The Legality of Crimea's Annexation

Having read and heard more on the legality of the Crimean secession from Ukraine, I remain unconvinced that the whole thing is bogus.

The argument against the legality Crimea's departure and its ensuing annexation by Russia is that the process was coerced. Although there was a referendum, no one thinks it was clean. For one thing, the margin of victory was far too wide. You can't get 99% of any group to vote for any thing; I would expect the margin for voter error -- people accidentally voting against it -- would be higher than 1%. For another, the voting was closely "supervised" by Russian soldiers, present despite denials of their existence by Putin.*

Putin's reflexive paranoid ranting reinforces the impression of illegitimacy. His railing against Western interference in Ukraine and his calling protesters "fascists" and "extremists" indicates his wacko world view and his inclination to behave erratically.

That Crimean Tatars report increasing persecution under the newly Russianized government makes matters worse.

At Dartmouth College this weekend I heard lecturer Jason Sorens argue that this coercion made the referendum clearly illegal. Only when both entities in the matter -- the separatists and the recognized government -- agree to the secession is it truly legitimate, he said. Such concessions are not unheard of, he pointed out, and include Congressional authorization for Puerto Rico to leave the United States at any time it chooses.

Viktor Yanukovich: Out for good reason

This line of reasoning, however, has its weaknesses. The new Ukrainian interim government derives its own legitimacy form a popular mandate not achieved through normal elections. I have no doubt that the people of western Ukraine were right to expel the corrupt, brutal puppet Yanukovich. But it's not obvious to me that Crimeans are bound by that choice, and if their move was irregular it should not surprise us. The form of the referendum was wrong, and in situations like this form matters. No one argues, however, that the majority of Crimeans would have voted against secession if a clean vote had been held.

* The fact that the soldiers were wearing uniforms without insignia is in fact a violation of international law, which requires legal combatants to display name, rank and national identifiers.

Can Corporations Really Have 1st Amendment Protections for Religion?

First Amendment jurisprudence gets more bizarre by the month under the current Supreme Court. First, in its Citizens United decision, the Court found that corporations have free speech rights. The conclusion there means not just that corporations can express opinions in ordinary situations, but that the government must protect such expression except under the most extraordinary circumstances. We all have an obligation to corporations in this scheme of things.

Now the Court appears to be open to the idea that corporations have religious rights, too.

We're not talking here about the right of individuals who own companies, but the companies themselves. The company at issue in Sebelius v. Hobby Lobby wants to refuse to pay for any insurance that would allow an employee to be reimbursed for contraception like IUD's. The owners say that they object to such measures on religious grounds, and that the Affordable Care Act would therefore violate their rights by providing such insurance.

Now, what if they made the same claim about vaccinations? That is, not only do the owners not want to be vaccinated or have their children vaccinated, but they do not want to be required to pay for insurance that would allow their employees to be vaccinated. Under this reasoning, they could claim religious exemption from almost any regulation simply by applying a twice-removed impact on them.

Note that the owners still want to distinguish themselves from their company for the purposes of liability and taxes, but not when it comes to the 1st Amendment.

Just like the recent Arizona law about religious rights in hiring, this argument is nonsense. If the First Amendment can be made to mean everything, it is made to mean nothing. It's dangerous and foolish to water our rights down like this.

The Law on Crimea

Crimea in the Russian Empire

Ukraine

The United States and many European governments have taken the position that the Russian annexation of Crimea is a blatant violation of international law. 

Maybe, but it's complicated.

First, we have the ouster of Viktor Yanukovich as "president" of Ukraine. No one thinks Yanukovich was anything other than a kleptocrat supported b the brutally corrupt regime of Vladimir Putin in Russia. Technically speaking, the protests that forced him to leave the country may not have been legal, even if they were perfectly justified as dissent against a bad government. If you adhere to the Lockean/ Jeffersonian  notion that Yanukovich's government was inherently illegal and illegitimate and therefore all protests against it, including those intended to cause its overthrow, are legal, then we have one conclusion. If you prefer the idea that he was elected in a flawed but legal election, then we have another.

Next, we have the concept of self-determination, the Wilsonian idea that every "people" has the right to affiliate itself with whatever nation it chooses. Under this framework, the Crimean referendum to quit Ukraine and join Russia is not only acceptable, but preferable.

But Vladimir Putin is the fly in this ointment. His actions are so thoroughly dishonest, corrupt and illegitimate that law-abiding people can hardly stand by and watch. Putin is working to bring back the totalitarian model of Stalin and Hitler, with rejection of emperical  truth at its core. He invades Crimea, and then denies that Russian troops are there, even as journalists take pictures of them. He steals billions of dollars from his own government and complains of capitalist corruption. He resorts to force first and last.

Putin's very existence is an affront to the rule of law, and he ought to be opposed by everyone all the time.

But I'm not sure what to make of the Crimean separation.

Betim Kaziu and the First Amendment

Until Thursday, I had never heard of Betim Kaziu.The I took a class to Manhattan to see the Second Circuit Court of Appeals, and we heard oral arguments in his case.

Betim Kaziu

In 2009, the government indicted Kaziu, a Brooklyn resident, for conspiring to travel abroad to fight against US interests. According to the indictment, Kaziu

took steps to continue on to Pakistan to obtain training and other support for violent activities. Kaziu also attempted to join Al-Shabbab, a radicalized, militant insurgency group, which has supported Al Qaeda and which has been designated as a terrorist organization by the United States Department of State. In addition, Kaziu made efforts to travel to Afghanistan, Iraq, and the Balkans to fight against U.S. armed forces. To that end, Kaziu attempted on multiple occasions to purchase weapons in Egypt. Ultimately, Kaziu traveled to Kosovo, where he was arrested by Kosovar law enforcement authorities in late August 2009.

Note that at no time did Kaziu succeed in any of these plans. The charge was solely that he conspired to do certain things.

In 2011, a jury returned a conviction, and in 2012 Kaziu was sentenced to 27 years in prison. At the sentencing, federal judge John Gleason excoriated Kaziu for showing insufficient remorse for wanting to be a "jihadist."

In his appeal, Kaziu's attorney made two arguments: first, that the government had insufficient evidence, as a matter of law, to convict Kaziu; and second, that he had a First Amendment right to do what he did.

Essentially, the First Amendment argument is that Kaziu never really did anything. He walked around saying that he wanted to do a thing -- kill American soldiers abroad -- but never demonstrated any actual capacity to execute these wishes. Everywhere he went, he failed even to find and join groups that might facilitate his desires. He was arrested in Albania after he made a "martyrdom video," which his attorneys say was "in jest."

That last part is a problem. If law enforcement is to have the ability to prevent terrorist attacks, it probably has to be allowed to intercede once somebody says they are on their way to martyr himself. And claiming that it's all just a joke, after months of travelling around trying to find the chance to become a martyr, is not going to fly.

But I don't feel especially confident about the worthiness of this conviction.* Kaziu is young and an idiot. Foolishness is not a defense, of course, but did the government show that he was a real threat? It does not seem so to me. And the judge's lecture from the bench only sounds like a cranky old man.

*There are other problems, aside from the 1st Amendment claim, that I will get to later.