Tuesday, July 31, 2007

A fond farewell to Teemu Ruskola

My dear friend and colleague, Teemu Ruskola, is departing WCL for Emory. We had a last coffee at the Starbuck's across the street from the law school yesterday, and I will greatly miss having him here. Emory is a wonderful opportunity for him, a wonderful opportunity for Emory and his new colleagues, but I will enormously miss our coffees here at WCL, where we discussed many things and I got a chance to understand just what a genuine intellectual, along with warm and funny friend, Teemu is. And so, to be perfectly, perfectly honest, somewhere back behind all my warm and fuzzy and adoring feelings, there is the slightest twinge that says ... treachery. No, wait, I didn't say that.

Honestly, though, and all joking aside, Teemu, you will be hugely missed by me and the rest of our faculty, and all best in Atlanta.

Dan Solove's annual law professor blog survey

Professor Solove has posted his informative annual survey of law professor blogs, here.

I'm not so sure this blog really fits the "law professor blog" category, alas - certainly at this point it is badly named, as I am as likely to post on music or food as I am on laws of war or international law. Overall, my sense of law professor blogging is that it is most likely to stay focused on a legal topic where it is a group blog, with some sense of disciplinary discipline - international law, whatever it might be. A group blog also has the virtue of having a certain dependable volume of quality, informative posts in some area of law. Most professors, me included, read blogs to get current information, or some idea of matters on which we should be getting information. Not really to find out what Professor Anderson is playing on his cello, or even his electric cello. And not really to find out what Professor Anderson thinks about the Simpsons Movie, even if he is reviewing it for somebody or other. When you are on a serious group blog, you tend to have a mission and a sense of professionalism that, sadly, I quite lack on this blog. I post on this blog mostly in my downtime, when I am not thinking all that hard. There are some exceptions, but that's mostly what I do here.

I also use a blog as a means for advertising pieces of mine that might not otherwise have much exposure - who is going to look at the Madrid Revista de Libros, for example, if you're not in Spain? I subscribe, but does anyone else? For that matter, how many law professors read the TLS these days? Unless you are a big name professor, generally at a big name school, the mechanisms for distributing stuff have got very confused.

So I am a little bit embarrassed to have this infotainment blog posted up there along with all those other professionally serious blogs. Also, I'm embarrassed not to have some clever name for it. Balkinization - there's genius for you! The only thing that crossed my mind was "Andersonville," and that seemed to convey the wrong message, somehow.

My impression, too, is that there are a lot of quite serious professors who, for good reasons, stay well away from blogging as, well, a waste of time. They're probably right - it is uncannily similar, is it not, to that scene in Steve Martin's LA Story, where he and some friend go roller-skating through an LA art museum - "performance art, I call it," "goofing around, she calls it." Or something like that.

Monday, July 30, 2007

Q: What does the Simpsons Movie have to do with the TLS?

A: Nothing to speak of - except that I am writing the TLS review! Renee and I are about to go off and see it, my beloved wife Jean-Marie having bowed out. Also, if you are not a TLS subscriber, you should be ... go here.

(Update. Alas, the review I wrote of the Simpsons wound up mixing up, in all the wrong ways, the summer comedy movie review with a serious discussion of out of control prosecutors engaged in all sorts of stuff that would work well in a Simpsons episode but in fact is tragic in real life - the mad, wicked prosecutor in Oregon, for example, and his butt swatting sexual assault charges. It made for an illmixed review, unfortunately, and I agree with the TLS editor that it couldn't really run. Too bad, but the editor is right. I may run some bits of the review here, but it really wasn't ready for prime time publication, as it were. It's actually quit helpful to have editors who will tell you that, straight out.)

Sunday, July 29, 2007

Heinlein's Moon is a Harsh Mistress, the market, and ecological scarcity

One side comment to the posts below celebrating the centenary of Robert Heinlein's birth. A number of the articles pointed to his The Moon Is a Harsh Mistress as a pivotal text in the libertarian movement (broad libertarianism, not merely its narrow electoral party). This is of course correct. A number of these essays likewise correctly point to the free market ideas of that novel - in particular, There's No Such Thing As A Free Lunch.

Does it bear pointing out, however, that The Moon Is a Harsh Mistress ultimately revolves around the failure of market mechanisms? That the revolution that the Professor urges is necessary not on account of markets but on account of a much more fundamental, deeply Malthusian ecological crisis? I read the thing a couple of years back, for the first time since childhood - out loud to my daughter, no less. What caught my attention especially was the Professor arguing that not only could Luna not afford to ship grain to Earth at a "fair" price - because of the increasing scarcity of water on the Moon, it could not afford to so at any price. Grain shipments in effect shipped fantastically scarce Lunar water to Earth, and it could not be shipped the other way. There could only be a short term market in grain=water. Mike confirmed the worst in a series of computer projections.

The central political premise of the book, in other words, the fact which above all argued for violent and bloody revolution, was an ecological premise, a premise of ecological scarcity, not the market as such. This is hardly to denigrate the book's market oriented libertarianism, but the central political fact, at least as far as the Professor was concerned, was not in order to promote a market but in order to end one that would end in ecological catastrophe. Which was, by the way, surely a reason why so many of my radical environmentalist friends of the 70s and early 80s - Amory and Hunter Lovins, for example - were fans of the book.

Update: Wtanksley in the comments makes a good point:

Free market and ecological preservation/conservation are not contradictory. Historically, the worst abuses of the environment have taken place in dictatorships of one stripe or another. When the people who profit or lose from the use of a resource own and control the resource, they tend to shepherd its use.

In the book, the environmental disaster was caused by a government that owned all the property, set all the laws, and ruled all the people without consent. That's pretty much the extreme version of communistic socialism.

Thursday, July 26, 2007

WSJ editorial on sending Al Qaeda in Iraq to Guantanamo

(Update, Sunday, July 29, 2007. Welcome Instapunditeers, and thanks as always to Glenn for the Instalanche! I will take a moment when I get home to clean up some grammar and add some links for further reading to the post below.)

The WSJ editorializes today in favor of sending captured Al Qaeda in Iraq senior leaders to Guantanamo. Open link, July 26, 2007, Thursday, editorial page, here. Although I often agree with WSJ editorials on issues of counterterrorism, I do not in this case.

I have endorsed, on this blog and in a recent speech-essay in the Fordham International Law Journal, at SSRN here, closing down Guantanamo. In that regard, I guess I agree with senior officials in State and DOD, criticized by the WSJ editorial, who favor shutting down Guantanamo as a good will gesture. I don't think of it so much as a good will gesture as cutting certain losses. It is highly doubtful that we are gathering significant intelligence from those we have held for years at Gitmo, and that must be set against the public relations damage that its continued existence creates with the rest of the world.

I am not, I should say, one who worships at the altar of Pew global opinion surveys of anti-Americanism. In general, those surveys are exceedingly crude in the measurements they purport to make. Worse, they fail to address such crucial questions as to whether it is really possible for the US to be loved; whether the US was ever so much loved as the nostalgia-types seem to think; whether being loved in the world actually improves the safety and security of the US or whether that is simply an assumption; and above all the "if-you-give-a-mouse-a-cookie" incentive problem, the natural tendency that if you ask someone what you have to do in order to be loved, they will inevitably move the bar higher and higher. So my acknowledgment of the public relations costs is a limited one. As part of that - again limited, but worth mentioning - is the role that Guantanamo plays in mobilizing elites within the United States itself against the very idea of a war on terror. If there were still evident, serious gains in intelligence from Guantanamo at this point, it wouldn't take much to override the public relations damage, but those intelligence gains appear to be largely, very largely, in the past.

The virtue of Guantanamo today is a different one - keeping people out of the fight who would indeed violently return to it. I acknowledge 100% what the WSJ notes about the nature of the detainees held at Guantanamo since it opened:

The Combating Terrorism Center at West Point recently examined the non-classified evidence about Gitmo detainees, and in a new report concludes that 73% were a "demonstrated threat" to U.S. forces. No less than 95% were a "potential threat." According to the Pentagon, at least 30 former Gitmo detainees have returned to fight Americans after deceiving U.S. interrogators and being released.

One of those detainees, Abdullah Mahsud, was captured in northern Afghanistan in late 2001, held until March 2004, and upon release immediately became a Taliban leader in southern Waziristan near the Afghan-Pakistan border. In October 2004, he directed the kidnapping of two Chinese engineers, one of whom was killed during a rescue attempt. This week he blew himself up with a grenade rather than surrender to Pakistani troops who had him surrounded.

Moreover, the WSJ is right to point out that critics of Guantanamo fail to explain what the alternative is, other than to bring the detainees into the regular criminal justice system. That seems like a good idea to Human Rights Watch - see its letter re the Goldsmith-Katyal national security court proposal below, blithely informing us that the regular criminal justice system has worked just fine in dealing with terrorists. It has not, as Ben Wittes has pointed out several times, seemed to many other observers to have worked out so well so far. The 1993 WTC bombing trials or the Massaoui trial, for example, seem paradigmatic of why the ordinary court system can't handle serious terrorism cases.


(Let me add something not in the original post.) Our ordinary court system is rightly designed not merely to meet some genuinely bottom-level constitutional or human rights minimum. What it takes as minimums at least partly accepts the idea that some of our ordinary criminals can be deterred and even reformed and that we should not in every instance descend to the lowest human rights denominator in how we treat those who either violate society's legal rules or are alleged to have done so. It is unlikely that a society as large and heterogeneous as the US could ever go with the Scandinavian reform model of prison furloughs and gradual reincorporation into society and so on - those humanitarian measures depend in large part on a behavioral consensus in society that even criminals share - and notice how badly those humanitarian protections have served in Scandinavian societies when, as in a multicultural setting, such consensus is not present and is instead exploited. And God knows American society is far less committed than it should to reform, rehabilitation and constructive change for inmates and prisoners. Worse, over decades the US has been committing more and more power into the hands of prosecutors - unaccountable prosecutors rather than judges, and telling the citizenry to rely not on the rule of law, but on prosecutorial conscience and discretion.

Our society, that is, already is far too prosecutor-dependent than a free society should be. Our standards for the treatment of our ordinary accused and ordinary convicted criminals are too low, not too high. But in the case of terrorism - dealing with people for whom the usual rational calculations of criminality do not work, where they cannot be deterred, where after-the-fact investigations and trials are just that, after the fact, and where the possibilities of innocent loss of life are so great, along with its spinoff effects on how ordinary life is conducted - we are not morally obligated and rationally cannot afford to offer criminal law protections that rise above certain constitutional and human rights minimums and which presume rationality, deterrence and even a certain amount of humanitarian rehabilitation.

We are not legally obligated to do so, we are not morally obliged to do so, and we shouldn't do it. But at the same time, we should not lower the standards for our existing criminal justice system, for all its participants, the ordinary criminals and the terrorists - on the contrary, we ought to be raising the standards of that system, strengthening both protections against false accusation and improving the treatment even of those justly convicted. Mingling counterterrorism justice and ordinary justice over time has the effect of both empowering terrorists and lowering the standards by which we treat ordinary criminals - consider, as an example of this trend, the deployment of the Patriot Act - promised and sold to the public as a special measure against terrorism, and yet the use of its provisions even against heinous but nonetheless otherwise ordinary crimes as child pornography. We should not be mingling ordinary criminal justice and counterterrorism in this way.

But bringing counterterrorism cases from Guantanamo into the ordinary criminal justice system does exactly that - and the result is either what Representative Nadler quite astonishingly urged in hearings recently (here, around the 51 minute mark) when he endorsed the idea that, even if captured on September 10, Mohammed Atta sould not have been interrogated, even at the cost of September 11 and the WTC coming down. Or else it is a de facto expansion of prosecutorial power and discretion to address the demand for public safety, police and prosecutorial power necessarily hugely expanded but without, remarkably, any reason to think that such "after the fact" actions would actually increase safety. It is a proposal for the worst of all worlds - a bigger police state with no increase in safety, a lowering of standards in the regular criminal justice system to try and deal with terrorism cases that simply don't belong, and no reason to believe that terrorism has been prevented up-front. I address this briefly in a piece in the New York Times Magazine, from last year, pdf here.


So the ordinary criminal justice system does not necessarily strike observers who are not already committed to it as the acme of counterrorism as such a good idea. But if not Gitmo or the ordinary criminal justice system - well, what and where? Because make no mistake, unless the US adopts a de facto policy of immediately killing rather than detaining - foolish, from an intelligence standpoint, quite apart from its morality - we will detain people and we will have to decide what to do with them, and we will conclude, HRW notwithstanding, that some of those people will not be triable within the regular criminal justice system.

My own conditions for closing Guantanamo include the stringent and frankly unlikely to be met requirements of creating a genuine alternative with its own system of civilianized preventive detention, a national security court, and other conditions not likely to be met as a condition of closing Guantanamo. Merely doing what the anti-Guantanamo activists want and closing the place by transferring them to the criminal justice system is a non-starter in my view. Indeed, if the option is closing Guantanamo and transferring the detainees to the regular criminal justice system, it would actually be better to simply let the vast majority go free - I don't include here the so-called high value detainees - even though many of those let go pose a considerable risk of future terrorism and civilian deaths, not to mention ... well, war against the United States and the lives of our soldiers. It's not just and it's not prudent, and it will almost certainly cost (more) lives; those for whom pretty much all those Guantanamo detainees are just a bunch of shepherds sold by the Northern Alliance might want to start keeping score on the civilians killed as they are released - along with dead American troops.

That said, the transfer of Al Qaeda in Iraq detainees to Guantanamo raises important legal and policy questions about Iraq as a war zone. In general, I do not favor transferring detainees in the Iraq conflict out of Iraq. It is not under all circumstances prohibited by the laws of war. The 4th Geneva Convention prohibits the forcible transfer of "protected persons" out of the occupied territory, whether into the occupier's territory or that of any other country. (Art. 49) However, far from settling anything, this merely brings us back to two highly familiar questions that have to be answered prior to applying Art. 49.

First, is this an occupation, and the US still an occuping power, in the sense of the 4th Geneva Convention? Or has the return of Iraqi sovereignty, even one which cooperates with US forces, ended the occupation and the formal application of occupation law under the 4th Geneva Convention? I would think that as a matter of law, occupation law no longer applies, although there are certainly arguments that can be made the other direction. (Those arguments, by the way, in large part revolve around the weight one gives various facts and circumstances, and people should be very cautious about ruling the other side's argument out of bounds as bad faith.)

Second, is an Al Qaeda in Iraq detainee, a non-Iraqi in particular, a "protected person" within the meaning of the 4th Geneva Convention? (And bearing in mind that Protocol I concepts of "civilian" do not apply to the US as treaty law, having not joined the Protocol.) Obviously, this question has gone round and round in the whole war on terror debate. It can be summarized this way: if an Al Qaeda in Iraq detainee is not a POW by reason of flunking the requirements of the 3rd Geneva Convention on POWs, does the person then somehow or even automatically gain the protections of the 4th Geneva Convention covering civilians and occupation? This has been a long argument, which I won't rehash here, except to say that my view is overall that held by the US government, that if, as combatant, you flunk the provisions of the 3rd Geneva Convention in Article 4 because, for example, your organization systematically violates the laws of war, you do not thereby qualify for arguably even better treatment under the 4th Geneva Convention. That would be a perverse result, plainly; in any case, your status is determined under the 3rd Convention, as an unprivileged belligerent. So it would not be per se illegal, as a violation of the 4th Convention, for the US to send persons it has determined to be unprivileged belligerents - and it would be a good idea actually to hold an Article 5 hearing, by the way - under the 3rd Convention for detention outside Iraq, in Guantanamo or elsewhere. (PS. There's a lot of discussion of those issues on this blog - look under the laws of war tag.)

Whether it would be a good idea as a matter of policy - legal policy as well as politics - is another question. Overall, I think it is a good idea to turn these guys over to the Iraqis and let them deal with them. That proposal has its own problems, of course, but short of letting them go free, the US government is not likely under any circumstances to win any praise from groups like Amnesty or HRW. If the US sends them Guantanamo, it will get slammed, if it turns them over to the Iraqis, it will get slammed, if it holds them in Iraq, it will get slammed for having recreated Guantanamo-in-Iraq. There's no pleasing the human rights critics - if Bush is for it, we're agin' - so why try?

Yet if the US is serious about Iraqi sovereignty, then as a matter of policy, they are the people who should deal with them. Sending them to Guantanamo merely keeps the US forever in charge of crucial matters of security in Iraq and pours gasoline on the fire - we have heard that argument elsewhere, have we not? If you think, as the WSJ does, that the United States is engaged in a unitary global war on terror - a unitary, single global war on terror in the legal and not just strategic sense - in which detainees in Iraq are legally no different from, say, someone detained in Somalia or O'Hare or anywhere - and Guantanamo is where you send all such detainees to keep them out of the fight, then, yes, it makes perfectly good sense to seriously consider, at least, sending Al Qaeda in Iraq to Guantanamo.


But that's not in fact how the legal and policy situation is evolving, starting with things like the Military Commissions Act of 2006. The WSJ may prefer that the Bush administration pursue a purely "war" strategy, as both a legal and strategic matter, but the Administration, for very good strategic reasons, has not done so - not from the moment, at a minimum, when the definition of crimes for which military commissions could punish people departed from defining a combatant in traditional laws of war terms as "taking active part in hostilities" to domestic law terms of "material support for terrorism." Material support, conspiracy, aiding and abetting - none of those is a traditional criterion for defining combatancy under the laws of war, yet they are indeed crucial from an "intelligence" approach to counterterrorism law. The Administration was strategically correct to move that direction, but it means that it has, functionally, given up the idea of a "legal" global war on terror in favor of multiple legal regimes that include laws of war, ordinary criminal law in some circumstances, and an emerging - but as yet very inchoate - "intelligence" conceived body of new domestic counterterroism law that includes such concepts as "material support," but also includes things like the idea of a civilian national security court and other things besides.

That shift -towards a counterterrorism law defined not by laws of war, nor by ordinary criminal law, but instead by a new domestic legal regime set by counterterrorism intelligence concepts - means that it would be a pointless exercise, and indeed provocation, for the US to transfer Al Qaeda in Iraq to Guantanamo. If your point is to provoke, by underscoring that the global war on terror is indeed a legally unitary war globally, then fine, provoke - this is in effect what the WSJ calls for. But the Administration should not do so because it is the wrong provocation - the Administration has been moving away from the conception of a unitary war on terror as a legal matter to accepting and imposing different legal frameworks on different parts of the strategic war on terror. That means war and the laws of war in some circumstances, criminal law in some circumstances, and the gradual evolution of a law of "intelligence" counterterrorism in still others.

The consequences is that if Guantanamo is needed in the future, it is needed for something quite different and indeed far more controversial than unprivileged belligerents taken on an undisputed battlefield in the ordinary and traditional sense. Guantanamo, if needed in the future, is a matter of a place to hold detainees - as Ben Wittes has described - who are aliens captured abroad in intelligence captures, whom we have insufficient evidence and ability to try in a regular US court trial but whom we cannot afford to let go free. Perhaps we should recreate such a facility in the US proper; the point is, that is the category of detainee the real debates should be about. The laws of war provide perfectly acceptable answers for those taken on ordinary battlefields in Iraq, including Al Qaeda in Iraq.

The US is, in other words, in fact drawing distinctions between kinds of detainees, because it is not, in fact, treating counterterrorism as a single, unitary, global war on terror - yes, a single, unitary struggle in the strategic sense, but no, not in the sense of a single legal standard for every situation and circumstance. The US does functionally recognize differences between people taken in New Jersey and people taken in Iraq and people taken in Yemen, Somalia, or elsewhere. Maybe that is a profound strategic mistake, as the WSJ would presumably believe. My own view, however, is that it is the better legal and strategic view - and I say this as a strong proponent of the "war" approach to Islamist and jihadist terror, someone who rejects firmly the "it's all criminal law" approach, someone not urging a "softer," "let's improve global public relations" approach to counterterrorism. Counterterrorism requires an honored place for abduction and assassination, along with many other things. Counterterrorism policy, as a matter of how it is carried out under the rule of law, will have to set up distinct legal regimes to reflect different forms of action ranging from war to criminal law enforcement to covert action, and to these distinctions will have to take into account the origins and status of various kinds of detainees. Those taken on ordinary, traditional battlefields, such as Iraq, even when they are unprivileged belligerents such as Al Qaeda in Iraq, are best dealt with in those terms -in that specific case by application of the ordinary laws of war - and in situ, even if the laws of war permit greater latitude than that.

The most compelling reason for that? Because it is better, at this point, to avoid an unnecessary fight over the laws of war in this case - one that is specific to the circumstances of the war in Iraq. The much bigger, much more important argument will be there in any case, the argument over what to do with detainees for whom there is no obvious war zone, no Iraqi government, no US presence, no actual 'war' in the strictly legal sense. There is a pretty easy solution in Iraq - keep them in Iraq and don't pick an unnecessary policy and legal fight. Keep the powder dry for the much bigger fight over future detainees who don't come from Iraq or Afghanistan, and who threaten terrorism within the United States itself. That policy and legal battle is almost certain to come, and probably sooner rather than later.

*** From the WSJ editorial:

The question is what to do with him [Khalid Abdul Fattah Dawoud Mahmoud al-Mashadani] and other al Qaeda figures who are being captured in increasing numbers in Iraq. One possibility is to turn him over to Iraqi security forces, who would not read him any Miranda rights. He would probably be tried and hanged. This would serve the cause of justice because Iraqis are the main victims of al Qaeda in Iraq's suicide bombings. But handing Mashadani over to Iraq might also eliminate him as a source of intelligence, even as we learn more about al Qaeda in Iraq and thus know better what to inquire about.

His other natural destination is Guantanamo, where the U.S. houses other enemy combatants in the war on terror. This would guarantee his safe treatment, while also keeping him available for further interrogation. Just as important, the transfer would signal that Gitmo continues as a valuable antiterror tool.

We're told, however, that some senior officials at the State and Defense Departments are opposed to such a transfer. They want Mr. Bush to close down Guantanamo as a goodwill gesture to the rest of the world, and they believe that transferring al Qaeda in Iraq detainees there might make that harder to do. They may be right, but in our view that's all the more reason to send the detainees to Gitmo.

While Guantanamo is clearly disliked around the world, those who want to close it have yet to offer a suitable alternative. Transferring its detainees to some place further offshore would mean spending billions of more dollars on a new facility, while facing the same criticism from antiwar activists. Gitmo is also territory under U.S. control, which means it avoids the complication of embarrassing allies in Afghanistan, Iraq, or somewhere else (as in the "secret CIA prisons" in Europe where KSM and other 9/11 plotters were allegedly kept before their transfer to Gitmo in 2006).

The legality of Guantanamo has also been upheld by the Supreme Court, which isn't true of any other foreign outpost. The High Court has agreed to hear another Gitmo-related case in October, and it's not a bad idea to remind the Justices that Guantanamo harbors terrorists captured on the current battlefield while trying to kill Americans. That fact might give them pause before they supplant their own war judgment for the Commander in Chief's and make it easier for these killers to return to the war.

The real goal of Guantanamo's critics is to have these killers treated like common criminals in American courts. That would make it impossible to deny them the full array of U.S. legal protections. In many cases, prosecutors would lack enough evidence to convict them under normal trial rules, especially if much of the evidence were classified. Soldiers don't build a criminal case like "C.S.I." sleuths when they're snagging an enemy on the battlefield while also trying to avoid getting killed.

The result of bringing Gitmo detainees into U.S. criminal courts would inevitably be their widespread release ...

Wednesday, July 25, 2007

The TLS of July 20, 2007

It won't mean very much, I suppose, unless you subscribe or have easy access to a copy, but this week's TLS of July 20, 2007 is a very fine issue on many different matters. Claude Rawson's cover essay on wit in the 18th century is terrific. Likewise Adrian Tahourdin's review of Pierre Bayard's slightly scandalous argument that it is okay to opine on books we haven't read. (Let me add, however, as a sometime TLS reviewer, that I have never reviewed a book for the TLS or anywhere else that I haven't read cover to cover - on the other hand, I've never been a weekly reviewer, "reading" and cranking out something every few days - I have always had the luxury of taking my own sweet time. This has sometimes led to abuse of the privilege of time - and I admit I am late on a couple of things for TLS now - but I can say I've read everything I've reviewed.) And Justin Belplate's essay on Milan Kundera's The Curtain is also very thoughtful. It's a terrific issue.

Thinking about book reviews ... I once received an invitation, which very regrettably I wasn't able to follow up, to join a very special book club - one in which you discussed books of which you had read only the reviews, not the actual book itself. A stunningly good idea - and honest, too!

Multiculturalism is ...

... the elite management of group social conflict (and the solicitation of such conflict to be managed by such elites) through the conversion of sensibility, chiefly resentment, founded upon group identities of ethnicity, race, gender, and religion into universal and legally and bureaucratically enforceable claims of human rights; with the consequence of displacing the hithertofor liberal content of those rights while yet still proclaiming a universal liberal basis for these new multiculturalist, sensibility-resentment-based claims of rights.

(Multiculturalism is not really capturable in a one sentence definition, of course, but I thought I'd give it a try. No doubt I will amend it down the road.)

Monday, July 23, 2007

Larry Solum's Legal Theory Lexicon on 'legitimacy'

Larry Solum (that's Lawrence B. Solum, John E. Cribbet Professor at the University of Illinois College of Law, Champaign and Professor of Philosophy, University of Illinois, to you, thank you very much - one of our leading jurisprudentialists and, I'm pleased to say, a dear friend over several decades) publishes, as part of the well-known Legal Theory Blog, a gradually expanding dictionary of basic concepts in legal theory called the Legal Theory Lexicon. It is of immense value not just to students - it is aimed at first year law students with an interest in theory - but also to professors and others looking for a short but always intelligent and straightforward account of key concepts and terms, ranging from legal philosophy to law and economics and so on.

In his most recent post, Larry takes up that question so vital in discussions of international law - certainly it is at the center of much of my own work whether in law narrowly or such broader areas as international organizations, global civil society, the UN, etc. - what is legitimacy?

As Larry himself would say on the Legal Theory Blog, highly recommended! Here is a bit to give you the flavor:

Normative and Sociological Legitimacy

Let’s begin with the distinction between normative legitimacy and sociological legitimacy. On the one hand, we talk about legitimacy as a normative concept. When we use “legitimacy” in the normative sense, we are making assertions about some aspect of the rightness or wrongness of some action or institution. On the other hand, legitimacy is also a sociological concept. When we use legitimacy in the sociological sense, we are making assertions about legitimacy beliefs--about what attitudes people have. Although these two senses of legitimacy are related to one another, they are not the same. That’s because an institution could be perceived as legitimate on the basis of false empirical beliefs or incorrect value premises. The opposite can be true as well: a controversial court decision (Roe, Bush v. Gore, etc.) could have been perceived as illegitimate, even if it had been a legitimate decision.

Conceptions of Legitimacy

Concepts and Conceptions

The distinction between normative and sociological legitimacy is important, but, by itself, it doesn’t get us very far. What does “legitimacy” mean? How is “legitimacy” different from “justice” or “correctness”? Those are deep questions—deserving of a book-length answer. My general policy in the Lexicon series is to steer a neutral course—avoiding controversial assertions about debatable matters of legal theory. But when it comes to legitimacy, it is difficult to stick to this plan. The difficulty is not so much that legitimacy is the subject of a well-defined debate; rather, the problem is that the concept of legitimacy is usually ill-defined and undertheorized.

So here is the strategy we will use. Let’s borrow the concept/conception distinction for a starting point. Let’s hypothesize that there is a general concept of legitimacy but that this concept is contested—different theorists have different views about what legitimacy consists in. Some theorists think that legitimacy is conferred by democratic procedures; others may think that legitimacy is a function of legal authorization. Let’s take a look at four different notions of legitimacy ....

Ben Wittes contrasts the Leahy-Specter habeas legislation and the Levin proposal for detainee hearings

My Hoover Institution colleague Benjamin Wittes' new TNR online column continues his examination of proposals to amend the Military Commissions Act and related legislation that were passed under the last Congress. The current column contrasts two legislative proposals, one by Senators Leahy and Specter that would give the detainees at Guantanamo habeas corpus rights, and the second by Senator Levin that would expand the judicial protections in the current combatant status review hearings. Ben's bottom line is that the Leahy-Specter proposal is merely another Congressional punt - essentially dumps issues that ought to be set out by Congress into the laps of the courts without substantive guidance - a bill he rightly says should be called the "Leave It To Justice Kennedy Act." Levin's proposal, by contrast, while not without problems, is a serious, substantive one that ought to serve as the basis for negotiation and compromise - not the current veto threat waved by the White House - with the executive. Some excerpts:

In introducing their bill on Guantánamo Bay detentions earlier this year, Senate Judiciary Committee Chairman Patrick Leahy and ranking member Arlen Specter announced that they intended it--in Leahy's grand words--"to restore the Great Writ of habeas corpus, a cornerstone of American liberty since the founding of this Nation." The bill, Leahy said, was an effort to "amend last year's Military Commissions Act, to right a wrong and to restore a basic protection to American law."

Translation: The bipartisan legislation aims to kick the question of what to do about detentions at Guantánamo to the courts so that senators don't have to make hard choices.

The so-called Habeas Corpus Restoration Act of 2007, now awaiting action on the Senate floor, is the darling of human rights groups and liberals offended by the Bush administration's detention policies but lacking any idea of a better way to handle the people the government believes to be sworn enemies of this country. The bill is emotionally satisfying to administration critics because it undoes something the administration was keen to accomplish in the MCA last year: stripping the courts of jurisdiction over the hundreds of lawsuits filed by detainees at the base. Reinstating this heap of lawsuits would put pressure on the administration to clean up its act, as the suits did before the MCA dumped them out of court. But it would do it without requiring senators to think too hard about what a sensible policy might actually look like. Were the bill honestly named, it would be called the Leave it to Justice Kennedy Act.

Indeed, putting aside all of the rhetoric about the Great Writ, cornerstones of American liberty, and the founding of the nation, the bill does virtually nothing to shape the law in this murky area. Can the administration lock people up as unlawful enemy combatants? If so, what level of due process are detainees entitled to? The Habeas Corpus Restoration Act doesn't say. All it does is allows the courts to hear cases under whatever rules might happen to exist--or whatever rules the courts might happen to relieve Congress of the burden of creating.

The frank truth is that the habeas question is a sideshow. Whether or not the courts have jurisdiction over Guantánamo --and the Supreme Court may well decide that it does even in the absence of congressional action--they can't fix the core of the problem. The real question is the one this bill self-consciously avoids: What should the government do with an alien abroad whom it believes to be too dangerous to let loose yet whom it cannot charge with a crime? That's a question for Congress, not the courts.

This question brings us to Section 1023 of the defense authorization bill, the bill that the Senate shelved this week when Republicans blocked Democratic efforts to use it to force a change in Iraq policy. Section 1023 is the creation of Senate Armed Services Committee Chairman Carl Levin, who has also cosponsored the Leahy-Specter bill. It hasn't gotten the attention the habeas bill has garnered, partly because it doesn't have a pretentious name that evokes the great traditions of American law. But, though drably titled "Procedures for Combatant Status Review Tribunals; Modification of Military Commission Authorities," Levin's proposal is a serious piece of legislation--one that does more than toss a hot potato to the courts or yap about closing Guantánamo. It's a real, albeit far-from-perfect, effort to imagine law that might govern long-term detentions in the war on terrorism.

So predictably, the Bush administration announced earlier this month that it "strongly opposes" the section and declared that if it were part of a final bill, the president's "senior advisors would recommend that he veto the bill." This is foolish. With the Supreme Court breathing down its neck, the administration has to cut itself a deal that puts itself on a stronger legal footing. The flaws in Levin's proposal are altogether fixable if the administration engages seriously it.

Levin's proposal starts with the key concession to reality that liberals and human rights groups are going to have to make: that there are some people this country is going to hold for a long time without charging with crimes. Put simply, Levin's language would validate in law the administration's idea of holding Al Qaeda and Taliban fighters as "unlawful enemy combatants"--and it doesn't put a time limit on these detentions. Moreover, it would validate the essential mechanism the administration has erected to determine whether a detainee is properly categorized as an enemy fighter: panels known as the Combatant Status Review Tribunals.

On the other hand, Levin's bill would also make these tribunals far more judicial than the ones the administration holds under current authorities. It would make the presiding officer a military judge. It would give lawyers to detainees, who currently only get non-legal assistance from a "personal representative." It would bolster the detainee's ability to present evidence of his own and to attack the government's evidence against him. Detainees' lawyers would have access to the classified evidence against their clients, and detainees would get a summary of that evidence "that is sufficiently specific to provide the detainee a fair opportunity to respond."

... [O]n the big picture, Levin's spot on--that is, he's envisioned a legal structure for the detention of people who are not prosecutable as criminals yet who don't fit comfortably into the traditional premises of the laws of war either.

In my last column, I argued that the administration is likely to get thrashed in the next round of Supreme Court litigation over Guantánamo--litigation the High Court has just agreed to hear next term. The only viable way to avoid this fate, which could have real negative consequences for the executive branch, is to create a realistic statutory legal framework for handling detainees so that the courts have something to defer to. Levin's bill is a first draft of such a framework.

An administration that was serious about preserving its ability to detain the enemy would recognize in it a partner and an opportunity. A Senate interested in actually doing its job--rather than shunting its job to the courts--would see this bill, not the Habeas Corpus Restoration Act, as the center of the action.

Benjamin Wittes is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.

Sunday, July 22, 2007

Why do the Democrats want to keep the flying imams flying?

So asks Instapundit, taking up reports that Democrats in Congress are insisting on killing off legislation offered by Rep. Peter King of New York that would offer protection against civil liability for a private citizen reporting in good faith a terrorist threat or concern that turns out to be false - the so called John Doe tipster protection.

(Update. After sustained wrangling, Congressional Democrats finally agreed to leave the tipster protection in the bill. Why they ever would have resisted it is quite beyond me.)

To the argument that there is no reason to offer such protection because the idea that someone might actually get sued is merely theoretical ... well, the infamous imams who, it would appear, deliberately created a (in my view prosecutable) provocation on an airline last year, one seemingly orchestrated with the Islamist front-posing-as-civil-rights organization CAIR, have already initiated a lawsuit against the private citizen who alerted the authorities. There's someone, in other words, who is already the target of an actual lawsuit for a good faith tip. It's not a theoretical possibility at all. CAIR's effort appears to have been aimed in part precisely at causing people around the country - otherwise urged by signs and announcements in every form of mass transit to stay vigilant and report suspicious behavior, to consider carefully that it might lead to personal liability in a lawsuit, even if done in perfectly good faith.

The most stunning part of this is not actually the Congressional Democrats. Their commitment to counterterrorism is modest at best. It is, rather, that the Bush administration - you know, the wicked, torturing, secret detentions, etc., etc., Bush administration - has quite refused to respond to a litigation strategy that is, before our eyes, dismantling a pillar of domestic protection against terrorism - people unsure of what they are seeing, but being willing to report it to the authorities. After all, the counterterrorism experts tell us, it is the accumulation of little reports and bits that people see but which they can't be sure of, put together with what other people have also said with equal uncertainty, that supposedly allows domestic law enforcement and intelligence to locate the real threats. Yet a lawsuit, and the threat of more to come, based on an incident seemingly arranged for the purpose, of radical imams in the United States deliberately provoking airline security, has the ripple effect of undermining that structure of intelligence gathering and reporting. That the Bush administration would not recognize this as a blow aimed at even such modest domestic counterterrorism efforts as this country now makes, and respond, is quite staggering. It is a testament to just how in thrall the Bush administration is to multiculturalism domestically - however it behaves abroad, at home, it coddles the front organizations, all soft and gooey, and refuses to take them on, even as they successfully pursue a strategy of dismantling domestic counterterrorism mechanisms of undeniably (unless you are a Congressional Democrat, it seems) immense importance.

The rule CAIR wants, of course, it would appear is no reporting of suspicious activities at all. Naturally. The rule, however, that Congressional Democrats seem to want is, "Well, sure, report - but better be damn sure it's true, otherwise someone will sue your ass." Which is to say, of course, don't report it. For a while, under Bill Clinton, the Democratic Party seemed like it was beginning to understand the role of incentives in policy. But you really have to believe that terrorism is not an important threat, it seems to me, to think that this is a desirable set of incentives. And for a party that seems intent on bringing counterterrorism home and making it a matter of a defensive, police-oriented, law enforcement driven struggle, it is hard to see how this could possibly make sense. Let's get off offense against terrorism, go on defense within the United States - and then make ordinary people liable - and liable to being publicly labelled as racists, too - when they try to provide the information we the government say we need? It's a pretty powerful statement of just how sigificant a priority - not - Congressional Democrats think terrorism actually is.

I say, let them vote in Congress - and then make sure that ads ensure that pretty much every voter knows how his or her representative voted on the question. It's a leading indicator of priorities, and should be offered to the public that way.

Here at Instapundit (pointing to Powerline):

KEEPING THE FLYING IMAMS airborne. I really don't understand what the Democrats think they're going to accomplish here. It certainly suggests that they don't think major terrorist attacks are imminent, since if that happens and it turns out someone didn't report something, the blowback will be fierce. In that regard, at least, I hope they're right.

Like Professor Reynolds, I find this incomprehensible under any rational security calculation or even partisan political calculation by the Democrats themselves. Do Congressional Democrats really think this is what the American people think? And why wouldn't Republicans be making this a centerpiece of election advertising? Powerline has extended comment, here:

Friday's excellent Investors Business Daily editorial on the Democrats' burial of the John Doe bill warrants attention:

"Democrats are trying to find any technical excuse to keep immunity out of the language of the bill to protect citizens, who in good faith, report suspicious activity to police," said Rep. Peter King, R-N.Y. "I don't see how you can have a homeland security bill without protecting people who come forward to report suspicious activity."

Neither do we, and certainly the actions of the six imams last November qualified as suspicious. While at the gate, according to police reports and witnesses, the six made anti-American comments and provocatively chanted "Allah, Allah, Allah." On the plane, they asked for seat-belt extenders with heavy metal buckles, even though none was obviously in need of them, and then dropped them at their feet.

Last time we checked, there was no tenet of Islam that required them to leave their assigned seats shortly before takeoff, a violation of federal rules, and occupy the exit and entry rows of a jet aircraft, a pattern associated with the 9/11 attacks. All six moved — two to front-row first class, two in the middle on an exit row and two in the rear of the cabin.

Was it racism to report these actions? Stereotyping? Heather MacDonald of the Manhattan Institute notes: "A stereotype in this instance is nothing more than a compilation of facts about who has attacked American interests in the past and who, given what we know, is most likely to do so in the future."

The editorial stops short of asking why the Democrats are blocking the John Doe legislation. Recall that the legislation arises in the context of the case of the flying imams. Recall also that the case of the flying imams is a production brought to us by CAIR, the Islamist front group that holds itself out as a civil rights organization. The attorney representing the flying imams in their lawsuit in Minnesota federal district court is an officer of CAIR's New York chapter.

The Democrats' opposition to the John Doe legislation is consistent with the alliance between radical Islam and the American left. It is an alliance that one can see embodied in the person of Minnesota Fifth District Rep. Keith Ellison, America's first Muslim congressman. Ellison had spoken at the conference of the flying imams in suburban Minneapolis over the weekend before the incident giving rise to the case. If the case of the flying imams ever gets off the ground, one incidental benefit would be the illumination that the discovery process might shed on the imams' weekend deliberations.

See also this Rich Lowry column in the New York Post, July 24, 2007, over at RCP, here. To judge by other articles, Lowry understates the extent to which the whole imams incident was orchestrated precisely as a provocation - which the Bush administration, in keeping with its general dangerously soft "multiculturalist" stance toward issues of terrorism domestically, refused to take up despite calls for federal prosecution of the imams. See, for example, Richard Miniter's December 2006 New York Post column, here.

*** From Lowry:

July 24, 2007
New York Post, via RCP

Suing Anti-Terror Tipsters

By Rich Lowry

If you see something, hire a lawyer. Then, perhaps, you can say something.

That would be the new mantra for passenger vigilance -- replacing the ubiquitous "If you see something, say something" -- if Democrats get their way in Congress. They oppose an amendment to the homeland-security bill sponsored by Rep. Peter King (R., N.Y.), that would protect anyone from civil lawsuits who, in good faith, offers a tip about suspicious activity on mass transit.

The case of the "flying imams" prompted King's amendment. On Nov. 20, 2006, six Islamic clerics were removed from a US Airways flight in Minneapolis after passengers complained about behavior they considered suspicious. The imams prayed before boarding the plane, didn't sit in their assigned seats -- arranging themselves in a pattern associated with the 9/11 hijackings -- and asked for seatbelt extenders. Authorities questioned and eventually cleared them.

Twenty-first century America wouldn't be a boon to grievance-mongers of all varieties if such an incident didn't occasion a lawsuit. With the help of the Muslim pressure group the Council of American-Islamic Relations, the imams filed a discrimination suit against US Airways and the passengers who alerted the airline to their worries. The imams allege a "conspiracy to discriminate" against them that was "intentional, malicious, willful, wanton and callous."

This conspiracy was launched in the boarding area by "an older couple who was sitting behind them and purposely turning around to watch" them as they prayed. Then, the older gentlemen made a cell-phone call, and "while observing the Plaintiffs discreetly, he kept talking into his cellular phone." We are supposed to believe that this man was just waiting to stumble upon a few Muslims whom he could arbitrarily inform on for no purpose other than denying them their rights under the 1964 Civil Rights Act.

Obviously this wouldn't have happened if the men weren't Muslim, but fears of Islamic terrorism necessarily focus on Muslims. If the perpetrators of 9/11 and the Madrid, London, and Bali bombings had been Episcopalian, a group of strange-acting priests traveling in their vestments would warrant an extra measure of suspicion. This is not discrimination, but a common-sense reaction to the facts of life.

A good-faith response from the flying imams would have been to say, "We don't like it, but we understand." Instead they seek damages for their "fear, anxiety to fly, humiliation, embarrassment, mental pain, suffering, inconvenience and financial injury." Their agenda -- and that of CAIR -- is to make everyone ignore the association of Islam with terror that has been forged by jihadists, and to punish anyone who acts on knowledge reinforced in headlines every day.

Because we can't have police everywhere, civilian tips are indispensable. A video-store clerk alerted authorities to the Fort Dix plot after he saw a tape of men in Muslim attire firing guns -- but not before he wondered, "Should I call someone or is that being racist?" Debra Burlingame points out that an airline employee who checked in two of the 9/11 passengers didn't ask for a special search of them because "I was worried about being accused of being 'racist.'"

If the King amendment doesn't make it into law, people in such agonizing situations will have to worry not just about being called racist, but about being sued if their suspicions prove unfounded. The King amendment garnered 304 votes in the House and 57 in the Senate, but a majority of Democrats voted against it in both houses, and now key Democrats are trying to keep it out of a House-Senate conference committee.

The Democrats oppose fighting al Qaeda in Iraq, oppose key provisions of the Patriot Act, oppose President Bush's electronic-surveillance program, oppose Guantanamo Bay, oppose the aggressive interrogation of terrorism suspects, and now they oppose lawsuit-free passenger vigilance. If only they took the terror threat as seriously as that man who may have to defend his cell-phone call in court.

The Rene Char photo that is on my Bibliotheque National centenary exhibit poster

Am I the only person in the US to have a framed poster of Rene Char on the wall?
(By the way, there is a useful short, straightforward biography and discussion of Char's key works at enotes, here.)

Diario: Winding up teaching in Santiago, Chile and coming home to DC

My finance seminar at the University of Chile law school wound up on Friday night, and it was time to get started home. It would have been perfect to stay the weekend and ski, if only I were a skier. But I also have a full writing schedule awaiting me at home, things that need to get completed at least in draft before classes begin again in August, so it is time to get back to DC. Saturday was a beautiful morning in Santiago - blue skies and not the smog that had been hanging over the city, as is only too normal in the winter. Then it started to pour rain. It rained hard and cold all afternoon. Finally, in the late afternoon it all cleared up, gloriously, with fresh snow very low on the hills and a beautiful sunset. (And if I hadn't managed to bust my camera, I would have pics to post.)

I try not to get too crazy doing tourist purchases - we have just been in London and Paris, with a certain amount of discretionary spending by my wife at Agnes B and Claudia Pierlot (?). Anyway, here in Chile I have limited things to some lapislazuli earrings and chains for wife and daughter. And I found some posters this morning at the Information Center that Jean-Marie might want to use in her classroom - tourist posters of Patagonia.


Jean-Marie asked me to be on the lookout for the tourist posters. Thinking it over, though, sitting in the Havana coffeeshop - open wi-fi - on Avenida Providencia, if I were decorating her classroom in an all boys school, St Alban's, I would skip the tourist posters and instead go after moderately sexy advertising posters with girls not-quite-decently-dressed saying important things in Spanish. It's probably a fine line between being sexy enough to make foreign language interesting and romantic, and merely distracting. I myself think it better to err on the side of sexy distraction - but then, unlike my wife, I don't have to teach the past subjunctive to hormonally-charged adolescent males.

On the subject of gender and foreign language study, I saw several large college semester abroad-study Spanish groups in Santiago in the past couple of days. I'm not sure I would pick Santiago as a place to learn Spanish, for the same reason I would not pick Sevilla - Santiago is a lovely city, and very safe as Latin American capitals go, with very, very wonderful people. On the other hand, Chileans, like Andalucians, speak very rapidly and swallow not just terminal syllables, but whole paragraphs. My students were very nice about carefully pronouncing things when speaking with me, but I was amazed at how difficult it was for me to understand people on the street and in shops - same problem as I had in Sevilla - enough to make me doubt that I understood the language, until we went to Madrid and it was a completely different story. Anyway - I noticed that the college semester abroad programs seemed to run about 75-80% women. Very few men. Why is that? Jean-Marie and I have repeatedly noticed this in Europe, too. As Jean-Marie said back then, she more or less expected this in France, because judging by Renee's schools, French is regarded as the language for girls who have trust funds and plan to study art history. But we don't see the guys in these programs anywhere we go. Where are the guys?


Next door to my hotel in Santiago is a very fine bookshop, La feria del libro chileno, I think it is called. Harry Potter? Well, this and seemingly every other bookshop in Santiago has Harry Potter in the window - stacks and stacks of them - in English, all 800 pages of it, I might add. It's a testament to reading power in a foreign language here in Chile. At several of the bookstores today there are Harry Potter look-alikes, with cape and glasses and wands. Very cool. I thought of this on seeing Instapundit's posts about reviews of Harry Potter. But I'm not one of the Harry Potter fans, alas; I've thought the whole thing derivative in extreme from the beginning, and a not very interesting pastiche. Fantasy writers often seem to think it enough to be able to invent a complete alternative world; there is more to literature than that, no es asi?

This morning I walked up to the Pablo Neruda house museum over near Bellavista here in Santiago. I have mixed views on Neruda. I have always loved the 20 poemas de amor. But I've never taken the political poetry seriously - even when I was genuinely on the left, I never took political poetry seriously. I tried, heaven knows, with Brecht and lots of others, but I guess I'm a rationalist in politics - in the sense of thinking it really must be about arguments, rationality and experience, not appeals to emotions.


I know this runs contrary to my general idolizing of Rene Char on this blog - Jean-Marie and Renee gave me a framed poster of Char from the Bibliotheque National exhibition in Paris on the centenary of Char's birth this summer, and seeing the exhibition was one of the high points of the June trip to Europe. (Am I possibly the only person in the whole US with a framed portrait of Rene Char on the wall? And possibly one of the very few even in France?) But for all that, in fact I don't take Char's concrete politics - as a communist or as anything else - politics as policy, as policies - very seriously when expressed in his poetry. A certain sensibility, yes; but an argument - the kinds of propositional arguments that, say, Brecht seemed to think were implicit in his poetry as well as plays - no. I have always been acutely aware, on the contrary, even back in the day when I was still over on the left, even as a teenager, of something that Stendhal said about romantic love in his eponymous essay On Love - the way in which it could sweep you along through the power of emotion alone into thinking you had discovered great sublime truths and that those emotions translated to true propositions. However, he added drily, one could achieve exactly the same effect, the same feeling of transcendental certainty, for pretty much any cause - merely by listening to great Italian opera or stirring martial music. And anyway, for all my deep and abiding respect and love of Char's wartime writings, he is something of a romantic about war.

That leaves the rest of Neruda's work - the stuff that is neither the romantic love poetry nor the agit-prop. It has powerful images, absolutely. I am rather less certain I find that those works hang together to create a whole thing and not merely a collection of images. Borges (according to that new memoir by his friend, reviewed in the TLS a couple of weeks ago, here, it is an open link, hooray!) rather cattily thought that one might easily delete whole sections of Neruda's works and Neruda himself would not notice that the sections were missing. That's mean but something about it seems right.

It may also be that I am put off by the effort, by Neruda himself and by his memorialists, to present the Heroic Man of Letters and Literature. This was the stance of all of them, Neruda, Char, Camus, Cendrars, pretty much everyone, the women included, writing was power and power was masculine (yet not, never Stendhal, strikingly). The period when literature was more self-consciously masculine, all those photos of Writers Writing, a distinctly masculine projection of power which has, however, largely come to an end. Meanwhile I, and quite possibly you, dear reader, have shifted in our sense of the power of literature along with the age and demoted it. I, like those of our age (and I don't mean this ironically) believe less in the redemptive power of literature than the redemptive power of economics and social science. I don't believe in the latter, economics and social science, very much, true - but, look, would I really consider John Updike's novel Terrorist: A Novel, to be very helpful in understanding, well, you know, terrorism? Of course not. Of course, the response might be, naturally not, but that is merely because Updike is out of his depth here. What about, instead, a novel about the rise of a jihadist and jihadist sensibility in, say, Hamburg or London by someone closer to the community, wouldn't that be better, and indeed better than what the also socially remote social scientists have to say about jihad, if the purpose is to understand its sensibility?


I used to think so, yet increasingly have doubts. Not because I think the social scientists necessarily have much to offer, but because I have grave doubts about what is to be learned from literature about society and even sensibility beyond the writer him- or herself. But the shift away from the heroic writer to the eminently practical social scientist can also be understand in a much longer intellectual historical context, and it is surely a large part of my unease. It is, in this sense, the shift from the heroic virtues chronicled by Walter Scott to the bourgeois and commercial, distinctly unheroic, virtues of, say, the Scottish enlightenment - the time of Adam Smith, David Hume, Adam Ferguson, pragmatists all (see the marvelous essay on this very subject by Marvin B. Becker, The Emergence of Civil Society in the Eighteenth Century: A privileged moment in the history of England, Scotland, and France (Indiana UP 1994).) It is the very long term cultural and social shift although, I suppose one might argue, as the faddish newspaper discussion of the so-called "New Victorians" and "YAWNS" suggests, it has a current cognate: the rising generation, by contrast to its baby boomer predecessors, today starts from and doesn't merely finish with distinctly pragmatic, not heroic, values. Still - rewinding to Neruda - I have an abiding fondness for the 20 poemas, and an abiding nostalgia for a song version of Poema XX sung by the Peruvian Tania Libertad, a 78 single from the 1970s whose flip side was the also very lovely Cancion para una sola voz, a piece which I have gradually learned to play on cello.

(That's what I thought in the Havana cafe on Avenida La Providencia in Santiago, after leaving the Neruda museum. I've now boarded the plane back to the US, where I have papers to grade, things to write, and my wife and daughter to see.)

(PS. I'm home. And exhausted. It's a long plane ride.)

(PPS. This was my imitation of a Spectator-style "Diary" column. Hmm.)

Censorship in Spain

I noticed this on the ever-great Barcepundit, and in the interests of defending freedom of expression, I have reposted below the oh-so-offensive magazine cover. Like Barcepundit, I also published the Muhammad cartoons. Here is Barcepundit on the subject. (PS I note that Instapundit is also on this.)

Spanish judge violates freedom of expression, orders magazine confiscated

Wednesday, July 18, 2007

Norman Borlaug

(Update: See this opinion piece by the great Norman Borlaug, in the Wall Street Journal, open link here, Sunday, July 22, 2007.)

Well, I have long known about Norman Borlaug, now age 93, as I have long done international development work. But my kid has never heard of him nor, come to that, students at my law school. Good for Gregg Easterbrook for pointing out that Borlaug has saved more lives than anyone living today. Here from the Huffington Post:

Today in Washington I was in the room as the greatest living American received a medal. George W. Bush, Nancy Pelosi and others were present. But will you ever hear this event occurred? To judge from tonight's major network evening newscasts, perhaps not. Cameras were allowed at the ceremony but I saw none from the major networks, though the international press was significantly represented. And will you recognize this great man's name when I say it?

The greatest living American is Norman Borlaug, who won the Nobel Peace Prize in 1970, and joins Jimmy Carter as the two living American-born laureates around whose necks this distinction as been placed. Do you know Borlaug's achievement? Would you recognize him if he sat on your lap? Norman Borlaug WON THE NOBEL PEACE PRIZE, yet is anonymous in the land of his birth.

Born 1914 in Cresco, Iowa, Borlaug has saved more lives than anyone else who has ever lived. A plant breeder, in the 1940s he moved to Mexico to study how to adopt high-yield crops to feed impoverished nations. Through the 1940s and 1950s, Borlaug developed high-yield wheat strains, then patiently taught the new science of Green Revolution agriculture to poor farmers of Mexico and nations to its south. When famine struck India and Pakistan in the mid-1960s, Borlaug and a team of Mexican assistants raced to the Subcontinent and, often working within sight of artillery flashes from the Indo-Pakistani War of 1965, sowed the first high-yield cereal crop in that region; in a decade, India's food production increased sevenfold, saving the Subcontinent from predicted Malthusian catastrophes. Borlaug moved on to working in South America. Every nation his green thumb touched has known dramatic food production increases plus falling fertility rates (as the transition from subsistence to high-tech farm production makes knowledge more important than brawn), higher girls' education rates (as girls and young women become seen as carriers of knowledge rather than water) and rising living standards for average people. Last fall, Borlaug crowned his magnificent career by persuading the Ford, Rockefeller and Bill & Melinda Gates foundations to begin a major push for high-yield farming in Africa, the one place the Green Revolution has not reached.

Yet Borlaug is unknown in the United States, and if my unscientific survey of tonight's major newscasts is reliable, television tonight ignored his receipt of the Congressional Gold Medal, America's highest civilian award. I clicked around to ABC, CBS and NBC and heard no mention of Borlaug; no piece about him is posted on these networks' evening news websites; CBS Evening News did have time for video of a bicycle hitting a dog. (I am not making that up.) Will the major papers say anything about Borlaug tomorrow?

Borlaug's story is ignored because his is a story of righteousness -- shunning wealth and comfort, this magnificent man lived nearly all his life in impoverished nations. If he'd blown something up, lied under oath or been caught offering money for fun, ABC, CBS and NBC would have crowded the Capitol Rotunda today with cameras, hoping to record an embarrassing gaffe. Because instead Borlaug devoted his life to serving the poor, he is considered Not News. All I can say after watching him today is that I hope Borlaug isn't serious about retiring, as there is much work to be done -- and I hope when I'm 93 years old I can speak without notes, as he did.

What I do recall, back in the early 1980s, were complaints from environmentalists with whom I was working at the time in Colorado, that the Green Revolution was environmentally bad because it promoted monocrop agriculture and faciltated population increase. The "deep ecology" view, as I heard it at the time, was that the Green Revolution was bad because it increased the technological dependence on cereal crops, but mostly that it facilitated population growth. As Easterbrook points out, in fact the fastest way to decrease fertility is to increase wealth, including by not starving people.

Preparing for my international finance class

So, getting ready for my first international finance class at the University of Chile law school, tonight, here in Santiago. I've been reviewing notes and vocabulary - my desire is to do this in Spanish, which may be either a great idea or a terrible one. We shall see. High volatility experiment. There are a lot of finance terms that somehow didn't show up in the Spanish I learned in Peru as a Mormon missionary many decades ago - hedge fund, private equity, futures market, derivatives. Not in the Bible or the Book of Mormon, either. But I've mostly managed to locate the vocabulary for those terms - anyway, so many of them are either close cognates or else the word is borrowed from English ("swaps").

Oddly - since for most people speaking is harder than listening - my bigger problem is understanding what people are saying. Look, I never had this problem in Peru, or Colombia, or Madrid. But in Sevilla I couldn't understand 80% of it, which shocked me, and I am finding it somewhat problematic here in Santiago. Terminal syllables get dropped here, just like in Andalucia. It is more or less the way I speak English, I'm told - tends to dry up at the moment when you're about to hear it. So I am actually more concerned about being able to understand my students' questions and comments than I am being able to say things. My accent, let's face it, is atrocious. And I misuse and misapply many prepositions in ways that my wife wouldn't tolerate from her American high school students in spanish class. But I use the subjunctive pretty well - quite automatically, in fact. I can't use the vosotros form at all - just never studied it, except to read it, so I simply don't know the forms automatically. And one of the great shocks to me is the growth of the tu form - in Peru when I was learning Spanish in the mid-70s, it was all very formal. True, a professor would tutear the students, but would expect the formal from them, but I find that tough when trying to think about other things But things have really changed socially with respect to levels of formality - when I was in Spain in 2004 and used Ud., it was really as if I had insulted someone - as if they weren't good enough to be my friend.

The class for today is mostly very basic, but very essential finance concepts. The first hour is a review of the basic financial instruments and their internal legal and economic characteristics - stock, bonds, preferred stock, convertibles - also options, futures, swaps, and the concetps of a derivative instrument. It covers the fundamental economic characteristics of any financial instrument or, for that matter, any contract - the allocation of risk, return, control, and the cost of capital implied by the other three. The second hour discusses the issuance and underwriting of a security, stock specifically, in the primary market - how does underwriting work and who are the players? The third hour introduces the variety of international financial markets - capital markets, risk markets, etc., not so much as actual physical markets, but as functional markets that use the different financial instruments in different ways - eg, stock can be used as fundamentally capital raising but it can also, in other contexts, be used as an instrument in the market for control - or both at the same time.

It's cloudy and pretty cold today in Santiago - it's peculiar, one moment I'm reasonably warm and the next I'm chilled. I think it might have something do with the moisture in the air - after all, the temperature is in the 50s. I like Santiago, what bits I've seen of it, and tomorrow and Friday I plan to spend more time looking around. And I'll take a few pictures and post them.

Tuesday, July 17, 2007

Santiago will be dark by 6:00 pm

Which is, truth be told, very disconcerting if you just arrived as I did from mid-summer in DC.  It has been a while since I've been in winter in the southern hemisphere.   The snow capped mountains just above the city look entrancing but alas I won't have time to go up there on this trip.

I am one of those mood-light sensitive people, and winter drives me crazy in DC. I wish I were out West in the high desert with lots of sunshine even if it is cold. In the deep winter, I Have My Doubts that the sun will ever return. Heard of the Aztec New Fire Ceremony? Big worry about the sun not showing up, so sacrifice someone very, very special - rip the heart out and relight the fires. I have to admit that I am quite sympathetic to the whole concept, at least in the mid-winter blues and blahs.

The photos are just playing around with blogger and my new built in web cam - I will maybe delete them later, I look like, well, that too and like I just got off a 14 hour flight and no sleep.

Roger Alford noting Amos Guiora's forthcoming article on national security courts

Roger Alford over Opinio Juris notes Amos Guiora's forthcoming Catholic University Law Review article on national security courts - a comparative approach which has much to recommend it. I will look forward to reading the article. Here's Roger's post:

***(I can't figure out how to do links on blogger using mac ...)

Continuing the discussion on the establishment of a domestic national security court, be sure to check out Amos Guiora's post over at National Security Advisors law blog outlining his recent article forthcoming in the Catholic University Law Review on a "domestic terror court."

The article is very useful because it takes a comparative approach that examines the practices of holding detainees in the United States, Russia, Israel, India, and Spain. Here is a key quote from the conclusion of the article:

The United States, post 9/11, clearly represents the extreme end of the spectrum--terrorists are enemy combatants to be detained in Guantanamo Bay, Abu Ghraib or so-called "black sites."... Unlike Israel, Russia, India and Spain, which regularly try terrorists, the Bush Administration's intial handling of the fundamental issue ... has resulted in a clear policy failure. By over-reaching, by establishing a judicial paradigm inconsistent both with Article III requirements and international law guarantees, the Administration opened the door to wide-spread criticism, which was not long in coming. While the U.S. continues to hold hundreds of detainees for trial, terrorist defendants held by the other nation's surveyed in this article have been brought to trial in accordance with the traditional criminal law paradigm or detained in accordance with an administrative law process subject to independent judicial review.

Monday, July 16, 2007

Letters to editor of NYT re Goldsmith & Katyal on National Security Court

Letters to the editor at the NYT, Monday, July 16, 2007, responding to Goldsmith and Katyal on the broad proposal for a national security court. Letters include Human Rights Watch, the Center for Constitutional Rights, and the ACLU:


Jack L. Goldsmith and Neal Katyal are correct that the current system of detaining terrorism suspects at Guantánamo Bay (or in secret C.I.A. prisons) without charges or trial has been a legal and political disaster. But their proposal to create a special terrorism court with power to authorize preventive detention is not the right solution.

Under their proposal, suspects could be interrogated without access to lawyers, proceedings would be less public than in an ordinary criminal trial, and suspected terrorists could be detained indefinitely even if they have not committed any overt criminal act.

Professors Goldsmith and Katyal offer no standard or procedure for determining who is a terrorist. They do not explain why we can no longer rely on the criminal courts that were able to try and convict the first World Trade Center bombers. And their suggestion that suspected terrorists apprehended in the United States or abroad can be treated like traditional enemy combatants captured on a battlefield was recently rejected by a federal appeals court.

The effort to create a new legal system from scratch is what led the Bush administration into the current legal morass. We should not repeat that same error again.

Steven R. Shapiro
Legal Director
American Civil Liberties Union
July 11, 2007


Jack L. Goldsmith’s and Neal Katyal’s article is a terrific proposal to deal with the vexing problem of how to run a system of preventive detention for terrorists. They recognize both that our current system has evolved in a direction that is hurting the reputation of the United States around the world and that an ordinary criminal law model of handling terrorist detention will not work in time of war.

What is needed is a special Article III federal court with the power to preventively detain those who are dangerous and to try those who have committed crimes. Such a court must be set up by Congress, which must recognize that there are terrorists who need to be detained for the public safety even if they could not be prosecuted under all the elaborate rules of the criminal law that we apply to domestic criminal cases.

Terrorist detainees deserve more due process than they are currently getting but less than domestic criminal defendants. It has been nearly six years since the Sept. 11 attack, and it is time for Congress to set up such an Article III court. Congress must step up to the plate.

Steven G. Calabresi
Chicago, July 11, 2007
The writer, a co-founder of the Federalist Society, is a professor of law at Northwestern University.


To the Editor:

Jack L. Goldsmith and Neal Katyal call for creation of a preventive detention system. We already have that system at Guantánamo. The idea of making this system permanent and more acceptable by adding some bells and whistles — a special national security court — is going in the wrong direction. It is contrary to American values and will ensure the continued negative consequences of the current policy that the authors refer to in the article: harm to our reputation, disrupted alliances and the “war of ideas with the Islamic world.”

Preventive detention cuts the heart out of any concept of human liberty; it permits the state to imprison people who have not committed any crime and to do so outside of the rules of a criminal law system that has been with us for more than 200 years.

No domestic or international law permits preventive detention under the current circumstances. The International Covenant on Civil and Political Rights, a treaty binding on the United States, permits it only in the most drastic of circumstances when the actual continued existence of the nation is threatened. Even then, a situation we are not facing, the detentions must be of an exceptional and temporary nature — not potentially forever. The treaty expressly prohibits indefinite detention without charges and trial.

The right direction is to close Guantánamo and other preventive detention centers: detainees need to be either charged and tried or released.

Michael Ratner
Center for Constitutional Rights
New York, July 11, 2007


To the Editor:

Jack L. Goldsmith and Neal Katyal suggest that the United States, to protect itself from terrorist threats, must create a system of preventive detention to jail people who are considered dangerous but who have not committed an overt criminal act. What they do not explain convincingly is why existing federal courts are not already adequate to deal with terrorism suspects.

The current system is not, as they suggest, overburdened, nor is it incapable of dealing with classified evidence or evidence collected abroad. On the contrary, scores of terrorism suspects have been successfully prosecuted in federal courts, including based on testimony obtained abroad, and many more could be.

Likewise, Professors Goldsmith and Katyal do not show why, if there are deficiencies in the existing system, it isn’t better to simply correct those deficiencies, instead of creating a new legal system and one that severely undermines civil liberties.

The government’s misbegotten experiment in military commissions stands as a warning that building new and untested processes for handling terrorism suspects can backfire.

The existing federal courts system has weathered extraordinary threats to the nation over the last 200 years: terrorist bombings by the Klu Klux Klan and other domestic groups, violence by the Mafia and other criminal syndicates, mass labor unrest, a civil war and two world wars, among other crises. Many generations think they have faced the worst threat in the nation’s history, but the federal court system has outlived them all.

John Sifton
Senior Researcher on Terrorism and Counterterrorism
Human Rights Watch
New York, July 11, 2007

Sunday, July 15, 2007

Boulevard of Broken Dreams is locked in my head

... and it is driving Jean-Marie and Renee crazy, because I am (apparently) humming it absently mindedly continuously, including (apparently) during Mass today. I don't even like the film Moulin Rouge, old version or new. It is the Marianne Faithfull version that caught me - hadn't heard it since the 1980s - this is why iTunes is dangerous. It plays awfully nicely on cello, in any of three octaves - d minor, sliding, sliding, sliding all the way up to a very high A on the A string. I'm a sucker for this kind of stuff on cello or violin. Two or three cellos would be very, very cool with this. Okay, I wonder if I can make a trade with Renee ... she plays this on her cello with me, and I offer to play the bass line of her Buffy the Vampire Slayer The Musical, Once More With Feeling? Hmm.

Teaching in WCL's Chile Spanish language 'magister' program

I'm off tomorrow to Santiago, Chile, to teach international finance and business law for a week in WCL's Spanish language "magister" LL.M program, which is for students in Latin America and taught in Spanish, sometimes with translators and sometimes with Spanish speaking instructors. I'm doing something I hope is ambitious and not foolish, which is to do it in Spanish. I've spent a fair bit of time going over my materials and making sure I've got the vocabulary from a couple of Spanish language business and finance dictionaries. My accent is terrible, and my grammar not entirely royal academy. But I think on balance it is good enough at least to try and do it in Spanish and not have things intermediated by translation. Hope this doesn't turn out to be a big mistake.

Long plane ride to Chile in coach. So Jean-Marie and Renee got me, as a father's day gift, a new little MacBook - the smallest and cheapest and least powerful. I much prefer my desktop for working and writing, but the family laptop I had been using for the past four years - and which served us very well as a family computer in Sevilla - still works fine, but is too large to open on an airplane. What with shrinking seat distances, etc. It would be so great to be rich and travel business class. I might see travel in a very different light. Anyway, the little MacBook is very nice. One reason I went with Apple for the first time is that, even though more expensive, I just don't want to get involved with Windows Vista. Maybe we'll gradually just migrate all the family computers that direction, I don't know. But even this little cheap version is a cool machine.

Jean-Marie and I went and saw the new thriller Joshua this afternoon in Bethesda. Hmm. I don't myself see what the critics were all raving about. A thriller needs a resolution that consists of something more than the situation careening downwards out of control - hitting rock-bottom and then rolling the credits. That was the supercool twist of "thrillers" in the 1970s - they just end, like Picnic at Hanging Rock, for example, with no explanation and no resolution, ta-da. Or, in another genre of thriller, the remake of Invasion of the Bodysnatchers with Donald Sutherland - just when you're wondering how the clever filmmakers are going to pull the rabbit out of the bag - boom, it's over, there is no clever ending, just aliens take over the earth - big whoop. I can do that movie, for heaven's sake, and so can you. Joshua's writers and director don't seem to understand that being a thriller and simply being a depressing moving that heads downhill for a while and then just crashes and sits there, dead, and a "thriller" are not the same thing.

Wednesday, July 11, 2007

Outlining my revamped corporate finance course

Here's the overview for students of my newly revamped corporate finance course. As I said in another post, for various reasons, including the good availability of a math primer course at the law school that covers basic finance math, I don't do that stuff in this course - I used to, but it was a big mess with only a couple of class sessions to spend and a heterogeneous class of 90 students. So, here is the current approach.

(In brackets I have included a number of hypothetical "markets" which have an effect on students, such as the labor markets or the markets in cultural production or the markets in personal relationships such as marriage - we don't study those, of course - this is a course on business and corporate finance - but I do include them in the overview of functional markets as examples of markets in which people participate without necessarily thinking of them as markets, such as marriage or art. Apart from getting students to think about a wider variety of things as having a market aspect, it also helps students to understand what I mean by "functional" markets in the business sector, such as the market for corporate control, which is nowhere an actual, physical market as such, but a market function carried out through proxy financial instruments such as stock.)

A Financial Instruments and Functional Financial Markets
Approach to Corporate Finance

(* means a core part of the course. [Bracketed] markets are there as examples of things not ordinarily thought of as markets, but which exhibit certain market characteristics - we won't be studying those, but they are present as examples. Markets with neither a * nor brackets will be touched on in the course of discussing other kinds of markets.)

The Market for Corporate Capital-Raising*
Equity Instruments
Common Stock
Preferred Stock (topic held over until later)

Debt Instruments
Bilateral Lending
Multilateral Lending and Public Issuance of Corporate Debt
Corporate Debentures
Corporate Bonds
Indentures and bond convenants
Multilateral Lending and the Private Placement of Corporate Debt
(held over until Private Equity discussion)

Preferred Stock
as Hybrid of Equity and Debt

Convertible Instruments
Convertible Debt
Convertible Preferred Stock

The Market in Credit (folded into Debt Instruments discussion)
Review of Debt Instruments
Other borrowers and lenders
Bank lending
Private equity lending (held over until Private Equity discussion)
Government and municipal bond debt
Securitization of credit assets (held over for securitization discussion)
The concept of leverage as an aspect of debt/credit
The option relationship of risk, return, and control in debt instruments

The Market in Securitization*
Securitization and periodic payments generally
Mortgage securitization
Credit card receivables securitization

[The Market for Services and Labor]
The market for corporate/entity services
The market for personal services and labor
Employment and unemployment; wages and inflation

[The Market in Love, Relationships, Marriage, Family, and Social Reproduction]
(No, we won’t be dealing with this at all, but listed for completeness.)

The Market in Real Property
Real estate markets and credit markets
Residential real estate markets
Commercial real estate markets
The integration of real property markets and other financial markets

The Market in Risk-Allocation and Derivatives*
Speculation and hedging and leverage concepts
Derivative securities generally
Forwards/Futures Contracts
Interest rate risk markets
Currency rate risk markets
Insurance markets

The Market in Commodities
Commodities markets in tangibles
Commodities markets in intangibles
Currency and forex markets
Private contractual transactions for sale of goods, services, everything

[The Market in Innovation and Intellectual Capital]
Intellectual property
The market in human intellectual capital and its educational reproduction

[The Market in Cultural Production]
Consumption and brand

[The Market in Political and Regulatory Power of Government]
Lobbying and the legal market
Bribery and the illegal market
The market in government monopolies and oligopolies

[The Market in Failure]
Entity bankruptcy and creditors' rights
Vulture funds and private equity
Personal insolvency, bankruptcy, and default

The Market in Corporate Control*
The problem of the public company
The LBO cycle

The Market in Private Equity*
The Private Equity cycle
Hedge Funds
Public companies, private equity and why the LBO cycle?

This course approaches corporate finance from two vantage points. First, what are the functional financial markets in the business world – not necessarily actual, real markets, but conceptual and functional markets for allocating resources? We will focus mainly on capital raising, credit, risk markets, securitization, control, and the private equity alternative, with less attention to the others listed. Second, what are the concrete financial instruments by which those functions are carried out, by which those functional and conceptual markets operate to carry out such functions as allocating corporate control, allocating risk, etc.? We want a practical understanding of the increasingly complicated instruments of finance – the contracts and agreements that underlie finance. But those instruments don’t make sense and don’t mean very much unless they are understood in the context of the financial market functions which they enable.

Functional financial markets and operational financial instruments, in other words. In the outline above, I have laid out a wide variety of markets in our social world, some of which have to do deeply with corporate finance in the traditional sense, others of which – even though, like the market in cultural production, are deeply involved with the business world, such as media conglomerates – do not seem to have much to do with the usual sense of corporate finance. They don’t, not in the traditional sense of stocks and bonds, and in fact we will leave them aside. But I list them for completeness’s sake – and also to emphasize that although we will not study them, in today’s financial world, in fact many of these supposedly unrelated “markets” in things like art or sport are, of course, big corporate business and are intimately tied up with “traditional” corporate finance of stocks and bonds.

Not so long ago it was considered astonishing that David Bowie would, so to speak, “securitize” himself, in the sense of selling for a price today the estimated revenues of his future record sales and royalty payments on his songs – a hybrid of art, entertainment, media, and very traditional finance – and nowadays it is a routine transaction. We are not going to spend the course thinking about marriage and family and art and all those other bracketed items above as “markets.” We will remain focused on corporate finance, broadly construed - this is a survey course, and it already covers a dizzying array of markets and instruments, in very quick-fire fashion. But I want us to be aware of how a functional markets approach includes more things that one might have thought, at least in principle. There are of course many others we might have included - markets related to development finance, for example, such as microcredit.

We will seek to understand the core financial markets and instruments against a fundamental question – why public companies for the deployment of these instruments in these markets, rather than private companies? How is it that business entities that separate ownership from control of enterprises, as public companies do, survive over private companies which unite the two? And why the LBO cycle moving capital back and forth between the two models of ownership and control? Those are vital questions today, as hedge funds and private equity takes on a more and more massive role in the economy.