Egypt and the US’s “Underdog” Problem

Americans love our underdogs.

The Miracle on Ice. Rudy. Michael Oher (aka “that guy from the Blind Side”). Every March Madness Cinderella story ever (I’m looking at you Butler). Rocky Balboa. Whichever team is making a run for the championship when they haven’t won one in 60+ years.

And we love our sentimental “win one for the Gipper” stories: the New Orleans Saints after Hurricane Katrina; the Patriots after 9/11; Boston Red Socks after the Marathon bombings; Keri Strugg at the ’96 Olympics. I mean, seriously – who rooted for the Red Socks before the bombings? Other than, obviously, the greater Boston area.

As a lifelong Cleveland sports fan, rooting for the underdog is a way of life. I can name the number of times in my life we haven’t been the underdogs. Mostly because they actually have names - and they're all associated with the other side winning. Red Right 88. The Drive. The Shot. The 1995 and 1997 World Series. And the Decision (which I think should be called “The Betrayal”).  More often, we’re hoping and praying for a Kardiac Kids pre-Red Right 88 moment; a moment when our under-dog status brings us a Cinderella ending. It very. rarely. happens.

As a Cleveland fan, I have three rules for sports: root for Cleveland; root for whoever is playing the Steelers, the Yankees or the Heat; and when neither of those rules apply, root for the underdog.

These rules are bent sometimes when the playoffs are on the line, but for the most part these rules tell me who to root for without regard to who the team was playing the week before or who they will play the next week. In the course of two weeks, I can root against the Bengals (when playing the Browns) and then for the Bengals (when playing the Steelers) and never violate my great rules.

I know I’m not alone, and across the US these rules apply with just a change of the team’s names.

But the US has a problem when we transfer our love of the underdog to our interactions in international affairs.  We tend to jump into the middle of serious issues as if it was a sports season. It doesn’t matter who we would have rooted for last week or last month, it’s a whole new game whenever we decide to start paying attention. And whoever is on the losing side?  That’s probably who we are going to root for.

This often leaves us as a society under-appreciative of the complexities of the conflicts we take sides in. We assign white hats and black hats based solely on who is winning or losing at a given moment.

Once we choose sides, we hold on to that choice, rooting for or against a team to the end, often times in spite of changing information or alternatives. It doesn’t matter that Iran was opposed to al Qaeda and the Taliban before we were, or that they were one of the first countries to officially condemn the terrorist attacks and offer condolences and solidarity after 9/11.  They’re the bad guys; we root against them; and so it apparently made perfect sense to assign them to some insane Axis of Evil that no one who understands the political situation of and between Iran, Iraq and North Korea could possibly accept. 

It doesn’t matter that Rwanda’s President Paul Kagame has invaded other countries and is accused of aiding war crimes. He’s a Tutsi, and they were the victims in the ’94 genocide so he’s a good guy who got unflinching support until only a year ago.

Our unfailing support for Israel in the face of systematic oppression of Palestinians both inside Israel and in the Occupied Territories hasn’t changed despite mass changes in the circumstances. We know who is right and wrong:  it’s the side we chose when Israel was the underdogs, formed of Holocaust survivors facing war with all their neighbours. So despite the fact that now Egypt, Jordan and Turkey are at peace with Israel, providing Israel a strong buffer against any invasion from anyone other than Hezbollah or Hamas, and despite the fact that Israel is building settlements in land it doesn't own, displacing thousands of Palestinians and making it harder for them to travel within their own territory, despite the fact that Israeli actions mean that thousands of Palestinians die because they can't physically get to the hospital on time, despite the fact that Israel soldiers arrest 5 year olds for throwing rocks, despite the fact that they have instituted segregated busing that makes it harder for Palestinians to access their jobs in Jerusalem... despite all the power Israel has over the daily lives of Palestinians, and despite the relative peace they now enjoy with their immediate neighbours, we know who our underdog is and we’re gonna stick with them.

And that’s our problem. That’s why the rest of the world sits there and shakes their head in amazement at the choices we make in the international arena. We play international politics like we cheer for football: absolute loyalties with no reason and thought about the complexity of the conflicts.

Right now, we have that problem with Egypt. 

We know a little more about Egypt’s recent history than most every other country we’ve taken sides in recently, but our media and our politicians are still displaying a horrendous lack of awareness about the complexity of the situation. 

The truth is, no one can really judge what's going on in Egypt unless they speak Arabic and are there. I don't speak Arabic and I'm not there, so I'm just as bad as our politicians and media and I'm not going to pretend otherwise. But, I do think we're missing so much of the picture, and the more I see and hear from Egyptian friends, the more the western media and our politicians sound ridiculous. I did ask 3 Egyptian friends to read this before I posted it and made some tweaks based on suggestions, though ultimately this is mine and they shouldn't be blamed for my opinions.

Most Americans woke up to the oppression in Egypt during the Arab Spring protests against Mubarak, cheered for his removal, briefly condemned the election of the Muslim Brotherhood (“MB”) and then stopped paying attention when it became clear the MB wasn’t going to declare war on Israel.  So we mostly missed the constant stream of developments in the year since then.

We mostly missed the declaration from Morsi that the courts could not overrule his decisions, placing himself above the rule of law.

We missed the ongoing attacks against Christians and Christian churches around Egypt, with little response from Morsi and the MB leadership. (It is imperative to note that there have been other Muslims in Egypt speaking out in defense of Christians, and many who have risked their own lives for the protection of Christians and Christian churches both this past month and over the past few years.)

We missed the steady stream of Morsi placing his MB colleagues into positions they weren't necessarily qualified for.  Yes, we oftentimes accept this as part of US politics, but not everywhere is so willing to take on random, unqualified political appointees in the top ranks of their administration.

We missed the abuse of journalists, and the mob attacks on those who demonstrated against Morsi.

Perhaps most importantly, we missed the news before the coup that the Egyptian Supreme Constitutional Court ruled the Parliamentary elections were unconstitutional.

Literally. We missed it. If you google “Egypt's Supreme Constitutional Court declares upper house of parliament and the constituent assembly unconstitutional,” none of the top results are from mainstream English language media. Not the BBC. Not CNN, or Wall Street Journal or NYT. Or really anywhere else you would normally get your news from.

It’s actually still hard to find mainstream English language news on this, so I have to rely on the World Socialist Website, though its description matches what I was told by several Egyptian lawyers over the past month:

Before the June 2 rulings, the SCC had already declared the People's Assembly, the lower house of the Egyptian parliament, illegal in June 2012. In both cases, the SCC declared the two houses of parliament unconstitutional on the grounds that the election law under which the bodies were elected in February 2012 “violated articles 37 and 39 of the constitutional declaration.”The court stated that the electoral law discriminates “against independent candidates because it allowed political parties to compete for the one third of seats reserved for independents, while it stripped independents of the right to compete for the two third of seats reserved for party-based candidates.”

In most modern democracies, a ruling like this would result in an immediate call for new elections. The US is an anomaly in the sense that we have timed elections. Most Parliamentary systems have a more fluid election system in which elections must be held within a certain time period, but there can be an early call for elections for any number of reasons: a change in party leadership; a fall in general confidence; systematic problems with the elections; and sometimes just the strategic "we have great poll numbers - let's go a few months early!" The UK only moved away from this system in 2011 and people still haven’t gotten used to it.

Morsi, however, didn’t call for early elections. He indicated he was going to rule no matter what the people wanted.

So we in the US don’t realize or appreciate that a majority of Egyptians feel that the continued rule of the MB was illegitimate, undemocratic, and dangerous.  We missed the steady stream of changing public opinion against the MB, which is mostly the result of these developments. The change in opinion was a response to Morsi, who showed himself incompetent at leading a nation as diverse and as complex as Egypt. A country with a strong moderate and secular contingency, and one committed to ensuring a true democracy after years without it.

Instead of understanding that this didn't occur in a vacuum, we have Lindsey Graham childishly telling the new acting Prime Minister of Egypt, “Mr. Prime Minister, it’s pretty hard for you to lecture anyone on the rule of law. How many votes did you get? Oh, yeah, you didn’t have an election.” 

Conveniently, he forgets the number of times the US put people into power who had never won an election, including everyone associated with the initial state-building in Afghanistan post-2001.

Americans started paying attention to Egypt again when Morsi was removed in a coup. 

Yes, I’m using the word coup in a post in which I’m still arguing we’re wrong in our approach to what is going on in Egypt.  There is no other word for what happens when a democratically elected leader is removed by the military. 

My Egyptian friends hate when I call it a coup because they view the situation as more complex. The use of this word in this piece elicited strong reactions. In their view, the military was doing what was required by the people but what the government itself didn’t want to do.  The military was preventing electoral authoritarianism (yup, that’s a thing; nope, it doesn’t apply to the Obama administration; no, that’s not open for debate with me).

And the truth is, it's really not much different from what happened with Mubarak.  Mubarak's last election was a multi-party, contested, democratic election, monitored by Egyptian judges.  There were problems with it, but given the US's recent history with elections and the current situation in North Carolina, I think we should hold off on casting stones from our glass house by trying to suggest it was an illegitimate election. It was an imperfect one, but it was a transition to democracy.

Mubarak and Morsi both faced large protests, with the military siding with the protesters. The only difference is whether the leader was willing to resign.  Let's be honest: Morsi probably would've been stupid to resign after witnessing what happened to Mubarak. Morsi must have known that any complaints of corruption, cronyism and abuse would turn into an actual trial after his presidency.  

But he was also stupid not to resign. By failing to resign, he simply made it more clear that he felt himself above the will of the people.  And people in democratic states tend to resistance those who would make themselves kings or pharaohs. 

The MB is insisting they'll only participate in a peaceful way forward if Morsi is reinstalled.  But their actions subsequent to Morsi's removal make it impossible to return to a Morsi-led government.  Again, the US and western media has largely been absent from noting the atrocities:

We missed when bombs were set off on oil pipelines shortly after the coup. We missed the news that this was a tactic the MB had regularly employed when Mubarak was in power and that there were promises the bombings would stop if Morsi was returned to power. 

We missed learning that these bombings were part of a long conflict in the Sinai region that pitted jihadists against the Egyptian military; extremists against the more moderate state. We didn't understand that this constant barrage of attacks - and the MB's willingness to side with the jihadists - cost the Muslim Brotherhood support. And we don't understand that this continues to represent a threat to the Egyptian people.

We missed the intimidation the MB was meting out to those who opposed them, who sat in their houses as the MB staged their protests, unable to leave.



We missed the news that al Qaeda intends to use this as a moment to destabilize Egypt, siding with the MB in an attempt to install extreme forms of Islamic governance.

We missed the news that the MB is refusing to participate in the new Constitutional process, despite indications they were invited.

In a weekend where the international media concentrated on the breaking up of demonstrations, we missed the news that more than 40 churches and religious institutions were attacked. That Christians, Christian homes, and Christian businesses were systematically targeted. We missed the news that the Coptic Pope had to go into hiding for fear of his life and that of the congregations he serves. We missed the constant laying of blame by the Muslim Brotherhood against Christians for what is a widespread, inter-faith rejection of their leadership, one in which the church remained largely quiet out of fear of such reprisals. 

Prince Tadros Coptic Church
From AFP / Getty Images

Bon Pasteur Catholic Church & Monastery in Suez
Source: Dina Nazmy

Once again, it must be noted that there are many Muslims risking their security and lives for the protection of Christians in Egypt. It is also worth noting that the Egyptian military has said it will pay to rebuild all the damaged churches.

From Twitter, reposted at examiner.com

We missed the news that the spiritual leader of the Muslim Brotherhood has called for the persecution of Christians, and supporters have indicated they intend to wipe out all Christians in Egypt. We missed a threat of genocide against Christians. This isn’t particularly shocking considering how little the church in the US speaks out on behalf of Palestinian Christians, too. But it’s still pretty abhorrent.

Seriously, if we're going to pick the underdogs of Egypt, it's the Christians.

But it's not just the Christians.  There are calls against Shia Muslims as well.

Thankfully, most of the Muslims in Egypt are also picking the Christians to side with and they are refusing to engage in a Sunni-Shia division.

It is clear to those in Egypt that the MB is using this tactic to make it a religious conflict. It is also clear to those present that this won't work. In response to this post, my friends kept saying how there are "just Egyptians," not Christian and Muslim, not Sunni and Shia; just Egyptians. And they refusing to allow the MB to win in a war of propaganda on religious grounds.

But it needs to also be clear to those of us on the outside.  Because this isn't a call for intervention. It's a call to respect the process in Egypt.  It's a complicated process and we keep missing the whole story.

Americans came in at game 15 of the season and decided we were going to root for the underdogs, even though at game 6 we were rooting against them and at the start of the season we didn't even know they were a team. Lots of things changed in the middle, but we apparently don't feel the need to understand those things. 

The situation of Egypt is complex. The rule of law there is absolutely threatened. It’s threatened by the coup but it is also threatened by the Muslim Brotherhood.

Instead of discussing these complexities, we concentrate on a small piece of the picture: the removal of peaceful MB demonstrators, the resulting deaths, and their systematic arrests. The Egyptian military’s use of force is at times unnecessary, illegal and wrong.

But the protests weren't always peaceful, and there was a lot of reports of abuse associated with them. To suggest the military had no right to intervene at all is to ignore that reality. To suggest it had a right to disperse all the protesters is to ignore the right of an important voice in Egyptian politics to protest.

There is a significant size of the MB that intends to wreak havoc in Egypt unless they get their way. This doesn't mean they should have their human rights violated but it does mean that the government has a duty to respond where their abuses infringe on the rights of others.

Where we’re failing is when we confuse the injustices perpetrated against the MB with them being the “good guys,” the “legitimate leadership” or the people we should be supporting. 

The main question that Egyptians have to face is this:  does the MB have legitimacy to continue to rule in Egypt? 

No. They don’t.  

But they won’t participate in a new system unless Morsi is put back in power. And Morsi can’t be put back in power without setting off large protests by the millions who protested his rule in the first place.  The current situation cannot continue, but the old situation cannot be reinstated. So a third way is needed.

Currently, there is an ongoing process to create a new Constitution for Egypt. This process is not perfect, but then again Constitutional processes rarely are. The one the US celebrates most frequently excluded women and resulted in a determination that most of the black people in our country only count for 3/5 of a person.

Egypt has the chance to fix a broken system with a new Constitutional process. If it’s done well, an inclusive process in the current situation could finally set Egypt up for long term success. It could place the military in the position the military is supposed to have in a democracy: subservient to a civilian government which is in turn subservient to the will of the people. It could create space for the Christian community – which is the largest religious minority and represents 10% of the Egyptian population – to participate in government and society with more freedom and less fear.

I don’t know if that will happen or not. But I know that my friends in Egypt are looking for a better solution than what they have. I know that my Christian brothers and sisters there deserve more support from the US than a simply kneejerk reaction of support for the MB because they happen to be on the losing side right now. I know that ignoring the complex situation in Egypt is short sighted and inappropriate.

It’s inappropriate because it degrades the voices of the millions of Egyptians who now have to fear the MB’s systematic assaults on Christians. It ignores the voices of the millions of Egyptians who have sought the protection of the military. It ignores the reality of the millions of Egyptians who are staying indoors these days simply because of fear over being attack, and it misses the reality that that fear is not simply directed at the government but is also a result of Muslim Brotherhood attacks.

And it is short sighted because it ignores the abuses of democracy by the Muslim Brotherhood, which precipitated the coup. The question of democracy in Egypt didn’t start with the removal of Morsi. Even the recent history of Egypt's struggle for democracy started before that. It started with Mubarak’s rule. It continued with illegitimate elections and processes and declarations that the President is above the rule of law. It continued with the coup. We don't know where it's going next, but we need to start paying better attention.

We need to stop running our foreign policy like we choose who to root for in the Superbowl. Egypt is a good lesson on why.


[PS. After I wrote this, but before I posted it, I found this interview by the BBC of actor and activist Khalid Abdalla. A friend, who will remain nameless here to protect her as she is in Egypt now, posted it on facebook and it is such an important interview. It really needs greater publicity: 

Reflections on the DOMA decision

I don't remember when DOMA was passed; it's not one of those etched-into-my-memory-forever moments. But I do remember the debate leading up to it. I graduated high school in June 1996, and DOMA was signed a few months later. During my senior year psychology class, we were asked to debate whether gay people should be allowed to adopt children. In a class of 30, I was the only person who said yes. The gay students in my class were too afraid of being outed to speak up. I am, almost sadly, very heterosexual and therefore had no such fears. I also don't care if people think I am gay. 

And of course, that is what happened. After a robust (and, obviously, amazing) defense, someone said I must be gay. I replied - and apparently rightly so - that if I were, there's no way I would have been willing to speak up on this issue. I would have been so afraid of what was being said, I'd have just remained quiet. When the class was sent away, one of my classmates came out to our teacher. It would take her a few more years to come out to me but when she did she reminded me of this story.

The freedom that comes when you're unafraid of discrimination can be a powerful one, if it's channeled correctly.

It's easy to look back to that day, though, and say "I also don't care if people think I am gay." In truth, in 1996, being gay wasn't just a sin in the eyes of some Americans. It was a justifiable reason for discrimination in the eyes of most Americans. My parents, who were my first teachers of equality and who have each been powerful voices for the underprivileged and voiceless, had always encouraged me to speak my mind and to fight for fairness. They taught me the lessons of Martin Luther King, Jr., and yet on the issue of gay rights, they feared my outspokenness would lead people to discriminate against me. There was a clear fear that by associating with gay rights, I would be assumed to be gay. If that were the case, I risked being ostracized. Not by my parents, who made it clear they would love me no matter what, but by pretty much everyone else in my life.

In law school I was taught the same thing. People encouraged me to leave off my CV both the Christian Legal Society, of which I was co-President as a 2L, and Out & Allies, of which I was a member (admittedly, not very active) for all three years. Having both on my CV would make no sense to anyone, I was told, and choosing one or the other would inevitably offend someone who wouldn't give me an interview because I was too conservative or too liberal. If I actually was gay, perhaps I would want to signal that so I didn't end up at a place where I had to answer too many questions, but as I wasn't gay, there was no point to it. While I didn't listen to my parents in high school, I did cave to the pressure in law school and chose to leave off all extracurricular activities that weren't a journal or Honor Council.

Fear can quell even the outspoken, if it isn't forcefully rebuked.

I failed myself back then. 

Today's decision on DOMA will not change my life in any meaningful, personal way. I will not suddenly have a marriage recognized on next year's taxes. I will not be entitled to bring my spouse in from overseas. Or have my spouse recognized as a dependent for my federal health care. In my extended family, there is still not a single out person, so I won't even have someone extra joining my family. The most personal that this gets for me right now is that I won't feel guilty when I do eventually marry. And I'll likely have a lot more weddings to attend in the near-ish future, both for my gay friends and for the straight ones who have vowed not to marry until gay people could. (This does actually mean more presents to buy for other people, and less money for presents for myself, so I'm feeling pretty self-sacrificial in my joy today.) [The last part of that parenthetical was sarcasm, by the way.]

Yet, today, as my news feed filled with pink equal signs - for the second time this year, and with people who sat in my senior year psychology class joining the cause - I felt an intense sense of pride at what the Supreme Court did today, and at what it means for my lifetime. Because while my life will not change, my lifetime has become something more. When I am old and grayer than I am, I will tell my grandchildren about how in my lifetime, I saw people move from a position of hate and exclusion to a position of love and acceptance. I saw the fear lose the war, even if it sometimes still wins a battle.

Like "Don't Ask Don't Tell," DOMA was a product of the time in which we were living.  It was a time filled with fear.  A time to fear discrimination if you were gay, a time of fear of those you didn't understand if you weren't.  In less than twenty years, though, the balance shifted. And it shifted so heavily that a group of 5 Justices whose average age is 68 years old felt it untenable to treat homosexual people differently than heterosexual people. 

If fear was not still tangible, we would not have as many children committing suicide because they were bullied on the basis of sexual orientation.  But the institutional acceptance of fear is being chipped away. I think back to how black school children were treated in the aftermath of Brown v. Board of Education, and know that bullying based on sexual orientation will be socially - and possibly legally - unacceptable in my nephew's classrooms. That is what my lifetime now means. 

The moral arc of the universe is long, but it bends towards justice.

Yet, if we're measuring the moral arc of the universe - and not just the US - there is still a lot more bending that needs to be done. I can't help but think of my friends who fight for LGBT rights in other countries. The conversations that have been had, the trials that have been fought, the fear that still permeates their daily lives.  Fear of persecution; arrest; death. Fear that their family will reject them, either for being gay or for being supportive of gay rights. 

It is a fear I have never known. But it's one I look forward to being defeated. 

In. My. Lifetime.

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.

Ten Years

Ten years ago, I sat in a restaurant in Mt. Adams, Cincinnati, with my friend Yvette. When President Bush came on the TV, the restaurant turned up the volume so we could all listen as he declared we would invade Iraq.

Yvette and I were both outraged. Did he know what he was doing? Did he not care about the facts? Did he not care about the illegality?  Did he not understand? How could he betray our common values like this?

After listening to us, a woman in her late 30s - about 10 years older than we were at the time - turned to us and said, "He really had no choice. They are making us do this."

I've often that of that woman over the years. Does she realize yet how wrong she was? Does she still defend the decision?

Over the next 8 years, I was routinely called un-American or anti-American and a socialist- communist- fascist- terrorist-lover. I listened as our Constitution and Constitutional history was discarded with nothing more than racist and bigoted rants about how "those people" are different and "don't deserve" protection - as if the Constitution was built around a premise of who "deserved" it.

As if we somehow earn the right not to be tortured.

I listened as my Muslim brothers and sisters - and yes, they are my brothers and sisters even if we disagree on who Christ is - were treated as if they were less than.  Less trustworthy than me. Less patriotic than me. Less humane than me. Less caring than me. Less worthy than me.

This started before we invaded Iraq, of course.  It actually started before 9/11. It just grew uglier, more rampant and more acceptable following Iraq.

The threat was no longer a few Saudi extremists in the mountain region of Afghanistan - and as my Afghan flatmate is routinely fond of pointing out, they were Saudi, a country we have yet to invade and would never even consider doing so despite the millions flowing from it to the extremists. With Iraq, those who wanted it to be a Muslim problem felt justified - it was a problem from those people and those people were anyone with a long beard or a face veil.  Or forget the long beard and face veil - they really just need a Koran or a Muslim-sounding name or Arab-looking skin.

And the detractors felt justified, too - the ones who blamed the US for 9/11 and felt the US was waging a war not against terror but against Islam.  Afghanistan may have been justified and legal, but Iraq was neither and it was apparent to everyone in the world.  Except the Bush administration and those they could lie to or strong-arm into submission.

Since then, I have been prove right and that woman in the restaurant wrong. There were no WMDs. There was no justification for Iraq. And while Saddam was a horrible man, if we were to invade every country with a horrible man leading it, we would be in an awful lot of wars that we really aren't ready to engage in.

As this 10 year anniversary comes and goes, I also have to think about Syria.  If we hadn't gone to Iraq, would we have the desire and the gumption to assist in Syria more?  In the wake of the Bush Administration's misuse of the concept, the international community has largely rejected unilateral action under the Responsibility to Protect. Libya - and now Syria - require Security Council resolution for any legitimacy, even though there are deep-seeded reasons to believe in crimes against humanity, if not genocide (without accepting or rejecting the legitimacy of the claims, this BBC radio programme suggests the fighting is principally based on religious lines, with an intent to target and destroy groups based on religious affiliation; I may post more on that later).

If we hadn't had Iraq - and if we hadn't butchered is so badly, invading with no real strategy for leaving - would we have the capacity, the will and the desire to help more with Syria? Or is Syria the Rwanda to Iraq's Somalia - the resulting genocide / crimes against humanity / war crimes that come when we are too afraid to act because the last time we did it ended badly?