In corporate finance class this morning, I took out votive candles and lit them as a shrine to St. Bernanke, as the Fed debated the rate cut. It eventually emerged with a .5 cut, more than the .25 that Wall Street had anticipated. I have grave doubts that this was such a great idea - but I'm quite certain it was the mystical force of the shrine that brought it about. Wall Street should send me a sizable check.
A small proposal. Why would it be a bad idea to enact a legislative ban on money from abroad to charitable institutions, including universities, think tanks, or on money to engage in lobbying by for profit institutions on K Street, that comes from countries, or from persons or entities in such countries, that engage in systematic religious discrimination as determined in State Department reports? What exactly is the interest in allowing a fantastically wealthy country like Saudi Arabia to buy itself a whole religious following, measured in everything from mosques to endowed university chairs, for the most viciously anti-American, anti-Christian, anti-Western form of Islam in the world, while, among other things, criminalizing Christianity within Saudi Arabia? The marketplace of ideas is not what this is about, as demonstrated by its utter lack of reciprocity. It seems to me a perfectly neutral principle on which to exclude foreign money which is creating vast damage in the United States.
I have been gratified but also slightly frightened by the overwhelmingly positive comments people have made when I mentioned a while back that I was thinking of organizing a meeting or some kind of conference on the idea of a national security court and a policy of civilianized administrative detention to replace the current military commissions arrangement. As far as I can tell, Jack Goldsmith and Neal Katyal's NYT op ed galvanized discussion on the idea, both for and against. It has been under discussion in several places for some time preceding that op ed - if you go back in this blog, I think I list some of the authors and articles, including Ben Wittes and me.
It has also raised discussion about why it would be a bad idea, with the primary objection being the question - largely raised by the rights advocacy groups and academics - why go that direction rather than the regular criminal justice system. Create more crimes to deal with terrorism - I think this is the current version of this view - primarily in the "inchoate" crimes area, versions of conspiracy, material support, etc., and it should be possible to obtain criminal convictions without having to go the route of a special court and scheme of administrative detention outside of "regular"criminal law.
Ben Wittes of the Brookings Institution and I indeed have a goal of organizing something on these topics. (Read Ben's Policy Review piece here.) We are hoping but - don't put this in your calendars yet, please! - to aim for a date in late January or early February in DC at my law school. It would be a one day event, morning into early afternoon, with a couple of panels. We have no money, so have no ability to offer travel etc. to anyone. If we offered it for CLE credit and opened it to the public, we might be able to come up with money for sandwiches for lunch. We would certainly hope to get Jack and Neal to participate and indeed lead off - they don't know about this idea yet, however.
We'll keep you posted on whether we are able to pull something together on this. It's certainly our intention to do so.
I have just finished Jack Goldsmith's very, very compelling new book, The Terror Presidency: Law and Judgment Inside the Bush Administration. More to follow on the book, but I strongly recommend Jack's podcast interview on the Glenn and Helen Show over at Instapundit, here.
I regard the book as must reading for anyone trying to understand the Bush administration and the war on terror; I think it will be one of the few "insider" books that will be around as a permanent record of the Bush administration. It is a deceptively easy read - Jack turns out to have a genuine talent for narrative and wears his immense legal erudition lightly - rare among law professors, and I include myself in that - but underlying the narrative is a strong analytic core that is not, as Glenn Reynolds points out, exactly what the media coverage of the book suggests.
I'm delighted to report that Dominik Zimmermann, of the Max Planck Institute, and some friends have created a new blog on international law, the International Law Observer. I've checked it out and find it informative and interesting. I'm adding it to my blog roll, and I encourage you to check it out. Here's a bit from Dominik's email describing it:
May I draw your attention to a new Weblog on international law, the International Law Observer:
A couple of weeks ago I created this Blog with some friends, who are all researchers in the fields of public international law or EU/EC-Law and active at various European universities or research institutions. It is our aspiration that this Blog will in some way promote the critical debate on up-to-date legal developments in international law, by reporting on recent developments in the academic field(s), informing on influential case-law of (inter-)national tribunals and courts and presenting international custom and important legislation by international organizations.
We hope that this Blog will contribute to the constructive exchange of ideas between scholars, practitioners and other active users and visitors of Legal-Weblogs. Moreover, the Blog attempts to function as a useful addition to the already existing line of Blogs on topical issues of international law. In order to enhance the interactivity between the pertinent Weblogs and to provide a complete as possible coverage of topical issues for the readers, we added a link to your Weblog in our link section. We would be very grateful if you would do the same.
Of course, comments and suggestions on our Weblog (design/shape as well as contents) are much appreciated.
By all means check it out, and a warm welcome to Dominik and friends to the blogosphere!
Brief note to myself. I am thinking about an article next year - ideally in conjunction with a sociologist or political scientist - on the intersection of two areas, legal regimes of counterterrorism and the psychology of Islamist radicalization. I have in mind, first, the literature on the psychology of radicalization - eg, the stages offered in the recent NYPD report - and a survey of the literature on how radicalization takes place. I draw, in my own background, on a (relatively obscure) journal with which I've had a long if loose affiliation, The Journal of Terrorism and Political Violence. That literature of (iterated) individual psychologies links up to a second body of literature on the spread of Islamist and jihadist ideology via social networks. But I would propose to carry that one step further, into the overlap these two have with a third body of literature on legal institutions and regimes of counterterrorism. The idea would be to assess the ways in which different legal regimes of counterterrorism create incentives or disincentives toward radicalization, reinforce or "deinforce" tendencies toward radicalization and jihadism.
One aspect of this is the effects of detention on tendencies toward radicalization - at Guantanamo or in Iraq. Many observers have noted that at least in some cases, the fact of imprisonment might well have contributed toward a greater radicalization while in detention. It is a well known phenomenon, after all, and it would be surprising if it did not take place under these circumstances. Human rights monitors and other observers hostile to the idea of preventive detention as such might have an incentive to exaggerate these effects, but it seems highly likely that it is a fact among some number of detainees in Guantanamo or Iraq. One question is whether, if one regards it as a sufficiently large issue - or, for that matter, if there is an intention at some point to release detainees - certain aspects of detention, apart from the very fact of detention, exacerbate or, alternatively, ameliorate the tendency to radicalization. Humiliation and other sources of long term resentment perhaps play a role here, and the fact that humiliation, for example, might well be an important part of some parts of interrogation, does not mean that its amelioration in later phases of detention, where the purpose is to seek to prepare for eventual release, might be also very important.
Or consider the issue of monetary compensation. I have suggested in various articles, but never really evaluated, that a regime of monetary compensation for detainees could have an important justice effect. In the case of someone who was unjustly detained for a substantial time - whatever those terms mean - where the government did not follow its own procedures in good faith, that's pretty obvious. But I have in mind instead compensation in cases in which the government did follow procedures, did act in good faith, but in retrospect turned out to have acted incorrectly. On the one hand, the government does not want to apologize for the program as such, because of its national security importance. On the other hand, an innocent person has been unjustly detained. In those circumstances, the best one can do is not apologize for the existence of the program, nor even necessarily for the detention as such. At the same time, it seems to me the government has an obligation to compensate the person very well. It seems to me critical, in that case, for reasons of both psychology and justice, that the government not be cheap. The person has been wronged and yet the government did not act wrongly. The government ought to make that person rich. Peculiarly, if the government had indeed acted wrongly, there is less need to make the person rich as opposed to well compensated, precisely because the payment is in part apology for wrong-doing. The government should pay more - this, I suggest has a certain intuitive sense both morally and psychologically - precisely because it is not apologizing. It is saying, instead, that its actions have unfortunately collateral effects, and the best it can do given two opposing mandates, is to pay very well.
It is a very delicate pas de deux, to convey precisely the correct sense of compensation without abasement, to make amends
that do not apologize for having acted as such. And I would also suggest that a portion of the money be paid out as an annuity, so that there is an unstated complicity between not undertaking jihad and continuing to get paid.
It is this kind of legal regime and the intersection with the psychology and sociology of radicalization that I partly have in mind. I also mean the examination of legal rules to see what incentives are created. Here, I am thinking of multiculturalism and what, in my view, are the very bad incentives created by its endless attention to sensitivity. The result is a constant raising of the bar of what has to be done to satisfy it - a demand regime that raises the bar of what sensitivity means higher and higher. Consider, for example, the extraordinary way in which the US government, or at least US neoconservatives, defined victory in Iraq - how many people danced in the street or threw flowers. It is an incentive merely to raise the bar higher and higher. Or the way in which the US military, in a quite misguided effort to be religiously sensitive, deprived detainees of Guantanamo of all identities - indeed, stimuli - other than a Koranic one. No television, no secular reading, nothing but ... the Koran, and an empty cell. It was simultaneously hypersensitive, but also, crucially, imperialist - for who was the US army to presume that its detainees were nothing more than vessels of jihadism?
The article I have in mind does not aim to be normative, not the first one at any rate. The more provocative possibilities I suggest above are not really what I have in mind for an initial paper. I am interested in the first cut at this not in normative formulations but instead at putting the three literatures on the table and seeing their intersections. This descriptive task, combined with a sort of incentives-disincentives type analysis, obviously familiar in the legal and social science literatures, is enough to get things started, I think. It is also something that a team effort could undertake without having to commit itself on normative issues in advance of getting a developed interdisciplinary account on the table.
(Ryan Goodman, Ryan Goodman, calling Ryan Goodman ... does this interest you?!)
I'm in Cleveland, at Case Western, for a meeting organized by the ICRC and the law school here on detention and counterterrorism policy. I'm delighted to be here - my goodness, Case Western is a beautiful campus, with lovely buildings old and new. The law school is in a handsome new building that just shouts, "Successful capital campaign!" It was nice of the ICRC to invite me to a meeting on a topic as important as this.
[A couple of paragraphs disappeared here, not sure why. I'll reconstruct them and repost them tomorrow. Weird.]
That's the substantive debate. The procedural debate is how to force Congress to take ownership of counterterrorism policy. As I've said repeatedly, it has no reason to do so, as long as the Addington Administration, if I can put it that way, persists in takng all the heat off it by insisting that Congress has no role. The administration bears all responsibility, Congress none, and Congress is therefore free to kibbitz and complain and snipe to its heart's content, knowing that it need make no affirmative decisions for which it, or the individual members, can be held responsible. It's a mad policy by the administration. I've been reading Jack Goldsmith's wonderful new book, The Terror Presidency, and it is clear that these issues, which people like me or Ben Wittes were writing about in the last couple of years, were central to Jack's thinking back when he was still at OLC - but he couldn't say anything. I heartily recommend Jack's book - it will be one of the few permanent volumes to come out of an insider in the Bush administration.
I also recommend highly Ben Wittes' Policy Review essay (I'll put the link in later) on the issue of finding the sensible middle ground in counterterrorism policy. It's a superb essay, the one most vividly to express the problem of those of us in the middle who worry both about the rule of law and protection of the United States - sitting, as Ben says, on the top of a hill with a slippery slope that runs in two directions - to a police state or to big bombs going off in American cities. The pure civil libertarians and human rights activists have decided that there's only one slippery slope to worry about; the pure national security types, in the Republic of Addington, have decided that there's also only one slippery slope to worry about, but it's not the same one as that of the civil libertarians. Then there are those of us, moral realists who hold to plural liberal values, who worry about them both.
That's the lay of the moral land, and the problem of finding one's way, not precisely to the middle ground, but to a ground that holds and respects both values simultaneously. That latter is not the same as finding middle ground; it is finding simultaneous ground.
(Update. Naturally, however, the support that Chemerinsky garnered among conservatives and libertarians who favored free expression even for those with whom they disagree was not matched in kind when it came to Larry Summers and his rescinded invitation to speak at the University of California. Perhaps I missed it in all the excitement, but where were liberals and progressives in support of Summers speaking at the UC in the face of progressivist disapproval? As always, one comes away from these encounters feeling played for a chump. Left liberal academics take conservative and libertarian support for liberal academic freedom as merely their due, and then operate on an entirely different principle when it comes to things the other way around. Volokh conspirator David Bernstein captures things accurately, here in the LA Times, via Instapundit:)
The Chemerinsky episode, disturbing though it was, should not distract us from the primary challenge facing academic freedom in American universities: the rise of an academic far-left establishment that seeks to use universities as a base for political activism, and is perfectly willing to violate accepted standards of academic freedom to achieve that goal. Anyone concerned with the future of American higher education has the duty to defend the values of scholarship and open debate against authoritarian political correctness. Unfortunately, by disinviting Summers, the UC regents failed miserably.
The only thing I'd disagree with in Bernstein's take is his description of the "rise" of this establishment - it has been the minor clergy in charge of the academy for at least a generation, and in fact the state of American higher education has been one of stultifying anti-intellectual debate for as long as I can remember. Students by and large understand it - many of them having understood that, and the necessary forms of hypocrisy it ordains if you want to get into college and beyond, since grade school. As one high school student remarked to me recently, people silly enough to get their politics from movie stars, musicians, or teachers deserve what they get. The students who tend to agree with the ideology in fact also understand it - because they welcome it and undertake higher education as a form of intellectual cocooning. There are, to be sure, many topics in the American academy in which a vigorous intellectual life is possible -they just don't happen to include most of the humanities, or wide swathes of law or the social sciences.
***
The law academy is abuzz with the recission of Erwin Chemerinsky's offer to become the inaugural dean of UC Irvine's new law school, on grounds that he is too politically controversial - a rare instance of being, in the academy, too liberal.
I guess I count as one of the rare conservative academics. I would count myself more as a moderate liberatarian, but moderate conservative is fine by me. In the real world, I fall just slightly right of center, but of course in the mad, mad world of the academy, that puts me somewhere between reactionary and fascist. I don't regard Chemerinsky as a radical - he is a strong left leaning liberal. There is not a lot on which I am likely to agree with him in politics, I imagine. But who knows and, frankly, who cares? So it is safe to say that I am defending him on principle when I say that it was a disgrace and a permanent stain on UC Irvine's new law school to rescind his offer. Those who made that decision were a group of small-minded twits, and if they did so thinking they were doing so in order to make conservatives like me happy, they should think again. I'll never think of the school without thinking sourly of this incident. As a proud graduate of the UC myself - undergraduate UCLA 1983 - well, this certainly makes me less proud.
I understand the point that an administrative position does not involve the same considerations concerning academic freedom as a regular professorship. And the lack of political and intellectual diversity in American law schools is a serious one, at least if you value the competition of ideas which, let's be honest, law professors taken as a group do not. I, for example, have high esteem for my faculty and colleagues, but nonetheless I live my intellectual life pretty much entirely outside my academic institution. (It is striking that intellectual diversity, and respect for ideas different from your own, tends to increase at some of the top ranking schools - Harvard, in particular - whereas mid-ranked law schools often tend to substitute political conformity for intellectual exchange; preferring the reproduction of a certain set of political ideas over the much more demanding task of debating them.)
But you don't address the bleak lack of intellectual diversity in American law schools by compounding the illiberal error of political quotas - and I've never heard any suggestion that Chemerinsky was not admirably liberal in his willingness to engage with ideas and views that were not his own. That is far from the norm for the academy as I know it, and it is that quality that would have made him a good dean, not the fact that he happened to be liberal or conservative. I am insulted that the UC would think that they were doing something for "people like me" in dumping Chemerinsky. I don't want a liberal for a dean, I don't want a conservative, I don't care about either one - I want someone who, whatever their individual views, is willing to create the conditions for honest debate over ideas across the political divides. This is just regular old classical liberalism, for chrisssake, what universities tell the world, parents, students, donors, that the university is about - even when it isn't - how hard can it be?
(Update. Pleased to see UCI came to its senses and renegotiated with him.)
From Powerline, here, and also remarked in the WSJ editorial of Saturday-Sunday, Sept. 9, 2007:
Der Spiegel has interesting information about the terror bust in Germany; as usual, however, you have to read between the lines:
"Three suspected Islamist militants who were planning to attack U.S. installations in Germany had orders to act by Sept. 15....According to surveillance details published in Der Spiegel magazine, the men had been given a two-week deadline for their planned strikes in a late August call from northern Pakistan that was monitored by German police."
So al Qaeda's top leaders were anxious to precipitate an attack on Americans by September 15. Why? That's the date on which General Petraeus will deliver his report to Congress. Al Qaeda, as always, was playing to the Democrats in Congress, the press, and the American people. Undoubtedly, similar orders have gone out to al Qaeda's agents in Iraq and around the world.
Note, too, how German authorities found out about the planned attack. They eavesdropped on a phone call from Pakistan to Germany. This is the exact equivalent of the NSA program that is ritually, but inaccurately, described in the press as "domestic spying." Most Democrats denounce the program as unconstitutional.
Further, it was the NSA program that brought the German terrorists to light:
"The arrests were the culmination of an investigation that began a year ago, when U.S. officials alerted German authorities to e-mails intercepted from Pakistan."
If the Democrats get their way, the NSA will not be able to use this tactic unless it has enough knowledge, enough days in advance, to get an order from a FISA judge.
... of marriage. Today is Jean-Marie's and my sixteenth wedding anniversary. They have been sixteen very happy years, spanning our days in New York City and Washington DC. One of these days - well, one of these anniversaries - I'll post something about our wedding day. But for now, let me just say thanks, as Jean-Marie and I do every year at this time, to Aryeh and Yvette Neier for their extraordinary generosity all those many years ago in offering their home in the Village for the wedding ceremony. They served as something like informal godparents in the whole process. Special thanks to Yvette, among so many, many things, for securing the judge to perform the ceremony and an announcement in the Times above the fold. Aryeh, for his part, performed the invaluable service of introducing Jean-Marie and me in the first place and, as I now observe in retrospect, it was no accident.
Steve Wasserman, who for years was the editor of the Los Angeles Times Book Review, has a fabulous cover essay in the Columbia Journalism Review, here, on the decline of book reviews in American newspapers. It is a superb essay, well worth reading.
I have a particular interest in book reviews - I like to write book reviews, have done so in various publications for many years, and take the whole enterprise seriously. Steve is one of a small handful of genuinely gifted and wonderful editors I have been privileged to work with - John Ryle at the TLS, Tod Lindberg at Policy Review, Scott Malcomson at the NYT magazine, Luis Gago as editor and translator at the Madrid Revista de Libros, and a number of editors in various departments at the TLS under Ferdinand Mount and Peter Stothard over the years being the others - and the LA Times Book Review was an amazing thing under his leadership. I'll have more to say about this when I am slightly less pressed; I wrote about book reviews here on this blog a while back. But read Steve's article.
***
ps. Rereading with amusement Steve's account of the LAT editor's response to Steve prominently publishing a review of a new translation of The Charterhouse of Parma - "Stendhal, Steve? More dead, white European males?" or his decision to publish Octavio Paz on Sor Juana ... there are not a lot of book review editors at major newspapers, even when they existed, who would have the chutzpah to run a special section on ... dead classics - in translation. My own contribution to that was a major piece on the infamous Story of O. Here. Later, I wrote Steve a major review essay on pedagogies of reading, which was a very brave piece for someone, like Steve, who is a man of the left, and who was crossing a very large number of committed progressives by running a piece like that, like stepping into a minefield called "no child left behind" - true, the mayor of Los Angeles loved it and called me to say so, so did the state superintendent of schools, and so did the most important empirically based researcher in reading pedagogy in the United States (at NIH in Bethesda); Steve, however, got lots of hate mail for that one. Here.
And somewhere in there, Steve asked me to review a book about Mormonism - my childhood, long lapsed religion - in view of wanting to be fair, objective, not someone with an agenda one way or the other but an understanding of the religion and the culture - but knowing that his editor and publisher were both practicing Mormons and quite sensitive on the subject: not a moment, in other words, for the (very great) Christopher Hitchens. I think I did a fine job in that instance, thank you very much, something that was both personal and analytic. But Steve gave very shrewd editorial advice in shaping that piece to balance the personal parts and the parts that went to the whole culture and the book, advice that allowed that piece to work. Here.
So when I say that Steve is one of the great editors in America, I mean it, and that he knows in his CJR essay whereof he speaks.
... grilled and then finished with peaches and prunes roasted whole on the grill, the fruit then simmered in Cointreau, walnut oil, balsamic vinegar, orange juice, cinammon, chipotle, nutmeg, a little cacao, and a lot of vanilla, finally stirred over the pork. Jean-Marie fixed a corn, pepper, tomato salad, plus rice and home-made red beans. Dessert, an almond cake with fruit and whipped cream. Tod was out of town taking his daughter to a soccer tournament in North Carolina, but Tina and Molly came over, and our neighbors Mark and Dorothy. (ps Tod and Abbey made it after all, hooray.)
(Okay, this is essentially the same recipe that we served for dinner last Tuesday night, when we had a little party for Scott M., down from NYC, and Larry S., just arrived from Illinois. At that party, though, I also grilled wild salmon with herb de provence and fresh dill and cilantro; and made mashed potatoes to die for, literally, given the amount of butter and cream and garlic in olive oil and grilled roasted whole tomatoes chopped into the potatoes.)
As we go marching, marching, in the beauty of the day,
A million darkened kitchens, a thousand mill lofts gray,
Are touched with all the radiance that a sudden sun discloses,
For the people hear us singing: Bread and Roses! Bread and Roses!
As we go marching, marching, we battle too for men,
For they are women's children, and we mother them again.
Our lives shall not be sweated from birth until life closes;
Hearts starve as well as bodies; give us bread, but give us roses.
As we go marching, marching, unnumbered women dead
Go crying through our singing their ancient call for bread.
Small art and love and beauty their drudging spirits knew.
Yes, it is bread we fight for, but we fight for roses too.
As we go marching, marching, we bring the greater days,
The rising of the women means the rising of the race.
No more the drudge and idler, ten that toil where one reposes,
But a sharing of life's glories: Bread and roses, bread and roses.
Our lives shall not be sweated from birth until life closes;
Hearts starve as well as bodies; bread and roses, bread and roses.
***
Happy labor day, on a beautiful weekend in Washington DC.
Not being a man of the left is no handicap in celebrating the achievements of the labor movement in the United States. Indeed, being a neo-con in the special meaning of someone who has moved from the left to the center-right, I know and worry very little about the canonical figures of the right, and know lots about the left, including the labor movement.
So - thanks to the folks who brought us the weekend, fought for health and safety and the end of child labor, gained the wages that allowed my forebears to join the middle class and its descendents like me to become moderately conservative intellectuals and professionals and, in the United States at least, opposed totalitarian communism in the name of trade union liberalism. If I lived in the world of a hundred years ago, locked out by birth and class, and race and sex, from the job I have today as a law professor, I would hope that I would be a militant trade unionist, singing the Internationale, urging the class struggle, and all that.
True, I don't think trade unions, militant or otherwise, are very relevant to working conditions and class in the US today - in a middle class, service economy, direct regulation is preferable - but the very possibility of that has come about because of trade unionism. And for that matter, even when I think, on balance, that some labor demand is a bad idea - usually because it is too expensive and is unsustainable - people like me of the comfortable upper middle class need to bear in mind that we would have thought the same thing of the laborer 150 years ago who demanded an end to hand-chopping mill machines, or social insurance for workers, or a mere sixty hour week, or any of the other things that we all take for granted today. It might indeed be too expensive and a reach beyond current resources - but that does not mean that the question is not worth asking, or the demand not worth making, if only to test the shifting limits of the possible.
(I should also add that the WSJ's opinion page piece a couple of days ago attacking the labor movement for its historical racism (Paul Moreno, Affirmative Action's Labor Roots, here) was gratuitously churlish on Labor Day weekend. When venues like the NYT decide to fill the op-ed page with anti-americanism just in time for July 4, the WSJ editorial page correctly takes it badly. It is not less offensive to trash the labor movement on labor day. The history of trade union racism is real, obviously, and Moreno's book an interesting one. But so too have been the achievements of the labor movement, and it is unworthy of the WSJ to treat it that way on labor day weekend. Shame.)
Okay, admit it, people, you like the Delilah song, even if you're not about to start wearing a "I am Delilah" T-shirt. And even though you are probably wondering (as I did listening to the five 14 year old girls in the car sing along at the top of their lungs) if the issue of the song isn't, as it says, "Oh, it's what you do to me," and instead what, given that she's a "thousasnd miles away,' what she isn't doing to him. Clearly I have given this too much thought, but the dang thing is a cute melody and I can't get it out of my head.
(ps. I've been reading Daniel Leviton, in his Your Brain on Music, about the process by which these snippets of songs get locked in your head. Usually a fifteen to twenty second clip of a song which is typically easily singable even by a person who is not especially musical. It seems to get locked on a repeating loop. This is precisely what happened to me with the endlessly chirpy chorus of the Delilah song for a couple of days. With me, one loop often replaces another, and in this case, it was replaced by chunk of the Rolling Stones' She's So Cold. Go figure.)
The AP has a story today on the holding by a US district court judge that former Panamanian dictator Manuel Noriega can be extradited to France to face charges there. Here. The judge, senior judge William Hoeveler, was also the judge who originally presided in Noriega's trial in Miami back after Noriega's capture following the US invasion of Panama; Noriega was convicted in 1992.
As it happens, I was monitoring Panama for Human Rights Watch at the time of the invasion, and went there with then Americas Watch director Juan Mendez; we produced a long report on the laws of war in the invasion and aftermath. Later on I wrote Human Rights Watch's amicus brief in the Noriega trial, submitted to Judge Hoeveler; we argued that Noriega was entitled to POW status, as I recall. The US government, which had originally taken the position that he would be entitled to POW status, changed its mind and submitted a new letter from DOS saying that he was not entitled to POW protection as head of state, despite his uniformed status and rank.
Judge Hoeveler issued a ruling - I do not have it in front of me, so it is possible I misrecall precisely how it came out, but as I recall it - in which he took the position that, as a District Court judge, he believed that on the merits Noriega was entitled to POW protection, but that as a matter of the court's jurisdiction, he lacked the power to make the government follow that order. In the event, the US government agreed in negotiations that it would treat Noriega as though he were a POW, with respect to the conditions of his confinement, without conceding that it had to treat him that way as a matter of either international or domestic law, and without conceding anything concerning other aspects of his treatment, including extradition. There was a sense, again as I recall, that the basis of Judge Hoeveler's legal ruling did not need to be tested by either side, in either direction, given the government's positition. And there it rested.
Now, Judge Hoeveler has ruled that his original ruling was not intended to allow claims of POW status to act as a shield against trial for serious crimes, whether in the US or elsewhere. If you go back to the original judgment - which took very serious account of HRW's amicus brief - I believe the judge is correctly stating his own original position. Whether it was entirely legally consistent or not, the original judgment was plainly seeking to accommodate concerns over POW status while not allowing that to be used as a means of avoiding a trial in regular US courts. (Part of this was motivated by the fact, however, that Noriega's lawyers at the time were very worried that Judge Hoeveler might actually push them into a military court martial, in which under the UCMJ, Noriega might fare worse rather than better than in a US district court trial - they wanted POW benefits for terms of confinement, but not the risk of a military trial.)
Hence Judge Hoeveler, as I understand the record then and now, has not changed his mind at all, but is accurately stating the position he took in 1991; it may not be a position entirely consistent with either domestic law or international law, having split the difference in various ways, but what he says to do is consistent with what he said then. Nor does it represent a change of position on the part of the USG which, so far as I understood in both the Bush I and Clinton administrations, viewed arrangements as an accommodation by the US, not a requirement of international law, and limited to the conditions of confinement and not further.
***
That said, I have changed my own view regarding head of state who happens to wear a uniform or who is by law the commander in chief. I do not believe, contrary to what I wrote in the HRW amicus brief, that there is an obligation to treat political leaders, who are as a matter of evident fact political leaders, as POWs simply because they happen to bear military rank. The US took a different position with respect to Saddam, and I think it was not legally required under GCIII, nor was it a wise precedent.
(Update, Saturday, August 25, 2007. Let me recommend the exchange of comments between Marty Lederman and Nathan Wagner - thoughtful, and capture the views at issue very well. Welcome, Marty and Nathan, and thanks for your thoughts.)
In response to a question someone put to me about civilianizing the current regime of detention and trial. One among the several reasons why I favor transition from a law of war framework for detention to a regime of a civilian national security court and preventive detention arrangement is that over the long term, terrorist risks to the United States seem to me likely to come increasingly from US citizens and dual nationals (a category that needs to be revisited on both principled and practical grounds).
Those are the people I would be seeking to recruit for terrorism over the long term. I would also be seeking to radicalize Muslim communities and especially youth within the United States - a process already well advanced in Britain - to provide a ground of both recruitment and concealment within the United States over the long term. I would be seeking to use Saudi money to do that - what, really, is CAIR except that? - and gradually to bring into the United States new Muslim populations with pre-existing resentments against the United States. As in Britain, universities in America are the natural secular havens for jihad (and ever more so as universities seek international tuition payments, dressed up in the high-falutin' names of 'global education', diversity, and multiculturalism: ideology suspiciously predictable as a function of the Boomers' baby boomlet passing its university years and universities scrambling to cover high fixed costs).
If terrorist risks to the United States over the long term become significantly more located among US citizens, dual nationals, and residents, and located within rather than without the United States, however, the situation becomes less and less amenable to the designation of enemy combatants and detention under a war-law rubric. As the Padilla case - taken as a whole saga, and not simply the guilty verdicts - shows, courts and, indeed, the public are highly unlikely to accept executive power as the vehicle and the law of war as the substantive law within the domestic United States for US citizens, at least over the long term. Indeed, as much a supporter of the war on terror as I am, I also think it would be legally and morally wrong to treat US citizens in this way. Legitimate emergency powers of the executive cannot be indefinitely extended; it starts to look way too much like Chile's endlessly renewed national security state under Pinochet.
There is moreover a strong civil liberties argument to be made here for why these terrorism cases should be separated from the rest of the criminal justice system. I asked one expert recently what he learned from Padilla, and he said, you must make everything indictable: conspiracy and material support for terrorism in everything but formal name co-incident with adherence to a group. Extend and dumb down the requirements in order to secure convictions. (And anyone who believes that this did not start out under the Clinton administration does not remember the terrorism legislation of 1996, among other things.) Those provisions inevitably bleed over to the rest of the criminal justice system - the Patriot Act, for example, sold to the public as specific to counterterrorism, applied to child pornography and drug crimes and what have you. We need, rather, to increase the civil liberties protections of the existing criminal justice system and (as the Duke case is far from alone in showing) rein in the out-of-control system of prosecutorial discretion. The problem with prosecutorial power in the United States is not the obviously illegal actions of Mike Nifong, but the existing unfettered but legal discretion in the hands of prosecutors nationwide.
But those reforms cannot happen if that same criminal justice system is the front line of defense against terrorism. If you are serious about counterterrorism, then the system will inevitably become even more prosecutor-friendly - to create what, for example, Spain has, effectively an informal preventive detention scheme dressed up as the discretion of the investigating magistrate. It will not be confined to matters of counterterrorism: it will gradually extend itself over the whole criminal justice system, as it is already doing.
If you also accept, as I do, not only these civil liberties arguments, but moreover that the conventional criminal law paradigm is grossly inadequate to prevent terrorist attacks, and not merely investigate them afterwards - I am sorry, but the Padilla conviction offers very little comfort in the matter of prevention - then you need some alternative. The best alternative, in my view, is to give up the war paradigm with respect to counterterrorism within the United States by its own nationals, and shift instead to a civilian national security system endorsed by both political branches of government, legislatively authorized, with a civilian national security court and powers of preventive detention.
Look, I don't want to get all sternly moralistic and ranty, but I can't say I understand the unsolicited email received a couple of weeks ago and which I just now read. It is an invitation for what it calls a "teach-in" on the topic of climate change, peak oil, and global resource depletion co-sponsored at George Washington University by the organizations listed in the email, all of which might well do interesting work (as indeed I personally know to be the case of first two) but none of which could be described as academic or scholarly in the sense of disinterested; they are all activist organizations. Which is fine - I see much virtue in scholar-activism, and do a lot of it myself - until I get to this statement in the email:
"In response to faculty demand, we are offering full scholarships to students whose professors require them to attend the Teach-In. In return, we simply ask students to volunteer one 2-4 hour shift during the weekend."
My goodness, is it really okay for professors to require students to attend an activist teach-in? Is there really "faculty demand" for this? And is it really okay to "ask" those same students to "volunteer" (?) a shift during the weekend?
The program sounds, in fact, very interesting and valuable. If you look at the full program, here, it has a dynamite line-up of speakers from around the world - I might attend myself and would certainly encourage students to do so. It's a great program - don't misunderstand the source of my question.
But looking over the speakers and the program, I am doubtful that it is a genuinely disinterested, scholarly endeavor that a professor could or should require students to attend, at least not by my own professorial ethics, although I am open to hearing other views on this. There appears to be pretty deep agreement among the participants on the fundamentals of things; it appears to be explicitly political and activist. It does, after all, call itself a teach-in.
This is great for certain kinds of conferences, teach-ins, etc., where the whole point of the meeting is to discuss things from a certain point of view, from a certain starting place of policy. For example, one of these days soon I hope to help put on a conference that debates the idea of a national security court - and the explicit organization of the conference would be a first part in which the whole idea, good or bad, is on the table - but a second session in which participants discuss what such an institution might look like, if one set aside or suspended disbelief about the fundamental desirability of such an institution. Yet I myself would be dubious about requiring students, even as part of a class on national security, to attend that second session. But perhaps others feel differently, and perhaps that is a different case because such a conference would have many speakers willing and given a space to debate the whole idea.
That does not appear to be the case of the GW teach-in. It appears to start from a pretty fixed political point. And perhaps I am overreacting to the term teach-in - although it is not my term, but the organizers, which does serve to put its own activist spin on things. In any case, I have serious doubts that one ought to be requiring students to attend a conference that starts out from so given a political or policy point of view, much less volunteering them for service in lieu of fees.
But perhaps I am just putting the worst spin on this and there is some ordinary explanation. I am also curious about the views of other professors on the ethics of requiring students to attend outside events that have a large activist component and a serious political and policy commitment that is not really open for discussion.
***
Email text of 8/13/2007:
Dear faculty friends,
Would you like to bring your entire class to the Teach-In this fall, but can’t ask students to pay an additional fee?
In response to faculty demand, we are offering full scholarships to students whose professors require them to attend the Teach-In. In return, we simply ask students to volunteer one 2-4 hour shift during the weekend.
Individual scholarships are also available to students and community members who would otherwise be unable to attend. Please download the scholarship application form at www.ifg.org
Please contact Janet Redman at janet@ips-dc.org or (202) 234-9382 x215 for information on class scholarships.
--------------------------------------
TO SEE MORE INFORMATION AND VIEW THE FULL SCHEDULE, CLICK THIS LINK http://www.ifg.org/
TEACH-IN: Confronting the Global Triple Crisis
Climate Change, Peak Oil & Global Resource Depletion
September 14-16, 2007
The George Washington University
Lisner Auditorium
730 21st Street, NW, Washington D.C.
Co-Hosted By:
International Forum on Globalization
Institute for Policy Studies
Global Project on Economic Transitions
George Washington University Progressive Student Union
So. The bad African warlord made his $200 million in blood diamonds and entrusted it for laundering to the international bad investment guy Le Chifre who, instead of putting it into safe investments, has lost it all gambling on uncovered options. Le Chifre hopes to win it all back in a high stakes poker game at the Casino Royale. Blood diamond warlord shows up in Le Chifre's hotel room and snarls, "Did you think you could lose that much money and no one would notice?"
A slogan for the credit crisis? From Casino Royale!
(And when the British government's financial representative, Vesper Lynd, refuses to authorize another 5 million for Bond to buy back into the game after Bond loses 10 million, he is staked by none other than the CIA's Felix Leiter ... thus putting the US government in the familiar position of ... Moral Hazard!)
(Update. It occurs to me that Moral Hazard would be a pretty good name for a Bond Girl.)
Duncan Hollis, over at Opinio Juris blog, here, has a very interesting, thoughtful, and informative discussion of the negotiations over the future of the European Union. (I wonder what my WCL colleague Fernanda Nicola - our EU-law star - thinks the EU future holds?)
Henry Kaufman has a superb piece on the opinion page of the Wall Street Journal today, August 15, 2007, on the fundamental causes of the credit crunch. Behind the subscriber wall, here, but highly, highly recommended. Henry Kaufman, "Our Risky New Financial Markets," WSJ, August 15, 2007, opinion page.
The blurring of the distinction over time between "liquidity" and "credit availability" is crucial, as is his point about the limitations of the quantitative financial models. I must say, as a corporate finance professor, parts of this look remarkably similar to the problems of Long Term Capital a decade ago - the quant manager saying that there had been three successive days which the models predicted would occur only once every 10,000 years, the belief that the models had successfully hedged whereas the price movements in actual markets indicated otherwise ... combined with, as Kaufman points out, the emergence of financial institutions that are regarded as too big to be allowed to fail (and, a very striking point, his assertion that this very fact is part of what drives consolidation in the financial services industry - as the smaller players face the necessity of being part of an operation too big to fail) and the attendant moral hazard ... the risks are there to be seen.
If, of course, the market will not be allowed to operate, then moral hazard can only be avoided by more stringent regulation, which Kaufman is skeptical will come about.
Some excerpts:
***
The principal structural driver behind this and similar financial tribulations is the massive growth of financial markets, combined with a plethora of new credit instruments. By any measure, current financial activity -- new financing or secondary market trading volume -- dwarfs the past. The outstanding volume of nonfinancial debt now exceeds nominal GDP by $15 trillion, compared with $6 trillion a decade ago. Traditional credit instruments such as stocks, bonds and money-market obligations have been joined by a long and diverse roster of new obligations, many of them extraordinarily complicated. Along with the arcane tranches of mortgages that recently garnered attention are a myriad of financial derivatives, ranging from those traded on exchanges to tailor-made products for the over-the-counter market.
Leading financial institutions have grown rapidly as well. More importantly, they have evolved to become integrated, diversified, global enterprises that bear little resemblance to traditional commercial banks, investment banks or insurance companies. As these giants grow and dominate the market, they carry enormous potential for conflicts of interest -- they simultaneously act as investors of their own massive assets and as dealmakers and consultants on behalf of their clients. And their reach into the financial system is so broad and deep that no central bank is willing to allow the collapse of one of these leviathans. They are deemed "too big to fail."
These structural and institutional changes have, in turn, encouraged a new understanding among market participants of liquidity. In the decades that followed World War II, liquidity was by and large an asset-based concept. For business corporations, it meant the size of cash and very liquid assets, the maturity of receivables, the turnover of inventory, and the relationship of these assets to total liabilities. For households, liquidity primarily meant the maturity of financial assets being held for contingencies along with funds that reliably would be available later in life. In contrast, firms and households today often blur the distinction between liquidity and credit availability. When thinking about liquid assets, present and future, it is now commonplace to think in terms of access to liabilities.
This new mindset has been abetted by the tidal wave of securitization -- the conversion of nonmarketable assets into marketable assets -- that swept across the financial world in recent decades. This flood of marketable assets not only has eroded traditional concepts of liquidity, it has stimulated risk appetites and fostered a belief that credit usually is available at reasonable prices.
***
These two developments -- securitization and the seamless interconnectivity of markets -- have brought intricate quantitative risk modeling to the forefront of financial practices. Securitization generates market prices, while information technology offers the power to quantify pricing and risk relationships. Few recognize, however, that such modeling assumes constancy in market fundamentals. This is because modeling does not adequately account for underlying structural changes when attempting to calculate future risks and prices.
Nor can models take into account the impact of growing financial concentration in the making of markets and in the pricing of securities that are traded infrequently, or that have tailor-made attributes. And what about the risks to financial markets of a major military flare-up, the ravages of a pandemic flu, a terrorist attack that would immobilize computer networks, or even shifts in the broader monetary environment? Do the models quantify these and other profound risks in any meaningful way?
Then there is the question of asset pricing. An essential component of successful risk modeling is accurate pricing of the securities used in the analysis. Here, again, the strictly quantitative approach shows its weaknesses. Accurate pricing is a thorny challenge. In rapidly moving markets, the price of the last trade may be invalid for the next one. The price a dealer is prepared to quote may be no more than an indication of a potential trade. And the price quoted may be valid only for a small quantity of assets, not for the full amount in the investor's portfolio.
***
At the heart of the long-term underlying challenges that face the U.S. financial system is the question of how to enforce discipline. One way is to let competitive forces discipline market participants: The manager who performs well prospers, while those who do not fail. This is the central precept of free market economies. But this approach is compromised by the fact that advanced societies typically do not allow the process to follow through when it comes to very large financial institutions. The fear is that the failure of behemoth financial institutions will pose systemic risks both here and abroad.
Therefore, market discipline falls more heavily on smaller institutions, which in turn motivates them to merge into larger entities protected by the too-big-to-fail umbrella. This dynamic has driven financial concentration and will continue to do so for years to come. As financial concentration increases, it will undermine marketability, trading activity and effective allocation of financial resources. (Ital. added KA)
If competition is not allowed to enforce market discipline, the most viable alternative is increased supervision over financial institutions and markets. In today's markets, there is hardly a clarion call for such measures. On the contrary, the markets oppose it, and politicians voice little if any support. For their part, central bankers do not possess a clear vision of how to proceed toward more effective financial supervision. Their current, circumspect approach seems objectively technical, whereas greater intervention, they fear, would seem intrusive, subjective, even excessive.
What is missing today is a comprehensive framework that pulls together financial-market behavior and economic behavior. The study of economics and finance has become highly specialized and compartmentalized within the academic community. This is, of course, another reflection of the increasingly specialized demands of our complex civilization. Regrettably, today's economics and finance professions have produced no minds with the analytical reach of Adam Smith, John Maynard Keynes or Milton Friedman.
I discovered Rufus Cappadocia, a Canadian born jazz cellist, a while back cruising through YouTube videos on electric and jazz cello. His techniques, range from percussive strumming and plucking to melody lines taken from the Middle East and elsewhere, extend the range of what the cello means very considerably. I'm listening now to Transformation, off his solo cello album, and it is extraordinary - you would have no idea you were listening to a cello. It sounds like he is strumming a bass guitar of some kind combined with some kind of drum. He plays a self designed five string electric cello, with an extra bottom string on the low F. The instrument is electric but, as he says, the electronics are passive in order not to lose the overtones lost by other electric cellos (including presumably my Yamaha). I also rather liked this YouTube video of him with vocalist Bethany - he plays entirely by plucking, making his cello into a percussive, driving instrument. Here on youtube. I don't know much about acoustic jazz upright bass, but watching him play, it looks an awful lot like he's studied how upright bass is played, how the right hand is used, very loose, almost slapping the strings.
In the current, long overdue discussions over self-esteemism gone amok, it is worth bearing in mind that narcissism is not self-love as such. Narcissus was fascinated with himself, and that fascination arose in part because it was himself. But, as Jackson Lears pointed out years ago in an obituary essay on the late Christopher Lasch, narcissism is more precisely not self-love, but rather than inability to distinguish between self and world.
I long ago gave up altogether on Freud, but there are still insights that resonate, and one is that narcissism, because it is an inability to distinguish between self and world, is an infantile and infantilizing condition. Because it is the condition of the infant to be unable to distinguish between fantasy and reality, between desire and world. The self esteem movement is infantilizing for exactly this reason; it erases the distinction between self and world and thrives on the confusion of the two.
But the real world intrudes, if only dimly, and produces this weird sense of fragility and mistrust and resentment of what authorities, starting with parents, tell you, because somewhere you sense that it can't be quite as easy as all that. I recall that the great philosopher of law and philosopher of literature and pyschoanlysis, Herbert Morris, for many decades at UCLA, and one of my great mentors, remarked to me that his favorite rock n roll song was "You Can't Always Get What You Want."
I wrote about this back in the mid-1990s, following Lasch's untimely death, here in the TLS, and here in the Columbia Law Review. I also wrote about it in a review of It Takes a Village, also in the TLS, and indirectly in a 2000 review essay in the Los Angeles Times Book Review on the pedagogy of reading, here, which caused great if brief consternation among private school parents in Los Angeles but got me congratulatory calls from the then mayor of Los Angeles and the then state superintendent of education in California. And much hate mail from the education schools. I touched a nerve in multiple directions.
But I think the most important article in the popular press today on this topic is this one from New York Magazine, widely noticed but no less important for it, here.
This exceedingly goofy thought arose out of listening to my daughter and her friend talk about where their names came from (grandmothers in each case). Well. If I had four daughters - and this is assuming that my wife had no say in the matter, meaning this is alternative universes, possible worlds stuff - I would name them:
Sarabande (Sara)
Chaconne (Chaca?)
Allemande (Allie)
Giga (Gigi)
Daughter and friend told me this was one of the worst child-naming schemes anyone on the whole planet had ever dreamed up. Quite possibly so. I'm going to take a break and practice the cello. It is almost 8:00 pm and still feels like a steambath outside in DC today. I couldn't even get myself to go to the gym, which was not good at all. Then I'll suggest to the girls and my wife that we watch something sort of scary ... the 1950s version of ... Village of the Damned.
(Update. Renee added later on ... and if you had a fifth girl, you'd probably want to name her ... Tarantella (Tara). Hmm ...)
(Update, August 25, 2007. I have pulled up Alan Kaufman's very thoughtful response from the comments into the full post, at the end, and I highly recommend it. Alan, thanks!)
Wesley Clark and UCLA international law professor Kal Raustiala have an op-ed in today's New York Times, August 8, 2007, on why terrorists should be treated as criminals, not combatants. International Law Reporter blog has it, here.
Well. Kal Raustiala is one of the brightest international law scholars around; I have enormous respect for him and it troubles me to have to disagree, but this piece does not move me. It sets up a false dichotomy between 'criminals' and 'combatants', and then argues that the Bush administration has treated terrorists as combatants whereas it should treat them as criminals. This is an argument that has been going on since approximately September 12, 2001 - it is more than a bit of a dinosaur, I would have thought - and it surprises me that anyone would still be wanting to have it in these terms. More to the point - you can argue for pretty much all of the reforms of the system that the op-ed calls for (some of the important ones of which I in fact support) without having to go back and make claims about the fundamental wrongness of the administration's legal judgments about the applicability of the laws of war.
The cutting edge of discussion about counterterrorism policy today is, for example, Jack Goldsmith and Neal Katyal's joint call for a national security court, or Benjamin Wittes' call to have Congress legislate a comprehensive system, or my call with Elisa Massimino to civilianize the system - that's where the discussion is at, so far as I can tell, and it is noteworthy for being fundamentally forward-looking, rather than backward-looking. It's not looking to score points about the past five years, but to try and figure out how to go forward now, under current conditions. There are plenty of profound, sharp, and even bitter disagreements about that, even among the people I have just named, but it is a good deal more concerned with a new administration that with the last one.
***
Combatants and criminals, a note.
The precise legal category for Al Qaeda terrorists is "unprivileged belligerent," by reason of the fact that the group of which they are a part - and note, under the Third Geneva Convention, it is the behavior of the group, not merely the individual, that determines status - systemtically violates the laws of war and so neither it nor its individual members qualify for the POW protections of the Third Geneva Convention. That does not mean these individuals do not have a status, nor does it mean they cannot also be criminals or suspected criminals; they have a status, which is unlawful combatant. A combatant is someone who takes active or direct part in hostilities, and an unlawful or unprivileged combatant is one who takes active or direct part in hostilities but has no legal right to do so, in the case of Al Qaeda by reason of its systematic violation of the laws of war.
The consequence is that Al Qaeda terrorists are both combatants and criminals. There are plenty of issues to debate here, but what is so hard about this? Why insist, against the accepted categories of the laws of war, that it is either/or, when in fact the answer can sometimes be both? (Although my views have shifted on whether we should continue to use a war paradigm as the legal touchstone since 9-11, my basic view on the distinction of "criminals" and "enemies," stated in this immediate post 9-11 article still holds.) Why should anyone accept the op-ed's claim that to treat terrorists as combatants somehow accords them honor as though soldiers? I am not aware of people very much thinking that these days - perhaps I am mistaken, who knows? - and it does not follow as soon as one accepts, as the law does, that there are combatants who are also criminal, criminal in the very nature of their combatancy, unlawful belligerents, but that they still somehow have some part of a soldier's honor because they are an unlawful combatant. It seems to me a false dichtomy leading to a straw man.
The reason, it appears from the rest of the op-ed, is that Clark and Raustiala are concerned about the wide powers available to the executive to determine that someone is an enemy combatant and unprivileged belligerent, on the executive's sole say-so, to hold the person however long it likes without legal recourse to the coursts, and on no charges or criminal trial or conviction. Yes, these are all enormous issues, partly of international law and partly of US domestic law. But addressing those questions does not require moving to the position that combatant and criminal are either/or. The op-ed's complaint might be said to be that the Bush administration seems to believe that the president having designated someone as an enemy combatant settles all legal questions - of course it doesn't, but overreaching does not render the distinction itself legally invalid. The vital constitutional and human rights question of whether, for example, a US citizen in some US city - perhaps part of an Al Qaeda sleeper cell or perhaps not - can be treated solely on the designation of the president as an enemy combatant has virtually nothing to do with the question of whether terrorists should be treated as combatants or criminals.
To be perfectly blunt, at every meeting I have attended since 2001 - perhaps half a dozen - in which Clark spoke about terrorism, he made his centerpiece this point that terrorists are not soldiers and we shouldn't treat them that way; he does not appear to have thought about it any further than that since then. Of course terrorists are not soldiers - meaning by that the armed forces of a state under the Third Geneva Convention. But they might well fall into the category of combatant, if they "take direct [or active] part in hostilities." The question then becomes, what kind of combatant - a legal combatant, or an illegal one, an unprivileged belligerent, under longstanding categories of the laws of war? And what are the legal consequences if the answer turns out to be"illegal combatant" or "unlawful belligerent"? That question is not answered by saying 'terrorists are not soldiers', not even close.
The USS Cole attack, raised an example in the op-ed as an example of the incoherency into which the designation of combatant leads us, indeed presents important questions about how terrorism is legally defined and about who and what is a terrorist, on the basis of the targets they attack. But these important questions are not the ones raised in the op-ed. The op-ed suggests - in my view a straw man argument - that because the administration characterized Al Qaeda members as combatants, and had the attackers limited themselves to the USS Cole attack, solely on a military target, and skipped - well, what? 9/11, the African embassy bombings, the 1993 WTC attack, and a long list more - then they would had to have been treated as legal combatants rather than criminals. The fundamental premise of this argument is from an alternative universe, and a distant one at that. Why on earth are we discussing this?
(UPDATE. I see that Bobby Chesney, over at National Security Advisers, here, has pointed out something that I should have made much more explicit below. I join 100% with Bobby's point:
Among other things, Clark and Raustiala contend that:
"Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon."
It seems to me that this particular argument is missing a critical point: attacks on military objectives are indeed permitted, but only when carried out by someone with the combatant's privilege. Insofar as al Qaeda members lack that privilege, their conduct in bombing the USS Cole remains an illegal act of mass murder rather than a lawful act of war regardless of whether the perpetrators are deemed to be subject to military detention in connection with armed conflict.
Bobby is quite right on this point. What I should say, in the discussion below, is that even if you do not meet the definition of being a terrorist under international law, that is not by itself enough to show that you are a lawful belligerent with the combatant's privilege. Being a lawful belligerent is more than merely not being a terrorist within some legal definition. It is a very, very important point and I thank Bobby for making it.)
***
The USS Cole attack and the definition of terrorism
But what of the USS Cole attack, in our world, with Al Qaeda is it actually is? There are, specifically, two real-world problems arising from the USS Cole attack and any claim that its perpetrators, under Bush administration standards, would have to be treated as legal combatants. The first is that Al Qaeda, under Third Geneva, article 4, flunks the legal combatancy test as an organization and therefore for its members and their operations. It is a status question for members of the organization, determined, under Third Geneva, by the conduct of the group. You don't get to do the African embassy bombings, and then claim that your attack against the Cole was legal and hence its perpetrators entitled to combatancy protections. That's simply not what article 4, Third Geneva, says. (Check to counterterrorism, UN, and laws of war tags on this blog for further discussion of the Cole problem and the definition of terrorism.)
Second, there is a problem with defining terrorism in the case of the Cole attack and it does raise problems for dealing with terrorism today. The problem is that there is, to this day, no accepted definition in international law. The point was brought dramatically home in the failure of the September 2005 UN reform summit of the General Assembly to achieve agreement on a definition of terrorism as urgently and congently called for by the Secretary General. Kofi Annan, in his preparatory document for the summit meeting, had offered a straightforward definition of terrorism that would be prohibited universally. He had thrown his full weight, his full authority, behind this - and yet it failed because the Islamic conference refused to countenance it. What did it call for? Drawing on the classic combatant/noncombatant distinction of the laws of war, it defined universally illegal terrorism to be attacks upon civilians (with some other language about seeking to coerce a government). The most elementary distinction in all the laws of war - thou shalt not make civilians the object of direct attack - could not manage to get passage in the UN as a definition of terrorism.
That said, however, it bears noting that even if that definition of terrorism had passed the General Assembly, even if it had been adopted in the universal treaty sought by Annan, it would not have solved the Cole issue. And it would not have solved the problem that Clark and Raustiala pin on the Bush administration's designation of terrorists as "combatants," albeit illegal ones.
Why not? Because the Cole attack was not an attack on civilians, but on a miltary target that, if the perpetrators were legal combatants, would be an exemplary military target, in part because of few issues of collateral damage. So, suppose that Bush designated terrorists as criminals under US law as the op-ed desires. Yet if you take international law seriously the way many international law professors tell us to, then you, as defense counsel for the Cole perpetrators, argue that you are at war with the Americans, even as a non-state actor, that there is no accepted definition of terrorist in international law, and that even the one proposed by the Secretary General would not criminalize your actions under international law. The question then becomes whether parochial American law can legitimately reach out to you to treat you as a criminal under a US long arm statute, in a way that international law does not, or whether it is an illegitimate, abusive exercise of American imperial power to treat you as a criminal. This is not a debate America would win in the General Assembly, and if you think it would be different under either Clinton or any Democrat, you have not been following the vicissitudes of the General Assembly.
Whereas by following the path that the Bush administration has trod, you can be treated, as a member of an organization that flunks legal combatancy requirements, as the Bush administration treats them - as both combatants and criminals, which, after all, under US domestic law, is what we actually think. They take "direct part" in hostilities but do so as part of a group that systematically violates the laws of war and hence does not qualify under Geneva Three. Any combatancy they undertake can be treated as illegal. Including that undertaken against targets that, if the attackers were legal combatants, would be legal targets. Why is this so crazy?
If the perpetrators genuinely were the alternative-universe pristine organization that only engaged against US miltary targets, and never targeted civilians, we would have another question - is US domestic law sufficient to criminalize behavior on a long arm basis that is not criminal under international law? The answer to that is almost certainly yes - we and other countries criminalize lots of behavior by long arm statute; the failure of international law to make something criminal does not preclude domestic law from acting. Our allies, and even states such as China and Russia, accept that domestic law can criminalize as terrorism activities that go beyond the proposed international law definition - if only from the self interest that states have, friends of ours or not, in ensuring that non state actor transnational attacks on military forces
can be treated as criminal acts. And this was the response that was given to me by most people I interviewed on the question of attacks on the USS Cole, or on British troops by the IRA, etc., by terrorist groups - the international law definition, even if codified in a treaty, would be treated as the minimum, not the maximum, of what constituted terrorism, and could be supplemented by domestic law.
***
Going forward counterterrorism
I support major alterations in the legal structure of counterterrorism. I have spoken to these issues on this blog and elsewhere (see counterterrorism tag), most recently in a short piece in the Fordham International Law Journal, here. What most puzzles me about the appearance of Clark and Raustiala's piece today is that it seems to think that in order to get where it wants to go in reforming counterterrorism policy, it must get there by trashing a longstanding legal concept - unlawful belligerency, illegal combatancy - in the laws of war, and frankly demonizing a Bush administration interpretation of that concept that is very far from implausible under the terms of the Third Geneva Convention.
One may disagree with the policy and the legal application, particularly about whether it should continue to serve as the basis for US policy today, years after 9-11. I agree with parts of what Clark and Raustiala call for in the way of reform of legal categories - I won't go into my agreements and disagreements, but I do think that we ought to move, in detainee treatment, towards a civilianization of the system, as Elisa Massimino and I wrote recently in a joint paper for the Stanley Foundation. What I don't understand - what doesn't make sense to me either as law or policy or, frankly, political strategy - is why they seem to insist that their reforms arise out of fundamentally wrong and egregious application of the laws of war by the Bush administration.
The Bush administration was not wicked or crazy in viewing counterterrorism as war. Nor, having reached that conclusion, was it wicked or crazy in thereby concluding - after having first concluded to thunderous and correct denunciation, note, that the laws of war were not the proper frame for the war on terrorism, and afterwards backtracking to the position that the laws of war did apply after all, as the human rights critics demanded - that it should apply the laws of war to the war on terror. It was not wicked or crazy in using the concept of illegal combatant and unprivileged belligerent, nor was it crazy or wicked in its interpretation of the technical (non)requirements of a hearing under the Third Geneva Convention, article 5, notwithstanding my own sharp disagreement as a matter of policy. (In general, I agree with John Bellinger's views of these controversies, captured partly by his recent June 2007 speech in The Hague, and debated thoroughly over at Opinio Juris in its special guest blogging forum.)
Why do Wesley Clark and Kal Raustiala insist on making an argument for reform and change that seems to rely on the presumed egregious badness of the administration's position on war and the application of war law? Why trash a fundamental concept of the laws of war that has a long history attached to it? Why isn't it enough just to say that as applied was a bad policy then and a worse one now, and that it is time to change it? I can understand that perhaps Clark wants to energize some constituency on the Democratic left and I understand that it plays well within the limited political frame of the New York Times. But within the larger political debate in this country, and within the legitimate and important desire to find ways usefully to reform counterterrorism policy, I cannot see that linking future reform to this analysis of the past helps very much at all. It simply hardens people in their preexisting positions.
(UPDATE. Thinking over this op ed again, it reads to me as though Clark had one thing to say, what he always says about soldiers and terrorists, while Raustiala had a quite different thing he wanted to say about new court decisions in counterterrorism cases and, as the op ed says, the increasing wariness of courts to accept at face value the categories asserted by the administration. I don't think the two agendas quite come together - I don't think it is plausible, if you take the counterterrorism decisions altogether, even on a trendline, to say that courts are concluding that they have to be treated as criminals and not as unlawful belligerents. In the end, we would be further ahead if the NYT had given Kal the space to say what he thinks in a more definitive fashion - as things are, the op-ed leaves things more confused than either one author would be separately. But that's what I would have said if I were the op-ed page editor, and what do I know?)
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Clark and Raustiala:
The line between soldier and civilian has long been central to the law of war. Today that line is being blurred in the struggle against transnational terrorists. Since 9/11 the Bush administration has sought to categorize members of Al Qaeda and other jihadists as "unlawful combatants" rather than treat them as criminals.
The federal courts are increasingly wary of this approach, and rightly so. In a stinging rebuke, this summer a federal appeals court in Richmond, Va., struck down the government’s indefinite detention of a civilian, Ali al-Marri, by the military. The case illustrates once again the pitfalls of our current approach.
Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers. Under the law of war, military service members receive several privileges. They are permitted to kill the enemy and are immune from prosecution for doing so. They must, however, carefully distinguish between combatant and civilian and ensure that harm to civilians is limited.
Critics have rightly pointed out that traditional categories of combatant and civilian are muddled in a struggle against terrorists. In a traditional war, combatants and civilians are relatively easy to distinguish. The 9/11 hijackers, by contrast, dressed in ordinary clothes and hid their weapons. They acted not as citizens of Saudi Arabia, an ally of America, but as members of Al Qaeda, a shadowy transnational network. And their prime targets were innocent civilians.
By treating such terrorists as combatants, however, we accord them a mark of respect and dignify their acts. And we undercut our own efforts against them in the process. Al Qaeda represents no state, nor does it carry out any of a state’s responsibilities for the welfare of its citizens. Labeling its members as combatants elevates its cause and gives Al Qaeda an undeserved status.
If we are to defeat terrorists across the globe, we must do everything possible to deny legitimacy to their aims and means, and gain legitimacy for ourselves. As a result, terrorism should be fought first with information exchanges and law enforcement, then with more effective domestic security measures. Only as a last resort should we call on the military and label such activities "war." The formula for defeating terrorism is well known and time-proven.
Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon. For all these reasons, the more appropriate designation for terrorists is not "unlawful combatant" but the one long used by the United States: criminal.
The second major problem with the approach of the Bush administration is that it endangers our political traditions and our commitment to liberty, and further damages
America’s legitimacy in the eyes of others. Almost 50 years ago, at the height of the cold war, the Supreme Court reaffirmed the "deeply rooted and ancient opposition in this country to the extension of military control over civilians."
A great danger in treating operatives for Al Qaeda as combatants is precisely that its members are not easily distinguished from the population at large. The government wields frightening power when it can designate who is, and who is not, subject to indefinite military detention. The Marri case turned on this issue. Mr. Marri is a legal resident of the United States and a citizen of Qatar; the government contends that he is a sleeper agent of Al Qaeda. For the last four years he has been held as an enemy combatant at the Navy brig in Charleston, S.C.
The federal court held that while the government can arrest and convict civilians, under current law the military cannot seize and detain Mr. Marri. Nor would it necessarily be constitutional to do so, even if Congress expressly authorized the military detention of civilians. At the core of the court’s reasoning is the belief that civilians and combatants are distinct. Had Ali al-Marri fought for an enemy nation, military detention would clearly be proper. But because he is accused of being a member of Al Qaeda, and is a citizen of a friendly nation, he should not be treated as a warrior.
Cases like this illustrate that in the years since 9/11, the Bush administration’s approach to terrorism has created more problems than it has solved. We need to recognize that terrorists, while dangerous, are more like modern-day pirates than warriors. They ought to be pursued, tried and convicted in the courts. At the extreme, yes, military force may be required. But the terrorists themselves are not "combatants." They are merely criminals, albeit criminals of an especially heinous type, and that label suggests the appropriate venue for dealing with the threats they pose.
We train our soldiers to respect the line between combatant and civilian. Our political leaders must also respect this distinction, lest we unwittingly endanger the values for which we are fighting, and further compromise our efforts to strengthen our security.
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Comment from Alan Kaufman:
Alan G. Kaufman said...
As I sent in response to Dave Glazier's post on 10 August on this issue over at National Security Advisors:
Dave has gotten at what, for me, has always been the central problem or paradox with the "war paradigm" for counter-terrorism operations, and that is this: The term "unlawful combatant," for me, is an oxymoron. To be a combatant is by definition lawful -- even honorable. It is a status, not an act.
Combatants have the privilege to kill, and commensurately, have lost their "right to life." Combatants in armed conflict may intentionally kill and be killed by other combatants.
Combatants sometimes behave unlawfully, in which case they may be tried for their crime, for example murder, for intentionally killing a noncombatant, or other war crimes, such as intentionally attacking protected sites.
But combatant is a status, which is by definition lawful. It is actions, not status that defines "lawful," or unlawful.
"The paradox with the terrorist as "unlawful combatant" model is that it deprives the terrorist of his right to life, while denying him the combatant's privilege to kill. Thus, like a combatant, the so called "unlawful combatant" terrorist may be targeted and killed on sight regardless of whether caught in the act. Like an enemy soldier, he may be lawfully killed in his sleep, or while driving in a car to a meeting. But should this "unlawful combatant" kill a lawful combatant at any time, even while that combatant is attacking his camp, we call it murder. He is not granted the combatant's privilege.
My problem with this result is that it merges the concepts of jus in bello with jus ad bellum. In that model, we do not hold combatants accountable at law for the decision of their state to go to war. We hold a combatant accountable only for his conduct in the war. Even if the declared war is an unlawful one, the combatant is not a criminal for killing other combatants in the prosecution of that unlawful war. His behavior is honorable, even if his state is not. He is a warrior, like the warrior on the opposing side. This has the benefit of maintaining a certain limit on what conduct is permissible in war -- even ones unlawfully or wrongfully begun (which are all of them, depending on which side you are on), by governing the conduct of those doing the fighting.The term "unlawful combatant," on the other hand, makes such a person accountable, not just for his conduct in war (jus in bello) but for the decision of his "state" to go to war. He becomes dishonorable and criminal not just for his behavior in the execution of the war, but for his very participation in it.
This is antithetical to the jus in bello/jus ad bellum construct and to the modern law of war as we have known it. Remove the constraint imposed by jus in bello, and behavior in war can escalate beyond "honorable" bounds very rapidly. It takes us into the dangerous realm of "the end justifies the means." This because it allows each side to say of the other -- they started this war unlawfully, so they do not deserve the benefit of the laws of war -- we can do to them what they may not do to us . . . . This escalates rapidly as each side justifes doing worse to the other . . .This is exactly the evil that the boundary between jus in bello and jus ad bellum seeks to inhibit. Why does this happen to us now?
Because terrorists - the kind we fight these days --do not act for a state. They act for a non-state organization that has declared war upon us. And because we do not consider this particular non-state organization to be a polity like a state --consisting of its citizens yet existing in law also independently of them (similar to the way a corporation is a person in the law, separate from its individual shareholders who are not (usually)individually liable for corporate crime), we hold each individual fighter accountable not just for his conduct in the fighting, but for the decision of the entity itself to go to war against us.
Thus, in this model, a terrorist can never be a combatant -- he can never have the combatant's privilege, because he is individually liable, unlike the true combabtant, for the decision of his entity to go to war. He can never fight with honor, as do true combatants, because he can never be separated from the unawful decision to even make war in the first place. So "unlawful combatant" is an oxymoron. It implies a jus in bello status and accountablility for a jus ad bellum action.And by creating this oxymoronic category of "unlawful combatant" we claim the privilege to kill him -- deny him a right to life -- while denying him a reciprocal combatant's privilege as against our own state combatants.
This is expedient, but is it honorable? And what does it say for maintaining limits on the conduct of war so that it doesn't escalate beyond all human control, to something that we never desired or anticipated (as Thucydides describes of the Peloponnesian wars, or as Lincoln comments on the American Civil War: "Neither party expected for the war, the magnitude or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself would cease. Each looked for an easier triumph, and a result less fundamental and astounding . . .The prayers of both could not be answered: that of neither has been answered fully. The Almighty has His own purposes" Or as Clausewitz put it: " . . .war, untrammeled by any conventional restraints, has broken loose in all its elemental fury.")
My own suggestion is that we ought to look at the counter piracy efforts of the 17th and early 18th century as a model for how to bring the force of war and a global effort against a dishonorable, non-state enemy. This is a model based in law enforcement, producing trial and punishment, using warships and honorable combatants to enforce the law . . . yet never for a moment conflating the enemy with a state . . .
