Thursday, September 05, 2013

Proportional punishment

Sandy Levinson

OK, say you're on a jury in Texas, where the jury sets the punishment.  You've found Assad liable for the use of chemical weapons, either because you believe he actually ordered it or because, a commander-in-chief/dictator, he's responsible on a respondeat superior basis.  He richly deserves punishment.  You'd like to give him capital punishment, but then you're told that there's no practical way of doing that.  We'd have to burn down the house in order to roast the pig, i.e., use such heavy weaponry to destroy where (we think) he's currently hiding out that it would kill too many innocent people along with the culpable Assad.  But you're told that the wonder of the law (or something) is that you don't have to limit yourself to punishing the perpetrator(s).  Indeed, since he's the head of a large corporation called the Syrian government, you can inflict punishment on anyone who works for the Firm.  But the problem remains:  What is the appropriate level of punishment?   Imagine that we're talking about interstate shippers who are regularly arrested for speeding.  I'm sure they view the speeding tickets as a cost of doing business.  On the other hand, we might establish a policy of confiscating their trucks, as is possible if, say, they're discovered to be shipping illegal drugs.  That  would get their attention, as would bombing some of their warehouses.  But how many?  And with what risk of "collateral damage"?  (Maybe the warehouses are located near playgrounds, and even "smart bombs" sometimes make dumb errors.) 

OK, this may be a silly exercise, but the point is that the Obama Administration has conveyed no sense of what they/it (since the Administration is also quite obviously a they and not a simple it) believe would be proportional.  We hear a lot of bloviation that the point of an American response is to deter Assad from every using chemical weapons again (which assumes what has not been truly demonstrated, that he actually made the decision and is such a omnipotent dictator that he can in fact assure that no rogue commander, for whatever reason, will use such weapons).  But even conceding the debatable assumptions, what is the proper level of response.  After all, it has to be more severe than the equivalent of the speeding ticket, which would quickly become the Holmesian price that a bad man would be willing to pay.  So are we to assume that he'd take notice if, say, we managed to kill 500 of his finest officers (assuming we know who they are and that, again, there wouldn't be serious collateral damage)?  But if he's the frothing beast he's being portrayed as, this, too, might be accepted as a cost of doing business.  Or perhaps he'd fall into the Gotterdamerung moment, where he'd decide that he's doomed regardless, so why shouldn't he take lots of people with him, including, say, as many inhabitants of Jerusalem or Tel Aviv as possible. 

Perhaps there are good answers to all of these concerns, but I truly fail to believe that anyone could seriously believe that Secretary of State Kerry has come close to supplying them.  All he has said is that we have to deter Assad from doing it again, as if he knows exactly what the price point is that would change his (presumptive) behavior in the lack of an American attack/.  Osama bin Laden is said to have believed that the destruction of the Twin Towers would encourage the US to withdraw from Saudi Arabia.  It obviously wasn't effective.  Did he guess wrong on our price, or is the point that we would simply not capitulate? 

I would be very interested to know Colin Powell's views on Syria.  I would also like to know how much money would have to be allocated to a Syrian adventure.  Or has this been turned into a matter of honor so that cost is irrelevant?  But does anyone seriously believe that Obama's new-found Republican friends will vote to raise taxes to pay for this adventure, or will it be taken out of, pick one, food stamps, the NIH budget, or relief for refugees in Turkey and Jordan? 

And, finally, perhaps the President will explain why the enablers of Saddam Hussein, such as Donald Rumsfeld, who looked the other way at his far more systematic use of chemical warfare, escape even s scintilla of rhetorical shame.  If he's going to say "never again," then note that the US has played its own part in leading dictators to think they can get away with murder so long as they are viewed as useful to American interests.

Perhaps I'm being hysterical, but please explain why.


Gotterdamerung, which sounds like something Scalia would say in a dissent, "refers to a prophesied war among various beings and gods that ultimately results in the burning, immersion in water, and renewal of the world." [Wikipedia]

Prof. Levinson raises various important questions here. What is the appropriate response for usage of chemical weapons? Taking into consideration of the various factors of the case.

Me, I thought the UN -- established with a great assist from the US -- had some role here. A regional group like the NATO might be a stand-in of sorts (see the Balkans), if imperfect at best. Maybe, the Arab League? What does Samantha Powers think?

As to the last point, Rummy et. al. has not escape shame-free. Much has been said about the hypocrisy over Hussein, though turning against dictators has a history here (see, e.g., Stalin).

We aren't quite to a point where claiming purity is possible. There will continue to be imperfect enforcers in the world, including anyone who sets some limits on chemical weapons. Is the UN itself worth much on that front, given some of its membership?

But, SL's cynicism does suggest the need for a clear case. The U.S. had some call for the high ground in WWII all the same, even with its checked history.

"Osama bin Laden is said to have believed that the destruction of the Twin Towers would encourage the US to withdraw from Saudi Arabia. It obviously wasn't effective."

To the contrary, George W. Bush capitulated to bin Laden's demand that American military bases in Saudi Arabia be closed.

Why John Kerry did not call him out on this weenie behavior during the 2004 presidential campaign, I shall never understand.

Sandy’s rant, while a little hysterical, illustrates why it is so foolish to approach the Syrian issue in the way that we are. During the Cold War, it was frequently said that we could not be the “policeman of the world.” But today we are trying to be the policeman, or maybe the Attorney General, of the world in a far more literal way than ever before.
Suppose Assad were to send Obama a letter saying that after a thorough investigation, he had determined that rogue elements of the regime were in fact responsible for the chemical attack, and that he had ordered the offending officers punished in the normal way (shot without trial). And for good measure, he might add that this makes Syria a far more respectable member of the international community than the US, which has failed to hold anyone accountable for its many violations of international law.
(Note here that Assad is unlikely to view the waterboarding of a few AQ members as a good example of such violations. Fortunately, he has plenty of better examples, from his perspective. Jack Balkin just declared that attacking Syria without UN authorization would itself be a violation of international law. And plenty of people would say that drone strikes violate international law. Or NSA spying. Or, for that matter, tolerating insults to the Prophet. It scarcely matters whether these things “actually” violate international law, whatever that means. All that matters is that most of the world’s population will be more than happy to accept that the US is an egregious violater of international laws and norms).
By the logic of Obama’s position, wouldn’t he be obliged to call off any strike on Syria once such a letter was received? Wouldn’t he have to accept Assad’s representations unless he could prove that Assad personally authorized the chemical attack? Frankly, even if he had such proof, it would seem kind of silly to bomb Syria until Assad admits personal responsibility.
Note that Obama’s focus isn’t on securing the chemical weapons so they can’t be used in the future. This might make some sense from the point of view of protecting US interests. Instead, it is on punishing a specific instance of use of chemical weapons in the hopes that this will deter future use. But Assad must know that any use of chemical weapons risks putting his patron Russia in an embarrassing situation- this is more likely a limiting factor than the specter of Obama returning to Congress for another authorization of force.
US interests in Syria can only be advanced if there is an outside party will to restore order on the ground. There is only one reasonable candidate for this job. If they are unwilling to do it, US military action is probably futile and could lead to catastrophe.


I recall that Saddam was asked why he did not make the case before the invasion of Iraq that Iraq did not have WMDs (which term I understand includes chemical weapons) and permit inspections, his response was to the effect that his enemy neighbors would take such an admission as Saddam being weak and thus vulnerable. While there seems to be clear evidence that Syria has had extensive stocks of chemical weapons, perhaps Assad learned a lesson from Saddam by actually using chemical weapons to impress Syria's enemy neighbors of his powers.

Chemical weapons do matter, especially at the international level. If the international community, or a significant portion thereof, is unwilling to act, can America act virtually alone as the world policeman? I think not.

Many nations have stockpiles of WMDs (including chemical weapons. Why, if not to serve as deterrence or actually use them if needed for self defense? Some nations without WMDs may feel compelled to develop/acquire such stockpiles for perhaps similar reasons. The doctrine of Mutually Assured Destruction is indeed MAD, but that is the state of our international world.

If Saddam indeed had WMDs, he probably would have used them when push came to shove (especially with his experience agains Iran years earlier).

Yes, chemical weapons as much as other WMDs do matter: IT'S A MAD, MAD, MAD, MAD WORLD. And I'm not assured.

mls says:

"Note that Obama’s focus isn’t on securing the chemical weapons so they can’t be used in the future. This might make some sense from the point of view of protecting US interests."

While referencing "US interests" he does not indicate that such are "national interests" that could justify taking such steps which would seem to require military force with perhaps boots on the ground. And consider other sovereign nations that are potential threats with stockpiles of chemical weapons and other WMDs. It would be difficult even with the full force of the UN to take such steps.

I'm not suggesting that I disagree with the thrust of mls' comment. But there must be more debate on whether US national interests are involved in determining what if any military action might be appropriate. There are a lot of doubts even with a clear case that Syria, Assad, they, it used chemical weapons.

mls speaks of 'a far more literal way than ever before' and ridicules us being the AG of the world.

I don't understand. Wasn't chemical weapons a concern in Iraq over the years? I don't think that was the only example either.

As to the "rogue" element bit, over the years there were various international actions about violations. If the problem was "rogue elements" and the country in question seriously addressed it, yes, it would change the proper cause against the country.

Per SL, note the Senate AUMF says:

"there is clear and compelling evidence direct involvement of Assad regime forces and senior officials in the planning, execution, and after - action attempts to cover - up the August 21 attack, and hide or destroy evidence of such attack"

Also, actually, it also says this:

Whereas the Arab League has declared with regards to the August 21 incident to hold the
“Syrian regime responsible for this heinous crime"

It also is not just concerned about one incident, but its place in our overall security. As to "securing the chemical weapons," Kerry, e.g., spoke about Syria rejecting inspections. It is unclear to me that the overall security of chemical weapons, including inspections and upholding standards there is not the long term concern here.

But, this "insult prophet" business doesn't suggest mls is being fully serious here. Syria not being Bin Laden, so "insulting the prophet" not likely to be seriously put out there as a violation of international law.

I still don't see force here as useful though the 'catastrophe' aspect of it is unclear to me either.


Shag- Syria is not the only country with chemical weapons, but it reportedly has the largest stockpile, and the risk of those weapons being used, captured by or given to Hezbollah or AQ, or simply being dispersed accidentally during the fighting make them way more dangerous than anywhere else.

My understanding is that we have a plan to go into Syria with something like 75,000 troops to secure those weapons if it looks like the regime’s hold on them is starting to slip. Whether we actually would or should execute this plan if push comes to shove, I don’t know, but I assume that we would all agree that avoiding that eventuality would be a worthwhile objective?

So my point is that our current approach does nothing to advance that objective, and in fact makes it more likely that the chemical weapons will become less secure. Assad may start moving his stockpiles, either to protect them from our attack or to give control of them over to allies like Hezbollah who could use them in a retaliatory fashion. Or our bombing campaign might assist the rebels in taking control of some of the weapons.

If Obama were seeking to force Syria to give up its chemical weapons, or at least to allow them to be secured by outside forces, that would at least make sense as an objective. Instead he is just trying to achieve an objective, “deterring“ Assad from future use, which cannot be measured and wouldn’t be that valuable even if we could achieve it.

That’s what I mean.


For the record, I fine "mls" thoroughly persuasive in his analysis, including, perhaps, his description of my "rant" as (only a) "little hysterical." Seriously, I think he sets out the issues extraordinarily well. It would be an extraordinarily clever ju-jitsu move on Assad's part to announce that in fact he has located the culprits (whose confessions would be on video) and that they have indeed been summarily executed.

The heart of the disagreement between Joe and myself is the weight placed on the term "Assad regime." (That's the "they.") If Assad is personally responsible, then he should be assassinated or sent to the ICC. If his "regime" is responsible, then why aren't we committed to "regime change" (which, of course, is the official US policy, though we're not willing to do anything effective to bring that about, because of a prudent fear of the "regime" that would replace it)?


why aren't we committed to "regime change" (which, of course, is the official US policy, though we're not willing to do anything effective to bring that about, because of a prudent fear of the "regime" that would replace it)?

A question with an answer nested in it. It is like doing something small that might lead to bigger things in the long run to help a family member & having someone say "why don't we just kick him out of the house!" Because life isn't always that easy, is it?

Anyway, The Senate AUMF (which received Obama approval) accepts that "Assad regime forces and senior officials," not just one person, is involved here.

The "Assad regime" debate seems belabored in the context of my overall remarks, but I appreciate SL's back/forth dialogue.

So it seems that both mls and Sandy may think a plan to send in 75,000 troops would be preferable to a shot across the bow. Perhaps the Senate and the House in floor debates will raise such a plan. I can't picture the US on its own doing something like this even if it is a "worthwhile objective."

I don't know if Syria has the largest stockpile of chemical weapons. But the Syria "threat" that mls describes could be extended to other nations with other WMDs, particularly nuclear weapons. Consider the potentials of Pakistan as expressed over the years.


If a regime is collectively responsible for a warcrime and you wish to punish the warcrime, there is no alternative to regime change and to try the survivors as war criminals.

A limited air attack does not change anything. See the Reagan Libya attack in response to their attack on our troops in Germany.

Your spelling of "Götterdämmerung" is atrocious, and the "shipper," being the "Consignor, exporter, or seller (who may be the same or different parties) named in the shipping documents as the party responsible for initiating a shipment, and who may also bear the freight cost" would not normally be "caught speeding." [cf.]

I think that Mr. DePalma is fundamentally correct. Imagine that we've discovered that the principal of a local school is a pederast. We would demand his firing and replacement. No one would seriously argue that he should receive a relatively light punishment (while being allowed to stay on the job) in the belief that that would dissuade him from doing it again.

The point of my analogy is that we are now equating the use of chemical weapons (but not, apparently, torture) with pederasty and other "absolute" crimes. Perhaps we are correct in doing so, but, as Mr. DePalma suggests, that kind of declaration has consequences. (It led, for example, to the insistence on "unconditional surrender" in World War II. Are we/should we be willing to accept anything less from Assad? E.g., would we negotiate with him to let him live in an Idi Amin- or Baby Doc-lifestyle as an alternative to sending him to the Hague for a war crimes trial? The problem with criminalization is that the criminal in question may lose any incentive to give up if the likely punishment is too dire.)

I stand corrected on my spelling--I should have checked--and on the technical legal error. I will happily stipulate that it is the shipping company--and not "the shipper"--that treats speeding tickets as a cost of doing business. I fail to see how this error, mistaken as it was, affects the analysis one whit. After all, if shipping companies had their rigs confiscated, then "shippers" would put great pressure on companies never to violate the speed limits, not to mention the fact that investors in the shipping companies would flee (in a way that they don't over cost-of-doing-business speeding tickets).



We agree on something? They must be ice skating in hell.


And just how is that regime change sponsored by our SALADISTA and Sandy to come about? Unilaterally by the US with military force? No need for UN Security Council approval or compliance with other international laws? Talk about skating on flaming thin ice.

Note that our SALADISTA failed to mention Operation Desert Fox in 1998.

I'm pretty sure that Blankshot isn't arguing for regime change, he's just arguing against whatever Obama decides to do.

"But even conceding the debatable assumptions, what is the proper level of response. After all, it has to be more severe than the equivalent of the speeding ticket, which would quickly become the Holmesian price that a bad man would be willing to pay."

Ideally we could ascertain the exact amount of punishment which would deter all wrongdoers. This would of course be very difficult to calculate, and we must factor in other costs in this situation (collateral damage, potential American losses, etc.). But it does not seem to follow that we should not try to attach some cost to these actions if in fact we would ultimately like to see them done less. If a dictator knew that every time they used chemical weapons they were going to be 'hit' then that would be at least one factor weighing against their use. Maybe other factors would outweigh it in some situations, but if we do want these weapons used less why take that weight off the balance?

"A limited air attack does not change anything. See the Reagan Libya attack in response to their attack on our troops in Germany."

I must say I did not see the day coming when I would take Reagan's side in an argument against Bart ;)

I think Reagan's attack gave Gaddafi a reason to think twice about attacks on the US that before hand did not exist. I do not see that as 'nothing,' and I doubt Gaddafi did either.


The United States should limit war as a last resort to advance important national interests.

I simply noted that regime change is necessary to take a regime to task for war crimes.

I never said that taking a regime to task for war crimes is necessarily an important national interest.

Iraq threatened our oil supply.

Afghanistan served as a base for an enemy warring against the United States.

But I am struggling to see what our national interest in Syria might be. Do you see any?

The "deterrence model" posited by Mr. Whiskas presumes that the "hit" will be substantial enough in fact to change behavior. But if it isn't substantial enough then the risk (besides collateral damage) is that it simply becomes a cost of doing business.

We're told, incidentally, in tomorrow's NYTimes that a "high official" travelling with the Secretary of State has told reporters that our intervention wouldn't be strong enough to affect the "war of attrition" that would presumably continue at great cost (including thousands of more refugees sent to Turkey and Jordan). All of this makes me despair even more about the point of the proposed American policy. I fear I know what its function will be, which is the destruction of the Obama presidency. But, obviously, Obama himself must see some other point, and besides an "expression" of American dismay (n the name of the world) over the use of chemical weapons, he has not begun to lay out a sufficient argument.

It is, incidentally, to Mr. DePalma's credit that he opposes intervention, since a more cynical person with his general views should be cheering this project on, at least if I'm correct in my prediction that it will destroy any prospects for the kinds of domestic reforms we so desperately need.

Where to post these? Why not here.

"Toxic legacy of Fallujah worse than Hiroshima"
"Exclusive: CIA Files Prove America Helped Saddam as He Gassed Iran"

Depleted uranium and white phosphorus (US in Fallujah and Israel in Gaza); tens or hundreds of thousands dead and millions of refugees in Iraq; and the discussion on this page is about "principle".

See Adam Shatz on the partnership of Israel and Saudi Arabia

The discussion among American liberals is obscene in its banality; unless you see self-aggrandizement as an art form.


I never odd a interpret on this diary. Maybe because the "scuttlebutt" fastener is not so efficacious eye-catching... But that's what I equivalent about this journal. scottsdale custom drapery | scottsdale interior design

Our SALADISTA asks (and I take it that this is sincere):

"But I am struggling to see what our national interest in Syria might be. Do you see any?"

I too have been struggling, even as I struggle reading Pres. Obama's May 2010 National Security Strategy. The US has interests but not necessarily the types of national interests that impact on US national security. The US has an interest in compliance with many international treaties which under our Constitution are part of the law of the land. In several exchanges with mls who has referenced US interests and even national interests I had hoped to expand the debate to US national security. Can we act militarily (even short of "war") without UN Security Council approval, or NATO or a significant international approval? And even with such approvals, what military action should be taken by the US and allies?

Sure,there are legal beagles who can come up with sone US national security interests at stake - YOO know who I mean - and there may be some in the Obama Administration as well.

But we haven't had real debates going back to Korea and coming forward. There was an interesting discussion by historians on the PBS Newshour yesterday on the War Powers Resolution and the circumstances under which it was adopted, including Watergate as it was unfolding, the historians questioning the seriousness of the debate that ended with the adoption of the Resolution. The power of the Executive flows from one administration to the next without real pause for real debate regardless of the party in pwer.

Yes, I too am struggling. It's sort of like watching a ping pong match, back and forth, noting the spin and its effect. The US cannot go it alone (including with a few of the willing). And there are serious questions as to the need for UN Security Council approval. The sad part is that the treaties against the use of chemical weapons may not be enforced (as they haven't in the past). Charles Blow's column in today's NYTimes spell out the matter of killing children with chemical weapons and by other means both here and abroad.

Yes, it's a struggle for all. Let's face up to it.

Check out Larry Solum's Legal Theory Blog for a Conference Announcement on "War Powers: The Politics of Constitutional Authority" by Mariah Zeisberg and note the Agenda/participants.


If Rand Paul launches one of his filibusters, we might actually get a good discussion of what the Constitution requires to start a war.

I have been otherwise disgusted at the congressional response, especially John McCain's opportunistic attempts to have Congress define what a Syrian mission would look like, an unconstitutional effort he would not have pulled with a Republican in the White House.

We may disagree about what the Constitution requires, but I don't change my position for partisan reasons.

The President needs to get a declaration of war /AUMF from Congress to start a war.

Once he or she receives that permission, the President as CiC determines how to conduct that war.

The President cannot start wars on his own and Congress cannot exercise or abridge the CiC power.

The UN and NATO have no say in the matter at all. They are simply means to assemble an alliance to peosecute the war.

Politico "AIPAC to go all-out on Syria"

This is not news. Amazing that there's no discussion of it on American "liberal" blogs. Right wing blogs don't talk about it either; everything is about Obama, and the opposition to the strike is fierce. Oddly enough even Tablet Mag has a piece up blaming it all on a trap set by Putin for Obama.

Israel wants to weaken Iran and Hezbollah. I posted a link to Adam Shatz in the LRB. Read it and weep

"One evening in January at a hotel bar in Manhattan, I tried to ingratiate myself with an officer from Bahrain’s mission to the United Nations. Munira (not her real name) was a former student of a friend of mine. She was also a regime insider, close to Crown Prince Salman bin Hamad al Khalifa, one of the royal family’s more reform-minded figures. I thought she might help me land a visa to Bahrain, which had all but shut out Western journalists since the crackdown at the Pearl Roundabout in February 2011. I can’t have been very persuasive. She promised to ‘assist your quest in any way’, but soon stopped replying to my emails. My visa application was never answered. The protesters at the Pearl Roundabout, Munira told me that evening, were not fighting for constitutional reform or democracy; they were agents of Iran and Hizbullah. When they called for a republic, they meant an Islamic republic along Iranian lines where drinking would be banned and modern women like her would be forced to cover themselves. Fortunately, she had been rescued by troops from a country where drinking is already banned and women like her are forced to cover themselves. For Munira, the arrival in March 2011 of more than a thousand soldiers from Saudi Arabia, via the King Fahd Causeway between the Eastern Province and Bahrain, was a humanitarian intervention. Thanks to the support of its neighbours – and the United States, whose Fifth Fleet is stationed in Bahrain – her tolerant, cosmopolitan, pro-Western kingdom had narrowly foiled a plot hatched in Tehran and Beirut’s southern suburbs. I mentioned that the government-sponsored Bahrain Independent Commission of Inquiry, in its report to King Hamad, had explicitly rejected claims of Iranian involvement in the protest movement. Whether or not they were directed from Tehran, Munira replied, the protests represented a Shia bid for power, and therefore a threat to the Sunni-led kingdom. Now that she had seen ‘terror’ in Manama – her word for the largely non-violent campaign of civil disobedience – she understood Israel’s need for stern measures. She had outgrown her youthful infatuation with the Palestinian cause, especially since Israel had proved itself a friend of Bahrain: ‘Our relations with Mossad are very good.’ Together, Israel and the Gulf monarchies were defending the region not only against Iran, but against the no less insidious influences of the Arab Spring."

Peter Beinart: " I'm not asking Israel to be Utopian. I'm not asking it to allow Palestinians who were forced out (or fled) in 1948 to return to their homes. I'm not even asking it to allow full, equal citizenship to Arab Israelis, since that would require Israel no longer being a Jewish state. I'm actually pretty willing to compromise my liberalism for Israel's security and for its status as a Jewish state."

Here's the choice: Zionism or democracy.
This one's for you Sandy.


Just so I don't appear discourteous, let me say that a) I have never described myself as a Zionist, which, if taken seriously, would require me in fact to cast my lot with Israel (a country I visit often and in which I have good friends); b) there are a variety of Zionisms, some of which are admirable, some of which, especially the theologically-based ones (recall that the original Zionists were relentless secularists) are not; and c) there are a variety of notions of "democracy," some of which are quite ominous (unlimited power in any given majority, regardless of its substantive commitments), some of which are inspiring.

Generally, I think that Israel must do more to recognize that it is already a de-facto "bi-national state" and try to create a state that will earn the continuing loyalty of its Arab citizens, who have the suffrage and are at least formally represented in the Knesset. I am also appalled by the humiliations (and, often, more) visited upon Palestinians in the occupied territories.

I do not support the formal recognition of Israel as "a Jewish state," though it seems to me likely that Israel, like many states around the world, for good and for ill, will continue to be dominated, politically, by one group (i.e., Jewish Israelis). There is no reason in principle to be opposed to that unless one also opposes the sociological fact that Germany will be controlled into the foreseeable future by ethnic Germans or, if Germany remains too volatile a comparator, Sweden by ethnic Swedes. But I fear that the definition of a "Jewish state" will increasingly be an Orthodox one, given the increasing power, in part because of birth rates, of that particular part of the Israeli Jewish community.

I generally find Peter Beinhart's arguments to make good sense, though, as noted above, I may differ from him about the importance of proclaiming the continued importance of maintaining Israel's identity as a "Jewish state." depending on what one means by that. (I personally enjoy the fact that Israel operates under a "Jewish calendar," given the fact that I am forced to operate in the US under a de facto "Christian calendar," but both of these are relatively minor matters.) I generally agree with the positions identified with J Street, the de-facto oppositionist movement to AIPAC among American Jews.

Finally, although I generally believe that there should in fact be more daylight between US and Israeli foreign policy positions, it may well be the case that a sheer realpolitik analysis would come up with the same conclusion in the instant case: i.e., since it's really impossible to tell whether an Assad or rebel victory would be better, a prolonged stalemate may in fact be desiable, with all of its awful consequences. In retrospect, one can wonder whether the Allied victory in World War I, gained in part by US intervention in 1917, was truly preferable to a stalemate and negotiated settlement.

Re Mr. DePalma's The UN and NATO have no say in the matter at all. They are simply means to assemble an alliance to peosecute the war.

The UN Charter, to which the US is a signatory, states: "In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf."

The West Bank is under military occupation. The Israeli "disengagement:" from Gaza was described by an aide to Sharon as "Formaldehyde" to freeze the peace process
Gaza is now an open-air prison.
When asked about the origins of Hamas When I once asked a former Shin-Bet chief, Yaakov Peri, said: “We did not create it, but we did not hinder its creation.”
While Yassin was allowed to spiel, Mubarak Awad, Palestinian Christian pacifist and advocate of non-violent resistance was deported.

Israel is ringed with refugee camps. Half the population of the land under effective Israeli control is Palestinian. Jim Crow within legal borders and Apartheid in the rest. Do they all get the right to vote, or not?

I drink with an Israeli ex IDF. He says he respects Hezbollah. "They fight for their people" If ask him if he respects them as Eichmann respected Jewish leaders? He said "Yes" He's a secularist.

AIPAC pushes for war with Syria and Iran. Israel and Saudi oppose Arab democracy. Which side are you on?


This comment has been removed by the author.

The quote from peri was mangled. It's in response to Uri Avnery

"a prolonged stalemate may in fact be desiable, with all of its awful consequences."
And you play God.
Mahar Arar would laugh I guess.

No increased instability is not in the best interest of the region. It's suicide for plutocrats

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The Constitution trumps the UN Charter or any other treaty, which the President and/or Congress can withdraw from at will.

In real life, we only go to the UN to gather allies and bypass it when a security council member seeks to block our military operations.

"AIPAC pushes for war with Syria and Iran. Israel and Saudi oppose Arab democracy. Which side are you on?"

It is hard to take these kinds of questions seriously. As anyone reading my "rants" should be aware, I vehemently oppose "war with Syria and Iran." And I certainly support "Arab democracy," though, as I've tried to indicate, the term "democracy" is not self-evident in its meaning, and there is no great reason to support tyrannical rule by a majority of one Islamic sect over another.

Israel deserves lots of criticisms for lots of its actions over the past years, but it really won't do to blame Israel for the carnage that is occurring right now in Syria, Egypt, Iraq, or Libya.

"The "deterrence model" posited by Mr. Whiskas presumes that the "hit" will be substantial enough in fact to change behavior. But if it isn't substantial enough then the risk (besides collateral damage) is that it simply becomes a cost of doing business. "

What is wrong with ensuring a cost to those in the business of gassing civilians? It may not provide absolute deterrence, but would at the least be a factor pushing against such use and in the best case could often be the 'thumb on the scales' stopping such use.

I don't believe that DG is saying that he blames Israel for the carnage in Syria (or those other places). What is saying is that he doesn't care about that, presumably because he hasn't figured out a way to blame Israel for it.

But he does blame Israel for Obama's decision to attack Syria, for some reason. Why exactly Obama would be taking orders from the Zionists is still a little murky. Maybe they have found his Kenyan birth certificate?

The Constitution trumps the UN Charter or any other treaty, which the President and/or Congress can withdraw from at will per Mr. DePalma.

But our Constitution states: all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.

That sounds as if the Constitution does not trump but rather upholds "the UN Charter or any other treaty."

"Israel deserves lots of criticisms for lots of its actions over the past years, but it really won't do to blame Israel for the carnage that is occurring right now in Syria, Egypt, Iraq, or Libya."

I posted a lot of links. Here's more on Syria.

Again: the US and Israel do not support Arab democracy; they support autocracy. When it's finally overthrown what do you expect? Talk to me about Bahrain and the Gulf states. Respond to Adam Shatz. I linked to him because asking you to read an Arab would give you more of an out. He's a Jew.

The Syrian rebellion has been hijacked by Sunni monarchies in a power play against Iran and its partners. There are over a thousand groups fighting in Syria right now and without foreign support the campaign would fall apart.

The US and Israel support Sunni monarchies. Iran is democratic by comparison to almost any of them. It it has the world's largest population of survivors of chemical attacks, by Saddam Hussein and sponsored by the US. It even has Jews, who don't want to leave.
Israel is pushing for an attack. It's irrational. Supporting Al Qaeda against Hezbollah is irrational.

Your original questions were not serious, because you are not willing to go beyond the most simplistic and therefore useless answers. You sound like one of Martin Luther King's white moderates, or an earnestly concerned Afrikaner


Israel is pushing for an attack and that effort goes unmentioned even by those who oppose the attack.

I don't support Assad and I certainly don't support sending anyone to be tortured in his dungeons. Somehow I think you'd disagree. Pay attention to details please.

45% of the casualties in Syria are among supporters of the regime. Follow the Vatican news service for reports of the massacres of Christians by our friends the rebels. Follow the Pope on twitter! Learn something.



1) The Constitution is the supreme law of the land, not treaties. The President and the Senate get their authority to enter into treaties from the Constitution and Congress may no more delegate its constitutional declaration of war power to the UN than it can to the President.

2) Effectively, treaties only exist at the sufferance of the President and/or Congress, either of which can and repeatedly have withdrawn from treaties. History is littered with the hundreds of treaties from which we have withdrawn.

This is what you want to hope for. It's the only moral choice, but it's also the only one you have if you want any version of your dream to survive.

Article VI, Clause 2, of the Constitutions (often referred to as the Supremacy Clause): reads:

"This Constitution, and the Laws of the United States which shall be made in pursuance 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, anything in the constitution or laws of any state to the contrary notwithstanding."

This clause does not assign priorities to statutes over treaties or vice versa. What happens in case of a clash? Our SALADISTA suggests that treaties are lower in priority because a treaty can be undone by the President and Congress. Perhaps our SALADISTA expects that the President and Congress will undo the US treaty on the UN. Perhaps our SALADISTA and others of Tea Party ilk would want the US to undo itself from the UN in any case. But until any such undoing, what does the text say about priorities of certain laws over treaties? Jack Balkin has a recent post on the legality of the US proceeding with a military attack against Syria without UNSecurity Council approval, providing a link to his recent Atlantic article. So my next reading is that article. But in the meantime let's hear from textualists and originalists on the interpretation/construction of Clause 2, even if Congress fails to authorize military action against Syria.

After downloading Jack Balkin's Atlantic article, but before having an opportunity to read it, I checked out Stephen Griffin's 9/7/13 post at this Blog "How Relevant Is the UN? A Comment on Hathaway and Shapiro." Both Sandy and Brian Leiter have made interesting comments. And the "clash" involving the Supremacy Clause may be extending to posters at this Blog.

The Supremacy Clause is a straightforward rule to govern conflict of law cases between the federal and state governments. It does not promote treaty law over the Constitution which establishes the power to enter into treaties.

Our SALADISTA should point us to a provision of the Constitution that specifically provides that a treaty the US lawfully enters into pursuant to authority provided by the Constitution is of a lower priority than other laws. Of course, under the un-textual horizontal judicial supremacy of SCOTUS under the Constitution, SCOTUS could declare that a treaty entered into by the US is unconstitutional. What about the UN treaty in this regard? No, this isn't just " ... a straightforward rule to govern conflict of law cases between the federal and state governments" as asserted by our SALADISTA. The Constitution provides for treaty powers and if lawfully exercised become part of the law of the land. Again, what provision(s) of the Constitution provide for prioritizing between matters that make up the law of the land?


The Constitution which establishes the government, its powers and it limits, and which may only be changed by amendment, is by definition superior to any law created by that government - statute or treaty.


Our SALADISTA continues to fail to identify a specific provision in the Constitution that in effect neuters the UN treaty that currently remains in place, thus constituting part of the law of the land under the Constitution unless it is undone by the President and Congress or SCOTUS declares subject to its un-textual horizontal judicial supremacy that the UN treaty is unconstitutional.

[Note: I understand that there have been efforts to amend the Constitution to limit the treaty power to treaties with sovereign states but not with organizations such as the UN.]


The UN Treaty is only effective to the extent that it does not violate the Constitution's delegation of powers and the President and Congress decide to recognize it.

So our SALADISTA latest response raises this question:

Does the UN Treaty regarding UN Security Council approval for military action " ... violate the Constitution's delegation of powers [unless] the President and Congress decide to recognize it"?

Of course the UN Treaty was entered into as provided in the Constitution and SCOTUS apparently has not ruled that such was/is unconstitutional. Apparently our SALADISTA believes that perhaps many treaties entered into by the US are subject to a "delegation of powers" challenge by the President and Congress in tandem but without really undoing the treaties. This would make international law into less law.


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al. has not escape shame-free. Much has been said about the hypocrisy over Hussein, though turning against dictators has a history here (see, e.g., Stalin).
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