Grasping Reality with Both Hands: The Semi-Daily Journal Economist Brad DeLong

What Does John Yoo Believe?

A correspondent sends me to a 2000 article by Yoo, "The Imperial President Abroad", an article that opens:

Aside from getting himself impeached, President Clinton's most signal impact on the Constitution, and the rule of law it embraces, will have been in the area of foreign affairs. As his domestic agenda met with frustration in a Republican Congress, President Clinton exercised the powers of the imperial presidency to the utomost in the area in which those powers are already at their height--in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated disturbing trends in foreign policy that undermine democratic accountability and respect for the rule of law...

That's a hell of an opening paragraph from someone who was, less than three years later, to say that the president has the power to order the torture and maiming of prisoners no matter what laws congress may have passed or treaties the United States has signed.

What does Yoo mean by saying that Clinton has "undermine[d] democratic accountability and respect for the rule of law? He turns out to mean:

• "The Clinton administration's use of the military in several long-term interventions has rendered the War Powers Resolution a dead letter.... [Its failure to obtain] affirmative congressional authorization for its conduct... is still open to constitutional question..."
• "The administration has used troops... not to achieve total victory or to contain the spread of Soviet influence but in order to achieve more limited goals... whose long-term benefits for American security are unclear..."
• "In Kosovo... American troops... serve[d] under... non-American... commanders, such as British General Michael Jackson.... [This] threatens that basic principle of government accountability. International or foreign officials have no obligation to pursue American policy, nor do they take an oath to uphold the Constitution..."

The only way I can find to reconcile these arguments with those of the Torture Memo is to conclude that Yoo truly believes nothing at all.

Can anybody help me here? For the president's commander-in-chief power to extend to the ordering of torturing and maiming against natural law, solemn treaty, and congressional enactment but not to extend to placing U.S. troops under NATO command?...

Does anyone understand how Yoo can pass the Turing test here?

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People have been asking "what is Youngstown?" as it more and more becomes the pivot around which lawyers' discussions of the matter of John Yoo's Torture Memo wheel. For example, Boalt Hall graduate "Ugh" writes in:

Grasping Reality with Both Hands: The Semi-Daily Journal Economist Brad DeLong: And John Yoo clearly knows about the Youngstown case, he taught it to me in Con Law I in the spring of 2000. Strangely, he somehow omitted his theory of POTUS as King that semester, as if, somehow, he might not have believed it. Huh.

Youngstown is the Korean War steel seizure case: Youngstown Sheet & Tube Co. v. Sawyer. During the Korean War President Harry S Truman seized the steel mills to keep them running. The Supreme Court said that he could not do that: it limited the power of the President of the United States to seize private property in the absence of either specifically enumerated authority under Article Two of the United States Constitution or statutory authority conferred on him by Congress.

Steel company attorney John W. Davis closed his oral argument before the Supreme Court with Thomas Jefferson: "In questions of power let no more be said of confidence in man but bind him down from mischief by the chains of the Constitution." The Court voted by six to three to affirm the District Court's injunction barring the President from seizing the steel plants.

The plurality opinion by Justice Hugo Black held that the president had no power to act without congressional or constitutional authorization. Robert H. Jackson's concurrence was less absolutist, and divided the constitutional issues into three cases--(1) presidential action in accord with express or implied authority from Congress, (2) presidential action in the face of congressional silence, and (3) presidential action in defiance of congressional legislation--classified Youngstown as category 3 in which presidential powers were at their "lowest ebb," and so disallowed Truman's action.

Since then the Supreme Court has expressly cited Youngstown and the Jackson classification as authority for its decisions invalidating Nixon's warrantless wiretaps, permitting litigation against thep to proceed in Clinton v. Jones, limiting the power of the president to intervene in state judicial process in Medellín v. Texas, and in Hamdan v. Rumsfeld.

Youngstown is good law, and bears heavily upon the issues of John Yoo's Torture Memo. Yoo did not fulfill his duty to his clients or to the law in ignoring it in the Torture Memo--at the very least he had a duty to explain his (erroneous) implicit claim that the principles of Youngstown did not apply because the situation here was in some way distinguished from the situation there.

Hoisted from Comments: John Yoo as a Sportswriter Who Did Not Mention the Red Sox

Hoisted from Comments: Rea says:

Grasping Reality with Both Hands: The Semi-Daily Journal Economist Brad DeLong: "Leitner's analysis is that Yoo did nothing wrong because he was acting in "good faith", like a tax adviser who gives incorrect advice."

Problem is, Yoo, ignored the Youngstown case in formulating his advice. The Youngstown case, as anyone with the slightest passing familiarity with constitutional law knows, ought to be the very first case anyone looks at when considering the extent of the President's powere as Commander in Chief of the armed forces. That sort of mistake can't happen in good faith. If he'd written up an argument that Youngstown was inapplicable, or wrongly decided, he might be able to make a plausible claim of good faith, but not even to mention it?

What would you make of a sportswriter who did a preseason analysis of the 2008 baseball season, and didn't mention the Red Sox? Not, predicted they wouldn't do well, but simply didn't mention them?

Jack Balkin on John Yoo

Jack Balkin on the highly-trained legal mind of John Yoo:

Balkinization: Note the switch. Instead of saying that the defense of following orders is generally unavailable, the defense is now described as generally permissible. And instead of a limited defense in cases where the subordinate did not know and did not have reason to know of the unlawful nature of the order, the defense becomes much broader. The act is generally privileged unless the illegality of the order is patent.

What difference does this formulation make? Put the first set of arguments about Presidential power together with the second. You are a subordinate asked to torture a subject. Do you know that this order is patently unlawful? No, you do not, because of the memo's first argument. The first argument claims that in order to avoid constitutional conflicts, all laws restricting the President's power to interrogate subjects should be construed not to apply to the President. Since the President is ordering you to torture someone, you may-- indeed, you must-- presume that this order does not violate any existing law when properly construed so as to avoid a constitutional conflict. Hence you can torture the suspect with a clear conscience.

Clearly it takes a highly trained legal mind to reach conclusions like these.

There is more in this memo worth discussing, but the import should by now be clear. The stench of corruption permeates the pages of this report. Legal minds, blinded by ideology, and seduced by power, have willingly done the Administration's dirtiest work-- apologizing for torture and justifying violations of the most basic human rights. They have mangled the law and distorted the Constitution, manipulating legal sources to maximize power and minimize accountability. It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer.

James Poulos Fears the Black Helicopters

He does not want to see Fareed Zakaria ascend to the Secretary-Generalship:

James Poulos » Deconstructing Globalization: The United States has already succeeded in globalizing the world — by globalizing American culture. What Zakaria wants, I think, is for the United States to succeed at the new task of globalizing itself.... Not a single proponent of globalizing America is against maximizing migrant labor among the lower classes and maximizing math and science among the upper classes. My distaste for migrant labor and the hegemony of engineers, each taken separately, is already almost incalculable because of my judgments about what ruins a healthy republic. Taken together, these two great prescriptions for globalizing America fill me with something I must quickly laugh off as paranoid rage.

Everywhere I turn some bold-faced name is guzzling this kool-aid.... I’m content for America to continue in its capacity as globalizer. I’m much less sanguine about America becoming a globalizee. This isn’t just because I’m a nationalist; it’s because I’m convinced that the United States has, and depends upon, a globally unique system of government which is itself dependent upon America’s unique geopolitical, cultural, and religious heritage. The maintenance of that heritage demands a conscious effort not to regularize the American workforce into a system of migrant drones at the bottom and civil engineers at the top....

Probably the most grievous error of the pro-globalization crowd is its intransigent comprehensiveness fetish: globalizing America hasn’t meant making foreign countries ‘more like the US’ in some kind of holistic, across-the-board fashion; it’s meant exporting the things about America that work, that can travel, that are fungible and useful and beneficial in different cultural contexts. (Yes, this is an incomplete and too-happy picture of what’s happened. But I’m identifying the good so I can contrast it better with the bad.) Globalization, in its natural, uncontrolled diversity, will be and should be an irregular process in which countries pragmatically adopt and appropriate a la carte things from elsewhere that work for them...

The Torture Memo and Academic Freedom

I'm going to try to move the discussion of Professor John Yoo's Torture Memo over here: The Torture Memo http://delong.typepad.com/the_torture_memo/.

Anybody who wants posting privileges at "The Torture Memo," drop me a line at brad.delong@gmail.com...

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So I sent off my letter (http://www.j-bradford-delong.net/2008_pdf/20080506_yoo.pdf) to William Drummond, in his capacity as Chair of the Berkeley Division of the Academic Senate of the University of California.

Any Berkeley community members who want to sign on, drop me a note at brad.delong@gmail.com, and I'll put you on the list...

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UNIVERSITY OF CALIFORNIA, BERKELEY

PROFESSOR J. BRADFORD DELONG
DEPARTMENT OF ECONOMICS, UNIVERSITY OF CALIFORNIA AT BERKELEY
BERKELEY, CALIFORNIA 94720-3880

RESEARCH ASSOCIATE, NATIONAL BUREAU OF ECONOMIC RESEARCH

EMAIL: delong@econ.berkeley.edu

TEL: 510-643-4027; FAX: 510-642-6615

May 6, 2008

Professor William Drummond
Chair, Academic Senate, Berkeley Division
Stephens Hall
University of California

Dear Professor Drummond:

As we discussed this morning, I write this as a consequence of reading what Boalt Dean Chris Edley calls the “Torture Memo” of Professor John Yoo—which horrified me. I write to ask you to appoint a special committee to examine the matter of Professor John Yoo--the matter that Boalt Hall Dean Chris Edley has named "The Torture Memo and Academic Freedom"—the role played by John Yoo in the Bush administration’s policy of subjecting to torture not high-ranking Al Qaeda members with information about ticking bombs but low-level prisoners irrespective of their guilt or innocence or of any information suggesting their guilt or innocence.

I ask you to appoint to this special committee members of the faculty with expertise in moral philosophy, the role of the university, international relations, human rights, and constitutional law. I ask you to instruct this committee to write of a public report to the Academic Senate no later than this Labor Day, advising the Senate of the pros and cons of actions that the Academic Senate might or might not take in the matter of Professor John Yoo, including but not limited to:

(I) no action, as Professor Yoo’s actions while on leave at the Office of Legal Counsel have been misrepresented in the press and on the internet, and he has been defamed.

(II) no action, as Professor Yoo's "Torture Memo" and related work while on leave at the Office of Legal Counsel are protected under academic freedom or are otherwise not germane to his status at Berkeley.

(III) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the censure of Professor Yoo for actions while on leave at the Office of Legal Counsel that amount to one or more of:

(A) a breach of professional legal ethics, with respect to the duty that a lawyer and above all a law school teacher who educates future lawyers owes his clients to inform them truthfully and completely of the state of the law;

(B) work performed for the Office of Legal Counsel sufficiently misleading to rise to the same level in a professional school as work that violates the principles of scholarly integrity reaches elsewhere in the university;

(C) participation in a conspiracy to violate U.S and international law by torturing detainees, detainees whose guilt in the acts of or even association with Al Qaeda was not only not proven but not even likely.

(IV) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the dismissal of Professor Yoo for actions while on leave at the Office of Legal Counsel that are, et cetera.

If you have not read John Yoo’s recently-released "Torture Memo," and have not been as horrified and appalled as I am, I strongly urge you to read it in full.

However, after reading the “Torture Memo” I found myself frozen, with no firm or settled judgment as to what appropriate action is in this context. I lack sufficient knowledge of the facts. I lack sufficient expertise on the issues. Thus I want you to appoint a special committee to write a report because I am enough of a liberal and enough of an academic to believe that discussion of these issues will help.

On the one side there are the claims of academic freedom, enunciated most strongly by our own medieval historian Ernst Kantorowicz just before his resignation from the faculty in protest. He said:

There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer's maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which--under the pressure of bewildering economic coercion--he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar...

In Professor Kantorowicz's view, a Berkeley faculty member should be allowed to state whatever his or her judgment leads him to state--even if it is that the government of the United States should be overthrown by force and violence--and that no pressure or threats of any kind should be applied to discourage him from saying what he or she decides to say.

On the other side there are at least four interrelated considerations.

The first consideration is that Professor Yoo is professor at a professional school, Boalt Hall, and thus must teach and model professional behavior that will be expected of his students as lawyers. Professor Yoo failed in his Torture Memo to make any reference to the Korean War case of Youngstown, an essential part of any good-faith contemporary analysis of the war powers of the executive branch. This failure to analyze and other deficiencies in the memorandum make it, I have been told, a serious breach of professional ethics--misconduct in failing to fulfill his professional duty to provide his clients with a complete and truthful statement of the law. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is misconduct. Students learning to be lawyers need to be protected from coming to believe that it is an acceptable part of lawyering.

The second consideration is that the work product for others outside the university performed by faculty who teach at professional schools plays a role analogous to that of academic research in other branches of the university. I am informed by some that the argumentative omissions and misrepresentations in the Torture Memo and in other work by John Yoo for the Office of Legal Counsel amount to misconduct that rises to a level equivalent to that of falsifying evidence in a scholarly work. As one attorney observed, "while outside legal work isn't formally scholarship, it has its own ethical obligations." The absence of relevant Supreme Court precedent from the Torture Memo is a "failure to meet the standards of practice required by the legal profession [that] appears... close enough to a failure to abide by the standards of the scholarly profession that it can be treated as an equivalent level of scholarly misconduct."

The third consideration is that some claim that Professor Yoo was not just an advisor, informing those whom Boalt Dean Chris Edley calls the "deciders"--George W. Bush, Richard Cheney, George Tenet, and Donald Rumsfeld--his view of what the law was. Professor Yoo was an implementer. The decision had already been made to torture detainees of unknown but probably low value who there was no reason to think had any knowledge of any possible "ticking bomb." Attorneys at the CIA and the Department of Defense were protesting that this policy of routine torture was illegal: contrary to U.S. and international law and treaty, and exposed them to potential criminal sanctions. Professor Yoo was asked not to provide an opinion but to write a document to override objections to an already settled-upon course of action, making wrongful use of the opinion-issuing power the Attorney General possesses within the executive branch to silence lawyers who had correctly evaluated the legal framework--and so cramdown the torture policy by issuing what was essentially a “get out of jail free” card in the guise of an OLC opinion. This, I am informed by some, may be a crime. I am informed that the standard, under treaties that are the law of the land in the U.S., is that an act of legal advice that materially contributes to the perpetration of acts of torture and cruel, inhuman, or degrading treatment is a criminal act if the actors were at minimum reckless as to the consequences of their advice: it is necessary only that the actors have accepted that their conduct could possibly and forseeably lead to the commission of a crime, not that they have known the exact crime that was contemplated and was to be committed.

The fourth consideration is that it is a key part of our society that our lawyers in the common-law tradition have no association with torture--that it is part of their professional identity to know nothing of the rack, the thumbscrew, the strappado, induced hypothermia, and the water torture. So William Blackstone wrote centuries ago. A rack had been set up in the Tower of London by the Duke of Exeter under Henry IV, and had been used by Queen Elizabeth to torture Jesuits, and by King James I to torture conspirators in the aftermath of the Gunpowder Plot--a true ticking bomb. But, William Blackstone proudly stated, this rack had always been "an engine of state, and not of law." Some inform me that John Yoo's role in making the strappado and the water torture--which Bush administration members of the twenty-first century speak of in euphemisms as "severe interrogation methods," just as the Elizabethans of the sixteenth century would speak of taking prisoners to embrace "the Duke of Exeter's daughter"--routine bureaucratic policy is enough of a breach of professional ethics to make him unsuited to teach in a law school.

I cannot evaluate these considerations. The facts are unclear. I have no special expertise in moral philosophy, professional ethics, the role of the university, international relations, human rights, or constitutional law. I am out of my depth. But I do know that these are vitally important issues--and I firmly believe that Berkeley as an institution does itself no good service if it does not publicly address the matter of John Yoo, and does not face us with an extraordinarily sharp conflict between powerful principles.

And so I ask that this matter be referred to a committee that has the proper expertise: a committee that can properly weigh the considerations of moral philosophy, professional ethics, the role of the university, international relations, human rights, and constitutional law, and publicly set out its conclusions and our options. I do this in the classical liberal belief that argument and discussion are good, and will make us see these issues more clearly.

Sincerely yours,

J. Bradford DeLong

Professor of Economics

UPDATE: William Drummond answers:

Dear Brad,

Although you and I disagree, our talk this morning was a good one. Thank you for your thoughtful memo. Prof. Yoo has agreed to testify before a Senate committee. More details of what he did while on government service are likely to surface at that time.

The actions you urge on the Senate are therefore premature. Nevertheless, nothing I've read in the bylaws that convinces me the Senate has any standing in the matter.

If there's a showing of any illegal act or actionable breach of professional ethics, the campus administration would have the responsibility of filing a complaint.

Creating the panel you recommend to examine Prof. Yoo's conduct would be defamatory on the face of it. Besides that, there's the practical problem of finding committee members with the expertise you outline.

Yours,

Bill

I am left with a puzzle: I have little clue as to what counts as an "actionable breach of professional ethics" or as serious scholarly misconduct. Hence I want a fact-finding committee. But it seems that the creation of a committee to find facts is ipso facto defamatory, and so cannot be contemplated unless there is already "showing of any illegal act or actionable breach of professional ethics." But if there is already a "showing of any illegal act or actionable breach of professional ethics" then there is no need for a fact-finding committee...

Marty Lederman Defends John Yoo

Wow. Just wow. This is supposed to be a defense:

Balkinization: There has been a great deal of discussion in the blogosphere and the legal academy about the question of whether the OLC torture memoranda were not merely wrong, horrifying and indefensible, but actually criminal. My own view, roughly speaking, is... that criminal prosecution of the lawyers is virtually unthinkable absent evidence that one or more of them actually believed that the conduct they were blessing was, in fact, unlawful.

Such evidence of the lawyers' belief in the illegality of the conduct they approved is unlikely ever to emerge because, in some important sense, John Yoo, David Addington, et al., believed in the "correctness" of the conclusions contained in the torture memos.... I don't think John, et al., actually believed that the arguments they were making... would be adopted by many, if any, relevant legal communities. Nor do I think that the Yoo memos purported to present a "balanced" view.... I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court.... I think that John knew full well that many of the specific arguments within his memos... were simply hooey, supported by "authorities" that were at best tendentious and off-point, and at times mischaracterized in a way that can only be presumed to have been dishonest....

However, I think that Yoo, Addington and their crew... wrote the opinions as they did not in order to describe the law as it is, but instead to try to create the law as it might be (and, in their view, as it should be).... They also were aware that this law of presidential powers can only be developed in a pro-presidential direction... if Presidents and their lawyers make novel claims... and those claims are not resisted, or are even ratified....

When, if ever, such "aspirational" constitutional interpretation by executive actors is appropriate -- and whether it must be done openly, and with full candor -- are very important and difficult questions...

Methinks Fareed Zakaria Will Vote for Barack Obama

He writes:

Mccain Vs. Mccain | Print Article | Newsweek.com: On March 26, McCain gave a speech on foreign policy... the most radical idea put forward by a major candidate for the presidency in 25 years. Yet almost no one noticed... McCain proposed that the United States expel Russia from the G8.... McCain also proposed that the United States should expand the G8 by taking in India and Brazil--but pointedly excluded China from the councils of power.

We have spent months debating Barack Obama's suggestion that he might, under some circumstances, meet with Iranians and Venezuelans. It is a sign of what is wrong with the foreign-policy debate that this idea is treated as a revolution in U.S. policy while McCain's proposal has barely registered. What McCain has announced is momentous--that the United States should adopt a policy of active exclusion and hostility toward two major global powers. It would reverse a decades-old bipartisan American policy of integrating these two countries into the global order... would alienate many countries in Europe and Asia who would see it as an attempt by Washington to begin a new cold war.

I write this with sadness because I greatly admire John McCain, a man of intelligence, honor and enormous personal and political courage.... McCain has turned into a foreign-policy schizophrenic.... His speech reads like it was written by two very different people, each one given an allotment of a few paragraphs on every topic. The neoconservative vision within the speech is essentially an affirmation of ideology. Not only does it declare war on Russia and China, it places the United States in active opposition to all nondemocracies.... What would be the gain from so alienating two great powers? How would the League of Democracies fight terrorism while excluding countries like Jordan, Morocco, Egypt and Singapore? What would be the gain to the average American to lessen our influence with Saudi Arabia...?

The single most important security problem that the United States faces is securing loose nuclear materials. A terrorist group can pose an existential threat to the global order only by getting hold of such material. We also have an interest in stopping proliferation, particularly by rogue regimes like Iran and North Korea. To achieve both of these core objectives--which would make American safe and the world more secure—--need Russian cooperation. How fulsome is that likely to be if we gratuitously initiate hostilities with Moscow? Dissing dictators might make for a stirring speech, but ordinary Americans will have to live with the complications after the applause dies down.

To reorder the G8 without China would be particularly bizarre. The G8 was created to help coordinate problems of the emerging global economy....

McCain appears to think that he can magically unite the two main strands in the Republican foreign-policy establishment. But he can't.... We have watched an American president unable to choose between his ideologically driven vice president and his pragmatic secretary of State--and the result was the catastrophe of George W. Bush's first term...

Roger Lowenstein on the Subprime Blowup

Roger Lowenstein almost makes me sorry for Moody's.

First: God! What a lousy lead!

Moody's - Credit Rating - Mortgages - Investments - Subprime Mortgages: In 1996, Thomas Friedman, the New York Times columnist, remarked on “The NewsHour With Jim Lehrer” that there were two superpowers in the world — the United States and Moody’s bond-rating service — and it was sometimes unclear which was more powerful. Moody’s was then a private company that rated corporate bonds, but it was, already, spreading its wings into the exotic business of rating securities backed by pools of residential mortgages...

I find it hard to imagine how anybody could think that this is an informative way to begin an article.

The body of Lowenstein's article is pretty good:

[S]uppose the security had a rating. If it were rated triple-A by a firm like Moody’s, then the investor... wouldn’t need to know what properties were in the pool, only that the pool was triple-A — it was just as safe, in theory, as other triple-A securities. Over the last decade, Moody’s and its two principal competitors, Standard & Poor’s and Fitch, played this game to perfection — putting what amounted to gold seals on mortgage securities that investors swept up with increasing élan.... By providing the mortgage industry with an entree to Wall Street, the agencies also transformed what had been among the sleepiest corners of finance. No longer did mortgage banks have to wait 10 or 20 or 30 years to get their money back from homeowners. Now they sold their loans into securitized pools and — their capital thus replenished — wrote new loans at a much quicker pace....

But who was evaluating these securities? Who was passing judgment on the quality of the mortgages, on the equity behind them and on myriad other investment considerations? Certainly not the investors. They relied on a credit rating. Thus the agencies became the de facto watchdog over the mortgage industry....

Moody’s and S&P... they reject the notion that they should have been more vigilant. Instead, they lay the blame on the mortgage holders who turned out to be deadbeats, many of whom lied to obtain their loans.... Moody’s recently was willing to walk me through an actual mortgage-backed security step by step. I was led down a carpeted hallway to a well-appointed conference room to meet with three specialists in mortgage-backed paper... the case they showed me, which they masked with the name “Subprime XYZ,” was a pool of.... All the mortgages in the pool were subprime.... In an earlier era, such people would have been restricted from borrowing more than 75 percent or so of the value of their homes, but during the great bubble, no such limits applied.

Moody’s did not have access to the individual loan files, much less did it communicate with the borrowers or try to verify the information they provided.... “We aren’t loan officers,” Claire Robinson, a 20-year veteran who is in charge of asset-backed finance for Moody’s, told me. “Our expertise is as statisticians on an aggregate basis. We want to know, of 1,000 individuals, based on historical performance, what percent will pay their loans?” The loans in Subprime XYZ were issued in early spring 2006.... The investment bank provided an enormous spreadsheet chock with data on the borrowers’ credit histories and much else that might, at very least, have given Moody’s pause. Three-quarters of the borrowers had adjustable-rate mortgages, or ARMs... 43 percent... did not provide written verification of their incomes... 12 percent of the mortgages were for properties in Southern California, including a half-percent in a single ZIP code, in Riverside.... 94 percent of those borrowers with adjustable-rate loans said their mortgages were for primary residences... all of the ARM loans in the pool were first mortgages (as distinct from, say, home-equity loans). Nearly half of the borrowers, however, took out a simultaneous second loan. Most often, their two loans added up to all of their property’s presumed resale value....

[T]he Moody’s analyst had only a single day to process the credit data from the bank. The analyst wasn’t evaluating the mortgages but, rather, the bonds issued by the investment vehicle created to house them.... [T]he S.P.V. would float 12 classes of bonds, from triple-A to a lowly Ba1.... It was this segregation of payments that protected the bonds at the top of the structure and enabled Moody’s to classify them as triple-A....

However elegant its models, forecasting the behavior of 2,393 mortgage holders is an uncertain business. “Everyone assumed the credit agencies knew what they were doing,” says Joseph Mason, a credit expert at Drexel University.... Mortgage-backed securities like those in Subprime XYZ were not the terminus... were, in fact, building blocks for even more esoteric vehicles known as collateralized debt obligations, or C.D.O.’s.... Miscalculations that were damaging at the level of Subprime XYZ were devastating at the C.D.O. level....

When a bank proposes a rating structure on a pool of debt, the rating agency will insist on a cushion of extra capital, known as an “enhancement.” The bank inevitably lobbies for a thin cushion (the thinner the capitalization, the fatter the bank’s profits).... [I]n structured finance, the agencies face pressures that did not exist when John Moody was rating railroads. On the traditional side of the business, Moody’s has thousands of clients (virtually every corporation and municipality that sells bonds). No one of them has much clout. But in structured finance, a handful of banks return again and again, paying much bigger fees. A deal the size of XYZ can bring Moody’s $200,000 and more for complicated deals. And the banks pay only if Moody’s delivers the desired rating. Tom McGuire, the Jesuit theologian who ran Moody’s through the mid-’90s, says this arrangement is unhealthy. If Moody’s and a client bank don’t see eye to eye, the bank can either tweak the numbers or try its luck with a competitor like S.&P., a process known as “ratings shopping.”...

[T]he analyst forecast losses for XYZ at only 4.9 percent of the underlying mortgage pool. Since even the lowest-rated bonds in XYZ would be covered up to a loss level of 7.25 percent, the bonds seemed safe. XYZ now became the responsibility of a Moody’s team that monitors securities and changes the ratings if need be.... [A] sliver of folks in XYZ fell behind within 90 days of signing their papers. After six months, an alarming 6 percent of the mortgages were seriously delinquent.... By the spring of 2007, 13 percent of Subprime XYZ was delinquent — and it was worsening by the month.... Poring over the data, Moody’s discovered that the size of people’s first mortgages was no longer a good predictor of whether they would default; rather, it was the size of their first and second loans — that is, their total debt — combined... credit scores, long a mainstay of its analyses, had not proved to be a “strong predictor” of defaults this time.... Amy Tobey, leader of the team that monitored XYZ, told me, “It seems there was a shift in mentality; people are treating homes as investment assets.” Indeed. And homeowners without equity were making what economists call a rational choice; they were abandoning properties rather than make payments on them.... By early this year, when I met with Moody’s, an astonishing 27 percent of the mortgage holders in Subprime XYZ were delinquent. Losses on the pool were now estimated at 14 percent to 16 percent — three times the original estimate. Seemingly high-quality bonds rated A3 by Moody’s had been downgraded five notches to Ba2....

Many of the lower-rated bonds issued by XYZ, and by mortgage pools like it, were purchased by C.D.O.’s, the second-order mortgage vehicles, which were eager to buy lower-rated mortgage paper because it paid a higher yield.... In 2006 and 2007, the banks created more than $200 billion of C.D.O.’s backed by lower-rated mortgage paper. Moody’s assigned a different team to rate C.D.O.’s. This team knew far less about the underlying mortgages than did the committee that evaluated Subprime XYZ.... [A]gencies rate pools with assets that are perpetually shifting. They base their ratings on an extensive set of guidelines or covenants that limit the C.D.O. manager’s discretion.

Late in 2006, Moody’s rated a C.D.O. with $750 million worth of securities. The covenants, which act as a template, restricted the C.D.O. to, at most, an 80 percent exposure to subprime assets, and many other such conditions.... Moody’s rated three-quarters of this C.D.O.’s bonds triple-A.... Moody’s had underestimated the extent to which underwriting standards had weakened everywhere. When one mortgage bond failed, the odds were that others would, too. Moody’s estimated that this C.D.O. could potentially incur losses of 2 percent. It has since revised its estimate to 27 percent.... A triple-A layer of bonds has been downgraded 16 notches, all the way to B....

However, the conclusion is very, very weak indeed:

[I]f the Fed or other regulators wanted to restrict what sorts of bonds could be owned by banks, or by pension funds or by anyone else in need of protection, they would have to do it themselves — not farm the job out to Moody’s.... Moody’s itself... like S&P, embraces the idea that investors should not “rely” on ratings for buy-and-sell decisions. This leaves an awkward question, with respect to insanely complex structured securities: What can they rely on? The agencies seem utterly too involved to serve as a neutral arbiter, and the banks are sure to invent new and equally hard-to-assess vehicles in the future. Vickie Tillman, the executive vice president of S&P, told Congress last fall that in addition to the housing slump, “ahistorical behavorial modes” by homeowners were to blame for the wave of downgrades. She cited S&P’s data going back to the 1970s, as if consumers were at fault for not living up to the past. The real problem is that the agencies’ mathematical formulas look backward while life is lived forward. That is unlikely to change.

The problem is not that the rating agencies' formulas look backward while life is lived forward. Rating agencies' business is to look backward: to say that this bond looks, historically, like that class of bonds which have in the past defaulted at such-and-such a rate. The proper business of investment is to take the rating agencies' work as a guide and ask two of the three standard questions:

• What is there in the situation that could make things different this time--that could generate "ahistorical behavioral modes"?
• How much of the risk that things are different this time are we willing to bear?

And then there is the third standard question:

• If this is such a good deal for me to buy it at this price, why is the seller selling--why isn't it a equally good deal for the seller to hold on to it?

Without satisfactory answers to these three questions, you are not investing: you are gambling in Las Vegas and you are not the house--you are, indeed, on a blind date with destiny and she has just ordered the lobster.

Lowenstein's lament in his last paragraph is implicitly a demand that investors not only not have to have answers to these three standard questions, but that they not even be expected to ask them--that investors find somebody else to "rely" on in the cases of "insanely complex structured securities" and of "new and equally hard-to-assess vehicles in the future" that "banks are sure to invent," somebody else who can predict the future. That seems completely wrongheaded. If you truly do not want to ask the three standard questions and evaluate credit risk you should be in U.S. Treasuries (and even there you have to assess inflation risk and, unless you are planning to hold to maturity, monetary policy risk). And if you want higher yields than Treasuries offer--well, then you are back to asking your three standard questions again.

In my view, there seem to be six problems here, rather different than one would think from reading Lowenstein's last paragraphs:

• First, the problem of private organizations where the higher-ups let their CFOs and their subordinates game them by letting them say "it's triple A" when they didn't have answers to any of the three standard questions. This seems to be a problem for shareholders and trustees to deal with.
• Second, the problem of local government officials who were reaching for yield and saying "it's all in triple-A." This seems to be a problem for voters to deal with, or perhaps it's time to require that local governments use the Treasury as some form of fiscal agent.
• Third, the problem of highly-leveraged large financial firms where the traders and portfolio managers asked the three standard questions with respect to CDOs and went ahead otherwise--either because they misjudged the risks, because they correctly concluded that the risks were acceptable but this time got caught, or because they correctly assessed the risks but indulged in moral hazard while thinking that they would have collected their bonuses and moved on by the time the thing blew up. This is a much more serious problem--but it has little to do with the rating agencies.
• Fourth, the problem of the systemic risk--the fact that millions of jobs are now at risk--because of the fallout from problem three. The Fed and the Treasury are now trying to deal with this problem.
• Fifth, the problem that a good many people who could afford to pay their mortgages and stay in their homes will not be able to do so because of crisis risk and default premia loaded onto their mortgage payments--a problem that Frank and Dodd are trying to deal with, that Obama and Clinton would deal with, and that McCain is trying to ignore.

And:

• Sixth, the problem that bond salesmen throughout the world have been deflecting customers' attempts to ask for answers to the three standard questions by saying, "it's triple A! And it offers you a higher yield than other triple A!" and that the rating agencies have been too eager to increase their business by making the fine print in their descriptions of what they do even finer.

Lowenstein's article is written as if problem six is in some sense the problem. And this seems to me to be badly misleading.

"Vengeance, I Dare Predict, Will Not Limp"

John Maynard Keynes on the 1919 Treaty of Versailles that ended WWI. From The Economic Consequence of the Peace:

http://www.gutenberg.org/files/15776/15776-h/15776-h.htm: If we take the view that for at least a generation to come Germany cannot be trusted with even a modicum of prosperity, that while all our recent Allies are angels of light, all our recent enemies, Germans, Austrians, Hungarians, and the rest, are children of the devil, that year by year Germany must be kept impoverished and her children starved and crippled, and that she must be ringed round by enemies; then we shall reject all the proposals of this chapter.... But if this view of nations and of their relation to one another is adopted... heaven help us all. If we aim deliberately at the impoverishment of Central Europe, vengeance, I dare predict, will not limp. Nothing can then delay for very long that final civil war between the forces of Reaction and the despairing convulsions of Revolution, before which the horrors of the late German war will fade into nothing, and which will destroy, whoever is victor, the civilization and the progress of our generation. Even though the result disappoint us, must we not base our actions on better expectations, and believe that the prosperity and happiness of one country promotes that of others, that the solidarity of man is not a fiction, and that nations can still afford to treat other nations as fellow-creatures?...

McCain Lacks the Character to Be a Good President (Support Our Troops Edition)

Mirabile visu, a Washington Post editorial that isn't an affront to decency and sanity:

Thanking Our GIs: TO DATE, 56 senators and more than 200 representatives have signed on to legislation to revamp GI educational benefits. They recognize that the men and women fighting today's wars in Iraq and Afghanistan are not getting their due. But if Congress is serious about doing right by America's veterans, it has to do more than come up with a list of names....

Impetus for the bill comes from Sen. James Webb (D-Va.)... [who] rightly argue[s] that post-Sept. 11 veterans are being shortchanged by a system... that has not kept pace with increased college costs.... [Webb's] bill... would be true to the original GI bill... in providing a cost-free education to those who serve in the military....

Disappointingly, Sen. John McCain... declines to back the measure... responding to concerns of the military brass that enhanced educational opportunities could negatively affect retention rates....

The bill is not cheap; cost estimates range from $2 billion to $4 billion a year. But... this should be considered part of the cost of war -- and an obligation that the nation should gratefully fulfill.

John McCain: An Absence of Character

John McCain--while much better than the other Republican candidates--does not have the character to be a good president.

Here are Michael Cooper and Larry Rohter. They should be ashamed of themselves for their "he said, she said" journalism, but the story gets through if you read their article recognizing that everything said by "the Bush administration" or "Kenneth Pollack" is a lie:

McCain, Iraq War and the Threat of "Al Qaeda": As he campaigns with the weight of a deeply unpopular war on his shoulders, Senator John McCain of Arizona frequently uses the shorthand "Al Qaeda" to describe the enemy in Iraq in pressing to stay the course in the war there.... Critics say that in framing the war that way at rallies or in sound bites, Mr. McCain, the presumptive Republican nominee, is oversimplifying the hydra-headed nature of the insurgency in Iraq in a way that exploits the emotions that have been aroused by the name "Al Qaeda" since the Sept. 11 attacks.

There has been heated debate since the start of the war about the nature of the threat in Iraq. The Bush administration has long portrayed the fight as part of a broader battle against Islamic terrorists. Opponents of the war accuse the administration of deliberately blurring the distinction between the Sept. 11 attackers and anti-American forces in Iraq. "The fundamental problem we face in Iraq is that there is not a single center of gravity, as in the cold war, but a whole constellation of contending forces," said Bruce Hoffman, a terrorism and counterinsurgency expert at Georgetown University.... The entity Mr. McCain was referring to... Al Qaeda in Iraq... did not exist until after the United States invaded Iraq in 2003....

[S]ome students of the insurgency say Mr. McCain is making a dangerous generalization. "The U.S. has not been fighting Al Qaeda, it's been fighting Iraqis," said Juan Cole.... the stew of competing Sunni insurgents, Shiite militias, Iranian-backed groups, criminal gangs and others that make up the insurgency in Iraq. That was vividly illustrated last month when the Iraqi Army's unsuccessful effort to wrest control of Basra from the Shiite militia groups that hold sway there led to an explosion of violence.

The current situation in Iraq should properly be described as "a multifactional civil war"... Ira M. Lapidus, a co-author of %u201CIslam, Politics and Social Movements%u201D and a professor of history at the Center for Middle Eastern Studies at the University of California, Berkeley... wrote in an e-mail message....

In recent months, Mr. McCain has also been talking more about the threat posed by Iranian influence in Iraq, bringing him in line with American military officials, who in the wake of the Basra fighting seem increasingly convinced that Iranian support for Shiite groups now constitutes the primary security threat in Iraq.... talking about both threats, Mr. McCain tripped up last month on a visit to the Middle East, when he mistakenly said several times that the Iranians were training Qaeda operatives in Iran and sending them back to Iraq.... And Mr. McCain went beyond what he usually says and what his foreign policy advisers believe during a back-and-forth with Mr. Obama at the end of February.... Mr. McCain... said at a town-hall-style meeting in Tyler, Tex. "Al Qaeda is in Iraq.... My friends, if we left, they wouldn't be establishing a base. They'd be taking a country, and I'm not going to allow that to happen."

Mr. Obama's views track with those of many independent analysts. In a speech last August, he criticized President Bush by saying: "The president would have us believe that every bomb in Baghdad is part of Al Qaeda's war against us, not an Iraqi civil war. He elevates Al Qaeda in Iraq -- which didn't exist before our invasion -- and overlooks the people who hit us on 9/11, who are training new recruits in Pakistan."...

Few, including Mr. McCain, expect Al Qaeda in Mesopotamia, a Sunni group, to take control of Shiite-dominated Iraq in the event of an American withdrawal.... Randy Scheunemann, Mr. McCain's senior foreign policy adviser, said during a recent conference call with reporters that in the event of an American pullout, "you might not necessarily see a single entity taking charge." But such a withdrawal could empower Shiite militias in the south and Kurds in the north, leaving Al Qaeda "free to try to impose its will" and lead to increased sectarian violence that "would be very likely to draw neighbors into the conflict," he said...

And Matthew Yglesias has a point to make about this, and about the ethics of Michael Cooper and Larry Rohter going to Kenneth Pollack for "balance":

Matthew Yglesias: Ken Pollack's Defense of Lying: This New York Times article about how John McCain's political strategy is based on fundamentally misleading people about the nature of the situation in Iraq, but that's okay with the media not because they're fooled but just because they like John McCain, has gotten a lot of attention, and rightly so. But this particular paragraph is especially telling:

In longer discussions on the subject, Mr. McCain often goes into greater specificity about the entities jockeying for control in Iraq. Some other analysts do not object to Mr. McCain's portraying the insurgency (or multiple insurgencies) in Iraq as that of Al Qaeda. They say he is using a "perfectly reasonable catchall phrase" that, although it may be out of place in an academic setting, is acceptable on the campaign trail, a place that "does not lend itself to long-winded explanations of what we really are facing," said Kenneth M. Pollack, research director at the Saban Center for Middle East Policy at the Brookings Institution.

At a time like this, you have to ask yourself what is the Brookings Institution for. According to the Brookings website:

The Brookings Institution is a nonprofit public policy organization based in Washington, DC. Our mission is to conduct high-quality, independent research [...] The research agenda and recommendations of Brookings experts are rooted in open-minded inquiry and our scholars represent diverse points of view. More than 200 resident and nonresident fellows research issues; write books, papers, articles and opinion pieces; testify before congressional committees and participate in dozens of public events each year. The Institution's president, Strobe Talbott, is responsible for setting policies that maintain Brookings's reputation for quality, independence and impact.

To me, that sounds inconsistent with offering a public defense of the practice of using the term "al-Qaeda" to refer to entities that are not al-Qaeda. High-quality research would be that if some large number of public officials and media personalities started referring to something as "al-Qaeda" when it was not, in fact, al-Qaeda you try to correct the record. Instead, Pollack seems to feel his job is to help push back against the people who are trying to correct the public record.

It's certainly an interesting development. A lot of very good people work at Brookings. I imagine they enjoy working at a place that has a reputation for "high-quality, independent research . . . rooted in open-minded inquiry" but it's a reputation they're in danger of losing. Strobe Talbott, who's "responsible for setting policies that maintain Brookings's reputation for quality, independence and impact" might want to think about some of this.

I don't think that it's a reputation Brookings is "in danger of losing" anymore. I think that it's a reputation that Brookings--outside of Economic Policy--has already lost. Certainly foreign-policy stuff from Brookings that shows up in my mailbox today goes to the bottom of the pile--intermixed with the stuff from AEI, well below the stuff from serious think-tanks.

It's probably too late for Strobe Talbott to think about this. But the Trustees of the Brookings Institution should be thinking very hard about this. Very, very hard.

John Yoo Supports Mike Dukakis...

Showing good judgment, I must say:

Is That Legal?: How Times Have Changed!: UNLIKE any other candidate, the voters know what to expect if they elect Gov. Michael S. Dukakis as their next president. Dukakis is the only Democrat in the race who has a proven track record of success, and he has also demonstrated the personal qualities of honesty, candor, and integrity that set him apart from his competitors.

Dukakis is the only candidate who has run a government... balanced a budget, formulated a legislative program, led a cabinet, and acted as an executive. He has learned the need for compromise and agreement, which will serve him well in Washington. He has drawn his experience from the act of governing, not sitting in a comfortable Washington office building worrying about PACs and interest groups.

Dukakis' record as governor of Massachusetts illustrates a record of tangible achievement, rather than the theoretical--and at times fanciful--plans of his competitors. Fiscal prudence and compassionate, practical social programs have become the Dukakis trademark....

Dukakis has moved to develop a coherent foreign policy, one that recognizes that America can no longer dictate to the rest of the world.... Perhaps what we need now is a president who can bring intelligence and good sense to foreign policy.... On many issues Dukakis shows fundamental disagreement with other candidates and he emerges with more of a discernable identity than others. He repudiates Gore's militaristic foreign policy...

Phillip Carter on Chris Edley and John Yoo

From <>:

Convictions : Blame Berkeley: With all due respect to Chris Edley, whom I admire, and the University of California, to which I owe a great deal, I think Edley's position on John Yoo gets it exactly wrong -- and epitomizes why people deride the "Ivory Tower" as insulated from reality.   Law schools have an obligation to do more than teach lawyers to offer legal advice without regard for the consequences of their counsel.  I also think that law schools ought to model behavior for their students, and think very seriously about the pedagogical impact of retaining a man on the faculty whose legal advice and scholarship produced such disastrous policy, to say nothing of the suffering of those on the receiving end of Yoo's ideas.   And, I think Edley's position wrongfully absolves lawyers, and the legal academy, of responsibility for when they get things wrong -- or when their counsel produces terrible outcomes.  As my colleague Deborah Pearlstein points out, we wouldn't accept that result in molecular biology or medicine or many other disciplines.   I don't think we should accept it in the law either -- not in practice, and not in law school either.  Academic freedom should not be a dodge for personal or professional responsibility.

Kissing the Duke of Exeter's Daughter, or De Laudibus Legum Angliae...

William Blackstone, IV, 25, 326:

The rack, or question, to extort a confession from criminals, is a practice of a different nature [than pressing with stones until the torturee either offers a plea or is dead]; this having been only used [for procedural purposes] to compel a man to put himself upon his trial; that being a [substantive] species of trial in itself. And the trial by rack is utterly unknown to the law of England; though once, when the dukes of Exeter and Suffolk, and other ministers of Henry IV, had laid a design to introduce the civil law into the kingdom as a rule of government, for a beginning thereof they erected a rack for torture, which was called in derision the Duke of Exeter's daughter, and still remains in the Tower of London; where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth. But when, upon the assassination of Villiers, duke of Buckingham, by Felton, it was proposed in the privy council to put the assassin to the rack in order to discover his accomplices, the judges, being consulted, declared unanimously, to their own honour and the honour of English law, that no such proceeding was allowable by the laws of England.

It seems astonishing that this usage of administering the torture should be said to arise from a tenderness for the lives of men; and yet this is the reason given for its introduction into the civil law, and its subsequent adoption by the French and other foreign nations; viz., because the laws cannot endure that any man should die upon the evidence of a false, or even a single, witness, and therefore contrived this method that innocence should manifest itself by a stout denial, or guilt by a plain confession. Thus rating a man's virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves!...

Interesting phrase that: "...used as an engine of state, not of law..."

---

• Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell, and Lord Brown of Eaton-under-Heywood (2005), A and others v Secretary of State for the Home Department, X and another v Secretary of State for the Home Department http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand.pdf
• Jeremy Waldron: Torture and Positive Law: Jurisprudence for the White House http://www.columbia.edu/cu/law/fed-soc/otherfiles/waldron.pdf
• Times: A noble vision loshttp://www.timesonline.co.uk/tol/comment/article757265.ece

John Yoo and FDR...

Sandy Levinson writes:

Balkinization: I have also recently read William Stevenson's The Man Called Intrepid, about all sorts of irregular and illegal activities that book place both in Great Britain and the United States prior to the formal outbreak of World War II. Indeed, Robert Sherwood is quoted as saying that FDR realized that he would impeached if Americans knew of some of his violation of the neutrality acts. I have no reason to doubt that John Yoo believed that the situation facing the United States after September 11 was as dire as that facing England and the United States in 1939-40. How important is it whether one agrees or disagrees with his analysis of the situation and his concomitant willingness to do what he did?

I will be genuinely grateful for any reflections on these questions--and any other questions that any respondents might wish to raise--as I try to figure out my own position on whether Berkeley has any duty to initiate a serious inquiry into John Yoo's fitness to continue as a member of its faculty...

I thought that this was pretty clear. Neacessity is a defense or an excuse or a justification (whatever of those applies) for illegal actions. But it is necessity that is required-- not "I believed it was necessary," not "some unqualified bozo with bad judgment above me in the chain of command said he thought it was necessary."

If John Yoo had written "this is illegal but necessary" and if it had in fact been necessary for the safety of the world and the American people that we routinely torture goatherds sold to the CIA for cash by clan enemies claiming they belonged to Al Qaeda on the one-in-a-million chance that one of them knows something, I wouldn't have a problem with John Yoo.

But he did not write "this is illegal but necessary." And the torture of goatherds has made the world and the American people much less safe.

And, to say the least, I have grave doubts that anybody ever believed that the situation facing the United States after September 11 was as dire as that facing England and the United States in 1939-40.

Tyler Cowen Is a More Diligent Man than I Am

He has read his copy of Heads in the Sand. He thinks that Matt Yglesias should be forced to spend a month working for the UN:

Marginal Revolution: Heads in the Sand: HThat's by Matt Yglesias (son of Rafael Yglesias) and the subtitle is How the Republicans Screw Up Foreign Policy and Foreign Policy Screws Up the Democrats. Anyone who reads books on foreign policy should buy this book. Most of all it is a critique of recent practice and a defense of liberal internationalism. He calls for negotiating with Iran, not digging in deeper in Iraq, and more generally accepting multilateral frameworks for the use of American military power.

I agree with the policy recommendations though I would package them differently. I view liberal internationalism as a kind of noble lie which will in any case be superseded by American exceptionalism, most of all because of differing European and American experiences in WWII and differing degrees of religiosity. Rightly or wrongly, Americans are more likely to see menaces abroad and of course America is the only country that can even try to do much about them. Of course we've shown we're not up to the job, noting that Afghanistan (a just war, I might add, and do note it commanded international support for a while but that turned out not to matter) is probably going even worse than Iraq by standards of long-run viability. If our interventions are counterproductive, then constraints on those interventions are beneficial, and in that regard we can embrace internationalism for practical reasons.

But I can't have a high opinion of internationalism per se, perhaps because I've spent too much time actually working in multilateral institutions. The incentive is to negotiate at the margin, and eke out a somewhat better deal for one's nation and carry victories to diplomatic superiors back home, rather than to actually solve the international problem in cooperative fashion. If there is any good solution to be had, the large number of negotiating parties usually requires America to play von Stackelberg leader (remember Yugoslavia?), noting that our ability to do this has broken down for reasons that go beyond the failures of Bush. The EU now precommits to a greater role in global decisions and many more countries are wealthy and have global interests. Media spin means that no one wants to take too many sacrifices.

I think once a Democrat assumes the Presidency it will become clear just how much the old order has broken down, probably forever. European diplomats were cynical in the first place and don't forget that the Security Council still has two members whose influence is more or less pure poison. I can't imagine what liberal internationalism means, for instance, when it comes to allocating the thawing bits of the Arctic and the associated oil wealth. What will happen if/when the Russians simply try to grab more than international conventions allow them?

Note, by the way, that Saddam and Chirac really were gift-giving friends; that's not just a right-wing fantasy. At some level American voters understand much of this, albeit in excessively provincial terms, and they simply won't, in the electoral sense, allow the Democrats to inhabit the old space of internationalism.

In game-theoretic terms I would say the key question is what is the "threat point" America adopts when it offers to join international coalitions. Whatever Matt's answer might be (his book is not written in that sort of lingo) that is now the key question, noting that whatever threat point you specify you have to be willing to live with. One paradox is that the more internationalist your default threat point is, the less effective a country actually will be in leading an international coalition.

In short, I'm all for talk of liberal internationalism as long as we don't take it too seriously on its own terms. My prediction is that, doctrinally, Matt will eventually end up somewhere else, even though his practical advice is very sound and very well articulated and doesn't much need to be changed. I hereby sentence him to one full month spent working at the United Nations.

Two immediate thoughts come to mind:

• Donald Rumsfeld and Saddam Hussein were considerably more than gift-giving friends once.
• Governments are interested in winning zero-sum power games. People are--or rather ought to be--interested in not dying in wars and in being able to buy cheap stuff made abroad and visit interesting places. Liberal internationalism is possible to the extent that governments fear their people, and people understand their own interests.

Paul Berman Is a Deeply Broken Person

Why oh why can't we have a better press corps?

Duncan Black writes:

Eschaton: Stars Of Their Own Heroic Epic: Years later, it's hard to comprehend the depths of the narcissism of people like [Paul] Berman who obviously see events in the world as nothing more than referendums on their own awesomeness. He and his fellow travelers spent years berating dirty fucking hippies like me for daring to suggest that maybe war in Iraq was not some awesome idea, but instead, you know, bad. And now he wants to claim he opposed it?

This a deeply broken person.

He is reacting to Spencer Ackerman, who drops his jaw in amazement:

From <>:

toohotfortnr: public witness ain't seeing too much: Paul Berman did a BloggingHeads with Heather Hulburt in which the arch liberal-Iraq-hawk strongly suggests that he didn't support the war. You be the judge. Relevant section is about 2:30 in.

On the Iraq war, I myself wrote a piece in The New Republic on March -- which came out in the March 3, 2003 issue saying George Bush was leading us over a cliff. And that his notion of how to deploy power was lacking in liberal principle and that his use of power was going to turn out to be no power at all. In short it was going to be a disaster. I published this before the war. I made that prediction before the war. It's true that afterward I haven't made a career of running around saying I told you so, but if you look it up, the major article ... yeah, I was in favor of getting rid of Saddam but Bush's way of going about it was quite bad, and I pronounced myself, I used the word 'terrified,' of what would come of it.

TNR's messed-up web archives have erased Paul's article.... But it doesn't say what Paul says it says.... Leave aside his odious arrogance. (He told me so?) Paul says his piece recognized Bush's strategic foolishness and illiberalism. He's right. The trouble is he recognized it as a caveat to his enthusiasm to the war, not as an impediment. In other words, Berman wanted a war for liberalism, recognized that it wouldn't be one, and backed it anyway. That -- to say the least -- implicates his judgment.

In order to whitewash this, he pretends his caveat was his argument. He did this before, in the New York Review of Books, where he quoted his caveat and said it rose "rising to what I like to picture as a crescendo." Well, it wasn't a crescendo. It would only have been a crescendo if it stopped him from backing the war. Instead he took the opposite approach. Fine. But own up to it, don't pretend that wasn't your judgment.

Update: Oh God. Toward the end of the clip, Paul says:

Then there's the intellectual debate. The intellectual debate should always tell the truth. It should never be modest. It should always be grandiose.

Please, please, please, step back from the cliff...

And to Matthew Yglesias:

Matthew Yglesias (November 12, 2007) - Did Paul Berman Tell Us So? (Foreign Policy): In the midst of an argument with Ian Buruma, liberal hawk extraordinaire Paul Berman tries to convince us that he actually called Iraq correctly, and has merely been magnanimous in not pointing that out:

I approved on principle the overthrow of Saddam. I never did approve of Bush's way of going about it. In the run-up to the war, I became, on practical grounds, ever more fearful that, in his blindness to liberal principles, Bush was leading us over a cliff. [...] It is true and it is a matter of satisfaction to me that, in the years since then, I have not made a career of saying "I told you so."

Here's what Berman was actually writing in February 2003:

In my own judgment, Fischer and his fellow thinkers in Europe and even in the United States are making a mistake in failing to press for a harder line against Iraq--a harder line that might bring about Saddam's collapse more or less peacefully or, if need be, not peacefully. It should be obvious that, in the Arab world, fascist and Nazi-like movements--political tendencies that call for random mass murder in the name of paranoid and apocalyptic ideas--have gotten completely out of hand. In the last 20 years, Baathist and Islamist movements--the two branches of what ought to be regarded as Muslim fascism--have killed millions of people and might well kill many more, and not just in the Muslim countries, as we have reason to know. A war against Muslim fascism ought to be seen as a continuation of the long struggle against Nazism and fascism in Europe--a continuation of the same decent and necessary cause that people like Fischer have always wanted to support, even if they have not always known how to do so in a sensible way.

He was worried about Bush's failure to embrace liberalism, but it wasn't a worry that this meant the war would go badly, it was a worry that Bush wasn't being as rhetorically persuasive as he should have been:

Maybe Fischer is not convinced because the Bush administration has presented a series of side arguments about weapons, U.N. resolutions, and dark terrorist conspiracies and has failed to present the main argument, which is the single huge argument that has always sustained the Western alliance. This argument is the one about totalitarianism. It is the argument that says: The totalitarians are dangerous to themselves and to us, and we had better fight them. Fight wisely, of course, which the New Left notoriously managed not to do long ago, but fight. Why can't Bush make that argument? I won't speculate. But he could change. He gave up drinking long ago. Let him give up his arrogance, small-mindedness, and aversion to large and idealistic ideas today. It might help.

And here he was in January 2004 when many people still thought the war was going well:

What was the reason for the war in Iraq? Sept. 11 was the reason. At least to my mind it was. Sept. 11 showed that totalitarianism in its modern Muslim version was not going to stop at slaughtering millions of Muslims, and hundreds of Israelis, and attacking the Indian government, and blowing up American embassies. The totalitarian manias were rising, and the United States itself was now in danger. A lot of people wanted to respond, as any mayor would do, by rounding up a single Bad Guy, Osama.

But Sept. 11 did not come from a single Bad Guy--it was a product of the larger totalitarian wave, and the only proper response was to comprehend the size and depth of that larger wave, and find ways to begin rolling it back, militarily and otherwise%u2014mostly otherwise. To roll it back for our own sake, and everyone else's sake, Muslims' especially. Iraq, with its somewhat antique variation of the Muslim totalitarian idea, was merely a place to begin, after Afghanistan, with its more modern variation.

In short, Berman was wrong. The reason he hasn't made a career of telling us "I told you so" is that, in this instance at least, he didn't tell us so. But now he's trying to tell us that he did tell us so. But all he told us was that had Bush employed more Berman-style rhetoric then maybe more of Berman's friends would, like Berman, have wrongly deciding that an invasion of Iraq was a good idea.

Paul Berman may or may not be the stupidest man alive^TM. But he surely is the most mendacious man alive.

For the record, I was in favor of the war on Iraq in the winter of 2003. I reasoned:

• Condi Rice is not-stupid and not-malevolent, and is for the war.
• Colin Powell is not-stupd and not-malevolent, and is for the war.
• This means that even though the public intelligence is bs, that there must be solid evidence of an advanced nuclear program in Iraq and of a willingness to give serious weapons to terrorist groups--otherwise attacking Iraq while we have real enemies like Osama bin Laden running loose would be really stupid.
• And although Bush is really stupid, not everyone in the administration is.

Wrong on all counts. I am very sorry.

I may be the stupidest man alive.

John McCain and Hillary Rodham Clinton Fail the Commander in Chief Test

Matthew Yglesias writes:

Matthew Yglesias: Northern Ireland: Here's a nice rundown of the Clinton campaign's Northern Ireland mumbo-jumbo. I think what her husband's administration did there was a very legitimate achievement and very much highlights some of the shortcomings of the George W. Bush approach which has no comparable examples of constructive U.S. engagement in the troubles of the world. It also highlights John McCain's catastrophically poor understanding of foreign affairs as, at the time, he denounced the Northern Ireland initiative as a sellout of a key U.S. ally doomed to failure.

So it's not a bad issue for Clinton to raise, in its way. But she wants to raise it as an example of her personal foreign policy chops and the evidence just isn't there. It's normal for a new president to have little direct foreign policy experience, and either Clinton or Obama would fit that bill. But Clinton seems determined to pretend she's some kind of seasoned hand that she isn't.

http://hosted.ap.org/dynamic/stories/C/CLINTON_NORTHERN_IRELAND?SITE=NCAGW&SECTION=HOME&TEMPLATE=DEFAULT

A Bulletin on Baghdad and Basra from the Times of London

James Hilder writes:

Areas of Baghdad fall to militias as Iraqi Army falters in Basra: Iraq's Prime Minister was staring into the abyss today after his operation to crush militia strongholds in Basra stalled, members of his own security forces defected and district after district of his own capital fell to Shia militia gunmen. With the threat of a civil war looming in the south, Nouri al-Maliki's police chief in Basra narrowly escaped assassination in the crucial port city, while in Baghdad, the spokesman for the Iraqi side of the US military surge was kidnapped by gunmen and his house burnt to the ground.

Saboteurs also blew up one of Iraq's two main oil pipelines from Basra, cutting at least a third of the exports from the city which provides 80 per cent of government revenue, a clear sign that the militias -- who siphon significant sums off the oil smuggling trade -- would not stop at mere insurrection.

In Baghdad, thick black smoke hung over the city centre tonight and gunfire echoed across the city. The most secure area of the capital, Karrada, was placed under curfew amid fears the Mahdi Army of Hojetoleslam Moqtada al-Sadr could launch an assault on the residence of Abdelaziz al-Hakim, the head of a powerful rival Shia governing party. While the Mahdi Army has not officially renounced its six-month ceasefire, which has been a key component in the recent security gains, on the ground its fighters were chasing police and soldiers from their positions across Baghdad. Rockets from Sadr City slammed into the governmental Green Zone compound in the city centre, killing one person and wounding several more.

Mr al-Maliki has gambled everything on the success of Operation Saulat al-Fursan, or Charge of the Knights, to sweep illegal militias out of Basra. It has targeted neighbourhoods where the Mahdi Army dominates, prompting intense fighting with mortars, rocket-grenades and machineguns in the narrow, fetid alleyways of Basra. In Baghdad, the Mahdi Army took over neighbourhood after neighbourhood, some amid heavy fighting, others without firing a shot. In New Baghdad, militiamen simply ordered the police to leave their checkpoints: the officers complied en masse and the guerrillas stepped out of the shadows to take over their checkpoints.

In Jihad, a mixed Sunni and Shia area of west Baghdad that had been one of the worst battlefields of Iraq’s dirty sectarian war in 2006, Mahdi units moved in and residents started moving out to avoid the lethal crossfire that erupted. One witness saw Iraqi Shia policemen rip off their uniform shirts and run for shelter with local Sunni neighbourhood patrols, most of them made up of former insurgents wooed by the US military into fighting al-Qaeda. In Baghdad, thousands of people marched in demonstrations in Shia areas demanding an end to the Basra operation, burning effigies of Mr al-Maliki, whom they branded a new dictator, and carrying coffins with his image on it.

From his field headquarters inside Basra city, the Prime Minister vowed to press on with his attack, which he said was not targeting the Mahdi Army in particular but all lawless gangs. "We have come to Basra at the invitation of the civilians to do our national duty and protect them from the gangs who have terrified them and stolen the national wealth," he said. "We promise to face the criminals and gunmen and we will never back off from our promise." Supporters of Hojetoleslam al-Sadr, the rebellious cleric who formed the sprawling, 60,000-strong militia five years ago, have accused the Prime Minister of trying to wipe out the powerful Sadrists as a political force before provincial elections in October.

Residents of Basra complained that water and electricity had been turned off in the three main areas besieged by the Iraqi Army, which has an entire division deployed for the battle. They also said that they were running low on food an unable to evacuate their wounded. Estimates of the death toll in Basra reached as high as 200, with hundreds more wounded. “The battle is not easy without coalition support,” lamented one Basra resident, who had worked as a translator for the British forces. “The police in Basra are useless and helping the Mahdi Army. The militia are hiding among the civilians. This country will never be safe, I want to leave for ever. I don’t know how to get out of this hell.”

One man was shot in the leg while trying to fix the rooftop water tank on his house but feared he would be taken for a militiaman if he tried to reach a hospital. Officials said that more than 200 militiamen had surrendered after the Government issued a three-day deadline to give themselves up. While residents in Basra said that the army appeared to be making little headway against the militia bastions, a British Army spokesman based at nearby Basra airport said progress was being made. “The Iraqi Army are rebalancing across the city, consolidating their positions, resupplying and preparing for future operations,” said Major Tom Holloway. “They made considerable progress, although not total progress by any stretch of the imagination.”

With fighting flaring across the Shia south, the police chief of Kut — where Mahdi fighters had seized large parts of the town, 110 miles southeast of Baghdad — said his men had killed 40 militiamen while losing four officers. "The security forces launched an operation at around midnight to take back areas under the control of Shiite gunmen," Abdul Hanin al-Amara said. While US and British military officials have been at pains to distance themselves from the push against the deadly militias, President Bush praised the high-risk strategy of tackling militias that a politically weak Mr al-Maliki had been forced to court in the past. "Prime Minister Maliki's bold decision, and it was a bold decision, to go after the illegal groups in Basra shows his leadership and his commitment to enforce the law in an even-handed manner," Mr Bush said. "It also shows the progress the Iraqi security forces have made during the surge"...

Fear of John McCain

Harold Meyerson is afraid of John McCain:

McCain on the Red Phone: It is 3 a.m., and the stillness of the White House night is shattered by the ringing of the red phone. President John McCain, rousing himself from a deep sleep, turns on the light and picks up the receiver. A U.S. embassy in a Middle Eastern country, he is told, has been blown up, and al-Qaeda is taking credit. McCain takes a deep breath. "Character counts, my friend," he says. "Bomb Iran. Bomb, bomb Iran."

There is a rustling of blankets, and, brushing aside Cindy McCain, a concerned Joe Lieberman rises from the bed. "Not Iran, Mr. President," he says. "They hate al-Qaeda."

"That's right," the president says. "I remember now." He sighs with relief. "Good thing you're here every night, Joe."

But suppose, dear reader, that John McCain becomes president and Joe Lieberman doesn't bunk with the McCains on a nightly basis. How easily should the rest of us sleep?...

[T]he al-Qaeda-Iran alliance wasn't just a passing thought.... Whether it was a simple mistake, a neoconservative delusion or a habit of mind that lumps together all of America's enemies (either sincerely or calculatedly, to build public support for military action), we cannot say. What we can say is that the idea of any or all of these options is profoundly disquieting. The very thought of a president who deliberately conflates or erroneously confuses our adversaries with each other is appalling.... We're mired in a war that has its roots in George W. Bush's both imagining and fabricating an alliance between Saddam Hussein and Osama bin Laden. Do we really want to perpetuate these habits of mind in the next administration?...

[The] prevailing [journalistic] narrative of McCain's national security expertise... [lacks] assessment of the nature of his beliefs... "rogue state rollback"... preventive war... permanent war... missile defense... military unilateralism.... If you liked Bush's foreign and military policy, you'll love McCain's.

But McCain's thinking... remains an undiscovered country to his countrymen.... On economic matters, that may be because he doesn't seem to have devoted much time or energy to thinking about the economy.... Hard to say what's more dangerous -- McCain's approach to the economy or McCain's approach to the world. The thought of him answering the red phone at 3 a.m. fills me with foreboding. Hell, I don't want him answering the red phone at 3 p.m.

America Held Hostage by Nouri al-Maliki

Spencer Ackerman:

toohotfortnr: wages of sin, we keep paying: Iraqi PM Nouri al-Maliki is giving powerful Shiite cleric Moqtada Sadr's forces three days to surrender in Basra, as clashes between Maliki's security forces and Sadr's Mahdi Army -- in which the U.S. intervenes on Maliki's side -- escalate. But with the U.S. happy about the now-abrogated Sadrist ceasefire, why is the U.S. military getting involved? The Washington Post isn't sure:

It was unclear why U.S. forces would take part in a broad armed challenge to Sadr and his thousands-strong militia on the eve of Petraeus's assessment, which the Bush administration has said would greatly influence its decision on whether to draw down troop levels.

Here's an answer. As long as Maliki is in the prime minister's chair, and as long as we proclaim the Iraqi government he leads to be legitimate, Maliki effectively holds us hostage.... It simply is not tenable for Petraeus to refuse a request for security assistance from the Prime Minister to deal with a radical militia.

Now, some of my Iraq-watcher friends of mine point out that this is absurd. "Sadr is, of course, a thug," they say, "but he's a nationalist. And he's far less beholden to Iran than the Islamic Supreme Council of Iraq or Maliki's Da'wa Party -- both of whom we're supporting! And most importantly, Sadr remains perhaps the most popular figure in Shiite Iraq. Petraeus can do business with him. This doesn't make any sense!" And they're right. It doesn't. But as long as we sponsor the Iraqi political process -- and a Sadrist doesn't actually become premier himself -- this will keep happening....

The dangers of picking and choosing who the Iraqi premier should be outweigh any imperial temptations we may feel. We'll be just as responsible for Prime Minister Next-Up's mistakes as we are for Maliki's. And the Iraqis will never trust any leader that foreigners pick for them. In what's shaping up to be the Second Sadrist Intifada, you go to war with the prime minister you have, not the prime minister you might want.