Monday, September 17, 2007

Does Universal Jurisdiction Exist? Yes and No.

Michael and Richard, welcome to Poor Richard's Almanac--Mark Anderson.

Amnesty International has collected case law from twelve separate nations grounded in claims to universal jurisdiction. Like most major issues in international law, universal jurisdiction is highly contested. There are many who favor it, even see it as the bare minimum for a civilized world, and many others who oppose its institution. At present, an objective observer would have to say that it is frequently and consistently being asserted by many different states and many different contexts. It has sometimes been enforced, sometimes defied, and sometimes abandoned by the states that claim it. In other words, it is frequently claimed, sometimes enforced, and sometimes opposed, often for political rather than legal reasons.

It is simply counterfactual to assert that such a highly contested and occasionally enforced doctrine of international law does not exist. There are legal schools of thought that oppose it. For those schools to assert that it "does not exist" is an assertion of a highly-contested interpretation they continue to actively promote, it is anything but an assertion of fact.

Lastly, isn't there a danger that opposition to universal jurisdiction retroactively challenges the legitimacy of Nuremberg and Tokyo War Crimes Trials? Why would the Geneva conventions apply to Axis powers, but not to the Allies? Why would they apply to enemies of the U.S., but not to the U.S. and its allies today? Isn't the alternative an effective concession that these were cases of victor's justice--that international law absent universal jurisdiction is a state of exception run out of Washington D.C. and the U.N. Security Council?

Tuesday, September 04, 2007

The GOP Fairness Doctrine Playbook

This is a response to a blogpost by Jay Rosen, which in turn responded to a post by Glenn Greenwald.

Dear Jay,
As usual, a very thought-provoking post. Doesn't this reading, though, require us to consider Warren Strobel's approach to be outside the playbook of status quo journalism? And is that really the case? I would say both yes and no.

Yes, there is a new politically correct celebrity journalism playbook that has become the norm over the last fifteen years or so that Strobel doesn't follow. No, in that his type of investigative journalism is exactly the job that even politically correct GOP fairness doctrine journalists still claim they are about when they go to work.--except that they're not. I define the GOP fairness doctrine as the journalistic rule that even fictional statistics and verifiably revisionist history must be treated with grave seriousness if they come from the politically and ideologically powerful GOP.

We might ask: Well what is so alternative about checking to see if what your sources tell you is true or not? Why shouldn't we see Strobel as status quo journalism and the rest of the press as part of a new paradigm that won't speak its name--a new paradigm that places greater emphasis on power and authority and political correctness than fact? Isn't that the condition of possibility of the game Rove and Cheney have played with the press? That power and authority and dogmatic "he said/she said" political correctness are considered to trump verifiable reality?

Because the truth of the matter is that Strobel was able to break the stories. In his mind, he was simply doing his job as an investigative journalist and wondered why his colleagues seemingly stopped doing theirs.

To me, one of the intriguing insights of the "savviness" theory is that it recognizes that what passes for power did indeed often trump verifiable reality. We know these things were verifiable because Strobel was able to verify them when others wouldn't even as we know they could have. What accounts for journalism moving from "Trust, but verify" to "Trust Authority?" Why was authority confused with verification?

What I'm suggesting is that perhaps there is another piece of the puzzle. Don't we see the press move from a paradigm of watchdog investigative journalism to a paradigm of politically correct journalism that nevertheless purports to be the same old watchdog journalistic objectivity? Isn't it the playbook of politically correct journalism that was overwhelmed by Cheney/Rove? Isn't it the previous paradigm of "just the facts mam" Sgt. Friday investigative journalism practiced by Strobel that was able to "call them on it?"

Lastly, wasn't one of the big differences between Strobel and his colleagues that his editor insisted that he follow the truth rather than the claims of power and the GOP fairness doctrine that requires even fictional facts must have their day if they come from a politically powerful source? Do you think it's possible that you are overly discounting the significance of a majority of editors (for whatever reasons) who insisted on enforcing the newer GOP fairness doctrine playbook and thereby tied the hands of many professionals who would undoubtedly have done much better under the old rules, the older investigative journalism playbook? Wouldn't the old investigative playbook anticipate and even expect that authority and deception go together? Wasn't it the credulity of the newer GOP fairness doctrine playbook that was overwhelmed? Doesn't the fact that radicalism in the guise of authority became an unimaginable and surprising idea in itself establish that this was not your father's investigative journalism playbook that the press was referring to in guiding its actions?

Despite journalists' protestations to the contrary, hasn't the GOP fairness doctrine playbook displaced the investigative journalism playbook and become the current status quo? Isn't it the new GOP fairness doctrine playbook that makes Strobel's old-school investigative journalism something other than mainstream now?

Gloria Borger reports from the "as if" world of the GOP fairness doctrine in which what Karl Rove says is true regardless of whether it comes to pass. This is not the same world that Warren Strobel lives and works in. They can't both be the traditional playbook. Which is which? Which was overwhelmed? It looks to me as if there is a newly reigning GOP fairness doctrine playbook in town and one of the biggest obstacles to thinking through the consequences of its hegemony is getting journalists to admit that anything has changed. To admit that the job they are doing does not fit Warren Strobel's job description. Can I get a witness?