Remembering

Now that Scott McClellan (of all people!) has raised the specter of our national shame, we should remember the details of what actually happened (for those with fuzzy memories, like me) during the run up to the Iraq War.

The reporters at McClatchy (which bought up Knight-Ridder) have offered us a nice timeline:

Here's what happened, based entirely on our own reporting and publicly available documents:

* The Bush administration was gunning for Iraq within days of the 9/11 attacks, dispatching a former CIA director, on a flight authorized by Deputy Defense Secretary Paul Wolfowitz, to find evidence for a bizarre theory that Saddam Hussein was responsible for the first World Trade Center attack in 1993. (Note: See also Richard Clarke and former Treasury Secretary Paul O'Neill on this point).

* Bush decided by February 2002, at the latest, that he was going to remove Saddam by hook or by crook. (Yes, we reported that at the time).

* White House officials, led by Dick Cheney, began making the case for war in August 2002, in speeches and reports that not only were wrong, but also went well beyond what the available intelligence said at that time, and contained outright fantasies and falsehoods. Indeed, some of that material was never vetted with the intelligence agencies before it was peddled to the public.

* Dissenters, or even those who voiced worry about where the policy was going, were ignored, excluded or punished. (Note: See Gen. Eric Shinseki, Paul O'Neill, Joseph Wilson and all of the State Department 's Arab specialists and much of its intelligence bureau).

* The Bush administration didn't even want to produce the National Intelligence Estimate on Iraq's weapons of mass destruction programs that's justly received so much criticism since. The White House thought it was unneeded. It actually was demanded by Congress and slapped together in a matter of weeks before the congressional votes to authorize war on Iraq.

* The October 2002 NIE was flawed, no doubt. But it contained dissents questioning the extent of Saddam's WMD programs, dissents that were buried in the report. Doubts and dissents were then stripped from the publicly released, unclassified version of the NIE.

* The core of the administration's case for war was not just that Saddam was developing WMDs, but also that, unchecked, he might give them to terrorists to attack the United States. Remember smoking guns and mushroom clouds? Inconveniently, the CIA had determined just the opposite: Saddam would attack the United States only if he concluded a U.S. attack on him was unavoidable. He'd give WMD to Islamist terrorists only "as a last chance to exact revenge."

* The Bush administration relied heavily on an Iraqi exile, Ahmed Chalabi, who had been found to be untrustworthy by the State Department and the CIA. Chalabi and his Iraqi National Congress were given millions, and produced "defectors" whose tales of WMD sites and terrorist training were false, fanciful and bogus. But the information was fed directly to senior officials and included in official White House documents.

* The same INC-supplied "intelligence" used in the White House propaganda effort (you got that bit right, Scott) also was fed to dozens of U.S. and foreign news organizations.

* It all culminated in a speech by Secretary of State Colin Powell to the U.N. Security Council in February 2003 making the case against Saddam. Virtually every major allegation Powell made turned out later to be wrong. It would have been even worse had not Powell and his team thrown out even more shaky "intelligence" that Cheney's office repeatedly tried to stuff into the speech.

* The Bush administration tried to link Saddam to al Qaida and, by implication, to the 9/11 attacks. Officials repeatedly pushed the CIA for information on such links, and a seperate intel shop was set up under Defense Under Secretary Douglas Feith to find "proof" of such ties. Neither the CIA nor anyone else ever found anything resembling an operational relationship between Saddam and al Qaida.

* An exhaustive review of Saddam Hussein's regime's own documents, released in March 2008, found no operational relationship between Saddam and al Qaida.

* The Bush administration failed to plan for the rebuilding of postwar Iraq, as we were perhaps the first to report. The White House ignored stacks of intelligence reports, some now available in partially unclassified form, warning before the war about the possibilities for insurgency, ethnic warfare, social chaos and the like.

We could go on, but the rest, as they say, is history.

That's what happened.

-- Warren P. Strobel and Jonathan S. Landay.

This should serve as an antidote to those journalists who now claim that they asked hard questions during this time and that, looking back, they would not have done anything differently (it's nice to have a clear example of the contemptible).

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Torture, Inc.

I'm finally reemerging from under a mountain of blue books and term papers, and I learned that I completely missed the Office of the Inspector General's release of their report last week. It was 4 years in the making and basically details their investigation into interrogation tactics at Gitmo, Afghanistan, and Iraq as reported to them by interviewed FBI agents. The report details a ghoul's list of tactics: short shackling, extreme temperatures, loud music, waterboarding, sleep deprivation, isolation, and bright lights/darkness, not to mention humiliation and threats to harm.

This list contains only those tactics FBI agents personally observed. This is slightly misleading (particularly the frequency of observations); specifically it does not imply that the agents did not have strong reason to believe that harsher tactics were not used (more frequently). This is so, since it was FBI policy, a policy implemented after FBI agents made higher ups aware of abuse, that agents should leave an interrogation scene in which tactics used were contrary to FBI practices. The rule states, “"If a co-interrogator is in compliance with the rules of his or her agency, but is not in compliance with FBI rules, FBI personnel may not participate in the interrogation and must remove themselves from the situation" (p.364). That is, the commencement of torture (by DOD and CIA agents) signals an FBI agent's departure from the scene. There is no reason to doubt that had FBI agents remained on the scene the frequency of the claims of abuse would have been significantly higher.

The report is significant, firstly, because of the source of its information. FBI agents have little reason to fabricate or exaggerate claims. Secondly, it rounds out the picture we have the Bush administration's interrogation policy. These weren't isolated incidents used only on 2 or 3 detainees but rather a systematic approach to information gathering. Thirdly, the FBI was brought in initially for their expertise in interrogation. As the report points out, their view is that rapport building is the most effective means to information gathering, and the complaints FBI agents repeatedly made charged that coercive tactics are ineffective (not to mention unusable or undermining at trial). This highlights two other essential vices of the Bush administration, namely, its contempt for knowledge and expertise and its impatience.

Independent of those concerns is one about our press. I generally keep up with the news, but as I noted above I was swamped last week and completely missed the reportage on the OIG report. But, how is it that a concerned citizen who turns away for but a few days can miss a significant piece of news such as this? I only chanced upon the story due to some link on some blog buried beneath the headlines. Examining our major paper's websites this week would have not given me an inkling of the story at all. Assuming this will not change, the threshold for being an informed citizen is now far above the level most citizens can maintain. This is obviously a problem, particularly when we have an otherwise unaccountable government.

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The responsibility to hold others responsible by MT Nguyen, NYC

Calls for intervention. People dying avoidable deaths. The specter of callous dictators (is there any other kind?) subjugating a helpless citizenry. A delayed, ineffective and disoriented international response.

This general scene can be painted without embellishment to represent any number of events in the past 60 years. The proximal causes of death, just to name a few, can be attributed to the dictators or to a natural disaster or, in the most recent case, to the indifference of dictators to a natural disaster. The basic problem lies in how to handle this indifference (to name the least) to avoidable death. Avoidable deaths implies avoidable by some agency. If one is the agent that could help effect change, some of our moral intuitions suggest that one must.

Take Peter Singer's classic example. A man walks past a shallow pond and sees a child drowning. He could save the child without significant cost to himself (only his clothing would be damaged) . The question is: Is he morally obligated to save the child? Singer asserts that the answer is: obviously, yes. And how could it be otherwise?

That example is well drawn for the political situation Singer grappled with, namely, the famine in Bangladesh in the early 70's. One primary cause of that famine was a cyclone, but that was unavoidable; Singer's piece was written to convince citizens of the developed world to help avoid further deaths. Can a similar conclusion be drawn for the most recent cyclone disaster?

Four weeks ago, Cyclone Nargis hit Myanmar (or Burma, depending upon your political leanings) and killed, by some accounts, 100,000 people. What happened afterwards is morally worse: the Burmese dictators, slow to react, paranoid, and callous refused much needed foreign aid and foreign aid workers. In large measure, they failed and continue to fail in their role as agents of change. That illustrates one problem and sets up another. If a government refuses to protect its own citizens from avoidable death, then what is the responsibility of the international community?

Singer's example does not quite apply to Burma, for the appeal to aid can be effective only on the condition that the recipients accept. To be sure, the survivors of Nargis who require the medical care, fresh water and food would accept aid, but the problem is, and this is a significant obstacle, the route to them must go through their government. In such a scenario, is it the duty of the international community to do more than extend a helping hand? Some, notably Gareth Evans, called for military intervention to be put on the table. Willem Buiter at the Financial Times goes much further, calling for an immediate UN authorized overthrow of the Burmese government (!), and judged the current inertia to be "a confirmation of moral cowardice or incompetence, or both."

Buiter's piece addresses our problem quite cavalierly by asserting that national sovereignty has no intrinsic value and by implication should be subordinated and cast aside in cases of human rights violations. This is a stunning view because of its practical implications for international relations: essentially, the basic units no longer would be states but individuals, and the controlling interests would be those of individuals and not nations. Given that the whole international community is organized around the primacy of the nation, it is unclear how this suggestion, even if we agreed with it in theory, would be put into effect. To name but one concern, there should be skepticism (well-placed, given the history of interventions) that interventions are but handy tools for the advancement of developed nation's policy interests.

Nevertheless, Buiter's concerns with sovereignty are real. The case of genocide is the most extreme but instructive. That sovereignty has been invoked as a legal means to keep the international community at bay while a government slaughters its citizens should cause us to rethink things. We do not want a conception of sovereignty which permits murder with impunity.

A step in that direction is offered in the UN's treatment of this matter in their commissioned report 'The Responsibility to Protect'. Here the commission's authors (co-chaired by the above referenced Gareth Evans) recognize the significance of national sovereignty and attempt to arrive at a conception which does justice to our practice of human rights. Instead of seeing the two concepts as potentially hostile to one another (as Buiter's view has it), they build the idea of human rights protection into the analysis of sovereignty. This works by understanding the function of sovereignty not just in terms of the freedom to set the nation's own ends (constrained only by respect for another sovereign nation's ends), but additionally in terms of responsibilities, chiefly the responsibility to protect its citizens (particularly to secure the objects of a citizen's rights). The invocation of sovereignty would then imply accountability for rights protection. This conception preserves the centrality of the state, since it would remain the principle agent for ensuring rights preservation. However, since sovereignty is understood against the background of an international community, accountability would be to that community (specifically, to the UN). In the case of a nation's total failure to fulfill its responsibilities, there is no basis for a sovereignty claim.

This is a fruitful conception. Just as Kant believes individual autonomy implies moral responsibility, it is appealing to see that a nation's freedom cannot be the freedom to act in any which way it pleases. Sovereignty must be conditioned by some minimal conception of the good. Armed with this insight, we better grasp the grounds for any possible intervention into Burma. One advantage is that we need not put undue weight on the still infant notion of a human right. Another advantage is it clarifies the responsibilities at play. Accountability is genuine only when there is a practice of holding accountable. While the Burmese government bears the principle responsibility to protect its citizens, the international community (i.e. us) is responsible for holding them to that. This captures part of our duty as agents who can prevent avoidable deaths.

The case of Burma demands that the international community come to grips with its stance on the relationship between sovereignty and human rights. We need leadership, direction and decisiveness in this matter. Deliberation, by some accounts the pinnacle of rationality, is counterproductive when it means that people die in the meanwhile. This is not to say we shouldn't think about what to do; it is a lament that we haven't already come to a consensus about what to do.

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Welcome to America!

A chilling story in the Times about seriously risk averse (or just power drunk?) customs officials who detained an Italian traveling to the U.S. to visit his girlfriend. The officials would neither let him enter the country nor let him leave the country. He was detained for 10 days on grounds only a god could rationalize. Although Italians do not require visas to enter the U.S., their entry is subject to the discretion of the border agents. I think I would prefer a visa system.

The money quote: In explaining to his girlfriend why her boyfriend was being detained, an unidentified agent said, “You know, he should try spending a little more time in his own country.”

Given this welcome, I'm sure this guy won't be making any immediate plans to return to the U.S.

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Puzzling

In his recent column, Thomas Friedman predicts a cold war--with Iran. Given his contemptible endorsement of the war with Iraq, we can only surmise that the belligerent Friedman will endorse and thereby motivate 'transformation' in Iran as well.

The Wall Street Journal recently offered its list of the most influential people in business. Friedman was in the top 5. Prospect Magazine lists its top 100 public intellectuals. Friedman is 16.

I simply can't understand this. Excepting his ability to coin a catchy slogan, what explains his power over minds?

Someone please help me.

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Political constraints on interventions

An editorial in the Times lays out some of the possible political consequences of humanitarian intervention in Burma. Worth reading to recognize the difficulties of taking what may seem the morally obvious thing to do.

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Humanitarian intervention

By now everyone knows about the destruction left in the wake of Cyclone Nargis. Less known perhaps is the reckless and inhumane manner in which the Burmese government has handled the tragedy. Evidently, they did nothing or little to warn their citizens of the cyclone and, worse, have prevented foreign aid from entering affected territories. The government's reasoning for all this is obscure, but even on the assumption that there might be reasons for them to be skeptical of foreigners, the gravity of not permitting foreign aid may be thought to outweigh any possible skepticism.

At any rate, the issue I want to raise for discussion (and which I'll take up at greater length in the future) is more general: is military intervention grounded in humanitarian reasons ever justified. There have been at least 2 prominent suggestions for such intervention in this particular case. First, by Romesh Ratnesar in Time Magazine and by Willem Buiter on the pages of the Financial Times.

The latter questions the value of national sovereignty and raises the specter of Pol Pot (and genocide in general). The former is less aggressive but nevertheless raises the specter of Darfur and points out the negligence of the Burmese government.

Under what conditions, if any, is an intervention into a sovereign country (does it matter whether it is democratic?) for humanitarian reasons justifiable? What do we need to take account of? Does there have to be a legal basis or is a moral one sufficient? Does a historically grounded skepticism about military interventions trump everything? Given the lives at stake, do intentions matter?

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Digressions on War and Peace by Matias Bulnes, NYC

Sometimes I feel despair. Like many, I spend a good deal of time thinking, reading, talking and debating about politics, war, society, justice, as our ancestors did generation after generation. And yet violence has not been in decline. Our predecessors’ effort did not manage to bring peace to a world much in need of it. On the contrary, their good intentions often elicited more conflict than harmony (Cf. Marx). Should we believe that our efforts will turn things around in the future?

The XX century was a deadly one. Two World Wars, hundreds of regional wars, inhumane dictatorships, and some 20 years on the verge of a nuclear catastrophe appear on its résumé. What’s worse, as things stand now the XIX century doesn’t seem to be coming much friendlier. Is violence ever going to subside? Can’t we be reasonable and resolve our disputes peacefully? What’s wrong with us!

This is what may be wrong with us: our organization. Maybe, just maybe, peace is a chimera in a world like ours where people live in and around nations. Various nations in the world have achieved a significant degree of internal peace. We observe countries with low degrees of social convulsion almost all around the globe, most notably in Europe or North America. But this peace is restricted to their internal affairs, many of them participating in conflicts with other countries (e.g. the US, England, Israel). My concern is thus international peace, not domestic peace.

I’m not the first one who has deprecated nations. There is a vast literature filled with warnings of the dangers involved in nationalistic sentiments. But I want to focus on the political organization of nations and whether that organization encourages conflict. I want to invite reflection on the possibility that there is something intrinsic to the political organization of nations that partially explains why they can’t live in peace with each other. More specifically, I want to explore the question whether political leaders have a duty to disregard their own sense of justice in favor of the interest of their nation. If this were the case, political leaders should be open to honest dialog only when other alternatives are seen as detrimental to their country. Conflict should thus be expected quite frequently.

Let’s concentrate on the case of democratic nations. The case of authoritarian regimes is more difficult for their political organization is usually less institutionalized and more prone to conflict and turmoil. Plus, if democracy, so usually exalted to the best form of government (or the least bad—as Churchill liked to put it), turns out to be a form of organization furthering of conflict, we can consider the prospects of world peace doomed.

Undoubtedly the role of the politician essentially involves the promotion of the well-being of their nation. They are elected to look after the interest of the nation and they are accountable for it. Moreover, oftentimes politicians have to make political decisions that conflict with their personal stances. Politics is all about making concessions, for otherwise it would be impossible to make political parties workable associations. Parties need to be disciplined in order to constitute a significant political force. And of course parties’ ideologies don’t dictate every single political issue that pops up on the way. There is a significant area of issues where politicians have to take their own stances and where disagreement within parties will arise. But when this happens the disagreements will be resolved one way or the other and the defeated will have to accept the mandate of the victorious.

Politicians are thus accustomed to negotiate their stances and this may well prove necessary for a healthy society. However, what happens when politicians have to face decisions that jeopardize their moral stance? How much should they be willing to compromise in order to accomplish their duty qua politicians? In point of fact, probably this varies from person to person, some being more flexible than others depending on the case at hand. But when the well-being of the nation is at stake, when the highest political value in the minds of most people is in the balance, moral principles that would otherwise be upheld can be overridden. I take it that nobody can consider bombing other countries and killing innocent people morally acceptable, but politicians make these decisions when they have to in the name of their own nation and the responsibility that has been set on their shoulders by their people.

Whether a decision like this is ever morally acceptable is a question I would rather not answer. After all, no political leader would like to be remembered as the one who brought his or her country to a state of near destruction in order to safeguard his or her moral values. I think what is more interesting is why life organized around nations impinges upon our value structure, exalting the value of our nation to an undisputable podium. In fact, the problem does not lie in the politicians only but in society as whole. Politicians are just a reflection of the demands their societies place upon them. There is something about living in nations that makes us one-sided and impartial when judging our situation in relation to that of other countries.

I don’t purport to answer all these questions. Such an endeavor would surely take a lot more time and effort than I can offer here. But maybe, just maybe, there is something about the human condition that predisposes us to give priority to our interest even at the expense of the interest of others. Maybe our organization around nations is just an expression of our natural tendency to form associations that secure our well-being pace others. Arguably this tendency also finds expression within nations as families, political parties, labor unions, racial and ethnic communities, sport fans, business groups, etc. But unlike the situation across nations, within them there is the state, an authority that can settle disputes and, more importantly, encourage reasonableness and mutual understanding.

Whether a worldwide authority like this can possibly be achieved at the international level is hard to tell. At the very least, it is not clear how such an international system could be kept in equilibrium lacking counterbalances. But whether or not that’s possible, we are nowhere near achieving it and hence peace does not seem to be on the horizon. For now it seems as though we will have to go on fighting each other for the centuries to come.

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If only they had strong patent laws to save them

The following comes from our friend, Josephus P. Franks, who posts at Brand ® denotes respectability

I was recently in Bombay, where I had the misfortune of reading in the Times of India an op ed entitled "In Defense of Patents" by Tim Wilson of some Australian IP think tank. It straddled the line between infuriating and hilariously wrong (one example: he refers to the "infiltrated World Health Organization" - infiltrated by whom? Communists, space aliens?), so I felt compelled to write a counter editorial. Thanks to jet lag and another reason, from 12-4am I wrote my piece on a cell phone in my hotel room - then it got erased. So I rewrote a less coherent, more sleep-deprived version from 4-7am. Two friends with connections at the Times made requests to publish it, but nothing has happened so far. Rumor has it that the publisher puts the op ed pages up for sale to the highest bidder, and needless to say, my bid, at $0, is infinitely lower than anything a multinational drug company might have paid.

In qualification of patents

Intellectual Property (IP) is a niche policy area poorly understood by most. Policy wonks and lawyers are no exception.

The late, great American economist John Kenneth Galbraith noted that, though "not deliberately in its service," society's experts tend to propound certain falsehoods: those which serve, or are "not averse to, influential economic, political, and social interest." These popularly believed falsehoods he called innocent frauds, or, more famously, the Conventional Wisdom. The conventional wisdom on IP law is this: that IP protection is an absolute requirement for economic growth, as it provides the necessary material incentives that drive technological advance - which in turn drives economic growth.

However, besides being contrary to "free market," "neoclassical," or "neoliberal" economic theory, this conventional wisdom on IP is contradicted by the lessons of a robust historical record. In contrast to the strong IP laws they now currently advocate, today's Now-Developed Countries (NDCs) used flexible or weak IP policies to grow during their periods of economic development and industrialization. In the 19th century, flexible or even quite weak IP laws allowed countries like the United States, Germany, and Switzerland to informally transfer (or "pirate" in today's popular lingo) their neighbors' best technology, and use it to fuel their own growth. Korea and Japan, for instance, also used flexible IP policies to effect informal technology transfer during their periods of economic growth in the 20th century.

Although NDCs have many creative industries that thrive without any effective IP protection (e.g., fashion, restaurants), orthodox neoliberal economists are surely wrong in believing IP law to be a distorting, growth-retarding governmental interference with free market perfection. In reality, strong IP laws are virtually a precondition for the existence of a number of successful NDC industries like pharmaceuticals. For example, without the prospect of a government-enforced monopoly on future drugs, the NDCs' pharmaceutical companies would lack the incentive to invest in research, which they currently do in amounts that rival government and university research expenditures. Proponents of the conventional wisdom on IP argue correctly that the profits generated by IP protection of corporations' innovations are a major source of funding for future innovations. Yet what they innocently overlook is the inconsequential share of such profits contributed by developing countries - and the quite consequential economic costs developing countries incur by paying monopoly rents to NDCs for their IP-protected technology.

These costs developing countries incur in essentially helping to fund R&D in the NDCs help explain the results of the most careful study available of the relationship between IP law and economic growth, completed in 2003 by UNCTAD-ICTSD. Researcher Sanjaya Lall and colleagues found that below a per capita income of $7,750 (in 1985 dollars), strong IP laws effectively do nothing to promote growth. This is because developing countries are in the catch-up stage of technological and economic development, where before they can use IP law to stimulate domestic innovation, they must first adopt the existing technological state-of-the-art. And doing this by formal means is a far too expensive and slow process for developing countries, which is why all the NDCs used informal technology transfer, or IP theft as it would be called today, during their catch-up periods.

Nor do flexible IP laws hinder formal means of technology transfer by deterring foreign direct investment (FDI). In a 2006 survey of decision-makers in the world's top corporations, strong IP laws were rated as a fairly negligible factor in allocating FDI: strong IP laws were ranked fifth behind factors like the quality of a country's educational system. No wonder then that China's flexible-to-weak IP laws have not prevented a veritable deluge of FDI from inundating the country.

Not only does flexible IP policy facilitate informal technology transfer while not impeding formal transfer through FDI - hence spurring growth - but it also permits the production and sale of generic drugs that save millions of human beings from preventable deaths, and protect developing economies from crippling public health catastrophes.

IP demands serious analysis, not historically-ignorant, self-serving innocent fraud. India would do well to ignore the unsolicited and insistently offered advice of those preaching the conventional wisdom on IP.

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Friedman's error

Sticking to the topic of democracies, Thomas Friedman’s column today laments the “democratic recession” around the world. His explanation of this recession is two-fold. First, the rise of oil prices is known to make democracy less stable, because oil revenues allow authoritarian elements to ignore citizens’ voices. Friedman calls this ‘petro-authoritarianism’. Secondly, the ‘moral authority’ (whatever that is) of the U.S. is diminished, because of various well-known recent moral missteps, and along with it its political influence.

Friedman’s central example of democratic recession is Zimbabwe. No doubt there are serious problems with Zimbabwe, but the example is puzzling since Zimbabwe is neither an example of a petro-authoritarian state (it exports no oil) nor does Friedman give any evidence whatsoever of the connection between Mugabe’s authoritarian behavior and the so-called decline in the U.S.’s ‘moral authority’ (whatever that is).

Aside from that incoherence, Friedman’s reference to the U.S.’s moral authority must be some kind of joke. If a nation wishes to assert moral authority with respect to authoritarian governments, it must work to undermine or at least stop supporting the economic foundations of such governments. The evident relationship between the U.S. and authoritarian oil rich nations is exactly the opposite. Of the top 5 exporters of oil to the U.S., 2 come from authoritarian (by Friedman’s own lights) nations (Nigeria, and Venezuela) (see here for data). If you include Saudi Arabia, it would be 3 out of 5.

It is typical of champions of free-trade like Friedman to explain the existence of authoritarian governments wholly in terms of local factors. This is a convenient error, for when things go wrong it focuses blame on local factors (government corruption, poor domestic financial institutions, natural resource wealth, etc.), and permits us to ignore global ones. To be sure, Friedman wishes the U.S. to assert its ‘moral authority’ to correct such wrongs, but this is to be understood in terms of moral aid that we are not obligated to perform. This leaves out the reality that the U.S. is partially to blame for the continuation of these regimes. Now, it is not politically feasible to suggest that the U.S. cease importing oil from these regimes. However, we need a conceptual framework in which our material support of, and hence blame for, these regimes is made clear. Only then will it be clear that we have an obligation (and not merely a prudential motive) to do something about our damaging behavior.

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The League of Democracies

As if the US hadn’t done enough to undermine the UN, the new great idea in town, championed by McCain but supported by various liberals as well, is to forge a worldwide “League of Democracies.” Even setting aside the unmistakable resemblance to cartoon icon The Justice League, I wonder if there can be a more childish way of doing international politics. Like Bush’s Infinite Justice, this is yet another attempt to separate the good from evil in the world. And guess who is at the very center of all the good in the world... If that doesn’t convince you of how stupid this idea is, read this excellent column about the horrible practical consequences of implementing such a League.

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Italy's Deep Contradiction

The most common mockery of Italians is that of an unreflective, undiplomatic mobster. Of course, this is only a stereotype. But it’s one that Italians should find bothersome, unjust and degrading. Undoubtedly most Italians are not even close to that unfortunate model, but strikingly they have elected president for the third time somebody who fits that stereotype quite well.

Of the three appellatives used above to describe the stereotype the only one for which there might be a glimpse of a doubt that applies to Berlusconi is “mobster.” I say this only because officially he is supposed not to be one, but pretty much everybody (supporters and detractors) knows that he has bypassed the law more than once in his life. Recall that he was indicted on corruption charges the last time in office. Those who follow soccer will remember also that the team he owns, AC Milan, was penalized recently for fixing games by bribing umpires. The reason why these issues haven’t settled in the Italian public opinion most likely has to do with his dominance of Italian mass media, which takes us to the second appellative used to describe the stereotype: “unreflective.”

That he is unreflective is hard to contest, for he is unable to see the conflict of interest that his ownership of Italian media raises in relation to his presidency. How can he possibly deem a doubtlessly unfair victory like his furthering of Italy’s prosperity? Granted that he probably is not the brightest person on the face of the Earth, this doesn’t fully explain his total incapacity to put Italy’s interest before his. Unreflectiveness is thus called for to explain his undaunted remorselessness.

As for “undiplomatic,” we have an embarrassment of riches. Of all his gaffes, I will just remind you of the occasion when, after a summit, he suggested that he had seduced Finish female president, Tarja Halonen, to get her to agree to some political deal. In an official event before the world's press, he joked that he had had to “dust off his playboy skills” with President Halonen. Upon recognition that he had made a mistake he tried to fix it by remarking on her ugliness. He said that anyone who has seen a picture of her must know that he was joking. Talking about good diplomacy…

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"No greater legal monstrosity than a secret statute"

An executive order is the product of the executive, and he has the authority to revoke at will. So, suppose an executive publicly declares some order that prohibits certain interrogation techniques and then changes his mind, publicly declaring instead that they should be now permissible. Those interested in the content of the law, its consequences for public policy, its ramifications for international relations, etc., will first turn to X and then to Y to acquire guidance and direction about what they should do. That’s what the publicity condition on legal principles is for, because if law is to serve as an instrument by the people for the people, the people must know and have access to it. So, whether one agrees with X or Y, at least one knows our government’s standing with respect to that area of law.

The current executive in the U.S. has a different take on matters. His Justice Department disclosed yesterday that not only can the executive change his mind about an executive order, that changing of his mind does not need to be publicized. The New York Times reports, “At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.”

So while the initial executive order is made public, the actual functioning directive to all agencies under executive power can operate in secret. This understanding of executive privilege has wide ranging adverse consequences. For example, while citizens may believe, because of a public executive order, that the U.S. does not condone some heinous act X, all agencies under the executive may through some secret directive actually condone and engage in X. To point out just one concern, how can a responsible citizenry protest and attempt to change a law it cannot know about?

We already know, because of the fine work of the Boston Globe’s Charlie Savage, about the Bush administration’s abusive use of executive signing statements. Their excessive employment can be considered a form of secrecy, but technically they are not since the executive’s statements are a matter of public record. However, yesterday’s disclosure marks a whole new path to secrecy.

In the nature of things, the Justice Department official justified this interpretation of the executive’s powers by invoking the need for secrecy in matters of national security. However, even if we suppose that in matters involving dire necessity secrecy is justified, the powers referred to are general and are unconstrained, as a matter of law, by the substance of the matter at hand. We can see this with the Bush Administration’s handling of the OLC torture memos. What reason could be given to make those legal documents classified, except to save the administration from public ridicule?

At the heart of a discussion on the conditions required for a legal system to exist, Lon L. Fuller, a noted legal philosopher, declared that “there can be no greater legal monstrosity than a secret statute.” Who, except the shameless and corrupt, can disagree with that?

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