Antonin Scalia Professor, Harvard Law School

Category: Uncategorized (Page 8 of 25)

Thought for the Day: From Gray’s “Ode on the Pleasure Arising from Vicissitude“:

Smiles on past misfortune’s brow

  Soft reflection’s hand can trace,

And o’er the cheek of sorrow throw

  A melancholy grace;

While hope prolongs our happier hour,

Or deepest shades, that dimly lour

And blacken round our weary way,

Gilds with a gleam of distant day.

Where is the Outcry, Part II: I recently sent a second email to the list (see post below), and decided to post that as well.

By some coincidence, I received [the initial] email asking “where is the outcry?” not long after reading about the ongoing genocide in Sudan. Human Rights Watch summarizes the conflict as follows:

The government of Sudan is responsible for “ethnic cleansing” and crimes against humanity in Darfur, one of the world’s poorest and most inaccessible regions, on Sudan’s western border with Chad.  The Sudanese government and the Arab “Janjaweed” militias it arms and supports have committed numerous attacks on the civilian populations of the African Fur, Masalit and Zaghawa ethnic groups.  Government forces oversaw and directly participated in massacres, summary executions of civilians-including women and children—burnings of towns and villages, and the forcible depopulation of wide swathes of land long inhabited by the Fur, Masalit and Zaghawa….

The government and its Janjaweed allies have killed thousands of Fur, Masalit, and Zaghawa– often in cold blood, raped women, and destroyed villages, food stocks and other supplies essential to the civilian population.  They have driven more than one million civilians, mostly farmers, into camps and settlements in Darfur where they live on the very edge of survival, hostage to Janjaweed abuses.  More than 110,000 others have fled to neighbouring Chad but the vast majority of war victims remain trapped in Darfur.

The stories of some of these 1 million refugees are told by the L.A. Times (linked here):

GOUNGOUR, On the Chad-Sudan border — Barefoot and half-naked, Hamesa Adam carried two sons on her back for six days across the searing Sudanese desert. Two other children, missing their dead father, walked barefoot, and two more rode a donkey.

But 6-year-old Mohammed, one of the children on the donkey, got weaker and weaker.

He cried constantly, clutching at his side. There was not enough food. On the fourth day, Mohammed struggled off the donkey and fell onto the sand.

They buried him nearby, about 2 feet down, placing branches on the grave to keep animals from digging up his body.

According to Doctors Without Borders, more than 20 percent of children under 5 in Darfur are already suffering from malnutrition, and about 5 percent had already died in the last three months. (“These levels of mortality are well in excess of death rates defined as an emergency.”) The U.S. Department of State believes that between 15,000 and 30,000 civilians have already been killed in the conflict, and that “hundreds of thousands” are in “imminent danger.” If the 30,000 figure is accurate, that would be several times the highest estimates for the number of civilian casualties in Iraq, and more than 10 times the number of Palestinians (civilian or otherwise) who have died in the second intifada. (Additionally, although both the perpetrators and victims in Darfur happen to be Muslim, the conflict isn’t free of religious motives: those killed belong to a different denomination of Islam than the militias, and according to Human Rights Watch, the militias “have destroyed mosques, killed Muslim religious leaders, and desecrated Qorans belonging to their enemies.”)

Now, in mentioning all this, I’m hardly making the argument that because there’s currently ethnic cleansing in Sudan, we can’t be outraged by suffering elsewhere. (That would be akin to the bizarre argument against intervening in Iraq, that “there are many other countries with human rights violations.” I can see how this might be a reason why one isn’t obliged to intervene everywhere, but I can’t see how that would be a reason why one shouldn’t intervene anywhere.)

And I’m certainly not making the appalling argument that “Well, some Arabs got their houses torn down, but some other Arabs burnt somebody’s village, so it all balances out in the end.” What I’m trying to ask is why Sudan hasn’t attracted the kind of outcry that other causes have received. We have, RIGHT NOW, a genocidal conflict going on that has already claimed tens of thousands of lives (and may claim hundreds of thousands more, if the refugees cannot receive food and medicine). We have a war, RIGHT NOW, that seems to be fulfilling all the worst fears of those who opposed the war in Iraq: targeted at civilians, motivated by ethnic and religious hatred, blatantly directed at the murder of Muslims. Why, then, have those concerned for peace not adopted Darfur as their central cause? Where are the protests in New York and Geneva at Sudan’s reelection to the Human Rights Commission? Why have the street corners of Oxford, which have blossomed with political posters in the last two years, not been covered by stickers calling for peace in Darfur? Some of my friends here marched in London last year; of the millions who marched worldwide to protest the war in Iraq, do you know a single person who has marched to stop the killing in Darfur? Where are the international coalitions to “stop war and end racism” now that a racist war is being prosecuted under our very noses?

I’m not trying to accuse anyone of hypocrisy; I know that many of those who called for peace last year did so out of sincere conviction. (Moreover, I haven’t marched for Sudan either; I’ve written my congressman, but that’s about it.) What I’m trying to ask, and what [the initial] subject line made me consider, is why the global movements that emerged during the buildup to the Iraq war have been so comparatively quiet when faced with a war whose motives and consequences are undeniably more terrible. To my mind, it’s hard to avoid the suspicion that the movements’ attention is simply not engaged by violence that fails to fit a certain profile, that can’t be told in a familiar anti-colonial narrative; that if innocent people are being murdered, the identity of the perpetrators is the most significant factor in whether it will be opposed. But don’t the lives of the victims–Muslim lives, African lives, human lives in general–deserve protection in their own right? Why have the movements, which last year championed the wretched of the earth, here responded with silence?

“Where is the Outcry?” I recently received an email over a mailing list with a link to this BBC report, under the subject heading “Where is the Outcry?” The report described the destruction of houses in the town of Rafah, Gaza, by the Israeli military.

A few hours later, I made the following comments over the list, which I’ve decided to re-post:

If you want a cynical, non-justificatory answer, I’d say that most people react to stories like this by immediately filing them under the “More Violence in Middle East” category, and don’t pay them any more attention. People tend to get desensitized to long-running violence, even if that’s a horrible way to respond to suffering.

A somewhat more sophisticated answer would be that it’s hard to know how to feel about a story like this without knowing all the facts. I think destroying houses is generally awful, mainly because I don’t see how the destruction of the house per se can be of military necessity. To me, something like this smacks of collective punishment, intended to make others pay for the wrong actions of a few.

However, suppose for the moment that the Israeli army is right in claiming that the houses it destroyed had been used to hide illicit weapons tunnels–not an uncommon thing, unfortunately, on the Egyptian border–or as safe houses for gunmen. The case might then be different, and the army might have a legitimate reason to want to clear the area, either to prevent the tunnels’ operation or to deny the militants shelter. Provisionally, the army would then have an obligation to give the civilian inhabitants somewhere else to live. However, if the tunnel or the gunmen had been operating with the inhabitants’ knowledge and consent–how many of us would notice weapons being smuggled up from the basement?–this might complicate their status as non-combatants. (If I willingly quarter combatants in my house, can I claim non-combatant status when my house is fired upon?) The distinction is even further muddied by the fact that this is a conflict in which all the hallmarks of organized armies–clear military hierarchy, uniforms and insignia visible at a distance, carrying arms openly, conducting military operations in accordance with the laws and customs of war–are notably absent.

Now, I don’t carry any water for the Israeli army, and I have no idea whether its factual claims are true. (The Israeli Supreme Court, in rejecting petitions on Sunday from residents of Block O of Rafah, had required that any destructions of homes take place only in the circumstances described above, but there’s no easy way of knowing whether that decision was followed.) But I do think it’s important to note that even in what could be seen as a clear-cut case of collective punishment, there can still be the possibility of legitimate motives for the military’s actions. In a conflict where at least one party attempts to blend into the civilian population, civilians will be inevitably drawn in, either by simple error or by the explicit design of those who use them as human shields. In such a context, everything seems to depend on the exact fact pattern surrounding the house’s destruction. (It’s notable in this context that the BBC reporter didn’t see the area firsthand–admittedly, due to Israeli restrictions–but rather spoke to Mrs. Abu Libdeh via cell phone.) I think it’s perfectly possible for someone who shares your moral concern for the destruction of innocent people’s houses to feel unready to join the outcry–to be inclined to reserve judgment, until they feel they have a better grasp of the facts.

(To me, these issues also point to a deep and pressing question in the ethics of conflict — how may an organized military act when facing a party that does not respect the laws of war (especially the division between soldiers and non-combatants)? Can we develop a “non-ideal theory” of warfare? The laws of war, as they currently stand, seem unprepared for their own routine violation. The doctrines stick to the easy stuff, condemning both sides equally — the party who hides arms in a place of worship, and the party who raids the place of worship in response; the party who takes cover among civilians, and the party who fires on the crowd. But although this all-around condemnation may be satisfying, and assure us of clean hands, it doesn’t seem to give us any tools for describing how we should proceed, should we find ourselves in the middle of this conflict, and should surrender not be a moral option. Do we just accept Thomas Nagel’s argument in “War and Massacre,” that there are some situations in which both choices are morally prohibited? Or do we draw up new rules that distinguish between different kinds of civilians, and that take account of our opponents’ responsibility for their own immoral actions?)

Catastrophic Terrorism and the International System: In the course of studying for Oxford final exams, I’ve chosen to post another essay from my International Relations tutorial. (Links to earlier IR essays can be found here and here.) This essay looks at the changing nature of global terrorism, and argues that threatened states will have strong reasons to act unilaterally and preventively rather than through established multilateral mechanisms. From the introduction:

The terrorist attacks of Sept. 11, 2001, demonstrated the need for a complete reassessment of the existing threats to international security. Writing shortly after Sept. 11, Seyla Benhabib suggested two “unprecedented aspects of our current condition”: first, “the emergence of non-state agents capable of waging destruction at a level hitherto thought to be only the province of states,” and second, “the emergence of a supranational ideological vision with an undefinable moral and political content, which can hardly be satisfied by ordinary political tactics and negotiations.” To which one could perhaps add a third: the growing potential for catastrophic violence to be inflicted instantaneously in the course of a single operation, such as through the use of weapons of mass destruction.

The combination of these three factors poses a new kind of security threat to nations such as the United States, one perhaps more severe than any to which those nations are accustomed. Yet the possibility of catastrophic terrorism also threatens the nature of the international order, giving states which are the targets of terrorism strong incentives to act outside current norms of the international system. Proposals to address terrorism through globally accepted means, such as a strengthened international law-enforcement framework or aid targeted to the “root causes” of terror, are either unlikely to succeed in the short term or unlikely to be accepted by states under threat. As a result, the potential for unilateral military action in contravention of previous norms on the use of force has greatly increased. Unless the international community is willing to revise those norms to give greater latitude to counterterrorist efforts, one can expect greater frictions within the international community to be a further consequence of the new kind of terrorism.

You can read the rest here.

The Fetishization of Rules: Finally, someone who understands. This customer-service debacle happened to take place with Orange Mobile, but it could have been any firm in England. One of the first things I learned after arriving here is that English bureaucrats, whether in public or private employment, would rather spend twice as much time (and lose twice as much money) inventing justifications for the existing rules than crafting new ones. Cory Doctorow documents the fetish:

At the end of the day, it came to this: These are our rules. We will stick to them. We will not make exceptions to them. We will hug them to our bosom beyond any kind of rationality or reason.

I am such a goddamned telephone junkie. I’m no Joi Ito with his $3,500 GPRS bills, but I’ve been spending $200 or $300 on cellular telephone damned near every month since 1992. I am every mobile carrier’s dream. Any rational carrier would jump at my business.

But Orange isn’t rational. It doesn’t have a business plan, it has a bunch of superstitions to which it rigidly hews regardless of circumstance . . . .

My econ classes got it all wrong. Firms here don’t seek to maximize profits; they seek to minimize employee effort.

UPDATE: A friend passes along an Economist article that confirms the stereotype:

A team led by Chris Voss of the London Business School found that service quality in Britain is typically worse than in America. One reason, the research suggests, is that British customers complain less about bad service than hard-to-please Americans do.



The result, Mr Voss finds, is that Brits suffer. But so do companies in Britain’s service industries: they do not receive so much unsolicited feedback, and thus lose a chance to improve service quality. Indeed, they may spend more than they need to do on service-quality improvements, because they do not get direct help from customers.

On a Lighter Note: Steve Wu notes the power of exam proctors, as described by our groundbreaking serialized graphic novel, Herbert the Walrus. Of course, now that I’m studying for finals myself, I can’t help but remember the exams Herbert faced… (Modified for width — click here for the original version.)

For Their Sake and Ours: From a commenter on AndrewSullivan.com:

Imagine the next terrorist attack. Suppose nuclear devices are set off simultaneously in New York, Washington, and Los Angeles. Suppose not 3000 dead but 300000 dead. What do you think the American people will demand of our President then? My greatest fear is that we will become genocidal. The cry will be to kill them all. As much as we are there to protect the US against the Arab Muslims, we are also there to protect the Arabs from the US. It is one thing for Bin Laden to issue a fatwah to kill all the Americans. He does not have the capability to do it. It is something else entirely for the US to decide to kill all the Arabs. We have the capability. We are closer than everyone thinks to this day. For their sake and ours, we must stay and prevail.

I don’t think we are, in fact, close to that day. But when I read the news about Iraq now, when I read how we’ve squandered some of our moral credibility at Abu Ghraib, when I read how modern science has simplified the task of killing civilians with radiation, when I read how suicide bombing has become for some groups a standard tool of domestic politics — I worry, not only for American lives, but for the survival of American values. As I wrote to a friend in February 2003:

I think this is our generation’s equivalent of the Cold War threat of World War III, when our parents had to put their head under the desk at school; it’s hard to see how any other issue matters much in comparison. If there were a major WMD attack on American soil, much of what we value about our society — its openness, its adventurousness, its prosperity, its commitment to civil liberties — might disappear. A terrorist attack on a sufficient scale, or a series of smaller attacks, would turn this country into an armed camp. And how tolerant of other cultures or other countries’ positions, and how willing to pour our treasures into fighting poverty or the AIDS epidemic, would we be then?



I also think this is why the left, in a fundamental way, is out of touch with people’s concerns. I recently came across an article written by Susan George in The Nation about a year ago . . . . What struck me most was this quote: “The adversary hasn’t changed since September 11. That adversary is still ‘Davos’ and everything Davos stands for, whether meeting in the mountains or on the banks of the Hudson. Homo davosiensis wants all the resources, all the wealth, all the power and all the freedom to extend his ascendancy across time and space.”

As I wrote then, I just can’t see the enemy as the man from Davos. However much one desires to reduce global poverty in the long term, the adversaries in the short and medium-term are Osama bin Laden, those eager to follow his model, and those willing to supply or support them. And I don’t see an easier way to counter the bin Ladens of the world than to redirect the energy that’s now going towards terrorism and deadly weapons, to work to create a democratic order where individuals can find dignity outside of martyrdom.

Those who truly care about the former cause must commit themselves to achieving success in the latter. But we don’t have much time left. For their sake and ours.

Apologies for the late post: I was away from my computer most of yesterday. In other news, despite a valiant effort, the Merton 6 team was defeated by Keble 1 yesterday in the 2004 Oxford University Croquet Cuppers tournament. Although their tournament run is now over, they will be performing in exhibition games throughout the summer…

« Older posts Newer posts »

© 2025 Stephen E. Sachs

Theme by Anders NorenUp ↑