Donald Trump: Bullying Role Model for Children

by Yale Magrass & Charles Derber, authors of Bully Nation. Written in response to this article.

In Bully Nation, we challenge the widespread idea that children are the main perpetrators or victims of bullying. Rather, we argue that kids who bully are mirroring behavior they see all around them in the adult world. Kids naturally mimic adults, whether it be their parents, their teachers or the President of the United States. In our corporate, militarized society, adults have to bully to get ahead or just survive. So our kids are exposed all the time to adults who are unwittingly teaching them the way to treat others.

President Trump is the most visible adult on the planet. And it is hard for anybody – whether child or adult – not to take notice. As President, he legitimates almost any conduct he does, including brutal bullying. As shown in our book and in our many subsequent op-eds, we know from numerous documented reports by teachers that school kids taunt their minority peers saying “The President is going to deport you – go home.” Or “Trump is going to build a wall to keep you out” and then they wall off the targets from playing with them or joining their play group. Or they make fun of disabled kids, the way Trump mocked a disabled reporter.

American children not only live in capitalism, but in the world’s dominant militaristic empire. Although Trump may be particularly blatant, as commander-in-chief, all presidents have the duty to be bully-in-chief. Even a softer president like Obama, who did not have an instinctive bullying personality, did not change this requirement.

Trump is under investigation and may face impeachment for his possible collaboration with another bully, Russian President Vladimir Putin, in interfering with the recent American election. While what Putin allegedly did may not be defensible, he is hardly alone. Israeli Prime Minister Benjamin Netanyahu more directly intervened in the American election process when he addressed Congress, hoping to rally support for Republicans.

American Presidents have a long history of bullying other countries, interfering with their democratic elections, and overthrowing leaders who dared to act contrary to American interests. When Columbia would not permit the United States to build a canal connecting the oceans to expedite corporate trade, President Theodore Roosevelt orchestrated a revolution and created a new country, Panama. In 1953, after the democratically elected Prime Minister of Iran Mohammad Mossaddegh nationalized Iran’s oil industry, the American CIA staged a coop which resulted in the restoration of Shah Mohammad Reza Pahlavi. The following year, President Eisenhower prevented an election in South Vietnam when he was told “a possible 80 per cent of the population would have voted for the communist Ho Chi Minh as their leader.” When, in 1973, democratically elected President Salvador Allende of Chile tried to nationalize mines owned by American corporations Kennecott and Anaconda Copper, the CIA had him overthrown and replaced by General Augusto Pinochet.

Yes, Trump is a bully who may inspire children to bully and it is essential to get him out of the White House. However, only a fundamental reorientation of American society, from top to bottom, will reduce bullying.

Charles Derber is professor in the Department of Sociology at Boston College.
Yale R. Magrass is Chancellor professor in the Department of Sociology/Anthropology at the University of Massachusetts-Dartmouth.

J Edgar Hoover’s Oversteps: Why FBI Directors are Forbidden from Getting Cozy with Presidents

By: Douglas Charles, author of Hoover’s War on Gays & The FBI’s Obscene File. (Article originally published by The Conversation.)

How are U.S. presidents and FBI directors supposed to communicate?

A new FBI director has recently been nominated, former Assistant Attorney General Christopher Wray. He will certainly be thinking carefully about this question as he awaits confirmation.

Former FBI Director James Comey’s relationship with President Donald Trump was strained at best. Comey was concerned that Trump had approached him on nine different occasions in two months. In his testimony to Congress, Comey stated that under President Barack Obama, he had spoken with the president only twice in three years.

Comey expressed concern about this to colleagues, and tried to distance himself from the president. He tried to tell Trump the proper procedures for communicating with the FBI. These policies have been enmeshed in Justice Department guidelines. And for good reason.

FBI historians like myself know that, since the 1970s, bureau directors try to maintain a discrete distance from the president. This tradition grew out of reforms that followed the often questionable behavior of former FBI Director J. Edgar Hoover, who served from 1924 to 1972.

Over this long period, Hoover’s relationships with six different presidents often became dangerously close, crossing ethical and legal lines. This history can help us understand Comey’s concerns about Trump and help put his testimony into larger context.

As the nation’s chief law enforcement arm, the FBI today is tasked with three main responsibilities: investigating violations of federal law, pursuing counterterrorism cases and disrupting the work of foreign intelligence operatives. Anything beyond these raises serious ethical questions.

From FDR to Nixon

When Franklin Roosevelt became president in 1933, Hoover worked hard to develop a close working relationship with the president. Roosevelt helped promote Hoover’s crime control program and expand FBI authority. Hoover grew the FBI from a small, relatively limited agency into a large and influential one. He then provided the president with information on his critics, and even some foreign intelligence, all while ingratiating himself with FDR to retain his job.

President Harry Truman didn’t much like Hoover, and thought his FBI was a potential “citizen spy system.”

Hoover found President Dwight Eisenhower to be an ideological ally with an interest in expanding FBI surveillance. This led to increased FBI use of illegal microphones and wiretaps. The president looked the other way as the FBI carried out its sometimes questionable investigations.

But when John F. Kennedy became president in 1961, Hoover’s relationship with the president faced a challenge. JFK’s brother, Robert Kennedy, was made attorney general. Given JFK’s close relationship with his brother, Hoover could no longer bypass his boss and deal directly with the president, as he so often did in the past. Not seeing eye to eye with the Kennedys, Hoover cut back on volunteering political intelligence reports to the White House. Instead, he only responded to requests, while collecting information on JFK’s extramarital affairs.

By contrast, President Lyndon Johnson had a voracious appetite for FBI political intelligence reports. Under his presidency, the FBI became a direct vehicle for servicing the president’s political interests. LBJ issued an executive order exempting Hoover from mandatory retirement at the time, when the FBI director reached age 70. Owing his job to LBJ, Hoover designated a top FBI official, FBI Assistant Director Cartha “Deke” DeLoach, as the official FBI liaison to the president.

The FBI monitored the Democratic National Convention at LBJ’s request. When Johnson’s aide, Walter Jenkins, was caught soliciting gay sex in a YMCA, Deke DeLoach worked directly with the president in dealing with the backlash.

One might think that when Richard Nixon ascended to the presidency in 1968, he would have found an ally in Hoover, given their shared anti-Communism. Hoover continued to provide a wealth of political intelligence to Nixon through a formal program called INLET. However, Hoover also felt vulnerable given intensified public protest due to the Vietnam War and public focus on his actions at the FBI.

Hoover held back in using intrusive surveillance such as wiretaps, microphones and break-ins as he had in the past. He resisted Nixon’s attempts to centralize intelligence coordination in the White House, especially when Nixon asked that the FBI use intrusive surveillance to find White House leaks. Not satisfied, the Nixon administration created its own leak-stopping unit: the White House plumbers – which ended in the Watergate scandal.

Not until after Hoover’s death did Americans learn of his abuses of authority. Reform followed.

In 1976, Congress mandated a 10-year term for FBI directors. The Justice Department later issued guidelines on how the FBI director was to deal with the White House and the president, and how to conduct investigations. These guidelines have been reaffirmed, revised and reissued by subsequent attorneys general, most recently in 2009. The guidelines state, for example: “Initial communications between the Department and the White House concerning pending or contemplated criminal investigations or cases will involve only the Attorney General or the Deputy Attorney General.”

These rules were intended to ensure the integrity of criminal investigations, avoid political influence and protect both the Justice Department and president. If Trump attempted to bypass these guidelines and woo Comey, that would represent a potentially dangerous return to the past.

Cabazon at 30: Do the Canons of Construction of Federal Indian Law Remain Viable?

by Ralph A. Rossum, author of The Supreme Court and Tribal Gaming

This spring marks the thirtieth anniversary of the United State Supreme Court’s decision in California v. Cabazon Band of Mission Indians (1987), the landmark decision that gave the nation tribal gaming. The most recent statistics available from the National Indian Gaming Commission show what an enormous impact Cabazon (along with the Indian Gaming Regulatory Act [IGRA] of 1988) has had:  In 2015, 238 gaming tribes with 474 gaming facilities operating in 28 states generated $29.9 billion in gross revenues. These revenues have helped to promote tribal economic development and self-sufficiency and to fund strong tribal governments.

The Court ruled on behalf of the Cabazon Band because it employed long-established canons of construction of federal Indian law; it construed ambiguous language in Public Law 280 to the tribe’s benefit and held that California could not exercise civil-regulatory jurisdiction in Indian County. But, perhaps because of the financial success of the gaming tribes and their aggressive use of casino profits to influence the political process, advance tribal interests, and negotiate more favorable state-tribal gaming compacts (through lobbying, campaign contributions, endorsement of candidates, and political organization), the Supreme Court since Cabazon has become decidedly less inclined to employ these canons to the tribes’ advantage. With one exception, the Court has handed the tribes one defeat after another.

The one exception is United States v. Lara (2004). In Duro v. Reina (1990), the Supreme Court held that an Indian tribe lacked sovereign authority to prosecute Indians who were not members of that tribe. Disagreeing with that decision, Congress the next year amended the Indian Civil Rights Act of 1968 in order to “recognize and affirm” the “inherent power” of Indian tribes to exercise criminal jurisdiction over “all Indians.” In Lara, the Court held that this congressional recognition was a relaxation of previous restrictions that Congress had placed on the exercise of the tribes’ inherent sovereign authority and not a delegation of federal prosecutorial power to them, and that, therefore, a federal prosecution of Billy Jo Lara for assaulting a federal police officer did not violate the Double Jeopardy Clause of the Federal Constitution’s Fifth Amendment, where he had previously been prosecuted for and convicted of “violence to a policeman” under the law of an Indian tribe of which he was not a member. The Court’s decision was, from the tribes’ point-of-view, a gratifying re-affirmation of the concept of inherent tribal sovereignty.

Lara dealt with the criminal jurisdiction of tribal courts. Four years later in Plains Commerce Bank v. Long Family Land and Cattle Company (2008), the Supreme Court addressed the civil jurisdiction of tribal courts, and, by then, its turn against the tribes was clearly apparent. Plains Commerce Bank, a non-Indian bank, sold land it owned in fee simple on the Cheyenne River Sioux Indian Reservation to non-Indians. The Longs, an Indian couple who had been leasing the land with an option to purchase, claimed the bank discriminated against them by selling the parcel to non-Indians on terms more favorable than the bank offered to sell it to them. The couple sued in tribal court, claiming discrimination, breach of contract, and bad faith. Over the objection of the Plains Commerce Bank, the tribal court concluded that it had jurisdiction and an Indian jury ruled against the bank. The court awarded the Longs damages plus interest and also gave the Longs an option to purchase that portion of the fee land they still occupied, nullifying the bank’s sale of the land to non-Indians. In a 5–4 decision, Chief Justice Roberts emphasized how limited the Court’s understanding of tribal sovereignty was; he underscored that “tribes do not, as a general matter, possess authority over non-Indians who come within their borders,” and pronounced that “this general rule . . . is particularly strong when the nonmember’s activity occurs on land owned in fee simple by non-Indians.”  He noted that “our cases have made clear that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it.” On that basis, he held that the “Tribal Court lacks jurisdiction to hear the Longs’ discrimination claim because the Tribe lacks the civil authority to regulate the Bank’s sale of its fee land.”

In the spring of 2008, I attended a conference on tribal sovereignty at the Columbus School of Law at the Catholic University of America; the Plains Commerce Bank case was about to be argued before the Supreme Court, and several tribal leaders and their attorneys were present. I learned from their commentaries that parties filing amicus briefs on behalf of the Long Family were admonished to avoid using the term, tribal sovereignty, for fear that the Court’s reaction to its use would be negative.

In Carcieri v. Salazar (2009), the Court was called upon to interpret the provision of the Indian Reorganization Act of 1934 (IRA) authorizing the secretary of the interior to acquire land and hold it in trust “for the purpose of providing land for Indians.”  The IRA defines Indian to “include all persons of Indian descent who are members of any recognized tribe now under Federal jurisdiction.” The Narragansett Tribe in Rhode Island, which lost federal recognition in 1880 but regained it in 1983, asked the secretary of the interior to accept land into federal trust to reestablish its reservation, and the secretary complied. The tribe asserted that it would use the land to build apartments, but the State of Rhode Island worried that the Narragansett might also use it to build a casino and that it would lose real estate taxes if the land were placed in trust. Consequently, Rhode Island sued, arguing that the secretary lacked the authority to acquire the land in question because the phrase now under Federal jurisdiction meant under jurisdiction in 1934 when the act was passed. The lower federal courts concluded that the meaning of now was ambiguous (because now could mean currently) and that under the canons of construction customarily applied under federal Indian law, the IRA was to be liberally construed in favor of the Indians, with all ambiguities resolved in their favor, and with tribal property rights and sovereignty preserved unless Congress’s intent to the contrary was clear and unambiguous. The Supreme Court, however, reversed. Justice Thomas declined to apply the canons and held for a six-member majority that “the phrase ‘now under Federal jurisdiction’ refers to a tribe that was under federal jurisdiction at the time of the statute’s enactment.” Interestingly, Justice Stevens, who dissented in Cabazon in which the canons of construction were applied, dissented here because they were not: “The Court ignores the ‘principle deeply rooted in [our] Indian jurisprudence’ that ‘statutes are to be construed liberally in favor of the Indians.’ See Cohen[‘s Handbook of Federal Indian Law] §2.02(1), p. 119 (‘The basic Indian law canons of construction require that treaties, agreements, statutes, and executive orders be liberally construed in favor of the Indians.’).”

In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchack (2012), the Court continued to complicate efforts by tribes to bring land into federal trust for gaming purposes The band, an Indian tribe federally recognized in 1999, requested that the secretary take into trust on its behalf a tract of land in Wayland Township, Michigan, which it intended to use “for gaming purposes.” The secretary took title to the property in 2009, one month before the Carcieri decision. David Patchak, who lived nearby, filed suit in federal district court asserting that the IRA did not authorize the secretary to acquire the property because the band was not a federally recognized tribe when the IRA was enacted. Alleging a variety of economic, environmental, and aesthetic harms as a result of the band’s proposed use of the property to operate a casino, he requested injunctive and declaratory relief reversing the secretary’s decision to take title to the land. Without reaching the merits, the district court dismissed his suit, ruling that he lacked standing to sue, only to be reversed by the Court of Appeals for the District of Columbia Circuit. In an 8–1 vote, the Supreme Court affirmed the appellate court and held that Patchak had standing to challenge the secretary’s acquisition of the land. Speaking for the Court, Justice Kagan argued that the IRA requires the secretary to acquire land with its eventual use in mind, after assessing the potential conflicts that use might create. And, she continued, because the IRA encompasses the land’s use, neighbors to that use (like Patchak) are reasonable challengers of the secretary’s decisions, and their interests, whether economic, environmental, or aesthetic, come within the IRA’s regulatory ambit.

In Michigan v. Bay Mills Indian Community (2014), Justice Kagan held for a five-member majority that tribal sovereignty prevented Michigan from suing the tribe in question for operating a casino located outside of Indian country because Congress in IGRA had not delegated to the states that power.  That would seem to be a victory for the tribes, and a reemergence of a more sympathetic Court, but the tribe’s victory was pyrrhic, for Justice Kagan went on to make clear that Michigan could “resort to other mechanisms, including legal actions against the responsible [tribal] individuals” who were operating the casino.

And, finally, in Adoptive Couple v. Baby Girl (2015), Justice Alito for a five-member majority refused to construe liberally the Indian Child Welfare Act of 1978, enacted to help preserve the cultural identity and heritage of Indian tribes, and thereby prevent a non-Indian family, proceeding under state law, from adopting an Indian child. To do otherwise, as Justice Thomas pointed out in his concurrence, would oblige the Court to accept an unconstitutional law: “The Constitution does not grant Congress power to override state law whenever that law happens to be applied to an Indian.”

As a result of its rulings in Plains Commerce Bank, Carcieri, Match-E-Be-Nash-She-Wish, Bay Mills, and Adoptive Couple, tribal leaders now seek to keep cases from reaching the Supreme Court, believing that it is better to accept adverse decisions by lower courts, where the impact is geographically limited, than risk having those adverse decisions affirmed by the Supreme Court and applied nationally.

In Cherokee Nation v. Georgia (1831), Chief Justice Marshall described the tribes as being in “a state of pupilage.” Because not grown up, they needed the Court’s solicitude and the protection of what developed into the canons of construction of federal Indian law. Cabazon allowed the tribes (or at least the gaming tribes) to grow up. The political muscle these tribes now exercise seems to have convinced the Court that they no longer need the Court’s (or the canons’) protection. Thirty years ago, tribal leaders celebrated Cabazon as a great victory; it was, but its legacy has proven to be more complex and challenging than they imagined at the time.


 

Ralph A. Rossum is the Salvatori Professor of American Constitutionalism at Claremont McKenna College. He is the author of multiple UPK titles, including Antonin Scalia’s Jurisprudence, Understanding Clarence Thomas & Text and Tradition.

 

Making, and Un-Making, Environmental Law: Earth Day’s Uncertain Dawn

By Karl Boyd Brooks, author of Before Earth Day; The Origins of American Environmental Law, 1945-1970

President Donald Trump is about as subtle as a claw hammer. Two weeks ago, he went to Environmental Protection Agency headquarters in Washington, D.C., to announce his disdain for nearly everything the agency had been doing during the Obama Administration. The presidential criticism amounted to a stunning rebuke of an agency that has, for over 45 years, earned solid marks from Americans for using law to safeguard their lives, communities, and future opportunities.

Presidents usually visit EPA to highlight some new initiative to take care of our environmental resources: the air, land, and water on which our lives, and our American prosperity and liberty, depend. President Trump went instead to lash the agency, demean its staff, and challenge the bipartisan legal legacy that has made Americans more prosperous and free by protecting their public health.  Picture the Trump/EPA moment as the President of the United States flashing his big, fat middle finger at the agency.

Those of us who have worked for EPA, and know first-hand about its people’s dedication and professionalism, found Trump’s symbolism telling:  there the president was — in the Rachel Carson Room, for gosh sakes — signing executive orders to speed up coal mining, roll back air quality protections, and undermine this nation’s signal effort to mitigate the grievous impacts of climate change. For good measure, President Trump paraded a handful of sheepish coal miners in front of his EPA ceremony to buttress his campaign pledge to “make coal great again.”

This month marks the 48th Earth Day. Throughout April, in events large and small, choreographed and spontaneous, Americans join their fellow passengers on Spaceship Earth to salute what Apollo 8’s astronauts, on Christmas Eve 1968, fondly called “our good earth.”  Now that the President of the United States has publicly trashed EPA, our premier environmental law enforcement agency, we should think a little harder about how our lives, our communities, and our legacy depend on environmental law.

EPA began in 1970. A very different kind of Republican president, Richard M. Nixon, created this new agency by welding pieces of other, older federal agencies into a single force combining environmental science, education, lawmaking, and enforcement. Of course, that was big news. And those were very different times than today. But we should widen our focus on EPA and 1970 a little to get the full story about the agency, to understand how radically disruptive and destructive President Trump’s environmental actions appear, and to appreciate how hard they will be to carry out. A little history about environmental law in America will put 1970 in perspective, situate EPA in a long and proud governmental tradition, and link today’s environmental challenges to those our grandparents faced after World War II.

A decade ago, I began writing Before Earth Day: The Origins of American Environmental Law. I wrote the book to answer a simple, but surprisingly elusive, question: where did American environmental law come from? I’d taught the subject at the University of Kansas (KU), to both undergrads and law students, for a number of years. I’d studied the American legal system and American environment systematically since beginning my history PhD work at KU in 1996.  And I’d spent much of my adult life working in and around law and the environment as a lawyer, elected legislator, and citizen activist in my home state of Idaho. And yet, despite some three decades of immersing myself in the challenges we create by living on this earth, I had no more clear idea about environmental law’s back-story than on the day I started law school in 1980.

Even if you’re not a lawyer, and even if you don’t put yourself in the “environmentalist” camp, you probably know a little about the famous federal laws that help keep us healthy and productive: the 1970 Clean Air Act, the 1972 Clean Water Act, and President Nixon’s 1970 pen-stroke that created the United Environmental Protection Agency. My book took a look at the “environmental decade” of the 1970s and found some important precursors to all those important laws. In fact, the more I looked into American environmental law’s “origin story,” the less I believed 1970 was the be-all end-all of the story. My book didn’t mean to diminish the hard-working, creative, and determined Americans who took up the fight against pollution and waste and injustice as the Seventies dawned. What Before Earth Day did is actually make those pioneers more traditional and less revolutionary, and their many accomplishments therefore more durable and defensible.

Law doesn’t just “happen.” Rules don’t appear spontaneously. Systems don’t come from nowhere. Environmental law, like environmentalism itself, emerged somewhat slowly after 1946. And like the ideas, imagery, and rhetoric of environmentalism, the principles and practices of environmental law have one foot planted in cautious tradition and one foot planted in bold reform. In fact, one reason why environmental law has stuck around so long is its very distinguished pedigree. Some of our most important environmental law principles date back to the early 20th century. Others emerged during the New Deal’s darkest days and the postwar era’s bright promise.

We should appreciate American environmental law for the careful, thoughtful, incremental advance it represents over the earliest American attitudes toward the natural world. At the origin of the American Republic, most laws encouraged people to own, use, and waste natural resources and systems. As late as 1900, few laws restrained factory-owners from pouring their waste into the air, water, and landscape. Even in the 1950s, government agencies – federal, state, and local – could plow a roadway through a wetland, or pour chemicals onto a forest, without telling neighbors, sharing the basis for their decision, or accepting constructive criticism. By 1970, though, even “Before Earth Day,” all those older ways of doing business (and damage) to the natural world had been replaced or substantially modified by the legal system we know today. President Trump may complain that dredging a wetland takes too long and emitting air pollutants has gotten too expensive. But that’s what environmental law has gained for us: breathing space, health benefits, and public participation.

President Trump and EPA Administrator Pruitt have announced drastic plans to shear off many key environmental law principles and to slash EPA’s capacity to make and enforce environmental law. What may restrain them as much as public outrage and business indifference (just check out how the energy industry has voted with its investment dollars against coal and for wind) is history and tradition. EPA may be only 47 years old, and it may have appeared when men tended their sideburns and women tottered on their platform shoes (not so different than today), but the underlying legal rules, principles, and precedents are far older. With roots that run so deep in American legal, cultural, and political soil, POTUS and Pruitt will find it harder than they imagine to tear up our environmental law system.

 

 

Karl Boyd Brooks is a Clinical Professor and Program Director, LBJ School of Public Affairs, University of Texas-Austin and former associate professor of history and environmental studies, and courtesy professor of law, University of Kansas; and U.S. Environmental Protection Agency Regional Administrator and acting Assistant Administrator

Yamashita’s Ghost Inspires PBS Special

Allan Ryan had no plans to write a book about Japanese General Yamashita.

“I was planning on writing about the Nuremberg Trials,” Ryan says. “The more I researched the trials, however, the more I realized there was little new to say.”

While on vacation in Vermont, Ryan had an idea.

“I was on a bike ride on a particularly challenging hill and for some reason I thought of General Yamashita” Ryan says. “I did some research and realized that , other than a 1947 book by his lawyer, there had been no thorough analysis of his case. So I started to dig in.”

UPK published Ryan’s Yamashita’s Ghost; War Crimes, MacArthur’s Justice, and Command Accountability in 2014.

In 1946 General Tomoyuki Yamashita, Japan’s most accomplished military commander, was tried, convicted and executed for war crimes.

The atrocities of 1944 and 1945 in the Philippines—rape, murder, torture, beheadings, and starvation, the victims often women and children—were horrific. They were committed by Japanese troops as General Douglas MacArthur’s army tried to recapture the islands. Yamashita commanded Japan’s dispersed and besieged Philippine forces in that final year of the war. But the prosecution conceded that he had neither ordered nor committed these crimes. MacArthur charged him, instead, with the crime—if it was one—of having “failed to control” his troops, and convened a military commission of five American generals, none of them trained in the law. It was the first prosecution in history of a military commander on such a charge.

In a turbulent and disturbing trial marked by disregard of the Army’s own rules, the generals delivered the verdict they knew MacArthur wanted. Yamashita’s lawyers appealed to the U.S. Supreme Court, whose controversial decision upheld the conviction over the passionate dissents of two justices who invoked, for the first time in U.S. legal history, the concept of international human rights.

“I think the 2 dissenting opinions are fascinating,” Ryan says. “They both address the efforts of Yamashita to control his soldiers while attacks from US forces made it nearly impossible.”

Ryan’s 2014 book, Yamashita’s Ghost, draws from the tribunal’s transcripts and Ryan vividly chronicles this tragic tale and its personalities. His trenchant analysis of the case’s lingering question—should a commander be held accountable for the crimes of his troops, even if he has no knowledge of them—has profound implications for all military commanders.

“I was struck by how atypical Yamashita was,” Ryan says. “He was a poet and he had a very strong understanding of the Laws of War. In fact, he punished soldiers under his command who had committed crimes against civilians or prisoners of war. That was unheard of in the Japanese military.”

Yamashita’s Ghost serves as the basis for the first hour of PBS’s new three-hour special Dead Reckoning: War, Crime, and Justice from WWII to The War on Terror, which premiers March 28. The program follows war crimes investigators and prosecutors as they pursue some of the world’s most notorious war criminals. The principles, legal doctrine and tactics that emerged from those pursuits now inform the effort to expose, prosecute, and punish present day human rights violators.

The film begins with vengeance: U.S. General Douglas MacArthur’s 1945 military trial of Japan’s General Tomoyuki Yamashita for horrific atrocities in the Philippines. Despite the lack of any evidence that Yamashita ordered or even knew about the atrocities, he was condemned to death, raising the question: Are commanders responsible for crimes their troops commit?

“I had worked with Emmy-award winning writer and director Jonathan Silvers previously on a PBS documentary about Nazi war criminals in the post-war years,” says Ryan, who is credited as a co-producer on Dead Reckoning. “When we finished that project he asked ‘What’s next?’ I said “How about General Yamashita?” and that got the ball rolling. Jonathan has a profound commitment to examining war crimes and atrocities and asking, ‘why?’ and ‘how” and ‘who is responsible?”” So it’s  exciting to see the work we put into this finally come to bear. It’s disturbing, but these questions are disturbing. We’ve just tried to bring some clarity to them.”

Allan A. Ryan was Director of the Office of Special Investigations in the Criminal Division of the US Department of Justice, responsible for the investigation and prosecution of Nazi war criminals in the United States. He has also served as an advisor on war crimes prosecutions to the Government of Rwanda, and has taught the law of war and genocide at Boston College Law School since 1990 and at Harvard University since 1997.

His books include Yamashita’s Ghost: War Crimes, MacArthur’s Justice and Command Accountability, (University Press of Kansas 2012); The 9/11 Terror Cases: Constitutional Challenges in the War Against al-Qaeda, (University Press of Kansas 2015) and Quiet Neighbors: Prosecuting Nazi War Criminals in America (Harcourt Brace Jovanovich 1984)

Russian Hacking Scandal & Investigatory Options

by Katy J. Harriger, author of The Special Prosecutor in American Politics

As calls increase for independent investigation of the Russian hacking allegations, it is worth taking the time to look back at our modern American experience with such investigations. That experience tells us that it is important to think about the trade-offs involved in moving outside of the normal governmental process to gain independent investigation. In this post I’ll explore those trade-offs, based on my study of the use of special prosecutors in the 20th century.

While the use of special prosecutors is not unusual in state and local politics, until the Watergate scandal of the 1970’s they were a little used mechanism in national politics. Special prosecutors are used when there is a need for reassuring the public that allegations of wrongdoing by public officials are being investigated, and if necessary, prosecuted, without political bias. When calls for special prosecutors increase, it suggests a decline in elite and/or public confidence that regularly elected and appointed public officials can be trusted to impartially investigate allegations against high level officials, who may be either their superiors or people with whom they have close political or professional ties.

Before Watergate, special prosecutors had been used in national politics only during the infamous Tea Pot Dome Scandal of the 1920’s and during a less famous Tax Scandal during the Truman administration. After Watergate, however, because Congress passed the Ethics in Government Act of 1978, there were at least 20 special prosecutor investigations between the time the act was passed and when it was allowed to expire in 1998. Arguably, only two of them were comparable to the Watergate scandal in that they implicated the president himself in the wrongdoing: the Iran-Contra scandal of Ronald Reagan’s second term and the Whitewater/Monica Lewinsky scandal during Bill Clinton’s second term. By the time Congress failed to renew the act both sides of the political aisle felt they had been unfairly harmed by the existence of the independent counsel provisions and decided the arrangement created more problems than it solved. Instead, the Department of Justice under Janet Reno promulgated a set of rules for determining when DOJ leadership should recuse itself from an investigation and under what circumstances they appoint an independent investigator (called special counsel). The one such appointment that we know about was for the investigation and prosecution of then V.P. Cheney’s chief of staff Scooter Libby, for his role in leaking the name of CIA agent Valerie Plame.

The election of 2016 brought the spotlight back to the special prosecutor. During the election Donald Trump promised that, if elected, he would appoint a special prosecutor to investigate all the criminal activity he had accused Clinton of having committed. Indeed, he, his surrogates, and his supporters pre-judged the outcome of that investigation with the campaign chant “Lock her up!” Since Trump’s election, a new special prosecutor demand has arisen, this time from his critics concerned about troubling information about Russia’s attempt to use hacked material to sway the election against Clinton and Trump’s advisors’ meetings with Russian officials during this time.

The arguments for pressing for the appointment of a special prosecutor removed from direct control by politically interested officials are several and not to be easily dismissed:

  • The allegations involve multiple advisors and officials with direct connection to the President
  • The Attorney General, Jeff Sessions, is a close associate and seen as a partisan for the President
  • Public opinion polls show that a majority of those polled (made up of a very large majority of Democrats, a slight majority of Independents, and a quarter of Republicans) think some kind of investigation is needed either by Congress or a special prosecutor. This suggests a high level of skepticism about whether regular attorneys in the Department of Justice are sufficiently disinterested in the outcome of such an investigation.

But there are also arguments or questions that encourage caution before concluding that a special prosecutor is necessary in order to get to the bottom of the Russian hacking scandal:

  • Is there sufficient evidence that a crime was committed that justifies a criminal investigation with a prosecutor, a grand jury, and the possibility of a criminal trial? The burden of proof for criminal charges is high – responsible prosecutors always ask whether a jury is likely to convict on evidence that shows that the crime occurred “beyond a reasonable doubt”.   Refusal to prosecute doesn’t mean there is no reason to believe wrongdoing occurred. It just means we can’t meet the high standard to proof required of the prosecutor to gain conviction. The tradeoff involved in having a prosecutor in a situation like this is that inability to convict for violation of a criminal law can be interpreted as lack of evidence of wrongdoing, abuse of the public trust, or unethical conduct. These are not legal equivalents. Just because one is not a “criminal” does not mean one meets the ethical standards we desire for our public officials.
  • What is most important: public understanding of what happened during the election of 2016 or prosecution of the associates of the president who may have been complicit in the foreign attempt to influence the election? This is a judgment call but merits careful consideration. The tradeoff is between the greater public exposure to the evidence of what happened that can be generated through a congressional committee hearing or a special commission and the ability to prosecute specific criminal wrongdoing. It may well be that there is insufficient evidence to successfully prosecute anyone for violation of criminal laws against foreign attempts to influence elections, but that does not mean that there is insufficient evidence that there were inappropriate and unethical collaborations between Trump advisors and the Russians. Congressional committees and independent commissions are more likely to produce this kind of information. Then the burden is on voters to decide in the next election whether or not the evidence merits rejection or return of the incumbent implicated by the evidence.
  • Why not have both? In Watergate there was a special congressional investigation and a special prosecutor. While there was sometimes tensions between the two entities, one could argue that it was the combination of the two that led to both the president’s resignation and the prosecution of key actors in the break-in and cover-up.   But there is a counter example that must also be remembered. In the Iran-Contra scandal the decision by Congress to grant immunity in exchange for testimony to key actors in the affair made it extremely difficult for the special prosecutor to pursue his case. In the end, the convictions he gained in the Oliver North and John Poindexter cases were overturned on appeal because he was unable to prove that the prosecution had been untainted by the immunized testimony. Other special prosecutors who have been brought into a case after congressional investigations have begun, even when testimony has not been immunized, have reported that their investigation was made more difficult by the public airing of witness testimony.

All of these considerations suggest that simultaneous congressional hearings/investigations and special prosecutor investigations are difficult to accomplish without undermining the actual ability to prosecute should crimes be revealed. Watergate suggests it may be the best way to go, but Iran-Contra suggests that it should not be done unless Congress is willing to forgo use of its authority to immunize witnesses who could be key to prosecutions. But choosing one path over the other should be done only with a full consideration of the tradeoffs. One route maximizes the democratic process, using the normal checks and balances of the system, with the payoff usually being maximum information for the citizen about what happened. It works best when members of Congress find the will to cooperate in a bipartisan way.  If one party calls all the shots and it’s the party of the president, there is little likelihood that some significant swath of the public will accept the outcome. The other route tends to maximize independence (also interpreted as non-partisanship) and requires the norms of the criminal justice process be followed. Those being investigated have the protections of due process and the high standard of “beyond a reasonable doubt” to protect them. If a prosecution happens, the public will get a full airing of the issues that relate to the criminal charges brought, but many aspects of the affair will be irrelevant in a criminal trial. If a special prosecutor decides not to indict, the public will have very little information on what happened and why because it is not the practice of prosecutors to provide detailed explanations for decisions not to prosecute.

Congress has begun its investigation and it will no doubt be watched closely by those suspicious of whether the party in power will follow the evidence that is harmful to the president and his associates. The Attorney General has recused himself and it remains to be seen how the Associate Attorney General will assess the situation and exercise his power to request a special counsel for a criminal investigation. Whether the public can be fully informed of the Russian interference with the election and there can be successful prosecution of those (if any) who broke criminal laws remains to be seen.

Stay tuned.

Katy J. Harriger is a Professor and Department Chair in the Department of Politics and International Affairs at Wake Forest University

 

How the War Over Obamacare Can Erode American Democracy

by: Daniel Béland, Philip Rocco, and Alex Waddan, authors of Obamacare Wars

“I can’t answer that question.” That was House Speaker Paul Ryan’s response when asked how many people would lose insurance if his plan, the American Health Care Act, became law. Ryan’s reticence reflects the political reality Republicans presently face. After six years of promising to repeal and replace Obamacare, Republicans now control Congress, the White House, and a majority of state governments and so they need to deliver on their rhetoric.

Yet, as initially laid out, Ryan’s plan seems to invite rather than deflect political pain. The proposal for flat tax credits would likely increase premiums for many lower and middle income Americans, while providing tax relief for higher earners. The plan would make major cuts to Medicaid, which covers millions of low-income Americans while paying for roughly half of all live births and the vast majority of nursing home stays. Unsurprisingly, healthcare industry stakeholders from consumer groups to the American Medical Association oppose the plan.

So, why has Ryan led his party into supporting a plan that will only exacerbate the most unpopular aspects of health care provision? As our book Obamacare Wars suggests, the answer lies with how partisanship has trumped constructive efforts at bipartisan policy making. In March 2010, every Republican representative voted against passage of the ACA. After that, rather than helping fix problems with the law as it was rolled out, most Republicans, at both the federal and state level, aimed at undermining effective implementation of the reform.

For example, in Congress Republicans gutted the risk corridor program, designed to stabilize the individual market as insurers developed experience with covering new and costly populations of consumers. When premiums increased as a result, Republicans simply blamed Obamacare itself. As we detail in our book, in the states, many Republican Governors and state legislatures did not join with the Medicaid expansion and refused to establish their own state level insurance exchange.

Importantly, not all efforts at obstruction were successful. The Obama administration was quickly able to implement regulatory reforms, such as banning insurers from discriminating against consumers with pre-existing conditions and requiring insurers to cover dependent children up to the age of 26. The Ryan plan spares these especially popular provisions from the chopping block.

But just as partisanship largely shaped the ACA’s implementation, it now shapes the fight over repeal. In drafting their plan, House Republicans shut out policy expertise, even from conservative wonks like Avik Roy and James Capretta. Instead, they relied on party insiders, convinced that the only “problem” is the fact of the ACA’s initial passage, but there is irony in the Republican resolve. The ACA was modeled on ideas previously endorsed by conservatives and implemented in Massachusetts under Mitt Romney. This has left Republican leaders with few options they can brand as a distinctive “conservative” alternative. How do you privatize a law that already relies on private markets? How do you “devolve” a law that already relies heavily on action by state governments? The answer that Ryan proposes amounts mostly to spending cuts and upward redistribution that will hurt the Republicans’ own electoral base.

If politicians still fear electoral backlash for decisions that harm voters, the AHCA is unlikely to survive in its current form. Yet, the efforts to keep policy under wraps and to push through key decisions without extensive deliberation suggests that Ryan thinks policy effects could be decoupled from electoral punishment. Perhaps, when Republican voters experience sticker shock at the physician, Obamacare will still be blamed. This seems to be the outcome Ryan is gambling on. His willingness to throw the dice illustrates the intensely partisan context in which Obamacare developed. Republicans simply heaped all political blame for bad outcomes on Democrats. If they can continue to do so while running government at all levels, it will have ramifications beyond the ACA. Rather, it will mean that partisanship is capable of eroding the foundations of electoral democracy itself.

Daniel Béland, Philip Rocco, and Alex Waddan are the authors of Obamacare Wars: Federalism, State Politics, and the Affordable Care Act (University Press of Kansas, 2016).

A President and Predators

by Frank Van Nuys, author of Varmints and Victims; Predator Control in the American West

9780700621316From the distraught and possibly jaundiced perspective of folks on the left wing of the political spectrum, “emboldened” has become a go-to word to describe opponents on the right. Conservatives. White nationalists. Anti-Semites. Racists. Xenophobes. Misogynists. All have been emboldened by the triumph of Donald Trump, not to mention liberated by the presumptive death of “political correctness.” For environmentalists, the new administration’s determination to steamroll “job-killing” regulations and Congress’s moves to eliminate nettlesome rules, deconstruct the Environmental Protection Agency, and gut the Endangered Species Act signify other alarming ramifications of that which the emboldened are capable.

Apparently, opponents of decades-long programs to reintroduce and facilitate the recovery of predators are feeling emboldened as well. The introduction of legislation in January to remove federal protection for wolves in four states – Michigan, Wisconsin, Minnesota, and Wyoming – underscored a potentially significant shift in the perpetual conflict over management of predators. Occurring just days before Trump’s inauguration, the bill may have reflected a sense of confidence on the part of farmers, ranchers, trappers, hunters, and others critical of wolf recovery that a Republican administration held considerable promise for transferring the bulk of wolf management decision-making from the US Fish and Wildlife Service to the affected states. In broader terms, elements intent on rolling back the government’s oversight in wildlife management and environmental regulation should feel a sense of giddy anticipation at the arrival of a new era of relaxed federal controls and states’ rights.

gray-wolf_01_ngsversion_1484679603276_adapt_676_1The Gray Wolf State Management Act of 2017 (H.R. 424 and S. 164) orders the Secretary of the Interior to reissue final rules issued in December 2011 for the Western Great Lakes, and in September 2012 for Wyoming, that had removed wolves from Endangered Species Act protection when not on federal properties subject to more focused protection regimes (such as national parks). Court challenges by wolf advocates had led to suspension of the delisting directives for those regions. Those advocates fear, and anti-wolf forces hope, that the administrative and legal stalemate can be broken and predator protections weakened, at least. By barring judicial review, the proposed legislation removes one of the key tactics utilized by wolf supporters since the first attempt to delist wolves in the Northern Rockies in 2002. That is nothing new, it turns out. Congress’s unilateral removal of protection for wolves in Idaho and Montana in April 2011, signed into law by President Barack Obama as part of a hard-fought compromise on enacting a budget and debt-relief package, also blocked judicial review.

Opponents of delisting claim wholesale destruction of wolf populations in the four states will certainly occur should the suspended rules be enacted, and they deplore the wolf hunting seasons that have taken place in Idaho and Montana, and, briefly, Wyoming, over the last several years. State game agencies maintain that it is in their interest to carefully monitor harvest levels to avoid relisting, and, frankly, population estimates in Idaho and Montana seem to bear that out. Idaho’s estimate of 786 wolves in 2015 represents an increase of close to 100 wolves over the 2012 estimate that I noted in Varmints and Victims. [https://idfg.idaho.gov/sites/default/files/idaho-wolf-monitoring-progress-report-2015.pdf ,p. 70] Montana’s estimated wolf population is still in the hundreds while roughly 4,000 range across the western Great Lakes region. Wolf backers may be suspicious of game agencies’ statistics, but there is no serious reason to doubt their general accuracy. Wolf management plans agreed to by federal and state officials require the states in the Northern Rockies to maintain a population of at least 150 wolves and at least 15 breeding pairs, and both Idaho and Montana exceed those minimums by significant amounts. To this point, natural increase and migration appear to have prevented crashing wolf populations despite hundreds lost to hunters and trappers each year. Unless Congress or the Trump administration decide to target those benchmarks, wolves are in no immediate danger of being annihilated when placed under state management.

Not surprisingly, when stories about the harm being done or contemplated by either emboldened “wolf haters” or defensive “wolf lovers” come across our social media feeds or appear in newspapers, we react according to our political and environmental predilections. I am as guilty of that as anyone. Yet, as someone who has been cheered by the slow and steady recovery of mountain lions, grizzly bears, and wolves in parts of the West, I remain cautious about jumping to conclusions about what impacts the proposed legislation will actually have. Judging from the relatively stable populations in the Northern Rockies since wolf hunting began a few years ago, even the most emboldened among the animal’s detractors in Wyoming and the Great Lakes states should not look forward to revival of a wolf-free environment. On the other side, friends of wolves can be skeptical but not necessarily panicked by the current drift of policy. It’s a long game, this tussle over predators. Stay vigilant, certainly, but it is unlikely, at least in this corner of the constant adjusting to life in the Alice-in-Wonderland fog of Trump’s America, that the apocalypse is nigh.

The Gray Wolf State Management Act of 2017 has recently been subjected to some informational hearing activity, and agricultural interests are pressing for expedited passage to provide additional protection to livestock entering calving season. Once the bill emerges from committee and becomes the subject of additional debate, amendment, and eventual passage, emboldened combatants on both sides will be ready to rumble. At least a constitutional legislative process still exists and wolves cannot be simply outlawed and their extermination decreed from on high sans some semblance of public input. Although a dubious proposition to the most jaded among the nation’s beleaguered citizenry, the United States still operates under the rule of law. The most enduring challenge for opponents of delisting and wolf hunting is indeed embedded in the intent of the Endangered Species Act itself, a fact all sides in the predator debates need to acknowledge. The goal of achieving recovery for a listed population, then delisting and allowing states to manage that population was designed to achieve measurable outcomes that would satisfy most, if not all, stakeholders. This is, according to media accounts, what the Fish and Wildlife Service would like to see happen. As much as it must pain millions of Americans who love wolves and hate the idea of losing even one to trapping or hunting, this proposed legislation does not represent a particularly radical departure from the always contentious process of making policy for predator management.

fvannuys

Frank Van Nuys is professor of history at South Dakota School of Mines & Technology and author of Americanizing the West: Immigrants, Race, and Citizenship, 1890–1930.

The Tenacity of Hate

A submitted post by Rebecca Barrett-Fox, author of God Hates; Westboro Baptist Church, American Nationalism, and the Religious Right

The Sunday service at Westboro Baptist Church is over, and some members of the small, Topeka, Kansas-based church move on to music practice. They’re working on a hymn familiar to many Protestants this afternoon and later, some of the younger women will practice a parody of a pop song, its familiar words about love and romance replaced with a message about God’s hatred for America. Church members are quite talented, and the choir sounds good.

img_9363I hear it from the nursery that adjoins the church sanctuary, where some of the youngest participants in church life are playing.  As the women rehearse, I work through the theology that allows them to sing a hymn celebrating Christ’s redemptive death and a pop song celebrating the damnation of gay people in the same afternoon. A young mother is in the room, too, bouncing a baby in her arms. A blonde-haired cherub is showing me some toys and telling me about the Disney princesses she likes best in her sweet toddler voice. It turns out we share some favorites, and I join her in her play. Through the open door, and we hear her mother’s voice distinctly in the choir. It breaks the little girl’s concentration, but I assure her that her mama will be back soon, and we settle back into our game, pulling out new toys to join the scene we’ve already constructed. Behind the little noises we are making in our own world, the choir sings about God’s mercy for sinners. Above the crib, a sign declaring God’s hatred for gay people hangs in the place where, in a different church, there might be a painting of Jesus welcoming the little children or searching for a lost lamb.

westborobaptist4Rehearsal wraps up. The girl’s mother arrives and she excitedly tells her that we both love Ariel.  They are holding hands, her mother listening attentively. It’s a tender scene, one that informs, rather that disrupts, the church’s funeral picketing. They picket, explains one church member, because they love their own children. That love for their own children helps them understand the agony of a parent who is burying a child killed by an AIDS-related illness, an enemy IED, or a school shooter. It is their best qualities–their love for their families and their concern for other church members–that inspire what outsiders see as their most hateful activities: picketing funerals. The church sees such picketing as an act of love–albeit one almost universally seen as hate. “Love thy neighbor,” declares one church-produced video, means you must “rebuke” them when they sin. They would rather have you know this and hate them for it than for them to fail to tell you and thus fail in their duty to love you.

The advantage of ethnographic work on hate groups is that you cannot deny the humanity of groups members as you might be tempted to do if you are working with documents or statistics. The Institute of Hate Studies at Gonzaga University, with which I am affiliated, stresses that hate begins with enmification: constructing an enemy by denying their humanity–then, if you can, their right to exist, not just individually but in any form, and, finally, any trace of their existence. When working with hateful human subjects, you can’t emnify, even if you want to, because it is the humanity of the research participant that allows the research to happen. The work would be easier if the research subjects were less human. Their complexity can be exhausting and sometimes disorienting, requiring careful ethical consideration[1] and scholarly self-reflection on the difficulties.[2]

One challenge arises not from how different hate actors are from “the rest of us” but from how similar we are. They are like us not in our worst ways but in our best. They love their children, their friends, and their country–even if it’s not presently living up to their hopes. They see the world changing quickly in ways that are taking it farther from their ideals. They think changing it is possible through individual and collective action. They work hard and care deeply. Because they have good qualities–ones they may even use in the pursuit of wrong ends–we may be tempted by what Antonius C. G. M. Robben calls the “ethnographic seduction” to tell their stories in ways that affirm them and their causes.[3] Ethnographers of “unloved groups”[4] are not wrong, though, to report on the charity, kindness, hospitality, or generosity of people who also do awful things. Though we are right to be wary of confusing victims and perpetrators,[5] thick descriptions of unloved groups will almost always show joyful, tender, and gentle moments.

Much of our discussion about hateful acts focuses on how those committing them are unlike us, the good, moral, righteous people. We invoke psychology to suggest that they are abnormal and the legal system to label them criminals. We report on them as “outsiders” and “lone wolves.” We invoke “not all men” or “not all white people” or “not all Christians,” making them exceptional when they are, in fact, as Clara S. Lewis notes, “disturbingly conformist.”[6]  In short, we emnify the emnifiers, denying that our silences support misogyny or white supremacy or religiously-inspired violence, rewriting our national history to erase the hate on which the nation is (literally, through Indian removal and African enslavement) built, pretending that our collective romance with guns and violence is irrelevant to “lone wolf” actors, refusing to see hateful actions as an “expression of extended histories of often state-sponsored violence against minority groups,”[7] and ignoring the way that many of us benefit from the hateful acts that others commit. Violent white supremacists see themselves as saving white America, and, to be sure, all white people benefit from terrorism against people of color just as all men benefit from misogyny–even if they also suffer from it.

Our surprise that hate actors are also often generous, kind, and loving speaks to our own need to distinguish ourselves from them, to have an alibi for our “shallow understanding” and “appalling silence,”[8] and even, at times a scapegoat. But surprise is a privilege. Enslaved African Americans knew that slave traders, plantation overseers, and slave patrollers were often “good people”–to some people. KKK members from 1865 and onward have seen themselves as good patriots and defenders of women and children, not as racists and xenophobes-[9]-just as members of anti-Muslim and anti-immigrant groups do today.[10] Those who have seen hatred up close–its targets, those who have left hate groups, scholars of hate studies–know that hate actors see themselves as heroes, not villains. Today, the narrative of white supremacy is less about genetics (how unpalatable!) and more about Crusaders saving civilization non-white, non-Christian forces–the same racist story that “won the West” and the 2016 presidential election.

Even as (or perhaps because?) those with firsthand memories of the Holocaust and pre-Civil Rights America pass away, the hatred inherent in Trumpism has inspired new conversations about the ability of seemingly ordinary people to commit extraordinary violence. In the days after Donald Trump’s executive order prohibiting the legal entrance of many foreign-born travelers and residents into the US but before its thorough rejection by a federal appeals court, low-level government employees followed through on orders with cruelty beyond what the rejected executive order required. A five year old American citizen returning from travel abroad was kept from his mother for more than four hours, despite ample forewarning from his senator that the child would be disembarking; parents of an infant being treated for burns in a US hospital were left stranded in Iraq as their baby headed to the United States; a breastfeeding infant—an American citizen—was kept separated from her mother. We wonder at the TSA agents who separate small children from parents and the ICE agents carting deathly ill undocumented immigrants from the hospital to detention centers, just as we wonder about National Guards opening firing on student protestors, Bull Connor’s police officers, the guards at Japanese internment camps, the white picnickers cutting the knuckles and toes off the lynched black man as souvenirs of their families’ day out, the soldiers opening fire at Wounded Knee, the Pinkertons killing labor union members, the auctioneer facilitating to end of a slave family. We didn’t need the Milgram experiment; history has shown us–and we’ve captured it in photos–that it is frighteningly easy to follow orders that inflict pain on others when you believe authorities command (or even simply permit) you do to so , whether those orders excite already-held prejudices or not. Yet, here we are, making laws to protect drivers who hit protestors and inviting transphobic collaborators to report trans people using the “wrong” bathroom. These are not laws to enforce public safety but efforts to make permissible violence that would otherwise be clearly immoral—a kind of Crypteia for our age.

We don’t need to be shocked at either the idea that hateful people are often also good or at the idea that good people will sometimes (and sometimes often) be hateful, especially in political contexts that reward them for it. Hate is not exceptional but functional, perhaps the most destructive tool in oppressive systems worked hard to maintain inequality, and many of us–even otherwise good people, people who love our children, people who sing in church choirs–will pick it up when we want to maintain our preferred supremacy.

s200_rebecca_barrett-fox

Barrett-Fox is a professor of sociology at Arkansas State University. She is currently researching Act for America, “the nation’s largest nonprofit, non-partisan, grassroots national security organization.” You can follow her blog at anygoodthing.com.

 

 

footnotes: [1]Anna Sheftel and Stacey Zembrzycki, “Who’s Afraid of Oral History? Fifty Years of Debates and Anxiety about Ethics,” The Oral History Review 43, no. 2 (2016): 338-366.

[2] See, for example, Kathleen Blee, “White-Knuckle Research: Emotional Dynamics in Fieldwork with Racist Activists,” Qualitative Sociology 21 no. 4 (1998): 381-399; Journal of Contemporary Ethnography’s 2007 special issue on racist and far right groups, edited by Kathleen M. Blee (vol. 36, no. 2); Pete Simi and Robert Futrell, American Swastika: Inside the White Power Movement’s Hidden Spaces of Hate (Lanham, MD: Rowman and Littlefield, 2015); Fieldwork under Fire: Contemporary Studies of Violence and Survival, edited by Carolyn Nordstrom and Antonius C. G. M. Robben (Berkeley, CA: University of California Press, 1995); or Rebecca Barrett-Fox, “Anger and Compassion on the Picket Line: Ethnography and Emotion in the Study of Westboro Baptist Church,” Journal of Hate Studies 9, no. 11 (2010/2011), 11-32.

[3] Antonius C. G. M. Robben, “Ethnographic Seduction, Transference, and Resistance in Dialogues about Terror and Violence in Argentina,” Ethos 24, no. 1 (1996), 71-106.

[4] Nigel G. Fielding, “Mediating the Message: Affinity and Hostility in Research on Sensitive Topics,” in Researching Sensitive Topics, edited by Claire M. Renzetti and Raymond M. Lee (Newbury Park: Sage, 1993), 146-180.

[5] See, for example, “Similarities among Differences,” Martha K. Huggins and Marie-Louise Glebbeek’s introduction to their co-edited Women Fielding Danger: Negotiating Ethnographic Identities in Field Research (Lanham, MD: Rowman and Littlefield, 2009), 1-30.

[6] Clara S. Lewis Tough on Hate? The Cultural Politics of Hate Crimes (New Brunswick, NJ: Rutgers University Press, 2013): 85.

[7] Ibid., 60.

[8] Martin Luther King, Jr. “Letter from a Birmingham Jail,” Why We Can’t Wait (New York: Signet, 2000), 73 & 74.

[9] Kelly J. Baker, Gospel According to the Klan: The KKK’s Appeal to Protestant America, 1915-1930. 

Are Public Lands for Sale?

by James R. Skillen, UPK author of Federal Ecosystem Management; Its Rise, Fall, and Afterlife (2015)

The 115th Congress began with housecleaning. After battling the Obama administration for years, the Republican majority anticipated a fast-moving legislative agenda supported by President Trump. They started by brushing aside rules they felt hindered legislative work and by wielding the Congressional Review Act against President Obama’s late regulations. Voters looked on with a sense of relief or consternation.

us_federal_land_agencies_svgPublic lands are certainly part of the Republican agenda, both as a target for deregulation and as a resource for increasing oil, gas, and coal development. But could there be something even more significant in the works? Could Republicans be planning a campaign to sell or give away millions of acres of federally owned land? One Guardian article warned on January 19 that “Republican lawmakers have quietly laid the foundation to give away Americans’ birthright.” Specifically, they revised House rules so that public land sales and transfers will be treated as “cost free” actions that do not require budgetary review or offsets. This means one less hurdle for wholesale public land disposal. Elevating these fears, Congressman Jason Chaffetz (R-UT) introduced H.R. 621 on January 24 to sell 3.3 million acres of federal land to the states.

Has Chaffetz opened the floodgate of public land sales? If so, it would hardly constitute a political 9780700621279surprise. Western Republicans have criticized federal land ownership and management for decades, most famously in the Sagebrush Rebellion of the late 1970s and early 1980s. When Republicans took control of Congress is 1995, they proposed selling public lands to balance the budget. A number of state governments in the West repeatedly challenged the constitutionality of federal land ownership during the Obama administration. The occupation of Malheur National Wildlife Refuge in 2016 was only an extreme example of private opposition to federal land ownership. Republicans even made public land disposal part of the platform for the Republican National Convention, writing “Congress shall immediately pass universal legislation providing for a timely and orderly mechanism requiring the federal government to convey certain federally controlled public lands to states.” Republicans have long called for public land sales, and their control of both Congress and the White House has given them an unparalleled opportunity to act.

While the possibility of large-scale public land sales is real, history suggests that it remains unlikely. While Republicans have shown unified frustration with federal land management, they do not have a unified alternative. Some, particularly Tea Party Republicans, genuinely want to see large areas of public lands transferred to the Western states, which would manage them for a higher rate of economic return. Others, including many currently calling for public land sales, are not actually interested in land ownership; they are interested in land use. Members of Congress will likely find that steps to shift power away from environmental organizations and toward resource development interests will please both groups of Republicans, while proposals to sell large areas of federal lands will divide their constituencies and undermine their support.

Mr. Chaffetz found this when he proposed selling 3.3 million acres of federal land and faced immediate, bipartisan opposition. And he should not have been surprised. Last summer President Trump’s nominee to head the Interior Department, Ryan Zinke, resigned from the committee drafting the Republican National Convention platform over its position on public land sales, and Donald Trump, Jr. has been outspoken in support of public lands remaining public. Zinke and Trump, Jr. represent millions of Republican outdoorsmen and outdoorswomen who benefit from and support federal land ownership. And their opposition to H.R. 621 is particularly striking when one considers that it focused primarily on scattered tracts, rather than large, contiguous units of public lands, and that the Clinton administration initially selected these lands. Indeed, opposition reflects the remarkable level of distrust that Democrats and Republicans alike have in Congress to serve the national interest through land sales and exchanges.

So it seems unlikely that Congress will liquidate federal land holdings. It is far more likely that the Republican majority will make significant changes in public land planning and management to reduce environmental regulation and increase resource production, striking down administrative processes and requirements that stand in their way. For example, Republicans in the House voted to repeal the Bureau of Land Management’s new planning rules, Planning 2.0, which were finalized at the end of the Obama administration. The new rules were driven, in part, by frustration with the cost and length of land use planning and the additional financial and temporal costs of subsequent litigation. To address these problems, the rules require greater public participation, including earlier and more frequent participation; they emphasize landscape-scale planning issues that transcend public land boundaries; they require BLM to take scientific measurements of resource baselines that will be used to assess management actions in the future; etc. These rules, the BLM hoped, would produce more robust plans that stand a better chance of surviving legal challenge and give land managers better footing when they make subsequent decisions.

As Republican critics understand correctly, though, Planning 2.0 will impact the current balance of power in public land planning. Though it is difficult to predict the exact impacts of Planning 2.0, two things seem clear. First, it would likely make participation more accurately reflective of diverse interests in the public lands, giving environmentalists and resource developers, local citizens and national organizations, a place at the table. Second, it would shift the focus of planning from land uses to land and resource conditions, and this is a shift that environmentalists have sought for decades. Because of these and other potential impacts, the Western Governors Association, the oil and gas industry, and the livestock industry all opposed Planning 2.0, arguing that it would unfairly privilege environmental protection and the voice of national organizations over economic development and the voice of local communities. As congresswoman Liz Cheney (R-WY) put it, Planning 2.0 “represents a federal power grab that ignores expert knowledge and undermines the ability of state and local governments to effectively manage resources and land use inside their own districts.”

If history is at all predictive, the most important battles waged by the Republican majority in Congress and the White House will not be over selling public land; they will be battles over public land planning and management. And it is here that they are most likely to build their legacy of reduced regulation and increased resource development.

pensiveskillenJames R. Skillen is assistant professor of environmental studies at Calvin College in Grand Rapids, Michigan.