CAFTA and the Administration's contradictory positions on sovereignty

Daphne Eviatar, a contributing editor to American Lawyer and a 2005 Alicia Patterson Fellow, has a piece in today's Washington Post Outlook on a provision of CAFTA that that allows for " 'investor-state arbitration' provisions [that] actually hand foreign businesses powerful rights that trump the interests or desires of local citizens." It's worth quoting at length:

How can a multinational corporation that objects to local environmental, health or safety regulations sue a national government? That license is provided under NAFTA. Once CAFTA is signed, it will provide the same right. In each case, a provision of the agreement allows a foreign corporation to sue a national government for money damages if it believes that the actions of the federal, state or local government in a given country are discriminatory, violate international law or can be considered -- directly or indirectly -- an expropriation of the company's investment. If complying with an environmental regulation makes a project no longer worth the cost, a company can claim that its investment has been expropriated by the state.

Whether the company is in the right won't be decided by an independent judge, however. Rather, it will be decided by a panel of three private international arbitrators chosen by the parties involved. These arbitrators are often corporate lawyers, who, in another suit, could be representing the investor. Affected citizens are not parties to the case. The government's right to protect the water supply in Guatemala, then, could be decided by British or American lawyers, for instance.

Eviatar then quotes some credible legal sources about a similar issue that came up in NAFTA:

Still, many legal experts argue that the provisions violate state and national sovereignty: They allow foreign investors to make an end-run around the federal courts, which usually rule on the legitimacy of public laws. As Justice Sandra Day O'Connor wrote after NAFTA's adoption: "Article III of our Constitution reserves to federal courts the power to decide cases and controversies, and the U.S. Congress may not delegate to another tribunal 'the essential attributes of judicial power.' Whether our Congress has done so with respect to tribunals created by different treaties and agreements is a critical question." John Echeverria, executive director of Georgetown University's Environmental Law and Policy Institute, puts it more starkly: "Congress is virtually sleepwalking through a revolutionary, and likely highly destructive, alteration of the American constitutional system of government."

Finally, she underscores the hypocrisy of the Bush administration position on the issue:

These arbitration provisions also highlight the inconsistency of the Bush administration's approach to sovereignty under international law. According to many legal experts (including lawyers now bringing these claims), the significance of investor-state arbitration provisions, which wasn't clear at the time NAFTA was enacted under the Clinton administration, in the last few years has become so. The Bush administration has refused to sign the Kyoto Protocol to reduce greenhouse gases and the treaty creating the International Criminal Court on the grounds that these treaties threaten U.S. sovereignty. But when it came time to push for Congressional support of CAFTA and other trade pacts that compromise U.S. sovereignty for the benefit of big business, the administration's concerns about the integrity of our legislative and judicial system had disappeared.

Well said.

CAFTA--Was it worth it?

Last night I got a rather exuberant email from Chicago outlining for anti-CAFTA activists all the reasons they should be proud of their work. Unusual for a group who lost a vote by such a small margin, and who one otherwise might expect to be demoralized.

But reading today's Wall Street Journal, indeed there may be substance to their glee. If the page one story in today's WSJ is on the mark, for example, and the "CAFTA vote clouds prospects for other trade deals," then the Bush administration should be worried.

...the trade fight has also become increasingly partisan for its own sake, with Democrats voting as much to gain approval from domestic interests and labor groups as out of principled objections to the details of an agreement.

That clouds prospects for future trade deals, especially if the Republican margin shrinks in the 2006 elections. The all-important fast-track authority -- which gives the U.S. president the power to negotiate trade deals that Congress either accepts or rejects without amendment -- is up for renewal in 2007.

...For Latin American governments mulling their own free-trade pacts with the U.S., the Cafta cliffhanger raised an unsettling question: If the tiny, ardently pro-U.S. economies of Central America can barely get a deal, what can we expect? That may make Latin leaders less willing to expend political capital at home to win approval for trade deals that grant greater access for U.S. goods. While individual countries like Panama will continue to seek bilateral pacts with the U.S., the Bush administration's already troubled plan for a Free Trade Area of the Americas faces an increasingly uncertain future.

Elsewhere in their paper (another two news stories, and one editorial bemoaning the Democratic posture), reporters note the US' declining influence in the region, CAFTA notwithstanding:

Washington's reluctant approval of a deal that was widely seen in Latin America as tilted in the U.S.'s favor is likely to aggravate the decline of U.S. influence in the region, which feels it has an uneven relationship with the world's sole superpower.

Finally, the Journal continues it's excellent coverage of Republican "arm-twisting" (yes, a phrase they do use) to get the oh-so-slim CAFTA victory.

Time will tell whether it was worth it to the Bush administration to elevate CAFTA to such a primordial place on its policy agenda. To read the reporters of the WSJ, one would think they already have an opinion about that.

Update: Reading through a round of friendly bloggers (something I have little time for of late), I see that Boz comes up with another interesting unintended consequence of a CAFTA victory (something he supports, albeit with reservations). I noted yesterday that Central American elites will be held accountable for any failure (likely, in my opinion) of CAFTA to produce lots of new jobs. Boz sees gold for Chavez as well:

The bad news for bill's supporters is, in the short term (1-3 years) the passage of CAFTA may actually benefit Chavez. CAFTA becomes Chavez's whipping boy, a gringo economic policy he can point to when development doesn't come immediately or some people lose out in the new free trade deal. Chavez doesn't care whether it's true or not. The Venezuelan regime is a master of public relations and they will find a way to turn CAFTA against us in the media. This isn't an argument against CAFTA, but it is something to be prepared for.

CAFTA as Trojan Horse

The best coverage today comes from the Wall Street Journal, which details some of the last-minute vote-buying/bargaining from the Administration:

Republican leaders secured at least five votes for Cafta by agreeing to bring separate legislation to the floor that would allow the U.S. to impose duties on exports from China and others designated as nonmarket economies by the Commerce Department. The measure, approved yesterday in the House by a 255-168 vote, was castigated as "a sham" by Senate Democratic leader Harry Reid of Nevada and faces uncertain prospects in the Senate.

Another five votes, and perhaps more, came after the administration cut deals to assuage textile-industry concerns, such as fears that the pact would create incentives for Central American producers to use inexpensive Asian-made yarn and fabric instead of U.S.-made materials. Even with the changes, opposition remained among lawmakers from textile-producing states.

Even their accompanying graphic was snyde, or at least used it to illustrate how all of this is much ado about very little. It's worth going back about 10 days to another WSJ analysis piece, entitled "CAFTA No Cure-All for Central America," to grasp why this CAFTA may not do much for the region. That article ends with the following prognosis, and makes the radical suggestion that perhaps free movement of labor (which is what we have already in a rather de facto way, and which is what is really helping Central American economies) is what might work best:

But Cafta's immediate economic benefits are so "nebulous" says the economist Carl Ross, a Bear Stearns analyst, that he says he can't incorporate them into his forecasts for the region.

When it comes to promoting regional security through economic growth, the Europeans, looking for deeper economic integration, have adopted another model. The European Union offers its poorest entrants free trade coupled with development assistance, free movement of labor and other measures designed to lift nations out of poverty.

When such poor nations as Ireland and Spain were admitted to the EU, they received funding aimed at boosting competitiveness and their workers were able to work elsewhere in wealthy Europe. Today, Ireland has one of the world's fastest growing economies and is competing on solid footing in high technology. The disposable income of Spanish families has risen by nearly 40% since 1998, estimates by Spain's La Caixa bank show.

Cafta's limited trade openings are unlikely to produce such dramatic gains.

Finally, today's WSJ piece provides more explicit details about Administration lobbying:

In a day of high-level lobbying, Secretary of State Condoleezza Rice made the rounds to argue that Cafta would help heal old divisions in the region and foster stability. Late last night, Mr. Cheney camped out in an office just off the House floor, and Commerce Secretary Carlos Gutierrez worked the halls.

Wait a minute -- CAFTA will "help heal old divisions" in the region?

NOT. CAFTA has already provided a useful political foil for the left, and now that the region's elites have it, they'll have to accept the political consequences should that reported 300,000 job gain in the region prove elusive. That can only help the left and other opposition forces. Which I doubt the Bush administration will be too happy about.

Talking sense on CAFTA

Okay, so he doesn't really delve into the issues, but this is a nice bit from today's op-ed from one of Maine's two Congressmen, Michael Michaud.

At the end of the day, opponents of CAFTA have not asked for no trade deal at all, but merely for a simple renegotiation of the treaty in order to fix glaring problems and promote trade that is fair to workers on both sides. So far, the administration has refused.

How could such a bad deal for our workers pass? In recent days, the administration has authorized House leaders to secure votes with whatever is at hand, from extra funding for individual members' districts in the highway and energy bills to the still incomplete annual appropriations bills. Members are being asked to trade away their votes for a trade agreement that only promises to trade away American jobs.

Two years ago, this tactic worked to pass the deeply flawed Medicare bill by one vote - leadership held open a 15-minute vote for three hours while they twisted arms in order to ensure its passage. It is expected that the CAFTA vote will be more of the same.

Is this the way that the people's House should look after the best interests of our nation? What message does this send the American people and our work force? And why must these votes always be held in the dark of night? While working Americans sleep, their jobs are traded away in a Capitol Hill back room.

Why a paltry anti-war movement might be a good thing

Various polls show public sentiment on US policy in Iraq waning. Gallup, for example, says that 6 out of every 10 Americans favor a partial or full withdrawal of troops. Harold Meyerson explains why, unlike the Vietnam war era -- when there were similar numbers in public polls -- this time public opinion might count:

These figures already match the polling in the middle and late years of the war in Vietnam -- even though that war was fought with vastly higher casualties and a conscript army. In a series of polls taken in November and December of 1969, the Gallup Organization found that 49 percent of Americans favored a withdrawal of U.S. forces and 78 percent believed that the Nixon administration's rate of withdrawal was "too slow." But there was one other crucial finding: 77 percent disapproved of the antiwar demonstrations, which were then at their height.

That disapproval was key to Nixon's political strategy. He didn't so much defend the war as attack its critics, making common cause with what he termed the "silent majority" against a mainstream movement with a large, raucous and sometimes senseless fringe. When Nixon won reelection in a landslide, it was clear that the strategy had worked -- and it has been fundamental Republican strategy ever since. Though the public sides with the Democrats on more key issues than it does with Republicans, it's Republicans who have won more elections, in good measure because the GOP has raised its ad hominem attacks on Democrats' character and patriotism to a science.

Which is why, however perverse this may sound, the absence of an antiwar movement is proving to be a huge political problem for the Bush administration, and why the Republicans are reduced to trying to turn Dick Durbin, who criticized our policies at Guantanamo Bay, into some enemy of the people. The administration has no one to demonize. With nobody blocking the troop trains, military recruitment is collapsing of its own accord. With nobody in the streets, the occupation is being judged on its own merits.

Unable to distract people from his own performance, Bush is tanking in the polls. And with congressional Democrats at least partly muting their opposition to an open-ended occupation, it's Bush's fellow Republicans -- most prominently, North Carolina's Walter Jones -- who are now calling our policy into question.

The lesson here for liberals and Democrats is not that they should shun oppositional politics -- after all, they confronted Bush head-on over Social Security and prevailed. My hunch is that candidates in the 2006 elections -- not to mention, 2008 -- who call for putting a date on U.S. withdrawal from Iraq will be rewarded at the ballot box. But it will probably help such candidates, and certainly confound the Bushites, if antiwar activists forget about the streets and focus on the polls.

Cows for Cuba

I guess I need to brush up on my U.S.-Cuba policy, as an article that appeared the last Friday in the Portland Press Herald surprised me with the breadth of trade being "freely" planned with Cuba.

Cuban delegation in search of heifers at Maine farms
By CLARKE CANFIELD, Associated Press

Maine cattle farmers will be showing off their herds when a contingent of Cuban officials visits a dozen farms in the coming four days in search of heifers to bring back to the Caribbean nation.

The delegation is scheduled to visit farms in southern, central and coastal Maine in a trip that begins today and continues through Monday.

The trade mission will provide Cuba with much-needed cows, while giving Maine farmers new markets for their cattle. The Cuban officials are also scheduled to meet with Maine potato and apple growers to discuss deals to buy those products later this year.

"There's a big demand for heifers in Cuba, and a lot of farmers are willing to get involved because down the road it could lead to future sales," said Maine Agriculture Commissioner Robert Spear.

The Cuban delegation includes government officials who specialize in imports, agriculture and veterinary medicine. They have already toured dairy farms in Pennsylvania and Vermont in hopes of buying several hundred heifers, young cows that have not yet borne a calf.

Officials said the cows have been selling for around $1,900 each.

For farmers such as Steve Keene at the family owned Conant Farm in Canton, a Cuban market for cattle helps diversify the farm and protect it in times of depressed milk prices. Keene said the Cubans are buying cows that are three to five months pregnant that will be shipped to Cuba, where they will later give birth.

"This will help us down the road because supply and demand will keep the prices at a good level for us," Keene said.

The trade agreement for Maine cattle is part of a bigger plan to sell other products to Cuba as well. On Sunday, the Cuban officials are scheduled to meet with apple and potato growers, said Doyle Marchant, owner of Cedar Spring Agricultural Co. in North Yarmouth, who organized trips of Maine delegations to visit Cuba in December and again in April.

"They need dairy products. The Cuban people, being in excess of 11.6 million people, are a protein-deficient society," Marchant said. "They don't have enough of anything as it relates to food, as it relates to pharmaceuticals and so forth." Food, agricultural products and medical supplies are the only items exempt from the 43-year-old U.S. trade embargo with Cuba.

Marchant said Cuban officials have signed contracts to buy apples and dairy products, and letters of intent for potatoes and lumber. Expanded trade will benefit both Maine and Cuba, he said.

"I'd rather see potatoes going to Cuba than see for-sale signs going up in front of potato farms," he said.

It's worth noting that Salvadorans, Guatemalans and Mexicans and other Latin Americans work in the lumber and apple industries (many illegally).

AI and the "gulag" episode

I had commented on the AI "gulag" reference elsewhere, and this is quite an old story by this time, but I have to say that I agree 100 percent with the piece by a former Soviet "prisoner of conscience" in today's Washington Post:

The most effective way to criticize U.S. behavior is to frankly acknowledge that this country should be held to a higher standard based on its own Constitution, laws and traditions. We cannot fulfill our responsibilities as the world's only superpower without being perceived as a moral authority. Despite the risks posed by terrorism, the United States cannot indefinitely detain people considered dangerous without appropriate safeguards for their conditions of detention and periodic review of their status.

Words are important. When Amnesty spokesmen use the word "gulag" to describe U.S. human rights violations, they allow the Bush administration to dismiss justified criticism and undermine Amnesty's credibility. Amnesty International is too valuable to let it be hijacked by politically biased leaders.

Remembering Maggi

I thought I’d add something that was written recently and that, as Cathy Potler put it, “captured some of [Maggi's] finest characteristics.” Maggi’s friend Gene Palumbo, a journalist living in El Salvador, wrote it for a memorial service for Maggi’s father. Maggi decided not to read it at the service, explaining why in a note to Gene that reflected her characteristic modesty:

I was really touched by your overly generous words. I passed them along to my mother, but we had so many people who wanted to say things directly about my father and their relationship with him that it didn't seem right to include something that focused on me during the ceremony. This may sound strange, but it hadn't really occurred to me before that my somewhat skeptical tendencies in El Salvador might actually have come from listening to my father, who never accepted any dogma (he was expelled from the Young Communists at age 15 for criticizing the Hitler-Stalin pact).

Gretta Siebentritt said Maggi told her that she was pleased by what Gene had written. With that in mind, and with Gene’s permission, I’m reprinting it here:

I spoke only once with Maggi's father, so I can't say I knew him. But if it’s true that "by their fruits you shall know them," he must have been quite a person.

I wonder what kind of intellectual he was. If he was the kind his daughter is, he was the best kind. El Salvador is a place where, too often, and sadly, people take sides in a way that means they stop being self-critical and open. They become predictable. Maggi isn't like that, and wasn't like that when she was here. I wish you could know how helpful, how important that was to so many of us -- and how refreshing it was. If Maggi got some of that from him, he sure did a great job.

I wonder if he helped give her something else: the kind of courage you had to have to go to El Salvador when Maggi did -- right in the middle of the war -- and to go there to do what Maggi did: human rights work on behalf of those who were targeted. On a Sunday afternoon like this, during those war years, you knew where you'd find Maggi: at the prisons, visiting and interviewing people who'd been captured. Some were from the non-government human rights commission; other commission members had been murdered. To be identified with those people – as Maggi surely was by prison and government authorities – meant putting yourself at risk, but that didn't stop her. I’d guess her dad felt very proud of that.

Finally, how many people do you know who, right in the middle of a situation like that, would choose to start a family and raise a child? Richard Popkin's daughter did that. So if it's "like father, like daughter," he must have been quite a guy. I wish I could have known him.

UN: Ten Stories the World Needs to Know About

Compiled by the United Nations Department of Public Information
Somalia: Steps on a path to fragile peace in a shattered country
Tragic blind spot in health care for women
Northern Uganda: A humanitarian crisis that demands sustained focus
Sierra Leone: Building on a hard-won peace
Actors for change: The growth of human rights institutions
Cameroon: Farming in the Dark
Island after the hurricane: Grenada struggles to recover from devastation
Behind closed doors: Violence against women
A viable alternative: curbing illicit drugs through development
Environment and health: New insights into spread of infectious diseases

The Maass piece last Sunday

...was pretty good. It still feels like he doesn't necessarily have a good grasp of El Salvador, and mostly seems to follow up on the very good WSJ piece on pop-up militias last February. If he'd read a bit more about El Salvador (and I realize he reported from there, but that was a heck of a long time ago), he'd know that the old 55-adviser limit was a joke, and the military admits to that now.

I'm too tired and beat to say anything more, but you can check out praktike's and swopa's posts, and my comments, on the matter.

Remembering one democracy activist

Last September, I mentioned an article in the New York Times Magazine about Fern Holland, the 33-year-old idealistic lawyer from Oklahoma who was, along with Bob Zangas, the first civilian employee of the Coalition Provisional Authority to be killed in Iraq.

Today I received a letter from her sister, which I'm placing here in full:

David -

You didn't know Fern and neither did Rubin. Nor was Rubin interested in the "life of Fern Holland"; she wrote a political piece and used Fern as a vehicle for "her" story. In time the truth will be revealed, then you might want to reconsider Rubin's sources and what you think you know about Fern.

Fern did not attempt to impose her ideals about "women's rights".....She was instilling the ideals of freedom in all of the Iraqis. She was not a "feminist", she was a soldier of human rights. The media has turned her into a "women's rights activist". They fail to mention all the Human Rights and Democracy centers she opened; helping primarily men.

Before Fern's death she co-authored, with Professor John Norton Moore of Virginia, a concept/proposal for the creation of a permanent democracy and rule of law educational institute in Africa. She was seekinReg funding for this project when she was offered the opportunity to serve democracy and the people of Iraq. I'm proud to inform you that this project was recently funded; Freedom House was granted "seed money" for the creation of a Fern Holland Democracy Institute in Africa.

I recently returned from Guinea West Africa where I spent two weeks retracing Fern's steps and documenting her work. The legal aid clinic in Nzerekore now bears her name and the staff of the clinic in Kissidougou requested a name change as well. I interviewed numerous women and men who worked with Fern and who benefited from the services of the clinics. I also interviewed Guinean lawyers who worked many long hours investigating the crimes, researching the laws, and helping to create the clinics. Still to this day, as they speak of Fern, tears spill down their checks....I found Fern still alive in the hearts of these amazing people, 8000 miles away from our home, in her beloved Africa.

There has been a tremendous amount of interest, from the film industry, in Fern's murder. But my sister would not want to be remembered because of her death or the brutal way she died. She would want to be remembered because of her life and the way she lived. Fern held two core beliefs: that all people deserve basic human rights, and that one person really can make a difference in the lives of others - and, she did.

All the best and warm wishes David.

Sincerely,
Vi Holland

Amen!

On the new pope

Really, no time for this, so I'm just going to quote something I came across in the comments section of a post on Ratzinger in TalkLeft, by Conscious Angels:

I am a little disappointed that they have selected a Catholic again. I think a Unitarian would have shaken things up a bit.

If you want a more conservative era, go with a Southern Baptist, but no the Cardinals did it again, another Catholic. How many is that now in a row?

Has anyone explained diversity to the folks at Vatican City?

At least a latin american would have been familiar with the language. What does a German guy know about latin?

Foreign Affairs pop quiz

So I had a little fun last night, and played WorldQuest with the Maine Council on World Affairs. My Latin America expertise came in handy at a few points, but it also highlighted out a glaring blind spot for me.

Ready to play? No cheating:

Ellen Gracie Norfleet is most well-known as....

a) the first female admiral in the Canadian Navy
b) the president of UNIFEM
c) the first female justice of the Brazilian Supreme Court
d) the provost of the United Nations University

The answer is here.

How about this one:

How are North and South Korea most dissimilar:

a) literacy rate
b) population
c) life expectancy
d) (can't remember)

After arguing against an emerging consensus that it must be literacy (based on my Latin American experience that socialist countries do quite a good job on that score), the answer turned out to be: b) population. In other words, in social-economic terms the two countries are not all that dissimilar.

Okay, so getting back to the first question, if Randy Paul is out there anywhere, could you please recommend a couple of books for me to brush up on Brazil basics? I also thought Brazil might be the top exporter of cocoa in the world. After all, in recent years all those yummy Brazilian chocolates turned up in Salvadoran supermarkets.

The answer: Ivory Coast. (Note: they also use child slaves to harvest cocoa beans.)

Maine and Chile

I'd never heard of John O'Leary, a former mayor of my new hometown (Portland, Maine) and former US Ambassador to Chile, until I read this week in the local paper that he'd died. Sounded like a decent guy.

But then I just saw that Marc Cooper sings his praises:

Not only was John O’Leary a warm and personable man, but he did everything he could to rectify the American record, the American presence in Chile. He opened his Embassy to all, regardless of their political stripe. And after General Pinochet’s arrest in 1998, Ambassador O’Leary took aggressive measures to expose archives of U.S. documents on Chile to public scrutiny. As American Ambassador he also helped support the opening of new investigations into the deaths of three Americans, including Charlie Horman, the subject of the classic Costa-Gavras film, Missing. For international human rights activists working to clarify the record of the Pinochet era, Ambassador O’Leary was a reliable and stalwart ally.

...He was, in short, the best face that America could put forward to the world. Indeed, his approach, his compassion, and his sensibilities are all quite the opposite of the American diplomacy we see today.

How to sabotage democracy

Reading Denise Dresser's piece in the Los Angeles Times on the attempted take-down of Lopez Obrador -- Mexico City mayor and leading presidential candidate -- reminds me of how elites use "legal" means to thwart at all costs the rise to power of even moderate leftists. According to Dresser, Lopez Obrador seems to have fallen into the trap, and slowly looking more like the radical leftist the dominant powers feared, and less like the pragmatic politician he has actually proven himself to be in practice.

I started this blog long after El Diario de Hoy, in particular, helped to end Hector Silva's ill-fated attempt to be the FMLN presidential candidate (in that case, Silva ended up getting the boot from the FMLN for daring to stake out a more pragmatic position on the medical strike of 2003).

Of course, when the FMLN or other leftist parties uses "legal" means to achieve democratic ends (for example, withholding votes on the budget in order to get a voice at the table, or some minimal concessions from the government), they are seen (by elites) as sabotaging democracy.

Too bad that what it means to be a democrat in Latin America today still very much depends on the eye of the beholder.

Life in the fast lane

Somewhat moved into my new digs in Maine, but finding little time to write, read or blog. Some of the things I'm quite happy about: superfast internet connections, a comfortably cold climate (I sleep well at night), absence of crazy drivers (after logging 300 miles on my car in 4 days, I have yet to come across anything that compares to what I find within 5 minutes of leaving my house in El Salvador.)

Back to news. Bill Barnes sent me a piece by Jonathan Tepperman in the New Republic last week, in which he uses the Negroponte nomination to once again revive the issue of the Salvador option. I have a lot of reactions, and it does seem more nuanced than most pieces on the issue, but still somewhat flawed. However, I think once I get a few other things out of the way, I'll try to write something a bit more final on this issue (i.e., not just random blog entries.)

Eric Umansky notes today this story in the New York Times, which is about the closest I'll come to saying anything on the social security debate:

As the debate over Social Security heats up, the estimated seven million or so illegal immigrant workers in the United States are now providing the system with a subsidy of as much as $7 billion a year.

While it has been evident for years that illegal immigrants pay a variety of taxes, the extent of their contributions to Social Security is striking: the money added up to about 10 percent of last year's surplus - the difference between what the system currently receives in payroll taxes and what it doles out in pension benefits. Moreover, the money paid by illegal workers and their employers is factored into all the Social Security Administration's projections.

Illegal immigration, Marcelo Suárez-Orozco, co-director of immigration studies at New York University, noted sardonically, could provide "the fastest way to shore up the long-term finances of Social Security."

Okay, this is so fascinating, I'm going to quote a bit more.

Starting in the late 1980's, the Social Security Administration received a flood of W-2 earnings reports with incorrect - sometimes simply fictitious - Social Security numbers. It stashed them in what it calls the "earnings suspense file" in the hope that someday it would figure out whom they belonged to.

The file has been mushrooming ever since: $189 billion worth of wages ended up recorded in the suspense file over the 1990's, two and a half times the amount of the 1980's.

In the current decade, the file is growing, on average, by more than $50 billion a year, generating $6 billion to $7 billion in Social Security tax revenue and about $1.5 billion in Medicare taxes.

In 2002 alone, the last year with figures released by the Social Security Administration, nine million W-2's with incorrect Social Security numbers landed in the suspense file, accounting for $56 billion in earnings, or about 1.5 percent of total reported wages.

Social Security officials do not know what fraction of the suspense file corresponds to the earnings of illegal immigrants. But they suspect that the portion is significant.

"Our assumption is that about three-quarters of other-than-legal immigrants pay payroll taxes," said Stephen C. Goss, Social Security's chief actuary, using the agency's term for illegal immigration.

Other researchers say illegal immigrants are the main contributors to the suspense file. "Illegal immigrants account for the vast majority of the suspense file," said Nick Theodore, the director of the Center for Urban Economic Development at the University of Illinois at Chicago. "Especially its growth over the 1990's, as more and more undocumented immigrants entered the work force."

Using data from the Census Bureau's current population survey, Steven Camarota, director of research at the Center for Immigration Studies, an advocacy group in Washington that favors more limits on immigration, estimated that 3.8 million households headed by illegal immigrants generated $6.4 billion in Social Security taxes in 2002.

A comparative handful of former illegal immigrant workers who have obtained legal residence have been able to accredit their previous earnings to their new legal Social Security numbers. Mr. Camarota is among those opposed to granting a broad amnesty to illegal immigrants, arguing that, among other things, they might claim Social Security benefits and put further financial stress on the system.

The mismatched W-2's fit like a glove on illegal immigrants' known geographic distribution and the patchwork of jobs they typically hold. An audit found that more than half of the 100 employers filing the most earnings reports with false Social Security numbers from 1997 through 2001 came from just three states: California, Texas and Illinois. According to an analysis by the Government Accountability Office, about 17 percent of the businesses with inaccurate W-2's were restaurants, 10 percent were construction companies and 7 percent were farm operations.

Most immigration helps Social Security's finances, because new immigrants tend to be of working age and contribute more than they take from the system. A simulation by Social Security's actuaries found that if net immigration ran at 1.3 million a year instead of the 900,000 in their central assumption, the system's 75-year funding gap would narrow to 1.67 percent of total payroll, from 1.92 percent - savings that come out to half a trillion dollars, valued in today's money.

Illegal immigrants help even more because they will never collect benefits. According to Mr. Goss, without the flow of payroll taxes from wages in the suspense file, the system's long-term funding hole over 75 years would be 10 percent deeper.

How can CAFTA help this situation?

NYT:

As the biggest-name clothing brands hunt for bargains halfway around the world, the factories that became the engine of Central America's formal economy are starting to sputter.

In the first two months of this year, authorities said, 18 plants in Guatemala, Honduras, Costa Rica and the Dominican Republic closed; some 10,000 jobs were lost.

Nicaragua, with Central America's worst poverty and lowest wages, is the only country that has had an expansion in its young garment industry. Textile powerhouses like Guatemala and Honduras, the third-largest clothing exporter to the United States after China and Mexico, have managed to maintain a rough stability. But industry representatives said they expected orders to dry up at many factories by summer.

So far, the ending of the quota system - a 1974 pact known formally as the Multi-Fiber Agreement - has hit hardest in El Salvador. Part of the reason, industry experts said, was that four years ago, this country adopted the dollar as its official currency, giving it no leeway from a devaluation to keep exports competitive. As a result, it has the highest labor and transportation costs in the region.

Military aid for Guatemala

Rumsfeld was in Guatemala this week to announce a renewal of military aid to that country, $3.2 million worth, the first trickle of its kind in 15 years. Human rights groups are reasonably upset:

”Despite its commitment to ending impunity and combating clandestine groups, the Berger administration has demonstrated a lack of political will and ability to make progress in establishing an effective mechanism to investigate and dismantle clandestine groups,” according to a joint statement by the Washington Office on Latin America (WOLA), the Robert F. Kennedy Memorial Centre for Human Rights, and other groups.

It noted that these clandestine groups or illegal armed groups, which were supposed to have been dismantled after the signing of the historic 1996 Peace Accords, are believed to have ties to Guatemala's military intelligence apparatus, which is also widely believed to have become increasingly active in drug trafficking and organised crime.

This is just a quibble, but I think the framing of this issue around "clandestine" groups doesn't really convey the full extent of the problem, which is that the Guatemalan military has long been tied up with and partially owned by mafia-like groups. Has that really changed? The fact that the military has a new civilian mandate doesn't mean all that much, nor does the fact that its numbers are reduced. If there's evidence of involvement with drug traffickers, etc., what kind of prosecution (even if only internally) has gone on that would demonstrate the military's taken a new direction?

The Bush administration obviously feels that this has changed, or at least that Berger is going to be a better ally in this pursuit than was the thoroughly corrupt Portillo administration.

But the Bush administration, increasingly concerned about drug-trafficking through Guatemala in particularly, has decided to restore funding now. Almost three billion of the 3.2 million dollars that is being restored will be used to upgrade Guatemala's air force and small navy for use in drug-interdiction operations.

Will $3.2 million be enough of a carrot to really make a difference?

Gang blowback

From Newsweek:

...down in El Salvador, officials fear the repercussions of another batch of MS-13 deportees heading their way. "Those deportations are a time bomb," says Bonilla. "When a gang member is deported from the United States, it destroys in one month what we've achieved in a year of [gang-prevention work]."

The 25th Anniversary of Romero's Death

I haven't had alot of time lately to write much (in one week I'm on a plane out of here), but I would like to note that I've been more and more impressed by Tim's El Salvador Blog, and how he's been able to keep us abreast of Salvadoran news. With gangs and CAFTA on the U.S. agenda, there's only going to be more news in the U.S. media in the coming days, so if you're interested, you should definitely check out his blog.

This month, he's also shared with us many of Oscar Romero's words, and his selection for today -- March 24th, the day he was killed 25 years ago -- seems especially apropos for our current military misadventures in Iraq and elsewhere. Tim has found some of his quotes from Romero through a free e-book available from the Bruderhof Communities (see their daily quotes in the right-hand column here).

Oddly (and wonderfully) enough, the Romero anniversary is partly responsible for my meeting my fiancé. One year ago, in a very quick and casual meeting here in San Salvador, I mentioned that she might be interested in attending a memorial mass at the UCA (in which I was playing cello, accompanying the UCA choir). Perhaps if she had not shown up there, we might never have again laid eyes on each other.

In that vein, I'd like to share one of my favorite passages from Romero (which can be found in the free e-book), that relates to marriage and the family, taken from a homily delivered on October 7, 1979:

I call on all of you, makers of so many families, builders of so many homes: Let each family in El Salvador not be a hindrance to the urgent changes that society needs. Let no family isolate itself from society as a whole because it is itself well off.

No one marries just so the two of them can be happy; marriage has a great social function. It must be the torch that lights up the way to new liberations for other marriages around it.

From the home must come the man or woman able to promote the changes needed in politics, in society, in the ways of justice: changes that will not come about as long as home life opposes them. But it will be so easy once boys and girls are trained in the heart of each family to aspire not to have more but to be more, not to grab everything but to give abundantly to others. They must be educated for love.

Loving is what the family is all about, and loving means giving oneself, surrendering oneself to the well-being of all and working for the common happiness.

Krugman does Latin America

In a somewhat roundabout way, Paul Krugman manages to discuss Latin America while dissing Wolfowitz as the U.S. nominee for president of the World Bank. He notes that many countries are likely to have little faith in the leadership of Wolfowitz, given his involvement in "America's largest foreign aid and economic development project since the Marshall Plan"--the Iraq reconstruction effort. Krugman writes that U.S. officials seemed more interested in installing a regime of privatization than in elections, at the same time that "dogmatic views about the universal superiority of free markets have been losing ground around the world:"

Latin Americans are the most disillusioned. Through much of the 1990's, they bought into the "Washington consensus" - which we should note came from Clinton administration officials as well as from Wall Street economists and conservative think tanks - which said that privatization, deregulation and free trade would lead to economic takeoff. Instead, growth remained sluggish, inequality increased, and the region was struck by a series of economic crises.

The result has been the rise of governments that, to varying degrees, reject policies they perceive as made in America. Venezuela's leader is the most obstreperous. But the most dramatic example of the backlash is Argentina, once the darling of Wall Street and the think tanks. Today, after a devastating recession, the country is run by a populist who often blames foreigners for the country's economic problems, and has forced Argentina's foreign creditors to accept a settlement that gives them only 32 cents on the dollar.

And the backlash has reached our closest neighbor. Mexico's current president, Vicente Fox, a former Coca-Cola executive, is a firm believer in free markets. But his administration is widely considered a failure. Meanwhile, Mexico City's leftist mayor, Manuel López Obrador, has become immensely popular. And his populist rhetoric has raised fears that if he becomes president he will roll back the free-market and free-trade policies of the past two decades.

Mr. Fox is trying to use a minor violation of the law to keep Mr. López off the presidential ballot. If he succeeds, many Mexicans will believe that democracy was sacrificed on the altar of foreign capital.

Not long ago, the growing alienation of Latin America from the United States would have been considered a major foreign policy setback. So much has gone wrong lately that we've defined disaster down, but it's still not a good thing.

Arroba de Oro (the Gold Ampersand award)

So it's time to announce that I've been invited to participate in the Arroba de Oro® competitions in Central America as an international jurist for the governmental and NGO websites. Begun in El Salvador a few years ago, this is considered the most important internet competition in Latin America. This year there are competitions in several countries, including Guatemala, El Salvador and Panama. This is probably the most corporate thing I've ever done, but I'm quite happy about the chance to participate.

Along with other judges, I'll review the top ten finalists, and submit my evaluation to an outside auditor, KPMG. They claim total transparency in the voting process, clear evaluation criteria

First up -- Guatemala, where the top prize winner will earn some $50,000. Yeah, that's right. I don't even think there's an equivalent prize of this kind in the U.S.

Nicaragua: Alemán and Ortega, Worse than Somoza

That's the evaluation of Henry Lewites, the former FSLN mayor of Managua, and theoretically the most popular politician in the country, in an interview in today's La Prensa Grafica. But I also noticed an editorial in the Boston Globe, the first in a series. There we learn more about Lewites' situation:

Lewites wants the Sandinistas to hold a primary to determine their candidate, as they have done in the past. The Sandinistas, supposedly representing the mass of the people, ought to be eager for the kind of voter enthusiasm that this contest would generate. But Ortega had Lewites expelled from the party on Feb. 26, and on March 5 at a routine meeting of the Sandinista Congress, he had himself nominated for president. Ortega fears democracy when it might diminish his power as the chieftain of the Sandinistas.

Despite lots of very depressing news about the sad state of affairs in Nicaragua, I've generally avoided commenting on it. The Globe editorial provides a good summary of just how bad things have become:

The idealism that fueled much of the Sandinista revolution has been replaced by cynicism and careerism fostered by Ortega and his followers. This decline manifested itself just a few weeks after Ortega was defeated by Violetta Chamorro in 1990, when the Sandinista-dominated Assembly passed the ''piñata" laws that legalized property expropriation. The party leadership got to keep the houses they had commandeered when they took power. Ortega now lives in a two-block walled compound carved out of the center of Managua that also houses party headquarters.

Ortega has survived allegations of sexual abuse by his stepdaughter in 1998, defeats for the presidency in 1996 and 2001, and the notorious ''el pacto" he reached in 2001 with the corrupt Arnoldo Aleman, who succeeded Chamorro as president and dominates the majority Liberal party. This bargain divvied up power between the Liberals and the Sandinistas in advance of Aleman's exit from office. Ortega has endured despite continuing hostility from the US government, which he reciprocates.

It will be worth keeping an eye on these editorials in the coming days. It's hard to say which is worse these days, the Ortega-dominated FSLN or Alemán and his cronies in the Liberal party. A renewed left or right would be a positive change, but the outlook isn't good.

Interesting, but unlikely

So, if the U.S. is going to go after Chávez, they're going to let him know beforehand?

VENEZUELA: Statements Indicate Chávez May Indeed Be in Somebody's Crosshairs

CARACAS, Mar 9 (IPS) - Venezuelan President Hugo Chávez has repeatedly claimed that the U.S. government has plans to assassinate him and thus trigger chaos that would allow it to intervene militarily and take control of the South American country's huge oil reserves.

Now, recent statements by the top U.S. official in Venezuela appear to back up his fears of a plot against his life.

In an interview last weekend with the Peruvian newspaper El Comercio, Venezuelan Vice President José Vicente Rangel reported that former U.S. Ambassador Charles Shapiro had warned him of the possibility of an attempt on Chávez's life.

Shapiro, who served as ambassador to Venezuela from 2001 to 2004, ”did not go into details, but felt he was obliged to share this information with us, for legal reasons,” Rangel added.

In the mid-1970s, Washington officially prohibited the Central Intelligence Agency (CIA) from planning or participating in assassination attempts against foreign leaders.

On Tuesday, the current U.S. ambassador to Venezuela, William Brownfield, admitted that "Vice President Rangel is telling the truth. On two occasions, Ambassador Shapiro informed the Venezuelan authorities of actions against the current administration." Brownfield did not clarify the origin of these actions.

"The first time was in April 2002, when he spoke to the (Venezuelan) president about the possibilities of a coup," said Brownfield.

On Apr. 11, 2002, Chávez was ousted in a short-lived coup, and business leader Pedro Carmona was named de facto president. But just two days later, Chávez was restored to power by loyal factions of the military, backed by massive popular demonstrations.

"The other time was in September or October, when (Shapiro) spoke with Vice President Rangel about a possible assassination attempt," said Brownsfield, who added that in both cases, the former ambassador was acting as required by U.S. law.

In January, Cuban President Fidel Castro, a staunch Chávez ally, also warned of plans to kill the Venezuelan leader.

Middle East blogging

Nadezhda points us again to a fascinating take on the impact of the internet in the Middle East, by Joseph Braude in The New Republic:

Last week in Bahrain, protestors covered their mouths with tape and silently demonstrated in front of a prosecutor's office; they are demanding the release of a local webmaster accused of "inciting resentment against the government" via his site, Bahrain Online. Several weeks ago an Egyptian blogger announced what he claims is the region's first-ever threat to bloggers by the secret police. Other bloggers, like this one in Syria, write that they are worried of potential interrogations. Two years ago in Tunisia, a man was imprisoned for 18 months for running the site TUNeZINE, which was critical of the government. And recently in Saudi Arabia, a religious court flogged and imprisoned 15 people for trying to march against the government; the instructions to march had come from a Saudi webmaster in London who operates a digital radio station.

These incidents are symptoms of a larger trend: The Internet is now a destabilizing force to Arab governments, some of which are trying and failing to bottle it back up. Despite its relatively modest penetration in the region, the web is threatening the status quo--in societies as conservative as Saudi Arabia and police states as tightly run as Syria and Tunisia--in ways that previous technologies never could. That's in part because it is making obsolete the strategies that Arab governments had used for centuries--with almost perfect success--to quash dissent and cling to power. It may be trite to speak of the Internet's transformative power; but in the case of the Arab world in 2005, it appears increasingly to be real.

...it seems likely that the web's most crucial impact on Arab politics won't be in alerting the west to human rights abuses or rallying support in the international community; it will be in allowing Arab dissidents to talk to one another and coordinate their activities.

Money Laundering in El Salvador

The State Department's 2005 International Narcotics Control Strategy Report was released this week, and Salvadoran papers were all about what great progress the government had made. I decided to take a look, especially curious about the money laundering volume and what it had to say, given the persistent rumors of money laundering through the enormous construction of an endless number of commercial malls.

First, the context:

Located on the Pacific coast of the Central American isthmus, El Salvador has one of the largest and most developed banking systems in Central America. Its most significant financial contacts are with neighboring Central American countries, as well as with the United States, Mexico, and the Dominican Republic. The January 2001 adoption of the U.S. dollar as legal tender, along with the size and growth rate of the financial sector, makes the country a potentially fertile ground for money laundering.

Then, the problem:

Most money laundering is related to narcotics-trafficking, and, to a lesser degree, kidnapping, corruption, counterfeiting, fraud, and contraband. Criminal proceeds laundered in El Salvador are primarily from domestic criminal activity. There is no significant black market for smuggled goods. Most money laundering occurs through fund transfers between local banks and banks in the United States, the Dominican Republic, and Europe. El Salvador’s financial institutions engage in currency transactions that include large amounts of U.S. currency, and could involve the proceeds of international narcotics-trafficking. It is believed that money laundering proceeds may be controlled by narcotics-traffickers or organized crime.

Decree 498 of 1998, the "Law Against the Laundering of Money and Assets," criminalizes money laundering related to narcotics-trafficking and other serious crimes, including trafficking in persons, kidnapping, extortion, illicit enrichment, embezzlement, and contraband. The law also establishes the Unidad de Investigación Financiera (UIF), El Salvador’s financial intelligence unit (FIU), which is located within the Public Ministry. The UIF has been operational since January 2000. The Policía Nacional Civil (PNC) and the Central Bank also have their own anti-money laundering units.

And then, what El Salvador has managed to do about this:

There were no arrests for money laundering or terrorist financing in 2004. However, two persons were prosecuted on charges of money laundering in 2003. One was convicted and sentenced to serve a prison term of seven years. This was the first conviction for money laundering under Decree 498.

In summary, here are the facts:

• El Salvador is "potentially fertile ground for money laundering," especially given it's central role in finance throughout the region, and given dollarization of the economy.

• Large currency transactions "could involve the proceeds of international narcotics trafficking." But in case you're not reading well between the lines, "It is believed that money laundering proceeds may be controlled by narcotics-traffickers or organized crime." Now why would you have a belief about the origins of a money laundering problem that is only potentially a problem?

• Despite this belief that money laundering exists, and that it may be related to narcotics trafficking, State can't put anything concrete about it in this report because, rather conveniently, there were no arrests for money laundering in 2004, and in fact there's only been one conviction in the past five years that the Financial Intelligence Unit in the Attorney General's office has been functioning.

And we wonder why there's no bad news to report?

Corruption: When is a problem not a problem?

Update: I'm reposting this for a later date, because I think it may have gotten buried in yesterday's posts. Upon further reflection, I also wonder whether the Foreign Policy editor's perspective on this is tainted by his Venezuelan background. I mean who among us mourns the resignation of any of these Latin American leaders accused of corruption? The most problematic place is Venezuela, where the corrupt establishment was replaced by Hugo Chávez, with whom we know Moisés Naím is not happy.

Moíses Naím has a short, provocative piece in the current issue of Foreign Policy on how the "the war on corruption is undermining democracy, helping the wrong leaders get elected, and distracting societies from facing urgent problems." The problem is especially acute in Latin America, where Naím argues this fixation on corruption is politically destabilizing.

Popular impatience, exacerbated by the belief that nearly everyone at the top is lining their pockets, unreasonably shortens the time governments have to produce results. Since 1990, 11 Latin American heads of state were impeached or forced to resign before the end of their terms. In each case, corruption was a factor.

Naím urges the following:

Simply telling these countries to shake off the shackles of corruption—as foreign investors, politicians, leaders of multilateral institutions, and well-known journalists so often do—is worse than no advice at all. We should be encouraged by the fact that so many forces are aligned together in the fight against corruption. But before we engage the enemy, we should take the equivalent of the Hippocratic oath, and promise to first do no harm.

But is the so-called "war on corruption," the one that Naím says is sweeping the world and unintentionally undermining demcracies everywhere, really a problem?

In such cases, I turn to a good friend of mine who's quite the expert on anti-corruption, having experience with several international institutions and worked on several continents. This was the response I got (emphasis mine):

Like a child having a tantrum, knowing the issue won't go away but wishing it would anyway. Let me see if I follow:

1. Corruption is a terrible scourge and I'm terribly against it (but not really, come on, China is doing GREAT! Just focus on other problems and, well, just do no harm and, while you're at it, stop talking so much about corruption -- but, by the way, no one will pay more taxes or get better services until you do something about it but, never mind about that, move on to greener pastures!)

2. There is this global tsunami of powerful actors and these "powerful" anti-corruption czars everywhere! (The reality is that this "grand coalition" he builds up actually consists of some window-dressing/ toothless/ underresourced czars, 1-2 NGOs and a ton of very angry voters with a few bad choices come election day.)

3. OK, corruption really does exist and there really has been a corruption explosion and it affects all these other problems that matter but all voters in developing countries are the REAL problem -- your "obsession" with this issue is mucking things up. (I guess his basic point here is that they are, well, right but, um, wrong and should acquire more convenient, less mettlesome opinions about some problems that we actually know how to solve.)

So much cognitive dissonance here I don't even know where to start.

Perhaps Naím needs to get out of Washington a bit more often.

Digging into the past on the "Salvador Option"

A couple of months ago (seems like years ago), I wrote Doyle McManus of the Los Angeles Times about a story he'd written during the mid-1980s in which Ollie North revealed a secret CIA program to aid the Salvadoran military. I'd brought up this point in passing, as I tried to argue why I thought what the US military guys in Iraq were talking about was not US secret support for "death squads," but rather programs that constituted a more, shall we say, acceptable element of counterinsurgency.

Well, McManus just wrote me back with his article -- "I had forgotten that I had written it!" -- and I think it's worth reproducing here in its entirety. (Let's just say the public interest trumps copyright claims in this case). And, if anyone's still paying attention, I'd be interested to know if you still think that this was not what was being referred to by the military guys quoted in the Newsweek piece.

Los Angeles Times
Thursday July 9, 1987

Inquiry Discloses CIA Officers' Aid to Salvador Army

Home Edition, Main News, Page 1-1
National Desk
17 inches; 585 words

By DOYLE McMANUS, Times Staff Writer

WASHINGTON -- Congress' investigation of the Iran- contra scandal Wednesday revealed a previously secret program that sent CIA paramilitary agents into the battlefield with the army of El Salvador, U.S. officials said.

Notes made by Lt. Col. Oliver L. North, then a White House aide, revealed that the CIA ran a program of long-range reconnaissance patrols--daring, small-unit expeditions into territory held by leftist Salvadoran guerrillas--until 1985.

"I thought that was a classified program," North protested when House chief counsel John W. Nields Jr. read parts of his notes aloud during the public hearing. "It has nothing to do with the Nicaraguan resistance."

North himself made another unexpected disclosure during the hearing: He said CIA Director William J. Casey believed that the government of Honduras diverted U.S. foreign aid funds to buy weapons--which the Hondurans then intended to sell to the contras for a profit.

North said Casey warned him to keep his secret arms-buying operation for the contras at arm's length from the Honduran-sponsored arms brokers because of "potential adverse consequences"--presumably meaning the uproar that would ensue if U.S. economic aid funds were used to buy weapons for the rebels.

No Confirmation

U.S. officials said they could not confirm that Honduras had used economic aid funds to buy the weapons, but they acknowledged that the issue has been under investigation.

A group of Honduran military officers and American arms brokers bought several million dollars worth of weapons and stored them in a warehouse near Tegucigalpa in hopes of selling them to the contras, whose main bases are in Honduras, the officials said.

"Casey, in particular, was very concerned about the source of their monies," North testified. "At one point, he apprised me that he was concerned that that Central American country might have diverted ESF monies--U.S. economic support funds--to the military, to purchase the arms that went in that warehouse. And so he told me that there shouldn't be any further transactions with that broker."

Officials said it would be illegal for Honduras to use ESF funds to buy weapons.

In the covert program in El Salvador, officials said the CIA organized and led special Salvadoran Army anti-guerrilla units to track the leftist rebels who have been fighting to overthrow the U.S.-backed Salvadoran government.

The use of CIA officers to train the units--known as "Long Range Reconnaissance Patrols," or "LRRPs"--allowed the Reagan Administration to secretly exceed its publicly declared limit of 55 American military advisers in El Salvador, two officials said.

The CIA agents were also allowed to accompany the units into the field, they said, unlike U.S. military advisers, who are under orders to stay out of harm's way.

Possible Flap

Officials said the CIA program could have caused a major political flap had it been exposed before 1984, when U.S. military aid to El Salvador was highly controversial.

However, Congress' intelligence committees were informed of the operations at the time and did not object, Administration and congressional sources said.

"They were spectacularly successful," one official said. "Their mission was to infiltrate deep inside guerrilla territory, find the guerrillas and call in aircraft to hit the targets."

It could not be determined how many CIA officers were involved in the covert program, or whether any had been directly involved in battle. Long-range reconnaissance patrols normally attempt to avoid contact with the enemy so that they can continue moving undetected through hostile territory, one official said.

As the Salvadoran Army gained expertise in anti-guerrilla operations, the CIA phased out its program and turned over its advisory functions to the U.S. military group in El Salvador in 1985, the officials said. They said that the military advisers do not accompany Salvadoran patrols into the field.

Nields disclosed the operation when he read North's notes of a 1985 conversation with Gen. Paul Gorman, then commander of the U.S. armed forces' Southern Command, which directs military operations in Latin America and the Caribbean.

Desperately seeking justice in El Salvador

I've been lazy about blogging about El Salvador in recent days, so the easiest thing is to point you to Tim's El Salvador Blog. He has a new post up about the appellate court's decision to reverse the $54.6 million verdict against two retired Salvadoran generals accused of being responsible for the torture of citizens during the Salvadoran conflict. Tim's a lawyer by profession, so has some good lawyerly analysis to offer, and he brings that lawyerly caution in his sober analysis of all-things-Salvadoran.

He doesn't so much lament the U.S. decision as the state of justice in El Salvador:

The tragedy is not that the US courts are now closed to victims of a brutal civil war, torture and death squads in El Salvador. A valid argument can be made that the US courts cannot and should not be the courts of last resort for human rights violations in various parts of the world over the past several decades. The real tragedy is that El Salvador never developed a judicial system of its own which could handle such claims.

Then he goes on to note that an amnesty implemented shortly after the Truth Commission report prevented the prosecution of past crimes. True, but that doesn't really excuse or necessarily explain efforts since then to reform the judicial system. Furthermore, an argument can be made that the amnesty was essential for the implementation of other key transitional justice measures in the peace accords, namely the implementation of the recommendations of the Ad-Hoc Commission, which recommended the firing of over a hundred top officers. The U.S. Embassy argued as much at the time (as we know now from cables such as the following one, released under FOIA):

This report—and particularly the unresolved issue of a general amnesty—may complicate President Cristiani’s ongoing effort to effect the removal of the final 15 active duty ESAF officers who were cited by the AHC. These officers are unlikely to step down until the amnesty issue is settled, since there is greater legal and physical protection for them within the military

I tend to think the Embassy may have been right about this. Unlike many other places in Latin America, in fact, there is very little popular sentiment for reopening the wounds of the past. It's also worth noting that the main political actors essentially agreed, secretly, that an amnesty would be necessary as a part of the process. That's why the only thing the UN Secretary General criticized about the measure at the time was that it wasn't fully discussed before getting rammed through the Legislative Assembly.

Having said this, I'm glad that Tim brings the focus back to the responsibility of El Salvador in moving forward in in the reform of its system of justice.

Globalizing the Supreme Court's thinking

The ever vigilant judicial watcher, Chuck Lane of the Washington Post, has a keen observation in today's paper on yesterday's Supreme Court ruling against the death penalty for juveniles:

For the Supreme Court itself, perhaps the most significant effect of yesterday's decision is to reaffirm the role of international law in constitutional interpretation.

The European Union, human right lawyers from the United Kingdom and a group of Nobel Peace laureates had urged the court in friend-of-the-court briefs to strike down the juvenile death penalty.

In saying that this strong expression of international sentiment "provide[s] respected and significant confirmation for our own conclusions," Kennedy lengthened the recent string of decisions in which the court has incorporated foreign views -- and decisively rejected the arguments of those on the court, led by Scalia, who say it should consider U.S. law exclusively.

There were actually six votes in Kennedy's favor on that point yesterday, because in her dissenting opinion O'Connor agreed with Kennedy that international trends affect the meaning of "cruel and unusual punishment" in modern times.

I'd like to hear about further commentary on this issue, if anyone knows of any.

UPDATE: Publius over at Legal Fiction has unknowingly answered my request, for sometime in the near future: "It's simply a great case study for both lawyers and non-lawyers. It shows Scalia's jurisprudence at both its best and worst. It also gives me an opportunity to justify the reference to international norms." Keep an eye there, if you're interested.

Also, in a humorous jibe at Glenn Reynolds, Julie Saltman finds an unlikely (and rather illogical) supporter of international norms creeping into Supreme Court decisions.

Further Update: The Economist also reminds us of this precedent:

But it is not the first such case. In the 2002 ruling in Lawrence v Texas, the Supreme Court struck down a state statute forbidding private homosexual conduct. The court ruled that: “Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance…[T]o the extent Bowers [a previous case that had upheld the anti-sodomy law] relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct.”

Ken Anderson, my old colleague from Human Rights Watch, now a professor of law at American University and one who holds some critical and unpopular notions about international nongovernmental organizations (many of which I share), takes this issue on directly. Apparently, this issue was broached in January when Justices Breyer and Scalia spoke at American U. You should definitely read Ken's post about that, as well as Julian Ku of Opinio Juris. Meanwhile, this is what Ken has to say about the ruling at hand:

The majority opinion, written by Justice Kennedy, went wildly farther than any other case in invoking international opinion, foreign law, and international law, and I find that very disturbing. It is particularly disturbing in that this is no longer merely a hobby-horse of Justice Breyer's, but something joined by Justices Kennedy and, remarkably, by Justice O'Connor, who dissented from the holding on the death penalty but specifically joined the majority in its reliance on international opinion.

Press coverage has been focused on this practice as though it will remain limited to Supreme Court cases. It will not. The language of the majority approving the practice of paying attention to foreign and international sources is more than broad enough to constitute an invitation to litigants in matters ranging from run of the mill statutory cases to the most profound Constitutional "values" cases - abortion, the death penalty, firearms, church and state issues, and free speech. Both ordinary lawyers and the whole human rights NGO community will now gear up to introduce all these materials into all levels of court cases in this country, with the blessing of the Supreme Court. The other side will have no choice but to respond in kind, seeking vindication of its own side in the same foreign and international materials. Judges will rapidly become used to the idea that this material is as good as any other.

I would predict that, unchecked by an explicit rejection of this material by the Supreme Court itself, the use of this material will spread throughout the US judicial system like an internet virus - because both sides will have to assume in any litigation that it now matters. Corporate defendants will have to search through all this material to find material for their own side; conservative legal groups will have to be able to come up with their own citations from this material, because they will have no surety that such material will not persuade the judge. Certainly numerous activist judges will find it a potent source of material for reaching their own subjective conclusions - just as Justice Scalia predicted and as the Supreme Court just did. But that won't be the worst of it. The worst of it will be the speed with which these materials and their invocation become utterly routine, far outside cases of judicial activism, with the strong possibility of a sea change in the nature of legal authority in this country. Indeed, I think the shift will at least begin to become widely noticeable up and down the court system - and essentially unstoppable - even by the end of Bush's second term.

There is really only one solution to a problem invited from the top, and that lies with a shift in the balance of power in the Court. I would say that attitudes toward foreign law and international legal materials in US constitutional adjudication has now risen to be at the very top of questions for prospective court nominees, and not just Supreme Court nominees. It is also time for Congress to take up specific measures to ensure that Article III courts are limited to US legal materials in Constitutional adjudication. This is the kind of long term, fuzzy, domestic issue that the Bush administration has shown itself frankly unable to focus on - too abstract, too long term, too indirect in its bad effects, and beyond the political event horizon - but it needs to understand the extraordinary nature of the end-run around US law that the Supreme Court has handed activists and NGOs, by handing it to everyone. It is actually a much more important long term issue than tort reform - yet it seems to me highly unlikely that the Bush administration will understand that the Supreme Court has essentially tossed down the gauntlet and that it must act, with Congress, now if it hopes to avoid, twenty five years from now, the conclusion that a sweeping invigoration of the legal materials underlying judicial activism of the Left took place on its watch.

Final update (I promise): More from Julian Ku and Ken Anderson. I'll let the lawyers battle this one out.

Calvin Trillin's latest

Ambassador John Negroponte's Intelligence on the Subject of Torture And Murder Squads

The man who's just been put in charge
Of knowing all will now assure us
That he knew nothing--nada, zip--
When he was stationed in Honduras.

from The Nation

International aid: "Millstone or Milestone"

Oxfam International and Action Aid International have a new brief out just in time for a March 2nd OECD High Level Forum in Paris, where the world's richest countries will meet to discuss how aid might help one billion people living in party.

I suppose I should have something more acutely analytical to say about this, but I'm just going to agree with most of what they have to say:

Two years ago in Rome, these same countries made a series of commitments to reform the aid system, and transform it into an effective instrument of change. But instead of celebrating progress, they will be confronted by the results of two years of inaction. This is a sorry tale of muddle and hypocrisy, dithering and stalling, with the world’s poor cast unwittingly in the role of fall guy. For example:

• Less than half of aid gets spent in the poorest countries, and only 10% gets spent on basic services that are critical to achieving the Millennium Development Goals
• 40% of aid continues to be tied to overpriced goods and services from the donors’ own countries
• 80 official agencies are responsible for 35,000 aid transactions a year that are imposing a massive administrative burden on some of the poorest countries.
• Aid conditions continue to impose donor blueprints, such as trade liberalisation and privatisation of essential services, with often devastating results for poor people

The lack of progress since Rome raises fundamental questions about the commitment of rich countries to the 2015 Millennium Development Goals. Without aid reform, these goals will not be met, and the ambitions of major donor countries to use 2005 as a turning point in international development will be jeopardised. Yet the script can read differently. In Paris, the donor agencies have the opportunity to make the OECD-DAC High Level Forum a milestone in international efforts to eradicate poverty, rather than a millstone for the world’s poor. To make aid an instrument of deep and lasting change, donors must agree to do some simple things to improve its efficiency and accountability.

If this is of interest, be sure to click here to read the full executive summary for a glimpse at their recommedations, or here for the full report.

Betting on Negroponte

What kind of bets these days are being given on Negroponte's chances of success as Director of National Intelligence? There seem to be at least a couple of opinions. For one, Jason Vest reports that intelligence veterans see "disaster on the horizon," because the DNI is "charged with completing myriad missions in an incredibly short time with woefully inadequate staff."

But Dana Priest appears to be somewhat more sanguine, noting in Sunday's Washington Post that the new DNI's role entails a historic weakening of the CIA:

Now, Negroponte will oversee the CIA and 14 other agencies that spend an estimated $40 billion a year on intelligence -- a reorganization by Congress largely in response to recommendations by the 9/11 commission, which said lack of coordination among those offices played a role in the U.S. failure to thwart the Sept. 11, 2001, attacks.

Not only will Negroponte replace the CIA director as the most important voice the president hears on intelligence matters each day, but other agencies, notably the Pentagon and the FBI, are seeking to take over some of the CIA's traditional case officer duties. Defense Secretary Donald H. Rumsfeld has tasked the military to send highly classified units into the field to collect human intelligence, using newly earned congressional authority to recruit foreign agents when it is helpful.

The FBI wants to replace the CIA's role in recruiting U.S.-based foreign officials to spy for the United States when they return to their homes. It is also trying to mimic the CIA's use of corporate contacts to gain information from overseas business travelers.

With the President's Daily Briefing soon to be in Negroponte's hands, intelligence officials said they expect dozens of CIA analysts who produce it to move over to his office. So will the National Intelligence Council, the nation's top intelligence advisory panel, which produces National Intelligence Estimates as well as analysis of long-term trends.

The CIA's science and technology branch may lose clout as well, intelligence experts said. Already the major technological capabilities -- namely satellite imagery and electronic espionage -- reside outside the CIA. Experts say Negroponte's deputy-to-be, Air Force Lt. Gen. Michael V. Hayden, wants to keep a major hand in technological issues. Currently, Hayden heads the National Security Agency, which manages electronic espionage.

Critics of the CIA's inability to gather more intelligence on al Qaeda -- and of its high-profile, high-stakes failure to accurately assess Iraq's weapons programs before the war -- say these changes are long overdue.

On the other hand, Priest also notes that intelligence reform might actually end up being more efficacious for the CIA:

In a recent executive order, Bush told Goss to increase the number of U.S. spies by 50 percent over a period of years.... Advocates of the reorganization say the new version of the CIA will be able to focus on its core mission. Gathering human intelligence "is simply going to be front and center," said Jamie S. Gorelick, a member of the 9/11 commission, which recommended the legislation. "They were trying to do too many things and weren't doing them well."

This makes it sound like the overall reorganization of the intelligence apparatus, although in for a challenging period of implementation, may actually enable the CIA to be the CIA.

Vest also notes there's a legislatively-mandated limit of 500 staffers for the new Director, but Priest mentioned in an online discussion at the Post a week ago that the number could go as high as 1400. Given the potentially (and I stress that word) rational division of responsibilities between the DNI and the agencies it supervises, 500 or 1400 doesn't strike me as awfully insignificant.

Before the CIA's critics sing "glory, hallelujah," however, for the demise of that favorite punching bag of the left, Priest leaves us with an important caveat:

Some intelligence experts worry that the reorganization will leave the CIA dangerously isolated from the heartbeat of U.S. policymaking. "You won't get the cross-fertilization, the healthy interaction between the collectors and the analyzers that you need to do intelligence work well," said Fred Hitz, a former CIA inspector general. "When you isolate yourself, you become detached from the policy issues," a former head of the clandestine service said. "You don't let the air in. The smaller the group that approves a covert action, the greater the propensity for failure."

However this shakes out, and no matter how he got there, Negroponte may well not be the weak DNI that some have suggested. Meanwhile, the dangers associated with covert operations --run out of the military or the CIA -- may well have increased.

UPDATE: In the comments section here, Max asks: "what are the implications of putting such an obvious apparatchik in this position?"

I give a lot of weight to veteran DC reporter Jim Lobe of Inter Press Service, who had this to say a few weeks ago:

WASHINGTON, Feb 17 (IPS) - In choosing Ambassador John Negroponte as the country's first National Director of Intelligence (NDI), U.S. President George W. Bush has opted for a hawkish, tough, ruthless realist who could very well clash with more ideological forces in the administration.

...Negroponte's controversial tenure in Honduras has to date failed to derail what is widely regarded as one of the most impressive careers in the foreign service of the last generation. After Honduras, Negroponte served as ambassador to Mexico, the Philippines, the United Nations, and, since coming out of retirement last July, in Iraq, winning praise in each locale for shrewdness, discretion, and effectiveness.

As important, perhaps, in the present context is his association with the "realist" faction within the administration. A long-time friend of former Secretary of State Colin Powell, for whom he served as deputy national security adviser under Ronald Reagan, Negroponte is generally considered to be a pragmatist -- albeit one with a hawkish reputation that dates to his work as a young diplomat in Vietnam in the 1960s and later as an aide to former Secretary of State Henry Kissinger.

As ambassador in Baghdad, he oversaw the effective transfer of U.S. policy in Iraq from the Pentagon to the State Department.

With Powell's departure, an ongoing purge by CIA director Porter Goss of the top operational and analytical ranks of the agency, and the pro-democracy, missionary -- not to say messianic -- rhetoric of Bush's Inaugural and State of the Union addresses, many analysts have concluded that the more-ideological wing of the administration, concentrated in the civilian leadership at the Pentagon and in the office of Vice President Dick Cheney, have a clear field in Bush's second term.

But that conclusion may yet prove premature. Despite her adoption of Bush's rhetorical style, Secretary of State Condoleezza Rice has made a series of appointments -- specifically Trade Representative Robert Zoellick to be her deputy and NATO Amb. Nicholas Burns to the number three post at State -- that suggest Foggy Bottom will remain a realist stronghold in the second term.

Moreover, the fact that Bush was inclined to choose a realist as his DNI -- before Negroponte, he had asked his father's first choice for CIA director, Robert Gates, to take the job -- adds to the notion that he remains open to advice from people who may not necessarily share the worldview of aggressive unilateralists like Cheney and Pentagon chief Donald Rumsfeld, neo-conservatives, and the Christian Right.

That assessment is further reinforced by Bush's choice to serve as deputy DNI, Lt. Gen. Michael Hayden, who currently heads the National Security Agency (NSA) and is also regarded as pragmatic and close to the leadership of the uniformed military, another realist, if hawkish, bastion.

...Negroponte, unlike some senior officials around Bush, is considered much less likely to shade the intelligence according to what he believes the president wants to hear.

Since he resigned his position under Kissinger to protest what he considered to be his boss's betrayal of South Vietnamese leaders during the Paris peace negotiations in the early 1970s, he has gained a reputation for supreme self-confidence and speaking his mind in private, even if he hews to the official line in public.