Fall 2015 Final Edition

Vol. XV No. 2

Fall 2015

The Pi Sigma Alpha Undergraduate Journal of Politics (ISSN 1556-2034) is published bi-annually by the Nu Omega Chapter of Pi Sigma Alpha, Oakland University, Department of Political Science, 418 Varner Hall, Rochester, MI 48309-4488. The journal is funded by Pi Sigma Alpha, the National Political Science Honor Society, 1527 New Hampshire Avenue, NW, Washington, DC 20036, http://www.pisigmaalpha.org.

The Pi Sigma Alpha Undergraduate Journal of Politics was founded in the spring of 2001 by Delta Omega Chapter of Pi Sigma Alpha at Purdue University, under the name The American Undergraduate Journal of Politics and Government. With the sponsorship of Pi Sigma Alpha, the National Political Science Honor Society, the name of the Journal was changed to The Pi Sigma Alpha Undergraduate Journal of Politics as of the Fall 2004 edition.

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COPYRIGHT Š 2015 PI SIGMA ALPHA. ALL RIGHTS RESERVED

The Pi Sigma Alpha Undergraduate Journal of Politics Fall 2015 Volume XV

Thirtieth Edition

Alexa James Mikaela Strech Molly Knappenberger Dr. Terri Towner

Number 2

Outreach Editor Content Editor Technology Editor Faculty Advisor

Editorial Board

Tanir-Vefa Avci Natalia Boyko Nate Catey Marissa Coloske Adam George Megan Hoberg Kalsoom Hussain Alexa James Jessica Jones

Molly Knappenberger Chantell Kolodynski Kendall Kosikowski Daniel Latowski Kyle Lesher Luke Moloney Amanda Stevens Mikaela Strech

Advisory Board

Dr. Robert Alexander Dr. Nicole Asmussen Dr. Cristian Cantir Dr. Rosalee Clawson Dr. Matthew Dabros Dr. David Dulio Dr. Natasha Duncan Dr. Alan Epstein Dr. Megan Hershey Dr. Jennifer Hopper Dr. Dwaine Jengelley Dr. John Klemanski

Dr. Paulette Kurzer Dr. Laura Landolt Dr. Daniel O’Neill Dr. D’Andra Orey Dr. Diana Orces Dr. Christine Pappas Dr. Jo Reger Dr. Robert Spitzer Dr. Harry “Neil” Strine IV Dr. Peter Trumbore Dr. Byungwon Woo

Editor’s Preface to the Fall Edition The Pi Sigma Alpha Journal of Undergraduate Politics would first and foremost like to acknowledge all those individuals and institutions which make the publication of this Journal possible semester after semester and year after year. The Journal has continued to grow in terms of submissions, quality, and prestige. Admissions to the Fall 2015 edition were both vast in number and constituted a diverse array of topics. We greatly appreciate all those who have submitted their work to the Journal in hopes of being published. The articles published herein exemplify a high quality sample of the types of undergraduate research being conducted across the country.

Although the publication is a completely student-run endeavor, the efforts of the student Editorial Board are guided and supported by a number of individuals and institutions which we would like to thank. First, we would like to thank the Pi Sigma Alpha Executive Council and Executive Committee whose vision and financial support has maintained the quality and direction of the journal. Second, we would like to thank the Faculty Advisory board: the thorough and constructive reviews provided by the members of this board have ensured the articles published herein meet a consistent standard of quality. Finally, we extend tremendous thanks to Editorial Board Faculty Advisor Terri Towner, who has clocked countless hours to ensure the integrity of the journal continues to exceed the standards of excellence set by the editors of its previous editions.

The Editorial Board at Oakland University is proud to present the Fall Edition which contains a well-rounded set of articles with varied methodological approaches and topical matter. The publishing process for the Fall Edition followed a relatively smooth path from submission to publication, and the Nu Omega Chapter and Oakland University wish the readers of this edition a similarly enjoyable time.

Best, The Editors

Submission of Manuscripts The Journal accepts manuscripts from undergraduates of any class and major.

Members of Pi Sigma Alpha are especially encouraged to enter their work. We strive to publish papers of the highest quality in all areas of political science. Generally, selected manuscripts have been well-written works with a fully developed thesis and strong argumentation stemming from original analysis. Authors may be asked to revise their work before being accepted for publication.

Submission deadlines are October 1st for the Fall edition and February 1st for the Spring edition. Manuscripts are accepted on a rolling basis; therefore early submissions are strongly encouraged.

To submit your work please email psajournalou@gmail.com with an attached Word document of the manuscript. Please include your name, university and contact details (mailing address, email address, and phone number). If possible, include how you heard about the Journal.

Submitted manuscripts must include a short abstract (approximately 150 words), citations and references that follow the APSA Style Manual for Political Science.

Please do not exceed the maximum page length of 35 double-spaced pages.

The Journal is a student-run enterprise with editors and an Editorial Board that are undergraduate students and Pi Sigma Alpha members at Oakland University.

The Editorial Board relies heavily on the help of our Advisory Board consisting of political science faculty from across the nation, including members of the Pi Sigma Alpha Executive Council. Due to the time committed to the manuscript review process, we would like to remind students to submit to only one journal at a time.

Please direct any questions about submissions or the Journal’s upcoming editions to our editors at psajournalou@gmail.com.

Table of Contents A False Sense of Security: Is Guantanamo Exceptional?

7

Redemption of Shawshank? Putting Prison Rape on the Legislative Agenda

24

The Women’s Rights Movement in Afghanistan: The Absence of Scholarship and the Challenges of Practice

38

Capacity and Necessity: The Appropriateness of Judicial Policymaking in Affirmative Action

58

This is a Man’s World: The Standing of Women the State

Bonnie Daniel, Southwestern University

77

Pauline Syrnik, Hunter College

Brandon L. Bolte, Truman State University

Maryam Laly, St. Lawrence University

Dylan Saul, Macalester College

The Security of

7

A False Sense of Security: Is Guantanamo Exceptional?

Pauline Syrnik Hunter College Guantanamo Bay has been described as an exceptional space, because of its geopolitical location, abusive tactics, and the status of prisoners detained within it. There has been a backlash causing a reevaluation of the prison because many have argued that it violates America’s domestic and international laws. I argue against the prevailing belief that Guantanamo is exceptional, offering instead that it parallels administrative punitive powers in the domestic prison sphere, that are also legitimized by courts through a preventive rationale. Although courts have attempted to curtail the abuses occurring within Guantanamo amidst criticism, individuals also need to be concerned about the practices occurring in American maximumsecurity prisons. The location of the prisoners should not matter because, in the end, they are still human beings and should not be dehumanized by administrators.

Introduction

America has been operating a prison camp

outside of its borders, and arguably against its legal tradition, in order to detain prisoners post-9/11.

Guantanamo Bay is an American naval base and prison located on the coast of Cuba. It has been described as a space of lawlessness and exception, where sovereign power has become unhinged (Gregory 2006, 405). The base was acquired in 1903 through the Platt Amendment, which was inserted into the Cuban Constitution when Cuba was occupied by American troops, and America would only remove its troops if the amendment was inserted (Gregory 2006, 411). This amendment, and later lease agreement, would create the unusual geopolitical territory that constitutes Guantanamo. Its unique geographical location has enabled it to remain an anomaly because it allows the U.S. to operate a prison physically outside of its borders, in which coercive tactics, indefinite detention, and many fundamental American rights have been dissolved. According to the George W.

Bush administration, international law also does not apply to the space because the statuses of the prisoners contained within it are considered exceptional, a circumstance that will be discussed later (Gregory 2006, 408).

Exceptional spaces and laws arise during times of emergency, and they are often explained as temporary and extralegal measures that aim to fix a particular problem. However, contemporary analysis suggests that emergencies are not temporary, and that this type of explanation overlooks the types of governmentality that emergencies use as a way of managing a population (Feldman 2010, 137). The naval base of Guantanamo has been conceptualized as a temporary space that has grown out of the exceptional war on terror. This has caused the space to be geopolitically exceptional since it is ruled through administrative sovereignty, and legitimized by legal grey and black holes. The lack of a legal sovereignty present within Guantanamo originates from the U.S. claiming that Cuba is the sovereign state over the territory in the Platt Amendment, but Cuba

8 cannot exercise any real sovereignty over the area. impacted certain practices within Guantanamo, such

described as a “space of exception” but is instead linked to the administrative punitive powers that have grown out of the domestic prison sphere.

as preventing American rights from being granted to

The Exceptionality of Guantanamo

The history and means of acquiring the territory has

prisoners, due to the fact that Guantanamo fell outside of the American legal jurisdiction. The U.S. can then claim a legal inability to extend its rights to prisoners while concurrently using coercive tactics on them.

Since Guantanamo lacks an accountable sovereign to domestic or international law, it has been deemed a space of lawlessness (Gregory 2006, 405).

I am arguing against the prevailing belief that

Guantanamo and its practices are exceptional. Its geopolitical location has brought to light many of the abuses occurring within it, but its practices are similar to those implemented within United States’ maximumsecurity prisons. These domestic prisons have internal mechanisms of ordering the populations contained within them through the use of solitary confinement and administrative detention. These practices are justified through a rationale of preventing disorder rather than disciplining inmates. Administrators are the sole sovereigns making these decisions, and there is no judicial check over their categorization.

Prisoners cannot challenge their placement in solitary confinement, which many have described as a form of psychological torture, and the courts have legitimized the use of these practices. They have done this by legitimizing the use of administrators as the ultimate decision makers and allowing legal grey holes to prevail through court decisions, thereby making these areas of confinements legitimate yet exceptional spaces within American prisons. Guantanamo’s administrative practices parallel those enacted within maximum-security prisons, and they are also justified through a preventive logic and legitimized through legal grey holes. Therefore, Guantanamo is not best

Many theorists have considered Guantanamo to be an unquestionably exceptional space, because its practices defy the American legal norm (Gregory 2006, 405). Guantanamo’s geopolitical location has allowed it to operate outside of American protection and still be legitimized through domestic legal grey holes. Nevertheless, the administrative practices deployed within the space parallel domestic practices, specifically those employed within maximum-security prison.

Still, it seems intuitive that Guantanamo would be governed by international law, while domestic prisons are not. Guantanamo would then violate international law, specifically Article Three of the Geneva Conventions, which requires humane treatment of prisoners even during unconventional wartime (Gregory 2006, 420). The Bush administration tried to legitimize the space and its practices by offering legal explanations for why Guantanamo does not violate these international laws, and has argued that the practices within Guantanamo cannot be defined as torture. This is shown through the legal justification offered by John Yoo, who was the Defense Assistant U.S. Attorney General in the Office of Legal Counsel and infamously wrote the “torture memos,” a series of justifications that granted the U.S. C.I.A jurisdiction to detain and interrogate prisoners with torturous methods (Hazuka 2014 ). Jay S. Bybee, head of the Office Legal Counsel of the U.S. Department of Justice, issued further “enhanced” methods of interrogation. He banned the use of mental and physical torture, defining torture as any “serious physical injury, such as organ failure, impairment

Pi Sigma Alpha Undergraduate Journal of Politics

9

of bodily function or even death” (Office of Legal Counsel 2002, 1). This type of justification actually allows for a broad range of torture to be used within the space, as long as they do not kill or cause organ failure to an individual (Office of Legal Counsel 2002, 1). These “lesser” forms of torture were justified under the exceptional circumstances of the war on terror, so that interrogators could gain intelligence.

These types of exceptional practices do not stop at torture, as the Bush administration has also created the ill-defined category of “unlawful combatants” and “enemy combatants” to allow for the indefinite

ultimate sovereignty and that American domestic laws

detention of individuals categorized as such, thus circumventing intentional law (Huq 2006, 128). I claim that these two instances are examples of loophole lawyering by the U.S., where the Bush administration was able to override international law, by classifying individuals within a specific category or narrowly defined concept that was not offered protections under the Geneva Conventions. These actions were viewed as legal, but dubious in the international community. I believe that this is an example of how the Bush administration legally circumvented granting international protections to the prisoners detained within Guantanamo, but how has the space been theoretically justified as exceptional?

between law, geopolitical location, and sovereignty.

do not apply there (Kaplan 2005, 834). This allows the space to become exceptional because there is no sole nation that can be blamed for the lack of laws in the space, as the space is legally at the intersection of two nations’ laws. It would be logically to believe that international law would be the appropriate authority over how to remedy this lack of ultimate sovereignty or accountability but as mentioned earlier the Bush administration had already used loophole lawyering tactics to prevent international regulations.

Schmitt (1950) analyzes the relationship

He believes that land appropriation is the basis for all law created since the imperial age (Schmitt 1950, 48). He defines the meaning of the word nomos as the relationship between order and orientation and the distribution of land. He equates nomos with the age of colonization because this time period was defined as the era of land redistribution. However, the European territories were not divvied up because there had already been recognition of equal sovereignty among the Europeans, as created in the Peace of Westphalia.

Europeans believed that all newly discovered territories were open and free space, and colonized them, ignoring the history and people of the land

Space Appropriation

(Schmitt 1950, 87). Indirect colonialism was also

Location and sovereignty play a prominent role in Guantanamo’s atypical structure. Guantanamo’s location is exceptional because it prevents any sovereign from claiming that they have direct authority over it. The lease agreement gave Cuba ultimate sovereignty but allowed the U.S. to have complete jurisdiction and control over the area (Johns 2005, 616). Yet, the U.S. has been supplying prisoners to the territory and has been using it for its own purposes, while making the legal argument that Cuba retains

utilized though spheres of influence allowing a state to be sovereign over a “new” territory without physically ruling them. Schmitt (1950) further describes nomos as when a historical policy is made and the law is legitimized, giving meaning to its legality. This occurs by provoking law to become enforced in a situation, and therefore, becoming actualized. Colonial powers using the land and its people for their own ends would be considered an actualization of this new land appropriation. Guantanamo is another example of

10

Syrnik

this actualization because it was obtained during the colonial period, and the usage of the space as a prison makes America’s sovereignty meaningful.

During the colonial time period, the concept

of a “just war” was also beginning to appear, and international law started recognizing it as any legitimate war between states with equal sovereigns (Schmitt 1950, 121). Schmitt (1950) believes that the reason these wars were considered “just” was because they preserved the “form” or the paradigm of statehood. A state must have a legally recognized enemy to go to war with it, thereby abiding to the rules of war. International law, however, has been unclear about what is to happen when a sovereign state goes to war with a non-state actor. This is applicable to the situation in Guantanamo because the U.S. went to war with terrorists, who are not part of any state and are therefore exceptional actors. Instead of partaking in a traditional war, a state is allowed to take on a police function to correct belligerent actions, which is what I claim that the U.S. is doing. Schmitt (1950, 207) believes that there is an inherent state bias within international law and that it does not adequately address these exceptional circumstances but instead leaves states ill-equipped to handle exceptions or allows them too much power. Guantanamo can be seen as an example of international law failing to protect the rights of stateless individual who have been captured by a police state.

Aradua (2007, 489) builds on Schmitt’s (1950)

ideas, and agrees that law no longer depends on the sovereign’s decision but instead upon the appropriation of space. Aradua (2007) argues that law is no longer universal, but is adapted to situations. This is not an intuitive conclusion because international law is supposed to be universal. Aradua (2007) extends this claim by asserting that Guantanamo is actually a

symptom of this larger transformation of the law. For Aradua (2007, 492), nomos is when the political and social order becomes spatially visible and where the political becomes subordinate to the spatial. Therefore, politics do not have to adhere to international law or traditional warfare due to the spatial division overtaking the political. An example would be that laws have to be created because of the exceptional spatial nature of Guantanamo, and therefore, the spatial is dictating the political. Aradua (2007, 496) views are also reinforced by the current war’s nomenclature, titled the “war on terror,” because it is consequently no longer consider a typical state war.

Law and politics then conform to this exceptional situation, and the exceptional geopolitical location of Guantanamo allows for laws to be created that cannot be easily contested.

The exceptional geopolitical nature of the war can be extended to the type of enemy the U.S. is fighting. Huskey (2011) discusses the nature of the war against Al-Qaeda, and the type of non-state actors, or suspected terrorists that America is detaining.

Similar to the war on terror, the individuals that Guantanamo is detaining lack temporal or geopolitical boundaries due their statelessness (Huskey 2011, 201).

Yet, Guantanamo’s detainees suffer the brunt of war without ever seeing the battlefield, and consequently become detained indefinitely. The war on terror is not about fighting a specific nation, culture, or ideology, but is about fighting against the method of terrorism. This allows for greater sovereign flexibility in attempting to combat the unknown enemy, because they can come from any state. The rationale for the lack of regulation of this war stems from the enemy not wearing a uniform, and camouflaging themselves as civilians. Therefore, the state needs greater leniency so that they can be properly equipped to fight against their exceptional enemy.

A False Sense of Security

11

I argue that the lack of a true state sovereign in Guantanamo has allowed for a space where there is an abyss of legitimate domestic and international law. This stems from a state bias, contained in international law, where individuals are only offered protection in spaces with a legally recognized sovereign. This bias within international law can be further exploited because there is an asymmetric relationship between the U.S. and other sovereign and non-sovereign powers.

Suspected terrorists become extremely vulnerable targets for state-sanctioned violence because foreign countries have difficulties challenging the power of

Administrative Power

the U.S. to detain them. Other countries will also oppose aiding individuals suspected of terrorism because it will reflect badly on their international image. This leads to a lack of protections offered to these individuals by any state laws, American or international, and further enhances the asymmetrical power that the U.S. exerts over prisoners.

I do believe that the U.S. has become the unofficial sovereign of Guantanamo through their implementation of policies and creation of a prison.

Due to its geopolitical location, the U.S. has been able to circumvent international law governing Guantanamo because the U.S. is not the legally recognized sovereign who can be held accountable over the territory, and the statelessness of terrorists allows America to act as a policing force. Domestically, American courts have tried to curtail the abusive practices occurring within Guantanamo, which has retracted from Guantanamo’s geopolitical exceptionality. Nevertheless, it has been argued that the sovereign power within the prison is exceptional, but I disagree (Aradua 2007, 409). I believe that its structure is similar to the structure present within maximum-security prisons, as shown with its usage of internal administrative boards.

substantial questions of morality and justice (Huq 2007, 742). Law does not have to be moral to operate, and many times it can operate as a repressive state force. Once bureaucrats discover areas where they are free from judicial oversight, they are given the ability to create internal rules that may deviate from morality.

This type of bureaucratic apparatus does not question rules and regulations about their moral qualities, but instead enforces the rules and regulates the prison population. This administrative state then benefits from a form of hyperlegality, where there are many statuary provisions, categorizations, administrative reviews and regulations that govern it. Therefore, Guantanamo is not a traditional example of what a “state of exception” is, because it is not a space devoid of law. Instead, it is a space of excess regulation.

Guantanamo can be described as a preventive detention camp, and this status allows it to retain a major bureaucratic element, while avoiding heavy regulation. This type of conclusion can be drawn from the legal discourses regarding disciplinary and preventative detention. Disciplinary institutions are described as punishing individuals for their transgressions, as is the case with American prisons.

Preventive institutions do not require evidence

Guantanamo’s geopolitical location showcases its exceptionality because it is a novelty among international law and circumstances. The unconventionality of its location does not extend to the practices that are employed within it. Administrative powers govern the space, and the growth of an administration structure has been used to describe the origin of the sovereign authority within Guantanamo.

It can also explain the shifted focus regarding the internal mechanisms within the rule of law to focus on questions of jurisdictional authority rather than

12 of wrongdoing for detention to occur, because these individuals may present a future danger and consequently need to be contained. Preventive detention allows an individual to be indefinitely detained without being charged with a crime or being prosecuted (Huskey 2011, 190). Courts regulate disciplinary institutions more heavily, while they usually defer regulating preventive institutions by granting authority to administrative agencies, which directly deal with the prison population. This containment and detention of individuals, in which they are stripped of their legal rights, is justified

varying administrative offices that were created for

through a preventive rhetoric rather than a punitive one. Lobel (2003, 406) draws parallels between super maximum-security prisons and Guantanamo, for prisoners are placed into solitary confinement by using administrative detention rhetoric rather than disciplinary punishment in these prisons. This will be discussed later in further detail, but it is critical to remember that administrative detention justified through a preventive rhetoric is not exceptional.

In an administrative state, there is no singular or united sovereign. Instead, it is a bureaucratic mechanism that disposes and orders populations by producing and reproducing subjects (Butler 2006, 52).

Administrative agencies do have the capacity to makes laws, or regulations, but they are not controlled by judicial oversight. Butler (2006) makes the claim that the state is no longer under the rule of law, but rather it is only tactically and partially extending it. Then, the state relies on administrative powers to make any extensive decisions. This is shown within Guantanamo because neither international nor domestic laws hold as much legitimacy as administrative regulations. The space is not ruled by law but rather by discretionary decisions, and the administrative bureaucracies have the final say over if someone will be tried and detained as well as the length of their detainment. There are

be found throughout history and currently within

and are still operating within Guantanamo, such as the Office of Detainee Affairs, Military Commissions, Administrative Review Board, and the Combatant Status Review Board (Johns 2005, 618). These types of administrative institutions are trying to codify and order the prisoners within Guantanamo, by extending pre-determined policies into the space.

These administrative procedures call into question Guantanamo’s exceptionalism, for even though its spatial location is distinctive, the structure that regulates and creates the policies for the prison can maximum-security prisons.

The prison system within Guantanamo is

justified by a preventive logic, meaning that prisoners are detained there to prevent future disorder and threats against America’s national security (Lobel 2003, 406). Individuals do not have to commit a crime, or be near a battlefield to be identified as a future threat and therefore, indefinitely detained. This allows administrators to detain and categorize individuals once they are admitted into Guantanamo, and they do not have to adhere to a domestic court structure to do so. These types of quasi-legal procedures and boards are created and legitimized through American courts legal rulings. A similar preventive logic is used within maximum-security prisons, where prisoners are removed from the general prison population because they are a possible threat, but there does not need to be evidence of any wrong doing.

Legal Grey or Black Holes Legal grey and black holes have been described by individuals like Schmitt (1950) as being present within liberal law to make it more flexible and responsive to emergency circumstances. The law has to be flexible and secondary to sovereign decisions because the

Pi Sigma Alpha Undergraduate Journal of Politics circumstances of an emergency cannot be foreseen.

These holes allow for administrative procedures to operate without judicial involvement because administrators have been seen as the experts and authority makers within public institutions (Criddle 2010, 1). These types of zones are also caused by an adherence to “rule by law,” rather than a “rule of law.”

Rule by law is a “thin” view of law, in which law lacks any substantial moral content, and thereby allowing for these types of holes. Rule of law is a “thicker” view that requires an adherence to a broader sense or underlying principles of legality (Posner and Vermeule 2011, 89).

Rule by law is similar to a contract because individuals just follow the written rules and consequently are lawabiding. This allows for loopholes to emerge because there will be ways to circumvent the written law, defying the spirit of the law. In contrast, rule of law is when individuals follow the spirit of the law, and they are lawful because they believe in its underlying principles.

Posner and Vermeule (2011) argue that

these loopholes are inevitable because there needs to be a prospective aspect of law, which can have its parameters changed according to circumstances. In this way, legal holes are essential to maintaining a government or policy during unusual or exceptional circumstances. Posner and Vermeule (2011) disagree with Dyzenhaus (2010) who believes that black holes are better than grey holes, because black holes are a blunt breaking of the rules whereas grey holes operate under a facade of maintaining the law and legality (Dyzenhaus 2010, 2018). Posner and Vermeule (2011, 90) prefer grey holes because both grey and black holes are inevitable and necessary in order for law to be flexible but at least these grey holes allow for certain principals to be upheld. If these grey holes become a problem that requires fixing, judicial authorities

13

can correct them without defying the underlying principles. Law then becomes subservient to the people, rather than people being subservient to the law.

For example, in Hamdi v. Rumsfeld (2004), in which independent tribunals were set up instead of courts to hear Guantanamo detainee’s cases, the justices ruled it was better to have some sort of regulation rather than none. When these independent tribunals were abusing their power, the Supreme Court justices in the Boumediene v. Bush (2008) case, sought to curtail the powers and illegitimate practices of the independent tribunals.

There are certain limitations placed on executive power through law and regulation to make sure abuses do not occur, but Posner and Vermeule (2011) believe these need to be flexible as well. The Administrative Procedure Act (APA) is a statute that governs federal administrative agencies and how they propose and establish regulations that is filled with loopholes (Criddle 2010, 1273). Posner and Vermeule (2011) believe that the APA is incorrectly viewed as successfully limiting administrative practices, because it actually has flexible parameters that allows for government discretion. Military agencies and tribunals can be expressly excluded from these regulations, or can fall outside of the definition of an administrative agency, and consequently are not governed by these rules. Even when a military function falls under the guidelines for rule making and adjudication, there can be no application of procedural requirements under the APA (Posner and Vermeule 2011, 95). In this way, the agencies within Guantanamo may not be held accountable to the guidelines and procedures set by the APA. Their agencies may be black holes within administrative law, and individuals may mistakenly believe they are regulated. These agencies also lack a direct channel of accountability to the President and are insulated from politics, even though they can

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be criticized as unelected bureaucrats. Posner and

was the case when a prisoner was refused the right to

Vermeule (2011, 106) then make the unconventional

confer with a lawyer after a court ordered that he must

claim that it is not emergency powers spilling over

receive one (see Fletcher 2004, 124). This would not

into the legal norm, but rather ordinary law that is

be acceptable in a military court, but since these are

extended into extraordinary times because of an

administrative tribunals they are not so extensively

encroaching administrative state. This means that

monitored. Even when minor protections are offered

during times of emergencies ordinary procedures,

to prisoners, courts will defer enforcement because

such as administrative practices, will be used.

they consider the administrators to be the experts

Therefore, new policies will not necessarily be

within Guantanamo.

created, but conventional ones will be applied and

enforced. In this way, legal grey and black holes

practices within Guantanamo are a legal anomaly,

that originate in domestic laws are spilling into

but courts are legitimizing the practices exercised

spaces like Guantanamo. The physical features and

against them. These courts have allowed the creation

design of Guantanamo’s camps and administrative

of neutral review boards, which led to the creation

procedures were modeled after maximum-security

of varying military tribunals. Courts then legalize

prisons; showing how domestic policies can seep into

many of the constraints placed on the prisoners;

exceptional spaces (Human Rights Watch 2008).

for example, these trials can be conducted in secret,

normally without consul and contrary to military law,

Other theorists, particularly Johns (2005,

Paye (2005) argues that the prisoners and

621), have argued that Guantanamo is a black hole

without civil appeal (Paye 2005). The federal courts

because there is no way out except through the good

have expressed that the prisoner’s confinement is not

grace of the military. Johns (2005, 614) believes

illegal, but that their lack of a trial is illegal. This is why

that it is a space where liberal proceduralism and

ad hoc administrative courts were created. This type of

law operates in excess, which then allows for this

ruling creates rather than destroys grey holes because

unaccountability and unregulated administrative space

independent tribunals are not held up to the same

by other branches. This hyperlegality then creates a

standard as other courts or military tribunals in the

black hole of unaccountability due to the amount of

U.S.

excessive regulations that may contradict with one

another. Courts and administrators are creating an

international law to support their practices within

excessive number of agencies, such as independent

Guantanamo, such as the state bias that allows them

tribunals, which are administrative structures that fall

to circumvent a variety of statutes. America has

outside of contemporary military court structures and

not abided by human rights conventions that it has

regulations. Yet, independent tribunals are justified

signed, such as the Convention Against Torture and

and legitimized as being part of the military court

Other Cruel, Inhuman or Degrading Treatment and

structure even if they may go against the regulations

Punishment (Paye 2005). The Bush administration also

that govern military courts. In the past, there have

used loophole lawyering to get around international

also been examples of these tribunals in Guantanamo

laws like the Geneva Conventions (Paye 2005). These

failing to execute certain federal judicial orders, such

types of tactics expose the regularity of grey holes, and

America has also used grey holes within

A False Sense of Security how they can be utilized to the advantage of the U.S. The geographic location and administrative practices can also create legal and black holes that then influence internal policy or administration.

Practices Deployed in Guantanamo

The colonial history of Guantanamo has placed it outside the judicial order, but it is not simply external to it (Aradua 2007, 5). The Bush administration and the U.S. Supreme Court have tried to place the base within the context of domestic law through various court cases. Below, I discuss the way in which courts can create or tighten legal grey holes.

Prisoners were originally allowed to be indefinitely detained without any right to habeas corpus. In Hamdi v. Rumsfeld (2004) the Supreme Court considers the question of whether holding an American citizen indefinitely without due process, because of his or her designation as an enemy combatant, is constitutional. The Bush administration argued that because detainees were categorized as enemy combatants they were not offered prisonerof-war status under the Geneva Conventions. In addition, detainees could not be given a right to due process, because Guantanamo is not under American jurisdiction. The Supreme Court ruled that the executive did have the power to detain enemy combatants, but that the detainees must have the right for their case to be heard by an independent tribunal (Dyzenhaus 2010, 33). This created the legal grey hole where domestic courts did not have to be the entity to hear the case, but instead independent tribunals were created and operated by administrators and military personnel.

In Rasul v. Bush (2004), the Supreme Court examined the issue of foreign prisoners and their rights. The Court ruled that foreign prisoners who

15

are not citizens of the U.S. do have access to federal courts and therefore, are allowed to bring a petition of habeas corpus to challenge their detention within Guantanamo. The majority opinion stated that they had this right because America exercised complete jurisdiction and control over the area. Hence, the matter regarding who is the “ultimate sovereign� and the issue of Cuba becomes irrelevant. Yet, the Court did not say that this right was given by the U.S. Constitution, but instead by a federal statute (Kaplan 2005, 842). Therefore, it is not an intrinsic right of an individual, but rather a lesser statue that has granted this privilege. This Court ruling extended the scope of which individuals would be allowed to challenge their detention, but it did not go far enough to justify why they were granted this right.

The Supreme Court then sought to restrict

the power given to independent tribunals within Hamdan v. Rumsfeld (2006). The Court ruled that the usage of military tribunals was unconstitutional because they did not comply with the rules of U. S. military law or codes, domestic law, or international laws, such as Article Three of the Geneva Conventions.

The Military Commissions Act of 2006, however, allowed for the continued use of military tribunals, with restrictions placed on their interrogation and prosecution methods. This Act was a response to the possibility that the Court would rule in their favor and extend rights to unlawful or enemy combatants. These new military tribunals were set up, but they were only slightly different from the ones that were struck down in Hamdan v. Rumsfeld (2006). These new tribunals still allowed defendants to be convicted by evidence that they could not see, or rebut. Hearsay and forced confessions through the use of torture would also be allowed as long as the information was deemed reliable by administrators (Associated Press 2007).

16

The Supreme Court later deepened its critique of the Military Commissions Act of 2006, deeming it unconstitutional in Boumediene v. Bush (2008). In the latter case, it was ruled that constitutional habeas corpus protections did extend to noncitizens detained at Guantanamo and that the procedures for contesting their detentions were an inadequate substitution for habeas corpus (Dyzenhaus 2010, 32-33). Therefore, defendants do have the right to federal courts, and that this right could not be restricted. This granted detainees the right to a trial, but it did not mean that they would have to be released if they were considered no threat to the U.S.

The neutral review boards created within Guantanamo then became independent tribunals, such as the Combatant Status Review Tribunals and Administrative Review Boards (Johns 2005, 618).

Combatant Status Review Tribunals allow prisoners to contest their designated categorization as an enemy combatant to administrators only once. If a detainee is designated as an enemy combatant, they will have a hearing with the Administrative Review Boards, who hold annual reviews of enemy combatants. The Combatant Status Review Boards are comprised of three “neutral� officials, and at least one has to be a military judge, and the prisoner is denied access to a lawyer (Paye 2005).

The Administrative Review Board only gives recommendations to the Secretary of the Navy, who makes the final decision. The Secretary of the Navy is a position appointed by the President, and confirmed by a majority vote in the Senate. To be eligible for the Secretary of the Navy, one must be a civilian who has not served in the military within the last five years (Legal Information Institute 2015). This military history and appointment by the President may be seen as problematic because the appointee may have

biases towards the executive branch and the military.

However, the President still has the final say over who will be released from Guantanamo and relies on internal administrators for any recommendations.

Secretary of the Navy, Gordon England, headed the Administrative Review Board from 2001 to 2006. During a press conference, Gordon England discussed how he makes decisions regarding the release, transfer, or continued detention for each detainee, while also overseeing and organizing the process (Johns 2005, 630). Many prisoners do not have their enemy combatants status overturned in the Combatant Status Review Tribunals, so their last chance of being released from Guantanamo is through the Secretary of the Navy. In general, the final authority lies with an administrator who does not hear the prisoner’s case, but only the recommendations of his board. These types of courts, with appointed and non-elected presiding officers, undermine liberal law that in principal seeks to prevent such a localization of power in administrative hands. The legal grey holes created through court rulings have allowed for these administrators to order the population within the prison, and continue to imprison possible threats, without any oversight.

Both of these boards include administrators from Guantanamo and at least one military judge.

Prisoners were being denied liberal rights, such as access to a lawyer, because administrators believed that civil lawyers were privileges that these prisoners did not have a right to (Paye 1950). These review boards also reverse the typical burden of proof because prisoners have to prove their innocence, rather than the prosecutor proving their guilt. The information that the prosecutor presents as evidence against the prisoner is also deemed as true without any fact checking or cross examination, and confessions

Pi Sigma Alpha Undergraduate Journal of Politics obtained through coercive interrogations are allowed (Paye 1950). Although the Supreme Court has ruled that prisoners have a right to contest their detentions, they have also legitimized these types of unjust practices and indefinite detention as long as there is a quasi-court that “reviews” the prisoners’ cases.

Prisoners within Guantanamo can also offer additional information to administrators during their annual reviews and, depending on the value of the information, can be moved to different divisions within the camps. The different parts of the camp are labeled as one through seven, and the level of comfort and amenities differ within each division.

Most detainees are kept in Camp Three, Five, Six and Seven, in restrictive and isolated quarters (Human Rights Watch 2008). Camp Five, which is used for non-compliant detainees, is modeled after Indiana’s maximum-security prisons (Human Rights Watch 2008). While Camp Five through Camp Seven are the most controversial because the living conditions do not meet the minimum protections offered, and the subjective authority of the administrators places the prisoners who are viewed as the highest threats, or least compliant, here (Human Rights Watch 2008).

The prison design and these administrative practices deployed in Guantanamo are not exceptional.

Administrators become sovereign entities in both Guantanamo and maximum-security prisons when the courts justify their role as such. Courts also create legal grey holes using preventive rather than disciplinary rhetoric in both cases.

Comparisons to Prison

Guantanamo’s practices seem quite exceptional, and American courts have been trying to fit these practices within a legal framework as if they were unique. Yet, the practices deployed in Guantanamo

17

are not as anomalous or atypical as most individuals believe. Maximum-security prisons, similarly to Guantanamo, allow administrators to order the population within them based on a preventive logic. Although maximum-security prisons are still disciplinary institutions, as prisoners have a right to habeas corpus and were convicted of a crime, there is a different preventive mechanism operating within the prisons. Preventive logic is used in prisons when individuals can be categorized as a possible threat by administrators and then placed into administrative detention, even if they did nothing wrong. Prisoners have therefore become “risks to be managed, resistances to be eliminated, and organisms to be fed, maintained and even prevented from taking their own lives” (Guenther 2013, xvi). These prisoners are given the bare essentials of life, and administrators are allowed to micromanage them as they see fit. Prisoners within Guantanamo experience a similar situation because they are imprisoned due to their status as a possible threat to America’s national security, and are kept minimally alive, while being abused by administrators who want to gain information (Paye 2005). The treatment of prisoners is not the only similarity between Guantanamo and maximum security prisons but the practices deployed by the administrators as well parallel each other: they order the population, have sole administrative oversight, and have had practices that could be viewed as torture – such as solitary confinement within prisons – that have been legitimized by American courts (Zehr 2014).

Gang members are the typical example of the types of individuals routinely placed into administrative detention or solitary confinement within maximum-security prisons (Lobel 2003, 399).

There is no due process involved in their confinement, and a prisoner does not have any judicial means of

18

Syrnik

contesting their categorization. The arbitrariness of these placements can be seen within places, such as in the state of Texas during the 1990s, where having a Hispanic surname or originating from San Antonio would automatically place an individual into administrative isolation (Lobel 2003, 399). This type of racialization occurs within Guantanamo as well, because the detainees are primarily individuals of the Muslim culture, which is the stereotypical description of a terrorist (Paye 2005). Guantanamo’s detainees also have no right to due process regarding their internal placement within the prison, which can drastically impact their quality of life.

The conditions of these camps are similar because the maximum security prisons use small cells, in which prisoners are locked in for twenty-three hours a day without fresh air, and are stripped searched, shackled, have extremely limited privileges and are unable to communicate with anyone else (Lobel 2003, 398). They have no physical contact with others, and many have argued that this is a form of psychological torture and leads to mental illness (Human Rights Watch 2008). Certain maximum-security prisons even have inmates communicate via intercom with prison officials, so prisoner’s interactions are as limited as they can be with other individuals (Guenther 2013, 163).

Guantanamo’s prisoners within higher camps have the same type of policies used against them. They often are placed in solitary confinement, are moved hourly so they are constantly disoriented, kept in cages and are force-fed when they choose not to eat (Kirchner 2002, 7).

The underlying justification for Guantanamo and administrative detention within maximumsecurity prisons are similar because both are preventive rather than disciplinary measures. Secretary of the Navy, Gordon England, once said during a

press release “the basis of detaining captured enemy combatants is not to punish, but rather to prevent them from continuing to fight against the United States and its coalition partners in the ongoing global war on terrorism” (U.S. Department of State 2005). I argue that the latter statement contains the justification for Guantanamo. The preventive aspect relaxes judicial oversight, and allows for administrators to create bureaucratic guidelines about how to operate the camp. Maximum-security camps also place individuals into isolation because they want to prevent disorder within the prison’s population; individuals are categorized and placed within confinement based on if they are perceived to be a threat within the prison to administrators or fellow inmates (Lobel 2003, 406).

The prisoners do not actually have to commit a crime, but their level of danger is determined through an administrator’s subjective experience (Lobel 2003, 406). Administrators become experts in the prisons, and there have been examples of individuals being placed in confinement because a fellow prisoner attacked them (Lobel 2003, 400). If a fellow inmate is willing to attack another prisoner, this action suggests to administrators that the prisoner being attacked must be a threat in some way (Lobel 2003, 400). This prisoner has done nothing wrong, but I believe will have a much more drastic experience within solitary confinement than if they were part of the regular prison population. I assert that that any individual placed within confinement has become exceptional due to the unregulated administrative power exerted over them.

Maximum-security prisons also have administrative review boards that are in charge of determining a prisoner’s status and whether they will be moved back into a regular prison. These committees are made up of prison officials, and they

A False Sense of Security review the status of these prisoners annually. I believe that these review boards are similar to the Combatant Status Review Tribunals and Administrative Review Boards, which hold annual reviews of the status of enemy combatants. Both of these review boards are primarily composed of administrators, who may have preexisting motivations for keeping a prisoner confined, such as preventing future disorder (Lobel 2003, 406). There is also a similar hierarchy of power in maximum-security prisons when compared to Guantanamo’s review boards, since the panel or board can determine that a prisoner should be released, but a higher-ranking administrator generally over turns their recommendation (Lobel 2003, 400). Therefore, prisoners are granted a right to see a quasi-review board that, in reality, gives recommendations that are usually ignored by a higher authority. This creates a system where prisoners cannot be released from their confinement within maximum-security prisons, like those imprisoned within Guantanamo.

Prisoners detained in this manner within maximum-security are held in solitary confinement indefinitely, and neither good behavior nor a lawyer can have them released from confinement (Lobel 2003, 399). For example, at the Arizona Department of Corrections super-maximum prison, there is a catch-22 in being released back into the general prison population (Lobel 2003, 402). The only way to be released from solitary confinement is to submit to a debriefing process where prisoners must list names of other gang members. Yet, if they submit the names or “rat out” fellow gang members, they cannot be placed back within the general prison population (Lobel 2003, 399). This lack of release is also justified through a preventive logic because gangs notoriously execute gang members who disclose this type of information.

Therefore, prisoners have to remain within a high-

19

security prison to be protected, and prevent risk to themselves and others. In this way, there is no plausible way to overturn an administrative decision after they are placed into one of these confinements.

The purpose of drawing this parallel between Guantanamo and the maximum-security prisons is to firstly show that Guantanamo’s practices may not be exceptional. Instead, the geopolitical location makes it exceptional and showcases the already existing practices within the U.S. Secondly, to show that temporary mechanisms, such as those deployed in prisons, can become permanent fixtures in the legal norm. Maximum-security prisons had practices that were almost identical to the physical torture used within Guantanamo, such as: prisoners having their hands and feet “hog-tied” or bound together, being shackled to filthy toilets for twenty-four hours a day, being confined in outdoor cages the size of telephone booths, and being naked or partially dressed while being exposed to outside weather elements (Guenther 2013, 134). In Madrid v. Gomez (1995) these types of conditions were brought to the Court as violating a prisoner’s Eighth Amendment rights (Zehr 2014).

The courts ruled that these types of practices indeed do treat prisoners as less than human. Still, the courts stopped short at criticizing the practices like solitary confinement, by saying that only mentally ill patients could be spared from enduring solitary confinement, and allowing for grey legal holes to exist regarding what constitutes as torture (Casella and Ridgeway 2014). The courts did curtail the abuses present within the prison, as courts have also done regarding the torture used in Guantanamo, but they have still left other practices intact.

Preventive rationale was also explicitly used in Sandin v. Conner (1995), when the courts found that solitary confinement did not violate the rights

20 of prisoners (Zehr 2014). The Court reasoned that confinement is not based on a retributive principle, but instead allows the prison population to be more effectively managed. In Hope v. Pelzer (2002), administrative immunity was also granted when torture occurred in prisons (Zehr 2014). In this case, the Court ruled that government actors, such as these administrators, could not be sued for their actions.

This suit was brought because prisoners were attached to a “hitching post,” which immobilized them for large periods of them. Hope, who was a prisoner and is the petitioner in this case, stated that he would be attached to the post, left to be burn in the sun, not given adequate water nor bathroom breaks, and was taunted by guards and prison dogs (Zehr 2014). Hope sought to sue the prison guards involved in the incident, but the Court ruled that even though the “hitching post” was a form of cruel and unusual punishment, it had not been previously and clearly established as such. Therefore, the Court showed that they would be willing to overlook administrator’s role in utilizing cruel and unusual punishment, if there was no clear precedence that these actions were tortuous. I believe that this sets a dangerous precedent because the Courts legitimized the actions of administrators by adhering to a strict reading of the law rather than ruling that administrators should be held accountable for all actions that are essentially cruel and inhumane. These court cases create legal grey holes where the practices of torture and solitary confinement are legitimized in maximum-security prisons.

Conclusion The courts have created legal grey holes that allow maximum-security prisons and Guantanamo to operate similarly. Maximum-security prisons can use administrative detention and solitary confinement

to order the population within it. This measure is not justified through a punitive or disciplinary rhetoric but is justified as preventive and thus treated with leniency by the courts. The prison system within Guantanamo justifies its actions by the same preventive rhetoric (Lobel 2003, 406). Individuals do not have to commit a crime in order to be detained, but simply must pose a possible future threat to U.S. national security.

Although prisoners within maximum-security prisons have retained the right to habeas corpus and have been convicted, there is no judicial means of being released from solitary confinement or administrative detention once they are placed within the prison system. Instead, both prisoners in Guantanamo and maximum-security prisons must rely on administrators to be the ultimate sovereign authority and decide their fate.

Administrative review boards assess cases regarding the detainment status of prisoners within both prisons. Guantanamo created the Combatant Status Review Tribunals and Administrative Review Boards to comply with the Supreme Courts’ decision in Hamdi v. Rumsfeld (2004). These tribunals are composed of internal administrators, and the Administrators Review Boards can only offer recommendations to the Secretary of the Navy, who can overturn any of their decisions (Golden 2006, 1). Maximum-security prisons also have boards or panels that hear the cases of prisoners, and generally higher-administrators overturn recommendations for release. Consequently, it seems that prisoners within Guantanamo and maximum-security prisons have no genuine means of contesting their preventive confinement.

Prisoners have to be classified as a threat by administrators in order to be confined, and many times this classification is determined by arbitrary factors such as an individual’s race. Muslims are

Pi Sigma Alpha Undergraduate Journal of Politics typically targeted by the American government and are suspected of terrorism. Maximum-security prisons exhibit the same bias. In Texas prisons, simply being Hispanic or gang-related serves as sufficient reasons to automatically place an individual in solitary confinement (Lobel 2003, 399). Individuals can then experience inhumane treatment and punishment within either prison. Guantanamo’s administrators are allowed to harm individuals to the point of death or organ failure before they are legally conducting torture, and solitary confinement has been described as a form of psychological torture in domestic prisons (Office of Legal Counsel 2002, 1). There have also been a plethora of abuses that have occurred within maximum security prisons, such as: hog-tying, being attached to a hitching post, prolonged confinement in outdoor cages, and remaining shackled to toilets for 24 hours a day (Casella and Ridgeway 2014). In these cases, administrators have been shielded by the courts from being held accountable for their actions, and have been able to retain their authority over prisoners.

Although the geopolitical location of Guantanamo has highlighted many of the inhumane practices that have been utilized within it, Guantanamo is not exceptional. Maximumsecurity prisons utilize similar practices that are justified by the courts through a preventive logic.

The courts have tried to curtail the abuses occurring within Guantanamo amidst the backlash from both American citizens and the international community, but individuals need to be just as concerned about the practices occurring in American maximum-security prisons. The location of the prisoners should not matter because, in the end, they are still human beings and should not be dehumanized by administrators. I argue that the courts should not be legitimizing these types of practices and supporting the objectification of

21

prisoners. Guantanamo revealed and highlighted the consequences of unchecked power, but the discussion cannot stop there. The legal arguments, practices, and structures of maximum-security prisons need to be scrutinized as well, so that prisoners can be treated as people and not endure the undue brutality of administrators who have lost touch with their respect for human dignity.

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Associated Press. 2007. “U.S. to Allow Hearsay, Coerced Statements in Guantanamo Trials,” CBC News, January 18. http://www.cbc.ca/news/world/us-to-allow-hearsay-coerced-statementsin-guantanamo-trials-1.661413 (Accessed November 28, 2015).

Bostian, Ida. 2006. “One Step Forward, Two Steps Back: Hamdan v. Rumsfeld and the Military Commissions Act of 2006.” Santa Clara Journal of International Law 5 (1):217-235 Boumediene v. Bush. 2008. 553 U.S. 723.

Butler, Judith. 2004. Precarious Life: The Powers of Mourning and Violence. London: Verso.

Casella, Jean, and James Ridgeway. 2011. “Case Closed on Supermax Abuses at Pelican Bay,” SolitaryWatch.com, February 18. http:// solitarywatch.com/2011/02/15/case-closedon-supermax-abuses/ (Accessed December 20, 2014).

Criddle, Evan. 2010. “Mending Holes in the Rule of

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Syrnik (Administrative) Law.” Northwestern University Law Review 104 (3):1271-1280.

Dyzenhaus, David. 2008. “Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order?” Cardozo Law Review 27(5):2005-2040.

Indefinite Detention,” Harvard Civil Rights – Civil Liberties Law Review, April 4. http:// harvardcrcl.org/dont-forget-guantanamothe-legacy-of-the-war-on-terror-torture-andindefinite-detention/ (Accessed November 23, 2015).

Dyzenhaus, David. 2010. “The Organic Law of Ex Parte Hope v. Pelzer. 2002. 536 U.S. 730.

Milligan.” In Sovereignty, Emergency, Legality, Human Rights Watch. 2008. “The Range of Prison ed. Austin Sarat. New York: Cambridge Facilities at Guantanamo.” https://www.hrw.

University Press, 16-57. org/reports/2008/us0608/2.htm (Accessed Feldman, Leonard. 2010. “The Banality of Emergency: November 18, 2015).

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Conflict and Human Society, eds. Sweden: Fletcher, George. 2004. “Black Hole in Guantanamo International Institute for Democracy and Bay.” Journal of International Criminal Justice Electoral Assistance, 125-139.

2(1):121-132.

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Guantánamo.” Critical Inquiry 33(4):734-753.

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Annihilation of the Exception.” European Journal of International Law 16(4):613-635.

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American Quarterly 57 (3): 831-858.

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A False Sense of Security papers.ssrn.com/sol3/papers.cfm?abstract_ id=390440&download=yes (Accessed November 24, 2015).

Legal Information Institute. “10 U.S. Code 5013 – Secretary of the Navy.” Cornell University Law School. https://www.law.cornell.edu/uscode/ text/10/5013 (Accessed November 20, 2015).

Lobel, Jules. 2003. “Preventive Detention: Prisoners, Suspected Terrorists and Permanent Emergency.” Thomas Jefferson Law Review 25(2):389-413.

Madrid v. Gomez. 1998. 150 F.3d 1030.

Office of Legal Counsel, U. (2002, August 1).

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March 30. http://iipdigital.usembassy.gov/st/ english/texttrans/2005/03/20050330182753frlle hctim0.5563318.html#axzz3IJdcTJdj (Accessed November 24, 2015).

Zehr, Garrett. “Solitary Watch - U.S. Supreme Court Cases,” SolitaryWatch.com. December 10. http://solitarywatch.com/resources/u-ssupreme-court-cases/ (Accessed November 23, 2014).

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Redemption of Shawshank? Putting Prison Rape on the Legislative Agenda.

Brandon L. Bolte Truman State University The Prison Rape Elimination Act of 2003 was the first federal legislation aimed at reducing and preventing sexual assault in corrections facilities. The legislation requires nationwide data collection by the federal government on the incidence of prison rape and led to the development of federal prison standards in every state. Given its tragically widespread incidence, why did prison rape take so long to reach the legislative agenda? This article will analyze the political environment leading up to the placement of prison rape on the legislative agenda as well as discuss the major groups and actors involved in the agenda-setting process.

The analysis demonstrates that public attitudes toward prison reform prevented prison rape from becoming part of the policy agenda until the issue was reframed as both a Christian moral imperative and a public goods issue.

Introduction

reaffirming his dedication to solving social issues

2011). Indeed, as this paper will argue, conservative

The Prison Rape Elimination Act of 2003

with “faith based initiatives” (Jenness and Smyth

(Prison Rape Elimination Act 2003) was the first

Christian lobby groups, particularly Prison Fellowship

federal legislation enacted by the U.S. Congress to

Ministries, were among the most important catalyst

reduce and prevent the incidence and effects of prison

groups for putting prison rape on the legislative

rape in the U.S. In a general sense, the Prison Rape

agenda.

Elimination Act of 2003 (PREA) sought to “…provide

for the analysis of the incidence and effects of prison

was remarkably swift despite the generally indifferent

rape in Federal, State, and local institutions and to

public attitude toward incarcerated persons at the

provide information, resources, recommendations,

time (Jenness and Smyth 2011; Mair, Frattaroli, and

and funding to protect individuals from prison rape”

Teret 2003). Congress already had a strained budget

(PREA 2003, 1). The PREA ordered a comprehensive

due to the war efforts in the Middle East and recently

investigation on rape in corrections facilities in the

implemented tax breaks (Jenness and Smyth 2011).

United States, offering incentives and resources for

Nevertheless, the ignorance of rape in correctional

those facilities that are actively fighting the incidence

facilities had resulted in countless human rights

of prison rape, and punishing facilities that are falling

abuses. In a hearing before the Subcommittee on

short of standards set by the federal government

Crime, Terrorism, and Homeland Security in the

(PREA 2003). After unanimously passing both

U.S. House of Representatives (U.S. Congress 2003,

houses of Congress, President George W. Bush signed

6), Representative Bobby Scott (D-VA) made it clear

the bipartisan bill into law on September 4, 2003,

that “the effort to combat prison rape is a moral

The speed at which the legislation was passed

Pi Sigma Alpha Undergraduate Journal of Politics

25

imperative.” If this is true, the critical inquiry to be made is rather simple: Why did it take so long for prison rape to be placed on the legislative agenda?

In this article, I analyze the political environment preceding the placement of prison rape on the legislative agenda and discuss the major groups and actors involved in the agenda-setting process.

The analysis demonstrates that public attitudes toward prison reform prevented prison rape from becoming part of the policy agenda until the issue was reframed as both a Christian moral imperative and a public goods issue. The new public perspective

prison was a letter written by a layman to a public official in 1826. The writer argued to the public official for the improvement of prison conditions for inmates who had been “prostituted to the lust of old convicts” (qtd. in Wooden and Parker 1982, 205). Unfortunately, the academic community has paid relatively little attention to prison rape in America. In the decades preceding PREA, only a few studies emerged and their results were inconsistent.

One of the first comprehensive studies of sexual assault in penal institutions was conducted

by Carl Weiss and David James Friar. In their 1974

on prison rape and prison reform converged with a new administration’s political philosophy and the framing efforts of multiple interests groups in the early 2000s. This resulted in an unprecedented change from legislative inaction to unanimous, bipartisan support to address the problem of prison rape.

The paper will proceed as follows: the first section will survey the academic literature on prison rape and analyze how scholarly research has defined prison rape as policy. The second section will discuss the lobbying and human rights groups that defined prison rape as a moral issue. The third section will synthesize the popular and judicial attitudes toward prison rape and reform and discuss how they impeded prison rape policy from being put on the agenda until the late 1990s. The fourth section will discuss the transition of the framing of prison rape from a private goods issue to a public goods problem. The final section will briefly address how PREA finally reached Congress and why the legislation passed so quickly.

book, Terror in the Prisons: Homosexual Rape and Why Society Condones it, the authors report gruesome testimony of victims, rapists, and authorities in prisons. They estimate that approximately 46 million Americans would be arrested at some point in their lives, and roughly 10 million of these people would be raped in prison (Weiss and Friar 1974). In Men Behind Bars: Sexual Exploitation in Prison, Wayne S. Wooden and Jay Parker report a 14% sexual assault rate of prisoners in a medium-security California institution.

These authors develop a socio-sexual model of prison rape, identifying characteristics that put an individual at a greater risk of being sexually assaulted in prison.

These characteristics include having feminine qualities, being smaller or weak, being homosexual, and simply being young (Wooden and Parker 1982; also see Dumond 2003; Tucker 2003).

Both of these works were the impetus of the unfortunate dearth of academic studies that would follow. Both also emphasized the terrible nature of the issue without strongly and explicitly advocating largescale institutional change. Most recommendations remained at the prison-level, such as separating the cells of homosexual inmates and changes in staffing policy (Wooden and Parker 1982). The Weiss and

Scholarship on Prison Rape

Sexual assault in prison is not a recently established pattern of behavior. In fact, the earliest documented incidence of sexual victimization in a

26

Bolte

Friar (1974) study dedicated less than two pages in their concluding chapter to the negative externalities of prison rape. Wooden and Parker (1982) discuss the judicial environment at the national level, but do not explicitly advocate for federal legislation. Furthermore, although these primary works were instrumental in putting the issue of sexual assault in prisons on the academic agenda, the authors framed the issue as a terror experienced in prisons alone. While the morality of the issue remained the same, the public felt unaffected by what occurred in prisons. Therefore, little attention was given to placing prison rape on

Peek (2003) explains that the variance in survey results is due to a number of factors. First, the definition of “rape” and “sexual assault” differs between studies. The Struckman-Johnson studies defined rape broadly as any unwanted sexual contact, whereas the Saum et al. (1995) study defined it as unwanted oral or anal sex. Furthermore, some scholars argued that the prison environment is too coercive to classify any sexual contact as consensual (Eigenberg 1989).

Results may also differ between studies because official prison rape records are often not reliable (Bell, Coven, Cronan, Garza, Guggemos, and Storto 1999;

the policy agenda. More abruptly put: “No library, no bookstore contains a single hard-cover or paperback book that concerns itself completely with the rape that is rampant in our prisons… nobody talks about prison rape” (Weiss and Friar 1974, x).

The later data collected by academic studies remained largely inconsistent. Struckman-Johnson, Struckman-Johnson, Rucker, Bumby, and Donaldson (1996) reported a 12% rate for forced penetration, which is similar to Wooden and Parker’s (1982) 14% rate for sexual assault. Saum, Surratt, Inciardi, and Bennett (1995) reported that of the 101 prisoners surveyed, only five had claimed they had been sexually assaulted and no incidents had occurred in the year prior to the survey. Struckman-Johnson et al. (1996) also reported that 22% of the prisoners surveyed had either been raped, pressured, or coerced into some form of sexual activity. Though the three studies of Midwest prisons led by Struckman-Johnson and her colleagues (Struckman-Johnson et al. 1996; Struckman-Johnson and Struckman-Johnson 2000; 2002) provided general baseline data regarding the prevalence of sexual assault in prisons before PREA, the need for a nationally comprehensive dataset remained dire (Dumond 2003).

Peek 2003). This occurs as a result of factors within the incarcerated population as well as the behavior of authorities responsible for reporting the incidents.

Regarding the latter, Davis (1968) reported that only 156 of the 2,000 reported sexual incidents in the Philadelphia prison system were documented. Only 64 were listed in official prison records and only 40 actually resulted in disciplinary actions against the offenders (Davis 1968). Social pressure within the inmate population also leads to unreliable data (Bell et al. 1999). The stigma attached to “ratting” on other inmates or prison guards is often negative and may lead to further physical and sexual assault (Bell et al.

1999; Wooden and Parker 1982). During the PREA (then called the Prison Rape Reduction Act) hearing before the U.S. Senate Committee on the Judiciary Committee (U.S. Congress 2002), Linda Bruntmyer testified on behalf of her son, Rodney Hulin, a victim of prison rape. At age 16, Rodney had been raped and beaten multiple times and had filed complaints to prison officials. A medical examiner had confirmed the initial rape, finding tears in his rectum. He requested to be moved to a different location because he knew that after being raped once, he was at risk of being raped again. Indeed, Wooden and Parker (1982)

Redemption of Shawshank?

27

identify previous rape victimization as one of the key risk factors of being raped again in prison (also see Tucker 2003). Unfortunately, the prison officials refused to relocate Rodney. When his mother called the warden, he responded, “Rodney needs to grow up.

This happens every day. Learn to deal with it. It’s no big deal” (U.S. Congress 2002, 8). Rodney eventually hung himself after admitting to his mother that he was “emotionally and mentally destroyed” (U.S. Congress 2002, 9).

The unreliability of prison rape data and the inconsistency in the academic literature was

Council of La Raza, Salvation Army, Stop Prisoner Rape, and the Religious Action Center of Reform Judaism (Congressional Record 2003). When asked how the Southern Baptist Ethics and Religious Liberty Commission came to work alongside groups like Amnesty International, Shannon Royce, legislative council for the former group, explained, “Everyone has basic human rights, even if they are being dealt with and sanctioned for inappropriate social behavior, and prison should not take those away” (Tucker 2003, A10). In the PREA hearing before the U.S. Senate Committee on the Judiciary (U.S. Congress 2002,

paramount to the formulation of PREA, since one of the most important aspects of the legislation is the mandate to randomly survey prisons in the U.S. in the effort to gather comprehensive data. However, the scholarly literature on prison rape accomplished little with regards to putting prison rape on the policy agenda. Most of the literature before the passage of PREA framed policy implications at the prison-level rather than discussing solutions at the nationallevel (see, for example, Dumond 1992; Peek 2003; Struckman-Johnson and Struckman-Johnson 2002; Wooden and Parker 1982). Far more important to the agenda setting process for PREA were the lobbyist and human rights groups involved in bringing the horror of prison rape to the legislative arena.

12), Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, admitted, “It is not so common for Reform Jews and conservative Evangelicals to find common ground to work together, but when we do, you can be sure that the issue at stake is one that cuts to the heart of a principle so basic that no reasonable person can stand in the way of its genuine manifestation.” Although the Director of the Hudson Institute, Michael Horowitz, coordinated the coalition of over 35 non-profit groups in support of PREA (Tucker 2003), three groups were most influential in defining prison rape as a moral issue: Prison Fellowship Ministries, Stop Prisoner Rape, and Human Rights Watch.

Prison Fellowship Ministries was perhaps the single most important group for putting prison rape on the policy agenda (Jenness and Smyth 2011). The conservative Christian group was founded in 1976

by Chuck Colson after he was released from prison following the Watergate Scandal (Jenness and Smyth 2011). The group remains one of the largest in the world, partnering with thousands of churches and volunteers internationally to minister to prisoners (Jenness and Smyth 2011). In 2001, Colson asked Mark Earley to take over Prison Fellowship Ministries

Moral Entrepreneurs

PREA was supported by a peculiar coalition of lobby and human rights groups. Among the signatories of an extensive letter submitted to the House of Representatives in April of 2003 were Amnesty International, the Southern Baptist Ethics and Religious Liberty Commission, the Christian Coalition, Concerned Women of America, NAACP, the National Association of Evangelicals, the National

28 (Suellentrop 2006). Earley is one of the most successful Christian conservative politicians to emerge from Virginia, having served in the Virginia Legislature and actively “working on how to put more people in jail and keeping them there longer” (Earley qtd. in Suellentrop 2006, 2). Earley was hesitant about taking the job, but after reading his Bible he realized the surprising number of criminals that played a critical role in the canon, including Saint Stephen (the first known Christian martyr) and Moses (Suellentrop 2006). He explained, “If Moses or Paul had lived in Virginia or any state in the United States today, they

secular human rights groups were also particularly important. The first is Stop Prisoner Rape, which framed prisoner rape as a violation of human rights (Jenness and Smyth 2011). Now reorganized as Just Detention International, Stop Prisoner Rape was a human rights group exclusively devoted to ending sexual violence against all sexes and ages in all forms of detention (“Our History” 2015). The group was founded by Russell D. Smith in 1980, with leadership changing to Stephen Donaldson in 1994 – both individuals were victims of prison rape (Jenness and Smyth 2011). Donaldson wrote articles and editorials,

would be serving, had they been caught, a multipledecade prison sentence” (qtd. in Suellentrop 2006, 2).

As Jenness and Smyth (2011, 501) explain, Prison Fellowship Ministries put prison rape on the public agenda by drawing on the “evangelical fervor” and emphasizing that the fight was a moral one. In a powerful essay, Chuck Colson once proclaimed “We must wage an assault on prison rape – not because we may one day be victimized by released inmates, but because getting rid of our own ‘places of evil’ is the human and Christian thing to do” (qtd. in Jenness and Smyth 2011, 503). The group advocates fellowship with Jesus through numerous programs for children and families of prisoners, sponsors a prisoner pen pal program, and generally works to develop a Christianbased prison reform structure (Jenness and Smyth 2011). Conservative Christian groups, such as the Prison Fellowship Ministries, became particularly effective in placing prison rape on the legislative agenda as the political environment became more conducive to faith-based initiatives during George W. Bush’s presidency (which will be discussed further in the following section).

While Prison Fellowship Ministries was instrumental in putting prison rape on the agenda, two

launched the group’s website, and coordinated Stop Prisoner Rape’s amicus brief for the landmark case Farmer v. Brennan (Jenness and Smyth 2011). In 2001, Stephen Donaldson was replaced with Lara Stemple, the first non-victim leader of the organization.

Nevertheless, her legal background has been paramount in advocating for prison rape victims in the public policy field (Jenness and Smyth 2011).

One way that Stop Prisoner Rape works to raise awareness and change the public perspective on sexual assault in prisons is to provide victims with a podium to give testimony to the public. This sponsored “podium” can be either literal or figurative. For instance, the group often publishes first-hand survival stories in newsletters as well as the poetry of victims, but it also sponsored a massive Capitol Hill event just three months before the passage of PREA entitled “Stories of Survival: Recognizing Prison Rape Behind Bars” (Stop Prisoner Rape 2003).

The second major human rights group in the PREA agenda setting process was Human Rights Watch (HRW). Officially founded in 1978 as Helsinki Watch, the group has since expanded to investigate and report human rights abuses throughout the world (“History” 2014). HRW originally addressed the issue

Pi Sigma Alpha Undergraduate Journal of Politics

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of prison rape in 1996 with the release of a report on the custodial abuse of women entitled All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (Thomas, Blatt, Levi, Lai, Mariner, and Ralph 1996). The report revealed sexual assaults by prison guards in eleven state prisons and criticized the U.S. government for failing to conduct impartial investigations of prison rape. Even then, Gara LaMarche, the associate director of HRW at the time, was skeptical of defining the issue as a violation of human rights (Weiss 2001). He explained, “This is part of the motif of every cop show on television. It’s deeply ingrained in the culture, and

on data collected from an unprecedented range of locations and prisons.

Furthermore, the efforts of conservative Christian lobby groups and secular human rights groups clearly led to PREA becoming a priority on the legislative agenda. The major interest groups involved certainly defined the issue in different terms, but the differing definitions were complementary rather than contradictory. These complementary definitions reached a broader coalition of groups without isolating or directly interfering with most others. Given the newfound public awareness and understanding of

we’re all inured to it. There’s contempt for prisoners, and it’s also a hugely uncomfortable topic for men to talk about” (LaMarche qtd. in Weiss 2001, 1). Both Gara LaMarche and Joanne Mariner, another HRW employee, had their minds changed after meeting with Donaldson of Stop Prisoner Rape soon after.

Human Rights Watch employee, Joanne Mariner, then initiated a comprehensive study of male prison rape and published her findings in a report entitled No Escape: Male Rape in U.S. Prisons (Weiss 2001). The report was the most broad-based study of prison rape at the time, encompassing testimony from 200 prisoners in 37 states (Mariner 2001). It provided an in-depth analysis of prison policy over the preceding few decades, provided a budgetary context of incarceration, and revealed sources of the tragedy of prison rape at the prison-level as well as the legislative and judicial levels. Mariner’s (2001) report was arguably the single most influential study to affect the agenda setting process of PREA. It framed the issue as a human rights violation, included scientific as well as testimonial evidence to her claim, discussed the public consequences of the problem of prison rape, and focused primarily on male victims. Perhaps most importantly, the study’s conclusions were based

the terrors of prison rape, swift passage of PREA was inevitable. Still, it remains peculiar that the bill passed with unanimous consent and little debate, but took so long to be placed on the policy agenda. Why, then, did prison rape not become an important policy issue until after the year 2000?

Popular and Judicial Attitudes toward Prison Rape and Reform

Since the early-1980s, both judicial and

popular attitudes toward prison rape and prison reform have impeded prison rape from being placed on the national legislative agenda. In the late 1960s, U.S. courts had begun to actively monitor prison conditions and mandate their reform. The public interpretation of correctional facilities emphasized the role of prison institutions as rehabilitation centers rather than simple punishment (Mariner 2001). In 1972, a rioting and killing incident in a New York, Attica prison led to increased public attention of prison abuses. After desegregating schools and the upholding of various other civil rights, the courts were sought after by activists and advocacy groups to help with the abuses, leading to a number of victories for prisoner rights (Mariner 2001). Some of the most

30

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notable cases included Estelle v. Gamble (1976) and

words, the population outside prison institutions

Dothard v. Rawlinson (1977).The former case led to the

was relatively indifferent about what occurred within

first use of the term “deliberate indifference” regarding

prisons. Awareness of the problem was rampant, as

the 8th Amendment (Peek 2003). Prison rape was

prison rape was frequently mentioned in popular

deemed cruel and unusual punishment if the prison

culture, particularly songs, such as “Date Rape” by

authorities were indifferent toward objectively severe

Sublime (1992) as well as movies, such as the critically-

confinement.

acclaimed film The Shawshank Redemption (1994). Yet,

unfortunately, little progress in terms of prison rape

In 1974, however, a sociologist named

Robert Martinson published an article in the The

prevention was made.

Public Interest in which he claimed that there was

no evidence that rehabilitation programs in prisons

during the 1990s created an unconducive environment

reduced recidivism (Suellentrop 2006). The subsequent

for prison rape legislation. The greatest victory for

media coverage of his article and the high crime

advocacy groups against prison rape was the landmark

rates of the 1970s led to a shift from a rehabilitative

case Farmer v. Brennan in 1994, which specified the

interpretation of prison programs to the interpretation

conditions under which an incarcerated person could

that prison was a punishment (Suellentrop 2006). The

sue prison authorities in the event of sexual assault.

rehabilitative view of incarceration was continually

If the plaintiff could show that the officials knew of

questioned by critics into the 1980s who noted high

the risk of rape and did not act to reduce it, a lawsuit

recidivism rates (Mariner 2001). This led to the

could be filed On the other hand, there are four ways

appointment of numerous conservative judges by

for a prison officer to escape liability: 1) if he had no

President Reagan, which was followed by a series of

knowledge of the risk; 2) if he responded reasonably

Supreme Court rulings limiting prisoner rights and

to the risk; 3) if he had a qualified immunity; or 4)

a reduction in judicial oversight of penal institutions

if he took steps during the litigation to remove the

(Mariner 2001).

risk (Peek 2003). Despite the precedent established

This shift in policy to a stricter “law and order” approach was coupled with a shift in public attitude toward prison reform. Frustration with high crime rates gave rise to a stereotype of “pampered” prisoners watching television all day in a college campus setting and filing petty complaints (Mariner 2001). Prison officials imposed a stricter incarceration environment, such as removing weight equipment and college programs from their facilities (Mariner 2001). By the 1990s, sexual assault in prisons became a tolerated issue that was generally joked about in the general public and regarded as an expected aspect of prison life (Dumond 2003; Tucker 2003). In other

by Farmer v. Brennan (1994), the law-and-order

The public attitude toward prison policy

attitude toward incarceration culminated with the Prison Litigation Reform Act (1996). The legislation invalidated all settlements that did not include explicit findings that prison conditions violated federal law and called for the termination of all court orders against unlawful prison conditions suits after two years (Prison Litigation Reform Act 1996). This was particularly restricting to prisoners that experience sexual assault because prison authorities are often hesitant to admit findings that prison conditions were conducive to sexual violence (Mariner 2001). The Department of Justice also began to bar the Federal

Redemption of Shawshank?

31

Legal Services Corporation from funding legal aid

idea of prisoner “re-entry,” a rhetorical term devised

organizations that represented prisoners (Mariner

by Travis to imply the unpopular notion of prisoner

2001).

rehabilitation while reframing the emphasis of the

In fact, there were a few legislative attempts

issue from the criminal to the community (Suellentrop

at targeting and reducing prison rape in the 1990s,

2006). Prison reform was now being reshaped from

but none of them gained any traction in Congress.

a private to a public concern. If the public would see

In 1997, Representative Sheila Jackson-Lee (D-TX)

prison policy as a public issue, the climate for policy

introduced the Juvenile Rape in Prison Protection Act,

reform could change.

which would have amended the federal criminal code

to require a life sentence for anyone who committed

attention from indifference to interest would begin

sexual assault on a juvenile in detention (Bell et al.

to pave the way for PREA to be put on the legislative

1999). Congressman John Conyers, Jr. (D-MI) also

agenda because prison rape could be framed as an

introduced an amendment to a reauthorization of the

issue with negative externalities rather than a random

Violence Against Women Act called the Custodial

happenstance confined to prison facilities. In the early

Sexual Abuse Act (Smith 2008). The legislation would

2000s, 7 UP launched a television ad entitled “Captive

This change in political atmosphere and public

have created a registry of prison staff involved in sexual Audience” in which a 7 UP spokesperson drops a abuse of inmates, but the bill was quickly removed can of soda while handing soda out to prisoners and from the Violence Against Women reauthorization bill

refused to bend over to pick it up (Qutb and Stemple

and never reintroduced (Smith 2008).

2002). Later in the ad, a cell door slams, trapping

Meanwhile, the crime rate in the U.S. was

the spokesperson on a bed with a male prisoner

beginning to fall, and the population of state and

who would not remove his arm from around his

federal prisons continued to rise. The primary reasons

shoulders. The advertisement agency responsible for

for the increase in prison population were the increase

the campaign had claimed that the ad tested quite

in the length of the average sentence and the drastically favorably (Qutb and Stemple 2002). After a month of increasing recidivism rates (Butterfield 2000). Tougher outrage from a number of advocacy groups, the ad was sentencing laws resulted in an increased average

cancelled. The latter was the first such incident in 7

sentence of 28 months in 1998 compared to 20 months

UP’s 75-year history (Qutb and Stemple 2002). Prison

in 1990, while the number of incarcerated persons

rape was finally leaving the taboo arena.

returned to prison after being released on parole

during this time period grew by approximately 54%

Bush adapted the Clinton-era re-entry programs to

(Butterfield 2000). The automatic release implication

fit his goals to solve social problems with faith based

of the recently passed mandatory sentencing laws

initiatives (Suellentrop 2006). Although prison reform

were becoming counterproductive because prisoners

was not a major part of the Republican Party platform

were now leaving prisons without incentives to change

at the time, “a growing number of social conservatives

their behavior (Suellentrop 2006). In 1999, Attorney

[were] trying to make it a centerpiece of the Christian-

General Janet Reno and Jeremy Travis, director of

conservative agenda” (Suellentrop 2006, 1). Political

the National Institute of Justice, began promoting the

and societal attitudes toward prisons were beginning

In the political realm, President George W.

32 to move away from strict law-and-order ideals to a

desire for more rehabilitative policies. In his testimony

overcrowded, high recidivism rates could bear

before the U.S. Senate Committee on the Judiciary

especially high public costs. When prisoners have

(2002, 5) during the formulation process of the bill,

no incentive to change their behavior in prison, the

Representative Frank Wolf (R-VA) explained: “When

likelihood that they commit further crimes after they

you incarcerate someone, you cannot just put them

are released increases (Butterfield 2000; Suellentrop

away with the idea they are in a warehouse… you are

2006). This can be especially problematic when the

actually turning these people into violent people when

total monetary costs of incarceration amount to

they come out.” Combined with the release of the 2001

approximately $40 billion annually and are one of

Human Rights Watch report and a changing attitude

the largest items on state budgets (Mariner 2001). In

toward prison rape and prison reform in general,

addition, prison rape victims often require extensive

conservative Christian groups were provided an easy channel through which they could begin to address sexual assault in prisons and frame it as a policy worth Congress’ time and resources. Furthermore, the policy interests of conservative Christian groups like Prison Fellowship Ministries were facilitated by the Bush administration’s desire to solve social problems with faith-based initiatives, which allowed prison reform regarding sexual assault to be placed on the policy agenda almost immediately after the Clinton era.

Since corrections facilities were already

medical and psychological treatment, and many victims become more violent after being assaulted (Mariner 2001). This combination of externalities costs the public dearly if prison rape is not addressed.

Mark Earley, President of Prison Fellowship Ministries, elaborates on this issue during his testimony: “This is a problem that affects everyone. Ninety-five percent of all inmates will return to society and they will return in a way that will either help them to reintegrate or hinder their ability to reintegrate” (U.S. Senate

The Sequelae of Prison Rape in Society

Committee on the Judiciary 2002, 10).

It is important to note again that PREA allotted $60 million to create prison rape prevention programs and begin to combat sexual assault in penal institutions during a time of war and tax breaks (Jenness and Smyth 2011). Interestingly, defining PREA as a redistributive policy was not a major aspect of the agenda setting process; rather, the major debate regarding the redistribution of resources from some prison institutions to others played a greater role in the formulation of the policy (U.S. Congress 2003). This reflects the major shift in framing the issue as a public interest rather than a private interest. Prison rape no longer solely affected prisoners. Instead, the costs of prison rape to the public took the form of a potentially higher tax burden and the spread of HIV/AIDS.

cost to ignoring prison rape. Beginning in the 1990s,

The spread of HIV/AIDS is also a significant

the AIDS rate grew to over six times that of the general population (Bell et al. 1999). Among the inmates released in 1997, over 465,000 reportedly had a sexually transmitted disease (Dumond 2003).

Over 155,000 prisoners released in the same year had hepatitis B, with the chronic hepatitis B rate in prisoners being two to six times the national average (Dumond 2003). Prisons are therefore breeding grounds for STDs, which are then easily transmitted to the general population if the released inmates engage in sexual activity. Combined with the lack of rehabilitation mechanisms in American prisons, rape behind bars is a threat to public safety. When

Pi Sigma Alpha Undergraduate Journal of Politics

33

raped prisoners are released, they are not only more

Coalition, which included a congressman, a number

likely to commit crimes again, but they may spread

of congressional aides, academic researchers including

STDs (Dumond 2003). Emphasizing the public

Robert Dumond and Cindy Struckman-Johnson,

security aspect of the problem, Representative Frank

religious leaders, a philanthropic CEO, and a victim of

Wolf (R-VA) proclaimed before the U.S. House of

prison rape (Warren and Jackson 2013).

Representatives Subcommittee on Crime, Terrorism,

and Homeland Security (U.S. Congress 2003, 6):

Congress to he should contact in order to get a prison

“Think of your son, or think of your cousin, or think of

rape bill in the works. Horowitz first approached

your brother, or think of your next door neighbor…”

Representative Frank Wolf (R-VA), who chaired the

Thus, in the context of a rapidly augmenting rate

Appropriations Subcommittee on Commerce-State-

of STDs in the U.S., prison rape became a public

Justice and the Judiciary (Kaplan 2003). Wolf was not

safety issue with significant and dangerous negative

chosen solely for his leadership in Congress, however.

externalities.

He had also been involved in a volunteer group called

Bringing PREA to the Legislature

The change in the public and political

environments for prison rape legislation was so drastic that the decision to ultimately create legislation addressing the problem was made almost on a whim.

After having success passing the Victims of Trafficking and Violence Protection Act in 2000, Michael Horowitz, Director of the Hudson Institute, had an informal lunch with Linda Chavez, a representative from the Center for Equal Opportunity, and member of his most recent coalition (Warren and Jackson 2013). At one point during their meal, Horowitz stopped and simply said, “What’s next?” (Warren and Jackson 2013, 3). Chavez responded, “I have always thought what is so outrageous is that prison rape has never been effectively dealt with” (Kaplan 2003, 3). From that moment, prison rape had become Horowitz’s new legislative initiative.

After his lunch with Linda Chavez, Horowitz

went right to work to come up with ideas for a piece of legislation that could adequately address the problem of prison rape. The push to formulate PREA would be led by Horowitz and his Prison Rape Elimination

Horowitz was also well informed on who in

“Man to Man,” in which he mentored prisoners in Lorton Prison in Chantilly, Virginia (Kaplan 2003).

Interesting in the legal and moral ramifications of prison rape and corrections reform, Wolf eagerly agreed to get involved. The Prison Rape Elimination Coalition also brought Representative Bobby Scott (DVA) on board, who favored a bill that would reduce recidivism rates and violence committed by prisoners after being released (Kaplan 2003). Horowitz and John Kaneb, a GOP fundraiser from Massachusetts, then sought the support of Senator Edward Kennedy (DMA), whose top legal aide, Robin Toone, had recently written a book on prison rights (Kaplan 2003).

After obtaining the initial sponsors, the bill

quickly gained traction in Congress. Horowitz’s Prison Rape Elimination Coalition grew from 18 to 58 members, including the groups like NAACP, Human Rights Watch, Amnesty International, and eventually the American Correctional Association (ACA) (Struckman-Johnson and Struckman-Johnson 2013; Warren and Jackson 2013). The personal testimonies in both the Senate and House hearings, however, were the greatest drivers for the passage of PREA (Struckman-Johnson and Struckman-Johnson 2013).

34

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In a letter from Horowitz to the members of the Prison

PREA: What factors were most important in placing prison rape on the policy agenda and why was this Rape Coalition in 2003, Horowitz explained that he clear violation of human rights not addressed in knew the bill would pass after seeing a congressman’s federal legislation earlier than 2002? Among the reaction to the story of Tom Cahill (Struckmanmost detrimental factors to placing prison rape on Johnson and Struckman-Johnson 2013). (In 1968, Tom Cahill had been arrested for civil disobedience in the policy agenda were the strict law and order type protest of the war in Vietnam and had been raped and judicial climate for the decades leading up to PREA and the indifferent public attitude toward the violence tortured for the entirety of his first twenty-four hours that occurs within prison walls. However, the Bushin prison (U.S. Congress 2002)). Personal testimony era faith based initiative policy regarding social issues was especially powerful in gaining support for PREA provided conservative Christian interest groups because stories of prison rape provided a level of urgency to the bill. Both parties could agree that prison with an opportunity to define the issue as a moral rape is an immoral activity to permit. Not only was it a imperative while working alongside secular human rights groups such as Amnesty International and violation of Constitutional rights, but it could happen Human Rights Watch. The distinction between the to anyone incarcerated in the U.S. After hearing a definitions of the issue - as either a Christian moral particularly brutal story of prison rape, one testifier imperative or a civil rights violation - was not nearly explained: “There is not a single community in the as important as the transition of the interpretation country where you could not go and hear a variant of the tragic story that we heard today” (Saperstein qtd. in prison rape from a private to a public interest. While the academic literature on prison rape contributed the Senate Committee on the Judiciary, U.S. Congress little to the agenda setting stage of PREA’s formulation, 2002, 16). the scattered results within the literature at the very

Furthermore, in terms of partisan debate, least illustrated the need for more comprehensive the formulation of PREA was a relatively uneventful data on the horrors that happen behind bars in and undramatic process. The issue of prison rape American correctional facilities. By the time the issue was accepted as a moral issue on both sides of the of prison rape reached the ears of Michael Horowitz, spectrum, so a bill attempting to tackle the problem was not difficult to support. Generally speaking, PREA the political environment was so conducive to prison rape legislation that his efforts were rewarded with a was formulated during the genesis of a new attitude rapid and unanimous passage of the bill. The political toward prison reform policy. The changing attitude environment itself was rich soil for the legislation to toward prison reform in the political environment grow because the issue of prison rape was properly at the time created an easy avenue through which framed in both the public and political sectors outside powerful personal testimony could push PREA of Congress. In other words, though Horowitz served through Congress with unanimous support. as a vital linkage between Congress and interest groups to bring prison rape legislation to Congress, Conclusion the problem of prison rape itself was so well known

This paper has sought to answer two to lobbyists within the new political environment that fundamental questions regarding the development of a simple lunch and basic research on Horowitz’s part

Redemption of Shawshank? were all it took for that link to be created. Moreover, beyond its importance as the first major piece of legislation to address prison rape, PREA marked the beginnings of a new attitude toward larger prison reform policy.

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Struckman-Johnson, Cindy, David StruckmanJohnson, Lila Rucker, Kurt Bumby, and Stephen Donaldson. 1996. “Sexual Coercion Reported

by Men and Women in Prison.” The Journal of Sex Research 33 (1): 67-76.

Sasum, Christine A., Hilary L. Surratt, James A. Inciardi, and Rachael E. Bennett. 1995. “Sex in Prison: Exploring the Myths and Realities.” The Prison Journal 75 (4): 413-30.

Suellentrop, Chris. 2006. “The Right Has a Jailhouse Conversion,” New York Times, December 24. http://www.nytimes.com/2006/12/24/ magazine/24GOP.t.html?page wanted=1&_r=0 (Accessed September 10, 2014).

Smith, Brenda V. 2008. “The Prison Rape Elimination Act: Implementation and Unresolved Issues Torture.” Criminal Law Brief 3 (2): 10-18.

Stop Prisoner Rape. 2003. “Stories of Survival: Recognizing Rape Behind Bars,” Corrections. com, September 17. http://www.corrections. com/articles/10509-stories-of-survivalrecognizing-rape-behind-bars (Accessed December 12, 2015).

Struckman-Johnson, Cindy, and Dave StruckmanJohnson. 2013. “Stopping Prison Rape: The Evolution of Standards Recommended by PREA’s National Prison Rape Elimination Commission.” The Prison Journal 93 (3): 33554.

Sublime. 1992. “Date Rape.” On 40 Oz. to Freedom.

Long Beach, CA: Skunk Records. CD.

The Shawshank Redemption. 1994. Niki Marvin (Producer) and Frank Darabont (Director).

United States: Columbia Pictures. Film.

Thomas, Dorothy Q., Deborah Blatt, Robin S. Levi, Sarah Lai, Joanne Mariner, and Regan E. Ralph. 1996. “All Too Familiar: Sexual Abuse of Women in U.S. State Prisons,” Human Rights Watch. http://www.hrw.org/legacy/ reports/1996/Us1.htm (Accessed September 11, 2014).

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Pi Sigma Alpha Undergraduate Journal of Politics U.S. Congress. House of Representatives.

Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary. 2003. The Prison Rape Reduction Act of 2003. 108th Cong., 1st sess., 29 April.

U.S. Congress. Senate. Committee on the Judiciary.

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107th Cong., 2nd sess., 31 July.

Warren, Janet I., and Shelley L. Jackson. 2013. Risk Markers for Sexual Victimization and Predation in Prison. New York: Taylor and Francis.

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The Women’s Rights Movement in Afghanistan: The Absence of Scholarship and the Challenges of Practice Maryam Laly St. Lawrence University This article explores the women’s rights movement in Afghanistan, beginning with the status of women in Afghanistan in terms of literacy and the right to vote. The literature section reviews the concept of silencing of women in general and, in particular, the silencing of Muslim women and its relationship to Islam. The analysis section provides a brief history of Afghan women’s rights and presents perspectives on women’s rights movement and women’s groups through interviews with activists. The main argument is that the women’s rights movement has existed in Afghanistan and has been recorded to an extent; however, the literature documenting the movement is limited. Therefore, more extensive in-depth research is needed to fill the gaps and record this important subject.

Introduction

“Maa hama Farkhunda yem,” translated “We

are all Farkhunda,” repeated the women carrying Farkhunda’s coffin (Nawa 2015). On March 19, 2015, a 27-year old woman named, Farkhunda, was accused of burning the Quran1 in the center of Kabul at a wellknown mosque, Shah-Do Shamshira (Khan 2015).

As soon as the news spread, she was dragged out of the mosque, beaten, kicked, run over by a car, and then set on fire by a mob of angry men (Kaplan 2015).

This horrific incident was caught on camera phones, in video and pictures, documenting the violent acts.

The perpetrators, the policemen who stood by, and the crowd who ultimately killed her, are identifiable in these images that circulated social media within the few hours of the incident. The next day, social media and news agencies in Afghanistan covered the incident as a top story. Responding to media requests, her family initially suggested she was mentally ill, hiding her higher education and strong Islamic beliefs, to protect themselves and their reputation. However, the investigation soon revealed Farkhunda was innocent

and the family retracted their statements (Al-Jazeera 2015). With the news of Farkhunda’s innocence came an outcry which then became an avenue for women organizations and civil society agencies to come together and campaign for justice. On March 22, 2015, a crowd of Afghan women gathered to bury Farkhunda. In a rare act, the women did not allow a single man to touch her coffin, instead carrying it themselves to her grave (Kaplan 2015). This seemingly trivial act was very symbolic. It not only showed the women’s objection to the heinous crime committed by men, but also signified the capacity of women to mobilize and rally within a couple of days and overpower the men who, by social convention, would have carried Farkhunda’s coffin.

Additionally, the protests and campaigns for Farkhunda that followed portrayed another side of Afghanistan and the path to a growing conversation about women’s rights. Though a young woman was brutally murdered in the hands of a group of young urban men in Kabul in bright daylight, the rally of women activists, organizations, and groups to protest her murder signifies the empowerment of women.

The Women’s Rights Movement in Afghanistan These two images paint a complex picture of the reality in Afghanistan today. Since 2001, Afghan women have made modest gains. Women are represented in political, social, economic, cultural, and religious aspects of society. However, as Farkhunda’s story and many other women’s brutal killings and abuse illustrate, women’s rights movements in Afghanistan have many hurdles to overcome. Moreover, there has been remarkably little scholarship on the topic of the women’s right movements in the country. This

on Muslim women. The literature will be concluded with the role of Islam and Islamic feminism in regards to women’s rights. A research design provides details on the outline of the research. Finally, I will discuss my analysis of the findings on Afghan women’s rights movement and the struggles and works of current Afghan activists. The conclusion will summarize the research and the need for future work in this field.

Literature Review

manuscript seeks to explore why this might be the

Silence (in General and in Politics)

case.

The Women’s Rights movement in Afghanistan

officially began in 1964 and in 1965 women gained the right to vote and could stand for election (Emadi 1993; Women Suffrage 2014). However, from 1996-2001 these rights were revoked during the Taliban regime.

Since 2001, Afghan women’s status has moderately improved in the country. Women are not only able to receive an education legally, but also to run for office, although, these legal rights are too often trumped by cultural and economic impediments. Nevertheless, Afghanistan’s overall adult literacy rate remains the lowest in Southeast Asia and second lowest, after Burkina Faso, in the world (Indexmundi 2012).

Despite international attention on Afghanistan for the last three decades, there has been remarkably little scholarship written on the topic of the women’s rights movement.

The objective of this article is to explore the extent to which there is a women’s rights movement in Afghanistan, particularly how it emerged and why there has been such limited scholarship on the subject. First, I will explore the literature, highlighting the effects of silencing of women in politics, public spaces, and academia. Then, I will explore the concept of silencing within the women’s movement focusing

39

The literal and symbolic meanings of silence

and what it entails in different circumstances, among various people, and in diverse fields, have been studied and written about extensively. Some scholars view “silence” as a form of oppression, politically mandated towards certain groups of people. A public utterance of words gives the individual the opportunity to assert one’s point of view on a subject, or frame one’s identity and location (Luke 1994, 213). On the other hand, Luke suggests that literature has overlooked the use of silence as a positive notion. In her view, silence can be used as a form of resistance such as “a refusal to ‘confess’ and to ‘expose’ the self ” (Luke 1994, 213). Luke and many other scholars, suggest we must initially understand that women have different ways of speaking and different relations to language and knowledge (Belenky, Clinchy, Goldberger, and Tarrule 1986; Luke 1994). Women’s different voices are the consequence of their historical, socio-cultural, and economic relations to men (Luke 1994, 213).

Women’s silences should not be read only as passive and powerless. Cross-cultural research shows women use their small, audience-apolitical voices in strategic political ways to resist and subvert male power (Gumperz 1982). Susan Gal’s study has shown that “women’s use of ‘gossip’, poetry and song,

40 gesture and ritual, and even bilingual diglossia are

deliberate and purposeful. Feminist anthropologists

gain rights and women are not just submissive and obedient. Many of these scholars who write about silence in general also point out the necessity to be aware of cross-cultural differences in the meanings of silence, particularly within marginalized groups.

The following section explores the silencing of voices of women living under conservative and religious societies, particularly Muslim women.

reveal women’s silence in social anthropological

Silencing of Women in Muslim Countries

socio-cultural practices used to subvert and contest dominant, usually male, discourse” (Gal 1991, 175203). This is particularly true in Afghanistan where women use poetry and song, within their own gender circles, to express social and political thought (Cestari 2014). Therefore, women’s use of voice is far more

accounts is often refusal to reveal themselves to the anthropologists (who are often white males) (Moore 1988). Keeping in mind, women’s silence of specifically political speech does not mean that other forms of speech are resistance.

Another reason for women’s silence in certain

areas may be explained by lack of academic support both financially and psychologically. Luke (1994, 215) argues women’s “work” in the academy, as student, teacher, research assistant, and so on, continues to be under the “custody” of men. Luke (1994, 215) suggests that in order to fully bring women’s voice and silence, as a form of expression, to the forefront of academia, there needs to be a fundamental change in the way academia is structured. This is, however, relevant only when education and literacy for women is common.

In countries like Afghanistan, where women’s literacy is lowest in the world (Yacoobi, Dunlap, Lovelace, and Magrab 2012, 5), their voices and history are rarely heard or written about in the public sphere.

The literature on silence of women suggests,

historically, women were not represented in the public sphere, but used different methods to gain their voice in society. This literature is important because it constitutes authoritative evidence that silencing of women has existed and is still rampant in parts of the world like Afghanistan; however, it also portrays the ways in which women are using their voices to

Muslim women have historically been portrayed as submissive, oppressed, veiled, and illiterate (Macdonald 2006; Mohanty 1988). Cook (2008, 16-25) puts it bluntly, when she speaks of development workers/volunteers who travel to the “third world” and view the local women through an imperial lens as “oppressed,” and they see themselves as free and powerful. Cook argues this depiction is dangerous because “in these representations, Muslim women remain faceless and silent. They are absent objects, muted figures foreclosed. Others with no independent condition of existence” (Cook 2008, 1625).

Mohanty (1988, 342) agrees with Cook (2008), arguing that many scholars, especially those who have written about Arab and Muslim women, fall into this problematic trap of “an almost identical vision of women”. These scholars, according to Mohanty (1988) and Cook (2008, 342), speak of a vision of women shared by Arab and Muslim societies, ignoring their particular historical, ideological and material power structures. Both Mohanty (1988) and Macdonald (2006) bring the practice of veiling to their discussion.

They suggest the perception of the universal oppression of women through veiling is not only analytically and theoretically reductive, but also useless when it comes to political strategies (Macdonald 2006, 7-23; Mohanty 1988, 347). These assumptions

Pi Sigma Alpha Undergraduate Journal of Politics

41

and reinforcements of a ubiquitous “Muslim woman” further silence the group.

Macdonald (2006, 10-11) focuses on the residual influence of western colonial discourse of veiling and unveiling. The author emphasizes the representation of Afghan women post September 11th in the West by the media, politicians, and NGOs. She recalls the execution video of Zarmina in Kabul’s football stadium, secretly filmed by a RAWA (Revolutionary Association of the Women of Afghanistan) member. When the video was aired in the West and written about, most of the attention was

Middle East and South Asia, operate in a much more

on the plight of Afghan women and their oppression.

There were very few words written on the bravery of the Afghan woman who filmed the event (Macdonald 2006, 10-12). This is an example of silencing certain voices and contributing to the notion of western “savior” and eastern “oppressed” women. The courage of Afghan women who tirelessly resisted the Taliban was ignored and not given voice.

The general public must be careful of such narratives even within the Islamic world. As Moghissi (1999, 42) warns, “My concern . . . is that in the name of validating women’s ‘self-perceptions’ and ‘hearing women’s own voices’, only the voices of particular groups of women are heard and then these voices are broadcast as the unanimous expression of women in Islamic societies”.

Muslim women have found different methods to project their voices, one of which is through the religion, Islam. In the next section, Islam’s compatibility with women’s advancement and Islamic feminism will be explored.

countries (Esposito and Mogahed 2007). The survey

Is Islam Compatible with Feminism?

The question of Islam’s compatibility with women’s rights is relevant to this study due to the fact that most Muslim women, especially those in the

conservative political environment than women in other societies. This may pose further challenges to them in these conservative societies that are resistant to change. This subject has been controversial and much debated. The question has become even more prominent especially since September 11th and the role that Islamic fundamentalism has played in obstructing women’s rights in countries, such as Afghanistan during the Taliban.

In 2007, Gallup (Esposito and Mogahed 2007)

conducted a global survey of Muslims across 35 reported that most Muslims did not believe religiosity among Muslim men correlated with less egalitarian views toward women. Moreover, the survey did not find that Muslims believed women’s lagging status in much of the Muslim world was attributed to Islamic principles. “In Lebanon, Morocco, and Iran, men who support women’s rights are found to be more religious than those who do not support women’s rights” (Esposito and Mogahed 2007, 122-123). This does not suggest, however, that men have not used the excuse of religion particularly “Islam and Sharia Law”2 to silence women.

In 2013, a Pew Research Center survey reported that the social and political context in which Muslims live greatly influences their attitudes towards gender issues. As shown in Table 1, in countries where laws do not specify that sons should receive greater shares of inheritance than daughters, a majority of Muslims tend to support equal inheritance by sons and daughters (Pew Research Center 2013). For example, in Turkey, Bosnia-Herzegovina, and Kosovo where there is no such law, there is more support for the idea that all children should receive the same inheritance (Pew Research Center 2013). Conversely, as shown in

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Laly

Table 1, in countries where the law suggests that sons should receive greater shares than daughters, Muslims are less likely to favor equal inheritance as is the case in Jordan, Iraq, Morocco, and Tunisia (Pew Research Center 2013). Based on this survey report, laws are more correlated with political attitudes than any religious tenets-at least among the Muslims surveyed.

Muslims in the survey are not united on most

of the issues presented on women in society (Pew Research Center 2013). For example, in 13 of the 22 countries where Muslims were asked whether women should have the right to divorce, at least half of the respondents said a woman should have the right (Pew Research Center 2013). A majority of Muslims in Central Asia and Southern and Eastern Europe hold this view as seen in the Table 2: Turkey, BosniaHerzegovina, Kosovo, and Albania. Tajikistan was the exception with 30% (Pew Research Center 2013). This suggests that the challenge of women’s rights is less about religion, and more about cultural perceptions.

Furthermore, Table 2 shows that North

terminate a marriage (Pew Research Center 2013).

However, in Pakistan, Egypt, Jordan, and Iraq, the percentage of supporters are much lower. In Malaysia, as little as 8% believe women should be able to divorce their husbands (Pew Research Center 2013). Overall, the Pew Research Center (2013) poll suggests there is no unified “Islamic attitude” any more than there are unified “Jewish” or “Christian” attitudes across the world. Drawing on these survey data, a pattern emerges of regional cultural attitudes that impede the advancement of women in those most conservative societies. The Gallup (Esposito and Mogahed 2007) and Pew Research Center (2013) polling reports suggest that the general public and scholars need to look beyond seeing Islam as the root cause of women’s struggles. Rather, we need to understand the tradition of gender justice in Islamic societies, the differences within Islamic law, and the diversity of debates on the subject (Esposito and Mogahed 2007, 131). With this in mind, an exploration of feminist movements, especially Islamic feminism, is necessary.

Africa and South Asian attitudes are not uniform on

Islamic Feminism

women’s rights. In Tunisia, Morocco, and Bangladesh

Before defining Islamic feminism, the distinction between a “women’s movement” and a

more Muslims believe that women have the right to

Table 1. Muslims Supporting Equal Inheritance by Sons and Daughters across Selected Countries Countries Turkey Bosnia-Herzegovina Kosovo Jordan Iraq Morocco Tunisia

Support Equal Inheritance by Sons and Daughters 88% 79% 76% 25% 22% 15% 15%

Note: The percentage represent the self-identifying Muslims, men and women, who support equal inheritance by sons and daughters. These countries were selected by the author to show the variety of response and represent different regions surveyed.

Source: Pew Research Center 2013

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Table 2. Muslims Who Believe Women Have the Right to Divorce Aross Selected Countries Countries Turkey Bosnia-Herzegovina Kosovo Albania Tajikistan Bangladesh Pakistan Malaysia Tunisia Morocco Iraq Egypt Jordan

Wife Should Have the Right to Divorce 85% 94% 88% 84% 30% 62% 26% 8% 81% 73% 14% 22% 22%

Note: The percentage represent the number of self-identifying Muslims, men and women, who believe women have the right to terminate a marriage. These countries are selected by the author to show the variety of response and represent different regions surveyed.

Source: Pew Research Center 2013 feminist movement must be considered. Ferree and Mueller (2004, 577) define the “women’s movement” as “mobilizations based on appeals to women as a constituency and thus as an organizational strategy” whereas “feminist movement” is “defined as the goal of challenging and changing women’s subordination to men”. Women’s movement is inclusive in addressing all issues in which women are concerned. These issues may not have a gender focus. Instead, they might first be about a social and political issue. In other words, “women’s movements” are not always feminist (Ferree and Mueller 2004, 576). But the feminist movement utilizes feminist theory and strategy to solve women’s issues. “Feminism” as a movement and as a term has been debated for a long time (Ferree and Mueller 2004; Roth 2004). Both Ferree and Mueller (2004) and Roth (2004) mention that feminist movements are often viewed as the movement of white-middle-class

women. The latter view explains one of the reasons many women in the East do not identify with the word “feminism”. Nevertheless, there have been movements within feminism to counter this narrative for instance: the Black Feminist movement, the Chicana movement in the U.S., and the rise of Islamic feminism in the Middle East (Roth 2004).

Islamic feminism is defined as “a feminist discourse and practice articulated within an Islamic paradigm. Islamic feminism, which derives its understanding and mandate from the Qur’an, seeks rights and justice for women, and for men, in the totality of their existence” (Badran 2002, 17).

Badran (2013) argues there are two groups within the practicing Muslim women community: 1) those who identify themselves with Islamic feminism and advocate practice of the Quran for gender equality and social justice; and 2) those who do not call their

44 work Islamic feminism but, rather, consider it an Islamic project of re-reading the Quran with a women’s perspective (Badran 2013, 17-20). In other words, the latter group do not identify themselves as feminists.

They see the project of re-reading the Quran and other religious texts from a woman’s point of view – not as a feminist undertaking. Due to the controversial representation of feminism and its cause, the latter group of women do not identify themselves with the title “feminist”.

Due to the volatile circumstances in which Muslim women live and engage, most women who

advancement of women can be found within Islam, not only outside of it.

Contrarily, some scholars consider “Islamic feminism” an oxymoron. Haideh Moghissi (1999, 126141) argues that Islam is a religion based on “gender hierarchy” and the Quran and Sharia are incompatible with the principles of equality of human beings.

Moghissi (1999) claims it is not that Muslim women have not worked within the Islamic framework to gain their rights nor that feminism does not exist in the Middle East and Muslim societies. Rather, the author implies that Islamic feminism grew out of Islamism

act and think as a feminist tend to avoid feminist terminologies (Badran 2013). Their reasons are both political and pragmatic (Badran 2013). For women in Afghanistan and other more conservative societies, one reason for avoiding feminist vocabulary is the fact that the term “feminism” has often had negative implications, such as betrayal of one’s indigenous traditions for westernization as well as being disobedient of Islam and its long held cultural values.

In 10 out of the 23 countries the Pew Research Center (2013) surveyed, those who favored Sharia as the official law were more likely to agree that wives must always obey their husbands. Therefore, identifying as a feminist is often counterproductive and even dangerous because it goes against the presumed official law by so many in these countries.

Badran (2013) even goes so far as to argue Islamic feminism is more radical in its demands for women’s rights than secular feminism. Islamic feminism not only demands gender equality in the secular sector of public life, but also in that of the religious. Islamic feminists insist on women’s access to Islamic religious professions such as publicly leading a prayer. In other words, Islamic feminists push for equality in the most conservative, and restrictive spheres of public lives (Badran 2013). Thus, the

and Islamic fundamentalism. Moghissi’s (1999) fear is that to highlight Islamic feminism is to attach “only one of the many forms of struggle outside religious practices and silencing the secular voices which are still raised [despite the Islamification policies in the region]” (Moghissi 1999, 137-138). This suggests there is a generalization that Islamic feminism is the best and only option had by women in the Middle East.

Both Moghissi (1999) and Cooke (2001) agree that Islamic feminism is not the only response; however, it is considered to be one of the options for women to gain rights in their respective conservative and highly religious societies.

I have shown that there is still much improvement to be had with regards to women’s rights in Muslim societies, but this disparity in conditions is not necessarily due to Islam. The disparity in conditions suggests the issue is cultural-political, where culture and politics are more influential than other factors such as religion. One could argue that the solution can be found in the religion itself, rather than its complete rejection.

To summarize, silence can be both positive and negative (Luke 1994; Tannen 1992). It can be a form of resistance or a sign of fear. Silence can also have different forms of physical representation that produce

Pi Sigma Alpha Undergraduate Journal of Politics strong political statements, such as wearing certain forms of clothing, make-up, veiling or unveiling.

Women can and do silence other women (Cook 2008; Gal 1991). Western feminist discourse has been criticized for its lack of understanding of the “Other”. It has created and reinforced stereotypes of marginalized racial, socio-economic, and ethnic women (Cook 1988; Mohanty 1988; Roth 2004).

Muslim women have been represented as oppressed. The media, politicians, government agencies and non-governmental organizations all contribute to the creation of a “Muslim woman” whose voice is rarely heard. This crafting of a “Muslim woman” silences women who in their own creative ways might have built coalitions and resistance movements that might not have been thought possible in the vocal perspective of these agencies and media outlets.

Islam is not necessarily antithetical to feminism and women’s rights. There are many Muslim women who have challenged the patriarchal systems of Islamic countries using Islamic feminism. Although not all feminists who are Muslim consider themselves Islamic feminists, this version of feminism provides women in more conservative societies with an option to use religion to gain their rights.

Women in the Levant, North Africa, and Southeast Asia gained the right to vote as early as 1949 (Women Suffrage 2014) and since there have been extensive studies on women’s rights movements in the Middle East and in parts of Southeast Asia.

However, the scholarship is lacking regarding women’s rights movements in Afghanistan. I seek to examine why there has been such lack of scholarship on the subject of women’s rights movements both in and from Afghanistan.

It is, therefore, important to examine the extent to which there is scholarship on women’s rights in

45

Afghanistan; the activities and movements that are in place in Afghanistan as well as the collaboration among organizations and activists. I argue the shortage of scholarship is dependent upon the effects of silencing of women in Afghanistan, the lack of access to education, and, perhaps, the lack of funding of women related research in the Afghan society and among international scholars.

Methodology

My research on this subject is both qualitative

and quantitative. I base my analysis on books and journal articles, oral interviews with Afghan scholars and activists based in the U.S and Afghanistan.

To examine the scholarship on women’s rights,

I employed the online library of Afghan Research and Evolution Unit (see www.areu.org.af/), an independent research institute based in Kabul. Arthur Paul Afghanistan Collection at University of Nebraska at Omaha (see digitalcommons.unl.edu/afghanuno/) was another source from which I gathered articles, journals, and e-books in English and Dari for study.

Initially, I used keyword command and search terms (Keywords included: Afghanistan; women; women’s rights; women’s movement; Afghan women; feminism; Afghan). My keyword search and terminology searches in these online databases revealed close to 210 titles.

I went through each book, article, journal, and essay that were revealed in the search by focusing on the title, chapters, abstracts, and introduction to determine whether a book or article examined this topic at hand. However, upon closer study into each of these materials, it was evident that only about 45 books, articles, journal articles, and essays had touched upon the topic of women’s rights movement in Afghanistan.

The rest were primarily biographies, autobiographies, memoirs, and personal stories of Afghan women.

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To examine the sources for research funding on this topic, I searched for how much funding is available for research on Afghanistan in general and on women’s rights as opposed to security issues. I investigated the sources of funding for grants, fellowships, and scholarships given to study Afghanistan – especially women’s issues, using the previously mentioned library databases as well as some international and transnational organizations, such as the American Institute of Afghanistan Studies (see afghan-institute. org), Council of American Overseas Research Centers (see caorc.org), and Fulbright (see iie.org/Fulbright)

related to the variables and key themes of this paper such as: silencing, funding, Islamic feminism/women’s rights, secularism/religiosity, social perception, and education. The interviews ranged from 45 minutes to 2 hours, dependent on the interviewee’s willingness to share. Subsequently, I used the results and quotes based on the themes that arose from these six interviews which are discussed in the Results section.

and the various funders and donors of these programs that are detailed in the “Funding for Women’s Studies in Afghanistan” section. I focused on each of these organization’s funding patterns by examining the amount available for research and the funded topics covered by the researchers and fellows.

To gather perspectives on the women’s movement in Afghanistan, I contacted twenty-five women’s rights feminists and activists, requesting an interview through Skype or phone both in and outside of Afghanistan. These twenty-five interviewees were chosen by personal contacts that I had acquired over the years through following the works of Afghan women either by personal introduction to female activists or through various non-governmental organizations such as: Women for Afghan Women (see womenforafghanwomen.org), Young Women for Change3, Daughters of Rabia (see freewomenwriters. org), and Afghan Women’s Network (see awn-af. net). From the list of twenty-five interviewees, I was able to complete six interviews via Skype and phone.

From the six interviewees, two defined themselves as “feminists” and four considered themselves “activists”.

Each interviewee was asked a set of seven to ten questions. The Appendix shows that each question was

that there is a considerable amount of literature on Afghan women, including memoirs, biographies, and autobiographies with heart wrenching narratives often defined by stories of defiance and bravery. This search reveals, however, that there is remarkably little scholarship detailing the history of Afghan women’s movements and struggles for women’s rights. Still, it is evident Afghan women’s rights movements have been recorded, sporadically, since King Amanullah Khan’s modernization of Afghanistan in 1919. Since Afghan women did not actively challenge the status quo and fight for their rights before the early 1950s, the majority of these records do not precede this time. However, there are some instances of women’s passive resistance recorded in the form of poems and short stories that were published before this shift.

For example, Susan Gal’s (1991) study of women’s silence in different cultures showed that such silence is notable and should not be interpreted as submissive powerlessness, but rather a form of challenge. She concluded that women use poetry and share verbal stories among each other to undermine and disrupt male discourse (Gal 1991).

A key development in the women’s rights movement occurred during King Amanullah Khan’s

Results The Scholarship

A careful search of the prior research shows

The Women’s Rights Movement in Afghanistan

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rule through the work of his wife, Queen Soraya. She played a major role in promoting a more vocal and action-oriented Afghan women’s rights in society (Ahmed-Ghosh 2003; Gal 1991). Under her influence in the modernization of Afghanistan the first schools for girls were built in Kabul and then slowly across the country (Gal 1991, 38). She was also instrumental in establishing a women’s magazine, in which women’s issues and rights were featured (Gal 1991, 38).

However, the modernization efforts began to conflict with the wishes of the majority, tribal, poor, and rural mass, whose uprising resulted in the elimination of the

emerged: 1) the liberal movement, who were statesponsored and came from upper and middle class families; and 2) socialists, who were revolutionaries with the intention to transform the sociopolitical and ideological systems of the country and saw this route as the only means to achieve gender equality (Mehta 2002, 68). These women’s groups worked independent of each other, but what brought them together was their common enemy – conservatives (Mehta 2002, 70). During a demonstration in 1969 a young conservative man, Gul Mohammad, threw acid on schoolgirls’ faces. This event rallied more than five

king in 1929 (Gal 1991, 30-38).

Following Amanullah Khan, King Mohammad Zahir Shah rose to power and ruled from 1933 to 1973, declaring women and men equal under the law during his reign (Mehta 2002, 46-47). Yet still, similar to some other developing nations at the time, there was a gap between policies and their everyday implementation that resulted in inequality in Afghan women’s lives (Mehta 2002, 48). However, in 1964, a new constitution was drafted that guaranteed legal equality for women and with this new constitution and the election of Mohammed Daud Khan as prime minister of Afghanistan in 1953, women’s rights expanded (PBS 2011). This was visibly apparent in women’s fashion as Afghan women began to choose their clothing style from western mini-skirts to burqas (Mehta 2002, 49). During King Zahir Shah’s and Daud Khan’s eras, modernization led to educational opportunities abroad for women and men (Mehta 2002, 50). It is important to keep in mind that many of these newfound prospects were only accessible to the upper-middle class women of Afghanistan.

It was not until 1964 that organized women’s movements began in Afghanistan (Mehta 2002, 65).

At this time, two organizations of women’s rights

thousand women into the streets of Kabul where they demanded their rights to education and other basic human rights (Mehta 2002, 70).

Women’s ability to use their voices politically then increased further during political unrest between various Afghan socialist parties and then again with the Soviet intervention in 1979 (PBS 2011). During this time, women took an active role, mobilizing themselves on both sides of the divide to advance their political interests (PBS 2011). Women against the pro-Soviet government organized protests demanding release of their husbands and names of those who were killed by the government (Emadi 1993, 79-81).

Contrastingly, some women also organized movements supporting the Soviet control (Emadi 1993, 84-85).

These splits of women’s groups mirrored the country’s divided population.

Then, in 1996, the Taliban took control reversing the progress of vocal women’s rights. Under their rule they abolished all forms of education for women and established a strict sharia law in the country. Women’s rights activists and other civil society organizations were forced into exile or to work in hiding (Emadi 1993, 80-97). Many women’s organizations faced additional challenges to their fight

48 for gender equality (Emadi 1993, 98). Most of the upper class and intellectual women left the country for Western Europe and the United States and the middle class and poor women found refuge in the neighboring countries of Pakistan and Iran (Emadi 1993, 98).

Some of these women later become instrumental in advocating in the West for Afghan women following September 11th. A discussion of the current movement is presented in the next section.

Through Emadi’s books and research of various other scholars, who have recorded the women’s rights movement, it is clear that literature, on the topic of

overseas research centers, including in Afghanistan,

women’s rights movement in Afghanistan, does exist but it is very limited and difficult to access. Why is there such limited scholarship? Could lack of research funding be one of the reasons?

Afghanistan. These think tanks and organizations

to raise awareness of cultures, religions, and societies that are unexplored or under-represented. Carnegie Corporation of New York provides the funding for overseas research centers through the Council of American Oversees Research Centers’ Outreach on Islam and Muslim Cultures Project. Out of fifteen project examples, four of them had a focus on women and gender issues (Council of American Overseas Research Centers 2015).

There are also various think tanks and policy

organizations that have a focus or a program on focus on producing publications on security and political dynamics of Afghanistan and U.S. foreign policy towards that country (Institute for the Study of

Funding for Women’s Studies in Afghanistan

War 2015). However, few of these organizations have

Funding to study Afghanistan, specifically, women’s issues, does exist. There are several organizations that provide financial support to scholars, professionals, and students to research in and about Afghanistan. However the majority of funds provided for the study of Afghanistan are given to study security, governance, history, culture, and similar topics.

There are eight programs in total that provide some form of funding specific to Afghanistan. Two of the eight are purposed to study women’s issues and provide funds for research. The remaining six organizations contribute funds to study Afghanistan generally and can include women’s/gender issues.

For example, The American Institute of Afghanistan Studies has provided fellowships through the John Richards Fellowship program. The 2014 recipients received awards to address issues pertaining governance, security, and history (see afghan-institute. org/). Other organizations provide funds to different

women specific programs, such as those provided by the Council on Foreign Relations (2015). The Council has a Women and Foreign Policy program that specifically focuses on improvement of maternal health in Afghanistan (Council on Foreign Relations 2015).

Similarly, Kroc Institute for International Peace Studies (2015) provides scholars with funding to study peace and conflict in countries like Afghanistan. Some of their reports focus on women’s issues; however, there are no separate initiatives and specific fellowships on the topic. On the other hand, United States Institute of Peace (2015) is a similar organization, but has a center on gender and peace building. It works to bring issues of gender into the peace and reconciliation processes and Afghanistan is part of this project.

Women’s organizations in the U.S., such as the Feminist Majority, are supporters of Afghan women and their struggles. Feminist Majority started a campaign for Afghan women and girls to provide educational and outreach support to

Pi Sigma Alpha Undergraduate Journal of Politics Afghan women (feminist.org 2015). Additionally, they give instrumental humanitarian aid to women’s organizations in Afghanistan. Feminist Majority has been influential in lobbying on behalf of Afghan women in Afghanistan as well as attracting substantial funding for Women’s organizations and initiatives there (Feminist Majority Foundation 2015; also noted

by Marzia Nawrozi during Skype interview on January 25, 2015).

Although the majority of the financial backing

for Afghanistan studies goes to issues, such as security, governance, and similar topics, the findings above demonstrate there are funding opportunities and sources of money available for the study of women’s movements in Afghanistan. Thus, lack of funding cannot explain the limitation in scholarship. Further research is needed to explore possible explanations.

Perspectives on the Women’s Rights Movement

The consistent challenges noted by activists

in their work were the lack of education and literacy in Afghanistan. As stated earlier, illiteracy among women in Afghanistan is one of the highest in the world. Few of the activists mentioned that the quality of education can also explain the shortage of scholarship on the subject; namely, lack of critical thinking in Afghanistan’s educational system.

Cultural beliefs that persist as a result of illiteracy and absence of critical thinking become major hurdles that both men and women who work for women’s rights have to overcome. The ongoing conflict that produces insecurity in the country discourages foreign investment there. Thus, nongovernmental organizations that work for women often compete for limited sources of funding. This creates competition for scarce resources and animosity and lack of cohesion among women’s groups.

49

To address the first challenge, it is important to understand the role of educating women. Indeed, education is the key to providing women with the knowledge, everyday life skills, confidence, independent outlook and self-reliance necessary for their active participation in society. Literacy is a pivotal step in this process, as it provides practical results in a short period of time. Literacy is flexible, adaptable, and attainable by women of all ages. Literacy is a crucial component of all learning programs and achievement of other rights (United Nations Educational, Scientific and Cultural Organization 2013). Literacy rates for Afghanistan in 2011, on regional average, were 62.8% for adults 15 and older (74% for males and 51.9% for females). With better results among the youth between 15-24 years old of 80.7% (86.8% for males and 74.9% for females) (Central Statistics Organization 2012).

While this may not look excessively worrisome, it is particarly striking when one notes that Afghanistan is at the bottom of the world’s literacy rate, especially for women.

All the interviewees reiterated the importance of education and literacy for Afghan women and Afghanistan in general. According to Belquis Ahmadi (Skype interview March 27, 2015), an Afghan women’s rights activist and a senior program officer at United States Institute of Peace, ignorance and cultural perceptions perpetuated by years of conflict and illiteracy are fundamental challenges facing women’s rights movements. She made clear by repeating that investing in education, both formal and informal, will be a policy suggestion vital for the future. But the biggest challenge comes from culture and the conflation of culture and religion in Afghanistan.

Ahmadi reiterated, “Remember that women’s problems did not start with the Taliban and that is the reason it did not go away when the Taliban were ousted. We

50

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have a very long way to go.” The education system in Afghanistan does not promote any form of critical thinking; instead it is largely based on memorization and repetition. This contributes to a fundamental challenge for Afghans – they simply do not have the skills needed to question their life circumstance and consider alternative possibilities.

Nadja Milanova (Skype interview March 21, 2015), a public diplomacy expert and a human rights advocate, agreed that women’s education and literacy are crucial in any post-conflict society. She has been instrumental in bringing Afghan women

and Afghan diaspora women who went to Afghanistan from the West because there was a lack of basic understanding of the culture and societal norms that brought more project failures than advanced women’s rights in Afghanistan. The latter group traveled to Afghanistan with little consideration of the realities on the ground. This, according to Nassery, is a privilege that undermined the capabilities of the Afghans inside the country.

A third challenge is men’s resistance to the movement. That is, men who resist these activists because they fear that activists are, as interviewee

Parliamentarians to speak at the NATO headquarters in Brussels. She says these opportunities provide a platform on which Afghan women can voice their own opinions to the European Union and the world, thus getting around the culture of silencing women.

Education and literacy therefore are a privilege belonging to only a few in countries like Afghanistan.

This concept of privilege was a second issue that emerged during the interviews. As Belquis Ahmadi noted, “…my challenges differ from those who are living the day-to-day ordinary lives in Afghanistan.

Not that I am extraordinary, but I have privileges, so do most educated women.” That does not mean that educated women do not face challenges. Rather, some of the challenges come from the lack of awareness, acknowledgment and responsibility that each has to resolve and contribute to the solutions of these problems.

Afghan women who lived in Afghanistan or worked in refugee camps were the most successful in strategizing and promoting women’s rights. Homira Nassery (Skype Interview April 4, 2015), an Afghan American women’s advocate at the World Bank, speaks from experience while working in Afghanistan postSeptember 11th. The least productive were the foreign

Ahamdi notes, “…provoking women to rise against men”. Thus, often men do not admit that there is a societal problem, making it difficult to get them to be partners in confronting these issues. One of the biggest challenges confronting women was that men were excluded from these organizations and movements.

Those are lost years because men are needed in order to have security. The streets of Kabul are maintained by security. Belquis Ahmadi mentioned, “The street harassment in Kabul is not cultural per se; instead it is due to the decades of war and conflict in the country that has given rise to this concept “Be band-o-bar or loss of respect for rule of law.” There is a lack of understanding that what they are doing is harassment. Noorjahan Akbar (Skype Interview January 23, 2015), co-founder of Daughters of Rabia: Free Women Writers, spoke of the difference between how girls and boys are raised and its contribution to the reasons for inequality and gender based violence.

Girls are told that whatever comes to you, harassment and abuse, silently accept it but we let our boys know that they are the rulers and can do what they can.

Tackling the roots versus the surface of an issue is what is needed in the country. Silencing of girls starts at a very young age that then is embedded in their minds

The Women’s Rights Movement in Afghanistan

51

throughout adolescence (interview with Noorjahan Akbar 2015).

Men are not alone in resisting the women’s movement. Some women, too, are part of creating this hurdle for other women to achieve equal rights.

Activists face threats from both men and women.

Women also promote the laws that often go against their own safety and wellbeing. In my interview with Belquis Ahmadi, she gives the 2009 Shia Personal Status Law (Human Rights Watch 2009) as an example.

At that time, women were used to promote the law that would allow husbands to rape their wives and be

Nevertheless, there is some room for optimism.

Women’s groups may be going through the same phase that any organized movement goes through.

In my interview with Belquis Ahmadi, she points out: “I think we set the bar too high for women’s groups which are unfair expectations.” When the Shia Personal Status Law was being approved, many women’s organizations and civil society in general were organized and stood against this law. Ahmadi states that, “Right now, the voice that is coming out of Afghanistan is very much consolidated.” Not only inside the country but also outside, women are

protected from any charges. This relates back to the literature referred to previously that women participate in silencing other women.

This leads to a fourth challenge: the obstacles to consolidation between different women organizations.

Women’s organizations are rarely independent of donors and foreign support in Afghanistan. The system is built on inequality. Funding is short-term and for projects that are based on a timetable. This creates competition for funding and ultimately animosities are built as a result. Cooperation becomes even harder to achieve when competing over sources of money. These are the reasons Young Women for Change (YWC) has been exclusively run by volunteers and fundraisings have been based in Kabul. Anita Haidary, co-founder of YWC, in a Skype interview on January 31, 2015, said the challenges that arise from this method have been lack of volunteers and the ultimate need for foreign funding when a crucial project remains underfunded.

The old organizations saw YWC as a threat. YWC wanted mentorship and it was not easily provided.

YWC collaborated with organizations with similar views to itself, not necessarily women organizations but civil society groups like the Media and arts. These organizations were also crucial in fundraising events.

standing up together against injustice. It is really sad that it took Farkhunda’s story to bring women groups and also men together, but they are standing for justice nonetheless.

The lack of scholarship on the subject can be explained through any of the aforementioned challenges. Moreover, the concept of power and having a voice through knowledge was also discussed by some of the activists. The lack of scholarship can be explained by the history and culture of the country. In interview, Anita Haidary states that, “As a country, we have suffered from lack of documentation. We lack a culture of documentation and databases. There is also a lack of a writing, reading, researching, and training about culture in this country. People are not interested in subjects that do not provide much income.” People who have written about Afghanistan have been certain families and individuals who have made their names and family’s names by writing. It has almost been a family business or career. These hint at the lack of access to education and especially critical thinking.

Physical violence without rule of law and the enforcement of that law to keep women safe not only from mobs like the one that killed Farkhunda but also from family members like fathers and brothers

52 are crucial in the advancement of women in society.

During interview, Nassery noted the killing of a television anchor, Shaima Rezai, who was allegedly killed by her brother in 2006 in Kabul.

These activists and scholars have put much effort into bringing Afghan women’s voices to the world. Their involvement with various women’s organizations and/or international organizations from, Women for Afghan Women, Afghan Women’s Network, Young Women for Change, Daughters of Rabia, to NATO and the World Bank, have contributed to the women’s rights movement in Afghanistan. These

through various organizations and donors. However, it

women highlight the importance of gender advisors in military and political operations, ensuring women are represented in the peace process, combating street harassment and supporting the safety of abused women in shelters, requiring that women’s rights are met in development projects and so on. Security concerns and lack of safety are part of any social group and movement that operates in Afghanistan. Hence, every activist and scholar mentioned the security concerns as main challenges to their personal safety and the women’s movement. In addition, poverty, corruption, and the lack of enforcement of the rule of law have added to the challenges that these activists face.

In sum, women’s rights movements in Afghanistan have been sporadic and rarely collective, similar to the country’s fragile and divided history.

However, the recent protests in Kabul and across the country in solidarity with the victims of domestic abuse and the recent collective protests following Farkhunda’s assassination suggest that there is a vibrant movement. At times, these women’s organizations and civil society groups collaborate and come together.

Despite this, the movement has been recorded and written about by very few scholars and activists. And finally, funding for research in this area is available

patriarchy as early as the tenth century through the

is important to remember that this funding is limited and there are intense competitions among organization for funding. Almost all activists and scholars have cited the lack of education and critical thinking as part of the answer to why there is little scholarship. Further research is needed to document the movement in a consolidated manner and understand the gaps in literature.

Conclusion

Women in Afghanistan passively resisted

usage of poetry and songs. This passive resistance and the usage of strategic silence are still rampant in most of the country. Women’s rights movements formally started in 1964 when two different groups emerged in response to the political climate of the time. The recorded history and limited literature on the subject suggest that women’s rights movements existed in Afghanistan. The interviews with activists and scholars and the daily news that comes from Afghanistan also suggest that the women’s rights movement in Afghanistan is still widespread. However, literature on the topic of women’s rights movements in the country remains limited and comes mostly in the form of biographies, memoirs and poems rather than academic studies. While funding is mostly directed to research in the fields of security, war, governance, and other related issues, gender studies and a focus on women’s studies are also funded. Therefore, lack of funding alone does not explain the deficiency of scholarship on the subject.

The reasons this topic has not been extensively written about internally, meaning by Afghans/ from Afghanistan, can perhaps be explained by the challenges the activists mentioned. Lack of education,

Pi Sigma Alpha Undergraduate Journal of Politics low literacy rate, lack of security, poverty, and more than thirty years of conflict can contribute to the existing cultural practices such as: lack of reading, documentation, and appreciation for scholarship.

Another factor can also be the shame and humility this kind of study may expose. For example, interviewee Belquis Ahmadi faced Afghan women’s criticism because they did not want foreigners knowing about their domestic abuse issues. This tradition of not exposing the shame and humility that Afghan women face, could also explain the reason foreign scholars have rarely written about women’s rights movements

Overall, the shortage of scholarship is itself problematic, for without a more complete picture of where women’s movements have gained and where they have lagged behind, policies cannot be put in place that might produce better results. Therefore, a comprehensive study of this topic and collection of primary sources is needed to complete the documentation of this crucial topic.

in Afghanistan. Moreover, Afghan women’s resistance towards revealing oneself to men and foreigners and the use of silence as a strategic political statement may clarify the lack of scholarship as well. Other challenges could be explained through language barriers, access to information and contacts on the ground for nonAfghan scholars.

It is important to note some limitations of this research. Due to the fact that I was unable to travel to Afghanistan and conduct fieldwork, this research is limited in its capacity to answer the critical questions.

It was challenging to find individuals, activists, and scholars who were willing or able to be interviewed.

In addition, the lack of documented activities on the ground and the absence of fieldwork have restricted the conclusion of this paper and what it could have achieved otherwise. Throughout the research, I also encountered the perception that this topic has been written about and the work of written scholarship is known. However, every time I researched more deeply and got feedback from scholars and activists, their recommendations led me to memoirs, personal stories of Afghan women, history of the culture and specific traditions in regards to women. My data, therefore, cannot confirm any of the previously mentioned hypotheses due to the limitations of this paper.

believe it is a revelation from God and disrespect towards the text is considered a sin.

53

Notes 1

Quran is the central religious text in Islam. Muslims

Sharia Law is seen as a set of principles that guide a Muslim’s daily life including, financial, religious, and family obligations. Read more: An-Na`im, Abdullahi Ahmed (2008). Islam and the Secular State: Negotiating the Future of Shari`a. Cambridge, Massachusetts and London, England: Harvard University Press.

2

Young Women for Change is an independent women’s rights organization that was founded in 2011.

There is no functional website, but you can learn more about it through their Facebook page: https://www. facebook.com/YWC.af/ 3

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Capacity and Necessity: The Appropriateness of Judicial Policymaking in Affirmative Action Dylan Saul Macalester College The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is most appropriate when courts possess high capacity and necessity, this research proposes an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of courtsanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Therefore, courts must restrain themselves when engaging in such policymaking.

Introduction

The Supreme Court of the United States, rarely understood as a national policymaker, plays a fundamental role in the creation of American public policy. The public denounces the Court as a group of judicial activists, but remains attached to the antiquated notion that courts rule on law instead of making it. The coordinating branches of government downplay the Court’s hand in shaping public policy, so that they may retain a strong semblance of the separation of powers. The Justices themselves, particularly in Senate hearings to confirm their nomination, foreswear the very idea of engaging in policymaking while sitting on the bench. America has deceived itself into believing that courts are, to a significant degree, removed from the policymaking process. Yet in reality, judges from the highest to the lowest court in the land engage in public policymaking on a daily basis, merely by exercising the function of judicial review.

At least since Justice Marshall’s Marbury v.

Madison (1803) opinion, courts have used judicial review as justification for declaring legislative enactments null and void. A judge’s ability to rule

on the constitutionality of a statute “is not simply a matter of measuring a statute against crisply defined constitutional provisions but, rather, a policy-making process, in which judges engage after the legislators” (Bickel 1962, 36). Judicial review thus becomes not just a check on legislative and executive power, but the final stage in a policy-making process where the judiciary has the chance to “substitute its own program for a popularly sponsored one that it finds constitutionally deficient” (Choper 1980, 25). The popular notion that courts have a limited role to play in public policymaking cannot be sustained. Rather, Americans must recognize the Court as a simultaneously legal and political institution, frequently compelled to “choose among controversial alternatives of public policy,” a task which requires drawing on facts and values that may not be “deduced from precedent, statute, [or the] Constitution” (Dahl 1957, 281). Judges, whether we like it or not, possess a significant measure of policymaking capacity, and as Alexis de Tocqueville observed, many policy disputes inevitably find their way to the courtroom (de Tocqueville 1945, 280).

Assuming that judges do create public policy, the central question for political scientists and legal

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scholars becomes: when is judicial policymaking most appropriate? In other words, under what conditions is judicial intervention in the policymaking process conducive to an enduring policy solution?

I hypothesize that judicial policymaking is appropriate only when courts possess adequate levels of policymaking capacity, complemented by heightened necessity of judicial intervention in a policy dispute. Stated differently, capacity + necessity = appropriateness. Capacity is defined as a court’s ability to create an informed and feasibly enforceable policy solution. Necessity is measured by the extent to which

they represent. Below, each terms is examined in turn before analyzing their application to specific areas of public policy.

injured parties require judicial involvement in the policymaking process, normally reserved for the other branches. Appropriateness, the interplay of capacity and necessity, is operationalized as a court’s ability to produce enduring solutions to public policy problems.

A general discussion of judicial policymaking seems unlikely to draw fruitful conclusions. Instead, comparative case studies offer a useful way to test when judicial policymaking is most appropriate, and to sift out the common elements that correlate with more successful policies. Accordingly, in this work, a holistic model based on the hypothesis that capacity + necessity = appropriateness is developed. Each of these terms is further broken down into specific variables drawn from the scholarly judicial policymaking literature. The model’s important features are carefully illustrated by applying it to a comparative case study between affirmative action policy in higher education institutions and in K-12 public schools.

their bounds. For instance, in Swann v. CharlotteMecklenburg Board of Education (1971), the Supreme Court held that busing students to different schools was a constitutionally acceptable method of achieving racial integration in highly segregated public schools.

Lino Graglia argues that the judicially imposed Swann policy “would not be tolerated by the American people” if it had been advanced by the “avowedly political institutions of American government” (Graglia 1976, 16). If a legislature or a public school board had advanced the unpopular busing policy, public discontent would have clamped down on the policy or voted the responsible officials out of office.

The Court’s involvement, however, transformed busing policy from a political to a legal dispute that left public opposition with few options: either comply or move to a new school district. To formalists, the Court’s participation in the political process and engagement in policymaking is an inexcusable violation of the separation of powers, because courts generally do not derive their power from the consent of the electorate.

Modern formalists concede that a judge’s work is inextricably linked to law’s creation. Even Justice Scalia, the Court’s greatest critic of judicial activism, wrote: “I am not so naïve… as to be unaware that judges in a real sense ‘make’ law” (James B. Beam

Three Approaches to Judicial Policymaking

Three different schools of thought consider the courts’ capacity to create and implement public policy. I use the terms formalism, alternativism, and realism to describe these three approaches, but the terms themselves are less important than the ideas

Formalism

A long-standing formalist approach to law marginalizes the role courts play in shaping public policy. Adhering to traditional notions of the separation of powers, mandating that courts use the power of judicial review to decide the legality of statutes instead of making policy, and fearful that judicially active courts will pose a threat to democracy, formalists caution courts not to overstep

60 Distilling Co v. Georgia 1991, 549). However, a true formalist purports to “find” a legal solution strictly from legal texts, rather than allow social circumstances to sway their decision. From this perspective, courts not only lack the right to create public policy, but they lack the capacity to do so effectively. Formalists point to judges’ misuse of social science evidence and to their lack of enforcement mechanisms as the two primary faults in judicial policymaking. For example, the Brown court has been criticized for basing its decision on evidence that is “no more ‘scientific’ that the evidence presented in favor of racial prejudice” (Van den Haag

all the more necessary in the modern era of “interest group liberalism,” when our nation’s political leaders are increasingly seen as mouthpieces for campaign contributors and powerful lobbies (Lowi 1979).

Alternativism thus maintains that judges can and should make public policy to protect the rights and hear the voices of disenfranchised groups, despite the fact that judicial decisions are not guaranteed to be democratically supported or even effective.

Gordon Silverstein best encapsulates the alternativist approach, suggesting that groups will turn to the judiciary when confronted by institutional and

1960, 78). Brown v. Board of Education at Topeka (1954) also illustrates the courts’ inability to enforce its own decisions, for the judiciary was unable to achieve any significant degree of racial integration without help from the other branches. Even a decade after the Brown decision, only one in a hundred Southern black children attended desegregated schools (Rosenberg 1991, 52). Clearly, courts struggle to effectuate real social change when acting independently from the other branches (Baum 1980, 561). Formalists, then, assert that judicial policymaking is both inappropriate and ineffective.

political barriers in the other branches (Silverstein 2009, 15). Silverstein illustrates his point with the example of prison reform. Although Congress was well aware of the fact that many prisons were in need of modernization in the 1960, no elected official was going to jeopardize their career by urging voters to spend their tax dollars on prisoners. As such, “the courts seemed to be a plausible and perhaps the only plausible path around severe political barriers” (Silverstein 2009, 20).

The adjudication process, as a means of remedying perceived wrongs done to those with perceived rights, allows injured parties to circumvent a political process that often does not acknowledge those rights or wrongs because the political cost is simply too high. In the alternativist view, this distinguishing factor of courts makes judicial policymaking not only legitimate, but also, on occasion, highly appropriate.

Alternativism

The second approach to judicial policymaking allows room for the judiciary to create and implement public policy by suggesting that courts offer an alternative path for those groups seeking to push policy goals through the legislature or executive bureaucracy. Alternativists argue that minority, unpopular, unorganized or under-resourced groups lack the means to make their political voice heard in a purely democratic system, and that they find refuge in an adjudication system more concerned with their legal rights than with their political ideas (Neier 1982, 9). The Supreme Court’s political function becomes

Realism

Realists contend that, regardless of whether or not courts have the capacity or necessity to influence public policy, judges engage daily in policymaking just by exercising judicial review. In the minds of these scholars, “there is a substantial overlap between policy making and [legal] interpretation, and judges often

Pi Sigma Alpha Undergraduate Journal of Politics engage in both modes of decision making within the same opinion” (Feeley and Rubin 1998, 7). Divorcing courts entirely from policymaking, realism charges, denies courts their inherent power to “say what the law is” (Marbury v. Madison 1803 at 177).

Throughout the twentieth century, the Supreme

Court embraced the realist approach by creating policies that protect the civil liberties of marginalized social groups (U.S. v. Carolene Products Co. 1938, 155, Footnote 4). Scholars now agree that “deprived social groups have joined the advantaged in the march to the courthouse” (Horowitz 1977, 11) and some go as far as to suggest that “courts offer the best hope to poor, powerless, and unorganized groups, those most often seeking significant social reform” (Rosenberg 1991, 24). In this sense, John Hart Ely likens the Court to a referee, charged with regulating the political process to contain the threat of tyrannical majoritarianism.

Through their power to “clear the channels of political change,” Ely argues, courts facilitate public policymaking by giving discrete and insular minorities equal footing in the policy debate (Ely 1980, 73-77, 103). When it boldly shapes public policy to protect minority groups, a realist court forsakes its role of a referee reviewing the constitutionality of government policy, and enters the field itself as a major player.

Yet it would be a mistake to suggest that

courts only recently began shaping public policy. For instance, the Supreme Court had a hand in creating laissez-faire economic policy in the late nineteenth and early twentieth centuries (Lochner v. New York 1905). In truth, courts have always engaged in policymaking, and realists have long acknowledged that judicial intervention in policymaking can act as a “substitute for politics” (Shklar 1964, 17). Judges act as policymakers each time they render a decision, for policymaking is little more than “choosing among

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alternative courses of action,” which “everyone not totally disconnected from reality” surely recognizes that judges must do (Segal and Spaeth 2002, 6-10).

Acting on the realist assumption that courts mandate “not only what government [can] and [can] not do, but what it must do as well” (Silverstein 2009, 16), the question now becomes when courts are able to appropriately exercise this policymaking function.

Model: Judicial Policymaking

In this section, an original model is developed to answer the question: under what conditions is it appropriate for the courts to create public policy? Table 1 is based on the formulation that appropriateness = capacity + necessity. Capacity is the judiciary’s ability to arrive at an informed and feasible solution to a policy problem. Necessity is the extent to which the judiciary is forced to intervene in a policy dispute, regardless of the court’s capacity to do so effectively. Appropriateness is the overall measure of whether judicial involvement in policymaking is conducive to policy solutions that stand the test of time. A subtle relationship connects these three considerations, further complicated by the fact that capacity and necessity are broken down into six different variables. While heightened capacity can compensate for a relative lack of necessity, and vice versa, judicial intervention in the policymaking process is most appropriate when both factors are at their peak.

The first column of Table 1 breaks down both capacity and necessity into more specific variables used by many scholars to analyze various areas of courtsanctioned public policy. The four capacity variables are the main factors that directly influence the courts’ ability to create effective policy in their decisions.

When these four variables are present, the court’s ability to create legitimate and effective public policy in

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Table 1. A Model of Judicial Policymaking in Higher Education and Busing Generalism Bi-Polarity Capacity Variables Minimalism Legitimization Structural Impediments Necessity Variables Public Support Appropriate

Higher Education Low Low Moderate Moderate Low Moderate Moderate-Low

Busing Low Low Low Low Moderate Low Low

the given area should rise. The two necessity variables are the factors that require the courts to create policy (regardless of whether they have high capacity or not)

policymaking will be conducive to an enduring policy solution. That is, courts will have both the capacity to resolve a policy dispute, and the necessity needed

because the other branches are either unwilling or unable to create policy to address the given problem.

When both necessity variables are present, the court should be under greater pressure to create public policy, though not necessarily more equipped to take action. The variables selected are all firmly grounded in scholarly literature (see, e.g. Baum 2001; Chayes 1976; Horowitz 1977; Silverstein 2009; Sunstein 1999) and can be easily identified when reviewing a policy’s history, but they have never, to my knowledge, been incorporated into a holistic model.

Columns 2 and 3 in Table 1 delineates the two areas of public policy considered in this model: affirmative action in higher education and race-based busing assignments in K-12 public schools. For both areas of judicially-mandated public policy, all six variables are given a categorical ranking of low, moderate, or high. A low ranking means that the variable was not present or hardly at all present as a factor in the given policy area; a high ranking, just the opposite. Although I sought to avoid giving moderate rankings, they were given in cases where scholarly opinion on a policy was decidedly mixed.

Finally, each policy area receives an aggregate appropriateness ranking. If appropriateness is high, it is hypothesized that court intervention in

to make their verdicts legitimate. If appropriateness is moderate, it is predicted that court decisions will solve some deficiencies in a public policy, but progress will be hampered because the courts overstepped their bounds, or fought prevailing public opinion, or some other reason. If appropriateness is low, it is hypothesized that the courts would do better not to get involved. The courts will struggle to create policy solutions, the policy will be met with considerable resistance, and quite possibly, the policy will lead to counter-productive results. In the next section, a brief analysis of each variable, particularly generalism, bi¬polarity, minimalism, legitimization, structural impediments, and public support, is presented.

Assessing Judicial Policymaking

Reframing the question of judicial policymaking from a normative debate to a question of judicial capacity, Donald Horowitz (1977, 18, emphasis in the original) questioned not “whether the courts should perform certain tasks but whether they can perform them competently.” A wave of scholarship has engaged this question, producing a disparate range of issues that can be unified into a holistic model to analyze judicial policymaking. This model, as laid out in Table 1, incorporates six elements drawn

Capacity and Necessity from scholarly literature: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support.

The first variable considered is generalism. Most judges are “generalists” to the extent that they must hand down decisions on any case before them, even if they lack the social or technical knowledge required to make an informed policy decision (Horowitz 1977, 31). Often forced to rely on amicus briefs or expert witnesses to attain any specialized knowledge, judges’ interpretation and use of such information in policy-making is heavily criticized (Strum 1984, 24).

For example, courts attempting to create educational policy have been accused of “lack[ing] an awareness of the complex, multifaceted process of education” and “disregard[ing] the development of children the perspectives of families and communities” (Lightfoot 1980, 4). Judges themselves admit as much (U.S. v. Jefferson County Board of Education 1966, 855).

In education, as in any other specialized area of public policy, judges often lack both relevant social or technical information and the training to put such information to effective use. It is reasonable to hypothesize that judges’ policymaking capacity will rise when the case before them is general in nature – when it contains a minimum of social or technical information.

Bi-polarity, a term employed by Abram Chayes (1976) and the second variable considered, refers to disputes between two parties where one has wronged the other. Judges easily resolve such disputes by deciding the appropriate remedy owed to the injured party (Horowitz 1977, 34). The difficulty is that, in modern adjudication, many cases are not bi-polar but “multi-plural.” These lawsuits are “not a dispute between private individuals about private rights,” as Chayes puts it, “but a grievance about the operation of a public policy” (Chayes 1976, 1302). Such cases are

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brought to court by multiple groups, each alleging to have been injured by a public policy, thus frustrating the judge’s ability to assign blame or award damages.

A multi-plural case involving a multitude of interested or injured parties, requiring the judge to balance the impact a court policy will have on each one, will necessarily make the policy-making process more difficult. A bi-polar case, by contrast, should raise the court’s capacity.

Capacity also raises when courts advance minimalist policies. As used by Cass Sunstein (1999), minimalism encourages judges to advance a policy in small steps, over a series of related cases. By issuing “narrow, incremental” decisions instead of “broad rulings that the nation may later have cause to regret,” courts restrain themselves from invalidating too many laws, instigating too many unforeseen consequences, or requiring too much action on the part of the implementing populations to be feasibly enforced (Sunstein 2005, xiii.) This minimalist rule of thumb allows judges to render decisions specifically tailored to the cases before them. By erring on the side of caution and deciding a case solely on the issues before them, judges should be able to produce narrow policies that provide maximum benefits for the target population with minimal government action.

Judges must also consider the degree to which their policies depend on the legislative and executive branches for legitimization. The judiciary largely lacks the power to enforce its own decisions, and a ruling that relies on extensive enforcement from the other branches diminishes the power judges possess over their own policies. Alexander Hamilton famously wrote in his Federalist Papers that the judicial branch “has no influence over either the sword or the purse,” and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments” (Hamilton and Rossiter 1961, 465). While some

64 decisions are relatively self-enforcing, it is true that “the judiciary, having no budget, no power to tax or to create new institutions, has much less ability to experiment or to adjust its techniques to the problems it confronts” (Horowitz 1977, 35). It should be noted that Congress faces similar enforcement issues, for “implementation of statutes is far from automatic” (Baum 2001, 226, 241). However, Congress at least possesses the power to levy taxes, subsidize compliance, or create bodies to oversee its policies, whereas courts’ “power to command consent” comes primarily from citizens’ continuing belief in the rule of law, the belief that judicial decisions are based on principles “which bind the judges as well as the litigants and apply consistently yesterday, today, and tomorrow” (Shapiro 1969, 101). Most judicial policies therefore rely, at least to an extent, on the considerable enforcement mechanisms of the coordinating federal branches and on the compliance of local government officials (Dahl 1957, 293). Judicial policies that are easily legitimized ought to be the most successful.

In keeping with the alternativism approach, courts offer an alternate path for policy goals blocked by structural impediments in the other branches.

Structural impediments, such as corruption or partisan deadlock, prevent many policies from making it through the legislature, but majoritarianism poses the most significant barrier. Minority groups who are too small or too unpopular to make their voice heard in the representative branches of government must take their cause to court. Judicial policymaking thus becomes most defensible when “courts offer the only viable path to get around fundamental institutional barriers,” but most problematic when it “dilutes or deflects the ordinary political process” (Silverstein 2009, 29). When the political process provides a viable route to realizing policy goals, courts ought not to involve themselves. However, when the coordinating

branches are made inoperable by structural impediments, judicial policymaking necessity will rise to a boiling point, and the courts will have to act.

Finally, despite the insistence that judges be

kept insulated from partisan pressures and public opinion, judicial policies cannot survive without public support. This is particularly true for appointed federal judges, as there is seemingly little motivation for judges to appease the public. However, the Supreme Court rarely resists “a really unmistakable wave of public sentiment” for very long (McCloskey 1960, 23). Swimming against the tide of public opinion, and taking a “sustained policy position that lacks significant support outside the Court,” invites intense public scrutiny of judicial decisions (Baum 2001, 214).

In order to maintain their legitimacy, then, courts must indulge public opinion by creating popularly supported policies. When public demand for a policy solution grows especially strong, courts will feel compelled to participate in policymaking. Although there is no guarantee that courts will have high capacity when creating these policies, it is predicted that judicial policymaking necessity will rise in tandem with public support for court action.

Case Study: Affirmative Action in Education

Having proposed six variables for assessing the appropriateness of judicial policymaking, I turn to an overview of judicial participation in affirmative action policy. Table 1 applies the policymaking model to the Supreme Court’s affirmative action jurisprudence. This analysis focuses specifically on educational affirmative action policies, which are defined as “policies that offer individuals deemed to be affiliated with a beneficiary group a preference over others in competitions for,” apart from jobs and government contracts, “education” (Kennedy 2013, 20).

Pi Sigma Alpha Undergraduate Journal of Politics

Two affirmative action educational policies come into focus: judicial corrections to highereducation admissions programs, and court-imposed busing plans for K-12 public schools. Scholars dispute the extent of judicial involvement in both policies. J. Harvie Wilkinson argues that while busing is a “courtcontrolled,” “race-conscious remedy,” affirmative action policies in higher education are “neither courtcontrolled nor court-compelled,” because higher education institutions “voluntarily [took it upon themselves] to redress past racial wrongs” (Wilkinson 1979, 275). However, this account belittles the central role that the judiciary played in developing higher education affirmative action. If, in the 1970s, the Supreme Court sanctioned the consideration of race in admissions policies, then by the 1990s, “the Court was proscribing affirmative action plans it once sanctioned” (Naff 2004, 424). Regardless of whether these policies were voluntarily adopted or judicially mandated, both were developed and implemented by the judicial branch, acting in a non¬traditional policymaking role, and both were intended to provide minority students with increased access to equal educational opportunities.

Several interesting differences between the two policy areas remain apparent. The Court’s higher education jurisprudence concerns individual applicants seeking admission to selective institutions, while its busing cases were all brought by organized groups or entire school districts protesting race-based school assignments. Plaintiffs in higher education cases typically ask the Court to strike down racial quotas; the Court, in busing cases, often feels compelled to do just the opposite. In the end, however, busing and higher education affirmative action alike aim “to overcome societal discrimination affecting minorities irrespective of whether nefarious intent can be proven”

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(Leiter and Leiter 2002, 114). In its busing decisions, as in its higher-education adjudication, the Supreme Court sought to provide a remedy for the harm caused by generalized discrimination against minorities seeking equal access to education. Judicial involvement in higher education admissions and in K-12 busing plans, therefore, both conform to the above definition of educational affirmative action policies.

Tracing the judicial history of these two policy areas, and comparing their performances in the model, will provide insight on when, or if, judicially created race-based remedies can successfully counteract educational discrimination.

Affirmative Action in Higher Education

Justices ruling on higher education affirmative action cases are asked, at some point, to determine whether or not a rejected applicant deserves admittance to a higher education institution.

“Courts,” Gerald Rosenberg argues, “encounter particular difficulties when they try to reshape highly complicated institutions,” because they lack institutional expertise (Rosenberg 1991, 19). When determining whether Allan P. Bakke ought to be admitted to the University of California, Davis School of Medicine, in the landmark case Regents of the University of California v. Bakke (1977), the Court needed to review Bakke’s application, compare it to competing applications, and assess the schools admissions program as a whole. The Court must, in short, perform the tasks assigned to the institution’s own trained admissions staff. “Judges are trained in the law,” as judges themselves point out, “they are not penologists, psychiatrists, public administrators, or educators” (Johnson 1981, 274). The Court is nevertheless asked to go beyond its generalist knowledge in crafting higher education policy, an area of which it knows nothing.

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As a conflict between a school and a rejected white applicant, higher education affirmative action cases seem bipolar. However, this first impression conveys anything but the truth, because every student or applicant to the institution has a vested interest in the school’s admissions policy, as do the students’ future employers. The widespread public interest and debate over affirmative action cases “climaxed a trend toward public litigation” (Wilkinson 1979, 260). In the Bakke case alone, a record-setting fifty-eight briefs were filed (Weaver 1977), a record smashed by the one hundred and two amicus briefs submitted in the

the Court were to issue a broad ruling that foreclosed democratic debate” on so salient an issue as affirmative action (Greenberg 2002, 616).

The Court’s rulings have done little to stifle public debate over affirmative action in higher education, and several states have not been shy to fight back against the Court’s tolerance for minoritypreference programs. California’s Proposition 209, passed in 1996, states: “The state shall not discriminate against, or grant preferential treatment to any individual or group on the basis of race [in] public education.” Similarly, state legislatures have pushed

companion cases Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003) (Devins 2003, 366). The fact that everyone from the U.S. military to General Motors filed an amicus brief illustrates the multi-plurality of these decisions.

The Court advanced its higher education policy incrementally, largely due to the Justices’ own inability to agree on what standard of constitutional scrutiny to apply to affirmative action cases (Leiter and Leiter 2002, 5). The Justices’ lack of cohesion resulted in many split decisions, “often without majority support for the reasoning upholding the decisions, and with sharp differences among the Justices” (Leiter and Leiter 2002, 54). Unable to speak in unison, the Court could not take a strong stance on affirmative action, leaving school admissions officers themselves with considerable power to decide the impact of the Court’s policies (Dorsen 1978, 15). For instance, educators estimated that after the Bakke decision, 90% of existing higher education admissions programs remained constitutional under Justice Powell’s test (Wilkinson 1979, 302). Intentionally or not, the Court minimized the breadth and sweep of its own opinions through in-fighting, compromise, and deference to the implementing populations. This is a fortunate occurrence, as “it would be a democratic disaster if

back against Court rulings that validate considering race as a factor in admissions, with Texas and Florida adopting “Top 10 Percent” plans to automatically grant admissions to students graduating in the top 10 percent of their high school class, regardless of their race (Bronner 1998; Connerly 1999). Higher education institutions, by contrast, have rarely fought the Supreme Court’s decisions outright, choosing instead to superficially modify their unconstitutional admissions programs, or maintain them in secret.

“Virtually all universities and professional schools,” after the Bakke decision, “maintained their program for minority admissions,” and secured “roughly the same percentage of minority students each year” (Schwartz 1988, 115). Whether through direct confrontation or indirect avoidance, officials at the local level have not legitimized the Court’s rulings.

On a national level, however, the legislative and executive branches have deferred to the Court where affirmative action is concerned. No President has taken a strong stance on affirmative action in higher education, wary of ensuing controversy. Even the Reagan administration’s opposition to affirmative action policy prompted only a change in the rhetoric of affirmative action, not a change in affirmative action policy itself (Williams 1996, 253). Bill Clinton’s “low-

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key” approach to affirmative action could be summed up by his “mend it, don’t end it” philosophy (Harris 1995; Skrentny, 1996). George W. Bush also chose to follow the Court’s lead: he “applauded the Supreme Court” on maintaining the “careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law” after the Grutter and Gratz decisions (Lewis 2003, A23). The U.S. Congress, like the executive branch, elected to remain on the sidelines while the Court waded deeper and deeper into affirmative action juridification. To this day, “Congress has failed to reverse any of the

seems unable to decide if affirmative action in higher education should stay or go, thus limiting their ability to demand a judicial answer. A 1977 Gallup Poll conducted concurrently with the Bakke case found that while Americans oppose “preferential treatment” through affirmative action, they largely favored other publicly financed means of aiding minorities (Gallup 1977). Despite consistently documenting opposition to formal racial discrimination, studies conducted concurrently with Grutter and Gratz found that only 35% of Americans thought that race should be considered in college admissions, whereas 60%

Supreme Court’s affirmative action jurisprudence” (Naff 2004, 423). Legitimization of the Court’s higher education policy, lacking at the local level and cautiously supported at the national level, indicates a moderate record of success for the Court’s higher education decisions.

Despite the relative lack of action on the part of the coordinating branches, there is no discernable reason why the judiciary needed to intervene in higher education policymaking, especially considering the Court’s indecisiveness as to the constitutionality of race-conscious admissions programs. Disgruntled, rejected applicants face an uphill battle in gaining admission to the school of their choice without courtorders, but there are other options available to them.

Voters in California and state legislatures in Florida and Texas, for example, have proven sympathetic to demands to re-think affirmative action in higher education (Greenberg 2002, 538). The coordinating branches’ reluctance to engage in affirmative action policymaking, then, is more a function of their willingness to let the judiciary bear the burden than it is evidence of structural impediments.

Nor has there been widespread public support for judicial intervention in affirmative action. The American public (like the Supreme Court Justices)

believed that admissions should be based entirely on merit (Persily, Citrin, and Egan 2008, 164). Americans seem to desire equal opportunity of access to higher education in theory, but are unwilling to implement it in practice. Or possibly, they disagree on the true definition of “equal opportunity.” Either way, “in 2006, as in 1978, most Americans favor equal rights and equal opportunity, but they oppose the use of preferential treatment for particular groups to achieve those ideals” (Persily, Citrin, and Egan 2008, 166).

These conflicting feelings suggest moderate public support for affirmative action in higher education, perhaps pressuring the Court into taking its middleof-the-road approach in Bakke, and preventing it from killing affirmative action in Fisher v. University of Texas at Austin (2013). In the aggregate, the appropriateness of judicial intervention in higher education affirmative action is moderate-low (See Table 1).

Affirmative Action in K-12 Busing

The Court’s busing decisions in cases like Swann v. Charlotte-Mecklenburg Board of Education (1971) arose out of the need to force school districts to comply with desegregation. The judicial takeover of bus routes, which had previously been set by democratically accountable school board

68 representatives, was expensive, involuntary, and inconvenient (Graglia 1976, 17).

Not only were local courts unaccountable to the public, they had no experience in creating integration plans and were thus forced to rely on social science evidence to justify busing and racial quotas.

While “it would be an exaggeration to say [the social sciences] are responsible for the busing dilemmas facing so many communities today,” social science research has “been inextricably interwoven with policy decisions” (Armor 1972, 91). Early social science evidence persuaded the Justices “that the mixing of the races in itself will invariably have positive educational and social consequences” (Hawley and Rist 1975, 413, emphasis in the original), but no study has ever proved “that integration has had an effect on [minority] academic achievement as measured by standardized tests” (Armor 1972, 99). Scholars charge that courts’ obsession “with questions of quantity rather than quality, with mathematical rations, quotas and balance, rather than with the educational process itself,” has caused more harm than good to students of both races, and has done little “to translate desegregation into integration,” the true task at hand (St. John 1975, xii). These realities depict the Court’s difficulty in interpreting social science data and grounding its decisions on such evidence. In its pursuit of statistical racial balance, the Supreme Court violated the principle of generalism by relying primarily on social facts, rather than on constitutional principles, to justify its busing policy.

The drawing of new bus routes for every student within a de facto segregated district also required courts to balance a plurality of interests.

The distance that each individual student within the district would be required to travel now factored into judicial decisions. Busing was no bi-polar conflict, but a policy that affected everyone, and “everyone

suspected that they, personally, bore the brunt of the busing” (Wilkinson 1979, 156).

As courts grew ever more insistent on using racial quotas to achieve balance in public schools, it became clear that schools themselves were not always the ones responsible for causing segregation. Rather, “it was simply school racial separation or imbalance itself, however caused that had become unconstitutional” (Graglia 1976, 16). Determined to integrate schools where no formal proof of racial discrimination or transgression could be found, the Court moved further and further away from minimalism. Tackling de jure segregation in Brown v. Board of Education of Topeka (1954) was challenging enough, but dealing with subtler de facto segregation required ever more complex busing schemes, as school districts remained stubbornly segregated due to housing discrimination and “white flight.” The Court recognized the enormity of the task it faced when asked to integrate the predominantly black Detroit public schools in Milliken v. Bradley (1974), holding that school districts could only be made to desegregate upon proof of racist intent. This decision was a retreat for the Court, a realization that its busing policy was not minimalist, and thereby difficult to enforce in the face of public opposition (Marshall 1989, 147-155).

Under the supervision of district courts, school boards were forced to comply with judicial busing policy, but the degree of implementation varied across the nation (Johnson and Canon 1984, 3). District courts lacked legitimacy when they assumed control of bus routes, because bus routes were traditionally “democratically conceived and democratically implemented” by the democratically elected school board (Wilkinson 1979, 135). Judicially imposed busing plans were not only inconvenient; they were also contrary to democratic principles.

Max Weber, Seymour Martin Lipset, and others have

Pi Sigma Alpha Undergraduate Journal of Politics argued that government derives its legitimacy from public perceptions that the political system is acting appropriately (Marshall 1989, 136). Since the unelected Justices took un-democratic action by imposing a policy that interfered with Americans’ daily lives, and which few Americans wanted in the first place, the Court reached far beyond its accepted boundaries. At its best, argues Martin Shapiro, “judicial policymaking contributes to well-rounded representation of interests or to popular control” (Shapiro 1964, 46). Courtcreated busing plans contributed to neither, costing courts a large measure of legitimacy.

Furthermore, the Court was forced to rely on both local courts and school boards to enforce its busing requirements. To be effective, the Court must communicate its policy goals to both groups clearly (to prevent misinterpretation) and persuasively (to prevent avoidance.) Supreme Court decisions can be difficult for even other judges to interpret. The Swann decision, for example, “although unanimous, was rather confusing” (Johnson and Canon 1984, 49). The decision affirmed the district courts’ power to achieve integration through busing, but stated that “no rigid rules can be laid down to govern conditions in different localities” that the “very limited use of the racial ratio” could be used only “as a starting point in shaping a remedy” and that the “limits on travel time will vary with many factors” (Swann v. CharlotteMecklenburg Board of Education 1971, at 25, 29).

Lower courts were understandably confused by such vague guidelines (Armor 1995, 158-160). While “most judges accord the Court considerable authority,” the same cannot be said for the school administrators, for “administrative agencies are somewhat removed from the judicial system,” and so “the Court’s authority tends to decline as organizational distance from the Court increases” (Baum 2001, 238-241). Since the effectiveness of the Court’s busing policy depended

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on a long chain of compliance from other courts and administrators, the policy’s legitimacy was impaired from the start.

The representative branches of government, had they led the charge on public school integration, would have at least avoided the anti-democratic drawbacks of court-imposed busing. However, once the judiciary affirmed the power of district courts to supervise busing plans, the coordinating branches faced a choice between supporting a wildly unpopular policy and using courts as a scapegoat for political gain. The choice was easy. For school administrators, implementing court busing plans both “threatened to erode the [school] board’s local standing” and “required expenditures the school system could ill afford” (Wilkinson 1979, 155). For state legislators, meanwhile, the goal was to gain votes through inciting indignation over busing schemes handed down from up high (Wilkinson 1979, 168). Even at the federal level, coordinating branch support of court busing policy was lacking. Congress sought to “prohibit federal agencies from requiring school busing for desegregation” starting in 1968, and continued to “limit the issuance of busing orders by federal courts” after Swann (Baum 2001, 230). School boards and legislatures alike were unwilling to force school integration, but only too willing to capitalize on the political gains of undemocratic judicial intervention.

With overwhelming evidence that courts were illsuited to create busing schemes, the presence of these structural impediments meant that courts were also the only ones willing to do so.

Parents, black and white, were outraged at the idea of their children being bused across the city to improve racial balance when there were schools half a mile from home. A Gallup Poll from 1970 found that only 14% of adults supported busing for the purpose of racial integration, whereas 81% were opposed

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(Persily, Citrin, and Egan 2008, 36). While much of the opposition came from whites, black families were also frustrated with busing plans. Inevitably, the bulk of the busing burden was placed on them, as black students were bused further away from home in response to “white flight” from predominantly black areas (Holmes 1997, A1, A15). Justice Thomas’s concurring opinion in Missouri v. Jenkins (1995) gave voice to this sentiment by condemning “the idea that any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites” (Missouri v. Jenkins 1995, 119). Unfavorable to both white and black

busing policy simply affects more students than higher education policy, and there are correspondingly more students in need of a remedy for racial discrimination.

This economic and social reality warrants a massive policy remedy beyond judicial purview. Courts “lack the tools to deal effectively with these ‘relatively’ uncontrollable social and environmental factors,” and providing a more taxing remedy to a greater number of injured parties only requires more effort on the part of the judiciary and the coordinating branches (Rosenberg 1991, 104-105).

It is, of course, impossible to overlook the

parents, court-created busing policy received pitiful levels of public support. In sum, the appropriateness of court intervention in remedying school discrimination

racial dimension of these decisions. All of the higher education cases here examined were bought by white claimants, alleging some form of reverse discrimination at the hands of biased admissions programs. By contrast, the principle issue in the K-12 affirmative action cases was the discrimination that African-American students suffered under segregation.

It is entirely plausible that white Americans would be more supportive of a court decision that requires suspect admissions programs to overcome a strict scrutiny test than a decision that requires racial balancing in public schools. As a result, judiciallymandated higher education affirmative action might find more public support among whites than K-12 affirmative action policies.

Another clear, but overlooked difference, between higher education and K-12 affirmative action cases is that all the universities at issue here are competitive institutions. Students compete vigorously for admission, but the universities themselves also compete to attract qualified minority students (Leiter and Leiter 2002, 142). Public schools, facing the obligation to educate every student within the district, have no incentive to attract more. This could explain administrative reluctance to comply with an integration plan that would entrust more students,

through busing policy is low.

Findings

The model makes it clear that the judiciary’s higher education affirmative action policies enjoyed comparatively more success than their K-12 busing plans. But what causes the disparity in effectiveness between the two types of affirmative action cases? The most obvious explanation for the difference is the fact that higher-education affirmative action cases involve a simpler remedy, and a smaller number of students and adults. In cases such as Bakke, Grutter, Gratz, and Fisher, the Court has been able to remedy any injury caused to an applicant by ordering their admission and invalidating whichever parts of a university’s admission plan it deems unconstitutional. In K-12 integration cases, however, the injury of segregation cannot be cured until an entire school district, or even a metropolitan area, has been integrated through proportional-representation plans which the courts must create, direct, enforce, and constantly re-evaluate (Keyes v. School District #1, Denver, Colorado 1973; Orfield and Eaton 1996, 21-22). At the end of the day,

Capacity and Necessity particularly minority students, to their responsibility.

A court decision allowing a graduate school to continue operating essentially as before, with a reminder not to put too much weight on an applicant’s race, invites no administrative deliberations, creates no financial strife, and requires no external oversight to enforce. Such a decision involves far less legitimization.

In sum, Table 1 offers three explanations for the relative success of judicial involvement in higher education when compared to K-12 court-ordered busing. The first proffered explanation highlights the importance of the minimalism variable – a judicial policy that is sweeping in scope will have less success than a narrow decision with a constrained impact. The second places more emphasis on the public support variable, for if public opinion runs contrary to a court decision, any judicially-mandated policy will be a bitter pill to swallow. The third explanation stresses the legitimacy variable. If the implementing populations and administrative organizations refuse to comply with court policies, the policy is hindered from the start.

judicial policy decision: 1) a decision that relies on

Conclusion

This thesis, acting under the realist assumption that judges routinely engage in policy creation, sought to identify the circumstances or factors that lead to appropriate judicial policymaking. Appropriateness, a measure of whether judicial intervention in the policymaking process was conducive to enduring policy solutions, was operationalized as a combination of the judiciary’s capacity to solve a policy dispute, and the necessity of a judicial answer to a policy problem.

In other words, I predicted judicial intervention would be most appropriate when courts were both compelled to intervene in policymaking and were able to arrive at informed and enforceable policy decisions.

To develop this theory, an analytical model was

proposed that outlines six elements of an appropriate

71

generalized knowledge rather than complex social or technical information; 2) a bi-polar dispute involving two clearly defined and limited parties; 3) a minimalist decision that invalidates the fewest number of preexisting statutes or advances the fewest number of new responsibilities; 4) a decision that does not rely to a considerable extent on coordinating branches of government or implementing populations for legitimization; 5) a decision that is made necessary by structural impediments preventing the representative branches from taking action; and 6) a decision that has widespread public support. Combining these variables from the scholarly literature offers a nuanced understanding of judicial involvement in any given area of public policy. A court decision that conforms to these parameters should be easily enforceable, highly suited to remedy specific public policy grievances, and welcomed as a wise and necessary use of judicial review. In short, such a decision is appropriate because it is conducive to an enduring policy solution.

I confined my analysis to a two judicial polices

that have not been given adequate attention from legal scholars in recent years, namely, affirmative action in higher education and busing in K-12 schools. I did so for two reasons. First, the judiciary played a fundamental role in advancing and determining the constitutional scope of these policies from their inception, while the other branches largely chose to remain above the fray. This allowed me to more easily isolate and analyze the impact of judicial intervention in the policymaking process. Second, although both policies qualify as affirmative action policies by seeking to remedy mass social discrimination, the two are in many ways perfect contrasts. In higher education jurisprudence, the courts focus on individual plaintiffs; busing cases concern entire school districts. In higher

72 education, courts struck down racial quotas; in busing,

place when most higher education institutions already

courts mandated racial balancing through quota

were and have continued to operate under admission

systems. In higher education, judges are able to offer a

plans that give some form of preference, directly or

simpler remedy through a judicial decree ordering an

indirectly, to racial minorities. Busing policy, for all

applicant’s admission; in busing litigation, no such easy

its faults, can at least be justified as necessary due

fix exists. These key differences offered an opportunity

to structural impediments and the coordinating

to draw interesting conclusions through a comparative

branches’ passivity towards true racial integration

case study of affirmative action policies.

in K-12 schools. However, the Court pulled back

on busing policy in the face of public opposition, as

This comparative analysis highlighted that

the Court’s approach to affirmative action in higher

demonstrated by cases like Milliken v. Bradley (1974)

education proved more minimalist, easier to legitimize, and Parents Involved v. Seattle School District No. 1 and more in step with public opinion than the Court’s

(2007). If the Justices’ lack of cohesion impeded their

use of busing as a remedy for segregated schools.

ability to lead public opinion on higher education

However, even these variables did not receive a

affirmative action in any meaningful direction, then

“high” ranking in Table 1– in fact, the Court did not

their submission to public opinion ultimately killed

display high capacity or necessity in a single variable

busing.

considered here.

stand on racial equality in education. Their willingness

This analysis has troubling implications for

The courts ought to be applauded for taking a

those hopeful that court intervention in affirmative

to confront a thorny problem that the representative

action has high capacity to produce enduring policy

branches prefer to duck at least put the issue “on the

solutions. The multi-plural nature of these disputes

national policy agenda so that other policy makers

seems to pose the biggest problem for judicial

and the general public” might take action (Baum 2001,

policymaking. Both busing and higher education

267). This view is consistent with Ely’s suggestion that

affirmative action cases involve a vast number of

courts operate best when they clear the “channels of

students or interested peripheral groups, so neither can

democracy” by giving a voice to under-represented

be considered bi-polar. The Court faces considerable

minorities (Ely 1980, 73-76), and with Lowi’s theory

challenges when resolving such multi-plural disputes,

that “judicial democracy” can advance public policy

for these policies affect the lives of too many students,

when modern legislature shirks its duty (Lowi 1979).

families, and other interested parties to be effectively

Nevertheless, the courts took a weak stance on racial

imposed by a non-democratic institution. The

educational equality instead of a strong one. For

legitimacy of the Court’s decisions, and its capacity

supporters of affirmative action, courts have done

to make those decisions, suffers as a consequence

little more than allow for its continued existence

(Choper 1980, 139-140).

under confusing and rather arbitrary standards. For

The necessity of judicial involvement in higher

its opponents, the judiciary has accomplished nothing

education affirmative action also becomes suspect. The

by banning racial quotas or point systems but allowing

absence of structural impediments raises the question

other types of affirmative action to flower. In sum,

of why the judiciary needed to intervene in the first

American education today very much resembles

Pi Sigma Alpha Undergraduate Journal of Politics American education in 1970, before the judiciary’s immersion in affirmative action: largely stratified along race and class lines, in spite of all the rhetoric of the compelling interest in diversity. The Court’s contributions to affirmative action policy do not seem inappropriate so much as they seem irrelevant.

Alexis de Tocqueville remarked that political

questions inevitably become judicial ones in the United States (de Tocqueville 1945, 280). I would add that judicial questions are occasionally answered by judicial policies. In the cases here examined, judicial policymaking is seriously constrained, and judges must exercise caution when substituting their decisions for popularly elected policies. This holds especially true for multi-plural cases, and when structural impediments are not prevalent in the representative branches. This is not to say that judges have no role to play in the creation of policy in a representative democracy, nor that the courts should hesitate to rule on vital policy issues of concern to the public; only that judicial policymaking will be most appropriate when used to help discrete and insular minorities obtain the specific relief denied to them by majoritarian democracy.

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This is a Man’s World: The Standing of Women Security of the State

The

Bonnie Daniel Southwestern University This manuscript explores the relationship between women’s safety and their representation in government, and the peacefulness of that state in both external and internal affairs. Countries over a wide swath of cultures, religions, GDP per capita levels and levels of democracy from 2008 to 2013 are compared. By applying data from the WomanStats Database and the InterParliamentary Union, the “standing of women” variable is employed as a measure of how safe women are within a state and how well they are represented in their government. The “security of the state variable” is the overall score for each state from the Institute of Economics and Peace’s Global Peace Index. These two variables are highly correlated, indicating that the higher the standing of women score within a country, the more peaceful a state is found to be.

While Caprioli’s (2005) findings were significant in that the security of women in a state can indicate how secure a state is, I was able to show that the standing of women in the political realm of a state was just as important as how physically secure women are within a state. I find that the more secure and safe women feel in their own state, and the more women are in politics, the more secure and peaceful a state tends to be.

Introduction The discipline of international studies and international relations focuses on the question of what drives certain countries to war and what keeps others at peace. With these questions comes the implicit question of how to define “peace” in terms of international relations. While a state’s peacefulness is a hard variable to quantify, the Institute for Economics and Peace (IEP) has developed a method to do so, defining peace in a broad sense that incorporates both internal and external factors in order to encompass how safe citizens feel in their own state and in regards to other countries (IEP 2014). This broad definition allowed me to move past the initial question of how to define peace to another question: what are the explanatory variables that explain the differing levels of peace across the world. A large swath of research argues that economic status, the status of

democracy, and cultural differences are at the heart of why some countries are more peaceful than others.

Unfortunately, these factors largely overlook half of the population. How do the physical safety and the substantive representation of women shape how peaceful a state is, and can we create a predictive model of this?

One researcher in particular has made large strides in respect to how women impact the level of peace within a state. Mary Caprioli and co-authors (Caprioli 2005; Caprioli and Boyer 2001; Caprioli and Douglass 2008) have worked with the Global Peace Index (GPI) as well as two other large databases to construct a model that explains peace through the physical safety of women (Hudson, Caprioli, BallifSpanvill, McDermott, and Emmett 2008). In carrying out this research, these authors constructed a database and put together several multivariate statistics to combine both quantitative and qualitative variables

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Daniel

that explain how physically safe women are within a state. The authors used these statistics to relate them to internal and external peace quantifiers. By using the database that Caprioli and co-authors (Caprioli 2005; Caprioli and Boyer 2001; Caprioli and Douglass 2008) constructed, I recreated their findings, extending them through 2013. Then, I factored in the level of substantive representation women in the legislature to make a more holistic picture of women’s overall security and standing in a state and then used this new variable as my “standing of women” variable.

How Women are Represented in Governments A pivotal part of this analysis was finding a way to quantify how well women are represented in their governments. Some authors argue that simply having plenty of women in the legislature is sufficient (Dahlerup and Freidenvall 2005; Studlar and McAllister 2002), while others argue that in order for women to be well represented in government, their issues need to get plenty of discussion in the legislature (Chaney 2012; Sainsbury 2004). This is the basis of finding a balance between descriptive representation (the percentage of the legislature that is women) and substantive representation (how well “women’s issues” are given their due time).

Representing women has become an important aspect of modern democracies and in modern politics. However, there are many theories as to how to best accomplish this goal, whether there needs to be reserved seats, or whether the state should strive towards a critical mass of women in legislature (Dahlerup 2005; Fraceschet and Piscopo 2008; Htun 2004). The assumed opinion is that without a certain “critical mass” of women in a legislative body, there will be little to no focus on women’s issues. Figuring out the percentage of women in a legislative body and figuring out how to get them there are two building

blocks for finding the quickest way to effectively represent women. Substantive representation is how much or how well electorates represent their constituents in a democracy. In the case of women, studies have shown that oftentimes how women come to be elected is just as important as how many women there are in the legislature.

Dahlerup (2005) conducted research in the 1980s examining why a “critical mass” of women in the legislature was necessary to have substantive representation in legislatures. Dahlerup’s (2005) theory asserts that by having an increased number of women in politics, then there would have to be increased substantive representation as well. From this basis, one may concluded that mandatory quotas would be an effective way to bring women into legislature and increase their substantive representation at the same time. However, Franceschet and Piscopo (2008) provide a counter-argument against mandatory quotas.

They assert that quotas create an environment that forces women legislators to act on behalf of women’s interests, but this reinforces the idea that women are weak legislators that were placed into power with an advantage, thereby taking away their ability to act on behalf of women. Htun’s (2004) article supports Franceschet and Piscopo (2008) by explaining that because women are half of the population, and not a small subset of it, they are able to gain more substantive representation through voluntary party quotas instead of mandatory reservations or legislated quotas. Considering these works together, it can be concluded that mandatory quotas decrease the amount of substantive representation of women within a state (Franceschet and Piscopo 2008) whereas voluntary quotas increase representation of women (Htun 2004).

Other authors assert that by examining the electoral system, we can find how to increase substantive representation of women (Castles 1981;

This is a Man’s World Evans and Harrison 2012). Most notably, studies have found that there are more women in governments with party-list proportional representation electoral systems than in systems with single-member district electoral systems (Castles 1981; Evans and Harrison 2012; Matland and Studlar 1996). The first theory to explain this difference is micro-contagion theory, which says that larger parties will start to promote more women candidates if they feel pressured by smaller parties doing so (Matland and Studlar 1996). The rules of the single-member district electoral systems discourage change among the political parties in comparison to

list (Rosenbluth, Salmond, and Thies 2006). To test

Proportional Representation (PR) systems. Thus, PR systems are more likely to change and promote more women in political parties if pressured by other parties (Matland and Studlar 1996). Matland and Studlar (1996) use a small-n case study of Canada and Norway, finding that Norway’s larger political parties felt pressured by smaller parties and could react to these pressures because of the flexibility inherent in a partylist PR system. This specific institutional explanation can explain in each election why the number of women in parliament rises, but it does not account for any decreases or increases in the number of women. It is a weak argument because it is specific for the time and place that the authors examine.

In contrast to the micro-contagion theory (Matland and Studlar 1996) is the political economy theory. According to Rosenbluth, Salmond and Thies (2006), the political economy theory argues that a welfare state increases the descriptive and substantive representation of women. The welfare state frees women from traditional household work, and gives them more jobs in the public sector, therefore changing women’s values and beliefs. The latter creates a larger gender gap, giving political parties more incentives to target women’s votes and including more women on the proportional representation

Salmond and Thies (2006) only examine countries

79

the political economy theory, the authors conducted a large-N study of many different countries that fit the above requirements. Rosenbluth, Salmund, and Thies (2006) find that a left-leaning government was statistically insignificant – if there is a high enough female employment rate and if there is a party-list PR system in place. This finding contrasts with Matland and Studlar (1996) research because their explanation examines the left-wing political parties only and does not explore whether the same phenomenon occurs in right-leaning parties. However, Rosenbluth, with PR electoral systems and do not compare them to single-member districts. Thus, the authors discount the importance of the electoral system in increasing the number of women in legislative positions. Thus, building on both the micro-contagion and political economy theories, empirical models should employ weights for the electoral system and for the number of women that are employed within a state.

The Roles of Women in Peace and Power

Beyond defining the representation of women,

an analysis of other literature regarding the question of how women affect the peacefulness of a state is necessary. Is there a connection between women and peace, and if so, what is that connection? Caprioli and Boyer’s (2001) research finds a high, statistically significant, correlation between the level of domestic violence and the amount of international crises. They also find evidence that as the percentage of women in the legislature increases, the probability that a state will use violence decreases at a statistically significant rate (Caprioli and Boyer 2001). Their empirical model, however, assumed that the election of women to the legislature is a good indicator of gender equality

80 (Caprioli and Boyer 2001), which Franceschet and

examine women both in the legislature and the

Piscopo (2008) find is not always the case. Caprioli

executive branch to provide a more encompassing

and Boyer (2001) also used the International Crisis

view of women in government (Koch and Fulton

Behavior (ICB) data set instead of the Global Peace

2011). Overall, they find that increasing the number of

Index (GPI), which did not exist in 2001. The ICB

women in government significantly decreases defense

data set focuses on extreme events instead of everyday

spending and conflict behavior (Koch and Fulton

peace leading the empirical model to be skewed and

2011).

not directly comparable to models built using the data

from the GPI.

framework, Charlesworth (2008) examines the

specific measures passed by the United Nations

Caprioli and Douglass (2008) again tested the

Examining a larger international law

argument that women could be an indicator of how

(UN) regarding peace and women. The author first

peaceful a nation is by using the newly available GPI.

states the assumptions made by different authors

Caprioli also worked with another team, this time led

and agencies regarding women and peace: “women

by Hudson, and they have shown that there is a gap

are better than men at developing and sustaining

in existing research in this area, and more specifically

peace” and this “affinity…is often associated with

that there are few empirical studies to support the

motherhood” (Charlesworth 2008, 349-351). These

theoretical idea that the standing of women is strongly

are the assumptions that I seek to validate here,

linked to the security and behavior of a state (Hudson

as I assert that by creating an environment more

et al. 2008). This study hoped to help fill this gap and

conducive to women’s rights will also make that state

provide some direct evidence of this link. Instead of

more peaceful. By using case studies, Charlesworth

focusing on just domestic violence, her team expanded

(2008) examines how UN resolutions were used in

her study to multiple indicators of the physical security

the Asia-Pacific region. Overall, the author finds that

of women within a state (Hudson et al. 2008). They

women and peace-building should not be tied together

collected this information in a database called the

because women are not more peaceful than men and

WomanStats Database and created a multivariate

women are not more vulnerable than men in conflict

statistic to represent the physical security of women

(Charlesworth 2008). By using three specific cases,

(Hudson et al. 2008). This team found that between

which examine women’s experiences in local conflicts,

their indicator of the physical security of women and

to prove her point, Charlesworth (2008) argues

the global peace indicator scores, the chi-squared value

that her thesis is applicable to every case, including

was 41.212 with a very high statistical significance (the

international peace building. The first case focuses on

p-value was less than 0.0001) (Hudson et al. 2008).

the conflict in Bougainville and how despite women’s

role in the peace-making process, Bougainvillean

Koch and Fulton (2011) examined a similar

question: does the level of descriptive representation

women have not ended up with adequate

of women indicate a decrease in a state’s aggression?

representation in the government (Charlesworth

Koch and Fulton (2011) use the amount of GDP

2008). The second case regards the international

spent on defense as their indicator of how aggressive

rebuilding of East Timor, where the UN Security

a state is, instead of an external database. They also

Council set established a transitional administration

Pi Sigma Alpha Undergraduate Journal of Politics that explicitly noted the importance of gender

81

A polynomial regression between women’s

perspectives, however since 2006, women’s groups have

safety and their representation in government and

been marginalized by violence and political upheaval

the peacefulness of that state in both external and

(Charlesworth 2008). The final case Charlesworth

internal affairs is estimated. To find an explanation

(2008) examines is how women attempted to create

for differing levels of peace across the world, countries

a peaceful movement to resolve land disputes in the

over a wide swath of cultures, religions, GDP per

Solomon Islands, however were eventually excluded

capita levels and levels of democracy from 2008 to

from the peace process. Charlesworth (2008) uses

2013 are examined. Specifically, the countries in this

anecdotal evidence, however, in three situations in East

analysis include the United States, the member states

Asia, thus narrowing her scope and making it difficult

of the European Union (except for Luxembourg and

to see how these cases can be generalized to all women

Malta), Argentina, Brazil, Canada, Japan, China, India,

involved in political conflicts around the world.

and Russia. The main independent variables in this

Methodology Regression analysis is employed to examine

regression analysis are the physical safety of women and the level of substantive representation of women in a state. The dependent variable is the peacefulness of a

the relationship among the level of substantive

state.

representation of women, how women are treated in

Dependent Variable

general in society (as reported in the WomenStats Database in 2014), levels of Gross Domestic Product (GDP) per capita to account for varying population sizes, and the different elements that make up the final IEP peacefulness level of countries. The regression analysis employs both a single regression and multiple regression analyses to compare which factors were more significant than others, and were guided by my analysis of what impacts substantive representation of women. By studying countries that are fairly developed, but have varying GDPs and cultures, I can account for other underlying variables within the model. These countries include the member states of the European Union (except Luxembourg and Malta), the United States of America, China, Japan, Russia, Brazil, India, Canada, and Argentina. The Global Peace Index by the IEP was started in 2007, and was only made complete for all of these countries in 2008.

Therefore, the model is limited from 2008-2013, as data are not yet available for 2014.

First, the dependent variable, “peacefulness of a state” in terms of international relations, must be defined. To do this, the Institute of Economics and Peace’s (IEP) quantitative definition of “peacefulness of a state” is used and is as follows (IEP “Global Peace Index 2014”): • Military expenditure as a percentage of GDP • Number of armed services personnel per 100,000 people • Financial

contribution

to

UN

peacekeeping missions • Nuclear

and

heavy

weapons

capability • Volume of transfers of major conventional weapons as supplier (exports) per 100,000 people • Number of displaced people as a percentage of the population

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82 • Relations with neighboring countries

of 0, countries with single-member district electoral

• Number of external and internal

systems a 1, and countries with multiple member

conflicts fought • Estimated number of deaths from organized conflict (external) More information regarding how the IEP operationalized each of the above points can be found

districts or party-list proportional representation received a 5. Prior analysis conducted by Matland and Studlar (1996) and Rosenbluth, Salmond, and Thies (2006) set these weights a 0, 1, and 2, respectively. As previously discussed, these authors find that a party-

in the Appendix. I carried out my analysis by using the list PR system allows and encourages women to have IEP’s raw data for each of the above variables, as well as more substantive representation in a government the overall aggregate score for “peacefulness of a state”

(Matland and Studlar 1996; Rosenbluth, Salmond,

from 2008 – 2014 for each of the 34 countries that I

and Thies 2006). This analysis contrasts with this

studied. The overall aggregate peace score ranges from

prior work in that it places a higher weight of a 5 on

0 to 3.5 with 0 being more peaceful and 3.5 being less

countries with multiple member districts or party-

peaceful.

list proportional representation rather than a 2. I

Independent Variables

acknowledged that not all countries with party-list

Moving to the independent variables, the level of substantive representation of women and the physical safety of women within a state requires definition and operationalization. For the empirical model, I used the quota system (or lack thereof) and the type of electoral system to come up with a comparable value of substantive representation among the countries, the percent of women in the legislature, and the physical safety of women.

To operationalize the quota system, I coded mandatory quotas at a 0, no quotas at a 2, and voluntary quotas at a 3. Weighting is the statistical technique of assigning qualitative variables certain ranks, or weights, based on what is seen as “better” or “worse”. In examining quota systems, mandatory quotas are penalized with a weight of zero because they decrease substantive representation Franceschet and Piscopo (2008) and voluntary quotas are rewarded because they increase substantive representation (Htun 2001).

To operationalize the electoral system, countries without an electoral system received a code

proportional representation systems give women higher representation. I made this initial assumption and conducted sensitivity analysis later to validate that this was the appropriate final weight for each of the representations.

To operationalize the overall level of substantive representation of women in the legislature, I weighed the proportion of women in legislatures (an average of the upper and lower houses) at three times the weight of the quota system score and the electoral system score. The proportion of women in legislatures was found online from the InterParliamentary Union (IPU 2014). Figure 1 shows the formula for the substantive representation of women score. I developed the weights for each of the aspects of the substantive representation of women through sensitivity analysis, which is discussed in the results section of this paper.

To define the physical safety of women, I

used the index that Caprioli (2005) created. This index encompasses what the authors found to be mathematically important to the measurement

This is a Man’s World

83

Figure 1. Formula for Substantive Representation of Women Score

of how physically secure women feel within each

killings and/or femicides are quite rare,

state. Caprioli’s and co-authors (Hudson et al. 2008)

occurring only in small pockets of the

used both qualitative as well as quantitative data to

population, and are condemned by

construct this multivariate statistic. Specifically, this

society.

index is created through combining existing literature,

3 – There are laws against domestic violence,

personal interviews, and many other legitimate sources

rape, but not necessarily marital rape;

of information, and gives each country an overall

these laws are rarely enforced; there

score. The United States, for example, was assigned a

are taboos or norms against reporting

score of 2. This index is now a part of the WomanStats

these crimes (or ignorance that these

Database, which collects information on how women

are reportable crimes), which affect a

are treated in societies and states. The indices are

majority of women. Honor killings and/

held under a multivariable scale that is as follows

or femicides may occur among certain

(WomanStats Database):

segments of society but are not generally

0 – There are laws against domestic

accepted within the society.

violence, rape, and marital rape; these

4 – There are no or weak laws against

laws are enforced; there are no taboos

domestic violence, rape, and marital

or norms against reporting these crimes, which are rare.

rape, and these laws are not generally

There are no honor

enforced.

killings or femicides.

of weak laws—need 4 male witnesses to

generally enforced; there are taboos or

prove rape, rape is only defined as sex

norms against reporting these crimes

with girls under 12—all other sex is by

(or ignorance that these are reportable

occur.

2 - There are laws against domestic violence, rape, and marital rape; these laws are sporadically enforced; there are taboos or norms against reporting these crimes (or ignorance that these are reportable crimes), which are common.

Honor

and/or

ignored or generally accepted. (Examples

rape, and marital rape; these laws are

Honor killings and femicides do not

killings

femicides may occur and are either

1 - There are laws against domestic violence,

crimes), which crimes are not common.

Honor

definition consensual, etc.)

Using both the index that Caprioli (2005)

developed for each state (which I refer to as the “Physical Safety of Women” (PSOW) variable) and my model of the level of substantive representation of women, I calculated a score for each state that averaged these two values. The formula for this is shown in Figure 2. This is what I call the “Standing of Women,” where a higher score indicates a higher level of physical safety of women, a higher level of

84 Figure 2. Formula for “Standing of Women” Score

women in the legislature, voluntary quotas, and either

multiple member district or party-list proportional

as the best-fit curve for our data, I compared the

representation electoral system.

R-squared values of the linear, logarithmic, power

Results

After running the regression analysis, I found

To decide on the polynomial of degree 2

and exponential fits. The graph is shown Figure 4 that compares each, along with the R-squared values next to the curves.

that a polynomial curve best fit the data, as shown

in Figures 3 and 4. The curve is concave down as

correlation between the “Standing of Women” index

well as having an overall negative slope, which is to be expected. The negative slope indicates that as the “Standing of Women” index decreases, countries are less peaceful; similarly as the “Standing of Women” index increases, countries tend to be more peaceful.

The coefficient of determination (or the

R-squared value) is 0.487. This value means that 48.7% of the variance in the peace scores is predictable by the independent variables from the model. In the context of this problem, this is a high R-squared value. In Hudson et al. (2008), the coefficient of determination for the physical safety of women and the GPI is 0.299.

When I recreated their findings for 2013, I found that the R-squared value for the Physical Safety of Women (PSOW) and GPI is 0.436, as shown in Figure 5.

The rise in the R-squared from Hudson’s et al.

(2008) study compared to my study in 2013 can be attributed to the difference in states that Hudson (2008) focused on compared to the countries I focused on and the development of the GPI since it was created in 2008. Another important point that we can learn from Figure 5 is that despite how small the R-squared value is for substantive representation, it significantly increases the R-squared model from just the physical safety of women.

From these findings, there is a high

and how peaceful a country is overall. For evaluating whether my results have a statistical significance on par with Hudson et al.’s (2008), I ran significance testing for polynomial regression and found that the F statistic is 14.71 on 31 degrees of freedom with a corresponding p-value of 3.212*10-5. The p-value indicated the probability of less than 0.003% that we would achieve an R-squared value of 0.487 or more if the null hypothesis (that the “Standing of Women” index and the overall peace score are unrelated) is true. The p-value is less than the accepted 5% or even the more stringent 1% confidence interval test, which indicates that the relationship is statistically significant. Thus, these two variables are either influenced by a shared common factor, or that one factor is influenced by the other in this case.

The results are on par with Hudson et al.’s

results (2008). Therefore, it is the standing of women that is influencing the peacefulness of the state, and not the other way around or another common causal factor. When running the R-squared value test between the GPI and democracy levels, wealth, and Islamic culture, the R-squared value for the physical security of women is the highest while the prevalence of Islamic culture was not found to be an accurate or

Pi Sigma Alpha Undergraduate Journal of Politics Figure 3. 2013 with Substantive Representation Weights

Figure 4. 2013 with Substantive Representation Weights

85

Daniel

86

Figure 5. Physical Safety of Women vs. Substantive Representation

important predictor of the level of peacefulness of the

value increased above 0.5, but the ability to accurately

state (Hudson et al. 2008). I conducted a regression

predict other countries’ peace scores decreased. Thus,

analysis on the levels of GDP per capita against the

I chose the original model with 34 countries.

GPI levels and against the “Standing of Women” index.

Now that there is a model that has been shown to

Curiously, GDP per capita and the standing of women

be statistically significant and with a high coefficient

have a decently high coefficient of determination of

of determination, I can conduct an analysis of how

0.438, as is shown in Figure 6. However, the GDP

accurate this model is in predicting other countries

per capita and GPI have a lot less in common as the

levels of peace. To do this, I used other countries

R-squared value is only 0.308, as is seen in Figure

that I did not use in my original model. Once again,

7. Therefore, it seems that GDP per capita is not an

I aimed to collect a large sample of GDP per capita

adequate predictive variable in comparison to the

levels, levels of democracy, and a difference in cultures.

“Standing of Women” index.

Table 1 reports the results with the country, expected level of peace, actual level of peace according to the GPI and the percent of error. From these predictions, it is apparent that the model worked very well for a majority of the holdout countries; however, the model was very inaccurate with regards to other countries.

Another form of sensitivity analysis I preformed was in changing my empirical model to reflect differing viewpoints regarding how women gain substantive representation in government. This sensitivity analysis led to finding results about how substantive representation should be measured in

Another analysis of my model was a type of

sensitivity analysis. For this, I removed the outlying countries to try to find a higher R-squared value. In Figure 3, there are three countries that lie to the left of the major group of countries – Russia, China, and India. I removed each outlying point to determine which, or if all, were highly influential points. I found that by removing these outlier countries – Russia, China, and India – the model’s R-squared value decreased to 0.295. However, by removing only Russia and China, or just China, the model’s R-squared

This is a Man’s World

Figure 6. GDP and the Standing of Women

Figure 7. GDP and the Level of Peacefulness

87

88 general. To find the right balance between the percent women in legislatures, the quota system score and the electoral system score, I changed the weighting for each in my model. By making the weights for descriptive legislation larger and the weights for the other two smaller, I found that my model was not able to capture as much variance as my original weighting had. After continuing to manipulate the weights used for each variable that went into the overall Standing of Women score, I found that mandatory quotas really do decrease women legislator’s ability to advocate for women within the legislation. This

Thus, I made PR systems and MMD be worth 5 in my final model. This reinforces Matland and Studlar (1996) as well as Rosenbluth, Salmond, and Thies (2006), although it does not indicate whether it is a micro-contagion affect or welfare systems that make this difference.

reinforces Franceschet and Piscopo’s (2008) study on Argentina. Additionally, another variable turned out to be important was the electoral system. At first, I weighted no elections as a 0, SMD as a 1, MMD as a 2, and party-list PR as a 3, but I found that a much more accurate way to represent these electoral systems is to weight MMD and PR as the same, and to give them significantly more weight than SMD and no elections.

into all of the possible intervening variables in regards to how peaceful a country is. In future studies, I also hope to determine what factor Niger, South Africa, Switzerland, and Mexico have in common that Iceland, Afghanistan, and Saudi Arabia do not have.

It is also possible that there is an external variable that directly explains the high correlation between the standing of women of a state and how

Conclusion

In future studies, work should be done to evaluate other causal variables that can explain the gap in my model’s ability to predict how peaceful a country is. This will allow us to gain a further insight

Table 1. Predicted and Actual Peace Scores of Holdout Countries Country Niger South Africa Switzerland Mexico Chile Norway Kazakhstan Armenia Australia New Zealand Iceland Afghanistan Saudi Arabia

Estimated Overall Score 2.34 2.31 1.32 2.32 1.73 1.49 1.82 2.34 1.80 1.56 1.49 2.32 2.99

Actual Overall Score 2.36 2.29 1.27 2.43 1.59 1.36 2.03 2.12 1.44 1.24 1.16 3.44 2.12

Percent Error ([actual-estimated/actual]*100) 0.9% 0.9% 3.8% 4.8% 9.1% 9.4% 10.4% 10.5% 25.5% 26.2% 28.0% 32.4% 41.2%

Pi Sigma Alpha Undergraduate Journal of Politics peaceful that state is, however my work has shown that this variable is not likely to be GDP per capita, a certain culture or religion or the level of democracy.

From these results, it can be concluded that women are important to include in the political system if the goal of a country is to become more peaceful.

My mathematical model has shown us that if women are included in the political system and are physically safe within a country, then that country will not only be more peaceful, it is also likely to have a higher GDP per capita. In 2008, Hudson et al. found that there was a lack of evidence to support the theoretical framework

89

Appendix How the IEP operationalized each of their qualitative points of external peace indicators (From the IEP’s 2014 Global Peace Index Report).

Nuclear and heavy weapons capability.

Each of the five categories of weapons below received a certain weight: • Armored vehicle and artillery pieces = 1 point • Tank = 5 points • Combat aircraft and combat helicopter = 20 points • Warship = 100 points • Aircraft carrier and nuclear submarine = 1000 points Countries with nuclear capabilities automatically receive the maximum score of 5 for this category.

that the security and behavior of a state is correlated to the standing of women within the state. This work fits into this gap, and therefore within the grand scheme of international relations studies, as well as feminist studies, and works to show how important it is that women be involved in politics, and that the laws treat women equally. Fukuyama has shown that “a truly matriarchal world, then, would be less prone to conflict Relations with neighboring countries and more conciliatory and cooperative than the one we The scoring criteria is below: inhabit now,” (1998, 33). This is certainly a desirable 1. Peaceful: none of the neighbors has goal in a modern world where conflict can spell out attacked the country since 1950. horrific consequences for both humans and the Earth.

2. Low: the relationship with neighbors Involving women in governments on all scales, from is generally good, but aggressiveness is local to international governing bodies, can drive manifest in politicians’ speeches or in more peaceful communities both intra and interprotectionist measures. nationally. The significance of the current work shows 3. Moderate: there are serious tensions and that focusing on the general population is not enough. consequent economic and diplomatic It reiterates that by empowering women, the world restrictions from other countries. is becoming a more stable and secure place. Women 4. Aggressive: open conflicts with violence make up half the world, but have never been given the and protests. opportunity to hold half the power, and this shows 5. Very aggressive: frequent invasions by that it is high time that societies step up and encourage neighboring countries. women to become equal members of society.

Number of external and internal conflicts fought.

The definition of conflict used is by the Uppsala Conflict Data Program and states

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90 that conflict is: “a contested incompatibility that concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths in a year.”

Estimated number of deaths from organized conflict (external).

The definition of conflict is the same as stated above.

Note: Additional data available on request Data from the GPI was requested from the IEP and given with certain permission

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