Efficient breach of public law: Civil society v corporate polluters

In the world of environmental regulation, any time a polluter can pay a fine smaller than the amount of profit taken by violating the law, that is termed an "efficient breach of public law" (McBride, 2012). It essentially means that BP can pay for killing vast stretches of the Gulf of Mexico, but if the payouts are less than the income from selling the oil from those wells, they will rationally choose to continue to pollute.

This is because corporations are coldly rational immoral "people," not "people" who share a social contract that would act in a decent fashion. The larger and more lucrative a corporation, in general, the greater the tendency to make efficient breaches of public law. Indeed, on back in 1897 in the Harvard Law Review, US Supreme Court Associate Justice Oliver Wendell Holmes, Jr. wrote (apropos of, but not contemplating, the Citizens United travesty of the Roberts court more than a century later): 

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience (qtd. in McBride, 2012, p. 406)

From the standpoint of strategic nonviolence, each movement and every potential nonviolent resister shares the same calculus, with one screamingly key difference; movements and individuals are expected to consider morals and ethics ahead of everything else, and generally, we do. We are better, in general, than corporations. That's saying little, of course, if we look to the behavior of giant energy companies, huge mining corporations, or sadly, even the companies that make shoes. 

What sort of calculations, then, are required to pit civil society against a corporate malefactor who is endangering the environment, public health, or creating other social ills? That is a major, complex consideration, of course, but a list of select factors to include in those calculations might help strategists think about it: 

• What are the strengths or potential strengths of the movement?
• What the strengths and weaknesses of the offending corporation?
• What numbers of participants are available to offer nonviolent opposition, even resistance, to the corporate polluter?
• What is the potential for growth in those numbers?
• What is the commitment of those who are seriously involved?
• Are there ways to help strengthen that level of commitment?
• Is there a social map of participants, of organizational partners, of collaborators in multiprongs of the campaign?
• Are there lawyers and paralegals available to help with either the defense of resisters or a civil action directed at halting the corporate pollution?
• Can elements of the government be recruited to take some of the burden?

There are many more pieces of this puzzle, of course, and taking cues from three general sources can help. 

First, what similar or analogous struggles have occurred that might have lessons to offer? Every campaign needs historians to excavate the records for lessons of value.

Second, are there allies who can offer advice and support?

Three, after learning as much as possible, engage creativity. Keeping the lessons learned from others in mind, how can the current movement adapt and synthesize principles, strategies, and tactics in unique response to unique situations? 

These are separate strands and are all important. With an ahistorical approach, really clumsy efforts can result that are embarrassing to watch. Without allies, a movement can sputter along for a long and ineffectual start. And without fresh consideration of all the possibilities, innovation doesn't occur. 

Pitting civil society against corporations is a combination of brute force and finesse, people power and knowledge-sharing versus money and smart strategic preparation of participants versus a phalanx of lawyers and public relations propaganda professionals. Metaphorically, the hired guns against the indigenous guerrilla, but civil society warriors use nonviolence and can seriously outflank corporadoes who cannot match the passion and commitment of a dedicated mass of participants. 

Gandhi, coming from a culture rooted in a combination of religious beliefs in either reincarnation or paradise for martyrs, could speak freely about courage to risk death and willingness to do so. Many lessons from Gandhi are seriously helpful; that one is seriously unhelpful in modern strategic nonviolent resistance unless there is serious, credible, existential threat that makes risks of nonviolence seem relatively easy to choose. The Gazan who contemplates the risks of nonviolent resistance versus sitting it out on the sidelines--when there are no sidelines--could be moved to action by an effective Palestinian Gandhi right now. But this is relatively rare; most of our nonviolent struggles are serious, but the consequences are usually incarceration, not death, and when people have a fair amount to lose, they cannot be expected to come out in numbers to pay the ultimate price. So keeping your people as safe as possible is a far wiser approach, and rhetoric which doesn't include grand promises to willingly die for your cause is a better recruitment strategy, wouldn't you agree?

The bottom line is the bottom line for corporations, usually. Unlike people, and unlike governments led by people, corporations will cave when costs are too high. Thus the "vaguer sanctions of conscience" can triumph, if the movement strategists are successful at what they should do.

Reference List


McBride, Cody. 2012. "Making Pollution Inefficient Through Empowerment." Ecology Law Quarterly 39, no. 2: 405-438. Academic Search Premier, EBSCOhost (accessed July 29, 2014).

American voters could stop Gaza/Israel bloodshed

More than any other time in the history of the conflict over the tiny ancient land we call Israel and Palestine, voters from a land across the sea hold unused power to change the basic course and outcomes of that conflict. At this time, those voters--who are also largely taxpayers--are keeping the conflict hotter and more bloody by their failure to prioritize the issue.

Polls are interesting to politicians. As of July 18-20, according to a CNN poll, a 57-34 percent majority of Americans side with Israel in the current conflict, calling Israel's violent efforts to root out and destroy Hamas's capacity to attack Israel "justified."

Four days later, Israel knowingly bombed one of the very rare sanctuaries from its missiles, a UN school in Gaza packed with women and children. The UN had been entirely forthcoming with precise coordinates of the location of the school in an effort to be sure that the highly sophisticated, precision guided Israeli Defense Force missiles would never hit the school. Instead, the IDF apparently programmed those specific coordinates into multiple missiles and struck the UN school in the lowest blow so far. The IDF has also cravenly bombed several hospitals in Gaza, with tired claims about Hamas storing weapons "nearby."

When Hamas and other terrorist organizations were sending suicide bombers into Israeli pizza parlors or onto Israel's campuses to inflict intentional damage to young Israeli civilians, the world, including American citizens, reacted with general horror and disgust, and rightly so. This level of incorrigibly blind hatred is clearly absolutely morally bankrupt. Satire service The Onion has captured the sick symmetry the best.  Hamas fires impotent rockets insanely straight into Israel's missile-destroying Iron Dome, stupidly targeting civilians and giving Israel a military justification for attacking Hamas, but nothing can give anyone any excuse for what Israel has done to hospitals and the UN school shelter. Nothing.

So Israel has officially joined this bloody dive into the moral cesspool, and American voters hold a huge piece of the responsibility for this, supplying the IDF with much of its war materiel and a massive amount of general military aid every year, $121 billion to date, according to the US Congressional Research Service report of April 2014. No other country gets this much and no other country ever gets the "no strings attached" beneficence awarded and afforded Israel, even including huge outlays of my money and yours to give straight to Israel's war profiteering corporations to use as they see fit. This means Israel is funded to do military research that even puts it ahead of US war profiteering corporations and the US military in some respects. Wow. And there are no human rights expectations on that money, nor is it required that Israel follow internationally accepted rules of engagement, laws of war, or laws prohibiting crimes against humanity.

Seriously. It is time to help Israel decide to negotiate with all its adversaries in good faith, something it has failed to do again and again. Stop all aid from you to them, from the US treasury to the Israeli government, from the Pentagon and State Departments to the IDF.

Obviously Israel has stockpiled enough weapons and ordnance to wreak hellfire for a long time, but they expect and clearly assume arrogant entitlement to this unique and grotesquely large condition-free military support which enables their increasingly rotten, inhumane conduct. They commit war crimes and know that it doesn't matter because their tsunami of war arsenals supplies and huge amounts of unrestricted funds is never going to stop.

Let's help Israel. Stop all aid. They would become much better citizens, neighbors, and world citizens if we could muster that domestic political will to require it of our elected officials. Start with our US senators, who passed a unanimous resolution supporting Israel's bombing of Gaza, Senate Resolution 498, as soon as Israel attacked. No US Senator voted against this, remarkably and shamefully, and Rand Paul even called for further US action, to cease the relatively small amount of US aid to the Palestinian Authority until they kicked Hamas out of the unity government. Perhaps Senator Paul has a small point, but the larger point, by far, is to end all US aid to the IDF. That is the single biggest step toward peace anyone could take right now and if you are an American voter, you have a say-so in this. Let's start saying so.

Israel drives away her friends

I have been a friend of Israel's since I was a boy, when the European Holocaust was a fresh memory and buttons were common that read "Israel must live." But each time Israel commits another war crime I join many around the world who are losing hope that Israel will regain some of the reputation for fairness and civilization that she used to have with so many.

Yes, I am aware that the founding of the nation-state of Israel was undemocratic, that it was an act of imperialism by Britain, the US, and other post-WWII powers, that 400 or more Palestinian villages were basically driven out of existence, into exile, and that Palestinians were not asked if they would mind just giving up their lives and livelihoods to satisfy the needs of peoples who had been persecuted in an entirely different region of the world. The fact is that no people in modern times have had to endure what Jews did in Europe. Two-thirds of all Jews in Europe were genocidally murdered by German Nazis and their collaborating Poles, Ukrainians, French, Dutch and others. Jews wanted a tiny homeland in their own historical homeland in and around Jerusalem. Was that asking so much for these victims?

But now, after all these years of persecuting Arabs, of treating Arab Palestinians like second-class citizens, and now bombing hospitals and UN schools with precision guided munitions fired knowing they would murder children--while Israeli civilians watch and cheer--Israel has turned away from civilized society and become a murderous terror state, even to her long-time friends. During the 2009 Cast Lead debacle the IDF was under great suspicion when it bombed a UN school and claimed Hamas terrorists were hiding there, and when it shot a rocket straight into Dr. Izzeldin Abuelaish's home, a wonderful Palestinian doctor and gentle father of daughters. But now suspicion has given way to certainty that Israel would rather commit war crimes than offer justice and security to Palestinians.

Palestinian man who just brought injured child from UN school to hospital (CNN)

I am sad to let my love for Israel go from my heart, but I cannot feel it any longer. For a long time I felt, well, both sides in this stupid struggle use violence and Israel is simply better at it, but I now see that they intend to murder children. They were given the coordinates of the hospitals and UN schools. They targeted them with precision.

Hamas has been cruel and terrorist all along, celebrating the slaughter of Israeli civilians and oppressing its own people mercilessly. Israel has joined them in the race to the ethical, moral bottom. I am now a former friend of the nation-state of Israel. Some will say it has taken me too long and some will say I'm wrong to abandon the government of a people who have been treated far worse than Palestinians ever have been treated, but this is just my own personal turning point. Bombing a UN school on purpose, multiple times is a war crime that delegitimates an entire government.

I am grateful that some Israelis continue to work for peace, including IDF members refusing service in this fresh hell. I am grateful that some Palestinians and some Israelis alike are just, nonviolent, and working for peace and reconciliation despite all the terror being committed by the "leaders" on both sides. Those are the people and organizations who have my admiration and loyalty. For me, on a personal level, it is now just an emotional wreckage. I can only see the struggle now as an analyst, as someone who examines conflict professionally as a professor, writer, and researcher. Israel has now broken my heart and I need to mourn that even as I continue to follow the current disaster and place it into its conflict context. I wonder if Israel knows just how many of us old friends are now departing from that friendship? Do they care?

For huge losses and massive victimization of your people, use violence!

There is violence everywhere in the world. Obviously, there is no hope for nonviolence. Not now, not ever again. Give it up, get your guns, and get something done for once! It's working for Syrians. Um, well, it's working for Ukrainians. Hmmm--it's certainly working for Gazans.

OK, so maybe it's working for those who currently have the power and not working so hot for those fighting for freedom. That's it! If you are Bashar al-Assad, Vladimir Putin, or the Israeli Defense Force, keep being violent--you're winning! See? Violence works Just Fine, thankyouverymuch. It all depends on who you are. Works well for everyone worth mentioning.

If you are the despot, stay the course and keep shooting. If you are the insurgency, well, man up and take your losses. Keep your dignity and your big guns. You will lose in most cases (Chenoweth & Stephan, 2014), but you'll show your cajones, and that's all that counts in the end, dead or alive.

On the other hand, if you are one of those wussies who likes to win and keep most of your people alive, alright, you can use strategic nonviolence, but don't expect to get on the cover of Ultimate MMA or 1st Freedom.

How can you worry about the costs? Hamas doesn't, and they've lost about 600 so far, including at least 125 children. Libyans didn't and about 20,000 of them died. The brilliant Free Syrian Army has made sure that the violence is constant and more than 150,000 are now dead, mostly civilian, including thousands of children.

The girly types in Tunisia did their revolution, toppled their dictator of 23 years using no violence at all and so only lost about 320 civilians, the Egyptians ended the 29-year rule of Mubarek using almost all nonviolence and approximately 900 civilians were killed. Ukrainians ousted Yanukovich and it only cost them about 100 dead. Where's the glory? Where's the chest-thumping testosterone in those measly body counts?

Stick with the manly way to resist. It's what we know and the costs are acceptable.

Reference List

Chenoweth, Erica, and Maria J. Stephan. 2014. "Drop Your Weapons." Foreign Affairs 93, no. 4: 94-106. Academic Search Premier, EBSCOhost (accessed July 23, 2014).

Making activists look better--or worse

What happens when a radical flank emerges from some campaign, some movement, or some organization? There are two stock answers.

One, the existence of a more radical element tends to make the formerly labeled extremists now seem moderate and they are better and more likely picked to be negotiating partners. Progress therefore was made possible more quickly by a radical flank and the threat it implied.

Two, existential threats or actual physical violence by a radical flank closes down negotiations, stiffens resolve, and increases brutality, even smearing it over onto the moderate majority of the campaign, leading to a failure, and a longer struggle toward smaller gains.

Which is true?

Much like we teach in conflict resolution, it's a both/and answer. It depends. 

Malcolm X claimed that his fiery rhetoric made Dr. King look like a good person with whom to negotiate. This is an interesting claim. There is no real test and evidence points in different directions. Yes, Malcolm X was scaring the white power structure and Dr. King looked much nicer. On the other hand, Dr. King's direct actions compelled public officials to negotiate and did not afford them any justification for refusing to deal. Dr. King was the one in the streets. Malcolm X was a powerful recruiter into the Nation of Islam and never dealt with public policy as Dr. King did. So it is less than clear but worth compiling thoughts and connections.

Israeli settlers beat up some Palestinian kids. Unknown Palestinians kidnap and kill three Israeli youth. Unknown Israeli radicals beat and burn a Palestinian youth to death. Hamas shoots rockets toward Israel. Israel bombs everything in sight. This is all the work of radical flanks on both sides capturing and controlling the narratives in their respective societies. No one wins and the day of peace is pushed further into the murky future. Radical flanks are a destructive waste of humankind and resources and tend to slow and even reverse progress toward freedom and justice.

Penn State researcher Mark Anner (2009) looks at transnational labor organizing and concludes that the left-wing labor organizers tend to be the Malcolm X factor to the more local conservative labor organizing goal of a local union. The left-wing radical flank tends to prompt the owner class to negotiate with the more conservative organizers who are willing to engage in cross-class collaboration. Anner did his field research in Honduras and El Salvador and used a robust methodology and strong analysis. Sadly, the unions in those two countries have not been any sort of panacea, as we now see tens of thousands of children fleeing unaccompanied toward and into the US, enough to prompt Rick "Radical Flank" Perry into calling up his Texas Republican Nationalist Guard. 

I'm going to suspect that when the actions of the radical flanks cross the line and become violent, all bets are off. Big buff intimidation is one thing. Rhetoric about taking over is one thing. Strident nationalism or any populist identity-thumping sloganeering is one thing. But killing children is atrocious. And when atrocities occur, that radical flank action is almost certain to intensify all negative, destructive aspects of the conflict, generalizing it, seizing the public narrative, driving the nonviolent elements to the margins or underground entirely, and drastically increasing all costs to everyone. Malcolm X was dignified and precise and never counseled anyone to do what the Black Panthers later urged, that is, to "kill pigs" (police) (as a young man I subscribed to the Black Panther Party paper and the violent rhetoric was truly intense). It is entirely possible that Malcolm X was indeed the exception, just as the apparel unions in Central America seemed to benefit from the radical flank leftist internationalist rhetoric, according to Anner. 

The mere threat of aggression or violence can diminish some movements quite surely. I have witnessed that directly, if anecdotally, as an organizer in my town, Portland Oregon. As long as the radical flank and the mainstream movement worked together and the radical flank only did its most rowdy (and I would argue reckless) actions at its own events and avoided such provocative behavior at our mainstream events, our numbers grew. When that dialog and collaboration ceased and the radical flank felt no constraints and acted out at all events, the movement shrank steadily. 

This is a complex question. For organizers, frankly, it seems most advisable to err on the side of caution. If the radical flank (which will always be with us) can be convinced to maintain a certain standard of agreed-upon behavior (or if they already do that by their own unilateral choice, as did Malcolm X), they can have either little effect or a positive effect. But sliding away from that in any way courts campaign failure and movement disintegration. At the least, organizers need to think quite carefully about how this figures into their decisions.

Reference List

Anner, Mark. 2009. "Two Logics of Labor Organizing in the Global Apparel Industry." International Studies Quarterly 53, no. 3: 545-570. Academic Search Premier, EBSCOhost (accessed July 22, 2014).

US Marine General: US military must buy Russian war machines. Seriously?

An alternative to violent force is nonviolent force. This can look like many things, but economic sanctions are a major category of compulsion by nonviolent means. Do they always work? This question is answered best with another question, does violence always work? In fact, no method of compulsion always works (with the possible exception of a crying baby).

When we consider trying to make an extremely powerful opponent behave in a certain way that we like, and to stop misbehaving in our estimation, economic sanctions are one of the only possible approaches. Flying to Russia with bombers and rolling into Russia with tanks is mutually assured suicide and clearly irrational at any level, no matter what Bill O'Reilly or Sean (Ins)Hannity might claim.

This leaves us with a few options, including global opprobrium, sanctions, and aid to Russian civil society opposition. Putin is nearly impervious to public embarrassment and scoffs at all such attempts. It is highly dangerous for Russian civil society to be branded as tools of the US or EU, so that limits support for their civil society dissidents, even if Russians come to know how much the West loves Pussy Riot. And so we look to sanctions.

By far the most screwed up approach to compelling an opponent to behave better is to be dependent on him. This is precisely what the US has done with Russia and most stupidly and astonishingly, with military contracts. It is beyond belief that the Pentagon should self-sabotage so utterly, but that seems to be their modus. A 17 July 2014 Reuters story details the missteps and the inevitable self-defeating outcomes.

President Obama announces more sanctions on Russia, including blocking new military contracts with them. His nominee for Commander DuJour in Afghanistan, Marine General Joseph Dunford, goes public and calls that "catastrophic." He says that "young Americans" will be exposed to increased attack in Afghanistan, primarily because the US won't be able to order spare parts for all 88  Russian Mi-17 helicopters it is gifting to the oh-so-democratic government we've installed in Afghanistan.

Are there words for the depths of corruption, incompetence, and inanity this situation reveals? I mean, I'm a pacifist but even I know how poorly it redounds on the US military to buy gear from the opponents, if not enemies. And Dunford even asserts that the US could not keep those helicopters in running order without Russian parts. Seriously? The US arms industry, by far the largest on Earth and in most respects the most advanced, cannot reverse engineer some spare parts?

It's one thing to buy some Russian ballet DVDs or Russian chess master instructional texts. Cutting off the supplies to those would not degrade anyone's security. But to seek out purchase of military hardware and then become so dependent on the adversary that Russian behavior toward Ukraine--possibly including providing the anti-aircraft missile that just shot down nearly 300 traveling people on Malaysian Flight MH17--is unanswerable by sanctions, that is by far the most short-sighted military policy imaginable, and the Pentagon imagines many of them on a daily basis.

Obama has tried sanctions to a greater degree than ever, but his White House team needs to replace many of the Pentagon team with those who can think a bit more clearly. Taking the Russian Mi-17 helicopters out of the equation, and never again purchasing a single military item from the Russians, would seem like a barebones basic first step. As it is, the US military knows it has zero military response to Russian aggression in Ukraine and the US military has now thus compromised the security of Ukrainians, Afghans, and US personnel. Brilliant.

Spiritual warriors or fear-based followers?

Analysts often note that resolve and resiliency are needed to prevail in nonviolent struggles for justice (Ackerman & DuVall, 2000; Sharp, 1973). Are these naturally occurring characteristics or can we identify some cultural factors that tend to produce more resolve and more resiliency?

Some cultures question those who fight, who make waves, who disrupt social harmony. These cultures tend to want peace at almost any price and at times are perhaps the most passive-aggressive in some ways, tending to gunnysack grievances until there is some explosion. When China explodes, it's devastating, and before that they seem to seek to maintain the appearance of harmony. France, on the other hand, is bubbling over all the time and only in the most marginalized neighborhoods (e.g. North Africa immigrants) are there paroxysms of social upheaval. Intercultural experts note that social harmony is a high value in some cultures and not so much in others. Resiliency is affected by the perceptions of conflict management styles and outcomes.

Another factor that tends toward more or less resiliency in a particular society is its intergenerational ties, strengths, or conflictual weaknesses (Seedsman, 2006). In cultures where great respect is shown for elders, resiliency tends to be greater. This is not necessarily because the elders have a corner on wisdom and certainly not because they are more talented than youth, but because this characteristic tends to make human resources more available to the community for all to share. These ties will weave a much stronger social fabric able to withstand setbacks, oppression from an external power, and even many years of apparent defeat.

We do not admire the warrior for her ability to kill, even in a violent military or quasi-military setting. We admire her because she is willing to die for us. This is why nonviolent warriors--those who imbue their preparation with a fighting but respectful spirit--are admired as much as soldiers. Name an African American Vietnam War hero (pretty silent......). Name a Civil Rights hero (MLK, Rosa Parks, Ella Baker, John Lewis, Diane Nash, Bernard Lafayette, James Lawson and on and on). These were people who went nose-to-nose with terrorists using only their spiritual resources, and who grew their community bonds as well as building bridges to other communities through actions that were so obviously spiritually grounded in goodness. They didn't need to beg for support; their actions were seeds that grew the support organically and swiftly.

There is also a religious mandate for nonviolence in some traditions, usually quite tiny compared to the megachurches. This mandate can help intracommunal resilience if the mandate is systemic, as it is with Quakers, Amish, and the various religiously pacifist Anabaptists. But if the mandate is akin to Leo Tolstoy's paradigm--basically, "God says be nonviolent or go to hell," it may not contribute so much to the resiliency needed to endure long struggles for justice, for policy change, or for protection of some valued status quo.

In sum, gratitude, hope, and nonviolence arrived at by kindly persuasion and example will tend to have strategic value; nonviolence based on fear is not conducive to strategic development.

references

Ackerman, P., & DuVall, J. (2000). A force more powerful: A century of nonviolent conflict. New York: St. Martin’s Press.

Seedsman, Terence A. 2006. "Keynote 2. Viewing Participants as Resources for One Another, Communities and Societies: Intergenerational Solidarity Toward a Better World." Journal Of Intergenerational Relationships 4, no. 1: 23-39. Academic Search Premier, EBSCOhost (accessed July 17, 2014).

Sharp, Gene (1973). The politics of nonviolent action: Part three. The dynamics of nonviolent action. Boston: Porter Sargent.