[NOTE: I originally drafted this post on July 3, but the FP staff was on holiday too so it didn't get posted in time for the Fourth. I've updated it and reposted, with appropriate changes of verb tense]

Independence Day is when Americans celebrate their two hundred year-plus experiment with self-government. After two centuries it's not really an experiment anymore, though it certainly feels like we are still making it up as we go along. On July 4th, my family read the Declaration of Independence outloud (an annual ritual) and talked about what we thought it really meant. And across the country, Americans grilled, drank, watched fireworks, and listened to John Philip Sousa, and probably spent a lot of time being grateful that they are not living somewhere else.

But what exactly are we celebrating these days? We are on a sour phase of our history, where hardly anyone seems happy about our condition at home or our position abroad. The economy remains dismal, where only the rich enjoy comfort and security, and our politics gets nastier and more dysfunctional with each passing day. Instead of working together to meet a growing array of challenges, a toxic combination of pundits, poseurs, and provocateurs is choking the life out of political system like so much kudzu. Our leaders continue to give speeches about our global responsibilities, but how many people now believe that America is leading the way to a safer, saner or more just world?  We don't bring peace to war-torn lands, we are not doing much to build more effective global institutions, and sometimes it feels like armed drones and special forces have become our primary export.

In such times, it is tempting to descend into world-weary fatalism, and merely chronicle the many ways that America's reality falls short of our Founders' hopes. But I am not going to succumb to that temptation-at least not today. For although the Founding Fathers were in many ways consummate realists--acutely aware of human frailties, mindful of the dangers facing a small, weak and new nation, and ruthless in pursuit of hemispheric dominance--they were also idealists who dreamt big.  On Independence Day, we can honor our past by indulging in some dreams of our own.

On this 4th of July, I dreamt of an America at peace, no longer squandering its wealth and power in unnecessary global crusades. I dreamt of an America that knows there are risks in the world, but that does not allow fear to dominate its foreign policy agenda or its domestic discourse. I dreamt of an America that has regained the world's respect, and where others trust our judgment and value our competence. I imagined an America where economic inequality is declining, not growing, and where people are judged, as Martin Luther King put it, by the content of their character and not by their race, religion, or sexual orientation. I thought about an America that is not afraid to talk to its adversaries, because it was confident that it wouldn't get bamboozled and knew that talking is often the best way to persuade others to change. I dreamt of an America that does not torture, and that has the integrity to prosecute anyone who does. I dream of an America that does not lead the world in the number of people in its prisons. Like Woodrow Wilson, I yearned for an America with the "self-restraint of a truly great nation, that knows its own strength and scorns to misuse it." I looked ahead to an America whose first concern is the well-being of all its citizens here at home, instead of trying to tell the rest of the world how to live. And I dreamt of an America where political debate is unfettered but civil, and where those who seek to win arguments by smearing their opponents or distorting their arguments are regarded by their fellow citizens with appropriate contempt.

Do I expect to see this America emerge?  Sadly, no (I am a realist, after all). But if we are truly the political descendants of the brave men and women of 1776, then we have to believe in the power of imagination and the ability of human beings to chart a new course. And in that knowledge lies hope.

I hope you all had a pleasant and inspiring Independence Day, and that in the next year we move a bit closer to the ideals we celebrated on Monday.

Yesterday I received an email from the Council on Foreign Relations, announcing the release of a Special Report on "Justice Beyond the Hague: Supporting the Prosecution of International Crimes in National Courts."   The author is David A. Kaye of UCLA Law School, and the report is a well-crafted document arguing that the United States, other like-minded countries, and the philanthropic community ought to do more to national courts in other countries, so that they can investigate and prosecute war crimes and other atrocities. To enhance human rights, in short, we ought to help countries like the Democratic Republic of the Congo, or a post-Qadhafi Libya hold former officials accountable for war crimes or other abuses. Money quote:

The United States shuld put national-level justice at the center of its war crimes policy.  Internally, the United States should reorganize how it helps other governments develop the capacity to investigate and prosecute such crimes. . . . Externally, the United States should take a leading role in fixing and coordinating a currently dysfunctional international approach to national justice in the wake of atrocities."

Sounds laudable, except the report is almost completely silent on whether the United States also needs to do a much better job of investigating and prosecuting U.S. officials who might be guilty of war crimes themselves. After all, a more-than-plausible case can be made that the Bush administration violated international law when it invaded Iraq in 2003, that top officials engaged in war crimes when they ordered the torture of prisoners, and that U.S. reliance on "targeted killings" in Afghanistan, Iraq, and Pakistan is also a violation of the laws of war. I'm not a lawyer and I don't know if the officials responsible are guilty or not, but it seems clear that our government is as reluctant to tackle that issue as the ones that the report seeks to help

The CFR report acknowledges this problem only once, commenting on page 22 that "the United States . . . must deal with widely-held perceptions, especially abroad, that it failed to hold its own officials accountable for abuses against suspected terrorism detainees." Fine, we need to "deal with" these perceptions, but that suggests a bit of spin control, rather than asking whether these "perceptions" are valid and whether we ought to be doing something concrete in response. You know, like issuing indictments or at least conducting a serious investigation.

Needless to say, this is the sort of pious moralizing that drives lots of people in other countries crazy. The issue isn't just our reluctance to put former top officials in the dock, it is also our relentless eagerness to preach to others about how they ought to behave, even when we are manifestly unwilling to live up to the same standards ourselves.  

By contrast, if the CFR issued a report saying that the US ought to do more to strengthen national courts both overseas and here at home -- even if this meant that a few CFR members might find themselves facing an indictment -- that might raise some eyebrows and force some rethinking.  But don't hold your breath.

When my clock radio went off this AM, the first story I heard was about a NATO air attack on Libyan leader Muammar al-Qaddafi's compound near Tripoli. Although NATO officials have denied that this was an attempt to kill Qaddafi, it is hard to believe that the officials responsible weren't hoping for a lucky shot. U.S. Senator Lindsay Graham told CNN that it was time to "to cut the head of the snake off, go to Tripoli, start bombing Qaddafi's inner circle, their compounds, their military headquarters." Similarly, Senator Joe Lieberman called for "going directly after Qaddafi," saying that "I can't think of anything that would protect the civilian population of Libya more than [his] removal."

In a situation like this, it is obviously tempting to think you can solve the problem by removing the bad guy at the top. Instead of a prolonged civil war that kills lots of combatants and civilians and inflicts vast property damage, why not just get rid of the individual you think is causing all the trouble, and maybe a few of his closest associates? To take the most obvious case: with the benefit of hindsight, wouldn't it have been far better to take out Adolf Hitler sometime in the 1930s? By a similar logic, wouldn't a surgical strike on Qaddafi and his inner circle be preferable to a protracted civil war?

But before you conclude that targeted assassination is the way to go, I suggest you read Ward Thomas' 2000 International Security article "Norms and Security: The Case of International Assassionation." Thomas traces the evolution of attitudes, norms, and practices regarding international assassination, and shows how they have changed significantly over time. He argues that assassination was a fairly common foreign policy tool a few centuries ago, but a combination of shifting material interests and evolving normative principles led to the emergence of a fairly strong norm against the killing of foreign leaders, even during wartime. This shift occurred in part because great powers preferred to confine conflict to the clash of armies on the battlefield (where they had the advantage over weaker states), and partly because it helped enshrine the idea that war was conducted by states and not by individuals. Thus, the norm helped reinforce the political legitimacy of the state itself, and it eventually grew so powerful that even deeply hostile states did not make serious efforts to kill each other's leaders.

Thomas also argues that the norm appears to be breaking down, for three separate reasons. First, as warfare became increasingly destructive, states began to look for cheaper alternatives. Second, terrorist groups routinely employ assassination against the states they oppose, and states have responded with targeted killings against suspected terrorist leaders. Third, and perhaps most interestingly, in the post-Nuremberg environment, national leaders are increasingly seen as individually responsible and morally accountable for acts undertaken at their behest. The creation of an International Criminal Court is another sign of a shifting moral and legal context in which raison d'etat no longer protects national leaders from accountability (if they lose, of course). And if individual leaders are seen as morally responsible, then it is easier to slip into viewing them as legitimate targets in war.

Of course, the United States (and some other countries) have been on this slippery slope for awhile, given our reliance on targeted killings in Afghanistan, Pakistan, and Yemen. The practice is troubling on at least three grounds. First, due to the imperfect nature of intelligence and the inevitable "fog of war," targeted killings inevitably murder innocents along with the supposedly guilty. Second, and following from the first point, killing innocent bystanders may create more adversaries than it eliminate, thereby undermining the strategic purpose of the program itself.

Third, and perhaps most important of all, going after foreign leaders-no matter how despicable-helps legitimate a tactic that will eventually be visited back upon us. If the world's most powerful countries see fit to kill any foreign leader that they don't like, what's to stop those same (presumably evil) leaders from threatening to pay us back in kind? Targeted assassinations of foreign despots may seem like a cheap and efficient way of solving today's problem, but we won't enjoy living in a world where foreign adversaries think attacking U.S. leaders (including the president and his inner circle) is a perfectly legitimate way of doing business.  And notice that making targeted killings more legitimate tends to level the international playing field: you don't have to be a powerful or wealthy state to organize a few hit squads and cause lots of trouble for your enemies.

So even if this attempt at "decapitation" were to succeed in the short-term, the longer-term consequences may not be quite so salutary.  

Was the decision to intervene in Libya justified by the threat of imminent massacres, and possibly even a genocide?  And did President Obama have the authority to intervene? 

If you're still wondering about either of those questions, I have two suggestions for further reading.  The first is an op-ed by Alan Kuperman, which casts further doubt on the likelihood that Qadhafi's forces were about to engage in the indiscriminate slaughter of thousands of innocent bystanders in Benghazi.  Kuperman points out that Qadhafi loyalists did not conduct massacres in any of the cities that they have recaptured, and that the Libyan tyrant's threats to show "no mercy" applied only to rebels.  He also notes that the reported casualties are overwhelmingly male, which suggests that it is primarily combatants (i.e., rebels) who are being killed.

Note that Kuperman is no apologist for Qadhafi.  He does not deny that Qadhafi is a thuggish ruler, that his loyalists were killing civilians, or that some of their actions constitute war crimes.  The question, however, is whether there was an imminent risk of a bloodbath that "would stain the conscience of the world," as Obama put it. 

Notice also that although Obama did not use the word genocide himself, both current and previous members of his administration did raise the spectre of a genocide in order to make the case for U.S. action.   Anne-Marie Slaughter, the former head of Policy Planning in the State Department, tweeted ""The international community cannot stand by and watch the massacre of Libyan protesters. In Rwanda we watched. In Kosovo we acted."   Similarly, Secretary of State Hillary Clinton said ""We learned a lot in the 1990s.  We saw what happened in Rwanda."  The clear implication was that failure to act in Libya would produce hundreds of thousands of deliberate murders (which is what occurred in Rwanda in 1994).

Given that Qadhafi is a heinous ruler of dubious legitimacy, why does this matter?  It matters because the case for intervention depends heavily on the magnitude of the humanitarian calamity that we sought to forestall.  If the danger really was that grave, then the case for intervention goes up.  But if the likely consequences of a Qadhafi victory were regrettable but not that large, then the case for intervention diminishes.  And the case for action is even weaker if there is a genuine risk that intervention might prolong the fighting, produce a stalemate or a failed state, or provoke the government into acts of brutality that it might not have conducted otherwise.  

Second: did Obama exceed his powers when he ordered the use of force?   The Justice Department's Office of Legal Counsel has issued an opinion on this issue (perhaps coincidentally, on April 1^st), and--surprise, surprise--they've concluded that it was perfectly ok.  The OLC makes three arguments: 1) it's not really a war, and the President has broad powers short of war; 2) we're enforcing a Security Council resolution, which gives the President even more authority, in part because he has to uphold the credibility of the Security Council; and 3) the War Powers Resolution permits the President to use force for sixty days without advance approval. 

Michael Glennon of the Fletcher School examines the OLC's arguments in the Harvard National Security Journal and finds them wanting on legal and constitutional grounds.  More tellingly, he also shows that these justifications are at odds with Obama's own statements before he became President.   In 2007, for example, Obama told the Boston Globe that "the president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involves stopping an actual or imminent threat to the nation."  (Obama used to teach constitutional law, so he's not exactly a tyro on these issues).  And back when she was a mere Senator, Secretary of State Hillary Clinton said that "I do not believe that the President can take military action--including any kind of strategic bombing--against Iran without congressional authorization."  More strikingly still, State Department Legal Advisor Harold Koh has repeatedly argued--as a scholar--against precisely this sort of expansive interpretation of presidential power.  But not this time.

At this point in the history of the republic, it should come as no surprise that people working in the Executive Branch tend to think the President has the power to use military force just about any time the he and his advisors deem it necessary or advisable.  It is equally unsurprising that politicians and pundits tend to be hypocritical about this issuet: they think the President ought to have broad powers when they agree with the particular use to which it is being put, and they think those powers ought to be limited when they think the President is doing something foolish or unnecessary.  

Reasonable people can disagree about just how much authority the Executive Branch ought to have, just as they can also disagree about the course of action the United States and others should have followed with regard to the situation in Libya.  But let's be clear about the long-term effects of the de facto authority we are granting every President.  It's a messy world out there, and there will always be some trouble somewhere that people will want Uncle Sam to fix.  If you give a single individual the authority to decide when to order the world's mightiest military into battle, without having to consult anyone except his own appointed advisors, then you shouldn't be surprised when that mighty military gets used over and over and over.

When my wife and I are asked what we do, we sometime joke that my job is to "think globally," while her job is to "act locally." Translation: in addition to working as a consultant to a number of foundations and think tanks, my wife (Rebecca Stone) is also a member of Brookline's "Town Meeting." A Town Meeting is a venerable New England institution; in our case, it is a 250-person body of elected representatives that debates and approves major town initiatives.  

But sometimes our concerns overlap. A month or so ago, when the Park 51 controversy was stoking the growing fires of xenophobia and nativist prejudice, my response was to write a few blog posts about the issue. Big deal. But she decided to do something more concrete. Specifically, she drafted and sponsored a "warrant article" to be considered and voted upon at the next Town Meeting. Her proposal would amend the town's by-laws and give permanent legal residents ("green card holders") the right to vote in local (i.e., town-wide) elections.

You can read all about it here.

Notice that this proposal is not about giving the right to vote to undocumented aliens, tourists, or temporary visa holders. Nor would it permit green card holders to vote in state-wide or national elections or to run for office. Rather, it is about a single town giving people who are permanent legal residents (the vast majority of whom are taxpayers, including property taxes), the opportunity to participate in local elections only. Most permanent legal residents eventually become naturalized citizens after the requisite waiting period, and permitting them to vote in local elections is also a way to encourage greater civic participation. 

Equally important, it is a way to signal that America remains a country that welcomes people from overseas. It reminds us that we are a country whose very existence, past achievements, and future prospects rest on attracting and integrating future citizens from all over the world. Money quotation:

"A number of legal immigrants pay property taxes and send their children to public schools in Brookline, Stone said, and she believes allowing them to vote in local elections is a way to honor their commitment to the community.

"It may sound schmaltzy, but that's why I did it,'' said Stone, who is also an elected Town Meeting member. "I just got tired of complaining about what everybody else was saying. I figured it's a small thing to do. It's a small gesture. But it's a step in the right direction.''

There are also ample historical precedents for this arrangement. The Constitution is silent on this issue, but the Federal government has long given states and local communities the right to determine suffrage over state and local elections, and over forty different states permitted various forms of local non-citizen voting between 1776 and 1926. Both New York and Chicago have allowed permanent legal residents to vote in local elections as well, as have many other communities.

Massachusetts is a "home rule" state, which means that if the warrant article passes, then the town must petition the State legislature for final approval. Previous petitions from other communities have not been acted upon (if you know anything about the legislature here, that won't surprise you), but a number of other communities are considering similar measures and we may be seeing a turn of the tide. 

In any case, the next time you hear about Newt Gingrich or some other fear-mongering blowhard trying to makes us more suspicious of anyone born elsewhere, be aware that there are other Americans working, in their own communities, to counter such poisonous attitudes. And needless to say, I couldn't be prouder.

It's been a long time since I've offered a counter-factual for you to ponder, but one popped into my head as I was reading the latest set of all-too-predictable smears being directed at South African Judge Richard Goldstone, who directed the U.N. report documenting Israeli war crimes and possible crimes against humanity during the 2008-2009 Gaza offensive.

If you're coming in late, the basic story is that Israeli newspapers and government officials have been spreading the story that Goldstone (who is Jewish) condemned a number of black activists to death when he was a judge in apartheid-era South Africa. Never mind that 1) it was his job as a judge to uphold the (admittedly harsh) laws of his country, 2) he is widely acknowledged as having played a positive role in the transition to majority rule, 3) Israel was one of white South Africa's staunchest allies, which makes these pious denunciations of apartheid absurdly hypocritical, and 4) none of this tells you a darn thing about either the contents or the merits of the report on Gaza that bears his name. For able rebuttals of this smear campaign, see here and here.

So here's my counterfactual. Suppose Goldstone's U.N. report had exonerated Israel's conduct during the Gaza War, and placed most if not all of the blame on Hamas. Suppose further that a prominent Palestinian group had then delved into Goldstone's past and tried to discredit the report by disclosing the same information about him. Do you think Israeli officials and/or media pundits like Jonathan Chait, Jeffrey Goldberg, and Alan Dershowitz would have rushed to pile on Goldstone, as they have leapt to do over the past few days? Isn't it more likely that they would have rallied to his defense, and denounced those unscrupulous Palestinians for trying to confuse the issue? Do these guys really think they are fooling anyone?

Am I the only person who sees a parallel between the furor over the Scottish decision to release convicted Libyan intelligence officer Abdel Basset Ali Mohmed al-Megrahi, and the heated debate over whether to investigate possible criminal misconduct during the Bush administration "torture regime?"

With respect to the former, many people are upset by the decision to release al-Megrahi -- who has terminal prostate cancer and only a few months to live -- because they do not think an act of mercy was warranted in his case. Fair enough; reasonable people can legitimately disagree about whether the dying man convicted of the Lockerbie bombing deserves any form of clemency. But the real anger stems from the suspicion that al-Megrahi's release was part of some larger deal, and that British officials traded the release for commercial or political advantages. In other words, opponents of the decision to release him are incensed because they believe government officials let broader political or business considerations interfere with an important issue of criminal justice.

Yet those who oppose an open-ended investigation into what the Bush administration did -- which might eventually lead to the prosecution of top officials -- are doing the same thing for which British officials are being criticized: they are saying that politics should outweigh the requirements of law and justice. In essence, they are saying that broader political considerations should trump the normal operations of the criminal justice system. Yet I suspect most of the people making this argument would be outraged if it turned out that the British government decided to release al Megrahi in part to cultivate Libyan business or secure other political advantages.  

For a country that claims to revere the "rule of law," this really isn't a hard issue conceptually. Attorney General Holder's task is to determine whether laws may have been broken, and whether an investigation of the alleged wrongdoing is warranted. Once that investigation has been conducted, he then has decide if he has a strong enough case to warrant prosecution. If he thinks he does, the case goes forward, and defendants get their day in court. Politics isn't supposed to have anything to do with this process (though a sensible prosecutor would probably be especially reluctant to bring a weak case against prominent senior officials). Finally, if any defendants are found guilty, the president could then step in and issue a pardon, if he felt that doing so was in the best interests of the nation.

Note that it is still possible to criticize and debate every aspect of this process, but not by invoking partisanship, political expediency, or the need to "look forward rather than backward." People can disagree about whether there is enough evidence of wrongdoing to warrant further investigation (though I think the recent revelations make it hard to make the case that there is simply no basis for a further investigation). If AG Holder decides to indict anyone, or if he declines to do so, people will undoubtedly disagree about what he should have done so based on the available evidence. And if the cases go to trial we can argue about them too. If the defendants are acquitted, people will say the case should never have been brought; if convicted, some will claim they were railroaded. If people are convicted and the president pardons them, no doubt there would be heated discussions about whether this was appropriate or not.

But the key point is that if you genuinely believe in the rule of law, you can't invoke political expediency as a guide to whether possible crimes should be investigated and prosecuted. And the fact that the Attorney-General has decided to go forward should be seen as very positive sign, because it shows that he is willing to fulfill his constitutional responsibilities even if it is politically inconvenient for the president who appointed him. I have no doubt that the president would prefer to "look forward," because an investigation and/or prosecution will drive both the CIA and the right-wing media types crazy and because he's got enough alligators to wrestle with already. But he also promised us that he would end the politicization of the Department of Justice that his predecessor practiced, and Holder's decision, however inconvenient for Obama, is a reassuring sign that there is still life in the U.S. Constitution.

Am I being -- shall we say, unrealistic -- to stress the rule of law as opposed to the naked exercise of political power? Hardly. Realists have a rather dim view of human nature, which is why we like legitimate, well-ordered governments in which laws and checks and balances exist to keep human frailties in check. The Founding Fathers had a lot of realist instincts, so they constructed a variety of essentially liberal institutions to try to address and contain our worst instincts. Domestic politics in a well-ordered society is a lot nicer than life in the international system, which conspicuously lacks strong institutions and where the rule of law is weak. And that's why we ought to defend the rule of law in this case (and others), and try hard to keep politics out of the discussion.

Leon Neal/AFP/Getty Images