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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Phony Tough Talk Covers Phony Election
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Monday, November 02, 2009
Phony Tough Talk Covers Phony Election
Brian Tamanaha
Karzai has officially been declared the President of Afghanistan, despite the rampant fraud that marked the election. Karzai is the winner because his challenger dropped out, eliminating the need for a run-off.
Comments:
Our Rand-y (but blanks shooting) Backpacker seems to believe that the Afghans will greet additional troops per Gen. McChrystal's ball as libertarians.
I suspect that Karzai's "agreement" for a run-off election was secretly conditioned on the subsequent withdrawal of his opponent in an effort to provide legitimacy to Karzai's "victory," indeed a mandate from the electorate. Never trust a man who wears a cape (or a backpack). Yes, this was a three-way kabuki.
Professor T:
I understand [and feel] your despair. Nonetheless, I wonder what you think our President should do. In this Chinese mousetrap, what can we realistically expect him to do at this moment? My hope is that, as Mourad suggests, we can help to bring a respectable government into being. But my fear is that we can do nothing.
We're not really there to bring freedom to Afghanistan, much as that would be nice and much as it seemed we might be doing since the political process there was more successful than Iraq's for a time. We were there to exact revenge for 9/11 and continue to be there because we'd get creamed by world opinion if we broke it and didn't fix it. Democracy isn't the goal. Stability is the real goal.
CTS,
We could start with cutting out the b.s. Is candor out of the question? Could Obama not declare to the American people that the Karzai government is illegitimate but that we have no better option? That would be a start. This would be refreshing to the Afghan people (who are not fooled anyway) as well as the American people. And if we cannot be honest, what does that say about the legitimacy or wisdom of our actions? Brian
"Bringing freedom and democracy"
Yeah, that's why we fought in Afghanistan post-9/11. Just doing our part in promoting freedom, democracy, and the American way. The professor's plea for honesty, to paraphrase The Princess Bride, we are all adults here, is appreciated. First, we might admit that freedom and democracy alone is not why we are there. I didn't know at the time that was why we went there in the first place. I thought it had something to do with Bin Laden and all. As with the ever changing reason latched on for invading Iraq, we had some mission creep here. As to improved governance, especially on the economic front, why don't we serve as a guide?
Patrick Cockburn writing in the Independent does not mince his words: Victory (for a crooked, corrupt and discredited government). The Telegraph writes: Afghanistan: Business as usual, which means tough times lie ahead
I agree with Professor Tamanaha that the Administration's words could have been better chosen. For example, did the Press Secretary have to use the word "legitmate"? Surely it would have been possible to be a little more lukewarm? Still, the flawed Afghan electoral process was not created by this Administration and it is possible to argue that neither the USA nor the UK have electoral processes which are immune from problems. One must work with what one has and it is clear that the sub-text is that Kharzai is "on probation". But Professor Tamanaha's last paragraph is probably written with more than a soupçon of irony. The Enduring Freedom™ invasion was entitled by an expert in "newspeak" and is proabably best classified as an unlawful punitive expedition. What the Bush Administration had in mind was Freedom™ to shoot, bomb detain and torture any Afghan suspected of harbouring Al-Quaida adherents or sympathisers. By contrast, the NATO/ISAF mandate is based on findings by the UNSC that that post invasion situation poses a threat to international peace and security - which it undoubtedly does - and its tasks are much more limited:- (1) conducting stability and security operations in coordination with the Afghan National Security Forces (ANSF); (2) assisting in the development of Afghan National Security Forces (ANSF) and structures, including training the new Afghan National Army (ANA) and National Police (ANP); (3) identifying reconstruction needs, such as the rehabilitation of schools and medical facilities, restoring water supplies and providing support for other civil-military projects; (4) supporting the Afghan government to Disarm Illegally Armed Groups (DIAG); (5) providing support to the Afghan government and internationally-sanctioned counter-narcotics efforts through intelligence-sharing and the conduct of an efficient public information campaign, as well as support to the Afghan National Army Forces conducting counter-narcotics operations; (6) supporting humanitarian assistance operations. None of those missions are predicated on a democratic government in Kabul - but it is naturally hoped that in the fullness of time the conditions will be created in which the Afghan people can eventually develop into a peaceful democracy with the kind of democratic institutions they consider appropriate. [cont]
Professor,
Your prescription in response to CTS belies any pretense of earnestness in your analysis. From a declaration that Karzai is illegitimate, only preparations for withdrawal are a tenable next step to present ot Americans, something you plainly are aware of and a step you explicitly favor. It's a fair and coherent position, but then why pretned that we could move forward with an attempt to stabilize the country with a military-political intervention while stating outright that theleadership is illegitimate. The statement itself would undermine the effort. No one expects perfect candor from leaders in regards to war or much else for that matter; I take you for no more a fool than any of your fellow Americans. If Obama is to move ahead with any course other than disengagement, then a line of hopeful optimism from U.S. leaders about prospects for Afghan governance is obligatory. If such cannot be accepted because it doesn't have basis in truth, then withdrawal is the only honest course to suggest. That said, I agree that Gibbs overstated the case by saying outright that Karzai is legitimate: language about a process leading to greater legitimacy would have been more appropriate. Likewise, Obama's description of the election as "messy" was certainly too weak and an insult to Afghans. A statement that questions about the election were serious and legitimate but that they must be put aside now in order to recognize Karzai would have been the right note. But had he said outright that Karzai is illegitimate full-stop, the president might as well have gone ahead and announced that he had ordered Petraeus to begin plans for an orderly redeployment from the country (which I am not arguing would necessarily have been a bad thing.)
If the corruption of the Afghan government proves a continuing hindrance to the elimination of the threat to international peace and security, the UN could sanction steps against the government itself, even replacing it with a UN Administration.
It looks as though Kharzai may have got that message at least in principle if this BBC report of his most recent press conference is correct: Karzai vows to battle corruption - but fine words are not enough. The Taliban is not a single entity but a conflation of different elements of Afghan society. It will take time and effort to re-integrate them, so success is not "almost in sight". It may take 25-30 years or more. In terms of the time it took the UK to emerge from a feudal society, that is warp speed. But look at Kosovo where matters are still far from satisfactory - but which is already one more European country where aid of the USA will be remembered with gratitude - this time by Kosovars who are mainly Muslims Kosovo unveils Clinton's statue. I haven't yet heard of any nation erecting an effigy of George W. Bush (at least outside of a shooting gallery). I recall there was a California proposition to name a sewage plant after the former President, but I don't think the proposal was approved by the voters.
I'm not particularly surprised; Demanding that Zelaya be returned to office, having little to say about Chavez becoming the typical South American President for Life... This administration seems to have an affinity for tyrants. It will be interesting to watch as his own term limit approaches.
Mourad said:
"The Taliban is not a single entity but a conflation of different elements of Afghan society. It will take time and effort to re-integrate them, so success is not 'almost in sight'. It may take 25-30 years or more. "In terms of the time it took the UK to emerge from a feudal society, that is warp speed." We might end up with a "feuding" 25-30 years that could speedily "warp" the economy, including politically, of America plus the rest of the industrialized world. This is not the equivalent of a Marshall Plan creating markets for America, unless the products are poppies. By the Bybee (judge not, lest ye be judged, and I'm still judging), naming the sewage plant in CA after Bush would have been redundant.
Shag:-
There are already ways in which Afghanistan warps our economies. Bear in mind please these UN provided figures:- At present Afghanistan produces 92% of the world's opium with about 3,500 tonnes leaving the country every year. That feeds into an unlawful narcotics trade worth US$65 billion a year with some 15 million addicts and leads to 100,000 fatalities a year. The value of the narcotics at least doubles with every border crossed so that a gram of heroin worth US$3 in Kabul fetches up to US$100 on the streets of London. In NATO member states more than 10,000 people die from Afghan heroin each year - a figure five times higher than the total number of NATO troops killed in Afghanistan since 2001. In Russia, the country worst-affected by the drug, the annual 30,000 death toll is higher than the total Soviet death toll during the USSR's Afghanistan campaign of 1979-1989. The UN estimates that about US$160m of drug money per year is now available to support terrorist activities. We have very good entirely self-interested reasons to wish to interdict this trade at source since we only manage to interdict some 5% at destination.
If the US stays in Afghanistan, then perhaps Monsanto can come up with something like Vietnam's Agent Orange to address the source of the drugs from Afghanistan. Has the GWOT merged with the War on Drugs? At some point, the War on Energy Sources has to complete the trifecta. (Is it ironic that poppies honor Memorial Day here in the US?)
BTB*, isn't the Military Industrial Complex implicit in this trifecta? *By the Bybee
Brett says:
"This administration seems to have an affinity for tyrants." This administration has been in place less than a year and it inherited Karzai from Bush/Cheney. Let's compare this administration's affinity for tyrants with perior administrations, going back to WW II.
Shag:-
As I expect you know only too well, the inspiration for the use of poppies as the flower to commemorate the fallen came from the poem by Lt Colonel Professor John McCrae a Canadian who commanded a Field Hospital at the 2nd battle of Ypres in 1915. The poem was written to commemorate his former student and friend Lt Alexis Helmer who was killed at Ypres and was first published in Punch in 1915. The Colonel died in service in 1918 and is buried at the Wimereux Commonweath War Graves Cemetery not far from Calais The idea of using the poppy as a memorial was that of a lady from Georgia Moina Belle Michael. The Poppy Appeal of the Royal British Legion is one of the principal charities raising funds for service widows and orphans and for disabled ex service men using poppies made by disabled ex-servicemen. See the website Royal British Legion - History of the Poppy Appeal where you will also find Colonel McRae's poem.
unlawful punitive expedition
the word "reprisal" does come to mind and its tasks are much more limited Then, we have a six point plan that has the added difficulty of requiring it actually working on some level long term. Punitive expeditions can be a lot easier. Well, off to vote.
Mourad,
Yes, indeed, I remember from grade school "In Flanders Field ...." Back then, 9 or 10 years of age, I new nothing of irony. (Some may say I have not learned much of it since.) Back then perhaps few knew of destructive derivatives of the poppy used to solicit donations to benefit soldiers slain in battle and their families. If the US makes a greater soldier investment in Afghanistan as a result of Gen. McChrystal's ball, perhaps years from now American troops slain in Afghanistan may be honored and their families benefitted with a continuation of the poppy drives of the past. Might this be a tad ironic? Maybe a new poem may be appropriate. Is there an Afghan name to substitute for "Flanders Field"? And the new "Global War On Terror, Drugs and Energy" (GWOTD&E) may become the 21st Century's 100-year war.
Brian Tamanaha said...
Is candor out of the question? Could Obama not declare to the American people that the Karzai government is illegitimate but that we have no better option? Why is the Karzai government "illegitimate?" Because of the electoral fraud? Even with the fraud eliminated, Karzai had a plurality of the vote. Because of the corruption? Corruption was rampant in our Republic until well into the 20th Century and is still alive and well. Start with the enormous corruption created by the Bush TARP slush fund and the Obama Porkuus slush fund. Does this make our Republic illegitimate? Indeed, this corruption is often celebrated in our country. The NYT this morning was celebrating Al Gore's investment in a green company that just so happened to receive an Obama stimulus grant which will provide Al Gore with a profit of may times his investment. Should Karzai call the Obama Administration illegitimate? The bottom line is that the Taliban is attempting to conquer Afghanistan to reestablish its totalitarian theocracy. The issue of corruption bothers the West more than its does Afghanistan and the Taliban uses the issue as propaganda to influence the West into leaving. Why precisely would Obama want to feed Taliban propaganda by proclaiming the elected allied government in Kabul to be "illegitimate?"
Should Karzai call the Obama Administration illegitimate?
# posted by Bart DePalma : 10:25 AM He is certainly welcome to do so. He could even threaten to bring home the Afghan army that is propping up our government. Wait a second... It's been more than 8 years since 9/11. Why are we still there?
There are good reasons for the kabuki in international relations. Ships of state don't turn slowly, so it's pretty important to be looking several moves ahead. Had Obama been candid about Karzai's corruption, it would have ruined the relationship in a snap, narrowing our future options for very little upside. Even if we plan on disengaging soon, short of deposing him we have to maintain stable relations with Karzai, and it is irresponsible not to participate in the farce.
Why else do you think smart diplomats have been doing this kind of thing for centuries?
Shag:-
The Flanders Poppy is the species Papaver rhoeas. 2. The opium poppy is the species Papaver somniferum which is widely grown in domestic gardens throughout the world since most varieties have a very low opium content. The commercial growing of opium poppies for medicinal purposes takes place mainly in India and Turkey. The USA imports 80% of its medicinal opiate raw materials from thoese two countries. Incidentally - opium poppies are grown in England for medicinal purposes - the products being manufactured by Macfarlan Smith Ltd which is a world supplier of medicinal diamorphine - see this Monopolies and Mergers Commission Report A European NGO - the Senlis Council - has proposed the licensing of poppy growing for medicinal purposes in Afghanistan but the proposal was not favorably received by the UN. One would be pretty pushed to give appropriate pain relief to many of our wounded in Afghanistan and elsewhere without the products derived from Papaver somniferum which include morphine, diamorphine and codeine! And yes, the Royal British Legion's (plastic) poppies are available just about everywhere at the moment as we prepare for Remembrance Sunday this coming weekend. Sorry, but any irony is rather lost on me.
Mourad,
If the poppy fields in Afghanistan continue to provide illegal drugs to Russia and elsewhere, and American troops spending 25-30 years in Afghanistan are unable to stop this flow, then perhaps the symbolism of the poppy, whether of different varieties and wherever grown, may demonstrate the futility of efforts in Afghanistan, with perhaps there being a tad of irony to the sacrifices made by the fallen soldiers, others and their families. There is of course nothing wrong with the medicinal use of the poppy, or of the coca leaf or marijuana. But the illegal drug trade creates tremendous problems worldwide that impact economies and lives. So controls are necessary. Now just what is the US and NATO strategy about the Afghan poppy harvest? Even if it is "Agent-Oranged" in Afghanistan, as you indicate it can readily crop up later. I question the strategy, the motives. BTB*, I recently read a paper on the US pharma efforts prior and after WW II to challenge Germany and Japan's pharma industries by taking steps in South America with coca leaf supplies, successfully cutting off especially Germany. (Coca-Cola is nice.) But look at what has proliferated since in Colombia. And there is a major problem between the US and Mexico today with the illegal drug trade and guns. As to Afghanistan, Asian nation states should be actively engaged to address these issues. Is this a War on Drugs, Global War on Terror, War on Energy, or a combination? Another 100 years war, this time actually 100 years? *By the Bybee
I am curious if anyone has ever taken the effort to identify and quantify the Afghan corruption? I wonder if it is any worse than Amercan corruption reported just today here and here?
I wonder if it is any worse than Amercan corruption reported just today here and here?
# posted by Bart DePalma : 12:35 PM Baghdad, you're probably the only person on the planet who is wondering of the corruption in Afghanistan is worse than in the US.
"Why is the Karzai government "illegitimate?"
Because of the electoral fraud? Even with the fraud eliminated, Karzai had a plurality of the vote." In a country where you have to win by a majority, that's enough.
I am curious if anyone has ever taken the effort to identify and quantify the Afghan corruption? I wonder if it is any worse than Amercan corruption...
The odd thing about this statement is that it comes from a very outspoken source who appears very confident of his authority to speak on matters of international affairs. Speaking for myself, I'm no authority on Afghanistan but I've paid enough attention to the situation to have a pretty good idea that corruption in Afghanistan is a major factor behind the resurgence of the Taliban.
Let's modify our Backpacker's curiosity just a tad:
"I am curious if anyone has ever taken the effort to identify and quantify the Afghan corruption? I wonder if it is any worse than Amercan corruption reported during the period 1/20/01 - 1/20/09?" A book title for that time period could be: "THE AUDACITY OF DOPE"
I do not think Professor T's response to me was insincere, but I do think it was unrealistic. I agree that the PS’s comment could have been more modest. On the other hand, would a more modest statement for the White House have had the best effect?
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As to comparisons between corruption in Afghanistan and the U.S. , I believe the word on the street is that the Afghanis expect to encounter corruption most of the time, and they are not at all happy about it. Here in the U.S., the places in which one might have the same expectation are, happily, few. (My impressions about the views of Afghanis are based mostly on BBC reports and the Afghan News Network).
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