Tuesday, April 21, 2015

The Non-Aligned Movement and the Non-Proliferation Treaty: Collective Withdrawal?

 

At the Arms Control Law blog, Dan Joyner proposes “a walkout from the NPT [Treaty on the Non-Proliferation of Nuclear Weapons] en masse by the members of the NAM [Non-Aligned Movement]”:

[….] “The original idea of the NPT from the superpowers’ perspective, was to stop proliferation of nuclear weapons from spreading outside the five that had already tested at the time. This clearly didn’t work out well. At least five other states have manufactured nuclear weapons since 1968 (I’m counting South Africa), and four of these still have them. And I think one would be hard pressed to show that the NPT itself has actually proven to be a meaningful independent variable in stopping any country from developing nuclear weapons when they wanted to do so. This is going to be a difficult experiment without a control case, of course. But I think the ‘proliferation success stories’ that are usually pointed to, including South Africa and Brazil, would probably have happened in much the same way they did without the NPT in place, but rather simply with an international norm having been expressed in General Assembly resolutions and elsewhere against nuclear weapons proliferation. These success stories, as well as the failure stories (e.g. North Korea), have occurred mostly due to factors outside of any direct influence of the NPT itself. They have occurred because of the particular political, historical, and economic circumstances of the state(s) involved, combined with a general international norm against nuclear proliferation, which as I said earlier could have been accomplished without the conclusion of the NPT. [….]

I would say the current climate of international trade in nuclear materials and technologies doesn’t betray any sort of real meaningful effect of the Article IV right and obligation on supplier states. Nuclear supplier states trade with whomever they want to trade.  And if they don’t want to trade with a state, or allow their private parties to trade with that state, they simply won’t, with very little regard for the Article IV(2) obligation that they are presumably under. Trade in nuclear materials and technologies is, again, all about politics and economics. And again, I think that in the absence of the NPT, the landscape of international trade in nuclear technologies would look very much the same as it does now.

And what about Article VI? Well I think it’s pretty clear that no nuclear weapons possessing state has ever been significantly influenced by the obligation in Article VI to move towards disarmament in good faith [rather, they’re engaged in modernizing their nuclear arsenals]. After more than 45 years the nuclear weapons states do just exactly what they want to do with regard to nuclear disarmament [that is, engaging in what has been termed ‘symbolic reductions’] and no more. All of the changes that have been made would, I think, have been made in the absence of the NPT. The Cold War ramp up, the efforts of arms control during and after it, cuts over the past 25 years – none of these would have been any different had the NPT not been in place I suspect.

So if the NPT has failed in the ways I have described, why does every diplomat, from Russia to Nigeria, still pay lip service to the NPT as the cornerstone of the nonproliferation regime, and speak of it in hallowed terms? For the nuclear weapons states I think it’s clear why. They still benefit from having a treaty that allows them and no one else to have nuclear weapons, and that doesn’t seriously constrain them in any way. A treaty they can use as a normative cudgel against their enemies, but which carries very few costs for them and their friends.

But what about for developing non-nuclear weapon states? What do they get out of NPT membership? Again, the concessions they wanted out of the NPT have not been granted to them in the systematic and meaningful way they were promised in the NPT. They get nuclear supplies if and when they are on good enough political terms with supplier states. If not, they don’t. And 45+ years of waiting for the nuclear weapon states to disarm has yielded not one disarmed state among the NWS – and in fact it has produced a net addition of four more nuclear armed states outside of the treaty.

And yet in return for these promised but undelivered benefits, NNWS continue to submit to IAEA safeguards on their nuclear facilities, and to hypocritical critiques by nuclear weapon states of their failure to live up to their NPT and IAEA commitments. So I ask again, what are they getting out of NPT membership?” [….]

My bibliography, Nuclear Weapons: Development, Detonation, Deterrence, and Disarmament, is here

[In photo, from left to right: Jawaharlal Nehru of India, Kwama Nkrumah of Ghana, Gamal Abdel Nasser Hussein of Egypt, Sukharno of Indonesia, and Josip Broz Tito of Yugoslavia.]

Coin, Currency, Capitalism, and Contract

The Jurisdynamics Network is pleased to have received two new books from Oxford University Press. As it happens, both authors teach law at Harvard.

Christine Desan, Making Money: Coin, Currency, and the Coming of Capitalism traces the history of coin and currency from its origins to its place in the contemporary world's economic architecture. From Oxford's cover notes:

Making MoneyMoney travels the modern world in disguise. It looks like a convention of human exchange — a commodity like gold or a medium like language. But its history reveals that money is a very different matter. It is an institution engineered by political communities to mark and mobilize resources. As societies change the way they create money, they change the market itself — along with the rules that structure it, the politics and ideas that shape it, and the benefits that flow from it.

One particularly dramatic transformation in money's design brought capitalism to England. For centuries, the English government monopolized money's creation. The Crown sold people coin for a fee in exchange for silver and gold. "Commodity money" was a fragile and difficult medium; the first half of the book considers the kinds of exchange and credit it invited, as well as the politics it engendered. Capitalism arrived when the English reinvented money at the end of the 17th century. When it established the Bank of England, the government shared its monopoly over money creation for the first time with private investors, institutionalizing their self-interest as the pump that would produce the money supply. The second half of the book considers the monetary revolution that brought unprecedented possibilities and problems. The invention of circulating public debt, the breakdown of commodity money, the rise of commercial bank currency, and the coalescence of ideological commitments that came to be identified with the Gold Standard - all contributed to the abundant and unstable medium that is modern money. All flowed as well from a collision between the individual incentives and public claims at the heart of the system. The drama had constitutional dimension: money, as its history reveals, is a mode of governance in a material world. That character undermines claims in economics about money's neutrality. The monetary design innovated in England would later spread, producing the global architecture of modern money.

Meanwhile, Oxford has also issued a new edition of a classic first published in 1982, Charles Fried, Contract as Promise: A Theory of Contractual Obligation (2d ed. 2015). Once again, an adaptation of Oxford's cover notes follows:

Fried, Contract as PromiseContract as Promise is a study of the philosophical foundations of contract law in which Professor Fried effectively answers some of the most common assumptions about contract law and strongly proposes a moral basis for it while defending the classical theory of contract. This book provides two purposes regarding the complex legal institution of the contract. The first is the theoretical purpose to demonstrate how contract law can be traced to and is determined by a small number of basic moral principles. At the theory level the author shows that contract law does have an underlying, and unifying structure. The second is a pedagogic purpose to provide for students the underlying structure of contract law. At this level of doctrinal exposition the author shows that structure can be referred to moral principles. Together the two purposes support each other in an effective and comprehensive study of contract law.

The second edition retains the original text. In addition to a new preface, the second edition includes a substantial new essay entitled Contract as Promise in the Light of Subsequent Scholarship — Especially Law and Economics, which serves as a retrospective of the last three decades and a response to present and future work in the field.

The Jurisdynamics Network appreciates Oxford's generosity and is pleased to inform readers of Ratio Juris of these new titles.

Thursday, April 09, 2015

Making Sense of Human Dignity

 Charles White, “Oh Mary, Don’t You Weep,” 1956

“The roots of the cosmopolitanism I am defending are liberal: and they are responsive to liberalism’s insistence on human dignity. It has never been easy to say what this entails, and indeed, it seems to me that exploring what it might mean is liberalism’s historic project.”—Kwame Anthony Appiah, The Ethics of Identity (Princeton University Press, 2005): 267. 

Whether or not the notion that the international legal human rights system is grounded in and serves to affirm the inherent dignity of humans is a central feature of the system, it is surely at least a desideratum for a justification of the system that it can make sense of this notion given its prominence. [….] [T]he relevant notion of dignity can be understood to include two aspects. First, there is the idea that certain conditions of living are beneath the dignity of the sort of being that humans are. [….] Let us call this first aspect of dignity the well-being threshold aspect.

The second aspect of dignity is the interpersonal comparative aspect, the idea that treating people with dignity also requires a public affirmation of the basic equal status of all and, again, that if they are not treated in this way they suffer an injury or wrong. [….] The well-being threshold aspect of dignity concerns whether one is doing well enough for a being of the sort one is; it makes no reference to how one is treated vis-à-vis others. The interpersonal comparative aspect has to do with whether one is being treated as an inferior relative to other people. The point is that one’s dignity can be respected in the well-being threshold aspect and yet may be compromised in the interpersonal comparative aspect.”—Allen Buchanan, The Heart of Human Rights (Oxford University Press, 2013): 99-100.

Recommended Reading: 
  • Capps, Patrick. Human Dignity and the Foundations of International Law. Portland, OR: Hart Publishing, 2010.  
  • Daly, Erin. Dignity Rights: Courts, Constitutions, and the Worth of the Human Person. Philadelphia, PA: University of Pennsylvania Press, 2013. 
  • Düwell, Marcus, et al., eds. The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives. Cambridge, UK: Cambridge University Press, 2014. 
  • Kateb, George. Human Dignity. Cambridge, MA: Belknap Press of Harvard University Press, 2011. 
  • Luban, David J. “Human Rights Pragmatism and Human Dignity,” (December 28, 2013), forthcoming in Philosophical Foundations of Human Rights (Massimo Renzo, Rowan Cruft, and Matthew Liao, eds., OUP). At SSRN: http://ssrn.com/abstract=2394233 
  • McCrudden, Christopher, ed. Understanding Human Dignity. Oxford, UK: Oxford University Press, 2014.
  • Rosen, Michael. Dignity: Its History and Meaning. Cambridge, MA: Harvard University Press, 2012.  
  • Waldron, Jeremy (et al.) Dignity, Rank and Rights (Berkeley Tanner Lectures, 2009). New York: Oxford University Press, 2015.

Sunday, April 05, 2015

More Books on Liberalism

I have a guest post up at the U.S. Intellectual History blog with a short bibliography on Liberalism (introduced with an apologia). I want to thank L.D. Burnett for prompting me to put together this list and the invitation to post it at the blog of the Society for U.S. Intellectual History.

Tuesday, March 31, 2015

Toward an Understanding (indeed, appreciation) of Liberalism as a Political Philosophy (or philosophies)

Imagine you’re assigned the task of coming up with a list of books—say, for a graduate level seminar— by way of covering or at least suggesting the breadth and depth of both classical and contemporary Liberalism (as a political philosophy or political philosophies). Your list is limited to seven titles. What seven books would you recommend? Your readers will be more or less familiar with the canonical list of original works in the Liberal tradition. Here is my perhaps idiosyncratic compilation:

  • Appiah, Kwame Anthony. The Ethics of Identity. Princeton University Press, 2005.
  •  Gaus, Gerald F. Contemporary Theories of Liberalism: Public Reason as a Post-Enlightenment Project. Sage Publications, 2003.  
  • Goodin, Robert E. Utilitarianism as a Public Philosophy. Cambridge University Press, 1995.
  •  Holmes, Stephen. Passions & Constraint: On the Theory of Liberal Democracy. University of Chicago Press, 1995.  
  • Raz, Joseph. The Morality of Freedom. Oxford University Press, 1986.  
  • Ryan, Alan. The Making of Modern Liberalism. Princeton University Press, 2012. 
  •  Shapiro, Ian. The Evolution of Rights in Liberal Theory. Cambridge University Press, 1986.

Wednesday, March 25, 2015

Chibli Mallat, Philosophy of Nonviolence

This book recently arrived in the Jurisdynamics Network's mailbox —

Chibli Mallat, Philosophy of Nonviolence: Revolution, Constitutionalism, and Justice Beyond the Middle East, available at http://bit.ly/PhilosophyNonviolence. The following description is adapted from Oxford University Press's cover notes to the book:

In the so-called "Arab Spring" of 2011, people throughout the Middle East peacefully protested long entrenched dictatorships. In a matter of weeks, nonviolent marches deposed the dictators of Tunisia, Egypt, and Yemen. Philosophy of Nonviolence ponders whether the Arab Spring represented a fundamental break in world history. This break, argues Chibli Mallot, is animated by nonviolence as the new spirit of the philosophy of history. In this evaluation of an ongoing political movement, Professor Mallat engages a wide range of abstract and philosophical arguments, while substantiating those arguments in the historical context of the ongoing Middle East revolution.

Thursday, March 19, 2015

Toward a Developmental Finance State

Robert C. Hockett and Saule T. Omarova have posted a draft of their important—hence highly recommended—new article, “Public Actors in Private Markets: Toward a Developmental Finance State,” at SSRN, available here. The abstract:

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of fueling development; and (3) that the state, as the most potent financial actor, both must and often does pursue its developmental goals by acting endogenously – i.e., as a direct participant in private financial markets. In addition to articulating and elaborating the concept of the developmental finance state, this Article identifies and analyzes the principal modalities through which the modern American developmental finance state operates today. Finally, the Article proposes three broad strategic extensions of the existing modalities, with a view to enabling the emergence of a more ambitiously proactive and effective developmental finance state – and thus rediscovering a truly public-minded finance.

As Hockett and Omarova note,

“our polity never has been strictly ‘command-and-control’ or ‘hands-off’ in relation to our economy. Rather, we have always sought means of proactively fostering and furthering economic development and growth, and have done so through government instrumentalities that act in markets as much as they act on them. Our government is more than merely a market overseer and regulator – it is also a direct market participant, acting not only to correct market failures or to provide vital public goods but also to create, amplify, and guide private markets in ways that enhance these markets’ potential to serve important long-term public interests.”

Intriguingly, they characterize the rhetorical strategy of the argument as one that

“identifies, analyzes, and builds upon the distinctly American mode of mixing polity and economy, in hopes of recovering a policy approach that the nation once had and could use again now, after a major financial crisis. The tradition we seek to recover traces its roots directly to ideas originally formulated by the country’s first Treasury Secretary, Alexander Hamilton. We refer to that tradition under the conceptual heading of the ‘developmental finance state.’”

However refreshing the invocation of Hamilton, I’m not sure how significant or even true it is to view this as a “distinctly American mode of mixing polity and economy,” for in the comparative terms of welfare capitalism or capitalist democracy (keeping in mind that such regimes ‘represent different ways of organizing not only the transfer sector, represented by social welfare policy, but also the productive sector of the capitalist economy’), this seems merely to bring the conventional model of the “liberal welfare regime,” exemplified by the United States, closer to a corporatist or even social-democratic model, an alternative characterization that may not prove as rhetorically pliable to a fair- or open-minded assessment of their proposal. In any case, I believe a move in this direction would portend progress on several fronts, not the least of which would involve movement toward satisfying moral and political values that have been used as criteria for assessing the “real worlds of welfare capitalism,” namely, (1) efficiency (of various economic kinds), (2) reduction of poverty, (3) promotion of equality, (4) promotion of social integration and avoidance of social exclusion, (5) promotion of social stability, and (6) promotion of individual autonomy. On this, please see Robert E. Goodin, et al., eds. The Real Worlds of Welfare Capitalism (Cambridge University Press, 1999).

Here is a clear and compelling conceptual outline and working definition of this “developmental finance state:”

“Three propositions form the basis of our argument. First of all, we assert the utmost significance of pursuing socio-economic development as a continuous national project that does not end once a country is sufficiently industrialized and modernized to be considered a ‘developed’ economy. Development is not a particular end-of-history state; it is an inherently dynamic phenomenon. Development is a conscious pursuit of qualitative (not merely quantitative) growth and adaptation to new environments; it is an evolutionary process of national self-definition and reinvention. In today’s world, any ‘developed’ nation that does not strive to develop risks losing its global competitive edge. In this sense, the United States is a developing country, whether or not Americans realize or admit it. We seek to re-introduce this critically important normative concept into the public discourse.

Secondly, we view this conscious pursuit of national development as a fundamentally public-private enterprise. As the ultimate public, collective actor, the federal government is well-positioned to formulate a national developmental strategy. But its successful implementation would require the government to utilize, deliberately and systematically, its ability to participate directly in private market transactions as an endogenous, rather than merely exogenous, actor. Via this explicitly participatory market-actor modality, the government can lead the market from within – thus becoming an integral part of the private market, altering some of the market’s potentially undesirable internal dynamics, and empowering both the market and the nation.

Finally, we deliberately focus on the use of financial techniques and financial instruments as primary methods of the government’s pursuit of developmental goals in its role as a market actor. Finance represents both the lifeblood of the economy and ‘the nerves of the state’ – it is the principal link connecting the state and the market. Finance is a universal productive input; it can be fairly easily moved and re-deployed for a multitude of purposes.

Moreover, the increasing financialization of the American economy in recent decades makes finance a particularly potent lever of economic and political power. Therefore, we view financial markets as the strategic arena in which America’s future developmental trajectory will be decided. These three elements, inspired by and building upon Hamiltonian ideas, define the contours of what we tentatively call here a developmental finance state model. A ‘developmental finance state’ can be defined as a state that pursues specific developmental goals through direct participation in private financial markets as an endogenous market actor.”

I hope this proves sufficient enticement for you to read the article. 

Tuesday, March 17, 2015

California Supreme Court grants posthumous law license to Hong Yen Chang

[Edited]

“A descendant of the wife of Hong Yen Chang was researching a book about an ancestor when she learned that her great-grand-uncle Chang had received a law degree but never practiced in California. She contacted another relative, who spoke to a historian at the State Bar of California. The California Supreme Court had denied Chang a law license because he was Chinese.

‘The family was troubled that it happened, but we didn't ever imagine there was anything we could do about it,’ said Rachelle Chong, a prominent lawyer and Chang’s great-grand-niece. Twenty five years later, she received a note from a UC Davis law professor. His students were going to try to overturn the decision that denied Chang admission to the California bar.

That reversal finally came Monday, when the California Supreme Court closed a chapter in the state’s history of anti-Chinese laws and decided unanimously to give Chang a posthumous law license. In a nine-page ruling, the state’s highest court repudiated its 1890 decision denying Chang a license because ‘persons of the Mongolian race’ were not entitled to citizenship. ‘More than a century later, the legal and policy underpinnings of our 1890 decision have been discredited,’ the court said in Monday’s unsigned decision. ‘Even if we cannot undo history,’ the ruling said,’ we can acknowledge it and, in so doing, accord a full measure of recognition to Chang’s pathbreaking efforts to become the first lawyer of Chinese descent in the United States.’

The project to award Chang a license posthumously began in 2011 with UC Davis law professor Gabriel Chin, who specializes in the law and race, immigration and criminal law. The 1890 California precedent has long been ‘notorious among Asian American legal scholars,’ Chin said. ‘It is a particularly bitter and shocking decision.’

Chin asked his students try to find a way to address that ignominious ruling. They researched the legal issues and the history and filed a petition with the state bar, which oversees lawyer licensing. The bar was sympathetic but did not have the authority to admit Chang posthumously.

The students bided their time.

When the California Supreme Court decided last year to give a law license to a Mexican immigrant who had no green card, the students’ confidence grew. They also were encouraged by the makeup of the top court. Three of the justices, including the chief justice, are Asian American. One is Latino, another is African American and two are white women. ‘I believed we had a really strong case,’ said Steven Vong, co-president of UC Davis Asian Pacific American Law Students Assn., which brought the case.

The law firm of Munger, Tolles & Olson offered to represent the students for free. Jeffrey Bleich and two other San Francisco-based lawyers with the firm filed a motion with the court late last year. As a former president of the state bar, Bleich said he was particularly offended by the treatment of Chang. ‘I thought it was important to start addressing a stain on California’s judicial history and make amends to the Chinese people,’ he said.

The 1890 California ruling had denied Chang a law license under the federal Chinese Exclusion Act, which Congress passed at California’s urging and which the U.S. Supreme Court upheld. It barred citizenship for the ‘Mongolian race’ and imposed a 10-year ban on Chinese immigration.
Because citizenship or eligibility for citizenship was required for a California law license, Chang had to be excluded, the court said in its infamous ruling. ‘Courts are expressly forbidden to issue certificates of naturalization to any native of China,’ the court ruled.” [….]

The entire article from the Los Angeles Times is here. 

In an earlier post on this case from last year I discussed posthumous justice for apartheid-era lawyers in South Africa:

[....] Following the 1994 elections in South Africa, a “Restoration of Enrolment of Certain Legal Practitioners Bill” had been in the works, aimed at figures like Bram Fischer, Shun Chetty and Lewis Baker who were disbarred or struck off the roll of attorneys for various reasons that arose out of their activist political opposition to apartheid. On October 28, 2002, the Reinstatement of  Enrolment of Certain Deceased Legal Practitioners Act was passed into law by the Parliament and later signed by the President. The Bill reads as follows:
*   *   * To provide for the reinstatement of the enrolment of certain deceased legal practitioners who were struck off the roll of advocates or attorneys as a result of their opposition to the previous political dispensation of apartheid or their assistance to persons who were opposed to the said apartheid dispensation; and to provide for matters connected therewith. [....]

Monday, March 16, 2015

The State & Capitalist Science and Technology

“The state, largely in the form of the federal government, has had an important background role in providing the environment in which the biotechnology industry could be created. Numerous state interventions made the formation of the biotechnology industry possible. Federal government funding of NIH [National Institutes of Health] and NSF [National Science Foundation] research built the basic scientific knowledge from which commercial biotechnology developed. The entire history of molecular biology is that of federal funding of ‘basic’ research that was meant to create the technical base necessary to understand and cure diseases.” Martin Kenney, Bio-technology: The University-Industrial Complex (Yale University Press, 1986): 241.
“It’s no surprise that Apple’s tremendously successful line of products—iPads, iPhones, and iPods—incorporate twelve key innovations. All twelve (central processing units, dynamic random-access memory, hard-drive disks, liquid-crystal displays, batteries, digital single processing, the Internet, the HTTP and HTML languages, cellular networks, GPS system, and voice-user AI programs) were developed by publicly funded research and development projects.” – From Tony Smith’s article, “Red Innovation,” in the latest issue of Jacobin (Spring 2015). Smith, a professor of philosophy at Iowa State University, is the author of, among other books, Technology and Capital in the Age of Lean Production: A Marxian Critique of the “New Economy” (SUNY Press, 2000).

Locke (John, not Alain LeRoy) & Slavery

“Two facts are clear: (1) There is nothing in [seventeenth-century English philosopher John] Locke’s theory that lends an iota of legitimacy to the contemporary institution of slavery in the Americas; and (2) African slavery in the Americas was a reality and Locke himself was implicated with it… [i.e., he ‘invested money personally both in plantation enterprises and in an enterprise (the Royal African Company) that had a monopoly in the slave trade’].”—Waldron, Jeremy. God, Locke, and Equality: Christian Foundations of Locke’s Political Thought (Cambridge University Press, 2002): 206.

Tuesday, March 10, 2015

Unreasonable if not Irrational Restrictions on Speech during Incarceration

 Pentonville Prison, London (1965)
“Some of the greatest works of literature and social commentary—everything from Don Quixote, to O. Henry’s stories, to Martin Luther King Jr’s, Letter from a Birmingham Jail—were written in whole or in part while their authors were incarcerated. In many prisons and jails today, however, speech is burdened by regulations that make little sense. Examples include the following:

  • A federal prison employee prevented a prisoner in Colorado from receiving books by President Obama, citing national security concerns.
  • A Wisconsin prison banned all materials related to the fantasy role play game Dungeons & Dragons, concerned that the game would promote gang activity.
  • A jail in South Carolina prohibited all publications with staples on the ground that staples could be used in makeshift tattoo guns. At the same time, the jail allowed prisoners to purchase legal pads that contained staples from the jail’s commissary.
  • Jail employees in Virginia used scissors or a hobby knife to cut out biblical passages from letters a mother wrote to her incarcerated son. The letters given to the son had holes where the biblical passages had been.
  • In Wisconsin, a prison forbade a prisoner from ordering the Physician’s Desk Reference.
  • Some jails ban all newspaper and magazines. Others prohibit letters sent to prisoners, and allow only postcards.
  • A purge of books in religious libraries maintained by federal prisons resulted in works by Maimonides, the medieval Jewish philosopher, being pulled from the shelves.
  • A prison allowed magazines such as Playboy and Maxim, but prohibited works by John Updike as salacious.”

I can’t speak with authority to the proposed solutions, but for the rest of this important article, please see David M. Shapiro, “Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny” (February 20, 2015). Northwestern Public Law Research Paper No. 15-08.

See too: (1) In a different vein, see this guest post from several years ago at The Faculty Lounge: “The Bard of Avon in Prison.” (2) The Atlantic: “Why Shakespeare Belongs In Prison. (3) From Louisville, Kentucky, “Shakespeare Behind Bars.” (4) My bibliography on “punishment and prison.” 

Tuesday, March 03, 2015

Yes, indeed: Bush White House and DOJ Officials Conspired to Approve Torture

An alleged CIA prison near Kabul, Afghanistan: Trevor Paglen via Wikimedia Commons.

From David Cole at Just Security
[….] The overall picture that the documents paint is not of a rogue agency, but of a rogue administration. Yes, the CIA affirmatively proposed to use patently illegal tactics — waterboarding, sleep deprivation, physical assault, and painful stress positions. But at every turn, senior officials and lawyers in the White House and the Department of Justice reassured the agency that it could — and should — go forward. The documents reveal an agency that is extremely sensitive to whether the program is legally authorized and approved by higher-ups — no doubt because it understood that what it was doing was at a minimum controversial, and very possibly illegal. The documents show that the CIA repeatedly raised questions along these lines, and even suspended the program when the OLC was temporarily unwilling to say, without further review, whether the techniques would ‘shock the conscience’ in violation of the Fifth Amendment. But at every point where the White House and the DOJ could have and should have said no to tactics that were patently illegal, they said yes.

From the start, the administration crafted its policies to give the CIA leeway. In February 2002, for example, even before the CIA detainee and interrogation program had formally begun, President Bush issued a memo declaring that while the Geneva Conventions do not apply to al Qaeda and Taliban detainees, US Armed Forces would nonetheless as a matter of policy treat detainees humanely. At the time, critics, myself included, focused on Bush’s caveat that ‘military necessity’ might justify inhumane treatment. But one of the documents reveals that the administration also intentionally drafted the memo to exclude the CIA. (To his credit, Marty Lederman may have been the first to identify the significance of the focus on the Armed Forces, but that was not until many years later in January 2005.) A declassified February 2003 memo drafted by CIA General Counsel Scott Muller reports that Justice Department lawyer John Yoo told Muller in January 2003 ‘that the language of the [February 2002] memorandum had been deliberately limited to be binding only on ‘the Armed Forces’ which did not include the CIA.’ Yoo also confirmed that in drafting his memo authorizing the CIA program, he had considered the intent and effect of the February 2002 memo, and concluded that it posed no bar.

The declassified documents also reveal that Condoleezza Rice, National Security Adviser, and John Bellinger, her lawyer, both of whom many years later sought to restrict use of the CIA’s techniques, were personally and intimately involved in the initial approval of the tactics. In April 2002, shortly after Abu Zubaydah was captured, Bellinger arranged the first meeting on the subject of enhanced interrogation, and told OLC that the State Department should be kept out of the loop. His boss, Rice, gave policy approval to the tactics in July 2002, pending legal sign-off by the Department of Justice, which came one week later, in the now infamous August 1, 2002 memo drafted by Yoo and Bybee. The documents do not reveal what Rice was told by Bellinger, her counsel, about the legality of approving waterboarding, extended sleep deprivation, and the like, but there is no sign that he told her the tactics were illegal. If he had done so, it would have been very difficult for her to approve the tactics in the face of such advice.

In December 2002, Bellinger twice confirmed to CIA General Counsel Muller that ‘use of the type of techniques authorized by the Attorney General had been extensively discussed and was consistent with the President’s …. February Memo.’ On January 13, 2003, in a meeting with Muller, White House Counsel Alberto Gonzales, Counsel to the Vice-President David Addington, Yoo, and Defense Department General Counsel Jim Haynes, Gonzales and Addington also reaffirmed that the February 2002 memo about humane treatment did not apply to the CIA. And three days later, in a meeting with Rice, Secretary of Defense Dnnald Rumsfeld, Secretary of State Colin Powell, Vice-President Dick Cheney, and Haynes, Muller yet again raised the possible inconsistency between ‘what the CIA was authorized to do and what at least some in the international community might expect in light of the Administration’s public statements about ‘humane treatment’ of detainees.’ According to Muller, ‘Everyone in the room evinced understanding of the issue. CIA’s past and ongoing use of enhanced techniques was reaffirmed…. Rice clearly distinguished between the issues to be addressed by the military and CIA.’

In July 2003, after Jim Haynes wrote a letter to Sen. Patrick Leahy (D-Vt.) contending that US policy “is to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with [the Constitution],” the CIA again raised concerns about whether the administration’s public commitment to humane treatment could be squared with its program – understandably, as its tactics were the very opposite of humane, and would plainly be unconstitutional if applied to anyone protected by the Constitution. Another declassified document shows that CIA Director George Tenet sent a memo to Rice requesting express reaffirmation of the CIA’s program.  Later that month, Tenet met with, among others Attorney General Ashcroft, DOJ lawyer Patrick Philbin, Rice, Gonzales, Bellinger, and Cheney to review the program. Ashcroft, backed by a full explication by Philbin, “forcefully reiterated the view of the Department of Justice that the techniques being employed by the CIA were and remain lawful and do not violate the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment.” When Ashcroft was told that Khaled Sheikh Mohammed had been waterboarded 119 times, Ashcroft replied “that he was fully aware of the facts and that CIA was ‘well within’ the scope of the [OLC] opinion.” Cheney, Rice, and Ashcroft all confirmed that the CIA was “executing Administration policy.”

After the Abu Ghraib photos were released in April 2004, the CIA again sought reaffirmation of its program. In fact, in May 2004, Tenet suspended the interrogation program, and expressly requested the NSC Principals and the Attorney General to approve of the CIA’s tactics yet again. The next month, the Washington Post published the August 2002 OLC memo, the first written approval of the torture tactics, which until then had remained a secret. As soon as that memo became public, then-OLC head Jack Goldsmith withdrew it; what everyone went along with in private was not sustainable once exposed to the light of day. Yet at a meeting in July 2004 with Rice, Ashcroft, Gonzales, Bellinger, and Deputy Attorney General James Comey, Rice said that the CIA’s techniques were in her view humane, and Ashcroft reaffirmed their legality (apart from waterboarding, which the DOJ was then reevaluating). The next month, Daniel Levin, the new head of the OLC, authorized the use of the waterboard for a particular detainee (although the CIA did not ultimately use the waterboard in that instance).

In December 2004, as has been previously reported, Levin issued a new memo on interrogation techniques, to replace the withdrawn August 1, 2002 memo. Its rhetoric was designed to sound more reasonable than the initial memo, but it included a critical footnote, stating that the OLC did not believe any of its conclusions regarding previously approved interrogation techniques would be different under the new standards. In other words, nothing material had changed. The OLC was still saying yes. About six months later, still another OLC head, Stephen Bradbury, wrote two memos opining that none of the CIA’s techniques were cruel, inhuman, or degrading, nor would they violate the Constitution if employed against detainees in the United States.

In short, the declassified documents reveal that the CIA was very nervous about the legal authority for its interrogation program – even after DOJ and White House officials had repeatedly given the program their blessings. It is almost as if the CIA had a guilty conscience; it knew what it was doing was wrong, so it had to be repeatedly reassured that it was okay. Above all, it seems, the agency wanted to make sure it had legal cover.

But the documents also underscore an equally important point, one not sufficiently emphasized by the SSCI Report and the coverage of it: the CIA was only one part of this conspiracy to commit war crimes. The scheme had the participation and express or tacit assent of many others, from President Bush and Vice-President Cheney and the NSC Principals on down to Justice Department lawyers John Yoo, Jay Bybee, Patrick Philbin, Daniel Levin, Stephen Bradbury, DOD General Counsel Jim Haynes, Counsel to the Vice-President David Addington, and Counsel to the National Security Adviser John Bellinger. Not one of these people said no. Had any one of them done so, the program might well have been stopped in its tracks. Yet most of them have gone on to lucrative, prestigious, and/or powerful positions in private practice, the academy, or other government positions. Where is the accountability for their part in the CIA’s grievous wrong. 

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And here’s a link to my bibliography, Torture: Moral, Legal, and Political Dimensions.