Ryan J. Suto's Blog

04 November 2013

Moral Relativism & US Public Diplomacy (revised)

This update of an older post was written for the Public Diplomat and can be found here.

As the science of morality progresses, US public diplomacy should educate others despite any cultural differences.
Since the Age of Exploration, the dominant views of Europeans toward people who populated the other continents were paternalistic and ethnocentric — to not be Europeans and Christian instantly diminished the worth of a person or a belief. Relatively recently, the prevailing view in Europe and the West has shifted to become more tolerant — perhaps in reaction to the brutality of past injustices. In the extreme this has led to moral relativism, a judgment-free approach toward the values of other cultures. At present this view is ubiquitous in anthropological and sociological literature. As a modern, accepting people, so the argument goes, we shall not narrow-mindedly impose our morals on others.
But this argument assumes that morality is a subjective notion, or that there is no objective measure by which one can judge others actions or values. The only reason these assumptions have not been effectively challenged, argues Sam Harris in his book The Moral Landscape, is because we have an underdeveloped science of morality. Harris makes a key point: unknown is not the same as unknowable. Just because we have yet to coalesce on a singular measure of objective moral judgment does not mean that we will not be able to do so in the future. In light of the history of scientific and rational progress, we cannot say that the fields of neuroscience, evolutionary biology, and anthropology will never advance and be able to determine that certain actions, beliefs and principles are objectively counter to human well-being.
Can one say that rights of self-governance are objectively morally good?  Can one say that deploring despotic rule is merely a subjective preference, based on little more than culturally arbitrary preferences? One’s answer to these questions is vital to one’s view of public diplomacy. If the answer is that there is no objective truth on such moral questions, then why should the American people try to influence other cultures with portraying our values of democracy and human rights? If it’s for mere economic gain, why not sell the beaches of Hawai’i instead of
democracy and human rights? Surely vacation destinations are far easier to sell in places like China. If public diplomacy only functions to serve our subjective national trade or diplomacy interests, should it be valued as a legitimate field, or simply method of propaganda?
I view public diplomacy more expansively. The message of public diplomacy, like any other communication, must come from our ‘mission statement’ — the Declaration of Independence. The Declaration tells a candid world with what rights all people[1] were born — not just Americans. It discusses why all governments are instituted—not just the U.S. government. These are statements claiming objective truth! As such, I argue that any U.S. public diplomacy which flows from our organizational mission statement cannot be morally relative. And while the science of morality is underdeveloped, that does not mean that nothing is known. Harris compares morality to health: just as we know that eating only marshmallows is less likely to lead to a healthy body than eating a diet which includes leafy green vegetables and protein, we also know that enslaving or subjugating women or whole ethnic groups are less likely to result in human flourishing than equal rights and opportunities for all. For these reasons, U.S. public diplomacy should not shy away from strongly holding any cultural or political practice as superior to those which we know are wrong — especially as science progresses to advance our knowledge and understanding on these points[2].
In a sense, U.S. public diplomacy should not narrowly seek to advance our economic interests, but instead promote values which are objectively aligned with the promotion of human well-being. And as our understanding of human happiness and well-being advances, the more we will know about the science of morality, and the better we can conduct our public diplomacy toward educating others. “What right does the West have to tell a conservative Islamic country that women should not wear the veil?” one might ask. Someday, perhaps as much right as one has to assert that the Earth is an oblate spheroid and revolves around the Sun, and anyone arguing the contrary is simply wrong.

[1] I generally take “all men” to mean “all humans,” but even if Jefferson explicitly meant the male gender, the point still stands that it was meant universally to all men, not just American men.
[2] I don’t assume that the U.S. has any monopoly on objective morality. No study has shown that corporal punishment bestows any long-term benefit on any person, yet the U.S. stands as a country which frequently practices it. Science also requires flexibility and recalibration in the face of evidence.

10 October 2013

Former President Morsi’s Legal Liability for Incitement to Violence

This post was written for the Tahrir Institute and appears here.

In early September, former Egyptian President Mohamed Morsi and others in the Muslim Brotherhood were charged under Egyptian domestic law withincitement to the murder of protesters in December 2012. Egyptian authorities have provided no details of the evidence against him. However, Morsi and the Brotherhood were responsible for several other instances of incitement during their year in power, and a legal case can be made specifically regarding the incitement of violence against Shiites. 

Morsi neglected to enforce domestic criminal law by failing to denounce inciting speech by Muslim Brotherhood members and those in his presence during the Egypt-Syria Solidarity Conference on June 15, 2013. In the process, he violated international law and international obligations to which Egypt is bound. The result of Morsi’s abdication of duty was the killing of four Shiites in Egypt. 

The most widely accepted international standards of free speech are found in the International Covenant on Civil and Political Rights (ICCPR). Egypt is one of 167 states parties to have signed and ratified the 1966 ICCPR. Article 20 in the ICCPR states, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Article 20 goes on to name group hatred as to be prohibited by law. The language here is strong: an international treaty is directing domestic legal prohibitions of expression. This is not suggestive or aspirational language most commonly found in international documents; this language is mandatory.

Next, the Convention on the Elimination of All Forms of Racial Discrimination (CERD), also a 1966 document, has 175 states parties, one of which is Egypt. The CERD says that all states parties shall declare punishable by law “all dissemination of ideas based on incitement to racial discrimination, acts of violence or incitement to violence against any group of persons of another color.” The document goes on to proscribe any organizations or governmental institutions themselves which may create such utterances. The CERD is applicable here because in 2008 the UN Human Rights Council (UNHRC) passed a resolution that reaffirmed that the CERD was equally applicable to incitement of religious hatred.

In 2011 the Organization of Islamic Cooperation (of which Egypt is a member) introduced a resolution, which was adopted by the UNHCR, on discrimination and free speech. Point 3 of the resolution condemns “any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence…” Point 5(g) of the resolution demonstrates “…the need to combat denigration and negative religious stereotyping of persons, as well as incitement to religious hatred…”

The preceding sources all point to an international legal consensus on the issue of incitement—they all condemn the advocacy of group hatred. It is important to note that an imminent physical manifestation of such hate is not required—the intent to cause hatred toward a group itself is proscribed. Hate speech can be restricted for reasons such as respect for the rights of others and public order. Incitement to discrimination, hostility or violence are also prohibited.

However, international standards are not the only relevant measures of incitement in Egypt. A part of Egypt’s complex legal system is the Penal Code, which dates from 1937. The Code is periodically updated andremains in force to this day. The Code criminalizes the use of religion in public incitement or the mocking or ridicule of religion in public. Specifically, article 98(f) proscribes the use of religion in propagating by speech extremist thoughts aimed at instigation division or disdain, and article 176 criminalizes the incitement to hate or deride a sect of people. 

The 2012 Annual Report of the United States Commission on International Religious Freedom pointed out several incidents in 2011, one of which Morsi was in the presence of incendiary speech, but failed to denounce it. The report notes an October 19 statement against Jews, and several statements against Copts, such as on November 4 and 22. The 2013 Report found no improvement, and wrote that in the early months of 2012, an increase in government-funded mosques contributed to sectarian tensions. 

Ikhwanonline reported that high-ranking Muslim Brotherhood members including Dr. Mohamed Wahdan stated at an event in April 2013 that, “that the Egyptian people and government would not allow the spread of Shiism in Egypt.” Similar comments were made at the Egypt-Syria Solidarity Conference on June 15, 2013. Morsi was in attendance, and the conference was initiated by prominent Egyptian Sunni clerics. Several clerics “labeled Shiites as ‘impure’ or ‘filthy’ and protesters as infidels.” Specifically, Ali Ahmed Salus referred to the Shia Assad regime in Syria as “atheists.” Mohammed Hasaan asked Morsi to not open the gates of Egypt to “deserters,” a derogatory term for Shiites. Hasaan further noted that jihad is the obligation of able Muslims. Mohammed Abdel Maqsud spoke of June 30 as a fight against infidels. Former President Morsi spoke last and did not denounce any such remarks. While Morsi avoided direct incitement, his Muslim Brotherhood encouraged listeners to engage in jihad against theShiite government in Syria.

The language used by Muslim Brotherhood-associated clerics and those who spoken in front of former President Morsi falls on the president’s responsibility to denounce such incitement. A head of state is expected to hold such speakers responsible under the domestic Penal Code, and such an omission subjects the Muslim Brotherhood and Morsi to international legal liability.

The language heard at the conference clearly constitutes the use of religion in speech for extremist thoughts aimed at instigation division or disdain, which is specifically proscribed by Egypt’s Penal Code Art. 98(f) and 176. As the CERD clearly proscribes groups (such as the Muslim Brotherhood) which may create utterances that disseminate ideas based on incitement to group-based violence, the Muslim Brotherhood is in violation of that document, and should be subject to legal punishment. It is important to repeat that Morsi is a member of the Muslim Brotherhood. Further, the language also violates Points 3 and 5(g) of the Resolution Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief. They proscribe advocacy of religious hatred that constitutes incitement to discrimination, hostility, or violence, and requires the government to combat religious denigration and incitement to religious hatred. Lastly, the ICCPR, a legal treaty signed and ratified by Egypt, requires that state parties prohibit advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence. 

Morsi’s lack of enforcement of both domestic and international law was not harmless. Eight days after the speeches at the stadium four Shiites were lynched in a Giza village. Human Rights Watch (HRW) wrote that Morsi, “failed to make it a priority to create a strategy to protect religious minorities and has failed to speak out against months of hate speech against Shia.” A local village official told the Arab Network for Human Rights Information (ANHRI) the Shiites were targeted because, “The sheikhs from the mosques went out last Friday and said that Shiites are apostates and we have to kick them out of the village.” HRW noted the actions of the police to protect the Shiites in the wake of the incitement was insufficient, as were the responses from both the government and the Muslim Brotherhood. The Muslim Brotherhood has been responsible for religious-based incitement to violence in the past, as well as immediately before the bloody killings of June 2013. Former President Morsi knew, should have known, or had a substantial certainty that violent actions would follow from the words of his supporters spoken in his presence—yet he did nothing. 

As such, by not denouncing the inciting speech of those from his own party or those who spoke directly before him at a major conference, former President Morsi failed to enforce domestic law and failed to uphold his international legal obligation as a head of state under the ICCPR and other international obligations to which Egypt is a party. 

17 September 2013

A Constitution Day Plea against NSA Surveillance

This was posted on the Tully Center for Free Speech's blog Free Speech Zone, and can be found here.

Today is Constitution Day, which marks the 226th anniversary of the ratification of the document which forms the legal outline of our society. This document includes values such as limited government powers, inter-branch checks and balances, and the personal right to be secure in one’s effects. Today is the day to reflect on how poorly we have done to maintain these values.
While government surveillance and opacity are not wholly new, the recent revelations of NSA metadata collection and activity exceeds the scope of all previously known examples of government overstepping. The National Security Administration (NSA)  routinely engages in the compilation of information on both domestic and foreign communications, acting inconsistently with the Foreign Intelligence Surveillance Act (FISA). More importantly, in October 2011, U.S. District Judge Bates wrote that the NSA acquires information with “substantial intrusions on Fourth Amendment protected interests.” To do this, the NSA has not only created an array of data collection technologies, but has also co-opted private data collected by complicit corporation. The NSA has hacked into the United Nations and has given your private information to the Israeli government. How can any American feel secure in his or her personal effect?
One might respond that we are in a time of war, exempting us from Constitutional limits on the grounds of necessity. However, the horrors of war were just as real to those who fought the Revolutionary War and created our founding documents as it is now for those who witnessed the horrors of 9/11 and face endless threats to domestic tranquility. We must remind ourselves that those documents originate from the cauldron of war by people who surely faced death if their revolution proved unsuccessful. Their values remain as true today as they did over two hundred years ago.
Any law is only as good as its enforcement, and the Constitution is no exception. We must  stand and assert our fundamental rights if we fear their erosion. Earlier this month the Associated Press reported that nearly 60% of Americans oppose the NSA’s metadata program. But without constituents in the streets and anger in their inboxes, our representatives have no incentive to challenge the current national security structure. As such, action is required to show Congress our disagreement of these programs. I call on all Americans to join the Stop Watching Us Coalition and Restore the Fourth in Washington, D.C. during  the weekend of October 26th for a day of action against the NSA’s mass surveillance. This day marks the anniversary  of the USA PATRIOT Act, legislation passed in response to the 9/11 terrorist attacks aimed at shaking our great nation’s strong foundation.
America is indeed an exceptional nation, full of amazing people and unthinkable potential. But if we the people don’t hold our government to its Constitutional limits of power, our liberty will be irreparably eroded by the fear of a possible enemy at the gates. As such, we must realize now that the true enemy of liberty comes from within–our own complacency.

04 September 2013

Seven Mistakes of English that make me instantly stop listening or reading

Insensitive? Possibly. Arbitrary? Maybe. Steeped in privilege and arcane notions of propriety? Sure. But regardless, for some elitist reason I cannot get past these commonly made mistakes in English. Whether others have the same rules and pet peeves as I, everyone will judge you in some way for how you speak. And believe it or not, you judge them, too.

1.       Pronouns are for back-up. Only use ‘it’, ‘they’, ‘them’, etc. when that which is being referred to is explicitly clear.

2.       Proper verb conjugation. There’s two? No, there are two. This one is so simple, I really don't understand the issue here.

3.       Adjectives v. adverbs. He didn’t run slow. Don’t grab your coat quick. He ran slowly. Grab your coat quickly. File ‘well v. good’ under this, too.

4.       Their and They. These words always refer to more than one person. They are NOT gender neutral singular pronouns.

5.       Correct plurals. Criteria are many, criterion is one. Media are plural. Data are too. Alumni are as well. (Bonus: ‘alum’, unless you’re discussing chemistry, is not a word. Never use it. Ever.)

6.       Sentence subjects. ‘Checked the door’. ‘Wasn’t there’. Uh, what checked the door? What wasn’t there? Even if you think the subjects of these incomplete sentences are made clear by previous reference, they are not. You need a subject here.

7.       I and Me, Who and Whom. I and Who are subjects, Me and Whom are objects. Use them as such.

Now of course I have made all of these mistakes at some point in my adult life, but once I notice I feel dirty and embarrassed. How can one notice mistakes and thereby improve one’s English? There are two ways to notice mistakes: having an ‘ear’ for correct English, and knowing the formal rules of English. The former simply means having your Colbert-gut attuned to recognize mistakes, while the latter is the nerd version which will note that a coordinating conjunction should only be used to join two independent clauses. If you didn’t grow up with parents who used near-perfect English (I love my parents but they know nothing of grammar), the best way to develop and ‘ear’ for it is to read it and listen to it. If you didn’t have grammar education in high school (I must admit I did), buy this. 

Regardless of what technological advances come (except perhaps direct thought propagation) language will continue to be important. And until human nature changes, people will continue to judge others on how they speak. The criteria, though, will change, of course. Like education in general, language is a lifetime process that requires constant attention, but for me it has been well worth the effort.

03 September 2013

Who's to Blame For the Surveillance State? Here's the Hard Truth

This post appears on PolicyMic.com and thus can be found here.

Americans are told that the United States is a nation governed by laws, not men. We praise our peaceful transitions of power and our checks and balances. But while we are not ruled by the arbitrary whims of individuals, our laws are not actually what dictate our government’s actions. Instead, we are a nation governed by fear of terrorism. This has led us down a foggy road, opaque with tactically questionable and illegal National Security Administration (NSA) surveillance. Now, our best chance of bringing transparency back to the U.S. is to work within the political system to bring real change to law and policy.
Recent leaks, information releases, and other revelations have shown that Americans have no information about the actions of our own government. Specifically, the NSA’s "metadata’" program of compiling massive databases of information on both domestic and foreign communications is inconsistent with the Foreign Intelligence Surveillance Act (FISA), which was passed to prevent the executive branch from engaging in over-broad domestic surveillance. In order to achieve such a database, the NSA has co-opted complicittelecommunications companies, as well. All the metadata collected could not possibly be relevant to any specific investigation, allowing the executive to unlawfully engage in the collection of personal information on U.S. citizens.
FISA itself is flawed as well. The U.S. legal system is designed to be adversarial: two opposing parties attempting to point out holes in the other’s arguments. In theory, this process allows for the truth to be discovered by the judge or jury. The FISA court does not generally work this way, however. The government presents classified information to the court, with no effective oversight beyond that the government has “simply dotted its i’s and crossed its t’s.” Thus, with no opposing counsel or public scrutiny, the nation’s national security apparati are allowed to operate unchecked by any truly independent body or individual. We now know that in October 2011, U.S. District Judge Bates wrote that the NSA acquires information with “substantial intrusions on Fourth Amendment protected interests.” Internal executive branch checks are not constitutionally or democratically sufficient oversight for programs such as surveillance and drone operations.
Those who point out the dangers of this lack of transparency and public scrutiny of our surveillance programs are not simply clinging to outdated notions of rights and liberties. In the name of the American people, the NSA has also hacked into the United Nations and the European Union. Along with these supra-national organizations, our spying programs have strained our relationship with Germany, a key economic ally. Perhaps more troubling, the very structure of these surveillance programs give officials no sufficient ability to separate purely domestic communications from those which involve non-U.S. citizens. In fact, the Drug Enforcement Administration (DEA) is using NSA-like legal tactics to collect NSA-like metadata for domestic law enforcement purposes.
America is now living in a time period when citizens are being knowingly surveilled. This is Jeremy Bentham's Panopticon — an institution with a ubiquitous and controlling gaze. Michel Foucault pointed out that living in knowing surveillance leads humans to internalize the institutional rules — that is to say, we begin to act as our surveillers wish us to act. We grow numb to the invasions of personal privacy and accept our role within the state apparatus. This does not sound like a democracy where citizens exert ultimate control and authority over the functions and actions of the government.
I wish to alter Julian Assange’s statement, “privacy for the weak and transparency for the powerful,” to say instead, privacy for the people and transparency for the state. This statement reflects a truth which can be inferred by the philosophy, structure, and very texts of our Constitution. Regarding privacy for the people: the Fourth Amendment protection against unreasonable search and seizure, the Fifth Amendment right against self-incrimination, and the Ninth Amendment protection of personal freedoms. Regarding transparency for the state: the First Amendment freedom of the press, the president’s Article II duty to report on the state of the nation, and the democratic requirement that the people must make informed decisions when voting for or against government officials. Privacy for the people and transparency for the state are requirements to ensure government is subservient to the people who established it.
Whistleblowers like Chelsea Manning, Edward Snowden, John Kiriakou, and others have taken extralegal steps to bring government abuses to the attention of the public. These revelations have not yet inspired mass action in the American people — save, perhaps, for the Restore the Fourth movement . Thus, the American people must be mobilized in order to create a sustained push for sufficient transparency in governance to ensure the protection of our constitutional rights. As Congress returns to work for the fall session, citizens must exponentially increase our activism toward forcing a revolution in how the government conducts its surveillance activities. Without constituents in the streets and anger in their inboxes, our representatives have no incentive to challenge the current national security structure.
But we cannot continue to only work on the outside looking in. We must work within the political system in order to effectively bring change to the U.S. The wholesale structural change needed in the federal government to roll back the privacy abuses of the past cannot come without more allies within the halls of power. Think to yourself, which movement has brought more change to the U.S. political landscape: the Tea Party or Occupy Wall Street? The Tea Party did, by recognizing how to play the game of politics to get what they want. As such, formalized organizations which can either put forth or endorse political candidates for federal office must be created and supported broadly.
Walking down the opaque road of secretive governance and diminished liberty should strike each of us as inherently un-American. But you can’t challenge the government unless you challenge yourself. You can’t change the country unless you change yourself. As Cory Booker said in a speech in Washington on Saturday, democracy is not a spectator sport. We each must materially support nationwide organizations which have the structural ability to move Washington toward a more perfect America. In the words of Lt. Ehren Watada, this is an obligation, not a choice.

27 August 2013

Egypt's Experts Propose a Constitution — and It's Not a Good Start

This post was written in my capacity as Research Associate for the Tahrir Institute for Middle East Policy, and can be found here.

The 10-person expert committee charged with making recommendations for a new or revised Egyptian constitution finished its task this week. The draft constitution will now head to a larger, 50-person committee for further review or changes before being sent to be voted on by the Egyptian people. While other recommended changes, such as those regarding gender equality, application of sharia, and the nature of political parties, get more attention, the design of the legislature will be the focus of this article. Despite the committee being composed of law professors and judges, the proposed new structure is not only remarkably simplistic, it is unimaginative. The recommended changes are also ill-suited for the realities of Egypt, and if they are retained by the larger committee and affirmed by the people, they could lead to long-term trouble for the country’s political landscape.
The unicameral, majoritarian structure of the legislature lacks imagination. It is simply the oldest and perhaps least democratic design the committee could have selected. By "least democratic," I mean it will likely seat politicians in proportions that are not reflective of the will of the people. As Zaid al-Ali has written before, there will likely be no legal revolution in Egyptian elections or legislative structures.
There are two main problems with the selected majoritarian system: manipulation and representation. First, a geography-dependent system can easily fall victim to partisan gerrymandering. Outside the U.S. context, gerrymandering was heavily used in South Africa before 1994. Next, representation is often skewed in most majoritarian elections. Of particular concern in Egypt must be the Christian minority. With only roughly 10% of the population, Christians will be hard-pressed to get elected in any districts where they are not a plurality of the population, as garnering 10% of the vote in a majoritarian district awards a candidate zero power. In a proportional system, however, 10% of the vote would gain a party 10% of the power, generally. Further, experience shows that most majoritarian systems structurally disadvantage female representation — an oversight Egypt cannot afford. This system will give power only to those who can garner a majority of support in each district, which risks the disenfranchisement of the many smaller political factions which exist in Egypt. I have recommended before that the committee find a more inclusive political structure for such a divided society. 
Perhaps the most frustrating aspect of the current situation is that there are so many less flawed systems from which the committee could have chosen. Egypt’s previous constitution featured a mixed systemwhereby one-third of the representatives were elected by first-past-the-post and two-thirds were elected by proportional representation (PR). While some might recommend pure PR in divided societies, such a system precludes both geographic representation and the creation of an individual accountability nexus between citizens and their legislators.
The system I'd propose for Egypt would be a proportional representation system with open provincial lists. In such a system, each of Egypt’s 27 provinces would have open lists featuring local candidates. This would require each party contesting in a given province to present a list of local, party-approved candidates. The number of seats given to each province would be proportional to their populations. This system would allow for individuals from each province to be represented in Cairo without the concern of gerrymandering (so long as the provincial boundaries remain) while still creating multi-member districts in which women and political and religious minorities have real chances for meaningful representation. This system’s open lists would allow voters to have control over which individuals are seated, thus increasing party transparency and helping to ensure that those seated are truly selected by the people they represent.
While my suggestion is by no means the only good solution, it seems the experts chose the worst one. A pure majoritarian system will give disproportionate representation to larger parties and to the parties that can organize and mobilize best. Ironically, assuming that neither are functionally banned, the likely beneficiaries of such a system are the Muslim Brotherhood’s Freedom and Justice Party and the National Democratic Party of former President Mubarak. While a constitution alone does not make a democracy, a poorly written constitution can severely cripple one. Egyptians, unfortunately, know this better than most.

16 August 2013

The Obama Effect in the Arab World

This academic paper was written for the Exchange: The Journal of Public Diplomacy. The PDF of the paper can be found here.


This paper tests the Obama Effect hypothesis with respect to the Arab World. The paper first presents the popular uses of the term and then discusses the thin scholarly literature on the topic. For quantitative data, the paper uses longitudinal data from the Annual Public Opinion Poll from 2004 to 2011, with supplemental data from the Pew Research Center. Furthermore, the paper analyzed data on the Arab Spring in the context of a possible Obama Effect and policy implications for the future of U.S. foreign policy. The paper found insufficient support for the hypothesis due to a lack of theoretical foundation or statistical support in the Arab world. It should be noted that this study was limited due to the lack of survey questions tailored to test this specific hypothesis. Lastly, the paper made suggestions for future U.S. foreign policy in the Arab world as well as for future research.

25 July 2013

Four Recommendations for Egypt’s Constitutional Process

This post, written in my capacity as Research Associate for the Tahrir Institute for Middle East Policy, can be found here.

Ten legal experts—six senior judges and four well-known constitutional law professors—have been given only one month to work on the daunting task of amending the existing constitution. The interim president’s constitutional advisor stated that these legal experts comprise the sole authority capable of officially proposing amendments to the constitution; outside groups and the general public have only one week to offer suggestions to the committee. Thereafter, a larger committee, intended to be representative of the varied social and political groups of Egypt, will have two months to review the proposed changes and consider the entirety of the document before it is put up for a national referendum

This accelerated constitutional process puts Egypt at an important moment in history, one where it must both reconcile the conflicts of the past and create the legal structures for the future. These are two inter-related, but ultimately distinct, challenges. Egyptian power brokers must rebuild and legitimize institutions such as the presidency, the legislature, and the judiciary in order to prevent the conflicts that brought Egypt to June 30 in the first place. To best ensure that mass protests do not fill Tahrir again in 2014, the constitutional drafters should learn the lessons of otherconstitutional experiences, such as those of South Africa and Cambodia, which can help guide Egypt forward. 

First, it is encouraging that from the beginning of the most recent process, the military has pledged to put the constitution to a popular referendum before parliamentary elections occur. Public participation in the constitutional process, however, seems to be again lacking. This was amajor flaw in both the writing of Egypt’s 2012 constitution and in Cambodia’s constitutional experience—a lesson from which the current government seems not to have learned. The Egyptian street must feel that its voice has been heard by any government hoping to claim legitimacy. However, all of the members of the committees involved in the constitutional process have been (or will be) appointed by the interim government. Though the government’s constitutional declaration requires that the committees have a broadly representative, technocratic membership, the Egyptian people have not had direct input in this important part of the process. 

Second, the new constitution must allow for power-sharing. That is, in addition to involvement in the creation of a new government, all groups must also have a stake in its success. The current process suffers from a lack of participation by the Muslim Brotherhood and many related entities; these groups represent an important segment of Egyptian society that isrefusing to recognize the new government. Without all major political actors on board, conflict will likely continue, and the Brotherhood may become a spoiler to future governance processes. Indeed, the organization has said before that negotiations cannot progress without Morsi’s reinstatement as the president, an obvious non-starter for both the military and those who took to the streets on June 30. 

Of course, getting the current governing factions and Islamists to submit to the same institutional constraints will not be an easy task. If representatives from groups like the Muslim Brotherhood/FJP or the Nour Party are ultimately included in the larger constitutional committee, then the likelihood for wide consensus around issues like gender quotas and the role of sharia would decrease. This can be acceptable; as such political questions are more properly sorted out after representatives are duly elected. Leaving such questions to the legislature can help to encourage capacity-building within parties seeking legislative seats; it also limits the number of up-front tasks involved in constitution building. 

There are limits to what should be able to be compromised, of course.Unlike the previous constitution, which was largely written by Islamists, the new document must include sufficient human rights protections for all Egyptians, including religious minorities and women. Moreover, the powerful executive office that Morsi created must not be allowed to remain. Real legislative checks over the presidency, in addition to promoting good governance, would allow more Egyptians to feel that their voices are being heard in the halls of government. Along these lines, it is important to note that the small “expert committee” charged with amending the present constitution contains no women, though the yet-to-be-named fifty-person committee must include “ten members [representing] young people and women.”

The third recommendation is that the military, the current government, and the new constitution must ensure that democracy is “the only game in town.” To do so, they must marginalize violence and clearly denote extra-constitutional governmental actions as unacceptable. In short, all actors must respect the rule of law.  The constitution must also make available effective avenues for the people’s voices not only to be heard but also to be  translated into institutional transfers of power—such avenues include citizen initiatives, referenda, and other forms of direct democracy. Transitional justice is also an immensely important task, especially as calls for Friday demonstrations increase. Real options, such as truth commissions, an independently-administered media watchdog organization, and national dialogues should be kept open for exploration. Processes must be created to help reconcile the deep divisions created among all Egyptians who have been victimized by the extremist politics of the past several years. While it would appear Mohamed Amin al-Mahdy has been given this task as Minister of Transitional Justice and National Reconciliation, his mandate and scope of duties remain unclear."

Lastly, real local governance should be created in Egypt. Presently,governors are appointed by the president, and they are often retired members of the military or police. Governors, municipal council members, and city mayors should be elected and given effective abilities to govern. Such decentralization of power would allow for local governments to provide more directly for their people, possibly allowing some of the many pressing political questions in Egypt to be addressed separately by smaller groups of Egyptians. Political decentralization would also likely result in economic decentralization, thereby decreasing the power of both the executive and the military’s “deep state” and  increasing the influence of average Egyptians. The lack of local political and economic power is arguably one of the reasons Egyptians have been flocking mainly to Tahrir and some regional centers in the first place—they have nowhere else to go to express frustration. 

If heeded, these recommendations could help Egypt prevent a recurrence of their recent experiences. It is important for the current government to remember that democracy does not simply equal elections, a reality that Morsi failed to acknowledge during his time as president. Democratization requires elite consensus on legitimacy, a culture that accepts politics (not force) as the method of determining power, and respect for the rule of law. However Egypt meets these challenges and answers these questions, one thing is clear: in the end, any successful solution must be a purely Egyptian one.

09 June 2013

You say you want a revolution. Well you know, that’s not gonna happen soon.

There’s been a lot of outrage over the recent revelations of NSA surveillance of US citizens with no reasonable suspicion of any particular individual of any particular wrongdoing. And there should be. In 2008 Obama presented himself as the anti-Bush, but between Guantanamo, drones, and domestic surveillance, he’s possibly more Bush than Bush!

While some are grappling with whether the program is legal, I view that as simply not the point. That’s not to say that assessing the legality of governmental action isn’t important, of course. But there are at least three standards by which a government action can be judged: legal, Constitution, and acceptable. Regardless of whether the program is legal, it’s simply not acceptable—and I’m very certain a majority of Americans would agree with my poorly articulated argument here. (I’ll leave the Constitutional argument for when I’m not studying for the bar exam and have sufficient time to go through the relevant case law in order to make a reasoned analysis. But our Colbert gut tells us this doesn’t feel Constitutional within the spirit of the 4th Amendment.)

I’d venture to guess that there are several areas of dissatisfaction a majority of Americans have with the federal government, which has been unresponsive to public opinion. But this grievance, I think, crosses party lines most easily. Because of the gradual decline of civil liberties since the passage of the USA PATRIOT Act—which has continued regardless of the partisanship of either the legislative or executive branches—many want  drastic change in our federal government’s power to unilaterally collect information on citizens without individual suspicion. Such change can either occur inside the system or outside the system. The problem is that to work within the system, we must repeal all these laws and court decisions. This would need to be an act of Congress to be either signed by the president or popular enough to override a veto. (Technically a Constitutional amendment is available, but that is harder still). But we’ve had the problem, best exemplified by Obama himself, of electing people who say they’re against such programs, but vote for them anyway.  Namely, any libertarian, progressive, or small-government conservative should not be supportive of such programs on ideological grounds. And yet  here we are.

So what’s the other option? A full-scale change of the status quo—that is to say, work from ‘outside the system’. Yes, some voices have asked about a new American Revolution or an American Spring. For better or worse, that’s not going to happen anytime soon. The governmental transitions academic literature tell us that GDP-per-capita is one of most strongly correlated variables to whether transitions actually occur. That is to say that wealth is a factor in whether full-scale revolt can actually lead to change. Why? Simply because extra-systemic change, especially full-scale revolt, questions the whole system itself. We know that when you've got nothing, you've got nothing to lose, but most of us have something, and so we feel we have something to lose in the event of real revolution. Sure, if you’re unemployed, have broken spirits, or have more debt than you can ever hope to repay, you’re fixin’ for  a revolution—because you might feel you have more to gain from a possible victory than you have  to lose  from either a victory  or defeat. But when you own property, or have a family to feed or have a pension, often that status quo protects you more than exposes you to risk. This is the force of moderation. The idea of being jailed for a short time as a political activist might be romantic to those with few responsibilities, but for many that means no food on the table for their children. 

As such, only when a plurality of Americans feels there's more to gain in overthrowing the status quo than to lose from the attempt, will something extra-systemic actually happen. We’re a far road from Tahrir Square. Evidence of this assertion being true might be as recent as the Tea Party and #OccupyWallSt movements. While there are many other important variables I won’t consider here, note that the Tea Party worked within the structures of governance, whereas #OccupyWallSt questioned them to the core. One was strategic, the other radical. Which has had more effect on American politics, I think, is clear. (Pssst! The Tea Party.)

The tragedy, of course, is that we have been jaded by the idea of change from within. That was the actual mantra of Obama, and now he’s the exact thing we want to change. 

08 June 2013

The Future of the Authorization of the Use of Force

This post earned an honorable mention in the Center for International Policy's Rethinking National Security blog contest. It will discuss the authorization of the use  of U.S. force beyond our nation's borders. While this issue doesn't often explicitly grab headlines, it is at the heart of many power struggles, political debates, and legal battles in Washington.

The U.S. Constitution first established a balance of power in this area. Art. I, Sec. 8 states, “The Congress shall have Power... To declare War...” This statement is supplemented with the later statement in Art. II, Sec. 2 that, “The President shall be Commander in Chief of the Army and Navy of the United States...” which is supported by the president’s authority to take care that the laws of the United States are faithfully executed. These lines are where power struggles between Congress and the President originate over the authority to use military force. It is clear that at a minimum the majority of the Constitutional Framers wanted to ensure that no individual could bring the United States to war.

However, history and circumstance have given a broad mandate of power with respect to foreign relations to the president; Congress began to become powerless in the realm of the external use of US force. During the Vietnam War public opinion ran against the foreign affairs preferences of the executive. This led to Congress passing the War Powers Resolution in 1973. This legislation requires the president to “consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Moreover, the president must notify Congress with the details of military action within 48 hours of the commencement of hostilities. Hostilities cannot last longer than sixty days without express consent of Congress, with a possible extension of thirty more days. The intent of this legislation was to require Congressional approval to military actions abroad where large numbers of American forces are in harm’s way.

This background shows a historical movement away from the formally declared ‘perfect wars’ of the past between states which existed in a dichotomous paradigm of foreign relations: war or peace. The reality of modern warfare is now moving toward a more subtle paradigm, which doesn’t fit neatly into categories of war or peace, but instead creates a continuum from total war to total peace, and which often involves non-state actors. The most recent large-scale U.S. military actions have been executed pursuant to specific enabling Authorizations for the Use of Military Force (AUMFs). However, many smaller actions have no explicit Congressional authorization. For example, the American involvement in the N.A.T.O.-led military intervention in Libya in 2011 did not result from any Congressional action. Legitimate arguments have been made regarding not only the Constitutionality of such an action, but also the wisdom of the unilateral authorization of the use of force abroad by one branch of the government.

This modern patchwork approach of legislation, utilizing the War Powers Resolution, various Court holdings, and AUMFs, does not offer predictable guidelines for any of the branches of government for creating policy, determining action possibilities, or judging either policy or action. At present the use of force is no longer a property of war but a tool of foreign policy. And in the post-9/11 environment of a desperate need for security, the executive branch has been given all the power it could desire in the realm of military action and national security.

As the present AUMFs fade into history, America continues to face challenges. Questions of the use drones, the use of force toward new terrorist organizations, humanitarian interventions in conflicts such as the one present in Syria, and resource protection in the face of global climate change will dominate the future of U.S. foreign policy and military action. All of these instances undoubtedly include the use of force, but fall short of formally declared war. However, the grand structures of law—the U.S. Constitution, The Hague Conventions, and the UN Charter—continue to only recognize the black and white dichotomy between war and non-war which has not been relevant since WWII. The problem that has needed to be solved for almost fifty years now is that there needs to be a comprehensive overhaul of how we use force beyond our borders. These challenges would be best addressed by a uniform and informed national security policy. Such a uniform policy must be created to maintain citizen oversight over governmental action while continuing to protect our nation from the evolving threats of the future.

A categorical policy of the use of force should include measurable variables such as: theatre, resources, time, possible ‘collateral damage’, and mission. Different stages of force application would have different requirements within each category—with perhaps ‘war’ having the most flexible standards. While writing a law is above my job description and pay grade as a law student, the lowest category  could be something like this: Category I: 1 country involved (must go to Congress to expand), no more than 1,000 US troops mobilized or $100 million used, completed within 3 months, no congressional advice or consent required to begin. As I have no military experience I fully recognize that these numeric limitations may have little bearing on reality, but I’m merely trying to illustrate the concept. The last category would just be war, where a full Congressional vote is needed. The WPR has a similar idea, but has too few options and is wholly too vague. At times law must be vague to allow flexibility, but I feel the past fifty years of foreign relations shows that flexibility has become too great to allow for predictability or constitutionally required consent of both branches.

While of course this is possibly unconstitutional, the Constitution specifically erects shared powers of war and war making. This is merely updating that sharing. In this context it remains important to understand the values and reasoning behind our Constitutional system: the president must have the ability to act quickly when needed, and Congress must agree to large-scale actions on behalf of the American people and to consent to the use of their money. Unfortunately law and policy change like a punctuated equilibrium—with very few punctuations. Moreover, Americans are generally afraid of drastic policy change, and thus won’t demand wholesale reform in these areas. This is partly why the Constitution has been amended so few times. However, this is a deeply important issue in both constitutional law and national security policy. It is my hope that the conversation on this topic continues to evolve. 

Carlos Arredondo: Boston Marathon Attendee Came to Victims' Rescue

This post was written for PolicyMic and can be found here

“You watch the videos of the carnage and there are people running TOWARDS the destruction to help out.” – Patton Oswalt
Much has been written about Carlos Arredondo, "Boston’s Cowboy," who has been ubiquitous in photographs and videos from yesterday’s tragic terrorist attack. But his story deserves to be retold.
Born in Costa Rica, Carlos came to America a self-employed handyman. A father of two, his oldest son, Alexander, joined the Marines because he was "Too poor to go to college," his stepmother stated. In 2004 Alexander was killed in Iraq at 20 years of age. Distraught, Carlos and his wife became ardent peace activists. They wished to spare other families the tragedy that had befallen them. At present, 6,648Americans have died in Iraq and Afghanistan.
But the wars have taken lives at home, as well. In late 2011 his remaining son, Brian, who never fully recovered from the loss of his brother, committed suicide. While Brian never served in the military, the effect of war on families has been heavy during the past decade. Eighteen veterans a day commit suicide. Less is known about the families they leave behind. Facing yet another unimaginably tragic loss, Carlos and Melida re-directed their energies to the cause of suicide awareness, especially those which are military-related.
While Carlos is also a Red Cross volunteer, he was at the Boston Marathon Monday primarily to support John Mixon, who was running in Alexander’s honor. As soon as the bombs exploded, Carlos ran toward the victims to help in any way. He can be seen here (use discretion) applying a tourniquet technique in order to save a victim’s leg. In an interview where he is clearly in shock and still covered in the blood of those he saved, he describes his terrifying experience.
The story of Carlos Arredondo has been inextricably linked to political questions Americans have been wrestling with for years: immigration, education costs, war, mental health, and the recent cases of mass violence. Because of this, many of us can find a personal connection to the Arredondo family. We can all put ourselves in their shoes. This is why it is powerful.
But why it is important is because Carlos displays the amazing resiliency of the human spirit to keep fighting. He has not shied in the face of adversity and tragedy. Instead, he and Melida have worked for nearly a decade to try to make this world a safer place. And yesterday Carlos unflinchingly put himself in harm’s way to save the victims of senseless violence.
Soon our nation will go through yet another round of mourning, followed by finger-pointing and political deadlock. While this is going on here in Washington, remember the story of the Arredondo family. That same human resilience and heroism Carlos has shown runs through each and every one of us. Ask yourself, how can I make this world a better place? While you may feel small, every individual can have a part in mending the wounds of our society.
And trust me, we are going to need all the help we can get.