Commentary

Gary Shattuck: Balkan lessons for Vermont

Editor’s note: This commentary is by Gary Shattuck, of Shrewsbury, who is a graduate of Vermont Law School and former Vermont federal prosecutor who served as a legal adviser in Kosovo and Iraq. He researches and writes on the state’s early history from a legal perspective and his next book describing Vermont’s first opium epidemic occurring in the 19th century is scheduled for release on June 5.

In 2000, the Albanian breakaway portion of Serbia, known as Kosovo, was in dire straits because of the effects of a vicious ethnic war recently ended. The international community had intervened by then both militarily through the efforts of NATO and the introduction of civilian advisers to assist the fledgling government as it sought to gain its footing while Serbia was held at bay at gunpoint. After assuring the public that safety measures were in place and getting its physical needs met (food, clothing, medicine, etc.) the next thing to be done for the Kosovars concerned standing up a legal system in what was a terribly complicated environment.

There were no easy answers early on as the law was in a fluid state, with the Federal Republic of Yugoslavia, Serbia, Kosovo Liberation Army, NATO, United Nations Mission in Kosovo, Council of Europe and the Organization for Security and Cooperation in Europe (OSCE, based out of Vienna) all vying for attention. In the absence of a functioning legislature, executive and judiciary in Kosovo, the provisions of United Nations Resolution 1244 and the European Convention on Human Rights provided the basic contours of what was expected legally; all administered through the office of the UN Special Representative, assisted by a huge contingency of security personnel made up of Kosovo, international and military police from many European countries.

That May, I walked into the OSCE headquarters in downtown Pristina as the U.S. Department of Justice legal adviser assigned to the Kosovo Judicial Institute to assist in these efforts. For the next six months, we managed to pull together a functioning legal system and worked to educate police, prosecutors and judges on what the law was and how it had to be applied.

The Albanian population suffered greatly because of the Serbs and, naturally, there was a desire within its fledgling legislature to exact some level of revenge against those that remained in the region. However, because of the legal framework that was set up, any laws that they might want instituted had to be vetted against the above-named provisions in order to assure a minimum level of protection for all inhabitants of Kosovo.

The mantra heard daily was that the Kosovars would be allowed to do what they wanted as long as it complied, minimally, with international standards. This was the gold standard and one that could not be avoided, regardless of how much they might want to retaliate against the Serb population. The Albanians understood that and worked zealously to reform their laws and to conform them to 21st century expectations. They understood the concept of federalism and the interactions between states and an overarching government uniting them together. Indeed, it is a lesson that any high school civics course teaches and which any lawyer familiar with constitutional law knows by rote. There was no whining, no obfuscation, no attempts to say one thing and do another as they fully understood that there had to be one source of law from which all others gained their legitimacy.

I would suggest that Vermont officials pushing this agenda take a deep breath, step back and get a grip on reality.

 

Now, compare the Albanian respectful and reasoned approach to nascent federalism with what is happening in the Green Mountains. Unhappy with the immigration policies of the administration in Washington, D.C., our attorney general has now struck out on a contrarian path that would leave those in the Balkans scratching their heads. Utilizing disingenuous, flat-out falsehoods vilifying federal intentions, he has created imaginative reasons to support his actions in contravention of our own gold standard, the United States Constitution, that document from which all other laws flow. Unfortunately, he has succeeded in swaying many, including members of the administration and the Legislature, in believing there will be some nebulous registry, that the federal government will commandeer state resources to enforce immigration law, and has otherwise painted a dire picture of oppression. His efforts have resulted in our lawmakers performing somersaults as they spend precious time crafting needless, symbolic legislation to obstruct his baseless registry claims and then have to defend them to a skeptical audience.

But that is not the end of the story, for at the same time the attorney general has gone on to engage in a sleight of hand, doing indirectly what he cannot do directly. If the Legislature will not entirely bend to codifying his sanctuary-driven agenda, he has created a duplicitous, confusing set of “guidelines” for Vermont’s law enforcement community in which he says it is not the state’s intention to violate federal law, but then does precisely that. His obstructionist instructions tell officers, among other things, that they “shall not” assist federal officials and that they “are not permitted to accept requests by [federal officers] or other agencies to support or assist in [immigration enforcement] operations.” It is incredible, eye-popping stuff, for sure, but the most unfortunate thing about it all, aside from throwing stones at the federal government, is the potential for harm that all this makes possible because of all the confusion he has needlessly brought on.

I’ve been fortunate to work with several task forces over the years on the state and federal levels, including ones in Kosovo and Iraq as we established systems supporting the rule of law not previously experienced in either country. In every case we had a great group of people from various levels of government and agencies focusing their efforts on particular projects and we obtained great results that no one of them could have gotten on their own. To function effectively task forces require adherence to the law, a recognition of a legal hierarchy, respect, cooperation, a willingness to participate and much sacrifice to advance the interests of the whole and not of any one agency. They do not tolerate peevishness, contrarianism, rebellion, disrespect, or efforts to undermine or hinder their work and any individual exhibiting such behavior (and I cannot recall a single instance where this occurred) would have been shown the door.

Unfortunately, all of these latter qualities appear in the personage of our attorney general and I have no doubt he would have been one of those invited to excuse himself so as not to embarrass or obstruct the work of everyone else. His protestations against federal laws that are under the exclusive jurisdiction of the federal government are ones that belong in the halls of Congress, not in pushing for the state’s obstruction in their execution. His tinkering on the edges of such important issues simply cannot be justified, no matter how he seeks to characterize them.

It is a sad thing to see the law so twisted and used in this manner and it is an example that even those in Kosovo would recognize as questionable and hardly conducive to fostering a cooperative atmosphere allowing common interests to resolve their differences amicably. His approach is, instead, confrontational, unproductive and thoroughly unworthy of our state.

I would suggest that Vermont officials pushing this agenda take a deep breath, step back and get a grip on reality. The sky is not falling, but in their ham-fisted attempts to interfere with well-established federal law they can only offer up great difficulties in the end, and very likely be accompanied by sad, unintended consequences. There is certainly nothing to be proud of here and we all deserve better, much better.

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  • Jon Corrigan

    Great commentary. Attorney General Donovan announced a task force on immigration to advise him on his legal authority with regard to enforcement
    of federal immigration law. The announcement, dated 25 January 2017, states (in part): ‘The task force, comprised of 11 citizens and attorneys, shall provide
    the Attorney General with a report and recommendations as to how to
    protect legal rights of all Vermonters.’
    The minutes from the meeting on 07 February 2017 include: ‘Enrique Balcazar joined the task force on behalf of Migrant Justice.’
    So much for the ’11 citizens and attorneys’. Why does a person present in the United States illegally have a voice on a State task force? Why is our AG soliciting the advice and recommendations of an illegal alien on protecting the ‘legal rights of all Vermonters’? Congratulations TJ – I intend to put ICE on speed-dial.

    • Ray Gonda

      “Why does a person present in the United States illegally have a voice on a State task force?” A good question! Why do persons with certain medical conditions often find themselves on task forces or focus group studying how to cope with such problems? Likewise true with former alcoholics or drug uses being part of task forces. Why are farmers on task forces dealing with agricultural issues? . BECAUSE THEY HAVE THE DIRECT EXPERIENCE THAT NO ONE ELSE HAS.They are the ones who have been or will be directly affected. That is always worth something – even in the case of an undocumented worker.

      • Jon Corrigan

        You missed the point Ray. The initial announcement by the AG, on the AG’s website, indicates the task force would consist of ’11 citizens and attorneys’. (NOTE: it didn’t state ’11 Vermont residents’.)
        Definition of citizen: ‘a legally recognized subject or national of a state or commonwealth, either native or naturalized’. That’s pretty clear.
        Why did our State’s Chief Law Enforcement Officer then violate, one week later, with no announcement, the composition of the task force by admitting a non-citizen as a member?
        No State Task Force should have Illegal Aliens as members – I would have thought an Attorney General would be more intelligent than that.

      • SteveThurston

        One voice that was glaringly, and intentionally omitted from the task force was ICE.

      • Phil Greenleaf

        You nailed it Ray!. Not sure how Jon C missed the part that fails to specify if the attorneys need to be citizens as well. LOL.

    • Phil Greenleaf

      Some commenters are micro analyzing AG Donovan’s Immigration Task Force announcement terminology re: US citizenship.

      In light of several historic facts let me juxtapose some needed perspective topping out the brutal irony of this situation. As many rally to the defense of ICE detentions as “just part off the job”. let’s look at the history of US Government’s (including White House and Defense Department) manipulation of immigration law to utilize undocumented and bloodthirsty residents as “expert” consultants on issues ranging from immigration to military tactics (just to name a couple).

      The School of the Americas and National Defense University system at FT Benning GA was found to have not only counseled with but employed undocumented military commanders from Colombia, Honduras and Chile who helped mastermind right wing coups and mass killings…

      https://en.wikipedia.org/wi

      W Bush and Bill Clinton employed the talents of dozens of undocumented Iraqis in the formulation and prosecution of the 2003-2008 billion dollar bash. Primary recipient of millions of US payroll and welcomed into the Pentagon was the Iraqi National Congress (including Ahmad Chalabi’s bodyguards and henchmen). The INC literally had a faux diplomatic residence.

      http://r.search.yahoo.com/_

      Reagan’s White House was frequented by plenty of undocumented Cuban lobbyists and African dictators, recruited and granted special permission to advise on the war against Castro and communism.

      https://en.wikipedia.org/wi

      These are only 3 quick reference points that should help frame the debate about immigration in the US. For at least 70 years (since the socialist and communist scares through the Cold War and to this day) our governments, Democrat and Republican alike, have fostered relationships with human rights abusers, felons, and criminal money laundering experts all in the name of anti-communism and global “security”. In so doing we have wasted countless billions of dollars and energy that could have assisted (among other matters) creation of humane and progressive immigration and work program rights. Instead, what has been created is an environment in which many citizens and politicians remain poised to berate undocumented pacifists and activists with important messages and great energy.

      We should all spend more time worrying about the real criminal activity of some undocumented (but privileged) foreign nationals and their US sponsors. Let’s look at how real immigration atrocities occur rather than even considering condemnation of Migrant workers who are just as committed to economic justice and rights as any “American”, even if they aren’t sponsored by any high profile think tank or have not donated millions to politicians on the take.

  • Meg Streeter

    thank you Gary Shattuck.. helpful and clarifying.. our state seems to attract politicians fond of the grand and ultimately meaningless gesture/directive.

  • Ray Gonda

    The author Gary Shattuck must have little of worth to say since this entire piece is nothing by hyperbole – and so much of it that it undermines the authors own intentions of disparaging the attorney generals activities. Perhaps he was just having a bad day.

    If there is a problem legally with what our attorney general is doing, then why doesn’l the author spell it out in detail rather than simply alluding to it with additional hyperbole.

    At least that would be something worth reading.

  • Phil Greenleaf

    While Shattuck’s overseas work clearly is honorable and provided great experience, and the article was informative about Balkan politics and vengeance, there really is little connection to Vermont. Except for the vengeance part I guess. Gary faltered by concluding in the final paragraph that – ” The sky is not falling” (asserting that the liberal approach in VT is hysterical) when the obvious truth is….

    Donovan, Scott and others in Vermont are responding to federal mandates that overtly state that – THE SKY IS FALLING AND WE NEED SOMEONE TO BLAME!
    At a time when health care concerns, job development, clean environment, energy independence etc are the critical matters, Trump and his emboldened federal henchmen have whipped up a fearful tale of doom and gloom that enlightened minds across the world are ready to reject.

    The self-righteous right wing reaction and call for rule of law is so hypocritical that it is hard to fully point out all the flaws. Rule of law for Vermont means using slim resources to effectively manage the type of crime and social strife evident on our roads and streets. The pressing issue of opiate flow into the state is not a federal immigration related issue, nor is lack of job growth (don’t even try to argue that immigrants are taking our jobs – fully disproven). Where are the calls for rule of law when corporate tax evasion remains rampant? Corporations are not human and if humans running them advocate tricky bookkeeping then it is criminal self interest. How does rule of law relate to the creation of the state of Vermont? If Green Mt residents had acquiesced to “ROL” we might be residing in NH or NY. (would the writer prefer that?) Obviously rule of law is a convenient phrase to stir political consent.

    State officials, while dismayed and deeply at odds with current federal initiatives as Gary suggests, are attempting to keep cool and maintain focus on the matters at hand as opposed to complying with reactionary bogeyman hunts. Scapegoating should be left to the fringe conservative pundits and kept out of government. I’d like to hear Gary’s opinion on this from a Vermont history perspective (the little issue of how leaders dealt with slavery and fugitive slaves – the deep rooted skepticism of Washington DC) as opposed to the completely separate (although compelling) issue of Kosovo.

  • Phil Greenleaf

    Some commenters are micro analyzing AG Donovan’s Immigration Task Force announcement terminology re: US citizenship.

    In light of several historic facts let me juxtapose some needed perspective pointing out the brutal irony of this situation. As many rally to the defense of ICE detentions as “just part off the job” let’s look at the history of US Government’s (including White House and Defense Department) manipulation of immigration law to utilize undocumented and bloodthirsty residents as “expert” consultants on issues ranging from immigration to military tactics (just to name a couple).

    The School of the Americas and National Defense University system at FT Benning GA was found to have not only counseled with but employed undocumented military commanders from Colombia, Honduras and Chile who helped mastermind right wing coups and mass killings…

    https://en.wikipedia.org/wiki/Western_Hemisphere_Institute_for_Security_Cooperation#cite_note-39

    W Bush and Bill Clinton employed the talents of dozens of undocumented Iraqis in the formulation and prosecution of the 2003-2008 billion dollar bash. Primary recipient of millions of US payroll and welcomed into the Pentagon was the Iraqi National Congress (including Ahmad Chalabi’s bodyguards and henchmen). The INC literally had a faux diplomatic residence.

    http://r.search.yahoo.com/_ylt=A0LEVw2bs9JYKqgAnWlXNyoA;_ylu=X3oDMTEyNTVkN29vBGNvbG8DYmYxBHBvcwM2BHZ0aWQDQjM2MjJfMQRzZWMDc3I-/RV=2/RE=1490232348/RO=10/RU=http%3a%2f%2fwww.newyorker.com%2fmagazine%2f2004%2f06%2f07%2fthe-manipulator/RK=0/RS=u55951.1kdcmepksiiaZjvczTMM-

    Reagan’s White House was frequented by plenty of undocumented Cuban lobbyists and African dictators, recruited and granted special permission to advise on the war against Castro and communism.

    https://en.wikipedia.org/wiki/Mobutu_Sese_Seko#cite_note-67

    These are only 3 quick reference points that should help frame the debate about immigration in the US. For at least 70 years (since the socialist and communist scares through the Cold War and to this day) our governments, Democrat and Republican alike, have fostered relationships with human rights abusers, felons, and criminal money laundering experts all in the name of anti-communism and global “security”. In so doing we have wasted countless billions of dollars and energy that could have assisted (among other matters) creation of humane and progressive immigration and work program rights. Instead, what has been created is an environment in which many citizens and politicians remain poised to berate undocumented pacifists and activists with important messages and great energy.

    We should all spend more time worrying about the real criminal activity of some undocumented (but privileged) foreign nationals and their US sponsors. Let’s look at how real immigration atrocities occur rather than even considering condemnation of Migrant workers who are just as committed to economic justice and rights as any “American”, even if they aren’t sponsored by any high profile think tank or have not donated millions to politicians on the take.