Princeton Library Lecture

 November 18, 2014

Human Rights and Social Justice

I am honored to have been invited to speak today in the Princeton Public Library's NEH-funded 2014-2015 "Spotlight on the Humanities" series. The theme for this year’s lecture series is Justice, Ethics and Public Life. As it happens, this year’s campus-wide theme for TCNJ, where I teach philosophy, is also “Justice.”  I am currently teaching a freshman seminar on social justice and social entrepreneurship. In the spring I will be leading an interdisciplinary faculty-student research seminar on this same theme. So this is my “justice year.”

Last month I took my freshman students on a field trip to Philadelphia where we spent several hours at the National Constitution Center before repairing to a local restaurant to eat lunch and discuss what we had learned. I had given them an assignment before the trip, which was to compare the individual rights recognized in the Bill of Rights (and the subsequent amendments) with those recognized in the Universal Declaration of Human Rights and in the constitution and bill of rights of one other nation. The discussion was lively and the students had many observations to share about rights found in other constitutions but not in ours, and also rights found in our constitution but not in others. Google has made it easy to carry out this kind of comparative constitutionalism by partnering with the University of Texas at Austin and several others to create the website: ConstituteProject.org. 

In our discussion I drew attention to the famous and often imitated Preamble to the U.S. Constitution which reads: “We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Fine sounding ideals, but the devil is, as they say, in the details. In particular, what does Establishing Justice involve? How can we determine whether or not we have succeeded in establishing it?

Philosophers from Plato to Rawls have been theorizing about this question and they have as you might expect produced a rich literature on the topic. It is far too expansive a literature for me to attempt to summarize it here, so I will simply cut to the chase and offer my own definition of a Just Society:

A just society is one in which all members of the community have reasonably secure enjoyment of all of their human rights.

The tag line “All human rights for all.” was the slogan of the 50^th anniversary of the UDHR in 1998 (and is also the title of a recent book on the subject of human rights by Manfred Nowak). In the nearly seven decades since the end of the Second World War no philosophical idea has had a more profound impact on international relations and world politics than the idea of human rights. The idea of human rights, and the accompanying canon of international declarations, treaties, and conventions, which now number more that eighty, is the closest thing we presently have to a to a global standard for social justice.

It is a global standard for social justice in at least two senses. First the contemporary human rights canon articulates a set of universal normative standards that are to be used as a benchmark to assess many of the most important aspects of social justice. It is, in the words of the UDHR, a “common standard of achievement for all peoples and all nations….” Human rights are commonly understood as being those rights which are inherent to the human being. The concept of human rights acknowledges that every single human being is entitled to enjoy his or her human rights without distinction as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Human rights are inalienable, in that no one can have his or her human rights taken away; although they can be limited in specific situations (for example, the right to liberty can be restricted if a person is found guilty of a crime by a court of law). Human rights are held to be indivisible, interrelated and interdependent. The interdependence of human rights is the reason that it is insufficient to respect some human rights and not others. In practice, the violation of one right will often affect respect for several other rights. The contemporary human rights framework provides a template against which one can assess how well different societies do in protecting core social values such as the liberty, equality, security, and dignity of the human person. 

Secondly, the shared belief in human rights is the basis of a global ethical consensus among liberal states, which is shared to a certain extent also among illiberal, authoritarian states, about the requirements of a just world order. This consensus is thin and frayed on certain issues, while in others it is fairly robust; it is, to borrow a term coined by John Rawls, an “over-lapping consensus,” since not all states agree on the relative validity and importance of all of the things that are claimed to be human rights. This should not be surprising since the term “human rights” now signifies a rather large number of distinct ethical and legal norms concerning a large number of social justice issues.

A recent book on human rights [1]has a section titled “Selected Human Rights” including chapters devoted to the following topics: the right to equality and nondiscrimination, the right to life, the right to an adequate standard of living, the right to health, the right to education, the right to work, the right to social security, prohibition of slavery and forced labor, prohibition of torture, right to judicial protection, right to privacy, rights to freedom of expression, assembly, and association, freedom of religion, right to political participation, right to property, and the right to national self-determination.  There are also chapters on the human rights of especially vulnerable groups: children, persons with disabilities, people living with HIV/AIDs, ethnic minorities, LGBT people, indigenous peoples, refugees, and detainees. Even this list does not convey fully the breadth of the contemporary human framework, because unlike some older philosophical theories of justice, the idea of human rights is not a relic in the museum of ideas – it is a dynamic, evolving, and contested ethic-legal paradigm, one that has practical applications by which contemporary forms of injustice can be judged.

The contemporary human rights paradigm has several important roles in moral and political discourse. As Philip Alston noted in a recent Op-Ed in the Washington Post:

….rights language provides a context and a framework, invokes states’ legal obligations, underscores that certain values are nonnegotiable, brings a degree of normative certainty, and makes use of the agreed interpretations of rights that have emerged from decades of reflection, discussion and adjudication. Most important, rights language recognizes the dignity and agency of all individuals and is intentionally empowering.

The primary aim of human rights discourse is to open up domestic policy issues within particular countries to scrutiny by other countries and their citizens, and to assess them by means of common international standards.

Let me illustrate this function by means of a recent example here in the USA – the shooting of Michael Brown in Ferguson Missouri in August. Despite the huge amount of new coverage this tragic event had in the American media, few Americans are probably aware of the way in which it was viewed by citizens in other nations and by domestic human rights NGOs.

Amnesty International issued a report on this incident, On the Streets of America: Human Rights Abuses in Ferguson (October 2014) which called into question the constitutionality of the Missouri statute concerning the use of lethal force by police officers. It also pointed out that the Missouri statute is not consistent with international standards concerning the use of deadly force set out under the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. According to these standards: 

International standards provide that law enforcement officers should only use force as a last resort and that the amount of force must be proportionate to the threat encountered and designed to minimize damage and injury.  Officers may use firearms as a last resort – when strictly necessary to protect themselves or others against the imminent threat of death or serious injury. The intentional lethal use of firearms is justified only when “strictly unavoidable in order to protect life.” (p. 2)

The law in the state of Missouri, however, states that:

 ….a law enforcement officer carrying out an arrest or attempting to prevent an escape from custody is justified in using deadly force only when specifically authorized; or when he or she reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony; or is attempting to escape by use of a deadly weapon; or may otherwise endanger life or inflict serious physical injury unless arrested without delay.

The Missouri stature clearly does not restrict the use of deadly force to cases in which it is strictly unavoidable in order to protect life, but allows it to be used when an officer “reasonably believes” it is necessary to effect an arrest, which is contrary to the international standard which says that “a fleeing thief who poses no immediate danger must not be killed even if that means the thief will escape.”

Some people might react to this criticism, by saying “So what?” America is a sovereign nation that makes its own laws, and we do not have to be held accountable to international legal standards in this or any other matter. But the Amnesty report also cites a decision by the US Supreme Court in which a state law similar to Missouri’s was struck down as unconstitutional: 

The US Supreme Court in Tennessee v. Garner held that Tennessee’s use of deadly force statute was unconstitutional, noting that “Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so ... A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.”

 The Amnesty report provides a powerful critique of the current law in Missouri, and concludes by recommending that the US Department of Justice: “Review and revise guidelines to law enforcement agencies on the policing of protests to ensure that there is compliance at all times with international human rights obligations and with international standards on policing…” (21). This example reveals what was so disturbing about this incident in the minds of many Americans, namely that the fatal shooting of an unarmed black teenagers by police should be illegal. It is not a matter of “white privilege” that the police do not often shoot unarmed white teenagers; rather it is a case of the violation of the human right to equal treatment under law of African-Americans that they frequently are unjustly killed in this way. The case highlights the unequal protection of the law, and also the need for legal reform.

This use of human rights has been highlighted in the writings of moral and legal philosophers such as H.L.A Hart and Amartya Sen. Hart saw human rights as the “parents of law” in the sense, that human rights concerns have often provided the motivation for specific legislation or legislative reform. Examples of this are not hard to come by: think of the women’s suffrage movement of the 19^th century, the civil rights movement of the 20^th century, and the contemporary LGBT rights movement: each of these social movements has invoked the idea of universal human rights as the basis for criticizing existing law, and for pointing the direction for new and more just legislation.

But as Sen notes, “The effectiveness of the human rights perspective does not rest on seeing it invariably in terms of putative proposals for legislation” (The Idea of Justice, 365). The means of advancing human rights need not always take the form of making new law; as ethical claims, human rights norms can also be fruitfully employed as means of moral persuasion by means of advocacy and informed public discussion, involving what Sen calls “open impartiality.” Sen explain this concept by invoking Adam Smith’s idea of an “Impartial Spectator” who advises that we should view our own moral sentiments and intuitions as they might be seen by a moral observer who is at “certain distance from us” and so does not share our same cultural biases, prejudices and customs. It is necessary to strive to gain this impartial perspective in order to be open to possibilities that would otherwise elude our imaginations. Just as Aristotle, brilliant as he was, could not free himself from the ancient Greek cultural norm that women and slaves were naturally inferior persons, so we must guard against cultural parochialism in assessing our own moral beliefs.  Human rights norms provide a way for us to do this.

Allow me to illustrate this aspect of human rights by means of some examples. As many of you may know, every year since 1977 the U.S. Department of State has compiled and published reports on the human rights conditions found in virtually every nation. The most recent report, covering 200 countries and territories for the year 2013 (which can be found here), documents the killings of civilians in Syria, unsafe working conditions in garment factories in Bangladesh, use of excessive force by Egyptian security forces, and laws curbing freedom of expression in Russia, China, and Vietnam, among many other human rights concerns. As someone who has been reading these reports for approximately 30 years, I can attest to the fact that they are well-researched, detailed, and often accurate in their assessment of the human rights conditions in many countries. However, there is one country that these reports do not cover, namely the United States.

A number of other countries that have objected to the United States government compiling an annual critique of their own governments’ human rights records have begun publishing critiques of the US government’s record on human rights. The Peoples Republic of China, for example, issued a stinging critique of the state of human rights in the USA in March 2014.  It begins with the following: 

The State Department of the United States, which posed as “the world judge of human rights,” made arbitrary attacks and irresponsible remarks on the human rights situation in almost 200 countries and regions again in its just-released Country Reports on Human Rights Practices for 2013. However, the U.S. carefully concealed and avoided mentioning its own human rights problems. In fact, there were still serious human rights problems in the U.S in 2013, with the situation in many fields even deteriorating.

The Chinese report goes on to describe abuses such as mass killings, (Sandy Hook), government surveillance (PRISM), solitary confinement, high unemployment, child labor, homelessness, racial discrimination, torture, indefinite detention (Guantanamo), and violations of the human rights of people in other nations (irregular renditions and drone strikes). It should be obvious that the Chinese report is intended as propaganda, but nevertheless, many of the concerns it raises can also be found in the reports of more impartial critics.

In order to get to a position of “open impartiality” on the human rights problems and issues in this country one has to look to other sources. Let me briefly discuss the topics of the most recent Human Rights Watch report and on human rights in the USA and the section on the USA in the Amnesty International Annual Report

The Human Rights Watch report (January 2014) mentions the following human rights issues and concerns in the USA:

·       Extensive government surveillance and infringement of privacy rights
·       Harsh sentencing guidelines and high rates of incarceration.
·       Continued use of the death penalty.
·       Racial disparities in the criminal justice system.
·       Rape and sexual abuse in US prisons.
·       The criminalization of poverty and homelessness.
·       Sentencing juvenile offenders to life in prison w/o the possibility of parole.
·       Abusive conditions in immigrant detention centers
·       Child labor on American farms
·       High levels of sexual violence against women and girls.
·       Indefinite detention of detainees at Guantanamo.
·       Continued secrecy concerning the CIA’s post-9/11 interrogation practices.
·       Lack of judicial oversight for President Obama’s policy of targeted killings abroad, and
·       Harsh prosecutions of whistle-blowers such as Chelsea Manning and Edward Snowden.

The Amnesty country report on the USA for 2013 expressed many of these same concerns, but added lack of accountability (impunity) for crimes under international law committed during the George W. Bush administration, and excessive use of force by police. Both reports also noted some positive developments, such as the abolition of the death penalty in Connecticut, New Jersey, and Maryland, and the US Supreme Court rulings striking down the Defense of Marriage Act and upholding the central provisions of the Affordable Care Act. 

Another window on how the human rights record of the United States is seen differently by people here in America and by “impartial spectators” applying the human rights framework can be had by reviewing Periodic Review Report of the USA under the human rights council, and the response to its report. Since 2006 when the old UN Human Rights Committee was replaced by the Human Rights Council, state members of that body have been obliged to submit periodic reports detailing their compliance with human rights standards. The USA underwent its first universal periodic review in 2010. Its second UPR is scheduled to be delivered to the UN HRC on January 19, 2015.

The 2010 report was written from the perspective of the first two years of the Obama administration, and unsurprisingly trumpeted some of the legislative accomplishments of that period. After some introductory remarks about how the USA was founded on the same ideals of human dignity and inalienable rights as those that form the foundation of the international human rights framework, the report goes on to detail how in the effort to “form a more perfect union” with liberty and justice for all, the government of the USA has enacted: the Lily Ledbetter Fair Pay act of 2009, the Matthew Sheppard and James Byrd Hate Crimes Prevention Act of 2009, the American Recovery and Reinvestment Act, and the Affordable Care Act. It also highlights the president’s executive order ending unlawful interrogation methods and his intention to close secret CIA detention facilities and Guantanamo. The report ends by noting that “Delivering on human rights has never been easy, but it is work we will continue to undertake with determination, for human rights will always undergird our national identity and define our national aspirations.”

At the same time the State department was preparing its report, the UN HRC was also accepting comments and recommendations from domestic human rights NGOs. These comments were compiled into a report published by US Human Rights Network and a summary of these comments was published by UN GA on 10 October 2010. This shadow report by the USHRN gives a rather different picture of the state of human rights in the USA. Here are a few highlights: Amnesty International noted pointedly that the United States had not ratified a large number of international human rights treaties nor ensured their implementation into domestic law including CEDAW, CRC, ICESCR, OPCAT, the International Convention for the Protection of All Persons from Enforced Disappearance, the Rome Statute of the International court, the American Convention on Human Rights, and the Vienna Convention on the Law of Treaties.

The USHRN noted that the US lacks an independent human rights commission to monitor compliance with human rights standards or an effective mechanism designed to ensure a coordinated approach towards the implementation of human rights at the federal, state and, local level. The United States is the only developed Western nation that does not have a national human rights institution. Over 100 countries have them, but not the USA.

American Bar Association (ABA) noted that current US prohibitions of torture lack sufficient status in law, are unclear, and their implementation lacks transparency. In ratifying CAT and the ICCPR, the US attached reservations stating that it “considers itself bound by the obligation … to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as [that] term … means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments” to the US Constitution, which have sometimes been interpreted so broadly as to permit practices such as water boarding which have been consistently regarded as torture under international law.

PEN recommended restoring full privacy protections by ending dragnet and warrantless surveillance. Other recommendations concerned topics such as: Indigenous Peoples, Immigrants and Asylum seekers, Equal Access to Health Care and Education, inadequate housing, unsafe working conditions, and counter-terrorism policies and practices. 

Taking these submissions together with the official US PRR, the Working Group led by France, Japan, and Cameroon, compiled a report on US compliance that included 228 specific recommendations for improvement many of which were based upon the NGO civil society submissions.

In responding to the judgment of the UN Working Group, a somewhat chastened Harold Hongju Koh, who was at the time serving as the chief legal adviser to the US Department of State, concluded his summary of these recommendations by noting: “In closing, let me express our deep appreciation to our own civil society for continuing to work with us to achieve a more perfect union. Civil society has made invaluable contributions to our UPR report and presentation and will continue to be our partner as we consider these many recommendations.”

Both the US DOS submission for 2015 and a shadow report compiled by the US HRN are currently being written. It will be interesting to see how they agree and disagree about the state of human rights and social justice in this country in 2014.

Allow me to conclude with a few caveats. First, I do not wish to oversell the idea that human rights can be seen as a template for assessing social justice. While the human rights framework does cover a great many topics and issues that are reasonably regarded as matters of social justice, it does not (and does not aspire to be) a complete theory of social justice. Human rights are paradigmatically equal rights, and while equal rights are important elements of any theory of social justice, there are also social goods, such as wealth, income, status and other competitive goods that are and should be distributed unequally. For instance, tax policy can be seen as a matter of social justice, but the human rights framework is almost completely silent on this topic. It is also largely silent on the many questions and issues that have to do with the institutional mechanisms for delivering on human rights norms and standards. For example, the ICESCR does tell us that: "Article 12 -  1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". But it does not specify how enjoyment of that right is to be delivered, whether health care should be delivered by means a national health service as in the UK, a national health insurance system as in Canada, by a mixed public/private system such as we have here in America, or by means of any other particular institutional scheme.

Surely questions about wealth and income inequality, taxation, and institutional reforms are legitimate questions of social justice, but they are not within the scope of the human rights paradigm. The current debate about high level of income and wealth inequality sparked by the Occupy Movement and books like Thomas Piketty’s Capital in the 21^st century, are certainly issues about social justice, but the human rights framework says nothing about such matters.

The current human rights paradigm is also mainly silent on questions of environmental justice, for instance issues such as climate change, species preservation, biodiversity, and ecosystem protection. However, there are some theorists who are currently looking into these questions from the perspective of human rights.

Finally, it should be noted that the idea of human rights does not provide a utopian vision of a perfectly just society. When I said at the outset of this talk that my idea of just society is one in which all members of the community have reasonably secure enjoyment of all of their human rights, I did not mean to suggest that I expect there will ever be perfect compliance with all human rights norms and standards. What one can expect is “reasonably secure enjoyment and access to remedy.” This means that most people will feel secure in the enjoyment of their human rights most of the time, and that when violations and abuses occur, as they certainly will, those persons whose rights have been denied  can access to effective remedies. Human rights are not a type of perfectionist ethic which supposes that the goal of social development is to make every society maximally just. Instead, human rights is really a kind of minimalist ethics that attempts to articulate the necessary conditions that a human society must meet in order to be considered minimally just and decent. When understood in this way, the idea of human rights still present a stiff challenge to contemporary societies, one that few, if any, contemporary society has adequately met.

Morton Winston

November 22, 2014

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[1]        Manfred Nowak, Karolina M. Januszewski, and Tina Hofstatter  All Human Rights for All: Vienna Manual on Human Rights.  Intersentia, 2012.

War in the 21st Century

In the George Orwell classic 1984, there is a state of perpetual war between the nations of Oceania, Eurasia and Eastasia. The enemy in the conflict is ambiguous, it could be Eurasia one day, and Eastasia the next. The war has no borders and seems to be taking place everywhere and nowhere at the same time. It is also endless. There are daily news reports of battles and skirmishes but never reports of decisive victories. Meanwhile back at home the citizens are reminded that they are being protected by Big Brother who is constantly tracking their every movement and monitoring their mail and telephone communications. The protagonist, Winston Smith, is part of this system of governmental control; he works for the Ministry of Truth where his job is to rewrite past newspaper articles so that the historical record matches the current party line. He consigns inconvenient truths that do not fit the approved narrative to the “memory hole.”

Sound familiar? It could be a description of the new normal in 2014 where America and its NATO allies are engaged in an endless military struggle against Islamic terrorists in Afghanistan, Pakistan, Iraq, Yemen, Libya, Nigeria, Somalia, Syria and elsewhere. Where the government records every telephone conversation, every fax, every email message, and can track our movements by means of personal digital devices called “smart phones.”  Satellites in space silently survey every corner of the globe and send signals back to secret control centers hidden deep underground beneath nondescript suburban buildings where CIA soldiers direct pilotless drones to rain death down on enemy targets by means of laser-guided missiles.

This state of perpetual war used is to justify psychological and physical control over their populations by keeping them fearful and hateful towards the enemy, while at the same time ensuring that the military-industrial complex and the national surveillance state can continue to siphon billions of dollars from the treasury every year in the name of national defense. In the meanwhile millions of citizens are unemployed, children lack adequate schools, roads and bridges are collapsing, and the provision of essential social services such as ensuring that families have enough to eat or are able to access basic health care are assigned to charities. The legislature is in a perpetual state of conflict between entrenched opposing ideologies with “liberals” insisting that the government grow bigger and “conservatives” insisting that it get smaller.  Polls show that the people are extremely unhappy with the government, but at every election the vote mostly the same politicians back into office. Many people soon become cynical about “politics” and retreat into private pleasures, consoling themselves with alcohol, drugs, gambling, and professional football. Those lucky few who manage to find decent jobs can also entertain themselves by going to strip malls and buying cheap consumer goods made in China.

George Orwell’s dystopian novel was first published in 1949, the same year I was born, only four years after the end of WWII, a war in which an estimated 50 million people died. This war lasted for six years, but it was really a continuation of the WWI which began in 1914 (a century ago), so one can say that the Great World War lasted for 41 years. The year I was born, 1949, also marked the beginning of the Cold War which lasted for another 40 years until 1989. During the Cold War, America and its allies fought an enemy called “communism,” which was not really an enemy so much as it was an ideology that was perceived as a threat to our capitalist economic system.  Since 2001 America has been fighting a “War on Terrorism,” which is not really an enemy so much as it is a set of tactics employed by angry, humiliated men who reject liberal values and lack access to sophisticated weapons.

So, even if one regards the twelve year period between the fall of the Berlin Wall in 1989 and the fall of the Twin Towers in 2001 as a time of “peace” I have lived most all of my 65 years during “wartime.” My own parents, who were born in the 1910’s spent most of their lives during wartime. And it seems likely that my children and other members of the millennial generation, those of you born in the 1980’s and 1990s, will also spend most of your lives during “wartime.”

The historian Margaret McMillian whose work has focused on the causes and effects of WWI, has predicted that instead of WWIII, the 21st century “will be a series of low grade, very nasty wars that will go on and on without clear outcomes, doing dreadful things to civilians in their path.” (New York Times, September 7, 2014, SR 11). Political scientists such as Hedley Bull have been forecasting since the  late 1970s that the international system is evolving into a neo-Medieval pattern in which sovereign territorial nation states no longer possess a monopoly on violence, and political authority is exercised by a variety of violent non-state actors such as gangs, militias, warlords, and terrorist organizations.

In 2014 these predictions are reality. In Nigeria last April Boko Haram kidnapped 250 schoolgirls because they object to secular education. Social media around the world quickly reacted with hashtags of horror, but six months later nobody has rescued them. In Guatemala and Honduras gangs extort and threaten honest citizens who are so afraid they send their children unaccompanied across the US border in hopes of saving them. In Libya rival militias fight over control of Tripoli’s international airport, and Egypt and the U.A.E. send in planes to bomb the ones they don’t like. Russian separatists in eastern Ukraine rebel against a new government in Kiev that leans west, and shoots down an international commercial jetliner with a Russian missile system killing everyone aboard. Russia annexes Crimea and sends its troops across the border to aid the Russian separatists. In Afghanistan thirteen years of NATO military involvement have not eliminated the Taliban. The election that was supposed to set the stage for NATO withdrawal ended up as a fiasco with the charges of rampant voter fraud and election rigging, In Syria, a four year civil war has so far killed 200,000 people, and created 3 million refugees and 6 million IDPs. Israel decides it is time to punish and degrade Hamas in Gaza, so it launches a fifty day assault killing an estimated 2,000 people most of whom are civilians. And finally, for now, over the summer ISIS surged into Northern Iraq and has declared a Islamic Caliphate complete with beheading of infidels whose remains are mounted on crucifixes as a warning to those who would prefer not to convert to their brand of radical Islam.

President Obama was elected in part because he campaigned on a pledge to end the wars in Afghanistan and Iraq. He followed through on his promise to pull US combat forces out of Iraq, but, sobered by the rapid advance and brutality of ISIS, is now is contemplating returning US forces to the region to combat ISIS. His mind focused by the grisly executions of two American journalists, the winner of the Nobel Peace Prize is making the case for more war.

In a speech to the nation on September 10^th 2014, on the eve of the 13^th anniversary of the September 11^th attacks, he offered three reasons, or causus belli, for this renewed war in the Middle East. First, he claimed that “ISIL poses a threat to the people of Iraq and Syria, and the broader Middle East - including American citizens, personnel and facilities.” Second, he said that “these terrorists could pose a growing threat beyond that region - including to the United States.” The third justification was to protect civilians who are being threatened with ethnic cleansing and genocide.

His strategy to degrade and ultimately defeat ISIS involves four points: (1) stepping up airstrikes against ISIL in Iraq and if necessary Syria; (2) increasing intelligence sharing, coordination and support with the Iraqi army and the Kurdish pesh merga mobilizing to counter ISIS in northern and western Iraq and eastern Syria; (3) the US “will redouble our efforts to cut off its funding; improve our intelligence; strengthen our defenses; counter its warped ideology; and stem the flow of foreign fighters into - and out of - the Middle East”. (4) the US will  “continue providing humanitarian assistance to innocent civilians who have been displaced by this terrorist organization,” including Sunni and Shia Muslims who are at grave risk, as well as tens of thousands of Christians and other religious minorities who have been targets of ethnic cleansing and genocide carried out by ISIL.

Of these objectives, the only one that I wholeheartedly support is the last, continuing the military intervention for humanitarian protection purposes. The United Nations Human Rights Council has condemned the abuses committed by ISIL against civilians in northern Iraq in the strongest terms, and has called the brutal persecution of Christian, Yezidi, Turkmen, Shabak, Kaka’e, Sabaeans, and Shia on the basis of their ethnic and religious identities as crimes against humanity. Amnesty International and Human Rights Watch have produced reports that label these crimes as “ethnic cleansing.” And a group of genocide scholars, including myself, have written a letter to the UN Security Council calling these crimes “genocide.” Whichever category of mass atrocity crimes one employs, the acts are clear violations of international criminal law. In my view, people who are threatened with genocide, ethnic cleansing, or crimes against humanity have a right to be rescued by the international community. 

However, concerning the president’s broader strategy to “degrade and ultimately destroy” ISIL, I have some serious doubts and misgivings. While ISIL is certainly a threat to the people of Iraq and Syria, the extent to which it threatens other countries in the region, such as Jordan, Turkey, and Israel has been over-stated. Moreover, there is no evidence that it intends to nor has the capability to carry out terrorist attacks against the USA or Europe. In fact, it seems more likely that mounting US airstrikes against ISIL will make it more rather than less likely that they will contemplate retaliation of this kind. There is no credible evidence that ISIL is planning an attack on the American homeland. Even if it does decide to send some of its fighters who are American or EU citizens to carry out terrorists attacks it is possible to stop them and prevent them from succeeding without going to war against ISIL. Why have we spent billions of dollars on Homeland Security (in additional to national defense, the NSA surveillance programs, the CIA, and other intelligence services) if not to detect and neutralize just such threats? In fact, given the ideology and past behavior of this group, it seems that directing more American airstrikes against them in Iraq and Syria will tend to increase rather than decrease the likelihood that they will decide to try to retaliate against American civilians by dispatching jihadis to travel to Western Europe and North America to carry out terrorist attacks.

The task of pushing ISIL back out of the parts of Iraq it has captured will be formidable, particularly given the fact that it has the support of many of the Sunni tribes in those cities and towns who are more fearful of the Shia militias and the Iraqi Army than they are of ISIL. At least in the case of Iraq, the US has the consent of the government to intervene militarily, and at least one solid ally in the Kurdish Peshmerga forces, so it might be possible to recapture the parts of Iraq that ISIL is now occupying. But the prospects for defeating ISIL in their strongholds in Syria are much dimmer. I have grave doubts about how feasible it is to train and equip the Free Syrian Army to stand up to ISIL in Syria. For the past several years the Obama administration has thought it was a “fantasy” that this fractured and undisciplined force could topple the Assad regime. Why is it now credible to believe that it can fight effectively against both Assad and ISIL?

Many commentators have argued that only way to end the sectarian civil wars in the region is through political negotiations that recognize the legitimate grievances of the Sunni populations of Syria and Iraq. It is not possible to eliminate the threat of Islamic extremism by killing extremists. Unless one addresses the underlying grievances that lead people to support and join extremist groups, we are just playing “whack-a-mole,” or worse, “whack-a-hornet’s-nest.” One cannot resolve grievances born of humiliation and dispossession by killing those who claim to be fighting for those harbor these feelings. Unless we learn this lesson I fear that we will continue to live during wartime.

Morton Winston

Curveballs, Fastballs and Screwballs

Swarthmore Reunion Talk

June 6, 2014

Morton Winston

Curveballs, Fastballs and Screwballs

“Philosophers have hitherto only interpreted the world in various ways; the point is to change it.”
                                       --- Karl Marx

I first heard this famous quote from Karl Marx while I was a philosophy major here at Swarthmore from 1966-1970.  It is from one of his early works, “Eleven Theses on Feuerbach,” which is thought to have been written in 1845 as a preliminary outline for his book The German Ideology. The “Eleven Theses” was not published until 1888 after Marx’s death and the famous quotation from the 11th was chosen to be the epitaph engraved on his tombstone in London’s Highgate Cemetery along with the last sentence of the Communist Manifesto, “Workers of all lands, unite!”

My cohort of Swarthmoreans lived through very turbulent times that included the assassinations of Bobby Kennedy and Martin Luther King, and the death of Courtney Smith. The year I graduated, 1970, was the year of the first Earth Day; it was also the year of the Kent State and Jackson State killings; and it was the year that much of the faculty suspended normal classes and honors exams to protest the bombing of Cambodia and the escalation of the Vietnam war. My classmates and I were rather disruptive, and when we took our diplomas and left campus I suspect that many members of the faculty and administration were glad to see us go.

Those of us who came of age during the late 1960s wanted to change the world and we believed that we had a pretty good idea about what things about the world needed changing: we needed to have racial equality; we needed to have gender equality; we needed to end the war in Vietnam and prevent further stupid American wars; we needed to end environmental pollution and degradation; and we needed to fight for greater social and economic equality.

I personally embraced these causes, as did many of my peers. But in keeping with the baseball analogy that is being used to frame this discussion, there were some runs, hits and errors. Of the four major social movements that arose in the 1960s: the human rights movement, the environmental movement, the economic justice movement, and the peace movement. I would say that the human rights movement has been a qualified success (at least a double), the environmental movement was a single, but the peace and the economic justice movements have been strikeouts.

In the case of the human rights movement, the one in which I have been most active, we threw some hard curve balls at repressive governments (actually we threw boomerangs at them), and eventually we struck out apartheid and the Soviet empire. Not bad. We also made significant progress on racial equality and women's equality, and more recently, LGBTI rights issues. So I think the overall box score here is positive, despite failing to prevent or correct many human rights abuses in other cases (Tiananmen Square, Rwanda, Guatemala, etc.).

I do not recall framing social justice issues in terms of human rights during my time at Swarthmore. I really only discovered human rights as I was finishing my PhD and decided to attend a meeting sponsored by Amnesty International on the campus of Johns Hopkins university. After that meeting in September 1977, several of us decided to start an Amnesty local group in Baltimore, group 109. A few weeks later it was announced that Amnesty International had won the Nobel Peace Prize. I thought to myself, “Is this a great organization or what? All I had to do was attend a few meetings and I already won a Nobel Prize.”

The curve ball that I threw that turned out better than I expected was my human rights work against apartheid. I served as an Amnesty International USA  Country Specialist for South Africa from 1985-1991 and was one of a small group of individuals who coordinated our campaigns and membership actions on South Africa during those years. When, after hundreds if not thousands of hours of dedicated volunteer work for this cause, I saw Nelson Mandela walk out of the gates of Victor Verster Prison on February 11, 1990, I cried. I could not quite believe that after all of the repression and cruelty of apartheid it was finally ending.

In my courses on human rights I introduce my students to the ideas of “boomerang throws” and the spiral model as developed in the work of scholars such as Audie Klotz, Margaret Peck, Kathryn Sikkink, Thomas Risse, Matthew Ropp, Daniel Thomas, and others who have demonstrated that human rights norms have had a powerful influence on state behavior in the decades following the Second World War. State repression is now greeted with intense international criticism from human rights groups like Amnesty and Human Rights Watch and this international solidarity empowers domestic human rights groups to resist and agitate for reform. State authorities who deploy policies of repression have those policies blowback right back in their faces, and repeated boomerang throws can move even some very authoritarian states along a predictable pathway that moves from repression, to denial, to tactical concessions, and then, in some cases, to prescriptive status and rule-consistent behavior. This is the power of human rights; it is the power of ordinary people who are resolute about justice to bring about major progressive political changes. So, we hit for at least two bases with the human rights movement. My own view is that when historians write about the late twentieth century one of the things that will stand out is the progress our generation has made on social equality and human rights.

But the other progressive agendas we had have not fared as well. We did not succeed in stopping the Vietnam War; the army of North Vietnam did that. Nor has the peace movement been successful in preventing other stupid American military adventures. We saw the Iraq War coming and swung hard, but missed. We did not get rid of nuclear weapons, and we still have the military industrial complex that is even more bloated than ever, and now, alongside it, the creation of an enormous and omnipresent national surveillance state. This was a fastball we did not even see coming.

On economic inequality we also struck out. As Thomas Piketty has shown, there has not been progress in reducing economic inequality; quite the opposite, inequality both in income and wealth has been increasing. The recent study by Martin Gilens and Benjamin Page that demonstrated that the United States is in fact an oligarchy whose policies conforms to the interests of the wealthy also came as no surprise. When organized money gets control of the democratic process, as it clearly has in this country, the power of social movements can be thwarted.

This is also quite evident with respect to environmental issues. While the environmental movement that sprang up following the first Earth Day in April 1970 had some early successes with the creation of the EPA and the Clean Water and Clean Air Acts, and then later with campaigns to save the whales and several other endangered species, it has been stymied on the biggest environmental issue of all, global climate change.

Big money interests clearly want to prolong the fossil fuel age as long as possible in order to extract all of the remaining profit, even if that means cooking the planet and dooming future generations to a much hotter and more unstable climate.  We did not, I think, anticipate the lengths to which the fossil fuel interests would go to deny the growing scientific consensus concerning man-made global warming, and how twisted the politics around this issue would become. Climate change denialism was a screwball that we did not know how to handle.

Thus far, the social movements that have been  trying to steer civilization onto a more socially just and environmentally sustainable path has been ineffective in breaking the combined power of big money and big politics to hold back change. Historians of the future will surely note this as well, when they assess the legacy of our generation. The final box score will probably look something like this: (show slide).

This cartoon is obviously paradoxical. The meaning depends on one’s point of view. Realists, those who see the world as it is, will say that they won because they scored more runs than their opponents. But idealists, those who see the world not as it is, but as it ought to be, will affirm that the final score is as it should be. In the words of Teddy Kennedy: “For all those whose cares have been our concerns, the work goes on, the cause endures, the hope still lives, and the dream shall never die.”

American Exceptionalism and the Spider-Man Principle

“With great power there must also come – great responsibility!”

In the aftermath of the 1994 genocide in Rwanda many scholars and policy-makers began to reexamine the concepts of just war and humanitarian intervention with a view to determining whether states have a positive duty to protect people who are being subjected to genocide and ethnic cleansing and other forms of gross human rights violations. The main bar to forceful military intervention to suppress genocide and ethnic cleansing is the Charter of the United Nations which is based on the principle of respect for national sovereignty and does not explicitly recognize humanitarian rescue as one of the grounds for organized military intervention authorized by the Security Council. However, in 2001 an international commission, chaired by Gareth Evans and Mohamed Sahnoun, issued an influential report in which it was argued that there is a need for a new norm of international relations that would place a positive obligation on states to act either alone or in concert to protect innocent people against genocide, ethnic cleansing and other serious imminent human rights catastrophes.

In the context of this debate over the ethics of forceful humanitarian intervention, there was an interesting exchange between Jean Bethke Elshtain and Anthony Burke in which Elshtain, agreeing with the claim that there is a “responsibility to protect” innocent people from serious, widespread, and systematic human rights violations argued that there is also a “presumptive case in favor of the use of armed force by a powerful state or alliance of states who have the means to intervene, to interdict, and to punish in behalf of those who are under assault.”  According to Elshtain, “the burden of this responsibility will be borne disproportionately by the United States, given its unique capability to project power.”  Her argument was that because the United States is a “superpower” with unique military capabilities, it has a greater responsibility than other states to intervene on behalf of people who are threatened with ethnic cleansing or genocide.

President Obama invoked essentially this same argument in his speech last night arguing for a limited, punitive US military strike against Syria as a response to the use of chemical weapons against civilians in the suburbs of Damascus on August 21, 2013,

In response to her argument, Burke accused Elshtain of an “ethical sleight of hand” because she based her argument on the “Spider-Man ethic” under which “The more powerful have greater responsibilities,” for the international protection of human rights. Burke argued that in appealing to this principle she is “brushing aside” the important role of the United Nations and “its capacity for global debate and transparency,” that is, its capacity for open, democratic deliberation. The UN’s deliberative capacity would be by-passed by allowing “coalitions of the willing” to decide among themselves when military intervention was justified. Moreover, he says that ignoring the vital role of the United Nations, and relying on coalitions of powerful states casts the United States in the role of a superhero “with all the absence of moral ambiguity such a metaphor implies.”

In her reply to this charge, Elshtain wrote the following:

With all due respect to Mr. Burke, I do not believe he knows anything about Spider-Man. Any reader of Marvel Comics appreciates that Spider-Man is a tormented superhero and that his life is riddled with moral conflict and ambiguity. Does his loyalty to family and girlfriend take precedence over his duty to protect the innocent from torture and death? How can he be fair to the “domestic” and the “trans-domestic” at the same time? Spider-Man is always in danger of stretching himself too thin; always a bit exhausted; always wondering if he is doing the right thing. I chose Spider-Man rather than, say, Superman precisely because of the perduring conflicts Spidey faces. What a pity that Burke has not familiarized himself with this existential and troubled hero. 

There are several points I should like to make about this exchange. First, Burke seems right in his argument that an appeal to the Spider-Man principle in this context does not by itself settle the question of when, if ever, forcible military intervention by nation states into the territories of other sovereign states in order to prevent or suppress massive human rights violations is morally justified. That a militarily powerful nation such as the United States could have intervened in order to suppress the genocide in Rwanda does not entail that it ought to have intervened. There were other considerations at that time, for instance, the Clinton administration did not want to get embroiled in another African conflict, like Somalia, in which US troops were placed in harm’s way even though there was no vital US national interest at stake. Whether this constitutes a “good excuse” for inaction in Rwanda is another question, but the point here is that there are always going to be other considerations at work. But this is why Elshtain is correct in pointing out that possessing “great power” does not absolve moral agents of moral ambiguity, quite to the contrary, it intensifies their moral quandary.

In the case of humanitarian intervention, no one would seriously expect nations such as Tuvalu or Antiqua to be the first to send its troops into a distant country in order suppress genocide or ethnic cleansing. It is far simpler if you are not very powerful because no one expects you to do very much other than take care of yourself and not harm others. So one might also want to say -- “With little power there comes little responsibility.”

It would also be simpler for Spider-Man if he was a libertarian and did not believe as a matter of principle that he had any positive moral responsibilities of beneficence that he owed to anonymous strangers. If Spider-Man was a libertarian he would mind his own business, probably marry his girlfriend and settle down to a quiet life in the suburbs, displaying his superpowers only as entertainment for children’s birthday parties. His life would be far less complicated if Uncle Ben had told him only that he should not abuse his superpowers, and not also that he should use them to advance the common good. If Spider-Man was not a ‘liberal’ and did not believe that he had positive moral responsibilities of beneficence to come to the aid of suffering humans he would only have to observe negative duties not to use his powers to harm others -- he would not feel obliged to go out of his way to help them when they could use his help. He would not have to go around fighting “evil-doers” all the time. But Spider-Man happens to be an idealist who believes in things like human rights and the rule of law. He believes that his superpowers confer upon him a unique responsibility to protect these values, and that his failing to act on these responsibilities would be wrong.

As Elshtain said, “The United States is itself premised on a set of universal propositions concerning human dignity and equality. There is no conflict in principle between our national identity and universal claims and commitments. The conflict lies elsewhere—between what we affirm and aspire to, what we can effectively do, and what we can responsibly do.”  If the United States believes that it has a moral responsibility to protect and promote freedom and human rights, then its “superpower” status often makes its leaders that they ought to use those powers to protect others from “evil-doers” when they can do so without great cost or risk to the national interests of the United States, and where there are no other “good reasons” why it should not do so.

For instance, it does not seem that the United States regards the lack of UN Security Council authorization for the use of military force to constitute a “good reason” against military intervention in other cases: it used its military powers in Kosovo in 1999, in Afghanistan in 2001, and in Iraq in 2003 without such authorization, and in each of these cases, did so at least in part because of patterns of gross human rights violations in those countries under their previous governments, but also, in part because its leaders also believed that military intervention was in the national interest of the United States. In the first two of these cases, the UN gave these interventions its retrospective blessing -- but not for Iraq, a war that is now widely regarded as the greatest blunder in American foreign policy since Vietnam.  Burke has a point then when he argues that that decision-making by “coalitions of the willing” underpinned by the “idealism and power of the United States,” cannot “match the possibility for greater dialogue, equality, and transparency present in the (admittedly imperfect) United Nations.”  But the deliberative powers of the government of the United States are also imperfect. It's leaders often becomes morally conflicted and wonder whether it is doing the right thing or not doing something it ought to be doing. It sometimes uses its power in ways that cause more harm than good. Being an idealistic superhero (or a superpower) definitely has its downside.

It is not a coincidence that Spider-Man is an American comic book character.While the notion that there is a link between power and moral responsibility has broad intuitive appeal, and the Spider-Man Principle may indeed already have become part of American “folk ethics”, there are some obvious reasons to doubt that this principle is true as it stands; the main ones being that ethical duties do not arise directly from facts, and “can” does not imply “ought”. For instance, it is true that the United States of America can launch a massive nuclear attack that would obliterate Denmark. But it certainly does not follow from the fact that it can do this that it ought to do so. Generalizing from this example, although one has the power to do something does not imply that one ought to do that thing. While correct this logical argument fails to take into account cases in which the prospective agent or agents is already under a moral obligation of some kind to do the thing in question. So, for example (pace Peter Singer), if I have a moral obligation to rescue a drowning child from a shallow pond, and can do so without great cost or risk to myself, then, morally I ought to do it. So, then, if we assume that the United States, like other nations, as a moral obligation to protect innocent people from crimes against humanity, and that it can do so without great cost or risk to itself, then it ought to do so.

This was essentially President Obama's argument in his address last night on Syria. But there is still a problem with this reasoning. The problem is that the agent, in this case the United States, may also be under other moral obligations which would lead to a contrary course of action. Among other things, the US in under an obligation, which is both moral and legal, to obey the international law embodied in the Charter of the United Nations. Attacking Syria without authorization of the UN Security Council when the US is not directly defending itself against an immanent threat, would violate this obligation. This is one powerful counterargument that President Obama did not address last night. This is unfortunate, since then his argument boils down to the dubious claim that the United States, because of it unique military capabilities, may violate international norms in order to enforce them.


References:

1. International Commission on Intervention and State Sovereignty. The Responsibility to Protect. (Ottawa: IDRC, 2001). See also, Gareth Evans and Mohamed Sahnoun, “The Responsibility to Protect.” Foreign Affairs 81, no. 6 (2002).
2. Jean Bethke Elshtain. “International Justice as Equal Regard and the Use of Force,” Ethics & International Affairs, 17, no. 2 (2003), pp. 53-64,
3. Anthony Burke. ”Against the New Internationalism,” Ethics & International Affairs 19, no 2 (2005), p. 80.
4. Jean Bethke Elshtain. ”Response to ’Against the New Internationalism’ Against the New Utopianism,” Ethics and International Affairs, 19, no. 2 (2005), p. 93.

The Syrian Dilemma

Einstein once observed that "No problem can be solved from the same level of consciousness that created it." The present situation in Syria is also essentially insoluble within the current system of international relations. The main reasons for this stem from past failures to reform critical institutions of global governance that, had they been made, may have prevented the civil war in Syria from escalating in the way it has. Having missed the opportunity for reform, and also having missed the opportunity for earlier preventive intervention under the current set of institutional arrangements, the international community, and the United States and its allies, are faced with a set of options that range from very bad to even worse.

In a different world it would not have taken 100,000 deaths and a chemical weapon attack on civilians to galvanize the international community to intervene in the Syrian conflict. It would have happened more than two years ago, after the first signs that the Assad government was willing to employ lethal violence to quash peaceful protests against him. Rather than debating ad nauseum in the UN Security Council, as presently constituted, a decision to deploy an armed rapid response force to Syria would have been made early on, during the pre-conflict phase where the doctrine of the Responsibility to Protect [R2P] is most useful. But this could only have happened had the attempt to reform the make-up and voting powers of the UN Security Council  that was on the table in 2006 had succeeded. The plan put forward by then UN Secretary General Kofi Annan would have expanded permanent membership in the Security Council from the present five to nine or eleven, including important nations such as India, Germany, Japan, and Brazil, and perhaps Nigeria or South Africa or Indonesia. One formula that gained some traction at the time was to select those countries that are largest in terms of population and in terms of the size of their economies. On this basis, India, Japan, Germany, and Brazil would have gotten permanent seats.

More significantly, the proposed reform would have removed the veto power of permanent members, replacing it with the requirement that there be a super majority of two-thirds of permanent members and rotating members needed to authorize any intervention under Chapter Seven of the UN Charter. This was a wise and needed reform of a system that was created in the shadow of WWII and which proved itself incapable of dealing with the changing geopolitical balance of power as early as 1949, when the Cold War began. The reform of the UN Security Council was long overdue by 2006, but it never happened. Why not?

The short answer is that the P-5, led by the United States and China, did not want to dilute their own power. China was adamant in wishing to deny both India and Japan permanent seats on the Security Council, and was also against giving up their veto. Russia also wanted to keep its veto power. Britain and France were somewhat more willing to consider the reform proposals, but the coup de grace to the whole reform effort was administered by the United States in the person of John Bolton, the younger Bush's appointed hatchet man dispatched to kill any meaningful reform at the UN. A task at which he succeeded admirably.

While it is difficult to predict how the Syrian civil war would have played out had these reforms been enacted, it seems clear that the reformed SC could not have been stymied only by the vetoes of Syria's Russian and Chinese allies. There would have been an opening to gaining legitimacy for forceful intervention, rather than the current situation in which the US and its allies know that they cannot hope to do that as long as Russia and China are able to wield their vetoes.

The other major reform of international governance that should have taken place was the creation of a standing Rapid Reaction Force under the control of the UN Security Council. Having such a resource at the disposal of the international community would enable it to avoid mixing great power and domestic politics with international humanitarian rescue. Under the present broken system, each nation must decide whether or not to deploy its own armed forces to any humanitarian intervention, whether consensual or not. Making this decision requires thinking about the issue mainly through the lens of national interests and domestic politics, and these factors generally work against impartial humanitarianism. There were several proposals for creating just such a Rapid Reaction Force in the latter half of the 1990s following the Rwandan genocide and the Bosnia war. Canada and Denmark both presented plans, as did several think tanks. But, again, these proposals never came to anything mainly because of the lack of political will on the parts of the major powers. There was also some popular anxiety about creating a UN army, mainly coming from those on the American political right who have long feared that UN's black helicopters would be coming to take away their guns.

Having missed these opportunities to reform and build institutions of international governance to better meet the challenges of the multipolar world of the early twenty-first century, policy makers in leading nation states are left with very poor choices about how to deal with civil conflicts that turn into humanitarian nightmares. None of the current military options open to those who favor protecting civilians from more deadly gas attacks are good ones.  They risk escalating the conflict even further and spreading it to other countries. The opportunity to intervene decisively without encountering these risks was missed two years ago.   

As Edward N. Luttwak argued in a recent editorial in the New York Times, from a realistic US national interest point of view, US foreign policy should favor a victory for neither side of the conflict. If we support the rebellion the likely result is a take-over by radical Sunni Islamists allied with Al Qaeda, while if we support the Assad regime, we sanction mass killing and strengthen the hands of Shiite Iran and Hezbollah. In his view, our best option is a stalemate between these opposing forces. Let them fight each other, seems to be his advice. But this leaves the humanitarian concern out of the calculation entirely, which is precisely what happens when one tries to deal with such problems using the same level of global governance that created them. How many more civilians will have to die before the world learns this lesson?  

Unfinished Business

Now that the vox populi has spoken in the most expensive election in the history of human civilization (courtesy of the Supremes and Citizens United), it might be a good time to take a breath or two before the 2016 campaign begins to take stock of the unfinished business of the current, but soon to expire, 112^th Congress.

As Ezra Klein has noted, the 112th Congress will likely be remembered as one of the worst in American history. Not only did the shameful 1112th Congress pass fewer public laws than any Congress since Harry Truman, it is more polarized and more unpopular than any previous Congress, scoring the same approval rating as Hugo Chavez -- 9%. 

How did they manage to earn such a level of disapproval you ask? Well how about creating a false crisis over increasing the debt limit in the summer of 2011 that cost the US its AAA credit rating, dealt a blow to business and consumer confidence, and set back the recovery? This was an act of economic sabotage which, had it been done by a foreign power, could have been regarded as a causus belli. But then they did something even stupider -- as part of the deal to end this manufactured crisis the venal 112th Congress decided to create a special “supercommittee” to hammer out a grand bargain on a deficit reduction deal. They tied failure of this “supercommittee” to a spending sequester that would enact  automatic  across the board spending cuts that neither party likes, which will really cripple the economy if allowed to take place. And guess what --- the “stupidcommittee” failed, and those automatic spending cuts are now due to be enacted on January 1, 2013 unless the remnant of this dysfunctional lame duck Congress does something about it.  Good luck!

The problem is that the 2012 election basically affirmed the status quo with the Republicans retaining control of the House of Representatives and the Democrats control of the Senate and White House. This is the same recipe for partisan gridlock in Washington that we have had for the past few years, and there is no reason to think that the results of the election will do much of anything to break this pattern.

One may reasonably ask: How did it get this bad? Maybe it is the fault of both Republicans and Democrats in Congress. Bull! It was the Republicans fault. Don’t take my word for it, read the book by two longtime Congress-watchers, Thomas Mann and Norman Ornstein “It’s Even Worse Than It Looks” who say that the Tea Party tide of 2010 that caused the dysfunction of the 112th Congress. Although that tide is mercifully receding, Republicans will still control the majority in the House of Representatives for the 113th Congress and will most likely continue on their path of obstruction. 

One might think that having now failed to achieve their major political objectives, to ensure that Barack Obama would be a one-term president, and to gain the majority in the Senate, the leaders of the GOP (Guardians of Plutocracy) would decide to back off their ideological extremism and return to moderation. I wouldn’t bet on it. There aren’t any moderates left in the Republican leadership to make the case for this kind of sensible move to the political center because they were purged in the Republicans primaries earlier this year. This is the reason the prospects for progressive legislation in the next four years continue to be poor. I agree with Alan Wolfe that it is all but certain that the Republicans in the 113^th Congress won’t be any more cooperative with President Obama and the Democrats than those in the 112^th were, and that ”It will take more than one presidential election before the Republicans will ever prefer governance to politics.”

Wolfe goes on to argue that since Obama cannot hope to get any significant new legislation through the next two Congresses, he should become the “Educator in Chief” and really explain to Americans that we really, really do need to do something about wealth and income inequality and about global climate change (perhaps someday). While this may be realistic and pragmatic advice, I do not think it is good enough. President Obama should lead with a real legislative agenda, not with just a bunch of talking points for the punditocracy to jabber about.

Nor do I think it is a good idea for President Obama and the Congressional Democrats to try to “play nice” with their Republican colleagues. There will be some who will say that given how narrow the Obama victory was and how divided the country is, it would be best to pursue the path of moderation. Go for the relatively noncontroversial issues: a sensible deal of taxation and deficit reduction that balances cuts in entitlement spending with modest increases in the nominal tax rate for the wealthiest Americans; increase spending for education, shore up Medicare and Medicaid in sensible ways, and so forth. If President Obama reaches out to the other side with an olive branch, the thinking goes, and there is hope for piecemeal incremental progress.

The problem with this advice is that it is basically the game plan Obama followed in his first term in his forlorn attempt to overcome Washington partisanship. What happened was that the Republicans bit the hands that reached out to them and responded to offers of compromise as their cue to move the goal-posts even further to the right. By leading with moderation all Obama got was a ratcheting of the center of political discourse into the crazy zone (death panels and socialism) and at the end of the day, no deal anyway. One hopes that Obama has learned this lesson and recalibrates his negotiation strategy so that he does not begin with a moderate left-center position, and then cave to center or to the right of that, as he did in agreeing to the extension of the Bush tax cuts in exchange for an extension of unemployment insurance in the midst of the Great Recession.

Instead of moderation and compromise, I think that progressives both within and on the fringes of the Democratic party need to urge that President Obama and the democratic party leadership in the Congress go on the offensive with a real progressive legislative agenda, rather than with a modest and moderate one that their Republican colleagues will obstruct in any case. The progressive wing of the party was loyal to the Democrats this time around and did not undermine his chances of re-election by supporting third party candidates, like Jill Stein, in large numbers. It is time for progressives to urge that Obama adopt a progressive policy agenda in his second term. 

One of the big failings of President Obama’s first term was that he held onto the notion that he could overcome partisanship in Washington by just being reasonable and moderate in his political objectives. He took “Medicare for All” off the table from the get-go and went with what was essentially a Republican, market-based, plan to extend medical insurance to (almost) all Americans. Now that “Romney-care” has been rechristened as “Obamacare” and the supreme Supreme, Chief Justice Roberts, has given it his constitutional blessing, it would be a good idea for the Democrats to push to put back the “public option” that was stripped from the proposal even though it did not make any difference in the end on the number of Republicans who voted for the Affordable Care Act. So, the first element of a progressive democratic agenda is to work to strengthen and extend Obamacare and to ensure its successful implementation. It will never become “Medicare for All” in its present legislative form, but can out an end to some of the greatest injustices of a market-based health insurance system. How about bringing back the “public option” that was traded away in a failed attempt to win over some Republican votes?

Second, we need another round of economic stimulus to accelerate the economic recovery. With much of the East Coast devastated by Hurricane Sandy (the real October surprise in this election) what better way to deliver a needed jolt to the economy than by passing a significant federal infrastructure spending bill? It could be structured so that it contained grants for states and counties to apply for federal funds to rebuild critical infrastructure damaged by the storms, but it should also address the need to build a new, more resilient infrastructure that can withstand or bounce back from future environmental shocks like the one we have just experienced. This is not rocket science – it must be obvious even to so-called “low information voters” that what America needs now is (literally) “nation-building” in America – we have to rebuilt America’s physical infrastructure – our plumbing, electrical grids, our roads, trains, and airports, and our water supply systems to be able to survive the altered climatic conditions of the 21^st century.

Third, America needs to get serious about controlling carbon and other greenhouse gas emissions. Forget about “cap and trade” -- go for a  rebatable carbon tax of the kind James Hansen and his colleagues have proposed. Such a tax would enable us to place a real market price on burning fossil fuels of all kinds, while providing consumers with a monthly “green dividend check” to offset the increased cost of fossil fuel consumption. Democrats should put the “Climate Stewardship Act” on the legislative agenda, and let the Republicans howl all they want about the EPA and “too much regulation.” The Roberts court, having reaffirmed that Congress can levy taxes (duh!), will not be able to block it either. Then educate the American people as to why it is needed and how they and their children and grandchildren will benefit from a quicker transition to an energy economy that is less reliant on fossil fuels. While the Republicans are trying to figure out how to tell more lies, hit them with a bill that will eliminate the current subsidies to the petroleum, coal, and natural gas interests that have spent millions on TV ads trying to make people into “Energy Voters.” Yeah, well some of us already are energy voters, and we are voting for renewable energy not for more fossil fuels.

Fourth, we still need to have real financial reform that breaks up the banks that are too big to fail and places restrictions on risky gambling on Wall Street. The bankers largely backed Romney in this election; Obama owes them nothing. He should proceed to reign them in.

Fifth, we need urgently to resolve the immigration mess once and for all with a policy that allows paths to permanent residence and in some cases citizenship to the millions of undocumented workers on whom our economy depends. The passage of the “dream act” in Maryland may be a sign that the country is moving away from hysterical nativism and xenophobia on this topic.

Sixth, lets end the failed “war on drugs.” Let our Mexico and our southern neighbors address the many problems it has created for them dealing with the “narco-economy” that it has created. In this light it might be instructive to revisit the history of Prohibition (see Boardwalk Empire) and reflect upon the important lesson in political philosophy delivered by the failure of the Volstead Act – one cannot enforce virtue through legislation. Instead create community-based programs to deal with drug addiction as a public health problem and increase funding for similar programs to address other vices with adverse health impacts such as alcoholism and obesity. While we are at it, propose an “amnesty” bill that would have the effect of emptying the prisons of non-violent offenders convicted on drug charges and given ridiculous mandatory minimum sentences for victimless crimes. Calling for a general amnesty for such offenders will really give the Republicans fits, but so what – fuck ‘em. If they are going to say “no” anyway to anything that the Democrats propose, then at least propose things that make real sense and would make a real difference. Then when it does not pass, spare no effort on blaming the Republicans for sabotaging our democracy.

The rhetoric of this campaign has been surprising free of Democrats playing the “blame game” – even though it is obvious to most observers that the retrograde 112^th Congress has been obstructing progress on the economy, health care, infrastructure spending, immigration reform, and most other reasonable and necessary legislative initiatives. No doubt this was due to a political calculation on the part of democratic campaign strategists that people don’t like it when you blame others for you own failures, and that making such a charge is tantamount to admitting that much of the democratic legislative agenda was thwarted in the 112^th Congress at a time when the President wanted to run on his record. But that political calculation is now expired, so the democratic leadership should feel free to put the House and Senate Republican caucuses on the defensive by proposing an ambitious and progressive new legislative agenda for the 113^th Congress, and blaming the Republicans when the bills die in the Congress.

Freed from the need to run for re-election, President Obama should lead more confidently and aggressively in his second term both domestically and internationally. Domestically, he should be pushing his democratic allies in the Congress to take up this more forward-looking agenda and fight for it with him, not only as the “educator in chief,” but the “persuader in chief.” Obama needs to get off of the sidelines and go over Congress directly to the American people.

He also needs to attend to important foreign policy challenges, for instance, forging a relationship with China’s new leader Xi Jinping that will end our schizoid “frienemy” relationship and ask him to step up as a real partner in maintaining international peace and security in places like Syria, Iran, and Pakistan, not only North Korea. He also really needs to put more pressure on Israel’s right-wing coalition to deal seriously with the settlements and the question of Palestine. Dare I mention, Cuba?  

One last thought, while I think that Nancy Pelosi and Harry Reid have done about as well as could be expected given unrelenting Republican obstructionism, sabotage, and lying, their tenure as party leaders should also expire with the current Congress. The Democrats should elect new, more progressive leaders in the House and Senate to carry the fight to the next level. But before they go there is still that little matter of the “spending sequester” and the fiscal cliff that looms before us. I think they should try to convince the rump 112^th Congress that before it passes into history that it should have the decency not take the rest of us down with it.