News from A Region of Hot Spots

My Azeri friends have brought to my attention two interesting news items from Azerbaijan and the large Azeri community in northern Iran. First is that the editor of a leading opposition paper, Bizim Yol (“Our Path”) (and formerly deputy editor of Azadlig [“Freedom”], which ran a story on my visit to Baku earlier this year), was savagely beaten on May 18 and that opposition leaders (such as Ali Kerimli), have pointed the finger at the authorities. (This is not the first time that journalists from the opposition side have been attacked.)

One email from an Azeri news group described the attack thus:

Bahaddin Haziyev, one of the best Azerbaijani journalists and one of the brillian minds of our country, was kidnapped, taken to Masazir lake, severely beaten and left to die almost to death last night by some people. He was deputy editor of Azadlig newspaper and since recently became a editor in chief of Bizim Yol newspaper. His newspaper an himself are very critical of Aliyev’s regime, the most recent series dedicated to caviar/fish mafia of Azerbaijan, portraying that Aliyev senior sacrificed lifes for monopoly in this sector.

Haziyev is in Intensive Therapy in the Emergency hospital. Doctor said that it is miracle that he survived. His leg is broken in five places, he has trauma of head, ribs are broken.

That is what happens to journalists in this country.

It takes real bravery to continue to speak up for freedom when under threat of such violence.

The other is a news story that was reported in the Washington Post about protests against Persian chauvinism among the very large Azeri minority in Iran. Photos are available here (on an Azeri nationalist website).

The cartoon that has caused the furor was published in Iran’s official newspaper (not, as in the Danish cartoons, in a private paper in a country with a free press):

The cartoon, which appeared in Friday’s edition of the official Iran newspaper, showed a boy repeating the Persian word for cockroach in different ways, while a cockroach in front of the boy asked “What?” in Azeri.

The Iranian mullahs may be creating difficult conditions for themselves by alienating, not only many young people (who yearn for what the Eastern Europeans used to call “a normal country”), but major ethnic minorities, as well.

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Scapegoating Milberg Weiss

Saul Levmore is asking the right questions about the Milberg Weiss prosecution here.  “Milberg, who?,” you ask. 

(Warning:  boring lawyer-talk follows.) 

Milberg is the titanic plaintiffs class action firm that was just indicted for paying professional plaintiffs to serve as figureheads for the firm’s class action suits.  Those who love to hate class actions tend to love this prosecution.  But as Levmore asks, what, exactly, is so bad about lawyers paying professional plaintiffs to act as figureheads, anyway?

Hundreds of lawyers hate the firm and they are quick to say that plaintiffs are paid to lie, to agree to settlements that are not in the interest of other class members, to lie about having been consulted about conflict of interest questions, and so forth.  Some of these possibilities seem implausible, or at least somewhat puzzling, in a world in which named plaintiffs are rarely consulted at all, and in which judges must approve settlements (for better or worse) but are hardly accused of paying too much attention to the wishes of the named, nominal plaintiffs. 

Let’s not kid ourselves: class actions are bounty-hunting enforcement actions designed to deter wrongdoing, rather than compensate victims.  Named plaintiffs play a negligible role in these lawsuits, because the suits aren’t brought for their parochial benefit.  The suits are brought to punish the target, not to remedy individual injuries.  The “named plaintiff” is a virtual legal fiction–a stubby appendage of an older system of corrective justice and individual rights which our legal system has, for all intents and purposes, thrown over the side.

Now, I happen to like that old, lost, fundamentally liberal view of the law, in which state coercion is limited to aiding individuals, rather than promoting collective (i.e. state) interests.  But the incentive system set up under our current class action system simply isn’t designed to promote attention to individual remedial interests.  And prosecuting Milberg Weiss for paying kickbacks to figurehead plaintiffs isn’t going to change that fact.  

Radical, systemic solutions are necessary. One is to force lawyers to recruit not just named plaintiffs, but class members, by requiring absent class members to affirmatively “opt in” to the class litigation–thereby forcing lawyers to sell their representation to entire class.  By making class actions fully contractual, lawyers may act less as self-interested regulatory bounty-hunters and more like the advocates-for-hire of old.  See this piece for further discussion. 

But this is a solution that our political system can’t stomach.  And so we’re left, instead, with the Milberg prosecution:  a symbolic, ineffectual fit of pique.

The Greatest Deliberative Body?

Columnist Robyn Blumner has nice things to say about our new study, Power Surge, and she takes Congress to task for doing nothing: 

The Republican leadership in Congress is standing by while its house is being pillaged. The power to write federal laws is Congress’ alone. The president’s duty, as expressly stated in the Constitution, is to faithfully execute the laws he signs, not to add asterisks on parts he intends to ignore.

Senate Majority Leader Bill Frist and House Speaker Dennis Hastert are joining in their own emasculation when they utter not a peep during this bloodless coup. I don’t know why Republicans have a reputation for strength. When blindly supporting a president from your own party takes precedence over guarding Congress’ historic role, “Republican leadership” becomes an oxymoron.

It is not just liberals who have recognized the danger. I challenge anyone to read an important new report by the libertarian Cato Institute (www.cato.org) and not be chilled. “Power Surge: The Constitutional Record of George W. Bush” is an unblinking 28-page analysis of our slow devolution into autocracy. Its message can be summed up with this quote: “Under (the president’s) sweeping theory of executive power, the liberty of every American rests on nothing more than the grace of the White House.”

A meek and pliant Congress is allowing this new paradigm to take root.

One can almost hear Speaker Hastert trying to defend himself: ”Look, I said something about executive branch overreaching just this morning.  Ya know, I’ve signed off on some extraordinary police powers over the years, but there’s gotta be a limit to those powers.  The Constitution is clear: The right of members of Congress to be secure in their offices and homes shall not be violated!”

Requiem for 5-4 Supreme Court Decisions

Chief Justice Roberts gave an address at Georgetown in which he lauds the virtues of deciding cases, where possible, narrowly and unanimously:

 ”If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case,” Roberts said. “Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.”

Its not clear that Roberts’ prediction (that consensus on the Court yields clarity, precision, and narrowness) is right.  Consensus-building in Congress, another multi-member voting body, is purchased at the price of legal fuzziness.  The more amorphous and open-ended the statute–the more the statute defers tough questions–the more members of Congress agree to add their names to it. 

While consensus building on the Supreme Court is a simpler prospect, there’s no reason to think the same basic dynamic won’t apply here too:  Supreme Court justices will purchase broad agreement at the price of clarity, harming the rule of law. 

Indeed, as I discuss at the end of this online debate, this may be the lesson of one of Roberts’ earliest opinions (in Rumsfeld v. FAIR).  There, the Court was asked to decide whether Congress violated law schools’ free speech rights by threatening to withdraw federal funding unless the schools sponsored JAG recruiters on campus.  The Court unanimously rejected the law schools’ First Amendment claims.  But in the course of doing so, it reached a question it didn’t have to reach:  the scope of deference owed to Congress when it regulates “military affairs.”  Worse, the Court’s cursory discussion of military affairs deference is exceedingly unclear and could be read to mean that judicial enforcement of the Bill of Rights is at a vanishingly low ebb when Congress raises and supports armies.  

As even the National Review admits, this aside is troubling and deserves clarification.  But it may also be a by-product of Roberts’ drive for consensus:  Some justices may have joined the Court’s ruling on the First Amendment only if there was some hedge that allowed them to distinguish the First Amendment ruling in a later, different case.  Adding in a bit about military deference may have been the hedge that brought those justices on board, allowing them to rule differently in a case that didn’t involve national security.  But other justices may have been wary about the scope of deference in this area.  Therefore it was necessary to discuss military deference in a vague way in order to belay these fears.  The result:  an opinion that inadvertently muddies the scope of civil liberties in the shadow of military-related legislation, inviting envelope pushing by Congress and the President.

The lesson:  Sometimes being narrow requires hedging.  And sometimes consensus requires wishy-washiness.  Hedging and wishy-washiness in turn make the law less clear.  That may give government officials more discretion to boss us around, while leaving the rest of us in the dark about the scope of our rights.

Misinformation on Iran

Last week, Canada’s National Post ran a revolting and disturbing report that the Iranian majlis had passed a law instituting “separate dress codes for religious minorities, Christians, Jews and Zoroastrians, who will have to adopt distinct colour schemes to make them identifiable in public.”  Perhaps the most disturbing aspect of the story was that 

Religious minorities… will also have to wear special insignia, known as zonnar, to indicate their non-Islamic faiths. Jews would be marked out with a yellow strip of cloth sewn in front of their clothes while Christians will be assigned the colour red. Zoroastrians end up with Persian blue as the colour of their zonnar. 

Several news outlets and blogs picked up on the story, and the New York Post ran the original column under the headline “Iran OKs ‘Nazi’ Social Fabric.” 

As it turns out, however, the reporting appears to be false.

The National Post ran a story backing away from its original claims

Sam Kermanian, of the U.S.-based Iranian-American Jewish Federation, said in an interview from Los Angeles that he had contacted members of the Jewish community in Iran – including the lone Jewish member of the Iranian parliament. 

They denied any such measure was in place. 

Mr. Kermanian said the subject of “what to do with religious minorities” came up during debates leading up to the passing of the dress code law. 

“It is possible that some ideas might have been thrown around,” he said. 

“But to the best of my knowledge the final version of the law does not demand any identifying marks by the religious minority groups.” 

The New York Sun similarly admitted that “The National Post story turned out to be incorrect”: 

Over the weekend, the representative of Iran’s Jewish community in the Iranian legislature, Maurice Motamed, denied that the proposed dress code changes would require minorities to wear distinctive clothing or badges. The chairman of the parliament’s cultural committee, Emad Afroogh, also told wire services that the initial reports of such restrictions were “worthless.” 

A summary of the legislation that appeared on the Majlis Web site contained no specific language designating special dress codes or markers for minorities, either.  

Mr. Motamed’s claims were actually stronger than the Sun indicated:

“Such a plan has never been proposed or discussed in parliament,” he said. “Such news, which appeared abroad, is an insult to religious minorities here.”

CBS News outlined its own decisionmaking process, and why it decided against running with the story

CBS News Radio has also decided against running the story, according to Exective Producer Charlie Kaye. “There are too many red flags here,” he says. “The best we can determine is this has originated with Iranian dissidents in Canada. We have spoken to a CBS News correspondent just back from Iran and her producer, we’ve spoken to the Iranian mission to the UN, we’ve spoken to our State Department Reporter Charlie Wolfson, and at this point we’re not comfortable putting it on the radio.” 

Amir Taheri, the author of the original article, has now issued a classic non-denial denial through his PR firm, Benador Associates.

The Iranian government is reprehensible enough on its own.  The awful policies enacted by Tehran are too numerous to count.  (The very fact that the government is working on legislation concerning the way people dress being a good example.)  But irresponsible reporting that leads casual observers to believe that Iran is directly drawing on Nazi Germany for the crafting of its social policies is incredibly detrimental to the debate over US policy. 

Thanks to blogger Jim Henley for doing the digging on this. 

The Veterans Administration and Data Privacy

I woke up this morning to learn that I might be one of the more than 26 million veterans whose personal information - including name, social security number, and date of birth - is now in the hands of a (presumably) common thief. I won’t be certain that I am one of the individuals affected until I receive notification in the mail from the Department of Veterans Affairs. But I’m reasonably sure, given that I joined the service after 1975, that my personal information has now been compromised.

The Washington Post is certainly correct that this is a case of “incompetence” – the VA employee in question removed the data to his home, from whence it was stolen. The Post editors note:

Mr. Nicholson says that the employee was not authorized to take this information home, but his department clearly failed to do enough to enforce its own guidelines. It now promises to restrict access to sensitive data to those who need it and to conduct background checks on those who do. It’s extraordinary that this approach did not prevail already.

It is indeed. But the larger point is this: If we depend upon government to defend us from compromises of our personal information, and if we assume that such violations are most likely to be perpetrated by negligent, incompetent or mendacious individuals in private firms, then who is to protect us from negligence, incompetence or mendacity on the part of government officials?

In the case of the private firms, I retain some capacity for limiting the scope of my liability by tearing up that credit card application, or by hanging up on the telemarketer trying to sell me (another) home equity loan. Meanwhile, I subjected myself to a degree of scrutiny that most Americans avoid when I joined NROTC in 1985, and the active duty Navy in 1989. In a sense, I “opted in” and my name appears in a VA database. On the other hand, most Americans “opted out” by having never served in any branch of the military; and in this particular case, their personal data is not at risk. 

But unlike credit card solicitations and telemarketers, letters and phone calls from the federal government cannot be ignored, meaning that Americans are not always afforded the opportunity to opt in to a particular database. Nearly every American has a social security number, most have filed federal income taxes, and millions of American males are required to register with the federal government under the Selective Service Act. Each of these cases involve an obligation under the law; choosing to opt out is a criminal offense.

So I ask again: Given that we cannot limit our liability without penalty of fine or imprisonment when the government demands personal information from us, who protects us from identity theft when the government is at fault?