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Harvard Muslim Law Students Association launches #yourvoicematters community building campaign

“I was called a terrorist. I was pushed up against lockers,” said Yaseen Eldik ’16 of his experience as an American Muslim teenager in the immediate aftermath of the September 11^th attacks. “My family and I became a target for the anger and frustration in my community.”

In the wake of recent attacks by ISIS, and harsh political rhetoric surrounding Syrian refugees and foreign Muslims in general, Eldik and fellow Muslim students see a familiar pattern of fear and blame resurfacing.

Eldik is a member of the Harvard Muslim Law Students Association (MLSA) a student-run organization focused on community building and increasing awareness of issues that impact Muslims. On Dec. 15, 2015, members of the group published a brief video message to Muslim youth expressing empathy and support during a time of heightened tensions.

The video is part of a social media campaign to create a network of mentorship for Muslim American youth who are harmed and discouraged by Islamophobic sentiment.  Using the hashtag #yourvoicematters, the students hope to generate a positive dialogue focused on reclaiming and celebrating Muslim identity.

The child of Egyptian emigres, Eldik struggled to reconcile life as an American teen with his identity as a Muslim. “I began to see the way Muslims on Long Island felt less American,” he said, elaborating that common symbols associated with Islam—his mother’s headscarves for example—became a source of discomfort for many non-Muslims.

The students hope their campaign encourages Muslim youth to share their own stories and be active in their communities, and that that it also provides a sense of community to those feeling alone and a means of finding allies.

“Creating a virtual community and taking people out of their isolation is the immediate goal,” said Noorulain Zafar ’16, former MLSA president. “The message is ‘we understand what you are going through. We’ve been through that. You’re not alone in this, and we want to be here to help you in whatever way we can.’” She sees young Muslims as particularly vulnerable in the current political climate: “In addition to dealing with all the stuff you have to deal with anyway as a young person, you’re constantly bombarded with messages telling you that you’re not valued, or that you have to apologize for actions of others.”

Credit: Lorin Granger L-R: Aida Vajzovic ’17, Yaseen Eldik ’16, Noorulain Zafar ’16, Aya Saed ’17

Zafar grew up in Texas outside of Dallas after emigrating to the United States from Pakistan with her parents. Focused on human rights law and civil rights law, at HLS, she, like Eldik, says her identity as a Muslim American is intertwined with her professional interests. “I can’t easily separate the two,” she added. She got involved with MLSA after feeling that Muslim students did not have a substantive voice on campus. “Muslims are always being talked about, whether from a policy lens, or a legal lens, or a national security lens, but I felt that the Muslim voice was lacking in these conversations on campus,” she said.

Zafar sent the video to community leaders at her mosque in Texas, who then sent it out to other community and youth groups. The response has been positive so far, and she hopes that young people will feel inspired to get more involved.

Aida Vajzovic ’17 likened the campaign to the It Gets Better Project, in which LGBT adults offered words of support to youth grappling with isolation and depression as the result of bullying and harassment. “We want youth to be comfortable engaging in both aspects of their identity—as Americans and as Muslims,” she said, “to use their rights and privileges as Americans and the support and resources of their religion to help become the fullest they can be.”

Vajzovic was born in Bosnia and emigrated with her family to the U.S. as a refugee of the Bosnian War. She grew up in St. Louis, Mo., in a Bosnian community that was predominantly Muslim. When she arrived at law school she discovered the Muslim presence was not as large as she had hoped for, but quickly found a sense of community with MLSA. “It was nice being around people that identified with me in a different way than a lot of my classmates.” Growing that community has been one of her goals since getting involved.

Aya Saed ’17 also emigrated to the United States as a political refugee. Born in Saudi Arabia, she came to the United States in 1999 from Sudan. “9/11 really shook my place in this country, and my religion became a very integral part of my political identity,” she said. The feelings of shame and victimization she felt soon after arriving in the United States inspired her to study international relations and ultimately go to law school. Studying law and policy became a means of empowerment and protection for her and her family. “There’s a large part of me that’s committed to mobilizing Muslims in America so that we start functioning as a body that is heard by policy makers,” she said. “We just don’t have a collective identity that’s powerful, even though we have the numbers and the resources. We just haven’t built the infrastructure and I want to be a part of that process.” Saed is the current president of MLSA and a joint degree student, getting a J.D. at HLS and a Master of Public Affairs at Princeton University.

Because of their own experiences, Vajzovic and Saed find the recent political discourse surrounding Muslim refugees particularly distressing. “If the rhetoric today was the same twenty years ago, I don’t know if we’d be here. We might not be alive. That scares me,” said Vajzovic. “One thing this campaign aspires to do is to humanize the Muslim experience for non-Muslims. A lot of what you hear in the news are generic statements about hate crimes, or certain politicians speaking broadly about Muslims, but you don’t really hear Muslims themselves expressing how they’re feeling.” She feels that an important part of building a support network that includes non-Muslim allies is to share these missing perspectives and stories.

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Dean Minow at Michigan Commencement: ‘The world needs more upstanders’

Credit: Junfu Han The Ann Arbor News

In a keynote address delivered at the University of Michigan’s winter commencement exercises on December 20, Harvard Law School Dean Martha Minow urged students to address the serious challenges of our time and take action against injustice.

Minow, who has a B.A. in history from the University of Michigan, received an honorary doctorate during the ceremonies. Minow was honored for “demonstrating a deep commitment to equity in education and social justice throughout a distinguished career as an academic leader, legal scholar, teacher, human rights advocate, and public servant.” (Read full citation).

In her address, Minow called on graduates to be “upstanders” instead of bystanders. She defined upstanders as those willing to stand up against injustice, bigotry, violence and wrongdoing. “An upstander may speak out publicly or may instead engage in secret resistance. An upstander may rescue individuals who are in danger—but then face danger, too,” she said.

She credited her former student Samantha Power ’99, the current U.S. ambassador to the United Nations, for introducing her to the term.

Minow acknowledged that being an upstander often requires a person to overcome peer pressure, skepticism and fear. “We all know it is easier and more familiar to do nothing and say nothing.”

While courage and a willingness to take a stance on controversial issues are often needed to face serious challenges, Minow said, history has shown that people are more likely to stand up because of their relationships than due to a sense of personal courage or personal beliefs.

“In the 1964 Civil Rights Mississippi Freedom Summer project, thousands of student volunteers registered African-Americans to vote despite violence and church burnings. The key difference between those students who stayed through the summer and those who dropped out was not ideological fervor but instead personal friendships,” she said.

She observed that it takes time and effort to build a culture of mutual support. “Taking even seemingly small acts in one’s own school can build the culture that prevents violence, bullying, sexual assault, and racial micro- aggressions,” she said. “You can build a culture wherever you go that makes it easier for people to stand up against what’s wrong.”

Minow encouraged students to use the knowledge and friendships they have gained during their time at the university to make an impact.

“You each are headed to new communities, for work, further study, and family and civic responsibilities. Wherever you go, you can join with others to make it more possible for each next act of upstanding.”

Read full text of Dean Minow’s Commencement keynote.

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Disclosures on fracking lacking, study finds

Credit: Rose Lincoln/Harvard Staff Photographer A new study by Kate Konschnik (right), lecturer and director of Harvard Environmental Law Policy Initiative, and Archana Dayalu, a Ph.D. candidate in the Department of Earth and Planetary Sciences, claims that companies are less willing to disclose the chemicals they use while fracking.

As the growth of hydraulic fracturing, or “fracking,” transforms more rural landscapes across the heartland into industrial zones, companies are less willing to disclose the chemicals they inject into the ground, Harvard researchers have found.

In the race to find new energy sources, fracking ― the process of extracting oil and gas from shale beds ― has emerged as a dominant, if controversial, force, bringing jobs and wealth to many communities but also spreading unease about its environmental impacts, notably water contamination. Companies drill into the Earth and inject at extreme pressure a mix of water, sand, and chemicals to fracture rock and release oil or gas.

A lot of oil and gas activity is happening close to cities, communities, and schools. People are seeing this industrial activity right outside their door ... They want to know what chemicals are being used in their communities. There is so much we don’t know about this activity.

Kate Konschnik, Director of Harvard Law School's Environmental Law Policy Initiative

To address public health concerns, 28 states require companies to report the chemicals they use for the process. Twenty-three of those states direct companies to disclose the information to the national registry FracFocus.

But the amount of information withheld has increased the past three years, according to a study by Kate Konschnik, a lecturer and director of Harvard Environmental Law Policy Initiative, and Archana Dayalu, a Ph.D. candidate in the Graduate School of Arts and Sciences’ Department of Earth and Planetary Sciences.

An earlier report by the federal Environmental Protection Agency found that between 2010 and 2012, 11 percent of the chemicals used in fracking were unreported. Konschnik and Dayalu’s study found that between 2012 and April 2015, that rose to 16.5 percent.

The reluctance of companies to disclose the chemicals used in fracking has contributed to debate around the practice. While the public can find out what chemicals are used at other industrial sites in their communities through an EPA registry, most of the online chemical information on fracking is available only through FracFocus, a resource the study indicates is incomplete and inaccurate.

In 2005, Congress exempted fracking from the Safe Drinking Water Act, which requires energy companies to fully disclose the chemicals they force into the Earth. Prior to 2010, when FracFocus was launched, no states required companies to report the chemicals they used for fracking.

The findings surprised the researchers because companies seemed to disclose more information when FracFocus was a voluntary initiative led by the Department of Energy.

“We had expected that, because more of the disclosures were being made in response to legal requirements, they’d be more complete,” said Konschnik.

The study is not an attack against fracking, the researchers said, but it should raise concerns.

“Fracking has made the United States energy-independent,” said Dayalu. “But it doesn’t give the process a free pass against regulation.”

The study is the most comprehensive analysis to date of chemical disclosures registered on FracFocus. The researchers reviewed more than 96,000 disclosure forms, including nearly 2 million ingredient records. Among the cited ingredients were ammonium chloride, hydrochloric acid, and methanol, chemicals the Centers for Disease Control says can cause skin irritations, headaches, digestive disorders, lung damage and other health conditions.

Konschnik said FracFocus falls short of being a regulatory tool, and called for policy-makers to do more to ensure that citizens have access to complete and accurate chemical disclosures.

“We think states could signal to the oil and gas community that they take these disclosures seriously,” she said. “If companies don’t think regulators are taking this seriously, they won’t take the time and effort to make complete and correct disclosures.”

The study, “Hydraulic fracturing chemicals reporting: Analysis of available data and recommendations for policy makers,” was published this month in Energy Policy, an academic journal.

“A lot of oil and gas activity is happening close to cities, communities, and schools,” said Konschnik. “People are seeing this industrial activity right outside their door, they see trucks come up with chemicals, and that concerns them. They want to know what chemicals are being used in their communities. There is so much we don’t know about this activity.”

This article originally appeared in the Harvard Gazette on December 15, 2015.

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Summit convenes future leaders in the emerging field of food law and policy

As more and more people are becoming deeply concerned about what they’re eating and what it means for our health, the economy, the environment, and social justice, participants in a recent gathering at Harvard Law School hope to spark the growth of a nationwide student network for making significant contributions to the emerging field of food law and policy.

The first Food Law Student Leadership Summit brought together 100 law students from 50 law schools from around the country for a weekend-long meeting with national experts in the food law field. The Summit, which took place from October 2-4 at Harvard Law School, was hosted by the Harvard Food Law and Policy Clinic (FLPC), a division of the Center for Health Law and Policy Innovation of Harvard Law School (HLS).

“The Food Law Student Leadership Summit was conceived as a way to convene interested law students from around the country to learn from national experts about a variety of key food law issues; develop strategies to start or expand student food law organizations; and build a national network of colleagues,” said Emily Broad Leib, director of FLPC and assistant clinical professor of law at Harvard. “Additionally, we wanted to learn how the Food Law and Policy Clinic, and Harvard Law School, can play a role in supporting a food law student network by providing information and resources.”

In her opening address to summit attendees, Dean Martha Minow stressed the importance of food policy.  “Food justice is the heart of social justice; everybody has to eat,” she said. The dean highlighted the range of programs and initiatives at Harvard Law School, including FLPC, the Food Law Lab, and the “2014 Deans’ Food System Challenge,” which called for proposals for making the food system healthier, more sustainable and more equitable. She said these programs and initiatives demonstrate the law school’s role as a trailblazer in the cutting-edge field of food law and policy.

Bravo! RT @FoodandAgLaw: Robert Greenwald just taught me all about how Food is Medicine! http://t.co/KYx3kOlol2 #FLSLS — Jean Terranova (@JeanTerranova) October 3, 2015

In addition to Broad-Leib, many Harvard Law School faculty participated in the Summit, including Professors Robert Greenwald, Kristen Stilt, and Peter Barton Hutt. Alexander Leone and Alex Jordan, both third year students at HLS, also spoke at the Summit, representing the Harvard Food Law Society.

VIDEO: Food Law Attorney Panel: Movers and Shakers in Food Law and Policy

Seminars held on both days of the Summit focused on a wide range of topics, including food labeling, the use of pharmaceuticals in farm animals, and food waste. Greenwald led a seminar on food as medicine, Drake Law Professor Neil Hamilton led a seminar on the Farm Bill, and Ona Balkus, a senior clinical fellow in the Food Law and Policy Clinic, led a discussion on the USDA Dietary Guidelines. On Saturday afternoon, a panel of food law attorneys, whose practice areas included policy, transactional and litigation work in areas as diverse as labor law, business and tax law, and animal law, talked about their careers and offered advice on entering the field of food law.

Kristen Stilt teaching about religion and farmed animals. #FLSLS pic.twitter.com/AjVIjjP4Sr — Harvard FLPC (@HarvardFLPC) October 3, 2015

Between the topical seminars and panel presentations, attendees took part in a policy simulation in which they assumed different roles and considered hypothetical scenarios that mirrored food system problems facing policymakers today. They devised policy proposals that attempted to resolve many of the tensions that animate food policy discourse: paternalism versus consumer autonomy; economic expediency and environmental protection; and corporate speech and the public interest, for example.

Solving the obesity and diabetes crisis with a negotiation simulation! Such an awesome experience at #FLSLS pic.twitter.com/6RvTU92ddx — Hannah Nicholson (@HannahNich) October 3, 2015

Michele Merkel, co-director of Food & Water Justice, the legal arm of Food and Water Watch, discussed the adverse effects of concentrated animal feeding operations, commonly referred to as CAFOs or factory farms, in her keynote address on Saturday evening. Merkel said that in spite of the fact that U.S. factory farms produce enough toxic waste “to fill the entire Empire State Building every day, there is rampant non-enforcement of our laws.”

VIDEO: Michele Merkel’s Keynote Speech

Merkel urged student attendees to continue following their passion: “The person who joins the food movement today could make history tomorrow. Why not you?” The Summit wrapped up with a student panel on launching and sustaining student food law societies within law schools. Students from Drake University Law School, Seattle University School of Law, West Virginia University College of Law, and Yale Law School served as panelists and Nathan Rosenberg ’11, a co- founder of the Harvard Law School Food Law Society, served as moderator.

VIDEO: Student Panel on Food Law Societies

Several student attendees shared their reflections on the summit in blog posts. Dana Shaker, Georgetown University Law Center, wrote: “When I arrived at the Summit, I knew instantly that a cooperative spirit wasn’t just ‘present’ like I had hoped. It was the core of the gathering. Professionals and academics dined at the same tables as Summit participants, discussing their own work and listening to and encouraging student interests. … Everyone there was intent on forming a food law community, a network of people they could reach out to in their professional lives who were equally passionate about forging a career in this rapidly expanding area of law.”

The Food Law Student Leadership Summit is just one of many initiatives for the Harvard Food Law and Policy Clinic.  Over the coming months, FLPC will work with interested students to develop a national leadership structure, regional networks, a website and hub for resources, and cross-network projects.

“The feedback we’ve received from attendees about the Summit has been overwhelmingly positive,” said Broad Leib. “It’s encouraging to hear so many law students say they feel empowered, inspired, and ready to take action as a result of coming together. I look forward to seeing how the work we have begun here grows and reaches new law students in the coming years, and to helping to build a food law student network across the nation.”

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Walter Leonard, champion of diversity in higher education: 1929 – 2015

Credit: Martha Stewart

Walter Leonard, an educator and leader who played a critical role in expanding diversity at Harvard Law School and then at Harvard University in the late 1960s and 1970s, died on December 8, 2015, at the age of 86.

In the work he did as Assistant Dean and Assistant Director of Admissions at Harvard Law School at the end of the 1960s, during the deanship of Derek Bok, Leonard built the foundation for the education of more minority and women lawyers than almost any other administrator in the United States, through a skillful and multifaceted strategy that included conferences, recruitment, and outreach programs.

In 1971, after Bok became President of Harvard, he appointed Leonard as a Special Assistant. In that role, Leonard was the primary force behind the Harvard Plan, a blueprint for establishing equal educational and employment opportunities in higher education. The Plan was cited approvingly by the United States Supreme Court in the Regents of the University of California v. Bakke decision and adopted by hundreds of colleges and universities nationwide. Leonard also chaired the committee that established Harvard University’s W.E.B. Du Bois Institute for Afro-American Research.

“Walter Leonard was an exceptional leader during a critical moment in the history and advancement of higher education in the United States,” said Harvard Law School Dean Martha Minow. “With creativity, diplomacy, vision, patience and steadfast determination, he was a pivotal catalyst for diversity and for the recruitment of minority students, faculty and staff. He also helped the Law School and then the University to navigate smoothly through the turbulence and upheaval that marked the years of change in which he played such a vitally important role. The work he did at Harvard had a ripple effect across the nation, and his influence and impact were ultimately felt in higher education nationwide. He was a truly inspiring agent for change, and his life inspires us to carry forward, in new ways, the work he did here.”

In 2011, the Law School bestowed Leonard and Bok with the HLS Medal of Freedom, the school’s highest honor, during Harvard Law School’s 3rd Celebration of Black Alumni.

Said Bok: “Walter Leonard became my colleague toward the end of my first year as Dean of the Law School at a critical time in our effort to achieve racial diversity in our student body and to achieve such diversity throughout the Law School — in the faculty, the staff, and the construction workers in the building of Pound Hall. The atmosphere was tense and progress could not be as rapid as many of our students felt was necessary. Walter’s presence turned out to be a real blessing to all concerned. To me, he was a good friend who was able to convey a clear and discerning sense of what concerned the students and why it was important while still understanding my need to be responsive without violating important academic principles or agreeing to steps that would ultimately work to the disadvantage of everyone, including the minority students themselves.”

“His position was extremely delicate and difficult,” said Bok, “and he carried it out with great distinction. His performance was recognized by the award which was bestowed on both of us a few years ago. His award recognized the understanding, perceptiveness, and integrity with which he dealt with the problems we confronted, always with a determination to make the experience of black students here a positive one for them and a foundation for the many contributions they could make to our society after they graduated. My award simply recognized my willingness to be guided by his good judgment and his ability to see all sides of a very complex and extremely important challenge and opportunity for the Law School. I cherish the memory of a very fine and good friend.”

In 1976, Leonard left Harvard to become President of Fisk University. In a Harvard Crimson story noting his departure, Archibald Cox `34, Williston Professor of Law and a close friend of Leonard’s, said: “His judgment and his moral strength were of enormous value. I was there — he was a person to rely on, to lean on. … I remember this because those affairs were very tense and difficult. You remember the people who were strong and helpful. Walter Leonard was particularly so.”

Recalling another side of Leonard, Cox said, “His persuasiveness, his ability to exemplify the highest kind of standards and intellectual and moral qualities, are things which I put down that enable this man to be effective with both his professional colleagues and his students.”

According to an account in the Harvard Crimson, Leonard effected “tremendous advances in the numbers of and attitudes toward, minority students and women [at HLS], setting a new tone for other institutions in the country and other parts of the University. An administrator at the Law School told the Crimson that Leonard was responsible for a very large increase in the number of minority applicants to the school in the 1969-71 period, having done a superior job of recruitment. “Both in intensity, coverage, manner and style, he brought in applicants,” he said.

Leonard was also known to spend tremendous amounts of time with students, counseling them and discussing their aims. “In a period when black students here felt in a strange environment, he managed to give them the feeling that they belong here,” a colleague told the Crimson. “It was not easy to do.”

Walter Leonard was born on October 3, 1929, in Alma, Georgia. His early education was in the Savannah, Georgia, public schools and later at Savannah State College. He went on to study at Morehouse College, Atlanta University’s Graduate School of Business, Howard University School of Law and Harvard Business School.

In 1978, as president of Fisk University, Leonard famously used a $1.5 million insurance policy on his life as collateral to obtain a loan to keep the school from closing. Fisk was nearly bankrupt when Leonard assumed the presidency in 1977. Over the course of his seven-year presidency, Leonard managed to raise more than $12 million dollars for Fisk.

Following his retirement from the presidency of Fisk, Leonard was appointed a Distinguished Senior Scholar at Howard University; Executive Assistant to the Governor, U.S. Virgin Islands; and National Executive Director, Cities in Schools (Communities in Schools).

A prolific author, Leonard published scholarly articles dealing with such topics as the First Amendment, Black capitalism, education, the challenges facing Black students in predominantly white schools, student protest movements in universities, international trade, housing, and affirmative action.

Over the years, Leonard served as a visiting professor or lecturer in law at many of the nation’s leading universities, including Virginia, Kansas, Howard, Pennsylvania, Boston College, Harvard, Temple, California (Davis) and Maryland. He also served as a board member or consultant for many of the country’s most renowned policymaking organizations, including the Ford Foundation, the U.S. Department of State, the U.S. Department of Commerce and the United Negro College Fund. Two fellowships were created at Oxford University in his honor.

At HLS, DOJ’s top national security lawyer discusses U.S. vulnerability to cyberterrorism

Credit: Heratch Photography

John P. Carlin ’00, assistant attorney general for National Security, spoke last week at Harvard Law School on the National Security Cyber Threat, at an event hosted by the Harvard National Security Journal.

In his prepared remarks, Carlin, the government’s top national security lawyer, described a wave of new cyber threats and intrusions and concern about future attacks:

“Terrorists seek to exploit our reliance on weak or outdated network security to harm our way of life. To date, terrorist groups are largely only experimenting with destructive hacking, but they are developing more advanced capabilities.  We’ve also seen calls to action through Internet jihad by both Al Qaeda and ISIL, and our international partners have experienced attacks conducted by purported online jihadists. We are concerned that those groups will not hesitate to deploy offensive capabilities if they are able to acquire them,” said Carlin.

“To deter our adversaries, we must know who they are and what makes them tick. We must be able to attribute their actions with confidence—down to the country, government agency, organization or even individuals involved.

“And that is no easy feat. Anonymous accounts, third-party proxies, rented and compromised servers and the international nature of our investigations make our jobs tough. But through a mix of formal authority, cyber expertise and cooperative relationships with private-sector victims and international partners, we can track down cyber attackers and ensure their crimes are not without significant cost.

“Law enforcement agencies and the Department of Justice are uniquely good at these kinds of investigations. And they are the bedrock of our approach because they facilitate the use of so many other tools that promote deterrence. And we have already seen results.”

[Read the prepared remarks in their entirety.]

Credit: Heratch PhotographyCarlin with Professor Jack Goldsmith

After his address, Carlin answered questions from HLS Professor Jack Goldsmith, editor of the LawFare blog, and from members of the audience.

As assistant attorney general for national security, Carlin oversees nearly 400 employees responsible for protecting the country against international and domestic terrorism, espionage, cyber, and other national security threats. He  joined NSD after serving as chief of staff and senior counsel to Robert S. Mueller, director of the FBI. A career federal prosecutor, Carlin previously served as national coordinator of DOJ’s Computer Hacking and Intellectual Property  program and as an assistant U.S. attorney for the District of Columbia, where he prosecuted cases ranging from homicide and sexual offenses to cyber, fraud, and public corruption matters. Carlin received the Samuel J. Heyman Fellowship for federal government service from HLS and served as articles editor for the Harvard Journal on Legislation.

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Company’s remedies for rape in Papua New Guinea deeply flawed

A controversial process created by one of the world’s largest gold mining companies to compensate women for rapes and gang rapes in Papua New Guinea was deeply flawed, said human rights investigators and legal experts at Columbia and Harvard Law Schools in a study released in November.

The three-year study of Barrick Gold’s remedy mechanism at its Porgera gold mine found that the effort to provide packages to 120 rape survivors was flawed from the start and fell far short of international standards.

“These are some of the most vicious assaults I have ever investigated,” said Professor Sarah Knuckey LL.M. ’06, one of the lead authors of the report, and the Director of the Columbia Law School Human Rights Clinic and Human Rights Institute. “The women and local communities had to struggle for years just to get the company to admit what happened.”

Most women were offered less than $6,000 USD each in compensation, and were also given some counseling and healthcare. Knuckey continued, “They had been suffering for far too long, and deserved much more.”

For several years, security guards at the Porgera mine physically assaulted and sexually abused members of the community. It was only after repeated pressure by local and international groups that the Canadian mining company finally acknowledged the sexual violence and launched an internal investigation in 2010. The company created a remedy mechanism to handle claims by survivors two years later.

The legal investigators interviewed dozens of survivors for the 129-page report, Righting Wrongs?, which found that, in this situation, the women should not have had to sign away their legal rights to sue in order to receive remedies. In addition, the process excluded survivors of many other, non-sexual assaults by company guards, and had insufficient outreach, so some survivors did not know about the mechanism in time to bring their cases. The report also says that inadequate security measures were put in place for survivors, and that some women have reported being threatened and beaten up by family members when their rapes were discovered.

“If remedy mechanisms are to have any chance of addressing egregious violations, they must take on the gross power imbalance between a company and survivors,” said Clinical Professor Tyler Giannini, one of the lead authors and Clinical Director of the Human Rights Program at Harvard Law School. “Many of the women signed the company’s agreements because they felt that they simply had no other choice.”

Credit: Sarah Knuckey View of the mine site from a village in Porgera

The importance of power was highlighted again this year, when eleven women who obtained U.S.-based lawyers refused to accept the company’s packages, and were given confidential settlement packages believed to be about ten times greater than the amount given to the roughly 120 women who used Barrick’s process. Upon learning this, the lesser-compensated survivors came together to demand more. The company quickly more than doubled their packages, which are still far less than what those who had U.S. lawyers received, and women in Porgera continue to demand that they should receive equitable packages.

The report found that there were some positive features of the mechanism, but that necessary safeguards such as consultation and prior engagement with the survivors and robust legal counsel for the women were either unimplemented or poorly implemented.

The report is part of an ongoing project addressing the human rights impacts of gold mining operations in Porgera, Papua New Guinea. Since 2006, the report’s lead co-authors, Giannini and Knuckey, have investigated allegations of human rights violations at the site of the Porgera Joint Venture mine.

Credit: Emily AllenPanning for gold in Porgera

Credit: Emily AllenThe “red water” tailings waste coming from the mine in Porgera. Porgerans often go here to pan for gold.

Giannini praised the contributions of Knuckey, his former student: “One of my favorite parts of doing clinical work is when you see a former student become a colleague. Sarah’s really been a leader on this issue over the last decade, and it’s been energizing to work by her side.”

More than a dozen Harvard Law School students and clinic fellows were contributing authors and members of the research team, including Flora Amwayi ’13, Skawenniio Barnes ’14, Marie Cita ’14, Krizna Gomez LL.M. ’13, Reeba Muthalaly, LL.M. ’14,  Tamaryn Nelson MPA ’14, Kiri Toki LL.M. ’16, and Helen Zhang ’16. Some traveled to Porgera to conduct interviews over the past three years. Harvard Law School Clinical Advocacy Fellow Amelia Evans LL.M. ’11 supervised a research trip to Papua New Guinea that contributed to this report.

Giannini lauded the commitment of current and former International Human Rights Clinical students who contributed to the project.“While the students and alums on this project have changed, the level of commitment through the years has not. It’s been tremendous,” said Giannini.

Kiri Toki said: “This is a very different approach to lawyering than I’ve experienced previously. It was eye-opening to see how much work needs to go into developing relationships with survivors over many years to sustain an effort like this.”

Helen Ye Zhang added: “The more I work on this issue, the more I feel the weight of it. I don’t think it’s even possible for us to do enough, but I hope that our effort has made a difference for the survivors.”

Rather than company-created models, the report suggests an approach that brings companies, survivors, and communities into the joint design of the remedy process. This approach centers the survivors in the process from the outset, and can help address power differentials. The report also calls on the company to provide additional remedies to the 120 women so that their agreements are in line with the amounts received by the eleven women represented by U.S. attorneys; void all legal waivers signed by women; provide remedy to individuals who faced other security guard abuses, including physical assaults; and to provide urgent security protection to women who are currently at risk.

The remedy mechanism is one of the first to be created after the release of the United Nations Guiding Principles on Business and Human Rights in 2011, which set out the responsibilities of companies for human rights. The Porgera mine has been open since 1989. Barrick Gold became majority-owner and operator of the mine in 2006. Since then, the clinics have actively investigated the situation at the mine. The Columbia and Harvard human rights clinics presented the report this week in Geneva at the 4th Annual United Nations Forum on Business and Human Rights.

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Freeman, Lazarus author amicus motion on behalf of former EPA Administrators to back Clean Power Plan

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Harvard Professors Jody Freeman and Richard Lazarus to write brief

Professors Jody Freeman LL.M. ’91 S.J.D. ’95 and Richard Lazarus ’79

Former United States Environmental Protection Agency Administrators William D. Ruckelshaus and William K. Reilly formally moved today to participate in pending litigation in support of the legality of the President’s Clean Power Plan. The Clean Power Plan seeks to reduce greenhouse gas emissions from the nation’s single largest source of such pollutants: existing power plants. The motion seeking leave to file a friend of the court brief was written by Freeman and Lazarus of Harvard Law School, who will also author the brief.

Ruckelshaus served as EPA’s first Administrator under President Richard Nixon and returned to EPA to serve as its fifth Administrator under President Ronald Reagan. Reilly was appointed by President George H. W. Bush to serve as EPA’s seventh Administrator. As described in their joint motion, filed today with the United States Court of Appeals for the District of Columbia Circuit, they believe that the Clean Power Plan represents the very kind of pragmatic, flexible and cost- effective pollution control program they endorsed while at EPA. The Plan properly respects State sovereignty by providing States with substantial authority and discretion to decide whether and how best to administer its requirements. The Clean Power Plan also falls well within the bounds of an Administrator’s authority to adopt reasonable interpretations of existing statutory language to address unforeseen problems without the need to resort to congressional amendment of current law. Finally, the Clean Power Plan’s consideration of fuel shifting as a cost-effective means of reducing pollution, and its practical approach to the operation of the nation’s electricity grid, reflects a sensible and energy-sensitive approach to pollution control in line with the Agency’s best traditions.

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Lessons from Lessig: After presidential bid, HLS professor talks fairness in politics

Jon Chase/Harvard Staff PhotographerHarvard Law School Professor Lawrence Lessig (left) shared what he learned from his failed presidential bid during a conversation with colleague Jonathan Zittrain. “Money has corrupted our political process,” said Lessig.

When Lawrence Lessig ended his issue-oriented quest for the Democratic Party’s nomination in the 2016 U.S. presidential election, he vowed to continue his campaign to reform election finance practices and reduce the influence of money in politics.

“The fight is not over,” said Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School, during a conversation with his colleague Jonathan Zittrain about the lessons learned while campaigning for election finance reform.

Before a packed room at Austin Hall on Monday night, Lessig said the issue at stake is the future of American democracy.

“Money has corrupted our political process,” said Lessig. “They [in Congress] focus too much on the tiny slice, 1 percent, who are funding elections. In the current election cycle, 158 families have given half the money to candidates. That’s a banana republic democracy, that’s not an American democracy.”

Members of Congress spend a good deal of their time fund-raising for future campaigns, and the U.S. Supreme Court has removed most of the previous limits on campaign spending.

Lessig said he decided to drop his bid after he was excluded from the Democratic Party’s first debate due to his low poll numbers. He made the announcement with a video released on YouTube early this month.

In a candid conversation with Zittrain, Lessig spoke about his reasons for pushing the election finance issue in the campaign. Zittrain is George Bemis Professor of International Law at Harvard Law School, faculty director of the Berkman Center for Internet & Society, professor of computer science at the Harvard John A. Paulson School of Engineering and Applied Sciences, and a professor at the Harvard Kennedy School.

“What were you thinking?” asked Zittrain.

“You were responsible for this,” quipped Lessig.

Lessig shared his frustration at not having been able to take part in the Democratic Party’s first debate, which, he said, would have allowed him to draw more attention from the public and the media about the need to reform the way political campaigns are funded.

Asked whether he thought about suing the Democratic Party for not allowing him in the debate, he said he received a call from a lawyer suggesting just that.

“I love the law and making justice work, but I wanted to make democracy work,” said Lessig.

He described his candidacy as a referendum on campaign finance reform, but he also focused on the need to reform Congress, which he said is a “broken and corrupted institution” undercut by big money and political gerrymandering. Of these two evils, according to him, the more disturbing has to do with campaign finance because it makes democracy less equal and representative.

Citizens, he said, should embrace the idea of equality to help make democracy work.

“Corruption is the disease, and equality would be the cure,” he said. “We never really included people equally, African-Americans, women, the poor. We ought to embrace the idea of equality inside our political system.”

Committee exploring whether Harvard Law School shield should be changed

Harvard Law School Dean Martha Minow has announced the creation of a committee to research if the school should continue to use its current shield.

The shield is the coat of arms of the family of Isaac Royall, whose bequest endowed the first professorship of law at Harvard. Royall was the son of an Antiguan slaveholder known to have treated his slaves with extreme cruelty, including burning 77 people to death. In 1936, the Harvard Corporation and Radcliff Trustees adopted seals for 27 Harvard academic units, naming the Royall crest, with its three sheaths of wheat, as the Law School shield.

Because of its ties to slave labor, the shield has come under fire. In October, a group of law school students formed an organization called “Royall Must Fall” to demand that the law school discontinue using the Royall family crest as its symbol. In November, the committee wrote an open letter to Dean Minow, demanding the end of the use of the sheild at HLS.

“As Harvard Law School prepares to observe its bicentennial in 2017, it is important that we mark not only our accomplishments but also the difficult aspects of our history,” said Minow. “We have been forthright in confronting and acknowledging the legacy of Isaac Royall, a slaveholder who established the first professorship in law at Harvard. Each year, as a new class arrives, I urge students to contemplate this legacy and to use the injustice of Royall’s wealth as an example of the kind of injustice that they will have the power and the tools to change as law students and lawyers. Symbols are important. They become even more important when people care about them and focus on them. I have asked distinguished historians of our faculty to lead a process for soliciting the views and perspectives of all within our community—students, alumni, faculty, and staff —on whether the Royall crest should be discarded from our shield. Through that process, we will gain a better sense of what course of action should be recommended and pursued, and we will discuss and understand important aspects of our history and what defines us today and tomorrow as a community dedicated to justice, diversity, equality, and inclusion. We will also have an opportunity to do what all lawyers must do if they are to be effective, which is to truly listen to the perspectives and experiences related by others.”

Bruce Mann, Carl F. Schipper, Jr. Professor of Law, will chair the committee of faculty, students, and an alumnus. A legal historian, Mann will be joined on the committee by legal historians Tomiko Brown-Nagin, Annette Gordon-Reed and Sam Moyn, as well as Janet Halley, who holds the Royall Professorship of Law at HLS. She has written about the legacy of the Royall family. Alumnus Jim Bowers ’70, senior counsel at Day Pitney and a member of the Senior Advisory Council of the Harvard Law School Association, will also serve on the committee. The HLS student government will appoint two representatives to the committee, as well. Visiting Professor Dan Coquillette, coauthor of “On the Battlefield of Merit”, a history of Harvard Law School, will consult to the committee.

The committee is seeking comment from members of the law school community. It has created an email address to receive remarks, royall@law.harvard.edu, and it will be holding community discussions.

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The plight of Roma

Credit: Kris Snibbe/Harvard Staff PhotographerAdriana Zimova, (standing) Harvard Law graduate, activist for Roma rights speaks as Margareta Matache, Harvard School of Public Health, FXB Center for Health and Human Rights looks on next to her inside Wasserstein Hall at Harvard University. Alicia Bello, Joint Degree Candidate at Harvard Law School & Harvard Kennedy School of Government looks on (glasses, crimson shirt).

Taking a leaf out of the American Civil Rights Movement’s book, Roma rights activists undertook a legal battle in European courts to challenge the pervasive discrimination that has kept them living on the fringes of society.

Roma right activists filed a complaint in 1999 before the European Court of Human Rights saying that Roma students were 27 times likelier than non-Roma children to be placed in substandard schools. Eight years later, the court found that the Czech government indeed placed a disproportionate number of Roma children in special schools for children with learning disabilities, which was deemed an act of segregation that violated fundamental human rights.

Known as Brown v. Board of Education of Europe, the ruling highlighted the plight of the Roma, who are often denied access to basic rights and face a life of poverty, discrimination, and exclusion. The ruling was momentous.

“It shook the system,” said Adriana Zimova ’11, a human rights attorney from Slovakia and a Roma rights activist.

“It came at a time when putting Roma children in special schools for children with mental disabilities was accepted as the norm,” she added. “And all of a sudden, the court came and said, ‘Actually, that’s no longer permissible.’”

Zimova spoke last week at Harvard Law School about the challenges of fighting human rights abuses against the Roma. Zimova was accompanied by Margareta Matache, a Roma rights activist.

Matache, who grew up in Romania in the 1980s and now works as an instructor at

Harvard’s FXB Center for Health & Human Rights, recalled how she escaped a dire future.

“I attended a mixed school with Romanian and Roma children,” said Matache. “My best friend was Romanian, and the teachers wanted us to be together in the same classroom. That’s the only reason why I was placed in a Romanian school.”

There are between 10 to 12 million Roma across Europe, but although they are the continent’s largest minority, they are often invisible and forgotten. The Roma, also called Romani, shun the term Gypsies, which they find derogatory.

Descendants of Indians who settled in Europe about 1,000 years ago, the Roma have suffered discrimination throughout their history. A quarter of their population were persecuted and killed during the Holocaust.

But despite their victory in the court, which helped draw attention to their situation, little has changed. Ninety percent of the Roman live below the poverty line and struggle to have access to good education, housing, and employment. Only 1 percent go to college.

“The ruling led to a greater recognition of the segregation that Roma suffer,” said Zimova. But the legal battle continues for many Roma rights activists, and more efforts to fight prejudice against Roma are necessary, said Zimova and Matache.

The Roma live in segregated neighborhoods, which are surrounded by walls built by non-Romas to keep them separated, said Zimova. Other signs of racism prevail: employment ads with “No Roma Need Apply” signs, and restaurants’ refusal to serve Roma customers.

Incidents of violence against Roma are common. Houses occupied by Roma have been set on fire, and families have been expelled from the communities. Segregation in schools often still continues, said Matache, but the battle for equal access to education for Roma children goes on as well.

“Litigation was not enough because we continue to segregate Romani children in Romania,” she said. “We need a more holistic approach. On one hand, we need to work on the legal case, but we also need to have a strategy that continues after the ruling form the court and keeps working with the communities.”

“The plight of the Roma,” by Liz Mineo, Harvard staff writer, was published in the Harvard Gazette, on Nov. 24, 2015

HLS teams compete in the showdown round of the Ames Moot Court Competition

Supreme Court Associate Justice Elena Kagan helps judge 2015 Ames Moot Court competition finals at HLS in November.

The final round of Harvard Law School’s 2015 Ames Moot Court Competition took place on Nov. 16, in Ames Courtroom, Austin Hall.

The Ames Moot Court Competition is one of the most prestigious competitions for appellate brief writing and advocacy in the country. In the competition’s final round, held in the fall of the 3L year, two teams argue a case before a panel that usually consists of one U.S. Supreme Court justice and two judges from the United States courts of appeal.

This year, the Hon. Elena Kagan ’86, associate justice of the Supreme Court of the United States, the Hon. Debra Ann Livingston ’84, U.S. Court of Appeals Second Circuit, and the Hon. Robert L. Wilkins ’89, U.S. Court of Appeals, District of Columbia Circuit, presided over the competition. This is the first time Kagan has presided over Ames since leaving Harvard Law School to serve on the Supreme Court.

Two teams of 3L students presented arguments in the fictional case of Abrams v. Vita, Inc. This year’s teams were:

The Hon. Robert Smith Vance Memorial Team (Petitioner)

November 16, 2015. Cambridge, MA. Harvard Law School. Ames Final Moot Court Competition.

L-R: ; Charlotte Lawson, oralist; Gabriel Kohan;  Amanda-Claire Grayson, Brian Phelps; Allison Schultz, oralist,and Kevin Crandall.

The Jimmie Lee Jackson Memorial Team (Respondent)

Back row, L-R: Sam Block; Chen-Chen Jiang; Patrick Knoth; Zoe Bedell. Front row: L-R: Meghan Cleary, oralist, and Kavya Naini, oralist.

The judges ruled that ruled the petitioner, the Hon. Robert Smith Vance Memorial Team, won Best Overall.  The Best Brief award went to the respondent, The Jimmie Lee Jackson Memorial Team. Charlotte Lawson, of the petitioner’s team, was awarded Best Oralist.

This was the first year in the history of Ames that all four oralists in the final round were women.

The Women’s Law Association hosted an Ames viewing event during the competition. The Harvard Civil Rights-Civil Liberties Law Review provided a live blog of the competition, which included judges’ questions, oralists’ arguments and bloggers’ predictions. The CRCL archive is available here.

Kagan complimented the oralists’ ability to respond to judges’ questions. She also praised both teams’ briefs: “In the end, it’s the briefs that win arguments, much more so than the [oral] argument,” she said.

The 2015 Ames Moot Court Case Abrams v. Vita, Inc, involved an employee, impaired as a result of an accident, who sought workplace accommodation under the Americans with Disabilities Act. Specifically, he asked to be reassigned from his “Picker” position, gathering items to fulfill online customer orders, to a position as an “Inventory Associate,” which is a clerical job that he could do. One of the issues in the case involved whether the ADA requires that a physically disabled worker be reassigned to a similar position within his organization for which he is qualified, when there is someone else in the organization who is more qualified according to employer specifications.

The second issue in the case involved the worker’s use of medicinal marijuana and whether the ADA protects an individual with a disability who uses marijuana for medical purposes under the supervision of a physician and in accordance with state law when the individual’s employer takes adverse employment action on the basis of such use.

The hypothetical case was written by Tejinder Singh ’08, an instructor in the Harvard Supreme Court Litigation Clinic and a partner at Goldstein and Russell, and Elizabeth Prelogar ’08. Both Singh and Prelogar are former Ames oralists, and Prelogar served as a clerk for Justice Kagan. A brief description is available on the Board of Student Advisers website.

The Final Round Record and Briefs are below:

Abrams v. Vita, Inc. – Record

Vance – Brief for Petitioner

Jackson – Brief for Respondent

Vance – Reply Brief for Petitioner

The students participating in the Final Round started the competition in fall of their 2L year. Two teams progressed to the Final Round through their strong research abilities and excellent written and oral advocacy.  The Ames Moot Court competition is administered by the HLS Board of Student Advisers (BSA).

Past Ames participants include Harvard Law School Professor Cass Sunstein, former Stanford Law School Dean Kathleen Sullivan ’81, former Massachusetts Governor Deval Patrick ’82, and the late Supreme Court Justice Harry Blackmun ’32. Click here for a list of past winners of the Competition.

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Harvard Law School Dean Martha Minow responds to the defacement of African American faculty portraits

This morning, Harvard Law School discovered that portraits of some African American faculty had been defaced with black tape. The Harvard University Police Department is investigating the incident as a hate crime. The HLS community gathered at noon to listen to one another, to share our concerns, experiences and perspectives, and to address ways to move forward. Expressions of hatred are abhorrent, whether they be directed at race, sex, sexual preference, gender identity, religion, or any other targets of bigotry. Here at HLS, we are focused on efforts to improve our community, examining structures that may contribute to negative experiences of any members of our community, and pursuing opportunities where the School can both change and support change. 

Dean Martha Minow
Morgan and Helen Chu Dean and Professor of Law
Harvard Law School

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HLS students participate in Foreign Direct Investment International Arbitration competition

A team of Harvard Law School students traveled to London in early October to participate in the Foreign Direct Investment International Arbitration Moot, hosted by the Dickson Poon School of Law at King’s College London.

The 2015 Harvard FDI Moot Team, which consisted of Matthew Weybrecht ’16, Zain Jinnah ’16, Paige von Mehren ’17, Danielle Young ’17, and the two team co-captains, Amanda Tuninetti ’16 and Anusha Pamula ’16, advanced to the quarterfinals of the oral competition rounds, finishing in fifth place overall.

The 2015 Harvard Law School Foreign Direct Investment International Arbitration Moot team, from L to R: Zain Jinnah ’16, Paige von Mehren ’17, Danielle Young ’17, Anusha Pamula ’16, and Amanda Tuninetti ’16. Not pictured: Matthew Weybrecht ’16.

For the second year in a row, the HLS team won the Oxford University Press Prize for the Best Respondent Memorial, which will be published in the Oxford University Press “Yearbook on International Investment Law and Policy.”

In total, 51 teams took part in the oral argument rounds in London, after qualifying in the competition’s various regional rounds. This is the fourth year that Harvard Law School has participated in the competition.

The team was coached by Jessica Beess und Chrostin ’13, who founded the team in 2012 and practices international arbitration at King & Spalding, and Ana Vohryzek, a former international arbitration associate at King & Spalding.

The FDI International Arbitration Moot Competition spans approximately six months over two phases: written memorials for the claimant company and the respondent state, followed by hearing of oral arguments before panels of judges, who are leading practitioners and academics in the field.

This year’s problem raised complex jurisdictional questions relating to the validity of bilateral investment treaties between EU member states, and issues involving the long-term security of feed-in tariffs designed to encourage renewable energy investments.

“Investor-state dispute settlement has been getting a lot of media attention recently, due to its inclusion in the Trans-Pacific Partnership and the possibility of its inclusion in the Transatlantic Trade and Investment Partnership,” said Amanda Tuninetti ’16. “It’s a growing and exciting area of practice, and we would love to see more international arbitration in the HLS curriculum.”

The competition provides students an opportunity to experience briefing and mooting a hypothetical investor-state arbitration, developing legal strategy and even calculating damages.

“For me, the most fascinating part of oral argument was responding to questions from judges from different jurisdictions,” said Danielle Young ’17. “Some wanted textual arguments from the treaty. Some wanted arguments rooted in EU law. Others wanted arguments about broader policy implications. It was great to start learning how to be a persuasive advocate for a real range of judges.”

Young and von Mehren will lead the team next year. The 2016 competition will be held in Buenos Aires, Argentina, hosted by the University of Buenos Aires.

Yochai Benkler on whistleblowers, the news ecosystem and self-organizing in the commons

Credit: Jessica Scranton

The Berkman Professor of Entrepreneurial Legal Studies and faculty co-director of the Berkman Center for Internet and Society, Yochai Benkler ’94 has written extensively on the “networked public sphere,” including his influential book, “The Wealth of Networks.” He spoke about his proposal for a defense of whistleblowers, his testimony in a trial of a well-known leaker of military documents, and a problem he calls a growing crisis in the country.

You’ve argued that Edward Snowden should be granted immunity. Why should we offer this protection to someone who revealed classified information related to national security?

One of the things that needs to be understood is that whistleblowers provide a critical checking function on the organizational dynamics of the national security system, which systematically and repeatedly makes mistakes. The basic point is not about free speech, not about public exchange, it’s about the fact that we have seen a significant spike in the number of national security prosecutions after 9/11 whose only equivalent was the period of the early ’70s at the height of the Vietnam War. What becomes very clear is that the two periods that really show spikes are periods where the panic response within the national security system led to actions that in hindsight seemed deeply wrong. The warrantless wiretapping program is a very clear example. The national security system, because of its secrecy, because of the extremity of circumstances and the potential consequences of failures, is more susceptible to these self-reinforcing error dynamics. What national security leakers do is to provide a moral compass that is sufficiently different from that of the organization. Under extreme conditions, when the organization goes really wrong, they’re like a pressure valve.

How would a public accountability defense, which you’ve proposed for national security leakers and whistleblowers, work?

It doesn’t mean a get out of jail free card, no matter what. It doesn’t mean that you don’t want to assure that there’s some significant level of risk associated with becoming a whistleblower, because obviously many times there is a legitimate reason for secrecy. The purpose of the defense is if in retrospect you look back at the revelations and you say, “You know what, the system really did go off-kilter, we really need to reform fundamentally,” then the whistle-blower can appeal to that defense and say, “I was right. Enough people in the world believe that the system has gone wrong. I shouldn’t be made to suffer the consequences when the real problem was the system not me.” In Snowden’s case, there are so many public sources of affirmation that the error was in the way the national security establishment interpreted its powers and extended its reach that the man who risked so much to correct that error should receive the benefit of such a defense. It would be a general defense in criminal law with sufficiently constrained requirements for assuring the reasonableness of the disclosure and the unreasonableness of the practice disclosed.

What did you learn from your experience testifying at Chelsea Manning’s trial as an expert witness on the issue of WikiLeaks?

I think Chelsea Manning got a very raw deal. I have no question based on the materials I saw in the trial that Manning’s motivation was very much to expose some unacceptable practices, most importantly cooperation with Iraqi authorities that killed and tortured opponents. But I also think it was clear how overwhelmingly difficult it is for a defendant in one of the cases to operate, because the prosecution through selective declassification and classification held all the cards about what evidence is or isn’t available for the defense, showing just enough to incriminate but not enough alternative materials. It was extremely difficult and time-consuming for the defense. The core problem in the case was the breathtaking overreach of the prosecution, to charge Manning with aiding the enemy. The theory of aiding the enemy would have essentially said that anyone who gives a news outlet secret information is aiding the enemy because the enemy can read the news outlet. That was the fundamental theory of the case. It basically means that any disclosure of national security materials to the press with the intent of being published is a death penalty offense. That was an overreach intended to terrorize whistleblowers.

How did growing up in Israel shape your personal perspective on these issues of national security?

Certainly as someone who was a soldier, I think those of us who have actually experienced the inside of one of these national security organizations understand that they’re all too human. This is not about evil people who want to take over the republic. This is about well-intentioned people living in a system that by its design, by its practice, by the complexity of the problems it has to deal with, makes mistakes all the time. And if you want to talk about the personal sense of it, it’s the sense of having been a soldier and seeing smart people and stupid people, brave people and cowardly people, successful people and unsuccessful people, just like there are in any other organization. It’s not fundamentally different from a university or a company or any other government agency. It’s a human system like any other, deeply imperfect and with the best of intentions needing consistent correction.

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Credit: Jessica Scranton

Technology has not determined and will not determine the level of inequality in society. What has always mattered, what will continue to matter, are the political choices we make about the institutions we live with, about the organizational strategies we use. We need to push harder on the political choices, the institutional choices, the social and cultural and personal choices people make to make sure that we don’t spend the next 40 years with an equally continuous line of the top 0.1 percent capturing more and more of the total share of income, and the majority of people stagnating and hoping for a better day.

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You’re involved with the Media Cloud Project, which examines the emerging news ecosystem. What do you hope to accomplish with the project?

What we’ve trying to do with Media Cloud is to build instruments that allow us to study empirically what’s going on on the Net. There is a real possibility of decentralized network mobilization, even in the teeth of highly concentrated well-funded interests on the other side. Certainly one of the biggest threats to my mind to American democracy is the outsized and continuously strengthening power of money to shape our country. So to find that there is a mechanism for people to come together and overcome major moneyed interests on areas of significant strategic importance like intellectual property regulation or net neutrality regulation is very optimistic. At the same time I think our findings suggest that this success is far from assured. There’s no perfect technology of democracy where we suddenly see people of good intentions coming together and winning against some evil other side. It does not replace on-the-ground social organization. It’s neither utopia not dystopia. But what I’m very happy about with what our research is doing is that we are building a platform that is already available to researchers to give an evidenced-based handle on how these debates unfold, who is influencing them, with what sort of tactics, in a way that allows for quantitative and qualitative research.

Your book “The Wealth of Networks” talked about how the Internet changed society. What developments are most notable since the publication of the book in 2006?

The core claim I made there was that the openness of the Internet enabled a series of commons-based social and economic practices that diffused power in society and allowed a much larger number and more diverse set of people to participate in the production of culture, in the production of economic and information goods, and in the participation in democracy. The question remained open whether we would see the Internet open or whether it would close up. There are three primary challenges that are new since 2006. One has to do with the adoption of the hand-held—essentially the smart phone and the tablet. We’ve seen a series of technical and market-adoption patterns that make the core information infrastructure more controllable by someone. These are making network communications more centralized, more readily available for control and less decentralized. It’s a new set of battles that’s different from the set of battles we had to fight 10, 15 years ago, which were more about copyright and telcos and 20^th century companies trying to tame the Internet, and this is really more about 21^st century companies trying to take control. The second major change is the catch-up of the state. The state used to be slow, bumbling and coming from behind. I’d say the state, the U.S. particularly in national security, Russia, China, to some extent some of the European countries, is now playing at a level of insight, control and understanding of the way power is at stake in a way that wasn’t there 15 years ago. So there’s a much bigger sense of state control over what was before a much more common-based decentralized platform. Essentially the state took 15 years to get wise to this Internet thing but is now a major player with its own interests, and these are not always aligned with open democracy. And the last of the three is the integration of the data algorithms and the surveillance by companies to create evermore refined platforms that are able to observe people’s behavior and then roll these observations back into the platform. Essentially we see platforms capable of shaping people’s knowledge and choices more than was ever feasible before. With the risk of exactly the inverse of what I was hoping for 10 years ago when I talked about the increasing possibility of autonomy. In fact, now we’re seeing the increasing undermining of autonomy.

You spoke about the “commons,” this idea of communities of people sharing resources, including digital resources. What’s the status of the commons today?

The idea of people self-organizing in the commons is enormously powerful and in many senses has shaped practices for millions of people, trying to build for themselves communities that are free of the pressures of the market, free of the pressures of the state, self-governing, creating the potential for a mode of production in which people engage and cooperate and build things like newspapers, software, video, you name it. The challenge that commons-based peer production faces today is how to move from a stable, growing but still peripheral part of much of the economy into a genuinely alternative model of sustained living for ideally many millions of people. The idea of the commons has offered both a framework for thinking about how a well-governed shared resource like the Earth we live on can be managed in a sustainable way without being caught in the continuous growth model that necessarily puts pressure on the global system as a whole, and on the other hand it has provided a framework for thinking about how people can self-organize under conditions of fair sharing, of burdens and benefits, in a way that is not utopia but actually describes the lives of people actually producing stuff like software or an encyclopedia. But there are limits. We haven’t seen in a substantial way a translation to people also being able to make a living. I think that’s one of the most interesting challenges to look at today.

Understanding the relationship between the technological transformation of the last 40 years and the massive uptick in economic inequality. I think it’s a real crisis, the inequality problem. A lot of my emphasis now is trying to parse the arguments about how technology either has been a cause of inequality or that robots in the future will cause the elimination of work for most people except the most highly educated. Technology has not determined and will not determine the level of inequality in society. What has always mattered, what will continue to matter, are the political choices we make about the institutions we live with, about the organizational strategies we use. We need to push harder on the political choices, the institutional choices, the social and cultural and personal choices people make to make sure that we don’t spend the next 40 years with an equally continuous line of the top 0.1 percent capturing more and more of the total share of income, and the majority of people stagnating and hoping for a better day.