The 9/11 trials: Holder’s last stand

BY ANDREW KALLOCH

Last year, Attorney General Eric H. Holder declared that America was a “nation of cowards” in the area of race relations. Predictably, pundits and politicians hollered Holder down; members on each side of the political aisle spouting sanctimonious verbiage about “how far we’ve come,” believing that the presence of a black president in the White House meant that the struggle for civil rights was at or near an end.

Less than ten months after the “nation of cowards” flap, Holder triumphantly announced his decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in Federal Court in Manhattan, steps from the former World Trade Center.

Little did Holder know how prescient his February words about America’s cowardice would become, as slowly, but steadily, members from all parts of the political spectrum conspired to keep KSM and other 9/11 plotters out of civilian court.

Some of the arguments in favor of military commissions stemmed from true intellectual disagreement—the belief that terrorists caught on foreign soil were not entitled to the rights provided to criminal defendants in civilian courts. While I strongly disagree with that position, there is nothing inherently cowardly about the belief that the Constitution applies to certain individuals and not others.

However, much of the vitriol hurled Holder’s way was fear-mongering about the nation’s ability to adequately defend itself, the courts’ capacity to protect classified information, and, most spinelessly of all, concern about the fact that terrorists would have a platform for their own cowardly ideology.

Indeed, it did not take long for politicians to whine about the alleged risks the trial brought to New York City. Rep. Peter King, a Long Island Republican, said that hosting the trial in Lower Manhattan would move New York City “to the top of Al Qaeda’s target list.” King must be the only New Yorker who doesn’t already know that New York is Al-Qaeda’s #1 target.

Holding KSM’s trial in Lower Manhattan would not make the city a more attractive target for terrorists. The New York City Police Department has the most capable intelligence and counterterrorism units of any police department in the world. Moreover, were the trial to be held in New York, KSM and his co-conspirators would likely be housed in Unit 10 South of the Special Housing Unit in the Metropolitan Correctional Center in Lower Manhattan, a maximum-security unit specifically designed to house terrorism suspects and other offenders who pose a proven danger to other inmates or prison guards.

Others who criticized Holder’s decision expressed concern about the nation’s ability to control classified information. In the Wall Street Journal, former Justice Department lawyer John Yoo wrote that trying KSM in civilian court would provide an “intelligence bonanza” for Al-Qaeda. While we shouldn’t be surprised by now of Yoo’s unparalleled ability to look the other way when the law repudiates his personal beliefs, it is worth noting that military commissions use the same law to protect sensitive national security evidence as the federal courts, the Classified Information Procedures Act (“CIPA”).

CIPA was successfully implemented during Zacharias Moussaui’s trial in 2006, a trial that then-Senate Majority Leader Bill Frist (R-Tenn.) hailed as “a small but important piece of justice” that provided “proof that our society is grounded in the liberating power of justice and the rule of law, which are our most valuable weapons in the war on terror.” The Moussaoui court even took the extraordinary step of creating a special website where the public could view nearly 1200 trial documents.

Independent of the concern about classified information, abandoning the civilian courts would prevent the U.S. from bringing some of its most wanted terrorists to justice. As the New York Times reported this week, a commissions-only policy would prevent some nations from extraditing terrorism suspects, including two men suspected of plotting the 1998 East African embassy bombings and a Somali citizen accused of recruiting American citizens to fight for al-Shabaab.

As pitiful and uninformed as King and Yoo are, Rep. Pete Hoekstra’s (R-Mich) pathetic fear mongering is unparalleled. Hoekstra told CBS’ Face the Nation that terrorists should not be tried in civilian court because it would “allow them to use it as a platform to push their ideology.”

If Al-Qaeda wants to pit their murderous ideology against the values of liberty, equality, democracy, and the rule of law, I say bring it on. We may not win over “Jihad Jane,” but we will show billions of peace-loving people that our nation’s strength is not in its arms, but in its fundamental principles.

If President Obama intervenes to send KSM’s trial back to a military commission at Guantanamo Bay, Eric Holder has a clear choice: join the cadre of cowardly politicians and professors who view the rule of law and the values of our nation as insufficient bulwarks against a murderous, radical ideology, or resign his office in protest. The Attorney General was right to call out America on its cowardly approach to race relations. Now, it is time for Holder’s Last Stand.

Andrew L. Kalloch ’09 was Editor-in-Chief of the Harvard Law Record from 2008 to 2009. He now lives in New York.

U.S. funds immigration cops, but not courts

BY ANDREA SAENZ

As an immigration attorney, I represent an asylum client who was arrested in the Michael Bianco factory raid in New Bedford, MA in March 2007 – so long ago that at the time of the raid, I was a mere 2L in the Harvard Immigration and Refugee Clinic, proving support to the lawyers helping the newly arrested clients. After various procedural steps, the client was finally given an hearing date for November 2009. As usual, we worked for hours upon hours assembling her brief, country conditions documentation, expert affidavits, and more.
Two weeks before the hearing, the judge took a medical leave and canceled several weeks of his schedule. We appeared in court the next month to get a new hearing date for the client. Her new date: May 2011, four years after her first arrest. That was the first free slot.

On top of that, because the client applied for asylum more than a year after entering the U.S., she is ineligible for a work permit while her case drags on. She must stay in the U.S without the right to work until her case is called — unless she gives up hope and goes back to the country she fears.

And in another recent case, I worried for the entire thirteen months we waited between filing the client’s application for permanent residence and the court hearing that one of the client’s key witnesses and claims to relief, her elderly and ill mother, would die and devastate not only her daughter but her daughter’s chance at a green card.

These kind of delays are pervasive in every one of the U.S.’s 57 immigration courts, and are getting worse by the day, thanks to two factors: the underfunding of the immigration courts, and the explosive funding of law enforcement programs that refer foreign-born people from encounters with the criminal justice system into the immigration court system. While the recent media attention on the immigration system has focused on the possibility of political reform, and importantly, on the shocking conditions and challenges of the immigration detention system, the actual functioning of the immigration courts themselves has received little ink.

The problem is simple: The immigration courts were already a ten-pound bag straining to hold a twenty-pound caseload. With the incredible growth of the Criminal Alien Program, 287(g) local law enforcement partnerships, and Secure Communities jail screenings, without any parallel growth in funding for the courts or prosecutorial discretion, the law enforcement system has dropped a fifty-pound weight right on top of the sack, and it is more than the system can bear if it is to produce real due process. And given what is at stake – the unity of parents and children, protection from persecution, and more – we must produce due process.

Consider the numbers: In fiscal year 2008, the Department of Homeland Security initiated removal proceedings against 291,217 people, who must all be tried by the Department of Justice’s Executive Office for Immigration Review (EOIR), operating with 57 courts and 231 judges. This is a 36% increase from just two years ago. Each judge now completes more than 1200 cases per year. Compare that to 729 cases a year for a Veterans Law Judge and 544 cases a year for a Social Security administrative law judge.

And it is likely to get worse, as Congress continues to pump up funding for Immigration and Customs Enforcement programs. DHS has already announced that they will expand Secure Communities and hope to eventually check the immigration status of virtually every person booked into any local jail in America through their fingerprints. Every one of the people referred from these checks, which include both undocumented people arrested but never charged with a crime as well as long-time permanent residents with criminal convictions as minor as a single simple drug possession charge, will be funneled into an immigration court system whose  resources are stagnant.

But don’t take my word for it. The American Bar Association Commission on Immigration has just released a nearly-500-page report, “Reforming the Immigration System,” analyzing in great detail the holes in the court system. The ABA strongly recommends major changes in judge hiring and training, access to counsel, judicial review, reduced use of detention and videoconferencing, and increased discretion by DHS attorneys. Last June, the Appleseed Center for Justice released a report, “Assembly Line Injustice,” making many of the same points and emphasizing the need for a more professional and consistent court system that provides some kind of counsel to poor clients who are eligible for relief.

Beyond delays, judges are under enormous pressure to finish cases that do come before them on tight “case completion” deadlines, and so to rush complex cases through the system. Individual hearings, even difficult asylum cases, are regularly double and triple-booked into three-hour hearing slots, with the parties knowing that asking for a continuance to finish means waiting another year or more.

In a case I had in 2008 involving a victim of serious domestic violence who was put on an electronic ankle bracelet despite having no criminal record, I had to beg and plead for an extra month to prepare her complicated asylum claim. The judge, sympathetic to my pleas, still had to call the regional assistant chief immigration judge just to get permission to deviate from his case completion deadlines, because the clients with ankle bracelets were being heavily expedited, regardless of the merits of their cases.

Immigration judges experience burnout, high stresses, and “compassion fatigue,”  causing one crying asylum seeker to sound just like another. In their offices, they are given little staff support, often having to share one law clerk among four or five judges. (New job opportunities for unemployed law grads, anyone?) The understaffing at EOIR is not news: former Attorney General Alberto Gonzales ’82 seemed concerned about the issue, recommending DOJ hire 40 new judges. DOJ isn’t even close to that goal, barely keeping up with attrition.

The lack of prosecutorial discretion is another serious problem the ABA points out, as unlike the criminal courts, this is a system where the “cops” (ICE or Border Patrol officers) file the charges and the “prosecutors” (DHS trial attorneys) rarely, if ever terminate cases for purely discretionary reasons, even if the respondents are children, the elderly, or the mentally ill. This leads to another problem: none of these groups, even if they are indigent asylum seekers, are entitled to free counsel. Much has been written on this issue: the lack of access to counsel in addition to documented disparities in immigration judge asylum grant rates has produced what some scholars call “refugee roulette” – an unpredictable system that is not in line with our desires to meet international human rights obligations.

As a result, more and more cases are appealed through the Board of Immigration Appeals, which does not, for various reasons, always review immigration judge decisions very robustly, and land in the laps of federal circuit court judges, who are not happy about their exploding immigration docket. Judge Richard Posner ’62, who has been the sharpest and loudest critic, said as long ago as 2005 that the adjudications of cases by the immigration courts and the BIA had “fallen below the minimum standards of justice.” The immigration judges themselves are not burying their heads in the sand: Dana Leigh Marks, president of the National Association of Immigration Judges, has agreed that for many clients, they are trying “the equivalent of death penalty cases…in a traffic court setting.”

We cannot fund cops but not courts. If local law enforcement partnerships with immigration authorities are here to stay, and it looks like they may be, we must also re-discover prosecutorial discretion and build an immigration court system that can keep pace with our desires to process more and more immigrants through it – a system that is at once bigger, fairer, and more flexible.

And yet, despite the cracks in the walls of the immigration court system, I’ve decided to join up. When my fellowship ends this year, I’m taking an attorney advisor (law clerk) position with the New York Immigration Court.

I am doing so because the system will chug on whether or not people work for it that have defended immigrants or read ABA commission reports. No one is going to take a political wrecking ball to the immigration court system and tear it all down; the ABA’s most radical suggestions are converting it to an Article I court and hiring a lot more judges and clerks. Having been both a public school teacher and a nonprofit attorney, I know good people can do good work even in a stressed organization. I’ve seen that from some of the judges and even DHS attorneys I’ve encountered in the last two years. So I will try to do good work.

But it’s slow going.

Andrea Saenz ’08 is an Equal Justice Works Fellow at Boston’s Political Asylum /Immigration Representation (PAIR) Project. She was Editor-in-Chief of the Harvard Law Record from 2007-08.

New Harvard Law Review president: no threats, only opportunities online

BY RECORD

Following in the footsteps of President Barack Obama ’91 and many before him, Zachary Schauf ’11 was elected President of the Harvard Law Review on January 30. The Harvard Law Record made its way to Gannett House to discuss all things law review, past and future, with the new editor.

1) You went to college at Stanford, earned a masters degree in England, and worked as a writer and editor in D.C. Now you’ve come to Cambridge. What brought you to Harvard Law School?

I’ve been all over the place, it’s true. To make a long story short, I decided to go to law school because I wanted a career that would be both intellectually challenging and focused on solving concrete problems, and the law seemed like the best fit. As for why HLS, I came because I don’t think there’s a better place to get a legal education. Although people debate the merits of big schools and small schools, I love HLS’s size. The faculty has leading experts in just about every field you can think of, and the students here have done so many impressive things.

2) Rumor has it that you were voted your Section’s ‘Most Likely to be Law Review President.’ That Delphic pronouncement aside, what ultimately encouraged you to run for Review President?

First off, I should say that I was very surprised by that humbling vote of confidence from Section 7, though I was fairly sure that it would jinx me during the write-on competition. In the end, I decided to run because I had such a fantastic experience during my first semester on the Review. We have a very special community, and we have the chance work on the cutting edge of legal scholarship. After getting to know the organization, the choice to get more deeply involved was an easy one.

3) What are your goals as Review President? What lessons did you learn from your predecessor, Joanna Huey ’10?

We’re about to enter our 124th volume, and our biggest goal is to uphold the Review‘s commitment to publishing high-quality, well-edited scholarship. Beyond that, we set our priorities democratically during our transition process, and my role is principally to implement the goals we’ve identified as a class. This year, one of our main goals is to continue to build our online Forum.

Joanna has been a fantastic leader, and incredibly helpful as I’ve been learning the ropes. Joanna — along with the other members of the outgoing leadership team, Colleen Roh ’10 and Chris Bates ’10 — have made the Review a wonderfully welcoming and inclusive community, and I hope that Luke McCloud ’11, Christina Hoffman ’11, and I can build on their success.

4) What have you enjoyed most about your time on the Review?

The Review is a close-knit and supportive group, and it helped ease the transition from 1L year, when almost all your classes are with the same 80 people, to 2L year, when the school becomes a much bigger place. I hadn’t anticipated what a fun place the Review would be. Sure, we do our share of work, but we also have monthly issue parties, heated Wii tournaments, and lots of long conversations over bagels and coffee — sometimes about the law, sometimes about the latest episode of Mad Men.

5) In light of websites like SSRN, academic  blogs touting new and interesting research, and faculty work-shopping trends, much has been said in recent years about the continued relevance of law reviews. What, if anything, can the Review do to stay relevant in the legal community?

I’m confident that the Review will remain an important institution in the legal community for a long time. We sort through thousands of submissions each year to pick 15 or so of the strongest articles, and our track record shows that many of these articles will end up changing the way people think about the law. We also put enormous energy and care into our editing process; I think that our authors would agree that this process makes already strong articles even stronger. And our generalist focus can promote conversations among different specialties that might not happen otherwise. In light of these roles, I think the Review and the trends you mention are complementary rather than conflicting. Of course, we recognize that changes in technology create new challenges and new opportunities. That’s one reason that our online Forum will be a focus over the coming year.

6) What does the Forum entail? Are digital journals, like the new Harvard National Security Journal, the future?

The Forum is principally a way to continue the conversations that begin in the printed journal. We don’t envision it as standing alone. Its focus is on short commentaries that build on the articles we publish in the printed journal, and our hope is to solicit several responses to one article in each issue, and for the responses to come out as close as possible to the article. Because we see the Forum as tightly connected to our regular articles, our commitment to the printed journal remains as strong as ever. Our Forum Chair, Andrew Moshirnia ’10, is working hard to bring these ideas to fruition.

Of course, we’re excited about the growth of student-edited journals, like the Harvard National Security Journal, and it’s great that the digital format lowers the startup costs. They enrich legal scholarship, and they’re great for the HLS community. I think there’s plenty of room for both models to thrive.

7) Last year Joanna noted that the best part of the Review, resume aside, was the Community. What else appeals to you about the organization?

The work we get to do here is really fantastic. On our articles, we get to work with authors who are at the top of their fields. And on our student writing, we’ve got a fantastic group of talented editors with interests that span a huge range of topics. It’s a lot of fun to work with each other to help make our writing better.

8) What should interested 1Ls do to find out more about the Review?

We’ve held a few info sessions so far, and after Spring Break we’ll be holding tip sessions for our write-on competition, which takes place the week after spring exams. If anyone has questions in the meantime, I hope they’ll email me or our Outreach Editor, Beth Newton ’11.

Green light for an internet red light district?

BY MATTHIAS KETTEMANN

xxx

It is not as if there weren’t enough pornography on the web. Exact figures are difficult to come by, but estimates of the number of websites dedicated to pornographic material range from 1 to 25 percent. And soon there will be more. In fact, a whole Top Level Domain or TLD (the letters after the last dot in an address, such as .com or .biz) will soon be dedicated to “adult entertainment”: the new TLD dot triple x, or “.xxx”.

In a decision published on February 19, a top-notch three judge panel ruled in favor of an association of adult entertainment companies, represented by ICM Registry, and declared that the private corporation responsible for assigning new Top-Level Domains, the Internet Corporation for Assigned Names and Numbers, or ICANN, was wrong to deny ICM Registry their application for the new “voluntary adult TLD” .xxx.

The history of the conflict, which has serious legal implications for the development of the international domain name systems, started when ICANN opened the address space to allow new industry-sponsored, generic (that is, not-country related) Top Level Domains. The sex industry soon saw the potential to generate more revenue by adding websites ending with .xxx. On its website, ICM Registry prides itself with providing, with the new .xxx TLD, a “greater degree of confidence and certainty to [the] online experience” of “willing adult consumers of adult entertainment”. The creation of .xxx would lead to a “credible, self-regulated forum for all stakeholders to discuss and actively respond to concerns about online adult entertainment.” Discussing and actively responding to such concerns was probably not chiefly on the mind of ICM Registry when it applied for the TLD. Rather, as domain names such as sex.xxx could be sold for a lot of money, considerable financial interests were at stake.

As Lisa LaMotta of Forbes.com reported, the first two most valuable domain names are related to pornography. Sex.com was the first domain to break eight-figured barriers in 2005 by changing owners for $12 million. Porn.com was sold in 2007 for $9.5 million. But financial concerns were not chiefly among those with which regulator ICANN had to grapple.

Having presented itself as a technical regulator and not as guarantor of the Internet morals, ICANN had always insisted that it would only apply technical standards in assessing applications for new Top Level Domains. But after having first decided, in 2005, that the application by ICM Registry for the new Top Level Domain met all required criteria, the Governmental Advisory Committee uniting a number of states and advising the ICANN Board in its decision intervened. The Board reconsidered its decision and ultimately denied ICM Registry the new address space. 

The Independent Review Panel now found that this “reconsideration … was not consistent with the application of neutral, objective and fair documented policy.” Harvard Law School Professor Jack Goldsmith, who provided an expert report on which ICM Registry relied, used even stronger words, saying that “the clearly fictitious basis ICANN gave for denying ICM’s application” is “most obvious”.

As the Panel pointed out, the change in opinion of ICANN could be traced back to an outcry of governments that started with an August 11, 2005, letter by Michael D. Gallagher, Assistant Secretary for Communications and Information of the U.S. Department of Commerce, evidencing a “volte face in the position of the United States Government”. This development was caused, according to the Panel, by “a cascade of protests by American domestic organizations such as the Family Research Council and Focus on the Family.”
While DOC officials seemed to first approve the new TLD, they were galvanized into opposition by critique by the Religious Right, including figures such as Jim Dobson, who had, as the Panel writes, “influential access to high level officials of the U.S. Administration.”

ICANN thus faced a dilemma: If it accepted the .xxx domain it would show that it was immune to interference by the US government. This was an important issue at that time, as the so-called World Summit on the Information Society process was ongoing at the time. The process explicitly aimed at creating a more international (read: less US-influenced) Internet Governance. But if ICANN did not reconsider the introduction of .xxx, there might have been a serious backlash from the Bush Administration, which was under pressure from Christian Conservatives. “We’re damned if we do”, ICANN Chairman Vint Cerf is quoted as saying in 2005, “and damned if we don’t.” In the end, ICANN refused to allow .xxx. Now, five years later, they were again “damned” for this decision. 

No deference necessary

The three judge panel consisted of a former President of the International Court of Justice, Stephen M. Schwebel, as Chair, the former president of both the London Court of International Arbitration and the World Bank Administrative Tribunal, Jan Paulsson, and Dickran M. Tevrizian, a U.S. federal judge for the Central District of California. The majority first underlined that “the judgments of the ICANN Board are to be reviewed and appraised by the Panel objectively, not deferentially by application of the ‘business judgement’ rule”.

Judge Tevrizian, who had been nominated by ICANN, dissented on this point saying that a de novo consideration of evidence should not have taken place. Also, he disagreed with the role of international law in the case. Though not decisive in this case, the majority ruled that ICANN was “charged with acting consistently with relevant principles of international law, including the general principles of law recognized as a source of international law”, and specifically the principle of good faith. ICANN had denied the import of international legal principles for its work. 

The majority also found that ICM Registry had met all the necessary conditions, including “sponsorship criteria” (which relate to the proposal being representative of the industry it purports to represent) and that the decision by the ICANN Board to reconsider their application was a violation of “neutral, objective and fair documented policy.”

Forced migration? 

This decision which ends a year-long battle that had pitted Internet scholars against each other does not even satisfy all representatives of the adult entertainment industry. A Top Level Domain dedicated exclusively to adult content could be used by some states as a means to force all unwanted or supposedly immoral content to migrate to this TLD which could then be easily monitored or blocked. Professor Goldsmith confirmed this in his expert report: A “website on the .XXX domain is easier for nations to regulate and exclude from computers in their countries because they can block all sites on the .XXX domain with relative ease but have to look at the content, or make guesses based on domain names, to block unwanted pornography on .COM and other top level domains.”

Will states use the .xxx domain to create a red light district on the Internet? Milton Mueller, Professor at Syracuse University School of Information Studies and Director of its Telecommunications Network Management Program and another expert witness for ICM Registry alongside Professor Goldsmith, does not think so. In a statement to the Harvard Law Record, he writes that “countries that possess both the political power and the hostility to freedom of expression required to do that are the ones that systematically block online porn anyway (China, the Arab states, Iran, etc). If it meant that the sites were merely segregated in .xxx rather than blocked altogether, it would be a step forward for adult sites. There might be some countries that try to use .xxx as a compulsory red light district, but if that just means that they are blocked the obvious response is for the online adult sites to locate in the U.S. and other more liberal countries”.

Similarly, on the “Online Adult Indust
ry News” blog, Stuart Lawley, Chairman of ICM Registry, was quoted as saying that he is “eager to work with ICANN to make dot-xxx a reality, and the time for stalling is long past.” (I would have wanted to read on, but accessing the site produced a stream of strange pop-ups of scantily-clad women and my neighbors in the library had started to frown.)

Is there anything to Judge Tevrizian’s warning in his dissent that “any disgruntled person” will now be able to “second guess” ICANN. “This is sheer nonsense”, Professor Mueller told the Record. “One has to be a lot more than ‘disgruntled’ to take on the risks, costs and time burdens required by the [process] as it now stands.” First, this is a question of money.

According to Mueller ICM Registry spent $ 4-5 million on legal representation. More fundamentally, Mueller believes Judge Tevrizian’s warning to be plain wrong: “Couldn’t you say the same thing about judicial review of Congress or the Executive Orders of the President? Or lawsuits against corporations by their shareholders? Does Tevrizian think that no corporate board can ever do wrong?” As the financial crisis has demonstrated beyond doubt, corporate boards can do wrong and courts are often right to second-guess them.

Snatching victory from the jaws of ICANN’s defeat?

In the end, ICANN’s defeat might actually be a win. Professor Mueller wrote in his blog that “the “defeat” for ICANN’s past President and Board Chair (and the Bush Administration) is actually a great victory for ICANN as an institution”. To the Record, he explained that “ICANN is a new global governance institution. Up to now, people have been deeply worried about its lack of a foundation in law, a problem caused by its global nature and its unilateral creation by the US. The feeling that ICANN has inadequate external accountability mechanisms prevails almost everywhere outside of those on the payroll of ICANN.” The new review process, however, will provide ICANN’s stakeholders with a greater sense of security and ICANN itself with some guidance. Overruling ICANN was important. “The panel proved beyond a doubt”, Mueller said, “that the independent review really is ‘independent’, and this in turn builds confidence that ICANN’s own institutional solutions can develop into the robust accountability mechanisms it needs.”  

This backbone against future government interference might come in rather handy, as only on February 24, Lawrence E. Strickling ’76, Assistant Secretary of Commerce for Communications and Information, announced that the US would end its decades-old “hands-off” policy towards the Internet: Without “government involvement”, he said in a speech at the The Media Institute, “we will lose the one thing that the Internet must have—not just to thrive, but to survive—the trust of all actors on the Internet.” 

The panel confirmed ICANN’s view on one essential point: The decision is not binding on the ICANN Board. But ICANN is likely to allow .xxx anyhow. After all, the last years saw an internationalization and a liberalization of the Top Level Domain market. These days, ICANN is accepting new propositions for Top Level Domains from cities (think .berlin), regions, and private actors. Apart from meeting certain policy conditions, it’s just the small matter of paying around US$100,000 to become the owner of your very own Top Level Domain. 

Matthias C. Kettemann, a Fulbright and Boas scholar, is an LL.M. student from Austria.

Nuance needed in dealing with Iran

BY MOHAMED HELAL

nuclear iran

Most people focus on Iran’s alleged ambition to join the exclusive club of nuclear weapons nations as a grave security threat. Whether or not Iran actually aspires to acquire nuclear capability is debatable, but what is certain is that examining the nuclear program in isolation of the political landscape within Iran and the broader strategic environment in the Middle East is a fatal mistake. 

The problem with Iran is more complex than a clandestine nuclear program or the enrichment of uranium; the problem is what Iran stands for and represents: a religious response to the problem of governance in the Middle East. This is a dangerous answer, because a regime that legitimates itself on the basis of religion will also purport to be the custodian of truth. It is a system that eliminates the marketplace of ideas and encroaches on what is supposed to be a deeply personal and private relation between man (and woman) and his God. In the Middle East, where religions were born and continue to thrive, and where people are highly emotional, such a model threatens to retard the region back to the Dark Ages. 

Worse still, as Iran feels increasingly threatened by western, particularly American, pressure, it has sought to gather regional cards that it could use in its political poker game with the West. To put it another way, Iran has planted detonation charges throughout the region that it could use to ignite the Middle East if the need arises. Thus, the ominous shadow of Iran’s political and military claw Hezbollah constantly hangs over Lebanon, threwatening to replicate the events that provoked Israel’s disproportionate war on its small northern neighbor in August 2006. Iran also periodically threatens to annex Bahrain and already occupies three U.A.E. islands in the Strait of Hormuz, which is a maritime strait critical for the global oil market. Tehran also holds many of the keys to Baghdad, with obvious implications for Iraq and the United States. Moreover, Iran funds and arms the Houthi rebels in Yemen, which are one of many challenges that are portending the division of the country overlooking the southern entryway to the Red Sea. 

The question then is, what can be done about this, which is a question the Obama administration is probably considering now. The first answer to the complex problem of Iran is simple: do not use force. The United States has, fortunately, jettisoned the deleterious doctrine of regime change, and any surgical military strike will never eliminate Iran’s dispersed and well-protected nuclear program. If anything, a military operation against the Islamic Republic will unite Iranians, who will rally around the flag, and, more dangerously, compel Tehran to ignite the powder-keg that is the Middle East.

What we need is a more sophisticated strategy of talking softly and carrying a big stick. For Iran the big stick should be the threat and gradual application of tighter multilateral, U.S. and European economic and military sanctions that generate enough local pressure for the regime to mend its ways. Tehran must place all nuclear facilities under full IAEA inspection, withdraw its support of subversive elements in the region and to refrain from intervening in the affairs of its Arab neighbors. In return, Iran should be promised the rightful place of the glorious Persian civilization at the table of nations, and it must receive assurances of non-belligerency from western powers and from Israel. This strategy must also be coupled with a sincere effort to free the Middle East of all weapons of mass destruction. History has also taught us that all of the Middle East dilemmas will be ameliorated by peacefully settling the Arab-Israeli question and by the establishment of an independent and viable Palestinian state in the West Bank and Gaza. 

This requires both a dialogue with and pressure on Iran, and continuous consultations with regional players to reach understandings that avoid past mistakes. For too long the security of the Middle East and Persian Gulf has been dictated by cursory and shortsighted policies that have not fully comprehended the complexities and subtleties of the region. We must move beyond strategies like Reagan’s “Gulf containment” and Clinton’s “dual containment” that have perpetuated instability and insecurity. Instead, we must initiate a serious dialogue with all the relevant and influential parties, including Russia and China, to devise a sustainable policy that promises the weary people the Middle East peace and prosperity. 

Mohamed S. Helal is an Egyptian diplomatic officer who studies at Harvard Law School as a Fulbright Scholar. He served in the Cabinet of the Minister of Foreign Affairs of Egypt from 2005 to 2009. The opinions expressed in this piece are exclusively those of the author.

Howard Zinn’s people speak…through celebrities

BY CHRIS SZABLA

zinn

The unfortunate passing of Howard Zinn earlier this year was accompanied by a greater number of panegyrics about his work than probing explorations of its legacy. Zinn’s most famous book, “A People’s History of the United States,” is an exposition of American history’s marginalized narratives: poorly-treated low-rank soldiers of the Revolutionary War, indebted farmers, slaves, freedom fighters for civil rights, labor activists and organizers, even Socialists – a list that gives one a sense of the political direction in which the book is often taken to lean.

Zinn worked on “A People’s History” over the 1970s, when it would have been the perfect expression of the Zeitgeist, in which radical critiques of prevailing orthodoxies reigned. But by the time it appeared, in 1980, conservatism was staging a comeback, and Ronald Reagan’s presidency ushered in a patriotic renewal. Instead of being embraced as part of the spirit of the times, Zinn’s book became a partisan lightning rod, a rally point and target in the culture wars.    

That made the reaction to “The People Speak,” a documentary based on Zinn’s work that aired on the History Channel late last year, just before his passing, fairly predictable. The History Channel tends to play it safe ideologically. When it actually runs historical programming (much of its content is now reality TV), it prefers to stick to straightforward accounts of military strategy, leaving politics out of sight and mind. Its moniker, “the Hitler Channel,” is hardly undeserved.

But even the battlefield isn’t completely apolitical: it turns out that many fans of military history either prefer their American story with a side of triumphalism (you don’t see many History Channel programs about Vietnam). So it came as little surprise that the channel’s decision to postpone its regularly scheduled D-Day docudramas for a film based on a controversially revisionist work of American history caused a bit of an uproar. Devoted viewers declared they would abandon a channel they’d watched religiously for years. In the context of a growing chorus in American political discourse that labels any tendency it doesn’t approve of with the conversation-stopping pejorative “socialist”, Zinn’s documentary went so far as to celebrate individuals who wholeheartedly embraced that label.

Indeed, much of Zinn’s work – reflected in “The People Speak” – still seems fresh. Labor history may continue to thrive in the trenches of academia, but it’s hardly scratched the surface of the public discourse, even at a time when it might seem more relevant than ever. Nor does one hear much today about the class resentment that Zinn shows was surprisingly prevalent against the ceaselessly venerated Founding Fathers.  And in the face of the Obama administration’s plodding and hesitant response to the ongoing recession, Zinn’s claim that Franklin D. Roosevelt was cajoled into implementing many New Deal reforms by popular protest and labor action is a frightening reminder of what happens when government remains cautious and inattentive in the midst of crisis.

Other segments deliver a 21st century update on the themes that Zinn piled into the original book, linking the ongoing wars in Iraq and Afghanistan to previous episodes of American expansionism. Especially necessary, given the rest of the History Channel’s programming, is Zinn’s reminder that the Second World War – which, like other wars in American history, heightened instances of segregation and class conflict, and which inflicted needless deaths on civilians – has been historically sugarcoated, its memory exploited to justify a seemingly ceaseless stream of further conflict.

But, thirty years after the publication of “A People’s History” many of Zinn’s stories have lost their radical edge – if simply because they have been so successfully incorporated into mainstream thought. Few would dispute the historical relevance of Frederick Douglass or Malcolm X. Anarchist Emma Goldman and Socialist leader Eugene V. Debs are staples of any decent U.S. history textbook. The ideas that slavery was acquiesced to by its victims or that it could be thought of as a familial relationship (notions that still had currency in the 1950s) are ridiculed. Many of the faces and voices Zinn first pointed to thirty years ago are now firmly entrenched in curricula – if still not universally acclaimed.

Where does that leave a contemporary reworking like “The People Speak”? Beyond being a nice capstone to Zinn’s career, and illuminating some of his less popularized insights, the documentary itself comes off as a bit counterproductive. Beyond standard historical stock footage and voiceovers by Zinn, the star attractions are celebrities who give theatrical readings of primary source documents, acting out the roles of the marginalized voices in Zinn’s narrative. Some of the performances are strong and arresting, but in other cases, the stars’ wattage distracts from the historical message.

Some of the choices are particularly cringe-worthy. Zinn cites “Dear Mr. President,” an anti-Bush ballad by singer-songwriter Pink, as a contemporary example of activists who decry the ironies arising from a system of ideals compromised by a stark reality – and Pink appears in the film to perform the entire piece. Pink’s message is legitimate, but her presence – and celebrity – diminishes the focus on the suppressed and subaltern. The same is true for many of the other stars’ involvement. It’s a little strange that the producers felt that the travails of the underclass were best expressed by the wealthy, superficially-admired people to whom Americans already wantonly turn over so much of their money and time. If they were meant to grab viewers’ attention, they probably did not wind up doing so for the words they were selected to speak.

That does not necessarily impugn the celebrities’ own motives for appearing in the film; some of them are informed fans of Zinn’s work – particularly Matt Damon, who was inspired by Zinn while growing up near him in Cambridge (he famously championed “A People’s History” in Good Will Hunting, the breakout film he wrote and starred in with Ben Affleck). Damon only plays a bit part on screen in “The People Speak,” but was a major force behind the scenes: He spent nearly a decade trying to bring it to television.

Doubtless part of the opposition to the film – and part of the fury that has frequently been leveled at Zinn – is that his work appears to emphasize only the negatives in American history. A narrative that dwells on events like the debtors’ rebellions of 1786, which motivated the Constitution’s instantiation of a strong central government; the New York Draft Riots, exposing the class conflict simmering beneath the surface of the Civil War; or the oppression continuously endured by Native Americans does not seem to leave many positive examples. But Zinn counters by asserting that there is a silver lining to his narrative: it shows “people below behaving magnificently”. 

In fact, like any other positive account of American history, Zinn celebrates democracy, albeit a version of American democracy that deeply emphasizes extraparliamentary and extraconstitutional movement as the engine of meaningful change. His stance raises questions about the extent to which he would continue to embrace these ideas today. The increasing noise made by the Tea Party movement is a reminder that plenty of “people’s movements” never made it into Zinn’s history – those that didn’t fit his ideological valence. Radical libertarians and religious fundamentalists have also had a significant – if sometimes frighteningly destabilizing – influence on American history. As much justice resulted from the courageous acts of many individuals Zinn celebrates, the rule of law can be bent both ways.

Unemployed law student will work for $160k plus benefits

BY ANONYMOUS 3L

“The greatest thing in this world is not so much where we are, but in which direction we are moving.” – Oliver Wendell Holmes, Jr.

“Gah! I’m choking on my own rage here!” – Moe Szyslak

I used to tell people that if they were ever lacking in self-confidence, they should apply for a tenure-track position in a philosophy department somewhere.  In return, you get what amounts to a mail-away self-esteem kit:  a letter praising your accomplishments, expressing astonishment at your charm and sophistication, and assuring you that you will be a great success wherever you ultimately gain employment. It’s extraordinarily fulfilling to hear your praises sung by people of such power and influence, in particular if you have no interest in taking a crucial step towards adulthood.   Only, again, you know – they don’t want to actually hire you.   It isn’t an experience I expected to repeat when I enrolled at Harvard Law School.

It’s been a little over five months since I found out I did not get an offer.  In those five months, certain topics have been rehearsed with wearying regularity.  Greater world, on behalf of the Harvard 3Ls with no offers, let me tell you the things we know:

1. It’s not our fault.  The economy changed unexpectedly, and things are tough all over.

2. In fact, as Harvard graduates, we have more opportunities.  Most people encountering employment challenges in this economy are in worse positions than we are.

3. The loss of Biglaw opportunities means we may find something else from which we derive immense satisfaction, and which we may never have otherwise pursued.

4. People with offers but no start dates are in a poor position as well.  Even those with deferrals of specified duration face the possibility of an unexpected deferral extension, or even an outright retraction of their offer.  In fact, with things as bad as they are, there’s really no guarantee that even those who manage to start work won’t find themselves laid off somewhat soon.  Biglaw right now simply doesn’t offer the degree of security it used to offer.  Everybody is in the same boat.

Joined to this knowledge is the understanding that it is, to be fair, rather difficult as a Harvard Law Student to abandon all self-awareness and immerse oneself in self-pity.  We remain conscious of the privileges we enjoy and the opportunities that exist for us even in our darkest moments.  That isn’t to say we who were no-offered have no room at all for despair.   But it feels impolite.  Those of us who had been hoping to become Biglaw associates have been dealt a real financial blow.  Must we admit what we were told to leave out of admissions essays and job interviews — that we did come to law school with the hope of making money?  Must some of us admit that we hoped to make quite indecorous and undignified amounts of it?  Or are we to put on a brave face and tell the world that our goal all along was to achieve enlightenment and live on an ashram, and for that purpose and that purpose alone did we deprive ourselves of sleep and commit ourselves to learning the Hand formula and the rule against perpetuities?

But the rejection has greater bite than a reorienting of our student loan repayment schedule.  Not everyone who was a summer associate at a Biglaw firm had partner ambitions.  Whatever the reasons we may have had for spending the summer of 2009 as a summer associate, the summer ended by confronting us with our deepest fear.  Like many people praised for intelligence, talent, and discipline, Harvard Law Students are prone to the paranoia that we will one day be exposed as the frauds we suspect ourselves to be. 

Then-Dean Elena Kagan ’86 alluded to these fears when we began our time at Harvard.  Addressing the Class of 2010, she told us that our anxieties were ill-founded, and that we had all long since established ourselves as deserving of our reputations and the opportunities they made possible.  So we studied, and we subcited, and we networked, and we keycited, and we summer associated.  And employers looked at our grades, and our journals, and our work product, and our work ethic, and said, “We don’t want you.”  We came from Harvard, and they were nonetheless unimpressed.  Something about us was so unappealing that it outweighed the appeal of having another Harvard graduate at the firm.

And so we wonder – what mark on our resume is so bad that it outweighs the Crimson H? 

We know the market has shrunk, we know the client base has retreated, we know that everyone is suffering, but we also know something else:  not every Harvard 3L got no-offered.  We did.  We didn’t measure up.  Maybe the hiring process was arbitrary.  Maybe we really had almost no control over some crucial factor. But most of us got here because we’ve been on a long journey, with increasing momentum.  And that momentum just evaporated.

I’m confident we will all land on our feet.  And I’m certain that the experience will be an opportunity for us to find strength we didn’t know we had.  I’ve met us.  And we are, to be frank, pretty amazing.  But the dream of Biglaw is hard to let go.  And after all, there isn’t necessarily any shame in wanting to make money.  Some of the wealthiest Americans have been its greatest philanthropists.  Bill Gates has retired from Microsoft and dedicated a large portion of his financial empire to addressing global warming and poverty.  And Tony Stark created his Iron Man suit to fight the spread of technological weaponry the sales of which, well, financed the creation of his Iron Man suit.  Fine, that one isn’t very persuasive.  Still, I don’t think we should be judged for wanting to be Biglaw associates with the money and power that would eventually have brought.  Maybe we just wanted to be Iron Man.  Think about it.

When will this generation stand up?

BY MATTHEW HUTCHINS

As the twenty-first century waxes into its second decade, clouds are gathering over the American Republic. A faltering economy, stymied foreign policy, and rising specter of corporate domination of life at home and authoritarian domination of nations abroad has put the public in a state of dissatisfied disillusionment. We need leaders to step forward with a straightforward elaboration of the principles that unite our interests across party lines, but the collected inertia of the two-party oligarchy and the sensationalistic media manages again and again to steamroll over the voice of the individual in favor of the talking head, the rehearsed and scripted speech, and the ten second sound-bite. 

The Greatest Generation has been put to bed, and the Baby Boomer experiment has once again overdosed on its own hedonistic excesses.  Now we tread in a desolate chasm while the next generation prepares to stand up and have its voice rise above the noise of the aging demagogues that have populated the media landscape during the Clinton-Bush era.

But are we entering an even darker chapter in America’s degeneration into demagoguery?  Glenn Beck’s recent appearance at CPAC offers surprising evidence of the fervor excited by base appeals to the anger and resentment of the crowd.  More disturbing yet is the shift from a Republican ideology of veiled elitism toward overt anti-socialist fascism.  Beck has begun an escalating revisionist campaign against the core of progressivism and all of its historical proponents, including Roscoe Pound and the Legal Realists.  In his mind and rhetoric, the gilded age of the 1920’s provides a model for America’s True Destiny, and rather than retreating from the seemingly discredited Reganite philosophies, Beck elevates them to mythical status.

Harvard Law School should be outraged at this campaign, not because Beck himself is a significant figure, but because the public is playing directly into the hands of this charismatic fool and turning against every concept that this institution has spent over a century developing and deploying into the legal culture of the nation. And while we sit comfortably in the halls of Langdell pondering with glee the control of the White House by Barack Obama ’91 and Cass Sunstein ’78, the policies so virulently condemned when practiced by Cheney-Bush are silently tolerated under our chosen President.

The missing element in the Thunderdome of present-day discourse is an overarching conceptual framework within which the course of the nation can be justified according to a set of consistent guide posts.  That is not to say that we need to search through history like Beck to invent a lost gospel that will guide us into the future.  Rather, we must look at the new circumstances of technology, economic reality, international relations, civil rights, human rights, and environmental concerns and assemble a vision of our future that is more than a grab bag of buzz words to be exploited in talking points. And to do this we must step out of our overly intellectualized artificial domain and down into the hedge rows of the public discussion of government and the law. 

Our nation needs genuine leaders who can navigate the uncharted highway of our future and lead us toward solutions that are based on logical argumentation, common sense, and the spirit of participatory democracy that has sustained our Republic during its darkest nights. We are the ones to take up this responsibility. It is our time to take up the torch and charge forward.

Matthew W. Hutchins is Co-Editor-in-Chief of the Harvard Law Record.

International law is like a box of chocolates

BY MATTHIAS KETTEMANN

forrest gump world

Forrest Gump’s mother famously said that life was like a box of chocolates: “You never know what you’re gonna get.” The same holds true for international law. Taking the box of chocolate und accepting “what you’re gonna get”, independent of whether you like the particular praline, is what international law is all about. Since the famous Peace of Westphalia of 1648, which brought along the emergence of today’s international legal system, states have taken the box and eaten both the bitter chocolate (i.e., they have accepted their obligations and changed their behavior accordingly) and the nougat (when they have enjoyed the international legal rules that reaffirmed their interests).

Then came along Harvard Law School’s Jack Goldsmith and University of Chicago Law School Prof. Eric Posner ’91. In 2005, they published The Limits of International Law, which argued vehemently for what could be termed a “nougat only approach” to international law. In essence, they posited that international law does not, in fact, pull states toward compliance. States conform with international law, they argued, only when it furthers their interests.

The limits of international law

Former U.S. Ambassador to the UN John Bolton, and more influential thinkers before him, such as Thomas Hobbes, went so far as to question the very existence of international law.

Goldsmith and Posner don’t go nearly as far. They  merely relied on rational choice theory to argue that international law does not act as an external constraint on state behavior. The Limits of International Law was widely read and critically well-received. But some critics, such as international law and economics expert Anne van Aaken of Switzerland’s University of St. Gallen, rightly pointed out that there were limits to the Limits book, as the authors only took account  of the interests of states to conform their behaviour to international law at one – arbitrary – point in time. More significantly, Goldsmith and Posner ignored the possibility (and, I would argue, likelihood) that states have a non-instrumental interest in behaving in conformity with rules, so as to stabilize the system. Of course, in keeping with an state interest-focused “nougat” approach to international law, Goldsmith and Posner could counter that in so doing states are actually, again, acting in sync with their interests – their long-term ones.

A stronger observation is that rational states will accept the obligatory nature of international legal rules as rules, based on an ex ante assumption that international rules are legitimate since, by so doing, they can most likely achieve advantages incuding and beyond their own self-interest (such as world peace, international security, or the maximization of their reputation) in the long run. In what Professors George Norman and Joel Trachtman called a “customary international law game”, states sometimes choose to disobey a rule, but rarely question the rule’s legitimacy as such.

To better understand this point, think of a common thief. He will break the rule against violating another person’s property on an individual basis, but does not doubt the existence of the more general rule providing for the protection of property. Indeed, his risky acquisition of property is made because he implicitly trusts the state’s legal system to protect his property, even if it was illicitly obtained. Even thieves hate thieves. Similarly, in international law, it is often the rogue states that, while breaking international legal rules on an individual basis, believe (and only sometimes abuse) the international legal system in toto. Think of Iraq, consider North Korea, and look at Iran. In fact, the choice by a state to ignore an international rule, or to question the validity of this rule, might, in fact, contribute to an increase its power to oblige – by making others states voice their opposition to the violation. The real difference between theft and the violation of international legal norms by rogue states is that, while we see the consequences of the former on “Cops”, we have to wait for some years to see the outcomes of the latter – as “Breaking News” on CNN.

Does Europe believe in international law?

In a November 2008 Wall Street Journal op-ed, Goldsmith and Posner apply their theory on the limits of international law to Europe. They write that “[l]ike the Bush administration, Europeans obey international law when it advances their interests and discard it when it does not.” In essence, they argue that even Europe, which professes to be international law-friendly, does not really believe in international law’s binding power.

In their first example, Goldsmith and Posner consider the case of Yassin Abdullah Kadi and the al Barakaat International Foundation. Kadi’s assets were frozen according to a UN Security Council Resolution against financing terrorism, which had been inscribed in an EU regulation. Goldsmith and Posner write that, deciding the Kadi case, the “the European Court of Justice ruled that the Security Council resolution was invalid.” They are wrong. In its 2008 judgment, the ECJ merely ruled that the regulation implementing the Security Council resolution was invalid because it violated Kadi’s fundamental rights. The ECJ noted that the protection of fundamental rights must be “considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement.” This does not mean that the ECJ would ignore international law – on the contrary. The protection of fundamental rights is deeply rooted in international law. By referring to a “constitutional guarantee,” the ECJ likens its role to that of a constitutional court ensuring that all acts passed by the organs it oversees respect fundamental rights. There is nothing wrong with that.

Goldsmith and Posner interpret the decision as meaning that “European countries must disregard the U.N. Charter … when it conflicts with European constitutional order.” Again, they are wrong. The Court merely pointed out that any EU regulation implementing a UN Security Resolution must meet minimum human right standards. By reforming the Sanctions Committee, established to oversee these resolutions, the UN has in fact taken up some aspects of the ruling to render the system more accountable.

Another example that Goldsmith and Posner bring to support the idea that Europe has a self-interest-focused approach to international law is the 1999 NATO intervention in Kosovo. “European nations,” they write, “participated in NATO’s bombing of Kosovo without Security Council authorization.”  This is true, but as a Commission that looked into the intervention later concluded, their action was at least legitimate. Further, the intervention served to stop bloodshed and massive human rights violations in Kosovo and thus served one of the most important goals of the international legal order: protecting individuals. The Kosovo case was later  seen as the first important example of so-called humanitarian interventions, many of which have gone on to be officially sanctioned by international legal bodies. The evolution of the “responsibility to protect” has also been influenced by the Kosovo intervention. Rather than ignoring international law and enforcing their own interests, the Kosovo intervention thus served to confirm underlying principles of international law.

Errors have been made – but also corrected

I have to concede that Europe’s approach to trade disputes in the framework of the WTO has not been exemplary. But very often, especially with two of the issues Goldsmith and Posner mention – “resisting importation of genetically modified foods, or beef from cattle raised with growth hormones” – Europeans follow an international legal concept, namely the precautionary principle, in opposing im
ports. It is true that European countries did not implement WTO rulings against them in these cases, but as legal history in both the U.S. and the EU amply shows, the non-implementation of certain rulings, in exceptional cases, does not serve as evidence of a system’s comprehensive failure. International economic law has been a huge success story, but only a few well publicized disputes make the headlines.

It is also true that some European countries have cooperated with the U.S. with regard to extraordinary renditions, but this attitude has changed. As a number of cases before UN bodies including the Committee Against Torture and the Human Rights Committee show, mistakes have been made and international law has been violated. But again, this does not help Goldsmith and Posner in showing that European states do not believe in the binding nature of international law or ignore it whenever they feel like it.

The importance of values

Goldsmith and Posner mention other examples, including European states’ sometimes wavering support for the ICC, and follow this up with the conclusion that “Europeans hold their values and interests dear, just as Americans do, and will not subordinate them to the requirements of international law.”

But they neglect to mention that values are influenced and honed by international law and international law, conversely, serves to express and implement these values. There is no relationship of subordination. Rather, international law, like every legal system, creates and is supported by a value system based on intricate power equilibria and sometimes mutually contradictory goals. The international legal system is more complex than any national system, even though – or because – it has far fewer actors. That on the international legal plane values clash, bad choices are made, rules are broken and judgments remain unimplemented cannot be doubted. But this is also the situation in every national legal system  and cannot be used to cast a shadow of doubt over the clear evidence that states consider international law to be just that: law.

The end of the Cold War brought what the Finnish international legal theorist Martti Koskenniemi termed, an “enthusiastic revival” of international law. New actors emerged, new laws were made, new hopes voiced. Within the last twenty years, the system of international was greatly energized, and the United States was an important contributor to and shaper of international legal norms, which reflected, inter alia, American values. Given this fact, it is incongruous to argue, as do Goldsmith and Posner, that international law reflects only the interest of powerful states and is therefore not “good” as such.

Just like a box of chocolates

But there is also no reason for a prima facie assumption that a system reflecting the interests of powerful states is bad. This bears out especially in light of the renewed commitment, by the Obama administration, to international law as the prime tool to engage other states and to find peaceful and sustainable solutions to international conflicts. And with the notable exception of historically explainable, but outdated institutional rules, such as the membership and decision-making structure of the Security Council, international law, just as any legal system, has a strong immune system and phases out – through state practice – rules which do not conform to the aspirations of the majority of states. Again, it is like a box of chocolates. Intrinsically good, but with some bitter pieces. 

To continue in this line of thought (and, yes, I am getting hungry as I write this), Hugo Grotius, often described as the “father of international law”, wrote that there lies in each person an “appetitus societatis”, an appetite, or desire, to live peacefully in an ordered society, structured by binding rules of a general nature and applicability. I see no reason why states would not also have this “appetite”. In fact, I would argue, they do.  International law needs to be binding, it is binding, and states accept it as binding – Goldsmith and Posner’s arguments notwithstanding.

More than forty years ago, Louis Henkin ’40 formulated, in How Nations Behave, that “[i]t is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” While not wrong, he was imprecise: It is not only “probably” the case, but evidence has shown that his statement is unequivocally true. 

States follow the Forrest Gump Approach to International Law, eating the sweet and the bitter pralines, enjoying their rights and respecting almost all of their obligations almost all of the times, even if they contradict state interest in the short run. They do so, because they know that the international legal system, and not any particular rule, reflects their values, and will, in the long run, ensure the realization of such values with more effectivity and sensibility to human rights than any nation could possibly achieve alone.

Matthias C. Kettemann is an LL.M. student from Austria.

A hopeful future for European human rights

BY MATTIAS KETTEMANN

The roads leading to the European Court of Human Rights in Strasbourg are getting faster

In 2010, the  European Convention on Human Rights will celebrate its 60th anniversary. One might think this is a reason to celebate, but for Thorbjørn Jagland, the Secretary General of the Council of Europe, the Convention’s institutional mother, it’s not. In December 2009, he warned that the European Court of Human Rights, which oversees compliance with the Convention, was in a “desperate situation” and “no longer able to function as it should”; some judgments had been “reduced to a few lines”, amounted to “little more than an accounting exercise” and contained “less than a bare minimum of reasoning”. In brief, the situation was “intolerable and unworthy of our [the Council’s] member States’ repeatedly reaffirmed commitment to human rights.”

In general, the Court, which sits in Strasbourg, France, has been considered a huge success. What Secretary General Jagland, along with numerous human rights lawyers and activists over the past years, rightly criticized was that success had been too overwhelming. As the Court’s President, Jean-Paul Costa, pointed out in his Annual Report, in just one year 57,000 new applications had been allocated for decision and 35,460 applications were decided: 33,065 by relatively brief inadmissibility or strike-out decision, but 2,395 by sometimes extensive judgment.

To put things into perspective, in 2008 the U.S. Supreme Court published just 74 opinions. But the Strasbourg Court is charged with a mandate that should give rise to a much higher caseload: It must ensure adherence to the Convention by all 47 members states of the Council, and is, therefore, the court of last instance of human rights matters for 800 million people, a little less than three times the U.S. population.

It’s no wonder, then, that cases before the Court take a long time. So long, in fact, that sometimes the Court’s hearing of cases concerning the right to a fair trial within one of the Convention’s member states winds up violating the right to a fair trial at the Court – due to its lengthy proceedings.

Still, there are silver linings to the clouds that Secretary General Jagland saw during a year when the Court should be celebrating. In fact, three silver linings or “reasons for optimism” as President Costa put it in a rather more upbeat press conference on January 28th. Taken together, these three factors promise to make 2010 a revolutionary year for what is widely accepted to be the most successful and most advanced regional human rights protection system in the world. Let us consider them in turn.

First, the Lisbon Treaty, which finally entered into force on December 1, 2009, affirms that the European Union will accede to the European Convention of Human Rights. While there are still a number of unresolved procedural questions (should, for example, the EU now be represented by its own judge on the Court?) and serious substantive issues to clarify (especially concerning the relationship between the Luxembourg-based European Court of Justice, which rules on questions of EU law, and the Strasbourg Court), the move will have limited substantial impact on the level of human rights protection in EU countries. Already under the pre-Lisbon Treaty framework, fundamental rights, “as guaranteed” by the European Convention, were “general principles of the Union’s law.” President Costa described the future accession by the EU as a “major step towards creating a European fundamental rights space”. It is, at the very least, a symbolic one. 

Also of substantial symbolic and real importance is the vote by the Russian State Duma to finally ratify Protocol 14 to the Convention, which was confirmed by the Duma’s upper chamber, the Federation Council, on January 27. Russia had been the only one of the Council’s 47 member states not to ratify the Protocol, mainly out of political disagreements with Strasbourg over the Court’s scrutiny of military activities in Chechnya, which had invariably led to a number of judgments holding Russia responsible for torture and illegal killings in there. Indeed, complaints against Russia account for roughly a third of all cases lodged with the Strasbourg Court.

Protocol 14, which is part of a larger process of reform of the European human rights system, provides for substantial procedural streamlining, by foreseeing, inter alia, new judicial formations, such as decisions rendered by single judges, or three-judge committees. Further, cases which similarities to already decided cases can be struck off the record (the famous pilot-judgment procedure), as can the untested and potentially problematic category of cases where an applicant has suffered no “significant disadvantage”. The Protocol will also allow the Committee of Ministers, a political organ, which is charged with supervising the enforcement of judgments, to work more effectively with national governments to ensure compliance. 

While the changes brought by Protocol 14 have the potential to substantially streamline Court proceedings, they are not revolutionary. Some procedural provisions have already been implemented through Protocol 14bis, which was adopted in May 2009, after it became apparent that Russia’s ratification of Protocol 14 would take some time. The pilot-judgment procedure has also been applied, rather successfully, through a creative interpretation of conventional procedure rules from 2004 onwards, when it was introduced in Broniowski v. Poland. Protocol 14bis will become moot when Protocol 14 enters into force on June 1, 2010, provided that Russia’s instrument of ratification reaches Strasbourg by the end of February. 

The third positive impetus for the European human rights protection system will have its origin in the idyllic Swiss town of Interlaken, where, on February 18-19, a “High Level Conference on the Future of the European Court of Human Rights” will take place. President Costa described the conference as a “landmark” event in which states would reaffirm their commitment to human rights and, more significantly, “draw up a roadmap for the future development of the Court”. A number of Council officials have weighed in with statements on what needs to be achieved in Interlaken. While differing on the details, the main challenges are clear (though the ways to achieve them are less so).

President Costa himself suggested a number of obvious and not so obvious long- and short-term goals. He proposed, for instance, to develop the idea of filtering applications by legal secretaries as it was unclear whether all applications “should be examined judicially”. Drawing “inspiration” from the EU’s judicial system, he also suggested adding a Human Rights Tribunal subordinate to the Court as a European human rights court of first instance, though this would contribute to what some criticize as the mushrooming of European human rights institutions, with largely parallel bodies existing in the parallel structures of the Council and the European Union.

Among the new ideas to be explored “immediately,” President Costa finally counted “class actions” or collective applications (which are largely alien to the European legal system) and the possibility of referral by the Court of purely repetitive cases to member states or the Committee of Ministers to be “dealt with on the basis of well-established case-law”. 

While the details, as mentioned before, will still need to be worked out and the days before the Interlaken conference are sure to be filled with intensive intra-European human rights diplomacy, one conclusion of President Costa is certainly true: Reforms must bear in mind the “principle of a better sharing of responsibility between the Court and the States”. Truly, ensuring human rights protection is not a matter that states can leave to a court alone, especially one as swamped with cases as the European Court of Human Rights. It is a common responsibility. 

Interlaken literally translates as “between the lakes”. Let us hope that when it comes to reform of the Court system Europe’s leaders will not get wet feet. 

< em>Matthias C. Kettemann is an LL.M. student from Austria.

Bob Mnookin deals with the devil

BY NATHANIEL FINTZ

devilbargain
Robert Mnookin ’68

You are beside yourself with rage.  Your small research-and-development firm in Silicon Valley has partnered with a Japanese company to manufacture and distribute your product.  But you’ve just discovered that this company has violated your contract by secretly creating a knock-off of the design you licensed to them—and selling it in the Chinese market!  They deny wrongdoing, and they also want to renegotiate your original contract. 

You are so angry you can hardly think straight.  But what should you do?  Should you bargain with this devil?  This question, which arises in so many situations, is central to Bargaining with the Devil: When to Negotiate, When to Fight, a new book by Professor Robert H. Mnookin ’68, Chair of the Program on Negotiation.  Rejecting any categorical answers to that fraught question, Mnookin develops and presents a highly nuanced, context-based approach for how one can choose wisely between battle and bargaining. 

The situation described above is but one of several captivating stories that fill the pages of Mnookin’s book.  Each chapter recounts a real-life, high-stakes conflict where emotions ran high.  The contexts differ radically: the chapters include a business conflict between two giant computer companies, a bitter American divorce, and a family inheritance fight.  Other stories emerge out of profound political conflicts.  Some involve political leaders like Winston Churchill or Nelson Mandela; other tales concern lesser-known figures who came face-to-face with Nazi officers or the KGB.  As Simon & Schuster officially releases Bargaining with the Devil, bookstores might have some trouble deciding which section or shelf should be its home.  History?  Current affairs?  Business?  Family?  All of the above?        

In spite of this conspicuous variety, Mnookin’s tales all share a set of key elements.  In each tale, demonization is rampant, and at least one person perceives an adversary as evil.  In some cases Mnookin thinks the perception of evil is fully justified—in others, a mere product of partisan animosity.  And in every single story the same decision must be made: negotiate or fight? 

The compelling nature of this question was evidenced by the crowd in the Ropes Gray Room on February 4, when over two hundred people attended a reception and panel in celebration of the book’s publication.  Along with Mnookin, the featured panelists included Dean Martha Minow, Professors Gabriella Blum LL.M. ’01 S.J.D. ’03 and David Hoffman ’84, and Margot Strom, Executive Director of the think tank Facing History and Ourselves. 

So, should you bargain with the devil?  Mnookin distances himself from the standard categorical answers.  Some would always bargain with the devil; others would never do so.  Speaking to the Record, Mnookin characterized the first view as “the conventional wisdom in my field”—the conviction that “you should always be prepared to negotiate with your enemy, because after all that’s the only way you can make peace with your enemy.”  In rejecting this categorical position, he demonstrates a laudable boldness: at the panel, Blum noted how remarkable it is that Mnookin, “who has dedicated his life to the negotiation field in both scholarship and practice,” here questions a basic assumption that is so fundamental to that field. 

Mnookin also firmly rejects as unwise the opposite notion—that you should never negotiate with an adversary whom you don’t trust or who you think is evil.  He questioned, for example, the Bush administration’s refusal to negotiate or engage with Iran.  And he challenged the notions of some litigators or public interest lawyers who think it is always better to fight it out in court than to negotiate a deal.  

Rejecting both these categorical answers, Mnookin expressed his view that “the challenge is to make wise decisions at a particular time in a particular context.”  Accordingly, the book endeavors to answer the question, “By what process might one try to go about making a wise decision?”  When you’re thrust directly into the presence of a devil, how can you avoid the common traps (such as tribalism, demonization, and dehumanization) that inhibit clear, reasoned thinking?  To answer this question, Mnookin suggests a single “framework” that can consistently facilitate a wise decision about whether or not to bargain with the devil.

This framework involves asking yourself “five basic questions.”  First, inquire into your interests, and those of your adversary.  Second, investigate your alternatives to negotiation, and those of your adversary.  Third, consider whether any potential deal could satisfy both parties’ interests better than their respective alternatives to negotiation.  Fourth, consider the costs of negotiation.  Fifth, consider the likelihood that a deal, if reached, would be implemented.  If this framework seems coldly rational, that is because it is tailor-made to help isolate the signal from amid all the noise—to tease the precious thread of reasoned analysis out from amid a tortuous tangle of other non-rational strands.

In short, Mnookin advocates a particular decision-making process.  He acknowledged that “[d]ifferent people applying the framework can reach different conclusions.”  This is because “assessing the costs and benefits of alternative courses of action involve predictions, and always involve the application of values, and people can disagree.” 

Nowhere is the book’s admirable nuance more evident than where Mnookin fleshes out his approach to moral judgments: “[W]hen the analytic side [of the brain] is acting as a dispassionate judge weighing all the arguments, not a lawyer defending a foregone conclusion, … moral values should, and in some cases must, be factored into decision-making.”  The limited but crucial point is to avoid any abdication of reasoned analysis.

In each chapter, Mnookin offers his appraisal of each character’s decision on whether to fight or negotiate.  But he makes a point of “giving enough evidence … and telling the story in a way where there’s plenty there if people want to reach a different conclusion than the one I reach.”  As Blum noted, “it is only a very confident writer that can do this.”  The book invites the reader to engage closely with each tale; during his writing process, Mnookin thought carefully about how to “take the reader into the story.”  Storytelling is “a different kind of writing than what I’d ever done before,” Mnookin said, yet he has met this new challenge with great success: Minow hailed the stories as “compelling,” and Blum added that each one reads “like a page-turner.”  

Mnookin expressly welcomes diversity in his readership.  Hoffman described for the audience in Ropes Gray just a few of the many ways that the book will be directly useful to “the dispute-resolution world.”  At the same time, Mnookin said that while his other books have been aimed primarily at academics or professionals concerned with negotiation or conflict, he hopes this book will also reach a broader audience.  Mnookin is surely correct in his belief that “there are a lot of people that can connect with the theme of the book,” which arises with great frequency in everyday business and family situations.  “There are many other stories that could be told” and “lots of other chapters” that could be written, he said.   

Mnookin also singled out what he called “the NPR audience”—the “intelligent lay reader who is interested in ideas” and who is especially likely to find the book intellectually stimulating.  Also, Blum remarked, “There are definitely a number of contemporary leaders I’d love to send the book to.”  Last but not least, Mnookin’s readers will s
urely include HLS students—especially since he might assign some of the chapters of the book in next year’s Negotiation Workshop.  Mnookin’s book should be considered required reading for students and non-students alike.  And within this diverse readership, few are likely to disagree that if you read Bargaining with the Devil, a face-to-face encounter with evil will never make you lose your wits.  Satan, for his part, would probably want this book banned. 

Citizens United: What happens next?

 

 

Citizens United v. FEC is the kind of opinion that deserves fierce and decisive condemnation by the American public. Indifferent to the threat of unrestrained economic power, and wedded to a rhetoric of corporate personhood that only seems plausible in the realm of disorienting metaphor, it preaches a vision of free speech that most Americans have rejected for over a century.  Judicially rewiring the First Amendment into an efficient convertor of economic might to political influence, Justice Anthony Kennedy ’61 et al. rewrote a major swath of constitutional law in answer to a question posed only by the majority to itself.  As a result, our First Amendment will spend the foreseeable future frozen in irony – a status born of the role it now plays in gutting the very right it exists to champion.

Harm to free speech is only the beginning, however, of Citizens United‘s consequences.  As judicial and legislative elections fall under the vastly expanded sway of corporate dollars, we can anticipate a new bevy of creative tax loopholes, deregulatory initiatives, and pro-business doctrinal shifts in many fields of private law.  And as Prof. Mark Roe ’75 observes in the Financial Times, Citizens United may actually reduce economic dynamism by encouraging incumbent business interests to deploy their new political muscle against emerging market entrants (who lack the organization and influence to successfully oppose regulatory obstacles).

Citizens United also significantly expands an incentive structure that was already highly conducive to actual and perceived political corruption. Fortune 100 companies reported revenues of $13.1 trillion during the last election cycle, as compared to approximately $745 million raised by Barack Obama ’91, and averages of $711,000 and $2.44 million respectively for House and Senate candidates. ExxonMobil alone reported profits of $85 billion across this same period.  With unlimited access to funds, these corporations would wield extraordinary power over the electoral prospects of our political class – the harms of which are both obvious (bad policies that favor narrow corporate agendas over the public interest) and subtle (reduced popular faith in democratic processes).

It may seem strange to argue that an expansion of free speech will produce this parade of horribles. Justice Kennedy frames the issue in absolute terms, referring constantly to the “chill” of corporate speech. How, then, to square a serious commitment to liberty with the troubling concerns raised by Citizens United? As Prof. Larry Tribe ’66 explained to the House Judiciary Committee, “it would be passing strange if the First Amendment, so central to our system of self-government, compelled us to choose between free speech and democratic integrity.” Properly understood, of course, it does no such thing.  To reach its conclusion, the Court piles one questionable assumption atop another – treating corporations as “associations of individuals,” granting those corporations full free speech rights, equating money and speech, and relegating to analytic irrelevance any concerns about the real-world effect of unmatched corporate wealth.

The combination of these errors leads to a preposterous result, forgetful of the point that the First Amendment protects democracy by safeguarding self-expression essential to political discourse.  Although “we the people” still reserve the right to speak, our relative ability to exercise that freedom in meaningful service to democratic self-governance has been badly compromised.  This result, moreover, is not required by the Constitution.  As explained by Justice Stevens, the unique advantages and characteristics of corporations – legal fictions that we endow with impressive benefits to facilitate economic growth – provide sufficient and long-recognized cause for denying them the same rights as natural persons.

Some commentators, mainly associated with the political right, tell us not to worry.  Citizens United, they insist, will do little to disturb the status quo. This optimistic outlook depends upon at least five doubtful assumptions: (1) legislatures will act effectively to limit its impact; (2) judicial elections will not be meaningfully affected; (3) patterns of corporate behavior will remain untouched by an expressive and doctrinal shift in legal culture and regulatory power; (4) courts will not construe Citizens United as the basis for further expansion of corporate rights; and (5) patterns of approximate party in donations to both political parties will persist undisturbed (the result of which would be greater corporate control across the partisan spectrum). This argument is, quite simply, wrong on its merits. And perpetuation of the status quo ante – with its perverse incentives and tendency toward corruption – would not be cause for reassurance.

At a recent American Constitution Society event, Jeff Clements and Prof. Lawrence Lessig offered wider perspective on these issues.  Clements emphasized the important role that First Amendment doctrine has played in recent conservative efforts at deregulation. This has sometimes taken the form of limitations on the regulation of commercial speech (i.e. cigarette advertisements targeting children), but, in a more pernicious form exemplified by Citizens United, has undermined popular control over elections in the name of corporate liberty.

Lessig agreed.  He observed “a Blade Runner-like moment in this opinion,” and gleefully acknowledged his excitement that computers, too, may soon find favor with Justices keen to endow rights upon non-human entities. But he focused squarely on corruption. Charging the Court with hypocrisy, he contrasted its apparent disregard for congressional efforts to secure electoral integrity with the concern for judicial purity that animated Caperton v. A.T. Massey Coal Co.  Noting that Congress is widely seen as the most corrupt branch of government, and that political action committees, lobbyists, and fundraising events already provide corporations with plenty of expression, Lessig worried that Citizens United will further prevent Congress from realizing the desires of its one true constituency – “we the people.”

So what can we do next?  Lessig and Clements both support a constitutional amendment to remedy the decision’s effecys.  Lessig ups by the ante by calling for a full constitutional convention (from which a more wide-ranging group of reforms might emerge). Both also urged Congress to quickly pass the Fair Elections Now Act, championed by Senators Richard Durbin and Arlen Specter. Other commentators have urged changes to corporation law, shareholder governance, disclaimer and disclosure requirements, anti-coordination rules, and the terms applied to government contractors.  At the state level, Citizens United has emboldened advocates of a shift from the election to appointment of judges. Many of these proposals strike broadly at a much larger pattern of corruption. Although few of these would truly fix the problem, they would certainly provide a badly-needed palliative.

All of which brings us to the main issue:  Does American democracy remain sufficiently energetic to face this challenge? That, I must admit, is an open question. It is remarkable that our president felt the need to spend part of his State of the Union address reassuring us that our political institutions are indeed capable of acting for the common good.  Not that Congress has done much in recent years to justify such faith, as evidenced most glaringly by its recent “debate” over health care legislation. The postmodern air of unreality that pervades much of contemporary political discourse, in which astroturf has replaced grassroots and partisan pundits occupy different realities, seems to leave little room for the kind of meaningful national conversation that might rest
ore integrity to our electoral process.

Such reform efforts are further complicated by Citizens United itself, which, unlike previous Supreme Court decisions that merely denied people rights, commits the further indecency of corrupting the very electoral process that might normally facilitate remedial action. In the future, any legislator involved in efforts to limit or modify corporate funding of elections will confront the multi-billion dollar megaphone of corporate general treasury funds.  Needless to say, the titans of corporate America might feel strongly about ensuring their recently secured ability to flood our marketplace of ideas with PR-friendly sound-bites.

Completing a process begun decades ago, five members of the Supreme Court have staked the future of America’s electoral system on their belief that we previously suffered for a lack of corporate influence. The First Amendment, as shown clearly by Justice Stevens, did not compel that result. Now the time has come for the public, and our elected representatives, to deal with its consequences. Any solution worthy of the name will undoubtedly involve extraordinary measures, including some kind of landmark legislation. “We the people” must therefore be brave.  Only if the American public stands firmly behind advocates of reform can we hope to reinvigorate the integrity of our treasured political institutions.

Joshua Matz is a 1L.

After Citizens United, is a different corporate influence our only hope?

BY PROF. FELLMETH

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With the recent Supreme Court holding in Citizens United, corporations and unions have first amendment protection to spend directly on political campaigns – at unprecedented levels. This is not the first ruling to protect speech rights for corporations – they also benefit from the Court’s “Noerr-Pennington” doctrine, which exempts them from antitrust laws when they combine to influence legislation.

But Jefferson and company might be quite surprised to learn that “originalists” citing the sanctity of their original intent would let loose upon our government hated British megacorporations of the colonial era, like the Hudson Bay Company, as a “person” with such rights to combine with other companies and win political influence.  We live in a world that is increasingly controlled by these horizontal organizations.  They, together with labor and professional alliances, dominate Washington and in state capitals.  They are euphemized as “stakeholders.”

These tribal structures are often vehicles that represent the lowest common denominator of the ethical sensibilities of their membership. But the problem is not quite related to the easy demonizing Wall Street or corporate predation; it is that it is the job of corporations to invest capital, and then to try to maximize return on that capital for the stockholders who provided it.  That neutral, understandable task means that they should and must protect that investment, and if society has created market flaws that allow external costs in the exhaustion of the earth’s resources, or health costs borne by others, this is not something they exist to correct.

The problem is that they are now legally able to prevent correction.  The “socialist” moniker thrown at supporters of government intervention applies where the state excessively owns and operates the means of production., when the check between private and public becomes lost. But what do you call the evisceration of that check in a system where the means of production own and operate the state? Is industrial or special interest socialism not even more antithetical to American notions of check and balance?   

The corporate-controlled fate awaiting us is not confined to liberal gnashing over global warming and environmental depredations. Conservatives have a stake also, as the current unfunded liability for social security, MediCare and the national debt exceeds a projected $55 trillion. The carrying charge in current dollars for the debt we are imposing on our children is over $20,000 per family per year.  

Into this evolving and deeply problematical world, Ralph Nader ’58 released his interesting new book, Only the Super-Rich Can Save Us! (Seven Stories Press). This novel combines real-world politik with an imaginative story—a fantasy of what could happen if 17 of the nation’s wealthiest and most influential persons combined to move the needle back toward the middle, accomplishing political reform and economic restructuring. Can such a group transform our long-term future and diffuse interests (the environment, our children and our legacy) by expanding their secondary, public relations “fig leaf” roles into actual, real-world influence?

The prospects would appear dim, but the idea has more to it than the frustration of a longtime consumer advocate. Nader has been largely marginalized by the media as some sort of eccentric, most of whom have forgotten that many of the mechanisms that protect modern consumers, from air bags to drug testing to government transparency – are directly traceable to his citizen advocacy.  But his point in the book is not vindication; it is to raise the possibility of an imaginative alternative.  And with the current elevation of corporate personae, Nader’s jujitsu idea may become the only alternative we have.

Much significant human progress occurs because someone rises above predictable self-advancement, taking on his own elite group. Though this rarely happens, there have been a few remarkable examples, such as Mikhail Gorbachev reversing the Soviet Union’s expected course, ending decades of bullying and antidemocratic domination. He did the unpredictable—he replaced defense bluster with disarmament and political domination with Glasnost.  And no, it was not Reagan or rising oil prices or a peacock-strutting United States that forced the Soviet Union’s course correction.  It was a leader turning against every expected instinct and pattern.  When such reversals of predictable self-interest occur, the consequences may be profound.  Indeed, the highest ethical act in the modern world may be to take on one’s own tribe.

In Nader’s fantasy, that is what these billionaires do.  They get together and find common ground in a legacy of competition, environmental health, political reform, and world progress. Could it happen?  What is interesting is that Nader personally knows most of the folks he writes about.  And his storyline purports to capture not only their political views, but also their personalities: Warren Buffet ordering cherry colas, the clever repartee of Sol Price, and the charisma of  Warren Beatty.  And the fact that these folks do, in fact, care about our planet.

Most of those named in his story currently spend fortunes on charity—on advancing values not far from those promoted by Nader.  But what they do in his fantasy is stop spending the vast proportion of it on direct services.  This is not to say that the billions spent on AIDS or malaria abatement have not yielded important results; the 2009 data from UNICEF shows real reductions in child mortality worldwide.  Some of Nader’s “characters”—all real persons—are largely responsible for this progress.  But their donations are not strongly leveraged, as Nader would propose.

What Nader essentially does is imagine a world where the super-rich seek more than malaria containment—where they seek leveraged change in public investment and decisions.  Interestingly, Citizens United may make that shift both more needed and more feasible legally.  For if corporations can independently campaign for political candidates protecting the value of their drilling rights and seek to burn carbon accumulated over four billion years as if it were a sparkler lit on the 4th of July, why cannot those who have wealth, lacking such a sunk-cost bias, do likewise?  Why can’t Soros and Buffet and Gates and the rest – with wealth freed from direct exploitation bias and able to factor in future costs – participate in countervailing political discourse?

Nader imagines that they end their dabbling and “feel good” dispensation of shots to wide-eyed children and do the work of changing ground rules so that political candidates are bought by the public, not by special interests, so that political campaigns have substance beyond ten-second sound bites and brainless namecalling, so that the many have access to the courts, so that agencies hear from many interests regularly, so that no business is too big to fail.

The fun of reading this book is in joining the author’s fantasy, but punctuating it with our own tactics – what we would do to correct the world’s deviant path had we the resources and visibility of these 17. The characters in this book seek structural and leveraged change—advocacy  for public budgets and laws and international agreements—that properly embody more than the exploitation of narrow self-interest.  Now that the U.S. Supreme Court has radically shifted ground and allowed (contrary to the judgment of the people’s democratic institutions) many billions of corporate and union money to directly influence elections, those interests with capital investment in current profitable enterprise – whether it be mining the seas, polluting the earth, or collecting medical benefits for power wheelchairs and Cialis on the backs of their grandchildren — wi
ll increasingly lock-in their self-protection and their imposed external burden on others.  Their free ride, notwithstanding future costs, will be further and irretrievably calcified into public law.

Although pathetic, it appears as if these 17 and some of their friends may indeed be the most realistic hope we have.

Robert Fellmeth ’70 was one of “Nader’s Raiders” and formerly worked on the Harvard Law Record. He is now is the Price Professor of Public Interest Law at the University of San Diego Law School.

Cambridge2Delhi: Is this what development smells like?

BY JESSICA CORSI

indiamess

As Delhi prepares for the 2010 Commonwealth games, the city is being completely transformed.  I traveled there in January to research the right to food for a UNDP report, two years after my first visit. This time, having come to see what had changed, I was greeted by streets lined with piles of bricks and mounds of dirt.  Women in tightly wrapped saris hoed the earth as their children played next to them, and mixed groups of men and women laid bricks in new walls.  I watched them daily as my auto-rickshaw  was crisscrossing the city to deliver me to meetings, and I wondered whether all this construction was really any good – if this was employment for the unemployed or if, when the games came, undesirable people would be swept out of sight.  I wanted to know whether life had really improved for those at the bottom of society.

I found that it hasn’t.  When I met with Dipa Sinha, one of the Commissioners monitoring the implementation of the still-open 2001 Supreme Court case on the right to food, she informed me that reports of starvation deaths have been higher in the past year than in any year since the opening of the case.  There is still no India-wide system to ensure that the Court’s orders are put into action, and relief for starving communities happens in a haphazard way, if at all. 

Sinha told me that she has seen people that they are monitoring die over the course of a year. In a typical case, a report will come that a marginalized community is starving and without any work. NGOs lobby the local and state governments to provide government guaranteed employment and subsidized grains. But these communities have often been cut off from social services due to discrimination against minorities, and when the requesting organization follows up with the authorities, none of the promised actions have been taken. By that time, a handful of severely hungry persons will have died. In these ignored communities there are always malnourished people who are on the brink of dying from starvation.

It is hard for me to take this information in, but it is what I have traveled here to learn: to search for signs of implementation of the right to food orders, and to evaluate the direction that the right to food is taking in India. And overall, I found that one of the many paradoxes of modern India is the juxtaposition of its rapid economic growth with the poverty that seems to have only intensified in the most vulnerable communities. 

Journalist David Rieff is writing a book on malnutrition and hunger.  I had breakfast with him at the India Habitat Center, an oasis of calm in the middle of Construction City.  I found myself disoriented as I ate huevos rancheros in an American style diner, with Abba playing in the background, all while we discussed the “why” of modern India’s paradox.

Were we still in Delhi? 

Rieff pointed out some of the unique aspects of Indian hunger. The gender question, for example, looms large in India. In other countries, Rieff has found, a household with food will have equally fed women and men, while in India a household with food might have a nourished man and a malnourished woman.  And then there are other key indicators of health that are missing.  He has traveled extensively in China, and he said he can drink the water there – not so in India. There is also no comparison with the level of open defecation found in India.  As he spoke I had a flashback to my 2008 trip to inner Uttar Pradesh, the first time I had seen so many people openly defecate.  There is no infrastructure to deliver basic services like sewage. 

Yet, I thought to myself, India has plans to test a new space shuttle, with an eye to making headway in the satellite industry.  This is part of the paradox: impressive development is taking place at the highest level. But the bottom rungs can’t subsist on plans for a spaceship.  Poverty at the bottom is still a life and death emergency.

David Rieff mentioned another aspect of India’s paradox: the economic boom has resulted in an even greater divide between the classes, with newly minted cities for the rich that allow the affluent to screen out the signs of poverty and, perhaps, most importantly, interactions with the poor. 

What I came to think of as the “car and driver set” is a good illustration of this phenomenon. Delhi smells. (As do Mumbai, Chennai, and other Indian cities.) It is extremely noisy. Instead of using turn signals or staying in one’s lane (when it is even marked) you instead make ample use of your car horn. All of this can give you an instant headache. But if you have a car and a driver, you are insulated from the smell, the noise, and the stress of the drive.  This phenomenon is not new, but the greater number of people catapulted into this “car and driver”?class, and the construction of new suburbs to house them, has left India more and more stratified.  Rieff pointed to Gurgaon, a suburb on the edge of Delhi, as an example of this new arrangement.

Coincidentally, I was having dinner there that very night. When I spoke to the friend I would be meeting he said, “I’m warning you, Gurgaon is my least favorite place in India.”  This was a strong statement from a person who had a deep affection for the country.

I arrived in the dark. “This isn’t so bad,” I said to him.  I had been bracing for Armageddon.

“You haven’t seen it in the day.  There’s no infrastructure.  The workers and their families that have come to build this place have no toilets, no water, no electricity.  In the daylight, the whole city smells like shit.  Of course, from inside the office buildings, you can’t smell it.  They even have their own electricity generators for when the power goes off.”

The power went off over dinner.  But then, right on cue, a generator kicked in and restored the lights.

On the drive back from Gurgaon to Delhi, my cab driver was in a talkative mood.  He wanted to share what he thought of India’s development.

“I’ve been in this business, driving only tourists, for 18 years,” he said. “And still, 18 years later, my family and I live in the same place.  Our standard of living hasn’t changed.  And why not? Because the wages for us stay the same, and the prices go up.  The prices of food, even the prices of vegetables, just keep going up.  They keep saying, India is growing, India is shining, this is a new India.  But a New India for who?  Who is getting this new India? I say, give first to the very poor.  There are people here who have less than 50 rupees [$1 USD] a day.  Give to them first.”

I had heard the same thing from all of my cab drivers.  “The price of sugar has more than doubled in the past month,” said one auto-rickshaw driver, as we drove we passed a truck draped in banners and filled with people chanting on bullhorns.  “It’s a political party,” the driver explained.  “They’re talking about the increase in food prices.”  We arrived at my destination, the Supreme Court Commissioner’s office, and she, too, immediately mentioned the food prices and the price of sugar.  The anecdotal reports of rising prices are backed by facts. But you can hear from people directly about how they’re being impacted, and I got a sense that people are heavily impacted.

Life goes on, and plenty of people are doing fine, even as others literally starve to death, and as almost half of India’s children remain malnourished to a point of permanently stunted growth.  Over one weekend, I sat with a friend on the beach in Chennai, and watched a festival being cleaned up.  “There are no trashcans,” she said, pointing to the area where the festival had taken place.  “This (the people cleaning) is the rag picker class.”  Instead of lining the festival area with bins, people were brought in the next day to clear everything away.  “Why not have bins? In order to generate jobs?”  “Ma
ybe,” she shrugged.  “But this caste of people has traditionally cleaned the waste.” 

My friend is a development economist. She shrugged because she knows that poverty in India—and in any place, but perhaps more so here—is complicated.  She took me to an estuary where brand new office buildings perch on the edge of the water.  “This is a very fragile ecosystem,” she said.  “It will probably be destroyed by the development.  But if you talk to people, it seems like this is what they want.  They want the new air conditioned shopping malls.” 

But these are the people in the cities, who can afford to go into these malls. In the rural areas, they want any employment they can find, and they want it now. The cities are mushrooming with investment, but more than two thirds of the population’s income still derives from agriculture. As the government of India focuses on the high tech side of development, the farmers are being left behind.  

In my last interview before I flew home, I asked, “What remains to be done? What are the next steps?” 

“Research,” responded my interviewee, without hesitation.  “We need more in depth studies as to why the programmes that we have, the Supreme Court orders that we have, the laws that we have, are working or not working.” 

But what will come first — more research, or an expanded space program?  The buildings to house foreign companies in the growing tax-free zones, or the infrastructure to provide basic programs for the people who construct the buildings?  If things stay on their present course, development as usual will continue to have a negative impact on the people at the economic margins — which presently seems to be the majority of the Indian population. 

I spent my last weekend in India in Mumbai.  “Have you been to Delhi lately?” I asked a friend.  “It’s a construction site.” 

“I heard that,” he responded, “I wonder what it will look like in time for the games.”  So do I.  I wonder what it will all look like in the near future, and whether people like my taxi drivers and the women in saris digging on the side of the road will experience change.   

This version of the article was modified slightly from the version that appeared in the print edition.

One year after Gaza War, causes of the conflict remain unaddressed

BY NIMER SULTANY

gazasign

One year after the Israeli onslaught on Gaza, the territory is still strangled by a comprehensive, tightening siege. And the consequences of last winter’s war, which ran from December 27th to January 18th, have been few. Despite the horrific outcomes and images of civilian death and destruction caused by Israel, war criminals are still at large, and numerous reports by well-known human rights organizations and independent international bodies have done little to effect accountability and freedom.

Egypt has started to build a seven-mile-long underground steel wall with the assistance of the United States Army Corps of Engineers. Israel has further defied international norms by dismissing the UN’s Goldstone Report on abuses of humanitarian law during the conflict offhand. It refuses to conduct an independent inquiry into the Report’s findings. Israel has also been trying to prevent foreign judicial inquiries into such crimes.  

The defenders of Israel’s strategy continue to employ the same mundane arguments they have used in the past. These arguments divert the discussion from substance to procedure by claiming bias and selectivity on the part of international bodies, or by using ad hominem attacks. This time, however, the attacks won’t work as they have in the past.

The internationally-revered jurist and self-proclaimed Zionist Judge Richard Goldstone headed the United Nations fact finding mission on the Gaza onslaught, which produced the Report that bears his name. He insisted that the mandate of his committee be expanded to include crimes committed by both Israelis and Palestinians. The Report is not only explicit in its criticisms of both Israel and Hamas, it even assumes that Israel acted in self-defense. Considering this, it is difficult to believe that the Israeli government’s allegations of bias and its reasons for refusing to engage with the Report are sincere.

But critics of the Goldstone Report trivialize the gravity of the war crimes it documents by claiming that civilian deaths and destruction of infrastructure were not a matter of policy, but of the misconduct of a minority of soldiers. This explanation is dubious for several reasons. First, while one soldier who stole a credit card from a Palestinian home was prosecuted, no soldiers were punished for killing Palestinians. The Israeli military has failed to publicly hold these so-called “rogue soldiers” accountable. Second, the large numbers of casualties, the enormous and wanton destruction of property and the targeting of civilian infrastructure by the Israeli army in the 2006 war on Lebanon and the onslaught on Gaza indicate that these attacks are deliberate. As the Report mentions, many statements by Israeli officials support this conclusion. The Israelis have even codenamed their strategy: the Dahiya Doctrine.

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Yet legitimate complaints that Israeli aggression against Gaza has been disproportionate or is counter-productive are not effective rebuttals to the Israeli government’s self-justifications. In fact, these lines of argument presuppose that Israel was, at least in part, justified in its “defensive security operation”. When focused on these objections, the dispute revolves around the numbers of Palestinian civilians Israel would have been “justified” in killing.

Israel was not justified in its aggression for more profound reasons than these arguments reveal, regardless of the horrendous outcome of the onslaught. (Around 1400 Palestinians killed were and 5320 wounded and thousands of houses destroyed or damaged.) Israel is not a peace-seeking state acting in self-defense and Hamas is not an irrational fundamentalist or terrorist movement that wants to annihilate Israel. As I will argue below, both perceptions are, at base, crucially misleading.

Israel has proven throughout its history that it has an expansionist plan to control as much Arab land as possible. Israel never acknowledged its status as an occupier and thus refused to apply the Geneva Conventions, claiming that the Palestinian territories are contested areas. It even refers to Palestinian territories by their Biblical names: Judea and Samaria. Israeli settlements (121, plus those in East Jerusalem) and their “natural growth” (479,000 settlers) aim at creating facts on the ground that enable Israel to control as much land as possible. Credible estimates suggest Israel has invested $100 billion in developing Jewish-only infrastructure inside the West Bank. A state that intends a temporary occupation would hardly make such investments.

As historian Avi Shlaim demonstrated in his book The Iron Wall, Israeli governments have worked under a strategy according to which time is on the Zionists’ side: the natives will be overwhelmed by the power of the settlers, ultimately internalizing their subjugation and capitulating to the new reality of power. This means there is no need for peace agreements, and  explains Israel’s rejection of numerous peace deals through its history. Israel’s refusal to engage with the Arab peace proposal emerging from the Beirut summit in 2002 was only one of the most recent examples of this policy.

The history of Palestine, then, is the story of the escalation of Israeli power. The International Court of Justice recognized this in its July 2004 ruling on the construction of Israel’s “separation wall”. The ICJ considered the wall part of an Israeli policy to alter the demographic composition of the Occupied Territories, a policy tantamount to a de facto annexation. The ICJ emphasized the detrimental effects of these policies on the right of the Palestinian people to self-determination. Israeli policies make the prospects for the realization of this right unrealistic.

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Even the withdrawal from Gaza in 2005, the so-called disengagement plan, sought to entrench the colonization of the West Bank. Then Prime Minister Ariel Sharon’s senior adviser, Dov Weisglass, described the withdrawal from Gaza, in an interview with Haaretz in August 2004, as “the freezing of the political process”:  “And when you freeze that process, you prevent the establishment of a Palestinian state and you prevent a discussion about the refugees, the borders and Jerusalem. Effectively, this whole package that is called the Palestinian state… has been removed from our agenda indefinitely. And all this with [President Bush’s] authority and permission… and the ratification of both houses of Congress.”

Thus, describing Sharon’s withdrawal from Gaza as a prelude to further withdrawals and a peace agreement is patently false.

Note that the withdrawal from Gaza did not mean that Israel relinquished control of every aspect of life in the territory. A report by the Israeli organization Gisha listed the administrative aspects which Israel continues to control there: not only its territorial waters, airspace, border crossings, fuel, and electricity, but also Palestinians’ population registry (which determine who is a “resident” of Gaza), and even taxes and the transfer of tax revenues. Through these policies, notes Sara Roy, Israel continues to exploit and “de-develop” the Gazan economy as it has done for decades.

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Ehud Olmert and Tzipi Livni have repeatedly said in recent years that they believe in the right of the Jewish people to all the “Land of Israel”, but they understand the need for “compromise.” Ironically, Hamas’s statements practically mirror these: it believes in the right of the Palestinian people to all the land of Palestine, but is willing to offer long-term cease-fire agreements. The fact that Hamas is willing to offer cease-fire agreements undermines the argument that it is committed to the destruction of Israel. But Hamas’s proposals have been dismissed by successive Israeli governments from Yitzhak Rabin on.

The fact that Hamas refuses to “recognize Israel” is also unsurprising. For one, a focus on Hamas’s charter, which states this policy, is a reductionist view, concentrating on an anachronistic document, which ignores the evolution of Hamas’s think
ing and politics since drafting the charter. Khaled Hroub, the author of a book on Hamas, has refuted such simplistic claims by discussing more recent documents produced by Hamas.

More importantly, what Israel is demanding is recognition of its ideological character as a Jewish state. In other words, Hamas is not asked to recognize Israel as a de facto entity; Israel already has de facto recognition by virtue of its tanks, warplanes and bulldozers. Rather, Hamas is asked to recognize the current, ethnically-exclusivist ideological character of Israel and the legitimacy of the Zionist project that displaced the Palestinians. Hamas is asked to renounce the history of the Palestinian people as a precondition for negotiations. 

From a Palestinian perspective, recognizing Israel as a Jewish state means both rejecting the Palestinian right to return and perpetuating the subordination of the Palestinian citizens of Israel. Rejecting the right to return before the negotiations even start aborts such negotiations or renders them meaningless. Thus, the fact that Hamas rejected Oslo and refuses to recognize the exclusive Jewishness of Israel has little to do with religious fundamentalism.

In any event, it’s ironic that the leaders of Egypt, Jordan and Saudi Arabia are corrupt dictators, but they are seen as “moderates”. Hamas, on the other hand, has not been shown to be corrupt, was elected democratically and has never attacked any targets outside Palestine and Israel. Nonetheless, it is considered “extremist.”  The criterion for “extremism” is not disregard for human rights, otherwise the states of Egypt and Saudi Arabia deserve the same label. Rather, the criterion is the rejection of Israeli dictates.

At the same time, Israel and the United States have also fragmented Palestinian politics by actively encouraging so-called “moderates” and isolating so-called “extremists,” aborting attempts to form a unity government. As Vanity Fair reported in April 2008, Hamas was reacting to a staged coup d’état when it took control of Gaza. The “moderates” in Ramallah refused Hamas’ call for a unity government under pressure from the previous Bush administration and Israel.

In fact, ever since Hamas came to power in January 2006, through democratic elections, Israel had boycotted its government, withheld Palestinian tax money, imprisoned and assassinated dozens of Hamas’ parliament and cabinet members, imposed a tight blockade that resulted in a humanitarian crisis, and made the lives of 1.5 million Palestinians (52% of whom are children) living in what is effectively an open-air jail, making them totally dependent on Israeli political demagogues and security technocrats. Finally, Israel violated the June 2008 cease fire by attacking a tunnel under Gaza’s border in November 2008, killing Hamas members in a prelude to its large-scale onslaught on Gaza that was long in the making.

Both the 2006 Lebanon war and the Gaza onslaught should be understood in this context. Israel wanted to make any opposition and resistance to its hegemony costly in terms of civilian life and thereby to strengthen the so-called “moderate” camp. According to this logic, only when the Arabs and Palestinians recognize the impossibility of defeating Israel will they accept the fait accompli designed by Israel. Thus, Israel did not attack Gaza to end Hamas’ rocket attacks. This could have been achieved by observing the cease-fire agreement and lifting the siege that is strangling Gaza. Rather, it aimed at crushing any resistance to its domination.

Those who are busy justifying Israeli actions as if Israel were a well-meaning occupier want us to focus on Palestinian violence instead of the siege; on the symptoms (resistance) rather than the root cause of the conflict (the occupation), and on one Israeli soldier captured by Palestinians rather than the thousands of Palestinian prisoners. By doing so, they legitimate the oppressive actions of the longest military occupation since World War II, an occupation that even decides, as Haaretz reported in November 2009, when and whether Palestinians can eat pumpkin, chocolate or pasta.

Martin Luther King, Jr. wrote in his letter from Birmingham: “I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is… the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: ‘I agree with you in the goal you seek, but I cannot agree with your methods of direct action’; who paternalistically believes he can set the timetable for someone else’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a ‘more convenient season’.”

Similarly, Palestinians should not be asked to wait for their freedom. Instead, all those who hold equality, freedom and justice dearly should support their struggle and help them obtain it.

Nimer Sultany is an S.J.D. candidate and a Palestinian citizen of Israel.