What's a Lawyer To Do?

http://www.canlii.org/en/on/onlshp/doc/2010/2010onlshp7/2010onlshp7.html


This was a disciplinary proceeding against a lawyer who was found by the panel he appeared before--"the "Panel"--to have known in the midst of a custody proceeding that his client had an "imminent" and "in play" plan to take her child out of the jurisdiction.

The lawyer not long before his client actually left sent his law partner as his agent to speak to an adjournment of the custody case. He did not advise her of the active and imminent plan. She on his behalf merely attended to the adjournment and nothing was told to the court about the plan.

The Panel found it that is was evident that the self represented father--who in fact consulted with duty counsel that day--had two concerns: ultimately getting custody; and ensuring that his child--of very young years--stayed in the jurisdiction, which is to say, Ontario.

The Panel ruled that in these circumstances the lawyer could not betray his client's confidentiality about the plan. His duty of confidentiality, the Panel said, trumped any obligation he might have had to advise the court of the plan.

But what of any such duty to advise?

The mother--his client--had a custody order in an ongoing Child Protection proceeding. That proceeding came as a result of the father's physical abuse towards mother and child and the mother continuing see the father regardless. The order, and a criminal court order, denied the father access. The child protection order also had some reporting requirements for the mother in the county to its Children's Aid Society. Finally, the order contemplated the possibility of the father eventually seeing the child again if he completed certain anger management counselling and such like therapy.

But to make the problem posed by this decision clear, let's stipulate:

1. the mother had a custody order;

2. the father had no right of access--it had been taken away;

3. there was no order in place, and no legal prohibition in place, forbidding the mother from leaving Ontario with the child;

4. the spoken to adjournment by the lawyer's partner was for a stay of the custody proceeding until the Child Protection proceeding ended.

The Panel found the lawyer guilty of knowingly misleading the court:

"Rule 4.01(2) specifies certain conduct that a lawyer cannot engage in when acting as an advocate.

Rule 4.01(2)(e) in particular reads:

"When acting as an advocate, a lawyer shall not...

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct..."

Based on the above stipulations, why did the lawyer mislead the court by not disclosing his client's plan on having the custody case adjournment spoken to? By stipulation here, his client was doing nothing illegal by the plan. If his client had asked the lawyer whether it was legal for her to leave the jurisdiction in the midst of the custody proceeding, by stipulation he would have been duty bound to advise her that it was--there being no order or prohibition stopping her. Her leaving did not end the custody proceeding. The lawyer was duty bound not to disclose to the court, as a matter of confidentiality, the perfectly legal action he knew his client was planning.

The Panel said that once the lawyer knew of the imminent, in play plan, he either needed to get instructions to disclose that plan in some efficacious way or he needed to get an order allowing him to stop acting for his client. (He could have done the latter, the Panel notes, without betraying his client's confidentiality.)

But the Panel, in my reading of its 22 pages of reasons, never provides a principled basis for why the lawyer needed to do anything more than he did in the circumstances.

It may be argued that in maintaining his silence at the adjournment the lawyer was implicitly representing to the court that the custody case was, after the stay, going to continue in the normal course--subject to an intervening, agreed to settlement--with the parties and the child before the court.

But this argument reasons in a circle: it amounts to saying it was wrong not disclose to the court that which was patently lawful because it was wrong not to disclose to the court that which was patently lawful. Which is to say: what is the principle informing the misrepresentation? The argument from misrepresentation does not identify, explain or provide that principle.

The lawyer could appeal one rung up to a panel of 5 benchers.

I'll let anyone reading this know what new comes to my attention.

I Like Dick: And I Don't Care Who Knows It

http://blogs.telegraph.co.uk/news/nilegardiner/100026007/dick-cheney-%E2%80%93-obama%E2%80%99s-worst-nightmare/

Parental Abduction in Canada

The Federal Prosecution Service

DESKBOOK

[ Previous Table of Contents Next ]

Part VIPOLICY IN CERTAIN TYPES OF LITIGATION

Chapter 30

Table of Contents

30 PARENTAL CHILD ABDUCTION
30.1 BACKGROUND
30.2 INTRODUCTION
30.3 CHARGES UNDER S. 282 OF THE CRIMINAL CODE
30.4 CHARGES UNDER S. 283 OF THE CRIMINAL CODE
30.5 EXAMPLES OF WHEN CHARGES MAY BE AUTHORIZED
30.6 EXAMPLES OF WHEN CHARGES MAY NOT BE APPROPRIATE
30.7 DEFENCES
30.8 OTHER CONSIDERATIONS
30.9 REFERENCES

30 PARENTAL CHILD ABDUCTION

30.1 Background

Parental child abduction occurs when one parent, without either legal authority or the permission of the other parent, takes a child from the parent who has lawful custody. There are both international and domestic aspects to the problem of child abduction. In both cases, although children may not be in extreme physical danger, their lives are greatly disrupted. They are deprived by the abduction parent of security, stability and continuity in their lives.
The Hague Convention on the Civil Aspects of International Child Abduction is the main international treaty that can assist parents whose children have been abducted to another country.

In Canada, statistics collected by the RMCP Missing Children Registry indicate that 426 cases of victims of parental abductions were reported to police agencies in 1998, an increase of 8% from 1994.

The Criminal Code provides a criminal response to parental child abduction where there is a custody order in effect (s.282) and for situations where there is no custody order (s.283). In the latter case, consent of the Attorney General is required to prosecute the offence1.

In 1990, Federal/Provincial/Territorial Ministers responsible for Justice unanimously adopted model charging guidelines to assist in the uniform application of the Criminal Code provisions and in particular to advise when and how charges may be laid.

To provide greater understanding and consistency of approach to this problem a subcommittee of the Co-ordinating Committee of Senior Officials (“CCSO”) and the Federal/Provincial/Territorial Family Law Committee (“FPT Committee”) prepared amended charging guidelines for use by police and Crown counsel. These guidelines were adopted by Ministers responsible for Justice at a meeting in Regina in October of 1998. The guidelines remain advisory only, since the ultimate decision on charging rests with investigative agencies and Crown counsel. 2

Not all cases of parental child abduction will be considered criminal in nature. Whether or not a charge can be laid depends on several factors, including evidence of criminal intent, the burden of proof beyond a reasonable doubt, and the availability of statutory defences of consent and danger of imminent harm.

Civil enforcement is another route that can be used in addition to the criminal response when criminal charges are not appropriate. The federal Family Orders and Agreements Enforcement Assistance Act establishes procedures to ascertain the addresses of parents and children residing in Canada from federal information banks to facilitate the enforcement of custody orders.
Adoption of the charging guidelines is one part of the Government of Canada's response to the problem. The Government has accepted that it can and must play a coordinating role in addressing parental child abduction within Canada3, as well as recognizing and taking steps to combat international child abductions4.

The following text has been taken from the 1998 CCSO/FPT Committee document with minor modifications to reflect the Federal Prosecution Service Deskbook format.

30.2 Introduction

The intent of these guidelines is to assist in the uniform application of ss. 282 and 283 of the Criminal Code. They are directed to police and Crown counsel to advise when and how charges may be laid.

These guidelines are advisory only. The ultimate decision as to whether or not to lay charges in a particular case rests with the appropriate authorities having regard to the particular circumstances of that case.

In endeavouring to interpret these sections, the underlying purpose of the legislation as stated by Dr. MacGuigan, then Federal Minister of Justice, should be borne in mind:
...the new law puts the child first and recognizes that the children have rights; the right to security, stability and continuity in their lives.

The Criminal Code provisions send a clear message that unilateral actions by one parent that affect lawful care and control rights of the other parent respecting the child will not be tolerated. Such actions have a detrimental effect on the well-being of the children involved. Parents are to be discouraged from using “self-help” remedies to deal with custody disputes. Parents are to be encouraged to comply with existing orders or agreements and to resolve disputes with the other parent through civil processes.

While the important criminal purpose of these sections governs police and Crown practice, it may also be relevant to suggest that parties consider, with their counsel, whether civil law remedies are also appropriate to their case. Even if civil law remedies are available, a separate determination of whether criminal charges should be laid is required.

The discussion that follows is offered to assist police and Crowns in interpreting the custody concepts used in ss. 282 and 283.

Articles 3 and 5 of the Hague Convention on the Civil Aspects of International Child Abduction, which has been adopted by all Canadian jurisdictions, may be of assistance in interpreting ss. 282 and 283 in custody situations.

Article 3 of the Convention states in part:

The removal or the retention of a child is to be considered wrongful where

a. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Article 5 of the Convention states in part:

For the purposes of this Convention

a. “rights of custody” shall include rights relating to the care of the child and, in particular, the right to determine the child's place of residence;...

30.3 Charges under s. 282 of the Criminal Code

Section 282 of the Criminal Code states:

282. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of

a. an indictable offence and liable to imprisonment for a term not exceeding ten years: or

b. an offence punishable on summary conviction.(2) Where a count charges an offence under subsection (1) and the offence is not proven only because the accused did not believe that there was a valid custody order but the evidence does prove an offence under section 283, the accused may be convicted of an offence under section 283.

Charges under section 282(1) of the Criminal Code may be warranted where:

1. A child under the age of 14 is involved;

2. There is a court order establishing “custody rights” granted in Canada which is not being complied with;

Note:

a. Persons can have different types of “custody rights” under custody orders. Orders can contain different types of terminology. For example, an order may grant a person sole custody, joint custody, periods of care and control [with custody remaining joint between the parents by virtue of provincial legislation] or guardianship. These are are all types of “custody rights”;

b. It is not necessary to register an order of custody granted from one province before criminal charges can be laid in another. The investigative agency should, however, consider making inquiries to ascertain whether the custody order is the most current custody order, that the order is still in effect, and may request a copy of the order. This can be done through direct inquiries of the complainant, a call to the registrar/court staff from where the order was issued or otherwise;

3.

a. The alleged abductor is a parent, guardian [defined in s.280(2)] or other person having the right to care for or charge of a child;

b. The alleged abductor takes, entices away, conceals, detains, receives or harbours the child;

c. The alleged abductor is in contravention of the custody provisions of a Canadian custody order [Note: there is a distinction between custody and access provision terms]; and

4.

a. The taking, etc. was done by the alleged abductor with the intent to deprive a parent, guardian or person having lawful care or charge of the of the child of possession of the child contrary to a court order;

b. A parent, guardian or other person having the lawful care or charge of the child did not consent to the taking, etc. of the child by the alleged abductor [Note: the defence of consent is defined in s. 284. The alleged abductor's consent is not sufficient to avoid a charge.];

c. There is no reason to believe that the alleged abductor did not know of the existence or terms of the custody order.

30.4 Charges under s. 283 of the Criminal Code

Section 283 of the Criminal Code states:

283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of

a. an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

b. (b) an offence punishable on summary conviction.(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him
for that purpose.

Charges under s. 283(1) of the Criminal Code may be warranted where:

1. A child under 14 is involved;

2.

a. A Canadian custody order exists but the alleged abductor did not believe or know there was a valid order [See s. 282(2)];

b. No Canadian custody order exists, but parental rights of custody under statute or common law exist [for example, provincial family law legislation may indicate that parents have joint custody of their children unless the court orders otherwise];

c. No Canadian custody order exists, but custody rights under a separation agreement or a foreign order have been violated;

d. (i)There has been a permanent or indefinite denial of a right of access pursuant to an agreement which provides the access parent with a significant degree of care and control over a child with or without a provision permitting the child's removal from the jurisdiction;(ii)There has been a permanent or indefinite denial of a right of access pursuant to a court order5 which provides the access parent with a “significant degree of care and control over a child” [Note: Various factors may indicate whether “significant care and control” exists; one factor may be a court order with a non-removal clause.]

Where the rights of the access parent are not so extensive, resort should be made to whatever civil remedies exist in the jurisdiction.

3.

a. The alleged abductor is a parent, guardian [defined in s. 280(2)] or other person having the lawful right to care for, or lawful charge of the child;

b. The alleged abductor does so with the intent to deprive the other parent, guardian or person of possession of that child;

4.

a. The taking, enticing etc. was done by the alleged abductor with the intent to deprive a parent, guardian or person having care or charge of the child of the possession of the child [Note: the non-abducting parent does not need to be in or have been in physical control over the child at the time of the alleged abduction. The notion of possession includes actual possession or a right to possession. This refers to the right of a parent to exercise control over a child. See R. v. Dawson.];

b. A parent, guardian or other person having the lawful care or charge of the child did not consent to the taking, enticing or detention of the child by the alleged abductor [Note: the alleged abductor's own consent is not sufficient to avoid a charge.];

5. Consent of the Attorney General or counsel instructed by him/her for that purpose is obtained.

[Note: The fact that consent has been given may be added to informations under s. 283, by stating, for example:

The Consent of Crown counsel has been obtained to lay this charge, Crown counsel being counsel for the Attorney General instructed for that purpose.]

30.5 Examples of When Charges may be Authorized

1. A child is taken by the alleged abductor from the usual sole or joint possession of another parent in circumstances where there is some degree of permanency, e.g. contrary to an arrangement which has existed between the parties for some time or contrary to the provisions of a written or oral agreement;

2. Custody proceedings have been initiated or are anticipated and the alleged abductor, in taking the child, is frustrating proceedings. This may include situations where the court has stated that the child is not to be removed from the jurisdiction pending a determination;

3. There are reasonable grounds to believe one parent has a foreign custody order and the alleged abductor is in breach of such order [Note: Counsel may want to consult with a Central Authority for purposes of the Hague Convention on the Civil Aspects of International Child Abduction in your province or territory to ascertain whether parallel civil proceedings are or may be initiated];

4. The alleged abductor has repeatedly acted in a manner which appears to have violated s. 283;

5. The child has been taken by the alleged abductor contrary to the existing parental rights to custody and it appears the alleged abductor may cause harm to the child and a criminal charge is necessary to ensure the protection of the child;

6. The alleged abductor takes a child with intent to deprive the other parent of possession of the child and in contravention of an existing Canadian court order or joint custody law, but there is evidence that the abducting parent was not aware of the court order or law;

7. The alleged abductor takes the child surreptitiously and disappears with the child;

8. The alleged abductor takes, etc. the child where there is a provision in an order or agreement restricting the ability of a parent to remove the child from the jurisdiction; or

9. The alleged abductor has taken the child and in so doing has permanently or indefinitely frustrated the access parent's rights, where such rights by their nature involve a significant degree of care and control over the child.

30.6 Examples of When Charges may not be Appropriate

Under s. 282(1):
1. The order is not

clear on its face as to the terms of custody allegedly breached and the available evidence does not clarify the nature of the breach; or

2. There is evidence that the alleged abductor is not aware of the existence of the terms of a custody order prior to the laying of the charge. However, it should be noted that s. 282(2) allows for a conviction under s. 283(1) where it is found at trial that the accused did not have knowledge of the custody order at the time of the offence. It appears that s. 283 is treated as an included offence and Attorney General consent is implied where the Crown and court rely on s. 282(2).

Under s. 283:

1. Although technically a charge could be laid in a situation where a parent, in the process of separation, moves out of the home with the child, it would be unlikely that a charge should be laid in these circumstances if it appears that the parties are attempting to resolve custody either through the courts or by agreement; or

2. Where there are competing interim or final orders issued by different courts dealing with the custody of a child, which are valid on their face, the police may need to consult with Crown counsel to determine whether there are reasonable grounds to proceed with an investigation and potential charge or whether further direction from the civil courts is required as to which order has priority or what remedy is appropriate.

Appropriate prosecutorial discretion should be exercised in these circumstances.

30.7 Defences

1. It is not a defence to any charge under s. 283 that the young person consented to or suggested any conduct of the accused [See s. 286];

2. It is a defence if the alleged abductor establishes that the taking, etc., of the child was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of the child;

3. It is a defence:

a. if the child was taken, etc., to protect the child from danger of imminent harm; or

b. if the alleged abductor was fleeing from imminent harm and taking the child as well. For example, protecting a child from child abuse would be a defence as would a parent escaping from a situation of spousal assault and removing the child at the same time. [See s. 285]

30.8 Other Considerations

Given the interplay between family law and criminal law remedies in these cases, jurisdictions which have not already done so, may want to consider, in line with the recommendations of the Federal/Provincial/Territorial Family Law Committee in its original report, ensuring that Crown counsel familiar with family law matters are available to consult with prosecutors and police where appropriate.

In addition, each jurisdiction should ensure the police, Crown counsel and others dealing with s. 282 and s. 283 of the Criminal Code are provided with information on the role of, and how to contact, the Central Authority for the Hague Convention on the Civil Aspects of International Child Abduction in their jurisdiction. There may be civil proceedings for the return of the child underway or available under the Hague Convention on the Civil Aspects of International Child Abduction. Police and Crown Attorneys should consult with the Central Authority in their province/territory as international cooperation may be facilitated by understanding the relationship between civil and criminal actions.

30.9 References

Elements of the Offence: s. 282


R. v. Van Herk (1984), 12 C.C.C. (3d) 359 (Alta.C.A.)
R. v. Powless (1988), 18 R.F.L (3d) 433 (Ont. Prov. Ct.)
R. v. Petropoulos (1990), 59 C.C.C. (3d) 393 (B.C. C.A.)
R. v. Gustaw (1991), 65 C.C.C. (3d) 296 (N.W.T. S.C.)
Lack of Belief in Valid Order
R. v. Ilczyszn (1988), 45 C.C.C. (3d) 91 (Ont. C.A.)
R. v. Hammerbeck (1991), 36 R.F.L. (3d) 229 (B.C.C.A)
consider also
R. v. McDougall (1990), 62 C.C.C. (3d) 174 (Ont. C.A.)
R. v. Chartrand (1994), 91 C.C.C. (3d) 396 (S.C.C.)
Elements of the Offence: s. 283
R. v. Cook (1984), 12 C.C.C. (3d) 471 (N.S. C.A.)
R. v. Levesque (1984), 15 C.C.C. (3d) 413 (N.S. Co. Ct.)
R. v. Dawson (1995), 100 C.C.C. (3d) 123 (N.S.C.A) and (1997), 111 C.C.C. 1 (S.C.C.)

Defence of Imminent Harm:


R. v. Famuluk (1989), 69 Alta. L.R. (2d) 412 (Alta. Q.B.)
R. v. Schellenberg (1990), Sask. R.317 (Sask. C.A.)
R. v. Adams (1993), 44 R.F.L (3d) 109, 19 C.R. (4th) 277 (Ont. C.A.) Note: Defence available only if the taking is necessary and proportional to the imminent harm as honestly perceived by the accused.
R. v. Tremblay (1994), 61 Q.A.C. 163 (C.A.)

Duty to Investigate Status of Order:

R. v. McCoy (1984), 17 C.C.C. (3d) 114 (Ont. Prov. Ct.)
1 See Part V, Chapter 16, “Decisions Made by, and on Behalf of, the Attorney General”.
2 In accordance with Part V, Chapter 15, “The Decision to Prosecute”.
3 Government of Canada's Response to the Report of the Special Joint Committee on Child Custody and Access, May 1999, pp. 14-15.
4 See generally, Government of Canada's Response to the Fourth Report of the Standing Committee on Foreign Affairs and International Trade, November, 1998.
5 Custody and access rights may be found in various court orders including those that precede or supplement custody and access orders such as those dealing with non-removal.

Further Exchange on Kasher

1. http://basmanroselaw.blogspot.com/2010/02/exchange-on-kasher.html



2. me:




SMacEachern2


No doubt we start from radically different premises that inexorably will lead us to irreconcilable conclusions on these issues, but let me deal with your arguments regardless.


Firstly, different from you I found the section you quoted consistent, without contradiction and straightforwardly sensible.


Secondly I don’t grant your test for judging effective warnings. One can think of practical ways warnings might be dispensed—leaflets, radio warnings, time lags between such dissemination and the start of military activities, and so on—but we’d need to separate those warnings from the population’s response to them. If for any number of reasons—including, I don’t know, countermand and pressures fro Hamas—then I say Israel in its dissemination acquitted itself. If the test was as you suggest, then Hamas could prevail of the regular population to stay put and then malign Israel’s failure to warn. Also the logical absurd conclusion of your test is Israeli military impotence in the face of a population that won’t heed the warnings it gets.


Thirdly, let’s unpack some the realities on the ground. Israel does not control Gaza. Hamas refuses to heed the visible distinguishing between combatant and non combatant. Worse, it insinuates itself amidst the civilian population to take advantage of enlightened Israeli sensitivity about wanting to minimize civilian wounding and death. And still worse, it then launches its rocket attacks under the hoped for protection of a civilian shield. Assuming after some point and some number of rockets, Israel has to act in own self defense, what is it to do and what harm is it supposed to expose its soldiers to in response to Hamas’s tactics?


Once effective warning is given—something, I argue, to be tested empirically by the actuality of the warnings, not the actual dispersal the warnings lead to, I agree with Kasher and Yadlin and Halbertal, over Walzer and Margalit, that Israel, no state in fact, need to expose its soldiers to the danger of boots on the ground assurance that no civilians are afoot before military action begins. And on this basis, I agree with the assessment of and assignment of moral blame for Palestinian casualty on Hamas.


Fourthly, you are way too binary when you say “This means that Israel would simply give up on trying to avoid civilian deaths in any extra-territorial military action.” Respectfully, that comes nowhere near to following and elides measures taken to minimize civilian casualty. Those measures include pre action intelligence meant to ensure isolating militarily necessary targets, effective warnings, and tailored strikes. (Both Halbertal and Kasher note the fact of lower civilian to military death ratios in Lead Cast compared to any recent asymmetric campaign and the dearth of outcry against other warring nations than Israel.)


If the above, and Kasher’s analysis be moral bankruptcy, I had better book an appointment with my moral trustee. But really I don’t think so.


Finally, for myself, I would not, in wanting to criticize Kasher, impugn his motives. Rather I’d try to deal with his arguments on the merits, which I have read you in the main to do, though by my lights, unpersuasively.



3. SMacEachern2:




basman: "One can think of practical ways warnings might be dispensed...but we’d need to separate those warnings from the population’s response to them."


Exactly. But that implies a continuing attention to means and attentions. As far as I can see, Kasher is arguing that as long as warnings are dispensed, Israel need not afterward expend energy trying to distinguish combatants from non-combatants. 'The lives of the troops come first' which, given pieces like that Haaretz story, means shoot first, ask questions later. From that article, "Instead of using intelligence to identify a terrorist," he told the British daily, "here you do the opposite: first you take him down, then you look into it."


The problem with that is that effectiveness is judged a priori: "Yeah, leaflets are effective" or "Yeah, phone calls are effective." But you are going to find civilians that are unable/afraid to move, for various reasons. Kasher's argument is that basically you don't have to worry about distinguishing combatants from non-combatants after that initial warning. And yes, that to me is morally bankrupt. I am not making the claim that the presence of civilians need render the IDF impotent - just that the laws of war (which Kasher is dramatically reformulating) need to be followed.


Israel is supposed to put its soldiers in harm's way for the benefit of Gazan non-combatants just in the same way that other countries do. My brother is now a major in the Canadian Forces. While he was in Afghanistan, there was a tightening up of RoEs there, requiring more efforts to distinguish between civilians and Taliban and to minimise civilian casualties. Did this increase the danger to my brother and other troops? In the short term, quite possibly yes, because they had to be more discriminating about how and when to use heavier weapons and call in fire support.



However (a) this probably lowers risks to them over the longer term and (b) it was the right thing to do - there were too many non-combatants being killed in fighting in Afghanistan.
No one is demanding that the IDF assure themselves that no non-combatants are on the ground before an operation commences. But Kasher is arguing that it is not necessary to distinguish between combatants and non-combatants after 'effective warning' (whatever that is) goes out.


You're quite right that the IDF takes measures to reduce civilian casualties. But as I said, _Kasher's_ distinction between 'trigger-happiness' and 'non-trigger-happiness' is also too binary: the question is, what are the effects of specific policies, and specific decisions by commanders? You folks may hate the Goldstone Report, but there is evidence from Gaza (and earlier from southern Lebanon) of policies put in place that are at odds with measures to reduce civilian casualties. Recognising that doesn't make the IDF in Gaza Russia in Grozny, but it does have to be addressed. And I have a pretty good memory of substantial criticism of American conduct in Fallujah, and for that matter of Russian conduct in Grozny.



4. Me:




SMacEachern2:


Firstly, I don’t think there is any warrant for concluding that “Kasher is arguing that as long as warnings are dispensed, Israel need not afterward expend energy trying to distinguish combatants from non-combatants.” Such a position is mechanical and isn’t a fair reading of the argument. In fact, respectfully, it misconceives the issue. Nothing crowds out doing things after giving effective warnings—to be judged as I say from the earnings themselves. But the issue precisely is: what is the extent of what Israel needs to do? This is the issue Halbertal, Margalit, Walzer, Kasher and Yadlin— others— have been agonizing over. It admits of no easy answer.


The problem with the argument you mount, as I see it , is that you start with a conclusion and only then reason back to to the propositions you want to argue. You start with Palestinian civilian casualty and civilian infrastructure damage and then pedal back to your indictment, setting up an impossible test for effective warnings along the way, and ignoring, as I noted, how favorably Israeli civilian to military kill ratios stack up against other recent asymmetric campaigns.


Secondly, it’s a thin reading of Kasher and it’s thin polemics to wave around the slogan “the troops come first” as dispositive of anything. Wars involve troops; troops will get killed and wounded. I have no doubt—no doubt, though admittedly I’m presuming—that compared to other warring nations Israel’s measures at the expense of its troops to keep down civilian casualty in the context of asymmetric war stands well. If you can cite me warring countries who put Israel to shame in this regard, I’d be open, of course, to considering that.


But to return to a theme in my first paragraph: the issue isn’t either or—warn first and then we don’t worry anymore; or “the troops come first” and then we don’t worry anymore.” My understanding is that is that just as Israel is an enlightened liberal nation, imperfect to be sure, and beleaguered to be sure as well, grapples in good faith with balancing how much danger should she expose her soldiers to in the effort to minimize casualty against an enemy which is indifferent to civilian casualty and in fact gets political mileage out of it.



Different from you, I don’t see these efforts, which Kasher and Yadlin exemplify, as after ( or pre) thought rationalization but rather as good faith efforts to deal with these troubled issues.


Thirdly, I offer you this challenge, assuming we can agree on a few predicates: applying just war theory to asymmetric war in the case of Israel in Gaza: my position is that Israel acquits itself. I’d like to see the opposite case, based not on rhetoric or middle excluding or circular arguments, but rather a good faith argument that considers other nations and compares Israel’s record to them but in a way that apples meet apples.


For example, is it really apt to compare Israeli efforts in Lead Cast with COIN in Afghanistan? COIN necessarily involves a bottoms up combination of soft and hard power. Matters go from an outward expanding base of “clear and hold” to along the way changing winning hearts and minds of locals against hard core Taliban.


Fifthly,and forgive the repetition, this is what in Kasher and others you must deal with:


1. (Kasher)…His state ought to have a compelling reason for jeopardizing his life. The fact that persons involved in terrorism are depicted as non-combatants and that they reside and act in the vicinity of persons not involved in terrorism is not a reason for jeopardizing the combatant's life more than is required under combat conditions…


2. (Kasher)…There is no army in the world that will endanger its soldiers in order to avoid hitting the warned neighbors of an enemy or terrorist…


3. (Kasher)…. Israel should favor the lives of its own soldiers over the lives of the well-warned neighbors of a terrorist when it is operating in a territory that it does not effectively control, because in such territories it does not bear the moral responsibility for properly separating between dangerous individuals and harmless ones….


4. (Kasher)… Compare the Gaza operation to the U.S. Marine operation in Fallujah, Iraq, in late 2004. During the operation, about 6,000 Iraqis including 1,200-2,000 insurgents were killed. Of the city's 50,000 buildings, some 10,000 were destroyed, including 60 mosques. Thus, the U.S. left a trail of destruction in Fallujah far greater than anything Israel inflicted on Gaza. Comparing IDF activities to those of military forces of Western democracies is an essential part of any present attempt to use international law…


5. (Halbertal)… In line with such principles, the Israeli Air Force developed the following tactic. Since Hamas hides its headquarters and ammunition storage facilities inside civilian residential areas, the Israeli army calls the residents’ telephones or cell phones, asking them to move immediately out of the house because an attack is imminent. But Hamas, in reaction to such calls, brings the innocent residents up to the roof, so as to protect the target from an attack, knowing that, as a rule, the Israeli army films the target with an unmanned drone and will avoid attacking the civilians on the roof. In response to this tactic, Israel developed a missile that hits the roof without causing any actual harm in order to show the seriousness of its intention. The procedure, called “roof-knocking,” causes the civilians to move away before the deadly attack…


and one more:


6. (Halbertal) … There are different accounts of the numbers of civilian deaths in Gaza, and of the ratio between civilian and militant deaths. B’Tselem, the reliable Israeli human rights organization, carefully examined names and lists of people who were killed and came up with the following ratio: Out of the 1,387 people killed in Gaza, for every militant that was killed, three civilians were killed. This ratio--1:3--holds if you include the police force among the civilians; but if you consider the police force as combatants, the ratio comes out to 2:3. There are 1.5 million people in Gaza and around 10,000 Hamas militants, so the ratio of militants to civilians is 1:150.

If Israel targeted civilians intentionally, how on earth did it reduce such a ratio to 1:3 or 2:3?


The commission never asks that question, or an even more obvious one. In operating under such conditions--Gaza is an extremely densely populated area--is such a ratio a sign of reckless shooting and targeting? One way to think about this is to compare it with what other civilized armies achieve in the same sort of warfare.



I do not have the exact numbers of the ratio of civilian to militant deaths in NATO’s war in Afghanistan, but I doubt that it has achieved such a ratio. Is it ten civilians to one combatant, or maybe 20 civilians to one combatant? From various accounts in the press, it certainly seems worse. The number of collateral deaths that are reported concerning the campaign to kill Baitullah Mehsud, one of the main Pakistani militant operatives, is also alarming: In 16 missile strikes in the various failed attempts at killing him, and in the one that eventually killed him (at his father-in-law’s house, in the company of his family), between 207 and 321 people were killed. If such were the numbers in Israel in a case of targeted killing, its press and even its public opinion would have been in an uproar.


Besides the 500 civilians who were killed in the bombing of Serbia, how many militants were killed? The inaccurate high-altitude bombings in Serbia, carried out in a manner so as to protect NATO pilots, caused mainly civilian deaths. What would have been the ratio of deaths if NATO forces were fighting not in faraway Afghanistan, but while protecting European citizens from ongoing shelling next to its borders? And there are still more chilling comparisons.



If accurate numbers were available from the wars by Russia in Chechnya, the ratio would have been far more devastating to the civilian population. Needless to say, the behavior of the Russian army in Chechnya should hardly serve as a standard for moral scrupulousness--but I cannot avoid adducing this example after reading that Russia voted in the United Nations for the adoption of the U.N. report on Gaza. (The other human rights luminaries who voted for the Goldstone Report include China and Pakistan.) So what would be a justified proportionality? The Goldstone Report never says. But we may safely conclude that, if the legal and moral standard is current European and American behavior in war, then Israel has done pretty well…

William Galston Answers Mansfield

Freedom Agenda

Obama’s politics aren’t anti-democratic. They’re liberal.
· William Galston
· February 4, 2010 5:35 pm

Our political debates, our public discourse—on current economic and domestic issues—too often bear little or no relation to the actual problems the United States faces.

What is at stake in our economic decisions today is not some grand warfare of rival ideologies which will sweep the country with passion, but the practical management of a modern economy. What we need is not labels and clichés but more basic discussion of the sophisticated and technical questions involved in keeping a great economic machinery moving ahead.

The national interest lies in high employment and steady expansion of output, in stable prices and a strong dollar. The declaration of such an objective is easy; their attainment in an intricate and interdependent economy and world is a little more difficult. To attain them, we require not some automatic response but hard thought.

--John F. Kennedy, Commencement Address at Yale University, June 11, 1962
We deliberate, not about ends, but about means.
--Aristotle, Nicomachean Ethics III. Iii

Harvey Mansfield, the well-known conservative professor of political philosophy (and—full disclosure—a longtime friend) has penned a serious and civil critique of what he takes to be the animating impulse of the Obama administration. The nub of his argument is that Obama is a “progressive” whose purported non- (or post-) partisanship is designed to put certain issues “beyond political dispute” so that arguments are about means, not ends. And once the argument is about means, the door is opened wide to “rational administration” and the rule of experts.
Take health care. Mansfield interprets Obama’s statement that "I am not the first president to take up this cause, but I am determined to be the last" as an effort to take the issue out of politics once and for all—to decide, by side-stepping, the fundamental issue of principle. In his view, that issue is: “Should the government take over health care or should it be left to the private sphere?”

The question precedes, and trumps, the myriad technical issues that transform the reform impulse into impenetrable, trust-destroying 2,000-page bills. By pursuing reform without dwelling on that question, he writes, Obama's worldview “wants to put an end to politics. It considers its measures to be progressive, and progress to be irreversible.” The problem with progress, so understood, is that it is at war with political liberty, rightly understood. One cannot seek to place matters of principle beyond politics without wanting “an imposed political solution.” Some human beings—and by implication, political parties—love progress more than they love liberty; others reverse the hierarchy. Mansfield stands with the party of liberty, the republican principle, against the party of progress, the party of rational administration, which is “more suited to monarchy than to republics.”

Where to begin? Mansfield offers an elaborate argument in defense of the proposition that Obamacare represents a government takeover. I disagree and could offer an equally elaborate rebuttal. I could argue, as well, that Obama’s appeal to transcend the division between red and blue America reflects not a desire to end partisan argument, but rather most Americans’ disgust with the contemporary hyper-partisanship that thwarts effective governance and allows problems to fester indefinitely. These are hardly trivial matters. But because they would divert us from the questions Mansfield raises, I shall pursue them no farther.

As Mansfield knows very well, he does Democrats no favor by framing current disputes as conflicts between progress and liberty. In American politics, the defenders of liberty always occupy the rhetorical high ground. If there really were a contradiction between progress and liberty, progress would surely lose—and so would the party of progress. So there are two questions. First, is there such a contradiction? And second, if there isn’t—if what we really have is a dispute between two competing understandings of liberty—which should we prefer?

I can dispose of the first question quickly: There is no inherent contradiction between progress and liberty. Simply put, removing issues from the political agenda—placing them beyond dispute—often promotes liberty. After political contestation and a bloody war, we decided that slavery was impermissible, and we reordered our laws and institutions accordingly. A century later, we made a parallel decision about racial discrimination, with similar consequences.
I suppose we could view these questions as permanently open to debate. But we don’t, and rightly so. In that sense, there is a “progressive” component to our political history: While some questions remain open, others don’t. And there’s nothing wrong with that. Settling questions neither ends politics nor denies liberty.

Mansfield might reply that, while some disputes raise such fundamental issues, most don’t, and it disserves political liberty to place the latter beyond the bounds of ordinary political contestation. Fair enough. So what is Obama actually saying—about health care, for example?


As I understand the president’s argument, it goes something like this: Our current health care system’s costs are rising at an unsustainable rate, threatening businesses, households, and our public finances. At the same time, nearly 50 million people go without health insurance—some by choice, to be sure, but most out of necessity. The only way to deal with all these problems effectively is to get nearly everyone into the insurance system, with a mix of subsidies and mandates, while creating a more competitive market among insurance plans. He may be right about this, or he may be wrong. But the key point for my purposes is that he is putting forth his plan as the means to an ensemble of ends—universal insurance coverage in a system that reduces the rate of cost increases—that he takes to be both desirable and essential to the long-term common good.

This is a political argument, pure and simple. The president never intended to side-step politics, and he certainly did not succeed in doing so. He hoped that his articulation of the good to be achieved through his plan would outweigh the objections—such as cost and complexity—that he knew would be arrayed against it.

There are several ways to disagree with the president’s proposal. One is to say that while his ends are defensible, his means are defective. This is the line that Representative Paul Ryan takes, as the president has acknowledged. But note that this debate lies squarely within the arena of deliberation as Aristotle defines it. Nothing apolitical or liberty-denying about that--unless deliberation itself suffers from these defects, which would be an odd contention.

Another way of disagreeing with the president is to say that his ends are less important than he thinks—otherwise put, that we can better serve the public interest by giving priority to competing ends. In this vein, many Republicans contend that because even people without insurance get care when they need it, through emergency rooms or charitable organizations, it is unnecessary to use either legal coercion or public funds to universalize insurance coverage. And many fiscal hawks argue that the mechanisms the president uses to fund his proposal—tax increases and Medicare cuts—should be used instead to reduce the long-term federal budget deficit, which is projected to soar unsustainably. Again, a classic political debate, of the sort Aristotle analyzed in the Rhetoric, and the president has done nothing to short-circuit it.

Mansfield gives short shrift to both these sorts of disagreements, focusing instead on a third, which is (to repeat) whether government or the private sphere should take the lead. He describes this as a question of “principle.” Is it? No doubt this question frames a major disagreement between the two political parties, and among Americans. And, as I’ve argued repeatedly, public mistrust of government has done more than anything else to weaken the president’s health reform effort.

The deeper question concerns not public sentiment, but, rather, the basis on which government may legitimately act under the Constitution. In 1933, FDR argued that that only the powers of government could be adequate to the exigencies of the moment. If so, he said, it could not be the case that our Constitution had disabled us from meeting a grave threat to the general welfare, and potentially to constitutional government itself. He won that argument: We live today in the legacy of his victory, and (I say this at the risk of sounding “progressive”), we’re not going back.
The alternative formulation of the dispute--Mansfield’s, I think--is that the issue isn’t the relation of means and ends, but rather the right of government to act in certain ways. If government doesn’t have the right, then considerations of efficacy are irrelevant. Even if government could bring about a good result by acting ultra vires, doing so would be an invasion of liberty, which is the most fundamental good. Rather than invade liberty, we should be prepared to live with the consequences of government forbearance. (I note for the record that if Abraham Lincoln had accepted this view, we’d probably be presenting passports at the Virginia/Maryland border.)

This brings me to the second question: If the issue is liberty, what is the nature of liberty, rightly understood? And does the Obama health care plan invade liberty, so understood?

To begin, experience gives us no reason to conclude that government is the only, or always the gravest, threat to freedom; clerical institutions and concentrations of unchecked economic power have often vied for that dubious honor. The unchecked market, moreover, regularly produces social outcomes at odds with the moral conditions of a free society. Capitalism does not reliably produce, or reward, the good character a free society needs: Perceptive observers from Charles Dickens to Tom Wolfe have given us ample evidence to the contrary. And, while it may be that long-term dependence on government saps the spirit of self-reliance that liberty requires, there are other forms of dependence---economic, social, and even familial---that often damage character in much the same way.

At the heart of the conservative misunderstanding of liberty is the presumption that government and individual freedom are fundamentally at odds. At the heart of any liberal understanding of freedom is the proposition that public power can advance freedom as well as undermine it.

In the real world, there is no such thing as freedom in the abstract. There are only specific freedoms, which differ in their conditions and consequences. FDR famously enumerated four such freedoms, dividing them into two pairs: freedom of speech and worship; freedom from want and fear. The first pair had long been recognized and enshrined in the Constitution. The second were a new formulation, and Roosevelt made them concrete when he signed Social Security into law, justifying it as a way of promoting freedom from want: "We have tried to frame a law which will give some measure of protection to the average citizen and to his family ... against poverty-ridden old age." Three years later, he declared that Social Security payments will "furnish that minimum necessary to keep a foothold; and that is the kind of protection Americans want."

The conservatives of his day dismissed the second pair as "New Deal freedoms" rather than "American freedoms." But those who have experienced the freedoms made possible by the New Deal are not so dismissive. It is often observed, rightly, that Social Security has virtually eliminated poverty among the elderly. But this noble achievement has an equally profound flip side. Throughout human history, those who reached the age where they could no longer work have typically depended on their children or on charity for their basic subsistence. Social Security broke this age-old dependency by giving the elderly a minimum degree of economic self-sufficiency, expanding their range of effective control over the conditions of their post-retirement years.

"Freedom of" and "freedom from" have distinctly different structures and implications. "Freedom of" points toward spheres of action in which individuals make choices--for example, which faith to embrace, or whether to endorse any faith at all. The task of government is in part to secure those spheres against interference by individuals, groups, or government itself.

It is also to police the boundary between actions that principally affect individual agents and actions that impose costs and restrict the liberties of others. Suppose a healthy young man making a good living chooses to go without health insurance and then, while speeding helmetless on his motorcycle, incurs a severe injury that is treated at vast public expense. Because his choice imposes costs on others and restricts their liberty to use their resources as they choose, government has the right—and in some circumstances the duty—to intervene.

So when the Tea Partiers complain that a government health insurance mandate invades their liberty, they reveal a defective understanding of the logic of liberty in a modern society. Individuals who choose to go without health insurance could try to resolve the contradiction by signing a document foreswearing all reliance on health care they didn’t pay for themselves. But, because our medical norms don’t permit us to leave injured accident victims at the side of the road, such a document couldn’t be enforced. To be a citizen of the United States today is to live in a community where individual health care choices can have social consequences, a fact to which government can legitimately respond.

The other face of freedom--"freedom from"--points toward circumstances that (it is presumed) we all wish to avoid. In such instances, the task of government is, so far as possible, to immunize individuals against undesired circumstances. Here, government acts to protect not individual agency and choice, but rather an individual's life circumstances against outcomes that no one would choose, or willingly endure.

It follows that the "right to choose" is but a part of freedom in the fuller sense. As a motorist, I am rightly free to choose my own route and destination. But government correctly infers that I also wish to be protected from smashing into other cars, and so restricts which side of the road I and others can drive on. My desire to avoid an accident is no less real than my desire to drive where I please. Similarly, the desire to avoid want and fear is no less real than the desire to speak and worship without interference. The point is that any society that takes freedom from want and fear seriously has made collective decisions: Certain conditions are objectively bad; its citizens should not have to endure them if the means of their abatement are in hand; and individual choice is not a necessary component of, and may be a hindrance to attaining, these freedoms. The current debate over health care only underscores these truths.

None of this is to deny that government can, and often does, overstep its bounds. And when it does, the friends of liberty must resist. Nor is it to deny that the progressive impulse Mansfield criticizes can go too far. In his June 11 commencement speech at Yale, JFK was surely wrong to claim that government’s role in a modern economy reduces to “management” based on “technical” issues. It is that, but it is more than that. No wonder that the end of ideology Kennedy reflected and celebrated quickly gave way to a rebirth of deeper disagreement. To the extent that the managerial ethos evades or suppresses these disagreements, it does a disservice to politics in a free country.

Still, when Kennedy declared in 1962 that “the national interest lies in high employment and steady expansion of output, in stable prices and a strong dollar,” he elicited little disagreement. Nor would anyone making that statement today. Modern politics is in part technical, a matter of fitting means to undisputed ends. When Democrats assert, and Republicans deny, that last year’s stimulus package is boosting output and employment, they are not arguing about goals. They are arguing about means and about facts. And, more than that, they are arguing about competing understandings of how the world works. Liberals are more apt to focus on the good government can do and to fasten on the inadequacies of markets. For Republicans, it is just the reverse.

The debate over health care reform reflects this competition. How could it not? But to say, as Mansfield does, that the president’s belief in the ability of government to improve our health care system reflects a preference for progress over liberty only obscures what is really at stake. The president’s stance threatens neither political liberty nor individual liberty. His argument does not remove—and was not intended to remove—the issue of health policy beyond the bounds of political argument. It seeks, rather, to ground his proposals in considerations that most citizens would regard as weighty if not dispositive. And his proposals reflect an understanding of individual liberty in the modern state that has far more to commend it than does the understanding to which Mansfield appeals.

The Wisdom of Harvey Mansfield ?

What Obama Isn't Saying

The apolitical politics of progressivism.

BY Harvey Mansfield



"I am not the first president to take up this cause, but I am determined to be the last.”

The words are those of President Barack Obama speaking to Congress on health care reform on September 9, 2009. They contain the secret of his appeal—and the cause of his first-year failure.

His appeal from the first has been to be beyond ordinary politics. Ordinary politics is partisan politics, and to be beyond it is to be nonpartisan or, as sophisticates say, postpartisan. Obama has the cool of a nonpartisan, quite unlike the late Edward Kennedy, who was a paragon of partisan heat and sweat. But beyond politics is not just a mood, it’s a place and a situation. Obama’s aspiration, the goal of his politics, is to put the country in a situation that no longer requires parties, when at last partisan rhetoric has accomplished its task, advocacy is inapt, sympathy and zeal are no longer needed, and postpartisan cool is correct.

Postpartisan cool is not, however, the mere sign of an intellectual fad such as postmodern relativism. One can see Obama’s aspiration in the first Democratic president, Thomas Jefferson, who founded not only the Democratic party but also the idea of party government in America. After forming the first publicly avowed party against the Federalists, he proceeded to announce in his first Inaugural Address that “we are all Republicans, we are all Federalists.” “Republicans” meant Democratic-Republicans, later Democrats. Yet the best word to describe Obama is progressive, for -nonpartisanship in politics is inherent in the idea of progress.

What every progressive wants is to put the particular issue he espouses beyond political dispute. Obama wanted, and as his first State of the Union address showed still wants, to put health care beyond politics so that he can be the last president to be concerned with it. He did concede in that speech “philosophical differences” between the parties, “that will always cause us to part ways.” But he did not say what these differences are and seemed to assume that they would only infect “short-term politics” by serving the ambitions of party leaders. True leadership in Republicans would require them to cooperate in the reform despite their ambitions and their philosophy. Once the bill is enacted, health care need only be administered by experts whose main task will be to adjust (i.e., expand) its extent and to cover its costs. The principle will have been decided. It becomes an entitlement that is no longer open to political controversy; it is secure from second thoughts prompted by reactionaries.

But what is the principle? Obama acts and speaks as if there were no question of principle, but of course there is one, and it is perfectly obvious to the public: Should the government take over health care or should it be left to the private sphere? A government takeover does not require the single-payer system of Canada and Britain; it follows easily enough from the government’s guarantee of health care to all. This general guarantee is quite different from regulation or particular requirements on private parties because it gives the government responsibility for the result and permits, even demands, that it interfere to make health care available to all. “Available to all” is a phrase that at the least creates pressure to make the best health care equally available. This is government takeover in principle if not in administration—which is not to say that a decentralized administration would make no difference.

Government takeover or not is the issue at stake, but Obama has attempted to blur it. He says that the question is not whether government is big or small but whether it “works.” This is manifest evasion, as it can work either way and the question is which is better. Obama admitted that he could have done a better job with rhetoric, but at the same time he implied that he had been defeated only by rhetoric. In fact, it was not he but his Republican opponents who posed the issue of principle, for Obama was looking ahead beyond the passage of the health care bill to the time when it would no longer be disputed. He advanced the end to the beginning and middle of the process, as if there was little or nothing to be debated, only how the nonpartisan end was to be accomplished. For example, the “public option” of government health insurance was sold as an item of consumer choice as if it were quite comparable to private insurance while at the same time serving as the standard for such choice, to establish what is good enough and cheap enough for all. Instead of raising the issue of government vs. private control, this nonpartisan strategy made government control appear to be another option in the health insurance market rather than regulator of the market.

One might call this sort of governing rational administration or rational control. It is government directed by reason that does not appeal to reason but rather to subrational motives that will lead people to do what is rational without their quite understanding what they are doing. An appeal to reason would be a straightforward argument in favor of the principle of government control of health care, but this is thought to be too divisive and too demanding to succeed. So, rather than espouse the principle, Obama has evaded it, and done his best to keep attention focused on the result. The result is described in terms of present benefits made cheaper and more secure, with no attempt to explain how health care as a whole might look and feel when controlled by the government. It might, after all, be enhanced by a new sense of community—which is the benefit put forward by advocates of straightforward, single-payer government control. But to do this, Obama would have to argue against opponents of government control. They will say they cannot believe we will not suffer when health care is managed by bureaucrats, who like children want to touch everything with their sticky hands. There is too much risk in a debate of principles. You may wake up more opponents than you gain converts.

Obama has in his White House a Harvard law professor, Cass Sunstein, who recently coauthored a book that sets forth the idea and some techniques of rational administration. The book is entitled Nudge, and it shows how people can be nudged to make a rational choice when they cannot be openly persuaded to do so; for example, children in a school cafeteria might by careful placement of choices be gotten to select grapefruit rather than marshmallow. Similarly but on a grander scale, Obama wants to nudge the American people to approve the health care that is rational for them to choose.

But he has so far failed. The reason, fundamentally, can be found in our constitutional form of government. Rational administration is more suited to monarchy than to republics. The classical exposition of the idea of governing by reason through human passions is in the political theory of Thomas Hobbes, who favored monarchy over a republic. The classical demonstration of how rational administration operates is in Tocqueville’s book on the Ancien Régime, which shows how administrators of the French monarchy—particularly Cardinals Richelieu and Mazarin—made it dominant by using reason without ever arguing principle.

Obama is not our king. But he uses the monarchical branch of our republic without embarrassment to project the nonpartisan image of a monarch. He has not been a strong president; he has deferred to Congress, perhaps to his cost. But he likes the aura of monarchy and uses it skillfully to transcend partisan argument. He lets us know that he admires Abraham Lincoln, yet his speeches could not be more different from Lincoln’s in respect to argument. Lincoln used argument to transcend momentary feelings. Obama avoids it by recourse to vacuous words like “change” and “hope,” never saying toward what or for what.

The Constitution, however, maintains a separation of powers that allows and facilitates opposition to the majority. In this case Republicans, prompted by tea party activists, were induced to give voice to their principles and thus give substance to resistance that might otherwise have seemed a mere defense of the status quo. For, in fact, most Americans are satisfied with their health care, and they can easily conclude that they have more to lose than to gain from “reform.” The Democrats found themselves in the strange position of denouncing generous health care insurance, often secured by unions who support them, as “Cadillac plans.” Hypochondriacs they must be who dare to desire better health care than Big Government is prepared to provide them. Let’s tax them! Here was a vivid demonstration of the progressive principle in deed even as it shied away from expression.

We shall see whether Obama is goaded into arguing the principle behind his health care plan (and his entire administration, for that matter). He understands that his principle prospers best when it is not enunciated. His politics is apolitical; it wants to put an end to politics. It considers its measures to be progressive, and progress to be irreversible. Only through this conception can one recognize, and understand, the pretentiousness of wanting to be the last president to take up health care.

An analogy of partisan politics to athletics may be helpful. A Harvard fan like me always wants to defeat Yale but at the same time always wants to defeat a worthy opponent. It’s a contradictory desire in principle because a worthy opponent will sometimes win. But in practice one learns to lose. Someone might object that to win an election is more important than to win a game. To which I respond: Maybe so, but it is more important to continue to have elections than to win one of them. Next to liberty of the mind, there is no more important liberty than political liberty. This means that no partisan victory is permanent and that we shall always return to different versions of the same questions. Progress can never make political liberty obsolete by solving the problems that we contend over. Those who want to put an issue like health care “beyond politics” simply want an imposed political solution to their liking.

In these pages recently, James Ceaser made the argument that Obama is inspired by the religion of humanity (see “The Roots of Obama Worship,” January 25, 2010). The desire to act on behalf of humanity betrays impatience with the contentiousness of politics within nations, where life is always both inspired and bounded by partisan and national loyalties. Over time the devotees of progressive politics discover that they can do away with domestic political differences only through a globalization that does away with national differences. That is why multiculturalism—which is today’s downsized term for the religion of humanity—is both a domestic and a foreign policy.

Obama’s opponents sometimes dismiss his nonpartisanship as just a cynical mask for his progressive partisanship. But I agree with James Ceaser that Obama’s profession to be beyond politics is essential to his politics and must be taken seriously. To take it seriously one must find an answer to it. What is it in human beings that makes some of them love progress more than liberty and makes others love liberty more than progress?

Exchange on Kasher

SMacEachern2

I dissent because of sections like this (which is an important section):

"When Israel does not have effective control over a territory, the moral responsibility for distinguishing between terrorists and non-combatants is not placed upon its shoulders. Gaza was not under our effective control. Therefore, one does not have to jeopardize the lives of the troops in such circumstances just for that sake. If you look at non-combatants in a territory where one does not have effective control and have already made a series of warnings that are known to have been effective, then the lives of the troops come first."

Look at the number of self-contradictions in that paragraph, starting with the ending. How does one judge if a warning has been 'effective'? Presumably, if all non-combatants have left an area, it has been effective, but the issue here is precisely about cases where non-combatants have been killed in Israeli attacks - ie, the warnings have _not_ been effective. As Walzer and Margalit say, there are a whole variety of reasons for not leaving a particular place, especially when (as was the case in Gaza) such warnings are often widely dispersed: one may not get the warning, one may not be able to move, fighting in surrounding areas may make it too dangerous to move (where was the refuge zone in that case?), one may unknowingly move into another area under threat, and so on. He can shrug and say that the "...person who does not know where to go is a myth...", but in fact there were numerous such cases from Gaza. If you and your family must step out into an exterior environment where you may well be killed by a tank round or a drone because you are mistaken for combatants, what good does a warning do?

Kasher's claim is that warning non-combatants substantially removes the necessity for further distinguishing combatants and non-combatants, which will certainly lead to innocent deaths. Earlier in the paragraph, he takes that to an even more extreme level, claiming that "...When Israel does not have effective control over a territory, the moral responsibility for distinguishing between terrorists and non-combatants is not placed upon its shoulders." This means that Israel would simply give up on trying to avoid civilian deaths in any extra-territorial military action. Furthermore, the majority of cases of civilian deaths in Gaza were not inflicted with troops in contact or in danger: they were inflicted with artillery, long-range tank fire and air-strikes of various sorts.

He appears to be arguing, however, that citizenship trumps non-combatant status: that a country's duties to its own soldiers as citizens trumps its duty to non-combatants in a war zone, such that it is permissible _without taking any other criteria into account_ (the distinction is important) to kill civilians in order to protect one's own soldiers lives. He is also inconsistent: if 'reservist' status for policemen in Gaza (and this has been disputed) opens one up for attack while not engaging in military activity, does participation as a reservist in IDF duties open one up to similar attack?

It is a policy of moral bankruptcy to argue that Israel's conduct in Gaza was defensible _because there were not even more civilian casualties_: if 10,000 Palestiian civilians had died, Kasher could as logically have argued that Israel's conduct was defensible because 100,000 were not killed. Similarly, American operations in Fallujah (or, say, Russian operations in Grozny) do not serve to excuse any shortcomings of Israeli operations in Gaza.

As for a 'policy of trigger-happiness', the issue is not in my mind anyway that Israel in Gaza operated like Russia in Grozny: the question is, where there specific policies that tended to lead to unneeded civilian casualties? Articles like this (http://tinyurl.com/ydon299) suggest that there were.

As for Kasher's article in general... it's a post hoc justification of what happened in Gaza. Doesn't really matter what actually happened - he still would have found a way to justify it.

Me:

No doubt we start from radically different premises that inexorably will lead us to irreconcilable conclusions on these issues, but let me deal with your arguments regardless.

Firstly, different from you I found the section you quoted consistent, without contradiction and straightforwardly sensible.

Secondly I don’t grant your test for judging effective warnings. One can think of practical ways warnings might be dispensed—leaflets, radio warnings, time lags between such dissemination and the start of military activities, and so on—but we’d need to separate those warnings from the population’s response to them. If for any number of reasons—including, I don’t know, countermand and pressures from Hamas—the population didn't leave then I still say Israel in its dissemination acquitted itself. If the test was as you suggest, then Hamas could prevail on the regular population to stay put and then malign Israel’s failure to warn. Also the logical absurd conclusion of your test is Israeli military impotence in the face of a population that won’t heed the warnings it gets.

Thirdly, let’s unpack some of the realities on the ground. Israel does not control Gaza. Hamas refuses to heed the visible distinguishing between combatant and non combatant. Worse, it insinuates itself amidst the civilian population to take advantage of enlightened Israeli sensitivity about wanting to minimize civilian wounding and death. And still worse, it then launches its rocket attacks under the hoped for protection of a civilian shield. Assuming after some point and some number of rockets, Israel has to act in own self defense, what is it to do and what harm is it supposed to expose its soldiers to in response to Hamas’s tactics?

Once effective warning is given—something, I argue, to be tested empirically by the actuality of the warnings, not the actual dispersal the warnings lead to, I agree with Kasher and Yadlin and Halbertal, over Walzer and Margalit, that Israel, no state in fact, needs to expose its soldiers to the dangers of boots on the ground assurance that no civilians are afoot before military action begins. And on this basis, I agree with the assessment of, and assignment of, moral blame for Palestinian casualty against Hamas.

Fourthly, you are way too binary when you say “This means that Israel would simply give up on trying to avoid civilian deaths in any extra-territorial military action.” Respectfully, that comes nowhere near to following and elides measures taken to minimize civilian casualty. Those measures include pre action intelligence meant to ensure isolating militarily necessary targets, effective warnings, and tailored strikes. (Both Halbertal and Kasher note the fact of lower civilian to military death ratios in Lead Cast compared to any recent asymmetric campaign and the dearth of outcry against other warring nations than Israel.)

If the above, and Kasher’s analysis, be moral bankruptcy, I had better book an appointment with my moral trustee. But really I don’t think so.

Finally, for myself, I would not, in wanting to criticize Kasher, impugn his motives. Rather I’d try to deal with his arguments on the merits, which I have read you in the main to do, though, by my lights, unpersuasively.