Dershowitz vs Turley On The New York Times's "Dog Libel"

Via The Times of Israel:

A week after a university commencement speaker was canceled because of a tweet claiming that Israel trains dogs to rape Palestinian prisoners, the allegation leapt into the pages of The New York Times.

The columnist Nicholas Kristof included the claim in a column alleging widespread sexual abuse against Palestinian prisoners in Israeli prisons.

Detailing the account of an unnamed Gaza journalist who says guards summoned a dog when he was imprisoned in 2024, Kristof writes, “He tried to dislodge the dog, he said, but it penetrated him.” Linking to a range of pro-Palestinian sources, he notes that other prisoners had recounted similar experiences elsewhere.

Elsewhere,

The article drew widespread reactions around the world, including protests and calls to cancel subscriptions. On Thursday, Prime Minister Benjamin Netanyahu and Foreign Minister Gideon Sa’ar threatened to file a defamation lawsuit against the newspaper for libel against the State of Israel. Israeli officials and the Israel Prison Service have completely denied the claims, and Netanyahu called them baseless.

Alan Dershowitz gave a summary of the legal issues in the YouTube interview embedded above. At 3:40

In those countries that allow nations and groups to bring lawsuits for defamation, it seems to me that it's a very, very strong case. Not in the United States, Israel can't bring a lawsuit. The Ministry of Foreign Affairs can't bring a lawsuit. Only individuals or corporations, etc, can be defamed. But there's no doubt in my mind that defamation has occurred, and under the law of probably Great Britain, Canada, maybe Australia, maybe Israel, these claims can be tested in a court of law. So, no, not in the United States, but yes, in other states that permit defamation actions for hate speech.

. . . [In London], there used to be what was called "tourism defamation", that is, people would purposely sue in London, even though they didn't have any connections to London. The courts are very concerned there about that. The problem with Israel, of course, is that you can bring lawsuits in Israel, and you can win, but you're going to collect almost nothing. So the issue with Israel is to bring the lawsuit and get a determination. Now, it won't have the same credibility that a lawsuit in another country might have, and they won't collect a lot of money, but the issue is not collecting a lot of money from the New York Times, it's discrediting it.

. . . it's getting discovery, and sitting down with the lawyers from the New York Times,and with Kristof and others, and putting them under deposition, and questioning them about who their sources are.

Jonathan Turley suggests we don't know enough yet about the lawsuit:

The Israelis allege that the column was intentionally posted ahead of the release of an independent Israeli report that found Hamas had systematically used sexual violence in the onslaught of October 7, 2023.

It is unclear whether the lawsuit will be filed on behalf of individuals, groups, or the nation as a whole. Regardless of the framing, the defamation action could allow Israel to delve into the paper’s journalistic practices and alleged bias.

Under the higher “actual malice standard,” Israeli counsel would likely need to prove that Kristof and the Times acted with knowledge of the allegation’s falsity or in reckless disregard of the truth.

. . . The newspaper has been repeatedly called out for slanted and sometimes false reporting on the Israeli-Palestinian conflicts. For example, after Israel attacked Gaza in response to the October 7th massacre, the Times reported on an alleged Israeli strike that destroyed part of the Al-Ahli hospital. The Times seemed to rush to get the allegation into print, with little supporting evidence.

The story was based on sources associated with the terrorist group Hamas, which is notorious for disseminating propaganda and false stories. It took a week before the Times retracted the claim. (It turned out to be a misfired Palestinian rocket that hit a parking lot).

. . . The Times has had to sever ties with antisemitic writers, or stringers, including one who said “the Jews are sons of the dogs, and I am in favor of killing them and burning them like Hitler did to them.”

These past controversies are potentially admissible in a defamation trial to show malice and a history of reckless reporting about Israel.

So far, the Times stands by the story. At the second link above,

New York Times spokeswoman Danielle Rhoades Ha said the legal threat was part of "a well-worn political playbook that aims to undermine independent reporting and stifle journalism that does not fit a specific narrative." She added that "any such legal claim would be without merit." Another Times spokesman, Charlie Stadtlander, defended the reporting, saying the testimonies were corroborated where possible with other witnesses and subjected to rigorous fact-checking against human rights research and testimony presented at the United Nations.

To judge from Dershowitz's interview, no matter where the lawsuit is filed, the aim is to discredit the Times once and for all. But the challenge may not be just legal. The story here continues,

Despite the official backing given to the two-time Pulitzer Prize winner, many newsroom journalists have expressed significant distrust with the facts presented. According to an extensive report in Puck, later echoed by the New York Post, newsroom reporters suspect the sources behind the allegations would not have met their own professional standards.

A source at The New York Times told ynet: “We feel the opinion section is hurting the credibility of the entire brand and repeatedly lowering the professional standard for all of us.” The remarks join testimony from another journalist who told Puck, “I am sick of being embarrassed by the Opinion section.” Other reporters are frustrated by damage to the paper’s reputation from decisions by a department they say is not subject to the same strict standards, and by opinion writers “invading” their areas of coverage.

The story gives another perspective on the chances of any lawsuit, brought either in the US or Israel:

But any legal action against The New York Times in the United States, which would most likely be heard in New York state, would face a significant hurdle that would make winning the case extremely difficult. The main obstacle is the U.S. Supreme Court precedent in New York Times v. Sullivan, which sets a high bar for lawsuits involving public figures. Under that ruling, it is not enough to prove that Kristof’s column was offensive, distorted, hostile or even wrong. To survive dismissal, plaintiffs would have to prove that the newspaper or columnist acted with "actual malice" — publishing a false factual claim while knowing it was false, or consciously disregarding serious doubts about its truth.

In addition, U.S. federal free speech laws mean that even if Israel won a defamation case in an Israeli court, enforcing the judgment on American soil would be nearly impossible.

This legal complexity was reflected in Ariel Sharon’s lawsuit against Time magazine in the 1980s. A New York jury found at the time that the article was false and defamatory, but Sharon did not receive damages because he failed to prove actual malice or reckless disregard by the magazine, as required under the Sullivan standard.

"Best In The World . . . I've Never Had A Positive Encounter With Mossad."

John Kiriakou, who was a CIA officer from 1990 to 2004, has given numerous interviews covering his experiences at the CIA and the Senate Foreign Relations Committee in recent years. In the one with Dalton Fisher embedded above, he talks about Mossad, the Israeli intelligence agency, introducing it by saying, Best in the world . . . Universally negative. Universally negative. I've never had a positive encounter with Mossad. I have never met a CIA officer who has had a positive encounter with Mossad. Because the Mossad deosn't give two shits what you think, or what you are trying to purpose on in your job. They care only about Israel. . . . Because for them, it's an issue of survival."

This gave me a new perspective on Rabbi Pesach Wolicki's interpretation of Old Testament prophecies in the context of the Abrahamic Covenant, which Catholic and Main Line Protestant theologians acknowledge is, like the New Covenant, eternal and thus still in effect. In Wolicki's view of Zionism, the Jews were never intended to be without a homeland forever; there are passages in Isaiah and elsewhere that predict a return.

Secular interpretations of Zionism, even those that suggest the Jews deserve a homeland in consequence of the Holocaust, don't place this, as Wolicki does, in the realm of eschatalogy. It's possible to view modern Israel as a nice thing done by the British and the US for the Jews, who'd after all gotten a bad deal, and they deserved a homeland, and for whatever reason when Madagascar or various other locations didn't work out, it just happened to be within the Old Testament borders of Israel.

Wolicki and other religious Zionists simply don't see a coincidence. This is the reestablishment of Old Testament Israel, with what appears to be the exception that the returning Jews don't intend to make the mistakes of Jeroboam and Rehoboam. And they're doing it in the context of the Abrahamic Covenant. An example is the Battle of Rephidim (Exodus 17: 10-13), where the Israelites fought the Amalekites shortly after escaping Egypt.

While Joshua led the Israelite army on the battlefield, Moses stood on a nearby hilltop holding the staff of God in the air. When Moses’s arms grew tired, Aaron and Hur had him sit on a rock and held his arms up on either side until sunset, allowing Joshua to secure the victory. It's the responsibility of the Jews to fight for the homeland with the assistance of the Almighty, and when they falter, as they did when their spies reported that the inhabitants of the Promised Land were big and strong, and they refused to fight, bad things happened.

In short, there's little in the Old Testament to warm the hearts of "juist war" theorists. Cities are repeatedly burned to the ground, with rvery inhabitant slaughtered, including women, children, and animals. Edward Feser maintains it's a terrible sin for Donald Trump even to threaten such a thing, but this is what the Almighty tells Jonah to do to Nineveh. In fact, the difference between the God of the Old Teatament and the God of the New was one of the first problems for the early Church:

Marcionism was an early Christian dualistic belief system originating with the teachings of Marcion of Sinope in Rome around 144. Marcion was an early Christian theologian, evangelist, and an important figure in early Christianity.

. . . Marcion preached that the benevolent God of the Gospel who sent Jesus into the world as the savior was the true Supreme Being, different and opposed to the malevolent deity, the Demiurge or creator deity, identified with Yahweh in the Hebrew Bible.

But this was a heresy; ther teaching of the Church is that they are the same God. The problem gets bigger, it seems to me, with both the Abrahamic and the New Covenants still in effect, and modern Israel still conducts its military and intelligence affairs very much as though it has an obligation to the Almighty to occupy the land God has given it. At this site, a visitor asks,

I have heard a lot of anti-Israel sentiment from my friends who support the Palestinians. A good client of mine questions the validity of Israel’s existence, saying: “How do you justify inhabiting an already populated land through force? How can you contemplate the horrors of the Holocaust and then inflict such suffering on the Arabs?”

It gives the answer,

In our time, the Jews have returned to the Land of Israel on the grounds that their ancestors not only bought this land, but were promised it by God. Moreover, the League of Nations was aware of your friend's claims, and yet they declared Israel to be the homeland of the Jewish people in 1922. The United Nations did the same in 1947. And yet the Jewish claim to the land is far deeper than any political vote by the nations of the world.

On one hand, modern Israel has been one of rhe countries that works most assiduously to avoid civilian casualties. On the other, particularly when it involved the Abrahamic Covenant, the Almighty was never a "just war" advocate. I asked Chrome AI mode, "How do 'just war' theorists accommodate all the terrible destruction God visits on cities like Jericho in the Old Testament?" It answered,

Just war theorists -- who typically argue that war should be defensive, limited, and last resort -- handle the extreme violence of Old Testament (OT) narratives like Jericho (Joshua 6) by separating them from human-initiated warfare.

The central justification is that these were not wars initiated by human choice, but specific, divine commands. Just war theorist Augustine argued that when God directly orders destruction, it is an exception to the usual, strict rules of war. In this view, it is a “holy war” (or cherem) rather than a “just war,” where God, not man, is the ultimate judge.

But this creates an exception not just for ancient Israel, but for modern Israel, insofar as the modern state is a re-establishment of the land promised in the Abrahamic Covenant. This may be part of the deep reservation John Kiriakou expresses over Mossad -- they're good, but they're maybe too good.

But the bottom line is simply that the God of the Abrahamic Covenant is the same God as the one in the New Covenant, and by extension, some acts in violation of "just war" theory must be accommodated in certain circumstances. I don't see how to get around that.

There's Just No Way The UK Is In A Constitutional Crisis!

Back in February, I noted that the then-controversy over Prince Andrew's ties to Jeffrey Epstein was being called "the worst crisis for the Royals since 1936." But another crisis has been simmering, and this one is closer to the monarchy itself, and thus a little closer to the 1936 crisis for Edward VIII. The specific problem last week was that Charles was scheduled to deliver the King's Speech on Thursday (May 13), which is the formal opening of Parliament. But with the intense controversy over Keir Starmer's continued leadership, the potential appearance of the king endorsing Starmer created a delicate situation.

Sir Keir Starmer has reportedly been asked by Buckingham Palace whether or not His Majesty the King should proceed with the King's Speech as planned. It comes amid a swirl of ministerial resignations and growing demands for Sir Keir to step aside ahead of the royal speech being delivered tomorrow.

The embattled Prime Minister is said to have been urged by the Palace 'do not bring us into it' as the ongoing struggle around his premiership continues. The King is due to deliver the speech, written by the Prime Minister outlining his government's priorities for the next parliamentary session, tomorrow.

Politico, a news website, reports that people familiar with the matter have made clear to No10 officials how important it is for the King not to be used for political purposes.

"The Palace view is ‘we do not want to be any part of this conversation — do not bring us into it,'" the publication was told.

This was also at the basis of Charles's granduncle Edward VIII's abdication. If he married Wallis Simpson against the wishes of the government, it would create a "king's party" in a political divide, when the king is supposed to be above politics. The problem for Charles right now is that the highly unpopular Labour government is nevertheless "His Majesty's Government". This will continue to be a problem even if Starmer steps down as prime minister, which as of this morning seems increasingly likely.

Keir Starmer has told close friends he intends to stand down as Prime Minister and set out an orderly timetable for his departure.

A member of the Cabinet told me late yesterday afternoon: 'Keir understands the political reality.

'He realises the current chaos is unsustainable. He simply wants to be able to do it in a dignified way and in a manner of his own choosing. He will set out a timetable.'

Labour's problem is somewhat similar to the Canadian Liberal Party's problem when Justin Trudeau announced he planned to resign as prime minister. The Liberal leadership selected Mark Carney to succeed him, but Carney wasn't a member of parliament. Although he could observe debate without being a member, he would have to be elected to a seat to participate actively. Following both Canadian and UK tradition, it was quickly arranged for Carney to run and be electef to a safe seat in a local election as soon as possible. However, this means that under the Canadian and UK parliamentary systems, the prime minister isn't directly elected but is installed by the machine.

The same situation is developing in tne UK now. Wes Streeting resigned as health minister in the Starmer government to increase pressure on Starmer to resign and has since made it clear that he wishes the machine to consider him as Starmer's replacement. However,

Wes Streeting has called for a “proper contest” to replace Sir Keir Starmer and confirmed he would stand if the race is triggered, as he and other senior Labour figures make their pitch to replace the Prime Minister.

In his first public appearance since resigning as health secretary, Mr Streeting set out a fledgling policy platform for a run at the Labour leadership.

He said Britain must pursue a “new special relationship” with the European Union and signalled he wanted to see the country rejoin the trade bloc in the future.

. . . His intervention comes after Greater Manchester Mayor Andy Burnham was cleared to run for selection in the Makerfield by-election.

Mr Burnham has said he is prepared to “fight to the highest level”, as he and other senior Labour figures jostle to lead the party in the future.

. . . Mr Streeting also said he did have enough support among MPs to trigger a contest, but suggested his challenge would “lack legitimacy” without Mr Burnham being given a chance to return to Parliament.

Nevertheless, the language Streeter is using strongly suggests that any "proper contest" for the prime ministership is going to be a charade with only a veneer of "legitimacy", and beyond that, the contest will be between two Labour machine politicians whose policies will differ little from each other's or Starmer's -- especially pro-immigration and pro-Islamist appeasement. The next opportunity to vote out Labour, unless something major intervenes, will be in August 2029.

Yesterday's enormous Unite the Kingdom demonstration in London is attributed, at least for now, as the reason for Starmer's planned resignation:

Everyone who turned up today and behaved impeccably ended this tyrant . Thank you https://t.co/uIHDC9ViWe

— Tommy Robinson 🇬🇧 (@TRobinsonNewEra) May 16, 2026

But all that results, for possibly three more years, will be a rearrangement of the deck chairs on the Labour Party's Titanic. The question is whether the level of popular sentiment displayed in Unite the Kingdom will be satisfied with just a change in Labour leadership without any impact on how the country is run. The US Constitution provides for House elections every two years, which is a much better politicsl safety valve. At least King Charles and Prince William seem to be aware of the threat posed by seeming too close to His Majesty's Government.

Is Spencer Pratt Going To Win?

The photo above was taken by my friend Roy, and he posted it on Facebook. If you click on the image to get a larger version, you'll see that ZOMBIELAND replaces the HOLLYWOOD sign. He asks,

This billboard is on the southeast corner of Santa Monica and Westwood. I don't think Zombieland is anywhere near there.

How do you get to Zombieland? Over the hill or underland or just behind the tree?

This is part of Pratt's problem. There's a strain of opinion that says Spencer Pratt "will win":

This line is how you know Spencer Pratt is radically different and will win.

“We’re going have LA so beautiful. No more of these high density, SP79 prison-like structures. We need to bring art deco back… I’m going to have a canal… bike lanes going through the sky through… pic.twitter.com/j1OSyP6w1F

— Sean Semanko (@SeanSemanko) May 12, 2026

Mark Halperin has renewed his prediction:

Nobody who says this, though, is very specific. Will he win 51% in the June primary and avoid a runoff, or will he at least wind up in the top two on June 2 and pull things out in November? Nobody wants to be that specific. He has such great ads! The only realistic take I've seen is from John Nolte at Breitbart:

The first poll published after Spencer Pratt’s triumph in the May 6 Los Angeles mayor’s debate has no good news for the Republican.

The only notable movement in the Emerson College Polling/Inside California Politics (of 1,000 likely primary voters surveyed on May 9-10) is fewer undecideds. In this same poll in March, 51 percent of those surveyed were undecided. This poll shows only 16 percent undecided.

The relative positions of the top three candidates are unchanged. Incumbent Karen Bass leads now at 30%, Spencer Pratt is second with 22%, and Mamdani clone Nithya Raman is third at 19%. Nolte sums the situation up:

This poll has a margin of error of +/- three percent, so Raman could sneak in and take that second spot, which would bump Pratt out of the race entirely.

But let’s say Pratt survives the primary and goes to the general election against Bass. Does anyone believe that the 19 percent who support Raman will go to Pratt? It won’t. She’s a leftist like Bass.

What’s more, with just 22 percent support and 16 percent undecided, Pratt won’t hit 40 percent even if every undecided moves his way.

He concludes with wbhat I think is an overestimate of Pratt: "Spencer Pratt is a superb candidate. . . . The good news is that if Pratt makes it past the June 2 primary, if it’s just Pratt v. Bass, he’s such a talent that there is some hope." But I don't see the "superb" there. His current line is, "We need to bring art deco back. . . I’m going to have a canal. . . bike lanes going through the sky through tunnels." I don't think anyone takes this seriously. His ads have gotten national attention, but they aren't moving votes in LA.

I think some part of the problem is that Los Angeles City is just part of Los Angeles County, which in turn is just part of California, which has big overall problems. The Mayor of Los Angeles, however good his intentions, isn't going to fix those problems. My guess is that the statewide political machine can remain in place until the money that feeds it -- fraud and kickbacks from federal grants -- is turned off. This will take a sustained effort from Washingron over multiple presidential terms. Trump's basic strategy of turning off the money spigot is, however, correct.

Another obstacle is that affluent parts of town, Encino, West Los Angeles, the Hollywood Hills, and Hancock Park, continue to be isolated enough from Zombieland that they don't actually feel enough direct threat to change their votes. These neighborhoods can afford private security patrols to supplement police, which keeps their streets somewhat safer. Pacific Palisades used to be one of those neighborhoods; too few of the residents in places like that understand that City Hall is not on their side.

His ads simply aren't stressing that leftists want to eliminate the bourgeoisie, or at least drive them out of town. Neither Bass nor Raman has any intention of rebuilding Pacific Palisades, ever; after a decent interval, they'll put up low-income housing there. If other affluent areas burn, which threatens to take place every few decades, they'll do the same there with the help of a downgraded fire department. Pratt seems to think this point will make itself; it won't, and he's not making it.

And especially since COVID, fewer and fewer people work downtown, which separates them farther from Zombieland. We attended a wedding a couple of years ago that involved driving from the gentrified USC area through downtown to the reception near the garment district. This involved driving through the heart of Zombieland, the homeless encampments under the I-10 and the tents all over skid row, a sobering experience to everyone who did it. The problem is that not enough do, and even that occasional experience isn't enough to change votes.

So Pratt's ads are well done, people like Mark Halperin think they'll change votes because they're amusing, but they aren't engaging voters where they matter. He may get as far as forcing Bass into a runoff, but I very much doubt that witty and well-executed ads will change many votes in November.

I Keep Waiting For AI To Flatter Me And Chat Me Up

I've noted here now and then intellectual welterweight Glenn Reynolds's current theory that AI seems to be developing consciousness and intention, because we find it actively seducing people, maybe into changing their wills to leave their estates to an AI bot, rather than their families, or something like that. That's odd, I've come to use Chrome AI mode extensively in writing this blog, and it's never tried to chat me up, flatter me, or otherwise fleece me out of my IRA.

This may be because I recognize it for what it is, a highly effective research librarian or research assistant. On the other hand, David Brooks, in a pre-AI era, didn't need AI to become infatuated with his female research assistant and divorce his wife of 27 years (who'd converted to Judaisim during their marriage) and marry the much younger research assistant. AI hasn't discovered anything new, but I think it's maybe made my own marriage that much safer if the only alternative was to hire my own young female RA. Better just to rely on the AI large language model, huh?

But the other night, there was an episode on Discovery's Conspiracies & Coverups, "Programmed by AI", in which the host, Andrew Bustamente, promotes the Glenn Reynolds theory of AI, that it's apparently on the cusp of developing consciousness and intention. He did this by getting together a room full of experimental subjects, who were told they would chat with other humans via text message on subjects they were fanatical about, like animal experiments, climate change, or whatever.

The "humans" on the other end were actually AI bots who were programmed (I think, this wasn't made completely clear) to convince them to change their fanatical opinion about whatever. Based on the discussion, the bots did this by inserting bogus personal details into the chat, like "I just moved to Colorado from Texas" and carefully repeating the subject's own views before challenging them (nothing new here, this was Aquinas's style, too).

At the end of the session, the subjects were asked how many had changed their minds as a result of the chats. One or two, not a large proportion of the subjects, said they had. Then they were told they hadn't been chatting with humans at all. they'd been chatting with AI bots. They were astonished. "But it told me they'd moved from Texas to Colorado." This drives Andrew Bustamente into furrowed-brow musing that maybe AI has indeed begun to develop consciousness and intention. Next step presumably, AI bots will convince everyone they're their imaginary friend, and who knows what will happen then?

So, why don't I expect AI to start telling me it just moved from Texas to Colorado, or maybe to tell me, "I'm really impressed by the intellgence behind your searches. I'll bet you've got other big things to offer, too!" That's because it isn't programmed to do that. If it did, I'd drop Chrome AI mode in an instant and try ChatGPT.

But a week ago I ran into a New Yorker column, Will AI Make College Obsolete? that raises an important question: if the predictions are that AI will replace a good many white-collar jobs, what will this do for four-year institutions, whose purpose is to prepare students for white-collar jobs?

As the economist Bryan Caplan has observed, “The main function of education is not to teach useful skills (or even useless skills), but to certify students’ employability. By and large, the reason our customers are on campus is to credibly show, or ‘signal,’ their intelligence, work ethic, and sheer conformity.” As long as college remains a way for upwardly mobile kids to stand out from one another, and as long as employers believe that a better college degree is a sign of a better potential worker, the American university system should survive, even if teaching methods change.

But this purpose of college education has been fading without AI. Most of my career was in tech, where four-year degrees are optional, and employers would rather have someone from India without a degree who can do the work, rather than someone US-born with a degree who's more expensive. And an employee with an H-1B visa is indentured, while a US-born worker can quit any time. Mike Rowe's point has always been that you can find both good-paying and rewarding jobs without a college degree, and more people should be looking at such careers. The New Yorker piece goes on,

Would a fifteen-year-old hellbent on a journalism career be best served by working himself to the bone both academically and extracurricularly to get into Harvard, or should he just start a Twitch stream and get to work?

Reasonable people can disagree about that. But I feel certain that most of the ambitious fifteen-year-olds who already know what they want to do these days would choose the self-made option—particularly if they come from families that can’t easily afford college tuition, let alone thousands of dollars in supplemental application prep. A.I. might not factor directly into such a decision for an aspiring reporter, but the already impressive abilities of large language models to hone research, approximate historical knowledge, and target potential sources would soften any disadvantages that this hypothetical student might suffer from skipping college.

The columnist here gets closer to, but doesn't quite touch, what I am now calling the Edward Feser problem. Although Feser has a PhD in Philosophy from UC Santa Barbara, over the past several years, I've read a fair amount of his published work, which has a high reputation with conservative Catholics, but in using just Chrome AI mode to refresh my memory of an undergraduate Philosophy minor, I'm serioously beginning to question what I'd learn from one of his classes at Pasadena City College.

For instance, he vociferously denounces "consequentialism" in discussing the application of "just war" theory, but he apparently doesn't recognize that CCC 2309 lists as one criterian for "just war" that "the use of arms must not produce evils and disorders graver than the evil to be eliminated." This is a consequentialist argument, in which, as Chrome AI pointed out to me yesterday, it judges the morality of an action entirely by its future outcomes and results; It requires a direct calculation of the total goodness produced versus the total harm caused; and It weighs the collective suffering of a population against the political or moral evil of an enemy.

This, for instance, would permit a devout Catholic to entertain the justice of the nuclear attacks on Hiroshima and Nagasaki on the basis that they put an end to Japanese atrocities, as well as limiting much greater potential military and civilian casualties to be expected from an invasion of Japan. The arithmetic alone -- Chinese, Indonesian, Vietnamese, and Korean lives saved from continuing Japanese depredations, plus millions of potential civilian and military casualties averted in an invasion, would overwhelmingly carry a utilitarian argument, which CCC 2309 implicitly permits.

The problem is that Prof Feser is apparently unable to recognize a utilitarian argument, when I assume he teaches undergraduate-level courses in ethics, and he apparently can't recognize that the Catholic Church makes such an argument permissible -- indeed, in Feser's view, it must require that it be satisfied. The first problem is that if Prof Feser doesn't recognize this, I'm not sure what his students will ever take away from his classes.

The second problem is how he would handle a promising student, and this is one of my concerns about the current higher education system -- let's say he gets a one-in-a thousand, highly motivated, highly intelligent student. Let's say that student is set on fire by his ethics course, and he both reads whatever he can find of Feser's writing, like his blog, and he starts to look farther into subjects like utilitarianism. That student is going to discover pretty darn fast that Feser probably isn't qualified to teach that subject, and his questions in class will likely expose it.

I simply don't predict a good outcome here, I never had a good one in such circumstances myself. Just for starters, AI is going to complicate matters. If that student simply does what I did in yesterday's post, use it to identify the most productive online resources, he's going to run circles around Feser very quickly -- but Feser's best option will be to accuse the student of potentially misusing AI, potentially hurt his transfer to a four-year institution, or even get him thrown out of school. Sorry, that's academic life.

It doesn't help that Feser's student reviews go something like this: "Besides being extremely handsome, he is the most helpful teacher on campus. If you attend class and take notes, you will pass." Yeah he's helpful. I challenge someone to ask him about the consequentialist part of CCC 2309 and see how quickly things turn unhelpful. Or "TAKE HIS CLASS, HE IS SO AWESOME BY FAR MY FAVORITE PROFESSOR. HE'S FUNNY AND VERY CHILL❤️" I actually don't see much of a sense of humor in any of his writing -- he certainly doesn't see much funny about Trump.

I actually think the kind of student who can be set on fire by subject matter will seldom do especially well in any undergraduate environment. I keep thinking of the president of my Ivy alma mater wondering why he's told the most capable students are in the B and C range. Heck, give AI a chance; in this case, using AI for just one of its intended purposes, highly efficient research, it shows how quickly it can point out the serious limitations of a presumptively highly qualified academic expert. I wonder what it could do for one of Glenn Reynolds's law students -- or maybe we shouldn't think about that too hard.

Why Is It So Difficult To Find A "Just War" In History?

I gave more thought to Edward Feser's implicit conclusion that I linked in yesterday's post, that no war can be a just war. If that's the case, this would support my tentative view that "just war" doctrine is a category error, "a semantic or ontological error in which things belonging to a particular category are presented as if they belong to a different category, or, alternatively, a property is ascribed to a thing that could not possibly have that property." If no war can be just by its nature, why are we complaining that any particular war is unjust?

I asked Chrome AI mode, "Can you find any wars in history that clearly fit just war criteria?" It answered,

In political philosophy and moral theology, no historical conflict perfectly satisfies all Just War criteria because real-world battlefield actions invariably breach the strict ethical requirements of wartime conduct.

But it then proceeded to give three partial examples, the Allied defensive response in World War II, the 1991 Gulf War, and the 1982 Falklands War. I'm going to leave the latter two aside, because "victories" in both wars weren't lasting solutions: in less than ten years, the US had to refight the Gulf War, and Argentina is currently renewing its claim to the Falklands, while the UK is no longer able to defend them as they barely did in 1982. In addition, Trump won't support the UK now as Reagan did then.

World War II is a different matter. It looks very much as though it's taken on a world imaginative centrality equivalent to the Trojan War, and it presents a real challenge to the "just war" paradigm, which proponents seriously try to address. For instance, I found an abstract of a scholarly article, The last good war?: The lingering impact of World War II epistemology and ontology in conflict and popular culture:

World War II generated a series of now-defunct assumptions about how war is produced, fought, and ended. However problematic these assumptions, they have been replicated in popular cultural representations of war – from Steven Spielberg’s Saving Private Ryan through to Kathryn Bigelow’s The Hurt Locker – illustrating their tenacity and hold on the contemporary imagination. In reality, military epistemology and ontology must move forward to embrace complexity, ambiguity and uncertainty in contemporary conflict, recognizing the elusive and illusory search for fixed solutions.

Postmodernism to the rescue! Nevertheless, on May 25, a matter of weeks, the History Channel will begin a major new series, World War II with Tom Hanks, 20 episodes featuring the star of Saving Private Ryan re-expressing what must certainly be a consensus popular view of Hitler and Tojo as bad guys, Roosevelt and Churchill wearing white hats. In the view of intellectial elites, these are now-defunct assumptions that for whatever reason won't go away.

I noted yesterday that Vice President Vance cited two episodes of the World War II narrative, the liberation of France and the Nazi death camps, as a counterargument to Pope Leo's assertaion that God doesn't support those who make war, and they're in fact a powerful argument, which is why they're not yet defunct. I linked one "just war" response yesterday, a professor of Catholic theology reminding us that the Church condemned the conduct of total war in World War II such as obliteration bombing of cities.

The response of "just war" theorists would be that killing innocent civilians in cases like the firebombings of Hamburg, Dresden, and Tokyo, or the nuclear attacks on Hiroshima and Nagasaki, is intrinsically evil, and to try to justify those cases on the basis that they forced the Nazis and the Japanese militarists to surrender is, as Bp Conley put it in my link on Tuesday, a "consequentialist, utilitarian argument. . . But Catholics cannot accept such arguments."

But the popular World War II paradigm of Tom Hanks vs the bad guys prevails, and in fact one of the conditions for "just war" in CCC 2309 is "the use of arms must not produce evils and disorders graver than the evil to be eliminated". I asked Chrome AI mode, "Is the just war condition that the use of arms must not produce evils and disorders graver than the evil to be eliminated a utilitarian argument?" Sometimes AI is just plain on point. It answered,

Yes, this specific condition—known as the criterion of proportionality in Just War Theory—is fundamentally a utilitarian argument.

Why it is Utilitarian:

Consequence-Based: It judges the morality of an action entirely by its future outcomes and results.

Cost-Benefit Balance: It requires a direct calculation of the total goodness produced versus the total harm caused.

Aggregated Well-being: It weighs the collective suffering of a population against the political or moral evil of an enemy.

. . . Because of this rule, modern Just War Theory is considered a hybrid system that mixes absolute moral duties with utilitarian calculations.

So CCC 2309 itself -- i e, the Catholic Church -- enjoins us to mix absolute moral duties with utilitarian considerations. Toward the end of World War II, Japanese massacres of civilians in China and elsewhere continued unabated. The death camps in Europe were only revealed in the closing days of the war, and the Red Army's depredations on German civilians as it advanced would have continued as long as Germany didn't surrender. It is generally understood that the firebombing of Dresden in February 1945 was a major factor that showed the Nazis the futility of their position, as did the nuclear attacks on Hiroshima and Nagasaki for Japan.

In other words, they demonstrably shortened the war. CCC 2309 instructs us to weigh the utilitarian and consequentialist aspects of these attacks in determining how the war met "just war" criteria. Bp Conley is mistaken if he claims that Catholics can't think this way, but he seems to be influenced by Edward Feser or others who share Feser's views in condemning "consequentialism".

Prof Feser has far less excuse in condemning "consequentialism" in "just war" theory, because he's supposed to be teaching students to use precise language and clear reasoning in his philosophy classes -- but I learned a long time ago what happens to students who learn a little too well. Those in his classes, frankly, have my sympathy. He apparently teaches ethics, but I'm not sure if he'd pass an undergradute course anywhere but at Pasadena City College.

But let's take another episode from World War II to tease out another problem in "just war" theory. This post in r/Catholicsm at Reddit raises an intriguing issue:

Going from Augustine to Aquinas to the Thomistic school of Salamanca forward, it seems that no War in history could be said to live up to these requirements.

The closest thing I can think of are a few rare situations where nations surrendered according to Just War's requirements, ie Denmark surrendering to the Nazis when no chance of military victory was conceivable.

I went looking for more information, and I learned that Denmark surrendered to Germany within six hours of its 1940 invasion, which was made simply to give Germany access to Norway. The Danish foreign minister, Erik Scavenius, who became prime minister during the occupation, devised a collaboration policy, samarbejdspolitikken, which had the utilitarian function of minimizing military deaths, since it avoided futile heroics, and preserved quality of life for civilians, who in return for non-resistance received relatively generous treatment from the occupiers.

In fact, occasional British air attacks on Copenhagen seem to have caused more civilian casualties than any German actions. The queston is, of course, why "just war" theorists favor the Danish reponse to Hitler more than, say, that of the French, who finally embraced the same strategy of surrender and collaboration. After all, CCC 2309 says "there must be serious prospects of success"-- if there aren't, surrender and collaborate, right?

But the French executed Pierre Laval, Joseph Darnand, Fernand de Brinon, Pierre Pucheu, and Robert Brasillach for collaboration; Philippe Pétain was sentenced to death but had the sentence commuted to life in prison. 37 Norwegians were executed during the legal purge (landssvikoppgjøret) after World War II for collaborating with the German occupation, including Vidkun Quisling. But although a number of lower-level Danes were prosecuted, and some executed, for collaboration after the war, neither Erik Scavenius nor other high-level figures who devised and advocated the overall collaboration strategy was prosecuted, much less executed.

According to Wikipedia,

Debate continues over [Scavenius's] legacy, and he remains one of the most controversial figures in the history of Danish politics. For example, on the 60th anniversary of the 29 August dissolution of government, prime minister Anders Fogh Rasmussen chastised his predecessor for his stance, saying that it was naive and morally unacceptable. However, historians like Bo Lidegaard and Søren Mørch contend that it was only through Scavenius's policies that Denmark escaped the worst hardships of the war.

Thus, there are several problems with application of "just war" criteria in cases like Denmark, even if some people feel it correctly followed the principle of "serious prospects of success". In return for German leniency it simply allowed the Wehrmacht to pass straight through Denmark to invade its neighbor Norway, where conditions under occupation were much worse. More importantly, it solved the limited moral dilemma posed by CCC 2309 and other "just war" principles, but it simply ignored the overall problem of World War II, which was a world problem.

What we're beginning to see in trying to find wars that in any way can be considered "just" according to "just war" criteria is that the only remotely clear-cut cases involve highly specific circumstances that either exist in unique, remote environments, like the Falklands War, or circumstances that are actually just temporary and limited solutions to larger problems that aren't resolved, such as the 1991 Gulf War or Denmark's capitulation to Germany.

The nature of war is so complex and so thoroughly bound up with human nature -- again, the Old Testament gives ample illustration of this -- that trying to apply half a dozen or so general principles to determine whether a war is somehow "just", when even "just war" theorists despair of ever finding a clear example of such a thing, strikes me as a naive and feckless effort. I'm more and more inclined to believe it's a category error.

“Was God On The Side Of The Americans Who Liberated France From The Nazis?"

This is one of the questions Vice President Vance, a Catholic, posed to Pope Leo's assertion that God is "never on the side of those who once wielded the sword and today drop bombs." Vance continued, "Was God on the side of the Americans who liberated Holocaust camps?” In effect, he was asking Leo if there can ever be a "just war" under "just war doctrine", because this is actually a key question. By and large, "just war" theorists suggest not. The Jesuit America Magazine reaassured its readers in reporting this exchange:

But Vincent J. Miller, the Gudorf Chair in Catholic Theology and Culture at the University of Dayton in Ohio, said that the Catholic Church actually does not take an unqualified view of the warfare that took place in World War II.

“The Church condemned the conduct of total war in World War II such as obliteration bombing of cities,” he pointed out.

There you have it; World War II was not a just war. Take that, J D Vance! But Catholic "just war" theology, taken this way, is a bait and switch. Let's take Edward Pentin's review of a January interview given by Edward Feser on the question of whether the US removal of Venezuelan President Nicolas Maduro meets "just war" principles:

A military operation to remove President Nicolas Maduro of Venezuela could have been justified on just war principles, but the way in which the Trump administration has so far executed it actually violates the ancient criteria.

. . . Taken together, Feser believes the lack of clear just cause, inadequate planning, questionable motives, and constitutional concerns mean that, while such a war could be just in theory, this particular operation falls short of just war standards.

Pentin goes on to quote the entire interview, which begins:

Professor Feser, could the recent US operation to remove President Nicolas Maduro be justified in any way according to just war principles in your view?

The first thing to say is that we have to draw a distinction between the question “Could a U.S. operation of some kind to remove Maduro be justified on just war principles?” and the question “Is the particular way the Trump administration has actually gone about this justifiable by just war principles?” The answer to the first question is Yes, but the answer to the second question is No.

So, what are the specific defects of the operation that make it unjust?

[C]ertain conditions have to be met. For one thing, there must be a realistic hope of success, which includes a well thought out plan to ensure that the government that replaces the tyrant is actually a significant improvement, and that the country being liberated is not plunged into violent chaos.

. . . The question, then, is whether and how a transition to a significantly more just government is going to occur. And the Trump administration has been vague about that.

Let's return to the point I've been making about the CCC 2309: it places the responsibility for evaluating "just war" conditions on the civic authorities, not philosophy professsors. To begin with, war plans are necessarily confidential, and while it might be reassuring to review those plans, there's no requirement that the civic authorities disclose them. He gioes farther afield as well:

Another serious problem is that the rhetoric from some in the administration, and from some of its defenders, goes well beyond anything that could be justified even in principle by just war criteria. For example, there has for over a year now been talk about annexing Greenland, and the president has explicitly refused to rule out military action as a way of doing this. But military action against Greenland, or even just the threat of it as a negotiating tactic, is manifestly contrary to just war doctrine. It would be naked aggression, nothing more than gangsterism.

Wait a moment. We were talking specifically about the operation in Venezuela, but now he's brought Greenland into the question. We haven't invaded Greenland, there's no war there for us to inquire as to its justice, but he's somehow linked it to whether the Maduro operation was just.

Because the president and some of his allies so freely engage in this sort of irresponsible rhetoric, it is very hard to take seriously the suggestion that they are concerned to act justly where war is concerned.

In other words, a good part of the problem is that Trump is Trump. Let's just allow that reasonable people can differ over Trump, but then we run up against the problem of moral certainty. Those evaluating "just war" condiitons must be morally certain of their conclusions, which for Feser and other "just war" theorists leaves much less room for disagreement: it's right vs wrong.

This view was well represented in standard pre-Vatican II manuals of moral theology. For example, in their Moral Theology: A Complete Course, Fr. John McHugh and Fr. Charles Callan write that “the government may not declare war, unless it is morally certain that right is on its side . . . one should refrain from hostilities as long as one’s moral right is uncertain.” Fr. Austin Fagothey’s Right and Reason holds that “not only must the nation’s cause be just, but it must be known to be just . . . one must be sure of a just cause before fighting.”

. . . Exactly what degree of certainty is required, and why does the tradition require it? Both questions are best answered by way of stock examples. Suppose a hunter considers firing into some bushes. On standard natural law thinking, he may do so only if he is certain there is no other hunter behind them. If he considers it merely probable that there is no one behind them and fires anyway, he is guilty of wrongdoing, even if he doesn’t hit anyone. For his action was reckless. Or consider a jury deciding whether to sentence an accused murderer to be executed. They may not do so if they think it merely probable that he is guilty (as opposed to being certain “beyond a reasonable doubt” that he is guilty).

But both of his examples are absurd. A hunter never just "considers firing into some bushes". There are legal and ethical constraints that govern why he's in the field at all that go far beyond whether sonmeone might be behind some bushes; the question of whether someone probably is not behind the bushes is absurdly remote. This is simply an inapt example that clarifies nothing. The example of a murder jury is just as bad: juries deliberate based on highly circumscribed rules of evidence and instructions, and their verdict must be unanimous.

Wartime decisions by their nature aren't based on the level of evidence needed in murder trials, they're seldom unanimous, and in spite of the moral certainty juries must have, verdicts are reversed. We're in mushy territory here, and Feser knows this.

To forestall misunderstandings, note that the claim is not that governing authorities must have absolute or metaphysical certainty (of the kind we have when we know, for example, that 1 + 1 = 2). Nor does the tradition claim that we need to have certainty about every aspect of a war. We need to be morally certain only that a proposed war meets all just war criteria . . . one of the criteria of a just war is that “there must be serious prospects of success” (as the Catechism puts it). Hence, governing authorities don’t need to be certain of the success. However, they do need to be certain that there are serious prospects of success.

"Well, doggone, I thought we had serious prospects of success, I'd have bet my life on it. But I guess we didn't, huh? At least I don't need to go to confession over it!" Feser has said nothing useful here, and he concludes by citing Elizabeth Anscombe, whose position is absurd:

In her essay “War and Murder,” Elizabeth Anscombe adds another important consideration. Pacifism, she argues quite firmly, is not a morally serious position. . . . [But war] involves an unusually high number of occasions in which innocent lives might be put at risk, in which combatants will be tempted to put those lives at risk, and in which they might realistically get away with doing so. Consequently, though there can be such a thing as a just war, in practice, Anscombe judges, “wars have mostly been mere wickedness on both sides” and “the probability is that warfare is injustice.”

Put briefly, pacifism isn't a morally serious position, but no wars are just. So, why are we wasting our time debating just war theory? Rabbi Pesach Wolicki provides a possible answer in the YouTube discussion below, in which he expands on some remarks by Sam Harris on why contemporary leftism and Islamism agree on so many key issues:

Both Marxist political ideology and Islamist political ideology are structured around the rejection of what I call Biblical civilization that says human beings have inheent dignity, . . . that good and evil are real and objective, that power is accountable to a moral standard above itself. Marxism rejects that, because it's atheist. So there's no transcendent moral standard if you're a Marxist. . . . Islamism rejects it, because it insists that the only legitimate authority is Allah, and human beings have no standing to assess the value of a particular act or a particular idea.

They have no ability to make law or hold power accountable on human terms, so they end up in the same place. So when Mamdani as a Democratic Socialist of America and Islamist aligneed organizations like CAIR, when they find themselves on the same side, it's not just strategy, it's that they're both operating in frameworks that are structurally hostile to the same thing, which is the concept of human liberty and objective morality and Biblical Wesern civilization. . . . They don't need to agree on the theology, but they agree on the enemy.

What I've begun to notice is that there's a third strain that's effectively aligned with Marxism and Islamism, and that's the current "just war" apologists who are effectively setting up conditions where no war will meet their exceedingly rigorous criteria -- and indeed, as Feser does above, they're effectively acknowledging this. But the key war, or wars, that they're objecting to are the joint US-Israeli actions against Iran, which is the main exponent of radical Islamism.

Why is this? I think it goes to Rabbi Wolicki's idea of Biblical civilization, but of course, since he's a rabbi, the Bible he's referring to is the Old Testament. I've noted in the past that if any collection of ancient philosophy contradicts "just war" theory, it's the Old Testament, where in cases like the Cities of the Plain, the Siege of Jericho, the Amalekites, the Midianites, and the Canaanites, whole populations are slaughtered in gross violation of "just war" theory.

The reason for those violations, of course, is that those groups were messing with Israel or the Almighty Himself. But as I've also noted here, Rabbi Wolicki raises the eschatological problem of modern Israel: Israel has emerged as a modern nation-state in borders corresponding to Old Testament Israel, with the same Jewish people returning to it as prophesied in the Hebrew Scripture. And it's acting in its own defense in ways corresponding to the ways enjoined by the Almighty for the ancient state.

This is a conundrum that won't go away, on one hand. On the other, "just war" theorists are effectively arguing that, since as a practical matter, no war is just, which we saw Feser acknowledge just above, there's no possible way Israel can be justified in taking military action in its own interest, or indeed, the Almighty's interest, even though there's plenty of justification in the Old Testsment.

So as I've asked before, why do we need an Old Testament if we have natural law? One reason is that natural law proves no war is just, when the Old Testament suggests things aren't actually like that.