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.