US ambassador and legal scholar Douglas Kmiec is curious about Malta’s constitutional neutrality. But has he overstepped his remit as an ambassador in a sovereign nation in seeking a clear interpretation?
James Debono
If you happen to be in church and a very polite, middle-aged American guy starts chatting with you, it very well could be the US ambassador trying to get some insights into the Maltese way of life.
I interview Douglas Kmiec against a background of folk music, which he describes as “a veritable depositary of America’s historical memory” in the tranquillity of his Attard residence, seeking to unravel the intentions of the representative of the world’s remaining superpower.
As a devout Catholic, his first knowledge of Malta was the reference to the hospitality of the Maltese towards St Paul, immortalised in the Acts of the Apostles. His appointment as ambassador came as a result of his role in Barack Obama’s campaign, as the President’s “liaison to the Catholic community” – in the midst of the campaign Kmiec even wrote a book, entitled ‘Can A Catholic Support Him?’, explaining his support, as a Catholic, for Senator Obama in spite of his pro-choice stance on abortion.
Reminiscing on his discussions at the White House prior to his appointment, he recalls the President telling him how he would “enjoy a country with 365 churches”. Now he has committed himself to visit as many of these churches as he possibly can. “I am making an effort to get to mass in the mornings if the schedule permits… churches are a place to experience the people, culture and the different cities which make Malta.”
But churches have not been the only thing on Kmiec’s mind in the few months since his arrival to Malta. Kmiec, whose legal background includes serving in the US Attorney General’s office, is particularly proficient in constitutional matters, and has lately been seeking a clear definition of Malta’s neutrality.
I bluntly ask the ambassador whether he is going out of his remit by provoking a discussion on Malta’s constitutional neutrality. “I do not think so. Sincerely, I wanted to get the best understanding of neutrality.”
As my ear catches a hook off a Bruce Springsteen song in the background (Kmiec actually shuffled through his iPod to find something that I liked…) I present Kmiec with the hypothetical scenario of the Maltese ambassador in the US, disputing on controversial parts of the US constitutional right to bear arms. Would this not offend Americans, known for their quasi-religious devotion to their Constitution?
Kmiec makes it clear that his intention was not to interfere in Maltese constitutional matters. “Neutrality surely touches on the work of an ambassador in so far as it has an effect on diplomatic and external relations. But it is obviously not up to the American ambassador (or any ambassador, Amercian or otherwise), to tell you what your Constitution means or should mean.”
What prompted him to ask for a clear definition of Malta’s neutrality during the Mediterranean Academy of Diplomatic Studies conference was the “very expansive meaning” given to neutrality by some people. “Some people gave it a very expansive meaning and that troubled me a bit.Some interpretations of neutrality would have excluded the military training that has been going on for years very successfully between the United States and the Armed Forces of Malta, training that assists the search and rescue efforts which is so vital in saving migrant families from the sea as well as efforts to stop trafficking of human beings and drugs.”
Kmiec caused a stir in political circles by suggesting that Malta’s neutrality could be abused by terrorists when he warned that “we must not allow an interpretation of the scope of a constitutional neutrality provision to be taken advantage of by those who might wish to use a Maltese port to unleash a future terror plot, whether in London, Madrid, on a flight bound for Detroit, or for that matter, may the good Lord forbid, Valletta”.
Kmiec is now convinced that this is not the case. “I am pleased that the discussion has illustrated that this is not the case.”
Once again, he blames expansive definitions of neutrality for giving such an impression. He claims that such a definition of neutrality could have even excluded training aimed at strengthening Malta’s ability to stop terrorists from bringing lethal material into the island. “That was my concern. That was the connection. I didn’t think that neutrality meant that, but I wanted somebody to confirm my understanding… I think that the last thing that any country would want would be to have their door left open to people who would unleash this type of tragic harm.”
Speaking a day after US President Barack Obama announced an increase in the total number of US troops in Afghanistan to 100,000 by mid-2010, when asked how Malta could help, Kmiec suggested that Malta could contribute by teaching agriculture skills to the Afghan people or contribute through development assistance, civilian training and aspects of good governance. “When asked what Malta’s role could be I made it clear that we have to respect Malta’s principle of neutrality, but my understanding of neutrality was that it did not preclude training and assistance for civil governments and law enforcement.”
The Maltese government has heeded Kmiec’s suggestion and proposed to conduct the training of the Afghan civil service on Maltese soil. Kmiec is not disappointed that Malta will not be sending any contingent to Afghanistan. “The fact that the training will take place in Malta makes a great deal of sense.”
He gives three reasons in defense of Malta’s choice. “It reduces the cost to Malta. It also means that wider range of advisors can participate in the exercise. And it addresses the justifiable concern on the part of some civilian advisors on going to a war zone. So it makes perfect sense to conduct the exercise here.”
Quoting from the Koran and the US constitution in a speech delivered in Cairo in June, Obama raised great hopes of a rapprochement with the Arab world by calling for a new beginning in relations between the US and Muslims around the world “based upon mutual interest and mutual respect”. Yet has the mood in the Arab street turned sour by the lack of progress made towards a quick solution of the Palestinian question?
“I think that people who expected the world to change with a wave of the hand or signature on a piece of paper may be disappointed. But people who are realistic still sense the energy and the hope in the proper direction of the Obama administration.”
Kmiec is also clear on where the US stands on this issue. “Some people say ‘where is the resolution?’ The resolution has been plain to everybody. It has always been a two-state solution. It has always been Jerusalem as a shared capital. It has always been a Palestinian nation as a separate economic entity. Everybody knows what the objective is. The question is getting there.”
But despite the US commitment to make Jerusalem a shared capital, the White House was unable to stop Israel to stop unfettered building in East Jerusalem, which is the focus of a strategy to seal off the city and ensure all of it remains under Israeli control.
“We are unhappy about that,” the ambassador promptly interjects.
But doesn’t Israel’s stubbornness on the settlement issue perpetuate the widespread perception that Washington is unable or unwilling to impose its will on Israel?
“If the US were to impose its will on Malta, you would be concerned about that and rightly so… The United States does not have the capacity to impose its will on another sovereign state.”
Still, doesn’t the USA have the leverage to put pressure on Israel which it provides with economic and military assistance? I ask. Kmiec reply reveals the US sensitivity to Israel’s concerns: “Of course it does… And it also wants the integrity of the Israeli state recognised. And it wants its daily operations to be free of terror, just as much as it wants that the same thing for the Palestinians”.
The question for Kmiec is how to get back at the table to give the requisite assurances to both sides. “The past administration ignored this almost entirely. President Obama decided initially that it was going to be resolved with the good efforts of the special envoy Senator Mitchell. We still have great confidence in Senator Mitchell but we have realised that the process is more difficult than we thought.”
Kmiec insists the new approach of President Obama is that of getting more actors involved “adding their weight to the Arab Israeli conflict… Justifiably the United States has been in the past criticized for acting unilaterally. The price for that criticism is that people should be more willing to act in multilateral way. ”
Such an approach would also address the widespread perception of pro-Israeli bias on the part of the US. “It is OK for you to say that on occasions we have been too close to Israel in the past, or that we have not been objective. But if more voices are involved to push the two sides back to the table for a constructive resolution, you would also counteract any suspicion of bias on the part of any particular party.”
Obama’s election was often portrayed as a victory of hope against fear. But has the US been gripped by a new sense of overwhelming fear since the last terrorist attempt on Christmas day?
“I went back and forth to the US during that period of various security sprees. What I saw was a heightened sense of preparation… This time our response has been more calibrated. We have the capacity at airports to do screening which we did not have before through better equipment and trained people.”
What do you feel at the invasion of privacy posed by increased security at airports? “I would rather have someone asking me to take the laptop out of my briefcase than losing 300 fellow citizens of the world on an aircraft.”
But how does he feel about being seen naked through a body scanner? “I certainly do not like that at all, but when you have that sort of technology the smartest thing one can do is to minimise its intrusion. The important thing is we have decent criteria to apply this technology. It is not based on race, ethnicity or gender. It is not applied arbitrarily but applied meaningfully to address the threat itself.”
The US has had a troublesome history with Malta’s southern neighbour, to the extent that in the 1980s Muammar Ghaddafi was described by Ronald Reagan as the mad dog of the Middle East. Kmiec insists the US government believed in the sincerity of Ghaddafi’s transformation “from the moment Libya renounced its weapons of mass destruction and rejoined the international community… That is why there is an embassy of the USA in Libya. That is why I have Muammar Ghaddafi’s saddle on display in this residence.”
The saddle – a gift to former US ambassador Anthony Gioia – is described as the attraction of the house, especially for children of migrant families who visit the ambassador’s home before being relocated to the US. “When the children come in they do not want to listen to the ambassador; they just want to ride Ghaddafi’s saddle. It has served as a very useful entertainment.”
But did the hero’s welcome for the convicted Lockerbie bomber Al-Megrahi sour relations with the USA? “This certainly annoyed some people in the USA. But as a diplomat, I have to say that if one always looks backwards and never forward, you never get a stronger relationship.”
For Kmiec the hero welcome for Megrahi was “to say the least odd and incongruous with the act of blowing up an airplane… But if you dwell on that aspect and not dwell on the fact that Ghaddafi has renounced forms of behaviour which previously put him on the wrong side of the world community, you will never get to a new level.”
For the past years, the US has been one of the few nations to share Malta’s burden on immigration through resettlement programmes.
But haven’t US policies in Somalia, which included support for warlords and tacit support for an invasion by Ethiopia, contributed to the exodus of Somalis from the country, which directly affects Malta?
Kmiec is willing to admit that “some of our policies have increased the instability in the region… We introduced a level of instability which caused a portion of the population to migrate and that is not a good thing. We have to recognise that.”
But the problem of migration is larger than that. “People in Africa, whether from Somalia, Nigeria, Sudan or Eritrea, are seeking a better life for their families and an economic opportunity, a life where they are not threatened by violence and warlords…”
They are no different from Kmiec’s own grandfather, who migrated from Poland, and his wife’s Irish parents. “When these people come to our home and sit down telling us their story we may as well be listening to the stories of an American grandparent.”
African immigrants to the US often ask him what being an American means. “It starts with being yourself and sharing that self. I tell them when you go Minnesota, Arizona, Georgia and all the places where we resettled migrant families, do not hesitate to interact with the rest of the population.”
According to Kmiec, the primary motivation for re-settlement of migrants from Malta to the US is that of showing appreciation to Malta’s efforts to maintain the safety of migrants in the sea.
“One of the ways through which the USA has said thank you to Malta for this effort in behalf of the world, is to take some of these people.”
Profile
Name: Douglas Kmiec Age: 58 Status: Married to Carolyn Keenan and together they have five children Previous appointments: Taught at Notre Dame Law School from 1980 to 1999; nominated by President Ronald Reagan in 1988 as head of Office of Legal Counsel (OCL); Recently held the Caruso Family Chair in Constitutional Law at Pepperdine University School of Law
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