The Right to Keep and Bear Arms in the U.S.A.

The Right to Bear Arms in the U.S.A.
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James Madison wrote 19 proposed Amendments to the Constitution.  Ten were ratified in 1791, becoming the Bill of Rights.  The right to bear arms is the second Amendment:

“A well guarded Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

The U.S. Constitution drew upon the Virginia Constitution, written by Geoge Mason, for its language.  The Virginia Constitution, adopted in 1776, had 16 sections.  The right to bear arms was the 13th:

“That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”

It is clearer in the Mason guarantees what was being provided for: that the proper defense of a state is an organized militia composed of state citizens; that national armies are dangerous to liberty and should be avoided in times of peace; that civil authorities should control strictly any national military.  In Madison’s Amendment, the language is confused, but looking to the Mason document for clarity, the Amendment’s meaning is available: A state militia is necessary to a state, and therefore state citizens shall always have the right to keep and bear arms.  The unwritten reason why a state needs a militia is the defense of state, including its defense against a national military that could endanger the liberty of state citizens, if ever such a defense were necessary.

*     *     *     *     *

The vagueness of Madison’s Second Amendment has caused confusion and disagreement in the matter of Americans’ right to keep and bear arms, and so shows a lack of clarity in the U.S. Constitution. In District of Columbia v. Heller (2008), the vague meaning of the Second Amendment was finally ruled on, but not conclusively.  The decision was 5-4 that the Second Amendment meant the right to keep and bear firearms unconnected with military service in a militia and to use those firearms for self-defense within the home.  The large minority argued that the Second Amendment protected only the right to keep and bear arms in connection with militia service. In order to decide the meaning of the Second Amendment, Justice Scalia, writing for the majority, went into a long, complex investigation of the language of the Second Amendment, examining grammatical elements, comparing the language with the language of other Amendments, comparing definitions of the words used in the Amendment, and decided upon possible and less possible meanings of the Amendment.  Scalia’s conclusion in large resulted from his conclusion that “the operative clause is consistent with the announced purpose” while the “prefatory clause does not limit or expand the scope of the operative clause.” Scalia’s study of the language was not persuasive for at least four of the nine justices.  The large dissenting opinion believed that the meaning of “bear arms” was not, as Scalia defined it, “any thing that a man wears for his defense,” but rather an idiom meaning “to serve as a soldier, do military service.”

By Day Blakely Donaldson

Source: Cornell University

Constitutional Interpretations Can Be Found to or Found Not to Give Rights to Homosexuals – Bowers v. Hardwick (1986) and Lawrence v. Texas (2003)

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In the 80s and 90s, laws against homosexual activity were first upheld as not in violation of Constitutional rights and later reversed as being in violation–Bowers v. Hardwick (1986) and Lawrence v. Texas (2003).

In Bowers v. Hardwick, two Georgia men were arrested for sodomy when a police officer tasked with serving a warrant for public drinking found the men engaged in sex at Hardwick’s home. After the local district attorney decided not to proceed with the case, Hardwick brought suit against the Attorney General of Georgia, Michael Bowers, seeking a declaration that the state’s laws against homosexual sex were invalid. The ACLU wanted to try the case. The district court found for the Attorney General, the appeals court reversed this, and the case proceeded to the Supreme Court.

The result was that the Supreme Court found against Bowers in a 5-4 decision. The court found no constitutionally protected right to engage homosexual sex and upheld the Georgia statute as valid. Justice White wrote the majority opinion, which cited historical precedents condemning homosexual sex.

The dissenting opinion was written by Justice Blackmun (although Blackmun has since revealed that it was in fact his clerk who primarily authored the dissent), who disagreed with the majority’s focus on homosexual activity, writing that the case was no more about a right to engage in sodomy than Stanley (1969) was about a right to watch obscene movies or Katz (1967) was about a right to place interstate bets from a telephone booth; these cases, Blackmun contended, were about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone,” quoting Justice Brandeis in Olmstead (1928). Blackmun continued, “Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens,” and stated that his finding was that the Georgia law under which Bowers was being tried was broad enough to also reach heterosexual couples engaging in anal or oral sex.

“(A) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. . . .”

“(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. . . .” (Georgia Code Ann. § 16-6-2 [1981])

Blackmun wrote:

“Only the most willful blindness could obscure the fact that sexual intimacy is ‘a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality,’ Paris Adult Theatre I v. Slaton (1973); Carey v. Population Services International (1977). The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many ‘right’ ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.”

Blackmun pointed not to a specific right to engage in homosexual activity, but to broad principles that have informed the treatment of privacy in specific cases. Blackmun held that the same protections that defended liberty and privacy interests in those other cases should apply in Bowers.

Blackmun again referred to Brandeis in Olmstead:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.”

At the time of Lawrence v. Texas (2003), it was illegal in 13 states to engage in consensual homosexual sex–this number was down from 25 at the time of Bowers, although it has been noted that a certain pattern of nonenforcement with respect to consenting adults acting in private had existed. That number was in turn down from 50 before 1961.

Lawrence and a man visiting his house were arrested on the night of September 17, 1998 outside Houston, Texas, when a jealous rival called in a false police report about “a black male going crazy with a gun” in Lawrence’s apartment. After contradicting accounts of homosexual activity by the arresting officers, the two men were charged and pled no contest to “homosexual conduct.” The jealous lover pled no contest to filing a false police report and was sentenced to 30 days in jail.

Lawrence et al. opted neither to plea their innocence nor to accept a minor fine and criminal charge, but to take on the law that outlawed, in effect, homosexuality.

By pleading no contest, Lawrence at al. waved their right to a fair trial, but asked the court to dismiss the charges on the basis of the unconstitutionality of the anti-sodomy laws. Lawrence claimed that because the law prohibited sodomy between homosexual couples, but did not prohibit sodomy between heterosexual couples, the law was unconstitutional under Fourteenth Amendment equal protection grounds:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

After being denied the Fourteenth Amendment defense motion in their first trial, Lawrence appealed, and the Texas Fourteenth Court found that the Texas law violated the 1972 Equal Rights Amendment of the Texas Constitution (sec. 3):

“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative”. (Added Nov. 7, 1972.)

The Appeals court found the law unconstitutional, but a year and a half later reviewed the case en blanc and reversed the decision, finding the law constitutional.  Lawrence petitioned the Supreme Court, asking the Court to consider:

1. Whether the petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws?

2. Whether the petitioners’ criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

3. Whether Bowers v. Hardwick should be overruled?

The Supreme Court, which examined the case in terms of “the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct,” found that consenting adult homosexuals had a right to sex in their homes. The Texas law, which outlawed “any contact between any part of the genitals of one person and the mouth or anus of another person; or… the penetration of the genitals or the anus of another person with an object” (§21.01[1]), was unconstitutional, violating the Fourteenth Amendment Due Process Clause, the Court found.

Justice Kennedy wrote the majority opinion, in which he criticized the judgement of Bowers and placed Lawrence in a tradition of Constitutional interpretation with GriswoldEisenstad, RoePlanned ParenthoodBowers and Romer, framing a narrative of progressive application of Amendment guarantees to privacy protections regarding human rights.  The majority viewed Bowers this way:

“[T]he Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do no more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.”

The court looked to determine “whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.”  The majority found that they were.  The court sought to find if any valid state claims existed that would pass the strict liability test. According to the majority opinion:

“The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

A 6-3 decision stuck down the Texas law.  The court overturned Bowers v. Hardwick.

“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

Kennedy offered an opinion on privacy in general and the court’s opinion on homosexual sex regarding Lawrence particularly:

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

*     *     *     *     *

The differing interpretations of Amendment guarantees and reliance on other informative sources such as caselaw, moral codes, and traditional attitude towards various groups of people or activities in Bowers and Lawrence show a lack in the U.S. Constitution to provide expected human rights protections for homosexuals.

In Bowers, the dissenting opinion of the Court followed, expanded and extended interpretations of Amendment guarantees found in Griswold (1972) and Eisenstadt (1972) to sexual privacy rights for homosexuals. The majority disagreed, however: it found that there was no Constitutional protection for homosexual sex. But this opinion based its decision on a tradition of condemning homosexuality.

This decision was overturned in Lawrence, but the Constitutional basis was questionable. In Lawrence‘s 6-3 decision, five justices believed the statute violated Fourteenth Amendment Due Process Clause and one–who had been in the Bowers majority–believed it violated rather the same Amendment’s equal protection guarantees.

The majority opinion explained that “the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution,” and sought to find what the Due Process Clause protected. Kennedy’s opinion listed a progression of Court interpretations of Amendment guarantees in a sort of narrative scheme of liberating rulings, starting with Griswold and proceeding through Eisenstadt and Roe to Planned Parenthood to Bowers and Romer.

Griswold recognized the right of privacy in the home of married people and Eisenstadt extended the protection to unmarried couples for any procreative (or not) sexual activity. Eisenstadt had based this right on the Equal Protection Clause. Although the Lawrence Court favored the Due Process Clause as a basis for protection, Justice Kennedy quoted Brennan in Eisenstadt for an extension of privacy protections to homosexuals:

“It is true that in Griswold the right of privacy in question inhered in the marital relationship …. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

The basis of this protection in the Due Process Clause was argued as false by many dissenters. Justice Scalia wrote:

“Though there is discussion of ‘fundamental proposition[s],’ and ‘fundamental decisions,’ nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’ Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: ‘[R]espondent would have us announce … a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.’ Instead the Court simply describes petitioners’ conduct as ‘an exercise of their liberty’-which it undoubtedly is-and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case.”

An oral argument at Lawrence‘s Supreme Court trial questioned the propriety of protecting any consensual adult sexual activity in the privacy of a home, stating,

We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose…. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything…. It all comes from, I would argue, this right to privacy that doesn’t exist in my opinion in the United States Constitution, this right that was created…in Griswold… .”

By Day Blakely Donaldson

Sources:

Justicia
Justicia
L&SJ (American Bill of Rights)

Alaskan Law: Alaskan Constitution Nullifies Ballot-Enacted Laws Against Marijuana – Noy v. State (2003)

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A trial over a charge for marijuana possession took place in Alaska in 2003, where the defendant argued that he had a constitutional right to possess marijuana despite laws in place–Noy v. State.

David Noy was arrested for smoking marijuana at a barbecue at his North Pole home after police smelled marijuana and investigated. Noy’s home was found to contain several ounces of marijuana as well as 5 immature plants, but no scales or other evidence of commercial conduct. Noy was prosecuted and convicted of marijuana possession under a 1990 statute criminalizing any amount of marijuana.

Noy appealed the decision, and in Noy v. State (2003) Noy’s counsel argued that Noy’s actions were protected by the privacy provision of the Alaskan constitution. The court agreed: according to the state constitution, Alaskan citizens have a right to possess less than four ounces of marijuana in their home for personal use.

The court found that statue AS 11.71.060(a)(1), which made illegal using, displaying, or possessing any amount of marijuana, criminalized conduct that the Alaska Supreme Court had declared protected under article I, section 22 of the Alaska constitution. This finding was based in main upon an amendment to the state constitution made in 1972.

The amendment states, “The right of the people to privacy is recognized and shall not be infringed.   The legislature shall implement this section.” (Article I, section 22).

In Ravin v. State (1975), the constitution was found to protect possession and ingestion of marijuana for personal use in one’s home in a purely personal, non-commercial context. In Ravin, the privacy protection extended to marijuana could only be overturned if the state could show that the intrusion into people’s privacy bore “a close and substantial relationship to a legitimate government interest,” i.e. public health or welfare would suffer without prohibition of private possession of marijuana. The court found that in Ravin such an interest had been demonstrated in the case of drivers, youth, buyers and sellers, and use in public places, but not for adults in general.

In 1982, the Alaskan legislature changed the law dealing with marijuana from Title 17 to Title 11 and dropped the civil fine for possession for personal use in a non-public place, alligning the law with Ravin. In 1990, however, Alaskan voters approved a ballot (citing variously as 51 and 55% majority) that amended AS 11.71 subsections and made possession illegal. Noy was charged under this 1990 law.

To decide Noy, the court sought to answer if the law under which Noy was charged was unconstitutional, in which case it would be void.

Important to the courts decision was the process by which Statute 11.71 was enacted: the ballot. The court sought to answer whether Alaskans can enact legislation by ballot. The court found that Alaskans could, according to Article XII sec. 11 of the Alaska constitution, which reads that through the ballot Alaskans may exercise “the law-making powers assigned to the legislature” (subject to the limitations in Article XI), but, just like legislative action, the initiative process must not violate the constitution. Statute 11.71 did violate the constitution in part, and so, the court found, the statute must be limited to preserve its constitutionality. The statute was to return to its pre-1990 version in order to conform to the constitution.

Therefore, the court found that marijuana possession by adults in their home for personal use (as in Ravin) remained constitutional, entitling Noy to a new trial. The original conviction was reversed and Noy was granted a new trial, wherein he could possibly be re-convicted if he was found to possess more than four ounces of marijuana (the amount not protected by the constitution).

By Day Blakely Donaldson

Sources:

Findlaw

Alaskan Law: Marijuana Possession Protected by Alaskan Constitution – Ravin v. State (1975)

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A trial over a lawyer’s marijuana possession took place in Alaska in 1975–Ravin v. State.

Irwin Ravin moved to Fairbanks in 1967 where he passed the bar and began practicing law. Ravin and another Alaskan, Robert Wagstaff, the Alaskan representative of the National Organization for the Reform of Marijuana Laws (NORML), both of whom enjoyed smoking marijuana, decided to take on the state’s marijuana laws. Ravin set himself up to be arrested in Anchorage during a routine traffic stop for a broken taillight. Ravin refused to sign the citation and was arrested with marijuana in his pocket. Ravin became the subject of a trial whereby he and Wagstaff would overturn Alaskan marijuana laws. NORML payed for expert witnesses to serve at the trial.

This trial was heard by the same judge as Breese v. Smith, Justice Rabinowitz, who referred to Breese for the test by which the court would measure Ravin’s claim that state action had unfairly encroached upon Ravin’s constitutional rights.

Rabinowitz cited this test:

“Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgement in question was justified by a compelling governmental interest.”

Babinowitz further wrote that this standard was familiar with federal law as well.

“As stated by the United States Supreme Court: Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.
The law must be shown ‘necessary, and not merely rationally related, to the accomplishment of a permissible state policy.’

Rabinowitz contrasted this test with the “rational basis” test–a less stringent test–which is to be applied when government action interferes with an individual’s freedom but not in an area characterized as fundamental. Under the “rational basis” test the government only needs to show that there is a rational basis that what they are doing would probably serve the public interest.

Ravin’s claim was to privacy rights violations–violations of a fundamental right. The court sought to find out whether any of Ravin’s rights had been infringed and, if so, find whether the infringements were justified.

The court looked to several precedent cases to inform its opinion: Griswold v. ConnecticutStanley v. GeorgiaParis Adult Theatre I v. Slaton, and Gray v. State. In Gray v. State, Gray had asserted (correctly, Rabinowitz found) that where a law impinges upon the constitutionally guaranteed right of privacy, the statute may be upheld only if it is necassary to further a compelling state interest. Gray also referred to Breese and to a 1972 amendment to Alaska’s constitution expressly providing that, “The right of the people to privacy is recognized and shall not be infringed.” The court found that this amendment “clearly… shields the ingestion of food, beverages or other substances.” In Gray, however, this right was tempered by a provision whereby the government could subordinate fundamental rights by showing a compelling state interest, such as promoting and protecting public health and providing for the general welfare.

Rabinowitz opined that there was no fundamental right either to possess or ingest marijuana in either the Alaska or U.S. Constitution, because, Rabinowitz reasoned, “few would believe they have been deprived of something of critical importance if deprived of marijuana, though they would if stripped of control over their personal appearance.”  Rabinowitz proceeded from an express right to possess or ingest marijuana to a privacy right that would protect possession and ingestion.

In Rabinowitz’s opinion, he referred to several important special areas of constitutional protection: the home, marriage, procreation, motherhood, child rearing, and education, and found within the “zones of protection” created by various Constitutional Amendments protection also for possessing and ingesting marijuana.  Such protected possession and ingestion, however, had important limitations, for which the court referred to Stanley: a strictly limited guarantee to possession for purely private, noncommercial use at home was protected, but not where possession interferes with the health, safety, rights and privileges of others or with the public welfare. Rabinowitz wrote,

No one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely. Indeed, one aspect of a private matter is that it is private, that is, that it does not adversely affect persons beyond the actor, and hence is none of their business. When a matter does affect the public, directly or indirectly, it loses its wholly private character, and can be made to yield when an appropriate public need is demonstrated.

So, Alaskans’ right to ingest could be infringed if the state demonstrates that the ingestion interferes with the achievement of a legitimate state interest.  The court concluded,

…Citizens of the State of Alaska have a basic right to privacy in their homes under Alaska’s constitution. This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.

The court reviewed the scientific research and testimony of experts heard on marijuana in order to find if there was evidence of a legitimate state interest to prohibit ingestion of the drug. The court found that marijuana does not constitute a public health problem of any significant dimensions and found that marijuana was more innocuous than alcohol or tobacco.

Thus we conclude that no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual’s home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied.

The court reserved three areas of marijuana-related activity that would remain criminal: adolescents could not partake because they may not be mature enough “to handle the experience prudently;” driving while under the influence because marijuana was found to impair psycho-motor control; and possession of amounts indicative of intent to sell would remain illegal because buying and selling had no protection under the Alaskan constitution. Rabinowitz noted that the court did not condone the use of marijuana and, in fact, unanimously opposed the use of any psychoactive drugs, but left the decision to use marijuana to individual Alaskan adults.

The court ruled that the matter be remanded to the district court, who must consider the opinion of the court and Ravin’s motion to dismiss after investigating the particular circumstances of Ravin’s arrest and possession of marijuana. The court left unanswered the question of how far Alaskans’ privacy rights extend outside the home, which, in the words of concurring judge Justice Connor, remained to be defined as later cases were brought forth. Conner noted, however, that the right to privacy “does not vanish when one leaves the home,” though the claim to privacy diminishes “in proportion to the extent one’s person and one’s activities impinge upon other persons.”

Ravin, which was referred to in many drug-related cases, was cited famously in Noy v. State (1990).  Noy occurred after Alaskan voters approved a ballot initiative to re-criminalize marijuana. In this trial the court found that the ballot was unconstitutional, just as a legistlative enactment to the same affect would be unconstitutional.

*     *     *     *    *

Ravin v. State points out an area of constitutional protection missing in the U.S. Constitution: protection of privacy.

Justice Boochever felt it necassary to file a concurrence in order to point out that even though the court based its findings in large part upon U.S. Supreme Court precedent, the U.S. Constitution had no provision corresponding to the Alaskan constitution’s protection of privacy, and Boochever did not want the Alaskan constitution construed. Boochever asserted that Alaskans should proceed on the basis of their own, separate state Constitution and agreed with the majority’s departure from the U.S. Supreme Court’s established standards in areas where Alaskans had discretion to do so:

Since the citizens of Alaska, with their strong emphasis on individual liberty, enacted an amendment to the Alaska Constitution expressly providing for a right to privacy not found in the United States Constitution, it can only be concluded that that right is broader in scope than that of the Federal Constitution. As such, it includes not only activities within the home and values associated with the home, but also the right to be left alone and to do as one pleases as long as the activity does not infringe on the rights of others. Thus, the decision whether to ingest food, beverages or other substances comes within the purview of that right to privacy.

What Boochever was referring to when he wrote of the court’s reference to U.S. Supreme Court precedents was Rabinwitz’s reference to the special importance of the home as given protection by the U.S. Consitution under various Amendments. Rabinowitz described penumbras created by these explicit rights and the existence of “zones of privacy” that had been located within these penumbra. For example, the First Amendment protects “privacy and freedom of association in the home,” the Third Amendment guarantees against the quartering of troops in private houses in peacetime, the Fourth against unreasonable searches and seizures, the Fifth provides protection against all government invasions “of the sanctity of a man’s home and the privacies of life.” These rights together form a penumbra of limited home-related rights understood by the U.S. Supreme Court, which in the area of privacy, Rabinowitz noted, arises only in connection with other fundamental rights (such as rights dealing with the home) and exists only when the private activity will not endanger or harm the general public.

By Day Blakely Donaldson

Sources:

UMKC Law
Justia

Alaskan Law: Long Hair in School Protected by Alaskan Constitution – Breese v. Smith (1972)

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A trial over a the long hair of a middle school student took place in Alaska in 1972–Breese v. Smith.

Michael and his father Russell Breese stood up against Elmer C. Smith, the principal of Main Junior High School, after Michael was threatened with suspension if Michael did not comply with an unwritten regulation against long hair promulgated three years earlier by the principal. Male students’ hair could “not be down over the ears, over the eyes,… [or] over the collar,” according to the regulation. The trial also involved George E. Taylor, superintendant of Fairbanks North Star Borough School District, who Smith turned to for authority to expell Michael Breese. On Sept. 21 Michael was expelled. Sept. 22 a superior court injunction forced an Oct 7. School Board hearing on the merits of the expulsion (evidence informing about the relation between hair lenth and undesirable characteristics/behavior in school students). An Oct 15. superior court hearing found the regulation reasonable (it did not unconstitutionally interfere in a citizens rights) and dissolved the temporary restraining order.

The ruling was appealed by the Breeses. When the case went to its final trial at the Supreme Court, the finding was that Michael’s rights to privacy guaranteed by the Alaska state constitution had been violated. Long hair was protected by law. The court did not find relevant language to deal with the matter in the U.S. Constitution, and previous cases dealing with the matter of hair styles lacked consensus (several theories based on several Constitutional amendments had been argued). Since the court lacked U.S. Constitutional resources to use as a basis, it turned to the state constitution, which states (basically, an incorporation of the affirmations of the Declaration of Independence),

“…All persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State.”

The Alaska constitution also guarantees (article VII, section 1) a right to public education to all Alaskan children. The court set out to decide whether the hair length regulation was valid on the basis of whether Breese had a constitutional right to his hairstyle. The earlier (trial) court had found no express constitutional guarantee of the right to wear long hair at school and also found that such a right could not be grounded in any “right to privacy.” The opinion of Justice Rabinowitz was that,

“Given this backdrop of constitutional interpretation we begin with the established premise that children are possessed of fundamental rights under the Alaska constitution. Moreover, we have previously stated that children’s constitutional rights will not be denied in deference to governmental benevolence or popular social theories… .

“We hold that under article I, section 1 of the Alaska constitution’s affirmative grant to all persons of the natural right to ‘liberty,’ students attending public educational institutions in Alaska possess a constitutional right to wear their hair in accordance with their personal tastes… .

“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, ‘The right to one’s person may be said to be a right of complete immunity: to be let alone’… .”

In his notes on the opinion, Justice Rabinowitz cited Justice Douglas’ interpretation of “liberty” in Olff v. East Side Union High School Dist., who stated, “the word “liberty” is not defined in the Constitution. But … it includes at least the fundamental rights “retained by the people”… . One’s hair style, like one’s taste for food, or one’s liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme a scheme designed to keep government off the backs of people.” Rabinowitz continued,

“We do not say that the governance of the length and style of one’s hair is necessarily so fundamental as those substantive rights already found implicit in the ‘liberty’ assurance of the Due Process Clause, requiring a ‘compelling’ showing by the state before it may be impaired. Yet ‘liberty’ seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty…

“We are in accord with the observation made by the court in Bishop v. Colaw that ‘personal freedoms are not absolute; they must yield when they intrude upon the freedom of others.’

“Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling” … .

“We think the compelling interest standard has merit and should be adopted in cases where a person’s individual liberty, as guaranteed by the Alaska constitution, allegedly has been encroached upon… Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgment in question was justified by a compelling governmental interest.

The ruling found that in disagreements of this kind, the onus should be not on the complainant, but rather on the government, so as to afford “protection against attempted infringement” of constitutional rights–not just rely on the “subjective elements of motivation and good faith of school administrators.” This decision about where the onus should be placed was disagreed with by concurring Justice Irwin, who believed that the burden of showing the unreasonableness of a rule to the purpose for which it was promulgated should rest with the student.

The court therefore found that Breese did have a constitutional right to wear his hair long. In looking at whether the state had a compelling interest in keeping hair short in schools, the courtheld off from expressing exaclty what evidence would be necassary to establish such an interest, but only concluded that the burden of showing such a justification had not been met in this case.The court, therefore, found no justification for the denial of Breese’s rights.

The court reversed and remanded the superior courts judgement.

*     *     *     *     *

The hair length issue in Breese v. Smith points out an area of civil liberties lacking protection under the U.S. Constitution: protection of individuals rights to decide their own appearance.

When argueing a person’s right to their appearance, proponents have tried a vareity of federal constitutional theories as the source of such rights. There is no consensus about what rationale is appropriate. Here are some examples of rationales that have been forwarded and have been used in various trials to successfully protect rights from infringement: The First amendment rationale has been called the right to freedom of expression, but it does not offer language that encompasses the issue of personal appearance or property.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The ninth Amendment rationale is the Section 1 “Equal Protection Clause,” which deals with property and liberty, but only as it is affected using “due process of law.”

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Fourteenth amendment’s Section 1 “due process clause” similarly deals with liberty and property–as well as privileges and immunities–but only where legislation infringes upon them and again dealing with them as affected by “due process of law.” It was used in Brown v. Board of Education (1954) (racial desegregation in schools) and other discrimination cases. The Fourteenth Amendment was also used in Griswold v. Connecticut (stuck down the banning of contraceptives) and Roe v. Wade (established a woman’s right to abortion). In Griswold, Justice Blackmun located within the “Due Process Clause” a “right to privacy,” although this decision was very controversial.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In Richards v. Thurston–already cited by Rabinowitz–the First Circuit court said this of the Constitutional grounds for upholding students rights to determine their personal appearance:

“We think the Founding Fathers understood themselves to have limited the government’s power to intrude into this sphere of personal liberty, by reserving some powers to the people. The debate concerning the First Amendment is illuminating. The specification of the right of assembly was deemed mere surplusage by some, on the grounds that the government had no more power to restrict assembly than it did to tell a man to wear a hat or when to get up in the morning. The response by Page of Virginia pointed out that even those “trivial” rights had been known to have been impaired to the Colonists’ consternation but that the right of assembly ought to be specified since it was so basic to other rights. The Founding Fathers wrote an amendment for speech and assembly; even they did not deem it necessary to write an amendment for personal appearance. We conclude that within the commodious concept of liberty, embracing freedoms great and small, is the right to wear one’s hair as he wishes.”

By Day Blakely Donaldson

Sources:

Justia
Alaskan Government

Revenge-Porn New Laws for 2014

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Senator Anthony Cannella of California has announced new amendments for January to the current anti-revenge-porn laws of that state, legislation currently framed under the blanket cyberbullying category. The amendments will broaden the criminalization of revenge-porn, applying it to self-shot images, so that anyone distributing revenge-porn will be liable. Cannella intends to present the amendments to the upcoming session

Under the current law (bill SB 225), passed in October 2, 2013, distributing sexually explicit photos taken of SOMEONE ELSE with the intent to cause harm or humiliate is illegal (misdemeanor). Currently there is no legal protection for people who take pictures of themselves when those pictures wind up online. There is no protection for people who give photos of themselves to others and later regret it, as those photos are the legal property of the recipient. There’s no legislation against posting any explicit photos if the subject is over 18 years old. Currently, most revenge-porn is not illegal.

Currently, an estimated 80 percent of revenge-porn victims take the pictures themselves, according to Cyber Civil Rights Initiative.

The SB 225 California law–a law brought by Cannella–was the first revenge-porn specific law in the U.S. Critics have argued against the perceived loopholes in the law. Notable among these “loopholes” are that the poster must be proven to have intended to cause serious emotional distress and the victim must be proven to have suffered such distress.

Sen. Anthony Cannella announced the amendments to the current revenge-porn law and proposed further amendments. Cannella wants to remove the loopholes as well: the burden of proving intent to cause emotional distress and that the victim actually suffered. This amendment is sometimes called the “Selfie Amendment.” This was left out of the original bill because, it was reasoned, self-shots implied consent. If Cannella’s amendments pass, it would be illegal to knowingly distribute explicit images of a person who has not consented to such distribution.

The laws being considered touch upon the First Amendment–the freedom of speech–which currently protects pornography, and so the laws must be written carefully so as not to violate constitutional rights.

A key argument against such laws is that making it a crime to distribute private images with the intent to harass or annoy might end up in charges against a person who leaks information that the public needs to know or has an interest in, because it was sent with a malicious intent, such as the case of ex-congressman Anthony Weiner, who denied sharing lewd photos of himself, which denial was later proved a lie.

Cannella’s announcement comes after Christopher Kevin Bollaert, creator of a revenge porn website called ugotposted.com, was arrested and charged December 11 in Sand Diego. Bollaert was charged with 31 felonies, including extortion and conspiracy, but most of the charges were for identity theft. There were also allegations of “child pornography.” Bollaert started the website in December 2012. He faced up to 22 years in prison.

Bollaert’s site was set up so that posters could include the victim’s personal information: phone number, location, and Facebook. Bollaert later put up a second site called changemyreputation.com, catering to victims who wanted their images removed from his site. The ugotposted.com site was taken down as a result of the criminal investigation.

The Guardian reported that Bollaert responded to these victims by offering to remove their images for 300-350 dollars (extortion). The site’s PayPal account showed payments in the tens of thousands of dollars.

At least two victims have said that they were under 18 (child pornography).

Bollaert has also been charged in civil suits in Illinois, Ohio and Michigan. Since Bollaert did not respond to the lawsuits, the judge entered default judgements, ordering Bollaert to pay three hundred thousand dollars to a Michigan woman and the same amount to an internet company Bollaert used to display nude photos. Bollaert has ignored these charges.

Bolleart’s trial, if it succeeds, may be the first major revenge porn prosecution.

Bollaert’s partner in the website, Eric Chanson, was also named in the lawsuit. Chanson attests that the two businessmen always removed user content with a subpoena and cooperated fully with authorities when contacted.

Some legal scholars doubt the case against Bollaert. The current California revenge-porn law does not apply to Bolleart’s case. The current law is not designed to apply to a site operator. Identity theft is a questionable charge because the site operator isn’t pretending to be or passing himself off as the people in the pictures.

Currently, only California and New Jersey have any law applicable to revenge porn. New Jersey’s law is not targeted at revenge-porn at all; in New Jersey it is illegal to distribute graphic images of a person without consent. Other states considering are legislation, such as Florida, Wisconsin, Maryland, New York, and Rhode Island. In the absence of such laws, victims are left to pursue civil litigation, commonly torts like invasion of privacy, stalking, or harassment. These charges are usually struck down immediately because sites are immunized from liability for user-generated content by Section 230 of the Communications Decency Act. Anti-revenge-porn advocates are pushing for federal level legislation.

Other people interested in stopping revenge-porn, such as Amanda Levendowski, NYU Law student, are looking at how copyright law might be able to combat the problem. Since around 80 percent of revenge-porn victims took the pictures of themselves, they own copyright to those images, which copyright is infringed whenever initial, interim, and subsequent copies and displays of those self-shot images are made.

If successful, the new amendments to the California law targeting revenge-porn would be introduced to the state legislature and take effect in January 2014.

By Day Blakely Donaldson

Sources:

UT San Diego
KPBS
Star-Telegram
NBC-10
Onthemedia.org
NBC Connecticut
KFBK
Elite Daily

What Is Tilt Shift?… And Some Amazing Van Gogh Examples

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What is tilt-shift and how is it used? Some examples — these amazing Van Gough scenes — of tilt shift will give a good context. But there’s more than one way to create the effect of these images, as you’ll later find out in this article. However, you probably want to learn how to do it with a camera, so we’ll start there.

tilt-shift tilt-shift tilt-shift-van-gogh-mountains-at-saint-remy-detail tilt-shift tilt-shift tilt-shift tilt-shift tilt-shift-van-gogh-starry-night-over-the-rhone-detail (1) tilt-shift-van-gogh-the-harvest-detail tiltshift-Vincent-Van-Gogh-villag-view-flower-field-736x459

What is tilt shift?
Tilt-shift is what happens when you use a “tilt-shift lens on your camera. As you can see, it’s tilted.

tilt-shift lens

The above image is what photographers usually use. You can actually make your own, though, and this photo gives an even better idea what the lens is doing. The one on the left is a store-bought Nikon tilt-shift lens. The second one is a kind of home-made version made by Dutch photographer Henk van Mierlo, and it uses an Ebay-purchased Nikon Bellows PB-4, a camera often discarded. (Van Mierlo used a 135mm lens on it rather than the regular 50mm because the 135mm lens allows you to focus at infinity, but it also needs an enlargement, which van Mierlo also kind-of home-made by drilling a hole in a body cap and adding some silver tape to make if fit tightlyScreenHunter_5445 Jul. 24 16.56)tilt shift lens

The shifter (really just an angle-piece for the base of a lens) can also be made any other way. Some people 3D Print them, but you could even just seal light out with black tape and hold your lens on an angle.

What does a tilt-shift lens do, then? It allows the photographer to shift focus from the person in front to the person in the very back of vice-versa.

SO, that means you can keep your focus on the guy in the back while other things happen in the front.

Here’s three images. The first one is what you normally see in your camera — it’s focused on the person, leaving the background out of focus. (Images by The Slanted Lens)tilt-shift explainedIn the image below, the lens is swung to the right. Look at the focus plane. You can expect anything along that line to be in focus — a normal lens can’t do this. The background and the person (one of his shoulders) are both in focus on the left side of the frame, so it looks like the foreground is out of focus while the middle and background are in focus.tilt-shift explained

And in this image below, the person is in focus, but one of his shoulders is out of focus, and so is the background, in part of the frame. So everything is out of focus except the persons face and one shoulder — kind of a vertical line of in-focus surrounded by a blur.

tilt-shift explainedSo that’s what the lens is and does. But really that’s not very impressive, because you can pretty much modify your focus anyway — with your camera and later with blur on your computer. So what’s the secret to the strange toy-like images of van Gogh or cityscapes like this one by Neil Roberson (New York)?

Neil Roberson

What’s the secret?

When you see these amazing images, you may notice that part of the effect is dramatically shallower depth-of-field. The lens is working like lenses do when we’re dealing with super-macro photography (macro lens for up-close shots). So we think we might be seeing something tiny.

You’re also seeing a high-angle shot. This is a shift on your lens — i.e. the camera points at an lens that is angled to the side. You’re not seeing a tilt — which is when the lens is raised up higher or lower against the camera, which creates a distorted-image effect.

NOTE: You can also use the shift to keep focus on the entire length of a small object in macro photographer. For example, if you’re shooting a ruler on a table, you can maintain focus on the entire length of the ruler with a shifted lens, which, as you remember from the three grey images above, means that the focus plane can be moved any way you like it.

How to create a tilt-shift effect without a lens… on your computer

You can adjust a photo’s contrast, color saturation, and depth of focus. This is actually the technique used to make the van Gogh images above. Note that in these images, created by Artcyclopedia, nothing was added to the paintings. The creator of the images above just manipulated the light and adjusted which areas of the frame were in focus.

Is this article worth sharing with other photographers and van Gogh enthusiasts?

By Andy Stern

South Sudan: Aid Agency Forced to Withdraw From Malakal, Government Seizes Newspaper Print-Run

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Day 34 of the South Sudan conflict – Doctors Without Borders has suspended activities in Malakal, capital of Upper Nile State, after their compound was looted by armed men who threatened staff.  This type of incident has happened several times in Malakal, with numerous complaints being reported already this week.

A UN spokesperson in New York stated that the rebels seemed to now be in control of Malakal, after a prolonged battle. Both the Sudan People’s Liberation Army (SPLA) and the rebels had claimed control of Malakal. Some reports are saying that the town remains divided still. Government Information Minister Michael Makuei denied that the rebels control Malakal.

The government still aims to fully retake the town. Bentiu was also the scene of a battle Wednesday, as the government continues its war on the rebels in Unity State. SPLA spokespeople have stated that the government is also advancing on Bor, and have ordered civilians in Bor to evacuate the area.

The South Sudanese government has welcomed Ugandan military aid. Uganda sent military aid initially to protect Ugandan civilians and interests in South Sudan. The Ugandan parliament sat this week to consider the Ugandan Peoples Defence Forces (UPDF) presence in South Sudan. The parliament voted to support the UPDF’s role in South Sudan. Ugandan intervention has been warned against by the UN and other interested parties because it might fuel the crisis. The rebels have also protested foreign military intervention in what they would prefer to be kept a national conflict.

Robberies have hit aid agencies in other locations.  In Bor, Jonglei State, and Bentiu, Unity State, a combined total of 20 UN vehicles have been taken by armed men. Vehicles have been commandeered by warriors from both sides of the conflict in many areas over the past weeks. There have also been cattle raids, shop arsons and many other destructive activities in affected areas.

Hilde Johnson, the head UN official in South Sudan, has called on Dr. Riek Machar to instruct forces loyal to him to immediately return the looted items.

The government seized the entire 1500-print run of the Juba Monitor’s Thursday paper. The reason was two articles contained in that paper. One of the articles was a proposal for an interim government until the 2015 elections. This proposal was written by the Monitor’s editor-in-chief. The other article was a piece about historical tensions within the SPLA army. The papers, which are printed in Khartoum, Sudan, were seized Wednesday night on arrival at the Juba airport. The editor complained to media agencies about the revenue lost due to the seizure, explaining that the paper’s scant advertising sponsors would not pay for the confiscated papers.

Many reporters and news agencies have been threatened recently. Harrassment of print news agencies by the South Sudanese government is commonplace. Only a small portion of mostly-illiterate South Sudan gets their news from print anyway, however; most South Sudanese listen to radio. But radio has also been shut down in three areas: Bor, Bentiu, and Malakal—the three main occupation areas of the rebels.

Nearly 500 000 people are displaced and 85 000 have fled to neighboring countries since the fighting broke out December 15 as the result of a disagreement within the government ranks.  The details of this disagreement have been given by both the government and Machar-loyal forces, but the accounts conflict strongly.  Peace talks, taking place in Addis Abada, are the main hope for reconciliation in this conflict, but those peace talks have not so far achieved any tangible success.  President Kiir remains in Juba from which he directs the government.  Machar remains in hiding, and his control over the rebels in South Sudan has been questioned.

By Day Blakely Donaldson

Sources:

VOA
Gurtong
Gurtong
Sudan Tribune
Radio Tamazuj

South Sudan: Update

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The conflict in South Sudan has continued for one month since its outbreak December 15. Fighting has raged in several locations, with the most severe fighting taking place in three key areas: between Bor, Jonglei State and Juba, the capital of South Sudan; in Upper Nile State; and in Unity State. Bor is 130 miles (210 kilometers) away from Juba by road and Upper Nile and Unity State are important oil producing states. Peace talks began January 5 in Addis Abada after preliminary negotiations the week before. The talks between delegations for the South Sudanese government and Riek Machar-loyal rebels are being mediated by members of the East African IGAD trading bloc. Here is an update of recent events in the South Sudanese conflict:

Peace Talks Might Yield Progress Within Two Days

Peace talks in Addis Abada continue to be stalemated by President Kiir’s and former Vice President Riek Machar’s main disagreement: the release of the political prisoners held by Kiir in Juba. Kiir accuses the detainees of attempting a coup and is holding them as prisoners while they are processed legally; Machar holds that the prisoners committed no crime and are being held wrongfully. Neither Kiir nor Machar have been willing to agree to a cease-fire, but both have repeatedly voiced hope for a prompt cessation of hostilities.

Despite the disagreement between Kiir and Machar over the political prisoners, Dina Mufti, the Foreign Ministry spokesman for Ethiopia at the peace talks, has stated that a ceasefire may be reached within two days. Mufti also noted that there seemed to be a correlation between success on the battlefields of South Sudan and how the dialogue at the peace talks went.

Parliament to Sit on State of Emergency Monday

The Parliament of South Sudan will sit to consider a proposal by President Kiir for a declaration of emergency in South Sudan. The proposal was submitted by Kiir January 11.

Kiir declared a state of emergency in Jonglei and Unity states, the two most violently contended states, January 1. The South Sudanese constitution provides that the President must submit a declaration of emergency to the National Legislature within 15 days of the original declaration.

Ugandan Newspapers Front Pages feature Ugandan Army Activities in South Sudan

Ugandan President Yoweri Museveni stated Wednesday that the Ugandan army has been fighting in South Sudan on the government side. The conflict has resulted in Ugandan Peoples Defence Forces (UPDF) casualties in the battles around Bor city, Jonglei State.

The Ugandan Parliament backed Museveni’s emergency deployment of UPDF soldiers to South Sudan to protect Ugandan interests. Some Ugandan parliamentarians had voiced questions about the constitutionality of Museveni’s decision.

Previously, Ugandan officials had been denying Uganda’s direct military involvement in South Sudan, in the face of accusations of military involvement by Machar and other rebel spokespeople. When asked for comment after Museveni’s admission, the Ugandan military stated, “Well, the President has said it.”

Museveni stated that with the help of the UPDF, the South Sudanese government had defeated rebel forces and regained Jemeza town on the Juba-Bor road, Central Equatoria State.

Upper Nile State SLPA Army Defections

Two days after the rebel attack on Malakal, capital of Upper Nile State, government SPLA troops defected in two separate incidents. 180 soldiers in Wadakona and 260 in Kaka allied themselves with forces loyal to Riek Machar. SPLA in Upper Nile were dispatched to pursue the defectors. Currently, the defectors occupy one part of the area and the government forces occupy another.

Mobile phone networks in Upper Nile have been shut down by government mandate for security purposes. Government spokesperson Ateny Wek explained, “You cannot leave the network up in a place where there are rebels. You have to cut the network where they are.” All of Upper Nile’s cellphone networks have been shut down except Renk and Paloch.

AU Wants ‘Humanitarian Corridor’ in South Sudan

African Union (AU) Deputy Chairman, Erastus Mwencha, made statements that the AU is working with other international partners to create a “humanitarian corridor” in South Sudan, from which location aid agencies would be able to better provide humanitarian assistance to South Sudan.

Lootings of UN and Other Aid Agency Property

Mass lootings have continued in Unity State. Mercy Corps, which distributes water and sanitation to refugees, and Doctors Without Borders were robbed by armed men in uniform again. The World Food Program, the International Committee of the Red Corss, and various UN compounds and workers have also been robbed. Riverboats and vehicles have been commandeered. Banks have been robbed (some banks have suspended operations), ammunition stores have been exploded, shops have been burned to ashes. The armed men responsible for the thefts belong to both rebel and government armies.

The total number of new UN police so far in South Sudan is 315 after 53 additional UN police personnel arrived Wednesday. The UN is stepping up security measures at refugee compounds in South Sudan, including weapons searches, ditches and fences.

Some activist groups in South Sudan have protested against the UN. Some have accused UN head official in South Sudan Hilde Johnson of taking sides. Siding with any group would run contrary to the UN mandate in South Sudan. Some groups have called for Johnson to leave South Sudan. At a protest by such groups, one characteristic sign read, “Hilde Johnson you are destroyer of our country leave the country for our security.”

Human Rights Violations Report Next Week

The UN Mission in South Sudan has announced that it will publish a report of human rights abuses by both sides of the conflict. The report will be published in the next week or two. The UN intends to hold accountable culprits responsible for human rights abuses.

Human Rights Watch released a report Wednesday that shows humanitarian crimes in Juba, Bor and other locations based on ethnic group have taken place. The organization urged government and rebel leaders to support an independent, unbiased investigation into human rights violations.

Members of the U.S. government have repeatedly called for those responsible for humanitarian crimes to be held accountable in international or other courts. President Kiir has also warned every person doing ethnic attacks, even if they are doing so in support of Kiir, that they must stop. The government arrested an unspecified number of SPLA Thursday on suspicion of ethnically-targeted killings of civilians.

All Universities to Close in South Sudan

University studies in South Sudan have been suspended temporarily. The higher education council issued letters to teachers that the government had suspended regular classes at universities. The decision is expected to affect all universities in South Sudan.  The decision was made after a meeting in Juba between the government and the heads of South Sudan’s universities. The decision was made so that the government “could monitor the current political and security situation in the country,” according one university’s acting director, Daniel Opio Akau.

Government Calls For More Army Volunteers

South Sudan’s Vice President Wani Igga has announced that the government wants 5000 recruits from each state to join the national army and fight the rebels. The government has been calling for more volunteers to fight the rebels repeatedly in previous weeks. The government has also levied mandatory donations to fund the army, and has initiated various programs to support the SPLA.

By Day Blakely Donaldson

Sources:

VOA
VOA
Sudan Tribune
Sudan Tribune
Radio Tamazuj
Radio Tamazuj
AP

Russia Arrests 5 Terrorists With Weapons Near Sochi

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Saturday, Russian police detained five suspected terrorists in Nalchik city, 185 miles east of Sochi.

Russia’s National Anti-Terrorism Committee stated that the suspects were members of an international terror group, but the Committee did not specify any group in particular.

The suspects were in possession of explosives and ammunition.

Russia recently geared up Sochi security. Russia is employing 37 000 security personnel for Sochi. This number is twice the security force employed at London or Vancouver. Beijing, however, spent $6.5 million in 2008. The total cost of the Sochi games, which will take place February 7 – 23, is estimated at $51 billion.

Russia is keen to the threats of terrorism, having been a target of North Caucuses terrorists for years. Sochi is seen as a particularly vulnerable forum for terrorist attacks, and recent Volgograd bombings have raised concerns about the safety of the Games.

December 29 and 30, 2013, two separate suicide bombings in the Russian city of Volgograd killed 34 people and wounded 100 others. Volgograd is seen as a gateway city to Sochi and is expected to be a main route for Sochi attendees.

Other recent security measures announced in Russia recently include a ban on demonstrations and rallies and a ban on all weapons sales in proximity to the Games. There is also a prohibition on vehicles not registered for the games within the Sochi secure perimeter.

By Day Blakely Donaldson

 

By Day Blakely Donaldson

South Sudan: Wartime Campaigns, Peace Talks Stalemate, Bentiu and Bor

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In Juba, wartime campaigns have begun as the IGAD delegation visited Machar at an unknown location in South Sudan. The UN estimates of displaced persons in South Sudan has risen sharply. Bentiu has been reclaimed by the SPLA, so the government now controls Unity State. Bor is the only important position remaining in rebel hands.

In Juba a mobilization and donation campaign has been begun which will recruit young men, women and ex-combatants to join the SPLA and fight rebels. The campaign will also raise money to send to the front lines. Government staff will contribute, according to their station, with the highest agent paying $500 or $1000 dollars.

A blood donation campaign, too, has been initiated by the Indian Association in Juba.

IGAD members have visited Riek Machar at Machar’s hideout in South Sudan. The IGAD members were accompanied by U.S., U.K., and Norwegian envoys and met Machar over the question of delayed peace talks. The IGAD members have returned to Ethiopia since visiting Machar. The delegation to Machar found that Machar was willing to sign a cessation of hostilities, but that Machar maintained his precondition that the political prisoners be released by Kiir.

Other of Machar’s reservations about signing a ceasefire include the Ugandan military presence in South Sudan and the question about whether a ceasefire would be respected if it were signed.

“I think that we were not closer to a deal because apparently they have played down the importance of releasing the political detainees and also they have played down the importance of the fact that there is an invasion from Uganda of South Sudan,” said Machar.

The allegations that Uganda is acting militarily in South Sudan have been denied by Uganda. The U.S., too, at a recent Senate Committee on South Sudan did not describe Uganda’s actions in South Sudan as particularly military. The U.S. described the Ugandan military in South Sudan as having come at the request of South Sudan and tasked with protecting infrastructure, the airport, Juba road, and Ugandan citizens in South Sudan. The U.S. did note, however, that Uganda was prepared to aid South Sudan militarily.

The IGAD delegations had met President Kiir on January 7 and 8 to talk about the peace negotiations. Kiir was firm on his refusal to release the political prisoners.

The U.S. and other international players in South Sudan have urged Kiir to release the political prisoners immediately. The U.S. State Department’s Marie Harf stated, “We do believe that to be meaningful and productive, senior SPLM members currently detained in Juba need to be present for discussions on political issues which are happening in Addis.”

South Sudanese Information Minister Makuei Lueth responded by saying that the prisoners were arrested and charged, and could not just be released without completing legal procedures.

The number of displaced persons has risen to nearly 400 000 since the conflict broke out December 15, according to UN estimates. The estimate of war dead has been pegged at 1000. That number has not changed since the first week of fighting, and commenters have noted that the current number must be much higher.

The UN houses 60 000 IDPs in UN compounds. The UN force in South Sudan is in the process of being doubled. The decision to double the force was made in the early weeks of the conflict, but redeploying UN peacekeepers has taken some time. So far only a small fraction of the nearly 7000 new UN staff have arrived.

Bentiu, capital of oil producing Unity State, was retaken by the government Friday after hours of fighting. The SPLA took 10 tanks and other vehicles as part of their victory.

Lul Ruai Koang, spokesperson for the rebels, stated that the battle was a “tactical withdrawal to avoid casualties.”

With the rebels out of Bentiu, only Bor is left as a major rebel stronghold. Bor is the capital of Jonglei State and is 125 miles (200 kilometers) north of Juba. The SPLA stated it was positioned and ready to retake Bor.

The SPLA has been fighting rebels just south of Bor.

By Day Blakely Donaldson

Sources:

CSPAN
UN
Yahoo
Gurtong
Radio Miraya
DW
BBC
Chimp Reports

South Sudan: How Does the U.S. View South Sudan?

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The U.S. has a special relationship with South Sudan, being responsible in large part for the creation of South Sudan in 2011. Last Friday a Senate Foreign Relations Committee hearing was held in Washington about South Sudan, specifically about civil unrest and ethnic cleansing in the country.

The Senate engaged in dialogue with two panels. First the current U.S. Envoy to South Sudan was interviewed, led by Linda Thomas-Greenfield. Second a panel of experts on South Sudan was interviewed.

What follows in this article is a summary of the Committee hearing. Senators took turns asking questions of the panels. Senators sometimes made statements themselves. The article refers to all senators and panel-members as “the U.S.” for sake of convenience. Obviously, it does not represent the views of any particular member involved, but is a shorthand of how the U.S. views South Sudan.

What is South Sudan, in America?

South Sudan is the world’s youngest nation, having been formed finally in 2011. South Sudan is still a somewhat fragile democracy, but had been–before December 15–a success story in America.

America has been South Sudan’s strongest international champion. In Washington, South Sudan has a powerful and interested constituency. America has invested hundreds of millions in aid to South Sudan. The U.S. has invested a total of possibly around $12 billion in South Sudan. America’s most recent aid portfolio was $350 million. The U.S. has now added $50 million to the $350 million.

U.S. diplomat for Africa Thomas-Greenfield explained why South Sudan matters to the U.S. this way:

“For 30 years the United States has been supporting the people of South Sudan, even before South Sudan became an entity, supporting their right to exist, their right to freedom of religion, and their fight against the government of Sudan. We birthed this nation and there are Americans from all walks of life … who are concerned about what is happening.”

U.S. presence in South Sudan

The U.S. in South Sudan is currently working very closely with the UN, NGOs and international partners, both at the Juba level and in Nairobi. The U.S. has been seen by both sides of the conflict as an honest broker between the two. The U.S. has also been accused by both sides of aiding the other.

The UN in South Sudan

The UN mission in South Sudan was not there to deal with civil violence. Violence broke out suddenly in mid December. The violence was something new to the peacekeepers, who hadn’t before thought of aggressive peacekeeping as their mission. The UN operation was largely concerned with statebuilding. The current UN mission is divided into separate categories, such as government capacity building, standing up of new institutions, etc.

Does statebuildling represent leverage in situations like the current conflict? Does the aid and assistance given represent leverage the U.S. can use? Is it effective at all, or just on the margins, or not at all? The U.S. did not provide a clear answer to this.

The UN, in order to meet the new challenges of South Sudan, will have to organize, provide and train for a different role: aggressive peace-keeping. The mission will have to protect civilians. UN compounds will have to be secured against rebel encroachment. Protected areas will have to be patrolled. A ceasefire–when it comes–will have to be monitored and reported. It will take the UN mission a while to adjust to this very different type of mission.

Challenges to providing aid in South Sudan

Security challenges in South Sudan are the main–almost the only–obstruction to distributing aid, but logistical challenges also exist. For example, the White Nile is a highway for supplies, but all barges on the White Nile have been commandeered and can’t move relief supplies. There are few roads in South Sudan. The rainy season is upcoming (May). Now–the dry season–is the time when provisions need to be pre-positioned around the country for the coming year.

Status of current U.S. aid in South Sudan

U.S. aid is being altered by the rebel outbreak. U.S. aid had gone to the South Sudanese government. Therefore, the U.S. can’t implement this aid right now. The U.S. has considered that if violence continues the U.S. should suspend support. The U.S. committee was not certain how much U.S. aid would run to South Sudan if a new government was instituted in the event of a successful coup.

Current U.S. aid measures taking place

The U.S. has begun to fund additional flights for the UN to distribute aid, but this is expensive because it is not an organized distribution mission based on most effective and economical means. The flights are emergency, immediate, individual missions. Aid cannot be moved to an optimal degree nor as quickly using this type of method.

Mass graves

Thomas-Greenfield stated that the reports of mass graves has not been confirmed, and that confirmation would be the job of UN workers who would go out into the field to find out.

Refugees in South Sudan

The outflow of refugees into neighboring countries takes the problems of South Sudan into those other countries, who–given their recent histories–know well what will be the impact of refugees on their economies and societies.

The region is one that already has significant displacement of persons, and there are already pressures of dealing with such significant displacement of persons.

Uganda’s activity in South Sudan

Uganda came in at the request of South Sudan. Ugandan military has has been tasked with protecting infrastructure at the airport, on Juba road, and protecting Ugandan citizens. Uganda is prepared to aid militarily in South Sudan.

China and what China will do regarding the South Sudan crisis

China went further than it ever has in just making a statement that the sides should cease hostilities. China’s interests are actually much deeper than the U.S. or any other country regarding national security. China will therefore act, America believes, but not publicly. The U.S. seeks ways to engage China in supporting stability in South Sudan. The U.S. seeks to find common ground with China so that they can together support peace efforts in South Sudan. One expert suggestion at the committee had to do with reforming the TROIKA plus China (and India) for leverage, due to the major oil investment of China and India in South Sudan.

Other countries in South Sudan

The U.S. seeks to put collective pressure on South Sudan’s leaders during key point moments, when there needs to be a push.

Currently, South Sudan is staffed with peacekeepers from Bengal, Kenya, Nigeria, and is expecting Guineans.

South Sudanese oil

Most of the oil pumping in South Sudan has ceased, according to Thomas-Greenfield, leaving South Sudan without much to fall back on. This statement contradicts somewhat the South Sudanese government’s statements that oil production has fallen 45 000 barrels per day to 200 000 due to Unity State fighting–that is to say Upper Nile State is still producing 200 000 bpd.

The U.S. decided that South Sudan would need to have a more dynamic relationship regarding its economy. South Sudan should not just have oil production. The U.S. noted that the second largest revenue source in South Sudan was a brewery.

Droughts and floods in South Sudan

Climate change creates a threat multiplier in South Sudan because draughts and floods create negative consequences for agriculture and food security. The overwhelming majority of South Sudanese depend on agriculture. Poverty is also linked to this situation. Floods and droughts create a negative feedback loop wherein civilians fight for smaller and smaller amounts of natural resources, making it more difficult to solve the original problem. Any disruption in agricultural production–whether flood, drought, or civil violence–rolls back any progress and gains previously made. Steps must be taken to reduce the long-term impact of climate change in South Sudan. Greater resilience to floods and droughts must be created. There must be greater management of risk.

Machar and Kiir

No evidence was seen by the U.S. that the outbreak was a coup attempt by Machar. Thomas-Greenfield stated that the outbreak had been “the consequence of a huge political rift” in South Sudan.

The U.S. noted that Machar split from the SPLA in the 90s and had massacred Dinka. The U.S. also noted that party dissenters do not favor Machar; rather, party dissenters criticize the ways policy institution dissolvements have taken place during Kiir’s presidency.

The U.S. stated that Kiir must accept his burden as president and play his role more effectively. The U.S. sees Kiir, though, “for all his faults” as “the democratically elected President, and you have to build on that.” The U.S. remembered Kiir’s past. Kiir had been proud of and admired for creating unity among all the groups in the run-up to the formation of South Sudan. This was one of the reasons Kiir was highly supported. Kiir has changed direction since then. Kiir now sees all critics as enemies. Kiir’s original contribution is being lost.

Dinka and Nuer tribes

The tribal question was of interest to the U.S. 30-35 percent of South Sudan is Dinka, although that group contains many subgroups. Nuer is the second largest ethnic group. There are 65 ethnic groups in South Sudan. There was reference to the problem of possible all-out tribal war as being “a numbers thing,” and in which the U.S. should “forget the mandate.”

Accountability for humanitarian crimes

The U.S. stated that those actors who are guilty of violence should not be part of a new government. Charles Taylor and Liberia were remembered. The U.S. wants to see an example set that war criminals will be tried in the international court.

U.S. selling arms to South Sudan

In January 2012 Obama added South Sudan to the U.S. list of countries eligible to buy weapons from the U.S., although the EU maintained an arms embargo on South Sudan. The U.S. authorized $9 million in weapons sales to South Sudan, and $3 million were actually shipped to South Sudan.

Possible new restrictions on weapons sales to South Sudan

In light of the fact that there is a risk that the weapons will be used to commit atrocities, the U.S. is considering suspending or limiting weapons sales to South Sudan. There was a call for a review of U.S. arms exports in general, which weapons were used to commit human rights violations. A statement was made that the U.S. has the responsibility for longterm harm if the U.S. does sell weapons.

The video of the Senate Foreign Relations Committee hearing in Washington Friday:

By Day Blakely Donaldson

Sources:

CSPAN
UN
Yahoo
Gurtong
Radio Miraya
DW
BBC