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Cry Me A Riverbend II

Friday, January 14, 2005

My Ears Burning at the Straight Dope Forum

I was working here at my computer when suddenly my ears turned red hot. "Holy Otolaryngologist! Someone's talking about me!"

So I closed my eyes and clicked on my AdFree Stats link at random. Sure enough, someone had accessed my site through the Straight Dope forum.

Somehow the conversation there turned to Riverbend, and a poster had recommended this lil' shack as a supplement to her blog. (Thanks Ryan Liam. I'm honored!)

Then someone started talking smack about me and this blog, sooooo I jumped into the mix.

Here's the conversation. Enjoy. :)

By the way, I included in that give-and-take my challenge to any Unrealist who thinks the removal of Saddam was illegal or a war-crime:

If Saddam was removed "illegally" then he should released from jail, returned to power, and compensated with the funds and weapons necessary to put down the newly empowered opponents of his regime. If you don't believe that should happen, then you don't really consider the act illegal. Pick one.

I've yet to get an Unrealist to admit that Saddam should be reinstated or to explain why he shouldn't be even though the invasion was illegal. But the offer still stands. In fact, if any Unrealist is willing to take this statement on -- answer it honestly or explain why the alternatives are irrelevant -- I'll post his responses in full on this blog.

[UPDATE]
I finally got a taker on my challenge. He/She didn't leave a name, did make a valient attempt:

Your challenge doesn't stand up to much scrutiny. Most opponents of the war were also opponents of Saddam. His removal was the silver lining of an extremely large cloud. Naturally that does not make an unprovoked attack on a sovereign country legal, and overall it has probably done much more harm than good. That's no reason to undo the single good thing that came out of it.

A similar argument to yours would be the following:
A burglar breaks into a house. When he gets in, he finds a man having a heart attack and calls an ambulance, saving the man's life, before escaping with his life savings. If you think the burglary was an illegal act, you should have the homeowner killed, as he was only saved because of an illegal act. If you think the homeowner should be allowed to live, you don't believe the burglary
was illegal (and you should let the burglar keep the man's life savings).


Nice try. You seem to be suggesting that the INVASION was illegal, but deposing Saddam was not. I'm sorry, but that simply won't fly:

Saving a life is perfectly legal. If the invasion was illegal -- a war crime -- then removing Saddam Hussein was NOT legal.

Any response?

[UPDATE]
Jeff Kantor has taken up my challenge. Nicely done too. I suspect I am about to cry "Calf Rope".

Get your user's certificaton in International Law in the Comments section of this post.

BTW I screwed up my last response. Jeff's quotes and my response are inexplicably set in the same paragraphs, but Jeff's words are italics and that is how you will know the difference.

[UPDATE -- "Calf Rope!"]
Okay. Jeff Kantor has definitely proved his point. IF the invasion of Iraq were illegal under international law, then it WOULD NOT require that Saddam be released, reinstated, and provided with funds and munitions to fend off his enemies.

International law is not what it would appear to be...not even as what it's most fierce propronents seem to think of it. His response is too long and involved to do justice here but I definitely recommend you read it in the Comments section of this post.

However, I don't think his explanation of international law and why Saddam can be left in history's ashtray is really what the unrealists have in mind when they call the invasion illegal.

CMAR II says "Check it out"


13 Comments:

  • Very, very nice work in the debate. I enjoyed your measured and careful presentation; you got the best of them. The point seems to be that Cole's side presented NO real evidence, Fadhil's side presented SOME.

    So far, no evidence that Fallujah was a center of the rebellion at all. But it might have been. Just to demonstrate I can read.

    In light of the apparent murder of a whole Coptic family in New Jersey (throat slitting, stabbing of cross tattoos on the wrist of teenage girl) by Muslims who didn't want to be argued with, I would say you are wise to keep your identity under wraps. This is EXTREMELY disturbing and how this is investigated and publicized seems critical. It's not just Fallujah now, it's Jersey City.

    http://www.nypost.com/news/regionalnews/38704.htm

    Jeff

    By Blogger Jeff, at 9:35 PM  

  • Jeff,

    Thanks! Yes, that murder is very disturbing, I heard about it on TV this morning. Very worrying. Which again points out that if we were not fighting terrorist in Afghanistan and Iraq today, we would be fighting them (even more so) in the U.S.

    I'm working a following post for here regarding the validity of Dr. Khalidi's claim that the 1920 rebellion was sparked by the murder of Leachman in Fallujah. As a preview, I'll tell you now:
    LEACHMAN WAS NOT ASSASSINATED IN FALLUJAH AND HIS MURDER DID NOT SPARK THE REBELLION

    Dr. Khalidi was wrong about this and, from what I can determine, Dr. Ali Fadhil was probably right in his guess that Khalidi's version came from a Saddam error propaganda movie.

    By Blogger CMAR II, at 9:17 AM  

  • Hey CMARII, its Ryan_Liam here, just to say you're not alone in this campaign for the truth of Iraq.

    Keep in touch. Join the forum, you would add some serious weight to my arguments :)

    Regards.

    By Anonymous Anonymous, at 3:35 PM  

  • CMARII, Bravo!

    By Anonymous Anonymous, at 7:41 AM  

  • Your challenge doesn't stand up to much scrutiny. Most opponents of the war were also opponents of Saddam. His removal was the silver lining of an extremely large cloud. Naturally that does not make an unprovoked attack on a sovereign country legal, and overall it has probably done much more harm than good. That's no reason to undo the single good thing that came out of it.

    A similar argument to yours would be the following:-

    A burglar breaks into a house. When he gets in, he finds a man having a heart attack and calls an ambulance, saving the man's life, before escaping with his life savings. If you think the burglary was an illegal act, you should have the homeowner killed, as he was only saved because of an illegal act. If you think the homeowner should be allowed to live, you don't believe the burglary was illegal (and you should let the burglar keep the man's life savings).

    Pick one...

    By Anonymous Anonymous, at 11:21 AM  

  • Okay, I'm going to give it a try. Mind you, now, I think the invasion was perfectly legal and I backed it 100%. And--you might wish to note--I learned this at Law School in my International Law class taught by the very liberal scholar and now judge of the International Court in the Hague, J. A. Buergenthal: international law is SUBORNDINATE to domestic law in the United States. No law can bind a sovereign nation without its consent.

    But....

    IF invading Iraq were illegal, once Saddam is deposed, the occupying authority becomes the sovereign, at least arguably. A similar principle underlies Saddam's legitimacy after all. Saddam took over the government of Iraq by force. Even if his doing that were illegal under Iraqi and international law, he would still become the legal ruler of Iraq.

    If this principle were not true, who would be the legal sovereign of Iraq? The Hashemite pretender? The President of Turkey? The next in line to the Ottoman throne? The Caliph? The Iranians? Nebuchadnezzar's Ghost?

    Customary international law says that territory and sovereignty are acquired by descent, by discovery, and by conquest. And all of these principles hold whether the force used was legal or illegal in the first place.

    So, the BEST you could say if you thought the invasion was illegal is that Saddam Hussein still has a CLAIM to being the rightful sovereign of Iraq, since the war could be seen as unsettled. But since everyone in the world almost seems to recognize the Allawi government, Saddam is probably toast--unless he can get his position back. The King is dead. Long live the King!

    Jeff Kantor

    By Blogger Jeff, at 8:01 PM  

  • CMARII,
    Enjoyed the read on your linked thread the discussion went very well, IMHO.

    Interesting this topic came up again, for me J.Coles's claim that Fallujah received 'massive air strikes' in 1920 seemed more likely an overstated view of history from this overblown ME expert, as others have stated before. Good eye C~II, can't wait to see more of this ongoing thrashing of J.Coles's side stepping of Ali's questions. I left your link at Ali's as he might enjoy the read as well.

    <>

    By Blogger Leap Frog, at 10:01 PM  

  • Leap Frog,

    Ooh! I didn't even think to do that. Thanks.

    By Blogger CMAR II, at 9:31 AM  

  • Jeff,

    Thanks for the comment. I want to consider and respond to it on the main thread (even to offer a concession if necessary), but I want to make sure I understand it first. This is a way more nuanced argument than I've ever faced before.

    Are you saying this?:

    "There's 'legal' at the UN, and then there's 'legitimacy' by custom. It might have been illegal for a UN member to invade Iraq, but once she did, she is the 'legitimate' ruler."

    Hmmmmm....but that legitimacy would seem to be only important when it comes to responsibilities of rule -- not to actually having the right to be there. Or maybe it means more, I'm not sure.

    If the invasion were illegal, wouldn't the only remediating act be to return Iraq to as close as possible to the way it was BEFORE the invasion? I know that there is no government that practically could force the US to do that; but if it could, would that be what it would be expected to do?

    Everytime I try to get my mind around this argument, it slips away.

    Am I making a mistake in that when I that when I think of International Illegal, I am drawing mental analogies to Domestic Illegal? Is International Law such a different animal that such an analogy makes all subsequent propositions erroneous?

    My visceral response to this argument is "Oh! So it was illegal. Big deal." But I somehow I don't think I'm entirely grasping this professor's point.

    Something needs to be nailed down more distinctly: either your professor's point (who certainly qualifies as an expert) or my understanding of the nature of International Law.

    Now, I believe that a government that is not founded on a social contract with its people in fundamentally illegal. Saddam's terror regime, supported by some fraction of the 20% Arab Sunnis in Iraq certainly qualifies in my book. So overthrowing it and establishing an electorally responsible government is legitimate by definition. But that's beside the point.

    By Blogger CMAR II, at 9:38 AM  

  • Uh-oh! This is a way more nuanced response than I usually face, too!

    My comments (** **) interspersed in your answer to make better sense.

    **

    Are you saying this?:

    "There's 'legal' at the UN, and then there's 'legitimacy' by custom. It might have been illegal for a UN member to invade Iraq, but once she did, she is the 'legitimate' ruler."

    **There is something to that. Customary international law—for example, the law of the sea--is a traditional formulation that binds among nations because of tradition, like Common Law in the English tradition binds domestically. But as with Common Law, statutory enactment can add, subtract or change it. BUT there is no binding international arbiter of international law, customary or statutory. The ultimate arbiter is…force. A state may join arbitration in certain instances and it may withdraw as well. For each state, the ULTIMATE arbiter of international law is its own domestic institutions. Our Supreme Court, for example, is the ultimate interpreter of international law for the United States. Even when we sign and ratify a treaty, Congress must pass enabling legislation putting it into force domestically or the Supreme Court will not recognize its binding nature. And if a statutory provison of domestic law clashes with some international standard (unless that standard has been adopted into domestic law), domestic law prevails.**

    Hmmmmm....but that legitimacy would seem to be only important when it comes to responsibilities of rule -- not to actually having the right to be there. Or maybe it means more, I'm not sure.

    **Okay, think about it this way. There IS NO international sovereign. Legitimacy in any given country is not derived from above. It is not derived from a standard of international law. It is derived from CONTROL. Whoever controls a country is the legitimate sovereign. Now that’s not absolute of course. Sometimes conflicts endure over time and a given country may find it convenient to recognize a government-in-exile. But eventually, over time, sovereign, legitimate power is based on who controls the territory, not on how he got there. And there is no principle of international law adopted by nations, under the UN or otherwise, that says any different. Who knows? We may evolve to a different standard one day. But it’s hard to see what it will be absent some kind of international sovereign. And despite what many foreigners seem to think, the UN as a body is SUBORDINATE to sovereign nations. They can leave, they can disestablish it. They created it.

    So, for example, the Soviets invade Poland. They install a stooge, puppet government that stays in power through force. Does international law say that is legal? Maybe. Maybe not. But regardless, the stooge government eventually becomes recognized as the legitimate government of Poland. The legality of the original invasion has nothing to do with the legitimacy of the new government. The only question is, does it control the country?**

    If the invasion were illegal, wouldn't the only remediating act be to return Iraq to as close as possible to the way it was BEFORE the invasion? I know that there is no government that practically could force the US to do that; but if it could, would that be what it would be expected to do?

    **Remediation is not involved. One COULD claim an unsettled situation and support Saddam’s return if one wanted to. But there is no necessity to do so just because the invasion was illegal. The principle is not, How did Allawi get there. The principles are, Does he control the country (i.e., are there any functional competitors) and has that been stable over time? The lack of real competitors for control, the stability of the government, its control (more or less) over the whole country, and—very important—the real DESTRUCTION of the previous regime (i.e., no government in exile), these are the reasons why the whole world, including the Arab world, has recognized Allawi. No one continues to recognize Saddam. And THAT, in its turn, strengthens Allawi’s claim and weakens Saddam’s. Governments control because of successful use of force, in the end. That’s reality. AND that’s international law.**

    Everytime I try to get my mind around this argument, it slips away.

    Am I making a mistake in that when I that when I think of International Illegal, I am drawing mental analogies to Domestic Illegal? Is International Law such a different animal that such an analogy makes all subsequent propositions erroneous?

    **Well, think of adverse possession in domestic law. If you take land and keep it and use it, eventually it becomes yours. There are many differences here, but the essential pragmatic basis is the same. That’s why Saddam’s claim to Kuwait was such garbage. Even if the British DID steal it from Iraq (that’s actually garbage, too) it became Kuwait. No remediation necessary. Tough patooties. Same principle in the border mediation between Ethiopia and Eritrea. Step One: the treaty gives the land to Eritrea. Step Two: who's been illegally in control in the meantime? Ethiopia. Conclusion: Ethiopia keeps the land.**

    My visceral response to this argument is "Oh! So it was illegal. Big deal." But I somehow I don't think I'm entirely grasping this professor's point.

    Something needs to be nailed down more distinctly: either your professor's point (who certainly qualifies as an expert) or my understanding of the nature of International Law.

    Now, I believe that a government that is not founded on a social contract with its people in fundamentally illegal. Saddam's terror regime, supported by some fraction of the 20% Arab Sunnis in Iraq certainly qualifies in my book. So overthrowing it and establishing an electorally responsible government is legitimate by definition. But that's beside the point.

    ** Well, now you’re talking about a moral point, I think, or a point of political philosophy, not international law. Can you invade a country to save its people from obliteration by a tyrant? Is that legal under international law? I think it is. Who gets to decide under our system? WE DO. (My point about domestic law judging international, not the reverse.) But whether or no, if a new government is established, the new government is legitimate or eventually becomes so. We have always recognized that a government not derived from the support of its people is in some sense illegitimate, but as a moral principle, not a legal point. The Emperor of China was the Emperor and always recognized as such by us. But when democratic revolution comes to China, we tend to sympathize and support.

    I think it’s important to recognize that all of this is fluid and changing and evolving and we may be—God forfend—on the point of recognizing an international sovereign in fits and starts. Or we may eventually be where you want to be: No non-democratic government will any longer be regarded as legitimate by the rest of the world. That might well be a good thing and the Bush “revolution” aims at that as an ultimate goal, I think. My only point was, you can make the argument that the invasion was illegal (violated some treaty obligation or international agreement or we were simply wrong and not justified in going to war) but that there is a fait accompli and now a new Sovereign. IF you believe the invasion was illegal, it’s still probably the BEST conclusion, though not the only one.

    BTW, the fun point for conservatives about international law in Buergenthal's class was the setup. Conflict between local law and state law, which controls? State law. Between state and federal law? Barring constitutional issues, federal law. Between federal law and international law? FEDERAL LAW. You expect the ranking to jump to international. But it just doesn't. We are a world of sovereign nations. Yet awhile.

    I feel dreadful taking up all this space on your blog. If you want to take this discussion onto email at kantors@patriot.net, it’s fine by me. And feel free to disagree. There is a point of natural justice and reason that you are making that is appealing. And I doubt that many of your interlocutors have any reason to think they are being logical—there IS a seemingly logical consistency there. I’m not asking for a retraction and I think you’re being a great sport.

    Jeff Kantor

    By Blogger Jeff, at 8:19 PM  

  • I feel dreadful taking up all this space on your blog.I can't imagine better use of this space right now. If you are willing to continue to discuss this here, that would be my preference. If not, just respond directly to me next time via email. crymeariverbendii at yahoo.comI’m not asking for a retraction and I think you’re being a great sport.Honestly I'm perfectly willing to offer a retraction when I am convinced one is due. It won't even be all that painful. Just an admission that if the invasion was illegal, Saddam doesn't have to be reinstated...in other words I need only admit that IF something I don't believe happened had happened, THEN it would NOT ethically require something to happen that I don't want to happen but certainly won't happen anyway.

    Conflict between local law and state law, which controls? State law. Between state and federal law? Barring constitutional issues, federal law. Between federal law and international law? FEDERAL LAW. You expect the ranking to jump to international. But it just doesn't. We are a world of sovereign nations.Ah! Now the whole claim of the illegality of the war breaks down. If the President were authorized to invade Iraq by Congress (as he was), then was the invasion illegal under international law? Particularly (but regardless of this fact actually) when the UN did not explicitly forbid the action?

    Well, think of adverse possession in domestic law. If you take land and keep it and use it, eventually it becomes yours. There are many differences here, but the essential pragmatic basis is the same.I am very glad you brought this up. What about rare works of art stolen from Jews in Nazi Germany. No matter how many subsequent owners there have been, the painting must be returned to heirs of the original owner. Or is this a case of DOMESTIC law?

    One last thing, if I adopt this argument, then it seems to me that it devastates the claim that the "Occupation" or the interium government it set up is objectively illegitimate. Since pragmatism is all that matters, the Ba'athists are the ones that are illegitimate now, since they have lost control of 95% of the country. Do I have this right?

    Democracy don't rule the world
    You best get that in your head.
    This world is ruled by violence,
    But I guess that's better left unsaid.
    --Bob Dylan, Union Sundown

    By Blogger CMAR II, at 3:45 PM  

  • (My original statements in standard; your responses set off with asterisks; my subsequent responses in CAPS.)

    Conflict between local law and state law, which controls? State law. Between state and federal law? Barring constitutional issues, federal law. Between federal law and international law? FEDERAL LAW. You expect the ranking to jump to international. But it just doesn't. We are a world of sovereign nations.

    **Ah! Now the whole claim of the illegality of the war breaks down. If the President were authorized to invade Iraq by Congress (as he was), then was the invasion illegal under international law? Particularly (but regardless of this fact actually) when the UN did not explicitly forbid the action?**

    WELL, UNFORTUNATELY IT'S A BIT MORE COMPLICATED. WE MAY BE THE ULTIMATE ARBITERS OF INTERNATIONAL LAW FOR OURSELVES, BUT NOT FOR OTHERS. IF WE SIGN A TREATY BUT DON'T ADOPT ENABLING LEGISLATION TO PUT IT INTO EFFECT AND THEN VIOLATE IT, IT IS INEFFECTIVE UNDER OUR DOMESTIC LAW. BUT OTHER COUNTRIES CAN STILL LEGITIMATELY COMPLAIN, "YOU BROKE YOUR PROMISE. WE WILL SANCTION YOU (OR SOMETHING)." AND THEY WOULD BE RIGHT.

    WHETHER THE WAR IS "ILLEGAL" OR NOT BOILS DOWN TO HOW YOU INTERPRET VARIOUS ARTICLES OF LAWS ESTABLISHING THE UN AND OTHER RELATED CONVENTIONS ADOPTED BY US CONCERNING THE RIGHT TO WAGE WAR. SOVEREIGN NATIONS RETAIN THE RIGHT OF SELF-DEFENSE. IS WAR WITHIN IRAQ WITHIN THAT AMBIT? WE SAY YES. OTHERS MAY SAY NO. THERE IS NO INTERNATIONAL ARBITER SET UP TO SETTLE THAT DISPUTE. SO FOR US, *WE* SETTLE IT. ONE COULD ARGUE, THOUGH, THAT WE SETTLED IT IN A DISHONEST WAY.

    Well, think of adverse possession in domestic law. If you take land and keep it and use it, eventually it becomes yours. There are many differences here, but the essential pragmatic basis is the same.

    **I am very glad you brought this up. What about rare works of art stolen from Jews in Nazi Germany. No matter how many subsequent owners there have been, the painting must be returned to heirs of the original owner. Or is this a case of DOMESTIC law?**

    MY POINT WAS NOT THAT ALL PROPERTY CAN ALWAYS BE ALIENATED BY THEFT. JUST THAT THERE ARE *SOME* PARALLELS TO "ACQUISITION BY FORCE" IN DOMESTIC LAW. BUT THE LAW OF PROPERTY, REAL VS. PERSONAL, ENGLISH VS. ROMAN, DOMESTIC VS. INTERNATIONAL IS COMPLICATED.

    **One last thing, if I adopt this argument, then it seems to me that it devastates the claim that the "Occupation" or the interium government it set up is objectively illegitimate. Since pragmatism is all that matters, the Ba'athists are the ones that are illegitimate now, since they have lost control of 95% of the country. Do I have this right?**

    WELL, THE BAATHISTS DON'T CONTROL *ANY* OF THE COUNTRY ANYMORE. THERE ARE INSURGENCY OPERATIONS GOING ON THAT MAY INVOLVE SOME BAATHISTS, BUT THEY DON'T RULE ANYWHERE.

    ONE CAN ARGUE THAT A GOVERNMENT IMPOSED BY FORCE FROM OUTSIDE IS UNJUST. AND THAT HAS SOME EFFECT ON THE CALCULUS OF LEGITIMACY, DOESN'T IT? BUT THE ULTIMATE WAY THE QUESTION IS SETTLED IS BY FORCE AND LENGTH OF TIME. REMEMBER, I SAID ONE *COULD* ARGUE THAT SADDAM STILL HAS A CLAIM TO BE THE LEGITIMATE RULER, THOUGHT IT'S DIFFICULT. MY POINT IS JUST THAT *IF* YOU ARGUE THAT SADDAM WAS *REMOVED* ILLEGITMATELY, IT DOESN'T FOLLOW UNDER INT'L LAW THAT THE GOVERNMENT INSTALLED AFTERWARD SHOULD BE REPLACED BY SADDAM. YOU *CAN* SAY, AND IN THIS CASE PROBABLY *WOULD* SAY, "BAD MEANS, BUT GOOD END ACHIEVED. LET'S STICK WITH IT."


    Jeff

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