Happy Liberation Day Lebanon

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Khiam Prison

A photographer captures the moment a Khiam prisoner is told of his freedom (BBC)

Seventeen years ago today, the Israeli army withdrew in defeat from South Lebanon after an 18 year occupation. Thousands of Lebanese from across the ideological and religious spectrum resisted the Israelis and gave their lives to liberate the land, and they will never be forgotten.

I still remember my first trip to South Lebanon a few weeks after liberation with friends from Marj’ayoun (a town in South Lebanon). I had never been to the South despite having spent nearly every summer of my life in Lebanon because the South had been under Israeli Occupation since 1982. I’ll never forget the victory music blaring along the path adjacent to the border fence and throwing fuck-you-rocks with friends onto the Israeli side. I’ll never forget seeing Occupied Palestine for the first time across Fatima’s gate and being shocked at the lushness and greenery of Israeli settlements a few hundred yards from where we were given the desolate landscape on the Lebanese side after years of occupation.

The most haunting memory that remains with me, however, was my visit to the notorious Khiam prison, where thousands of Lebanese resistance fighters were tortured – many to death – by the South Lebanon (proxy) Army under Israeli command. A former detainee who had been tortured and imprisoned for seven years stood up on a small rock and recounted the horrors of his ordeal for 30 minutes without pause, and without expression, and without emotion. It was as if they had beaten his soul out of his body, as he seemed incapable of feeling anything anymore. But the people who had gathered around to hear his stories were full of feelings, and emotions, and tears; of sorrow, of grief, of pain, and perhaps of joy for being able to finally put behind that horrible chapter in our history.

Happy Liberation Day Lebanon.

Trump’s Immigrant / Refugee / Muslim Ban

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President Donald Trump

On the 27th of January 2017, Donald Trump signed an executive order (EO) titled “Protecting the Nation from Foreign Terrorist Entry into the United States”. The EO contains multiple controversial sections, including a 90-day ban on foreign nationals from seven-Muslim majority countries (with some exceptions), a 120-day ban on all refugees, an indefinite ban on all Syrian refugees, and a prioritization of refugee applicants whose religion is a minority religion in their country of nationality.

As of January 30th, according to numbers compiled by Customs and Border Protection (CBP) and as reported by the Daily Beast, the passing of this EO had caused 200-250 travelers at US airports to be denied entry after having flown to the United States on valid visas or green cards; as of February 2nd, according to CBP, 1222 travelers were denied from boarding flights for the United States (87 visa-holders were granted waivers); and as of February 3rd, according to a lawyer in the Justice Department, more than 100,000 visas had been revoked, although the State Department disputed that number and said that “only” 60,000 visas had been revoked.

The EO has engendered a swell of opposition to what has variously been described as an immigration ban, a refugee ban and a Muslim ban, including tens of thousands of people in multiple US cities who protested the ban, as well as the filing of dozens of lawsuits challenging the executive order on various grounds. As of February 3rd, a Seattle-based federal judge imposed a temporary restraining order on the EO, effectively suspending it, and on February 9th, the 9th Circuit Court of Appeals denied an emergency motion for a stay of the TRO filed by the Trump administration (essentially upholding the TRO). Given the level of opposition to the EO and the current legal battles being fought in courts across the US, the purpose of this article is to examine the order in detail, analyze some of its more controversial aspects and provide an up-to-date view of the latest legal developments.

1) Purpose of Executive Order

The ostensible purpose of this executive order is stated in Section 1 [italics mine]:

The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States.  Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans.  And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States.  The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.  The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.  In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation”.

In reading this section, one is left with the impression that the existing visa-issuance process is in shambles and that the United States has been invaded by foreign-born terrorists. However, when we look at the statistics for terrorism-related deaths in the US by foreign-born terrorists over the past 40 years, a diametrically opposed picture emerges. According to the CATO institute (a libertarian-leaning think tank), between 1975 and 2015, 3024 people have been killed by foreign-born terrorists.

chance-of-dying-by-a-foreign-based-terrorist-cato

These statistics include 9/11, which is responsible for the vast majority of those deaths (2983 people were killed, excluding the 19 hijackers), and which indeed was committed by foreign-born terrorists on temporary visas (18 of the 19 9/11 hijackers entered on tourists visas; 1 was on a student visa). If we split this period between pre-9/11 and post-9/11 eras, then according to CATO:

“The period from 1975 to 2001 had only 17 murders committed by 16 foreign-born terrorists of a total of 64 who either tried or were successful in their attacks. During the same time period, 305 people were killed in terrorist attacks committed by native-born Americans and those with unknown nationalities […] From September 12, 2001, until December 31, 2015, 24 people were murdered on U.S. soil by a total of 5 foreign-born terrorists, while 65 other foreign-born terrorists attempted or committed attacks that did not result in fatalities. During the same period, 80 people were murdered in terrorist attacks committed by native-born Americans and those with unknown nationalities”.

It becomes clear then, that with the exception of 9/11, the number of deaths resulting from foreign-born terrorists is both low overall, and lower than terrorist attacks committed by American-born terrorists (both in the pre and post-9/11 eras). In fact, if we exclude 9/11 as a unique outlier, the annual chance of being killed by a foreign-born terrorist in the US is 1 in 250 million per year over the period 1975-2015 (those are about the odds of winning the Powerball lottery). In the period before 9/11, the odds are 1 in about 350 million per year, while the odds are 1 in 175 million in the period post-9/11 per year. Either way, these odds are extremely low. Even if we include 9/11 in the statistics, the odds of being killed by a foreign-born terrorist are 1 in 3.6 million per year (for those of you interested in the math, take the total number of deaths over the particular period of interest, for example 3024 deaths from 1975-2015, and divide that by the number of years in that period (40), and then again by the average number of people in the US over that period (around ~275 million)).

To put things in perspective, let’s take a look at lightning-strike data in the US:

According to the NWS [National Weather Service] Storm Data, over the last 30 years (1986-2015) the U.S. has averaged 48 reported lightning fatalities per year. Only about 10% of people who are struck by lightning are killed, leaving 90% with various degrees of disability.”

This implies that about 480 people per year in the US were struck by lightning (10% of whom died) over the period 1986-2015 (this is likely an underestimate given that these are based on reported numbers). Assuming similar numbers between 1975 and 1985, about 19,000 people from 1975 to 2015 would have been struck by lightning. Comparing these numbers to deaths by foreign-born terrorists, Americans are about 6 times more likely (when including 9/11) and 450 times more likely (when excluding 9/11) to be struck by lightning than to die at the hands of a foreign-born terrorist.

To continue putting things in perspective, according to CATO, 768,000 people (including the 3024 killed by foreign-born terrorists) were murdered in the US between 1975 and 2015.

us-murder-rate-cato

Comparing these numbers to deaths by foreign-born terrorists, Americans are more than 250 times more likely (when including 9/11) and about 15,000 times more likely (when excluding 9/11) to be murdered in the US than to die at the hands of a foreign-born terrorist.

Finally, for people worried about refugees (the topic of Section 5 of the executive order), according to CATO:

“Of the 3,252,493 refugees admitted from 1975 to the end of 2015, 20 were terrorists, which amounted to 0.00062 percent of the total. In other words, one terrorist entered as a refugee for every 162,625 refugees who were not terrorists. Refugees were not very successful at killing Americans in terrorist attacks. Of the 20, only three were successful in their attacks, killing a total of three people and imposing a total human cost of $45 million, or $13.84 per refugee visa issued. The three refugee terrorists were Cubans who committed their attacks in the 1970s and were admitted before the Refugee Act of 1980”.

Crunching the numbers, the odds of someone in the US being killed in a terrorist attack by a refugee are 1 in 3.6 billion per year over the period 1975 to 2015. Since the Refugee Act of 1980 was passed, not a single death in the US was the result of a terrorist attack by a refugee. In other words, the odds of someone in the US dying from a terrorist attack committed by a refugee since 1980 is literally 0.

2) The Travel Ban on Seven-Muslim Majority Countries

Section 3 of the executive order, titled “Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern”, states [italics mine]:

“(a)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

 (b)  The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order.  The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

(c)  To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

(d)  Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

(e)  After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

(f)  At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.

(g)  Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

(h)  The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order”.

I’ve highlighted sub-section 3(c) in italics since I intend to focus on this section. The purpose of this section is to impose a temporary 90-day ban into the US on all foreign nationals from seven Muslim-majority countries: Iran, Iraq, Syria, Sudan, Somalia, Yemen and Libya. Although these countries are not explicitly named in this section, they are implied by reference to the appropriate sections of the Immigration and Nationality Act (INA) in the executive order. To be clear, Section 217 (a)(12) of the Immigration and Nationality Act (INA), also referred to by its US code 8 U.S.C. 1187(a)(12), is a new section in the INA that was recently added after the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015” became law as part of the year-end spending bill President Obama signed on December 18, 2015. The purpose of this Act was to restrict the use of the visa-waiver program for certain nationals who traveled to Syria, Iran, Iraq and Sudan, although the list was expanded in February of 2016 to also include Libya, Yemen and Somalia. The visa waiver program “allows citizens of 38 (mostly European) countries to travel to the United States without first obtaining a visa“. The purpose of this Act, then, was to change the process by which citizens from these 38 countries, having traveled to any of the listed seven countries, obtained visas into the country (these citizens had to go through an interview process to now obtain visas into the US if they had traveled to the listed seven countries, whereas they didn’t need visas before the passing of the Act). As such, although it is true that the Obama administration had identified these seven countries as “countries of concern”, the Act of 2015 did not ban foreign nationals from these countries from entering into the US; only Trump’s executive order does that.

At any rate, before delving into the details of section 3(c) of the EO, it is important to first define the terms in this section. The term immigrant, according to its legal definition, refers to people who intend to permanently immigrate to the US; i.e. those who have green cards or lawful permanent residence. In contrast, non-immigrants are those who do not intend to stay in the US on a permanent basis, and include people such as students (on F1-visas for example), guest workers (on OPT or H1-B visas), tourists etc.

According to David Bier of the CATO institute, Trump’s ban targeting immigrants on the basis of their country of origin is illegal. Indeed, according to Bier, Section 202(a)(1)(A) of the INA states that except in cases specified by Congress in section 101(a)(27):

“[…] no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”

This section of the INA does not cover the category of non-immigrants, but it does directly relate to immigrants (i.e. Green Card holders or permanent lawful residents). Despite that, acting Department of Homeland Security (DHS) spokeswoman Gillian Christensen said, on January 28 2017, that the executive order “will bar green card holders”, before a “senior administration official clarified […] that green card holders from the seven countries affected in the order who are currently outside the U.S. will need a case-by-case waiver to return to the U.S. […] Green card holders in the U.S. will have to meet with a consular officer before departing the country, the official said”.

This had the potential of impacting up to 500,000 lawful US residents from the seven countries listed above, before Donald F. McGahn II – Counsel to President Trump – “re-interpreted” this part of the executive order and issued a memo on February 1st 2017 exempting lawful permanent residents from the ban, which pundits called “highly unusual” and interpreted as a “face-saving way for the White House to redraft the executive order without incurring the embarrassment of actually having Trump sign a new executive order”. It is important to note, however, that despite this “re-interpretation”, the 9th Circuit Court of Appeals, within the context of the Trump administration’s challenge to the temporary restraining order issued on February 3rd (see section 4 below for details), has stated in their legal opinion (on p. 20-21) that the White House counsel is not empowered to issue an amendment superseding the EO; as such, it is not clear that this “re-interpretation” is legally binding:

“At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely. Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings”.

With regards to non-immigrants, the INA doesn’t provide the same protections as it does to immigrants. However, this does not mean that non-immigrants have no rights under the US constitution. Indeed, the 9th Circuit Court of Appeals has emphasized that:

“The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S.21, 33-34 (1982)”.

3) The Refugee Ban

Section 5 of the executive order, titled “Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017” states [italics mine]:

“(a)  The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days.  During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.  Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures.  Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.

(b)  Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.  Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

(c)  Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.

(d)  Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.

(e)  Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.

(f)  The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.

(g)  It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees.  To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement”.

Interpretation and “justification” of section 5(b)

I want to focus on section 5(b), which essentially states that refugee applicants claiming religious persecution will be prioritized “provided that the religion of the individual is a minority religion in the individual’s country of nationality”. 

It is not clear how the ambiguous language of 5(b) is to be interpreted, specifically the words “minority religion” and “country of nationality”. Would section 5(b) apply, for example, to certain groups of Muslims who are being persecuted for their minority religious beliefs, such as Shia Muslims facing religious persecution in Sunni majority countries like Saudi Arabia and Sunni Muslims facing discrimination in Shia majority countries like Iran, or would the Trump administration argue that the Shia  and Sunni categories are not religions but sects within Islam (and therefore, that intra-religious sectarian persecution does not qualify under 5(b)). Would section 5(b) apply to the Muslim Rohingya facing persecution in Buddhist-majority Myanmar, or would the Trump administration echo the claims made by the Myanmar government that the Rohingya’s country of origin is not Myanmar and that they are illicit foreigners from Muslim-majority Bangladesh (the Rohingya “are not regarded as one of the country’s [Myanmar] 135 official ethnic groups and are denied citizenship under Myanmar’s 1982 Citizenship Law, which effectively renders them stateless“)?

Regardless of how the language in 5(b) is to be generally interpreted, it is clear that at least in the particular case of Syrian refugees, the language of 5(b) was intended to prioritize Christian over Muslim refugees. Indeed, in an interview with Christian Broadcast News, Trump essentially stated that Syrian Christian (as opposed to Muslim) refugees would be prioritized in the refugee settlement process, in response to the interviewer’s question within the context of his executive order. Some conservative pundits such as David French from the National Review have attempted to justify this stance on Syrian refugees (if we read between the lines) by remarking that there seems to be a disparity in the number of Syrian Christian vs. Muslim Syrian refugees admitted into the US (Trump himself alludes to that in his interview). According to French:

“The Obama administration has resettled 13,210 Syrian refugees into the United States since the beginning of 2016 — an increase of 675 percent over the same 10-month period in 2015. Of those, 13,100 (99.1 percent) are Muslims — 12,966 Sunnis, 24 Shi’a, and 110 other Muslims — and 77 (0.5 percent) are Christians. Another 24 (0.18 percent) are Yazidis”.

The numbers quoted above seem to be correct, according to the Refugee Processing Center. The question is why have so few Syrian Christian refugees been admitted into the US? Is it because of discrimination, or for some other reason? French is correct in pointing out that around 10% of Syria’s pre-war population is Christian (at least according to the CIA World Factbook, which would put the number of Syrian Christians at around 2.1 million;  according to the Pew Research Center, around 5.2% of Syria’s population is Christian, which translates to about 1.1 million), but that is not the right metric to use to adduce any alleged disparity in the number of Christian vs. Muslim Syrian refugees (and by extension, potential discrimination in the refugee process), as this does not reflect the number of registered Syrian Christian refugees.

Neither is it helpful to make the case for discrimination in the refugee process on the basis of the number of Christians who have fled Syria. The conservative news network CNSNews has claimed that “estimates of the number of Christians who have fled their country since 2011 vary, but the international Christian charity Barnabas Fund estimated some 600,000 earlier this year, the European Parliament said at least 700,000 had done so, and a Chaldean Catholic bishop from Aleppo last March put the figure at at least one million“. As tragic as these numbers are, they only reflect the number of Syrian Christians who have fled Syria, and not the number of registered Christian refugees (which is what is needed to make the case for religious disparity in numbers in the refugee process).

Indeed, the only correct metric to use to adduce disparity in Christian vs. Muslim Syrian refugees in the refugee process is to check the religious denomination of the registered Syrian refugees. According to Robert Farley of FactCheck.org:

“Chris Boian, a spokesman for the United Nations High Commissioner for Refugees, said “UNHCR staff simply does not discriminate.” Boian said decisions about how to prioritize refugees is based on the “basic human needs” of refugees, regardless of religion, nationality or race.

The reality, he said, is that far fewer Christian Syrians have applied for resettlement.

According to data supplied by the UNHCR, just 1.5 percent of the 1 million Syrian refugees in Lebanon are Christians; 0.2 percent of the 655,000 Syrian refugees in Jordan are Christians; 0.3 percent of the 228,000 Syrians refugees in Iraq are Christians; and 0.1 percent of the 115,000 Syrian refugees in Egypt are Christians. (In Turkey, where there are 2.7 million Syrian refugees, they do not record the religion of refugees.)

“We don’t fully know why there are fewer Christians requesting refugee status with UNHCR,” Boian said”.

So, regardless of how many Syrian Christians may have fled Syria, it seems that disproportionately few have registered as refugees with UNHCR (the United Nations High Commissioner for Refugees is the UN refugee agency). Given that the US refugee settlement program relies on UNHCR for refugee applications (indeed, UNHCR “identifies those refugees who are most in need of resettlement to a third country — typically more developed countries, further from conflict regions, such as the United States”), it seems that the reason that so few Syrian Christians have been admitted as refugees into the US is because so few have registered with UNHCR (and the admitted numbers into the US seem consistent with their registered numbers with UNHCR). The real question then (as Boian has pointed out), is why so few Syrian Christians have requested refugee status with UNHCR. This is an important question to investigate, and Farley’s article offers a few hypotheses, although there does not seem to be an obvious answer to this question as of now. Regardless, the right course of action is to investigate this issue in more detail, and not to address it through the unconstitutional language of section 5(b) – see below.

The legality of section 5(b)

Many pundits, such as Mark Joseph Stern of Slate and David Cole of Just Security, have remarked that this section is meant to prioritize Christian (and other non-Muslim) applicants claiming refugee status over Muslim applicants, and as such, is unconstitutional since it violates the Establishment Clause (in the First amendment of the US Constitution). Both Stern and Cole remark that:

“According to the Supreme Court, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 US. 228, 244 (1982)”.

Furthermore, Cole argues that “one of the critical questions with respect to the validity of executive action challenged under the Establishment Clause is its intent and effect; if intended to disfavor a particular religion, it violates the Establishment Clause”. In an earlier article, he provides several lines of evidence that demonstrate Trump’s anti-Muslim bias:

  • On December 7, 2015, the Trump campaign issued a press release stating that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
  • In July 2016, he effectively admitted that his revamping of the proposal was designed to target Muslims without expressly saying so. In an interview on “Meet the Press: with NBC’s Chuck Todd,” Trump said he would target immigrants from certain countries, but resisted the suggestion that this was a retreat from his proposal to target Muslims. “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion… People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.”
  • In November 2015, Trump told NBC News he “would certainly implement” a database to track Muslims in the United States … “I would certainly implement that. Absolutely.” Would Muslims be legally required to register? “They have to be — they have to be,” Trump replied.
  • In March 2016, Trump said, “Frankly, look, we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”

When this evidence is added to Trump’s previously discussed statement in the Christian Broadcast News interview, it seems quite clear that there is intent to favor one religion over another.

Finally, Cole makes the important point that even if Trump had not made his unconstitutional claim on TV (and therefore not revealed blatant intent), the distinction between majority and minority religion independently violates the principle of denominational neutrality:

“Moreover, even absent that evidence of Trump’s invidious intent, the order on its face favors refugees from “minority religions” over those from “majority religions” in any given country. That distinction independently violates the principle of denominational neutrality, even if in some countries it means we will be privileging Christians and in other countries Muslims.  The law struck down in Larson v. Valente did not name any particular denominations, but simply imposed differential registration and reporting requirements on religions that received more than half of their total contributions from members, and those that did not.  Even though the law did not single out a specific religion by name, it failed to treat all denominations the same, and therefore violated the Establishment Clause.  Thus, even if Donald Trump hadn’t admitted his unconstitutional purpose on TV, the executive order would be unconstitutional”.

4) Legal challenges to executive order

Since the passing of the executive order, various lawsuits have been filed challenging the legality of the order on various grounds. In this section, we examine the major legal challenges that have ensued since the passing of the order.

ACLU lawsuit results in temporary stay against EO

The first major legal challenge to the executive order was “brought by the American Civil Liberties Union on behalf of two men [Hameed Khalid Darweesh and Haider Sameer Abdulkhalek Alshawi] detained at John F. Kennedy International Airport in New York City”. Judge Ann M. Donnelly, a federal judge in Brooklyn, issued an emergency stay on January 28th 2017, temporarily allowing people who had landed in the United States with a valid visa to remain (although the suit was filed on behalf of the two men, the temporary stay applied nationally). Her justification for issuing the temporary stay was based on her assessment that the executive order violated the claimants’ rights to Due Process and Equal Protection under the US constitution (see below).

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Mark Joseph Stern provides some useful background for the basis of this ruling:

“The Fifth Amendment to the Constitution provides basic procedural guarantees to individuals detained in the U.S., prohibiting the government from depriving individuals of liberty without “due process of law.” Alshawi arrived in the country lawfully carrying the requisite documentation. Pursuant to the Immigration and Nationality Act, he now has a right to apply for asylum and have his claims processed by federal authorities. But the government did not do that. Instead, it instantly placed him in detention, without a hearing or any kind of judicial oversight, and barred him from speaking with his attorneys.

That is an unconstitutional deprivation of Alshawi’s liberty without due process of law. The federal government cannot indefinitely detain a lawful visitor without a hearing or any semblance of reasonable suspicion because the president signed an executive order. Nor, under the equal protection component of the amendment’s Due Process Clause, may the government discriminate against Alshawi because of his national origin or religion”.

Washington and Minnesota lawsuit results in temporary restraining order against EO

The next major challenge against the executive order was brought forward by Washington State and Minnesota. After hearing both sides, Seattle-based federal Judge James Robart, a George Bush nominee who was confirmed by the Senate in a 99-0 vote, issued a temporary restraining order (TRO), “targeting and effectively neutralizing all of the order’s main tenets, including its prohibition of entry from seven Muslim-majority nations. The judge also specifically blocked any preference for religious minorities in those countries, which have been widely interpreted as singling out Christian refugees for preferential treatment“.

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According to Judge Robart:

“The proper legal standard for preliminary injunctive relief requires a party to demonstrate (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest”.

Robart’s conclusion was that the States are:

“[…] likely to succeed on the merits of the claims that would entitle them to relief; the States are likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favor the States; and a TRO is in the public interest”.

Although Robart does not discuss the details of item (1), he does explicitly discuss item (2) and claims that the “States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order”. The rationale behind this claim is summarized below:

1) Washington state and Minnesota residents were negatively impacted in areas of employment, education, business, family relations and freedom to travel.

2) Their harm extended to the States by virtue of the parens patriae legal doctrine (which is a “doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf”).

3) Direct harm to the States by virtue of the EO’s impact on the mission and operations of the States’ public universities as well as to the States’ tax base and public funds.

4) The TRO was extended beyond just Washington and Minnesota to the whole of the US by virtue of the view that immigration law should be applied uniformly (i.e. should be applied the same way everywhere in the US).

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Motion for an Emergency Stay of the TRO – denied by 9th Cicuit Court of Appeals

Unsurprisingly, the Trump administration filed a notice of appeal against Robart’s ruling on February 4th, and requested an emergency motion for a stay of Robart’s TRO in the 9th Circuit Court of Appeals; the Court subsequently denied this motion by a vote of 3-0 on February 9th. The main argument presented by the Court to deny the stay was based on their assessment that the Trump administration was unlikely to succeed in their appeal on the merits of their case, specifically around the States’ Due Process claim. According to the Court:

“In the district court, the States argued that the Executive Order violates the procedural due process rights of various aliens in at least three independent ways. First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States”.

The Court essentially agreed that these due process claims had merit, and therefore that the Trump administration’s appeal was unlikely to be successful. The Court also expressed serious concern around the claims of religious discrimination in section 5(b), although “they reserved consideration of these claims until the merits of this appeal have been fully briefed”. A summary of the court’s rationale to deny the stay is presented below, but the complete ruling is worth reading in full.

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The 4th Geneva Convention and the Oslo Accords

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For those who are interested in the connection between the flaws of the Oslo Accords and the failure to explicitly incorporate the 4th Geneva Convention within the Accords, I strongly recommend  the excellent article “Flouting Convention: The Oslo Agreements” [The New Intifada (2001), p. 181-206] by Allegra Pacheco. On p. 186, Pacheco claims that “one of the greatest flaws of the Oslo agreements was that they did not commit Israel to (explicitly) abide by the (4th Geneva) Convention and cease its human rights violations”. On p. 188, she gives the background for that omission (worth reading in full):

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It should be noted that Palestinian Human Rights groups valiantly tried to independently force the applicability of the Convention by appealing to the International Community (see p. 199 -201). These attempts yielded a “call for the convening of a meeting of the parties to consider enforcement measures of the Convention in the Occupied Territories”, as requested by UNGA resolution ES-10/6 (passed unanimously on February 9 1999), which resulted in a truncated 10 minute conference of the High Contracting Parties (to the 4th Geneva Convention) on July 15 1999 that still managed to reaffirm “the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory”. This was then followed by another conference of the High Contracting Parties on December 5 2001 and that issued a more detailed statement, again re-affirming the applicability of the 4th Geneva Convention.

Despite these attempts, Israel continued (and continues) to refuse the applicability of the 4th Geneva Convention to the OPT, and by extension, its applicability to the settlements in the OPT. It is not surprising, then, to see the avoidance of any mention of the 4th Geneva Convention in the successor to the Oslo Accords, the so-called Quartet Roadmap, which like Oslo, purposefully fails to incorporate standards of International Humanitarian Law (including the 4th Geneva Convention) within its text.

Follow-up to UNSC resolution 2334

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A part of work in Jewish settlement of Harmoun Hanatsave near the Arab neighbourhood of Ras al-Amud

Jewish settlement of Harmoun Hanatsave near the Arab neighbourhood of Ras al-Amud in Jerusalem on Oct. 30, 2012. (Photo: Mahfouz Abu Turk/APA Images)

The purpose of this post is to address comments that have arisen in response to the article I published on Mondoweiss titled UN resolution on settlements is a step back for Palestinians. The main points of the article were as follows:

  • UNSC resolution 2334 uses weaker language on settlements compared to prior “settlement-centric” resolutions such as UNSC resolutions 446, 452, 465 and 478 that were passed in 1979 and 1980;
  • Settler growth since 1980 has increased significantly despite the passing of aforementioned stronger resolutions because of the lack of a real enforcement mechanism;
  • UN resolution 2334, similarly, lacks a real enforcement mechanism.

Based on the above points, the conclusion of the article was that:

  • The actual impact of UNSC resolution 2334 is expected to be no better than prior (and stronger) resolutions; i.e. no impact and continued settler growth.

To be clear, I stand by all 3 points as well as the conclusion of the article. However, several interesting points were made in the Mondoweiss comments section that I felt should be addressed explicitly. As such, I will paraphrase the main points in the comments, and address them individually.

1) It is true that UNSC 2334 uses weaker language than prior resolutions such as UNSC 465 (1980). However, this weaker language has already appeared in prior resolutions, such as UNSC 1515, which was passed in 2003. As such, UNSC 2334 is not “a step back” in and of itself; that step back had already occurred over a decade ago

This point was raised by Mondoweiss commentator ‘Siberiak’. Let me start by saying that this is a fair point. As such, it puts into question the title of the article, although it doesn’t undermine the main points or the conclusion of the article listed above. Furthermore, there are two caveats worth considering and that I will expound on in detail later in this post.

For context, UNSC resolution 1515 was a resolution that passed in 2003 and that endorsed the so-called Quartet Roadmap (the Quartet refers to the US, the EU, the Russian Federation and the UN). In the first operative clause of this resolution, it states that the Security Council:

  1. “Endorses the Quartet Performance-based Roadmap to a Permanent Two State Solution to the Israeli-Palestinian Conflict (S/2003/529)”.

S/2003/529 refers to the letter, dated 7 May 2003, from the Secretary General of the UN (Kofi Annan, at the time) to the President of the Security Council and that transmitted the text of the Quartet Roadmap.

The Roadmap was essentially a 3-phase approach to “resolving” the Arab-Israeli “conflict”. As such, it is not a “settlement-centric” resolution, but a much broader document. Still, it does contain language around settlements. If we focus on that language, we see that Phase 1 of the Roadmap calls for the following:

  • “GOI immediately dismantles settlement outposts erected since March 2001.
  • Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements)”.

In Phase 2 of the Roadmap, we have the following:

  • “Creation of an independent Palestinian state with provisional borders through a process of Israeli-Palestinian engagement. Launched by the international conference. As part of this process, implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with establishment of a Palestinian state with provisional borders”.

Finally, in phase 3 of the Roadmap, we have the following:

  • “SECOND INTERNATIONAL CONFERENCE: Convened by Quartet, in consultation with the parties, at beginning of 2004 to endorse agreement reached on an independent Palestinian state with provisional borders and formally to launch a process with the active, sustained, and operational support of the Quartet, leading to a final, permanent status resolution in 2005, including on borders, Jerusalem, refugees, settlements; and, to support progress toward a comprehensive Middle East settlement between Israel and Lebanon and Israel and Syria, to be achieved as soon as possible”.

There are two key points on settlements in the Roadmap that are worth summarizing:

  1. The Roadmap calls for the freezing of all settlement activity and the dismantlement of all settlement outposts erected since March 2001 (note that “settlement outposts” tend to be smaller settlements, usually unauthorized but typically encouraged by the GOI). However, it does not explicitly mention anywhere that all settlements (including non-outpost settlements), regardless of when they were erected, should be dismantled.
  2. The Roadmap calls for a negotiated solution to “final status issues”, including (major) settlements.

These two points are substantively similar to those contained within UNSC resolution 2334. As such, it is fair to say that these points have indeed appeared within a prior UNSC resolution (specifically UNSC resolution 1515, via S/2003/529). It can therefore be said that, in one sense, the “step back” from an explicit call for dismantlement of all settlements (such as that made in UNSC resolution 465) to a settlement freeze and a negotiated solution occurred over a decade ago; so UNSC resolution 2334, in that sense, would be echoing that “step back”, as opposed to imposing a new reality.

The implications of the 4th Geneva Convention

[Note: The following section between stars (****) was added on 1/18/17]

**** Having said all of the above, there’s a different sense in which UNSC resolution 2334 is a “step back”. Unlike UNSC resolution 1515 via S/2003/529, which expressly avoided citing the applicability of the 4th Geneva Convention anywhere in the text, and by implication, affirming the illegality of settlements in violation of international law (essentially repeating Oslo in this regard; see here for background), UNSC resolution 2334 does explicitly cite the 4th Geneva Convention and declares the illegality of settlements, but fails to assert the implied consequences of such illegality; i.e. insisting on dismantling all settlements, as stated in UNSC resolution 465 (for example). Indeed, in the 3rd paragraph of the Preamble of UNSC resolution 2334, we have the Security Council:

  • “Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949”.

This is then followed up with operative clause 1, in which the Security Council:

  1. “Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace”.

However, and as discussed in the Mondoweiss article, instead of insisting on the dismantlement of settlements as the implied consequence of such illegality, UNSC resolution 2334, in operative clause 3, merely:

3. “Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations”.

In other words, in UNSC resolution 2334, the international community explicitly gives up on the critical and well-accepted notion within International Law that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed“. The “step back”, then, is the failure of UNSC resolution 2334 to forcefully insist on the linking between the illegal act (i.e. settlements) which is recognized, and the notion that reparation must wipe out all the consequences of the illegal act, which isn’t recognized (given the lack of insistence on dismantlement of all settlements). By failing to re-iterate that link, UNSC resolution 2334 introduces the moral hazard of insisting on the applicability of a principle (illegality of settlements) while failing to draw the consequences stemming from that principle (dismantlement); instead, it allows for “facts on the ground” to dictate consequences (negotiations).****

Enhancing “maximum territorial contiguity” in S/2003/529

The second point worth noting is that there doesn’t seem to be any prescriptive language in UNSC 2334 regarding the negotiated borders, whereas there seems to be in S/2003/529. Indeed, within the context of negotiations, the language used in Phase 2 of the Roadmap around the borders of a future Palestinian state contains the following:

  • “As part of this process, implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with establishment of a Palestinian state with provisional borders”. [my italics]

In contrast, that is something you don’t see in UNSC 2334, which only states, in operative clause 3, that the Security Council:

3.”Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations.”

Now admittedly, this prescriptive language around enhancing “maximum territorial contiguity” in the Roadmap is quite opaque, and so should not be overemphasized. Still, it is worth examining it in more detail.

Let’s begin with the words “implementation of prior agreements”. Although it is not completely clear what prior agreements are being referred to by the Roadmap, these are presumably the Oslo I Accord signed in 1993 (the so-called Declaration of Principles), the Oslo II Accord signed in 1995 (the so-called Interim Agreement on the West Bank and the Gaza Strip), as well as subsequent agreements whose objective was to implement Oslo II, such as the Protocol Concerning the Redeployment in Hebron (1997), the Wye River Memorandum (1998) and the Sharm el-Sheikh Memorandum (1999). Leaving aside this author’s  belief that the whole “Peace Process”, starting with Oslo I, was a sham and served to entrench the Occupation, one central element of Oslo II was to carve up the Palestinian Occupied Territories (OPT) into different Areas (so-called areas A, B and C) that Israel was supposed to gradually withdraw or re-deploy from, according to an associated timeline; a newly created Palestinian Council (which would replace the PA) would then be “in charge” of these areas after withdrawal (the phrase “in charge” is being used loosely here, as the Council would have had different levels of control over different areas). However, Oslo II (and subsequent agreements) were never fully implemented, and Israel remained in control of the vast majority of the West Bank, leaving the Council in “control” of non-contiguous islands dotting the West Bank (mostly in Area A and B). It is likely within this context, then, that the words “to enhance maximum territorial contiguity” should be interpreted. Having said that, it is crucial to note that even if these agreements were fully implemented, it is not clear how much territorial contiguity would have been enhanced given that settlements and their associated infrastructure, which dotted the landscape of Area C of the West Bank and which were under the control of Israel, were explicitly left to final status negotiations (and therefore were not part of the implementation of these agreements).

The next question, then, is how to interpret the words “including further action on settlements”. Does the word “including” tie back to the “implementation of prior agreements” and/or to the language around enhancing “maximum territorial contiguity”? As previously mentioned, given that both the Oslo I and II Accords (as well as subsequent agreements) explicitly left discussion of settlements to final status negotiations, it is reasonable to assume that this “further action on settlements” ties back to enhancing “maximum territorial contiguity”. Indeed, one of the major sticking points in the negotiations at Camp David II and elsewhere was the lack of contiguity of a potential Palestinian state because of settlements dotting the landscape all across the West Bank. Having said that, the words “further action” are left undefined, and as such, it is not clear what this “further action” consists of.

I suspect that this language was purposefully ambiguous to allow each side to claim its favorite interpretation of the text (as an aside, all these bilateral agreements contain such ambiguous language). For example, the pro-Israeli side could interpret those words in a way that would lead to the annexation of the vast majority of settlements around the Green Line with perhaps the dismantlement of smaller settlements deep into the West Bank, which would allow for potential contiguity of a future Palestinian state but with reduced borders well within the Green Line (at best, land swaps could be executed to “make up” for Israeli annexation of territory inside the Green Line, although the quality and quantity of land received in return has always been a contentious point of negotiations). Meanwhile, a more pro-Palestinian reading could interpret those same words as implying dismantlement of all or the vast majority of settlements, since dismantlement of settlements would enhance maximum territorial contiguity of a future Palestinian state.

The pro-Palestinian reading is indeed the interpretation of Amr Mousa, the Secretary General of the Arab League, who stated at the time that “the real execution of the map is the dismantlement of all settlements and not some random ones”.

It was also the interpretation of Kieran Prendergast, the UN Under-Secretary-General for Political Affairs, who stated that “[…] those actions would not be a substitute for Israel’s compliance with other obligations under the Road Map, such as dismantling all settlements activity”.

That interpretation is also consistent with UN General Assembly resolution 61/118, which was passed in 2007 (so well after the Roadmap resolution), which, in operative clause 3:

  • “3. Notes the Israeli withdrawal from within the Gaza Strip and parts of the northern West Bank and the importance of the dismantlement of the settlements therein as a step towards the implementation of the road map”;

and then reiterates and stresses the full implementation of prior UNSC resolutions, including UNSC 465 in operative clauses 6 and 8:

  • “6. Reiterates its demand for the immediate and complete cessation of all Israeli settlement activities in all of the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, and calls for the full implementation of the relevant resolutions of the Security Council [in the preamble, it states: “Recalling also relevant Security Council resolutions, including resolutions 242 (1967) of 22 November 1967, 446 (1979) of 22 March 1979, 465 (1980) of 1 March 1980, 476 (1980) of 30 June 1980, 478 (1980) of 20 August 1980, 497 (1981) of 17 December 1981 and 904 (1994) of 18 March 1994];
  • 8. Stresses the need for full implementation of the relevant Security Council resolutions regarding the Israeli settlements”.

To be clear, I am not claiming that the “dismantlement interpretation” is the only or even the best interpretation of that language; as I previously mentioned, there are clearly other interpretations that can be applied to this ambiguous language. However, the presence of this language, as opaque as it is, does potentially afford an avenue to whoever wants to interpret it that way with something to point to. In contrast, we don’t even have that in UNSC resolution 2334.

2) UNSC 2334 provides international legal justification for BDS against settlements

This point was implied by Mondoweiss commentator ‘punterweger’, who linked to Rashid Khalidi’s NYT article and which makes this argument. To be specific, Khalidi says that “it [UNSC 2334] ‘calls upon states to ‘distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.’ This provides the international legal justification for sanctions by states, boycotts of goods produced in settlements, and divestment by unions, foundations and universities of assets in companies that support the colonization of Palestinian land.”

Khalidi is referring to operative clause 5 in UNSC 2334, which:

“5. Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”.

It is not clear why Khalidi believes that this clause provides the legal international justification for BDS against settlements. As Khalidi surely knows, there is a mountain of international law that already exists and that explicitly considers all Israeli settlements as illegal. Indeed, per Wikipedia’s entry on International Law and Settlements:

“The international community considers the establishment of Israeli settlements in the Israeli-occupied territories illegal under international law, because the Fourth Geneva Convention of 1949 prohibits countries from moving population into territories occupied in a war.[1][2][3][4][5] Israel maintains that they are consistent with international law[6] because it does not agree that the Fourth Geneva Convention applies to the territories occupied in the 1967 Six-Day War.[7] The United Nations Security Council, the United Nations General Assembly, the International Committee of the Red Cross, the International Court of Justice and the High Contracting Parties to the Convention have all affirmed that the Fourth Geneva Convention does apply.[8][9]

Numerous UN resolutions have stated that the building and existence of Israeli settlements in the West Bank, East Jerusalem and the Golan Heights are a violation of international law, including UN Security Council resolutions in 1979, 1980,[10][11][12] and 2016.[13][14] UN Security Council Resolution 446 refers to the Fourth Geneva Convention as the applicable international legal instrument, and calls upon Israel to desist from transferring its own population into the territories or changing their demographic makeup. The reconvened Conference of the High Contracting Parties to the Geneva Conventions has declared the settlements illegal[15] as has the primary judicial organ of the UN, the International Court of Justice[16] and the International Committee of the Red Cross“.

Logically, if settlements are illegal and a violation of international law, then clearly:

  • Anyone dealing with Israeli settlements is in violation of international law.
  • There is a distinction being made, ipso facto, between “Israel proper” and settlements (given that Israel is legally recognized under international law).

This logic is furthermore reflected in policies already in place by numerous countries. Indeed, the European Commission adopted “on 11 November 2015 an interpretative notice on the indication of origin of goods from the territories occupied by Israel since June 1967” to clearly distinguish them from “Israel proper”. Furthermore, the council of the European Union, on January 18 2016, first re-iterated that settlements are illegal under international law:

“7. Recalling that settlements are illegal under international law, constitute an obstacle to peace and threaten to make a two state solution impossible, the EU reiterates its strong opposition to Israel’s settlement policy and actions taken in this context, such as building the separation barrier beyond the 1967 line, demolitions and confiscation – including of EU funded projects – evictions, forced transfers including of Bedouins, illegal outposts and restrictions of movement and access. It urges Israel to end all settlement activity and to dismantle the outposts erected since March 2001, in line with prior obligations. Settlement activity in East Jerusalem seriously jeopardizes the possibility of Jerusalem serving as the future capital of both States”.

Then, they made sure to distinguish between “Israel proper” and the settlements in the very next clause:

“8. The EU and its Member States are committed to ensure continued, full and effective implementation of existing EU legislation and bilateral arrangements applicable to settlements products. The EU expresses its commitment to ensure that – in line with international law – all agreements between the State of Israel and the EU must unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967. This does not constitute a boycott of Israel which the EU strongly opposes.”

In other words, the EU has already been distinguishing in its dealings between “Israel proper” and the settlements and is using already existing international law to justify that (as a side note, I would recommend reading the entire EU council statement; it is remarkable how similar certain parts are to UNSC 2334). As such, there’s nothing preventing other states from doing so as well, regardless of UNSC 2334. Therefore, operative clause 5 in UNSC 2334 does not provide the legal foundation for anything; at best, it explicitly states what is already and clearly implied within existing international law and what many countries are already doing.

3) UNSC 2334 is supportive of BDS, and provides impetus to the BDS movement

This is another point raised by Mondoweiss commentator ‘punterweger’. It is quite possible that this resolution will provide some impetus to the BDS movement, although how to quantify that is an open question. Furthermore, it is important to remember that this resolution (via operative clause 5) is supportive of BDS only against settlements. The BDS movement, on their website, “urges nonviolent pressure on Israel until it complies with international law by meeting three demands:

  • Ending its occupation and colonization of all Arab lands and dismantling the Wall
  • Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality
  • Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN Resolution 194″.

BDS against settlements is not an explicit objective of the BDS movement. At best, it could be read into the first BDS objective, but even then, it is not a primary objective. Indeed, even if BDS against settlements was completely successful, and all settlements were dismantled, that would not end the occupation and colonization of all Arab lands, nor would it recognize the fundamental rights of Arab-Palestinian citizens of Israel to full equality, nor would it impact the implementation of the right of return. As such, operative clause 5 of UNSC 2334 could be construed as “supportive of BDS” only in a very limited and (at best) secondary sense, and as previously discussed, does not add anything new to international law that the BDS movement couldn’t already point to.

Editorial note: this post was updated on 1/18/17 to reflect a missing section in the original blog post (the section has been clearly identified between stars ****).

UN resolution on settlements is a step back for Palestinians

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My latest article has been published at Mondoweiss.

A part of work in Jewish settlement of Harmoun Hanatsave near the Arab neighbourhood of Ras al-Amud

Jewish settlement of Harmoun Hanatsave near the Arab neighbourhood of Ras al-Amud in Jerusalem on Oct. 30, 2012. (Photo: Mahfouz Abu Turk/APA Images)

“UNSC resolution 2334 includes weaker language on Israeli settlements than prior UNSC resolutions which called for Israel to dismantle existing settlements and lacks a real enforcement mechanism. There is little reason to believe it will have a practical effect in halting and dismantling Israel’s settlement enterprise.” – Mondoweiss

Clinton vs. Sanders Primaries: Final Tally

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Clinton vs. Sanders (Nigel Paray for CNN)

The purpose of this post is to present a final tally of the Clinton vs. Sanders primaries. As everyone already knows, Clinton beat Sanders rather handily, so this post is really for completeness. Having said that, I will also discuss the performance of the regression model I developed in more detail, present the mathematical formulation in case people are interested, as well as provide the code used to generate the regression results. I may write a follow-up post with detailed analysis and a breakdown of the numbers by state, by demographic category etc, but that will depend on how much time I have available.

Actual Results:

The final pledged delegate count is 2205 vs 1846 in favor of Clinton. As such, the final margin is 359 pledged delegates. Clinton won 54.4% of total pledged delegates vs 45.6% for Sanders. Note that Clinton won the popular vote by a larger margin than the pledged delegate vote given that Sanders won the a large number of pledged delegates in caucus states that had very low voter turnout.  Here’s the final tally:

Clinton vs Sanders Final Table

Table 1. The table tracks actual pledged delegates won by Clinton and Sanders vs. model projected delegates, and calculates the delta between the two

Analysis of Actuals vs. Projections:

Clinton vs Sanders Graph Final

Fig 1. The graph shows (off the left-hand axis) the delegates won or lost by Clinton after each primary (blue bars mean Clinton won the state; red means Sanders won); the size of the bars reflect the difference in delegates won or lost for each state. The bars are staggered in “water-fall” fashion to reflect Clinton’s actual total delegate lead, which is compared against model projections of Clinton’s delegate lead (black dots). The graph also tracks (off the right-hand axis) actual delegate % won for Clinton (blue line) vs. Sanders (red line), and compares against model projected % for Clinton (blue dots) vs. Sanders (red dots)

So how did the model do overall? Final tally gives Clinton 54.4% of pledged delegates, whereas the model projected 57.3% (Sanders won 45.6% of pledged delegates vs. model projections of 42.7%). So the model clearly was “biased” towards Clinton, but still, given that these projections were made over 4 months ago (and remained unchanged), coming in within less than 3% of actuals (2.9% to be exact) is pretty good!

A different cut of the data suggests a similarly predictive story. There were 41 contests after March 1st for which we made predictions. The model correctly predicted 33 out of the 41 contest winners; that’s an 80%+ success rate. The model misses were Michigan, Democrats Abroad, Alaska, Hawaii, Connecticut, Indiana, Kentucky and South Dakota. What accounts for these misses?

  • Bad demographic data: Recall that the model works off of the “racial” demographics of states, and buckets them into 3 broad categories (White, Black, Hispanic) and a catch all Other category; if the demographic data available is poor or doesn’t “fit” this bucketing (especially if the Other category for a state is large), the projections will be a crap-shoot. We did not have good demographic data (or the data bucketing was poor) for the Northern Marianas, Democrats Abroad, Alaska, Hawaii, Guam, Virgin Islands or Puerto Rico, and so it isn’t a surprise that the model missed 3 out of those 7 contests (in retrospect, I shouldn’t have even attempted a projection of these contests given that the regression coefficients for the Other bucket were very much dependent on the results of tiny American Somoa).
  • Very close results (that could have gone either way): The model predicted very narrow victories for Sanders in Connecticut, Kentucky and South Dakota, whereas actual results very narrowly favored Clinton. The delta between actual number of pledged delegates won by Clinton (or Sanders) versus those predicted by the model was 1 for each one of those states.
  • Legitimate misses: The model missed both Michigan and Indiana by relatively wide margins. One can say that demographics in these states were clearly not the only story.

One final note on factors beyond demographics. As the race progressed, it became clear that the format of the contest (primary vs. caucus; open vs. closed etc) played an important, though secondary role, in the race. Demographics were still primary in predicting the race, but it’s also likely that including the format of the contest could have made the predictions more accurate. Having said that, it’s rather remarkable that something as crude as the “racial make-up” of the Democratic electorate could have such predictive power.

How the model “works”:

In the embedded document below, I provide details of the regression model actually used, including the mathematical formulation as well the code used to generate the regression coefficients that are then used in the projections.

A computationally useful algebraic representation of nonlinear disjunctive convex sets using the perspective function

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It took 10 years (mostly my slacker fault), but it’s finally submitted! Pre-print available at Optimization Online.

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Abstract: Nonlinear disjunctive convex sets arise naturally in the formulation or solution methods of many discrete-continuous optimization problems. Often, a tight representation of the disjunctive convex set is sought, with the tightest such representation involving the characterization of the convex hull of the disjunctive convex set. In the most general case, this can be explicitly expressed through the use of the perspective function in higher dimensional space – the so-called extended formulation of the convex hull of a disjunctive convex set. However, there are a number of challenges in using this characterization in computation which prevents its wide-spread use, including non-differentiability issues that arise because of the functional form of the perspective function. In this paper, we propose an explicit algebraic representation of a fairly large class of nonlinear disjunctive convex sets using the perspective function that addresses this latter computational challenge. This explicit representation can be used to generate (tighter) algebraic reformulations for a variety of different problems containing disjunctive convex sets, and we report computational results using this representation for several nonlinear disjunctive problems.

Descartes’ “Meditations on First Philosophy”: First Meditation

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Introduction

I plan on examining Rene Descartes’ “Meditations on First Philosophy” in a series of posts; interestingly, the subtitle of Descartes’ work is “In which the existence of God and the immortality of the soul are demonstrated”. The treatise was first published in 1641 in Latin as a series of six Meditations, and subsequently translated into French. However, I will be using John Cottingham’s English translation, available online here, in what follows.

In this post, I’ll focus on his First Meditation, subtitled “What Can Be Called Into Doubt”. I plan on discussing the text in detail, clarifying concepts and critically examining some of Descartes’ arguments.

As an aside, Descartes is widely considered to be the father of modern Western philosophy, and this particular work continues to exert much influence in contemporary philosophical discussions. Specifically, within the area of epistemology, his “method of doubt” is an approach that continues to inform skeptical approaches to knowledge, while in the area of metaphysics, his doctrine of “Cartesian dualism” (which essentially states that material and immaterial things, like bodies and souls, respectively, are distinct and separate) continues to frame discussions around the soul, consciousness, and other aspects of the philosophy of mind (among other things).

First Meditation – What can be called into doubt

Descartes begins this work by remarking that:

“Some years ago I was struck by the large number of falsehoods that I had accepted as true in my childhood, and by the highly doubtful nature of the whole edifice that I had subsequently based on them. I realized that it was necessary, once in the course of my life, to demolish everything completely and start again right from the foundations if I wanted to establish anything at all in the sciences that was stable and likely to last”.

Descartes’ first sentence is revealing. Descartes was a foundationalist, and as such, believed that it was essential to secure a foundation of beliefs that were certain upon which his remaining beliefs could rest. In other words, he believed that knowledge could only be built on (foundational) beliefs that were apodictically true (i.e. certain); otherwise, those remaining beliefs could not be taken to be (necessarily) true since they would rest on shaky or uncertain foundations. The approach that Descartes uses to establish these secure foundations is through a process of dialectic: he begins by positing a hypothetical set of beliefs that could potentially be certain, then proceeds to show, through counter-examples and thought experiments, that the posited beliefs could be doubted (and therefore, could not serve as beliefs that were certain). He then updates those doubtful beliefs to new beliefs that are potentially more certain by informing himself of the reasons for rejecting the old beliefs, only to show in similar fashion that those new beliefs could be doubted as well via new counter-examples and thought experiments. This process goes on until, it is hoped, he arrives at “an Archimedean point” – a belief that could not be doubted and that could serve as a foundation for his edifice of knowledge. It is critical to appreciate that throughout this process, Descartes adheres to the principle of “withholding assent” to beliefs that he could doubt; as such, if he could doubt them, then these beliefs were not certain, and therefore should not serve as his foundations. Indeed, he explicitly states this in the following paragraph:

“But to accomplish this, it will not be necessary for me to show that all my opinions are false, which is something I could perhaps never manage. Reason now leads me to think that I should hold back my assent from opinions which are not completely certain and indubitable just as carefully as I do from those which are patently false. So, for the purpose of rejecting all my opinions, it will be enough if I find in each of them at least some reason for doubt”.

The argument from the senses

Descartes begins his exercise by identifying the senses as his most widely used method of obtaining (what he believes up to this point are) true beliefs, only to quickly dismiss it as inadequate:

“Whatever I have up till now accepted as most true I have acquired either from the senses or through the senses. But from time to time I have found that the senses deceive, and it is prudent never to trust completely those who have deceived us even once”.

The formal argument for the dismissal of the senses

P1: The senses deceive us sometimes

P2: It is prudent never to always trust those (things) that have sometimes deceived us

C: It is prudent never to always trust our senses

Descartes then proceeds dialectically. He acknowledges that you cannot always trust your senses, but surely, he thinks, this does not imply that you could never trust your senses:

“Yet although the senses occasionally deceive us with respect to objects which are very small or in the distance, there are many other beliefs about which doubt is quite impossible, even though they are derived from the senses – for example, that I am here, sitting by the fire, wearing a winter dressing-gown, holding this piece of paper in my hands, and so on. Again, how could it be denied that these hands or this whole body are mine?”

In other words, Descartes is saying that just because some beliefs obtained through the senses could be doubted (regarding objects that are very small or in the distance) does not imply that all beliefs derived from the senses could be doubted (e.g. that he is here, sitting by the fire etc). As an example, imagine walking in the desert and seeing what appears to be an oasis in the distance, only to realize, as you got closer, that this was merely a mirage; as such, you would have been deceived by your senses. However, would you then necessarily conclude, on that basis, that your senses were deceiving you when you looked at your hands? Would you dismiss the notion that you had hands merely because you used your senses to arrive at that conclusion? If you are convinced by this argument, then you believe the following updated conclusion to be true:

C’: Although it is prudent never to always trust our senses (because they can sometimes deceive), it is foolish to always dismiss our senses (because some beliefs obtained through our senses cannot be doubted)

The argument from insanity

Descartes’ next move is to counter the updated conclusion C’ (that some beliefs obtained from our senses cannot be doubted) by invoking the argument from insanity:

“Unless perhaps I were to liken myself to madmen, whose brains are so damaged by the persistent vapours of melancholia that they firmly maintain they are kings when they are paupers, or say they are dressed in purple when they are naked, or that their heads are made of earthenware, or that they are pumpkins, or made of glass”.

Here Descartes is essentially arguing that even supposed transparent truths such as “he is here, sitting by the fire, that his hands are his etc” could be doubted if he were insane. Indeed, if we think of people afflicted with schizophrenia, they often see things that we would consider delusions but that they firmly believe are “real”. As such, if Descartes was truly insane, then his beliefs that he is sitting here, by the fire etc, could be seen to be the delusions of a mad-man, thus casting doubt on his claim that transparent truths such as these (and that are obtained through the senses) could not be doubted.

The formal argument from insanity

P1: It is possible that I am insane

P2: If I am insane, then under all circumstances, I have reason to doubt that I can distinguish through my senses between what is “real” and what is not

C: Under all circumstances, I have reason to doubt that I can distinguish through my senses between what is “real” and what is not

What’s interesting about the argument from insanity is that for the argument to not be vacuous (I explain what I mean by that term below), P2 seems to presume that a meaningful distinction between what is “real” vs. what is not can be acquired through the senses if we were not insane; as such, if we were insane, that meaningful distinction could no longer be acquired though the senses. So P2 seems to be presuming the truth of P2’:

P2’: If I am not insane, then under at least some circumstances, I can distinguish through my senses between what is “real” and what is not

I say that it presumes the truth of P2’ because if it didn’t, then whether I was insane or not would be irrelevant to whether my senses could be used to distinguish between what is “real” vs. not. Indeed, the argument from insanity would become vacuous since in both cases, my senses could not be used to determine the difference between what was real and what was not (in at least some circumstances). Note that if P2’ was false, this wouldn’t falsify Descartes’ argument from insanity (i.e. P2 could still be true if P2’ was false); it would simply render it vacuous, or meaningless, as an argument. Our reaction would be yes, but so what (in the sense that we could not use our senses to distinguish between what was real vs. not even if we were not insane). As such, in order for this argument to have any force, we must pre-suppose that P2’ is true. But is P2’ true?

Descartes doesn’t address the above point. He does, however, dismiss the argument from insanity when he states:

“But such people are insane and I would be thought equally mad if I took anything from them as a model for myself”

I’m not quite sure what Descartes means by this. Is he invoking public ridicule as his reason for dismissing the argument? Alternatively, is he dismissing the argument because it would take seriously the notion that he was not rational (by presuming he was insane), and therefore put in jeopardy his entire philosophical exercise?

The dreaming argument

Regardless of his reasons for dismissing the insanity argument, Descartes continues with his philosophical endeavor by presuming that he is not insane (i.e. he rejects P1 above). He then makes yet another argument to cast doubt on the senses being purveyors of certainty – the dreaming argument.

The formal dreaming argument:

P1: There are no sure ways of distinguishing between dream experience vs. waking experience (so I could be dreaming right now while I experience something)

P2: Unless I know that I am not dreaming, then under all circumstances, I have reason to doubt that I can distinguish between what is “real” and what is not

C: Under all circumstances, I have reason to doubt that I can distinguish between what is “real” and what is not

Rejection of P1?

Could we not attack P1? Can we really say that there is no way to distinguish between dream experience and waking experience? Doesn’t the mere positing of the categories of “dream experience” vs. “waking experience” imply that we have, experientially-speaking, a conception of their difference (for amongst other things, why label two experiences that are the same differently)? Perhaps. But haven’t we all experienced “waking up in our dreams”, only to realize later when we “really wake up” that we were dreaming that we were awake? If so, then it must be acknowledged that the “dreaming experience” is experientially different in some sense to the “waking-up-in-our-dream-experience”, and yet, we were still dreaming in both. Now presumably, the “waking-up-in-our-dream-experience” is different than the “waking experience”. But could it not be possible that the “waking experience” was really just a second-order “waking-up-in-our-dream-experience” (i.e. an experience where we begin by dreaming that we are awake, only to realize that that experience was merely us dreaming that we were awake, only for us to be really dreaming all along). Indeed, could it not be possible that there really isn’t a “waking experience” at all, but only a series of higher-order “waking-up-in-our-dream-experiences” every time we think we are “really awake”? In other words, can we ever be sure that we “really wake up” at all? As such, the fact that we may have, experientially speaking, a conception of the differences between these experiences doesn’t negate the possibility that we could still be dreaming in all of these experiences. As a side note, I think something like this happens in the movie “Inception”, but it’s been a while since I watched it, and I remember it being so convoluted at the time that I can’t be sure at this point.

On a different note, it’s worth thinking about whether this argument pre-supposes the meaningfulness of an objective conception of reality, given that it seems to require a distinction between what is “really” happening vs. what we are experiencing. Indeed, when it is argued that the “waking experience” could really be a higher-order “waking-up-in-our-dream-experience”, and therefore that we are still “really” dreaming, the word “really” implies some non-subjective reality that actually exists objectively (i.e. the objective reality that we are dreaming). If we were to reject the conception of objective reality, then could we not argue against this line of thinking, since the idea of what was “really happening” would become nonsensical (i.e. reality would just be what we experienced)? Perhaps that is too high a price to pay, and I won’t pursue this any further, although I may return to the Dreaming Argument in a later post.

Rejection of P2: appeal to the Painter’s Analogy

At any rate, Descartes seems to attack P2. He acknowledges, for the sake of argument, that he is dreaming, and that

“[…] these particulars – that my eyes are open, that I am moving my head and stretching out my hands – are not true”.

Nevertheless, he claims that:

“[…] it must surely be admitted that the visions which come in sleep are like paintings, which must have been fashioned in the likeness of things that are real, and hence that at least these general kinds of things – eyes, head, hands and the body as a whole – are things which are not imaginary but are real and exist. For even when painters try to create sirens and satyrs with the most extraordinary bodies, they cannot give them natures which are new in all respects; they simply jumble up the limbs of different animals.”

Descartes is arguing by analogy here. Indeed, he analogizes paintings with dreams to make the point that although the paintings, in some sense, are not “real”, their inspiration or the different elements of the paintings are based on something “real”. As such, he would argue, by analogy, that although our dreams are not “real” in some sense, the elements of our dreams are based on something real, for where else would those elements have come from? He then ups the ante even further, by strengthening the requirements around the kind-of-elements that could be deemed to be real when he states:

“Or if perhaps they manage to think up something so new that nothing remotely similar has ever been seen before – something which is therefore completely fictitious and unreal – at least the colours used in the composition must be real. By similar reasoning, although these general kinds of things – eyes, head, hands and so on – could be imaginary, it must at least be admitted that certain other even simpler and more universal things are real. These are as it were the real colours from which we form all the images of things, whether true or false, that occur in our thought”.

Descartes seems to be making the argument that those things that are more “primary” or “general” in nature cannot be doubted to be real (such as the colours of the painting), whereas other less general things (such as eyes, heads etc) can be doubted to be real. What things does Descartes consider to be “primary”?  He answers:

“[…] the shape of extended things; the quantity, or size and number of these things; the place in which they may exist, the time through which they may endure, and so on”.

This leads Descartes to the tentative conclusion that although disciplines such as physics, medicine and other subjects that depend on the study of composite things could be doubted, truths deriving from more “general” subjects such as arithmetic and geometry could not be doubted, because:

“[…] whether I am awake or asleep, two and three added together are five, and a square has no more than four sides. It seems impossible that such transparent truths should incur any suspicion of being false”.

The Omnipotent God argument

Given Descartes’ religious background, the idea of an omnipotent God pervades his thinking. As such, Descartes questions how we would know that this omnipotent God had not brought about the appearance of an external world as well as the concepts of shape, size, and the more general things presumed to exist in the previous section – and presumably everything that could be believed – when in reality, none of these things “truly existed”?:

“How do I know that he has not brought it about that there is no earth, no sky, no extended thing, no shape, no size, no place, while at the same time ensuring that all these things appear to me to exist just as they do now?”

The formal Omnipotent God Argument

P1: An omnipotent being (God) exists

P2: An omnipotent being could have brought about the appearance of everything, when in reality, nothing truly exists

C1: I have reason to doubt that anything truly exists

Attempt at rejecting C1 by rejecting P2: the appeal to God’s Goodness

Descartes proceeds to reject C1 by arguing that P2 could not be true since God is supremely good, and therefore would not have created him in a way where he was always deceived about everything since that would be inconsistent with his goodness. The argument is as follows:

P3: God’s nature is supremely good

P4: A supremely good nature is inconsistent with me being created in such a way that I am totally deceived (i.e. deceived about everything)

C2: God’s supremely good nature is inconsistent with me being created in such a way that I am totally deceived

As soon as Descartes makes the above argument, he moves to counter that by showing that it would not, after all, be inconsistent with God’s supremely good nature for him to be deceived about everything (i.e. he rejects P4), given that he is sometimes deceived:

“But perhaps God would not have allowed me to be deceived in this way, since he is said to be supremely good. But if it were inconsistent with his goodness to have created me such that I am deceived all the time, it would seem equally foreign to his goodness to allow me to be deceived even occasionally; yet this last assertion cannot be made”.

P5: If God’s supremely good nature is inconsistent with me being totally deceived, then God’s supremely good nature is also inconsistent with me being sometimes deceived

P6: I cannot deny that I am sometimes deceived

C3 (P3+P6): Therefore, given that God is supremely good, it cannot be inconsistent with God’s supremely good nature that I am sometimes deceived

C4 (C3+P5): Therefore, it is not inconsistent with God’s supremely good nature for me to be totally deceived

Conclusion C4 follows by assuming the truth of C3 (which follows from P3 and P6) and P5. Indeed, P5 has the form of “if A then B”, where A is “God’s supremely good nature is inconsistent with me being totally deceived”, and B is “God’s supremely good nature is also inconsistent with me being sometimes deceived”. Given C3, then B must be false, which implies that A must be false as well (otherwise, A must be true, which implies that B must be true, which is a contradiction; in formal logic, this kind of argument is called Modus Tollens: not B, therefore not A). In fact P5 can be re-phrased as P5’:

P5’: If it is not inconsistent with God’s supremely good nature for me to be sometimes deceived, then it is not inconsistent with God’s supremely good nature for me to be totally deceived

Again, C3 and P5’ would lead to C4, as above.

Note that P5 (or P5’) is necessary to arrive to C4. But is there any necessary logical reason for P5 (or P5’) to be true? In other words, if God’s supremely good nature is inconsistent with me being totally deceived, does that necessarily imply that his nature is also inconsistent with me being deceived only sometimes? Isn’t it possible to imagine an omnipotent supremely good God who also has a sense of humor and who deceives his creations sometimes for fun, but who is still compassionate enough, given his Goodness, to not always deceive them? Alternatively, couldn’t this omnipotent supremely good God deceive his creations only sometimes in order to “protect them” or because occasional deception is in their interests, but refuse to completely deceive them because that would be harmful? Consider the analogy of “white lies”: don’t we sometimes engage in “white lying” because telling the truth at that moment is more costly than beneficial; and yet, we still insist that always lying is harmful? As such, one could argue that P5 (or P5’) need not be true, and therefore reject that premise. If so, then we would re-affirm C2 (that God’s supremely good nature would be inconsistent with him totally deceiving us), and by extension, be successful in rejecting P2.

Attempt at rejecting C1 by rejecting P1

Be that as it may, Descartes believes that that the rejection of P2 is not tenable, and considers next the rejection of P1:

“Perhaps there may be some who would prefer to deny the existence of so powerful a God rather than believe that everything else is uncertain”

Having shown that the existence of an omnipotent God, despite his supremely good-nature, could lead to being totally deceived (assuming one buys into P5), he considers the possibility that some would rather deny the existence of this God (in order to avoid this scenario of being totally deceived); for presumably, if this God did not exist, then there is at least a possibility of finding something that cannot be doubted.

Although the rejection of P1 would clearly falsify C1 in the Omnipotent God argument, Descartes claims that the rejection of P1 would affirm C1 (that we could doubt everything) through a different argument. Apparently, the rejection of an omnipotent God would ablate the possibility of ever guaranteeing that he is “well-enough put together” to avoid being in constant error:

“The less powerful they make my original cause, the more likely it is that I am so imperfect as to be deceived all the time”.

His “original cause” here is God. Descartes seems to implicitly connect his creator’s omnipotence to his own imperfections, and imperfections to deception. He seems to be saying that the less powerful his creator, the more likely he is of being imperfect, and therefore the more susceptible to deceit he is. The argument is as follows:

P7: The less omnipotent God is, the more imperfect I am

P8: The more imperfect I am, the more susceptible to deceit I am

P9: An omnipotent being (God) does not exist (i.e. not P1)

C5: I am susceptible to deceit (and the less omnipotent God is, the more susceptible to deceit I am)

Descartes’ argument above is intended to show that even if P1 is rejected, C1 must still necessarily be the case. As such, Descartes arrives at a dilemma, given that whether an omnipotent God exists or not, he must admit that all of his former beliefs are in doubt. However, is this argument convincing? The above argument implies that if God was completely impotent (this would presumably be the case if God didn’t exist at all), then we would be completely imperfect such that we would be totally susceptible to deceit. And yet, many people do not believe in God, and although none of them would claim to be perfect, none of them would also claim to be completely imperfect (and neither would we claim that they were completely imperfect). As such, though they may fall prey to deceit sometimes as a result of some imperfections, surely they are not always being deceived. For who would have the power to do that, if an omnipotent being such as God did not exist?

Conclusion

By the end of the First Meditation, Descartes is convinced that he has reason to doubt everything. However, being convinced of something and remembering to adhere to that something in practice are two different things. As such, in order for Descartes not to fall prey to habit and lapse back into beliefs he has shown he could doubt, he creates an ingenious mechanism – the malicious Demon – to remind himself of the conclusion that he has reason to doubt everything. This demon is malicious in the sense that he is constantly trying to deceive Descartes, and thus, forces him to withhold assent to any of his beliefs lest he fall prey to demonic deceit.

The formal Malicious Demon argument

P1: I have beliefs

P2: A malicious demon could be systematically making me believe only things that are false

C: All my beliefs could therefore be false (therefore, I have reason to doubt all my beliefs)

The malicious demon will make a further appearance in the Second Meditation as Descartes’ foil. There, Descartes claims to finally find his “Archimedean point” – I think, therefore I am (although not stated in this exact way) – that not even a malicious demon could cause him to doubt. I plan on exploring the Second Meditation, and Descartes’s Archimedean point, in a subsequent post.

Clinton vs. Sanders Primaries: Update 5-17

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Clinton vs. Sanders (Nigel Paray for CNN)

Actual Results:

Since our last update, Sanders gained some ground against Clinton as a result of wins in Indiana, West Virginia and Oregon (he lost Guam and Kentucky). The pledged delegate count is now 1771 vs 1499 in favor of Clinton. As such, he now trails Clinton by 272 pledged delegates. Clinton now holds a 54.2% to 45.8% advantage vs. Sanders in total pledged delegate %. Furthermore, Sanders now needs 67.5% of the remaining 781 pledged delegates to win (vs. 32.7% for Clinton). This means that if Sanders wins 67.5% of the remaining pledged delegates, he would win the battle for pledged delegates. Put differently, Sanders would need to win, on average, every contest until the end of the primaries by 34.8% to win the pledged delegate race (of course, if he wins some primaries by less than that, or straight-up loses future primaries, he would need to win other primaries by more than 34.8%). In our “Analysis Going Forward” section (see below), we present some scenarios under which Sanders could still win the pledged delegate nomination; however, keep in mind that all these scenarios are highly unlikely.

Clinton vs Sanders Graph1 5-17-16

Fig 1. The graph shows (off the left-hand axis) the number of pledged delegates won by Clinton and Sanders by state and cumulatively (Clinton in blue and Sanders in red); the remaining pledged delegates in the race (in gray); and the % of those remaining delegates needed to win for each candidate (off the right-hand axis).

A few notes worth mentioning:

  1. We’ve reached the 80%+ mark in the race. There are only 781 pledged delegates (out of 4051) in the remaining races.
  2. Sanders added an additional delegate in Maine once final numbers came in, as well as an additional delegate in Mississippi. On the other hand, he lost the 2 additional delegates he had won at the NV county convention in early April (relative to the district caucuses back in February) once the final state convention was held this past weekend. Although the state convention was marred with controversy, the end result is that the final NV delegate count reflects the original delegate count per by the district caucuses (20-15 in favor of Clinton).

Analysis of Actuals vs. Projections:

The model did OK in its projections of the primaries between April 26th and May 17th. Cumulatively, Clinton won 108 delegates vs. Sanders’ 127 delegates. The model predicted 117 for Clinton vs. 118 for Sanders. As previously discussed in our last update, we expected Sanders to win West Virginia and Oregon (which he did), and for him to be competitive in Indiana and Kentucky (he won the former by 5%, and lost the latter by less than 1%). Guam was a crap-shoot given lack of demographic data (Clinton won by a 60-40% margin). Overall, the model had projected a lead of 458 pledged delegates for Clinton at this point, for a 57.0% vs. 43.0% Clinton lead, so the model is still over-projecting in favor of Clinton (by +2.8%). That overshoot can be largely attributed to Sanders exceeding expectations during his caucus run in March. Final model projections are +590 pledged delegates and a 57.3% vs. 42.7% win for Clinton. Projections were developed after Super Tuesday on March 1st and have not changed since then. See here.

Clinton vs Sanders Graph2 5-17-16

Fig 2. The graph shows (off the left-hand axis) the delegates won or lost by Clinton after each primary (blue bars mean Clinton won the state; red means Sanders won); the size of the bars reflect the difference in delegates won or lost for each state. The bars are staggered in “water-fall” fashion to reflect Clinton’s actual total delegate lead, which is compared against model projections of Clinton’s delegate lead (black dots). The graph also tracks (off the right-hand axis) actual delegate % won for Clinton (blue line) vs. Sanders (red line), and compares against model projected % for Clinton (blue dots) vs. Sanders (red dots)

Clinton vs Sanders Table 5-17-16

Table 1. The table tracks actual pledged delegates won by Clinton and Sanders vs. model projected delegates, and calculates the delta between the two

Analysis Going Forward:

Going forward, the largest remaining chunk of delegates up for grabs occurs on June 7th, but before that, the Virgin Islands and Puerto Rico will hold their caucus and primary, respectively. Given the paucity of good demographic data for both the VI and PR, it’s hard to make any reasonable prediction, although the expectation is that Clinton will at least win PR (she won in a landslide against Obama in 2008). Aside from California, which we will discuss later, Sanders is expected to win Montana, North Dakota and South Dakota, and possibly big, given the favorable demographics and format (Montana is an open primary, North Dakota is an open caucus, and South Dakota is a semi-closed primary). On the other hand, Sanders is expected to lose New Jersey, New Mexico and the District of Columbia, all states whose demographics favor Clinton. This leaves California, which has 475 of the remaining 781 delegates, and which I believe will be a relatively close contest that Sanders is likely to lose, although not by the large margin projected by the model (the semi-closed format still allows independents to vote in the primary if they register by the appropriate date). Of course, given how far behind Sanders is in the delegate count, he not only must win California, but he needs to win it big. There are different scenarios that can still lead to a Sanders victory, but all are highly improbable:

  1. If the demographic projections per the model are accurate, Clinton is expected to win 173 vs. Sanders’ 133 delegates in remaining races ex-California, for a 56.5% vs. 43.5% margin. That would mean that Sanders would need to win California 82.9% to 17.1% (which would give him 394 delegates to Clinton ‘s 81 delegates) in order to win the pledged delegate race.
  2. If Sanders exceeds his demographic expectations and splits the remaining delegates ex-California 50%-50% with Clinton, he would need to win California by a margin of 78.7% to 21.3%.
  3. If Sanders far exceeds his demographic expectations and wins the remaining ex-California delegates by a margin of 67.5% to 32.5%, he would still need to win California by that same margin of 67.5% to 32.5%.

Of course, the alternative to winning the pledged delegate vote is to flip super-delegates at the convention, as Clinton is unlikely to get to the 2383 pledged delegates she needs to outright win the nomination, but that’s an even more unlikely scenario given that Clinton would have won the majority of the pledged delegates, the majority of the popular vote, and she is the party establishment (I also don’t believe the argument that Sanders does better than Clinton against Trump per the latest polls will sway the super-delegates, nor should it; polling 6 months out of an election has very little predictive power). Therefore, I continue to maintain that realistically, unless Clinton gets indicted between now and the convention, the best Sanders can hope for is to influence the Clinton agenda at the convention (a worthy endeavor) by staying in the race and trying to get as many delegates as he can. Next update after the primaries on June 7th.

How the model “works”:

The model regressed delegates won by Clinton vs. Sanders for primaries on March 1st and before against the “racial makeup” of those states. The resulting regression coefficients are then used to project future primaries based on the “racial makeup” of those future states.

Clinton vs. Sanders Primaries: Update 4-26

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Clinton vs. Sanders (Nigel Paray for CNN)

Actual Results:

Sanders continues to lose ground to Clinton as a result of some big losses in PA and MD. He now trails Clinton by 291 pledged delegates. Clinton now holds a 54.8% to 45.2% advantage vs. Sanders in total pledged delegate %. Furthermore, Sanders now needs 64.4% of remaining pledged delegates to win (vs. 35.7% for Clinton). This means that if Sanders wins 64.4% of the remaining pledged delegates, he would win the battle for pledged delegates (and by extension, the popular vote). Put differently, Sanders would need to win, on average, every contest until the end of the primaries by 28.7% to win the pledged delegate race (of course, if he wins some primaries by less than that, or straight-up loses future primaries, he would need to win other primaries by more than 28.7%).

Clinton vs Sanders Graph1 4-26-16

Fig 1. The graph shows (off the left-hand axis) the number of pledged delegates won by Clinton and Sanders by state and cumulatively (Clinton in blue and Sanders in red); the remaining pledged delegates in the race (in gray); and the % of those remaining delegates needed to win for each candidate (off the right-hand axis).

A few notes worth mentioning:

  1. We’ve reached the 3/4 way mark in the race. There are 1016 pledged delegates remaining (out of 4051) in the remaining races.
  2. Sanders won an additional 3 delegates at the CO state convention. If we add the 2 delegates he won at the NV state convention and the 1 delegate change in the GA primary, that’s 6 additional delegates that Sanders has won (and Clinton has lost) in primaries pre-March 1. Given that these were technically additional races independent of the district races, I’ve created a new “pre-March 1” bucket where I’ve lumped those changes together (and penalized my predictions as a result of that).
  3. Clinton gained 1 delegate in the IL race once final numbers came in.

Analysis of Actuals vs. Projections:

The model continued to do well in its projections of the April 26th primaries. Cumulatively, Clinton won 218 delegates vs. Sanders’ 166 delegates. The model predicted 212 for Clinton vs. 172 for Sanders. As previously discussed, we expected Clinton to slightly exceed her demographic projections because of the closed nature of the primaries, which is what occurred (with the exception of Rhode Island, which was a semi-closed primary; as such, registered independents could vote, and Sanders slightly exceeded his demographic projections). Still, overall, the model had projected a lead of 459 pledged delegates for Clinton at this point, for a 57.6% vs. 42.4% Clinton lead, so the model is still over-projecting in favor of Clinton (by +2.8%). That overshoot can be largely attributed to Sanders exceeding expectations during his caucus run over the past month. Final model projections are +590 pledged delegates and a 57.3% vs. 42.7% win for Clinton. Note that we have undone the retroactive changes in delegates before March 1st (GA and NV) from the last update (in addition to adding CO), thus penalizing our projections (relative to last update) to reflect, fairly I think,  changes that occurred as a result of “new” races in pre-March 1 primaries. As such, we go back to the original projected delegate delta of 590 in favor of Clinton. Projections were developed after Super Tuesday on March 1st. See here.

Clinton vs Sanders Graph2 4-26-16

Fig 2. The graph shows (off the left-hand axis) the delegates won or lost by Clinton after each primary (blue bars mean Clinton won the state; red means Sanders won); the size of the bars reflect the difference in delegates won or lost for each state. The bars are staggered in “water-fall” fashion to reflect Clinton’s actual total delegate lead, which is compared against model projections of Clinton’s delegate lead (black dots). The graph also tracks (off the right-hand axis) actual delegate % won for Clinton (blue line) vs. Sanders (red line), and compares against model projected % for Clinton (blue dots) vs. Sanders (red dots)

Clinton vs Sanders Table 4-26-16

Table 1. The table tracks actual pledged delegates won by Clinton and Sanders vs. model projected delegates, and calculates the delta between the two

Analysis Going Forward:

The expectation going forward (in primaries/caucuses pre-June 7th) is for Sanders to win West Virginia and Oregon, and to be competitive in Indiana (open primary) and Kentucky. Guam, the Virgin Islands and Puerto Rico are all caucuses for which we have poor demographic data, so it’s a bit of a crap-shoot, although I would expect Clinton to at least win PR. Of course, Sanders is so far behind at this point that only a California miracle on June 7th can save his campaign. Indeed, assuming he splits all remaining delegates 50-50 with Clinton with the exception of California (and that’s being generous given the Clinton-favorable NJ with its 126 delegates, the largest remaining non-California state), he would need to win California 85%+ vs. 15% to win the pledged delegate vote (assuming proportional allocation, he would actually need a 90-10 win, but given allocation rules, he would get all delegates if he crosses the 85% mark; this implies that, depending on how much better than 50-50 he does, he may still need 85%+ in CA to win the pledged delegate race). The alternative to winning the pledged delegate vote is to flip super-delegates at the convention (I don’t expect Clinton to get to the 2383 pledged delegates she needs to outright win the nomination), but that’s an even more unlikely scenario. Realistically, unless Clinton gets indicted between now and the convention, the best Sanders can hope for is to influence the Clinton agenda at the convention (a worthy endeavor) by staying in the race and trying to get as many delegates as he can. Next update after the Oregon primary on May 17th.

How the model “works”:

The model regressed delegates won by Clinton vs. Sanders for primaries on March 1st and before against the “racial makeup” of those states. The resulting regression coefficients are then used to project future primaries based on the “racial makeup” of those future states.