Category Archives: Civil Society

Travel Ban Aftermath: A Challenge to the Foreign Policy Monopoly?

In case you lived under a rock for the few weeks, the media was dominated by President Trump’s executive order banning citizens from 7 predominantly Muslim countries (Libya, Iran, Iraq, Somalia, Sudan, Syria, and Yemen) from entering into the United States regardless of status. This was followed by an overruling by a Federal district judge in Seattle and the confirmation by the 9th Circuit Court of Appeals in San Francisco. While opponents of the travel ban celebrated the courts’ decision and move on to other battle lines against the administration, an interesting aberration in government precedent has creaked open that can disrupt the Executive Branch’s long enjoyment of dominating foreign and national security policy.

American foreign policy and national security against foreign threats falls, by and large, under the purview of the executive branch. While Congress certainly has influence on major decision making (i.e. declaring war, finalizing trade agreements, and/or approving funding for major executive decision making), they for the most part act as an oversight committee on foreign policy and leave the direction and day-to-day decision making of American foreign policy and national security to the president. However, even then, that oversight is, by and large, not controlled by major mechanisms of the U.S. Constitution.

The precedent for this lies in a 1936 Supreme Court decision United States v. Curtis-Wright Export Corp. (1936), which largely stands unchallenged since. In a 7-1 ruling, the court explicitly defined which branch of government would by and large dictate foreign policy where it was once vague in the Constitution. Howard Zinn, in his book Disobedience and Democracy: Nine Fallacies on Law and Order (p. 62-63), expands on the decision and analyzes it as doing two major things:

It declares that in foreign policy the government is not as limited by the Constitution as in domestic policy; it assigns enormous power to the President in the making of foreign policy…

Zinn then quotes the court’s majority opinion:

‘…The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs…’

And Zinn concludes:

The court spoke of ‘the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations–a power which does not require as a basis for its exercise an act of Congress.’ And when it adds that this power ‘of course, like every other governmental power, must be exercised in subordination to the application provisions of the Constitution[,]’ we must remember that the Court had just declared that in foreign affairs the government was not subject to the restrictions of the Constitution as in domestic affairs!

Since then, that decision has become a defining moment in legal precedent for allowing egregious violations of constitutional rights such as the internment of Japanese-Americans and the seizure of private property and businesses during “times of crisis” and/or war.  Therefore, the drumming up of fear and imminent threat has become the modus operendi of any and all president’s that have desired to push their policy and agenda with minimum legal opposition. In other words, it is like a first step in a Guide to Legally Establish Draconian/Dictatorial Laws in your Democracy flowchart.

As such, it should come to no surprise that the campaign rhetoric and policies coming out of the Trump administration fits the tried and true pattern. They were audacious enough to make such a broad and sweeping executive order. In fact, I would even speculate that they had their bases covered on being allowed to do so legally.

However, this time, with both Washington State and Minnesota suing the federal government on the grounds of economic damage and injury caused by the order in conjunction with an constitutionality argument, Judge Robart broke away from precedent. Judge Robart asked for evidence to support the executive order, which the Federal government could not supply. Instead, the Federal government challenged the authority of the Judicial Branch of the United States in reviewing decisions made by the Executive branch. Judge Robart quickly rebuffed such an argument.

The judge then concluded:

The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches.That’s the work of the legislative and executive branches, while it’s the work of the judiciary to ensure laws and executive orders comport with the Constitution. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government.

While the legal battle over the travel ban specifically is not close to over and will continue to work its way through the legal process up to the Supreme Court, there is a different subtext that can possibly play out where a possible avenue for challenging the Executive Branch’s near monopoly on determining foreign policy and national security can be formed. For the first time in a while, a case is being presented to the court that individual states are able to challenge a near century long precedent in American governance and legal ruling that gives the President sole power to dictate foreign policy. (The irony being that such a challenge started with the Republicans challenging Obama’s executive authority in a previous court case.)
It would be hyperbolic to claim that even the most favorable decision would reign in the President’s ability to dictate foreign policy, but it would creak open the door that was once shackled shut. That small creak could grow wider if individual states leverage the argument of economic damage and injury with evidence of US foreign policy causing direct economic damage that is amplified by globalization. It might be a bit of a long shot and likely would require juxtaposing an unconstitutionality argument, but the fact that a U.S. state is able to successfully sue the Executive Branch on a foreign policy and security decision (though it’s blurred as being also a domestic issue since it deals with immigration) might be able to pave the way of reigning in the monopoly on foreign affairs.
Another interesting detail is the close relationships that businesses and universities from these states (that make up the economic back bone of the state) worked closely with their local government to establish a strong legal case. The companies that overwhelmingly opposed the ban were from industrial sectors that rely on highly skilled and educated individuals, which have an over-represented Asian workforce that are directly affected by the ban (e.g. tech). While issues of diversity in the workforce (even in high-tech) is a problem and should be addressed, it should be noted that this may be an emerging area of influence in dictating policy, especially in booming sectors like tech and engineering that are starting to become more affluent in politics.
These increasing diversity factors (using a high-skill labor lens only, for now) can further solidify that bridge of foreign decision making to domestic repercussion streamline. As such, this may further embolden individual municipalities and states to keep challenging the President’s foreign policy that disrupts constitutional guarantees and could continue to chip away at his ability to roll out his policy.
If he continues to be disruptive, he could not only lose his own ability to establish his foreign policy agenda without aberration, but also for other presidents to come.
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Checking Outrage: A Chess Strategy to Change Iran

Last week, a Georgian-American chess world champion, Nazi Paikidze-Barnes, went on social media to express her disapproval and subsequent boycott of the 2017 Chess World Championship that is to take place in Iran on the grounds of Iran’s religious law that would require her to wear a hijab. As she posted on her Instagram:

I think it’s unacceptable to host a Women’s World Championship in a place where women do not have basic fundamental rights and are treated as second-class citizens.

It is difficult not to have a knee-jerk reaction and jump on the Paikidze-Barnes bandwagon, and fully support her boycott. After all, it is true, women are treated as second-class citizens in Iran from the policing of their dress by the state, their ban to attend male sporting events in Iran, to inheritance and custody laws just to name a few. However, in light of the position, many Iranian women have taken to news outlets and blogs to express their concern and disapproval of Nazi’s stance. They argue that boycotting such a major competition actually hurts progress for Iranian women. As one Iranian international master put it:

This campaign against the tournament is against Iranian women and it doesn’t help at all…It’s the first time we are hosting a world championship [for women], not only in chess but [in any] sport, and I think it’s very important for Iranian women to have this chance to hold such major events.

In a New York Times op-ed, Azadeh Moaveni asked Jila Baniyaghoob, a journalist and activist in Iran who had spent some time in prison, on the matter:

[S]he said it was crucial to take the long view…While she herself opposes mandatory hijab, she points to the athletic wear Iranian female athletes wore in the 2016 Olympic Games, outfits that 30 years ago would have been inconceivable. “Women’s progress goes step by step here, and the route forward isn’t a boycott,” she said. “When a woman shines in a sports competition it boosts women’s rights in all areas, it reverberates everywhere, beyond those games.”

In Ms. Baniyaghoob’s words is where we find the strategic nougat of women’s rights and progress in Iran. The strategy of showcasing talent and championing the abilities of women on the international stage not only benefits women in Iran, but benefits the entire country as a whole.

In chess, it is important to not become distracted by nonsense movements of an opponent or easy attacks that can put your overall strategy out of position. Fighting Iran’s mandatory hijab dress code for women seems like a valiant, immediate crusade (indeed, it is). It is visual. It directly attacks a nonsense law that imposes the state’s will on women (although, nobody in the West seems to care too much about the mandatory dress code for men). And it “feels” like it is the right course of action to make a backward system backpedal.

Check.

However, the reality is that overt protests from Western media and public figures does little to progress women’s rights in Iran. In fact, it is often used as a pretense to crackdown on Iranian women’s rights activists that fight day-in and day-out in schools, courts, mosques, stadiums, streets, gyms, and even across the chess board. Therefore, when Western fanfare over “Iranian oppression of women” rears its head into mainstream media, it often does more harm than good. This is why Iranian women urge for a different strategy: worry less about the attire for now, and focus more on empowering Iranian women by participating with them in sport on the world stage.

Iranian women are taking the approach of showcasing their talent and abilities – both domestically and internationally; no matter how small the event – as the means to gain support and empower their voices when fighting against laws that oppress them. By entering the halls of Iranian sport  champions and heroes, Iranian women gain greater leverage through their newfound status of Iranian heroes to fight oppression. Therefore, when that ability to showcase their ability is marred or covered by tabloid like media coverage, it takes away the very achievements that Iranian women are fighting for every day.

It is important to remain resolute in the long approach of Iranian progress. The long approach, in this case, meaning Iranian women showcasing their ability on the world’s stage and being international contenders in every world competition that is available to them. With each success, the country increasingly rallies behind Iranian women to succeed and, through this increased support, a culture of championing Iranian women is erected and widely accepted.  This also has a trickling affect into other areas of Iranian society whether in employment, politics, or other areas in which Iranian women are currently shut out. Iranian women understand this nuance and urge their Western counterparts to come halfway by keeping this long term strategy in mind. When enough opportunities are won and they outnumber the men in key positions (which they will), the veil will come off; at which point it is no longer a symbol of oppression, but just a simple headscarf. It’s only a matter of time.

Checkmate.

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The Leaderless Need Leaders, and Leaders Need the Leaderless

What started as the “Arab Spring” has transitioned and transformed – like seasons– to the “American Autumn”, and now perhaps something else entirely. Countless pundits, experts, and academics have opined on what it is, whether it is good or bad, successful or unsuccessful, or something unique or a continuation of the past. But every article, blog, TV plug, or radio interview seem unable to explain this global protest phenomenon with certainty and in its entirety. It may be because that participants in these movements are experimenting with new ways to organize, though they may not be aware of it themselves. But for these movements to be successful, they will need a little help from their friends (pun intended)—practitioners in the field of conflict.

What mainstream media did cover about these new social movements is the seemingly unorganized demonstration over a very palpable frustration. Such movements in the past, though having participants from a large number of “unaffiliated”, had activists that were part of formally structured and hierarchical organizations to provide a voice for the voiceless and organize their communities to become active, in which they would articulate demands through various communication mediums.

Social media and mobile telephony – unlike communication tools in the past like TV/Radio, cassette tapes, and, yes, the internet (we are that old) – in new social movements has for the most part freed the rigid categories of producer and consumer of media and information.  The past required formally structured organizations and/or groups with clear roles and strategies to get the information out for consumption to the public, but today anybody can be a producer and consumer of information. This loosens (though does not dismiss) the need for formal organizations to provide a voice for the voiceless.

The leaderless Occupy movements that are taking place around the world is this theory manifested. Individual active participants in the movement become the producer, interpreter, filter, and consumer of information, and exchange ideas – in an antiquated Athenian democracy sort of way – to come up with the demands they want to protest for. However, articulating and deciding how a proper economic system should function is a lot harder than demanding the ouster of a leader like their Arab counterparts.

Demanding a leader to step down is not nuanced, nor is it subject to statistics, figures, or theory. It is clear and emotional enough to bring many groups together. In fact, demanding a leader to step down requires less (not none) organizational or community development to drive it in comparison to more abstract concepts such as economic policy or system design. However, even in cases were the demands were clear, like the case in Tunisia and Egypt, the less formally organized students – in comparison to their elite or Islamist counterparts –lost out to the quick turnaround in elections that followed.

What this means for the conflict community is that now, more than ever, community and organizational development through techniques and/or skills in facilitation, dialogue, and problem solving in conflict practice are needed. The advantage of formal organizations is that the leaders formulate and articulate demands, but in leaderless movements that is just moot. With proper training in dialogue and conflict management, participants of leaderless movements can remain “leaderless”, while making adequate progress in formulating and articulating demands.

I do not suggest that remaining leaderless is better than being formally organized or vice versa, but perhaps they reinforce each other in a truly positive direction. In other words, the unaffiliated – usually the common denizen – have been unable to contribute, and has caused societies to simply take down one leader for a formally organized other. Therefore, the leaderless need leaders, and leaders need the leaderless.

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Digital Governance

On a june weekend I took part in a class workshop lead by TechChange, an organization that is dedicated to utilizing information and communication technology for positive social change. The workshop familiarized students, including myself, with various technological tools that are currently being used to support various weakened institutions around the world, such as crisis response & management, health response, education, and governance to name a few.

Two technological tools that we got to acquire hands on experience was FrontlineSMS and CrowdMap, which helped facilitate communication and information during election monitoring and medical emergency simulations. The tools utilize SMS (text messaging) – the predominant source of communication in even the most remote and/or underdeveloped regions of the world – and leveraging them to aid in some kind of monitoring or crisis management capacity.

Aside from monitoring tools, new innovative uses of ICT technology are helping to leverage and/or support governance in regions where it has been primarily absent. Tools like FrontlineSMS:Legal and the Internet Bar Organization’s Internet Silk Road Initiative help extend the reach of formal state legal institutions to the remotest of areas. This is particularly useful in places like the remote mountains of Afghanistan or Pakistan’s northwest frontier where formal state penetration is limited. When disputes arise, citizens residing in these areas can call or text their dispute to a legal authority connected to this “mlegal” technology, which can help facilitate various legal needs such as discovery, facilitation, or representation just to name a few. Furthermore, these projects can also work with informal justice systems that may have greater legitimacy in a region. In the case of Afghanistan, working with Jirgas can provide greater legitimacy, collaboration, and enforcement on legal decisions made by formal and informal judges and juries.

However, questions do arise on how one monitors and maintains the enforcement of decisions made on legal disputes. In remote regions, monitoring is very difficult and having adequate witnesses may pose a problem in remote locations. In the case of Afghanistan, if state institutions are so remote, enforcement will require greater cooperation from jirgas – a community of tribal elders that specifically addresses disputes in the community. This can pose a problem as jirgas are not monitored and may become privy to dubious dealings. In other words, there is no regulatory system or body to help maintain the jirgas honesty.

Also, the technologies that were supposed to aid and support governance seemed limited to institutions. While institutions are important, they cannot function correctly without having a strong civil society. Aisha Ghaus-Pasha presents an excellent case on the role of civil society and how it promotes “good governance like transparency, effectiveness, openness,
responsiveness, and accountability.” (page 3) Therefore, it would be very interesting to see how technology can aid in the strengthening of civil society and create better relations and cooperation between civil society and formal state institutions.

The overall experience of being part of the TechChange workshop was quite eye-opening. It brought me face-to-face to many technologies that are simply daring to create change. Obviously, technology is not the answer to social woes and the organization makes no case that it does. However, they do argue that technology can certainly help and that it is simply daring to create positive social change as best it can through feedback and trial and error.

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