Law – Page 55 – a sibilant intake of breath

Gay marriage back in the news

I wrote previously on an almost identical issue, but that which needs to be said generally needs to be said again.

Apparently Conservatice Canadian Prime Minister Stephen Harper wants to re-open the debate about gay marriage. At present, it is legal for same-sex couples to get married in Canada. This is a good thing for precisely the same reasons that it is good that couples of different races can get married: it is a simple requirement within a just and equitable society. The fact that homosexuality makes some people uncomfortable is no excuse whatsoever for discrimination. Likewise, the existence of certain traditions about what marriage has meant to some people must not preclude a societal definition that is blind to arbitrary factors. Particular churches can decide for themselves what kind of unions they want to bless and what kind of ceremonies they want to host, but under the law there must be equality and the protection of minority rights.

I am entirely confident that we will look back upon this issue in fifty years time the same way we look back on racially segregated schools today. That is to say, we will see it as a matter where governments took an astonishingly long time to accept a policy that is obviously a moral imperative. Canada’s legal history with regards to homosexuality is certainly not a sterling one. As recently as 1967, the Supreme Court of Canada ruled that Everett Klippert could be jailed as a ‘dangerous sexual offender’ simply on the grounds that he was likely to engage in consensual homosexual sex with adults. He was still in prison until 1971: two years after the Trudeau government decriminalized homosexuality. (See the CBC Timeline)

As regards the Harper government, this is indirectly a positive development. His only hope of getting a majority government in the next election is to prove that the Conservatives can be trusted with one. People are rightly distrustful, because of exactly the kind of political currents that have led to this announcement. Now, we just need the Liberals to clean themselves up quite a bit, get a strong new leader, and turn themselves back into the best option Canadians can hope for at the federal level.

Law and uncertainties

Walking home from the third and least well attended bloggers’ gathering, through this city of strangers, I found myself thinking about the law. It has been a frequent topic of contemplation for me, of late. The way in which the common law, especially, tries to marry thought with power is fascinating. Precedents, rules of interpretation, and styles of thinking are all part of a complex and self-referential body that nonetheless manages to produce a high degree of coherence and maintain broad respect. People may not have much faith in lawyers, in particular, but there is a high level of faith in the system in its entirety. The contrast with something as amorphous (and oft derided) as ‘international relations’ is welcome.

The major reason I don’t see the law as an appealing personal option is because of the kind of life it seems to promise: one of perpetual brutal competition. Coming to a place like Oxford both produces a conviction that you are reasonably intelligent and a certainty that you cannot take on the world. Even trying is a major effort in self-sacrifice for what is ultimately largely personal gain. The question to grapple with, then, is that of what you want to achieve and what you feel that you must.

Returning to the matter of the law, the appeal lies in how it promises the possibility of satisfying my two main long-term objectives. The first of those is to secure the requirements of a good life, in terms of friendships, skills, material resources, and the like. The second is to effect some positive change upon a deeply troubled and unjust world. Part of the reason why I’ve felt as though I have been thrashing around a bit here is that, while I feel that I am advancing these aims, I feel as though I am doing so in a glancing and indirect manner.

My thanks to Robert, Ben, and Antonia for interesting conversation at The Bear tonight. In particular, meeting Ben was a welcome experience.

Government and secrecy

With increasingly credible revelations about illegal surveillance within the United States, the general concern I’ve felt for years about the present administration is becoming progressively more acute. To be fiscally reckless and socially crusading is one thing. To authorize actions that blatantly violate international law (in the case of torture, rendition, and the indefinite detention of noncombatants) as well as domestic law (by disregarding constitutional safeguards and checks on power) an administration shifts from being simply unappealing to actually being criminal. You can’t just throw away the presumption of innocence and probable cause while maintaining the fiction that the foundational rules upon which a lawful society is based are not being discarded.

Perhaps the most worrisome of all the recent developments are the actions and statements being made against the press. I don’t know if there is any truth to the claim that the phones of ABC reporters are being tapped in hopes of identifying confidential sources, but the general argument that wide-ranging governmental activities must be kept secret for the sake of security is terrifying. If history and the examination of the contemporary world reveal anything, it is that protection from government is at least as important as protection from outside threats. As I wrote in the NASCA report (PDF):

Protection of the individual from unreasonable or arbitrary power – in the hands of government and its agents – is a crucial part of the individual security of all citizens in democratic states. While terrorists have shown themselves to be capable of causing enormous harm with modest resources, the very enormity state power means that it can do great harm through errors or by failing to create and maintain proper checks on authority.

Harm to citizens needn’t occur as the result of malice; the combination of intense secrecy and the inevitability of mistakes ensure that such harm will result. Anyone who doubts the capability of the American government and administration to make mistakes need only think of their own explanations for the Hurricane Katrina response, Abu Ghraib, weapons of mass destruction in Iraq, and all the rest.

Three of the NASCA report’s recommendations speak to the issue of secrecy and accountability specifically:

Security measures that are put in place should, wherever possible, require public justification and debate.
The perspective of security as a trade-off should be pro-actively presented to the public through outreach that emphasizes transparency.
With regards to domestic defence planning, military practice reliant upon secrecy should always be subsidiary to civil and legal oversight.

People both inside and outside the United States would be safer if such guidelines were followed. When even Fox News is opening articles with statements such as the one that follows, something has gone badly wrong.

The government has abruptly ended an inquiry into the warrantless eavesdropping program because the National Security Agency refused to grant Justice Department lawyers the necessary security clearance to probe the matter.

A legitimate government cannot operate under a general principle of secrecy. While there are certainly cases where secrecy serves a justifiable purpose – such as concealing the identity of the victim of some forms of crime, or the exact location of certain kinds of military facilities – a democratic government cannot retreat from accountability by its citizens by claiming that oversight creates vulnerability. The lack of oversight creates a much more worrisome vulnerability: worrisome for America, and worrisome for everyone who has faith in the fundamental values of democracy and justice upon which it is ostensibly founded.

Iran, international law, and the bomb

While reading about US Secretary of State Condoleezza Rice explaining why Iranian nuclear enrichment should be referred to the UN Security Council, I immediately began wondering why such enrichment is a breach of international law. The United States has signed the Nuclear Non-Proliferation Treaty (NPT), creating certain legal obligations, as has Iran. India, Pakistan, and Israel are non-signatory nuclear powers. For Iran to actually develop nuclear weapons would be a violation of the NPT, but the process of enrichment – even at an industrial scale that could produce enough uranium-235 for bomb making – does not seem to be, in and of itself. Indeed, the NPT explicitly affirms the right of members to develop civilian nuclear technologies, including uranium enrichment.

The much publicized announcement of Iranian enrichment of uranium was about material enriched to the level of about 3.5% uranium-235: the variety necessary for fission bombs. Such bombs require a much higher concentration of uranium-235, in the vicinity of 90%. Without guessing about the ultimate purpose of the program, the present enrichment activity seems to be in keeping with the requirements of nuclear power, rather than nuclear weapons.

When it comes to the United States and their obligations under the NPT, the present scorecard definitely doesn’t look so hot. The nuclear deal with India that President Bush approved and is now seeking Congressional approval for is one such violation, since it includes the provision of nuclear fuel to a state without appropriate controls in place. Likewise, the push to develop new kinds of nuclear weapons is a definite violation of the spirit – if not the precise letter – of the treaty, which stresses the obligation of states to seek disarmament and the reduction of nuclear arsenals.

Maybe it is in the strategic interests of America to stop Iran from developing nuclear weapons, but they shouldn’t try to cloak that as being an enforcement of international law when it is not. More broadly, the United States should realize that using the United Nations at the times where it seems plausible that it might serve their interests, while ignoring it otherwise, seriously diminishes the credibility of their supposed commitment to multilateralism and international law.

All that said, it is certainly possible that Iran is conducting nuclear research with an aim to developing nuclear weapons. If so, evidence of that breach needs to be presented in an open and verifiable way.

Brief comment on Iran

The idea that the United States is planning to attack Iran seems to be gaining currency in the media. Let us hope that this is an intentional strategy of intimidation meant to bolster efforts to deal with the Iranian nuclear program diplomatically. Compared to Iraq – which had been crippled by sanctions and frequent military interventions in the years leading up to the second Gulf War – Iran certainly retains the offensive capability to inflict considerable direct and indirect damage to American and other western interests.

Consider the single possibility of rendering the Strait of Hormuz impassable. Given the sheer volume of oil that passes through there, a disruption could cause severe economic problems worldwide. Between air power and missiles, Iran also has the capacity to strike targets throughout the region. Any military action in Iran would lead to casualties that make the 2000 or so in Iraq so far look like nothing: and that’s just if the strikes are based around conventional forces. There is apparently talk of using tactical nuclear weapons to strike embedded facilities, such as the uranium centrifuge cascade that is supposedly under construction. Even without nuclear weapons, Iran could inflict massive casualties in retaliation for such an attack: an attack that would also be a gross violation of international law and any reasonable code of morality.

Anyone who is as terrified as I am by recent revelations that the United States may be planning an attack on Iran, or who maintains a general interest in the Middle East region, might want to take a look at a new Oxford blog: Middle East Wonks. Among the contributors is my friend and fellow M.Phil student Roham Alvandi, who I was impressed to learn writes about Iran for the Economist Intelligence Unit.

Milosevic’s death

After five years on trial in The Hague, Slobodan Milosevic died in his cell earlier today. On trial for genocide and war crimes committed in the former Yugoslavia, he is probably the highest profile individual to be put before an international tribunal. Now, despite the thousands of hours in court, the funds expended, and the various difficulties overcome, there will probably never be a verdict.

Of course, it may seem superfluous to deliver one after the death of the man on trial. In this case, however, I don’t think that would be true. It is important to show that these kinds of tribunals are capable of dealing with crimes of the extent Mr. Milosevic is accused of committing. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the equivalent ad hoc tribunal for Rwanda (ICTR) were the precursors to the International Criminal Court (ICC), a body that is in need of establishing itself as an effective mechanism both for deterring crimes against humanity and for punishing those who violate international law in such egregious ways.

There seems to be no evidence, at present, that Mr. Milosevic died of anything other than the high blood pressure and heart condition that had previously served as the justification for an attempt to have him sent to Russia for treatment. It was a request that was not ultimately complied with. Mr. Milosevic died six days after Milan Babic, a fellow Serb prisoner, committed suicide.

Despite the length and expense of these trials, they serve an important documentary role: providing extensive evidence of what took place in Bosnia, Croatia, and Kosovo during the 1990s. They also allow us to look back on choices like the NATO decision to employ a bombing campaign against Serbia with the benefit of better information than we had at the time. To some extent, that uncovering, sorting, and verifying of information has already taken place for the series of wars embodied by the Srebrenica massacre. Hopefully, even without the conviction of Mr. Milosevic, that will serve to make us collectively wiser in the future.

Attempt to spark discussion

Relatively good news this week: The American armed forces have said that they will close the infamous Abu Ghraib prison in Iraq. Of course, with Guantanamo Bay and less well known detention centres in operation, this may be more of an exercise in public relations management than a demonstration of a genuine commitment to human rights.

Relatively bad news: President Bush struck a nuclear deal with India, largely sweeping away the restrictions put in place following its testing of nuclear weapons. The deal is evidence that the period of condemnation following the development of nuclear weapons is relatively short and likely to be truncated for short-term political reasons. Also, like the failure to pursue the reduction of existing weapons stock and experimentation on new designs, the provision of nuclear materials to India violates America’s commitments under the Non-Proliferation Treaty.

South Dakota passed a law criminalizing all forms of abortion in which the life of the mother is not at risk. Through the inevitable series of court challenges, the issue will once again be presented to the Supreme Court, where a danger exists that the legally questionable but highly important precedent of Roe v. Wade will be overturned.

For no particularly good reason, the bid of DP World, a firm from the United Arab Emirates, to buy P&O Ports, owner of six major ports in the United States, has been withdrawn due to political opposition. The Dubai-based company would have been subject to the same security requirements as American firms. This outcome seems to be a reflection of the kind of generalized hostility towards the Muslim world that exists in the Western liberal democracies, despite the efforts of leaders to stress that their objection is to terrorism, not to Islam.

Music and frustration: copy protection schemes

Having spent the last few minutes explaining to a friend why a brand-new, legitimately purchased CD will not play in her computer due to the copy protection EMI has included, I am reminded of my considerable indignation about how the music industry is treating their customers. Yes, in this case, it was possible to disable the copy protection program just by holding shift as the CD was inserted into a Windows computer, but there is no guarantee at all that music you buy today is either usable or safe.

In the worst case, such as the notorious Sony BMG rootkit, inserting a legitimate music CD into your computer intentionally breaks it. It also causes it to report what you listen to to Sony, even if you choose ‘no’ when a screen comes up asking for permission to install software. It also creates really sneaky back doors into your system that can be exploited for any number of purposes, by Sony or random others. While Sony is currently facing lawsuits for this particular, infamous piece of malware, it isn’t nearly enough to put my mind at ease. If some 16 year old had written something comparably dangerous, they would probably be in jail.

Legitimately downloaded music is little better. Songs you buy from the iTunes music store may work with your iPod today, but they won’t work with another portable player. They won’t even play in software other than iTunes, and there is no guarantee that they will still work at some point in the future. Spending a great deal of money on songs from there (and they’ve just had their billionth download), is therefore probably not very wise. You don’t actually own the music you are buying – you’re just buying the right to use it on someone else’s terms: terms that they have considerable freedom to change.

Personally, I will not buy any CD that contains copy protection software. I will not buy a Sony BMG CD, regardless of whether it does or not, nor will I be buying any of Sony’s electronics in the near future. This is a business model that needs to change.

Conservatives and Canada: Gay Marriage Redux

Prime-minister-designate Stephen Harper has pledged to introduce a resolution asking MPs whether they want to reopen the controversial [same sex marraige] debate, and promised it would be a free vote in which MPs can choose a side according to their conscience rather than their party.

-The Globe and Mail

Parliament does not have the power to legislate minority rights on a case-by-case basis, as though laws pertaining to them are the same as any other kind of legislation. Minority rights are subject neither to the whims of public opinion nor the maneuvering of politicians: that’s the whole point of the Charter and a central tenet of tolerant liberal democracy. One of the most intelligent things Paul Martin did as Prime Minister was to stress this. MPs who say they will “vote according to the wishes of their constituents” should be ashamed of themselves for either misunderstanding or publicly misrepresenting the nature of minority rights.

The importance of a government choosing to overturn such a law extends beyond the same-sex marriage debate itself. It speaks to the possibility of a socially activist government of a kind that is neither well suited to Canada nor justified by the results of the election. In that way, I am especially glad for people who elected NDP members of Parliament, who I expect will be particularly effective at countering the Conservatives when they step too far.

I think that the complete failure of the Conservatives to win seats in Canada’s three biggest cities: Toronto, Montreal, and Vancouver demonstrates the limitations of their perspectives on government. The same irony comes up in the United States, where you see people in places least likely to be directly affected by terrorism most concerned about it and those least exposed to matters like immigration or same-sex marriage most threatened by it. ‘Traditional values’ do not deserve an equal hearing when they are fundamentally oppressive, and tolerance for alternative viewpoints does not need to extend to the point where they can be allowed to form national policy.

I don’t think Stephen Harper will be stupid enough to shift policy too far to the right on social issues. Of particular importance is the fact that he must be hoping that if he can convince enough Canadians that he is a moderate and acceptable leader, he will be returned with a majority at some point in the future. The way to do that may be to placate your socially conservative supporters with a few token gestures, while actually working to stay close to the political centre.

That said, governmental change is unpredictable. We shall have to see what transpires.

Election Day

The polls in Canada are open, but there is a ban on the media reporting any results until they close in the Yukon and British Columbia: eight time zones away. By the time that happens, at 3:00am tonight, I should already be asleep, with a superb essay for Dr. Hurrell printed and consigned to a neatly labeled envelope.

In short, I am looking for any interesting information from people back home: electoral predictions, observations, celebrations, lamentations – whatever you care to share.

The only personal message that I want to send to people in Canada is to take the trouble to get out and vote. This applies especially to friends of mine. While I know that most of you are going to vote anyhow, it’s worth remembering that the turnout among young voters is just abysmal. Regardless of the outcome, this election is going to change the course of Canadian politics. As such, it seems like a basic democratic responsibility to contribute.

[Update: 6:37pm GMT] As a Canadian citizen running a blog from outside Canada that isn’t hosted inside Canada, I am pretty sure I can report whatever I want – regardless of media blackout laws. While I don’t have any early polling results on hand, here is my personal electoral prediction:

Liberal: 94-96
Conservative: 125-128
New Democrat: 28-33
Bloc: 53-57
Independent: 1

The total number of seats in the House of Commons is 308, so a majority would be 154.

[Update 11:36pm GMT] As I understand the closing of polls and the time zones:

Polls in Newfoundland close in fifteen minutes.
Polls in Atlantic Canada close in just under an hour.
Polls in Ontario and Quebec close in three hours.
Polls in British Columbia close in three and a half hours.
Exciting stuff, but no results yet.

[Update 12:23am GMT] Regardless of your political stance, this is an exciting night. The Liberals have been in power since I was ten years old: more than half of my life. All signs indicate that Canada will have a new Prime Minister tomorrow. What’s this going to mean? It’s a question that feels much more pressing than that of whether world war one confirmed or refuted liberal theory: the topic of tomorrow morning’s seminar.

[Update 12:47am GMT] For the moment, at least, it seems that both ProAlberta and Captain’s Quarters (blogs that had declared an intention to publish polling results as they come in) have been overwhelmed by the number of people attempting to access them.

This probably marks the high point in worldwide interest in Newfoundland for at least the last couple of years.

[Update: 2:06am GMT] People have been posting numbers in the comments which, as I understand it, is fine as long as you’re outside Canada. I haven’t seen any numbers myself that I have any reason to believe are credible. In less than an hour, the real numbers will be released by the CBC. Personally, I will be waiting for definitive coverage.

It also seems that Radio Canada International is, intentionally or not, already streaming polling information. It’s only available in RealPlayer or Windows Media format, so I cannot listen. Since the real results will be coming up soon, there really isn’t much point.

[Final Update: 2:21am] The best numbers I can see are up at The Surly Beaver, which is running from London. If you don’t want to wait 39 more minutes for CBC results, scoot that way.

[Super Final Update: 3:02am GMT] The CBC numbers are up. Here are the preliminary figures: Elected, (Leading), Vote share

Conservatives: 12, (75), 34.99%
Liberals: 18, (52), 38.31%
Bloc: 1, (28), 1.55%
NDP: 3, (20), 22.00%

It felt really good to be part of the media for a while, but I am happy to let the pros take over now.