wtf?

The WaPo online has been given a good tongue-lashing by – so far – every single commenter on their ‘Is Elizabeth Edwards Right to Drop John?’ discussion.

The forum set-up goes; ‘Elizabeth Edwards and her longtime husband, former senator and Presidential hopeful John Edwards, have separated, according to People magazine, via Reliable Source. … Is Elizabeth Edwards, who is battling incurable cancer, doing the right thing by separating from John? Should she file for divorce? Weigh in below.”

Responses range from to “how in the world would I know whether two people I never met should stay together? Why would the Post have such an incredibly stupid discussion?” all the way to “When The Post would offer such an idiotic, shallow, voyeuristic question for discussion, it should surprise no one that the institution of the fourth estate has failed.” The obvious question, ‘is this TMZ?’, is asked along the way.

Shame on WaPo. This is cheap journalism in both senses of the word. Once more the newspaper is called on the carpet by readers who have no difficulty seeing the difference between public interest and voyeurism. How has WaPo fallen so low?

Any of us who’ve been around the block a few times work-wise know how strong the toxic effect of a few key people can be. A whole organisational culture can shift with shocking ease from collegiality to zero sum games by the simple failure to punish bad behaviour. As soon as a minority is rewarded for – let’s call it non-cooperation because there’s such a range of behaviours that can poison a workplace – then the rest look like chumps for not piling in. But you don’t need game theory to explain something most of us have experienced. The nasty effect of ‘a few bad apples’ is nothing new. (A striking example of a good place gone radically bad is HP. Anyone thinking of voting for Carly Fiorina for public office should read this).

I’ve no particular insight to what’s happened in the Washington Post. I suspect the unbearable commercial pressures have changed the balance of power between editorial and commercial people to the point where cheapo user-created content and page views trump journalistic merit. They should listen to their readers to whom that bright line is very clear.

I’ve lost my appetite for making fun of “Charles Rowley’s blog”:http://charlesrowley.wordpress.com/2010/01/03/descent-into-tyranny/.

Descent Into Tyranny?

… If the very idea of such an invasion of your liberty enrages you, as it should enrage any man who values his liberty, then think very carefully about the health care legislation that Congress is now poised to enact and that President Obama is panting to sign into law: …

By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said that it could not do.” Orrin G. Hatch, Kenneth Blackwell and Kenneth A. Klukowski, ‘Why the Health-Care Bills are Unconstitutional’, Wall Street Journal, January 2, 2010.

The authors are surely too kind to Congress and the President. This intervention is not just unconstitutional. It is a greater act of tyranny than King George III ever envisaged. And he lost his beloved colonies for much lesser transgressions.

“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.” Thomas Jefferson, November 13, 1787.

I know that there is some competition, but David Kopel’s “explanation”:http://volokh.com/2009/11/30/swiss-vote-to-ban-minarets/ of the minaret vote as perhaps the only plausible response that solid Swiss burghers could make to secret conspiracies and sweetheart deals between their government and the “Islamonazis of Tehran” surely ranks as the most flat-out insane Volokh Conspiracy post ever. If I were one of the saner Volokh conspiracy contributors (there are several), I would be considering as rapid and public an exit as possible to avoid reputational contamination.

“Ilya Somin at the Volokhs”:http://volokh.com/2009/11/24/in-limited-praise-of-right-wing-populism/

I am no fan of populism of either the left or right-wing variety. In my view, most populist movements exploit voter ignorance and irrationality to promote policies that tend to do far more harm than good. That said, I have been pleasantly surprised by the right-wing populist reaction to the economic crisis and Obama’s policies. With rare exceptions, right-wing populists such as Glenn Beck, Rush Limbaugh, Mark Levin, and the Tea Party protesters, have advocated free market approaches to dealing with the crisis, and have attacked Obama and the Democratic Congress for seeking massive increases in government spending and regulation. They have not responded in any of several much worse ways that seemed like plausible alternatives a year ago, and may still be today. … True, much of their rhetoric is oversimplified, doesn’t take account of counterarguments, and is unfair to opponents. But the same can be said for nearly all political rhetoric directed at a popular audience made up of rationally ignorant voters who pay only very limited attention to politics and don’t understand the details of policy debates. On balance, however, the positions taken by the right-wing populists on these issues are basically simplified versions of those taken by the most sophisticated libertarian and limited-government conservative economists and policy scholars. There has been relatively little advocacy of strange, crackpot ideas or weird conspiracy theories.

I don’t agree with Somin on much of anything at all, but usually find him an interesting writer. This post, however, seems at best badly out of touch with reality. Somin is immediately challenged by one of his readers on the death panels slur and responds:

It is a badly flawed and unfair argument. But I think it’s actually just an extreme version of a genuine point against government control of health care: that government would have to ration care and make decisions denying life-saving treatment to many people — as actually happens in socialized medicine systems.

And as happens in free market medicine systems too – the rationing merely takes a different form as has been frequently pointed out on this blog. But more to the point – would Somin be similarly generous in allowing, say, that 9/11 Truthers were arguing “an extreme version of” the “genuine point” that the Bush administration could have and should have done more to prevent it? I doubt it – perhaps I’m wrong.

I’m not averse to a little populism, and I can sort-of understand how American libertarian intellectuals – who have never had a mass movement to call their own – might get a bit wobbly-kneed at the sight of marching teabaggers. But to suggest that Tea Party rhetoric is somewhat overheated and unfair, but based on a fundamentally sound view of government – wtf? And that’s not even to get into Glenn Beck’s defence of the “white culture” that Obama apparently hates so much …

Update: Somin responds in an update to his original post, to suggest that Beck’s claim that Obama hated ‘white culture’ was “stupid” but was an aberration. Personally, I would choose rather stronger terms than “stupid” to describe this statement, such as e.g. ‘viciously attempting to stir up race hatred’ – perhaps we have different levels of sensitivity to this kind of language. More generally, Somin seems to be sticking to his claim that there is “relatively little advocacy of strange, crackpot ideas or weird conspiracy theories” among rightwing populists, and that the examples that people are coming up with (e.g. Beck’s continued ‘investigations’ into purported concentration camps that the Obama administration is building to house dissidents) are old tropes and are not a ‘major part’ of the right wing reaction to the Obama presidency. This claim is, frankly, completely baffling. When Glenn Beck (whom Somin himself specifically namechecks in his original post as an exemplar of what he is talking about) repeatedly suggests that America is moving towards a totalitarian state, subordinated to a world government run by Maoists and Marxists, where dissidents are likely to be rounded up and sent to concentration camps, it is quite safe to say that “strange crackpot ideas” and “weird conspiracy theories” are close to the heart of the right wing populism that Somin likes. To believe otherwise seems to me either to reflect an absence of actual knowledge of what Glenn Beck regularly says, or to be labouring under the influence of a particularly dangerous form of delusion and denial. Somin also “responds”:https://crookedtimber.org/2009/11/24/im-with-stupid/#comment-296208 in comments here to suggest that the cases of 9/11 Truthers and death panels are not comparable – Harry “responds”:https://crookedtimber.org/2009/11/24/im-with-stupid/#comment-296290 better than I can. Finally, I note in passing that I at least think it good practice for a blogger responding to a criticism on another blog to link back to that blog in his or her response so that his or her readers can evaluate for themselves whether or not that criticism sticks.

So as “Ingrid notes”:https://crookedtimber.org/2009/11/19/whether-or-not-it-is-good-for-europe-it-is-very-bad-for-belgium/, EU member states have chosen Von Rompuy as the new President of the European Council. To use the terms that Euro-politicians have themselves been using (which were nicked, presumably by Brian Cowen, from the title of a political science text on Irish Taoisigh), they have decided to go for a chairman – someone with a low international profile who is good at conciliating warring factions – rather than a chief. I have no doubt that Von Rompuy will do very good work, but he surely will not be a colossus bestriding the world stage, banging the heads of Sarkozy, Merkel and Brown together to force them to agree common European policy and so on. This means, I think, that the interesting stuff will be happening at the level of the foreign policy representative, Baroness Ashton. This too is unlikely to be a high profile post in the short term – but unlike Von Rompuy, Ashton will have a very substantial set of bureaucratic resources to draw upon, with links both to the Council and Commission, as well as her own European External Action Service, which will have an independent budget line. This could add up to something pretty interesting in a few years time. (Update: via Matt Y. “Annie Lowrey”:http://blog.foreignpolicy.com/posts/2009/11/19/eu_spots_close_to_filled makes more or less the same point).

Turning to _real_ European politics, “the”:http://www.irishtimes.com/newspaper/breaking/2009/1120/breaking16.htm “crisis”:http://www.irishtimes.com/newspaper/breaking/2009/1120/breaking66.htm “continues”:http://www.irishtimes.com/sports/soccer/2009/1120/1224259191991.html but looks set to come to no good outcome. FIFA shows no interest in scheduling a rematch, despite Thierry Henry’s statement that a rematch would be the fairest option. Those involved seem determined to do a _reductio ad absurdum_ on Richard Posner’s “arguments about responsibility”:https://crookedtimber.org/2009/11/19/risk-pollution-market-failure-social-justice/. French footballers (and – judging from Trappatoni’s discreet circumlocutions – perhaps Irish footballers too) clearly feel that it is their obligation to push the rules as far as they can go and further – and if the referee doesn’t spot the odd match-and-qualifying-round-determining handball here or there; well, the culprit has no obligation to seek anything but his own advantage, and anyway, it all balances out in the end, doesn’t it? “Incompetent”:http://www.irishtimes.com/sports/soccer/2009/1120/1224259204440.html “regulators”:http://www.guardian.co.uk/football/2009/nov/19/thierry-henry-fifa-rematch-ireland-france shrug their shoulders and refuse to take any responsibility for the mess. And Irish and French politicians deplore the outcome – but declare themselves powerless to do anything about it. Whether this spells out a possible case for world government to prevent such atrocities occurring in the future, I leave to the theorists. However, I don’t think anyone can deny that the end result is manifestly contrary to even the most minimal principles of justice, fairness and efficiency, completely exploding Posner’s arguments in the eyes of all fairminded individuals.

I was kind of surprised to see that the wonderful Tom Russell has a long essay on some new blog called The Rumpus, all about Juarez, El Paso, drug wars, borderlands, corruption, et cetera. I love his music, and I like his writing too, so I’m always pleased to see some more of it. The content, though, the content is shocking.

bq. I turned that page in section B where there was a short item about two El Pasoans slain yesterday in a Juarez bar shooting. Back page stuff. Hidden near the end of the story was the astounding body count: _nearly 2900 people, including more than 160 this month alone, have been killed in Juarez since a war between drug traffickers erupted January 2008_ . John Wesley Hardin wouldn’t stand a chance.

Jesus. You’re probably safer in Kandahar.

Martin Bright in the New StatesmanSpectator

bq. Incidentally, I now think the invasion was indeed an error: carried out at the wrong time, by the wrong coalition for the wrong reasons. But where I do agree with the “decents” is that those who opposed intervention in 2002/3 were arguing for the murderous Baathist regime to stay in power. This should remain on their conscience just as the murderous consequences of the invasion are on the conscience of those who supported the war.

(via comments at “Aaronovitch Watch”:http://aaronovitch.blogspot.com/ .)

I’ve been thinking for the last ten minutes about how to start this post in a polite and reasoned way, and coming up with nothing very much. So, here goes with the bluntness. Charles Rowley’s “article”:http://www.springerlink.com/content/q6pq851k12738423/fulltext.pdf (behind paywall), ‘The curious citation practices of Avner Greif:
Janet Landa comes to grief’ in the new issue of _Public Choice_ is one of the sorriest hack-jobs that I’ve ever had the misfortune to read in an academic journal. The fundamental claim:

The commentary will establish that Avner Grief, by his curious citation practices, has failed to cite seminal papers by Janet Landa who pioneered in an important field of nonmarket decision-making—the economics of trust, which itself is part of the economics of identity—and that, by so doing, he now is inappropriately recognized among mainstream economists as the pioneer in the field of trust networks and informal enforcement of contracts.

is not supported, the insinuations are offensive, and the standards of argument are situated somewhere in that narrow region where the slipshod, the haphazard and the positively eccentric intersect.
[click to continue…]

“Politico”:http://www.politico.com/news/stories/0709/24441.html

For $25,000 to $250,000, The Washington Post has offered lobbyists and association executives off-the-record, non-confrontational access to “those powerful few” — Obama administration officials, members of Congress, and — at first — even the paper’s own reporters and editors.

The astonishing offer was detailed in a flier circulated Wednesday to a health care lobbyist, who provided it to a reporter because the lobbyist said he felt it was a conflict for the paper to charge for access to, as the flier says, its “health care reporting and editorial staff.” …

“Underwriting Opportunity: An evening with the right people can alter the debate,” says the one-page flier. “Underwrite and participate in this intimate and exclusive Washington Post Salon, an off-the-record dinner and discussion at the home of CEO and Publisher Katharine Weymouth. … Bring your organization’s CEO or executive director literally to the table. Interact with key Obama administration and congressional leaders.” …

The flier says: “Spirited? Yes. Confrontational? No. The relaxed setting in the home of Katharine Weymouth assures it. What is guaranteed is a collegial evening, with Obama administration officials, Congress members, business leaders, advocacy leaders and other select minds typically on the guest list of 20 or less. …

“Offered at $25,000 per sponsor, per Salon. Maximum of two sponsors per Salon. Underwriters’ CEO or Executive Director participates in the discussion. Underwriters appreciatively acknowledged in printed invitations and at the dinner. Annual series sponsorship of 11 Salons offered at $250,000 … Hosts and Discussion Leaders … Health-care reporting and editorial staff members of The Washington Post … An exclusive opportunity to participate in the health-care reform debate among the select few who will actually get it done. … A Washington Post Salon … July 21, 2009 6:30 p.m. …

“Washington Post Salons are extensions of The Washington Post brand of journalistic inquiry into the issues, a unique opportunity for stakeholders to hear and be heard,” the flier says. “At the core is a critical topic of our day. Dinner and a volley of ideas unfold in an evening of intelligent, news-driven and off-the-record conversation. … By bringing together those powerful few in business and policy-making who are forwarding, legislating and reporting on the issues, Washington Post Salons give life to the debate. Be at this nexus of business and policy with your underwriting of Washington Post Salons.”

The Washington Post’s news division seems quite upset at the way that the event was described in the promotional materials, and has now said that it won’t be participating. But this kind of event is not unusual in Washington DC, even if the marketing isn’t usually quite as crass and direct.

“Matthew Yglesias”:http://yglesias.thinkprogress.org/archives/2009/06/prestige-cross-pollination.php does Martin Feldstein a serious injustice.

Feldstein’s characterization of the bill isn’t really correct and some of his economic analysis is debatable. But beyond that, the key point on which Feldstein’s argument turns actually has nothing whatsoever to do with economics. … Feldstein’s hypothesis … is clearly a proposition about _international relations_ … Presumably the reason the Post is interested in Feldstein is his expertise in economics. So there’s no reason for them to be running an op-ed whose key contention has nothing to do with economics.

Matt is clearly unaware of Feldstein’s distinguished record as a theorist of international relations (this may not be as distinguished as his research record on “the relationship between Social Security and savings”:http://www.monthlyreview.org/nftae02.htm, but you can only do what you can do). Feldstein is particularly famous (well, famous is one way of putting it), for his suggestion in a 1997 “Foreign Affairs article”:http://www.nber.org/feldstein/fa1197.html that the introduction of the euro might lead to a civil war that would tear Europe apart.

War within Europe itself would be abhorrent but not impossible. The conflicts over economic policies and interference with national sovereignty could reinforce long-standing animosities based on history, nationality, and religion. Germany’s assertion that it needs to be contained in a larger European political entity is itself a warning. Would such a structure contain Germany, or tempt it to exercise hegemonic leadership?

A critical feature of the EU in general and EMU in particular is that there is no legitimate way for a member to withdraw. This is a marriage made in heaven that must last forever. But if countries discover that the shift to a single currency is hurting their economies and that the new political arrangements also are not to their liking, some of them will want to leave. The majority may not look kindly on secession, either out of economic self-interest or a more general concern about the stability of the entire union. The American experience with the secession of the South may contain some lessons about the danger of a treaty or constitution that has no exits.

The carpers and the hurlers on the ditch might complain that Jean-Yves Reb hasn’t reached for his rifle in the intervening ten years, and doesn’t look like he’s going to anytime in the foreseeable future. But that would be to miss the point that Feldstein’s contribution spurred “much”:http://users.ox.ac.uk/~ssfc0041/federalideals.pdf “spirited”:https://segue.middlebury.edu/repository/viewfile/polyphony-repository___repository_id/edu.middlebury.segue.sites_repository/polyphony-repository___asset_id/2089508/polyphony-repository___record_id/2089509/polyphony-repository___file_name/Amy_Verdun.pdf “discussion”:http://mq.dukejournals.org/cgi/reprint/12/4/33.pdf among international relations scholars, and specialists on the European Union (most of it not very complimentary to Professor Feldstein, but again, you can only do what you can do).

Clive Crook “positions himself as a reasonable moderate”:http://www.ft.com/cms/s/0/55522abc-4894-11de-8870-00144feabdc0.html between the extremes of Republican torture-and-detention-porn crazies, and people who, you know, who take civil rights seriously.

The left’s complaints make far more sense than Mr Cheney’s. Mr Obama is adjusting the Bush administration’s policies here and there and seeks to put them on a sounder legal footing. This recalibration is significant and wise, but it is by no means the entirely new approach that he led everybody to expect.

Mr Obama is in the right, in my view, but he owes his supporters an apology for misleading them. He also owes George W. Bush an apology for saying that the last administration’s thinking was an affront to US values, whereas his own policies would be entirely consonant with them. In office he has found that the issue is more complicated. If he was surprised, he should not have been.

The signature intellectual defect of the non-compromisers on each side of this debate is an inability to recognise conflicting ends. The Democratic party’s civil libertarians seem to believe that several medium-sized US cities would be a reasonable price to pay for insisting on ordinary criminal trials for terrorist suspects. There can be no trade-off between freedom and security, because the freedoms they prioritise trump everything. To many on the other side, no trampling on the liberty of ordinary citizens, no degree of cruelty to detainees, no outright illegality is too much to contemplate in the effort to stop terrorists. On this view, security trumps everything.

The “seem to believe” is a weasel-phrase, which would (to use his own dubious phrasing) “seem” to be nicely calculated so as to allow him to make very nasty insinuations and accusations without having to prove them, and the “several medium-sized US cities would be a reasonable price to pay for insisting on ordinary criminal trials for terrorist suspects” bit is a common-or-garden shameful and disgusting slur. If Crook has _any_ substantial evidence that ‘several medium sized cities’ have been put at risk, or are likely to be put at risk, because of civil libertarians’ tiresome insistence on trials and such, I invite him to produce it. And no, “hypothetical ticking bomb scenarios”:https://crookedtimber.org/2004/06/18/by-the-power-of-stipulation-i-have-the-power/ don’t do it, thank you very much.

The underlying claim of this shoddy exercise, such as it is, has three parts. First, that the people who are insisting on civil liberties in the GWOT are wild-eyed and extremist zealots, fundamentally similar in kind to the members of the lock-em-up-and-torture-em-to-death crowd on the other side. Second, that a difficult balance has to be struck between civil liberties for terrorists on the one hand and the need to avoid the destruction of medium-sized American cities on the other. Third, that the only people capable of making the necessary complex choices are sceptical moderates like Clive Crook who realise, as others don’t, that differing ends are incompatible, there are unavoidable trade-offs in life &c&c. In its fully fledged form, this might be described, after the example of Isaiah Berlin, as High Table Liberalism – that anguished and serious engagement with the difficulties of political choice in a world of irreconcilable and competing values which occurs somewhere between the end of the main course and the serving of the port and Stilton. But it reminds me even more of a radio comedy sketch I remember from my youth in Ireland, where a punter representing the Plain People of Ireland and a nun are discussing how best to deal with football hooligans. The punter says that they’re a pack of bastards, and the only solution is to chop off their goolies. The nun says no, we need to think too of the principles of charity and forgiveness, of Christian love etc – and the only solution is to chop off their goolies. Clive Crook is taking the part of the nun here.

Elsevier already has an awesomely wonderful reputation as an academic publisher, but even by their standards, “this”:http://www.the-scientist.com/templates/trackable/display/blog.jsp?type=blog&o_url=blog/display/55671&id=55671 (free reg. required) is pretty extraordinary.

Merck paid an undisclosed sum to Elsevier to produce several volumes of a publication that had the look of a peer-reviewed medical journal, but contained only reprinted or summarized articles–most of which presented data favorable to Merck products–that appeared to act solely as marketing tools with no disclosure of company sponsorship.

…The _Australasian Journal of Bone and Joint Medicine,_ which was published by Exerpta [HF-sic] Medica, a division of scientific publishing juggernaut Elsevier, is not indexed in the MEDLINE database, and has no website (not even a defunct one).

… In testimony provided at the trial last week, which was obtained by The Scientist, George Jelinek, an Australian physician and long-time member of the World Association of Medical Editors, reviewed four issues of the journal that were published from 2003-2004. An “average reader” (presumably a doctor) could easily mistake the publication for a “genuine” peer reviewed medical journal, he said in his testimony. “Only close inspection of the journals, along with knowledge of medical journals and publishing conventions, enabled me to determine that the Journal was not, in fact, a peer reviewed medical journal, but instead a marketing publication for MSD[A].”

He also stated that four of the 21 articles featured in the first issue he reviewed referred to Fosamax. In the second issue, nine of the 29 articles related to Vioxx, and another 12 to Fosamax. All of these articles presented positive conclusions regarding the MSDA drugs. “I can understand why a pharmaceutical company would collect a number of research papers with results favourable to their products and make these available to doctors,” Jelinek said at the trial. “This is straightforward marketing.”

… Lurie, in examining two of the issues for _The Scientist,_ agreed that one particularly strange element of the _Australasian Journal of Bone and Joint Medicine_ is that it contains “review” articles that cite just one or two references. “I’ve never seen anything quite like this,” he said. “Reviews are usually swimming in references.”

Elsevier acknowledged that Merck had sponsored the publication, but did not disclose the amount the drug company paid. In a statement emailed to The Scientist, Elsevier said that the company “does not today consider a compilation of reprinted articles a ‘Journal’.”

“Elsevier acknowledges the concern that the journals in question didn’t have the appropriate disclosures,” the statement continued. “It is worth noting that project in question was produced 6 years ago and disclosure protocols have evolved since 2003. Elsevier’s current disclosure policies meet the rigor and requirements of the current publishing environment.”

“Via Summer Johnson”:http://blog.bioethics.net/2009/05/merck-makes-phony-peerreview-journal/.

I used to put Clive Crook in my ‘disagree with him on mostly everything but basically a decent-sounding and reasonable guy’ box, but not any longer. This “piece”:http://www.ft.com/cms/s/0/4af5dad2-328c-11de-8116-00144feabdc0.html on how (a) we shouldn’t do waterboarding on pragmatic grounds, but (b) it isn’t really torture, is reprehensible.

It is worth noting that the methods in question were adopted from the training US soldiers undergo to resist interrogation. This underlines the fact that using these methods lowers the US to the level of its enemies. But it also suggests that distinctions may be made between waterboarding and, say, breaking on the rack. Unsurprisingly, US soldiers are not subjected to that technique as part of their training. Journalists and YouTube video-makers have undergone waterboarding, the better to pronounce it torture. None that I know of has volunteered to be flayed, or have his fingers crushed. … The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice – and Mr Obama is wavering in the face of their rage. Already, little hope remains of a bipartisan approach to the myriad problems that confront his administration. If the president fails to get a grip on this new controversy, the prospect of any such co-operation will be nil.

First off – if prosecuting torturers makes bipartisanship more difficult, then tough shit for bipartisanship. The prospect for actual bipartisan consensus between people who think that torture is a good thing, and people who think that torture is fundamentally abhorrent is obviously rather limited. Crook’s preferred approach of ‘mistakes were made’ is effective capitulation to the pro-torture side. Obviously, torture _shouldn’t_ be a partisan issue, but that it is tells us an awful lot about the shape that the Republican party is in today. Second, his guff about how no journalists or Youtubers have volunteered to be flayed or have their fingers crushed seems to me to be actively disingenuous. According to the “Bradbury memo”:http://emptywheel.firedoglake.com/2009/04/18/khalid-sheikh-mohammed-was-waterboarded-183-times-in-one-month/, Khalid Sheikh Mohammed was waterboarded _183 times_ in March 2003. If there are any journalists or Youtubers lining up to be waterboarded 183 times in a month, I haven’t heard about it. Which suggests (if I’m wrong, and if Clive Crook really believes that what happened to Mohammed was no great sweat, wasn’t really torture etc) that there is a gap in the torture-porn punditry market that Mr. Crook himself can fill, by himself volunteering to be waterboarded 183 times so as to demonstrate that it isn’t really torture, has no lasting effects &c&c. To fit this in with his doubtlessly busy schedule, I’d be prepared to spot him a few ameliorations – perhaps he could do this over a three month period, not be subjected to stress positions, nasty cramped cells or other forms of abuse. And perhaps he could even live-blog the experience for the _Financial Times_ or the _National Journal_ (or, if he wants to go a bit downmarket, do it for reality TV – I’ve no doubt that there would be an audience).

Update: “Clive Crook responds to critics, including me”:http://clivecrook.theatlantic.com/archives/2009/04/more_on_torture_prosecutions.php.

Let me reprise some of the main points from my column on torture prosecutions:

(a) Possibly, torture can succeed in extracting vital information.
(b) On balance, however, torture does not make the US safer.
(c) In any event, it is shameful and wrong.
(d) Waterboarding is torture in the ordinary meaning of the word.
(e) Notwithstanding (d), the law is not as clear as it should be on whether waterboarding as practised during the Bush administration is torture under the law.
(f) Congress could and should have outlawed waterboarding explicitly already. It should do so now.
(g) Because of (e), and because the issue is so acutely divisive in the US, prosecutions under the existing law may serve neither the cause of justice nor the public interest.

Most of the non-abusive emails I have received about this rightly concentrate on (e). They say that domestic and international law on this is perfectly clear. They point out that the US has prosecuted foreigners and its own citizens for waterboarding in the past. A few have referred me to this much-cited paper by Evan Wallach, which I was familiar with before writing the column and which is well worth reading. The author also had a column in the Washington Post summarising his argument.

I acknowledge that I am not well qualified to judge this issue. I am not a lawyer, but I have wrestled with the law on it enough to know that it is far from simple and a matter of dispute among lawyers. As now seems to be mandatory on this and other issues, positions are stated with false certainty and with unyielding moral absolutism. It is necessary to read everything sceptically.

The earlier cases do not prove that waterboarding as practised during the Bush administration was illegal, only that waterboarding carried out in certain ways and under certain circumstances has been successfully prosecuted. The designers of the policy knew the law and manoeuvred–absurdly and offensively, perhaps, but they would not be the first lawyers to stoop to that–to stay within it. As for whether, regardless of domestic law, the international Convention Against Torture mandates prosecution, you have to understand the distinction between treaties that become the law of the land in and of themselves, and treaties that the US adopts, and in effect modifies, with a law of its own. The Convention Against Torture is of this second type. Arguably, therefore, relevant parts of the CAT are not enforceable in US courts.

Incidentally, there is further disagreement over whether the US government has discretion not to prosecute, even if it takes the view that a law has been broken. Some constitutional lawyers say it does not. The administration’s promise not to prosecute interrogators implies that it thinks either the law was not broken, or else that it does have discretion not to prosecute.

If prosecutions were brought, could one count on getting convictions? Because of the deliberate imprecision of current law, the defence has a case to make, and a jury, reminded of what was at stake in the aftermath of 9/11, might be inclined to listen to it sympathetically. So one at least needs to ask, what would be gained by prosecuting these crimes and seeing the defendants acquitted? Surely this would undermine rather than affirm a US commitment never to use these methods. And I think the same goes for the suggestion being made that culprits up to and including George W. Bush should be prosecuted and if found guilty pardoned. I admit, when I first read that I thought, “Only in America”. We stand on the principle that torture is a crime and will be prosecuted without fear or favour to the fullest extent of the law (with pardons to follow). How’s that for a clear message? But at least the rule of law has been upheld, you might reply. Well, as I have mentioned, the rule of law will also be upheld, according to one school of thought, if the Attorney General exercises his discretion not to prosecute.

As this leader in the FT notes, what matters most here is not to put George W. Bush and his team in jail, or to try them and then pardon them. It is to guard against such measures being used again. That is a political as much as a legal project–it requires the building of a moral consensus, the changing of many American hearts of minds–and in my view it is best advanced not by prosecutions but by the “look forward” approach Obama first said he wanted to follow.

One last thing. I wanted to draw attention to a blogpost attacking my column by Henry Farrell at Crooked Timber. He says: “This piece on how (a) we shouldn’t do waterboarding on pragmatic grounds but (b) it isn’t really torture, is reprehensible.” This remark is abusive, of course, but that is business as usual. What makes it interesting in a professional scholar and writer on a leading blog is its remarkable incompetence–or, perhaps, its total lack of good faith. I ask you to read the column, or review my summary of it above, and ask yourself how any fair-minded intelligent person could distil my position to those two points.

The name Crooked Timber is I imagine homage of a sort to Kant, who coined the phrase, which is worth thinking about–“Out of the crooked timber of humanity, no straight thing was ever made”–and perhaps also to Isaiah Berlin, the great liberal philosopher, who famously referred to it, and whom I count among my intellectual heroes. Berlin’s hallmarks were open-mindedness, tolerance, civility and loathing of absolutism. Professor Farrell, I’d say you’re flattering yourself just a little.

If, as Crook says here, he did not mean to suggest that waterboarding isn’t torture (and I don’t doubt his word), then I clearly owe him an apology. And here it is. I had taken him to be arguing that waterboarding was opprobrious but not torture in the same sense as crushing of fingers or other methods of torture causing lasting bodily harm, along the lines of the administration memos which made more or less that argument. It would seem that all he was saying was that there was a colourable legal argument to this effect. Obviously, I misread him. I still think that his claim that the desire to prosecute torturers is driven by partisans looking for revenge is manifestly wrong, but that is an entirely separate issue from my basic misreading which he (entirely justifiably) took offence at. My bad, and I’m very sorry for it.

Update 2: see “here”:https://crookedtimber.org/2009/04/30/clive-crook-on-torture-a-second-try/ for a lengthier response.

April Fool stories tend to be more ‘heh’ than LOL. (A couple of Internet geek ones I’ve gotten today; one is ‘heh‘ and the other is ‘eh?‘) But just seeing a tagline with April 1st underneath it makes me doubt any post’s veracity, even totally plausible and unfunny ones like “Brian Barry’s Obituary” (which, by the way, I’m surprised doesn’t mention ‘Sociologists, Economists and Democracy’, the only one I’ve read so presumably the most mainstream.)

Perfect example of a spoof that’s too plausible to be all that funny (or is it a spoof…?): today’s from George R.R. Martin saying he has engaged Howard Waldrop as his writing partner on Ice and Fire. It all sounds plausible, especially given the amount of abuse Martin gets from his overly entitled fans for being so late in delivering the latest of the unwieldy Ice and Fire series. (They grudge him watching football, seriously.) But the last bit where Martin says Waldrop will knock out the rest of the novel in a month or two while Martin is “in the hot tube with some babes in bikinis, sipping some Irish Mist and watching my TIVO replay of the Giants victory over the Patriots in the last Super Bowl but one” gives it away. Still, if old George really did want to outsource his sprawling epic, there are probably worse ways to go about it.