Category Archives: Ameryke

Earthbound skyhooks: Rawls and Dworkin

I’ve been wondering what it is that underlies my difficulties with both Dworkin and Rawls. After reading Ely’s paper on Dworkin, in particular, I’ve come to the conclusion that it’s an American thing. By which I don’t mean that it’s a legacy of of trends in American philosophy, enduringly marked by the influence of Emersonian Transcendentalism on one hand and Dewey’s Pragmatism on the other – although these are both distinctly alien to the British temperament, not least in their common emphasis on the unchallengeable meaningfulness of subjective experience. The history of American legal philosophy is similarly idiosyncratic, from a British standpoint. Hart characterises American legal theory as oscillating between the Realists’ “nightmare” of complete indeterminacy and entirely judge-made law, at one extreme, and Dworkin’s “noble dream” of a seamless web of laws and legal principles at the other. (Although on reflection the opposition may be more apparent than real. Dworkin pictures legal decisions being made by an omniscient judge called Hercules, who synthesises all the law there is based on the best and most appropriate principles. If Hercules is to be anything more than a figure of speech, somebody actually has to play that role and, in practice, make law. And in practice, as Ely points out, Dworkin’s own footwork is as nimble as any Realist’s.)

So if American philosophers, and legal philosophers, tend in their different ways to approach the world in a wide-eyed spirit of “how does this look to me, here, now?”,  you can see how that might grate on a British ear. (I’m flashing back to my only attempt to read Zen and the Art of Motorcycle Maintenance, which I gave up at the point when the book’s teenage protagonist starts angrily disproving Plato – I was a teenager myself at the time, but I wasn’t buying that. See also Ayn Rand.)

But the point about Rawls and Dworkin is a bit different. Take Ely’s (instructive and entertaining) paper on Dworkin: it begins by asking, not how Dworkin can justify opposing racial discrimination while supporting affirmative action, but how he can justify the opinion that the decision in DeFunis v. Odegaard should be upheld as constitutional while that in Sweatt v. Painter should not. Dworkin was working (as was Ely) in the specific field of US constitutional law, and this gives his work a particular character. The task is not – as it might be for a British legal philosopher – to trace the development of a legal principle through its various imperfect expressions (in legislation and in court rulings), but to work with two distinct sets of ideas. On one hand there is the ideal – whatever the philosopher him- or herself holds to be just, true and good, e.g. the principle that government should be empowered to limit working hours or that heterosexuality should not be treated as compulsory. On the other there is: the Constitution. On one hand, the skyhooks of philosophical idealism (in both senses of the word); on the other, the Founding Fathers and what they thought was appropriate – or, more realistically, the end result of what they variously put forward as appropriate and collectively agreed not to strike out as inappropriate – to the needs of an eighteenth-century settler republic. Find an approximation to A somewhere in the text of B and you’re made. Find not-A (the exclusion or denial of A) in the text of B and you’ve got a job to do. Either way, the task at hand is not, in practice, to bring out anything immanent to the law but to knit together these two enormously disparate sources. You can’t work without a sense of what seems right to you, here, now, but at the same time you can’t work without reference to the text of the US Constitution, or the plausibly imputed intentions of its authors (or some more complex reading). Earthbound skyhooks.

This background doesn’t apply directly to Rawls (who WNAL), but it does seem to relate to something I find extraordinarily difficult in his thinking – and which, I think it’s fair to say, Hart struggled with as well. I understand the image of the ‘original position’, with individuals collectively deciding on the shape of society behind a ‘veil of ignorance’ as to who they are, what aptitudes and preferences they have and what role they would have in the eventual society. From this it is possible to derive a ‘general conception of justice’, representing the principles the parties to the original position would choose. So far so good: these are good tools to think with. But when Rawls goes on to say (here I’m quoting Hart quoting A Theory of Justice) that the general conception would mandate that

All social values, liberty and opportunity, income and wealth, and the bases of self-respect, are to be distributed equally unless an equal distribution of any, or all, of these values is to everyone’s advantage.

I feel like I’ve wandered into the wrong class. “Er, Professor? Did you say ‘wealth’ just now? Did you say, er, ‘income‘?” (Benign smile from professor. Brighter students shake their heads and tut wearily – hey, it’s a Trot, just what we needed…) We’re on a pretty high plane of abstraction, up there behind the veil of ignorance, but apparently money isn’t one of the things we’re higher than. Nor, it turns out, is politics. One of Rawls’s basic liberties – those liberties which (in Hart’s words) are “identified by the parties in the original position … as essential for the pursuit of their ends, whatever their ends turn out to be” – is the right to run for elected public office. In fact – and at this point I very nearly gave up trying to understand Rawls, even with the aid of Hart – we haven’t even left political procedure behind (beneath?) us: “when the parties in the original position have chosen the principles of justice, they move to a constitutional convention … [where] they choose a constitution and establish the basic rights of citizens”.

I’m feeling dizzy – pass me the Schutz.

The puppet exists and acts merely by the grace of the scientist; it cannot act otherwise than according to the purpose which the scientist’s wisdom has determined it to carry out. Nevertheless, it is supposed to act as if it were not determined but could determine itself. A total harmony has been pre-established between the determined consciousness bestowed upon the puppet and the pre-constituted environment within which it is supposed to act freely, to make rational choices and decisions. This harmony is possible only because both, the puppet and its reduced environment, are the creation of the scientist. And by keeping to the principles which guided him, the scientist succeeds, indeed, in discovering within the universe, thus created, the perfect harmony established by himself.

Better. And breathe.

Rawls – like Dworkin – takes what appears to be a very different and much more worldly approach than a frank utopian like Nozick, but on inspection there’s something quite different – and stranger – going on than a simple opposition between utopianism and realism. The difference between Nozick and Rawls isn’t that Nozick built castles in the air; it’s that when Rawls built his castles in the air, he built them on the ground.

I’ll explain. The thing is, when real people hold a real constitutional convention, all kinds of strange and unpredictable things happen: few could have anticipated the respective roles played by the Partito Comunista Italiano and the centrist Partito Socialista dei Lavoratori Italiano in formulating the Italian law on divorce, for example. (I talk about this in my book.) When imaginary people who don’t know who they are decide on their general conception of justice, the philosopher can know exactly what happens – because it’s not actually a thing that does happens, or can happen: it’s just a way of talking about the factors which in reality hinder the adoption of a conception of justice acceptable to all, and ex negativo what the features of that conception of justice would be. So, as for what happens when imaginary people who don’t know who they are hold a constitutional convention… my head hurts. The question seems meaningless, or badly-formed – as if one were to ask what would happen if dogs started demanding the vote. I spy earthbound skyhooks.

But enough about me – let’s talk about the greatest legal philosopher of the twentieth century, and what he thought of John Rawls.

Hart, Nozick, Dworkin (in that order)

There was an old person of Ware,
Who rode on the back of a bear:
When they ask’d, – ‘Does it trot?’–
He said ‘Certainly not!
He’s a Moppsikon Floppsikon bear!’
Edward Lear

Another couple of notes on current reading.

Herbert Hart’s essays “Between utility and rights” and “Rawls on liberty and its priority” make some interesting critical points on Nozick, Dworkin and Rawls – to be precise, the Nozick of Anarchy, State and Utopia, the Dworkin of Taking Rights Seriously and the Rawls of A Theory of Justice. I’ll cover Nozick (again) and Dworkin in this post, Rawls in a separate post.

Hart’s comments on Nozick are a bit less knockabout than the comments I mentioned in the previous post, but no more favourable. Hart presents ASU as one long series of exercises of the definitional fiat: if you define the right to own property as fundamental (and not, say, the right to life), and if you define taxation as logically equivalent to forced labour – one of several hyperbolical flourishes which Nozick seems to use both for effect and in earnest, in a “ha ha only serious” sort of way – then it follows that only the most minimal of minimal states can be legitimate, and so on. (Hence Nozick’s iconic status with right-Libertarians and other anti-state economic liberals. To be fair, Nozick’s model also has some far from conservative implications when it comes to present-day property ownership, given that only freely-undertaken transfers of title are treated as legitimate – and this with a fairly demanding definition of ‘free’.) If you define your terms thus and so, in other words, the model you build will give the conclusions you’re looking for. I don’t know if Hart ever read Schutz, but reading this paper I was strongly reminded of this passage, which forms the conclusion to Schutz’s essay “Common sense and scientific interpretation of human action”:

The relationship between the social scientist and the puppet he has created reflects to a certain extent an age-old problem of theology and metaphysics, that of the relationship between God and his creatures. The puppet exists and acts merely by the grace of the scientist; it cannot act otherwise than according to the purpose which the scientist’s wisdom has determined it to carry out. Nevertheless, it is supposed to act as if it were not determined but could determine itself. A total harmony has been pre-established between the determined consciousness bestowed upon the puppet and the pre-constituted environment within which it is supposed to act freely, to make rational choices and decisions. This harmony is possible only because both, the puppet and its reduced environment, are the creation of the scientist. And by keeping to the principles which guided him, the scientist succeeds, indeed, in discovering within the universe, thus created, the perfect harmony established by himself.

Defining people as independent property-owners – rather than, say, as interdependent community-builders – Nozick succeeds (indeed) in discovering within the universe, thus created, the perfect harmony established by himself.

But perhaps this isn’t the worst thing a political philosopher can do. To be more precise, for me this sort of frankly other-worldly (u-topian) system-building isn’t the most difficult or annoying thing a political philosopher can do. If Nozick stacked the deck – or rather, substituted a pack of cards of his own design – it’s no more than Marx did. What I find far harder to deal with is an approach taken by both Rawls and Dworkin (what little I’ve read of them), which I’d characterise as a kind of mundane idealism. It’s not that they don’t have ideas for a better world, or that they don’t build systems – Rawls in particular could never be accused of either of those failings. It’s that the ideas they have, and the systems they build, are tethered to (their) contemporary social conditions in ways I find unpredictable, arbitrary and unjustified. Marx had his blind spots – Kate Soper said once that when Marx dreamed of being able to “hunt in the morning, fish in the afternoon, rear cattle in the evening, criticise after dinner“, she wanted to know who had made the dinner – but the human fundamentals he starts from are pretty fundamental (they don’t include money, for a start). Both Rawls and Dworkin seem to bob back and forth between blank-slate system-building and the most cautious, considered, Overton window realism, in a way which (for me) makes them very hard to get to grips with. The effect is to build an ideal world on some curiously unexamined foundations – as if to say that, come the revolution, we could spend the morning hunting and the afternoon lobbying our MP, then rear cattle in the evening and write a letter to the Guardian after dinner.

Hart wasn’t a Marxist – and he certainly wasn’t a utopian – so these aren’t exactly his criticisms of Rawls or Dworkin. But they’re not a million miles off. In Taking Rights Seriously, Dworkin presents individual rights in terms of the need to guarantee equal respect for all. Rights are thus a brake or side-constraint on the utilitarian pursuit of the common good; Dworkin refers specifically to ‘anti-utilitarian rights’. The idea is not simply that utilitarianism may sacrifice any individual’s freedom and well-being for the greater good of society, and that inviolable individual rights will prevent this happening; the problems with this superficially attractive idea were pointed out long ago (see previous post). Dworkin’s argument starts further down the line, conceding that some freedoms should in fact be sacrificed for the good of society, but maintaining that others should not – as we do when we argue that teachers should be free to punish children in their care but not to use physical force; or, that employers should be free to terminate employment after a disciplinary offence, but not to do so on the grounds of religion or ethnicity. In making statements like these, Dworkin argues, we are effectively mapping out a set of (anti-utilitarian) rights. But what are the boundaries of this set of rights and how can they be identified?

At this point I would be inclined to shrug and misquote Harold Macmillan – “Politics, dear boy, politics”. (Or – stretching the Macmillan image a bit – “Struggle, dear boy, struggle”.) Dworkin, who was made of sterner stuff, argued that the rights which should be protected are those which would qualify on utilitarian grounds – or (what amounts to the same thing) those which would gain majority support in a free vote – under certain conditions. The key condition is that the preferences to be considered in the utilitarian argument – or (less straightforwardly) the preferences on the basis of which votes would have to be cast in order to be valid – are self-directed; other-directed preferences would count for nothing. So, for example, “All in favour of making Wesleyan Methodism the state religion” is (arguably) self-directed but wouldn’t pass. “All in favour of freedom of worship for you and your family” is self-directed and would pass. “All in favour of denying freedom of worship to Wesleyan Methodists” might pass, but it’s other-directed and so shouldn’t be allowed to. Hence, freedom of worship is an anti-utilitarian right. If other-directed preferences are allowed to count, Dworkin argued, the effect is tantamount to double-counting: I’m not only getting what I want (freedom for me) but negating someone else’s vote for what they want (no freedom for Wesleyan Methodists). On the other hand, if other-directed preferences are not expressed (or even felt) – if nobody, or hardly anybody, wants to deny anyone freedom of worship in the first place – the right ceases to be anti-utilitarian, fades into the background and ultimately ceases to exist. If you can get the same result by referring to “rights”, “common sense” and “the way things are done”, few people will choose the first option – or have any need to.

Hart finds all of this puzzling. (As an aside, the more I read Hart the more I envy anyone who knew him – let alone anyone who had him as a supervisor. I imagine that his expressions of puzzlement were a warning sign that you would come to fear, or relish.) The idea that rights – not the expression or effective assertion of rights, but the rights themselves – are time- and place-dependent is a stumbling-block; as Hart points out, this would mean that citizens of the most liberal and empowering society would have the fewest rights, which seems counter-intuitive to say the least. Hart’s argument focuses mainly on the (metaphorical?) image of double-counting and the idea of other-directed preferences, both of which he finds to be much more slippery, and harder to generalise, than Dworkin acknowledged. The idea of double-counting, in fact, he simply finds incoherent, once it’s generalised beyond simple examples of policies which explicitly disadvantage a targeted group – do we add one for every individual (other than the voter him or herself) who is either benefited or disadvantaged by a vote, since our vote counts for one extra vote for or against their interests? (And if so, how many valid – single-counted – votes would be left?) Hart finds the broader idea of other-directed preferences more substantial but just as problematic. He notes (using slightly different terms) that Dworkin would count a heterosexual voter’s opposition to gay rights as an other-directed preference; he then asks why, if the same voter came round to supporting gay rights, this preference would not also be considered ‘other-directed’ and hence inadmissible.

Two answers seem to be available, both difficult to argue. Hart’s own conclusion is that discounting positive other-directed preferences in this way would be absurd. We could theorise this position by argue that other-directed preferences should be seen as admissible – and, perhaps, that they should not be seen as other-directed – when their tendency is to promote overall equality of respect. The problem with this argument is that it relies on smuggling substantive ideas of the good back into an argument which purports to float free of them. Which is to say, the concept of equality of respect does not, in itself, give us the means to differentiate between ‘good’ and ‘bad’ examples of the ‘other-directed preference’. Shaw’s inversion of the Golden Rule – “Do not do unto others as you would have them do unto you. They may have different tastes.” – is glib and shallow, but it remains (annoyingly) pertinent. If I believed that human flourishing was best secured through the institution of heterosexual monogamy, I could argue that those social arrangements which promote it pay the most respect to all individuals, however uninterested in that institution they might be at the moment. Encouraging the expression of homosexual feelings would then be a disrespectful other-directed preference, despite its superficial liberalism: it would express the contemptuous view that some people were unable to overcome their base and self-destructive urges – as if to say that the liberal response to alcoholism was to set alcoholics free to drink themselves to death. Equally, it could be argued that laws mandating maximum working hours or a minimum wage are not founded on respect for the worker (or self-respect for oneself as worker) but on other-directed disrespect for the employers who would be inconvenienced by them – a prejudice against business which should not be given consideration. And so on.

Alternatively – and more consistently with the letter of Dworkin’s argument – we could argue that even altruistic other-directed preferences should not be counted: that only the preferences of those directly affected should be taken into consideration. The problem with this approach is that it would delegitimate social solidarity among anyone whose shoe didn’t pinch in exactly the same place, depoliticising rights discourse to a disabling extent. It would, for example, make it inadmissible for supporters to advance the rights of a group whose members were not themselves demanding them – a familiar scenario in the context of groups as disparate as children in care, migrant workers and abused women. Something like this does in fact appear to have been Dworkin’s position, although he avoided its more alarming implications by supplementing his modified version of preference utilitarianism with deontological arguments. In other words, he held that altruistic other-directed preferences should not in fact be counted as individual preferences, but that they should be attended to as the expression of views which might be independently (‘ideally’) correct, irrespective of how many or how few people held them. By this point, though, we are not so much smuggling an idea of the good into a utilitarian argument as moving out of the utilitarian argument altogether to shack up with an idea of the good.

Whichever way you take it, Dworkin’s argument against other-directed preferences seems to boil down to saying that majority votes – and utilitarian greater-good arguments – are problematic when they justify things that are wrong; the question of what actually is wrong remains open (and, I would add, political). It could be argued that these considerations of value pluralism have nothing to do with equality of respect – in other words, that these are arguments we would have been having anyway – but in fact that’s the point: Dworkin’s metric gives us no guidance precisely when we need it. Hart concludes by casting doubt on whether it is possible to derive anything of substance from the notion of equality of respect: after all, a law forbidding the practice of any religion is just as equal in its respect for belief as a law allowing complete religious freedom. (Both have an impact on the lives of all believers – and no non-believers.) In terms of equal application, Hart adds ghoulishly, “kill everyone” is just as good a command as “kill no one”.

Dworkin replied to Hart’s criticisms, in a paper with the unhelpful title of “Is there a right to pornography?” (try googling “Dworkin pornography” and see what you get). I have read it – the section on Hart at least – but I’ve got to admit defeat. I’m honestly not sure what Dworkin was saying, although there seemed to be a certain amount of question-dodging and subject-changing going on. I can recommend John Hart Ely’s 1983 paper on the Dworkin/Hart exchange, “Professor Dworkin’s External/Personal Preference Distinction”; Ely engages much more closely with Dworkin than I have the energy for, but he ends up seeming equally unimpressed (“Professor Dworkin has led us a merry chase, but each of the alleys has proven blind”).

Hart seems to have found Rawls considerably more substantial than Dworkin; he praises A Theory of Justice highly. But issues remain.

No top and no bottom

1. I agree with Vladimir Putin, up to a point

From the outset, Russia has advocated peaceful dialogue enabling Syrians to develop a compromise plan for their own future. We are not protecting the Syrian government, but international law.

It’s the way he tells ’em.

To be fair, Putin’s address to the American people did make some good points, in particular this one:

The United Nations’ founders understood that decisions affecting war and peace should happen only by consensus, and with America’s consent the veto by Security Council permanent members was enshrined in the United Nations Charter. The profound wisdom of this has underpinned the stability of international relations for decades.

No one wants the United Nations to suffer the fate of the League of Nations, which collapsed because it lacked real leverage. This is possible if influential countries bypass the United Nations and take military action without Security Council authorization.

I liked his conclusion, too:

I would rather disagree with a case [Obama] made on American exceptionalism, stating that the United States’ policy is “what makes America different. It’s what makes us exceptional.” It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation. There are big countries and small countries, rich and poor, those with long democratic traditions and those still finding their way to democracy.

In passing, I was amused to see that this last glimpse of the blindingly obvious had annoyed Thomas Friedman. Who does this so-called President Putin think he is, making out that America isn’t the greatest goddamn country on earth?

2. Inter arma enim silent leges, only not just yet

But is the man from the KGB really standing up for international law – and what does it actually say about Syria? This is a bit less of a live issue, thankfully, than it was before the rush to war was stopped in its tracks (well done that weakling!). The UK government’s case for intervention, set out by Attorney General Dominic Grieve, rested on the doctrine of “humanitarian intervention”. The argument was that it would be permissible under international law for the UK (or, presumably, any other state) “to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime”. Such an intervention would be legal under three conditions:

That there is “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief”; it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved”; and the proposed use of force is “proportionate to the aim of relief of humanitarian need”.

In response, Dapo Akande of the Oxford Institute for Ethics, Law and Armed Conflict pointed out that neither the second nor the third condition had been met. The third was particularly hard to get past:

“Even if there is a rule allowing intervention to avert a humanitarian catastrophe that rule would not simply permit action to deter and disrupt use of chemical weapons,” Akande said. “This standard is too lax. It would be a rule about preventing and about stopping. The UK is not proposing to take action which will actually prevent or stop further uses of chemical weapons.”

Unless, of course, what the UK government was planning was to carry on bombing until every last chemical weapon in Syria had been put beyond use; we’ll never know. It’s probably just as well.

Akande also made a broader point, which is that the idea of legality invoked by Grieve is rather a provisional thing. To the extent that it’s codified in any way, international law provides for military action in self-defence, in accordance with a UN Security Council resolution and, er, that’s it. What Grieve is referring to is the informal or ‘customary’ international law which is constituted from year to year by what states actually do.

when the attorney general’s advice says international law allows Britain to take measures to alleviate a humanitarian catastrophe without security council approval, this can only be in reference to customary international law which is based on the “views and practices of states”. [Akande] said there is “very little evidence of state support for this view. Indeed most states have explicitly rejected this view.”

3. Better not ask them to split the bill

The BBC canvassed opinions from Akande and four other lawyers (Geoffrey Robertson QC, Professor Sigrun Skogly, Professor Robert McCorquodale and Professor Dr Wolff Heintschel von Heinegg) as well as the political analysts Dmitry Babich and Sinan Ulgen. Their views stacked up as follows. There were five key issues: the role of the UN, including but not limited to the UN Security Council; the legality of “humanitarian” interventions; the legality of past interventions in Iraq and Kosovo; the “responsibility to protect” doctrine in the case of crimes against humanity; and the appropriate response to breaches of the ban on chemical weapons.

ROBERTSON: Intervention to prevent crimes against humanity – such as the use of banned chemical weapons – does not require UN Security Council approval; the legality of humanitarian intervention was established even before the UN was founded, in the context of actions against piracy and slavery. The intervention in Kosovo was not condemned by the UN Security Council, making it legitimate.

SKOGLY: Normally, any intervention needs to be approved by the UN Security Council. However, the legality of humanitarian intervention is a separate question. UN member states have a duty to promote human rights; consequently, if the regime has used chemical weapons, they have committed crimes against humanity. This means that UN member states are obliged to act on the basis of the responsibility to protect.

McCORQUODALE: Military action must be approved by the UN Security Council; failure to gain this approval means that the Iraq intervention is considered illegal. Intervention for humanitarian reasons, or on the basis of the responsibility to protect, is not lawful in terms of international law, although it may be in future.

AKANDE: The principle of responsibility to protect “does not create a legal right for intervention without Security Council approval”. The doctrine of humanitarian intervention rest on “a view of international law that has been rejected by most states”. (The humanitarian intervention in Kosovo, while not approved by the UN Security Council, was in pursuit of demands made by the UNSC.) A General Assembly resolution might be a possibility, but permanent members of the UNSC are unlikely to offer the GA that kind of authority.

HEINTSCHEL VON HEINEGG: In the absence of a UN Security Council resolution, intervention could only be justified on the basis of “customary international law”. The US and allies acted on this basis in their humanitarian intervention in Kosovo, although many states still regard this intervention as illegal. International treaties outlaw chemical weapons but do not provide for military intervention in response to their use. Some states currently turn a blind eye to limited action against chemical weapons, but this may change.

BABICH: Although the US might cite chemical weapons as a justification, UN Security Council approval is essential to make any intervention legal. Iraq and Kosovo didn’t have UN approval and were therefore illegal. And let’s not forget that they never found any chemical weapons in Iraq.

ULGEN: Only action approved by the UN Security Council would have “full legitimacy”. An alternative would be to try to get a resolution passed by the General Assembly. Other possibilities, outside the UN framework, include the responsibility to protect principle (invoked successfully in Kosovo) and international law banning chemical weapons, going back to the 1925 Geneva Convention.

4. At the shatterproof heart of the matter

So what does that lot add up to? For McCorquodale, Akande and Heintschel von Heinegg (three of the five lawyers), as well as Babich, the lack of UN approval makes intervention illegal. At the same time, all three lawyers acknowledge that international law changes over time and that customary international law may, arguably, give support to actions which are formally illegal. In this respect they contrast the Syrian situation unfavourably with Kosovo, although it’s a question of degree: none of them goes so far as to assert that the Kosovo intervention was legal. They also note, as does Babich, that customary international law is contested: one state’s customary international law may be another state’s illegal aggression.

Robertson dismisses the idea that UN approval is needed before military action can be taken. He argues that humanitarian intervention is legitimate, and that it’s legal under international law unless and until it’s ruled to have been illegal. Robertson’s invocation of piracy in this context is odd; action against piracy was justified historically on the basis that pirates were hostes humani generis, enemies of mankind and outside the protection of any nation. Robertson also refers to slavery, which seems more relevant: British actions in suppressing the slave trade – such as detaining slave ships and offering the slaves their freedom – could certainly be seen as outside the law, and did cause international incidents. However, these were at worst acts of unlawful expropriation, for which the slaveowners and their governments could (and did) ask for redress. Any parallel with the proposal to ‘free’ the people of Syria from the use of chemical weapons through outright acts of war is stretched in the extreme. Skogly and Ulgen both argue that the responsibility to protect could justify intervention, although Ulgen does acknowledge that this would be outside the UN framework. Skogly goes so far as to argue that “responsibility to protect” makes intervention obligatory, although she avoids stating outright that it would be legal.

Four of the experts refer to the “responsibility to protect” principle; only Akande notes, correctly, that it supplies a reason for intervention rather than a separate justification, and does not justify action by individual states outside the UN Security Council framework. (McCorquodale says that a state-level “responsibility to protect” would not make intervention lawful; Skogly and Ulgen both suggest that it would.) Another word worth watching is “legitimate”, a particularly slippery concept in this context (and only used by Robertson and Ulgen out of our experts). “Legitimate” doesn’t have a precise definition, but I’m taking it to mean “of uncertain legality, but unlikely to be challenged”. Of course, this is a fundamentally political judgment, as it depends on what you regard as a challenge: a nasty comment on Voice of Russia? a formal diplomatic rebuke? a referral to the International Court of Justice? (Or, if you’re a Republican President, none of the above?)

Having picked my way through all these different opinions, I think things ultimately are as simple as Babich makes them seem. The putative legal justification for an intervention has been variously rested on the 1925 Geneva Protocal banning chemical weapons (which doesn’t justify intervention), on the doctrine of preventing crimes against humanity (which is purely customary) or on the ‘responsibility to protect’ (which is codified, but doesn’t justify intervention outside the UN Security Council framework). In short, there’s nothing there, unless you define ‘international law’ as ‘what states do and then claim to be legal’ – and that’s not really satisfactory if the reason you’re invoking international law is to justify your state doing something and then claiming it to be legal. In this ‘customary’ perspective, international law (like reality) really is “what you can get away with“. This approach may work for a while if, like the USA, you’re one of those states that tends to get away with things (Britain historically isn’t, to its credit). But it’s not a principle that could ever coherently be generalised – which may be why, as Akande says, most states don’t want it to be. Remove this impossible option – of a kind of informal international legal order built on generalised lawlessness – and we’re left, as Putin effectively said, with a choice between international law and exceptionalism: either the law applies to everyone, or we maintain that it doesn’t apply to us because we say so.

This isn’t to say that there will never be an international mechanism for intervention in cases of humanitarian crisis, or that the ‘responsibility to protect’ will always be subject to agreement at the level of the UN Security Council. International law can and does change. But it hasn’t changed yet – not in the way that the interventionists would have liked.

5. Hark, now the drums they beat again

I think the failure (legal as well as political) of the arguments for intervention is significant – and very welcome, if that doesn’t go without saying. It should, hopefully, set an enduring precedent.

I have some sympathy for the people who say

it cannot be the case that [Security Council authorisation] is the only way to have a legal basis for action … We could have a situation where a country’s Government were literally annihilating half the people in that country, but because of one veto on the Security Council we would be hampered from taking any action. …That is why it is important that we have the doctrine of humanitarian intervention

or

a system of law that would countenance mass atrocity without any remedy simply because the interests of a veto-wielding power at the UN blocks remedial action is morally unacceptable, indeed intolerable; and so where the UN itself becomes delinquent by not upholding some of its own most fundamental principles, the UN not only may, it should, be defied by member states willing to give those principles more respect.

or, more succinctly,

Viewed from the angle of UN legality, military action against Assad cannot possibly be legal … If military action against Assad is morally justified then that must be the case regardless of whether or not it is ‘legal’.

(James Bloodworth, David Cameron, Norman Geras. Not necessarily in that order.)

I don’t agree with them, because I believe they’re missing two very important points. One is that legality – even the cobbled-together legality represented by international law – is a virtue in itself, and an extraordinarily important virtue. If the legal system of England and Wales governs 56 million individual actors, the international legal order governs 200 (give or take a few). If a handful out of 56 million actors defect from an agreement, they’re in trouble; if a handful out of 200 defect, the agreement is in trouble. An action in breach of international law isn’t simply an action with the quality of not being internationally legal  – it’s an action which breaches international law, leaves a (customary) breach in it. In other words, it’s an action which makes international law harder to invoke from then on, and harder to develop further. (Let’s say we hope to gain Russian and/or Chinese agreement to the principle of “responsibility to protect”. Would acting unilaterally now make gaining this agreement in future (a) easier or (b) harder?)

Pace James B, if military action against Assad (or anyone else) is illegal, that must be the case regardless of whether or not it’s morally justified – or, to put it another way, regardless of how much we may want it to be legal. And if you’re going to use your moral justification to knock a hole in the – already horribly imperfect – edifice of actually existing international law, it’s going to need to be a very good moral justification. Which brings me to the second point, touched on by Akande. Politically, the great merit of a rush to war is that it gets you into the war nice and quickly, without too much time to sit around debating the whys and wherefores. Conversely, one of the great merits of insisting on legality – at least, insisting on stopping for long enough to have the argument about legality – is that it creates a pause in the rush to war, in which there’s time to ask the awkward questions: in particular, what is the government trying to achieve, and has it chosen the best means to do it? Fortunately – and thanks to some excellent political footwork from Ed Miliband – there’s been a long enough pause for those questions to be asked; I think it’s fairly widely acknowledged now that the UK (and US) government’s goal was all too unclear, and the means chosen seemed likely to be horribly counter-productive. But it was a close thing.

Too often, when the drums start beating, the appropriateness of military force goes unquestioned, even by people who position themselves on the Left. But if all your solutions look like craters, I think you need to ask yourself why you believe that all your tools are missiles.

The most cruel

Growing up in the 1970s, it’s hard to overstate how important the cause of Chile was. 11th September 1973 was, I suppose, a “naked lunch” moment – a frozen moment when everyone sees what is on the end of every fork; we knew who was on whose side, and what they were willing to do.

Joan Jara:

on the 18th of September … a young man came to my house, said, “Please, I need to talk to you. I’m a friend. I’ve been working in the city morgue. I’m afraid to tell you that Victor’s body has been recognized,” because it was a well-known — his was a well-known face. And he said, “You must come with me and claim his body; otherwise, they will put him in a common grave, and he will disappear.”

So then I accompanied this young man to the city morgue. We entered by a side entrance. I saw the hundreds of bodies, literally hundreds of bodies, that were high piled up in what was actually the parking place, I think, of the morgue. And I had to look for Victor’s body among a long line in the offices of the city morgue, recognized him. I saw what had happened to him. I saw the bullet wounds. I saw the state of his body.

And I consider myself one of the lucky ones, in the sense that I had to face at that moment what had happened to Victor, and I could give my testimony with all the force of what I felt in that moment, and not that horror, which is much worse, of never knowing what happened to your loved one, as what happened to so many families, so many women, who have spent these 40 years looking for their loved ones who were made to disappear.

But the real significance of 11th September wasn’t the treachery or the horrors of the coup itself, or the years of brutal misery that followed. The coup mattered because of what it destroyed: the beginnings of a radical social experiment, bringing millions of people a chance of a decent life, some power over their own lives, a bit of confidence in the future. The sheer joy of that period has never been captured better than in this song (which I’ve cited before but not linked). Listen to the middle eight – it’s as if Victor Jara’s saying, you get it now? being alive is good, being in love is great, but this – this is happiness! this is how we were meant to live!

Forty years after that hope was destroyed, let’s celebrate it. (Translation in comments.)

Maria,
abre la ventana
y deja que el sol alumbre
por todos los rincones
de tu casa.

Maria,
mira hacia fuera
nuestra vida no ha sido hecha
para rodearla de sombras
y tristezas.

Maria, ya ves
no basta nacer, crecer, amar,
para encontrar la felicidad.

Pasó lo mas cruel,
ahora tus ojos se llenan de luz
y tus manos de miel

Maria…

Tu risa brota como la mañana,
brota en el jardín
Maria…

Too pale a hue

June? June?

Oh well – I’m back, probably.

What’s been happening? Looking back at the last two posts, both those papers got rejected; in one case it was more of a “revise and resubmit”, so I’m not particularly distressed. The other was more of a “hit the back wall without bouncing” rejection, which did stop me in my tracks for a bit – but I’ll get a resubmission out of it. And my book is almost out, and almost has its own Web page (a holding page as I write this, but I’m going to fix that RSN).

I was going to kick this blog back into life with a few thoughts on blogging, or a political meme that drifted past in the summer, or some thoughts on the mainstreaming of Fascism, or possibly even my long-planned post on the ethics of armed struggle. (Armed struggle: I’m agin it.) Instead of which, I’m going down that time-honoured route to a blog post, the comment that got too long for the comment box. Sparked off by something on Daniel’s site, which has an odd sort of big-fleas-little-fleas appropriateness about it.

First off, how about a bit of Tronti? (Borrowed from my book, which is out soon.)

Capitalist society has its laws of development: they have been formulated by economists, applied by governments and endured by the workers. But who will discover the laws of development of the working class? … We ourselves have put capitalist development first, workers’ struggles second. This is wrong. We need to reverse the problem, change its sign, begin from first principles: and the first principle is the struggle of the working class. Where capital is developed on the social scale, capitalist development is subordinate to workers’ struggles: it follows on from them and has to shape the political mechanisms of its own production accordingly.
Mario Tronti (1964), “Lenin in England”

More generally – Tronti and the workerists argued – capitalist development is parasitic on workers’ intelligence and creativity, which they use in the refusal of work. You get the job done with half an hour to spare and sneak off for a fag; your employer cuts your working day by half an hour and cuts your pay accordingly. Result: profit. You do eight hours’ work in six hours; your employer increases your workload by 33%. Result: profit.

And so to Thomas Friedman.

we need to understand that it is not only our financial system that needs a reboot and an upgrade, but also our public [i.e. state] school system. Otherwise, the jobless recovery won’t be just a passing phase, but our future.

[the] problem will be reversed only when the decline in worker competitiveness reverses — when we create enough new jobs and educated workers that are worth, say, $40-an-hour compared with the global alternatives. If we don’t, there’s no telling how “jobless” this recovery will be.

Those who are waiting for this recession to end so someone can again hand them work could have a long wait. Those with the imagination to make themselves untouchables — to invent smarter ways to do old jobs, energy-saving ways to provide new services, new ways to attract old customers or new ways to combine existing technologies — will thrive. Therefore, we not only need a higher percentage of our kids graduating from high school and college — more education — but we need more of them with the right education.

For a start, the “untouchable” theme is a striking example of Friedman’s legendary tin ear. To use “untouchable”, as a noun, to refer to people at the top of the heap – people who will thrive while the rest of us struggle – is bizarrely insensitive. To do so when what we’re struggling against is competition from low-wage countries, like, say, India – ugh. Brane hertz.

The “work-smarter-not-harder” stuff in the last paragraph quoted above is pretty insulting, too – at least, it is for those of us who have been hearing it from management gurus, year in and year out, ever since the last recession. The sermon changes from year to year – sometimes there’s just no money around; sometimes there’s lots of money but lots of people competing for it; sometimes it’s neither of the above but the world is changing! – but the message is always the same. There’s always some compelling reason why we’ve got to invent smarter ways to do old jobs, energy-saving ways to provide new services, new ways to achieve this and save money on that. We can’t just get on with our jobs – that would be wrong. (More to the point, it would mean we didn’t generate more profit than we did last year. See Tronti.)

But Friedman has something more specific to say here. Something that goes roughly like this:

“Only a minority of American workers are doing well out of globalisation – everyone else is getting shafted! As nobody could possibly have predicted (except for everybody but me)! So we need to move all American workers into that minority! And the key to that is education, government-provided education in particular! And what we need to do to government-provided education is, oh, damn, time’s up.”

I was particularly struck by the line about the $40-an-hour jobs. He’s literally proposing to fix the problem at the margin – by moving everyone who’s being affected by global competition into the margin of jobs so skill-intensive, and skills so specialised, that they can’t be done for less than $40/hour. Because if they could be done cheaper they would be, and if they’re done cheaper on the other side of the world, hey, them’s the breaks.

In The age of insecurity, Larry Elliott and Dan Atkinson liken globalisation to a strong wind – a conventional enough image these days. They then say that the anti-protectionist orthodoxy is a bit like saying we should deal with this strong wind by opening all our doors and knocking down walls where possible. (That wind is out there whether we like it or not! It’s a fact of life! It’s the way the world is!) Friedman has been urging on a process which other people said should be resisted or slowed down, because it would lead to disruption and immiseration on a large scale. He’s now claiming that it has led to large-scale disruption and immiseration – and his only solution is for the 80% to clamber on board the 20%’s lifeboat. And if that doesn’t work, well, it’s probably the fault of the government.

It’s over there

A quick post to register a rather striking piece of news (via), which didn’t seem to get much notice in the British media. First, here’s the complete text of a piece on torture from the January 2008 Washington Monthly:

According to the latest polls, two-thirds of the American public believes that torturing suspected terrorists to gain important information is justified in some circumstances. How did we transform from champions of human dignity and individual rights into a nation of armchair torturers? One word: fear.

Fear is blinding, hateful, and vengeful. It makes the end justify the means. And why not? If torture can stop the next terrorist attack, the next suicide bomber, then what’s wrong with a little waterboarding or electric shock?

The simple answer is the rule of law. Our Constitution defines the rules that guide our nation. It was drafted by those who looked around the world of the eighteenth century and saw persecution, torture, and other crimes against humanity and believed that America could be better than that. This new nation would recognize that every individual has an inherent right to personal dignity, to justice, to freedom from cruel and unusual punishment.

We have preached these values to the world. We have made clear that there are certain lines Americans will not cross because we respect the dignity of every human being. That pledge was written into the oath of office given to every president, “to preserve, protect, and defend the Constitution.” It’s what is supposed to make our leaders different from every tyrant, dictator, or despot. We are sworn to govern by the rule of law, not by brute force.

We cannot simply suspend these beliefs in the name of national security. Those who support torture may believe that we can abuse captives in certain select circumstances and still be true to our values. But that is a false compromise. We either believe in the dignity of the individual, the rule of law, and the prohibition of cruel and unusual punishment, or we don’t. There is no middle ground.

We cannot and we must not use torture under any circumstances. We are better than that.
– Leon E. Panetta

This kind of self-congratulatory American visionary liberalism sets my teeth on edge, I have to admit – “We are better than that”? Really? – but at least here it’s being invoked against the barbarities of power, not as a cover for them. And these particular barbarities have flourished exuberantly over the last seven years, so it’s refreshing to hear any sign of unyielding opposition to them from within the US establishment, however syrupy the rhetoric.

Anyway, about that news story. From the 5th January New York Times:

President-elect Barack Obama has selected Leon E. Panetta, the former congressman and White House chief of staff, to take over the Central Intelligence Agency

Obama’s going to let us down – oh, how he’s going to let us down. (I’m particularly not looking forward to his first statement on Gaza.) But this is seriously good news – better than I’d ever have expected.

“We cannot and we must not use torture under any circumstances. We are better than that.”

Leon Panetta, the next head of the CIA.

Update 17/1

Obama, 11/1:

Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures when it comes to interrogations and from my view waterboarding is torture. I have said that under my administration we will not torture

our United States military is under fire and has huge stakes in getting good intelligence. And if our top army commanders feel comfortable with interrogation techniques that are squarely within the boundaries of rule of law, our constitution and international standards, then those are things that we should be able to (INAUDIBLE)

Perhaps more significantly, Bush administration appointee Susan Crawford, 14/1:

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case [for prosecution]”.

Something’s changing out there. The fundamental point is that there is a difference between interrogation and torture: interrogation is about extracting information, but torture is about breaking people. And when a person’s broken they can’t give reliable testimony. This, I think, made Guantánamo Bay too much of an anomaly for even Bush’s attack lawyers to assimilate into legal normality. Give waterboarding – or stress positions, or hooding and white noise in a white room – what names you like, there is still such a thing as torture; it’s defined by its effects, and its key effect is to nullify a suspect’s legal personhood. Under Bush and Cheney that was a small price to pay: it also made terrorist suspects safe, after all, and it might produce some usable intelligence along the way; the rest was just a question of human warehousing. For Obama – as for ‘lifelong Republican’ Crawford, and doubtless many more like her – it’s just not how it’s done.

I like that ‘(INAUDIBLE)’, though.

No fear, cavalier

Airmiles was quoted in the LRB the other week:

it was clear soon after 9/11 that the Bush administration … believed that the awesome demonstration of American military muscle would intimidate present and potential enemies everywhere. The administration had its own intellectual cheerleaders and experts on the Middle East: Bernard Lewis, for instance, whose pet conviction that ‘in that part of the world, nothing matters more than resolute will and force’ was validated by the swift capitulation of the Taliban. Iraq was logically the next target. As the columnist Thomas Friedman told Charlie Rose, what the Iraqis ‘needed to see was American boys and girls going house to house, from Basra to Baghdad, and basically saying: “Which part of this sentence don’t you understand? You don’t think, you know, we care about our open society, you think this bubble fantasy, we’re just gonna let it grow? Well, Suck. On. This.”’

Which part of this sentence? Well, the grammar, for a start – it seems to make the most sense if you take out that first ‘you know’ and substitute a question mark for the comma after ‘society’, but there are a few possible readings.

If the word order is mangled, the sense is pretty clear: what Iraq needed wasn’t liberation so much as harrowing, to be carried out by a kind of frat-boy Khmer Rouge. (“Suck on this”, by crikey. What is it with fellatio and humiliation in American rhetoric?) It’s just a dream – the US Army doesn’t have the manpower to go house to house, from Basra to Baghdad; it’s hard to imagine an army that would. But that basic unreality lends it power – once you start thinking if only we had ten times as many men on the ground, then our boys could sort it out! you’re not going to look kindly on any attempt to set limits to what the troop numbers actually are, or to what the troops can actually do. Fantasy lawlessness has a way of eroding real-world law.

Coincidentally, the same day I read that, I saw Lord Bingham’s response to Lord Goldsmith in the Telegraph:

In his full written advice to the Prime Minister of March 7, 2003 — not made public at the time — Lord Goldsmith QC considered that resolution 1441 could, in principle, revive the authority to use force contained in resolution 678 and suspended, but not revoked, by resolution 687. At that time, though, it was not clear to him whether the use of force required merely a discussion by the Security Council or a further resolution.

Summarising Lord Goldsmith’s reasoning, Lord Bingham said: “A reasonable case could be made that resolution 1441 was capable in principle of reviving the authorisation in resolution 678, but the argument could only be sustainable if there were ‘strong factual grounds’ for concluding that Iraq had failed to take the final opportunity. There would need to be ‘hard evidence’.”

Ten days later, in a Parliamentary written answer issued on March 17, 2003, Lord Goldsmith said it was “plain” that Iraq had failed to comply with its disarmament obligations and was therefore in material breach of resolution 687. Accordingly, the authority to use force under resolution 678 had revived. The former judge then quoted the conclusion to Lord Goldsmith’s Parliamentary statement: “Resolution 1441 would, in terms, have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.”

Lord Bingham was not impressed. “This statement was, I think flawed in two fundamental respects,” he said. “First, it was not plain that Iraq had failed to comply in a manner justifying resort to force and there were no strong factual grounds or hard evidence to show that it had: Hans Blix and his team of weapons inspectors had found no weapons of mass destruction, were making progress and expected to complete their task in a matter of months. Secondly, it passes belief that a determination whether Iraq had failed to avail itself of its final opportunity was intended to be taken otherwise than collectively by the Security Council.”

After reading a draft of Lord Bingham’s speech, Lord Goldsmith said he remained of the view that his conclusion was correct. “I would not have given that advice if it were not genuinely my view,” he told the telegraph.co.uk law page. Why, though, did his views appear to harden between March 7 and March 17? “Having rightly expressed caution in my earlier advice, I had formed the view during the week before the 17th that it was my job to express a clear judgment one way or the other.” Civil servants and military commanders had wanted a clear answer. “Either it was lawful or it was not,” Lord Goldsmith explained. “It could not be a little bit lawful.”

As an aside, Bingham seems unimpressed by the ‘I really believed it’ defence:

“Lord Goldsmith emphasises that he believed the advice which he gave at the time to be correct — which I have not challenged — and remains of that view.”

(Emphasis added.) I guess it’s a backhanded tribute to the anti-war movement – all those ‘Bliar’ posters must really have hit a nerve. But Bingham’s right to dismiss it as a side-issue. In law, “I didn’t mean to do it” is a defence of sorts, but an “I genuinely thought it was a good idea” defence would get you nowhere.

The big question here, and the one which really goes to Goldsmith’s competence as a legal advisor, is that last one: Why, though, did his views appear to harden between March 7 and March 17? Goldsmith’s explanation is superficially plausible but, on a closer reading, alarmingly unsatisfactory. Yes, it was his job to express a clear view about the proposed attack, and no, it couldn’t be a little bit lawful – but that’s not to say, as Goldsmith implies, that legality is an on/off property which is either present or not. A judgment on the action’s legality – not whether it would be lawful in some absolute sense, but whether it passed a threshold above which it would be lawful enough – was always going to be made. Between the 7th and 17th of March Goldsmith seems to have decided, firstly, that he was going to make that judgment himself rather than leaving it to the politicians; and secondly, that he would make it on the basis that the action would be legal unless it was clearly illegal: a little bit lawful was lawful enough. It’s debatable whether it’s appropriate for the government’s senior lawyer to spare the politicians the complexities of legal advice by offering them a simple yes/no recommendation, particularly on a decision of this importance. But it’s staggering, even now, to realise that in making this recommendation he didn’t err on the side of caution, treating the action as illegal unless it was clearly legal. Accepting for the sake of argument that removing grey areas was part of Goldsmith’s job, the question here was surely “is it more or less white?”, not “is it not entirely black?”

It gets worse. Why did Goldsmith adopt an aggression-friendly reading of resolution 1441?

Having spoken to those who negotiated the terms of the resolution, Lord Goldsmith was sure that the need for a further determination had been deliberately omitted. US diplomats would not have agreed to resolution 1441 if they thought it allowed other members of the Security Council to block military action by requiring a second resolution that might be vetoed.

Brian sums up what Goldsmith’s suggesting and is appropriately sceptical:

[The government] argues that during the secret negotiations of the text of resolution 1441, Russia and France and other Council members originally wanted the resolution to specify that the Council should take a further “decision” on what to do if Iraq continued to fail to comply with its obligations: and that by agreeing to abandon that language in favour of a requirement that the Council should merely “consider the situation” (as in the text eventually adopted), they accepted that force could be used by any state without the need for a further “decision” by the Council. There is no public record of the “negotiating history” of 1441: all we have is Lord Goldsmith’s account of it, based on his private discussions with the British and American participants. [A] public inquiry should seek to establish whether the Russian, French, German and other governments agree with this interpretation, which seems at first sight far-fetched: as Lord Bingham said, it “passes belief”.

But I think scepticism’s only half of the story. Let’s assume for the moment that Goldsmith’s account is true, or at least that he believes it to be true. (As I said earlier, I don’t think proclaiming yourself not to be a liar is a defence against anything very substantial, but it’s a defence that’s readily available to almost anyone; as a result, challenging someone’s sincerity is a good way to give them an easy win.) What does it tell us about how Goldsmith approached his job? Here’s a lawyer ruling on the legality of an action, basing his decision explicitly on three UN resolutions (678, 687 and 1441). Lawyers interpret legal decisions; it’s a large part of what they do. But Goldsmith’s interpretation of the crucial resolution 1441 isn’t based on a natural-language reading; it’s not based on precedent, either, or even on the lawyer’s standby, the appeal to the interpretation of a ‘reasonable person’. Goldsmith arrives at a borderline perverse reading of 1441 – one which the text of the resolution barely supports at all – on the basis that, if the Americans had subscribed to any other reading, they wouldn’t have let the resolution pass. In short, Goldsmith’s reading was driven by his knowledge of what the US government wanted. A drive to war in Iraq was well under way, fuelled and even to some extent steered by proto-fascist fantasies like Friedman’s. Goldsmith’s approach, on his own admission, was not to bring the law to bear on the drive to war, but to take the drive to war as read and interpret the law so as to fit it. This strikes me as a disgraceful abdication of duty (to the law, not to the government – he served them faithfully). It’s only surprising that he admits to it so readily.

Meanwhile in another part of the forest, a legal authority I’ve got rather more time for at the moment is Nigel Simmonds, whose Law as a Moral Idea is currently giving my brain some useful exercise. This rather lovely formulation is from the book’s Preface:

I am also indebted to [names omitted]. A more intelligent author could perhaps have accommodated their various criticisms and insights, to the considerable improvement of the book’s argument. This author, however, has had to rest content with the imperfect pages that now lie before the reader.

I must remember to borrow that.

A moment worth waiting for

Eliot Weinberger’s Obama v. Clinton: A Retrospective was clearly written in the heat of (interim) triumph:

Just when you thought [Clinton] had hit bottom, she went even lower. She tried to cast Obama as a scary black man who, as subliminally suggested in her infamous (and mercilessly parodied) ‘3 a.m.’ ad, would break into your house and murder your cute little sleeping blonde daughter. She cast doubt on whether Obama was really a Christian and not a scary Muslim. And when that didn’t work she reinvented herself as a Woman of the People, waxing eloquent on her hunting days with Grandpa and downing shots in working-class bars, as she derided Obama – the son of a single mother on welfare – as an elitist, out of touch with the regular people she’d presumably been hanging out with all these years at Yale Law School, the Arkansas governor’s mansion, the White House and the Senate. Those regular people, she explained in one of many embarrassing moments, were ‘hard-working Americans, white Americans’.

I like ‘one of many’ – shorthand for You think that’s bad? There’s more where that came from – plenty more… Weinberger states and restates his contempt for Clinton in open-handed, effusive prose; he’s generous with his derision. It’s all good fun, if you’re on the same side as Weinberger – at least, if you’re not on one of the sides he’s not on.

On the final night of the relentless presidential primary campaign, Jesse Jackson compared Barack Obama’s victory to the signing of the Declaration of Independence. Erica Jong compared Hillary Clinton’s defeat to watching Joan of Arc burning at the stake. Obama was in St Paul, Minnesota, pointedly in the very arena where the Republicans will hold their convention in September … Clinton was off on what has come to be known as the remote island of Hillaryland – in this case several storeys below ground at Baruch College in New York, inaccessible to cell phones or BlackBerries – still insisting that, according to Hillarymath, she had won the popular vote, still declaring that she was ready to be commander-in-chief on ‘Day One’ … And then there was John McCain, in what seemed to be a high school auditorium somewhere in Louisiana (even he wasn’t sure: he thought he was in New Orleans, but he wasn’t), addressing a few hundred sleepy geriatrics

You get the picture: Clinton arrogant and ridiculous, McCain ridiculous and old. And Obama? When it comes to Obama, there’s something rather more complicated going on.

Obama didn’t win because Clinton lost. He was, in American terms, the better candidate. I knew he’d win when I first watched him on television in Iowa, for he has the quality Americans most prize in their presidential candidates: sincerity.

Obama, by all accounts, has remained true to his vision of grassroots organisation and politics through reconciliation; he has yet to be caught holding any contradictory positions. In a country that believes, above all, and largely to its great detriment, in individual self-reliance, he is a self-made man whose message emphasises that progress must also begin at home.

What’s good about Obama wavers in and out of focus here. He’s got a vision of grassroots organisation and politics through reconciliation: a contradictory vision, by the sound of it, as well as one which doesn’t have much to do with the office of President. He’s a self-made man, and as such appeals to a country which believes – to its own great detriment, i.e. incorrectly – in self-reliance. He’s personally sincere, or at least manages to appear sincere, which makes him (in American terms) a good candidate for Head of State.

Perhaps the key to what Weinberger’s saying about Obama is that odd line “he has yet to be caught holding any contradictory positions” (emphasis added). Consistency as a virtue, with the implication that a candidate who doesn’t contradict him- or herself is, perhaps, a candidate with fixed principles: and that in itself is something to be prized, irrespective of what those principles are. This ties in to an oddly lenient passage in one of Weinberger’s many critiques of Clinton:

Believing that it was the only way a woman could be elected, she had built her image as a Thatcher-like Iron Lady, not only supporting the Iraq war, but also identifying with various military and defence issues. Assuming she would be running against the right, never imagining a challenge from the left, Clinton was not prominently identified with any progressive legislation in her six colourless years in the Senate, for fear that it would ultimately be used against her. On the contrary, she largely tried to burnish her credentials as a hardline patriot, even introducing a bill against flag-burning, though there had been only one known incident since the Vietnam War – some drunken frat boys at a party.

Clinton, here, is pure political tactician; if she used her influence as a Senator to the benefit of the militaristic Right, this was because she wanted to avoid anything that could be used against her and to burnish her credentials as a supporter of her enemies’ favourite causes. Weinberger presents all this as a series of self-seeking tactical manoeuvres; if we accept this, Clinton’s great error was not moving Right, but failing to anticipate that moving Right would become a liability.

Anyone who remembers my comments on Davis won’t be surprised to learn that I find this a deeply unsatisfactory way of thinking about politics. Actions have consequences, and in politics symbolic actions can have material consequences: the US political sphere and US society were affected, however infinitesimally, by every right-wing speech Clinton made as a senator and by her every refusal to support progressive legislation. I’m arguing, in a sense, for something like Benjamin’s messianic perspective on history: I’m suggesting that the music stops every so often, and that in those moments we can see who’s done what and judge them on that basis. Or rather, I’m suggesting that we should imagine that the music stops every so often, and that we can hold politicians to account in terms of what they’ve actually done.

Looking at Clinton’s Senate career, we need to think of its effects on the outside world as well as on Clinton’s subsequent electability. Conversely, we shouldn’t let Obama off the hook because he appears to have principles of some sort. Obama should be seen as a politician – someone with the power to make changes, benefiting one group rather than another – as well as a dreamer of dreams (that music eventually stops, too). And Clinton should be seen as someone who has made a difference – mostly for the worse – as well as a mere ladder-climbing politician.

The worst thing you can do with politicians is believe in them: the best of them is much more (and less) than a principled idealist. The second worst is to disbelieve, reducing politics to court intrigue (that’ll embarrass him… how’s she going to get out of this?…). It takes a sincere reactionary to start fires deliberately, but cynical hacks do a lot of playing with matches – and the fire’s just as real.

Under the mirror

Counting films on TV & video, the last five films I’ve seen (from most recent) are

The Spiderwick Chronicles
Pride and Prejudice
High School Musical 2
High School Musical
Vantage Point

You may sense a theme emerging. Spiderwick is certainly a film I wouldn’t have seen if I weren’t a parent, but as such it was much better than I’d expected (although by the end of it I had seen enough CGI goblins, trolls and boggarts to last me a good long time). The plotting was a bit odd and baggy in places, probably thanks to the film being based on five separate books, but the construction and pacing were terrific – it gripped and didn’t let go. It was also one of the scariest films I’ve seen in some time, with some well-executed horror-movie ‘house under attack’ sequences; what the eight-year-old of the family made of it I’m not sure. By comparison the High School Musicals are fluff, but they’re enjoyable fluff. HSM2 suffers from diminishing returns – and from the inexplicable decision to cut out the “Humuhumunukunukuapua’a” number, which leaves a big hole in the film – but they’re both worth a look if you like musicals. (I’m a sucker for a well-executed musical, and these are.) Nice liberal anti-conformity message, too. And Pride and Prejudice – the only proper grown-up film we’ve seen lately – is wonderful, but not in a costumey way. It’s true to the novel, which is very far from being a costume-drama novel; the performances have that quality David Lynch used to get on Twin Peaks, of actors going just far enough over the top. I never expect to see a better Darcy than Matthew McFadyean; he’s sulky, awkward, odd-looking and a howling snob, all of which makes him a great improvement on (say) the Colin Firth portrayal. Keira Knightley actually gives one of the poorer performances – she doesn’t quite get the length, and sometimes seems like she’s strolled in from another film – but she’s still very watchable, what with being Keira Knightley.

But this post is about Vantage Point, which was something of a personal milestone – the first film I’ve been to with my son that I wouldn’t have minded seeing on my own, or with another adult. (This post began as a comment on The Cedar Lounge Revolution, some time ago now – cheers, WbS.) It’s a high-concept film: there’s an assassination attempt on the President of the US (POTUS, as he’s called throughout the film); we see the 10-15 minutes either side of the shooting from the viewpoint of a TV news team, then see it again from the standpoint of an eye-witness, then another – and another – and another. As each sequence ends we’re shown a montage of the key events we’ve just seen, speeded up and in reverse: rewind the tape and let’s go again. After four of these sequences, each of which reveals a bit more about what’s happened, we rewind once more and then follow events from the standpoint of the terrorist group responsible for the shooting. Or that’s how it seems to begin with; after a while we realise the film’s reverted to standard omniscient-narrator mode, and the second half is shot very much like a conventional thriller. Very much in the style of the Bourne films, in particular, or at least in a style meant to evoke the Bourne films – the action isn’t nearly as brutal, or the hand-held camerawork as jerky. Where the style of the film does score, intermittently, is in evoking the experience of some fairly extreme events. Most of the gunplay is standard-issue bang-you’re-dead stuff, but there’s one catastrophic event that’s followed by some strikingly unhurried shots of the aftermath: you can see the different protagonists sitting up, looking round and obviously thinking What was that? And what the hell do I do now? If the Bourne films redefine heroism by making it look really difficult and really dangerous, this film was more about heroism and post-traumatic stress.

It’s pretty political, for a mainstream action film; to be more precise, it’s a “this is pretty political for a mainstream action film” film. Very self-conscious, very media-studies – and, ultimately, not very political (we learn next to nothing about the terrorist group at the heart of the action). If there’s an overriding mood to the film it’s less radical than paranoid. The way it puts on display anxieties about recorded images, surveillance and the mass media is typical. The first sequence is set in an outside broadcast newsroom, belonging to a US satellite channel modelled on CNN; at the end, the film returns to the satellite channel, closing with a grainy full-screen image of their newsreader. The first-person sequences that make up the first half of the film include some sequences from the character’s viewpoint, but mostly we’re either looking straight at the character or looking over his shoulder. It’s a curious effect: when the first-person character looks around to take in a whole scene, in particular, the giddy looping of a hand-held camera reproduces his head movements – even though the guy himself is in shot. The grammar of these shots effectively writes in the film-maker, saying we are showing you how it looked to him – a point that’s underlined thuddingly by those pause-and-rewind sequences. (He, he, him – all the four eye-witness characters are male.) There were lots of cameras within the film; at one point or another just about everyone was filming, being filmed or both, and much vital evidence was seen being caught on camera. On the other hand, it was clear that we were being shown the view from inside, and nothing was going to get out without heavy official filtering. Before the main action of the film, a reporter on the ground was seen pointing out that lots of people in Europe weren’t too keen on US foreign policy, and being roundly rebuked for going off the script about unity in the face of terror. The foiling of a real (and fiendishly complex) terrorist plot naturally didn’t change this policy; the last line of the film closed the official book on the story, suggesting that most people would never know what had happened.

The focus on camcorders and cameraphones links into a more general unease – or uneasy fascination – with technology. My son wondered if the film would damage the sales of iPhones, which (or something very like them) are used to great effect by the head bomber. At several points I was strongly reminded of the Italian Job, of all things: the terrorists pull off an impossibly complex plot, forestalling and circumventing anti-terrorist counter-measures through ingenuity, co-ordination and some very advanced technology. However, in this film we’re dealing with a terrorist coup carried out by ruthless fanatics rather than a payroll robbery pulled off by a gang of lovable South London incompetents, which makes for a very different mood: you don’t actually want the terrorists to succeed, to put it bluntly. The terrorists’ indomitable ability to stay one step ahead of the forces of law and order feeds right into the film’s pervasive sense of paranoia and helplessness. Whatever we (meaning, roughly, the US Secret Service) do or think of doing, they will know about it already; nothing we can do but keep on keeping on, shoot the bad guys when the opportunity presents itself, and trust to luck to get us out of this thing (it works in this film, anyway). A very American version of heroism, but with a beleaguered, disenchanted post-Cold War edge – as if to say, we don’t know what’s going on, we don’t really believe we’re fighting the good fight any more – but they’re still out to get us, so we’d better just keep fighting.

This links into the more explicit politics of the film: it is specifically the Americans (including, presumably, the main audience for this film) who don’t know what’s going on, and who are feeding the enemy without realising it. After technology, the terrorists’ main weapon is their ability to recruit: half the characters you see turn out either to be members of the terrorist group or to be temporarily complicit with them for various reasons. At the most basic level, the message is that Europe has a plentiful supply of recruits and sympathisers for an anti-American cause – a point most of the Americans were shown as completely failing to understand (that was the significance of the exchange with the more ‘enlightened’ reporter). But of course this point cuts both ways: if the Americans have good reason to be fearful, that also means they have good reason to keep fighting.

Unsurprisingly, the terrorists’ cause is almost completely unspecified – although I can reveal, without giving too much away, that the group is genuine. (At the risk of sounding like Nick Cohen, I was genuinely surprised that the terrorists didn’t turn out to be some kind of CIA/Mossad front; that’s a very available storyline on dramatic grounds alone.) They are shown as motivated by hatred both of the US and of the effects of US foreign policy; their anger feeds on the Americans’ naivety and their conviction that they stand for peace and democracy. Having made any kind of democrat/terrorist opposition problematic, the film gestures towards an alternative polarisation, between those who stand for peace and reconciliation (including the noble and far-sighted POTUS) and those who call for war without end (including both the terrorists and the President’s advisors). (The wise POTUS and his scheming advisors – a very old theme, and not a particularly radical one.) However, a gesture is all it is; whether POTUS stands for peace or war, when push comes to shove he still needs to be saved from the terrorists. More to the point, even if their motivation is understandable (and their grasp of technology is impressive) the terrorists are still evil fanatics who must be defeated; they are, after all, terrorists.

I’m not sure what the multiple-point-of-view gimmick adds up to in the end; all the narratives are ultimately consistent with one another, so the film isn’t making a point about subjectivity. I think it’s about the sense that nobody gets a complete picture of what’s going on, so that no first-person account can really be trusted (including your own). On the other hand, the news media – who are well placed to assemble a composite picture from multiple sources – are so dedicated to producing a coherent and sanitised version of events that their account can be trusted least of all. We’re back with the paranoid mood that makes this film at once more interesting than it looks and less radical than it seems to think it is. Scepticism carried to this level is ultimately rather disempowering: we can’t know what’s going on, they‘re probably one jump ahead anyway, let’s just keep on keeping on and hope we get lucky. What’s taken to be the American view of the world gets roundly criticised in this film; this world definitely isn’t a safe place for American good intentions. But, with the exception of the President’s bellicose advisors, those good intentions are never challenged – indeed, American good intentions ultimately save the day – so we’re left with not much more than a sense of omnipresent threat. The politics this feeds into is ultimately rather nasty – dogged, fearful, critical of what the USA does but willing to do anything to defend what America is, as incarnated in the wise and noble POTUS.

I’m afraid the film is right about one thing – that is about as political as a mainstream action film can get these days. It’s a lot more political than The Spiderwick Chronicles, anyway.

Update 1/4/08: we watched The Last King of Scotland this evening. Simon McBurney’s very good in it, Forest Whitaker’s brilliant and the locations are stunning, but that’s about it. The lead character’s an annoying twerp, the plot’s unbelievable and the action of the film bears almost no resemblance to the book it’s supposedly based on. On balance I’d rather have been watching Vantage Point.

Fighting again

Andy draws our attention to this statement by Alex Callinicos (‘for the SWP Central Committee’):

as we put it in our ‘International Perspectives 2005’, ‘if the movements are most advanced in Latin America, the most important front in the struggle against US imperialism is in Iraq.’ It is the resistance in Iraq that is in the process of inflicting the most serious defeat American imperialism has suffered since the Vietnam War. By tying down the Pentagon’s military machine in Iraq, the resistance has made a decisive contribution to creating the space that has allowed the resistance in Latin America to develop and, in the cases of Venezuela and Bolivia, to develop a more explicitly anti-capitalist dynamic. Therefore we believe that the most important single internationalist task of revolutionaries today is to build the international movement against the ‘war on terrorism’. Defeating the Bush administration’s imperialist offensive is critical to the success of every struggle against neoliberalism and capitalism, including those in Venezuela and Bolivia. This is particularly important for revolutionaries in the advanced capitalist world since it gives a task that relates directly to the politics of our own societies rather than merely leave us to cheerlead for Latin American revolutions.

There are three propositions here. Firstly, US imperialism essentially rules the world and will quash any development in the direction of socialism or self-rule, unless it can be challenged by military force. For the anti-capitalist movements of Latin America to develop, they needed political space – and a decisive contribution to creating the space was made by the resistance to the invasion of Iraq, specifically by its success in tying down the Pentagon’s military machine. It follows (secondly) that setbacks to US imperialism – and, specifically, military setbacks – are more important and more worthy of support than any developments in the direction of socialism, since these are only possible on the condition that US imperialism is defeated (or at least tied down). Hence the resistance in Iraq matters more than the anti-capitalist movements of Latin America; they may be more advanced politically, but Iraq is the most important front in the struggle against US imperialism. It follows that building the international movement against the ‘war on terrorism’ is more important than solidarity work with Venezuela (or Bolivia, or anywhere else not currently in a state of war with the US). Thirdly, for us in the advanced capitalist world the anti-imperialist struggle of the Iraqi resistance is especially relevant, since the countries of the advanced capitalist world are, not to put too fine a point on it, doing the damage. This is therefore a task that relates directly to the politics of our own societies rather than mere ‘cheerleading’.

My problem with this analysis starts at the end. To start with, I’m not at all clear what the ‘task’ being proposed actually is. I don’t believe the SWP is advocating the formation of an International Brigade to stand shoulder to shoulder with the Iraqi resistance, or calling for the disruption of the British war effort; I don’t even believe they go so far as to cheerlead for the Iraqi resistance, at least not in material intended for public consumption. If revolutionaries in the advanced capitalist world have any role in the international movement against the ‘war on terrorism’, it seems to consist of a demonstrative withdrawal of support from that war – and we hardly need a revolutionary cadre to do that.

But let’s say, for the sake of argument, that expressing opposition to the war in Iraq is in fact a contribution to the struggle against US imperialism. Even if this were the case, I’d struggle to see how this would take priority over more positive developments towards socialism. This point relates to Callinicos’s other assertion, that mobilising against the war is a task that relates directly to the politics of our own societies. For that to be the case, this would surely have to be a campaign that resonated with broader social issues and found points of leverage within existing divisions in society. (If you remember the miners’ strike, think how that single issue ramified into areas from gender roles to welfare spending to nuclear power – all of them deeply contentious and all offering a terrain for further mobilisation.) By contrast, almost nobody outside Westminster actually supports the war; this is not in any obvious way a divisive issue, which severely limits its potential for broader mobilisation. (The SWP’s sotto voce endorsement of the Iraqi resistance has the opposite problem, as hardly anyone outside the party agrees with it.)

The point, for the depleted forces of the Left in the advanced capitalist world, has to be what we can actually achieve. The implicit assumption underlying Callinicos’s analysis seems to be that, in ourselves and for ourselves, we can achieve nothing. Globally, the precondition for any advance towards socialism is the military defeat of our own nation and its allies; in the absence of that, every struggle against neoliberalism and capitalism will be doomed. This is politics reimagined as a game of Risk: a nation can only be available for Socialism if it’s not occupied by Imperialism, or if Imperialism has had to send its armies elsewhere. The message for socialists in nations of the Imperialist heartland (such as this one) is simple: don’t you know there’s a war on? Any other demands can and should be suspended for the duration.

I find this a bleak and, effectively, anti-political world view; I find it hard to imagine it being held seriously by anyone who’d recently been involved in a political campaign in this country. Because there is still class conflict in advanced capitalist nations; we may be aristocrats of labour on a world scale, but there are still divisions for socialists to open up, contradictions to exacerbate – and gains to be made. I don’t pretend to know the best or most fruitful approach to doing so, but I am pretty sure it won’t begin with a demand that’s embarrassingly uncontroversial (“Troops out of Iraq”) – or one that’s just plain embarrassing (“Victory to the Iraqi resistance!”).

Plans that have far-reaching effects

Katrina update. Back here, I wrote:

Louisiana, we now know (thanks to China at Lenin’s Tomb) was one of the areas where the ‘free market’ reforms of FEMA took effect: in 2004, a private consultancy called IEM was paid half a million tax dollars to develop a ‘Catastrophic Hurricane Disaster Plan‘. It’s not clear whether this plan was ever completed, let alone implemented. According to one source (cited by China), hurricane-oriented workshops in July and December 2004 produced “a series of functional plans that may be implemented immediately”; moreover, “resource shortfalls were identified early, saving valuable time in the event an actual response is warranted.” However, a January 2005 report from the National Emergency Management Association (PDF) notes, “Participants from this exercise are waiting for a private contractor to finish the after-action report and plans from this exercise”. Perhaps IEM’s ‘functional plans’ weren’t quite finished after all.

That NEMA report was dated 21st January 2005. You’d think that IEM would have got its ‘functional plans’ ready to go some time in the next seven months, but maybe not. Perhaps the reason why the local and national response to Katrina looked so shambolic was, quite simply, that the people in charge didn’t know what to do.

Here is an important post by Greg of Suspect Device, who was present at the July 2004 ‘Hurricane Pam’ exercise. You should read the whole thing, but here are a few particularly striking quotes:

As with most IEM projects, the Hurricane Pam exercise was put together at the last minute, in a blind animal panic with no time for refinement, testing, or subtlety, but it still was a remarkable and bold idea.

Attendees included emergency managers from all across Louisiana, representatives from the EPA, the National Guard, the Department of Wildlife and Fisheries, the DOTD, the Red Cross (who I remember as being marginalized and tolerated at best, with more than a little eye rolling from the “professionals”), the State Police, and many others. Also taking on important roles were representatives from the Army Corps of Engineers and FEMA, who provided facilitators, computers, and a great deal of support.

There was a certain amount of contention, a few turf wars, some loud talk. None if it consequential, in the end, because of the single greatest emollient: FEMA. The Federal Emergency Management Agency promised the moon and the stars. They promised to have 1,000,000 bottles of water per day coming into affected areas within 48 hours. They promised massive prestaging with water, ice, medical supplies and generators. Anything that was needed, they would have either in place as the storm hit or ready to move in immediately after. All it would take is a phone call from local officials to the state, who would then call FEMA, and it would be done. There were contracts-in-place with major vendors across the country and prestaging areas were already determined (I’ll have more to say about this later, but this is one reason FEMA has rejected large donations and turned back freelance shipments of water, medical supplies, food, etc: they have contracts in place to purchase those items, and accepting the same product from another source could be construed as breach of contract, and could lead to contract cancellation, thus removing a reliable source of product from the pool of available resources. I’m not saying I agree with this — in fact, I don’t, and think it’s boneheaded — but the reasoning is that if they accept five semis of water from the east Weewau, Wisconsin, Chamber of Commerce, the water supplier who is contractually bound to provide 100,000 gallons per day will be freed from that obligation.

The organizers of the exercise … insisted that the plans contain no “fairy dust”: no magical leaps of supply chains or providers … Everyone tried to keep the fairy dust to a minimum, and they did so, for the most part, despite having big plans: LSU, Southern, Southeastern and other campuses dismissed for the semester and turned into giant triage centers/tent cities; acres of temporary housing built on government-owned land; C-130 transport planes ferrying evacuees to relatives in other states, and so on. Bold plans, but doable, with cooperation. A comprehensive plan was beginning to emerge.Except that it didn’t. A followup conference, to iron out difficulties in some of the individual plans and to formalize presentation of the final package, scheduled for either late ’04 or early ’05 — I can’t remember and can find no mention of the followup event on the web — was cancelled at the last minute, due to lack of funding (which agency called the cancellation, I’m not sure, although the lack of funds would take it all back to FEMA, in the end).

So: Louisiana did have a hurricane plan, but was devising a new one, to be based on recommendation from the people who would actually be doing the work. The need to evacuate people from impact areas, including those without transportation or the means to obtain it, was discussed, despite media assertions to the contrary. … There were and are officials in Louisiana, including New Orleans Emergency Management, who know the limitations of current planning and who have been trying to come up with a better solution.

The problem is FEMA, and by extension the Department of Homeland Security, which gobbled FEMA up in 2003. FEMA promised more than they could deliver. They cut off deeper, perhaps more meaningful discussion and planning by handing out empty promises. The plans that were made — which were not given any sort of stamp of authority — were never distributed or otherwise made available to those who most needed stable guidance; they vanished into the maw of FEMA

In comments, Greg sums up:

the state didn’t convene the second Pam workshop, to flesh out the plan, because FEMA cancelled the funding, and that even the skeletal plans that were created are not available, because they’re technically FEMA property and FEMA hasn’t released them.

Greg also notes that the number of people without their own transport in south-eastern Louisiana was estimated at 100,000; he adds

The notion of doing something to evacuate those without transport was raised late in the game, but was left as an action item for the followup meetings.

It sounds as if the December 2004 meeting described here had not in fact taken place, because FEMA cancelled the funding.

It’s not clear whether this plan was ever completed, let alone implemented. I think it’s clear now. What’s worse than handing responsibility for vital social support functions to a private company (along with a suitcase full of money)? Doing all that, then pulling the plug on them before they’ve finished the job. FEMA management aren’t just ideologically-driven bureaucrats – they’re incompetent ideologically-driven bureaucrats.

What the public gets

One possible reason why the aftermath of Katrina has been so dreadful is provided by the piece by Jamie I quoted earlier. There’s something weirdly soviet about all this. We’re seeing this immensely powerful country which has somehow stopped working. Perhaps we should take this image literally: perhaps the reason why it looks as if the US Government is broken is that the US Government, or at least its capacity to act promptly and effectively, is broken.

Or rather, the government’s effectiveness has been broken. This article from 2004 throws some light on the weirdly sclerotic approach which the Federal Emergency Management Agency has displayed during the crisis. Over the last few years, FEMA has been systematically exposed to the logic of the capitalist market. Firstly, the agency has been told that everything it does could be done just as well by external contractors and consultancies; the result has been cost-cutting and corner-cutting, running to stand still and general demoralisation. Secondly, FEMA’s own services have been marketised – thrown open to competitive bidding from potential ‘clients’. The predictable result has been that FEMA’s attention goes disproportionately to richer areas, rather than to those most at risk (such as Louisiana). Thirdly, preventative and ‘mitigating’ action – protecting people from natural disasters in advance rather than clearing up afterwards – has been downgraded, despite having been one of FEMA’s great strengths. There is, after all, no market logic to this type of action: there’s no demand-pull if the disaster has yet to happen. (Come to that, if it hasn’t happened yet it may not happen at all, and then how would you cost-justify your ‘mitigation’?) Read on:

In June [2004], Pleasant Mann, a 16-year FEMA veteran who heads the agency’s government employee union, wrote members of Congress to warn of the agency’s decay. “Over the past three-and-one-half years, FEMA has gone from being a model agency to being one where funds are being misspent, employee morale has fallen, and our nation’s emergency management capability is being eroded,” he wrote. “Our professional staff are being systematically replaced by politically connected novices and contractors.”

From its first months in office, the Bush administration made it clear that emergency programs, like much of the federal government, were in for a major reorientation. … The White House quickly launched a government-wide effort to privatize public services, including key elements of disaster management. Bush’s first budget director, Mitch Daniels, spelled out the philosophy in remarks at an April 2001 conference: “The general idea–that the business of government is not to provide services, but to make sure that they are provided–seems self-evident to me,” he said.

As a result, says a disaster program administrator who insists on anonymity, “We have to compete for our jobs–we have to prove that we can do it cheaper than a contractor.” And when it comes to handling disasters, the FEMA employee stresses, cheaper is not necessarily better, and the new outsourcing requirements sometimes slow the agency’s operations.William Waugh, a disaster expert at Georgia State University who has written training programs for FEMA, warns that the rise of a “consultant culture” has not served emergency programs well. “It’s part of a widespread problem of government contracting out capabilities,” he says. “Pretty soon governments can’t do things because they’ve given up those capabilities to the private sector. And private corporations don’t necessarily maintain those capabilities.”

In recent congressional testimony, a NEMA representative noted that “in a purely competitive grant program, lower income communities, those most often at risk to natural disaster, will not effectively compete with more prosperous cities…. The prevention of repetitive damages caused by disasters would go largely unprepared in less-affluent and smaller communities.”

And indeed, some in-need areas have been inexplicably left out of the program. “In a sense, Louisiana is the flood plain of the nation,” noted a 2002 FEMA report. “Louisiana waterways drain two-thirds of the continental United States. Precipitation in New York, the Dakotas, even Idaho and the Province of Alberta, finds its way to Louisiana’s coastline.” As a result, flooding is a constant threat, and the state has an estimated 18,000 buildings that have been repeatedly damaged by flood waters–the highest number of any state. And yet, this summer FEMA denied Louisiana communities’ pre-disaster mitigation funding requests. In Jefferson Parish, part of the New Orleans metropolitan area, flood zone manager Tom Rodrigue is baffled by the development. “You would think we would get maximum consideration” for the funds, he says. “This is what the grant program called for. We were more than qualified for it.”

Within FEMA, the shift away from mitigation programs is so pronounced that many long-time specialists in the field have quit. “The priority is no longer on prevention,” says the FEMA administrator. “Mitigation, honestly, is the orphaned stepchild. People are leaving it in droves.” In fact, disaster professionals are leaving many parts of FEMA in droves, compromising the agency’s ability to do its job. “Since last year, so many people have left who had developed most of our basic programs,” Mann says. “A lot of the institutional knowledge is gone. Everyone who was able to retire has left, and then a lot of people have moved to other agencies.”

A lot of the institutional knowledge is gone. In the name of not doing anything the free market could do – and not doing anything the free market wouldn’t do, because anything the market wouldn’t do can’t be worth doing – the government has, in effect, broken itself. It’s divested itself of so many responsibilities that, when disaster strikes, the capabilities which it needed to maintain in order to meet those responsibilities just aren’t there any more. Paul Krugman‘s peroration is horribly persuasive:

The reason the military wasn’t rushed in to help along the Gulf Coast is, I believe, the same reason nothing was done to stop looting after the fall of Baghdad. Flood control was neglected for the same reason our troops in Iraq didn’t get adequate armor. At a fundamental level, I’d argue, our current leaders just aren’t serious about some of the essential functions of government. They like waging war, but they don’t like providing security, rescuing those in need or spending on preventive measures.

So America, once famous for its can-do attitude, now has a can’t-do government that makes excuses instead of doing its job.

Which brings us back to Jamie’s strange ‘Soviet’ parallel. The last years of the Soviet system saw a command economy undermined from within by a pervasive disillusionment with the system: if you were a factory manager, not only was there no point trying to reach your targets, after a certain point there was no point even bothering to doctor the figures to make it look as if you had. Everyone knew – above you in the chain of command as well as below – that the system wasn’t working, if it ever had. Worse, everyone knew that the system they had in the West – where supply and demand information was exposed through the price mechanism – worked better. In that situation, there was no point keeping the system working, or even feeding the system the lies it needed to pretend it was still working. And so the system ground to a halt and fell apart. Unfortunately there wasn’t much to replace it, initially; the years after the collapse were dark (note the change in the death rate between 1992 and 1993, in particular).

Mutatis mutandis – and yes, that’s a lot of mutandis – something comparable seems to be happening in the USA; there, ironically, the ideology which is corroding the machinery of government is promulgated by the government itself. For the Bushites, it seems, the function of government is firstly to maintain a favourable environment for business, and secondly to step out of the way and let business do its thing. When this worldview is superimposed on the prudential, interventionist, humanitarian public-service ethic of an agency like FEMA, the result is confusion and bureaucratic paralysis at best. At worst… It’s worth remembering that FEMA is now functionally subordinate to the Department of Homeland Security, founded after September 11; this may help explain why FEMA’s interventions in New Orleans placed such an emphasis on securing the perimeter of the city and ensuring that nobody, as a general policy, moved. The triumph of the Homeland Security worldview: natural disasters as a public order problem.

One last point. Louisiana, we now know (thanks to China at Lenin’s Tomb) was one of the areas where the ‘free market’ reforms of FEMA took effect: in 2004, a private consultancy called IEM was paid half a million tax dollars to develop a ‘Catastrophic Hurricane Disaster Plan‘. It’s not clear whether this plan was ever completed, let alone implemented. According to one source (cited by China), hurricane-oriented workshops in July and December 2004 produced “a series of functional plans that may be implemented immediately”; moreover, “resource shortfalls were identified early, saving valuable time in the event an actual response is warranted.” However, a January 2005 report from the National Emergency Management Association (PDF) notes, “Participants from this exercise are waiting for a private contractor to finish the after-action report and plans from this exercise”. Perhaps IEM’s ‘functional plans’ weren’t quite finished after all.

I said I had a theory – well, two theories, but this is long enough already; I’ll keep the other one for the next post. Here’s a theory. That NEMA report was dated 21st January 2005. You’d think that IEM would have got its ‘functional plans’ ready to go some time in the next seven months, but maybe not. Perhaps the reason why the local and national response to Katrina looked so shambolic was, quite simply, that the people in charge didn’t know what to do. Oh, sure, they’d had policies and procedures in place for this kind of thing, but those were the old procedures. Under the new procedures… well, funny thing, they’d had a presentation about the new procedures and it all looked pretty good, and then an email had gone round saying the new procedures were about to be issued, but that was a while ago and they should really have had them by now…

Ridiculous, of course – that couldn’t happen. Not in America.

Update: Shelley of Burningbird has some relevant reflections and pointers here. In particular, Shelley links to some searching questions about the preparation for and the response to Katrina, and to this extraordinary piece by Dave Rogers. Dave tells some sea stories, does some serious thinking about the meanings of faith, honour and leadership, and comes to conclusions similar to some of the things I’ve said in this post, but with less pussyfooting. Finally, Dave in turn links to this bizarre piece by Daniel Henninger; all I’ve got to say about that is that if I’m right, Henninger is precisely, diametrically, dead wrong. (And, I suppose, vice versa, if you insist.)

For Tomorrow (IX) – Yeah yeah, yeah, yeah

Here’s a depressing thought. As I write, Electoral Calculus is predicting, on the basis of opinion polls to date, that Labour will win a majority of 142. Where in 2001 they took 42% of the vote and 403 seats (61.2% of the House), they’re currently set fair to take 38.8% of the vote and 394 seats (61% of the new House). Assume that the pollsters are wrong – or rather, that the atypically Labour-sceptical YouGov are right; add the maximum feasible effects of tactical voting; and you get… a Labour majority of 16. Hung parliament? Not this time round. Even if the goal is to keep the ultimate Labour majority below 50 (say), there’s a lot of work to be done – and I’m not sure who’s able to do it.

Just over a year ago, there was a lot of discussion in the liberal American blogosphere of Howard Dean’s candidacy for the Democratic presidential nomination. It ended in tears; one of the key turning points seems to have been a concession speech which turned into an embarrassingly triumphalist “Kinnock in Sheffield” moment (comically hostile account here).

Anyway, the Dean campaign had three interesting attributes. It was politically radical (or, if you’re American, liberal), and radical in populist, anti-establishment ways. Its candidate appeared to be in the lead – way in the lead – throughout the early stages of the campaign, despite ultimately failing miserably. And it made heavy use of Net technologies – blogs and IM and… er… other things that I’m not even cool enough to know about. I mean, this was the kind of campaign that would have picked up an RSS feed of its del.icio.us bookmarks on its WAP phone if it could have done. (And no, I wasn’t about to say the B word, but hold that thought.)

Clay Shirky, who often combines genuinely suggestive ideas with dreadfully rickety supporting arguments, thought that the combination of the second and third factors was no coincidence and argued the case here, here and here. The argument was weighed in the balance and found wanting in a number of places, most interestingly here and here. Nevertheless, along the way Clay made some telling points. For example:

The size of the MeetUp in NYC was as much a testament to MeetUp as to Dean — it’s a wonderful tool for turning interest into attendance, but it created a false sense of broad enthusiasm. Prior to MeetUp, getting 300 people to turn out would have meant a huge and latent population of Dean supporters, but because MeetUp makes it easier to gather the faithful, it confused us into thinking that we were seeing an increase in Dean support, rather than a decrease in the hassle of organizing groups. We’ve seen this sort of effect before, as when written correspondence on letterhead stopped being a sign of a solvent company, thanks to the desktop publishing revolution

And:

Margaret Mead once said “Never doubt that a small group of thoughtful, committed people can change the world. Indeed, it is the only thing that ever has.”

It’s hard to understand, when you sense yourself to be one of Mead’s thoughtful and committed people, that someone who doesn’t even understand the issues can amble on down to the local elementary school and wipe out your vote, and it’s even harder to understand that the system is designed to work that way.

And, putting the two together:

the pleasures of life online are precisely the way they provide a respite from the vagaries of the real world.

We also know from usability testing that the difference between “would you” and “will you” is enormous — when “would you use this product?” changes to “will you use it?”, user behavior frequently changes dramatically. “Would you vote for Howard Dean?” and “Will you vote for Howard Dean?” are two different questions, and it may be that a lot of people who “would” vote for Dean, in some hypothetical world where you could vote in the same way you can make a political donation on Amazon, didn’t actually vote for him when it meant skipping dinner with friends to drive downtown in the freezing cold and venture into some church basement with people who might prefer some other candidate to Dean.

You can see where I’m going with this one. Several of the sites in my blogroll are supporting anti-Labour tactical voting – but how many hits do those sites get? More to the point, how many minds do they change? Backing Blair, setting aside my differences with them for the moment, have actually got out and talked to people (or at people), but even they aren’t likely to have had much of an effect. Their proudest moment seems to have been preaching to the assembled Nathans of Soho.

In a few, gratifying instances, it really seems as if we’ve won the argument. But most of the time we’re just not reaching that many people. Perhaps there aren’t enough of us to make a difference; perhaps we need to post less and talk more. (Excitingly, this evening I briefly persuaded my mother (who lives in the Pavilion constituency in Brighton) to vote Green. Unfortunately, by the end of the phone call she’d remembered that she likes the local MP and doesn’t like her Green councillor, and swung back to Labour.)

Or perhaps anti-Labour protest voting is already an idea that’s in everybody’s mind, and I’m worrying about nothing. I don’t know. But the way it looks tonight is that Labour are still heading for a three-figure majority. I just hope that some of the posts that have appeared here (and on other, much better-known sites) have made that a bit less likely; and I hope that posting this stuff hasn’t diverted our energies from more productive alternatives. (And I hope Keith Taylor doesn’t lose to David Lepper by one vote.)

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