Monthly Archives: May 2009

Luban in the torture hearings

Here is my friend and former colleague David Luban being questioned about torture by Senator Lindsey Graham. The caption about “browbeating” is not mine; this was the only video clip I could find online, and I would leave viewers to make their own judgment.

Before this exchange, Luban had argued that the Bush Administration’s lawyers (Bybee and Yoo) violated legal ethics by providing extremely incomplete surveys of relevant law to their client, the President of the United States. Here Senator Graham asserts that Luban forgot to mention cases on the other side of the issue; thus if Yoo was unethical, so was Luban. That’s like receiving a bad grade because you forgot to mention several crucial facts in an exam. Your professor shows you what you left out, and you reply that he is just as bad because he forgot to mention some points in favor of your conclusion. But he’s not writing an exam; he’s grading yours. I guarantee that David Luban could provide a complete and balanced summary of torture law if that were his job. (Senator Graham wouldn’t like the conclusions, however.)

Here is David patiently explaining why the “torture memos” violated legal ethics. And this is David being questioned on the same topic by Rep. Jerrold Nadler in a House committee hearing.

White House Office of Public Engagement

Since 1974, the White House has had an Office of Public Liaison. On May 11, it was renamed the Office of Public Engagement. The President said, “This office will seek to engage as many Americans as possible in the difficult work of changing this country, through meetings and conversations with groups and individuals held in Washington and across the country.” The front page of the website quotes the president: “Our commitment to openness means more than simply informing the American people about how decisions are made. It means recognizing that government does not have all the answers, and that public officials need to draw on what citizens know.”

This is an exciting development. All my work is premised on the belief that open-ended public discussions yield valuable and morally legitimate results that cannot be predicted in advance. I also believe that our most serious challenges require public work and that we are burdened by poor relationships between citizens and government and among citizens. So it will be very valuable to have diverse, constructive, open-ended conversations that involve the American people and the executive branch.

We know today how to organize such discussions. Practical tools and insights come from groups like AmericaSpeaks, the Kettering Foundation, Public Agenda, and Everyday Democracy; from the more flexible and pragmatic community organizing groups; from local governments that have engaged their own citizens effectively; from certain successful projects in federal agencies like EPA; from other countries, like Brazil and Uganda; and from the Obama Campaign’s online tools.

So I salute this development. I do, however, see two risk that we outside the Administration should monitor and help with. First, there is the risk that an office named with the phrase “public engagement” could actually turn into a PR and persuasion office of the administration. That would be a blow, because it would cheapen an important concept. The Administration has a right to sell its proposals; but that is not “engagement.”

Second, I fear a tendency to reduce “engagement” to two-way communication. The President talked about “the difficult work of changing this country.” But the next sentence in the OPE press release glossed his comment thus:

    OPE will help build relationships with Americans by increasing their meaningful engagement with the federal government. Serving as the front door to the White House, OPE will allow ordinary Americans to offer their stories and ideas regarding issues that concern them and share their views on important topics such as health care, energy and education.

I am skeptical that people (including me) are motivated to discuss issues–or are adequately informed about issues–if their only opportunity is to “offer stories” and “share views.” We also need concrete opportunities to work on projects. Work is motivating and educating. Today, it may involve typing or talking rather than digging or cleaning, but it needs to feel like a direct contribution. That is why I would tie the public engagement function of the White House to the tangible work that Americans are doing with stimulus funds.

nonviolence and the Palestinian cause

For several months, I have been thinking of a post about nonviolent resistance in the Palestinian territories. I’m finally writing now because of a thoughtful and well informed article on that very subject: “The Missing Mahatma: Searching for a Gandhi or a Martin Luther King in the West Bank,” by Gershom Gorenberg in the Weekly Standard.

I recommend the whole piece. It reinforces my sense that a nonviolent struggle could produce a Palestinian state on somewhat more advantageous terms than are now available. One could say that Israel is “vulnerable” to a nonviolent strategy, but equally Israel needs to escape from the nightmare of occupation. The Jewish State seems incapable of achieving a resolution by itself–which may be the nature of a master/slave dialectic–so a nonviolent victory for the Palestinian cause would also be the best thing that could happen to, and for, Israel.

Gorenberg documents what I already knew in less detail: there are, and have long been, nonviolent Palestinian resistance efforts. They are usually small-scale and always overshadowed by violence. That is hardly surprising. Nonviolence takes tremendous commitment, coordination, and discipline. Nonviolent efforts are very easily broken up, discouraged, or overshadowed by forces on either side of the conflict that prefer violence. Successful nonviolent campaigns are exceedingly rare. The Palestinian case is typical rather than strange.

For me, the core principle is not nonviolence. I’m glad we invaded Normandy in 1944, and I hope the Taliban loses on the battlefield. I’m not a pacifist, but I do think that self-limitation is crucial. Lord Acton was right; unlimited power corrupts. Revolutionary struggles (the ones that aren’t crushed) typically end in tyranny or fratricide, because their leaders can’t stop using the tools that have brought them to power.

We could even view liberal democracy as a device for promoting limited political movements. There are enough openings at different levels of a democracy–and enough civil rights–that political causes don’t automatically fizzle out. Yet each movement is always checked by its rivals, causing it to be limited and disciplined. The Palestinians don’t have a democratic context in which to organize. Their leaders and partisans must limit themselves, must set their own rules. Fatah is a case study of what happens when they don’t. Within its own sphere, it is corrupt and violent. Beyond its domain, it is weak. If Fatah somehow wins, the Palestinian people will have to struggle to get a decent government out of it.

Nonviolence is an example of a self-limitation, but it is not the only one. The American revolutionaries of 1776 fought with guns, yet they showed admirable restrain that paved the way for a successful republic. In the First Intifada, the Palestinians managed to avoid guns and bombs in favor of stones for the better part of two years. The signature of the Intifada was children throwing things at tanks. As Gorenberg writes:

    The uprising was unarmed, if arms refers to guns and not to gasoline-filled bottles. The leaders of the uprising were “opposed in principle” to using firearms and explosives, says Yaakov Perry, who was deputy chief of the Shin Bet, Israel’s internal security service, at the start of the Intifada and became head of the agency soon after. The uprising’s leaders deliberately sought to turn weakness into political strength, knowing that “in the international arena, Israel could not deal with the picture of the boy holding a rock facing a tank,” Perry says. This is close to Gandhian logic, but only close, unless one imagines Gandhi urging followers both to go on strike and to master the slingshot. Unarmed did not mean nonviolent.

I think the tactics of the First Intifada could be effective today, but true nonviolence would be better. I say this not because of an ethical scruple but because of the nature of collective action. To get people to do something very hard, and all at the same time, requires a very clear definition of what they must all do. You need a bright-line test, or else individuals will start pushing the limits, and discipline will break down. “Don’t ever hurt anyone physically” is a clear rule, a bright line. Using stones and Molotov cocktails but no bombs is too vague and ad hoc; it invites escalation.

Of course, a clear definition of rules is not the only condition of success. Leadership is also essential, although I think Gorenberg somewhat overestimates the individual contribution of Martin Luther King. (There were many other key leaders in that movement.) He does recognize the importance of a third factor: ideological commitment to nonviolence itself. When we face brutality and oppression, the temptation is overwhelming to strike back. (“I and the public know / What all schoolchildren learn, / Those to whom evil is done / Do evil in return.”) It helps enormously if participants in a social movement believe in nonviolence (or in other serious restraints)–not just as wise precautions or clever tactics, but as deep moral imperatives. For instance, it helps if they think that God wants them to turn the other cheek.

Islam is not more violent than Christianity or Hinduism. All three religions are generally soaked in blood, and Islam has modeled tolerance and restraint as often as the others have. But it helped both Gandhi and King that there were minority traditions in their own faiths that were extreme and radical about pacifism. As King asked rhetorically from the Birmingham Jail, “Was not Jesus an extremist for love? ‘Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.'” Franciscans, Quakers, and others before King had made rigorous pacifism a tradition that he could evoke. Although there are certainly peaceful and peace-loving traditions in Islam, I’m not sure there is anything as uncompromisingly and ascetically pacificistic as we find at the margins of Christianity and Hinduism.

But Palestinians have an opportunity to create their identity out of nationalist, ethnic, religious, and cosmopolitan strands. As for their majority religion, Sunni Islam, it is dynamic and flexible, as all faiths are. Gorenberg shrewdly writes:

    Religious traditions come blessed with contradiction. The Hebrew Bible declares in the Book of Isaiah that “in the days to come .??.??. they will beat their swords into plowshares.” In the Book of Joel it proclaims, “Beat your plowshares into swords, and your pruning hooks into spears.” For the individual believer, there is an “essential” Islam, Judaism, or Christianity constructed by taking one part of the tradition as obvious truth, interpreting others in its light. Seen from the outside, a religion is only a set of possibilities.

If Palestinians could develop the pacifist possibilities that are available in their various traditions, the future could be much better for them, and for the world.

straight out of Dorchester

I was at U-Mass Boston today, watching videos produced by students in the Asian-American Studies Program. The videos were autobiographical and effectively raw: stories of child abuse, drug addiction, bullying. The students presented their work as a political act. They had made media instead of consuming it, thereby telling their own stories their own way.

I agree: although the personal doesn’t exhaust the political, to present yourself publicly is an important aspect of politics. As Hannah Arendt argued, to inhabit an identity fully and to have full individuality requires being able to display it for others in a public space–something that mass media culture frustrates. “In acting and speaking, men [and of course also women] show who they are, reveal actively their unique personal identities and thus make their appearance in the human world.”

The students whose videos I watched were self-conscious about defying ethnic and gender stereotypes, but one could say more generally that whenever human beings tell their personal stories–even briefly and simply–a challengingly complex reality emerges. I will give just one example of the complexity I learned about today. Several of the videos were made by Vietnamese-American men from the Boston area. They spoke in, I would say, a pervasive and credible version of an African-American urban youth dialect. They used the n-word to describe one another and said things like, “we all be gangbanging.” Vocabulary could be borrowed superficially or clumsily, but I noted subtler influences. For example, one young man was describing a fight that had led to a fatal shooting. On camera, he relived his own efforts to stop the violence. As he said, “Yo, calm down,” in a deep, serious voice, he partly raised one hand, palm outward; his eyebrows rose; and his eyes locked onto the viewer in a way that reminded me profoundly of an African-American man in a similar situation. But the murdered teenager was given a proper Vietnamese burial back in his birth country. Out of such mixtures and borrowings, parodies and homages, we make meaning, identity, and community.

Steve Teles’ The Rise of the Conservative Legal Movement

Steve Teles’ book The Rise of the Conservative Legal Movement was the subject of a recent symposium on Crooked Timber. It’s a fine book, specifically about the movement that pushed the federal judiciary rightward after the 1970s, and generally about why political movements succeed and fail. I think it’s especially valuable reading for liberals, who could learn many detailed lessons and at least three major points.

First, it’s a mistake to think that the conservative legal movement was successful because it was very well funded or especially canny and disciplined. Actually, funding for liberal legal scholarship, advocacy, and teaching far exceeds what conservative intellectuals ever had (especially if one counts the salaries available to liberal law professors); and the conservative movement made many tactical and strategic mistakes. They had diverse strategies and goals that were never very coherent. Some of their success came from what Teles calls “spread-betting.” They put money and effort into law-and-economics, into religious conservatism, into original-intent jurisprudence–mutually inconsistent ideologies–and every now and then they hit the jackpot.

Second, we on the outside of conservatism tend to associate it with powerful figures like Bush, Cheney, and Scalia; we argue that their views are favorable to the interests of the richest and most powerful tycoons and corporations; we observe them win on specific issues; and so we presume that we are dealing with a dominant, even hegemonic force. Whether conservatism actually has a privileged position is open to debate; it certainly loses many of its central causes. In any case, conservative thinkers do not feel dominant. On the contrary, they see the world much as other marginal movements do; they believe that the rules of evidence, the framing of questions, and such practical issues as who gets tenure and grants, are all stacked against them. Influenced by Steve Teles, I have previously made an analogy between conservative legal thought and feminism in the 1970s. Even if you are only trying to understand conservatism as an enemy, you should grasp its proponents’ psychology. Overall, I think they feel much more beleaguered and defensive than hegemonic.

Third, Teles makes some shrewd observations about how conservatives spend money. In the Crooked Timber symposium, he writes:

    Mark [Schmitt] starts his essay out by quoting Ben Barber, to the effect that, “When we care about something, we waste money on it.” Yes, absolutely, but as Mark knows better than anyone, there are better and worse ways of wasting money. In my experience, liberal-ish foundations often waste money precisely by trying to be too “responsible” with the funds under their control. They make grantees write huge proposals, go through complicated “evaluations” that are often inappropriate to the fields of advocacy or scholarship, give money for individual projects rather than general support (which makes building a strong organizational culture almost impossible) and just generally infantilize and get in the way of their grantees. Conservatives did not waste their money this way. Rather, their waste came from what I call “spread betting” (a term given to me by Mark Blyth)—throwing money at a bunch of different projects, letting the grantees run with their idea, and then seeing which worked and then doubling down. With a few exceptions, the conservative foundations were not the real agents of the story—they didn’t concoct a lot of “initiatives” or put out “requests for proposals.” They found people who seemed like they knew what they were doing, and then gave them the wherewithal to show what they could do with the resources.

My salary has been largely paid by “liberal-ish” foundations for nigh on twenty years, and I would certainly be glad if there could be simpler proposals, less evaluation, and more funds for core operating expenses as well as projects. In short, I would be glad if the liberal-ish foundations just bet on people–assuming I were one of the people they bet on. But that probably wouldn’t happen. My narrow self-interest may be better served by the current system of elaborate proposals, self-evaluation plans, and lots of little projects–because that’s the game I know how to play. Of course, liberal causes might do better using the conservatives’ investment strategy: my self-interest doesn’t necessarily coincide with the greater good. But it does strike me that grantmakers and successful grant-seekers have a mutual interest in the status quo, which partly explains why it doesn’t change.