Professor Bainbridge...on law, politics, religion, culture & food

An Alan Dershowitz Puzzle

Harvard law professor Alan Dershowitz is one of many law professors who have signed the forthcoming letter protesting the abuses at Abu Ghraib. The letter criticizes the administration for violating, inter alia, the Geneva Conventions:

International humanitarian law provides that those classified as prisoners of war are entitled to special protections against such abuses under the Third Geneva Convention, ratified by the United States in 1955. Inhabitants of occupied territories are protected under the Fourth Geneva Convention, also ratified by the United States in 1955, against physical or moral coercion to obtain information from them. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States in 1994, requires that States party take measures to prevent both torture, and other acts of cruel, inhuman, or degrading treatment.

The letter further, at least by implication, opposes the use of coercive interrogation techniques (technically the letter only calls for Congressional study of whether such techniques should be used, but the overall tone strongly supports an inference that the authors oppose their use). In his widely cited column on terrorism, however, Dershowitz opined:

THE GENEVA Conventions are so outdated and are written so broadly that they have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists. These international laws have become part of the problem, rather than part of the solution.

And, he goes on:

The treaties against all forms of torture must begin to recognize differences in degree among varying forms of rough interrogation, ranging from trickery and humiliation, on the one hand, to lethal torture on the other. They must also recognize that any country faced with a ticking-time-bomb terrorist would resort to some forms of interrogation that are today prohibited by the treaty.

Am I missing something? It's hard to believe the author of those words could sign the law professors' letter, which embraces the Geneva Conventions and the treaties against torture with such enthusiaism (not to mention advocating an expansive and disputed view of their interpretation). Could there be a little partisanship at work? (Nah. Law professors are never partisan, are they? Heh.) Personally, I'd be willing to sign a letter based on Dershowitz's measured and thoughtful column; I'd suggest he try to organize one instead of signing on to the circulating draft.

Law Professor Letter re Abu Ghraib

A bunch of law professors are drafting a letter to be sent Congress protesting the abuses at Abu Ghraib prison. You can access the draft letter and list of signatories here. The letter pretty much assumes the worst about the administration and the military, while adopting the most liberal interpretation of relevant law. Clearly, therefore, it is to be regarded as more of a partisan political act than opinio juris. Update: For an alternative perspective on the relevant legal rules, see former Bush administration legal expert John Yoo's column Terrorists Have No Geneva Rights. Update2: For yet another alternative perspective, be sure to check out the next post on the puzzling disconnect between the law professors' letter and signatory Alan Dershowitz's column harshly criticizing the same legal rules. Note to Leiter readers: Contrary to what you may have inferred from Brian's remarks, I have never claimed that my blog is non-partisan. Nor do I object to partisanship in letters like the one in question. What I object to is this bunch of law professors pretending to be non-partisan. If you've read that letter and have any doubts as to its partisanship, you lack eyes with which to see.

Why I Wouldn’t Have Done it that Way

Alan Kellogg got a bit worked up by my critique of the WWII Memorial:

Speer built to exalt the state over Man. The Memorial is built to honor Man, and all that Man can be if given the chance. In time the Memorial will become a part of the landscape, part of your world. Something Speer's work could never be. The Memorial will be part of daily lives, with picnics, children playing, lovers meeting. Young and old will visit, to remember and to wonder at the young gods honored there, given a small measure of divinity by the sacrifices they made.

But how will they get there?

What's more, Feldman says, "no one is asking the hard questions about what happens to that 89-year-old veteran (who visits) when the medical tents come down and the Memorial Day hoopla is over." She notes that the new memorial is "a good 15-minute walk" from the closest subway station and several blocks from the nearest public parking garages.

Heh. Okay, that was a bit snarky, but it is a small part of a larger point. The WWII Generation deserves a memorial. No dispute about that. (Although I suspect the veterans of 1776 and 1861 would have a few words to say about this greatest generation stuff.) Yet, precisely because I honor their sacrifice, I think their memorial should have been appropriate - and this memorial is far from it. Neither sentimentality nor the good motives of the memorial's proponents can immunize the project from criticism. In my view, both the location and the design were highly inappropriate. Nor am I alone in this view; even a Memorial proponent like James Pinkerton admits:

A few critics denounced the boldly assertive design. It was "watered down Albert Speer," snapped The New Yorker. It was "fascist" heckled the National Committee to Save Our Mall. To be sure, the World War Two memorial makes use of pillars and vistas in a way that Hitler and his favorite architect loved.

Although Pinkerton goes on to defend that choice, I still find it a pretty damning admission. I find it hard to believe that the GIs who blew up so many of Speer's facades would feel honored by this burst of neo-fascist architectural design.

The WWII Memorial

I do not begrudge the "Greatest Generation" their memorial in DC. After all, they kicked Nazi ass. Not to mention shredding the Greater East Asian Co-Prosperity Sphere. But I do begrudge their memorial's location smack in the middle of the beautiful and historic vista between the Lincoln and Washington Memorials. And I still think their memorial looks like something Albert Speer might have dreamed up. Sigh.

Using Chesterton to Reply to Solum on the Martial Virtues

In response to my post on the martial virtues, Larry Solum quotes a description of the trial of Socrates, from which he then poses the following excellent questions:

Are the martial virtues true human excellences? How do the martial virtues relate to the virtues of justice and beneficience? These are deep questions, but surely there are no easy answers.

I certainly agree that there are no easy answers, but in the spirit of continuing the discussion (always an enjoyable task when Larry is in the mix), let me quote an apropos passage from G.K. Chesterton's essay on Rudyard Kipling (which a reader was kind enough to pass along):

Now, Mr. Kipling is certainly wrong in his worship of militarism, but his opponents are, generally speaking, quite as wrong as he. The evil of militarism is not that it shows certain men to be fierce and haughty and excessively warlike. The evil of militarism is that it shows most men to be tame and timid and excessively peaceable. The professional soldier gains more and more power as the general courage of a community declines. Thus the Pretorian guard became more and more important in Rome as Rome became more and more luxurious and feeble. The military man gains the civil power in proportion as the civilian loses the military virtues. And as it was in ancient Rome so it is in contemporary Europe. There never was a time when nations were more militarist. There never was a time when men were less brave. All ages and all epics have sung of arms and the man; but we have effected simultaneously the deterioration of the man and the fantastic perfection of the arms. Militarism demonstrated the decadence of Rome, and it demonstrates the decadence of Prussia.

I take it that Chesterton's point is that the evils of militarism tend to arise when the martial vitues cease to be civic virtues. Alternatively, I suppose, the disconnect between martial and civic virtues may put a society in the position of, say, late Roman Gaul, powerless to resist the engulfing tide. Either way, while not claiming there are easy answers, I would claim that the growing disconnect between the martial and civic virtues is cause for grave concern. I would further claim that the legitimacy of such concern can be found in the mores of the American Founding. Clayton Cramer has unearthed a very interesting report sent by President George Washington to Congress on the necessity of a militia:

An energetic national militia is to be regarded as the capital security of a free republic, and not a standing army, forming a distinct class in the community.

It is the introduction and diffusion of vice, and corruption of manners, into the mass of the people, that renders a standing army necessary. It is when public spirit is despised, and avarice, indolence, and effeminacy of manners predominate, and prevent the establishment of institutions which would elevate the minds of the youth in the paths of virtue and honor, that a standing army is formed and riveted for ever.

Is this not an appeal to ensuring a perpetual linkage between the martial and civic virutes, grounded on much the same concerns as motivated Chesterton? Is not the final sentence of Washington's report a call to action for our own times, of which I fear he has given a precise account?

Max Boot on Iraq and the Problem of Martial Virtue

Max Boot makes an interesting point in the LA Times ($):

The panic gripping Washington over the state of Iraq makes it clear we have been spoiled by the seemingly easy, apparently bloodless victories of the last decade. From the Persian Gulf War of 1991 to the Afghanistan war of 2001, we got used to winning largely through air power. There were casualties, of course, but few of them were on our side. In Kosovo, we managed to prevail without losing a single person. We forgot what real war looks like. Iraq is providing an unwelcome reminder of how messy and costly it can be.

By comparison with the wars of the last decade, what's happening in Iraq appears to be a terrible failure. Things look a little different if you compare it with earlier conflicts.

I would argue that the problem goes deeper than Boot suggests. It is not just that we have become spoiled, it is that we as a people have largely lost the martial virtues. The United States, of course, historically has a far more ambivalent attitude towards those virtues than did, say, the Romans of the Republic or the hoplite Greeks. Admittedly, there is a strong streak of pacifism and isolationism in our history. Yet, even so, it is hard to deny the claim made by Geoffrey Perret that we are A Country Made By War . Americans have waged war often and, usually, effectively. If it were not so, we would still be British colonists clinging to a narrow strip of Atlantic coastline. Today, however, a far different ethic holds:

"Personal peace and affluence." Those would be the only values left, predicted Francis Schaeffer, as American culture drifted further and further from its biblical foundations. Americans would be willing to sacrifice their faith, their morality, their families, and even their freedoms, as long as they could feel peaceful inside and enjoy the luxuries of material prosperity.

Now we are faced with an enduring choice: will we really sacrifice all that for a false peace or will we rediscover the martial virtues? Can we again expouse the Western Way of War? I do not know the answer, but I fear that we cannot. And, I feel constrained to lay some of the blame at the feet of President Bush. His Pentagon hides away our honored dead at Dover air base, as though we should be ashamed of them. He does not call upon those of us who are too old to serve to make other sacrifices. He tries to avoid huring anybodys feelings by denying that this war is a clash of civilizations and cultures, not a border dispute. Indeed, I cannot name one thing Bush has done that seems intended to restore the martial virtues. Granted, I do not believe John Kerry would be any better. To the contrary, since the modern American left is overtly hostile to the martial virtues, a Kerry administration doubtless would be even worse. Yet, I cannot help but wonder where we could find an Abraham Lincoln or a Teddy Roosevelt when we need one. Update: My reply to Larry Solum is here.

Al Hunt on the Eucharist Controversy

In today's WSJ ($), Al Hunt complains that plans by some US bishops to withhold the Eucharist from Catholic politicians who publicly dissent from Church teaching are causing hurt feelings:

Forty-eight House Democrats, including several pro-life lawmakers, recently wrote Cardinal McCarrick to express their dismay at these calls to sanction Catholic politicians for particular policy views, warning of a backlash against the church. Rep. Rosa DeLauro, who ... initiated this move, she says, because of the "deep personal hurt" this controversy has caused among many Catholic lawmakers.

Aw, poor baby. You know, however, I am unaware of any Biblical passage or Church teaching promising that following Christ would be easy or pain-free. To the contrary, how about:

"Do not think that I have come to bring peace upon the earth. I have come to bring not peace but the sword. For I have come to set a man 'against his father, a daughter against her mother, and a daughter-in-law against her mother-in-law; and one's enemies will be those of his household.'"

"Whoever loves father or mother more than me is not worthy of me, and whoever loves son or daughter more than me is not worthy of me; and whoever does not take up his cross and follow after me is not worthy of me." (Matt. 10:33-38.)

Besides which, what is the "deep personal hurt" of a few pro-abortion legislators compared to the slaughter of millions of innoncent unborn children every year?

Volokh Catches Weisberg Again

My friend and UCLA law colleague Eugene Volokh has made his blogging name in part by exposing the misrepresentations and omissions in Slate's Jacob Weisberg Bushisms of the Day. As Eugene's latest critique shows, however, Weisberg's current Bushism of the Day is a particularly egregious misrepresentation even by Weisberg's standards. Check out Eugene's post and then email the link -- http://volokh.com/archives/archive_2004_05_21.shtml#1085606934 -- to Weisberg and tell Weisberg what you think of him.