Archive for January, 2011

Not a suicide pact

January 28, 2011

We’ve seen how establishment thought treats its past. What then of its present?

If no broad significance is attributed to the Earl of Strafford‘s execution, how is the emergence of a figure like John Yoo understood?

Yoo is a Berkeley law professor and former Justice Department official. He recently has published a book describing (yet again) the supposedly boundless constitutional ambit of the US federal government’s executive branch in matters of national security and foreign affairs.

Within it, as in his earlier work, the military-security-police-intelligence authorities are redefined as plenipotentiary. The President and his agents are claimed to have near-absolute prerogatives of arrest, detention, interrogation, punishment, interpretation of treaties and making of war.

Yoo’s arguments are of course crude and unpersuasive.

The historical record is treated cavalierly: predictable and misleading mention is made of Lincoln’s temporary suspension of habeas corpus, his wartime military tribunals, the blockade of Confederate ports and drafting of a militia without congressional authorization.

In defending such actions, Lincoln expressed doubt that ‘a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life’.

But Yoo indeed argues for a permanent revision to the separation of powers.

The old ‘constitutional model that required the approval of multiple institutions before the United States could use force may have made some sense’:

The world after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force…

[The] need to use force may actually be dramatically higher than before…

This book proposes… a flexible decision-making system that can respond to such sweeping changes in the international system and in America’s national security posture.

Yoo’s purpose, obviously enough, isn’t to offer neutral description, or even donnish policy prescription.

It is to provide legitimacy and polemical support to an actually-occurring phenomenon. (In this he is like the Abolitionist William Whiting, who wrote during the 1860s in support of Lincoln’s exercise of war powers.)

Of scant intellectual interest, Yoo must be taken as a political straw in the wind.

The public prominence and degree of professional success earned by a person with such views, at this precise historical moment, do not arise merely from personal ambition, intellectual inclination and good fortune.

Yoo is increasingly correct in claiming to offer ‘a constitutional theory of the foreign affairs power that differs, at times sharply, from the conventional academic wisdom but that describes more accurately the actual practice of the three branches of government.’

When Lincoln defied the judicial arm, he fought the most reactionary branch of the US federal state. The Supreme Court had earlier supported the westward spread of slavery, and thus precipitated the secession crisis. Enlargement of presidential power thus supported the ‘good cause’ of emancipation.

Nowadays, however, the expansion of executive power, free of congressional checks or judicial scrutiny (let alone democratic control), is itself a project driven by the most conservative echelons of the US elite.

This does not preclude the participation of legal elements, such as Yoo, Posner père et fils, the US Supreme Court justice who frankly advocates torture, or his comrades in the Federalist Society.

The project itself may assume a legalistic guise, as in the pursuit of ‘police actions’ against ‘outlaw states’ by the Clinton and G.H.W. Bush administrations, or Obama’s stated support for extra-territorial aggression in defence of ‘international law’.

Indeed, such cosmopolitan internationalism has won practical support from jurists and legal professionals including Carla Del Ponte and Alan Dershowitz. It has gained the theoretical fealty of philosophers of law from Jürgen Habermas to Larry May.

But juridical ingenuity here works in the service of a planetary Leviathan: raw executive power, a mortal god unchecked by legal stricture or scruple, elevated from the domestic to the international sphere.

While restructuring of the state may assume its most consequential form in the imperial capital, the process is not restricted to Washington.

In Australia, the march towards indefinite, non-judicial detention commenced via the Migration Amendment Act and Migration Reform Act of 1992. The Labor government’s Immigration Minister, Gerry Hand, presented the first bill to Parliament.

His reading made clear that the law’s chief aim was to arrogate, for the executive arm, power of repression and incarceration that Chapter III of the Commonwealth Constitution had entrusted to the judiciary:

References to powers of arrest will be removed from sections 92 and 93 and from a number of related sections to ensure that no confusion arises between the powers under the Act to take persons into what might be termed `migration custody’ and the power to arrest persons for criminal offences.

Officers who exercise powers under the Migration Act to take persons into custody do so for specific purposes under the Migration Act related to migration processing and/or removal from Australia. Those powers are, therefore, not subject to the restrictions set out in the Crimes Act 1914 which apply to the power to arrest persons for criminal offences.

However, to make this distinction absolutely clear the term `arrest’ has been removed from a number of sections of the Act and replaced with the term `detain in custody’…

The Government is conscious of the extraordinary nature of the measures which will be implemented by the amendment aimed at boat people. I believe it is crucial that all persons who come to Australia without prior authorisation not be released into the community. Their release would undermine the Government’s strategy for determining their refugee status or entry claims…

The Government has no wish to keep people in custody indefinitely and I could not expect the Parliament to support such a suggestion. Honourable members will note that the amendment calls for custody for a limited period. The period provided for in the amendment is 273 days—this translates into nine months. This period is, however, restricted to that time where consideration of a person’s claims is directly within the control of my Department.

Where factors are outside the control of my Department, the period is suspended. For example, where it is up to the applicant to provide information relevant to a claim, the time taken to provide that information would not be included in the period…

The most important aspect of this legislation is that it provides that a court cannot interfere with the period of custody. I repeat: the most important aspect of this legislation is that it provides that a court cannot interfere with the period of custody. No law other than the Constitution will have any impact on it.

To legitimate the minister’s usurpation, the power of imprisonment was thus defined as an ‘administrative function’. Its purpose was not punitive, and was intended merely to facilitate deportation and the processing of refugee claims.

Of course, the 273-day limit on detention was swiftly removed, never to return. Appeals to judicial review on grounds of natural justice or procedural fairness, unreasonable exercise of power etc. were expressly prohibited. Applications for writs of mandamus, certiorari, etc. were forbidden for many categories of decision, and subject to strict time limits for others.

A regime of indefinite detention, free of fundamental common-law rights, was thus codified. It received the imprimatur of the High Court of Australia in its judgement on Al-Kateb v Godwin.

To this foundation of unchecked executive authority was then added a set of police-state ‘anti-terror’ laws.

These involved drastic expansion in the scope of the Commonwealth’s defence power (the constitutional entitlement to make laws with respect to ‘the naval and military defence of the Commonwealth’) and protective power.

The exercise of such powers was now held to cover internal, civilian matters. The executive (the PM or relevant minister) and its various agencies (federal police, intelligence organizations, military forces etc) thereby gained unprecedented peacetime ability to impose preventive detention, proscribe organizations and enforce repressive ‘control orders’ in anticipation of any occurrence of domestic disturbances.

The power for domestic mobilization of troops in civilian settings, in defence of ‘Commonwealth interests’, was granted by the passage of various unremarked-upon statutes in 2000 (before the Sydney Olympics) and 2006.

It was normalized by the deployment of naval vessels and SAS troops to enforce ‘border security’, the 2007 ’emergency intervention’ in the Northern Territory, and military participation in emergency recovery efforts following various natural disasters.

The legal and operational distinctions between military and police were blurred by the AFP’s role in gathering intelligence provided to special-operations assassination squads in Afghanistan, and the ADF’s policing activity during colonial missions in the Solomon Islands and East Timor.

All this was followed by the bestowal on a special-purpose industrial-relations authority of astonishing powers to compel evidence.

Classical liberals  Guizot, Mill, Constant, Dicey  would scarcely have recognized their own theories of government in such a system.

In the United States, withdrawal of habeas corpus began with the Anti-terrorism and Effective Death Penalty Act of 1996. Constitutional rollback accelerated greatly over the subsequent decade.

It has since proceeded under the current Democratic President just as it did under the previous ‘neocon’ incumbent.

Take this recent Justice Department’s submission, filed to a District Court in September 2010 in response to an attempted injunction by the family of Anwar al-Aulaqi, a US citizen listed for assassination by the Obama Administration:

[The] mere presence of a constitutional due process claim does not automatically render a case justiciable…

Plaintiff’s Complaint challenges the authority of the President of the United States, as “Commander-in-Chief of the U.S. armed forces” and “Chair of the National Security Council”— as well as the authority of the Secretary of Defense “over the U.S. armed forces worldwide,” and the authority of the Director of the Central Intelligence Agency “over CIA operations worldwide”— to utilize lethal force against plaintiff’s son, Anwar al-Aulaqi, whom plaintiff avers is hiding in a foreign country (Yemen)…

The extraordinary declaratory and injunctive relief plaintiff seeks here would constitute ex ante commands by the Judicial Branch to the President and officials responsible for military and intelligence operations against a foreign organization as to which political branches have authorized the use of all necessary and appropriate force. Enforcement of such orders would necessarily require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force overseas against that organization. Courts are not equipped to superintend such questions…

[Plaintiff] rests his challenge to the alleged use of lethal force against his son on the theory that he is physically located in a place where such force could not be used as part of an armed conflict. But even assuming, as plaintiff does, that his claims would depend upon whether the actions in question would take place in an armed conflict, the very determination of whether and in what circumstances the United States’ armed conflict with al-Qaeda might extend beyond the borders of Iraq and Afghanistan is itself a non-justiciable political question…

Indeed, resolution of most of the questions plaintiff puts at issue here would require the Court to assess a wide range of highly sensitive military, intelligence, and diplomatic information in order to determine what actions the President and U.S. forces may take against an operational leader of AQAP and to assess after the fact whether Executive actions have satisfied the Court’s injunctive standard.

But the law is clear that in these circumstances the Judiciary does not have the capacity or expertise to evaluate the array of sensitive and complex information upon which the President and his national security advisors and military personnel regularly rely in making their real-time decisions respecting the use of force abroad, or to second-guess the predictive judgments those officials must make concerning what actions may be in the Nation’s best interests.

In other words, princeps legibus solutus est.

Where it acknowledges any of this, mainstream (and ‘progressive’) US opinion explains it as the doing of a ‘cabal’ of ‘neocons’ based originally around Leo Strauss at Chicago, and now around the Federalist Society.

But this description is shallow and parochial.

It admits neither the depth nor the geographic spread of the phenomenon. It underplays the latter’s seriousness and allows no historical explanation, nor genuine political understanding.

Thereby rendered baffling, disappointing and inexplicable, the actions of the Obama adminstration  and governing Democrats generally  are seen as unfortunate mistakes, correctable via suasion, protest and argument.

Michael Moore could wonder Dude, Where’s My Country? then advocate voting for John Kerry, and write pathetically in his open letter to Barack Obama:

I simply can’t believe you’re about to do what they say you are going to do. Please say it isn’t so…

You of all people know that it doesn’t have to be this way. You still have a few hours to listen to your heart, and your own clear thinking. You know that nothing good can come from sending more troops halfway around the world to a place neither you nor they understand, to achieve an objective that neither you nor they understand, in a country that does not want us there. You can feel it in your bones.

We the people still love you… All of us that voted and prayed for you and cried the night of your victory have endured an Orwellian hell of eight years of crimes committed in our name: torture, rendition, suspension of the bill of rights, invading nations who had not attacked us, blowing up neighborhoods that Saddam “might” be in (but never was), slaughtering wedding parties in Afghanistan. . .

We thought you would stop the madness. Stop the killing…

Tonight we still have hope. . .

You DON’T have to do this. You can be a profile in courage. You can be your mother’s son.

We’re counting on you.

This insipid appeal to presidential scruple would be difficult to match for cynicism.

Much the same may be said, in Australia, for the analyses undertaken by progressive activists of mandatory detention and refugee baiting.

They describe such policies as the actions of a political class ‘pandering’ to popular racism. The topic of ‘anti-terror’ laws, less susceptible of such an explanation, is consequently ignored.

Some thought is given to the possibility that the targets of such moves may not be limited to ‘enemy combatants’, ‘unlawful non-citizens’, pedophiles or Aborigines.

But polite society generally agrees that the solution is a non-binding human-rights charter. Such a charter would provide a ‘framework’ of ‘principles’ to guide politicians, without interfering ‘unduly’ with their work or allowing laws to be struck down.

Handily ‘flexible’, a charter would ‘not stop the government taking strong and decisive action on issues of national security’:

There may well be situations in which rights need to be limited in the public interest. When this happens, the limitation must be fully explained and justified as being reasonable and proportionate to the achievement of a legitimate aim. In this way rights and duties can be balanced through a transparent process. In a public emergency parliament will be able take measures that override all but a few ‘absolute’ rights.

Little consideration is given to the possibility of a connection between the impairment of the judiciary and that of the state’s legislative arm, and, beyond that, the absence of popular influence on any substantive aspect of government behaviour.

The growing authority of the executive branch to act free of constraint (e.g. in imposing detention without legal redress) bears, clearly enough, some relation to the complete supremacy of Cabinet (and in that of the Prime Minister) over Parliament. Ad hoc coteries, assembled by the PM, frequently bypass even the full Cabinet on all manner of decisions.

The legislature, meanwhile, is denied by the party leadership any capacity at all to fulfil its supposed function, i.e. actually to make laws. Parliamentary ‘debates’, on any subject of importance, are entirely incidental to the action taken by government.

These features are today so complete as to appear literally unremarkable.

But they too represent a dramatic restructuring in the shape of the state and the distribution of power between its constituent parts.

The irresistible re-allocation of authority from States to Commonwealth receives more attention, as the diminished party remains powerful, generally resists weakening of its role, and can mobilize media resources.

But the recognized constitutional basis for this shift  the Commonwealth’s corporations power  is telling.

It reveals the existence (explicitly acknowledged by all parties in argument and all High Court justices in their rulings) of socio-economic causes behind the expansion of federal power into areas previously reserved for the states.

Might not such causes also have brought about the growth of unchecked executive power, war-making tendencies and repression? While such causes remain unaddressed, will not these violent tendencies continue to exist and accumulate, no matter how many saintly figures are elected to Parliament or appointed to the High Court?

About this, mainstream and left-liberal thought are generally silent.

How then to explain the turn towards prerogative rule and authoritarianism?

To have any idea we must look at matters of political economy, which in any society decide relations between rulers and ruled.

In short, understanding the contemporary decay of liberal parliamentarism requires moving beyond the intellectual framework of liberalism, i.e. that spawned by the very society under investigation.

The academy in context

January 25, 2011

Philip Mirowski’s soon-to-be-published book, Science-Mart, contains a good discussion of the destruction of the university as community of scholars.

This epochal – literally millennial – event is placed in some kind of political-economic context:

Viewed dispassionately, the ultimate objective of US education policy is two-pronged: to preserve a few private legacy institutions like the Ivy League for the affluent seeking that boutique diploma, encouraging them to flirt with corporate behavior but never entirely renounce their special status; and for the great mass of the population, to convert most of the rest of opportunities to low-cost for-profit options. The great public state universities are being slowly phased out: appropriations cut except when the sports teams are doing well; permanent faculty replaced with contract labor; the top-down imposition of business models on academic units in the name of ‘accountability’; and the blurring of public/private identities.

In this configuration of the future of education, it has not gone unnoticed that there is very little room for an elaborate or extensive research capacity. The cheap for-profits providing distance education have explicitly renounced any such functions as not a part of the business plan; the state universities lose their ability to maintain a diversified base as tenured faculty are phased out; and the gold-plated private schools pour most of their own resources into areas of the natural sciences that are able to attract private money, while starving everything else. The net result can only be that, wherever research is to be conducted, it will only be supported under conditions of commercialized co-operation with external corporations.

And here we observe the individual trends described above begin to mesh together into a neoteric system. Everywhere you turn, things that used to be cheap (if not free), are now occasions for making a profit. In the New Knowledge Economy, a dollop of high-class human capital is an offer you cannot afford to refuse, so you are willing to pay dearly for it, including student loans that stretch out well into your working career. If you are not one of the fortunate few born with a silver spoon or a golden credit rating, then the Internet supplies a lower quality version of the commodity on the cheap in the form of distance education. Since education is no longer about the formation of citizenship or character, then all that really matters is that some bureaucratic entity sanctions that you purchased the stipulated commodity—one reason for the popularity of the MBA and the undergraduate business major. The worldwide strengthening of IP imposes this Knowledge Economy upon the entire globe, under the rubric of Free Trade, including the ability of areas newly devoid of manufacturing to apparently live off the tribute of far-off others. Since the whole idea of an academic peer group loses its rationale, and information shades off imperceptibly into infotainment, knowledge becomes defined in a circular manner as whatever the market will pay for. And just when the modern corporation seeks to outsource its R&D functions as part of its restructuring, voilà, universities everywhere are vying with each other to accept contract research. Since information can be digitally transferred, owned and controlled far outside the bounds of the nation state, the university as research provider finds it must compete with both non-academic and foreign academic units, imitating the prior global reach of the transnational corporation.

Is it just an accident that such far-flung phenomena come together into something that looks very much like an integrated political economy?

Indeed, the university is just one theatre of operations in a decades-long project to raise the share of social activity subject to for-profit production. This is what Duncan Foley has called an outward shift of the ‘commodity frontier’, now encroaching upon more and more aspects of human life.

Through privatization of state assets, and other uglier means, capitalist property relations and commercial imperatives have expanded into formerly publicly-owned or not-for-profit territory.

Sectors with low capital-output ratios, such as education, have proved especially profitable and alluring targets.

Average, economy-wide rates of return on investment, from their low point in the 1980s, have thereby received a rejuvenating, if temporary, shot.

But the corresponding effect on the newly-colonized zones – including knowledge and intellectual enquiry – has been stultifying. The STEM fields have ensured a healthy afterlife performing outsourced R&D, but most disciplines of the humanities, social sciences and liberal arts have assumed an undead pallor.

Something more lurks behind this.

It is alluded to by Mirowski as ‘the ability of areas newly devoid of manufacturing to apparently live off the tribute of far-off others.’

The trade deficits of countries including the US, UK and Australia arise from the unwillingness, at prevailing rates of return, of resident firms and their owners to make investments in their respective productive bases (i.e. capital goods, plant and equipment).

A large proportion of the economy of these countries is in fact unproductive.

The activities of their large financial, advertising and legal sectors constitute a deduction from the social product. The agents whose income depends on such activities (the employees of the unproductive sectors, as well as executive management and all those whose income derives from interest and dividend payments) have gained the right to unproductively consume the product of the basic sector.

This of course leaves less available for reinvestment in production and employment. Such a slowdown in accumulation follows predictably from the maturation of capitalist economies.

In such circumstances, the role of education is no longer to provide the population with the widespread technical and general knowledge necessary for growth in national wealth or real capital assets (as distinct from monetary profit).

Instead, the priority of higher education becomes, as Mirowski explains:

  1. Extracting revenue from maintenance of the great mass of the population at subsistence levels of learning;
  2. Bestowal of titles to income streams. Today’s patents of nobility are degrees in law, finance, management etc., awarded by prestigious universities and marked with the necessary seal.

As (2) makes clear, the purpose of grandes écoles is simply to ration entry to the ruling elite.

This has become clear in the arguments surrounding affirmative action. Racial quotas in admissions to graduate programmes at high-end colleges are explicitly justified by the presumed existence of a ‘compelling state interest’ in ensuring ‘diversity’ of those student bodies from which corporate and state leaderships are selected.

Major corporations contributed this argument in an amicus brief for a case involving the University of Michigan Law School:

The students of today are this country’s corporate and community leaders of the next half-century… Diversity in higher education is therefore a compelling government interest not only because of its positive effects on the educational environment itself, but also because of the crucial role diversity in higher education plays in preparing students to be the leaders this country needs in business, law, and all other pursuits that affect the public interest.

The effect of all this on the wider culture, here joining other trends, is of course dismal. The state’s withdrawal from education provision leaves the way increasingly clear – no crowding out! – for the free dissemination of ignorance and obscurantism. Let a hundred flowers bloom!

Hence the bumptious philistinism of a ruling elite stacked with law degrees and MBAs; the thriving agnotology of climate-change denial, anti-vaccination guff and industry shilling; the inconsequential joshing of continental philosophy, with its latest ‘post-secular turn’; the desperate unseriousness of mass culture.

These phenomena are usually described with a sort of cheery grumbling. They inspire their proper dread only when viewed with an eye to the longue durée.

The urban efflorescence of eleventh-century Europe, centred on Italy and Flanders, and which birthed the university, was founded on a simple division of labour with the countryside. Agricultural surpluses, extracted as rent from the peasantry, were exchanged by lords for armaments and luxury textiles from the towns. This trade formed the basis for the towns’ mercantile and artisan culture. From it also emerged Europe’s first non-monastic institutions of higher learning since the fall of the Western Empire. The university as autonomous community of scholars subsequently survived through peasant revolts, plague and demographic collapse, Reformation, the absolutist state, revolution and intra-European warfare, the solvent of capitalism, transplantation to other continents, and so on. Its decline now should alert us to the fundamental shifts going on beneath us, of geological significance but occuring on the timescale of a human lifespan.

Past

January 20, 2011

‘Accidental causes cannot be generalized; and, since they are in the fullest sense of the word unique, they teach no lessons and lead to no conclusions.’

E.H. Carr’s remark in What is History? was intended as a warning for the historian who would see the past as a fortuitous sequence of events and mishaps without meaning or direction.

But it was taken up, seemingly, as the animating spirit behind much revisionist historiography of the 1970s and 1980s.

In a notable case, writers such as Conrad Russell and François Furet sought to challenge existing scholarship on the English and French revolutions. The then-ascendant Whig and Marxist-inspired interpretations had located the ultimate source of Europe’s early-modern convulsions in deep-seated social or juridical-constitutional conflict. But revisionists now attributed the genesis of these events to surface contingencies: clerical ambition and religious parochialism, personal stubbornness and court intrigue.

The high tide of historical revisionism, at least with regard to the bourgeois revolutions, has since passed.

Yale’s Steven Pincus has recently published a history of the so-called Glorious Revolution that echoes Marx’s interpretation in his critical journalism of 1850:

M. Guizot does not think it worth mentioning that the struggle against Louis XIV was simply a war of competition aimed at the destruction of French naval power and commerce; nor does he mention the rule of the finance bourgeoisie through the establishment of the Bank of England under William III, nor the introduction of the public debt which then received its first sanction, nor that the manufacturing bourgeoisie received a new impetus by the consistent application of a system of protective tariffs.

(Pincus, though, retains the requisite contempt for the significance of the Civil War and Interregnum. Their achievements, he suggests, were reversed entirely by the Restoration Stuarts.)

But the historical discipline as a whole  along with most of the humanities and social sciences   has retained a broad intellectual preference for the fragmentary and immediate. The social basis for this is diagnosed here  with some success  by Paula Cerni.

This movement has its theoretical touchstone in Nietzsche’s late jottings, in The Will to Power, against what he saw as arbitrary classification of the world’s untameable ontological flux:

The entire apparatus of knowledge is an apparatus for abstraction and simplification… In the formation of reason, logic, the categories, it was need that was authoritative: the need, not to “know,” but to subsume, to schematize, for the purpose of intelligibility and calculation… Knowledge and becoming exclude one another… A world in a state of becoming could not, in a strict sense, be “comprehended” or “known”; only to the extent that the “comprehending” and “knowing” intellect encounters a coarse, already-created world, fabricated out of mere appearances but become firm to the extent that this kind of appearance has preserved life  only to this extent is there anything like “knowledge.”

Hence the postmodernist historiographical dictum, courtesy of Foucault, which repudiated and reversed Carr’s methodological advice:

The forces operating on history are not controlled by destiny or regulative mechanisms, but correspond to haphazard conflict… the true historical sense confirms our existence among countless lost events, without a landmark of point of reference.

If this is how establishment thought treats its past, what of its present?

If no broad significance is attributed to the Earl of Strafford‘s execution, how is the emergence of a contemporary figure like John Yoo understood? Not well, presumably.

But that will be taken up in this blog’s next post.

The mirror of virtue

January 18, 2011

Clement Leibovitz’s The Chamberlain-Hitler Deal is available as a free PDF from the late author’s website. This book, now out of print, lays out documentary evidence that the British foreign-policy elite of the late 1930s (Chamberlain, Halifax, Henderson) were not merely fumbling, outfoxed appeasers. Rather, they deliberately aimed to satisfy Hitler’s expansionist ambitions and territorial claims, at the expense of the existing order in Central and Eastern Europe. This stance – salonfähig and with a strong social base – had the twin aims of guaranteeing Britain’s colonial possessions and destroying the Soviet Union.

The “resource curse” strikes again

January 13, 2011

Here’s a t-shirt, available for purchase online, and designed for the right-thinking college student or left-liberal activist.

It is decorated with a pious and glibly ignorant slogan that allows the confused wearer to regard himself as clever and subversive.

The slogan dates from early last decade. Back then a group of NGOs and celebrity activists, most with links to the U.S. Democratic Party via ‘progressive’ thinktanks, demanded the State Department declare Khartoum and its agents guilty of genocide (as Colin Powell obligingly did in 2004).

The G.W. Bush Adminstration was thus entreated to ‘do something about Darfur’ – usually involving sanctions or deployment of ‘peacekeepers’ – as it had in Afghanistan and Iraq.

One can only laugh, tragic though it all is.

The major exploration and production concessions in Southern Sudan and Sudan’s west (including parts of Darfur) are, just for now, held by several joint ventures: the Greater Nile Petroleum Operating Company, Petrodar and Petro Energy.

The dominant partner in each of these consortia is the China National Petroleum Corporation (CNPC); junior partners include the local firm Sudapet, Malaysia’s Petronas, India’s ONGC and Pakistan’s Sudapak.

CNPC operates the pipeline leading from the south to refineries in Khartoum and the export terminal at Port Sudan on the Red Sea.

Below is a USAID map of oilfields and operating concessions, by now slightly out-of-date:The ongoing referendum on South Sudanese secession will overturn this situation. The South Sudanese leadership has repeatedly declared ‘the necessity of revision of oil contracts’ between Khartoum and Asian producers.

US and European supermajors are the inevitable beneficiaries. Garang Diing Akuong, Juba’s Minister for Energy, spoke to Al Arabiya three days ago: ‘We are looking for companies from Europe and America. We are open to investment from all over the world – from the Middle East we wouldn’t mind.’

The South Sudanese energy ministry is being advised by representatives from the European Coalition on Oil in Sudan. That organization, based in the Netherlands, calls for ‘contract renegotiation’ in South Sudanese oilfields now that ‘the situation is different, [other] actors are in power and the stakes have changed.’

The group’s leader and advisor to Juba, Egbert Wesselink, openly favours the interests of Royal Dutch Shell, Total, Chevron and ExxonMobil against ‘the specter of state oil companies’ (CNPC in particular):

One new fear is that the home country governments of the [state-owned] companies will exercise diplomatic influence to undermine international efforts to secure peace and justice in the country, when such efforts contravene the interests of the Northern-dominated Sudanese government. China especially needs monitoring. Sudan is a major source of oil for China. As a veto-wielding member of the UN Security Council, China has sabotaged attempts to put pressure on Khartoum to end the Darfur genocide.

And elsewhere:

The pioneer companies Exxon and Shell were forced to bow out in 1984, after the outbreak of civil war. They eventually sold their rights in 1990, booking a $1 billion loss. Mid-1990s, the CNPC and Petronas Caligary from Malaysia, both fully state controlled, grasped this opportunity to invest in an oil-rich area that was out of bounds for the oil majors. They continue to dominate the scene. In 2003… ONGC from India stepped in, completing the prevailing position of Asian national oil companies in Sudan’s oil industry… And their Sudanese assets are highly profitable. They are not very likely to offer opportunities for newcomers to farm in on their existing assets. They are mostly state-owned and their investment decisions are made at a country level rather than a company level, making them resistant to shareholder activism… China, India and Malaysia have invested billions in the country, also outside the oil industry. They consider their relations with the country as economic, but also geo-strategic and energy-strategic successes that are worth defending.

Washington’s clutch of destabilizing measures (sanctions, ICC charges, arming of proxies in neighbouring states, military strikes, soft power, special envoys, peddling of influence with rebels, multi-party negotiations and brokered agreements, leading finally to the secession referendum) have finally levered open Sudan to investment by US firms.

The creation of a new state now presents ideal ‘opportunities for newcomers to farm in on’ existing concessions.

In 2010 Luka Biong Deng, Southern Sudan’s Minister for Presidential Affairs, announced a future review of all Khartoum’s contracts with foreign energy companies, on the grounds of excessive profit-taking, environmental despoliation and ‘a disregard for local communities’. Any alteration or nullification of contracts would remake ‘the competitive landscape for operators’, and thus open to European and North American majors ‘an avenue for investment and provide sought-after access to Sudan’s sizeable oil reserves.’

The cooperation of US commercial, intelligence, diplomatic and military elements in this enterprise has been plain to see. It is stated brazenly by US investment fund Jarch capital, which describes its strategy thus:

The Company considers investment opportunities in countries in Africa that are undergoing and may undergo sovereignty changes such as changes in international borders, and the creation of new countries out of current ones.

Personnel associated with The Company are experts on the geopolitics of these countries undergoing sovereignty change and establish key relationships with the leadership or potential leaders of the new states.

In recent years, Jarch has negotiated massive land deals throughout Southern Sudan. In 2009, the Financial Times reported that the company (on the board of which sits former State Department and Clinton Administration officials) had secured 400 000 hectares of land, in a deal with a notorious warlord, in oil-rich Unity province. The US company has courted military and civilian members of the secessionist Juba leadership, and claims (against official denials) that it already has secured concession rights in Southern Sudan. The company’s chairman, Phil Heilberg, is a curious figure, portrayed in Rolling Stone as a mixture of Cecil Rhodes and Tony Stark.

It is suggested that the State Department looks upon Heilberg and Jarch with disfavour, and that both are perhaps out of their league. At any rate, Heilberg’s network of associations make clear that the real players in Houston and Washington are operating quietly behind the scenes. The latter are more circumspect, but just barely so.

East Africa  – like much of the world, but especially its energy-rich regions – is thus the stage of a contest between the US and its rivals for raw materials, market share, territorial influence and military-strategic beachheads.

As the outflow of Chinese FDI inevitably expands, the US can no longer afford its old Open Door scruples and anti-colonial strictures. Suzerainty and direct territorial control are to substitute for competitive strength. Thus Washington’s recent appetite for the overthrow of governments, re-drafting of borders, creation of whole nations, and sequestering of energy reserves by military force.

Conventional economics journalism speaks frequently of a resource curse. By this it means the Dutch disease that supposedly afflicts countries with valuable natural-resource endowments: exchange-rate appreciation, hollowing out of domestic industry, vulnerability to swings in the terms of trade.

But there are more terrible consequences that could reasonably justify the term.

As Daniel Yergin wrote, oil has been the grand strategic prize for state elites ever since Winston Churchill, as First Lord of the Admiralty, ordered the conversion of Royal Navy vessels from coal power. Territories with proven oil reserves have subsequently been the objects of lustful lunges from Hitler through to Obama. The populations of such territories have indeed experienced their bounty as a curse. It is no accident that most of the world’s refugees today come from energy-rich countries subject to US chicanery and military intervention.

Among these, of course, are numbered former residents of Sudan, South Sudan and Darfur.

The curse will inevitably strike ever more wretched victims in the coming decades, as imperial powers stalk the earth, tussling over dwindling oil reserves. In these circumstances, not only marginal, high-cost wells and producers will become profitable. There will surely arise business opportunities for someone to produce and market t-shirts that read: If only [insert location of wearer’s country or region] didn’t have oil.

The designers (and wearers, if any) of the t-shirt picture above are mere idiots: ignorant but well-intentioned patsies. How to measure, on the other hand, the venality and cynicism of the forces arrayed in NGOs, activist groups, thinktanks and parliaments – those who know full well the economic and strategic importance of Sudan, Darfur and South Sudan, yet publicly advocate the intervention of Washington and the ‘international community’ as a disinterested humanitarian exercise?

Take the Australian Greens as representative. The party’s MPs have described ‘China’s behaviour in Sudan’ as driven by the ‘terrible imperative…the singular objective of cornering the world’s shrinking reserves of cheap oil.’ Yet the same terrible imperative seems not to apply to their own state; nor does their suspicion of diplomatic motives survive in that case. Party leader Bob Brown has been a noisy advocate for imposition of a no-fly zone over Darfur, oil embargoes, and the intervention of ‘peacekeeping forces’, including Australian troops. (The first two measures were, of course, applied to Iraq by the US and UK in the decade-long lead-up to the 2003 invasion, with Brown’s approval.)

Advocacy by the Greens and others of a ‘generous’ foreign policy, in preference to one based on calculated aggrandizement, has thus provided a convenient PR shroud under cover of which strategic goals could better be pursued, and Machtpolitik implemented.

The likes of Brown and his party, George Clooney and his NGO ilk, are the gentle humanitarian faces of a grotesque, unquenchable beast. In facilitating the carving up of Sudan, alongside the Chevrons and Shells, they have inflicted immense suffering on the local population. And they will do it again.

History Wars and property

January 9, 2011

The Australian History Wars seem for the moment to have lapsed into a kind of drôle de guerre or long twilight struggle. So now seems a good time to revisit an earlier exchange, the ferocity of which may have distracted from the combatants’ subtler argumentative manoeuvres.

I’ll proceed with the aid of a comparison. It was mentioned several weeks ago that, despite obvious differences, social conflict in 1830s-era Van Diemen’s Land shared certain features with that in present-day China.

This was because, I suggested, the two societies faced a shared stress: private acquisition of land and resources that weren’t previously the exclusive possessions of anyone, and which “non-owners” hadn’t hitherto been prevented from using or accessing.

Examination of this claim will, I think, help us better understand the polemic between historian Henry Reynolds and Keith Windschuttle.

Local governments, with the backing of central authority in Beijing and relevant provincial administrations, have been the primary actors in contemporary China’s breakneck transfer of communal and state-owned assets to private ownership. Accordingly, much of the rural popular opposition to displacement, home demolitions, engrossment of agricultural tracts, etc. has been directed against governmental authority.

This is turn has led some foreign observers to present such events as a case of heroic peasants and smallholders uniting ‘across villages and even provincial borders to fight for private land rights.’ The peasants are imagined to be ‘reclaiming and privatising the stolen lands…stolen by officials in their city government.’

Now, it’s obviously true that government personnel are guilty of corruption, patronage, asset-stripping, repression and brute theft. But the notion that Chinese peasants and employees are fighting, either consciously or unwittingly, to defend private ownership has little to uphold it. No credible voice supports such claims, which sound like a Heritage Foundation fantasy.

Even a mainstream journalist, in the linked article, acknowledges that the rebellious farmers merely seek to retain direct, non-market access to their means of subsistence and shelter. Withdrawal of such access will otherwise compel them, on pain of extinction, to seek income from paid employment, or to rely on “charity.”

But, more often that not throughout history, simple social-property conflicts of this type have been overlaid by ethnic and religious divisions, and their fundamental nature has therefore remained obscure both to contemporary actors and historical analysts.

Frontier conflict in colonial Tasmania, for example, is frequently portrayed as a matter of rival groups (“black” and “white” people, or European and Indigenous people), each with an incompatible claim to exclusive possession of some land resource. One group is then supposed to have infringed the property rights of another.

Just as this is a misunderstanding of contemporary China, I want to insist that this is also the wrong way – philosophically, empirically and politically – of looking at frontier conflict in colonial Tasmania.

Members of a population may defend their right to use certain resources without thereby making a claim of property in them.

This is not a popular argument. The assertion that Aboriginal Tasmanians did not hold proprietary rights to land is often associated with racists and reactionaries.

Nearly a decade ago, the right-wing ideologue Keith Windscuttle published The Fabrication of Aboriginal History, aiming to show that whatever violence did occur in Van Diemen’s Land during the 1820s and 1830s was unrelated to territorial disputes, being instead a simple matter of incentives. The ‘timeless stimulus’ of greed, the ‘spirit of mammon’, and the lure of luxuries like flour, sugar, tea, tobacco and blankets, led Aboriginal Tasmanians to steal from the colonists. As the indigenous people ‘had no sanctions against the murder of anyone outside their immediate clan’, they indulged in this too. Where settlers retaliated, on the other hand, this was within ‘the restraints of their culture and religion’.

Here was a conscious application of the criminological work of Gary Becker, the University of Chicago economist. Because hunter-gatherer society possessed and could produce little material wealth, the potential return to non-criminal activities (‘legal forms of acquisition’) was meagre. This – together with the ‘leniency’ of colonial authorities – meant that theft, murder and crime had a low opportunity cost. Thus Aboriginal Tasmanians attacked shepherds and killed livestock not because settlers occupied hunting grounds, shot at intruders, trampled vegetation and disrupted patterns of subsistence and kinship. Rather, the motivation was a desire for trinkets and baubles.

This absurd argument was attacked by historian Henry Reynolds in “Terra Nullius Reborn”, part of Robert Manne’s edited collection, Whitewash: On Keith Windschuttle’s Fabrication of Aboriginal History.

Reynolds’s essay is excerpted here:

[Windschuttle] tells us that the notions of the exclusive possession of territory and the defence of it either by law or force “were not part of the Aborigines’ mental universe”. In short, the Tasmanians “did not own the land”. The concept of property was “not part of their culture”.

Much follows from this assertion. The incoming Europeans were not taking land belonging to someone else. They introduced tenure to a place where none had previously existed. Aboriginal attacks on the settlers had nothing to do with resisting encroachments on their land because they had no sense of trespass. In the absence of such motivation they must have been spurred to violence by baser, more personal motives – by the desire for vengeance and for plunder. Therefore the Tasmanians were not at war with the settlers. They were criminals – burglars and cut-throats, not warriors or patriots.

Let’s examine what Reynolds is saying. One must, he suggests, hold either that (1) Tasmanian society believed in ‘exclusive possession of territory’ (i.e. property in land) and its members fought to protect their territory or that (2) acquisition of land by European settlers was just, and the population submitted to it. If not (1), then inevitably (2).

In other words, Reynolds would have it that one must agree with either Windschuttle or Reynolds. This is logically confused.

To refute Windschuttle’s claims that ‘Aboriginal attacks on the settlers had nothing to do with resisting encroachments’ and were based on the ‘desire for plunder’, it is not necessary to prove the existence of property or land ownership. Defence of one’s right to use land, remain attached to a place, or ‘live on country’ without interference, does not require or entail a claim to title or tenure.

Ownership confers a bundle of rights over spaces and things – prerogatives of the possessor include the right to use, right to transfer etc. But it is not the case that all rights of use are ownership rights, or that the right to persist with an activity implies property rights in the material which that activity uses and the space in which it takes place.

Reynolds is thus guilty of making a faulty inference from the premise that (1) some people believe they have some right to use some external resource – in this case land – to perform some activity – subsistence, shelter, religion – that they believe rightfully protected against interference to (2) these people believe they own that spatial realm, and all its contents, within which the activity takes place.

This is an unfortunate lapse. Unless all fundamental rights are ownership rights, the right to do doesn’t require the right to own that which enters into the doing.

Reynolds writes as though he believes, as Aboriginal Tasmanians surely did not, that non-owners have no right to an external resource X, and may not block the greedy acquirer from the un-owned thing X, which may rightfully be seized. On this logic, every un-owned watering hole and hunting ground available may justly be appropriated by whoever requires them for his private drinking, swimming, stock raising and wool growing, so long as the acquisitor is ‘not taking land belonging to someone else’. (But, for even the most forceful advocates for private property, acquisition must meet the Lockean proviso that private appropriation be without ‘prejudice to any other man, since there was still enough and as good left, and more than the yet unprovided could use.’)

Reynolds – and we – may costlessly concede Windschuttle’s proposition about the absence of already-existing property claims, without thereby accepting the legitimacy of land acquisition.

Then there arises the question of historical accuracy. Reynolds’s empirical claim rests largely on the argumentative error debunked above: by resisting encroachment, the Tasmanians thereby evinced a belief in exclusive property. We have just seen why this need not be the case. But the matter deserves further examination, so I will address it, along with the contemporary political implications of this historiographical debate, in a future post.

Dealing with critics

January 7, 2011

John Milton responds to ‘a phlegmy clod of an antagonist…a paltry solicitor’ who had ‘cast the gracious eye of his duncery upon the small deserts’ of Milton’s Doctrine and Discipline of Divorce 

Now therefore to your attorney, since no worthier an adversary makes his appearance, nor this neither his appearance, but lurking under the safety of his nameless obscurity; such as ye turn him forth at the postern, I must accept him; and in a better temper than Ajax do mean to scourge this ram for ye, till I meet with his Ulysses.

He begins with law, and we have it of him as good cheap as any huckster at law, newly set up, can possibly afford, and as impertinent; but for that he hath received his handsel. He presumes also to cite the civil law, which I perceive by his citing, never came within his dormitory: yet what he cites, makes but against himself…

Yet can he not leave this argument, but he must needs first show us a curvet of his madness, holding out an objection, and running himself upon the point…[His] own confession declares the weakness of this argument, yet his ungoverned arrogance could not be dissuaded from venting it…

His arguments are spun; now follows the chaplain with his antiquities, wiser if he had refrained, for his very touching aught that is learned soils it, and lays him still more and more open, a conspicuous gull…

I mean not to dispute philosophy with this pork, who never read any. But I appeal to all experience…Came this doctrine out of some school, or some sty? […The] dull argument itself burns too for want of stirring; and yet all this burning is not able to expel the frigidity of his brain…

I believe him heartily: for how should he, a serving-man both by nature and by function, an idiot by breeding, and a solicitor by presumption, ever come to know or feel within himself what the meaning is of “gentle?”…

Only in the passage following I cannot but admire the ripeness and the pregnance of his native treachery, endeavouring to be more a fox than his wit will suffer him…as a country hind, sometimes ambitious to show his betters that he is not so simple as you take him, and that he knows his advantages, will teach us a new trick to confute by…a mere and arrant pettifogger, who lately was so hardy, as to lay aside his buckram-wallet, and make himself a fool in print, with confuting books which are above him… But what should a man say more to a snout in this pickle? What language can be low and degenerate enough? […What] a right handicraftsman he is of petty cases, and how unfit to be aught else at highest, but a hackney of the law…Weigh, gentlemen, and consider whether my affirmations, backed with reason may hold balance against the bare denials of this ponderous confuter, elected by his ghostly patrons to be my copesmate…

Proceeding on to speak of mysterious things in nature, I had occasion to fit the language thereafter; matters not, for the reading of this odious fool, who thus ever, when he meets with aught above the cogitation of his breeding, leaves the noisome stench of his rude slot behind him, maligning that any thing should be spoke or understood above his own genuine baseness; and gives sentence that his confuting hath been employed about a frothy, immeritous, and undeserving discourse. Who could have believed so much insolence durst vent itself from out the hide of a varlet, as thus to censure that which men of mature judgment have applauded to be writ from good reason? But this contents him not; he falls now to rave in his barbarous abusiveness…

I say again, that I abominate the censure of rascals and their licensers. With difficulty I return to what remains of this ignoble task, for the disdain I have to change a period more with the filth and venom of this gourmand, swelled into a confuter; yet for the satisfaction of others I endure all this….Barbarian, the shame of all honest attorneys! why do they not hoist him over the bar and blanket him?

[…At] last, and in good hour, we are come to his farewell, which is to be a concluding taste of his jabberment in law, the flashiest and the fustiest that over corrupted in such an unswilled hogshead….I have now done that, which for many causes I might have thought could not likely have been my fortune, to be put to this underwork of scouring and unrubbishing the low and sordid ignorance of such a presumptuous lozel. Yet Hercules had the labour once imposed upon him to carry dung out of the Augean stable. At any hand I would be rid of him: for I had rather, since the life of man is likened to a scene, that all my entrances and exits might mix with such persons only, whose worth erects them and their actions to a grave and tragic deportment, and not to have to do with clowns and vices. But if a man cannot peaceably walk into the world, but must be infested; sometimes at his face with dors and horseflies, sometimes beneath with bawling whippets and shin barkers, and these to be set on by plot and consultation with a junto of clergymen and licensers…And what defence can properly be used in such a despicable encounter as this, but either the slap or the spurn? If they can afford me none but a ridiculous adversary, the blame belongs not to me, though the whole dispute be strewed and scattered with ridiculous. And if he have such an ambition to know no better who are his mates, but among those needy thoughts, which, though his two faculties of serving-man and solicitor should compound into one mongrel, would be but thin and meagre, if in this penury of soul he can be possible to have the lustiness to think of fame, let him but send me how he calls himself, and I may chance not fail to indorse him on the backside of posterity, not a golden, but a brazen ass. Since my fate extorts from me a talent of sport, which I had thought to hide in a napkin, he shall be my Batrachomuomachia, my Bavius, my Calandrino, the common adagy of ignorance and overweening: nay, perhaps, as the provocation may be, I may be driven to curl up this gliding prose into a rough Sotadic, that shall rhyme him into such a condition, as instead of judging good books to be burnt by the executioner, he shall be readier to be his own hangman. Thus much to this nuisance.

The grass is always greener on this side of the fence

January 5, 2011

In his book Sour Grapes, Jon Elster used the following story (Aesop’s fable of the Fox and the Grapes) to illustrate a kind of irrationality he called ‘adaptive preference formation’, in which people cease to desire what they can’t get:

One hot summer’s day a Fox was strolling through an orchard till he came to a bunch of Grapes just ripening on a vine which had been trained over a lofty branch. “Just the things to quench my thirst,” quoth he.

Drawing back a few paces, he took a run and a jump, and just missed the bunch. Turning round again with a One, Two, Three, he jumped up, but with no greater success.

Again and again he tried after the tempting morsel, but at last had to give it up, and walked away with his nose in the air, saying: “I am sure they are sour.”

It occurs when a person lets the probability they assign to the various states of the world influence their evaluation of (i.e. the utility, desirability or rank order they attach to) each of those states.

With sour grapes, what is desirable depends on what is deemed possible: A is preferred to B because A is available and B is not.

The proverbial fox adjusts its preferences over the set of possible outcomes (have grapes, don’t have grapes) to the apparent attainability or feasibility of each outcome. He can’t reach the grapes so decides he doesn’t want them because they must be sour anyway.

More generally an irrational agent, finding that in deprived circumstances its desires can’t be satisfied, treats the best state it’s capable of attaining as the best that can be conceived.

This is a variety of cynicism which makes a virtue of necessity, as a way of avoiding (futile) frustation.

It can be expected to be more prevalent in times of reaction and political demoralization, like our own.

Thus Albert Hirschman, in his Rhetoric of Reaction, identified the ‘futility thesis’ as that which suggested attempts at social change were destined for failure, and therefore should be avoided. This argument typically carried, Hirschman said, a certain ‘refined sophistication’.

Polite opinion (official and media) thus no longer finds it necessary to proclaim that capitalism is superior to socialism, for today there is only one conceivable social system. As the saying goes, there is no alternative: no choice to be made.

What is to be said about this outlook?

Many people seem to understand cynicism as chronic nay-saying: an excessive, querulous devotion to scorn, criticism and debunking. (I’m sometimes accused of this fault myself.)

But cynicism (I prefer to think!) actually involves the opposite practice: a kind of rationalization or dissonance reduction.

The cynical agent reconciles a conflict between ideal and reality either by (a) forswearing beliefs or repudiating principles; or (b) adjusting perceptions of reality so that the latter becomes consistent with ideals.

The ancient Cynic is an ethical figure, dedicated to ruthless criticism of all that exists. The cynical person, on the other hand, seeks accommodation with the existing state of affairs, and is without moral or intellectual integrity.

Peter Sloterdijk is not a name to conjure with, either politically or philosophically, but his Critique of Cynical Reason contains a good description of this phenomenon:

The ancient world knows the cynic (better: kynic) as a lone owl and as a provocative, stubborn moralist. Diogenes in the tub is the archetype of this figure. In the picture book of social characters he has always appeared as a distance-creating mocker, as a biting and malicious individualist who acts as though he needs nobody and who is loved by nobody because nobody escapes his crude unmasking gaze uninjured.

[..]

[Modern] cynics…are no longer outsiders…

[This] is the essential point in modern cynicism: the ability of its bearers to work – in spite of anything that might happen, and especially, after anything that might happen. The key social positions in boards, parliaments, commissions, executive councils, publishing companies, practices, faculties, and lawyers’ and editors’ offices have long since become a part of this diffuse cynicism. A certain chic bitterness provides an undertone to its activity. For cynics are not dumb, and every now and then they certainly see the nothingness to which everything leads. Their psychic apparatus has become elastic enough to incorporate as a survival factor a permanent doubt about their own activities. They know what they are doing, but they do it because, in the short run, the force of circumstances and the instinct for self-preservation are speaking the same language, and they are telling them that it has to be so. Others would do it anyway, perhaps worse. Thus, the new, integrated cynicism even has the understandable feeling about itself of being a victim and of making sacrifices…

It is afflicted with the compulsion to put up with pre-established relations that it finds dubious, to accommodate itself to them, and finally even to carry out their business. In order to survive, one must be schooled in reality. Of course. Those who mean well call it growing up, and there is a grain of truth to that.

Alexander_and_Diogenes

The year in pictures

January 2, 2011