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Tuesday, June 21, 2005
Sympathy for the Devil
by Rob Howse
Global warming, nuclear proliferation, poverty in Africa, repression in China, the AIDS/HIV epidemic—the list of pressing challenges that we international lawyers have a responsibility to help solve is long indeed. Getting a fair trial for Saddam Hussein would, frankly, be near the bottom on my own list. But not so for ex-Duke (and now UBC) law prof Michael Byers. Writing in yesterday’s Financial Times, Byers worries that Saddam, poor thing, has suffered ‘legal prejudice”, in part because President Bush has described him as a torturer, murderer and tyrant who “deserves justice.” No matter that, as Byers himself says in the article, international human rights organizations have amply documented these aspects of Hussein’s regime.
Further, according to Byers, Saddam had his “rights” violated because two tabloid newspapers published photos of Saddam in his underwear. Here, Byers refers to the Geneva Conventions, which—to my knowledge—the tabloids have never signed. However, since the pictures (according to Byers) “must have been taken by US soldiers,” we are led to believe that the US has committed an internationally wrongly act. While Byers expresses great worry that Saddam may not be considered innocent until proven guilty, he is quite willing to condemn the United States based on his assumption about who took those photos. But it is a big leap from this assumption—even if it is true—to the conclusion that the United States bears responsibility under international law for subjecting Saddam to “public curiosity” within the meaning of the Geneva Conventions. (Nor do the Geneva Convention rules necessarily have the status of “human rights”). Byers’ anti-Americanism goes so far that he regards the tribunal to try Saddam as questionable just because of US funding and FBI support for the gathering of evidence. Byers complains that the “beyond a reasonable doubt” for guilt has not been adopted by the tribunal in charge of Saddam.
His assertion that this is a standard set by “international human rights law” is, at best, misleading: the standard is not present in the Covenant on Civil and Political Rights, which nevertheless contains other principles of criminal law (such as no double jeopardy), although it is sometimes inferred from the presumption of innocence in the Covenant.
While the Statute of the International Criminal Court has adopted the “beyond a reasonable doubt” standard (as have the tribunals on Rwanda and the former Yugoslavia), this is with respect to the proceedings before the particular courts in question, and does not create any obligation on the part of any other international or domestic tribunal. Aside from international law, which he arguably misreads, Byers thinks that “beyond a reasonable doubt” is the appropriate standard because it is in universal use today in the “developed world”; this same concern for the practice of the contemporary “developed world” informs Byers’ additional concern that Saddam may face the death penalty. At the same time, Byers suggests that it is “Arab, more than western, opinion” that Saddam’s trial needs to satisfy. How many Arab states have abolished capital punishment altogether? According to Amnesty International, the answer is virtually none.
Perhaps the weirdest idea in Byers’ article is that “An evidently fair trial might help to sway those who sympathize with Saddam.” True, I don’t count many Saddam sympathizers in my own circle of friends, but from such public sources of information as are available about such individuals, due process of law and fair trials haven’t been among their main priorities. Summary executions and dismemberments are more their speed.
I do think, though, that Byers has at least one important point. It is crucial that Saddam’s trial be public and widely accessible to the media. The main advantage of the trial—an advantage that in my own view could better have been captured by a Truth Commission rather than criminal prosecution—is that it will make Saddam’s record visible to a large public, both in the Middle East and elsewhere. If that is done properly, then we may all be able to stop obsessing about weapons of mass destruction, and see that—perhaps not entirely for the right legal reasons—America and its allies did the right thing to cut out the cancer of Saddam’s regime.
Update: there is now a link to Byers' piece in this post.
Posted by Dan Markel on June 21, 2005 at 08:34 AM in Law and Politics | Permalink
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Comments
If you are going to slur a legal scholar as "anti-American" for making plausible points about due process, then you owe us some explanation of what you mean by anti-Americanism. Alternatively, you might edit your original post.
Posted by: BL | Jun 21, 2005 11:00:00 AM
Somehow, I think a good case could be made that coddling murderous dictators is anti-American.
Bah.
Posted by: justakid | Jun 21, 2005 11:14:58 AM
This is not a "slur" but an opinion, the most plausible interpretation of several moves within Byer's article, including the one I explicitly mention--namely, ASSUMING that the MERE involvement and support of the United States in the preperation of Saddam's prosecution contributes to making his trial "dubious." Whether it is on this point, or on the underwear photos, Byers appears always prepared to ASSUME the worst about America. If that isn't a plausible basis for interpreting his article as (in part)a reflection of anti-Americanism, then I don't know what is.
For my understanding of anti-Americanism more generally please read my review of Jean-Francois Revel's book on the same subject, http://www.policyreview.org/oct03/howse/html.
Nevertheless, I'm always willing to be persuaded, and if Byers were to come back and explain himself in terms that suggest the interpretation of anti-Americanism was incorrect, I'd be always prepared to edit the post.
best,
Rob
Posted by: Rob Howse | Jun 21, 2005 11:23:37 AM
"Slur" and "opinion" are not mutually exclusive categories, as you must surely realize. That you disagree with his assumptions is clear, but that does not make him anti-American or you a philo-American. His assumptions about American conduct are far from the worst possible--again, as you must surely realize. That a legal scholar makes points about due process pertaining to the trial of a heinous figure really isn't that weird, and doesn't warrant your slur.
Posted by: BL | Jun 21, 2005 11:30:41 AM
America and its allies did the right thing to cut out the cancer of Saddam’s regime.
The truly distressing thing that I find about pro-war advocates in the middle east is their lack of a sense of history.
When has U.S. meddling in the middle east ever rebounded to U.S. interests? (To say nothing about European meddling.)
I'm not even talking morality here. Attacking the Iraq war on moral grounds is too easy. It's like beating up patients in the intensive care ward. I'm talking pure utilitarian self-interest.
U.S. involvement in Iran: CIA overthrows Mosaddeq because he tried to nationalize the oil fields (u.s. foreign policy as driven by oil appears in 1953), installs the shah. Consequence? A quarter-century later, the backlash appears in the form of the Ayatollah, etc.
U.S. involvement in Afghanistan: CIA arms and trains a bunch of guerillas. 9/11/2001: those guerillas come back to bite us in the ass.
Today, we de-stabilize Iraq. We create a world image of ourselves as an out-of-control nation of sadist torturers in Abu Ghraib and Gitmo. What price will we pay in 20 years for this one? The statute of liberty? The golden gate bridge? Chicago?
Posted by: Paul Gowder | Jun 21, 2005 11:42:33 AM
We simply disagree in our reading of Byers' article. I think, for reasons that I've given, that the assumptions he makes about US conduct, on both the points mentioned, suggest "anti-Americanism." While the word "slur" has a certain emotive or rhetorical value, it is inappropriate here because clearly my intent is to characterize Byers' manner of argumentation not to insult him. Readers are free to make their own judgment about whether Byers' assumptions or underlying premises reflect anti-Americanism. Your use of the word "slur" distracts the debate by putting it on the level of whether for some reason I have a personal grudge or animus against Byers (I don't; I've only met him once and that was totally friendly), and whereas I've offered my reasoning as to why assumptions of the kind Byers makes reflect "anti-Americanism" you haven't offered any reasoned explanation as to why someone could make those same assumptions without having any "anti-Americanism" in their outlook. You also wrongly suggest that I equate the mere existence of concern about due process with anti-Americanism, whereas of course I say nothing of the kind in my post, but instead point to Byers' specific assumptions about US conduct and motivations, not to his general preoccupation with due process for Saddam, as arguable reflections of anti-Americanism. You do also suggest that Byers could be assuming even worse things about the US than he does--far worse. I'm not sure what you mean by that, it sounds terribly vague. But if you are up for a discussion about the nature of anti-Americanism then let's have it, and get over this whole "slur" business.
Rob
Posted by: Rob Howse | Jun 21, 2005 11:48:34 AM
I can not read his article, since there was no link, and it is perhaps not accessible on-line. That calling someone "anti-American" is a slur has nothing to do with personal grudges; it is, indeed, a phrase with emotive force (it has no cognitive content, as far as I can tell, though perhaps your review, to which you link, will enlighten me), and it is deployed not to "characterize" your opponent's arguments, but to belittle and dismiss them. Since we have only your rendering of the arguments to go on, it is hard to know whether this is fair or not. But even on your rendering, it appears that Professor Byers is raising questions about due process in the trial of a heinous figure, which is one thing lawyers sometimes do. You apparently want to stick by your slur, which is fine, so readers who have access to the article on which you're commenting will have to assess for themselves whether it is warranted.
Posted by: BL | Jun 21, 2005 11:57:13 AM
Rob,
I find the use of labels such as "anti-Americanism" to be quite problematic. Just because a person is critical -- even very critical and skeptical -- of current US policies does not mean that they are anti-American. Just because one always "assumes the worst" about Bush Administration activities does not make one anti-American either. Who, exactly, defines what "Americanism" stands for? What exactly does "Americanism" mean? I am not opining on the merits of Byers' positions or yours, but I think that labels such as "anti-Americanism" do not contribute to a meaningful debate or discussion. In fact, they seem to assume that there's one "American" position on things, one unified "American" sensibility. In this regard, using the label is somewhat akin to many critics of America who assume that all Americans think and act in a certain way. I think your argument would be much better served without resorting to such needless politically-charged rhetoric.
Moreover, when critics of American policies have been labeled anti-American, this label has often been affixed in order to discredit them. This is a way to avoid focusing on the content of their arguments -- much easier just to resort to labeling them as "unpatriotic" or "America haters." You certainly go beyond this by offering arguments, but the rhetoric you're using has a history of being used in the ways I'm describing.
Dan
Posted by: Daniel Solove | Jun 21, 2005 12:01:46 PM
For Mr. Gowder,
I do not believe these examples are probative. They need to be evaluated in light of the constraints and necessities of the Cold War, which is now over. Iraq has not been "destablized." They have a democratically elected government. There is ongoing sporadic violence, perpetrated by thugs who have no political programme, no broad-based popular legitimacy, and no real military capacity (beyond the ability to kill handfuls of innocents at a time). Abuses in US detention facilities need to be forcefully prosecuted and the systemic factors that allow them to occur must be better addressed than has so far been the case. But I do not believe in collective guilt being assigned to America or even its military for these abuses, just as I don't believe the systemic factors can be explained away by saying it was a matter of a few "bad apples." At the same time, before we hurl the epithets, let us consider just what a supreme challenge it is for human character to be able to maintain fully one's own humanity in the presence of an enemy that brutal and vicious. It is a demand we MUST make of our men and women in the forces; but where, sadly and infuriatingly, they fall short of the demand, we ourselves are inhumane if we then play the game of putting them on the level of the enemy itself.
best,
Rob
Posted by: Rob Howse | Jun 21, 2005 12:06:15 PM
For BL, here is the link. I wrongly assumed that the information that the piece was in yesterday's Financial Times would be sufficient to lead readers to it. http://news.ft.com/cms/s/f7776664-e127-11d9-a3fb-00000e2511c8.html
Posted by: Rob Howse | Jun 21, 2005 12:14:43 PM
For Daniel Solove,
I don't believe that being upfront about the phenomenon of anti-Americanism--a real and important force in the world today, albeit sometimes overstated in importance--entails buying into the logic of anti-Americanism. It is the anti-American outlook that in fact attributes to or assumes particular motivations of particular actors just because they are "American." This is one of the PROBLEMS with anti-Americanism.
I am sensitive to your point that the expression "anti-American" has a history of misuse, including pernicious misuse. Yet I'm not fully or imemediately persuaded that this is enough of a reason to stay clear of it, if only because doing so would run the risk that one simply is blind to or silent about a very real phenomenon that deserves being identified and confronted in appropriate contexts.
But you have given us something important to think about.
best,
Rob
Posted by: Rob Howse | Jun 21, 2005 12:23:05 PM
I'm an law and economics type whose entire knowledge of international law can be written on the head of a pin in 36-point Helvetica, so I cannot comment in any meaningful way regarding the merits of either the columnn or of Rob's competing interpretation of international law. My gut goes with Rob as to the substantive issues, but I'm open to persuasion.
Moreover, I typically find that a visit to the Leiter Reports is just what the doctor ordered if I'm looking to get my blood pressure up a bit -- Brian and I agree on very, very little, and his philosophical orientation and rhetorical style together guarantee that I'll leave his site angrier than I arrived.
That said, I tend to agree with Brian's sentiment, if not his semantics, on this one. Having read and re-read the article, I am hard-pressed to find anything approaching anti-Americanism in its tone. Skepticism and suspicion maybe, but anti-Americanism? I just don't read the article that way. Nor do I see "moves" representative of an underlying anti-American orientation unless I put on the conservative's version of those special glasses that allow certain folks on the Left to see Bush's every act as either the embodiment of evil or indicative of imbecility.
What do I see? An author with a particular (if arguably incorrect) view of due process and standard-of-proof issues under international law. I also see an author who believes his vision of international law should be given precedence over the individual issues attendant to any particular case -- even one with substantial international political implications.
Despite certain conservative (or, heaven forbid, neo-conservative) leanings, I have taken much the same approach in developing my domestic criminal enforcement priorities. We can quibble about the number, but it is better that some number of guilty go free than an innocent be imprisoned. And violation of our procedural protections should carry with it stiff sanction for the government -- up to and including dismissal of a case -- even if "we all know he was guilty."
This is not to say that Saddam Hussein's case is directly analogous. I'm not sure I buy Byers' arguments, and the overall calculus may be different in the context of a former dictator and alleged mass butcherer than in the case of a garden-variety murderer. But it is not implicitly anti-American to elevate one's personal perception of what the rule of (international) law requires over issues intrinsic to a specific case. And that's how I read Byers' article. He certainly doesn't come to the table with the assumption that America's motives are pure, but it's a long way from skepticism to "anti-Americanism."
By the way, I speak from the perspective of a strong supporter of the Iraq war, and as a death penalty opponent who nonetheless struggles with a strong desire to see Hussein get the full Mussolini treatment.
CT
Posted by: Chinaberry Tree | Jun 21, 2005 1:07:38 PM
Rob,
I actually think that the way you use "anti-Americanism" furthers in part the very outlook you want to critique. The "anti-American" outlook you critique is one that hates America qua America -- it assumes that all Americans think and act the same way. It is frustrating that other countries in the world blame all Americans for Bush Administration policies. It is frustrating that some view all Americans with a singular stereotype. Americans are vastly different, and one of the great things about America is its pluralism. Anti-American sentiment gets this wrong about America; this is the fundamental misunderstanding that foreign anti-Americanism has.
When you refer to Byers as anti-American because he assumes the worst about what America is doing in Iraq, you further this stereotype. Isn't Byers' skepticism really about the Bush Administration and its policies? Or perhaps more generally about US foreign policy? And by equating strong skepticism of US policy with anti-Americanism, you are fostering the wrong view that connects US policy with what all "Americans" must think -- the very idea that foreign anti-Americanism thrives upon.
You write: "It is the anti-American outlook that in fact attributes to or assumes particular motivations of particular actors just because they are 'American.'" I agree. But is this what Byers is doing? I can't read his piece because the link you gave comes up to a dead end. But even based on your description of his views, I don't see his critique of US funding to stem from some view of what Americans are all about. So if a person were to criticize US torture policies and US involvement in Iraq, does that make him or her anti-American? Exactly where is that line drawn? Anti-Americanism, as you appear to define it, seems to involve improper stereotyping, a view that all Americans must think alike and therefore share the same motivations. I don't see where you see him equating certain motivations to being American. He might be ascribing motivations to US policymakers, but not to Americans more generally. And this is why your use of the anti-American label strikes me as not only wrong, but to actually stem from one of the basic assumptions of anti-Americanism itself.
Dan
Posted by: Daniel Solove | Jun 21, 2005 1:09:01 PM
Paul: "Stability" is not a good in itself. Destabilising is sometimes very much the best idea. (I think that, for instance, it's a good thing to destabilise an organised crime syndicate by arresting its members.
Posted by: Sigivald | Jun 21, 2005 1:12:55 PM
Thanks for now supplying the link. I have read the article, and I think the anonymous "Chinaberry Tree," above, makes the pertinent points. Given Professor Byers's conclusion,
"By providing due process to those accused of the most heinous crimes, societies demonstrate their adherence to the rule of law. Establishing Mr Hussein's guilt fully and in accordance with the highest standards makes sense in terms of policy, too, in that an evidently fair trial might help to sway those who are predisposed to sympathise with him. The trial needs to satisfy Arab, more than western, opinion. The judges who try Mr Hussein must apply stringent international standards. Justice will be done. But it must also be seen to be done,"
one might even read the piece as trying to offer helpful, prudent advice to the Americans, in light of the foreordained outcome (note that Professor Byers says "justice will be done"), so that the anticipated result wins wide acceptance. I would think someone deserving of the label anti-American would be cheering for an acquittal or for a verdict with no legitimacy. That does not appear to be Professor Byers's position.
Posted by: BL | Jun 21, 2005 1:20:02 PM
Sigivald: I'm not so sure even about that. Read Foucault's Discipline and Punish... it may be in our interest to have a low level of delinquency, either in crime or nations, if by stirring the pot we create the kind of unstable situation that permits more serious problems to emerge.
Perhaps Saddam was in the national interest as he was: a controlled dictator who we could keep an eye on, who wasn't really doing much, instead of a bunch of random fanatics that are much harder to monitor and predict, and with much less to lose.
Posted by: Paul Gowder | Jun 21, 2005 1:43:00 PM
I had hoped that our little blog might stay out of the punditry on the Iraq war, but now that we have dipped our toe in, I'm compelled to join in the melee.
Let's be very clear: Saddam Hussein was a brutal and vicious tyrant. As a matter of pure moral reasoning, there was every reason to depose him. Just as we would be morally justified in deposing Lil' Kim, among others.
But so long as we operate on the level of realpolitik--as I think we must--it is not sufficient that we are morally justified.
Paul's point is overbroad. That is, it can't be true that we must never interfere with middle-eastern governance because such interference in the past has always redounded to our detriment. (By the way, we could add our arming of Saddam during the Iran-Iraq war to interferences that reounded to our benefit.)
The world is such a place that no matter how we act, we are interfering with middle-eastern politics. Aid to Egypt: good or bad? Aid to Israel: good or bad? Aid to Jordan: good or bad? Supporting the despotic Saudi Arabian regime: good or bad? The previous embargo on Iraq: good or bad? The first gulf war: good or bad?
At the same time, Rob's brushing aside of Paul's point is unsatisfying. Rob assumes that our previous actions in the middle-east were merely the product of cold war constraints. Perhaps he means that we had no choice but to arm the Mujahideen in Afghanistan. And perhaps that's correct. But the fact remains that our doing so did redound to our detriment. The same can be said for Iran.
The salient question is how our action in Iraq will play out on the realpolitik level? What will the consequences be?
Rob insists that there is only "ongoing sporadic violence, perpetrated by thugs who have no political programme, no broad-based popular legitimacy, and no real military capacity (beyond the ability to kill handfuls of innocents at a time)."
It strikes me that this is deeply wrong. No political programme? Well, if the violence is carried out by Sunnis loathe to lose their power, then they have a political programme. If it is carried out by Shia determined to enforce Islamic law, then there is a political programme. If it is carried out by external al-Quada terrorists intent on undermining the US, then there is a political prgramme.
No broad-based popular legitimacy? In the micro-sense, that's correct. But in the global sense, if our actions in Iraq fuel the flames of radical Islamofascism, then we may well see the continued growth of "popular legitimacy" for anti-Americanism whereever it can be found. We don't really have a metric for this; and I'm not arguing that this is what we've created. But I reject your apparent belief that we can minimize the import of the insurgency based on the claim that it has no broad-based popular legitimacy.
No real military capacity? Well, even you must realize the absurdity of this claim, since you insert the important parenthetical exception "beyond the ability to kill handfuls of innocents at a time." Isn't that the exception that consumes the whole? Indeed, it could be said that AQ itself has "no real military capacity." And yet it managed to kill thousands of Americans using the lowest tech means possible. A campaign of terror is designed to overcome the obvious lack of traditional military capacity--and in some cases, it can be very effective. (And there is absolutely no evidence that the insurgency is in its last throes. I'm not saying it isn't. I'm just saying that we don't know, and the administration's claim is therefore absurd.)
The bottom line is this: We really can envision numerous scenarios in which the war in Iraq redounds to our detriment. For one, given the apparent massive failure of our intelligence community, no one will trust their claims in the future--even when we truly face an imminent threat. Second, it is extremely plausible that the long-term government in Iraq will either look something like Iran or another strongman like Hussein. Third, whether it is reasonable or not, our actions may well increase the tide of islamofascism, rather than the reverse.
I am not in the business of prognosticating. I don't know what will be, or what would have been had we taken some other tack. But the position that we were morally justified is not enough to carry the day here (and certainly not unless we undertake a moral crusade all around the globe); and the realpolitik concerns are far more worthy of attention than you've given them.
Posted by: Hillel Levin | Jun 21, 2005 1:43:33 PM
The sentence above that reads "(By the way, we could add our arming of Saddam during the Iran-Iraq war to interferences that reounded to our benefit.)" should be replaced with "(By the way, we could add our arming of Saddam during the Iran-Iraq war to interferences that reounded to our DETRIMENT.)"
Posted by: Hillel Levin | Jun 21, 2005 1:47:12 PM
For Hillel Levin,
Your own description of the diversity of motivations of those committing the violence proves my point that there is no "movement" with a political programme that is behind the violence.
There is only one scenario on which the kind of terror that the thugs are engaged in could be effective as a military strategy--it could weaken American and Iraqi will and resolve to the point where the forces are not on hand or effective to resist an attempted coup d'etat even by a badly armed band of rebels. Of course, this is what some may be counting on--the psychology of Viet Nam. Yet the differences are very significant, including the limited but still very important democratic legitimacy of the Iraqi government. And by the very nature of their factionalism the "insurgents" cannot offer a political alternative that has a universalist or pan-Iraqi appeal.
best,
Rob
Posted by: Rob Howse | Jun 21, 2005 2:52:33 PM
Hillel: I agree with all of your comment (even the bit about me being overbroad) except the moral question. Lets open up the moral question:
Getting rid of dictators: good, but how are we to do it? There seem to be three basic ways, with differing levels of harm to the populace.
1. Help the people who want to overthrow the dictator do so: promotes autonomy of the people who are actually being oppressed, avoids our involvement in massive quagmire of killing, doesn't take control of the resources of the nation at issue.
2. Send the CIA to knock him off: avoids our involvement in massive quagmire of killing, doesn't take control of the resources of the nation at issue, but is a little nasty in its methods.
3. Conquer the nation, create massive chaos, kill thousands of civilians, preside over the looting and destruction of priceless art and archaeological treasures, and then sell off the resources of the conquered nation dirt-cheap to your own corporations.
I think we can see a moral distinction between #1, and even #2, and #3. So while I agree with the general project of deposing dictators on moral grounds (albeit I think it was stupid to do so in this case), I think we can't make a moral judgment until we see how the deposing is to be carried out.
Posted by: Paul Gowder | Jun 21, 2005 2:53:35 PM
Rob:
1. You can just call me Hillel. We're all friends here.
2. Before the Iraq war, one of the administration's main arguments in favor of the war was that the Saddamites might join with radical jihadists in order to attack the US. Or, at the very least, they might sell the jihadists weapons. Anyone with even a superficial understanding of middle-eastern politics understands that Saddam and OBL have virtually nothing in common. Their theologies, ideologies, politics, policies, and everything else were altogether different. But I didn't put it past Saddam that he might work with OBL's folks in order to attack the US. I didn't think that Saddam was such a principled man that the fact that his "political programme" wasn't identical to OBL's would automatically exclude his willingness to work with OBL. (I did, however, believe that Bush's evidence for this was way overstated.) By your definition, such a joinder would not be particularly troubling because it had no "political programme." I have no idea what the significance of a "political programme" is for you. For me, the fact that many groups with different ideologies would--or could, or might--join together in order to attack us is scary enough. Indeed, it is even more scary than a monolithic group with a defined "political programme" because one campaign could be sufficient to defeat a monolithic group. With a large group composed of smaller groups, by contrast, there may be no real way--or at least no straightforward way--to destroy the whole. In any event, I don't care whether the insurgency has a unified 10-point party platform, or whether their platform shares only one point: to destroy me. What I do care about is whether they are getting stronger or weaker.
----------------
Paul:
It is good that we agree that you were wrong. ;-)
Yes, there are distinctions among the three options you've outlined, but what you haven't done is figure out whether options 1 and 2 were possible. I will note that we've attempted options 1 and 2 (think Cuba, among other places) in various circumstances, and to varying degrees of success and failure.
Surely option 3 requires a more specific moral calculus: how many dead civilians and soldiers, how much chaos, and how much uncertainty over the future were worth deposing the brutal dictator? I just don't know the answer to that question. But it is a scary question to ask, because one wonders whether a similar moral calculus would lead to continued inaction in Darfur, North Korea, and other places. That's why I prefer approaching the issue first at the level of realpolitik.
Posted by: Hillel Levin | Jun 21, 2005 3:14:38 PM
I'm sure I've been wrong before... once or twice! :-) (I called the 2004 election for Kerry... that's the only wrongness I'm admittin' to.)
You're right about possibility, but I really find it hard to believe that we couldn't have just removed Hussein via option 2 at least if we'd put some effort into it. (I'm less sure about option 1.)
I mean, we have satellites, special forces, stealth bombers, we controlled the airspace of the entire country, we have those creepy "predator" things: how hard could it really have been to take him out via sniper at a rally, or strafe one of his white mercedes caravans, or bomb all of his palaces in the middle of the night? It's not like he had any allies that could have stayed our hand. I think that's really what kept Castro alive: the U.S. couldn't really go all the way to taking him out, because if we'd bombed his palace or something the Soviets would have gotten involved, so they had to do all that idiot keystone kops stuff with cigars.
Of course, the people actually in the CIA know better, but I suspect (from the Downing street memo etc.) that the "shoot him" method wasn't even considered.
Whether that would have just created a power vacuum to be filled by a new despot or not is another question, but not one that we need answer, because option 3 was still available if option 2 failed. We ought to have at least given option 2 (and 1 if possible) a fair shot (so to speak).
As for Darfur and North Korea... I think we do need to undertake that moral calculus. My gut is that it would be different for those two nations. North Korea is run by one guy just like Iraq was, it might be worthwhile to consider just bloody well assassinating him BEFORE we plunge all of eastern Asia into horrible warfare. (Although the nuke issue complexifies all of that thing). As for Darfur, we simply should consider the least harmful way of stopping the genocide. My sense is that it's broad-based enough that we probably would have to use real military methods there... but that's ok, because #1 and #2 would be ineffective, and the genocide is still more evil than the war. Anyway, there's my off-the-hip...
Posted by: Paul Gowder | Jun 21, 2005 3:43:01 PM
#1 was tried in Iraq. You remember. We were going to help the Kurds. They the Stability *&&%$# Idiots got the upper hand and we didn't. That left the Kurds holding the bag of SH1T. They got gassed for that amoung other things. We're lucky the Kurds are even talking to us after that. NOBODY believes we will help them revolt against a bad government. The Stability Idiots have *^$% them over to often.
#2. You remember what happened when we almost killed Qadafee(SP) during the bombing of Libya. The Left came unglued. This is not doable politicly. You see if we knock off leaders then others are free to knock off our leaders. Government leader NEVER like this idea. It is hard to work anyway unless you want to really go after the guy with the military. The idea of sending someone in to just shoot the guy just doesn't work to well and if he is caught then you have all those nasty political things happening. #2 just isn't viable.
#3. That leaves #3. We did it in the Philippines, Japan, and Germany but it takes a LONG time. The fallout in other countries because we went into Iraq looks good so far. Iraq looks good. Except to the fools that think that everything happens overnight. If we can beat the MSM defeatists we can win alot. If we don't then the terrorists will win in Iraq and in the future we will fight even more for less. The terrorist can't defeat us. They can only kill a few people and piss off even the people they supposed to be fighting for. If we stay the course we can win big. But it will take time.
Byers as anti-American: Those of you who don't see him as anti-american. What would he have to say to be anti-american? He is a blame America first and often. Those who want to stop the use of anti-american can't seem to see any cases were the label 'anti-american' can be used against ANY American. It is anti-american to ALWAYS assume the worst about America. Just as it is pro-american to ALWAYS assume the best about America. The MSM, Democrats, and the Left has picked their way. Their banner says "BLAME AMERICA FIRST, LAST and ALWAYS"(Unless of course a Democrat is President in small type).
Will we win in Iraq? To soon to tell.
Was it a good thing to do? Yes, many good things have already happened.
Posted by: Dan Hamilton | Jun 21, 2005 5:56:19 PM
I still dispute the non-viability of #2. First of all, to the extent those of us on the left have a problem with it, my co-leftists simply need to get over it. In many situations, I hold that political assassination of murderous dictators is not only morally permissible, but even morally required. If there's a moral duty to stop the murderer of innocents from killing to the extent of our ability, then there's a correlative duty to do so with as little killing of innocents on our own part as possible, and the least innocent-killing option is assassination.
Your other objection is reciprocity, to which I answer: "but they already tried." Saddam, as you recall, took a shot at Bush Sr.
Also, if I may get all economical for a moment (there's another black mark on my soul), the expected utility of political assassination for them is much lower than for us. If you kill a dictator, the people more or less (depending on situation, heirs, etc.) likely to finish the job themselves and install a friendly leader (or you can do it yourself).
On the other hand, if they kill the leader of a powerful democratic country with a government that isn't going to collapse, all they achieve is the election or accession of the next guy, who will be vengeful.
Kill Hussein, the whole empire collapses.
Kill Bush, Cheney comes into office and wars on you.
Clearly, there's a greater incentive for democracies to use assassination on personality cults, absolute monarchies, despotisms, etc. than the converse.
Posted by: Paul Gowder | Jun 21, 2005 7:14:46 PM
To bring things back to the concrete merits of Byers' argument. The statutes of the Yugoslav and Rwandan tribunals DO NOT establish a "beyond a reasonable doubt" standard for guilt. They merely establish a presumption of innocence. See ICTY Statute, Article 21(3). Much like in America, the Courts are authorized to establish their own rules of evidence and procedure. Art. 15. While the tribunals do operate under a "beyond a reasonable doubt" standard," this rule was adopted as a procedural/evidentiary matter by the judges of the tribunals. I do not know whether Byers made this clear in his article, but it makes his argument weaker than even Rob presented it. Customary international law is a product of state action. States, acting through the Security Council, approved the statutes of the Tribunals, but did not pick any particular level of proof. Indeed, if any principle can be inferred from the statutes, it is that even in prosecutions based on international law, the choice of evidentiary and procedural rules is not a matter of international concern.
In any case, Rob is surely right that one can't generalize rules of international law from the charters of various tribunals. Even if one could, neither the U.S. nor Iraq is a party to the ICC, and the U.S. is certainly a persistent objector, so they would not be bound by rules emerging from ICC practice. If one is serious about making international law out of international tribunal practice, one must recall that the Nurenberg Tribunal -- the granddaddy of them all, constantly invoked as the basis for the legitimacy of this area of law -- had the death penalty, and used it.
Posted by: Eugene Kontorovich | Jun 21, 2005 7:46:29 PM
To those who say they would have liked Saddam assasinated: I believe it has been a long-standing policy that the U.S. does not assasinate foreign leaders. I'm sure the administration knew it would have been raked over the coals for withdrawing that self-imposed ban and didn't think the outcome would have been worth the fallout. Saddam ruled by terror and by all accounts taught his sons well in this regard. Can you imagine the brutality of a power struggle between them? I cann't imagine there are people who think there wasn't a good chance it would happen: Hussein was not know for his family togetherness, at least since the murders of hin sons-in-law. I trust that the administration felt #3 was the best chance at minimizing civilian deaths while simultaneously achieving the preferred goal: A stable democracy or something close. Just to forstall questions: I don't think that means we shouldn't have tried to blow the SOB up at the begining of the war. Killing him at the offset would have weakened his peoples resolve and our troops would have been able to take advantage of the resultant power struggles while also protecting civilians.
I also take issue with those who want to silence anyone who uses the term "un-American." America isn't great because it is diverse, it is great because it isn't. That's why we have the term "Melting Pot." We are a nation of diverse thoughts and opinions, true, but we have always rallied around our common beliefs in times of trouble. At least until the Vietnam war, which seems to be our problem. The real lesson of the Vietnam war is that America cannot achieve it's goals without everyone coming together. And people who think they can enact an agenda by exploiting people's diversity at the cost of our willingness to rally around our commonality in support of foreign policy are, to my way of thinking, extremely un-American. Becoming indignant when people question your patriotism doesn't necessarily mean you are, in fact, patriotic any more than starting a bar fight because someone questions your manhood actually makes you a man. No one can claim to be patriotic, our words and actions claim it for us...or don't if that is the case.
Posted by: brainy435 | Jun 22, 2005 10:43:55 AM
Brainy:
We are a nation of diverse thoughts and opinions, true, but we have always rallied around our common beliefs in times of trouble. At least until the Vietnam war, which seems to be our problem. The real lesson of the Vietnam war is that America cannot achieve it's goals without everyone coming together. And people who think they can enact an agenda by exploiting people's diversity at the cost of our willingness to rally around our commonality in support of foreign policy are, to my way of thinking, extremely un-American.
That's utterly mad McCarythyite nonsense. The whole point of both Vietnam and Iraq is that they weren't America's goals. They were the goals of a segment of the American people that weren't shared in commmon.
Rallying around common beliefs is fine, but the predicate is that the beliefs are actually common, as opposed to the policy agenda of specific insular factions of the populace.
That's the difference between, say, World War II and Vietnam: in WWII, our leaders took us to war based on real reasons, and based on a real national consensus. In Vietnam, they took us to war based on lies like the gulf of tonkin and without any kind of consensus. The same is the case with Iraq.
You note that even now there's no serious opposition to the military action in Afghanistan, even as there is fierce opposition to Iraq? You wonder why that is?
Posted by: Paul Gowder | Jun 22, 2005 11:13:07 AM
Brainy:
Your claim that the US rallied around "American" principles until the Vietnam war, and then fractured only for the worse, is an absurd reading of history.
First, do you truly believe that Americans have been united on all important matters until the Vietnam War? Perhaps you've heard of the Civil War?
Perhaps you've heard of the deep fracture within the country on the question of whether to intervene in WWII (until the Japanese declared war on us)? Is it your contention that we were better off NOT engaging in WWII until the Japanese attacked because popular opinion was fractured?
Perhaps you've heard of early pre-Vietnam civil rights struggles?
Perhaps you've heard of the debates over federalism at the founding of our republic?
Perhaps you've heard about the deep divisions on whether to declare independence of Great Britain?
The list goes on and on. I've just hit the obvious highlights. The bottom line is that, for better or worse (I'd say "for better AND worse"), we have always had diversity of opinion and contentious political debates.
Further, even assuming that you are correct that uniformity is what we are seeking, you don't even begin to grapple with the more important question: "on what position shall we uniformly agree?" Guess what: the anti-Iraq war folks think that we should be uniformly against the Iraq war. The pro-Iraq war folks think that we should be uniformly in favor. All you've done is suggest that uniformity is good. Well, gee, you think that could be because you want everyone to uniformly agree with you?
Notice that my points cut in all directions. I'm not making a claim about the Iraq war here, whether it was wise or just. It just seems so obviously mistaken to claim that our historical strength was in our uniformity, and that we are now weak due to diversity of opinion.
Posted by: Hillel Levin | Jun 22, 2005 11:29:45 AM
Eugene, you make the excellent point that, in writing in the same breath, as it were, that the ICC STATUTE had adopted "beyond a reasonable doubt" as well as the Rwanda and Yugoslavia TRIBUNALS, I failed to distinguish between the significance of the former adoption in the Statute--which reflects the explict will of states parties--and the latter, which reflects the chosen practice of the tribunals but is not based on an explicit consensus of states parties to the instrument establishing the tribunal.
I suppose that the practice of tribunals, IF it were widespread enough, consistent enough, and clear enough, could be a basis for finding that "beyond a reasonable doubt" is "a general principle of law of civilized nations" (one of the sources of intl law set out in Art. 38 of the Statute of the ICJ, the locus classicus for the sources of international law.) But I think we both agree that what Byers seems to be doing is simply trying to bootstrap the practice in a few international tribunals into an obligation binding on all states. So your point is very well taken.
best,
Rob
Posted by: Rob Howse | Jun 22, 2005 11:48:18 AM
BTW: Why are we talking about INTERNATIONAL Law?
I thought Saddam was going to be tried IN IRAQ by his own people.
Looks to me like people trying to impose International Law have a problem.
Now if the US were trying him, International Law would have to come into it. Could that be WHY we aren't?
International Law is a Joke anyway. Until you have the ability to enforce a Law it is just a suggestion that people abide by as long as it isn't to much trouble. Of course the "Good Guys" obey the "International Law" but then they would anyway.
And if you think that the UN will enfore International Law, you need to do a sanity check.
Posted by: Dan Hamilton | Jun 22, 2005 12:12:42 PM
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