The irony of excluding Iran

September 4, 2019

Paul Barker sent me a wonderful note about the latest Iran-related news:

“And in the irony of ironies, via Khalilzad [an Afghani-American diplomat and Special Representative for Afghanistan Reconciliation at the State Department ] the Trump administration is effectively negotiating terms of surrender with the Taliban — and it is the US that is surrendering.  Yet Trump wants the flexibility of the 2001 AUMF to justify totally unrelated action against Iran which is a natural enemy of the Taliban, al-Qa’eda and ISIS

“If Trump wanted a responsible way out of Afghanistan, he’d find a way to work with Iran.”

Absolutely right. Yet another cost of isolating Iran.


What’s up with Iran?

September 3, 2019

This Administration continues to try to inflame the relationship between the US and Iran. So let’s look at how we got here, for which we have to go back to about 1981. We could start earlier but that’s about the US and Iran screaming about which was worse and which was justified – our deposing their Prime Minister and installing the Shah in 1953, or their seizure of the Embassy and holding Americans hostage in 1979. Both sides are equally convinced they win that argument. So let’s start with 1981.

Iran tried several times since 1981 to meet, discuss, and work out our differences with everything on the table, calling one such effort a “dialogue of civilizations.” We largely refused or scuttled their efforts. More than refused, we did our best to isolate Iran, to leave them out of any and all discussions about the future of the Middle East. Finally Obama sat down with them and got to a deal which not only restricted their enrichment of nuclear fuel, but also created a platform for confidence building between us and them, only to have his successor rip it up – actually rip up our obligations while trying to leave theirs intact!

What is Iran supposed to do? For all but a few of those 40 years there have been no meetings, discussions or deals, and when we and they reached an agreement, the US dishonored it. What are they supposed to do?

Trump seems to think they should role over and say “Uncle” but why shouldn’t they expect the Eric Garner treatment: Iran, “I can’t breathe”; US, “OK, die.” The very idea of unconditional surrender is not one they could trust or accept, not one the Iranian public would trust or accept, and not one that any reasonable Iranian could believe was a good idea. In other words we have spent most of 40 years teaching them that they have no option but to push back.

We are not their only problem – a Shia nation in a sea of Sunni countries, they need allies. Israel is helpful because a number of countries in that area hate the Israeli occupation of lands the Palestinians owned. By arming guerrilla armies, Iran makes itself look like a shining white knight among Islamic countries, and it also makes clear that Iran is not powerless and has to be taken into account, at least about affairs of that region. The US hasn’t gotten that point but we’ve been stung anyway – to cheers, open or muffled, of others in the Islamic world.

Scholars and diplomats, understand the problem, by the way, and have been writing about the effect of isolating Iran. But American prejudices don’t allow realism about the Middle East.

So asking what Iran should do puts the focus on the wrong country. Iran was willing to work with us. There is a lot of latent fondness and admiration for this country among the Iranian people. Iran has in fact worked with Israel – until we upset the Middle Eastern balance of power by crushing and eliminating Iraq from the calculus. Indeed American diplomats were stunned when Iran and Israel pulled apart after the US crushed Iraq.

The real problem is that since 1981, American policy toward the Middle East has been governed by prejudice rather than intelligent analysis and careful calculation. In other words, America, know thyself.

Full disclosure, Professor Gottlieb’s wife is now president of the Peace Corps Iran Association, and he is a member of its Advocacy Committee.

 


The Special Prosecutor Did Not Exonerate the President

July 30, 2019

In the hearings on the Mueller Report, some of the President’s supporters tried to describe “innocent until proven guilty” as meaning that the president is innocent of any crime and that the special prosecutor made that finding.

“Innocent until proven guilty” is a slogan with important purposes – we must not punish people who haven’t been found guilty. The presumption of innocence bars any form of punishment before a guilty verdict. We have to make sure that we don’t catch and punish the wrong people. But there is no negative implication here. “Innocent until proven guilty” doesn’t mean that someone who hasn’t been proven guilty is therefore actually and certifiably innocent. Even people who are held not guilty after criminal trials are sometimes found responsible in civil cases, where the penalty is money, not time in jail. “Innocent until proven guilty” is a presumption, not a conclusion about a person’s actual behavior.

In some cases, prosecutors do conclude that a defendant was innocent, but their judgment is not binding on anyone if something else turns up and changes the impact of the evidence.

In other cases, prosecutors conclude that they can’t convince a jury that a defendant is guilty beyond a reasonable doubt, sometimes called a moral certainty. If not, they can put the case aside, hoping or trying to get more evidence. They may still believe the defendant probably committed a crime, even though they understand there is still a reasonable doubt. They have evidence that points toward guilt, but it isn’t strong enough to convince a jury to imprison someone.

Or, and this seems to have been the case with Trump, they believe they might have sufficient information to convict, but they don’t have the authority to prosecute. The rule in the Justice Department against indicting a sitting president barred Mueller from proceeding.

But none of those possibilities imply a finding of innocence as a fact.

Special Counsel Robert Mueller tried to make it clear. There is no finding of innocence in the Report. Instead, the Report described evidence that points toward obstruction of justice, and concluded:

“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

It’s not clear who first said, “I must follow them; I am their leader.” That is clearly Nancy Pelosi’s position. To get too far out ahead of the public is dangerous. It could close minds rather than open them, increasing the danger for our country. Lawyers like myself, need to be very conscious of whether and when a jury will be receptive to a charge even though we have evidence. My own view is that Mr. Trump has committed impeachable offenses. But I also agree that the moment to pursue impeachment has not arrived because too much of the public and too many of their Senators are not yet ready to hear the charges, much less follow where the evidence leads. I’m hopeful that the ongoing hearings will help to prepare the public and the Senate. But it isn’t patriotic to go ahead blindly.


The Bush Middle East

December 4, 2018

George H.W. Bush, our 41st president, put together a coalition to turn Saddam’s Iraq back from its invasion of Kuwait. He wanted the cover of a Muslim, Middle Eastern force joining in that invasion. He promised many of the countries involved that he would go no further than the Kuwaiti border that Saddam had crossed. In retrospect, that decision postponed the bloodbath that Iraq eventually became. But skilled as he was, President Bush couldn’t avoid the curse of unintended consequences. American use of a Saudi airfield was enough to anger bin Laden and al Qaeda. Hence the first attack on the World Trade Center took place under Clinton, between the presidencies of the two Bushes.

Bush excluded Iran from the “coalition of the willing” with which he invaded Iraq. In a book on Iranian foreign policy, subtitled Alone in the World, Thomas Juneau, Sam Razavi, and several colleagues explain that Iran lives amongst considerable dangers and hostilities. Four regional nuclear powers, India, Israel, Pakistan and Russia surround Iran. Religion, ideology, and other fears and jealousies divided Iran from its neighbors. And it has been excluded from regional security arrangements like the Gulf Cooperation Council, all of whose members are on the opposite side of the Persian Gulf. Thus, Iran has been in a precarious position which it has tried to meliorate with diplomacy, a strong military and support for the Palestinians.

In those circumstances Iran and Israel have reason to unite against the Arab states that have repeatedly gone to war against Israel and lose no love for Iran. But the wars against Iraq under the two Bush presidents had enormous impact on the Middle East. They left Iran the major local power, which spurred regional realignments. Specifically, Israel and Saudi Arabia no longer needed Iran’s support against Iraq. Instead, their fears transferred to Iran. As Trita Parsi describes in Losing an Enemy, a country’s natural enemy in balance of power politics is the biggest power in the region that could pose an existential threat. Once Iraq was disposed of, both countries wanted American support against Iran. Even though Iran had supported the Palestinians, it’s support had not been a major factor and, before the defeat of Iraq, Israel was telling the American state department to ignore the public fulminations of Ahmadinejad; despite him, Israel told the state department that Iran was fundamentally friendly! That may be a big surprise on this side of the Atlantic, but countries learn to distinguish the fundamentals from what they each have to do for diplomatic reasons.

I commented last week that Iran has been one of the most westernized countries in the Middle East. Despite the Guardian Council, public support for democratic institutions has a long history in Iran. Theirs is a mixed system, both clerical and popular. And the harsh language of some of the clerics has been a reaction to the fact that the Iranian people have been very much influenced by American culture. Despite the conflict between popular and clerical preferences, the people have no taste for another revolution. The result is that Iran has been one of the most stable countries in the Middle East.

That may not be the Middle East that the two Bushes envisioned. But Obama understood that agreements with Iran were possible in the current state of affairs. If we could cool down the fears and enmities involving Iran, Obama expected that he could turn his attention to Asia, which he viewed as the much larger problem. Unlike the small Middle Eastern countries, China is an existential threat to the U.S. on the world stage, and that’s where Obama wanted to put his, and America’s, energies.

Pity that Trump neither knew nor cared. That opportunity may be gone.

— This commentary was broadcast on WAMC Northeast Report, December 4, 2018.

 


The “Caravan”

November 13, 2018

Only Trump could turn a line of destitute and terrified people walking thousands of miles in hopes of finding safety in the America that all admired until recently, into a caravan of desperados bent on breaking laws, robbing, stealing and raping Americans.

Actually that’s wrong – the last time I know of was when Gen. Douglas MacArthur ran the bonus marchers off the mall in Washington, D.C. The bonus marchers were veterans of World War I, trying to survive the Great Depression. They came to Washington to petition their government to give them their promised World War I bonuses a little early, since they were desperate and destitute. Disobeying orders, MacArthur ran them off. MacArthur disobeyed four presidents until Truman finally fired him for insisting on widening the Korean War into China.

But the Bonus marchers and the Caravan both remind me more of John Steinbeck’s Grapes of Wrath – farmers who lost their lands to the banks after drought, the dust bowl and the Great Depression made it impossible to farm or earn a living in those farming communities. They joined a sad and sorry march from Oklahoma to California. They were farmers, not thieves or rapists. But they were vilifield as beggars. Oakies, originally meaning from Oklahoma, became an epithet. To the loss of their income, the loss of their farms, often the loss of their families, they now added the loss even of human empathy. Cold and hungry, the migrants gathered in shantytowns they called Hoovervilles, named for the president in office when the Great Depression began. They lit fires in steel drums to keep warm. I wish Steinbeck had written a sequel. He described great suffering and often death. Yet some percent of them survived and eventually melded into the population of California.

I thought we had outgrown demonizing the homeless and destitute, but not Donald Trump.

I thought we had outgrown running off the homeless and destitute like vermin, but not Donald Trump.

I thought we had learned that the problems of massive unemployment are not the workers’ making, but not Donald Trump.

I thought we had learned that farmers who’d lost their lands, shopkeepers, factory workers and miners who lost their jobs, were decent people suffering from forces beyond their control, but not Donald Trump.

Come back John Steinbeck and remind us all of our humanity.

Come back Franklin and Eleanor Roosevelt and show us how to care for our fellow human beings and build a better world out of love and compassion.

Come back America and show a large heart to each other and to the cold and desperate trying to reach the safety of our shores.

We can do it. There is no economic reason why we can’t. We could get to work rebuilding our infrastructure and make plenty of work for everyone. This is America. Si se puede; yes, we can and be stronger for it.

— This commentary was broadcast on WAMC Northeast Report, November 13, 2018.

 

 


Kavanaugh on Investigating the President

October 9, 2018

Brett Kavanaugh is now supposed to be called “Justice Kavanaugh.” The Constitution refers to members of the Supreme Court as judges. Whether the term “justice” will be appropriate depends entirely on his behavior. Of that I am doubtful. I think there was no justice for Dr. Christine Blasely Ford.

There is strong evidence that Kavanaugh will solidify a majority for repealing a half century of progress on voting rights, women’s rights, gay rights, anti-discrimination law and protections against our becoming a police state.  Kavanaugh invariably parried questions about his views with recitations of prior law, showing only that Kavanaugh could explain the cases, but never denying his likely impact.

Nevertheless, Trump and his Senate sycophants would have nominated and confirmed someone equally damaging to American law. More ominous are Kavanaugh’s views about whether it is OK to investigate a sitting president.

Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. That suit was dismissed because it didn’t claim Clinton violated the law. It was brought, however, for purposes unrelated to the suit, namely to enable fishing expeditions on Clinton’s behavior. That’s called abuse of process.  Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. In those days Republicans were puritans.  Kavanaugh pursued Clinton with gusto.

Then, with Bush in the White House before the election of President Obama, he told an audience at Minnesota Law School, that he had changed his mind. He wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So Kavanaugh concluded that there were good reasons not to sue sitting presidents. He added that impeachment was always available. Left unsaid, however, was that to be more than a partisan political tool, impeachment must rest on investigating to determine what happened.

Unlike the Clinton investigation, the investigation of the Trump campaign is about the violation of multiple laws, both constitutional and statutory – whether Trump’s campaign worked with a foreign country to tamper with an American election and support that country’s interests in exchange for putting Mr. Trump in the White House. The Mueller investigation provides an independent, nonpartisan basis for considering impeachment. Without Mueller, we have only partisanship – a partisan whitewash or a partisan indictment.

So, Trump’s selection of a judge who doubts the legitimacy of investigating a sitting president strengthens his attacks on the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But we don’t allow people to be judge in their own cause. What we already know about the Trump campaign justifies a deeper look. And Trump’s effort to control the investigation can amount to impeachable behavior. For Democrats to take back the Court, the law and the cause of justice, they will have to defeat Kavanaugh’s senatorial supporters and elect a Congress prepared to prevent presidential abuse. In other words, the battle isn’t over and the stakes just got larger.

— This commentary was broadcast on WAMC Northeast Report, October 9, 2018. This is a revised and updated version of commentary originally prepared for broadcast on September 18, 2018, pulled because of the Kavanaugh hearings, rescheduled for September 25 but pulled again at the last minute because of new developments in the Middle East. The earlier version was posted here.

 


Kavanaugh

September 18, 2018

Brett Kavanaugh no longer seems a shoo-in for appointment to the Supreme Court. Kavanaugh has now been accused of attempted rape. Let’s be clear – there has never been a time when rape was just juvenile misbehavior. Rape is and has been a crime for centuries. Nevertheless, I doubt this president will make a better nomination, a point Akhil Amar, an old friend on the Yale Law faculty, made eloquently on these airwaves recently. If the Republicans can put another person on the Court, whoever it is will solidify a majority for repealing a half century of progress on social, procedural and political rights, repealing gay rights, women’s rights, anti-discrimination law and a host of protections against our becoming a police state.

Beyond the question of who Trump’s nominee is or will be, the larger question for both the Court and the country is the impact on the November congressional elections. Control of Congress is crucial not only for its legislative output, but also for eventually retaking the Court.

At the hearings, Kavanaugh invariably responded to questions about his own views with descriptions of prior law, showing only that Kavanaugh could explain the cases, which no one doubted. More interesting were his shifting views about whether it is OK to investigate a sitting president. It seems pretty clear that he believes it’s a bad idea to investigate and prosecute sitting presidents outside the impeachment process. But he hasn’t told us whether it is unconstitutional.

Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. The civil suit brought against Clinton was eventually dismissed because it did not claim Clinton violated the law. That suit, however, was brought for purposes unrelated to the claims in the suit, namely to conduct fishing expeditions on Clinton until they found something that might be illegal. That’s called abuse of process.

Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. The Republicans went after Clinton because it was sex and in those days Republicans were puritans.

Kavanaugh eventually wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So he thought there were good reasons not to sue sitting presidents. But he did not slam the door shut. He expressed no view on the constitutionality of investigations or prosecutions. And he commented that there was always impeachment, which, if it is to be more than a partisan political tool, must be based on investigation to determine what happened.

Unlike the Clinton investigation, the investigation of the Trump campaign is about the violation of multiple laws, both constitutional and statutory – whether Trump’s campaign worked with a foreign country to tamper with an American election and to support that country’s interests in exchange for putting Mr. Trump in the White House. Whether or not a president can be prosecuted while in office, the Mueller investigation provides an independent, nonpartisan basis for considering impeachment. Without Mueller, we have only partisanship – a partisan whitewash or a partisan indictment.

So, for Trump to nominate a candidate for a crucial vacancy on the Supreme Court who doubts the legitimacy of investigating a sitting president, looks a lot like deliberate interference with the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But Trump’s efforts to control the investigation of his own behavior, making him the judge of his own case, offends a sense of justice. And that is directly relevant to the November elections. This president must have a Congress which is prepared to serve its constitutional function of preventing presidential abuses of power.

— This commentary was scheduled for broadcast on WAMC Northeast Report, September 25, 2018, but pulled at the last minute because of new developments in the Middle East.


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