Mark F. Massoud
UC Santa Cruz
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CDDRL Hewlett Fellow 2008-09
Mark Fathi Massoud was a CDDRL postdoctoral fellow in 2008-2009. He holds a JD and PhD (Jurisprudence & Social Policy) from the University of California, Berkeley, and he is currently Associate Professor of Politics and Legal Studies at the University of California, Santa Cruz. Massoud's research focuses on law in conflict settings and authoritarian states, and on Islamic law and society. More information can be found at http://people.ucsc.edu/mmassoud.
FSI International Conference: Transitions 2009
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Join us for an engaging day of debate and discussion about the profound opportunities for change offered by the U.S. presidential election and historic transitions abroad.
| 8:30 AM | REGISTRATION AND BREAKFAST |
| 9:15 AM - 12:00 PM | MORNING SESSION |
| 9:15 AM - 10:45 AM | PLENARY I TransitionS 2009: Where Have We Been? Where Are We Going?
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| 11:00 AM - 12:00 PM | CONCURRENT BREAKOUT SESSIONS
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| 12:30 PM - 2:00PM | LUNCHEON Keynote Address: Beyond the West? New administrations in the United States and Europe face the challenge of a multipolar world Timothy Garton Ash, Senior Fellow, Hoover Institution; Professor of European Studies, University of Oxford; Isaiah Berlin Professorial Fellow, St. Antony’s College, University of Oxford |
| 2:30 PM - 5:30 PM | AFTERNOON SESSION |
| 2:30 PM - 4:00 PM | PLENARY II Power and Responsibility: Building International Order in an Era of Transnational Threat
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| 4:30 PM - 5:30 PM | CONCURRENT BREAKOUT SESSIONS
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| 5:30 PM - 6:30 PM | COCKTAIL RECEPTION |
KEYNOTE
Frances C. Arrillaga Alumni Center
Conferences
National War Powers Commission Report
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The Commission convened regularly over the past year in Washington, D.C. as well as at our partnering institutions: the University of Virginia, Rice University, and Stanford University. In preparation for these meetings and during our deliberations, we interviewed scores of witnesses from all political perspectives and professional vantage points, and we greatly thank them for their time. We also drew on the collective experiences of the Commission and its advisors in government, the armed forces, private enterprise, the law, the press, and academia. Finally, we reviewed and studied much of the law, history, and other background literature on this subject. The Commission's intent was not to criticize or praise individual Presidents or Congresses for how they exercised their respective war powers. Instead, our aim was to issue a report that should be relied upon by future leaders and furnish them practical ways to proceed in the future. The result of our efforts is the report that follows, which we hope will persuade the next President and Congress to repeal the War Powers Resolution of 1973 and enact in its place the War Powers Consultation Act of 2009.
We urge that in the first 100 days of the next presidential Administration,the President and Congress work jointly to enact the War Powers Consultation Act of 2009 to replace the impractical and ineffective War Powers Resolution of 1973. The Act we propose places its focus on ensuring that Congress has an opportunity to consult meaningfully with the President about significant armed conflicts and that Congress expresses its views. We believe this new Act represents not only sound public policy, but a pragmatic approach that both the next President and Congress can and should endorse.
The need for reform stems from the gravity and uncertainty posed by war powers questions. Few would dispute that the most important decisions our leaders make involve war. Yet after more than 200 years of constitutional his-tory, what powers the respective branches of government possess in making such decisions is still heavily debated. The Constitution provides both the President and Congress with explicit grants of war powers, as well as a host of arguments for implied powers. How broadly or how narrowly to construe these powers is a matter of ongoing debate. Indeed, the Constitution’s framers disputed these very issues in the years following the Constitution’s ratification, expressing contrary views about the respective powers of the President,as “Commander in Chief,” and Congress, which the Constitution grants the power “To declare War.”
Over the years, public officials, academics, and experts empaneled on com-missions much like this one have expressed a wide range of views on how the war powers are allocated — or could best be allocated — among the branches of government. One topic on which a broad consensus does exist is that the War Powers Resolution of 1973 does not provide a solution because it is at least in part unconstitutional and in any event has not worked as intended.
Historical practice provides no decisive guide. One can point to examples of Presidents and Congresses exercising various powers, but it is hard to find a“golden age” or an unbroken line of precedent in which all agree the Executive and Legislative Branches exercised their war powers in a clear, consistent, and agreed-upon way.
Finally, the courts have not settled many of the open constitutional questions. Despite opportunities to intervene in several inter-branch disputes,courts frequently decline to answer the broader questions these war powers cases raise, and seem willing to decide only those cases in which litigants ask them to protect individual liberties and property rights affected by the conduct of a particular war.
Unsurprisingly, this uncertainty about war powers has precipitated a number of calls for reform and yielded a variety of proposals over the years. These proposals have largely been rejected or ignored, in many cases because they came down squarely on the side of one camp’s view of the law and dismissed the other.
However, one common theme runs through most of these efforts at reform:the importance of getting the President and Congress to consult meaning-fully and deliberate before committing the nation to war. Gallup polling datathroughout the past half century shows that Americans have long shared thisdesire for consultation. Yet, such consultation has not always occurred.
No clear mechanism or requirement exists today for the President andCongress to consult. The War Powers Resolution of 1973 contains only vague consultation requirements. Instead, it relies on reporting requirements that,if triggered, begin the clock running for Congress to approve the particulararmed conflict. By the terms of the 1973 Resolution, however, Congress neednot act to disapprove the conflict; the cessation of all hostilities is required in 60 to 90 days merely if Congress fails to act. Many have criticized this aspect ofthe Resolution as unwise and unconstitutional, and no President in the past 35years has filed a report “pursuant” to these triggering provisions.
This is not healthy. It does not promote the rule of law. It does not send theright message to our troops or to the public. And it does not encourage dia-logue or cooperation between the two branches.
In our efforts to address this set of problems, we have been guided by three principles:
- First, that our proposal be practical, fair, and realistic. It must have a reasonable chance of support from both the President and Congress. That requires constructing a proposal that avoids clearly favoring one branch over the other, and leaves no room for the Executive or Legislative Branch justifiably to claim that our proposal unconstitutionally infringes on itspowers.
- Second, that our proposal maximize the likelihood that the President and Congress productively consult with each other on the exercise of war pow-ers. Both branches possess unique competencies and bases of support, and the country operates most effectively when these two branches of govern-ment communicate in a timely fashion and reach as much agreement aspossible about taking on the heavy burdens associated with war.
- Third, that our proposal should not recommend reform measures that will be subject to widespread constitutional criticism. It is mainly for this reason that our proposal does not explicitly define a role for the courts,which have been protective of defining their own jurisdiction in this area.
Consistent with these principles, we propose the passage of the War Powers Consultation Act of 2009. The stated purpose of the Act is to codify the norm ofconsultation and “describe a constructive and practical way in which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in significant armed conflict."
”The Act requires such consultation before Congress declares or authorizes war or the country engages in combat operations lasting, or expected tolast, more than one week (“significant armed conflict”).
There is an “exigentcircumstances” carve-out that allows for consultation within three days afterthe beginning of combat operations. In cases of lesser conflicts — e.g., limitedactions to defend U.S. embassies abroad, reprisals against terrorist groups, andcovert operations — such advance consultation is not required, but is strongly encouraged.
Under the Act, once Congress has been consulted regarding a significant armed conflict, it too has obligations. Unless it declares war or otherwise expressly authorizes the conflict, it must hold a vote on a concurrent resolution within 30 days calling for its approval. If the concurrent resolution is approved,there can be little question that both the President and Congress have endorsed the new armed conflict. In an effort to avoid or mitigate the divisiveness that commonly occurs in the time it takes to execute the military campaign, the Act imposes an ongoing duty on the President and Congress regularly to consult for the duration of the conflict that has been approved.
If, instead, the concurrent resolution of approval is defeated in either House,any member of Congress may propose a joint resolution of disapproval. Like the concurrent resolution of approval, this joint resolution of disapproval shall be deemed highly privileged and must be voted on in a defined number of days. If such a resolution of disapproval is passed, Congress has several options. If both Houses of Congress ratify the joint resolution of disapproval and the President signs it or Congress overrides his veto, the joint resolution of disapproval will have the force of law. If Congress cannot muster the votes to overcome a veto, it may take lesser measures. Relying on its inherent rule making powers, Congress may make internal rules providing, for example, that any bill appropriating new funds for all or part of the armed conflict would be out of order.
In our opinion, the Act’s requirements do not materially increase the bur-dens on either branch, since Presidents have often sought and received approval or authorization from Congress before engaging in significant armed conflict. Under the Act, moreover, both the President and the American people get some-thing from Congress — its position, based on deliberation and consideration, as to whether it supports or opposes a certain military campaign. If Congress fails to act, it can hardly complain about the war effort when this clear mechanism for acting was squarely in place. If Congress disapproves the war, the disapproval is a political reality the President must confront, and Congress can press to make its disapproval binding law or use its internal rule-making capacity or its power of the purse to act on its disapproval.
We recognize the Act we propose may not be one that satisfies all Presidents or all Congresses in every circumstance. On the President’s side of the ledger,however, the statute generally should be attractive because it involves Congress only in “significant armed conflict,” not minor engagements. Moreover, it reverses the presumption that inaction by Congress means that Congress has disapproved of a military campaign and that the President is acting lawlessly if he proceeds with the conflict. On the congressional side of the ledger, the Act gives the Legislative Branch more by way of meaningful consultation and information. It also provides Congress a clear and simple mechanism by which to approve or disapprove a military campaign, and does so in a way that seeks to avoid the constitutional infirmities that plague the War Powers Resolution of 1973. Altogether, the Act works to gives Congress a seat at the table; it gives the President the benefit of Congress’s counsel; and it provides a mechanism for the President and the public to know Congress’s views before or as a military campaign begins. History suggests that building broad-based support fora military campaign — from both branches of government and the public — is often vital to success.
To enable such consultation most profitably to occur, our proposed Act establishes a Joint Congressional Consultation Committee, consisting of the majority and minority leaders of both Houses of Congress, as well as the chair-men and ranking members of key committees. We believe that if the President and Committee meet regularly, much of the distrust and tension that at times can characterize inter-branch relationships can be dissipated and overcome.In order that Congress and the Committee possess the competence to provide meaningful advice, the Act both requires the President to provide the Committee with certain reports and establishes a permanent, bipartisan congressional staff to facilitate its work. Given these resources, however, our proposed Act limits the incentives for Congress to act by inaction — which is exactly the course of conduct that the default rules in the War Powers Resolution of 1973 often promoted.
To be clear, however, in urging the passage of War Powers Consultation Act of 2009, we do not intend to strip either political branch of government of the constitutional arguments it may make about the scope of its power. As the Act itself makes plain, it “is not meant to define, circumscribe, or enhance the constitutional war powers of either the Executive or Legislative Branches of government, and neither branch by supporting or complying with this Act shall in anyway limit or prejudice its right or ability to assert its constitutional war powers or its right or ability to question or challenge the constitutional war powers of the other branch."
In sum, the nation benefits when the President and Congress consult frequently and meaningfully regarding war and matters of national security. While no statute can guarantee the President and Congress work together productively, the Act we propose provides a needed legal framework that encourages such consultation and affords the political branches a way to operate in this area that is practical, constructive, fair, and conducive to the most judicious and effective government policy and action.
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Summer Fellows Program brings civic activists, policymakers to Stanford
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This year’s 27 Stanford Summer Fellows on Democracy and Development—outstanding civic, political, and economic leaders from developing democracies—were selected from more than 500 applicants to take part in the program, which FSI’s Center on Democracy, Development, and the Rule of Law (CDDRL) hosted July 30–August 17, 2007. They traveled to Stanford from 22 countries in transition, including Iraq, Afghanistan, Iran, Pakistan, China, Russia, Egypt, Nigeria, Kenya, and the Democratic Republic of the Congo. And like their academic curriculum during the three-week program, which examines linkages among democracy, economic development, and the rule of law, their professional experiences and fields of study center on these three areas, assuring that each fellow brings a seasoned perspective to the program’s discussions.
“Should the United States promote democracy? Can the United States promote democracy?” The curriculum for the first week focused on defining the concepts of “democracy,” “development,” and the “rule of law” and identifying institutions that support democratic and market development. Using selected articles and book chapters as starting points for discussion, CDDRL Director Michael A. McFaul and Marc Plattner, National Endowment for Democracy vice-president for research and studies, began the weeklong module with an examination of what democracy is and what definition or definitions might apply to distinguish electoral democracy, liberal democracy, and competitive authoritarianism. Another question discussed was whether there was such a thing as Islamic democracy, Asian democracy, Russian democracy, or American democracy.
Faculty including Diamond, CDDRL associate director for research Kathryn Stoner, Stanford president emeritus and constitutional law scholar Gerhard Casper, Stanford Law School lecturer Erik Jensen, and economists Avner Greif and Seema Jayachandran “team-taught” individual sessions as the week progressed. Fellows and faculty discussed how to define and measure development, the role and rule of law in societies, how legal systems affect democratic development, constitutionalism, electoral systems, parliamentary versus presidential systems, horizontal accountability, and market development. Fellows worked in groups to discuss and present their conclusions about an issue to their colleagues, comparing experiences and sharing insights into how well political parties and parliaments constrained executive power and how civil society organizations contributed to democratic consolidation.
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This component grounded the classroom discussions in a practical context. “It was important for our visiting fellows to interact with American practitioners, both to learn about innovative techniques for improving democracy practices but also to hear about frustrations and failures that Americans also face in working to make democracy and democracy promotion work more effectively,” explained McFaul. “We Americans do not have all the answers and have much to learn from interaction with those in the trenches working to improve governance in their countries.”
As the program’s curriculum shifted to democratic and economic transitions for week two, McFaul and Stoner-Weiss balanced the structure of the classroom with guest lecturers, a documentary film premiere, and field trips to Google headquarters and San Francisco media organizations to put into practical context the components discussed theoretically in the classroom. The field trip to San Francisco included a session with KQED Forum executive producer Raul Ramirez, a briefing with the editorial board at the San Francisco Chronicle, and a discussion of links between violence against women and children and poverty, health, and security at the Family Violence Prevention Fund.
“We are building an extraordinary community of democratic activists and officials who have a deeper understanding of the types of institutions that secure freedom, control corruption, and foster sustainable development.” The third week’s curriculum looked at international and domestic efforts to promote democracy, development, and the rule of law. This integrative module drew on the teaching caliber of Stephen D. Krasner (FSI senior fellow), Peter B. Henry (Graduate School of Business), Allen S. Weiner and Helen Stacy (Stanford Law School), and Nicholas Hope (Stanford Center for International Development) as well as Casper, Jensen, McFaul, and Stoner-Weiss. Through case studies and, in particular, comparison of successes and failures in the fellows’ own experiences, faculty and fellows explored and assessed international strategies for promoting rule of law, reconciliation of past human rights abuses, democracy, and good governance. The discussions, occasionally contentious, circled in on a set of central questions: Should the United States promote democracy? Can the United States promote democracy? What are the links between democracy and increasing the rule of law, controlling corruption, rebuilding societies shattered by massive human rights violations, and promoting good governance?
Despite the intellectual rigor of the coursework and discussion, and the exploration of practical applicability with guest speakers and field trips, the Stanford Summer Fellows on Democracy and Development Program was designed as much to stimulate connections among field practitioners and to provide a forum in which to exchange ideas. “Through the summer fellows program, we are building an extraordinary community of democratic activists and officials who have a deeper understanding of the types of institutions that secure freedom, control corruption, and foster sustainable development, and who are keeping in touch with us and with one another,” said Diamond. “When I meet our ‘alumni’ fellows in subsequent years, they speak movingly of the bonds they formed and the insights they gained in these three fast-paced weeks.”
To ensure they fulfill their goal of building a small but robust global network of civic activist and policymakers in developing countries, CDDRL launched a Summer Fellows Program Alumni Newsletter. The newsletter is based on an interactive website that will allow the center to strengthen its network of leaders and civic activists and facilitate more groundbreaking policy analysis across academic fields and geographic regions, the results of which will be promptly fed back to its activist alumni in a virtual loop of scholarship and policymaking. “We envision the creation of an international network of emerging political and civic leaders in countries in transition,” said Stoner-Weiss, “who can share experiences and solutions to the very similar problems they and their countries face.”
SSFDD ALUMNI FOCUS: VIOLET GONDA
A producer and pre s ent er
for SW Radio Africa (London), Violet Gonda was a Stanford Summer Fellow
on Democracy and Development in 2006, the same year her station was
named the International Station of the Year by the Association of
International Broadcasters. "CDDRL brings together a cross-section of
people from different backgrounds, different careers," Gonda said.
"Politicians, lawyers, activists ... all in the same room. It is an
amazing group of people."
Banned from returning to her home country because of her journalism work at the radio station-"we are welcome in Zimbabwe but only in the prisons"-Gonda "literally eat[s], breathe[s], and dream[s] Zimbabwe." The summer fellows program, she said, gave her a broad perspective on what's going on in other countries; "it is so intensive ... you can really compare and contrast democracy on every continent." One thing Gonda found is that "when you look at these leaders, you'd think they all were born of the same mother ... and the ways people respond to these crises are the same."
Gonda had such a positive experience at Stanford that she decided to apply for, and was accepted to, the prestigious John S. Knight Fellowships for journalists for the academic year 2007-08. "It's always been Zimbabwe, Zimbabwe, Zimbabwe," she said. "Now I finally have time to sit down and read a book, write an article, go to seminars, sharpen my skills." She is not exactly sitting still however. In December she gave a presentation on Zimbabwe's political situation for the Center on African Studies, and will also be discussing Zimbabwe at the Palo Alto Rotary Club and the Bechtel International Center. "Media in America does not have a lot of international news, particularly on Africa," Gonda said. "So it's a good opportunity to talk about Zimbabwe, and I will take advantage of it."
She is also working on developing new content for SW Radio Africa and plans to interview FSI scholars she met through the summer fellows program so "We are building an extraordinary community of democratic activists and officials who have a deeper understanding of the types of institutions that secure freedom, control corruption, and foster sustainable development." that Zimbabweans can understand what is going on in different countries. Close contact with program alumni means that she has friends and colleagues in other parts of that world who can be called on for their perspective on situations. While SW Radio Africa's mission is "to record and to expose" developments in Zimbabwe, Gonda explained, "it's good to compare, to show people we are not alone, that this is happening elsewhere."
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Divided Memories and Reconciliation
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The 70th anniversary of the 1937 Japanese attack on the Chinese capital of Nanjing, and the mass atrocities that followed, were marked in relatively low-key fashion in China. At a time when the Chinese government is anxious to improve its ties with Japan, it sent only junior officials to the commemoration ceremony unveiling a refurbished museum that attempts to document an event that has become emblematic, for the Chinese at least, of the war with Japan.
Despite the decision to downplay the anniversary, a wave of films, many of them backed by the Chinese government, had already been set in motion, begun at a time when Sino-Japanese tensions were high. Almost a dozen new movies on the “Nanjing Massacre,” including some supported by U.S. and European money, are in production. In Japan, a documentary supported by a group of conservative lawmakers and academics that claims there is no evidence of a Japanese massacre is also slated for release.
This is the latest indication of how Asia’s wartime past bedevils its present. From relations between governments to the interactions of ordinary citizens, disputes over past wrongs continue to occupy newspapers, cinema screens, and school textbooks. All nations in the region, rather than taking responsibility, have some sense of victimization and often blame others. Anti-Japanese sentiments seem undiminished in China and Korea, even among the younger generation with no experience of war or colonialism. The Japanese suffer from “apology fatigue,” questioning why they must continue to repent for events that took place six or seven decades ago.
The failure to address historical injustice and to reconcile differing views of the past has strained Sino-Japanese relations and friction between Japan and South Korea about Japan’s colonial past remains intense. Even South Korea and China are sparring over the history of the ancient kingdom of Koguryo . Taiwan as well is immersed in a re-examination of the historical past. The history question touches upon the most sensitive issues of national identity and now fuels the fires of nationalism in Northeast Asia.
There is widespread recognition of the need for reconciliation and the final resolution of historical injustices. But the existence of divided, even conflicting, historical memories is a fundamental obstacle to such reconciliation. All of the nations involved are bound by distinct, often contradictory perceptions of history and separated by different accounts of past events. These perceptions are deeply imbedded in public consciousness, transmitted by education, popular culture, and the mass media.
At the Shorenstein Asia-Pacific Research Center, we have embarked on the “Divided Memories and Reconciliation” project that seeks to tackle the history issue from a comparative perspective. Rather than trying to forge a common historical account or to reach a consensus among scholars on specific events, we believe that a more fruitful approach lies in understanding how historical memory is formed in each country. Recognizing how each country engages in the selective creation of its own, divided memory can lead to mutual understanding. Ironically, the very realization that there is no absolute historical truth on which everyone can agree creates a path to reconciliation.
These divided memories are a foundation of national identity—and the formation of national myths that have a powerful role to this day. Whether it is Japanese atrocities in China or the decision to drop atomic weapons on Japan, no nation is immune from the charge that they have formed a less than complete view of the past. All share a reluctance to fully confront the complexity of that past and tend to blame others.
The United States is no less guilty of forming its own divided memory of these historical events—witness the response to the controversy surrounding the Enola Gay exhibit at the Smithsonian Institution. And the United States had a key role to play in shaping the failure to confront these historical issues in a timely fashion, through its handling of the postwar justice issues for example and the troubling legacy of the problems left unresolved by the 1951 San Francisco Treaty.
Our research project compares the formation of these divided memories in China, Japan, South Korea, Taiwan, and the United States. The project has begun with a comparative examination of high school history textbooks in those five places, focusing on the period from the beginning of the Sino-Japanese war in 1931 until the formal conclusion of the Pacific war with the San Francisco Peace Treaty. This will be followed by a second comparative study of popular cinema dealing with historical subjects from roughly the same period. In parallel with these two comparative studies, Shorenstein APARC plans to design and carry out a comprehensive survey of the views of elite opinion-makers in all five countries on these historical issues. The project has garnered important support from donors in Asia and the United States, among them Korea’s Northeast Asia History Foundation, the Taiwan Foundation for Democracy, and the U.S.-Japan Foundation.
The translations of the most widely circulated high school history textbooks— both national and world history textbooks—have been completed. In February 2008, Shorenstein APARC will convene an international conference of historians and other scholars to conduct a comparative analysis of the textbooks and to discuss, from personal experience, the process of textbook writing and revision. Stanford historians Peter Duus and Mark Peattie, the authors of numerous volumes on this historical period, will lead the comparative analysis. Textbook authors from all five countries will also offer their views.
Textbooks have been a subject of particular controversy in Asia since the 1950s, though focused almost entirely on the content of Japanese textbooks and complaints from China, Korea, and elsewhere that they offer a distorted account of wartime events. One approach to solving this problem has been to form joint committees to study history and to create jointly written textbooks. These efforts are ongoing but they have proved so far to be a very difficult path to reconciliation. A Japan-South Korea joint committee to create a shared history was launched in 2001 but has made little real headway. A similar Sino-Japanese joint committee of 20 prominent historians was formed in October 2006 but it also quickly bogged down in disagreements over what to include in a joint history.
These official efforts only reinforce the value of the “Divided Memories and Reconciliation” project. As an effort by scholars, without official involvement, and as the first attempt to treat this issue comparatively, with the inclusion of the United States, it breaks new ground. The February conference will produce not only a book but also will be reproduced in workshops in all the participating Asian countries, held in collaboration with scholarly institutions. Together with our partners, Shorenstein APARC hopes to generate a public dialogue, not only with scholars but also with the general public through media and other venues. The project is also intended to provide policymakers in Northeast Asia and the United States with data and analysis that will aid their own efforts at easing tensions over the history issue.
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Preparation is key to avoiding 'worst-case outcome,' Chertoff says
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At an April 11 symposium in Washington, D.C., Homeland Security Secretary Michael Chertoff said while the best-laid plans are likely to change if a pandemic or bioterrorism attack hits the United States, having no plans in place is a sure guarantee for disaster. CISAC members Lynn Eden, Martha Crenshaw, and Mariano-Florentino Cuéllar participated in "Germ Warfare, Contagious Disease and the Constitution," a daylong event co-hosted by Stanford Law School. CISAC affiliate Laura K. Donohue conceived and developed the project, which aimed to bring together senior policy-makers and legal experts to discuss how issues of constitutional law inform responses to natural pandemics or bioterrorism attacks.
Secretary Michael Chertoff of the Department of Homeland Security delivered the keynote address April 11 at the panel titled “Germ Warfare, Contagious Disease and the Constitution” in Washington, D.C.
Although the best-laid plans are likely to change if a pandemic or bioterrorism attack hits the United States, having no plans in place is a sure guarantee for disaster, Homeland Security Secretary Michael Chertoff told policy-makers, government officials, constitutional law experts and law students at a symposium April 11 in Washington, D.C.
"Preparation won't eliminate the problems and the stress, and it is often said that no battle plan has ever survived first contact with the enemy," Chertoff told the roughly 200 people attending the event, "Germ Warfare, Contagious Disease and the Constitution," hosted by Stanford Law School and the Constitution Project, a nonprofit organization.
"But I can tell you this," Chertoff continued. "If you don't have a plan, you are definitely going to have the worst-case outcome. A plan at least gives you a running start."
During the symposium, experts discussed the need to reform the complex web of federal and state laws to enable agencies to respond effectively to deadly natural or manmade epidemics—from pandemic flu to smallpox and aerosolized anthrax—while protecting individual rights.
Earlier that day, about 60 people from the current and two previous presidential administrations, public health officials, Stanford academics and law students participated in a closed-door, fictitious scenario that explored the federal government's response to an unfolding deadly epidemic as it crossed state lines. Lynn Eden, associate director for research at Stanford's Center for International Security and Cooperation (CISAC) at the Freeman Spogli Institute for International Studies, moderated the session, which was developed in cooperation with experts from the Department of Homeland Security.
"I think it's the first time detailed issues of constitutional law have been brought to bear in a natural pandemic or bioterrorism exercise," Eden said afterward. "It's very hard to plan for a catastrophe. This approach brought another facet to bear on disaster planning."
Margaret Hamburg, a former assistant secretary in the Department of Health and Human Services, opened the symposium, which was broadcast live on C-SPAN from the Dirksen Senate Office Building. Kathleen Sullivan, director of the Stanford Constitutional Law Center, moderated a panel featuring Stanford law Professors Pamela Karlan and Robert Weisberg; Christopher Chyba, director of the Program on Science and Global Security at Princeton and a former CISAC co-director; Jeff Runge, assistant secretary in the Department of Homeland Security; Michael Greenberger, director of the Center for Health and Human Security at the University of Maryland; and Martin Cetron, director of the Division of Global Migration and Quarantine at the U.S. Centers for Disease Control and Prevention.
Sullivan opened the panel by reflecting on how recent health crises have informed ongoing legal and policy debates: "West Nile virus. Anthrax mailings. Avian flu—responses to these infectious disease issues and concern about bioterrorism are running about our minds as we think about the response to 9/11 and Hurricane Katrina, and the complex web of local, state and federal authority to deal with such emergencies. What does the Constitution have to say about our ability to deal with infectious disease, whether it's naturally occurring or composed as a weapon of violence?"
In the 21st century, Cetron explained, health officials still rely on a "14th-century toolbox of isolation and quarantine" to control an outbreak. That is "part of our modern reality," he said. "The biggest area is not lack of specific authority, but the fact that jurisdictions are highly complex when it comes to international ports of entry [and] interstate movement. There are often overlapping jurisdictions and overlapping authorities. If there's a gap in some of this, the risk is that neither the state nor the feds would want to step up to that responsibility."
Greenberger said state officials are often ignorant about what they can do in an emergency. "The powers given to governors are extraordinary," he said. Three statutes exist in Maryland to authorize declarations of emergency and allow the governor to enforce isolation and quarantine of infected people, order citizens to take treatment against their will, force doctors to serve in dangerous situations and seize hospitals. "What's extraordinary is that most governors don't even know they have this power," Greenberger said. "The extent of legal illiteracy in this area is shocking."
Despite such challenges, Chertoff praised the participants for tackling the issue. "I think for the first time we've begun to think very seriously and in a disciplined fashion about how to plan for dealing with a major natural pandemic or a major biological attack," he said. "I wish I could tell you these things are unthinkable. But the one thing I've learned in the last seven years is there's pretty much nothing that's unthinkable."
Stanford in Washington
Laura K. Donohue, a CISAC affiliate and a 2007 Stanford Law School graduate who is the inaugural fellow at the Stanford Constitutional Law Center, conceived the daylong event to bring together policy-makers and constitutional experts to discuss response to natural pandemics and bioterrorism. "It was a chance to bring together the policy world, both operational and strategic, and give them the opportunity to talk to legal experts," she said. "This helped policy-makers think through the issues and think outside the box, and it did so in a non-threatening manner."
Donohue said she was prompted to create the symposium after directing a CISAC-supported terrorism-response exercise in 2003 that involved more than 25 agencies at the national, state and local levels. "In these exercises involving first responders, legal issues always got pushed off the table," Donohue said. "I was struck by this. In an emergency, the law goes out the window. Then, when I got to law school, I saw the broader legal and constitutional context for this discussion."
With support from the directors at CISAC and Stanford Law School, and funding from donor Peter Bing and the Stanford Constitutional Law Center, Donohue brought the two groups together in a high-profile setting.
"This was Stanford in Washington," she said. "It was an opportunity for Stanford to be visible at the U.S. Senate with participation from leading people on these issues. There is no doubt we got an audience we wouldn't otherwise have attracted."
This article first appeared in Stanford Report, 4/16/2008.
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Poland in an Integrated Europe: Perspectives for sustainable development, greater innovation and strategic partnership in the globalized economy
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Economic security, sustainable development, clean energy and energy security, better regulations, greater innovativeness and the growing share of Polish economy in the international market; these are the main priorities of the Polish government and Ministry of Economy. How is Poland going to handle the 21st Century challenges? How will Poland find its niche in the globalized economy? These are the questions that will be discussed by the Polish Deputy Prime Minister and Minister of Economy, Mr. Waldemar Pawlak.
Born in 1959, Mr. Waldemar Pawlak graduated from the Warsaw University of Technology with an engineering degree in automotive and construction machinery. He has served as a member of the Polish Parliament since 1989; as President of the board of the Warsaw Commodities Exchange from 2001 to 2005; as Prime Minister of Poland in 1992 and again in 1993 to 1995; and as Deputy Prime Minister and Minister of Economy of Poland since November 2007.
This seminar is jointly sponsored by the Forum on Contemporary Europe, the Center for Democracy, Development and the Rule of Law, the U.S.-Polish Trade Council, and the Consulate General of the Republic of Poland in Los Angeles.
Oksenberg Conference Room
Waldemar Pawlak
Deputy Prime Minister and Minister of Economy, Poland
Speaker
Seminars