US Supremes decide Boumediene: MCA cannot substitute habeas corpus, GTMO under defacto US control

http://www.scotusblog.com/wp/court-gives-detainees-habeas-rights/

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.

The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act — as the Bush Administration had suggested — to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.

The Court also found serious defects in the process that the Pentagon set up in 2004 to decide which prisoners are to be designated as “enemy combatants” — the status that leads to their continued confinement. This process is the system of so-called Combatant Status Review Tribunals. The procedures used by CSRTs, the Court said, “fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”

Justice Anthony M. Kennedy’s opinion for the majority in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) was an almost rhapsodic review of the history of the Great Writ. The Suspension Clause, he wrote, “protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.” Those who wrote the Constitution, he added, “deemed the writ to be an essential mechanism in the separation-of-powers scheme.”

Even though the two political branches — the President and Congress — had agreed to take away the detainees’ habeas rights, Kennedy said those branches do not have “the power to switch the Constitution on or off at will.”

In a second ruling on habeas, the Court decided unanimously that U.S. citizens held by U.S. military forces in Iraq have a right to file habeas cases, because it does extend to them, but it went on to rule that federal judges do not have any authority to bar the transfer of those individuals to Iraqi authorites to face prosecution or punishment for crimes committed in that country in violation of Iraqi laws.

In order to adequately understand the relevance of the Court's decision, some background might be helpful:

The Bush Administration's Camp X-Ray regime was designed from the outset to be a kind of legal limbo for detainees there, because of the peculiar status of Guantanamo Bay, which is a US naval base with exclusive jurisdiction, that is nominally still part of Cuban sovereignty. This status is precisely what made it a desirable location for the Administration's detainment and interrogation policies for terror suspects, because they have unfettered control whilst still being "formally" extraterritorial for the purpose of judicial review of its actions there. This effective legal "black hole" has been widely considered by many scholars, and even JAG lawyers, to be a disgraceful attempt to act beyond the law.

Previously, the Court in Hamdan had considered this issue in terms of the Administration's inherent authority to set up special military commissions, and examining their compatibility with the Geneva Conventions, and particularly Common Article 3, as well as the Uniform Code of Military Justice. In Hamdan, the Court determined the Administration did not have such authority without a Congressional legislative regime, and ruled that the existing regime there was in violation of the CA3, the UCMJ and other relevant international law. However, Hamdan was minimalist in that it still left it open to the Administration to seek a legislative regime to adequately authorise the Commissions, with compliant safeguards and procedures, and so the Military Commissions Act was born in response.

The MCA was an improvement on the previous arrangement, (supported by John McCain btw), but hardly by much. It denied the Appeals Court jurisdiction over habeas corpus petitions, and was applied retroactively to existing petitions under consideration, which was widely considered a violation of ex-post-facto principles. It left in place the Combatant Status Review Tribunal which was an entirely arbitrary process. It allowed the regime of indefinite detention without review to continue, and the Commissions themselves still suffered serious defects as to procedural fairness and evidentiary processes which fell well short of the standards accepted at military levels, in terms of Courts Marshal, and accepted international norms - including over matters such as access to lawyers, the discovery process, and the admissibility of evidence procured through torture. There was also very strong evidence that the administration was interfering in the process, and that senior presiding appointees were strongly prejudiced to find convictions at all costs (see below).
http://harpers.org/archive/2007/10/hbc-90001549
http://www.harpers.org/archive/2008/02/hbc-90002460

According to Col. Morris Davis, former chief prosecutor for Guantánamo’s military commissions, the process has been manipulated by Administration appointees in an attempt to foreclose the possibility of acquittal. Colonel Davis’s criticism of the commissions has been escalating since he resigned this past October, telling the Washington Post that he had been pressured by politically appointed senior defense officials to pursue cases deemed “sexy” and of “high-interest” (such as the 9/11 cases now being pursued) in the run-up to the 2008 elections. Davis, once a staunch defender of the commissions process, elaborated on his reasons in a December 10, 2007, Los Angeles Times op-ed. “I concluded that full, fair and open trials were not possible under the current system,” he wrote. “I felt that the system had become deeply politicized and that I could no longer do my job effectively.”

Then, in an interview with The Nation in February after the six Guantánamo detainees were charged, Davis offered the most damning evidence of the military commissions’ bias–a revelation that speaks to fundamental flaws in the Bush Administration’s conduct of statecraft: its contempt for the rule of law and its pursuit of political objectives above all else. When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes–the man who now oversees the tribunal process for the Defense Department. “[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.’”

In light of these ongoing and serious defects in the Commissions process, the Boumediene decision marks another important step towards justice - winding back the administration's lawlessness. The Court has effectively given the Administration a rebuke in its attempt to replace habeas corpus, and deny jurisdiction over its writ, through the MCA.

In my opinion, the use by the majority of a functional approach to extraterritoriality is very welcome, and can be likened to the way a court, in any Western legal tradition, will "pierce the corporate veil" when someone tries to incorporate as a single director/shareholder simply to avoid their obligations. In law, at the first instance, they may have a company with formally separate legal personality, but the Court is open to make a determination on the substance that this is really a sham device used purely to avoid obligations and liabilities. In my opinion, allowing the indeterminacy of Guantanamo Bay's formal sovereign status to dictate total inaccessibility to the habeas corpus writ, would be to rely on a similar sham, especially given the unique situation of exclusive US jurisdiction there. For the same reasons, it demands a practical and substantive response from the judiciary, not adherence to formalistic dogma. There is no serious question in law that detainees would have such access if they were flown to a military base in Florida, and that is precisely the reason the Bush Administration has resisted calls to close GTMO and move them to US sovereign territory. It seems an obvious absurdity to allow such a polite fiction of Cuban sovereignty to dictate fundamental rights.

So, the Court here has finally remedied the issue in a common sense way, although we don't know whether this functional approach will apply in US military bases beyond GTMO, such as Bagram, or elsewhere. Though it is doubtful the precedent will be as expansive as some conservatives fear.

The dissents in the case came from Scalia J, Thomas J, Alito J and the new Chief Justice Roberts. As the former 3 justices are all reliable apologists for unchecked executive power on the Court, there are no surprises there. However, Roberts CJ has previously demonstrated that he was capable of a close reading of individual cases, and even to stand up against Executive overreach, so I had hoped that he would look at the Guantanamo Bay territorial issue, and the problems with the Combatant Status Review Tribunals, through those eyes. Instead he relied on the dogmatic adherence to GTMO's formal status, used a poor argument about exhaustion of remedies about the CSRTs, and applied a slippery slope fallacy about "unelected judges" interfering with the war on terror. So, I think that aspect of his judgement was pretty disappointing. Needless to say, it's not very heartening to see a learned Chief Justice pandering to the conservative base like that, and resorting to cheap talking points.

As for the majority, Kennedy J, the swing vote on the Court, led the opinion, with Stevens, Souter, Ginsburg and Breyer. The main feature of the decision, apart from the functional territoriality issue, was that it rebuked the running down the clock approach of the Bush lawyers, underlining the 6 year delay that is ongoing in bringing any hearing on the merits, which a dissent would not remedy, and stressing the unsatisfactory nature and reliability of the status determinations made under the CSRTs. Kennedy and the majority did not accept the Attorney General's argument that these were case-by-case defects, rather that inherent structural defects. This is very important, because we've often had a lot of huff and puff about enemy combatants being an accepted notion in military law, under the laws of war, but these arguments typically ignore the status determination requirements under Common Article 3 of the Geneva Convention, and the general international laws that apply to all natural persons.

Anyway, for those reasons the judgement is a rebuke against those who have tried to exclude the status review process itself from the debate, and focus on a false debate about uniformed soldiers, who would be POWs, versus terrorists, who don't wear uniforms, and so have no enumerated rights. All the arguments I've read along such lines, including our own Neil James, of the Australian Defence Association, appeal to the validity of the Enemy Combatant designation at first instance without ever addressing the fact that the determination itself has to be made by a properly constituted court, subject to adequate evidence disclosure and challenge, etc.

In this case, I think the justices in the majority were probably motivated by an underlying unwillingness to allow the Administration an alternative detainee approach which did not apply:

1) The Geneva Conventions, under Common Article 3 protections; or
2) Habeas corpus writ and court access to challenge
with international law principles applying in each case. *

*On that last point, as far as I know, the Court did not actually address the notion that the lex specialis (special law) of humanitarian law could displace other universal human rights law obligations that may still co-exist and supplement the application of special laws, but I am extremely doubtful of the validity of the kind of narrow view adopted by likes of John Bellinger, for the US Office of Legal Counsel, and David Addington, who maintain that lex specialis sends otherwise applicable human rights laws into the void. The immense xenophobic political pressure currently placed on the Court not to cite or argue based on "foreign law" might be the reason for this.

So, the message the Court seems to sending the Administration is that they've had six years to deal with these questions on their own terms, in proximity to the exigencies of 9/11. Before now, the Court, in deference to the Executive, might have been prepared to subjugate the immediate interests of the detainees in a fair and expedient trial, but no longer. It's clear now that the Administration could not or would not establish an adequate and robust system. With the Military Commissions Acts, and the DTA, after Hamdan, they did not create anything that could adequately substitute for habeas corpus, and they certainly did not suspend it validly under the US Constitution (which requires little short of civil war or disaster). The Administration simply relied on the validity of the status review determination, at first instance, which could not be meaningfully challenged by the detainee, and tried to assert a mushy category of "illegal enemy combatant", which was not determined properly, and enjoyed no baseline protection under floor of Common Article 3, and could somehow not enjoy any other rights or protections under civilian, or international law. In this way, they justified detention of suspects, without review, for as long as the overblown rhetoric of the war on terror implies - that is, with no foreseeable end.

There are still many unresolved questions, but this is a very good start.

Chasing Truman Tropes

It's fairly common practice for failing politicians to attempt to rescue their legacy by trying to liken themselves to Harry Truman. Truman offers a compelling target because he won an election he was predicted to lose in 1948, and the critical assessment of his Presidency at the time was soon rejected by historians, such that he is now regarded amongst the best Presidents of all time. Bush and Rove have tried it a number of times already, but now former Liberal Party adviser, Josh Frydenberg, has attempted to do the same for our very own man of steel: A past victory has lessons for the present.

But any student of history must surely scoff at Fydenberg’s attempts to liken Howard’s political moribundity to the great wartime President. Howard’s policies may have encountered political opposition before he won the Senate, but the reality is he was handed a period of unparalleled prosperity and a generally uncritical media, and the best he can claim is to have fiddled at the edges of economic reform. Elites may have got Truman wrong at the time, but he emerged triumphant in history because he faced a hostile media and Congress, and still managed to establish the new global collective security regime under the UN, rebuild Europe, create NATO, and lay the foundations for winning the Cold War.

The most insulting thing about the comparison is that Howard’s major foreign policy engagement, the Iraq war, was initiated in a way fundamentally incompatible with Truman’s legacy. Unlike Howard, Truman understood that the best way to advance Western interests was to ensure other players in the international community internalised the values of the West through a credible, consistent and universal application of the rule of law, which formed the basis of the new collective security regime. With Iraq, Howard spurned this legacy, and the Atlantic Charter consensus laid down by his hero Churchill, and instead appealed to ad hoc exceptionalism - one rule for us, another rule for everyone else.

Three Criticisms of International Law

A conservative guest blogger at the internaltion law blog Opinio Juris has compiled a useful list of the three main critiques of international law.

1. The Rational Actor Critique: In their book, The Limits of International Law, Jack Goldsmith and Eric Posner express skepticism that customary international law often influences the conduct of states. States are rational, self-interested actors and it is difficult for custom to reflect stable equilibria that reflect their continuing interests. Customary international law has much less scope than widely thought, and even when it exists, it is usually unstable.

2. The Political Process Critique: The process by which the content of customary international law is determined is nondemocratic, and provides little reason to believe that customary international law will maximize welfare, at least in comparison to judgments by the democratic branches of the political branches of the United States. This is obviously true when international law concerns matters with insubstantial spillover effects among nations, like the death penalty. Even when there are spillovers, the United States seems to have better incentives to provide international public goods for the world than the process which creates international law. Ilya Somin and I make this argument in Should International Law Be Part of Our Law?

3. The Sovereignty Critique: In a world where there is no collective enforcer of collective security, international law rules that seek to prevent a state from defending itself are dangerously utopian. On such fundamental matters, peace is more likely to be maintained if every sovereign (and the United States in particular) retains the discretion to act for itself. Jeremy Rabkin makes such points in his book, The Case for Sovereignty.

If the first critique proves accurate, one might believe that the second and third are largely superfluous, because customary international law may have little influence. Nevertheless the second and third critique might still be important if judges attempt to incorporate international law into an effective domestic system. The second critique might be sympathetic to international rules forged by treaties when these treaties are democratically ratified. The third critique, in contrast, might well reject being bound by treaties on some subjects. The second critique might also welcome the application of international law in dictatorial or totalitarian systems, on the theory that norms generated by international law are superior to the norms generated in such political systems. I invite readers to offer other forms of skepticism, regardless of their agreement or disagreement with their content.

In the comments sections Benjamin Davis provides a step-by-step rebuttal. He's done such a good job, I have posted his response below.

On 1) as I said when I rejected the soundness of their reasoning at the time, the Goldsmith and Posner book on the Limits of International Law simply steps over the ENTIRE European construct. It is not serious or credible as a work.

[Ed. note: A good critique of the specific claims made in Goldsmith & Posner's book can be found here. For other broader critiques of the whole rational choice model the following works are useful:

• Christine Jolls et al, A Behavioral Approach to Law and Econoimcs, Stanford Law Review (abstract only)
• Pathologies of Rational Choice Theory: A Critique of Applications in Political Science
• Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, Californian Law Review (2000) (full paper available) ]
  

On 2) in a system based on states with a variety of internal forms the nondemocratic critique is a canard. Democratic processes are not guarantors of maximizing welfare (do I have to speak about segregation in the south and slavery?). The point is that the search for the general practice of states and opinio juris takes into account the variety of forms of states. In the considered wisdom of all the states including the United States in acceding to the Statute of the ICJ we recognize customary international law as law to be applied. Clearly in that bargain states consider that such law has some value to them. You take a far to United States centric view of international law. What about customary international law as a public good that all states are providing to each other - not just a US to the world phenomemon.

On 3, what international law rules are those that prevent a state from defending itself? Article 51 of the UN Charter enshrines that idea. Customary International Law also enshrined that. Rules that say you can not massacre civilians and all that in the laws of war may prevent a state from massacring civilians. That is because such massacres are considered barbaric and international law (treaty or custom) recognizes them as international crimes. I know of no rule that prevents a state from defending itself. What international law might do is say that you can not just say and do anything and call it self-defense because otherwise states mask aggression with self-defense. We saw that in WWII and it is a bad idea. Trust us is not good enough in an international system of states.

What I feel you are really saying is that you want a world where might makes right. That is certainly your prerogative to preach but my sense of history is that who is mighty and who is not evolves overtime and pushing for stable rules helps to mediate those dynamics in a way that preserves some peace and order. We had revolutionary regimes in the Soviet union and China that burned out of their fervor to step outside of international law. I expect that will happen also to those who have been for the past 6 years eagerly trying to spread a weird kind of nihilism. The end game of that is in the sands of Iraq right now.

At a time of massive attack on international law by esteemed persons like yourself in the United States (which is to the dismay of many in the United States and around the world) I fail to see the utility of encouraging a skepticism.

Obviously, international law is a human endeavour and so must be imperfect and have an imperfect history. But so what? The point without being utopian is to articulate from state practice and sense of obligation rules that have meaning between states. Rules provide some stability or at least the appearance of what is acceptable state behavior.

Might I ask why is there such an unwillingness to even recognize horizontal enforcement between states or vertical enforcement within a state of international law norms? Americans who say torture is against the law as a matter of international law can make the US comply with that rule whether or not it is an internal American rule through the democratic political process (voting out torturers and prosecuting those who torture). Similarly, when the US sought assistance with the Iraqi High Tribunal no other states were willing to help. Why? - because the invasion was considered in violation of the UN charter. Refusal to help or modest assistance are examples of resistance to what is considered an illegitimate and illegal act. I would think these are simply unremarkable points to make.

Bush now denies official policy of deBaathification

The decision to disband the Iraqi army, after substantive war operations had finished, is now widely regarded as one of the most blatantly wrong-headed errors made by the Bush Administration in its efforts to establish a semblance of stability in the post-war occupation. It immediately jeopardised the claims of the Americans that they were there as liberators, and disastrously pushed thousands of trained soldiers in to the arms of the insurgency.

In the past, this decision has been righteously defended by the usual apologists, so we've had no reason to ponder its status as a deliberate decision. But recent comments by Bush try to muddy the waters on this. Apparently Bush now avows all knowledge of this decision as being his administration's official policy, despite the fact that it was executed by his appointee Bremer, with documentary evidence proving he was fully aware of the policy.

Obviously, given how gungho key insiders, such as Wolfowitz and Rumsfeld, were for the policy of deBaathification, it is impossible to create any kind of distance between his administration and the decision to disband the army, regardless of what Bush actually knew or didn't know. However, the scary thing is that Bush may very well be so stupidly aloof that even when he knows things, he doesn't really understand or drive policy in any significant way. If this report is to be believed, the decision may have been made by a relatively low level national security adviser: Walter Slocombe.

The establishment media, including moderate liberals, have always tried to shield Bush from too withering a criticism of his capabilities and intelligence. It couldn't possibly be, so they say, that Bush really is the idiot his critics allege, given he is so wealthy and has won two US elections. Their public pretension at a bourgeois meritocracy, and the benignity of US power, simply cannot countenance that a grotesquely thoughtless fratboy could become the leader of the free world. Well, I think these kind of revelations make their attempts to garner bipartisan respectability by rescuing Bush's reputation, and attacking the left, appear all the more foolish. I'm looking at you Jon Faine! No doubt posterity will reveal an even more brutal assessment of Bush. Although given how softly a proven airhead like Reagan is treated now, I probably shouldn't be too hasty in counting on that possibility.

Unlucky Beazley?

DUMPED Labor leader Kim Beazley insists he would have defeated John Howard at the next election and says Kevin Rudd is a lucky man in the right place at the right time.
(Article)

Whilst the times certainly didn't favour Beazley, his problem was not just bad luck. Even with 9/11, he made too mistakes to count which themselves denied the Labor party a chance of winning.

He was ineffective at pressing the Government's faults. He failed to capture the media cycle with his own agenda. Even Latham did better at this for a while. In economic policy, he was reactive and failed to dispute the Government's interpretation of history and present. In social policy, he fell into Howard's wedges time and time again. He compromised with small target politics, but didn't balance it with articulate challenges of principle.

Even where Labor's foreign policy platform had the benefit of public appeal, it was Rudd articulating it, not Beazley. In general, he could not stamp his mark as a better leader, and plodded along to the election with predictable blandness.

Ultimately, I think, people just stopping listening to him, as they seem to be doing to Howard now.

Christian Zionists?

Anyone who takes more than a passing interest in politics has probably noticed the somewhat puzzling special relationship that has formed, in recent times, between hardline Israeli Likudniks and right-wing evangelical Christian groups.

But the fact that both groups share a belligerent conservative mentality, should not divert us from asking basic questions about the sincerity and coherence of this alliance. Why, for example, do Christian fundamentalists support Israel, how do they actually view Israel, and what are the implications for Jews of this support?

Christians, Jews in Holy Land alliance

MELBOURNE, Florida (CNN) -- Sondra Oster Baras is an Orthodox Jew doing an unorthodox job.

"If you had asked me 10 years ago what I would be doing with my life, I don't think I would have told you I'd be in church," she said.

Baras stumps for money from evangelical Christians to support Jewish settlements in the occupied territories -- land she calls biblical Israel.

A recent stop finds her in Melbourne, Florida, visiting Pastor Gary Christofaro at his First Assembly Church of God.

Christofaro and his flock take their Jewish roots so seriously that on Friday nights they observe the Jewish Sabbath with Hebrew prayers.

This is not just religious ritual. They support Israel -- which to them includes Jewish settlements on the occupied West Bank. Church members tour settlements with Baras and have donated more than a $100,000 to support them.

"If it wasn't for what the Jews brought to Christianity, there would be no Christianity," Christofaro said. "There is a promise to those who bless Israel to be blessed. Those who curse it will be cursed."

Christofaro and Baras are part of a growing alliance between evangelical Christians and Israelis.

A recent poll found that 59 percent of American evangelicals believe Israel is the fulfillment of biblical prophecy.
God's Warriors

The Israeli Ministry of Foreign Affairs estimates 85 million evangelicals believe God tells them to support Israel -- more than six times the world's Jewish population.

One of the most successful Jewish fundraisers, Rabbi Yechiel Eckstein, raised $39 million last year from Christian Zionists to fund human services and humanitarian work in Israel and the settlements.

Christian Zionists often converge on Washington by the thousands to lobby members of Congress in support of Israel.

Sen. Joseph Lieberman, I-Connecticut, was among the speakers at last month's convention of Christians United for Israel.

Personally, I can't say I understand why any Jew would accept money from these Christian fundamentalists, whatever their shared political beliefs. Such monetary support isn't driven out of an inherent respect for the rights of the Jewish people. Rather, it is based on a purely instrumental view of the Jews, which is tied to their dispensationalist doctrines. To these so-called Christian Zionists, Israel is only important in so far as it fulfils its ordained role in heralding and fermenting the end times. Naturally, this effectively dooms Israel to war and strife, and renders any effort at man-imposed peace impossible. It's just too bad for the Jews themselves on the ground.

You may think I exaggerate, but this explains exactly why their support for Israel is based around the continuance of illegal settlements, and not humanitarianism generally, or the pursuit of peaceful coexistence. Their support is always premised on continuing the conflict.

Here, it is important to recall the work of philosopher Immanuel Kant, whose famous and lasting contribution to ethics was to propose that respect for persons could never entail treating people as a mere tool for our own ends. Arguable this means such a self-serving view of Israel - as one big apocalyptic doomsday device - constitutes an offence as bad as, if not worse than, any anti-Semitic aspersion you've ever heard about them controlling the media. Indeed, it is not difficult to find echoes of other extremely caricatured views about the Jewish people, amongst such Christian groups.

Yet the Likud-right in Israel tolerate these people because of their money and political clout in Washington. Perhaps it really is out of a sense of desperation that they accept such tainted support, but one thing which cannot be denied, is that this is not a happy or natural Judeo-Christian union.

Mediocrity and Equality

There was an interesting op-ed by Peter Saunders, in The Australian today. Peter's article decries what he sees as a spirit of mediocrity holding back modern society.

Elitism should not be a dirty word

WHEN 19th century liberals such as John Stuart Mill made the case for extending individual liberties, they argued it on moral grounds. They believed human beings are put on Earth with talents and potentials which they are meant to develop and exploit to the full, so they urged us to improve ourselves by becoming better educated and more enlightened. To achieve this, they understood we needed to be free.

Notwithstanding the empirically false claim that there is no real inequality of opportunity anymore, this article makes some good points about the under appreciation of expertise and excellence in modern society. However, its attempt to attribute this malaise to some nebulous idea of PC egalitarianism is unconvincing at best.

Sure, we've all met people who hold wishy-washy beliefs about equality, and their beliefs may even be considered dangerous in the aggregate, but such anecdotes are a far cry from an adequate causal explanation. In trying to blame the entire culture of mediocrity on strawman hippies, Saunders not only grossly exaggerates their influence, he actively ignores more powerful and obvious explanations. For whatever the effect of this type of servile egalitarianism on our current culture, it is beyond doubt that the value of excellence can be retarded in other ways.

For instance, can there really be any doubt that the rise of anti-intellectualism, and vapid individualism, as assiduously cultivated by conservative politicians and shock jocks, has been harmful to political discourse? Years of investment, by the conservative movement, in trying to inoculate their agenda against the critiques of academics and intellectuals, whilst revelling in the politics of demagogy, has had a profound impact on shaping how we view excellence. Their politicisation of the public service, science and humanities has altered the public's trust and respect for the old intellectual classes, in the same way as their continual affirmation of the individual as a mercenary has altered how much we expect from each other and ourselves. Nowadays, these once revered gatekeepers are mocked as being "limousine liberals," "chaimpaign socialists" or "liberal elites" who are out of touch with the respectable middle.

Somehow, Saunders manages to aim his umbrage squarely at the symptoms of this false individualism, such as the superficial culture of celebrity and television programs like Big Brother, without finding any blame in the pathogen itself. He talks of a privilege focused culture, which doesn't demand more, but just cannot bring himself to make the connection between this state of affairs and the view of the indiviudal as self-made and obligation-less, which has been nurtured by his side of politics. Rather, it is "egalitarianism," and nothing else, which is to blame.

Saunders' exaltation of sport as the last bastion of celebrated excellence is another example of him missing the forest for the trees. For whatever the benefits of sport, and there are many, it cannot be denied that public obsession with sport, to the exclusion of all else, is soporific to informed political engagement. Far from being a pure expression of uncompromised excellence, that kind of imbalance simply reflects a public sphere which is calibrated wrongly, whereby the focus on one specific type of achievement effectively excludes other forms of meaningful excellence.

The end of the column does provide a good laugh though. Saunders finishes his piece by appealing to the wisdom of John Stuart Mill, which is meant to lend support to his crusade for rugged individualism. This would be all nice and authoratitive, of course, except for the small problem that Mill was a parliamentary liberal socialist, who explicitly rejected libertarian beliefs such as Saunders'. Indeed, if he was to roll in his grave about anything, it would probably be the thin vision of the individual offered as panacea here, and the soft treatment which is given to those who have done the real harm to our political discourse.

Rudd's war advice furphy

With the Government increasingly desperate in the lead up to the next federal election, Foreign Minister Alexander Downer has tried to neutralise Kevin Rudd's opposition to the unpopular Iraq war, pointing to a letter of advice he wrote to the Government.

Leaked letter shows Rudd approved of Iraq war
By Lincoln Wright
August 12, 2007 12:00am

A LEAKED letter from Kevin Rudd to Prime Minister John Howard shows the Opposition Leader backed Australia's involvement in Iraq in the aftermath of the invasion.

The November 2003 letter is at odds with Mr Rudd's more recent position, which is that Iraq is "the greatest failure of national security policy since Vietnam".

In the letter, obtained by The Sunday Telegraph, Mr Rudd told Mr Howard how to win in Iraq.

"Now that regime change has occurred in Baghdad, it is the Opposition's view that it is now the responsibility of all people of goodwill, both in this country and beyond, to put their shoulder to the wheel in an effort to build a new Iraq," Mr Rudd said in the letter.

Even though the Howard Government adopted the policies Mr Rudd recommended, the Opposition Leader now claims Australia's involvement in Iraq is a disaster.

Mr Rudd, then Labor's foreign affairs spokesman, recommended five new policies to Mr Howard.

But he made no mention of troop withdrawal, even though three months later, in March 2004, then Labor leader Mark Latham announced he would have the troops home by Christmas.

Mr Rudd's recommendations included:
• An immediate review of protective security arrangements for all Australian staff in Iraq.

• Deploying an appropriate number of trainers for capacity enhancement of the New Iraqi Army and the Iraqi Police Force.

• Public employment measures to soak up the idleness of young men from joining terrorist groups.

• Using the Australian Electoral Commission to help Iraq stage elections.

• A smooth transition of the Oil For Food program to ensure Iraqis had proper food and medical supplies.
All of these measures were eventually adopted by the Howard Government.
http://www.news.com.au/story/0,23599,22227378-2,00.html

News Ltd has jumped on the opportunity to taint Rudd's anti-war respectability, with the Courier Mail parroting the false gotcha under the headline "Rudd tripped up on Iraq letter." The article parses Downer's allegation of flip flopping, claiming the letter shows Mr Rudd supported the war before his current opposition.

But of course, the letter shows no such thing. Accepting some degree of collective responsibility for the consequences of a venture our forces helped initiate, and offering policy advice on how to achieve peace, is completely different from supporting the original invasion.

What makes the false dichotomy at the heart of the allegation particularly feeble, however, is it is evidently contradictory to previous arguments made by their corner. Indeed, where the public record is concerned, both the Government and News Ltd papers have not only clearly acknowledged that dissent is compatible with feeling moved by responsibility, they have actively argued war critics are morally obligated to separate their original objections to war from the exigencies of events on the ground, and in particular, the dangers of civil war. I am sure we are all familiar with the refrain. We must, they have frequently chastised, put aside our differences over the initiation of the war and move forward with the venture for the sake of the Iraqi people. Their own arguments, therefore, require the very distinction they seek to deny Rudd. So, it is completely disingenuous for them to turn around now, and try to set the bar for consistent dissent at precipitous withdrawal and total non-cooperation.

One can only speculate as to the brazenness of it all. However, I will say the fact that they're running with such a blatantly contradictory attack suggests neither the Government, nor News, has a high opinion of the public's intelligence.

For the sake of completeness, it is worth establishing the obvious fact that Rudd's situation is hardly unique. The war has no shortage of critics who've advocated policies other than a full and immediate withdrawal. There are many hundreds of senior policy wonks and academics in the foreign policy establishment who've opposed the war from the beginning, and yet offered policy proposals to fix it. The Baker-Hamilton group, Brzezinski and Scowcroft provide just a few prominent examples. If we follow the view under discussion here, no matter the deeply held convictions of these people against the premise of the war, the mere fact that they have worked on post-war Iraq policy makes them "war supporters."

That News has echoed this nonsense should be no surprise. When almost every political article you read in The Australian lately tries to attribute Rudd's success to his supposed conservatism, it betrays a certain insecurity in the Murdoch world about the potential traction of beliefs and virtues which are outside their ideological purview. Here, Rudd's anti-war respectability and pragmatic small 'l' liberalism cannot be credited for the shift in political winds. When you ground your political narrative in populism, this is doubly important because the fiction of "Middle Australia" would be exposed. With the Opposition on the cusp of taking power, and the creeping inevitability of history stacked against them, they must realise that tolerance of the Howard orthodoxy on Iraq and the War on Terror will soon be displaced by a more sceptical narrative, which is a lot closer to Rudd's position in substance. When that happens, even very skilful use of the stabbed in the back myth will not deflect or distract from their folly.

Rate rise schadenfreude

Ross Gittens, Economics Editor for the Sydney Morning Herald, has a good op-ed about the latest rate rise of .25 percent. With another rate rise on the horizon, it's worth revisiting the politics of interest rates, and how the Government's responsibility may be perceived.

The weird thing about modern elections is the mind-bending that goes on. Media and punters who spend 34 months in every 36 hanging on the Reserve's every word to see what it may do to rates suddenly switch to believing interest rates are totally within the politicians' control.

After all, it's the elected government that runs the economy, isn't it? Economic illiteracy runs rampant for five or six weeks.

So, although a rate rise would be terribly bad luck for Mr Howard, it would also be rough justice. Someone who's taken such liberties with the truth about the factors that influence interest rates was asking to come unstuck. Someone who's enjoyed such good luck on the economy was overdue for a bit of bad luck.

Think about it. He inherited the economy after Paul Keating had done all the heavy lifting of reform and suffered the partly reform-induced recession, after the worst of the recession had passed and just as the reform was about to start paying dividends.

He came to power after Labor's Accord had got wages back in line with productivity so that real wages could start growing again and just as the economic upswing was about to whirr the budget back into continuous surplus.

He arrived in time to enjoy the benefit of his predecessors' efforts to get on top of inflation and get nominal interest rates falling.

That led to a record property boom, in which house prices more than doubled.

And just as that boom was about to bust and leave a lot of unhappy people, a once-in-a-lifetime resources boom came along.

Really, he doesn't have a lot to complain about

The standard conservative response to any and all rate rises under the Howard Government, has been to claim that Howard only promised to keep interest rates comparatively lower than Labor. He did not, they emphasise, promise they would not rise at all.

Whilst this may be true, it is surely a glib summary of the issue. Even if we accept this technical interpretation of the promise itself, which is almost certainly not what the low SES mortgage belt punters who elected him in 2004 would have thought, this ignores all the criticism Howard copped for implying he had such control in the first place. That's the main objection, not that Howard broke his promise.

In relation to this, Gittens' comments are very accurate. Any fallout Howard receives over the rate rise is basically his own fault, as it was his political game in the first place which sought to take sole credit for low interest rates, and thus punish Labor.

Any glee from the Labor side of aisle, therefore, need not have anything to do with perceiving Howard as a failure. His lacklustre reform record compared to the Keating-Hawke years, and his woeful tenure as Treasurer, do that for us. Rather the "gotcha" type sentiment we've seen in response to the rate rise is a simple case of schadenfreude.

For if Howard was happy to benefit from the economic ignorance of voters to get him elected in 2000 & 2004, by taking undue credit for interest rates, it's only fair that he cop it when those same punters reflect those expectations back on him. This is a political bed Howard has made for himself, and now he has to lie in it.

Howard's disappearing outrage

A video has surfaced on YouTube showing Australian service members engaging in binge drinking and vomiting. Admittedly, that's not a great look by itself, but the real problem with the footage was that it showed one soldier wearing a KKK outfit, apparently for laughs.

Whether it was fancy dress or not, hasn't been confirmed, but the act surely warrants the same unequivocal reaction which greeted Nazi Harry.

Australian Defence Chiefs have roundly condemned the video, in contrast to Howard, who sought to downplay the incident as soldiers merely "letting off steam."

But is anyone even vaguely surprised that Howard's normally dependable moral outrage has evapourated in the face of provocateurs who display gross racial and cultural insensitivity? Even despite the fact that his conservative triumphalism would naturally disposes him towards the military, and political necessity, in fact, compels him to put a good face on moribund policy in Iraq, the soft treatment of such behaviour was never in doubt. Indeed, those imperatives are almost incidental to Howard's familiar dog whistle approach to politics.

Howard has a long and inglorious history of splitting hairs, and normalising xenophobic views. After he got rightfully slammed for his ugly comments about Asian immigration in the 80s, he has managed to conceal it better than many, but the slant of his views is unmistakeable if you care to examine it. His prejudice is a reliable lodestone for his stance, in issue after issue. Starting with his position on indigenous reconciliation and the history wars, native title, double standards on mandatory sentencing vis-a-vis federalism, and incredibly, opposition to sanctions and censure of Apartheid South Africa, it extends all the way through his career to Children Overboard, and his one-sided interpretation of the Cronulla riots.

In each case, Howard has been able to hide his overarching Anglo-centrism behind a façade of plausible deniability because his individual transgressions, when considered alone, are seldom considered sufficient proof of such a serious allegation. Indeed, the way criticism of Howard has tended to unfold over a long period of time, through piecemeal allegations and debate, has actually shielded him from a more thorough examination of his record. It's somewhat like political double jeopardy. Once there has already been an inconclusive debate on the issue, the media is reluctant to revist it. But nonetheless, if one connects the dots over the whole period of his political career, this common strand of prejudice is virtually undeniable.

One of the (hopefully) inevitable improvements of a potential Labor Government will be putting this particular Howard legacy, and the era of dog whistle politics that goes with it, to rest.

Envy, eh?

Julian Ku, resident conservative at the international law blog Opinio Juris, has commented on Michael Byers new book, questioning whether it is sustainable or coherent for Canada's intellectual and political classes to pursue internationalism by appealing to nationalism. This follows a piece where he suggests a kind of penis envy may be at the heart of Canada's third way politics.

"What's Canada For?" To Do Good in the World, Says Michael Byers

by Julian Ku

"What's Canada for?" This may seem like an odd question, but one to which Michael Byers, a lawprof at the University of British Columbia and director of the Liu Center for Global Policy there, has a clear answer. Canada should exist in order to pursue a progressive, international-law abiding foreign policy. So says his new book entitled: Intent for a Nation: What's Canada For, A Relentlessly Optimistic Manifesto for Canada's Role in the World.

I haven't got the book, but this summary seems to capture the flavor of Byers' recommendations: join international treaties and organizations (and push other countries to do so), act in accordance with international law, and resist "bad" countries (mainly, it appears, the United States) who tempt Canada into doing things like building missile defenses and laying landmines.

I'm not exactly enamored of Byers' views, but that what I find really interesting is that Byers seems to be using Canadian nationalism to bolster Canadian internationalism. This is a novel rhetorical trick, but one that I think Canada is particularly susceptible to (as I observed in a post here). In the long run, though, I wonder whether this tactic is really sustainable. Surely, Canadians can be convinced on the merits of Byers' arguments rather than by resorting to the trope that it is Canadians' nationalistic duty to join the Kyoto Protocol?

To start, I will say I disagree with Julian's characterisation that anti-Americanism drives Canada’s pride in internationalism. It is, of course, entirely plausible that Canadian politicians try to galvanise support for internationalist approaches by clothing them in the politics of differentiation. However, that is to say nothing of the public's enduring faith in international institutions and universalism. It is surely a gross simplification to reduce such entrenched attitudes about power and legitimacy down to petty envy.

Nor is it likely that Canada's outlook can be adequately explained by the desire to seek power horizontally. For whatever the gains in prestige, credible promise-making, or bureaucratic control, which might be feasibly linked to spearheading multilateral projects, it is doubtful the public could measure the tangibles of such arrangements, in a sophisticated way, and support it on that basis. Not in a way which explains their sustained beliefs anyway. This is an especially unconvincing explanation for ongoing public sentiment when you contrast it with the concrete metrics of hard-power. For if it is power that is desired, why is hard-power deliberately sidelined, despite its comprehensible metrics, in favour of the wooden spoon of "multilateral glory," with its harder to quantify ones?

The problem, I think, is substantially to do with the Realist view which is assumed here. Realists aggregate the state in a similar fashion to how neo-classical political economy strips the individual of its temporal and behavioural complexity in order to achieve a workable economic model of man: homo economicus. A process such as this yields wonderful certainties, and opportunities for calculation and utility optimisation, however, its explanatory horizons are always limited by the original assumptions of the basic unit, no matter how unrealistic.

In this case, the elephant in the room is the role that may be played by internalised norms in the Canadian zeitgeist, for want of a better word. Here, I’m talking about the general acceptance of the post-Atlantic Charter consensus, combined with the rich liberal and communitarian philosophical tradition which is associated with modern Canada. Remember, this is the home of such important public intellectuals as John Ralston Saul, Will Kymlicka and Charles Taylor. They've each contributed important bodies of work in the modern liberal and communitarian traditions, all of which reject, or at least modify, the standard assumptions of methodological individualism. Whilst in the US, the free-market system tends to be seen as a natural phenomenon, always in danger of the state, their views never decouple the market's success from its constituent social and institutional arrangements: ie. a civil society, courts, the rule of law, and contract and private property, etc. So as intellectual approaches, they each share in common the affirmation of a certain idea of positive freedom, which happens to be naturally well suited to the idea of collective politics on the international plane.

Notwithstanding Julian's failure of imagination, then, it is entirely reasonable to suppose Canada may have struck a different balance than the US. That is, a different set of intellectual elites seed a different political discourse and public sphere, which creates a rather different set of goalposts to those found in the US. What can appear to many Americans as idiosyncratic and reactionary, against the 'norm' of rugged individualism, is actually the expression of a genuine and independent corpus of beliefs, manifesting in support of international institutions and the like.

This may sound like it's all just fuzzy concepts, but it's well to remember that shared norms can shape us in profound ways. Norms are not only capable of moving Mum and Pop to vote, they can also determine the very spectrum of acceptable opinions in a society. This means they inevitably become part of the background culture which informs decision-makers within the state apparatus directly. One only need look at how freedom of expression is treated in the United States, compared to other liberal democracies, to see how entrenched norms can have a significant impact of the fabric of a nation. So, there is no real mystery here. When enough belief is manifested in the legal and political culture of a nation, it is possible to do as Canada has done, and achieve some degree of inertia in favour of multilateral solutions.

So while Julian is well within rights to question the jump from national justifications to international ones, in this case he is ignoring the fact that good international citizenship can go hand-in-hand with patriotic virtue, if the underlying philosophy is universalist. Here, it is certain that universalist aspirations and values are central to Canada's evolving identity, and the outcome isn't just the result of contrarianism.

Kirby's dissent under fire from The Australian for pre-9/11 thinking

News Ltd legal journalist Chris Merritt has criticised High Court Justice Michael Kirby in The Australian today, over his dissenting remarks against the Government's anti-terror control-order regime. He attacks Kirby for having his "eyes closed" to the post-9/11 world, and the extraordinary efforts we must take to be safe.

Merritt's remarks here deserve due consideration because he isn't just a fire-breathing imbecile, like many of those right these days, who are completely indifferent to the importance of maintaining checks against executive power. For example, his comments in support of the Haneef "leak" and the shift in the constitutional balance advanced by Howard's WorkChoices legislation reveal a mind which is not a selective proponent of federalism or centralism, simply echoing the latest talking points of the current government.

But is he right? Possibly. I am a fan of Justice Kirby, but it is certainly arguable that the control-order mechanism is an appropriate extension of executive power, which has arisen from the inadequacy of the ordinary criminal justice system to detain, review and prosectute terror suspects in the face of crimes which don't fit the books. While some crimes would be adequately dealt with under the normal system, I can't dispute that others wouldn't, and lawmakers are tasked to ensure that our system is as robust as possible, with adequate precautionary powers of detention and review for all situations.

However, where Merritt is on less firm ground is in justifying his stance by repeating the old candard of the right: that our entire civilisation is under existential threat from terrorism. Here, I've got to say he receives marks off for using an inherently discrediting phrase like "Islamic fascism." Whatever defects he alleges in Kirby's assessment of the threat of terrorism, it can't possibly be remedied by retreating into such pointless hyperbole. This wiki page does an adequate job of summarising the main criticisms of how "fascism" is an inappropriate label for any species of Islamism, so I won't retread that ground here.

Terrorism is certainly real, but it isn't by any stretch of the imagination an existential threat to our civilisation. We are far more likely to do irreparable damage to our civil institutions, liberal order, and thus "Western civilisation," by listening to the demagogic rhetoric of the right, and proceeding to throw our rule of law tradition out the window in the name of fighting terrorism.

Whilst conservatives are fond of trying to conjure the consensus moral certainty of WWII as some kind of blueprint for the struggle against terrorism, this has always been a ridiculous analogy. WWII was a global conflict against a modern industrialised state which had the ability to implement its belligerent goal of world conquest. Whilst terrorists may have similarly diabolical goals in their own right, they have nowhere near the capacity of any modern state to achieve this, let alone the might of the Third Reich. Terrorists are fragmented non-state actors. They don't have uniformity of resolve, purpose or organisation, and nor are they aligned together or even neutral towards each other. Even when you only count Islamists, many groups are mutually antagostic towards each other - either along Sunni or Shia lines, or some other ideological axis like Qutbism. As a group, they are certainly nothing like 1930s Germany - a homogenous and nationalistic state, capable of backing its unified resolve through a corporatist authoritarian government, and one of the best industrial war machines in the world.

If there are any lessons from WWII which must be recalled in the current conflict, more important than the familar Churchill v Chamberlain dichotomy, is the lesson that ultimate evil and tragedy can be born of a flawed legal regime, because such a regime is vulnerable to populist politicians lawfully enhancing executive power beyond review. Afterall, the Weimar Republic could never have turned into Nazi Germany without its defective constitutional arrangements, and we wouldn't have needed the non-appeasing vigilence of Churchill and FDR to save the day in the first place. So, even if we had reason to believe Kirby's disagreement over control orders is an analogue for Chamberlain's appeasement, and we don't, that wouldn't mean there isn't powerful historical weight behind his posture against government power.

Notwithstanding the appropriateness of control orders, in at least the rhetorical aspect of his criticism, we can now see Merritt has indulged the Mussolini fallacy by uncritically accepting the propaganda and self-assurance of the enemy, while downplaying the danger we pose to ourselves in ceding too much power to the executive.