire, just because our hands are clean and our hearts are pure, any more than they have been in Iraq. I saw no indication that Susan Rice is prepared for that at all. And anyone contemplating the use of force in Sudan had better understand that the difference between this form of muscular liberal idealism and neoconservatism is far, far thinner than current political debates would have you believe.

My WSJ review of the writings of Swiss playwright Friedrich Durrenmatt

I first discovered the writings of the Swiss playwright and novelist Friedrich Durrenmatt in ninth grade high school German class, reading first The Visit of the Old Lady and later The Physicists. I loved the tragi-comic irony of Durrenmatt's 1950s and 60s plays, and in later years I read his novels off and on. I've read his work since 1970; Durrenmatt has largely since disappeared here in the US and in the English language. (Actually, it has seemed to me that he might have been eclipsed somewhat even in Switzerland - I gave a lecture a couple of years ago in Switzerland, French-speaking part, to be sure, and made a point of quoting Durrenmatt, but so far as I could tell, my lawyer audience did not seem to have a clue who I was talking about.)

So it was a pleasure when the Wall Street Journal book review called, at Christopher Caldwell's lovely suggestion, to ask if I would like to review a new University of Chicago Press three volume selection of Durrenmatt's plays, fiction, and essays. It came out today, Saturday/Sunday, October 21-22, 2006, in the Pursuits section of the Journal, here (subscriber link). (The University of Chicago Press has set up a website on Durrenmatt, here - it's very good, worth a visit to find out more about this major post-war European writer.)

Mixed in with the discussion of Durrenmatt's aesthetics, I also make a comment about Swiss neutrality, and then the concept of "humanitarian neutrality" (I first took up this topic of humanitarian neutrality in an academic article, here). That brief comment in the review is this:

But of course Swiss neutrality has a powerful moral logic of its own, exemplified by the humanitarian efforts of the International Committee of the Red Cross. Humanitarianism, in short, may require neutrality as a condition of its very existence. But that hardly means that neutrality is the highest virtue, the most admirable moral position, in conditions of conflict.

While neutrality may make humanitarianism possible, it will always be a derivative virtue in a world containing evil, a deliberate and knowing suspension of moral judgment for the sake of moral good, such as the relief of suffering. But if evil is not to triumph, we cannot all be neutral. Someone must fight for what is right: If there is to be a Red Cross, there must also be a Churchill. The Swiss sensibility can be reluctant to acknowledge this imperative, and sometimes has been known to accept a lofty moral relativism as the highest good of all. Dürrenmatt himself was not entirely immune to this way of thinking.

***
(Update: Dean notes below in comments that I said Cambridge UP, not Chicago, in the original post. Apologies, brain on hold, was actually staring at the three volumes on my desk as I mis-blogged yesterday. Corrected in original post, and thanks Dean.)

Growing official attacks on UK multiculturalism ... am I prescient or what?

Following UK Leader of the House of Commons (and former Foreign Minister and Home Minister) Jack Straw's attack on Islamism and the Muslim "blackout" veil two weeks ago (Melanie Phillips' comments here; contra Straw, from the New Statesman, Ziauddin Sardar, here), and more broadly on the bad, bad policy of multiculturalism, UK polls show wide public support for his view, then this article in the Daily Telegraph by Denis MacShane, former Labour MP and foreign office official (thanks NRO):

At long last, the debate on Islamism as politics, not Islam as religion, is out in the open. Two weeks ago, Jack Straw might have felt he was taking a risk when publishing his now notorious article on the Muslim veil. However, he was pushing at an open door. From across the political spectrum there is now common consent that the old multicultural emperor, before whom generation of politicians have made obeisance, is now a pitiful, naked sight...Chinese walls in Whitehall prevented effective inter-departmental co-operation. The Home Office, in addition to allowing Hamza to poison the minds of a generation, refused to return to France Rashid Ramda, who was wanted for questioning in connection with the 1995 Paris Metro bombings – a foretaste of our own 7/7. I hated having to go on French television and waffle defensively at a policy of not extraditing this evil man. But the prevailing culture was to deal with religious leaders, not elected politicians. Whitehall sought the advice of friendly theologians from Cairo, or Muslim ideologues such as Tariq Ramadan. This denied political space to British citizens of Muslim faith, women as well as men...Some difficult politics lies ahead. It is bizarre that neither David Cameron nor Sir Menzies Campbell have spoken. At some stage, the metro-populism of Notting Hill will have to engage with the worries of British citizens who understand a problem long before Whitehall gets it. There is a new generation of British Muslims who want to engage in politics and reclaim the issues that concern their communities from religious-based outfits or those who see their task as importing foreign conflicts into domestic British politics.They must be encouraged before it is too late.

In my TLS review of Francis Fukuyama's book, After the Neocons, I discussed the issue of Islam and multiculturalism this way:

[D]emocratic regime transformation in the Middle East will not address the problem of Islamist extremism and terrorism, because they are phenomena not principally of the Middle East, but of Muslims in the West confronting the loss of identity. Even assuming that the transformative strategy managed to stabilize Iraq, [Fukuyama] argues, the social precursors of terrorism are not to be found there. They are drawn from places we cannot attack with military force – Hamburg, London, the Parisian banlieues. Thus the phenomenon of Islamist terror is not a regional, political or even sociological problem; it is, rather, the accumulation of individual psychologies, massed together in shared and yet still highly individual narratives of resentment, exclusion and the search for Muslim social and economic integration, and particularly Muslim middle-class integration, within European pluralist modernity. Even if the birthplaces of the 9/11 hijackers were Saudi Arabia and Egypt, this argument runs, their jihadist spiritual formation was in Western Europe. The Bush administration launched, on this account, a war that missed the point, targeting the wrong region and the wrong country.

[These observations] are a powerful prescription, in my view, for deep-seated ideological changes in Western societies and their states, though perhaps not the changes that Fukuyama has in mind. The changes they indicate the need for, I would argue, involve the explicit abandonment of the doctrines of multiculturalism in Western societies, doctrines that have so damaged and weakened them. They are an argument for a vigorous reassertion of traditional liberalism, above all its guarantees of free expression, even for blasphemy, and of a traditional liberal refusal to tolerate the intolerant. At some point, Europe and America will have to defend more vigorously – in the face of the cultural challenge of Islamism and other violent fundamentalisms, their broadly liberal inheritance (in America, liberal pluralism, to be precise, rather than liberal secularism, descended from European anticlericalism).

The core of that defence is a clear attitude to religious extremism. Islam – “moderate” Islam – must take its place alongside other religions. That is to say, it must dwell within the cage of tolerance, an iron cage that insists without apology that religions tolerate the liberal secular order of public life. Muslim communities in the West must know that the larger society will not compromise its demands that all respect the values of a liberal society; they must also know that they will be protected with force against the demands of extremists from within their own community.

I am skeptical that any long lasting debate is underway in Britain on these issues; I think the multicultural ideology has essentially won and is pretty much immovable in the UK. It is too deeply entrenched with leftwing ideology of anti-colonialism, resentment, and is also too deeply entrenched with political rent-seeking interests of various kinds. A country in which police now consult in some districts with local religious leaders on whether it is okay for them to go after a particular target on terrorism charges has pretty much lost the struggle for a neutral public sphere or the pretense of being a liberal state or society. It may call its multicultural sensitivity the gracious sensitivity of the majority for the sentiments of a minority - and no doubt at one point it was precisely that - but these days multicultural accommodation in Britain seems merely a poorly painted over best face put on ... fear.

James Salzman's A short history of drinking water on SSRN

Jim Salzman, my old friend and colleague from WCL before he decamped to Duke Law School, has posted on SSRN a fascinating paper on the history of potable water.

I myself come to this topic by a roundabout means - the problem of potable water in war and armed conflict. It is widely understood that in most conflicts, vast amounts of the harm inflicted on noncombatants arises from the lack of safe water. Disease, thirst, and so on all arise within days of the shortage. The International Committee of the Red Cross has been working on various initiatives - but if you were to ask me to identify an area in which the US government could work well with the ICRC and others to come up with a combination of legal standards and technical/technological solutions, this would be it. But if your interest in water arises from war, then the general history of drinking water becomes irresistible, and that is what Jim has provided here, apparently as part of an on-going book project. I bet that it is a book with potential markets among a general audience - it's a pretty easy book to see on the general nonfiction shelves.

Anyway, congratulations to Jim on a terrific paper; here is the abstract and downloadable paper at SSRN:

From earliest times, human societies have faced the challenge of supplying adequate quality and quantities of drinking water. Whether limited by arid environments or urbanization, provision of clean drinking water is a prerequisite of any enduring society, but it is a daunting task for drinking water is a multi-faceted resource. Drinking water is most obviously a physical resource, one of the few truly essential requirements for life. Drinking water is also a cultural resource, of religious significance in many societies; a social resource, access to water reveals much about membership in society; a political resource, the provision of water to citizens can serve important communication purposes; and finally, when scarce, water can become an economic resource. As recent conflicts in developing countries make clear, managing and mediating these many facets of drinking water is no easy matter. Understanding a society's ability to provide clean drinking water to its citizens, examining how it recognizes the different natures of this vital resource, provides a unique prism on the society's organization, equity, and view of itself. In seeking to understand better how societies manage such a critical resource, this article considers three questions. How have different societies thought about drinking water? How have different societies managed access to drinking water? And how have these changed over time? These questions are, of course, interrelated. How we think of water, whether as a sacred gift or a good for sale, both influences and is influenced by how we manage access to drinking water. While not an obvious issue to us in 21st century America, management of drinking water as a resource - who gets it, when they get it, and how much they get - matters a great deal. Written for a symposium celebrating the scholarship of Carol Rose, this article synthesizes research to date from an ongoing book project on the history of drinking water. Using a case study approach, we journey on a wide-ranging geographical and historical tour, briefly exploring drinking water management in societies across five continents, from 5,000 years ago up through today. Along the route, we find that something as seemingly simple as drinking water washes clear a society's views toward the role of government, norms, and the market.

Muhammad Yunus wins Nobel Peace Prize for microfinance

Muhammad Yunus and the microfinance bank he founded, the Grameen Bank, today won the Nobel Peace Prize 2006. It was an award well deserved. I'm someone who does a lot of work in the microfinance and development finance area - I currently chair the board of the nonprofit media venture fund MDLF, which has emerged as financially the largest media assistance organization in the world - and like anyone else in the field, I have studied Grameen Bank closely and intensively. Yunus' contributions to the improvement of possibilities for poor have been very great, in large part because they point crucially in the direction of understanding the role of markets in improving the lives of the poor. Markets are not just for the benefit of the global middle classes and above. Indeed, the implications of his work for understanding the economic conditions of poverty have long made me think that he perhaps ought to have been awarded the economics Nobel (For that matter, I also thought that the Nobel prize in medicine ought to have been awarded to Heimlich of the Heimlich maneuver.)

My views on microfinance itself are somewhat complex, and are explored in an academic article from 2002 in the Yale Human Rights and Development Law Journal, here. It is a decent academic primer on the theoretical literature on microfinance, as well as expressing a somewhat complicated view about the relationship of microfinance to globalization and the global market system. There is some new, very good literature in the microfinance field, and I'll try to post about it later on.

So I applaud Yunus his Nobel Prize. Yet let me also add something important. I am not a starry-eyed worshipper of microfinance as a silver bullet in international development. If you read over my article, you'll see that I think has significant limitations. Some of them can be summarized as follows:

First, hard evidence that microcredit actually substantially shifts longterm household outcomes is not as easy to come by as you might think or hope. I strongly think it is in fact true, but if asked to show hard data to prove it, that task is much more difficult than you might have thought. And for ripple effects on whole communities, the hard data task is that much more difficult. The often-touted repayment rate is some indication of success of the program, but it is mostly an indicator of the success - survival, really - of the lending institution. It is not directly a measure of improvement of longterm household income.

Second, Grameen bank itself is not really a model of what microfinance has been said to mean among the most enthusiastic - the poor bootstrapping themselves out of poverty. The bank itself receives various subsidies, including indirectly from the Bangladeshi government. Moreover, the bank is one of the least transparent financial institutions I have ever studied. And the whole sector of microfinance worldwide is and has to be massively subsidized. That is not going to change - nor should it. The measurement of microfinance's success is not the fact that it requires subsidies, but that it produces outcomes exceeding those of any other available social investment policy at the household and community level.

Third, the microfinance model is gradually coming to be seen less as an income generation mechanism on its own - it is unlikely that it generates that much revenue - than as a technical training program to bring poor people into the market economy. As a financial resource, it is extraordinarily labor intensive; the repayment rates are impressive, but they do not take into account the monitoring costs that such repayment rates seem worldwide to require in microfinance - and when those transaction costs are taken into account, the business model requires massive subsidies. Those subsidies can be justified, but largely as a training and educational tool, not as finance. (This is counterintuitive, and very hard to do in practice - essentially operating as a genuine business, and requiring market discipline even within your subsidized environment, while at the same time being aware (sort of at the meta-level) that fundamentally your contribution is as much or more technical knowledge and assistance to people without real experience of money, markets, and credit institutions. It is hard to maintain business discipline institutionally if you know somewhere in the back of your mind that you are also, or mostly, an species of training or educational institution - it produces a difficult mismatch of expectations within NGO mission terms.)

Fourth, although in the first decades of microfinance, the vision was one of the poor financing themselves out of poverty with, essentially, seed capital, it is now widely acknowledged that it must go hand in hand with public investments in public goods - health, education, and so on. Those goals tend to reinforce microfinance and viceversa, but essentially as consciousness raising tools to persuade people of the value of those public goods, such as education, especially for girls who would otherwise be left out.

Fifth, microfinance does not really address the problems of the "poorest of the poor" - it is really about the poor, rather than the really, really poor. This is something now acknowledged pretty much across the board. The poorest of the poor tend to live in areas of high insecurity and failed states - and in those places, it is practically impossible to run a microfinance program, or any other form of investment, public or private. I am a huge fan, and practitioner, in the microfinance area, but it is not a silver bullet.

Sixth, the whole microfinance as women's development is somewhat oversold to credulous, on the one hand, and ideological, on the other, Western aid agencies with agendas, and in part is an artefact of those Western agendas. The utility of focus on women's empowerment is true in part, but much less so - much less universal - than prevalent ideology would suggest - and there is a gradual recognition that it is better in many situations to focus on households rather than women as such as the micro-development unit. At the same time, it is no accident that Grameen Bank and its projects have been targets of Islamist violence in Bangladesh, because of their identification with women's empowerment.

Seventh, it is not always clear in particular circumstances whether microfinance is about drawing poor people upwards into the global market (and simultaneously the market down to them), or whether it is about creating a permanently subsidized, "faux" market that never really draws the poor into the larger economy beyond that created by NGO funding itself. One has to look case by case to see what the economic interconnections are. (I discuss this in much greater depth in my Yale article.)

One could make other critiques, but this is enough to indicate a certain caution about overselling the idea.

But - and this is a big but - all that said by way of caution, let's please not lose sight of the forest for the trees. The big picture - the one that justified the Nobel Peace Prize - is the recognition that markets matter to poor people too. That they have to be drawn into globalization. That the worst thing is, as (of all people) Kofi Annan said, back in 2000, the problem is not globalization, but those who are left out of globalization, those with no skills or anything of any use to contribute. The condition of the world's poorest people is not one of exploitation, in the old fashioned marxist sense - if it were, the world's poor would have something with which to bargain. On the contrary, the tragedy of the world's poorest people, especially, is that they are genuinely surplus. They are too poor to even be worth exploiting.

And surplus in the ugliest way - looking at Africa, for example, I would say that secret wish of the world's bourgeosie is not that Africa get richer, but that somehow Africa would be (humanely, of course) depopulated and turned into one big game park and environmental preserve. Of course, we don't want anything bad to happen to all those poor people - but if they suddenly just somehow hadn't ever existed, really, wouldn't that have been the best thing? That's what I mean by describing them as superfluous, surplus population.

Microfinance in the very large picture of things is one of those ideas that helps bring poor people into the market, to find a place in the market, rather than being part of the superfluous population of the world - people less valuable, apparently, than cheetahs. It is not the only idea in this vein - Hernan de Soto's views on property rights and collateral, for example, are another - sure, they aren't the only thing, and evidence suggests that that concept, too, has been oversold (the Economist recently had a story on exaclty that). So is the broad concept that Wolfowitz for a while was attempting to push at the World Bank, until the European socialist globalcrats overrode him - that the problem in the developing world in the first place is governance, because without it, public or private investment is bound to fail.

This cluster of ideas about drawing poor people into the world's economic platform is fantastically important, if only to get us beyond the dirigiste, global socialist concept of international development as simply shoveling money that never seems to accomplish its purposes. That's the point - no, of course it never works out as well as promised in theory, and it has real limitations, but don't lose sight of the larger picture - the one for which Yunus deserves the prize. And the fact that he comes to it from the subcontinent's Left is only all the better; he is not a neo-liberal, far from it.

A few relatively new microfinance readings: Beatriz Armendariz de Aghion and Jonathan Morduch, The Economics of Microfinance (MIT Press 2005), absolutely superb; David Hulme, Microfinance: A Reader (Routledge, 2006, costs a fortune), coming out end of October 2006, haven't seen it yet; and Joanna Ledgerwood and Victoria White, Transforming Microfinance Institutions (World Bank 2006), essential practical how-to manual for institutions, but also a great introduction.

(As a side note. There has been some discussion over at Opinio Juris and other places about the curriculum for teaching international economic law. I have taught international business transactions and other international economic law courses for a long time, now, and I find that I am able to usefully integrate many of the international development transactions that I actively do in the development finance area in the course of my pro bono practice into my IBT teaching. Lending transactions, equity deals, joint ventures, letters of credit, services agreements, licensing, etc. - teaching as I do an IBT class that focuses exclusively on transactions (at our school, we make trade a separate intro class, which I think is extremely sensible), I find development transactions both interesting for students and, in some ways, helpful teaching tools because of the fact that these transactions often involve signficant risks, political and legal risks that are obvious to beginning students in ways that risks in developed country transactions are not. Here is a link to my 2005 IBT final exam, involving post-war reconstruction in Africa, conflict diamonds, and other things.)

Spatializing the description of method in international law scholarship

Imagine the various methodologies in international law scholarship represented on a three dimensional Cartesian coordinate grid, with the following axes:

Three Explanatory Axes

Horizontal axis:
The sovereignty continuum.

This is the line along which are located positions on state sovereignty, with sovereignty for its own sake at the left extreme, democratic sovereignty midway along the left side, and the right extreme occupied by global parliamentary governance, with liberal internationalism somewhere along the right side. In the middle would be situated sovereign state multilateralism - the balanced midpoint admitting both of sovereign states and multilateral cooperation. I've written a lot on how to set out positions along this line, in my Squaring the Circle review of Anne-Marie Slaughter's A New World Order book, for example, or in my U of Georgia review essay on Goldsmith-Posner's Limits of International Law book.

Vertical axis:
The descriptivism versus prescriptivism/normativism continuum.

This vertical axis describes the range of positions between pure empirical descriptivism at one extreme (we'll put descriptivism on the lower half of the vertical line) gradually ascending into other descriptivist positions, such as rational choice theory (and perhaps various international relations power paradigms) somewhere along that line (it is not clear exactly that they form a graduated line, in fact), and normative claims, at the other extreme, on the upper half of the line.

By prescriptivist or normativist positions, I mean international law methodologies claiming that the proper subject matter of international law scholarship set forth normative moral claims that should (and perhaps must, overtly or covertly) undergird international law, both positive and customary. The prescriptivist claim at its strongest is that a purely descriptivist approach cannot make sense out of international law because the materials of international law only make sense understood and refracted through a moral prism, without which it is not comprehensible. And the highest task of international law scholarship is to connect that moral vision with law.

The normativist positions have been those of the leading theorists of international law of the last generation in the United States - Louis Henkin, Thomas Franck, Henry Steiner and, in the next generation, Harold Koh. These normativist positions have been associated with what I suggest is actually a separate proposition, viz., a certain answer to the sovereignty question which, in the case of all these normativists, is liberal internationalism. There is a strong tendency in the literature to conflate a normative approach to methodology with a certain normative result with regards to the sovereignty issue, viz., liberal internationalism. Part of the point of this spatializing exercise is to separate out those propositions; to admit of the possibility, for example, that one might be a normativist - but endorse a different normative answer to the question of sovereignty, eg, democratic sovereignty. I would locate myself in that position.

The descriptivist positions, by contrast, have been those of the rising generation of theorists, and have been conflated, in their turn, with another answer to the sovereignty question, viz., sovereign state positions. These scholars include, of course, Eric Posner and Jack Goldsmith. However, as the Georgia conference on The Limits of International Law made clear, a large cohort of new international law scholars is now rising that is both descriptivist and, broadly speaking, liberal internationalist. Again, a large part of the point of my seeking a spatial representation of these positions is to make clear that sovereignty questions are separate from methodology questions, however one answers them.

I have been struck - I'm sure others have been struck - by the relative paucity of rising young scholars who embrace the position of the older generation of normativists and liberal internationalists; the rising generation, even when it seeks to defend liberal internationalism, seems intent on doing so on methodologies of game theory, rational choice, instrumentalism of various kinds, and not an appeal to morality itself. That is one reason why Cornell's Robert C. Hockett's recent review of The Limits of International Law in the Minnesota Law Review is so interesting - a young, very sophisticated scholar affirmatively asserting both normative and liberal internationalist propositions.

These two axes, horizontal and vertical, are two that I have described previously. I have suggested where various paradigmatic scholars, or at least key works, might fall within that grid. Thus, for example, Goldsmith and Posner's Limits book would fall in the lower left quadrant, as a book endorsing democratic state sovereignty but also embracing rational choice descriptivism. In the upper right quadrant would be many of the classic international law theorists of the previous generation or so - Henkin, Franck, Steiner, Koh - prescriptivists of a liberal internationalist commitment. In the bottom right quadrant might be some of the new generation of thinkers - Oona Hathaway and Ariel Lavinbuk, perhaps, liberal internationalist and yet descriptivist. I myself would probably count as upper left quadrant - while respectful of the new descriptivist methods, still essentially a moralist in approach, yet a moralist committed not to liberal internationalism but instead democratic sovereignty.

My purpose is not at all to "peg" anyone anywhere that they would not self-describe - which is partly why I thought the project so suitable for an interactive wiki, in which international law scholars could be invited to locate their various articles themsleves. My purpose is genuinely descriptive, to try and find a new way to describe and represent the methodological world of international law scholarship. I should like to test whether the effort to "spatialize" the multiple vectors of international law scholarship proves useful in describing the field. I am more or less convinced that it helps, if it hedged by enough caveats - the most important being that simply putting positions on a line does not, by the mere act of putting them on a line, separate one position from another merely as a matter of degree and not kind. And quite possibly, the positions described here do not fit "along" a line at all - it may impose a certain picture that is in fact quite misleading. Nonetheless, I persist in thinking that it is a useful approach at least for these two axes.

I have now thought to add a third axis. This one is much more difficult to conceptualize as an axis, and that quite possibly because the positions I propose to stick thereon do not really fit along a line with each other. Nonetheless, let me try it out:

Spatial axis:
The exogenous versus endogenous explanation of international law methodology axis.

What do I mean by that less than transparent title? Exogenous versus endogenous? I mean by this the traditional distinction between explanations that draw from within the subject matter to be explained - explain on its own terms - and those that draw from outside the subject matter to explain it in terms of something else. One might contrast, for example, doctrinal explanations for explaining the law, explanations that draw upon legal doctrine itself to explain the law, and which thereby assert that the law has its own explanatory power - versus explanations that assert that you can only understand the law, or some aspect of it, by looking to some other explanation, such as economics, psychology, morality, etc., whatever that exogenous source of explanation might be.

Of course, this distinction is well known and applied in many fields besides law. Absolutely nothing new here - which I why I think it is useful to apply to international law scholarship and method. At the center point of the axis, we might put positive law and doctrine, as the essence of engogenous explanation. Then moving slightly further out, or perhaps embracing positive law and doctrine, we can put the Legal Process school, as one which is still fundamentally endogenous. We might also put here all the various clinical methodologies in international law, considering that they operate, behave, at least, as though the law really were the moving agent, the source of explanation for why things behave they way they do. Then, moving further out, we can begin to take on more exogenous forms of explanation, reaching outwards to legal realism, and from there to "critical" theories of law that do not necessarily explain law through law at all, but see it as the floating superstructure atop something else entirely.

What are some of the explanatory theories of international law that might fit on this line? Positive international law; advocacy and clinical methodologies that rely on legal process being taken seriously; legal process school; law as policy school; various IR theories that essentially explain law exogenously through game theory of power relations; sociological theories of international law, such as that being developed by Ryan Goodman and Derek Jinks, that seek to explain, at least in part, the binding force of international law through socializing forces; feminist legal theory; intellectual history of international law; intellectual history of international law as a profession (Koskenniemi); legal critical theories such as CLS or critical race theory; and critical theory more generally.

Certainly there are others. And particularly in this axis, I am concerned that the grounds for thinking that they can be ordered serially along a line are very weak and perhaps quite counter-productive. Moreover, I would also query whether, even if you think that it is possible to put these points serially in some fashion, this line has "midpoint" that corresponds in any meaningful way to the "midpoint" of the sovereignty axis or the normative-descriptivist axis. (One solution to that might be to order the line starting with postive law at one end, and getting more and more exogenous going further outwards - and then duplicate that ordering in the other direction of the line, so that the same positions and orderings appear for the remaining quadrants.)

It is, to be sure, dangerous to put points on lines. It has the effect of reifying the sense of differences of degree, not kind. And in some of these cases, there may well be no meaningful way to order them on a line - they are just different kinds of explanations. Still, I propose, in my upcoming paper, to suggest that the possibilities of insight through spatialization outweigh the disadvantages, provided it is taken as a limited tool.

Independent and Dependent Variables

Oona Hathaway and Ariel Lavinbuk, in their review of Goldsmith and Posner in the Harvard Law Review, essentially move to prise apart two conceptual issues in international law scholarship, what they call "rationalism" and "revisionism." Without wanting to put my labels on them, in some respects their "revisionism" matches up to my horizontal axis of sovereignty - the revisionism at issue being sovereignty versus liberal internationalism. Likewise, their rationalism somewhat matches up to (some of) the descriptivist positions I have put on the vertical axis of descriptivism/prescriptivism. And, as they comment, there is a perennial but unjustified conflation of the two positions, just as, we could add, there is a perennial but unjustified conflation of the normative and liberal internationalist position.

The question that arises out of the separation of the horizontal and vertical axes, then, is the relationship of the two axes once they have been prised apart. As axes, they can of course be conceived as variables, and the question that arises is whether they are (i) two independent variables, (ii) two dependent variables of a third independent variable, (iii) the sovereignty variable independent and the methdology variable dependent, or (iv) the methodology variable independent and the sovereignty variable dependent.

The big reasons why I find it helpful to spatialize the axes, in other words, are, two. First, to show that the two can be prised apart and are more accurately thought of as separate issues, separate questions. Second, to be able to frame methodically the question of independence and dependence. (Note that I have deliberately put the methodology axis as a vertical axis, in order to avoid the automatic reflex to assume that if it is horizontal, it is intended as the independent variable. I want to regard all four possible relations of independence/dependence as genuinely open.)

And here we have a first contrast of positions. The Hathaway-Lavinbuk position is, essentially - if I am wrong, I invite them to correct me, but I believe this is correct - that what they term revisionism is independent of rationalism - and vice versa. The two variables are independent, that is, (i) above. By contrast, at least as I read Goldsmith and Posner, and understand them to accept (and I invite correction on this), they see rationalism, rational choice and game theory, as fundamentally forcing the position on the sovereignty axis - in other words, they hold (iv), the methodology variable independent and the sovereignty variable dependent, at least (and this condition is important) insofar as the position on the methodological line is true.

The primary claim of Goldsmith and Posner can thus be restated thus: If (and only if) the methodological point adopted - rational choice in their case - is a true description of the world, then the range of true positions on the sovereignty axis (the revisionism variable) is forced (to the sovereignty side of the line). But if, on the other hand, one chooses a methodological position that is false, then they make no claim as to forcing a position on the sovereignty axis, and indeed make no claim at all.

(And note that this truth-value claim is crucial to the kind of analysis adopted here. Unlike in, for example, economics typically, or many other parts of science, the fact that I have arranged the positions according to some non-arbitrary, some partly meaningful criteria along a line (or so I hope), does not make the positions simply different by degree. On the contrary, there remain significant differences of kind at least possible. The crucial implication is that a move along a line, a change of position along the line - even from one adjacent position to another - might move all the way from true to false as a description of the world. Thus, when describing a change in a presumed independent variable, it does not necessarily produce a corresponding change in position of the presumed dependent variable - because the change in independent variable might have moved from truth to falsity, leaving no implication for the dependent variable. This is part of the risk of using this kind of spatialization - the assumption that movements along the line are all movements along changes of degree, not changes of kind, and not changes of kind that involve moving from a true proposition to a false one.)

Where Next?

Even with these cautions and warnings about presuming too much about lines and variables, I suggest that this kind of spatialization has some clarifying value to help frame the debate about explanation in international law scholarship. It is not rocket science, obviously - but that is part of the point. I have deliberately sought relatively uncontroversial propositions about method in order to seek to construct a model that might receive relatively broad agreement as a framework for debating the questions of what is independent and what is dependent, if anything. I am seeking to eschew theoretical commitments in it, but instead seeking to provide a frame.

However, I have not sought in this post to do the more difficult, and much more fraught, task of defending a certain, or any particular, ordering of the exogenous-endogenous axis, or how it relates to the methodological and sovereignty axes.

Nor have I sought to explain where I would locate in this discussion the traditional axis of realism and idealism in international relations - although I would say briefly that conceived as an explanatory proposition, which is why we care about it here, it essentially comes in as an explanatory position largely exogenous to international law, and hence a position on the exogenous-endogenous explanation axis. And expressed that way, located there, on that axis, it becomes another way, perhaps, of explaining why realism and idealism have never been central to methdology in international law (without expressing a view on whether that is a good thing or not).

(I'm delighted to say, too, that Jose Alvarez has kindly invited me to participate in a panel discussion on scholarship issues in international law at the joint AALS-ASIL meeting in Vancouver next June. That discussion will be focused on more "critical" questions of scholarship, the academy, its relation to the world of international law, advocacy, etc., but perhaps some of these concepts will still be relevant. I will also post something about curricular revision at Harvard Law School, adding multiple international and comparative law components to the first year curriculum. In particular, I want to address not the usual public issues that I blog about, but instead the international economic law issues that I teach - what on earth should the IBT course cover, for example?)

I very much welcome comments on this project, either in the comments, or else to my email at school: kanders@wcl.american.edu.

(Note: This post originated back in the spring, when I wrote a post on blogospheric scholarship, responding to a Harvard Law School conference discussion on blogs and scholarship, and then extended in discussions at Opinio Juris, (my original post here). It suggested a certain kind of "wiki" scholarship appropriate to blogs and online work because it would allow collaborative postings that would allow scholars to self-identify within the "framework" I have been tentatively urging above. I have been spending quite a lot of time between other, more mmediate projects thinking about the methodology questions in international law scholarship, and wanted to add something else about it beyond that original post. My plan is to get a paper out that proposes this framework - and then to somehow get the tech people at my school, or somewhere, to set up a modifiable web site with cool graphics to be able to show this graphically. I'm not so good at the tech stuff.)

'Law and Terror', my new essay on legislating counterterrorism in Policy Review

My new essay on legislating US counterterrorism policy, Law and Terror, is about to be published in Policy Review, No. 139, October-November. I have posted a pdf at SSRN, here (there are still a couple of typos to be corrected in that pdf, but I wanted to get it up now, in advance of the November election). This is the abstract on SSRN:

This short policy article argues that both the Bush administration, in its final two years in office, and Congress have an obligation and interest in taking US counterterrorism policy beyond the current 'war on terror' operated on the basis of executive power and discretion, to comprehensively institutionalize it for the long term through Congressional legislation. It argues that the Military Commissions Act of 2006 is mistakenly aimed merely at satisfying the narrow requirements of the Hamdan decision, and is far from the comprehensive legislation that institutionalizing counterterrorism policy requires in order both to have democratic legitimacy with the American people and to have a permanency that goes beyond the discretionary whims of any particular administration.

The article very briefly lists topics which comprehensive legislation would address - surveillance, detention, rendition, interrogation and the definition of torture, a domestic intelligence agency, classified information reform, military tribunals, a special civilian counterterrorism court, legal protections for interrogators and indemnities to detainees for mistakes, rules on uses of force short of armed conflict, the role and interpretation of international law in US counterterrorism policy, and Congressional oversight. But it argues that the underlying issue is one of principles to guide counterterrorism policy, and that what matters first in Congressional legislation is the enactment of American values through a democratic process; the advantages accruing to executive discretion and its approach to counterterrorism have now been exhausted.

Given profound disagreement among Americans as to the proper balance of national security and civil liberties, and as to what concretely constitutes such things as torture, degrading treatment, etc., the only appropriate mechanism for resolving such deep disagreement in a democracy is to require legislators to vote on actual techniques of interrogation and intelligence gathering - in detail, specific descriptions, without euphemism or generalities. Is, for example, waterboarding always torture and therefore always forbidden? Anything less than such specificity - a key failing of the Military Commissions Act - dodges the question of democratic legitimacy. Let legislators raise their hands and vote on the specifics that enact America's values, and reveal where precisely, without abstraction or platitudes, they locate the necessary tradeoffs between security and liberties.

Charles Dunlap on why using the military in law enforcement is a bad idea

(Welcome, Instapunditeers, and thanks, Glenn, for another Instalanche! I've cleaned up the grammar in this post a bit and added some links and references for further reading if anyone is interested.)

Charles Dunlap is one of the finest military lawyers around - deputy judge advocate general of the Air Force - and someone who knows as well as anyone in the US does the pros and cons of having the military involved in law enforcement in both practical and theoretical ways. This op ed column in today's Washington Post, "Putting Troops on the Beat," September 30, 2006, here, is very important reading:

... The 1878 Posse Comitatus Act bars most direct military involvement in law enforcement, with several exceptions, including civil disturbances. Since Sept. 11, 2001, such threats as terrorist use of weapons of mass destruction have given the armed forces new legal authority. Should there be more?

Americans don't seem especially worried about increasing the full-time military's role. Despite troubles in Iraq and detainee abuse scandals, polls show that the armed forces are the most trusted institution in American society. Nevertheless, few models exist around the world in which the recurring use of militaries in law enforcement furthers democratic values.

Yes, it's true that military troops, unlike civilian police, can't quit their posts. But it's dangerous to think veterans of the mean streets of Fallujah would necessarily approach a task the way Big Easy cops on the beat would. In this respect, the military's versatility can be misunderstood.
Most conventionally trained soldiers advance on potential threats with a view toward destroying them, not arresting them. They don't expect to reason with "the enemy." A soldier's authority is his weapon and his willingness to use it.

Typically, police rely on public respect for the rule of law, expressed in the authority of the badge. They exercise the studied restraint the judicial process requires. Suspects are not "enemies" but citizens, innocent until proven guilty. The elimination of "threats" is the job of the courts. Weapons are defensive last resorts.

Converting the war-fighting mind-set of the professional military to one that readily accepts the risks -- and delays -- inherent in policing under our Constitution can be extremely challenging and confusing to those wielding the guns and attempting to establish order.

I've written on the differences between soldiers and police before, in the peculiar context of a 1997 panel discussion at the American Society of International Law on law and literature. I chose as my text Nicholas Shakespeare's novel of the capture of Abimael Guzman, charismatic founder of Peru's vicious Sendero Luminoso terrorist/guerrilla group, The Dancer Upstairs (I strongly recommend, by the way, the film version directed by John Malkovich). (In two parts, pdf, here and here.) I talk about three differences, which are quite similar to what Dunlap says above:

First, police depend for their authority on the fundamental legitimacy of their role in society - the fact that they are perceived as the face of the rule of law and, hence, represent the extraordinary, rather than routine, intervention. The authority of soldiers, as Dunlap well puts it, is their weapon and the willingness to use it. Armies establish their "legitimacy" by killing and destroying opposition to their will. Police, by contrast, must rely, 99.9% of the time, on their legitimacy within a community, the fact that their authority is accepted by the community. Soldiers fight "enemies" who, in the pure conception of war, are enemies from another political come to do violence to yours; police deal with those who "deviate" from broadly accepted social norms within a given domestic political community.

Second, the function of police is literally to "arrest" - that is, stop and apprehend - suspects. The function of soldiers is to destroy an enemy's will to resist. They are fundamentally different things. The move to apprehend, to stop, to freeze and seize is a corollary of the fact that social deviancy within a society, even when it is horrifically violent, is not seen as "war," war upon that society.

Third, the tactics and, accordingly, weapons of police differ profoundly from soldiers. War accepts the concept of collateral damage in a way that policework does not. In preventing a bank robbery in a crowded lobby, for example, a police officer is not entitled to make a proportionality calculation that the possible dead civilians might be justified by the ability to stop the robbery. Policework accepts restraints on violence by the police in ways that are utterly different for soldiers in war. Moreover, the level of weapons systems reflect this as well; it is not "policework" if your police use mortars, for example, it is war - or, under some circumstances, terror.

These differences are fundamental to the respective roles of police and soldiers - to the fact that police have a role within society whereas soldiers in their purest conception are about the protection of society's perimeter from its external enemies.

Terrorism seems to blur these roles, for the reason that today's transnational jihadist terrorists are both enemies and criminals - enemies of our domestic political community and its constitutional order, but also criminals who pursue their war by criminal means. Policework - law enforcement - criminal law - is insufficient to deal with them because they are not just criminals but also enemies. But pure war, in the classic sense of a clash of sovereigns, is not precisely what the struggle is all about because they are not just "ordinary" enemies - "ordinary" enemies who, when captured, for example, entitled to be treated as honorable POWs - but instead also criminals, unprivileged belligerents who pursue their war without regard to the most fundamental laws and customs of war and who, because they are untethered to a state and to the defense of any particular population, feel no constraint of reciprocity in their conduct.

(I say more about the difference between criminals and enemies, and terrorists as criminals and enemies, free at SSRN here, in a 2002 law review article (pdf) - it is toward the end. I also say more about it in a very short way, at SSRN here, in an op ed in the New York Times Magazine in September 2006. And I say still more about it in an essay called "Law and Terror" in Policy Review, appearing sometime in the next couple of weeks.

Update, Sunday, October 1, 2006. Let me add a fourth. In policework, the police are "good" guys and the criminal suspects "bad" guys. In war, so long as soldiers on all sides conform to the laws of war - maintain their status as lawful belligerents - they are simply soldiers, and the law does not impute to them liability for the reasons for fighting. This, if course, is the distinction between jus ad bellum, the law governing the legal recourse to force, and jus in bello, the law governing the conduct of fighting. Ordinary soldiers are legally responsible only for the latter, jus in bello, the conduct of fighting, not the reasons why their state or society undertook war. That means that it is permissible for soldiers to treat each other as targets and shoot at each other.

With police and criminals, matters are entirely different. Police are never a legal target for criminals; shooting at police is another crime atop whatever crime started things. The assumption is that within a settled domestic society, violence is not an option and that police hold the legitimate monopoly on violence - with some exceptions such as self-defense or defense of others when there are no police around - and so police are never legitimate targets.

Why does this last, fourth point matter? It matters - more exactly, it produces many conceptual and practical problems - when it is sought to be adapted (as metaphor) to uses of force by, for example, the United Nations. The UN seeks, entirely unrealistically and indeed morally wrongly, to think of itself and its uses of force in the world as "policework." Since its overall aim, and self-conception, is to think of itself as the world's government, and the world as something gradually evolving to a unitary global society, then the UN's use of force is not "war" - and, anyway, as we all know, war is bad, the UN is good, and so of course the UN does not engage in war - but instead just what police do in a settled domestic society. Granted, it doesn't quite work out like that, and we notice than in these so-called "police actions," the forces used are in fact soldiers, the weapons used are weapons of war, not police, and the concept of collateral damage entirely accepted. Nonetheless, the conception - quite mistaken, and dangerously mistaken, in my view - is that these war-like exercises are a form of policework, albeit adapted to a global(izing) society.

And the corollary is that these police (who are actually soldiers) cannot be fought against - even though they look like soldiers, fight like soldiers, and even though you, whoever "you" are, think that they are the "enemy" on the other side, not policemen, to shoot at them is a crime, just as it would be to shoot at a police officer in a bank robbery. This clash of paradigms, war and policework, results in a practical dilemma. Countries which contribute various kinds of peacekeeping and peace enforcement troops to the UN would often like to see a rule that says it is a war crime to shoot at them. This runs counter, however, to the laws of war, which take no sides, even as between the UN and other armed forces, as to whose cause is right and whose is wrong, so long as the fighters conduct themselves properly in their fighting. The rules of war provide that a fighter who obeys the laws of war, regardless of whether he is on the good side or the bad side, benefits from the combatants privilege (I am leaving a lot of stuff aside, such as differences between internal and international wars). If you say that shooting at UN troops is a war crime, you are saying, in effect, that the laws of war take sides as to reasons for fighting.

This dilemma is not very comfortably resolved, at this point, by drawing a difference between "neutral" peacekeeping troops, whose mandate requires that they do not take sides, and peace enforcement operations, where the UN has taken a side or a cause as its own, under the authority of the Security Council, such as the first Gulf War. In the peacekeeping case, there is movement to treat targeting neutral peacekeeping forces as a war crime, whereas where the UN explicitly takes sides, then the laws of war would apply as they normally do. One of several difficulties, of course, is that what it means to be "neutral" as armed peacekeeping troops is not so very clear ...

Let me also add, responding to something said in the comments, that the deployment of the military in the War on Drugs has seemed to me a very bad long term idea, for all the above reasons. Likewise the Clinton-period view (which might, of course, make a comeback post Bush) that counterterror requires military commandos to get the bad guys - and the FBI agent on the scene to read them their rights; the combination of these two fundamentally different paradigms is a grave conceptual error about the nature of the terrorism we confront. And the long term use of the military to patrol the borders; unless we intend to shoot all the Mexicans, Central Americans and other civilians coming across the Rio Grande, the military is the wrong long term option (I understand that due to the neglect of this issue over a long time, in the short term it may be necessary).

Is spanking children a violation of international human rights law? Susan Bitensky's new book says it is

As a parent who did spank his child and thought it did her a world of good, I will be interested in Susan H. Bitensky's new book, Corporate Punishment of Children: A Human Rights Violation (Transnational Publishers 2006), arguing that corporal punishment of children is a violation of international human rights law.

It will not surprise regular readers of this blog, if there are any, to know that I view this kind of conclusion - I will defer as to the argument until having seen the book - as the kind of thing that alas gives the concept of international human rights a bad name, at least in such benighted places as the United States. It is the sort of thing that gives skeptics about human rights law fodder for years to come. (And, mirabile dictu, today, Saturday, September 30, 2006, the New York Times has a front page story on corporal punishment persisting in the nation's schools, along with a picture of junior high school principal Anthony Price, a burly African American man, holding a sizable looking paddle in his hand. Story by Rick Lyman - and forever locked behind the Wall at the NYT.)

(I would be interested to know if Human Rights Watch's children's rights division agrees with Professor Bitensky. I would also be interested in Michael Ignatieff's reaction, as he once passingly discussed the issue in the the New York Review of Books or someplace as the sort of thing that would be obviously beyond the reach of human rights law, while at the same time, Ignatieff-style, acknowledging all the many ways in which international human rights law should regulate parents in their intimate dealings with their children.)

Truth be told, I thought arguments around these issues in human rights were dead and buried years ago, when the human rights movement, faced with Rwanda, Kosovo, Darfur, and then all the issues arising from torture and mistreatment in the war on terror, etc., decided it was perhaps time to get back to basics and quit arguing about these kinds of endlessly expansionary diversions of human rights law based around the ancient "the personal is the political" axiom. But I guess I was wrong.

Additionally, I critically discuss a concept that, from the abstract, features in the book - the legal as the therapeutic - in an older paper in the Columbia Law Review that I recently posted to SSRN, here, The Therapeutic as Rights-Talk.

Here is the abstract from SSRN:

The core of this book is a detailed analysis of the status of corporal punishment of children, including so-called reasonable spankings by parents, under international human rights law. The analysis leads compellingly to the conclusion that such punishment is indeed a human rights violation, consonant with modern norms about right and decent treatment of juveniles. The book further provides a comparative analysis between the domestic laws of the fifteen nations that absolutely ban all corporal punishment of children (Sweden, Finland, Norway, Austria, Cyprus, Denmark, Germany, Iceland, Bulgaria, Croatia, Latvia, Hungary, Romania, Ukraine, and Israel) and exemplars of domestic laws in the many countries that still permit some physical chastisement of children (United States and Canada).

Because a good number of readers may be surprised to learn that this disciplinary practice has become a human rights violation, the book also presents an in-depth exegesis of the psychological evidence and historical and philosophical reasons warranting prohibition of all corporal punishment of children as an imperative policy choice. The work probes as well why, once that choice is made, it is essential to use legal bans on the punishment because they have uniquely pedagogical and therapeutic roles and give permanence to humanity's hard won understanding about protecting the young from violence and legalized violence in particular.

Are academic bloggers prepared to be quoted in the MSM?

(Welcome Balkineers - my thanks to Sandy for posting his very interesting response over at Balkinization, here. I have been trying to post the following extended comment to his post, but for some reason Blogger won't let me do it. If someone wanted to post the following comment to Sandy's post, from Kenneth Anderson, I would be very grateful. This won't mean very much, of course, if you haven't had a chance to read the original post below. My comment to Sandy is the part in red. Also, please see my response to Scott Horton's comment to Sandy's post, below as well:)

Sandy and I have a mutual admiration society, please understand - I regard him as one of the finest and morally most acute intellectuals writing in the US today; his book on torture and his new book on the constitution are simply required reading for anyone seeking to understand our political system today. Why he thinks so well of me - heck, why look a gift horse in the mouth?

So I want to be clear. I have no question whatever about the use of 'banana republic'. Re fuhrer prinzip - well, I don't think it is used inappropriately in a blog post; one of the good things about blogs is that they allow us to speak more strongly, and more emotionally, than we necessarily do in other contexts, and I dislike the idea of squelching that.

What I was concerned to point out is that, outside of the context of a blog - a blog post quoted in the Washington Post - a term like furher prinzip (which was not actually quoted in the article) to describe the US Senate sounds, well, really different. It is a different genre and it sounds very different from how it sounds in a blog post. (But I don't think that's true at all of 'banana republic'.)

The problem I was attempting to describe over at my blog post, using as an example Friday's quotation of Sandy's 'banana republic' blog post in a news article otherwise quoting actual interviews with other famous intellectuals and law professors, is what happens when language that seems okay in one genre, a blog, migrates over to another, such as a regular news story. I queried whether Sandy would feel comfortable had the reporter quoted the "fuhrer prinzip" part of the post instead - I doubted it, and as Sandy says, he shares the same feeling. So it left me wondering what happens in a world in which blog posts migrate over into regular journalism, and whether a journalist ought to check - as apparently the WP reporter did with Sandy - to see if the wording is okay.

I did add a comment, as an aside, and as a conservative reader of Balkinization generally, that it has grown more shrill of late, quite understandably, considering how momentous these issues are, if one sees one's positions losing and essentially given up by one's friends. I hope it was helpful simply to let the contributors know anecdotally that I know of administration officials who used to read Balkinization regularly, not just for its technical analysis but to understand its normative arguments, who find it simply too shrill to follow. I don't mean to suggest that the emotion that I think merits expression should be squelched - but that it does cost readers among some of the people who might, at least on some matters, be open to persuasion. I, of course, will faithfully read Balkinization every day; I'm not sure everyone else will, and I'm not sure that this form of loss will be evident from the feedback given by reader comments.

I am, I should add, coming more and more to share Sunstein's concerns about the echo chamber effect of the blogosphere and the internet generally. An editor friend from abroad came over to our house and saw the NYT, WaPo, WSJ, Wash Times, the Economist, New Republic, Weekly Standard, National Review, and the Nation - apart from suddenly understanding why I constantly miss his deadlines, and the expense, he was genuinely surprised that I would read across, so to speak, confessional lines. Despite what it appears, I'm not patting myself on the back for broad reading or spending lots of money on subscriptions; I don't think there was anything in the least unusual about that for an academic or intellectual even just a few years ago. But I do think it is becoming much more uncommon now, and that is not a good thing.

Sandy, please don't censor your impulse to give some passion to your expression in all this. If we did not have passions about this, there would be something wrong with us. But I don't know exactly what one does about passions taken from one genre and converted, not precisely homologously, into another. The expressions do not necessarily translate, and I don't know what one does about that.

(A ps to the above, Monday, October 2, 2006. It is very frustrating not to be able to post a comment to Balkinization - bad, Beta Blogger, bad, bad! If someone wanted to be kind enough to post the comment below in red to Sandy's post at Balkinization, as a comment from Kenneth Anderson, I'd be very grateful:

I read with particular interest Scott Horton's comment in which he defended Sandy's passing reference to the US Senate as fuhrerprinzip on the grounds that Balkinization readers, being erudite, learned, well read, etc., would not merely associate the term with the Nazis, but would see it as an appropriate term because it reaches back much further and beyond the Nazi regime broadly to signify a certain kind of authoritarianism which is perfectly appropriate to describe the Bush administration. Well. Supposing that is true - what I was noting in my post was not what the erudite and learned readers of Balkinization might think, but instead what happens if that bit were quoted in a mainstream newspaper story, in the NYT or WaPo. Does Scott still think the term's popular connotations irrelevant to that setting - and, recall, the point of the post was to ask, using the quotation of Sandy's post as an example, whether academic bloggers are prepared to have their words migrate from one genre to another.

In any case, while I don't doubt for a moment - I am not being ironic - that Balkinization's readers are among the most highly educated, learned, and intellectually sophisticated in the blogosphere or anywhere else, suppose we take a poll of Balkinization's readers and ask what they think of when they think of fuhrerprinzip - a long intellectual history of Middle European political authoritarianism, or ... Hitler? For that matter, Sandy is a thoroughly honest person - Sandy, were you thinking of all the various things Scott was talking about, or were you, too, thinking about Nazis? When it comes to international humanitarian law, "a field," Scott reports, "with which Ken supposedly has some familiarity," I think Fuhrerprinzip and I think Nazis. But then, given that my knowledge of the field is "supposed," perhaps that doesn't count. Maybe Scott doesn't merely think Nazis, although his discussion of it turns out to be not so much Weimar, but mostly Nuremberg and, well, Nazis. Maybe you, gentle Balkineers, think about Middle European political theories. But I bet you think Nazis. And I bet Sandy does, too - which was surely why he used it in his post.

And, again to be perfectly clear, to return to the point in my original post - I do not object to that kind of reference in a blog post. I don't mind it. It's okay by me. I might very well use it and even stronger language and references myself - I like provocation. So thanks, Scott, but in order to defend Sandy you really don't have to offer a whole intellectual history about why fuhrerprinzip is not just about Nazis and is all about alternatives to liberalism. It's okay with me even if it is a reference to Nazis. Others do object - including some in the comments to Sandy's post - but not me. I myself think it is perfectly okay for Sandy to invoke indirectly these kinds of images, and 1984, and Stalin and the Gulag, and all the rest. I may agree, I may disagree - but I don't think they are somehow beyond the pale in a blog post, a genre which accepts a certain level of passion that academic writing usually does not. It is a genre with its own internal sense of style, including a certain amount of passion, which is one reason I like it - and beyond a certain level, a reason I don't like or read the wilder parts of the blogosphere.

My question in the post - which Scott doesn't actually address - is whether Sandy, comfortable with using that kind of referrence in a blog post, would still be comfortable with seeing it quoted as a description of his view of the Bush administration in a newspaper story, surrounded with quotations from other experts who were actually interviewed and not simply blog-mined. "Banana republic" - sure. But "fuhrerprinzip"? I wouldn't be, if it were me, and my guess, and question to Sandy, was that he wouldn't be, either. And I was curious about whether the journalist contacted him directly to ask him about the quote - he did - and whether those of us who blog think there should be some kind of known, understood journalistic convention here, about quoting, about contacting for quotes, etc. I don't have a view on this - I don't often get interviewed, and anyway tend to turn them down. My question is about the migration of language from one genre, blog posts, to another, newspaper stories, and what the conventions should be for writers of blog posts and journalists mining them for material.

(Welcome Instapunditeers! and thanks, Glenn for the Instalanche. Do see the comments - they have been very thoughtful, including this very interesting response from Daniel Solove over at Concurring Opinions, here. I very much welcome comments on this question - I am a novice in the blogging world and so, for example, Dave Glazier's distinction of list serv posts is new to me. I also hope Balkineers will not take my comments below on the recent Balkinization as anything other than a cordial suggestion from a devoted reader reporting anecdotal reaction from other conservative readers.)

R. Jeffrey Smith has a reasonably objective short analysis of the detainee legislation in today's Washington Post, Friday, September 29, 2006, here. I am not going to comment on the substance of the legislation in this post, but rather on a side issue about blogging and its increasing intersection with the mainstream media - especially academic bloggers.

I was interested to see that he quoted from Sandy Levinson, writing in Balkinization, describing the bill as the "mark of a 'banana republic'." Sandy's original post is here (and also this followup, here). This quote from Sandy's blog post is mingled in with quotes that Smith presumably got in phone conversations or interviews with other people, including Harold Koh, Brad Berenson, Doug Kmiec, and Deborah Perlstein. Sandy's is the only blog post cited and is described as an internet post.

(I am, I should add, a huge fan of Sandy - as one of the most lovely people I know, as a scholar, a friend, and his books on torture and the new book on the constitution are required reading. The questiion about journalists quoting bloggers I'm trying to get at here is not really about Sandy - it just so happened that the article quoted from his blog post. It might have been Jack Balkin, or it might have been me, or anyone else.)

As with much of the language I myself use in blog posts, and that other people do, too, Sandy's language is not over the top, so to speak, yet it is stronger language, it feels to me, than that of any of the other people quoted, on either side of the issue. What interests me here is that blog postings generally tend to be much more strongly put than people - I include myself certainly - would say in an actual live or phone interview with a journalist. Presumably this is one reason why they can be an attractive source of material for journalists, besides the ease of searching them out rather than telephoning. For example, Sandy also (in the second of the 'bananan republic' posts) described the Republican controlled US Senate as operating through "the American equivalent of the fuhrer-prinzip."

Fuhrer-prinzip? This is not really such unusual language for the blogosphere, I suppose - but would Sandy have used that precise wording in an interview with a journalist intended to be quoted in the Washington Post or the New York Times? Perhaps, but I doubt it. At the same time, would Sandy anticipate having that language quoted in a MSM newspaper along with actual interviews from other people?

(Although, curiously, it is the kind of language one might actually use these days with the New York Times, since it is the kind of language that the Times is increasingly tempted to use in its own editorials. The Times editorial page is managing to perform a minor miracle in the history of literary style - to speak simultaneously ex cathedra, the voice of God Addressing Eternity, and yet in the whiny, petulant, nastified, hysterical, positive-feedback-loop cadences of the blogger-at-his/her-worst (a condition to which all bloggers, myself included, sometimes succumb, possibly even here today). But isn't it plain weird to see the most authoritative editorial voice of MSM, the Grey Lady herself, sound increasingly like a blogger - sound just like another lefty blogger, and frankly not as good at the 'rant' genre as many bloggers over at Kos on the left or Townhall on the right?)

I say this in part from having used strong language in blog posts and then being surprised - when I shouldn't be, I guess - at seeing those words quoted other places. My blog says that what I write on it is first draft, subject to mind-changing. Which is quite true - I use my blog to test out ideas and I change my mind on various topics. Geoff Corn has convinced me that he is right in saying that unlawful belligerency does not really exist in a CA3 conflict; Dapo Akande has not convinced me that he and the ICRC are right in saying that unlawful belligerency is never a crime as such but only a status under CA2, but it has certainly caused me to do more research.

But I once posted, concerning waterboarding, that I would do it to Zarqawi, if he were known to be in my hands, "in a heartbeat" in order to learn what he knew. Well. I will say flatly (just to be clear about what the difficulty with the post was, in my mind, viz., the colorful blogospheric language and not the fundamental position - I am not writing to revisit the substantive question in this post, thank you in advance, commentators) that I do not consider waterboarding to be torture per se, in all and every circumstance, and I would be willing to have Zarqawi, back when he was alive and on the loose, waterboarded if it appeared that he still had actionable intelligence that could save Iraqi lives from his terrorists - none of which, of course, could be determined "in a heartbeat." Waterboarding KSM was appropriate and right, in my view, and, in the accounts of reasonably objective journalists, such as ABC News' Brian Ross, it saved lives.

But it was that phrase "in a heartbeat" that stuck, even more than the substance of the position, because it was over the top. It attracted the warm attentions first of Marty Lederman, and then later on some writer at the Nation doing a tendentious, presume-the-conclusion piece on professors supporting torture (leaving me aside, Phil Heymann or Juliette Kayyem, "rogue scholars" supporting torture? Please.). I don't regret the substance of what I wrote on that issue. But the language was more colorful because it suggested an insouciance that was not what, on reflection, I really intended. If it were really all first draft stuff, it would be possible to say, okay, I've rethought this and this is what I mean - including that I've changed my mind, you commentators are right, and waterboarding is always torture. But the whole situation is changed when you find that your blog post is getting quoted in some magazine or newspaper somewhere. What you thought of as being first draft commentary turns into the mini-"gotcha" moment.

The political blogosphere is these days mostly an intemperate place. There are exceptions, such as the refined, respectful tone of Opinio Juris where, in a group blog with people of sharply differing political opinions, people are appropriately very careful in how they express themselves. Balkinization, where Sandy blogs, is a group blog of the like minded, and, as Cass Sunstein has noted, these blog environments tend to reinforce and spiral upwards the emotions of the group.

(Aside: Balkininzation provides some of the most useful and trenchant analyses by leading legal minds, at its best providing a fast but highly, highly informed technical read of statute such as the detainee bill and/or a genuinely profound take on a topical issue of political values, whether one agrees with the position or not, or is persuaded by the argument or not. Especially if you don't agree, it's important to read the best of what people on the other side think - and with a mind genuinely open to persuasion by a good argument. But at least at the moment, Balkinization seems to be getting more and more shrill. Sandy directed a question in a recent post to "conservative readers of this blog." It occurred to me reading it that I might soon be among the last of its faithful conservative readers; an administration official who has long read it with a genuinely open mind, appreciated its analyses and has sometimes been persuaded by its views and sometimes not, remarked to me the other day that the level of emotion and invective had started reaching the point where it made reading it just a pain in the ass - and that would be an enormous loss, as what's the point in always preaching to the converted? End aside.)

And an individual blog, like this one (where I have no idea who reads this besides undergraduates looking, so far as I can tell, for materials for term papers, possibly to plagiarize, on just war theory and Michael Walzer) tends to go over the top, to indulge the upward cycling positive feedback loop, because there is no structure of countervailing views that forces one to think about being respectful and take the other side's views into account. But as the blogosphere interacts with MSM, to become a source of material for the MSM, so that MSM feels free to quote blogged opinions, especially of famous intellectuals and scholars - such as Sandy Levinson or Jack Balkin - essentially as though their blog posts were free floating interviews, then there can be mistmatches of expectations.

This last makes me wonder whether we need some kind of developing journalistic ethic here. Normally, one feels free - as a scholar or a journalist - to quote whatever a person published in writing, without going to them in any way. But are blog posts like that? What I wrote in a recent NYT magazine piece, for example, or in the Times Literary Supplement, was carefully scrutinized by me, by editors, and it represents not my first draft thoughts, but, for whatever they are worth, my considered opinions. I can't say that is true of my blog posts - which is part of their very point - I can't even say that of this post.

Should a journalist or scholar check with a blogger before quoting a post in these circumstances to see if that is what he or she would say in a considered way, either what he or she would say in a published article or what he or she would say to a journalist in an actual interview? I don't know. I am curious as to whether Smith contacted Sandy first, before quoting him - I certainly would not think that, as our current journalistic practices go, a journalist or scholar would or should feel obligated to do so - the article identified it as a blog post, not an interview - but I wonder whether we should move toward such a convention in the future. I really don't know. But I do know that the interaction of MSM with the blogosphere, particularly the expert/academic/scholar blogosphere, in which it becomes a source of quotes, may require shifts in how bloggers view what they post.

Jonah Goldberg on the torture debate

Jonah Goldberg at NRO comments on the torture/interrogation practices/detainee debate, here. He later comments at The Corner at NRO on a form of conflation that frequently afflicts the torture debate:

The argument about "legalizing torture" misses an important point: that's not what the legalizers think they are doing. Their point is that they do not want to torture and therefore they want a definition of what counts as torture and what does not, so they know where the bright line is.

It steals a base to say that the Bush Administration wants to legalize torture because you first have to demonstrate that what they want to do is torture. I think it is a perfectly defensible and honorable position to claim that waterboarding, sleep deprivation etc. amount to torture. I don't think I agree with that view. But I certainly believe it is made in good faith. But the good faith ends when the same people then issue blanket and sweeping assertions that the people who want to legalize those actions are simply pro-torture. If the legalizers were simply pro-torture they would favor hot pokers, iron maidens, finger-nail-yanking and the rest. And the people supporting the use of waterboarding (in a tiny number of cases) aren't doing that. Not only do they think they're not in favor of torture but they objectively oppose things they consider to be torture. So even on the "anti-torture" crowds' own terms, the worst that could legitimately be said is that Bush wants to legalize "some torture" while banning most kinds of torture.

I understand this all sounds like hair-splitting, but part of the point of my column was that we don't have a good terminology to discuss this stuff clearly. So one is forced to take a razor to the clumsy language we do have.

Goldberg is right in saying that the detainee debate has kicked the can down the road in refusing to say what is and is not permitted.

As I have been remarking for some time on this blog and elsewhere, when you have general agreement on a principle - no torture -but broad and deep disagreement as to what it means in particular cases, then the only decent way to proceed in a democracy is casuistically, case by case - water boarding, sleep deprivation, etc. - and through the democratic process to reach a conclusion. Where the disagreement over substance is profound, then the fall back position in a democracy is to resolve it through democratic processes. It is not resolved, however, if it does not answer particular cases. So let everyone raise their hands and vote - let the legislature, our elected representatives, vote. Let everyone know where our Congress stands, person by person, on these morally fraught questions, and let it be known precisely and unmistakably where we draw the lines between legal and illegal.

Make no mistake - I am no fan of the Democratic alternatives here (if there is one besides believing that the nation's existential problem is not terrorism, but Bush), and think that the compromise between the White House and McCain was on balance - with some ringing exceptions - better than expected. Still, speaking as a small-d democrat interested in seeing our legislature do some work in all this - well, our democratic process largely flopped precisely when it got to brass tacks that really mattered - what specific practices applied to whom by whom constitute torture? - preferring to paper over the ambiguities and difficult questions. We will pay for the failure to address the problem squarely, down the road, at compound social interest.

(I said this in short form in an opinion piece in the New York Times Magazine over Labor Day weekend that not too many people read, alas, but is available here, and will be saying so in longer form in the upcoming issue of Policy Review.)

***
I'm moving a comment into the main post - it is from Alan G. Kaufman, a Navy lawyer, LOAC expert among other things, and I'm especially pleased to say former Harvard Law School student of mine:

Alan G. Kaufman said...

I am not so sure that the debate is (or ought to be, at this point) over exactly what kinds of coercive interrogation techniques or acts constitute "torture," and which of those coercive acts or techniques we should or should not accept, as it is over what coercive interrogation acts or techniques, not constituting torture, nevertheless do amount to cruel, inhuman and degrading treatment, or outrages upon dignity, and should or should not therefore be prohibited.

Isn't the real objective here, from the administration point of view, to create a lacunae -- or leverage the lacunae I describe above -- to permit executive branch interpretation of law of war to permit coercive interrogation techniques that some would view as illegal because they are cruel, inhuman, and/or degrading?

Alan is right - I was focused on torture because it is what Goldberg was writing about. But certainly it applies with equal force to all the other controversial interrogation techniques. Whether you are talking about torture, degrading treatment, any of these categories, I won't be happy unless they are connected precisely and without euphemism to concrete practices. And I agree that the administration is seeking to exploit lacunae in the legislation to permit, as Alan says, executive branch discretion in this. Indeed, I would say it goes one step further - it wants to have its cake and eat it, too, in having discretion to interpret, but at the same time announce that there is sufficient specificity to protect US officials.

I don't actually think it can have it both ways here - if there is to be sufficient specificity about what coercive interrogation is legal, it will be sufficiently specific only if it effectively removes the executive's discretion. Otherwise, well, I at least would have a lot of concerns as a US official about what might happen down the road. My view is that people are seriously divided as to these things per torture, but also per coercive interrogations - I would guess, perhaps, that Alan and I would differ on some of these things - and in that case, legislation is not very useful if it does not get down to specific cases. The current legislation does not do that, and it will, in my current estimation, not pass muster with the Supreme Court, which will find it too clever by half. Nor does it really do what legislation on a deep moral disagreement within the populace has to do - require that legislators make clear where they stand. This still does not do that. I want to know where every member of Congress and the Senate stands on each of these things. I don't want lacunae. I want legislators to vote and everyone to know how they voted. I also think that is what the Court wants - a plain unvarnished statement from the legislature that engages in no papering over of differences.

I realize that I have not addressed the substance, but here I am more concerned about the process by which a democracy resolves issues on whose substance its members are deeply divided.