A World of Knowledge

It is odd that Americans are so reluctant, if not hostile, to looking abroad for ideas about how to do things, such as education, voting methods, healthcare, etc. The principles and ideas that underpinned this nation’s founding did not emerge from nowhere: They were inspired by, or even directly drawn from, Enlightenment thinkers from across Europe; certain elements of British law and government (ironically), such as the Magna Carta and English Bill of Rights; and of course the Greeks and Romans, from whom we borrowed specific methods, institutions, terminology, and even architecture. (The U.S. Senate is explicitly inspired by the original Roman Senate, with senatus being Latin for council of elders.)

Americans make up less than five percent of humanity. The U.S. is one of nearly 200 countries. Its history as a nation, let alone as a superpower, is a relative blink in time; as a point of reference, the Roman-Persian wars lasted over 600 years, nearly three times America’s lifespan. Conversely, many countries are much younger, including most of the world’s democracies, providing fresher or bolder perspectives on certain issues not addressed or contemplated by our more conservative system.

Given all that, it stands to reason that someone, somewhere out there, has done something that we have not thought of or figured out, something worth studying or implementing. It is statistically unlikely that we are the only people or nation to know everything, giving our narrow slice of time, humans, and experience. The fact that so many innovators, inventors, and other contributes this country have come from all over the world proves the U.S. has always tacitly accepted the idea that the rest of the world has something to offer.

In fact, this would be in accordance with the vision of most of the nation’s founders, who were far from nationalistic. Their debates, speeches, and correspondences reveal them to have been fairly worldly folks who were open to foreign ideas and perspectives and sought to integrate the country into the international system. From Jefferson’s cherished copy of the Muslim Koran, to Franklin’s open Francophilia and Madison’s insistence that we respect global public opinion and norms, the supposed dichotomy between patriotism and internationalism is a false one at odds with one’s service to the nation.

It is all the more ironic because one of the few schools of philosophy to originate in the United States was pragmatism, which emerged in the 1870s and postulated, among other things, that people promote ideas based on their practical effect and benefit (i.e., regardless of their national or foreign origin). It should not matter where our solutions to certain problems come from it matters that they are solutions, and thus beneficial to our community, in the first place.

Patriotism v. Globalism?

Americans have created this false dichotomy between patriotism and “globalism”, as if caring about international law, global public opinion, and the ideas of other nations is somehow intrinsically “un-American”. This would have been absurd to the Founding Fathers, who by today’s standards would be labeled globalist elites.

None other than James Madison, the father of the constitution, insisted that “no nation was so enlightened that it could ignore the impartial judgments of other nations and still expect to govern itself wisely and effectively”. In Federalist 63, he stressed the importance of respecting the consensus views of other countries and even believed that global public opinion could help keep ourselves in check:

An attention to the judgment of other nations is important to every government for two reasons: The one is, that independently of the merits of any particular plan or measure, it is desirable on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy: The second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion, or momentary interest, the presumed or known opinion of the impartial world, may be the best guide that can be followed.

Madison even adds that America would flourish if it considered the judgments and views of the world:

What has not America lost by her want of character with foreign nations? And how many errors and follies would she not have avoided, if the justice and propriety of her measures had in every instance been previously tried by the light in which they would probably appear to the unbiassed part of mankind?

Madison was far from alone in this view. Most of the founders, including Alexander Hamilton, John Adams, John Jay, and Thomas Jefferson, shared this sentiment, which is reflected in the U.S. Constitution. The Supremacy Clause states that international treaties are the supreme law of the land, even superseding conflicting domestic laws. The little known Offences Clause commits Congress to safeguard the “law of nations”, which we now cause international law. The Supreme Court has consistently upheld America’s commitments to international law; in one of its first cases, Ware v. Hylton, it ruled that the U.S. was bound by the terms of its peace treaty with Britain—even if it meant striking down a patriotic but conflicting state law. Many other cases—Missouri v. Holland, U.S. v. Curtiss-Wright, and The Paquete Habana, among others—followed suit.

Back in Madison’s day, most nations were monarchies in some form. Yet even then Americans saw the merit in garnering their respect or learning from them. Now that we have a more diverse community of nations—including dozens of democracies and allies—we have even more reason to take seriously our commitments to the world and our openness to its ideas.

German Policing

The national discussion on U.S. policing has me thinking about my semester seminar with Leipzig University, where we worked with German law students to do a comparative analysis on each country’s approach to certain policies and legal issues. I’ve also been to Germany a few times and seen firsthand how police operate and are regarded.

Like so much else in Germany, law enforcement is heavily shaped by the past. As in every authoritarian state, the police were a key instrument of Nazi oppression. Cops spied on and arrested political enemies, deported Jews, guarded ghettos, and helped kill more than a million people on the eastern front.

Ironically, some of the postwar reforms of German policing was also influenced by the Allies, including the United States. Since Germany is a federal constitutional republic much like our own, and relatively large and diverse, it offers a fairly good point of comparison. Here are some key points:

➡️ There is no German FBI. Law enforcement is handled at the state level but with similar national standards The closest equivalent—the delightfully named Office for the Protection of the Constitution—cannot make arrests, has limited surveillance powers, and all its actions can be challenged in court or by any German citizen. It is also banned from exchanging information with police except through a dedicated counterterrorism forum.

➡️ Before they even start, police applicants must pass personality and intelligence tests. Cops usually endure up to two and a half years of training, whereas U.S. training can vary wildly from 11 weeks to eight months (the latter being the average). In addition to weapons training, German police are required to visit a concentration camp; take classes in law, ethics, and police history; and learn techniques in deescalation and nonlethal force.

➡️ German police officers do not handle minor infractions like parking tickets nor respond to calls about noise and the like. Non-emergencies are handled by unarmed but uniformed city employees. (This was an idea of the Allies, who wanted to “demilitarize and civilize police matters”.)

➡️ Controversially, German police have what is known as a “monopoly of force”. Gun ownership in Germany is low—with about 5.5 million private firearms, mostly for hunting and sport—and shootings are thus rare. Fewer guns on the streets means officers feel less threatened and are less likely to pull out their weapons or respond with force. Moreover, violence is generally frowned upon in German society; the head of Berlin’s police forced noted that “even drawing a gun can lead to a police officer requesting psychological support.”

➡️ Regardless of the reasons, the use of weapons, let alone fatal police shootings, is rare in Germany. In 2011, German police fired only 85 bullets in total; in the U.S., 84 shots were fired at just one murder suspect in NYC. In 2018, German police fatally shot 11 people and injured 34; in the U.S., with a population four times Germany’s, over 100 times as many people (1,098) were killed by police. One state alone, Minnesota, saw 13 fatal shootings—two more than all Germany (with 88 million people versus Minnesota’s 5.6 million).

➡️ Of course, German law enforcement, like any human institution, is not perfect. Some have questioned whether the country’s approach is too passive, especially in the face of terrorism and political violence. There have been plenty of scandals concerning excessive violence, particularly towards immigrants; hence the country recently had the biggest protests regarding racism outside the U.S.

As one German police academy instructor advised, the most important lesson is that institutions like the police cannot change unless a society’s values change with it. “The police are a mirror of society. You cannot turn the police upside down and leave society as it is”.

The International Standards That Make Policing Better

Though most Americans dismiss if not deride international law, ironically the policing standards developed by the U.N., Council of Europe, and other international bodies affirm if not exceed our vaunted constitutional standards.

Many of the problems with American policing come down to the principle of reasonableness and the doctrine of qualified immunity, which the U.S. has adopted instead of the more common international standard of necessity and proportionality.

Reasonableness allows law enforcement officers to use lethal force when they believe it is “reasonable” to do so (based on their perception of the severity of the crime underway, the threat posed by the suspect, whether arrest is being resisted, etc.). Qualified immunity shields police from being sued except under the narrowest circumstances. In the already-rare chance that violence or death at the hands of police reaches court, the police officer’s assessment dominates, leading most often to “not guilty” verdicts.

The Supreme Court has nearly consistently given police a lot of leeway to use force; I recommend reading Sotomayor’s dissent in Mullenix v. Luna, where she argued that the Court is basically sanctioning a shoot first, think later” approach to policing. Having worked in both prosecution and defense, her perspective is uniquely more comprehensive than other justices.

However, under international law — which governs most other countries — the use of both lethal and “less-lethal” weapons (such as rubber bullets and tear gas) must be restricted to situations of necessity and in proportion to the associated risks. (Contrary to popular belief, rubber bullets and the like are not considered nonlethal; they are defined as “offering a substantially reduced risk of death when compared to conventional firearms”.) Foreign and international courts have found that the use of less-lethal weapons may amount to torture or ill-treatment if not “proportionate to the aim pursued, namely to disperse a non-peaceful gathering” and because the severity of the injuries are not consistent with “the strict use by the police officers of the force.” International law also lacks any equivalent to qualified immunity for police conduct.

The Tiny African Country Taking on a Genocidal Government

Meet Abubacarr Tambadou, the Justice Minister of The Gambia—a tiny African country barely twice the size of Delaware and with fewer people than Miami-Dade County—who is taking on one of the worst genocides in the 21st century.

Under his direction, The Gambia is the only country to file a claim in the International Court of Justice (ICJ) against Myanmar for violating the Genocide Convention through its persecution of the Rohingya Muslims, which has killed tens of thousands and driven out over a million more. Tambadou also convinced the 57-member Organisation of Islamic Cooperation to back the effort, bringing a fourth of the world behind him.

Born in 1972 as one of the middle children of 18 siblings, he considered himself lucky for his middle-class upbringing. He had no intention of studying law—having excelled in sports all his life—but the first offer he got was a law program at a British university. After graduating in the 1990s, he returned home to be a public prosecutor.

At the time, Gambia was ruled by a vicious dictator who frequently killed and tortured real or perceived political opponents. In 2000, when security forces killed over a dozen student protestors, Tambadou was roused into pursuing human rights work.

To that end, he soon left Gambia to join the United Nations’ Tanzania-based International Criminal Tribunal for Rwanda (ICTR), where he successfully prosecuted some of the genocide’s most notorious perpetrators, including former army chief Augustin Bizimungu, who was sentenced to 30 years in prison.

As he told the BBC, what he was doing “was not just prosecuting the Rwandan genocidaires”, but “was a way for us Africans to send a message to our leaders… I saw it as more of an African struggle for justice and accountability than a Rwandan one.”

Sure enough, in 2017, Gambia’s dictator fell after 22 years of power. Opposition leader Adama Barrow took power promising to restore human rights and address corruption, prompting Tambadou to return to help lead this effort.

“Twenty-two years of a brutal dictatorship has taught us how to use our voice. We know too well how it feels like to be unable to tell your story to the world, to be unable to share your pain in the hope that someone out there will hear and help.”

A devout Muslim with a prominent prayer bump on his forehead, Tambadou acknowledged that Islamic solidarity was a factor behind Gambia and the OIC’s actions but emphasized that “this is about our humanity ultimately”.

Indeed, it was after visiting a refugee camp full in Bangladesh of genocide survivors that he was spurred to act. Last spring, Gambia foreign minister pulled out at the last minute from the annual conference of the OIC in Bangladesh, sending Tambadou instead. While there, he joined an OIC delegation visiting overcrowded refugee camps, hearing stories of children burnt alive and women systematically raped; he claimed to even smell the stench of dead bodies from across the border.

“I saw genocide written all over these stories”, he said in an interview, no doubt making the connection between these accounts and what he had learned after ten years prosecuting Rwandan perpetrators for similar crimes.

To that end, his case against Myanmar—which took the world by storm—has for the first time forced its leaders to answer for their alleged crimes. Though the case will no doubt take years to resolve—given the high bar set to prove genocide—the ICJ has since ordered Myanmar to cease its actions against the Rohingya, not buying the argument that it’s simply the result of a broader military conflict.

Yes, I know: It’s a toothless order given the nature of international law. But it’s powerful nonetheless, as many Rohingya themselves agree:

Yet the mere fact that it took place at all counts as a huge moral victory for the Rohingya. For the first time, this group — which has endured decades of systematic discrimination at the hands of its own government — experienced a fair hearing from an impartial tribunal. The power of that realization prompted tearful reactions from Rohingya activists in The Hague.

“It was very emotional to see the military facing charges in a court for the first time,” U.K.-based Rohingya activist Tun Khin told me. “The military have been getting away with human rights violations against us for decades. We have worked so hard for this day.”

And to think it began with a public prosecutor of a small country most have never heard of.

To that end, Mr Tambadou thinks this is the time for The Gambia to reclaim its position on the world stage. “We want to lead by example” in human rights. “The case at ICJ is Gambia showing the world you don’t have to have military power or economic power to denounce oppressions. Legal obligation and moral responsibility exist for all states, big or small.”

Sources: BBC, Reuters, CFR

Switzerland’s Fascinating Constitution

On this day in 1848, Switzerland drafted its first constitution, which created a federal system of government inspired partly by the United States and partly by France — two countries with very different approaches to republican governance.

While most of Europe was experiencing revolutionary uprisings, the Swiss set up system that officially abolished the nobility, established a bicameral legislature called the Federal Assembly (like our House and Senate), and combined centralized authority with significant autonomy for states and cities (the Swiss equivalent to a U.S. state is called a canton).

Thus, Switzerland—which even in the 13th century had set up a quasi-federal form of government—became one of history’s oldest constitutional republics. Federalism became, and remains, a key unifying ideal for a people divided across different languages, religions, and regional identities (since mountainous countries are notoriously fragmented).

But the Swiss model differed from America’s in two keys ways.

First, their constitution required every amendment to be approved by referendum, i.e. the popular vote. The Swiss balanced representative institutions with what they called “popular rights”: The parliament would do its job, as in any other republican system, but the people could keep them in check.

Second, the constitution had a clause stating that it could be completely rewritten if it was deemed necessary, thus enabling it to evolve as a whole instead of through piecemeal amendments. Thus, when the Industrial Revolution brought about various social and economic challenges (as it did in the U.S. and elsewhere), the Swiss responded in 1891 with a modified constitution that, among other things, allowed the people to initiate and approve constitutional changes themselves, while giving the federal government more responsibility for national security, trade, and the economy.

Direct democracy and federalism remain hallmarks of Swiss political and cultural identify. Swiss citizens may challenge any law passed by parliament if they gather 50,000 signatures against the law within 100 days. Then a national vote is scheduled where voters decide by a simple majority whether to accept or reject the law. Alternatively, any eight cantons can band together and also call for a constitutional referendum on a federal law.

Similarly, the federal “constitutional initiative” allows citizens to put a constitutional amendment to a nationwide vote if 100,000 voters sign the proposed amendment within 18 months. Then, the Federal Council (the Swiss equivalent to the presidency) and the Federal Assembly can supplement the proposed amendment with a counter-proposal, and voters must indicate which proposal they prefer.

Essentially, the people and their representatives directly engage with one another to sort out political questions. Every constitutional amendment must be accepted by a “double majority”: Most Swiss people must approve it, but so do most of the country’s 26 cantons.

Swearing an Oath

In light of the fact that some incoming Muslim congresswomen may be sworn in on a Quran (by Mike Pence no less), it is worth remembering that the U.S. Constitution does not require an oath of office to be sworn on a Bible, or on any religious text for that matter.

Article VI, Clause 3, which covers oaths of office, states that while elected officials in both state and federal governments, as well executive and judicial officers throughout the country, are bound “by oath or affirmation” to support the Constitution, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Of course, we have already had Jewish, Hindu, Buddhist, and Muslim representatives and officials, both in Congress and throughout various other state and federal offices, swear on their respective religious texts (Fun fact: In 2007, Keith Ellison of Minnesota, the first Muslim congressperson, was sworn in on a Quran formerly owned and cherished by Thomas Jefferson.)

But many other officials, both religious and secular, have sworn on nonreligious texts, or nothing at all. John Quincy Adams and Franklin Pierce swore on a book of law; Lyndon B. Johnson was sworn in on a Roman Catholic missal; and Teddy Roosevelt, who had to take the oath in a hurry after William McKinley’s assassination, did without anything, since there was no Bible on hand.

Moreover, many Christians are forbidden by their teachings to swear on anything; both Herbert Hoover and Richard Nixon, who as Quakers could technically not swear on anything, could have “affirmed” rather than “sworn” during their oaths, though it appears they did not do so.

The Offenses Clause and America’s Commitment to International Law

Article I, Section 8 of the U.S. Constitution contains the obscure but significant “Offenses Clause“, which empowers Congress to “define and punish … Offenses against the Law of Nations.” The law of nations was the 18th century term for what we now call international law.

As the time, these “offenses” would have included “attacks on foreign nations, their citizens, or shipping;” failing to honor “the flag of truce, peace treaties, and boundary treaties” (including unauthorized entry across national borders); and mistreating prisoners of war. The law of nations also obliged states to prosecute pirates, protect wrecked ships and their crew (regardless of their nationality); and protect foreign dignitaries and merchants in their territory.

Thus, the Framers clearly sought to convey to the world that the U.S. would be a responsible actor among the global community, enshrining in its highest legal instrument a commitment to safeguarding foreign nationals, property, and interests, even if it means ostensibly prosecuting American perpetrators.

Some jurists have argued that this provision, in theory, permits Congress to criminalize private conduct in the U.S. that violates international law.

America and its International Commitments

One of the biggest objections to the Iran Nuclear Deal is that it violated U.S. law because it was never approved by two-thirds of the Senate, as required by the “Treaty Clause” (Art. II, Sec. 2) of the U.S. Constitution. (Contrary to the beliefs of many red-blooded Americans, the Constitution gives ratified treaties the same force as domestic law, per the Supremacy Clause.) However, this reflects a fundamental misunderstanding of the deal, the Constitution, and international law.

First, the deal was never binding: It is classified as a “nonbinding political commitment”, which, by definition, and in contrast to a treaty, requires no congressional approval nor is legally binding. Throughout U.S. history, presidents of all parties have made international agreements without the approval of a supermajority of Senators, either through “congressional-executive agreements”—which are ratified by only a simple majority of Congress—or through “executive agreements”, which are made solely by the president without any congressional involvement.

Between 1946 and 1999 alone, the U.S. completed nearly 16,000 international agreements—of which only 912 (5.7 percent) were treaties ratified by the Senate. (Most were congressional-executive agreements.)

While the Constitution does not explicitly provide for these alternatives, these alternatives have long been considered legitimate. Thomas Jefferson, a globalist sellout if we ever saw one, argued that the Treaty Clause procedure is not always necessary; short-term agreements without Senate approval may be better since “when they become too inconvenient, [they] can be dropped at the will of either party”. Most of the Founders did not objective this, because they recognized pragmatic and expedient reasons to allow the president to make international agreements without going through the long and politicized channels of the legislature.

In fact, when Jefferson sought to purchase the massive Louisiana Territory from France, there was some debate as to whether expanding U.S. territory was legal, since the Constitution was silent on the matter. He ultimately prevailed on the argument—backed by the “Father of the Constitution” James Madison—that the executive’s broad foreign policy powers allowed him to acquire the territory through treaty; he subsequently signed an agreement with France in April, announced it publicly in July, and finally got it ratified by the Senate in October.

The Supreme Court has repeatedly affirmed these powers. In Missouri v. Holland, it held that the federal government can use treaties to legislate in areas that would otherwise fall within the exclusive authority of the states. That is because the Supremacy Clause of the Constitution gives treaties the same force as federal law, which is binding on the states. In American Insurance Association v. Garamendi, the Court reaffirmed that “the President has authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate or approval by Congress, this power having been exercised since the early years of the Republic.”

I’m Going to Leipzig!

I am ecstatic to announce that I and nine wonderful peers were accepted into the Leipzig-Miami Exchange Program for this spring, which brings together students from UM Law and Leipzig University in Germany to collaborate on various topics relating to law and policy. The goal of the program is to learn about each other’s legal systems, exchange ideas, and develop a mutual understanding of our points of views. As an intellectual powerhouse, a central player in European and global affairs, and one of the world’s most robust democracies, Germany is a natural partner in this endeavor. (It is also a fellow federal republic with very strong civil liberties and constitutional protections, given its efforts to move past its history.)

I will be partnering with a German law student to work on a presentation about restorative justice, which is an exciting and promising frontier in criminal justice, rehabilitation, and conflict resolution (hence why it was my top choice, though they were all good). We will incorporate the perspectives and approaches of our respective nations, and hopefully enhance our countries’ knowledge and methodology of restorative justice. I also get to hang out with the German student when they visit this January, then work on a second topic with another German student in May, when I will visit the hidden gem of Leipzig, Germany for a few days.

As someone with aspirations in international law, it goes without saying that I am immensely excited and grateful for the opportunity to develop skills in cross-cultural collaboration, which will help me grow personally and professionally. And as many of you know, I am always eager to get to know people and perspectives from other cultures.

Founded in 1409, the University of Leipzig is one of the oldest universities in the world and the second oldest in Germany. Nine Nobel Prize winners are associated with the university, and its alumni include such eminent thinks as Leibniz, a polymath who made major contributions to math, philosophy, and science; Goethe, widely regarded as one of history’s greatest poets and writers; Leopold von Ranke, considered one of the fathers of the study of history; composers Richard Schumann and Robert Wagner; Tycho Brahe, a Danish astronomer who greatly advanced the study of space; Fredrich Nietzsche, among the greatest influences in modern philosophy; and Angela Merkel, Germany’s current and first female chancellor.

Given its 600 years as an intellectual hub, it is unsurprising that Leipzig played a key role in bringing down the East German regime, initiating a series of spontaneous mass protests that were among the first and most prominent in the country’s history, catalyzing other cities to do the same. Since reunification, Leipzig has become one of Germany’s fastest growing and most dynamic cities, being rated one of the places in the country to live.

Needless to say, I cannot wait to visit such an amazing university and city and broaden my horizons!

Photos courtesy of Wikimedia.