Our Ceaseless Circus By FRANK BRUNI

May 13, 2013   Our Ceaseless Circus     By FRANK BRUNI

Four Americans died in Benghazi, Libya: people with unrealized hopes, unfinished plans, relatives who loved them and friends who will miss them.

But let’s focus on what really matters about the attack and its aftermath. Did Hillary Clinton’s presumed 2016 presidential campaign take a hit?

We live in a country lousy with guns and bloody with gun-related violence, manifest two weeks ago in a Kentucky 5-year-old’s fatal shooting of his 2-year-old sister, evident over the weekend in a hail of bullets at a Mother’s Day parade in New Orleans.

But let’s cut to the chase. Did Kelly Ayotte, the New Hampshire senator, safeguard or endanger her political future by casting one of the votes that doomed gun-control legislation in the Senate? And does the law’s failure mean that it’s time to write the obituary for Barack Obama’s presidency, which has more than 1,300 days to go, or can we wait — I don’t know — a week or maybe even two to do that?

Now we have a scandal at the Internal Revenue Service to factor in. And a scandal it is, in urgent need of a thorough investigation, which President Obama pledged at his news conference on Monday and which we’re very much owed.

But before we get a full account, let’s by all means pivot to the possible political fallout, politics being all that seems to matter these days. Will Republicans ever trust and be able to work with the administration again? (This is being asked as if there were all that much trust and cooperation in the first place.) Have they finally been handed the cudgel that can whack Obama and his crew into oblivion? Assess, discuss and please don’t forget to make predictions about the 2014 midterms.

It never gets better and may in fact be getting worse: the translation of all of the news and of all of Washington’s responses into a ledger of electoral pluses and minuses, a graph of rising and falling political fortunes, a narrative of competition between not just the parties but the would-be potentates within a party. On issue after issue, the sideshow swallows the substance, as politicians and the seemingly infinite ranks of political handlers join us journalists in gaming everything out, ad infinitum.

To follow the debate over immigration reform is to lose sight at times of the 11 million undocumented immigrants in limbo and the challenge of finding the most economically fruitful and morally sound way to deal with them and their successors. No, the real stakes are United States Senator Marco Rubio’s presidential aspirations. Will he pay a high price with the Republican base for pushing a path to citizenship? Or will he earn necessary centrist credentials?

And where does it leave him vis-à-vis Rand Paul and Ted Cruz, who are fellow Republican senators itching for prominence and are also hypothetical primary rivals? The next presidential election is three and a half years away — an eternity, really — but instead of putting a damper on speculation, that time span has encouraged it, letting a thousand theories and nearly as many contenders bloom.

We can wonder: if Clinton decided not to run, would a door open for another woman, Senator Kirsten Gillibrand of the New York? Just how well has Gillibrand positioned herself for such a turn? That story is already out there, and in it her record is framed largely in terms of her prospects for national office, as if one exists in the service of the other, as if the point of a Congressional seat is leveraging it into an even better, more regal throne.

What about the actual business of governing? Between all the preening, partisan cross-fire and of course fund-raising that consumes members of Congress, is there any space and energy for that?

Not much, to judge from either the sclerosis that now defines the institution or the obsessions of those of us in the media. Our quickness to publicize skirmishes and divine political jockeying abet both. Actors tend to do whatever keeps the audience rapt.

At Obama’s news conference, he breezed past the I.R.S. debacle too quickly, and I’m not sure why he’d stayed mum until then. He flashed too much self-righteous anger about the scrutiny of the Benghazi talking points, which strike to important matters of accountability and credibility.

But however self-servingly, Obama got one thing about Benghazi exactly right: what’s most vital, and what’s being obscured, is how we improve diplomatic security.

After all, the fates altered most profoundly by the attack weren’t his or Clinton’s or any other pol’s, but rather those of the four lost Americans: Christopher Stevens, Glen Doherty, Tyrone Woods and Sean Smith.

“We dishonor them,” Obama said, “when we turn things like this into a political circus.” Indeed. But it’s what we turn almost everything into.

Haiti Cholera Update: The UN Doesn’t Budge

Haiti Cholera Update: The UN Doesn’t Budge

by Kristen Boon

Following the UN’s rejection of a demand for compensation for Haiti Cholera victims earlier this spring, the Institute for Justice and Democracy in Haiti challenged the interpretation and application of Article 29 of the Agreement on Privileges and Immunities, and formally requested a meeting with UN officials to discuss Petitioners’ claims.

The Plaintiffs asked for the UN to respond within 60 days.  That period ended on July 6, and sadly but perhaps unsurprisingly, the UN has not budged.  The UN responded to claimants, reiterating that the claims would involve a review of political and policy matters.  The other communication forthcoming during this period was a July 5 letter under the signature of Ban Ki-Moon to Maxine Waters, a Member of Congress.  This letter responds to a separate letter by Congresswoman Waters about the cholera epidemic, and reiterates that the UN has determined the claims are not receivable under Section 29 of the Agreement on Privileges and Immunities.

Criticism of the UN’s response to the Cholera claims has been widespread. As I noted in an earlierpost, the reliance on Article 29, which distinguishes between public and private claims, is questionable.   In a recent paper on the topic, Professor Frederic Megret notes that one of the problems of the public / private distinction is that due to the “internal, confidential and unilateral” character of the review boards’ procedure the UN has never provided a clear definition of public or private.  A guide to UN practice is available here.

The lawyers for the plaintiffs state that they will now file a case against the UN in a domestic court.   I predict this will be an uphill battle.  Although the UN could and sometimes does waive its immunity under Section 2 of the Agreement on Privileges and Immunities, its posture thus far suggests it will not do so here.  Assuming the UN asserts its privileges and immunities as an affirmative defense before a domestic court, it will probably be successful   There are some decisions in which courts are amenable to limiting the immunities of IOs where there is no available forum, employment cases such as Waite and Kennedy are an example.   If a court were to follow the “no reasonable alternative” reasoning in the Haiti case, the plaintiffs might have a shot.

A recent case against the UN in the Netherlands involving the massacre at Srebrenica illustrates the strength of the UN’s privileges and immunities. In the Mothers of Srebrenica judgement, the Hague Court of Appeals affirmed the UN’s absolute immunity, but found the Dutch state responsible under international law.  This was a compelling set of facts to safeguard IO immunities to be sure:  a peacekeeping mission, the use of force, and an alternative respondent:  the Dutch state.

The takeaway, I believe, is that domestic courts will not provide a satisfactory alternative either. One mechanism that is available – at least in theory –  to the plaintiffs is a request for an ICJ advisory opinion under Article 30 of the Agreement, if someone else takes up the cause:

SECTION 30. All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.

Under this provision, a UN organ could make the request, although again, this seems unlikely