Peter Spiro at Opinio Juris has an interesting comment on Adam Liptak’s New York Times/Int’l Herald Tribune report on the hate speech vs. free speech debate, which looks especially at differences in the way the issue is perceived in the US and the way it’s treated elsewhere. According to Spiro:

Together with Jeremy Waldron’s recent New York Review of Books piece on the subject, could this be the leading edge of possible constitutional adjustment?

It would have been mostly unthinkable as recently as 15 years ago. When the US ratified the ICCPR in 1992, everyone was on board with the reservation from article 20, including all the big human rights groups. That would probably play out the same way today, under the categoric rule of Reid v. Covert that treaties can’t trump the Bill of Rights.

But of course there’s a back door to the same result, which is through judicial interpretation. There are the obvious recent precedents for using international law sources in constitutional interpretation, although all in the name of expanding rather than restricting rights. But there’s also a line of less obvious cases (think consular courts, extradition, and foreign claims settlement) under which the courts have shifted rights sub rosa to conform with international realities. Especially to the extent the hate speech prohibition hardens at the international level, I wonder how long the US will be able to go it alone on this.

Actually, it would have been unthinkable slightly more recently than that (to split temporal hairs), for entirely different reasons of foreign policy: it would have removed one more excuse for non-intervention in Rwanda during the 1994 genocide. No joke. I’ll explain.

Last week I wrote up a short note on a great law article that assessed neutrality in cyberwar. I didn’t get into the details, except to suggest that it was the first effort I’d read that bridged cyber issues and radio broadcasting. The conceptual leap(back) allowed for references to work by Jamie Metzl, who once wrote an outstanding analysis of the international law of radio jamming and the Rwandan genocide of 1994. The crux of Metzl’s work was U.S. non-intervention in the Rwandan genocide, which has been dealt with extensively elsewhere, notably by my second-favorite brainy redhead, Samantha Power.

The narrower issue, and the piece most relevant to contemporary problems of internet-linked radicalization and terrorism, is the way radio featured so prominently in the preparation, mobilization, and direction of collective violence during the genocide. Radio absent an internet connection is scarcely given a nod these days, an almost retrograde technology. For a brief moment in time in the 1990s, though, it was the information medium in circumstances of materially unclear lines of command, control, and communcation (see here, here, here, here, and here). Forget written orders and documents that function as smoking gun evidence of criminal intent in war crimes trials. In primarily oral societies, with high rates of illiteracy, "radio is king". There, traditional sources of evidence and channels for C³I simply don’t work the same way. Skeptical? See here for the way archived radio transcripts can be used to build just such a case.

My point: in his article, Metzl looks to the potential for jamming hate radio broadcasts, as the one kind of humanitarian intervention that could have and should have happened in the Rwanda case. It should have been an uncontroversial approach to mitigating the slaughter.

So why didn’t it happen? Metzl’s findings revealed some grossly cynical justifications for non-jamming. The one that’s germane to Liptak’s NYT article: the legal opinion that such intervention might have constituted a violation of free speech provisions… somewhere. I’m not kidding. Memory is fallible, and it’s been at least six years since I read the article, but that’s the essence of Metzl’s expose.

I can’t help but think that individual expectations of free will and self-expression at home can and will shade perceptions  of others’ free speech abroad. Which, paradoxically, does little for the way latter-day terrorist-linked media and communications are handled.

So what does this tell us about how constitutionally-enshrined free speech provisions can color threat perceptions and foreign policy responses to them? Trying to reconcile the two issues feels like an exercise in policy gibberish, but there you have it.

I’ve just started following a number of blogs specializing in international law and national security issues. I’m impressed at the vigor with which some legal scholars have taken to blogging. As a thinker attuned to the laws of armed conflict/international humanitarian law, but not trained in law as such, I’m also grateful for the translations they provide from legalese to normal academickese so the rest of us can keep up. From Bobby Chesney at National Security Advisors:

Two momentous decisions this morning. In Boumediene, the Supreme Court holds 5-4 that (i) GTMO detainees are protected by the Suspension Clause and (ii) the Detainee Treatment Act review system does not provide an adequate substitute for habeas because it does not authorize the DC Circuit to order detainees to be released, does not allow detainees to argue that their detention exceeds the scope of the executive’s detention authority, and does not allow presentation of new evidence.

Meanwhile, a unanimous Supreme Court holds in Munaf that a US citizen held in US military custody in Iraq, under color of the authority of the MNF-I, has a right to seek habeas relief but that habeas jurisdiction does not empower courts to forbid the transfer of such persons to Iraqi criminal custody. The fact that the Iraqi criminal process does not satisfy US constitutional requirements is not relevant, the court observed. More significantly, the court also held that judges should not second-guess the State Department’s determination that such persons will not face an undue risk of torture upon transfer. That aspect of the holding has implications for the larger issues associated with extraordinary rendition in general and GTMO transfers in particular.

In short, a big defeat for the administration in Boumediene, but a big victory for it in Munaf.

Meanwhile, Opinio Juris has initiated an "Insta-Symposium" on the Boumediene Case, with a bevy of large brains weighing in on the decision: 

Opinio Juris is very pleased to announce an “insta-symposium” to discuss the decision. We have an amazing line-up of guests, including Geoff Corn (South Texas), Eric Freedman (Hofstra), Paul Halliday (Virginia), Chimène Keitner (Hastings), Jenny Martinez (Stanford), Michael Newton (Vanderbilt), Deborah Pearlstein (Princeton), Patrick Philbin (Kirkland & Ellis), David Scheffer (Northwestern), Beth Van Schaack (Santa Clara), Steve Vladeck (American), and Ted White (Virginia). 

At time of writing, a number of posts have already appeared. Worth following.

 

Geoff Manaugh on Pandemonium:

Some of the coolest photographs I’ve seen recently are these long exposure shots of crowds in St. Petersburg, Russia. They were taken by Alexey Titarenko for a project called "City of Shadows." What I think is so interesting about this is that an otherwise unremarkable technique – the long exposure – has the effect of transforming these assemblies of people into demonic blurs, black masses moving through the city. These look more like scenes from Jacob’s Ladder or Silent Hill…. [in one photo] the repeating glimpse of a hand pulling itself up the banister seems strangely unnerving –– and, in the next photo, the crowd takes on the appearance of a machine, hauling itself through human gears up the stairs of old buildings. A mechanism of bones from the afterlife.

But I suppose this is what the world would look like if we could see the residue of everyone who’s ever passed through – a vast, multi-limbed creature made of tens of thousands of human bodies, winding its way through streets and buildings, looking for some place to go.

The value of perspective: lessons for Iraq and Afghanistan and Lebanon and the Maghreb and….  

In "Inside 61, 600 Sq. Ft.", Bryan Finoki continues scrutinizing Blackwater’s Border Bypass:

[Preemption] … Around 1,000 square miles of the Californian desert is given over to modeling the warzones of the Middle East. Here, as with other police/military training environments, they tackle calamity in an amusement park of unrest, insurgency and its abatement, architectures both elaborate and artful, designed solely for the purposes of being conquered and reconquered. As the accessories of the doctrine of preemption, these spaces are accompanied by a growing number of university research laboratories which engineer preliminary superstructures suspended in conjectural disaster, or simulate emergency landings and training flight paths under fake duress, or teach of non-linear dynamics and Deleuzo-Guattarian war machines. These arcade-labs of war prepare for conflict under the principle of continuous adaption, train flexible military units moving not only to protect boundary lines but through terrains marked by the threat of catastrophe. These are instructional handbooks of preemption made manifest as simulated cities, malls and oilfields, aiming to transform soldiers from grunts to self-managed risk-assessors, to move the border with them through chaotic environments. Seeking to relocate warfare within the paradoxical condition of preempting the emergence of the unpredictable they, as with recognition technologies, are elaborately armed and lethal signals of failure.

Always read Bryan Finoki. ‘Nuff said. 

In, "The Internet and Neurobiology," Kazys Varnelis reacts to Nicholas Carr’s Atlantic Monthly article "Is Google Making Us Stupid?" (which I’ll come back to later):

In this article Carr sounds the alarm about how the vast amount of information on the Net and the ease of searching it via Google are changing our ways of thinking, spurring us to replace solitary, deep thought with surface-level grazing for content. Carr’s entirely justifiable fear is that we are less able to process and analyze information these days and more prone for a quick fix, going off to search for the next source of stimulus

Oh, the irony… more:

This article comes at a time in which I’ve been reading a bit about Neuroaesthetics, in particular as developed by Warren Neidich in his essay "The Neurobiopolitics of Global Consciousness" and in the conference proceedings that you can find at Artbrain #4 (also Warren’s site).

There’s likely to be much more about this on the site in the future, but for now, I’d like to observe that what leads me down this path is the suggestion that historical conditions can correspond to neurobiological changes. In other words, that it isn’t just that we’re reading differently as we learn to navigate the net, it’s that as we select for one form of cognitive processing over another we are reprogramming our brains at a fundamental neurobiological level.

In doing so, we support that activity with the tools and environments. These, in turn, pass on the changes in our brains to future generations and affect the conditions they emerge in.

In this light, network culture wouldn’t be merely a cultural condition, it would be a neurobiological state, a plateau in a long, Darwinian evolution of humanity’s cognition…

Worth considering, esp. after Sam Power’s Comment on the same subject in Time a couple of weeks ago.