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Elaboration on the War Crimes Bit

[ 15 ] August 2, 2010 |

My main interest in this thread is the proposition that the term “war crimes” has a relatively clear legal meaning, and that there’s considerable treaty law, case law, and learned scholarly opinion constituting this meaning. If we want to use the term “war crime” in light of this meaning, we have to acknowledge that the term has its limits, and that many of the horrible things done in war fall outside of the legal meaning of the term “war crime.”

If this creates skepticism about the utility of the term “war crime” as a political tool, that’s fine; while it’s not quite true to say that jus in bello restrictions have been generated by and for rich white men, it’s not entirely incorrect, either. The entire enterprise of international law suffers from the same problem. Of course, we can also continue to use the term “war crime” in the pejorative, distinct from any legal meaning. We would use this in the same sense that we call mountaintop removal “criminal”, even though we know that there is no specific legal sanction preventing Don Blankenship from doing whatever he wants in West Virginia.

However, we should also be aware of the fact that we give up something when we dismiss the legal meaning of the term “war crime.” The “war is hell” argument is fine and well, but in practice it leads to Ralph Peters-style behavior in actual war; since war is hell anyway, let’s kill ’em all and let God sort ’em out. Jus in bello restrictions create a distinction between the “horrible” things that happen in war and the “illegal” things that happen, and create a means for addressing that distinction. If we discard this distinction, then it becomes more difficult to apply specific criticism to such behavior as murdering prisoners or terror bombing civilian neighborhoods. For my own part I think that this is quite valuable, and I think that the approach of making certain actions illegal (whether or not they often face actual prosecution) has helped restructure how many military organizations think about using force. This includes the US military; as international law regarding targeting practice has evolved, so have US targeting policies. Sometimes this is because of a genuine fear of prosecution (domestic or international) but more often it is out of concern that the term “war crime” will be applied in its legally determinate sense to US activity. It’s also worth repeating at this point that jus in bello restrictions hold regardless of whether the war itself has been undertaken legally, and that this also is intended to have a deterrent effect; if soldiers knew that they could be prosecuted for jus ad bellum violations even if they hold to jus in bello, then they’ll be less likely to observe the latter.

As a final note in support of the legally meaningful use of the term “war crime,” I would add that the Goldstone Report relied on this conception in order to harshly criticize Israeli tactics during Operation Cast Lead. Specifically, Goldstone argued that the IDF had intentionally targeted civilians on several occasions, and had violated the proportionality requirement of the doctrine of double effect by attacking target with little military value in ways that made high civilian casualties very likely. The Goldstone Report also determined that Hamas rocket activity targeting Israeli civilians constituted a war crime. To my mind, the ability to use the term “war crime” in this sense, rather than in its much more nebulous “this is something horrible that happened” is quite valuable, and ought to be supported. While it’s true enough that neither Israelis nor Palestinians are likely to receive direct legal sanction, that’s only part of question; credible war crimes allegations serve to embarrass powerful actors, and help provide the foundation for creative critiques of foreign policy behavior.

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WikiLeaks and the First Amendment

[ 40 ] August 2, 2010 |

I don’t have enough knowledge about the contents of the Afghan War Diaries to engage in informed commentary about their contents, so what I’m saying here is more a way of striving discussion about some of the questions raised by the leaks as opposed to a definitive conclusion.

Since we were speaking recently of the right-wing’s most recent Greatest Monster Hugo Black, I’m reminded that when thinking about national security and freedom of the press, I always return to his concurrence in the Pentagon Papers case. Because it involved prior restraint, N.Y. Times was a very easy case and its holding isn’t directly relevant here, but some of Black’s broader analysis remains relevant:

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

A few points in the spirit of applying these principles to the current controversy:

  • A clear distinction should be drawn between the leakers and people who publish leaked material (in whatever forum.)    Although I think Ellsburg was a hero and I’m glad that the Nixon administration’s authoritarianism prevented him from being convicted, prosecuting him was defensible.   Trying to suppress the Pentagon Papers or punish people for publishing them would not have been.     Based on what we know, I can’t imagine any scenario under which prosecuting Assange would be consistent with contemporary First Amendment values.
  • Prosecuting Assange under vague, authoritarian laws passed under the Wilson administration definitely doesn’t count.
  • Whether as a legal or pragmatic argument, I’m very leery of arguments that leakers have done something wrong based on threats to “national security.”     As Black went on to say, “[t]he word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”    This isn’t to say that such arguments are always wrong, but — especially when they’re self-serving claims made by state officials — they should be treated with a very substantial degree of skepticism.
  • This is particularly true in cases like this because arguments from “national security” have a strong tendency to treat secrecy and the shielding of both decision-making processes and the costs of war as ends in themselves.  As Stephen Holmes has argued in persuasive detail, the last decade has been most unkind to assumptions that secrecy and unilateral decision-making enhance national security.

As we learn more about the Afghan Diares, I think these principles should be kept in mind.

Things that Should be Illegal

[ 16 ] August 1, 2010 |

This is why making land mines illegal is a good idea:

Vacationers and other people along the rivers and beaches near the North Korean border were confronted by a deadly surprise over the weekend, as dozens of land mines from the North washed up in flooding caused by heavy rains, officials said.

A man in the South Korean border town of Yeoncheon, northeast of Seoul, was killed Saturday when one of two land mines he had picked up from a stream exploded, the Defense Ministry said. A friend was seriously injured and hospitalized.

To be clear, this could easily have happened the other way; South Korea and the United States use landmines for the same reasons as the North Koreans. The Obama administration’s policy on this question has not been good.

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Creating Critical Distance; or, on Teaching Avatar: The Last Airbender

[ 2 ] August 1, 2010 |

As I noted earlier, I decided to teach an episode of Avatar: The Last Airbender in my “American Manga” class even though only half that title applies.  (It’s technically “American anime.”)  I chose the penultimate episode, “The Ember Island Players,” because it 1) requires almost no knowledge of the series to understand and 2) it performs the show’s fraught relation to its Japanese forebears.  I’ll tackle the first item today, the second tomorrow.

Before I continue, I’ll add the same caveat I have to all these analyses designed for freshmen-level composition courses: they’re designed for freshmen-level composition courses.*  I’m attempting to model engaged cultural criticism for students who consider culture something to be passively consumed, i.e. I provide the tools then teach them how to construct a persuasive rhetorical argument.**  On with the show:

“The Ember Island Players” requires little knowledge of the series because it consists of the main characters watching a play that recapitulates it.  All I need to tell the two students who haven’t already seen every episode is that the kids are about to go to war with the Fire Nation, and that this play (as the title of the episode indicates) is being produced by a Fire Nation theater troupe.  As soon as Sokka—the Zeppo of this crew—discovers the poster, the difference between the kids:

Continue Reading (at my place because embedding all those images takes forever and I still didn’t quite nail it)…

Wikileaks and “War Crimes”

[ 93 ] August 1, 2010 |

Last Monday, Julian Assange told reporters in London that the Afghan War Diaries reveal war crimes in Afghanistan, and reiterated this statement on Democracy Now! midweek. The claim has been widely reported and is being reported as fact by some sources.

This installment in my series on the Wikileaks story will evaluate this claim and correct a few conceptual inaccuracies circulating in the press coverage. But first, here’s what this post is not arguing. I am not arguing that no evidence of war crimes exists in the war logs. Actually, it would surprise me if there are not some genuine international humanitarian law violations evidenced in those documents, as some occur in every war, and many are already well known to have occurred in this war. Any new allegations should be investigated immediately by the responsible governments (if indeed they have not done so already).

That said, several of the examples Assange has given in his interviews so far or that have been reported in the press are not actually war crimes, and those that may be have long been known to those following the war. This brings me to three important points about whether Assange’s “revelations” of “war crimes” can justify the potential risks to which he exposed others in “blowing the whistle.” Read more…

Character Actors And Sidemen Make the World Go ‘Round

[ 1 ] August 1, 2010 |

Maury Chaykin, R.I.P. He was a fine actor, and I was especially fond of him as the careless, vaguely ethical bookie in Owning Mahowny.

And, also, Ben Keith R.I.P. Although he’s permanently linked with Neil Young, it was an interesting and varied career — who knew he played on “I Fall To Pieces?”  — and he helped create so much good music I forgive him for producing Pieces of You.

“Jane Smith of Seat 4B Once Put A Quarter In A Church Poor Box, So She Deserved To Be Asphyxiated To Death.”

[ 51 ] August 1, 2010 |

Yes, as I think I’ve said before I’d have to say that this passage is pretty much definitive Rand.

As it happens, I’ve been reading Jennifer Burns’s very good Rand-and-the-right book Goddess of the Market , and this is indeed the most remarkable revelation:

Her diaries from that time, while she worked as a receptionist and an extra, lay out the Nietzschean mentality that underpins all her later writings. The newspapers were filled for months with stories about serial killer called William Hickman, who kidnapped a 12-year-old girl called Marion Parker from her junior high school, raped her, and dismembered her body, which he sent mockingly to the police in pieces. Rand wrote great stretches of praise for him, saying he represented “the amazing picture of a man with no regard whatsoever for all that a society holds sacred, and with a consciousness all his own. A man who really stands alone, in action and in soul. … Other people do not exist for him, and he does not see why they should.” She called him “a brilliant, unusual, exceptional boy,” shimmering with “immense, explicit egotism.” Rand had only one regret: “A strong man can eventually trample society under its feet. That boy [Hickman] was not strong enough.”

So I guess that when she made her Ideal Man a rapist she was making a concession to the altruists and parasites…

STAGGERING REVELATIONS!!!

[ 4 ] August 1, 2010 |

I am shocked, shocked to learn that Howard Zinn, of all people, had leftist attitudes and associated with known leftists. I would also be stunned to learn that he may not have been entirely forthcoming with the FBI about such associations. Somebody should notify their local Tea Party chapter…

You forgot Pantload!

[ 7 ] August 1, 2010 |

Sir Charles on the midterm elections:

There really isn’t adequate space to address the extraordinary drop in American prestige that accompanied a war of aggression fought for bogus reasons, the use of torture as official U.S. policy, massive increases in poverty and inequality, and the world-wide economic collapse largely brought about by irresponsible American financial institutions.

And the current Republican response to this record of shame is to say give us another shot to make it all happen again.

Well, yes. But Sir Charles seems to have forgotten that we are living in the era of Domino’s Pizza, and that any minute now the GOP is going to “admit it screwed up” and then something something something NO MORE SOCIAMALISM!!!1!111!!EXCLAMATI0NP01NT1111!!!

Can We Get Rid of the 4th Amendment For You Too?

[ 10 ] August 1, 2010 |

Shorter Col. Mustard:   “Religious freedom, pluralism, and equality might be important American values, but if they might cause Osama bin Laden to say something snarky on a videotape, out the door they go!”

The extent to which Republican politics consists of ressentiment all the way down is becoming more widely known. In foreign policy, this leads to the dark irony that the policies they believe will upset Al-Qaeda couldn’t be doing more to play into their hands.  It should be obvious that conceiving 9/11 as part of a war between the United States and Islam is precisely what bin Laden wants, but the ADL and the wingnuts whose illogic they’ve decided to adopt wholesale have other priorities.

Poor, Underpriveleged Yankees Receive Another Donation

[ 50 ] July 31, 2010 |

So the National League tried to help out the poor defenseless Yankees before the season by trading them a quality starter for a marginal fifth outfielder, but so far it’s been merely an awful trade rather than a complete heist (although I bet Vazquez ends the year with an ERA+ well over 100 while Melky will still be Melky.)    So I guess the Yanks needed more charity, getting an excellent hitter in a mild down year and cash in exchange for a “free Coke refill at Appelbee’s with $30 purchase” coupon.    Man who should return to blogging Ken Tremendous summarizes the progression of the Astros’ “logic”:

    • Astros paying Berkman’s salary is like a homeless guy getting robbed by a billionaire and throwing in a free shoeshine.
    • “We want Berkman.” “Okay.” “But you pay him.” “Okay.” “In return, we’ll give you a pile of cat vomit.” “Okay.” “Now gimme your car.” “Okay.”
    • “I will trade you negative four million dollars for Lance Berkman.” “Deal!”
    • “We want Montero for Berkman.” “How about we give you nothing and you give us four million dollars and Berkman.” “Even better!”

    I expect that by the time they formally announce the trade the Astros will have thrown in Brett Myers too.    And the fact that now that Spec Richardson seems to be running the team from beyond the grave the Astros might challenge the Pirates’ losing streak record before they win again won’t be that much consolation.

    Making It Easy

    [ 10 ] July 30, 2010 |

    Obama’s glacial pace in making federal court nominations is not, strictly speaking, an example of the kind of thing Krugman is talking about today. Making a couple dozen more nominations to the lower federal courts would not be a base-energizing move (nominating someone like Pam Karlan to the Supreme Court, maybe.) But allowing a lot of vacant seats on federal courts as the GOP is poised to make huge gains in the Senate is still bad on the merits — bad for the functioning and fairness of the criminal justice system, and bad for the application of federal law. And while this is an area in which Obama’s power is shared with an institution in which Republicans have a de facto veto, it’s still true that 1)he could make it harder for them, and 2)even with the Republican obstructionism he almost certainly could have gotten more nominees confirmed if he had made more nominations.