What Kind Of Day Has It Been

• Wisconsin.
• Libyan anti-government forces hang-on.
• Jared Loughner, the guy who tried to kill Rep. Giffords, faces 49 federal charges.
• Egypt's new PM gets the Tahrir Square seal of approval.
• Krauthammer continues to try to equate Neocon nonsense with supporting peoples' movements in the Middle East.
• And Jon Stewart lays some truth. Which reminds me of this This American Life--listen to Act I.

The Short List - March 4, 2011

• Anti-Qaddafi protests sprung up in Tripoli today, but dissipated quickly as reports of cash rewards for tips leading to the detention of anti-Qaddafi protesters.  President Obama made his most direct remarks on the situation, while The New York Times forgets American involvement on the African continent during the Cold War.  At the border of Libya and Tunisia, the refugee situation worsens.


• Reports in Yemen indicate the army fired rockets at anti-government protesters, killing two.  


• The Obama administration has begun to assess the impact Islamist groups will have on the new governments that will result from the Arab Spring.  The impact of the protests in the region become clear as Prince Harry postpones a polo match set to be hosted in Dubai (detect the sarcasm).


• China will increase military spending by 12.7% this year, taking their total expenditure to $91.5 billion, according to a parliamentary spokesman.  If that number is accurate it would represent about 13% of the U.S. defense expenditure budgeted for 2010.


• Unemployment has dipped to 8.9% with the economy adding 192,000 jobs.  State and local governments, facing budget crises, cut 30,000 jobs.


• A federal survey indicates people in the 15 to 24 years old range are delaying sexual activity.

What Kind Of Day Has It Been

• Venezuela has offered--and Libya has accepted--to interpose itself in the Libyan crisis. France has already rejected the offer. Fighting in East Libya continues and charges of mass kidnapping by the Qaddafi regime are emerging.


• The Wisconsin Senate has voted to order the missing Democrats to return to the state or face arrest.


• Egyptian PM and vestige of the Mubarak regime, Ahmed Shafiq, resigned.


• Crude is down slightly on the NYMEX and The Economist considers an oil shock.

The Short List - March 3, 2011

• In Libya, what is fairly obviously a civil war, or armed conflict, continues to rage.  There are reports this morning that three Dutch airmen are being detained by pro-Qaddafi forces after they attempted to evacuate European citizens.  SecDef Gates was on the hill yesterday poking holes in some senators' plans to institute a no-fly zone over Libya.  Gates remarked, "Let’s just call a spade a spade. A no-fly zone begins with an attack on Libya to destroy the air defenses. That’s the way you do a no-fly zone. And then you can fly planes around the country and not worry about our guys being shot down. But that’s the way it starts."


• The Ohio State Senate passed a bill that will weaken public unions.  A new NBC/WSJ poll finds that 62% of Americans find it unacceptable to eliminate some employees' collective bargaining rights to cover deficits.  Meanwhile, the NFL's collective bargaining agreement is set to expire at 11:59pm tonight if an agreement is not reached and one seems unlikely.  


• President Obama has invited congressional leaders from both parties to meet at the White House with VP Biden to work on a budget deal for the remainder of this fiscal year.  Meanwhile the previously mentioned NBC/WSJ poll finds that 60% of Americans are concerned steep budget cuts will impact their family.


• The SEC has brought charges of insider trading against Rajat Gupta, the former of the McKinsey consulting group.


• China warns foreign reporters against reporting any anti-government protests, while Iran has completely dropped off the page in what I would consider an eeriely effective media blackout perpetrated by the government.

What Kind Of Day Has It Been

• More sustained clashes in Libya in which the popular forces, despite being subject to air strikes and artillery, repelled government forces. Two days of sustained clashes using heavy weapons serve as further evidence that unrest in Libya has now become an internal armed conflict. International intervention at this juncture would internationalize that armed conflict.


• A Kosovar shot-up a bus filled with U.S. Airmen at the Frankfurt, Germany airport, killing two.


• The federal government will not be shutdown--at least for another two weeks.


• Fox News is pushing Newt and Santorum to make a decision on 2012.


• The U.S. Supreme Court ruled in favor of the Westboro Baptist Church. The ruling is a strong vindication of the First Amendment. But one service family members will take little solace in as these repugnant individuals blame the deaths of soldiers on all manner of nonsense.

Haiti on Bourdain's No Reservations

I’m a big fan of Anthony Bourdain and No Reservations.  This past Monday he was in Haiti.  It was an inspired show, from a gesture of good will that turns sour to a personal recollection of the aftermath of the earthquake, every segment was devastating, infuriating, and hopeful.  It’s the conflict of all these emotions that makes the episode tough to watch.

After a night of reflection, what strikes me most is how the camera, the crew, Bourdain himself looked to find a lighter side to Haiti, and yet it was elusive.  On all the faces of the people you saw the look of defiance and strength, but not lightness.  In all the neighborhoods they passed you saw the cracks and rubble from January 2010’s earthquake.  I know their is laughter.  I’ve heard about it and I’ve seen it, but for an hour I saw destruction and strength and survival.

As Bourdain says, it’s easy to forget, to push the negative images out of our minds.  The simple thing is to develop Haiti fatigue, or Egypt fatigue, it’s just too simple to turn off the TV, to stop reading the articles, to stop caring.  Development is a long-term effort and Haiti wasn’t so developed before the earthquake, but the quake was a sucker punch laid on a staggering boxer.  Maybe the country is still a little punch drunk.  Much like No Reservations, this post doesn’t end on a happy note.  But the strength of the Haitian people is obvious to anyone who watches for five minutes.  Here’s to betting on that strength.

The Short List - March 2, 2011

• In Libya, Qaddafi's comments would be laughable if not for the death his delusional defiance has brought to his people.


• Pakistan's Minister of Minorities, Shahbaz Bhatti, the only Christian in the cabinet was killed outside his home today.  Early reports indicate Islamist militant groups may be responsible.  Minister Bhatti had been critical of Pakistan's blasphemy law.


• As the world's attention focuses on Libya and the Arab Spring, Ivory Coast's former president, Gbago, appears emboldened in his attempts to violently cling to power.


• Nobel laureate Muhammad Yunis has been removed as head of the Grameen Bank by the Bangladeshi government.


• Turkey's Prime Minister Recep Ergodan surprised many with his defiant remarks in Germany over the weekend.  The speech and indeed the recent calculus of Turkey would seem to indicate the country is looking East, having been spurned by the West, specifically the EU.


• Volkswagen has bought a stake in SGL Carbon, a German firm that produces carbon fiber chassis for vehicles.  The move, coupled with SGL's existing relationship with BMW, suggests that carbon fiber may play a big role in the cars of the future.

What Kind Of Day Has It Been

• An eventful one. Libya's counterattacks have apparently stalled. Italy is sending a humanitarian relief mission to Libya. Libya was suspended from the UNHCR. A No-Fly Zone appears likelier.


• Gov. Scott Walker seems to be losing the public opinion war in Wisconsin.


• Crude is over $100 per barrel on NYMEX. Brent is over $116.


• The House passed a two week stop-gap to avoid a shutdown of the federal government.


• Bob Woodward, pot.

Libya: Case Study in Armed Conflict Determinations

Over the weekend a number of outlets reported that the U.N. Security Council had referred the situation in Libya to the International Criminal Court for an investigation of war crimes. In fact, the Security Council resolution merely refers the entirety of the situation in Libya since February 15, 2011 to the ICC for investigation. Characterizing the events in Libya as war crimes, however, raises the question of whether the events in Libya constitute an armed conflict—a war crime can only occur when the laws of war apply; the laws of war apply only when an armed conflict exists. If the events in Libya do now constitute an armed conflict the existence of that armed conflict then raises the question of when that armed conflict began. The Security Council’s referral to the ICC provides an opportunity for a new forum to address the question of the existence of an armed conflict and refine that question’s contours.

The most oft cited definition of an armed conflict was laid out by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Tadic. There, the ICTY determined that a non-international armed conflict exists where there is “protracted armed violence between governmental authorities and organized armed groups.” The ICTY further refined this definition into a two prong test that examines the organization of the parties engaged in a putative armed conflict and the intensity of the hostilities between the parties. The overarching goal of this test is to distinguish the existence of an armed conflict—to which the law of armed conflict attaches—from a riot or other internal disturbance.

In the case of an internal disturbance, the state’s use of force is limited only by its internal domestic laws and human rights norms. In the case of an internal armed conflict, the state is subject to the customary international law of non-international armed conflict as well as Common Article 3 and, potentially, Additional Protocol II. However, the existence of an armed conflict also authorizes the state to resort to force in a manner normally inconsistent with its relationship with its population.

Thus, the Libyan regime’s resort to force against its population may violate human rights norms without being war crimes because no armed conflict exists. Similarly, the use of force may not be a war crime because the use of force falls within the permissible bounds of resort to force within an armed conflict. Or the regime’s use of force may be both violative of human rights norms and violative of the limitations imposed by the law of armed conflict if one exists—and, therefore, constitute war crimes.

In the case of Libya, what began as an apparently unorganized uprising two weeks ago has become a more consolidated rebellion. The popular forces have formed governance committees, established a hierarchy of control, begun training and equipping their forces with weapons captured from the government, those forces have even donned military garb. These are all factors the ICTY looked to determine whether any particular armed band was sufficiently organized to constitute a party to an armed conflict.

At the same time, the violence between the popular forces and the government appears to be sufficiently intense to constitute an armed conflict. The government has resorted to the use of its regular armed forces and weapons such as military aircraft and artillery against the popular forces. Popular forces are similarly using artillery and anti-aircraft weapons in their fight against the government. The popular forces have fortified the towns and cities that they have taken control of, posting sentries and controlling the highways, and using these fortifications to repel assaults launched by the government.

It appears, then, that an armed conflict is now ongoing between the government of Libya and the popular forces. However, it is also apparent that the organizational facets and the use of military tactics on the part of the popular forces are of more recent vintage than the beginning of the uprising. Until the middle of last week, there was no evident hierarchy of control for the popular forces, the popular forces were only lightly armed until they liberated military bases and had military units defect to their forces.

The Short List - March 1, 2011

• Libya seems headed for civil war, as Qaddafi loyalists fail to break the rebel line.  Qaddafi gave an interview to ABC News,  where he was either delusional or a great liar.(video)  Hugo Chavez will not condemn Gaddafi's action and says the U.S. is plotting to invade North Africa for oil.


• Protests continue in Yemen and Oman.


• China's environmental minister gave an unusually direct warning on the dangers of unchecked economic growth on the environment.


• The FBI is using private spies in Afghanistan and Pakistan, while the CIA's black sites program could face a new legal action in Africa.


• The GAO reports overlap in government programs costs billions of dollars.


• Germany's Defense Minister has resigned amid a plagiarism scandal.  He's not the only one facing plagiarism charges.

What Kind Of Day Has It Been

• Libya counterattacks. It is difficult to see the use of aircraft as anything other than (1) a tremendous mistake; and (2) an invitation to international intervention, coming so close in time to multifarious discussions of No-Fly Zones. Aside: the evolution of the popular uprising in Libya is a veritable case study in international humanitarian law.


• Somali pirates hijacked a vessel carrying 3 Danish children. The very real threat of Somali pirates received a great deal of attention after Somali pirates murdered 4 Americans on a yacht. DCExile has previously argued that recognition of Somaliland will prevent the expansion of piracy.


• Republicans are doubling down on DOMA because . . . discrimination places them on the right side of history? 


• Republican spending plan will put 700,000 workers out of their jobs through 2012. By way of comparison, between June 2010 and January 2011, only 284,000 jobs were added to the economy.

What Kind Of Day Has It Been

• The whole Libyan UN delegation has defected from the Qaddafi regime in favor of the protesters. The United States is posed to impose sanctions on Libya unilaterally.


• Pakistan charged Raymond Davis with murder. The ISI-CIA break appears to be more than merely rhetorical as the ISI demands information on CIA contractors operating in Pakistan. Were I a CIA contractor in Pakistan, I think I'd probably leave now.


• Oil futures continued their upward climb, though at a much reduced rate, as Saudi Arabia increased production by 700,000 b/d. Only about 450,000 b/d of Libyan oil are reportedly shut in currently.


• And Newt's trying to rewrite history.

The Short List - February 25, 2011

• As the international community works to respond to the situation in Libya, a day of protests is expected in Tripoli.  In Benghazi, where the rebellion began, opposition groups are working to sustain the rebellion, but also govern Libya's second largest city.  The Economist gives a thoughtful piece on how the West deals with dictators.


• Iraqis took the the streets in several major cities to protest for better government services.  Some of the protests turned violent and reports indicate people have been shot by government security forces.


• The Economist considers what the Arab Spring may mean for oil prices.


• A NATO supply convoy in Pakistan was attacked today killing 4.


• The Washington Post chronicles the challenges freshmen congressmen face after voting to cut spending.


• Daily Graph combo: China's provinces' GDP as countries and then U.S. states' GDP as countries.  Both Arkansas and Jiangxi province have a GDP close to Kazakhstan.  Illinois, meanwhile, is only bested by Guangdong province and has a higher GDP then Turkey.  

What Kind Of Day Has It Been

• Qaddafi's regime looks closer to demise as a top security official and cousin of Qaddafi defected. Slate asks how much Qaddafi pays his mercenaries.


• The U.S. military is investigating whether it was running psyops against members of Congress.


• Boeing finally (or again) won a controversial USAF tanker contract.


• Lobbyist are accusing White House staffers of adhering to the letter but not the spirit of Obama Administration anti-lobbyist access policies. If true, it will likely prove to be an error too cute by half and constantly repeated during the 2012 campaign.

The Necessity and Future of Unions

As the situation in Wisconsin lurches forward, the blogosphere has come alive with articles discussing the future of unions, both public and private.  Will Wilkinson has been writing a series of posts laying out the differences he sees between public and private unions.  Just yesterday, though, he took a break from that to defend the basic utility of unions.  He took the time to try and convince skeptics on both the right and the left that you can be a libertarian and a union supporter.

He considers what unions could be, the value they create for their members, and urges an adjustment to the legislative framework that encourages corporations and unions to be adversarial.  Perhaps a bit surprisingly, Andy Stern, former head of SEIU has some similar ideas.  Mr. Stern argues that the old antagonistic framework of unions is outdated and obsolete in the face of a truly global economy.  And he notes, “quality is our only job security in the long run. You can use lots of things like politics and the natural slowness of change, but in the end, if people are waiting on long lines at the DMV, something will happen eventually.”

I think both private and public sector unions still know their core responsibility, which is to serve the interests of their members, but over time serving their members has come to mean pursuing more salary, more benefits, and more job security.  It isn’t a holistic approach and has alienated a public that knows fewer and fewer union members.

Perhaps the showdown in Wisconsin will compel unions to take a look at how they do business, to adapt, and to make concessions to the state government (and corporations), but also request concessions from corporations and governments that go beyond compensation.

As a side note to this post, Stephen Stromberg points out, Gov. Walker’s rhetoric doesn’t match his actions.  If you’re serious about the deficit you don’t hamstring the state’s ability to raise new taxes.  And as mentioned here at DCExile a few days ago, there are two sides to the ledger.  We’re going to need to change both sides to balance state and federal budgets.  As David Leonhardt tells us on Tuesday, you can’t just cut your way to growth.

The Short List

• Qaddafi is gathering forces loyal to him in Tripoli as violence continues in Libya.  Oil prices have hit $100 a barrel in trading already today.


• Yemen's President Ali Abdullah Saleh has ordered the Yemeni police to protect demonstrators, whether they are pro- or anti-government.


• Pakistan's ISI is ready to split from the CIA.


• A British court has ordered the extradition of Julian Assange, founder of Wikileaks, to Sweden to face charges of sexual assault.  Assange's legal team can and will appeal the order.


• Two main labor unions in Greece staged a general strike protesting austerity measures.  A group of young protesters broke off and turned violent.


• Gov. Scott Walker has urged other governors to challenge public employee unions for major concessions.  ** Editorial Note:  It is no small difference to ask for concessions while also removing the ability to collectively bargain.  You can gain concessions, without eliminating collective bargaining.  Indeed, why call for concession if you're going to kill the union anyway?**


• GM posted a profit in the fourth quarter of 2010, following its emergence from bankruptcy.  **Editorial Note:  A government bailout and good will negotiations with the UAW prevented the total liquidation of GM, saving roughly 200,000 jobs.**

What Kind Of Day Has It Been

• The Obama Administration has determined that it will no longer defend the Defense of Marriage Act. **Editorial Note: Hallelujah.**


• Clifford Kraus in the New York Times tries to explain why unrest in Libya, which produces only 2% of the world's oil, has cause oil prices to spike $9 in three days. Kraus blames the quality of the light sweet crude that Libya produces; notably, there are no reliable figures on the amount of oil actually shut-in currently.


• Speaking of Libya, Qaddafi has reportedly lost control of more cities to protesters who are now well armed and raising the pre-revolution banner. 


• In the shadow of the Arab world's 1848, fighting has restarted in Ivory Coast.

The Short List

• The situation in Libya remains opaque to the rest of the world, but at this point there appears to be a race to chaos and violence which looks set to engulf the country.


• Following on the heels of the Wisconsin protests, union members in Ohio protested a similar bill in that state that would greatly weaken collective bargaining by state employees.  In Indiana, another bill appeared to have died as Democratic lawmakers state away.


• In New Jersey, Governor Chris Christie laid out a budget plan that would assail public workers, including teachers.  **Editorial Note:  I liked Gov. Christie, but promises of shared sacrifice seem to be only empty rhetoric and his claims to have inspired the governors of New York and California seems conceited.**


• Rahm Emanuel won the Chicago mayoral race last night, receiving 55% of the vote in a 6-way race.


• Somali pirates killed four Americans they had taken hostage aboard a yacht on Tuesday.


• The search continues for survivors in Christchurch, New Zealand following yesterday's earthquake.  Seventy-five people have been reported killed.

What Kind Of Day Has It Been

• Light Sweet Crude is up $7.87 to $94.07 today on the New York Mercantile Exchange.


• The UN Security Council has gone into a closed session to address Libya. No word on results of that meeting yet.


• The 40 year old Iranian frigate and support ship passed through the Suez today. The Israelis are staying mum after making quite a lot of noise last week.


• Raymond Davis, the American being held by Pakistan over the killing of two Pakistanis, looks to be a private security contractor hired (though not employed) by the CIA. Color me unsurprised. 


• Protests continue in Wisconsin. The Dropkick Murphys have released early a song off their forthcoming album in solidarity with the Workers.
  

Looking at Revenue

House Republicans rejected an amendment to their spending bill that would have corrected an error that will cost taxpayers $53 billion over 25 years.  Matthew Steinglass breaks down the situation more here, but the issue is leasing rights on public land for deepwater drilling.  An oil company would pay royalties to a private landowner, typically, for the rights to drill on their land.  The government decided to grant free leases on otherwise commercially nonviable lands.  The commerical viability of the land was contigent on the price of oil, and thus the leases should not have been given out after the price of oil reached a certain point. Through a Minerals Management Service error, free leases were given when they shouldn't have been.


The amendment, offered by Rep. Markey, would have corrected the lease free error going forward.  It would not have sought payment for passed royalties.  According to GAO, it would netted the government $53 billion in revenue over 25 years.  You can mock the original error, but to use the error to exonerate the oil companies from paying the leases in the future seems like a stretch.  We have been hearing constantly about how we have to cut spending, but there are two sides to the ledger.  Passage of this amendment would have done very little to help the deficit, but the revenue collected would have fully funded USAID every year, according to figures taken from the Republican Study Committee.  If Speaker Boehner and his House Republican colleagues were truly serious about addressing the deficit, you would think they'd support an amendment that collects royalties from oil companies, especially since these same oil companies pay royalties to use private land.

The Short List

• Libya remains embroiled in protests and it appears Qaddafi's rule is growing increasingly tenuous.  Earlier this morning the Libyan Ambassador to the U.S. was on Good Morning America calling for Qaddafi to go(video).


• Midlevel Taliban leaders admit to a rift between themselves and top Taliban commanders.  The midlevel leaders have grown weary of a fight that the top commanders don't personally participate in.  In Kabul, there are reports that Gen. Petraeus offended the Karzai government.  Ahmed Rashid sits down with The Economist to discuss Pakistan's multi-facted crisis(audio).


• Scores have been killed in an earthquake in New Zealand.

Libya, Briefly

Former British Foreign Minister David Owen today called for a UN No-Fly Zone to be adopted and imposed on Libya. Owen’s call came in the wake of the defection of two senior Libyan air force pilots and reports of the state’s use of airstrikes against protesters in Tripoli. Along with the defection of the two pilots, several Libyan diplomats resigned in protest over the state’s use of force against protesters. At the same time, protesters in Benghazi have declared their city liberated from the regime.

Targeted Killing Justifications and Revelations

Recent revelations about the procedures used by the United States in its targeted killing program indicate that the U.S. views individuals selected for targeted killing as legitimate targets at all times. That is, once identified, a targeted individual may be subject to the use of force at any time thereafter. However, such continuous targetability calls into question the ability of the United States to rely on self-defense as one of its two legal justifications for its targeted killing program. Strikes against these continuously targetable individuals would then only be lawful within the context of an armed conflict. Any targeted killing outside of an armed conflict or valid self-defense would be an illegal, extrajudicial execution.

The United States defends the legality of its covert targeted killing program on the basis that those killings fall within the paradigms of armed conflict or self-defense. Both justifications afford a state the right to use force against another state, non-state actor, or arguably an individual. Both justifications are subject to strict requirements and limitations.

International law admits only two categories of armed conflict: international and non-international. International armed conflicts occur whenever there is a resort to force between two states. Non-international armed conflicts occur between states and non-state actors, or among non-state actors, and are distinguished from riots or domestic disturbances by the level of organization of the non-state actor and the intensity of the hostilities between the parties. When engaged in an armed conflict, a state may lawfully use force against enemy combatants or civilians who directly participate in hostilities.

Judging a state’s reliance on self-defense is more difficult—particularly when it is invoked as a justification for a covert or unacknowledged state action. Self-defense must be predicated on an imminent or ongoing armed attack. The force used must be necessary to disrupt that armed attack and the force used must be proportionate  the need to repel or deter that armed attack. Moreover, to be invoked against an imminent armed attack, that attack must be more than a mere threat. This difference in threat versus imminent armed attack is the difference between the 1967 Israeli strike against the Egyptian air force—valid as self-defense—and the 1981 Israeli strike against the Iraqi Osirak nuclear reactor—not valid as self-defense.

Here, then, lies the particular difficulty of evaluating the lawfulness of a targeted killing justified by self-defense. These attacks are covert and are based on classified intelligence information. How are those of us outside of government to adjudge whether a targeted killing satisfied the requirement that the United States faced an imminent armed attack? The question is impossible to answer directly, so we are forced to rely on public characterizations of the targeted killing program and the procedures on which it is based.

Public characterizations of the United States’ targeted killing program suggest that there are in fact two distinct programs: one operated by the U.S. military and the other by the Central Intelligence Agency. Public characterizations have further indicated that the CIA’s program, at least, maintains a list or bullpen of individuals who are targeted and remain targetable until killed. It is this continuous targetability that calls into question the United States’ reliance on self-defense.

This is not to say that a state, a non-state actor, or an individual cannot be continuously responsible for imminent or ongoing armed attacks. However, such a scenario better describes armed conflict and its attendant intense hostilities than self-defense. Of course, armed conflict provides the authority to use force against these individuals. Moreover, those hostilities would be observable to the general public and would likely look a lot like what is going in Northwest Pakistan—such frequent resort to targeted killings that hostilities between the United States and non-state actors likely place the United States in an armed conflict there.

The same cannot be said for U.S. involvement in Yemen and Somalia, for instance. The United States reportedly uses force in those locales only sporadically. The individuals it targets there may be continuously plotting against the United States. They may be continuously recruiting potential attackers. And they almost certainly present a significant threat to the United States. However, it is unlikely—given both the sporadic use of force by the United States and the sporadic publicly known actual or attempted attacks against the United States—that these individuals are continuously responsible for imminent armed attacks within the meaning of self-defense.

Without the ability to rely on self-defense as a justification for a targeted killing, the United States’ must rely on the existence of an armed conflict for the authority to employ force. If no armed conflict exists where and when the United States employs a targeted killing, and that targeted killing does not satisfy self-defense, then such action can only be described as an extrajudicial execution—a gross violation of international law and human rights norms.