This article was written originally for KABOBfest, and can be viewed here. Big shout out to the editors there for accepting this contribution.

I’ve never seen an Iraqi break dance before. But apparently Tim Arangon and Yasir Ghazi have.

You see, these New York Times reporters are truly on the cutting edge. They dig deep. They unearth the worms. They uproot the, well, roots. Everybody else is too lazy, or too stupid, to do any serious journalism. Everybody else covers the same old Negative Nancy material.

Iraq may still be a place defined by Islam, sectarianism, violence and political dysfunction, but here in this clubhouse, and at larger gatherings of rappers and dancers in Baghdad’s parks, are vignettes of another sort, defiant gestures of rebellion in a social order with little space for individual expression, especially of the sort draped in Western mores.

The New York Times? Nope. They don’t care about that stuff. They care more about Bruce Lee and Avril Lavigne (who?) – you know, the real barometers of development and democracy. The New York Times despises the hegemony of Islam, how it seems to suffocate its adherents, how it seems to reinforce their tribalism, how it eggs on the sectarianism of those crazy dudes who wear black turbans and yell to those crowds who wave flags and who jump up and down and occasionally beat themselves in this one funny time of the year because of some cooky old religious cookiness. No, the New York Times is different. They focus on what matters, what is truly important. The people. The youth. The society. The money. Break dancing.

“We are living in a tribal society, that is very religious, and this is against Islamic traditions,” said Aksan Adel Habeb, 28, outfitted in a Los Angeles Lakers jersey and white do-rag.

(Hey Aksan, you know what I think is against Islamic traditions? The lockout.)

In fairness to the Times, modernity and liberalism doesn’t just come about through hip-hop. Baroque symphony orchestras also drink freedom juice.  Nightclubs and hookah too. (Incidentally, I’ve been to the offices of the New York Times, and I can assure you they are so free that their secretaries do sheesha while jamming to Waka Flocka.)

It’s not just in Iraq where the Times does its signature documentary work. Courtesy of the Associated Press, the Times highlights Pakistani freedomlovers too, like Adil Omar.

“But hard-core rap like Omar’s laced with profanity and sexual innuendo is almost unheard of, and could even be dangerous in a society plagued by Islamist militants.”

Profanity! Sexual innuendo!

Growl.

I’ve noticed that every once in a while, the NYT produces one these kinds of articles in which some kind of imported musical tradition takes shape in a cooky, backwards tribal land, as evidence of the slow waning of the cooky toward the embrace of modern, inclusive, edgy democracy. That’s the power of ideology – the failure to imagine an alternate world, an alternate world where equality and hope and justice come in different flavors.

I’m not a relativist, nor am I an apologist. I don’t like incompetence, bigotry, or reactionary politics as much as the next person. But I also believe in self-determination and autonomy. I believe in agency and the power of communities to realize their goals, on their terms, without the nagging, pervasive, all-engulfing power of ideologies foreign to them.

In short, it’s not just about us. It’s not about how they live vis-à-vis us. It’s not about how we understand them on our terms. We shouldn’t ignore our sisters and brothers in Iraq or Pakistan, but we should allow them the space and the support to realize their aspirations.

Oh, I almost forget: I have seen an Iranian break dance, and, honestly, I hope to never see it again.

***

I recently finished reading this  piece from Sajid Khan, a public defender in San Jose, who gave his take on the Irvine 11 jury verdict.

I thought the most important sentence of Sajid’s article was this:

However, as much as people are condemning the jury verdict as unjust and a blow to free speech rights, it merely was the jury doing their job: applying the law, as stated, to the facts of the case.

I agree with Sajid.  Despite a great effort by the legal team for the Irvine 11, I had real concerns with the potential outcome of the jury trial.   As I saw it, the jury trial was where the defendants had the weakest shot of winning, specifically because the judge and jury were hamstrung by California Penal Code Section 403 and how it’s been interpreted in California courts.

The role of the jury is to be a finder of fact.  A jury is not supposed to determine whether a law is just or unjust, or whether it’s “fair” for someone to be punished.  All it is supposed to do is assess whether specific facts occurred as spelled out in the jury instructions given to the jury before they deliberate. (Note: As anyone who has sat on a jury can attest, jurors very often ignore this fact-finding role and instead decide a case based on any number of reasons, which is why jury trials are such a crapshoot).

A common example demonstrating a jury’s proper role is as follows: a poor, starving, about-to-die man steals and eats a single apple.  The law of this hypothetical land is that stealing apples is a crime without exception.  If his case goes to jury, the jury is not supposed to assess whether it’s “fair” to put the man in jail.  The jury’s role is simply to assess whether, based on the evidence, the man actually took an apple without paying and kept/ate it.  Issues such as whether the man was poor, whether he’d ever committed a crime before, whether he was a Nobel Peace Prize winner, all are irrelevant when it comes to conviction because the law of this hypothetical land is that “stealing applies is a crime without exception” (although these other facts can play a role in sentencing – that is determining the actual punishment for the conviction).

Similarly here, as I understand it, the very limited issue (aside from the conspiracy charge) at trial was whether the Irvine 11′s actions actually broke up and impeded the ability of Ambassador Oren to give his speech.  Limiting the issue to this narrow scope means that many of the other facts and issues become irrelevant – including whether the students were “speaking truth to power” (a quote from the defense’s closing arguments), whether the students were exercising their free speech rights, whether the District Attorney engaged in egregious selective enforcement, why CCP 403 was not invoked for other public events that were shut down by protests in the past (including one that many of us have personal recollection of in which UCLA students shut down the entire 2000 Los Angeles mayoral debates scheduled to be held on campus – an act that was much more egregious than what these Irvine 11 did).  All these issues may be important for us, but these issues are irrelevant for the jury’s limited role.

The jury didn’t have much of a choice (again, assuming they actually followed the judge’s orders about what they were to rule upon).  Although there was solid evidence that the students left the program early and allowed the program to finish, and that Oren left to catch a Lakers game a full 30 minutes before the program was set to end, the facts could easily be interpreted to demonstrate that the protesters tried and actually did severely disrupt the event and Oren’s speech from continuing.

The real issue here is goes beyond trial, and is for appeals.  On appeals, a court will need to assess whether the Irvine 11′s actions – voicing your opinion loudly and strongly – should be a crime.  This issue needs to be heard on appeals, because as long as CCP 403 is on the books protesters will be confused about the scope of their 1^st Amendment Rights.  There is an urgent need for a federal court to decide whether California’s Section 403 is such an overly vague and ambiguous law (read the statute here, it’s ridiculously broad) that it presents too much room to conflict with the 1st Amendment’s free speech rights.  A law is unconstitutional as in conflict with the First Amendment if it does not leave open ample alternative channels for communication of the information.  Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976).  Further, a law is unconstitutionally vague if it would be impossible for a reasonable person to determine what speech or conduct is or is not permissible and would force a reasonable person to guess at its meaning.  Connally v. General Construction Co., 269 U.S. 385 (1926).

This issue was actually previously touched upon back in 1970, but in my opinion inadequately, by the California Supreme Court in a case called “In Re Kay” (1 Cal. 3d 930 (1970)).  I drafted a very rough analysis of this case a few months back.

In Re Kay dealt with very similar facts - big political rally on July 4th, some protesters shout the speaker down, they got convicted under Section 403.  In this case, the Court acknowledged that CCP 403 as written, was overly broad.  The Court acknowledged that “a function of free speech under our system of government is to invite disputes” and that an overboard restriction on a protester’s rights to voice their opinion could be unconstitutional.

However, rather than throw out CCP 403 altogether, the Court tried to narrow the scope of CCP 403 so that it wouldn’t be in direct conflict with the 1st Amendment. The court did this by adding new standards of guilt that weren’t previously spelled out in Section 403, such as requiring that that the defendants be publicly warned that they could face jail time, and requiring a showing that the defendants “substantially impaired the conduct of the meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of the meeting,  of which he knew, or as a reasonable man should have known.”

Applying these narrower standards, the Court ended up dismissing the trial verdict on appeal.  However, there’s a bigger issue on which the Court punted - whether CCP 403, even after the additional definition provided by the Court in In Re Kay, should be thrown out altogether because it is still so vague and written so broadly that it lends itself to rampant and arbitrary restrictions on free speech.  The Court instead said:  “In view of the foregoing discussion of the scope of section 403, we need not decide whether, without such definition, the statute would be void for vagueness.”

As the Irvine 11 case demonstrates, there is still great confusion over the scope of CCP 403.  Why was it enforced against the Irvine 11 but not in the many other protest incidents that occur in California each year?  How do you define “substantial impairment of the conduct of a meeting” in this context given that the protesters actually did leave before the meeting was over?  What if the “explicit rules for governance of the meeting” are so strict that alternative views cannot be adequately presented?

These issues are not just hypothetical abstract issues for scholars to debate, the confusion over CCP 403 has had a real impact on chilling free speech. Already I’ve heard stories that, because of this case, Oren and other controversial speakers have given speeches elsewhere in which the protesters didn’t speak up, waited for the question and answer session to commence, and watched as the speaker quickly left after his speech without giving dissenters an opportunity to ask their questions.  This is the kind of chilling effect on free speech that an appellate court must remedy, and fast.

I heard the news when my brother called me as I was getting home after a long drive, “are you watching the news? Obama is about to announce that they killed Bin Laden.” Surprised, I told him I’ll call him back, and hurried to unpack my luggage from my car, turn my computer on and search for streaming coverage of Obama’s statement online.  My heart started to beat faster, and I was filled with emotions, but I couldn’t understand them. I kept asking myself how I was feeling, but I couldn’t make it out. Was I sad? No, I despised Bin Laden and what he stood for. Was I happy? No. I sure wasn’t indifferent to the news. As always my mind had to work hard to catch up to my heart. I listened attentively to Obama’s speech. His detailing of the mission, his effort to take credit for the operation in anticipation of his electoral bid, the invocation of the 9/11 attacks, remembering the sacrifices of American military, their families, and the families of those who died in 9/11, and his complete silence on the misery felt by the rest of humanity that had suffered as his government waged the “war on terror.” After the speech, the coverage turned to pictures of a thousand or so, mostly young people who had gathered outside the White House enthusiastically jumping up and down, shouting “USA! USA! USA!” I sat back on my chair, and realized that what I had been feeling was undefeated despair.

I had been here before. I felt the same way when Saddam was caught and later executed. That hit even closer home for me. Saddam Hussein was responsible for the death of six family members (whose bodies have never been recovered), and the fleeing of half of my family including both of my parents in fear for their lives.  I never met the other half of my family that stayed behind until last year. And this is only my story. I know of countless other people with similar or more tragic stories. Yet as he was hung, I felt the same feeling I felt listening to the news of Bin Laden’s death–an undefeated despair. A coming to terms with the grim realities of the world, where life is present where it can’t be imagined to exist.

These men didn’t rise and fall on their own. Their political career can only be understood through their relationship with the United States government. Saddam and Bin Laden were initially tools for US foreign policy interest. Saddam was needed to bring down Abdel Karim Qasim in Iraq and prevent Socialism from taking root there, and Bin Laden needed to push back the Soviets from Afghanistan. All of a sudden, the relationship sours around 1991. Saddam invades Kuwait and threatens global business interests, and is met with a swift US response. The US invaded Kuwait and used Saudi Arabia as one of their main bases. This was the final straw for Bin Laden who quickly replaced the Soviets with Americans as his target. Since 1991 these two figures became for American policy makers symbols and markers around which key foreign policy campaigns were argued and sold to the masses both in the US and around Western Europe. The 2001 attacks in New York made these two the face of the “war on terror,” with their death serving as milestones, or victories in battles in the long “war.”  Along the way, millions of Iraqis suffered through four regime changes and one of the most brutal dictatorships in the past century, and Afghans suffered through three decades of un-yielding war leaving one to wonder, where they find the strength to still be present? The trajectory of Saddam and Bin Laden and their love-hate relationship with the United States is a story of misery, tragedy, death, and despair.

As Bin Laden, a criminal and a murderer, was shot in the head and thrown into the sea, I dare to say that there was nothing to celebrate. Naïve American Muslim leaders stumbled on each other, each yelling louder than the other “we’re relieved.” I ask them, where do you find this relief? All I feel is grief for the misery of those who suffered and continue to suffer for Obama to be able to announce his success so you can announce your relief.

Bin Laden’s death was a process that included a war in Afghanistan and a war in Iraq. It took bombs being dropped over Somalia and Sudan, and drone attacks over Pakistan. His death required the killing of an unknown number of people (there is no figures for these people, as their life is cheap), and the imprisonment, torture, and harassment of countless others. But to understand the true process of Bin Laden’s death, we must go further than the most obvious parts of the “war on terror.” In this war, American allies were Ali Abdel Salih of Yemen, Hosni Mubarak of Egypt, Zine Al-Abedine Ben Ali of Tunisia, King Abdullah of Jordan, King Abdullah bin Abdul-Aziz of Saudi Arabia, King Hamad ibn Isa al-Khalifa of Bahrain, Abdelaziz Bouteflika of Algeria, just to name a few.  In the name of fighting terrorism, dictators, kings, and tyrants were propped up, supported, given military aid, and diplomatic cover. These rulers were supported, because the supposed alternative was Bin Laden-like-extremists.

The “war on terror” needed Bin Laden, an amorphous figure whose reach seemed to stretch everywhere, but whose presence could not be pinned down to anywhere. A figure who lacked a coherent ideology outside of a confused and over-encompassing hate for the US, Europe, and what he saw as western intrusion into the Mid East in the form of Israel.   An ideology that lacked a nuanced and complex understanding of the political economic and cultural problems that faced the people of Mid East, Muslims, and the humanity in general. The ideology was vague enough for the proponents of the “war on terror” to collapse any critique of their war into this ideology and call the critics as either allies, harbingers, or unknowing accomplices of Bin Laden and his kind.

The “war on terror” has built an emotional and political infrastructure that is now strong enough to exist without Bin Laden. The language of “terrorism” and irrational fear of it, the use of the term by states globally to label their opposition, the linking of “terror” and Islam and Muslim, the undermining of legitimate uses of armed resistance against armies of occupation and repression, have all become built into an extensive infrastructure that is repeatedly tapped into by state actors worldwide. The “war on terror” is part of our “common sense” understanding of the world.

Bin Laden’s death is not the end of this war, as some hope, but rather a justification for the continuation of the war itself. His killing is now given as an indication of the success of vigilantism, increased militarization, and extra-legal (i.e. assassinations, torture, etc.) tactics in waging the “war on terror.” Now it is argued that given that terrorism still exists, then the “war on terror” needs to continue, and given that the way it has been fought so far resulted in the death of Bin Laden as it did Saddam, it needs to continue unabated and unchanged.  Let’s not get it twisted; the differences between Obama and Bush in foreign policy are differences in presentation of these policies, rather than the policies themselves.

But why despair?

As people jump to patriotic celebration in the United States and elsewhere, we cannot ignore the lives of those who were and remain present as this “war on terror” bulldozed/s through their countries, cities, neighborhoods, and living rooms.

The “war on terror” is not a war being fought by the United States. It is a political and cultural infrastructure that governments, especially in the West tap into as they face violence, protests, riots, and immigration. Terrorism is now the prism through which migrants are seen, feared, scapegoated, and as a result assaulted, exploited, and repressed.  Terrorism is the emotional infrastructure, the common sense that is tapped into to justify patriot-act-type laws, increased surveillance, and the demonization of protesters and rioters.

Across the world inequality is increasing at greater speed. More of land, services, and resources that used to be public are enclosed and privatized. Even genuine relationships between people are morphed into calculated interactions for personal gain. As the global economy continues to expand and deepen, economic growth no longer refers to better living conditions for people, but rather better profit making opportunities for those who own capital. As the global economy builds taller and taller skyscrapers in former colonized cities, it sweeps up with it a new class of transnational capitalists from amongst the colonized peoples, leaving millions behind scavenging for a livelihood in ever expanding slums surrounding these cities.

Privatization transformed social services globally, to sectors of profit making. As governments sold their responsibility to serve, they invested in their coercive role, building more prisons, buying more policing equipment, developing more sophisticated riot control protocol. They prepared themselves to counter the resistance and anger of their populations against these changes. As governments retreated from helping their people, they re-emerged as bigger institutions of policing. Avery Gordon reminds us “when the state abandons you, it never leaves you a lone.”

The last decade of the 20^th century was marked by a revamped consciousness and mobilization against neo-liberalism and its economic, political, and military brutality. The Zapatista uprising in 1994, protests against various transnational financial institutions such as the Seattle protests of 1999, the spread of the “pink tide” in Latin America, and the inauguration of the first World Social Forum in April 2001 are only some visible manifestations of the intensification of resistance in that time.  This was the context under which the “war on terror” emerged.  The “war on terror” pushed these other movements outside of the public imaginary. Instead what emerged was a fight between “good and evil,” “democracy and religious extremism,” “Jihad and McWorld,” “the West and the rest (notably Muslims).” Osama Bin Laden was the convenient face of this global “war.”

Bin Laden and his terrorism became the tool states used to legitimate ratcheting up repression across the globe. It was the reason given when Mubarak of Egypt, Ben Ali of Tunisia, and Boutelfika of Algeria amongst others gave for continuing their emergency laws, which were used to repress movements with political and economic demands. The untold and invisible story is that of the humanity that bears the brunt of the shrinking welfare state and the expanding police state, the victims of neo-liberal development and the “war on terror.”

Bin Laden’s death is proclaimed as a victory for all people in every country. We are supposed to celebrate the ability of a country to assassinate another person in another country because they deem them to be an enemy. Are the ramifications of this precedent not clear?  Apparently not clear to a bamboozled public in the west who cheer, and in their applause reinstate legitimacy for increased militarization across the globe.

To come to terms with how to feel and what position to take at these times, I find it helpful to refer to John Berger’s reflections on a trip he made to Occupied Palestine, which he observed and called for a stance of undefeated despair.

Palestinians, Iraqis, and Afghanis don’t celebrate. They exist with a profound “familiarity … with every sort of rubble, including the rubble of words,” as witnesses to the brutal contradictions of the 21^st century. They don’t see any reason to celebrate in the face of death. Rather they grieve. Egyptians who for years suffered under Mubarak and his “anti-terrorism” policies don’t celebrate. They are too busy, yet again struggling to make sure their revolution isn’t stolen as transnational interests pours into their country in the form of aid money to their military, civil society organizations, etc.  And everyday, this humanity goes home to wake up to another day of struggle and undefeated despair invisible to the rest of us in the West, blinded by our celebrations of death.

“Despair without fear, without resignation, without a sense of defeat…” This is the position of undefeated despair. “It is to carve out a life when everything is organized to prevent you from living.” The struggle of those Fanon called the wretched of the earth is one to achieve the simple requirements of life, the very ordinary. It is not a struggle for a new happiness, but rather a struggle for an old and ordinary one.

John Berger explains:

“In the stance I keep referring to, there is something special, a quality which no postmodern or political vocabulary today can find a word for. The quality of a way of sharing which disarms the leading question of: why was one born into this life?

This way of sharing disarms and answers the question not with a promise, or a consolation, or an oath of vengeance–these forms of rhetoric are for the small or large leaders who make History–and this way disarmingly answers the question despite history. Its answer is brief, brief but perpetual. One was born into this life to share the time that repeatedly exists between moments: the time of Becoming, before Being risks to confront one yet again with undefeated despair.”

Our stance is of undefeated despair and our politics is the politics of presence.

By Yousef K.B.

The last election cycle in the United States was permeated with concerns over the economy.  As the economy entered its third year of crisis, and with continued cuts to public services until only recently the only movement that can be heard of was that of the right-wing Tea Party.  Albeit a very heterogeneous and decentralized movement, its key figures speak of the movement as one that is mainly concerned with economy.  Specifically they decry increase in spending, increased government bureaucracy, tax increases and increasing budget deficits.   What makes the Tea Party worth mentioning is that they are the extreme manifestation of what is mainstream common sense across the US: budget deficit is increasing and that is a threat to all Americans, the national debt is growing and that is a threat to future generations in the US, and the deficit and the debt are the major roadblocks to economic recovery.  Based on this rationale it is argued that the deficit must be reduced immediately and this reduction can only come through a drastic cut in government spending and size, as taxation should be out of the question.   Taxing Americans would result in a slow down in the economy as people have less to spend, businesses would stop investing and hiring people, and even worse the money raised would only help to increase the government’s size adding to its already inefficient structure.  I’m sure you’ve all heard this pitch, whether in the last elections or currently as the budget debates heat up in D.C.   I’m sure you can make a plausible argument against taxation during economically hard times, but the rants and rhetoric against taxes have become a dominant mantra with the emergence of the conservative movement that propelled Reagan to the presidency.    So powerful is this idea that no policy maker dares to speak of new taxes––in good or bad economic times.  The result has been a steady erosion of public programs across the US.  The disproportionate victims of this erosion have been those at the bottom of the labor market as they depend more on these programs, but the so called “middle class” has also been a victim of this tax cutting to an extent that no one wants to admit.

As public spending and taxes are cut in areas such as education and healthcare individuals have to either forgo those services resulting in personal detriment, or to mitigate the decreases in those services by personally acquiring them from private sector.  The private sector offers these services to a smaller number of people than the public sector would, which means the amount they spend on overhead costs in relation to services offered is much higher than the public sector, thus the price of those services increases as they are effectively privatized.  This is in addition to the extra costs incurred by the consumer to pay for the new line in the budget spreadsheets which never existed when these services were provided by the public sector: profits.  So for the taxes that were cut from my father throughout the past decade, he’s had to pay that much and more in increased prices for health insurance and tuition for his kids, to say the least.

Here is the crucial point, however, that goes beyond economic debates about taxation, deficit spending, and Friedmanites versus Keynesians:  as taxes are cut and public sector is privatized forcing people to privately and individually acquire services at higher rates, the population is transformed from a collective of citizens investing in their social whole to a collective of individual tax-payers who consume and attempt to deal with their own situation. If you notice closely, when it comes to education, healthcare, welfare, social security, public transportation, and public spending in general all you hear is tax-payer this or tax-payer that.  Citizenship, or some notion of belonging to a collective and having responsibility for each other, is only mentioned in regards to the punitive aspects of the state: border control, immigration, defending the homeland, neighborhood security, and so on. We are no longer citizens; instead, we have become slowly transmuted into taxpayers.[1]

What is the problem when we no longer identify ourselves as a collective of citizens or members of a greater community, choosing to see ourselves only as a taxpayer?  The French sociologist Emile Durkheim observed that with the rise of the modern industrialized societies, the division of labor amongst us got deeper and ever more specialized.  Our jobs became narrower in scope and each one of us became a specialist in that narrow arena without much knowledge about other areas.  A renaissance man or woman is a historic term without much meaning in contemporary life.  This specialization makes us much more dependant on those around us, as we need everyone around us to do their specific tasks so that all of us can survive.  Think of an assembly line and how each person needs the other that comes after him in order to create the entire product at the end of the line.   So modern society can and does sow the seeds for greater interdependence among people.  At the same time as each of us become specialized, we each become a cog in the machines we operate or in the field or discipline we work in.   As cogs in the machine, each with their own routine, modern society can easily narrow our vision of all those around us leading us to become increasingly isolated from everyone around us, and the obligations we have towards each other. Durkheim termed these two contradictory traits that operate at the same time in modern society as organic solidarity (interdependence) and anomie (isolation due to breakdown of social norms that bring us together).

Modern society can choose to emphasize solidarity amongst its members or to create anomie, to cultivate mutual responsibility and collectivity or isolated individuals pitted against each other as they attempt to survive and prosper.  The idea of taxation in its most elemental form stems from the idea of a collective––known commonly as citizens of a state––that invest in an institution that will offer services to all of them.  The current attacks on taxes and welfare programs generally are premised on the idea that people working individually based on their own interests and satisfying their needs by entering a marketplace and consuming whatever they don’t have, without the need for an oppressive government and its inefficient and expensive programs.  In this view we are not members of an interdependent community but rather a community of nothing more than consumers.  This view taken to its extreme and pure sense is a portrait of self-contained individuals each responsible for him or herself interested in another person as long as that person can provide him with an immediate need.  The underbelly of the current demagogic views against taxation and Libertarian slogans about liberty is anomie––isolated hyper-individuals. 

As we cling to our newfound identities as taxpayers and refuse to invest in each other, we are dangerously adding to the salient vulnerability that each of us feels as we begin to acknowledge that in case we fall there is no net to catch us.   I am astounded to see how the general population is perfectly fine with further cuts to education and healthcare. Do we not see that as we cut spending and the respective public programs they fund, we are telling each other, “if you need something, go buy it yourself, and if you can’t buy it, then tough luck.”  Indeed in these times of ever expanding economic misery we are telling our friends that if you can’t deal on your own, then don’t expect me to help.  With every call for cuts in public spending, we join a resounding consent to relegate all those who can’t survive the dog-eat-dog marketplace we are calling a society to the gutters of American cities and towns. Our inability to see the virtues of taxation is built on an effort to reshape and reconstruct our society based on anomie.

The willingness to not only accept but to advocate for drastic cuts to the public sector as a matter of principle and to ignore the adverse impact on people around us speaks to a spiritual problem.  If we are adamant about advocating for a society built around isolated hyper-individualism, no matter the consequences, I submit to you that we no longer just need to reassess our political economic presuppositions, but the very moral and spiritual foundations that guide our actions.  It seems to me that the struggle today is not for deficit spending or deficit cuts but rather about the soul of America itself, as the Dr. Martin Luther King and the civil rights movement waged some four decades ago.

On Friday night, I attended one of the closing showings of “Ruined” at the Berkeley Rep Theater, a play written by Lynn Nottage about the plight of women during the Democratic Republic of Congo’s civil war. I was moved enough by the play, and the one rather profound weaknesses of that play, to write up a short piece on it. I don’t intend to write a review of the play (you can find those here, here, and here), nor do I intend to share insights about the historical, social, and political background of the situation that the play has a conversation with. Instead, I want to discuss the play in terms of how it contributes to a problem that I believe infects the way we interact with situations such as the DRC’s.

“Ruined” takes place exclusively in a Congolese brothel owned and operated by Mama Nadi, a shrewd, proud single woman who has seen quite a lot during her life. The story revolves around her life keeping up this bar and brothel, and how her business becomes a flashpoint in the armed conflict between rebel groups and the government. At her brothel, Mama Nadi houses, clothes, and feeds a number of girls-turned-prostitutes who, in return, dance, sing, and sleep with Mama Nadi’s clientele (mostly miners and soldiers passing through). The story opens with Mama Nadi accepting from a salesmen friend of hers two young women into her brothel: Sophie and Salima. Both have come from a harrowing past. Sophie had been the victim of a violent rape at the hands of bayonet-wielding men that had left her for dead. Salima was a married mother of an infant girl who was the victim of rape and kidnapping after having been snatched from her back yard one morning when her husband went off to town. Their lives literally and figuratively ruined from the encounter, they are sold into Mama Nadi’s house as prostitutes in exchange from shelter from the sordid world that had caused them so much pain.

The play revolves around these women and their interactions with minors and men who frequent the bar, and it evolves into a story about female survival of and resistance to war, patriarchy, and sexual violence. This was both the import, and the curse, of “Ruined.”

A technically strong play, the writing, the staging, the music, and the production were quite exquisite and powerful – what I would expect from a critically acclaimed, Pullitzer Prize-winning play. The problem, though, was in the politics; or, rather, the lack thereof. The failing of “Ruined” was that it attempted to expose to its audience the human, gendered suffering of those caught in the middle of war, yet it did so by ultimately trivializing that same experience and by not allowing its audience to understand quite what was at stake for those who have lived in the DRC.

This leads me to my thesis. “Ruined” was a typical White Liberal’s play: all of the guilt and charity, with none of the substance or courage. “Ruined” is an exemplar of how liberal humanitarianism operates in the West. It provides a narratively gripping story of humanitarian despair, yet categorically refuses to engage in – and actually whitewashes over – the normative questions about how and why that despair emerges.

Social misery does not occur as a product of humanity’s inherent evil. With few exceptions, no one is born a violent murderer or sexual criminal. We do not have to condone shameless acts that inflict social suffering in order for us to attempt to understand why people engage in them. For that reason, saying “terrorists” are pathologically wired to hate freedom and to blow themselves up in pursuit of jihad is facile and offensive. There are social conditions that lead otherwise emotionally stable and intellectually rational people to choose to act with brazen recklessness and evil toward others. The only way we can attempt to lift ourselves and our neighbors out of social misery is by understanding what those conditions are that lead those among us to commit horrible acts, and how those actors themselves respond to these conditions.

“Ruined” both refuses to engage in these two questions and, by implication, suggests that these are the wrong questions to ask. Though the audience understands through a few lines here and there some of the social and political dynamics that have given rise to such a precarious situation for the play’s female protagonists, it does so with trite rhetoric and facile explanations of the context. The play is never political, yet it features these women caught between two bands of soldiers – government soldiers and organized rebels (both intentionally played by the same set of male actors). The women, chief among them Mama Nadi, understand these men as essentially the same evil: they are both violent, they both commit grave atrocities on women, they both are untrustworthy, and they both are good only for the cash they infuse her brothels with. There is no difference between the two.

Indeed, the play makes it one of its goals to point how similar the two groups of soldiers actually are. The rebel soldiers, in one scene after the play’s intermission, enter the brothel and make way for the rebel leader to give a rousing speech about their cause: he cites government abuse, the pillaging of land, and the arbitrary killing of many civilians as the reason why his rag-tag group of heroic resisters have taken up arms to fight a just war. Shortly after the rebels leave, the government commander and his men enter the brothel, and the commander himself gives a rhetorically-trite speech about the rebels’ indignity for the rule of law, their disregard for human life, and their rampant drug and alcohol abuse. Neither are sympathetic – both are menacing, guilty of violence, and ultimately responsible for the misery that has been thrust upon the women in the brothel. The play gives us their motivations in mere platitudes: the rebels with their rhetoric justifying armed resistance, and the government with their truisms about enforcing the rule of law and about clamping down on thuggery and hooliganism. Both groups are rhetorically bankrupt, uninteresting, and guilty. The solution is a genuine compassion for the plight of the victims and a genuine distrust of political actors – that is, the solution is classic humanitarianism.

Yet this picture can’t be true, can it? I don’t claim to know very much about the DRC, but I refuse to believe that the parties to the civil (or any civil war) can be both reduced to such caricature and to moral equivalency. Rebels and government forces cannot be the same. They cannot be both as blameworthy as the other. Sure, they can both be guilty of devastation and criminality, but for different reasons and judged through different moral standards. The Irish Republican Army was guilty of perpetrating devastating acts of violence, but they were not in the same shoes as the British Army. Regardless of what we think about either the IRA or the British Army, we cannot think the same thing about both of them. That would be impossible, for that betrays their distinct positionality vis-à-vis Irish society. The same must necessarily be true in the DRC: the rebels and the government cannot occupy the same normative space, even if they perpetrate the same physical acts. To suggest, as “Ruined” does, that they are equally morally culpable for the devastation is to purposely and intentionally deny the viability of a context-specific, politically-nuanced solution to the problem of the country. Indeed, because of this intentionality, “Ruined” offers up another solution: the active distancing from all political actors in the conflict, and a lone emphasis only on humanitarian solutions that treat the symptoms of conflict, not the causes of it.

This thesis does not mean that any artistic or journalistic emphasis on victims of conflict necessarily implies that politically or socially sensitive solutions must give way to purely humanitarian ones. Surely “Ruined” could have articulated the stories of its victims without caricaturing the political situation that created them. It could have, for example, nuanced any of the rebel or government soldier’s characters. It could have articulated beyond platitudes what the positions of the opposing parties were. It could have done any number of things, but it actively refused to do so in a way that demonstrates not just a hesitance toward engaging politics, but rather a normative bias against politics and advocacy for pure humanitarianism. This is the principle problem of White Liberal humanitarianism: it refuses to ask the questions of “how” and “why,” and only offers up charity as the solution to conflict. It preaches an active denial of political consciousness. Any such consciousness would dilute the efficacy or importance of the pure humanitarian work, as if the latter can be done without the former.

That is evident in the New York Times review of the play in a section in which the reviewer actually succeeds in arguing against more politicizing of the conflict:

While the play seldom sounds like a lecture, its explanatory descriptions could be trimmed. The production makes many of its points so effectively in its staging and acting that the attendant speechifying can dangle like a set of footnotes. The surreal interchangeability of the opposing armies is suggested, for example, by double-casting the same actors.

It is precisely the “surreal interchangeability of the opposing armies” that is the problem with “Ruined.” That the New York Times’ reviewer sees this interchangeability as being threatened by “explanatory descriptions” and “lectures” suggests that our goal is not political understanding or nuance, but rather moral exculpation for our sins. When the audience left “Ruined,” it came out knowing virtually nothing about the history or politics of the DRC. And it wasn’t meant to, because that would detract from the “human suffering.” Politics is divisive; helping people is unifying. That is the logic of humanitarianism, and it is this logic that is profoundly destructive to the mission of solidarity that I believe the disinterested audience should be striving for – solidarity, as opposed to mere charity.

Again, I do not presume to have normative judgments about conflict in the DRC. I will leave that to scholars in the area. But as an observer, I know when I am told that normativity and political ideology are subjectivities that I must discard if I am to truly help people in need. I reject that position. I was genuinely moved by the story of those women in Mama Nadi’s brothel, and for that “Ruined” was successful. But its lack of normative prescriptions, its refusal to engage substantively with politics, and its advance of a hollow humanitarian ideal left me quite disappointed.

By Yousef K.B.

The Libyan revolt has transitioned from initially an unarmed protest movement calling for Muammar Gaddafi to step down, to a protest movement with an armed guerilla wing attempting to drag down Gaddafi. Protests began in the east of Libya in Benghazi and within days they spread across the country, reaching Tripoli. Gaddafi who was at first hesitant about the possibility of a mass movement against his country responded violently against the protesters. His son Saif al-Islam Gaddafi came out within two days of the uprising and warned that if the protests continue blood will be shed, a civil war can begin, and Libya might break apart into pieces in the East, West, and the South.

Gaddafi unleashed his military on unarmed protesters thereafter shooting at people with live rounds, heavy artillery, and at times air power. Gaddafi’s use of extensive violence as a last ditch effort to hold on to power, forced some protesters especially those in Tripoli to hide in their homes, and for others to arm themselves.  Some protesters, turned into armed rebels, attacked arms depots, police stations, and army barracks occupied them and stole their weapons.

Protesters were able to drive out Gaddafi’s forces from cities such as Benghazi and Baydha relatively quickly.  Key ministers, diplomats, and military figures resigned, and some joined the protests. Members of the security apparatus who defected, joined with other protesters who picked up arms, and this group began to organize itself as the armed wing of the protest movement. They began to defend liberated cities, as well as advance towards Tripoli.[1] In liberated Benghazi a Transitional National Council (TNC) was formed on February 27th headed by the former Justice Minister of Gaddafi Abdul Jalil. The Council claims to represent all of the rebels, and some rebels in other parts have allied themselves with the TNC. The fighting between the protesters, rebels, and Gaddafi’s forces have escalated over the past two weeks with increasing numbers of injured, fatalities, and a mounting refugee problem.

Image taken from: http://www.bbc.co.uk/news/world-africa-12670482

Libyans in Libya and outside, as well as human rights organizations have called for international assistance.  Whereas most of these calls have been for international humanitarian assistance, such as medical supplies, transfer of injured, and refugee relief, there have been some calls of military intervention. All indications are clear that no Libyan protesters have called for foreign ground presence, but rather a “no fly zone” option. On March 5^th the Crisis Committee of the Transitional National Council called for air support, but rejected any ground support. The head of the council had earlier also rejected foreign intervention, stating “we will never accept any foreign intervention and any foreigners who try to do so will face the same fate as Gaddafi’s mercenaries.”

It is within this context that questions have been raised regarding the implications of Libya “slipping into civil war.” Who really are the opposition forces? What are they fighting against?  Before talking about civil war, military intervention, ideologies, and other important questions, I attempted to draw out the different sides of the conflict based on the information that is coming out of Libya.

The Libyan State of Gaddafi

Muammar Gaddafi’s initial moves to create a socialist government became enveloped by his own ego.  At the outset of his reign, afraid of possible revolutions and coup d’états against him, Gaddafi walked a paradoxical line. On the one hand his vision as outlined by his Green Book called for giving power to local peoples and “direct democracy.” On the other hand his fear of loosing power led him to centralize power and afraid of empowering institutions.  With the erosion of Gaddafi’s revolutionary program this paradox was resolved and the tendency to centralize power behind Gaddafi and his family became the dominant trend. By the time the 1980s arrived whatever remained of his revolutionary political and economic agenda became rhetorical tirades, rather than policies. As Vijay Prashad points out Ronald Reagan’s bombing of Tripoli gave his revolutionary persona a “lease on life,” but in effect Gadaffi had began to privatize parts of the economy and introduce land reforms benefiting large landowners across Libya.

The trend that began in the 1980s to privatize sectors of the economy and begin opening up to transnational circuits of accumulation (defined as global business interests seeking profits) increased in pace in the 1990s and the 2000s. In the 1990s different Islamist forces gained strength in neighboring Algeria, as they won the first stage of elections in December 1991, followed by the Algerian government annulling the elections that began a lengthy civil strife across the country. Gaddafi increasingly feared Islamist influence in Libya. As Prashad explains this fear of Islamism and the turn towards neo-liberal policies proved to be powerful incentives for Gaddafi to move closer to the West. 2003 saw Gaddafi’s efforts bear fruit. He resolved the major outstanding issues he had with England, the US, and shortly thereafter with Italy. He claimed responsibility for the PanAm flight bombing and paid a hefty settlement, gave up certain weapons programs, opened up his intelligence record to Western intelligence, and gave further guarantees for access to his resource rich economy.  Tony Blair and Condoleezza Rice’s visits were the symbolic visits that consecrated this new phase of Gaddafi’s rule.

The opening up of the economy occurred while the state was being centralized further. As I mentioned in a previous post Gaddafi’s state did not attempt to build institutions.  Institutions were small and centralized to allow for greater control of them by Gaddafi. Political parties were crushed, and completely driven out or underground. Civil society was chocked off. Political activity was confined to the government led tightly by Gaddafi, his family, and a small cadre around him. Gaddafi even attacked the military to ensure that it did not exist as an institution outside of his close control and gave authority over parts of the military to his sons. He invested in different militias and rebel groups in neighboring countries and in Western Africa to increase his influence in the region.

the Gaddafi Family Cartel

Gaddafi’s state had exerted brutal control over its population but it was confined at the same time to Tripoli. Without complex bureaucracies, the Libyan state was housed in few key locations. February 17^th rebellion made this even clearer as Gaddafi’s state quickly retreated to Bab Al-Aziziya compound in Tripoli. The Libyan state is a single fort, a single compound, located in Bab Al-Aziziya, without any other institutions or government agencies such as legislature, judiciary, military, private sector, etc. that can act as trenches to ward off opposition forces.   A similar state structure was Saddam’s government in Baghdad that was centered in the Karada District.  A centralized state, based on the power of one man and his family is prone to resort to extreme violence if it finds itself backed up against the wall. As the regime becomes increasingly isolated, those close to Gaddafi will remain loyal to him, because their chances of retaining certain power and position after Gaddafi fades away quickly. This group of Gaddafi’s family, his close cadre, and their functionaries are who are left held up in Aziziya and make frequent trips to the Green Square to stage pro-Gaddafi rallies.

Tribes and Gaddafi’s Politics

Gaddafi and his son Saif have often referred to the tribal nature of Libya, recently arguing that this can lead to the breakdown of the Libyan nation. The strength of tribal affiliation and their political ramifications are never constant and change based on the political and economic conditions in any given country. Gaddafi has expanded the role of the tribes and tribal power hierarchies as he suppressed all other functions of civic life. This enabled him to have more control over Libya through clientelism receiving obedience from tribes by bribing tribal elders, as well as controlling them by pitting them against each other. Saddam Hussein in Iraq also pursued a similar strategy where he strengthened the tribal system to oppose the potential of different urban movements in affecting social change.

Mercenaries

One of the most troubling features of the current struggle in Libya is the use of mercenaries by Gaddafi. Media has dubbed these mercenaries “African mercenaries” since some of them come from countries in West Africa. Gaddafi invested in local militias and rebel groups, training their members in Libya and is now using some of these forces against the protesters. However there are reports of Serbian mercenaries as well. This is partially a result of the devolution of the Libyan military forces in recent years. It is also a tactic on the part of the Libyan state to create fractures within the Libyan people. Unfortunately this has had some success.

Libya is home to hundreds of thousands of migrant workers from across the world especially from sub-Saharan African countries working in different industries. Already having become victims and refugees of the global economy, these migrant workers, especially those from Sub-Saharan African countries are now facing a new racialized attack.   This also increases the conditions for a contradictory situation to arise for large segment of Black Libyan who all of a sudden find themselves in a contradictory situation of being part of the protesters in their aspirations for Gaddafi’s downfall, yet their nationality questioned at the same time.

Gaddafi can look, once again, at Saddam Hussein as someone who used and perfected this tactic. In the case of Saddam it was Egyptian and Palestinian migrant workers who he used to displace, beat down, and otherwise harass his opposition. An animosity emerged against these vulnerable populations, which turned into open hostility after Saddam’s demise. The chaotic nature of the type of rebellion we are witnessing in Libya increases the possibility where under the cloud of confusion Libyans can point at each other as well as migrant workers in their rightful quest to oust a tyrant.

The Opposition

Under Gaddafi, Libya has been cut off from the outside, despite recent moves to allow some media outlets and academic to enter Libya.   The isolation of the country has only been exacerbated by the recent clampdown on protesters and rebels. Therefore it is very difficult to make strong claims about the composition of the opposition forces.  Any attempt to do so must be viewed as speculative at best.

Having said that we can point to three different groupings that are emerging: expats and exiled parties, former government functionaries, and emergent mosque-based networks. There are potentially other groups, but these three are most visible.

This armed wing of the protests benefited from factions of the military and police defecting and joining the rebellions. They are attempting to train and lead new volunteer recruits as they defend and advance on Tripoli. Former government functionaries joined emerging alternative political bodies such as the Transitional National Council.

Army defectors training volunteers.

Mosque Based Networks

The mosques are playing an important role in the mass mobilizations seen in Libya. There are religious slogans interwoven with the political ones amongst some of the activists in Libya. This interplay between religion and politics will increase as Gaddafi’s power recedes. I anticipate Western observers and commentators will soon begin to sound alarms about this phenomenon, because with only a limited number of narrow narratives they’re unable to appreciate the complexity of the situation.

The dominance of the mosques in this and other revolts in authoritarian regimes stems from the government crackdown on civil society. Gaddafi’s suppression of all political parties destroyed them or drove them outside of Libya or underground. The same is true of any Islamist party. In this context the mosque as a gathering place played an important role for people coming together, and organic networks developed centered around the mosque as a space. To understand this, it is important to know that mosques, given the lack of a hierarchical clergy in Islam, are much more than strictly religious institution to be used only for religious rituals. Mosques tend to serve as open spaces in neighborhoods around the Muslim world, where people gather for religious services, prayers, but also to meet others, hang out, take a break from work (sometimes you’ll find people napping), etc. Mosques are unique in that they function as a public social space.   Thus it is inevitable that the mosque becomes the location of self-organization for popular movements. The religious clout of ritual practice shields emerging political collectives from state surveillance. These networks operate informally and usually without explicit political agendas. However as opportunities arise, as the state’s security apparatus retreats, and in a context where political organizations don’t exist, it is these mosque-based networks that all of a sudden become visible. Their organization is usually surprising to outsiders as they can be interpreted as spontaneous formations, but in reality that have existed within neighborhoods for some time.

An example of this phenomenon was the Sadrist movement in Iraq, where Muqtada Al-Sadr and his group surprised even Iraqi exiled groups with their following and sophisticated organization. The Sadrists prior to the US invasion operated as these mosque-based networks throughout impoverished areas in Shi’a dominated Iraq. The leaders in the movement were young men active in their local mosques. As Saddam’s state retreated, they stepped up as the most organized, vocal, and popular indigenous social movement. Of course there are many differences between the Sadrists in Iraq and what is occurring in Libya, one of which being the presence of a charismatic leader in Iraq–Muqtada Al-Sadr.  Nevertheless similar organizing trends in Libya are emerging and should be expected to continue.

These mosque-based networks begin as social networks and not as political parties with a set platform. Political demands are formed based on the specific political moment.  Because these networks begin as social networks, there is not an over-riding political ideology that informs the demands. These are not Islamist parties, but rather social networks that transform themselves into political movements at times because the specific historic moment calls for that. Thus the political ideologies or demands that arise out of these networks are varied and not easy to predict. It is not easy to label them as pro-free market, anti-imperialist, Arab nationalist, etc.

Exiled Opposition Parties

Exiled Libyan opposition parties are getting a lot of attention in the media. This is not because they have a lot of influence in Libya, but rather because they are easy to reach, they have people that can speak different languages such as English and French, and they can come to the local television or radio station to be interviewed.  These figures also have specific narrative that they can lay out. This is in contrast to Libyans inside of Libya that are hard to reach and usually are not heard well over fuzzy radio lines. The opposition in Libya is struggling to put together a cohesive organization that can project their message, and the Transitional National Council is their attempt to do this. The effectiveness of having a single organization that can speak for the entire rebellion might be debated, but the media’s attraction to them can’t be questioned. Media outlets are lazy at times and like to have single entities they can rely on for news, analysis, and responses. The opposition is also spread across multiple cities and cannot easily communicate with each other. Thus journalists have to reach people in different cities to get accurate information, rather than to communicate with an information-clearing house in a central location. The people they reach in these cities are often random people, who might not know of the total picture of what is happening, and often unable to precisely talk about the demands of the movement. Of course partially this is because the opposition itself much like Tunisia and Egypt is not run by a single party or a core organization.  But the combined effect of all of these factors is the opening for exiled opposition parties to increasingly step into the limelight in discussing what is occurring across Libya.

It is important to differentiate between expatriates and exiled groups and those on the ground. The demands and the political views and ideologies of these outside groups are distinct and could potentially be different or even in opposition to those inside of Libya. It is important not to generalize about the views of the Libyan opposition within Libya by relying on exiled Libyan groups. What happened in Iraq with the infamous Ahmed Chalabi should be a clear lesson.

However observers, especially on the left critique the Libyan opposition by focusing on the National Front for the Salvation of Libya, drawing connections between them and the National Endowment for Democracy, American policy makers and so forth. Exiled organizations tend to be supported by the United States and other western powers even if they might have a good relationship with the rulers in the home states of those parties. This support aims to better position countries such as the US to manage the crisis in the case that regimes implode or are deposed by putting themselves in a position to shape the alternative regimes that would rise to power. Nevertheless, once cannot assume that these groups have any control or say in Libya.

The level of support that exiled opposition groups enjoy in their home countries is not always certain. In the case of Libya, these parties don’t have that much power inside of Libya because they’ve been outside of the country for a long time. Thus relying on them to speak for the opposition can only lead to analytical errors, and confusion about the realities on the ground.

Ideology and Platform of the Opposition

Similar to Tunisia and Egypt, there is not a single ideology or political or economic platform for the opposition. The opposition started on the hells of the Egyptian revolt, as people protested the jailing of a prominent figure in Benghazi and it became larger. A single party does not lead it, the different forces are varied, and outside of the exiled parties they have not joined the protests with a clear ideological vision necessarily.  Economic hardships have given rise to the anger of the protesters but their main demands are around political issues such as ousting Gaddafi’s regime, the demolition of the security state, and a more open political society. The opposition does not have a clear economic demand and thus cannot be said to have a clear view towards economic development.

If the opposition is however successful, and even if their success did not depend on any outside help, they will forced to deal with Transnational interests as much of the economy, especially the oil sector has already been contracted out. I say this to suggest that the question of a post-Gaddafi regime is very murky at best. The chaos in Libya makes this question even more difficult to predict. However the difficulty to predict the outcome, should not take away from our need to steadfastly support the opposition to this tyrant!

By Yousef K.B.

When former Tunisian President Zine al-Abidine Ben-Ali left Tunisia after he lost control of the state following massive protests that gripped his country in January, Arab leaders were silent, each looking on with shock at the prospects of people overcoming their fear and toppling a vicious security state much like theirs.  The only voice that spoke up was Colonel Muammar al-Gaddafi, the president of Libya, known for his off-the-cuff remarks.  He told the Tunisian public: “I am very pained by what is happening in Tunisia.  Tunisia now lives in fear … Families could be raided and slaughtered in their bedrooms and the citizens in the street killed as if it was the Bolshevik or the American Revolution. … What is this for? To change Zine al-Abidine? Hasn’t he told you he would step down after three years? Be patient for three years and your son stays alive.”  Seeped in hubris, Gaddafi could not imagine that he was in line to be toppled by his own people.

In just over a week, protests that started over 1000 km in Benghazi have reached the Tripoli the capital of Libya. What is happening in Libya? What is the Libyan government doing? Gaddafi is different than Mubarak in that he has isolated his country from the outside. Information is hard to get from Libya, and most reports from the country cannot be confirmed.  However based on these reports and what we know of Gaddafi’s regime, I have put together some thoughts on the situation.

Basic Facts About Libya

Libya is the 4th largest country in Africa and 17^th largest in the world.  However it is sparsely populated with a population between 6 and 7 million people. About 1.7 million people live in Tripoli, the capital.  Libya has one of the largest oil reserves in Africa, and given its small population, it has one of the highest GDP per capita in Africa. I lay this out to suggest that Libya is a very wealthy country based on its natural resources, making Gaddafi’s regime a very rich one.  However this has not translated to average Libyans. A semi-official Libyan newspaper issued a report in 2009 that had unemployment at 20.7%, with 16% of the population having no stable source of income, and 43.3% having only one source of income. The reality is probably much more grim. Gaddafi blamed the large gap between the rich and the poor on bureaucratic corruption and inefficiency.

Gaddafi: a Saddam Trying to be More Like Mubarak

Saif Al-Islam Gaddafi in his last televised address (check out an informal translation of the speech) repeated that Libya was not Tunisia and Egypt. I agreed with him on that point, because Gaddafi’s regime can be seen as a mixture of the regimes of Saddam Hussein of Iraq and Hosni Mubarak of Egypt.

Gaddafi took power in 1969 after deposing King Idris in a bloodless coup by junior military officers.  He has ruled of Libya ever since constantly changing the name of his position and how he referred to himself such as Prime Minister (from ‘70-‘72), Colonel, Brother Leader, King of Kings, Guide of the Revolution, and others.   Initially Gaddafi’s political economic vision, which he published in the Green Book was a welfare system (which he termed Socialism) economically, and “direct democracy” through “people’s committees and congresses” politically.  Sometimes referred to as Islamic Socialism, Gaddafi in recent years has strayed from this type of rhetoric.  He decreased his involvement in the Arab League and began to portray himself as more of a Pan-Africanist calling for a EU type United States of Africa.

In this stage of Gaddafi’s rule he resembles Saddam Hussein of Iraq.  They claimed Arab nationalism at one point and a twisted sense of Socialism.  Using their oil revenues they built a welfare system that provided services.  They both initially saw themselves as exporters of revolution, sending aid to popular resistances.  However this was part of their eccentric qualities often making outlandish statements and built a state based on a cult-like following of their persona. This state was composed of a security state with an extensive intelligence services that spread fear throughout the population. Their power was based on people fearing them. Their states did not have extensive institutions and a civil society.  Power was centralized within the families of Gaddafi and Saddam, and those closest to them.  In both cases their sons Qussai in the case of Saddam and Khamis in the case of Gaddafi were in charge of elite military units that were above the formal military and both stroke fear amongst people. The Khamis Brigade was reported to be responsible for the initial shootings at protesters in Benghazi.  In both cases power was heavily militarized, it lacked complex institutions, and it was arbitrary based on the changing views of Saddam and Gaddafi.

Beginning in 2001, Gaddafi began shifting his foreign policies and tried to look for ways to change his more anti-Western stances that had characterized him in the 80s with the Reagan administration. The invasion of Iraq in 2003 only quickened this process of change for Gaddafi.  In December 2003 he announced that he was abandoning his nuclear and other “WMD” weapons programs. This was followed by a 2.7 billion dollar settlement with the families of Lockerbie plane that was bombed by Libyan agents in 1988.  This set in place an easing in Libyan relations with European and American administrations, with former US Secretary of State Condoleezza Rice and former British Prime Minister Tony Blair visiting Libya.

Gaddafi shape shifted once again into a promoter of free markets.   In 2004 Libya began accession process into the WTO. Gaddafi began to reduce subsidies, privatized more than 100, of which 29 were completely foreign owned, allowed Libyan banks to enter into partnerships with foreign investors, and eased British Petroleum and Exxon Mobil from entering its lucrative oil sector.  There were estimates of more than 2 billion dollars of Foreign Direct Investments in 2009 and investors salivating over the potential tourism sector that can be built in Libya much like the one in Tunisia.

Gaddafi’s son Saif Al-Islam Gaddafi headed Libya’s market oriented reforms. He played a similar role to that of Gamal Mubarak the son of Honsi Mubarak the former ruler of Egypt.  Saif and Gamal were favored to replace their fathers (by their fathers and their loyalists), and both were entry points for Transnational Corporations to enter into their respective countries.  They received large sums of money, which they siphoned off into the Gaddafi and Mubarak family funds.  Gaddafi wanted to become more like his the Tunisian and Egyptian presidents who had opened up their countries and benefiting from the investments monies that was going into their pockets.

They had figured it out it was easier to let Transnational Companies to do the work of generating profits and giving parts of it to them, than they having to develop the infrastructure to generate profits for themselves. Gaddafi retained much more power in himself as compared to Mubarak. His state centralized all power and refused any opening for civil society to be created, relative to what we saw in Egypt’s nominal opening. Political parties in Libya were completely wiped off, whereas in Egypt there were still some parties that functioned albeit in a very limited way.

Gaddafi is different than Saddam in that he opened up his country to capital (which Saddam was hinting at, but wasn’t allowed to), and is different than Mubarak in that he controls a much more centralized state.

Taking a Play from Saddam’s Playbook

As protests have rocked Gaddafi’s state in the last week, Gaddafi’s response is looking more like Saddam’s response to the 1991 revolt than Mubarak or Ben Ali in the last months. Centralized governments without a complex institutional infrastructure are much weaker, because power physically lies in the capital in select buildings that house the president, his bureaucracy, and key military establishments.  The state does not have any trenches outside of a single fort.  If people can penetrate that fort, then the state collapses.  The Egyptian government through its institutions such as the military, the judiciary, the media, the ruling party, and others had developed trenches (albeit few) beyond the fort that could 1) protect the state from falling, and 2) re-construct the state once the central fort had collapsed. What we see in Egypt now is a battle in the trenches, whereas Libya is a battle for the fort itself that is looking to collapse at any moment.

The by-product of such a centralized state is that it can and often does resort to extreme violence once it feels that it is under threat. The Egyptian state and the elites behind the state understood that their rule was untenable under Mubarak.  Thus they gave him up and are currently hard at work with the help of the Military to reformulate their power under a new political structure. The governing elites in Libya are more dependent on Gaddafi and do not have any other institutional trenches. The Libyan state lives and dies with Gaddafi.  This was the case in Saddam’s Iraq.

In 1991 following Saddam’s defeat in the hands of the first Bush administration in Kuwait, Iraqis especially in the Shi’a South and the Kurdish North rose up and pushed Saddam’s Revolutionary Guard almost close to Baghdad.  Saddam feeling the collapse of his regime with the permission of the US and its allies put down the protests in the most brutal fashion, shooting people down from helicopters, tanks, and heavy artillery. What we are seeing in Tripoli today is a similar response by Gaddafi.  He has cut off communication, attempted to isolate the protesters and has unleashed vicious military strikes against the protesters.  He initially used mercenaries and the loyal Khamis Brigade for fear of defections by his military, but Gaddafi feeling more and more desperate is increasing the level of violence, with reports of heavy artillery and planes bombarding protesters.

What we are witnessing in Libya is an astonishing sign of the power of people who have lost their fear. It is however not the first of its kind. The people of Iraq rose up against Saddam and were brutally suppressed. Their blood was invisible to the world and their voices not heard. Instead they became victims of a 10 year sanctions campaign by the United States, only to become the victims of “Shock and Awe.”  What happened to Iraq in 1991 must not be repeated.

The people of Libya are continuing to struggle in the face of unfathomable brutality.  We must begin digging trenches behind the front lines in Benghazi and Tripoli, not for the state, but trenches for a resistance movement.  We must support the Libyans as we did the Egyptians, the Tunisians. We must support Bahrainis, Yemenis, Algerians, and Moroccans. What we are witnessing is a global insurgency, that manifested itself in 1994 in Chiapas, across Latin America, and now it can be seen in North Africa and the Middle East.  We must build a new collective consciousness and new trenches of support for this transnational movement.

What follows below is a description of and a brief legal analysis of the charges being brought up by the Orange County DA.  These are the thoughts of  a Southern California based lawyer from the community.  I believe this is one of the clearest description of the charges, which is why we are reposting it here.  I hope that you take further action after reading this short piece and sign the petition supporting the students, and further actions as outlined by the website of the group advocating on behalf of the students.

***

Based off the DA’s press release, it appears that the Irvine 11 will have two charges brought against them:

Obviously the big issue with CCP 403 is that it can be read to be in direct competition with the Constitutional right to Free Speech under the 1st Amendment.  The constitution is the overriding law of the land, so if CCP 403 and the 1st amendment are in direct conflict, the 1st amendment wins. The big case interpreting the intersection of CCP 403 and the 1st Amendment is In Re Kay 1 Cal. 3d 930 (1970).  Very similar facts – big rally on July 4th, some protesters shout the speaker down.  In that case, the Court tried to really narrow the scope of CCP 403 so that it wouldn’t be in conflict with the 1st amendment. Some important quotes:

However, there’s another constitutional issue on which the Court in Kay punted, and that’s whether CCP 403 should be thrown out altogether because it’s so vague and is written so broadly that it can lend itself to rampant restrictions on free speech.  The Court instead said:  “In view of the foregoing discussion of the scope of section 403, we need not decide whether, without such definition, the statute would be void for vagueness.”

There is precedent for statutes being deemed unconstitutional for vagueness, on the grounds that they violate the due process of law. One of the most cited U.S. Supreme Court cases on this issue is Conally v. General Construction Co., 269 U.S. 385 (1926) which held that “the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

CCP 403 is arguably so vague, even after the California court’s attempt in In Re Kay to narrow and define the broad statutory standards, that a common person can’t reasonably predict exactly where the line is now drawn between permitted and criminal instances of “audience activities, such as heckling, interrupting, harsh questioning, and booing.”  This is made even more confusing given that (a) such audience activities can and do have a beneficial consequence, a fact acknowledged by the court in In Re Kay which acknowledged that “the very possibility of adverse audience reaction may aid in the correction of evils which would otherwise escape opposition,” and (b) such opposition speech is as American as apple pie – as also acknowledged by the court in In Re Kay, “the heckling and harassment of public officials and other speakers while making public speeches is as old as American and British politics.”

At a time when the voices of dissent and opposition are hailed as triumphs of democracy in Tunisia, Egypt and Bahrain, it’s shocking to see an attempt to criminalize such dissent right here in Orange County.

Over the past couple of weeks, artists worldwide have composed and recorded songs in solidarity with protesters in Egypt. After listening to them all, I thought it might be nice to have a comprehensive list of them in one place. I find many of them quite moving, so I thought I’d throw them up here for those to listen. If you don’t have the time to listen to all of them, make sure to listen to the very first one – featuring a cross section of the protesters themselves.

If you’ve heard any other songs that I’ve missed here, please do comment on this post, and I’ll update it accordingly. Updates:

*First Update* I’ve included a song coming out of Tunisia by a Tunisian hip-hop artist, and a song by an Egyptian rapper.

*Second Update* Amidst the rubble of a fallen dictator, a new song has been recorded by a group of young Egyptians – with contributions by a host of those who were on the streets in Cairo – to celebrate the occasion.

*Third Update – 2/13/2011* Included seven more songs – one from Alexandria, one from famous singer/actor Mohamed Mounir, two more written by Egyptian artists, two by Tunisian artists (including one sung in the middle of protests), one by Sami Yusuf, and the last by Wycleaf Jean in tribute to the protesters. This list is getting to be mildly unwieldy, but semi-comprehensive. Keep them coming.

*Fourth Update – 2/14/2011* Added a new one by artists Mustafa Najjar and Mohamed Abbas.

Here they are:

Egypt

Sawt al-Hurriya [The Sound of Freedom] – Amir Eid, Hany Adel

Ezzai? [How come?] – Mohamed Mounir

Ehlam Ma’aya [Dream With Me] – Hamza Namira

Bahibak Ya Balaady [I Love You, My Country] – Aziz al-Shafiaey & Ramy Jamal

Shiloo Hosni [Get rid of Hosni] – ? [probably from Alexandria]

‘Ahd al-Shohadaa [The Era of Martyrs] – Mohamed Abbas & Mustafa Najjar

Dhid al-Hakooma [Against the Government] – Ramy Donjewan

#Jan25 – Omar Offendum, The Narcicyst, Freeway, Ayah, Amir Sulaiman

Not Your Prisoner – Arabian Nightz feat. Shadia Mansour

Backdown Mubarak – Master Mimz

Freedom (Song for Egypt) – Wyclef Jean

Rebel – Arabian Nightz (sampling Lauryn Hill)

Egyptian Protesters, during one night of the protests. This is by far the best one.

Tunisia

President, Your People are Dying – El General (Hamada Ben-Amor) – . This is a song written by a Tunisian hip-hop artist during the Tunisian uprisings. This song led to 30 plain-clothes policeman arresting Ben-Amor at his house in early January.

Obbed Elmel – Nabil Khemir

Kalamti Hurra [My Word is Free] – Amel Mathlouthi. Sung during protests in Tunisia. Acoustic studio version also on youtube here.

I Am Your Hope – Sami Yusuf

Viva Revolution – Conscious Minds

By Yousef K.B.

As I write this, an uneasy and tense calm is being felt in Tahrir square and across Egypt.

At 1 pm across Egypt, the question that people will answer––whether they are in their mosques, churches, or neighborhoods––is do we march or not?

In Cairo, some plans (since there is not one organized entity leading the organization, plans seem to be contingent and dynamic) are calling for people from across the city to march towards the Presidential Palace in Heliopolis roughly at 1 pm after the end of Friday prayers.  Otherwise, people will again gather at Tahrir square.  What has been dubbed the “Friday of Departure” is the deadline that the protesters gave to President Hosni Mubarak to step down.

Let’s backup and recap what has happened in the past two days.

Unleashing of State Violence

The protests up to this point had been rather peaceful, with the exception of police crackdown on January 28^th.  Following the Million Masry March on Tuesday, President Mubarak came on television and announced that he will not be seeking another term, yet he refused to step down until the end of his current term which runs out in September.  In his speech he referred to the protesters as some who have been

“exploited … by those who wanted to manipulate the situation to create chaos and destroy the constitution.  These demonstrations moved from a civilized expression of practicing freedom of speech to sad confrontations which were organized by political groups who wanted to throw fire on the oil and to threaten the stability, and provoke, and create looting and destruction and fires, and to block roads, and to attack national possessions and public and private possessions, and attacks on some diplomatic missions on Egypt.”

He attempted in his speech to stoke up fear and anxiety by speaking about chaos, looting, and destruction, all of which were perpetrated by his police and other personnel connected to his interior ministry.  He appealed to people to go home for the sake of stability and security (words that are always deployed by power), and given that he will no longer seek the presidency.  Mubarak’s strategy was (and continues to be) to break the lines of the Egyptian people by increasing and then appealing to people’s sense of fear and anxiety about the current tumultuous situation and what could happen in the future.  He was, however not just going to scare people using his rhetoric devices in his speech.

There had been reports of small and sporadic “pro-Mubarak” protests in parts of Cairo.  Following the speech, however there were reports, and Al Jazeera showed pictures of these “pro-Mubarak” forces attacking protesters in Alexandria.  Internet seemed to function normally.  Mobile phone networks began functioning and users of Vodafone services began receiving texts saying “honest and loyal men to confront the traitors and criminals and protect our people and honor.”   It was becoming eerily clear that not only was Mubarak not prepared to leave but also ready to shed blood even in the last chapter of his dictatorship.

During the next day it became clear that the government had prepared to use violence against the protesters.  The government bussed interior ministry personnel; it also made calls to large plants, government contractors, and any government related businesses telling managers and owners to take their workers to pro-Mubarak rallies.  These forces began gathering near the state television.  However as the day went on they began to march towards Tahrir square.  The plain clothed interior ministry personnel and the street gangs they’ve used in recent years were armed with clubs, machetes, knives, and other weapons, and they began to attack the protesters.

Initially media outlets labeled these clashes between “pro and anti Mubarak protesters,” working into the hands of the overall Mubarak strategy.  Mubarak’s strategy was to create a more chaotic and confusing situation, where it seemed that the people were divided, that he still had a large popular base, and that the opposing groups were turning violent towards each other.  This, he schemed, would work in his favor internationally by confusing an already confused international (especially American) media, dissuade people from wanting to join protests for fear of violence against them, and making it seem more reasonable to allow him to stay in power for eight more months rather than to go through more chaos and unpredictability.

Unfortunate for him, his goons are not that calculating.  Along with attacking protesters, they also went after all journalists. Quickly what would have been covered as clashes between two camps of protesters began to be covered as government backed throngs attacking anti-government protesters.  Two days of violence, however has left many people in Egypt wavering and more anxious then they were at the beginning of the week.  It remains to be seen if they will come out in the same numbers as they did on February 1^st.

The Inactivity of the Military

Throughout the violence inflicted upon the protesters by state sponsored goons, the Egyptian Armed Forces have stayed silent, letting protesters be hit, dragged, and shot in front of them without taking any action.  The military had so far enjoyed the support of people in the streets who did not view them with the hostility they viewed the police and interior ministry agents.  The inactivity of the military could cost them legitimacy, the longer they remain “neutral.”

The American Position

If the people turn against the military (still not the case), this will be very damaging to American interests of an “orderly transition.”  The American government has begun to understand that Mubarak’s days are numbered, and prominent politicians who are influential in US foreign policy such as McCain and Kerry have called for Mubarak to step down.  However it does seem that they have been able to convince Mubarak to step down.  This partially speaks to the loyalty that Mubarak still enjoys from the fractions of the Armed Forces.  In other words fractions of the Armed Forces such as the Presidential Guard and Air Force, loyal to Mubarak are still dominant and have successfully sidelined the broader military that might be more favorable to his removal.

This is becoming more dangerous for the United States.  As the situation escalates they will find it more difficult to control the post-Mubarak Egypt.  This explains recent reports that Washington is in conversation with Egyptian officials for Mubarak to resign.  They are trying to replace Mubarak with his Vice President, Suleiman who they have a very close relationship with.  They can entrust Suleiman to use the transitional period to build a new elite constellation that can retain the current establishment and re-construct the hegemony in Egypt.

Peoples’ Response

Egyptians have taken over the power to be the ultimate decision makers.  They will show in their decision to come out in large numbers tomorrow, that Mubarak’s state violence and fear has lost its power once and for all.  The next big question after that is will they accept an “orderly transition,” or will they insist on fundamental change to the social relations of domination, an effective change in the very exploitative social structure that is present day Egypt.

By Yousef K.B.

This is a compilation of the news from the past two days and some analysis of how to make sense of the news.  I hope it is helpful.

Protests have only become larger and louder.  This came as a direct response to Egyptian President Hosni Mubarak’s response on Friday, January 28^th or the lack thereof, in which he remained in power and simply reshuffled his cabinet.  A day later he named a Vice President (unprecedented for his rule) and a new Prime Minister.  Later that day he ordered them to keep subsidies, reduce poverty, alleviate unemployment, and reduce inflation.  People were unfazed, having had 30 years of empty promises, and once again came out to the streets on Saturday.

On Saturday media outlets, especially American ones were transfixed on reports of looting, instead of the events on the ground and the real protagonists the people of Egypt. American media reports have attempted to connect the looting to prison breaks that have occurred, where prisoners have revolted in some cases, and in other cases people from outside of prisons have attacked the prisons to free detainees.  I don’t think the two are connected, and attempts to connect them by American and Egyptian state media serves to keep people afraid and portray an image of chaos rather than a revolt, of law-breakers rather than political activists.   Reports have come in and it is also widely believed among Egyptians that police, along with state backed paramilitaries and street gangs perpetrated the looting (please see my earlier post a fuller discussion of this).  Looting has since then dramatically decreased as people organized neighborhood committees, set up road-blocks and checked IDs.  The reported prison breaks have coincided with fires in some prisons and prison guards firing on prisoners.  There is an unconfirmed number of deaths and injured from amongst the prisoners.  It is important to remember that with the perpetual “emergency law” that has existed in Egypt since Mubarak’s time, the difference between “criminal” and political prisoner is murky at best.

On Saturday an hour before curfew was set to begin, helicopters and military fighter jets were seen flying very low above Cairo in an apparent show of force by the Egyptian state and military.  The crowds were undeterred.  So far Tahrir Square or Liberation Square in Cairo has been filled with people, and the military has not been able to deter people from gathering there.  Protests have also been seen in Suez, Alexandria, and other cities, with protests in smaller cities and neighborhoods unnoticed by us outside of Egypt as reporters are not there to cover them and the internet still down for people to get the message out effectively.

Egyptian Armed Forces

On Sunday, pictures emerged on Egypt state TV showing Mubarak flanked with Military generals around him.  The new cabinet that was installed is also littered with military or people with connections to the military.  Military presence has only increased on the streets of Egypt and especially Cairo.  The military has increased its presence in Heliopolis, where the Presidential palace is located.

There are also reports that the Egyptian military has been deployed in the Sinai Peninsula after receiving approval from Israel.[1] This is in an apparent move to dissuade and stop any smuggling of commodities to Gaza.  Even in the regime’s weakest point in the last 30 years, it is still beholden to the interests of and acts in defense of Israeli interests and against Palestinian interests.

Nevertheless the question of the loyalties of the Armed Forces is very much in doubt.  Just recently the spokesperson of the Egyptian armed forces read a statement on Egyptian State television saying that the “armed forces will not resort to use of force against the people of this great nation.”  While it issues such a statement, military officials are sitting next to Mubarak, in a show of approval for the regime.  Which side are they on?

The Egyptian Armed Forces much like the United States are trying to hold off to take a position.  In talking about the Armed Forces it is important to remember that there are different fractions within and I’d assume these fractions might be multiplying with different positions.  Moreover the Armed Forces are distinct from the police and these interests are not necessarily the same.  As security states face grave moments, their functionaries begin to think of their personal interests and how they will thrive once the state falls.  I’d speculate the same phenomenon is happening within the security community these days in Egypt.  Therefore it is hard to predict or speak to what is happening.  Having said that, I think that the Armed Forces are trying to play both sides, and it is taking the role that it will be in charge if Mubarak stays in power or if he leaves.  The Armed Forces are getting themselves ready for either outcome, and I believe they are preparing to take the reigns of the state, if and when Mubarak steps down.

The people responded to the incorporation of the military in the government, and chants of “madaniya, mish askariya” or “civilian, not military [government]” were heard.  Throughout the streets, interactions between the people and military have been safe and friendly.  This is what the military is attempting to negotiate, how does it defend the state and keep the state, while not alienating the people.  Remember that the material interests of military leaders depend on the current policies of the state, including their alliance with Israel.  Egyptian alliance and overall policy towards the Israelis and Palestinians enables the Military to receive massive support from the US along with access to US-made armaments.

The United States for its part has been in conversation with different levels of the Egyptian government including the Armed Forces.  As I have noted in early entries, the US is not about supporting one man, one dictator, but support for an establishment and for a specific type of hegemony.  This hegemony is characterized by: its neo-liberal economic policies; its globally integrated economic position; its support for Israel; a counter-balance to Iran-Syria axis; and its opposition to popular movements across the Mid East and North Africa.

American and European Positions

The West is engaged in “crisis management” (never wanting to solve crises at their root).  As I argued previously the US wants to see Mubarak in power, but given that Mubarak’s presidency seems no longer tenable it will want the Military to take power to buffer and create a cocoon for the emergence of a new elite constellation to reestablish hegemony. Catherine Ashton the High Representative for Foreign Affairs for the European Union  and Robert Gibbs the White House spokesperson echoed the American Secretary of State Hillary Clinton’s call yesterday for an “orderly transition to democracy.” Upon being asked to define what he meant, Gibbs responded that they want to see a “process of negotiations with a broad cross section of Egyptian people, including those in the opposition.”  He said that inherently this means the government needs to be included.  He further mentioned that they are calling for free and fair elections in September when the presidential term of Mubarak is supposed to end, a long with nominal changes in the constitution calling for free expression and end to emergency law.  This is clearly a validation of my point that the Americans want a transition period led by the current State to prepare a new elite constellation.

An “orderly transition to democracy” is code for polyarchy, rule by the existing elite.  “Orderly” in this phrase that is now the slogans of Western leaders speaks to the desire for the “transition” to come about through already existing elite groups.  A fundamental or major re-shuffling of, or the emergence of new groups on the scene is usually anything but “orderly.”  A further evidence for this is the refusal of Americans or Europeans to deal with or engage with the Muslim Brotherhood, the Kifaya (enough is enough) movement, or other political opposition, choosing only to speak to the military.  This is because Kifaya with Arab Nationalist leanings differs on current policies of Egyptian government towards Israel, and the Brotherhood is an Islamist group that is obviously vilified.  Washington and capitals across Europe are only comfortable speaking with the military.

The political stakes involved of course is if popular discontent, anger, frustration, and self-activity is allowed to manifest itself it could bring about radical change.  Thus current hegemonic forces will want to sublimate the people’s feelings and demands in just a re-shuffling of elite fractions that won’t destabilize the social relations of domination, what the Italian scholar calls a “passive revolution.”

Egyptian Opposition Parties

On Sunday night, Mohammad El Baradei, the former head of the IAEA, showed up in Tahrir square yesterday and made a call for Mubarak to step down.  Following this call the Muslim Brotherhood seemed to agree to El Baradei leading a grouping of opposition forces to lead a transition government or to lead a post-Mubarak government. The tactic here on their part is to remain behind El Baradei who is acceptable to the outside world, and not to antagonize the West.  It remains to be seen what the Brotherhood is thinking or planning on doing.  I would however warn against characterizing this group as Qaeda-like or even akin to the Islamist who took over in Iran.  All of these groups obviously (not to American pundits) are very different, and the Brotherhood seems to see itself as one of the many opposition groups without ambition to create a theological state.

Look at my previous post for a discussion of reasons to be weary of El Baradei or technocratic elite takeover.

Response of the Transnational Capitalist Class

The protests have surprised owners of capital worldwide and they are anxiously looking on.  The Egyptian stock exchange lost 16% last week before it was shut down.  The stock exchange remains closed, and reports put the losses at over 100 billion Egyptian pounds.  Moody’s has downgraded Egyptian bonds, and further downgrades are being hinted.  The Egyptian government postponed a plan sale of bonds to raise about 4 billion USD.  Today businesses are mostly closed.  Banks have closed and banned withdrawals and transfer of funds as they fear people taking out their money.  Egyptian capitalist classes, as exemplified by statements from Tahir El Sherif of the Egytpian-British Chamber of Commerce are urging Mubarak to step down in the hopes of preventing a total collapse of the economy.  However these groups are not calling for a total revamping of the state, but rather a transfer of power, much like what the US would like to see, to other people within the establishment.

Looking broader than Egypt, the most important gathering of leading business people, world leaders, and global political and financial institutions are underway in the World Economic Forum in Davos, Switzerland. Philip Aldrick of the Telegraph reported the following:

“The increase in inequality is the most serious challenge for the world,” Min Zhu, a special adviser at the International Monetary Fund and a former deputy governor of the People’s Bank of China, told delegates at the Davos gathering. “I don’t think the world is paying enough attention.”  His comments echoed an earlier warning from Sir Martin Sorrell, chief executive of media giant WPP, that “inequality, the concentration of wealth is a serious issue” and that marginal tax rates may need to rise for the best-off in society. Nouriel Roubini, professor of economics at New York University, also warned that inequality “exacerbates political instability”.

This speaks to the fear of the global economic elite, of what can be termed the transnational capitalist class, of recent events across the globe.  They are afraid of what seems to be people’s mobilizations without the leadership of parties or organizations where they are decrying government deregulations, cuts to subsidies, and erosion of public sector and services.   These mobilizations, most visible and perhaps successful in Egypt and Tunisia are striking fear in the heart of this elite, and their trembling is visible in their discussion of inequality, a concept usually foreign to this grouping.

Next Steps by Revolutionaries in Egypt

People today have called for nation-wide general strike.  In Cairo they are calling for a gathering in Tahrir Square and a march to the Presidential Palace in Heliopolis.  This “Million Masry (Egyptian) March” is planning on seizing the palace, despite Mubarak having left it for Sharm al-Sheikh.  The march will pass state television stations on their way.  The military is reportedly lining the march routes, and activists are saying that they expect and are prepared to deal with military intervention.  The Armed Forces have said they won’t attack “the people of this great nation,” and hopefully they will remain true to those statements.  There are rumors of counter-protesters, most probably government paramilitaries and street gangs that might attempt to intervene, but with millions expected it is doubtful that they can derail the march.

In the most recent development the Vice President Omar Suleiman came out on state television that the constitutional court will look into elections fraud claims.  He further stated that the president has told him to begin dialogue for constitutional changes.  He further said that he wants to protect against an “Iran-like” outcome to these protests.

Unfortunately for him and Mubarak, they have yet to learn what Ben Ali learned in Tunisia… Too little, too late!

Forwards ever, backwards never.

In solidarity with the people of Egypt, Tunisia, the Mid East, Africa, and the world.

By Yousef K.B.

In the last few days we have been witness to historic processes of popular struggle on the streets of Tunisia, and most recently in Egypt. I have been glued to TV, radio, and the internet, at time simultaneously which let me tell you is a bit too much.

I have been ecstatic, angry, and anxious all at the same time as I look on waiting for the next thing to happen.  I am excited and inspired by my sisters and brothers in Egypt as well as Tunisia, Jordan, and Yemen.

I have been trying to make sense of it all, and obviously am filled with more questions than answers.  What I decided to do was to try to put my thoughts on paper, and try to make sense of what is happening on the ground. This is simply an opinion among opinions.  In fact the people of Egypt and Tunisia have taught us all, especially academics that there is nothing inevitable about history, which is filled with forks in the road and the choice of choosing one path over another is a result of continued struggle and conflict amidst continuing social relations of domination.  I am humbly putting forward some thoughts to elicit responses from others so that collectively we are inspired and learn further lessons from events in the Mid East and North Africa to help us in our struggle, in what I think and what I hope is a transnational Intifada raging against capital.

What I have written is a quick run-down of what has happened in the past two days, some thoughts about how it could be read, a small conversations about some deeper issues that have coalesced such a wide-ranging grouping of people against Mubarak, some cautions or things to be weary of, and lastly some reasons to be optimistic, and of course inspired.

What is happening now in Egypt:

Mubarak has named a vice-president for the first time since 1981.  He is Omar Soliman the former head of intelligence.  Mubarak also named Ahmad Shafiq the former chief of air staff the new prime minister.  Both of these men are close confidants of president Mubarak and are high-ranking officials in the National Democratic Party (the ruling party of Mubarak in Egypt).  Mubarak is still in power and the constitution remains unchanged.  Mubarak and his allies hoped that people would see this is a large enough shake-up in the government to satisfy people’s demand.  It quickly became clear today that this hope was not going to become reality, as people took to the streets once again in larger numbers.

A UCSB Professor of Global Studies commented on his facebook status regarding the new VP:  “As I understand it, the newly appointed Vice President Soliman leads the anti-Gamal Mubarak faction within the old guard…. he is a CIA-type, not exactly a democrat. The new PM is an Air Force man, representing the return to power of the military over the police. This is not yet a reformist or transition govt!”

As I write this, Al Jazeera is still showing people in full control of Tahrir Square (liberation square).  Jazeera is also reporting that the Gamal Mubarak, the son of Mubarak who was being groomed to rule Egypt after Mubarak has arrived in London, with reports that he and his wife left with over 50 bags signaling a long stay (reports have put his current location at 28 Wilton Place, Westminster London SW1X 8RL).   This followed reports yesterday that very wealthy businessmen and some leading figures of the regime were fleeing Egypt on whatever planes are leaving Egypt or are attempting to rent private jets to leave.

On the streets of Cairo, Suez, Alexandria, and throughout Egypt reports are claiming that the military today seemed to stand by and not intervene in the protests, and the police seemed to have disappeared.  Despite this latest Al Jazeera reports claim over 100 deaths and more than a 1000 injured, which means the security forces are still engaging protests (they have compiled the number of deaths by visiting mortuaries across the main cities, which means there is a likelihood that the number is actually much higher).[1] There are also plain clothed security personnel that have been seen beating and arresting people.  Nevertheless there is no confirmation as to the position of the military vis-à-vis the protests.  In Tunisia, the unwillingness of the military to put down the protests on behalf of president Ben Ali is what ultimately sealed his fate and sent him packing to Saudi Arabia.  Similar outcome could be expected in Egypt if the military sides with the protesters, but to this point it is unclear that this is happening, and I speculate that the Egyptian military is 1) much more complicated and has many more levels and 2) is much closer to the Mubarak regime as evidenced of Mubarak appointing members of the military in the new cabinet.

There are also reports of looting across Cairo.  American media of course is heavily reporting this, as they have a pattern of not differentiating between popular protest and chaos.  Paranoid and obsessed with “law and order”, media outlets knowingly or unknowingly help authorities in clamping down on the democratic potential of crowds.  However reports of looting seems to indicate that they are becoming more of a problem.  I seriously doubt that considering the collective consciousness of the Egyptian populace, that looters can be part of their rank and file.  Rather what is more likely, and there have been reports to suggest this as well that members of the security personnel including police in plain clothes, and paramilitary organizations are leading this effort.

A UCSB Professor of Global Studies suggested earlier in this regard, “Egyptian government has in the last 20 years developed co-dependent relations with street gangs (baltagiya), that they are now unleashing on the public to loot; including what, to me, looks like a staged looting of the Egyptian Museum. They are hoping this will lead the public to beg the government and police to come back in to restore ‘order.’”  It is important to remember that a tactic of counter insurgency is to turn political opposition into acts of criminality, and to downplay political demands. This allows authorities to deal with protests not as having legitimate political demands but as lawbreakers.[2] As scholars of “social crime” succinctly put it in their seminal work Policing the Crisis, “Crime issues are clear-cut; political conflicts are double-edged. But a governing class which can assure the people that a political demonstration will end in a mob riot against life and property has a good deal going for it – including popular support for ‘tough measures’. hence, the ‘criminalisation’ of political and economic conflicts is a central aspect of the exercise of social control” (189-90).

Nile TV and Al Masriya, state controlled stations in Egypt are filled with reports of looting and people decrying looters and talking about the fear that chaos might overrun the country.  Following such reports, they immediately cut to security spokespeople or statements from the security personnel talking about the military beginning to take positions to combat looters. Therefore I am worried that looting in Egypt is only a way for the military to justify––in the name of restoring calm and “law and order”––intervention and suppression of protests in Egypt.  The inactivity of the military is disconcerting, the clam before the storm maybe?

US response and the threat of “passive revolution” in Egypt:

The US does not want any change in the current government.  Why would it? Its ideal scenario is for the current government to stay in power with Mubarak somehow reestablishing order by making some concessions.  I speculate that knowing the situation could make Mubarak’s position increasingly untenable, the US administration will want to see the current establishment remain in power without Mubarak as its head.  The best option it has here is for the military to take over. The Egyptian military has very strong connections to and coordinates with the US as well as the Israeli military and intelligence establishment.  More importantly for the US, the military can then create a cocoon for a new elite to emerge and establish a new order.

I think the US wants in any Egyptian government a: 1) commitment to the interests of Israel especially vis-à-vis Gaza, 2) commitment to neo-liberal reforms in the economy, and 3) a counter-weight to the Iran-Syria axis in the Middle East and a firm ally with Saudi Arabia in the face of Iran-Syria and popular movements throughout the Mid East, especially Islamist and leftist currents.

I think the Obama administration is going to stay silent on the issue in Egypt as much as it could, sticking to its mostly vague and meaningless statements that can be seen to support and oppose any action by any side.  They do not want to make the Carter mistake with the Shah of Iran in 1979, and pull their support from Mubarak and giving an opening to people to topple him.  As it becomes clear that Mubarak is about to fall the US will come out more publicly with indifference and maybe even opposition to Mubarak’s government and support for the military to bring back law an order.

El Baradei and the opposition:

People and media are focused on El Baradei as the former head of the International Atomic Energy Agency and a Nobel laureate, and a “democrat.”  I have no evidence to suggest that El Baradei does not want elections, more political freedoms, and an end to the NDP and Mubarak.  However I view him as a “technopole,” a technocrat turned politician.  He is part of the UN establishment, with probably close ties to international institutions and that cadre of transnational elites.  There is nothing to suggest that besides political change he has a fundamentally different economic vision than the free market and deregulated state ideology that has been the mainstay of the Mubarak regime.  He brings no fundamental threat to the US.

Let’s briefly rehearse what could happen if Baradei or someone like him has a chance at power.  Mubarak would step down; the military would take over and call for elections in 6 months.  Within those six months, Baradei who has name recognition will attract money from international and domestic sectors, especially liberal businesspeople.  Baradei will dominate news in the region and internationally.  Domestically he will unite the secular opposition parties behind him.  He could then get elected as the interim president with Muslim Brotherhood coming in second or third.  Baradei will bring in a cadre of technopoles and technocrats along with some opposition party members including the Brotherhood.  Remember that the Brotherhood much like the Islamists in Iraq such as the Da’wa has no economic ideology and in fact the leadership has a much more middle class composition.[3] Thus the Brotherhood is not going to stand up to the economic agenda of Baradei.  Together this Baradei interim government will write a new constitution that will entrench the neo-liberal reforms of Mubarak in a permanent constitution.  The novelty of this constitution is that it will bring about more political open-ness with elections, and bill of rights, a polyarchy of sorts which will be heralded as a democracy.[4] Then the interim government will dissolve making way for the first election under the new constitution.  The result will be the same economic structure, but with a new leadership that decapitates the revolutionary fervent and aspirations of the people, a “passive revolution.”  This “passive revolution” retains the social formation, and only introducing political reforms, but in doing so re-establishes hegemony.  A neo-liberal hegemony that retains Egypt’s integrated position within the global economy, its alliance with Israel, no threat to the Suez Canal and global trade, and most importantly gains consent from the people.  This hegemony will be much improved over Mubarak’s regime––it will rule with more consent than coercion.  This is the beauty of neo-liberalism.  Neo-liberalism can give political and cultural power and autonomy to popular forces, while retaining the social relations of domination.

My bottom-line as Professor Sohail Daulatzai reminded me is simply “Don’t just hate the player, hate the game!”

The simmering anger and displeasure of the people of Tunisia and Egypt that erupted was in a large part due to the quality of life and their impoverished conditions.  A major part of Muhammad Bouazizi’s complaints were economic hardships.  But these economic conditions are not the fault of Ben Ali and Mubarak, but rather due to the agenda of the global economy, and the transnational capitalist class that was imposed by these dictators with the blessing and cheerleading of the IMF, WB, and the UN.

The Multitude:

As I sit here in my comfortable apartment with the privilege of calculating from far away possible outcomes, people on Tahrir Square and in Casbah are making history.  Sadri Khiari, a Tunisian activist exiled in France since 2003 recently defined those in the streets, in a statement, as “the people who resist in the obscurity of everyday life. The people who, when forgotten too long, remind the world of their existence and break into history without prior notice.”[5] We have all been surprised and schooled by the power of the multitude, who without a leader or a party were able to topple one dictator and are threatening to bring another one down despite the misgivings of the most powerful of countries such as the US and their militaries.

Even though the lack of a clear ideological vision makes these movements susceptible to a passive revolution, their lack of party affiliation also makes them hard to de-mobilize.  As we are witnessing in Tunisia people are not going to go back home once the military takes over.  They are ready and willing to come out in their streets once again to ensure that the conditions that drove them into the streets are finally changed.  This might take a while.  They might go back to their homes as interim governments are announced and new constitutions are written, but this generation will remember that they did change one government, so they can change another.  No longer afraid of the coercive apparatus of the state, their consent becomes that much more important to gain for any government.

It is truly a good day to be a Middle Eastern.  Long live the people’s struggle in Iraq, Afghanistan, Palestine, Iran, Jordan, Lebanon, Yemen, Algeria, Tunisia, and Egypt… a region with a people in the trenches of a Transnational Intifada, a Global Insurgency!

I went to a talk on February 22 entitled “Disputing Israel’s Borders in International Law,” hosted by the Berkeley Federalist Society. It featured a conversation on Israeli borders, given principally by Professor Eugene Kontorovich of Northwestern Law University and by Professor Kate Jastram of Berkeley Law.

Professor Kontorovich took up the most time and energy, both in the talk and in the questions. If I may summarize his points, and then discuss my thoughts.

His primary aim was to argue against people who frequently cite international law, writ large, and the arms of various international organs as tools to present and legitimize particular points of view. Statements like “This particular action is against international law” becomes dispositive, instead of instructive or helpful. So, then, Kontorovich’s point was to decipher what was “binding” and what was “nonbinding” elements of international law, and to use that as a basis for understanding how borders in Israel work.

He began his talk by saying that he wasn’t interested in larger questions about the moral, religious, or political policy that often undergird many of these debates. His question, he disclaimed, was strictly concerned with deciphering the binding elements of international law.

Binding sources of international law

He initially qualified, and passed over, what he considered non-binding sources of international law. He identified two key non-binding sources of international law: United Nations General Assembly resolutions, and International Court of Justice decisions. All of these, he said, were non-binding, so they are not dispositive for determining who has legal “title” to disputed land in the region.

For him, in order to get to the crux of the issue, once must go back to the Balfour Declaration and Sykes-Picot. Through a methodical and selective extrapolation of historical events, Kontorovich argues that the 1967 borders aren’t really borders at all, and the West Bank isn’t really occupied at all, and that Israel has “title” in the narrow, legally acceptable and international-law-legitimized way. Rather than recognizing, as I think he should, that Sykes-Picot, the Balfour Declaration, and the UN mandate system has very little legitimacy or authority to discern what exactly should be the legal boundaries of the Palestinian state, he proceeded as if they were the alpha and the omega of these border disputes.

This, then, is my first question: who really believes that? Who really decides the contours of the Palestinian state based on the British mandate? What exactly does legal title in this mean? Is that was statehood is about – figuring out what the agreed-upon border dimensions imposed by the French and British were? For Kontorovich, it is. He even mumbled, fairly glibly, that these borders, as codified by Sykes-Picot and as the ultimate source of binding international law, are uncontested in the region, and everyone agrees on them. In other words, these borders, as they stand now, are undisputed.

Funny: that’s not how I read the history. If I know anything about history, I know that damn near ever single person living in the Middle East understands the borders they live under as totally and completely unbinding – as fluid, arbitrary, and the product of a treacherous colonial history. Sure, there might not be an uproar about them everywhere, but that seems a matter of convenience rather than a matter of principle. But even that is untrue: there have been uproars, and there continue to be. What do we make of the Kurdish problem? They were the group of people that Sykes-Picot totally ignored, that the logic of the imperial border-drawing didn’t quite understand and that wasn’t quite compatible with their homogeneous restructuring of an otherwise incredibly diverse and complicated region. What do we make of the rise of pan-Arabism, itself a distinct and complete reaction against the very arbitrariness of the Western-border apparatus seen to have been imposed on, but not consented to, by the Arabs of the modern Middle East? What about the rise of political Islam, a similar movement that understands statehood not in the precise terms of these borders but based on something entirely different? What about Saddam’s invasion of Kuwait? How about the bitter disputes over the Golan Heights between Syria and Lebanon?

The point here is that the very same legally “binding” borders that Kontorovich slyly asserted as legitimate and undisputed have been themselves disputed every since their founding. Why? Because they are not, and were never, self-determinative. There was no consent, so there has been conflict every since. This is the problem of legal “title” in the paradigm of Kontorovich – it’s the same problem that Native Americans confronted in Johnson v. M’Intosh, and the same problem that seems to gnaw away at every post-colonial region on the planet. What is to someone a foundational and binding source of “international law” is to everyone else a colonial project to whom little to no principled legitimacy emanates from.

Self-defense?

Kontorovich then suggested that Israel could potentially be considered to have legally acquired the occupied Palestinian territories as the spoils of as “self defensive” position in an armed conflict.  He recited the basic tenet of International Humanitarian Law, enshrined in the UN Charter, that the use of force is strictly prohibited, and the concomitant prohibition on the acquisition of territory through the use of force.  However, he then went on to suggest that while this prohibition of acquiring territory through the use of force was certainly true for aggressor states, that it may not be so for states that act in self defense.

Prof. Kontorovich recognized that there was no direct legally binding authority for the proposition that international law may allow for territorial acquisition by “defending” states, and indeed acknowledged that the international legal jurists have stated just the opposite in the last few decades.  He reasoned, nonetheless, that legal analyses that oppose the acquisition of territory regardless of who the aggressor was, were in fact not general rules that were emerging from a neutral IL community, but rather were in direct response to Israel’s occupation of the occupied Palestinian territory since 1967.  He further stated that a survey of pre-1967 international legal “text books” shows that at least two international legal scholars had not ruled out this theory of lawful acquisition of foreign territory.  Finally, he explained that this proposition was supported by the policy justification that the acquisition of territory of the aggressor state was a powerful deterrent, and a needed one given that as it stands now, countries that commit acts of aggression would only face sanctions.

The proposal that land may be lawfully annexed following an armed conflict by a state who claims it acted in self defense is legally flimsy and reckless, as well as morally troubling.  While Prof. Kontorovich declared that he was not taking a position on whether Israel’s entry into the 1967 War was in fact self defense, his theory obviously flowed from the assumption that it was.   His contention that international legal opinion against this interpretation of IHL should be taken with a grain of salt – because it does not represent a general rule but rather just a reaction to Israel’s occupation of the Palestinian territories – is not insightful.  International law necessarily develops as problems present themselves, and the fact that a country claiming to act in self defense would seek to acquire the territories of its enemy is sui generis in the modern context and limited to Israel, and thus a challenge to the international legal community.  There is no intellectual or legal basis to discount the international legal community’s response that the prohibition on acquiring land through acts aggression regardless of who the aggressor was, even if it is motivated by the particular Israeli/Palestinian situation.

Furthermore, Prof. Kontorovich offers no authority for this proposition as being rooted in international law besides the reference to two authors of pre-1967 text books.  These sources are particularly laughable considering Prof. Kontorovich strident dismissal of ICJ decisions and General Assembly resolutions as being binding or even guiding sources of international law.

Finally, Prof. Kontorovich’s policy justification that aggressor states should face tougher deterrents than mere sanctions misrepresents the international community’s response to aggression.  There have been very few modern transgressions of this legal precept, and those have been met not only with debilitating economic sanctions but also military responses (Iraq in 1991 and Yugoslavia, for example). Furthermore, there are much more powerful policy reasons that weigh against his proposition.  First, such a rule would incentivize countries to wage “pre-emptive” war (which both Israel claimed in 1967 and the US claimed in its 2003 invasion of Iraq) as a way to reap the territorial rewards of being the “defensive” state.  Under Prof. Kontorovich’s theory, Iraq could lawfully be the 51^st state of the US based on its claim that it was a defender state in the Iraq war. What’s more, Prof. Kontorovich’s proposition reflects an outdated vision of international law as only standing for the protection of states and state interests.  International law has thankfully evolved significantly in the last half century to encompass protection of the rights of individuals and self-determination of peoples.  Prof. Kontorovich’s proposition would justify the forced renationalization of entire populations into the “defender” state, and would constitute a grave violation of the right to self-determination.

Conclusion

In the end, the talk ended with a few exchanges of questions and the quiet filing out of the small classroom. Professor Kontorovich spun a tightly-wound tale, making it difficult to respond to and appreciate the profoundly troubling foundation upon which his claim of Israel’s legitimate title to the West Bank and Gaza comes from. It was thoroughly entertaining, if for nothing else because it brewed the intense ire of at least two members of the audience who took it upon themselves to write up a massive response paper (i.e. what you’re reading now). But, beyond that, it seems like this position is so out-of-line with the consensus (and rational) thinking on the issue so as to have been almost laughable in veracity. But he was provocative enough to spur this piece – so maybe it worked?

[This is a short piece I wrote for a course on legal writing. I plan on turning this into a larger, publishable article. I will try to return to this subject a number of times over the next few months, and add iterations to this that will ultimately (and hopefully) coalesce into an article with some redeeming value. I welcome any comments you might have - they will be enormously helpful.]

“Into that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions. I am not concerned to inquire whether judges ought to be allowed to brew such a compound at all. I take judge-made law as one of the existing realities of life. There, before us, is the brew.”

-Cardozo’s “The Nature of the Judicial Process”

I believe in a more prominent role of theory and theory-based education in legal pedagogy. Though legal pedagogy does an adequate, if not good, job at producing legal minds after graduation, it could still stand to benefit, I think, from a more sustained and rigorous focus on theory. Reading Holmes and Cardozo only makes me even more firm in holding this opinion.

What exactly do I mean by theory in this context? Legal education as I have experienced it seems predicated on teaching both substantive areas of the law (e.g. doctrine and policy) and on procedural areas of legal practice (e.g. trial practice and public speaking). My focus for this piece is on the former. I generalize legal education to cover two key areas of substance: matters of legal doctrine, and matters of policy that underlie, undergird, and give meaning to these doctrines. A student not only learns “the law” as it is practiced or written, but also is allowed the opportunity to inquire into its efficacy, its history, its drawbacks, and its place within the larger body politic.[1] This seems relatively straightforward, and fairly intuitive.

The problem is, though, that a student is not asked to interrogate how she is to necessarily learn both the doctrine and how to interrogate the policy behind and the context of the doctrine. I think it’s fairly safe to say that legal pedagogues assume that students will know how to begin tackling these questions, and how to understand these questions. They often draw upon, as Cardozo says, the “ingredients” that composes them as intellectual beings and hope they are equipped to deal with these questions.[2] Beyond a (superficial) recognition that students, lawyers, and judges make decisions based on these “ingredients,” there appears very little in the way of critical study that interrogates exactly how these decisions are made, let alone how these decisions should be made. This is the role of theory that I find missing in legal academia.

Consider the study of criminal procedure, specifically of the duties and limitations of investigative policing in the United States. In a traditional course, students are asked to learn and to engage with Fourth Amendment jurisprudence on how law enforcement should conduct criminal investigations. Often this takes the form of reading Supreme Court opinions on areas of study, with students asked to evaluate current high court jurisprudence. It is not clear, though, how a student should proceed with this evaluation? What are the ingredients that a student may draw upon in order to make an evaluative determination as to the validity of a particular Fourth Amendment doctrine? Should a student be asked only to evaluate the arguments cited in the majority and dissenting opinions of a particular case discussing that doctrine? Can students bring to bear any personal experience they have had with the police, and use that experience to inform their judgments? Are students expected to know, or encouraged to know, empirical data that analyzes the efficacy of a particular police practice? Are students expected to know the history of American policing? Anglo-American policing? Are students expected to conduct field research on the topic while they are in class? Some of these questions are easier to answer than others, but they raise an important point: if, as Cardozo (and Holmes before him), describe the process of judicial rule-making as one involving a set of data points, stretching across a person’s experience, knowledge, custom, morality, and politics, how are we to evaluate and to hone an effective and just balancing of these different data points? How is a student to know how to engage in their criminal procedure class? What is a professor to expect from their students in this regard?

My thesis is that these questions need to be more rigorously dealt with in order to develop a more grounded and relevant legal pedagogy. I have often considered a radical restructuring of legal education and practice that would do away with law schools as we have set them up in the Anglo-American tradition, and instead diffuse legal education across the disciplines that we have already developed that study the particular legal questions that students want to know anyway. Environmental law would be taught primarily in environmental science, biology, biochemistry, and geology departments. Corporate law would be taught in business schools. Constitutional law would be taught in political science, civics, and policy schools. Law school as we know it would be transformed and slimmed down only to develop very narrowed sets of legal technocrats with basic knowledge of contracts, torts, and real property (maybe basic civil procedure as well). What would result would be a system whereby environmental law would not be a field for individuals disconnected with the substance and theory of the environmental sciences, but would instead be part and parcel of a greater education on issues relating to the environment. Environmental lawyering would require a background in environmental science and policy, but only a background in environmental science. An environmental lawyer would have some basic theoretical and methodological experience in the field she was practicing in, and would be able to make her decisions based on this substance background since she has a theoretical grounding in the subject. Likewise, the law of criminal procedure might be better suited for those who can actually engage in the theoretical questions I posed earlier.[3]

This is one particularly radical way to get at the problem of theory in legal education. I think this radical reinvisioning of legal education comes with serious challenges, of course: Who would be allowed to practice law? Does anybody get to practice law in any of the fields where they have a degree? What about interdisciplinary matters? Don’t we need a special class of individuals specially equipped with the training to deal with questions only relevant to legal practioners? These questions are, of course, what make my proposed system only a mere proposal. But nonetheless I think it responds to a legitimate concern that I have seen with legal education as I’ve experienced it, and it responds to the now-articulated nature of the judicial process as Cardozo explains it. This system seeks to better understand the proper place of theory in legal education, and I hope that a full-on investigation of the merits of more theory-focused legal pedagogy can happen.

The model as it stands now seems to create two key disadvantages: it places lawyers and judges (and, in turn, politicians) in a specially powerful position to determine how particular legal regimes should be created and governed, and it necessarily complements this position of power with a legal training that is necessarily disconnected from the very disciplines and fields of life that such regimes seek to govern. Only when a legal pedagogy sufficiently tailored to these walks of life is developed can the makers and arbiters of legal regimes be more equipped to handle the unique responsibility of legal governance.

[2] “[The judge] must balance all his ingredients, his philosophy, his logic, his analogies, his history, his customs his sense of right, and all the rest, and adding a little here and taking out a little there, must determine, as wisely as he can, which weight shall tip the scales.”

[3] This would, as a side effect, lead to judicial rule-makers who do not make decisions on these matters in abstraction, but would instead have some background in the day-to-day realities of the crime control system and its impact on lay citizens (or whatever other field a case may arise out of). This seems to be a problem especially pervasive in the study of and adjudication of Fourth Amendment law.

Glenn Greenwald, one of, if not my favorite, political writer, wrote up a pretty provocative article on the decision. He takes both a self-described “First Amendment absolutist” stance to protect the First Amendment and also a practical, pragmatic look at what McCain-Feingold did and (more importantly) didn’t do. Read it here.

He wrote a follow-up to this post, after getting semi-berated by his own commentators. Read the follow-up here.

In response, Professor Lawrence Lessig, one of my legal intellectual heroes, issued a rebuttal to Greenwald’s initial post. In it, he makes probably the most nuanced and interesting case against the decision that I think I’ve read to date. His critique is  similar to the common sense critiques that have come out of the liberal/progressive crowds in recent weeks. In addition, he does a great job of legally attacking the decision in a way that I haven’t heard many legal commentators do before. You can read it here.

The crux of Lessig’s argument is the analogy he makes to Russ v. Sullivan, a 1991 Supreme Court decision upholding limits on doctors’ speech. In it, the Supreme Court said that that there was no First Amendment problem with state regulations that prevented doctors from providing certain kinds of speech/advice to their patience in family planning clinics that have received some federal funding. The logic? Since they received some government funds, the government has the right to restrict their speech in a way that wouldn’t be constitutional if they were completely free from government finance.

If that decision holds water, why not, then, can’t the government also restrict the speech of corporations that it creates? Corporations are not persons in the same way that human beings are, insofar as the rights they are afforded aren’t inalienable by virtue of their divine (or secular?) creation. Rather, they are creations of the state – the state has allowed them to exist, structured the rules by which they exist, and has regulated them in ways that it cannot regulate human beings. Why not, then, can it also restrict their speech? Read Lessig’s response for a more detailed analysis.

As for me, I’m not yet decided. I’m reading the case next week as part of a course on, coincidentally, the First Amendment. I’ll have more thoughts then. Until then, happy reading.