Social Media vs. The Government, A Clash Facilitated by Russia

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

American tech and media companies have reached a fork in the road as they face dilemmas of freedom of speech, profit, and electoral integrity in the recent discoveries of Russian-bought political ads. Facebook released that it had found that $100,000 spent on around 3,000 ads by Russian sources issuing propaganda relating to the 2016 U.S. Presidential race.[1] While the number may seem miniscule in terms of money spent campaigning (for all 2015/2016 races a total of $11,313,483.59 was spent on Facebook ads by all races[2]), some believe that this could be just the tip of the iceberg in terms of what will be discovered in the future.

These ads seemed to have reached a population of around 10 million people in the United States during their runtime.[3] While this is a small percentage of the voting population in the United States, it seems that there was a specific focus on the locations in which the ads were placed. Recent news has shown that these ads targeted areas such as Michigan and Wisconsin over other locations in which there could have potentially been more views.[4] These states are well known as being the two battleground states in which Hillary Clinton was upset by President Trump as he carried the vote in both by less than 1%.[5] This seems to show a Russian attempt to interfere by targeting close political races in order to undermine the election; something the Russian government has denied doing. Other potential factors for Russian ads could be to test what kind of effects false news will have with just a small amount of money being spent, or, to test whether or not this method of undermining an election is even possible.

Facebook has already begun to move on the defensive within its own corporation. The social media company has begun to change its guidelines to warn ad buyers that those who utilize false news and deceptive ads will be forfeiting their right to monetize from the ads.[6]  Other large tech corporations have also begun to follow suit in becoming proactive in disclosing and fighting these ads. Microsoft, who has been untouched by the issue, has announced that while it has not been accused of selling Russian-bought ads, it will begin to investigate whether or not the same issue had occurred within its Bing search engine and other products.[7] Google has also come under fire as it recently discovered around $4,700 in ad purchases through its YouTube and Gmail services which was tied to accounts that are believed to be connected to the Russian government.[8] It has become evident that the corporations that had once rejected the claims and refused to help the government in offering up information from ads are now becoming increasingly more ready to comply with federal requests.

The response by the US government has become increasingly harsh as more information has continued to come out regarding how much Russia truly invested in these ads. Currently, the ads issue is under investigation by multiple US Congressional committees and the Department of Justice.[9] In the past, these corporations avoided disclosing whom had purchased their ads through a disclaimer that it was not required to release the information due to the purchases being too small to monitor.[10]  Senator John McCain, along with two Democrat Senators, has been on the move to end this disclaimer in federal law and, together, they are working on a bill to make Facebook, Google and other corporations in the industry disclose these advertisers.[11] One of the largest conflicts still looming between the government and these corporations resides over the belief that while the corporations did not know it was happening, they knew this type of ad-purchasing was possible and did nothing to curb it. At the end of the day, this situation has opened the door for stronger interference from the US government as federal election legislation specifically prevents foreign investments from affecting US elections, making the Russian actions explicitly illegal.[12]

Some of the stiffest concerns regarding the implications of government interference in social media corporations relate to potential effects of stifling freedom of speech through monitoring and disclosure of advertisements. This conflict reflects another issue in the relationship between corporations and the federal government—social media corporations lobby to protect the speech of their users while the government holds that the government is the single entity with the power to arbitrate speech.[13] More recently, social media corporations have begun to sort out and prevent accounts from ISIS linked propaganda accounts.[14] Similar companies in the industry, such as website hosting corporations, have done similar things, such as preventing neo-nazi pages from being hosted through their services.[15] The mutual agreement among most experts is that while these corporations are not bound by the First Amendment, they should not utilize this situation to become censors of user material unless it is explicitly illegal.[16]

Overall, it seems that the Congress is taking hold over these large social media corporations and may soon have the ability to force the disclosure of advertisements. While advertising is in many ways a form of freedom of speech, the corporations profiting from the advertisements have the right to decide what does and does not appear on their sites. In this sense, there is a median in which these tech giants will be able to balance their rights to protect the speech of their users while also managing federal concerns regarding foreign interests and money-making. It seems clear, however, that to allow false news and harmful propaganda to gain traction on social media will not be tolerated in the future, and companies will become better watchdogs or face harsher penalties.

 

About the Author: Adam Banks is a student at the School of International Affairs.


 

[1] Scott Shane & Vindu Goel, “Fake Russian Facebook Accounts Bought $100,000 in Political Ads,” The New York Times, September 6, 2017, https://www.nytimes.com/2017/09/06/technology/facebook-russian-political-ads.html.

[2] Alexis C. Madrigal, “What, Exactly, Were Russians Trying to Do With Those Facebook Ads?,” TheAtlantic.com, September 25, 2017, https://www.theatlantic.com/technology/archive/2017/09/the-branching-possibilities-of-the-facebook-russian-ad-buy/541002/ .

[3] Manu Raju et al., “Russian-linked Facebook Ads Targeted Michigan and Wisconsin,” CNN.com, October 4, 2017, http://www.cnn.com/2017/10/03/politics/russian-facebook-ads-michigan-wisconsin/index.html.

[4] Manu Raju et al., supra note 3.

[5] Manu Raju et al., supra note 3.

[6] Alyza Sebenius, “Should Facebook Ads Be Regulated Like TV Commercials?,” TheAtlantic.com, September 14, 2017, https://www.theatlantic.com/technology/archive/2017/09/facebook-ads-free-speech/539736/.

[7] “Google ‘Uncovers Russian Ad Campaign Linked to US Election,’” BBC.com, October 9, 2017, http://www.bbc.com/news/world-us-canada-41561882.

[8] Kenneth P. Vogel & Cecilia Kang, “Senators Demand Online Ad Disclosures as Tech Lobby Mobilizes,The New York Times, October 19, 2017,  https://www.nytimes.com/2017/10/19/us/politics/facebook-google-russia-meddling-disclosure.html.

[9]  BBC.com, supra note 7.

[10] Vogel & Kang, supra note 8.

[11] Vogel & Kang, supra note 8.

[12] Vogel & Kang, supra note 8.

[13] Sebenius, supra note 6.

[14] Sebenius, supra note 6.

[15] Sebenius, supra note 6.

[16] Sebenius, supra note 6.

[Series] Prosecuting War Crimes: Progress on Prosecuting Sexual Violence Crimes

“The determining feature for both conventional and non-conventional weapons to be characterized as weapons of war, is that they are used as part of a systematic political campaign which has strategic military purposes.”  [1]

The use of sexual violence as a tool of war can be seen throughout the world, and across much of history. The systematic rape of women and girls has been a tool used to conduct “ethnic cleansing”, which the United Nations defines as “rendering an area ethnically homogenous by using force”[2]  In 1992 the former communist state of Yugoslavia dissolved, during that time, an estimated 60,000 women were raped due to political, ethnic, and religious differences with the political majority Bosnian-Serbs. [3] In 1994, Rwandan President Juvenal Habyarimana was killed in a rocket attack. [4]The Hutu leader’s death was not the sole reason for the genocide, but it was the spark that caused the death of 800,000 Rwandans in the span of 100 days. During those 100 days, approximately 500,000 women and children were raped in Rwanda.[5]   As evidenced by its use in Bosnia and Rwanda Rape, is one of the most widely used weapons of mass destruction. It is not only a means of destroying lives, but it fractures families and communities that are unable to cope with the event.

Article 7(g) of the Rome Statute of the International Criminal Court declares rape or any other equivalent sexual violence committed in a widespread manner against a civilian population to be a crime against humanity. [6] Despite the condemnation from the international community, sexual violence is still used as an effective tool of war. Sexual violence remains such an efficacious tool of war primarily because there is little that can be done to prevent it in conflict zones. The International Court’s ability to prevent sexual violence in conflict zones is limited to deterrence. Deterrence by means of prosecuting those who perpetrated the crimes as well as the people who encouraged them. The nightmare of survivors is not only the assault itself, but the societal stigma that follows: survivors are often ostracized from communities, often forced to bear unwanted children, and infected with diseases like HIV/AIDS.

Prosecuting perpetrators proved to be extremely difficult until recent times. Due to the fact that international courts, such as The Hague, denounced rape but did not provide a sufficient definition. The prohibition of rape was an important step, but was not clear enough to combat the varied forms of sexual assault. In order to clarify what constituted sexual violence, the International Criminal Tribunal for Yugoslavia (ICTY) was given a set of statutes to abide by.[7] The International Criminal Tribunal for Rwanda (ICTR) was also given a set of statutes to operate under.[8] Both tribunals set precedents by relying on their respective statutes as well as customary international law (CIL). The use of customary international law was a stride in the right direction, as CIL’s allow tribunals discretion and flexibility when prosecuting these types of crimes. Both the ICTY and ICTR created good precedents for the prosecution of individuals who perpetrated sexual violence.

For the ICTY, the most influential  case was Prosecutor v. Tadic, a case in which it was never proven that the defendant had directly committed sexual violence but instead found him responsible for participation in a campaign of terror manifested by murder, rape, and torture. The tribunal effectively created an innovation aimed at influencing parties to curtail their brutality.

The ICTR’s chestnut case was prosecutor v. Akayesu, as it was the first case to define rape and sexual violence in a post-conflict context. Prosecuting sexual aggression was one of the chief objectives of the tribunal. The ICTR was also groundbreaking because it dealt almost entirely with internal armed conflict, and likened rape to the same level as torture under the Geneva convention.

Recently, former Central African Republic military commander, Jean-Pierre Bemba Gombo was sentenced to 18 years by the Hague for both war crimes and crimes against humanity (rape and murder). Mr. Gombo was a commander of a contingent of Mouvement de Libération du Congo (MLC) from October 26, 2002 until March 15, 2003.[9] Mr. Gombo’s conviction is groundbreaking because he was sentenced not only for his own crimes, but for the crimes of his subordinates, the first time that the doctrine of command responsibility was utilized in an ICC prosecution.

 

About the Author: Hojae Chung is a 2L at Penn State Law.

* This is the first part of a series on the progress on prosecution of war crimes.


 

[1] Inger Skjelsbaek, Sexual Violence and War: Mapping Out a Complex Relationship, European Journal of International Relations Vol.7, no. 2 (June 1, 2001) http://file.prio.no/publication_files/prio/Skjelsbaek%202013.EJIR.pdf

[2] Definitions, Ethnic Cleansing, UNITED NATIONS OFFICE ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO PROTECT http://www.un.org/en/genocideprevention/ethnic-cleansing.html

[3] Michelle Lent Hirsch, Bosnia, WOMEN’S MEDIA CENTER (February 8, 2012) https://www.womensmediacenter.com/women-under-siege/conflicts/bosnia

[4] Rwanda: How the genocide happened, BBC.com (May 17, 2011) http://www.bbc.com/news/world-africa-13431486

[5] Binaifer Nowrojee, Sexual Violence during the Rwandan Genocide and its Aftermath, Human Rights Watch Women’s Rights Project (September 1996) https://www.hrw.org/reports/1996/Rwanda.htm

[6] Rome Statute of the International Criminal Court, International Criminal Court (July 1, 2002) https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf

[7] Statutes, UPDATED STATUTE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, United Nations (September 2009) http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf

[8] Statutes, STATUTE OF THE INTERNATIONAL TRIBUNAL FOR RWANDA, United Nations (2007) http://legal.un.org/avl/pdf/ha/ictr_EF.pdf

[9] Background, Jean-Pierre Bemba Gombo, International Justice Monitor (2014) https://www.ijmonitor.org/jean-pierre-bemba-gombo-background

Catalonia: The Search for Independence

On Sunday October 1, 2017, Catalonia voted for independence from Spain.[1] Catalonia, the northeastern region of Spain that encompasses Barcelona, held a referendum and voted to become an independent state. Before the referendum took place, the Spanish courts and governments declared the holding of the referendum and the actual referendum as violations of the Spanish Constitution.[2] When the Catalans proceeded to hold the referendum against the demands of the Spanish government and leader, Mariano Rajoy, the central question shifted from the issue of Catalan independence to a more basic question of whether Catalans have the right to decide on statehood.

 

Over the past few decades, Europe has seen a lot of its states declare independence, including Crimea, Scotland, and Kosovo.[3] Similarly, the Catalans have several reasons as to why they believe they should have their own, independent state. First, Catalonia has its own distinct language, history, and culture from the rest of Spain. Catalonia was independent until it was captured by Philip V of Spain in 1714.[4] Since then, Catalonia has retained much of its own distinct language and culture, separate from the rest of Spain. This has caused much tension between Catalonia and the rest of Spain, especially during the Franco dictatorship, where the Spanish government tried to wipe out all of the Catalan culture and history.[5] Second, Catalonia almost was granted autonomy by the Spanish courts, but the statute was struck down as unconstitutional in 2010.[6] Third, the Spanish prime minister rejected a plea from Catalonia to reduce Catalonia’s contribution to the Spanish tax system that transfers money from wealthier areas to poorer areas of Spain.[7] Catalonia is the biggest contributor to the Spanish economy, and believes that it is being treated unfairly by having to contribute so much money to the rest of the Spanish economy.[8] Finally, Catalans believe that Spain is denying them the right to vote on their future.[9]

 

Although Catalans have compelling points for independence, Spain also has compelling points against Catalan independence. First, Catalonia is the biggest contributor to the Spanish economy.  If Catalonia were to secede, it could have destabilizing effects on both economies, and both states could face disastrous economic futures.[10] Second, Spain believes that Catalonia is undermining the democracy of Spain by flouting the rules and violating the Constitution.[11] If Spain did not object to this type of behavior, it could set a dangerous precedent for other regions in Spain. Third, Spain does not believe that Catalonia will be allowed back into the European Union (EU), which would have even more destabilizing effects on the country, and the EU as a whole.[12] Finally, Spain does not believe that Catalonia should be granted the opportunity to create its own country without a solid plan.[13]

 

The Spanish government and Spanish court have both determined that Catalan’s vote for independence violates Spain’s Constitution.[14] The EU is siding with Spain in this declaration of independence. Although the EU is a democratic body, it is a democratic body made up of sovereign states, and is therefore wary of encouraging separatist bodies that threaten the sovereignty of its member states.[15] If Catalonia succeeds in gaining independence, it would like to rejoin the EU as its own independent nation, something the EU has had no opinion about.[16] Catalonia has looked to the European Commission to intervene in this situation, but the EU has stated that Catalonia is a problem for Spain, not for the European Commission to deal with.[17] The EU is standing with its long held tradition of discouraging separatism, especially after the recent cases in Great Britain, Kosovo, and Crimea.[18] Because of he bias that the EU has shown towards Spain, the Catalans no longer view the EU as a neutral mediator in this situation, and have requested that the Venice Commission of International Lawyers, a part of the Council of Europe, to step in and handle the situation.[19] As of now, there is no word as to whether this will happen.

 

Catalans claim that Spain should look to other EU member states that have had similar separatist issues in the past, like Belgium.[20] When the Flanders population of Belgium threatened to declare independence, Belgium used a process of ongoing constitutional reform to give the Flanders population much more autonomy.[21] However, as of now, the Spanish courts and government are not deviating from their view that the declaration of independence is unconstitutional. [22] This move towards Catalan independence also causes worry that other regions of Spain, such as the Basque region, might move towards independence as well. The Basque region already has won control over its own tax receipts, something that the Catalans are demanding, so a vote for independence might not be far off.[23]

 

One of the questions that is up in the air at this point is whether the EU could recognize Catalonia as an independent state, and allow it to become an independent member of the EU. According to the Prodi Doctrine, a breakaway state would have to leave the EU and could then only be let back into the EU if the state had gained independence in accordance with the constitutional law in the member state that it left.[24] Further, any new member state must enter the EU with the unanimous agreement of all of the other member states.[25] In the case of Catalonia, clearly Spain would object to allowing Catalonia back into the EU, assuming that Catalonia gained independence constitutionally in the first place. But Spain would hardly be the only member state that will veto allowing Catalonia into the EU. Most member states are against separatism and the fragmentation of Europe, and allowing Catalonia back in could set a dangerous precedent.[26] Taking Kosovo as an example, today five of the 28 member states still do not recognize Kosovo as an independent state.[27] It would seem that the EU would have to respect the decisions of the Spanish government and constitutional courts and not recognize Catalonia as an independent member state.

 

The referendum was approved by over 90% of the 2.3 million Catalans who voted.[28] Although Catalonia is still pushing for independence, there has already been instability within the region. Before the vote occurred, the Spanish government deployed approximately 4,000 police officers to attempt to stop people from voting.[29] Hundreds of people were injured as the police used rubber bullets and truncheons to stops people from voting and to seize the ballot boxes.[30] Police also attempted to disable the Internet to interfere with the vote.[31] The Catalan referendum has been called the gravest threat to Spain’s democracy since Franco’s dictatorship in the 1970s.[32] Stay tuned to see what happens next.

 

About the author: Olivia Levine is a 2L at Penn State law.


 

[1] Minder, Raphael. “Catalonia Leaders Seek to Make Independence Referendum Binding.” The New York Times, The New York Times, 2 Oct. 2017, www.nytimes.com/2017/10/02/world/europe/catalonia-spain-independence-referendum.html

[2] Id.

[3] Id.

[4] Minder, Raphael. “Catalonia Independence Bid Pushes Spain Toward Crisis.” The New York Times, The New York Times, 8 Sept. 2017, www.nytimes.com/2017/09/08/world/europe/spain-catalonia-independence.html.

[5] Osborne, Samuel. “Catalonia: Spanish Government Demands Catalan Leader Clarify Whether Independence Has Been Declared.” The Independent, Independent Digital News and Media, 11 Oct. 2017, www.independent.co.uk/news/world/europe/catalonia-independence-spain-prime-minister-clarify-catalan-leader-mariano-rajoy-carles-puigdemont-a7994326.html.

[6] Minder, Raphael and Ellen Barry. “Catalonia’s Independence Vote Descends Into Chaos and Clashes.” The New York Times, The New York Times, 1 Oct. 2017, www.nytimes.com/2017/10/01/world/europe/catalonia-independence-referendum.html.

[7] Id.

[8] Id.

[9] Id.

[10] Erlanger, Steven. “For E.U., Catalonia Pits Democratic Rights Against Sovereignty.” The New York Times, The New York Times, 2 Oct. 2017, www.nytimes.com/2017/10/02/world/europe/catalonia-independence-referendum-eu.html

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Rodríguez, Blanca, and Sonya Dowsett. “Spain Gives Catalan Leader 8 Days to Drop Independence.” Reuters, Thomson Reuters, 12 Oct. 2017, www.reuters.com/article/us-spain-politics-catalonia/spain-gives-catalan-leader-8-days-to-drop-independence-idUSKBN1CG12O

[23] Erlanger, Steven. “For E.U., Catalonia Pits Democratic Rights Against Sovereignty.” The New York Times, The New York Times, 2 Oct. 2017, www.nytimes.com/2017/10/02/world/europe/catalonia-independence-referendum-eu.html

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Osborne, Samuel. “Catalonia: Spanish Government Demands Catalan Leader Clarify Whether Independence Has Been Declared.” The Independent, Independent Digital News and Media, 11 Oct. 2017, www.independent.co.uk/news/world/europe/catalonia-independence-spain-prime-minister-clarify-catalan-leader-mariano-rajoy-carles-puigdemont-a7994326.html.

[29] Ellyatt, Holly. “Constitutional Crisis Looms in Spain as Catalonia Looks to Vote on Independence.” CNBC, CNBC, 28 Sept. 2017, www.cnbc.com/2017/09/28/constitutional-crisis-looms-in-spain-as-catalonia-looks-to-vote-on-independence.html

[30] Minder, Raphael and Ellen Barry. “Catalonia’s Independence Vote Descends Into Chaos and Clashes.” The New York Times, The New York Times, 1 Oct. 2017, www.nytimes.com/2017/10/01/world/europe/catalonia-independence-referendum.html.

[31] Id.

[32] Id.

Stateless Nations: The Failing Peaceful Route to Independence

The recent referendums for both Catalonian and Iraqi Kurdish independence seem to have failed after being rejected by the government or judicial system of their respective governments.[1] While this may not be surprising to most observers, it is the furthest either movement has gone towards full independence – and the continued unrest in Catalonia represents the worst relationship that Barcelona has had with Madrid in decades. In both cases, it seems that the supposed legal avenue to independence by means of referendums and negotiations with the central government is not be possible, and that the peaceful route to independence for stateless nations has been proven to be an impossibility.

The Iraqi section of Greater Kurdistan remains the only section of the Kurdish population to be recognized as autonomous (see figure 1). In 1970 the Iraqi government granted the province of Kurdistan autonomous status, and the Federal Iraqi Republic confirmed that autonomy in 2005.[2] In Syria, Kurdish fighters have seized control of much of northern Syria from government forces, established their own government, and plan for greater autonomy following the war.[3] The Iranian section of Greater Kurdistan, although bearing the provincial name of Kurdistan, is not recognized as autonomous and does not enjoy any sort of self-rule. At a trade meeting on October 4, Iranian President Rouhani and Turkish President Erdogan both criticized the Iraqi referendum, calling it illegitimate and announcing their intent for more “decisive action” in opposition to a Kurdish state.[4]

The aftermath of the Iraqi Kurdish referendum for independence has shown Baghdad’s strong opposition to independence, including a complete refusal to negotiate with Kurdish leaders on the subject. Although the referendum was reported to show over 90% in favor of independence, Kurdish parliamentarians boycotted sessions of the Iraqi Parliament and the Shiite-dominated legislature moved to respond to the referendum by securing assets such as airports and oil fields in Iraqi Kurdistan.[5] Greater Kurdistan has never enjoyed independence, and opposition by all three states that include the claimed territory of Greater Kurdistan make legal progress towards independence unlikely.

Figure 1: Map of Kurd Population[6]

 

In Catalonia, which has a varied history of independence and autonomy, a peaceful movement of protests and referendums has defined aspirations of independence. Between 2000 and 2010, the pro-Madrid socialist party controlled the Catalan Parliament, but in 2010 Artur Mas and his pro-independence party won control of the legislature and held a referendum on independence in 2014. The Spanish courts and parliament labeled the referendum as unconstitutional and arrested Mas, who was convicted in March 2017, fined, and barred from holding office for two years.[7] Other legal efforts have included a 1983 provincial law making Catalan and Castilian Spanish equal languages. The law was validated by the Spanish Supreme Court in 1994 after challenges by the central government failed to overturn it.[8]

The referendum on independence held in early October 2017 by Catalan leader Carles Puigdemont was met with a repeat of the 2014 ban by Spanish courts, but has not resulted in convictions because it is being done under the agreeable auspices of Catalonia’s provincial judicial system and police force. If Catalonia declares unilateral independence, Madrid will most likely institute control over Catalonia’s administration and police force, but the chances of the movement becoming violent are higher than they have been in recent decades.[9]

Failed referendums in Catalonia and Kurdistan, particularly from the perspective of a long legal battle over Catalan autonomy for the former, show the apparent ineffectiveness of legal tools to achieve independence. If violence is to be avoided in these struggles for recognition and autonomy, usage of the law and meaningful dialogues must be as legitimate to central governments as leaders of independence movement hope them to be. For Catalonia, the answer seems to be recognition by the international community – in particular, the European Union. For Greater Kurdistan, the solution for true recognition is unclear, particularly while violence against the central government has led to the existing levels of autonomy enjoyed in Kurdish-held enclaves such as the oil-rich city of Kirkuk.

 

About the Author: Ben Black is a student at the School of International Affairs. 


 

[1] Zucchino, David. 2017. “Iraq Orders Kurdistan to Surrender Its Airports.” The New York Times. https://www.nytimes.com/2017/09/26/world/middleeast/iraq-kurds-independence.html?_r=0 (October 6, 2017).

Minder, Raphael. 2017. “Catalonia Leaders Seek to Make Independence Referendum Binding.” The New York Times. https://www.nytimes.com/2017/10/02/world/europe/catalonia-spain-independence-referendum.html (October 6, 2017).

[2] Iraqi Constitution, Article 113

[3] “Kurds seek autonomy in a democratic Syria.” BBC News. http://www.bbc.com/news/av/world-middle-east-19291072/kurds-seek-autonomy-in-a-democratic-syria (October 6, 2017).

[4] Regencia, Ted. 2017. “Erdogan, Rouhani united in opposition to Kurdish state.” Al Jazeera. http://www.aljazeera.com/news/2017/10/erdogan-rouhani-united-opposition-kurdish-state-171004124507138.html (October 6, 2017).

[5] Press, The Associated. 2017. “Kurdish Lawmakers Boycott Iraq Parliament Session in Baghdad.” The New York Times. https://www.nytimes.com/aponline/2017/10/03/world/middleeast/ap-ml-iraq.html (October 6, 2017).

[6] Izady, Mehrdad. The Gulf Project. Columbia University. http://gulf2000.columbia.edu/maps.shtml

[7] Murphy, Carver. 2017. Penn State Schreyer Honors Thesis. “Stateless Nations and Their Endeavor for Independence.”

[8] Earl L. Rees. Spain’s Linguistic Normalization Laws. pg 314.

[9] Minder, Raphael. 2017. “Catalonia Government Declares Overwhelming Vote for Independence.” The New York Times. https://www.nytimes.com/2017/10/06/world/europe/catalonia-referendum-sedition.html (October 6, 2017).

Got Your Six? Not In Trump’s America

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

On July 26th, 2017, Donald Trump, acting in his capacity as Commander in Chief of the Armed Forces, announced a new policy in the current fashion for this administration, via Twitter, which would ban transgender people from serving in the military.[1] This new “Trans Ban” is a direct reversal of Obama-era policies.

On June 30th, 2016, the Obama Administration announced that they would no longer discharge a member of the service for being openly transgender.[2] Following this, the Department of Defense announced that they would be accepting openly transgender troops into the service.[3] Within a year, on August 25th, 2017, despite no knowledge on the part of the Joint Chiefs of Staff[4] and vehement opposition from members of both parties[5], Donald Trump signed an Executive Order[6] prohibiting transgender people from joining any branch of the military, and giving the Secretary of Defense, James Mattis, six months to determine how to deal with the openly transgender soldiers currently serving, and leaving their long term fate unknown. These soldiers however, are not fighting this battle alone.

The future of this attempt by the Commander in Chief to use the war powers to discriminate may hang in the balance, however, without those he intended to support him. Civil liberty watchdog groups are not the only ones denouncing the President’s ban.  Republican Senator John McCain has openly criticized the ban since the tweet guidance.[7] Senator McCain, who acts as Chair of the Senate Armed Forces Committee, stated, “Any member of the military who meets the medical and readiness standards should be allowed to serve- including those who are transgender.”[8] Senator McCain has also lent his support to a new bill to be introduced into Congress, which pushes back against the Trans Ban.[9] This new bill, created after failed attempts by senators to stop the Ban by adding an amendment to the fiscal year 2018 Defense Authorization Bill[10], would prohibit the Department of Defense from not allowing current transgender troops to reenlist and also speed up the clock for Secretary Mattis in determining the effects on military readiness that he is required to report by February of 2018.[11] If the Bill passes, Secretary Mattis would have to report the results of his review to Congress by the end of 2017.

Secretary Mattis issued a guidance memo on September 15th, 2017 which stated that the Department of Defense, together with the Joint Chiefs of Staff, are convening a panel to discuss what the guidance will mean for transgender troops already currently enlisted, who relied on the Obama-era guidance in making their decision to serve openly as transgender.[12] In the meantime, Secretary Mattis confirmed that the Obama-era policies on transgender troops still hold, and that transgender soldiers may still continue to serve and receive proper medical care.[13] Secretary Mattis has said that he and the panel will create a plan that will “promote military readiness, lethality and unit cohesion”[14], but has not said if the Department of Defense has any idea what direction they will take regarding the currently enrolled soldiers.

While members of Congress are doing their best to fight for the rights of transgender soldiers currently enlisted, civil liberty groups are fighting for that and for the future of transgender people who desire to enlist. LGBT civil rights groups sued Donald Trump over this policy, some before the guidance even made its way to the Pentagon.[15] Others, like Lambda Legal[16] and the American Civil Liberties Union[17], waited until the Executive Order had been signed to sue. These groups cited Equal Protection and Due Process violations.[18] They cite documents that were prepared at the request of the Department of Defense during the Obama era, when they were considering allowing transgender people to serve openly in the service. This study, conducted by the RAND Corporation studied the effects on military readiness of allowing transgender people to serve openly and the costs of healthcare. They determined that healthcare costs were negligible[19] and looked to international examples to study the effects on military readiness.[20]

The Netherlands led the way in allowing transgender people to openly serve in 1974, and the other countries followed suit, including the United States last year. The study began with listing the eighteen countries that allow openly transgender people into their armed forces[21], and focused on the four most developed and long-term implementations of the policy in the Australian, Canadian, Israeli and United Kingdom armed forces. The study outlined the implementation of the policies and the long-term effects on readiness. They found that in all four countries, there was no report on any readiness or military operational effectiveness.[22] In fact, some leaders reported that the “increase in diversity has led to increases in readiness and performance.”[23] Through this research, the RAND Corporation recommended several best practices for the United States implementation of the policy, including diversity training, informed leadership, providing experts to commanders and promoting an inclusive environment.[24]

With the studies commissioned by the Department of Defense refuting the things that the Commander in Chief has cited as reason why they should not allow transgender service members to enlist, the law is on the side of those fighting for equality. While courts give great deference to the military and to anything that could be seen as a threat to national security, there is no reason to find in the favor of the Trump Administration when it comes to not allowing transgender people to enlist. In the Executive Order from the Trump Administration, the only reason given for the ban is that the Obama Administration did not have “sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources.”[25] This could not be further from the truth.

Prior to the Obama Administration’s repeal of the Department of Defense’s policy prohibiting transgender troops, they commissioned studies to assess if a repeal of the policy would affect all the things that Trump cited in his new Executive Order. Studies by the RAND Corporation, discussed supra, and the Palm Center helped assess the implications on readiness and effectiveness, and found that it would have no real impact. The Palm Center then, along with other transgender advocates, helped the Department draft standards to assuage the concerns about the medical needs of transgender troops. Per the newly drafted policy, transgender troops would have to be “stable without clinically significant distress or impairment in social, occupational or other important areas of function for 18 months.” They also must meet all other standards required for their respective positions in the service. Transgender advocates and experts on military readiness have supported all of these provisions.

And with respect to the concern of “taxing military resources”, a recent study by the Palm Center, assessed that it would cost the military $960 million dollars to discharge transgender troops (determining the number by calculating how much it would cost to recruit and train new members for the positions they would leave vacant [$75,000 per member x 12,800 active transgender members]).[26] The RAND Corporation study, discussed supra, assessed the cost of providing medical care to transgender troops to be $2.4-$8.4 million.[27] The cost-benefit analysis does not require an economist to interpret the results. The “taxing” of “military resources” would come with discharging these troops, not providing them with adequate medical care.

Without any data to back up the President’s reasoning for the Executive Order, when challenged in a court of law, he will not meet his standard of review. Generally, in cases regarding military policy, the courts have given extreme deference in upholding the choices of the armed forces and using strict scrutiny as their standard of review. This has lead to some devastating Supreme Court decisions in the past.[28] In order for it to hold under strict scrutiny, the action must have a compelling government interest and be narrowly tailored to achieve that interest. With all available data proving that allowing transgender troops to serve openly has no impact on military readiness and costs a fraction of what it would cost to discharge existing troops, the argument that the interest the government has in excluding them becomes less than compelling. And the half-baked guidance sent to the Pentagon that Secretary Mattis has to interpret for the confused military leaders could hardly be called narrowly tailored. Civil liberty watchdogs are likely to find themselves on the right side of history and easily overturn this ban as a matter of law.

While the current administration had made their disdain for the transgender community clear through the actions taken by the president and his chosen leaders for various administrative agencies, with this Ban, they are facing challenges from within their own party, overwhelming data on the side of the transgender soldiers and compelling histories of foreign militaries showing the success of allowing transgender people to serve openly. With the actions of the devoted Congress members fighting to keep those already enlisted in the service, civil liberty groups fighting for the equality promised to them by their government, and the breadth of studies from which the data is on the side of the soldiers, Trump’s Trans Ban will hopefully soon be a thing of the past.

 

About the Author: Kylee Reynolds is a 3L at Penn State Law. 


 

[1] Donald J. Trump, (@realDonaldTrump), Twitter (July 26, 2017, 5:55am) https://twitter.com/realDonaldTrump/status/890193981585444864

[2] Press Operations, Secretary of Defense Ash Carter Announces Policy for Transgender Service Members, U. S. Department of Defense (June 30, 2016) https://www.defense.gov/News/News-Releases/News-Release-View/Article/821675/secretary-of-defense-ash-carter-announces-policy-for-transgender-service-members/

[3] Transgender Service Member Policy Implementation Fact Sheet, Department of Defense (September 13, 2016) https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf

[4] Barbara Starr et al., US Joint Chiefs Blindsided by Trump’s Transgender Ban, CNN (July 27, 2017) https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf

[5] Aaron Mak, Trump’s Transgender Troops Ban is Backfiring Among Congressional Republicans, Slate (July 27, 2017) http://www.slate.com/blogs/the_slatest/2017/07/27/trump_s_transgender_troops_ban_is_backfiring_among_congressional_republicans.html

[6] Donald J. Trump, Military Service For Transgender Individuals, Office of the Press Secretary (August 25, 2017) https://www.whitehouse.gov/the-press-office/2017/08/25/presidential-memorandum-secretary-defense-and-secretary-homeland

[7] Chris Johnson, McCain Co-sponsors New Bill Against Trump’s Trans Military Ban, Washington Blade (September 15, 2017) http://www.washingtonblade.com/2017/09/15/bipartisan-bill-introduced-senate-trumps-trans-military-ban/

[8] Gayle Tzemach Lemmon, On Transgender Ban, Trump, Listen to Your Generals, CNN (September 18, 2017) http://www.cnn.com/2017/09/18/opinions/on-transgender-ban-trump-should-listen-to-his-generals-lemmon/index.html

[9] Zack Ford, McCain Joins New Legislative Effort to Overturn Trump’s Trans Military Ban, Think Progress (September 18, 2017) https://thinkprogress.org/mccain-transgender-military-ban-b15affc6d31d/

[10] Chris Johnson, Senate Blocks Vote on Gillibrand Amendment to Protect Trans Troops, Washington Blade (September 14, 2017) http://www.washingtonblade.com/2017/09/14/gillibrand-amendment-protect-transgender-troops-wont-get-vote/

[11] Jennifer Bendery, John McCain Cosponsors Bill to Block Trump’s Ban on Transgender Troops, The Huffington Post (September 15, 2017) http://www.huffingtonpost.com/entry/john-mccain-transgender-troops-trump_us_59bc31bbe4b086432b072478

[12] W.J. Hennigan, Pentagon to Convene Panel on Implementing Trump’s Ban on Transgender Personnel in the U.S. Military, Los Angeles Times (August 30, 2017) http://www.latimes.com/politics/washington/la-na-essential-washington-updates-pentagon-to-convene-panel-on-1504105334-htmlstory.html

[13] Jeremy B. White, Trump’s Transgender Ban Halted by Defense Secretary General Mattis, Independent (August 30, 2017)  http://www.independent.co.uk/news/world/americas/us-politics/trump-transgender-ban-general-mattis-frozen-defence-secretary-a7919331.html

[14] Richard Lardner & Lolita C. Baldor, Mattis: Transgender Troops Can Continue to Serve, Associated Press (September 16, 2017) http://www.military.com/daily-news/2017/09/16/mattis-transgender-troops-can-continue-to-serve.html

[15] Mark Joseph Stern, Why the First Lawsuit Against Trump’s Trans Ban is so Ingenious, Slate (August 9, 2017) http://www.slate.com/blogs/outward/2017/08/09/nclr_and_glad_file_lawsuit_against_trump_s_transgender_troops_ban.html

[16] Lambda Legal and Outserve-SLDN Sue President Trump to Reverse Transgender Military Service Ban, Lambda Legal (August 28, 2017) https://www.lambdalegal.org/blog/20170828_lambda-legal-outserve-sldn-sue-trump-over-trans-military-ban

[17] ACLU Files Lawsuit Challenging Trump’s Transgender Service Member Ban, American Civil Liberties Union (August 28, 2017) https://www.aclu.org/news/aclu-files-lawsuit-challenging-trumps-transgender-service-member-ban

[18] Karnoski et al. v. Trump, Lambda Legal, Complaint at 23 https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/karnoski_us_20170828_complaint.pdf

[19] The costs of providing healthcare to transgender troops would cost $5.6 million annually, only 22 cents per member per month

[20] Agnes Gereben et al., Accessing the Implications of Allowing Transgender Personnel to Serve Openly, RAND Corporation (June 2016) https://www.rand.org/pubs/research_reports/RR1530.html

[21] Australia, Austria, Belgium, Bolivia, Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany, Israel, Netherlands, New Zealand, Norway, Spain, Sweden, United Kingdom

[22] Gereben at 60

[23] Id.

[24] Gereben at 61

[25] Supra at 6

[26] Aaron Belkin et al., Discharging Transgender Troops Would Cost $960 Million, Palm Center (August 2017) http://www.palmcenter.org/wp-content/uploads/2017/08/cost-of-firing-trans-troops.pdf

[27] Gereben at 12

[28] Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944)