Thursday, May 23, 2013

Dead Aid, by Dambisa Moyo - A Free Market Apology for African Poverty-Related Deaths

By Bub,

    In Dead Aid, Dambisa Moyo attempts to draw a causal connection between aid and the lack of development in African states.  She follows these attempts by offering alternative policy prescriptions consisting of a menu of free market based solutions that are meant to reverse the decades of economic, political, and social damage alleged to have been done by aid.  Moyo’s attempts to draw a causal connection between aid and lack of development are controversial and intriguing, but ultimately fail.  Her policy prescriptions offer a mixture of innovative thinking and free market optimism that are both hopeful and dangerous.  Moyo supports her arguments by meandering between research studies, case examples, simple anecdotes and a priori reasoning.  This makes for vibrant and compelling reading but it leads the arguments to bump up against each other in contradiction along the way.  Dead Aid succeeds in part in its stated purpose of figuring out “how to finance the development agenda so that, whatever the development policy, economic prosperity might be realized (2009, p. 72)” by offering free market ideas tailored to the current African economic landscape.  Indeed any developmental fortune reversal for Africa will no doubt involve some if not all of Moyo‘s non-aid-related financing proposals.  But it falls short of offering a comprehensive guide to solving African developmental problems because it ignores the possibility, and increasingly the reality, of aid playing a major role in creating, and facilitating these and other innovative solutions.

    Dead Aid lays out a host of urgent problems that Sub-Saharan Africa is facing: poverty is rampant and increasing with per capita income around US$1 per day; economic growth rates are abysmal and stagnant or decreasing; life-expectancy in the region is going down, along with adult literacy rates;  tyrants rule, with half of Africa under non-democratic rule, and eleven civil wars waged in Africa over the past twenty years (Moyo, 2009, p. 4-6).  All of this grief is occurring in spite of aid being given to African states at unprecedented levels.  For Moyo, the grief caused is not in spite of aid, it is because of it.  And it, aid, needs to end.  Moyo acknowledges the fact that many scholars proffer different possible causes for Africa’s development woes, and that many others cite examples of aid working well,  But she proceeds to dismiss them without careful consideration of their plausibility.  She also altogether avoids the possibility of any mitigation of aid’s blameworthiness due to these acknowledged factors and examples.  This gambit fails because what Moyo gains in rhetorical cohesiveness she loses in credibility within the first three chapters.

    Her singular focus on aid as a catchall cause of Africa’s problems is, in its veracity, admirable.  But when presented as a legitimate argument for ending the vast majority of current aid to developing countries, it becomes over-simplistic and ineffective.  Moyo blames aid for everything in Africa from inflation to civil war, and even for undermining the element of trust in African societies.  The case for addressing the problems presented in the book is made convincingly.  Corruption; conflict; a lack of, or serious flaws in, basic governance institutions; these problems all permanently handicap African nations (to each a different degree, but overall to a large extent) in the absence of serious efforts aimed at ameliorating them or catalyzing them from their current inert state.  Aid is part of that inertia, but aid does not cause it.  Aid is not the primary cause of any of these problems.   And aid is being used to combat these all of these problems.

    Aid is (and in the Bretton Woods era always has been) evolving.  Mechanisms have been developed to help aid do everything from protecting human rights to preventing disease, and combating corruption.  The picture of aid that Moyo rails against is not reflective of current aid realities.  She acknowledges innovation and progress that has been made in aid policy over recent decades, but then argues against a one-dimensional caricature of aid in contradiction of that acknowledgement.  Moyo allows for intellectual flexibility when addressing her proposed free market solutions to African development problems in order to circumvent practical roadblocks, but she does not entertain the same possibilities for aid.  Aid is dead and it needs buried, Moyo intimates, but laissez-faire policy reminiscent of colonial exploitation is worthy of resurrection.  China will invest without imposing burdensome safety or environmental requirements, so let them.

    Some of Moyo’s proposals have real merit.  Micro-finance and is already underway transforming the economic landscape not just of Africa but of all the developing world.  Capital markets and free trade offer theoretical opportunity along with foreign direct investment but they also have downsides that would seem to dwarf any legitimate concerns over aid.  Remittances and savings have real impact on families in Africa and the developing world and they present a range of economic possibilities.  If her prescription pans out as anticipated, Africa will be in a much better place when it does.  However, Moyo’s ideological free market bias blinds her to possible pitfalls of her plan that would leave Africans susceptible to the same problems she currently blames on aid - from corruption and poverty to loss of sovereignty.  Thoughts of Moyo‘s former career as a Wall Street financial consultant are evoked by the callousness of some of her anti-aid arguments.  If Moyo’s prescription does not pan out as intended, incredibly serious consequences could result.  Without aid millions of people might die.  This is a risk Moyo seems too eager to take.  She argues that her eagerness is due to the gravity of Africa’s economic situation; that Africans have nothing of real value (including their lives) left to lose.  Such a stark characterization feels stilted and suspect coming from someone in Moyo’s station of relative comfort.

    Calls for such drastic measures made so casually raise questions about the possible willfulness of the previously mentioned blindness.  Is Moyo, not aid, the wolf in sheep’s clothing?  She has little reservation about imbuing Western donors with malicious motivations.  Does she harbor any herself?  It is a question that should be asked.  Is Dead Aid a clever ploy to convince the public of the moral necessity to end aid and turn its clients over to multi-national corporations?  Or is it trying to convince unwitting African leaders, who Moyo describes almost uniformly with disdain as myopic and corrupt, to eschew aid but retain Washington Consensus conditionalities for the good of their economies?  If it is, according to Moyo, it would be unnecessary.  Moyo points out that Western aid may be headed toward a precipice as Western nations struggle to cope with economic turmoil and are distracted with military engagements in Asia.  Democracy is on the rise in Africa and globalization continues to pervade.  Dead Aid hints that free market and institutional reforms, as well as an end to aid as we know it may be inevitable.  I do not believe that Moyo views these changes as inevitable (if so, why waste time writing a book to champion them?), but I do accept her sincerity in believing that they are necessary.  They are in fact neither.  Dead Aid’s value in the contemporary aid conversation is its injection of passion and controversy that has  inspired continuing dialogue about improving aid.  It urges one of the many possible paths to take at a potential crossroads after decades of policies of which have achieved only limited success at best.  Moyo’s path is to end aid in five years (decrease it down to 5% of GDP that is), forcing African governments to jump start market forces with policy reform in order to raise the necessary replacement revenue.  Africa will succeed, according to Moyo, only when you give it freedom to fail.  Why, we might ask, would she deny Goldman Sachs the same freedom?

    Moyo declares that aid is not working.  Africa is the perennial recipient of aid.  African economies and states depend on it, and bend to its demands.  Moyo asks why are African countries in such precarious financial situations to begin with?  One possibility is that economic fortunes are determined by geography.  Some states are endowed by nature with abundant resources.  Some states are not.  Those that are not face the challenge of not having enough resources to grow their economy.  But those that are naturally graced with resources face challenges too.  The ‘resource curse’ affects states with a wealth of a natural resources.  Resource deficient states do not have the luxury of imprudence.  Resource rich states find their leaders flush with cash which for Moyo makes them susceptible to thievery, corruption, and poor investment.  Climate and terrain also have some determinative impact on a state’s economic condition.  Some states can grow crops, others are pure desert.  Some states are landlocked, accessible only by mountain routes impassible for months out of the year, others have abundant coastline.  These features can give states advantages or disadvantages.  Some scholars such as Jeffrey Sachs argue that Africa is disadvantaged in this regard.  Factors present in many African nations such as malaria prevalence and physical isolation (such as landlocked at high altitude) greatly increase transaction costs for capital investment (Sachs, 2003) leading to poor economic growth.  Moyo retorts that Saudi Arabia is hot, and Switzerland is landlocked at high altitude and yet they are able to thrive.  Disadvantageous geographical factors such as those pointed out by Sachs can hamper a states ability to develop without assistance.  There are examples of states that have overcome such challenges, but it was not by grit and determination alone as Moyo implies.  Cameroon does not have the oil reserves or coastline that Saudi Arabia has nor does it have the regional economic integration and historically advantaged location of Switzerland.  Cutting off aid to a nation facing those challenges, in addition to not having a physical infrastructure in place would amount to an insurmountable blow rather than a genial prod to pull on one’s bootstraps.

    Other factors, many deriving from the legacy of colonialism, are entertained as possible causes of Africa’s development trouble.  Much ethnic conflict in Africa today can draw its roots to demographic fragmentation resulting from arbitrary political partition by European powers centuries ago.  Enduring colonialist attitudes of racism and paternalism cause and purport to explain the retardation of African development.  Alternatively, the imposition of foreign institutions of governance on cultures not conducive to the manner of societal structure imposed is also given as an excuse for the failure of African institutions.  Whatever the reason for poorly functioning institutions, their effect is a poorer economy.  Rodrik and Subramanian assert that “an increase in institutional quality can produce large increases in income per capita (Rodrik & Subramanian, 2003)”.  States without quality institutions lose out on that increased income.  Some scholars, like Moyo ally William Easterly, blame Africans for this loss for allowing the existence of ‘bad governments’ against whom apparently not enough courageous dissenters have fought yet to overthrow (Easterly, 2009).  The complex web of causality is hard if not impossible to disentangle.  Moyo does not waste much energy on such an effort.  The fact that institutions are important to economic growth is widely accepted across the ideological spectrum from Sachs, to Rodrik, to the multilateral lending institutions, to Easterly, and Moyo.  The disagreement is typically over exactly how much importance it has to growth.  Moyo believes that markets are key to improving institutions in Africa.   According to Moyo, in order to engender market solutions and improve institutions you must first end aid.

    Moyo argues that aid does not work.  Aid proponents that point to various examples of aid working are countered by Moyo explaining how it was not aid that provided the exemplary results, or at least it was not the kind of aid that she is talking about.  The Marshall Plan is probably the most touted example of a successful aid program.  Unprecedented amounts of aid were sent by the U.S. to rebuild Western Europe after WWII.  Given that Western Europe is again a preeminent world economic power the Marshall Plan seems on its face an aid success story.  Not so, according to Moyo, not in the way that aid is delivered to Africa today. 

    The Marshall Plan made up a small share of recipient nations’ GDP (2.5%-3%) when compared to the more significant share of African GDP made up by aid today (15%) (Moyo, 2009, p. 35).  Also, it was finite in duration with an express five year period stipulated from the beginning.  Africa’s stream of aid according to Moyo has been ‘constant and relentless’ (Moyo, 2009, p. 36) which has eliminated incentives for long term financial planning by African leaders resulting in, among other injuries, institution impotency.  Europe had functioning institutions before the war.  The Marshall Plan was in effect an effort to rebuild institutions that were already once in place, not to build functioning institutions out of non-functioning institutions.  Lastly, Moyo points out that the Marshall Plan mainly targeted physical infrastructure, in contrast to Africa where aid “permeates virtually every aspect of the economy… The more it infiltrates, the more it erodes, the greater the culture of aid-dependency (Moyo, 2009, p. 37)”.

    International Development Association ‘graduates’ are another famous example that aid proponents use to demonstrate aid success.  Countries formerly dependant on aid such as Chile, China, South Korea, Turkey, and Thailand have ‘graduated’ from their aid dependency to the thriving developed economies that these countries enjoy today.  Again Moyo argues that aid to these countries was smaller (10% GDP) and for a shorter term than that extended in Africa.  Next, Moyo tackles an African counter-example, Botswana, where 20% of GDP was from aid during the 1960s.  The country experienced a sustained high growth rate in the proceeding decades and had subsequently reduced aid to 1.6% of GDP by 2000 (Moyo, 2009, p. 38).  Moyo argues that Botswana is not an example of aid success, it is actually a triumph of free trade, stable monetary policy, and fiscal discipline; a success story of market policies and working institutions.

    What then does Moyo make of aid conditionalities that have been developed over time to encourage free market and good governance policies similar to those she credits for Botswana’s success.  Conditionalities do not work, according to Moyo, citing a World Bank study that showing that 85% of aid with conditionalities was not spent on its specified purpose.  An attempt to finance a power station might inadvertently finance a brothel.  A horrifying prospect to be certain, but by merely pointing out that conditionalities are not currently being followed and then concluding that aid does not work would be as emotional of a response as was meant to be elicited by the brothel scenario.  If conditionalities are not working then it would be worthwhile to examine how they might, especially if the ends they are promoting are precisely the ones you are arguing for.  Moyo does not do this, perhaps in order to sidestep the issue that oftentimes conditionalities do work.  The other 50% of African countries have functioning democracies with regular elections, freedom of the press, and basic human rights partially due to conditionalities.  Moyo then grasps at straws to counter the aid proponent that has satisfied all of her extenuating circumstances by asking about the prospect of aid to African countries with good policy environments - how would aid not work if it was designed to promote democracy and its accompanying institutions; a functioning legal system, contract enforcement, and property rights?  In these cases Moyo asserts that democracy might get in the way of good governance, by making it harder to pass economically beneficial legislation.  Moyo cites the Asian Tigers as examples of economic development occurring in less than democratic environments, and floats the desirability of a benevolent dictator over that of democracy for Africa‘s economic development.  The disconnect is staggering.  Moyo argues throughout the book that accountability for government officials is paramount to economic development.  One would think that a democratically elected leader would be more likely than a dictator to be responsive to his/her constituency’s economic needs and more readily held to account.  Moyo momentarily disagrees. 

    Moyo is only willing to concede that it is possible for aid to have some positive short term effects.  But she offers a hypothetical example of how short term aid success could result in long term harm.  The example involves an aid agency deploying mosquito nets to a country to combat malaria. Many lives are saved by the deployment, but the local mosquito net manufacturer is run out of business due to disappearing demand.  The country is left in as poor an economic position as before, but now after the nets deteriorate, they will also lack the capacity to replace them.  This is an example of where Moyo places arbitrary limitations on possibilities of aid, while imaginatively considering free market solutions.  When Moyo returns to this mosquito net example later in the book to demonstrate how a market based approach would have been preferable, she hypothesizes that once malaria had subsided due to access to healthcare due to economic growth due to her policy prescriptions, we would again be putting the unfortunate local net maker out of business by destroying demand.  In this case, the net maker is more industrious and allowed to reconfigure his/her business into making hair nets.  Why would the local net producer in the first example not transfer their skills to a related craft where demand had not run dry?  And why would they not return to net manufacturing if and when demand also returned?  Those assumptions would be made if applying a classical economic decision making model.  Those are the assumptions that Moyo bases her free market arguments on.  Yet those assumptions inexplicably do not hold here, where they would demonstrate that aid is not the force of evil that Moyo tries to argue that it is. 

    Moyo argues that aid kills growth primarily by causing corruption, but also by weakening the middle class, fomenting conflict, causing inflation, reducing savings, crippling exports, prompting the issuance of losing bonds, and breeding lazy policymakers.  Aid causes corruption when it is disbursed to governments that lack accountability.  Due to low incomes, the tax base in Africa is comparatively small.  When government revenue comes from aid rather than a tax base, leaders are no longer accountable to their constituencies, so the argument goes.  This argument presumes that we are not talking about a democracy even though there is a fifty-fifty chance that we are.  If we are talking about a democracy, Moyo would have us assume that due to the corrosive nature of aid it will be suffering some dysfunction such as a prevalence of patronage politics that will negate the responsiveness of the democratic process.  In either case, democracy or not, leaders’ paramount concern will be how to effectively exploit aid resources.  They will skimp on construction projects, for instance, and pocket the proceeds, building a bridge for appearance sake that is doomed to crumble unexpectedly one day.  Even though there are real life examples of this kind of behavior, that notion is offensive.  Leaders after all use bridges too.  So do their friends, and family, not to mention their fellow citizens and foreign visitors.  It is possible for African leaders to be as benevolent, visionary, capable, and responsive as any Western leaders.  One need only to look at the list of Nobel Peace Prize laureates over the past twenty years and note the five Sub-Saharan Africans on it.  African leaders can and do care about their constituencies.  African leaders can and do want the best outcomes for their countries and can and do put policies into place to achieve those ends.  Many African leaders turn down opportunities for corruption as readily as their Western counterparts.  Not all African leaders mind you, but more than Moyo conceives as possible.  And some take advantage of opportunities for corruption as readily as their Western counterparts too.

    The fact that some African leaders are corrupt, is not caused by aid, as Moyo argues.  Neither is it a reason to end aid.  African leaders do not lack some fundamental element of psychological constitution that compels them to steal whenever the chance presents itself.  If that were the case, then none of Moyo’s prescriptions would work.  The reality that corruption exists provides incentive for aid donors to guard against it, not to discontinue aid to corrupt and honest politicians alike.  If Moyo is right about the destructive affects of fueling autocrats with aid, fueling them with FDI or access to capital markets would be equally destructive, if not for the market mechanisms that discourage bad behavior.  This observation ought to lead to an argument for utilizing those mechanisms in the delivery of aid, not for arguing to cut aid off completely.  At least that way deserving governments that play by the rules continue to receive aid and only corrupt governments are cut off.  What happens when leaders are cut off?  Under Moyo’s prescription leaders would be left to the market.  When corrupt leaders are caught cheating the market do they suddenly become more responsive facing the prospect of becoming slightly less rich?  That is doubtful, I am sure even to Moyo.  Does that mean market solutions are failures as well?  Somehow her answer I would guess is no.  Her desire to vilify aid leads to important insights becoming muddled with implausible arguments to the point where it becomes difficult to discern one from the other.  But blaming aid is Moyo’s unique contribution to the literature.  Her policy prescriptions amount to promising reports on current market trends in the developing world.  A book exclusively detailing the benefits of microfinance and its ability to collateralize trust within the group-lending model would not have sold nearly as many copies but might have been more palatable to the intellect.

    Some of Moyo’s policy prescriptions struck me as equally galling as her abstruse aversion to aid.  Moyo‘s advocacy for entering the international bond market was sound in structure but not entirely persuasive.  In particular her explanation of the importance to this process of African leaders wooing international investors, and letting international corporations rewrite their tax policy in order to obtain a rating from the revered agency that sanctioned the credit-default swaps and mortgage-backed securities that wreaked havoc on our global financial system, in order to join a more exclusive club, to get richer investors to come expecting more tax concessions and more intensive ‘wooing‘ left me shuddering at the thought of what exactly that might mean.  There are benefits to being a winner in the bond leagues - lowered borrowing costs, access to more capital, etc.  But this raises the question of why must aid be excluded from the implementation of this type of solution.  Moyo indicates that it would be beneficial for African countries to get the World Bank to offer a provisional guarantee for their initial bonds as Argentina had done previously (Moyo, 2009, p. 95).  The difference between that strategy and one where the guarantee money is granted to a country to use for that purpose and to obtain future bonds once the initial bond is paid off is without a distinction save for the satisfaction it affords people like Moyo in knowing that aid is not being doled out.

    Moyo’s book sent me reeling, groping for balance, only to regain my ideological footing once the novelty of her argument gave way to its substance.  Dead Aid challenged the conventional aid wisdom and forced an uncomfortable and frank, but beneficial, conversation among academics.  Dialogue on aid has expanded as a result, prompting donors (I imagine) to more carefully consider the true impact of aid.  Moyo did not succeed in making aid obsolete.  Her policy proposals call for the continuance of various financing innovations at work in Africa today, and more importantly urges the continuing innovation of finance.   Granting access to markets in innovative ways to people in poverty around the world has the potential to make a large, lasting, positive impact on livelihoods in Africa.  FDI is already reaping benefits and causing growing pains and reciprocal benefits in African economies across the continent.  New trade avenues in Asia could provide the means for economic development in agriculture that has been stymied by Western protectionism, and spark growth in industry, and services too.  These processes are supplemented with aid.   Aid will continue and will change in response to new challenges as they come.  Aid is not a single entity or even the process of giving money for a non-commercial purpose.  It is the process of assisting those in need of assistance.  Moyo’s critique of aid is reserved specifically for state to state aid transfers.  But even she sees room for innovation in this particular form of aid in conditional cash transfers.  Aid will fail at times.  This will necessitate a change in aid, not in a cessation of assistance.

Citations

1    Easterly, W.  "Geography Lessons: Correcting Sachs on African Economic Development." Huffington Post. May 29, 2009.
2    Moyo, D.  Dead Aid: Why aid is not working and how there is another way for Africa. New York: Farrar, Strauss and Giroux, 2009.
3    Rodrik, D., & Subramanian, A. "The Primacy of Institutions and What This Does and Does Not Mean." Finance and Development. June 2003, pp. 31-34.
4    Sachs, J.  "Institutions Matter, But Not for Everything." Finance and Development. June 2003, pp. 38-41.
5    Sachs, J.  "Aid Ironies," Huffington Post.  May 24, 2009.

Saturday, April 07, 2012

Sunday, March 06, 2011

Story



by Iris

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Friday, June 19, 2009

A Patriot's Guide to Vegetables

Avocado: Now, I know you’re thinking ‘what in tarnation is a tree fruit with an illegal immigrant name doing on a list of patriotic vegetables?’ The answer is this – these puppies got enough potassium in a bushel-full to assassinate ten abortionists. It’s not as messy as shootin’ ‘em, you don’t have to do it at church (though you certainly could), and we could blame it all on the Mexicans. Yessir, Avocados serve our country proud.

Corn: As the saying goes, ‘corn didn’t land on Plymouth Rock’. And I’ll give you that. I know it’s politically correct to point out that Indians eat corn. So I will. That doesn’t make any of them patriotic. Matter of fact I got my suspicions that all the genetic engineering and cloning they do with corn may have something to do with the stem cell research John Kerry wanted to do to help out Osama. But I can’t ignore the fact that eatin’ an ear of corn while watching my favorite episode of Everybody Loves Raymond is one of the simple joys of life. When that guy with the droopy face talks in that Frankenstein voice all I can think of is how glad I am that life begins at conception, and how delicious this corn tastes. I don’t care what Big Oil says, corn’s patriotic.

Eggplant: I should start by saying that aubergines are as anti-American as Jim Carey on a date with Mike Myers at a falafel hut, and they will not be tolerated. But eggplants are alright. I can slice ‘em into pieces and fry them, beer-battered, and munch on them during Everybody Loves Raymond. Also, I can’t help but feel that if eggplants had to use a disposable razor, they’d pick Gillette, because it’s the ‘best a man can get’ and eggplants always remind me of a testicle inflicted with elephantitis. Schick is for Julius and Ethel Rosenberg. Patriots use Gillette, and that’s why eggplant is a patriot.

Soy Beans: Not patriotic. The Jerrys eat ‘em like popcorn. They got it from the Russians who got it from the North Koreans. No sir, I do NOT want my house bought and paid for by Kim Jung Il and I will not partake in the intake of soy beans. Plus that episode where Ray’s mother decides she aint gonna eat any fat no more and at Thanksgiving she has the gall to cook a tofu turkey?! That nearly ruined my marriage. That’s right soy beans are the food of communists, abortionists and married gays.

Peas: Peas are like tiny little bald heads freshly shaven by a Gillette disposable razor. Peas are in pods the way Ray is intertwined with his parents, his brother and his wife. Peas never ‘choose’ to end a life. And peas love to play scratch lottery tickets. Peas are as patriotic as that Chappaquiddick girl who gave her life so that Ted Kennedy would never become president.

Potatoes: Many are suspicious of spudding dirt-lingerers. But I know a handful of Armenians and they’re not as bad as you’d think. They’re alright. And potatoes are just fine too. You can peel their skin with a Gillette disposable razor. You can put four toothpicks in them and recreate your favorite episode of Everybody Loves Raymond. Or you could even scratch off your instant lottery ticket with a chipped potato of the Ruffles kind. Potatoes are as patriotic as the cleanly shaven Jesus in the custom-made portrait I have of Jesus to combat the liberal revisionist history version of a Jesus with unwieldy facial hair obviously caused by using a Schick disposable razor.

Rutabaga: I never saw Ray’s Dad make a morose statement about Rutabagas. I never saw them at a disposable Gillette shaver convention lunch buffet. I never heard of an instant scratch lottery winner spending their money on them. And I for damn sure never heard of anyone putting make-up on them and kissing them before I go to bed. Unpatriotic.

Squash: This is technically a fruit, but so is everything Nancy Pelosi ever said, so, we’ll count it. Squashes are a very lucky fruit. It was because of them that I won that $500 that one time on scratch tickets. They doll up real nice too. If you got your own lipstick and a wig it gets pretty close to the real thing. Squash don’t make no judgments. That’s patriotic in my book.

Turnips: Turnips don’t look past you to the computer when they get home from work. Turnips always encourage you even when they’re discouraging you. Turnips don’t hide things about your finances from you or tell you the same thing over and over even after you told them you’d take care of it. Turnips like it when you try to engage them about things they’re interested in. Turnips love Raymond, lottery tickets, Gillette disposable razors and political assassination. Turnips will put on that wig for you and insert that vegetable you like. Turnips are as patriotic as Michael Jordan brushing his teeth with an Oral-B toothbrush (Gillette subsidiary sister of Proctor and Gamble).

Zucchini: Full disclosure, my father was killed by a Zucchini. Luckily for zucchini he was an abortionist. If it were zucchini’s gay cousin cucumber that killed my dad, I’d hold a grudge, but the fact is, zucchini has helped me through many lonely nights. It is a gorgeous vegetable that will imitate any position we see on Everybody Loves Raymond and scratch off a lottery ticket as we both climax. If that isn’t patriotic, I don’t know what patriotism means.


Thursday, June 11, 2009

Prolonged Detention a Non-Starter in International Law

The Obama administration’s proposed ‘prolonged detention’ program has drawn criticism from all corners of the political ring. I defended the concept of the program through pragmatic, ethical and utilitarian arguments here. Although I believe the program is the right thing to do (within the strict parameters outlined), that doesn’t mean it is legal. Clearly it is not legal under U.S. law, which is why the Obama administration is pressuring Congress to change the laws to make the program, going forward, lawful. Despite being the most popular politician world-wide (a distinction that never would have been possible with a President McCain), President Obama cannot so easily shirk U.S. responsibilities under international law. As it happens, no matter how you package it or rework the legalese in the American judicial system to sanction the program, it would still be in clear contravention of multilateral treaties that the U.S. is party to. Not only are these treaties not the ones you would expect to uphold the rights of due process, equal treatment before the law, and a trial by jury, they are actually the treaties that the U.S. utilizes the most in its ‘War on Terror’.

In Obama’s national security speech he outlined a program his administration is proposing that would indefinitely detain prisoners of Guantanamo Bay that were deemed a threat to security, unable to stand trial in the American legal system and also unable to be tried before ‘military commission’. As I previously remarked, this population would most likely be limited to detainees who have no evidence against them who were in effect innocent at the time of apprehension, but who have in large part due to being tortured become a threat to American national security. It is not a pleasant thought experiment to undertake and has understandably drawn ire from defenders of civil liberties. Legal scholars too are debating whether this program would mark an ominous precedent, or whether it would be similar to policies of Lincoln and Franklin Roosevelt during a time of war. I would fall in the former category, though I would say Obama’s proposed program is indeed less ominous than those of Lincoln and Roosevelt. Those breaches of Constitutional guarantees, particularly the internment of Japanese Americans during World War II represent some of the larger scars on American legal tradition. There is a clear difference between those policies and Obama’s proposed program – while Lincoln and Roosevelt’s breaches of law were on a broad or national scale, Obama’s program will apply only to a small, definite and limited population. If it is extended beyond current detainees at Guantanamo that meet the criteria set forth earlier, then it will indeed be unjustified and as ugly and unwarranted as previous American concentration camps.

American obligations under international law are another story. International humanitarian law governs conduct of nations during a time of war. The Hague and Geneva Conventions are viewed as the foundational multilateral treaties of humanitarian law. The first and second Geneva conventions deal with the treatment of armed forces in the field. The third Geneva Convention deals specifically with the treatment of prisoners of war. The U.S. is a signatory and was among the first to ratify the Geneva Conventions including the third regarding treatment of war captives. If the Geneva Conventions apply to the detainees at Guantanamo, then Obama’s proposed program would be in direct violation. Even when applied only to the small theoretical population I described earlier – innocent captives who became victims of torture and are now security threats – the Geneva Conventions specifically address this situation:

Third Geneva Convention

Part IV, Section I, Art. 109
Throughout the duration of hostilities, Parties to the conflict shall endeavour, with the cooperation of the neutral Powers concerned, to make arrangements for the accommodation in neutral countries of the sick and wounded prisoners of war referred to in the second paragraph of the following Article. They may, in addition, conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity.

Part IV, Section I, Art 110. The following shall be repatriated direct:

(1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished.

II. General Observations

(1) The conditions given shall, in a general way, be interpreted and applied in as broad a spirit as possible. Neuropathic and psychopathic conditions caused by war or captivity, as well as cases of tuberculosis in all stages, shall above all benefit by such liberal interpretation.

It is fairly clear; captives that have incurable mental illness that was cause by the conditions of captivity are to be directly repatriated to their home country. Even General Petreaus has recently claimed that the U.S. violated the Geneva Conventions (though possibly in an [semi]unrelated matter). I can not find a reasonable opinion as to why these detainees would not fall under the Geneva Conventions (sorry, eight years of the Bush administration). As such, Obama’s newly proposed program would do nothing to change that.

Let’s do a thought experiment, though. Let us say for the sake of argument that the detainees do not fall under jurisdiction of the Geneva Conventions. What then? Isn’t there international human rights law in place that would prevent this program? The answer is surprisingly ‘not necessarily’. But what is even more surprising is that there is international terrorism law that would.

If we look at international human rights law, the so called ‘international bill of human rights’ – the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights – would be where we would begin to look for a right not to be indefinitely detained with no legal charges brought against us. This program would violate nearly the entire first half of the UDHR. Unfortunately it is an aspirational document and does not require actions of states. The ICESC doesn’t really deal with civil and political issues, and besides the U.S. isn’t even a signatory. That leaves the ICCPR. This is a civil and political matter. The ICCPR has the force of law (as much as international law has force). Article 9 states this:

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.


Obama’s indefinite detention program would be in gross violation of this Article of the ICCPR. But wait:

Article 4

1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

So as long as Obama declares a public emergency to the Security Council (Art.4.3), it is within the parameters of this Covenant to derogate from the right to trial by jury and of non-arbitrary arrest and detention. So much for Civil and Political Rights Guantanamo detainees!

Thankfully, because of the U.S.’s own efforts to internationally prosecute terrorism, there is a broad framework consisting of thirteen multilateral treaties that deal with terrorist offences. Due to the politically charged nature of terrorism, international consensus about a definition of terrorism has proven, so far, impossible to reach. As such, international terrorism law addresses specific acts which most states are willing to call terrorism – including hijacking airplanes, assassinating diplomats, bombings, and taking hostages. In all but one of these conventions there is a provision of aut dedere aut judicare; extradite or prosecute. The first terrorism convention, the Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963, did not contain such a provision and led to a string of hijackings that went unprosecuted. In 1970 The Convention for the Suppression of Unlawful Seizure of Aircraft was signed into law at The Hague covering, for the most part, the offences outlined in the Tokyo Convention. This convention required prosecution or extradition of offenders, as did every terrorism convention that has come since.

What this means is that whatever terrorism charge that the U.S. took Guantanamo detainees into custody for, warranted or not, they are required as signatory to every one of the terrorism conventions to prosecute the suspects or extradite them to their country of origin.

Obama does not have an easy out here. He can not just change the rules and make the proposed indefinite detention program legitimate in all circumstances. These treaties have been ratified by the U.S. Senate and carry the force of law. But this leads back to the question of ‘who enforces international law?’ And the answer right now is sadly ‘the U.N. Security Council’ on which America has a veto over any proposed resolution. Retribution could be sought by countries of origin of the detainees through the International Court of Justice, but the U.S. would most likely claim that the I.C.J. has no jurisdiction, as it did in the Nicaragua case (1986), though it clearly does under the U.N. Charter. At least in the Nicaragua case the U.S. allowed for the jurisdiction of the I.C.J. in the judgment of customary international law. That is, until the court found America in violation of that as well, at which time the U.S. dismissed the ruling outright by way of Security Council veto.

America has a choice here. Are we going to legitimize international rule of law and eschew the doctrine of American exceptionalism that has garnered international criticism, undermined the U.N. system, and prevented progress in the establishment of international democratic institutions? Or are we going to say ‘We’re a team of Mavericks, either you’re with us or against us, mission accomplished’?

Tuesday, June 02, 2009

An Appointment with Fate (or, A Good Doctor is Hard to Find)

Cross-posted from One Year In Texas

By Bub

The good Doctor had fallen on hard times. His scalpels weren’t as sharp as they used to be. His tongue-depressors now came from the fifth best merchant of depressors tongue and the like, instead of the third. That little shelf that you pull out on the Doctor’s examination bed wont push back in. He had recently seen a man with dropsy of the liver, and all he could do was sigh and brush the patient’s cheek with a cottonseed tail. He tried so very hard to lobby his way out of this funk. He took out advertisements on shop walls. He carved etchings into lavatory stalls. He wrote newspaper editorials for the Sunday Times. He dispatched several middle-sized marsupial creatures with violence. To no avail. That is, until one blustery summer’s eve.

After he got out of his funk that one blustery summer’s eve, the good Doctor took up the sport of pigeon-calling. He spent all of his mornings at the Royal Pigeon-Calling Yards in Northton. He became so entangled in his pigeon-calling pursuits that, on more than one occasion, he forgot to remove his pigeon-calling gloves when he greeted his first patient of the day. Now, at the time this was perfectly acceptable especially if the patient’s family was of higher moral stature than the good Doctor’s, but years later it became a popular insult and the good Doctor felt retroactively mortified. At present however, the good Doctor just forced a smile through the aching loneliness he felt in his throat

Before going to bed each night the good Doctor would swallow a tablespoon of corn flour. This served no medical purpose; he was simply taken with the taste. But as it turns out, once word of this sort of thing gets around, it can make a man many political enemies. And one St. Vincent’s Day at market, the good Doctor let it slip as to why a simple Welsh Doctor made regular purchase of barrel quantity corn flour. He did not know it, but it was the beginning of the end; the end of his days of buying corn flour discreetly and without others knowing the purpose for which the flour was being bought.

The day IT happened, the good Doctor stood in front of a restaurant vent in the Polish Quarter. He came down here in the evenings to enjoy the scent of pierogies and the feeling of racial superiority. A Pole ship-crewman approached. Saying nothing, he reached inside his satchel and retrieved a copy of Le Monde. The Pole held the news straight in front of the good Doctor’s face so that he was sure to get a good look. “Qu'ils Mangent de la Brioche” read the banner headline – Let them eat egg bread! The Pole tore the paper in two down the middle and threw the newspaper refuse with disdain into the air. The two men stared at each other with a sense of knowing and purpose as newspaper confetti rained down upon them. They were comrades now. The war had begun...

Thursday, May 28, 2009

‘Prolonged’ Detention Lesser Evil, Still, Evil

President Obama’s proposed preventative, or to use the President’s word ‘prolonged’, detention program that was outlined in his national security speech last week has rightly generated a lot of controversy. It is controversial. Unfortunately, much of the criticism so far is misplaced. The pronouncement of the program was largely met with speculation of doomful hypothetical situations – anything from the totalitarian detention of thought criminals to the end of the justice system as we know it. What is more, this speculation has come from all sides of the political spectrum – liberals who are afraid to confront reality and conservatives who are not even capable of that confrontation. The reality is that a ‘prolonged’ detention program may be the only moral choice left to rectify a long series of immoral policies.

Let us start with the fact that we only know a couple of things about the proposed ‘prolonged’ detention program, which are these: Obama only referred to ‘prolonged’ detention in regards to current Guantanamo detainees that are determined a threat and are unable to be tried (for reasons we will get to later); and that it will be a system that will include periodic review and the involvement of all three branches of government. If these are the sole parameters of a ‘prolonged’ detention program then such a program should be welcomed across ideological lines. This scenario seems to be the most likely outcome of a ‘prolonged’ detention program if only because it is what the President indicated, “I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred.” Obama is a gifted lawyer and as such very thoughtful in his choice of words. If he goes against them and expands the scope of any ‘prolonged’ detention program beyond “remaining Guantanamo detainees that cannot be transferred”, then cries of abusive expansion of authority will be justified. Until then it is imperative to take account of the situation that is and not cloud our judgments with situations we fear.

As much as it pains one to advocate the seeming abrogation of our Constitution and indeed the fundamental human rights of potentially dozens of people, our commitment to the protection of innocent lives must outweigh our commitment to absolutist legal principles, because even human rights can be conflicting. I have advocated against the detention of prisoners at, and indeed the existence of, the detention facility at Guantanamo Bay, and the use of torture, since these violations of U.S. and international law were first committed. That doesn’t change the fact that they have happened. It also does not change the fact that over seventy Guantanamo detainees released so far have gone on to fight against American troops or commit acts of terror. No doubt some, if not the majority, of these former detainees were completely innocent at the time of their capture or rendition, just as there is no doubt that many more innocent people were tortured and remain captive at Guantanamo Bay today.

Let us be clear, ‘prolonged’ detention in whatever form it takes would only be applicable to people who are innocent of any crimes, because anyone with a shred of evidence against them would at least be given a military tribunal. But over the course of seven years of torture and the close comradeship of very guilty Al Qaeda members it is likely that some, not necessarily all, of these innocent people now have the singular intention of committing terrorist acts upon release. I don’t want the government imprisoning people by way of determining who ‘is likely’ to commit terrorist acts, especially people that have not even committed a crime. But clearly the situation at Guantanamo Bay is exceptional. Anti-torture advocates, I among them, argue that torture creates terrorists, and in that argument we are generally only referring to people recruited to Al Qaeda by the mere thought of it. Actual victims of torture are understandably even more likely to engage in terrorism toward the society that allowed them to be tortured if only for retribution.

Despite being routinely misled about security threats for the past eight years, we still have the rational capacity to determine if our government is misleading us. We also still have professionals that are fully capable of competently assessing a security threat. If it is judged by a competent authority that some of these innocent (or not so innocent) victims pose a grave danger to the safety of other innocent people then that judgment has to be sufficiently damning. Arguments that favor upholding a legal principle in the face of any mitigating circumstances don’t account for reality.

The fact is that we do preventively detain people who have been determined a threat – people with mental illness. Mentally ill people who show signs of violence or violent ideation are detained indeterminately all the time with no serious objection. This is done because it is necessary to keep people safe and there is no viable alternative. It is unwelcomed and it is miserable, but it is reality nonetheless.

If, in the very peculiar and sad circumstances of Guantanamo Bay, intelligence experts and psychologists determine some of the innocent detainees are indeed threats to the lives of themselves or others, then it is the duty of the American government to keep them in detention for as long as they are deemed dangerous. This does not mean that they need to be imprisoned forever - indeed after more humane treatment and rehabilitation it would be likely that many could be released in the future. It also does not mean that it is preferable, if there is not a grave threat then innocent detainees should be released, as they have been. But in cases where a grave threat is posed by a detainee then there is no moral argument to release them, only to do harm to themselves or others. This should not be an easy determination. It should be done through the most rigorous procedures available. This should not even be simply deliberative. This should be painful as hell and we should all be very ashamed that it has come to this. But this should demonstrate all the more the necessity of bringing the perpetrators of the crimes that have led us here to justice.