On Graham and the FBI's Failed Fortune Telling

Lindsey Graham could make the Obama's adopting an additional puppy a political issue, so it's not surprising that he has decided to latch on to the fact that the Russian government raised an issue of the older Tsarnaev brother with the FBI as evidence of the FBI's failure.  Several twitterers have also claimed that the Boston bombing was Obama's fault.  I don't have time to deal with the crazies in this world, but I do have some thoughts on the FBI and its treatment of the older Tsarnaev.

First, we as a country can't predict everything that everyone will do.  It's the price of freedom.  There are countries where people fear talking badly of the President / Prime Minister / King / Supreme Leader.  In such places, people have a reason to fear.  They have seen their family members, their neighbors, their friends taken from homes because of whispered rumours about who supports who, who is sufficiently "patriotic" or sufficiently "good" or sufficiently "helpful" to the regime.  Doing human rights, you can spend years reading such stories.  For my LLM dissertation, I spent 6 months reading torture cases - what evil man can do to another man is detailed in such cases, and many of those cases start with a supposed threat one poses to the ruling regime.

Living in a free society - a truly free society - means the government doesn't monitor every conversation or email we have.  It doesn't monitor our every purchase, our every visit, our every change in belief.  This means we can't always know when something will happen.  This is as true of what Eric Harris and Dylan Klebold did as it is of what the Boston bombers did.  Freedom means you cannot predict every attack, and you cannot prevent every attack.  The only alternative is to up the monitoring we are all subject to, and it is, of course, necessarily reminds us of what Ben Franklin said: those who would sacrifice liberty for security deserve neither.

But, the FBI was given information from Russia on Tsarnaev, so it is legitimate to ask what weight should have been given to this inquiry.  There are disputes about how often or who was given information, but let's be clear: the information was from Russia involving a Chechen who was in the US because as a child his family needed to seek asylum.  The brutality of the conflict in Chechnya is well documented.  But the brutality did not stop when the war did.  Amongst those most likely to be targeted and harmed are human rights defenders.  The conflict is wrapped up in both ethnic and religious issues, particularly discrimination and self-determination, though these are not the only issues.

Discrimination against Chechens by the Russian government is widespread, and was cited in at least some news reports as one of the reasons.  For Russia to have concerns about an ethnic Chechen - particularly one that travels between the US and Russia - is not particularly surprising.  Any strengthening of Islamic faith could be seen as a threat.

The US cannot accept without question the call for investigation by countries like Russia.  To do so would be to import discrimination from another state and utilise it in the US. If the same logic was applied to Iraq, the US would have to accept any discriminatory calls against the Sunni minority.  For China, this would lead to heightened surveillance by the US against Uyghurs.  For Myanmar, this could force the US to discriminate against ethnic Rakhine or Kayin people.  The list could go on and on.  The very people who need us most - those who seek refugee status because of intense discrimination - would have that discrimination re-inflicted on them.

And make no mistake - to gain asylum in the US is not an easy thing.  It's a high standard and every year we deport a large number of asylum seekers.  It's a high burden to cross and it is specific to the individual's risk if they were to return home.

To inflict on such refugees the discrimination they faced back home without cause - a serious showing by the home country that there is reason for concern and that it is not simply discriminating - is immoral and unethical.

When the FBI was tipped off by Russia, Tsarnaev was treated as others on the watch list are.  He stayed on the list for one year and because nothing further suggesting concern occurred in that time, he was dropped.  To expect the FBI to do more simply because a discriminatory regime targeted someone in the ethnicity against which they discriminate is to do a disservice to the American dream, that one can escape persecution and seek freedom.  To ask the FBI to predict such abhorrent behavior in the absence of significant evidence is to ask them either to erode our freedoms or to become fortune tellers. And I, for one, don't believe fortune telling is an appropriate means of conducting national security.

I also don't think eroding our freedom is an appropriate means either.  I'm tired of people like Lindsey Graham saying they love America and it's freedom when what they mean is they loving being priviledged in America with its great privileges.  To love American freedom is to love the absence of discrimination, to love the equal treatment we enjoy, and to love the idea that you can talk to your brother in your own house without anyone listening.  This is both a great privilege (though it should be a universal human rights) and a great threat to the security of others.  It allowed Eric Harris and Dylan Klebold to plan the Columbine attacks, for Timothy McVeigh and Terry Nichols to develop the Oklahoma City bombs, and for the Boston bombers to plan last week's attack.

But unless you're willing to give up the right to privacy - that right to private conversations in one's own home without government monitoring and interferrence when they deem a conversation insufficiently patriotic - there's little in evidence that suggests the FBI could have done anything predict or prevent the Boston bombings.

Graham is trying to make a political issue out of a great tragedy because he has nothing else to offer the American public.  And that is, perhaps, the greatest disservice a politician can offer our country.

My 30 second rant on the Laws of Armed Conflict Discussion

Update:  Because I only had 3 minutes the last time I wrote this blog, I left off a necessary discussion of the National Defense Authorisation Act 2012. That is now included below.

I don't have very long to do this, but I had to quickly address Lindsey Graham's criticism of the Obama Administration.  Graham claims Obama should hold Dzhokhar Tsarnaev, one of the Boston bombers, as an "enemy combatant." This, according to Graham, would allow for better questioning.

This is like the "Cliff's Notes" version of what could be a much more detailed answer to Graham's criticism.

Here's the thing, that category doesn't exist under international law and its domestic codification - which is actually "unprivileged enemy belligerent," and the very existence of which may violate the US's international obligations - isn't applicable to Tsarnaev, who is a US citizen.

The applicable US domestic law is the Military Commissions Act of 2006, an attempt to legitimize the very illegitimate Bush Administration's treatment of alleged members of al Qaeda and other random people they were certain were the "worst of the worst" despite the fact that they've now let most of them go without trial.*  There, the law makes it clear that an enemy combatant is an unprivileged enemy belligerent." This is actually a non-sensical category if you consider this is supposed to somehow align with international law.

The Military Commissions Act provides for the establishment of military commissions (it is rather shocking that the US law name actually does relate to what the US law does).  The law provides two separate definitions to create an "alien unprivileged enemy belligerent."  The first is "alien" meaning an "individual who is not a citizen of the United States."  and the second is an "unprivileged enemy belligerent" which means a non-privileged belligerent who

(A) has engaged in hostilities against the United States or its coalition partners;(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or(C) was a part of al Qaeda at the time of the alleged offense under this chapter.

Who are "privileged belligerents"?  Well, the domestic law doesn't actually define that.  International law does, though, kind of.

Technically, belligerents are the parties to a conflict.  It's supposed to refer to the states. The belligerents in World War II were Germany, Japan, the US, Russia, France, the UK, etc.  Applying it to a non-international armed conflict (NIAC) like that of the US and al Qaeda, one would assume the belligerents were the US and al Qaeda.  So, one has to assume that the US legislature actually meant to mean the people fighting because you can't try a category of people - just individuals.

Combatants under international law is a specific category. It refers to the people who fight in an international armed conflict. In a non-international armed conflict - like that between the US and al Qaeda or between Colombia and FARC - the designation for the non-state fighters is that of civilians directly participating in hostilities.

Now, combatants get special privileges under international law. They have the right to kill without being tried (as long as that killing is in line with international law, so no killing civilians or surrendered or injured people). They also get special protection if captured - the prisoner of war or POW protections - like specific pay for their work and an allotment of cigarettes while being detained.

But someone who would normally be entitled to these privileges can lose those extra protections.  For example, if they are caught while engaged in spying, they don't get POW protection. Importantly for this case, if they are fighting against their own state, they are not protected as POW.

People who fight against their own state are operating outside their protection. They can be tried for things they did in the conflict.  But (a) this whole category and discussion of POWs and immunity for killing only applies in international armed conflict, and (b) losing the POW protection doesn't mean that the person has no protection; they just don't have the special protection.

For non-international armed conflicts, those engaged in fighting against the country don't ever lose their protection.  For starters, they don't have special protections.  There's no immunity for killing; there's no guarantee of cigarettes; and obviously, because it's often between a state and its own citizens (think Syria and Colombia for more traditional forms of non-international armed conflict), it is specifically designed to apply to people who fight against their own country.

The guarantees for the non-government actors in a non-international armed conflict include the right to not be tortured and the right to the guarantees of a fair trial.  This requires, at least, a presumption of innocence, an independent, impartial and regularly constituted court, information on their accusation, right to a speedy trial (or a "trial without undue delay"), the right to examine eyewitnesses. and the right to, and means of, defending themselves. This last one includes a right to legal assistance.

Their rights also include the right to remain silent and to not be compelled to testify against themselves or to confess guilt.

So that's what international law of armed conflicts is supposed to look like. Under domestic law, though, we've just ignored the international realities and created an "unprivileged enemy belligerent." A non-sensical category that mixes legal terms to create something specific we want that isn't supposed to exist.

The scope of IHL is limited, though. It applies only where there's ongoing armed conflict.  There's a physical and geographical scope to armed conflict.  You can't actually declare a global war - on anything - and have these laws applicable.  There's some technicality to this issue, but I'm not going into it.  But for the laws of armed conflict in this area to be applied in the US, an armed conflict would have to be ongoing in the US.

But this "alien unprivileged enemy belligerent" category now means that the US can try people by military commission, like those most famously used at Guantanamo Bay.  And it's this that Graham wants the Obama Administration to apply to Tsarnaev.

But more or less only alien unprivileged enemy belligerents can be tried like this.

If you're a US citizen - and Tsarnaev is as of last year - you cannot be tried by military commission, with one potential brief exception that is massively constitutionally dubious. The one brief exception comes from the National Defense Authorisation Act for Fiscal Year 2012 (NDAA, see section 1021-1022).

If you are associated with al Qaeda, Taliban, "or associated forces" the statute says that you can be held without trial "pending disposition under the law of war." The problem with this in relation to Tsarnaev is two-fold. First, you have to know someone is associated with al Qaeda.  You can't make that presumption, operate under it, and then later go, "Ooops - but we're gonna introduce all that information at trial anyhow."  So the idea that you first treat him as an enemy combatant and then later come back to it and change his status has no basis in law.

Second, the constitutionality of this law hasn't been tested, but it's unlikely to be constitutional.  It would not be unconstitutional to an American captured in Yemen or Afghanistan, but it would be unconstitutional to someone in the US.

The only way for this to be constitutional to an American captured in the US - and then it's still slightly dubious - would be for the US to be declared in a constant state of emergency. If you don't want us to be a constant state of emergency, the only way for this to be constitutional - to be able to strip an American citizen of their constitutional rights when they are on US territory - would be to declare an individual in the state of emergency.  That doesn't make any sense.  It's a legally vapid concept.

So Graham now wants the Obama Administration to ignore the Constitution, the laws of war, and the statutes he passed.  Why?  Because he wants information.  But (a) torturing people or questioning them without a lawyer doesn't necessarily mean you'll get that, and (b) that's pointless because he can still give information.

There is a provision in US law that would allow the government to accomplish what Graham wants  (questioning without a lawyer) independent of Graham's choice of action (illegal and unconstitutional treatment of a US citizen). There is a "public safety" exemption that allows for the government to delay telling a suspect their Miranda rights. I'm not going to really get into this because there's a lot out on there on this issue, but the DOJ indicated they would utilize this exemption (it appears there is a challenge coming on that from the Boston Federal Public Defender's Office**).

But  it is worth noting that the Miranda rights - which are actually the Constitutional guarantees in the 5th and 6th Amendments - exist independent of whether the person is informed of them. By being an American on US soil, Tsarnaev inherently has the right to remain silent.  If the government starts to question him and he's smart or watched any procedural shows, the fact that he hasn't been informed of his rights won't deter him from invoking his rights.  He'll have a right to remain silent and a right to an attorney even before he's informed of those.

That doesn't change.

No matter what Graham wishes.

*And OMG it costs $700,000 extra to keep someone at GTMO than a US federal prison?  And I have to listen to Republicans tell me I'm a big government spender?

Update:  Slate has a great piece on the Miranda issue here.

**Another update:  I want to give a big round of applause to the Boston Federal Public Defender's Office! MSNBC is reporting that they are representing Tsarnaev and are challenging extended use of the suspension of Miranda rights. Thank you for standing up for justice.

On free speech, Islamophobia, and that movie (Or: Part of why I love the US)

You want free speech? 

Let's see you acknowledge a man whose words make your blood boil, 

who's standing center stage and advocating at the top of his lungs 

that which you would spend a lifetime opposing at the top of yours. 

- The American President

I've been a little disturbed by the number of my facebook friends suggesting the makers of the Islamophobic film "Innocence of Muslims" are to blame for the violent attacks around the world. One suggested that an attack by a female suicide bomber in Kabul, Afghanistan, was the consequence of "so-called freedom" of speech. The movie was called an "abuse" of freedom. 

This doesn't really make sense to me. A probably-Afghan, definitely Muslim woman blows up Afghan, probably-Muslim citizens, including children, as a way to "protest" a film that wasn't made by Afghans and is insulting to Islam?  And that is the consequence of protesting freedom of speech in the US?  I think not. If that is your concept of "protest" you really don't understand the word.  Because where I'm from, that's called murder and it doesn't fall under protected speech, protected protest, or protected assembly.

I was therefore grateful to see a headline come up on CNN declaring "Sunni Islam leader calls for peace, urges Muslims to have 'patience and wisdom'. In it, Egypt's Grand Mufti, an active member of the Coexist Foundation (which I generally love!) denounces the violence. But the article continues in a trend that I have found disturbing:

Egypt's grand mufti questioned whether in the United States, for example, the inflammatory film "Innocence of Muslims" was not illegal under laws prohibiting the spread of hatred. And he also challenged if laws protecting freedom of speech were applicable.

"This is not freedom of speech, this is an attack on humanity, (an) attack on religions, and (an) attack on human rights," he said.

This is the refrain I want to discuss: that the movie attacks human rights and religions and does or should violate free speech. That it should fall under some special categorization of speech - "defamation of religion" - that the international community should now recognize as violating human rights.
 
I haven't watched the film all the way through but I did glimpsed through a few seconds so I would sort of know what the fuss was about it. Is it insulting? Yes. It is repugnant? Yes. Is it some of the worst acting and worst filmography ever? Absolutely. Was it made specifically to insult Muslims? Probably - I mean, you really couldn't come up with worse dialogue and worse acting if you tried, so there's really no other reason to make the film than to insult others' belief systems.

But, does it violate free speech?  In Europe, perhaps. In the US, no.

The US has some of the most extreme free speech laws in the world. Unless your speech is actually calling on people to engage in violence and you can anticipate they will do so - in response to your call, not as a consequence of hating what you say - it's protected in the US. Unless it falls in that very narrow category of speech intended to, and likely to, incite violence, or unless you're selling a product that is chemically harmful to the human body, you can pretty much make any statement you want in the US. I want to make "your momma" jokes all day long? Protected. I want to burn a flag? Protected. I want to walk down the street singing "kum ba ya"? Protected. And if I want to tell you that you are genetically or intellectually inferior because of your race, religion, ethnicity, nationality, or just because I think you're ugly? Protected.


There are limits as to where and when you can say things, but not really what you can say. So the government might say you can't sing "kum ba ya" at 3:30am in a residential area, but they can't prevent you from singing kum ba ya at all. A school can ban a student from wearing a t-shirt to class, but the government can't ban that child from leaving the classroom, stepping off school grounds, and changing right into that very same t-shirt. And while the law doesn't protect your right to go into an black church in the South in the middle of a worship service to say blacks are genetically inferior to whites, if you want to stand outside of the Town Hall on publicly-owned property during the middle of the day and do it, it becomes protected speech. And if you want to burn a flag in the middle of that rant, it is also protected.

Because it's not just people in other countries that burn our flags; sometimes it's Americans themselves. Even though it's a flag that many hold dear and sacred, burning it in protest is a recognized right.

From:  http://portland.indymedia.org/en/2005/05/316658.shtml

 
I know this is extreme for people from other countries. In most countries in the world, there is some prohibition on speech aimed at speech that incites religious and ethnic hatred. It's an obligation in international treaties - for which the US has reservations saying (essentially) it will not abide.  Suggesting otherwise - suggesting the government has a right or a place in defining what is acceptable speech and what isn't sends a message that the US government could but isn't willing to do something about the video.

The exact opposite is true: the government may want to, but it does not have the authority or power to do so. This is a fundamentally important point because if you suggest that the video could violate free speech laws in the US, you are suggesting the government has a role and responsibility to intervene. But if you understand that the US law protects this speech absolutely - because, to my knowledge, it never includes a direct call to violence that could be interpreted as trying to and obviously leading to such violence - then you have to understand why it is not and cannot do more to stop such speech.

Living in a land of extreme speech has its drawbacks. We're currently at a stage where our democracy is threatened not by religious fundamentalism but by ideological fervor that encourages people to think it's acceptable to lie about pretty much anything in order to win an election. It's dangerous. But it's also protected.

And I like that about my homeland.  Good and bad, I like that when some idiot makes a film, (a) the majority of Americans won't actually watch it (seriously, no one would have watched it but for the outcry), but (b) it falls not on the government to regulate it and say it's inappropriate, but on the citizens to do so.  Hated speech - and hateful speech - cannot result in a prison sentence that intensifies someone's martyrdom, but it can result in social ostracism, which only strengthens the cultural understanding of what's acceptable and what is not.  If that determination of acceptability comes from the government, rather than from friends, family, and community members, it never takes a firm root in the hearts and minds of those targeted, or those observing.

That's not to say that the guys who made this film, or the likes of Terry Jones, will ever be persuaded by the response of thousands of other Christians in the US who have protested their acts, but those responses do impact societal understandings of their underlying messages.  As a young child, I remember someone standing up to racism.  It wasn't some big bad way of handling it - there was no violence, there was no punching. It was a simple statement: "That's racist."  And when the offender continued to protest that it wasn't, the response remained the same: "No. That's racist and it's unacceptable. Here's why..." with a brief explanation of the premise it was built on.  I honestly don't know who the person was who stood up in that way - I can see their face briefly in my memory, but I was young and short so mostly I remember their hands as they talked.  But that memory - that willingness to call someone out when the speech they were advocating was both insulting and based on premises that were fundamentally racist... that has stayed with me.

I don't always handle racism that well, but I want to. I've always wanted to.  Because in that moment, there was a societal recognition of those around that someone had just stepped beyond the bounds of social acceptability. There were no police to enforce this, there were no arrests made. But, I, as a young child, learned what was right and wrong in that moment.

As I got older, I heard blatantly racist things a lot less, but as more people were willing to call out the blatantly racist things, the multi-cultural community I grew up in found it's own code words to hide the racism. You would hear a white man at a table over from you say, "Well, when they - you know, they - moved in ..." And you wouldn't be certain that he was talking about a whole community - the black population in our community - or if he was referring to a specific neighbour, who may or may not be black (which is possible because everyone in my city is pretty much related to each other so lots of people don't use names when they're in public).  That kind of racism is much harder to call out.  Had he just said, "Well, when the black people moved in ..." I could casually lean over and tell him what he just said was insulting, not just to black people but to me. When he says, "they" and I can't tell who "they" are, it's much harder to casually point out to someone that they're not actually the good person t hey pretend to be, but they are actually racist whether they want to admit that word or not.

And that's the thing about racism and religious bigotry: it doesn't go away simply because it is prohibited. It just goes underground.  But while I can't call people at a table over out for their underground speech (unless I hear the whole conversation), when I'm at a party and someone uses the code words around me, I can - and have - called them out for it.  That kind of rebuke is, I think, more powerful than government pronouncements, arrests and denunciations.  It may not give full satisfaction to everyone who is insulted by the speech, but it does alter the discourse in the community and it does encourage the speaker to actually reconsider what they just said, even if that doesn't occur in the immediate period but only later.

The international community has already debated the defamation of religion concept and decided it was an inappropriate impingement on human rights. To revive that debate again is to move backwards in our understanding of human rights.  Human rights necessarily cause friction with one another, and that is no more more prominent than in the four freedoms found in the International Covenant on Civil and Political Rights, articles 18, 19, 21 and 22:  freedom of religion, expression, assembly and association.

The freedom of religion includes the right to change one's religion. This suggests an opportunity to both share and receive information about your religion.  And yet, the very idea that someone would change their religion violates the underlying belief systems of the religions; it is, by many religious standards, the leaving of God's word. It threatens the tenets of faith of many. And if it requires the ability to share and receive information about religion, it means that my right to retain my religion comes into direct conflict with the right of others to share about their religion.

This is what human rights is; it's the recognition that we are not all fundamentally entitled to everything we individually want, but that we live in a community whose goal and obligation is to realize the inherent dignity of every person. Sometimes that will mean that our rights come into conflict, and we have to learn to balance them appropriately.

The freedom of speech means the right to say things that others despise.  And sometimes, we need to have those conversations. If we were to denounce and ban every speech deemed insulting to a religion, we really would still believe the Sun revolved around the Earth. Because for a very long time, Catholics (back when all Christians were Catholics) found that to be a denigration of their religious beliefs.  It turned out to be truth and the entirety of Christianity now accepts that as a reality and not contradictory to the Bible, but for a while it was deemed to not just be sacrilegious but to be an attack on the foundation of religious belief.

Someone - I think a commenter to an al Jazeera article - said that Christians in the US would never stand for this kind of insult to their own religion. My response? Bullshit.

The first time I watched The Life of Brian I wasn't a Christian. I thought it was hilarious.  The second time I watched it, I was not only a practicing Christian but one who taught Sunday school and lead Bible Studies.  I was shocked at my younger self for embracing such a sacrilegious movie. It is, in many ways, fundamentally insulting to the Christian faith. It suggests that Christians are kind of stupid and wish-washy and Christ may or may not be who he claimed to be. But, as I have watched it again (yes, despite being scandalized the first time), I've found that it engages in questions I, as a Christian, need to be able to address. What is it that I think makes Christ unique? Why am I willing to follow Him wherever He calls me (and He's called me to go to places I really didn't want to go to, like Cincinnati, Ohio)?  Why do I think He is who He claimed to be?

These are fundamentally important question. They are questions I need to be able to answer if I profess to have a faith in Christ.  Was that the motive behind the movie - to call me to a closer relationship with God?  Doubtful.  But how I respond to the movie is not determined by the motive of the movie-maker; it's determined by my relationship with God.

The Life of Brian isn't the only movie that has scandalized Christians in the the US.  We also have The Last Temptation of Christ on our Blockbuster bookshelves; we had an artist dip a crucifix in urine at a performance in New York; and the movie Dogma is based on the premise that God can make mistakes. And yes, our Bibles have been burned at times. These all directly attack central foundations of Christianity and do so intentionally.

And, for that matter, so does Islam to an extent, as Christianity attacks the foundations of Judaism. For Christianity to be true, then portions of Jewish teaching must be false. There was be a denouncing of it - the idea that the Savior is still to come; the idea that Jewish people retain a special covenant with God. For Islam to be true, then portions of Christianity (and Judaism!) must be false. We (Christians) believe that Jesus was the Son of God, the Saviour, who died and was resurrected. Islam suggests that Jesus was a prophet, which is axiomatic to the fundamental tenants of Christian doctrine. The very suggestion is a grievous offense to Christians, not that substantially different than The Last Temptation of Christ, The Life of Brian, or Dogma.  And Christianity rejects the concept of Mohammad being a Prophet.  Yet, under Islamic teaching I am a protected person of the Book, despite my rejection of Mohammad as the greatest Prophet.

The point is that we cannot outlaw speech simply because they offend someone's religious sensibilities.  Sometimes, those offenses are necessary as we develop in our scientific and cultural understandings. Sometimes they must be protected in order to respect the religious rights of others. And sometimes there is no greater good that comes of them other than the protection of speech itself and the benefit that comes from free and robust dialogue.

It is this premise that is behind the robust protection of free speech.  It is not easy to live responsibly with such freedom - it takes commitment and a willingness to stand in front of someone to protect their right to say the very things you have fought against your entire life.  But there is a deep and real benefit to that level of freedom, and it is one that is misunderstood and under-appreciated by those who would blame the response and violence on the freedom of speech recognized in the US.

I don't like the video or the distributors' intentions. I think they're disgusting. They're manipulative. And they're outrageous. But the way you fight that is not through government intervention (or through rioting and suicide bombings).  It is through a dialogue that educates those around you.  It is through using the very freedom of speech you see them using and it is through standing and screaming at the top of your lungs against the very thing they would scream at the top of their lungs to defend.

That is what freedom looks like. And that is worth fighting to preserve.