Content Strategy, Philosophy, and a Bit More Philosophy

After going nearly a year (yikes!) without really writing much—or at least not much that I published under my own name—suddenly this week, I have two new pieces out.

At WonkComms, I make the case for smarter content that helps Google answer questions rather than just offer up links to pages. Much of that piece was inspired by a fantastic workshop on adaptive content, led by Noz Urbina at Confab last month.

And new this morning: my first-ever piece for The Pastry Box Project. This one is a lot more personal. I talk a bit about my winding path from academia into this whole weird world of content strategy.

On a side note: I still can’t quite believe they actually accepted my piece. Every time I look at the list of contributors, this clip starts playing in the back of my brain.

Oh, and one more note: we launched the redesigned ERG homepage this week, too. Still the same old site under the hood, but: progress. Next stop: a CMS. (I know.)

Terrorism, Acts of War, and Military Trials

As you’re probably already aware, there’s been some disagreement with the Obama administration’s plan to try alleged 9/11 mastermind Khalid Sheikh Mohammed in a New York civilian court. Among the objections is the claim that trying terrorists in civilian court commits one to a “law enforcement” view of terrorism rather than a “war on terrorism” approach. Now as a general rule, I’m rather opposed to the rather overworked and almost always grossly misleading War on an Abstract Noun language. By and large, our WoaANs have effectively been wars on drug users and poor people – or most often, a twofer of poor people who use drugs.

That said, the war metaphor might not be as problematic in the case of international terrorism. Certainly many terrorists invoke war language to describe their actions. So should we take terrorists at their own word, and accord them military trials (which generally entail fewer protections for the defendants than do civilian trials)? Matt Yglesias says no, claiming that if you do so:

you partake of way too much of the terrorists’ narrative about themselves. It’s their conceit, after all, that blowing up a bomb in a train station and killing a few hundred random commuters is an act of war. And war is a socially sanctioned form of activity, generally held to be a legally and morally acceptable framework in which to kill people. What we want to say, however, is that this sporadic commuter-killing isn’t a kind of war, it’s an act of murder. To be sure, not an ordinary murder—a mass murder—but nonetheless murder.

But not so fast, says Norm Geras.

The opposition Matt sets up here between war and crime – between ‘a socially sanctioned form of activity, generally held to be a legally and morally acceptable framework in which to kill people’, on the one hand, and murder or mass murder, on the other – is too sharp. War may (sometimes) be legally and morally acceptable, but that doesn’t mean there is no criminality within war. There is – as defined by the laws of war. One is not therefore bound to choose between treating individuals as participating in a war and treating them as criminals, if that is what they are. Under the assumption of universal jurisdiction, international humanitarian law allows for war criminals and those responsible for crimes against humanity to be prosecuted in the civilian courts of any country. And terrorism is murder even when it is ‘a kind of war’.

Now I’m inclined to agree with Geras to a degree. The line between terrorism and war crimes is not as bright as Yglesias makes it out to be. I am personally inclined toward the view that terrorism is best defined as the deliberate targeting of noncombatants to achieve a political objective. That makes the 9/11 attacks and the Ft. Hood shootings both acts of terrorism, albeit on different scales. But that definition also makes the allied firebombings of Dresden and (at minimum) the atomic bombing of Nagasaki acts of terrorism. The latter two acts are also rightly defined as war crimes and should have been treated as such. (And, yes, I am fully aware that only the losing side is ever actually tried for its war crimes. It doesn’t make such acts any less criminal.)

But not all acts of terrorism are acts of war. I think one would be hard pressed to give any sort of plausible story that portrays Tim McVeigh’s bombing of the federal building in Oklahoma City as an act of war. The same goes for the Unabomber, the DC Sniper and the Ft. Hood shooter. Terrorists, yes. War criminals? Not so much.

KSM and 9/11 is a tougher call. Indeed, I think it’s something of a judgment call. I could probably get on board with either side – or, at the very least, I’d say that it’s a question about which reasonable people can reasonably disagree.

Still, I think that there is a serious risk of inconsistency present for many of those who are now arguing for treating KSM as a war criminal. As Geras rightly points out, international humanitarian law does in fact allow for war criminals to be prosecuted in the courts of any country. That specific international humanitarian law is the Fourth Geneva Convention. Article 146 specifies that signatories “shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” Those “grave breaches” are defined in Article 147 as:

those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

That pretty well describes the 9/11 attacks and KSM, and I think that anyone wanting to try KSM as a war criminal is legally in bounds to do so. But if one does wish to use the Fourth Geneva Convention to define KSM and company as war criminals, one will also probably need to pay attention to the last sentence in Article 146, which reads:

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949.

In plainer English, that means that if you want to try someone as a war criminal, you have to treat him as a prisoner of war. Meaning no “cruel treatment and torture,” and no “outrages upon personal dignity, in particular humiliating and degrading treatment.” Which pretty much rules out waterboarding the dude 183 times.

So here’s the deal. If you think that the Geneva Convention’s prohibitions on torture somehow don’t apply to KSM, then it’s a bit hypocritical to argue now that he’s a war criminal. If you’re going to charge someone with war crimes under international law, then that same law also requires that you treat them as prisoners of war. In other words, a war criminal gets the full set of Geneva Convention protections, not just the ones that happen to best fit your preconceptions (or, perhaps more to the point, not just the ones that best line up with the agenda of your favored political party.)

*Note: Just to be clear, I’m not accusing Geras of inconsistency. He actually supports trying KSM in civilian court and has argued that those who tortured KSM should be prosecuted. I don’t know of anyone specifically arguing both for torturing KSM and for now treating him as a war criminal, though I do recognize that there is one particular political party whose members by-and-large were okay with torturing suspected terrorists at Gitmo and who are now outraged at the decision to try him as a civilian. It’s unclear to me how many members of that subset are interested in attempting to justify that split on any sort of rational grounds and how many of them are simply okay with whatever Their Side does and displeased with whatever The Other Side does.

Necessitudo ad bellum?

It’s starting to sound a lot like 2005 again.

Remember 2005? Iraq was a big, fat mess. American troops were dying at an alarming rate. Iraqi civilians were dying at an alarming-er rate (not that many Americans gave that much thought). The insurgents seemed to be gaining the upper hand. And there was a growing call from left-of-center pundits, bloggers and activists (joined by a small handful of their right-of-center counterparts) that we should get out of Iraq. Eventually, the non-blogging Americans joined in the call, and by the following November, a whole bunch of Republicans were swept from office by Democrats promising to stop the madness in Iraq. (That clearly worked out well.)

Here in late 2009, I’m starting to see a lot of the same things said about Afghanistan that I was seeing about Iraq back in 2005. Plenty of leftofcenter types are starting to put out feelers about withdrawing. Military officials are outlining new strategies for moving forward. And a handful of right-0f-center types are joining the call. And so history repeats itself.

But should it?

Continue reading

Just Following Orders

Today’s Washington Times features an opinion piece by GEN  Michael Hayden, whose most recent two gigs were as head of the CIA and the NSA. Given that background, it’s probably not much of a surprise that his op-ed blasts the Obama administration for its plan to release another cache of documents relating to the CIA’s “enhanced interrogation” practices. (Say what you want about the program, but I loathe the euphemism. Aren’t we adult enough to simply argue over whether certain forms of torture ought to be permitted? It’s a legitimate question, but we shouldn’t paper over its seriousness with comfortable euphemisms. </rant>)

I’m going to leave aside all questions about the legality/morality of the actual practices. If you’re really curious, you can go to Amazon and buy War, Morality and Ethics; the collection includes an essay on torture with which I agree 100 percent.

I want to focus instead on one of Gen. Hayden’s particular arguments:

The second task is to explain to the intelligence work force that the government still has its back. This too is a tough sell, especially when the work force reads in a Newsweek cover story that, in supporting the release of the first set of DOJ memos, the leadership of the Department of Justice calculated that “if the public knew the details, … there would be a groundswell of support for an independent probe,” and that when the decision to release those memos had been made, the DOJ leadership “celebrated quietly, and waited for the national outrage to begin.”

Now, in one of those neato coincidences, I happened to attend an event this morning at which Gen. Hayden and former DHS Secretary Michael Chertoff spoke about private contractors in the intelligence community. (Don’t be too impressed by this; mostly it involved getting up absurdly early, putting on a tie and going to the 13th floor of my own building. Tell people you’re a reporter and they’ll let you into pretty much anything. Especially at 8 a.m. in a city that everyone with any sense leaves in August.) At any rate, several people asked Gen. Hayden to elaborate on his op-ed. Hayden explained that he was worried that investigating rank-and-file CIA operatives who were simply following directives handed down by the president and approved by DOJ and the CIA chief would prevent them from “pushing the line” and encourage “timidity.”

This, to me, is a puzzling response, particularly coming from a retired general. [ed — I was going to put an Air Force joke here, but it seemed too easy.] In the military, “I was just following orders” isn’t a legitimate defense. Indeed, chapter 8 of Army FM 27-10, The Law of Land Warfare, has an entire section (IV if you’re wondering) dealing with “Defenses Not Available” to those soldiers accused of war crimes, the very first paragraph of which reads:

a. The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful.

The rest of the section goes on to say that following orders might be considered mitigating, and that courts martial should take into account the fact that soldiers are expected to obey orders. There’s a lot of leeway. But there is also an expectation that soldiers actually pay attention to whether or not they are being ordered to break the law.

It’s curious, then that Gen. Hayden wants to hold CIA operatives to a lower standard than the one that applies to a 19-year-old fresh from AIT.

Again, this is all separate from asking whether or not any CIA operative ought to go to jail. Even if we apply something like the Law of Land Warfare standard to CIA operatives, there’s a good case to be made that they still ought not go to jail. After all, an opinion from DOJ that something is legal (however shoddy the reasoning) is still prima facie evidence that the act really is legal. Whether we should hold a CIA operative morally accountable for accepting John Yoo’s legal advice is a judgment call (Professor Yoo now teaches at Berkeley’s law school, so the “he’s obviously incompetent” line is going to be a tough sell).

Still, Gen. Hayden’s argument isn’t that we shouldn’t convict CIA operatives of wrongdoing. It’s that we shouldn’t even be investigating them, since doing so may make them less good at their jobs. This is an argument that we ought not even consider the possibility that CIA employees may be individually guilty for following bad orders. It’s hard to see a principled reason why the CIA should be held to lower standards than the Army.

Nation-Building on the Cheap

Spencer Ackerman has a post today laying out the argument for abandoning the war in Afghanistan. According to Ackerman:

It’s perfectly coherent to assert that the U.S. has interests in Country X that are worth pursuing — at acceptable cost. Setting out a test for whether they’re achievable at Cost-Value Y, measured in time, blood and treasure, is rational. So is deciding at the end of the test that the resources necessary to achieve that interest exceed the acceptable cost. And in this case, it’s not that the U.S. fights for just 12-to-18 months. Eighteen months from now is January 2011, which will make the Afghanistan war nearly a decade old, an often overlooked point. No nation has interests that are worth limitless cost short of survival.

That last point is obviously true enough. But I’m struck by the…well, impatience now on display in much of the liberal blogosphere regarding Afghanistan.

Recall that a few months ago, the main criticism of then-President Bush is that he had diverted resources from a just war in Afghanistan to a totally unnecessary (and probably unwinnable) war in Iraq. I’m pretty much on board with that assessment, though I’d add “blatantly unjust” to the description of the Iraq war. But now, a few months and one serious commitment to Afghanistan later, there seems to be a growing desire to cut our losses and get out of Afghanistan.

This strikes me as problematic on a couple of different levels.

First, just from a purely moral perspective, there’s a very real sense in which the mess in Afghanistan is our fault. We armed and trained a bunch of lunatics because they happened to hate the same people we hated at the time. We did not, however, give much thought to the fact that those lunatics hated us only slightly less than they hated the Soviets. Moreover, once the lunatics had run off the Soviets, we pretty much just left them to rot in their totally devastated country. We continued to turn a blind eye when the lunatics helped take over the country and began killing anyone who didn’t pray to the right imaginary being and abusing the half of the population that didn’t pee standing up. In fact, we didn’t pay any attention at all until some of those lunatics helped crash some airplanes into some buildings.

The U.S. (rightly enough) sent troops in with the dual mission of (a) removing the lunatics and (b) stabilizing and rebuilding the country so that the lunatics couldn’t come back. We did a pretty good job of (a). Not so much on (b).

But here’s the thing: nation building takes a lot of time. It takes even more time when the nation in question is mostly rubble, has no real sense of “nationhood” and is populated by lots of people who haven’t yet realized that we had this Enlightenment thingy a few hundred years ago. It’s naive to think that we can simply kill off the lunatics and expect Afghanistan to instantly morph into Sweden.

Look, say what you will about colonialism (or “nation building” if you prefer the modern terminology), but in those few instances where it has (arguably) been successful, it has generally taken a long damn time. Japan needed decades after WWII to transform into a liberal democracy. The Brits were in India for more than a century. NATO troops still patrol Kosovo and Bosnia more than a decade after intervention (and those were already post-Enlightenment civilizations).

We can certainly argue about the wisdom of attempting to impose liberal democracy anywhere. I’ve argued in favor of a limited colonialism in failed states, and it’s pretty hard to see Afghanistan as anything but a failed state. There is, of course, a difference between saying that X is morally permitted and Y ought to do X. We can still argue about whether the U.S. ought to attempt any sort of nation building in Afghanistan. But, to the extent that we think we ought to undertake such an attempt, we should be aware that it’s a costly and extremely long-term endeavor. One that may well be measured in decades.

Proportionality and the Crime of War

Last week, I looked at one (failed) attempt to excuse Israel’s actions in Gaza by redefining proportionality more or less out of existence. But, as I said then, those opposing the war on just war grounds haven’t always gotten things right, either. By way of reminder, here’s the Atlantic’s Andrew Sullivan:

In the history of the West, the laws of war are clear enough. You do not launch a just war if it leads to greater evils than the status quo ante. There must be a reasonable proportion between means and ends.

If you’re a Catholic still wedded to the just war doctrine of Aquinas, then proportionality is indeed a relevant factor. But it’s not really so clear that Aquinas is right to think that proportionality is a jus ad bellum concern.

I, however, am far more drawn to Michael Walzer’s legalist paradigm account of jus ad bellum (Daniel’s complaints notwithstanding). In Just and Unjust Wars, Walzer uses what he terms “the domestic analogy” to make the argument that war is an international version of a crime. Walzer argues that when a state willfully violates the territorial integrity or political sovereignty of another (i.e., goes to war), then that first state has committed the international equivalent of a mugging. It has, in effect, said “Your land (or your resources or what have you) or your life.”  The crime of war, in other words, is aggression.

But this account has an interesting feature. If aggression is a violation of the rights of a state (and, by extension, of its citizens), then there is, as Walzer says, “a presumption in favor of military resistance once aggression has begun.” That’s because resistance to aggression is an international act of law enforcement. If aggression is a crime, then it is always permissible (and perhaps even obligatory) to punish that crime. Military resistance, whether in defense of oneself or on another’s behalf, is presumed always to be a morally justified response to aggression.

On this view, proportionality isn’t relevant to jus ad bellum considerations. The justice of a war turns entirely upon the notion of aggression; the aggressor is morally in the wrong, and the victim of aggression is always justified in fighting in self-defense.

But of course that’s horribly oversimplified. Because, you see, proportionality does matter. It just doesn’t matter in the way that Sullivan thinks it does. Rather, proportionality is relevent to the way in which we fight a war. If the local bully punches me in the nose, I’m justified in hitting back. And if we change the bully into a thug who is trying to do me serious bodily harm, I might even be justified in using lethal force to stop him. I am not, however, justified in beating up the bully’s sister as a way of making him stop. Nor can I blow up the thug’s house or shoot up his neighborhood. My response has to be (more or less) proportional to his. And it must be limited (to the extent possible) to attacking only the bully or the thug. I can’t indiscriminately target bystanders.

The same holds true for war. I might be justified in resisting aggression, but that justification doesn’t give me carte blanche to wantonly destroy my enemy’s family or lay waste to his land. And that’s where the concern about Israel’s actions in Gaza come in. While it might have worked for the Israelites, in 2009 nations can’t just go around slaughtering women, children, and sheep; stealing all the gold; or burning cities to the ground. To do so is a war crime, a violation of jus in bello.

But that, of course, brings us to an interesting question. What happens if the nature of a particular war makes it impossible to fight a just war in a just manner? Or, to ask the question another way, does a nation’s right to respond to aggression with military force go away if the only military options all involve huge numbers of civilian casualties? It’s a good question. And one to take up in my next post.

Proportionality and Fallacies

Israel’s war in Gaza has once again proved what all just war theory scholars know: people only pay attention to just war theory after a war has begun. Still, recent discussions about the justice of Israel’s war are useful, even if belated.

Much of the conversation has centered on the question of proportionality. Andrew Sullivan, for example, writes that

You do not launch a just war if it leads to greater evils than the status quo ante. There must be reasonable proportion between means and ends.

Sullivan goes on to argue that, contra the requirements of the Catholic Catechism, Israel’s war creates more evil than anyone can reasonably expect it to alleviate. The American Prospect’s (decidedly non-Catholic and non-conservative) Ezra Klein echoes Sullivan’s concern, writing

There is nothing proportionate in this [Israel’s] response. No way to fit it into a larger strategy that leads towards eventual peace. No way to fool ourselves into believing that it will reduce bloodshed and stop terrorist attacks.

Commentary’s Noah Pollak rejects this assessment, arguing that Sullivan relies upon an obsolete understanding of proportionality. Pollak, following Michael J. Totten, suggests that the U.S. military’s Law of Armed Conflict provides a better definition of proportionality, namely that it “prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective.” Given that Hamas is still firing rockets into Israel, Pollak says, clearly Israel has not used more force than is needed to accomplish the military objective, and hence the war passes the proportionality test.

For starters, we should note that Pollak’s argument is fatally flawed. The logic of the proportionality rule runs as follows:

If a nation uses force that exceeds that needed to accomplish its military objective, then that nation has failed to act in a way that is proportional.

Pollak denies the first half of the conditional in order to conclude that Israel falls within the bounds of proportionality. But, of course, that move commits the logical fallacy of denying the antecedent. Pollak’s argument requires that we read the proportionality rule as saying

A nation fails to act in a way that is proportional if and only if it uses force that exceeds that needed to accomplish its military objective.

It’s far from clear, however, that proportionality can be limited in this way. It’s not that hard to see why this rereading fails. Suppose, for example, that Israel set as its military objective the elimination of all terrorist acts emanating from Gaza. Accomplishing that goal might well require killing not just every current terrorist, but also every potential terrorist. In other words, wiping out every single resident of Gaza might well be the only way of accomplishing a particular military objective. The problem with such a reading, then, is that it makes our definition of proportionality contingent upon a nation’s military objective. But what are we to say when we want to describe a military objective itself as not proportional?

All this is not to say that the Sullivan/Klein line fares much better. Indeed, the entire discussion of proportionality is a red herring, one that confuses jus ad bellum with jus in bello. But that’s a subject for another post next week.