14 May 2010


SSRN features Jeffrey Kahn's 67 page 'The Extraordinary Mrs. Shipley: How the United States Controlled International Travel Before the Age of Terrorism' (forthcoming as a Southern Methodist University Dedman School of Law Legal Studies Research Paper).

Kahn comments that -
Terrorist watchlists used to restrict travel into and out of the United States owe their conceptual origins to Mrs Ruth B. Shipley, the Chief of the State Department's Passport Division from 1928 to 1955. Mrs Shipley was one of the most powerful people in the federal government for almost thirty years, but she is virtually unknown today. She had the unreviewable discretion to determine who could leave the United States, for how long, and under what conditions.

This article examines how Mrs Shipley exercised her power through a detailed study of original documents obtained from the National Archives. It then compares her work to the current watchlisting procedures employed by the Terrorist Screening Center and Department of Homeland Security. The article concludes that today's so-called “No Fly List” used to deny boarding passes to suspect travelers resonates with Mrs. Shipley’s passport power, which was rightly scaled back by the courts and Congress as incompatible with our constitutional values.
He notes that her -
office was delegated the discretion to grant, deny, restrict, and revoke passports. Although equipped at its peak with a staff of 225 people, Mrs. Shipley personally reviewed each application. Her word was law since, prior to the Supreme Court's 1958 decision in Kent v. Dulles, the decisions of the Passport Division were not subject to judicial review. That is why Secretary of State Dean Acheson later referred to the Passport Division as Mrs. Shipley's "Queendom of Passports" and noted her service as chief of an office with "almost absolute power to decide who might leave and enter the country". In this capacity, she excelled. As she neared retirement, John Foster Dulles recommended Mrs. Shipley for the Presidential Medal for Merit, the highest civilian honor awarded by the United States Government at that time. The citation prepared to accompany the award commended Mrs. Shipley, who "being alert to the dangers inherent in the travel abroad of communists and other subversives, initiated and steadfastly adhered to the policy of refusing passports to applicants whose prior actions indicated that the proposed travel would be inimical to the best interests of the United States".

State of the union

The Media, Entertainment & Arts Alliance (aka the 'creatives union') has released a 48 page report on media freedom in Australia.

Progress under liberty: the state of press freedom in Australia 2010 argues that progress has been made regarding Freedom of Information and whistleblower protection, but more work is needed.

The report features a digest of press freedom issues such as shield laws and anti-SLAPP statutes, along with the views of leading journalists, academics and legal experts.

Liberation Theology

From Noah Berlatsky's 'The Artist As Troll' -
One wonders what the Frankfurt School would have thought of the new day that has now dawned. If Benjamin's beloved Brecht encouraged audiences to think critically about the artist’s work, surely blogs, Twitter, and comment threads encourage the audience to come up on stage, beat the actors bloody and shit on their remains while screaming racial epithets sprinkled with smiley icons. If Benjamin truly believed, as he claimed, that the best art, the most valuable art, the art with the highest "technical quality" was that art which succeeded in "promoting the socialization of the intellectual means of production" — well, you'd think he must be right now leaping from his grave in joy and wonder, scurrying over to the nearest Internet café, and greedily scrolling through the latest 4chan flame war, all the while muttering to himself, "Lolz! Lolz! The revolution will be Rickrolled!"

The idea that the people will save culture has an almost irresistible fascination for leftists. On the one hand, you have Frankfurt School dyspeptics who think corporate crap has blinded us all. On the other, you've got cultural studies Pollyannas claiming that fans of American Idol creatively repurpose the show as a site of resistance to hegemony. But whether sad or cheery the dream is the same: some day the masses will rise up and write better novels their own damn selves.

Now the people are here, though, and, well, it’s a mixed bag. Certainly, lots and lots of folks who could never have gotten their voices out before are able to do so. The result could not exactly be characterized as an increase in art's "technical quality", though, nor as a socialist utopia. Capitalist desires have not been shucked; instead, they've metastasized. Given the means of production, as it turns out, people mostly want to scream fire in a crowded messageboard, talk about their furry fetishes or check the weather.

The point isn't that the people are innately frivolous or deluded—in fact, there's an avalanche of political discussion online, and the Iranian uprising showed quite clearly that access to communications technology can have potentially liberating effects. But hedge as you will, the democratization of the literati cannot be said to have created a world in which socialism is ascendant, or in which there is an overwhelming majority of speech exhibiting what Benjamin refers to as the "correct political tendency". It's almost as if the rallying cry "every man a genius!" is as much a call to debased polymorphous revels as to fraternal salvation.

13 May 2010

Hate Crime

'Hate Crime Laws in Australia: Are They Achieving Their Goals?' by Gail Mason in 33(6) Criminal Law Journal (2009) 326-340 is now available via SSRN. It extends the discussion in Hate Speech and Freedom of Speech in Australia (Leichhardt: Federation Press 2007) edited by Kathleen Gelber & Adrienne Stone.

The article notes that several common law countries have introduced 'hate crime' law, ie legislation designed to respond to the problem of prejudice-related crime. It discusses recent developments in Australian hate crime law, suggesting that there are three models (the penalty enhancement model, sentence aggravation model and substantive offence model) and then analysing some reported decisions under the sentence aggravation provisions that have operated in NSW since 2003 under s21A(2(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Mason suggests that four significant issues are apparent: whether the provisions apply to individual forms of hatred; whether intra-group conflict is covered; whether criminal conduct influenced by racial stereotypes comes within the ambit of the applicable motive test; and which groups should be protected under the legislation.

In critiquing the decision by the NSW Supreme Court (Criminal Appeal) in Dunn v R [2007] NSWCCA 312, an appeal against conviction of a man who sought to burn down a neighbour's residence because he (incorrectly) believed that the neighbour was a paedophile, Mason comments that -
This is a provocative and unique decision. Paedophiles have never been recognised as a protected category under hate crime laws. New South Wales appears to be the only jurisdiction in the world to do so. As discussed above, hate crime laws are designed to punish and denounce violence that is grounded in prejudice towards communities who are the historical objects of oppression: racial, religious, ethnic, gay/lesbian minorities and so on. Prejudice by its very definition denotes an irrational or unjustified negative attitude towards members of these communities. Paedophiles can be distinguished from groups conventionally protected under hate crime law on the basis that moral condemnation of their conduct is far from unjustified; their sexual conduct inflicts a clear and identifiable harm upon others (children) whilst the conduct of these other minority groups does not. Thus, negative attitudes towards adults who sexually abuse children do not fit easily within contemporary understandings of prejudice. This is not, of course, to say that vigilantism against paedophiles is warranted.
Mason goes on to comment that -
Vigilantism against adults who sexually abuse children is unacceptable. However, as indicated above, the heavier penalties that crime laws impose are defended by advocates on the grounds of both proportionality and public policy. Hate crime is said to inflict greater harm than other crimes because it represents an attack upon the victim's core identity which, in turn, produces a sense of vulnerability within his/her wider community.

Ultimately, hate crime is said to undermine multiculturalism itself. Hate crime laws can thus be understood as an extension of anti-discrimination and equal opportunity principles into the criminal domain. Whether or not we agree with these ambitious social objectives, we need to recognise that by imposing harsher penalties such laws send the message that crimes motivated by prejudice are worse than crimes that are not accompanied by such feelings.

People Smuggling and Surveillance Creep

Today has seen the passage of the Anti-People Smuggling and Other Measures Bill 2010 (Cth), legislation to "significantly strengthen Australia's people smuggling laws" as part of the national Government's "multi pronged approach to combating people smuggling by enabling the Australian Security Intelligence Organisation (ASIO) to specifically investigate people smuggling and other serious border security threats".

Australia's domestic legislative framework criminalising people smuggling is founded on the Migration Act 1958 (Cth) for ventures entering Australia and the Criminal Code Act 1995 (Cth) for ventures entering foreign countries, whether or not via Australia. The Bill will insert into both the Migration Act and Criminal Code a new offence of supporting the offence of people smuggling.

The Bill will also harmonise people smuggling offences between the Criminal Code and the Migration Act to ensure that offences for people smuggling ventures entering Australia or foreign countries are consistently criminalised. In particular, the Bill amends the Migration Act to include a section equivalent to section 73.2 of the Criminal Code so that the aggravated offence of exploitation or danger of death or serious harm also applies to people smuggling ventures entering Australia.

The Bill amends the Australian Security Intelligence Organisation Act 1979 (Cth), the Proceeds of Crime Act 2002 (Cth), the Surveillance Devices Act 2004 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth).

It includes additional offences targeting those who finance or provide support for people smuggling activities, along with "strong penalties that recognise the seriousness of people smuggling offences". Provisions in the Bill include -
• a new offence of providing material support for people smuggling (with a maximum penalty of ten years imprisonment and/or a fine of $110,000);
• a new offence of people smuggling involving exploitation or danger of death or serious harm, applying to ventures entering Australia (with a maximum penalty of twenty years imprisonment and/or a fine of $220,000);
• ensuring that where a person is convicted of multiple people smuggling offences, mandatory minimum penalties set out in the Migration Act are applied; and
• providing greater clarity and consistency by harmonising people smuggling offences in the Migration Act and the Criminal Code (Cth).
The Bill also "enables Australia's national security agencies to collect foreign intelligence about people smugglers and their networks". The Surveillance Devices Act 2004 (Cth) establishes the framework for use by Commonwealth law enforcement agencies (and State agencies investigating offences with a federal aspect) of data surveillance devices, listening devices, optical surveillance devices and tracking devices. Normally a warrant is required
to install, use and remove those devices. The 2004 Act, however, includes provision for their use without a warrant in certain circumstances, for example where -
. the use of the surveillance device is immediately necessary to prevent the loss of any evidence relevant to that investigation
. the circumstances are so serious and the matter is of such urgency that the use of the surveillance device is warranted, and
. it is not practicable in the circumstances to apply for a surveillance device warrant.
The amendments to s 30 of that Act extend its coverage to all the aggravated people smuggling offences in both the Criminal Code and Migration Act, on the basis that currently an emergency authorisation is only available in connection with investigation of one offence relating to people smuggling, ie an aggravated offence of people smuggling with circumstances of exploitation or a danger of death or serious harm under section 73.2 of the Criminal Code.

Schedule 2 amends the ASIO Act to enable the Australian Security Intelligence Organisation (ASIO) to "play a greater role in support of whole of government efforts to address serious threats to Australia's territorial and border integrity, such as people smuggling". That role will include covert surveillance.

ASIO's functions, as set out in section 17 of the ASIO Act, include obtaining, correlating and evaluating intelligence relevant to security, and communicating any such intelligence for purposes relevant to security. The existing definition of 'security' in section 4 of the ASIO Act "does not specifically encompass border security issues", so that "ASIO currently has limited capacity to carry out its intelligence functions under section 17 in relation to threats to Australia's territorial and border integrity such as people smuggling". Schedule 2 of the Bill aims to amend the definition of 'security' in section 4 of the ASIO Act to include 'the protection of Australia's territorial and border integrity from serious threats'.

12 May 2010

Stiff upper lips and cold cold baths

Derridian has pointed me to The Character Inquiry, a project of Geoff Mulgan's Demos thinktank in the UK.

Demos pitches 'character' as "an essential ingredient of a good life and a good society" and goes on to state that -
There is growing interest in the political and policy importance of a certain set of personal attributes – in particular emotional control, empathy, application to task, personal agency, an ability to defer gratification – that might be summarized as 'character'.

The possession of these character traits, or character capabilities, is an important predictor of a range of individual and collective aspirations, from health and educational outcomes to political engagement and civility. While the terminology differs – in different cases, terms such as emotional resilience, social and emotional skills, or life skills, might be used – the central, and perhaps growing, importance of character is being recognized across intellectual disciplines and across the political spectrum.
Demos notes that there is -
a wide and rich variety of thinking and practice around character issues. The aim of the Inquiry is to draw together the existing knowledge and apply it to contemporary public issues.

The Character Inquiry will:
* clarify and test what is meant by 'character' in public discourse
* review existing evidence on the significance of character
* test mainstream opinion on the role of character in public and social life
* highlight areas of public policy to which a character perspective may add value
* produce research on character development in specific settings
* consider policy implications for government, organisations and businesses.
The Inquiry will also conduct or commission research on the development of character in a number of settings, including:
* early years and parenting
* school curriculum
* role of voluntary organisations
* workplace
* peer effects, social networks and friendship
* social norms and mores
Given endorsement by Tory leader David Cameron we can presumably expect to see more talk of pluck, grit, initiative, scun knees, self-help and the undeserving poor.

Derridian's pointer coincides with my reading of Kenneth Pinnow's Lost to the Collective: Suicide and the Promise of Soviet Socialism, 1921-1929 (Ithaca: Cornell University Press 2010) about the social sciences and the entirely inexplicable failure of the 'new man' - and woman - to cease offing themselves in the workers' paradise. More character building was needed, it seemed at the time, and restrictions on exit mechanisms such as drinking Essence of Vinegar (apparently the Lysol of the 1920s.

11 May 2010

Tohu Bohu Boohoo

From Gerhard Struck's 'Law as "tohu‐bohu" and as a dream of humankind - Or: Is there a concept of law?' ('Recht als Tohuwabohu und als Menschheitstraum - Oder: Gibt es einen Begriff des Rechts?') in Ancilla Iuris (2009) 99-117 -
Foucault's classic passage [in 3 Dits et Écrits, 1954-1988 on Law as an 'apparatus'] states:
What I'm trying to pick out with this term is, firstly, a thoroughly heterogenous ensemble consisting of discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, scientific
statements, philosophical, moral and philanthropic propositions – in short, the said as much as the unsaid. Such are the elements of the apparatus. The apparatus itself is the system of relations that can be established between these elements. Secondly, what I am trying to identify in this apparatus is precisely the nature of the connection that can exist between these heterogenous elements. ... Thirdly, I understand by the term 'apparatus' a sort of – shall we say – formation which has as its major function at a given historical moment that of responding to an urgent need. The apparatus thus has a dominant strategic function. This may have been, for example, the assimilation of a floating population found to be burdensome for an essentially mercantilist economy
Struck comments that -
The science of Foucault could try to subsume the properties of law under one definition that would capture Foucault's quoted remarks. The abundance of the aspects addressed would easily fill a book; however, this book could then be subject to just the same criticism as any other piece of secondary literature. Such a book, according to one critic, "also belongs in the bad bank of historical theory, along with numerous other sections of Foucault's writings". Indeed, it can be doubted whether Foucault's capricious train of thought and the self-love of his rhetoric can be translated into plain text.

My thesis here is that the major positive effect of Foucault's thinking and writing is based on its clearly observable stimulating effect. Thus the discussion on security in our current society has profited from Foucault, even though the term "security apparatus" is sometimes used in the singular and sometimes in the plural. Foucault, unlike German authors, does not write with the intention that his text be understood by the reader in the German sense. The reader who engages himself in the process of searching and attempting, and is in the process of succumbing to temptations, is being addressed. Foucault was a – very! – French intellectual. For German academic discussions around a concept of law, this means that Foucault has different effects in different disciplines. In jurisprudence, the discrepancy between Foucault's remarks, for all their stimulating and intelligent qualities, and the comprehensibility and generalisation of his trains of thought concerning law, is simply too great. If we wanted to substantiate this view more clearly, we could point to how many of Foucault's statements on law only make sense in relation to criminal law.