So Oona Hathaway and Scott Shapiro -- professors of international law at Yale University -- have an op-ed in today's New York Times in which they say... pretty much what you'd expect professors of international law to say about the prospect of an attack on Syria outside of U.N. auspices:
If the United States begins an attack without Security Council authorization, it will flout the most fundamental international rule of all — the prohibition on the use of military force, for anything but self-defense, in the absence of Security Council approval. This rule may be even more important to the world’s security — and America’s — than the ban on the use of chemical weapons....
Some argue that international law provides for a “responsibility to protect” that allows states to intervene during humanitarian disasters, without Security Council authorization. They point to NATO's 1999 intervention in Kosovo. But in 2009 the United Nations secretary general, Ban Ki-moon, rejected this view, finding that “the responsibility to protect does not alter, indeed it reinforces, the legal obligations of Member States to refrain from the use of force except in conformity with the Charter,” a position he affirmed on Tuesday. (The Independent International Commission on Kosovo found that the intervention was “illegal but legitimate.”)
Well... yes, but the New York Times write-up of Ban Ki-moon's statement contained a bit more ambiguity:
Asked if Mr. Obama’s proposal would be illegal under the United Nations Charter, Mr. Ban answered, “I have taken note of President Obama’s statement, and I appreciate efforts to have his future course of action based on the broad opinions of the American people, particularly Congress, and I hope this process will have good results.”
He did not specify what he meant by “good results.”
Mr. Ban also reiterated, “We should avoid further militarization of the conflict, revitalize the search for a political settlement.”
This is likely part and parcel of Ban being diplomatic towards a P-5 member who is contemplating action outside U.N. auspices, but it's not exactly a stern warning either.
Back to Hathaway and Shapiro. It's the part after this that I think suffers from a bit of, shall we say, monocausality:
Consider the world that preceded the United Nations. The basic rule of that system, one that lasted for centuries, was that states had just cause to go to war when legal rights had been violated. Spain tried to justify its conquest of the Americas by saying it was protecting indigenous civilians from atrocities committed by other indigenous peoples. The War of the Austrian Succession was fought over whether a woman had a right to inherit the throne. The United States largely justified the Mexican-American War, including the conquest of California and much of what is now the Southwest, by pointing to Mexico’s failure to pay old tort claims and outstanding debts.
The problem with the old system was not that no one could enforce the law, but that too many who wished to do so could. The result was almost constant war.
In the Kellogg-Briand Pact of 1928 and in the United Nations Charter of 1945, the world rejected this system. States were forbidden to enforce the law on their own and had to work through a system of collective security.
For all its obvious failings, the United Nations system has made for a more peaceful world than the one that preceded it. No leader may claim the right to collect debts or gain thrones by going to war. States may fracture into smaller pieces, but they don’t get conquered. Gunboat diplomacy is also out of the question.
OK, first of all, points to Hathaway and Shapiro: this might be the first positive mention of the Kellogg-Briand pact in an op-ed that I've ever read. I don't mean that in a snarky way, either -- I've honestly never seen that treaty talked about favorably.
More importantly, however, methinks Hathaway and Shapiro might be confusing correlation with causation here. It is certainly true that the United Nations has played an important role in making for a more peaceful world. So, however, has nuclear weapons and U.S. military hegemony -- and I say this as a skeptic of the latter's virtues. More provocatively, I'm not sure I buy Hathaway and Shapiro's assertion that the norms they praise are a function of international law or the United Nations Charter. Neither of these elements blocked the U.S. or U.S.S.R. from intervening willy-nilly during the Cold War.
I get what Hathaway and Shapiro are trying to do here, but if this intervention were to work, the outcome would likely be the same as Kosovo -- an "illegal but legitimate" verdict from history that would have minimal long-term implications. If the intervention is fated to fail, however... then it's a lose-lose proposition: international law has been weakened with no positive result.
What do you think?
UPDATE: Erik Voeten blogs along the same lines, but much more thoroughly and persuasively than I did here.
Your humble blogger will be attending a ridiculously well-timed conference on "The Internet and International Politics" for the next few days, so blogging here will be light.
Before departing, however, I do feel compelled (much like last week) to blog about Edward Snowden, his NSA revelations, the scorn heaped upon him by much of the foreign policy community, and the furious pushback by other quarters against that scorn. This time, however, I'm going to resist blogging about Snowden himself, since that A) distracts from the larger question of whether the NSA revelations are truly scandalous; and B) leads to some really bad psychoanalysis-cum-social commentary.
Thomas Friedman captures the sentiments of a lot of the foreign policy community with today's column. This passage in particular pretty much sums it up:
Yes, I worry about potential government abuse of privacy from a program designed to prevent another 9/11 — abuse that, so far, does not appear to have happened. But I worry even more about another 9/11. That is, I worry about something that’s already happened once — that was staggeringly costly — and that terrorists aspire to repeat.
I worry about that even more, not because I don’t care about civil liberties, but because what I cherish most about America is our open society, and I believe that if there is one more 9/11 — or worse, an attack involving nuclear material — it could lead to the end of the open society as we know it. If there were another 9/11, I fear that 99 percent of Americans would tell their members of Congress: “Do whatever you need to do to, privacy be damned, just make sure this does not happen again.”That is what I fear most.
That is why I’ll reluctantly, very reluctantly, trade off the government using data mining to look for suspicious patterns in phone numbers called and e-mail addresses — and then have to go to a judge to get a warrant to actually look at the content under guidelines set by Congress — to prevent a day where, out of fear, we give government a license to look at anyone, any e-mail, any phone call, anywhere, anytime.
You know what? Friedman's going to earn a lot of calumny for this column, but at least he's straightforward about his cost-benefit analysis. And it bears repeating that the revelations to date involve programs that have been signed off by the relevant branches of government.
That said, here's what I worry about:
1) Friedman allows that these surveillance programs are vulnerable to abuse but says that, "so far, [it] does not appear to have happened." Here's my question: how the f**k would Friedman know if abuse did occur? We're dealing with super-secret programs here. Exactly what investigative or oversight body would detect such abuse? What I worry about is that we have no idea whether national security bureaucracies abuse their privilege.
The last time I trusted intelligence bureaucracies and political leaders that the system was working was the run-up to the Iraq war. Never again.
2) The traditional ways to constrain government bureaucracies in a democracy -- transparency, legislative oversight and political control -- are weakened when we move to national security questions. The traditional way to compensate for this is to develop a strong organizational culture and powerful professional norms. This is one reason why, despite recent scandals, the military remains one government institution that still possesses the public trust.
I don't have deep insights into the organizational culture at Fort Meade, but I'd suggest that the norms there might not be as powerful as they are in the Pentagon. That might be due to the primary nature of their job, which is to keep information secret above all else. This is an organizational culture where the boss feels it within his prerogative to flat-out lie to Congress. So no, I really don't trust the NSA's organizational culture.
3) Based on what happened in the wake of the Boston bombings, I'd wager that Friedman's logic about public attitudes doesn't necessarily hold up. Indeed, public opinion polls showed greater concerns about civil liberties infringements. That's not a 9/11-level event -- if one of those happened, public opinion might very well shift in the way he predicts. Still, nearly twelve years after 9/11, Americans seem less "shockable" from terrorist actions.
There are valid policy grounds for some of the surveillance state, and I don't think I'm naïve about the threats against the United States. That said, a major personal legacy of 21st century American foreign policy f**k-ups is that I can't give these agencies or their political masters the benefit of the doubt. Threats have been overhyped and intelligence has been spectacularly wrong. Without much greater efforts by the intelligence community, the Obama administration, and Congress to restore trust in these institutions, that doubt will only grow.
The response is predictable: Don't be naive! Discussing secret national security programs will tip off the terrorists and make the United States vulnerable!
I don't buy it. There must be a way to shed a modicum of light on how far Presidents Bush and Obama stretched the Patriot Act. Surely, it's possible to start an open and honest conversation about drone warfare, domestic surveillance, and big data in general terms that don't expose cherished "sources and methods."
How do I know this? Because it's done all the time, usually when transparency suits a White House's political agenda. The Bush administration declassified (bad) intelligence about Iraq to sell the war to a skeptical public. The Obama White House opened intelligence files on the assassination of Osama bin Laden to promote the president's reelection bid.
And there is this Orwellian habit: Virtually every unauthorized leak, including the most recent ones about the prying eyes and ears at the National Security Agency, is followed by the release of classified information (an authorized leak) that supports the administration's case against leaks.
Most Americans want to give the president the benefit of the doubt on national security. They want to believe their elected representatives are fully briefed, as Obama dubiously claims, and committed to intensive oversight. They'd like the media to be a backstop against abuse.
But these institutions keep failing Americans. Why should we trust them?
I reluctantly agree. And if this gets me kicked out of the Respectable Foreign Policy Pundit Club, so be it.
Back in the day, when your humble blogger wasn't writing under the Foreign Policy masthead, a story so big would come across the transom that even if I didn't want to blog about it, I felt that I had no choice. To not blog about the Very Important Topic was to engage in some kind of willful denial.
Since moving to FP, I've been in the blissful position of bypassing the domestic politics story du jour because, well, it didn't have much to do with foreign policy.
Alas, I can't do that with these NSA stories coming out of the Guardian and the Washington Post -- and the multiple responses by the director of national intelligence. For the first time in a while, this is a story that I feel compelled to blog about. Go read Stewart Baker's take elsewhere at FP for a defense of the program. I confess to being somewhat more interested in the peripherals. So my reactions, with links:
1) Say what you will about these programs, they appear to be legal and politically legitimated. One of Jack Goldsmith's primary criticisms of the Bush administration's counterterrorism programs was that they were jury-rigged by an executive branch without the support of Congress or the courts. A sustainable counterterrorism policy requires the support of the political branches of government.
Say what you will about PRISM, but by all accounts Joshua Foust is correct:
While on its surface, this order — which authorized the secretive National Security Agency to collect data on phone calls placed by Verizon customers for a period of three months — seems blatantly illegal, the reality is that Congress has been enabling and legalizing such surveillance for years.…
Rather than challenging the administration’s authority to secretly interpret and enact laws, however, Congress instead twice authorized them to keep everything a secret. Last year, Ron Wyden, a Democrat on the Senate Intelligence Committee, tried to prohibit secret legal rulings. He got voted down. That same year Senator Jeff Merkley, also a Democrat, added his own amendment to the renewal of the 2008 wiretapping law. His amendment was voted down by a strong margin in both parties.
Similarly, Ezra Klein and Evan Soltas note this a.m.:
The administration’s response is that the program is legal and is overseen by both Congress and the courts. They also gesture towards, but don’t really identify, “numerous inaccuracies” in the reports.
If the reports of how these programs work are wrong then the reports are wrong. But if not, it’s true that these programs might well be legal under existing law. They might well have been subject to congressional oversight. That’s even scarier.
It speaks to a systemic acceptance of this kind of surveillance across the law and the Congress and the oversight courts. It means this is not the action of an overzealous NSA or even an overzealous administration but the consequences of a broad redefinition of the government’s domestic surveillance powers — one that has managed to stick across both the Bush and Obama administrations, and one that will thus be that much harder to uproot.
This explains the congressional reaction to yesterday's news stories, which overwhelmingly defended NSA activities.
Surely, now that this is public, however, this will change, right? I don't think so. If you dig into the latest New York Times/CBS poll, you find pretty robust support for President Barack Obama's counterterrorism policies. So you have a policy that the executive, legislative, and judicial branches have all signed off on, with support from the American people. That doesn't make the policy the right one -- but it does make it legitimate.
2) This is a bipartisan policy. In light of all these revelations, it's worth going back and reading Goldsmith's May 2009 essay in the New Republic on the Obama administration's continuities with the Bush administration's counterterrorism policies. Here's the section on surveillance in full:
In the summer of 2008, candidate Obama voted to put President Bush's unilateral warrantless wiretapping program, which he had opposed as an abuse of presidential power, on a legally more defensible statutory basis. Obama supported the bill even though it gave telecommunication firms that cooperated with President Bush immunity from lawsuits, a provision Obama disliked. In office, President Obama has not renounced or sought to narrow any of the surveillance powers used by the late Bush administration, and has not sought legislation to reverse the telecom's immunity. Nor has he yet acted to fulfill his campaign pledge to significantly strengthen the Privacy and Civil Liberties Board that oversees and protects civil liberties in intelligence gathering. The Obama surveillance program appears to be identical to the late Bush era program.
Looking through the rest of Goldsmith's article, I'd say that he was right and Dick Cheney was wrong in early 2009 about the Obama administration's counterterrorism policies. Whether this is an example of the power of institutional path dependence or not I'll leave to the commenters.
3) Why are the leaks springing now? As MSNBC's Chris Hayes tweeted last night:
I am as fascinated by the story *behind* these NSA leaks as the substance itself.
— Christopher Hayes (@chrislhayes) June 7, 2013
There's been a -- well, not a gusher, but let's say torrent -- of leaks coming out in recent days on U.S. surveillance programs. In the wake of scandals that emerged last month, and Bradley Manning's trial this month, this is very … interesting. I have no explanation for it, and I'm not implying anything either substantively or politically sinister. But I hope people smarter and more interested in this story than me will puzzle it out.
I've blogged on occasion about the development of a sovereigntist lobby that reflexively opposes all treaties because they erode U.S. sovereignty. For these people, any infringement on American sovereignty is a death blow to freedom, regardless of the benefits from joining. This kind of reflexive opposition has caused even stalwart groups on the right to cringe in embarrassment.
This hasn't slowed down the sovereigntists a bit, which led to a somewhat awkward day in the U.S. Senate:
Former Senator Bob Dole of Kansas sat slightly slumped in his wheelchair on the Senate floor on Tuesday, staring intently as Senator John Kerry gave his most impassioned speech all year, in defense of a United Nations treaty that would ban discrimination against people with disabilities.
Senators from both parties went to greet Mr. Dole, leaning in to hear his wispy reply, as he sat in support of the treaty, which would require that people with disabilities have the same general rights as those without disabilities. Several members took the unusual step of voting aye while seated at their desks, out of respect for Mr. Dole, 89, a Republican who was the majority leader.
Then, after Mr. Dole’s wife, Elizabeth, rolled him off the floor, Republicans quietly voted down the treaty that the ailing Mr. Dole, recently released from Walter Reed National Military Medical Center, so longed to see passed.
A majority of Republicans who voted against the treaty, which was modeled on the Americans With Disabilities Act, said they feared that it would infringe on American sovereignty.
The Cable's Josh Rogin has more on today's vote.
Now to be fair to the Republicans who voted "nay," you don't approve a treaty just because Bob Dole favors it. And to be more than fair, it's true that the United States has comparatively robust legislation in the form of the ADA and IDEA.
On the other hand, the point of this convention is to ensure that other countries start embracing the rules and standards codified by the U.S. Americans with Disabilities Act -- you'd think most Republicans would be super-keen on other countries embracing principles of U.S. law. Furthermore, the U.S. Chamber of Commerce also supports the treaty, and I hear that Republicans are pro-business, so that is a bit confusing. I also read that "the treaty was negotiated by the George W. Bush administration," so, again, you can understand my confusion.
If you want to see the arguments against the UN Convention on the Rights of People with Disabilities, click here, here, here, here, and here. As near as I can determine, critics don't like the treaty because... it's a treaty. Most of the objections are either bogus or unsubstantiated by practice. As Joshua Keating notes, "a perfectly reasonable treaty was just rejected based on a complete misreading of it."
The treaty’s critics, like the conservative Heritage Foundation, were left arguing that the treaty shouldn’t be ratified if the US already complied with its intent, since endorsing the treaty could lead to problems down the road by unspecified means. That dismayed the treaty’s advocates, who see the treaty’s value in the message it sends to other countries about the importance of protecting disabled people. “It’s a treaty to change the world to be more like America,” protested John Kerry, the Democratic Chairman of the Senate Foreign Relations Committee, before the failed vote.
Dana Milbank notes that sometimes the treaty's opponents contradicted their own arguments:
[O]pponents couldn’t agree on how this box would be opened. “Do I believe that states will pass laws or have to pass laws in conformity with the U.N. edict?” [Rick] Santorum asked himself. “Do we have to amend IDEA?” the Individuals with Disabilities Education Act. “I don’t have any fear anytime soon that IDEA will be amended. But I do have concerns that people will go to courts and they will use this standard in this convention.”
This was contradicted by the next man at the microphone, home-schooling advocate Mike Farris, who pointed out that the document has a provision stating that “you can’t go to court automatically. You must have implementing legislation first” — the very thing Santorum says he does not expect to happen.
Still, their spurious theory of a U.N. takeover of parenting was enough to lead Lee and Santorum to oppose a treaty that would extend American values worldwide and guarantee disabled people equal treatment, and freedom from torture and exploitation.
Now I'm honestly pretty dubious about whether U.S. ratification of the treaty would accomplish all that. Unlike Law of the Sea, not ratifying this treaty doesn't appreciably harm U.S. interests. It does, however, make the United States look pretty dysfunctional. In essence, the U.S. Senate just rejected a treaty on protecting the disabled that would have globalized the status quo in U.S. law on this issue. To use the parlance of international relations scholars, this is dumber than a bag of hammers.
Your humble blogger has been relatively
lazy circumspect in blogging about the Dominique Strauss-Kahn affair. The latest turn of events, however, has rousted me from my vacation torpor to ask just one simple question: are you friggin' kidding me??!!!
Both the New York Times and New York Post carry stories containing more prosecutor leaks than the Titanic suggesting that the woman DSK allegedly attacked was "a con artist." according to one blind quote. From the Times account:
Well, this is pretty simple -- if the prosecutors are leaking this stuff, then the charges are going to be dropped. Dominique Strauss-Kahn will be a free man, thereby re-convulsing the French political scene. I'm also expecting a super-fun flurry of discussion about the dangers of immigration from tis latest turn of events.
The story can't end here, however. Readers are therefore warmly encouraged to suggest how Act III of l'affaire-DSK will play itself out in the comments section.
Here's my suggestion: DSK and his wife Anne Sinclair will proft handsomely from a wrongful prosecution settlement with the city of New York. After that, they decamp to the island of Tahiti. At which point, Neve Campbell turns out not to be dead and, in league with Sinclair, eliminates DSK so they can enjoy their riches with the help of Bill Murray.
[Implausible, I say!!--ed. I say, not implausible enough!!!]
In Theories of International Politics and Zombies, I noted that "one can only speculate" what great power governments were doing to prepare for the contingency of an attack of the undead. One could argue that the absence of any mention of zombies in the Wikileaks cables suggests that no planning has taken place -- but one would assume that scenarios involving the undead would be classified as Top Secret or higher.
Courtesy of the New York Times' William Glaberson, however, we now know that the State of New York is thinking seriously about this problem:
Major disasters like terrorist attacks and mass epidemics raise confounding issues for rescuers, doctors and government officials. They also pose bewildering legal questions, including some that may be painful to consider, like how the courts would decide who gets life-saving medicine if there are more victims than supplies.
But courts, like fire departments and homicide detectives, exist in part for gruesome what-ifs. So this month, an official state legal manual was published in New York to serve as a guide for judges and lawyers who could face grim questions in another terrorist attack, a major radiological or chemical contamination or a widespread epidemic.
Quarantines. The closing of businesses. Mass evacuations. Warrantless searches of homes. The slaughter of infected animals and the seizing of property. When laws can be suspended and whether infectious people can be isolated against their will or subjected to mandatory treatment. It is all there, in dry legalese, in the manual, published by the state court system and the state bar association.
Uh-huh... this is for "radiological" or "chemical" contaminations. Ok. Right. Wake up and smell the rotting corpses of the undead, people!!!!!
Seriously, fhe foreword of the New York State Public Health Legal Manual (.pdf) opens with the following explanation/justification:
In today's world, we face many natural and man-made catastrophic threats, including the very real possibility of a global influenza outbreak or other public health emergency that could infect millions of people. While it is impossible to predict the timing or severity of the next public health emergency, our government has a responsibility to anticipate and prepare for such events. An important element of this planning process is advance coordination between public health authorities and our judicial and legal systems. The major actors in any public health crisis must understand the governing laws ahead of time, and must know what their respective legal roles and responsibilities are. What is the scope of the government's emergency and police powers? When may these be invoked, and by which officials? What are the rights of people who may be quarantined or isolated by government and public health officials?
These questions must be researched and answered now-not in the midst of an emergency-so that the responsible authorities have a readymade resource to help them make quick, effective decisions that protect the public interest.
Are planning documents like this useful? Yes and no. On the one hand, this kind of thing is a classic example of what Lee Clarke would refer to as a "fantasy document." In Mission Improbable: Using Fantasy Documents to Tame Disaster, Clarke argued that plans like these have little chance of success, because an actual crisis contains too much randomness to plan out in advance. They serve primarily as a way for the state to soothe the the public that Someone Is In Charge and will provide control, order, and stability. Similarly, Anthony Cordesman argued in October 2001 that pre-crisis government efforts to handle this kind of emergency are likely to disintegrate once the actual crisis emerges.
On the other hand, as many contributors argued in Avoiding Trivia, even if the plans themselves never work out, the effort to plan can be useful both for crisis and non-crisis situations. This kind of exercise forces bureaucrats and officials to think about what standard operatijngf procedures won't be so standard in a post-disaster environment. It also serves as a form of mental aerobics to prepare to the truly unknown unknowns.
So, on the one hand, kudos to the New York State legal community for thinking about these questions. On the other hand, I doubt that things will go according to plan. Plus, I'm really curious to hear whether they think habeas corpus applies to the living dead.
Thanks to alert historian friend S.L., it's worth noting that 220 years ago today, Moses Seixas, representing the Hebrew Congregation in Newport, Rhode Island, wrote on behalf of "the children of the stock of Abraham" to President George Washington, on the occasion of his visit to Rhode Island and Providence Plantations. In his reply, Washington wrote the following:
It is now no more that toleration is spoken of as if it was the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily, the government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
If you click through the link, you'll see that Washington echoed Seixas' language, reaffirming
that Jews have run the country since day one its eloquence.
It's a good thing this kind of sentiment is now accepted wisdom in America, otherwise we might be
having galactically stupid arguments about the subject mired in draining, no-win conversations about religion.
cliff1066™ / Flickr.com
Today's example is the New York Times story, "Attacks on Detainee Lawyers Split Conservatives." The lead:
A conservative advocacy organization in Washington, Keep America Safe, kicked up a storm last week when it released a video that questioned the loyalty of Justice Department lawyers who worked in the past on behalf of detained terrorism suspects.
But beyond the expected liberal outrage, the tactics of the group, which is run by Liz Cheney, the daughter of the former vice president, have also split the tightly knit world of conservative legal scholars. (emphasis added)
The story repeatedly argues that the conservative legal community is deeply divided on the issue. Now, I understand split as implying that members of this community are lining up on one side or the other. The thing is, I'm not seeing a lot of evidence that anyone in the conservative legal community is really lining up behind Keep America Safe. The Times story by John Schwartz has a quote by John Yoo that kinda sorta supports the ad, but it's really weak tea -- Yoo "said he had not seen the material from Ms. Cheney’s group," according to the story.
Then we get to this section:
A Keep America Safe spokesman responded to a request for comment by passing along links to essays by supporters like Marc A. Thiessen, a columnist for The Washington Post, who wrote on Monday that the detainees did not deserve the same level of representation as criminal defendants.
The lawyers, Mr. Thiessen wrote, “were not doing their constitutional duty to defend unpopular criminal defendants.” He said, “They were using the federal courts as a tool to undermine our military’s ability to keep dangerous enemy combatants off the battlefield in a time of war.”
Even if we expand our orbit to include other prominent conservatives, it seems pretty clear that beyond Thiessen, Bill Kristol, Michelle Malkin, and the Cheneys, there ain't a lotta conservative love for the attack ad. Over at The Cable, Josh Rogin tried to get a GOP Senator to endorse the ad and failed. I wouldn't characterize Glenn Greenwald as a defender of the right, but even he notes that, "only the hardest-core ideological dead-enders are defending them."
The more interesting way to frame this story would have been to show that professional norms do act as a serious constraint on political behavior. Schwartz quotes David B. Rivkin Jr., co-chairman of the Center for Law and Counterterrorism in exactly this fashion:
“I appreciate the partisan advantage to be gained here,” Mr. Rivkin said, but “it’s not the right way to proceed.” He said he preferred “principled ways for debating where this administration is wrong — there’s no reason to resort to ad hominem attacks.”
So, just to sum up -- the Times got to this story at least a day later than everyone else, and then used an inappropriate frame to describe the situation. There's no conservative legal split -- there's a pretty strong consensus that the Keep America Safe ad crossed the line.
Over at Duck of Minerva, Charli Carpenter has some interesting blog posts on recent trends in civilian casualties of interstate wars. These casualties are traditionally divided into two categories. The more prominent category is the intentional targeting of civilians by militaries -- what we now call "war crimes." The other category is the unintentional killing of civilians in the course of routine military operations -- what is often referred to as "collateral damage."
Carpenter is asking the question, "what percentage of total civilian deaths are 'collateral damage' and is this percentage trending up or down over time?" Her first, very preliminary cut at an answer -- remember, this is a blog post, not the American Political Science Review -- is rather surprising:
This analysis suggests that collateral damage rather than war crimes now constitute the majority of civilian deaths in international wars worldwide, and that the total number of collateral damage deaths is 20 times higher than at the turn of the last century.
The ratio of collateral damage victims to war crimes victims has dramatically increased since the end of the Cold War. According to Downes' dataset, between 1823 and 1900, unintentional deaths constituted 17% of all deaths in war. Since 1990, that number has risen to 59%....
In other words, the majority of civilian deaths since 1990s have not been war crimes but have been perfectly legal "accidental" killings. Of course this could partly be a result of a decrease in direct targeting of civilians over time, which would be a good thing.
But collateral damage is not only increasing as a percentage of all civilian deaths. The number of collateral damage victims is also increasing over time in absolute terms. Between 1823 and 1900, 84 civilians per year on average were the victims of collateral damage. Since 1990, the number is 1688 per year - a twenty-fold increase (emphases in original).
This finding, if it holds up, is surprising for two reasons. First, the number of interstate wars has been trending downward for the last thirty years -- so an increase in the absolute numbers of civilian collateral damage would not be expected. Second, this bump in collateral damage also took place during a revolution in precision-guided munitions -- which, in theory, was supposed to reduce the likelihood of collateral damage.
One could argue that the good news portion of this is that the intentional killing of civilians is trending downward. And I'd like the security studies readers to go over Carpenter's approach to see if it holds up.
Here are Tufts University Political Science Professor Dan Drezner and Stanford Philosophy Professor Joshua Cohen demonstrating how good-hearted, profoundly reasonable, oh-so-intellectually sophisticated Americans diligently struggle with -- torture themselves over -- what they have convinced themselves is the vexing question of whether our leaders should be considered "war criminals" by virtue of . . . . having committed unambiguous war crimes.... This is now the conventional wisdom, the settled consensus, of our political and media elites with regard to America's torture program. It's perfectly appropriate that Drezner cites and heaps praise on the self-consciously open-minded meditation on the torture question from The Atlantic's Ross Douthat because -- as I wrote in response to Douthat -- our political elites have now, virtually in unison, convinced themselves that ambiguity and understanding with regard to American war crimes are the hallmarks of both intellectual and moral superiority.... This is the justifying argument the political class has latched onto -- one that was spawned, revealingly enough, by Bush DOJ official Jack Goldsmith: sure, some of this might have been excessive and arguably wrong, but it was all done for the right reasons, by people who are good at heart. So common is this self-justifying American rationalization that it has now even infected the mentality of long-time Bush critics, such as The Los Angeles Times Editorial Page, which today argued that prosecutions for Bush officials are inappropriate, even though they clearly broke multiple laws, because "they did so as part of a post- 9/11 response to terrorism." As this excellent reply from Diane at Cab Drollery puts it: "civility and understanding is far more important to them than simple justice."Yes, because we all know that the exact administration of justice is best when it lacks understanding. This is certainly true of Greenwald, who appears not to have actually listened to what Cohen and I actually said to each other. I was pretty explicit about the following:
So there are logical reasons why lawyers might be getting the top foreign-policy posts. Are these substantively good reasons, however? As a professor with an interest in seeing his graduates thrive in the public sector, I think attending a public-policy school should send an even stronger signal. It should say that the person in question is well-trained and has the other traits necessary for a leadership position. Perhaps the next step should be to make the first year of a public-policy degree more like the first year of law school. After all, why should one-Ls have all the fun?[Cue Satanic cackle here!!--ed.]
If you are bright and are contemplating a potential career in American politics, you go to a top law school--not a public policy school. This does not seem to have changed much in recent decades despite everything [Harvard's Kennedy School of Government] has done to make itself visible and relevant.While I'm glad that the Fletcher School can claim at least one cabinet appointment, Rodrik raises an interesting question -- why do law school grads get the foreign policy jobs coveted by public policy school grads? I can think of a couple of reasons. The first is really simple -- if you're going to be writing laws, it helps to be a lawyer. The second reason is simple path dependence. The original gangsters of the foreign policy community were lawyers. The best way to get a top policymaking job is to made your mark by serving as a loyal deputy to past top policymakers. Since people are more likely to hire their own, it's not surprising that lawyers would hire other lawyers. The second reason is signaling. Follow this logic:
Of the first 15 cabinet and White House appointments announced by president-elect Barack Obama... three earned degrees from the nondescript buildings off the Strand that house the London School of Economics. The selections of Peter Orszag as budget director and Pete Rouse and Mona Sutphen to the senior White House staff means the LSE only has two less graduates than Harvard in team Obama. LSE currently has one more than traditional American powerhouse universities Princeton (Michelle Obama’s alma mater); Massachusetts Institute of Technology; and Michigan Law School. Mighty Yale can boast only one graduate, Gregory Craig, the next presidential legal counsel, though Hillary Clinton and James Steinberg will triple the score if they end up at the state department.
A seven-page questionnaire being sent by the office of President-elect Barack Obama to those seeking cabinet and other high-ranking posts may be the most extensive — some say invasive — application ever. The questionnaire includes 63 requests for personal and professional records, some covering applicants’ spouses and grown children as well, that are forcing job-seekers to rummage from basements to attics, in shoe boxes, diaries and computer archives to document both their achievements and missteps.Here's a link to the actual questionnaire. I think Question 10 would do me in:
Writings: Please list and, if readily available, provide a copy of each book, article, column, or publication (including but not limited to any posts or comments on blogs or other websites) you have authored, individually or with others. Please list all aliases or "handles" you have used to communicate on the Internet.This rules me out -- but I really pity the poor RA at Harvard tasked to answer this question for Cass Sunstein.
Based on this interview, it seems unlikely that Obama opposes constitutionalizing the redistributive agenda because he's an originalist, or otherwise endorses the Constitution as a "charter of negative liberties," though he explicitly recognizes that this is how the Constitution has been interpreted since the Founding. Rather, he seems to think that focusing on litigation distracts liberal activists from necessary political organizing, and that any radical victories they might manage to win from the courts would be unstable because those decisions wouldn't have public backing. The way to change judicial decisions, according to Obama, is to change the underlying political and social dynamics; changes in the law primarily follow changes in society, not vice versa. Again, he's channeling Rosenberg and Klarman. And this attitude on Obama's part shouldn't be surprising, given that he decided to go into politics rather than become a full-time University of Chicago constitutional law professor, as he was offered. Had he been committed to the idea that courts are at the forefront of social change, he would have been inclined to take a potentially very influential position at Chicago. (And judging from this interview, he would likely have been a great con law professor, both as a teacher and scholar, and, had he been so inclined, legal activist.) All that said, there is no doubt from the interview that he supports "redistributive change," a phrase he uses at approximately the 41.20 mark in a context that makes it clear that he is endorsing the redistribution of wealth by the government through the political process. What I don't understand is why this is surprising, or interesting enough to be headlining Drudge [UPDATE: Beyond the fact that Drudge's headline suggests, wrongly, that Obama states that the Supreme Court should have ordered the redistribution of income; as Orin says, his views on the subject, beyond that it was an error to promote this agenda in historical context, are unclear.]. At least since the passage of the first peacetime federal income tax law about 120 years ago, redistribution of wealth has been a (maybe the) primary item on the left populist/progressive/liberal agenda, and has been implicitly accepted to some extent by all but the most libertarian Republicans as well. Barack Obama is undoubtedly liberal, and his background is in political community organizing in poor communities. Is it supposed to be a great revelation that Obama would like to see wealth more "fairly" distributed than it is currently? It's true that most Americans, when asked by pollsters, think that it's emphatically not the government's job to redistribute wealth. But are people so stupid as to not recognize that when politicians talk about a "right to health care," or "equalizing educational opportunities," or "making the rich pay a fair share of taxes," or "ensuring that all Americans have the means to go to college," and so forth and so on, that they are advocating the redistribution of wealth? Is it okay for a politician to talk about the redistribution of wealth only so long as you don't actually use phrases such as "redistribution" or "spreading the wealth," in which case he suddenly becomes "socialist"? If so, then American political discourse, which I never thought to be especially elevated, is in even a worse state than I thought. (emphasis added)I'm general not keen on used the state to redistribute wealth simply in order to reduce income inequality. This is not an aspect of Obama's platform that fills me with warm fuzzies. To go from there to "SOCIALIST!! SOCIALIST!!" however, is just nuts. By this criteria, Milton "negative income tax" Friedman was also a socialist.
The world?s well established democracies are increasingly prepared to give credibility to authoritarian regimes, failing to probe how autocracies conduct flawed elections to bolster their international standing, a leading human rights body said on Thursday. In its annual survey of democracy across the world, Human Rights Watch argues that the US and the European Union are too quick to support ?sham democracies? in states like Pakistan, Egypt, Ethiopia and Kazakhstan, turning a blind eye to their abuse of underlying civil and political rights. ?In 2007, too many governments...acted as if simply holding a vote was enough to prove a nation ?democratic,? and Washington, Brussels and European capitals played along,? Human Rights watch said in its latest report.This is difficult to dispute. That said, Roth's introduction reveals an interesting tension between the human rights and democracy promotion agendas:
Part of the reason that dictators can hope to get away with such subterfuge is that, unlike human rights, ?democracy? has no legally established definition. The concept of democracy reflects the powerful vision that the best way to select a government and guide its course is to entrust ultimate authority to those who are subject to its rule. It is far from a perfect political system, with its risk of majoritarian indifference to minorities and its susceptibility to excessive influence by powerful elements, but as famously the ?least bad? form of government, in the words of Winston Churchill, it is an important part of the human rights ideal. Yet there is no International Convention on Democracy, no widely ratified treaty affirming how a government must behave to earn the democracy label. The meaning of democracy lies too much in the eye of the beholder. By contrast, international human rights law grants all citizens the right to ?take part in the conduct of public affairs, directly or through freely chosen representatives? and to ?vote? in ?genuine periodic elections? with ?universal and equal suffrage? and ?secret ballot? so as to ?guarantee the free expression of the will of the electors.? It also grants a range of related rights that should be seen as essential to democracy in any robust and meaningful form, including rights protecting a diverse and vigorous civil society and a free and vibrant press, rights defending the interests of minorities, and rights ensuring that government officials are subject to the rule of law. The specificity and legally binding nature of human rights are their great strength. But when autocrats manage to deflect criticism for violating these rights by pretending to be democrats, when they can enjoy the benefits of admission to the club of democracies without paying the admission fee of respect for basic rights, the global defense of human rights is put in jeopardy. Why bother complying with so intrusive a set of rules as international human rights law when, with a bit of maneuvering, any tyrant can pass himself off as a ?democrat??On the one hand, Roth is correct so far as the state of international law is concerned. On the other hand, it's far from clear that the clarity of human rights law has had appreciable effects on, you know, respect for human rights. Indeed, whether human rights treaties have had any effect on state behavior is a disputed point in both international relations and international law scholarship. Compared to the various waves (and smaller counterwaves) of democratization that have occurred in recent decades, however, the advancement of human rights looks like its lagging pretty badly. So I'm not sure that the codification of human rights law is the great advancement that Roth proclaims it to be.
New York City is on track to have fewer than 500 homicides this year, by far the lowest number in a 12-month period since reliable Police Department statistics became available in 1963. But within the city?s official crime statistics is a figure that may be even more striking: so far, with roughly half the killings analyzed, only 35 were found to be committed by strangers, a microscopic statistic in a city of more than 8.2 million. If that trend holds up, fewer than 100 homicide victims in New York City this year will have been strangers to their assailants. The vast majority died in disputes with friends or acquaintances, with rival drug gang members or ? to a far lesser degree ? with romantic partners, spouses, parents and others. The low number of killings by strangers belies the common imagery that New Yorkers are vulnerable to arbitrary attacks on the streets, or die in robberies that turn fatal. In the eyes of some criminologists, the police will be hard pressed to drive the killing rate much lower, since most killings occur now within the four walls of an apartment or the confines of close relationships.That last fact is too bad -- I was looking forward to the day when the combined number of homicides on Law & Order, Law & Order: Special Victims Unit, and Law & Order: Criminal Intent exceeded the actual number of homicides in the five boroughs. Hmmm.... come to think of it, most of these shows are set in Manhattan. I wonder if we hae reached the point when the annual number of homicides in that borough are less than the number of homicides that would be portrayed on television. Not just the L&O franchise, but also CSI: NY and the half-dozen other crime shows I'n sure are set in the city. Readers, go and check this out!
Nebraska State Senator Ernie Chambers has had enough of plagues, famines, droughts, hurricanes, and genocides. Chambers considers these incidents to be terrorists acts. To stop them, he's suing the person responsible for them?God. Chambers, who before becoming a state legislator was a barber, filed a lawsuit last Friday in Nebraska's Douglas County District Court, naming himself as the plaintiff and God as the defendant, a permanent injunction "ordering defendant to cease certain harmful activities and the making of terroristic threats."You can read the whole court filing by clicking here. Before the Voloh Conspiracy and Opinio Juris get a hold of this, I have to sday that my favorite bit is this: "Defendant has made and continues to make terroristic threats of grave harm to innumerable persons." Whoa there -- Chambers has concrete information about these new threats? After an allegation like that, if I was God's lawyer I'd advise him to
In Goldsmith?s view, the Bush administration went about answering [national security law] questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, ?go-it-alone? view of executive power. As Goldsmith sees it, this strategy has backfired. ?They embraced this vision,? he says, ?because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.?Let's have some Madlibs fun and insert some blanks into this paragraph:
In Goldsmith?s view, the Bush administration went about answering __noun__ questions in the wrong way. Instead of reaching out to __noun__ and __noun__ for support, which would have strengthened its __adjective__ hand, the administration asserted what Goldsmith considers an unnecessarily broad, ?go-it-alone? view of __noun__ . As Goldsmith sees it, this strategy has backfired. ?They embraced this vision,? he says, ?because they wanted to leave __noun__ stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand __noun__ have diminished it.?Discussion question: would it be safe to say that this applies to almost every Bush administration policy initiative?
I completely disagree with the Court?s ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that ?shit? and ?fuck? are fine to say on broadcast television during the hours when children are most likely to be in the audience. The court even says the Commission is ?divorced from reality.? It is the New York court, not the Commission, that is divorced from reality in concluding that the word ?fuck? does not invoke a sexual connotation.A few questions:
1) Did Martin write this himself or did people with actual training in press relations whip this statement up? 2) By the FCC's interpretation, is Martin is obnoxiously hitting on erveryone who reads his statement? 3) Am I obviously encouraging rape and bestiality when I say, "F#$% Kevin Martin and the horse he rode in on?" or could I have a different intent in mind? 4) As Adler asks, "Given the Second Circuit's ruling, could a network air Martin's remarks without fear of federal sanction?"
In a unanimous decision that is being hailed as the most important patent ruling in decades, the Supreme Court early this week swept aside the non-obviousness test used by the appeals court. In its place, a common-sense standard based on real-world conditions is to be applied to all patent applications that combine (as most do) elements of existing inventions. The case ruled on by the justices concerned an accelerator pedal developed by a Canadian company called KSR. The pedal could be adjusted for a driver?s height and used an electronic sensor, rather than a mechanical cable, to change the engine speed. Teleflex, a rival manufacturer, demanded royalties, claiming the device infringed one of its patents. KSR argued that Teleflex had combined existing elements in an obvious way, and that its patent was therefore invalid. A district court in Detroit agreed, but the decision was subsequently overturned by the appeals court in Washington, DC. Under the Supreme Court?s new definition of obviousness, Teleflex would have been lucky to get a patent for the pedal in the first place. The justices? opinion has been welcomed by the high-tech community. It is impossible to build a laptop, mobile phone or video recorder without infringing dozens of the thousands of patents that cover the various components involved. Computer firms have responded by engaging in a patents arms race and negotiating cross-licensing deals with everyone they expect will be involved. This is wasteful enough for the Intels, Microsofts and IBMs that can afford such profligate practices. But it can be life or death for smaller, innovative firms. When challenging incumbents? old-fashioned ways, upstarts like Vonage can find themselves forced out of the market by dubious patent litigation rather than actual competition. The Supreme Court?s ruling this week will make such anti-competitive practices harder to sustain. Vonage, for one, may be the first of many to seek legal redress from all the shoddy patents endorsed by America?s over-eager courts.
The White House suggested two years ago that the Justice Department fire all 93 U.S. attorneys, a proposal that eventually resulted in the dismissals of eight prosecutors last year, according to e-mails and internal documents that the administration will provide to Congress today. The dismissals took place after President Bush told Attorney General Alberto R. Gonzales in October that he had received complaints that some prosecutors had not energetically pursued voter-fraud investigations, according to a White House spokeswoman. Gonzales approved the idea of firing a smaller group of U.S. attorneys shortly after taking office in February 2005. The aide in charge of the dismissals -- his chief of staff, D. Kyle Sampson -- resigned yesterday, officials said, after acknowledging that he did not tell key Justice officials about the extent of his communications with the White House, leading them to provide incomplete information to Congress. Lawmakers requested the documents as part of an investigation into whether the firings were politically motivated. While it is unclear whether the documents, which were reviewed yesterday by The Washington Post, will answer Congress's questions, they show that the White House and other administration officials were more closely involved in the dismissals, and at a much earlier date, than they have previously acknowledged.
Opinio Juris is very pleased to announce that John Bellinger will be guest blogging with us for the week of January 15. As our readers well know, Bellinger is the State Department Legal Adviser, the top lawyer at the Department of State. In that capacity he is the principal adviser on all domestic and international law matters to the Department of State, the Foreign Service, and the diplomatic and consular posts abroad. Full details of his bio are available here. The format will be as follows. Bellinger will post six posts over the course of next week. The discussion will begin on Monday morning with an introduction to the Legal Adviser?s office, and then turn to substantive discussions of the treatment of detainees, international humanitarian law, and sovereign immunity.UPDATE: Another first for bloggers.
What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.... I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching.Both Barnett and Kerr observe how Hamdan highlights the Bush administration's strategic miscalculations on this issue. Barnett first:
It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror. First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run. Second: Not involving the American public directly in supporting the war.... The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy. Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost.Finally, Orin Kerr:
The combination of the Mayer article and the Hamdan case today brings up an interesting question: To what extent did lawyers in the Administration expect the courts ? and in particular, the Supreme Court ? to agree with the Addington view of the law? Did they think there were five votes in support of the Addington approach, or that the Court would stay away from the issues? Alternatively, did they figure that the first priority was to do what was needed to protect the country in the short term, and that it was better to push the envelope and have the Courts strike down their efforts than not to push at all?Talk amongst yourselves.... and play nice. UPDATE: Stephen Bainbridge ponders next steps for Congress.
"It is often not at all the situation that the president doesn't intend to enact the bill."Michelle Boardman, a deputy assistant attorney general, testifying before a Senate pane on presidential signing statementsl, as quoted in the New York Times. Getting rid of the double negative, and this translates into, "the president often intends to enact the bill." Not always, but often. Which is great, but I always thought that when Congress passes a law -- no matter how stupid that law might be -- the president is always supposed to implement it. UPDATE: Obviously, the president can veto a bill. Signing a bill and only partially implementing it, however, is another kettle of fish entirely. To be fair, let's see how Boardman expands on her comments:
Michelle Boardman, a deputy assistant attorney general, said the statements were "not an abuse of power." Rather, Ms. Boardman said, the president has the responsibility to make sure the Constitution is upheld. He uses signing statements, she argued, to "save" statutes from being found unconstitutional. And he reserves the right, she said, only to raise questions about a law "that could in some unknown future application" be declared unconstitutional.The problem with this line of reasoning is that the current president is operating under a theory of executive branch power that is way, way out of the mainstream. I'm not opposed to signing statements in principle -- indeed, they probably serve as useful guidance for executive branch agencies. However, quotes like the one above give me hives. ANOTHER UPDATE: Thanks to Appalled Moderate for adding more context to Broadman's comments. YET ANOTHER UPDATE: Orin Kerr puts his finger on the larger problem:
It seems to me that the Bush Administration?s approach to Article II powers has two features: (1) an unusually broad view of Article II powers and (2) a refusal to explain in detail the Administration?s broad view of Article II powers. Most criticism of the Administration?s approach has focused on (1). I?m no expert on these issues, but my sense is that, from a structural perspective, the real difficulty is the combination of (1) and (2).
One document, which is marked ?secret? but is not classified, is a twenty-two-page memo written by Mora. It shows that three years ago Mora tried to halt what he saw as a disastrous and unlawful policy of authorizing cruelty toward terror suspects. The memo is a chronological account, submitted on July 7, 2004, to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the U.S. detention facility at Guant?namo Bay, Cuba. It reveals that Mora?s criticisms of Administration policy were unequivocal, wide-ranging, and persistent. Well before the exposure of prisoner abuse in Iraq?s Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bush?s decision, in February, 2002, to circumvent the Geneva conventions, which prohibit both torture and ?outrages upon personal dignity, in particular humiliating and degrading treatment.? He argued that a refusal to outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to abuse. Mora also challenged the legal framework that the Bush Administration has constructed to justify an expansion of executive power, in matters ranging from interrogations to wiretapping. He described as ?unlawful,? ?dangerous,? and ?erroneous? novel legal theories granting the President the right to authorize abuse. Mora warned that these precepts could leave U.S. personnel open to criminal prosecution. In important ways, Mora?s memo is at odds with the official White House narrative.... Mora thinks that the media has focussed too narrowly on allegations of U.S.-sanctioned torture. As he sees it, the authorization of cruelty is equally pernicious. ?To my mind, there?s no moral or practical distinction,? he told me. ?If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America?even those designated as ?unlawful enemy combatants.? If you make this exception, the whole Constitution crumbles. It?s a transformative issue.?Second, the description of Mora sounds similar to the conservative DOJ lawyers who nevertheless resisted Bush's proposed policy changes:
Mora?whose status in the Pentagon was equivalent to that of a four-star general?is known for his professional discretion, and he has avoided the press. This winter, however, he agreed to confirm the authenticity and accuracy of the memo and to be interviewed.... Mora, a courtly and warm man, is a cautious, cerebral conservative who admired President Reagan and served in both the first and the second Bush Administrations as a political appointee. He strongly supported the Administration?s war on terror, including the invasion of Iraq, and he revered the Navy. He stressed that his only reason for commenting at all was his concern that the Administration was continuing to pursue a dangerous course. ?It?s my Administration, too,? he said.Third, the degree of duplicity going on just depresses the living hell out of me. Consider this section:
Without Mora?s knowledge, the Pentagon had pursued a secret detention policy. There was one version, enunciated in [Pentagon general counsel William] Haynes?s letter to [Senator Patrick] Leahy, aimed at critics. And there was another, giving the operations officers legal indemnity to engage in cruel interrogations, and, when the Commander-in-Chief deemed it necessary, in torture. Legal critics within the Administration had been allowed to think that they were engaged in a meaningful process; but their deliberations appeared to have been largely an academic exercise, or, worse, a charade. ?It seems that there was a two-track program here,? said Martin Lederman, a former lawyer with the Office of Legal Counsel, who is now a visiting professor at Georgetown. ?Otherwise, why would they share the final working-group report with [head of Southern Comabd General James] Hill and [Guant?namo commander General Geoffrey] Miller but not with the lawyers who were its ostensible authors??.... The senior Defense Department official defended as an act of necessary caution the decision not to inform Mora and other legal advisers of official policy. The interrogation techniques authorized in the signed report, he explained, were approved only for Guant?namo, and the Pentagon needed to prevent the practices from spreading to other battlefronts. ?If someone wants to criticize us for being too careful, I accept that criticism willingly, because we were doing what we could to limit the focus of that report . . . to Guant?namo,? the official said. In fact, techniques that had been approved for use at Guant?namo were quickly transferred elsewhere. Four months after General Miller was briefed on the working-group report, the Pentagon sent him to Iraq, to advise officials there on interrogating Iraqi detainees. Miller, who arrived with a group of Guant?namo interrogators, known as the Tiger Team, later supervised all U.S.-run prisons in Iraq, including Abu Ghraib. And legal advisers to General Ricardo Sanchez, the senior U.S. commander in Iraq at the time, used the report as a reference in determining the limits of their interrogation authority, according to a Pentagon report on Abu Ghraib. A lawyer involved in the working group said that the Pentagon?s contention that it couldn?t risk sharing the report with its authors ?doesn?t make any sense.? He explained, ?We?d seen everything already.? The real reason for their exclusion, he speculated, was to avoid dissent. ?It would have put them in a bind,? he said. ?And it would have created a paper trail.?UPDATE: Here's a link to Mora's memo (hat tip: Andrew Sullivan). ANOTHER UPDATE: I've met John Yoo several times at conferences, and each time I've found him an engaging individual with a lively mind. But I have to think he's engaging in wishful thinking in this response to a Foreignpolicy.com interview:
I would like to say that it is my understanding that the United States does not engage in torture, and that the reports of abuses that have occurred in Iraq or elsewhere appear to have been the result of individuals acting outside official policy. Abuses, while regrettable, sometimes happen in large organizations when individuals violate the rules.Link via Greg Djerejian.
Even in a White House known for its dedication to conservative philosophy, Addington is known as an ideologue, an adherent of an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president.... On the job, colleagues describe Addington as hard-edged and a bureaucratic infighter who frequently clashes with others, particularly the National Security Council's top lawyer, John Bellinger. Officials say disputes between Addington and Jack Goldsmith, head of the Justice Department's Office of Legal Counsel, led Goldsmith to resign after eight months in the job; Addington had sought to persuade OLC to take a more permissive line on torture. Still, even foes admire Addington's work ethic and frugality; he takes Metro from his home in Alexandria instead of using his White House parking space.I dredge this up because Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas have written a much fuller account (and some regretfully overripe language) of this tension within the administration for Newsweek (link via Orin Kerr):
James Comey, a lanky, 6-foot-8 former prosecutor who looks a little like Jimmy Stewart, resigned as deputy attorney general in the summer of 2005. The press and public hardly noticed. Comey's farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people who came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were the people committed to getting it right?and to doing the right thing?whatever the price. These people," said Comey, "know who they are. Some of them did pay a price for their commitment to right, but they wouldn't have it any other way." One of those people?a former assistant attorney general named Jack Goldsmith?was absent from the festivities and did not, for many months, hear Comey's grateful praise. In the summer of 2004, Goldsmith, 43, had left his post in George W. Bush's Washington to become a professor at Harvard Law School. Stocky, rumpled, genial, though possessing an enormous intellect, Goldsmith is known for his lack of pretense; he rarely talks about his time in government. In liberal Cambridge, Mass., he was at first snubbed in the community and mocked as an atrocity-abetting war criminal by his more knee-jerk colleagues. ICY WELCOME FOR NEW LAW PROF, headlined The Harvard Crimson. They had no idea. Goldsmith was actually the opposite of what his detractors imagined. For nine months, from October 2003 to June 2004, he had been the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers. Their insurrection, described to NEWSWEEK by current and former administration officials who did not wish to be identified discussing confidential deliberations, is one of the most significant and intriguing untold stories of the war on terror. These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril; ostracized, some were denied promotions, while others left for more comfortable climes in private law firms and academia. Some went so far as to line up private lawyers in 2004, anticipating that the president's eavesdropping program would draw scrutiny from Congress, if not prosecutors. These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men. The rebels were not whistle-blowers in the traditional sense. They did not want?indeed avoided?publicity. (Goldsmith confirmed public facts about himself but otherwise declined to comment. Comey also declined to comment.) They were not downtrodden career civil servants. Rather, they were conservative political appointees who had been friends and close colleagues of some of the true believers they were fighting against. They did not see the struggle in terms of black and white but in shades of gray?as painfully close calls with unavoidable pitfalls. They worried deeply about whether their principles might put Americans at home and abroad at risk. Their story has been obscured behind legalisms and the veil of secrecy over the White House. But it is a quietly dramatic profile in courage.Read the whole thing. I have nothing to add but this -- I've known Jack Goldsmith for many years from his time at the University of Chicago. If you think that Goldsmith is either a RINO or a squishy "must kowtow to all forms of international law" kind of guy, well, then you don't know Jack. The fact that Addington, Cheney, and by extension Bush managed to force out people like Goldsmith and Comey means that the legal consensus within the administration is way, way outside the legal mainstream. Oh, and one other thing: Henry Farrell is right. Those who criticized Goldsmith's appointment to Harvard Law School on ethical grounds (click here for one example) have a hell of a lot of crow to consume.
Google Inc. is refusing to obey a Justice Department demand that it release information about what people seek when they use the popular search engine, setting up a possible battle with broad implications for Internet privacy rights. The Justice Department asked a federal court this week to force Google to turn over a trove of information on how people use the Internet. A subpoena, first sought over the summer, seeks activity on Google's search engines for a single week, a request that Google says could lead to identifying millions of people and what they were looking at. The government, which says its request will not result in identifying individual computer users, wants to use the information to resurrect an online pornography law shot down last year by the U.S. Supreme Court. It wants to search Google queries to see how often users inadvertently run across sexual material. The Internet's rise has raised issues of whether users would be vulnerable to electronic eavesdropping of all kinds, but Google's stand represents the first big public face-off between the world's leading search engine and the government.... Yahoo, which has the second most popular Internet search engine, acknowledged Thursday it has complied with the government on a "limited basis." Other Internet search engines also appear to have complied with the request, said Chris Winfield, president of 10e20 LLC, a New York-based search engine marketing firm. "It looks like Google against everyone," he said.Oddly, Google has issued no official comment. [UPDATE: check out this San Jose Mercury News story, however.] I'm not competent to comment on the legality of the request, but the thing that struck me is that the DOJ is being unbelievably lazy. The DOJ wants to show that online searches lead to inadvertent stumbles into porn. It is true that the best way to show this would be to retrieve a sample of searches. However, almost as good would be for the DOJ to commission some social scientist to do the research for them. It would not be hard for a researcher to run an experiment to gather this kind of data, and the results would be just as useful to the Department of Justice. There's something else that disturbs me about this request. If Yahoo! and other search engines have already complied, then the DOJ doesn't really need Google's data. All of the search algorithms are pretty much identical -- which means that Justice already has a sufficiently large sample. Even if the differences are more important than I think, the companies cooperating with the DOJ already represent a larger combined market share than Google, so it's not clear that their cooperation is really necessary for the DOJ to make its evidentiary argument. So why continue to press Google? I see one of two possibilities:
1) The data they have doesn't support the administration's supposition, and they're hoping Google will bail them out; 2) They don't care about the data for this case as much as they do about establishing a legal precedent and/or intimidating Google into compliance.Readers are encouraged to try and diving what the DOJ is thinking. UPDATE: One other quick thought -- although I doubt they acted for these reasons, this is brilliant PR for Google. Their spectacular growth and ever-increasing range of activities had threatened to turn cultural perceptions against the firm. By resisting the Bush administration -- in contrast to Yahoo's capitulation -- Google will look very, very good to all the syberlibertarians oiut there.
Daniel W. Drezner is professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University.