As if the basic conception of a left-libertarian/anarchist hacker collective, committing its technological efforts to standing up for its broader partisan principles, didn't deserve abundant gratitude, the Anonymous hackers collective and its allies are back waging cyber war against Israel and, today, they appear to have succeeded compromising the Internet site of Israel's Mossad intelligence/security service. The act was apparently undertaken, in part, to avenge the death of one its members, Tayeb Abu Shehada, killed either by Israeli security forces or armed settlers at a protest in the West Bank village of Huwwara last weekend. The group additionally offered in an online statement: "As a collective, 'Anonymous' does not hate Israel, it hates that Israel's government is committing genocide & killing unarmed people in Gaza in order to obtain more land at the border" (at: https://plus.google.com/107875209762762391698/posts/PX6VvoCnzaR#107875209762762391698/posts/PX6VvoCnzaR).
I like to take credit for the nuanced intellectual positions that I try to take on most of the issues I've discussed on this blog, but I have to admire the blunt principled commitment of Anonymous to reduce the new Israeli offensive in Gaza to its most simplistic terms and to utilize these as motivation to act on the behalf of the innocent non-combatants of Gaza in the name of peace and, possibly, against the brutish colonization of the meager land holdings of the Palestinian people by Israel. I am sure that Israel will not be drastically impacted by the compromise of an external website for its intelligence/security service, but it at least contributes a mild bloody nose to a regime that appears determined to undertake a new, permanent occupation of Gaza both as a means of punishing Hamas for its adamant denial of recognition to the Zionist state and to punish the Fatah government of the Palestinian Authority for making peace with Hamas. In this regard, I give Anonymous much credit and wish them continued success in their assault on the information technology resources of the Israeli government and, especially, its military.
Thursday, July 31, 2014
Sunday, July 27, 2014
On Burwell v. Hobby Lobby Stores Inc. et al III
3. The real (and unspoken) criticism evident in the reaction against the Hobby Lobby decision concerns its effect upon capitalist labor markets and the necessity that capitalist workers cede their Constitutional privileges as a condition of employment.
It is my contention that most criticisms of the decision in Burwell v. Hobby Lobby Stores Inc. et al have directed their foci toward the wrong issues. In the initial set of comments that I offered on this blog when the case was originally argued as Sebelius v. Hobby Lobby, I similarly failed to identify the critical issue against which a more thorough critique of the eventual majority opinion could have been framed. Likewise, I would argue that Justice Ginsberg's dissenting opinion fails to uncover the heart of the problem concerning the relationship between religious objections by employers to reproductive health procedures and the enforcement of adequate minimal reproductive health benefits in employer sponsored health insurance plans. Justice Ginsberg, thus, concentrates her attention on the issues involved in women's reproductive health care and the attention afforded to ensuring access to reproductive health procedures by legislators at the time of passage of ACA. In view of the particular issues at stake in the development of regulatory rules and the enforcement of ACA and in the larger Constitutional history implicated in the balancing of governmental prerogatives against free exercise claims arising from laws of general applicability, the particular emphases of Justice Ginsberg's opinion are quite understandable. For my part, as an economist (and, in particular, as a Marxist economist), oversights concerning the proper situating of the ACA as a device of labor market regulation are less easily forgiven!
Emphatically, notwithstanding the particular focus of the Hobby Lobby case on religious objections to certain women's reproductive procedures, the regulation of contraceptive coverage in employer sponsored health insurance plans is a derivative issue rooted in the larger function of the act to expand a regime of employer sponsored health insurance to a larger segment of the employed American labor force. This is not to say that the development of health insurance marketplaces for individuals not otherwise covered by an employer was not a noteworthy and important component of the legislation, but there is no suggestion, based on the legislative history of the ACA, that individual health care exchanges are destined to replace employer sponsorships of health insurance as the bedrock of health insurance coverage in the U.S. In this regard, ACA is, succinctly, an act of legislation whose most important effects are manifest on American labor markets. Like the National Labor Relations Act of 1935, the Fair Labor Standards Act of 1937, and numerous other Congressional enactments, ACA aims to restructure particular features of the labor market bargain between employer and prospective and/or continuing employees, to mandate a set of inducements and penalties for employers of a threshold employment level to sponsor (though not necessarily pay for) a set of health insurance plans satisfying minimal coverage levels for preventative and acute health care procedures. The law aims to do so, in part, to reduce the long term costs of health insurance to employers and to other suppliers of health care coverage and, as such, to control the overall growth of health care expenditures as a share of gross domestic product. Such a motivation is intrinsically linked to economic development and to the maintenance of basic living standards for American workers, inclusive of health care consumption.
As I suggested in the last section of this post, criticisms of the Hobby Lobby decision focusing on the privately-held corporation as a business form miss the point on why the majority opinion is so problematic. In a much broader sense, it makes no difference whether an employer is a sole proprietor, partnership, or a limited liability corporate entity when it comes to the capacity of the employee to exercise certain privileges extended by labor legislation, either at the federal, state, or local level. Barring certain categories specified within the language of the Fair Labor Standards Act and its various amendments, every hourly worker in American labor markets is entitled to receive a minimum wage as compensation. Likewise, every employer of every conceivable form of enterprise is bound by state and federal statutes and regulations against the use of child labor, subject to particular terms and exclusions. Moreover, since the "Judicial Revolution" of 1937, the federal judiciary has largely seen fit to rule that legislative enactments relative to labor markets and to the organization of commerce, in general, are basic to the functioning of any government and, thus, demand minimum standards of scrutiny (i.e. a rationality standard) in evaluating constitutionality.
Such determinations have been critical insofar as they have made American labor markets subjects of direct involvement and structuration by government at multiple jurisdictional levels. Emphatically, the protection of American workers, as the generally weaker party to the labor market transaction, has become, at least partly, a matter for democratic consensus rather than strict reliance on the unvarnished freedom of market mechanisms. Critically, the protections afforded to workers in labor market transactions only extend so far. They are construed in such terms that they do not infringe on the managerial prerogatives of employers, defining the particular practices through which entrepreneurs propose to operate their businesses in the interests of diverse stake holders and as representatives of capital (i.e. representing the ownership share exercising entrepreneurial initiative and default control over the operations of a firm). The boundaries of managerial prerogatives, in relation to governmental regulation in the public interest, on the one hand, and in relation to the interests of labor (individual workers and organized labor), on the other hand, are by no means clearly defined. They remain, alternately, subjects for public/legislative debate and democratic discourse, on the one hand, and for administrative/bureaucratic (e.g. NLRB) and/or judicial interpretation, on the other.
In the case of ACA, Congress devised broad statutory standards defining how the contemplated transformations of required employer sponsorships of health insurance should proceed and vested administrators in the Department of Health and Human Services (HHS) and, in particular, the Health Resources and Services Administration (HRSA) with the authority to devise precise standards on what would constitute minimum coverage requirements in employer sponsored health insurance plans. Presumptively, such standards, enacted in the public interest as a particular regulation of labor market transactions, refining and constraining managerial prerogatives in the provision of benefits to employees, serve a valid public purpose in expanding health insurance coverage across all labor markets to reduce aggregate growth of health expenditures as a percentage of gross domestic product and protecting a wider range of American workers from the financial consequences of a catastrophic increase in individual health care costs. In particular, the specification of women's reproductive care coverage as a component in minimum coverage standards serves the very specific needs of female workers with regard to health care access related to family planning/contraception and pregnancies/prenatal care. Moreover, reliance on labor market regulation to achieve these ends can be assumed to be rationally related to satisfying this public purpose.
The point that I seek to emphasize here, both with respect to the particular challenge to the ACA made by the Greens and the Hahns over contraceptive coverage and with respect to free exercise privileges of employers (as a component of managerial prerogatives) of any business form in general, is that the Hobby Lobby decision underscores a very relevant point about capitalist labor market transactions. That is to say, apart from the particular privileges (e.g. minimum wages, overtime pay requirements, protections from occupational discrimination against targeted minorities) that legislatures have democratically chosen to impart on workers and the particular constraints on managerial prerogatives defined by legislatures, administrators, and/or jurists, workers may expect to check their Constitutional liberties and privileges at the door when they accept an offer of employment. Moreover, the fact that an employer may be fully vested with Constitutional privileges regarding free speech and free exercise of religious beliefs may, by contrast, necessitate a total deprivation of the free speech and free exercise privileges of employees.
To fully elaborate what I think is a stake in the extension of free exercise privileges into the realm of managerial prerogatives of capitalist employers and, hence, conditionalities for employment by workers, I need to develop a multi-level analysis, recognizing certain norms of liberal, individualist "rights" discourse, on the one hand, and developing specifically Marxist class-analytic insights, on the other.
Capitalist Workers and Constitutional Privileges in a Liberal "Rights" Discourse
In regard to the former discursive field, approaching labor market transactions, we are considering the fundamental economic freedom to transfer/alienate a particular good or service in exchange for another good or service under conditions of uncertainty. That is to say, in labor markets, we are presuming that individual human beings have the capacity and legal sanction to exchange their capacity to do work (physical, mental, or otherwise) for some defined finite period of time, a service commodity that Marxian theorists like myself have historically labeled labor power. In the broader history of the development of capitalist economic institutions, human beings capable of engaging in such an exchange have been characterized as free labor (in contrast, within American history, to slave labor, individuals incapable of freely alienating their labor power in capitalist labor markets). Free laborers enter labor markets to offer (i.e. rent out) their labor power in exchange for a mass of goods and services or a monetary equivalent (i.e. a money wage or salary), consumed in order to achieve the reproduction of labor power over time to enable the worker to rent it out repeatedly. It would be possible to make the argument here that economic compulsion for free laborers to make such exchanges as a basic condition of human existence in a market economy essentially diminishes the entire meaning of free labor, but I am not going to proceed in this direction. Let's assume that workers have other alternatives to alienating their labor power, even if their consumption possibilities from not doing are manifestly inferior.
The one thing that we know about a free laborer in the United States is that every free laborer has a set of individual liberties/privileges emanating from the U.S. Constitution and, more specifically, from the Bill of Rights. Our free laborer is at liberty, in accordance with the First Amendment, to speak freely, to freely exercise her religious beliefs, and to assemble freely with others in order to more effectively petition their government to amend existing policies or otherwise publicize to a wider audience collective advocacy for particular social causes. She is also free, under certain conditions, to purchase and bear firearms, consistent with the terms of the Second Amendment. She has a range of protections, under the Fourth, Fifth, and Sixth Amendments, against arbitrary treatment by civil/governmental authorities and a set of privileges enabling her defense in case she has been charged with committing a criminal act. Fundamentally, she is conceived within the eyes of the Constitution as a free individual human being, secure against arbitrary exercises of power by her government and against arbitrary treatment from other free individuals committed against her life, liberty, and personal property, subject to such limitations to which she has personally consented. In this respect, her undiminished right to interact with other free individuals and enter into mutually advantageous contractual agreements is respected by the Constitution and the government that it constitutes, and the power of such contracts on freely contracting parties is inviolable in relation to the actions of the government.
The extension of such liberties constitutes the background against which free laborers enter into labor markets with the intention of alienating their labor power. Most fundamentally, the right of individuals to enter into mutually advantageous contracts with other individuals establishes the institutional basis for the functioning of labor markets. At earlier moments in the development of American capitalism, this right was regarded as wholly sacrosanct, enshrined in Constitutional interpretations as "liberty of contract" (see Lochner v. New York, 198 U.S. 45 (1905), in which the U.S. Supreme Court invalidated a New York statute limiting the hours worked by bakers in the interest of promoting public safety in the production of baked goods). However, the sacrosanct character of the right to freely contract within labor markets was among the primary casualties of the federal Judicial Revolution of 1937. At least since 1937, the capacity of legislatures to craft statutory limitations on the contractual liberties of free laborers and capitalist employers in the interest of protecting workers (in their generally weaker position) and advancing the broader public interest has been widely affirmed by jurists, particularly at the federal level. The free laborer, thus, enters labor markets with a set of preliminary legally-enforced guarantees.
The labor market, as an environment of regulated contractual liberties is not equivalent to the workplace itself. For that matter, in an age when information technology and changes in labor practices (e.g. telecommuting, work from home, etc.) are blurring the distinctions between the workplace and the home, it is becoming less clear where the boundaries of the workplace end, even if we can sensibly define the boundaries of the labor market/bargaining processes between free laborers and capitalist employers. In earlier periods, it might have been more readily possible to ascertain at what moments during a given time period, say a week, that a free laborer had alienated their labor power. For a factory worker in the 1950s, it might have been the forty hours per week spent within the confines of the workplace. These boundaries are less well defined for a contemporary technology worker employed to work from home. We have to articulate a critical spatial difference between the workplace and the home, on the one hand, and a temporal difference between labor time and leisure/non-work time, on the other, and these distinctions are not at all clear at the present moment.
Emphatically, the reason why spatial and temporal distinctions between work and non-work are so relevant is because free laborers give up a wide range of their Constitutional liberties when they transcend the boundaries constituted by mutually beneficial contracting with capitalist employers to actually enter employment. For example, employees lack liberties to engage in free speech (for a good account on the absence of free speech in capitalist employment, see Michael Dolgow, "Where Free Speech Goes to Die: The Workplace," in Bloommberg Businessweek (3 Aug 2012, at: http://www.businessweek.com/articles/2012-08-03/where-free-speech-goes-to-die-the-workplace). Such deprivations of free speech liberties are readily apparent in on site workplaces, where employees lack the right to advocate particular causes not supported by employers and not specifically protected by labor laws ( under certain conditions, speech involving "concerted activities" for the purpose of workers' "mutual aid and protection," explicitly concerning but not necessarily limited to union organizing or contract negotiations, is protected under section 7 of NLRA, see Kate E. Andrias (2003), "A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections," Yale Law Journal, Vol. 112, no. 8, 2415-2463 (ref: footnote 17, 2420), at: http://www.yalelawjournal.org/note/a-robust-public-debate-realizing-free-speech-in-workplace-representation-elections). Employers can restrict the free speech of employers in the confines of the workplace under most circumstances, and, under certain circumstances, especially involving discriminatory speech, employers may have a legal obligation to discipline or discharge workers for particular acts of expression if only to guard against civil liability for violation of anti-discrimination laws committed by employees.
On the other hand, the role of information technology in spatially and temporally redistributing the workplace and, even more so, in generating an explosion of social media, enabling individuals, like me, to produce and publish, for open online distribution, social and political opinions that may contradict those of an employer introduces potentially intractable complications in the exercise of free speech by individuals. It might, for example, be conceivable to spatially and temporally extend the capacity of an employer to police the free speech of employees to spaces and times that do not coincide with traditional conceptions of the workplace. However, when such extensions occur, especially when working practices become flexibly entertwined with non-work, boundary issues, pertinent to the exercise of individual free speech, make it difficult to disentangle the liberties of individuals in non-work time and space from the constrained liberties of employees representing the interests of a capitalist employer.
Beyond such entanglements, we have the further issue of at will employment, as the predominant Common law institution governing American labor markets. At will employees enjoy tenure within their occupational relationship with an employer strictly at the employer's pleasure, implying that an employee can be discharged at any time, with or without prejudicial cause. Taking into account at will employment as the institution characterizing most private sector labor market contracts in the U.S., not otherwise structured by a collective bargaining agreement specifying particular procedures required for the dismissal of employees, it is entirely conceivable that acts of free speech by a free private individual conducted entirely outside of the workplace and not otherwise associated in any way with the individual's employer, generating tangible, published materials contradicting the social or political beliefs of the employer, may contribute to individual's dismissal from the workplace as an employee. The conclusion here should be fairly clear: as a condition of employment, free laborers may be compelled to cede their free speech liberties in toto, to the extent that their expressions might contradict the opinions of their capitalist employer. As such, the vast of expansion of electronic social media in recent years has produced the contradictory result that, for a vast majority of working Americans, the First Amendment protection of free speech may disappear entirely, to the extent that employees mean to keep their jobs and their livelihoods!
It is my contention that most criticisms of the decision in Burwell v. Hobby Lobby Stores Inc. et al have directed their foci toward the wrong issues. In the initial set of comments that I offered on this blog when the case was originally argued as Sebelius v. Hobby Lobby, I similarly failed to identify the critical issue against which a more thorough critique of the eventual majority opinion could have been framed. Likewise, I would argue that Justice Ginsberg's dissenting opinion fails to uncover the heart of the problem concerning the relationship between religious objections by employers to reproductive health procedures and the enforcement of adequate minimal reproductive health benefits in employer sponsored health insurance plans. Justice Ginsberg, thus, concentrates her attention on the issues involved in women's reproductive health care and the attention afforded to ensuring access to reproductive health procedures by legislators at the time of passage of ACA. In view of the particular issues at stake in the development of regulatory rules and the enforcement of ACA and in the larger Constitutional history implicated in the balancing of governmental prerogatives against free exercise claims arising from laws of general applicability, the particular emphases of Justice Ginsberg's opinion are quite understandable. For my part, as an economist (and, in particular, as a Marxist economist), oversights concerning the proper situating of the ACA as a device of labor market regulation are less easily forgiven!
Emphatically, notwithstanding the particular focus of the Hobby Lobby case on religious objections to certain women's reproductive procedures, the regulation of contraceptive coverage in employer sponsored health insurance plans is a derivative issue rooted in the larger function of the act to expand a regime of employer sponsored health insurance to a larger segment of the employed American labor force. This is not to say that the development of health insurance marketplaces for individuals not otherwise covered by an employer was not a noteworthy and important component of the legislation, but there is no suggestion, based on the legislative history of the ACA, that individual health care exchanges are destined to replace employer sponsorships of health insurance as the bedrock of health insurance coverage in the U.S. In this regard, ACA is, succinctly, an act of legislation whose most important effects are manifest on American labor markets. Like the National Labor Relations Act of 1935, the Fair Labor Standards Act of 1937, and numerous other Congressional enactments, ACA aims to restructure particular features of the labor market bargain between employer and prospective and/or continuing employees, to mandate a set of inducements and penalties for employers of a threshold employment level to sponsor (though not necessarily pay for) a set of health insurance plans satisfying minimal coverage levels for preventative and acute health care procedures. The law aims to do so, in part, to reduce the long term costs of health insurance to employers and to other suppliers of health care coverage and, as such, to control the overall growth of health care expenditures as a share of gross domestic product. Such a motivation is intrinsically linked to economic development and to the maintenance of basic living standards for American workers, inclusive of health care consumption.
As I suggested in the last section of this post, criticisms of the Hobby Lobby decision focusing on the privately-held corporation as a business form miss the point on why the majority opinion is so problematic. In a much broader sense, it makes no difference whether an employer is a sole proprietor, partnership, or a limited liability corporate entity when it comes to the capacity of the employee to exercise certain privileges extended by labor legislation, either at the federal, state, or local level. Barring certain categories specified within the language of the Fair Labor Standards Act and its various amendments, every hourly worker in American labor markets is entitled to receive a minimum wage as compensation. Likewise, every employer of every conceivable form of enterprise is bound by state and federal statutes and regulations against the use of child labor, subject to particular terms and exclusions. Moreover, since the "Judicial Revolution" of 1937, the federal judiciary has largely seen fit to rule that legislative enactments relative to labor markets and to the organization of commerce, in general, are basic to the functioning of any government and, thus, demand minimum standards of scrutiny (i.e. a rationality standard) in evaluating constitutionality.
Such determinations have been critical insofar as they have made American labor markets subjects of direct involvement and structuration by government at multiple jurisdictional levels. Emphatically, the protection of American workers, as the generally weaker party to the labor market transaction, has become, at least partly, a matter for democratic consensus rather than strict reliance on the unvarnished freedom of market mechanisms. Critically, the protections afforded to workers in labor market transactions only extend so far. They are construed in such terms that they do not infringe on the managerial prerogatives of employers, defining the particular practices through which entrepreneurs propose to operate their businesses in the interests of diverse stake holders and as representatives of capital (i.e. representing the ownership share exercising entrepreneurial initiative and default control over the operations of a firm). The boundaries of managerial prerogatives, in relation to governmental regulation in the public interest, on the one hand, and in relation to the interests of labor (individual workers and organized labor), on the other hand, are by no means clearly defined. They remain, alternately, subjects for public/legislative debate and democratic discourse, on the one hand, and for administrative/bureaucratic (e.g. NLRB) and/or judicial interpretation, on the other.
In the case of ACA, Congress devised broad statutory standards defining how the contemplated transformations of required employer sponsorships of health insurance should proceed and vested administrators in the Department of Health and Human Services (HHS) and, in particular, the Health Resources and Services Administration (HRSA) with the authority to devise precise standards on what would constitute minimum coverage requirements in employer sponsored health insurance plans. Presumptively, such standards, enacted in the public interest as a particular regulation of labor market transactions, refining and constraining managerial prerogatives in the provision of benefits to employees, serve a valid public purpose in expanding health insurance coverage across all labor markets to reduce aggregate growth of health expenditures as a percentage of gross domestic product and protecting a wider range of American workers from the financial consequences of a catastrophic increase in individual health care costs. In particular, the specification of women's reproductive care coverage as a component in minimum coverage standards serves the very specific needs of female workers with regard to health care access related to family planning/contraception and pregnancies/prenatal care. Moreover, reliance on labor market regulation to achieve these ends can be assumed to be rationally related to satisfying this public purpose.
The point that I seek to emphasize here, both with respect to the particular challenge to the ACA made by the Greens and the Hahns over contraceptive coverage and with respect to free exercise privileges of employers (as a component of managerial prerogatives) of any business form in general, is that the Hobby Lobby decision underscores a very relevant point about capitalist labor market transactions. That is to say, apart from the particular privileges (e.g. minimum wages, overtime pay requirements, protections from occupational discrimination against targeted minorities) that legislatures have democratically chosen to impart on workers and the particular constraints on managerial prerogatives defined by legislatures, administrators, and/or jurists, workers may expect to check their Constitutional liberties and privileges at the door when they accept an offer of employment. Moreover, the fact that an employer may be fully vested with Constitutional privileges regarding free speech and free exercise of religious beliefs may, by contrast, necessitate a total deprivation of the free speech and free exercise privileges of employees.
To fully elaborate what I think is a stake in the extension of free exercise privileges into the realm of managerial prerogatives of capitalist employers and, hence, conditionalities for employment by workers, I need to develop a multi-level analysis, recognizing certain norms of liberal, individualist "rights" discourse, on the one hand, and developing specifically Marxist class-analytic insights, on the other.
Capitalist Workers and Constitutional Privileges in a Liberal "Rights" Discourse
In regard to the former discursive field, approaching labor market transactions, we are considering the fundamental economic freedom to transfer/alienate a particular good or service in exchange for another good or service under conditions of uncertainty. That is to say, in labor markets, we are presuming that individual human beings have the capacity and legal sanction to exchange their capacity to do work (physical, mental, or otherwise) for some defined finite period of time, a service commodity that Marxian theorists like myself have historically labeled labor power. In the broader history of the development of capitalist economic institutions, human beings capable of engaging in such an exchange have been characterized as free labor (in contrast, within American history, to slave labor, individuals incapable of freely alienating their labor power in capitalist labor markets). Free laborers enter labor markets to offer (i.e. rent out) their labor power in exchange for a mass of goods and services or a monetary equivalent (i.e. a money wage or salary), consumed in order to achieve the reproduction of labor power over time to enable the worker to rent it out repeatedly. It would be possible to make the argument here that economic compulsion for free laborers to make such exchanges as a basic condition of human existence in a market economy essentially diminishes the entire meaning of free labor, but I am not going to proceed in this direction. Let's assume that workers have other alternatives to alienating their labor power, even if their consumption possibilities from not doing are manifestly inferior.
The one thing that we know about a free laborer in the United States is that every free laborer has a set of individual liberties/privileges emanating from the U.S. Constitution and, more specifically, from the Bill of Rights. Our free laborer is at liberty, in accordance with the First Amendment, to speak freely, to freely exercise her religious beliefs, and to assemble freely with others in order to more effectively petition their government to amend existing policies or otherwise publicize to a wider audience collective advocacy for particular social causes. She is also free, under certain conditions, to purchase and bear firearms, consistent with the terms of the Second Amendment. She has a range of protections, under the Fourth, Fifth, and Sixth Amendments, against arbitrary treatment by civil/governmental authorities and a set of privileges enabling her defense in case she has been charged with committing a criminal act. Fundamentally, she is conceived within the eyes of the Constitution as a free individual human being, secure against arbitrary exercises of power by her government and against arbitrary treatment from other free individuals committed against her life, liberty, and personal property, subject to such limitations to which she has personally consented. In this respect, her undiminished right to interact with other free individuals and enter into mutually advantageous contractual agreements is respected by the Constitution and the government that it constitutes, and the power of such contracts on freely contracting parties is inviolable in relation to the actions of the government.
The extension of such liberties constitutes the background against which free laborers enter into labor markets with the intention of alienating their labor power. Most fundamentally, the right of individuals to enter into mutually advantageous contracts with other individuals establishes the institutional basis for the functioning of labor markets. At earlier moments in the development of American capitalism, this right was regarded as wholly sacrosanct, enshrined in Constitutional interpretations as "liberty of contract" (see Lochner v. New York, 198 U.S. 45 (1905), in which the U.S. Supreme Court invalidated a New York statute limiting the hours worked by bakers in the interest of promoting public safety in the production of baked goods). However, the sacrosanct character of the right to freely contract within labor markets was among the primary casualties of the federal Judicial Revolution of 1937. At least since 1937, the capacity of legislatures to craft statutory limitations on the contractual liberties of free laborers and capitalist employers in the interest of protecting workers (in their generally weaker position) and advancing the broader public interest has been widely affirmed by jurists, particularly at the federal level. The free laborer, thus, enters labor markets with a set of preliminary legally-enforced guarantees.
The labor market, as an environment of regulated contractual liberties is not equivalent to the workplace itself. For that matter, in an age when information technology and changes in labor practices (e.g. telecommuting, work from home, etc.) are blurring the distinctions between the workplace and the home, it is becoming less clear where the boundaries of the workplace end, even if we can sensibly define the boundaries of the labor market/bargaining processes between free laborers and capitalist employers. In earlier periods, it might have been more readily possible to ascertain at what moments during a given time period, say a week, that a free laborer had alienated their labor power. For a factory worker in the 1950s, it might have been the forty hours per week spent within the confines of the workplace. These boundaries are less well defined for a contemporary technology worker employed to work from home. We have to articulate a critical spatial difference between the workplace and the home, on the one hand, and a temporal difference between labor time and leisure/non-work time, on the other, and these distinctions are not at all clear at the present moment.
Emphatically, the reason why spatial and temporal distinctions between work and non-work are so relevant is because free laborers give up a wide range of their Constitutional liberties when they transcend the boundaries constituted by mutually beneficial contracting with capitalist employers to actually enter employment. For example, employees lack liberties to engage in free speech (for a good account on the absence of free speech in capitalist employment, see Michael Dolgow, "Where Free Speech Goes to Die: The Workplace," in Bloommberg Businessweek (3 Aug 2012, at: http://www.businessweek.com/articles/2012-08-03/where-free-speech-goes-to-die-the-workplace). Such deprivations of free speech liberties are readily apparent in on site workplaces, where employees lack the right to advocate particular causes not supported by employers and not specifically protected by labor laws ( under certain conditions, speech involving "concerted activities" for the purpose of workers' "mutual aid and protection," explicitly concerning but not necessarily limited to union organizing or contract negotiations, is protected under section 7 of NLRA, see Kate E. Andrias (2003), "A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections," Yale Law Journal, Vol. 112, no. 8, 2415-2463 (ref: footnote 17, 2420), at: http://www.yalelawjournal.org/note/a-robust-public-debate-realizing-free-speech-in-workplace-representation-elections). Employers can restrict the free speech of employers in the confines of the workplace under most circumstances, and, under certain circumstances, especially involving discriminatory speech, employers may have a legal obligation to discipline or discharge workers for particular acts of expression if only to guard against civil liability for violation of anti-discrimination laws committed by employees.
On the other hand, the role of information technology in spatially and temporally redistributing the workplace and, even more so, in generating an explosion of social media, enabling individuals, like me, to produce and publish, for open online distribution, social and political opinions that may contradict those of an employer introduces potentially intractable complications in the exercise of free speech by individuals. It might, for example, be conceivable to spatially and temporally extend the capacity of an employer to police the free speech of employees to spaces and times that do not coincide with traditional conceptions of the workplace. However, when such extensions occur, especially when working practices become flexibly entertwined with non-work, boundary issues, pertinent to the exercise of individual free speech, make it difficult to disentangle the liberties of individuals in non-work time and space from the constrained liberties of employees representing the interests of a capitalist employer.
Beyond such entanglements, we have the further issue of at will employment, as the predominant Common law institution governing American labor markets. At will employees enjoy tenure within their occupational relationship with an employer strictly at the employer's pleasure, implying that an employee can be discharged at any time, with or without prejudicial cause. Taking into account at will employment as the institution characterizing most private sector labor market contracts in the U.S., not otherwise structured by a collective bargaining agreement specifying particular procedures required for the dismissal of employees, it is entirely conceivable that acts of free speech by a free private individual conducted entirely outside of the workplace and not otherwise associated in any way with the individual's employer, generating tangible, published materials contradicting the social or political beliefs of the employer, may contribute to individual's dismissal from the workplace as an employee. The conclusion here should be fairly clear: as a condition of employment, free laborers may be compelled to cede their free speech liberties in toto, to the extent that their expressions might contradict the opinions of their capitalist employer. As such, the vast of expansion of electronic social media in recent years has produced the contradictory result that, for a vast majority of working Americans, the First Amendment protection of free speech may disappear entirely, to the extent that employees mean to keep their jobs and their livelihoods!
Tuesday, July 22, 2014
MH17, the State of the Conflict over Donetsk and Lugansk, and the Peculiarity of Stephen Cohen
Having reached what I believe will be an interesting juncture in my extended comments on Burwell v. Hobby Lobby, I am going to take a pause to reflect back on the problem of Ukraine, in light of the apparent shooting down of Malaysian Airlines Flight MH17 some 25 miles west of Ukraine's border with the Russian Federation. In this regard, I am going to reiterate (with a vengeance!) my relative ignorance on circumstances in eastern Ukraine that might have led to downing of this airliner. As such, I do not know who to believe in the conflicting assessments of blame that are being issued by the Obama administration, the Ukrainian Poroshenko government, the United Russia government of Putin, and, now, the rebel leadership (such as it is) of the "People's Republic of Donetsk." Part of what has been complicating assessments for me have been the efforts of Stephen Cohen, Professor Emeritis in Russian history and an expert on Stalinism from Princeton and New York University, to interject what, in my view, appears to be a very plausible argument concerning the use of force against rebels in built-up urban areas of the Don basin by the Ukrainian government, in its project to regain control of Donetsk and Lugansk oblasts from pro-Russian militias, and the impact of such tactics in creating an environment in which 298 passengers and crew from countries not otherwise involved in the conflict could have their lives taken from them. This post will seek, very briefly, to advance what I think I may actually know about the situation and, not incidentally, comment on the peculiar nature of media coverage in a site of geopolitical importance, contributing to my larger frustration about not knowing, among divergent voices, who to believe.
A Synopsis: What Seems Reasonably Clear about Ukraine
On June 30, a ten-day long, sporadically observed, cease-fire between the Ukrainian government and pro-Russian militias in Donetsk and Lugansk oblasts ended, despite the best efforts of the French, German, and Russian governments to secure an extension. Since then, pro-Russian militias surrendered the previously held stronghold of Slovyansk, digging in more resolutely in Donetsk against anticipated assaults by Ukrainian government forces (see Carol J. Williams, "Ukraine cease-fire ends with little headway in effort to broker peace," in Los Angeles Times (30 June 2014), at: http://www.latimes.com/world/europe/la-fg-ukraine-russia-peace-efforts-20140630-story.html). In anticipation of the end of the cease-fire, substantial numbers of civilians from targeted areas of the Don basin fled their homes, in many cases seeking the safety of the bordering Russian oblast of Rostov. Apparently, according to U.N. sources, some 160,000 civilians have fled Donetsk and Lugansk oblasts over the last few months, with 50,000 seeking the safety in other parts of Ukraine (see Hal Foster, "Thousands of refugees flee fighting in east Ukraine," in USA Today (2 July 2014), at: http://www.usatoday.com/story/news/world/2014/07/02/ukraine-war-refugees/11927955/). Moreover, since the end of the cease-fire, the nature of the struggle over remaining militia strongholds appears to have accentuated the role of indirect fire (i.e. mortar and heavy artillery), in conjuction with the use of air power (i.e. ground attack by fighter jets and attack helicopters) by the Ukrainian government. The war between Kiev and pro-Russian militias is increasingly being fought out by forces in tanks, with heavy artillery, supported on the Ukrainian side by ground attack aircraft and attack helicopters. Hence, the rise in civilian casualties and flow of refugees from contested areas.
Emphatically, the use of air power by the Ukrainian government explicitly introduces a dilemma for pro-Russian forces in the Don basin. If they are not going to surrender their defenses and sue for peace in their struggle with Kiev, then they must procure Russian military assistance to serve as a counterbalance against the government's use of air power. For the Putin government, to the extent that it is still aiding pro-Russian militias, two options are available. The Russian Federation can intervene directly with air interceptors to establish air superiority over Donetsk and Lugansk. However, this option really is not on the table because such an intervention must become immediately clear to the rest of the world, including the U.S. and EU - aircraft taking off and landing from Russian air force bases in areas inside the Russian Federation implies a direct intervention by a third party into a civil war between Ukrainians. It is an open invitation for the West to impose a more stringent regime of economic sanctions against Russia, even if much of Europe knows that this is against their short term economic (energy market) interests. The other option is for Russia to increase the number and sophistication of ground-based anti-aircraft systems, to include both man-portable (i.e. shoulder-fired) missiles capable of engaging, in particular, with rotary-wing weapons platforms and diverse vehicle-mounted systems, capable of engaging a range of different types of aerial targets at different altitudes and different speeds. I have some familiarity from U.S. military training with older generations of Soviet-era surface to air weapons, particular the SA-2 Guideline and the SA-6 Gainful (integrated w/Straight Flush radar system - missiles are radar guided to targets rather than heat-seeking). I am not as familiar with the SA-11 Gadfly/SA-17 Grizzly (the Бук weapon systems - another radar-guided system), apparently the technological successor to the SA-6 Gainful, a medium altitude, high-speed anti-aircraft system designed to target higher-speed interceptor aircraft.
Both SA-6 and SA-11/SA-17 are sophisticated, track-mounted, radar-integrated systems. It goes without saying that it takes skilled personnel to operate a system as technologically advanced as either SA-6 or SA-11/SA-17. I have never read emissions from, say, a Straight Flush targeting radar. I do not know how easy or difficult it is to discern the differences between a military transport aircraft and a commercial airliner. I imagine it must be much easier to identify a propeller-driven crop duster or a supersonic fighter jet. Moreover, it is (or was) apparently the case that the airspace above the Don basin is a heavily traveled corridor for commercial aircraft between Europe and South/Southeast Asia. I can imagine that placing a sophisticated surface to air missile system into the hands of crews with tangible quantities of training but little practical battlefield experience in a tense environment, characterized by significant enemy employment of both air transports and fighter aircraft, might be a recipe for disaster. Apparently it was.
What I Do Not Know, But Can Imagine, Concerning the Downing of MH17 and Its Relationship to the Conflict in Ukraine
To be quite succinct, I think I get the circumstances that lead us into a catastrophic civil air disaster in relation to the military confrontation in the eastern oblasts of Ukraine. Being an irritating Althusserian-Marxist overdeterminist, I cannot extract this event from its larger context, involving the renewed offensive of the Ukrainian government to regain control of the Don basin from pro-Russian militias and the aggressive use of air power by Kiev to achieve its military objectives. Such tactics were bound to produce a response from the other side, especially if Russian authorities on the other side of the frontier were faced with an influx of refugees decrying the carnage that they had left when they abandoned their homes to seek shelter! I have little doubt that SA-6 and/or SA-11/SA-17 systems quietly made their way across the border, accompanied by diverse shoulder-fired surface to air weapons, mothballed surplus T-64 main battle tanks, antiquated 122mm howitzers, and diverse mortars. Whatever Putin could help out with without being explicitly noticed by the EU and U.S., he was going to send. And, in the case of the SA-6 and SA-11/SA-17 batteries, he was obviously going to send trained personnel (i.e "military advisors") along for the ride. Having said that, war is obviously an extremely peculiar environment, even for trained military personnel. As someone who used to inhabit one end of the gun within the U.S. military, albeit never in a wartime situation, I can imagine the stress and uncertainty experienced by the men in the trenches, even when those trenches are manifest in the padded seats of a tracked radar surveillance vehicle, operating in conjunction with an SA-11/SA-17 battery.
Apparently there was some online bragging about having shot down what was assumed to have been a military target last Thursday. Again, I can understand, especially among individuals, both within the pro-Russian militias and among clandestine Russian military forces engaged in the Ukrainian conflict inside Donetsk and/or Lugansk, pressed with the responsibility to fend off the air forces of the Kiev government. They got one! It attests to the single-mindedness of military personnel (professionals as much as amateurs) in doing their jobs and, further, attests to the overall tragic and insane stupidity of war, per se!!
To these ends, I would inquire what the hell international aeronautical authorities were thinking in allowing civilian passenger aircraft to fly over a war zone in which both sides should have been assumed to be in possession of surface-to-air weapons capable of taking down medium to high altitude aircraft. The justification that Russian authorities should not have been supplying surface-to air weapons is not a valid excuse if the Ukrainian air force was actively engaged in aerial bombardment of rebel-occupied urban areas of Donetsk and Lugansk. Military experts in the U.S., especially, should have known perfectly well that surface-to-air technologies capable of taking down high-altitude aircraft were going to find their way into the conflict from Russia. At least some of the blame for the MH17 disaster has to be placed at the feet of ICAO and national level aeronautical authorities for not recognizing that eastern Ukraine was a dangerous place to send civilian airliners.
With all this in mind, I am going to acknowledge that I hold some sympathy for pro-Russian groups in the Don basin, especially recognizing the longer history of the region predating the Twentieth century. If the democratic principle enjoys any merit, then Kiev needs to appreciate that majoritarian consensus in the Don basin may be against it, as it proceeds into closer integration with Europe, even if such a move is in the long term interests of the entire region. I do not think that this means that the entire urban agglomeration of the Don basin wants to pick up roots and join the Russian Federation. On the other hand, I do think that the populations here want some fair consideration of what they conceive as their short term and long term interests, being a declining industrial region in historical association with Russia. As such, notwithstanding my agreement with such an unsavory figure as Vladimir Putin, I support the idea of Ukrainian federation with some greater degree of regional autonomy for the oblasts of the Don basin, in the hope that such an accomodation will bring peace to the larger country. Moreover, I think that the U.S. and EU have gone far enough in punishing the Russian Federation through sanctions, at least without any palpable suggestion that the internal politics of Ukraine (including the views of populations living in Donetsk and Lugansk) should be taken into account in the broader resolution of conflict within Ukraine. I have made the point previously that I believe a unitary Ukrainian regime will not survive the current crisis, and I continue to hold this position, if only because I regard such a regime as contrary to the broader principle of democratic sovereignty.
Critically, the world should be outraged about what has transpired in eastern Ukraine over the passed week. On the other hand, we need to acknowledge all of the players whose actions led us to the point at which a missile battery crew, probably staffed with Russian military personnel operating secretively on the behalf of pro-Russian militias in Donetsk and Lugansk, mistakenly targeted a commercial airliner and opened fire. If the Poroshenko government had been a little more serious about engaging in peace negotiations with pro-Russian groups in the closing weeks of June and if the Angela Merkel and François Hollande were a bit more emphatic in pointing out to Putin the potential economic consequences of continuing clandestine Russian military interventions in eastern Ukraine and if the Obama administration had done something tangible to at least acknowledge that there were people living in Donetsk and Lugansk who had legitimate interests in the future of their region even to the extent that they disagreed with Kiev, then maybe the bodies of victims would not be on their way to Karkhiv, en route to the Netherlands for identification today. This is not simply a testament to the problematic character of Russian intervention on the behalf of pro-Russian populations in the eastern Ukrainian oblasts, but also a testament to the fact that the Ukrainian government in Kiev needs to figure out some way to solve its Russian problem in the Don basin peacefully, even if that means that Poroshenko and all of the less liberal, ethnically closed-minded Ukrainian nationalists to his right do not get to have their way unilaterally in determining the future economic and cultural development of the Don basin.
Concerning the Strange Trajectory of Stephen Cohen's Partisan Position on Russia
As an American Marxist in the progressive community of post-structuralist critics of the old Soviet Union, I feel somewhat confident that I know people who probably know Stephen Cohen, although I do not know him myself. Moreover, I cannot remember having sat down to read any of his accounts on the former Soviet Union, the horrors of Stalinism, or the potentiality apparent in the figure of Nikolai Bukharin (the hero of the CPSU right wing, supporting the NEP before the onset of agricultural collectivization and the First Five Year Plan at the end of the 1920s), although I feel rather confident that, at this very moment, one of Stephen Cohen's books is sitting comfortably, in a cardboard box that formerly housed cryovac beef chuck, in my storage box in Hatfield, Massachusetts. With this in mind, the only thing that I really have to go on in evaluating the positions taken by Cohen in regard to the conflict in Ukraine has been a series of interviews with various news sources and articles, some published in the left-liberal American weekly The Nation, edited by Cohen's wife Katrina vanden Heuvel.
At the outset, notwithstanding Cohen's stature as an historical scholar of the Soviet Union, I find his present positions on Russian internal politics and foreign policy emphatically peculiar, in the sense that I cannot understand how someone who, like myself, seems to hold so much fascination in the pre-Stalinist Bolshevik legacy, acknowledging its faults, could sympathize so much with the current path taken by the Russian Federation under Putin. Emblematic of Cohen's hyperbolic defense of Putin, United Russia, and the current course of the Russian Federation is an article, in, where else, The Nation (11 February 2014), "Distoring Russia: How the American Media Misrepresent Putin, Sochi, and Ukraine" (at: http://www.thenation.com/article/178344/distorting-russia). This article stands for itself as an extrapolation of unsubstantiated claims that the American media is out to tar and feather Vladimir Putin and everything that he has accomplished for Russia since the tragic dismemberment of the Soviet Union and the corrupt, self-destructive regime of Boris Yeltsin. I would confess that I did not entirely connect with the underlying theme of Cohen's criticism in this article until I read another piece on The Daily Beast by Cathy Young (see "Meet Stephen F. Cohen: Vladimir Putin's Best Friend in the American Media," on The Daily Beast (16 March 2014), at: http://www.thedailybeast.com/articles/2014/03/16/meet-stephen-f-cohen-vladimir-putin-s-best-friend-in-the-american-media.html#). It is as if Cohen, the great Soviet-era scholar that he is, maintains a personal animus against the forces that he believes accomplished the death of "already-existing socialism," and locates some vindication in the rise of United Russia and Putin, as the saviors of a project of Soviet resurrection! Sadly, Cohen needs to undertake some serious soul searching on the broader partisan objectives of United Russia, its evolving relationship with the Russian nationalist far right, its unvarnished brutality against ethnic minorities, especially in the North Caucasus region, and its willingness to contravene international norms in conflict resolution by intervening militarily in internal disputes, first, in Georgia and, now, in Ukraine. Off-handedly, it is a little shocking that Cohen's wife is giving him a free hand to utilize the venerable publication with which she is associated to pander to the line of United Russia for a left-liberal American audience that might otherwise know better!
Having said all of this, I want to acknowledge that, having watched Cohen on CNN (Fareed Zakaria's GPS broadcast) last Sunday, he makes a valid point that the American media is ignoring the fact that civilian populations in eastern Ukraine are being subjected to the full brutality of war even as select American and international news sources are going out of their way to point out the humanitarian crisis that Israel is in the process of generating militarily out of the Gaza Strip. For my part, I should note the fact that I need to sit down and enunciate a position against the brutality that Israel is inflicting on civilians in Gaza (I have an excuse; I work 46 hours a week doing something other than writing blog posts!!). Cohen is quite correct that the American media is not presenting both sides of the story in Ukraine. On the other hand, I am not entirely certain that the other side of the story in Donetsk and Lugansk is Putin's story or that it can adequately be articulated by parties within the Russian Federation. If I can agree, in principle, that a majority of the population in the Don basin was not enthusiastic about the Euromaiden revolution and that, moreover, a majority would similarly favor some kind of federalization of government in Ukraine, it also seems, from what I have been able to glean from diverse accounts on the conflict in Ukraine, that a majority of this population does not want to suffer annexation by the Russian Federation. Succinctly, I do not think that anyone is truthfully coming to terms with the interests, needs, desires, and hopes for the future of the majority of the population in the urban agglomeration of the lower Don. Like Cohen (apparently), I am confident that the post-Euromaiden government in Kiev is not about to give serious attention to what will be best, at least in the short run, for this region. In this manner, the stakes in the current conflict over Donetsk and Lugansk concern the capacity of the Poroshenko government in Kiev to exercise its will against autonomous self-determination of the course of development in these oblasts by the populations who are living there (and who are increasingly being driven out by armed violence by both the government in Kiev and by armed pro-Russian militias).
A Synopsis: What Seems Reasonably Clear about Ukraine
On June 30, a ten-day long, sporadically observed, cease-fire between the Ukrainian government and pro-Russian militias in Donetsk and Lugansk oblasts ended, despite the best efforts of the French, German, and Russian governments to secure an extension. Since then, pro-Russian militias surrendered the previously held stronghold of Slovyansk, digging in more resolutely in Donetsk against anticipated assaults by Ukrainian government forces (see Carol J. Williams, "Ukraine cease-fire ends with little headway in effort to broker peace," in Los Angeles Times (30 June 2014), at: http://www.latimes.com/world/europe/la-fg-ukraine-russia-peace-efforts-20140630-story.html). In anticipation of the end of the cease-fire, substantial numbers of civilians from targeted areas of the Don basin fled their homes, in many cases seeking the safety of the bordering Russian oblast of Rostov. Apparently, according to U.N. sources, some 160,000 civilians have fled Donetsk and Lugansk oblasts over the last few months, with 50,000 seeking the safety in other parts of Ukraine (see Hal Foster, "Thousands of refugees flee fighting in east Ukraine," in USA Today (2 July 2014), at: http://www.usatoday.com/story/news/world/2014/07/02/ukraine-war-refugees/11927955/). Moreover, since the end of the cease-fire, the nature of the struggle over remaining militia strongholds appears to have accentuated the role of indirect fire (i.e. mortar and heavy artillery), in conjuction with the use of air power (i.e. ground attack by fighter jets and attack helicopters) by the Ukrainian government. The war between Kiev and pro-Russian militias is increasingly being fought out by forces in tanks, with heavy artillery, supported on the Ukrainian side by ground attack aircraft and attack helicopters. Hence, the rise in civilian casualties and flow of refugees from contested areas.
Emphatically, the use of air power by the Ukrainian government explicitly introduces a dilemma for pro-Russian forces in the Don basin. If they are not going to surrender their defenses and sue for peace in their struggle with Kiev, then they must procure Russian military assistance to serve as a counterbalance against the government's use of air power. For the Putin government, to the extent that it is still aiding pro-Russian militias, two options are available. The Russian Federation can intervene directly with air interceptors to establish air superiority over Donetsk and Lugansk. However, this option really is not on the table because such an intervention must become immediately clear to the rest of the world, including the U.S. and EU - aircraft taking off and landing from Russian air force bases in areas inside the Russian Federation implies a direct intervention by a third party into a civil war between Ukrainians. It is an open invitation for the West to impose a more stringent regime of economic sanctions against Russia, even if much of Europe knows that this is against their short term economic (energy market) interests. The other option is for Russia to increase the number and sophistication of ground-based anti-aircraft systems, to include both man-portable (i.e. shoulder-fired) missiles capable of engaging, in particular, with rotary-wing weapons platforms and diverse vehicle-mounted systems, capable of engaging a range of different types of aerial targets at different altitudes and different speeds. I have some familiarity from U.S. military training with older generations of Soviet-era surface to air weapons, particular the SA-2 Guideline and the SA-6 Gainful (integrated w/Straight Flush radar system - missiles are radar guided to targets rather than heat-seeking). I am not as familiar with the SA-11 Gadfly/SA-17 Grizzly (the Бук weapon systems - another radar-guided system), apparently the technological successor to the SA-6 Gainful, a medium altitude, high-speed anti-aircraft system designed to target higher-speed interceptor aircraft.
Both SA-6 and SA-11/SA-17 are sophisticated, track-mounted, radar-integrated systems. It goes without saying that it takes skilled personnel to operate a system as technologically advanced as either SA-6 or SA-11/SA-17. I have never read emissions from, say, a Straight Flush targeting radar. I do not know how easy or difficult it is to discern the differences between a military transport aircraft and a commercial airliner. I imagine it must be much easier to identify a propeller-driven crop duster or a supersonic fighter jet. Moreover, it is (or was) apparently the case that the airspace above the Don basin is a heavily traveled corridor for commercial aircraft between Europe and South/Southeast Asia. I can imagine that placing a sophisticated surface to air missile system into the hands of crews with tangible quantities of training but little practical battlefield experience in a tense environment, characterized by significant enemy employment of both air transports and fighter aircraft, might be a recipe for disaster. Apparently it was.
What I Do Not Know, But Can Imagine, Concerning the Downing of MH17 and Its Relationship to the Conflict in Ukraine
To be quite succinct, I think I get the circumstances that lead us into a catastrophic civil air disaster in relation to the military confrontation in the eastern oblasts of Ukraine. Being an irritating Althusserian-Marxist overdeterminist, I cannot extract this event from its larger context, involving the renewed offensive of the Ukrainian government to regain control of the Don basin from pro-Russian militias and the aggressive use of air power by Kiev to achieve its military objectives. Such tactics were bound to produce a response from the other side, especially if Russian authorities on the other side of the frontier were faced with an influx of refugees decrying the carnage that they had left when they abandoned their homes to seek shelter! I have little doubt that SA-6 and/or SA-11/SA-17 systems quietly made their way across the border, accompanied by diverse shoulder-fired surface to air weapons, mothballed surplus T-64 main battle tanks, antiquated 122mm howitzers, and diverse mortars. Whatever Putin could help out with without being explicitly noticed by the EU and U.S., he was going to send. And, in the case of the SA-6 and SA-11/SA-17 batteries, he was obviously going to send trained personnel (i.e "military advisors") along for the ride. Having said that, war is obviously an extremely peculiar environment, even for trained military personnel. As someone who used to inhabit one end of the gun within the U.S. military, albeit never in a wartime situation, I can imagine the stress and uncertainty experienced by the men in the trenches, even when those trenches are manifest in the padded seats of a tracked radar surveillance vehicle, operating in conjunction with an SA-11/SA-17 battery.
Apparently there was some online bragging about having shot down what was assumed to have been a military target last Thursday. Again, I can understand, especially among individuals, both within the pro-Russian militias and among clandestine Russian military forces engaged in the Ukrainian conflict inside Donetsk and/or Lugansk, pressed with the responsibility to fend off the air forces of the Kiev government. They got one! It attests to the single-mindedness of military personnel (professionals as much as amateurs) in doing their jobs and, further, attests to the overall tragic and insane stupidity of war, per se!!
To these ends, I would inquire what the hell international aeronautical authorities were thinking in allowing civilian passenger aircraft to fly over a war zone in which both sides should have been assumed to be in possession of surface-to-air weapons capable of taking down medium to high altitude aircraft. The justification that Russian authorities should not have been supplying surface-to air weapons is not a valid excuse if the Ukrainian air force was actively engaged in aerial bombardment of rebel-occupied urban areas of Donetsk and Lugansk. Military experts in the U.S., especially, should have known perfectly well that surface-to-air technologies capable of taking down high-altitude aircraft were going to find their way into the conflict from Russia. At least some of the blame for the MH17 disaster has to be placed at the feet of ICAO and national level aeronautical authorities for not recognizing that eastern Ukraine was a dangerous place to send civilian airliners.
With all this in mind, I am going to acknowledge that I hold some sympathy for pro-Russian groups in the Don basin, especially recognizing the longer history of the region predating the Twentieth century. If the democratic principle enjoys any merit, then Kiev needs to appreciate that majoritarian consensus in the Don basin may be against it, as it proceeds into closer integration with Europe, even if such a move is in the long term interests of the entire region. I do not think that this means that the entire urban agglomeration of the Don basin wants to pick up roots and join the Russian Federation. On the other hand, I do think that the populations here want some fair consideration of what they conceive as their short term and long term interests, being a declining industrial region in historical association with Russia. As such, notwithstanding my agreement with such an unsavory figure as Vladimir Putin, I support the idea of Ukrainian federation with some greater degree of regional autonomy for the oblasts of the Don basin, in the hope that such an accomodation will bring peace to the larger country. Moreover, I think that the U.S. and EU have gone far enough in punishing the Russian Federation through sanctions, at least without any palpable suggestion that the internal politics of Ukraine (including the views of populations living in Donetsk and Lugansk) should be taken into account in the broader resolution of conflict within Ukraine. I have made the point previously that I believe a unitary Ukrainian regime will not survive the current crisis, and I continue to hold this position, if only because I regard such a regime as contrary to the broader principle of democratic sovereignty.
Critically, the world should be outraged about what has transpired in eastern Ukraine over the passed week. On the other hand, we need to acknowledge all of the players whose actions led us to the point at which a missile battery crew, probably staffed with Russian military personnel operating secretively on the behalf of pro-Russian militias in Donetsk and Lugansk, mistakenly targeted a commercial airliner and opened fire. If the Poroshenko government had been a little more serious about engaging in peace negotiations with pro-Russian groups in the closing weeks of June and if the Angela Merkel and François Hollande were a bit more emphatic in pointing out to Putin the potential economic consequences of continuing clandestine Russian military interventions in eastern Ukraine and if the Obama administration had done something tangible to at least acknowledge that there were people living in Donetsk and Lugansk who had legitimate interests in the future of their region even to the extent that they disagreed with Kiev, then maybe the bodies of victims would not be on their way to Karkhiv, en route to the Netherlands for identification today. This is not simply a testament to the problematic character of Russian intervention on the behalf of pro-Russian populations in the eastern Ukrainian oblasts, but also a testament to the fact that the Ukrainian government in Kiev needs to figure out some way to solve its Russian problem in the Don basin peacefully, even if that means that Poroshenko and all of the less liberal, ethnically closed-minded Ukrainian nationalists to his right do not get to have their way unilaterally in determining the future economic and cultural development of the Don basin.
Concerning the Strange Trajectory of Stephen Cohen's Partisan Position on Russia
As an American Marxist in the progressive community of post-structuralist critics of the old Soviet Union, I feel somewhat confident that I know people who probably know Stephen Cohen, although I do not know him myself. Moreover, I cannot remember having sat down to read any of his accounts on the former Soviet Union, the horrors of Stalinism, or the potentiality apparent in the figure of Nikolai Bukharin (the hero of the CPSU right wing, supporting the NEP before the onset of agricultural collectivization and the First Five Year Plan at the end of the 1920s), although I feel rather confident that, at this very moment, one of Stephen Cohen's books is sitting comfortably, in a cardboard box that formerly housed cryovac beef chuck, in my storage box in Hatfield, Massachusetts. With this in mind, the only thing that I really have to go on in evaluating the positions taken by Cohen in regard to the conflict in Ukraine has been a series of interviews with various news sources and articles, some published in the left-liberal American weekly The Nation, edited by Cohen's wife Katrina vanden Heuvel.
At the outset, notwithstanding Cohen's stature as an historical scholar of the Soviet Union, I find his present positions on Russian internal politics and foreign policy emphatically peculiar, in the sense that I cannot understand how someone who, like myself, seems to hold so much fascination in the pre-Stalinist Bolshevik legacy, acknowledging its faults, could sympathize so much with the current path taken by the Russian Federation under Putin. Emblematic of Cohen's hyperbolic defense of Putin, United Russia, and the current course of the Russian Federation is an article, in, where else, The Nation (11 February 2014), "Distoring Russia: How the American Media Misrepresent Putin, Sochi, and Ukraine" (at: http://www.thenation.com/article/178344/distorting-russia). This article stands for itself as an extrapolation of unsubstantiated claims that the American media is out to tar and feather Vladimir Putin and everything that he has accomplished for Russia since the tragic dismemberment of the Soviet Union and the corrupt, self-destructive regime of Boris Yeltsin. I would confess that I did not entirely connect with the underlying theme of Cohen's criticism in this article until I read another piece on The Daily Beast by Cathy Young (see "Meet Stephen F. Cohen: Vladimir Putin's Best Friend in the American Media," on The Daily Beast (16 March 2014), at: http://www.thedailybeast.com/articles/2014/03/16/meet-stephen-f-cohen-vladimir-putin-s-best-friend-in-the-american-media.html#). It is as if Cohen, the great Soviet-era scholar that he is, maintains a personal animus against the forces that he believes accomplished the death of "already-existing socialism," and locates some vindication in the rise of United Russia and Putin, as the saviors of a project of Soviet resurrection! Sadly, Cohen needs to undertake some serious soul searching on the broader partisan objectives of United Russia, its evolving relationship with the Russian nationalist far right, its unvarnished brutality against ethnic minorities, especially in the North Caucasus region, and its willingness to contravene international norms in conflict resolution by intervening militarily in internal disputes, first, in Georgia and, now, in Ukraine. Off-handedly, it is a little shocking that Cohen's wife is giving him a free hand to utilize the venerable publication with which she is associated to pander to the line of United Russia for a left-liberal American audience that might otherwise know better!
Having said all of this, I want to acknowledge that, having watched Cohen on CNN (Fareed Zakaria's GPS broadcast) last Sunday, he makes a valid point that the American media is ignoring the fact that civilian populations in eastern Ukraine are being subjected to the full brutality of war even as select American and international news sources are going out of their way to point out the humanitarian crisis that Israel is in the process of generating militarily out of the Gaza Strip. For my part, I should note the fact that I need to sit down and enunciate a position against the brutality that Israel is inflicting on civilians in Gaza (I have an excuse; I work 46 hours a week doing something other than writing blog posts!!). Cohen is quite correct that the American media is not presenting both sides of the story in Ukraine. On the other hand, I am not entirely certain that the other side of the story in Donetsk and Lugansk is Putin's story or that it can adequately be articulated by parties within the Russian Federation. If I can agree, in principle, that a majority of the population in the Don basin was not enthusiastic about the Euromaiden revolution and that, moreover, a majority would similarly favor some kind of federalization of government in Ukraine, it also seems, from what I have been able to glean from diverse accounts on the conflict in Ukraine, that a majority of this population does not want to suffer annexation by the Russian Federation. Succinctly, I do not think that anyone is truthfully coming to terms with the interests, needs, desires, and hopes for the future of the majority of the population in the urban agglomeration of the lower Don. Like Cohen (apparently), I am confident that the post-Euromaiden government in Kiev is not about to give serious attention to what will be best, at least in the short run, for this region. In this manner, the stakes in the current conflict over Donetsk and Lugansk concern the capacity of the Poroshenko government in Kiev to exercise its will against autonomous self-determination of the course of development in these oblasts by the populations who are living there (and who are increasingly being driven out by armed violence by both the government in Kiev and by armed pro-Russian militias).
Sunday, July 20, 2014
On Burwell v. Hobby Lobby Stores Inc. et al. II
2. The expansion of the "fictive personhood" of privately-held corporations to include privileges to freely exercise religion under the First Amendment is no more problematic than the extension of free speech privileges involved in the Citizens United (558 U.S. 310 (2010)) decision. Both expansions in the legal standing of corporations need to be appraised in relation to the larger problems posed by balancing First Amendment privileges against diverse alternative public policy agendas (e.g. universal access to minimal health care coverage, maintenance of fair, transparent electoral institutions, etc.).
Numerous analysts of the Hobby Lobby decision have sought to emphasize the problematic character of an expansion of the privileges attendant to corporate "fictive" personhood. In point of fact, this question constitutes critical sections of both Justice Alito's majority opinion and Justice Ginsberg's dissent. Several distinct question need to be sorted out when addressing the issues involved in the redefinition of the rights and privileges of privately-held corporations as artificial persons. First, is it relevant that Hobby Lobby Stores, Conestoga Wood Specialty Products, and other corporations are for-profit enterprises when assessing what rights and privileges inhere to their status as "persons?" Second, do fundamental differences exist between for-profit, privately-held corporations and non-corporate, sole proprietary or partnership firms with respect to the assessment of rights and privileges, particularly with regard to the free exercise of religion under the First Amendment, augmented by RFRA? Where do publicly-held corporations fit within this broader landscape in the aftermath of the Hobby Lobby decision? Finally, what role might the authorizing governmental entities, chartering limited-liability corporations exercise in reigning in the process of rights extension to corporate entities? That is to say, if a corporation is, at its heart, a compact/contract existing between a state and a set of private investors, establishing, as a consequence, the foundation of an artificial person, then might states enjoy some capacity to alter the process of chartering corporate entities to reorganize or limit the extension of free exercise privileges in existing or newly formed corporate entities?
In arguing this case, the Obama administration/Department of Health and Human Services Secretaries Sebelius and Burwell made critical distinctions between the corporate firms engaged in this case relative to non-profit corporations and, specifically, non-profits motivated by religious beliefs, even to the extent that the work of such organizations does not involve traditional ecclesiastical or liturgical functions (e.g. health care systems operated by religious denominations). Such organizations had already been supplied with a waiver on the provision of contraceptive coverage under the ACA, through which the cost of providing contraceptive services/products would be charged to health insurers (as a lower cost alternative for insurers to paying for prenatal care or for an abortion procedure to deal with an unplanned pregnancy). Hobby Lobby and Conestoga, by contrast, are for-profit corporations, not charged with a religiously oriented mission per se (unless profit maximization can be deemed a religious pursuit). In this respect, there is a clear distinction involved here, although I am not sure how much weight should be assigned to the distinction. Ultimately, its relevance will come if and when private health insurers balk at the idea of paying for contraceptives for employees of a for-profit corporation when the corporation refuses to pay for such coverage on religious grounds. The other alternative resolution to such a problem might be for the federal government to pay for such coverage directly, but this raises fiscal issues that would have to be resolved in the halls of Congress where, at this time, complete dysfunction reigns!
Approaching the legal/constitutional contours on the question of for-profit corporate status, Justice Alito relies on the free exercise claim entertained by the Warren Court in Braunfeld v. Brown (366 U.S. 599 (1961)) for the Orthodox Jewish owners of non-corporate, for-profit businesses challenging Sunday closure laws in Pennsylvania. He, further, alludes to Gallagher v. Crown Kosher Super Market of Massachusetts (366 U.S. 617 (1961)), involving an incorporated, for-profit food store in Springfield, Massachusetts, challenging Massachusetts' Sunday closure laws. In the latter case, the Warren Court relied on the rationality-based grounds of its Braunfeld decision to dismiss the challenge to state Sunday closure laws. The plurality in the Gallagher decision, on the other hand, never approaches the question of standing for an incorporated for-profit business in making free exercise claims. For Justice Alito, this singular point is key - there is, emphatically, no precedent for dismissing the free exercise claims of a for-profit corporation because such entities lack standing to make such claims. In these terms, the well-reasoned dissent by Justice Ginsberg on Congressionally authorized religious accomodations in laws of general applicability notwithstanding, I cannot help but agree with the majority opinion. It does not follow that a manifest difference in the particular manner in which a religious-based exemption to contraceptive coverage may be resolved (to restore such coverage) should necessarily enforce a difference in the capacity of different business forms to invoke a claim on the free exercise of religion. The former condition simply means that it is going to be more difficult for the Obama administration and its Department of Health and Human Services to enforce a mandate for universal access to the most effective forms of birth control if it cannot persuasively make the case to insurers that it is in their best interests to pay for such coverage themselves.
The second question above, concerning differences between incorporated for-profit firms and unincorporated for-profit sole proprietorships and partnerships, is likewise dispelled by the Court majority as irrelevant for purposes of invoking a free exercise claim under RFRA and/or the First Amendment, per se. Here, again, Justice Alito relies on the precedent in Braunfeld, making the case that there is a precedent for recognizing free exercise claims from for-profit businesses. Moreover, the fact that the businesses concerned in Braunfeld lost their case before the Warren Court is irrelevant - the Court recognized that these business owners had the right to make a free exercise claim. The real question is whether the Court would similarly entertain a free exercise claim for a firm structured under state laws establishing limited civil liability to its officers, and, in this respect, Gallagher may afford a weak example, in which the Court did not explicitly determine that corporate enterprises lacked standing to make free exercise claims. Again, I cannot help but agree with Justice Alito's majority decision here.
A potential exists within the legal frameworks of incorporation at the state level to establish clear differences in the legal definition of artificial personhood constituted by the act of incorporating a business. In this sense, I will argue below that a potential may exist for withdrawing certain privileges from corporate business forms if state legislatures choose to redefine the corporation, as a compact/contract with the state. On the other hand, as traditionally understood through the lingering influence of English Common Law (e.g. Blackstone's Commentaries) and the legacy of existing state statutes on incorporation, the legal distinction between a firm that has incorporated and one that has not is strictly limited to the privileges of limited civil liability with respect to the personal property of corporate officers/owners/shareholders and liability for corporate taxation purposes. Neither of these areas strictly implicates the capacity of corporate owners/officers/shareholders to invoke a claim relative to free exercise of religion or, for that matter, relative to the exercise of free speech (i.e. capacity to contribute funds to advocate a political candidate or cause). A legal document of incorporation does not irrevocably transform a small business, run by polite, pious, and frugal hometown folks, into an evil corporate empire. There is a peculiar lapse of reasoning among critics of the Hobby Lobby decision who have chosen to make the expansion of privileges inherent to corporate personhood their battleground. They do not comprehend the overall lack of economic significance inherent to the corporate form as a legal specification, notwithstanding the various advantages for expanded capital accumulation inherent to the corporate form.
Before I move on to the argument that I believe critics of the majority opinion in the Hobby Lobby decision might mean to make (but have been unable to for diverse reasons), I want to speculate on two further issues regarding freedom of religion claims by corporate entities. First, is it theoretically possible that publicly-held corporations could make claims related to free exercise of religion? Relative to the Hobby Lobby decision, answering this question would constitute entirely new ground for the federal jurists. My answer, notwithstanding the complexities involved here, is "yes." Such a conclusion might reflect the distant fears of the Hobby Lobby decision's critics.
At stake here is the capacity of an organizational form to develop procedures in order to arrive at a democratic consensus on the moral and ethical precepts of the organization within its leadership. In this respect, the Court could not have ruled in favor of religious claims by the Hahns and the Greens in the Hobby Lobby case if it could not simultaneously conclude that the capacity to invoke free exercise claims rested inherently in the person of the corporation (i.e. in the hands of an artificial person, rather than in the real hands of the owners of the corporation, who could, under any circumstances, invoke free exercise claims as real persons). That is to say, the fact that the Hahns and the Greens opposed access to certain forms of birth control bore no relevance on the decision - it only mattered insofar as the Hahns and Greens could articulate such a position and contribute to the decisions on contraceptive coverage by the organization in accordance with the moral and ethical position of the organization, as an artificial person. As such, it does not really matter here that Hobby Lobby and Conestoga are closely held, private corporations, however much Justice Alito emphasizes this point in articulating the majority opinion. If artificial persons can invoke claims on the free exercise of religion here, then they can always invoke such claims, whether they are owned by a small handful of family members or by a small multitude of private investors, pension funds and other institutional investors, and a transient mass of day traders. The real difference is that the Greens as executives of Hobby Lobby do not need to call a meeting of the Board of Directors, solicit shareholder sentiment through a proxy vote, or weather the effects of shareholder discontent on stock prices (or a shareholder revolt against the Board) if their decision to act on their sincere and substantiated religious-based moral and ethical precepts does not conform to the general tenor of public opinion.
My final issue of concern in regard to the corporate form, as a state-sanctioned artificial person, involves the capacity of states, as licensing authorities for business entities embodying limited civil liability, to arrest the current judicial expansion of rights inhering to corporate personhood. Specifically, it would seem conceivable that state legislatures, concerned with the capacity of corporations to invoke free exercise claims or to exercise free speech by means of rampant partisan spending on elections, could amend their incorporation laws in order to specifically truncate the rights that corporations may claim under the U.S. Constitution. Such enactments would certainly raise a range of Constitutional issues, beginning with enforcement of the Equal Protection Clause of the Fourteenth Amendment against such actions by a state. Under current settled Constitutional jurisprudential standards, corporations enjoy equal protection under the laws, under the particular terms in which they are chartered by states. There may be a substantial amount of leeway here for state legislatures to craft legal standards for incorporation in order to define the particular rights and responsibilities of corporations, ensuring that such business entities can hold and alienate property, sue and be sued, and enter into contracts but denying to such entities the right to make political contributions or to object on religious grounds to particular public policies.
One point that seems emphatically clear on the possibilities for legislative truncation of the rights inhering corporate personhood is that such amendments at the state level cannot be retroactive - corporations that have already been chartered have entered into a legal compact/contract with a particular state for the purpose of exercising business with the blessings of the public. Going back to Dartmouth College v. Woodward (17 U.S. 518 (1819)), corporate charters cannot be amended at will by state legislatures. Moreover, given both the contemporary high fluidity of money capital and competition among states to house corporations through maintenance of liberal incorporation standards and lower or no corporate income taxes, it seems likely that state-level efforts to truncate corporate Constitutional rights may be strictly limited in their effects. Sadly, for all the advocates of a truncated conception of corporate personhood, there may be no easy answer on how to bring American corporations to heel.
In this regard, I will continue to argue that corporate personhood, as a legal manifestation with an increasingly prominent array of Constitutional rights/privileges, is not the real problem and, in any case, not the thing that is so viciously objectionable to advocates of an expanded array of reproductive health options for women under the ACA. Rather, as I suggested in the previous section of this post, we need to be vigilant against the efforts of both legislatures (e.g. RFRA passed by Congress) and federal jurists to subject public policy intitiatives that enjoy a strong democratic consensus to stricter scrutiny against particular Constitutional privileges of individuals. It matters little that a corporation enjoys a privilege to freely exercise religion unless we elevate free exercise privileges to such a degree that any valid claim of enfringement through a law or regulation of general applicability will force the government to prove that it is serving a compelling governmental interest and acting through the least intrusive means. A large part of the problem here, thus, continues to inhere to the particular ways in which free exercise privileges are being interpreted against the public policy initiatives of government.
Numerous analysts of the Hobby Lobby decision have sought to emphasize the problematic character of an expansion of the privileges attendant to corporate "fictive" personhood. In point of fact, this question constitutes critical sections of both Justice Alito's majority opinion and Justice Ginsberg's dissent. Several distinct question need to be sorted out when addressing the issues involved in the redefinition of the rights and privileges of privately-held corporations as artificial persons. First, is it relevant that Hobby Lobby Stores, Conestoga Wood Specialty Products, and other corporations are for-profit enterprises when assessing what rights and privileges inhere to their status as "persons?" Second, do fundamental differences exist between for-profit, privately-held corporations and non-corporate, sole proprietary or partnership firms with respect to the assessment of rights and privileges, particularly with regard to the free exercise of religion under the First Amendment, augmented by RFRA? Where do publicly-held corporations fit within this broader landscape in the aftermath of the Hobby Lobby decision? Finally, what role might the authorizing governmental entities, chartering limited-liability corporations exercise in reigning in the process of rights extension to corporate entities? That is to say, if a corporation is, at its heart, a compact/contract existing between a state and a set of private investors, establishing, as a consequence, the foundation of an artificial person, then might states enjoy some capacity to alter the process of chartering corporate entities to reorganize or limit the extension of free exercise privileges in existing or newly formed corporate entities?
In arguing this case, the Obama administration/Department of Health and Human Services Secretaries Sebelius and Burwell made critical distinctions between the corporate firms engaged in this case relative to non-profit corporations and, specifically, non-profits motivated by religious beliefs, even to the extent that the work of such organizations does not involve traditional ecclesiastical or liturgical functions (e.g. health care systems operated by religious denominations). Such organizations had already been supplied with a waiver on the provision of contraceptive coverage under the ACA, through which the cost of providing contraceptive services/products would be charged to health insurers (as a lower cost alternative for insurers to paying for prenatal care or for an abortion procedure to deal with an unplanned pregnancy). Hobby Lobby and Conestoga, by contrast, are for-profit corporations, not charged with a religiously oriented mission per se (unless profit maximization can be deemed a religious pursuit). In this respect, there is a clear distinction involved here, although I am not sure how much weight should be assigned to the distinction. Ultimately, its relevance will come if and when private health insurers balk at the idea of paying for contraceptives for employees of a for-profit corporation when the corporation refuses to pay for such coverage on religious grounds. The other alternative resolution to such a problem might be for the federal government to pay for such coverage directly, but this raises fiscal issues that would have to be resolved in the halls of Congress where, at this time, complete dysfunction reigns!
Approaching the legal/constitutional contours on the question of for-profit corporate status, Justice Alito relies on the free exercise claim entertained by the Warren Court in Braunfeld v. Brown (366 U.S. 599 (1961)) for the Orthodox Jewish owners of non-corporate, for-profit businesses challenging Sunday closure laws in Pennsylvania. He, further, alludes to Gallagher v. Crown Kosher Super Market of Massachusetts (366 U.S. 617 (1961)), involving an incorporated, for-profit food store in Springfield, Massachusetts, challenging Massachusetts' Sunday closure laws. In the latter case, the Warren Court relied on the rationality-based grounds of its Braunfeld decision to dismiss the challenge to state Sunday closure laws. The plurality in the Gallagher decision, on the other hand, never approaches the question of standing for an incorporated for-profit business in making free exercise claims. For Justice Alito, this singular point is key - there is, emphatically, no precedent for dismissing the free exercise claims of a for-profit corporation because such entities lack standing to make such claims. In these terms, the well-reasoned dissent by Justice Ginsberg on Congressionally authorized religious accomodations in laws of general applicability notwithstanding, I cannot help but agree with the majority opinion. It does not follow that a manifest difference in the particular manner in which a religious-based exemption to contraceptive coverage may be resolved (to restore such coverage) should necessarily enforce a difference in the capacity of different business forms to invoke a claim on the free exercise of religion. The former condition simply means that it is going to be more difficult for the Obama administration and its Department of Health and Human Services to enforce a mandate for universal access to the most effective forms of birth control if it cannot persuasively make the case to insurers that it is in their best interests to pay for such coverage themselves.
The second question above, concerning differences between incorporated for-profit firms and unincorporated for-profit sole proprietorships and partnerships, is likewise dispelled by the Court majority as irrelevant for purposes of invoking a free exercise claim under RFRA and/or the First Amendment, per se. Here, again, Justice Alito relies on the precedent in Braunfeld, making the case that there is a precedent for recognizing free exercise claims from for-profit businesses. Moreover, the fact that the businesses concerned in Braunfeld lost their case before the Warren Court is irrelevant - the Court recognized that these business owners had the right to make a free exercise claim. The real question is whether the Court would similarly entertain a free exercise claim for a firm structured under state laws establishing limited civil liability to its officers, and, in this respect, Gallagher may afford a weak example, in which the Court did not explicitly determine that corporate enterprises lacked standing to make free exercise claims. Again, I cannot help but agree with Justice Alito's majority decision here.
A potential exists within the legal frameworks of incorporation at the state level to establish clear differences in the legal definition of artificial personhood constituted by the act of incorporating a business. In this sense, I will argue below that a potential may exist for withdrawing certain privileges from corporate business forms if state legislatures choose to redefine the corporation, as a compact/contract with the state. On the other hand, as traditionally understood through the lingering influence of English Common Law (e.g. Blackstone's Commentaries) and the legacy of existing state statutes on incorporation, the legal distinction between a firm that has incorporated and one that has not is strictly limited to the privileges of limited civil liability with respect to the personal property of corporate officers/owners/shareholders and liability for corporate taxation purposes. Neither of these areas strictly implicates the capacity of corporate owners/officers/shareholders to invoke a claim relative to free exercise of religion or, for that matter, relative to the exercise of free speech (i.e. capacity to contribute funds to advocate a political candidate or cause). A legal document of incorporation does not irrevocably transform a small business, run by polite, pious, and frugal hometown folks, into an evil corporate empire. There is a peculiar lapse of reasoning among critics of the Hobby Lobby decision who have chosen to make the expansion of privileges inherent to corporate personhood their battleground. They do not comprehend the overall lack of economic significance inherent to the corporate form as a legal specification, notwithstanding the various advantages for expanded capital accumulation inherent to the corporate form.
Before I move on to the argument that I believe critics of the majority opinion in the Hobby Lobby decision might mean to make (but have been unable to for diverse reasons), I want to speculate on two further issues regarding freedom of religion claims by corporate entities. First, is it theoretically possible that publicly-held corporations could make claims related to free exercise of religion? Relative to the Hobby Lobby decision, answering this question would constitute entirely new ground for the federal jurists. My answer, notwithstanding the complexities involved here, is "yes." Such a conclusion might reflect the distant fears of the Hobby Lobby decision's critics.
At stake here is the capacity of an organizational form to develop procedures in order to arrive at a democratic consensus on the moral and ethical precepts of the organization within its leadership. In this respect, the Court could not have ruled in favor of religious claims by the Hahns and the Greens in the Hobby Lobby case if it could not simultaneously conclude that the capacity to invoke free exercise claims rested inherently in the person of the corporation (i.e. in the hands of an artificial person, rather than in the real hands of the owners of the corporation, who could, under any circumstances, invoke free exercise claims as real persons). That is to say, the fact that the Hahns and the Greens opposed access to certain forms of birth control bore no relevance on the decision - it only mattered insofar as the Hahns and Greens could articulate such a position and contribute to the decisions on contraceptive coverage by the organization in accordance with the moral and ethical position of the organization, as an artificial person. As such, it does not really matter here that Hobby Lobby and Conestoga are closely held, private corporations, however much Justice Alito emphasizes this point in articulating the majority opinion. If artificial persons can invoke claims on the free exercise of religion here, then they can always invoke such claims, whether they are owned by a small handful of family members or by a small multitude of private investors, pension funds and other institutional investors, and a transient mass of day traders. The real difference is that the Greens as executives of Hobby Lobby do not need to call a meeting of the Board of Directors, solicit shareholder sentiment through a proxy vote, or weather the effects of shareholder discontent on stock prices (or a shareholder revolt against the Board) if their decision to act on their sincere and substantiated religious-based moral and ethical precepts does not conform to the general tenor of public opinion.
My final issue of concern in regard to the corporate form, as a state-sanctioned artificial person, involves the capacity of states, as licensing authorities for business entities embodying limited civil liability, to arrest the current judicial expansion of rights inhering to corporate personhood. Specifically, it would seem conceivable that state legislatures, concerned with the capacity of corporations to invoke free exercise claims or to exercise free speech by means of rampant partisan spending on elections, could amend their incorporation laws in order to specifically truncate the rights that corporations may claim under the U.S. Constitution. Such enactments would certainly raise a range of Constitutional issues, beginning with enforcement of the Equal Protection Clause of the Fourteenth Amendment against such actions by a state. Under current settled Constitutional jurisprudential standards, corporations enjoy equal protection under the laws, under the particular terms in which they are chartered by states. There may be a substantial amount of leeway here for state legislatures to craft legal standards for incorporation in order to define the particular rights and responsibilities of corporations, ensuring that such business entities can hold and alienate property, sue and be sued, and enter into contracts but denying to such entities the right to make political contributions or to object on religious grounds to particular public policies.
One point that seems emphatically clear on the possibilities for legislative truncation of the rights inhering corporate personhood is that such amendments at the state level cannot be retroactive - corporations that have already been chartered have entered into a legal compact/contract with a particular state for the purpose of exercising business with the blessings of the public. Going back to Dartmouth College v. Woodward (17 U.S. 518 (1819)), corporate charters cannot be amended at will by state legislatures. Moreover, given both the contemporary high fluidity of money capital and competition among states to house corporations through maintenance of liberal incorporation standards and lower or no corporate income taxes, it seems likely that state-level efforts to truncate corporate Constitutional rights may be strictly limited in their effects. Sadly, for all the advocates of a truncated conception of corporate personhood, there may be no easy answer on how to bring American corporations to heel.
In this regard, I will continue to argue that corporate personhood, as a legal manifestation with an increasingly prominent array of Constitutional rights/privileges, is not the real problem and, in any case, not the thing that is so viciously objectionable to advocates of an expanded array of reproductive health options for women under the ACA. Rather, as I suggested in the previous section of this post, we need to be vigilant against the efforts of both legislatures (e.g. RFRA passed by Congress) and federal jurists to subject public policy intitiatives that enjoy a strong democratic consensus to stricter scrutiny against particular Constitutional privileges of individuals. It matters little that a corporation enjoys a privilege to freely exercise religion unless we elevate free exercise privileges to such a degree that any valid claim of enfringement through a law or regulation of general applicability will force the government to prove that it is serving a compelling governmental interest and acting through the least intrusive means. A large part of the problem here, thus, continues to inhere to the particular ways in which free exercise privileges are being interpreted against the public policy initiatives of government.
Sunday, July 13, 2014
On the Positives and Negatives of the Supreme Court Decision in Burwell v. Hobby Lobby Stores Inc., et al. I
If the title of this post suggests anything, then it should imply that I think this decision by the Court presents a mixed bag of positives and negatives for progressive supporters of health care reform in the U.S. and for defenders of access to women's reproductive health, in particular. The larger point of last week's decision (see U.S. Supreme Court, Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores Inc., et al., (henceforth "Hobby Lobby") No. 13-354 (October 2013 Term), at: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf) was to evaluate provisions of the Patient Protection and Affordable Care Act of 2010 (ACA), mandating the inclusion of coverage for contraceptive methods for women in employer sponsored health care plans, against the requirements of the Religious Freedom Restoration Act of 1993 (RFRA), mandating that government violations of the religious beliefs of a person should be evaluated for constitutionality through a compelling governmental interest standard. This standard implies that the onus should fall on the government to prove the indispensible character of its actions in regard to a particular area of public policy to the Courts and that no other mechanisms less intrusive with respect to the protected constitutional rights of individuals could be used to achieve its ends. In this respect, by mandating that individual employers above a certain size threshold should be compelled to sponsor (though not necessarily pay for) health insurance policies for employees inclusive of a particular set of female reproductive care/contraceptive procedures that might, in some manner, be construed as abortive of a pregnancy, the ACA violated the religious freedom of individual employers opposed to abortion, forcing them to sponsor health plans that would potentially enable employees to abort a pregnancy.
The challenge to the ACA, raised independently and subsequently merged by the Supreme Court, by Hobby Lobby Stores Inc. and by Conestoga Wood Specialties Corporation concerned the sponsorship of health insurance policies including coverage for provision of the Plan-B "morning after" pill and intrauterine devices (IUDs). These employers are privately-held for-profit corporations, and the ruling issued by the Court specifically and exhaustively concerns the inclusion of these particular procedures as components in the "minimum essential coverage" under the ACA in health insurance policies sponsored by privately held for-profit corporations. In my understanding, the decision excludes all other procedures included within the ACA or subsequent Health and Human Services regulatory enactments as "minimum essential coverage" (e.g. blood transfusions) that might be construed to violate religious beliefs of an employer. It, likewise, excludes all other manifestations of business other than privately-held for-profit corporations (e.g. sole proprietary or partnerships, publicly-held corporations). Regarding business forms, however, I am assuming that the Courts would conclude that, following from existing jurisprudential standards on the operation of privately owned, non-corporate business entities, religious freedom claims from non-corporate business owners under the RFRA would be granted at least the same scrutiny that the Court accords to private corporate owners here. To these ends, Justice Alito's majority opinion cites Braunfeld v. Brown (366 U.S. 599 (1961)) in which the Court granted certiorari to a number of Jewish owned proprietary businesses challenging a Pennsylvania Sunday closure law, thereby accepting the limited circumstance that proprietary business owners can issue claims for violation of religious freedom related to the operation of their businesses. In this respect, we have to recognize the particular limitations involved in the Hobby Lobby decision. On the other hand, this does not mean that the precedent set here will not promote expansions in the enforcement of the RFRA to wide ranges of other public policy enactments.
1. By virtue of its particular reading of the RFRA, the Court is opening up federal, state, and local/municipal/county policies to a range of legal challenges in the enforcement of diverse statutory and regulatory enactments against business over First Amendment religious objections.
This is an argument that I made in an earlier post when the Hobby Lobby case was initially argued before the Supreme Court as Sebellius v. Hobby Lobby Stores Inc. I adamently hold to the position that, if the federal judiciary follows a compelling governmental interest test in adjudicating every conceivable case in which a governmental jurisdiction is challenged on religious grounds, untold numbers of federal statutes and/or regulations will come to be challenged. It may be that, in such circumstances, the federal judiciary will develop particular procedures in order to rigorously truncate the conditions under which particular claimants enjoy standing to make RFRA claims and to rigorously define the terms under which particular claimants can challenge statutory and regulatory enactments as broad in scope as ACA. On the other hand, the basic issue here concerns the potentiality to deviate from a basic rationality test on the constitutionality of governmental actions whenever a plaintiff can reference religious beliefs. What happens when a particular employer advances a religious claim to challenge the applicability of, say, minimum wage laws or prohibitions of child labor to their business? What about religious objections to the collection of federal income taxes to pay for military expenditures (conscientious objection to military policies through the tax system)? I do not think that any of these situations are far from the potential field of claims that could issue from RFRA jurisprudence. Notwithstanding the capacity of the federal judiciary to define the conditions under which claimants enjoy standing, RFRA appears, at least in my understanding, to open up the field to a substantial range of challenges against which the federal government is going to have to prove the absolute indispensability of its actions and its inability to select less intrusive means of meeting their ends before the federal judiciary. In this sense, claims issued in reference to moral/spiritual conscience could assume a level of prioritization in the U.S. beyond anything ever contemplated by the founders.
Before contemplating the possibilities for remediation of the potential for this elevated prioritization of religion against public policy, I want to evaluate the line of jurisprudence that has so far emerged from adjudication of claims under RFRA and claims concerning "free exercise" of religious freedom under the First Amendment predating RFRA, because these precedents illuminate another, more fundamental criticism that I have against existing standards in U.S. Constitutional law. The first relevant case in this history is Braunfeld v. Brown (366 U.S. 599 (1961)), cited above. As noted, the case involves a "Sunday-closure" law in Pennsylvania, objected to by Orthodox Jewish business owners. In a plurality decision, Chief Justice Warren held that the law was constitutionally permissible even if it did violate the free exercise of religion by the plaintiffs, because the law was passed to further a legitimate governmental power in the regulation of working conditions for the general population without reference to religious distinctions and there was no less burdensome ways for the state to pursue its desired objective. In this sense, the Court appears to straddle a line between an interpretation of the First Amendment free exercise clause that would necessitate a compelling governmental interest test and one that would simply allow the state to defend its actions based on the legitimacy of its power to legislate in a given area and the rational relationship of the means to their stated ends. The critical point for the Court appears to be the incidental character of the burden placed on religion in a law of general applicability, the same area addressed by Congress in the language of RFRA. On the other hand, the Court opens the door by referencing, in the language of the decision, the notion that the availability of less burdensome regulatory means might have entered into the decision.
Two years later, the Court pursued the opening to a compelling governmental interest test that it had promulgated in Braunfeld when it decided Sherbert v. Verner (374 U.S. 398 (1963)). This case involved a Seventh-Day Adventist working for a textile mill in South Carolina who was dismissed, after having been employed for some time, for refusing to work on Saturdays, in conformity with her religious faith, when the mill's schedule was extended to six days. The plaintiff subsequently sought and was denied unemployment compensation from the state of South Carolina. Appealing in federal court on the grounds that her First Amendment right to free exercise of religion was violated in the decision of the state of South Carolina that her religious objection to working on Saturdays was not a mitigating circumstance in her dismissal for purposes of granting unemployment compensation, the Warren Court, on granting certiorari, ruled on the plaintiff's behalf. Justice Brennan enunciated the standard that, if an individual claiming a governmental violation of free exercise of religion has a claim involving a sincere and substantiated religious belief and a cited governmental actions imposes a substantial burden on the individual's capacity to act inaccordance with said belief, then the government must prove that it is pursuing a compelling governmental interest and that no other means of furthering the exercise of the interest exist that would be less burdensome to the free exercise of the individual's religion. This standard was, further, elaborated in Yoder v. Wisconsin (406 U.S. 205 (1972)), which held that Amish families could, in conformity with their sincere and substantiated religious convictions, remove their children from compulsory public education. These two cases constituted settled law in regard to assessing the incidental burdens of governmental actions in laws of general applicability before the passage of RFRA.
Then, in 1990, the Court decided Employment Divison, Department of Human Resources of Oregon v. Smith (494 U.S. 872 (1990)), involving the denial of a claim for unemployment compensation by Native American workers dismissed from their employment for religious use of peyote. In the majority opinion, Justice Scalia held, specifically, that a compelling governmental interest test should not be used in evaluating incidental burdens to the free exercise of religion from laws of general applicability. As such, Oregon's prohibition on the use of peyote could be employed as a circumstance in the decision to deny a claim for unemployment compensation, notwithstanding the existence of Native American religious practices employing peyote. The majority recommended to the respondents that they seek relief from the Oregon state legislature in the form of an exemption from enforcement of state drug laws relative to Native American religious use of peyote. In this regard, I want to point out that, under this peculiar cicumstance, I can absolutely agree with the Court and with Justice Scalia(!) I would, further, assert that I object to the entire line of adjudication emanating from Sherbert insofar as it opens up legislatures and regulatory policy makers to diverse judicial obstacles in crafting and enforcing laws and regulations of general applicability based on incidental burdens to the free exercise of religion.
When Congress acted in 1993, pursuant to both its Article III, Section 2 Constitutional authority (with respect to federal appellate jurisdiction) and its authority under the Fourteenth Amendment, Section 5 (with respect to the states), to regulate the terms under which the federal judiciary should evaluate violations of the free exercise of religion under the First Amendment from laws and regulations of general applicability, it does so at the behest of preeminently liberal defenders of the religious freedom of minorities. It should, likewise, be noted that the line of jurisprudence running from Braunfeld until Smith, involves defense of the exercise of religious beliefs by faith traditions that might be characterized as marginal against a combined backdrop of the mainline Protestant traditions and Roman Catholicism, including Jehovah's Witnesses, Seventh-Day Adventists, Orthodox Jews, the Amish, Quakers, and Native American religions. In these respects, enforcement of First Amendment protections of free religious exercise has historically been an affair involving the enunciation of restrictions on governmental actions in defense of persecuted or otherwise marginalized religious minorities. Indeed, when the RFRA is introduced in March of 1993 as H.R. 1308, its author is liberal, Jewish New York Democratic then-Representative Charles Schumer! Similarly, it was signed into law by (not-so liberal but very partisan) Democratic President William J. Clinton.
As a defender of everything that the liberal tradition of the Enlightenment advances in regard to the free exercise of individual conscience against majoritarian bigotry, as a matter of principle, I cannot help but sympathize with the motivations embodied in RFRA and, likewise, understand how and why its drafters probably did not comprehend the particular pernicious ends to which it might contribute when leveled against legislative enactments intended to advance serious and comprehensive reform agendas, like the ACA. On the other hand, as a defender, first and foremost, of the democratic principle against the categorical extension of any rights, I disagree with any law whose intent is to undermine the authority of the lawgiver by investing jurists with undue discretion to invalidate legal enactments or to judicially enact loopholes through which the force of law gets diluted. In its very conception as a means of instructing the federal judiciary on how to adjudicate claims regarding laws of general applicability against the free exercise of religion under stricter judicial scrutiny, I disagree with RFRA.
Having said this, prior to the Hobby Lobby case, RFRA enjoys a relatively mixed record in extending religious liberty against specific individual claims of government infringement, and, again, I regard this as a part of the problem with the Hobby Lobby case. In Small v. Lehman (98 F.3rd 762 (1996)), the federal Third District Court of Appeals ruled that RFRA was the law of the land for purposes of adjudicating a dispute between a Salafist Sunni Muslim sect of prisoners in a state corrections facility of Pennsylvania and prison officials over provision of space and time for separate religious services conforming to the sect's particular worship requirements. The court remanded the case to the district level with the instruction that the district court was to evaluate whether the defendants could substantiate a compelling governmental interest for denying the free exercise of religion by the plaintiffs. A year later, the Supreme Court heard and decided City of Boerne, TX v. Flores (521 U.S. 507 (1997)) in which the Court held that Congress exceeded its power under Section 5 of the Fourteenth Amendment to establish substantive rights for individuals under the Fourteenth Amendment, applicable against actions by state and local governments. In so many word, Justice Kennedy, in the Court's majority opinion, asserted that the federal judiciary was the sole entity capable of selectively incorporating and defining individual rights and protections from the Bill of Rights against state and local governments through the Fourteenth Amendment. Any effort by Congress to define the terms through which the individual protections of the Bill of Rights would be enforced against state and local governments would, thus, infringe on the separation of powers between the judicial and legislative branches of the federal government. Henceforth, RFRA would be applicable only against actions by the federal government.
In 1999, a devout Quaker anti-war federal income tax resister, Priscilla Adams, appealed a judgment in U.S. Tax Court (Adams v. Commissioner of Internal Revenue, 110 T.C. 137 (1998)) to the Third Circuit Court of Appeals (Adams v. Commissioner of Internal Revenue, 170 F.3rd 173 (1999)), arguing that RFRA constitutes terms under which the federal government should be compelled to prove that a means less intrusive to the free exercise of religion cannot be developed to collect revenues for strictly non-military purposes. The court identifies a long history of case law involving resistance to federal tax collection on grounds that the tax system violates the free exercise of religion. At each and every point in this history, the conclusion repeatedly follows that the collection of federal tax system "uniformly applicable to all, except as Congress provides explicitly otherwise," (cited: United States v. Lee, 455 U.S. 252 (1982), at 261) constitutes a compelling governmental interest for which there is no other means less intrusive to the free exercise of religion. Religious practices can, thus, never trump the collection of federal taxes.
In Navajo Nation v. U.S. Forest Service (535 F.3rd 1058 (9th Cir. 2008)), the federal Ninth Circuit Court of Appeals ruled against an RFRA free exercise claim issued by several Native American tribes that the use of recycled sewer water to produce artificial snow at a ski resort on federal lands in the San Francisco Mountains of northern Arizona would desecrate lands that the tribes considered sacred. The court apparently argued that, by permitting the use of recycled sewer water, the federal government would not be imposing any substantial burden on religious practices by the plaintiffs, because the contemplated use of recycled water would only impact the subjective spiritual experience of the plaintiffs(!) In this sense, the court qualified the conditions under which claims could be made against actions by the federal government under RFRA. That is to say, a claim can be issued for governmental actions that impose a substantial (material) burden on religious practices, however the terms of such a burden, thus, might be substantiated before the federal judiciary. In this respect, it might be worthwhile to inquire where the dividing line between subjective spiritual experience and the material necessities of free religious practice exists, because, at least to my satisfaction, the answer here appears entirely murky!
Summarizing the problems that I have with this line of jurisprudence, before and after the passage of RFRA, it is likely to be true that the federal judiciary will create procedures for sorting out when a claim under RFRA against particular federal governmental enactments or policies of general applicability requires an evaluation to determine whether the government must prove that it is pursuing a compelling governmental interest by the least intrusive means. It may, likewise, be the case that any hyperbolic parade of horribles characterizing the negative effects of the Hobby Lobby decision, particularly with respect to the extension of free exercise privileges to privately held corporations (a particular issue in Justice Ginsberg's dissent), is liable to overstate the impact of the decision, again, in view of the capacity of the federal judiciary to compartmentalize particular challenges to federal legislation. On the other hand, I have a problem with the very fact that the federal judiciary has been invested with this capacity to sort out claims in reference to RFRA and/or the Free Exercise clause.
Emphatically, we are investing unelected jurists with the capacity to determine when a religious practice is sincere and substantiated, when it involves something more profound and material in nature than a mere subjectively diminished spiritual experience, when a particular, Congressionally determined policy priority constitutes a compelling governmental interest, and when the exercise of this interest is or is not advanced by the least intrusive means possible. It might stand to reason that someone, like myself, who invests undiminished priority in the democratic process would find any uses of a compelling governmental interest test by jurists objectionable. I could probably take some amount of comfort that, in view of the Boerne decision, no RFRA claims will ever be made again against state or local governmental enactments of general applicability. Conversely, I think that I would be apt to sympathize at least as much with anti-war tax resisters like Priscilla Adams, in their sincere and substantiated religious convictions, as I would with the Hahns (of Conestoga Wood Specialities) and the Greens (of Hobby Lobby), in their sincere and substantiated religious convictions. What, in this cicumstance, makes the collection of the federal income tax more of compelling governmental interest and less amenable to alternative methodologies for reducing its incidental burden on the free exercise of religious convictions than the requirement that employers of a certain scale must provide health insurance with particular coverage minimums? In my view, unelected federal jurists should not be entitled to make such a determination. This is a question to be entertained by Congress in its capacity to act in accordance with its enumerated powers, inclusive of determinations of what might be "necessary and proper" to exercise each.
The challenge to the ACA, raised independently and subsequently merged by the Supreme Court, by Hobby Lobby Stores Inc. and by Conestoga Wood Specialties Corporation concerned the sponsorship of health insurance policies including coverage for provision of the Plan-B "morning after" pill and intrauterine devices (IUDs). These employers are privately-held for-profit corporations, and the ruling issued by the Court specifically and exhaustively concerns the inclusion of these particular procedures as components in the "minimum essential coverage" under the ACA in health insurance policies sponsored by privately held for-profit corporations. In my understanding, the decision excludes all other procedures included within the ACA or subsequent Health and Human Services regulatory enactments as "minimum essential coverage" (e.g. blood transfusions) that might be construed to violate religious beliefs of an employer. It, likewise, excludes all other manifestations of business other than privately-held for-profit corporations (e.g. sole proprietary or partnerships, publicly-held corporations). Regarding business forms, however, I am assuming that the Courts would conclude that, following from existing jurisprudential standards on the operation of privately owned, non-corporate business entities, religious freedom claims from non-corporate business owners under the RFRA would be granted at least the same scrutiny that the Court accords to private corporate owners here. To these ends, Justice Alito's majority opinion cites Braunfeld v. Brown (366 U.S. 599 (1961)) in which the Court granted certiorari to a number of Jewish owned proprietary businesses challenging a Pennsylvania Sunday closure law, thereby accepting the limited circumstance that proprietary business owners can issue claims for violation of religious freedom related to the operation of their businesses. In this respect, we have to recognize the particular limitations involved in the Hobby Lobby decision. On the other hand, this does not mean that the precedent set here will not promote expansions in the enforcement of the RFRA to wide ranges of other public policy enactments.
1. By virtue of its particular reading of the RFRA, the Court is opening up federal, state, and local/municipal/county policies to a range of legal challenges in the enforcement of diverse statutory and regulatory enactments against business over First Amendment religious objections.
This is an argument that I made in an earlier post when the Hobby Lobby case was initially argued before the Supreme Court as Sebellius v. Hobby Lobby Stores Inc. I adamently hold to the position that, if the federal judiciary follows a compelling governmental interest test in adjudicating every conceivable case in which a governmental jurisdiction is challenged on religious grounds, untold numbers of federal statutes and/or regulations will come to be challenged. It may be that, in such circumstances, the federal judiciary will develop particular procedures in order to rigorously truncate the conditions under which particular claimants enjoy standing to make RFRA claims and to rigorously define the terms under which particular claimants can challenge statutory and regulatory enactments as broad in scope as ACA. On the other hand, the basic issue here concerns the potentiality to deviate from a basic rationality test on the constitutionality of governmental actions whenever a plaintiff can reference religious beliefs. What happens when a particular employer advances a religious claim to challenge the applicability of, say, minimum wage laws or prohibitions of child labor to their business? What about religious objections to the collection of federal income taxes to pay for military expenditures (conscientious objection to military policies through the tax system)? I do not think that any of these situations are far from the potential field of claims that could issue from RFRA jurisprudence. Notwithstanding the capacity of the federal judiciary to define the conditions under which claimants enjoy standing, RFRA appears, at least in my understanding, to open up the field to a substantial range of challenges against which the federal government is going to have to prove the absolute indispensability of its actions and its inability to select less intrusive means of meeting their ends before the federal judiciary. In this sense, claims issued in reference to moral/spiritual conscience could assume a level of prioritization in the U.S. beyond anything ever contemplated by the founders.
Before contemplating the possibilities for remediation of the potential for this elevated prioritization of religion against public policy, I want to evaluate the line of jurisprudence that has so far emerged from adjudication of claims under RFRA and claims concerning "free exercise" of religious freedom under the First Amendment predating RFRA, because these precedents illuminate another, more fundamental criticism that I have against existing standards in U.S. Constitutional law. The first relevant case in this history is Braunfeld v. Brown (366 U.S. 599 (1961)), cited above. As noted, the case involves a "Sunday-closure" law in Pennsylvania, objected to by Orthodox Jewish business owners. In a plurality decision, Chief Justice Warren held that the law was constitutionally permissible even if it did violate the free exercise of religion by the plaintiffs, because the law was passed to further a legitimate governmental power in the regulation of working conditions for the general population without reference to religious distinctions and there was no less burdensome ways for the state to pursue its desired objective. In this sense, the Court appears to straddle a line between an interpretation of the First Amendment free exercise clause that would necessitate a compelling governmental interest test and one that would simply allow the state to defend its actions based on the legitimacy of its power to legislate in a given area and the rational relationship of the means to their stated ends. The critical point for the Court appears to be the incidental character of the burden placed on religion in a law of general applicability, the same area addressed by Congress in the language of RFRA. On the other hand, the Court opens the door by referencing, in the language of the decision, the notion that the availability of less burdensome regulatory means might have entered into the decision.
Two years later, the Court pursued the opening to a compelling governmental interest test that it had promulgated in Braunfeld when it decided Sherbert v. Verner (374 U.S. 398 (1963)). This case involved a Seventh-Day Adventist working for a textile mill in South Carolina who was dismissed, after having been employed for some time, for refusing to work on Saturdays, in conformity with her religious faith, when the mill's schedule was extended to six days. The plaintiff subsequently sought and was denied unemployment compensation from the state of South Carolina. Appealing in federal court on the grounds that her First Amendment right to free exercise of religion was violated in the decision of the state of South Carolina that her religious objection to working on Saturdays was not a mitigating circumstance in her dismissal for purposes of granting unemployment compensation, the Warren Court, on granting certiorari, ruled on the plaintiff's behalf. Justice Brennan enunciated the standard that, if an individual claiming a governmental violation of free exercise of religion has a claim involving a sincere and substantiated religious belief and a cited governmental actions imposes a substantial burden on the individual's capacity to act inaccordance with said belief, then the government must prove that it is pursuing a compelling governmental interest and that no other means of furthering the exercise of the interest exist that would be less burdensome to the free exercise of the individual's religion. This standard was, further, elaborated in Yoder v. Wisconsin (406 U.S. 205 (1972)), which held that Amish families could, in conformity with their sincere and substantiated religious convictions, remove their children from compulsory public education. These two cases constituted settled law in regard to assessing the incidental burdens of governmental actions in laws of general applicability before the passage of RFRA.
Then, in 1990, the Court decided Employment Divison, Department of Human Resources of Oregon v. Smith (494 U.S. 872 (1990)), involving the denial of a claim for unemployment compensation by Native American workers dismissed from their employment for religious use of peyote. In the majority opinion, Justice Scalia held, specifically, that a compelling governmental interest test should not be used in evaluating incidental burdens to the free exercise of religion from laws of general applicability. As such, Oregon's prohibition on the use of peyote could be employed as a circumstance in the decision to deny a claim for unemployment compensation, notwithstanding the existence of Native American religious practices employing peyote. The majority recommended to the respondents that they seek relief from the Oregon state legislature in the form of an exemption from enforcement of state drug laws relative to Native American religious use of peyote. In this regard, I want to point out that, under this peculiar cicumstance, I can absolutely agree with the Court and with Justice Scalia(!) I would, further, assert that I object to the entire line of adjudication emanating from Sherbert insofar as it opens up legislatures and regulatory policy makers to diverse judicial obstacles in crafting and enforcing laws and regulations of general applicability based on incidental burdens to the free exercise of religion.
When Congress acted in 1993, pursuant to both its Article III, Section 2 Constitutional authority (with respect to federal appellate jurisdiction) and its authority under the Fourteenth Amendment, Section 5 (with respect to the states), to regulate the terms under which the federal judiciary should evaluate violations of the free exercise of religion under the First Amendment from laws and regulations of general applicability, it does so at the behest of preeminently liberal defenders of the religious freedom of minorities. It should, likewise, be noted that the line of jurisprudence running from Braunfeld until Smith, involves defense of the exercise of religious beliefs by faith traditions that might be characterized as marginal against a combined backdrop of the mainline Protestant traditions and Roman Catholicism, including Jehovah's Witnesses, Seventh-Day Adventists, Orthodox Jews, the Amish, Quakers, and Native American religions. In these respects, enforcement of First Amendment protections of free religious exercise has historically been an affair involving the enunciation of restrictions on governmental actions in defense of persecuted or otherwise marginalized religious minorities. Indeed, when the RFRA is introduced in March of 1993 as H.R. 1308, its author is liberal, Jewish New York Democratic then-Representative Charles Schumer! Similarly, it was signed into law by (not-so liberal but very partisan) Democratic President William J. Clinton.
As a defender of everything that the liberal tradition of the Enlightenment advances in regard to the free exercise of individual conscience against majoritarian bigotry, as a matter of principle, I cannot help but sympathize with the motivations embodied in RFRA and, likewise, understand how and why its drafters probably did not comprehend the particular pernicious ends to which it might contribute when leveled against legislative enactments intended to advance serious and comprehensive reform agendas, like the ACA. On the other hand, as a defender, first and foremost, of the democratic principle against the categorical extension of any rights, I disagree with any law whose intent is to undermine the authority of the lawgiver by investing jurists with undue discretion to invalidate legal enactments or to judicially enact loopholes through which the force of law gets diluted. In its very conception as a means of instructing the federal judiciary on how to adjudicate claims regarding laws of general applicability against the free exercise of religion under stricter judicial scrutiny, I disagree with RFRA.
Having said this, prior to the Hobby Lobby case, RFRA enjoys a relatively mixed record in extending religious liberty against specific individual claims of government infringement, and, again, I regard this as a part of the problem with the Hobby Lobby case. In Small v. Lehman (98 F.3rd 762 (1996)), the federal Third District Court of Appeals ruled that RFRA was the law of the land for purposes of adjudicating a dispute between a Salafist Sunni Muslim sect of prisoners in a state corrections facility of Pennsylvania and prison officials over provision of space and time for separate religious services conforming to the sect's particular worship requirements. The court remanded the case to the district level with the instruction that the district court was to evaluate whether the defendants could substantiate a compelling governmental interest for denying the free exercise of religion by the plaintiffs. A year later, the Supreme Court heard and decided City of Boerne, TX v. Flores (521 U.S. 507 (1997)) in which the Court held that Congress exceeded its power under Section 5 of the Fourteenth Amendment to establish substantive rights for individuals under the Fourteenth Amendment, applicable against actions by state and local governments. In so many word, Justice Kennedy, in the Court's majority opinion, asserted that the federal judiciary was the sole entity capable of selectively incorporating and defining individual rights and protections from the Bill of Rights against state and local governments through the Fourteenth Amendment. Any effort by Congress to define the terms through which the individual protections of the Bill of Rights would be enforced against state and local governments would, thus, infringe on the separation of powers between the judicial and legislative branches of the federal government. Henceforth, RFRA would be applicable only against actions by the federal government.
In 1999, a devout Quaker anti-war federal income tax resister, Priscilla Adams, appealed a judgment in U.S. Tax Court (Adams v. Commissioner of Internal Revenue, 110 T.C. 137 (1998)) to the Third Circuit Court of Appeals (Adams v. Commissioner of Internal Revenue, 170 F.3rd 173 (1999)), arguing that RFRA constitutes terms under which the federal government should be compelled to prove that a means less intrusive to the free exercise of religion cannot be developed to collect revenues for strictly non-military purposes. The court identifies a long history of case law involving resistance to federal tax collection on grounds that the tax system violates the free exercise of religion. At each and every point in this history, the conclusion repeatedly follows that the collection of federal tax system "uniformly applicable to all, except as Congress provides explicitly otherwise," (cited: United States v. Lee, 455 U.S. 252 (1982), at 261) constitutes a compelling governmental interest for which there is no other means less intrusive to the free exercise of religion. Religious practices can, thus, never trump the collection of federal taxes.
In Navajo Nation v. U.S. Forest Service (535 F.3rd 1058 (9th Cir. 2008)), the federal Ninth Circuit Court of Appeals ruled against an RFRA free exercise claim issued by several Native American tribes that the use of recycled sewer water to produce artificial snow at a ski resort on federal lands in the San Francisco Mountains of northern Arizona would desecrate lands that the tribes considered sacred. The court apparently argued that, by permitting the use of recycled sewer water, the federal government would not be imposing any substantial burden on religious practices by the plaintiffs, because the contemplated use of recycled water would only impact the subjective spiritual experience of the plaintiffs(!) In this sense, the court qualified the conditions under which claims could be made against actions by the federal government under RFRA. That is to say, a claim can be issued for governmental actions that impose a substantial (material) burden on religious practices, however the terms of such a burden, thus, might be substantiated before the federal judiciary. In this respect, it might be worthwhile to inquire where the dividing line between subjective spiritual experience and the material necessities of free religious practice exists, because, at least to my satisfaction, the answer here appears entirely murky!
Summarizing the problems that I have with this line of jurisprudence, before and after the passage of RFRA, it is likely to be true that the federal judiciary will create procedures for sorting out when a claim under RFRA against particular federal governmental enactments or policies of general applicability requires an evaluation to determine whether the government must prove that it is pursuing a compelling governmental interest by the least intrusive means. It may, likewise, be the case that any hyperbolic parade of horribles characterizing the negative effects of the Hobby Lobby decision, particularly with respect to the extension of free exercise privileges to privately held corporations (a particular issue in Justice Ginsberg's dissent), is liable to overstate the impact of the decision, again, in view of the capacity of the federal judiciary to compartmentalize particular challenges to federal legislation. On the other hand, I have a problem with the very fact that the federal judiciary has been invested with this capacity to sort out claims in reference to RFRA and/or the Free Exercise clause.
Emphatically, we are investing unelected jurists with the capacity to determine when a religious practice is sincere and substantiated, when it involves something more profound and material in nature than a mere subjectively diminished spiritual experience, when a particular, Congressionally determined policy priority constitutes a compelling governmental interest, and when the exercise of this interest is or is not advanced by the least intrusive means possible. It might stand to reason that someone, like myself, who invests undiminished priority in the democratic process would find any uses of a compelling governmental interest test by jurists objectionable. I could probably take some amount of comfort that, in view of the Boerne decision, no RFRA claims will ever be made again against state or local governmental enactments of general applicability. Conversely, I think that I would be apt to sympathize at least as much with anti-war tax resisters like Priscilla Adams, in their sincere and substantiated religious convictions, as I would with the Hahns (of Conestoga Wood Specialities) and the Greens (of Hobby Lobby), in their sincere and substantiated religious convictions. What, in this cicumstance, makes the collection of the federal income tax more of compelling governmental interest and less amenable to alternative methodologies for reducing its incidental burden on the free exercise of religious convictions than the requirement that employers of a certain scale must provide health insurance with particular coverage minimums? In my view, unelected federal jurists should not be entitled to make such a determination. This is a question to be entertained by Congress in its capacity to act in accordance with its enumerated powers, inclusive of determinations of what might be "necessary and proper" to exercise each.
Tuesday, July 1, 2014
Too Bad for USA in the World Cup, Out After 2-1 Loss to Belgium
For my part, I have to concede, with most other Americans, that I am not a great football (soccer) fan, except insofar as our national team is still in the World Cup. I used to be more of a football fan, but it is a difficult practice, even in New England, territory a little more amenable to the sport. In particular, I spent a good number of saturday nights and sundays driving out to Foxboro to catch the Revs, the New England Revolution, and, also, caught a good number of games for the Western Mass. Pioneers, at Lusitano Stadium down the valley in Ludlow, a proud community with lots of second and third generation Portuguese-Americans and a deep love of football. On the other hand, my primary motive for going to Revs games was always to hang out with the old Rev Army, a fun-loving gang of Boston and Providence and other (Western Mass) skinheads (not the racist kind, just the diverse, noisy, drunken singing/chanting, football-loving kind), to drink a few beers out in the parking lot before marching out to the old Foxboro stadium (not the present Gillette stadium) and stand up and make all kinds of noise for the Revs in section 2, straight behind one of the nets. In the time since then, from what I understand, some of the more "conventional" Revs fans stole a number of Rev Army chants and ran with them - too bad, but I have neither the time nor the money nor the wheels to make the Revs a serious pastime and to take back the reputation of the old Rev Army as a relic of my more rowdy past! As for the Pioneers, my big enjoyment in going down to Ludlow, beside the low price of seating (and I was normally standing behind the goal anyway), was ordering up a bifana (a marinated pork cutlet sandwich) from the concession building. My legacy as a football fan just does not run particularly deep into my consciousness!
Having gone through the necessary admission that what transpired today isn't really going to bother me for very long, I was enjoying the limited success that the USA Team was experiencing in this World Cup. If nothing else, we can at least point out the fact that this year, we made it deeper into the tournament than England, Spain, Italy, and Portugal, countries that rightly enjoy a much deeper connection to football than my country has historically entertained. Against Belgium, I think our team played a great game, even if they were significantly lacking in possession of the ball, especially in the first half. They really needed to make more chances for themselves on offense, although their defensive game, especially in the box, was fundamentally sound, and Tim Howard did a fantastic job as keeper (notwithstanding the fact that, in his interviews after the game, he looked a little like Frankenstein's monster with the veins protruding from the side of his forehead!). They desperately needed to put more pressure on Courtois earlier. Beyond this, I think that they got farther into the tournament then anyone expected that they would. I was sure that they would beat Ghana in the opening group round, but I expected them to lose outright to both Portugal and Germany. In sum, I am not as disappointed as I am proud of our team - they went above and beyond my expectations.
Having gone through the necessary admission that what transpired today isn't really going to bother me for very long, I was enjoying the limited success that the USA Team was experiencing in this World Cup. If nothing else, we can at least point out the fact that this year, we made it deeper into the tournament than England, Spain, Italy, and Portugal, countries that rightly enjoy a much deeper connection to football than my country has historically entertained. Against Belgium, I think our team played a great game, even if they were significantly lacking in possession of the ball, especially in the first half. They really needed to make more chances for themselves on offense, although their defensive game, especially in the box, was fundamentally sound, and Tim Howard did a fantastic job as keeper (notwithstanding the fact that, in his interviews after the game, he looked a little like Frankenstein's monster with the veins protruding from the side of his forehead!). They desperately needed to put more pressure on Courtois earlier. Beyond this, I think that they got farther into the tournament then anyone expected that they would. I was sure that they would beat Ghana in the opening group round, but I expected them to lose outright to both Portugal and Germany. In sum, I am not as disappointed as I am proud of our team - they went above and beyond my expectations.
The Crisis in Iraq, ISIS/ISIL, the Influences of Syria and Iran, and the Erstwhile American Response
With all of the other subjects that I have been trying to get to on this blog (completing what will probably be quite a long post of reflections on Detroit and, not incidentally, on casino gaming; conveying some thoughts on the free-trade agreement signed between the EU, Ukraine, Moldova, and Georgia; and my hopes to return at some point to psychoanalytic questions on love, sex, hook-ups, marriage, etc.) and the need to complete my critique of the "pure" Neoclassical theory of the firm on my economic theory blog (www.egsoinexile.blogspot.com), I just haven't gotten around to expressing any thoughts on the situation in Iraq. I want to stop, momentarily, to leave a few short reflections concerning the nature of the present crisis/civil war, its relationship to both the civil war in Syria and to the Shi'a Islamic revolution of Iran, its context within the broader religious struggle between Sunni and Shi'a Islam, and the reasoning and expectations of success for any American intervention with strictly limited objectives of restoring political stability and stabilizing the effects of Iraqi conflict on global petroleum markets.
1. Iraq is not a nation - it is an arbitrary colonial-era construct whose future relies on the capacity of individual, culturally-defined groups of stakeholders to realize some benefit by working together within a common government.
This conclusion has to be the starting point for any subsequent reflections on the problems facing the geographic space occupying what was once Mesopotamia and a wide expanse of desert on the southern/western flank of the Euphrates River and on the northern/eastern flank of the Tigris River to the Iranian frontier. As with many other topics on which I have commented in this blog, I want to emphasize my relative lack of knowledge on this subject compared to individuals who have spent the balance of their lives studying the intricacies of Iraqi history. It is my understanding that the political entity within this geographic space was, jointly, a formal political product of the Sykes-Picot agreement, negotiated in 1916 by the French, British, and Tsarist Russian governments concerning the partition of territories governed by the Ottoman caliphate among the allied colonial powers, and of the Treaty of Sèvres in 1920, intended as an imposition of the peace against the Ottoman caliphate, including its political dismemberment by Britain, France, and Greece. Iraq's present political-jurisdictional boundaries were apparently drawn by the Treaty of Sèvres. These boundaries sutured culturally and religiously diverse groups, including Arab Muslims embracing both Shi'a and Sunni practices of Islam, Kurdish Muslims, and a tiny minority of Christian Assyrians that has virtually disintegrated at the present time.
It is my contention here that the conglomeration of these ethnically diverse groups can only be labeled a nation to the extent that each has embodied a generalized sense of commitment to the constitutional process through which the state defined itself as the legitimate embodiment of the political aspirations of a unified sovereign polity. That is to say, we could characterize the Iraqis as a nation if the populations contained by its political-jurisdictional boundaries jointly consented to the establishment of the state by which each individual group could claim a place within the collective political lineage of the nation through which the diverse multitude had, politically/constitutionally, become one. To my knowledge, this liberal-democratic/constitutionalist processual ideal cannot describe the manner in which Britain, as the colonial overlord of the geographic space and exploitative caretaker of Iraqi petroleum, foisted together masses of dissimilar groups into a common jurisdictional entity. Critically, prior to British administration, the same groups were unified under the Ottoman caliphate and, since the initial revolt of Sunnis and Shi'a against British direct rule in the early 1920s, these groups have had some ninety years to forge a sense of nationhood, characterized by a collective, secular political culture opening a space for the identification of shared interests and a shared memory of the evolving course of the country's political, economic, and cultural development. It could have been the case that the awkward conglomeration of ethnic and religious groups residing in the geography defined by the Treaty of Sèvres could have looked at each other more and more like an actual nation, defined by a shared political constitution and a sense that, for all of their cultural differences, each was made stronger by their diversities in relation to their countrymen.
But this isn't what happened, in large part, I would argue, because such a process would have required some semblance of a culturally inclusive democratic/pluralist process. Such a process might have operated on some level distinct from open mass political participation. For example, the rise of the secular, socialist Ba'athist movement in the 1950s might have pulled in Sunni, Shi'a, and Kurdish subsets to forge a conception of national identity transcending individual group belonging, even insofar as democratic involvement by each group was strictly limited within the larger structure of a system that could otherwise be characterized as an oligarchy. Given my commitments to the democratic process, I want to be extremely careful about how I am characterizing the Ba'athist movement in relation to democracy. My meaning more closely approaches the concept of pluralism, as inclusion of multiple distinct groups within political processes in which the shared result reflects participation by all groups in defense of their individual interests, by implicit representation rather than by mass democratic choice. In theory, Ba'athism, espousing secular, pan-Arab nationalism, unity, and a unique, Arab road to socialism, could have been a basis for the unification of Sunni and Shi'a Iraqi Arabs into a common nation. In practice, Iraqi Ba'athism appears to have prioritized Sunni groups. The two principal leaders of Iraqi Ba'athism, Ahmed Hassan al-Bakr and Saddam Hussein, both emerged from the northern Sunni province of Ninawa (both were from the city of Tikrit and were apparently relatives). Moreover, the Kurds remain a continuous outlier to the political process, even as Arab groups espouse ideologies that hold the promise of Arab national (and transnational, pan-Arab) unity. The degree to which the Iraqi Ba'athists, from the 1960s forward, promoted disunity in practice among Arab Iraqis is highly questionable, in the same way that the extent to which the Syrian Ba'athists under the Assad regime intentionally prioritized Alawites to the detriment of Sunnis is questionable. In important ways, the rise of revolutionary Shi'ism in Iran in 1979 turned the tables on Iraqi Ba'athism, making the Iraqi Shi'a into potential enemies threatening the internal order nurtured by secular (or, at least, non-sectarian Muslim) pan-Arab nationalist ideology. Hence, the Iraqi invasion of Iran in an effort to arrest the Shi'ite revolution before it could sever the tender threads of Arab Iraqi national unity.
The feeble idea of an Iraqi nation did not survive the start of the Iran-Iraq war. As much as countless foreign policy analysts have made the valid point that the U.S. invasion of Iraq in 2003 caused a long term destabilization of Iraq and of the larger Middle East region whose effects are being borne in the current crisis, we also have to recognize that, at least since the Ba'athist Saddam Hussein declared himself the mortal enemy of the Iranian Shi'a revolution, the stabilization of Iraq relied on unvarnished sectarian policies, prioritizing the Sunni Arab minority and periodically engaging in brutal repression of the Arab Iraqi Shi'a majority and the Kurdish minority. With this in mind, 1979 appears to have been the critical moment of the rupture in Arab Iraqi nationhood. Acknowledging the fundamental flaws in Nouri al-Maliki's blatantly sectarian government, excluding Sunnis and Kurds from a meaningful role within the government and actively exercising repression by security forces against Sunnis, especially in Anbar and Ninawa provinces, prior to the rise of ISIS/ISIL, it is further necessary to acknowledge that a longer history weighs heavily against the possibilities for an all-encompassing pluralism among the various ethnic and sectarian groups of Iraq. Calls for Maliki's resignation, especially by Grand Ayatolla Ali al-Sistani, and for the formation of a new government with greater Sunni and Kurdish involvement/investment, thus, touch on the larger structure of the sectarian problem in Iraq, but they do not address the very real preconditions that allowed Maliki to come to power and develop a set of policy priorities that would so strongly favor the Shi'a majority at the expense of Sunnis. In this respect, notwithstanding the pressure exerted by Grand Ayatolla al-Sistani as a voice counseling moderation, inclusion of marginalized groups, and fidelity to the project of a unified Iraq in defense of the peace and the protection of the holiest Shi'a shrines (see Alexander Dziadosz and Raheem Salman, "After years off-stage, Iraq's Sistani takes charge," on Reuters (29 June 2014), at: http://www.reuters.com/article/2014/06/29/us-iraq-security-clerics-insight-idUSKBN0F30KX20140629), it would seem that the momentum of Sunni v. Shi'a conflict in Iraq continues to favor a zero-sum resolution by means of armed violence.
It seems that Kurdistan will continue to proceed in the direction of greater and greater regional autonomy relative to Baghdad and that it will continue to emerge as the most transparent, pluralistic, secular democratic regime within the geographic space characterized as Iraq. Outside of this potential bright spot, that needs to be aggressively supported by the West through financial assistance, private capital investment, and, if necessary military aid, the remainder of Iraq appears headed for a brutal split between Shi'a and Sunni, waged by the Iraqi "Army" and the Shi'a Mahdi Army's "Peace Brigades," on the one hand, and by ISIS/ISIL, on the other. In this context, the concept of Iraq is more a hindrance than a blessing, insofar as Sunnis and Shi'a who continue to believe, reflexively, in a unified nation and in their respective birthrights to be masters of that nation will shed enormous volumes of blood to impose their will over their opponents. If it is a fair representative statement on the intractable character of differences between Iraqi ethnic groups, Sunni and Kurdish parliament members have walked out of meetings intended to establish a new government after elections last April because the majority Shi'a National Alliance have failed to advance a replacement as prime minister for Maliki (see Rasheem Salman and Oliver Holmes, "Sunnis, Kurds abandon Iraqi Parliament after no replacement for Maliki named," on Reuters (1 July 2014), at: http://www.reuters.com/article/2014/07/01/us-iraq-security-idUSKBN0F630G20140701). Peace would be better served by a concession, on all sides, that Iraq does not really exist and that the long term interests of all sides would be satisfied in formal separation.
2. A Victory for ISIS/ISIL in Anbar and Ninawa Provinces and in eastern Syria would be a disaster for the populations of these regions, for the Middle East, and for the world as a whole.
As with many other topics on this blog, I will confess some degree of ignorance on the backstory behind the Islamic State of Iraq and Syria (ISIS)/Islamic State of Iraq and the Levant (ISIL) (I cannot even tell what the appropriate name and acronym is for this group). They have, apparently re-christened themselves simply the Islamic State in the last two days, declaring their leader, Abu Bakr al-Baghdadi, caliph, summoning a connection to a line Muslim politico-spiritual leadership extending back to the foundations of Islam and last associated with the Ottoman caliphate. The grandiose heights now occupied by the group, which currently controls a broad swath of land encompassing much of Anbar and Ninawa provinces in Iraq (including Mosul) and territory extending on the upper Eurphrates valley in Syria approaching Aleppo, apparently constituted itself among leftover partisans of Al Qaeda in Iraq after the U.S. supported Sunni awakening of tribal groups that largely destroyed Al Qaeda's presence in Iraq. The group's rise is a testament to the fact that history deplores a vacuum. The spillover the Arab Spring to Syria, destabilizing the hold of the Assad regime in Syrian northeast/Euphrates valley, enabled Sunni insurgents from Anbar province, tested in combat with U.S. forces in places like Falluja, to seize and hold ground left behind by Syrian security forces, as Assad struggled to hold on to the Damascus suburbs and his logistical lines to the Alawite enclaves on the northern Mediterranean coast. The group's return to Iraq, moreover, and its substantial success at attracting even former Ba'athists into an anti-government coalition attests to the complete failure of the Maliki government in responding to the demands of Sunnis in the north and west for greater inclusion in the determination of state policies and, certainly, for more government employment and a larger share of the benefits from international petroleum trade.
In this respect, certain points need to be acknowledged in considering the rise of ISIS/ISIL in northern and western Iraq and in northern and eastern Syria. First, the predominantly Arab Sunni populations in these regions are by no means necessarily predisposed to the brand of radical Salafism supported by ISIS/ISIL. If, especially in rural areas, these populations might be expected to practice a relatively conservative brand of Sunni Islam, the turn toward Salafism within ISIS/ISIL, other present or former Al Qaeda affiliate organizations, and more or less peaceful organizations like the Muslim Brotherhoods, reflects, to a substantial degree, the interaction/reaction of traditional modes of Sunni Islam with secular/modernist/liberal-and/or-socialist, Western ideologies, a pattern evident in urbanized social formations in the Islamic world. Emphatically, in Syria, such ideologies reflect direct confrontation with the relatively secular nature of the Assad regime and its liberal influence on Islamic practices in urban areas of the country, against which the Salafists express a categorical rejection of Western influences, corrupting the purity of Islamic religious practices.
In the Iraqi context, however, Salafism finds itself in direct confrontation with an entirely distinct Muslim other, the Shi'a revolution and its lingering impact on Iraqi Shi'a, including the lingering effects of Ba'athist suppression of the possibilities for Shi'ite political transformation. The very distinct historical roots, alluding to distinct origins at particular moments in the foundations of Islam, manifest in Sunni Salafism and in the Iranian brand of Shi'a revolution (revolutionary guardianship of Islamic jurists), make each militant approach mutually incompatible. Pointedly, ISIS/ISIL regards Shi'a, Iraqi or otherwise, as apostates, worthy of execution for their false beliefs. As such, the militant religious imperatives of ISIS/ISIL combined with the fundamentally historical/contextual political and economic grievances of Sunni population, particular those of ex-Ba'athists, to shape the development of the current uprising against the Maliki government, with its anchoring in the partisan privileging of Shi'a over Sunnis and Kurds and its tacit acquiescence in the revolutionary political Shi'ism of such figures as Muqtada al-Sadr and the Mahdi movement.
Considered in this manner, Abu Bakr al-Baghdadi is doing something uniquely similar in spirit to the revolutionary seizure of initiative in the Iranian revolution by Ayatolla Ruhollah Khomeini - he is hijacking the political and economic discontents of a repressed, but not otherwise religiously militant, population in order to advance his own religious objective, in this case restoration of the Muslim caliphate and in a rigorously and brutally repressive Sunni Salafist form. In this regard, we need to stop and think for a moment about the consequences of what ISIS/ISIL has so far achieved and what the organization may be able to achieve if it is allowed to establish state institutions and some measure of political legitimacy (a very big if).
A crucial component in this if concerns the capacity of ISIS/ISIL to develop sources of wealth/economic development for local populations in order to both solidify its legitimacy with the populations under its domination and to prosecute its larger objectives relative to struggle against the Shi'a Iraqi regime in Baghdad (both defense of gains and expansion), and this component most critically involves access to petroleum resources and the means to convert such access into revenues and foreign exchange. If it was able to access either southern oil production resources or, more likely, fields in the vicinity of Kirkuk, currently in Kurdish control, then it might be able to create the conditions to constitute a durable state apparatus, ensuring its domination of the upper Euphrates valley and Ninawa and Anbar provinces against both the Shi'a dominated Iraqi regime and the Assad regime in Syria. The most likely avenue of advance for ISIS/ISIL, then, takes it into direct conflict with Kurdish forces to access the norther oil fields around Kirkuk. Before any of this can happen, however, the organization is sure to encounter a counteroffensive by the regime in Baghdad intended to retake Ninawa province, especially Tikrit and Mosul and to push back ISIS/ISIL forces from the immediate periphery of Baghdad. If the organization is capable of retaining its control of areas it currently possesses (again, a hugely big if, considering the large scale mobilization of Shi'a Mahdi irregulars that appears to be taking place), then it may enjoy the freedom to take on areas on the boundary of Kurdish control in the north in order to get at the northern oil fields. Assuming it can do so, it will need to find buyers, which may be a struggle in and of itself.
Even if ISIS/ISIL neither secures access of oil extracting regions in Iraq nor sells oil on the global marketplace, its continued existence as a visible threat to the capacity of the government in Baghdad and the regional authorities in Kurdistan to secure oil extraction for foreign concessions and to achieve transhipment of oil, through pipelines, to distribution points for international commerce must exert upward pressure on crude oil prices and on the prices for derivative products (e.g. gasoline), if only because the uncertainty of oil extraction in Iraq will result in a constriction in international supplies of petroleum. In view of the ubiquitous place of petroleum, as a central source of energy and an important raw material in diverse petro-chemical processes, such a supply shock will negatively impact global expectations for economic growth in the near term. That is to say, if something is not done to constrict the regional gains of ISIS/ISIL and to satisfy international investors that the group is holding on for dear life with no hope of impacting petroleum production in key Iraqi oil fields, then we may be heading toward a global economic recession, steeply impacting growth in the EU, China, and the U.S.
The extent to which ISIS/ISIL could become a serious platform for international terrorism is strictly questionable, notwithstanding ideological commitments by the organization against Western culture. Granted, given sufficient development of international networks supporting particular, well-planned and well-coordinated operations of strategic value (I'm thinking about September 11-type attacks), ISIS/ISIL could strike at Europe, the U.S., Russia, or China, in support of diverse strategic/ideological imperatives (e.g. against U.S. support for the government in Baghdad, in support of Chechens/Dagestani in the Russian Federation, in support of Muslim Uighur separatists in Chinese Xinjiang). Any radical Sunni Muslim movement that could gain access to ready sources of foreign exchange might become the central focus for international networks in support of diverse Muslim insurgents in a variety of regional contexts. In this respect, ISIS/ISIL is directly challenging Al Qaeda, under Ayman al-Zawahiri's adapt strategic leadership, for influence over ethnically focused Muslim movements, susceptible to the appeal of ideological Salafism. Succinctly, this is a reality that many states, especially on the immediate margins of the Muslim world, will have to recognize and deal with.
On the other hand, the same conditions that might make ISIS/ISIL appear as a committed partner to radical Muslim movements outside of Iraq (i.e. doctrinaire fidelity to the Salafist vision, even to the point exercising extreme and unjustifiable cruelty against the faithless/apostates for violation of Sharia law) could, ironically, be their undoing in Iraq and Syria. That is to say, if ISIS/ISIL makes too many enemies among their ex-Ba'athist allies and other populations in Ninawa and Anbar provinces, a reality that already seems to be manifesting itself in the flood of refugees into Baghdad and the Kurdish autonomous region from areas under ISIS/ISIL control, then it may be sowing the seeds for a domestic resistance that could be mobilized on the behalf of the Shi'a government in Baghdad, provided the latter does not respond in kind with a proportional degree of brutality against humanity! In the past weeks, reports have emerged of brutal actions from ISIS/ISIL (on execution of non-ISIS/ISIL rebel fighters in Syria, see "ISIS Crucifies 8 Rebel Fighters, According to Human Rights Group," from Reuters (29 June 2014), reprinted on The Huffington Post, The World Post, at: http://www.huffingtonpost.com/2014/06/29/isil-crucifies-eight-riva_n_5541140.html), including mass executions of Iraqi Army Shi'a prisoners captured at Mosul for espousing beliefs contrary to those practiced by ISIS/ISIL. Such practices may be key for the government in Baghdad and for the U.S. in generating an internal resistance to ISIS/ISIL. Similarly, while ISIS/ISIL has become the dominant, most aggressive anti-Assad resistance group in eastern Syria, its ideological incompatibility with all other resistance groups, even Jabhat al-Nusra, Syria's official Al Qaeda affiliate and ISIS/ISIL's primary Salafist rival, is leading to the group's isolation and may, potentially, create conditions for an anti-ISIS/ISIL coalition among resistance groups in Syria, especially if other high level supporters of the Sunni resistance in Syria (Saudi Arabia, Qatar, etc.) realize that the overall success of this type of Salafist group in Iraq and Syria threatens their own legitimacies if it can palpably exert the claim to foundation of a caliphate. ISIS/ISIL is not helping its case here by actively assaulting other resistance groups in Syria and executing rebel fighters who reject the group's radical Salafism.
Conversely, if strategies intended to ideologically isolate ISIS/ISIL and develop anti-ISIS/ISIL coalitions in both Iraq and Syria actually worked to defeat ISIS/ISIL, I still do not believe that it would be sufficient to resuscitate the project of an Iraqi nation, for reasons that I stated above. Rather, if the U.S. is to become involved in Iraq again, we need to seriously evaluate the current circumstances in Anbar and Ninawa provinces and in eastern Syria from a standpoint that is open to the development of an independent Sunni Islamic Arab state in this region, free from the reach of either Baghdad or Damascus, and open to outside intervention and support to improve the livelihoods of the populations contained within the area. Such a development, as suggested, would have to incorporate the active support of other states in the region, most notably Saudi Arabia and the other Gulf monarchies, to determine the terms under which a government conducive to the needs of both the local populations and the maintenance of the peace with both Iraq and Syria could be established. Succinctly, it would ratify the current reality that ISIS/ISIL, its (transitory) ex-Ba'athist allies in Iraq, and its anti-Assad rivals in Syria have constructed. There is no guarantee that, in the absence of ISIS/ISIL, such a state would not develop its own indigenous brand of Salafism, in turn nutured by Al Qaeda for its own purposes, but, given enough attention by outside backers to resolving economic and ecological issues facing the populations in these regions that, on a certain level, extend to the roots of conflict in both Iraq and Syria, an adequate basis might exist for stabilizing the region and removing the political void that is being filled by radical Salafism.
3. The extended disintegration of Syria provided the fuel for the success of ISIS/ISIL in Iraq. The Assad regime has nothing meaningful to contribute to the resolution of the current situation in the northeastern corner of Syria or in western and northern Iraq, and any interventions on its part can only complicate an already catastrophic situation.
I contributed a post in this blog last year on the conflict in Syria, concerning, for the most part, the use of chemical agents and the international response. In that post, I concluded that the Syrian civil war could go on for another decade and a half or more, with the Assad regime holding Damascus and its immediate suburbs, retaking Aleppo, retaining the coastal Alawite enclaves around Latakia and Tartous, and connecting all of these fragments along thin, well defended logistical corridors. The remainder of the country will be engaged in more or less continuous warfare between the Assad regime and rebels and among the rebel groups themselves. Nothing has changed since then to make me change my mind on the fate of Syria. Pointedly, the country will remain in a semi-permanent humanitarian crisis for the foreseeable future, and the Assad regime, with little danger of being dislodged by either pro-Western or Sunni Islamist/Salafist rebels and with ongoing support from Russia, Iran, and the Lebanese Hezbollah movement, will remain in control of a dramatically shrunken geography of state power.
With this introduction in mind, I recall hearing last week, from diverse sources, that the Assad regime is attempting to intervene both in the conflict between ISIS/ISIL and other rebel groups in eastern Syria and has been engaging in limited airstrikes against ISIS/ISIL in Iraqi Anbar province. In eastern Syria, the regime's efforts appear directed to enabling ISIS/ISIL's success against groups supported more strongly by the West in order to progressively undermine conditions for Western intervention in the Syrian civil war. As such, the government has made the calculation that it can more readily take on ISIS/ISIL in these regions at a later date once Western support for the overthrow of Assad has dried up from a loss of actual combatants for the Western/liberal secularist cause. On the other hand, striking at ISIS/ISIL in Iraq has the dual effect of hindering a potential base for more recruits to the fight in Syria and potentially signaling a willingness of the regime to align itself with the Maliki government in opposing the expansion of ISIS/ISIL in Iraq. As such, I suspect that the Assad regime will attempt to continue a strategy of assisting ISIS/ISIL in Syria and simultaneously attacking it Iraq.
Obvious problems arise from the Assad government's actions here. First, the Maliki government has condemned Syrian intervention across the Iraqi border. It might be that Maliki would, personally, appreciate the assistance from Assad and, in any case, such support would conform to the larger development of an axis of Shi'a power incorporating the Assad government, Hezbollah, the Maliki government and the radical Shi'a movements it tacitly supports (i.e. the Mahdi movement), and Iran. On the other hand, if Maliki wants and hopes to receive the support of the U.S. and other Western powers to defeat ISIS/ISIL, then he cannot vocally and explicitly accept the assistance of a government that is becoming a pariah to the West. In this manner, the development of an integrated response to ISIS/ISIL by the Maliki and Assad governments would force Maliki to undertake a much broader reframing of his international support base, excluding the U.S. and appealing for assistance more directly to Russia and China, perhaps, in an effort to circumvent U.S. policy priorities with respect to Syria. It may be that Maliki will end up pursuing such a diplomatic course in the long run if he chooses to reject Western calls for his resignation (to say nothing of calls for moderation and integration of Sunnis into the government by Grand Ayatolla al-Sistani). In the near term, it may not be possible or practical for him to do so, however. It seems fair to say that the Maliki government will tacitly welcome Syrian airstrikes in Anbar province even as it condemns Assad for violating Iraqi airspace.
Fundamentally, the role of Syria in Iraq and the generalized influence of the Syrian civil war on the present crisis in Iraq brings us back to the historical linchpin for Sunni v. Shi'a conflict in this region, notably, the Shi'a Islamic revolution in Iran. In this respect, any influence of Syria on the situation in Iraq needs to be evaluated broadly in reference to the influence of Iran on the entire region.
4. An explicit and substantial Iranian military intervention in the Maliki government's struggle against ISIS/ISIL in western and northern Iraq would hold the potential for a broad increase and consolidation of radical Shi'a power across the Middle East, from Iran through Iraq, to the Assad regime, to Lebanon. However, such an investment would be very costly in terms of manpower and logistics, would undermine efforts by the President Rouhani to forge a rapprochement with the West over Iranian nuclear development, and, assuming a prolonged struggle with ISIS/ISIL, may introduce political instabilities among Shi'a populations in Iraq and in Iran, threatening the legitimacy of both governments and the legitimacy of the Shi'a Islamic revolution, as a whole.
I made the argument above that the Shi'a Islamic revolution in Iran represents a pivotal moment in the political trajectory of contemporary Iraq. It held enough potential to undermine the pan-Arab Ba'athist ideology of the Iraqi regime in 1979 to induce Saddam Hussein to invade Iran in an effort to destroy the revolution and prevent it from spreading to the Iraqi Shi'a majority. In this regard, Iraqi Ba'athism since the 1980s became synonomous with repression against Iraqi Shi'a to the benefit of the Iraqi Sunni minority. The restoration of Shi'a majority power in Iraq after the U.S. invasion and dismantling of the Ba'athist regime, thus, enacted a new cycle of sectarian rectification - Iraqi Shi'a, under the direction of the Maliki government, are reaping the political and economic rewards of majority rule at the expense of their now excluded and marginalized Sunni "countrymen." If, in certain respects, this rectification implicates the internal evolution of the Iraqi state, from the 1920s to the present, the Iranian Shi'a revolution nonetheless exerts a palpable influence on its execution. Shi'a militias, some of which had a history fighting on the Iranian side in the Iran-Iraq war (e.g. the Badr Brigades), have been enveloped by the contemporary Iraqi Army. More generally, Shi'a radicalism, most strongly reflected by the Mahdi movement and its leader Muqtada al-Sadr, continues to influence the Maliki government, and the partisan position of such entities reflects the legacy of the Iranian revolution.
It seems certain that Iranian entities, like the Quds Force of the Islamic Revolutionary Guards, are already involved in Iraq, possibly training and organizing Mahdi irregulars to engage ISIS/ISIL in retaking areas of Ninawa and Anbar provinces. In important ways, a victory by the Maliki government against ISIS/ISIL in the north and west would be impossible without substantial military and logistical support from Tehran. Moreover, the support or disapproval by Iranian religious authorities, and most critically, Ayatolla Ali Khameni, of Maliki's performance in the effort to include Sunni and Kurdish partisan politicians in the new Iraqi government may be a critical influence forcing Maliki's departure from the upper instruments of the government in Baghdad. Critical appraisals of the Maliki government and calls for inclusion of moderate Sunnis in the new post-election government by such radical figures as Muqtada al-Sadr may reflect, in some degree, the influence of Iranian religious authorities and, in turn, may suggest a community of concerns between Grand Ayatolla al-Sistani and Ayatolla Khameni regarding the greater political stability of the Iraqi state and fears of the implications from the fracturing of Iraq into multiple sectarian pieces. Clearly, Iran is currently far more deeply implicated in the future of Iraq than the U.S., and, whether or not the Obama administration accepts tacit invitations from Tehran to collaborate in developing a resolution to Iraq's Salafist Sunni uprising, it appears certain that Iranian intervention is going to be a factor in Baghdad's efforts to regain control over Sunni areas.
The prospect of greater Iranian intervention in Iraq is relevant because such a move would significantly increase Iranian revolutionary Shi'a power in the Arab world, extending from the Iraqi frontier, through the Assad regime in Syria to Hezbollah in Lebanon. A victory over ISIS/ISIL in Anbar province could be a prelude to direct Iranian intervention on the behalf of Assad in eastern Syria, to permanently defeat ISIS/ISIL in all of its current areas of control and, subsequently, prosecute offensive operations against Jabhat al-Nusra and other sectarian Sunni Salafist and relatively secular anti-Assad forces. If such a scenario appears vaguely conceivable at the present time, it likewise appears certain that the Sunni Gulf states and, especially, the Saudi royal family are not going to stand by and watch radical Shi'a Iran militarily create a consolidated power base in the Arab Shi'a cresent. They will have to intervene aggressively on the behalf of Sunni forces in these areas, perhaps going as far as to engage with militant Salafists/Al Qaeda in order to deny Tehran its long term objectives. Evaluating these circumstances from the standpoint of a higher level geopolitical strategy game, the emergence of a larger Sunni v. Shi'a battlefield extending across northern and western Iraq, through Syria, and into Lebanon would implicate divergent U.S., Russian, and, possibly, Chinese political interests and imperatives on the political organization of the Middle East. In short, we have the potential for a large scale interregional military conflict that is going to have to be addressed.
If the start of a new world war is the worst case scenario for what is currently happening in Iraq, we should also consider other possible outcomes. Notably, what happens if, as a result of stronger than expected opposition from Salafist forces in Iraq and widespread public disapprobation for criminal violence on the part of both sides, the legitimacy of radical Shi'a politics in both Iraq and Iran is undermined? That is to say, if ISIS/ISIL proves much stronger than expected and Iran finds itself invested in a long term sectarian civil war in which both sides are culpable for extreme crimes against humanity, it might shake some of the foundations of the Islamic revolution if millions of Iranians, otherwise apathetic toward the continuity of the Islamic Juridical Guardianship, are stirred to question the country's involvement in a seemingly endless and pointless conflict in Iraq. As unlikely as such a scenario might seem, the potential staying power of ISIS/ISIL in Iraq will rely on the group's capacity to supplant Al Qaeda (or, perhaps, compel al-Zawahiri to concede the necessity of aligning Al Qaeda with ISIS/ISIL against the Shi'a apostates) as the central focus of Salafist militancy in the world and, as such, to command financial support and the imagination of thousands of Sunni jihadis from as far away as Xinjiang or Chechnya or Somalia or northeastern Nigeria. Before we laugh off the idea that the erstwhile Caliph al-Baghdadi will hold out against the Iraqi Army supported by the Mahdi "Peace Brigades" and Iranian Revolutionary Guard contingents, it is worth considering what the political implications of waging a successful effort to defend a separate Sunni state in northern and western Iraq might be for both Baghdad and Tehran.
5. Notwithstanding any implications of a long term conflict between Sunni and Shi'a in Iraq on global petroleum markets (and the potential for derivative consequences on economic growth), the Obama administration has no business whatsoever getting involved unilaterally in the defense of the Maliki government against ISIS/ISIL. The U.S. needs to seriously engage with the EU, Russia, China, and other stakeholders in the Middle East (Turkey, Saudi Arabia and the other Gulf monarchies, Iran, and Israel) to find an amenable course to reesablish peace and stability in Iraq, even if this means the division of the country.
Critically, the U.S. has nothing to gain from either the victory of a Salafist movement in northern and western Iraq or the victory of a radical Shi'a-dominated government in Baghdad, allied with Iran, to displace Sunni Salafists in these regions. Both these scenarios portend negative effects to U.S. policy objectives in the Middle East, to the extent that the central objective of U.S. foreign policy is and has to be nurturing the development of liberal secular, pro-Western democracies in the Arab world. It is certainly unclear that this has historically been our objective - where did the Mubarak regime of Egypt fit in if we were such great defenders of the liberal democratic principle?! Rather, if the U.S. is going to stand up for a principled engagement with the Arab world, then we need to reconsider what our objectives should be, in the face of crises like those going on presently in Iraq and like the lingering disaster that is Syria under Assad. We cannot afford to be driven by the short-sighted self-interests of global financial actors and the major oil companies in the determination of policies toward these countries. And, more importantly, we cannot let the Zionist lobby in Congress continue to shape U.S. policy toward the Arab world and Iran around the policy priorities of Israel and, most specifically, that of the Likud Party.
Emphatically, the U.S. cannot embark on a unilateral course of policy in defense of the Maliki government, even insofar as the alternative appears to be a victory for Salafists and the establishment of a safe haven for international Salafist terrorism. The Obama administration has been right to call for the new post-election government in Baghdad to incorporate a much greater diversity of representation from among Sunni, Shi'a, and Kurdish constituencies, echoing the same message from Grand Ayatolla al-Sistani that is now, likewise, being reiterated by religious authorities in Iran. It was, however, a mistake to send military advisors into Iraq. The Maliki government's fight against ISIS/ISIL is not an American fight and we should not allow it to become one! Such a move brings us closer to conceding that we have a community of interests with Iran in securing political stability in Iraq even if it means enabling the growth of radical streams of Shi'a Islam, conforming to the partisan line of the Iranian Shi'a revolution (e.g. the Mahdi movement). If, in these terms, individuals like Muqtada al-Sadr currently support the integration of moderate Sunnis into the new Iraqi government, I would argue, they are doing so with short term partisan objectives in mind. The ultimate goal of such groups remains the enactment of a Shi'a revolutionary guardianship along Iranian lines and, hence, the abnegation of electoral democracy and parliamentary government by forcing it to bend to the will of theocratic authorities.
In my view, the U.S. needs to engage other stakeholders in the political stability of the larger Middle East region to develop a broader plan on how to deal with the dual crises in Iraq and Syria. Succinctly, I think such discussions must begin with the larger question of whether these states, in their current forms, are viable absent either a perpetual continuation of sectarian violence or massive repression to quell such conflict. I have attempted to make the point in this post, I consider the answer to this question to be an emphatic "no" - the best solution, at present, would be one that appeals to ethnic and sectarian homogenization, with an eye toward the organization of multiple state structures conforming to the will of each discrete population. Iraqi Kurdistan is already well on its way to achieving these ends. How do we achieve the same ends for the Sunni territories in northern and western Iraq and for areas of Syria seeking to break off from rule by Damascus?
It goes without saying that ISIS/ISIL should not be a part of such a resolution and cannot be included in discussions promoting such ends. On the other hand, maybe at some point in the very near future, certain ex-Ba'athist contingents within the alliance that currently rules over Sunni Iraq, discontented with the evident course being followed by ISIS/ISIL, might be willing to talk about the possibilities of establishing a break away state in Anbar and Ninawa provinces, nominally secular and at least potentially open to democratic organization. If support for such an idea does not present itself among the ex-Ba'athists, then maybe other "tribal" leaders in Sunni areas would be willing to move in this direction, at least partly in reaction to what seems certain to be a reign of terror at the hands of ISIS/ISIL. In other words, the preferable course of action to resolve the rise of ISIS/ISIL would involve recourse to the same sort of power brokering with local populations and local stakeholders that preceded the Sunni "Awakening" against Al Qaeda in Iraq in 2006. Only this time, the carrot to local leaders should include a promise never to force them to live under the yoke of a Shi'a dominated government in Baghdad again. The travesty that was the Sykes-Picot agreement needs to be undone in the name of peace and, at least, the possibility of democracy.
The particulars, especially concerning economic development, natural resource management, and responding to the ecological needs of local populations, need to also be addressed to ensure that any new states are constructed in a viable form relative to their emerging population bases. Moreover, arriving at such a situation must involve careful diplomatic maneuvering if the diverse interests of the major Sunni powers (Saudi Arabia and the other Gulf monarchies), Iran, Russia, the EU, and China in the region are to be harmonized. Again, as I argued in my last post on Syria, it is distinctly utopian to think that such a regional restructuring should even be possible, but I think that it is also the only hope for the larger region to avoid the destructive consequences of long term Sunni v. Shi'a conflict that will, no doubt, impose negative effects on the entire world. As such, to the extent that the U.S. is still even capable of exercising some influence as a policy maker and diplomatic force in the Middle East, it would do the world a favor by thinking more creatively about how Iraq and Syria should look, given contemporary realities on the ground, and begin talking to the rest of the world about what needs to be done to get there.
1. Iraq is not a nation - it is an arbitrary colonial-era construct whose future relies on the capacity of individual, culturally-defined groups of stakeholders to realize some benefit by working together within a common government.
This conclusion has to be the starting point for any subsequent reflections on the problems facing the geographic space occupying what was once Mesopotamia and a wide expanse of desert on the southern/western flank of the Euphrates River and on the northern/eastern flank of the Tigris River to the Iranian frontier. As with many other topics on which I have commented in this blog, I want to emphasize my relative lack of knowledge on this subject compared to individuals who have spent the balance of their lives studying the intricacies of Iraqi history. It is my understanding that the political entity within this geographic space was, jointly, a formal political product of the Sykes-Picot agreement, negotiated in 1916 by the French, British, and Tsarist Russian governments concerning the partition of territories governed by the Ottoman caliphate among the allied colonial powers, and of the Treaty of Sèvres in 1920, intended as an imposition of the peace against the Ottoman caliphate, including its political dismemberment by Britain, France, and Greece. Iraq's present political-jurisdictional boundaries were apparently drawn by the Treaty of Sèvres. These boundaries sutured culturally and religiously diverse groups, including Arab Muslims embracing both Shi'a and Sunni practices of Islam, Kurdish Muslims, and a tiny minority of Christian Assyrians that has virtually disintegrated at the present time.
It is my contention here that the conglomeration of these ethnically diverse groups can only be labeled a nation to the extent that each has embodied a generalized sense of commitment to the constitutional process through which the state defined itself as the legitimate embodiment of the political aspirations of a unified sovereign polity. That is to say, we could characterize the Iraqis as a nation if the populations contained by its political-jurisdictional boundaries jointly consented to the establishment of the state by which each individual group could claim a place within the collective political lineage of the nation through which the diverse multitude had, politically/constitutionally, become one. To my knowledge, this liberal-democratic/constitutionalist processual ideal cannot describe the manner in which Britain, as the colonial overlord of the geographic space and exploitative caretaker of Iraqi petroleum, foisted together masses of dissimilar groups into a common jurisdictional entity. Critically, prior to British administration, the same groups were unified under the Ottoman caliphate and, since the initial revolt of Sunnis and Shi'a against British direct rule in the early 1920s, these groups have had some ninety years to forge a sense of nationhood, characterized by a collective, secular political culture opening a space for the identification of shared interests and a shared memory of the evolving course of the country's political, economic, and cultural development. It could have been the case that the awkward conglomeration of ethnic and religious groups residing in the geography defined by the Treaty of Sèvres could have looked at each other more and more like an actual nation, defined by a shared political constitution and a sense that, for all of their cultural differences, each was made stronger by their diversities in relation to their countrymen.
But this isn't what happened, in large part, I would argue, because such a process would have required some semblance of a culturally inclusive democratic/pluralist process. Such a process might have operated on some level distinct from open mass political participation. For example, the rise of the secular, socialist Ba'athist movement in the 1950s might have pulled in Sunni, Shi'a, and Kurdish subsets to forge a conception of national identity transcending individual group belonging, even insofar as democratic involvement by each group was strictly limited within the larger structure of a system that could otherwise be characterized as an oligarchy. Given my commitments to the democratic process, I want to be extremely careful about how I am characterizing the Ba'athist movement in relation to democracy. My meaning more closely approaches the concept of pluralism, as inclusion of multiple distinct groups within political processes in which the shared result reflects participation by all groups in defense of their individual interests, by implicit representation rather than by mass democratic choice. In theory, Ba'athism, espousing secular, pan-Arab nationalism, unity, and a unique, Arab road to socialism, could have been a basis for the unification of Sunni and Shi'a Iraqi Arabs into a common nation. In practice, Iraqi Ba'athism appears to have prioritized Sunni groups. The two principal leaders of Iraqi Ba'athism, Ahmed Hassan al-Bakr and Saddam Hussein, both emerged from the northern Sunni province of Ninawa (both were from the city of Tikrit and were apparently relatives). Moreover, the Kurds remain a continuous outlier to the political process, even as Arab groups espouse ideologies that hold the promise of Arab national (and transnational, pan-Arab) unity. The degree to which the Iraqi Ba'athists, from the 1960s forward, promoted disunity in practice among Arab Iraqis is highly questionable, in the same way that the extent to which the Syrian Ba'athists under the Assad regime intentionally prioritized Alawites to the detriment of Sunnis is questionable. In important ways, the rise of revolutionary Shi'ism in Iran in 1979 turned the tables on Iraqi Ba'athism, making the Iraqi Shi'a into potential enemies threatening the internal order nurtured by secular (or, at least, non-sectarian Muslim) pan-Arab nationalist ideology. Hence, the Iraqi invasion of Iran in an effort to arrest the Shi'ite revolution before it could sever the tender threads of Arab Iraqi national unity.
The feeble idea of an Iraqi nation did not survive the start of the Iran-Iraq war. As much as countless foreign policy analysts have made the valid point that the U.S. invasion of Iraq in 2003 caused a long term destabilization of Iraq and of the larger Middle East region whose effects are being borne in the current crisis, we also have to recognize that, at least since the Ba'athist Saddam Hussein declared himself the mortal enemy of the Iranian Shi'a revolution, the stabilization of Iraq relied on unvarnished sectarian policies, prioritizing the Sunni Arab minority and periodically engaging in brutal repression of the Arab Iraqi Shi'a majority and the Kurdish minority. With this in mind, 1979 appears to have been the critical moment of the rupture in Arab Iraqi nationhood. Acknowledging the fundamental flaws in Nouri al-Maliki's blatantly sectarian government, excluding Sunnis and Kurds from a meaningful role within the government and actively exercising repression by security forces against Sunnis, especially in Anbar and Ninawa provinces, prior to the rise of ISIS/ISIL, it is further necessary to acknowledge that a longer history weighs heavily against the possibilities for an all-encompassing pluralism among the various ethnic and sectarian groups of Iraq. Calls for Maliki's resignation, especially by Grand Ayatolla Ali al-Sistani, and for the formation of a new government with greater Sunni and Kurdish involvement/investment, thus, touch on the larger structure of the sectarian problem in Iraq, but they do not address the very real preconditions that allowed Maliki to come to power and develop a set of policy priorities that would so strongly favor the Shi'a majority at the expense of Sunnis. In this respect, notwithstanding the pressure exerted by Grand Ayatolla al-Sistani as a voice counseling moderation, inclusion of marginalized groups, and fidelity to the project of a unified Iraq in defense of the peace and the protection of the holiest Shi'a shrines (see Alexander Dziadosz and Raheem Salman, "After years off-stage, Iraq's Sistani takes charge," on Reuters (29 June 2014), at: http://www.reuters.com/article/2014/06/29/us-iraq-security-clerics-insight-idUSKBN0F30KX20140629), it would seem that the momentum of Sunni v. Shi'a conflict in Iraq continues to favor a zero-sum resolution by means of armed violence.
It seems that Kurdistan will continue to proceed in the direction of greater and greater regional autonomy relative to Baghdad and that it will continue to emerge as the most transparent, pluralistic, secular democratic regime within the geographic space characterized as Iraq. Outside of this potential bright spot, that needs to be aggressively supported by the West through financial assistance, private capital investment, and, if necessary military aid, the remainder of Iraq appears headed for a brutal split between Shi'a and Sunni, waged by the Iraqi "Army" and the Shi'a Mahdi Army's "Peace Brigades," on the one hand, and by ISIS/ISIL, on the other. In this context, the concept of Iraq is more a hindrance than a blessing, insofar as Sunnis and Shi'a who continue to believe, reflexively, in a unified nation and in their respective birthrights to be masters of that nation will shed enormous volumes of blood to impose their will over their opponents. If it is a fair representative statement on the intractable character of differences between Iraqi ethnic groups, Sunni and Kurdish parliament members have walked out of meetings intended to establish a new government after elections last April because the majority Shi'a National Alliance have failed to advance a replacement as prime minister for Maliki (see Rasheem Salman and Oliver Holmes, "Sunnis, Kurds abandon Iraqi Parliament after no replacement for Maliki named," on Reuters (1 July 2014), at: http://www.reuters.com/article/2014/07/01/us-iraq-security-idUSKBN0F630G20140701). Peace would be better served by a concession, on all sides, that Iraq does not really exist and that the long term interests of all sides would be satisfied in formal separation.
2. A Victory for ISIS/ISIL in Anbar and Ninawa Provinces and in eastern Syria would be a disaster for the populations of these regions, for the Middle East, and for the world as a whole.
As with many other topics on this blog, I will confess some degree of ignorance on the backstory behind the Islamic State of Iraq and Syria (ISIS)/Islamic State of Iraq and the Levant (ISIL) (I cannot even tell what the appropriate name and acronym is for this group). They have, apparently re-christened themselves simply the Islamic State in the last two days, declaring their leader, Abu Bakr al-Baghdadi, caliph, summoning a connection to a line Muslim politico-spiritual leadership extending back to the foundations of Islam and last associated with the Ottoman caliphate. The grandiose heights now occupied by the group, which currently controls a broad swath of land encompassing much of Anbar and Ninawa provinces in Iraq (including Mosul) and territory extending on the upper Eurphrates valley in Syria approaching Aleppo, apparently constituted itself among leftover partisans of Al Qaeda in Iraq after the U.S. supported Sunni awakening of tribal groups that largely destroyed Al Qaeda's presence in Iraq. The group's rise is a testament to the fact that history deplores a vacuum. The spillover the Arab Spring to Syria, destabilizing the hold of the Assad regime in Syrian northeast/Euphrates valley, enabled Sunni insurgents from Anbar province, tested in combat with U.S. forces in places like Falluja, to seize and hold ground left behind by Syrian security forces, as Assad struggled to hold on to the Damascus suburbs and his logistical lines to the Alawite enclaves on the northern Mediterranean coast. The group's return to Iraq, moreover, and its substantial success at attracting even former Ba'athists into an anti-government coalition attests to the complete failure of the Maliki government in responding to the demands of Sunnis in the north and west for greater inclusion in the determination of state policies and, certainly, for more government employment and a larger share of the benefits from international petroleum trade.
In this respect, certain points need to be acknowledged in considering the rise of ISIS/ISIL in northern and western Iraq and in northern and eastern Syria. First, the predominantly Arab Sunni populations in these regions are by no means necessarily predisposed to the brand of radical Salafism supported by ISIS/ISIL. If, especially in rural areas, these populations might be expected to practice a relatively conservative brand of Sunni Islam, the turn toward Salafism within ISIS/ISIL, other present or former Al Qaeda affiliate organizations, and more or less peaceful organizations like the Muslim Brotherhoods, reflects, to a substantial degree, the interaction/reaction of traditional modes of Sunni Islam with secular/modernist/liberal-and/or-socialist, Western ideologies, a pattern evident in urbanized social formations in the Islamic world. Emphatically, in Syria, such ideologies reflect direct confrontation with the relatively secular nature of the Assad regime and its liberal influence on Islamic practices in urban areas of the country, against which the Salafists express a categorical rejection of Western influences, corrupting the purity of Islamic religious practices.
In the Iraqi context, however, Salafism finds itself in direct confrontation with an entirely distinct Muslim other, the Shi'a revolution and its lingering impact on Iraqi Shi'a, including the lingering effects of Ba'athist suppression of the possibilities for Shi'ite political transformation. The very distinct historical roots, alluding to distinct origins at particular moments in the foundations of Islam, manifest in Sunni Salafism and in the Iranian brand of Shi'a revolution (revolutionary guardianship of Islamic jurists), make each militant approach mutually incompatible. Pointedly, ISIS/ISIL regards Shi'a, Iraqi or otherwise, as apostates, worthy of execution for their false beliefs. As such, the militant religious imperatives of ISIS/ISIL combined with the fundamentally historical/contextual political and economic grievances of Sunni population, particular those of ex-Ba'athists, to shape the development of the current uprising against the Maliki government, with its anchoring in the partisan privileging of Shi'a over Sunnis and Kurds and its tacit acquiescence in the revolutionary political Shi'ism of such figures as Muqtada al-Sadr and the Mahdi movement.
Considered in this manner, Abu Bakr al-Baghdadi is doing something uniquely similar in spirit to the revolutionary seizure of initiative in the Iranian revolution by Ayatolla Ruhollah Khomeini - he is hijacking the political and economic discontents of a repressed, but not otherwise religiously militant, population in order to advance his own religious objective, in this case restoration of the Muslim caliphate and in a rigorously and brutally repressive Sunni Salafist form. In this regard, we need to stop and think for a moment about the consequences of what ISIS/ISIL has so far achieved and what the organization may be able to achieve if it is allowed to establish state institutions and some measure of political legitimacy (a very big if).
A crucial component in this if concerns the capacity of ISIS/ISIL to develop sources of wealth/economic development for local populations in order to both solidify its legitimacy with the populations under its domination and to prosecute its larger objectives relative to struggle against the Shi'a Iraqi regime in Baghdad (both defense of gains and expansion), and this component most critically involves access to petroleum resources and the means to convert such access into revenues and foreign exchange. If it was able to access either southern oil production resources or, more likely, fields in the vicinity of Kirkuk, currently in Kurdish control, then it might be able to create the conditions to constitute a durable state apparatus, ensuring its domination of the upper Euphrates valley and Ninawa and Anbar provinces against both the Shi'a dominated Iraqi regime and the Assad regime in Syria. The most likely avenue of advance for ISIS/ISIL, then, takes it into direct conflict with Kurdish forces to access the norther oil fields around Kirkuk. Before any of this can happen, however, the organization is sure to encounter a counteroffensive by the regime in Baghdad intended to retake Ninawa province, especially Tikrit and Mosul and to push back ISIS/ISIL forces from the immediate periphery of Baghdad. If the organization is capable of retaining its control of areas it currently possesses (again, a hugely big if, considering the large scale mobilization of Shi'a Mahdi irregulars that appears to be taking place), then it may enjoy the freedom to take on areas on the boundary of Kurdish control in the north in order to get at the northern oil fields. Assuming it can do so, it will need to find buyers, which may be a struggle in and of itself.
Even if ISIS/ISIL neither secures access of oil extracting regions in Iraq nor sells oil on the global marketplace, its continued existence as a visible threat to the capacity of the government in Baghdad and the regional authorities in Kurdistan to secure oil extraction for foreign concessions and to achieve transhipment of oil, through pipelines, to distribution points for international commerce must exert upward pressure on crude oil prices and on the prices for derivative products (e.g. gasoline), if only because the uncertainty of oil extraction in Iraq will result in a constriction in international supplies of petroleum. In view of the ubiquitous place of petroleum, as a central source of energy and an important raw material in diverse petro-chemical processes, such a supply shock will negatively impact global expectations for economic growth in the near term. That is to say, if something is not done to constrict the regional gains of ISIS/ISIL and to satisfy international investors that the group is holding on for dear life with no hope of impacting petroleum production in key Iraqi oil fields, then we may be heading toward a global economic recession, steeply impacting growth in the EU, China, and the U.S.
The extent to which ISIS/ISIL could become a serious platform for international terrorism is strictly questionable, notwithstanding ideological commitments by the organization against Western culture. Granted, given sufficient development of international networks supporting particular, well-planned and well-coordinated operations of strategic value (I'm thinking about September 11-type attacks), ISIS/ISIL could strike at Europe, the U.S., Russia, or China, in support of diverse strategic/ideological imperatives (e.g. against U.S. support for the government in Baghdad, in support of Chechens/Dagestani in the Russian Federation, in support of Muslim Uighur separatists in Chinese Xinjiang). Any radical Sunni Muslim movement that could gain access to ready sources of foreign exchange might become the central focus for international networks in support of diverse Muslim insurgents in a variety of regional contexts. In this respect, ISIS/ISIL is directly challenging Al Qaeda, under Ayman al-Zawahiri's adapt strategic leadership, for influence over ethnically focused Muslim movements, susceptible to the appeal of ideological Salafism. Succinctly, this is a reality that many states, especially on the immediate margins of the Muslim world, will have to recognize and deal with.
On the other hand, the same conditions that might make ISIS/ISIL appear as a committed partner to radical Muslim movements outside of Iraq (i.e. doctrinaire fidelity to the Salafist vision, even to the point exercising extreme and unjustifiable cruelty against the faithless/apostates for violation of Sharia law) could, ironically, be their undoing in Iraq and Syria. That is to say, if ISIS/ISIL makes too many enemies among their ex-Ba'athist allies and other populations in Ninawa and Anbar provinces, a reality that already seems to be manifesting itself in the flood of refugees into Baghdad and the Kurdish autonomous region from areas under ISIS/ISIL control, then it may be sowing the seeds for a domestic resistance that could be mobilized on the behalf of the Shi'a government in Baghdad, provided the latter does not respond in kind with a proportional degree of brutality against humanity! In the past weeks, reports have emerged of brutal actions from ISIS/ISIL (on execution of non-ISIS/ISIL rebel fighters in Syria, see "ISIS Crucifies 8 Rebel Fighters, According to Human Rights Group," from Reuters (29 June 2014), reprinted on The Huffington Post, The World Post, at: http://www.huffingtonpost.com/2014/06/29/isil-crucifies-eight-riva_n_5541140.html), including mass executions of Iraqi Army Shi'a prisoners captured at Mosul for espousing beliefs contrary to those practiced by ISIS/ISIL. Such practices may be key for the government in Baghdad and for the U.S. in generating an internal resistance to ISIS/ISIL. Similarly, while ISIS/ISIL has become the dominant, most aggressive anti-Assad resistance group in eastern Syria, its ideological incompatibility with all other resistance groups, even Jabhat al-Nusra, Syria's official Al Qaeda affiliate and ISIS/ISIL's primary Salafist rival, is leading to the group's isolation and may, potentially, create conditions for an anti-ISIS/ISIL coalition among resistance groups in Syria, especially if other high level supporters of the Sunni resistance in Syria (Saudi Arabia, Qatar, etc.) realize that the overall success of this type of Salafist group in Iraq and Syria threatens their own legitimacies if it can palpably exert the claim to foundation of a caliphate. ISIS/ISIL is not helping its case here by actively assaulting other resistance groups in Syria and executing rebel fighters who reject the group's radical Salafism.
Conversely, if strategies intended to ideologically isolate ISIS/ISIL and develop anti-ISIS/ISIL coalitions in both Iraq and Syria actually worked to defeat ISIS/ISIL, I still do not believe that it would be sufficient to resuscitate the project of an Iraqi nation, for reasons that I stated above. Rather, if the U.S. is to become involved in Iraq again, we need to seriously evaluate the current circumstances in Anbar and Ninawa provinces and in eastern Syria from a standpoint that is open to the development of an independent Sunni Islamic Arab state in this region, free from the reach of either Baghdad or Damascus, and open to outside intervention and support to improve the livelihoods of the populations contained within the area. Such a development, as suggested, would have to incorporate the active support of other states in the region, most notably Saudi Arabia and the other Gulf monarchies, to determine the terms under which a government conducive to the needs of both the local populations and the maintenance of the peace with both Iraq and Syria could be established. Succinctly, it would ratify the current reality that ISIS/ISIL, its (transitory) ex-Ba'athist allies in Iraq, and its anti-Assad rivals in Syria have constructed. There is no guarantee that, in the absence of ISIS/ISIL, such a state would not develop its own indigenous brand of Salafism, in turn nutured by Al Qaeda for its own purposes, but, given enough attention by outside backers to resolving economic and ecological issues facing the populations in these regions that, on a certain level, extend to the roots of conflict in both Iraq and Syria, an adequate basis might exist for stabilizing the region and removing the political void that is being filled by radical Salafism.
3. The extended disintegration of Syria provided the fuel for the success of ISIS/ISIL in Iraq. The Assad regime has nothing meaningful to contribute to the resolution of the current situation in the northeastern corner of Syria or in western and northern Iraq, and any interventions on its part can only complicate an already catastrophic situation.
I contributed a post in this blog last year on the conflict in Syria, concerning, for the most part, the use of chemical agents and the international response. In that post, I concluded that the Syrian civil war could go on for another decade and a half or more, with the Assad regime holding Damascus and its immediate suburbs, retaking Aleppo, retaining the coastal Alawite enclaves around Latakia and Tartous, and connecting all of these fragments along thin, well defended logistical corridors. The remainder of the country will be engaged in more or less continuous warfare between the Assad regime and rebels and among the rebel groups themselves. Nothing has changed since then to make me change my mind on the fate of Syria. Pointedly, the country will remain in a semi-permanent humanitarian crisis for the foreseeable future, and the Assad regime, with little danger of being dislodged by either pro-Western or Sunni Islamist/Salafist rebels and with ongoing support from Russia, Iran, and the Lebanese Hezbollah movement, will remain in control of a dramatically shrunken geography of state power.
With this introduction in mind, I recall hearing last week, from diverse sources, that the Assad regime is attempting to intervene both in the conflict between ISIS/ISIL and other rebel groups in eastern Syria and has been engaging in limited airstrikes against ISIS/ISIL in Iraqi Anbar province. In eastern Syria, the regime's efforts appear directed to enabling ISIS/ISIL's success against groups supported more strongly by the West in order to progressively undermine conditions for Western intervention in the Syrian civil war. As such, the government has made the calculation that it can more readily take on ISIS/ISIL in these regions at a later date once Western support for the overthrow of Assad has dried up from a loss of actual combatants for the Western/liberal secularist cause. On the other hand, striking at ISIS/ISIL in Iraq has the dual effect of hindering a potential base for more recruits to the fight in Syria and potentially signaling a willingness of the regime to align itself with the Maliki government in opposing the expansion of ISIS/ISIL in Iraq. As such, I suspect that the Assad regime will attempt to continue a strategy of assisting ISIS/ISIL in Syria and simultaneously attacking it Iraq.
Obvious problems arise from the Assad government's actions here. First, the Maliki government has condemned Syrian intervention across the Iraqi border. It might be that Maliki would, personally, appreciate the assistance from Assad and, in any case, such support would conform to the larger development of an axis of Shi'a power incorporating the Assad government, Hezbollah, the Maliki government and the radical Shi'a movements it tacitly supports (i.e. the Mahdi movement), and Iran. On the other hand, if Maliki wants and hopes to receive the support of the U.S. and other Western powers to defeat ISIS/ISIL, then he cannot vocally and explicitly accept the assistance of a government that is becoming a pariah to the West. In this manner, the development of an integrated response to ISIS/ISIL by the Maliki and Assad governments would force Maliki to undertake a much broader reframing of his international support base, excluding the U.S. and appealing for assistance more directly to Russia and China, perhaps, in an effort to circumvent U.S. policy priorities with respect to Syria. It may be that Maliki will end up pursuing such a diplomatic course in the long run if he chooses to reject Western calls for his resignation (to say nothing of calls for moderation and integration of Sunnis into the government by Grand Ayatolla al-Sistani). In the near term, it may not be possible or practical for him to do so, however. It seems fair to say that the Maliki government will tacitly welcome Syrian airstrikes in Anbar province even as it condemns Assad for violating Iraqi airspace.
Fundamentally, the role of Syria in Iraq and the generalized influence of the Syrian civil war on the present crisis in Iraq brings us back to the historical linchpin for Sunni v. Shi'a conflict in this region, notably, the Shi'a Islamic revolution in Iran. In this respect, any influence of Syria on the situation in Iraq needs to be evaluated broadly in reference to the influence of Iran on the entire region.
4. An explicit and substantial Iranian military intervention in the Maliki government's struggle against ISIS/ISIL in western and northern Iraq would hold the potential for a broad increase and consolidation of radical Shi'a power across the Middle East, from Iran through Iraq, to the Assad regime, to Lebanon. However, such an investment would be very costly in terms of manpower and logistics, would undermine efforts by the President Rouhani to forge a rapprochement with the West over Iranian nuclear development, and, assuming a prolonged struggle with ISIS/ISIL, may introduce political instabilities among Shi'a populations in Iraq and in Iran, threatening the legitimacy of both governments and the legitimacy of the Shi'a Islamic revolution, as a whole.
I made the argument above that the Shi'a Islamic revolution in Iran represents a pivotal moment in the political trajectory of contemporary Iraq. It held enough potential to undermine the pan-Arab Ba'athist ideology of the Iraqi regime in 1979 to induce Saddam Hussein to invade Iran in an effort to destroy the revolution and prevent it from spreading to the Iraqi Shi'a majority. In this regard, Iraqi Ba'athism since the 1980s became synonomous with repression against Iraqi Shi'a to the benefit of the Iraqi Sunni minority. The restoration of Shi'a majority power in Iraq after the U.S. invasion and dismantling of the Ba'athist regime, thus, enacted a new cycle of sectarian rectification - Iraqi Shi'a, under the direction of the Maliki government, are reaping the political and economic rewards of majority rule at the expense of their now excluded and marginalized Sunni "countrymen." If, in certain respects, this rectification implicates the internal evolution of the Iraqi state, from the 1920s to the present, the Iranian Shi'a revolution nonetheless exerts a palpable influence on its execution. Shi'a militias, some of which had a history fighting on the Iranian side in the Iran-Iraq war (e.g. the Badr Brigades), have been enveloped by the contemporary Iraqi Army. More generally, Shi'a radicalism, most strongly reflected by the Mahdi movement and its leader Muqtada al-Sadr, continues to influence the Maliki government, and the partisan position of such entities reflects the legacy of the Iranian revolution.
It seems certain that Iranian entities, like the Quds Force of the Islamic Revolutionary Guards, are already involved in Iraq, possibly training and organizing Mahdi irregulars to engage ISIS/ISIL in retaking areas of Ninawa and Anbar provinces. In important ways, a victory by the Maliki government against ISIS/ISIL in the north and west would be impossible without substantial military and logistical support from Tehran. Moreover, the support or disapproval by Iranian religious authorities, and most critically, Ayatolla Ali Khameni, of Maliki's performance in the effort to include Sunni and Kurdish partisan politicians in the new Iraqi government may be a critical influence forcing Maliki's departure from the upper instruments of the government in Baghdad. Critical appraisals of the Maliki government and calls for inclusion of moderate Sunnis in the new post-election government by such radical figures as Muqtada al-Sadr may reflect, in some degree, the influence of Iranian religious authorities and, in turn, may suggest a community of concerns between Grand Ayatolla al-Sistani and Ayatolla Khameni regarding the greater political stability of the Iraqi state and fears of the implications from the fracturing of Iraq into multiple sectarian pieces. Clearly, Iran is currently far more deeply implicated in the future of Iraq than the U.S., and, whether or not the Obama administration accepts tacit invitations from Tehran to collaborate in developing a resolution to Iraq's Salafist Sunni uprising, it appears certain that Iranian intervention is going to be a factor in Baghdad's efforts to regain control over Sunni areas.
The prospect of greater Iranian intervention in Iraq is relevant because such a move would significantly increase Iranian revolutionary Shi'a power in the Arab world, extending from the Iraqi frontier, through the Assad regime in Syria to Hezbollah in Lebanon. A victory over ISIS/ISIL in Anbar province could be a prelude to direct Iranian intervention on the behalf of Assad in eastern Syria, to permanently defeat ISIS/ISIL in all of its current areas of control and, subsequently, prosecute offensive operations against Jabhat al-Nusra and other sectarian Sunni Salafist and relatively secular anti-Assad forces. If such a scenario appears vaguely conceivable at the present time, it likewise appears certain that the Sunni Gulf states and, especially, the Saudi royal family are not going to stand by and watch radical Shi'a Iran militarily create a consolidated power base in the Arab Shi'a cresent. They will have to intervene aggressively on the behalf of Sunni forces in these areas, perhaps going as far as to engage with militant Salafists/Al Qaeda in order to deny Tehran its long term objectives. Evaluating these circumstances from the standpoint of a higher level geopolitical strategy game, the emergence of a larger Sunni v. Shi'a battlefield extending across northern and western Iraq, through Syria, and into Lebanon would implicate divergent U.S., Russian, and, possibly, Chinese political interests and imperatives on the political organization of the Middle East. In short, we have the potential for a large scale interregional military conflict that is going to have to be addressed.
If the start of a new world war is the worst case scenario for what is currently happening in Iraq, we should also consider other possible outcomes. Notably, what happens if, as a result of stronger than expected opposition from Salafist forces in Iraq and widespread public disapprobation for criminal violence on the part of both sides, the legitimacy of radical Shi'a politics in both Iraq and Iran is undermined? That is to say, if ISIS/ISIL proves much stronger than expected and Iran finds itself invested in a long term sectarian civil war in which both sides are culpable for extreme crimes against humanity, it might shake some of the foundations of the Islamic revolution if millions of Iranians, otherwise apathetic toward the continuity of the Islamic Juridical Guardianship, are stirred to question the country's involvement in a seemingly endless and pointless conflict in Iraq. As unlikely as such a scenario might seem, the potential staying power of ISIS/ISIL in Iraq will rely on the group's capacity to supplant Al Qaeda (or, perhaps, compel al-Zawahiri to concede the necessity of aligning Al Qaeda with ISIS/ISIL against the Shi'a apostates) as the central focus of Salafist militancy in the world and, as such, to command financial support and the imagination of thousands of Sunni jihadis from as far away as Xinjiang or Chechnya or Somalia or northeastern Nigeria. Before we laugh off the idea that the erstwhile Caliph al-Baghdadi will hold out against the Iraqi Army supported by the Mahdi "Peace Brigades" and Iranian Revolutionary Guard contingents, it is worth considering what the political implications of waging a successful effort to defend a separate Sunni state in northern and western Iraq might be for both Baghdad and Tehran.
5. Notwithstanding any implications of a long term conflict between Sunni and Shi'a in Iraq on global petroleum markets (and the potential for derivative consequences on economic growth), the Obama administration has no business whatsoever getting involved unilaterally in the defense of the Maliki government against ISIS/ISIL. The U.S. needs to seriously engage with the EU, Russia, China, and other stakeholders in the Middle East (Turkey, Saudi Arabia and the other Gulf monarchies, Iran, and Israel) to find an amenable course to reesablish peace and stability in Iraq, even if this means the division of the country.
Critically, the U.S. has nothing to gain from either the victory of a Salafist movement in northern and western Iraq or the victory of a radical Shi'a-dominated government in Baghdad, allied with Iran, to displace Sunni Salafists in these regions. Both these scenarios portend negative effects to U.S. policy objectives in the Middle East, to the extent that the central objective of U.S. foreign policy is and has to be nurturing the development of liberal secular, pro-Western democracies in the Arab world. It is certainly unclear that this has historically been our objective - where did the Mubarak regime of Egypt fit in if we were such great defenders of the liberal democratic principle?! Rather, if the U.S. is going to stand up for a principled engagement with the Arab world, then we need to reconsider what our objectives should be, in the face of crises like those going on presently in Iraq and like the lingering disaster that is Syria under Assad. We cannot afford to be driven by the short-sighted self-interests of global financial actors and the major oil companies in the determination of policies toward these countries. And, more importantly, we cannot let the Zionist lobby in Congress continue to shape U.S. policy toward the Arab world and Iran around the policy priorities of Israel and, most specifically, that of the Likud Party.
Emphatically, the U.S. cannot embark on a unilateral course of policy in defense of the Maliki government, even insofar as the alternative appears to be a victory for Salafists and the establishment of a safe haven for international Salafist terrorism. The Obama administration has been right to call for the new post-election government in Baghdad to incorporate a much greater diversity of representation from among Sunni, Shi'a, and Kurdish constituencies, echoing the same message from Grand Ayatolla al-Sistani that is now, likewise, being reiterated by religious authorities in Iran. It was, however, a mistake to send military advisors into Iraq. The Maliki government's fight against ISIS/ISIL is not an American fight and we should not allow it to become one! Such a move brings us closer to conceding that we have a community of interests with Iran in securing political stability in Iraq even if it means enabling the growth of radical streams of Shi'a Islam, conforming to the partisan line of the Iranian Shi'a revolution (e.g. the Mahdi movement). If, in these terms, individuals like Muqtada al-Sadr currently support the integration of moderate Sunnis into the new Iraqi government, I would argue, they are doing so with short term partisan objectives in mind. The ultimate goal of such groups remains the enactment of a Shi'a revolutionary guardianship along Iranian lines and, hence, the abnegation of electoral democracy and parliamentary government by forcing it to bend to the will of theocratic authorities.
In my view, the U.S. needs to engage other stakeholders in the political stability of the larger Middle East region to develop a broader plan on how to deal with the dual crises in Iraq and Syria. Succinctly, I think such discussions must begin with the larger question of whether these states, in their current forms, are viable absent either a perpetual continuation of sectarian violence or massive repression to quell such conflict. I have attempted to make the point in this post, I consider the answer to this question to be an emphatic "no" - the best solution, at present, would be one that appeals to ethnic and sectarian homogenization, with an eye toward the organization of multiple state structures conforming to the will of each discrete population. Iraqi Kurdistan is already well on its way to achieving these ends. How do we achieve the same ends for the Sunni territories in northern and western Iraq and for areas of Syria seeking to break off from rule by Damascus?
It goes without saying that ISIS/ISIL should not be a part of such a resolution and cannot be included in discussions promoting such ends. On the other hand, maybe at some point in the very near future, certain ex-Ba'athist contingents within the alliance that currently rules over Sunni Iraq, discontented with the evident course being followed by ISIS/ISIL, might be willing to talk about the possibilities of establishing a break away state in Anbar and Ninawa provinces, nominally secular and at least potentially open to democratic organization. If support for such an idea does not present itself among the ex-Ba'athists, then maybe other "tribal" leaders in Sunni areas would be willing to move in this direction, at least partly in reaction to what seems certain to be a reign of terror at the hands of ISIS/ISIL. In other words, the preferable course of action to resolve the rise of ISIS/ISIL would involve recourse to the same sort of power brokering with local populations and local stakeholders that preceded the Sunni "Awakening" against Al Qaeda in Iraq in 2006. Only this time, the carrot to local leaders should include a promise never to force them to live under the yoke of a Shi'a dominated government in Baghdad again. The travesty that was the Sykes-Picot agreement needs to be undone in the name of peace and, at least, the possibility of democracy.
The particulars, especially concerning economic development, natural resource management, and responding to the ecological needs of local populations, need to also be addressed to ensure that any new states are constructed in a viable form relative to their emerging population bases. Moreover, arriving at such a situation must involve careful diplomatic maneuvering if the diverse interests of the major Sunni powers (Saudi Arabia and the other Gulf monarchies), Iran, Russia, the EU, and China in the region are to be harmonized. Again, as I argued in my last post on Syria, it is distinctly utopian to think that such a regional restructuring should even be possible, but I think that it is also the only hope for the larger region to avoid the destructive consequences of long term Sunni v. Shi'a conflict that will, no doubt, impose negative effects on the entire world. As such, to the extent that the U.S. is still even capable of exercising some influence as a policy maker and diplomatic force in the Middle East, it would do the world a favor by thinking more creatively about how Iraq and Syria should look, given contemporary realities on the ground, and begin talking to the rest of the world about what needs to be done to get there.
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