Close Readings

Here's some more fun with Slate's newest legal expert:

However, no amount of caveating can save the latest Defense Department memorandum on the legality of torture (first reported by the Wall Street Journal) from being construed as what it is: a cookbook on how to conduct illegal torture and get away with it.

Tax law talks about the difference between tax minimization (perhaps immoral but legal) and tax avoidance (illegal). The 'legality' of the actions outlined in the 'cookbook' is precisely the issue in question, simply stating that 'torture' is 'illegal' is question-begging when analysing the memo and so does not get us very far.

Here, the memo gets really Kafka-esque. "A defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control." It's not enough, in other words, for severe pain or suffering to accidentally result from torture.

Mens Rea, anyone? Also, can someone please look up the 'absolute military security' exemption in the Geneva Conventions?

In a wonderful example of circularity, the lawyers state: "The Department of Justice has opined that [the federal war-crimes statute] does not apply to conduct toward al-Qaida or Taliban operatives because the president has determined that they are not entitled to the protections of Geneva and the Hague Regulations." It's never a good sign when lawyers refer to other lawyers' opinions (as opposed to laws or court decisions) as authority for a legal argument.

Actually, in the hierarchy of government lawyers, the DoJ's lawyers are king. Other departments ask them for definitive legal advice and they are supposed to abide by the advice they get. So quoting them is in fact standard practice. If the issue is the corruption of a traditional culture of legal objectivity in the advisings section of the DoJ (the 'Kool-Aid' jibe) then I haven't heard it, and in any event it is an argument that comes perilously close to claiming that new administrations don't have the right to implement their policy and be judged by the people on its outcomes. This is especially so in the US political system (compared to the Westminster system of - at least traditionally, though increasingly not currently - bureaucratic independence and tenure).

"Law" and "war" may seem like the ultimate oxymoronic pairing, but until now, the United States has led the world in trying to harmonize the two. Until recently, American soldiers and diplomats could rightly claim that no other nation integrated the law into its conduct of war more than we do. Today, America's ambassadors abroad can no longer make that statement. That, in turn, undermines our ability to force other nations to adhere to international law, since we no longer lead by example. More practically, our soldiers used to take comfort in the principle of reciprocity where the laws of war are concerned; now they have to worry about reciprocity from our enemies. We must return to the old bright-line rules which used to govern our conduct in war, both because it's the right thing to do and because it's in our interest to do so.

Strangely enough, I agree completely with this final paragraph. I only wonder at its connection to what went before. The whole issue, which government lawyers are forced to grapple with even if sheltered academics and newly-minted JD students refuse to condescend to join them, is the interpretation of the laws of war in evolving circumstances and their implementation on the ground. This is all assuming of course, that we are in, as the White House believes, a 'war on terror' rather than a global police operation. And that is an entry for another day.

Optimization in 'torture-security' space

I've mentioned previously how international law texts need to be read by lawyers with great caution and a complete understanding of their status as political compromises in multilateral bargaining situations, where a lowest common denominator dynamic necessarily obtains. The better international tribunals (perhaps cognizant of the precarious nature of their legitimacy viz-a-viz domestic law tribunals) do a good job of that (see the current Rawandan Genocide Tribunal and its tip-toeing around the finding of fact of 'genocide': if those events don't count as genocide, what does? - and this in spite of the fact that the definition of genocide in international law is absurdly broad - as one would expect from the outcome of multilateral negotiations.) Time has now enabled us to see that the (underused) World Court's reputation for seriousness was greatly damaged during its decision in the Reagon years in the Nicaragua case, in spite of that case at the time receiving encomia of gratitude from the (predominantly) left-leaning academic international law community.

Aside: Haven't we forgotten in the current Reagon love-fest how unilateralist his government was . . . . .

That government lawyers read the Geneva Conventions down like a private sector tax lawyer reading the tax code down to aid a client's tax minimization needs should not surprise us. Good lawyers are trained to read statutes down, and there are good political philosophy reasons behind such cautious cannons of statutory interpretation. Government lawyers, like private sector lawyers, are of course client-focused in their advice-giving.

Dog bites Man

During my PhD at UCLA I RAd for a few law professors in the law school and so bumped into this guy in the law library once or twice. He now has an amazing gig at Slate, well-earned, but in my conversations with him (admittedly about two years ago) I don't recall him being as liberal as his recent articles would indicate that he is, and it is easy to verify that his current Slate articles do occasionally contradict more pragmatic and balanced, long-ago written entries in his blog on the same themes. It could be that he is simply swinging left to cater to the tastes of his new bosses (which is fair enough I suppose), made worse by the fact that Slate has itself been swinging wildly to the left in the past months, a phenomenon that likely won't end till after the election.

Opium for the masses

Glad to be back in LA just in time for the last of the NBA finals games. I became a Lakers fan during my first year of the PhD [Ed: Eh? - You can't just study, and learning one of the new nation's sports is a great way rapidly to adapt and feel less alienated.], the same year the Lakers won the first of their consecutive three titles. This year will be four out of five.

Having spent my youth following the Geelong Football Club in AFL, the Netherlands national soccer team in the World Cups and the Australian Cricket Team during the 80s West Indies domination, it has been a shock to the system to follow a team in which there exists always the feeling of inevitable victory. A bit like being a Carlton, Yankies, Man U or Brazilian soccer fan. [Ed: Like being a pro-capitalist during the 20th century? - There was nothing inevitable about that victory . . . . ]

PS: Euro 2004 starts this week also in Portugal. Go Oranje!

PPS: The title of this entry is thanks to Terry Eagleton, who thinks mass sports keeps the masses' eye off the political/revolutionary ball. Well yes, and, as the Germans say, nah und?

Changing Places

Apologies for the light blogging: It was my last week in Australia and I had much to do, presenting a paper to the economics department at ANU and lecturing some visiting Indonesian electricity/gas regulators on how they should better do their job, as well as visiting the econ and law faculties at Melbourne Uni and farewelling friends and family in Canberra and Melbourne/Geelong. Am today back in LA (and sadly no inflight dramas to report this time).

After two weeks here I'll be spending a month conference hopping around Europe, so don't know how often (if at all) I'll be able to blog while travelling (regular readers of the blogosphere will know that declarations of intent to blog while travelling constitute the triumph of hope over - collective - experience). However, Raj will soon be back, basing himself in LA for a while. We're also planning some changes to this blog, so stay tuned.

PS: I am not sorry to be out of the Canberra cold.

Fashion

Artistic fashions come in psychological cycles, first the ego is dominant, then the superego, then back again. These fashions don't necessarily positively correlate with the business cycle: times of great surplus often producing morally earnest art, recessions the need for distraction and entertainment.

When I was growing up (the late 80s/early 90s) too-clever fiction was the norm of excellence for aspiring novelists. Rushdie, Eco, Barnes, Kundera, De Lillo, McEwan, Amis. Perhaps there was an aftershock at work of the late 70s/early 80s post-modernist fashion, with (in English-language translation) some Latin American fabulism (aka 'magic realism') thrown in. Wit, erudition, irony, cleverness, a surface brillance of image and words - these were the values by which first-tier fiction was to be judged.

Since the mid-to-late 90s (at a time of emerging consciousness of an extraordinary economic boom) the stars of such authors have been descendent (Kundera's pantheonic fall has been startling), eclipsed by the rising stars of other authors (like Coetzee, Sebald, Wolff, the stories of Du Bois) whose work is characterized by a fictional philosophy more sombre and simple, eschewing cleverness-for-its-own-sake (now seen as smart-assedness), focusing on great moral dilemmas, unavoidable betrayals and life-long guilt. Bernhard Schlink's incredibly successful, simply written book 'The Reader' of 1997 appears to have played a large part in this turn.

Some of the previous leading lights have caught on. It is a measure, for example, of the essential second-tier nature of McEwan's artistic mind that he felt the need to produce a book like 'Atonement' (and doesn't the title reveal all?), and this regardless of the fact that it might be his best novel yet. Some of the other authors can't do moral seriousnessness well, and thankfully some (the more serious artists) don't even try. Novelists like Kundera will have to await another turn in the tide of fashion, possibly having to await their rebirth posthumously.

Lazarus with a triple bypass?

For our Australian readers. For those who care about the periodic cheap talk political opinion polls (I'm not one of them), it seems, according to this, that the voters have finally caught up with what the smart money has been saying for a while on sports betting sites (as Daniel recently reminded me).

They are not the same of course: one is a snapshot of current opinion, whereas one is a guess about a future event; consequently, one involves multi-level strategic thinking a la Keynes's beauty contest (as in any market) whereas the other is not supposed to involve strategising at all, but rather directly reveal the (current) preference of the interviewee (actually, there appears to be much strategising (aka lying) vis-a-viz interviewee and interviewer). Still, they can't have remained far apart forever, especially as we got closer to the election.

PS: I have no explaination to offer, having been somewhat disengaged from the game in my time back here, and soon to be gone again.

It IS Possible

Just to show Richard, I am capable of posting while trudging through Laos. Whether I can put a bloggable thought or two together is another story...

I recall a few days ago I wanted to say something about Jeffrey Sachs's latest Economist article. I liked it, because for the first time he presented the battle against AIDS not as something to replace the dollars spent on the Iraq occupation, but as a campaign that can learn from the procedures undertaken for Iraq's reconstruction. Sachs was an outspoken critic of the Iraq war on grounds of opportunity cost (the money would be better spent on AIDS), so it is relieving to see him move forward. As I stated earlier, the two causes -- reconstruction and battling AIDS -- reinforce each other.

Humorously, at times in the article Sachs resembles a caged animal, just thirsting to lash out at the Bush administration -- but he restrains himself. Very well, he is learning from Bono that partisan screaming does little to combat deadly epidemics.

I'm in Luang Prabang right now, a wonderful relief from the fumes and sweat of Bangkok (I used to think that living in New York required some amount of endurance...)