The National Security State & the Presidency

For your consideration, three recent news stories and related readings:

1. “Obama Backtracking on Detainee Rights, Critics Say:”

The newest option for detaining terrorism suspects—an Afghan prison that serves the same purpose as the lockup in Guantanamo Bay, Cuba—suggests that President Obama's policies are becoming more like those of his predecessor, George W. Bush, in the view of human rights groups and legal experts.

Obama began his presidency vowing to close Guantanamo, end CIA detention practices and transform the post-9/11 system created by Bush. But the administration gradually has backtracked, and is now revisiting some of the practices in use under Bush: military tribunals, detention without trials and overseas prisons.

Human rights activists have objected to what they see as a trend in the administration toward favoring long-term detention of terrorism suspects and military commission proceedings rather than public court trials. In the latest possible shift, administration officials said last week that they may use a prison at the Bagram air base in Afghanistan for long-term detainees captured elsewhere. [….]

2. From IntLawGrrls: Harold Koh on Targeted Killing:

As detailed via quotes in the post below, the Legal Adviser to the U.S. Department of State, Harold Hongju Koh, yesterday outlined a multi-pronged defense of the Obama Administration’s use of drones for targeted killings of presumed al Qaeda operatives. Among the statements made during Koh’s keynote speech to the American Society of International Law was this:

[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

For some prominent views analyzing the bulk of pertinent legal questions here, please see the following, several of which lack the confidence and certainty which marks, in turn, Koh’s reasoning and conclusion:

Akande, Dapo. “Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities,” EJIL Analysis, EJIL: Talk!/Blog of the European Journal of International Law: http://www.ejiltalk.org/clearing-the-fog-of-war-the-icrcs-interpretive-guidance-on-direct-participation-in-hostilities/

Kaplan, Eben. “Targeted Killings,” Backgrounder (March 2, 2006) Council on Foreign Relations: http://www.cfr.org/publication/9627/

Melzer, Nils. Targeted Killing in International Law. New York: Oxford University Press, 2008.

O'Connell, Mary Ellen. “Unlawful Killing with Combat Drones: A Case Study of Pakistan,” 2004-2009 (November 1, 2009). Shooting to Kill: The Law Governing Lethal Force in Context, Simon Bronitt, ed., Forthcoming. Notre Dame Legal Studies Paper No. 09-43. SSRN: http://ssrn.com/abstract=1501144

“On the Legal Aspects of ‘Targeted Killings:’ Review of the Judgment of the Israeli Supreme Cout,” Policy Brief, May 2007, Program on Humanitarian Policy and Conflict Research, Harvard University: http://opt.ihlresearch.org/index.cfm?fuseaction=Page.viewPage&pageId=707

Patel, Mayur. “Israel’s Targeted Killings of Hamas Leaders,” (May 2004), The American Society of International Law/ASIL Insights: http://www.asil.org/insigh133.cfm

Paust, Jordan J. “Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan” (December 8, 2009). Journal of Transnational Law & Policy, Vol. 19, 2010, University of Houston Law Center No. 2009-A-36. SSRN: http://ssrn.com/abstract=1520717

Paust, Jordan J. (et al.), “The United States’ Use of Drones in Pakistan,” (Sept. 29, 2009) EJIL Analysis, EJIL: Talk!/Blog of the European Journal of International Law: http://www.ejiltalk.org/the-united-states-use-of-drones-in-pakistan/

3. Glenn Greenwald at Salon: “When Presidential Sermons Collide”:

President Obama gave an interview earlier this week to an Indonesian television station in lieu of the scheduled trip to that country which was canceled due to the health care vote. In 2008, Indonesia empowered a national commission to investigate human rights abuses committed by its own government under the U.S.-backed Suharto regime “in an attempt to finally bring the perpetrators to justice,” and Obama was asked in this interview: “Is your administration satisfied with the resolution of the past human rights abuses in Indonesia?” He replied:

"We have to acknowledge that those past human rights abuses existed. We can’t go forward without looking backwards . . . . "

When asked last year about whether the United States should use similar tribunals to investigate its own human rights abuses, as well his view of other countries’ efforts (such as Spain) to investigate those abuses, Obama said:

"I’m a strong believer that it’s important to look forward and not backwards, and to remind ourselves that we do have very real security threats out there."

That “Look-Forward/Not-Backward” formulation is one which Obama and his top aides have frequently repeated to argue against any investigations in the U.S. Why, as Obama sermonized, must Indonesians first look backward before being able to move forward, whereas exactly the opposite is true of Americans? If a leader is going to demand that other countries adhere to the very “principles” which he insists on violating himself, it’s probably best not to use antithetical clichés when issuing decrees, for the sake of appearances if nothing else.

The New Yorker’s Jane Mayer—in the last paragraph of her new article documenting the multiple lies told by former Bush speechwriter and current Washington Post columnist Marc Thiessen in his pro-torture book—offered the best summary yet as to why Obama’s “Look Forward/Not Backward” mentality is so destructive:

The publication of “Courting Disaster” suggests that Obama’s avowed determination “to look forward, not back” has laid the recent past open to partisan reinterpretation. By holding no one accountable for past abuse, and by convening no commission on what did and didn’t protect the country, President Obama has left the telling of this dark chapter in American history to those who most want to whitewash it.

Nothing enables the glorification of crimes, and nothing ensures their future re-occurrence, more than shielding the criminals from all accountability. It’s nice that Barack Obama is willing to dispense that lecture to other countries, but it’s not so nice that he does exactly the opposite in his own.

Do the above count as evidence for the strength of Garry Wills’s argument that follows?

The Entangled Giant
The York Review of Books, Vol. 56, No. 15 (October 8, 2009)

George W. Bush left the White House unpopular and disgraced. His successor promised change, and it was clear where change was needed. Illegal acts should cease—torture and indefinite detention, denial of habeas corpus and legal representation, unilateral canceling of treaties, defiance of Congress and the Constitution, nullification of laws by signing statements. Powers attributed to the president by the theory of the unitary executive should not be exercised. Judges who are willing to give the president any power he asks for should not be confirmed.

But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the “war on terror”—all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order.

The truth of this was borne out in the early days of Barack Obama’s presidency. At his confirmation hearing to be head of the CIA, Leon Panetta said that “extraordinary rendition”—the practice of sending prisoners to foreign countries—was a tool he meant to retain. Obama’s nominee for solicitor general, Elena Kagan, told Congress that she agreed with John Yoo’s claim that a terrorist captured anywhere should be subject to “battlefield law.” On the first opportunity to abort trial proceedings by invoking “state secrets”—the policy based on the faulty Reynolds case—Obama’s attorney general, Eric Holder, did so. Obama refused to release photographs of “enhanced interrogation.” The CIA had earlier (illegally) destroyed ninety-two videotapes of such interrogations—and Obama refused to release documents describing the tapes.

The President said that past official crimes would not be investigated—certainly not for prosecution, and not even by an impartial “truth commission” just trying to establish a record. He said, on the contrary, that detainees might be tried in “military tribunals.” When the British government, trying a terrorist suspect, decided to use some American documents shared with the British government, Obama's attorney general pressured it not to do so. Most important, perhaps, was the new president's desire to end the nation-building in Iraq while substituting a long-term nation-building effort in Afghanistan, run by a government corrupted by drug trafficking and not susceptible to our remolding. [….]

Now a new president quickly becomes aware of the vast empire that is largely invisible to the citizenry. The United States maintains an estimated one thousand military bases in other countries. I say "estimated" because the exact number, location, and size of the bases are either partly or entirely cloaked in secrecy, among other things to protect nuclear installations. The secrecy involved is such that during the Cuban Missile Crisis, President Kennedy did not even know, at first, that we still had nuclear missiles stationed in Turkey.

An example of this imperial system is the Indian Ocean island of Diego Garcia. In the 1960s, to secure a military outpost without fear of any interference from indigenous peoples, the two thousand Chagossian inhabitants were forcibly expelled, deprived of their native land, and sent a thousand miles away. (It is the same ploy we had used in removing native peoples from the Bikini and Enewetak atolls and Lib Island, so that we could conduct our sixty-eight atomic and hydrogen bomb tests there.) Though technically Diego Garcia is leased from the British, it is entirely run by the United States. It was the United States that expelled the Chagossians and confiscated their property. Diego Garcia has become a vast armory, as well as a storage and staging area and harbor and launch site, from which supplies and air strikes are fanned out over the Middle East, especially to the Persian Gulf and the Afghanistan and Iraq wars. No journalists are allowed to visit it. It was funded on a vast scale by various deceptions of Congress. Even the leasing terms with Great Britain were kept secret, to avoid congressional oversight.

That is just one of the hundreds of holdings in the empire created by the National Security State. A president is greatly pressured to keep all the empire's secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast, shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the bomb, a modern president cannot not use the huge powers at his disposal. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.

And see Wills’s recent book, Bomb Power: The Modern Presidency and the National Security State (2010)

Update: With regard to No. 2 above, a recent post by Kevin Jon Heller at Opinio Juris brought my attention to Marko Milanovic's post at EJIL Talk!: “Drones and Targeted Killings: Can Self-Defense Preclude Their Wrongfulness?”

It seems this is one of those very rare occasions I'm in agreement with Julian Ku at Opinio Juris: “In other words, the basic legal framework of the Bush Administration's ‘war on terrorism’ has been adopted and maintained by the Obama Administration.”

Cross-posted at ReligiousLeftLaw.Com

East-Jerusalem does not belong to Jewish-Israelis

Please see this, this, and this. And then Juan Cole's "Top Ten Reasons East Jerusalem does not belong to Jewish-Israelis."

The Israeli government has mastered the Realpolitik art of creating "facts on the ground:"

Nowhere is the nature of the Israeli project to assert territorial control of the external spaces in the West Bank more more evident than in and around Jerusalem. 'Jerusalem,' like 'Israel,' itself, is not a stable concept—it is not one place fixed in space and time. Where Jerusalem is, where it begins and ends, how much land it encompasses, who is counted as a resident, and who is excluded: these have all proved unstable and shifting variables. This is one reason why hardly any country, including the United States, recognizes Jerusalem as Israel's capital: almost all nations, again including the United States, maintain their Israeli embassies not in Jerusalem, but rather in Tel Aviv (though the U.S. Congress recently passed legislation urging the president to move the U.S. embassy to Jerusalem).

Jerusalem was divided during and after the war in 1948 during which Israel was created. When the fighting ended, the western part of the city had fallen under Israeli control. The eastern part, along with the rest of the West bank, had ended up under Jordanian control. At that time, what was called East Jerusalem amounted to the area of the Old City and a few outlying neighborhoods, totaling a little over 2 square miles. After the 1967 War, during which Israel captured East Jerusalem and the West Bank (as well as the Gaza Strip), the Israelis expanded the territorial dimensions of what they called Jerusalem by adding almost 27 square miles of West Bank land to the city's municipal borders. In 1980, they also claimed to annex this additional land to Israel.

In fact, over 90 percent of the eastern part of what the official Israeli slogan refers to as 'the eternal and undivided capital of the Jewish people' actually consists of land thus added to Jerusalem after 1967. According to international law, this land is—like the original 2 square miles of post-1948 East Jerusalem itself—part of the West Bank, or, in other words, militarily occupied territory, not subject to unilateral annexation. 'East Jerusalem is not part of Israel,' the U.N.'s John Dugard has repeatedly said. 'On the contrary, it is occupied territory, subject to the Fourth Geneva Convention. Unfortunately, Israel's illegal attempt at annexation of East Jerusalem has obscured this truth. As a consequence, world public opinion tends, incorrectly, to treat Israel's occupation of East Jerusalem as different from that of the West Bank and Gaza.' Having claimed to annex it, Israel not only refuses to acknowledge that East Jerusalem is occupied territory, it treats it as though it were sovereign territory, which legally it is not. (From Saree Makdisi's Palestine Inside Out: An Everyday Occupation, 2008: 63-64)

In an attempt to affirm Israeli sovereignty over Jerusalem's Temple Mount/Haram al Sharif, Ariel Sharon strode into the Al-Aqsa compound on September 28, 2000, guarded by an armed entourage. Right after the provocative visit, Palestinian demonstrators hurled stones at Israeli police, who fired back tear gas and rubber-coated metal bullets. Twenty-five policemen and three Palestinians were injured in the confrontations. The next day, demonstrations erupted at the Temple Mount following the Friday prayers; rapidly, they spread to the West Bank and Gaza Strip. Within two days fifteen Palestinians had been killed. Sharon's visit to the Al-Aqsa compound had served as a trigger for the outbreak of the second, much bloodier, intifada. (From Neve Gordon's Israel's Occupation, 2008: 197)

Cross-posted at ReligiousLeftLaw.com.

The "Waste, Fraud, and Abuse" Trope: In Search of Facts

In today's Los Angeles Times we're treated to another insightful column from Michael Hiltzik: "Here We Go Again: Candidates Pledge to Search for Waste, Fraud and Abuse.'"

I doubt any of my state's gubernatorial candidates will mention this during their campaigns: "California's food stamp participation rate is nation's second lowest."

This reminds me of the fact that, in Iris Mudoch's words, "the concept of 'fact' is complex:"

"The moral point is that 'facts' are set up as such by human (that is moral) agents. Much of our life is taken up by truth-seeking, imagining, questioning. We relate to facts through truth and truthfulness, and come to recognise and discover that there are different modes and levels of insight and understanding. In many familiar ways various values pervade and colour what we take to be the reality of our world, wherein we constantly evaluate our own values and those of others, and judge and determine forms of consciousness and modes of being. To say all this is not in any way to deny either science, empiricism or commonsense. The proposition that 'the cat is on the mat' is true, indicates a fact, if the cat is on the mat. A proper separation of fact and value, as a defence of morality, lies in the contention that moral value cannot be [after Hume] derived from fact. That is, our activity of moral discrimination cannot be explained as merely one natural instinct among others, or our 'good' identified with pleasure, or a will to live...."

Robert Nozick puts Murdoch's point this way:

"Values enter into the very definition of what a fact is; the realm of facts cannot be defined or specified without utilizing certain values. Values enter into the process of knowing a fact; without utilizing or presupposing certain values, we cannot determine which is the realm of facts, we cannot know the real from the unreal."

Which is why I'm glad Murdoch mentioned the "cat on the mat," a seemingly innocuous proposition bereft of value. But even this statement is shot through with values of a kind, as Hilary Putnam explains in his inimitable manner:

"[F]act, (or truth) and rationality are interdependent notions. A fact is something that it is rational to believe, or, more precisely, the notion of a fact (or a true statement) is an idealization of the notion of a statement that it is rational to believe. [….] [B]eing rational involves having criteria of relevance as well as criteria of rational acceptability, and…all of our values are involved in our criteria of relevance. The decision that a picture of the world is true (or true by our present lights, or 'as true as anything is') and answers the relevant questions (as well as we are able to answer them) rests on and reveals our total system of value commitments. A being with no values would have no facts either. The way in which criteria of relevance involves values, at least indirectly, may be seen by examining the simplest statement. Take the sentence 'The cat is on the mat.' If someone actually makes this judgment in a particular context, then he employs conceptual resources—the notions 'cat,' 'on,' and 'mat'—which are provided by a particular culture, and whose presence and ubiquity reveal something about the interests and values of that culture, and of almost every culture. We have the category 'cat' because we regard the division of the world into animals and non-animals as significant, and we are further interested in what species as given animal belongs to. It is relevant that there is a cat on the mat and not just a thing. We have the category 'mat' because we regard the division of inanimate things into artifacts and non-artifacts as significant, and we are further interested in the purpose and nature a particular artifact has. It is relevant that it is a mat that the cat is on and just something. We have the category 'on' because we are interested in spatial relations. Notice what we have: we took the most banal statement imaginable, 'the cat is on the mat,' and we found that the presuppositions which make this statement a relevant one in certain contexts include the significance of the categories animate/inanimate, purpose, and space. To a mind with no disposition to regard these as relevant categories, 'the cat is on the mat' would be as irrational as 'the number of hexagonal objects in this room is 76' would be, uttered in the middle of a tête-à-tête between young lovers. Not only do very general facts about our value system show themselves in our categories (artifacts, species name, term for a spatial relation) but, our more specific values (for example, sensitivity and compassion), also show up in the use we make of specific classificatory words ('considerate,' 'selfish'). To repeat, our criteria of relevance rest on and reveal our whole system of values."

In political discussions and debates we often resort to assertions about what we take to be the relevant facts, one problem being that we frequently cannot even agree on the criteria of relevancy, given the roles of consciousnesss, modes of being, and values in the determination and discrimination of the (salient) facts.

We could further complicate matters here with a discussion of the significance of objectivity, perceptual and epistemic relativism, conceptual schemes, and realism about truth.

Cross-posted at ReligiousLeftlaw.com.

Let's Help Put an End to Prison Rape

At her indispensable Prison Law Blog, Sara Mayeux asks, "why not take five minutes to write a letter to the Department of Justice, urging the adoption of the National Prison Rape Elimination Commission standards? You can print out a sample letter from Prison Fellowship here, or read more about the issue — including an interview with Lovisa Stannow, executive director of Just Detention International, over here at Change.org — Criminal Justice."

While you're visiting Sara's site, please check out her list of criminal law blogs in the right-hand column.

Cross-posted at ReligiousLeftLaw.com.

Update: The second of two articles by David Kaiser and Lovisa Stannow for the New York Review of Books is out: "The Way to Stop Prison Rape." The first article is here. From the conclusion to their latest piece:

Sexual abuse in detention is a human rights crisis in this country. Reform is urgent, and the commission makes clear how to achieve it. No one expects or wants Attorney General Holder simply to accept the commission's recommendations without question, but it is worth emphasizing that a bipartisan, government-appointed commission has already spent years developing standards to prevent prisoner rape. Its proceedings were inclusive, responsible, and exhaustive, and the standards themselves products of compromise among experts, reflecting the best practices already in place at our best facilities. If Holder needlessly delays in approving these standards, or ones very much like them—worse, if he strips them of their force because of pressure from corrections leaders—then tens or hundreds of thousands of men, women, and children will continue to be raped while in the government's care, when we could have prevented it.

The Left & Liberalism

At my post at ReligiousLeftLaw.com that was cross-posted here on "Justice, Inequality & Health," one of my co-bloggers, Steve Shiffrin, asks the following question in the comments: "I wonder how you conceive the differences between the left and liberalism beyond the remarks you make in this post." Here is my all-too-brief reply:

Steve,

I trust you'll permit me to address your question about the differences between the Left and Liberalism on another occasion (a separate post), so suffice to say for now I think it has to do with how "politics" itself is conceived (hence the truth of your remark that 'the general debate about the nation's health speaks volumes about our politics') and how the economy and "marketplace" are conceptualized as part of the "private" sector. Relatedly, Liberalism lacks the conceptual resources to sufficiently restrain capitalism and overcome the pride of place accorded economistic values. In short, "capitalist democracy" is conspicuous for its capitalism insofar as it is allowed, in the end, to define both the character and structural contours of democratic theory and practice. Yet to think of capitalist democracy as "separate 'parts' is to miss the vital integrity of the system" (Joshua Cohen and Joel Rogers), a system that finds philosophical warrant and ideological blessing in the form of Liberalism. Thus Liberalism can countenance the formal granting of political rights but is often blinded to inequalities in the distribution of resources that decisively affect the exercise of such rights (cf. the recent SCOTUS decision in Citizens United). Furthermore, we have what Cohen and Rogers term a "demand constraint:" "As a result of their control of investment, the satisfaction of the interests of capitalists [qua capitalists] is a necessary condition for the satisfaction of all other interests within the system."

With regard to the workers you cite above, their welfare "remains structurally secondary to the welfare of capitalists, and the well-being of workers depends directly on the decisions of capitalists." Here, the ideological rhetoric of the Right (e.g., when it talks of the 'special intersts' of unions) captures an essential truth of Liberalism inasmuch as it must live with the fact that "the interests of capitalists appear as general interests of the society as a whole, the interests of everyone else appear as merely particular, or 'special.'"

I could say more here but Cohen and Rogers do it better in their little book, On Democracy: Toward a Transformation of American Society (1983).

Mind you, I'm in many respects still a "Liberal" (especially of the Millian sort*), hence it is possible and quite likely, in Dick Flacks' words, that one might "be a Marxist in the morning, a pacifist in the afternoon, an environmentalist at dinner, and a feminist in the evening, while going to church on Sunday and voting Democrat on election day."

The Left, generously defined, is sensitive to the limits of the Liberal tradition, and in transcendence of those limits it need not abandon such things as the value accorded moral autonomy or the importance, say, of constitutionalism as found in that tradition (any more than my identification with the 'religious left' means I need turn my back on the progress enshrined in the European Enlightenment). **

Again, forgive me if I postpone a deeper treatment until another day.

*On the "Millian sort of Liberal," please see Kwame Anthony Appiah's The Ethics of Identity (2005).

**On the perils of "anti-liberalism," especially those of "communitarian" provenance, please see Stephen Holmes's The Anatomy of Antiliberalism (1993). For some of the reasons the Left should embrace much of the Liberal tradition, see also Holmes's Passions & Constraint: On the Theory of Liberal Democracy (1995). Gerald (Jerry) Gaus also articulates many of the reasons the Left should cherish its Liberal heritage.

Tony Judt & The Common Good

There's a nice review of Tony Judt's latest book, Ill Fares the Land (2010) in the New York Times (h/t Michael Perry). For those who haven't followed Judt's recent articles in the New York Review of Books, Dwight Garner writes that

The British historian Tony Judt is dying, slowly and painfully, from a variant of amyotrophic lateral sclerosis (A.L.S.), better known as Lou Gehrig’s disease. He has written matter-of-factly about his condition — he is now, essentially, a quadriplegic — in The New York Review of Books. At some point he will be able to communicate only by blinking an eye. For now he is dictating his words to assistants.

One of Judt's recent essays in particular I recommend: "What Is Living and What Is Dead in Social Democracy?", even if I might have made essentially the same argument in slightly different terms, eschewing, for example, Judt's suggestion that "If social democracy has a future, it will be as a social democracy of fear." By this he means the need to remind the public of the considerable and perhaps taken-for-granted achievements of the twentieth century he believes we're in peril of loosing in toto or in part: "The left, to be quite blunt about it, has something to conserve." Now while this is undoubtedly true, I'm not convinced a "backward-looking" orientation should dominate the discourse of the Left. Still, that's a wee quibble in light of the larger argument.

As for his newest book, I paused for a moment in light of the following from the review:

What caused this dire loss of faith in our government and leaders? Mr. Judt spreads the blame around. He criticizes the narcissistic left of the 1960s, which was largely uninterested in social justice. “What united the ’60s generation was not the interest of all, but the needs and rights of each,” he writes.

One hesitates to criticize Judt, but I think he has this wrong, as does Alan Wolfe and others who have become fond of this fashionable canard, which appears based on an overly whiggish or unduly functionalist view of recent history.

The self-identified Left was in fact quite concerned about social justice. Whatever its other shortcomings, evidence of this concern is found in the Students for a Democratic Society's (SDS) Port Huron Statement as well as in numerous civil rights organizations and is plausibly viewed as a fundamental premise of the Highlander Folk School (and an explict value of today's Highlander Research and Education Center). Think too of the impact of Michael Harrington's The Other America: Poverty in the United States (1962), a work almost singularly responsible for the short-circuited "war on poverty:"

Among the book’s readers, reputedly, was John F. Kennedy, who in the fall of 1963 began thinking about proposing anti­poverty legislation. After Kennedy’s assassination, Lyndon Johnson took up the issue, calling in his 1964 State of the Union address for an “unconditional war on poverty.” Sargent Shriver headed the task force charged with drawing up the legislation, and invited Harrington to Washington as a consultant. (Maurice Isserman in the New York Times)

In fact,

Mr. Judt cites some of the achievements of the Democratic-led Congresses of the 1960s, achievements that would be nearly impossible in today’s political climate: “food stamps, Medicare, the Civil Rights Act, Medicaid, Head Start...."

Much of the inspiration for such achievements came from the direct and indirect effects of political theorizing, agitation, and old-fashioned political pressure on the part of the Left (broadly construed), and several of these programs may have been largely the result of the impact of Harrington's book. Consider too the myriad "experiments in social change" of that time which also revolved around concerns about social justice: see John Case and Rosemary C.R. Taylor, eds., Co-ops, Communes & Collectives: Experiments in Social Change in the 1960s and 1970s (1979). And Martin Luther King's interests and campaigns eventually widened to include a focus on social justice issues both here and abroad, not surprising given that justice is said to have been one of the three key themes (along with love and hope) of King's theology. Again, whatever its considerable shortcomings (e.g., its militancy and Sorelian infatuation with violence), the Black Panther Party demonstrated a principled exemplification of a commitment to social justice:

Before the Black Panther Party officially disbanded in 1982...it succeeded in feeding thousands of hungry childern across the country. It first publicized and then helped to treat sickle cell anemia, a debilitating blood disease primarily afflicting blacks. Panther Free Health Clinics brought decent healthcare to thousands who were mired in poverty and unable to afford medical care.(From Curtis J. Austin's Up Against the Wall: Violence in the Making and Unmaking of the Black Panther Party, 2006).

Narcissism in some measure might be counted among the vices and virtues of the counter-cultural movements and ethos of the 1960s, but this should be distinguished from the actual values, principles and practices of the (Old or New) Left of the period, the memory of which is worthy of conservation as well.

Update: From the London Review of Books, an interview with Judt in which he is asked, "In a recent essay you call for a ‘social democracy of fear’. But hasn’t the ‘war on terror’ of the last eight years shown just how dangerous appeals to fear are? When can fear be good?" Here is Judt's reply:

I wouldn’t want to claim that there are good fears, but good and bad uses of fear are possible. The bad uses are clear. There is the demagogic exploitation of fear of outsiders and strangers, which culminates in putting up barriers against immigration, refugees or exiles. The sense that things are out of control, that we may lose our jobs next year because of competition from China or India, or that some farms may become unworkable in five years’ time because of climate change, has been intensified by globalisation, and it has given rise to large, unspecific fears which are played on in America by people like Sarah Palin, or in Denmark by the anti-immigrant party, or in Switzerland with the referendum against minarets. These fears may breed nationalism, patriotism, preventive wars and repressive anti-terrorist legislation, but in the end it’s just excessive state power. It can’t save you from terrorism, which is a political problem; it can only create a too powerful state. This can happen in very open democracies.

Britain has more closed-circuit television cameras, which keep a record of almost everyone’s movements everywhere at all times, than any other democracy in the world. In the old days we would have seen this as an unacceptable intrusion on personal freedoms, yet today it’s accepted because people are frightened of crime, outsiders, terrorism. We no longer have a choice of a wonderfully happy and prosperous, secure and stable future: this isn’t Sweden in 1965. That’s why I propose a social democracy of fear. We will have to have active interventionist states protecting us against things that frighten people: states controlling changes so they don’t get out of hand or create a political backlash. Why not face up to this challenge in the name of a progressive state with collective objectives and purposes, which preserves institutions that give us a sense of shared identity and values? We are going to have to find a new language in which to express the role of the state in this uncertain world. We have a choice to leave it to other people to come up with a language we won’t like or to come up with a language ourselves.

Justice, Inequality & Health

The sociologist, New Left veteran, and my former teacher, Richard (‘Dick’) Flacks,* wrote the following in his important book, Making History: The Radical Tradition in American Life (1988):

“Virtually all of the debates about strategy that have divided the American left in the twentieth century were rooted in false dichotomies; most of the sides in most of these debates were expressing valid understandings of partial truths. These debates—about ‘politics’ vs. ‘direct action,’ about ‘confrontation’ vs. ‘permeation,’ about ‘independent political action’ vs. ‘coalition…about ‘integration’ vs. ‘black power,’ about ‘reformism’ vs. ‘revolutionism’—occurred not because some leftists were morally pure and others were ‘revisionists,’ nor because some were ‘crazy’ and others ‘rational,’ but because there were fundamental differences in the perceptions leftists had of social reality, differences made inevitable by the complexity of that reality. What was mistaken, then, was not this view or that, but the assumption that only pole of each of these debates could be right, or that there was one ‘correct path’ that all organized leftists had to find and follow.”

The point I’d like us to consider is that the current health care debate, including the urgency of passing health care reform legislation, should not be an occasion for forgetting or ignoring the significance of larger and thus more inclusive questions concerning the relation between health, inequality, and social justice. At the same time, and after Flacks, I’m not intending to pose a “false dichotomy” between health care reform and a more theoretical approach that relies on understanding the relevant causal variables linking individual and population health, inequality, and the quest for social justice (although neglect of the latter might plausibly be said to distinguish a Liberal from a Leftist). Rather, I’m simply imploring us not to forget the wider possible social determinants of health, a discussion of which goes far beyond the parameters of the current health care debate, the former necessarily encompassing the latter. In his invaluable entry on “Justice, Inequality, and Health” in the Stanford Encyclopedia of Philosophy (linked below), Gopal Sreenivasan explains that a “social determinant of health is a socially controllable factor outside the traditional health care system that is an independent partial cause of an individual’s health status. Candidate examples include income, education, occupational rank, and social class.” Therefore, writes Sreenivasan,

“Health care (personal medical care and public health) is clearly an additional socially controllable determinant of health. Nevertheless, for different reasons, in both the empirical and the philosophical literatures, health care is something of a separate topic. In the public health literature, variations in access to health care are not regarded as a significant contributor to inequalities in health. But to recognise that there are social determinants of health, in the sense we have defined, is not to deny the importance of health care as another partial cause.”

Consider, for instance, the following quotes from some of the leading analysts in the literature on on health, inequality and social justice:

“Inequalities in health are...closely tied to inequalities in the most basic freedoms and opportunities that people enjoy.”—Sudhir Anand

“We have known for over 150 years that an individual's life and death are patterned according to social class: the more affluent and better educated people are, the longer and healthier their lives. These patterns persist--even when there is universal access to health care--a finding quite surprising to those who think financial access to medical services is the primary determinant of health status. In fact, recent cross-national evidence suggests that the greater the degree of socio-economic inequality that exists within a society, the steeper the gradient of health inequality. As a result, middle-income groups in a more unequal society will have worse health than comparable or even poorer groups in a society with greater equality. Of course, we cannot infer causation from correlation, but there are plausible hypotheses about pathways which link social inequalities to health and, even if more work needs to be done to clarify the exact mechanisms, it is not unreasonable to talk here [after Michael Marmot] about the social ‘determinants’ of health.” —Norman Daniels, Bruce Kennedy, and Ichiro Kawachi

“If we have obligations of social justice to provide equality of opportunity, as in Rawls's robust notion of fair equality of opportunity, then we have social obligations to promote normal functioning [i.e., to prevent significant mental or physical pathology] and to distribute it equitably within society by designing our institutions properly. [….] The broad determinants of health and its distribution in a population include income and wealth, education, political participation, the distribution of rights and powers, and opportunity. These are quite centrally the goods that any general theory of social justice is concerned about. We cannot achieve effective promotion of health in a society as well as its fair distribution without a just distribution of these other goods. Putting together the key results from the epidemiology literature with Rawls's principles of justice as fairness, we learn why justice is good for our health and we get a general answer to the question ‘When is a health inequality unjust?’”—Norman Daniels

“Many kinds of social institutions can substantially contribute to the incidence of medical conditions. Of these, economic institutions--the basic rules governing ownership, production, use, and exchange of natural resources, goods, and services—have the greatest impact on health. This impact is mediated, for the most part, through poverty. By avoidably producing severe poverty, economic institutions substantially contribute to the incidence of many medical conditions. Persons materially involved in upholding such institutions are then materially involved in the causation of such medical conditions. [….] In our world, poverty is highly relevant to human health. In fact, poverty is far and away the most important factor in explaining health deficits. Because they are poor, 815 million persons are undernourished. 1,100 million lack access to safe drinking water. 2, 400 million lack access to basic sanitation, more than 880 million lack access to health services, and approximately 1,000 million have no adequate shelter. Because of poverty, ‘two out of five children in the developing world are stunted, one in three is underweight and one in ten is wasted.’ [....] One-third of all human deaths are due to poverty-related causes.”—Thomas Pogge

“In the United States...black men in deprived areas have twenty years’ shorter life expectancy than richer white men. The major contributors to this excess mortality are violent deaths, HIV/AIDS, and cardiovascular disease. Poverty of material conditions does not provide a ready biological explanation for the causes of shortened lives. [....] In so far as material deprivation can be seen to cause homicide or risky sexual behavior or drug use, its effects are likely to be through psychological pathways. To be clear, we have had pathways linking material circumstances to disease via exposure to cold, infections, malnutrition. More recently, these have been supplemented by behaviours such as smoking, diet, and physical activity. The psychosocial approach emphasizes subjective experience and emotions that produce acute and chronic stress which, in turn, affect biology and, hence, mental and physical illness. Our growing understanding of psychological factors points to ways that the social environment can have a powerful influence on health. All three types of pathways—material, behavioral, and psychosocial—should be within our focus.”—Michael Marmot

So, by way of a modest contribution to helping us keep in mind the various social determinants of individual and population health, the effects of inequality on health, and their relation to social justice, I’m providing links to two essential articles by Norman Daniels and Gopal Sreenivasan respectively from the Stanford Encyclopedia of Philosophy; Anup Shah’s page, “Poverty Around the World” from his Global Issues website; and my bibliography, “Health: Law, Ethics & Social Justice.”

Daniels, Norman, “Justice and Access to Health Care,” The Stanford Encyclopedia of Philosophy (Winter 2008 Edition), Edward N. Zalta (ed.): http://plato.stanford.edu/archives/win2008/entries/justice-healthcareaccess/

Sreenivasan, Gopal, “Justice, Inequality, and Health,” The Stanford Encyclopedia of Philosophy (Spring 2009 Edition), Edward N. Zalta (ed.): http://plato.stanford.edu/archives/spr2009/entries/justice-inequality-health/

Poverty Around the World (with a section on ‘inequality and health’)

Health: Law, Ethics & Social Justice—A Basic Bibliography

*For Flacks’ formative role in the Students for a Democratic Society (SDS) and the New Left generally, please Kirkpatrick Sale’s SDS (New York: Random House, 1973) and James Miller’s “Democracy Is in the Streets:” From Port Huron to the Siege of Chicago (New York: Simon and Schuster, 1987).

Cross-posted at ReligiousLeftLaw.com

The Arab/Israeli Conflict, the Middle East & the Islamic World: A Few Resources

For readers wanting to learn more about the Arab (and in particular Palestinian)/Israeli conflict, or about the Middle East, or about the Islamic world in general (a vast majority of Muslims residing outside the Middle East and North Africa), I’ve assembled the following list of websites that should prove helpful. It’s not meant to be at all comprehensive and it reflects my personal preferences insofar as I’m fond of these sites for one reason or another. If you know of something you think would be worthy of addition, please send it along and I’ll consider adding it to the list (i.e., there’s no guarantee I’ll include it but I’ll certainly give it fair consideration). I’m interested in according attention to viewpoints not widely available in the mainstream media as well as political perspectives that receive little support among our political leaders or are unknown in any more than a superficial or distorted sense among the educated public in this country.

Al Ahram Weekly
http://sites.google.com/site/weeklyahramorgeg/

Al Haq: “defending human rights in the occupied Palestinian occupied territory since 1979.” http://www.alhaq.org/

The Arab Association for Human Rights (Association in Service of the Palestinian Arab Minority in Israel): “founded in 1988 by lawyers and community activists, [it] is an independent, grassroots, non-governmental organization (NGO), registered in Israel. HRA works to promote and protect the political, civil, economic, and cultural rights of the Palestinian Arab minority in Israel from an international human rights perspective.”
http://www.arabhra.org/HRA/Pages/Index.aspx?Language=2

B'Tselem: “The Israeli Information Center for Human Rights in the Occupied Territories was established in 1989 by a group of prominent academics, attorneys, journalists, and Knesset members. It endeavors to document and educate the Israeli public and policymakers about human rights violations in the Occupied Territories, combat the phenomenon of denial prevalent among the Israeli public, and help create a human rights culture in Israel.”
http://www.btselem.org/English/index.asp

Informed Comment: Thoughts on the Middle East, History and Religion (Professor Juan R.I. Cole)
http://www.juancole.com/

The Institute of Ismaili Studies: “The Institute of Ismaili Studies was established in 1977 to promote scholarship of Muslim cultures and societies, historical as well as contemporary, leading to a better understanding of their relationship with other societies and faiths.”
http://www.iis.ac.uk/home.asp?l=en

Islamic Law in Our Times: A Realist’s Assessment of Contemporary Islamic Law (Professor Haider Ala Hamoudi)
http://muslimlawprof.org/

The Islamic Texts Society: “The Islamic Texts Society is a publishing house founded in 1981 and registered as an educational charity in the UK (reg. no. 283832). The Society produces English translations of works of traditional importance to the Islamic faith and culture, including editions of hitherto unpublished manuscripts, and also sponsors contemporary works on Islamic subjects by scholars from all parts of the world. The Society hopes thereby to promote a greater understanding of Islam among both Muslims and non-Muslims, catering for laypersons as well as academics in the field of Islamic studies.”
The Islamic Texts Society

The Middle East Research and Information Project: “The Middle East Research and Information Project (MERIP) was established in 1971. The original conception of MERIP was to provide information and analysis on the Middle East that would be picked up by the existing media. Issue number one of MERIP Reports, published in May 1971, was a six-page mimeographed publication with three brief articles. Throughout 1971 and 1972, the Report appeared irregularly, and it was only in 1973 that the group made a commitment to publish it on a regular basis. Since then, MERIP has never looked back and, in the words of French journalist Eric Rouleau, “No person, specializing or not in Middle Eastern affairs, can afford ignoring Middle East Report.” Professor Rashid Khalidi, a leading American scholar, says “Middle East Report is the best periodical (in English) on the Middle East -- bar none.” MERIP is a non-profit, non-governmental organization based in Washington, DC. A completely independent organization, it has no links to any religious, educational or political organizations in the US or elsewhere. Income needed to produce the magazine is earned from subscriptions to Middle East Report, small grants from European and American foundations and gifts from readers and subscribers.”
MERIP - Middle East Research and Information Project

Middle East Online
Middle East Online

Palestinian Centre for Human Rights (PCHR): “A central principle of PCHR's work is that a just, lasting, and comprehensive peace in the region, as well as the healthy development of Palestinian society, must be built on a foundation of respect for human rights and democratic principles.”
Palestinian Center for Human Rights

Public Committee Against Torture in Israel: “PCATI advocates for all persons - Israelis, Palestinians, labor immigrants and other foreigners in Israel and the Occupied Palestinian Territories (OPT) – in order to protect them from torture and ill treatment by the Israeli interrogation and law enforcement authorities. These include the Israel Police, the General Security Service (GSS), the Israel Prison Service and the Israel Defense Forces (IDF). PCATI acts in accordance with moral and democratic values, and the standards set in Israeli and International law. PCATI was founded in 1990 in reaction to the ongoing policy of the Israeli government, which permitted the systematic use of torture and ill treatment in GSS interrogations.”
http://www.stoptorture.org.il/en

SSRN/Islamic Law & Law of the Muslim World Research Paper Series
http://www.ssrn.com/link/Islamic-Law-Muslim-World.html

My bibliography for Islamic Studies is here: http://www.jurisdynamics.net/files/documents/IslamicStudiesBibliography.doc

My bibliography for the Israeli/Palestinian conflict is here.

The image is courtesy of the Los Angeles County Museum of Art (LACMA).

Cross-posted at ReligiousLeftLaw.com

Miscellany

The latest issue of Logos (apologies to my Catholic friends, who might have thought of this) is available online, and while there are several intriguing articles I want to recommend in particular Steve Niva's review of three recent books that examine the Israeli-Palestinian conflict through the lens of a sophisticated geopolitics. Of the three, I've found Makdisi's to be the most informative. Not reviewed but also worth reading: Adi Ophir, Michal Givoni and Sari Hanafi, eds., The Power of Inclusive Exclusion: Anatomy of Israeli Rule in the Occupied Territories (New York: Zone Books, 2009). This volume includes essays by two of our authors, Gordon and Weizman, from the aforementioned review.

Los Angeles Times columnist Steve Lopez changes his mind about the value of "super-intelligent mammals performing circus tricks for us humans." Relevant background reading would include Dale Jamieson's essays, "Against Zoos," and "Zoos Revisited," in his book, Morality's Progress (New York: Oxford University Press, 2002): 166-189.

Finally, the indispensable online Stanford Encyclopedia of Philosophy is beginning to cover subject matter from Indic religio-philosophical traditions which are of course dear to my own heart. Nevertheless, if you have a philosophical temperament and are interested in learning more about these worldviews, I suggest spending time with the following entries: Analytic Philosophy in Early Modern India, Nāgārjuna, and Śāntaraksita. The Internet Encyclopedia of Philosophy also has entries on significant concepts, doctrines and figures from Indic worldviews.

Please note: the links to Amazon.com are for informational purposes only.

Cross-posted at ReligiousLeftLaw.com (Perhaps some readers would also be interested in my post on 'Spirituality, Religion, and Philosophy' at this blog.)