Saturday, March 06, 2010

Opposing Genocide? Is There Nothing Jews Won't Resort To?

A London-based Arabic newspaper is alleging that -- quelle surprise -- the Jewish lobby is behind the recent vote by a House committee to recognize the Armenian genocide by the Turks. The claim is that pro-Israel groups, which had previously backed Turkey on the issue, switched in retaliation for Turkey's vitriolic condemnation of Israel in the wake of Cast Lead.

As someone who was extremely critical of the ambivalence of Jewish organizations on this issue, I still have to call BS. First, there is virtually no evidence that Jewish organizations are the causal players here. Second, to the extent that there is a link between Turkey's relationship with Israel and America's decisions regarding the Armenian genocide, it's one that Turkey created when it threatened to hold hostage its relationship with Israel unless American Jews backed off on the issue. There's a difference between Jews nefariously embarrassing Turkey for being bold truthsayers regarding Gaza, and Jews taking the clearly correct and moral stance that they were hitherto deterred from due to Turkey's (now expended) threats regarding its diplomatic stances toward Israel.

That being said, my position remains the same as ever. Jewish organizations, same as everyone else, have an obligation to be truth-tellers on this issue. Aside from the necessity of doing justice to the victims, it does not bode well for the Jewish community if the historical fact of genocide is considered to be a legitimate political football.

Justice Thomas and Constitutionalism

Via PrawfsBlawg, I've come across a fascinating conference hosted by the N.Y.U. Journal of Law and Liberty on the "unknown Justice" -- that is, Justice Thomas. There are several good articles in the symposium, including Nicle Garnett's contribution regarding Justice Thomas' perspective on the disadvantaged and marginalized. But I want to focus on Professor Stephen F. Smith's contribution: Clarence X? The Black Nationalist Behind Justice Thomas’s Constitutionalism.

The thesis may sound familiar, but neither he nor I are the first to come up with it, and Professor Smith does cite some of the other scholars making the same point, like Mark Tushnet and Angela Onwuachi-Willig. Nonetheless, Parts I and II, making this argument, is a perfectly welcome contribution to the literature.

Part III tries to reconcile this outlook with Justice Thomas as a strict "constitutionalist" (originalist), and here, unsurprisingly, the wheels begin to fall off the wagon. Mostly, we get a reprise of Clarence Thomas' embarrassingly weak "originalist" justification for his Parents Involved opinion. There's the citation to Plessy, which boils down to "any sufficiently old source is a valid 'originalist' warrant, even if it postdates ratification of the relevant amendment by a quarter-century". Then we have the enlistment of Thurgood Marshall as a paladin of constitutional color-blindness thanks to his Brown advocacy, despite the fact that his opinion in Bakke clearly indicates (at the very least) a change in outlook. Finally, and most tragically, there is the tortured attempts to show how color-conscious acts during Reconstruction don't actually conflict with a constitutional color-blindness principle. These aren't that persuasive to begin with, but what's worse is that they don't actually prove anything, except that the two apparently believe that the best offense is a mediocre defense. In a system of government where we presume the state has residual power to act, and the federal government is explicitly given expansive powers regarding racial remediation, a principled advocate needs to provide affirmative evidence showing that government was meant to be restricted from acting in this manner. Simply showing that the way the government acted would have been compatible with a theoretical restriction means jack without some evidence that the framers intended for the restriction to, you know, exist. Absent that, the presumption ought to be deference to the legislature -- a stance which I think Justice Thomas takes on essentially every other issue.

Smith also adds a few new arguments of his own, but they fare no better. Against all evidence, he throws out a stare decisis argument that the color-blind ethos is "settled law" and should not be disturbed this late in the game, despite the fact that obviously the principle has always been and remains heavily contested, as evidenced by the fractured courts in racial preference cases ranging from Bakke to Grutter to Parents Involved (particularly for someone like Justice Thomas, who is perhaps least sympathetic to stare decisis of any sitting Justice, this is spectacularly unpersuasive). Finally, he accuses Justice Thomas' liberal critics of hypocrisy: it is permissible for someone like Justice Marshall to impose his policy preferences into law, but not Justice Thomas. But that misses the point entirely: I have no problem with Justice Thomas articulating his constitutional vision, and I think he does it quite eloquently. I object to the notion that it exists on some superior legalistic plane, whereby his is "constitutionalist" and mine is just "policy". Once the playing field is leveled, I'm happy to pit my vision against his.

The War on Refusing Drugs

A middle school girl is suspended by her school after giving back the pills her friend gave her.
The girl did not bring the prescription drug to her Jeffersonville, IN school, nor did she take it, but she admits that she touched it and in Greater Clark County Schools that is drug possession.

Rachael Greer said it happened on Feb. 23 during fifth period gym class at River Valley Middle School when a girl walked into the locker room with a bag of pills.

"She was talking to another girl and me about them and she put one in my hand and I was like, ‘I don't want this,' so I put it back in the bag and I went to gym class," said Rachael.

The pills were the prescription ADHD drug, Adderall. Patty Greer, Rachael's mother, said she and her husband are proud of their daughter for turning down drugs, just like she's been taught for years by DARE (Drug Abuse Resistance Education) instructors at school.
According to Greater Clark County Schools district policy, even a touch equals drug possession and a one week suspension.

The district says as far as it's concern, that counts as possession. The article claims "District officials say if they're not strict about drug policies no one will take them seriously." Oh, I don't know if they have to worry about that. And if I'm the judge in the inevitable lawsuit, my first question for the district's attorney is "what if the girl just had a pill thrown at her? What if it was tossed at her and she reflexively caught it and dropped it?"

Kind of extreme examples -- but then, under normal circumstances so is the case of the girl who is handed the pill and immediately gave it back. What we have is a situation where the school district officials clearly are less intelligent than the students they're overseeing.

Friday, March 05, 2010

On Another Armenia Resolution

The House Foreign Affairs Committee narrowly passed a resolution declaring the 1915 mass killings of Armenians by the Ottoman Empire (now Turkey) a genocide. The Turks are, as is their wont, apoplectic.

My views on this issue are well-known and not particularly subtle. It is exceedingly important to recognize genocide as genocide. This is not simply a case of historical semantics -- the way that mass killings are remembered by history is a critical factor in deterring or enabling future perpetrators for enacting similar atrocities.

But the other thing I've been thinking about is this: while Turkey has threatened various retaliatory measures against the US whenever we inch towards official recognition of the Armenian genocide, there is a limit to how long they can do so. Turkey may withdraw overflight permission temporarily in protest, but do we really expect that in 3, 5, or 10 years, they'll still be denying us aid and pitching diplomatic fits over a House resolution passed years earlier? Yes, the prospect of losing some Turkish support in the region is intimidating. But once the resolution is out the door, the gains are locked in, while the losses are temporary and can be ridden out.

So you know what I say? Pass the damn bill.

Boycotts, Divestments, and Sanctions: A Global History

An excellent Ha'aretz article detailing the history of boycott movements worldwide, including Mussolini's Italy, Cuba, Iran, Israel, Palestine, and South Africa. By and large, the verdict seems to be an outsized faith in the ability of boycotts to contribute to positive change based on the single example of South Africa. In the context of Italy, Cuba, Iran, North Korea, and for that matter Israel (which, lest we forget, is being faced with a comprehensive Arab boycott), boycott policies have ranged from simply ineffective to outright counterproductive.

Incidentally, this I think is one of the reasons why I'm increasingly skeptical of the boycott of Gaza. Part of the goal is to deprive the Hamas regime of materials it can use to enact terrorist policies, and the boycott probably is reasonably good at that. But part of the justification is to try and signal to the local Palestinians that they need to change their government and policies, and I'm very skeptical it will have that effect, when typically such boycott policies tend to re-entrench extremist elements and allow them to blame all their problems on the boycotting outsiders. (There's also a punitive rationale for boycotts, but while I believe moral wrongdoing is a necessary condition for justifying a boycott, I don't believe it is by itself sufficient). More importantly, the efficacy of a policy of boycott and isolation becomes effectively unfalsifiable: If it results in positive change by Hamas, then great, it succeeds (though that raises the question of where the line is between "it's working, keep up the pressure" and "it worked, time to reengage"), but if it cause retrenchment, instead of signaling the policy is a failure, it tends to be taken as an even stronger sign that we can't talk with such a radical regime. It's difficult for me to say a way out of that muck.

....To Be Fair, We Have Our Equivalents

I posted earlier on the dominance of the absolute crazies of the GOP in states like Maryland, where the effective one-party nature of the state leaves the opposition as an effective rump party whose extreme flanks carry outsized influence. You want a Democratic example? How about Kesha Rogers, a LaRouchite Democrat who just won the Democratic primary in the blood red Texas 22nd district, on a platform of impeaching President Obama (and fighting the British Empire. No, really).

Thursday, March 04, 2010

Panel Announcement: Social Change in Unexpected Ways

I am pleased to announce the 2010 Law & Society Conference, being held this May in Chicago, will be featuring a panel on "Social Change in Unexpected Ways". The panel will be chaired by Prof. Gerald Rosenberg (who also will serve as discussant), and is tentatively scheduled for Friday, May 28th between 10:15 - 12:00. The four papers being presented are:
"Sticky Slopes", David Schraub (University of Chicago -- Law);

"From a Critique of Sovereignty to a Politics of Solicitude: Narrative Identity and the Alternatives to Legal and Political Recognition", Matthew B. Cole (Duke University -- Political Science);

"College Debate: A Preliminary Study on Gender Disparity", Marisa Maleck (University of Chicago -- Law); and

"Accommodation and Condemnation: Teen Pregnancy and Education Equality", Jillian Rodde (University of Chicago -- Social Science/Anthropology).

If anybody is in the neighborhood that week, I know all of us would be thrilled be your attendance.

Wednesday, March 03, 2010

A Lesser Evil Exception to IHL?

Gabriella Blum, Assistant Professor of Law at Harvard, has an interesting new article in the Yale Journal of International Law (short form here) explore whether there should be a "lesser evil" doctrine in International Humanitarian Law (basically, the law protecting civilians in armed conflict). A lesser evil defense would be available when a facial violation of international humanitarian actually results in the preservation of enemy civilian lives.
My interest in this puzzle was sparked by the Israeli Supreme Court’s decision to strike down the “Early Warning Procedure” employed by the Israel Defense Forces (IDF) in the West Bank. Under the Procedure, the IDF would approach a neighbor of a suspected Palestinian militant and request the neighbor to urge the suspect to surrender quietly to the security forces. If the suspect refused, the neighbor would then attempt to clear the residence from its other inhabitants. The stated goal of the Procedure was to reduce potential casualties, both among IDF and local civilians, in case the arrest turned violent. Despite some evidence that the Procedure was effective in reducing civilian casualties, the Court ruled that it violated strict prohibitions on the reliance on local civilians by an Occupying Power for security operations, and was therefore unlawful.

The prohibition cited by the Israeli court is but one instance of IHL’s absolutist stance. Others include the prohibitions on mercy killings, the assassination of rogue leaders, the use of non-lethal chemical weapons, or the intentional killing of any civilian – even where such actions are taken with the attempt to minimize humanitarian harm. The claim that certain prohibited acts might actually lead to the saving of innocent lives, even many thousands of lives, is categorically rejected by the laws of war. Put bluntly, in many cases IHL demands an excessive sacrifice of lives for preserving the integrity of the law.

What is particularly odd is that IHL does take into account military necessity in crafting its rules. But it has no comparable procedure for "humanitarian necessity". In other words, international humanitarian law can be bent for military ends, but not humanitarian ends.

My first thought on reading this thesis was skepticism, simply because everyone argues, or could argue, that their military actions ultimately saved lives (by bringing the war to a close sooner, for instance). Professor Blum, though, anticipates this objection and crafts her definitions accordingly.
The blueprint definition I ultimately suggest is designed to work in a way that would allow us to distinguish the “right” case from all the wrong ones. It is as follows:
A person shall not be criminally responsible if, at the time of that person’s conduct: . . . The conduct which is alleged to constitute a crime was designed to minimize harm to individuals other than the defendant’s compatriots, the person could reasonably expect that his action would be effective as the direct cause of minimizing the harm, and there were no less harmful alternatives under the circumstances to produce a similar humanitarian outcome.

Three elements of this definition are worth emphasizing (and all elements are open to further debate and examination). The first is that to benefit from a humanitarian necessity justification, the actor must show that the violation of the law was designed to benefit not – or not only – his own fellow soldiers or civilians, but enemy nationals. The rationale behind this condition is that IHL was designed to curb the aggressive tendencies of parties in war and offer protections to the most vulnerable. It is therefore preoccupied primarily with how parties treat their enemies, not how they treat their own people. For the humanitarian necessity justification to be compatible with the project of IHL, it must follow a similar logic. Consequently, the paradigmatic case of interrogational torture, most commonly used to avert an attack on one’s own people, cannot be justified on the basis of a humanitarian necessity.

A second, straightforward element of the justification is that the actor used the least egregious means possible in choosing between two evils. Following this condition, whatever one’s judgment is of the atomic bombing of Hiroshima, the bombing of Nagasaki – just three days after Hiroshima and without testing alternative means of securing Japanese surrender – could not be justified under a humanitarian necessity.

A third crucial element is causation: The justification depends on a direct causal relation between the breach of law and the aversion of harm. This condition follows from the internal logic of IHL, which does not allow for unbounded cruelty in the name of bringing wars closer to end.

Anyway, it's a provocative and interesting idea. The folks at OpJur have this article as part of their online symposium, with a response from Matthew Waxman and reply from Professor Blum. Check it out.

Tuesday, March 02, 2010

Carrying On

I pretty much had the same thoughts regarding the "scandal" of the Canadian woman's ice hockey team's celebration of the Olympic Gold. Having attended college, it is pretty difficult for me to get incensed about underaged drinking (not that I'd be inclined to). And beyond that, it seems like a large part of the outrage stems from a real, if sub silentio, sense that these women aren't behaving like proper ladies. One sees champagne flying at all sorts of other championship proceedings without comment. It baffles me that this is being seen as somehow exceptional.

Throw Down The Middle -- It's a Gap!

The old mascot of the University of Mississippi was one "Colonel Reb", a reference to the old Confederate Army. The university recently provisionally abandoned the mascot, and a new search is underway. One originally parodic suggestion that's been gaining real steam is, amazingly enough, Admiral Ackbar, leader of the Rebel Alliance from Star Wars. Like Ilya Somin, I heartily approve.

Also, I thought long and hard about this title. I hope it works.

The Fun House

Adam Serwer always has a sharp eye, but I particularly liked this post on the evolution of racist tropes that one today sees only in the South (and even there more and more rarely). Serwer's point is that though the language and framing has shifted, the underlying logic remains essentially the same nationwide, and he does an excellent job drawing the parallels between the Southern storekeeper saying of a local Black pol: "If [he] wasn't black, you'd think he was white," and someone like Chris Matthews saying how he "forgot the President was Black" when he spoke in language that didn't evoke some mythological image of the crazed avenger of racial wrongs and maladies.

H/T: PostBourgie.

Monday, March 01, 2010

The Revisionism Starts Now

The defense arguments made by Radovan Karadžić in his war crimes tribunal for genocide and ethnic cleansing, in which he argues that he was only responding defensively to Muslim aggression, leads Matt Yglesias to
wonder sometimes if Karadzic isn’t a man who was ahead of his time. If the Bosnian civil war had come around 10 years later, couldn’t you imagine him getting a sympathetic hearing from guys like Daniel Pipes and Andy McCarthy and Geert Wilders and Bibi Netanyahu and Frank Gaffney who’d be open to the argument that Karadzic & Milosevic were basically just somewhat unsavory allies in the Balkan front of the war on Islamofascism?

Nothing ahead about it. At least with regard to Slobodan Milosevic, this reassessment has already occurred amongst some right-wing figures, who wondered back in 2006 if "Milosevic ends up being remembered by history as a hero and a kind of prophet".

Sunday, February 28, 2010

...But Not Here

Israel's ambassador to Spain lodged a formal complaint with the Spanish government after receiving postcards from schoolchildren, aged between 5 and 6, with such messages as "Jews kill for money," "Evacuate the country for Palestinians," and "Go to someplace where someone will be willing to accept you." The last of these is, of course, particularly ironic given that Spain only repealed its edict of expulsion against the Jewish community in 1968.

The messages apparently stem from an organization that is not formally part of the Spanish educational system, but has been given permission to work with students by the Spanish government.

Pay it Forward

I was running to catch the bus today, but I wasn't going to make it. Until a person ahead of me on the sidewalk, walking the other way, flagged the bus down to keep it from rolling away.

Then, on the bus, I saw someone drop their glove as he left. I yelled at him to get his attention, and then pointed down so he saw the missing article.

It was a nice day.