I’ve been traveling recently, and so have been away from posting. One of the enforced virtues of traveling – one of the few virtues of traveling for me these days – is the plane flight with no internet. And if the big guy in front of me reclines his seat, as he always does, I can’t even get to my computer. So I read on flights. I should have some reading gadget, Kindle or whatever, but I’m not that far along yet, and for that matter I should get an economy class friendly little word-processor to use on flights, but I’m cheap. Here’s a selection across the varied reading on my flights. No particular theme or order, I’m afraid (on account of the mixed-up topics here, I think I won’t open to comments; too jumbled to be productive).
(Update. I’m going to take out some stuff below- sitting in airports puts me in a bad mood, and it showed. I’ll repost some of it expressing less irritation another time.)
Moral Machines: Teaching Robots Right from Wrong, Wendell Wallach and Collin Allen (Oxford 2009). If anyone follows my posts over time here and at Opinio Juris, I have a large interest in robotics, war, law and ethics. And my most recent trip was to Stanford Law School, for a panel discussion of robotics, society and law – more on that in a separate post, but a great session on law and future technology. This is a terrific book, and not just for people interested in robotics and technology. It is manages to be both philosophically and technologically acute, and while not focused on law the way lawyers would focus, the questions raised clearly lead that direction.
Means to an End: US Interest in the International Criminal Court, Lee Feinstein and Tod Lindberg (Brookings Press 2009). If you are around DC on Monday afternoon, there will be a screening of part of a new documentary on the ICC, The Reckoning, and then a panel discussion afterwards featuring Jane Stromseth, Gary Solis, John Bellinger, and me, moderated by Ruth Wedgwood. Screening at 4:30-5:oo, panel discussion 5-6:00, at the Rome Auditorium, SAIS. This short book is well worth reading; I comment on it briefly here at Opinio Juris and on the general question of US relations with the ICC at this point in time (about which I am much more dubious than I was a year ago when I was commenting on drafts of this book; at that point I thought there was much more room for US engagement than I think there is today, but see my discussion at OJ).
In any case, this is a wonderfully clear book, and a surprisingly plainly written one, given that it is a “centrists reaching across the partisan divide” work. Lee and Tod are both old friends. Lee was foreign policy director for the Clinton campaign, former Clinton administration DOS official, and currently US ambassador to Poland. Tod is a Hoover fellow and editor of its marvelous journal Policy Review.
(Hint. If you don’t read Policy Review, you should – eclectic, readable, intelligent, and intellectual in the sense of never falling into “trivially academic” or “trivially policy” or “trivially political.” The intellectual political essay – under the hand of a skilled editor of mature judgment – is not dead. If you’re a writer and have something more significant than a blog post to say, you might want to suggest it to Policy Review as a 4,000 essay. This was the journal that launched, among other things, Robert Kagan’s Power and Weakness essay, for example – and which, if I may be so bold, was better as the Policy Review essay than as a book.)
Gods at War: Shotgun Takeovers, Government by Deal, and the Private Equity Implosion, Steven Davidoff (John Wiley 2009). The NYT’s Dealbook columnist and corporate law professor Steve Davidoff puts a lot of stuff together in a terrific book. It covers a lot of ground because its subject is dealmaking – as it cuts across private equity, hedge funds, sovereign wealth funds, the financial crisis, government bailouts … what fascinates me about this book, what makes it very special, is that Davidoff keeps the focus on the law and legal battles that create the frame in which the dealmaking takes place.
As such, he pushes back against a sense among many commentators that the legal stuff is merely the lawyers coming to act as scribes for transactions, the essential economics of which is set elsewhere. Davidoff reminds us that while that might be true in the middle of the bell curve, in ordinary times – when things go bad, for one side, both sides, all sides, then the words written down for all those contingencies turn out to matter, as words and sentences on paper. Judges will have to interpret them. The discussion of the evolution and interpretation of the “material adverse change” clause in the courts is worth the price of this book. Likewise the “regulation by deal” discussion that I originally saw in Davidoff’s paper with David Zaring. I think I will probably assign this book to my private equity course next term – there’s a lot of stuff that isn’t my focus, but this book can help my students understand some hugely important issues.
“Enemies need not be insane,” Christopher Caldwell’s Financial Times column of November 13, 2009 (sub req’d?). Caldwell particularly focuses on:
Public doctrine insists on a distinction between Islam and Islamism. Islam is a religion, and Americans are punctilious about respecting the religions of others. Islamism is a violent political ideology, a “perversion” of Islam if you like, that has already taken thousands of US lives. Voters will punish pitilessly any politician who does not fight it with every tool at his disposal.
Hence the crisis. Maj Hasan’s case shows that authorities are incapable of making the very distinction between Islam and Islamism that they insist the public make. That Maj Hasan was a Muslim need not concern Americans. But he was an Islamist, too, if that word has any meaning. And those who had the authority to monitor him more closely were either unable or unwilling to.
This is as well put as you are likely to find. But let me carry this one step further. Read the columnists or listen to the talking heads on NPR and note the preferred narrative of the moment. Why didn’t the military or the government or someone look any more closely at this and make some kind of judgment that this was dangerous? Because of An Elite Narrative that said, and which had trickled down years before, permeating official responses as both Sense and Sensibility, or the lack thereof, to ask these kinds of questions is to be a racist. Do it and it’s career suicide.
But the measure of elite narrative control is to play bait and switch, have your cake and eat it too: the ideologies of the elites will prevent anyone in officialdom from asking or acting on anything that contravenes official multicultural sensitivities. But when someone does shoot up the joint and kill a bunch of people (and they tend to be places like Ft. Hood and somehow not places like Sidwell, Dalton, St Albans, Crossroads High, etc.), then exactly the same set of Elite Narrative Commentators will sententiously ask why government and officialdom ignored all the warning signs. If you’re an NPR commentator or NYT editorial writer or WaPo opinion columnist, you get to have it both ways; if you’re the FBI or military official faced with all this stuff, you’re damned if you do and damned if you don’t.
Which is another way of saying that the currently preferred Elite Narrative of Ft. Hood is exquisitely tailored to insulate our Political and Media Elites from the blame that they are now scurrying to put upon officialdom. It must be nice to live in a world without accountability. In a Better World this kind of crime would result in also putting the occasional NYT op-ed writer on trial, pour encourger les autres, for having made it impossible to stop the actual perpetrator. In Our World, the ones who largely made the perpetrator unstoppable then proceed to conduct the public inquisition of Why He Was Not Stopped.
Actually, if you haven’t taken a look at Caldwell’s Reflections on the Revolution in Europe: Immigration, Islam, and the West (Doubleday 2009), you are missing the most important discussion I am aware of on these issues of global multiculturalism and the collapse of secular European public culture from the ideal of the liberal public-private divide into an ironically human rights-mediated ideal of global religious communalism (facilitating this changeover in the essential meaning of human rights from ‘liberalism’ to ‘multiculturalism’ will, in my view, turn out to be Human Rights Watch’s actual global legacy, by the way).
“Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009,” Mary Ellen O’Connell (draft book chapter up on SSRN). There is not very much that I agree with in this new paper by Mary Ellen O’Connell; my view is here. However, it is the plainest statement to date on how to view Predator strikes in Pakistan, and by extension various other places, as violations of international law and criminal law and war crimes. I admire it on the grounds of intellectual and moral honesty, although, I stress, it’s not so much a matter of disagreement as not sharing nearly any part of the intellectual world from which it comes. But I think the CIA in particular ought to take account of it, because although not my world view or, presumably, its, the chapter does capture with remarkable clarity the world view of the community that would finally like to put the CIA on trial. My view is that the “international law community” – what is sometimes called the “invisible college of international law” – already essentially agrees with its conclusions, even if it will take more circuitous and less obvious legal routes to get there and avoid expressing itself so plainly and directly.
But the invisible college of international law won’t get to those conclusions, in my estimation … until the day after the Obama administration leaves office, whereupon suddenly a whole series of legal conclusions will magically be pronounced “customary international law” dating back to Grotius or Vatel or someone, and a couple of sentences from some Nuremberg opinion will be deployed for the occasion, and various human rights groups will round up a bunch of countries on the Human Rights Council to lecture the US and as ever ignore Sudan, as they repose in human rights majesty listening to some special rapporteur drone on beneath the HRC chamber’s $23 million ceiling consisting, alas, of money partly diverted from Spain’s international development aid budget for, you know, really poor people, opining what a human rights abuser the US is and such war criminals its officials are, and the US, member of the HRC on account of its excess of zeal to be one of the multilateral good guys, mumbles apologies for existing, and finally the US, having joined the ICC as a little parting gift of the Obama administration, discovers that its officials in the CIA – but not, note, the DOS Legal Advisers office, which was so very, very careful not to say anything very specific about this – are subjected to legal investigations by the ICC prosecutor, and investigations by Spanish prosecutors eager to prove to their consciences that they have expunged Franco by embarking on human rights adventures abroad, although conspicuously not, in the real-politik of the real world, human rights adventures involving the New Hegemon, China, but instead focusing on the Country That Chose Decline … and so one of the genuine advances in discrimination in targeting in self-defense, targeted killing from stand-off remote platforms, will be removed from the US arsenal in what we might call the on-going ‘war against war’ currently underway by the Forces of Good Who Tend to Ignorance and Disavowal of Responsibility for Unintended Consequences (e.g., new terrrorist attacks against soft targets in South Asia, but hey, they’re not Americans!!), and the legal process thereof buttressed by expressions of support and amicus briefs by former Obama lawyers suddenly discovering they had views on these topics after all, and they all somehow tended toward the liability of the US and its agents.
The arguments will not be as reaching, and certainly not as plain – or as honest, come to that – as O’Connell’s, but I think pretty much every conclusion she reaches will be reached by the ‘visible and noisy’ college of international law:
Abstract:
Within days of his inauguration as president, Barack Obama ordered the CIA to continue President Bush’s policy of attacks by unmanned aerial vehicles (UAVs) or drones in Western Pakistan. By October of 2009, the CIA had launched around 80 drone attacks. These attacks cannot be justified under international law for a number of reasons. First drones launch missiles or drop bombs, the kind of weapons that may only be used lawfully in an armed conflict. Until the spring of 2009, there was no armed conflict on the territory of Pakistan because there was no intense armed fighting between organized armed groups. International law does not recognize the right to kill without warning outside an actual armed conflict. Killing without warning is only tolerated during the hostilities of an armed conflict, and, then, only lawful combatants may lawfully carry out such killing. Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime. Members of the United States armed forces could be lawful combatants in Pakistan if Pakistan expressly requested United States assistance in a civil war to end a challenge to Pakistan’s civilian government. No express request of this nature has been made. Even if it were made, drone attacks are the wrong tactic in the context of Western Pakistan. The CIA’s intention in using drones is to target and kill individual leaders of al-Qaeda or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750-1000 unintended victims. Drones are having a counter-productive impact in Pakistan’s attempt to repress militancy and violence. The use of the drone is, therefore, violating the war-fighting principles of distinction, necessity, proportionality and humanity.
Let me repeat one of those sentences in case the CIA counsel’s office was not paying attention:
Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime.
(Update.) I guess we might as well add Roger Cohen’s op-ed in the NYT, in which he takes up the subject of drone warfare and, seemingly having no idea what he actually thinks, decides to call for … a public debate. He has not thought very much or very long about drone warfare if he thought Jane Mayer’s recent New Yorker piece, as he says, “ground-breaking.” Only if you became aware of Predators last week.
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