BEYOND RANGOON: THE MASSACHUSETTS/BURMA CASE

Beyond Rangoon: The Massachusetts/Burma Case
And One Law Student's Experience of Crime and Punishment In Burma

This June, when I graduate from Yale Law School, a British citizen named James Mawdsley will be serving his ninth month of a 17-year prison sentence in northern Burma, for the "crime" of distributing pro-democracy literature there. I think about James often. His fate might have been mine - for I, too, was convicted and sentenced to prison in Burma for the "crime" of free speech. I hope the Supreme Court also thinks about James, and others like him, frequently over the next few months, as the Justices consider the case of Natsios v. National Foreign Trade Council - also known as the Massachusetts/Burma case.

This past Wednesday, the Court heard oral argument in Natsios - addressing the constitutionality of Massachusetts legislation forbidding state agencies from doing business with corporations that operate in Burma, in order to highlight and condemn human rights abuses there. The constitutional arguments in support of Massachusetts's statute are exceptionally forceful. Even so, the moral arguments in support of the statute dwarf them.

The legal arguments are clear and strong. First, as Professor Akhil Amar has recently argued in the Washington Post, Massachusetts's law does not interfere with Congress's exclusive power to regulate foreign commerce. Rather than being a "regulation," the law is merely a spending decision - an exercise of Massachusetts's right, as a consumer, to control and deploy its own purchasing power for its own objectives. (Analogously, I don't "regulate" my commerce with Coors or Domino's if I simply decide not to buy their beer or pizza because I don't like their corporate policies.) Second, the Massachusetts statute is consistent with - not, as the Justice Department has argued, in conflict with - federal policy critical of Burma, and the current federal statute banning new investment there. Finally, the Justice Department's contention that the Massachusetts law interferes with the federal government's authority to "speak with one voice" in foreign affairs is disturbingly anti-democratic. Just as American citizens have the right to criticize their own government, so too should they - and the States they populate - have the right to criticize foreign governments, through both direct speech and spending decisions. It is our country's pride that we are not compelled, in matters of conscience, ever to speak in "one voice." That principle should not suddenly be turned on its head when foreign policy is at stake.

Massachusetts's legal arguments, then, are highly persuasive. Its moral arguments, however, are overwhelming. Having seen Burma's human rights abuses firsthand, I strongly support not only the constitutionality, but the moral necessity, of what Massachusetts has done.

In August 1998, I was part of an international group of 18 activists who went to Rangoon, Burma's capital, to hand out leaflets promoting human rights and democracy. Most of us were from Southeast Asia; some were Westerners like me. We timed our visit to honor the thousands of peaceful Burmese pro-democracy demonstrators massacred by the military junta ten years before, in 1988. We knew our actions would be risky but we believed that, as foreigners, we were unlikely to face the beating, torture, or death that Burmese citizens might have suffered, had they been the ones leafleting.

Both brutal and inept, Burma's junta has managed to impoverish the once-thriving country it rules, even as it has amassed a record of human rights violations that is exceptional even by today's standards. The United States government is, and was at the time, sharply critical of the junta's crimes. Indeed, in 1996, Congress had passed its own statute to pressure the regime. But our group - like the Massachusetts legislature, which had spoken even earlier than Congress did- wanted to express our own opposition, in our own way.

By leafleting in Rangoon, our group wanted to show our passionate opposition to the junta's policies. We also wanted to voice our support for Aung San Suu Kyi, the Nobel Peace Prize laureate who has led the nonviolent struggle for a more democratic Burma - despite being subjected to house arrest from 1989-1995 and enduring constant harassment ever since. Like the Massachusetts legislature, we were responding to Aung San Suu Kyi's call to supporters abroad "to use your liberty so that we may have ours."

Jed Greer is a third-year student at Yale Law School, and a human rights and environmental activist.