Law and politics worldwide, etc. (That description should stick for a while)
The San Francisco Chronicle writes:Bush takes hard line on Iraqi rebuild contracts
The fact that German companies don't think that Bush has taken a hard line here (see below) convinces me that the folks at SFC have been sold a bill of goods. Aside from the now desperate attempts to use the policy to bolster the moral resoluteness line, the only effect of this policy is to give other countries something to complain about. Great.
Do I need to say this? On the one hand, according to the President, the "American taxpayers" are supposed to want tax dollars to go to companies based in the U.S. and allied countries.
On the other hand, companies from foreign countries can get in on the action through subcontracting anyway. See this story on Netzeitung about how German companies are not particularly worried about the issue because they are expecting to get into Iraq through the subcontracting process. See also here ("Despite Boycott, German Companies Are Counting on Contracts.") Deutsche Welle is carrying the same story. How are the "American taxpayers" supposed to feel about that?
So President Bush is going to get criticized by the mythical "American taxpayer" because of the subcontracting process anyway. The President apparently is concerned about this issue, but he hasn't avoided it with the new policy; American tax dollars are still going to go to "foreign companies."
Aside from revealing a lack of coordination among the administration (coordination is the President's job, folks!), the boycott ticks off countries from whom we freely acknowledge we need help without actually avoiding the problem that the President says the policy is supposed to accomplish. Seems to me like symbolic politics more than anything else. Worse, it's symbolic politics executed poorly, with respect to the very issue (war in Iraq) that the administration has made into one of its defining moments. Oh well.
I'm also a little worried about the extent to which this row obscures the fact that companies are not easily identified with a particular company anyway. Let's just say that Daimler-Chrysler had something it could bid on. Would they count?
The administration has managed to pursue a divisive and essentially contentless policy here. A neat trick. Unfortunate, though.
See also Jim at OTB here and here, and Josh at Oxblog, for administration allies who are puzzled by the policy. See also Kevin Drum.
MORE: The non-reaction of German companies also pretty much shoots down Jonah Goldberg's throw-me-a-lifeline "Jim Baker leverage" theory:Isn't it possible that the stiffing of Germany, France and Russia is simply prelude to Jim Baker's Iraqi debt-cancellation world tour? It just seems so obvious to me now. He wanted some leverage and to send these countries a signal that we could play hardball before he left. It's fine with me as a policy or as a negotiating ploy.
What are we going to offer foreign countries? Money's not on the table; Germany's companies know this already.
Again, oh well.
MORE: Above, I should have said: "Money's not not on the table; German companies know this already."
If anyone has a copy of the opinion handed down by the International Criminal Tribunal for Rwanda, I'd love to see it.
I gather that everyone agrees that the individuals involved -- Ferdinand Nahimana, Hassan Ngeze, and Jean-Bosco Barayagwiza -- should be punished for their role in the genocide. They helped to coordinate the killings and they incited horrific violence. Joel Simon reports in Slate, however, that Ngeze's lawyer, John Floyd, has raised concerns about the reasoning behind the opinion. In addition, Simon writes:While press-freedom advocates do not dispute the court's verdict, some question the tribunal's legal reasoning, which could provide cover to repressive governments around the world that routinely suppress criticism and dissent by using overly broad restrictions on hate speech and incitement. Parts of the decision could also provide ammunition to U.S. critics of the newly created International Criminal Court in The Hague who believe that international law is a threat to U.S. legal standards.
(Via Eugene Volokh.)
For some background on the case, see Dina Temple-Raston's article here. See also here. Full warning: my comments here are not profound; I'm just trying to work out some thoughts on legal concepts in general. It seems to me that at least two things are critical about this trial: first of all, it is retrospective, looking backward to punish individuals who can reasonably be said to have had a causal role in the genocide. There is a basic tension between forward-looking rules and backward-looking proceedings, and the gravity of the case helps to highlight that tension. In addition, the social context matters a lot, as Temple-Raston's piece helps to show. It's very hard to cover widely divergent social contexts with general rules; international tribunals might suffer from a particular difficulty in this regard, to the extent that rules that may be appropriate in the context of Rwandan genocide (hate speech is part of the causal nexus and must be punished) are not appropriate in the context of clashes between European governments employing hate speech standards and the U.S. music industry (to take one of Simon's admittedly "remote" hypotheticals). This does not mean, however, that the "concept" of hate speech is defective, as such -- surely it is useful for articulating deeply felt intuitions about what was going on in Rwanda in the early 1990s.
From John Fund's Opinion Journal piece criticizing O'Connor:Back in 1992, Judge Silberman did praise one justice who had proved impervious to such influences. "Clarence Thomas has, for some time, resolutely refused to read all but a couple of newspapers," Mr. Silberman declared. "There will be, I would bet my shirt, no journalistic hole bored in his ozone level." More than a decade later, Justice Thomas has indeed remained true to his principles.
I generally don't agree with Thomas, but I also generally don't agree with the Thomas-bashers. I find it hard to believe that anyone would think that refusing to read certain newspapers is a virtue in anyone, much less a judge. Or a President, for that matter. Unless you think it's virtuous to lock yourself up in your own "echo chamber." Oh well.
My friend Parley writes to hint, I think, that he has put this on his Christmas list. I'm holding out for the voodoo doll version. . .
For the post that was here for about thirty seconds, scroll down to the update here. Nothing thrilling, though; I just posted it twice by accident.
Folks are already complaining that the Supreme Court has eviscerated the First Amendment with its BCRA ruling. I disagree. A comparative perspective can help here.
In the U.K., restrictions on party speech are quite severe: parties, candidates and interest groups are simply banned from buying political advertising on TV and the radio. These bans relieve some of the pressure on the parties and other groups to raise enormous (U.S.-style) sums of cash to finance their political campaigns.
It's not clear that severe restrictions on political advertising in the U.K. have destroyed the free speech values that on this side of the Atlantic are articulated in First Amendment standards. And unless you want to say that folks in the U.K. don't know how to do democracy (an odd claim if there ever was one), it seems to me that their example should force you to consider what the point of the First Amendment is in the first place, and what sorts of contemporary campaign regulations might be found to be consistent with the underlying concerns.
From page 174 of the Fifth Report of the Committee on Standards in Public Life, The Funding of Political Parties in the United Kingdom (1998), available here:
13.5 Almost everyone who speaks or writes about the role of money in British election campaigns comments favourably on two of its many aspects. The first is the fact that political parties, candidates and interest groups are not permitted to advertise politically on television and radio; they cannot buy air-time to be used for political purposes. The second is that, nevertheless, the broadcasters allocate free air-time to the parties so that they are in a position to present their own case to the public in their own way. The Conservative Party, in its evidence to this Committee, commented: It is an oddity of our system, albeit a welcome one, that paid-for political advertising on television and radio is banned.. . .
13.7 Preventing the political parties and other politically motivated organisations from buying time on television and radio has the effect of restricting the total amount of money they can spend and also, thereby, of limiting the amounts of money they have to raise. These effects are almost universally agreed to be beneficial. Election campaigns in the United Kingdom are cheaper than in many other countries. During election campaigns, television viewers and radio listeners are not subjected to a continuous barrage of party political propaganda (much of which, if it were permitted here, would undoubtedly be negative). The parties’ dependence on wealthy donors is reduced. Political leaders are not forced to spend enormous amounts of time and energy raising money to fund television and radio campaigns. Not least of the benefits is the fact that the broadcasters provide the parties with free air-time. This means that all the major political parties, and not just the richest ones, are given an opportunity to state their views. Almost all those who have observed election campaigns in the United States regard these aspects of the UK system as superior. We believe that the present arrangements have served this country well and should remain in place. (Footnotes omitted)
I believe that the British system is unique in Europe as well (call it "British exceptionalism") and it hasn't gone unchallenged. Nonetheless, their example shows that at the very least it is too simple to argue that good democracy requires the unfettered reign of political advertising. Restrictions on these things are not unreasonable in and of themselves, as a theoretical matter touching on the broad reasons for general commitments to free speech in a liberal democracy in the first place. Once that point is established, you can slog through the mammoth BCRA ruling with the right basic perspective, it seems to me. If you've got a free month to do so, that is. . .
The BBC reports: The 1999 bombing of a bridge at Varvarin, 110 miles (180km) south-east of Belgrade, killed 10 and injured 17. A total of 35 people sued Germany, saying that although German planes did not take part in the raids, the government held responsibility under its Nato membership. Serbian families who tried to sue Germany over a Nato bombing raid have lost their case, a German court ruled.
In German, see the wire story carried by Die Tagesspiegel, here.
From the Scotsman: The move is a victory for Friends of the Earth (FoE) which is battling to stop the "toxic" ships from being dismantled by Able UK on Teesside. A waste-management licence modification was granted to Able by the Environment Agency, but at the High Court in London the agency agreed with FoE that its decision was fatally flawed. AN ENGLISH High Court judge yesterday overturned a decision to allow ships from the so-called United States "ghost fleet" to be broken up in the UK.
For more on this case (including background and pictures), read the BBC report here.
Sometimes I edit cases for class use. Editing my own cases has several advantages: it gives me a deadline for preparation of my lecture on the case at hand; it helps me to learn about the case in detail; and it allows me to highlight the areas that are particularly valuable in the context of the particular course.
I think I'll let someone else edit the BCRA case, though. From the syllabus (pdf file helpfully provided by Rick Hasen), here's the breakdown of the opinions:
STEVENS and O.CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O.CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O.CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II.A, and II.B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.
MORE (12/11/03 1:32 p.m.): Brett Bellmore writes in a discouraged vein and from another perspective:Hey, they COULD have (And should have.) just concisely said, "Congress shall make no law... doing exactly this.", and eviserated the monstrosity. Instead of forcing people like me to start studying up on pirate radio, so we're prepared when the next shoe falls. As it surely shall.
I noted above why I think that the more gloomy explanations of the decision miss the mark.
Archie Mazmanian writes:As I read the breakdown posted I thought of Abbott and Costello's routine "Who's on first ..." and the Homer and Jethroe song "I'm my own grandpa". There ought to be a way to enjoin all this joining.
I suppose we could rewrite the Abbott and Costello skit: "Who's on Title I. . ." And the second could read, "I'm my own dissenter."
Last week, a 9th Circuit panel issued a remarkable decision in a very difficult immigration case, Cheema v. INS (pdf file here). Harpal Singh Cheema was connected to a militant Sikh organization in India although he himself has been a consistent advocate for nonviolent [or at least peaceful] means of advancing the Sikh separatist cause. According to his testimony, Indian police tortured him on multiple occasions using horrific methods. He and his wife applied for asylum in the U.S. The majority of the panel read the relevant immigration statutes to require an exception to otherwise mandatory deportation if the individual involved does not constitute a danger to U.S. national security. Aside from reading the language of the statute to require the exception, and noting that the factual record did not support the claim that Cheema and his wife were dangers to national security, the majority offered the following justification for its decision: History, indeed, is to the contrary. At least since 1848, the year of democratic revolutions in Europe, the United States has been a hotbed of sympathy for revolution in other lands, often with emigres to this country organizing moral and material support for their countrymen oppressed by European empires such as those of Austria, Britain and Russia. In the twentieth century, active revolutionaries such as De Valera and Ben Gurion worked in the United States for the liberation of their homelands. More recently, foreign anti-Communists living in the United States were active in encouraging and aiding movements against Communist tyranny in the Soviet Union and China. Much of this revolutionary activity would fall under the definition of terrorist activity as the Board interprets the statute. None of it had consequences for the lives and property of American citizens or the national defense, and the slight strains occasionally put on our foreign relations were more than offset by the reputation earned by the United States as a continuing cradle for liberty in other parts of the world. That terrorist activity affecting a country struggling with strife cannot be equated automatically with an impact on the security of the United States is dramatically illustrated by the case of Nelson Mandela. In 1961, Mandela organized a paramilitary branch of the African National Congress, Umkhonto we Sizwe (MK) or “Spear of the Nation,” to conduct guerrilla warfare against the ruling white government. Anthony Sampson, Mandela: The Authorized Biography, Knopf (1999) at 150. He then went into hiding to carry out the MK’s mission: “to make government impossible,” and began arranging for key leaders and their volunteers to go abroad for training in guerrilla warfare. Sampson at 151, 158. Mandela was convicted by the South African government of treason in 1964 and sentenced to life in prison. In 1986, Congress passed the Comprehensive Anti-Apartheid Act, stating that its goal was to pressure the South African government to release Nel-son Mandela from prison. 22 U.S.C. 5011 §101(b)(2) (1986); Sampson at 177. It would not be sensible to conclude that Congress, in aiding a man convicted of treason by his own government, endangered the security of the United States or that the alien supporters of Mandela in this country were all deportable as terrorists endangering our national security.One country’s terrorist can often be another country’s freedom-fighter. The Contras in Nicaragua, for instance, used terrorist tactics in an attempt to overthrow the ruling Sandinista government. It would be difficult to conclude, however, without specific evidence, that supporters of the Contras within the United States compromised national defense. The United States itself opposed the Sandinista regime and sent money to assist the Contras. Similarly, the Solidarity Movement that was instrumental in ending Communism in Eastern Europe was labeled by the Soviet Union as subversive and dangerous, but it can hardly be said that contributors to the Solidarity Movement posed a threat to the lives and property in the United States. We cannot conclude automatically that those individuals who are activists for an independent Tibet are necessarily threats to the United States because they have been labeled by China as insurgents. Without further evidence, it does not follow that an organization that might be a danger to one nation is necessarily a danger to the security of the United States.
In dissent, Judge Rawlinson writes:A finding that Cheema provided material support to major international terrorists in turn substantiates the BIA’s finding that Cheema and his wife threaten the security of this country. Car bombings, assassinations of government officials, massacres — world wars have begun with less impetus. . . .Contrary to the majority’s apparent view, our country should not become a haven for those who desire to foment international strife from our shores.
On the one hand, we have analogies to anti-communist, anti-apartheid, pro-democracy insurgents, and on the other hand we have the broad category of "those who desire to foment international strife." In neither of the opinions, as far as I can tell, do we have an attempt to come to grips with the fact that Sikh separatism is both anti-democratic and pro-democratic, depending on how one defines democracy. Separatism is one of the great domestic challenges for India. This challenge is not mitigated by the fact that minorities in India can make justified claims that they have been the targets of political persecution and torture. India is the world's largest democracy and a major ally of the U.S.; it is a country with both genuinely dangerous decentralizing tendencies and genuinely troubling human rights problems. Neither majority nor dissent grapples with this problem squarely, but the problem does not admit of an easy resolution. The universe of international examples can't simply include nation states on the brink of war with each other at the slightest provocation (the dissent's view), and it also can't simply include non-democratic states that suppress human rights in the name of communism or racial subjugation (majority). India is different -- it is a democracy with separatist movements that are dealt with harshly. The urge to push India into either box is understandable; freedom fighters should surely be allowed to escape torture and persecution, and mere insurgents with ties to terrorism should not be given quarter. But what about folks who are in between?
MORE: So far I've only found one news story on the case. Read the San Jose Mercury News, here. The 9th Circuit seems to have ducked the bullet on this one. I suppose that there was enough else going on in the 9th Circuit on the terrorism front last week that this case didn't attract much attention. Plus, there is no (explicit) constitutional issue in Cheema.
The BBC is reporting: The men, whose names have not been revealed, fled to Australia nearly five years ago to seek asylum on the grounds that they would be socially ostracised and possibly persecuted by the Bangladeshi authorities because of their long-term relationship. The High Court overruled lower court and immigration tribunal opinions that the men would not suffer adversely if they returned to Bangladesh and lived in a discreet manner. It said that the Australian Refugee Review Tribunal should have considered what would happen to the men if they lived openly as a gay couple. The Australian High Court has ruled that two Bangladeshi gay men should be given the same asylum rights as political refugees.
The full text of the opinion in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs is available here. In reference to precedent and administrative and lower court decisions against these particular asylum seekers, Justices McHugh and Kirby write:In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.
(paragraph 40)
Justices Gummow and Hayne agreed and took the Refugee Tribunal to task for misconceiving the nature of sexual identity:Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right. This type of reasoning. . .distracts attention from the fundamental question. It leads to confining the examination undertaken . . . merely "to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in [the country of nationality], disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result" [quoting from an earlier case, Applicant LSLS v. Minister for Immigration & Multicultural Affairs]. That narrow inquiry would be relevant to whether an applicant had a well-founded fear of persecution for a Convention reason only if the description given to what the applicant would do on return was not only comprehensive, but exhaustively described the circumstances relevant to the fear that the applicant alleged. On its face it appears to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity. Whether or not that is so, considering what an individual is entitled to do is of little assistance in deciding whether that person has a well-founded fear of persecution.
(paragraph 83)
Looking at the factual record and the unwillingness of the Tribunal to believe the applicants' stories of persecution, however, three justices, including Chief Justice Gleeson, would have ruled against the asylum seekers.
The web site for the High Court of Australia is here.
A two-person Indian Supreme Court panel extended its stay of arrest warrants issued in Tamil Nadu for journalists involved in a high-profile contempt case; the panel also forwarded the case to a five-judge bench for review of the constitutional questions involved. See also The Hindu's coverage of today's proceedings here.
On November 7th, the Tamil Nadu Assembly passed a resolution ordering six journalists to be imprisoned for 15 days for breach of privilege and "gross contempt" of the assembly; five of the journalists are from the newspaper The Hindu, one is from another publication that published a translation of an editorial that was critical of Chief Minister Jayalalithaa's administration. One of the offending editorials is titled "Rising Intolerance," and you can read it here. See also this post at I'm no Superman. The Supreme Court issued a stay a few days after the Assembly passed the resolution. The Hindu subsequently editorialized that the resolution was a "crude and unconstitutional misadventure," and argued further that the resolutioncomes against the disturbing backdrop of a systematic attempt by the Jayalalithaa Government to harass and browbeat the independent press.
The Times of India argued that the case raises some of the most fundamental issues in Indian constitutional law:The basic issue here is not the alleged high-handedness of the Tamil Nadu legislative assembly presided over by Ms Jayalalithaa versus N Ram’s right to criticise the powers-that-be. It is much wider and more sinister. The issue is whether the uncodified privileges enjoyed by the people’s elected representatives can be used to suppress the free speech of those who have elected them. It is as simple as that. For, in a democracy, the citizens’ right to dissent must remain forever.
In the same editorial, ToI called for the Supreme Court to overrule the landmark Searchlight case , which held that free speech rights of journalists must yield to the privileges of legislative bodies.
See also this background piece at Sify news.
From the Montreal Gazette: Fifteen of the 29 appeals being heard from mid-January to mid-March are from Quebec. . . . Two closely watched appeals are a challenge to Quebec's language law in which French-speaking parents are seeking the right to send their children to English schools, and a religious-rights challenge in which Montreal Jews who live in an upscale condominium complex want to erect ceremonial sukkah huts on their balconies.The Supreme Court of Canada is accepting a record number of court challenges from Quebec, in what is shaping up to be one of the liveliest winter sessions in decades.
Mr. Djerejian informs me that I misspelled his name after all. Man, that's embarrassing. Motes and beams and all that. On top of that, my addition to the post last night was embarrassingly snippy in its own right.
I had a post on gaffes all teed up today, but I fear that it would seem self-serving at this point. Apologies to Mr. Djerejian and I await your justified ridicule!
Plus, upon reflection, Gregory's main point -- that it's not a good idea to even appear to be trading in conspiracy theories -- is definitely a good one. My subjective sense of the quote was that Dean spoke without thinking, and I feel somewhat justified by his comments on Fox News yesterday where he offered the explanation that it was an "odd theory" and that's why he said it was "interesting." But I've been drawn and quartered over this one already, so it's probably prudent for me to leave it at that. Plus I now need to concentrate on repairing my bruised ego in time for a lecture in front of 60 students. . .
MORE (12/10): Tasty Manatees (whom I voted for in one of those Wizbang polls, mostly for the name) calls me "just plain dumb," and then makes fun of my admittedly crappy beard from last year. He should have seen me when I had shoulder-length hair. Those were the days.
It's end-of-the-semester plagiarism hunt time for those of us who have to do our own grading. This is how I know. If you find anything in a student paper that is plagiarized from this site, drop me a line!
This piece on Nauru from "This American Life" is absolutely brilliant. Imagine a story that connects money laundering by Russian oligarchs, guano, environmental degradation, international refugees from Iraq and Afghanistan, the Australian navy boarding a Norwegian cruise ship, a Danish psychologist, backroom CIA deals involving an embassy in China and North Korean defections, global warming, and a suit against the U.S. in an Australian court. You couldn't make this story up (or at least I couldn't).
(Picture from Ferieguiden.no)
Even better than strategic hamlets, in a way, depending on what our goals are.
This is really not a very promising story.
