The Head Heeb : Knocking Down 4000 Years of Icons

Musings about politics, religion, law, art and marriage - what else is there?

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Saturday, August 02, 2003
Sidebar notes

I've added Silipups, a weblog from East Jerusalem, to the blogroll. The author, Anees, seems to be either an architect or an architectural student, and the signs point to his being gay. It isn't clear whether he is an Israeli citizen; at one point, he mentions that his sister has an East Jerusalem ID, so my guess is that he isn't. In any event, he certainly doesn't identify himself as an Israeli, so I've put him in the "Palestinian Blogs" category.

He's fond of Counterpunch and Znet citations, so I naturally have many points of disagreement with him. For instance, one thing that caught my attention, among many, is his use of the catchphrase "historic Palestine." Given that the Mandate of Palestine existed for exactly thirty years, I would be as justified in referring to the area as "historic Judea." Use of a phrase like that to describe a colonial entity with no pre- twentieth-century historicity is, in essence, a claim that its history belongs only to the Palestinians and a denial of Jewish heritage in the land.

I've said before that Jews and Israelis need to recognize that the Israeli war of independence was also the Nakba. But Palestinians also have some distance to travel in recognizing that Jews are not foreign transplants in the Holy Land and that places like the Temple Mount and Rachel's Tomb are part of a Jewish heritage thousands of years old. Peace, fairness and the Palestinians' right to self-determination require that some of the land be given up, but it is not a country to which Jews are alien.

In any event, though, Anees is intelligent and articulate and has some interesting things to say. In between the political stuff, there's also architectural and artistic criticism and introspective essays about growing up. And then there's the firsthand account of his aunt's backyard being partially demolished to make room for a bypass road. People who are pro-Israeli should read stories like that, just as people on the Palestinian side should read about things like this and this. Maximalism has its costs.

A delegate's view

Robert Wistrich, who participated in the recent conference on anti-Semitism sponsored by the Organization for Security and Cooperation in Europe, provides a firsthand account and discusses possible areas of concern. I think he conflates anti-Zionism with anti-Semitism more than he should, but he makes a good point in saying that "[w]hen it comes to the Jewish State, there is little recognition of the difference between criticism and defamation."

Another family portrait

Avner Avrahami profiles the the Moshes of Kibbutz Ein Gedi.

You know what time it is

This week's Chronicle goes back in the Al-Ahram files for a firsthand look at Egyptian peasant life during the Depression:

Another reporter went to the livestock market where he learned that many of the animals on display had been confiscated in debt foreclosures. He relates, "People were just standing around and watching. I turned to the person next to me and asked why nobody was buying these animals which were being sold off for next to nothing. 'Certainly, you need animals like these in your farm,' I observed. The man turned to me, his eyes filled with tears, and said, 'Sir, those are my animals, which I'm being forced to sell off in order to pay my taxes. And as you can see nobody is even making an offer.'"

In addition to these accounts, there's an interesting discussion of the factors that accentuated rural poverty - particularly population growth and partitioning of landholdings - and the government's abortive attempts to establish agricultural cooperatives. There's a lesson for Zimbabwe in there somewhere.

Friday, August 01, 2003
Anambra report

The Nigerian Senate commission empaneled to investigate the Anambra State coup has reported back with a recommendation for a full judicial inquiry. The commission censured several prominent political figures and police officials, including two members of the national assembly, for their roles in the coup. Left unanswered, however, is the extent - if any - to which the president and the national PDP apparatus knew of the coup beforehand. The party's pursuit of a political solution to the coup has raised suspicions among many Nigerian commentators that it has something to hide, and pressure is growing for a judicial inquiry to confirm these fears or lay them to rest. Now that a Senate committee with a majority of its members from the ruling party has joined the call, it will be difficult to resist.

From Keren to Cairo

Gamal Nkrumah profiles Abdullah Said, an Eritrean musician living in Cairo. The article casts an interesting sidelight on the Eritrean community of Egypt, most of whom arrived as refugees during Eritrea's generation-long war of independence.

Thursday, July 31, 2003
One that won't be missed

Foday Sankoh, the former leader of Sierra Leone's Revolutionary United Front and the perpetrator of some of the worst atrocities ever committed in Africa, died today in prison while awaiting trial for war crimes.

Peace hotline

Via Israel21c: Hello Shalom, Hello Salaam is a telephone system that allows ordinary Israelis and Palestinians to meet and talk to each other. The idea for the system began when Israeli Natalia Wieseltier dialed a wrong number and ended up having a long conversation with a Palestinian living in the occupied territories. Since the hotline was established, more than 200,000 others have done the same thing:

The project officially premiered last October, when "Hello Peace, Hello Shalom, Hello Salaam" was inaugurated as an utterly original attempt to facilitate dialogue between ordinary Israelis and Palestinians. The stated purpose of the project is to encourage large numbers of Israelis and Palestinians to begin conversations about peace and reconciliation in order to increase pressure on their leaders to follow suit, and to demonstrate to their leaders and the world that there is a "hunger for dialogue" on both sides.


The project has proved itself. In eight months, more than 210,000 calls have been made and conversations held. And if its organizers hopes have been realized, that means that thousands of Israelis became aware of what Palestinians are going through and thousands of Palestinians shared the Israeli experience.


The process is simple. Those who call the hotline first hear a voice message: "Hello, you have reached Hello, Shalom, Hello Salaam. If you wish to talk to an Israeli about reconciliation, tolerance and peace, dial 1; if you wish to talk to a Palestinian about reconciliation, tolerance and peace, dial 2."

If the caller wishes to begin talking to someone on the spot, the computer automatically connects them to someone on "the other side" who has expressed a willingness to talk. They may speak for up to 30 minutes, free of charge.

Also in Israel21c today is the news that Israeli scientists have joined those from 12 other countries in coordinating stem-cell research.

A bad law

The Knesset today approved a controversial bill denying citizenship or residency to Palestinians who marry Israelis. Residents of the West Bank and Gaza who married Israeli citizens - usually Israeli Arabs - could previously apply for temporary residency, and ultimately naturalization, under a "family unification" program.

The new law was enacted in a watered-down form. The original draft bill precluded Palestinians from applying for family unification unless they "identif[ied] with Israel and its goals and have acted to defend Israeli security," but after objections were raised, it was amended to allow the Interior Minister to "grant citizenship or a six-month residency permit in special cases." Even in this form, however, it's a bad law.

The ostensible purpose of the law is to prevent terrorism, and the government has cited six instances in which Palestinians married to Israeli Arabs have committed terrorist acts. These six cases, however, are exceptions to the more than 16,000 Palestinians who have been granted residency under the family unification program. The goal of preventing terrorism could also be accomplished by means more narrowly tailored than a blanket ban on family unification - for instance, by requiring applicants for residency to submit to background checks. Indeed, a Ha'aretz editorial, with which I entirely agree, explains that security checks are already part of the unification process:

On the assumption that the bill is indeed for security purposes, as the government claims, the bill appears to be both an unnecessarily vehement and unbalanced reaction to the security situation. In any case the existing law does not grant automatic citizenship in case of a marriage by an Israeli citizen to a non-Israeli. The naturalization process or the process of granting permanent residency to a foreign spouse is gradual and complex, and gives the interior minister broad leeway, control and supervision over granting the citizenship. The existing law also enables dealing with security problems, if they indeed exist. There is no essential need that justifies such a problematic rule being written into Israeli law and becoming part of it.

It could, in fact, be argued that the law will undermine Israeli security by forcing Arab families underground. Instead of being registered and accounted for, Palestinians who marry Israeli Arabs will live in the interstices of Israeli society, making it much harder for the government to keep track of them. Palestinians who want to infiltrate Israel illegally are already able to do so; according to some estimates, there are 250,000 Palestinians from the West Bank and Gaza currently residing illegally in Israel. Those Palestinians who are sufficiently motivated to go through the Israeli residency and naturalization process are the least likely to engage in terrorism, and forcing them underground will certainly not make them any less so.

If there is any consolation, it is that this law will probably be struck down quickly by the Israeli Supreme Court. Indeed, the law was at least in part a response to a pending court challenge by the civil rights organization Adalah (full petition here) to a year-old freeze on family unification applications. Now that the informal freeze has been enacted into law, the petitioners will have to start over with a challenge to the new legislation.

Given the inclinations of the Barak Court, such a challenge is likely to succeed. As Adalah attorney Orna Kohn testified before the Knesset earlier this month, the bill is contrary to the 1999 Supreme Court decision in Stamka v. Minister of the Interior:

This bill is being presented in the wake of and to bypass the Supreme Court's 1999 decision in Stamka. In that case, the Supreme Court ruled that anyone who marries an Israeli citizen is entitled to equal treatment in the processing of his/her application for citizenship in Israel, provided that there is no criminal or security risk proven against the individual.

The Stamka decision, which challenged a Cabinet policy, rested in part on the fact that the policy was not authorized by the Citizenship Law, and the Sharon administration apparently hopes that a policy with explicit legal sanction will pass judicial scrutiny. However, the ruling in Stamka was also predicated on Article 3 of the Convention on the Nationality of Married Women, to which Israel is a party, the Basic Law for Human Dignity and Liberty, the principle of proportionality and the fundamental right to family life:

The State of Israel recognizes the right of the citizen to choose a spouse according to his desire and to establish a family in Israel with that person. Israel is committed to protecting the family unit… Israel recognized and recognizes its duty to protect the family unit also by granting permits for family unification. In doing so, Israel joined the enlightened states, those states that recognize - subject to restrictions regarding state security, public peace, and public welfare - the right of family members to live all together in the territory they choose.

In light of this, it is likely that the new law will simply give the Supreme Court a more specific target, and that the family unification program will ultimately be restored. Even so, this will reinforce the perception among many Israeli Arabs that they are, in the words of journalist Suhil Kiwan, "supreme status citizens" - in other words, citizens who must rely on the courts to defend their rights against the political branches of their own government. The legislation passed today will probably not last long, but it should never have been enacted in the first place.

UPDATE: Diane, Andrew Sullivan, Mark Shea, Narwen, NeoFlux, Micah Holmquist, and Lisa Rein comment. Some of these people are more reliable supporters of the Israeli government than I am, and they don't like this either.

At this point, slightly more than a day after my initial post, I'm still simmering about this law. It hits me on a more personal level than most other things that go on in the Middle East - I'm married, and I know what I'd do if someone told me I couldn't live with Naomi. Every one of the thousands of families affected by this law share the same bond Naomi and I do, and many also have children. When I think of what the Knesset did yesterday, I see Naomi being taken away and sent, alone, to another country.

Mark Shea puts it in terms somewhat more theological than I would use, but he has the right idea:

The relationship of husband and wife and the bond of the familial unit is of fundamentally greater importance than that of the state. That's from Genesis. Caesar exists to facilitate the family, not the family at the whim of Caesar.

I say again: breaking up thousands of families is not a proportionate response to a few acts of terrorism. Israel would be justified in freezing the family unification program for a few months, analyzing the cases in which Palestinians committed terror attacks after obtaining residency and figuring out how to improve its security checks. Consigning innocent families to permanent life underground, however, is not justified and never will be.

UPDATE 2: Bound in a Nutshell, Kris Lofgren, Jimm, Jake, Anees (in East Jerusalem), Polemicist , The Outside World (second entry of July 31), Douglas Rushkoff (who gets his facts wrong as usual), and Thinking Aloud comment. Once again, these aren't just the usual suspects (although those suspects, of course, are having a field day). Several of them identify themselves, like I do, as supporters of Israel. I think it's clear that the government has gone too far.

In any event, several Jewish legislators have announced that they will join the court challenge to the marriage law. There are many Israelis on the right side of this fight - a fact that will probably be lost on those who are using this incident as an excuse for gratuitous Israel-bashing, but one that is important to acknowledge. The Knesset has passed a bad law that is not representative of the citizens of Israel, and Israel is a country where the rule of law is strong enough to correct this error.

UPDATE 3: Anti-Colonial Agitator (sixth entry of July 31), Gabriel, Damian Penny, Ibyx, Protocols, Jeff Jarvis and Setting the World to Rights comment.

Another heartwarming story

Al-Muhajabah has called my attention to this story about a Palestinian child whose organ donations helped save the lives of three Israeli children. The Palestinian child, who was not named, was treated at an Israeli hospital after falling from the roof of his West Bank house, but died of his injuries.

Among other encouraging aspects of this story is the reaction of Islamic authorities. Before agreeing to donate the child's organs, "the family asked the Mufti of Jerusalem for permission... who in turn asked the Mufti of Saudi Arabia, who replied in a fax to the family that it was an important good deed." There's at least one prominent Saudi holy man, then, who believes that it is an "important good deed" to save the lives of Israeli children.

UPDATE: Solomonia responds with an entirely appropriate comment:

Of course, "good" is the overall picture here. The sad thing is that a child had to die to save others, so I guess we could say it's the "best of a bad situation."

I hope the family will have at least some consolation from the fact that their tragedy has prevented other families from suffering similar loss.

Wednesday, July 30, 2003
The constitutionality of the F-word

Via Ampersand, the winner of the 2003 Legal Document of the Year Award. A sample passage:

The question presented by the case at bar is not whether Fuck is a desirable or attractive word, or whether a juvenile should be calling his principal a fucker or a fucking fag. Rather, the question is one of constitutionality and whether the state can criminalize the speech in question by application of the statute at issue. The prosecution is attempting to hold a juvenile criminally responsible for the age-old tradition of name-calling. Although [the defendant] could have selected a more desirable choice in prose such as "I respectfully dissent" or "I am disappointed with your attitude, sir, and politely ask you to cease and desist," the use of the words fucker and fucking nonetheless do not amount to criminal conduct...

For the linguistically minded, this brief also traces the history of the word "fuck" from a 15th-century poem, and students of anthropology may be interested in its discussion of the F-word in modern American society. (An example of the latter that the public defender could have cited but didn't is the growing acceptance of "fuck" in spell check software. This acceptance, however, is still incomplete; my spell checker paradoxically recognizes "fucking" but not the root word "fuck" itself.)

An ambiguous poll

Kesher Talk links to a poll of West Bank and Gaza settlers that's been getting a good deal of media play, including the English-language Palestine Chronicle. The salient numbers, if accurate, suggest that support for Palestinian independence is not as high among settlers as among the general Israeli electorate, but has reached significant proportions:

About 44 percent of settlers said that Palestinians deserve their own state while 47 percent believe this Palestinian state would eventually be established on parts of the West Bank.


When asked whether they would oppose the evacuation of settlements, 90 percent of respondents said they would not break the law in response to an order to evacuate settlements, 54 percent responded that they would oppose the decision within the legal framework.

There are, however, at least two obvious problems with these figures. First, the settlers are by no means a monolithic group; they include not only the hilltop youth and the inhabitants of the Gaza and Hebron enclaves but the residents of the development towns just east of the Green Line. The poll results do not include a geographic breakdown, but I'd hazard a guess that support for a Palestinian state among the seam line settlers is considerably higher than in Hebron. This is significant in that the seam line settlements will probably remain in Israel as part of a land swap, and the settlers who will be most affected by Palestinian statehood are precisely those who are most opposed to it. Similarly, although an encouraging 90 percent of settlers answered that they would not break the law to oppose settlement evacuations, the poll results did not indicate whether this figure was lower in Hebron or Gaza.

In addition, the wording of the question about Palestinian statehood "on parts of the West Bank" leaves a great deal of wiggle room. "Parts of the West Bank" could mean a Taba-style arrangement with the Palestinians receiving 97 percent of the West Bank plus a land swap from within the Green Line, or it could mean a non-contiguous state on 42 percent of the West Bank as was once suggested by Sharon. While the settlers' growing acceptance of a Palestinian state on "parts of the West Bank" may indicate a conceptual readiness for peace, it says little about whether the settlers are ready to accept a viable two-state solution. If the settlers had been questioned about specific statehood plans such as the Camp David, Clinton and Taba proposals, the results would have been much more meaningful.

The clue to the poll's ambiguity may lie in the fact that it was conducted by Peace Now, which might see a potential advantage in poll numbers indicating that the settlers' resolve is weakening. This may indeed be the case, but without more detailed numbers, it's impossible to tell whether the settlers' attitude is one of support or resignation.

Jewish refugees in Africa

While researching a completely different topic, I came across an archived Nazi document describing a semi-serious proposal for a Jewish state in what was then Northern Rhodesia:

The initiative to settle Jews in Rhodesia was raised a few years ago. There was even talk about the creation of a Jewish territory in this land during the Evian Conference. A commission of experts is presently at work to investigate the possibility of settling Jewish emigrants in Rhodesia. The commission's expert, Campbell, proposes the development of a separate Jewish state in the Mwilunga territory, at the north-eastern tip of northern Rhodesia between Belgian Congo and Portuguese West Africa. The territory is twice the size of Palestine…and is rich in water. At this time there are only two white farmers in that region. However North Rhodesia wants to grant residence only to a select group of immigrants who have sufficient capital.

About 250 Jews did make it to Northern Rhodesia in the aftermath of Kristallnacht, but there was no mass immigration and the current Jewish population of Zambia is about 35.

Tuesday, July 29, 2003
Blogger issues

If you followed a permalink in and ended up here, just go to the homepage and look for the entry of July 27 - for some reason, the links for this Sunday (and only this Sunday) aren't working. In the meantime, I've moved my planned Blogger exodus up to urgent status, and I hope to have the move completed within a day or two.

UPDATE: The problem seems to have resolved itself for the time being - permalinks for Sunday are working again. I'm still moving.

Augmented force

The UN has authorized 2100 more peacekeeping troops for the Congo, bringing the total strength to 10,800.

The view from Lusaka

Zambian critic David Simpson analyzes the popularity of reality television in Africa. While, like many critics, he views reality television as "intolerably boring," he concedes that it may have some value in presenting a picture of middle-class Africa that is rarely seen in foreign media.

A challenge goes forward

The opposition All Nigeria People's Party's petition to annul the results of the Nigerian presidential election passed its first legal hurdle yesterday as an electoral tribunal denied the president's motion to dismiss. This does not necessarily mean that the opposition will win a final judgment, but the case will now be decided on the merits rather than being dismissed due to technical objections. At the same time, the national electoral commission admitted during a seminar that the April elections were infected with "fundamental flaws." It's probably too late to save this election, but the courts and electoral tribunals might still chart a course for reform by conducting thorough fact-finding and giving maximum public exposure to the fraud that occurred in April.

The Logan Act

Steven Weiss of Protocols raises the interesting question [1, 2] of whether Tom DeLay's trip to the Middle East violates the Logan Act. This act, which is much discussed but little enforced, prohibits American citizens from engaging in private diplomacy against American interests:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

The Logan Act has been the law of the United States since 1799 and derives its name from Dr. George Logan, a Pennsylvania legislator who undertook an unofficial diplomatic mission to resolve a dispute between the United States and France. Kevin Kearney, writing in the Emory Law Journal, describes his adventures thus:

Upon his arrival in Paris, he met with various French officials, including Talleyrand. During these meetings he identified himself as a private citizen, discussed matters of general interest to the French, and told his audience that anti-French sentiment was prevalent in the United States. [Some things never change - ed.] Logan's conversation with Merlin de Douai, who occupied the highest political office in the French republic, was typical. Logan stated that he did not intend to explain the American government's position, nor to criticize that of France. Instead, he suggested ways in which France could improve relations with the United States, to the benefit of both countries. He also told Merlin that pro-British propagandists in the United States were portraying the French as corrupt and anxious for war, and were stating that any friend of French principles necessarily was an enemy of the United States. Within days of Logan's last meeting, the French took steps to relieve the tensions between the two nations; they lifted the trade embargo then in place, and released American seamen held captive in French jails. Even so, it seems that Logan's actions were not the primary cause of the Directory's actions; instead, Logan had merely provided convenient timing for the implementation of a decision that had already been made.

Despite the success of Logan's mission, his activities aroused the opposition of the Federalist faction, who were resentful of the praise showered on Logan by Republican newspapers. The Secretary of State responded by suggesting that Congress "act to curb the temerity and impudence of individuals affecting to interfere in public affairs between France and the United States." The result was the Logan Act, which was rammed through by the Federalist majority with relatively little debate.

The first indictment under the act was brought four years later, against "a Kentucky farmer [who] wrote a newspaper article advocating that the western part of the country form a new nation allied to France." Most scholarly discussions of the Logan Act claim that this was the only indictment, but there has been at least one other - John D. Martin, a prisoner of war in North Korea, was brought before a court-martial for collaborating with North Korean authorities and conducting "re-education" classes in the prison camp where he was held. Neither case ever came to trial; the charges against the Kentucky farmer were quietly dropped, and those against Martin were dismissed because the court-martial had no jurisdiction over acts he committed after the expiration of his enlistment.

There have been, to date, no actual convictions under the Logan Act. This does not mean, however, that it has had no practical effect. Americans who have met with foreign governments to engage in advocacy have frequently been threatened with prosecution, particularly if they were opposed to the policies of the United States; indictments were seriously considered against Stokely Carmichael for his 1967 visit to Hanoi and Jesse Jackson for his 1984 trip to Cuba and Nicaragua. Brad Roth, writing in the Temple Political and Civil Rights Law Review in 1993, argued that the Logan Act had a chilling effect on American advocacy abroad, and that "the lack of a judicial test has, paradoxically, preserved the Act as a latent weapon for use in chilling, or at least impugning, displays of dissent."

It would seem that DeLay's Mideast mission is potential Logan Act fodder. DeLay, an outspoken opponent of Palestinian statehood, plans to meet with Israeli and Palestinian leaders to garner support for a proposed "Palestinian Marshall Plan" which is at odds with the road map. His mission would thus appear to be a contact with a foreign government - two of them, in fact - in support of a foreign policy initiative that is opposed by the administration. It is at least arguable that his intent is to "defeat the measures of the United States."

Nevertheless, it is unlikely that he will be prosecuted under the Logan Act, and it is doubtful whether the act would even be constitutional as applied to his activities. The broad scope of the Logan Act calls into question the point at which free speech ends and foreign policy begins. If I were to write an article urging a foreign government to act in a certain way - as I do nearly every day - would I be engaging in foreign policy or exercising the free speech that is my birthright as an American citizen? If interpreted broadly - as it was in the case of the Kentucky farmer - the Logan Act could prohibit Americans from expressing their views to foreign officials and criminalize the activities of nearly every NGO that works with foreign governments. Such an interpretation would hardly seem desirable.

Not surprisingly, there has been little judicial discussion of the constitutionality of the Logan Act. The Southern District of New York in Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y. 1964), mentioned in passing that the act was likely unconstitutional due to the vagueness of the terms "defeat" and "measures," but did not rule on the question. Of the two authors who have written serious academic treatments of the act, one - Kearney - believes that it is unconstitutional both on vagueness and First Amendment grounds, with the exception of activities that constitute a clear and present danger to the security of the United States. Roth, however, argues that a court might find it constitutional, at least as applied to activities conducted abroad, because the First Amendment may not protect American citizens outside the boundaries of the United States.

There has been surprisingly little discussion of the extraterritorial reach of the First Amendment. The Supreme Court considered the question in Haig v. Agee, 453 U.S. 280 (1981), but saw no need to decide the issue because the petitioner's conduct - revealing the identities of American intelligence personnel - was not protected by the First Amendment in any event. In Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991), the Second Circuit applied the Establishment Clause to Federal funding of programs abroad, but this holding rested on the language in the clause that specifically restrained the Federal government and is not necessarily relevant to free speech cases.

The extraterritorial reach of the free speech clause has been directly addressed in three lower-court decisions, which have reached varying results. The case most relevant to an analysis of the Logan Act is Bullfrog Films, Inc. v. Wick, 646 F. Supp. 492 (C.D. Cal. 1986). The petitioners in Bullfrog Films challenged a decision of the United States Information Agency refusing to declare certain films "educational" - a designation that, if granted, would facilitate their distribution to foreign audiences. The films in question were critical of American foreign and environmental policies, and the USIA denied them certification under a regulation stating that "any material which may lend itself to misinterpretation, or misrepresentation of the United States or other countries, their peoples or institutions" was not educational. The court determined that this regulation was unconstitutional, and rejected a government argument very much like those that have been advanced in support of the Logan Act:

The government has conceded, as it must, that the Bill of Rights applies abroad, but argues that "the exercise of free speech within foreign nations by Americans is subordinate to significant foreign policy considerations and, as such, subject to reasonable regulation." Essentially, the government contends that when United States citizens direct their speech to foreign audiences, the government may regulate such speech on the basis of content; further, that the traditional standards for determining if a law is unconstitutionally vague should be relaxed when foreign audiences are involved, since the government must be permitted to fashion foreign affairs-related regulations in a broad manner. The Court must reject these overly broad propositions, which are fraught with the most serious constitutional implications and which would open the door to unprecedented and intolerable governmental interference with freedom of expression.

The Bullfrog Films court thus found that "in the absence of some overriding governmental interest such as national security, the First Amendment protects communications with foreign audiences to the same extent as communications within our borders." Significantly, the court also stated that foreign policy considerations, standing alone, "are not sufficiently strong to justify content regulation" of speech.

The other two cases that have confronted the extraterritoriality of the First Amendment head-on both involve defamation. One, De Roburt v. Gannett Co., 83 F.R.D. 574 (D. Hawaii 1979) involved a libel suit under Nauru law by the then- president of Nauru. The suit charged that an article in the newspaper Voice of the Pacific, which was published in Guam and regularly shipped to Nauru, had libeled the president by accusing him of crimes and malfeasance in office. The sale of the newspaper in Nauru constituted a "publication" within the meaning of defamation law, but the court decided that Nauru law could only be applied against an American citizen subject to the limitations of the First Amendment. In other words, the court determined that the First Amendment protected an extraterritorial publication by an American company.

Another lower court in Desai v. Hersh, 719 F. Supp. 670 (N.D. Ill. 1989), however, reached a somewhat different result. In contrast to DeRoburt, the Desai court held that the First Amendment did not automatically protect American speech abroad. Instead, the court proposed a sliding scale in which "the greater the 'public concern value' of [foreign] speech, the more it is deserving of first amendment protection." Thus, "only where speech published in a foreign country is about a matter of public concern in the United States can first amendment protections 'spill over' our borders."

Even assuming that a court interpreting the Logan Act were to adopt the Desai formula, however, it is difficult to imagine a subject with greater "public concern value" than the foreign relations of the United States, or even the interactions of other nations. Indeed, the Desai court itself stated as much:

The very subject of the Book - the conduct of United States foreign policy by the President of the United States and his senior foreign policy advisor - presents a compelling illustration of great "public concern value." As the first amendment protects the American public's need for "uninhibited, robust, and wide-open" debate necessary to insure the free flow of information to the American people about matters concerning the United States, the court can envision no expression more deserving of first amendment protections than the Book.

Contrast the subject of the allegedly defamatory article in DeRoburt: the president of Nauru's conduct in the internal affairs of Nauru and its relation with the Marshall Islands. At first glance, this is hardly a matter of great public concern in the U.S. and portends merit to the "public concern value" approach. However, it is difficult to predict the use to which information contained in speech may be put. Upon further review, what might appear to be purely a matter of the internal affairs of a foreign nation, may be newsworthy and of public concern in the United States. As an example, under the facts in DeRoburt, the internal affairs of Nauru might be a matter of public concern regarding a decision by the United States to grant foreign aid to Nauru. Indeed, almost any account of the affairs of foreign countries can, through the use of a reason or imagination, touch upon the affairs of the United States.

Thus, unless a court takes an even stricter course and finds that the First Amendment has no extraterritorial application at all - a course that is unlikely in view of the importance of the First Amendment to the American constitutional scheme - it is probable that foreign policy advocacy abroad is protected under the First Amendment. This is even more true if the speech that allegedly violates the Logan Act is uttered in the United States, as was the case with the unfortunate Kentucky farmer. At least one court in Yahoo v La Ligue Contre le Racisme et l'Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001) has differentiated DeRoburt and Desai by finding that speech made in an American forum, even if directed at foreign audiences, is entitled to First Amendment protection.

Foreign policy advocacy can therefore not be punished unless it falls within a recognized exception to the First Amendment. Such a case might occur, for instance, if an American citizen falsely represents that he is an official of the United States, or if his speech poses a clear and present danger by revealing classified information. It might also be permissible for the United States to restrict freelance diplomacy by serving members of the military on the ground that speech by military personnel implicates particularly acute issues of civilian-military relations - a ground that led a divided District of Columbia Circuit in Culver v. Secretary of the Air Force, 559 F.2d 622 (D.C. Cir. 1976) to uphold restrictions on servicemembers taking part in foreign political demonstrations. Tom DeLay is not a member of the military, however, and whatever may be said of the wisdom of his Middle East proposals, they are neither advanced under false pretenses nor a clear and present danger to the security of the United States.

Moreover, the DeLay case is complicated hy the fact that he is a high-ranking member of Congress. The Supreme Court has held time and again that Congress shares foreign relations authority with the executive. Although the executive branch is responsible for conducting foreign policy, Congress retains oversight authority. It is arguable, therefore, that DeLay is entirely within his rights to meet with foreign officials and sound out their support for an alternate foreign policy initiative in order to fulfill his oversight function and make recommendations to the executive. DeLay's mission might be annoying to the Bush administration, but it is almost certainly not illegal.

UPDATE: Will Baude comments, and raises the interesting question of "whether the power to engage in foreign policy also includes the power to enforce a foreign policy monopoly."

Monday, July 28, 2003
As if Liberia didn't have enough problems already...

Charles Taylor may or may not be leaving, but Prince Johnson, the warlord who executed Samuel Doe in 1990, is definitely planning a comeback.

Laying down the law

Noah Leavitt lays out a legal analysis of the United States' obligations toward Liberia. His analysis is a bit law-school - for one thing, the common law principles of reliance on which he focuses don't really apply in the international context - but his discussion of the historical relationship between the United States and Liberia is interesting.

Sunday, July 27, 2003
Countdown to Arrival Day: Week 1

This post begins the countdown to the first annual Arrival Day, a Jewish holiday that is uniquely American and an American holiday that is uniquely Jewish.

As I've explained before, Arrival Day commemorates the landing of the first Jewish settlers in New Amsterdam on September 7, 1654. This September 7 - which is six weeks away - will be the 349th anniversary of the American Jewish community.

Arrival Day is different from other Jewish holidays in that it is a purely secular occasion - a celebration of the Jewish ethnic group rather than the Jewish religion. As such, non-Jews are allowed, and indeed encouraged, to participate. Just as everyone is Irish on St. Patrick's Day, on Arrival Day everyone is Jewish.

On each of the Sundays between now and September 7, I will continue the countdown to Arrival Day by writing about American Jewish history, the American Jewish community today or my own experience as a Jew and an American. September 7 itself will be the date of the Arrival Day Blogburst. (Yes, I realize how presumptuous it is for a C-list blogger like me to call for a blogburst, but I have to start somewhere.)

Everyone, whether Jewish or non-Jewish, is welcome to take part in the blogburst. Those who want to participate can post on any topic having to do with Jews and Judaism, and need not do so from a Jewish point of view; gentile readers are welcome to write about their encounters with Jews or Jewish culture, or any other relevant Jewish-related subject. I will link to all Arrival Day posts.

I will also host an offline celebration of Arrival Day to which my family, friends and all readers in the NYC area are invited. I will post more details on this as the date gets closer.

Those who want to participate in Arrival Day can do so in two ways:

Link to this post, in order to spread the idea to people outside my small-to-moderate readership; and

Take part in the blogburst on September 7.

If you want to participate in the blogburst, let me know via e- mail or in the comments so that I can look for your articles. Please don't be shy; I'd like to do something spectacular for the 350th anniversary in 2004, and good participation this year will help lay the groundwork.

UPDATE: Permalink fixed.

A startling statistic

According to recently released statistics, the city of Francistown in Botswana has the highest HIV infection rate in the country, at 51 percent.

That's fifty-one percent. As in more than half. Those are high numbers even when compared to the infection rate for Botswana as a whole, which is on the order of 35 percent.

In recent years, Botswana has implemented intensive public health and education measures and, as a result, has stabilized its HIV infection rate. Nevertheless, statistics like those released for Francistown demonstrate how far Botswana has to go in reducing infection. These statistics also underscore the fact that, no matter how successful its HIV education programs, Botswana will need to provide anti-retroviral drugs to a large percentage of its population for decades to come. If this necessity is taxing the resources of even a comparatively wealthy and well-run country like Botswana, it isn't difficult to imagine the effect of similar infection rates on Lesotho, Swaziland and Zimbabwe.

Even if the $15 billion in HIV funding promised by the Bush administration materializes, it will only be the tip of the iceberg.