Category: Law

Posts about law-making, the courts, and legal concepts in general

PhD proposal progress

I have come across a lot of exciting material for my PhD project in the last few weeks. Documents like the papal encyclical Laudato Si raise interesting questions about the connections between the faith community’s involvement in the effort against climate change, anti-capitalism, and the moral contemplation of the environment. For instance, there are interesting parallels between this theological interpretation of biodiversity loss and ‘deep’ ecology in which nature is considered valuable for its own sake and not only for human purposes.

Another encouraging development is the universal enthusiasm for the project. I have discussed it with experts in faith and aboriginal communities, people at Massey College, committee members and potential supervisors, people at parties, environmentalists, journalists, and civil servants. People are sometimes skeptical about whether it will prove logistically feasible to talk to so many people and follow the routes of two phantom pipelines, but nobody has argued that the project is not worth trying.

Once the Community Response to the ad hoc committee on divestment’s report has been assembled, my top priority will be the creation of a major new version of my proposal for circulation to committee members and potential supervisors.

Fick on the mask of command

“Sir, what the fuck were the commanders thinking, sending us in there with no armor to clear a fucking town? We could have all been killed, and for what? We’re sitting in the same goddamn field we were in last night, as if nothing had happened, except we got the shit shot out of us and lost a great team leader.”

I walked a fine line. As an officer, I couldn’t badmouth decisions the way a lance corporal could. Even as a lowly first lieutenant, I simply had too much rank, too much authority and influence. It would be disloyal and insubordinate, a transgression both moral and legal. At the same time, though, to smile in the face of stupidity and say something about liberating the Iraqi people or living up to the example of Iwo Jima and Hue City would neuter me in the eyes of the men. Men shrink in combat to little circles of trust: us versus them. A platoon that puts its commander in the “them” category is a dangerous place to be. Every young officer learns the difference between legal authority and moral authority. Legal authority is worn on the collar — the gold and silver rank insignia that garner salutes and the title “sir.” It doesn’t win firefights. Moral authority is the legitimacy granted to a leader who knows his job and cares about his men. In combat, I learned to rely on moral authority much more than on legal authority.

So I conceded part of the Marine’s statement. “That was bullshit, bad tactics. After all the artillery prep and with the air escort, no one expected that ambush to happen. We were all wrong. I can’t speak for the battalion, but I can tell you that will never happen again in this platoon.” I paused and locked eyes with the Marine to be sure he knew I wasn’t just talking. “I’m sorry about Pappy. I don’t know if we’ll be fighting for another three days, three weeks, or three months, but I can tell you one thing. We have to learn from what we do right and what we do wrong, then move on. There were twenty-three of us, back to back. Now there are twenty-two. We have to get each other home in one piece.”

The Marine nodded, accepting this line of reasoning. Strong combat leadership is never by committee. Platoon commanders must command, and command in battle isn’t based on consensus. It’s based on consent. Any leader wields only as much authority and influence as is conferred by the consent of those he leads. The Marines allowed me to be their commander, and they could revoke their permission at any time.

Fick, Nathaniel. One Bullet Away: The Making of a Marine Officer. Houghton Mifflin; Boston. 2005. p. 276 (hardcover)

Marine Corps rules of engagement

The general stood on top of an amtrac, backed by the U.S. and Marine Corps flags. His voice boomed through a microphone to the hundred or so men standing beneath him. The theme was rules of engagement, and he wanted to make four points very clear. First, commanders had an inherent obligation — not merely a right, but a legal and ethical obligation — to defend their Marines. Second, when the enemy used human shields or put legitimate targets next to mosques and hospitals, he, not we, endangered those innocents. Third, a commander would be held responsible not for the facts as they emerged from an investigation, but for the facts as they appeared to him in good faith at the time — at night, in a sandstorm, with bullets in the air. His fourth and final point distilled the rules of engagement to their essence. He called it Wilhelm’s Law, a tribute to General Charles Wilhelm: if the enemy started the shooting, our concern should be proportionality — responding with adequate, but not excessive, force. If we started the shooting, the concern should be collateral damage.

I took notes as he spoke, thinking that this guidance was pure gold to be passed on to my troops. The rules of engagement harked back to my college classes on Saint Augustine and “just war” theory. I couldn’t control the justice of the declaration of war, but I could control the justice of its conduct within my tiny sphere of influence. Doing right, I thought, wasn’t only a moral imperative but also the most expedient way to lead my platoon. The rules of engagement would be for the Marines’ minds what armor was for their bodies. I made a note to include all this in the formal operations order I would issue a few days later. But I kept the general’s last statement for myself: “Officers,” he said, “please don’t get yourselves killed. It’s very bad for unit morale.”

Fick, Nathaniel. One Bullet Away: The Making of a Marine Officer. Houghton Mifflin; Boston. 2005. p. 182 (hardcover)

The IAEA on military nuclear activity in Iran

According to World Nuclear News, the International Atomic Energy Agency just adopted a report saying that Iran hasn’t been working toward a nuclear weapon since 2009:

The IAEA assessment found that a “range of activities relevant to the development of a nuclear explosive device” had been conducted in Iran prior to the end of 2003 as a coordinated effort, and that some activities had taken place after 2003. However, Amano also said that such activities “did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities”. The IAEA had “no credible indications of activities in Iran relevant to the development of a nuclear explosive device after 2009”.

Under the Joint Comprehensive Plan of Action negotiated between Iran and China, France, Germany, Russia, the U.K., the U.S. and the European Union, Iran will be implementing a comprehensive safeguards agreement, which would lead to resumed technical cooperation on peaceful uses of nuclear energy with the IAEA.

U of T ad hoc committee recommends divestment

The presidential committee at the University of Toronto just recommended divestment!

They lay out criteria for excluding stocks based on their climate change impact and “recommend… that the University of Toronto instruct its investment managers to divest immediately” from such holdings.

They specifically identify ConocoPhillips, ExxonMobil, the Peabody Energy Corporation, Arch Coal Inc., Alpha Natural Resources LLC, Cloud Peak Energy, and the Westmoreland Coal Company for divestment.

Look for more information on this in the hours ahead from UofT350.org and Toronto350.org.

Responses to the Paris Agreement

A bit of what I have seen online so far:

My quick take: there is lots to be disappointed about in this agreement. Targets aren’t legally binding. Indeed, the agreement text seems far too aspirational in many places. I can’t help but feel that an international agreement on trade or defence would include more concrete measures for effective implementation. It’s also objectionable that the agreement seeks to prohibit people harmed by climate change from suing those who are causing it for damages.

Even if fully implemented, this text doesn’t do nearly enough to prevent catastrophic climate change. That being said, having an agreement endorsed by so many parties — and which does include mechanisms for increasing ambition over time — makes me a bit more hopeful that this problem can ultimately be resolved.

Alberta’s 2015 climate plan

There’s a mass of news coverage and punditry about Alberta’s newly-announced pre-Paris climate change plan:

To me, this seems like a useful step forward: an acknowledgement that Alberta must act to curb climate pollution and that fossil fuel expansion cannot continue forever.

That said, this is all happening late. We should have stopped expansion decades ago and by this point jurisdictions like Canada with high GDP per capita and very high GHG pollution per capita should be on the downslope of cutting back aggressively.

The 1979 Vela Incident

There are some historical events where it may be impossible for ordinary people to learn the truth. For example, there are situations where more than one nation state has a good reason to circulate a false history — complete with credible-seeming historical documents.

One such case may be the 1979 Vela incident, in which an American satellite may have detected a clandestine nuclear test in the Indian Ocean. Some analyses have concluded that no nuclear explosion took place and that the satellite malfunctioned. Historian Richard Rhodes, who has written a series of excellent books about the history of nuclear weapons, thinks that it was a joint Israeli-South African nuclear test.

The Bulletin of the Atomic Scientists recently published a long discussion of the issue.

Open thread: 2015 federal election

Stephen Harper’s Conservatives won their first minority in Canada’s 39th general election in 2006, defeating the Liberals under Paul Martin with 124 seats to 103.

In 2008, the Conservatives did better against the Liberals under Stéphane Dion, ending up with 143 and 77 seats respectively.

In 2011, the Conservatives won a majority government with 166 seats. The Liberals under Michael Ignatieff fell to 34 seats and the NDP became the official opposition under Jack Layton.

On October 19th, we will have our 42nd general election. Polls suggest the NDP is most likely to win, but a lot can still change and may outcomes seem possible.

In the long run, I think Canada would be best off if the Liberals and NDP merged into a Liberal-Democratic Party that will be consistently capable of competing with a united right-wing. I respect the fear some people have that a system dominated by two parties will lead to US-style politics. At the same time, Canada’s parliamentary system with executive-legislative fusion has quite distinct characteristics from the US presidential/congressional split.

When it comes to climate politics, we can’t have policies that get reversed with every change of government. Libertarians and conservatives need to acknowledge what we are doing to the planet and endorse effective policies for responding to it. Continued delay will only increase the eventual need for government intervention.