I have been in the midst of a transition to a new, albeit temporary, job at the International Peace Research Institute, Oslo (PRIO) where I will be helping to run the Norwegian Initiative on Small Arms Transfers. So now, I am in Norway, and, yes, it is snowing as I write this.

As such, what with traveling, unpacking, settling in, et cetera I have not been checking in to the PSA blog every day. But I assumed people would continue to comment on the important issues of the day.

Hmmm, maybe not. Where is the commentary re Israel’s invasion of Gaza? Checking the blog I’m seen just one, and I find that rather appalling.

I have to say, especially as a Jew, that I used to consider the charge of lack of balanced coverage of Israel in the media to be frequently overstated, similar to the charge that America’s Middle East policy was set by the American Israel Public Affairs Committee.

But not this time. Since some people erroneously assume that Jews around the world fully support Israel in everything it does, like the people in this demonstration, I feel I must dissent from the orthodoxy.

And I am not the only one. Consider what J Street, the American Jewish David to AIPAC’s Goliath, recently wrote:

J Street understands that Hamas is a terrorist organization and a harsh enemy.  We are neither dovish nor pacifist, nor are we blindly opposed to the use of force.  We support Israel in defending and protecting its citizens from attack, including through military action if necessary and appropriate to the threat.  We believe, however, that force cannot be Israel’s only or preponderant response – even to Hamas.

We are pragmatists grounded in the real world and the lessons it teaches.  As such – and as avid supporters of Israel – we are asking whether the specific actions taken by Israel in Gaza actually do advance Israel’s and America’s interests.  In this case, J Street believes they do not.  We believe that the actions taken this week – disproportionate to the threat and escalatory in nature – will be seen, with time, as counterproductive.  They will further isolate Israel and the US internationally, deepen hatred among the Palestinian and Israel peoples, foment extremism throughout the Arab world and undercut the position of more moderate Arab regimes.

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Listening to the Senate confirmation hearings of Secretary of State-designate Hilary Clinton and Secretary of Energy-designate Dr. Steven Chu has been fascinating and encouraging for many reasons.  For one thing, both nominees have evinced a clear focus on preventing WMD proliferation and terrorism, and doing so in a manner that takes full advantage of the wide range of tools and programs within the federal government.  More importantly, both have discussed the need for inter-agency coordination and bipartisan cooperation to get the job done.  Just take a look at the bipartisan love fest at the Clinton hearing:

CLINTON …..For me, consultation is not a catch word. It is a commitment. The president-elect and I believe that we must return to the time honored principle of bipartisanship in our foreign policy, an approach that has served our nation well.

KERRY: …I’d just say to all my colleagues, I think we all know this, that this committee and the Congress, in its role in foreign policy, has been at its strongest when we’ve been bipartisan and I think the old adage about politics ending at the water’s edge with respect to diplomacy and our national security interest is something that would serve us well as a guidepost as we think about the enormity of the choices that we’re going to face in the days ahead.

VOINOVICH: … …The thing I’d like to spend some time on is management. And I think Senator Corker did a pretty good job of outlining his concern about management of the department. But I think from a big picture point of view we have, if we can all work together on a bipartisan basis, an absolutely wonderful opportunity to really change the image of the United States of America.

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A very important op-ed from David Miliband – well worth reading the whole thing here. The money quote for me:

The idea of a “war on terror” gave the impression of a unified, transnational enemy, embodied in the figure of Osama bin Laden and al-Qaida. The reality is that the motivations and identities of terrorist groups are disparate. Lashkar-e-Taiba has roots in Pakistan and says its cause is Kashmir. Hezbollah says it stands for resistance to occupation of the Golan Heights. The Shia and Sunni insurgent groups in Iraq have myriad demands. They are as diverse as the 1970s European movements of the IRA, Baader-Meinhof, and Eta. All used terrorism and sometimes they supported each other, but their causes were not unified and their cooperation was opportunistic. So it is today.

The Obama administration has a great opportunity to use a number of different strategies to undercut terror groups across the globe. To do so they need to take the case specific approach Milliband recommends.

“As a vital first step, Barack Obama and his team should radically rethink how they fight terrorism. It is not only wrong but ineffectual to commit abuses in the name of fighting terrorism or to excuse abuses by repressive governments because they are thought to be allies in countering terror.”

“proud of our record on promotion of human rights. We take a back seat to no-one in our defence of human rights, whether that is helping free people in Iraq and Afghanistan or working to put an end to human traffic, or fighting for the right of every individual to worship as he or she wishes.”

Over the past few days I have noticed another spike in media talking heads suggesting that the Obama administration will find it tough to roll back the Bush admin torture/interrogation policies. The case they are making is that it is these policies that have kept us safe over the last few years.

I wish that someone would respond by reminding these media types that last year the Washington Post ran an op-ed from a US interrogator in Iraq who made clear that when his team went against the grain and did not use torture they got the intel that led to the discovery of Zarqawi. He also notes that Abu Gharib and Gitmo caused foreign fighters to flood to Iraq and calculates the number of US troop casualties caused by this flocking of foreign fighters.

 Money Quote:

“I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It’s no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me — unless you don’t count American soldiers as Americans.”

See here for more details from that piece. (more…)

I breathed a sigh of relief when I heard the news released this weekend that last year President Bush had denied a request from Israel to provide bunker buster bombs, refueling equipment, and Iraq overflight privileges for a planned attack on the Iranian nuclear enrichment facility at Natanz.  During the past several years there have been many who had predicted that a targeted American attack on Iranian nuclear facilities was inevitable.  I must admit, I remained skeptical about the Bush administration’s willingness to blunder into yet another conflict considering that it was already dealing with two wars.  Although I had always believed that the Bush administration had made a tremendous mistake in its decision to launch an invasion into Iraq back in 2003, I also felt/hoped that lessons had been learned from that experience.  Moreover, most experts seemed to indicate that the costs related to an attack on Iran greatly outweighed any potential benefits.  Surely there were some neocons in the Bush administration who still felt that a strike by Israel was the right choice.  Thankfully, this time, cooler heads prevailed.  Apparently plans for an attack on Iran never went beyond contingency planning.

I was interested by the fact that the Bush administration did use “alternative” methods to further stall the Iran’s nuclear ambitions.  Fortunately, these “alternative” methods didn’t involve waterboarding or rendition!  (yes, it’s a sad day when this is what automatically comes to mind)  What they did do was sabotage the electronic components of the equipment being imported into Iran for uranium enrichment.  Although this creative approach wouldn’t stop the development process, it would likely slow it down, which, in the end, is basically all a direct attack on Iran’s nuclear facilities would have done anyhow.  As long as US forces were not entering Iranian territory to carry out their activities, I see little problem with this “cloak and dagger” approach in lieu of an actual attack on Iranian facilities.

Certainly a direct attack on a nuclear facility was a foolish option, as most analysts agreed.  Iran could have retaliated against US troops in Iraq and such an attacked risked igniting a regional Middle East war.  These costs were high in comparison to the potential benefits, that were downgraded further by the 2007 National Intelligence Estimate that questioned if Iran was even continuing its program to develop a nuclear weapon.  Moreover, the threat from an Iranian nuclear weapon is diminished by the understanding that a nuclear strike by Iran would result in its massive retaliation by Israel or the United States. (more…)

Michael Chertoff, the current U.S. Secretary of Homeland Security, believes that international law too often gets in the way of national security.  In The Responsibility to Contain, Chertoff outlines why he believes this to be so:  many want to subordinate U.S. law and policy to poorly defined international “norms” that are not moored firmly in actual state practice; those very norms are often developed by jurists and scholars, rather than by democratically elected officials; and worse still, those international norms – referred to collectively as customary international law (CIL) – are often thought to prevent a state from taking bold, necessary measures to protect itself from terrorism.  In a nutshell, current international law is inconsistent with a healthy respect for state sovereignty and democracy, and should therefore be reconceived.

To his credit, Chertoff’s proposed solution is not to abandon international law.  Rather, he insists that the international legal order must promote and embody a new core principle, what we will call conditional sovereignty.  Conditional sovereignty involves two related ideas:  (1) individual states must recognize that each and every nation has the right to regulate its own internal political and security affairs; and (2) where a nation fails to regulate its own internal political and security affairs, other nations have a right to intervene to prevent any resulting security threats from “spreading and interfering with other states’ sovereign right to exclusive authority over their territories.” This sounds a lot like the Bush doctrine, the notion that the U.S. has a right, indeed a duty to its own citizens, to engage in preventive warfare against countries that harbor terrorists or fail to do enough to thwart terrorist activities.

The fact that Chertoff’s proposal sounds like the Bush Doctrine is not necessarily a reason to automatically reject it.  But conditional sovereignty faces a glaring problem:  Who gets to decide whether a state has been so remiss in addressing its own internal affairs that its sovereignty can be breached by another state that feels threatened, and if a state acts prematurely in attacking a state that has, in fact, not been remiss in addressing its own internal affairs, what forms of redress are available to the victim state?

Chertoff’s piece also fails to explicitly acknowledge that conditional sovereignty would essentially introduce a new category of intervention into international relations, one that has not been recognized by the primary treaty regulating the use of international force – the UN Charter.  Currently, the Charter seeks to prevent the unnecessary or overzealous use of force through limiting the use of force to situations of self-defense or to situations sanctioned by the Security Council, in the form of a Chapter VII resolution.  Of course, the Charter has its own demons and inadequacies to deal with, and Chertoff rightly highlights its inability to deal with stateless and transnational organizations as a significant obstacle in the war on terror.  However, is the best solution really to introduce a fundamentally new type of legitimate intervention, one that will undoubtedly be subject to difficult line-drawing exercises and to trading accusations of political agendas?

Chertoff, of course, is deeply and unabashedly suspicious of international law.  He thinks that it’s created by idealists and Ivy-tower thumb twiddlers who don’t understand a darn thing about the tricky challenges that Western industrialized countries face in effectively responding to terrorism.  Maybe Chertoff is right about some of those idealists and thumb twiddlers.  But what Chertoff fails to understand is that embracing a doctrine of conditional sovereignty that allows states to decide for themselves – without consulting the international community – would be to encourage precisely what civilized nations should be working together to prevent, namely unjustified military carnage.

To see why this is so, consider an example that Chertoff himself uses to advocate his version of conditional sovereignty.  Under the nuisance doctrine, domestic property law allows a homeowner to take legal action against a neighbor who fails to stop activity on his or her property that substantially infringes the rights of that homeowner.  The normative principle at work here is simple:  you must pay for what spills over into your neighbor’s property.  Chertoff argues that this norm supports conditional sovereignty, after all, why shouldn’t states have to “pay” for what they allow to happen within their own borders?  The critical flaw in this argument is that a neutral third party already exists to adjudicate nuisance disputes (i.e., domestic courts), but no such body would exist under Chertoff’s scheme to determine whether the doctrine of conditional sovereignty allows a state to take invasive steps to thwart terrorist activity taking place within the borders of one of its neighbors.  Chertoff’s conditional sovereignty would be akin to a domestic properly law regime that allowed an individual to eliminate a neighbor’s alleged nuisance without going through a neutral arbitrator or court.

International law has many purposes.  One overriding purpose is to provide a strong incentive to comply with reasonable legal rules when compliance is inconvenient, costly, or politically unpopular.  This principle applies with particular force to nations who reasonably and rationally want to protect their citizens from terrorism.  And Iraq illustrates why this principle is so important.  Bush thought that preventive war would be a good way to thwart further terrorist attacks, but invading Iraq has neither confined an existing security threat to its nation of origin nor protected the entire Western world from Al Qaeda’s malevolent designs. If nothing else, Iraq shows that the United States, a nation with unparalleled military capabilities, was not necessarily the best judge of how to promote its own national security interests.  From Iraq we’ve learned – hopefully – that there is a strong, almost irresistible temptation to deal with a national security threat rashly and poorly when a state feels empowered to act unilaterally.  And so, Chertoff’s proposed version of conditional sovereignty is simply not a viable solution to terrorism because it is a doctrine that encourages nations to be belligerent when they ought to be reflective, to be careless when care is the only way to move forward.  Chertoff gives the clearest, most cogent justification for the Bush Doctrine we’ve ever seen.  But that doesn’t change the fact that he’s dead wrong about the shape international law must take if the West is to survive terrorism.

I was planning to take this space to plug Cato’s forthcoming conference “Shaping the Obama Administration’s Counterterrorism Strategy,” but we’ve had such an overwhelming response that we’ve had to turn registrants away. But what the heck, I’ll plug it anyway since the event will be broadcast live over the Internet, and available for all to see.

I’m not surprised by the enormous interest. We have an absolutely amazing program, the top people in the fields of counterterrorism and homeland security. Mia Bloom, Steve Coll, Paddy Hillyard, Robert Hutchings, Robert Pape, Paul Pillar, Bruce Schneier, Paul Slovic, Steve Simon, the list goes on and on. Check out the full agenda here.

The tremendous interest is also a function of the conference’s unique perspective, which emphasizes a strategic approach to counterterrorism, as opposed to our current approach which is based on fear. Fear drives an ad hoc approach, one that is reactive, threat-based, and overly reliant on the military.

A key part of a more sensible, strategic approach involves communications. Talking about terrrorism in a sensible, rational way diminishes the terrorists’ ability to achieve their ends. Some of this perspective is reflected in a fascinating discussion going on right now at Cato Unbound. Lead author William Burns, who is also a speaker at our conference, has outlined his thoughts and will be joined by Bernard Finel, John Mueller, and Camille Pecastaing.

From my perspective, the message boils down to this: a strong, confident, resilient society like the the United States need not cower in fear before the likes of Osama bin Laden and Ayman al Zawahiri, petty murderers and thugs, who dare only show their faces in carefully choreographed video tapes recorded in secret locations. We have to regain our footing, restore our faith in our ability to deal with the challenge of terrorism, and not alter our way of life, and our most cherished values, in the process.

There is a fine line between vigilance and complacency, but we all must be mindful of the tradeoffs. This conference, part of a three-year project funded by The Atlantic Philanthropies, with additional support from the Open Society Institute, hopes to call attention to these tradeoffs, and hopefully move the country in a new direction that strikes a better balance between hope and fear.

Those of you who were not lucky enough to secure a coveted space in person are invited to join us online, next Monday and Tuesday, and to follow the project in the months ahead.

The Bush Administration has done a shocking amount of damage to the United States’ economy and global credibility.  Bush’s shenanigans – implementing tax cuts benefiting only the richest Americans, torturing people when seemingly convenient, ignoring the Geneva conventions, and invading Iraq on the basis of deliberately manipulated intelligence – have greatly dishonored the United States.  But what many people overlook, surely without malice, is that these shenanigans were made possible by the very architecture of the Constitution.  For that document, dear friends, only says what a president may do, leaving woefully indeterminate what a president may not do.  Hence the Bush Administration’s insistence on so many occasions that it is at liberty to do whatever it pleases in the name of national security.

The idea that the chief executive of the United States enjoys a range of powers not specifically granted by the Constitution has a long and storied pedigree.  The idea begins with the Framers themselves, learned men who, while taking great care to restrict the powers granted to the Congress in Article I, section 8, decided that the powers assigned to the president should be articulated with considerable economy – which is a gentle way of saying that the Framers didn’t limit the president’s powers in the way they should have.

Consider Article II of the Constitution.  It simply says that the president has the authority to:  (1) compel members of his own cabinet to render their opinions in writing, (2) convene special sessions of Congress, (3) set adjournment dates if the two houses of Congress cannot agree on one, (4) receive ambassadors, (5) act as the commander in chief of the armed forces, (6) veto legislation (which Congress may at its discretion override), and (7) pardon individuals convicted of crimes.  The president also shares with Congress the power to make treaties and appoint federal judges.

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Two bloggers I have a fair bit of time for addressed various aspects of the truth commission issue today. Marc Ambinder started by observing that the fight between Obama and Feinstein/Rockefeller re: Panetta is almost a debate over torture oversight in reverse (something other influential bloggers tend to agree with). Marc considers the role played by two Democratic Senate Intel leaders over the past few years:

….a growing mass of evidence suggests that the intelligence oversight panels were cowed by the President at crucial junctures, intimidated by the exigencies of politics and war.  And they knew. They knew that Abu Zubaida was subject to enhanced interrogation methods; that extraordinary renditions were frequently assigned; that the administration had vastly expanded the NSA’s collection of metadata inside the United States. 

In trying to determine where Obama wants to take the issue Ambinder quotes the new head of the OLC, Dawn Johnson: ”Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.”

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