Middle way in counterterrorism?

Another point with reference to the Opinio Juris discussion with John Bellinger, legal advisor to the State Department. Several of the comments to the posts, and something John himself mentioned in the summing up, took up remarks I made on the future of counterterrorism. Several of the commentators suggested that it represented a sort of middle way - an alternative to the war paradigm. I want to be very clear about this particular issue, on the off chance anyone follows this sort of thing:

1. I don't actually think of this as a "middle way" about terrorism, at least as an alternative to war. What I describe instead is a range of tools of counterterrorism, of which war is emphatically one, and one which will always have to be in the arsenal. What I am suggesting is not the kinder, gentler approach to counterterrorism, nor one that would make the human rights folks especially happy, either.

2. A range of tools for counterterrorism includes war (including war against regimes that harbor or provide safe haven for terrorists or provide or threaten to provide weapons of mass destruction to terrorists), armed action short of armed conflict in a legal sense (including the possibility of civilian collateral damage), destruction of terrorist materials such as training bases, assassination, abduction, detention, interrogation short of torture, aggressive surveillance, seizure of terrorist financing and assets, cooperation with foreign intelligence services - all these things long before one gets to actual law enforcement.

3. I would not want anyone to mistake these tools that are neither war nor law enforcement as a somehow kinder, gentler approach to counterterrorism. On contrary, these tools frequently raise unanswered questions as to the legal regime that applies to them, if it is not the law of armed conflict, precisely because some of them are violent, including the possibility of violence to third parties. Some of those questions can perhaps be answered by drawing from the law of war - collateral damage rules, for example, drawn from the law of armed conflict. But others are quite novel. The answers must be given, at least as far as the United States is concerned, by its political branches through legislation.

4. The view gaining currency in the human rights community that general human rights law applies even in the midst of the laws of war is, rather than the long understanding that the laws of war are lex specialis is, in my estimation, merely a strategic invention of human rights lawyers to give answers not otherwise available under the laws of war.

5. In any event, the view expressed by John Bellinger in his last post, that the ICCPR does not apply to bind the United States outside its territory is correct as a matter of law, and does not inhibit the United States as a legal matter in making domestic law determinations of how to approach these issues of standards for actions that are neither armed conflict nor criminal law, although no doubt there are useful policy comparisons.

I have put this rather brusquely, because I would not want to leave the impression that I think that expanding counterterrorism beyond the legal paradigm of a global war on terror makes it somehow nicer. It should not be confused, at least as I would urge it, as a kind of Clinton-Blairite "Third Way" for conducting counterterrorism that somehow does away with violence and nasty stuff. That is certainly not how I intend it. It is, rather, a recognition as a strategic matter that counterterrorism has need of actual armed conflict - war - not typically to fight actual terrorists - sometimes that is true, of course, but mostly the terrorists themselves fade into the background - but instead directed against regimes that provide haven and WMD materiel. That's what the actual war part is mostly about. And pure law enforcement is, well, September 10. Much, if not most, of counterterrorism will fall into the broad range of activities I have given examples of above - for which we require systematization from a strategic standpoint and a legal framework in which to make them coherent tools of long term policy.

Sean Murphy's new paper on the Geneva Conventions and the war on terror

Particularly in light of the discussions over Opinio Juris in the last couple of weeks with John Bellinger, legal advisor to the State Department, guest blogging, with a number of guest respondents, including me - Sean's new paper on the application of the Geneva Conventions to the war on terror is especially illuminating. I found particularly interesting his discussion of the supposedly "seamless" Four Geneva Conventions, and the claim made frequently today, and very frequently in the comments to the Opinio Juris discussion, that if you flunk the Third Convention, you are protected by the Fourth. Sean gives the most direct textual refutation of that claim, in the texts of the Third and Fourth Conventions, Protocol I, and the Pictet and Sandoz commentaries. He also gives an illuminating discussion of the application of the Third Convention, Article 5 meaning of "doubt" in determining whether someone should be given a status hearing for POW status - in particular the question of whether a government is in a position to make that decision on its own, and whether that determination can be made on a group basis or must be made individual by individual. The paper will appear in the forthcoming George Washington University Law Review, Vol. 75 (2007), but the draft can be downloaded from SSRN, here. This is the abstract from SSRN:


Evolving Geneva Convention Paradigms in the 'War on Terrorism': Applying the Core Rules to the Release of Persons Deemed 'Unprivileged Combatants'

SEAN D. MURPHY
George Washington University - Law School

GWU Law School Public Law Research Paper No. 239
GWU Legal Studies Research Paper No. 239
George Washington Law Review, Vol. 75, 2007

Abstract: The purpose of this essay, written in late 2006, is to take stock of the current application of the Geneva Conventions in the global “war on terrorism,” including interpretations recently taken by the U.S. Supreme Court in the Hamdan case. The Geneva Conventions and the laws of war more generally comprise a sophisticated regulatory regime whose rules can and should be closely analyzed by lawyers. Yet, like all law, the inevitable imprecision in the rules presents opportunities for governments to exploit gray areas so as to augment governmental authority, and to avoid sensible interpretations that will protect individuals from overreaching governmental power. Such exploitation invariably severs the rules from their ethical foundation and loses sight of their underlying object and purpose.

The events of 9/11 and their aftermath revealed complicated scenarios that do not fit easily into the traditional paradigms of the laws of war, including the 1949 Geneva Conventions. Highly knowledgeable persons in the field have reached diametrically opposite conclusions about certain fundamental issues, such as whether the conflict with Al Qaeda constitutes an “armed conflict” within the meaning of the laws of war, whether it matters if the Taliban wore regular uniforms or operated within a regular command structure, and whether a person who fails to qualify as a prisoner of war under one convention must invariably then qualify as a protected civilian under another. Many of these controversies arise because the two dominant paradigms that operate within the Geneva Conventions - one concerning “international” armed conflict between two or more states, and the other concerning “non-international” (typically understood as internal) armed conflict between a state and non-state actors - do not fit the phenomenon of global terrorism, where the dominant paradigm concerns transnational armed conflict between state and non-state actors.

Yet from their earliest formation, the laws of war have recognized the problem of dealing with irregular forces and the problem of adapting the law to circumstances that change over time. For that reason, built into the 1949 Geneva Conventions and their additional protocols are the means for taking account of areas that are not addressed explicitly or in detail. Rather than trying to exploit such gray areas in the law, lawyers should seek to inject the dictates of humanity into them, in a manner that best reconciles the competing interests during armed conflict of both governments and persons who are at risk. As an example of how one might allow the Geneva Conventions to evolve in a sensible fashion, this essay discusses the rules that should be applied with respect to the termination of the captivity of unprivileged combatants, such as those held at Guantánamo Bay. While the environment for handling such detainees remains fluid, and the norms expressed by the laws of war on these points are far from certain, this essay suggests answers that are legally plausible and that appear consistent with sound policy choices. Similar efforts to fill in the gray areas for other aspects of the law of war as it relates to global terrorism should also be pursued.

My own interest these days is less the legal characterization of where things stand now than an assessment of where we should go from here; perhaps I will be doing a short book for the Hoover Institution on this question. What should counterterrorism look like in a new administration, whether Democrat or Republican? I have framed this as "counterterrorism after the war on terror." That is not because I am opposed to the war on terror or to thinking about it as a war - I do not mean this as some kind of 'September 10er', hoping that if you wish hard enough, bad things go away and you can get back to whatever it was you were doing in June 1914 or the twilight years of the 1930s. On the contrary, I have supported the Bush administration's effort to think of the struggle against terrorism as a war, to think strategically about it as a war, and to apply grand strategy rather than bandaids, to the struggle. Moreover, the war on terror is not, as has so often been wrongly asserted to the point of cliche, merely a metaphorical war - it is no more metaphorical than the Cold War was. Those who dismiss it as metaphor merely have trouble, it seems to me, understanding the difference between metaphor and strategy: in one sense, after all, all strategy is metaphor, but that does not make all strategy 'mere'. On the contrary, it is precisely strategy's metaphorical quality that makes it useful to seeing one's struggle in an analytic way.

That said, calling it a 'global war against terror' is reaching the end of its useful life, and the reason has to do very much with the fact that it has been imbued with the legal implications of war. The utility of understanding the war on terror strategically as a war, in the same broad, generations-long sense of the Cold War, seems to me as defensible as ever. The Cold War was usefully analyzed, for strategic purposes, as a war from many different directions of mobilization, some of which led to actual wars and conflicts, some of which led to other types of ideological, cultural, social, and economic efforts. But the Cold War was never legally conceived as one decades long "war" to which the laws of war applied - there were particular conflicts to which they did, such as Korea or Vietnam, but the legal paradigm was not invoked, for example, with regards to espionage, and lots of other things.

Calling this 'war' in the legal sense, therefore, in order to invoke the laws of war on a global basis, seems to me to put the cart before the horse. As a practical legal matter, there are two basic armed conflicts that rise to the level of the legal definition of armed conflict - Afghanistan and Iraq. Others might arise, obviously. But much of the other stuff does not meet that legal definition. And strategically, it makes little sense to suggest that those other activies - the Predator strike in Yemen, activities of material support for terrorism through financing and the like that might qualify under the Military Commissions Act of 2006, etc. - are actually war, either. There are many actions that should be undertaken, involving sometimes the use of force, that are not actually armed conflict. There are many other actions that do not involve the use of force, for that matter, which should also be undertaken as circumstances warrant - surveillance, spying, interference with terrorist financing mechanisms, etc. - that, of course, are not armed conflict, either.

Insisting that all this is part of a legal 'global war on terror', with all the legal implications that this implies, is not tenable under the laws of war and not particularly helpful from a strategic standpoint, either. The United States needs new law to govern these areas - new domestic law to govern areas of counterterrorism that are neither law enforcement nor armed conflict. I understand the reasons for reaching to the law of war - in order to invoke the commander in chief's full authority and discretion, to set aside what might otherwise be human rights claims in favor of the lex specialis of the law of war, etc. (One area that Sean might have considered in his article, judging by many of the comments in the Opinio Juris discussion, is the quite remarkable claim by the human rights community that the law of war is not lex specialis with respect to general human rights law, and that human rights law continues to apply even in circumstances of legal armed conflict.) Five years after 9-11, that way of going about things has run its course. My view is that the United States should legislate in these areas, and create new paradigms through new domestic law - the creation of a special counterterrorism court, for example, and the elaboration of standards for the use of force that is neither law enforcement nor armed conflict, as well as for detention and interrogation. I emphasize legislation - it has to be more than simply presidential discretion, but should create structures that will outlast any mere presidency, Democrat or Republican, as we did in the Cold War. The law of war should be taken out of it, and the military as well - the military should get out of the Guantanamo business, for example - except for what is, without elasticizing legal definitions, armed conflict.

I have written some about this in an article mostly urging that Congress needs to get involved in legislating counterterrorism, in Policy Review, here. I am also working on a couple of short articles setting out the main thesis of separating out the strategic use of war as a framing analysis from the legal fact of war in particular circumstances. I also talk about this more over at a post at Opinio Juris, here.

Prettier and handsomer

Okay, let’s also be honest and admit that in Manhattan the girls are prettier and the boys handsomer. Washington DC has many good points, but this must simply be admitted as a fact. Manhattan is winsome and DC homely.

Manhattan is the eastern Sierra Nevada of the east coast

I suppose if you put up a title like this you really should follow up with a Walt Whitman poem. But last night at around 9:00 pm, after getting out of twelve hours of difficult meetings in New York in which I had decided in the morning upon the medicinal use of coffee, I found I was completely exhausted but completely wired. This is what happens to non-coffee drinkers. So I indulged in something I haven’t had time to do in a long time in my frequent but irregular trips to the city, which was walk Broadway from 14th Street to the street our old apartment had been on, 96th Street and Riverside, and back to my hotel at 25th and 7th. There is nothing like Manhattan, even on a cold night, and nothing like Manhattan at the hour when the theatres in midtown get out. Times Square lit magnificently, all so very alive, vibrating. People don’t understand – Manhattan does go to sleep; up on the Upper West Side it was all very domestic and asleep. By the time I got back down to Chelsea, it too was asleep.

Walking in Manhattan is the finest combination of the micro - the level of street life and interesting things to see at the level of the store front, the restaurant window, the faces of people walking along – and the macro – the grand landscape of the buildings and the skyscrapers and, in the darkness, the drama of the lighting and the advertisements. Paris is more civilized, London as alive but not as dramatic at the macro-level of landscape as Manhattan. What gives Manhattan its special character is found at the macro-level, the mountain landscape created by its buildings – plunge down Broadway from Columbus Circle down toward Times Square. The skyscrapers are densely textured and enormously deep. The older buildings and the newer buildings have back-layering of their stories – they look more than anything else on the East Coast or, really, east of the Rockies, like the glaciated crags of the Sierra Nevada. Despite a spurt of pure modernism, Manhattan skyscrapers are not merely monolithic rectangular prisms stood on end. They taper back as they gain in height, often dramatically so, and the effect of narrowing the top floors relative to a building's footprint on the ground floor is to make the buildings feel as though they were leaping upwards, creating a sense of grandeur that is very much akin to the mountains of the West.

I can tell no one reading this actually believes me. I can actually sense the skepticism, dear blog reader. Certainly that was the reaction this afternoon from my dear friends David Rieff and Scott Malcomson, sitting in a coffee shop in Tribeca – well, I say, you guys are jaded New Yorkers. Try it someday, coming down Broadway from 57th Street to south of Times Square, especially at night. Then get on a plane and fly into Reno and drive south on 395, or fly into Ontario and drive north. Come along the eastern Sierra, into the Owens Valley – the deepest valley in the entire Western hemisphere, so the geology books tell me, measured by vertical drop from the tops of the Sierra Crest on one side and the entirely different but nearly as high folded sedimentary White Inyo Mountains on the other. God’s own country, and Darwin’s, too: the rest, an afterthought. Go take a look and see if the jagged Sierra peaks are not the skyscrapers of Manhattan. The same stereoscopic depth of field, the same dense texturing. How very American to take the archtypal Western natural glory and architecturally recreate it in the most urbanized place in the United States - and a place notably lacking in real mountains. And that is a Whitmanesque thought, yes?

(I wrote about this once, in a review not long after 9-11 of a wonderful book on the evocation of the skyline of Manhattan in the movies, James Sanders' Celluloid Skyline. TLS review here. The book took as its source photographic materials a very strange and wonderful archive of Manhattan photos used in Hollywood to create sets of Manhattan for the movies over decades. How peculiar that the greatest archive of architectural photographs of Manhattan is actually in California and was created for the movies, to assist in painting backdrops and building sets. The book has a long and fascinating discussion of why the first King Kong movie, in which Kong climbs the Empire State Building, with its set back upper stories, feels so much more like a real mountain than the second, in which Kong climbs the featureless prism of the World Trade Center.)

From the draft introduction, A Politics, Not a Society

Below is a bit from the introduction - still in draft and will get rewritten drastically - from my book ms., A Politics, Not a Society: The United Nations, Global Civil Society, and the Legitimacy of the International System After Global Governance. It won't look this way in the final version in the book.

***
The argument is offered in four parts following the Introduction.

Part One addresses the institutional United Nations, as a political institution. The conceptual backdrop for this is to show the limits of the UN system, the official public international system, as a purely political system, lacking the legitimacy that only a society can give. Concretely, in a series of short sections, it considers the contradictions of the UN, and considers them through an examination of the recent attempt at comprehensive and systematic UN reform. That effort was largely a failure; the reasons why demonstrate the limits of international politics. But I argue that the experience also illuminates the cul-de-sac in which the politics of the UN finds itself trapped. This is familiar territory that examines contemporary policy issues of UN reform one by one. I suggest, however, that rather than lament the inability of the international system to move forward, it might be better to accept that this cul-de-sac collectively represents what international actors actually desire from an international political system. It might be thought to represent not the failure of collective will, but instead its consummation. If not precisely the culmination of our desires, then at least the balance of them, in relatively stable and change-resistant equilibrium. We should consider the possibility, in other words, that the current impasse of the international political system is compounded because it is not so much an exercise in frustration as satisfaction – satisfaction with political stalemate insincerely protested and insincerely denied. A system in which the participants are, on the whole, satisfied with it rather than frustrated by the inability to change it – even if no one admits their satisfaction – is far harder to change, and this might explain some of the persistent inability to change.

Part Two turns to the question of legitimacy, and the special interrelationship of the institutional UN and global civil society. It assumes that there is a driver – economic globalization, although I will not seek to demonstrate this – that in some fashion provides a causal reason why this international system, now in incommodious equilibrium, might not remain so permanently. More prosaically, I assume that the demands placed upon the international system will continue to grow. Those demands require forms of action that cannot be accomplished without a legitimacy that the international system currently lacks. Part Two analyzes the form of legitimacy that would be required, a society and not merely a politics. It considers the democratic deficit of the international order and considers ways either to address the deficit, go around it, or to conclude that it cannot be remedied. Global civil society is introduced as a possible solution to the general legitimacy problem and democratic legitimacy particularly; perhaps it can serve to provide a society in which political institutions can be embedded so as to gain legitimacy. Perhaps global civil society, in the absence of a genuinely global democracy, can effectively stand in for democratic participation, as intermediary and representative of the “peoples of the world” to expanding UN institutions of global governance. Moreover, perhaps human rights, considered as an ideology, can substitute for values of democracy and participation that are hard if not impossible to achieve in a global system. However, Part Two finally turns to consider these various claims skeptically, finally concluding that global civil society cannot provide the UN with the legitimacy it seeks. Global civil society cannot turn the international political system into an international society, let alone a democratic one.

Part Three continues the search for legitimacy, which is to say, continues the attempt to find a way in which the international system can be a society, so to create the legitimacy necessary to liberal international global governance. It begins by laying out a series of ideal positions with respect to the debate between nation-state sovereignty and liberal internationalism. The question is whether any of the leading liberal internationalist positions can succeed where global civil society, considered as a mechanism for generating social legitimacy, has failed. The positions principally considered are global constitutionalism, global government networks, global administrative law, cosmopolitanism, and global bourgeois elites. They are the leading positions offered by intellectuals seeking to theorize global governance today. The conclusion concerning these positions (understood as proposed mechanisms by which to address the legitimacy deficit of the international system for purposes of expanding liberal international global governance), however, is that none of them generates the requisite legitimacy because all fail to establish a meaningful social order in which political institutions of governance can be embedded. The Part ends with a decidedly peculiar twist – by asking what might be the outcome if, contrary to the argument of Parts Two and Three, global bourgeois elites were able to create the legitimacy necessary to global governance. It looks to a historical parallel with the rise of bourgeois civil society in the eighteenth century in England and Scotland to suggest that it might mean the withdrawal of the global elites from the leadership of global peoples to collapse into mere global managerialism.

Part Four returns, finally and briefly, as a conclusion, back to the United Nations and the international political system. The conclusion of the two social Parts is that there is little or no prospect of an international society that could provide legitimacy to expanding institutions of global governance. In that case, what are the political consequences for the UN system? After global governance, what? I suggest that a return to robust multilateralism, one which conspicuously gives up the dream of global governance, nonetheless gives the UN a way forward by affirming its purely political status and the limits that they imply. I urge a system that puts democratic sovereignty at the center of the system, one which focuses on the hedgerows of competence and not on the supposedly growing tree of governance. It means not forgiving the mistakes and excesses, the corruption and incompetence, of the UN because, after all, it is supposedly indispensable and has unique legitimacy. It has neither; the General Assembly and the organs it controls will always be with us, and always a place of corruption, rent seeking, and failed cooperation games – the task should be simply confine it to what it is. Those parts of the UN that work should be subsidized – in effect a leveraged buyout of by donor countries of the specialized UN agencies, such as the WHO, which function well, and move to other mechanisms, such as the World Bank or alternative non-UN human rights organs or a caucus of democracies, to substitute for those that do not. Multilateralism need not automatically betoken a gradualist approach leading toward liberal internationalism; it can betoken instead a commitment to governance by democratic sovereigns that remain sovereign and democratic while closing the regulatory gaps between them, and addressing the profound range of global problems that address us all. By giving up any pretension that it will ever become anything so glorious as “global governance,” to focus on discrete and concrete tasks done competently, the international system might yet find a way out of today’s political impasse.

Belated happy new year

I'm afraid I've been away from blogging and pretty much everything else until this past weekend, when I finally finished up the book ms. I was working on. It will require a lot of rewriting, but I was relieved to finally get a first draft complete and sent off to the editors. That meant working straight through the holidays, I'm afraid. I never did manage to send out holiday cards or anything, although I might try to gird myself up to send out New Year's cards even late, since they are all sitting here. On the other hand, the number of papers and things that piled up while I was writing is terrifying.

The tentative title of the book, to come out from Rowman & Littlefield as part of the Hoover Studies series at year end, is A Politics, Not a Society: The United Nations, Global Civil Society, and the Legitimacy of the International System After Global Governance. My Spies report that it can't possibly fit on a book cover. I'm awfully bad at titles, anyway.

Meanwhile, I'm pleased and honored to say that Opinio Juris blog has invited me to one of its guest respondents this week while it has John Bellinger, the legal advisor to the State Department, as its guest blogger. This is a very cool concept - John has written several illuminating posts, and the responses have been very thoughtful. Eric Posner has written a couple of posts, as have others besides the regular Opinio Juris cast of stars. I'm very pleased to able to join in. Check it out at Opinio Juris.

I am still finishing the grading, I'm embarrassed to say. And classes, of course, have begun - although, I normally do my three big classes in the fall and teach a special seminar in the spring, this time around on theory of the just war. In that class we are reading at the moment a selection from Robert O'Connell's Ride of the Second Horseman, which is his account of the rise of war in human pre-history and history. It is speculative, but very thought provoking. I reviewed it for the TLS when it first came out in the mid-1990s, at SSRN, here. The class relates to the papers I have hanging over my head ... a short piece, mostly done already, on the law of proportionality jus in bello; parts of it have been posted in bits and pieces on this blog back during the Hizbollah war. And I'm also finishing a short essay offering three different readings in moral philosophy of Sherman's famous "war is hell."

Which I've also written about a bit on this blog. So when I think about the relationship between this blog and scholarship, I tend to think of it as what my philosophy teacher, Philippa Foot, used to encourage - a commonplace book for jotting down ideas, some of them just bits and pieces, others half baked, for working out at greater length. Why one would put it in a public blog is a good question. Of course, I'm just as likely to post something related to the family Christmas tree or about electric cello.

One of my new just war theory students told me I knew way too many sci-fi movies. I got a DVD for xmas of the Buffy first season - I'd never seen any of them, ever, since we don't have broadcast TV or cable in the house - don't worry, we're not deprived, my kid has untold numbers of DVDs, and given her mother and her's partiality to chick flicks, if I never hear the theme song to Friends or Gray's Anatomy, it will be too soon - anyway I had never seen Buffy. It's very cute, and my kid is hooked. As, let's be honest, are her parents.

Okay, check out the exchanges over at Opinio Juris. I have to do some more grading and then get some sleep.

Merry Christmas 2006

and happy holidays or whatever greeting of the season ... We have a house full of family, not having gone away to North Carolina this year. Jean-Marie's parents and her sister and partner, plus Jean-Marie, Renee, and me. After some very lovely days - yesterday was gorgeous - today is a wet, cold, rainy day. Good for staying inside.

Jean-Marie would really like to go to the movies - we have not seen the new Bond, or anything else, for that matter. I, alas, am actually doing a fair bit of writing today - can't be helped, I have to turn this UN and global governance manuscript in to the editors the first week of January. It's also that once in the middle of editing and rewriting a chapter, it is very hard to let it go - it nags at me and makes it hard to concentrate on a movie or anything else. Jean-Marie got many gift cards to places like Barnes & Noble. And a number of Spanish grammars, reference books, and other things for her teaching over at St. Alban's school.

I am in the middle of rewriting a section on legitimacy as a concept that applies to a social order taken as a whole and only derivatively to particular political institutions within it. Essentially my point is that for a political institution to exercise the full political and social functions that require the legitimacy that inheres to a social order, it is not enough to be a particular political institution, you have to be part of a whole social order, in the sense of a "thick" domestic society. What "thick" society is the UN part of?

Which is why it is good that Santa brought me a pair of Boise silencer earphones - noise canceling, I guess, but also good for just listening. Santa is also bringing - not yet here - a very hard to find edition of some of my favorite Baroque violin sonatas in the whole world - Buxtehude (I mean the sheet music), op. 1, seven sonatas. I would like to transcribe the violin part for cello and play them with two cellos and continuo. The John Holloway recording of them is enchanting; I am completely enraptured by the Sonata No. 4 in B flat major; it begins with a chaconne and very equal parts between the violin and the cello (gamba). It is just as well that the sonatas won't arrive until after New Year, because I am way to busy even to open my cello.

Fourteen year old Renee was visited with clothes and clothing store gift cards. And chick flicks on DVD. But she also got a book that probably won't interest her, but will interest me - Brian Hayes, Infrastructure: A Field Guide to the Industrial Landscape. It is a massive photo and text book describing every kind of industrial infrastructure in the American landscape you can think of - water pumping stations, cellular and cable buildings, the air vents over the Holland Tunnel, you name it, it is there and explained in clear prose. I think of it as a Glenn Reynolds/Instapundit kind of book. She has been rereading, for the fourth or fifth time, Kazuo Ishiguro's Never Let Me Go (author of Remains of the Day). She's also been reading, off and on, T.H. Pearson's A Short History of a Small Place. I asked her to teach me to play poker for Christmas - playing cards were frowned on in my Mormon upbringing, and I never learned the game, but I'd like to know how to play. And a little handheld poker computer so I can practice.

Daddy also gave Renee a special present - a $100 account with the Iowa Electronic Markets, where you can learn to trade on a special educational futures market run by the University of Iowa business school. Real money, but limited to $500 dollars - no transaction costs - and you can bet on various political markets, such as the 2008 presidential election, or on the direction of interest rates. Of course you can just place straight bet on sites such as Tradesports.com, but this is an actual futures market, and it has no transaction costs. Renee would not normally take to this, but I figuring her interest in the 2008 presidential race might make a difference to her.

Okay, best wishes to everyone.

The week before Christmas 2006

I posted a couple of Christmas tree shots below -I'll try to replace them with ones that are more in focus. Jean-Marie has collected ornaments since she was a child, and We Believe In Loading Up the Tree. So here we are, week before Christmas, Tuesday, 18 December. Jean-Marie and Renee are baking up a storm - pecan bars, almond crescents, lace cookies, chocolate chip, you name it, while watching chick flick movies in the kitchen. Uncle Jack is doing the cross word puzzle. It is 70 degrees out in DC today. I ... well, I am working away at my computer, blogging lightly if at all, not shopping, not doing anything except crank out my UN and global governance book manuscript, which I am turning in to my editors on January 2, with a note that says, don't worry, I'll rewrite. This is in fact the right way to spend this December. It is time to get the dang thing done. But you won't be hearing from me much at all. I'm ignoring nearly any Christmas shopping I can't do online from my computer. I haven't touched my cello since before Thanksgiving.

Truth is, I don't really know what to get anyone for Christmas. Jean-Marie gave me a list of a couple of books she wants, and I've ordered those - mostly Spanish language things related to her teaching at St. Alban's. I ordered her some expensive coffee beans from Coffee Fool. I would get her clothes, or at least gift cards for clothing stores, but I think shopping in Paris at Agnes B this past summer while I was teaching IBT in the WCL summer program made her think (gulp!) this is where she should always shop for clothes. Sober, good for a schoolteacher, very French, she says. She ordered a couple of DVDs and CDs which I will wrap and give to her. At some point it seems like the only way to say I love you is with a gift certificate.

As for fourteen year old Renee, well, she told me she still has birthday gift cards to Abercrombie & Fitch. But it's still a can't-go-wrong, as far as I can tell. Actually, I have excellent taste in 14 girls clothing, thank you very much, and Renee often agrees.

When I was in New York for a board meeting a couple of weeks back, I told her I'd bring her something - she said, some item of clothing I can't buy in a mall in DC. She is not clothes crazy and definitely not extravagant. But walking around with my beloved friend John Ryle, I saw a boutique called Penguin, which I vaguely recalled was an American label from the fifties and sixties - turns out it has been relaunched. So we marched right in - I saw a dress, very slightly fifties retro, but not costumey - just slightly retro - said, this is Renee, and got it. Jean-Marie had a conniption when she saw that I had spent $200 on an everyday dress for a fourteen year old, and in theory I agree, but does Renee really need college after NCS, anyway? Renee was exceedingly dubious when she saw it (I carefully didn't tell her how much it cost and I'll thank you not to let her know), but Jean-Marie ordered her to wear it to chapel when the girls have to wear a skirt or dress anyway - got so many compliments that now Daddy is a hero. Bravo to me and promotions all around. You can see the dress here.

We are not going as we always have to North Carolina where Jean-Marie's folks are - they are coming up here. So we have family here for Christmas. The Lindbergs, Tod and Tina and Abby and Molly, are coming over Thursday night. We're doing a mini- thing with Uncle Jack tonight as he leaves to go to his sister's tomorrow morning. Meanwhile, I am writing and writing and now I have to get back to it. More before Christmas. Christmas cards will be New Year's cards and I am doing them the first week of January. Actually, I may always do New Year's cards - it is a much easier time for me than before Christmas.

My favorite ornament - the Tabasco bottle ornament that I made for Jean-Marie ten years ago

The Anderson family 2006 Christmas tree - strong believers in ornaments and lights!!

Re-issue of Hillary Rodham Clinton's 'It Takes A Village'

I see that Hillary Rodham Clinton's 1996 book, It Takes A Village, has been re-released on its 10th anniversary. I am no expert on political campaigns of any kind, but I wonder if this is such a smart idea for Senator Clinton. That book championed what I described, in a long review in the Times Literary Supplement at the time it first appeared in 1996, as "liberal therapeutic authoritarianism" - the state entering family life in order to therapeutically manage intimate family relations. (You can download the TLS review free, here.)

I would have thought, for what it's worth, that Senator Clinton has come a long way toward remaking herself as a genuine moderate within the Democratic Party, and to gaining considerable new respect for herself across the partisan spectrum especially on foreign policy, even from people instinctively hostile to her. She has a very sensible and intelligent piece, with Republican senator John Ensign in today's Wall Street Journal, for example, urging an oil trust for Iraq. I don't understand why her campaign would want to remind even moderates and independents of why they didn't like her back in the mid-1990s. But what do I know?

I paired her book in the review with a second book, a history and interpretation by social historian Emmy Werner's Pioneer Children on the Journey West, which examined the letters and diaries of written by children who made the 19th century journey west, by oxcart, handcart, walking across America. Some of those letters and diaries - many written by girls, in the rising generation of common-school literacy - are truly extraordinary documents, and what they mostly do is touch an ethic of virtue and responsibility and interior resilience quite at odds with today's therapeutic society and liberal authoritarianism.

Let me say, as someone who is not a social conservative, but a small-l libertarian conservative, that obviously the right is fully capable of introducing governmental management of families. In the mid-1990s, however, people were less aware of the ways in which the American left had shifted from its liberal-libertinism of the 1960s and 70s, the "do your own thing" years, to a new political and social formation of liberal authoritarianism. I'm sure that's not a surprise for anyone today, but I think it was a little bit news back in the mid-1990s.

There is a lot of the late Christopher Lasch in my review; he had died young of cancer just a couple of years before. There is also reference to an outstanding - and devastating - essay on the book by Jean Bethke Elshtain, if I recall from The New Republic. And there is also a reference to a truly extraordinary essay by the great sociologist and social theorist Zygmunt Bauman - his description of today's poor as being different from the poor of yesterday, because today the poor are seen as merely "flawed consumers," from the critical theory journal Telos in the late 1980s. I didn't even refer in my review to P.J. O'Rourke's hysterically funny review from the Weekly Standard or someplace (not wanting to get upstaged).

And reviving It Takes A Village today also means noticing that it is featured, thinly disguised, as the basis for one of the books in Lemony Snicket's thirteen volume children's series, his magisterial disquisition on all the ways in which adults deal with children through passive aggression (and passive aggression, let's be honest, is the tone of It Takes A Village from opening paragraph to last; Clinton addressing with the American public as though a parent dealing with a child) - Snicket's A Series of Unfortunate Events - the volume titled, The Vile Village.

Does Senator Clinton really want to bring all this back again? Well, a bit from the review:

***
Children going west

Times Literary Supplement (London)
July 19, 1996

Excerpt:

Hillary Rodham Clinton's book, It Takes a Village: And other lessons children teach us, purports to reassert the mutualism of the pioneer company at the level of America as a whole, so to remind us all that we live in a "village" that stretches from sea to shining sea. In Clinton's book, society is a village, but society is also the state. The state creates conditions of mutuality among society's consumer-citizens and additionally between these consumers and the contemporary poor, whom Zygmunt Bauman once tellingly described as suffering from the poverty of "flawed consumers". The principal task of this supposed mutualism is the raising of America's children, because, Clinton solemnly assures us, "each of us" - every person in the village - "plays a part in every child's life".

Clinton appears genuinely to believe this overheated rhetoric and to regard it as the basis for actual governmental policy. But, as Jean Bethke Elshtain has pointed out: Clinton tries to justify the extension of her metaphor by arguing that the village is evolving: "[it] can no longer be defined as a place on the map, or a list of people or organizations, but its essence remains the same: it is the network of values and relationships that support and affect our lives." Since this encompasses just about everything one can imagine, depending on how strenuously one defines "affect," what is left of the village? . . . Not a whole lot, I fear.

Nor does it ever occur to Clinton that the various state institutions in which she purports to locate a revived pioneer-style mutualism and community are nearly all "mediating" institutions, "clearing" institutions, deliberately constructed to provide not identification, but anonymity, as between donors and recipients, consumers and "flawed consumers". Clinton's village is not a village of shared, face-to-face interactions, but a universal commodities exchange of face-less, anonymous transactions. Commodity ex-changes have their virtues, as Clinton knows better than most, but affective bonds of the kind that matter to children are not among them.

Moreover, her world of institutions applied to children is not one of villagers confronting each other head-on about their gripes and irritations and disagreements, but instead an authoritarian world of strangers placing anonymous calls on toll-free hotlines to report alleged abuses of children to impersonal state authorities, who only by wilful suspension of disbelief and the complete elision of community and state can be counted as part of anyone's "community". The national consumer culture that Clinton mistakes for the national community does not want to deal directly with its neighbours, precisely because it is not a community: it wants an abstract authority (increasingly one to which it can report in secret) to do so and maintain order instead. Clinton's book is simply an elaborate way for her to raise her hand and volunteer for the job of chief authoritarian.

But if Clinton's flight to the fantasy of the village is meaningless, it is not unmotivated. She instinctively understands that while few would question the legitimacy of the state acting in its own name, for example, to fight a war, far more would question the legitimacy of the state, acting openly as the state, to determine how to raise their children, and to enter the home to see how the programme was being carried out. Hence her reach for soft ideologies, kindlier and gentler names for the state: she does not attempt to conceal the role she envisages for the state inside every family, but she does seek for it a specious communitarian legitimacy that she hopes will slide by as unassailable.

It Takes a Village is consequently, beyond the inadequacy of its central ideas, nearly unreadable, badly organized, platitudinous and noxiously pious. It would not be worth noticing - one wonders how, but for Clinton's exalted marriage, it would have found a publisher - except as a kind of index to the values of the bureaucratic-managerial New Class that Clinton embodies and which seeks in these kinds of inane materials a public ideology. It affirms everything and nothing, it is sensitive to everything but ultimately demands obedience from everyone.

Clinton's barely disguised message is that parents are agents of the state in raising children who, at bottom, belong to the state. It is a ringing surrender of the traditional (but, in America, always marginal) Left concerned with class power to the only widespread radicalism the United States has known in this century, the radicalism of the helping professions, the social-worker cops who are eager to sign up for, in Alexander Cockburn's words, the "therapeutic policing" of America's families, so to heal and nurture the body politic. Religion and God Almighty, schools, after-school programmes, day care, health clinics, Planned Parenthood, the Boy and Girl Scouts, and every non-profit organization able to put out a policy report on any subject can all be useful to the state's task of raising its children, Clinton tells parents - and mummy and daddy can be useful, too.

Clinton begins by saying that "whether or not you agree with me, I hope it promotes an honest conversation among us". It is quickly evident, however, that she intends a conversation with the parents of America in much the same way that my mother, when I was a child, intended many conversations with me - the conversation was not "honest" or "over" until I came to agree with her. Clinton's most strongly held belief is that biological parents are incompetent - as she repeatedly says, "parents . . . need 'expert' coaching" - and that unless they receive the training in parenting that she got through studying child development, and live under the "guidance" of social workers, medical professionals, child experts, and all the various "authorities" that Clinton promiscuously cites in her book, they will damage their children in endless ways, big and small.

Stated this way, of course, many parents are likely to object that, no, they feel perfectly competent to raise their children or, at least, feel they are no worse at it than the alleged experts. And so Clinton adopts the strategy of showing that she herself was hopelessly incompetent as a parent until she received the benefit of all these experts. The baldest example occurs when she recounts trying to breastfeed her daughter in hospital and being disturbed to find milk running out of the baby's nose: fortunately the kindly nurse intervened to point out that she was holding the baby in an "awkward way", ie, upside-down.

The consequences of Clinton's views for ordinary families are not trivial, and they ought to loom larger in the pre-election debate in America than they do now, especially given the increasing likelihood that Clinton will have four more years to lengthen her footnote in the history of the American family. For, relying largely on assertions of her own parental incompetence in order humbly to imply everyone else's, she proposes one state intervention after another directly into family life, such as mandatory home nurse visits to families with new babies. Ostensibly, such visits would be designed to offer unthreatening advice to new mothers and fathers: obviously the more fundamental purpose (which Clinton, with her characteristic economy with the truth, fails to mention) is to undertake surveillance directly within the home and report back to state agencies for possible further action. Such proposals, at bottom, are little more than passive aggression made public policy.

Doubtless Clinton would deny that she means any such draconian consequences, and, in any case, if a family has no shameful secrets to hide, then why should it worry about being watched over? Should we not be pleased to know that by this means all our children are protected? It is striking that after a protracted discussion of Bill Clinton's dysfunctional family, even declaring it a "legitimate family", Hillary Clinton never says whether, under her schemes of intervention, that same family today would be professionally re-organized via foster care or what the effects would have been on Bill, for good or ill, had his alcoholic step-father been imprisoned for wife-beating. She also never considers whether her own father, who "was not one to spare the rod", might not have been prosecuted on child endangerment or similar charges under the anti-corporal punishment laws of several American jurisdictions, of which her children's rights movement has been a strong proponent.

Middle-class American parents thus ought not to take comfort that such surveillance and intervention are aimed at the poor, at mothers on crack and the like, and surely not at them. Certainly Clinton intends no such limitation, if for no other reason than that her friend and president of the Children's Defense Fund, Marion Wright Edelman, would consider it racist. The great breakthrough of social-worker radicalism in the past two decades, which sets it apart from its earlier ferments in the early twentieth century, and one in which Clinton can take pride, if she likes, is the acceptance in social policy that child abuse, both physical and sexual, is pandemic across all families, of all classes, and not just among the poor. This assumption of the risk of incest by fathers with their daughters is the largely unstated basis for much family policy in the United States today. Since, according to contemporary therapeutic ideology, virtually any measure is warranted to weed out child abuse, and since it might occur within any family, no matter what the outward appearances (and denial is the surest sign of abuse), then the state must act to dismantle the wall of privacy behind which the family in this century has existed. It has extended by an act of ideology the management of the poor to the management of the middle class: Clinton is unapologetic about wanting to extend it still further.

There is, of course, a residual appeal to constitutional liberties to which the courts still sometimes refer (often only after, however, children have been removed from their parents, sometimes for years, while the courts and the social service agencies that Clinton regards as the backbone of the family consider such questions as whether a three-year-old unweaned child is sexually abused by suckling). But, in fact, liberalism's wall between public and private is a waning paradigm.

With the loss of privacy, however, also goes the very possibility of family intimacy. Just as every serious religion knows that there can be no sacred without a veil between the world and the inner temple, so too intimacy requires that it not be visible to the world. Despite their lip-service to the preservation of intimacy, in the eyes of the therapeutic classes this loss appears to be no bad thing, being yet another step on the road to eradicating abuse.

Two recent articles on microfinance and the Yunus Nobel Prize

The Nobel Peace Prize will be awarded to Muhamad Yunus for his work with Grameen Bank in microfinance this coming Sunday in Oslo. I've already said some stuff about this, in an earlier post when the award was announced, here. But here are two recent articles on Yunus and microfinance, this one from the New Republic, and this one from the New Yorker (which also covers the borader topic of venture philanthropy).

Unfortunately I don't have time now to comment on them, although I think they are each problematic in different ways. I'm in the middle of a survey of recent books on microfinance to write a review for the Times Literary Supplement in January, and then a longer, academic review essay later on - it's a lot of reading. The last time I went through the technical literature systematically was back in 2002 around the time I was writing this article on microfinance and globalization, and there has been a huge increase since. Most interesting to me has been the entrance of formal economics into the field. Maybe I'll try to make some comments on all this, but in the meantime, congratulations to Mr. Yunus.

***
Why Nobel laureate Mohammed Yunus will doom microfinance.

Poor Vision

by Andrew Curry

Only at TNR Online
Post date: 12.07.06

By now, Mohammed Yunus's first loan--$27 from his pocket to a group of bamboo furniture makers in a Bangladeshi village--is a legend in the international aid community. Inspired by the results of his modest 1974 experiment, Yunus, an economist, went on to found the Grameen Bank, which today provides millions of Bangladesh's poorest with life-changing access to credit.
Yunus will be awarded a Nobel Peace Prize for his work this Sunday in Stockholm. The honor is proof that small-scale lending to "the bottom of the pyramid"--or so-called "microfinance"--has become the hottest idea for solving poverty to hit the development community in decades. But following Yunus's vision is the best way to doom a promising movement to failure.

The problem isn't Grameen's size or its borrowers, but its philosophy: Yunus is firmly anti-profit. "Maybe banks can make a profit from [loaning money to the poor]. ... But this is what loan sharks do," Yunus said after his Nobel win was announced in October. "We have enough enterprises generating money for profit. I would rather think that the rich can set up social enterprises." Yunus even objects to the term "microfinance," preferring the profit-neutral "microcredit."

This principled allergy to profiting from the poor may be part of the reason why Grameen still depends on NGO grants and its founder's incredible charisma to stay afloat. Indeed, Grameen is glorified philanthropy, not banking. If small-scale financial services are to be a long-term solution to the problem of poverty, they need to embrace profit.

The reasons lie in the realities of lending. Though Grameen and others have convincingly dispelled the notion that the poor are bad credit risks--Grameen's reported repayment rate is close to 99 percent, comparable to that of most commercial banks--microfinance still poses huge challenges. Big banks have traditionally shied away from loaning to tiny customers, because doing business on such a small scale is very expensive. Since small-scale borrowers are often illiterate, with little or no collateral and primitive or nonexistent bookkeeping, evaluating their creditworthiness is a labor-intensive process.

Take the case of Serbia's sole microfinance bank, ProCredit Bank Serbia. The bank's 330 loan officers visit two or three clients a day. Loans are evaluated based on business plans and capital, but personal behavior and family reputation can be equally significant. "These businesses don't have books--this isn't a corporation," says ProCredit Serbia executive board member and former loan officer Mirjana Zakanji. "We have to assess the potential of the owner of the business, because they're also the main employee." Eighty percent of the bank's 7,000 new loans each month are for less than $12,500. (The European Bank for Reconstruction and Development defines microcredit as any loan under $38,500.)

Given the intense--even holistic--work involved in each micro-loan, it's not hard to see why most banks would rather issue a single loan of $1,000,000 than, say, 10,000 loans of $100. Yet microfinance banks around the world have managed to turn lending to the poor into a profitable, sustainable business in the last decade, even at the very smallest loan levels. ProCredit Bank Serbia's German parent, ProCredit Holdings, has profitable branches in Haiti, Congo, Angola, and El Salvador. Indonesia's state-owned, commercial Bank Rakyat started offering micro-loans in 1984. Today, its smallest micro-loan unit has over 700,000 clients and turns a profit, despite a $33 loan average.

How can loans so small make money? Microfinance banks are forced to charge high interest rates just to cover costs--and even more to make a profit. In a study of South American microfinance banks published in April, Harvard Business School professor Michael Chu found interest rates ranging from 21.76 percent at Bolivia's Asofin to 87.5 percent at Mexico's Compartamos. In India, microfinance banks typically charge at least 30 percent a year.
Compared with Grameen's rates (between 10 and 20 percent per year, about what Americans pay for their credit cards), that's high. And that's what bothers Yunus. High interest rates have drawn increasing fire from other quarters, as well, with the spread of micro-lending. Last year, Indian officials used a spate of rural suicides as an excuse to shut down microfinance bank branches and threaten interest rate caps of 10 percent, a level that would put most of the country's microlenders out of business.

But the profit motive isn't necessarily bad for poor borrowers. Profit breeds competition, which in turn lowers interest rates, as microfinance banks compete for clients. In markets where multiple banks have gotten into the microfinance business, interest rates have dropped significantly, and the banks have grown. Chu cites Bolivia's example. When the first micro-lender opened there in 1992, it charged 35 percent interest. Intense competition in the years since has driven the average interest rate down to 21.23 percent, South America's lowest.

"There are all kinds of prejudices and value judgments when you talk about profits and the poor," says Chu. "Those are just knee-jerk reactions. The prejudice against profit is a judgment made by emotion, not efficacy." And for-profit microfinance banks are still a bargain when compared to the only other option available in many parts of the world: traditional moneylenders and loan sharks, who normally charge 10 to 30 percent interest per month, or more than 1,000 percent per year.

Moreover, if financial services to the poor are to grow, they need to be able to do more than cover costs. When microfinance banks make money, they earn the capital necessary to expand, making more credit available to more people. And, whereas Grameen's transparency leaves much to be desired, commercial banks are held to a higher standard of accountability. "To develop this type of business to a high level, it needs to be financially stable and sustainable," says ProCredit Serbia's Zakanji. "There are thousands of NGOs rushing around the world without clear goals. Commercial institutions with demanding shareholders will be more successful in the long term than most of these guys." Indeed, after three decades, the sector is finally on the verge of becoming an attractive investment. In the last year, major funds like TIAA-CREF and banks like Citigroup have announced plans to invest in microfinance operations.

That's why the worst thing that could happen at this stage is for profitable banks to be undercut by subsidized competitors like Grameen. To be sure, it may be difficult for some commercial banks to reach the "poorest of the poor," as Grameen does. Banks like ProCredit serve mainly micro-entrepreneurs, poor people with skills or businesses who need capital to grow or stand alone. But, any financial institution--even Grameen--requires that borrowers pay the money back, with interest. A strong case can be made that, instead of taking on debt, the truly destitute will always need the help of charities.

There's no doubt Yunus deserves his prize. His work has been instrumental in changing the lives of the poor in Bangladesh, and his success has given the microlending effort invaluable credibility all over the world. But, while Yunus has described his vision as a panacea for poverty, it's not a universal solution. If the idea is to succeed, the development community must set aside its distaste for profit and embrace the market.

Andrew Curry is a freelance writer in Berlin, Germany, and a former Fulbright journalism fellow.

Thanks to Sanford Levison for coming to Hoover DC to talk

On December 4, 2006, my dear friend Sandy Levinson came over to Hoover DC's offices at Dupont Circle and talked about his new book, Our Undemocratic Constitution. Tod Lindberg, editor of Hoover's Policy Review and I host these meetings, which are always very small, just a group of interesting people talking around a conference table. But this particular discussion was very good - it had perhaps more of a comparative law and political science flavor to it, with Mark Plattner, editor of the Journal of Democracy, leading off with a response, and then other people such as Bill Galston and Fernanda Nicola (an expert on the EU from my law faculty) and Steve Rickard from the OSI DC office and the writer Michael Lind and Amanda Frost (a federal courts and constitutional law scholar also of my faculty) and Volokh Conspirator and GMU law school professor Ilya Somin weighing in. A great discussion, my thanks to everyone for participating, and a particular thanks to Sandy for coming to do it.

Donald Horowitz warns against partition in Iraq (in WSJ)

Duke University law and political science professor Donald Horowitz is one of the very smartest people I know, and is one of the handful of the world's leading experts on ethnic conflict - his Ethnic Groups in Conflict remains, after twenty years, the leading study, and I strongly recommend his 2001 book, The Deadly Ethnic Riot. Professor Horowitz has written several important pieces in the Wall Street Journal on ethnic strife and the political risks and possibilities there. His most recent piece appeared on Monday, December 4, 2006 in the WSJ opinion page, and I strongly recommend it to anyone trying to figure out Iraq war policy. Here in the WSJ. A bit of it:

***
The Iraq Alternative

By DONALD L. HOROWITZ
Wall Street Journal
December 4, 2006; Page A16

Just when you thought the midterm election results had weakened President Bush's hand in Iraq, it turns out the opposite is true. The president has been liberated from a stay-the-course policy that the Iraqi government could pocket as an open-ended commitment. The voters have given Mr. Bush a chance, perhaps a last chance, to turn Iraq in a new direction.

The Iraqi government does not want the U.S. to leave now, but the American electorate has said that the choice is to show real progress or draw down the troops. For the first time in many months, the Bush administration has a credible weapon to use on the Iraqi government and its Sunni opponents, who increasingly see the U.S. as their last line of defense against Iran and against Shiite militias.

* * *
Many of Iraq's current problems stem from the Kurdish-Shiite attempt to carve the country into a confederation of three regions with a very weak central government. The result would be to leave the Sunnis, who strongly favor an indivisible Iraq, with a rump region in the center, devoid of most oil revenue. The deal would also leave minorities, large and small, stranded in zones dominated by their opponents and their respective militias. Sunnis hate this deal, and so should we. They fear it will make Iraq an Iranian satellite. If regionalization deteriorates into partition, they will likely be right, at least in the south, where pro-Iranianism, although contested among Shiites, shows signs of winning.

Partition would bring horrific bloodshed as minorities are targeted and forced migration purifies territories. The regions could very well go to war with each other over contested boundaries and people left on the wrong side of a border. Smaller groups will organize to resist, and outside forces will surely be drawn in. Turks may aid Turkomen in the north, as they have already threatened to do. Sunni states, especially Saudi Arabia, are deeply fearful of growing Iranian influence on their own Shiite minorities, and they will probably aid the large Sunni minority in the south of Iraq and those stranded in the center. The position of Islamic radicals will be strengthened.

If Iraqi politics does not change, this is the most likely outcome. Since it threatens all the Sunni states in the region, partition also means the danger of a wider war. Even though the violent partition of Iraq is not in America's interest, the U.S. will be blamed for it. Or, in the paranoid version, this is what the "Zionist-imperialist conspiracy" planned: division of an Arab country, accompanied by mass killing.

How does the Bush administration use its new leverage to prevent this? If the Iraq Study Group thinks the road to peace in Iraq runs through Iran and Syria, it has missed the point. Neither country has had any interest in fostering stability at a price we would or should be willing to pay. The only chance for peace in Iraq lies in changing the Kurdish-Shiite deal so that the Sunnis are incorporated into an undivided federal Iraq with a real central government, limited regional autonomy, and a new agreement on the distribution of oil revenue.

The odds may not favor such a new dispensation. The violence and distrust have gone too far, and strong measures against militias will be necessary. Still, the Sunnis know that if American forces leave Iraq, they are vulnerable to brutal repression. They would prefer a unitary state to a federal Iraq, but they have been coming around to accepting a federation that is not loaded against their interests, as the current arrangement is. Shiites also have reasons to reconsider. The Maliki government has not been able to put down either the Baathist or the Islamist insurgency. The former is particularly well organized and hard to defeat. Not all Shiite elements in the Iraqi regime are friendly to Iran, and they must understand that foreign Sunni states might just fill a vacuum left by departing Americans.

There is a process in the Iraqi constitution to produce the amendments demanded by Sunni opinion before the 2005 constitutional referendum, but Kurdish leaders and Shiite advocates of an autonomous south have made clear their opposition to fundamental changes. A parliamentary committee was duly appointed to consider amendments; it has wasted months squabbling over trivia. By contrast, last month the Iraqi parliament narrowly approved, over a strong boycott led by Sunnis, secularists and some Shiites, a law prescribing the procedure for the regionalization of the country. So things are going in the wrong direction. The U.S. needs to turn this around.

The Maliki government should have a choice: progress on real Sunni incorporation in the regime, or progress on phased American withdrawal. Sunni incorporation would need to begin with a revitalized and serious constitutional amendment process to avert the de facto partition of the country. To convince Sunnis that this was genuine, the government would have to discuss a Sunni agenda, make serious constitutional proposals in the amendment committee, work harder to cool down Shiite militias, reverse the most extreme de-Baathification purges in the civil service, and possibly reshuffle the cabinet. If it did all this earnestly so that Sunnis were drawn in -- as they would have every reason to be -- the Baathist part of the insurgency might either decline or be less warmly received in the Sunni heartland. Recall that even the Saddamist insurgent Ibrahim al-Douri recently called for a truce. External supporters of the Sunni insurgency would have good reason to urge Sunnis to participate in the new initiative to empower them, and if Sunni insurgents were less active, Shiite revenge killings would probably decline.

Shiites who are not pro-Iranian could find the proposals congenial. These would include some in Mr. Maliki's own Dawa party; supporters of the Fadhila party, which is strong in some southern provinces and opposed to a single, nine-province region there (in which they would be in the minority); and even followers of Muqtada al-Sadr, whose base is not in the south. All are wary of the largest Shiite party, the Supreme Council for the Islamic Revolution in Iraq, and its leader Abdul Aziz al-Hakim, the main proponent of a strongly autonomous south with close ties to Iran. There is a more complex politics in Iraq than the one that has formed the basis of U.S. policy thus far.

If such an initiative failed, there is another option for the Iraqi regime. The Maliki government has periodically complained that the Americans have tied the regime's hands in dealing with insurgents. If we pulled back or drew down our troops, government forces could be expected to deal brutally with Sunni insurgents and the hospitable civilian population in which they flourish. The results might or might not favor the government, but either way they would not be pretty. If the Islamic radicals were defeated and prevented from making a comeback, that short-term result would be congenial to our interests, but it is hard to believe that the U.S. could stand by and watch the brutality that made it possible.

Furthermore, if the Maliki government did succeed in repression on this scale, a truly authoritarian regime would likely emerge, with a Shiite region in the south, forcible Shiite occupation of the center, and de facto independence in the Kurdish north. This would be a kind of reverse Saddamism, but without its secular features and with strong Iranian influence. Like partition, this would be a decidedly poor outcome for the U.S.

* * *
There are three main options facing Iraq. One is gloves-off repression. The second is protracted conflict, gradual partition, large-scale ethnic cleansing, and the prospect of external intervention or even outright warfare among states in the region. The third is a last-ditch political effort to reconstitute an Iraq that keeps it whole and includes Sunni interests. This alternative aligns the U.S. squarely with ethnic inclusion and territorial integrity, both worthwhile causes, and with Iraqi political forces whose agenda happens to coincide with ours.

The third course may not have a high probability of success, but it is low risk and, if it succeeds, offers great benefits to Iraq and the U.S. This approach recognizes the large area of overlap between Sunni interests (and those of our regional allies, Jordan, Turkey and Saudi Arabia) with our own. It also offers the prospect of attracting Baathists and isolating al Qaeda insurgents, and it recognizes important differences among Shiites, aiding those who do not wish to see Shiite Arabs subordinated to Iran.

This third course probably will not produce a full-fledged democracy, but it could produce minority guarantees and impediments to a nasty, ethnically exclusive autocracy. In the short run, it will not produce complete peace either. But it should still reduce the violence, and eventually could produce a stable regime that limits Iranian influence, Kurdish provocations of the Turks, and terrorist domination of the Sunni areas.

Keeping all the contending groups attached to Iraq would be a major achievement. If, however, this plan fails, nothing will be lost over and above what is already lost. For the U.S. administration, the plan is an attractive option, for it offers what the electorate demanded: real progress or a drawdown of troops. President Bush's newfound power, paradoxically produced by an election loss, makes this a serious option and the threat underlying it credible with the Iraqi regime. There is no reason not to go down this road.

My fall 2006 International Business Transactions final exam

Like a lot of other professors who teach international economic law, I have been thinking about pedagogy in international economic and business areas at a time when it seems many law faculties are thinking about the role of international and comparative law in the ideal law school curriculum. One thing that characterizes my IBT classes is that I draw for material very frequently on the pro bono development finance practice I have through my work with a leading NGO in the field, the Media Development Loan Fund. I find that working with MDLF means that I have available to me a wealth of private deals that arise in the developing world - in media, in this case, but covering print, TV, radio, and internet - requiring a lot of creative financial thinking to overcome many obstacles such as political risk, lack of a firm rule of law, lack of public capital markets, lack of very many good exits from transactions, etc. This year, like last year, I have drawn on recent activities of MDLF in Africa for the final exam in IBT. I don't think the question is as good as last year's on post-war reconstruction and conflict diamonds - here - but, still, it does address a real, live business problem for many African newspapers, the availability of newsprint. Here is the exam that was distributed as a takehome this morning. (I am giving students the full exam period, about two weeks, to complete it. It is page limited to 16 doublespaced pages.)

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Question 1
50% - 8 Pages
Newsprint in Africa

You are the General Counsel to the Africa Fund, a for-profit investment fund based in Washington DC that seeks to find profitable investments in sub-Saharan Africa that will both make a profit and, in broad economic terms, increase foreign investment in African countries. The fund has a combination of private and public investors; the private investors include such major private investment players as the Blackstone Group and the public investors include different aid agencies of the United States, the EU, and Japan. Although the Fund has a broad development goal in mind which has caused the various aid agencies to invest, it is nonetheless a fully for-profit venture, expected to make a commercial return on its investments.

The managing director of the Fund, Philippa Foot, has just returned from a trip around various countries in the region looking at various new investment possibilities. She has just been in to see you about one of them and has requested a memorandum from you outlining what you see as the possibilities, limitations, financial structures, legal structures, and legal issues involved in a possible undertaking, including the possibility that what she is describing might be a very bad idea. You are mulling over the conversation and sitting down to write the memorandum she has requested. Ms. Foot demands that anything put in writing to her (especially from the legal department) be well thought out, well organized, concise, and never, never, never merely rambling. Because you live by this rule, you have been the General Counsel for the past five years while three of your predecessors were fired.

In South Africa, Ms. Foot had conversations with Trevor N., the proprietor of a large newspaper conglomerate in South Africa and Zimbabwe (his paper in Zimbabwe is the last semi-freely published newspaper in that country, and although Trevor is himself Zimbabwean, he does not dare travel back for fear of being imprisoned – again). Ms. Foot had asked him what his biggest financial concern was and whether investment could profitably be made in his newspaper chain. His answer had surprised her. She had expected that he would talk about the difficulties of getting advertising in a difficult market, the need to improve printing facilities through investment in new printing equipment, political pressures, and the need to reduce staff to reduce costs.

Instead, however, he had stressed that his biggest headache was the exorbitantly high cost of newsprint – the paper on which the newspaper is printed – and that sometimes it was not to be had at on the market at all. Asking why, Ms. Foot was told that newsprint was at a premium in international markets, and that large enterprises in other parts of the world had long term supply contracts with producers, particularly farmed paper mills in places like the US Pacific Northwest, Finland, and other producers of newsprint. The result was that long term supply was locked up in long term contracts by large users of newsprint, and places with relatively smaller needs found that they had to buy newsprint at the most premium “spot” price of what was left over on the world market.

Trevor N.’s question for Ms. Foot was whether there was a way in which the Africa Fund could invest in creating a capacity for purchasing newsprint on a long term basis to assure supply at a lower price than premium world market “spot” prices. She told him she didn’t see how, exactly, since his problems would simply be her problems if the Africa Fund tried to buy newsprint on his behalf. She then continued her tour in Africa. What she found, however, was that in every country she went and met with newspaper owners, the complaint was the same – Angola, Mozambique, Senegal, Botswana, Kenya, and other places. Newsprint was very expensive, hard to come by, and the supply was often insecure.

Ms. Foot gave this a lot of thought, and one question she asked everywhere she went was, is the problem that you simply cannot afford the world market price of newsprint – is the problem that you could only afford newsprint if the price was well below market? The consistent answer – one she has sent a team of sharp-eyed accountants and financial analysts to determine for sure – from the newspaper owners in these various countries and markets is that they could afford to pay the same price that global purchasers operating on long term contracts were paying. She wasn’t entirely sure that was true – she thought some of the owners in some countries were being overly optimistic, but for purposes of her current analysis, she is willing to assume that is true.

Ms. Foot’s question for you, as General Counsel and strategic advisor, is whether you see a way in which the Africa Fund could somehow, some way, bring together the different businesses in the different countries to gain greater market power together and so get better prices and more assured supply of newsprint. At the same time, she wants to know what the role of the Africa Fund might be, on the assumption that it is willing to put up some amount of capital, but wants its participation to be no greater than 25% of the total of capital put into any investment arrangement, with no more than 25% of the risk and 25% of the return – but an absolute veto on any decision to enter into binding, long term contracts with any newsprint producers. She is open to the idea that the Africa Fund might not put in straight cash into an investment arrangement, but might put its cash in another way that might be used to anchor the first purchases of newsprint from sellers. Trevor N., for his part, has the strongest media conglomerate and can afford a higher price than the other media owners – they, on the other hand, are highly concerned that they might get themselves stuck in an arrangement in which they are committed irrevocably to a price they cannot afford to pay. Ms. Foot would like something that takes these concerns into account. She also notes that one of the Kenyan owners is a larger paper aiming to maintain market share in Nairobi with a small but aggressive competitor – she suspects that the larger Kenyan paper might actually prefer a higher price because it might hurt his competitor more than it hurts him, and she wonders how an arrangement might deal with that, or if it even can.

She has been burned before in joint ventures and although she is willing to entertain a possible JV arrangement, she wants to know how in fact it would really work and solve the problems posed. She is also concerned that in several larger countries – Kenya and South Africa, for example, some of the potential participants in the newsprint purchasing scheme are also competitors with each other in their own markets – how, if at all, should this affect the analysis, or is it irrelevant? Her ballpark estimate of how much total startup funds from everyone combined would have to be in order to negotiate seriously with international newsprint vendors is US $2 million; she wants to be sure that the Africa Fund gets back its investment and a reasonable return. This is not, as she pointedly says, charity work.

Draft that memo to Ms. Foot, giving a structuring scenario and explaining how it solves the financing issues, and further explaining how it works from a legal standpoint, stating the documentation necessary to make such arrangements work and identifying the most essential terms that need to be specified in the documents – not the run of the mill stuff, but the terms critical to this deal. Be both strategic advisor and lawyer.


Question 2
50% - 8 Pages
The International Newsprint Vendors

Same facts as above question. Congratulations – Ms. Foot liked your previous memo and you are still employed!! She has set up a structure based on your scenario, and the investment arrangement is now prepared to go forward with purchases of newsprint.

The Africa Fund, acting as negotiator on behalf of the various newspapers, is now entering into negotiations with several different, independent newsprint sellers in different places in the world. The Africa Fund, using the structure you created earlier, has at its disposal US $2 million, 25% of which it has contributed in some fashion. It can use that money any way it sees fit, but the fundamental issue is that it needs to acquire commitments for $6 million of newsprint to be delivered in equal installments over a three year period. It does not have $6 million dollars to simply pay for newsprint over three years. It needs a way to spread the payments over the three year period in which the newsprint will actually be used, while ensuring that the obligation to deliver at a set price remains good.

None of the vendors is very happy about going into a long term contract with the African parties when they could use the same newsprint to go into contracts with much more financially stable companies such as the New York Times or Le Monde. Ms. Foot originally did not understand why the vendor should care; if the purchaser did not make payment, then the seller could stop shipment, but apparently the shipments must be made in bulk, a year’s worth of newsprint in order to make the shipping economical, so the vendor really does care about getting paid. For their part, the African companies are worried about the quality of the newsprint – the Finnish vendor is reputable, but if the quality of the paper is not good, the new and expensive color printing presses that several of the newspapers have recently invested in will not be of any real use, because the paper won’t take the color inks.

The Finnish vendor is willing to consider a lien against the best assets of the African purchaser group – meaning, Trevor N.’s printing presses in South Africa and Ken’s printing press in Nairobi. Neither is wild about this idea, but each would consider it since between the two of them, they would receive the bulk of the newsprint in any case, and at a much more favorable price than they currently pay. They worry, however, that the failure of the five other, much smaller, financially weaker newspapers to pay their share could force them to make up the loss in order to avoid losing their presses; furthermore, Trevor and Ken would only do this knowing that the other one was doing it as well. They therefore want to find some arrangement that, while granting liens on the presses, gives them some protection. The Africa Fund is willing to consider an additional investment, beyond its current participation, to protect against this possibility, provided that it is limited to 50% of the additional risk involved.

Ms. Foot wants you to provide her with a memo proposing a way to structure a deal with the Finnish vendor, understanding that there are many contingencies on which you may have to simply state some assumptions in your memo. She wants to know how you would structure the overall transaction with the Finnish vendor, and any subsidiary arrangements that need to be made by or with other parties. She wants to know, of course, what the Africa Fund’s particular role will be, both in directing the use of the existing $2 million, and the additional risk commitment that she has indicated that the Africa Fund might be willing to make. In offering a strategy, act as both strategic advisor and lawyer and give a plan for how legally to document the arrangement, focusing not on the standard clauses of any relevant documents, but the ones that are essential to this deal.

END OF EXAM
HAVE A GREAT HOLIDAY!!

Final paper topics for my NCS students in Just and Unjust Wars class

I volunteer to teach a class at my daughter's school, the National Cathedral School for Girls, in Washington DC (wikipedia article), on ethics and war, Just and Unjust Wars. It is essentially a stripped down version of a class I teach at my law school, and have taught over the years at Fordham, Columbia, and Harvard law schools. The students I get from NCS are very good writers and thinkers - so are the boys who come over from St Alban's. They are usually seniors, and I get several of the best students in the grade. Actually, some of the youngest students have been among the very best - two girls, then sophmores, for example, who gave me amazingly subtle readings of Lincoln's Second Inaugural, both of whom are now at Yale, and I have one extremely good sophmore this year. I feel like I can give them pretty difficult material to work with in ethics. So here are the final paper topics for the class; pick one or design your own question:

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1. We have spent a lot of time in this class discussing the differences between moral realism and the just war tradition. Pick one or the other and defend it. I mean by that offer a definition of each, assert that one or the other is a better moral theory, and defend that assertion. Assume you propose to defend just war theory against realism. In order to mount a defense, you want to do two things. First, what do you believe is affirmatively correct about just war theory, on its own terms? On what grounds do your support those claims? Second, on what grounds could just war theory be attacked by a supporter of realism – and how do you respond to and answer those attacks framed specifically from a realist perspective? Or flip this around and defend realism against just war theory.

2. Who has right authority to fight a war? Are there any limits on who morally is entitled to take up arms to fight against a political authority in a political cause? If there are limits, what are they? What reasons can you give in favor of any limits you might propose? What objections can be made to your proposed limits? How do you respond to those objections?

3. The great military historian John Keegan wrote this past week in the British magazine Prospect on the question of whether Iraq has now become a civil war. He believes that it is close but not yet there. He might or might not be right about that. More importantly, he offers historical criteria for what constitutes a true civil war as distinguished from more minor internal armed conflicts. Offer a reconstruction and critique of his argument, applied to Iraq but also taking into account other historical wars, such as the American Civil War. The question that I want you to address is, in the first place, whether you accept the criteria he offers for what constitutes a civil war historically, leaving aside whether he is right about Iraq. On the basis of what you know about other wars, are his criteria correct or not. You may express your view as to Iraq, but the question for the paper is whether the criteria against which he purports to examine Iraq are the correct criteria. Give arguments in favor of his view, against his view, and reach a conclusion. The article is here:
http://www.prospect-magazine.co.uk/article_details.php?id=7951

4. In saying “war is hell,” Sherman asserts (one of several ways of glossing the phrase) that because his side did not start the war, and because it was aggressed against by a South seeking unlawfully to secede, any action he takes to correct that fundamental injustice is moral, justified, and indeed is not really “his doing” because he is simply taking corrective action, responding, as it were, to an action taken by the other side. Partly he is saying that the non-aggressor side is entitled to any action to correct the injustice of aggression and partly he is saying that the unjust action by the aggressor creates a sort of “opposite but equal reaction” for which the non-aggressor is not morally responsible. This moral view shares with realism a rejection, in principle at least, of any limits in war, but I have characterized the position not as “realism,” but instead as a kind of “super-justice” position, one which relies on a view that what the aggressed-against is entitled to do knows no limits in order to respond to the unjust aggression, because the aggression was unjust. Leave aside the question of whether the South was actually the “aggressor” or not in the Civil War; assume for purposes of the discussion that it was. Is Sherman’s moral argument for potentially unlimited war in the name of righting a wrong morally correct? Assert a view, offer arguments for and against, responding to your arguments, and responding to the critiques, and reach a conclusion. (One source to draw upon by way of critique of Sherman's position is just war theory and the criteria of balance of good over evil and proportionality. But are these criteria of justice, and if not, how do they weigh - how can they weigh? - against Sherman's claims of justice?)

5. Walzer says at page 51: “The wrong the aggressor commits is to force men and women to risk their lives for the sake of their rights. It is to confront them with the choice: your rights or (some of) your lives! Groups of citizens respond in different ways to that choice, sometimes surrendering, sometimes fighting, depending on the moral and material conditions of their state and army. But they are always justified in fighting; and in most cases, given that harsh choice, fighting is the morally preferred response.” (emphasis added)

Focus on the final judgments that Walzer makes – that they are “always justified in fighting” and that in most cases, fighting “is the morally preferred response.” (a) Is this consistent with the Christian criterion of the just war, that one weigh the balance of good over evil in the overall circumstances, including those of your enemy, in deciding whether or not to fight? See the materials in James Turner Johnson and the Stanford Encyclopedia to help sort out the meaning of that Christian criterion. (b) Whether this is consistent or not with Christian just war theory, is Walzer right or wrong in your view in the two statements that I asked you to focus on? Why or why not? What are objections to Walzer’s view and responses he might make to the objections?

6. Consider the definition of a legal combatant eligible for POW status and the combatant’s privilege under Geneva Convention III, Article 4. I have indicated in class that POW status gives a detainee significant benefits – interrogation must be limited to merely name, rank and serial number; treatment in detention must be generally as good as that of soldiers of the “Detaining Power,” trial for war crimes or other matters must be (with some legal limitations; I am sliding over some things legally) the same as court martial for the Detaining Power’s own soldiers, etc. On the other hand, as I have also indicated in class, if one flunks the test of being a legal combatant – because, especially, you belong to a group whose methods of war are the systematic violation of the laws and customs of war, such as Al Qaeda or, back in the Yugoslavia wars, massive ethnic cleansing and massacre such as the Serbs undertook at in Bosnia and especially Srebrenica – then one is an illegal combatant (or “unprivileged belligerent”). The rights of an illegal combatant are far more limited than those of POWs and are those found (more or less; I am fudging some important legal complications here) in Common Article Three of the Geneva Conventions (p 151-2 of our materials). It affords important protections – no torture, summary execution, etc. – but falls very far short of the standard of full POW protection.

Is this distinction morally correct? Assume for this purpose that we are in a war – ignore debates over whether the war on terror legally constitutes a war. Should every detainee be afforded full POW protections, irrespective of whether he or she meets the legal requirements of Article 4? What are the arguments for and against giving every combatant detainee in war full POW rights? Is it morally just or even morally required to give all detainees the same rights, or is the distinction as it stands morally justified? Beyond the moral arguments over whether justice requires giving all detainees the same rights in detention – the Serb militias whose systematic modus operandi was rape, pillage, and massacre as much as the honorable soldier – what incentives, good or bad, are created by one policy or the other? If your views about what incentives are created differ from what you believe the just policy to be, which takes precedence?

(Bear in mind that even a POW can be tried for alleged war crimes – indeed, every state has an obligation to do so, whether its own soldiers, those of the enemy, or civilians of either side. But the procedural protections for a full POW in a trial are very different from those under Common Article Three, which affords only a “regularly constituted” court. So the issue of war crimes is not that either legal combatants or illegal combatants are excused from trial for war crimes; the question is whether you have all the trial protections of a POW.)

7. What is the doctrine of the double effect? Describe it and give an example of what it claims. How does it relate the concept of “collateral damage”? (See page 184, my NYT magazine article on the laws of war.) What is the legal expression of it in the law of war? (See Protocol I, Article 48, 51 (4) and (5), 52.) But what are the consequences if you give up the distinction and say that it is morally invalid or false? Is it still possible to remain within the framework of just war theory if you deny the double effect doctrine? What position(s) might giving up the distinction between “intended” and “merely foreseen but not intended” lead you towards? Why, in other words, is the double effect doctrine – whether it is valid or not – understood to be so essential for the jus in bello limits upon fighting of just war theory? With that as the very profound background consequences of your answer - does the double effect principle seem to you a valid moral distinction or merely sophistical? Argue for and against.

8. Should blinding laser weapons be allowed as a means of warfare? Or should they be outlawed, in favor of weapons that “merely” kill people? Are there any other weapons that you think should be outlawed as a matter of law even for use against combatants alone – chemical weapons used tactically in combat only against combatants, small exploding bullets, poison, or anything else? Why or why not?

9. What is siege warfare, and why is it so horrible? Read the account of the acquittal of von Leeb at Nuremberg, in Walzer, pp 166-7. In particular, what is the special role of civilians in siege – as reflected in von Leeb’s cruel yet (then) lawful behavior? What is Walzer’s view of how siege should be handled with respect to civilians and noncombatants. Now read Article 54 of Protocol I (p 163). Describe the differences between the two. (In a roundabout way, Art. 54 seeks to outlaw siege warfare – how? Parse Article 54 and compare to Walzer.) Which is morally the better approach? What as a practical matter is likely to be the result of Article 54 – is it likely to achieve its legal aims? Assume that as a practical matter, Art. 54 is not likely to be effective, even though you believe it is the morally best approach. How do you reconcile the difference between the morally best approach and the practical consequences likely to result from it? (The core of this question is to parse both Walzer and Article 54, and then compare. It is an exercise in close textual reading.)

10. Read Lincoln’s Second Inaugural Address and my commentary on in it in the TLS. Focus on the phrases in the last paragraph of the Address beginning “with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in,” ie, finish and win the Civil War though it might mean more bloody battles. Many have taken those phrases and the phrases in the preceding paragraph “both read the same bible and pray to the same God, and each invokes his aid against the other” as an argument that Lincoln essentially accepted that right and wrong in the war was merely how one side saw things against the other side. It is to suggest that Lincoln here espouses a form of moral relativism – we see it this way, they see it that, who is to say who is right, except power and the force of arms? I argue against this in the last two paragraphs of my review. Make the argument that these sections of the Address espouse a moral relativism. Reconstruct my argument that they do not, but instead point to Lincoln seeking to do something morally quite different. What do I argue that he seeks to do, rather than relativism? Agree or disagree with me, offer reasons for your view, offer objections to your view, and then answer them.

11. Should the two sides in a war have to obey the same rules? Suppose one side is significantly weaker technologically and materially than the other side. Why shouldn’t it take the few advantages it has – such as the ability to hide among civilians and to use human shields, to target civilians in terrorist attacks in order to break the morale of the stronger enemy? This is not to suggest that there should not be rules – but that the rules should take into account how strong your side is. The weaker side should not have to fight according to the same rules as the stronger side – the rules simply favor the stronger side, and the weaker side is morally entitled to a more limited set of rules. Agree or disagree with this position, taking into account both moral arguments as well as a discussion of the practical incentives likely to result from such a “non-reciprocal” rule.

12. Ye have heard that it hath been said, An eye for an eye and a tooth for a tooth, but I say unto you, That ye resist not evil: but whosoever shall smite thee on they right cheek, turn to him the other also ... love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you. Luke 6:38-48.

Jean Bethke Elshtain, among other Christian theologians, and drawing upon Augustine among others, has said that under some circumstances, even war can be seen as an act of Christian love and charity. How do you reconcile Elshtain’s view with the above passage of Jesus preaching, in the Gospel of Luke? Can they be reconciled? Or is the attempt to do so simply hypocrisy? If you think they can be reconciled, what role might the just war tradition play in that reconciliation?

13. Evaluate the following passage from Blood and Belonging (1994) by the (cosmopolitan) Canadian scholar-activist turned politician Michael Ignatieff, reconstruct its several arguments and claims, and extend its meaning to the place of soldiers and armies in relation to cosmopolitanism and those who would claim that they are only incidentally citizens of a particular nation-state, but are instead "citizens of the world."

It is only too apparent that cosmopolitanism is the privilege of those who can take a secure nation-state for granted. Though we have passed into the post-imperial age, we have not moved a post-nationalist age, and I cannot see how we will ever do so. The cosmopolitan order of the great cities - London, Los Angeles, New York, Paris - depends critically on the rule-enforcing capacities of the nation-state ... In this sense, therefore, cosmopolitans like myself are not beyond the nation; and a cosmopolitan, post-nationalist spirit will always depend, in the end, on the capacity of nation-states to provide security and civility for their citizens. In that sense alone, I am a civic nationalist, someone who believes in the necessity of nations and in the duty of citizens to defend the capacity of nations to provide the security and the rights we all need in order to live cosmopolitan lives. At the very least, cosmopolitan disdain and astonishment at the ferocity with which people will fight to win a nation-state of their own is misplaced. They are, after all, fighting for a privilege cosmopolitans have long taken for granted.