Stuart E. Eizenstat and the Western Sahara (Imperfect Justice: Looted Assets, Marginalized Labor, and the Unfinished Business of World War II)

In my previous post on Covington & Burling and the Western Sahara, the name of former U.S. official Stuart E. Eizenstat comes up several times. As a Covington Partner, head of their international practice, and lead lobbyist on the OCP account he is up to his neck in this rogue law firm’s illicit and unethical behavior involving Morocco and the Western Sahara. In a nutshell, he is facilitating the Kingdom’s plunder of the territory’s resources, advocating for the legitimization of the illegal occupation, and posing as a domestic lobbyist when he is in fact a Foreign Agent of Morocco.

Macher

During my many years working for the Jewish Forward newspaper, I heard the name of Stuart E. Eizenstat in only the most reverential of tones. Capping off an illustrious career in government under several presidents, he served during the two Clinton administrations as U.S. Ambassador to the European Union (1993-1996), Under Secretary of Commerce for International Trade (1996-1997), Under Secretary of State for Economic, Business and Agricultural Affairs (1997-1999), and Deputy Secretary of the Treasury (1999-2001). What he is most remembered for within the Jewish community, however, is his role in the late 1990s as Special Representative of the President and Secretary of State on Holocaust-Era Issues. Credited with having “successfully negotiated major agreements with the Swiss, Germans, Austrian and French, and other European countries, covering restitution of property, payment for slave and forced laborers, recovery of looted art, bank accounts, and payment of insurance policies,” he was a macher and a mensch, a real hero in the Jewish world. Leaving government at the end of the Clinton administration in 2001, Eizenstat moved on soon afterwards to the prestigious Washington law firm of Covington & Burling, where he has remained to this day.

Maghrebian integration

Shilling for Morocco appears to be a relatively recent preoccupation for Eizenstat. Economic integration of the Maghreb, however, has been a long-term project -- dating back to the U.S.-North Africa Economic Partnership (Eizenstat Initiative) that he launched in the late 1990s during his stint as Under Secretary of State for Economic, Business and Agricultural Affairs in the Clinton administration. In his own words, “The goal of that initiative was to develop a closer relationship between the United States and the countries of the Maghreb and to encourage increased trade, investment and job creation.” Reflecting the regional nature of that Initiative, Eizenstat’s statements at the time about the three countries included in the Initiative, Algeria, Morocco, and Tunisia, were appropriately evenhanded. While at times acknowledging the “political problems” bedeviling the relationship between Algeria and Morocco, he was careful not to pick sides on the Western Sahara question. Rather he stressed U.S. support for the initiatives of Former Secretary of State James Baker III and the United Nations to resolve the crisis, and stated his hope that increased economic cooperation would spill over into the political arena. .

Eizenstat’s journey to the dark side came in two stages.

Collusion in Plunder

The first dates back to at least the early-/ mid-2000s (in 2008 Eizenstat was saying that OCP was already a long-time client) when OCP signed on with Covington to provide legal cover for Morocco’s illegal extraction and export of phosphates from the occupied Western Sahara. The defining document of this period is the infamous 2007 White Paper “Legality of Phosphate Resource Development in the Sahara Region,”   which Covington disseminated to phosphate importers to assure them that it was OK to deal in pilfered Western Saharan product. Eizenstat’s personal responsibility for this unethical collusion lies in his ownership and leadership positions at Covington as Partner and Head of the international practice.

While Eizenstat had during this period clearly taken a pro-Moroccan stance in regard to the phosphate plunder, he appears to have at least tried to remain somewhat neutral about regional issues, including the Western Sahara. In 2008, at a Maghreb Center conference, Eizenstat announced that he had started work on a new initiative to increase Maghrebian integration. Acknowledging the failure of his earlier initiative to gain any traction over the previous decade and spurred by reports that Al Qaeda affiliates were exploiting this lack of cooperation to gain footholds in the region, he outlined his plan to, in effect, double down on his earlier effort. The new one would broaden the effort to include Mauritania, Libya, and the European Union. Proactively addressing any perception of bias related to the fact that the Moroccan Office Cherifien des Phosphates, a partner in his new Initiative, was his long-time client at Covington, he tells the audience at the Maghreb Center:

My work is supported by Mostafa Terrab, the CEO of OCP (the largest business entity in Morocco) and formerly head of the World Bank’s “Information for Development” program.  I met Mr. Terrab because OCP is a long-time client of Covington & Burling.  We discussed the opportunities for economic development in the Maghreb, and he agreed that OCP would support the initiative because he and I share the belief that economic development in the region will benefit the private sector in all five countries.  My work, however, is not American or Moroccan in outlook.  My objective is to benefit all five countries of the region. (my emphasis)

This evenhandedness was not to last long.

Collusion in Illegal Occupation

With the commencement of Covington’s lucrative lobbying relationships with OCP in 2008 and with Kosmos Energy in 2009 (with over $2 million dollars rolling in by 2012), Eizenstat completed his transformation from apologist for plunder into a full-fledged Moroccan agent. In addition to providing legal cover for Morocco’s plunder, he was now actively lobbying the U.S. government to legitimize that plunder as well as the occupation by signing on to Morocco’s autonomy proposal. On the most important regional issue, the Western Sahara, his work was now completely “Moroccan in outlook.” The defining document of this stage is the rabidly pro-Moroccan lobbying paper, “Why the Maghreb Matters” (March 2009), of which Eizenstat served as co-chair. As I spell out in some detail in earlier posts, this document urges the U.S. government to support settlement of the Western Sahara crisis solely on Morocco’s terms. Eizenstat’s clear message here is, “screw the Algerians.” So much for evenhandedness.

Shame

Again, as Partner and head of the international practice at Covington & Burling and lead lobbyist for the OCP account, Stuart Eizenstat is up to his neck in a host of violations of international and U.S. law and unethical practices.  He is using his good name and extensive clout in the halls of power to convince lawmakers to support Morocco’s theft of Western Saharan resources and illegal occupation – policies that clearly benefit his clients at the expense of the indigenous Sahrawi.  Ironically, the title of his book on the holocaust assets, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II, pretty much says it all. Substitute “marginalized” for “slave” and you have a good overall description of the Western Sahara situation today. The Nazis stole billions from the Jews and the Moroccans are stealing billions from the Sahrawi. There is moral equivalence here and if anyone should understand this it is Stuart Eizenstat. His support for Morocco’s plunder of the Western Sahara is disgraceful; his support for terminating the Sahrawi’s dreams of an independent homeland is unconscionable. Shame on Stuart Eizenstat.

Covington & Burling: Rogue Lobbyist for Morocco on the Western Sahara

Since 2008, the prestigious Washington law firm of Covington & Burling has moved into the forefront of those U.S. companies colluding in the illegal Moroccan and corporate plunder of the Western Sahara and lobbying American law makers to legitimize Rabat’s illegal occupation of the territory.  While the illegality of the plunder and the occupation is well-established under international law, Covington is, in addition, breaking U.S. law by lobbying for the Office Chérifien des Phosphates (OCP), the fully state-owned Moroccan phosphate company, without registering under the Foreign Agents Registration Act (FARA) as a foreign agent of the Moroccan government. In addition, they are also lobbying on behalf of U.S. energy company Kosmos Energy, which is defying the United Nations by illegally exploring for oil in the Western Sahara. Furthermore, Covington’s success at avoiding Department of Justice (DOJ) scrutiny of their OCP lobbying activities appears suspiciously linked to the lobbyist “revolving door,” with long-time Covington lawyer Eric Holder currently serving as Attorney General and reportedly a “list nine pages long” of former  U.S. government lawyers currently employed by Covington (including eleven who ”used to work in the White House”).

Plunder

The illegality of natural resource extraction from the Western Sahara has long been recognized under international law. A recent analysis, The Plundering of the Sahara: Corporate Criminal and Civil Liability for the Takingof Natural Resources from Western Sahara by Canadian law professor and barrister J.J.P. Smith is scathing:

The taking of natural resources from Western Sahara given a continuing forcible occupation and the circumstances of a stalled process for self-determination can only be described as theft. The facts support that allegation. The exploitation of the territory’s two primary resources [phosphates and fish] enriches the Moroccan state, the corporations trading with it, and the European Union as a result of the extended 2007 Fisheries Partnership Agreement (and Russia under its 2010 fisheries agreement). It is widely accepted that the benefits do not reach the Saharawi people, most especially those in the refugee camps at Tindouf. The substantial weight of opinio juris, the uniform refusal of states to recognize Morocco’s sovereignty over Western Sahara, and the earlier cases of non-self-governing peoples’ natural resources make out the failure to satisfy both parts of the “Corell test”. This first stream of international law has been clearly violated.

Covington & Burling’s collusion with Morocco in the plunder of Western Saharan resources is related to their client/lobbyist relationships with OCP and U.S.-based Kosmos Energy.  Lobbyist Disclosure Act of 1995 (LDA) filings show that lobbying for OCP began in 2008 with remuneration through 2012 totaling $510,000 ('08-'11, '12) . A 2008 statement by head of Covington’s international practice, former high level U.S. government official StuartEizenstat, indicates that the client relationship, however, goes back much further.  LDA filings for Kosmos began in 2009 and list payments of $1,830,000 ('09-'12) through 2012. Under international law, OCP is illegally extracting and selling Western Saharan phosphates and Kosmos is illegally exploring for oil in the Western Sahara.

OCP

According to the their website, OCP “extracts, markets and sells phosphate and its derivatives, phosphoric acid and fertilizers” and is “the world’s largest exporter of phosphate rock and phosphoric acid, and one of the world’s largest fertilizer producers.”  Since 1975 when Morocco invaded the Western Sahara and occupied the portion of the territory where the phosphate mines in Bou Craa are situated, OCP and Rabat have been systematically looting the Sahrawi’s phosphate wealth. The current volume and value of this extraction is estimated at three million tonnes and upwards of a half a billion dollars annually.

Western SaharaResource Watch (WSRW) has been writing since 2008 about Covington & Burling’s collusion with OCP.  In particular, WSRW has investigated a secret “independent opinion,” written by Covington that has “been used by phosphate importing firms to defend their unethical trade.” Despite repeated attempts to get a copy of that opinion, WSRW has reported:  “the opinion has never been released to the public. The law firm consistently refuses to reply to requests from civil society or Saharawis.” An April 2012 paper from one of the U.S. importers, PotashCorp, titled “PhosphateRock from Western Sahara,” gives us, however, a pretty good picture of Covington’s point of view.   Acknowledging that they had “recently received, on a confidential basis” two legal analyses by Covington & Burling and DLA Piper, they tell us that those opinions “concluded that OCP’s operations in the region directly benefit the people of the region and are consistent with international legal obligations.” This conclusion is directly contradicted by any number of reports and analyses that the indigenous Sahrawi benefit little from the phosphate trade, hold few of the phosphate industry  jobs, and have never been consulted on or acquiesced in the exploitation. While it would certainly be enlightening to see a copy of Covington’s opinion, they are obviously basing their conclusion on the condition of the several hundred thousand illegal settlers who have been lured to the territory with subsidies and jobs. The Fourth Geneva Convention specifically prohibits colonizing occupied territories. This is directly akin to concluding that life on the West Bank is lovely, based on the living conditions of the illegal Israeli settlers. WSRW supplies us with a good list of Recommended Reading on all this.

Covington lobbying on behalf of OCP has been hard to trace, specifically because they have chosen to register their work under the LDA, which does not require the registrant to list contacts or activities (see more on this below). All we really learn from the listings is their intention to lobby several governmental agencies and Congress on “Promoting economic integration in the Maghreb and enhanced economic relations between the Maghreb and the United States.”  It does not appear to be a coincidence, however, that two of Covington’s registered OCP lobbyists, Stuart Eizenstat and Marney Cheek, should turn up in 2009 as participants in a thing called the North Africa Policy Paper Project that produced the seriously flawed and thoroughly biased policy paper, Why the Maghreb Matters: Threats, Opportunities, & Options for Effective US Engagement in North Africa. Eizenstat is listed as co-chair (along with I.William Zartman) and Cheek as staff.  In a nutshell, the report identifies resolution of the stalemate over the Western Sahara as the key to unlocking the potential of greater Maghrebian integration and controversially endorses “the [Moroccan] formula of autonomy/sovereignty now before the UN” as “a basis for a viable solution.”  The Moroccan autonomy plan has been widely condemned by international legal scholars – including our foremost self-determination authority, Hurst Hannum - as illegal under international law because it doesn’t provide for an expression of the will of the original inhabitants of the territory.

That Eizenstat, in particular as co-chair of the report, should come out so strongly in support of an illegal proposal that, in effect, legitimizes Morocco’s and client OCP’s resource theft is extremely fishy; the perception created is clearly that the report is nothing more than a Morocco-financed lobbying document. Furthermore, the decision of these two Covington lobbyists not to even mention in the report that they are paid lobbyists for OCP makes it even more damning.

Kosmos

By taking on Kosmos Energy as a lobbying client in 2009, Covington & Burling greatly increased their exposure to Morocco’s plunderous activities and designs.  According to WSRW, “Kosmos Energy got their first foothold in Western Sahara in October 2004, and has remained since. They now hold a 75% interest in a block offshore Boujdour.”  Kosmos’ exploration activities are ongoing, and their website indicates that “Initial exploration drilling could commence in the latter part of 2013.”

In a 2002 Opinion to the Security Council on the legality of exploration, Hans Corell, the UN’s Under-Secretary for Legal Affairs, concluded that, “if further exploration and exploitation activities were to proceed in disregard of the interests and wishes of the people of Western Sahara, they would be in violation of the principles of international law applicable to mineral resource activities in Non-Self-Governing Territories.” While U.S. oil company Kerr McGee ceased exploration activities in 2006 in the wake of the Corell opinion and a divestment campaign waged against it spearheaded by WSRW, Kosmos has adamantly continued with “further exploration” in blatant “disregard of the interests and wishes” of the indigenous Sahrawi.  

Covington’s $1,830,000 worth of work for Kosmos, according to their LDA registrations, consists of lobbying the Departments of State and Treasury to gain “U.S. government support with respect to the client’s investment abroad.” While Kosmos’ website lists operations in Ghana, Cameroon, Mauritania, and Suriname, in addition to those in Morocco, only the operation in Western Sahara appears sufficiently controversial to warrant such a sizable lobbying expenditure. (Revealingly, in its literature, Kosmos stubbornly insists on including the Western Sahara within Morocco, a sentiment that not one country shares.) And what kind of support does Kosmos need?  In order to profit from their exploration investment, Kosmos first and foremost needs U.S. government recognition of Moroccan sovereignty over the Western Sahara.  As long as the Western Sahara debacle remains unresolved, any attempt by Morocco and Kosmos to exploit oil finds would undoubtedly be met with extreme international condemnation and boycott.  While it is anyone’s guess what Alan P. Larson, Covington’s lead Kosmos lobbyist, is peddling to State and Commerce, I would say it’s a good bet he’s pushing the same stuff as his old government buddy and fellow Covington lobbyist Stuart Eizenstat. Ironically, before moving to Covington, Larson served from 1999 to 2005 as Under Secretary of State for Economic, Business and Agricultural Affairs -inheriting that position from Eizenstat who held it from 1997 to 1999 before HE joined Covington.    

FARA

I have long been perplexed by Covington & Burling’s ability to avoid the detailed requirements of registering with the Department of Justice under the Foreign Agents Registration Act (FARA) as a Foreign Agent of Morocco, given their long-term client/lobbying relationship with OCP. They have opted instead to register with the far less “onerous” LDA.  Foreign Lobbying Influence Tracker, a foreign lobbyist watchdog, gives a good concise synopsis of the difference between the two systems:

Lobbyists for foreign clients who register under FARA disclose far more information about what they do to further the interests of their clients than traditional lobbyists, who, under the Lobbyist Disclosure Act of 1995, report to Congress. Under the LDA, lobbyists need only disclose the governmental bodies they contact, and need not specify the number of contacts they have or the dates of those contacts.

FARA is explicit that lobbyists who work for “foreign principals” are required to register as foreign agents and file very detailed reports of their contacts and activities under FARA rules. “Foreign principal” is defined as “a government of a foreign country,” “a foreign political party,” a foreign “person”, or “a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country.” [my emphasis]  It is a mystery to me how lobbying for OCP, clearly a foreign principal under this definition, does not trigger FARA. It is equally a mystery how Covington & Burling has managed to avoid censure since they are very overtly breaking the law here. Finally, one really has to wonder what it is they are trying to hide, since over the last few years they have apparently had no problem lobbying as Foreign Agents under FARA for the Philippines, Liechtenstein, and Mexico.

What to Do?

In summary, for several years Covington & Burling, through their lobbying for OCP and Kosmos, has been colluding with Rabat to get U.S. government legitimization of Morocco’s plunder and occupation of the Western Sahara. They are up to their necks in very dirty business, which includes advocating in favor of several gross violations of international law regarding occupied and non-self-governing territories, and lobbying illegally under U.S. law for a foreign principal.

On the plunder, a good place to start would be to support the extraordinary work being done by Western Sahara Resource Watch. They have an exemplary record of reporting, research, analysis, and activism involving Morocco’s illegal exploitation of Western Saharan resources. This support is getting ever more critical as Rabat expands their exploitative interests from phosphates, fish, and oil, to include agricultural products, wind/solar energy, and more, and gets closer to commencement of exploration drilling for oil.  And if oil is someday discovered off the Western Sahara, all the gloves will be off.

On the illegal lobbying, the Department of Justice should audit Covington over their avoidance of FARA registration. As I detail above, there is plenty of evidence that shows that they are lobbying for Rabat and thus should be registered as a Foreign Agent under FARA.  When foreign governments are paying for policy, we have the right to know; and it is clear to me that paying for policy is exactly what Morocco is doing, directly through OCP (and indirectly through their proxy Kosmos). One observer – whose main concern is the Israeli lobby – appears to have hit it on the head: “Since the 1960s white shoe law firms such as Covington & Burling…have worked diligently to gut FARA and water down its investigative and enforcement mechanisms.“  Nevertheless, FARA does provide for criminal prosecutions, as well as “civil and administrative resolution of FARA questions.” Bring it on.

Everyone who cares about justice for the Western Sahara should write their members of Congress. The overall success of the Morocco lobby in garnering congressional signatures in support of Morocco’s expansionism is based on the assumption that there is no downside to supporting our good ally Morooco. In addition to the ethical and legal downside discussed above, there is also a huge downside on the ground. Official U.S. recognition of Moroccan sovereignty over the Western Sahara would be a catastrophe, as it could very well precipitate a mass uprising in the region by the hundreds of thousands of Sahrawi who despise the monarchy and desire the self-determination that the UN has promised them for fifty years. Furthermore, any U.S. attempt to resolve the Western Saharan crisis on Morocco’s terms would destroy U.S. and Moroccan relations with Algeria, not to mention dreams of greater Maghrebian integration, for years to come.

Finally, I feel that the time is long overdue to mount a campaign to boycott Moroccan goods and travel to Morocco. WSRW is more than doing its part to attack the plunder by companies and countries of Western Sahara’s resources. Consumers should do their part in countering Morocco. Don’t buy Moroccan clementines. Before you buy argan oil, think of the smashed faces of Sahrawis beaten up by Moroccan security forces. Don’t buy anything “made in Morocco.” And certainly don’t vacation in Morocco or use Royal Air Maroc. Having spent a good chunk of last year in Tunisia, I wholeheartedly endorse your visiting instead that lovely nascent democracy.

On Morocco and the Western Sahara, Covington & Burling is operating as a rogue law firm and must be reined in and forced to come clean.

A Tale of Deception and Dishonesty about Morocco’s Autonomy Plan for the Western Sahara

Likewise even the touchy issue of Moroccan sovereignty over the former Spanish Sahara has seen forward movement. In 2007, the government advanced a proposal to break the long-standing impasse over the issue by offering generous autonomy to the area (including not only an elected local  administration but also ideas about education and justice and the promise of financial support). Under the plan, the only matters that would remain in Rabat’s control would be defense and foreign affairs as well as the currency. The regional authority, meanwhile, would have broad powers over local administration, the economy, infrastructure, social and cultural affairs, and the environment. No less senior a U.S. official than Secretary of State Hillary Rodham Clinton has described the autonomy proposal as “serious, credible, and realistic.”

From “Morocco’s Momentum” by J. Peter Pham, Journal of International Security Affairs. Spring/Summer 2012

Since the ”Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region” was released by Rabat in 2007, the Moroccan government, and its lobbyists and fellow travelers in the U.S., have united behind the proposal, portraying it as a noble and generous compromise to once and for all end the thorny Western Sahara crisis. I quote the above paragraph from a recent article by J. Peter Pham because it is typical of the deceptive and dishonest pro-autonomy material flooding the media of late.

The paragraph begins with the predictable pro-Moroccan spin: “Likewise even the touchy issue of Moroccan sovereignty over the former Spanish Sahara has seen forward movement. In 2007, the government advanced a proposal to break the long-standing impasse over the issue by offering generous autonomy to the area….”

Pham’s painting Morocco’s offer of autonomy as “forward movement” is puzzling given that the Polisario Front has categorically and adamantly rejected the proposal and refuses even to discuss it.  Furthermore, the series of meetings between the parties organized by UN Personal Envoy Christopher Ross in the wake of Rabat’s autonomy proposal have failed miserably to bring the parties closer together. With pro-independence demonstrations in the occupied territory becoming increasingly frequent and confrontational and with the Polisario’s renewed contemplation of a return to arms, it is much easier to see Morocco’s autonomy proposal as contributing to a deterioration of the issue.

Similarly, Pham’s proposition that Morocco is “offering generous autonomy to the area” is pure unadulterated spin. Morocco can offer anything it wants, but unless the offer includes independence as an option it is clearly incompatible with widely accepted international law, is unlikely to be considered by the Polisario and the Western Saharans, and if forced on the region is unlikely to work.  And, of course, Morocco took independence off the table years ago. The Moroccan Initiative is nothing more than a ploy to get international legitimization for its illegal occupation.

Having informed us of the generosity of Morocco’s proposal, Pham continues: “Under the plan, the only matters that would remain in Rabat’s control would be defense and foreign affairs as well as the currency.”  This is the point where Pham’s commentary spins out of control and lurches over the line from spin into flat out dishonesty. Anyone who has actually read the Moroccan Initiative knows that what Pham is saying here just isn’t true. Even more damning, it is far from the truth.  Items 13 and 14 of the Moroccan Initiative deal specifically with the proposed division of powers between the autonomous region and Rabat:

13. The Sahara autonomous Region will have the financial resources required for its development in all areas.  Resources will come, in particular, from:

· taxes, duties and regional levies enacted by the Region’s competent authorities;
· proceeds from the exploitation of natural resources allocated to the Region;
· the share of proceeds collected by the State from the exploitation of natural resources located in the Region;
· the necessary funds allocated in keeping with the principle of national solidarity;
· proceeds from the Region’s assets.

14. The State shall keep exclusive jurisdiction over the following in particular:

· the attributes of sovereignty, especially the flag, the national anthem and the currency;
· the attributes stemming from the constitutional and religious prerogatives of the King, as Commander of the Faithful and Guarantor of freedom of worship and of individual and collective freedoms;
· national security, external defense and defense of territorial integrity;
· external relations;
· the Kingdom’s juridical order.

While the major statement of those areas in which the State “shall keep exclusive jurisdiction” is contained in Item 14, I have also included Item 13 for what it has to say about control of natural resource income.  In particular, I point to the statement that, “[financial] Resources will come, in particular, from … the share of proceeds collected by the State from the exploitation of natural resources located in the Region;” What this tells me is that Rabat envisions retaining control over the Western Sahara’s natural resources and doling out a portion to the region. In other words, income from the Western Saharan phosphate mines – which alone would make an independent Western Sahara one of the largest phosphate exporters in the world – would continue to flow to Rabat. Similarly, it appears that revenues from fishing licenses sold to foreign states to fish in Western Saharan waters would also be retained by Rabat. And if oil is one day discovered in Western Saharan waters, anyone who thinks that the autonomous region would get a fair share of the revenues has probably been smoking too much Rifian hashish.

While Pham for some reason identifies only the “currency” as “an attribute of sovereignty” that would be retained by Rabat, the Initiative goes much farther specifying “the attributes of sovereignty, especially the flag, the national anthem and the currency.”

The next category of Item 14 is totally ignored by Pham: “the attributes stemming from the constitutional and religious prerogatives of the King, as Commander of the Faithful and Guarantor of freedom of worship and of individual and collective freedoms;” Keep in mind that, even with the recent constitutional changes, Morocco is still a far cry from a western-style constitutional monarchy such as Spain or the UK. The crown retains the bulk of the power in the country. This assertion of the primacy of the King’s constitutional prerogatives means that democracy in the region would be just as flawed as in the rest of Morocco, and the Crown would have carte blanche to interfere as it deemed necessary in the autonomous region’s affairs. Similarly, Pham’s ignoring the bit about the religious prerogatives of the King is inexcusable since the hundreds of thousands of Sahrawi who despise the King and resent his authority would chafe mightily at any assertion of these religious prerogatives.

Of the next areas reserved for Rabat, “national security, external defense” and “external relations” appear to be adequately covered by Pham under “defense and foreign affairs.”  He ignores, however, Rabat’s exclusive jurisdiction over “defense of territorial integrity.” Inclusion of this specific item in the Initiative means to me that the Crown retains the right to prevent the autonomous region from seceding. And I think it is fair to assume that ultimately what this means is that Rabat would have the right to cancel autonomy if “territorial integrity” were threatened.  And if you believe, as I do, that any imaginable autonomy plan is doomed to failure, this is not a very encouraging feature.

Finally, Pham totally ignores the Initiative’s keeping “the Kingdom’s juridical order” within Rabat’s exclusive jurisdiction. Given the Kingdom’s notoriously corrupt and non-independent judiciary, this is likewise a recipe for disaster. The judiciary could and would overrule anything in the autonomous region the Crown found objectionable.

Again, it is not my purpose here to give a comprehensive critique of the Moroccan Initiative. That is a topic for another day, because there are just too many things seriously wrong with the plan. My purpose is to highlight the extent to which pro-Moroccan commentators, and specifically J. Peter Pham, have been systematically lying about the autonomy plan to make it more palatable for US policymakers.

Once again, Pham informs us that “Under the plan, the only matters that would remain in Rabat’s control would be defense and foreign affairs as well as the currency.” In recap, he neglects to inform us that under the plan, control of natural resources, all the attributes of sovereignty, constitutional and religious prerogatives of the King, defense of territorial integrity, and the juridical order would also remain in Rabat’s control. The autonomy plan is far from being “generous.”

In conclusion, I think a short comment is in order about why I like to pick on J. Peter Pham so much. After all, he is hardly the only one out there lying about Morocco’s autonomy plan.  Former Congressman and notorious Sahrawi hater Tom Lantos, for instance, characterized the plan even more dishonestly than Pham at a 2007 Congressional hearing: “Only external security and foreign affairs will be controlled by the central Moroccan government.” Right.  It’s just that Pham, as director of the Michael S. Ansari Africa Center at the Atlantic Council, is a widely known and visible Africa scholar who is very much a professional researcher. When he gets something very very wrong (as he does with the autonomy proposal), I think you can be confident that it is not because he has done sloppy or lazy research, but because he is pushing some agenda. In other words, I am totally sure that he has thoroughly read the Moroccan Initiative, and he just chooses to lie about it. Of course, this begs the question of what his agenda is. Is it a zionist thing? The fact that the quote under discussion here appeared in the in-house rag of the Jewish Institute for National Security Affairs (JINSA), a right-wing zionist think tank, might support this thesis. Or is it the neo-con thing? His thoroughly inconsistent support of South Sudanese independence and simultaneous rejection of the far more justifiable independence of the Western Sahara might support this idea. Or is he just a Moroccophile? I. William Zartman’s faulty research on the Western Sahara would be a precedent here.  Or is it a Jarch Capital thing (more on this at a later date)? Who knows? What I do know is that he gets a lot of things seriously wrong on the Western Sahara, and he should be held accountable.

In the end, however, the important point is that NO autonomy plan will work. Whether autonomy is as good as Pham would have us believe or whether it is a bad as the actual Initiative, the Sahrawis are unlikely to accept it given their long history of opposing Moroccan rule.

The New York City Bar Association recently came out with a marvelous study on the legal aspects of the Western Sahara crisis, "The Legal Issues Involved in the Western Sahara Dispute: the Principle of Self-Determination and the Legal Claims of Morocco." The study concludes that “any plan which eliminates the independence option for the exercise of self-determination is illegitimate under well-established international law” and “limiting the choice of the people of Western Sahara to the Moroccan 'Autonomy Plan' does not comply with international law.” In their “Recommendations for a Way Forward,” they offer up a very sober and realistic set of options for once and for all resolving the crisis:

 (1) Enforcement of the original U.N.-OAU Settlement Plan:

Under this alternative, the referendum would be conducted by MINURSO in accordance with the provisions of the Settlement Plan agreed to by the parties to the conflict, and the list of eligible voters established by MINURSO, under the supervision of the Security Council and the AU, and consistent with internationally recognized legal norms.

(2) Enforcement of a version of the Peace Plan, or an alternative plan which provides for an act of self-determination with an option for independence, and which ensures that the electorate will be those entitled to the right to self-determination under international law; Under this alternative, a referendum would ultimately be held which includes – among other options – a ballot option for independence. The contours and the specifics could vary, so long as the provisions are aimed at ensuring that the decision is made by the “people” of Western Sahara.

(3) Order negotiations on a “political solution” with preconditions, which include (1) the requirement that all options for self-determination be included, including independence, and (2) a timetable for such negotiations, after which, if no agreement is reached, a referendum will be held with all options available.

Anouar Boukhars, More Trash Talk on the Western Sahara, and the Rise of the Moroccan Americans

Anouar Boukhars, a young Moroccan-American political scientist, Maghreb expert, and professor at McDaniel College in Maryland has recently become the darling of the Morocco lobby in its attempt to get US government support for Rabat’s illegal annexation of the Western Sahara. A prolific researcher, journalist, and commentator on subjects North African, he has over the last couple years served on several panels and has authored a number of articles on the Western Sahara issue. In particular, a long piece for the Carnegie Endowment for International Peace in March 2012, “Simmering Discontent in the Western Sahara,” is being referenced with some regularity for its fear-mongering on alleged collusion between the Polisario and terrorist groups in the region and for its strong support for Rabat’s autonomy proposal for the territory.

I have read Boukhars’ article several times and it seems that with each rereading I find more things wrong with this horrendously biased analysis.

Boukhars on International Law

For starters, he completely ignores the international law of the Western Sahara. The only time “international law” even appears in the article is in the introduction when he states, “The Polisario claims that under international law, as a former colony, the Western Sahara should have been granted independence.” Of course, the United Nations, the International Court of Justice, and customary international law also make this claim. Similarly, in his long discussion of the friction between the indigenous Sahrawis and the Moroccan settlers in the occupied territory, it never occurs to him to mention that under Geneva Convention IV it is illegal for the settlers to be there in the first place given that Morocco is a signatory of the Geneva Conventions. I strongly urge anyone with an interest in the legal aspects of this issue to take a look at the recent study by the New York City Bar Association, “The Legal Issues Involved in the Western Sahara Dispute,” which is a wonderfully clear and concise expression of the international law that Boukhars so flippantly ignores and Morocco so egregiously violates.

Boukhars on Sahrawi Nationalism

Boukhars’ discussion of Sahrawi nationalism in the occupied territory is, likewise, marred by misinformation and misanalysis. Take, for instance, the following assertions:

While ethnic nationalism was never a force to reckon with in the Moroccan-controlled Western Sahara, ethnic identity is becoming more pronounced. This does not translate into support for separatism, but it does enhance the forces of divisiveness, which erode the rule of law and undermine the existing social fabric. 

…

Separatist tendencies have always been negligible and the Polisario’s credibility very low, as leaked U.S. State Department cables from Morocco revealed. “Extensive interviews and independent sources in the territory,” wrote senior American official Robert P. Jackson in a confidential document in 2009, “suggest that the principal goal of most Sahrawis is more self-government than self-determination.”

…

The disappointment of those Sahrawis who are disenchanted with Moroccan rule does not stem from ideological convictions but from political, social, and economic deprivations.

I find this denigration of Sahrawi nationalism and dismissal of Sahrawi separatist sentiment totally baffling given the large body of evidence supporting the opposite view, that a sizable portion of the indigenous Sahrawi population in the occupied territory is fervently nationalistic and supports independence, as well as the Polisario. From the original UN General Assembly mission to the territory in 1975 that concluded that a majority of the inhabitants supported independence and the Polisario to the periodic large demonstrations for independence from 1999 to the present, the strength of Sahrawi nationalism and “separatist” zeal are irrefutable. Boukhars’ blindness to this is truly delusional. Jacob Mundy’s “The Dynamics of Repression and Resistance: Sahrawi Nationalist Activism in the Moroccan Occupied Western Sahara” is a good place to start to get the real reality here.

And then there is the issue of Robert P. Jackson, mentioned above by Boukhars as his big authority on the lack of “separatist tendencies” among the Sahrawi. Yes, this is the very same Robert P. Jackson whose reporting from the U.S. embassy in Morocco was categorized by Stephen Zunes in his article, “Wikileaks Cables on Western Sahara Show Role of Ideology in State Department,” as “One of the clearest examples of this phenomenon of allowing ideology to interfere with honest reporting.” Jackson is a particularly clueless analyst of Western Saharan affairs and is hardly a reliable authority on any of this.

Boukhars on Polisario Terrorism

Another part of the report that is particularly reprehensible is Boukhars’ attempt to smear the Polisario with allegations of ties to terrorism. In his article summary, Boukhars tells us:

AQIM [Al-Qaeda in the Islamic Maghreb] and its offshoots in the Sahel are already working to expand their partnership with smugglers from massive refugee camps in Tindouf, Algeria, and to enlist recruits among the disenchanted youth there. If AQIM strengthened its alliance of convenience with the Polisario, the movement that has long fought for Western Sahara’s independence, a formidable terrorist organization could emerge.

The problem here is that there just isn’t any evidence of this mythical Polisario-AQIM alliance of convenience, outside of the trash talk coming out of Rabat. The Polisario has no history at all of cooperating with or supporting any terrorist groups, and they have never been on the U.S. State Department’s list of terrorist organizations. Furthermore, U.S. officials who monitor the Polisario are extremely skeptical of any such ties. At a 2010 briefing, Daniel Benjamin, Ambassador-at-Large, U.S. State Department Coordinator for Counterterrorism, addressed a question about whether terrorists were taking advantage of the Western Sahara crisis. His response:

We are obviously always concerned that al-Qaida in the Maghreb could expand its operations, but frankly, I wouldn’t quite get it if they were expanding into that region.  I’m not quite sure I would see what the up side for them would be.  And in any case, we haven’t seen the proof that it is – that that is really what’s going on.

And emails coming out of the US embassy in Algiers are even more adamant about the Polisario’s anti-terrorism policies:

… the Polisario "government" severely punishes anyone caught trafficking persons or weapons that could aid terrorists. Polisario also restricts the refugees from accessing extremist websites in the camps. All such activities are seen as harmful and a liability to the Polisario's political goals. …They [extremists and terrorists] perceive the Sahrawi people as too close to the West and not pious enough, in part, these contacts believe, because Sahrawi religious leaders have encouraged Western NGOs to participate in seminars on inter-faith dialogue and women's issues.

What is even more bizarre about Boukhars’ attempt to pin the terrorist label on the Polisario is Morocco’s own lofty status as one of the largest incubators of terrorism in the world. In Boukhars’ own words from an earlier Brookings study, “The involvement of many Moroccans in international terrorism has raised pressing questions about the efficacy of the Moroccan regime’s strategy in preventing the spread of extremist ideology among the population.” In a similar vein, in the United States Department of State Country Reports on Terrorism 2010, we learn that despite huge Moroccan government counter-terrorism efforts “Reports of Moroccans either preparing to go or going to terrorist fronts in Somalia, Iraq, and Afghanistan to receive training from al-Qa-ida (AQ) linked facilitators and/or to conduct attacks suggest Morocco remained a source for foreign fighter pipelines.”  Likewise, Boukhars’ attempt to implicate the Polisario in narco-trafficking is a bit strange, given that Morocco itself is among the largest exporters of hashish in the world, coming out of its legendary hippie haven in the Rif Mountains.

Boukhars’ Incomprehensible Recommendations

The final part of Anouar Boukhars’ article I would like to comment on are his recommendations on “finding a way past the tensions,” as he puts it. The author summarizes his recommendations as follows:

Morocco’s proposal for autonomy for the Western Sahara and the country’s July 2011 constitution are the first steps toward a solution. Rabat’s friends in the West, especially the United States and France, must pressure Morocco to expedite a significant devolution of power to the Western Sahara to limit the threat of instability.

It is really no surprise that such a nonsensical plan should emerge from Anouar Boukhars’ faulty analysis of the Western Saharan crisis. First of all, Morocco’s proposal to impose autonomy under their sovereignty is clearly and unambiguously illegal under international law. And then there is the problem of getting the Polisario to buy into autonomy. They have already categorically rejected Morocco’s plan on many occasions, and after 40 years of the independence struggle I see almost zero possibility that they might accept it in the future. Furthermore, even If by some miracle the Polisario did accept it, I have no doubts that the Sahrawis would dump the Polisario and would continue the struggle with a far more radical leadership.

Instituting real autonomy and giving more power and democracy to the Western Sahara without an expression of true Sahrawi self-determination (a referendum with independence as an option) strikes me as complete lunacy. Morocco’s refusal to hold a referendum on independence, even if many of the illegal settlers are allowed to vote, tells me that Rabat completely mistrusts any Western Saharan electorate. Why Morocco should all of a sudden put their trust in the electorate of an autonomous and democratic Western Sahara is baffling. After all, the only thing that currently keeps a lid on the territory is Morocco’s totalitarian colonial rule enforced by more than 100,000 troops, or pretty close to one soldier per indigenous Sahrawi.

Any way you slice it, there are several hundred thousand Sahrawis out there who desire independence and are willing to die for it. Devolution of power to an embittered Sahrawi population with shattered dreams of independence would be a disaster for Morocco. Boukhars’ idea for the U.S. to expedite this devolution just doesn’t make sense.

So What’s Boukhars’ Story?

The emergence of Anouar Boukhars as a rabidly nationalistic pro-Moroccan voice on the Western Saharan issue is part of a much larger trend – namely the greater assertiveness in the U.S. of Moroccan-Americans and the Moroccan diaspora. Anouar Majid at the University of New England, Samir Bennis at Morocco World News, and Hassan Masiky at Morocco News Board are some of the others who have been particularly vocal on the Western Sahara. To a very large degree, the views of this group are similar: they tend to be democrats, support more democracy for Morocco, and are at times critical of the monarchy for not democratizing far and fast enough; they are critical of the corruption of the Moroccan elite and of Rabat’s heavy-handedness in restricting freedom of the press; they are deeply nationalistic; they believe that the Western Sahara has always been an integral part of Morocco; they strongly support Morocco’s autonomy proposal for the Western Sahara.

In “Simmering Discontent,” Boukhars describes the overwhelming support in Morocco for the King’s policies on the Western Sahara:

The Western Sahara is probably the only issue in Morocco that enjoys near-universal and unwavering popular support. For many Moroccans, renouncing their historical right to the Western Sahara—where thousands of soldiers have died and billions of dollars have been spent defending a territory that represents almost half the size of Morocco—would be a national tragedy. This deep-rooted belief in the righteousness of their cause has unfortunately led to the negation of the legitimacy of the other point of view.

This irrational, quasi-religious, and uber-nationalistic Moroccan worldview regarding the Western Sahara is shared by Boukhars and most of the other Moroccan American academics and intellectuals I am aware of.  Despite getting his doctorate in the U.S. and living here for over a decade, he is culturally incapable of overcoming his Moroccan identity. For Boukhars his greater Moroccan nationalism trumps all.  Thus, when we see him ignoring international law, totally misreading Sahrawi nationalism, fabricating Polisario terrorist dalliances, and supporting an illegal and unworkable autonomy proposal, he reveals his Moroccan blinders. In the end, all his arguments boil down to one thing. As he states in the conclusion of his article, “This insistence on independence for Western Sahara has always been ‘an unrealistic option,’….”

In a January 2011 Brookings Doha Center Analysis Paper by Boukhars titled "Political Violence in North Africa: the Perils of Incomplete Liberalization," the author “extends his deepest gratitude and appreciation to Ali O. Amar for facilitating multiple visits to Morocco and setting up a host of interviews with Moroccan government officials and civil society actors.” Wondering who this helpful and facilitating Ali O. Amar character was, I dug around a bit and lo and behold found myself once again smack in the middle of the murky world of Moroccan lobbyists. Ali O. Amar, it turns out, is a lobbyist for an outfit called New Dominion PAC (NDPAC), “the voice of Arab-Americans in Virginia.” Ominously, the founder of NDPAC, Saba Shami, was a paid lobbyist for Morocco in the late 90s and founded “Friends of Morocco in the US Congress.”  And furthermore, NDPAC’s largest donor since 2010 has been a group called the International Institute of Islamic Thought(IIIT), set up in the 1980s, according to a 2004 Washington Post expose, “largely by onetime [Muslim] Brotherhood sympathizers with money from wealthy Saudis.” IIIT has been the object of several FBI investigations and raids since the mid-1990s over ties to international terrorist organizations, which have resulted in a number of arrests and convictions. The more you dig into the machinations of the Morocco lobby, the weirder it gets. And with friends like Amar (Amar and Boukhars also co-authored an article in 2011 titled "Trouble in the Western Sahara"), it is no wonder Boukhars’ interviews in the occupied territory yielded such biased results.