The Scribe

4/27/065: Fresh Air: "Who Controls the Internet?": Interview with Goldsmith and Wu

4/27/065: Fresh Air:  "Who Controls the Internet?": Interview with Jack Goldsmith and Tim Wu

Host:  Terry Gross

Terry Gross:  When the internet started to really catch on in the '90's, it was widely seen as a form of communication that transcended geographical boundaries, a force for freedom that could not be controlled by government.  But as countries like China have demonstrated, governments are figuring out how to censor information on the Net.  According to the new book, "Who Controls the Internet?," the net is splitting apart and becoming bordered.  Governments are imposing national laws on the net within their borders.  "Who Controls the Internet?" explores the consequences and virtues of an internet regulated by national laws.  My guests are the authors, Jack Goldsmith and Tim Wu.  Goldsmith is a law professor at Harvard and headed the Justice Department's Office of Legal Counsel in 2003-2004.  Wu is a law professor at Columbia, writes for the online magazine, Slate, and previously worked in the internet telecommunications industry.

Gross:  Let's look at a case which you consider to be a turning point in government control of the internet.  This was a few years ago when Yahoo was selling Nazi materials on an auction site.  That's illegal in France.  France wanted those pages blocked.  What was the case that the French government made?

Goldsmith:  The auction page was actually on a computer in California.  The French government argued that its availability in France violated French law just the same as though the goods were there or if they appeared in a magazine that was actually there.  It argued that when Yahoo was doing business in France, it had to comply with French law, just as anyone would have to in France.

Gross:  What was the law that the French government said Yahoo was breaking?

Goldsmith:  They have a law, simply a law against the offering for sale of Nazi goods, no matter what the medium. 

Gross:  And this is related to laws against hate speech and crimes.

Goldsmith: Sure.  It grows out of France's experience in World War II with the Holocaust and German occupation and the like.  Europe is much more sensitive to hate speech and to Nazi speech than we are in the US.  They have a different conception of free speech.  They regulate these activities much more heavily than the US does.

Gross:  Okay.  So you describe France's case.  What was Yahoo's case?

Goldsmith:  Yahoo argued that it was inappropriate or unfair for France to tell Yahoo what to do in the US because remember, the web page was actually located on a computer in the US.  Yahoo argued that it couldn't stop the goods -- the web page -- from going into France, and that if it was forced to shut down its website in California, that in effect France would be regulating these Nazi goods for the whole world as Yahoo would have to shut them down to everyone.

Gross:  I think Yahoo also argued that it would be virtually impossible to honor the laws of many different countries while running its websites.

Goldsmith: Yes, they argued first of all that they couldn't keep the web page out of France and they couldn't comply with 190 different national laws all around the world because, they argued, the internet is not bordered. We can't keep information from going into different countries.  Therefore the only choice Yahoo had, it argued, was to allow the web page to be seen everywhere or to shut it down and allow it to be seen nowhere.

Gross:  So what was the outcome? 

Goldsmith:  The French judge didn't accept that argument.  He hired some internet experts who argued -- and remember, this was five or six years ago -- that Yahoo could in fact screen out information to a reasonable degree.  In fact Yahoo was filtering geographically in its advertising side, so whenever you typed in yahoo.com in France, you'd actually receive a French advertisement rather than an English advertisement.  The judge argued that you could filter out to some degree and ordered it to take all reasonable steps to keep the web pages out of France.  Yahoo eventually complied. 

Gross:  So what precedent did this set, internationally?

Wu:  You know I think what was so interesting about the case is that it pitted the ideals of the internet, the freedom of being borderless, of being uncontrollable, and being a medium anyone could do anything with against a set of very hard facts:  Europe has had a terrible history with antisemitism, people were selling Nazi-glorifying goods in Europe through the internet.  And so suddenly the case for absolute internet freedom didn't seem quite as strong anymore.  Faced with a country that legitimately had historical reasons to want to fight antisemitism, I think this case had a strong normative effect on what people thought needed to be some of the limits of freedom.  The second thing that this case showed is that, when push came to shove, entities like Yahoo which had declared themselves unregulable, when threatened with massive fines and potential detainment, suddenly found they had reasons to follow the law.  That is to say, Yahoo stood up and said, We're not going to listen to some judgment from some other country just because they say so.  But then when threatened with potential detainment and €10,000 in fines a day, they suddenly backed down.  This was a shock to people.  People had thought the internet was truly unregulable.  They never dreamed that a court in France, with a single French judge, could bring an internet giant like Yahoo, with a stock valued at nearly $500, to its knees. But that's exactly what happened.  And Yahoo coincided partially with the collapse of the bubble.  There was this era where everything was going to be different, money, finance, government, and so on, and this is when the real world started to catch up -- and that was a turning point in the history of the internet.

Gross: So you've been describing how the French government got Yahoo to take Nazi materials off its internet auction site.  Then we have a case of China asserting its wish to censor.  And to censor words like "democracy" and "freedom."  So this isn't just about hate speech, this is just clear-out censorship.  Yahoo was involved in this too.  Tell us what the story is.

Wu:  The funny thing about Yahoo -- Yahoo is a pivotal figure in these early days of the law and the internet.  Yahoo on the one hand is standing up to France, claiming principles of freedom of speech.  On the other hand it's in China slowly and surely turning itself into an agent of Chinese state control.  They quietly but willingly accept all the duties of self-censorship which the rest of the Chinese media subscribes to.  And then bit by bit, they begin to give the Chinese government the information it needs, ultimately leading to the arrests of several Chinese dissidents.  So there's a little bit of an "Apocalypse Now" feeling.  The once-champion of free speech turns into a company who stock was once valued at almost $475, dives to $9, becomes subservient to the Chinese state.  And you have, just in that one story about Yahoo, a persuasive picture of what happened to internet freedom over the past decade.

Gross: Now, as you say, Yahoo says it gave up a majority stake in its company to a Chinese company and the Chinese company has to follow Chinese law. 

Wu:  That's true.  And what's fascinating about that is that Yahoo went to China with its plans to make money and become a great... and it ultimately retreated from the Chinese market having participated.  When it handed over the information on dissidents, it did so as Yahoo, not just an owner in a Chinese company.  It ended up rereating from the Chinese marketplace altogether, not because of the controls but because it lacked the ability to make money in China because it didn't understand the Chinese market well.  So again, the differences in culture and geography ended up mattering a lot more than Yahoo thought.  Yahoo thought it could just go to China, do the same thing it did in America, [?] into some censorship laws, and come up making money.  But that didn't end up working. 

Gross:  You describe China as having surrounded itself with the world's most sophisticated information barrier.  How did they do it?  How did they manage to censor websites from around the world?

Wu:  Well, technically it's rather easy.  I actually don't think that's the most important part of Chinese control. But I'll tell you how they do set up that barrier.  They simply have a list of sites -- which changes frequently but they have a list of sites monitored through the IP address which are blocked from inside China.  That is, when those site are requested from overseas, the routers, or the computers at the border, simply drop those sites and don't pass them on.  It's very easy to do.  It's actually easier to drop the site that it is to pass it. Every router -- every part of the internet -- is designed to be able to drop sites.  They're used in corporate security measures and so on.  So it's a routine part of the internet to be able to censor, in fact.  It's built in to the technology of the internet to be able to censor.  The difference between China and a country like the US or Canada is that China certainly just turns on the filters.

Gross:  And has China been able to do this with the help of high-tech expertise from American companies.

Wu:  Well sure!  You know, I spent time in the early 2000's in China marketing some of these goods, and they used standard American equipment.  Most of the filtering technology was originally built for corporate intranets.  That is, networks inside companies designed to control employees. China simply turns that around and uses it to control its citizens. 

Gross:  Did you say you were selling these screening technologies to China? 

Wu:  We were marketing them.  That's right.

Gross:  How did you feel about that?  Did you feel like you were helping China censor its citizens?

Wu:  Well, we weren't really successful enough!  I didn't work for Cisco, I worked for a competing company.  Cisco was the top dog at the day and they were much more successful.  Yeah, I had uneasy feelings about it.  We had a lot of meetings with the Chinese ministers, and the whole business seemed to me a bit... you know, the level of submissiveness we displayed to the Chinese government I thought was a little bit unseemly.  But that was the way people did business.

Gross:  You describe China as a paradox because on the one hand it wants to have the most sophisticated internet system in the world and really excel in hi-tech, and on the other hand it wants to control the information and censor it.

Wu:  Yes, that's right.  It's completely a paradox.  If you go to China today, you'll find that information is flourishing as never before.  People are chatty; there are bloggers; there's all kinds of stuff going on.  But there's a line in there somewhere and if you cross that line, you get in trouble very, very quickly. Recently, in the last several months, several Chinese quasi-dissidents, really just journalists, have been abducted, kidnapped, for doing pretty mundane things.  And in our book we document cases where posting a joke about why prostitutes are better than the government can land you with administrative punishments, imprisonment.  So it feels very open.  It feels completely normal.  And that's what's very strange about the control in China.  But you cross a certain line and it's curtains for you. 

Gross:  You say that the Chinese internet is becoming less and less like its counterparts.  Is it only censorship that it's becoming different, or are there other differences between the Chinese internet and what we're familiar with here?

Wu:   Yes, there are a lot of cultural differences that end up being built into it.  You can speculate on why that is.  Chinese people, for some reason, love chat rooms.  I dn't really know why that is, but they're a dominant form of discourse in the Chinese internet.  People chatting away, chatting away.  Chat rooms are not that popular in the US.  They've never really taken off.  If you look at Japan, there is a different structure of the way the people use the internet that's mostly based on cellphone usage.  People typing away in the Shinka-sen, in the bullet train, or on the way to work. So there are starting to be strong differences in the ways these networks work.  They're actually being built differently to reflect the different cultural interests of different countries.

Gross:  In your analysis of the directions the internet has taken in different countries -- and the attempts of government to control those directions -- what cultural differences have you come across in how different countries are shaping the internet?

Goldsmith:  So we've been talking thus far about how governments are imposing their controls from above.  That's a large factor in why the internet is becoming bordered.  But in fact the internet started to become bordered, not because of government controls from above.   Governments were, in fact, fairly slow to react to the internet.  The first impetus for a bordered internet, an internet that differed from place to place, actually came from people below who were using the internet in different places.  People who spoke different languages, had different values, and the like.  So, for example, in the early years of the internet -- at least in the mid-1990's -- the internet was dominated by the English language because most website and most internet users were English speakers. And many people in the 1990's thought that the internet would be the vehicle for English to sweep over the world.  In fact the opposite has happened.  People in the world who don't speak English don't want to see an internet in English, they want it in their local languages. And so when you go to different places, you look at internet websites in those different places, and they tend to come up in local languages, reflecting local cultures.  The same thing happened with internet advertising.  It wasn't very useful to have an advertisement for 1-800-FLOWERS in New York if you were looking at the internet in France or in China or in India.  So internet users in different places with different tastes and different concerns started demanding an internet that conformed to their local interests.  That, in effect is how the internet first started becoming bordered.  It was the technologies developed to enable private demands for local content.  Filtering technologies on the internet -- geographical filtering technologies -- first grew up in that context, to meet private demand.  Only later the governments came along and used those filtering tools to suit their own ends.

Gross:  How effective is internet censorship within countries?  Do they really censor out all the websites with information that the government considers inappropriate or dangerous for its citizens?  Or does a lot of stuff really get through?  Is there a lot of freedom and anarchy on the internet in spite of the strictest government's best efforts to clamp down?

Goldsmith:  Well, sure.  It really depends on, in the first instance, how much the government cares about clamping down on information.  China is one of the most extreme cases.  They're very severe in clamping down on information.  But even there things get through occasionally and for a short period of time.  In the US, where we value privacy and freedom of speech more, many, many more things get through, even though we try to filter in some respects here as well. But the important point is for censorship to work it doesn't have to be perfect.  The government doesn't need to cut out the prohibited information 100% to be effective.  That's not the way that law works generally.  It doesn't try to reduce the incidence of legal violations to zero, it simply tries to keep it at such a rate where the government can achieve the ends it wants.  In the Chinese government, for example, they just want to make sure the government stays in power.  That doesn't mean that they can't ever let anything through at any cost.  It just means that they can't let information in that's going to lead to a situation where their power will be challenged. 

Wu:  Yes.  I think it's a very mixed situation.  I think there's a lot more information out there that hasn't necessarily threatened governments' control or governments' control over theirselves.  Particularly if you look at countries like Singapore and China, and particularly if you spend time there, there's this weird sensation, as I said, of everything feeling normal but for some reason there's something missing and it's called criticism of government.  You can look for it, but you have to look kind of hard.  If you're just leading a normal kind of life, you just won't run into it.  In fact you'll run into much more of what's really propaganda -- people talking about how great the state is, how great the government is.  And with there being more total information, there's also a lot more information and a lot more boosting of the state. There is a greater volume of information but also the mix the government wants of criticism vs. state boosterism.  I think it's that ratio between how much support for the state vs. criticism which is really essential, as opposed to just some forbidden content getting through.

Gross:  Let's look at attempts by the US government to assert its authority over the internet.  For example, the government requested that Google hand over its search data base so the government could see who was going to certain porn sites.  So it could enforce the "Child Online Protection Act."  Would you talk a little bit about this case and how it was resolved?

Wu:  Search engines are an important target for government control because almost everything goes through a search engine.  And for the most part, the US hasn't exercised that much control.  But the Google case showed the potential for it.  That case itself was a request that Google turn over a huge amount of search records that it keeps, records of what everybody has searched for as long as Google's been around.  They asked, I believe, for a million such records.  They wanted to find out how often people were actually looking for pornography as opposed to other things.  But the point of the case wasn't that relevant to the subject of the case. What was relevant that it suddenly became obvious to people that government has the power to get from companies like Google, companies like Yahoo, everything that you've ever looked for in your life.  For most Americans, I think, there's a lot of potentially embarrassing things that they've looked for at one point in their life or another, whether an illness or some strange obsession.  And so this case made it suddenly a lot more obvious to Americans that government has the power over the internet that other countries have been more obviously exercising. 

Gross:  Google fought the government's request.  Then the judge reduced the request to only 50,000 web addresses.

Wu:  Right.  And so I think what you learn from this case... there's a couple of things:  first of all, the interesting thing is that Google is storing all this information in the first place which is a surprise to many people -- that everything you've ever searched for in Google is in a database in a computer somewhere.  But the other point more relevant to our book is that this shows to people that whether it's a million or 50,000, it's the law that's making this decision.  Maybe that's not a surprise to lawyers.  But I think it's a surprise to people who sort of thought that their search results went off into a little box somewhere never to come back.  They're there if government really wants to look at them.  People also speculate that other parts of the government which did not announce their activities openly have also been looking at search results -- or other parts of government like the NSA which aren't required to tell the public or anyone what they're doing have also been looking at things people search for.

Gross:  Since your book is in part a study of how governments have tried successfully and unsuccessfully to assert their authority over the internet, what are some of the ways you think the government needs to be involved, or should be involved with the internet?

Wu:  I'm a big believer in internet freedom and I'm a big believer in self-governing communities on the internet.  But what our history shows over the past decade is how often these flourishing, self-governing communities rely on sort of a base line of government force for really extreme situations.  The eBay story is really the best example.  eBay set itself up to be a self-governing community that would rely on feedback and rely on the good will of its members.  And for the most part that worked. But they found in the late '90's that they had one day to call the FBI and ask for the FBI's help because the fraud problems were becoming just too serious. And so even eBay, which employs more people today than WalMart -- in other words, more people see themselves as self-employed -- a wonderful thing like eBay has a certain requirement of policing from the government for the really bad types, for the people who don't listen to anything, who don't care about their reputations on eBay.  That's where I think even the best internet freedoms at some level have some reliance on physical coercion provided by government.

Gross:  But that's a more kind of ad hoc relationship, isn't it?  It's not like the government is a partner in eBay or tells eBay how to run its site.  It's just that if there's a scam, a fraud, on eBay, eBay can turn to law enforcement authorities to help it.  Right?

Wu:  To the contrary!  They work very closely together.  eBay hired former law enforcement officials.  It has over 800 right now.  And they work hand-in-hand with federal and state officials.  So they don't just call them in for big cases.  They work day-to-day, hand-in-hand, constantly fighting fraud.  Many people are not aware of this.  But it is quite a private-public partnership that powers eBay.

Goldsmith: This is not a trivial .. service the government's providing.  If you didn't have a government willing to help eBay police fraud and prevent it, if you didn't have the government spending its resources to throw people in jail who try to commit fraud on eBay, throw people in jail or at least enforce contracts for people that make contracts on eBay -- if the government wasn't providing those services, eBay literally couldn't exist.  It would be a much much more expensive service.  People wouldn't be able to use it nearly as much. And eBay as we know it really couldn't happen.  So without the hidden hand of government there helping out, eBay and many many other internet commercial services simply couldn't work.

Gross:  Have either of you found that your thinking has changed about the relationship of government and the internet?

Goldsmith:  I think that over the course of writing this book, we both came to discover and appreciate the virtues of government regulation and government control.  I think it's fair to say that Tim and I are both... I can't speak for Tim, but I think we're both fairly libertarian, I think we're suspicious of government regulation.  At least as a starting point.  But time and time again, writing this book, we kept stumbling on hidden ways that government actually helped out and that government was actually necessary to help make all of our everyday experiences on the internet work.

Wu:  You know, I was on the internet in the late '80's.  Sort of early on this.  My early career in networking was as a pirate downloading illegal software.  (I hope the statute of limitations is over now!) 

Gross:  I'll be reporting you as soon as this interview is over!

Wu:  I was a pirate BBS'er.  So I've sort of had a long-standing... contempt for government.  I think, too, in writing the book, I became sort of reconvinced of what Hobbes said in The Leviathan, that some of the underlying virtues of basic physical security are very difficult to replace. Technology can help and it's a useful tool, but really there's no substitute for trying to convince and get the right policies.  I think I'm fascinated.  I think one of the underlying themes of the book is I think we don't fully understand the effects of law-breaking and its effect on the law.  The internet has inspired a lot of law-breaking.  Our claim in the book is not that somehow government's control has been perfect or that nothing has changed -- that the internet revolution is nothing.  There are a lot of laws that have been broken pervasively.  Copyright law is a great example. Now the law is central to the dispute and the law gets broken a lot and I've become very interested in these patterns of law-breaking, crackdown, law-breaking, crackdown and how that changes society, how that changes the law itself, and how that ultimately affects the underlying technology.  We're not done with that project and understanding that.  But I think that's something that I think sometimes can actually be good.  I think it can sometimes be healthy to have a little bit of law-breaking when the technology changes.  I'm not someone who has become, from writing this book, an absolute statist who believes that the state must control everything like some kind of French political theorist.  Rather, I've become interested in the fascinating ways in which law-breaking helps us evolve and actually improves the legal system. 

Gross:  You confess that earlier in your life you were an internet pirate.  Do you think that piracy led to important changes?

Wu:  Yes, I think it has.  By definition, some of the piracy that goes on on the internet is criminal, but it's part of a process whereby we're finally getting to better distribution of music. Copyright law thoughout its history goes through these waves of piracy.  It was the same with radio.  It was the same with the record player, the original pirate industry.  It's the same with cable TV.  All these industries begin as pirates.  And law-breaking is almost a necessary part of the industry's evolution to better distribution systems.  It's almost like mutations in DNA.  Things have to go wrong before they get better.  And so yes, in some ways, Napster...  you can call them pirates but it's also part of a healthy industrial evolution towards better distribution.  And today it may not be perfect, but I notice I can get music on iTunes for 99 cents and that's a lot better than having to tromp my way off to Tower and buy these $15 CD's.  So it's not perfect, but it's one way in which the system, which otherwise would be stagnant, can evolve. 

Gross:  You don't think there would have been an iTunes without Napster?

Wu:  I don't think so.  I know that Steve Jobs copied Kazaa -- studied Kazaa -- which was the major pirate site of its time, in designing iTunes.  I think that Napster begot Kazaa, and Kazaa begot iTunes, and that was, while a little rough along the way, a healthy evolution.

4/25/06: NPR: "Talk of the Nation": The generals and Rumsfeld's leadership; John Kerry on Rumsfeld and dissent

4/25/06:  NPR:  "Talk of the Nation": The generals and Rumsfeld's leadership; John Kerry on Rumsfeld and dissent

Host:  Neal Conan

Neal Conan:  Secretary of Defense, Donald Rumsfeld, has come under fire from retired US generals who demand his departure for what they call "broad failures in Iraq."  Secretary Rumsfeld has heard calls for his head before, notably after the ghastly images from Abu Ghraib came to light a couple of years ago.  But the generals present a different indictment.  "Arrogant," "hubris," "micromanagement," "incompetence," "refusal to admit strategic and operational errors," and "refusal to accept sound military advice when it was offered."  The President has defended his Secretary and, after the charges surfaced, a second group of generals emerged to support Secretary Rumsfeld and attack his critics as opponents of military transformation and, in some cases, as officers trying to deflect blame from their own mistakes.  Beyond the substance of the case, many in uniform and out question the circumstances.  It is highly unusual for even retired military officers to criticize civilian leadership in public, especially in time of war.  The issue is not dissent, per se, but the basic constitutional principle that places the military firmly under the control of civilians.  We'll talk with one of Secretary Rumsfeld's critics.  Later in the program, Senator John Kerry joins us on the thirty-fifty anniversary of his testimony to the Senate Foreign Relations Committee about the war in Vietnam... We begin with retired Major General John Batiste, a West Point graduate who retired last year after 31 years in the Army. He commanded the Army's 1st Infantry Division in Iraq and in Kosovo.  He's now president of Klein Steel Services.  General, nice to have you on the program today!

General John Batiste:  Neal, thank you!  I appreciate the invitation!

Calling on Rumsfeld to step down

Conan:  You're calling on Secretary Rumsfeld to step down. Why?

Batiste:  Absolutely.  For a series of reasons.  One, he made some strategic blunders with decisions taken before and in the initial phases of the operation in Iraq.  And secondly, he treated military with contempt, with dismissiveness and arrogance, would not listen to sound military advice. 

Conan:  You turned down, reportedly, a promotion to three stars.  Before you decided to step down, was that the reason why?

Batiste:  Neal, I had, by all accounts, a very promising career in the military. I elected to retire on principle in part so that you and I could be having this discussion today.  You know, if I was still in uniform, I'd be violating the Uniform Code of Military Justice. 

Conan:  Yet a lot of people remember the example of General Shinseki, then the Army Chief of Staff, who was asked his military opinion before the US Congress and said he thought maybe 350,000 troops were going to be needed after the toppling of Saddam Hussein's regime in Iraq and he was retired a year early.

Batiste:  He was certainly retired and replaced.  A lot of us took note of the shabby treatment that he received.  A very distinguished officer who quite frankly knew what he was talking about. 

Was the generals' dissent coordinated?

Conan:  Were you among those officers --  again, you commanded the 1st Infantry Division in Iraq -- who brought up these criticisms privately in channels to the Secretary?

Batiste:  Listen, we always dealt within the system, within the military.  We had great debates within the military.  Candid.  Very heated.  But at a point in time a commander makes a decision.  And then you have two options.  One, you can either execute the best idea you've ever heard or you can get out!  I personally chose to stay with my soldiers in combat to complete the mission as best we could.

Conan:  You said you had these disagreements within the chain of command.  You didn't go outside that chain of command and send anything directly to the Secretary. 

Batiste:  I didn't go outside the chain of command.  No.  I stayed right where I needed to be.

Conan:  I wonder -- now that you've come out in public with seven other generals it should be said...  And for one thing, some people have been asking whether this was coordinated in anyway?

Batiste:  Not it's not!  Isn't that something!  It's all spontaneous because it's the right thing to do.

Conan:  And the other question that some people are saying is that when you have prominent retired officers questioning their civilian leadership, the Secretary of Defense, calling for him to step down during a time of war, that brings into question the principle of civilian control of the military.

Batiste:  Neal, civilian control of the military is fundamental.  We must have it.  There's no question about that.  What we have here is a question of accountability, a series of strategic blunders which took away what should have been a very deliberate victory and created a prolonged challenge.  Let there be no mistake:  we will win the war on terrorism.  We must complete what we started in Iraq.  But it didn't need to be this hard.  We went to war with the wrong plan.  I'm not saying at all that we should have repeated what we did in the Gulf War in 1991.  But we needed to consider the hard work to build the peace after we took down the regime.  I'm afraid that our leadership hand-waved that away.  We set the conditions for Abu Ghraib.  We have our young soldiers, in some cases untrained and poorly led, ambiguous rules for the treatment of prisoners in interrogation.  On top of that, you had insufficient boots on the ground over there so that our commanders, who should have been focused on leading and planning and anticipating opportunities, were focused on managing shortages.  Incredibly frustrating.  On top of that, you had senior civilian leadership in the Department of Defense who chose to stand down the Iraq military. When you're fighting an insurgency -- which should have been no surprise to anybody if you've read even a little bit about the history of Iraq and the complexity of its tribes, its religious factions, the Sunni and the Shia, and the ethnic diversity, Arab and Kurd, you know there's going to be an insurgency.  The Brits had this experience back in the last century in spades.  So the last thing you want to do is stand down such an important institution.  We would have figured out who the bad apples were in that bunch and gotten rid of them!  But we needed the military -- the Iraqi military and the police, an institution that was respected -- to keep this thing going and build the peace in a very deliberate fashion.

An active duty soldier disagrees with the generals

Conan:  Let's get some listeners in on the conversation.  ...Daniel is calling us from Texas.

Daniel:  I'm an active duty soldier right now.  I've been over there to the theatre.  A lot of this sounds like armchair quarterbacking on the Saturday after the Super Bowl.  Since anyone ever enters the military, they're taught you never talk bad about your chain of command, especially in front of everybody, when there's more constructive channels to go about it.  I just wonder what these generals... I saw General the other day saying that, Oh, wouldn't you expect this of somebody if the soldiers are going to war with poor equipment.  I'd say yeah, I'd expect the generals to make complaints through the proper channels, perhaps bring it up to the Secretary in a letter they could all sign instead of just going on air and trying to bash everyone in the upper echelons of the military.

Batiste:  Let me just say first to the caller, thank you for the service to your country.  You're absolutely wonderful...  The answer to that is pretty simple. We could not effect change from within.  We have a long war on terrorism in front of us.  This going to go on... anybody's guess.  And there are some really signifiant decisions that will have to be made in the near future about any number of actions that we must take and my point is -- and others, I think -- that why not have a Secretary of Defense whose instinct and judgment and motivation we trust, who has a good track record to make those really important decisions for our country.

Daniel:  I just wonder.  Basically when times are hard, every single leader has always been criticized.  Everyone from Lincoln... Nobody liked Ulysses Grant in the very beginning of the Civil War when he wasn't bringing in the victories.  I just wonder.  Hindsight's 20/20.  Who is there to say exactly who is going to be successful as Secretary of Defense and who is not.  Personally I have no great love for the Secretary, but that is our chain of command and I feel we should support him and any complaint necessary should be made through proper channels, observing proper protocol.

Conan:  Thanks very much, Daniel.  Let's bring in another voice now.  Mike Davidson joins us.  He retired from the staff of the Joint Chiefs five years ago with the rank of Major General. ... Nice to have you back on the program, Mike!

Mike Davidson:  Thank you, Neal.  And I had the great good pleasure of serving on the Joint staff with John Batiste down the hall from me!

Conan:  Given what he has had to say, I wonder.  You've not come out publicly on either side of this issue.  Where do you come down?

Davidson:  I haven't come out publicly and probably won't.  I'm glad John and the other guys have raised those issues.  If retired generals don't raise that kind of issue, where's it going to come from? I think it's a first-rate thing to do.  I'm not sure we ought to spend the next six months worrying about whether the Secretary of Defense stays.  The President says he's the decider.  He says he has decided.  I think we ought to take this energy, which is great, and turn it toward relooking some of these policies in Iraq which everyone will admit have not worked as well as we had hoped.


Accountability in the Department of Defense

Conan:  What about that issue that General Batiste raises about accountability?  Somebody's got to take responsibility for those errors which were made.

Davidson:  Well, they can do that when they write the history books.  What I would rather do is take that energy and go through some of these policies that even the Secretary of Defense will tell you have not worked out the way they had hoped.

Conan:  What about that issue of civilian control of the military?  to have generals holding the Secretary of Defense responsible in time of war?  Doesn't that raise questions?

Davidson:  It does not.  I know you're knowledgeable enough about this... I don't think that's a serious issue.  Let me tell you why, very briefly.  The last general officer that I'm aware of, or have read about, that went in and gave the President of the US bad news was Matthew Ridgeway in 1954 when he tried to get the Air Force and the Navy successfully to not use nuclear weapons around the jungle at Dien Bien Phu.  Since then we have created such a massive bureaucracy between our senior generals and the President that somebody's got to come up on the net and talk about things that aren't working well.  That's what I think John and the others guys have done.  It's truly an act of conscience, an act of integrity, and something we ought to be glad we've got guys that will do it.

[break, recap]

"Dereliction of Duty"

Conan:  Let's see if we can get some more listeners on the line.  Annette's calling us from Arlington, Virginia.

Annette:  As the daughter of a retired Air Force general and the wife of an Air Force colonel, I'm very interested in the idea of dissent as patriotism.  I am wondering what General Batiste thinks of Mr. McMasters' dissertation-turned-book, "Dereliction of Duty," and the fact that Mr. McMasters is still on active duty.

Conan:  Col. McMasters' book was about Vietnam.  General Batiste?

Batiste:  I think that the book, "Dereliction of Duty," is something everyone ought to read.  I think Col. McMasters had every right to write it while he was on active duty.  It was some years after the Vietnam War, and I think that's a healthy discourse that we must have.

Conan:  General Davidson, you were a 2nd Lieutenant in the Rangers in Vietnam and sometimes at the end of a very lonely line.  I wonder whether you thought at that time that senior officers ought to be speaking out?

Davidson:  At that time I thought a senior officer was a captain!  My policy position consisted of an AR rifle and four young soldiers.  So I never gave it a thought!  I was somewhat responsible for HR's [McMasters'] going down the road: my doctoral dissertation became an article which became a footnote in his book.  So I'm not blameless on that issue!

Conan:  But you think in retrospect senior officers should have spoken out about Vietnam?

Davidson:  They absolutely should have.  And that was a time when Maxwell Taylor did not go to the White House and tell the President that he was looking at an enormous risk.  So I would tell you that Matthew Ridgeway served Dwight Eisenhower a lot better in Vietnam in the '50's than all of the generals, including Maxwell Taylor -- and he certainly wasn't the only one -- served Lyndon Johnson.  And if we had that perceptive comment that Daniel, the caller, made earlier about hindsight being 20/20, I'll bet you when Lyndon Johnson declined to run for president in '68, he would have thought the same thing.

Annette: I was wondering whether General Batiste feels as though there is any constructive dissent going on now, or whether everyone has been cowed?

Batiste:  Well, I think, Annette, that those on active duty really need to speak for themselves.  I can tell you that the senior civilian leadership in the Department of Defense has been very dismissive and contemptuous of senior militaries.  And sadly I think that one of the jobs of senior military officers is to be 1) competent in the principlies of war, and then 2) willing to stand up and be heard when it counts.

Annette:  God bless you!  Thank you very much! You speak for a lot of people on active duty. 

The anger and disgust of soldiers

Conan:  Let's turn now to Ann calling from San Jose.

Ann:  Hi! ... ...My son is a Staff Sergeant in the 82nd Airborne and he just returned a few months ago from his third deployment to Iraq and I just would like to say thank you, General, and to all of the generals who are speaking out on behalf of those who are wearing the uniform and who are boots on the ground over there in Iraq.  My son has said for a long time that Rumsfeld has made such a mess of this war.  He's so disgusted and I can't thank you enough for speaking out.  I think it's important for people to know how many of the mid-level NCO's are leaving the military because they're so disenchanted with the levels of bureaucracy, with the poor decision-making, and with what they're seeing.  The last group that were [ ? ] out were about 70% of fairly high-level NCO's.   I think people need to be aware of what this civilian administration is doing to the military.  Whether you believe in the military or not, whether you believe in the war or not, I think it's important for us to look at what's going on within that institution.

Batiste:  Wow!  My response is God bless service men and women and their families.

Conan:  Ann does raise a question that has come up from your critics, General Batiste, and that is by saying your leaders ... are incompetent, you might be affecting morale, too.

Batiste:  Oh, nonsense!  This is not affecting morale at all.  The enemy fears our great men and women in Iraq and other places today as much as they did two weeks ago, before I spoke out.  This is all about doing the right thing.  The harder right instead of the easier wrong.  It's calling a spade a spade.  It's holding people accountable for their mistakes.  And frankly, the stakes are pretty high.  We have a long war in front of us, and I for one, a citizen of the US, think we deserve senior leadership in the Department of Defense whose instincts and judgments we trust. 


Abu Ghraib

Conan:  Let's talk now with Don who's calling us from Louisiana.

Don:  Hi. I want to commend the general for speaking out.  I'm a retired Army medical officer.  I was an Airborne Ranger, Special Forces.  Many of us retirees -- I retired in '99 -- have been wondering what's going on, who's in charge up there.  As the General knows, the commander is responsible for everything that happens on the battlefield and everything that doesn't happen on the battlefield.  Many of us want to know, where was the chain of command with an issue like Abu Ghraib? Where are the 1st sergeants, the sergeant-majors, and then those senior officers who are responsible?  How is it that they could just hang those young soldiers out to dry?  To me that was one of the most despicable instances of the lack of military leadership that I have seen in the thirty years I've been associated with the military.

Conan:  General Batiste, is that one of the issues of accountability you think Secretary Rumsfeld owes for?

Batiste:  I do.  I think Abu Ghraib is a national disgrace and it never should have happened.  It came out, as I said earlier, because there were ambiguous rules established that they changed all too often for the treatment of prisoners and interrogation procedures.  As I said, we had commanders on the ground then, in 2003 and early 2004, who were so consumed by the challenges of managing shortages, they didn't have enough boots on the ground to accomplish the mission.  They were so consumed with that, that we didn't pay enough attention to leading, to supervising and anticipating an opportunity on the battlefield.

Conan:  Let's bring another voice into the conversation, now.  Andrew Bacevich, a professor of International Relations at Boston University, and also a retired colonel in the Army.  He joins us on the phone from his office at BU.  Professor, nice to have you on the program today!

Importance of keeping military out of civilian politics and under civilian control

Bacevich:  Thanks for having me.

Conan:  Professor, the Military Code traditionally bars members of the military from engaging in civilian politics and publicly challenging civilian leadership especially in times of war.  Does this "revolt of the generals," if you will, does it give you pause?

Bacevich: I must admit I'm on the other side of the fence from General Batiste on this.  I guess I'm on the same side certainly in the sense that I find great fault with Secretary Rumsfeld and believe that he should have been fired long ago.  But having said that, it's not the business of generals to hold civilian officials accountable.  It's the business of the Congress and it's the business of the people.  I wouldn't for a second question the right of retired officers to speak out, but I think that they probably ought to think carefully about the wisdom of exercising that right.  If the dissident generals succeed in ousting Secretary Rumsfeld, they will in fact be subverting the principle of civilian control, regardless of where one stands on the war.  And I would emphasize I am against the war.  Regardless of where you stand on the war, one ought to be very careful about subverting that crucial principle.

Conan:  How does this play out?  How is this a threat?

Bacevich:  Well, I think it's a threat if tomorrow Rumsfeld announces that he has resigned, regardless of what the President says, it will be understood that he was fired; regardless of what the President says, it will be understood that he was fired because he fell out of favor with senior officers.  In effect, we will have created a situation in which future secretaries of defense will be seen to be serving at the pleasure of the generals, in which secretaries will in part be appointed based on whether or not they are perceived to be acceptable to military officers, in which senior officials will have to be looking over their shoulders to try to make sure that they are satisfying general officers.  And again, that's not civilian control.  That is something other than civilian control.  Going all the way back to the founding of this Republic and the modelling done by General George Washington, civilian control has been a paramount value.  We ought not to tamper with that.

Batiste:  I absolutely agree with Andrew.  Civilian control is important.  We'll never back away from that.  Remember, I hung up my uniform and I never abrogated my rights as an American citizen to speak out.  This is all about accountability and there is no leader in any organization I've ever seen who's indispensable.  If I had been killed or wounded as a commander of the 1st Infantry Division in Iraq, there would have been a replacement identified instantaneously, and that major general and that division would not have missed a beat.  I would tell you that the same is true of the Department of Defense.  Civilian control is important.  It's paramount.  But this is a point in history. This was gut-wrenching for guys like me to do this.  We did it because it's the right thing to do.

Conan:  General Davidson, he's talking about gut-wrenching -- this is clearly... extraordinary for eight generals to come out and say something like that. 

Davidson:  It is.  But again, I think we need to encourage them to do this for this reason: if the war was going well, we would be nominating Rumsfeld for sainthood.  The issue is not his personality -- although many of the criticisms are well-founded.  I think the issue is, and I think John [Batiste] would agree with this: at the end of the day what we're looking for is a better policy for the war in Iraq and if we can find that with the crew that's there, let's move off and do it.  I think John and Tony Zinni's idea is that we'll not get a change with the crew that's there.  And I take a different view on that.

Military in political campaigns

Conan: ...Andrew Bacevich, ... haven't we crossed the line of intermingling of senior military officers and politicians.  In this past presidential campaign, both presidential candidates surrounded themselves with a coterie of former chairmen of the Joint Chiefs.

Bacevich: A point well made.  Really, in my judgment, this latest flap is really indicative of a much larger problem with civil-military relations.  And you're exactly right.  In the past, what, three presidential cycles, we've had Republicans and Democrats competing with one another to see who can parade the most significant roster of recently retired generals.  So the officer corps has been made into a pawn of politics.  The officer corps is increasingly politicized. Those trends reinforce my concern about the implications of this particular campaign.  Again, I would emphasize that I would not for a second defend the performance of Secretary Rumsfeld. He is a failure.  The war policy has failed.  He should go.  But it's not the business of generals to hold him accountable.  Quite frankly, I have my problems with the performance of the senior military leadership in Iraq.  And it seems to me that recently retired senior military leaders might do a better job to bring constructive criticism on the performance of the military itself rather than simply targetting the failures of Secretary Rumsfeld.

Conan:  Let's get another caller on the line.  This is John from Covington, KY.

John:  Thank you. I just wanted to say how much I appreciate the generals' speaking out.  It takes a lot of courage. The treatment of senior military officers is such that civilian control over the military is taught to them from the beginning and they take it very seriously. At the same time, we live in a democratic republic.  Without people standing up to let us know what's going on, neither Congress nor the public is aware of these issues.  And so it is a fine line to walk between when you speak up and when you don't.  Throughout history, this hasn't been a practice that you see all the time.  It is very rare. That's one of the reasons why it gives impetus to really listening to what these generals have to say.  Personally, as a citizen, as an ex-military -- I served in the US Army during Vietnam -- I'm just really proud of these gentlemen for standing up.  But most importantly as an American citizen, I know that them standing up and taking a position, they create the opportunity for that middle ground that some of your guests have referred to again.  Perhaps there is the opportunity to make constructive change.  And that opportunity would not exist if these generals had not taken the initiative.

Conan:  Andrew Bacevich, if these generals don't talk, how do we know something's wrong?

Bacevich:  Maybe I'm living on another planet, but the one I'm on suggests that about 2/3 of the American people have decided that this war was misguided and bungled long before any of these generals spoke out.  We don't need retired military officers to tell us when the policies are going awry.

Conan:  Andrew Bacevich, thanks very much for being with us today...

[recap and break]


Back to the accountability problem

Conan:  ... I wanted to ask you both to elucidate a little bit on the one area of disagreement I've heard emerge between you two guys, and that is, General Batiste, you say Secretary Rumsfeld should resign because we can't move ahead in Iraq with him in control, and General Davidson, you say you think he can -- this team can move ahead.  General Davidson, first, why do you think so?

Davidson:  Well, I think there's very little chance that the President and the Secretary of Defense will suddenly become infected with flexibility on this issue, so I think it's going to make a tough sell to make 'em change.  But I think we're more likely to make them change than if we bring in a new crew and start from scratch. 

Batiste:  I would say that it's a matter of accountability.  I think the American people deserve accountability. I think our service men and women and their families deserve the most competent senior civilian leadership in the Department of Defense. 

Conan:  Let's get another listener on the line.  This is Terry from Spearfish, ND.

Terry:  Hi.... May I first applaud both of these generals for having the moxie to stand up and say, Wait a second this is not right!  And if necessary to retire from their positions so they can bring it to the public's attention.  Secondly, is this going to end up being one of those exposés -- like Black Hawk Down -- where we absolutely messed up from one end to the other and didn't support our people?  That's what frightens me the most.  We are entrenched in something that's not going anywhere.

Conan:  And I think she's getting to that same point:  the way ahead.  General Batiste?

Batiste: Let me say that I think we've got the best military in the world, no question about it.  What they have accomplished in Iraq, operationally and tactically, is nothing short of amazing.  The good work that's going on, setting Iraq up for self-reliance, changing the people's attitude and giving them an alternative to the insurgency, we as Americans can all take enormous pride in what they've accomplished.  There's no doubt in my mind, assuming we have the political will in this country, that we will not stop until we complete what we started.  We must do that.  My whole point is that there were some very flawed decisions made that got us where we are today and it's an issue of accountability.  Any leader in an organization is responsible for what happens or what fails to happen.  We must have a senior leader in that department who's instincts and judgments we trust.  As we move down the road in this very long war on terrorism, we have some big decisions coming up.  Don't we want a person who has the right instincts?

Conan:  General Davidson, I'm going to give you the last shot. 

Davidson:  Mistakes were made.  Serious mistakes.  We are three years into a war that is very, very similar to Vietnam which lasted ten years.  The resolution will come.  There's a race going on.  Will the allegiance of the Iraqis to their government outpace the decline in support among the American population for our war in Vietnam [sic] and if we can change the policy, we can capture all the great work that's been done and can be done and we can succeed in Iraq.

Conan:  Terry, thank you very much for the call... Terry:  Thank you. Thank you, generals, for your objective opinions.

John Kerry on dissent, on veterans, and on why Rumsfeld should have resigned long since

Conan:  Thirty-five years ago, a  young Vietnam vet named John Kerry stood before the Senate Foreign Relations Committee and called for the withdrawal of American forces from Vietnam.  In testimony that draws criticism from some veterans' groups to this day, Kerry posed two powerful questions.

Kerry, on tape:  How do you ask a man to be the last man to die in Vietnam?  How do you ask a man to be the last man to die for a mistake?

Conan:  Speaking in Boston last Saturday, 35 years to the day after his original testimony, the US Senator and former presidential candidate said he believes today what he believed then:  that it was right to dissent from a war that was wrong.  To reject dissent  was not only wrong but dangerous. Kerry also called for a May 15th deadline for Iraqi leaders to put together a unity government in Baghdad or face the possibility of US withdrawal.... John Kerry joins us now from his office in the Capitol.  That day, 35 years ago, do you remember what you felt like that morning as you prepared to go before the Senate Foreign Relations Committee?

Kerry:  I was embarrassed that I was late to the hearing!  I arrived late and I had no idea I was the only person testifying.  So they were sitting there waiting for me and I felt a little badly. 

Conan:  Looking back, you said some controversial things that day.  Any regrets?

Kerry:  I said things that were true.  My only regret is that it took so long for America to reconcile the truth and in fact some people today still have not reconciled the truth.  The fact is there's a lot of revisionism going on about Vietnam even itself.  Unfortunately, as we know from Neal Sheehan's brilliant book, "Bright Shining Lie," and as we know from Robert McNamara's book about the war, McNamara himself had come to the conclusion that the war was not winnable.  He said the strategy was flawed years before I even protested.  So how can you second guess when the leaders themselves are sending people to die for something which they themselves no longer believe in.  It's ridiculous.

Conan:  As you know, some veterans' groups objected to your testimony when you said that atrocities in Vietnam were apparently less of an aberration and more routine.

Kerry:  Well, what I said was they happened.  And I quoted other people.  I said that this was something that happened in Vietnam, quoting a group of veterans that had testified to things that they had personally done.  But also said that there were things that happened on a routine on basis that unfortunately at that time in violation of some of the laws of warfare.  I didn't write the rules.  But I saw what I saw and I responded to them and I told the truth.  The fact is that free fire zones created an incredible ambiguity which some people dealt with differently from others.  The fact is that all of know that there was a saying in Vietnam that "if they're dead, they're VC.  And there were lots of people innocently caught up in that.  War's war. I don't think it does us any good to go backwards and rehash everything that happening in that period of time.  The bottom line is, our soldiers fought brilliantly.  Our soldiers, just like in Iraq, never lost battles. Our soldiers gave themselves and gave their all.  During Vietnam the soldiers were confused with the war itself, regrettably.  One of the things I'm proudest of is that we fought very very hard on return to pay attention to the soldiers, to make sure they weren't forgotten.  We helped raise the benefits at hospitals.  We helped raise the education benefits. We got Agent Orange recognized.  We got Post-Vietnam Stress Syndrome recognized.  We helped to close the gap with respect to knowledge about prisoners of war.  We did a lot of other things besides just talk about the war.  I think we kept faith with our fellow veterans. 

Conan: The last presidential election was awfully close.  If your testimony of 35 years ago is what cost you the presidency -- there's debate about that, but if it's so -- was it worth it?

Kerry:  I don't believe, number one, that it was, and number two, telling the truth is always worth it.  You have to tell the truth.  I think it's important... you know, we could have done more, perhaps, during the campaign, to respond to lies.  And there were a great many lies put out there about me and my service.  I could tell you that anytime in the future, if anyone wants to reassert one of those, they will be properly answered.  But the fact is that, in Iraq, we find ourselves in a sort of increasingly a situation with similarities. Now Iraq is not Vietnam.  I've said that a hundred times.  Iraq is not Vietnam.  We do have a fundamental confrontation with jihadists around the world.  We need to be effective in the way we're going to fight the war on terror.  I accept all of that.  What I don't accept is that Iraq, like Vietnam, has been based on a great deal of deception.  On a great deal of incompetence.  On a great deal of flawed strategy.  You just had General Batiste on.  You have a bunch of generals who have come forward lately, talking about the ways in which the Americans were misled, and the ways in which our troops have been exposed to danger without adequate strategy, planning, equipment -- which I think is unconscionable.  If there was any lesson in Vietnam, don't ever do that again!  And what you're hearing now from soldiers themselves is that some of the leadership has allowed that to happen again.  General Casey himself has said that our large presence of troops contributes to the feeling of occupation and that it delays the Iraqis standing up by themselves.  The target is supposed to be some 270,000 Iraqis in the security forces trained and standing up.  And the President has said that as they stand up, we'll stand down.  Well the fact is we've trained 242,000.  We're 30,000 shy of the final goal.  And we don't see people standing down. We don't see the Iraqis moving into positions they ought to be. If you train a pilot in America at Pensacola or Corpus Christi or wherever, you know when they're graduating, you know the date they'll be through their primary and secondary training, you know the date they can deploy.  Same for a Marine from the Marine Corps recruit depot or a soldier from Fort Benning.  We've been 3 1/2 years at this with the Iraqis who once upon a time had a million people in the army -- or 500,000 -- who fought against the Iranians for ten years.  Why are American soldiers still doing some of the things they're still doing in Iraq?  I think that's a legitimate question for all Americans to be asking.

Conan:  ...Let's get a listener on the line.  This is Mike calling from Strafford NJ:

Mike:  Senator Kerry -- glad to speak with you.  I voted for you.  I have a question for you.  Do you believe that the generals' dissent in genuine, or is this payback for Rumsfeld's stated goal at the beginning of his term. "Transformation." Strafe the military.

Kerry:  No, I think it's very genuine.  Most of the military folks I talked to accept that we have to have a transformation of the military.  People aren't fighting a transformation of the military tooth and nail.  The thing is that we're going to need a little of both of the things being argued about.  We need a faster, lighter, more flexible special operations ability because that's part of the kind of thing we're going to be fighting.  But we also need to have the ability to slug it out the way the Army and the Marines have in the past in certain kinds of wartime scenarios.  I don't think there's been enough transformation to be honest with you.  I think whatever transformation Rumsfeld has been talking about was completely sidetracked anyway by Iraq.  The fact is there's been precious little real transformation of the military over the course of the Rumsfeld tenure.  I think what they're objecting to is exactly what they're talking about.  They're objecting to going to war in the way that we did where whole plans were just thrown aside.  Where generals and their best advice was just ignored and then a kind of chill was sent throughout the military higher brass because of what happened to General Shinseki.  So people obviously -- and we can argue whether they should have or shouldn't have -- but the fact is the result was that there was a chill and careerism and the sort of culture set in which prevented people from speaking up sooner.

Conan:  Senator Kerry, are you concerned by the concerns of Andrew Bacevich and others we've had on this show saying that, if this succeeds in driving Secretary  Rumsfeld from officem, you're threatening civilian control of the military?

Kerry:  That's just the most ridiculous thing I've ever heard in my life!  First of all, the generals who are speaking out are retired.  They're all retired!  Who is kidding who! You don't give up your citizenship in the United States of America when you retire from the military.  You don't even give it up when you're in the military!  You have a right to vote.  And there's certainly an unspoken rule that you don't stand up and get involved in politics when you're in the direct chain of command and you work for the Commander-in-Chief.  We all understand that.  But these folks are retired.  And they have a sense of patriotic duty and responsibility that's driving them to speak out. Now the notion that this threatens civilian control of the military is just ridiculous. ... What they're doing is saying, Where's the accountability!  They're asking the question that many of us in Congress have asked.  I asked for Secretary Rumsfeld's resignation over two years ago.  He should have resigned over Abu Ghraib.  He should have resigned over what happened in Iraq when they completely misinterpreted the insurgency.  He should have resigned over the lack of armor, the lack of adequate numbers of troops and support for our troops.  He should have resigned for the failure to commit enough troops to Tora Bora to actually surround and capture Osama bin Laden.

Conan:  Senator Kerry, thank you very much.  I'm afraid we're out of time.  But we appreciate your being with us today.

Kerry:  Good to be with you!

A Democratic voice on permanent bases in Iraq, national security, corruption, courageous generals, and a gutless Congress

Excerpts from an interview with Gary Hart on the Al Franken Show about Iraq and permanent bases, a useless Congress and a corrupt presidency. 

The protesting military

The mainstream media are missing the point.  Of course Rumsfeld listened to the generals.  The question is, did he follow their advice?  And the answer is no!  The dispute seems to be, did he listen or did he not listen to the generals, assuming that if he'd listened he'd do as they recommended.  He did listen. He didn't do as they recommended.

I understand and accept the generals' statements that they were not at liberty to go public with their disputes while in uniform.  There is always the option of resigning in protest and I gather General Batiste gave up a star in order to state his case.  He deserves great commendation for that. 

Some of [the same sort of protest] happened during  Vietnam...  but not this many generals. 

A Congress without courage

To my knowledge there has not been one hour of [oversight] hearings in either house of the Congress on the conduct of the war.  What you have is a Congress dominated by people who think they took an oath to support the President when in fact the took an oath to uphold and defend the Constitution which requires them to oversee and critique the performance of the executive branch, not to support it.  And to a person I think they have failed. 

It was a Democratic Senate that began hearings, even under a Democratic president, on Vietnam, that caused the Vietnam war to turn.  Tough questions were asked by the Democrats of a Democratic administration, hour after hour after hour on public television.  Not just one-off canned testimony and thank you very much. 

Here you have, if you go farther back in history, an obscure senator from Missouri named Harry Truman who made his name in 1942-43 under a Democratic president holding hearings on contractor corruption.  It always happens in wartime.  [And both houses then had Democratic majorities.]

What's going to happen in the next five or ten years is all this corruption is going to come out and it will be monumental and the American people will say, How can this have happened.  Well, it can happen because of a corrupt administration *not* critiqued, not overseen, by the Congress.  The recent story is that a major contractor was supposed to build 122 neighborhood health clinics and only half a dozen or a dozen have been built and hundreds of millions of dollars have been spent "somewhere."  Or just taken.

 

Gambling with lies

[From Hart's new book, The Shield and the Cloak: "Tell the American people the truth and if they lend it their support it will be long-lasting.  If they are lied to, do not assume their support when things go wrong."] 

The plan was hatched as early as 1995.  To their credit, the neo-conservatives were public about what they thought ought to be done in the Middle East -- that is, overthrow Saddam Hussein and use Iraq as our political and military base to pacify the region.  That was always the plan.  The only difference is that once in office, they used 9/11 to obscure that plan and not tell the American people their real program.  Now I don't think, by the way, the way things have turned out, that they've given up.  I think we're building for military bases there.  I think that if the Iraqis are able to select a Prime Minister, one of his first acts will be to invite the US to stay in a major military capacity.  I know we're pouring concrete and welding steel which is permanent in my judgment.

 

Establishing permanent bases in Iraq

Yes, our goal was to establish permanent bases there. The President has said, "As soon as they stand up, we'll stand down."  If we had oversight hearings we could smoke this out.  *How long do we plan to stay?*  It's a pretty simple factual question -- and not let Rumsfeld get by with his usual obfuscation about, well, what does "permanent" mean... we don't know what the future may hold...   and slide off the point.  I think these questions have to be asked:  How many bases are we building?  Where are they located? How much money has been spent on them?  What is the long-range plan?   Are we or are we not prepared to position troops permanently in the region, a la Korea, Germany, and so on? The amazing thing to me, when I blog on this, is that bloggers come back and say, Of course we are!  Well, if they know it, why can't it be told to the American people!

The President did say, when asked about when we'd leave Iraq, that it would be up to "future presidents" plural. He's saying he's not going to liquidate the war.  If it's going to be liquidated, it's not going to be on his watch.

 

The jihadists will follow Americans home from Iraq

The President did say we have to distinguish between insurgents and jihadists.  That's critical to have any hope of success in that country.  We can't keep calling these 40,000 to 50,000 people terrorists.  Are they using terrorist methods?  Yes.  Terrorism is a method, not an ideology.  All the experts on terrorism claim that of the 40 to 50,000, 90% are insurgents.  Which means that their goal is to get the occupying army out of their country.  I use the definition:  who will follow us home?  When the last marine crosses the border, are the 40 or 50,000 terrorists going to follow us home?  No!  Only 500 to 2,000 foreign jihadists.  There is a big difference between an insurgency and jihad.  Iraq is training the jihadists, and they will follow us home. 

If we made that distinction, instead of calling them all terrorists -- "we fighting them over there so we don't have to fight them here" is nonsense!. Khalilzad, our ambassador, has just begun to talk to the Sunni Arabs and that should have begun two or three years ago.  We should have made a Northern Ireland deal whereby they disarm as we withdraw.  And we call upon them to help drive the foreign jihadists out of their country. They don't get along.  They collaborate but they have distinctly different agendas.  Then create a national reconstruction bank in which the Europeans and Asians participate and their construction companies participate.  Third, have a constitutional guarantee as to fair distribution of oil revenues which is a key sticking factor in the whole equation.  The Sunnis think the Shiites are going to steal all the oil.

 

We may well lose the US army in Iraq

The same withdrawal plan could prevail.  I think there is a civil war there.  In fact I wrote a piece about a month ago that the New York Times and Washington Post turned down but the Boston Globe ran which said that if we wake up some morning and the whole country has erupted into a violent, countrywide civil war, we could lose our army there.  No one's talked about this.  The Army is dispersed through by and large central, but to a degree southern, Iraq.  If the nation became aflame, we've got platoon-size and smaller units scattered all over the country and the cities to try to pacify them, and they could be cut off.  They couldn't get back to the Green Zone to be extracted.  And we could lose the American Army there as Napoleon lost his army in Moscow.

 

National security:  "Three dimensional chess"

There's been an agenda from day one.  Richard Clark said that within days of the new administration coming in, every time he'd corner somebody in the hallway to talk about Al Qaeda and Bin Laden, they'd respond "Saddam Hussein and Iraq."  We had a chance to fight the terrorists and perhaps even crush a large part of Al Qaeda in Afghanistan in the fall of 2002 and we pulled back.  Somebody's got to account for that sometime.  It was a huge strategic mistake.  I think they were so transfixed and so obsessed with Saddam early on that they couldn't see anything else.  So it's not like he was just floundering around.  They had an agenda.  You could say, their imperial strategy for the Middle East was a plausible strategy.  Problem was it was never discussed with the American people and we are not an empire!  And we shouldn't be!

[We need to] restore the old Cold War alliances, namely with our friends in Europe and Asia, and that's going to take some diplomacy.  But I would think also to look at the 21st century as a totally new arena, post-Cold war, and think of what Harry Truman and Dean Acheson and George Marshall did in 1947 about new international institutions.  The first argument in my book is that security means more than just a war on terrorism.  Second, we can't achieve security in the broader definition, or even in the narrower definition, without our friends, without alliances.  There is no chance that America is going to be secure if the rest of the world is insecure. So I think we've got to look at the 21st century in the way Americans of the mid-20th century did and think about new international organizations. 

4/5/06: Air America: Franken interview with George Packer about his New Yorker update on Iraq

The New Yorker has come out with a fascinating article by George Packer who has just returned from a trip to  Iraq -- Talafar and Baghdad. 

Packer was interviewed at some length to today on Air America's Al Franken Show. What follows are some excerpts from that interview.

Whenever a unit has established relationships with local people and... bonds and develops knowledge of the city [Talafar] and is there in numbers -- because per capita there were probably more Americans in Talafar than just about any city in Iraq, and then leaves because their tour's over and a new unit comes in -- and even though there's a two-week overlap, inevitably they lose the the relationships that were formed.  The new unit doesn't know anything.  One aspect of counterinsurgency is that it takes months of patient work with meetings that seem inconclusive and that never seem to get anywhere for the outside forces to understand the place where they are and what it needs.  The key to counterinsurgency is not killing bad guys -- although there is some of that -- but protecting the civilians and establishing enough security that they can begin to form government and have an economic life and just live a semi-normal life.  That had begun to happen in Talafar.  It was a sort of qualified success story but because of the way in which the military rotates groups in and out of Iraq, the base of knowledge disappears with the unit leaves...

*

They were without any guidance from above, and it goes all the way up to Donald Rumsfeld.  They not only denied that it was an insurgency then, in 2003, but continued to do so even up until now.  Until very recently, his Chairman of the Joint Chiefs, General Peter Pace said on national television, "I have to call them insurgents because I can't think of a better word."  He said it almost sheepishly and Rumsfeld interrupted him and said, "Enemies of the legitimate Iraqi government!  How about that?" *I think you cannot overstate how much damage Donald Rumsfeld has done to the war in Iraq.  From the beginning.  From before the beginning.  From when he decided that he could ignore expert advice and go in without enough ground troops... We continue to pay the price for that.  But even after those decisions were made and we were on the ground in Iraq and local commanders were trying to send word back to him that a serious threat was taking shape in the form of insurgents who were taking shots at Americans, who were intimidating the Iraq population, and who were going to be a problem, Rumsfeld didn't want to hear.  And the reason he didn't want to hear it was because it didn't fit with his plans for the American military.  Which was easy in, easy out, move on to the next threat, and develop high tech weapons systems that will transform the nature of modern warfare.  It turns out modern warfare looks a lot like ancient warfare with kids in kafiyahs shooting AK-47's and making homemade bombs. That has been a bigger problem for the US military that any conventional army with submarines and aircraft.  But Donald Rumsfeld irresponsibly ignored that, suppressed the effort on the part of the military to come to terms with it, and we lost two years.

*

The sadness is this: because of the pigheadedness of leaders like Donald Rumsfeld, we have been brought to the point now where we face a really agonizing, almost paralyzing dilemma -- whether to stay or to leave.  If we stay, it's without any certainty that our efforts and our sacrifices bear fruit, though I think it still remains possible that over a long period, Iraq could consolidate a state.  The real problem in Iraq is that there's a failed state.  There is no center of power. Militias and gangs and insurgents have the run of the country.  But if we leave -- if we decide we can't throw good lives after good in the hope that we succeed -- I think Iraq is going to see killings on a scale that makes the present already extraordinary level of violence look rather small.  And that would certainly be on our hands because we would have left the country in that condition.  I don't see how announcing a departure date by the end of 2006 achieves anything.  If we're going to leave, why not leave now? If we're going to stay and do something, then why not stay until we feel we've done something. But I think the real problem is the American people have lost faith in our leaders...

*

Ambassador Zalmay Khalilzad whom I interviewed while I was over there and who I think is the best envoy we've had and who's working night and day to bring Iraqis to form a national unity government -- he said to me that his greatest concern is that the public will decide that their leaders -- that is to say, our leaders -- don't know what they're doing and don't have a plan to succeed, and the public will lose confidence.  And he said, "Happy talk is not going to do it."  So he was almost sending a message back to Washington, quite directly for an ambassador, that to overstate successes and to talk glibly about terrorists is to lose the public's confidence.  Because they've heard it before, they no longer believe it, they need to be levelled with, they need to be treated like grownups -- which is what I think Zalmay Khalilzad and Col. H.R. McMaster are doing.  The tragedy is we now have people on the ground who understand and are learning how to succeed.  To this day they do not have the full support of their leaders and the tools to do the job.

*

HR McMaster, the colonel in Talafar, wrote a very interesting book about Vietnam called "Dereliction of Duty."  He has a PhD. in History. It's about the failure of the generals, especially the Joint Chiefs of Staff to speak truth to power, to tell McNamara and Johnson that their strategy is going to fail when they knew it would fail.  I said to him, in Talafar, "Colonel, there are a lot of echoes of the Iraq war in your book."  Because I think you're right, Al [Franken].  Myers, Pace, Sanchez, Abizaid, Franks maybe above all, have failed the men under them by not speaking truth to the civilians above them.  McMasters said to me, "I can't touch that!"  He's in the chain of command.  He's not going to criticize his superiors but anyone who reads his book will be struck by how much we're reliving the failures of the generals during the Vietnam era.

*

[Al Franken reads from Packer's article:  "President Bush has always insisted that the turnover and drawdown will be conditions-based, governed by the situation in Iraq and the advice of commanders, not by a timetable set in Washington." But you doubt that?]  And Packer responds:  When you go to Iraq and just see what's happening there and you talk to soldiers and get a feeling for the atmosphere, what strikes you is how they are pulling back from the cities, from the lives of Iraqis, and how many of them talk as if the mission is nearing its completion.  One sergeant said to me, "We'll be here in some numbers for years, but the heavy boots-on-the-ground part is almost over."  And he said, "The US Army doesn't allow itself to fail."  And I said, "Look, Iraq does not look like a success, does it?"  And he said, "So you adjust the measurement of success."  What he meant was, For me, success is getting all my men home.  In other words, in the minds of sergeants like that and even higher officers I talked to, the idea of securing Iraq and creating a democracy there and staying long enough to make sure it happens -- they understand that's very unlikely. Instead, we're going to be down below 100,000 by the end of this year -- which is a number I heard from Iraqi officials, from American military officials. Senator Chuck Hagel of Nebraska pretty much agreed with me when I said, "This sounds like 'declare victory and go home.'"  A la Vietnam.

*

The [Administration] rhetoric is always about "resolve" and not being intimidated and "staying the course."  As if this were a test of the President's personal mettle.  While all around the effort is never as fairly backed up by the Administration as we have been led to believe.  For example, just today the Washington Post has a front page story that says the funding for democracy-building programs in Iraq is being drastically cut.  Some are going down to zero.  Which means, I guess, once they've had their last election in December, that's the end of democracy-building, rather than the beginning, as it ought to be!  So you look behind the rhetoric, you see what the effort is, the money, the commitment, and you find that they always seem to be more focused on winning the political fight here than on Iraq.  They think that if they can control the public's view of it here, they can control the war.  They don't seem to have learned that the war has its own logic.

*

I've been saying for a long time that [this administration never took this war entirely seriously] and the thing that breaks my heart -- understand the quality of some of the young soldiers in Iraq -- the ones I found in Talafar had been there for a year, had taken enormous risks, were deeply involved in the lives of Iraqis, working with Iraq soldiers on a daily basis. They knew the names of their Iraqi counterparts' children, they brought gifts to them when they came back from leave, they wept when they said goodbye.  Some of them didn't even really want to leave.  That kind of heart and effort -- and learning, because a lot of them admitted that they'd made huge mistakes during the first two years of the war and had learned from those mistakes -- you can't help but be moved by the human side of this war.  Not just the suffering but the commitment to it.  And to feel that they are not being fully backed and that their effort may be in vain because of the folly of their leaders is almost more than I can stand at times.

*

The other part of the [article that I wrote for the New Yorker] is set in Baghdad where no one is in control except militias, gangs and insurgents and police who act like militias.  In Baghdad, everyone is afraid of everyone.  The city is being ethnically cleansed and barricaded.  People are moving to neighborhoods where their group predominates because they feel safer there.  Everyone is looking for someone to protect them and they have to turn to a militia because the Americans and the Iraqi government won't do it.  That's what they'll do.  That's how civil wars begin.

3/31/06: New America Foundation: Philippe Sands on the Bush administration, Downing Street memo, Iraq war, and international law (Part 1)

3/31/06:  New America Foundation:  Philippe Sands:  "Lawless World: America and the Making and Breaking of Global Rules"    (Part 1)

Philippe Sands "has been involved in many of the recent high profile cases in the World Court and elsewhere. He has represented the interests of the British detainees at Guantánamo and the efforts to extradite Augusto Pinochet to Spain and has written for the Los Angeles Times and The Washington Post, taught at New York University and Boston College, and appears regularly on CNN and the BBC."

Host:  Steve Clemons.  Clemons is the director of the American Strategy Program for the New America Foundation, and tends the lively blog, Washington Note.

Transcriber's note:  The talk and a subsequent discussion are about two hours long.   A few organizational and personal comments from Steve Clemons'  introduction and afterwords have been cut in the interests of time and space (and typist's wrists!)  The second half of the session -- the questions and discussion -- will be available in "Part 2."  For the convenience of readers, I've added links where I thought they might be helpful.

Steve Clemons:  ... I began writing about Philippe Sands and his important contribution, particularly some remarkable material that he surfaced in this important new book, "Lawless World: America and the Making and Breaking of Global Rules."   

...  Philippe Sands, as many of you saw on the front page of the New York Times earlier this week, has found and surfaced very important memos that show, in conversations recorded by David Manning, the current British ambassador to the US, conversations between Tony Blair and President Bush indicating in January of 2003 that America and Britain were on the course to war -- regardless of diplomatic outcomes -- with Iraq. The day I think they had selected was March 10th... It's not like we didn't know that was out there [laughter] but it's fascinating to see it on paper, in notes of official conversation.  Those notes and knowing what the empirical reality is finally telling us.  I don't know why Philippe's not in jail -- I'm sure he'll tell us!  Because in Britain surfacing these kinds of things is a complicated affair.  Phillipe Sands is an international lawyer, professor of law at University College London, a practicing barrister.  I understand he was elevated to a position of Queen's Counsel in 2003, is that true?

Philippe Sands: ... That means I'm her personal lawyer!

Clemons:  That's her personal lawyer -- you play bridge and check in once a week? 

Clemons:  He has previously held academic positions at the University of London School of Oriental and African Studies, at King's College, Cambridge, Boston University, NYU.  He's been involved in many of the recent high profile cases in the World Court and International Court of Justice including representing the interests of the British detainees at Guantanamo, the efforts to extradite Augusto Pinochet to Spain.  He frequently advises governments and international organizations... He writes frequently.  He's also here at a very opportune time because of course this week in the Supreme Court we had oral arguments against the constitutionality of the secret detention centers.  So I am very much looking forward to hearing what Philippe Sands has to share with us today... We'll have an active Q & A and discussion after Philippe's done.  So please help me welcome Philippe Sands.

Sands:  Thank you very much, Steve, for the introduction and to the New America Foundation for inviting me.  What I propose to do is to speak maybe for half an hour introducing, generally, the book as Steve has asked me to do, and then to move gently into the topics I think you actually want to hear about, talk and ask questions about.  I'm very grateful to you for the excessively generous introduction.  The QC thing is a real cause of friction in my family.  As some of you know, I'm married to an American who is firmly republican and thinks it's outrageous that I should have accepted any sort of offering that has the name of the Queen on it! 

Britain is, of course, a very curious country.  Those of you who have read parts of the book will know that one aspect of the latest edition that has come out and seems to go on interminably is a discussion of a conversation between our esteemed Lord Chancellor, Lord Faulkner, who played a certain role in persuading the Attorney General of Great Britain, shall we say, to change his mind in the rather equivocal advice he gave under the guaranty of the war on the 7th of March to the completely unequivocal to the "it's totally legal, definitely, Tony!" just ten days later.  And I notice in the latest edition of the book that when Lord Goldsmith did actually change his mind having been hauled in by Lord Faulkner.  Lord Faulkner was "very surprised" that he actually changed his mind. 

I put that in the book -- I hesitated a little as an academic, as a barrister, I need to make sure that every one of my facts is verifiable, if not by footnotes with material stocked in some part of the world.  But nevertheless, I had three sources for that so I put it in.  Reliable sources:  judges, senior lawyers, etc.  I thought, I'll put it in. The book is published in the UK -- that edition of it -- in February of this year, 3rd or 4th of February.  The day after it's published, I come home and on the kitchen table is a letter from Lord Faulkner, the Lord Chancellor's Department, sort of lying there. I'm thinking, "That's it. He's thrown a cannon over at Hampstead to complain about what I've done in the book. I open the letter gingerly and inside is a letter which reads, "Dear Mr. Sands, On behalf of the Lord Chancellor..."  (I pause)... "we wish to know whether you would be minded to accept an invitation to the Queen's garden party this summer."  [laughter] 

It's a wonderful country that I live in that you can write a book causing potentially deep political embarrassment to a senior Cabinet Minister, and he invites you to the Queen's garden party!  I think it says a lot about political culture and political debate in Britain today that we have been able to engage for now fifteen months at least -- but that much longer -- on a very painful and very difficult debate about the post-9/11 situation, about the detentions at Guantanamo, the torture issues, the question of Britain's role and complicity in those issues, and, of course, most powerfully and painfully of all, the war in Iraq in which Britain has played a very large role and to which I will come back. But unlike this country where I spend a lot of time because of my American family, there has been a vigorous debate. 

I've noted in this country that there has not been a debate.  In part the book was prompted by that fact.  It's been brought home to me, I must say.  The reactions in Britain and America are very different, and it's only now, perhaps only this week with the New York Times piece which came out coincidentally on Monday in which a diligent New York Times journalist finally began to dig away.  More significantly the New York Times seems to have taken the view that it is now politically opportune to place an article about these subjects above the fold, as one person put it to me, on page one.  That didn't happen fifteen months ago or six months ago or three months ago.  Something has changed.  I've noticed that even this week in the nature of the questions I'm being put by journalists on issues of the post-9/11 situation.  Let's come back to that in due course. 

Let me just begin by saying a little big about what this book is about.  I'm an academic and a practicing lawyer.  So my intention in writing this book, which was an idea that emerged after the war in Iraq, was really to provide a response to the sustained attack that I saw happening on the rules of international law that the US had done more than any country to put in place in a period after the Second World War.  And to do so because I felt the laws were seriously at risk. 

There was something qualitatively different about the administration of George W. Bush.  There had been, of course, other episodes in America's long and distinguished history of diplomacy, moments of exceptionalism, moments of isolationism, moments in which a president is unable to get past Congress ratification of an important treaty if one goes all the way back to the period of President Wilson.  But this was qualitatively different.  Because what was happening now as that the attack was premised on the belief that, contrary to the situation that had prevailed in most of the Cold War period where rules were seen as promoting American values, rules were now seen as imposing unnecessary restraints on the exercise of American sovereignty and exercise of American power.  I wanted to trace how that happened. 

The story of this book begins at a remarkable meeting that I had not been fully aware of, and not really looked at. It took place on the 8th of August 1941 off the coast of Newfoundland between President Roosevelt and Prime Minister Churchill when they drafted a document called the Atlantic Charter -- which some of you may have come across.  I had vaguely heard about it. 

It's just a one-page document.   I've put it right at the front of the book with Winston Churchill's handwritten scrawl.  It was a difficult document for the two of them to draft because they were coming at the issues of the new system of global rules from a very different perspective.  In a nutshell, what the Atlantic Charter did was posit the idea after the Nazis had been vanquished and in the context of an emerging Soviet threat, to develop a global rules-based system which of course hadn't existed in the period before the mid-1940's. 

Before the mid-1940's, states were entirely free to use force unconstrained.  They were entirely free to torture their own citizens, to kill people in very large numbers, to a certain extent to treat prisoners of war with relatively barbaric conditions.  And Roosevelt and Churchill... said "We're going to change that."  They did it, ultimately, with a lot of other states, but the simple message -- and it wasn't an altruistic message -- was, "We are going to build a rules-based system." 

A rules-based system built on three fundamental pillars.  The first pillar is the new set of rules prohibiting the use of force in international relations except in exceptional circumstances.  And those of course were incorporated into the UN charter, in Articles 2 (4) and Article 51.  

Secondly, a new set of rules promoting the fundamental dignity of the human individual, the modern system of international human rights law and the modern system on the rules of self-determination -- which of course Roosevelt was using to undo the British Empire, to undo the colonies, and which Churchill and Lord Beaverbook, his principal adviser, were extremely alert to. 

That was the second set of rules. And the third fundamental pillar was the pillar of global economic liberalization.  It's pretty remarkable and far-reaching that even in 1941 they were putting in place the system of free-trade rules and the rules that would become fundamentally important in protecting intellectual property rights, foreign investment protections, and so on and so forth. 

So, three pillars:  force, human rights, economic liberalization.

In the eight or nine years that followed that period under the presidencies of Roosevelt and Truman -- and ultimately of Eisenhower -- and the premierships of Churchill and Atlee, there was a remarkable -- a truly remarkable -- period of global lawmaking when the modern system of international rules was put in place.   The UN charter I've already mentioned.  The Nuremberg Statute creating the notion of an international criminal law.  The General Agreement on Tariffs and Trade of 1947 creating a globalized system of free trade.  The Geneva Conventions of 1949 codifying emerging rules of international law.  One could go on and on with the list. 

It was, I think, by any standard, a remarkable period of international law-making, and one which was driven fundamentally by the vision of the US.  But for the US, we would not have had this system of global rules. Of course, many other countries played a hugely important role, but one has to recognize the hugely significant and positive role that the US has played.  And, warts and all, for about forty years, there was a broad consensus as to a need for a rules-based system. 

I'm not starry-eyed about international law.  I don't for a moment believe that the rules are somehow going to eradicate all the wrongs of the world, rule out the use of force, rule out atrocities and so on... But they provide a relatively objective, independent means for assessing the legitimacy of certain actions and have assumed, in that regard, an important role.  Nor am I starry-eyed about the motivations.  It's not that Britain and the US were generally out to do good for the world.  They were out to do good for themselves.  They saw rules as promoting values.  They saw rules as promoting opportunities.  And that's fine.   I think there is no difficulty with that at all.

The system trundled along more or less unchallenged for about forty years.  Then in the 1980's, a small group of individuals in the Reagan administration, individuals whose names we're now very familiar with -- Rumsfeld, Cheney, Wolfowitz, et al. -- began the process around, catalytically, the case of Nicaragua vs. the US in the International Court of Justice, of rethinking actually whether these rules did serve American interests. 

In the period when they were out of office, during the Clinton administration, they coalesced around something that many of you here are more familiar than I am with, the Project for the New American Century, which articulated the proposition that rules did not promote opportunities for the US, they imposed unnecessary constraints.  They imposed unnecessary constraints in relation to the exercise of military power and in relation to other social objectives and political objectives being pushed by the US.

Not all rules in international law were bad, however.  It's absolutely wrong to consider that the individuals who are now so closely associated with the inner workings of the Bush administration think that all international law is bad.  There is good international law:  the rules that promote free trade, the rules that promote economic rights, the rules that promote intellectual property -- the rules that basically make America's economic domination in so many areas function very efficiently and very well.  That's the "good international law."  The "bad international law" is just about everything else:  international law that limits use of force, the international law that imposes constraints in terms of fundamental rights.  This is international law, as one friend of mine puts it, is "international law for others," it's not "international law for us," it's not "international law for Americans." 

Of course, with the coming into power of the Bush administration in January 2001, these individuals jumped from behind the scenes activism into positions of serious power and authority.  And they didn't hesitate to put that into effect.  I, with some trepidation in this part of what is necessarily a very truncated, perhaps overly simplistic account, defer to the Washington community that is much closer than I am to what has actually happened. 

From an outsider's perspective, it was clear, very early on, what was going on.  Many of the global rules that fell within the sort of "bad" international law paradigm were consigned to the wayside.  The Kyoto Protocol  was unsigned.  The International Criminal Court was unsigned.  The US walked away from negotiations, ironically enough, on biological and chemical weapons.  All of this before 9/11. 

Then 9/11 came along.  But even before 9/11, the project that basically ditched the many rules that were no longer seen to serve interests was well underway.   9/11 comes along and it's like manna from heaven.  9/11 is an opportunity to basically mount a systematic assault on a whole raft of international laws that had already been targeted by these individuals in the period during the 1990's and even earlier. 

I happened to be in New York on 9/11.  I was teaching at NYU, and so I saw first hand with my own eyes what happened, and it was obviously a horrendous day and a deeply shocking day at many levels.  But I don't think it justifies what has happened.   I don't think it justifies the kidnapping of that day and its use for blatant ideological purposes.  Namely to remake and refashion the global order in a new image. 

We now know, because a lot of material has emerged that the role of the lawyers in assisting in this transformation was vital.  Decisions were taken in the first hours -- literally, we now know -- after 9/11 to determine the conditions of the response to the attacks in Washington and in New York.  Decisions were taken immediately with, it seems to me, very little consideration of the consequences, to declare the response a "war on terror."  That's very important because that shifts the response into the paradigm of international humanitarian law and a certain set of rules that limit how you conduct your response. 

But even more significantly, it says that the ordinary rules of criminal law do not apply.  I think that decision was a catastrophic misjudgment.  It's perhaps because I've been influenced by what's been happening in parts of Europe, in Spain with ETA, in Britain with the IRA.  The moment you characterize people who've been engaged in these acts as warriors rather than criminals, you are elevating their status and you are making it far more difficult to prosecute a response in terms of bringing allies on board.  It's much more difficult, for example, to bring allies from the Muslim world on board when you're prosecuting a war rather than implementing international criminal cooperation because one Muslim country doesn't like to declare war on another Muslim country, or to use the language of war.  But that, it seems, was not thought through. 

In the context of the "war on terror" (and Europeans simply don't use that phrase) it's been very difficult for those on the far right in this country to attack me on my book because it's patently obvious to anyone who reads the book that I'm extremely well disposed towards the US and take as my starting point that the US has generally been a very positive force for good in the world.  What they attack me on, for example, is putting the words "war on terror" in quotation marks wherever it appears in the book.  That's about as far as the intellectual rigor of their attack seems to go.  But it's had important consequences. 

We now know that a decision was taken very early to identify a place where non-US nationals could be detained essentially in a legal black hole, as the English court of appeal put it in a famous case.  That is what became Guantanamo.  We know the decisions were taken to say that certain individuals would be stripped of any rights they might have under international law in relation to their treatment and conditions of detention. The Geneva Conventions would not apply because they fell into this wholly new, previously unknown, category of "unlawful combatants."  We know that advice was given -- ghastly legal advice -- on why the torture convention didn't apply. It didn't apply because in times of war and armed conflict, the president essentially had an executive authority to do whatever he wanted to prosecute a response to the "war on terror." 

Now, you don't need to be Einstein to pause and think what the consequences of other countries doing that means!  If every country's domestic law can be invoked to say international rules no longer apply, then every country is free to do what it wants to its response to a perceived threat.  Iran would be entitled to say, "Our domestic law allows us to take Americans hostage, contrary to our obligations under the Vienna convention on diplomatic and consular relations because we find ourselves at a time of dire national emergency."  It doesn't take more than 0.03 seconds to work out what the consequences of that type of approach mean.

Nevertheless, it seems that no thought was given to all of those consequences. I believe that those actions, policy decisions, and legal advices have led seamlessly to the images that emerged at Abu Ghraib and to the allegations -- some reasonably well founded, some as yet unfounded -- in relation to detention at Guantanamo, at Bagram, at Abu Ghraib, and elsewhere.

Then, of course, we come to the main thing that I want to talk about, but I'll leave most of it for questions because I suspect that's what people will want to focus on.  And that is the issue of Iraq. 

We know now, also, that a decision was taken very early in relation to the situation in Iraq. We know there are memoranda from Donald Rumsfeld in the hours after 9/11, "Can we use this to go against Saddam Hussein?"  We know from what the former Treasury Secretary has said that as soon as they were in office they were already talking about getting rid of Saddam Hussein.  At a political level, getting rid of Saddam Hussein may indeed be a very good thing.  It's not that, per se, that is the problem.  The problem is how it has been implemented -- and the timeline. 

The story that I tell in the book, and it wasn't intended as a book to address anything beyond the issues I've just described, in chapters dealing with the Pinochet case in London which I had a certain role in, with climate change and Kyoto protocol (I'm really pleased to see Marianna Ginsburg here!  She and I worked on this for more than fifteen years...), the issues of free trade, issues of foreign investment protection -- all of these are dealt with in individual chapters.  Then I get to the post-9/11 situation, the torture issues, the Guantanamo issues and then, finally, Iraq. 

It seems to me that Iraq has come to symbolize everything that has gone wrong in terms of the legality of the decision-making and the competence of decision-making.  The story that I tell, I think, now emerges as a simple one and the material which has come before my eyes and which I have revealed at various stages in various editions of this book I think is striking only because it confirms what many people suspected.  In a certain sense, there is nothing surprising in the material.  When we were speculating as to the rationale and the decision-making and why were they doing it and how they were going about doing it -- we sort of knew that this was policy-making on the hoof.  We sort of knew that this was not decision-making that had been subjected to the type of rigor and process that we would expect the governments of two countries like the UK and the US to get involved with. 

And that story that emerges I think is this:  President Bush decides very early that he's going to get rid of Saddam Hussein.  Wisely, to give him credit, he realizes that he can't do it alone.  He identifies potential allies and he spots amongst one of them a young English barrister by the name of Anthony Blair whom he doesn't know that well but whom he sees as a potential ally. 

I'm afraid I don't have very high regard for the abilities of Tony Blair in terms of substance.  I think he's an absolutely terrific politician, but I think he's pulled the wool over all of your eyes, particularly in the US.  It's the source of enormous amusement to us, to many of us in Britain who voted for Tony Blair first time around, that he is feted and honored as a statesmanlike figure.  There is no there there!  [laughter]  There's no substance!  And this is an individual who is, it's abundantly clear from the materials I've seen, driven by a severe attention deficit problem, an inability to deal with the details and the consequences of decisions that are going to be taken. In my mind, that is the most shocking thing that has come out of the material that I've seen -- the absence of attention to important points of detail.  I'll come back and say a bit more about that.

Tony is brought over to Camp Crawford, has a conversation with the President, March-April 2002, and we know from yet another leaked David Manning memo that Tony is by March 18th 2002 on board with a regime change, but we can't call it that.  We're going to have to find some way of dressing it up... It's going to have to be presented for the public, the press, and the Parliament in a different way.  And what is conjured up, it becomes clear from the Downing Street memo  -- but also from public statements of the President and the Prime Minister, is a plot, if you like -- not to characterize it too negatively -- to present it as elimination of "weapons of mass destruction." 

That provides a legal pretext because some crafty lawyers have come up with the idea that, if we can make the argument that Saddam Hussein is in material breach of the resolutions that brought into effect a ceasefire in 1991 from the first war in the Gulf...  If we can show he's in breach of those resolutions, we can decide to use force against him on the basis that he's in material breach.  But we have got to first establish that he has weapons of mass destruction that he shouldn't otherwise have. 

And that explains what happened in the period, particularly leading up to Resolution 1441 in November of 2002 and the efforts by the British and American governments to persuade the populations that Saddam Hussein had weapons of mass destruction. 

I was already a conscious adult at that moment so I read the materials myself, formed my own view, and at not time was persuaded that Saddam Hussein had weapons of mass destruction.  I accepted there was a strong possibility that he did have them.  And instinct suggested that he must have something since he'd been sold all this chemical stuff by the US and by others in the 1980's.  Therefore some of it must still be there. 

But from a legal perspective, one wants some evidence at least, some hard evidence at least, that something is there.  Resolution 1441 is adopted and it provides Saddam with one last chance.  Of course the project is to get the UN inspectors in so that they can find all this WMD that is allegedly out there.  But the problem emerges pretty early on.  In December, Saddam gives an account of what he's got and surprisingly it's rather fuller than people had expected. It's not perfect, far from it. There are gaps and there are lots of questions about it.  But there is rather a lot of information to trawl through. 

The inspectors go in -- Mr. Blix and Mr. el Baradei  -- and by early January, from the material I've seen but which has not yet made its way to the public domain, it's clear that in London at least there is a sense of serious concern if not panic that the project is going to unfold because nothing is going to turn up.  I refer, in the new edition of the book, to conversations between Colin Powell and Jack Straw which indicate quite clearly that Colin Powell had no expectations that WMD would be found, that indicate quite clearly that Jack Straw had no expectations that WMD would be found.  And then of course we come to the memo of the 31st of January 2003 which I've had a limited number of extracts and which the New York Times has now got rather more extracts, and more significantly has confirmed through two British senior government officials that the materials are indeed authentic.  That, I think, is very significant about the New York Times piece.

Why is the memo of the 31st of January 2003 significant?  It's significant, I think, for three reasons.  Firstly, it confirms absolutely unequivocally that the decision to go to war had been taken by the US president by the end of January 2003.  When Scott McClellan said on Monday after the New York Times was published that it was inaccurate, that it was only taken in the period beginning in March, that is absolutely untrue.  I don't like to use the "L" word -- I'm a barrister!  I have to have decorum!  I can't accuse those sorts of things! [laughter] -- it's absolutely clear the decision was taken. It's clear also that the British Prime Minister had lent his support.  That was crucial for the President because he knew he was not alone.  He knew he could rely on Anthony Blair.

Secondly, the memorandum is significant because it makes it abundantly clear that there is no evidence of weapons of mass destruction.  To give both President Bush and  Mr. Blair credit, there is clearly a belief that weapons of mass destruction are located. A number of people have asked me, "Don't you think they were just making up the whole thing?  Even their argument and the belief that there were weapons of mass destruction?"  The answer to that is no.  It's clear from the material that they appear to have genuinely believed there were WMD. But they were faced with the difficulty of having nothing more than instinct. And they recognized that instinct and belief may be ground for many things, but not grounds for going to war.  That caused a problem, and that is precisely why, in that context, President Bush puts to Prime Minister Blair, the idea of taking US spy planes, painting them in UN colors, flying them over Iraq, and when Saddam Hussein shoots at them, he will bring himself into material breach such as to justify the use of force.

Just pause for a moment.  If you are sitting on evidence of weapons of mass destruction, why do you have that conversation?  You don't have that conversation. You don't talk about the possibility of bringing out defectors who might hypothetically have more information, and you most certainly don't have conversations about assassination of foreign heads of state however ghastly they may be as individuals.  And that's the second element:  it's absolutely clear, in the light of that memorandum, they knew they weren't going to find any evidence of WMD through the inspections and they knew they didn't have any WMD evidence of their own.  Bear in mind this was five days before Colin Powell went to the Security Council to unveil, famously, all of the evidence the US had in relation to this issue.  It indicates quite clearly the paucity of intelligence material that was being relied upon. 

Thirdly, the memorandum is significant because it indicates the sheer incompetence of the decision-making process.  President Bush is described in the memo as telling the President [probably means the Prime Minister] who plaintively asks, Have you thought about aftermath planning?  The response is, Yes, we have.  We're going to make sure there's plenty of food around and we're going to fix the electricity pylons and the oil supplies that have been bombed, but I don't expect there'll be any internecine strife between the different religious and ethnic groups. 

Now, again, pause for a moment.  This is the President of the US and Prime Minister of the UK talking about, in incredibly glib terms, what will happen after the war has been successfully prosecuted.  As the New York Times article makes clear, a great deal of the material that goes to how many targets there are going to be, how long it's going to last, how many... etc. etc., a passing reference to aftermath planning.  Mr. Blair is just silent.  He doesn't say, as we know he had been advised by the relevant people in the Foreign Office, that if you go down this route this is what you can expect. 

Go and read the evidence before the House of Commons Select Committee on Foreign Affairs of Lord Wright, former Permanent Secretary  of the Foreign Office in October 2002   where he sets out in detail what is going to happen if this is prosecuted without adequate support or preparation.  And he describes, along with the former British Ambassador to Baghdad, Sir Harold Walker, precisely what we are now seeing.  Mr. Blair got clear advice about it, and we also know from the State Department that President Bush got exactly the same advice from people who know.  All of that advice was put on one side and was not taken into account.  That, it strikes me, raises fundamental issues as to competence and fitness for public office when you are engaged in so important a decision as to occupy a foreign country knowing in that part of the world what the consequences are likely to be.

So all of that has emerged. I haven't taken you into the area of discussion concerning the rather specific-to-Britain subject of the circumstances in which the British Attorney General was caused, if you like, to change his mind following a visit to our good, neutral friend, the present State Department legal adviser who, I report in the book, as having been visited by one British official -- "We had trouble with your attorney but we got him there eventually."  They got him party of the way, but they didn't get him all of the way, and that's what's caused him and the UK considerable difficulty and, of course, degraded confidence in Britain. 

To wrap up, before we move into some questions and some discussion, global rules matter. Global rules have served the US which has been a leader for five decades.  And I think global rules have contributed in very large measure to America's preeminent position in the world.  What the events of the last four years have shown is that large, powerful states can take certain decisions in relation to global rules but those decisions are not cost-free.  The decision to suspend the application of certain global rules, whether in relation to torture, or in relation to the treatment of detainees, has severely undermined America's authority around the world. And that at a time when there is a fundamental threat from certain forms of terrorism and from certain countries who, in violation of their treaty obligations, wish to obtain atomic bombs, is, I think, a serious problem. 

In a sense, the book is a plea for the US to resume the position that it has previously taken.  And it's a plea that is made premised on the belief that if the US doesn't do it, no one else is going to be strong enough to do it.  If the US abdicates the rule of law internationally, we are all in very, very deep trouble.

End of talk.  Discussion follows.