January 30, 2014

Some readers may have been surprised to hear of the kerfuffle that emerged at the Governor’s Council when Governor Deval Patrick submitted the name of Joseph S. Berman for a Superior Court judgeship.

It is difficult to find anything even remotely negative when examining Berman’s history and credentials. A respected litigator with Looney & Grossman, his pro bono representation of a Guantanamo Bay prisoner designated an “enemy combatant” is perhaps his most controversial activity. But pro bono services extended to an accused would not be very respectable grounds on which to deny a lawyer a seat on the bench – certainly not in Massachusetts, with its reputation for respecting human rights and civil liberties. Instead, it is pretty clear why the Berman nomination has proven so controversial – it has to do with little else than the 1915-1923 killing of some 1.5 million Armenians by the Ottoman Empire.

Berman’s story qualifies as one of those “only in Massachusetts” tales. I know this to be so, because, like Berman, I too was entangled in the Armenian genocide controversy by virtue of my representation of a group of clients in a civil liberties case. Indeed, the subject of the Armenian genocide has proven time and again a litmus test in the sphere of Massachusetts state politics. To even approach the controversy is to invite ire and serious political resistance by the large, successful and politically active, local community of Armenian descent. (There is a much smaller Turkish ethnic community in the Commonwealth.)

The crux of the Armenian genocide controversy is complex, but can be boiled down, for present purposes, to a couple of quite simple points. Turkey (essentially the heir to the Ottoman Empire) and Armenia have been arguing since the end of World War One over the designation to be applied to the appalling slaughter of Christian Armenians by the Ottoman Turks. While the fact of the slaughter is not in serious contention, the reasons are hotly debated, since, under applicable international legal standards, a mass killing is deemed a genocide only if it is an “[act] committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” There is respectable historical evidence on both sides of the debate, though most scholars appear to have accepted the genocide thesis. Still, the United States government has officially refrained from taking an unequivocal position in support of the genocide terminology.

I first began to understand just how narrow and politically-ordained the acceptable narrative of the Armenian genocide is in this state, when I represented a group of Massachusetts high school students and teachers in a suit against the Massachusetts Commissioner of Education. My clients were contesting the deletion of scholarly materials and citations that argued the contra-genocide viewpoint from an on-line curricular guide organized as a study resource by the state’s Department of Education. While an early iteration of said guide had included bibliographic resources offering both the conventional genocide thesis as well as an alternative to the genocide narrative (read: the Turkish version), the final draft had been expunged of all Turkish (that is, contra-genocide) viewpoints after Armenian interest groups and allies had applied pressure on the Governor and subsequently the Education Commissioner to remove them. Politicians, influenced by a locally powerful Armenian lobby, had effectively determined that only the “correct” version of history was to be made available as a resource in the public schools.

All my clients and I were arguing was that students had the right to study differing perspectives in the Armenian genocide debate. But the opposition was fearsome to the Commonwealth’s schools’ even having access to historical materials suggesting a label other than “genocide” for the slaughter of the Armenians. I myself received a number of threats merely for taking the First Amendment position that the censorship of a library of school curricular materials was unconstitutional. Ultimately, the First Circuit determined that the guide was to be considered part of the curriculum itself, not a virtual library, and was thus “government speech” which did not infringe on the First Amendment rights of my clients. (Those interested in the case can read the First Circuit’s opinion in Griswold v Driscoll[1]. See also the MLW piece I co-authored about the case, ‘Facing History and Our First Amendment’ - Oct. 31, 2005.) I have spent an entire career representing unpopular people – alleged criminals and dissidents of all stripes- but it is hard to recall a case attracting so much venom as that one. That is when I realized the deeply emotional nature of the Armenian genocide controversy as played out here in Massachusetts.

In the case of Berman’s nomination, he’s been hoist on this particular petard because he held a leadership role at the Anti-Defamation League. The ADL famously and vigorously takes the position that the slaughter of the Jews by the Nazis during the Second World War constitutes a true genocide, since religion and ethnicity were incontestably at the core of what has come to be dubbed the Holocaust. They have further vehemently opposed attributing the title “genocide” to other ethnic and religious slaughters committed throughout modern history for fear that the Holocaust will become trivialized. Furthermore, because Israel has generally made its relationship with Turkey a high diplomatic, security and economic priority, the American Jewish community has been loath to rub the Turkish government the wrong way on the Armenian genocide issue. Although Berman opposed the ADL’s attempts to deny the Armenian slaughter the name “genocide,” his internal dissent, unaccompanied by a resignation from the ADL on a point of principle, it seems, was inadequate to separate him from the organization’s official position.

Interestingly, as has been reported by Brandon Gee in Massachusetts Lawyers Weekley this past November, the ADL, in the face of vehement criticism, and under substantial pressure on account of its long-held opposition to declaring an “Armenian Genocide,” did soften its stance in 2007, calling the slaughter “tantamount to genocide.” Still, “tantamount” is too much of a qualifier for diehards in the Armenian camp. And so the seemingly endless controversy continues. Berman’s failure to pass the litmus test and entirely disassociate himself from the organization that failed to adopt, whole-heartedly, the Armenian genocide thesis, thus far has proven an insurmountable obstruction to his nomination. This all-or-nothing attitude has made the issue of the Armenian genocide a third rail in this state. Stepping too close to the contra-genocide view is a risky endeavor.

Harvey Silverglate is a free speech and criminal defense lawyer based in Cambridge, Mass.

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