Homeland uber alles.

I’m not Hannah Arendt’s biggest fan, but the prominence she gave to “banality of evil” is an accomplishment that ought to be honored through the ages. As Wikipedia explains her thesis as well as it can be concisely described, “the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths but rather by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal.” The role of the legal profession in Nazi Germany is, I think, a relatively neglected topic, but one can recognize when judges engage in specious reasoning to transform ugly, degrading, murderous, and unspeakable acts into the “normal” way of protecting our homeland.

I’ve compared the case of Maher Ahar to The Trial. I’m afraid that comparing it to fiction was my own effort to deflect the ugliness. As Glenn Greenwald describes Arar’s nightmare:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” — despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.

Yesterday, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of Arar’s lawsuit (pdf) alleging, among other things, that his treatment by U.S. officials violated his constitutional rights to due process. Why? Because he couldn’t name the people who did what they did to him:

Arar alleges that “Defendants” — undifferentiated — “denied Mr. Arar effective access to consular assistance, the courts, his lawyers, and family members” in order to effectuate his removal to Syria. But he fails to specify any culpable action taken by any single defendant, and does not allege the “meeting of the minds” that a plausible conspiracy claim requires. He alleges (in passive voice) that his requests to make phone calls “were ignored,” and that “he was told” that he was not entitled to a lawyer, but he fails to link these denials to any defendant, named or unnamed. Given this omission, . . . we agree with the District Court and the panel majority that this Count of the complaint must be dismissed. Slip op. at 24-25 (emphasis added).

So next time you’re hauled in off the streets, held incommunicado, and sent to Syria to be tortured, be sure to get down the names of the “officials” doing this to you. Otherwise, you have no constitutional protections against this treatment. It’s all in the name of national security, and that trumps all, right?

This is “judging”?

Germany: we’ll still return art stolen by the Nazis.

In connection with yesterday’s post regarding art looted by the Nazis, the Art Law Blog announces “that Germany has rejected Sir Norman Rosenthal’s call for an end to Nazi restitution cases.”

Is it time to get on from where we are and stop returning art stolen by the Nazis to the heirs of its original owners?

My friend and former student John Kelley — who now is Compliance Manager for Baystate Health but has had extensive experience in the art market — points me to an article in the German magazine Spiegel Online, which discusses British art connoisseur Sir Norman Rosenthal’s call for an end to the return of artworks looted by the Nazis to the heirs of the original owners. Although it was not until the late 1990′s that an international consensus was reached that artworks should be restored to the families of the people from whom the Nazis had stolen them, since then, according to the article, the idea has ” seemed undisputed”; after all, “[w]ho would challenge the legitimacy of the claims of the heirs of Nazi victims to their family property?”

But, as the article points out, Museums have at times disputed their obligation to return such works on the grounds that “they acquired the works in question legally and in good faith.” Individual owners have made the same argument. More recently, though, at least one prominent German member of the art world has argued that the practice of returning the art to the families of the original owners should stop because the families have been motivated by money, not by their love of the artworks:

The best-known opponent of restitution in Germany is Bernd Schultz, 67, the director of the Berlin auction house Villa Grisebach. In a speech at the Chancellery two years ago, Schultz accused the heirs of having a purely financial interest in looted art: “They say Holocaust, but they mean money.” He has never retracted the statement.

That argument seems on its face, to me, a bit disingenuous. The works that are fought over, of course, are works that are worth an enormous amount of money. If they weren’t, the issue would not be the huge one it’s been. Why shouldn’t a family who, but for the Nazis, would have had a work of art or the right to dispose of it as they had seen fit not have a better claim to it than someone who succeeded to the claim of someone who succeeded to the claim of the original thieves and murderers?

But Sir Norman’s argument is different: “[h]is motives include the desire for reconciliation” and the desire to settle issues that leave current owners who have no reason to doubt the legitimacy of their ownership rights subject to claims. It does indeed seem that at some point the sheer passage of time ought to settle one’s rights. But have we reached that point? And are we really at a point at which the vast majority of current owners have no reason to doubt the legitimacy of their rights?

The fact Sir Norman, who is himself the child of survivors and has no desire to downplay the importance of Nazi crimes, may well mean where getting closer to the day when, in his words, we must get on from where we are and “[w]e can no longer wipe history clean.”

The ACLU on the Nazis’ right to march in Skokie, Illinois

Shepard Fairey, lightning rod

I’ve pointed out both that I believe strongly that Shepard Fairey’s use of an AP photograph to create his Obama Hope poster does not infringe the pohotograph’s copyright and that Fairey has been the target of frequent criticism in the art community regarding his “originality” and regarding his apparent hypocrisy in asserting infringement claims against artists who had appropriated his images.

It has come to my attention that some criticize the Fair Use Project’s decision to take up Fairey’s cause in the case of the Obama Hope poster and think Fairey should be taken down because of his apparent hypocrisy.

As a lawyer, I strongly disagree with this position.  If, as I zealously believe, the Obama Hope poster is fair use, it would be self-defeating to those of us who support the explicit application of the fair use doctrine to transformative appropriation art and various other methods of “remixing” pre-existing works, regardless of our view of Fairey himself,  if we failed to support Fairey’s position in connection with the Obama Hope poster.

I cannot help but recall last year’s lawsuit brought by Yoko Ono, Sean Ono, and Julian Lennon seeking to require the makers of the documentary “Expelled” from using a 15 second excerpt of John Lennon’s song “Imagine” in their documentary.  As I wrote at the time, I believed the lawsuit was misbegotten and that the film’s use of the excerpt constituted fair use despite my love of John Lennon and my contempt for the film, which purports that “theorists” of “Intelligent Design” have unjustifiably been expelled from the conversation regarding evolution and the development of life.  The court hearing the case agreed with my position and dismissed the case. Not coincidentally, the Fair Use Project represented the producers of “Expelled” in that case.

Fair use is fair use, and if we believe in it we should support it wherever it exists, even if we despise the people asserting fair use.  I supported the right of Nazis to march in Skokie, Illinois, a community full of Holocaust survivors, because I believe that the right to demonstrate in public is protected by the First Amendment regardless of how vile the message being conveyed may be.  The Supreme Court agreed.

That doesn’t mean we can’t criticize Fairey when he seems to want his cake and eat it too.  (Though it may be that Fairey’s thoughts have evolved on these issues — while he sent a cease-and-desist letter to Baxter Orr for Orr’s appropriation of one of Fairey’s images, Fairey never followed that letter up with any other action despite Orr’s continued use of the image.)

You may not like Fairey.  But that does not mean we shouldn’t support his position when he happens to be right.  To fail to do so would be to cut off our noses to spite our faces.