December 30, 2005

A New Year's Resolution

When I graduated from high school, I did not so much decide to go to college as I simply just went to college. College after high school had been my path for as long as I could say “university.” Many of my peers joined me in going to college. Others went straight into the work force. And still others joined the armed services. I remember registering for the selective service on my eighteenth birthday, but I did not ever consider enlisting after high school. I even wondered why those who did would.

Nearly a decade of perspective later, I find myself in awe of those who, at the age of eighteen, made the decision to serve our country. I wonder where they are today, how they were affected by their experience. I hope they benefited from their service because I know that I have.

If you have read this column, you know I am generally not one to put a giant magnetic “support our troops” ribbon on the back of my car or go around with chest-thumping patriotism. I find that I serve my fellow citizens by helping others gain the full protection of the law as a lawyer and by providing information and a critical perspective of our government and society as a writer. I consider myself a patriot, just not a very loud one.

Americans who volunteer to serve this country as soldiers or sailors or pilots or otherwise demonstrate the highest form of public service at the earliest of ages. On the cusp of adulthood, they dedicate their own lives to the good of an entire country. They serve millions of people they will never meet. In a time of war, they do so at great peril, but even in a time of peace the commitment is heroic. In times like these, their sacrifice is magnified and celebrated, though just as admirable as ever.

Each servicemember joins for his or her own reasons. Each has his or her own family. Each has his or her own friends and hobbies and interests and home town. Each deserves our deepest respect and most heartfelt gratitude. Each deserves to be taken care of, not just physically, but emotionally and economically. Each took on the responsibility of serving each of us and it is therefore our responsibility to ensure that their service is rightfully honored and recognized.

Those who serve our country are not responsible for the decisions of our leaders. They are not responsible for the policies of our government. They are only responsible for their decision to step up and put their own life on the line for the national good. For that, they are entitled to our highest esteem. If they do make mistakes, they, like any American, should be held responsible. But even their mistakes do not diminish their act of commitment.

As I reflect, I am very glad I went to college. It was the right decision for me. But I am proud of my fellow graduates who chose the route of national service. I am proud to live in a country that has so many of these extraordinarily dedicated individuals. I am honored to have them serve in my name. Their voluntary assumption of the responsibility of serving and protecting an entire nation is overwhelming. There are many Americans who accomplish amazing feats and do tremendous good for our country, but serving all of us in the armed service is special. And those who do it deserve to be thanked and thanked often. This is my resolution for 2006.

December 23, 2005

Dallaire Redux

In 1994, Canadian general Romeo Dallaire led a UN peacekeeping mission in Rwanda. General Dallaire, operating with a limited mandate and a small contingency of troops, pleaded with his superiors for the materials and authority to make a real difference stopping the genocidal slaughter unfolding outside his window. Instead, the UN, at the insistence of the United States, decided to do just the opposite, shrinking General Dallaire's mission and handcuffing him as the country descended into death.

After several years suffering beneath the memories of his failure in Rwanda and nearly committing suicide, General Dallaire has heroically become one of the world's most outspoken critics of inaction in the face of genocide. In 2004, as the 10th anniversary of the Rwandan genocide arrived, General Dallaire told his story around the world, pleading that the international community not repeat Rwanda's mistakes in Sudan. The heads of those who heard General Dallaire invariably nodded in agreement. This man is right, we all thought. We must do things differently next time.

Yet, here we are.

On December 31, American funding for the African Union force charged with maintaining some semblance of security in Darfur will expire. This week, Congress rebuffed attempts to reinstitute next year's funding of the mission, funding the United States pledged and that Congress scrapped from the budget last month. This is not a murky situation. We know that genocide is occurring. We know that the African Union is the only force that can help -- in fact, we supported sending them there in the first place. We know that the funding for the AU is necessary to continuing their mission of protecting refugees and discouraging further destruction of villages. We know that our funding will expire. Yet we have scrapped our previous commitment to provide a third of the budget and refuse to restore it, putting the AU's mission in grave jeopardy. Once again, we are pulling the rug from beneath the only viable force who can confront a desperate situation.

Secretary of State Condoleeza Rice, who has championed the Darfur cause by visiting the region and keeping it high on the State Department's radar, desperately lobbied lawmakers to put the AU funding back into the defense appropriations bill for 2006. "We are in critical need of funding," Rice wrote to Congressional leaders, "to continue this mission at a robust level in 2006." However, Rice's pleas to restore the funding in the defense appropriations bill were ignored. While Democrats mustered the will to filibuster the bill due to a provision that would have allowed oil drilling in Alaska, there was hardly a peep from either party regarding the shameful failure to fund the very troops American leaders hailed as the answer to the unfolding tragedy in Sudan. Although to this point the United States has admirably provided $160 million to the mission, as well as logistical military assistance, such as airlifts, this act -- or failure to act -- by Congress threatens to undo any progress that has been made. By shirking our share of the burden, the U.S. not only deprived the AU of much-needed funding, it sent the signal to other donors -- the European Union -- that funding for this mission is not a high priority. How can we expect others to do their share when we fail to do our own?

Certainly, somewhere in Darfur there is an African Union general playing the role of Dallaire in this sequel. He is looking on the landscape beyond his window, seeing where he and his troops could provide valuable and vital protection to helpless civilians. He can see the attacks and gunfights his troops could stop -- or at least discourage -- if only they were given the tools and the authority. And he, like Dallaire, will soon get a call informing him that at this time of critical need -- for in a genocide, all times are of critical need -- his mission is not being enlarged, but limited. He, like Dallaire, will ask why, and he will learn that the international community, led by the American Congress, has determined that his mission is no longer worth funding. He, like Dallaire, will be handcuffed and forced to witness genocide. In a decade, he may travel the globe speaking to audiences of nodding heads and pleading that these mistakes not be repeated. Again. I hope this sequel never plays out, but after this week's failure by our Congress, I am not optimistic.

December 16, 2005

Intelligent Intelligence Reform

With a rare and welcomed dose of humility, President Bush acknowledged this week that the information he fed the nation to build support for the war in Iraq was flawed. "It is true that much of the intelligence turned out to be wrong," the President admitted. "As President, I am responsible for the decision to go into Iraq."

But the intelligence relied upon for the war did not "turn out" to be wrong. It was known at the time to be flawed. The claim that Iraq had attempted to obtain weapons-grade uranium in Niger was known to be based on fabricated documents, yet it made its way into the President's State of the Union address. The much cited but unproven link between Al Qaeda and Iraq was likewise based on information known to be unreliable. The source of the "credible" (Administrations word, not mine) evidence linking Saddam Hussein to Al Qaeda was a top Al Qaeda leader captured in Pakistan in 2001. After questioning by the US, this leader was sent to Egypt where he "confessed" (my word) that Al Qaeda and Iraq had worked together for training purposes. The link between Al Qaeda and Iraq was so often cited that, despite overwhelming evidence to the contrary, a majority of Americans thought Saddam Hussein was directly involved with the September 11 terrorist attacks.

As early as February 2002, the Defense Intelligence Agency expressed skepticism about the Al Qaeda leader's confession, noting that Egyptian authorities were known to use harsh treatment (read: torture) to gain information. Any information so obtained, the D.I.A. reasoned, could be considered coerced and unreliable. In other words, torture can lead to flawed intelligence. The President has now acknowledged that the pre-war intelligence was faulty and he places upon his own shoulders the duty to fix it. "I'm also responsible for fixing what went wrong by reforming our intelligence capabilities," the President added. "And were doing just that."

Are we? As the President shifted his PR approach from repeating "victory" to accepting responsibility, National Security Advisor Stephen Hadley was working on behalf of the Administration to alter language in a military spending bill that would ban cruel, inhuman, and degrading treatment of prisoners. The provision, inserted by Senator John McCain and overwhelmingly approved in the Senate, met with resistance, including a threatened veto, from the Bush camp. Wednesday night, however, the House followed the Senate's lead and urged the negotiators to accept the bill as written rather than to include the broad exception for CIA interrogators proposed by the Administration. So rebuked by both chambers, President Bush cut his losses and agreed yesterday to the ban with only slight modification. The provision should be passed into law before the end of the year.

I applaud the Administration for acknowledging mistakes and stating an intention to undertake reforms that will prevent their repeating. However, matching such rhetoric with true reform should not be as difficult as the Administration made it in this case and the Administration's track record on matching words with action has been dismal. The Administrations reasoning in opposition to this ban was deeply flawed and led to a destructive, unending cycle: (1) Torture is leading to faulty intelligence; (2) The faulty intelligence is leading us into war; (3) The war is used as a recruiting tool to create more terrorists; (4) To combat this threat, we need better intelligence; (5) To gain that necessary intelligence, we must be allowed to torture; (6) Return to step 1 where the circle continues. Despite this flawed reasoning and despite the claim that the President wants to fix what went wrong, the Administration continued to fight Senator McCain's ban until the last moment (and may still actually be resisting, albeit less openly - House Armed Services Committee chairman Duncan Hunter has vowed to oppose the measure and tie it up in committee).

Senator McCain's triumph is a step forward. The Administration's kicking and screaming reluctance to accept this step is not encouraging. "Now we can move forward," Senator McCain stated from the oval office, where the agreement was announced, "and make sure that the world knows, as the President has stated many times, we do not practice cruel, inhumane treatment or torture." The President has indeed repeated this claim many times, but the pronouncement that the US does not torture is more credible coming from Senator McCain because he, unlike the President, has backed up his words with action. Let's hope the President can follow the Senator's lead.

December 09, 2005

Raising Questions About Don't Ask

One of the more frustrating things about being a lawyer is when a very interesting case completely overlooks the larger context in which it is set. Such was the case this week when the Supreme Court heard arguments in a case over whether the government can legally cut federal funding to law schools who have banned military recruiters from campus on the basis that the military discriminates against gay and lesbian students.

The case stems from the Solomon Amendment, a statute that allows the government to restrict federal funding to aid recipients who do not allow equal access to federal recruiters, including the military. In the past, law schools banned military recruiters because the schools do not allow any recruiters who discriminate and because the military’s Don’t Ask, Don’t Tell policy does discriminate against gay and lesbian students. The most recent change to the Solomon Amendment, providing that such action by one part of a university could put in jeopardy federal funding for the entire university, was intended to put the squeeze on the law schools. It worked. Facing a loss of billions of dollars in funding for research and financial aid, universities forced their law schools to allow military recruiters on campus. Unhappy, a group of law schools sued.

The Court of Appeals found for the law schools, concluding that enforcement of the Solomon Amendment forced schools to propagate the military’s message of discrimination, thus violating the law schools’ collective right to free speech. The Supreme Court, however, appears to see things differently. In oral arguments on Tuesday, the justices seemed sympathetic to the government’s claim that they desire equal access, not any endorsement of military policies. Chief Justice John Roberts summed up the government position, “If you want our money, you have to let our recruiters on campus.” The schools could, of course, refuse the federal funding and continue to bar military recruiters, but a stand on this principle, the schools have determined, is not worth the large sums they would forfeit as a result.

Although this case may be interesting to constitutional law scholars, the debate about military access and free speech is really a legalistic offshoot of a separate and more interesting debate about the wisdom of continuing to ban gays from the military. The case provides an opportunity to reevaluate the root of this issue. Since 1993, the military has operated under the supremely silly Don’t Ask, Don’t Tell policy in which gay Americans could serve in the military so long as they do not engage in “homosexual conduct” – a category that includes admitting you are gay. If the military determined that this discriminatory policy were no longer useful, the debate about access to law schools would be rendered moot.

The military has been resistant to admitting gays in the past and remains so today. There is concern that gay soldiers could disrupt a military unit’s cohesion by creating tensions among soldiers and eroding morale. However, in the dozen years since enactment of the Don’t Ask, Don’t Tell policy, public acceptance of homosexuality has come a long way. In those same dozen years, more than 10,000 gay servicemembers have been discharged for being gay. At a time when troop recruitment is slumping and many of our soldiers are facing the prospect of multiple return trips to Iraq, the military may be more open to allowing all willing Americans, regardless of sexuality, the opportunity to serve.

On this issue, the United States is out of step with the majority of NATO militaries as well as that of Israel. In 1999, the United Kingdom lifted a ban on homosexuals and allowed gays to serve. The reaction to lifting the ban has been “less dramatic than expected,” according to Michael Codner of the Royal United Services Institute, a research group with close ties to the British military. Codner did acknowledge that acceptance varied by field: “If you’re a paratrooper and you’re gay, you probably keep your head down, whereas in other units, such as the medical services, it’s less important.”

The American policy has led to the discharge of 54 Arabic translators, an area of desperate need for the military, and an area where acceptance of gay service members would likely be high. Lt. Col. Allen Bishop, a West Point professor who has argued for the law’s repeal, wrote “The war in Iraq highlights the shortsightedness of discharging Arabic linguists who happen to be gay.”

To say that the presence of homosexuals in the military would erode morale underestimates the number of service members who would accept a gay peer and caters to the prejudices of the minority who would not. The military has always been a leader in providing opportunities to a diverse group of Americans. It is time not only to think about whether the military should be allowed to demand access to law schools, but more importantly, to rethink the wisdom of continuing to exclude gay Americans from serving their country.

December 02, 2005

'Tis the Season

For the past two and a half years, genocide has been unfolding on our watch. It is not being done with the devastating speed of Rwanda’s 100 days in 1994 or with the machine-like efficiency of the Holocaust, but it is genocide nonetheless. Innocent people are being targeted and killed because of who they are and where they live. Villages are being destroyed. Women are being raped. Children are being slaughtered.

This genocide is happening – and has been happening – in Darfur, a Texas-sized region in western Sudan. Darfur is made up of peasants of African descent and nomadic herders of Arabic descent. African rebels, fed up with the economic and political suppression from the national government in Khartoum, rose up several years ago. The government’s response has been criminal. Rather than engage the rebels – either militarily or in dialogue – the government enlisted the services of an Arab militia, the Janjaweed, to simply wipe out the African tribes in their entirety. Often with logistical support from the national military, the Janjaweed have obliterated hundreds of African villages and displaced millions of people. The displaced live in unsecured refugee camps under the constant threat of a return of the Janjaweed. Several hundred thousand have been murdered already. It is a desperate tragedy.

And we are allowing it to continue. By “we” I do not mean our government, but each of us individually. Certainly our government could do more. So could we.

We are all, of course, against genocide. The deliberate targeting of one segment of a population for destruction is loathsome to us all. Yet, few of us take action consistent with these near-universal humanitarian sentiments. When it comes to taking action, we are struck by a host of paralyzing feelings. We feel separated (Sudan is far and I know nothing about the victims) and confused (I don’t know who is truly at fault in this complex situation). We feel helpless (I cannot make much of a difference anyway) and overwhelmed (there are so many organizations already taking action and I do not know which is best). These emotions combine to freeze us into collective inaction. This is part of the reason genocide persists: the good people of the world do not act to stop it.

Samantha Power, author of A Problem from Hell, the definitive account of American responses to genocide in the 20th century, and the best professor I ever had, often talks about a toolbox of potential responses to genocide. She notes that the American government could use the military intervention tool or the economic sanctions tool or the diplomatic pressure tool. Too often, however, the government makes an all-or-nothing decision on the military intervention tool and takes all the other tools off the table. Since we cannot take military action that would really stop genocide, the government seems to be saying, we cannot take any action at all.

As private citizens, we face the same dilemma. Since we cannot stop the genocide on our own – and none of us can – we do not feel that we can do anything at all. Writing a letter or giving a small donation seems a paltry and wholly insignificant response to the brutal murder of thousands of human beings. But it is not. We each have our own toolbox containing a wide spectrum of possible action. From one end of that spectrum, we could volunteer for an aid organization and actually go to Sudan to take action, but that is a highly unrealistic option for most of us. Alternatively, we could simply support financially the organizations who are doing good work in Darfur. Still, most of us do not have unlimited budgets to give endlessly. But we can all visit the websites of these organizations or sign up for their monthly newsletters. This allows the organizations to show leaders that there is a constituency of concerned citizens they are lobbying on behalf of.

We have political tools. We can write letters to our government representatives alerting them to our outrage that our government has not put more pressure on the Sudanese government to end the massacres or on the international community to take more forceful action, such as sanctions. We can vote those who do not act out of office. We have economic tools. We can support efforts to divest money away from companies doing business with the Sudanese government, sending the signal that if they will work with murderers, we will no longer work with them. We have social tools. We can write letters to our local newspapers expressing surprise that the genocide is not being adequately covered. We can learn more ourselves and inform our friends about this quiet genocide. Education and publicity are so important to keeping the pressure on our leaders to act.

In Ohio, Ginghamsburg Church created its own tool. Last year, the church began a remarkable campaign to spend less of Christmas presents and donate the savings to aid for Darfur. They raised $327,000 and are continuing the effort this year. In that spirit, I am donating a full night of Chanukah to Darfur advocacy. I have selected two organizations I will donate to and I will write to my representatives and the President voicing my outrage. As a Jewish person, I am particularly sensitive to the threat of genocide and I feel a special responsibility to ensure that this happens never again. During the Holocaust, it was the acts of individuals – not of slow-footed governments – that saved lives. We must follow in the tradition of those courageous citizens who provided hiding places or overlooked false passports to help fellow human beings survive. Taking a stand against the decimation of any group is important to us all. So long as genocide can happen to anybody, it can happen to anybody.

I am happy to provide resources or sample letters to anyone who would like to join in this effort this holiday season.