Wolf Blog

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

2008-06-13T21:37:00.007+10:00

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

2007-09-18T10:21:00.000+10:00

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

2007-09-14T10:08:00.000+10:00

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

2007-09-09T21:31:00.000+10:00

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?

2007-09-03T10:57:00.000+10:00

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?

2007-08-23T07:47:00.000+10:00

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

2007-08-13T15:26:00.000+10:00

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

2007-08-12T18:18:00.000+10:00

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

2007-08-09T09:46:00.000+10:00

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

2007-08-07T10:18:00.000+10:00

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?

2007-08-05T19:58:00.000+10:00

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

2007-08-03T13:29:00.000+10:00

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.

The argument for a Bill of Rights

2007-08-01T11:55:00.000+10:00

Julian Burnside, QC, has written a persuasive piece for Online Opinion calling for a federal Bill of Rights.

Most people of goodwill understand, even if only vaguely, that living in a complex society requires all members of society to adhere to a commonly agreed set of norms and ideals. These are usually so basic to our thinking that we rarely give them any attention.

Australians have a strong instinct for human rights. Public and political rhetoric tends to favour human rights. Although Australia does not have a written Bill of Rights, we have a shared sense that some ideals are basic to our society. Most of the basic elements of a constitutional democracy are found in our Constitution, but others are taken for granted: we tacitly accept them as basic and inalienable.

The American formulation “life, liberty and the pursuit of happiness” is not only familiar to us from TV dramas; it is a pretty fair reflection of our own assumptions. For most of us, the assumption remains untested.
The starting point in an argument about a Bill of Rights is that, within the scope of its legislative competence, Parliament’s power is unlimited. The classic example of this is that, if Parliament has power to make laws with respect to children, it could validly pass a law which required all blue-eyed babies to be killed at birth. The law, although terrible, would be valid. One response to this is that a democratic system allows that government to be thrown out at the next election.
This is not much comfort for the blue-eyed babies born in the meantime. And even this democratic correction may not be enough: if blue-eyed people are an unpopular minority, the majority may prefer to return the government to power. The Nuremberg laws of Germany in the 1930s were horrifying, but were constitutionally valid laws which attracted the support of many Germans.

Generally, Parliament’s powers are defined by reference to subject matter within a head of power, Parliament can do pretty much what it likes. Thus, the Commonwealth’s power to make laws with respect to immigration has in fact been interpreted by the High Court as justifying a law which permits an innocent person to be held in immigration detention for life, and to be liable for the daily cost of his own detention.

The question then is this: should we have some mechanism which prevents parliaments from making laws which are unjust, or which offend basic values, even if those laws are otherwise within the scope of Parliament’s powers?

If such a mechanism is thought useful, it is likely to be called a Bill of Rights, or Charter of Rights, or something similar. A Bill of Rights limits the power of Parliament in a different way. A modern Bill of Rights introduces, or records, a set of basic values which must be observed by parliament when making laws on matters over which it has legislative power. It sets the baseline of human rights standards on which Society has agreed. Because this is so, it is wrong to say that a Bill of Rights abdicates democratic power in favour of unelected judges. Judges simply apply the law passed by the parliament. That is their role.

Many cases raise questions about Parliament’s powers. Judges are the umpires who decide whether Parliament has gone beyond the bounds of its power. A Bill of Rights is a democratically created document, like other statutes. Enforcing it is not undemocratic at all.

Modern Bills of Rights are concerned with such things as: the right not to be deprived of life; the right not to be subjected to torture or cruel treatment; electoral rights; freedom of thought, conscience, and religion; freedom of expression; manifestation of religion and belief; freedom of peaceful assembly; freedom of association; and freedom of movement.
Here it is important to distinguish the special case of the US Bill of Rights. It is not much concerned with human rights. It is largely a reflection of the anxiety of the American colonists that the federal experiment might replicate the excesses of the Stuart monarchs: its contents are a reflection of the Petition of Right of 1627, with just a hint of Magna Carta.
It has little in common with the Bills of Rights which have been adopted throughout the Western world during the 20th century (with the single exception of Australia).

Until a few years ago, I was opposed to the idea of a Bill of Rights. This was for two main reasons. First, the American experience, which suggests that a Bill of Rights serves mostly the interests of unpopular minorities. However a little thought shows why this is so. Any instrument which guarantees basic rights will be needed first by the most vulnerable. In times of stress, the majority show little concern for the rights of unpopular minorities. The argument against a Bill of Rights almost always comes from members of the complacent majority, whose rights are never at risk.

Second, more importantly perhaps, I thought that we simply did not need one. Australia had been one of the most active supporters of the Universal Declaration of Human Rights in 1948; we signed the International Covenant on Civil and Political Rights. I thought that no Australian government would pass laws which betrayed basic human rights values. I was wrong. The past few years have convinced me that Australia needs a Bill of Rights.

Even a decade ago it would have been difficult to foresee the erosion of human rights in Australia we have seen under the present government. The most florid recent examples of the problem are:
our treatment of asylum seekers, in particular the arbitrary detention involving cruel inhuman and degrading treatment of children and adults, the unregulated use of solitary confinement and treatment amounting to torture;

the government’s complacent acceptance of the detention in Guantanamo of two Australian citizens, Mamdouh Habib and David Hicks. Habib was tortured by Egyptian and American authorities; Australia knew about it and did nothing to help him. Hicks was held for five years and did a plea bargain when faced with a “trial” which would have lacked all of the features and safeguards of a proper criminal trial; the Australian government did not lift a finger to help him;

the 2002 amendments to the security legislation permitting the incommunicado detention of people not suspected of any offence;

the 2005 amendments to the security legislation permitting imprisonment for up to 14 days without trial, and house arrest for up to 12 months without trial.
These things should not be acceptable in this society. A Bill of Rights articulates the basic assumptions on which a society is founded, and ensures that those assumptions are respected by the Parliament. It is a profoundly important expression of the will of the people: by declaring the moral limits to what Parliament may do, it says what sort of people we are.

Dr Burnside makes some excellent points. He addresses the historical context of legal rights, and rightly deflates the flippant talking point that codified rights grant too much power to unelected judges. Burnside also identifies that there is a deeper subtext to the debate, and makes a strong case for his position based on limited government. Using the example of elected officials who commit serious abuses of power, he reminds us that popular support, far from entailing absolute legitimacy, can amount to Mill’s famous tyranny of the majority. This effectively calls out all those tough talking conservatives, who crassly laugh at civil liberty concerns in the face of supportive polling data. Clearly such an approach betrays a fundamental conflation between the sense of legitimacy which attaches to the democratic tradition proper, and crude majoritarianism.

Churchill once said that democracy is the worst form of government, except for all those other forms that have been tried. Well, it’s not even that if your version of democracy isn’t a constitutional limited system, with appropriate checks and balances against executive power.

Whether we can agree with Burnside on the overall desirability of such an approach in Australia, this piece goes some way to moving beyond the false obstacle of anti-judicial populism coming form many conservative commentators. Without this, the debate can proceed in a more honest and worthwhile fashion.

For further reading on the pros and cons of a Bill of Rights, this paper by High Court Justice Michael Kirby is still relevant.

A real proposal for fixing the UN from the inside

2007-07-31T15:06:00.001+10:00

One of the US Presidential candidates you're probably not hearing much about is New Mexico Governor Bill Richardson. Part of the reason for this is that he has been squeezed out by all the soft money and media adulation poured on the 3 main candidates: Hillary, Obama and Edwards. The other reason is that Richardson hasn't performed as well as he might have in the Democratic debates, despite the edge he has in diplomatic and executive experience over the other candidates.

This is somewhat disappointing because Richardson has the potential to inject some sound ideas into the debate. One such idea, which he floated during the most recent Democratic debate, was the establishment of a permanent UN peacekeeping force.

Contrary to how it is often measured and criticised, the UN was never intended to play the role of world policemen. It’s primary task, before every other consideration, is to prevent multi-year global conflict, and despite all its other failures, in this it has been remarkably successful.

Despite this, it cannot be denied that the UN is more impotent than it needs to be. The UN never achieved even the limited hard-power capacity that was envisioned for it through the Military Staff Committee. To this day, the UN has no standing army, and depends on member states to provide manpower and logistics for even the most basic operations. This situation creates many problems. Not only is the UN peacekeeping and collective security programme effectively hostage to the politics of nations states, but the burden of the work on the ground tends to fall to poorer nations, whose soldiers are often ill-equipped and trained to be wearing blue helmets, as we have seen in the Congo and elsewhere.

Richardson’s proposal is not the only one of its kind, but he’s one of the only mainstream candidates talking seriously about the issue. In saying that, I deliberately exclude the faux reform agenda of people like Giuliani, on the Republican side, who is being advised by notoriously pugnacious, UN reform pretender John Bolton.

Limited Government

2007-07-30T22:01:00.000+10:00

The NY Times carried a Paul Krugman op-ed recently about the absurd degree to which modern movement conservatives torture limited government. It's a Times Select piece, so I've reproduced it here unabridged.

An Immoral Philosophy
By PAUL KRUGMAN
When a child is enrolled in the State Children’s Health Insurance Program (Schip), the positive results can be dramatic. For example, after asthmatic children are enrolled in Schip, the frequency of their attacks declines on average by 60 percent, and their likelihood of being hospitalized for the condition declines more than 70 percent.

Regular care, in other words, makes a big difference. That’s why Congressional Democrats, with support from many Republicans, are trying to expand Schip, which already provides essential medical care to millions of children, to cover millions of additional children who would otherwise lack health insurance.

But President Bush says that access to care is no problem — “After all, you just go to an emergency room” — and, with the support of the Republican Congressional leadership, he’s declared that he’ll veto any Schip expansion on “philosophical” grounds.

It must be about philosophy, because it surely isn’t about cost. One of the plans Mr. Bush opposes, the one approved by an overwhelming bipartisan majority in the Senate Finance Committee, would cost less over the next five years than we’ll spend in Iraq in the next four months. And it would be fully paid for by an increase in tobacco taxes.

The House plan, which would cover more children, is more expensive, but it offsets Schip costs by reducing subsidies to Medicare Advantage — a privatization scheme that pays insurance companies to provide coverage, and costs taxpayers 12 percent more per beneficiary than traditional Medicare.

Strange to say, however, the administration, although determined to prevent any expansion of children’s health care, is also dead set against any cut in Medicare Advantage payments.

So what kind of philosophy says that it’s O.K. to subsidize insurance companies, but not to provide health care to children?

Well, here’s what Mr. Bush said after explaining that emergency rooms provide all the health care you need: “They’re going to increase the number of folks eligible through Schip; some want to lower the age for Medicare. And then all of a sudden, you begin to see a — I wouldn’t call it a plot, just a strategy — to get more people to be a part of a federalization of health care.”

Now, why should Mr. Bush fear that insuring uninsured children would lead to a further “federalization” of health care, even though nothing like that is actually in either the Senate plan or the House plan? It’s not because he thinks the plans wouldn’t work. It’s because he’s afraid that they would. That is, he fears that voters, having seen how the government can help children, would ask why it can’t do the same for adults.

And there you have the core of Mr. Bush’s philosophy. He wants the public to believe that government is always the problem, never the solution. But it’s hard to convince people that government is always bad when they see it doing good things. So his philosophy says that the government must be prevented from solving problems, even if it can. In fact, the more good a proposed government program would do, the more fiercely it must be opposed.

This sounds like a caricature, but it isn’t. The truth is that this good-is-bad philosophy has always been at the core of Republican opposition to health care reform. Thus back in 1994, William Kristol warned against passage of the Clinton health care plan “in any form,” because “its success would signal the rebirth of centralized welfare-state policy at the very moment that such policy is being perceived as a failure in other areas.”

But it has taken the fight over children’s health insurance to bring the perversity of this philosophy fully into view.

There are arguments you can make against programs, like Social Security, that provide a safety net for adults. I can respect those arguments, even though I disagree. But denying basic health care to children whose parents lack the means to pay for it, simply because you’re afraid that success in insuring children might put big government in a good light, is just morally wrong.

And the public understands that. According to a recent Georgetown University poll, 9 in 10 Americans — including 83 percent of self-identified Republicans — support an expansion of the children’s health insurance program.

There is, it seems, more basic decency in the hearts of Americans than is dreamt of in Mr. Bush’s philosophy.

This article makes a good point.

An argument for limited government which is based on empirical facts must be respected and evaluated on its merits. We might even accept that, given a wide enough review, the corpus of evidence is so strong that we should have a healthy, automatic presumption against the efficiency of government action.

If we accept this presumption, as I think is prudent, we should not embrace undue optimism about the possibility of successful government coordination, be wary of the government model, and act accordingly. Whilst this view of limited government is a sceptical position, it does not pre-judge the outcome. On one hand, it might allow us to identify a Govt policy has comparatively less efficiency than it would in the private sector. But then we can still step back from this and judge as a community whether other values, such as those underlying the provision of public goods, might justify the loss of marginal efficiency (which might not be much). This view is also compatible with finding that the government is more efficient than the private sector ( ), whether because of economies of scale, removal of profit-taking / marketing, or the cost of debt in the private sector, for example.

In this way, it is still an opened minded position. Government is seldom the answer, but it's not always the problem either.

Radical libertarians and conservatives, in contrast, do not share this approach. Whilst they appear to preach a lot about limited government, what they're really expressing is the necessity of government failure. They're not interested in demonstrating why government fails in each and every proposed situation, because that is taken as an article of faith. According to them, governments are a priori wrong.

And it is this pre-judging position which leads to the kind of silliness in the article above. Now this particular healthcare policy might not be great, I really have no idea, but it's easy enough to render judgement on the orthodoxy of Kristol's ilk. If the mere fact of a policy's potential success is the sole reason it must be attacked, because it might conceivably create impetus for government action in other areas, and perhaps even lead to citizens demanding better from their leaders, then such an ideology is bankrupt and admits contempt of democracy.

More on the tension between hardcore libertarians and democracy later.

The myth of isolationism in progressive politics and the importance of defining exceptionalism properly

2006-12-13T11:52:00.000+11:00

Guest blogger at Democracy Arsenal, Ali Eteraz has attempted to wade in to the progressive foreign policy debate by throwing a hand-grenade at the so-called "ultra left". His contention: progressive politics can be divided in to the isolationist left and the Truman Democrats, where the latter should come to prominence. Here’s a quote:

Today's Isolationist Leftist shares almost nothing with a Truman Democrat in terms of foreign policy. Here are the six foreign policy "principles" that define a Truman Democrat: American exceptionalism, the use of force, American hegemony, the world community, liberal-mindedness, and helping the least well off. Today's Isolationist Left rejects the first three of those without a thought (because they are presumed to be solely belonging to the Neo-Cons). The other three are accepted as long as they do not require having to affirm any of the first three principles.

Clearly this is a disappointing false dichotomy. By conjuring a nonsense position out of thin air to contrast with his own, Mr Eteraz just echoes the silly framing used by the right since Vietnam, and most recently through the whole Iraq debacle.

Trying to paint mainline progressives as being divided in to enlightened exceptionalists, on one hand, and the loony isolationist left, on the other, is wrongheaded. What's more, it's obviously so, given the substantive support that existed for the war in Afghanistan, as a legitimate action under the collective security regime compared to Iraq. Indeed, as I've previously explained, the Pell Global Attitudes survey demonstrates that this division is a worldwide phenomenon.

In response to a suggestion that perhaps interventionism versus anti-interventionism would be a better terminological distinction than 'isolationism', Mr Eteraz responded:

The majority of the replies have argued that my dichotomy between "Isolationist Leftist" and "Truman Democrat" is false. They prefer to be referred to as "anti-interventionists." Their assumption is that since the word "anti-intervention" is not as insular sounding as "isolationist" they can't be accused of being self-obsessed Americans. This is an altogether meaningless game of semantics. Why? Because there is no such thing as a pure anti-interventionist. Even Kossacks have a favorite intervention: Darfur (these are the 432,00 results when you type "Darfur Daily Kos" into Google). So, very quickly it is established that in this global world, every American is an interventionist.

Whilst this is a fair observation, Mr Eteraz makes it by dodging all the other criticisms, failing to notice he has contradicted himself in the process. I would agree that anti-interventionism is something of a misnomer, given that there are plenty of contrary beliefs - like an enthusiasm for intervention in Dafur. However, it must be noted that by disproving the replacement terminology, Mr Eteraz simply begs the question of why ‘isolationism’ was ever going to be a defensible description of the less militarily assertive side within progressive politics? We then return to the question of why exactly he used a caricatured Chamberlain strawman in the first place? If it is so obvious that there is no such thing as an anti-interventionist camp, then it is scarcely credible that a more extreme label like isolationism ever had any merit.

Note: leftists are not just pro-intervention in Dafur, they are also often enamoured with the idea of world government, interdependence theory, and the creation of bodies like a UN rapid reaction forces for humanitarian crisis, etc., so isolationism is even more discordant than anti-interventionism as a label.

Mr Eteraz continues his follow up post, by trying to defend his use of exceptionalism. He states:

Point is: the ultra-Left needs to take a breather each time they see the word "exceptionalism" and "hegemony" because they will often find that not everyone is out to use these principles in a way that Bush used them in Iraq.

Whilst I take the point that not everyone uses the word exceptionalism to mean the same thing in foreign policy, I do find it perplexing that Mr Eteraz thinks it is a term worth rehabilitating from the neo-conservative connotations which indelibly stain the word in current parlance. So let’s be clear here, there are two meanings of the term and it seems Mr Eteraz has not been particularly careful in distancing himself from neo-conservative definition, which is vulnerable to attack. Let me explain...

1. The first usage of the term is commonly employed in the phrase ‘American exceptionalism.’ This exceptionalism derives from the sense of America being being unique and excellent, rather than the idea of asymmetry. It is also tied to the myth of the nation idea, as well as a kind of ode to the democratic and entrepreneurial spirit of America. It is an attempt to capture such facets of the American political experience as its rather unique modern religiosity compared to Europe, its role in advancing the democratic frontier, and the general free-thinking confidence of its public aspirations. In my opinion, this usage of the term should really be seen as de Tocquevillean American exceptionalism.

This view is not strictly to do with foreign policy, but it certainly colours many beliefs about the nature of American power, and its relative status as a world leader and hegemon. It is also not as contested as Mr Eteraz thinks it is on the Anglo-American left. Whilst I would imagine many, including myself, would regard as absurd any history of American power which relied on an almost Hegelian meta-narrative of benign progress, as you sometimes find on the right, I don’t think that many people dispute that as "Empire," America is better than most feasible alternatives. I would also point out that even fierce leftist critics, like Noam Chomsky, for example, are on the record as agreeing that the US is great overall, and that the American public, when acting on their best instincts, have done a lot of good in the world. From this, it is pretty obvious that de Tocquevillean American exceptionalism is not a real fault line in progressive foreign policy.

2. It is the other kind usage of the word, however, which provides connotations of which Mr Eteraz appears oblivious. This is the belief that the US approach to the rule of law and international relations should unashamedly pursue US primacy at all costs. This is the view that the normalising, uncertainty-reducing, and values-promoting effect of international law do not create any national interest in exporting and maintaining a robust, and adherence generating, system of international norms. This is the kind of exceptionalism which is diametrically opposed to the legacy of FDR and Truman, and indeed, the bipartisan Atlantic Charter consensus that arguably existed until GWB himself.

This exceptionalism is most associated with the pugnacious attitude of former Senator Jesse Helms, and the strident position taken by influential neo-conservatives, and their allies, with regard to international institutions, and the collective security regime. Their view is that there is no real cost for the United States in acting unilaterally, and without regard to weakening the background system of norms which make others cooperate. To them, norms don’t really matter, except as a rhetorical framework in domestic politics, and as background unexamined beliefs about the inherent virtue of America as an actor. Nothing is sacred as long as it is in the service of managed US hegemony. In this manner, they hold one set of rules for everyone else, and no rules for themselves – hence the US is an 'exceptional actor.'

This view, as I hope most people realise, (and the recent WPO poll gives me some hope), is incoherent, unsustainable and has no redeeming qualities whatsoever. It is thus very troubling when a nominal progressive identifies exceptionalism as a core component of their beliefs. For if they mean the latter definition I have given, we are in serious trouble. As I have already argued, invoking Truman in support of the view would just add insult to injury. It is also worth pointing out here, that Anne Marie Slaughter does NOT support exceptional as Mr Eteraz may be claiming under the latter definition. Nor does Robert Keohane, for the matter, or anyone else doing serious work in international relations these days like Samatha Power. Indeed, for all that the Princeton National Security Project may be uncomfortably hawkish for some on the left, the whole point is that it at least attempts to create a systematisation of its hawkish sensibilities. At least theoretically it is capable of universalisation within the system, or within the so-called Concert of Democracies.

This feature of symmetry or formal equality is important in a fundamental way besides the practical benefits of baseline legal cooperation. Universalisability itself is a basic criterion of any credible normative system, and it is something that the neo-conservative approach, by its very nature, cannot ever achieve. There's a good reason there won't ever be anything equivalent to James Steinburg's discussion paper on the preventative use of force coming out of the neo-conservative camp. The reason is that the exceptionalism of neo-conservatives, by definition, precludes them offering reciprocity even to formal equals. For example, they would never extend to China, or any other power, the same courtesy that was assumed by themselves in Iraq. No other nation would be allowed the kind geopolitical space to make a war of choice on the basis of exaggeration and guff under the cover of non-proliferation. Not on the basis of a geopolitical concerns, force projection, or a naked doctrine of dominance like the Bush NSSs.

Iraq is potent example of this, when you consider that, of course, there is no universal permission to act on self-proclaimed power to interpret and enforce Security Council resolutions unilaterally. The US would certainly not countenance other nations, even allies, trying to argue that they had authority to self-execute war based on resolutions carrying interpretations that were explicitly rejected in the UNSC.

This hypocrisy is at the heart of the sometimes poorly articulated case against the war, and that is why it is troubling to see someone apparently tone deaf to why its usage might be a landmine of raging bloggers.

The most galling thing about it is that, though we know hear it as a post-hoc justification, humanitarian intervention has been tarred. Without even putting a meagre effort to put in place to establish a working framework for humanitarian intervention,the Administration effectively soured many Americans away from being constructively and engaged in the world.

Just on the side, I think it is rather serendipitous timing that Mr Eteraz's comments happen to coincide with Kofi Annan’s recent speech at the Truman Presidential Library. I suggest everyone reads Mr Annan's remarks, and especially the parts where he quotes Harry Truman himself, as they offer a reminder of just how far off the page Mr Eteraz is, if he does in fact think the Truman legacy is coupled with foreign policy exceptionalism.

So, if Mr Eteraz means the first definition, it is not going to do the work of differentiation that he apparently wants to separate himself from the supposed views of the 'ultra left'. It is also puzzling why he would start assuming that the left was opposed to this exceptionalism, if all he meant was the de Tocquevillean sense.

Regardless, in my opinion, any idea of forming a progressive foreign policy movement which displaces the most pacifist fringe, needs to start with a more concrete understanding of how liberal interventionism is different from neo-conservativism, other than just practical matters of disagreement over the implementation of the war in Iraq. For a start, he should look at the existing literature, and the real positions taken by scholars and internationalists on the progressive side. There he could find an assertive, but universalisable foreign policy. In order to fully grasp the idea of working within the system, rather than working against it, he need only look at humanitarian intervention as advocated within the rubric of erga omnes, principles of nascent jus cogens against terrorism, and reform of the collective security regime. Importantly, such research would have explanatory power for why the world had little problem with Afghanistan, but found Iraq to be abhorrent. After all, that is the defining difference of our times in foreign policy, and nothing in Mr Eteraz’s piece gives much indication that he understands the importance of the distinction. For too long, those of his ilk have tried to sweep Iraq under the table as some kind of gentlemen's disagreement, which just provides cover for idiots like Joe Lieberman in the process.

Bolton renomination dead in the water

2006-09-27T11:52:00.000+10:00

The 'Note carries word that the Senate Foreign Relations Committee has killed the last possible chance for John Bolton to be confirmed as full Ambassador to the United Nations. As some of you may be aware, Bolton was only able to get in to his current position through a temporary presidential mechanism called a recess appointment, because even the Republican dominated committee found his pugnacious approach to international issues, his failure to account for improper use of intelligence intercepts, and his general investment in failure at the UN, was inimical to representing US interests as a senior diplomat.

The recess appointment was to last until January 2007 when Congress resumes, and ever since then the Whitehouse has been stubbornly lobbying like mad to get the votes it needs to confirm him. In recent months Republican Senator Voinovich flipped, and it looked like there might be hope, yet thankfully most hadn't changed their mind on Bolton, and in particular, the pressure coming from the Whitehouse was not enough to sway Republican moderate Lincoln Chafee's opposition, which was the deciding vote. It probably didn't hurt that Chafee is facing a very tough re-election battle in a liberal state, but the beauty of Bush's current political weakness is that the Republican National Committee had to finance Chafee, over the more conservative Laffey, in the primary battle, because he was the only Republican with any chance whatsoever in Rhode Island.

BIG NEWS: John Bolton Confirmation Battle Really, Really Dead

The last pre-election loophole through which John Bolton's confirmation might have snuck through the Senate Foreign Relations Committee was at 2:15 this afternoon at a previously called "business meeting" of the Committee.

That meeting has been cancelled -- and with it even the dimmest chance of John Bolton being confirmed as US Ambassador to the United Nations.

***

So, it's over. Wow.

John Bolton might agree to serve as the uncompensated Ambassador to the UN in a second recess appointment, or might agree to serve as a recess appointed political deputy at the UN and made "acting Ambassador and Chief of Mission" at a pay cut.

Either way, Ambassador Bolton will fill his term as the only unconfirmed Ambassador at the United Nations in American history.

This is terrific news for those who want to see an effective and reformed UN. Either Bolton has to work unpaid with an embarrassing second recess appointment, or he has to take a less senior position which does not require Senate approval, thus undermining his effectiveness.

For anyone wondering why Bolton evokes such strong opposition from both sides of politics, I've collected a lot of the material from Bolton Watch & Steve Clemons' site below:

http://www.stopbolton.org/video.html

Bolton's UN Report Card

Chronology Bolton's activities at the UN

White Paper on why Bolton is wrong for the job

Bolton undermining the proposed UN peacekeeping force in Southern Lebanon before it's even begun

Chafee's reasons for not voting for Bolton:
Chafee's letter to Rice
Rhode Islanders oppose Bolton

Powell's Chief of Staff, Lawrence Wilkerson, on why Bolton is a bad candidate

Republican Senator Hagel Ambivilent about Bolton

Evidence of the little documented rift between Rice at the State Department, who Bolton is supposed to be serving, & Bolton's alignment with Cheney:
http://www.thewashingtonnote.com/archives/001410.php
http://www.thewashingtonnote.com/archives/001142.php
http://www.thewashingtonnote.com/archives/000941.php
http://www.thewashingtonnote.com/archives/000782.php
http://www.thewashingtonnote.com/archives/000477.php

Senate Foreign Relations Committee Interviews - evidence against Bolton's personality and management style

Recent op-ed in the La Times against Bolton

Bridging the Gap of Incomprehension: Academy v Policy

2006-09-12T15:13:00.000+10:00

When confronted with ideologically blinkered thinking, it's easy to use handing-waving as a kind of shorthand for the lack of merit that would be revealed under proper consideration. There's nothing essentially wrong with this as long as dismissiveness isn't confused with argument in itself, because, after all, if you don't pick your fights you simply become hostage to the sheer volume of opinions out there.

But caution is warranted. For if this is to get to the stage of a reflexive response, it will be harder to spot and engage with genuine positions when they're actually there. That said, it's important to acknowledge that as tempting as it might be to think so, and as true as it often was, not everyone who gave some level of endorsement to the war in Iraq was a complete ignoramous or misguided ideologue. Though I wouldn't be so kind to the people who are still "true believers" today, there were serious journalists, policy wonks, and analysts who were, at the time, split more in line with current public opinion about Iraq. Fareed Zakaria & Pamela Bone are good examples of liberal interventionist journalists, for instance, who made the wrong assessment with good intentions.

But it must be asked - why was this the case in policy circles? Why was there such a gap between what, for instance, a clear majority of historians, philosophers, international lawyers & IR theorists (whether realist, constructivist, or new stream) thought about the inevitable failure of Iraq, and what these other educated and principled policy makers thought about it?

It doesn't seem plausible to dismiss this question as irrelevant, by trying to claim that they were potentially right then, and that it's all about repeated operational failure. Yes, better planning and strategic decisions on the ground, complimented by more sophisticated diplomacy internationally, could have made an untenable situation better than it is now, but that's not the point. That kind of thinking misses the forest for the trees, and just generates clear absurdities like Thomas Friedman's sadly hilarious repetetion of the "next six months" thesis.

Clearly the individual failures in Iraq, and the War on Terror, which constitute part of the bigger failure of the Bush Presidency, do not simply exist in an atomistic vacuum. Rather, most of these failures are directly attributable to the foreign policy methodology which conceived the project in the first place - i.e. over-reliance on hard power, clumsiness with and aversion to soft power, blind animosity towards international institutions, using convenient domestic rhetoric as a replacement for genuine and clear foreign policy communication, misunderstanding of the enabling institutions of democracy, lack of proper respect for the rule of law, etc.

So, where does that leave us? This is where two articles in the latest issue of Harvard International Review may illumate the problem: Access to Power: Research in International Policymaking, and Dogmatic Dangers: When Policy Making Rigidifies Ideas. Both articles explore the difference between academy and policy, and how it's not always "pragmatic realism" in policy versus the "ivory tower" view in academia. Indeed, if Iraq shows anything, simplification for memos, pet historical analogies and the requirement for harmony with the current orthodox political narrative can often push policy makers in the opposite direction away from a realistic & rigorous understanding of the situation, and the options on the table. Go pick up a copy today.

Recommended.

The Awful Sound of a Bad Journalist

2006-09-11T10:14:00.000+10:00

A lot has happened since I last updated this blog, so I’ll just jump right in rather than trying to post backdated entries for everything.

Today is September 11 – the fifth anniversary of the terrorist attacks on the World Trade Centre. It’s an emotionally potent time - a time for ordinary people to revisit their collective sympathises for the victims of the attack, and renew their shared commitment to oppose terrorism.

Unfortunately the nature of 9/11, and its memorialisation, also invites right-wingers to reopen the old psychological wounds and wave their flags around in another round of mindless jingoism, desperate to not only justify the failed project in Iraq, but perhaps also to support military action against Iran and Syria. In Australia, our very own poster child for faux-centrist journalism, Michael Gawenda, has taken the opportunity for a caricature rant against ‘The Awful Silence of the Left’ whatever that is meant to mean. It is difficult to know what he means too, because his article is so riddled with errors.

Where do I start? Right off the bat Gawenda misrepresents Fukayama’s claim about the end of ideology. It’s not an end to de facto contestation, which Gawenda ridicules, but rather a putative normative victory, for liberal democracy, which Fukayama is arguing - a point which Gawenda's article assumes. Colour me unsurprised that someone of his limited intellect doesn't understand the difference.

Gawenda goes on to embarrass himself further, by asserting that the few crass pot-shots that existed at the time, against America's foreign policy, constituted a monolithic body of partisanship, on the progressive side of politics. Even more bizarrely, he suggests that there was, in fact, no real world unity after 9/11 for the war in Iraq to have divided and squandered. What can one really say to such ridiculous and histrionic revisionism? Support for the war against the Taliban regime in Afghanistan, in liberal democracies, neighbouring states, and the world at large, was unprecedented. The domestic support was, indeed, higher than at any time since WWII! If Gawenda had bothered to do his research he would know this. He would also know that the Pell Global Attitudes survey from 2002 – 2005 directly contradicts his assertions. I’ve provided a sample below of the precipitous drop in America’s ‘favourabilities’ across the world:

UK: 75% -> 55%

Canada: 72% -> 59%

France: 63% -> 43%

Germany: 61% -> 41%

Russia: 61% -> 52%

Indonesia: 61% -> 38%

Turkey: 30% -> 23%

These figures obviously contradict Gawenda's thesis . Given the period we're dealing with, and the fact we're looking at OECD and liberal democracies as well, it's clear that unileralism in Iraq is the main thing responsible for the decline. Guantanamo Bay, Abu Ghraib and the failure of the Bush administration to be credible in the 'War on Terror' generally would also be relevant. One thing you couldn't possibility draw from the figures, however, is that America's currently low preception in the world mirrored a pre-existing anti-Americanism in 2001.

If I thought he might actually read it, and stop attacking convenient strawman arguments and caricatures of 'the left', I'd be happy to provide him with a a long list of prominent progressive intellectuals who supported the war against the Taliban regime, and who've been very active in articulating a superior approach to fighting terrorism. Of course, he wouldn't as this would mean he would have to abandon his tradition of faux-centrism.

Gawenda lambasts the supposed silence of the Bush critics, but how can you be in a position to identify and judge silence if you've got your eyes closed and your hands over your ears?

UK Foreign Affairs Committee: Iraq War increased terror threat

2006-07-03T10:13:00.000+10:00

The UK Foreign Affairs Committee has released its fourth report for 2006, continuing Foreign Policy Aspects of the War on Terrorism (pdf). The report is worth reading, as it contains a refreshingly honest assessment of the deteriorating situation in the Middle East and the war on terror, in aftermath of the 2003 Iraq war, as well as several academic submissions which set up the current state of international law vis-a-vis response to terrorism, while looking at the scope and necessity of reform.

The latter review, is in my view, is to be welcomed for its coherence given the sweeping rhetoric coming out of Washington, and even Downing Street, which has tended to chronically overstate the inadequacy of the current collective security regime in constraining legitimate state-led action against the threat of terrorism. As public confusion over the international system, fear about terrorism, and the tendency of the public to view state failures as the responsibility of a monolithic UN "world police", have made the exceptionalist world-view more politically tenable, we need, all the more, voices like Professor Sands to countervail against those who would use the idea of a post 9/11 reality to permanently marginalise the UN process for their own pernicious agenda.

Former CIA man: bogus WMD claims remained in war case despite doubts about curveball

2006-06-26T16:11:00.000+10:00

Hot on the heals of Santorum's furphy headline grab, about 500 pre-1991 chemical weapon shells, is another WMD story.

WaPo has carried a piece about former CIA European Operations Chief, Tyler Drumheller, who claims to have vetted Powell's 2003 Security Council speech draft, determining that the references to alleged mobile labs, based on the claims of a source known as curveball, were suspect and should be removed.

Despite this account, the speech obviously went ahead with the allegations included. Indeed, Goss' subsequent investigation even yielded testemony from former director George Tenet denying that there were any doubts about curveball prior to the war.

"We thought we had taken care of the problem," said the man who was the CIA's European operations chief before retiring last year, "but I turn on the television and there it was, again."

While the administration has repeatedly acknowledged intelligence failures over Iraqi weapons claims that led to war, new accounts by former insiders such as Drumheller shed light on one of the most spectacular failures of all: How U.S. intelligence agencies were eagerly drawn in by reports about a troubled defector's claims of secret germ factories in the Iraqi desert. The mobile labs were never found.

Drumheller, who is writing a book about his experiences, described in extensive interviews repeated attempts to alert top CIA officials to problems with the defector, code-named Curveball, in the days before the Powell speech. Other warnings came prior to President Bush's State of the Union address on Jan. 28, 2003. In the same speech that contained the now famous "16 words" on Iraqi attempts to acquire uranium, Bush spoke in far greater detail about mobile labs "designed to produce germ warfare agents."

The warnings triggered debates within the CIA but ultimately made no visible impact at the top, current and former intelligence officials said. In briefing Powell before his U.N. speech, George Tenet, then the CIA director, personally vouched for the accuracy of the mobile-lab claim, according to participants in the briefing. Tenet now says he did not learn of the problems with Curveball until much later and that he received no warnings from Drumheller or anyone else.

The combination of the flimsy source, this testemony, and the other instances of OSP stove-piping and cherry-picking from the Iraqi National Congress, inclines me to see incompetence and deceit.

I mean, it's same thing that happened with the pre-existing IAEA monitoring of the aluminium tubes prior to the war. In that case, it was known beforehand that the allegations were wrong (the tubes were assessed as inappropriate for centrifuge), yet Rice et al continued to sell the story as a "nuclear smoking gun".

So much for the talking point that "...the intelligence community agreed Iraq had WMD."

Deputy SG Malloch on US leadership at the UN.

2006-06-08T13:36:00.000+10:00

Deputy Secretary General of the UN, Mark Malloch, in a bold move for a civil servant, recently delivered an emphatic rebuke of US exceptionalism, as part of a speech entitled Power and Superpower, about US leadership and reform, in light of the imminent budget crisis. Despite a couple of quibbles you might make, the speech is pretty much spot on the money, and definitely jells nicely with the constructivist narrative of post-WWII US interests - whereby, contra the neo-conservative view, the US sees itself as having a concrete stake in positing a sustainable system of international law, backed by the globalisation of liberal values, universalist norms and strong institutions.

Here are some excerpts:

Multilateral compromise has always been difficult to justify in the American political debate: too many speeches, too many constraints, too few results. Yet it was not meant to be so.

The all-moral-idealism-no-power institution was the League of Nations. The UN was explicitly designed through US leadership and the ultimate coalition of the willing, its World War II allies, as a very different creature, an antidote to the League’s failure. At the UN’s core was to be an enforceable concept of collective security protected by the victors of that war, combined with much more practical efforts to promote global values such as human rights and democracy.

Underpinning this new approach was a judgement that no President since Truman has felt able to repeat: that for the world’s one super-Power -- arguably more super in 1946 than 2006 -- managing global security and development issues through the network of a United Nations was worth the effort. Yes it meant the give and take of multilateral bargaining, but any dilution of American positions was more than made up for by the added clout of action that enjoyed global support.

To take just one example, 10 years ago UN peacekeeping seemed almost moribund in the aftermath of tragic mistakes in Rwanda, Somalia and Yugoslavia. Today, the UN fields 18 peacekeeping operations around the world, from the Congo to Haiti, Sudan to Sierra Leone, Southern Lebanon to Liberia, with an annual cost that is at a bargain bin price compared to other US-led operations. And the US pays roughly one quarter of those UN peacekeeping costs -- just over $1 billion this year.

That figure should be seen in the context of estimates by both the GAO and RAND Corporation that UN peacekeeping, while lacking heavy armament enforcement capacity, helps to maintain peace -- when there is a peace to keep -- more effectively for a lot less than comparable US operations. Multilateral peacekeeping is effective cost-sharing on a much lower cost business model and it works.

That is as it should be and is true for many other areas the UN system works in, too, from humanitarian relief to health to education. Yet for many policymakers and opinion leaders in Washington, let alone the general public, the roles I have described are hardly believed or, where they are, remain discreetly underplayed. To acknowledge an America reliant on international institutions is not perceived to be good politics at home.

Take the issue of human rights.

When Eleanor Roosevelt took the podium at the UN to argue passionately for the elaboration of a Universal Declaration of Human Rights, the world responded. Today, when the human rights machinery was renewed with the formation of a Human Rights Council to replace the discredited Commission on Human Rights, and the US chose to stay on the sidelines, the loss was everybody’s.

I hope and believe the new Council will prove itself to be a stronger and more effective body than its predecessor. But there is no question that the US decision to call for a vote in order to oppose it in the General Assembly, and then to not run for a seat after it was approved by 170 votes to 4, makes the challenge more difficult.

More broadly, Americans complain about the UN’s bureaucracy, weak decision-making, the lack of accountable modern management structures and the political divisions of the General Assembly here in New York. And my response is, “guilty on all counts”.

But why?

In significant part because the US has not stuck with its project -- its professed wish to have a strong, effective United Nations -- in a systematic way. Secretary Albright and others here today have played extraordinary leadership roles in US-UN relations, for which I salute them. But in the eyes of the rest of the world, US commitment tends to ebb much more than it flows. And in recent years, the enormously divisive issue of Iraq and the big stick of financial withholding have come to define an unhappy marriage.

As someone who deals with Washington almost daily, I know this is unfair to the very real effort all three Secretaries of State I have worked with –- Secretary Albright, Secretary Powell and Secretary Rice -– put into UN issues. And today, on a very wide number of areas, from Lebanon and Afghanistan to Syria, Iran and the Palestinian issue, the US is constructively engaged with the UN. But that is not well known or understood, in part because much of the public discourse that reaches the US heartland has been largely abandoned to its loudest detractors such as Rush Limbaugh and Fox News. That is what I mean by “stealth” diplomacy: the UN’s role is in effect a secret in Middle America even as it is highlighted in the Middle East and other parts of the world.

One day soon we must address the massive gap between the scale of world issues and the limits of the institutions we have built to address them. However, today even relatively modest proposals that in any other organization would be seen as uncontroversial, such as providing more authority and flexibility for the Secretary-General to shift posts and resources to organizational priorities without having to get direct approval from Member States, have been fiercely resisted by the G-77, the main group of developing countries, on the grounds that this weakens accountability. Hence the current deadlock.

What lies behind this?

It is not because most developing countries don’t want reform. To be sure, a few spoilers do seem to be opposed to reform for its own sake, and there is no question that some countries are seeking to manipulate the process for their own ends with very damaging consequences. But in practice, the vast majority is fully supportive of the principle of a better run, more effective UN; indeed they know they would be the primary beneficiaries, through more peace, and more development.

So why has it not so far been possible to isolate the radicals and build a strong alliance of reform-minded nations to push through this agenda?

I would argue that the answer lies in questions about motives and power.

Motives, in that, very unfortunately, there is currently a perception among many otherwise quite moderate countries that anything the US supports must have a secret agenda aimed at either subordinating multilateral processes to Washington’s ends or weakening the institutions, and therefore, put crudely, should be opposed without any real discussion of whether they make sense or not.

The UN is not without its faults, but the neo-conservative campaign of UN marginalisation, based on appeals to jingoism, US exceptionalism and superficial talking points, which somehow finds traction in the News Ltd echo-chamber, arguably constitutes one of the most mendacious and incoherent manifestations of modern sloganeering politics ever. Constructive criticism is fine, but the blatant UN-bashing we've seen is anything but that. Such deeply hostile attitudes towards the UN, inevitably rest on a complete misunderstanding of the UN system, international law, the supreme danger of multi-year global conflict, the benefits of multilateralism, the empirical record of peace, and the vision of the Atlantic Charter consensus.

Anyway, Bolton has a predictably puerile and red-meat response to all this, which manages to show considerable outrage, without actually addressing anything of substance. Typical.

I said I've known you since 1989, and I'm telling you this is the worst mistake by a senior UN official that I have seen in that entire time. That's why the only hope I think is that the Secretary General comes to the rescue of the organization and repudiates the speech.

This particular quote sticks out to me as a good exemplar of the kind of hyper-militancy these hardliners love to decry in left-wing populists like Michael Moore. I mean, how ridiculously stupid is it to rate Malloch's harsh tone, toward the Bush administration and Fox News, as the greatest failure of the Secretariate since 1989? I mean, hello - what about corruption, genocide, and real humanitarian failures? You know, anything that might actually register on a normative scale of any significance?

Sorry, but Mr Bolton's umbrage is about as convincing as the idea that he's actually committed to UN reform, and making the system work. He speaks with an awful lot of pith and self-righteousness for someone who's completely missed the most important lessons in IR theory for the last hundred years, and whose very unsuitability for the job required a recess appointment to remedy. As far as I'm concerned, the sooner Bolton stops playing spoiler to the UN process, and gets back in the AIPAC lunchbox he came from, the better.

Phillippe Sands speaks at the New American Foundation

2006-04-04T14:33:00.000+10:00

If you haven't already, I encourage you to check out Phillippe Sand's presentation at the New America Foundation, a promising public discourse forum, set up by the guy who runs The Washington Note.

( WMV / MP3 )

Sands is the author of Lawless World: America and the Making and Breaking of Global Rules--From FDR's Atlantic Charter to George W. Bush's Illegal War. The book details how the US has shifted from a positive and bipartisan consensus about the value and legitimacy of international rules, from the time of FDR and Churchill, right up to the present where American foreign policy has been hijacked by a small group of reactionary American exceptionalists. Sands, as a supporter of the pre-Reagan American tradition, international lawyer, and law professor, gives an articulate account of this transition, as well as a tightly reasoned analysis of the problems inherent to such unsustainable short-term thinking.

When listening to Sands one cannot help but be struck by the paucity of debate, and critical reflection, over these fundamental issues in Australia and America, especially in light of the growing mess in Iraq. Instead, the political discourse in both countries is mired by a clueless media, and all the highly manufactured dichotomies that prevail when talking points and sound bites rule the day.

Highly recommended.

Imperfect Media - Israel and Palestine

2006-04-03T09:18:00.000+10:00

Today's Age contains an opinion piece by Michael Gawenda, former editor at large, about flawed media coverage of the Israel Palestinian conflict, in light of the recent election. The piece is not terribly polemical, but it definitely tries to disguise where he's going. At the start of the piece, Gawenda hedges in defence of broad journalistic practice, and the knowledge base that informs it, but he then goes on to take a broadside at, what is in his view, a one-sided narrative about the conflict. That is, this familiar idea, that by focusing on the immediate victimhood of the Palestinian situation, the media encourages a kind of fatalism and responsibility free environment for the leadership, which robs the conflict of symmetrical accountability.

When it comes to reporting this conflict, not only do a lot of journalists know little about these narratives, but for obvious and non-malign reasons, they quickly conclude that the Palestinian story, whatever the history, is one that has led them to great suffering and dispossession, which means the Israeli story must be about conquest and occupation of stolen land.
The paradigm is one of victims and victimisers, helpless and hopeless Palestinians on the one hand and brutal occupiers and oppressors on the other. One narrative is true and tragic and one narrative is false, an example of the colonialist's lies and propaganda.
One result of seeing the conflict through this paradigm is that by reducing Palestinians to victims, their leaders are reduced to victims as well and are excused from taking any responsibility for their political failings, for the corruption that they encouraged and from which they personally benefited, from taking responsibility for the opportunities they passed up to improve the lives of their long-suffering people and perhaps even give the Palestinians the state that is so clearly their right.

Leaving aside the facts for a moment, I can certainly agree with the sentiment here in a wide sense, that we should not try to lock people in to victimhood and whitewash their leadership's responsibility. But what about this?

Why is it that for all the hundreds of journalists covering the conflict, there was no great attempt to expose the massive corruption of Fatah under Yasser Arafat, which most journalists knew about and which led to the squandering of billions of aid dollars that could have been spent, should have been spent, to give the Palestinians an economic future?

Contary to this account, basically every mainstream press article I've read covering the Palestinian election has mentioned the well-documented corruption of the Fatah regime, as either a background history, or through political analysis, as a direct antecedent reason for the victory. If you accept that, and I think I'm media junkie enough to have a decent idea of how the western press generally covers big news items, then it would seem this alleged bias only existed generally prior to the election coverage. But does that not then beg the question, that the victim narrative explanation is hardly exhaustive? What of the obvious point, which Gawenda overlooks, that perhaps the motives of commercial media makes continually re-accounting for well-established facts untenable, as only new and controversial things are newsworthy? The election provided a reason to go over this territory, that wasn't there before. Moreover, what of the basic fact of western consumer self-identification, within which the media is necessarily enmeshed, which dictates that the news is going to be intrinsically focused on the 'like' Israel, more than the Arab 'other'?

I think it's obvious Gawenda has gone for the easy answer here - rather than trying to address any of the other explanations for the media asymmetry he sees.

Though I don't deny that the victim thesis has some merit, it's an interesting time to allege this bias, when we're arguably at the apex of post-9/11 Arab=terrorist hysteria. Furthermore, how might we square this supposed anti-Israel orthodoxy with the analysis of Walt and Mearsheimer? These two senior realist foreign policy academics have recently concluded a press survey which tries to demonstrate the presence of an Israel lobby, which is said to be strongly affecting and distorting American perspective and policy, such that it countervails against their strict, realist view of US national interests?

I'll leave that one for the punters.

Former Delta Quizzed on Iraq

2006-03-28T17:14:00.000+11:00

Eric Haney, a retired command sergeant major of the U.S. Army, cuts loose on the Bush Administration.

Q: What's your assessment of the war in Iraq?
A: Utter debacle. But it had to be from the very first. The reasons were wrong. The reasons of this administration for taking this nation to war were not what they stated. (Army Gen.) Tommy Franks was brow-beaten and ... pursued warfare that he knew strategically was wrong in the long term. That's why he retired immediately afterward. His own staff could tell him what was going to happen afterward.
We have fomented civil war in Iraq. We have probably fomented internecine war in the Muslim world between the Shias and the Sunnis, and I think Bush may well have started the third world war, all for their own personal policies.
Q: What is the cost to our country?
A: For the first thing, our credibility is utterly zero. So we destroyed whatever credibility we had. ... And I say "we," because the American public went along with this. They voted for a second Bush administration out of fear, so fear is what they're going to have from now on.
Our military is completely consumed, so were there a real threat - thankfully, there is no real threat to the U.S. in the world, but were there one, we couldn't confront it. Right now, that may not be a bad thing, because that keeps Bush from trying something with Iran or with Venezuela.
The harm that has been done is irreparable. There are more than 2,000 American kids that have been killed. Tens of thousands of innocent Iraqis have been killed ñ which no one in the U.S. really cares about those people, do they? I never hear anybody lament that fact. It has been a horror, and this administration has worked overtime to divert the American public's attention from it. Their lies are coming home to roost now, and it's gonna fall apart. But somebody's gonna have to clear up the aftermath and the harm that it's done just to what America stands for. It may be two or three generations in repairing.
Q: What do you make of the torture debate? Cheney ...
A: (Interrupting) That's Cheney's pursuit. The only reason anyone tortures is because they like to do it. It's about vengeance, it's about revenge, or it's about cover-up. You don't gain intelligence that way. Everyone in the world knows that. It's worse than small-minded, and look what it does.
I've argued this on Bill O'Reilly and other Fox News shows. I ask, who would you want to pay to be a torturer? Do you want someone that the American public pays to torture? He's an employee of yours. It's worse than ridiculous. It's criminal; it's utterly criminal. This administration has been masters of diverting attention away from real issues and debating the silly. Debating what constitutes torture: Mistreatment of helpless people in your power is torture, period. And (I'm saying this as) a man who has been involved in the most pointed of our activities. I know it, and all of my mates know it. You don't do it. It's an act of cowardice. I hear apologists for torture say, "Well, they do it to us." Which is a ludicrous argument. ... The Saddam Husseins of the world are not our teachers. Christ almighty, we wrote a Constitution saying what's legal and what we believed in. Now we're going to throw it away.

A terrific and plain spoken testimony. Haney is absolutely correct in pointing out that many Americans listened to their worst demons in electing Bush a second time. It's a refreshing change from the usual "middle American voters are never wrong" apologia, which completely abrogates the public's responsibility in all this.

Furthermore, coming from a former member of Delta Force, this analysis is not as easily silenced either. The usual Rovean tactic of accusing the opposition of being ivory tower elites, and anti-military peaceniks, who aren't prepared to keep America safe, won't work on this guy.

Haney joins an ever growing chorus of military voices, like John Murtha, and several Iraq war veteran 2006 hopefuls, who rightly don't mince words about the ongoing debacle in Iraq. Good on them I say.

Further evidence of Iraq predetermination

2006-03-28T09:39:00.000+11:00

Just as Blair has finished razzle-dazzling the Australian Parliament with another eloquent recital of the go the course mantra, a memorandum has come to light, via the New York Times, that adds further support to the existing Downing Street Memo thesis, that there was a predetermined policy to attack Iraq.

In the weeks before the United States-led invasion of Iraq, as the United States and Britain pressed for a second United Nations resolution condemning Iraq, President Bush's public ultimatum to Saddam Hussein was blunt: Disarm or face war.

But behind closed doors, the president was certain that war was inevitable. During a private two-hour meeting in the Oval Office on Jan. 31, 2003, he made clear to Prime Minister Tony Blair of Britain that he was determined to invade Iraq without the second resolution, or even if international arms inspectors failed to find unconventional weapons, said a confidential memo about the meeting written by Mr. Blair's top foreign policy adviser and reviewed by The New York Times.

"Our diplomatic strategy had to be arranged around the military planning," David Manning, Mr. Blair's chief foreign policy adviser at the time, wrote in the memo that summarized the discussion between Mr. Bush, Mr. Blair and six of their top aides.

"The start date for the military campaign was now penciled in for 10 March," Mr. Manning wrote, paraphrasing the president. "This was when the bombing would begin."

The timetable came at an important diplomatic moment. Five days after the Bush-Blair meeting, Secretary of State Colin L. Powell was scheduled to appear before the United Nations to present the American evidence that Iraq posed a threat to world security by hiding unconventional weapons.

Although the United States and Britain aggressively sought a second United Nations resolution against Iraq — which they failed to obtain — the president said repeatedly that he did not believe he needed it for an invasion.

This memo just documents what most of us already know. That is, there was no real evidentiary threshold in setting the course for war in Iraq, and all the puff about enforcing disarmament resolutions and genuine ultimatums was purely political cover for a predetermined policy.

What strike me most clearly about this, however, is how utterly disingenuous it makes the News Ltd-led media account of the French veto prior to the war. More specifically, it's a complete invalidation of that dichotomy, dominant at the time, which (mis)characterised the French position as an absolutist obstruction against any military action, in to the future, regardless of evidence or need.

Back then, we were erroneously meant to believe, that the French position was that they would veto any motion to take action against Iraq regardless. This gave Bush the always potent 'smelly frogs' angle, as well as providing a useful shield against the US's unilateral withdrawal from the doomed second UN resolution. This was important because it helped conceal that nobody actually supported an automatic trigger for war in the Council - which was the real crux of the issue, and the actual target of the veto threat.

In reality, the French veto threat, despite whatever valid arguments you can make about their Oil For Food involvement and financial motives, was entirely appropriate and non-absolutist. They merely defended what a majority in the Council thought - that an automatic trigger for war, prematurely ending the UNMOVIC inspection process, and locking the Security Council out of the evaluation and authorisation process, was illegitimate and should be blocked.

Indeed, given that the prior resolution framework required that the Council maintain apprised of the matter, that the Charter has a substantive commitment to war as a last resort, and that the Council cannot delegate Chapter VII authority, (as opposed to standard military operational authority), carte blanche, let alone from resolutions pertaining to Kuwait over a decade ago, I would argue it was the only legally permissible position. Before being leaned on, I'd imagine that's also what Lord Goldsmith felt as well, at least privately.

In light of this memo, we see how ridiculous this press narrative really was back then. It wasn't the frogs who had the absolutist and automatic position, unresponsive to the facts on the ground, it was Bush, who certainly wasn't bound to any kind of evidentiary burden that might make an argument from accountability make sense.

Study: atheists least trusted minority in America

2006-03-23T10:23:00.000+11:00

A new study by Penny Edgell, associate professor of sociology for the University of Minnesota, questions the much vaunted idea of Christian tolerance.

From a telephone sampling of more than 2,000 households, university researchers found that Americans rate atheists below Muslims, recent immigrants, gays and lesbians and other minority groups in “sharing their vision of American society.” Atheists are also the minority group most Americans are least willing to allow their children to marry.

Even though atheists are few in number, not formally organized and relatively hard to publicly identify, they are seen as a threat to the American way of life by a large portion of the American public. “Atheists, who account for about 3 percent of the U.S. population, offer a glaring exception to the rule of increasing social tolerance over the last 30 years,” says Penny Edgell, associate sociology professor and the study’s lead researcher.

Edgell also argues that today’s atheists play the role that Catholics, Jews and communists have played in the past—they offer a symbolic moral boundary to membership in American society. “It seems most Americans believe that diversity is fine, as long as every one shares a common ‘core’ of values that make them trustworthy—and in America, that ‘core’ has historically been religious,” says Edgell. Many of the study’s respondents associated atheism with an array of moral indiscretions ranging from criminal behavior to rampant materialism and cultural elitism.

Edgell believes a fear of moral decline and resulting social disorder is behind the findings. “Americans believe they share more than rules and procedures with their fellow citizens—they share an understanding of right and wrong,” she said. “Our findings seem to rest on a view of atheists as self-interested individuals who are not concerned with the common good.”

The researchers also found acceptance or rejection of atheists is related not only to personal religiosity, but also to one’s exposure to diversity, education and political orientation—with more educated, East and West Coast Americans more accepting of atheists than their Midwestern counterparts.

Wow, according to much of "Middle America", my lack of theism makes me less trustworthy than gays, Muslims and immigrants. I'm not sure which is worse, the simplistic attitude towards lack of theistic belief, or the fact that these people quantify their distrust on a scale which so convincingly reveals their petty prejudices.

It's also quite amazing how mainstream this view is that morality stops at the waters edge of religiosity, despite there not being any convincing arguments, or facts, to sustain such a position. Since Reagan, it seems religious Americans have been whipped in to a frenzied, reactionary state over godless liberalism, and its supposed threat to them and their values. Despite having a solid hold on the GOP, with its virtually unchallenged domain over all three branches of government, the Christian right persists in this absurd persecution complex, fearing the whopping 3% of American atheists that are banging at the gates of "their" country.

Well, if they want to look at moral decline, they better start looking in their own backyard first. If you look at the rates of divorce and teenage pregnancy in the religious heartlands of the US, compared to the more cosmopolitan blue states, and you'll see how this narrative has little empirical backing.

The trend isn't limited to inter-state comparisons either, if we are to believe Cross-National Correlations of Quantifiable Societal Health with Popular Religiosity and Secularism in the Prosperous Democracies.

You don't need pesky facts or debate though, if you've got the American Taliban.

Time asks was Iraq worth it?

2006-03-22T14:01:00.000+11:00

Time magazine has surveyed some international thinkers on whether the Iraq war has been worth it. I've posted the opinions that most closely reflect my position.

FRANCIS FUKUYAMA I believe that the balance sheet for the war at this moment is quite negative. The war foreclosed the possibility of Saddam restarting his WMD programs and replaced his dictatorship with Iraq's new democracy--both real gains. Balanced against these gains are costs that go well beyond the direct human and financial ones. The occupation of Iraq has served as a tremendous stimulus for Arab and Muslim anti-Americanism and thus has made radical Islamist terrorism significantly worse than it would otherwise be. America's reputation around the world has taken a huge hit among ordinary people who are now more likely to associate our democracy with scenes of prisoner abuse than with the Statue of Liberty. We, of course, do not know what the future will bring, but the upside potential of Iraq's post-Saddam order looks more and more limited. The central state will remain weak for years to come, and where the Shi'ite parties have established their rule, we get not a liberal democracy but an Iranian-style rule by clerics.

> Fukuyama is a professor at the Johns Hopkins School of Advanced International Studies and the author of America at the Crossroads: Democracy, Power, and the Neoconservative Legacy

BERNARD-HENRI LEVY No. Because it was the wrong target: Iran and Pakistan are infinitely more threatening. Because it was the wrong approach: the neoconservatives, who put no stock in government policy at home and thus can't do so abroad, produced no plans for democratic nation building. And, above all, because this war, which aimed to reduce the number and strength of terrorists, has instead increased them. What was needed was to break the infernal cycle of the "clash of civilizations," à la Sam Huntington and Osama bin Laden. Instead, the war breathed new life into it. In short, rarely have the famous words of Blaise Pascal rung more true: "He who would act the angel becomes the beast." What begins as a noble moral intention to bring down a tyrant becomes a political disaster and a gigantic step backward in the long, necessary war against fascislamism. A field of ruins!

> French philosopher Lévy is author of the recently published American Vertigo

ANNE-MARIE SLAUGHTER Is the cause of freeing a people and pushing for progressive political and economic change in the most dangerous region in the world worth fighting and dying for? Undoubtedly. But has this war--with its disdain for allies and institutions, its willful blindness to any scenario other than easy victory and immediate democracy, and its planners' irresponsibility so deep as to be immoral in failing to protect the heritage, infrastructure and lives of a people who never asked for war--been worth it? Squandering lives and vast sums of money through a combination of arrogance and negligence can never be worth it. And if the Administration had been willing to make a full and honest assessment of the true costs and the uncertainty of the benefits before invading Iraq, I doubt that a majority of the American people would have supported the war.

> Slaughter is the dean of the Woodrow Wilson School of Public and International Affairs at Princeton University

LAWRENCE B. WILKERSON I'm principally a strategist, and from that perspective the war has been a disaster. First, the foremost winner has been Iran: it rid itself of its greatest threat, Saddam and his military, without firing a shot; won the Dec. 15 Iraq elections; owns the south, particularly Basra; and has felt the freedom to elect Mahmoud Ahmadinejad, who, in turn, has felt the freedom to reclaim leadership of radical Islam, leadership Osama bin Laden claimed on 9/11. Second, the foremost loser--after Iraq itself--has been Israel, whose leaders must now fear more than ever the new strategic maneuver room afforded Iran by the U.S.'s ineptitude. Third, the general war against global terrorists has been affected greatly by the failure in Iraq. Recruiting among Muslim ranks has been aided significantly, while America has squandered the upper hand in the world of ideas, which is the real battlefield of this conflict.

> U.S. Army Colonel Wilkerson, now retired, was chief of staff for Secretary of State Colin Powell

BERNARD KOUCHNER No, because of the way Americans went about it. I think it was up to the international community to pull together and get rid of Saddam for the Iraqi people. I have long argued for the "right to intervene." But you have to succeed. To do that, you need the international community standing with you. Saddam had been a major assassin in his country for 35 years. What difference would a few weeks have made? They should have done as we did in Kosovo, setting up a contact group and relying on international cooperation and peacekeepers.

> Kouchner, former U.N. administrator for Kosovo, co-founded France's Médecins Sans Frontières and Médecins du Monde

I like these quotes because they go against the grain of this fallacy that one is either pro-intervention (and thus pro-Iraq war) or pro-tyranny. Right wing talking heads have attacked the latter strawman as a product of this supposed notion of Westphalian sovereignty, and pre-9/11 foreign policy orthodoxy. Of course, this is nonsense, and Iraq opposition is certainly broader than some imagined anti-interventionist orthodoxy. In the above quotes, Slaughter's and Kouchner's in particular, we see some principled opposition to Saddam's regime, but without the with-us or against-us mentality, that maddeningly precludes having a position on humanitarian intervention within the legitimating rubric of international institutions and the collective security regime.

I was also satisfied to hear the dirty Frenchman echo a sentiment I've previously expressed. That is, it is hardly a surprise that the Bush Administration has been so incompetent at the post-war phase of Iraq, when its election platform specifically decried the idea of nation building, and the Republican machine ideology is pretty much built around scepticism of good governance.

Top 10 missteps of the third year in Iraq

2006-03-21T13:53:00.000+11:00

Juan Cole, has posted his Top Ten Catastrophes of the Third Year of American Iraq:

1. The Shiite religious parties, having won a majority in parliament, took over the Ministry of the Interior and drew, for its special police commandos, on members of the Badr Corps. Badr is the paramilitary of the Supreme Council for Islamic Revolution in Iraq, and it was trained by Iran's Revolutionary Guards. These special commandos set up secret prisons and tortured Sunni Arabs they suspected of being in the guerrilla resistance to the new order.

2. The constitution drafted by the elected parliament enshrines Islam as the religion of state and stipulates that the civil parliament may pass no legislation that contravenes the established laws of Islam. It hints that clerics and ayatollahs will be appointed to court benches. The constitution has brought Iraq to the brink of being an Islamic Republic, with potentially harmful effects on the rights of women, gays, Christians and others. Since the Shiite religious parties had won the January 30, 2005 elections, this outcome was predictable.

3. The constitution allows provinces to establish provincial confederacies. This provision reflections the model adopted by the Kurds in the north, which is now attractive to Shiite parties in the south. These confederacies can claim 100 percent of the revenues from all future petroleum, natural gas and other natural resource finds. The loose, weak federal government, like the early American state under the Articles of Confederation will be robbed of sovereignty (and income) by ambitious provincial elites. It is possible that these provincial confederacies may break up the country.

4. The US military used Kurdish and Shiite troops to attack the northern Turkmen city of Talafar in August. Kurdish troops, drawn from the Peshmerga militia, were allowed to paint lasers on targets in the city, which were then destroyed by the US air force. Entire neighborhoods were destroyed, and much of the population was displaced for some time. Shiite troops and local Shiite Turkmen informants were used to identify and interrogate alleged Sunni insurgents. Turkey was furious at the attack on ethnically related Turkmen and threatened to halt its cooperation with the US. Although the attack was allegedly undertaken to capture foreign forces allegedly based in the city, only 50 were announced apprehended. The entire operation ended up looking like a joint Kurdish-Shiite attack on Sunni Turkmen, backed by the US military. Turkmen and Kurds do not generally get along, and Turkmen accuse Kurds of wanting to ethnically clense them from Kirkuk. The entire operation was politically the worst possible public relations for the US in northern Iraq, and seems unlikely to have put a signficant dent in the guerrillas' capabilities.

5. All three Sunni Arab-majority provinces rejected the new constitution by a sound margin, two of them by a two-thirds majority. The Kurdish and Shiite provinces overwhelmingly approved the charter. Iraq thus has a permanent constitution that is absolutely unacceptable to the country's most powerful minority.

6. British government leakers revealed that George W. Bush told British PM Tony Blair in April, 2002, that he was seriously considering bombing the HQ of the Aljazeera satellite news channel. Bush's reputation, already low in the Arab world, took another hit.

7. Iraqi petroleum exports fell to an average of only 1.8 million barrels a day during the past year, down from 2.8 million barrels per day before the war. In recent months the exports have been as low as 1.1 million barrels a day.

8. Guerrillas have managed to surround and cut off Baghdad, the capital and a population center with 1/4 of the country's inhabitants, from much fuel and electricity.

9. Widespread hopes, fanned by the Bush administration, that Sunni Arab participation in the parliamentary elections would lead to a reduction in guerrilla violence proved completely untrue. The various Sunni Arab lists garnered 58 seats of 275. The Sunni Arabs have now adopted a two-track strategy, working in parliament to play the Kurds and the Shiites off against one another while its paramilitary wing continued to blow things up with unrelenting ferocity.

10. Guerrillas in Samarra on February 22 blew up the Askari Shrine, holy to Shiites because of its association with the hidden Twelfth Imam, whose Second Coming many await. The Sunni Arab guerrilla movement has been trying to provoke popular attacks and sectarian reprisals, but this is the first time it met with a measure of success. Enraged Shiites attacked 100 mosques, damaging between two and four dozen, killing some Sunni clerics, and murdering hundreds of Sunnis. Iraqi clerics, both Shiite and Sunni, helped bring Iraq back from the brink of hot civil war. The US troops in the country proved generally unuseful in this crisis.

We already know the major stuff ups from the first years, like the looting, Abu Ghraib, the lack of attempts to woo the tribes, the dissolution of the army, etc., so I thought this list was less worn territory.

Putting aside quibbling about the order, or why the ongoing graft issues aren't prominent, it's interesting to note how many of them are related to perception. Cole has extensive knowledge of the Middle East, and his observations about losing hearts and minds, and catalysts for sectarian violence, should be given a lot of weight.

Pseudo intellectual rags

2006-03-15T10:17:00.000+11:00

I was walking down Exhibition Street yesterday, toward my tram stop, when I decided to check out a local newsagency. I wanted to see if I could get some reading material for the trip home. The newsagency I stopped at, near the florist, I consider to be pretty decent, stocking respectable periodicals like Foreign Affairs and The Economist, so I wasn't too fussed about what I picked out.

So, when I went to read my shiny new copy of The Institute of Public Affairs journal I was quite unprepared for how utterly shithouse and superficial it was. Though the writing sought to convey that the think tank was engaged in a genuine academic discourse, purportedly discussing the causes of war, international relations and political economy – what was really on offer was cultural war iteration XXI, bland apologetics about the narrow Washington consensus, and all the common fallacies and caricatured reasons about "perfect markets" we’ve come to expect from crazy libertarians.

With this, the Center for Independent Studies , and the Sydney Institute all vying to be our homegrown intellectual gatekeepers, with their wonderfully impartial sounding names, is it any wonder the Australian public is so politically enlightened?

Publish or perish

2006-03-07T10:41:00.000+11:00

Yesterday I submitted the piece below to The Age newspaper - a good Melbourne based broadsheet.

Katrina red herring, soft on neo-con sacred cows

Michael Gawenda, (Opinion, 06/03), is, as usual, trying a bit too hard to render Bush sympathetic and his ideology benign. Gawenda ridicules the notion of the US as the unstoppable hegemon, by pointing to the Katrina response debacle, but this is a red herring. It has never been argued by Bush detractors that the malfeasances of the Bush Administration, at an international level, are a product of supreme competence at a domestic level. Indeed, it's illogical to suppose the two must be related. America's capacity to act as a superpower abroad certainly doesn't hinge on good governance at home.

Moreover, there's a strong case to be made that the success of the modern conservative movement, of which Bush is a part, is tied to selling scepticism about government anyway, which would explain why universal health care, and many other public goods, remain off the political radar despite a solid majority wanting them.

Gawenda concludes with some contrived wistfulness about the prospects of the political pendulum swinging back toward isolationism, but he refuses to actually put the blame for the failed neo-conservative project where it belongs. The American public isn't now, and nor was it ever, faced with a binary choice between Pat Buchanan style traditionalist conservative isolationism, or the hopelessly corrupt neo-conservative Pax-Americana. Whilst ever journalists like Gawenda keep going soft on the real culprits and treating American exceptionalism and unilateral preventative war as benign, sacred cows, such false dilemmas are doomed to wreak the havoc they will.

My response was perhaps a little aggravated, given that Gawenda's original piece on the 6/3 wasn't really that offensive. If it was a once off, I would not have bothered. But it's not a once off for Gawenda, it's part of a pattern of him apologising for Bush, and Bush voters, and I finally got fed up with this softly-softly equivocation. It's bad enough that The Age has Tony Parkinson reading from the neo-con script, but when Gawenda, who usually occupies the middle ground, starts doing little but repeating RNC talking points, it got my goat.

The Age in its infinite corrective wisdom, decided to publish my letter in an abridged form. You can see it here for today. Amusingly they added a grammatical error - by changing hegemon (the actor) to hegemony (the force).

As for what bits they deleted, it was mostly good editing - they got rid of unnecessary attack words, which didn't really add anything to the letter. The only bit I was kind of disappointed in was the last comment about American exceptionalism, (meaning the way the United States tries to rely on norms to constrain others, whilst rejecting those same norms when it comes to itself), and preventative war, (the notion that war can be made under the rubric of self-defence without a real proximate threat). Both these notions are hopelessly confused and a big reason for why even the few vaguely honest neo-conservatives, like Fukuyama, will never be able to rescue even an ember of intellectual respectability from the project he has now rejected.

Gawenda is not the only journalist guilty of prevaricating about these fundamental issues, but he's certainly someone who's capable of better than playing apologist, and miscasting the blame for future American isolationism, by implication, on to nameless negative cheerleaders on the sidelines.

Hamas elected over Fatah

2006-01-27T11:44:00.000+11:00

http://news.bbc.co.uk/2/hi/middle_east/4650788.stm

Well Hamas has picked up 76 seats in their parliament, pushing aside the previous Fatah regime that was largely seen as corrupt and ineffectual. But is this really surprising? Fatah's corruption was notorious and it would seem to be quite a predictable response accompanying the general hardening of attitudes around the globe. This is what happens when political moderates are not strengthened in a polarised and uncertain geopolitical environment.

Though some commentators have speculated that Hamas may benefit from a process of politicisation and legitimisation, it's a very long way off still. The composition of the party is still the Hamas of old, and there isn't the same kind of seperation between Sinn Fein and the IRA yet. Their political party manifesto may not call for the destruction of Israel, but the intention is still there large as life, in the form of their terrorist activities and their militant charter - all of which severly undermines their credibility.

The only theoretical benefit I can think of in the shorter term is that Hamas may be able to better control the religious militants, and strengthen their position at the negotiation table, than the more secular Fatah Party was able to do. But, of course, this assumes that Hamas is willing to negotiate and can maintain their power if they do separate their political efforts from violence, and indeed that Israel would be prepared to trust anything Hamas says regardless.

Coming back to the polarisation question, a lot of people cite Gaddafi on WMD as evidence of positive effects of US military action in Iraq, but it's an observation that ignores many of the ways in which the negative political fallout has been considerable. In many ways, this latest victory by Hamas can be seen as a predictable response, mimicking the trend we've already seen happen in Iran, and to some extent Egypt, post Iraq, where progressive forces have been sidelined by hardliners. As Iraqi 'democracy' grows closer and closer ties to the Iranian Mullahs, it is certainly an interesting time to be watching international politics.

Juan Cole has a decent piece on this here.

Going to the Oz Open

2006-01-23T14:58:00.000+11:00

Well I'm off to see Federer and Haas play tonight at Rod Laver Arena. The Hingis - Stosur game should be good too. Been lucky in terms of the weather to have a reasonably cool day at 22 degrees, at least the heat won't ruin the night.

EDIT: The Federer match turned in to a thilling five setter, with both players showing amazing skills, hitting clean winners for all over the court. It was great to be able to kick back with a Heineken + calamari and chips and watch such great, world class tennis. I love Melbourne.

First Post

2006-01-23T00:54:00.000+11:00

Well I've finally set up a blog. Been meaning to do this for some time, but kept putting it off. Finding a name that isn't taken is the only real barrier to doing it though.