Thursday, October 26, 2006

I'm still alive and fairly well

Just a little busy with the readings and preparations for class. Not to mention there to be a fairly distinct lack of need and of inclination to blog (as a proxy for ranting to my ever suffering mother) in the face of the whole load of academic discussion and debate that we actually do get in class.

Not always, to be true, as we're increasing getting stumped in 1st Amendment trying to articulate whole coherent responses and principles e.g. like why shouldn't commercial speech be considered like any form of speech that gets 1st Amendment protection and why does it actually get instead "qualified, yet substantitial protection" from the 1st Amendment. And does this change from the absolute viewpoint that it was unprotected then simply represent a compromise but if so and as always, do compromises actually make sense? Expidient as they may be.

Anyway, barring a radical change in my schedule, this is likely how it's going to go unless people want to suddenly start reading about my personal life.


Monday, October 23, 2006

Why Draw the Line at where We Draw the Line?

My International Law Prof posted the article below and invited response to the question, "Warming Up to Torture?"

I don't think I answered the question per se, instead my response was simply a query of why Prof Dershowitz draws the line where he draws the line.

Bill Clinton's call for court-approved 'torture warrants' hasn't drawn the same outcry as a similar proposal from a few years back.
By Alan M. Dershowitz
ALAN M. DERSHOWITZ is a professor of law at Harvard. He is the author of many books, including, most recently, "Preemption: A Knife that Cuts Both Ways."

October 17, 2006

SEVERAL YEARS AGO, I provoked a storm of controversy by advocating "torture warrants" as a way of creating accountability for the use of torture in terrorism cases. I argued that if we were ever to encounter a "ticking bomb" situation in which the authorities believed that an impending terror attack could be prevented only by torturing a captured terrorist into revealing the location of the bomb, the authorities would, in fact, employ such a tactic.

Although I personally oppose the use of torture, I recognize the reality that some forms of torture have been, are being and will continue to be used by democracies in extreme situations, regardless of what we say or what the law provides. In an effort to limit the use of torture to genuinely extreme "ticking bomb" situations, rather than allowing it to become as routine as it obviously became at Abu Ghraib, I proposed that the president or a federal judge would have to take personal responsibility for ordering its use in extraordinary situations.

For suggesting this approach to the terrible choice of evils between torture and terrorism, I was condemned as a moral monster, labeled an advocate of torture and called a Torquemada.

Now I see that former President Clinton has offered a similar proposal. In a recent interview on National Public Radio, Clinton was asked, as someone "who's been there," whether the president needs "the option of authorizing torture in an extreme case."

This is what he said in response: "Look, if the president needed an option, there's all sorts of things they can do. Let's take the best case, OK. You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next . three days. And you know this guy knows it. Right, that's the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal.

"We have a system of laws here where nobody should be above the law, and you don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court."

Clinton was then asked whether he was saying there "would be more responsibility afterward for what was done." He replied: "Yeah, well, the president could take personal responsibility for it. But you do it on a case-by-case basis, and there'd be some review of it." Clinton quickly added that he doesn't know whether this ticking bomb scenario "is likely or not," but he did know that "we have erred in who was a real suspect or not."

Clinton summarized his views in the following terms: "If they really believe the time comes when the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of 'em, then they can present it to the Foreign Intelligence Court, or some other court, just under the same circumstances we do with wiretaps. Post facto..

"But I think if you go around passing laws that legitimize a violation of the Geneva Convention and institutionalize what happened at Abu Ghraib or Guantanamo, we're gonna be in real trouble."

It is surprising that this interview with the former president has received so little attention from those who were so quick to jump all over me. Clinton goes even further than I did. He would, in extreme cases, authorize the granting of a warrant "post facto" by a specialized court, as is now the case with national security wiretaps. What I proposed is that the warrant authorization be issued before the use of extreme measures is permitted. A preliminary warrant could be issued in a manner of minutes, to be followed up by a more thorough, after-the-fact evaluation and review.

I offered my controversial proposal as a way to stimulate debate about a difficult choice of evils. I hope that the silence following the Clinton interview does not mean the debate has ended. The problem persists. Torture will continue. Let's not stop thinking and talking about whether the evil of torture is ever a necessary evil.

My biggest difficulty is in understanding why Prof. Dershowitz draws the line where he draws it. While I have some sympathy with the position he holds, nevertheless I find the situation of which he speaks of not just unrealistic but also that his requirement of a warrant generates the same possibility of abuses than might otherwise be the case under an outright ban.

I should also state that I'm massively conflicted over this issue and do find myself viscerally supporting torture on an ad hoc basis even where I find it repugnant.

1. Likelihood of situation.

Realistically speaking, I would love to see when such a scenario would actually accrue i.e. that the government knows that there is an imminent large scale threat, that they know that this particular terrorist has the information and that they think (on what arbitrary "reasonable" grounds) that the terrorist would spill the beans with torture (undefined).

More likely and arguably more effective would be the use of torture to extract general information to determine and prevent a potential future plot, which apparently was the case with Hambali the bomb maker and helped (although it is never clear in what sense) to prevent another immediate Bali attack. If that's the standard then arguably all terrorist ought to be tortured and torture becomes routine and not the last resort anymore.

Furthermore, why should the slippery slope not work the other way? If a thousand lives (or even a hundred) are at stake, why should we preserve the sanctity of say the terrorist's immediate family? Perhaps we could torture the terrorist's wife/husband, parents or three-year old child if we honestly believe that the ends justifies the means. While I find this scenario personally repugnant, given the appropriate situation, who knows what the reasonable person would do?

If we believe that we are not simply fighting a convention war but one based on ideology as well, then torture in and of itself is massively counterproductive especially in the international setting.

2. Prevention of abuse?

Needless to say, torture happens and here I agree that unless we want to hypocritical and turn a blind eye to it, it ought to be either regulated or cracked down severely. Nevertheless torture warrants create a unique incentive not to be used.

Assuming the authorities think that torture is justified in this particular circumstance but the judge is reluctant and refuses to sanction the torture (on say the basis that the government has not established the above elements or do we assume deference to the executive?), is it more likely that given the "ticking time-bomb" situation, the rule of law would really be obeyed? Or is it more likely that the authorities would not make such a submission or simply disobey the judge?

Forcing people to make abhorrent choices surely ought not to be what a government should be doing. Banning torture outright draws a nice big bright red line that prevents even such issues from having to arise.

3. What's the definition anyway?

The definition of torture (using the definition from a federal anti-torture statute, 18 USC Sec. 2340A), "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control".

I readily concede that by a plain reading, I do wonder how extended sleep, food and water, sensory deprivation, white noise, withholding of non-essential medical aid etc. simply constitute acceptable interrogation techniques and not torture proper. Except insofar as it probably doesn't feel as bad as beatings or needles under nails.

Maybe instead of torture warrants, we ought to define (or at least interpret) what torture is (no permanent damage, scarring or maiming, and medical personnel ought to be present at all times) and leave the rest to the current system to regulate.

Although I do fear where the line will end up being drawn.


Saturday, October 21, 2006

THBT the US Federal Government should Abandon the Non-Proliferation Treaty

Some things simply should not be done at the end of the school week, especially when the weather is not simply cold but miserable i.e. gray. One of them, is stupidly volunteering to ironman (one person team) a debate when you do not know what the motion is. But regardless, here's the government case I came up with and why I would have shredded myself if I were on opposition.

Anyway, simple policy, the US President (he's the only one with the powers to enter into and terminate or abandon treaties under US Constitution) will give the requisite 6 months notice and pull out of the NPT.

Issue 1. Has the NPT failed?

The Nuclear Non-proliferation treaty as the name does not suggest merely refers to nuclear weapons (and nuclear technology that can lead to the weaponisation of nuclear power). So yes, Iran is right in that it does have the right to civilian nuclear power. But I simply tend to laugh at the suggestion they don't wish to gain nuclear weapons.[1]

But the fact remains that instead of the original Nuclear Club of 5, we now have a club of 8.[2] The implicit bargain that in return for not attempting to develop nuclear weapons, everyone else would not develop them and hopefully that would mean no nuclear deverstation. And of course, there still remain the right to civilian nuclear energy. But the prospect of having a nuke is simply too enticing for various reasons and the moment someone else has one, the surrounding neighbours get twitchy enough to consider having one. So see India and Pakistan for example. Japan is playing it remarkably cool by not seeking the nuclear option despite their very real capabilities. But one wonders whether Taiwan and South Korea feel the same way. Similarly, An nuclear Iran may well spur Saudi Arabia, Egypt, Qatar and the UAE to seek it.

Secondly, the nuclear threshold has been breached. The Nuclear 5 wasn't suppose to aid other nations in their quest for nuclear weapons. Unfortunately China helped Pakistan and through AQ "Nuclear Supermarker" Khan it spread to North Korea. North Korea given enough time and desperation may well start selling its expertise to other nations with even less compunture in using them (hard as it may be to believe.

But President Kennedy's prediction in 1969 that in less than a decade that there would be 25 nuclear nations has not come through because in part of the NPT. The argument I would make is that circumstances have radically changed such that past behavior cannot predict future performance. The fear of nuclear armagedeon has passed and nations seek nuclear weapons for other purposes. Not enough to destroy the world but to serious hurt the other nation in the game we call M.A.D. (Mutually Assured Destruction).

But the other threat is that nukes will be used for terror purposes by non-state actors. The more nukes there are around, the more likely that something will fall into their hands.

But even so, would the world and the US be better off without the NPT to bind them? A strong argument could be made that a freer market in nuclear weaponisation technology and a freer hand the US has in it would make the entire process much more overt as opposed to the covert actions that simply cannot be monitored in any reasonable process.

Issue 2. Would the US be better off on a pure domestic interest assessment?

Two arguments I made here. Firstly, that the ban on testing (and thus necessisating computer simulation instead) made the nuclear arsenal unsafe whether because of the unknown quality of the weapons tested way back a couple of decades ago, or the efficacy of the ones developed since them and upgraded on the basis of computer simulations. Cue your usual doomsday arguments here, although I seriously doubt that nuclear weapons can spontaneously combust. The real problem is their military efficacy, especially if it blows up in the silo itself.

Second, this would free up the US to develop tactical nukes. I called it the "shock and awe for a New World Order". But seriously the agrument was not simply that tactical nukes are good,[3] but more that the US should have a free hand in determining their nuclear weapon R 'n D.

But the biggest and most complete rebuttal to that is that if the Status Quo works fine then this opens Pandora's Box in terms of the proliferation of nuclear weapons and thereby making the US much much more unsafe.

Issue 3. Would the world be a safer place if the US had a freer hand in helping and aiding not just its allies but also in dealing with its enemies?

It boils down to the US not having to play nudge nudge wink wink with such things as the nuclear cooperation treaty they signed with India [4] and actually helping its allies to ensure the nuclear option goes through smoothly and that there are proper transfer of the latest technology and regulations for safety and efficacy and speed reasons.

Alternatively, if the remaining Axis of Evil wants nukes to deter the possibility of an US attack then give them nukes and hopefully that would be enough and be the end of it.

But conversely, do we really want to encourage the proliferation of such weapons? Stopping the proliferation is not impossible but the states need to get their priorities in order. And right now, the fear of the collapse of North Korea is what's staying China's and South Korea's hand. Giving NK nukes or helping them with it is not going to help matters any and could possibly make it impervious to reform and pose a real threat further down the line.

The fact is, the US abandoning the NPT will prompt the other nations in abandoning it as well and there will be a general proliferation of such weapons. MAD only works if the system works. Kashmir and not the Taiwan Straits is the most dangerous place on earth because Pakistan and India simply don't have the Command and Control system that would make the MAD system work. Once you get twitchy about the fact that you dont have second strike capabilities, the imperative is going to getting the first strike out. And handing control over to your field commanders is arguably a very very bad idea. Under the stress of battle, it's a sure fire way of overreacting. And when you're just next door, you simply have no time to react to incoming missiles till it's too late.

Maybe, just maybe we can stem the tide here and now. But I'm honestly not too optimistic about it just yet.


[1] Their deceptive actions count against them, as is their outright rejection of Russia doing the uranium enriching for them instead on Iranian soil, and there's that fact where the nuclear sites being situated don't seem to be able to reach any town if it were really simply going ot generate energy for civilian use

[2] Or 9, depending on whether one counts Israel

[3] To be honest I'm not sure that small nukes fitted on bunker busters are actually better than the conventional stuff, even excepting the radiation fallout bit

[4] And thereby legitimising its nuclear arsenal and opens them up to criticisms of yet more double standards. But conversely why not? If you're fit to have weapons then go ahead, if not, the world for its own sake should strive mightily in preventing from laying hands on them.


Saturday, October 14, 2006

Free Speech, Free Expression and Truth in History

IHT: EU backs Turkey over French law

I've been following this situation fairly closely because it touches on a number of things I hold dear to my heart. Unfortunately, one of them is the right of people to be wrong.

But just some quick background facts:
1. French lawmakers passed a law that would criminalise the denial that the killing of Armenians in Turkey prior to and during WW1 constitute genocide. This is inline with their criminalisation of Holocaust denial and general ban of anything related to the Nazis (I'm thinking here of the flareup that occur just before 2000 over the auction of Nazi memorabilia on Yahoo!France).

2. Turkey has punished its authors and intellectuals when they make the claim that it does constitute genocide on the basis that it is a insult to the Turkish identity.

3. The French President's party refused to have anything to do with the vote and is unlikely to approve it in the end. The former spokesperson for President Jacque Chirac and current Minister for European Affairs claims that it is not for the law to decide history.

4. The EU (senior EU officials) has come down on Turkey's side. The article unfortunately makes the argument purely on the basis of it being counterproductive to talks and enlargement etc. etc. and nothing whatsoever at all on Free Expression or Speech. Which is not very surprising if one considers the ICCPR (Internation Covanent on Civil and Political Rights) has abrogated hate speech as a category of protected speech or expression.

So as always, let's start with the principles of free speech and expression. There are a quite a number of justifications for such freedoms.
1. Justification from truth a.k.a. the Free market place of ideas. No one has a monopoly on Truth and it is in the clash of ideas that the closest approximations we have to the Truth emerges.

2. Justification from self autonomy/realisation. A person is what he thinks and expresses and a person if he is to be a truely autonomous being as opposed to a simple cog in the wheel of the majorty/society must be free to express what he thinks right.

3. Justification from Democracy. I like this one. We live in a Represenative Democracy and voters need to information in order to vote in an informed fashion. Free speech and expression provides those.

4. Justification from fear. Who do you trust to make censorship anyway? I don't even trust myself. Power corrupts and absolute power corrupts absolutely. MM LKY made some incredibly eloquent speechs while he was in opposition. As did Prof Jayakumar when he was still an academic.

So with all those in place, what can we say about hate speech (which I put denialist under because they tend to have hated as a basis for their denial). So let's take each principle and see how they weigh up.

1. Truth. Can we not simply say that somethings are so proven that they are true that there really is no point in allowing denialist material as all they do is to muddy the waters and then claim "Aha! Therefore it can't be true" (very like Intelligent Design and Creationism by the way). And as a result, it creates a fish market of ideas rather than a free market, such that even rational intelligent people may be fooled given they lack the time to investigate all claims and tend to rely on authority (rational ignorance is the Public Choice School's term for it).

I think there is much force in this argument, seeing that I do sometimes despair of my fellow people (yeah yeah, I'm in an elitist misanthrope mood today). But I think that's simply a very defeatist attitude and playing to the lowest voter sets off a vicious spiral from which debate never recovers. And I think the clash of ideas is very important, I now know more than I ever want to know about why ID and Creationism is simply wrong and unscientific (and in the process I learned loads about Evolution and the Philosophy of Science and Theology), why Holocaust Deniers are wrong as are the Anti-Vaxers and some others.

2. Self-autonomy and realisation. Is there any worth in allowing people to hold eroneous and potentially dangerous ideas? The current canard holds that "People are entitled to their opinions". Actually no they're not. An opinion is supposed to be predicated on facts. If you're wrong, you're wrong.

But having grown up in the era of "Asian Democracy", where Liberal Democracy was considered dangerous etc. etc. I have sympathy, not with the ideas these people hold BUT with the concept of letting debate reign. In the end, people can change their minds with sufficient evidence and when that happens, the truth is all the sweeter for it.

3. Democracy. Alright, I hesistate to invoke Godwin's law here but the Nazis came to power was not only through the democractic system (and subverting it from within) and because the system provided a platform for such anti-democratic hate platforms to win.

My counter argument to that is that it creates a mainstreaming and release valve effect. The Green Party is Germany was truely radical but under the influence of the moderating power of the electoral system, they have become much much less so, while still being radical enough to stay true to why they were formed in the first place and as long as they exist, there is no reason for people to drift to ever more radical factions and this is a incredibly valuable effect. Not to mention, they provide a sane voice and allow people to blow off steam without actually thinking of destroying the system in order to get their views heard.

Anyway, when they're in the open. It's a lot easier to mock and laugh at them.

4. Fear. It's narrow, all it does is to criminalise Genocide Denial, nothing more. There is nothing wrong with criminalising a dangerous idea.

Counter. The slippery slope rules, first the Nazis, Holocaust Denial, now Genocide denial, what's next? Remember, what is sauce for the goose is sauce for the gander. The Sedition Act may be well and good one may think, but when one falls outside of its protected classes or when it's used against views you hold dear and are in fact right...

Simply put. You're screwed.


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Friday, October 06, 2006

*Back to Debate - Immigration*

So after a month or so layoff from debate and itching to speak during the last two demonstration debates at UWSDS (University of Washington Speech and Debate Society), I finally got my chance. My enthusiam must have been more than evident as the coaches had no hesistation sticking me into the practice round.

The only problem was the following resolution/motion That the US Federal Government should adopt a policy restricting immigration. Of course, to all the experienced debaters there it shouted, US-Mexico illegal immigration problem. The problem is that as a globalist and globalisation supporter and frequent reader of the Economist and the so-called Liberal Mainstream Media, all my arguments were for the other side. And trust me, I have really good ones, you know the ones which I actually have data to back up.

Nevertheless, I took the plunge and for some strange reason, I decided to run a very hardline stance that was just chilling. As it turned out, the President has signed the bill for the erection of a 700 mile high tech fence to plug the rather leaky sieve that is the US Southern boarder. I wanted to run solely that but as it turns out, that's advocating the Status Quo which doesn't really fit into the notion of policy debate (I sort of agree but I think that should not apply to recently passed policies as opposed to one that has been in place for ten years. BUT there are very respected debaters and adjudicators who think otherwise and they determine whether you win). So on top of the fence, I advocated sending another 10000 troops drawn from the reserve national guard with a shoot to kill policy.

Yup. With predictable fallout.

But there was a reason to the madness. Basically one of our main arguments was that the situation now undermines national security. Simply put the conduits that bring in people across the boarder undetected can also be used to smuggle in weapons, drugs and terrorists with weapons of mass destruction (note to self, pick up US geography stat). Therefore, if you attempt to cross the boarder, we will treat you as a potential high level threat and shoot to kill.

The problem with that policy is that I left out a whole bunch of qualifiers. Now, it's one thing to have a shoot to kill policy along the 66th parallel (the truce line between North and South Korea) but is militarisation of that extent necessary along the US-Mexico boarder? Well according to the logic above yes. But what I needed to have done was to talk about things like Rules of Engagement i.e. the officials rules that one must adopt when confronted with another person. Most of it involves warning shots and than incapacitate before shooting to kill (yeah, I got one of those cards. Why a combat medic would ever be in that situation is beyond me).

But very quickly now, the remaining arguments.

One was that illegal immigration undermines the Rule of Law which in turn is a bedrock principle of Democracy and civilised nations. Not to mention a real infringement on sovereignity and territorial integrity. They are "illegal" after all. The counter to that really is that it confuses what the law is and what the law ought to be and I think I didn't develop that argument too well. The better argument is that it creates a web of illegality i.e. you have to keep your head down and everyone else who closes a blind eye is complicit in the illegal act. The problem with that argument is that if once it's not illegal you won't have that problem. The analysis isn't so trite. The idea is that the very illegality of the action causes the harm i.e. it's not the act that is itself harmful.

And of course Economics. Hurting low-wage, low skilled workers who are particularly vulnerable because of their situation, race and in a globalised world. Nevermind that only 10% of Americans don't have a high school diploma and nevermind that most Americans don't want to do the work and nevermind that entire industries are reliant on them because of the situations.

But oh, we argued thatit prevents real economic reform to solve structural unemployment and help with welfare and social security reform. Heh.

But yes, still feeling the rust and definately not on par with the performance I had during the ProAms back in NUS slightly more than a month back. But I am back and I will be at the Worlds.



Sunday, October 01, 2006

*Reverse Discrimination*

This could be a serious post whereby I explore whether one ought to take advantage if one should be the beneficiary of reverse/positive discrimination. Off-hand my answer would be whether one could NOT take advantage of it in the same way one could NOT be discriminated against on the basis of whatever it is you're being discriminated against for.

Well this is going to be more of a personal reflection on the sort of advantages I get because of my ancestry and accent. I'm Chinese by ancestry and Peranaken by ethnicity (yes there is a difference) and my accent is a mix between the Peranaken accent and a British one. Which gets me a whole lot of questions on it in normal conversation, mostly on whether I'm Singaporean, educated abroad, was of mixed race etc.

But I admit that there are massive benefits to having what some might associate as having a cultured accent. I mean if I don't deliberately tone it down, I get fantastic service over the phone as though I should get some form of automatic deference (works well with the civil service I found).

Over here in the States there is arguably some form of auxillary benefit although that is tempered by the fact that quite a few Americans have problem understanding what I say. But the idea is that by virtue of my better than average English and by sheer fact that I by no manner sound American, it does actually help. And yes, there's always the frequent question of where I'm from. Go Singapore! And no, no one has asked me where that is.

Anyway, one thing that I have already mentioned is that of language. There is effectively no barrier as compared to someone whose English is not their native language (yes yes I know we have 4 official languages).

The second thing is that of my ancestry. What I understand is that being "Asian" does in fact help in things like off-campus apartment search. We are presumed to be studious and nice and good and not going to have wild parties etc.

Arguably, when you combine the both of them, it makes you a circus freak...oops, I meant a freakish curiousity, *ahem* I meant unique and in a good way. *Snort*

Of course it also could mean one of two things, a) you either fit in regardless of whom you hang out with or b) you'll never fit in regardless of whom you hang out with.

And with that little nugget for thought, Peace.