Duty Calls

One part of being an FSO is travel. Lots of it. And, for the balance of the week, duty calls us to another corner of the Near Abroad. We will not have access to the Internet nor time to post even if we had it.

Regular posting will return at the week-end.

See you then.

Coleman to Kofi: Time to Go

Senator Norm Coleman of Minnesota, who lead the charge in the Senate for investigations into the UN's Oil-For-Food Scandal, has called on Kofi "Hell no, I Won't Go" Annan to resign. In doing so, the Senator becomes the first high-level American politician to state the obvious after the revalations of the Volcker Report.

The MSM, of course, lept to Annan's defense immediately, with both the Washington Post and the BBC running banner headlines that state baldly that the Report "clears" Annan. Read the report for yourself and make your own conclusions: you may find it here.

We reprint the Senator's statement in full because it captures the essence of the case against Annan beautifully:

March 29th, 2005 - “The Oil-for-Food scandal has now, through the U.N.’s own process of investigation, reached the highest levels of the U.N. The report of Paul Volcker’s Independent Inquiry Committee has revealed what I concluded many months ago through the initial investigation of the Permanent Subcommittee on Investigations -- Kofi Annan is responsible for the failed management that resulted in the fraud and abuse of the Oil-for-Food Program. His lack of leadership, combined with conflicts of interest and a lack of responsibility and accountability point to one, and only one, outcome: His resignation.

The Volcker Report will show that Kojo Annan lied. He lied to investigators. He lied to the public. And, worse, he lied to his father. While Kofi Annan may not be responsible for the acts of his son, he is responsible for failing to reveal a serious conflict of interest. Specifically, he permitted the U.N. to give massive contracts to the company that employed his son. This egregious conflict of interest is simply inexcusable and further damages the credibility of the organization he leads.

In addition, the revelation that the U.N. has agreed to pay the legal fees of Benon Sevan is beyond comprehension. That the U.N. would pay for his defense, and finance it through the very institution he abused, is immoral and unethical. In my opinion, there is probable cause to criminally charge Mr. Sevan for his actions. The fact that the U.N. is reimbursing Mr. Sevan with money that rightfully belongs to the Iraqi people is outrageous.

The U.N. is in dire need of reform. That reform, which ranges from the structure of the Security Council to the internal auditing systems, will take strong leadership to make it happen.

Mr. Annan is incapable of providing that leadership. His credibility has been seriously undermined by his conflicts of interests and poor management of the Oil for Food program. While Mr. Annan’s reform recommendations made in the last several days are admirable, and an appropriate starting point for discussion, there is no possible way he can be the person responsible for leading the debate over the improvement and implementation of any U.N. reforms. The arrow that has been shot at the heart of his leadership did not come from the quiver of Congress, but his own U.N. investigators.

I firmly believe in the role of a strong and vibrant United Nations in the world. I have been hopeful that Mr. Annan would put the interests of the U.N. ahead of his personal interest. To date, he has failed to do so. My hope is that the latest findings from Paul Volker will hasten Mr. Annan’s departure.”

The Schiavo Case, Part III

To say we've received our fair share of hate mail would be an understatement. Since our original posting, in passing, on this tragic case, we have received more than our fair share. Enough that we feel, yet again, obligated to re-state our position and explain ourselves.

First, as to the lawyer-haters, let us just kindly suggest, in the manner of the most holy Brian, that you all please f@#! off. We've been lawyers for years now, and we have not met more thoughtful, intelligent and decent people in our lives. By and large, the lawyers and judges it has been our privilege to know are hard-working and damn fine human beings. To those who think they're clever recycling the same stale old lawyer jokes for the 145th time, we beg you to reconsider your sense of humor.

No, we do not think we're better than you. Nor do we think we and only we are fit to rule the country. What we do think, however, is that our legal system is precious. We get offended, mightily so, when poseurs sound off all too easily about how this and that legal judgment should be ignored just because it suits them.

Let us admit at the outset that our system is flawed. The lawyers are flawed, judges are flawed, trials are flawed and justice, sweet justice, while always the ideal, is often fallen well short of. Our legal system is a system of human beings. Of course it is flawed. We'd be flaming idiots to ever say otherwise.

However, in the history of human affairs, no system has come closer to the ideal of justice than our common law system.

In that system, the trier of fact is the trial court. Appeals courts, all the way up to the Supreme Court, can argue the law and its application, but they cannot (except in rare instances) re-try the facts. For hundreds of years now, we have relied on the lowest courts, those closest to the controversy, to gauge witness demeanor, evidence reliability and party honesty. Once those facts are set, they are set in stone.

None of which is to say that they always get it right. Questions of right and wrong, while relevant, should never be confused with a simple question of legal and illegal.

In this case, the trier of fact found that, as a matter of legal fact, Terri Schiavo would have not wished for extraordinary means to be employed to keep her alive. This decision was reached after a fair trail, in which all parties had an opportunity to be heard.

At the end of the day, someone must make a decision, and our statutory schemes often put that decision in the hands of a judge. What the critics don't seem to realize is that courts literally decide life and death issues every day. What perhaps our perspective as lawyers does give us an advantage in is not how well we understand the relevant standard of review, but how well we understand that mundane fact.

Every day, from local county courts to the highest court in the land, people's lives and livelihoods are decided upon. (We will never forget the tears and the shaking hands of a small business owner who once told us on the eve of trial that "over 50 people's paychecks depend on us.") From the death penalty to probate courts to products liability litigation, courts and juries are deciding every day, with due process and according to procedure, what people's future lives will look like.

It is in this sense that the Schiavo case, while spectacular, is not really that dissimilar from the thousands of others on the docket.

Part of what binds us together is respect for the rule of law. There is nothing "conservative" whatsoever in people making demands of Governor Bush that he "do something" and save the day. The man is governor of a state of the United States of America; he is not there to simply enforce the laws he finds personally acceptable.

Believe you me, we FSOs see plenty of God-forsaken corners of the Earth where the law is what the governing elites want it to be. We certainly do not want to go there, no matter how noble the original cause, for there lies the temptation and the disaster that is tyranny.

We claim no special wisdom. But when speakers are preaching sedition on Fox News it is time to say enough.

The law is the law is the law.

The U.N. Report, Part II: Meet the New Boss

Last time, we discussed the “Freedom From Want” and the “Freedom From Fear” sections of U.N. Secretary General Kofi Annan’s report on where the U.N. wants to go in the next 10 years and how it aims to get there. Today we want to focus more on the latter portion of the “Freedom From Fear” section before moving on to “Freedom to Live in Dignity,” and, finally, the reform section entitled “Strengthening the United Nations.”

Freedom From Fear, Part II

Speaking to the unique threat posed by nuclear weapons, the report (quite bravely) acknowledged both that the Treaty on the Non-Proliferation of Nuclear weapons is suffering a crisis of confidence, in part due to its age, and that the Conference on Disarmament suffers from a severe lack of “relevance resulting in part from dysfunctional decision-making procedures and the paralysis that accompanies them.”

When the U.N. Secretary General speaks of dysfunctional systems leading to paralysis—essentially the kind of critique American conservatives have been making for years regarding multi-lateral institutions and treaties—you know that there is a new wind blowing. That much is to be welcomed. We suppose it is a type of victory when the U.N. can speak openly of the kinds of issues that have concerned most American observers since at least the ambassadorship of Daniel Patrick Moynihan.

Old habits die hard, however, so the first suggestion given by Annan is not stricter scrutiny of regimes like Iran or Pakistan, but, instead, a call for “nuclear-status States” to enter into new agreements to prevent the further spread of nuclear technology. After that short interlude, the Report speaks to the issue of Iran, in general terms, suggesting:

First, the verification authority of the International Atomic Energy Agency (IAEA) must be strengthened through universal adoption of the Model Additional Protocol. Second, while the access of non-nuclear weapon States to the benefits of nuclear technology should not be curtailed, we should focus on creating incentives for States to voluntarily forego the development of domestic uranium enrichment and plutonium separation capacities, while guaranteeing their supply of the fuel necessary to develop peaceful uses. One option is an arrangement in which IAEA would act as a guarantor for the supply of fissile material to civilian nuclear users at market rates.

Here we see the “legal right” issue inherent in the Iran dispute come to the fore. The problem, as the Report correctly and succinctly notes, is that all parties to the Non-Proliferation Treaty have a right—recognized by all signatories and including the United States—to use nuclear technology for peaceful purposes. It is this “legal right” issue that puts the U.S. at a disadvantage in the negotiations with Iran since the government of the Islamic Republic can rightly claim that its stated goal is within the legal framework of the treaty.

Of course, this claim cannot be merely taken at face value and has to be viewed within the specific context of that nation: it is literally swimming in a sea of oil, has no real demonstrable need for civilian nuclear power, has been caught out by the IAEA lying, cheating and dissembling and, most critically, its political leaders have spoken openly about the need for an “Islamic Bomb” to balance the power of Israel and the United States in the Middle East.

Given those circumstances, even the Germans seem to realize that Iran must not be allowed to go forward with its obvious plans. And, given the Report language quoted above, it appears that the U.N. is similarly concerned. Such concern, however, is balanced by a strong desire to keep the legal framework of the Non-Proliferation Treaty in tact. Thus, the idea of strengthening the inspection powers of the IAEA along with a ban on self-production of nuclear fuels with a supply assured by the IAEA itself for civilian purposes.

This balanced approach is one that the United States should not dismiss lightly. Properly implemented, this approach could accomplish our aim of keeping Iran nuclear-free while, at the same time, avoiding the international condemnation that would come if we were to insist, as we are doing now, that the Islamic Republic give up rights under the Treaty.

However, at the same time, it is beyond crystal clear that the United States cannot, under any circumstances, allow a regime with known and obvious ties to Islamic terrorists, which holds regular and officially-sanctioned “Death to America” rallies to develop a bomb. The U.S. should follow the U.N.’s chartered course here if—and only if—it receives assurances that at the first sign of non-compliance the U.N and the other members of the Security Council will authorize the use of force to end the threat.

At the end of the day, when stacked against the actual physical national security of the country, no President can sit by and watch Tehran game the U.N. system the same way Saddam Hussein did, and certainly not again with the active support of corrupt U.N. officials. The U.N. must certainly know this. There is no harm is giving it a chance to reform its ways and work properly in this arena, so long as “one chance and one chance only” is our watchword. A tattered treaty and another round of international controversy would result from our going forward “unilaterally,” but, again, this matters little stacked against the threat posed to the U.S. by a nuclear-armed Islamic Fascist regime.

From these specifics, the Report goes on to discuss the U.N.’s core function: the prevention of war. Here, the Report has a lot of decent suggestions, including beefing up developed countries’ contribution to peacekeeping operations in the form of actual troops on the ground. There is no doubt that more American, German and British forces would go a long way to relieving some of the chronic tragedies that result when the U.N. sends poorly trained and largely illiterate troops from profoundly backwards countries into places like the Congo. The Report’s hope to work with regional grouping like the European Union to provide regional muscle is reflective of the U.N.’s need in this regard.

Still, the Report is far too easy on the U.N. in this regard. Speaking to the large number of peacekeeping troops’ crimes on his watch, Annan announces that:

I am especially troubled by instances in which United Nations peacekeepers are alleged to have sexually exploited minors and other vulnerable people, and I have enacted a policy of “zero tolerance” towards such offences that applies to all personnel engaged in United Nations operations. I strongly encourage Member States to do the same with respect to their national contingents.

It’s good to know that the Secretary General of the United Nations and Principal Johnson of Whitmore Middle School have the same “policy,” but it seems to us that in both instances such a policy simply represents the abdication of responsibility in favor of a bland one-size-fits-all and its-not-really-our-fault “policy.” We realize who the U.N has to rely upon to keep the peace in certain instances, but at the end of the day the U.N is responsible for its troops. If it is not, or cannot, it has no business fielding troops in the first place.

It’s already bad enough that a sure sign of the fragility of one’s life is only strengthened if the blue flag is fluttering over one’s refugee camp. This weak “policy” won’t do anything to change that lamentable fact.

Until and unless the world community, including the world’s press, holds the U.N to the same standard it holds the United States, peacekeeping will continue to be hobbled by poor troops and even poorer execution.

Finally, this section comes to a close regarding the most critical issue of all: when the U.N will authorize the use of force. This section is fascinating in that it appears to be a sort of “after action” report regarding the U.S. decision to go to war in Iraq. We quote the report at length:

122. Finally, an essential part of the consensus we seek must be agreement on when and how force can be used to defend international peace and security. In recent years, this issue has deeply divided Member States. They have disagreed about whether States have the right to use military force pre-emptively, to defend themselves against imminent threats; whether they have the right to use it preventively to defend themselves against latent or non-imminent threats; and whether they have the right — or perhaps the obligation — to use it protectively to rescue the citizens of other States from genocide or comparable crimes.

123. Agreement must be reached on these questions if the United Nations is to be — as it was intended to be — a forum for resolving differences rather than a mere stage for acting them out. And yet I believe the Charter of our Organization, as it stands, offers a good basis for the understanding that we need.

124. Imminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign States to defend themselves against armed attack. Lawyers have long recognized that this covers an imminent attack as well as one that has already happened.

125. Where threats are not imminent but latent, the Charter gives full authority to the Security Council to use military force, including preventively, to preserve international peace and security. As to genocide, ethnic cleansing and other such crimes against humanity, are they not also threats to international peace and security, against which humanity should be able to look to the Security Council for protection?

126. The task is not to find alternatives to the Security Council as a source of authority but to make it work better. When considering whether to authorize or endorse the use of military force, the Council should come to a common view on how to weigh the seriousness of the threat; the proper purpose of the proposed military action; whether means short of the use of force might plausibly succeed in stopping the threat; whether the military option is proportional to the threat at hand; and whether there is a reasonable chance of success. By undertaking to make the case for military action in this way, the Council would add transparency to its deliberations and make its decisions more likely to be respected, by both Governments and world public opinion. I therefore recommend that the Security Council adopt a resolution setting out these principles and expressing its intention to be guided by them when deciding whether to authorize or mandate the use of force.

Of course, designing a procedure for use when the Security Council comes to a common view is one thing; how to deal with a deadlock is something else entirely. There is nothing new here except a call for Council members (read that as: The United States) to re-commit themselves to a protocol whereby it recognizes that the Council, and only the Council, can authorize the use of pre-emptive military force.

To be blunt, this simply is not going to happen. While the other nations on the Council no doubt will enjoy watching the U.S. out on the limb on this one, the cold fact is that none of them—not one—would be willing themselves to surrender their sovereign war-making ability over to the others.

Therefore, we think it would be wise (and also quite enjoyable) were we to call the “international community’s” bluff here and advocate for this change, sure in the knowledge that Russia, China and France would never agree to it. To do otherwise would allow Europe another cheap “Kyoto moment” whereby they can sign onto high-sounding principles knowing full well that the U.S. will carry their standard into battle for them.

Freedom to Live in Dignity

By far and away the most depressing section of the report, here Annan bemoans the gap between the rule-of-law and human rights protections on the books and those found in actual practice. That’s a fair enough description of our current situation, but the proposed remedy is ludicrous.

Annan’s argument here is that since there exists such a profound gap between word and deed there is an urgent need for more………words. New international treaties, new international agreements and, best of all, the International Criminal Court are all proposed as remedies to the situation. Meanwhile, the actual hard work done by some Member States, like the U.S. and Britain, to bring the culture and instinct of the rule-of-law to faraway places is completely ignored.

Instead, war crimes tribunals, like those in Rwanda and the former Yugoslavia are praised. These boondoggles represent the worst in U.N. thinking on human rights: long after the graves are filled, a new bureaucracy is created that will prosecute 150 people over the course of 15 years, costing billions of dollars. It is simply amazing that the Secretary General continues to hold up these institutions as models of success. The “mixed tribunal” of Sierra Leone was created largely because the international community had arrived at a consensus that the complete failures of the Rwandan and Yugoslav tribunals could not and should not be repeated. Yet, somehow we’re supposed to be happy that the I.C.C. will “continue” their work.

As for “human rights,” it appears that as a reward for such effective work in the past, the High Commissioner for Human Rights is to be given more influence and more resources. (Because the international left really just doesn’t have enough institutional support at the U.N., we suppose.)

This section is literally D.O.A. and stands no chance for American support whatsoever. It’s grotesque head-in-the-sand approach and exultation of form over substance ensures that this subject area, the United Nations’ supposed strength, will continue to be nothing more than an embarrassment in the future.

Strengthening the United Nations

While this section speaks interestingly of reforms to both the General Assembly and the Secretariat, the central portion of the recommendations is a reform of the Security Council itself. Annan proposed two options, Option A and Option B to effect such change. Under Option A, six more permanent members would be created, though without veto, along with three new non-permanent two-year seats to be divided among the “regions.”

Why “regions” are important to the U.N. is an institutional mystery that has caused much harm over the years. There is no real reason why continents are critical as an organizing principle. There is especially no reason to think that, as under Option A, Europe’s representation should go from 3 countries to 4! In fact, insofar as the European Union is now saying that it seeks a “common foreign policy”, the number of seats, if changed at all, should be reduced from 3 to 1.

Option B is a bit more palatable. Under its plans, no new permanent seats would be created, but a new “middle-tier” of eight renewable four-year seats would be. However, we are at a loss to explain what these “middle-tier” states would gain that is different from the current situation. While Option A seems to be designed to give the Council even more votes to use against the United States, Option B seems to be simply reform for reform's sake with no real purpose.

The highlight of this section, however, is the proposed replacement of the Human Rights Commission to a new Human Rights Council:

182. Yet the Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole.

183. If the United Nations is to meet the expectations of men and women everywhere — and indeed, if the Organization is to take the cause of human rights as seriously as those of security and development — then Member States should agree to replace the Commission on Human Rights with a smaller standing Human Rights Council. Member States would need to decide if they want the Human Rights Council to be a principal organ of the United Nations or a subsidiary body of the General Assembly, but in either case its members would be elected directly by the General Assembly by a two-thirds majority of members present and voting. The creation of the Council would accord human rights a more authoritative position, corresponding to the primacy of human rights in the Charter of the United Nations. Member States should determine the composition of the Council and the term of office of its members. Those elected to the Council should undertake to abide by the highest human rights standards.

It is good news that the U.N. recognizes that the current system is a joke. But, what is to replace it? So long as mere election to the body by the General Assembly—a body which is itself made up by a majority of states that do not recognize nor enforce decent standards of human rights—we can expect nothing more than more of the same.

In fact, this proposal could stand in for the report as a whole: it recognizes the problem but cannot, for political reasons, reform itself in such a way as would enable it to grapple with the problems. Instead, the whole range of former folly—regionalism, one-country-one-vote, “human rights” as left-wing political programme, increased bureaucracy over actions—run rough throughout the report, dooming it to failure even if it were to be unanimously accepted.

If this report is the best the U.N can come up with in the face of the loss of confidence it it as an institution by the world’s leading democracy, founding member, host nation and most important contributor, then perhaps it is further gone than even American conservatives have guessed.