Sunday, May 31, 2009

What’s Wrong with the Democratic Peace Hypothesis and what a decent version would look like


        This draft of an article on James Bohman’s Democracy across Borders: Demos to Demoi (MIT, 2008) will appear in the January 2010 issue of the Journal for Ethics and Global Politics, a symposium on the book.  I emphasize three themes.  First, Bohman’s book articulates a Deweyan vision of how European institutions might lead to new transnational publics which can have an influence on expanding human rights.  I set this vision in a more clearly articulated conception of democratic theory and also compare it both to Rawls’ Theory of Justice and his later Law of Peoples.  The paper thus raises core issues about democracy and international politics, in particular how guaranteeing the equal basic rights of individuals is the prerequisite for any decent theory of domestic (more democratic) and international institutions.  Second, against Bohman who thinks of changes in European institutions as primary, I emphasize the role of democratic movements from below.   As in my book Must Global Politics Constrain Democracy? (Princeton, 1999), I name this democratic internationalism and suggest that it offers the only reasonable hope or antidote to use by Presidents of wars abroad to stifle democracy and the rule of law at home (what I call in the book the anti-democratic feedback of international politics).  Democratic internationalist movements from below can accompany, foster and make real decent institutional changes from above. Third, Rawls discussed with me the original argument of Law of Peoples in which he was tempted, as Bohman is, by the interdemocratic peace hypothesis. As Gandhi once said amusingly of English civilization, “it would be nice.”  In its current form, this view is, among other weaknesses, a misleading apology for the belligerent overthrow of over 10 nonwhite democracies by the United States government during and after the Cold War.  I explained to Rawls the peculiar operationalism in philosophy of science involved in distinguishing wars, about which it is alleged that democracies are peaceful among themselves, and interventions in which the American democracy wantonly overthrows nonwhite democracies, so that the latter, for social “scientists,” somehow disappear.  Originally, this view was propounded by scholars who allowed themselves to be deceived by seemingly reliable numbers and then propagated it.  In the post-Cold War period, this originally isolated view became very widespread, even on the lips of President Clinton.  Recently, the interdemocratic peace hypothesis has become the themesong of Bush/Cheney/neoconservative crusades.  Though there is merit in the view rightly stated – for regimes which are ideally democratic, little like current oligarchies with parliamentary forms – today the argument is subject to many, often surprising counterexamples which I spell out in the paper.  It is a sign of the pretension of political “science” that a view of this sort could imagine itself to be a sound or reasonable argument, let alone to be scientific.  This example shows how a form of study based on bad philosophy of science can confuse itself into thinking that what it does has the merits of physics, chemistry and other sciences.  It would be much better for proponents to argue for their view in a complex, historically oriented way, adapting statistics to their material where possible and with care, rather than give rise, once again supposedly as “science,”  to apologies for aggression.  For a related post on operationalism, neocolonialism and social science, see here.

                                         Equal Rights as the Center of Democratization

        Well-stated modern political or democratic theory is rights-based.  Meaningful democracy rests as a precondition on the equal rights of citizens.  This ideas stems from Rousseau’s distinction between a general will – one which is impersonal and tends toward equality, that is, the equal basic rights of citizens – and a transitory will of all.  For instance, absent equal basic rights, one might imagine a possible world in which what I have called a self-undermining series of wills of all or results of so-called majority rule disenfranchises the population.  In the United States, one might think, contrahistorically, of a regime in which the women, as a majority,  disenfranchise the men, the black, latin and asian women disenfranchise the white women, and by a series of reductions by further “majorities,” three people still have the suffrage, two of whom disenfranchise one. Based on Rousseau, Rawls’ theory of justice thus emphasizes the priority of the equal liberty principle over an economic difference principle. [i]   The difference principle permits those inequalities which also benefit the least advantaged.  But the priority of the equal liberty principle rules out any inequality, otherwise beneficial to the least advantaged, which enables the rich to control the government. This priority makes equal basic rights the inescapable precondition condition for any decent majority rule or distribution of income. Note that in principle, such a regime may be international - even a democracy of demoi in James Bohman’s phrase - rather than national.

         Now Bohman emphasizes equal rights, even imagining a goal of citizenship of the world. But his conception is not explicitly part of a democratic theory.  Instead, he defends a genealogical or aetiological  conception of how a democracy of demoi could gradually generate itself, not one based on a fully elaborated or ideal picture of democracy either nationally or internationally.  In contrast, with a precondition of the equal rights, modern democratic theory suggests a different way of arguing for his approach.  Bohman, one might say, emphasizes the extension of equal basic rights beyond national borders.  He seeks to capture theoretically the insights of international human rights treaties.  He  wants  institutional means, international as well as national, for realizing these decent proclamations.  He envisions institutional venues, based on the European community, for deliberations and actions which extend such individual rights.  He wants such venues to be deliberative and to allow each, including the previously excluded, to question and participate.[ii]  He imagines a robustly “active citizenry”:

      …the issue is not merely to construct a more protective democracy, but to create conditions under which an active citizenry is capable of initiating democratization, that is, using their power to extend the scope of democratic entitlements and to establish new possibilities for creative and empowered participation.[iii]

        Yet what he says about democratization is often not obviously or very democratic; it is, in his idiom, “decentered.”  Following John Dewey, he substitutes some participatory, deliberative publics, not very well specified, for robust democratic movements   A focus on the extension of rights as the precondition of democracy highlights what is morally admirable in his argument.  It justifies such quasi-democratization and is central to whatever level of deliberation and democracy can exist in international institutions and in modern transnational regimes. Aetiologically, one might regard the process of creation of such democratization and equal rights as mutually interacting.  But what gives the process of democratization its moral force is the inclusion, as Bohman emphasizes, of the previously shunned and oppressed, the extension of basic rights.        

        Bohman’s draws his aetiological model for a democracy of demoi from the European Union which has required the extension of individual rights  in new or prospective  members, for instance,  in  Eastern Europe or Turkey, and has furthered  the internationalism of its citizens[iv]   In addition, the incorporation of Muslim Turkey might  dialectically extend democracy within Europe itself. European oppression of illegal Muslim immigrants from Morocco, many of whom drown in attempting to cross the Mediterranean to Spain, or the disregard for Algerians in France, protested by recent rebellions in the Paris suburbs, or the preference for mainly white immigrants from Eastern Europe as opposed to blacks from Africa are basic challenges for making Europe decent.   

          Critical of the weakness of the European Parliament, Bohman imagines an unfolding of democracy that allows a “reflexive” challenge to its own inadequate bases: a discussion of the further extension of rights to new groups and citizens.  He admires an Open Method of Coordination in which different countries have diverse but shared forms of deliberation on national policies which can be argued about, coordinated or chosen from at the international level.  Compared to Rawls’ Law of Peoples, these are important  advances,[v]  but whether they amount to genuine democratization – the capacity of each citizen to play an equal role, given a comparable level of experience, ability and dedication, in setting the national and international public agenda one might doubt.  Bohman’s enthusiasm for these processes leads him to say too easily that they are (potentially) democratic.  His argument thus suffers from the actual lack of democracy in the European Union – one does not routinely think of “Eureaucrats” in Brussels and  democracy together; there is a great distance between the current actuality and Bohman’s hopes in weakly specified democratic innovations.[vi]   The democracy of demoi argument is characterized by an opacity of the democracy Bohman recommends.  In contrast, he could emphasize the expansion of rights and the creation of (institutional) democratic contexts of protest, ones in which some individuals are allowed to participate and challenge prevailing, exclusionary practices.  Both of these ideas are democracy-tending; neither amounts to full or radical democratization. In these respects, Bohman recommends advances in what I might call the international underpinnings for democracy.  But if he spelled out the political and moral limitations on transnational democracy rather than using the term broadly or loosely in  contrast to other views, his argument would be more appealing.

       In addition, though he rightly criticizes “juridification,” Bohman’s argument about a democracy of demoi is also overly institutional and legalistic.  Preceding the Anglo-American aggression in Iraq, the greatest international anti-War movement in world history before a War took place. If one examines the initial Bush Pentagon proposal for “shock and awe” – to make of Baghdad a “Nagasaki” – this movement saved many lives. The aggression still murdered an unknown number of people – the Bush regime shunned collecting statistics about its crimes -  but nothing like the original plan.  This was one  concrete moral effect of this great international countermovement.  Despite the fact of popular and even United Nations resistance, however, that Bush succeeded in launching the war also demoralized many people in the movement.  More serious forms of civil disobedience and resistance are necessary to have a chance to stop such wars.[vii]  Yet a second positive impact was to make citizens aware that they had real power internally and internationally.  In America, for example, this empowerment eventually had an effect in electing Obama and shifting the direction of the polity toward a common good in many ways.   I have called such movements examples of democratic internationalism from below – ones of citizens across national boundaries who join to resist the corrupt policies of their own state(s).[viii]  Such movements are genuinely democratic in two important respects: 1) to stand up for moral decency, they rely on ordinary citizens gathering from below against the policies of their own state(s) as well as a centralized, profit-hungry mainstream or  establishment media, [ix]  2) they provide the main way to achieve the advances suggested by decent theories of international affairs, such as Rawls’s or Bohman’s.          

       Yet in most cases, a proponent of Bohman’s view might suggest, such movements are ephemeral in the sense that they do not change institutions as opposed to challenging policies.  In his idiom, we need democratization among demoi.    Though Bohman mentions the Chartist movement of English workers, demanding the 10 hour working day and universal suffrage, as his first example and notes protests against the WTO [World Trade Organization], he downplays them.  In arguing for Bohman’s position, there is no necessity to do this.  One could simply add to the virtue of democratic internationalism from below, the need for a democracy of demoi to produce more rights-advancing and deliberative results:[x]

      We ought not to overlook the deep differences between international and national public spheres and civil society, most of which concern the ways in which publics interact with institutions.  Given that formal international political organizations such as the WTO do not interact directly with political publics, oppositional counterpublics form around them to exercise influence indirectly by mobilizing popular opinion.  To the extent that transnational associations help to form such counterpublics, they contribute to the capacity of international society to democratize its relations of power and authority.  However, counterpublics do not rule; and even if they did, we should not take this as a sign of an emerging global public that speaks for the collective will of humanity (or even one that speaks for multilingual Europe). [xi]

       Even Bohman’s remark about oppositional counterpublics is elliptical and may not include demonstrations, strikes or civil disobedience.  His comment about such movements being unrepresentative of “an emerging global public” invites the rejoinder: are you really claiming that commercial experts from a few nations, disproportionally the United States, do?  Did not the 50,000 nonviolent resisters to the WTO in Seattle in 1999 represent the poor and the excluded[xii]?  Plainly, international protest movements represent – and seek to represent -  the excluded more than inimical and unaccountable capitalist institutions.[xiii]  And what is one to make of an argument where fairly obscure institutional procedures such as Open Methods of Coordination supposedly represent democratic publics to the extent they can be – such publics are mainly outside institutions  - but international protest movements, raising demands about forgiveness of debt or fair trade – do not?

      While Bohman is right that “counterpublics do not rule,” he mistakenly diminishes their public role    Once again, resistance movements helped to create the conditions for and often to support  Obama’s election – many people like me worked for Obama.  Obamaa’s Presidency has  banned torture, restored, to a considerable extent, constitutional rights, and proposed or enacted a variety of democratic social polices about education, health care, and the environment.  Further, the demands democratic protestors who on April 3, 2009  gathered outside the G-20 meeting in London with such signs as “Nature doesn’t do  bail-outs” fuse the disastrous threat of global warming (Steven Chu, the Nobel Prize winning physicist and U.S. Secretary of Energy, has suggested that by mid-century, California may lose its agriculture and become a desert, unable to sustain cities[xiv]) with the need for a productive, rather than a corrupt, finance-driven economy.  That impulse from below newly articulates and strengthens what is vital in Obama’s program.[xv]

         Bohman’s error here mirrors Rawls’.  Rawls’s wants a movement toward a law of peoples which bars aggression; yet he provides no causal, social mechanism to achieve it.  In fact, the Law of Peoples ends on a bleak Kantian note:

      If a reasonably just Society of Peoples whose members subordinate their power to reasonable aims is not possible, and human beings are largely amoral, if not incurably cynical and self-centered, one might ask, with Kant, whether it is worthwhile for human beings to live on the earth. [xvi] 

 If we cannot prevent aggression and deter American-style wars as a way of “resolving” disputes, it is doubtful that humanity has a long (say two centuries) future on this planet.  Global warming and the desolation of war go hand in hand.  This is all the more reason to underline the importance, however difficult, of democratic solidarity from below.       

      Bohman rightly thinks of ways within or broadening institutions to democratize them. Amending Bohman, one might say, the interplay or dialectic of these two forces, democratic internationalism from below on particular outrages, an increasing institutionalized democracy of demoi, is likely to forge whatever advances in decency are possible.   But democracy from below is likely to be the driving force. In America, one might also note, the international and domestic movement from below about food[xvii] have resulted in Michelle Obama planting an organic garden at the White House with the aid of the White House cooks and local high school students.  This is not yet an  institutional accomplishment, say, outlawing factory farms or tax relief for organic production – and the disaster of American “agriculture” has great influence in the administration - but it will lead to important policy and institutional results.[xviii]

           Bohman also rightly focuses extreme destitution and some of the depradations of capitalism.  But he is less insightful on this point that Rawls, who often emphasizes the dangers of extreme inequalities of wealth in corrupting government and making a formally democratic regime serve the rich.[xix]   Speaking mistakenly of “natural slaves,” Aristotle had no concept of exploitation.  But he did have a concept of oligarchy, where the rich corrupt government and opinion, and use the regime in their narrow interests.  Yet Bohman does not note the devastating impact of economic inequality on equal or democratic liberty.  Bohman refers briefly to exploitation only to dismiss it on behalf of his notion of the domination of those formally excluded in democracy, particularly the immigrant populations that (capitalist) regimes have historically preyed on:

       One might even claim that the presence of economic actors such as corporations make the term `exploitation’ descriptively more accurate.  However, exploitation does not identify the distinctly normative character of these forms of authority.  As large-scale organizations, often with vast resources, corporations operate more as nascent political authorities in that they are quite successful in imposing statuses and duties in terms of cooperation, even upon states.  While not employing simple coercion, such organizations acts as dominators by devaluing citizenship and by being able to change important statuses and powers necessary for democracy.[xx]

       In using the word domination, Bohman refers to a new stage of oligarchy with some generality or indefiniteness and without the name. In contrast, honoring Aristotle, Rousseau and Marx, I call modern capitalist democracies oligarchies with parliamentary forms.[xxi]  As the Bush period has shown, under novel threats, such forms are frail.  Would be autocrats may supplant parliaments and the rule of law with an anti-Constitutional, anti-individual rights regime: an imperial tyranny or police state, characterized by the abolition of habeas corpus (the right of each person to a day in court), illegal spying on citizens, and torture.  In the United States, these crimes were linked to a redistribution wealth from the bottom 80% of the population to the top 1/10th of one per cent. But even the previous oligarchies with parliamentary forms served the rich, as in the Clinton period, and achieved previously unknown levels of inequality.[xxii] Further, though Rawls prioritizes the equal liberty principle over the difference principle, he does not discuss,  social theoretically or empirically, whether the realization of equal liberty is possible short of a market system based on equal incomes.[xxiii]    In any case, existing inequalities enable the financially privileged to dominate the government[xxiv]  and corrupt equal liberty.  In normal times, banks and financial megacorporations like AIG[xxv] dominate politicians and the media; short of revolt, homeless people, immigrants and ordinary citizens, including the middle class, have little power, to make the government side with them.  In the current global economic disaster, with increasing protest from below, some new regulation of the financial sector, including nationalization or a breaking up of these mega-corporations, is possible.  But democratic and desirable as it is, such influence is no equivalent to popular control of the public agenda or an equal influence of ordinary citizens and such powerful institutions.  In Rawls’ or Dahl’s terms, this notion of shaping the agenda parallels Bohman’s idea of minimal democratization – that each person, especially illegal immigrants and the previously excluded, be empowered to raise questions for deliberation.   Given the realities of capitalism, Rawls’s prioritization of the principle of equal liberty effectively rules out existing (and likely many imaginary) forms of capitalist inequality, on liberal or republican grounds.[xxvi]  

      Bohman’s international vision admirably incorporates noncitizens, dominated in existing democracies, and enables them to achieve equal basic rights. But discussing democratization aetologically and not theoretically, Bohman omits the biggest obstacle: oligarchy.  If the top one per cent of income- and wealth-holders control the government and prevent popular opinion, short of mass civil disobedience, from influencing public policy (consider once again the mainstream media’s ignoring  of protests against the Iraq war and exclusion of protestors, who were right about the Bush’s administration’s lying, from mainstream television), such an oligarchy with parliamentary forms makes the equal basic rights of individuals, both citizen and newly enfranchised immigrant, formal rather than real. As Anatole France once said, the majestic capitalist version of equal freedom or democracy forbids the rich man and the homeless man equally to sleep under a bridge.[xxvii] One central reason why Bohman’s account of democratization is opaque is that oligarchy, international and national, controls such institutions (international bureaucrats, though somewhat independent, nonetheless belong to or ally with such oligarchies).

         Still, minimal democracy, as Bohman suggests, maintains important rights and may limit dramatic evils.  He relies on two social science theses, 1) Amartya Sen’s argument that even having an oppositional newspaper prevents famine and 2) the interdemocratic peace hypothesis - the notion that democratic regimes don’t go to war with another.  As Bohman rightly notes, the second thesis is much weaker – dramatically undermined by recent American rogue “unilateralism” and torture – than the former.  Bohman contends that an international diversification of democratization – one might even think here of the not very democratic United Nations Security Council in denying a quasi-legal fig-leaf[xxviii] for the Anglo-American aggression in Iraq  – might mitigate this dangerous trend.

       Sen’s thesis has an important qualification, however, which Bohman overlooks and is also relevant for the sharper deficiencies of the interdemocratic peace hypothesis. In situations of colonialism or extreme racism, despite a parliamentary regime, famine is likely to occur.  Sen emphasizes this feature of the Irish famine of 1848.  There was enough food to go around, as Bohman notes.  Yet Charles Edward Trevelyan, head of the English Treasury,

          who saw not much wrong with British economic policy in Ireland (of which he was in charge) pointed to Irish habits as part of the explanation of the famines.  Chief among the habitual failures was the tendency of the Irish poor to eat only potatoes, which made them dependent on one crop.  Indeed, Trevelyan’s view of the causation of the Irish famines permitted him to link them with his analysis of Irish cooking: ‘There is scarcely a woman of the peasant class in the West of Ireland whose culinary art exceeds the boiling of a potato.’

         As Sen amusingly replies,

         The remark is of interest not just because it is rather rare for an Englishman to find a suitable occasion for making international criticism of culinary art.  Rather, the pointing of an accusing finger at the meagerness of the diet of the Irish poor well illustrates the tendency to blame the victim.  The victims, in this view, had helped themselves to a disaster, despite the best efforts of the administration in London to prevent it.[xxix]  

      To take a modern example, racism conditioned the Bush’s administration’s non-response to hurricane Katrina,[xxx] coupled with the later driving out of New Orleans of many black families.   Racism can thus paralyze even a formally parliamentary regime and turn its leaders into murderers.[xxxi]  Bohman’s insistence on the inclusion of the previously excluded would make it easy for a proponent of his argument to emphasize this point. In any case, Sen’s contrast of the great Calcutta famine of 1943 under British rule and Indian democracy’s prevention of famine since is a powerful argument for even a minimal democratic regime.

         The interdemocratic peace hypothesis, however, is much weaker.  Bohman himself worries about the conditions under which the thesis can hold.  For a limited period of the Twentieth Century, he affirms this idea as accounting for an absence of wars between democracies; given a new era of terrorist threats, national security states, torture and the dictatorial powers of the American executive arrogated by the Bush regime, however,  he now sees this hypothesis as endangered:

        A new dialectic between the capacities of citizens  and the instrumental powers of states has not yet reached any equilibrium, so that there has now emerged a strong negative influence on democratic practices and human rights generally because of the use of state force for the sake of security.  Further, liberal democracies have not only restricted some civil rights, but have violated human rights with the use of extralegal detention centers and torture in order to achieve security.  As such, they might be said to have become less democratic, at least in the active sense  of creating enabling conditions for the exercise of normative powers.[xxxii]

         But practicing torture on the indefinitely detained and  illegally spying on most Americans, for example, are far worse than “[not] creating enabling conditions for the exercise of normative powers.”  Far from achieving “security,” American torture at Abu Ghraib, as an interrogator, whose pen name is Matt Cooper, has argued, encouraged the enlistment of many young Arabs with Al-Qaeda in Iraq, and is responsible, through suicide bombings, for the deaths of many American soldiers as well as Iraqi civilians.  In addition, the primary feature of democracy, as I have emphasized, is the equal basic rights of citizens, upheld by the rule of law.  To attack habeas corpus (the right to a day in court) for citizens, enshrined in the Magna Carta in 1218, is to subvert the first and oldest principle of the rule of law as distinct from tyranny.  To torture the American citizen Jose Padilla until he became, in his lawyer’s words, a “chair” is to commit a great crime.  The routine governmental practice of indefinite detention and torture accompanies illegal spying and harassment of protest.  On February 16, 2003, a million and a half people tried to demonstrate in New York at the United Nations against the war in Iraq.  500,000 were cordoned off in separated caged areas at the UN plaza.  The other million were diverted from the rally by police; close as sardines in a can, they lined up, shoulder to shoulder, for 30 blocks.[xxxiii]   What brutally affects often innocent Arabs picked up off the street also affects citizens.  Freedom is like a linked chain; what deprives the other and “the least of these” of the greatest of freedoms also oppresses citizens.  As Thomas Jefferson said of the Alien and Sedition Acts in 1798:  “Now that the Alien Act has attacked the immigrant [removing the Scottish and Irish editors of Republican newspapers], the citizen had better not become too confident, for already has a Sedition Act marked him for its prey.”[xxxiv]   

       Only because the Bush administration was so massively incompetent at war and managing the economy has America narrowly escaped becoming a police state.  In the context of torture, Bohman rightly suggests that an international context of democratization – at least human rights agreements, the International Criminal Court and, one might add, democratic pressure from below – have a chance of bringing to trial some of those responsible, outlawing torture and working toward the restoration of the rule of law. 

        Five problems, however, undercut even Bohman’s cautiously stated version of the interdemocratic peace hypothesis.  First, the Bush administration did not just institute torture, secret sites and extraordinary rendition for itself and tyrannies like Syria or Uzbekistan or Morocco; it also sweepingly corrupted the European democracies.  In upholding the Binyam Mohammed suit, the British High Court - the “Law Lords” - reported that British intelligence knew that Mohammed, a British resident,  had been severely tortured in Morocco.  The CIA supervised; nonetheless, at a minimum, the Blair government knew of the torture and did nothing. Upholding the rule of law, the Brown government has already launched an investigation of the subsidiary or accomplice role of English officers and officials in this torture.[xxxv] In Italy, a Muslim cleric was kidnapped on the streets of Milan by the CIA.  A case now proceeds in Italian courts against 26 members of this (in this respect) criminal organization.[xxxvi]  But an issue plainly exists about what the Italian government and intelligence services knew about this and other crimes. As the leading military power and rogue state in the world, the Bush regime corrupted many other governments, including many democracies.  Whether the rule of law and the bar on torture – the first and chief pillar of international law – will be restored is a question.  Here the action of citizen movements against torture, the international Red Cross, and decent lawyers – those who understand what law has been since the Magna Carta and why torture must be outlawed – will need to play a great role.[xxxvii]

      Secondly, Bohman contrasts the current authoritarian threat to democracy with a previous period in which the interdemocratic peace hypothesis supposedly held.  But the same caveat applies with regard to this thesis as Sen emphasizes for famines.  During and following the Cold War, the United States government has overthrown at least 10 elected, parliamentary governments, largely in less developed countries whose citizens are nonwhite.  Among others,  Guatemala in 1953, Iran in 1954,  Guyana in 1964, Indonesia in 1965, Brazil in 1965, Chile in 1973,  and the contra war against the elected Sandinistas in Nicaragua; in the post Cold War period, the US government has overthrown the elected regimes of Aristide in Haiti twice, it supported an unsuccessful coup against Venezuelan President Hugo Chavez in 2002, and had its eyes on bombing Iran – one may not like Ahmenadinijad, but he was elected prime minister - throughout the Bush-Cheney period.  Obama’s recent statement on Nowruz, the Iranian New Year,  marks the first, and very significant break with this policy.

        Instigated by the Central Intelligence Agency as part of covert, illegal American policy, these actions were plainly inimical to nonwhite democracies.  But in elaborating the interdemocratic peace hypothesis, social “scientists” distinguish between wars where each side loses 1,000 soldiers and interventions.  In a bizarre philosophy of science justification, they have sought to operationalize wars as opposed to interventions. Operationalism seeks to escape controversy about difficult concepts by producing independent, ostensibly atheoretical ways of measuring them.  But here quantitative social “science” has lost the moral thread, in what can at best be called an obtuse and what is by now, given all the evidence, a  mendacious way.   By a slight of hand, democracies are alleged to be peaceful toward one another, through citizen influence from below – I use the term peaceful in the forceful moral sense that Bohman gives it – but in fact, the American democracy has organized a pattern of subversion, violence, overthrow of regimes, and murder or ostracism of leaders (Aristide, President of Haiti, twice), involving at least ten nonwhite regimes.  In addition, it has shored up brutal standing armies and often overseen torture in military dictatorships in a far larger number.[xxxviii]  It has worked against peace, human rights, and democracy. The truth in the interdemocratic peace hypothesis is that citizens – and international movements – can make a difference in stopping or limiting wars of aggression as in Vietnam and Iraq.  Further, citizens who must fight and die make it difficult – even when reactionaries in Congress disparage “freedom fries” – to go to war with France.  But the problem occurs when the regime carries out such policies covertly, covered up by the bipartisan consensus on foreign policy in Congress (some black Congressional democrats protested vehemently against the American kidnapping of Aristide to the Central African Republic in 2005, but their voices surfaced only on Democracy Now, not in the mendacious mainstream media).[xxxix]  American democracy has been routinely subversive and murderous toward nonwhite democracies, including under George W. Bush who proclaimed the supposed virtues of whatever he meant by democracy, and most social scientific and philosophical proponents of this hypothesis have failed to notice this or responded ineptly.[xl]    

      Third, Rawls rightly chooses nonaggression as the central characteristic of his Law of Peoples.[xli]  He did not think to include non-torture here (perhaps because America shunned torture during World War II – his experience – and the army has not previously been involved in widespread torture as at Abu Ghraib).  But international law bars both aggression and torture as its cardinal points, long fought for by the United States and enshrined in American law.   For instance, Article 2, section 2 of the Convention against Torture says that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency may be invoked as a justification for torture.” The Convention against Torture was signed by President Regan in 1988 and approved by Congress in 1994.  In addition,  Article 6, section 2 of the Constitution, the Supremacy Clause, makes treaties signed by the United States the highest law of the land.[xlii] 

       In conversation, Rawls shared with me his initial hopes for the democratic peace hypothesis and I underlined the pattern of violent American interventions against democracies.  He then added a long paragraph  to Law of Peoples on the dangers of secret intervention,

        Hence, given the great shortcomings of actual, allegedly constitutional democratic regimes, it is no surprise that they should often intervene in weaker countries, including those exhibiting some aspects of a democracy, or even that they should engage in war for expansionist reasons.  As for the first situation, the United States overturned the democracies of Allende in Chile, Arbenz in Guatemala, Mossadegh in Iran, and some would add, the Sandinistas in Nicaragua.  Whatever the merits of these regimes, covert operations against them were carried out by a government prompted by monopolistic and oligarchic interests without the knowledge or criticism of the public.  This subterfuge was made easier by the handy appeal to national security in the context of superpower rivalry, which allowed such weak democracies to be cast, however implausibly, as a danger.[xliii]

 He then  imposed five ideal conditions, two of which bar oligarchy, on the kinds of democratic regimes which one might hope would be able to resist pressures for aggression against nonwhite peoples:

     b) a decent distribution of income and wealth meeting the third condition of liberalism: all citizens must be assured the all-purpose mans necessary for them to take intelligent and effective advantage of their basic freedoms.  (In the absence of this condition, those with wealth and income tend to dominate those with less and increasingly to control political power in their own favor)

     …e) Public financing of elections and ways of assuring the availability of public information on matters of policy (A statement of the need for these arrangements merely hints at what is needed both to ensure that representative and other officials are sufficiently independent of particular social and economic interests and to provide the knowledge and information upon which policies can be formed and intelligently assessed by citizens.[xliv]

       In contrast to Rawls’ ideal democracy, the oligarchic Bush-Cheney administration used the idea of democratic peace to strike at “enemies” including nonwhite democracies.  For instance, Bush’s campaign against the “axis of evil” did not bomb Iran only because the imperial power got mired down in its aggression in Iraq (Saddam Hussein was a brutal dictator previously armed and fortified by the U.S.); the United States government also overturned democracies in Haiti and Venezuela.[xlv] The rationale of the National Security Strategy of the United States 2003 is to make other countries democracies at gun-point and thus expand the supposed democratic peace.  Of this rationale,  Bohman says elliptically “It is sometimes thought that this argument could justify military intervention by democratic states into nondemocratic ones for the sake of establishing more democracies as a means for peace and security.”[xlvi]  Nothing like this is true.  The American regime has wrought great destruction in Iraq. Through the “[anti]Patriot Act,” illegally spying on Americans and torturing them, it has dramatically abridged equal liberties at home.  In what I call the anti-democratic feedback of international politics, this policy pursued an unjust imperial goal (establishing military bases and controlling Iraqi oil) linked to the subversion of American democracy at home.[xlvii]  This standard often self-destroying feature of imperial democracies has been traced by Thucydides for Athens, Machiavelli and Montequieu for Rome, and stressed by Rousseau and Marx as well.[xlviii]  My argument brings political theory into the heart of the study of the modern American regime and a previously anti-democratic international relations theory.

         Fourth, the interdemocratic peace hypothesis classifies regimes in which a minimum of 10% of the people vote in parliamentary elections as democratic. That is, in its zeal to get a statistically significant number of cases, it classifies regimes which are markedly anti-democratic toward much of their own people, often elite-based, sexist and racist regimes as democratic.   But by this standard, its paradigm case, World War I, fails.  Between 1890 and 1914,  Germany had lively parliamentary elections, with a large and growing Social Democratic Party.  The Kaiser was also a constitutional ruler internally.  On its own operationalist attempt to quantify wars, World War I pitted “democracies” – the U.S., France and Britian – against “democratic” Germany.  In fact, American political science long admired Germany as a constitutional and parliamentary state.[xlix]  Note even in Russia, in which the Duma had Bolshevik deputies, qualifies as a “democracy” on this view.

      Fifth, the effort to quantify and hence to classify many complex quasi-democratic regimes and movements as either “democracies” or “authoritarians”  characterizes many colonial wars by “democracies” as ostensibly “democratic” conquests of “authoritarian” regimes, for example the aggression of the United States against Mexico in 1846-48.  A truly morally unlovely feature of this standpoint is to classify the Vietnam War, one which pitted a mass, peasant-based anti-colonial movement against French and then U.S. imperialism as two losing efforts against “authoritarians”  on the part of “democracies.”  Since it classifies Ho Chi Minh’s government as authoritarian, and ignores the movement to reunite Vietnam, on the basis of an international treaty, the Geneva Accords and hence, on behalf of international law against the rogue United States, this view maintains that  the U.S, war to conquer Vietnam pits a “democracy” against an “authoritarian” regime.  One wonders again whether those who engage in this strange form of numerology would really want to debate about how the National Liberation Front did not represent the Vietnamese people and the Geneva Convention but American creations and clients like Ngo Dinh Diem or Marshal Thieu supposedly did.  Among other complex cases, one might also think of the characterization of the post-World War II Greek civil war between a mass movement from below, led by Communists, and an American-supported oligarchy.  In that case, one might also easily speak of a war resulting in  suppression of (a kind of) democratic movement from below even in a European regime.[l]

          Because Bohman ignores American oligarchy, he does not recognize that  the democratic peace hypothesis in its current form has very limited merit.  Abstracting from World War I, it seems only to rule out full-scale wars among “advanced,” mainly white democracies (Japan now qualifies as well).   Bohman  is once again elliptical about an extreme ideological and murderous consequence of the interdemocratic peace hypothesis, which one might infer, from his use of the passive voice, he disapproves of (and would be right to do so):   

      One such generalization that is used to lend support to the benefits of a democratic order is the so-called `democratic peace hypothesis,’ which has often been used by moral cosmopolitans and liberal nationalists to justify the policy of fostering democracy within states as the best means of creating a peaceful international order of politically organized peoples.  It is sometimes thought that this argument could justify military intervention by democratic states into nondemocratic ones for the sake of establishing more democracies as a means for peace and security.[li]

        But the American aggression in Iraq and its many horrifying consequences have given the lie to the invocation of an ostensible interdemocratic peace hypothesis by imperialist neoconservatives: to establish “democracy” at gun-point. The accompaniment of torture and the rape of Iraq for private profit, divided between Halliburton, Blackwater (now Xe), and just plain corruption (the 12 billion dollars that disappeared under the Transitional Coalition Authority and Jerry Bremer) should be sufficient to give pause to the moral proponents of such intervention (David Rieff has strikingly changed his view, for example).[lii] 

            As Rawls emphasizes and Bohman notes, the democratic peace hypothesis is something ideal, imagining greater citizen influence on the normal operations of such oligarchies, than something actual.  The aggressive, imperialist neoconservative deployment of this thesis has discredited it..  Bohman rightly seeks a democracy of demoi to limit such aggressions. But he has not plumbed the depth of the problem or confronted the difficulties for an  ideal democratic peace hypothesis in democratic theory. 

           Still I agree with Kant that republics enfranchise citizens to protest against the “pleasure party of war.’  We must seek to limit or overturn capitalist inequalities, to mitigate or eliminate oligarchy.  As the protest against the Vietnam War and the Iraq war show, ordinary people can come to see through racism and  oppose elite wars of aggression.  Protest from below accomplishes a great deal, and more sophisticated protest, allied with those in national and international institutions who either would like to do something decent or who recognize not only the hopelessness but the evil of neoconservative imperialism, would accomplish even more.  But such protest, not a social “science” interdemocratic peace hypothesis combined with an increasing democracy of demoi, is the best hope for realizing the decent.  The ideal will be much harder to achieve.

 

 



[i] My must Global Politics Constrain Democracy, ch. 5,  stresses equal individual rights as the core of a democratic conception.

[ii] Rawls Law of Peoples makes rights basic to an international conception.  As a constructivist, however, and rightly wanting to deter any imperial imposing of “rights” at gunpoint, he weakens the basic rights, for example those of women, in “well ordered hierarchies.”  For an argument that every person is objectively capable of human rights and that the denial of such rights, in any historical situation, involves real harms, see Gilbert, Democratic Individuality, ch. 1.

      For an important discussion of deliberative democracy, see Josh Cohen and Charles Sabel’s “Directly-deliberative Polyarchy,”         on which Bohman relies.

[iii] Bohman, p 182.

[iv]  For example, Europeans can study in any of the member countries, and many study in diverse settings and in other languages than their own.

[v]   To improve the formulation, a proponent of Rawls’s view could consistently adapt them.

[vi] Some years ago, the effort of Brussels to impose quasi-American restrictions on, say, the use of worms in Italy to make certain kinds of cheese is but one extreme example.

      As one concrete suggestion, Bohman rightly urges more of a role for the European Parliament.

[vii] There were also huge international movements, led by leftwing Social Democrats and Communists against World Wars I and II.  But world wars are notoriously hard to stop.  That one has not yet achieved such huge multinational victories, against all odds, is no argument against nonetheless trying.  In my judgment, popular movements came amazingly close to stopping the Anglo-American invasion of Iraq; only the complete unreality of Bush and Cheney, the cowardice of most Congressional Democrats, and the fecklessness of the mainstream media in the United States enabled the invasion.

[viii] Must Global Politics Constrain Democracy?

[ix]  On torture, alleged reporting in the New York Times commonly says: “some hold waterboarding is torture.”  They do not acknowledge that the name reflects international and American law.  By the same logic, a reporter might say: some think murder is a bad thing.

[x] Bohman, pp. 55-56.

[xi]  Ibid, pp 62-63.

[xii]  See Jeremy Brecher, ed.,  Globalization from Below.

[xiii]  The WTO is dominated by a group of 7 nations, with the United States playing a leading role.  Only commercial lobbyists are allowed to testify.  Before 1999, the WTO had overruled on behalf of capitalism all the environmentally protective, human rights sustaining democratic legislation from particular nations that had come before it. Michelle Sforza and     Whose Trade Organization?  Washington: Citizen Press, 1999.

[xiv]   In Chu’s words, "I don't think the American public has gripped in its gut what will happen. We're looking at a scenario where there's no more agriculture in California. I don't actually see how they can keep their cities going either."  Johann Hari, “The Way out of the Credit and the Climate Crunch is the Same – a Green New Deal,” The Guardian , April 3, 2003.

[xv] Whether such protests can affect, however,  his very likely disastrous escalation in Afghanistan and Pakistan remains to be seen. 

[xvi] Rawls, Law of Peoples, p. 128.  This was Rawls’s last work before he died.  The citation from Kant’s Rechtslehre is: “If justice perishes, then it is no longer worthwhile for men to live upon the earth.”

[xvii]  Jose Bove, along with other French farmers, destroyed a McDonald’s and has participated, at the World Social Forum, in uprooting gmo (genetically-modified organism) crops in Brazil.  He is part of a mainly legal, but occasionally extralegal movement against the transformation of food into “food-like” substances which do not nourish.

[xviii]  On the most obvious level, the Obama administration wants to replace federal “aid” to school lunch programs (the worst products, those not otherwise marketable) – this is a major government crime against children -  with food.

[xix] Theory of Justice, 226.  As he puts it in Political Liberalism, pp 357-58.

         [T]he institutional arrangements must not impose any undue burdens on the various political groups in society and must affect them all in an equitable manner.  Plainly, what counts as an undue burden is itself a question, and in any particular case is to be answered by reference to the purpose of achieving the fair value of the political liberties.  For example, the prohibition of large contributions from private persons or corporations to political candidates is not an undue burden (in the requisite sense) on wealthy persons and groups.  Such a prohibition may be necessary so that citizens similarly gifted and motivated have roughly an equal chance of influencing the government’s policy and attaining positions of authority irrespective of their economic and social class.  It is precisely this equality which defines the fair value of the equal liberties.

      Rousseau, whom Rawls studied and taught, speaks of the “empire of opinion” dominated by the rich.

[xx] Bohman, pp. 67,  68-69.

[xxi] Gilbert, DI,    .  MGPCD?, p. 

[xxii] Kevin Phillips, Wealth and Democracy.

[xxiii] DI, ch. 8.  See my “Equality and Social Theory in Rawls’ A Theory of Justice”  The Occasional Review, special issue on Rawls and Nozick, 1978. 

[xxiv] This remains true even with the Democrats.  With struggle from below, remarkably different political possibilities – some realizing a common good to a considerable extent – exist under oligarchy.

[xxv] With the repeal of the Glass-Steagall Act in 1998, corporations could become megabanks, and AIG, but also GE and GM established large banking sectors and increasingly discovered the seemingly unending profitability of the financial sphere.   Over the past 20 years, they have transformed America from a productive economy into a mainly financial or speculative one.   That profitability has now collapsed

[xxvi] In his later writings, Rawls’s downplaying of even the difference principle ironically accompanies an increasing emphasis on combating oligarchy; these two thoughts contradict each other.

[xxvii] “La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.” [The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.]  France, Le Lys Rouge [The Red Lily] (1894), ch. 7.

[xxviii] Aggression against another people is the cardinal moral judgment of and legal principle underlying international law (Article 2, section 4 of the United Nations Charter).  If the Security Council had voted for American and British aggression in Iraq, that decision would not have made the action legal or decent.

[xxix] Sen,  Development as Freedom, pp. 174-75

[xxx] Walking near the body of a two year old floating in the war, even a Fox reporter screamed at anchor Britt Hume: “Where’s the government?”

[xxxi]  One might also consider the recent depredations of the Israeli government in Gaza against the elected government of Hamas, a striking counterexample to the interdemocratic peace hypothesis.

[xxxii] Bohman, p. 183.

[xxxiii] In the false arrests and environmentally poisonous conditions of confinement of protestors at the 2004 Republican Convention, Mayor Bloomberg, however, would distinguish himself as a would-be tyrant. 

[xxxiv] Gilbert, Must Global Politics Constrain Democracy?, pp.  .

[xxxv] Prime Minister Gordon Brown was reluctant to do it but understands the importance of the rule of law.  See Glenn Greenwald’s blog,  March 26, 2009.

[xxxvi] In general, the covert operations wing of the CIA is engaged in aggression (secret operations in Iran), torture, murder and kidnapping.  As one looks over the long series of overthrows of democracy by quasi-secret intervention of the “intelligence” services, one might conclude that abolition of all covert activities over the last 60 years and restriction of such agencies to intelligence collection would have been better for human rights and democracy in the world and for American democracy in particular. 

[xxxvii] In Spain, Judge Balthasar Garzon has initiated investigations for suspicion of committing war crimes, under “universal jurisdiction,” of 6 Bush administration lawyers and Cheney aides.   Obama has taken steps to outlaw torture, but his retention of Guantanamo, use of the “state secrets” doctrine, and apparent willingness so far to let those responsible walk in the name of bipartisanship, threatens the restoration of the rule of law.

[xxxviii] Gilbert, MGPCD ch. 5 tells of a General’s daughter in Honduras who fought with the guerillas and was captured and tortured by Battalion 316 for 80 days.  The general threatened to publicize the name of “Mr. Mike,” the CIA officer who oversaw the torture, unless they released her.  They did.

[xxxix] Chalmers Johnson, Blowback.  Gilbert, “New Institutions for Peace and Democracy” in Sir Roland Kittrie et al, eds., True Seeds of Peace,

[xl] Gilbert, MGPCD?, p.  .

[xli] Rawls, LP. P. 37.  Principle 5 states “Peoples have the right of self-defense but no right to instigate wars for reasons other than self-defense.”  But this is the central point of the first 5 principles.

[xlii]   Article 6 section 2 of the Constitution reads: “This constitution and the laws of the United States that shall be made pursuant thereof, and all treaties made, or which shall be made, under the Authority of the United States shall be the Supreme Law of the Land; and the Judges in every state shall be bound thereby, any thing in the Constitution or laws of any State to the Contrary notwithstanding.” American law also explicitly bars torture at 18 U.S.C. 2340 and 2340a.

[xliii] LP, p. 53, and note 69.

[xliv] LP, p. 50-54.  Ironically, the novel combination of the internet and a mass movement enabled Obama to outfundraise his opponents, without such restrictions.  The American laws Rawls referred to and idealized have long been circumvented.

[xlv] The Haitian regime was weak, among other reasons, because Aristide dissolved the army.

[xlvi] Bohman, p. 174.

[xlvii] MGPCD?,  and New Institutions for Peace and Democracy.  Bohman has a formulation like mine at p. 184: “Instead of democracies making international relations among states more peaceable, the new constellation of political violence is potentially making democratic states less democratic  and less open to applying their standards of human rights and legal due process to those they deem to be threats to security.”

[xlviii] Gilbert, MGPCD? uses this central insight from historians and political theorists to criticize and revise all versions of realism and neo-realism in international relations.

[xlix] I owe this point to Amentahru Wahlrab.  See his thesis on “            .”

[l] One might also invoke the flashpoints for global war today, the nuclear armed democracies of India and Pakistan, or the government of Israel’s brutally disproportionate attack on Gaza where Hamas is an elected leadership (Gaza is of course not a state, but sadly, more like a large, open air detention center). How might a serious, interdemocratic peace hypothesis account for these cases?

[li]  Bohman, p. 174.

[lii]   David Rieff,  At the Point of a Gun: Democratic Dreams and Armed Intervention (New York: Simon & Schuster, 2005).

Wednesday, May 27, 2009

A Reactionary Two Step, Obama’s Vacillations on the Rule of Law, and the Heartening Nomination of Sonia Sotomayor

          

    Under Barack Obama, the United States government has left the era of Bush-Cheney torture behind.  In last week’s address on closing Guantanamo, Obama affirmed the rule of law against the Congressional Democrats, led by Senator Reid, who seem anxious once again to cave in to the belligerent Cheney.  As Obama rightly pointed out, “Guantanamo is a mess” and undoing what it represents is more difficult than simply releasing or transferring those who have been tortured.

      But there is a much more disturbing and inconsistent part of Obama’s speech, one that calls for the indefinite or “preventive detention” of some.  Presumably, these include members of Al-Qaida who have been tortured, cannot be tried in civilian courts or the ad hoc military tribunals he proposes (slightly less ad hoc than the Bush-Cheney rubber stamps, but far removed from a court of law), and who must be prevented from acting against the United States. One might doubt, however, how reliable the information is even in this hopefully small number of cases.   Obama is listening to his advisors here, those warning him about the political consequences of another terror strike in the United States involving anyone who is released from American custody. He is catering to the fear-mongering drumbeat from Cheney and the mainstream news media, the idea that torture is the American way, good as Jack Bauer, needed to “protect us.” Here is a grave debility of the two-party system, with campaign financing and media control in the hands of the rich.  There are always renewed moves to the right instigated by the more far right of the two parties and focused on international affairs.  The Democrats are paralyzed with fear at being thought soft on “national security.”  Such fears are central to electoral competition.

     Yet in the study of foreign affairs, such insights are isolated.  In his 1984 revised introduction to American Diplomacy, George Kennan unusually referred to “our military-industrial addiction” sustained by the dysfunctional baiting by the more right-wing party, today led explicitly by authoritarians (advocates of “commander in chief power” in emergencies like “the war on terror”), criminals (advocates or perpetrators of torture and aggression) and imperialists (neo-cons), against the not very different and compatively diffident Democrats. Even a brilliant political leader and a new majority does not alter this dynamic. For the Democrats still fear Republican revivial in the next election and make the worst of Republican fears, for instance about closing Guantanamo their own.   In Must Global Politics Constrain Democracy (Princeton, 1999), I argued that the anti-democratic feedback of international politics limits struggles for reform at home (it can be used to bait and limit or defeat reform or anti-war movements, for instance, as the Republicans constantly bait the Democrats and the Democrats cave in).  International and domestic politics thus have a complex interplay or dialectic, realized most sharply in elections and to suppress or isolate movements from below that sustain a common good.  I do an internal critique of all the versions of realism including Kennan’s and neo-realism.  Inconsistently with his new 1984 introduction, Kennan’s original book recommends that democracy be kept out of international politics which allegedly must be handled by “professional diplomats.”   His example is supposedly Woodrow Wilson at Versailles.   But the military-industrial addiction and aggressive and addiction to losing wars cannot be stopped by such professional diplomacy; they can  only be halted, as I suggest,  by a mass democratic movement from below creating pressure for a more decent possibilities in foreign policy.  In addition, neorealists reinterpret Kennan’s straightforward if reactionary distinction – professional diplomacy versus democratic influence - as a much more abstract confused matter of philosophy of science.  An impenetrable difference of levels supposedly exists between international politics and comparative or domestic politics; there are only powers in international affairs – international politics must abstract from domestic regime structure and a democracy, a tyranny, a colonialist regime, an anti-colonialist regime, and so forth all putatively have the same national interests. A neorealist supposedly cannot ask the question my book poses: what is the relation between fierce international power rivalry abroad and democracy at home?  I answer: a devastating one.  Yet in response to this question which I posed to him at a lecture he gave at the Graduate School of International Studies, Ken Waltz suggested “a theory cannot deal with everything.”  Even more unintentionally humorously, Krasner, for whom the national interest is the longterm interest of the state, suggested inconsistently: in the case of Vietnam, the anti-war movement represented the national interest. 

        In the case of today’s American torture, the mainstream media are plumbing a new depth of decadence.   They take Cheney’s war criminal stance and previous war crimes  – as chief torturer, chief advocate of water-boarding et al – with acquiescent “seriousness.” As long as one once was in a high position, one can advocate any crime toward “the enemy” – and the mainstream press will provide a chorus of approval or at least acceptance about your supposed gravity and never use the word crime in relation even to the most monstrous violations of American and international law.  Every war criminal in the world now need merely point to the Bush-Cheney regime and its echo, the American press, to justify its atrocities. 

    Now Obama is not the spineless Congressional Democratic leadership, who respond only to Republican threats (even when the Republicans are a crazed, rightwing rump party).   But he is commander in chief providing security for all Americans and probably is motivated to the latest moves by a misguided advice from his advisors (don’t be a civil libertarian; isolate them; strive for a middle ground against Cheney) given the pressure of Cheney and the Republicans.  Now Obma has moved the Democrats in this unusual historical situation:  his election represents a watershed on many issues, for instance, commitment to serious investment in a green economy as a direction to restore America’s productivity and fight global warming.  On the central issue of restoring the rule of law in America, he  initially seemed as good, but has become, despite courageously releasing the torture memos, much more ambiguous.

        Indefinite detention without trial is, as Senator Russ Feingold said in a critical letter this week to the President, outside the rule of law.  It violates habeas corpus, which since 1218 has been the cardinal point of Anglo-Saxon and Anglo-American law.  To combine indefinite detention with but recently ceased torture (and whether torture has fully ceased for instance at Bagram is doubtful) is to violate the Constitution, treaties the United States has signed and American law.  Indefinite detention may be as bad as torture.  Both are characteristic of tyranny.  Since torture often renders the tortured crazy – the American citizen Jose Padilla was described by his lawyers as being in shock, a “chair,” pathetically concerned with defending the United States at all costs, and unable to participate in his own defense – it is unclear that many of those released from Guantanamo, often broken men and teenagers,  would be able or likely to participate in attacks against the United States on American soil or elsewhere. But leaving this issue aside, the President’s duty is to uphold the Constitution of the United States.  The idea propagated by Ben Wittes of the Brookings Institution/Weekly Standard that the President pledges simply to protect all Americans is inaccurate – the President pledges to uphold the Constitution.  Moreover, this bit of Cheneyism, in fact, makes American citizens and soldiers more insecure (by committing crimes against putative terrorists, the American government breeds many more enemies and their sympathizers) and cannot be put into practice, without sacrificing what America stands for when it is decent (as Obama also reminds us); the rule of law and the equal basic liberties of citizens.  So Obama is moving here in a contradictory direction, one which undercuts the rule of law and decency which he is also working to uphold.  Further, this danger is compounded even if the Obama administration did not go in for indefinite detention.  If Obama does not allow an independent or bipartisan investigation into torture (or if Attorney General Holder does not appoint an independent counsel to investigate these crimes), then any future President of either party can, counting on the Cheney precedent and the Obama shielding of the criminals,  invoke police state powers even to detain indefinitely or torture any American citizen deemed an “enemy.”  That President would obvious use such practices against   “enemy combatants” who are often individuals picked up off the street or on the word – our soldiers and intelligence agents don’t speak the relevant languages – of interested clients (in Afghanistan, General Dostum, a murderous war criminal but a Bush ally was happy to finger his enemies, not America’s, for secret torture in indefinite detention).  So Obama is moving away from the rule of law for supposed political reasons (“to protect Americans”) in a way which will, despite his efforts to restore the rule of law, ultimately threaten the death both of democracy and the rule of law (what he rightly  names American values worth defending).

        In the New York Times last Sunday, a front page article speculated that Obama might appoint a fifth Supreme Court Justice to enhance Presidential power at the expense of the rule of law.  Since there are 4 hard line votes for authoritarianism or tyranny in emergencies on the Court (Roberts, Scalia, Alito, Thomas), one more would pretty well destroy the Constitution.  The article speculated that between Diane Wood and Elana Kagan, Obama might choose Kagan to advance his views on executive power, including indefinite detention. 

       Fortunately, the article underestimated Obama’s anti-racism and his affection for the rule of law.  Judge Sonia Sotomayor had been attacked by New Republic and other right-wing gossips and her name had disappeared from consideration in the mainstream media.  But she is a serious, moderate Puerto Rican-American judge, originally appointed first by George H.W. Bush and then to a higher judgeship by Bill Clinton.  She grew up in a housing project in the Bronx and is outspoken on the importance of diversity of experience, particularly of those who come from the oppressed and have a sense of their lives, in reaching sensible decisions on the Supreme Court (the Lily Ledbetter travesty comes to mind).  That Obama nominated her against  an ignorant campaign to undermine her is admirable (Glenn Greenwald and others spoke out about the slanders against her very forcefully).  Apparently, she does not have a record on executive power issues (and one might have hoped that the nominee would be against the tyrannical/Carl Schmittian claims recently advanced).  But she is a serious advocate of the rule of law, and support  by her  for preventive detention is, prima facie, unlikely.  Thus, Obama continues to pursue a complicated path to restoring the rule of law. He seems to have some long range vision or intent in this direction.  So far what he has done is not enough.  Some recent moves have been very bad.    Still international pressure grows and other reports – the Office of Professional Responsibility in the Justice Department’s on the travesty of law represented by the torture memos, for example, is still in the offing – will continue to build momentum toward holding those who made America the world’s greatest torture and rogue nation accountable (even worse than “my nation – the most violent government in the world” as Martin Luther King once put it in his speech at the Riverside church against the Vietnam War). We should all make every effort to increase that pressure.