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Tagged: War on Terror

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Bright Ideas: Mark Weiner on his new book Rule of the Clan

Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.

His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:

A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.

The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”

I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.

Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?

Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.

So why clans now?

Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.

Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.

Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.

The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.

I think you are saying there is something about clans that helps us organize and understand our world. What is it?

It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.

By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.

Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?

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Stanford Law Review Online: Pulling the Plug on the Virtual Jury

Stanford Law Review

The Stanford Law Review Online has just published a Note by Nicolas L. Martinez entitled Pulling the Plug on the Virtual Jury. Martinez takes issue with Judge William Young’s proposal that Khalid Sheikh Mohammed be tried via videoconference from Guantanamo Bay by a jury sitting in New York:

Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military commission. But a provocative proposal put forth recently by Judge William G. Young of the District of Massachusetts has revitalized one of the most contentious legal debates of the post-9/11 era. In a nutshell, Judge Young proposes that an Article III court try KSM at Guantanamo, but with one major twist: the jury would remain in New York City.

He concludes:

Perhaps unwilling to refight the battles of two years ago, Congress has shown no inclination to retreat from its apparent view that KSM may only be tried by a military commission at Guantanamo. As a result, following through on Judge Young’s plan, which could be viewed as an attempt to circumvent the will of Congress, might lead some legislators to harden their stance on civilian trials for alleged terrorists and propose even more disagreeable legislation to that end. This is not to say that creative solutions aimed at fortifying the rule of law in a post-9/11 world should be held hostage to the proclivities of intransigent voting blocs in Congress. Quite the opposite, in fact. But the likely political ramifications of Judge Young’s proposal cannot be ignored, especially in an election year when few members of Congress may be willing to spend their political capital defending the need to hold KSM’s trial in federal court.

Even though Judge Young’s provocative suggestion should not be adopted in its current form, he has moved the conversation in the right direction. Continuing to think imaginatively about ways to preserve our rule of law tradition from external threats is immensely important, particularly in the context of national security crises. For it is when the rule of law can be so easily discarded that it must be most doggedly defended.

Read the full article, Pulling the Plug on the Virtual Jury at the Stanford Law Review Online.

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BRIGHT IDEAS: Victor Hansen and Lawrence Friedman on The Case for Congress: Separation of Powers and the War on Terror

Case_for_Congress2Today’s Brights Ideas piece comes from Professors Victor Hansen and Lawrence Friedman who both teach atNew England Law, Boston. The book, The Case for Congress: Separation of Powers and the War on Terror (Ashgate), shows how Congress still has vital role to play in the way our country conducts war. In addition, for all of you wondering about the gestation of a book, let alone one where two authors must work together, the authors share the story of the beginnings of the book and some insights about collaboration and the legal academy.

VICTOR HANSEN and LAWRENCE FRIEDMAN

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The Case for Congress: Separation of Powers and the War on Terror

THE BOOK

Despite the focus on Presidential power and its expansion since September 11, one branch of government has not received enough attention: Congress. Though the office of the President has over time accrued more power in the area of national security than the textual delegation in Article II would suggest, Congress still has an important role to play. At this writing, President Obama continues to pursue some of the same strategies adopted by his predecessor, and so it seems our representatives in Congress can never be reminded enough that they have the constitutional authority both to authorize and supervise many aspects of the defense of the nation against the threat posed by terrorism. This perspective drives our new book, The Case for Congress: Separation of Powers and the War on Terror.

Now, several years and a new Presidential administration after we began discussing the role of Congress in national security matters, we remain convinced that Congressional involvement should be encouraged.

The benefits of such Congressional action are many. Not least is the value that inheres in Congress, through enabling legislation and the apparatus of the political process, serving as a check on a President’s tyrannical impulses. In the end, as the framers imagined, Congressional involvement brings to the table a measure of accountability that exclusively executive decision making often lacks.

THE PROCESS: FROM DISCUSSIONS TO ARTICLES TO COLLABORATION

We started writing The Case for Congress: Separation of Powers and the War on Terror without even realizing it. As we note in the book’s preface, the project began as a discussion over lunch in late 2005 about various aspects of the war in Iraq and the war on terror. Each of us knew Americans on the ground in Iraq, and neither of us was impressed with the coverage of the war on terror in the popular media. In talking about the legality of the Bush administration’s moves in each of these conflicts, moreover, we thought about how terribly partisan the analysis of policy decisions had become, and we thought we could make a contribution to the debate by focusing, in a neutral way, on an institutional actor that seemed to be neglected: the United States Congress.

These discussions led to a series of essays published in the on-line journal Jurist, as well as to a larger project, a law review article about the Bush administration’s proposal to use secret evidence in the trials of terrorism detainees. That article was published in a symposium issue of the Roger Williams University Law Review on military justice in 2007.

Somewhere along the way, our work attracted the attention of an editor at the Vermont office of Ashgate Publishing, based in England. He contacted each of us separately to ask whether we had any interest in pulling together into a book some of the ideas we’d been toying with for a couple of years. This was in the spring of 2008. At the time, neither of us had written a book, or had much idea what it would take to turn one law review article and a handful of short essays into a longer work focusing on the issue to which we kept returning: the importance of Congressional involvement in foreign affairs and national security decisionmaking.

But once we decided we had more to say, we also discovered the writing was easy. In fact, working on the book became something of an attractive nuisance: each of us had other scholarly projects in process, as well as a full teaching load at New England School of Law, yet working on the book proved to be a welcome diversion from those responsibilities.

We learned something important in the process: It helps to collaborate. Collaboration is sometimes looked down upon in the legal academy, and for no good reason that we can discern. By collaborating on this project, we were able to get a manuscript to the publisher within months, rather than years, and see the book published in time for it (hopefully) to be relevant.