The Weekly 10 #8 (and some stuff on the War on Terror)

It’s back: get your blue tops/red-tops/yellow-tops/green-tops/WMD here.

1) Wu-Tang Clan – Can It All Be So Simple (from The 36 Chambers)
Has to be one of the best WTC songs of all time, which consequently puts it as one of the greatest raps songs of all time. What you get here is really a two-for-one special: the first half are verses by Raekwon and Ghostface Killah, two of the best MCs in the group; the second half is Ghost and Method Man introducing all the members and explaining their aliases. In other words: a song about origins.

2) The Magnetic Fields – Washington DC (from 69 Love Songs)
Lyrically, a tin-pan alley styled song. I would say that this song is cheesy if it weren’t for the blatant irony. Also because I am going to DC next year.

3) John Adams – Landing of the Spirit of ’76 (from Nixon in China)
This orchestral piece is part of a much longer opera about Nixon’s historic visit to China. Chose it because of current political events surrounding China. Highly recommended that you check out the entire opera.

4) R.E.M. – I’m Gonna DJ (from Accelerate)
Don’t call it a comeback! So sayeth LL Cool J. Not their best stuff, but surely better than their last three records. Short, to the point, simple chords, played loud and fast. Completely arena-rock, totally can imagine a stadium of people singing along, jumping up and down. Not sure if it’s an act of celebration of life from a middle-aged band. Or if it’s an act of desperation and refusing to deal with reality.

5) Bruce Springsteen – Girls in Their Summer Clothes (from Magic)
Another arena-rock song from an arena-rock warhorse. Chose it because of the hot weather the last couple of days, which saw a lot of girls in summer dresses. Also, not sure if The Boss is playing his old nostalgia trick again: either he’s lamenting a state of affairs in America The Innocent, or he’s just singing about shit that never existed to begin with. But again, the epic scope of its quaintness sort of makes the discussion irrelevant.

6) Nick Cave – Albert Goes West (from Dig, Lazarus, Dig!!!)
Pushing 60 and still making jokes about pussy ( Henry, he went south and lost his way deep in the weeping forests of Le Vulva). I have no idea what this song is about: is it some kind of metaphor for a quest, or just non-sense. But the guitar is loud, and there’s even back vocals of “woo-woo.” What more do you want?

7) George Benson – Shape of Things That Are and Were (from The Shape of Things to Come)
Before George Benson made wedding songs, he was actually a pretty decent jazz guitarist. Who’d thought? The bongos and the horns give this a Latin tinge mixed with soul/r&b.

8) Chet Baker – How Deep is the Ocean (from Chet’s Choice)
This is a piece from late in his career, and there is nothing in the song itself that suggests that it’s special, or that it occupies some special canonical position. I rather enjoy the song precisely because of Chet’s tone, which is inimitable.

9) Philip Glass – Symphony No. 3, Third Movement (from Symphony No. 3)
Some people knock Glass, and minimalism in general, for being just primitive doodles repeated ad nauseum and sold to yuppies and petty bourgeoisie hungry for real art. And perhaps it’s even true that I am one of those yuppies and petty bourgeoisie hungry for real art. But whatever the case, I rather like this movement. So the knocks are ignored for now.

10) MONO – Mere Your Pathetique Light (from their third album, whose title I’m too lazy to bother spelling out fully)
This really doesn’t sound like a Steve Albini-produced album, which usually sounds dramatic and big, but this sounds more restrainted, even deliberatively, on purpose. More classically-oriented, more compositionally-leaning. The interaction between the violin, viola, cello, and the distorted guitar is excellent. A dichotomy and contrast between clean string-generated melodic lines and distortion-generated ones.

The War On Terror Talk

Now, onto more serious stuff. Today at Berkeley’s Institute of International Studies, Professor Allen Weiner from the Stanford Law School gave a talk titled “It’s the Law, Even in War.” The talk was essentially about how the Bush administration’s invocation of the “War on Terror” in a very real, legal sense, not rhetorically, as other invocations of war, such as the War on Drugs for example. The talk essentially examines what the legal invocation of war means, in terms of actually applying international law.

Aside from the intellectual curiosity which the topic excited in me, the other primary reason I attended the lecture was the promise of free lunch. I was not disappointed: wraps were provided, and they were decent.

From my notes, the talk essentially consisted of the following, which I shall try to break down in the most sensible way I can.

I. Invocation of War in the Legal Sense and Its Implications

  • Unlike previous “wars” which have been part of our political rhetoric, the Bush Administration speak of the War on Terror in a very concrete, explicit legal sense. In using the term War on Terror in a legal sense, the Administration is essentially calling upon international law governing war in order to justify certain actions
  • Examples of Actions:
    • Use of armed force
    • Killing of individual soldiers (Afghanistani troops) and operatives (Al Qaeda members)
    • Killing individuals outside of Afghanistan and Iraq
      • e.g., the killing of Al Qaeda operatives in Yeme and Somalia
    • Justification of detaining enemy combatants (Guantonomo)
      • Detainees are not held because of specific charges, but as a pre-emptive and preventive measure in order to remove them from any field of operation
    • Use of domestic surveillance (FISA)
  • None of these actions would be justifiable if the administration did not explicitly treat the War on Terror as an actual war in international law.

II. Is the War on Terror an Actual War under International Law?

  • Positivist View: no, because according to the letters of international law, war is defined as an armed conflict between nations. Clearly, Al Qaeda and terrorist groups do not constitute a nation; ergo, no war.
  • Functionalist View (one taken by the Bush Administration): yes, the War on Terror is war under international law, because of certain structural similarities
    • Capacity: Al Qaeda, as demonstrated by 9/11, has the capacity to inflict harm on the United States; in this regard, it holds similar capacities as regular state actors.
    • Party-Like: Al Qaeda is well-organized and highly structured
      • Principal-agency: Individual operatives are acting as the agents of commanders. Thus, they can be treated analogously like soldiers who are commanded by nations
    • Ideological: Al Qaeda’s objectives are distinctly political, as opposed to economical or religious, which is analogous to ideological objectives held by nation states
    • Last-resort: America has used all non-violent diplomatic options, at far as Afghanistan was concerned.

III. Not the End of Inquiry, Part I

  • Passing the prima facie test: The Bush Administration’s functionalist views seem to pass the prima facie test, but in reality, its logic is highly inconsistent
    • Source of inconsistency: In justifying its own powers, the Administration takes the much more expansive functionalist view. But in claiming what it owes to enemy combatants, the Administration takes the much more restricted positivist view.
  • Examples of Inconsistency
    • The scope of targets: the Administration has explicitly stated that the War on Terror does not only target Al Qaeda, but all terrorist groups, thus giving it a very expansive scope of targets
      • Inconsistency: International laws governing war has a much more restricted scope on who the targets are.
    • Rights of detainees: the Administration argues that detainees held at Guantonomo cannot claim rights-protection because they are not prisoners of war, since they are not part of a nation
      • Inconsistency: If this is the case, then continued military operations in Afghanistan is also impermissible, because we are no longer fighting a state actor, but terrorist groups
    • Status of detainees: the Administration claims that detainees captured during the Afghanistan operation are operatives of global terrorism
      • Inconsistency: the operation in Afghanistan has changed–it is no longer an armed conflict against another state, but a military operation against non-state actors. Therefore, the detainees captured during the Afghanistan operation should have been released or chaged
    • Issue of reciprocity: the Administration has charged individual operatives with the killing of American soldiers during course of combat
      • Inconsistency: International law states that once war is underway, combatants on both sides are to be treated as moral equals. Thus, there is no criminal charge against one combatant killing another in the course of war. However, the Administration does not recognize reciprocity.

IV. Not the End of Inquiry, Part 2

  • Room for Exception within the Geneva Convention?
    • Common Article 3 allows for some form of non-international conflict
    • Traditionally, this has been interpreted to mean things like intra-national conflicts, such as civil wars.
  • Supreme Court case law:
    • In Hamdan vs. Rumsfeld, the Supreme Court ruled that detainees at Guantonomo were protected under the Geneva Convention–thus, the rejection of secret military tribunals
      • Not as rosy as it sounds: although the ruling of the Hamdan case seems to suggest that the Court is protecting the rights of detainees, it might end up legitimating the War on Terror as an actual war under international law.
  • The Interpretation of Common Article 3
    • The Court interpreted “non-international” not as most international lawyers have done, that is, treat it as civil war.
      • Rather, “non-international” is taken to mean conflict not between nations, which is a very literal, if somewhat counter-intuitive way of reading it. Under this interpretation, the War on Terror is an instance of “non-international” conflict since it is technically not between nations, which is what “international” literally means–between nations
    • However, this could potentially mean that the War on Terror is treated as an actual war under international law, albeit in this strange kind of fashion.
      • Thus, even if the ruling of Hamdan came out against the Administration, it might have ultimately legitimized the Administration’s claim that the War on Terror is a legal war under international law

V. Toward a Checks-and-Balances System

  • Having possibly legitimized the Administration’s claim to a legal war in Hamdan, it is now up to the Judiciary to delineate and clarify war powers.
    • Uphill battle: traditionally, the courts have hesitated to delineate executive powers out of judicial deference
  • A check on the unitary executive:
    • If the courts do not further clarify executive war powers that can be used in the War on Terror, the executive branch essentially goes unchecked
    • Legal questions: the courts must answer a series of questions in this untraditional war
      • With what “powers” is the United States at war with? The courts must specify the targets
      • What is the sufficient degree of connection between an individual and a “power” before he can be prosecuted?
        • For example, is it enough to prosecute him for merely being a member, or must he meet some further threshold?
      • Where the war powers are exercised?
      • How long the war will last
        • This entails questions about how this war can be ended, since traditional ways of ending a war, such as cease-fires and peace treaties, are not likely with terrorist groups
  • The unprecedented nature of the War on Terror calls upon an exercise of checks-and-balances, or else it leaves too much power in the hands of the executive.

VI. Personal Comments
Now, those are my notes on what Prof. Weiner has said: I tried to be as faithful to his words as I could, but it goes without saying that this is not an objective/factual account, but merely what I took him to be saying.

As for my personal thoughts, I felt he did a good job describing why the War on Terror poses so many legal problems due to its unprecedented nature. I felt that claim was backed up by a lot of examples in which the invocation of international law was inconsistent with the actual letters of international law. And this is inevitably the case, in my opinion, when one tries to apply existing laws to deal with an unprecedented situation in which existing laws were clearly not designed to do (I might have more to say on this in regards to Carl Schmitt, but that is for another day and time). Therefore, at this crucial juncture in which all the rules, laws, and norms are still being tested and formulated, it is absolutely paramount that a variety of actors, such as legislators, judges, citizens, other nations, international organizations, etc., participate in this formation-process in order to create a set of rules and norms that are viewed as legitimate and credible.

Part of the problem, at least so it looks to me, with the Administration’s invocation of war in the legal sense, is precisely that it was done so unilaterally. All one has to do is to read John Yoo’s memos to realize that the Administration was only concerned about itself, not other actors. Thus, I find Prof. Weiner’s normative conclusions compelling, because it is simply bad policy to leave the formation of important laws like these in the hands of only one governmental branch and only one relevant actor among the possible many. If the War on Terror is to have any legitimacy at all, it has to be governed by rules and norms that are viewed as legitimate.

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