The Right Body Language For A Court Appearance

On Wednesday morning, I reported to the New York City Criminal Court to be arraigned on charges of disorderly conduct stemming from my arrest during a civil disobedience protest staged outside the office of the governor of New York State, Andrew Cuomo, on March 24th. The day proceeded along lines similar to those I had reported in my previous day in court (back in 2014, after protests outside the Israeli mission during the Gaza crisis): meet my fellow defendants; meet our union’s lawyers; wait to be called into courtroom; wait to be called up before judge. We would, in all probability, be granted an ‘adjournment contemplating dismissal’ (ACD)–a deferment for six months, during which time the charge would remain open and after which could be dropped. Unlike my last appearance in court, this time my name was called out in the first group itself.

I walked up to the front of the courtroom and stood in front of the judge. My fellow defendants–three of them–stood next to me. As I stood and waited, I crossed my arms in front of my chest. Seeing this, a court guard–who was handing papers to the judge–walked up to me and told me to put my arms down. He didn’t specify an alternate location; just that the current one wouldn’t do. I complied; I had no intention of arguing with a police officer in a courtroom, thus risking another arrest for ‘disorderly conduct’ even as I was appearing in court for another such charge.

But the business of being told to adopt the ‘correct’ or ‘appropriate’ body language was intriguing and revelatory. So much of what happens in the courtroom is pure performance, a legal theater: the judge’s seat placed on high, the imposing architecture, the formal, stately, convoluted language, the solemnity, the tightly circumscribed procedure, all the better to impress upon legal subjects–sinners, penitents, and legal officers alike–the awe-inspiring power and majesty of the law. Respect; deference to authority; unblinking conformity–these are the values to be reinforced in this space.

My act of crossing my arms was, I suppose, in this context, an insolent gesture: I did not convey the appropriate respect. I was certainly not causing any disruption; I did not talk; I had not raised my voice.  I was not a threat of any sort–in case, you think that crossing arms allows for the concealment of weapons–because I had already been searched upon entrance to the court. No, quite simply, I had to be bent into that shape which would convey the appropriate respect for the court. And also the particular and peculiar blend of humility and servility that the law is looking for in those who ‘commit crimes.’ The guard’s admonishment was a reminder I was not following the director’s stage instructions.

A minute or so later, it was all done, and I headed to campus with a warning from the judge to ‘stay out of trouble.’ That will not be easy if the Governor of New York State does not restore funding to the City University of New York, if the CUNY administration does not sign a new contract with its faculty and staff.

Protesting Gaza: After Gaol, A Day in Court

This morning, I reported to the New York City Criminal Court to be arraigned on charges of disorderly conduct (blocking traffic)–these stemmed from my arrest during a civil disobedience protest staged outside the Israeli mission to the UN on July 29th. My half-day in court was not as tedious and onerous as my day of imprisonment. It couldn’t possibly be, but it had its moments all the same.

I arrived promptly at 9AM, and soon thereafter, met–besides those who had been arrested and charged similarly–attorneys from the National Lawyers Guild, who would represent us at the hearing (three, I think, were present in all; I am grateful to all of them for their help.) I was quickly advised about my legal options: accepting the charge of ‘adjournment contemplating dismissal’ (ACD)–a deferment for six months, during which time the charge would remain open and after which could be dropped; a plea of ‘guilty’, which would result in a $125 fine and a misdemeanor conviction that would stay on my record for a year; a plea of ‘non-guilty’, and thus the possibility of a trial. The consensus seemed to be that accepting the ACD was the way to go–in case I was offered that option by the state (which seemed likely, as I had no priors.)

From there on, the waiting began. From our total of twenty-nine, groups of three or four were called in to the courtroom, and their cases disposed of. Unfortunately, it soon became apparent that I would be among the last to be called. I soon found out why; the papers pertaining to my case were nowhere to be found. I groaned. Perhaps I would have to return to court on another day? Fortunately, a little later, at 11:45 AM or so, the papers were sent over from the DA’s office and my arraignment proceeded.

I waited in the courtroom for a little over ten minutes. In that time, two other defendants–not from our group–went up to be arraigned, both on charges of marijuana possession; one of the two young men had been arrested in the public housing building he lived in. (Great, I thought, a perfect use of police and court time.) Soon thereafter, our numbers were called; we walked up, heard the charge and the offer of the ACD. I accepted, and that was that.

As noted above, my case remains open for the next six months. In all probability, the charges will be dropped at the end of that period. If I am arrested again in the interim, this current charge will appear on my record as a prior, thus possibly complicating the charges at my next arraignment.

My many thanks again, to those who spent the day in gaol with me–all of whom I met again today (including Norman Finkelstein, Corey Robin, and Benjamin Kunkel). It was a pleasure to renew their acquaintance. And to be reminded of the reason why we were handcuffed, imprisoned temporarily, and then made to appear in court today, some six weeks later.

I would do it again.

 

Not So Fast With The Private Surveillance

A revealing–no pun intended–reaction to news of Steven Salaita’s troubles at the University of Illinois was that he was only paying the price for having his social media speech monitored (or surveilled) by his employer. As the argument goes, all employers monitor social media; we should all accept the consequences–in our places and zones of employment–of our public speech being monitored by our employers in non-workspace settings; Salaita’s employer did just that; he should deal with the consequences.

In an earlier post, I noted some of the adverse implications of such a situation for academics. But it is problematic for all workers, precisely because of the not-so-benign assumptions smuggled into its premises. First, it  uncritically accepts employer surveillance, not just of work spaces but of speech zones elsewhere as well–the restriction to social media networks is a red herring. This premise suggests we have no expectations of privacy–0r vastly lowered ones–in public spaces; but we clearly do, as our reactions to rude eavesdroppers at our restaurant table or street-corner conversations would suggest. Rather than meekly rolling back the boundaries of acceptable private surveillance to include more speech zones, this debate offers us an opportunity to inspect and examine where and how–and to what end–we consent to having our communications monitored by our employers.

Second, what does it mean to allow the content of our non-work space speech used against us in work space decisions such as hiring and firing? It means introducing an element of critical control and scrutiny into a domain where we expect to speak freely, to permit a regulation of speech by an entity as powerful, if not more, than governmental ones. No legal strictures would be required for chilling effects to be produced; the mere fear of the denial of livelihood would be enough. (Unsurprisingly, political activism of all stripes becomes easier when means of livelihood are not at stake; not for nothing is the tenured radical’s freedom so often lampooned by his critics.) The paucity of First Amendment restrictions on private employers is well-known; permitting their expansion, just because the technical means enable it, is to concede defeat all too quickly. Moreover, to permit it in a zone where the technical means permit it is to open the door to more extensive surveillance provided the technical means can be made available. This is to lose the argument at precisely the wrong point. After all, why not just micro-chip all from birth so as to permit future employers make the most informed decisions regarding suitability?

This reaction–the surveillance is in place, it is inevitable–is also depressingly indicative of the acceptance of an asymmetric surveillance; there is no talk of increasing employer–or chief executive–transparency to accompany this rollback of privacy safeguards. And lastly, as always there is the most appalling suggestion of all, more indicative of a civilizational  decline than anything else: when it comes to doing business, to making money, all concerned enter a morality-free zone of sorts; no imperative larger or more grand than an increase in profits need animate anyone’s actions.

The Only Apparent Easiness Of Meta-Protest

Finding fault with the form and content of political critique or protest comes easily to some: You chose a mode of protest that was inappropriate–it was too loud, it was violent, it was not inclusive enough; your protest is hypocritical–you do not protest injustices relevantly similar to the ones you protest currently; and lastly, and relatedly, why protest this, and not that?

Here are some recent exhibits of these objections and responses to them:

1. Corey Robin engages with Michael Kazin‘s ‘Why Single Out Israel’ objection to the BDS movement. (Do check out the follow-up too.)

2. I respond to Bernard-Henri Lévy‘s ‘selective outrage’ accusation (like Kazin, Lévy’ insinuates anti-semitism.)

3. Vijay Prashad responds to Manu Joseph‘s dismissal of Indian leftist and middle-class critique of Israeli policies in Gaza.

There is considerable overlap in these responses (Robin and I cover some of the same bases in our noting the necessary and appropriate selectivity of political action; and Prashad and I both note that ties with Israel–political and economic–animate and crucially direct and focus the protests in the US and India.)

Another–entertainingly well-written–instance of such a debate may be found in George Scialabba‘s acerbic response to Paul Berman‘s recent essay on Alexander Cockburn. In it, Scialabba takes on a common complaint made against the American left–its alleged sympathy for totalitarian regimes–and eviscerates it:

For decades Berman and others have promulgated a misleading and self-serving distinction between the “anti-imperialist” left and the “anti-totalitarian” left. The former allegedly attribute all the world’s evils to capitalism…and are reluctant to criticize any regime that calls itself…“socialist” or “communist.”…The anti-totalitarians…assert[s] instead the primacy of democracy and human rights….since American leaders repeatedly profess their determination to assist freedom and democracy everywhere, American foreign policy, even if it involves the illegal use of military force, will often deserve support.

The anti-imperialist/anti-totalitarian distinction is misleading because…one side (Cockburn’s) is protesting crimes that their readers can readily, as citizens, do something about, and in fact are ultimately responsible for, while the other side (Berman’s) is not. Abuses by Castro and Chavez, and crimes by Saddam and Iran’s ayatollahs, are undoubtedly real. But the U.S. government did/does not support those regimes and was/is not responsible for their crimes….Certainly the U.S. should do everything possible (and legal) to undermine, or at least chastise, those authoritarian regimes. But of course, it already does that—and in fact does a great many illegal things as well…for strategic reasons. Embargos, support for coup attempts, and outright invasions are all acts of aggression…which the anti-totalitarians have a distressing tendency to wink at….

For the last four decades at least, human rights abuses in U.S. client states—Turkey, Indonesia, Colombia, Guatemala, El Salvador, Nicaragua under Somoza, Argentina, Brazil, Iran under the Shah, Iraq under Saddam (until 1991)—vastly exceeded those in Soviet client states. The anti-totalitarians said comparatively little about the former, even though the U.S. could usually have halted the abuses simply by threatening to cut off military and diplomatic support….the anti-totalitarians kept a sharp focus on Eastern Europe and the Soviet Union, over whose governments they had no leverage and whom the U.S. government needed no encouragement to oppose.

The anti-totalitarian position amounts…to this: vigorous criticism of the crimes of one’s government’s enemies, whose policies one cannot affect; feeble or no criticism of the crimes of one’s own government, whose policies one can affect.

As Scialabba and Robin rightly suggest, with varying degrees of explicitness, one straightforward suggestion contained in these forms of meta-protest is to either cease the protest altogether, or to force it into a channel where it may be suitably defused. As ideology-preserving measures go, meta-protests have a long and dishonorable record of success; the rhetorical and critical forms of responding and refuting them could do with a little more airing.

Causal Analysis, Moral Culpability, And Gaza

If X causes Y, and Y causes Z, then surely X is the cause of Z? So goes the intuition–very roughly–that the causal relation is transitive. It thus often underwrites arguments about moral culpability and responsibility–sometimes even in legal settings. If I am the cause for your actions, then I am culpable, by one reckoning, for the effects of your actions.  (Again, very roughly, for there are very interesting interactions with moral agency here.) The skeptical have, for a long time, pointed to a possible W, the cause of X, which might be dragged into this business, thus endlessly postponing the business of causal ascription as the chain of causes is extended backwards to the origins of the universe. The distinction between distal and proximal causation in legal contexts is sometimes taken to clarify the confusion that might result if this causal chain were to be so extended.

As most pragmatically inclined folks never tire of pointing out, causal ascription is an inherently interest-laden enterprise; our identification of causes is driven not so much by metaphysical clarity about the necessary and sufficient conditions for causation as it is by our desire to be able to produce certain effects and not others, to assign blame and responsibility at some points in the causal chain and not at others. Some parts of the causal chain appear more amenable to our influence than others and thus influence our causal ascriptions in legal and moral analysis. We cannot, for instance, do much about the chemical properties of water and its effect on human lungs when it comes to preventing deaths by drowning, but we can certainly offer swimming lessons and put up warning signs around large bodies of water. (The distinction between distal and proximal causation is a related pragmatic aspect of causal analysis; see too, my little pointer to moral agency above.) And of course, our identification of points in which culpability originates are driven very much by our–sometimes overt, sometimes concealed–motives and interests. What ends are we interested in bringing about? Where might our sympathies lie?

I was reminded of some of these considerations during a discussion on Facebook,  where the following question was asked, in relation to the assignment of responsibility and culpability for the deaths of civilians in Gaza: .

What…is Israel supposed to do? What’s the right response to having a country on your border that sponsors – rather openly – rocket attacks on your territory, and has built a network of tunnels under the border and a whole terror infrastructure from which its operatives can enter the territory and attack your citizens?…I can’t get my mind around the notion that anyone other than Hamas bears the responsibility for this horror. 

Here, Hamas bears moral culpability for civilian deaths: they fire rockets (or kidnap teenagers), which provoke Israeli retaliation, which causes the deaths of Gazan civilians.

In one of my responses, I asked:

Is your general claim that any cross-“border” violence is an invitation to massive, violent retaliation that might involve as an unfortunate side-effect eighty percent civilian casualties?

This was responded to with:

If some crazed Canadian drug lord starts firing mortars into Buffalo NY I wouldn’t recommend massive, violent retaliation. If the Canadian government refused to recognize the US and armed fighters to attack across the border, and refused to assist in their capture … different story. It’s an act of war ON HAMAS’ PART, and when Israel responds with additional acts of war, I don’t think they are culpable.

I then responded with:

As for culpability, is Hamas also responsible when Israel is told by independent relief agencies that children are sheltering in a particular venue and still bombs them anyway?

And then, to bring us to the subject matter of this post, I wrote:

To grant your point about culpability is to do no more than to stop the analysis of the causal chain at a point that suits the thesis you want to establish: that Israel is not morally responsible for the deaths of innocents.

And I then asked the rhetorical question:

You’ve studied proximal causation in legal theory. Who is culpable here?

This discussion, I think, illustrates quite well, the points raised in my preliminary discussion above. Note too, that one response to the Israeli claim that Hamas is culpable for the current deaths of civilians–because of rocket attacks, or the kidnappings of Israeli teenagers–always has been: What about the occupation?

Steven Salaita and Academic Freedom in Academic and ‘Non-Academic’ Spaces

Steven Salaita might have thought he was headed for a new faculty position: the University of Illinois had made him a job offer, he had accepted, and resigned his position at Virginia Tech. But not so fast: the Chancellor of the university rescinded the offer, apparently because of Salaita’s aggressively vocal presence on Twitter, where he has sent out more than a few angry 140-character blasts directed at Israel’s current policies in Gaza.

The defenses of the Chancellor’s decision follow rather predictable trajectories: one, curiously adopted by Cary Nelson, former president of the AAUP and unstinting champion of academic freedom, is that Salaita’s public speech shows evidence of incivility and uncollegiality, which should be appropriate considerations in hiring and firing decisions; that they show evidence of his inability to ensure his students’ appropriate treatment in his classrooms, presumably because those with ‘pro-Israel’ views would feel threatened that they would not be treated on par with others; that Salaita would have done better to restrict his pronouncements to peer-reviewed academic journals. The second, related to the first, is that Salaita, not being protected by the First Amendment, is subject to the same regulation of his speech that all those who are acted on by private, non-governmental actors are; if you speak in public, you should expect to pay the ‘consequences’ for it.

Academic freedom, in these viewpoints, becomes bogus; there are no special freedoms that accrue to those engaged in teaching and research in universities; or if they do, they are, as Nelson suggests, only to be found in teaching and research in specifically academic forums. When faculty step out of those restricted domains, they leave their academic freedom behind. You are free to teach what you want; you are free to research what you want; you are not free to say and write what you want ‘outside.’

Some of Nelson’s concerns are addressed by my colleague Justin Steinberg, who in an email to Chancellor Wise protesting Salaita’s ‘dehiring’ wrote: :

Tweets are like (self-made) bumper stickers that one might put on one’s car; they do not reveal anything about how one comports oneself in face-to-face discourse or in the classroom. Just as it would be wholly inappropriate to rescind a job offer based on the perceived tastelessness or stridency of the bumper stickers that bedeck one’s car, it is equally inappropriate to do so on account of the tone of one’s social media posts.

As Amardeep Singh notes in his thorough examination of Salaita’s online record, Twitter is an inherently limited medium; it all too easily facilitates reductive understandings of the points made in its confines. Because it is so physically limited, it often encourages polemical excess: your tweet will soon scroll off your followers’ timelines; there are so many tweets; better to pack as much gunpowder as possible into your volley. Further, if Nelson’s guidelines to faculty hiring were to be taken seriously, with so much public speech taking place on social media, an increasing number of conversations could come in for scrutiny, increasing the likelihood that we may be indicted all too easily for incivility. The net result would be to self-censor online speech. Whatever Twitter’s faults, it offers a new medium of discourse, and it would be unfortunate if those using it were to censor themselves.

And why stop at social media? Any polemical remark made anywhere becomes grist for the mill; a conservative professor expressing his unvarnished–but overheard–opinions about the decline of the American family at a colleague’s dinner party should not be allowed into classrooms where single mothers might be taking classes. The ridiculousness of this situation should be apparent. All over the American university system, many professors with radically diverse political and ethical views teach, conduct research and supervise students; are we to now vet their speech in all and any fora so that we may judge whether they are able to provide safe spaces for their students? Or are we rather to trust them to be able to comport themselves in learning environments, which almost invariably feature diverse political opinions and leanings? As we seem to do more often than not. To set aside certain topics and not others as toxic to the touch will rely, rather unsurprisingly, on making untenable distinctions between them and others on which rather pungent opinions are expressed as a matter of course. (With probability one, Twitter’s archives may be searched to find evidence that academics have expressed such views on all manner of topics; have they all been restricted from coming into contact with various student demographics?)

Nelson is also relying on an incoherent distinction between academic and non-academic spheres of speech, with the former only present in conventional fora such as journals. Au contraire; an academic’s intellectual productions are not so easily demarcated. I consider my writing here to be an important component of my academic role; it helps me think aloud in different shape, manner, and form than the confines of monographs and journals, and thus, helps inform them as well. (Material written here has, for instance, found its way into my latest book.) I sometimes ruminate on my teaching experiences here, and sometimes think aloud about my syllabi. This blog is not a peer-reviewed space, but it no less academic for that. Social media is where a great deal of information-sharing and discussion takes place; it offers a modern form of the salon, with different avenues and modes of participation available. To suggest that this is not an academic space of learning and its dissemination is to turn a willfully blind eye to its structures and usage.

The university is supposed to provide a haven for untrammeled inquiry; to provide spaces within which teachers, researchers, and students may explore many avenues of intellectual exploration, with these not restricted by conventional niceties; we expect to have our mental spaces rearranged within its confines. Academic freedom is supposed to safeguard these modes and methods of learning and teaching. And that learning and teaching will take many different forms and modes; to insist that academic freedom will only be offered in some fora and not others is to say that academic freedom is to be restricted, and only made available in safely restricted ways. That is, it is to be rendered meaningless.

A Day in Gaol, Part Deux: Notes on Police, Precincts, and Penality

Spending a day in jail has some social scientific value for the temporarily detained; it enables a closer, albeit short-lived, look at the systems of policing and criminal justice. And because I often expend much time on this blog railing against the excesses of the New York City Police Department, it makes especial sense for me to offer a few observations on my interactions with them on Tuesday last.

First, the arrest itself. The NYPD was scrupulous about providing warnings to those that lay down on Second Avenue; we were told that we were obstructing traffic and had to clear the intersection, failing which we would be arrested. We were not immediately bum-rushed. After the warning was repeated, and those who did not want to court arrest had moved out, the police moved in. I was hauled to my feet but I was not treated roughly. The handcuffs placed on my wrists–the plastic variety–were painful, and a couple of tightening tugs made them more so. The arresting officer then placed his fingers through their central loop, making them even more painful. I told him I had no intention of absconding, as I had deliberately courted arrest; he replied he had to follow arresting procedures. Fair enough. We were then bundled into the wagon, un-seatbelted, and  thus susceptible to being thrown around, forward and backwards, when the wagon braked or took corners. The driver of the wagon thankfully opened the doors when we arrived at the precinct, and assured us he had turned on the A/C, but it hadn’t worked, thus leaving us sweltering. I believe him; he sounded sincerely apologetic for any discomfort caused to us.

I had been a little nervous about the arrest because I did not want to get shoved around or slammed to the sidewalk, but none of that occurred. There was no animosity directed at the police by the protesters and the police seemed more bemused than anything else by our doings.

Second, my booking at the precinct. The central irony of the precinct–as Corey Robin and I both noted in our conversation after we had been released–is that while it is a zone of legal enforcement, it feels, and very often is, a lawless zone. You come face to face to unblinking, resolute bureaucracy, beholden to its procedures, and their utter rigidity, all the while knowing that the police can stretch and violate them with impunity. The incarcerated are always aware that they are powerless, that the police can exert all manner of power over them. You might seek redress later, but that will not, in any way, diminish the terrifying powerlessness when a policeman got in your face, or pushed you, or otherwise abused you in any other way. There is also the depressing empirical fact that the long arm of the law rarely reaches out to accost a policeman. You are at the policeman’s mercy. Questions may be treated with a blank stare or a noncommittal reply, and very little helpful clarification about procedure is offered. It is here that you most sense a figurative forcing of you to your knees. The swagger, the cockiness, the brusqueness of the cop; these are all external manifestations of the confidence they posses in their imperviousness to any forms of pleading or redressal.

Third, my time in the holding cell. This is a continuation of the previous state; you are imprisoned; it can be a terrifying feeling.. The police are taciturn and reticent; they do not offer helpful responses to questions put to them, and requests for the lessening of personal discomfort are responded to with visible reluctance; you do not get straight answers on when you may expect to be booked and released. (One Bangladeshi cop was kind enough to tell us we would be released soon; in an effort to reach out to him, I told him my father had fought in the war of liberation for his erstwhile home; he offered me a tight smile and walked away, telling me his wife was from Mumbai.) You sense the police bound by procedures of due process but you also sense that they may at any time, at their own whim, decide not to follow them.  (The refusal–and then later, grudging agreement–to provide water despite our constant requests seemed one instance of this.) The irony of the co-existence of the arbitrary with the rules of law is reinforced. You draw companionship from your fellow prisoners if you can. I was lucky to be with my partners in civil disobedience; their companionship sustains you; it is far more uncomfortable to be with those who are strangers. (Note: at one point late in the afternoon, a middle-aged Cuban gentleman was brought into our cell; he had been arrested for panhandling. He claimed he had merely been asking a friend for some money. His English was not as good as his Spanish, and he seemed a little discombobulated. The police had a field day with him, cracking several jokes at his expense as he was led out and in and otherwise subjected to other procedures. I presume the police code of conduct includes no strictures on gratuitous mocking of the incarcerated.)

My imprisonment was exceedingly brief; I only suffered minimal discomfort (one of my fingers is still slightly numb). I am privileged and lucky. Many others who deal with the police and the penal system are not.