"Nutcracker" on ice: dancers locked out
I'm a little sad: a family tradition of seeing the Washington Ballet's Nutcracker will be interrupted this year. It's beloved music and a beloved piece, done exceptionally well by an excellent company of dancers. Who've had enough, and rightly so.

The Washington Post's Sarah Kaufman and Darragh Johnson explain what's happening in All Toes Point To the Picket Line:

For the second night in a row, the Washington Ballet has canceled its 'Nutcracker' performance because of labor strife. It announced last evening that it would scrap tonight's show -- just as its dancers, dressed in coats and boots instead of costumes, were throwing up a picket line on the slick sidewalk outside the show's venue, the Warner Theatre.

Cutting to the chase, I hope you'll join me in supporting the dancers in a long-running dispute with Washington Ballet management. In a nutshell, the argument centers on just how grueling rehearsal and performance schedules will remain. The outcomes have arguably been remarkable performances and seasons by a relatively small company on the one hand, but not surprisingly -- the dancers claim -- increased injuries on the other.

The ballet's artistic director, Septime Webre, emerges as more than a bit of a taskmaster in this story. An earlier piece by Sarah Kaufman, "Going Toe-to-Toe," is a superb piece of reporting confirming that, and detailing the travails of one dancer, Nikkia Parish, who -- I'm convinced after reading this piece -- lost her job because of her support for unionizing the ballet company, and her willingness to stand up to Webre and the company management:

As a newcomer to the Washington Ballet from the much larger Pennsylvania Ballet and Dance Theatre of Harlem, Parish says she became alarmed at the frequency of injuries in the company. She began making a connection between the company's chaotic rehearsal schedules and the aches in her knees and her back, and in the foot that eventually became too painful to dance on.

Voted by the dancers last fall to be their representative, she not only raised concerns with Webre, she says, she proposed solutions. Both of the other companies she had danced with had been unionized. Remembering the hourly take-fives and dependable schedules, Parish added her voice to the growing campaign to organize the Washington Ballet.

Parish and three other company members acquired career-interrupting injuries during the 2004 season. Things came to a head in the winter of 2004/2005, when the dancers contacted the American Guild of Musical Artists (AGMA) and hearings were held initiating the process to voting for unionization at the Washington Ballet. Parish and another apprentice dancer, Brian Corman, testified on behalf of AGMA.

After the proceeding, Parish says, "some of the dancers said, 'Oh, you should've seen Septime's face when you got up to testify.' " She never found out if it was her words or the mere fact that she was testifying at all that caused her boss to turn, as she says others told her, "all different shades of white."

Two weeks later, the NLRB ordered the ballet to hold an election among the full company members and the apprentices, and on Feb. 14, the dancers voted to allow AGMA to represent them. One dancer, who AGMA officials say had wanted to get out of the company, had already left by this time. All the others had their contracts renewed for another year.

Except for Parish and Corman.

Wal-Mart has nothing on these guys. Take away the toe shoes and the tutu and Parish's story sounds like a garden variety slam-dunk labor law violation -- and indeed, the National Labor Relations Board is considering the case. An AGMA lawyer commented that the Washington Ballet did "exactly what I would do if I was trying to beat the union."

There's often an attitude in the artsy crowd (and sometimes in the nonprofit crowd) that their mission excuses anything, especially exploiting workers or running their operations like feudal kingdoms, beyond criticism or oversight. If anything, that's even more annoying than the mere greed motivating most corporate miscreants.

So if Webre and the Washington Ballet want to flog their dancers across the finish line one more time, I think there's no reason the dancers should put up with it any more. I'm happy to forgo my annual Nutcracker fix for that. If you'd like to lend your support, the excellent folks at American Rights At Work have set up one way for you to do so.


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EDIT, 12/19: 2d Kaufman title corrected.
UPDATE, 12/19: Posts and pretty active commenting about this at DCist and Metroblogging DC, among others.
UPDATE, 12/21: AGMA has posted a full account, "Washington Ballet's Dancers Locked Out," on its web site, along with the terms of the interim agreement it is seeking. Looks pretty reasonable to me, see for yourselves. No corresponding statement from the Washington Ballet on their site that I found, other than regret at cancelling the remaining Nutcracker performances. PS: very nice photo of the dancers about to go picketing (or just back from it) here.
posted by Thomas Nephew at 11:48:00 PM -- |    

 
It had to be Yoo
The Washington Post's Dan Eggers summarizes Thursday's New York Times story on NSA domestic spying:

President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying, sources with knowledge of the program said last night. [...]

Kate Martin, director of the Center for National Security Studies, said the secret order may amount to the president authorizing criminal activity.

The law governing clandestine surveillance in the United States, the Foreign Intelligence Surveillance Act, prohibits conducting electronic surveillance not authorized by statute. A government agent can try to avoid prosecution if he can show he was "engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction," according to the law.

And guess who thought it was legal?

The NSA activities were justified by a classified Justice Department legal opinion authored by John C. Yoo, a former deputy in the Office of Legal Counsel who argued that congressional approval of the war on al Qaeda gave broad authority to the president, according to the Times.

That legal argument was similar to another 2002 memo authored primarily by Yoo, which outlined an extremely narrow definition of torture. That opinion, which was signed by another Justice official, was formally disavowed after it was disclosed by the Washington Post.

From David Cole's New York Review of Books article on Yoo, "What Bush Wants to Hear":

...Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished. [...]

Unlike some other former members of the administration, he seems to have few if any second thoughts about what he did, and has continued to aggressively defend his views. His book The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 shows why Yoo was so influential in the Bush administration. It presents exactly the arguments that the president would have wanted to hear. Yoo contends that the president has unilateral authority to initiate wars without congressional approval, and to interpret, terminate, and violate international treaties at will. Indeed, ratified treaties, Yoo believes, cannot be enforced by courts unless Congress enacts additional legislation to implement them. According to this view, Congress's foreign affairs authority is largely limited to enacting domestic legislation and appropriating money. In other words, when it comes to foreign affairs, the president exercises unilateral authority largely unchecked by law—constitutional or international.

This point of view is ironic given Yoo's (and Bush's) alleged preference for "originalism" -- the notion that the Constitution must be interpreted strictly according to its framers' intent. As Cole points out,

The problem for originalists who believe in a strong executive and are cynical about international law is that the framers held precisely the opposite views—they were intensely wary of executive power, and as leaders of a new and vulnerable nation, they were eager to ensure that the mutual obligations they had negotiated with other countries would be honored and enforced.

Whatever, you say -- legal spluttering aside, has Yoo and Bush's approach worked? Well, no:

With respect to detainees, thanks to Yoo, the US is now in an untenable bind: on the one hand, it has become increasingly unacceptable for the US to hold hundreds of prisoners indefinitely without trying them; on the other hand our coercive and inhumane interrogation tactics have effectively granted many of the prisoners immunity from trial. Because the evidence we might use against them is tainted by their mistreatment, trials would likely turn into occasions for exposing the United States' brutal interrogation tactics. This predicament was entirely avoidable. Had we given alleged al-Qaeda detainees the fair hearings required by the Geneva Conventions at the outset, and had we conducted humane interrogations at Guantánamo, Abu Ghraib, Camp Mercury, and elsewhere, few would have objected to the US holding some detainees for the duration of the military conflict, and we could have tried those responsible for war crimes. What has been so objectionable to many in the US and abroad is the government's refusal to accept even the limited constraints of the laws of war.

The consequences of Yoo's vaunted "flexibility" have been self-destructive for the US—we have turned a world in which international law was on our side into one in which we see it as our enemy.

posted by Thomas Nephew at 12:05:00 AM -- |    

 
308-122!
Washington Post, Page A1: House Supports Ban on Torture. Josh White and Charles Babington report:

On a 308 to 122 vote, members of the House supported specific language proposed by Sen. John McCain (R-Ariz.) that would prohibit "cruel, inhuman, or degrading treatment or punishment" of anyone in the custody of the U.S. government. Though lopsided, the vote was largely symbolic and does not put the language into law.

The vote specifically instructed House negotiators to include McCain's language, word for word, in the fiscal 2006 defense appropriations bill, a decision that is not binding but carries significant political weight.

With the Senate's 90 to 9 vote in support of McCain's language earlier this year, both houses have presented veto-proof tallies to a White House that has vowed to strike down any bill that would limit the president's authority to wage the war on terrorism.

Questions are now centering on legal protection for interrogators who have crossed the line into "CID" treatment or worse in the past. I missed a blogger update conference call(!) by Human Rights First yesterday, so I don't know what the prospects are there. While these majorities seem veto-proof, I'd be tempted to take the McCain language to the bank if some kind of limited grandfather clause takes a veto off the table.

So why no dancing Snoopy? I'm glad about the House vote, but it's still nonbinding. Plus, it's bad enough you ever need to celebrate a branch of the U.S. government taking an unequivocal stand against torture and cruel, inhuman, and degrading treatment. I'm not going to get in the habit of effusive "well dones" for what should never have been an issue in the first place. (Those of you with Republican representatives who voted with the 308 should send a "thank you", though.)

But this administration continues to explore ways to circumvent and even rewrite rules governing prisoner treatment. Via a comment by reader Nell Lancaster, it appears the Pentagon is rewriting the rules of interrogation in a way designed to help interrogators go right up to the line of acceptable treatment -- and is keeping those interrogation guidelines classified. A "Think Progress" update forwards a New York Times report:

The Army has approved a new, classified set of interrogation methods that may complicate negotiations over legislation proposed by Senator John McCain to bar cruel and inhumane treatment of detainees in American custody, military officials said Tuesday.

The techniques are included in a 10-page classified addendum to a new Army field manual that was forwarded this week to Stephen A. Cambone, the under secretary of defense for intelligence policy, for final approval, they said.

The addendum provides dozens of examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations.

The Times reports a Pentagon official characterizing this as a "stick in McCain's eye." So it would seem. During debates this summer, Senator Warner alluded to this possibility, with Levin retorting that Congress would still have a view of the guidelines. So the responsibility for oversight of these guidelines and how they're implemented will rest squarely on Congress' fairly puny shoulders, since it will be potentially criminal -- even treasonous? -- to leak them to the public. It's a terrible development.

What's worse, in some ways, is that it illustrates once again that this is an administration more interested in "gaming" the law than enforcing its intent. This kind of sleaze will regularly degenerate into criminal behavior as -- oops! -- the line into "cruel, inhuman, or degrading" treatment (or worse) is crossed. Far less often, that would be proven in court. We're faced with something very like a criminal organization -- one that is constantly looking for ways to skirt clearly expressed law, break it when it deems that "necessary," and get away with that as often as possible.


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EDITS, 12/15: "limited" and "conference call(!)" added.
UPDATE, 12/15: Human Rights First bulletin says McCain and White House to announce agreement later today.
UPDATE, 12/15: Washington Post: White House, McCain Agree on Torture Ban. Interrogator legal protection issues seems to have been finessed to everyone's satisfaction for now, although not by 'grandfather clause':

[McCain] said the administration had raised "legitimate concerns" about the "rights of interrogators." To address them, the senator said, the agreement borrows language from the Uniform Code of Military Justice about giving interrogators "legal counsel and certain protections that a reasonable person might view as carrying out of orders." Referring to a landmark ruling in the war crimes trials in Germany following World War II, McCain said this provision would not "contradict the Nuremberg decision, which . . . said obeying orders is not a sufficient defense."

I have no problem with legal counsel for anyone. But "protections for carrying out of orders" is potentially a very wide loophole; though McCain's statement also gives some room for optimism on this score, the modus operandi of his adversaries in all of this does not.

UPDATE, 12/16: Marty Lederman weighs in with three posts at Balkinization: The McCain Amendment -- The Good, The (Potentially) Bad, and The Ugly; his analyses rely on news accounts, too, not McCain or White House documents. Essentially, the amendment as a conscious tradeoff for recent negative developments (secret provisions in the Army Field Manual, restricted habeas) might not have been a good deal, but by itself, it is important for ending the " overseas CIA" loophole. Lederman also raises 'good faith' concerns similar to mine, but ranks the "reasonable person" immunity (mentioned in the prior update) low on his "ugly" list.
posted by Thomas Nephew at 12:30:00 PM -- |