InterVentions

Institutional protection, part 2

2010-02-01T17:59:00.000-05:00

The DOJ has rendered its judgment of John Yoo, et. al, and in a surprise to no one, it is a toothless one. They used 'poor judgment' concludes the report, kind of like when one regretfully chooses fish over steak at dinner or merlot over cabernet. This conclusion evidently waters down the more heady judgment of an earlier draft, which draft had recommended sanctions and possible disbarment.

But that draft was written in the heydays of moral accountability, the end of the Bush years. Now that we live in the we-only-look-forward-and-not-backwards Obama administration, all past government crimes can see the light of day with no fear of liability.

So, now we can see the clear trajectory: DOJ lawyers can be accountable only to the DOJ; and the DOJ will not hold its own accountable because that would harm the DOJ's image.

When are we going to have an independent arbiter for these crimes?

Institutional protection

2009-12-06T14:20:00.000-05:00

Scott Horton over at Harper's reports that the Obama DOJ has filed a brief on behalf of John Yoo in Padilla v Yoo. According to Horton, the brief argues that there are only 3 basic routes by which a lawyer at the DOJ can be held accountable for his official actions. All three routes depend, in essence, on the authority of the DOJ itself, which means that the DOJ is crimainally liable if and only if it finds itself to be so. Needless to say, this is an exceedingly low standard given any institution's inclination to protect itself.

Horton concludes:

The Holder Justice Department’s brief can only be squared with prior DOJ arguments this way: foreign lawyers in foreign Justice Departments have no immunity and can be held accountable, but lawyers who work for us have absolute immunity from any meaningful form of accountability. The path to a renewal of the criminal misconduct of the Bush years is being prepared right now. And Obama Justice Department lawyers are doing the work.

Convictions and dismissals

2009-11-04T13:50:00.001-05:00

Today we learned that Italy has convicted 23 Americans (in absentia) in association with their role in rendering a Muslim cleric from the streets of Milan. This is a pyrrhic victory of sorts, since the fugitive Americans will not in all likelihood spend a minute in jail. This is in large measure due to the U.S. government's incessant political pressure, grounded on the belief that it can do whatever it wants in the name of combatting terrorism. This belief reared its ugly head yesterday when the Second Court of Appeals threw out a case brought on by another torture victim of American rendition policy, Maher Arar. His case is familiar to anyone who follows these things. A Canadian citizen, picked up at JFK on a tip from te Canadian government, and inexplicably (unjustifiably) rendered to Syria where he was summarily tortured for about a year. The trip to Syria is not inexplicable if one recognizes the America's unaccountable desire to do whatever is 'necessary' to gather intelligence information. As it turns out, as it often does in these types of cases, the initial tip was ungrounded, and Arar had nothing to do with anything.

Now, evidently, the majority believed that to do otherwise than to dismiss the case would be an egregious form of judicial activism, since Congress has not explicitly penned law prohibiting this particular activity. It's not clear to me on what grounds they say this, since there exists any number of statutes under which a prosecutor could bring the culprits to justice. After all, isn't conspiracy to torutre a crime, on the books. The majority must be asking for something else, namely, the green light by the Exectuve to prosecute its own members. Needless to say, we're still waiting for that. But on the ever useful charge of judicial activism, we can submit, on the contrary, that it is the grossest form of judicial activism to give, as this dismissmal does, carte blanche to a government gone wild. No one but the American government feels the need to dispute the facts of the Arar case, his unquestioned innocence, not even the Canadian government, which has already admitted culpability and settled with Arar. Yet, we continue to our ostrich policies from the highest levels of government down to the citizen on the street who 'just wants the government to protect him'. Well, perhaps Arar believed the same thing, that is, until he lived through the hell that comes from allowing flawed people to possess unchecked and unaccountable power. Do we all have to live through the same before we recognize the flaw here? Is our imagination and historical sense that weak?

Before we raise our hands in salute of the Italians over the Americans, we should note that, in the Italian judgment today, 3 Italians were acquitted on the grounds that their conviction would divulge state secrets. So, there we go again.

The top ten things you didn't know about Iran

2009-10-03T13:00:00.001-04:00

I found Juan Cole's list helpful. Take a look.

Why our media is lame

2009-08-31T14:42:00.004-04:00

Paul Krugman runs down the reasons why media coverage of health care reform is lame. Basically, the reasons can be extended indefinitely to the coverage of any significant policy issue.

We've taken a shot at explaining this here. In the end, the idea is that many journalists are either too dumb or too cowardly to handle these issues. But, we shouldn't forget either that sometimes journalism is an unreasonably dangerous enterprise, and that our culture of violence (e.g. sending death threats to journalists who write intelligently about health care) plays a significant but often invisible role as well.

Newly released OLC memos

2009-08-28T14:33:00.004-04:00

Jack Balkin offers us a quick summary of various parts (new memos here). Nothing new, but every time I look at yet another one of these memos, I just can't believe what I'm seeing. What is the meaning of the rule of law if can be subverted so easily and its violators left free to roam and defended?.

The Responsibility to Protect

2009-08-09T14:34:00.002-04:00

Noam Chomsky's take on the responsibility to protect. As always with Chomsky, an informative and interesting read. We've taken on this topic here and here.

The Collapse of the Prison System

2009-08-05T18:25:00.005-04:00

Yesterday the right-wing philosophy that has ruled the US prison system for the last decades received a long deserved blow. A panel of federal judges issued a mandate to reduce the total number of inmates in the state of California in more than 25% in a period of two years. Notwithstanding future appeals, the decision is the culmination of a long process of deterioration of the prison system in California, once the envy of other US states and nations. Currently the designed capacity of the system is roughly doubled and inmates are accommodated in hallways in makeshift beds.

The consequences of this overpopulation are both cruel and unusual. Inmates spend most of the time locked up as the only way to avoid fights and riots. Contagious diseases spread rapidly among inmates and estimates speak of one death per week due to lack of medical assistance. Human Rights advocates have been warning about severe constitutional violations for years but their cries have faded amid the tough-on-criminals mentality dominating the country. Finally, after years of struggle, the federal justice has come through and ordered an end to these abominations based on the Cruel and Unusual Punishment clause of the 8th Amendment.

This is the first official acknowledgement of the insurmountable failure of the philosophy that has dominated the country since the 80s. It might mark a turning point in the history of the prison system. But dissident voices have been around for a while and the debate has been shaping quietly in the background. The collapse of the system has been documented in almost every front. The rates of incarceration have skyrocketed in the last three decades and starting a few years ago one in every 100 adults in the US is in jail. Moreover, it is wholly unclear whether these costs have produced benefits, for the US leads the developed world in homicide rates.

On the other side of the Atlantic Ocean, in Holland, the prison system has also been the subject of intense debate. However, the problem there is one the US wishes it had. The Dutch government has been trying to close 8 prisons for lack of inmates while the Right has tried to persuade the public of the need to put more people in jail. The cost of the initiative will be 1,200 layoffs. Even so, the Right has been unable to stop it. This strikes me as a bit bizarre. On this side of the Atlantic it is always the politicians who are trying to temper down the thirst for blood in the public, not the other way around.

Holland’s problem is envied by others. But things did not always go well for the Dutch prison system. Only a decade ago Holland had followed the American trail and was beset by an overpopulation problem. But they reacted in time and avoided embarrassment. Since then they have increased paroles, implemented electronic surveillance, worked on rehabilitation and increased community service. Plus, undeniably Holland’s eccentric soft-drug policies have had some impact—though not enough to fully account for the phenomenon. In striking contrast with the US, in Holland one of every 1,000 people is in jail.

On a philosophical vein, it is particularly interesting to speculate about the roots of the American mentality with regard to incarceration. Tough-on-criminals policies have been championed by Right-wing groups, usually affiliated with religious views, and echoed by the masses (e.g. 80% of Americans support the death penalty). The explanation of this mentality in terms of the notion of free will is thus natural.

It is plain that religious doctrines usually rely on a substantial notion of free will. But aside from the metaphysical debate, the notion performs double duty in shaping the tough-on-criminals mentality. On the one hand, because individuals are perceived as essentially free, religious doctrines place the whole responsibility for their action on them. There is no need to look at environmental conditions to explain crime: it is simply the criminal’s choice. On the other hand, this has been abetted by the deterrent effect that is expected to ensue from this mentality. Whether or not offenders are fully responsible for their actions, if we hold them fully responsible by having no consideration with them, people in a position to commit crime will have to weigh their chances against this assumption which should deter them from taking criminal action.

But the truth is (as everybody knows except most Americans) that criminals don’t have free will. And this is not a metaphysical statement: criminals are determined by their upbringing, opportunities and even chance. Without a doubt social conditions are causally responsible for the production of crime (as for the production of science, literature, etc). To the extent society causally participates in the production of these evils, it shares the moral responsibility with the wrongdoer for her wrongdoings.

One can ignore reality as much as one wants—even with the hope that ignoring it will magically end crime. But reality is stubborn and ignores those who ignore it. By imprisoning all offenders the US has incapacitated them. But at the same time it has deprived them of the main source of rehabilitation: society. Criminals are not free to choose crime but neither are they free to choose rehabilitation. For too long has the US seen prisons not as functional parts of society but as ostracization facilities. The strategy of ignoring the conditions that produce crime has yielded the expected results: overcrowded prisons and no significant decline in crime. It is time for a change.

Justification for facilitating torture

2009-07-29T22:27:00.006-04:00

The case of the APA and its members who participated in coercive interrogations.

When I read about psychologists who participated in the Bush administration approved interrogation/torture sessions, I recoil in contempt. The contempt is heightened when I read that, since 2002, the American Psychological Association (APA) has effectively condoned and offered justifications for its members’ participation. Is my attitude justified?

Some say no. They do so on the basis of a counterfactual claim: interrogations would have been worse for detainees had it not been for psychologists’ participation. This argument uses the following standard for ethical action: doing something is justified if doing it leads to better outcomes than not doing it. Applied to our psychologists’ participation in torturous interrogation, we can respond, Really? Their participation led to torture and the claim is that without them matters would have been worse. Really, worse than being tortured?

Even if we grant that there are degrees of torture and that psychologists’ participation mitigated the degree of torture, the counterfactual claim is specious because it uses the wrong baseline for comparison. If I torture you less than someone else would have, then that results in a better state of affairs; but, it obviously can’t be used to justify what I am doing. As an aside, compare a similarly specious argument often made for paying the minimum conceivable wage to third-world workers: if I didn’t bring my business over there, they would be unemployed; therefore, since $1/day is better than the nothing they would have gotten, that’s what I’m justified in paying.

At the very least, then, a comparative claim used to justify action must use as a baseline not how things are or would have been without the action, but rather how things would have been if I had acted in all the ways I could have acted. In the case of the torturer, assuming she can stop torturing, that would represent the best outcome (in the case of the entrepreneur, a better outcome would be to pay the just amount which is certainly more than $1/day), and what she does in fact do can be justified only if it is better than that. So, a better standard of justification would be this: my action is justified if doing it is better than anything else that I could have done. I’m not saying that this is the correct standard, but we can use it for our present purposes of evaluating justification for facilitating torture.

We can begin by looking at a brief history of the APA’s ethics code that is relevant to conflict between law and professional ethics. We can note that prior to 2001, the APA’s ethics policy suggested that conflicts be ‘responsibly resolved’ by the psychologist. This open-endedness left it open to the psychologist to follow her conscience in potentially violating positive law. Post 9/11, the policy was revised to read that obeying the law, irrespective of its content, would be sufficient for its members ethical standing. [For a more detailed discussion of the APA’s ethical standards, see Kenneth S. Pope’s, Ph.D., ABPP and Thomas G. Gutheil’s, M.D. article, here.]

Let’s now think of the culpability of individual psychologists and their role in torturous interrogations. If their participation is to be justified, they must claim that their participation leads to better outcomes than anything else they could have done. Is this plausible? The director of the APA’s ethics office, Stephen Behnke, argues for the presence of psychologists as follows:

APA frames a role that psychologists have unique training to fill: the role of observing interrogations in order to guard against ‘behavioral drift’ on the part of interrogators. Behavioral drift, which may arise in high stress situations where there is insufficient ethical guidance or oversight, involves a deviation from professionally and ethically acceptable behavior and so may lead to coercive interrogation techniques. Psychologists, as experts in human behavior, are trained to observe and intervene to prevent behavioral drift.

On this view, the chief benefit of psychologists’ participation lies in their ethical and professional competencies, which competencies can be used to thwart coercion by morally drifting interrogators. I don’t know why Behnke believes psychologists possess particular ethical dispositions and/or competencies, but even if they were uniquely trained in that regard, by the APA’s own ethical standards discussed above, if CIA interrogators ‘legally’ coerced information, no psychologist would have authority to intervene into or report such coercion. The official policy belies the individual justification. Now, if even if we are to imagine a heroic psychologist who bucked the law, this doesn’t absolve the other psychologists who not only ‘monitored’ interrogations but devised, shaped, and directed an entire interrogation regime. This describes the roles of Bruce Jessen and Col. Morgan Banks who are both believed to have deployed their expertise in evading interrogation to develop the C.I.A’s and military’s S.E.R.E interrogation program (survival, evasion, resistance and escape). Can we say of such a psychologist that his participation is better than anything else he could have done?

Suppose neither had participated at all, as surely was open to them, then an entire regimen of coercive interrogations would have been eliminated from existence. And surely that outweighs any conceivable benefit, if such there be, of their actual participation. Behnke might retort that the way the two devised their interrogation regime led to safer methods than would have been available without them. Even if this is true (I’m highly skeptical), it uses the specious comparative benchmark discussed above. Given that their methodology has been established to be torturous, then the correct standard of comparison is not whether without them the CIA would have invented more torturous methods, but rather whether they could have devised effective interrogation methods that shunned any hint of coercion. By the many accounts of experienced FBI interrogators, the most effective method does not involve coercion, and we can surmise that both Jessen and Banks could have built a program around that truth.

Let’s leave aside the case of individuals and turn to the topic of institutional responsibility for facilitating torture. We can note firstly that, in the context of political policy and as compared to individuals, institutions have a far broader range of counterfactual actions available to them. This is partially because they are responsible for many of the rules under which individuals must act and partially because of the great causal powers institutions have in the modern world. This is an often neglected fact and, in my opinion, it implicates institutions in a broader range of responsibilities than is normally acknowledged. We need to keep this in mind when we assess the APA’s actions and omissions.

We know that around 2006 after reporting made clear the coercive nature of U.S. interrogations, the Amercian Medical Association and the American Psychiatric Association both issued prohibitions on its members from even being present at interrogations. Against this background, how should we assess the APA’s insistence on the benefits of psychologists’ participation. Given the existing ban by the AMA and the Am Psychiatric Assoc., the APA arguably could have put a stop to the whole sordid mess by following suit. Here’s why: as mentioned above, it is continually argued, both by the heads of the APA and military brass, that participation by psychologists is essential to keeping interrogations safe. Their absence, then, would entail unsafe interrogations. Therefore, at the very least, the APA’s prohibiting member participation would have put considerable political pressure on the administration to discontinue these, by their own lights, unsafe interrogations. So, this is a conceivable, even probable, counterfactual outcome, one which we can use to assess the goodness of the actual outcome. What was the actual outcome? Detainee deaths and psychologically broken human beings. By the standard set out above, the APA’s actions were unjustified, and it should be found culpable for torture.

The issue of individual and institutional culpability for the torture that took place under U.S. control is a complex problem. Nevertheless, the only argument I’ve seen defending the participation by APA members is specious, and the blame goes to the individual psychologists who participated in coercive interrogations but also, and perhaps to an even greater degree, the professional association which endorsed such participation.

One thought too many

2009-07-25T03:19:00.003-04:00

We've all lived through Dick Cheney's outrageousness. Alongside his grim reaper Addington and legal waterboy John Yoo, he's perpetrated many grievances against America's reputation and standing in the world--not to mention against human beings.

But this one makes me angry. The New York Times reports that in 2002 Cheney and his cohorts tried to persuade Bush that military action in an American city was justified. Evidently, sleeper cells were on his mind and nothing short of military action could appease him. In contrast to his almost too cool public appearances, this grim episode proves how absolutely unhinged Cheney was during this time period. To be sure, in 2002 danger was in the air, and we wanted our public officials to be acutely sensitive to the very real possibility that more strikes on domestic soil was immanent. Nevertheless, to contemplate something so drastic in a case where more or less nothing was at stake, demonstrates the underlying paranoia which had seized his mind. Of course, the military strike never took place, evidently due to Bush's cooler, more reasonable mind (sic!). But the fact that it was even seriously deliberated evinces what Bernard Williams once quipped as 'one thought too many'.

Honduras' Dilemma: Does pacifism still make sense?

2009-07-21T21:43:00.004-04:00

When is the use of force justifiable? Is violence ever called for in a political conflict? These are questions the international community has been putting off for days in relation to Honduras. It just looks bad for an international actor to appear before the world supporting violence in a country devastated by poverty. On the contrary, pacifism would seem to always represent reason and temperance. But this can’t be true. For human beings act based on expectations about how their fellows will behave and if pacifism were a reliable expectation then others would unjustly capitalize on it. Some of this seems to be going on in Honduras.

The international community has had much patience with Micheletti’s de facto government. First, the OAS unanimously condemns the coup and demands the restoration of the constitutional order. Next, Honduras is suspended from the organization no longer qualifying for credits from the IADB and the World Bank. Then President Oscar Arias of Costa Rica (a Nobel Peace laureate) convinces the de facto government to negotiate with deposed president Zelaya in order to bridge the gap. Finally, after Arias’ effort proves fruitless, Arias and Isulza manage to cool off Zelaya and convince the parts to engage in a second round of negotiations in Costa Rica. Zelaya was ready to go back to Honduras and call for a popular revolt, bloodshed to follow.

At this point it seems unlikely that Arias’ negotiations will restore Zelaya to office. But anything short of that would create a horrible precedent. Powerful political groups in Latin American countries would learn that they can navigate the international pressure—after all, Honduras could, being the 3rd poorest country in the region. This would be a hotbed for political instability in a continent with a terrible record in this respect.

But unless the people of Honduras kicks Micheletti out of office by force, it seems that the de facto government is planning to get away with their goal (i.e. holding on until the end of the year where elections are scheduled). It seems likely at this point that nothing Arias or Insulza does is going to persuade them of restoring Zelaya to the presidency. This seems to be non-negotiable for Micheletti. On the other hand, the international community can not possible accept anything short of Zelaya's resitution. Hence, we have stalemate, and one that favors the de facto government.

Zelaya’s insistence on peace plays in Micheletti’s favor for their strategy seems to be holding on to power while letting time go by. It was worth trying but dialogue is wearing out and, what’s worse, the de facto government is cynically benefitting form this status quo. Shortly there will be no time to loose and the people of Honduras will have to make a choice. It’ll be either violence or Micheletti.

In praise of courage and in contempt of cowardice

2009-07-15T14:45:00.014-04:00

No one can reasonably expect an individual to risk their lives to track down the truth. Even if courage is a virtue and its expression an essential part of being human, the degree of courage manifested in activists and journalists who endanger themselves to reveal a truth lies beyond duty.

Although we cannot reasonably demand it, such courage always draws the admiration and praise of those who witness it.

The New York Times reported today on an exemplary case, that of human rights activist, Natalya Estemirova. It is a chilling story implicating the Chechen president and Estemerova, his implacable gadfly. Estemerova had made a habit of reporting on human rights abuses in Chechnya, and in the meanwhile angering the powers that be to the extent that they openly threatened her. Estemerova had won the prize Anna Politkovskaya, named after another journalist who made a habit of courageously questioning political authority. Here's a link to an article she wrote shortly prior to her assassination. The article indicates her consciousness that her life would be short. And yet there's a sense of calmness, as if she were writing about her own impending death from the perspective of a journalist covering her own life. She writes that the authorities want her to pretend that certain things she saw did not happen, and responds somewhat curiously, "How can I forget when it did happen?" This is curious only because this sort of forgetfulness is constantly on display in others, and I'll turn to examples of that shortly.

But the incapacity to forget, in particular the inability to will oneself to forget the truth, is a kind of virtue, I would say an expression of the highest virtue: to be unable to do the bad. Estemirova possessed this character trait as well. It was said that she couldn't quit her work, that she was burning up inside over it. This is true even though she faced the realization that her death would mean that her 15 year old daughter would be left alone.

We can turn now to the capacity to forget the truth, and unfortunately it is on full display in certain American journalists who not only are able to forget, they urge others to forget as well. Glenn Greenwald has been at the forefront of highlighting the activities of these journalists and his most recent exemplar is Chuck Todd who 'reports' on the White House for NBC. You see, Todd stands against investigations into the Bush administration's war crimes, their role in the abduction, incarceration, torture and deaths of detainees. To be fair, he has a reason for his stand: such investigations would distract Obama from what truly important, namely, pushing through health care reform and the economy.

Aside from the curiosity of hearing a self-described journalist criticize and attempt to undermine the search to find the truth, we are left with a sense that Todd simply does not, and most likely cannot, recognize the role of the journalist is not to concoct reasons that obscure government malfeasence. Todd is the anti-Estemirova. While she can't help but search out the truth, he cannot will himself to seek it. In the place of the search for truth, Todd portrays himself as a political realist, as an oracle for which investigations will and will not work. Instead of being an investigator, he is a prognosticator. Since he predicts that torture investigations will become, as he says, a 'political football', he deems them a waste of time and detrimental to America's reputation (!?).

But even if this were all true, what does it have to do with whether a journalist should spend her time tenaciously getting to the bottom of the matter? Todd conveniently, and by all indications sincerely, believes it is not reasonable to demand that a journalist risk anything, for prediction is a risk-free game. I started by saying that it is not reasonable to demand that anyone risk their lives for truth, but it surely is a expression of cowardice to be a risk-free journalist. If we praise Estemirova, Politskovskaya and the like, we must contemn the likes of Todd, for the latter are worse than useless: they obstruct the good works of the former.

Shock and Shame in NY

2009-07-10T13:58:00.012-04:00

After the month-long stalemate in the NY State Senate caused by defecting senator Pedro Espada, the distinguished New York congressmen have finally found a way out that tops the embarrassment of their constituency. They have decided to offer Espada (yes, the betrayer!!!) the majority leadership in order to draw him back from the Republican caucus. Yes, believe it. This is not a Buñuel movie or a crooks novel, it is our honorable New York State Senate right now. Because the majority leadership is the highest senate position, short of their wives it is not clear what Republicans can offer Espada to woo him back.

Lessons for Honduras

2009-07-06T19:50:00.009-04:00

As democratically elected president Manuel Zelaya was flying back to Honduras this morning thousands marched to the airport to welcome him. But the warm encounter never took place. Zelaya’s plane was not allowed to land by army vehicles occupying the runaway and the crowd was dispersed by security forces loyal to the de facto authorities of Honduras. The reported result is a 10-year old dead and many injured while the unlawful regime holds on to power for another day.

This is the 3rd or 4th attempt to restore the rule of law in Honduras by peaceful means. A few days ago, Secretary General of OAS, José Miguel Insulza, visited the country in a last-ditch attempt to reconcile positions before expelling Honduras from the organization. Insulza made a career in Chilean politics for his tough political intelligence in handling difficult ideological conflicts (e.g. Isulza was Chile’s minister of foreign affairs when Pinochet was arrested in London at Garzon’s request). And in this case he was able to quickly work out a unanimous repudiation of Honduras’ coup by all American countries—a remarkable achievement if one dwells on Zelaya’s affiliation with Hugo Chávez. However, the de facto authorities of Honduras have proved recalcitrant.

Though the international response has been dramatically different, the internal circumstances that have led to this coup are reminiscent of Venezuela’s 2002 coup or, going further back, of Chile’s 1973 coup. In all three cases there was a democratically elected president (cf. Chavez 1998, Allende 1970) pushing significant reforms to the constitution. The reforms are either targeted at favoring the lower classes or the government quite explicitly vows to do so and the reforms aim at perpetuating the regime. The higher classes are terrified that they are going to loose their privileges, be them legitimate or not.

The result of this conjunction of circumstances is invariably an extreme polarization of the society at hand and eventually social turmoil. In Chile it led to Pinochet’s 17-year dictatorship marked by atrocious violations of human rights. In 2002 the international conditions were significantly different and Carmona’s coup in Venezuela did not survive a week. The international conditions are even less favorable to the de facto government in Honduras but it remains to be seen if Zelaya’s popular support has enough strength to bring him back to office, as the social movement in Venezuela did with Chavez in 2002.

The case of Honduras is also important in another respect: it is the first time since the coup in Venezuela in 2002 that a Latin American country takes an unconstitutional line to resolve its own conflicts. After decades of political turmoil, it seemed that Latin America had finally found a lasting constitutional equilibrium. The coup in Honduras brings out fears of a dark past.

But it also invites reflection on the limits of democracy and its mechanisms of conflict resolution. It seems hard to contest that Zelaya’s government was democratic. However, it was partial to the poor in the social struggle between classes. The economic and political elites felt threatened and feared what they regarded as an illegitimate rewriting of the social contract. But they were outnumbered and the government would eventually be able to achieve this goal. It is understandable (though not for that reason justifiable) that the elites were going to wave their power against what they regarded as unjust and unlawful.

Because the cases of Chile, Venezuela and Honduras led to the same outcome irrespective of the diverse international conditions (cf. the coup in Chile was supported by the US) one could infer that a fracture of these dimensions at the heart of a society almost invariably leads to an unconstitutional outcome. And this is unsurprising if one looks at the problem through the lens of social contract theories. After all, cooperation is the glue that keeps society together. When different factions begin looking at each other suspiciously, not as teammates working for the well-being of all but as ruthless competitors for the scarce resources, all trust is lost. Scruples and knightliness quickly become obsolete in the game of survival and turmoil ensues.

For their own sake countries need to find social arrangements perceived as fair and beneficial by all. This is an old lesson drawn by many philosophers and political scientists since at least Rousseau. But it remains as valid as ever. Honduras confirms it once more. May Honduras learn the lesson in the light of the unfortunate events of this week.

Washington Post death watch

2009-07-03T11:47:00.002-04:00

Wow. What is going on over at the Washington Post?

Evidently, the once proud newspaper attempted to solicit funds in exchange for access to its news division and editorial staff. The events were supposed to be in the form of self-styled 'salons'. According to the nature of things, the newspaper now vehemently denies any impropriety, citing that it would never compromise its news division's integrity: it was all a misunderstanding, the advertising flyer was not vetted, blah, blah, blah.

Via Politico: (the text of the solicitation)

Offered at $25,000 per sponsor, per Salon. Maximum of two sponsors per Salon. Underwriters’ CEO or Executive Director participates in the discussion. Underwriters appreciatively acknowledged in printed invitations and at the dinner. Annual series sponsorship of 11 Salons offered at $250,000 … Hosts and Discussion Leaders ... Health-care reporting and editorial staff members of The Washington Post ... An exclusive opportunity to participate in the health-care reform debate among the select few who will actually get it done. ... A Washington Post Salon ... July 21, 2009 6:30 p.m. ...

"Washington Post Salons are extensions of The Washington Post brand of journalistic inquiry into the issues, a unique opportunity for stakeholders to hear and be heard," the flier says. "At the core is a critical topic of our day. Dinner and a volley of ideas unfold in an evening of intelligent, news-driven and off-the-record conversation. ... By bringing together those powerful few in business and policy-making who are forwarding, legislating and reporting on the issues, Washington Post Salons give life to the debate. Be at this nexus of business and policy with your underwriting of Washington Post Salons.

Embarrassing at best. At worst, another nail in the coffin of the Washington Post. After the Dan Froomkin debacle, the powers that be are doing all they can to chase away their audience.

Chile and human rights

2009-06-30T00:43:00.005-04:00

Chile becomes the final country in S. America to ratify the Rome Statute. Among other things, this brings Chile in line with the international community on human rights norms involving genocide and crimes against humanity.

Michael Jackson's Uncensored Obituary

2009-06-26T18:53:00.004-04:00

Michael Jackson’s sudden death has drawn the world’s attention all at once onto him likely for the last time. Michael Jackson was unquestionably one of the most famous and admired music icons of the modern world, sharing that pantheon only with a few (e.g. Elvis Presley, The Beatles or Madonna, come to mind). He was a prodigy: a massive-media, pop-culture version of Mozart, only deeply admired worldwide by the rich and the poor alike. And while I understand the fans’ admiration, I myself never was one of his followers. Perhaps because of the objectivity this might confer me, throughout the course of Michael Jackson’s life I couldn’t help the feeling of pity for him. For while Michael Jackson is the prototype of the music idol, whom all the kids and teenagers (and sometimes even a little older ones) imitate and see as the role model, for this very reason he also is an example of the worst abominations of our times. Because he is the pinnacle of modern fame, he also exemplifies in the worst form possible how public attention can corrode a human being.

Michael Jackson was a great pop musician and dancer but he was also a victim of his time. Physically and psychologically Michael Jackson was a freak. He was an eternal child trapped in childish dreams completely unable to understand a world that worshipped him. Now everybody remembers him but only a few days ago he was alone, locked in his Neverland world. In reality, this was not just a bad ending, it was also a bad beginning. Michael Jackson was alone for most of his life incapable of leading a normal life behind the scenes. But this was not the fault of his family and friends. Nor was it his own fault—how could it be, if he never had a choice? Again, Michael Jackson is a product of his times, the result of the unconditional love and admiration of millions who followed him since he was a boy. His case should give us food for thought regarding the values of modern society and the relentless aspiration to fame. Goodbye Michael, may you find peace finally.

death of the Washington Post

2009-06-22T14:48:00.003-04:00

I used to read the Washington Post because of its good coverage of Guantanamo and detainee treatment. But I just heard (been tucked away in a technology-free zone) about its firing of Dan Froomkin and well that spells the death of the WaPost for me.

As usual, Glenn Greenwald has some insightful points to make on a topic he writes about quite often. In short: Froomkin was too much of a real journalist for the Washington Post's editorial board to handle, because according to it, the function of journalism is to cater to the prevailing political masters.

Yoo civil lawsuit allowed to proceed

2009-06-17T05:51:00.006-04:00

See here. Also, see the Washington Post's editorial criticizing the decision. Its argument is summed up by the following:

Moreover, Mr. Yoo provided legal opinions on what he believed the law allowed the executive to do, but he did not make the final policy decisions. Allowing Mr. Padilla's case to proceed could have a chilling effect on the ability of government lawyers to give candid, good-faith advice for fear of being held personally liable.

I've addressed the distinction between advice and policy here. In Yoo's case, that distinction doesn't apply in the usual way, and the Washington Post's editorial is, once again, an utter failure.

New York, 3rd World State

2009-06-12T15:40:00.008-04:00

I have vast experience in 3rd World politics and can testify that the spectacle we have witnessed in the New York State Senate this week easily matches the worst episodes of corruption I have known about in Latin America or Africa. Two Democratic senators were apparently "persuaded" by a tycoon (who is not even part of the senate or any political party but who recently financed some important democratic state campaigns) to defect from the Democratic party allowing Republicans to seize control of the closely divided chamber.

This billionaire patron was indignant at the Democratic majority because of their plan to raise taxes on the rich to compensate the spiraling state deficit. Unable to deter them from going ahead with their plan, he opted for the healthy alternative of inviting a couple of senators with God knows what incentives to move to the opposite party.

In case this is not fishy enough, one of the defecting senators had been drawn to the Democratic side not long ago with promises of power and protection from the countless charges of corruption that he has faced lately. The other defecting senator was recently indicted with charges of having stabbed his companion.

You gotta wonder what the heck is going on in New York. The current governor, David Paterson, replaced the elected governor, Eliot Spitzer, who resigned last year after being linked to a prostitution ring. Like in the worst crooks movies, New York politics seems to be dominated by an underworld of corruption and personal interest. Democrats have taken legal measures against the Republican coup and a judge is set to deliberate on the issue next week. Whatever the outcome of this mess, the situation illustrates the need to clean the sordid political landscape of New York State as soon as possible.

Boumediene 2: Bush 0

2009-06-08T20:07:00.008-04:00

This is what Lakhdar Boumediene's homemade t-shirt reads, as related in his recent interview with ABC News. It refers to his two victories over the morally bankrupt Bush administration who willfully and needlessly kept him at Guantanamo for 7 years. The first victory was SCOTUS's judgment in Boumediene v. Bush which enabled him to get judicial review. The other was U.S. District Judge Richard J. Leon's decision to free him upon reviewing the 'thin reed' of evidence the administration had against him.

Boumediene makes the following remarkable statement about the duration of his detainment:

"The first month, okay, no problem, the building, the 11 of September, the people, they are scared, but not 7 years. They can know whose innocent, who's not innocent, who's terrorist, who's not terrorist," he said.

"I give you 2 years, no problem, but not 7 years."

It's remarkably generous to offer 2 years of your life for a gross mistake (assuming that it's just that), especially given the credible charge of being tortured whilst incarcerated. But leaving that aside, Boumediene's point should strike a mortal blow to any proponent of executive privilege who wants to assert that the executive is better qualified than any other branch of government to handle matters of war--a standard talking point for the right. After 7 years, the executive could not (or would not) determine Boumediene's innocence. On the other hand, it took Judge Leon only 5 months after Boumediene v Bush to sift through all the evidence and render his judgment (PDF file). In which institution would you place more trust?

Berlusconi's Innocent Villa

2009-06-05T15:45:00.004-04:00

After Veronica Lario, Belusconi's wife, filed for divorced accusing him of shameless sexual corruption, Italian paparazzi caught the Italian president enjoying an "innocent" afternoon (as he himself referred to the pictures) with some of his friends (here).

On American Ignorance

2009-05-30T23:20:00.001-04:00

An interesting article on a topic we've visited before.

The Morality of Obama's Guantanamo Plan

2009-05-26T13:35:00.003-04:00

No doubt Obama’s plan to close the Guantanamo Base prison is a step forward in fighting the threat of terrorism. Dick Cheney resents this fact for it entails that his own decisions were steps backward. But at this point who cares what Cheney says other than his reactionary cronies? After all, Cheney’s arguments do not pass a minimum test of cogency and vision. Nonetheless Obama’s plan brings to the surface a fundamental question that had been overshadowed by the numerous obscenities of the Bush administration. This is the question of preemptive incarceration.

Obama’s plan consists in transferring Guantanamo detainees to maximum-security prisons within the US borders but it does not include a discernible answer for the legal abominations these cases represent. During the presidential campaign, McCain warned Obama of the intricacies the new president was going to find once he had access to classified information on the Guantanamo detainees. And for all his gaffes, the facts seem to confirm McCain’s forecast. For what was once determination in Obama to close Guantanamo has now turned into feeble compromise. Barring an unexpected change of course, it seems that Obama’s plan is only symbolic vindication: Guantanamo detainees will be transferred to American soil but kept in the legal limbo they’ve dwelled for years.

God knows what information Obama and his legal advisors have come across in revising the Guantanamo cases. But I think it unlikely that anything short of imminent danger for the country would have persuaded Obama of the need to continue with this legal farce. So let’s suppose for the sake of the argument that Guantanamo detainees represent an imminent threat to the US. If they had not yet committed any punitive action, is it lawful and/or moral to restrain them?

Here we find the two traditional frameworks in philosophy of punishment giving opposite advice. According to the Utilitarian framework, punishment is morally justified by its beneficial consequences. Utilitarians typically mention the incapacitation of the offender as among these consequences. Thus it would appear permissible, according to this framework, to incarcerate an individual on the sole grounds that he or she represents a threat for the US.

The alternative to the Utilitarian framework is Retrubitivism. Roughly, Retributivism is the view that punishment is justified by an abstract balance representing our sense of justice. When somebody breaks the law he or she has upset that balance and punishment is required in order to restore it. It straightforwardly follows from this view that we are justified in punishing only those who have broken the law. Therefore, restraining Guantanamo detainees would be wholly immoral even if they are indeed a threat to the country and we know it, for they have yet to act on their impure intentions.

It would be presumptuous of me to attempt to adjudicate between these competing frameworks. Generations of philosophers have passed unable to do so. However, it is fair to say that even many Utilitarians, while rejecting the whole Retributive package, accept the idea that only the guilty should be punished. Guantanamo detainees cannot be guilty of anything yet as they have been denied the nowadays luxury of a due process. And having bad intentions is not recognized as a crime by any legal code. As a consequence, it seems really hard to reconcile Obama’s Guantanamo plan with any accepted morality of punishment.

Politicians are not only beholden to such abstractions as justice but also to their country. It seems therefore unlikely that Obama (or anybody for that matter) is going to clean this mess. No doubt politicians in positions of power have a responsibility to protect their country. But more importantly, the American electorate is extremely sensitive to the issue. Republicans have traditionally exploited the issue of national security to a point of absurdity. And Cheney as well as the Republican minority in Congress have made it clear that they will continue to pound it. This leaves the Obama administration with no margin to correct the abominations created by Republicans themselves.

As Nancy Pelosi has lately insisted, there is an important distinction to be drawn between those who caused this state of affairs and those who have failed to straighten it. There can be no doubt that Republicans fall in the former category and thus carry most of the responsibility for jeopardizing the Constitution of the US. However, they also carry some of the responsibility for politicizing the problem now in the hands of the new administration blocking any conceivable solution for it. As Eugene Robinson suggests, in history books hundreds of years from now Republicans will have to be charged with the decline of the US.

Advice, policy and action

2009-05-19T15:09:00.003-04:00

One major line of defense John Yoo offers for his role in torture relies on the distinction between advice and policy (authority to prescribe action). (See the prepared statement he made before his testimony to the House Judiciary Committee back in 2008).

The thought is that setting policy, but not giving advice, is related to action in a responsibility determining way. This is because policy not only endorses an action (as right/wrong, viable/unviable, legal/illegal), it motivates by being the reason for the action. In short, policy can be a constitutive part of an action which depends on it; it is the reason which explains the action. This connection explains why we tend to believe that if an action like torturing someone is wrong, then the authoritative policy which directly calls for it is also wrong.

On the face of it, advice is different. In an advisory role, the content of the advice is not taken to have motivational force. Additionally, I may not be advising you to do anything in particular but rather just laying out what I take to be your options. This is what John Yoo claims of his legal advice: it merely laid out an interpretation of legal options, and it was neither his intent nor within his authority to prescribe which options, if any, are to be taken. Yoo claims it follows that he cannot be held liable for the actions of those who were directed by policy to act in accordance with such advice. This is because, we can say, a ‘responsibility’ gap exists between advice and action, the gap filled by an independent judgment as to whether to follow the advice. So, if someone must be held accountable for the torture, it should be those who formulated the policy and carried it out. They have a direct responsibility bearing relationship to the vicious act.

Let’s examine the claim about advice. When someone asks for practical advice, it implies that he has not made up his mind on what to do. Typically, upon being offered a piece of practical advice, the advisee deliberates, takes the advice into consideration among all the other known considerations, and arrives at a decision about what to do. The process of deliberation arguably makes the advisee solely responsible for the ultimate decision. Plausibly, this shields the advisor from responsibility.

However, the conclusions are different when the advisor has practical authority over his advisee. Usually we distinguish between contexts of advice and authority, because advice is not often taken to be authoritative, but this is not a conceptual point, but rather just an expression of how we talk. When someone has practical authority over another, his pronouncements/directives/assertions possess preemptory status among the other reasons the advisee may have. That is, whatever other reasons the advisee may have, they are overruled (and are taken to be overruled) by the authority. In this context, when an advisor makes a pronouncement, he understands it to constrain and/or function as a sufficient reason for action.

What was the context in which Yoo wrote the OLC memo? As Yoo himself notes in his testimony before the Committee, his advice was requested in a very particular context: whether the recently (at the time) captured Abu Zubaydah could be subjected to enhanced interrogation techniques, given that such techniques, so Yoo claimed, would be extremely helpful to and desired by the executive.

But the relationship between executive and the OLC is not one of desire satisfaction, it is the latter’s job to constrain the actions of the former. This is confirmed by the particular institutional role the OLC occupies within the executive branch. The following statement from the OLC ‘best practices’ statement is relevant:

“Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch” (emphasis added).

That is, should there be any dispute on how to understand (and hence how to obey) a law, OLC memos are preemptory. This applies to everyone in the executive branch, including the President.

This undermines John Yoo’s basic defense. Although his advice did not take the form of policy, it went beyond the typical function of advice to supply mere considerations for deliberation. Due to the institutional authority granted to him, his advice took on an imperative like form.

Given his knowledge of the advisee’s motivations (we already know of the ‘principals meetings’ during which this whole cabal got together to discuss strategies to implement torture), Yoo’s affirming advice must be recognized to be motivational—and hence a part of the advisee’s decision to formulate the torture policy. This is what makes him culpable for his advice.