Friday, 31 May 2013

On Woolwich, Counter-Terrorism and Leaderless Terrorist Movements

Brutality or, at least, its coverage in the mainstream press, has the effect of revealing much more about its commentators than the act itself. Each writer has his or her own take and very few commentators really 'learn' from these types of events, except in the sense that one 'learns' that one has been correct all along. A right-wing pundit might see in the Woolwich murder a reiteration of the senseless barbarism of the Islamic faith's crudest elements, whilst a left-wing commentator might view the same event as a stark reminder of the marginalisation of Muslims in post-9/11 Britain. Opinions, therefore, remain largely unchanged, only held with more vigor; catharsis comes only in the form of the state proudly declaring its toughness in the face of such wanton destruction from "the other." Toughness, in this instance, being shorthand for overbearing, illiberal attacks on free expression, free association and privacy - supposedly bedrocks of the liberal democratic state - in reality, political bargaining chips to be traded and discarded at a moment's notice for the sake of appearing iron-willed and resolute.

It should, of course, go without saying that the murders in Woolwich were in no sense acts of politically serious individuals utilising strategic violence for political ends - 'terrorism', by another name. At least, not terrorism as has been commonly understood. Terrorism in its common form has an entrepreneurial, hierarchical command structure and a steadfast dedication to propaganda by deed. Discipline, therefore, is paramount, and what the Woolwich murders and, their US counterparts, the Boston bombers, certainly lack is the rigid militaristic discipline of Osama Bin Laden or Khalid Sheikh Mohammed. What the Woolwich murderers and the Boston bombers instead represent is a new and deliberate kind of leaderless jihad which views itself as a temporary stopgap measure in the fact of traditional Islamic terrorism's defeat on the battlefields of Iraq and Afghanistan. 

Leaderless jihad is terrorism for the iPod generation. Instead of getting your ragtag bunch of guys together to demonstrate your commitment to the cause in order to be shipped off to a jihadist training camp and be shown the ropes by ex-Mujaheddin fighters and other dedicated Islamist warriors, a would-be terrorist can simply download his or her professed ideology, pick and choose whichever radical clerics they wish and share their tough-talk on jihadist forums. If they're the Real Deal, they can then make a crude explosive device to be detonated in a crowded area, or simply drive into town with a meat cleaver and hack apart the first British army officer they see and proudly proclaim to be fighting for their brothers in Iraq, Afghanistan and Palestine. The fact that these leaderless jihadists have never set foot in any of these countries or that the majority of people suffering as a result of western policy in these areas would likely disapprove of this wanton destruction is irrelevant. Their pain and outrage is vicarious - they are fighting in the belly of the beast for those whose pain they've experienced through the influx of information coming from mainstream news outlets and jihadist conspiracy theory websites.

This isn't to say that leaderless jihad is an entirely grass-roots phenomenon. As a tactic, it borrows heavily from the white supremacist movement in the United States, who have in the past few decades articulated and relied on the tactic of leaderless resistance in the face of widespread surveillance from the US government. In essence - where hierarchical command structures fail, leaderless resistance thrives. A leaderless movement is virtually impervious to infiltration, since anything short of round-the-clock spying on every single citizen around the world leaves open cracks through which a lone wolf can slip. On the downside, leaderless resistance represents in many ways the death rattle of a terrorist movement - it's going out, but with guns blazing, and a sign that a group is utilising a leaderless strategy is in many ways a sign of a movement on the ropes.

The leaderless jihadi movement finds its origins in the writings of the Islamic militant Aby Mus'ab al-Suri, an al-Qaeda strategist credited with responsibility for the 2004 Madrid Bombings and the bombings in London in July 2005. In al-Suri's analysis, America has employed her "stunning technological superiority" to completely dominate the battlefield. In this sense, therefore, a "secret-regional-hierarchical" structure is a strategic impossibility, and al-Suri's solution to this conundrum is what he terms a "Global Resistance Call" - a sort of information warfare, in which ideology, military tactics, vulnerable targets, bomb-making instructions, etc. are disseminated to impressionable Islamist activists across the globe. All that is required for this strategy is an open means of communication and a sufficiently embittered, impressionable audience. It should give us pause for thought that neither the Woolwich attackers nor the Boston bombers had reached the age of 30 yet - terrorism is as much about impressionable, misguided youth as it is about fanatics flying aeroplanes into buildings.

The question, therefore, is what is the proper policy response towards this kind of structurally anarchic political resistance? It should go without saying (though frequently doesn't) that measures outlawing "extremist" speech or increased surveillance on "vulnerable communities" (read: spying on Muslims) are unlikely to do much to address the problem. As said above, anything short of total surveillance of information,  a technologically impossible policing of the internet (including restrictions on the online underworld of the deep web) and widespread bugging of all public places would still render our public spaces vulnerable in a tactical sense to the sorts of attacks which occurred in Woolwich and Boston. In terms of a law-enforcement response, there is very little that separates the attacks of a leaderless jihad from your average back-alley knife murder. Neither rely on much in the way of resources or hierarchical command, and planning can take place entirely inside the perpetrators head, rendering them potentially immune to traditional avenues of prevention. That both the Woolwich killers and the Boston bombers were aware to the intelligence authorities speaks directly to the inability for traditional means of infiltration to be anything approaching a perfect counter-terrorism policy.

Which brings us to the second source of sustenance for leaderless jihadists - the sense of vicarious (and sometimes directly influenced) outrage and marginalisation. A liberal democracy utilising harsh, draconian crackdowns on extremism which in effect amount to marginalisation of a religious minority is likely to run the risk of that deadly combination of freedom to act and minority repression on which terrorism thrives. Our counter-terrorism policy and the language of our coverage needs consistency in order to be seen as legitimate. The fact is that many Muslims, not unjustifiably, see counter-terrorism measures and commentary in the US and the UK as maximising the scale of violence emanating from Islamic communities and branding it as terrorism, whilst minimising the violence committed by white westerners as traditional "ordinary" violence. 

It shouldn't be necessary to say this (though it is), but none of this is to bring legitimacy to the kinds of violence experienced in the US and the UK over the past few months, only to understand its causes. The notion that minority discrimination causes politically motivated violence is well-established in the academic literature, and tub-thumping, grandstanding claims about the immorality of the evil-doers or apocalyptic calls to arms against the forces of barbarism do nothing to address the problem. In fact, they merely inflame already existing tensions and provide terrorists with the conceptual framework they desire - that this is, fundamentally, a war over ideology and religion rather than a law-enforcement phenomenon whose victims are few, yet visceral and wanton enough to warrant a serious response. 

It is in this, therefore, that we find the proper scope of our counter-terrorism response - one that needs to be explicitly focused on violence per se, rather than policing ideology (however repellent) or religious communities. It might come as a surprise to some that even many Salafists are turned off by the kinds of short-sighted calls to arms being expounded by Muslim youths, and yet find their position as ideological, though non-violent, extremists capable of dissuading young Islamists with something to prove increasingly threatened by the zero tolerance approach adopted by many elements of the more hardline counter-terrorist policies. 

Unless, therefore, western counter-terrorism policies begin to work in conjunction with and for the benefit of marginalised religious minorities, it is likely that we will see more violence of the kinds exhibited over the past few months. Looking 'tough' on terrorism and giving lofty speeches about the threats posed by radical clerics might be politically expedient, but as a means to combat the violence stemming from all sorts of politically disaffected individuals, it is deeply unserious and lacks any kind of true tactical rigor. In future, then, we might find that making more friends than enemies works out best for everyone in the long-term.

Friday, 3 May 2013

Sam Harris and the Ethics of Torture

Sam Harris has been having a bit of a rough time recently. In addition to being denounced to the point of ridicule as a neo-con apologist in the New Media, the old media has started taking shots. Glenn Greenwald's piece in The Guardian, it seems, was the final straw, and now Harris has revised the section of his website in which he takes the time to address in more comprehensive terms his exact position on his alleged "thought experiments" that have angered the liberal intelligentsia.

As someone who wrote a fairly lengthy critique of Harris a while back, I was all up for this - I've never been of the impression that Harris is a genuinely malicious individual intent on providing moral justification for war crimes, and it's always worth giving people an opportunity to explain themselves. The problem with Harris isn't that he's explicitly bad-natured,  but that his past writings on just about anything besides neuroscience reveal him to be a lazy thinker who fails to properly consider the implications of the things he says in public. Unfortunately, his latest revision of his response to critics smacks of a thinker wanting to eat his cake and have it; in one breath denouncing Abu Ghraib as inexcusable, and the next calling for the moral necessity of torture. 

What follows is ostensibly a critique of Sam Harris' thinking on torture, because it's the aspect of Harris' thinking which I find to be the most troubling and the most morally inexcusable. However, I feel some of the issues with Harris' writings on torture can be extended towards much of his other writings on other subjects. In particular, I think Harris is particularly troublesome when he turns his attention towards foreign policy, the war on terror and ethics. His contempt for researchers in the field of terrorism studies is a separate piece in itself. So whilst this piece will address torture, it should hopefully serve as a partial critique of Harris' writings in general. So without further ado, let's jump into some of the points Harris raises.

Unfortunately Harris' response to critics on torture is largely unchanged, and he's still rehashing old points about time-bomb scenarios and posing problems he claims nobody has addressed head-on. It is true that the majority of the criticisms of Harris use his support of torture as an in-itself indictment of his writing rather than addressing his arguments. It happens that his arguments are extremely weak and rely on straw men and false equivalences, but I suppose this has given Harris the impression that his opponents don't have any ammunition. The real reason support of torture is itself an indictment is because torture has been debated extensively for centuries in philosophical and legal discourse, and due to the hard work of an extremely dedicated human rights legal movement, is now considered a jus cogens crime in international law. That is, it's a crime on which moral debate is presumed to have ended, and anyone committing such a crime can be subject to universal jurisdiction. What that means is, say you're a high-ranking government official responsible for torture in, oh I dunno, Chile - you can be arrested in England with an arrest warrant written by a Spanish judge and tried in an English court and found guilty of your crimes.

Legal positivism is, of course, no argument in and of itself - it won't do to simply say it's illegal and that's that. Not least because, strangely enough - Harris bizarrely argues that torture's (il)legal status should remain, but that it should still be employed in extreme circumstances. Maybe it's a lack of imagination on my part, but I fail to see the point of having reams of treaties, statutes, case-law judgments, etc. converging on torture's illegality if security officials going to on a whim suddenly decide that Scenario A is "extreme" enough to warrant torture. Harris' rebuttal is to compare torture to trespassing - as trespassing on someone's property may be illegal, but ethically necessary, so it goes with torture. Yet unless one gets specific with thought experiments it's difficult to engage in them properly; as it stands, any well-drafted law on trespassing will have caveats built into it to not incriminate a person performing an ethically necessary act, and a common-law system will give a fair amount of discretion to a judge on deciding whether a strict application of the law is appropriate for a trespasser who was, say, using the land as a shortcut to take a dying person to the hospital.

Anyway the comparison between torture and trespassing is spurious since it's quite plain that there are different justifications for outlawing trespass and torture. The former is, amongst other things, to ensure property rights are legally meaningful. Torture, on the other hand, has reams of reasons for prohibition ranging from the consequentialist (torture isn't effective and may be counter-productive) to the deontological (torture is a degradation of humanity regardless of consequence) to virtue ethics (a torturer does not possess morally desirable characteristics) to straightforward old-fashioned international legal rules about reciprocity (if you throw away the rulebook, so will everybody else). Using all moral frameworks except from an extremely crude version of utilitarianism in fact bodes not so well for the pro-torture advocate. As it stands, the prohibition on torture within international law is non-derogable, and is so precisely because exceptions to the rule in "extreme" circumstances quickly become the norm. If you think  this applies only to other countries and not nice western democracies, then check out the Constitution Project's report on US detainee mistreatment and then realise that Bush-era torture policies extended to far more than the 9/11 hijackers. What was justified in exception became the norm.

Harris is, however, right to say that the fact that torture was abused in the past does not logically entail that it will always be abused and a 'perfect' torture policy (ahem) is conceivable in a conceptual sense. That is - one that is only used in the most extreme ticking-bomb scenario and that always yields the information that it is aimed at extracting. Yet even if you allow all the premises (which I wouldn't, but let's bite) that this New Torture Regime will ensure that it its use only ever occurs in a ticking bomb scenario and that its use would yield useful information that would lead to the disarming of the bomb, it's still far from a foregone conclusion that torture is moral because you are faced with an important question, and one which I think any would-be torturer would feel extremely uncomfortable about considering its implications. That question is:

How much suffering will you permit?

The argument for Perfect Torture in a Time-Bomb Scenario relies on a fairly crude utilitarian calculus which states that the suffering of one person (the terrorist) is outweighed by the suffering that would be visited upon the inhabitants of City X, which has a bomb rigged to go off in its center. So, the argument goes, if torture is the only means of getting the terrorist to talk, we should use torture to extract that information. That is, in a nutshell, the only reasoning by which the torture-justifier supports his or her argument, and its difficulties can be highlighted by another very simple question:

What if the terrorist manages to withstand the torture, but will only talk if his innocent 6-year old daughter is tortured?

The ethically consistent pro-torture advocate, of course, would be forced to conclude that the torture of the terrorist's family and/or friends is also acceptable, providing the population of City X is sufficiently high to outweigh the suffering of those being tortured. It's not enough to say that the terrorist is the one who planted the bomb and is therefore responsible for his own torture, since the torture is being justified on the basis of lives that would be saved, not on the terrorist's responsibility for his own treatment. The time-bomb scenario is also inadmissible for other reasons relating to realism of the scenario or the fact that the terrorist could simply lie in order to send the authorities on a goose chase, etc. but as a conceptual moral argument it fails because it allows for the torture of not just the individual terrorist, but also for the torture of innocents if that'll get the prisoner talking. Oh, and yeah - this kind of thing does happen, so we're no longer arguing about simple hypotheticals. If it is morally possible to reach a point where time-bomb torture justified on the utilitarian principle of "City X would be saved" would also not permit the torture of innocents, please email me a reference.

Collateral damage and torture

The other major point that Harris presents as a kind of trump-card in his few discussions of torture is that anti-torture advocates don't seem quite so bothered about collateral damage as they do about torture. Now, right off the bat, I'm going to object, because most of the people I've seen arguing against states' torture policies are also totally not OK with illegal invasions, cluster bombs and the like, either. When you're an activist, you really can be in two places at once. It is slightly frustrating, however, to see that Harris, having argued this since 2004 in The End of Faith, either hasn't been directed to or has willfully ignored the literature on torture to the point where he still thinks this is an interesting argument.

Harris' argument, like so many of his propositions, relies on a lot of assumptions. That's permissible if one is genuinely doing hypothetical moral philosophy (If A is...then B), but it's slightly irritating to see Harris use direct examples of individuals in the war on terror like Osama Bin Laden, and talk about actual real-world conflicts and then claim he's only posing hypotheticals when he's criticised. Again, eating the cake and having it. So anyway, the argument Harris is putting forward is basically this: wars will always involve the deaths of innocent civilians, but may still be sometimes justifiable on other grounds. If one therefore justifies the deaths of civilians as a means to an end, one must also justify the torture of some captives in extreme circumstances as a means to an end. That's basically his argument, I'll quote it so readers don't think I'm being disingenuous:
My argument for the limited use of coercive interrogation (“torture” by another name) is essentially this: If you think it is ever justifiable to drop bombs in an attempt to kill a man like Osama bin Laden (and thereby risk killing and maiming innocent men, women, and children), you should think it may sometimes be justifiable to water-board a man like Osama bin Laden (and risk abusing someone who just happens to look like him).
Again, which is worse: water-boarding a terrorist or killing/maiming him? Which is worse, water-boarding an innocent person or killing/maiming him?  There are journalists who have volunteered to be water-boarded. Where are the journalists who have volunteered to have a 5000-pound bomb dropped on their homes with their families inside? 
This is, quite frankly, silly. Nobody is arguing that torture is morally worse than murder. Yet simply saying that some ethically permissible acts in war are worse than torture is not a ethical argument in favour of torture. For instance, wars involve the mobilisation of large armies, and many of the men and women in those armies are likely to be put in harm's way and a lot of them will die. That is a tragedy of war, and in a hypothetical just war scenario it is unavoidable, but necessary.

It does not, however, follow from "soldiers might/probably will die" that mistreatment of the soldiers is somehow permissible, simply because it is less bad than the worst thing that can happen - namely their deaths. Or that, say, failing to provide them with adequate food is ok on the grounds that, whilst unethical, it's still not as tragic as their deaths. I just don't see any interesting point in conflating the worst and yet inevitable aspects of just war - namely civilian deaths, as a framework for a discussion of the ethics of detainee treatment.

Harris' protestation to those who consider the comparison between torture and collateral damage to be irrelevant is to pose a scenario in which one had to choose between torturing a terrorist or bombing civilians.  "Torturing the terrorist should seem like the more ethical option", he says, but there is also the possibility of, you know, doing neither. Once you've gone out of the ticking bomb scenario, with its assumptions of Perfect Torture and Perfect Results, into a scenario in which a General has to choose between bombing a city or torturing a terrorist, you've defeated the central argument the time-bomb scenario is based on - that we cannot disarm the bomb without torturing the terrorist. If we're choosing between shooting a missile or torturing a terrorist in order to get valuable information, the only qualitative difference between the two scenarios is that with the missile, we can actually choose whether or not the bomb goes off. The ethically sensible answer is therefore to not shoot the missile and not torture the terrorist. Unfortunately, though, it's difficult to go into too much more detail on this because Harris doesn't give any actual examples of how a military officer might actually be in the position where he or she would be forced to choose between torture of a terrorist or bombing a city, and it really is such a ludicrous scenario that it warrants a little bit more than postulating that it "could happen." The example he does provide of a drone strike against a Taliban leader in which 12 innocent people were killed says absolutely nothing about the ethics of torture at all. Harris just simply says that had his wife been tortured in order to obtain "relevant intelligence" rather than killed by a missile, everything would have been OK. It seems to me that in this case the authorities actually had all the relevant intelligence, and proceeded with a drone strike that killed a bunch of innocent people, anyway - how would waterboarding the guy's wife have changed the practical realities of the military operation - would she be able to tell the authorities when all the innocent people would be out shopping? 

I'll just make this brief, practical, point - if a military officer is in a position whereby the only information that can inform his decision whether or not to bomb a target is extracted through torture - it's probably a good idea to get better intelligence.

The worst versus the still-awful-but-not-quite-the-worst

Besides, I would be interested to know how far Harris and other pro-torture advocated would take their moral reasoning regarding collateral damage as "the worst" and torture as "less than the worst" as a reason to permit torture. Consider another horrendous, yet common practise in war - that of the rape of civilian women in an occupied territory. This is, of course, a morally reprehensible act and it's rightly treated by international courts as a war crime, but according to the Harris logic, raping the women in a village is less bad than carpet bombing the village into oblivion, therefore any supporter of just war theory also has to permit rape in extreme circumstances.

You could, of course, argue that the torture is intended to serve a purpose of extracting vital information whereas rape is simply barbaric acquisition of the spoils of war, but you would be wrong. Rape is utilised by unscrupulous war criminal commanders precisely because it is an effective means of humiliating the enemy into submission and preventing an all-out conflict. None of the horrors of rape in wartime matter to the logic of the pro-torture advocate - all that matters is that a full-blown conflict has been averted and nobody was killed, since collateral damage is "the worst", whereas rape/torture is "the still-awful-but-not-quite-the-worst". Or consider our ticking bomb thought experiment above. Let's pose another question:

Suppose that the terrorist is a woman - is it morally permissible to rape her to get her to talk?

These are undoubtedly disgusting things to have to consider - which is precisely why the pro-torture argument is so useless as an ethical position. Once we follow it to its logical conclusion, we are forced to permit the most fundamentally barbaric acts of depravity simply because they appear to be "less worse" than the deaths of civilians. It is, conversely, far more ethical to treat torture with a kind of hands-off absolutism which permits it in no circumstances whatsoever, regardless of consequence or spurious comparisons to other seemingly less desirable (though separate) outcomes.

Torture is hardly the only instance in which we permit this kind of absolutism, either. Harris is a neuroscientist, and is surely aware of the benefits that would be brought to his specific field of research if him and his colleagues were permitted to experiment on live human subjects. It's entirely possible that the field could be advanced by leaps and bounds if even a small number of live human subjects (say, terrorists) were permitted to be analysed in this way. It could, in fact, lead to such advances in the field that thousands, if not millions of lives are saved in years to come if even a small number of humans were able to be used as lab rats for scientific experiments. We don't, however, permit this. Why? The reason is obvious, and there's no need to discuss it in detail, because it relies on the same arguments that render torture a morally reprehensible act.

Some other points

So I think I've addressed the bulk of what makes Harris' argument so weak as an ethical defense of torture, but here's a cheat sheet of the major points in case you need a cocktail-party rebuttal:

1) Harris tries to have it both ways by arguing for torture's utilisation in the war on terror whilst simultaneously arguing that he is merely posing hypotheticals about torture's use "in principle."

2) To the pro-torture advocate, it remains to be seen how they would permit some forms of torture (waterboarding) but disallow others (rape) since the only argument for torture is based on numbers of people dying, rather than the degree of suffering of the tortured.

3) Allowing torture, therefore, allows for the torture of many more people than merely the terrorist, and could even include the terrorist's children.

4) The collateral damage argument is spurious, because simply saying that worse things happen in war does not permit a "gloves are off" scenario (even in extreme circumstances) with regards to other aspects of war such as detainee treatment.

5) Harris' argument is notably weak because it is attempting to argue in the realm of ethical and theoretical abstraction for a policy that begins to show its true colours the more and more one applies it to a practical scenario.

There are a few other points that I'd like to address Harris on that are separate to the main arguments, but still worth addressing because they come up quite regularly in popular discussion of torture. Here they are.

1) Journalists have submitted themselves to waterboarding, therefore it is not torture

Harris doesn't quite make this exact point, but says something very similar to it:
There are journalists who have volunteered to be water-boarded. Where are the journalists who have volunteered to have a 5000-pound bomb dropped on their homes with their families inside?
These journalists generally regret their choice and nearly unanimously come out after withstanding only a few seconds of waterboarding to insist that it's a form of torture. Take this video of right-wing radio host Mancow Muller being waterboarded. His intention was to prove that it wasn't a form of torture, yet all it took was a few seconds to convince this die-hard right-winger that waterboarding isn't frivolous. It's probably more accurate, therefore, to say that journalists ill-advisedly opt to be waterboarded and regret their decision later on. That leaves us where, exactly? If suddenly a bunch of journalists opt to be placed in an iron maiden on the erroneous belief that the spikes won't penetrate the flesh so much, does that say anything about whether or not it's an acceptable way to treat prisoners in wartime?

2) Keep it illegal, but acknowledge that people will break the law in a time-bomb scenario

The problem with this argument is that it turns the legal prohibition on torture into a discretionary opt-out, thereby rendering the illegality meaningless. It preferences the whims of interrogators, who are far more likely to view their scenario as especially important, over the consensus of the international legal and philosophical community, who have worked hard to make torture a non-derogable strict liability crime for wider ethical reasons.

One could make a comparison with other forms of strict liability - take drunk driving. It's probably quite unlikely that even the majority of people over the legal alcohol limit will put someone in danger, much less kill someone. Yet if we take the same approach that drunk driving should not be a strict liability crime and that drunk drivers should feel free to break the law if they deem the circumstances extreme enough to warrant hopping in the car, it renders the whole principle of strict liability meaningless and the prohibition in reality doesn't exist at all.

3) Sam Harris supports torturing innocent people, too

Yes, he does:
If you think it is ever justifiable to drop bombs in an attempt to kill a man like Osama bin Laden (and thereby risk killing and maiming innocent men, women, and children), you should think it may sometimes be justifiable to water-board a man like Osama bin Laden (and risk abusing someone who just happens to look like him).
My italics. At the very least, this is a frank admission of where a pro-torture policy will end up taking you. Inevitably you will every so often get the wrong guy and end up submitting an innocent person to tremendous acts of barbarism and cruelty. Torture is wrong regardless of the guilt or innocence of the person being tortured, but its reality is made all the more horrifying when considered in the context of the authorities having got the wrong guy. Instead of seeing this statistical certainty as a reason to prohibit torture in all circumstances (better to let a guilty man go unpunished than punish an innocent), Harris runs head-on into it and admits that he's OK with torturing someone who 'happens to look like' the suspect you're after as long as your intention is to obtain intelligence for the war on terror.

There really is no other way to put it than to simply say that this is a sentence unworthy of an individual claiming to have something interesting to say about morality. It's regressive and barbaric, despite the scholarly detachment with which it's stated and poorly-thought out, morally irrational drivel.

Concluding remarks

I hope that I've addressed most of the points Harris brings up when discussion torture. Part of what makes this such a frustrating exercise is that Harris often seems to portray himself as a long dissident voice in moral reasoning speaking truths to absent-minded intellectuals who haven't fully considered that torture could be moral. My advice to Harris or anyone else with a sympathetic ear for his views would be to treat academic philosophy with a little bit less contempt (he calls it "boring" in The Moral Landscape) and in particular to read some legal philosophy and court judgments, and track the development of the prohibition against torture in international law. Then, maybe, he'll realise that its prohibition is not simply relegated to absent-minded squeamishness on the part of a few dewey-eyed liberals. Unfortunately, much of Harris' work seems to suggest that he seriously thinks this to be the case.

Update 1: On Nuclear Terrorism

I've recently become aware of another one of Harris' articles addressing torture. He says he'd rather not talk about it, but since he's the one who brought it up in the first place, it's simply reaping what you sow if you take flack for saying irresponsible things in public. The thing that I found most interesting, though, is that Harris tries to limit his approval of torture to the following circumstance:
We will not torture anyone under any circumstances unless we are certain, beyond all reasonable doubt, that the person in our custody has operational knowledge of an imminent act of nuclear terrorism.
This is actually the only time that Harris tries to limit his defense of torture to only the single most extreme scenario of nuclear terrorism. As noted above, his other writings reveal him to be much more cavalier about the subject, showing him justifying its use even if there's a low chance of its yielding useful information, and willing to take the risk of torturing someone who "looks like" the suspect providing the intention is good.

The above example is a demonstration of a pretty ugly side of Harris' work, revealing an instance of what is a popular term in post-modern academic circles - that of "othering". I'm not a huge fan of the term, but if we're going to use it - this seems like a good example. Harris' arguments about torturing terrorists is always couched in ways of "us" torturing "them", which from the perspective of moral and ethical debate is far more prone to hypocrisy and bias than if we imagine the same things done by "them" to "us".

Now, it turns out that we don't need to use the looming threat of nuclear terrorism as a thought-experiment boogeyman in order to debunk it because, as most readers will know, nuclear bombs have actually been used twice before in wartime by the US against the Japanese. It would be interesting to hear Harris answer the following question:

Had Japan learned of America's intentions to drop a nuclear bomb beforehand, would it therefore be ethically necessary for the Japanese to have captured and tortured high-ranking US officials in order to obtain intelligence necessary to prevent the nuclear bombs being dropped on Hiroshima and Nagasaki, thereby saving hundreds of thousands of civilian's lives?

If Harris would answer "yes" to this question then we can take the discussion further from there, but I'm sure readers will see that this sort of reasoning opens up a can of worms that I doubt Harris and other torture advocates intended.

Put simply - if all your concern in the nuclear terrorism scenario is for the protection of innocents, and your justification for torture proceeds on that basis, you should also acknowledge that those suffering under US foreign policy could somehow be justified in capturing and torturing US officials in order to prevent the destruction of their cities.

Thursday, 21 February 2013

Kate Middleton, Hilary Mantel and Princess Diana: The Tragic Lives of Female Royalty

"Completely misguided and completely wrong" was what Prime Minister David Cameron said about it all - a phrase which, ironically enough, seems more at home as a critique of the manufactroversy itself than it does Hilary Mantel's essay in the London Review of Books. Of course, both the PM and his would-be successor Ed Milliband's remarks were profoundly stupid if one reads them as addressed towards the substance of the piece itself, which I would guess neither of them have read. Stupid, yes, but politically tonedeaf they were not; Ed and Dave's responses weren't meant to serve as a critique of Mantel's brilliant deconstruction of the public attitudes towards monarchy, but were instead directed towards misled and gullible tabloid readers who believed a snooty, prize-winning intellectual type had just publicly humiliated their beautiful, perfect princess. They needed to know that the politicians were on their side, dammit, and what's a political heavyweight like Dave or Ed meant to do when faced with the bloodlust, the off-with-her-head approach to debate of the tabloid media? Why, they criticise - or, to use the tabloid press' favoured verb, 'slam' the piece itself.

The tabloid media has a post-modern relationship to truth, and when faced with a dichotomy between stretching reality in order to sell papers or a rigorous approach to accuracy, will often prefer the quick sell. Anybody who actually read Mantel's piece will, of course, have found it brimming with satire, sarcasm and, most of all, empathy towards not just Kate, who features as only a minor character in Mantel's examination, but the monarchy as an institution and crucially the human beings confined within its inescapable prison of constant veneer; its requirement of endlessly chipper, dignified, exorbitant celebrity. 

Ironically, but perhaps not unexpectedly, it would fall upon the Daily Mail itself to feature the first genuinely personal criticism of Kate in publishing an 'I agree with Hillary Mantel' piece by Julie Burchill, which had nothing to do with the scope or content of Mantel's original essay, but had everything to do with what the tabloids had allowed - nay - forced it to become. When Mantel observed that Kate had become 'a jointed doll on which certain rags are hung...a shop-window mannequin, with no personality of her own, entirely defined by what she wore', it was clear that the blame lay with us, the public, for holding such perceptions - why do we allow ourselves to treat people, royal or not, this way? And what about the institution of monarchy so allows us to dehumanise not just The Royals as celebrities, but ourselves as spectators to that celebrity? Julie Burchill in the Mail, meanwhile, lays the blame not with the public or the press for the dehumanised perception of royalty, but with Kate herself ('she needs to take a leaf out of her own mother-in-law Diana's book') and criticises her career trajectory before she became princess - '[her] dabbling in the family business, Party Pieces, makes us feel that she lacks backbone.'

All this hearkening back to The Time of Diana in which princesses were publicly venerated for their inhuman levels of simplistic humanity is nothing but amnesia. Whilst I was only nine years old when Princess Diana died, I remember the dishonesty of the public and press' about-face not being lost on me. My parents would occasionally read tabloid papers and they were, pre-death of Diana, replete with judgmental stories about her relationship with Dodi Fayed and more often than not treated her humanitarian efforts with patronising scorn rather than humanistic appreciation. In September 1996, less than one year before her death, the Mail on Sunday published a piece by Jessica Davies entitled 'Cunning Queen of Broken Hearts', which begins:
'The woman's a genius! She may be, in her own estimation, 'as thick as a plank', but Princess Diana has an unerring eye for bandwagons...
What a masterstroke it was to time her visit to Washington last week to coincide with the release of First Wives Club - a film about abandoned wives which has taken America by storm.
Just as the misery of dumped wives, and their triumph through revenge, became the talking point among film-goers, who should waft over and present herself as a suitable icon? Why, the brilliant, beautiful Diana - the ultimate Queen of Broken Hearts. For the first time in public she removed her wedding ring. A coincidence? I think not. 
The Daily Mirror, meanwhile, published a piece in June 1997 (two months before Princess Di's death) headlined 'Why Doesn't Di Have a Real Gal Pal?; Men Fall at Her Feet but No Woman Stays Close for Long' that recounts the apparently tempremental, hostile personality of a royal diva unable to make friends for herself:
The fact is that Princess [sic] has a way of behaving and saying things that tends to drive people away.
The large turnover in her staff is evidence enough of that. They just don't stay. Since she married in 1981, I reckon she's got through nearly 100...
For the fact is that to be a friend of Diana is hugely demanding.
You have to be prepared to take calls even at 3am to assure her she is wonderful.
You have to tell her constantly that she looks good and that the papers have been unkind to her. [Enduring England: I wonder why she would think that?]
And, when it is glaringly obvious she has behaved badly or selfishly, you have to tell her that she was quite justified in her actions.
Girlfriends are prepared to do all this up to a point, but they admit that it can become just too exhausting.
And so they walk away.
The brilliance of Mantel's piece was to examine the way royal women are (in Diana's case, literally) sacrificed onto the pyre of tabloid gossip and speculation in a way which has nothing to do with the reality of royal lives, but with the inhuman constraints and demands of monarchical duty. Is it too much to wonder if the strained quest to find perfection in the public spectacle of the Duchess of Cambridge is at least a little bit a desire on the part of the public, ventriloquised by the media, to atone for the oftentimes ghastly treatment of Diana at the hands of the scathing op-ed? The public displays of grief upon Diana's death were surely at least partially an effort at whitewashing history. Now, in Kate, we have a chance to do it all again. Don't mess things up this time, guys.

And yet still this forced love, this required worship, is no less dehumanising and no less degrading than the popular pre-death portrayal of Diana as a histrionic, maneating glory-seeker bouncing from one failed relationship to the next, all the while trying and failing to promote herself as someone who cares about anything but Princess Di. Neither work on the basis of reality, but are stories about stories - in Kate, the fairy-tale princess plucked from a life of common humility (don't laugh) into the dazzling life of royalty - the plot of a particularly unimaginative film, perhaps. In Diana, we had all this, but her narrative inevitably shifted from fairy-tale princess to Disney villain; the self-serving succubus, disruptor of public matrimonial harmony.

The only way to deal with this grotesque subversion of ordinary human decency is to do away with it entirely and such is why any humanistic approach to human compassion warrants - no - requires republicanism. It is only a matter of time, after all, until the public and the media's honeymoon with Kate Middleton ends, and the fickle, cynical whims of capitalist (should that be 'savvy') media transforms this apparently flawless individual into an object of derision, jealousy and scorn. What is the social function of an institution that brings out the worst in us and places at the center of our irrational hatreds individuals who are placed there not out of any desire, or lust for the trappings of 'celebrity experience' but by mere birthright? And woe betide those women, indeed, who happen to catch the eye of the male royals - for they will be loved, hated, publicly defended and denounced in equal measure. With the reaction to Mantel, it seems that anyone who points this out is guilty of an unpardonable sin.

Tuesday, 19 February 2013

Pope Benedict Behind Bars

Is unlikely, for one reason:
[Benedict's] continued presence in the Vatican is necessary, otherwise he might be defenseless. He wouldn't have his immunity, his prerogatives, his security, if he is anywhere else...
(If he lived anywhere else) then we might have those crazies who are filing lawsuits, or some magistrate might arrest him like other (former) heads of state have been for alleged acts while he was head of state 
By 'those crazies' I guess he means those people who prosecuted guys like General Pinochet. Isn't it funny that, yet again, those who have the most to lose from the exercise of universal jurisdiction are its fiercest opponents?

And so goes any possibility, barring a mostly symbolic in absentia universal jurisdiction trial, of seeing some sort of child-rape command responsibility being exercised by national courts.

And The Papers Are At It, Too: Fisking the Ross Clark Express Piece

I didn't intend my original comments on Theresa May's legal illiteracy to become a mini-series, but needs must and the problem extends deeper than simply the Home Secretary's lack of understanding. The Express has published an op-ed by Ross Clark that reeks of inaccuracy. This is really an endemic problem, spreading further than one article - as the Leveson report pointed out, most newspapers lack dedicated legal correspondents and a great deal of writers and columnists lack legal experience. Sure enough, Ross Clark's profile is notable for the fact that he doesn't appear to be a legal correspondent per se or have any notable experience writing legal commentary - he's a right-wing columnist who publishes propaganda pieces. Now, I'm not of such a technocratic mindset that I think only lawyers should be able to comment on legal matters, but it is important that newspaper editors require of their writers a level of comprehension and understanding that extends further than merely reiterating Tory propaganda. From Mr. Clark's article, it would appear that his only reading of the case is having read the Home Secretary's comments.

Clark begins his piece with sweeping, almost apocalyptic invocations of the principles of democracy versus the realities of despotism, he states that parliamentary sovereignty and democratic consent 'ensures our freedom from despotism: a political system in which power rests in the hands of elected representatives who live in constant fear of losing their jobs.' Fair enough, but the cases don't affect the doctrine of parliamentary sovereignty - they are an acknowledgment that guidelines to the judiciary on the implementation of human rights law passed by The Commons, rather than the whole of Parliament, don't occupy the same legal status as legislation. To have decided otherwise would be the really radical decision. Then Ross Clark goes on to say:
'I am rather less convinced by human rights lawyers who try to claim that it is in their hands that our freedom rests.'
This is just blatant populism, and relies on the hope that you hate lawyers and people in suits more than you hate elected politicians. Suffice to say, nobody is claiming that human rights lawyers are the guardians to the keys of freedom, but that the judiciary is under an obligation to apply the law, and guidance papers are not of the same legal standing as Acts of Parliament.
On the contrary, when I see lawyers making up the law through a perverse interpretation of a principle in the European Convention on Human Rights I begin to feel a little of the same sense of powerlessness which ruled the lives of people who lived under Eastern European autocracies.
Here's where the article delves into mindless stupidity. Lawyers do not 'make up the law', but rather the judiciary is applying laws handed down by parliament itself in deportation cases, to which Article 8 claims may apply in exceptional circumstances. The comparison with Communist states is ludicrous, since the powerlessness of communist autocracies came precisely from a lack of legal oversight and human rights protection for individuals. It was a lack of lawyers, rather than an abundance of them, which is in part reasponsible for totalitarian excess.
The guidance needed issuing because the law had become a farce. Since the Human Rights Act came into effect more than 100 foreign criminals have evaded being returned to their homeland on the grounds that it would harm their family life. 
Meaning that roughly 10 cases per year are decided in favour of a defendant alleging that his/her Article 8 rights would be violated with little to no public interest being served by the deportation. There are no comparisons for us to deduce whether or not this is the norm. Placing the claim within its relevant context would require comparing it not just with the amount of times Article 8 claims fail, but in deportation cases involving criminals which don't invoke Article 8 at all. Yet Ross Clark goes to no effort to contextualise his claims, and hopes you won't notice the shoddy reporting. Unlike Theresa May, however, Ross Clark does provide some (dubious) examples:
They include Aso Mohammed Ibrahim, a failed asylumseeker who mowed down 12-year-old Amy Houston in Blackburn in 2003. In spite of the fact that he had no right to be in the country anyway – and that he had other convictions for harrassment and possessing drugs – he was allowed to stay in Britain by virtue of having fathered two children after serving his jail sentence.
This is at least a real judgment, but the lack of any links on the piece to which readers can fact-check the piece for themselves should give some indication of the general level of rigor and intellectual discipline of the summary. If readers are interested, they can look here for the facts and judgment, as well as a summary of the immigration judge's assessment.  Contrary to what the tone of Clark's summary of the judgment implies, merely having two children does not automatically establish Article 8 rights which override deportation proceedings. A quick reading of the actual judgment itself finds that the immigration judge was not just considering the Article 8 rights of the Aso Mohammed Ibrahim, but more crucially, his children:
I am satisfied that the relationship is of such significance that can genuinely be characterised as family life and that the best interests of the children is such that the Appellant should not be removed from the UK. Were it not for the children my view with regard to the matter may be [sic] different. However I find that the disruption and interference in the family lives of the children and therefore of the Appellant and [ ] would be of such significance that it is not proportionally justified to remove the Appellant from the UK.
The Upper Tribunal further noted that had Aso Mohammed Ibrahim been subject to deportation proceedings at the time of the offense, his case would have likely been unsuccessful. In the intervening seven years since he had committed the offense, however, he had fathered two children, whose best interests, said the immigration judge, would not be served by having their father sent back to Iraq. Had the deportation proceedings been started at the time of the offense, they would have likely succeeded. So really, the anger is to be directed at the government for taking so long to issue deportation proceedings, rather than at the Human Rights Act and the judiciary for allowing Ibrahim's claim to succeed. The second example Ross Clark uses is of Mr. Rohan Winfield, but since the case is unreported, I strongly doubt that Clark has actually read it. I would hope to see legal commentators in the popular press refrain from commenting on things before they've actually, you know, read them. The only reference I can find to the case is in this Telegraph piece, which goes into no detail whatsoever with regards to the judge's reasoning or the merits of the case. Therefore Ross Clark's commentary on it is, quite simply, untrustworthy.
We now have an immigration policy which turns away entrepreneurs and PhD students yet puts a large “welcome” mat out to overseas criminals. 
This is just a false dichotomy. If we're talking about the immigration policy approach to PhD students and entrepreneurs, that's another matter, but Article 8 rights of the families of criminals don't have any bearing at all on whether or not skilled workers are allowed into the country. It's simply lazy, sloppy thinking to think of them as somehow legally connected, and this is in no way a relevant or insightful criticism of UK immigration policy. Article 8 is not a 'welcome mat' and is not successful in all cases - criminals are still deported for committing crimes, but if the criminal's family would have their own rights violated (being, as they are, you know, innocent people), then it is a relevant consideration to ask what the actual objectives of deportation are, and do they outweigh the distress to the children of never being able to see their father again?
All article 8 of the Human Rights Act has achieved is to provoke a baby boom among criminals who know that if they can manage to father a child before deportation proceedings are completed they have a good chance of being allowed to stay in Britain.
Extraordinary claims require extraordinary evidence. Yet it seems that amongst the editors of The Express, all that will suffice is for a writer to pluck bogus claims from his arse and hope nobody notices he's making shit up. This is just a completely ludicrous, unsubstantiated, made-up piece of propagandistic drivel. If only ten cases regarding Article 8 are decided every year in favour of the defendant, not all of them will involve children. So less than 10 cases each year hardly constitutes a 'boom' amongst criminals. There is no evidence for this claim whatsoever and it shouldn't have gotten past an editor, if the editor was interested in facts rather than political spin.
Yet according to Lord Woolf the most outrageous aspect is not that violent criminals are allowed to escape deportation but that Theresa May should dare to challenge the judges who have made the rulings.
 Yesterday he claimed that her remarks “undermined the rule of law” on the grounds that a minister should not dare question the rulings of judges.
Translation: "I have not read the relevant cases, and I've only read summaries of the controversy, so I presume Lord Woolf was angry that ministers criticised judges." I'm guessing that Ross Clark used the "undermined the rule of law" quote because that's the only part of Lord Woolf's statement that isn't behind a Times paywall. Here's what he actually said:
'It behoves ministers to be circumspect in their remarks, particularly the Home Secretary, who has responsibilities for upholding the rule of law. What is said in debate in Parliament does not change the law. 
If the Home Secretary is not pleased about a decision and thinks that it is wrong or not in accordance with the law, then she has the right to go to the Court of Appeal.
If the law needs changing, she can go to Parliament...'
In other words, Lord Woolf was expressing concern at the Home Secretary's lack of understanding of constitutional process, in keeping with the criticisms expressed on this blog and elsewhere, than the fact that she dared to criticise judges.
Even if you do believe that the right of convicted criminals to choose to live in Britain should take precedence over the rights of the rest of us – which I suspect is rather a minority viewpoint – you surely must recognise the primacy of Parliament, which last July voted to approve the new guidelines.
Except that nobody has disagreed with parliamentary sovereignty, they are instead taking issue with the claim that a debate and subsequent vote in The Commons should override the statutory law, as well as the international and domestic case law.
Yet one judge quoted by May justified his ruling to allow a foreign criminal to stay in Britain with the words that the debate in Parliament amounted only to “weak scrutiny”. 
It's always a shame when columnists take two words from a judgment as evidence to back up their claims - the phrase 'weak scrutiny' was used to contrast the weight accorded to guidelines voted for by the House of Commons in comparison to primary legislation and case-law.
A democracy functions on the principle that elected politicians make the law and the courts enforce it. When judges start trying to make the law as well as enforce it we are sliding towards judicial dictatorship.
Reading this, you might be forgiven for forgetting that we are talking about an Act of Parliament, here! Article 8 was passed by Parliament in 1998 one year after a landslide victory for New Labour in 1997. It applies in cases where people have a familial interest and in which the rights not just of the criminal but of his/her family are potentially violated. If judges made a distinction between the families which are worth consideration, such as those of criminals being deemed worthy of no right to legal redress absent even an Act of Parliament saying so, then that is the legal regime which embodies more the characteristics of a judicial dictatorship.

The row over foreign criminals is part of a wider trend towards laws being made in the courts rather than in Parliament. 
Increasingly administrative decisions are being fought out in judicial reviews where a court decides whether ministers have followed correct, lawful procedures. 
Ministers, of course, are as bound to obey the law as anyone else but the constant barrage of challenges brought by well-funded vested interests is beginning to paralyse the business of government.
First we have false dichotomies and now false equivalence! This is not the time or the place to get into an in-depth discussion about judicial review, others have done that far better than I could. It's very difficult to get at what Ross Clark is arguing - is he saying that there are particular judicial review cases which were decided incorrectly, if so, which ones? Either you think that the government has a duty to follow the law and have this enforced through challenges from its citizens, or you think this whole judicial review thing is a load of nonsense and should be gotten rid of. No amount of "I'm not saying, I'm just saying" caveats will cover up columnists thinking sloppily on these matters. Although, 'the business of government' is a telling phrase, isn't it?
Few people would disagree with the original articles of the European Convention on Human Rights, which the Human Rights Act incorporated into British law, nor question that they be used to prosecute fallen dictators and war criminals.
 But the convention has grown and now contains protocols on discrimination and the like so vaguely written that they are open to wide interpretation.
They are meant to be vaguely-written, to accord a wide margin of appreciation to states in their implementation, so that the law isn't made at the international level, but reflects a process of interpretation, debate, disagreement and consensus.

I've run out of steam, but this piece wasn't just about attacking an idiotic column by an obvious propagandist in a right-wing newspaper. This demonstrates the general lack of regard much of the op-ed based tabloid media accords to legal matters and in particular issues surrounding human rights. For whatever reason, the right-wing have decided that they don't much like the human rights act, and in the absence of genuinely absurd cases (which would warrant outrage) have proceeded to make things up and publish ill-informed garbage like Ross Clark's piece. If claims are to be made by legal reporters, they should be substantiated and fact-checked, not just rushed through because they serve a political purpose. 

Theresa May: Clearly Not A Lawyer

The always-excellent UK Human Rights Blog has rightfully taken Theresa May to task for her idiotic comments in the Mail on Sunday with regards to the judiciary:
But however wrong-headed Theresa May’s critique might be, it forms part of a much wider public discourse about the nature and acceptability of human rights in contemporary Britain. This is so because May’s argument, shorn of its baseless analysis of the specific matter that she has in her sights, reduces to the bald propositions that the UK Parliament, not the judiciary, should and does have the ultimate say over matters pertaining to human rights. The former claim – a normative one – is contestable. The latter claim – a factual one – is demonstrably false.
What's more, any primary legislation enacted in order to give more weight to Theresa May's pandering to right-wing tabloid papers would still need to be read in a way which is compatible with Article 8 of the Human Rights Act. Any legislation, further still, would be subject to a challenge at the European Court of Human Rights - so the only way for the Home Secretary to get what she wants - favourable judgments in all cases without interference from human rights legislation, is to repeal the Human Rights Act and withdraw from the European Convention on Human Rights. This, by the way, is now a mainstream policy option amongst the right-wing in the UK.

So there you have it: the profoundly illiberal bleating of a legally illiterate Home Secretary desiring to remove international checks and balances on executive power, all because she lost a couple of cases and doesn't seem to understand the constitutional process. Anyone else think appointing Home Secretaries with no legal experience might be something of a bad move?

Sunday, 17 February 2013

Dumb and Dumber: Iain Duncan Smith and Theresa May

Pictured: Article's subjects.
In what seems to be an ongoing saga of Conservative politicians saying stupid things, we have a double whammy this week from the Tory front-bench. First, from the-man-who-wouldn't-be-Prime-Minister; Work and Pensions Secretary Iain Duncan Smith, who thinks that those who expect sufficient payment for work are snobs who think they're too good for manual labour. Secondly, we have what can now be reliably called a characteristically ignorant comment from Home Secretary Theresa May, who thinks can get away with pretending judges are incorrectly implementing Article 8 of the European Convention on Human Rights. The reason I've grouped these two outbursts together is because they both rely on a hatred of 'elites' (Iain Duncan Smith actually used the term 'smart people') who arrogantly consider their fancy-pants university degrees to be more important than the national interest. Now, both these points are so obviously political posturing rather than honest objection, but it is a shame that the modern Conservative party is relying on populist attacks on hard-working people or, in the case of Theresa May, an entire branch of the government. Of course, both these shameless panderers are wrong on all their points, so let's examine them in turn.

Iain Duncan Smith: Norman Tebbit Redux

Let's get one thing out of the way first: comparative studies have shown that workfare schemes do not work at reducing unemployment levels. They are a throwback to the Nixon Administration, and then as now were shoved through more for the reason that they were an easy sell to the public, rather than a proven, effective means to alleviate the poverty trap. A far more effective method to reduce dependency and unemployment would be, say, wage-subsidised job schemes, which manage to achieve higher levels of sustained employment without all that, you know, exploitation stuff. Perceptive readers will also notice that both those reports linked to above come from the Department for Work and Pensions, the minister for which is...Iain Duncan Smith, who is apparently failing to listen to the advice of his own department, presumably because Workfare is seen as an easy sell to right-wing voters, as it was with Nixon and his Republican base.

The problem with Workfare schemes is that they provide companies like Poundland with virtually no incentive to keep people on and cause jobseekers to waste time doing work which fails to develop their skills. This isn't about work being 'beneath' people, it's about people's opportunity and potential being realised; there is simply no need for a university graduate to work in Argos as a remedy for welfare dependency. Graduates do not have significant labour market disadvantages and the time and money spent implementing an all-round useless Workfare program could be better spent in subsidising work experience schemes that provide training and assistance with job-searching, and would provide employers with incentives to keep people on. But why invest in people's futures when you can use a court defeat of your policy to have a jab at 'smart people'?

Underlying IDS's comments is an indirect assault on university graduates - the implication being that our economic woes are in part caused by 'these people' who think they're too good to enter the labour market at the bottom rung. I'm guessing that IDS isn't stupid enough to actually believe this, and he surely knows that the problem with workfare schemes isn't just that they place people in jobs ill-suited to their skills, but that they refuse to pay them the minimum wage for doing so. Sure, that might deter some people from claiming benefits in the first place when jobseekers think that a better use of their time might be spent writing cover letters and sending out CVs. This, in turn, will allow the government to boast that it's reduced the number of people on benefits and call workfare a success, without fixing the structural problems that have caused such high unemployment, particularly amongst skilled workers and university graduates, in the first place.

Article 8 of the ECHR: Theresa May is either lying or stupid

As a human rights lawyer, I despair every time I see home secretaries use the human rights act as some kind of scapegoat for their own incompetence, or when it's used as a bogeyman to drum up popular support for some draconian policy. Teresa May has eagerly adopted the Daily Mail/Daily Telegraph tactic of simply making up bullshit about human rights cases in order to push through a legislative agenda that is based, one suspects, more on giving untrammeled power to the executive branch than on a genuine constitutional concern about judicial overreach. May's issue is with a very small amount of immigration cases in which claimants have relied on the right to a private and family life in Article 8 of the European Convention on Human Rights to prevent a deportation. She claims that the fact that a small number of cases have concluded that an individual's right to private and family life outweigh the home secretary's desire for deportation constitutes unwarranted judicial activism. Basically, she's pissed off because she hasn't won every case that's been decided on this matter, and because the courts have rightly concluded that parliamentary guidance papers hold less legal weight than primary legislation and decades of domestic and international case law.

There are no third options: either Theresa May is ignorant of not just the law, but of basic constitutional practise, or she is aware of the means by which the UK legal system operates and is instead lying about it to make a political point. Baroness Kennedy, whose response is simply wonderful, is correct - if Theresa May is asserting that judges actively consider Article 8 an absolute right, she should provide cases where they've done this. The truth of the matter is that cases involving a balancing between Article 8 and deportation are relatively uncommon, and Article 8 is always treated as a qualified right that succeeds in exceptional circumstances. That the examples upon which the Home Secretary bases her attacks on Article 8 have often been shown to be flat-out untrue isn't even demonstrative of scraping the bottom of the barrel - it shows one is scraping the bottom of the barrel for stuff that one can lie about to support one's own legally illiterate political agenda.

Theresa May's logic must therefore be that the simple act of placing down new immigration rules should take precedence over case-law and primary legislation. That's the only way to understand her recent critique of the judiciary, since the judiciary itself recognises the weight to be accorded to the immigration rules, but acknowledges that since they are not primary legislation, they don't occupy the same privileged standpoint as Acts of Parliament. May claims that since the rules were debated by 'Parliament', they demonstrate clear intent, but it was only because it was merely The Commons rather than both Houses of Parliament that had implemented the new immigration rules that they were considered a weak form of parliamentary scrutiny. It's impossible to read May's critique without coming to the conclusion that Theresa May knows astonishingly little about the UK constitutional process and the separation of powers.

Friday, 15 February 2013

The Conservative Party: Still Awful Homophobes

Pictured: The Downfall of Western Civilisation.
This might seem like something of a moot point, since the same-sex marriage bill passed on second reading with a majority of 225 MPs, but what's bugged me about the right-wing furor around the same-sex marriage bill is the genuine lack of any arguments that aren't prima facie dumb. Now most people know me as something of a left-winger and so I am naturally biased against right-wing arguments that to me seem nothing more than a recitation of mythological dogma about, say, free-markets, or a reflexive, rather than considered, distrust of 'big government' (whatever that means). Much of this, however, has more to do with the general intellectual climate of the right-wing these days, made up as it is by chavvy disabled-hating public school types in the UK. In the US, meanwhile, well...there's an episode of 30 Rock where Liz Lemon's brother, Mitch, is introduced as having had a skiing accident which makes him mentally 'stuck' in the 80s. That's basically the GOP in 2013. It's a shame, really, because conservatism has a rich intellectual history and these charlatans are doing an extreme disservice to it. Conservatism at its best is a consideration for reason and evidence, an appreciation for the wider effect of policies billed as compassionate and a respect for intellectual rigor. Nowadays, it's more often characterised by a bullying contempt for the vulnerable.

Enter the same-sex marriage 'debate' which is only really a debate in the same way that a newborn child's incessant crying constitutes a master's thesis. Let me be blunt here - there are no good arguments against same-sex marriage. None. Nada. Zilch. Generally speaking, when there's a hot-button issue being discussed by idiotic self-publicists on forums like, say, Question Time, with a little digging one can find some sophisticated arguments in the academic literature or in high-brow publications like the London Review of Books, or something that make you glad to know that the other side aren't all gibbering idiots. Not so with gay marriage. In this clip, Janice Atkinson-Small a (surprise, surprise!) Daily Mail columnist makes the argument against same-sex marriage from an apparently libertarian standpoint that basically the government shouldn't be involved in marriage regulation at all, so she's against any government intervention in marriage. Call me a cynic, but I have a sneaking little suspicion that this is *ahem* dishonest bullshit - since as far as I can tell, Mrs. Atkinson-Small has only felt the need to raise her objection to state involvement in marriage when it concerns, you know, those gay people they have now. Perhaps a reader can link me to an article in which Mrs. Atkinson-Small passionately argues for the overturn of the Marriage Act 1994? I eagerly await the response.

Okay, so a Daily Mail columnist is stupid, that's nothing new or interesting. What is interesting, though, is that Janice Atkinson-Small's position is the single most intellectually sophisticated argument against gay marriage out there. And yet, it's a kind of moral and political means of squaring the circle to argue that libertarianism demands restricting the rights of homosexuals because the state should not be involved in marriage rights. Why only marriage rights? Why not keep the state out of enforcement of consumer rights, or contracts? They are after all, like marriage, an agreement between two consenting adults and should thus be kept free of government involvement. The logical conclusion of the libertarian opposition to same-sex marriage is, of course, that any legal recognition of human rights constitutes 'state involvement' and should be rigorously opposed. One senses these people need to go back and read their Hobbes.

In Parliament, meanwhile, whilst I saw some elements of the objective press (bless 'em) describe the marriage debate as consisting of 'emotive arguments from both sides', or something, those of us who make no pretenses towards objectivity saw it instead as an opportunity for right-wing MPs to show just what truly horrible idiots they actually are. Here's David Burrowes MP, one of the main opponents of the Bill, on his reasons for objection:
'...over the centuries Society and Church have had a united view of the essential purpose of marriage, to provide a stable institution for the care of children.'
This is an argument that doesn't require a great deal of effort to refute. In fact, Mr. Burrowes does it himself in the preceding sentence:
'Of course same sex couples raise children in loving homes and not all marriages involve children.'
Got that? Not all marriages involve children and gay people can be perfectly good parents. But because gay people can't have children and Mr. Burrowes assumes they'll be bad parents, they shouldn't be allowed to marry - it's simple. One wonders if some of these MPs actually proof-read their statements before. And here's Teresa Coffey MP, who voted against the bill:
I’ve probably had about 10 from the constituents in favour and about 350 against. So I can say candidly on people who have contacted me I’ll certainly be representing their views tonight.
Her hands are tied, guvna! It's certainly a bold move to simply blame your constitutents for your voting to deny people equal treatment before the law. Majority tyranny, indeed.

But undoubtedly the worst quote of the same-sex marriage debate came from Stewart Jackson MP:
'Rosa Parks did not refuse to give up her seat on that bus for me to go to the back of the bus as a traditional Christian.'
Yeah, he actually compared himself to Rosa Parks in order to justify his bigotry against homosexuals. This isn't just a remarkably stupid and politically tone-deaf statement that lowers the intellectual level of parliamentary debate (though it is that), it's also emblematic of the kind of conception of 'rights' that some of the anti-same-sex-marriage campaigners have. The idea being that the state, the church, MPs, whatever, also have the right to not have gay people getting married in their midst. It's this kind of thinking which in turn pervades the modern Conservative party - that the government has a 'right' to demand certain behaviour from its citizens, which supersede the individual's rights to, for instance, equal treatment, religious freedom, or even payment for work.

There were some equally stupid arguments put forth by the Conservative dinosaurs in wake of their inevitable extinction. Sir Roger Gale argued that same-sex marriage was an 'Orwellian' redefinition which logically requires legal recognition of incest, although since there is no such thing as an 'incest lobby' and the number of loving, non-exploitative incestual relationships numbers zero, it's an irrelevant point. Nadine Dorries, intellectual powerhouse as she is, objected to the bill because it made no requirement of faithfulness and 'in fact, it does the opposite' (the opposite would actually be a requirement of adultery). I'm guessing that Mad Nad doesn't actually believe this and would still be opposed to the bill if Parliament jumped through her hoops and made a faithfulness requirement, because she doesn't care about faithfulness - she cares about gay people getting married.

Outside of our Parliament, stuffed as it is by at least 175 backwards homophobes (who have some gay friends, so they're not really homophobes, honest), some columnists are arguing that this bill is unnecessary because gay people don't actually want to get married, except for Sir Elton John and a few other 'national treasures' (seriously). This argument has to be read to believed:

Nothing in Britain's gay marriage debate adds up. For example, we're told the passing of the gay marriage bill is an historic victory for the brave gay activists who despite being mocked as perverts and poofs took part in London's first gay pride parades in the 1970s. 
Yet this fantastically overlooks the fact that those marchers denounced marriage and the family as "patriarchal prisons" that "enslave women, gays and children". 
For all the harebrained attempts to doll up the passing of the marriage bill as the endpoint to 50 years of gay agitation, the truth is early gay radicals campaigned against marriage, not for it. 
Marriage is a "rotten, oppressive institution", said the 1970 Gay Manifesto. Homosexuals are "in revolt against the nuclear family structure", said the influential Gay is Good tract of 1972.
That's right - literally all gay people in the 1970s were against equal marriage, and all activism conducted between 1972 and 2013 is irrelevant, because the 1972 Gay is Good tract was 'infuential.' Andrew Sullivan's 1989 essay doesn't matter, because some gay activists 40 years ago were against equal marriage and didn't want to get married, and it's only because gay people are stupid and easily led that they're overwhelmingly in favour of equal marriage rights now, when the truth is that they don't actually want what they've been saying for the past few decades that they really, really want. We should be listening to right-wing columnists, rather than gay people themselves, to tell us what gay people want, because they themselves can't be trusted. These are the best arguments they have, folks.

Perceptive readers will notice that I haven't given any consideration to religious arguments. The simple reason being that religious arguments are completely irrelevant. Religion is a Rorschach Test and every political movement, be it racist, homophobic, Marxist, anarchist, whatever has a branch that relies on scripture to back up its assertions that if Jesus were around today, he'd definitely be a member of the NRA . Case in point - here's a biblical argument for gay marriage.

So whilst it's certainly good news that the bill passed with an overwhelming majority, was advocated by a Conservative Prime Minister and some of the most powerful arguments in favour came from Conservative MPs, it is still nonetheless the case that the Conservative party is still in majority comprised of backwards-thinking homophobes who opposed this bill on intellectually indefensible grounds. The hardcore right-wing of the Tory Party is not happy with this - as evidenced by this Sun Poll, which is revealing in its sneering disregard for the rights of minorities. Only 5% of those polled by The Sun support equal treatment for gay people, therefore the government shouldn't support it at all! I would really like to give Cameron the benefit of the doubt and think that he pushed this through out of conviction rather than politics, but he's always come across as someone who acts more on political expediency rather than outright principle. That's not a huge indictment - he is a politician after all. It is, however, ironic that a bill that was pushed through presumably in part to shed the Conservative party's image of dinosaur-minded bigots ended up exposing the majority of them for being just that.