Tuesday, May 31, 2011

Coptic Christian Egyptian Blues

Jonathan Tobin/Contentions/05.31.2011

As the New York Times report about the fears of Coptic Christians makes clear today, the increasing influence of Islamists in Egypt in the wake of the collapse of the Mubarak regime calls into question the security of non-Muslim minorities. Some will simply ascribe the tragedy that seems to be unfolding to the perils of increasing democracy in societies where there is no tradition of either genuine religious freedom or the rule of law. That may be true, but Egypt’s problem runs deeper than merely blowback from the Arab Spring.

The role of the ahl al-dhimmah—religious minorities protected in principle under Muslim law but still subjected to discrimination and often mistreatment—is the kind of topic that those who wish to promote good relations with the Muslim world often treat as out of bounds for civil discussion. The mere utterance of the word dhimmi is enough to risk an unfair accusation of anti-Muslim bigotry. Yet it goes to the heart not only of Egypt’s problems but those of the Middle East in general.

Although they make up approximately 10 percent of Egypt’s population, Coptic Christians understand that the sensibilities of the Muslim majority are such that any assertion of equal rights or self-defense against discrimination is treated as a blow against Islam that will not be accepted. Thus, they must hope that whatever government emerges from the post-Mubarak transition will be able to protect them against the whims of an intolerant majority.

At the same time, it must also be understood that much of the anger against Israel in the region has little to do with disputes about borders as it does with revulsion against a Jewish majority state in which Muslims are the minority. As it happens, Israeli Arabs have, as has often been pointed out, more democratic rights (including the right to vote and hold office, seek legal redress in independent courts, and speak out via a free press) than those living in any Muslim country.

But the idea that the Jews—who were reduced to dhimmitude in the Muslim world for 13 centuries—now rule over even a tiny portion of that part of the world is simply unthinkable to many Muslims.

Concern about the safety of the millions of Christians in the Egypt that will emerge in the coming months needs to be an integral element to U.S. policy toward that new government. But those who care about Middle East must also understand that the same dynamic that drives discrimination and violence against the Copts is just another aspect of the same ideology that refuses to accept Israel’s legitimacy and keeps alive the war against the Jewish state 63 years after its rebirth.

Friday, May 27, 2011

D'Alimonte v. Porretta, 2011 ONCA 307 (CanLII)


Can it be argued that this case stands for--can be expanded to stand for-- the proposition that fraudulent non disclosure of material facts contradicting material allegations in a Statement of Claim may ground a summary dismisssal of action by reason of that non disclosure?

Thursday, May 26, 2011

Paul Berman on DSK

The Dominique Strauss-Kahn Shipwreck

What will happen after American justice and French conspiracy theories collide?

Paul Berman/May 26, 2011/TNR

The Dominique Strauss-Kahn case is headed toward a dismally predictable shipwreck, and I wonder what anyone is planning to do about this. The punctilious fair-mindedness of the trial may well turn out to be obvious to everyone who grants the possibility of such thing. The world nonetheless contains entire populations whose assumptions about American justice, despite years of Law & Order, tend to exclude the possibility, and we ought to ask ourselves how those people, the skeptics, are likely to respond to the coming series of events.

Those people, the skeptics, are going to listen to Strauss-Kahn parry his prosecutors, and they are going to discover that Strauss-Kahn is eloquent. They will discover that his lawyers command abilities of their own, which will turn out to be no less devastating to the prosecution than were, say, O.J. Simpson’s lawyers. The skeptical populations will cock an ear to Strauss-Kahn’s champions in the French press. The champions will turn out to be some of the most talented writers alive.

The talented writers will argue that American justice is brutal and peremptory (and, to be sure, this argument has already influenced the trial, and the French journalist who has accused Strauss-Kahn of attacking her in 2002 has announced, through her lawyer, that she will not testify in the New York trial because “the presumption of innocence does not exist in the United States”).

The writers will argue that American ideas about sex are too primitive to be taken seriously (and, to be sure, the American press is already full of long-winded parallels between actual violence, or what is said to be, at the Sofitel Hotel, and the former governor of California’s history of deceiving his wife).

The skeptical populations will take note of the New York tabloids and their headlines, which may well be intended semi-humorously by the editors; but one man’s witticism is another man’s exercise in moronic xenophobia. And the skeptical populations will conclude that, in the Strauss-Kahn case, the victim and hero is Strauss-Kahn himself—the defiant victim of the American lynch mentality, of America’s sexual primitivism, and of the gutter press. This will lead to a political thought.

It is no small thing to seize the most electable person from one of America’s principal rivals around the world (as France sometimes likes to present itself) and lock him up. To arrest the dictator of Panama and throw him in a Florida jail, to scoop up Saddam Hussein’s pistol and award it to George W. Bush as a kind of shrunken-head cannibal trophy, to bomb places where Muammar Qaddafi is thought to be and kill his son and grandchildren—that is one thing. But what if there is a pattern? The sovereignty of Pakistan… And if France is thought to have fallen within the pattern?

The French left has been exiled from the presidential Elysée Palace since 1995, which suggests that, in a democracy whose bona fides, like those of any democracy, depend on political rotation, the time has come for Nicolas Sarkozy to lose. And he did seem headed for defeat, especially if Strauss-Kahn were the Socialist candidate. Here is something to consider.

In America, not even the historians remember that French anti-Americanism got started in the 1830s as a result of a decision by the Andrew Jackson administration to insist on getting reimbursed by the French for the many American ships that France had seized during the time of Napoleon.

The Jackson administration was entirely justified, but not in the eyes of the French, and the resentments lingered long enough to become a cultural tradition. Even Lamartine, the poet-politician, who was pro-American, turned anti-American on this issue.

So now, America will lock up the Socialist candidate, and the Socialists may be go down to defeat in 2012, and, regardless of the American justification, how would you yourself respond, if you were an ordinary Socialist voter and had spent the last 17 years stewing over the triumphs of the right?

And now that I have uttered the word “Socialist,” I wonder how the Greeks are going to respond if, in the post-DSK era, the International Monetary Fund, no longer led by a kindly Socialist, ends up taking a harder line on the Greek economy? And the Portuguese?

I don’t mean to suggest that, in France or Greece or anywhere else, no one is capable of comprehending that even barbarous America has laws, and chamber maids, rights; and not everyone is eager to rally behind the French political elite. Still, it is worth recalling the success of September 11 conspiracy theories in France.

A preposterous credulity about the American willingness to murder thousands of Americans proved to be amazingly widespread, for a while. What will be so hard to imagine, then, about a far more modest conspiracy directed against a single individual, who will not even be put to death, but, if convicted, will merely be incarcerated, either for a long time (indicating the depth of American cruelty) or a short time (indicating a plot within the plot)?

If I may propose a conspiratorial speculation of my own, I wonder how many publishers all over the world, the desperate upstart hopefuls, are already searching for conspiracy-theorists to produce their journalistic tomes on the American arrest and trial of Europe’s most powerful Socialist by the henchmen of a sinister American cop named Raymond Kelly, chief of the New York Police Department and agent of capitalism.

And if the man turns out to be innocent? The damage, in that case, will end up greater yet, though maybe not so long-lasting, as when the U.S. Air Force bombed the Chinese embassy in Belgrade during the Kosovo War. (We apologized.) But assuming the general accuracy of what has already been reported, Strauss-Kahn’s own ardor for defending himself will only succeed in compounding the original crime with a political crime.

I suppose there is no point in asking him to interrogate his conscience, any more than there is in asking the editors of the New York tabloids to rethink their headlines. Maybe there might be a point in asking Strauss-Kahn’s champions in the French press and among the politicians to reflect on what they themselves are doing. The more he is defended, the thicker and chillier will be the trans-Atlantic fogs, in the future. Dear champions of DSK, réflichissez-vous! But no one is going to reflect.

Anyway, a bit more caution on the part of his loyalists would scarcely help, at this point. The ocean-liner of American justice and the ice floes of French conspiracy theories are already bobbing in one another’s direction, and nothing is to be done about it, and, oh dear, has anyone figured out what to do next, post-collision?


I’m with the estimable willjames77 on this one but I'm less forgiving him than him on this short piece of silliness and irrelevance.

I'd venture the thought that this piece is evident of a pervasive weakness in some of Berman's writing, much of which I mightily admire. That weakness is this: to overload the abstractions of consequence that he imagines ineluctably flowing from discrete events.

Leaving American crazed sensationalist culture to the side, this is an instance of the magnificence of the American justice system and its foundation in the rule of law. A man of immense power, rank, wealth, influence, status and privilege is accused by her of having raped an American hotel chamber maid. She follows due procedure, reports it to her employers; they call the police; the police investigate; they in conjunction with the relevant District Attorney exercise their discretion and arrest him and charge him. His case will be disposed one way or the other and his legal guilt, if any, will be determined or plea bargained as the case may be.

Nuts and fools, including French intellectuals like Bernard Henri Levy, will draw whatever nutty and foolish inferences they are prone to drawing. The world will go on quite the same regardless. And the above piece, like the foolish inferences, will comprise just so many words on a page, so much hot cyber air, so to speak, just so much talk, talk, talk that will all in short time passing be as dust in the wind.


Respectfully, Bernard Henri-Levy is not a fool.

He's brilliant - and - he had a point about le perp walk.

It's damning. So too, all too often, is the treatment of people who for whatever reason wind up in the slammer especially if they haven't even been formally charged yet let alone tried and found guilty.

A long time ago, my then-boyfriend got arrested for something or other involving his ancient VW bus. He looked like a hippie and mouthed off at the cop so he wound up in jail for the night. I went the next morning to court and he was paraded out with the other "guilty parties" wearing a bright orange jumpsuit with huge black letters spelling "JAIL" about 8 inches high, in case there was any doubt as to where he'd spent the previous night. He looked guilty as sin, lined up with all those other guys in their orange jumpsuits with the big black letters - JAIL - on the back and on the chest - whereas supposedly he wasn't, yet.

Anyway, he wasn't done with the legal system. He stood up and started the lecturing the judge about human rights, the presumption of innocence etc; I'll never forget the sight of ol' Ted standing there in his orange jump suit with JAIL on the front, and the American flag and the Colorado flag draped majestically, and the judge sitting there dumbfounded while Ted lectured him on the Constitution. Fortunately he had a sense of humor so I was able to make bail and get Ted out of there and back to the sunny streets of Boulder.

So it was scary and funny and embarrassing but - Ted was right and Henri-Levy was right about the fact that a person made to look guilty whether he is or not is also a victim and in this case, he's preemptively lost his career and also his future.

What if he is innocent?



This is what Levy actually says, in part, respectfully:

...This morning, I hold it against the American judge who, by delivering him to the crowd of photo hounds, pretended to take him for a subject of justice like any other.

I am troubled by a system of justice modestly termed “accusatory,” meaning that anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact....

Here's part of my argument written to someone elsewhere for his foolishness and offensiveness:

...I understand your explanation of the investigatory system going to Levy’s concerns with pre trial notoriety irreparably damaging DSK’s reputation even if he’s acquitted or the charges withdrawn. And that is part of the some I think is a well taken concern. But I wonder this: you say: “…because there is nothing like a “juge d’instruction,” an impartial magistrate who weighs both the evidence ‘à charge” (accusatory) and the evidence “à décharge” (disculpatory) in order to get to the bottom of things before the trial even begins.”

I don’t know enough about these procedures to comment on them, but is it fair to say that that what the magistrate does before trial can be likened to Anglo-American police and prosecutorial investigation before arrest? Under the French system, I’d imagine, once the Magistrate “binds” the “accused” over for trial, the raft of publicity, if any, will follow. On this basis, what is the functional difference between the two systems, save for timing, as to publicity, such as it may be in any case, erupting, with all cultural allowances for what may pique national interest.

My questions tie into Levy’s first j’accuse: “This morning, I hold it against the American judge who, by delivering him to the crowd of photo hounds, pretended to take him for a subject of justice like any other.” I took strong exception to it when I first read it. And I’m not persuaded that seeing Levy’s comments as informed by French law abates my response. More, he’s incoherent here.

Unless I’m missing something particular in this case, no judge does what Levy holds against this judge. The accused has been investigated; discretion has been exercised to charge and arrest him; a grand jury—if the is a case that goes to one—will have brought in an indictment. The first judge simply arraigns the accused, takes his or her plea and then decides on bail. So how does this judge deliver DSK to the photo hounds? And now Levy becomes offensively ridiculous: what can he possibly mean when he says this judge pretends to take DSK to be a subject of justice like any other?

I reject the rationalization of this comment as either—your burdens—sensible or made sensible in light of French procedures. The subject judge is pretending as to nothing. DSK is precisely a subject of justice like any other. American law demands nothing less than that as I assume does French law. Levy’s complaint is that DSK is above such equal treatment by virtue of whom, goes the point, he exemplarily is.

Underlying this elitist tripe is Levy’s category error: he conflates American legal procedures with a crazed American sensationalist culture, the latter well worth decrying. So, in my view, respectfully, you haven’t met your burden of argument here.

Levy’s second j’accuse is also deeply problematic: “I am troubled by a system of justice modestly termed “accusatory,” meaning that anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact.”

Sorry, but again this is neither sensible nor made so by reference to French law. Levy is correct that anyone can accuse another of a crime. But then Levy falls of a logical and empirical cliff because he posits that that accusation leads to arrest, charges and indictment.

He omits the investigation that takes place after the accusation has been made. He omits the discretion that is exercised in the decision to proceed after that investigation. He omits that the preponderant majority of those indicted is found, or pleads, guilty. He (again) conflates public perception of guilt and innocence with legal determination. He omits the presumption of innocence as it operates in the American administration of criminal justice. He omits that an accused may admit to his lawyer that he is 100% guilty but he wants to plead innocent and can in perfect theory and perfectly ethically be acquitted.

It may be in that the court of public opinion the accused is presumed guilty but clearly not so in law. But it is the American system of justice that is pilloried in this second j’accuse. Levy’s outrage here is rooted in his ignorance or else bad faith for what he pretends not to know and French law in no way saves him...

Your thoughts?


I think, when you cut through the verbiage, that (judging from what I've gathered) a lot of people in France believe that DSK was set up.

I don't know if this is true or not. But, it's affecting the dialogue, for sure, and not just from intellectuals - hence, Berman's article. Now, I would hope that US/French relations are stronger than this - nevertheless, there is a point to the unease. Part of that point is perhaps a sense that America is hypocritical.

And, going a step further with the BHL thesis that DSK isn't an ordinary presumed criminal (or presumed innocent - which is it?) one could argue that, as a person in the US is innocent until proven guilty, ALL people who've been arrested should be treated as innocents (not just important people). Flip Henri-Levy's argument upside down and you'll see what I mean - what HE means I think.

The other side of the story about my fiancee - that night in jail. It was clearly a bad night. Things happen to people in jail and at the hands of the authorities.

So, this isn't just about DSK. It's about the rights of people who've been grabbed, for whatever reasons, by the authorities. It includes especially those who can't get out of jail on bond, people who might be stuck in jail for months or even years until they go to trial.

Extend what BHL is saying here - haven't many of us been arguing the same for people in Gitmo? But also - things happen in our judicial system - real brutality at the hands of police, devastation of reputation - but also - brutality in the prison system.

So, step back a minute from the personalization here - and I do understand what many are saying about DSK and the presumption that because he is powerful he should still be given the same treatment as anybody else - but stop and think - what does that treatment really entail? especially in a system where we are supposedly innocent until proven guilty.

The fact is, whether you're DSK or Ted, you are not TREATED like an innocent person and the consequences can be dire.

Am I right? Isn't this an issue?



How can anyone take seriously the possibility that DSK was set up? Such supposing is a mode of conspiracy theory nuttiness. Any French intellectuals promoting such a notion are fools for that. (I haven’t read BHL to claim this, btw.) I’m not sure what you mean when you say, “I don't know if this is true or not.” If you mean you hold to the reasonable possibility he was set up, I’d have to say that surprises coming from someone so seemingly sensible. Is that really what you mean?

Given that I think a set up is wildly improbable—who would have engineered it; under whose authority; by what web of connectedness: it’s all too absurd to contemplate—it marks the unreality of Berman’s piece, in answer to your “hence Berman’s article.” There is, I’d argue, “no point to the unease.” To think there is a point, you logically have to give credence to the reasonable possibility of a set up—which I don’t think anyone can, as I just said.

You say, “Part of that point is perhaps a sense that America is hypocritical.” Again, I’m not totally clear on what you are saying. What do you mean by “American hypocrisy?” Do you mean such hypocrisy that it informs such an “unease” that it’s reasonably possible, reasonably contemplatable, that American power at its (presumably) highest levels conspired to set up DSK? This speaks to a paranoid view of America with shades in it of 9/11 truthism.

I don’t think any of the foregoing bears any connection to BHL’s argument, which seems discrete and separable. As I say, I don’t see him advancing any notion of a set up. So I don’t think you’re going a logical “step further.”

There’s a distinction to be drawn in what might be characterized as part of Levy’s “argument.” (He’s quite non-linear.) Levy both: special pleads for DSK as too important, accomplished, sterling (supply your choice of superlatives) to be treated like other less superlative accuseds—a notion to be rejected out of hand, I strongly assert; and criticizes histrionically a criminal justice system that purports to presume people innocent but treats them as though it presumes them guilty.

The first side of the distinction is contrary to the demand of equal treatment under law and the rule of law. While pre trial procedures, including bail, have to be conditioned case by case in the circumstances of each case, no one should get differential treatment by virtue simply of who they are. When that happens, and of course it does—the administration of criminal justice is a human institution and is as fallible and imperfect as people are—it is to be loudly condemned as outrageous, the very opposite of for what America stands.

The second side of the distinction, DSK, ironically, as everyman, goes to what might be read as Levy’s systemic critique grounded in the failure to abide by the presumption of innocence. Quite frankly, Levy does not know what he’s talking about. The presumption of innocence is a rule of evidence for criminal trials putting the onus and burden of proof on the state to prove its case beyond a reasonable doubt. The presumption does not control every step of pre trial procedure including what is most instructive on this point—bail.

On Levy’s reasoning, it seems, no accused would be confined to jail before trial because of the presumption of innocence. Bail tells the tale otherwise. The bail judge entertains a host of considerations on whether to confine an accused, release him on his own recognizance or conditionally. They include the seeming strength of the case, the seriousness of the charges, the risk of flight, roots in the community, the seeming danger posed by release, and other conceptually related factors that havenot so much to do with the presumption of innocence.

That abuses occur, that mistakes are made, that the state’s power overreaches itself, that the indigent are especially prone to that overreach, that some of these errors are amplified in a culture crazed with sensationalism—of course. That all of this does not vitiate an entire system of criminal justice administration—equally of course. Every person arrested has the constitutional right to counsel which entails being represented by, at a minimum, a public defender at a bail hearing so that the question of pre trial confinement can be judicially determined.

Typically people aren’t “grabbed for whatever reason by the authorities” though sometimes they are. Certainly DSK wasn’t. Typically people aren’t detained for years before trial and if they are detained too long, they have constitutional remedies, including dismissal of the case against them, flowing from their rights under the Sixth Amendment.

Guantanamo is a distraction from these issues and doesn’t speak to them because it is an instance of the overlap and tensions amongst American domestic law, the law of war and the fact of war. It is disanalogous to the issues Levy raises and in fact, if you think about it, it highlights the glories of American law, the rights constitutional and otherwise, which get appealed to and argued for in the case of Gitmo detainees, the very rights informing the American administration of criminal justice which Levy vents against as a system.


"That abuses occur, that mistakes are made, that the state’s power overreaches itself, that the indigent are especially prone to that overreach, that some of these errors are amplified in a culture crazed with sensationalism—of course."

Really? "Of course" is ok with you?

As to American power - you really don't understand how this past 10 years or so has resonated with many around the world? People are afraid of us. We want to be Camelot but are we?
When people like Henri-Levy criticize us it is because they want to believe in our ideals.
PS - Basman, et.al., have any of you ever been in a situation with the authorities? Or been powerless in some way? I kind of doubt it otherwise you'd get at least SOME of these arguments.


..."That abuses occur, that mistakes are made, that the state’s power overreaches itself, that the indigent are especially prone to that overreach, that some of these errors are amplified in a culture crazed with sensationalism—of course."

...Really? "Of course" is ok with you?...

OK with me?????

Sorry: this does not follow/compute at all. Why does recognition of the existence of injustices have to mean acceptance of them? Why, does anything short of systemic rejection have to preclude inveighing, fighting, against those injustices?

What have the last 10 years--8, Bush 43; 2, Obama--made America that it was not before? This is hopelessly unclear and way too general. (Camelot is, and always was, horseshit, not to be taken seriously by any thinking person, including Levy. It is a criterion for nothing, measures nothing, save for those who dwell in fantasy.)

Three more things:

1. The motives behind BHL's criticisms are one thing-whatever they are. Who knows but him? But they don't help assuage the histrionic, scattered, emotive, declamatory and misconceived nonsense he sometimes writes as evident by the indefensible above from him, which defense you have not begun to make out.

2. I've, in fact, been powerless. I've been rousted by the cops, bullies, people in authority, others. More, I overcame all of that such I have acted for powerless people a fair bit in my professional life. So I don't need to contend with irrelevant asides about my biography to show I don’t even "get SOME of these arguments." What I need to show me that--and do not think I have received from you-- are meritorious arguments, as opposed to unhelpful, uncontextual and unspecified generalizations about American hypocrisy or peoples' fear of American power or whatever, in response to what I have said. I have no last word on wisdom or anything like it and am wide open to being persuaded by better arguments, evidence or the clear exposition of flaws in my own reasoning. But being told that I'm not getting something based on a mischaracterization of my own experiences is intellectually self refuting.

3. To cap that, I note no substantive response whatsoever to anything I have argued

Tuesday, May 24, 2011

Similarities and Differences Between Obama's and Netanyahu's Positions

How far apart are Obama and Netanyahu really?

William Galston

May 25, 2011/TNR

In his State Department speech last week, Barack Obama threw down the gauntlet to Benjamin Netanyahu. In the Oval Office a day later, and more fully in an address to Congress yesterday, Netanyahu picked it up and threw it right back.

The question now is whether this clash can be turned into a new understanding between the United States and Israel that improves the prospects for the two-state solution both parties say they want. To bring this about, Obama will have to make further tweaks to his approach and rethink his declared stance on Palestinian refugees, among other matters. For his part, Netanyahu will have to accept the fact that events have overtaken key aspects of the 2004 agreement between the Bush administration and former Prime Minister Sharon. If peace is possible, it is only along the lines former Israeli Prime Minister Ehud Olmert and Palestinian President Mahmoud Abbas explored during their 2006-2008 negotiations.

Obstacles to such a meeting of the minds between Obama and Netanyahu begin at the personal level. Whatever they may say in public, these two leaders genuinely dislike each other. Obama regards Netanyahu as an untrustworthy obstructionist; Netanyahu regards Obama as a blundering naïf.

Second, they disagree about the prospects presented by the status quo. Obama believes that changes on the ground have made it more dangerous to stand pat than to move forward, while Netanyahu believes the reverse. Obama, to his credit, has offered a clear and coherent argument for his position: The demography of the West Bank is shifting to Israel’s disadvantage; technological changes are making it harder for Israel to defend itself in the absence of genuine peace; as democratic movements surge throughout the Middle East and North Africa, Arab publics must see that peace is possible; and as the “international community” is becoming increasingly impatient, Israel is becoming more and more isolated. Resuming peace talks, the argument continues, is the only way of heading off a confrontation at the United Nations this summer that will leave Israel and the United States standing alone, not only against the developing world, but most of Europe as well.

For his part, Netanyahu believes that the turmoil in North Africa and the Middle East makes peace harder, not easier, to achieve and renders the status quo, for all its imperfections, the safer option for the time being. Until a new regime is established in Egypt and new leadership takes power, the future of the Israeli-Egyptian peace treaty—a linchpin of Israel’s security—will remain in doubt. The widening gulf between Israel and Turkey’s Islamist government is disconcerting. It may well be that changes in the region catalyzed the rapprochement between Fatah and Hamas, which only made a bad situation worse.

In addition, the two leaders have different views of the forthcoming UN vote on Palestinian statehood. Netanyahu is prepared to tough it out, even if the Europeans break toward the Palestinian side and only the United States is left to stand by Israel. That is the scenario Obama is desperate to avoid. If America is put in the position of being the last obstacle to international recognition of a Palestinian state, Obama’s aspiration to improve relations with the Arab and Muslim world would probably be thwarted for quite some time. Netanyahu doesn’t think that’s a problem; Obama does.

Even if these differences of perspective could be set aside, however, there’s a third problem: Obama and Netanyahu disagree about the conditions on which Israeli-Palestinian negotiations can and should resume, and the terms on which it should be resolved. Netanyahu’s baseline is the letter President Bush gave then-Prime Minister Sharon on April 14, 2004 as part of a sequence of events including Israel’s withdrawal from Gaza and the construction of its security fence. Here, verbatim, are the relevant portions of that letter:

“The United States is strongly committed to Israel’s well-being and security as a Jewish state.”
“As part of a final peace settlement, Israel must have secure and recognized borders, which should emerge from negotiations between the parties in accordance with UNSC Resolutions 242 and 338.”

“In light of new realities on the ground, including already existing major Israeli population centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949, and all previous efforts to negotiate a two-state solution have reached the same conclusion. It is realistic to expect that any final status agreement will only be achieved on the basis of mutually agreed changes that reflect these realities.”

“[A]n agreed, just, fair, and realistic framework for a solution to the Palestinian refugee issue as part of any final status agreement will need to be found through the establishment of a Palestinian state, and the settling of Palestinian refugees there, rather than in Israel.”
“[T]he United States supports the establishment of a Palestinian state that is viable, contiguous, sovereign, and independent …”

It is against this baseline, which Israel’s right-wing coalition and its many American supporters cherish, that Netanyahu judged what Obama said at the State Department on May 19. Here are the corresponding sections from Obama’s speech:

“[A] lasting peace will involve two states for two peoples: Israel as a Jewish state and the homeland for the Jewish people, and the state of Palestine as the homeland for the Palestinian people …”

“[T]he borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps …”

“The Palestinian people must have the right to govern themselves … in a sovereign and contiguous state.”

“I’m aware that these steps alone will not resolve the conflict, because two wrenching and emotional issues will remain: the future of Jerusalem, and the fate of Palestinian refugees.”

This schematic comparison clarifies what is and what is not in dispute between Netanyahu and Obama. They clearly agree on a two-state solution, on the need to recognize Israel as a Jewish state, and (less clearly) on the importance of territorial contiguity for a Palestinian state. And whatever Netanyahu might wish, both Bush’s letter and Obama’s speech leave open the final status of Jerusalem.

The comparison also identifies key points of difference between the Bush and Obama administrations, and between Obama and Netanyahu. First, along with the vast majority of Israelis, the Bush administration believed that the refugee problem could be resolved in only one way: The refugees would have the right to return to the new independent Palestinian state, but not to Israel. By contrast, Obama explicitly left that issue open. Whatever his rationale, any Israeli government is bound to find that stance disconcerting. Obama surely understands that any significant flow of Palestinian refugees to Israel would be a deal-breaker. If he’s in the business of saying out loud what everyone already knows, this would be an appropriate addition to the list.

The other and better-known disagreement revolves around the formulation of the border issue. In the first place, Bush’s letter emphasizes “new realities on the ground, including already existing major Israeli population centers,” as does Netanyahu, while Obama’s speech is conspicuously silent about them.

Second, Bush’s letter speaks of the 1949 armistice lines while Obama speaks of the 1967 lines. Although these are in fact the same lines, the Bush formulation has the effect of emphasizing the provisional and de facto nature of the former rather than de jure character of the latter. The armistice lines cited by Bush reflect a cease-fire based on the military situation at a particular point in time, nothing more.

Third, Bush’s letter refers to UN resolutions 242 and 338, which are notoriously (some would say deliberately) ambiguous about the extent of Israeli withdrawal, while Obama specifies the 1967 lines as the point of departure. Having said this, when Bush spoke of mutually agreed “changes,” the context makes it pretty clear that the changes will be in relation to the 1949 armistice lines, i.e. the 1967 lines.

At the end of the day, then, the most significant difference between Obama and Bush, and between Obama and Netanyahu, concerns the American attitude toward large Jewish settlement blocs east of the 1967 lines. Bush explicitly resolved that question in Israel’s favor, while Obama leaves it open. In his address to Congress, Netanyahu declared that any territorial compromise would have to leave the hundreds of thousands of Israelis who inhabit what he called the “neighborhoods and suburbs of Jerusalem and Greater Tel Aviv” inside the borders of Israel.

He also stated, opaquely, that “other places of critical strategic and national importance” would also have to be incorporated into the Jewish state. In sum, he concluded, “Israel will be generous on the size of a Palestinian state but will be very firm on where we put the border with it.”

In addition, Obama addressed two other fraught issues at the State Department on which he does not see eye-to-eye with Netanyahu. He declared that “The full and phased withdrawal of Israeli military forces should be coordinated with the assumption of Palestinian security responsibility in a sovereign, non-militarized state.”

This formulation gives something to each side. However it might be timed, a full withdrawal of Israeli military forces would rule out an Israeli security corridor along the Jordan. On the other hand, the requirement that an independent Palestine remain non-militarized leans toward a key demand Netanyahu made in his pivotal speech of June 14, 2009, in which he explicitly promised to work toward a two-state solution. In his speech to Congress, however, Netanyahu took a tough line on both points. He stated that Israel must maintain what he called a “long-term military presence” along the Jordan River, and he insisted that any Palestinian state must be “fully demilitarized,” a standard which (as past negotiations have shown) is more rigorous than “non-militarized.”

Obama also created more problems for himself when he waded into another issue—the diplomatic implications of the Egyptian-brokered reconciliation between Fatah and Hamas. On Thursday, he put it this way: “Recognizing that negotiations need to begin with the issues of territory and security does not mean that that it will be easy to come back to the table. In particular, the announcement of an agreement between Fatah and Hamas raises profound and legitimate questions for Israel: How can one negotiate with a party that has shown itself unwilling to recognize your right to exist? And in the weeks and months to come, Palestinian leaders will have to provide a credible answer to that question.” This vague formula seemed to reopen issues long regarded as settled—in particular, the steps that Hamas would be required to take before it could qualify as a legitimate participant in negotiations.

The president and his advisors quickly realized that his Thursday language concerning Hamas was unsatisfactory, however, and they toughened it considerably at his speech at AIPAC on Sunday. He said that “No country can be expected to negotiate with a terrorist organization sworn to its destruction … we will continue to demand that Hamas accept the basic responsibilities of peace, including recognizing Israel’s right to exist and rejecting violence and adhering to all existing agreements.” (For good measure, he called on Hamas to release Gilad Shalit, an Israeli soldier it has held captive for five years.) For his part, Netanyahu told Congress that Israel would not negotiate with a Palestinian government backed by “the Palestinian version of al-Qaeda,” and he called on President Abbas to “tear up” his pact with Hamas as the prelude to any new talks.

As he flew toward America for his confrontation with Obama and pivotal address to Congress, Netanyahu basically had two basic options. The first was to stand fast to his prior positions on borders, refugees, and settlements and attempt to rally American pro-Israel sentiment, weakening if not isolating Obama. That’s the default position for risk-averse politicians in both American parties, and it’s a solid foundation for a Likud prime minister who wants to stand his ground. For now, that’s also the path that he has chosen, and it’s working. On Sunday, right before President Obama spoke to AIPAC, Steny Hoyer, the second-ranking House Democrat, delivered a speech that Netanyahu could have uttered virtually verbatim. On Monday, Senate Majority Leader Harry Reid treated AIPAC to what was widely regarded as a rare public rebuke of President Obama. On Tuesday, members of Congress of both parties gave Netanyahu a hero’s welcome.

There’s another option for Netanyahu, however. Between December 2006 and September 2008, former Israeli prime minister Ehud Olmert and PA president Mahmoud Abbas met dozens of times and substantially narrowed their differences, to the point that American bridging proposals might have sealed the deal. While it was predictable that the incoming Netanyahu government would choose to begin in a different place when it took office early in 2009, much has changed since then. In particular, the prime minister has learned that his right-wing coalition can be a burden as well as a blessing.

We will never know what might have happened if Netanyahu had been able to persuade Tzipi Livni to assume a leading role in a Likud-Kadima government. It’s pretty clear, though, that Netanyahu would have been able to dispense with the services of his odious foreign minister Avigdor Lieberman, whose party provides the current government’s majority. If Netanyahu wanted to be an historic statesman and not just a successful party leader, he would seize the opportunity to revisit that fateful choice and be positioned to resume some version of the Olmert-Abbas talks.

To be sure, as long as Hamas maintains its current posture, no Israeli government can possibly enter into negotiations. Strained legalisms about the PLO as lead negotiator will cut no ice politically because they don’t touch the core reality: There’s a difference between a true peace and a long truce. Unless Israel can be confident that the Palestinians want to end the struggle, not just postpone it, they won’t make necessary compromises. Nor should they.

But trust works both ways.

It’s far from clear that Netanyahu’s commitment to a two-state solution is more than tactical. It is one thing to declare it as a goal, another to do what is necessary to bring it about. If Netanyahu really means it, he should abandon the rhetoric that appeals to post-1967 religious ultra-nationalism, and he should adopt the product of the Abbas/Olmert talks as his baseline.

That would be the Palestinians’ moment of truth. In mid-2009, Olmert wrote that “To this day, I cannot understand why the Palestinian leadership did not accept the far-reaching and unprecedented proposal I offered them.”

That’s a fair observation, and an essential question. In the short term, Netanyahu has staked out a position he knows the Palestinians cannot possibly accept. But down the road, he should find out whether the Palestinians will say yes to the best proposal that any Israeli government could possibly make. And if they won’t, Israel and the United States should move on.

Whatever Does She Mean?

Emily Dickinson

I dwell in Possibility – (466)

I dwell in Possibility –
A fairer House than Prose –
More numerous of Windows –
Superior – for Doors –

Of Chambers as the Cedars –
Impregnable of eye –
And for an everlasting Roof
The Gambrels of the Sky –

Of Visitors – the fairest –
For Occupation – This –
The spreading wide my narrow Hands
To gather Paradise

Sunday, May 22, 2011

Language Matters

Michael Rubin/Contentions/05.22.2011

One of the more irresponsible press habits during the Iraq war was the inconsistent use of the passive voice. Americans might kill five Iraqis in an operation gone awry, but when a bomb went off in a school yard, the major networks and newspapers would passively report, “20 children killed in Iraq.” Never would they say, “Terrorists killed 20 children in Iraq.”

Over time, the message of the language matters: When people talk about the tens of thousands of civilians killed after Saddam’s fall, they ironically assumed American responsibility rather than realize that it was the terrorists killing Iraqis whom the Americans and Iraqi government jointly were fighting. To abandon Iraq amidst the terrorist insurgency would not (and will not) bring peace and security, but would be the equivalent of handing Cambodia to the Khmer Rouge.

In the Arab-Israeli conflict language also matters. Israel’s borders today are the 1967 borders, modified only by the annexation of Jerusalem and the Golan Heights and some minor arbitrated settlements with Egypt, Jordan, and Lebanon. Why do we talk about President Obama demanding that Israel go back to the 1967 borders when he technically means withdrawal from the West Bank and portions of Jerusalem to return to the pre-1967 border, i.e., the 1949 Armistice Lines?

Technically, the West Bank is disputed territory, not occupied territory. There was no independent Palestine in 1967 before the Six-Day War. The status of the territory was just as unresolved before 1967 as it was after. If the Israelis “occupy” the portions of the West Bank unresolved under Oslo and subsequent accords then the Palestinian Authority also “occupies” those areas. To resolve the dispute takes negotiations and compromise, not mob rule or executive fiat. Make no mistake: I personally favor a two-state solution and believe that Israel will not ultimately possess the entirety—or even the majority of the West Bank—but I also believe that after so many wars launched from the West Bank, peace requires defensible borders, not an advanced front line for Arab, Iranian, and perhaps Turkish rejectionists bent on Israel’s annihilation.

Along the same lines, the term settlement shows tremendous bias. If portions of Jerusalem are unresolved, then new Palestinian construction on disputed lands are as much “settlements” as new Israeli construction. To speak of Palestinian civilians and Israeli settlers is to accept a false narrative and a dehumanizing one.

It behooves those who believe that Israel matters and its security and Jewish identity are important to be accurate with language. Otherwise, they simply cede points in negotiations and risk putting Israel in an even more precarious position as diplomacy continues.

Saturday, May 21, 2011


No one knows if the IMF director is guilty of sexual assault—and by dragging him through the mud, politicians and the press are committing gross acts of injustice, says French philosopher Bernard-Henri Lévy.

Daily Beast/ May 15, 2011

I do not know what actually happened Saturday, the day before yesterday, in the room of the now famous Hotel Sofitel in New York.

I do not know—no one knows, because there have been no leaks regarding the declarations of the man in question—if
Dominique Strauss-Kahn was guilty of the acts he is accused of committing there, or if, at the time, as was stated, he was having lunch with his daughter.

Dominique Strauss-Kahn, managing director of the International Monetary Fund (IMF), is arraigned in Manhattan criminal court in New York, U.S., on Monday, May 16, 2011. (Richard Drew, Pool / AP Photo) I do not know—but, on the other hand, it would be nice to know, and without delay—how a chambermaid could have walked in alone, contrary to the habitual practice of most of New York’s grand hotels of sending a “cleaning brigade” of two people, into the room of one of the most closely watched figures on the planet.

And I do not want to enter into considerations of dime-store psychology that claims to penetrate the mind of the subject, observing, for example, that the number of the room (2806) corresponds to the date of the opening of the Socialist Party primaries in France (06.28), in which he is the uncontested favorite, thereby concluding that this is all a Freudian slip, a subconsciously deliberate mistake, and blah blah blah.

What I do know is that nothing in the world can justify a man being thus thrown to the dogs.
What I know is that nothing, no suspicion whatever (for let’s remind ourselves that, as I write these lines, we are dealing only with suspicions!), permits the entire world to revel in the spectacle, this morning, of this handcuffed figure, his features blurred by 30 hours of detention and questioning, but still proud.

What I know as well is that nothing, no earthly law, should also allow another woman, his wife, admirable in her love and courage, to be exposed to the slime of a public opinion drunk on salacious gossip and driven by who knows what obscure vengeance.

And what I know even more is that the Strauss-Kahn I know, who has been my friend for 20 years and who will remain my friend, bears no resemblance to this monster, this caveman, this insatiable and malevolent beast now being described nearly everywhere. Charming, seductive, yes, certainly; a friend to women and, first of all, to his own woman, naturally, but this brutal and violent individual, this wild animal, this primate, obviously no, it’s absurd.

This morning, I hold it against the American judge who, by delivering him to the crowd of photo hounds, pretended to take him for a subject of justice like any other.

I am troubled by a system of justice modestly termed “accusatory,” meaning that anyone can come along and accuse another fellow of any crime.

I am troubled by a system of justice modestly termed “accusatory,” meaning that anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact.

I resent the New York tabloid press, a disgrace to the profession, that, without the least precaution and before having effected the least verification, has depicted Dominique Strauss-Kahn as a sicko, a pervert, borderlining on serial killer, a psychiatrist’s dream.

I am angry with all those in France who jumped at the occasion to settle old scores or further their own little affairs.

And I hold it against the commentators, pundits, and other minor figures of a French political class overjoyed at this divine surprise who immediately, indecently, and at the very first opportunity commenced with their de Profundis drivel by talking about a “redistribution of the cards” or a “new deal” at the center of this or of that. But I must stop here, for it makes me nauseous.

I’m angry with, to name one, the French M.P. Bernard Debré, who comes right out and denounces a man he calls “disreputable,” one who “wallows in sex” and has conducted himself, for a long time now, like a “scoundrel.”

I hold it against all those who complacently accept the account of
this other young woman, this one French, who pretends to have been the victim of the same kind of attempted rape, who has shut up for eight years but, sensing the golden opportunity, whips out her old dossier and comes to flog it on television.

And I am, of course, dismayed at
the political impact of the event.

The French left that, if Strauss-Kahn were really out of the arena, would lose its champion.
France, that has counted him among her most devoted and competent servants for so many years.

And Europe, not to say the world, that is indebted to him for contributing, for the past four years at the
head of the IMF, to avoiding the worst.

On one side, there were the hardline ultraliberals, partisans of rigorous plans, without modulation or nuance, and on the other, those who, Dominique Strauss-Kahn at their head, had begun to implement rules of the game that were less lenient toward the powerful, more favorable to proletarian nations and, among the latter, to the most fragile and vulnerable.

He was arrested just hours before the meeting during which he would face a more orthodox German chancellor to plead the cause of a country, Greece, that he believed could be brought back to order without being brought to its knees. His defeat would also be that of this great cause. It would be a disaster for this entire part of Europe and of the world, because the IMF, under his leadership and for the first time in its history, did not intend to sell out to the superior interests of Finance. And that would really be a dreadful sign.

Me (from a thread on this):

Interesting it is to read Levi's Beast piece and then the analyses of it here.

His piece goes all over the place starting from a modest acknowledgment of his unknowing of what happened to a decent point about media and political overreaction to a florid, rapturous, self inflating j'accuse Cri de Coeur, which has as its unstated but real underpinning that this man--a gift from the goods to the left, to France, to Europe--could not have done these things.

I typically find BHL both to say stupid, elitist things and to wallow in sheer overwrtiting and overstatement often to the point of incomprehensibility. For examples, his indefensible this, which others are correct to adduce as evidence of his elitist, dense insufferability:

...This morning, I hold it against the American judge who, by delivering him to the crowd of photo hounds, pretended to take him for a subject of justice like any other...

and this:

...I am troubled by a system of justice modestly termed “accusatory,” meaning that anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact...

with the latter needing to be read in the typical context of serious, good faith police investigation, the operation of serious, good faith prosecutorial discretion before arrest and indictment and the plain fact that the preponderant majority of those arrested and charged are guilty.

The argument justifying BHL's Beastly piece as a properly read complaint against before-the-fact condemnation and media-driven sensationalism has a real point but, it, finally, neither comprehends the entirety of what BHL says nor his inanities along the way.

I'm going to relax and drink a spiked lemonade now on a hot, humid day in my town and then I'm going to dig up and read what BHL had to say about Polanski. If it's true that he defended Polanski in the name of art, or some like such, I'm going to get hot and bothered all over again over such pompous idiocy thinking itself profound, let alone correct.

Tuesday, May 17, 2011

Continuous vs. Continual

"Continuous" and "continual" aren't the same.

Both describe duration.

"Continuous" is without interruptions.

"Continual " is with interruptions.

"Continuously" and "continually" preserve this distinction.

Friday, May 6, 2011

Superb Short Piece by Aaron David Miller on Hamas Fatah Accords

Circus of the Dancing Bears

Aaron David Miller Wednesday, May 4, 2011

Foreign Policy

The late Yitzhak Rabin used to say that the only problem with dancing with a bear is that once you start, you can never let go.

Watching the current Hamas-Fatah unity circus, I can't help but think of Rabin's comment. For the former Israeli prime minister, Yasir Arafat was the bear and the Oslo process was their choreographed dance. Rabin was no sentimentalist and he recognized Arafat's many weaknesses as a partner, but he continued to engage with him because he believed his counterpart had taken tough positions. Oslo was a good faith effort to achieve a goal.

The Hamas-Fatah unity gambit signed on Wednesday in Cairo isn't about good faith, consequential agreements, nor is it about peacemaking. The forging of Palestinian unity is a product of narrower calculations of two key parties -- Fatah and Hamas -- who are looking for a way to improve their respective positions during a very turbulent and uncertain period. This is an instance of two bears dancing with one another. Israel is right to be wary...

Read the rest here: http://www.foreignpolicy.com/articles/2011/05/04/circus_of_the_dancing_bears

Gone Postal: A Poem By Me

Gone Postal

They say, “He went postal,
right off his route,
right off all the sorting,
stacking, filing, slotting,
precisely organizing,
then delivering.”
They say, “For a while there,
he went glassy-eyed,
immobile, paralyzed.
Then he:
slung letters, postcards, packages
all over the place;
prostrated postal apple carts;
and stormed away,
sceaming at himself,
at others,
at the world.”
Of that they say,
“Good thing we’re not
postal people,
so able
to get gone
so postal.”

Tuesday, May 3, 2011

An Argument For Paul Ryan's Moral Barbarism

Paul Ryan's Moral Barbarism

Jonathan Chait/May 3, 2011/TNR

Karl Rove's column the other day joined the many conservatives expressing their hurt and anger that President Obama would depict Paul Ryan's budget as harming sick and vulnerable citizens:

...Mr. Obama likes campaigning more than governing. And for this president, campaigning means knocking down straw men and delivering a steady stream of misleading attacks. It means depicting opponents as indecent, heartless people who take special delight in targeting seniors and autistic children...

In fact, Obama has never accused Ryan, or anybody, of having a "special delight" in targetting seniors and autistic children. But he has accused them of pursuing policies that would harm, among others, seniors and autistic children.

That's because it's incontrovertably true.

The Center on Budget and Policy Priorities delves into the details of Ryan's plan to slash Medicaid by more than a third over the next decade, and in half over the next two decades:

Seniors: An overwhelming majority of Medicare beneficiaries who live in nursing homes rely on Medicaid for their nursing home coverage. Because the Ryan plan would require such deep cuts in federal Medicaid funding, it would inevitably result in less coverage for nursing home residents and shift more of the cost of nursing home care to elderly beneficiaries and their families. A sharp reduction in the quality of nursing home care would be virtually inevitable, due to the large reduction that would occur in the resources made available to pay for such care.

People with disabilities: These individuals constitute 15 percent of Medicaid beneficiaries but account for 42 percent of all Medicaid expenditures, mostly because of their extensive health and long-term care needs. Capping federal Medicaid funding would place significant financial pressure on states to scale back eligibility and coverage for this high-cost population, many of whom would be unable to obtain coverage elsewhere because of their medical conditions.

Children: Currently, state Medicaid programs must provide children with health care services and treatments they need for their healthy development through the Early Periodic Screening, Diagnostic and Treatment (EPSDT) aspect of Medicaid, which provides regular preventive care for children and all follow-up diagnostic and treatment services that children are found to need. A block grant would likely permit states to drop EPSDT coverage, meaning that children, particularly those with special health care needs, would not be able to access some care that medical professionals find they need (because Medicaid would no longer cover certain health services and treatments for children, and their parents wouldn’t be able to afford to pay for that care on their own).

Working parents and pregnant women: Many state Medicaid programs already have extremely restrictive eligibility criteria for parents. In the typical state, working parents are ineligible for Medicaid if their income exceeds 64 percent of the poverty line (or $14,304 a year for a family of four), and unemployed parents are ineligible if their income exceeds 37 percent of the poverty line ($8,270 a year for a family of four). Under a block grant, states could cut these already low eligibility levels even further, cap enrollment, and/or require low-income parents to pay more for health services. States could do the same for low-income pregnant women who rely on Medicaid for their prenatal care, resulting in them forgoing services that are critical to ensuring a healthy pregnancy.

Now, Rove appears to be a pathological liar, or at least so deeply enmeshed in partisan spin it's not clear that a distinction exists in his mind between objective truth and claims that are useful to his side. But many other conservatives have likewise expressed what has the ring of genuine outrage that

Obama would accuse Ryan of snatching medical care away from people in nursing homes, very poor families, special needs children, and so on. I think it reflects, in part, an inability or lack of desire to think with any specificty about the concrete ramifications of imposing extremely deep cuts to Medicaid.

Who do they think is on Medicaid? Prosperous, healthy people?

No, Medicaid is a bare-bones program throwing a lifeline to people who are in bad shape. Cutting Medicaid may be the politically easiest way for Ryan to clear budget room to preserve Bush-era revenue levels, as Medicaid patients have little political clout. But it is, well, deeply immoral.

I'm actually surprised that conservatives not only can't seem to imagine (or care about) the consequences of such policies, but they can't even imagine that people like Obama would actually feel moral outrage at their plan.

They can't imagine a liberal objection as representing anything other than an attempt to score political points. It's bizarre. I mean, of course Obama finds it morally objectionable to take away medical care to people in nursing homes and children with special needs. That's why he's a Democrat.

Legal Basis For Killing OLB

The legal justification, explained.

James Downie

May 3, 2011 TNR

Both Human Rights Watch and Amnesty International have long criticized the Bush and Obama administrations’ prosecution of the “War on Terror.” The two human rights groups have consistently pointed out sovereignty and human rights violations by the United States on issues ranging from black sites to drone strikes.

But today, in the wake of American special forces’ raid on Osama bin Laden’s compound in Pakistan, both organizations merely noted that bin Laden had been responsible for the deaths of thousands of civilians. But what about questions of national sovereignty and civilian casualties? And, more to the point, was it legal to kill bin Laden in the first place?

“There are targeted killing issues where the legal background is complicated,” says Brookings fellow (and New Republic contributor) Benjamin Wittes. But, as it turns out, “[t]his isn’t one of them.”

One week after the September 11 attacks, Wittes explains, President George W. Bush signed Public Law 107-40, in which Congress authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”

No one fit this description more closely than Osama bin Laden. (By contrast, the NATO missile strike in Tripoli that allegedly killed Muammar Qaddafi’s son Seif Al Arab and three of his young grandchildren this past weekend has elicited greater controversy, because the U.N. resolution authorizing a no-fly zone over Libya, among many other differences from 107-40, did not include an authorization of force against Qaddafi or his family.)

Still, some legal scholars have pointed to the thorny interpretational issues surrounding Executive Order 12333, signed by Ronald Reagan in 1981, which prohibited the U.S. from “engag[ing] in, or conspiring to engage in, assassination.”

But Reagan’s advisers at the time, and the majority of scholars since, have interpreted E.O. 12333 as only applying in peacetime and not after a force authorization such as the one signed by Bush in 2001.

The question of whether the United States violated Pakistan’s sovereignty, on the other hand, is somewhat more nebulous, Wittes admits. This is due in part to the fact that the public doesn’t have a clear idea about what kind of understanding the two countries share.

Because of the lack of settled international law on the subject, Pakistan could decide, once it was informed, whether or not to retroactively consent.

Fortunately, Pakistan did not object.

James Downie is a reporter-researcher at The New Republic

Excellent Synoptic Take On How Obama the Pol Repudiated Obama the Campaigner in Killing OBL

President Obama Deserves the Nobel Prize After All

Emanuele Ottolenghi 05.03.2011/Contentions

Let’s face it—President Obama is starting to deserve the Nobel Prize he received in December 2009, although it is unlikely that this is what the mild-mannered Norwegians had in mind in awarding it to him.

Obama promised to close Guantanamo—no doubt a factor for the Nobel Committee. Yet Guantanamo is still there, and we now know that it was intelligence dug up at Guantanamo that led to Osama bin Laden’s liquidation.
Before becoming president, Obama was an anti-war candidate—yet he ordered the surge in Afghanistan, expanded the aggressive use of predator-drone strikes on both sides of the Pakistan-Afghan border, and endorsed the Libya no-fly zone. Again, probably not what the Committee had in mind.

Speaking of which—the killing of Osama bin Laden is the kind of extrajudicial killings (I prefer the more sanguine “targeted assassinations”) that invariably secures condemnation for Israel at the UN Human Rights Council, the European Parliament, and other august institutions whose mind-set is on the same wavelength as the Nobel Committee. Can you imagine Ariel Sharon’s winning the Nobel Prize for having Sheikh Ahmed Yassin eliminated? Obama’s dispatching of Osama bin Laden to the flaming depths of hell is not the first instance of this president ordering the termination of a jihadist (see under: drones, above). With any luck, it will not be the last time either.

Finally, Obama was the multilateralist president—respectful of international law, keen on the UN, open to dialogue, ready for negotiation, mindful of the sensitivities of other cultures and countries. One more reason for the Nobel Peace Prize. How does his reputation for multilateralism square with conducting such a daring military operation without even asking permission to Pakistan—the fugitive’s host country?

Obama’s first, magnificent foreign-policy success resulted from going against all the reasons that probably brought him the Prize in the first place. Good on him—and a vote of thanks to America and its firepower, still the best guarantees for making the world a safer place