Legalizing Torture? Part I: The 2002 Bybee Memo

[This is the first in a series of posts analyzing the recently released Office of Legal Counsel memos discussing the legality of proposed coercive interrogation methods to be used against suspected members of al Qaeda. The first memo to be considered is the August 1, 2002 memo from Jay Bybee to John Rizzo, the acting General Counsel of the CIA, entitled Interrogation of al Qaeda Operative.]

When the CIA found itself holding Abu Zubaydah, it believed that it was holding "one of the highest ranking members of the al Qaeda organization." According to the memo, "the interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas." To find out what Zubaydah knew, the CIA requested to expand the repertoire of interrogation techniques available to it. Specifically, the CIA asked to be able to use the following 10 techniques: "(l) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard." The report goes on to specifically detail how each technique would be used. For example, here's the description of "walling":

For walling, a flexible false wall will be constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual's shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. You have orally informed us that the false wall is in part constructed to create a loud sound when the individual hits it, which will further shock or surprise the individual. In part, the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action.

After describing all of the requested techniques, the memo then launches into a discussion of the effect of these techniques on individuals subjected to them as part of the military's SERE (Survival, Evasion, Resistance, and Escape) training. "Of the 26,829 students trained from 1992 through 2001 in the Air Force SERE training, 4.3 percent of those students had contact with psychology services. Of those 4.3 percent, only 3.2 percent were pulled from the program for psychological reasons. Thus, out of the students trained overall, only 0.14 percent were pulled from the program for psychological reasons." These numbers reflect people who were subjected to all of the requested techniques except for insects in the confinement box and the waterboard. Regarding the waterboard, the memo continues,

your on-site psychologists, who have extensive experience with the use of the waterboard in Navy training, have not encountered any significant long-term mental health consequences from its use. Your on-site psychologists have also indicated that JPRA has likewise not reported any significant long-term mental health consequences from the use of the waterboard. You have informed us that other services ceased use of the waterboard because it was so successful as an interrogation technique, but not because of any concerns over any harm, physical or mental, caused by it. It was almost 100 percent effective in producing cooperation among the trainees. [REDACTED] also indicated that he had observed the use of the waterboard in Navy training some ten to twelve times. Each time it resulted in cooperation but it did not result in any physical harm to the student.

In short, the memo concludes that based on the experience of those undergoing these techniques in SERE, there is no indication that these measures will cause any long-term mental or physical harm.

Bybee then turns to US law on torture: Section 2340A of the US code, which makes it illegal for any US citizen to engage in torture outside of the US. Section 2340(1) then defines torture thusly:

"torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.

In turn, Section 2340(2) reads:

"severe mental pain or suffering" means the prolonged mental harm caused by or resulting from (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality

Thus, Bybee concludes, violating the Section 2340A "requires a showing that: (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant's custody or control; (4) the defendant specifically intended to inflict severe pain or suffering; and (5) that the acted inflicted severe pain or suffering." The memo then proceeds to argue that none of the techniques in question causes "severe pain or suffering." Briefly, the OLC has concluded elsewhere that "'severe pain' within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury." The memo also concludes that none of the techniques is likely to cause severe mental pain or suffering either, with two possible exceptions. Given Zubaydah's professed fear of insects (which is the rationale for putting insects in the confinement box with him), it could cause him severe mental pain or suffering if Zubaydah's believes that the insect could sting him and cause injury or death. Thus, the interrogators must either tell Zubaydah that the insect's sting (the CIA says that while it intends to tell Zubaydah that the insect is a stinging one, it intends to put a non-stinging insect in the box) cannot produce severe pain or death or should not tell him that the insect can sting at all. It also notes that "although the waterboard constitutes a tbreat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering," which is turn defined as "mental harm lasting months or years."

Bybee does note that "under certain circumstances - for example, rapid escalation in the use of these techniques culminating in the waterboard (which we acknowledge constitutes a threat of imminent death) accompanied by verbal, or other suggestions that physical violence will follow - might cause a reasonable person to believe that they are faced with such a threat." Thus, the OLC is uncertain whether such a course would constitute a violation of the laws prohibiting torture. However, even if such circumstances occurred, to be considered torture and thus a violation of Section 2340A, the act must be committed with a specific intent to cause severe physcial or mental harm and must in fact cause severe physical or mental harm. If the interrogators do not have specific intent, there can be no torture.

Now, on to the analysis. First, this is the first chronologically of the memos...many of the most controversial techniques -- such as dousing a subject with cold water and forced nudity -- are not discussed in here, and won't be until 2005. Second, this is a serious attempt to define the boundaries of the law. While it may seem like legalistic parsing or hair splitting, let's not forget that there is, in fact, a serious threat to the US. That does not in and of itself justify torture. It does, however, justify efforts to find the strongest techniques available to interrogate suspected terrorists that are legal under US law.

That said, it seems to me that there are several problems in the legal analysis. First, I'm not so sure how accurately one can draw comparisons between those subjected to these techniques in a SERE program to a detainee's experience. The SERE people know, no matter how brutal the things being done to them, that their tormentors are their compatriots and that there are limits to what will, in fact, be done. The suspected terrorist has no such reassurances. So, while the physical effects may be the same, it seems as if the mental effects would be much worse for the detainee. [Please note that I am not in any way miniziming the SERE experience...it just doesn't seem to be really comparable in a legal sense].

Second, the requirement of specific intent is troubling. If the intent of the interrogator conducting a waterboarding session is to cause an imminent fear of death, which the OLC admits waterboarding does, can the only thing keeping this from being torture that waterboarding doesn't leave any lasting mental pain? Christopher Hitchens notes that, after voluntarily undergoing waterboarding, he suffers from panic attacks and night terrors. That may not count as "severe" mental pain and suffering, but it's getting close. And if Zubaydah does have, as the CIA believes he does, a fear on insects, confining him in a box with an insect that he may believe will sting him also seems to be pushing the line of causing severe mental pain and suffering.

As I mentioned, this memo is perhaps the most reasonable of the four that have been released, and it still seems to push the boundaries, particularly with waterboarding. However, the real problems at this stage seem to lie in the legal defintion, not in the OLC's interpretation of that wording. The law does say that there must be specific intent to cause severe pain and suffering and the law does not define in any clear way what constitutes severe mental and physical pain and suffering. It is not surprising that the administration pushed the law as far as it could in its efforts to defend the nation.

It seems difficult to conclue, I think, at this point over this memo that there is grounds for prosecution of the purveyors of this legal advice. There is a serious attempt to stay within the bounds of the law, while defining the law as liberally as possible. That may be wrong, but it doesn't seem to be criminal. As I have said before, I put more blame at this point on Congress, which never saw fit to more tightly and clearly define the rules with which it sought to limit the power of the president. As Kenneth Anderson points out in a New York Times debate on the memos, many members of Congress clearly knew what was going on:

as the Washington Post reported in December, 2007:

Yet long before “waterboarding” entered the public discourse, the C.I.A. gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.

With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter.

Most prominent among those briefed on waterboarding was Nancy Pelosi. According to the Post’s interviews, members of the Congressional oversight committees understood that they had to weigh the limits of inhumane treatment of people known to have Al Qaeda connections against the threat of new attacks. They believed that these techniques struck the right balance in the circumstances. Yet I haven’t heard of any serious call for prosecuting Speaker Pelosi or any of her colleagues for complicity in torture.

Anderson goes on to note something I have called attention to several times; Congress still has not made waterboarding illegal or passed legislation specifically defining it as torture. If Congress really wants to ensure that waterboarding or other techniques are not used, it must pass a law making such actions illegal. The fact that it doesn't hints at two things: One, that there is in fact a broader consensus on the need for such programs than people will admit publicly, and that; Two, Congress really is the feckless body, unwilling to take responsibility for the defense of the state, that we think it is.

However, to foreshadow some of the subsequent memos, we see that first, the CIA doesn't use waterboarding in the same way it is used in the SERE program, further throwing into doubt the legal reasoning of the first Bybee memo. Second, we see introduced much more controversial techniques, such as forced nudity, dietary/caloric restriction, and dousing with cold water. We also see a recognition that many of these techniques are considered torture by the United States when used by other countries.

The New Torture Memos

Today, the Department of Justice released several memos from the Office of Legal Counsel on the use of and legality of coercive interrogation techniques and how they are to be interpreted given US laws prohibiting torture. The memos can be found here. All of the memos are, essentially, parsing the coercive techniques to determine whether the violate US domestic laws against torture as well as US obligations under the Convention Against Torture, which the US has signed and ratified.

I haven't yet read the memos, so I can't comment in detail on the legal analyses. But, they appear to be serious attempts to define what is and what is not torture. Critics aside, this is an important distinction. Not every coercive interrogation technique is torture, so to draw the line we need to be able to define what constitutes torture. And it's not as obvious at it might seem. For example, in Ireland v UK (1978) the European Court of Human Rights ruled that several coercive interrogation techniques, including wall standing, hooding, subjectin to noise, sleep deprivatin, deprivation of food and drink -- several of which are at issue in the OLC memos -- did not constitute torture, although they were "cruel, inhuman, and degrading." Thus, the need to determine a standard of what is coercive, even if cruel, and what is torture. That is what these memos appear to try to do. That is not to say that they do the task well, or even honestly. I can't say yet. But the task itself is a necessary one.

President Obama also announced today that he would not bring charges against CIA interrogators who relied on the OLC memos for guidance as to what policies could be legally used. According to Attorney General Eric Holder, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." That does seem to leave the door open to prosecuting those responsible for the legal opinions. But that remains to be seen.

Once I've read the memos, I'll comment on them.

Amnesty in Zimbabwe

The New York Times is reporting that top officials of Robert Mugabe's ZANU-PF party in Zimbabwe, fearing what will happen now that the opposition party is in the government, are kidnapping and torturing members of the opposition party in an effort to extract promises of amnesty from them. According to the Times:

Didymus Mutasa, who served as Mr. Mugabe’s minister for national security until the power-sharing deal went into effect, acknowledged that some senior officials in his party might be worried about prosecution.

Had the party floated the idea of an amnesty? he was asked. “Perhaps,” he said.

Were abductions used to gain leverage for amnesty? “There could have been something like that,” he said, “but how am I to know?”

The crimes that have been committed under Mugabe's government are unquestionably horrible, and the victims most certainly deserve justice. The Times provides a short accounting:

The crimes committed to entrench Mr. Mugabe’s rule date back to the 1980s, when thousands of civilians from Zimbabwe’s Ndebele minority in Matabeleland were killed by the notorious North Korean-trained Fifth Army brigade, according to historians.

Among the Ndebele, the tears of the living must be shed to release the souls of the dead. But the Fifth Brigade insisted that there be no mourning for those they killed, and in some cases shot family members because they wept, according to “Breaking the Silence,” a 1997 investigation based on the testimonies of more than 1,000 witnesses.

Other political crimes include widespread attacks on the opposition in 2000, 2002 and 2005, and most gruesomely last year. Beyond that, a vast 2005 slum clearance effort known as Operation Murambatsvina, or Get Rid of the Filth, drove 700,000 people in opposition bastions from their homes.

Last year, close to 200 people were killed, mostly before the June presidential runoff between Mr. Mugabe and the opposition leader, Morgan Tsvangirai, and thousands were tortured in state-sponsored attacks, but so far no one has been prosecuted, according to a State Department human rights report released in February.

Mr. Mugabe’s party fears that even more damning evidence will be unearthed.

This doesn't even include the horrors that Mugabe has unleashed on his people through his misrule: driving the country into bankruptcy, destroying Zimbabwe's agricultural capacity, collapsing the state's educational and health care systems, and so on.

So, justice is clearly due. But what kind of justice? Setting aside the coercion, should Mugabe and his cronies be given amnesty for their actions? Is getting the ZANU-PF out of power more important than punishing its leaders and members for their actions?

That decision rests, as it shoud, with the peopel of Zimbabwe. Different countries have transitioned through their difficult pasts in different ways. South Africa effectively granted amnesty through its Truth and Reconciliation Committee; Peru just recently tried and convicted its former president for crimes committed during its struggle against Marxist rebels. There are powerful arguments supporting each path.

Still, I would hope to see Zimbabwe's Movement for Democratic Change do what is best for the country, which would be to get Mugabe and the ZANU-PF out of power. Hopefully, the MDC can resist the campaign of coercion being unleashed against it. In its place, the MDC should offer a broad amnesty, up to and including Robert Mugabe himself, in exchange for a full transfer of power to the MDC, which in all likelihood is the rightful ruling party. The amnesty should ensure that no one guilty of the crimes in question can hold political office in Zimbabwe again and that, as in South Africa, a full accounting of crimes is necessary to be granted amnesty. If such a deal can be reached, it should be taken. Anything less would be a true travesty of justice.

Obama, Human Rights, and America's Image

The election of Barack Obama as president of the United States has given hope to all those who believe the administration of George W. Bush has sullied the good name of America. Obama is going to close Guantanamo Bay, end the use of torture, sign the unsigned international treaties, rebuild America's partnerships and alliances, stop climate change, and end the war in Iraq. Just today, Obama promised to "reboot" America's image abroad. No one expresses this belief more clearly than does former President Jimmy Carter in an op-ed in today's Washington Post:

while Americans continue to espouse freedom and democracy, our government's abusive practices have undermined struggles for freedom in many parts of the world. As the gross abuses at Abu Ghraib and Guantanamo Bay were revealed, the United States lost its mantle as a champion of human rights, eliminating our national ability to speak credibly on the subject, let alone restrain or gain concessions from oppressors. Tragically, a global backlash against democracy and rights activists, who are now the targets of abuse, has followed.

...

With a new administration and a new vision coming to the White House, we have the opportunity to move boldly to restore the moral authority behind the worldwide human rights movement. But the first steps must be taken at home.

President-elect Barack Obama has pledged to shut down the detention facility at Guantanamo Bay and end torture, which can be accomplished by executive orders to close the prison and by enforcing existing prohibitions against torture by any U.S. representative, including FBI and CIA agents. The detention of people secretly or indefinitely and without due process must cease, and their cases should be transferred to our courts, which have proved their competence in trying those accused of terrorism. Further, a nonpartisan expert commission should be named to conduct a thorough review of U.S. practices related to unwarranted arrest, torture, secret detention, extraordinary rendition, abandonment of habeas corpus and related matters. Acknowledging to the world that the United States also has made mistakes will give credence to our becoming "a more perfect union" -- a message that would resonate worldwide. Together, these actions will help us restore our nation's principles and embolden others abroad who want higher moral standards for their own societies.

By putting its house in order, the United States would reclaim its moral authority and wield not only the political capital but also the credibility needed to engage in frank but respectful bilateral dialogues on the protection of human rights as central to world peace and prosperity.

To a degree, I agree with Carter. Bush most definitely has done damage to the moral reputation of the United States. However, I'm not so sure Obama will be able to do as much to fix that reputation as Carter and his ilk hope.

First, as Carter is well aware, the job of president is vastly different than the job of critic of the president. Being president means assuming responsibility for the security of the nation and the well-being of its citizens; sometimes those responsibilities demand actions that run counter to personal moral sentiments. Carter knows this first hand: He entered the White House on a "human rights first" platform, pledging to end US support of dictators simply because they weren't communist and promising to tie US foreign aid to human rights standards. He quickly learned that such a moral approach to foreign policy risked compromising strategic interests and strengthening the Soviet Union. Very quickly, Carter reversed this policy. Nonetheless, many analysts believe that the Soviet invasion of Afghanistan was, to some degree, prompted by Soviet perceptions of American weakness.

Second, rebuilding America's moral reputation may, paradoxically, require sullying it. Carter and many other human rights activists lodge their hopes for global moral improvement with the United Nations. To some degree, this makes sense. The UN is the closest thing the world has to a world parliament in which all the countries of the world can express their collective opinion. The UN has produced some of the broadest statements on human rights, such as the Universal Declaration of Human Rights and the Genocide Convention.

But that's where things get murky. While the UN may be able to produce broad statements about human rights, it is unable to do much to advance that noble cause. As Joseph Locante points out:

More than half of the 47 members of the Human Rights Council, the principal U.N. body charged with promoting human rights, fail to uphold basic democratic freedoms in their own countries. Using the canards of anti-colonialism and anti-Americanism, they block resolutions that might embarrass them on the world stage. Thus, some of the most egregious offenders of human rights--including China, Cuba, North Korea, Saudi Arabia, Sudan, and Zimbabwe--typically evade censure. Last week, for example, the Human Rights Council approved a resolution praising the Kinshasa government of the Democratic Republic of Congo, whose military stands accused of mass rape and murder.

Meanwhile, U.N. preparations for a world conference against racism, a follow-up to a controversial 2001 event in Durban, carry the familiar stigmata of moral cynicism. The U.N. planning committee includes nations such as Libya, Iran, Pakistan, and Cuba. What exactly can Iran--which defends policies that criminalize and brutalize its gay community--teach the world about combating racism? Safely inoculated against self-examination, the U.N. committee has produced a draft declaration suggesting that the United States, Western Europe and other liberal democracies are discriminatory against Islam and fundamentally racist.

The problem is, as I have written about many times here, the UN fundamentally privileges sovereign equality over liberal values. Thus, the UN finds itself forced to place North Korea and Zimbabwe on the UN Commission for Sustainable Development but unable to condemn either country for their brutality towards their citizens.

Law represents an aggregation of individual interest backed by an enforcement power. Without either of these factors, law cannot exist. If it has no ability to be enforced, it is empty; if it does not represent collective interest, it is meaningless. International law often fails on both grounds. But most importantly, because its highest principle is sovereignty, it can't truly represent collective interest. Why should anything the UN be considered legitimate simply because it represents the expressed will of illiberal regimes?

Truly advancing the cause of human rights, then, will require that the US look outside and beyond the framework of the United Nations. Just as NATO chose to intervene in Kosovo without the legal authorization of the UN because it was the right thing to do, advancing the cause of human rights demands action in Sudan, Zimbabwe, and North Korea, just to name the worst. And when the procedural rules of the UN, committed to the preservation of sovereignty as they are, get in the way, those rules must be ignored in order adhere to the true law of liberalism. Such actions will be illegal, and unpopular with many states. But to deny, as Carter and his ilk often do, that such actions are what is required to really promote human rights is disingenous.

The US need not take such actions alone. Here, Carter is correct to point to the need for allies and reputation. What makes Kosovo a legitimate violation of international law was the broad spectrum of states, and the institutional process, that authorized the intervention when the UN would not. President Obama will have to reach out to the US's ideological kin. But he will also have to violate international law. Let us be clear that such violations are necessary, and may in fact harm the US's reputation. But such harms are the price of liberalism. International law must be recognized for what it is and what it is not. It is not the tool to uplift the downtrodden; it is not the tool to bring freedom to the world's oppressed. If and when President Obama takes action to advance human rights and freedom around the world, let us not blame him when those actions break the "law."

Peace and Justice in Darfur

In the wake of the announcement back in July by the chief prosecutor of the International Criminal Court that he intended to seek indictments against the Sudanese President Omar Hassan al-Bashir, I have blogged my general inclination that such a move would be counter-productive. I am on record in several different places that, when there is a tension between the two, I tend to favor efforts to achieve peace than those aimed at creating justice. Today, the chair of the African Union, Tanzanian President Jakaya Kikwete, seems to agree with me, "Justice has to be done. Justice must be seen to be done. What the AU is simply saying is that what is critical, what is the priority, is peace. That is priority number one now...We should do the first thing first. On this basis, the AU supports deferral of the indictment." While I agree with Mr. Kikwete's final assessment, I am not encouraged by his support.

Sadly, the African Union hasn't demonstrated either the willingness or the ability to stand up for what is right. If I honestly believed that the AU was going to be involved in creating peace in Darfur, it would be appropriate for the AU to discuss easing off the pressure on Sudan. But given the AU's record (or lack of record) in standing up to Mugabe in Zimbabwe, not to mention its dismal performace in Darfur, one cannot have any faith in the AU to advance anything but its own weakness and blind support of any African dictator. It's one thing to contemplate giving up on justice in order to achieve peace; it's another thing entirely to give up on justice because one is too weak or scared to challenge the miscreant. Sudan's efforts to destroy the Fur people must be stopped, and if the price of that is letting al-Bashir walk free of international charges, so be it. But if peace is not to be achieved, then let justice be done.

To Send Aid Or Not To Send Aid, That Is The Question

In the wake of the destruction left by Cyclone Nargis in Myanmar (Burma) -- the government is announcing 23, 335 deaths and 37, 019 people missing, while international humanitarian organizations are putting the death toll at more than 100,000 and more than 1 million displaced people -- the international community is faced with a difficult decision of how best to aid the suffering people. Initially, the ruling junta obstructed relief efforts, stopping aid shipments at the airport, seizing UN food packages, and holding off US naval ships coming to help. On Friday, the junta reversed course, announcing that it would "accept aid from any corner"and allowing emergency UN food shipments to enter the country, delivering food and temporary shelters (although a shipment from the World Food Programme that arrived on Friday was seized). On Saturday, the Myanmar government began handing out food packages emblazoned with the names of the junta members and taking credit for the relief. Despite the devastation wreaked by the cyclone, the junta was intending on proceeding with a previously-scheduled "referendum" on a constitution that would further entrench the power of the junta, and the provision of aid seems to be a propaganda exercise designed to cement support for the vote.

Meanwhile, as the government controls and exploits relief supplies for its own ends, relief experts are warning of impending catastrophe if help is not provided soon:

A total of 23 international agencies were providing aid to people in the devastated areas, said Elisabeth Byrs, spokeswoman for the U.N. Office for the Coordination of Humanitarian Affairs.

Byrs said another U.N. flight with 33 tons of plastic sheets, water and sanitation items and mosquito nets got clearance to take off from Brindisi, Italy later on Saturday.

But a large number of organizations still were awaiting government clearance for more aid shipments, staff and transport.

"It's a race against the clock," Byrs said. "If the humanitarian aid does not get into the country on a larger scale, there's the risk of a second catastrophe," she said, adding that people could die from hunger and diseases.

Health experts have warned there was a great risk of diarrhea and cholera spreading because of the lack of clean drinking water and sanitation.

Also:

"We think we need to be moving 375 tonnes of food a day down into the affected areas. We are doing less than 20 percent of that," World Food Program spokesman Marcus Prior said in the Thai capital.

At the United Nations in New York, Ban delivered his most critical comments so far of the Myanmar authorities' response.

"Today is the 11th day since ... Nargis hit Myanmar," Ban told reporters. "I want to register my deep concern -- and immense frustration -- at the unacceptably slow response to this grave humanitarian crisis.

"We are at a critical point," he said. "Unless more aid gets into the country very quickly, we face an outbreak of infectious diseases that could dwarf today's crisis."

Myanmar's reclusive military government was accepting aid from the outside world, including the United Nations, but refused to admit foreign experts waiting in Bangkok for visas from the Myanmar Embassy.

Whenever humanitarian emergencies occur in the most repressive countries of the world, as is the case here or during famines in North Korea, the international community is faced with an exceedingly difficult political and moral choice: Provide aid, knowing that much of it will be diverted for use by the government and hoping that some of it will trickle down to the people, or refuse to help, believing that helping the government remain in power is the worst option. Usually, the international community chooses to help.

In this case, the decision is complicated by the blatant manipulation of the aid in connection with the constitutional referendum. If the reports are accurate, the relief effort will end up further entrenching the junta in power, now with the cloak of democratic approval. That does not bode well for the future of the Burmese people.

So what else should be done? Assuming that doing nothing is off of the table, there are really only two options: Provide relief without going through the government through airdrops or invade the country to force the government to allow access to relief experts and the depoliticized distribution of food, medicine, and shelter. None of these is really an attractive option.

Many people have begun discussing the possibility of providing aid without going through the junta. Mark Faramaner, the director of Burma Campaign UK, argued that the UN should begin providing aid throughout the country without permission from the military leaders, but Douglas Alexander, the British Secretary for International Development, argues that doing so would be "incendiary":

"Our responsibility is to make sure that our sole focus is getting the aid to the people who desperately need it."

He said carrying out forced air-drops of supplies would be the wrong action to take.

"We believe that the best way forward would be for the junta to provide access, which the whole international community - including Ban Ki-moon [secretary general of the UN] - is requesting.

"That's why we've been making direct approaches, but we've also been speaking to other governments, including the government of China, urging them that there should be a united front to say that the access needs to be provided immediately."

Even those in favor of airdropping relief supplies acknowledge that doing so may not provide relief in anything approaching an efficient manner:

Former Liberal Democratic leader Sir Menzies Campbell said air drops were a "possibility" because of the scale of the disaster, but were not the most efficient way of distributing supplies.

"I don't think we have any legal right to impose it - we might have a moral obligation.

"But I don't believe we could give effect to that moral obligation for this reason - Burma is essentially a state run by the generals with an extremely powerful army.

"Any effort to impose humanitarian aid might well be the subject of resistance which would have the effect of damaging yet more of the people of that blighted country."

Former Conservative deputy prime minister Michael Heseltine said air drops should only be considered if they could be guaranteed to be effective.

"Who is going to be at the receiving end of the air drops? It could be the Burmese army. It could be the very people least affected by the tragedy that is going on."

Meanwhile, arguments for invading Myanmar have been raised as well. Writing in the Asia Times, Shawn Crispin argues that:

A unilateral - and potentially United Nations-approved - US military intervention in the name of humanitarianism could easily turn the tide against the impoverished country's unpopular military leaders, and simultaneously rehabilitate the legacy of lame-duck US President George W Bush's controversial pre-emptive military policies.

...

In the wake of the cyclone, the criminality of the junta's callous policies has taken on new human proportions in full view of the global community. Without a perceived strong UN-led response to the natural disaster, hard new questions will fast arise about the UN's own relevance and ability to manage global calamities.

This week, French Foreign Minister Bernard Koucher suggested that the UN invoke its so-called "responsibility to protect" civilians as legitimate grounds to force aid delivery, regardless of the military government's objections. On Friday, a UN spokesman called the junta's refusal to issue visas to aid workers "unprecedented" in the history of humanitarian work.

Because of the UN's own limited powers of projection, such a response would require US military management and assets. US officials appear to be building at least a rhetorical case for a humanitarian intervention. While offering relief and aid with one hand, top US officials have with the other publicly slapped at the Myanmar government's lame response to the disaster.

...

This time, it is almost sure-fire that Myanmar's desperate population would warmly welcome a US-led humanitarian intervention, considering that its own government is now withholding emergency supplies. Like his father then, Bush is now clearly focused on his presidential legacy, which to date will be judged harshly due to his government's controversial pre-emptive military policies, waged until now exclusively in the name of fighting global terror.

In an era when the US routinely launches pre-emptive military strikes, including its 2003 invasion of Iraq, the 2003 Predator drone assassination attack against an alleged al-Qaeda leader in Yemen, a similar drone attack in 2006 in northwestern Pakistan, and last week's attack against a reputed al-Qaeda ringleader in Somalia, it is not inconceivable that the US might yet intervene in military-run Myanmar, particularly if in the days ahead the social and political situation tilts towards anomie.

Whether or not a US military intervention in the name of humanitarianism would, as in Somalia, eventually morph into an armed attempt at regime change and nation-building would likely depend on the population's and Myanmar military's response to the first landing of US troops. Some political analysts speculate that Myanmar's woefully under-resourced and widely unpopular troops would defect en masse rather than confront US troops.

While Myanmar ally China would likely oppose a US military intervention, Beijing has so far notably goaded the junta to work with rather than against international organizations like the UN, and more to the point, it lacks the power projection capabilities to militarily challenge the US in a foreign theater. Most notably, the US would have at its disposal a globally respected and once democratically elected leader in Aung San Suu Kyi to lead a transitional government to full democracy.

But, in Time magazine, Romesh Ratnesar writes that:

A coercive humanitarian intervention would be complicated and costly. During the 2004 tsunami, some 24 U.S. ships and 16,000 troops were deployed in countries across the region; the mission cost the U.S. $5 million a day. Ultimately, the U.S. pledged nearly $900 million to tsunami relief. (By contrast, it has offered just $3.25 million to Burma.) But the risks would be greater this time: the Burmese government's xenophobia and insecurity make them prone to view U.S. troops — or worse, foreign relief workers — as hostile forces. (Remember Black Hawk Down?) Even if the U.S. and its allies made clear that their actions were strictly for humanitarian purposes, it's unlikely the junta would believe them. "You have to think it through — do you want to secure an area of the country by military force? What kinds of potential security risks would that create?" says [Jan Egeland, the former U.N. emergency relief coordinator]. "I can't imagine any humanitarian organization wanting to shoot their way in with food."

So, what to do? Despite the rafts of criticism I have leveled at the institution, this is a case where the UN can potentially be a critical asset. The problem here is, of course, one of sovereignty. Myanmar is a sovereign state that has the right to determine how it receives international aid. But the UN should invoke its "responsibility to protect" doctrine (the logic that enabled the UN to retroactively approve of NATO's intervention in Kosovo) and declare that sovereignty does not confer the right to deny one's people of basic supplies and relief. The UN should, as it did in 1990, put together a global coalition of humanitarian and military forces to deliver relief supplies to Myanmar. Most of the coercive force would, of course, come from the US, but the international community could, as it did during Operation Desert Shield/Storm, bear much of the financial burden (and provide much of the relief as well). While obtaining China's assent may be difficult (China is both a patron to Myanmar and exceedingly wary of authorizing international violations of state sovereignty), the recent negative publicity of the problems in Tibet may lead Beijing to seize this as an opportunity to burnish China's image leading up to the Olympics.

The US needs to look at the disaster in Myanmar through a strategic, as well as a moral, lens. Just as US relief in the 2004 Southeast Asian tsunami was a major boost to US soft power, taking an aggressive approach to helping the victims of Cyclone Nargis can have a similar effect. The US must realize that doing the right thing here is clearly in the US national interest as well. The US should pressure China and the UN Security Council to authorize a humanitarian mission with or without official sanction. Such a move could save tens or hundreds of thousands of lives, help the US image, and even force the UN to reconsider its slavish devotion to the concept of sovereign equality. All of these are excellent goals for US foreign policy.

The Environment Versus the Poor, Part 2

In an anarchic international system in which international law is at best weak and at worst toothless and ignored, questions of duties beyond borders are difficult ones. Do states have obligations, be they legal or moral, to actors outside of their own political control? Many issues of international politics touch on this question, such as promulgation of human rights, but in no case is the problem raised more clearly than in the issue of biofuels. As I blogged about last week, there is strong evidence that the push by developed states to develop biofuels is directly contributing to recent food shortages by artificially encouraging under-production of food crops (not to mention that fact that biofuels may be worse for the environment than the fuels they replace). This has led to a call from many leading food scientists to cease producing food-based biofuels, an action which they claim could reduce the price of corn by 20% and wheat prices by 10%. So, if the actions of the developed states are causing food shortages in the developing world, does the developed world have any obligation to change its policies?

Not according to President Bush. In a recent press conference, the president called for the US to increase the use of ethanol (the leading biofuel) to reduce rising fuel prices and to reduce American energy dependence. According to Bush, "it's in our national interest that our farmers grow energy, as opposed to us purchasing energy from parts of the world that are unstable or may not like us."

While other states are moving away from the production of biofuels, the US is by far the largest global producer, so unless the US does so as well, there is likely to be little impact on prices (not to mention that collective action problems will dissuade others from stopping production if the US won't). The impact of biofuel production on food prices is disputed: President Bush asserted that 15% of the recent rise is due to biofuels, while the US Department of Agriculture put the number at 20%. Furthermore, "a soon to be released International Food Policy Research Institute analysis blames 30 percent of the overall food price rise from 2000-2007 on biofuels, while a [biofuel] industry-funded study put the food cost rise at 4 percent."

This is an excellent illustration of many of the problems that make international relations so fascinating and so frustrating. Today's globalized and interdependent world has certainly changed the contours of the notion of obligation -- even if one doesn't believe in moral or legal obligations, the notion of economic and political interdependence connects obligation to national interest in a powerful way. States that ignore the needs of others in one issue area can be made to pay a high price in a different issue area. For example, the west's inability to lift domestic agricultural subsidies gave the developing world the leverage to refuse to agree to new market openings at the recent Doha round of WTO negotiations. Simply being wealthier and more powerful isn't enough to get one's way in a globalized world.

Additionally, policy imperatives compete, and often conflict, with one another. Leaving aside the likely irony that biofuels are worse for the environment than fossil fuels, how do states decide between competing obligations? Do we save the environment if doing so means condemning people to starvation or depriving the developing world with the means to develop? Needless to say, answering these questions is a unenviable task.

In this case, the US needs to end incentives for biofuel production immediately. It's one thing to make a hard choice to pursue one agenda at the expense of another; it's another thing entirely when pursuing one agenda is entirely counterproductive. Given the evidence that biofuels are worse for the environment, it seems like that the US program to encourage their production is more a sneaky way to protect the US agricultural market than a genuine effort to save the planet. And given the impact that this protection is having on the global food market, that choice isn't just bad politics, it's just plain bad.

The Environment Versus the Poor

In the wake of Earth Day, and in the run-up to the conference on energy dependence and aviation this Friday here at UPS, is the need to confront the stark truth that goods in the world are scarce and that attending to one concern often produces unintended consequences. Case in point: the mounting evidence that the production of biofuels is greatly contributing to rising food prices, food shortages, and even widening hunger and starvation in the developing world. According to the New York Times:

The food crisis is not only being felt among the poor but is also eroding the gains of the working and middle classes, sowing volatile levels of discontent and putting new pressures on fragile governments.

In Cairo, the military is being put to work baking bread as rising food prices threaten to become the spark that ignites wider anger at a repressive government. In Burkina Faso and other parts of sub-Saharan Africa, food riots are breaking out as never before. In reasonably prosperous Malaysia, the ruling coalition was nearly ousted by voters who cited food and fuel price increases as their main concerns.

“It’s the worst crisis of its kind in more than 30 years,” said Jeffrey D. Sachs, the economist and special adviser to the United Nations secretary general, Ban Ki-moon. “It’s a big deal and it’s obviously threatening a lot of governments. There are a number of governments on the ropes, and I think there’s more political fallout to come.”

Indeed, as it roils developing nations, the spike in commodity prices — the biggest since the Nixon administration — has pitted the globe’s poorer south against the relatively wealthy north, adding to demands for reform of rich nations’ farm and environmental policies. But experts say there are few quick fixes to a crisis tied to so many factors, from strong demand for food from emerging economies like China’s to rising oil prices to the diversion of food resources to make biofuels.

It's the last that is of particular concern as governments are encouraging and subsidizing the production of biofuels as a means of reducing emissions responsible for global warming. The problem is that government involvement is distorting the market, as subsidies for biofuels artificially change the market incentives to convert farm crops into biofuels and to replant cropland to produce grains for biofuel production. These decisions then raise the global price of food staples that, particularly in the developing world, contribute to food shortages, riots, and starvation. According to the International Food Policy Research Institute:

biofuel production accounts for a quarter to a third of the recent increase in global commodity prices. The Food and Agriculture Organization of the United Nations predicted late last year that biofuel production, assuming that current mandates continue, would increase food costs by 10 to 15 percent.

Of course, there are other factors contributing to the rising cost of food. Escalating oil prices raise the price of transport, burgeoning populations and improving economic conditionks have increased demand, and droughts and other disasters have destroyed production. But costs accruing from biofuel production are entirely within the ability of the developed world to control. Furthermore, there is little evidence that biofuels do, in fact, contribute positively to the regulation of global warming. According to a New York Times article from February 8, 2008, biolfuels may be more harmful to the environment that the fuels they replace.

Almost all biofuels used today cause more greenhouse gas emissions than conventional fuels if the full emissions costs of producing these ''green'' fuels are taken into account, two studies published Thursday have concluded.

The benefits of biofuels have come under increasing attack in recent months, as scientists took a closer look at the global environmental cost of their production. These latest studies, published only by the journal Science, are likely to add to the controversy. These studies for the first time take a detailed, comprehensive look at the emissions effects of the huge amount of natural land that is being converted to cropland globally to support biofuel development.

The destruction of natural ecosystems -- whether rain forests in the tropics or grasslands in South America -- not only releases greenhouse gases into the atmosphere when they are burned and plowed, but also deprives the planet of natural sponges to absorb carbon emissions. Cropland also absorbs far less carbon than the rain forests or even scrubland that it replaces.

Together the two studies offer sweeping conclusions: It does not matter if it is rain forest or scrubland that is cleared, the greenhouse gas contribution is significant. More important, they discovered that, globally, the production of almost all biofuels resulted, directly or indirectly, intentionally or not, in new land's being cleared for food or fuel.

''When you take this into account, most of the biofuel that people are using or planning to use would probably increase greenhouse gases substantially,'' said Timothy Searchinger, lead author of one of the studies and a researcher in environment and economics at Princeton.

So, if biofuels are actually harmful to the environment and contribute to hunger and starvation in the developing world, why would governments encourage their production? Because biofuels subsidies are politically popular. As pressure increases on the governments of the US, Europe, and Japan to lift the agricultural subsidies that undermine development, biofuels have emerged as a way to protect the politically important farm constituency without appearing to do so. But a market distortion is a market distortion. Even discounting the non-beneficial nature of biofuels, clearly if their production was left to the market, farmers would be producing food instead. That is reason enough for the governments of the developed world to stop subsidization and incentive programs.

Trading Darfur For Tibet

With the uproar over the Chinese crackdown on Tibetan pro-independence/autonomy protests, the hubbub over the Olympic torch relay, and the to-do over the Dalai Lama's visit to the US, it's no wonder that the 2008 Beijing Olympics are being referred to as the "Tibet Olympics." As world leaders debate whether to boycott, or just skip, the Opening Ceremonies or the Games themselves, more and more attention gets turned to the cause of Tibet.

To the detriment of Darfur.

Before the protests in Tibet broke out, the Beijing Olympics were supposed to be the "Darfur Olympics." Much attention was paid to China's role as Sudan's patron and protector in the UN Security Council; Mia Farrow and Steven Spielberg criticized the Chinese government; I even spoke at a rally sponsored by SaveDarfur here in Tacoma about China's role in Sudan and what might be done. And the campaign seemed to be paying off. As I blogged last April:

after two years of shielding Sudan from international sanctions over the situation in Darfur, China has recently begun applying more pressure to Sudan.

Just when it seemed safe to buy a plane ticket to Beijing for the 2008 Olympic Games, nongovernmental organizations and other groups appear to have scored a surprising success in an effort to link the Olympics, which the Chinese government holds very dear, to the killings in Darfur, which, until recently, Beijing had not seemed too concerned about.

Groups focusing on many issues, including Tibet and human rights, have called for boycotts of the Games next year. But none of those issues have packed the punch of Darfur, where at least 200,000 people — some say as many as 400,000 — mostly non-Arab men, women and children, have died and 2.5 million have been displaced, as government-backed Arab militias called the janjaweed have attacked the local population.

But now, all that attention has shifted to Tibet. The situation in Darfur continues to worsen, but the pressure is now off China to do anything to reverse things there. Political capital and the energy needed to motivate protests is, of course, limited. It may be that the media, non-governmental organizations, protesters, and the general public only have the resources to focus on one issue. If so, it seems as if Tibet has won out over Darfur for linkage with the 2008 Beijing Olympics.

But that would be a mistake. If only one cause can be aggressively championed (or even if championing both detracts from each), that cause should be Darfur. Not because the Darfuris are more worthy of protection that are the Tibetans, not because the situation is worse in Darfur (although a strong case could probably be made for that argument), not for any reason other than practicality. China is much more likely to yield to pressure over Darfur than it is over Tibet. Sudan represents important political and economic interests for China; Tibet represents sovereignty. China will, most likely, never cede Tibet. Greater autonomy is possible, but not in the short term. Using the Olympics to pressure and shame China into leaning on Sudan to moderate its behavior in Darfur seemed to be paying off. Using the Olympics to pressure and shame China into backing off Tibet is only likely to alienate and anger Beijing.

It would truly be a shame if an opportunity to help the people of Darfur went unrealized so that people can vent their anger over Tibet. The Tibetan people may very well deserve independence and our support. But not in ineffective protests that distract from and obstruct progress over Darfur.

What is Justice in Uganda?

The dispute between Uganda and the International Criminal Court over the status of the indictments of Joseph Kony and other leaders of the Lord's Resistance Army has reached a crucial point. Yoweri Musevni, the president of Uganda, has announced that Uganda will refuse to hand Kony and the others under indictment over to the ICC so that a peace deal, including an agreement for Kony and others to face local, Ugandan courts, can be struck. The ICC issued the indictments when Uganda, an ICC signatory, referred the case to the ICC in 2005 and Uganda is now obliged, as a result of its accession to the ICC, to arrest Kony and his lieutenants and remand them to ICC custody. Now, Uganda believes that that obligation is an obstacle to peace, as Kony has little incentive to end his rebellion and sign a peace deal if doing so will result in his arrest and trial in international court. Uganda has asserted the right to withdraw its request for ICC involvement, since Uganda requested the ICC's participation, but, according to the Guardian article linked above:

Richard Goldstone, the former chief prosecutor for the Bosnia and Rwanda international tribunals which laid the ground for the ICC, has said that if Museveni gets his way it would be "fatally damaging to the credibility" of the court.

"I just don't accept that Museveni has any right to use the international criminal court like this," he said last year. "If you have a system of international justice you've got to follow through on it. If in some cases that's going to make peace negotiations difficult that may be the price that has to be paid."

Last week, the ICC prosecutor, Luis Moreno-Ocampo, refused to meet representatives of the LRA and said the indictments still stand.

The LRA is, unquestionably, deserving of punishment far beyond what a civil court can dish out. The LRA is infamous for abducting children and using drugs and terror to enslave them into their ranks, hacking off people's arms, legs, and even lips and eyelids, forcing children to rape and murder their parents, among other documented and reported atrocities. But should the desire to visit punishment and retribution on these monsters win out over the desire to resolve a long-running conflict that has killed, maimed, and dislocated thousands? Should the desire of the ICC and the international community outweigh the request of the Ugandan government to settle this conflict as it sees fit?

Over at Opinio Juris, Julian Ku and Kevin Jon Heller have been going back and forth on this issue. Julian sees the ICC as "an obstacle to peace," where Kevin argues that "it is difficult to argue that the ICC should simply step aside and leave the Ugandan government and the LRA to their own devices." According to Kevin:

There is obviously no guarantee that the two sides, once freed from ICC oversight, will negotiate a peace that is genuinely acceptable to ordinary Ugandans. Indeed, the evidence to date indicates otherwise. And, of course, the Court will suffer significant and potentially irreparable harm if it rewards the combined Uganda/LRA temper tantrum: as John Boonstra noted today (also at UN Dispatch), "[i]f the ICC is seen as capitulating to the demands of its host government — or worse, to those of an indicted war criminal — a dangerous precedent will be set for the court's work elsewhere."

What, then, is the right answer? It seems to me that the answer lies in the ICC's principle of complementarity. Given that ordinary Ugandans favor traditional justice for low-level perpetrators and criminal prosecution for high-level perpetrators, the Court should insist on two things: (1) that the Ugandan government and the LRA revert back to their original plan to try Kony and the other LRA leaders in Uganda's High Court; and (2) that the Ugandan government revamp its criminal justice system to satisfy the principle of complementarity. At that point — and only at that point — should the ICC step aside.

The principle of complementarity to which Kevin refers above is:

The International Criminal Court will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes.

If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute.

A country may be determined to be "unwilling" if it is clearly shielding someone from responsibility for ICC crimes. A country may be "unable" when its legal system has collapsed.

I think Kevin has set the bar a bit too high here, but his general point is a good one. Uganda has acceded to the Treaty of Rome, creating a clear jurisdiction for the ICC. The ICC should be more deferential to the needs of its members, particular in cases where indictments may be barring the road to settling a conflict (or convincing a leader to step down). And while it's right for the ICC to insist on some level of serious prosecution, the presumption should favor Uganda. A desire to lightly punish, or even perhaps pardon, Kony in order to end the conflict should not be seen as unwilling, so long as the settlement is real. If that's the price of ending the conflict, and if Uganda is willing to pay that price, the ICC should not stand in the way. If, however, Uganda was to pardon Kony and his underlings without a real end to the conflict, then the ICC would be right to maintain its insistence on carrying out the arrest warrants.

This is a difficult test case for the ICC and the expansion of international law more generally. As the example of Uganda shows, politics is often too complicated for generalized international law to deal with simply. And while law must not be ignored, it also must not be allowed to stand in the way of ending one of the more brutal rebellions on the planet.

The Logic Of Torture

There are two main reasons that people are opposed to the use of torture in the interrogation of suspected terrorists. First, the moral argument: Torture is a violation of liberal moral and ethical norms. The use of violence and cruelty by the state betrays our most deeply held values and ideals. Second, the pragmatic argument: Torture doesn't work, so it's not worth the damage to a country's public image. In this argument, a suspect being subjected to torture will say anything and everything to end the ordeal, and therefore evidence procured through torture is useless.

Interestingly, while the first argument may be the most powerful, many anti-torture advocates have moved to the second argument, primarily because the first leaves room for a utilitarian calculus. Yes, torture may be abhorrent to our liberal norms, but if, in extreme circumstances, such as the "ticking time bomb" scenario, the use of torture can prevent a large number of deaths or protect the larger fabric of society, its use may be justified. So, to avoid such leaving open such a possibility, many arguments against torture make the pragmatic argument: Torture doesn't work, and its use is damaging to the soft power of a liberal democratic state (as happened in the Abu Ghraib incident).

I have blogged many times (here, here, and here, for example) about torture and how I do not buy the logic of the pragmatic argument. Simply put: If torture doesn't work, then why is its use even a question? If it's so obvious to everyone that torture produces false confessions and made-up evidence, then why would those tasked with preventing terrorism and protecting their countries even want to use torture? Why would they waste their time pursuing false leads? It simply makes no logical sense. I have much more sympathy for the moral argument, although I also find logic in the argument for allowing the use of coercive interrogation tactics (and no, this is not just a euphemism...I'll explain more about this below) in certain circumstances.

So, I was quite excited for a lecture by Yohai Kitron, the former Chief of Interrogation of the Shabak (the Israeli FBI, more or less, also known as the Shin Bet) entitled The Failed Logic of Torture. At last, I thought, I'd get the real answer as to why torture is ineffective.

Mr. Kitron, however, did not make that argument. First, he differentiated between torture, which is the sadistic use of cruelty, and coercive interrogation, which is the controlled use of violence (or the threat of violence) to further an interrogation by undermining the mental safety and security of the suspect. Mr. Kitron claimed that while coercive interrogation is no more effective than non-coercive methods, it is most certainly faster. Thus, Israel now only uses coercive methods in "ticking bomb" scenarios, for example if a suspected terrorist in custody is believed to have information about a suicide bomber on his way to a target.

In such scenarios, the interrogator does not, under any circumstances, have the authority to use coercive methods on his own account. Rather, the interrogator must seek permission from the Legal Department of the Israeli Army, which is in turn subordinated to the Attorney General's office. Each interrogator bears personal responsibility for any force used; even if the circumstances dictate an ex post justification, such as the claim that there wasn't time to seek authorization, the interrogator will be reprimanded and punished, severely when the use of force cannot be justified (Kitron spoke of two Shin Bet officers sentenced to 8 years in prison for the unauthorized use of coercive interrogation).

Kitron emphasized the difference between an investigation and an interrogation. An investigation has a much longer time line, and is intended to produce information to further counter-terrorism and prevention efforts. An interrogation is when time-sensitive information is sought, such as to prevent an imminent terror attack. Coercive interrogation techniques can and should only be used in interrogations and only when the interrogation is necessary to prevent death. Coercive methods are not likely to be helpful in investigations, as suspects can provide much less specific information that may not be able to be verified and thus are more likely to say anything to end their ordeal.

Kitron was clear that coercive methods are immoral and damaging both to the society and the individual that uses them. Using them too often threatens to undermine democratic norms, damage the public image of the country, and do serious damage to the fabric of a democracy. However, just as the failure to protect individual rights undermines democracy, so does the failure to provide security. In a country that has suffered a sustained campaign of suicide bombings, rocket attacks, kidnappings, and other attacks against its citizens and soldiers, it's not hard to see why a method that might help prevent such attacks would be used, even if it is morally questionable.

However, the US is not Israel. There are few scenarios in which coercive methods would be needed by US security forces. There is no sustained campaign of suicide attacks within this country, no steady rain of rockets on our towns. Most of the time when terror suspects are in custody it is an investigation, not an interrogation. In these cases, as Kitron made clear, a good investigator can get the same, if not better, information using non-coercive, non-violent methods, and thus it's not worth the damage to American democratic norms, liberal ideals, and public image to use violence, coercive methods, or torture.

However, the option needs to be left open in case the scenario presents itself where a terrorist in custody does have knowledge of an imminent attack. This seems to be the result of the anti-torture amendment passed by Congress and signed by the president in December 2006. Torture is not allowed, although coercive interrogation techniques are still on the table. The president needs to realize the damage that even coercive interrogation can do to the US public image, and reserve its use for only the most drastic and critical of situations.

How To Talk About Torture

GOP presidential candidates Mitt Romney and Rudolph Giuliani are in hot water after making remarks indicating that both would support, to some degree, coercive interrogation techniques. In a candidates debate in South Carolina yesterday, Romney indicated that he would support doubling the size of the prison at Guantanamo Bay and continuing to deny suspects access to legal counsel, while Giuliani, said that extreme interrogation techniques, including waterboarding, should be used if there is an attack against the US being planned.

There have been many discussions on this blog about the wisdom of using torture or other coercive interrogation techniques, and I don't want to re-open that discussion now. What concerns me here is the response to these comments by Curt Goering, deputy executive director of Amnesty International USA. Goering (and what a terrible last name for someone in his position) responded by saying "The pandering for votes by advocating human rights violations represents the worst by American politicians."

But why is this pandering? Because Goering disagrees with him? Aren't the candidates who disavow torture or other coercive methods just as likely to be pandering for votes (albeit to a different voting bloc)?

This, in a nutshell, is one of the problems I have with domestic politics. There is so little room for serious and principled disagreement. Goering cannot admit that there may be any validity to Giuliani's position, so Giuliani and everyone else who agrees with it can't possibly believe what they say or think that such actions are actually what is best for the country, but rather must be pandering for votes. If Goering wants to disagree with Giuliani, fine. We all know that Amnesty International doesn't support torture, and they most certainly have some good reasons in their quiver. But reducing political discourse to dismissive comments is a subversion of the political process itself.

Our Soldiers' Ethics

The Department of Defense has released the findings of its first study of the ethics of troops involved in combat, and the results are disturbing. The results included:

_Sixty-two percent of soldiers and 66 percent of Marines said that they knew someone seriously injured or killed, or that a member of their team had become a casualty.

_The 2006 adjusted rate of suicides per 100,000 soldiers was 17.3 soldiers, lower than the 19.9 rate reported in 2005.

_Only 47 percent of the soldiers and 38 percent of Marines said noncombatants should be treated with dignity and respect.

_About a third of troops said they had insulted or cursed at civilians in their presence.

_About 10 percent of soldiers and Marines reported mistreating civilians or damaging property when it was not necessary. Mistreatment includes hitting or kicking a civilian.

_Forty-four percent of Marines and 41 percent of soldiers said torture should be allowed to save the life of a soldier or Marine.

_Thirty-nine percent of Marines and 36 percent of soldiers said torture should be allowed to gather important information from insurgents.

_Less than half of Marines and a little more than half of Army soldiers said they would report a member of their unit for killing or wounding an innocent civilian.

Much of this isn't surprising, especially the soldiers' attitudes towards torture. First, soldiers, of course, will want to do whatever is in their power to do in order to save the lives of their comrades. That's what makes them fight in the first place. And, as there is a legitimate debate over the use of torture, I'm not so sure this should been as disturbing as some of the other revelations.

But the responses indicating widespread tolerance of abusive behavior towards non-combatants is highly problematic, particularly in a war where the battle for the "hearts and minds" is just as important as the gun battles. One certain lesson of Vietnam was that brutality towards the peasantry made the people more willing to tolerate, or even collaborate with, the enemy. This is perhaps even more true in Iraq, where the only hope for success rests on Iraqi citizens choosing to side with the government rather than the militias or al Qaeda, and if they fear the US military or have been brutalized by it, that choice becomes an easier one to make.

Not to sound like a broken record, but this again points up the need for a new type of US soldier. It may be problematic, but it shouldn't be surprising that a soldier trained to kill his enemy will, particularly in a urban/insurgent type of conflict, not be tolerant or kindly to those he may suspect of cooperating with the enemy. Soldiering is a business that those (myself included) who haven't done it cannot begin to comprehend, and the stress that must come with combat is even more unimaginable. It is unfair to take soldiers trained to kill or be killed and ask them to act like policemen. The rules of engagement are different. The jobs are different. And the training is different.

The Defense Department will hopefully be spurred into action by this report. Soldiers are of course still necessary to conduct combat operations. But many of the tasks that our soldiers are asked to do are not those for which they are trained. Our military needs to recognize this fact and begin training troops to be peacekeepers, policemen, and nation builders. This report is just one indication of the damage that may occur if our armed forces cannot adapt to the new missions expected of them.

Pasta-Eating Surrender Monkeys

After experiencing brutal international criticism for engineering a swap of imprisoned members of the Taliban for the release of an Italian reporter who had been kidnapped in Afghanistan, Italy has figured out how to ensure such controversy will not occur again. Italy's foreign minister, Massimo D'Alema, has proposed that NATO and the UN develop guidelines for how how states should respond to hostage crises. According to the foreign minister, "it's time to explore the possibility of guidelines shared on an international level, a code of shared behaviour" that would create rules for when states would negotiate the release of kidnapped citizens.

The idiocy of this is simply staggering. The Taliban have, since the deal with the Italian government, seized two French aid workers and their three Afghani companions in an effort to extract similar concessions from France. Furthermore, the Taliban reneged on the deal, only releasing the reporter and not the driver and translator who had also been seized (and have since been beheaded). It's bad enough when states capitulate to kidnappers and terrorists, but creating pre-existing guidelines would simply establish the legitimacy of the seizures and ensure that more would occur.

At least the cheese-eating surrender monkeys have some company.

Recasting The Darfur Debate

The US State Department has named the on-going genocide in Darfur the world's worst human rights abuse of 2006. The just-released 2006 Country Reports on Human Rights Practices noted that "the Sudanese government and government-backed janjaweed militia bear responsibility for the genocide in Darfur" and that "all parties to the conflagration committed serious abuses, including widespread killing of civilians, rape as a tool of war, systematic torture, robbery and recruitment of child soldiers." The reappearance of the word "genocide" is particularly notable; it was first used in reference to Darfur in 2004 by then-SecState Powell, but has largely disappeared from official reports and speeches on the situation.

The US Special Envoy for Darfur, Andrew Natsios, is scheduled to meet with Sudanese President Omar al-Bashir two days from now in an effort to convince al-Bashir to allow UN/AU peace keepers to increase their presence in the region. However, there are no signs of a imminent reversal by Sudan, which has to date steadfastly refused to allow a larger and better-equipped force into Darfur to protect the people there.

So, what the US do? While China has been willing to press Sudan a bit, it is unlikely that China (or Russia for that matter) would ever permit the Security Council to authorize an intervention without the acquiescence of the Sudanese government. Therefore any international action to protect the people of Darfur is likely to be, a la Kosovo and Iraq, conducted outside the bounds of the UN and international law. Given the experience of the US in interventions over the last 15 or so years -- Somalia, Rwanda, Bosnia, Haiti, Iraq, Afghanistan -- there is likely to be little stomach for an armed intervention. Even the success of Kosovo is more an exception that proves the rule, as Kosovo was a more traditional "war" involving state-against-state violence, while an intervention in Sudan is more likely to resemble Somalia or Rwanda.

Some people point to the recent breakthrough with North Korea as evidence that sanctions can work, particularly in the globalized world. But North Korea is more of unique case that I'm not sure can be applied to Sudan. North Korea has little to export the world, while Sudan has resources and oil. North Korea is politically and economically isolated, making it easier to close the flows, while Sudan is not.

If a military intervention is the only likely way to end the genocide and protect the long-suffering people of Darfur, how can the US overcome its reluctance to engage in these kinds of humanitarian operations? In a presentation I gave this past weekend to the local Darfur Action Group, I talked about how the discussion needs to be recast. Talking about the horrors and atrocities may help raise public awareness and sentiment, but it's not going to convince policy makers that action should be taken. The debate needs to be less about why Darfur is worthy of intervention, and more about why intervening in Darfur should be understood as part of US national interest.

Why should the US risk its soldiers and treasure to protect the people of Darfur? In Somalia, there was no clear answer to this question, and so when 18 US Rangers were killed, the country and the president lost their nerve and withdrew. If the US is to take action in Darfur, it must be made clear to the American public and decision makers that the action is the American interest and that US soldiers should die to protect the people of Darfur. I believe that case can be made. There are lots of ways that protecting innocent people being slaughtered by their government is in the US interest. There are lots of ways that stabilizing a volatile region is as well. President Bush in particular has shown himself to be open to this kind of argument; unfortunately, much of its force has been discredited by the debacle in Iraq.

But Darfur should not be forgotten. This country has a strong and vital interest in ensuring "Never Again."

The Lessons of MLK for IR

As I enjoy one last day of winter break before the Spring semester begins tomorrow, I thought it appropriate to think a bit on this day in honor of Martin Luther King about the lessons from MLK that can be applied to international relations. Focusing on the outstanding "Letter from a Birmingham Jail," written in response to a critique of non-violent confrontation instead of continued negotiation published by eight clergy, we find the essence of MLK's strategy of non-violence:

In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self-purification; and direct action. We have gone through an these steps in Birmingham. There can be no gainsaying the fact that racial injustice engulfs this community. Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation. These are the hard, brutal facts of the case. On the basis of these conditions, Negro leaders sought to negotiate with the city fathers. But the latter consistently refused to engage in good-faith negotiation.

Then, last September, came the opportunity to talk with leaders of Birmingham's economic community. In the course of the negotiations, certain promises were made by the merchants --- for example, to remove the stores humiliating racial signs. On the basis of these promises, the Reverend Fred Shuttlesworth and the leaders of the Alabama Christian Movement for Human Rights agreed to a moratorium on all demonstrations. As the weeks and months went by, we realized that we were the victims of a broken promise. A few signs, briefly removed, returned; the others remained.

As in so many past experiences, our hopes had been blasted, and the shadow of deep disappointment settled upon us. We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community. Mindful of the difficulties involved, we decided to undertake a process of self-purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves : "Are you able to accept blows without retaliating?" "Are you able to endure the ordeal of jail?" We decided to schedule our direct-action program for the Easter season, realizing that except for Christmas, this is the main shopping period of the year. Knowing that a strong economic with withdrawal program would be the by-product of direct action, we felt that this would be the best time to bring pressure to bear on the merchants for the needed change.

...

You may well ask: "Why direct action? Why sit-ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling, for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent-resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, we must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.

...

One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: "Why didn't you give the new city administration time to act?" The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act. We are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo. I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation. But he will not see this without pressure from devotees of civil rights. My friends, I must say to you that we have not made a single gain civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct-action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant 'Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."

...

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may won ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there fire two types of laws: just and unjust. I would be the Brat to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all"

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distort the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I-it" relationship for an "I-thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression 'of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?....

When reading King's forceful defense of the need for non-violent confrontation, I cannot but help think of the Palestinians. It is not difficult to imagine that an approach that relied less on rockets, kidnappings, and suicide bombs would have already resulted in an independent Palestinian state. For all its brutality and unjustness in the treatment of the Palestinians, Israel is a liberal democracy that realizes the contradictions and problems that result from the occupation. Oppressing the Palestinians rips at the moral soul of the country and its people every day. But, when people feel threatened, when their children are kidnapped or murdered, when missiles slam in to their homes, when sitting in a coffee shop becomes an adventure in risk taking, injustice can be explained away as necessary self-defense.

If Palestinians were lying down in front of Israeli bulldozers, chaining themselves to their olive trees, conducting sit-ins in Jewish settlements in the territories, would Israel react differently than did the US during the civil rights era? It seems unlikely. Instead, however, Palestinians turned to violence almost from the beginning of Israel's history, even before the occupation of the West Bank and Gaza in the 1967 war.

It will be interesting to see what difference the security fence being built in the West Bank will have. By most accounts, suicide bombings in Israel have nearly stopped and 2006 saw the fewest Israeli deaths in six years. The withdrawal from Gaza, which was already fenced off from Israel, and the construction of the fence have made it exceedingly difficult for Palestinians to infiltrate themselves into Israel. As Israeli casualties drop and Israelis begin to feel more secure in their everyday lives, they very well be more willing to consider the plight of the Palestinians. As Palestinians find that violence is a less effective strategy, perhaps they might turn to a MLK-like program of non-violent confrontation to force the issue.

As King noted, "freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed." Hopefully, the Palestinians can learn, or be taught, that violence is not an effective demand.