Tuesday, January 28, 2014

D.C. Exile's 2014 State of the Union Drinking Game

He shall from time to time give to Congress such information on the State of the Union that may form the triggers of automatic consumption of alcohol by viewers at home.  U.S. Const., art. II, sec. 3.

- Finish a bottle of bourbon before the President speaks. America needs the consumer spending and you need the alcohol to have strong feelings about the speech.

- Every time the President says the word “inequality” take a swig of Gran Marnier, spit it out, then take two swigs of PBR. You deserve only a taste of the good life. Work harder.

- Every time the President mentions taking action on his own authority, without Congress, chug a pint of an imperial stout.  Query whether the sick feeling in your gut thereafter is a result of the stout or crush of tyranny.

- If the President mentions bipartisanship (the need for it, his desire for it, the boon it represents to this country), throw whatever drink you have in your hand at the screen out of disgust.  Hasn’t this guy learned by now?  Christ.

- Every time the President mentions minimum wage, drink a sip of Bud heavy.  Carefully not to spill, though; you can’t afford to waste a drop.

- If the President mentions manufacturing--remember manufacturing?--take a swig of Miller Lite and lament that it’s no longer an American beer. Maybe lament you consider it a beer too.

- If the President mentions or alludes to Pete Seeger (RIP), drink a bottle of rye.  Then go read this and reflect.  If tears don’t well up in your eyes, you’ve lost the fight.

- Every time the President mentions gun control shotgun a beer. If the President fails to mention gun control at all, take a Coors Light can, shake it and open it in your friends face. Silver bullets don’t kill people, assholes who shake up silver bullets kill people.

- Everytime the President mentions taxes, pour a little of your drink into a communal cup. After the speech that cup will be a foul, room temperature beverage. Don’t worry it’s going to corporate interests and poor people, both of whom will drink anything.

- Everytime the President mentions Iran, you must put down your drink and not touch it for thirty seconds. Why thirty seconds? Because that’s all the time you can hold out you drunken, morally bankrupt American!

- Everytime the President mentions Ukraine, take a shot of vodka looking east and take a breath of freedom looking west.

- If the President mentions GTMO or drone strikes or the war against al-Qaeda and associated forces, down a shot of mint schnapps for the inherent contradiction and its generally unpleasantness.

- Every time the President mention Syria . . . . Ha!  Sucker.  He’s not going to mention Syria. Waterfall for your stupidity

- Every time the President mentions primary or secondary education count backward from 30. This will get more fun with time.

- Every time the President mentions higher education, recite the alphabet backwards. Just like the officer made you do sophomore year.

- Every time you know this drinking game is more important than the speech itself, take a shot of Pimms and yell, “God save the Queen!” ALTERNATE ENDING: Chug a Molson and sing “O’ Canada!” (yelling “Save the Queen!” still applies, though.  Silly Canadians.).

- Every time the President mentions immigration take a shot of tequila.  (Racist.)

- Every time the President mentions healthcare, Obamacare, or the ACA chug Robitussin until you robotrip. What else are you going to do with it now that you have healthcare and can see a doctor?

- Every time the President mentions the NSA throw a shot over your right shoulder. Our government overseers need a drink too.  Make it top shelf liquor, too.  You don’t want a bad report.

Saturday, March 16, 2013

Drones and Pakistan, Consent and Sovereignty

This week, the U.N.’s Special Rapporteur for Human Rights and Counterterrorism Ben Emmerson, issued a statement concluding, “As a matter of international law the US drone campaign in Pakistan is . . . being conducted without the consent of the . . . legitimate Government of [Pakistan]. . . . and is therefore a violation of Pakistan’s sovereignty.”  Emmerson based his conclusion on meetings he held between March 11–13, 2013 with representatives of Pakistan’s government, as well as Pakistani civilians.  His lengthy statement includes a detailed summary of those conversations that elaborate the view of Pakistan’s government and is instructive because of its contradictions.  But I digress.

In so far as Pakistan does not consent to U.S. drone strikes, those strikes most certainly violate Pakistan’s sovereignty.  Whether they violate international law is a more difficult question.  Any discussion of the international law governing a state’s use of force must begin with the UN Charter, which occupies the field of modern jus ad bellum.  Article 2(4) of the UN Charter states:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
There are three exceptions to this blanket prohibition on the use of force between states: two found within the text of the UN Charter, and one found in the nature of states.  First, one or more states may use force when it is authorized by the U.N. Security Council under Chapter VII:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.  (Article 39) Should the Security Council consider that measures provided for in Article 41 [measures short of force] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.  (Article 42)
Second, Article 51 (also found in Chapter VII), preserves each state’s inherent right to self-defense in case of an armed attack:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Third, although not found in the UN Charter, state consent to use of force is a well-recognized principle of international law.  That is, State A may authorize State B to use force within State A’s territory.  Although State B is clearly violating the territorial integrity of State A by so using force, Article 20 of the Draft Articles of State Responsibility state that “[v]alid consent by a State to the commission of a given act by another State precludes the worngfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”  The continuing validity of consent in international law was affirmed by the International Court of Justice in Armed Activities on the Territory of the Congo

The U.N. Security Council has not authorized U.S. use of force within Pakistan so at least that justification for use of force is off the table.  However, with any given drone strike the United States may invoke consent or self-defense or both—the two justifications are not mutually exclusive. 

But the United States is clearly at least relying on consent to justify the lawfulness of its drone strikes in Pakistan.  An article in the Wall Street Journal in September described the evolution of the quantum of consent the United States has considered valid over the last several years.  David Sanger also explored Pakistani consent to US drone strikes in his excellent book Confront and Conceal. From these and other sources, it is apparent that Pakistan gave its consent to US drone strikes at some point.  The problem for both the United States and the Special Rapporteur is determining whether Pakistan continues to consent to those strikes and, if not, when did it revoke that consent. 

As the Draft Articles state, consent only precludes the wrongfulness of an act to the extent that act remains within the limits of the consent given.  Thus, if State A consents to force by State B in the northern half of A’s territory, any force used by B in the southern half of A would be wrongful whereas the same sort of force used in the northern half would lawful.  Similarly, consent to force tied to narrow objectives is only lawful in pursuit of those objective.  For example, if Pakistan were to authorize drone strikes targeting Tehrik-e-Taliban Pakistan but not Lashkar-e-Taiba, then any U.S. strike targeting LeT would be a violation of Pakistan’s consent and thus wrongful under international law.  Even after granting consent to use of force in it’s a territory, a state may subsequently revoke that consent, rendering any use of force by the outside state after the revocation of consent unlawful.  Such was the case of the Democratic Republic of the Congo and Uganda in Armed Activities on the Territory of the Congo

Public statements by Pakistani politicians and elected officials, and statements by officials from the Pakistani Ministry of Foreign Affairs and Defence on which Emmerson relies, seem to suggest that Pakistan has revoked its consent for U.S. drone strikes.  However, statements alone cannot be conclusive.  As Roberto Ago noted in his capacity as Special Rapporteur for State Responsibility, “like all manifestations of the state . . . consent can be expressed or tacit, explicit or implicit, provided, however, that it is clearly established.”  Obviously, observers’ lives are made easiest when consent is expressed and done so through some public, verifiable means as in a treaty.  Unfortunately consent is not always given in so accessible and identifiable a fashion.  Consider, for example, the consent given by former President Saleh to U.S. drone strikes in Yemen.  Reports of that consent indicate that it was broad consent to use of force given verbally and privately by President Saleh with the expectation that Saleh would claim any U.S. strikes were the work of Yemen’s airforce both in public and to Yemeni lawmakers.  In Yemen’s case, then, consent was clearly given by Yemen (or at least President Saleh) to the United States.  But the clarity of this consent let alone its very existence was secret and not accessible to observers.  Thus, it is not sufficient merely to look to public statements by a state’s political leadership for evidence of consent or its absence.  We must also consider the objective behavior of the state.

In Armed Activities on the Territory of the Congo, the ICJ was forced to consider when the Democratic Republic of the Congo withdrew its consent to the presence of Uganda armed forces on its territory.  The Court considered the arguments of both sides but concluded that, when Congo President Kabila declared the presence of Ugandan forces in the DRC to be an invasion, consent for their presence had been revoked.  Although his statement is similar to accusations from Pakistani officials that the United States is violating its sovereignty, one must recall that Kabila’s statement was paired with Congolese actions.  Within two weeks of declaring that Uganda’s presence constituted an invasion of the DRC, Kabila had enlisted the armed support of Namibia, Zimbabwe, and Angola to oust both Uganda and Rwanda’s forces from the territory of the Congo. 

It is worth noting that Pakistan has taken no similar, concrete steps to demonstrate its revocation of consent to U.S. drone strikes.  This is not to say that Pakistan need pair its verbal protests with a direct assault on U.S. or coalition troops operating in Afghanistan to make a revocation of consent operative.  But Pakistan’s behavior in general has been at best ambiguous.  Despite having the capacity to “‘trace and detect any aircraft’” operating near its border with Pakistan and (apparently) the ability to shoot such aircraft down, there have never been reports of Pakistan shooting down a U.S. drone.  Although the absence of public reports of such downings is not dispositive, the fact that U.S. drones carry out any strikes even though they are slow moving, are not maneuverable, and carry no air defense countermeasures, strongly suggests that Pakistan is choosing not to interdict drones.  Additionally, Pakistan has a modern air force that is at least as capable as the Iranian air force but, while Iran has chased a number of U.S. air force drones over the Persian Gulf in recent months, there have never been any similar reports from Pakistan.  Finally, and perhaps most tellingly, Pakistan has not taken the sort of concrete steps vis-à-vis the United States for drone strikes as it has for other violations of Pakistani sovereignty.  For example, in November 2011, a frontier incident between U.S. and Pakistani troops (that resulted in the death of 26 Pakistanis), led Pakistan to both close its border with Afghanistan to NATO convoys and to kick U.S. drones out from their Pakistani bases.  Pakistan also upgraded its Afghan-border air defense systems.  Similarly, after a CIA contractor killed two Pakistanis in January 2011, Pakistan ousted all CIA contractors and reduced the number of U.S. special operators allowed in Pakistan for training missions from 120 to 39.  Not only has Pakistan not taken such steps in response to U.S. drone strikes, at least until the Wall Street Journal report at the end of September 2012, Pakistan  continued to clear the parts of its air space in which the CIA indicated it would conduct drone strikes.  That is to say, not only is Pakistan not intervening to prevent drone strikes, it is taking affirmative steps to facilitate those strikes.  Thus, Pakistan’s behavior at least renders its public statement ambiguous and, more likely, supersedes those statements altogether.  Again, consent must be clearly stated but clearly stated to the recipient of that consent not the outside world.

If the United States is operating without Pakistan’s consent within Pakistan, it is violating Pakistan’s sovereignty—and it may be violating international law.  However, Emmerson’s conclusion notwithstanding, it is far from clear that, as a matter of international law, the United States is violating Pakistani sovereignty.  

Wednesday, February 20, 2013

Republicans: Good for the Wealth; Bad for National Security

Greg Sargent writes at the Plumline:
If anything, that position is made worse by the new study’s finding [that increasing income inequality is driven by the shift of wealthy peoples' income from wages to dividends and capital gains]. After all, Republicans are openly conceding the sequester will damage our national security, even as they refuse to avert it by agreeing to the closing of loopholes benefiting the wealthy — even though this would likely be part of a deal in which they got more in spending cuts than they’d be conceding in new revenues! As the new study shows, those benefiting from GOP opposition to any new revenues are doing extremely well indeed — lending more ammo to the Democratic argument that Republicans would sooner damage our military and economy than ask for a penny in new revenues from the very rich.

You can find the study to which he refers here.

Tuesday, February 12, 2013

DCExile's 2013 State of the Union Drinking Game

We shall from time to time create a drinking game . . .

Yes, dear Reader, it is that time of the year again.  The invitation has been sent.  The speech is in its final draft.  All that remains is the delivery itself (and the pre-game show, the pre-pre-game show, the introduction by the Sergeant at Arms, the handshakes, the standing ovations, and doubtless some display of incivility on the part of Tea Party members of Congress).  With that in mind, we humbly submit to you our annual rules (see 2012, 2011 rules) for consuming alcohol while viewing that Constitutionally-mandated presidential rite: the State of the Union.

- Pre-game show rules: one shot of bourbon, one blow to the head from a ball-peen hammer each time Erin Burnett appears on screen.

- “Mr. Speaker, the President of the United States!”  On that statement, drink one flute of champagne. After all, we’re still celebrating it’s BHO again and not that other guy.

- Speaking of the other guy, drink a carton of milk. That joke will never get old.

- Each time the President says "immigration reform," pour a half shot of tequila into a half shot of bourbon. It'll all be American soon.

- Each time the President says "nuclear arms" shake up your beer can and try to drink it without any spillage. 

- Each time the camera shows a shot of the Al Green(TX-9) take a drink while attempting to howl

- Each time a Republican-appointed Supreme Court Justice is on camera, do a slammer shot and yell, "Order in the court!"

- Each time the President says “bipartisanship” pull out a clump of your hair, put it into a shot glass of 151, and set the whole thing on fire. Drink at your peril--and the country’s.

- Each time there's a camera shot of Sen. McConnell take a shot of Kentucky Gentleman and say "Hello Clarice."

- Each time John Boehner tears up, do a waterfall. You don’t stop until he does. God help us all.

- Each time the camera shows Michelle Obama drink a Cosmo and do a set of curls.

- Each time the President mentions infrastructure, chug one can of American beer (your humble authors suggest Dale’s Pale Ale or Pabst Blue Ribbon), place it intact on your coffee table, and construct a pyramid.  If you can still see the TV over the pyramid by the end of the State of the Union, consider the speech a missed opportunity.

- Each time a Republican is rude, uncivil, or otherwise disrespectful of the President, take one shot of tequila mixed with sugar because somethings aren’t improved by any amount of sugarcoating. 

- If the Pope is mentioned, eat a saltine and enjoy a glass of Carlo Rossi. Bonus: write your own name on a piece of paper, set it aflame, and wait pensively for the smoke to turn white.  It’s going to be a long couple of months, folks.

- If the President mentions or otherwise hints at the possibility of one of his nominees being held up or otherwise filibustered, take (Article) Two shots of rye whiskey and shout, "j'accuse!" at the television. Bonus: If at this point the camera pans to Lindsey Graham (R-SC), throw a copy of the 9/11 Report at the screen.

- If the President mentions Afghanistan, drink an entire bottle of Johnnie Walker Red: Keep Walking.

- If the President mentions health care reform, drink one shot of mouthwash. To your health!

- If the President mentions Syria, eat one spoonful of humus mixed with shards of glass.

- If the President mentions voting or election reform, enjoy one tall glass of Budweiser because, although it used to be made in America, it's done right by the Belgians anymore.

- Each time the camera pans to Ted Nugent, take one long pull off a bottle of vodka and air guitar "Cat Scratch Fever."

- Each time the camera pans to the First Lady's 102 year old guest, set aside one sip of sweet vermouth to be consumed two hours hence. Don't forget to drink . . . I mean, vote.

And that's all for the State of the Union, folks. Our only advice to you for the post-game shows is take all remaining booze, beer, shards of glass, humus, mouthwash, and sugar, blend over ice, and hope it's strong enough to knock you out for the next six months. We'll wake you when the political capital is spent and we're in much the same place we are today.

Sunday, February 3, 2013

Rendition vs. Rendition or Adjectives Matter

On New Year’s Day, Craig Whitlock reported in the Washington Post an August 2012 arrest by local authorities of three Somali men transiting Djibouti in August who were then interrogated by FBI agents and transferred to U.S. custody to face charges in the United States in Article III courts.  After this depiction, Whitlock concludes that “the Obama administration has embraced rendition,” declaring that they have “tak[en] on renewed significance because the administration and Congress have not reached agreement on a consistent legal pathway for apprehending terrorism suspects overseas and bringing them to justice.” He clearly links the Obama administration’s practice to the Bush administration practice, impliedly asking us to see this as yet another example of Obama carrying on his predecessor’s counterterrorism tactics (and getting away with it without criticism):
The men are the latest example of how the Obama administration has embraced rendition — the practice of holding and interrogating terrorism suspects in other countries without due process — despite widespread condemnation of the tactic in the years after the Sept. 11, 2001, attacks.  (emphasis mine).
 But the practice Whitlock describes through the August 2012 vignette is not the practice as he defines it in the emphasized quotation above.  Whitlock describes the arrest of suspects, their transfer apparently without extradition or other judicial process to the United States, and their subsequent indictment and trial. The Bush-era practice—the one subject to “widespread condemnation . . . in the years after the Sept. 11, 2001 attacks”—involved detaining individuals in one country, transporting them to a third country, and then torturing them. These individuals were not indicted, they were not provided attorneys, in fact there was little expectation that these individuals would be heard from again. Examples of the Bush-era practice include the abduction of Osama Moustafa Hassan Nasr in Milan in 2003 and his subsequent transfer to Egypt to be tortured—26 Americans have been convicted by an Italian court in absentia forthis incident—and the 2003 mistaken arrest of Khalid el-Masri by Macedonian police, his transfer to U.S. authorities, and his being held or tortured in Iraq and Afghanistan. In 2004, after the U.S. realized that el-Masri was mistakenly detained, he was flown to Albania and deposited on the side of a road at night.

If these practices—the ongoing Obama administration practice described by Whitlock and the Bush-era practice—sound substantially different to you, that is because they are. The Obama administration is engaged in a practice Whitlock correctly identifies as rendition. The Bush-era practice Whitlock invites us to remember is known as extraordinary rendition. The adjective matters a great deal.

Rendition is a practice greatly predates September 11, 2001—see, for example, this 1934 BU law review article on the practice. It is also exactly as Whitlock describes it: “The return of a fugitive from one state to the state where the fugitive is accused or convicted of a crime.” 8 ed. Black’s Law Dictionary. Rendition allows states to avoid the normal legal procedure of extradition when there are barriers to extradition like the absence of an extradition treaty, or the absence of a similar crime in each jurisdiction, or when extradition might be unfeasible for political reasons. Rendition is certainly not the normal mode of business between states, and it may circumvent due process rights the accused is entitled to, but it is not uncommon and its purpose is to expose the rendered individual to judicial process: either trial or the execution of a sentence for conviction.

What makes extraordinary rendition extraordinary is that its purpose is not to bring the target before a court for trial or to otherwise subject the target to judicial process. No, the point of extraordinary rendition is to avoid judicial process altogether—to cause an individual to disappear, be held incommunicado, and extract intelligence not evidence from that individual. What made the practice so heinous in the Bush administration is not merely its lack of transparency or accountability but rather that its opacity facilitated torture.

So, yes, the Obama administration is using ordinary rendition. Is this shocking? No. Is it in anyway similar to the abduction, black sites, and torture used in the Bush administration? No. Adjectives matter.

Thursday, January 31, 2013

Gun Control via Liability Insurance

This post is cross-listed on From Corn Fields to the Capitol.

NPR has a really great post tied to a story they ran on Morning Edition this morning. In it some experts suggest one practical way to achieve a measure of gun control and price in the potential for negative externalities is by requiring gun owners to purchase liability insurance.  If you own a gun you must also purchase a liability policy to cover the cost of any damage your gun incurs, very similar to the requirement many states have requiring car owners have, at minimum, liability insurance. But there's another wrinkle that could be throw in there.  Here's Prof. Justin Wolfers from the University of Michigan:
Another even more powerful approach is to recognize that the problem isn't guns per se, but gun violence. Thus, instead of taxing guns, we should tax gun violence. Basically, this is the same as saying that we should make gun owners liable for any damage their guns do. Not only would this discourage some people from buying guns, it would lead those who do keep guns to be more careful with how they're stored. Indeed, greater care would surely have kept Adam Lanza out of his mother's cache. The problem though, is that Nancy Lanza is neither with us to pay the damages her gun caused, nor could she afford to pay for the enormous damage her gun wrought in Newtown. And so the only way this solution works is if guns required mandatory liability insurance, much as we force car owners to buy insurance for the damage their machines wreak.
This is an intriguing solution to me, and one I think may sportsmen and women would find very compelling. I know my dad would. He's a card carrying member of the NRA, hunter, gun enthusiast, and all the rest. In the wake of the tragedy at Newton our annual Christmas Eve dinner started out talking about gun control. You won't find a bigger proponent of the second amendment, but you won't find a bigger proponent of individual responsibility either. He thought it made perfect sense that if your gun is used in a crime, you are charged as if you had committed the crime. What if the gun is stolen? Did you report it? Was it locked in a gun safe or did you have a trigger lock on it?

Of course, the trouble with requiring the purchase of "gun insurance" or "gun violence insurance" is that some people just won't buy it. Here's Russ Roberts a research fellow at the Hoover Institution:
[T]he logic is not quite as neat as it might appear. Many people already buy and own guns illegally without license or registration. Adding the cost of insurance would further discourage honest gun ownership. That would make matters worse not better. And is it so obvious that all guns are harmful to others and that gun ownership should be made more expensive to every owner?
Point taken, but we know there are folks on the road who don't have liability insurance. It's part of the landscape, but it doesn't mean doing this is a bad idea. It was a bit like Mr. Wayne LaPierre at the Senate Hearing yesterday saying background checks wouldn't do anything, so we shouldn't do them. Wonder what he would think about requiring liability insurance to be purchased.

Also, if you didn't see this Daily Show segment about how hard it is for the ATF to do it's job, a job Mr. LaPierre said it should be doing, you're missing out.


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Saturday, January 26, 2013

The Changing Nature of War?

This from Dexter Filkins writing in the New Yorker about the revocation of the U.S. military's ban on women in combat irked me:
Notions of equality aside, the real factor that rendered the “non-combat” distinction meaningless was the changing nature of the wars. In an old-style conflict like, say, the Second World War, big, uniformed armies squared off against other big, uniformed armies. In a war like that, driving a truck in a supply convoy, or briefing reporters on the days’ events, could be deemed relatively safe. As long as you were behind the lines, your chances of getting killed were small. But in Iraq and Afghanistan there are no front lines. Or, as the troops on the ground say, the front line is where you are.
Filkins is write that insurgencies are messy and are largely fought without front lines in the way we often imagine European-style warfare in the nineteenth and twentieth centuries.  But insurgencies are not new and that the United States has faced two in the last twelve years is hardly reflective of the changing nature of war.  

Don't misunderstand me: Filkins' point that the distinction between combat and non-combat jobs--and the supposed protection this distinction afforded female servicemembers--was fairly meaningless in Iraq and Afghanistan is not lost on me.  But Filkins wrongly locates the cause of the distinction's meaninglessness in a non-existent paradigm shift in the nature of warfare itself.  It is not warfare that has changed but the composition of the U.S. armed forces.  Even in Filkins' imagined World War II, women driving supply convoys  would be frequent targets of attack.  Airborne interdiction played a prominent role in World War II.  In North Africa and the Italian campaign, for example, the U.S. Army Air Corps attacked supply depots, ports, and even the ferries traveling over the Messina Straits.  Had women soldiers been used by Axis forces to pilot those ferries or load or unload materiel at ports, then female soldiers would have been killed there.