Category Archives: Courts and Judges

The Quiet Coup

Does William Barr appear to be easily manipulated?  Do you really think he lacks inner strength?  James Comey thinks so (James Comey: How Trump Co-opts Leaders Like Bill Barr).  How about Mike Pompeo and Stephen Miller?  Does Donald Trump have them acting out of character?  Do you think Lindsey Graham does his bidding out of fear?  Is Mike Pence really cowed into submission, or does Steve Bannon stroke Trump’s ego because he lacks intestinal fortitude?

All of the above have forceful personalities.  They didn’t arrive at their stations through lack of will or low self esteem. To suggest they’re being idealistically manipulated is nearsighted and dangerous.  William Barr, the others, and much of the Republican Congress appear sycophantic not out of fear or lack of self-control; they behave that way because they and Trump are kindred spirits.  They’re not just groveling; they like what Trump likes, they want what Trump wants, and they’re strong and willful enough to go after it, even if it requires a curtsy.

Have you heard about the coup?  There actually was one, but not the coup ballyhooed by Donald Trump.  The real “coup” started long ago in a barely noticed manner; it triggered the quiet rise of authoritarianism which now animates Trump’s presidency.  Amanda Taub laid it out in The Rise of American Authoritarianism.  The 2016 article (prior to Trump’s election) is both prescient and sobering.  It deserves a more thorough reading than what’s summed up in the following quick takeaways:

  • The authoritarian profile is characterized by the desire for order and a fear of outsiders.  It looks for a strong leader who promises necessary action to protect from outsiders and prevent feared changes.
  • Authoritarian personalities are drawn to the clearest and loudest authoritarian voice.
  • Covert authoritarian personalities (latent authoritarians) can be moved to overt authoritarian behavior.
  • The authoritarian personality increasingly sorts into the Republican Party (law and order and traditional values).
  • Authoritarians and latent authoritarians compose a large enough bloc to be politically powerful.
  • The authoritarian personality is not a new or Trump phenomenon; it will endure.

Religious institutions have authoritarian roots and thus provide low hanging fruit for aspiring autocrats (especially when spiritual morality has the depth of a bumper sticker).  Taub’s article provides inference of a religious component, but falls short of citing its paternalistic tradition and devotion to dogma and prophecy as instrumental in forging an authoritarian profile (ex. Why Trump Reigns as King Cyrus).  It does go far, though, in explaining and describing what’s seen in American politics today.  It also sheds light elsewhere.  There’s instability and much to fear around the globe: immigration, economic turmoil and disparity, religious/social upheaval, climate change, famine, and the ever present reality of violence and war.  It’s an opportune time for the rise of authoritarian and despotic leadership that we see arising throughout the world.

“The Rise of American Authoritarianism” article shows that authoritarian personalities have slowly sorted into the Republican Party over the last fifty years.  That bloc now seems to have reached a controlling influence: 55% of surveyed Republicans scored high or higher on the article’s authoritarian scale.  In blunt terms, half a century ago the party began the process of culturing authoritarian minded voters that now dominate the Republican electorate (and consequently, its primary elections).  More and more Republican representatives sent to Washington (or elsewhere) are apt to be sympathetic (or owing) to authoritarian values.  The profound result of all this is the election of a president who cultivates authoritarian passion.  Perhaps more ominous, though, is a contingent happening: court appointments.  Court nominations at all levels are ideally chosen as vectors of impartiality.  Everyone knows the opposite is true: candidates are chosen that appear most likely to express perceived bias in future judicial proceedings.  Trump and the Republican Party are shaping the judicial system accordingly: two appointments to the Supreme Court (a third is likely) and record setting confirmations of judges to federal appeals courts.  They won’t all, of course, perform as expected, but a general bias will take place beyond the expected conservative/liberal slant: with or without awareness, throughout the court systems, decisions will be made that reflect sympathy with authoritarian ideals.  The judges will be in place for decades and their decisions much longer.  Each one of those sympathetic decisions will pave the way for future authoritarian inroads.

It doesn’t take all that much representation to determine our country’s direction.  Somewhere between 50% and 60% of eligible voters cast ballots in presidential elections (about 40% for midterms).  Combining the two, perhaps roughly half of all eligible voters are shaping political destiny.  In 1992 Ross Perot, a third party candidate, received nearly 20% of the popular vote.  That was an anomaly; third party votes generally have significance only as spoilers in close races between the two major parties (Republican and Democrat).  Usually the winning presidential candidate receives roughly half of all votes cast.  Because nearly half the country takes a pass on Election Day, the winning candidate receives about half of a half (one quarter) of potential votes.  Within each party are factions vying for political influence.  To gain dominance, a faction need only appear to represent half (or even less) of perceived party supporters.  If that party wins, it means roughly half of a quarter (one eighth) of the eligible voting population may dominate in determining national direction.  That’s all it takes.  A president (and more) can be politically empowered by as little as an eighth (or less) of the voting population.  In the face of voter apathy, an energized eighth of the American electorate can democratically nudge the country down the slippery slope to authoritarianism.

If it’s contended that Trump has neither the time nor the tools to actually push the country into irrevocable authoritarianism, it’s sobering to view what’s transpired in a short amount of time.  To his political base and much of the Republican Party, Trump has quite successfully delegitimized the news media, the Department of Justice, political opposition, and judiciary constraints.  Through all the fiascos of his first two years, Trump still enjoys Republican popularity and support.  It’s not just how much he’s managed to do (or undo) in a short amount of time, but how little he’s had to do it with.  He’s not the most gifted politician, but what if he was?  Trump has demonstrated that an authoritarian base is here and ready to use.  A tainted judicial system is in place; it will progressively soften to autocratic appeals over the coming years.  What if one really gifted comes along: someone cunningly intelligent, someone with a coherent plan and political savvy, someone with charisma and charm?

Donald Trump didn’t create the wave, but he adeptly rides it.  Fifty some years ago the old Republican Party sought to seduce and control the authoritarian personality.  The seduction succeeded, but not the control; the old guard lost it.  The new Republican Party is now home and voice to American authoritarianism.  It won’t be silenced through an impeachment or a single presidential election cycle.  It’s here for the long haul.  Figure heads like James Comey and Morning Joe pundits portray Donald Trump as a larger than life puppet master, a maestro manipulating those around him into groveling postures of obsequiousness.  The conjecture provides nearsighted assurance that Trump has a unique presence and those around him are uniquely weak: all will be better when Trump is gone.  It’s dangerously complacent; it’s not seeing the forest for a tree.

They’re not at the gate.  The authoritarians are in the castle.  There’s no time left for wishful thinking or complacency.

Paul Manafort and the Crime of Not Provoking Russia

Paul Manafort has been convicted and sentenced to four years in prison for what the judge calls “white collar crimes” unrelated to “Russian collusion.” The mainstream press is in a state of shock. Surely, the morning cable anchors protest, he should have gotten 20 years!

He was friends with (“pro-Russian”) Ukrainian businessmen and politicians! He took fees for political consulting work with foreigners—that he never reported to the IRS! He committed bank fraud and tax fraud! And he may have had a role in the decision of the Republican National Committee at the Republican convention in July 2016, to modify a section of the program to remove reference to the provision of U.S. lethal military aid to Ukraine!

For two years that last accusation has been treated by the press as the truly damning one, the clear proof of a conspiracy to help Russia. There’s been a deliberate effort to generate outrage, where none really smolders in the masses’ breasts. How many people in this country feel strongly about the issue of Ukraine, could find the country on the map, have any knowledge in its history or any strong feelings about the matter of who should have sovereignty over Crimea?

The implicit argument is that not to give offensive weapons to the government in Ukraine at the time (then headed by Arseniy Yastenyuk, who had attained power through a U.S.-supported violent coup and the documented sponsorship of grotesque neocon beast Victoria Nuland) was anything other than the height of irresponsibility, if not treason. (“What more do we need than that?” demands the angry CNN “foreign policy analyst” or “national security analyst” while the hosts nod in agreement.), But this new regime in Kiev was riddled with fascists, was engaged in an effort to impose its armed authority over a rebellious ethnic Russian Donbas region, and might potentially be at war with Russia at any moment.

One could interpret the platform change as a rational retreat from an unnecessary provocation of Moscow. Why should that be so controversial or mysterious?

But to the talking heads of MSNBC and CNN, and maybe some on Fox, the minor move was sure, clear proof of Russian collusion. The party committee couldn’t have been applying mere common sense, and deference to a presidential nominee who’d expressed hope for normal relations with Russia. No, it had to have been hijacked by Russian agents.

In the real world, it’s just possible that Manafort (for whatever reasons) had educated Trump to some basic facts: Ukraine has long been ethnically divided between Ukrainians and (ethnic) Russians. The regime that seized power in February 2014 (toppling the democratically elected if highly corrupt one that Manafort had served) had completely alienated the Donbas region from the outset by its anti-Russian discriminatory measures, provoking the rebellion. As for the Crimean Peninsula, it had been Russian from 1785 to 1954, and the base of the Russian Black Sea Naval Fleet since the 1780s, so it wasn’t surprising that Moscow would want to re-assert sovereignty to prevent the very real prospect of losing its base to the relentlessly expanding NATO.

(It would have made sense for Bernie Sanders, had he won the Democratic nomination—that is, had we had a fair, not rigged, Democratic primary process—-to have stricken out any such language from a Democratic Party platform.)

I wrote a number of columns about Ukraine after the 2014 putsch opposing U.S. intervention in Ukraine and the U.S. effort, involving about $ 5 billion invested in what Victoria Nuland and Madeleine Albright both referred to publicly as “support for the Ukrainian people’s European aspirations.” (This was code for the drive of right-wing politicians in Ukraine to join EU after following the well-established pattern of former east bloc countries first joining NATO, then the European trade bloc.) Some of these were re-posted on Russian media. Am I thus guilty of collusion?

This matter of the non-support for military involvement in Ukraine, as a bad thing, is at the heart of the collusion case. The Manafort judge T.S. Ellis has been right to be skeptical, and to suspect that the prosecutors have been trying too hard to pin on Manafort a conspiracy charge implicating Trump and Russia. (Or a Trump staffer and a Russian businessman. Or a Trump aide and a Ukrainian businessman, or Russian-Ukrainian businessman, or Russian-American businessman.)

The fact of the matter is, as Graham Stack, a Fusion GPS researcher once hired to gather dirt on Manafort, pointed out last year: “Manafort was nothing like a pro-Kremlin influence on the former Ukrainian President Viktor Yanukovych… Instead, Manafort was one of the driving forces pushing Yanukovich towards signing the agreement with the EU. The Kremlin has every reason to hate him.”

That is, Manafort for his own business reasons wanted Ukraine to join the European Union, just like Victoria Nuland wanted to use the Ukrainian people’s (supposed) yearning to join the organization—that was then squeezing the life out of the Greeks and was subsequently rejected by the British—-as part and parcel of Ukraine’s planned entry into the anti-Russian military alliance. (This had been announced in 2008, the same year as NATO unveiled plans to welcome Georgia as well in the near term. That plan is on hold after the Russo-Georgia War of that year, just as plans to admit Ukraine are permanently on hold for fear—by the Germans, if not the U.S.—of provoking Russia.)

The motives of Nuland and Manafort were very different. She wanted a cause that would unite the opposition and facilitate regime change; he wanted a deal that would personally aggrandize him, given his investments in EU countries and in Ukraine. But  Russia was as of February 2014 opposed, for reasons Moscow stated clearly. (Basically, the cross-border economies are so deeply integrated, the cultures so similar and movement between the two countries so free that EU goods once in Ukraine would flow uncontrollably into Russia, damaging the Russian economy. Was the Russian stance unreasonable? Moscow offered Kiev a generous aid package, which Yanukovych accepted; meanwhile, Russia indicated it had no problem with Ukraine’s eventual EU membership once certain issues were resolved, and reiterated Putin’s aspiration for a Eurasia-wide free market to extend from Vladivostock to Lisbon. (Was this reasonable? Or does it “threaten our national interests” somehow?)

The Russians perhaps convinced Yanukovych that the austerity measures Ukraine would have to accept even for associate NATO membership would be destabilizing. So he withdrew from the provisional deal that had been pushed by Manafort.The  U.S.-backed  opposition declared Yanukovych a traitor loyal to Russia, and the government fell giving way to the current dysfunctional regime that lionizes fascists like Stephan Bandera.

One should definitely condemn Manafort for his past “consulting work”—with the likes of Ronald Reagan, George H. W. Bush, Bob Dole, Gerald Ford, Ferdinand Marcos, Mobutu Sese Seko, and Jonas Savimbi. (This list of clients includes at least five mass murderers.) But why single him out for assisting the former, democratically elected Ukrainian president in his negotiations with the EU? (Oh, because he didn’t report the income…the tax fraud thing…  Terrible indeed.)

The fact is, Manafort would not have been on trial had there not been an effort to seize on any kind of link between anyone around Trump and any one or thing Russian to substantiate the charge of “Russian interference” in the U.S. election. The thinly researched and argued January 2017 “Assessing Russian Activities”intelligence report on that “interference” was followed by a drive to investigate Trump campaign collusion with Russia, with a clear political mission to explain Hillary’s loss by attributing it to Trump’s (treasonous, secret) relationship with Putin.

It hasn’t led to anything yet but a meeting in a Manhattan cigar bar Aug. 2, 2016 between Manafort, his deputy Mike Gates and Konstantin Kilimnik, a Russian business partner of Manfort’s since 2005 (“thought to be linked to Russian intelligence”) that might have involved  the sharing of some polling data that by law should have been kept secret (or only shared with U.S. political operatives seeking to legitimately influence the outcome of the U.S. election).

Maybe some Russians used the information to influence targeted U.S. minds, using Facebook to throw the election result in Wisconsin. That would see horrible, would it not? An attack by other people on our democracy?! (While we never interfere, anywhere!)

The message is in any case clear. We should be outraged that “the Russians” “interfered” in “our election” tainting its result. We should view “our” elections as sacrosanct affairs, and be outraged that Trump staffers were willing to talk to Russian officials or private citizens, about the election or lots of other things, neglecting to report any contact with nationals of a country that (for some reason) we’re supposed to regard as an “adversary.”   Indeed, the overriding historical import of the movement to drive Trump from office is its re-enforcement of Russophobia in this country.

Trump is depicted as evil less due to his bigotry, misogyny, racism, Islamophobia, or corrupt business practices than due to his failure to do the right thing: take a hard line on Russia.

That means denouncing Putin, the way Hillary did. (Clinton as top U.S. diplomat called Putin a new Hitler, for re-annexing Crimea.) It means continuing to demand, as Obama did, that Russia withdraw from Crimea and cease whatever material support it provides to the separatists in the Donbas region or face continuing U.S. (and EU) sanctions. (These are hopeless demands, and are hurting Europe as well as Russia. Yet their maintenance is depicted as the only responsible route forward, and suggestions they be lifted portrayed as capitulation to evil.)

And it means howling in indignation when Paul Manafort, the closest thing to a “smoking gun” about collusion between Russia and Trump, only gets four years behind bars. It means disparaging Judge Ellis, noting his expressed concern about special prosecutors’ overreach and the possibility of the case becoming a “political weapon.”

News anchors visibly consternated by the sentence length seem troubled too by the likelihood that the Mueller probe will conclude with no real evidence. The dream of Trump being exposed as a Russian agent—promising sanctions relief after his victory in return for advance Russian notice about Wikileaks’ hacked emails publication schedule—-is fading.

In its place is the dream of replacing Trump in 2020 with an (appropriately) anti-Russian leader. This would mean one committed to NATO (which is still officially on track to include Georgia and Ukraine, to better encircle and provoke Russia); committed to the sanctions designed to hobble the Russian economy and prevent other countries from trading with it; committed to challenging Russia’s influence in the Middle East and depicting any such influence as “foreign interference” in a region that ought by rights be dominated by the U.S. as the world’s “exceptional” nation; and the insistence on the myth that the U.S. has “national interests” transcending class interests that need to be protected from Russia pursuing its own.

The appropriately anti-Russian leader the mainstream media seeks must of course be, preeminently, a proud capitalist. The restoration of normality must combine the new Russophobia (which has nothing to do immediately with anticommunism—since the Russian state is thoroughly capitalist and Putin’s party is both pro-market and pro-Orthodox religion—but draws on Cold War specifically anti-Russian tropes) with a clear repudiation of socialism.

*****

Saturday: Dave Gura on MSNBC expressing puzzlement that John Hinckenluper in a Joe Scarborough interview refused to call himself a capitalist (recognizing the negative connotations of that word among many young people).

Shame! the bipartisan panelists all agree; he should have proudly broadcast his capitalist status, and promoted the market as the key to creating jobs. If the Dems go with a “socialist” message, Trump will win! The very word socialism is Kryptonite!

These two phenomena—the mainstream ruling-class disappointment that the “Russian collusion” case is collapsing, and alarm at the soaring popularity of “socialism”—are related. To bring him down, one accuses the president of collusion with a country vilified throughout the Cold War; the USSR was targeted for its “socialism” but also attacked on the basis of ethnic stereotypes that remain useful to the anti-Russian propagandist. To make sure his successor is committed to the post-Cold War strategy of maintaining global hegemony and preventing the emergence of any rival, one must insure that someone who accepts capitalist imperialism takes office.

The morning TV news anchors, makers of public opinion, unite in agreement that it is unacceptable to question the motives of legislators who always vote in favor of Israel. (In this they in fact unite with Trump, who’s opportunistically charging the Democrats with antisemitism.) They also unite in agreeing it’s good the Hanoi summit between Kim and Trump failed, because it would be against U.S. interests to reduce sanctions until Pyongyang gets rid of it’s nukes (which it’s not going to do without sanctions relief, so the anti-Trump position is a virtual demand for war). These are some of the responsible positions of the anti-Trump mainstream.

My, what an awful, awful man! Such a Russian stooge! Jeopardizing our national security, serving Russian interests, by pulling out of Syria! (When did insistence on indefinite deployment of U.S. forced illegally in Syria become so mainstreamed?) And by talking about an Afghan pullout!

And his campaign chairman was meeting Russians! (Let us recall Manafort was chairman all of three months.) And Manafort was secretly meeting Russians, our adversaries!

Such outrage. Such unanimity. Such slavish devotion to capitalism, imperialism, “our heroes” in the U.S. military, sterile political correctness plus unquestioned devotion to Israel, and of course the systematic vilification of Russia. The trashing of both socialism and Russia, the latter having nothing to do with the former anymore, but what difference does it make?  We’re supposed to believe that both of them are Kryptonite, and that the choice before us is between the responsible capitalist and Russophobe (such as Joe Biden) and the capitalist and imagined Russophile traitor Donald Trump.

The Battle for Free Speech: Meghan Murphy vs. Twitter

Last week, Canadian feminist and journalist, Meghan Murphy, announced that she is suing Twitter. Having been permanently suspended from Twitter last Fall, Murphy’s lawsuit challenges Jack Dorsey’s contention made last September to the House Energy and Commerce Committee on Twitter Transparency and Accountability wherein he stated, “We don’t consider political viewpoints, perspectives, or party affiliation in any of our policies or enforcement decisions, period.” Taking aim at Twitter’s contradictory and unevenly-applied policy, Murphy’s lawsuit is legally challenging Twitter by accusing  this big tech company of censoring content made by users based on conflicting political perspectives (eg. conflicting with those of Dorsey or others at Twitter). Meghan confirms that Dorsey has acted against his own company’s mandate which was “to give everyone the power to create and share ideas and information instantly without barriers. Our business and revenue will always follow that mission in ways that improve and do not detract from a free and global conversation.”

In a video explanation, Murphy details the reasons for her lawsuit, outlining the many contradictions within Twitter’s exercise of its policies and its censorship of its users, most notably feminists and anyone who is gender critical. Murphy’s “crime”? She tweeted this: “Men are not women” and “How are transwomen not men? What is the difference between a man and a transwoman?” Reminiscent of the tenor preceding the Scopes Monkey Trial, this lawsuit is bound to mark the stark terrain between free speech and censorship while also legally cementing the fundamental right to discuss critically the pitfalls of politically acceptable speech when multi-billion tech firms are today sponsoring the main arenas of free speech: social media.

It’s not only conservative pundits who are perplexed by this double-standard of who gets to have a Twitter account (eg. Donald Trump and Louis Farrakhan), but also centrist publications are covering this event. But why are many left-wing news sources ignoring both Murphy’s banning from Twitter in addition to the more problematic elision of women’s rights around which this issue turns? And how will such a lawsuit affect the levels of responsibility that everyone from website/domain hosting companies to social media elites must maintain in order to keep in check with national laws that protect freedom of expression?

This lawsuit is bound to be a game-changer for everyone as it will challenge many basic “givens” about social media and the power of tech giants like Twitter. Without a doubt, Facebook, Instagram and Google, among others in this field, are playing close attention to this lawsuit, since what results from this lawsuit will potentially set out case law for a good many years.

For starters, tech giants are today controlling public opinion through censorship and how they excise certain individuals from public participation on what Twitter itself admits is not a private—but a public—platform. Dorsey is on record numerous times stating just this. When interviewed by Sam Harris about Meghan Murphy two weeks ago, Dorsey is asked about why Murphy was banned when Twitter has kept accounts by numerous people and groups that have posted inflammatory content. Dorsey’s answer contradicts what he told the U.S. government last fall: “I don’t believe that we can afford to take a neutral stance any more…I don’t believe that we should optimize for impartiality.” Harris then asks Dorsey, “Why not take refuge in the First Amendment?” as a comprehensive response. Dorsey’s response: “The enforcement of [our rules] is not always apparent….If you just look at one enforcement action, we don’t suspend people purely for saying one particular thing permanently.” While Dorsey exempts violent threats from this rule, it is clear that Dorsey is playing language games in how he has shifted Twitter’s role as arbiter of free speech: “I don’t think we can be this neutral passive platform any more.”  Effectively, Dorsey is advocating for censorship. Hence, the disconnect between what he said to Senate last year and where Twitter asserts itself as a public arena for the democratic sharing of ideas and against what Dorsey calls the “shutting down” of those who “weaponise” Twitter. He goes on to claim that Twitter’s role is more about what the platform “amplifies” and and what conversations it “gives attention to”—all this to couch removal of those who produce content that Twitter does not agree with.

Harris warns the listener before the interview that Dorsey is skilled at stepping around difficult questions, but as you listen to the interaction, it is painfully clear that Dorsey promotes censorship by stating that Twitter’s focus is on promoting certain ideas, not people. Still Dorsey is cognizant that people produce ideas, not the inverse. So in this interview he is slippery, plays with terminology and essentially justifies the removal of what he deem disagreeable viewpoints through the removal of the creators of such viewpoints. Renaming censorship as focusing on “what are we amplifying”, Dorsey has come up with a slick media spin for a metaphorical “re-education camp” for banned Twitter users.

As is the case for Murphy, social media is used for building a brand and career, marketing, research and company promotion. Murphy’s suit argues that being banned from Twitter negatively impacts her work as a journalist pointing to how news publications cite Twitter from The New York Times and beyond. Additionally, where the public geographic spaces of old are being deferred to social media, this brings up new challenges for what Dorsey has repeatedly called Twitter—a “public square.” In fact, in his Senate testimony last year, Dorsey used this term five times to refer to Twitter. So one must wonder why the public square is being privately controlled, or at the very least, why private companies hosting the public forum are exempt from upholding the laws which guarantee free expression.

Like Twitter, fellow tech giants are dangerously approximating the role of censors of free speech in their respective empires which they had claimed, years earlier, to have created to expand free speech. Dorsey clearly expresses a desire for “healthy conversation” but fails to uphold the promised platform for freedom of expression one year later.

Court Uses Law’s Absurdity to Allow Unfit Kavanaugh to Remain as Justice

The allegations contained in the complaints [against Judge Kavanaugh] are serious, but the Judicial Council is obligated to adhere to the Act. Lacking statutory authority to do anything more, the complaints must be dismissed because an intervening event – Justice Kavanaugh’s confirmation to the Supreme Court – has made the complaints no longer appropriate for consideration under the Act…. Because it lacks jurisdiction to do so, the Council makes no findings on the merits of the complaints.

— Order of the Judicial Council of the US Tenth Circuit, December 18, 2018

That is the sound that eight federal judges make when they know full well they’re doing something rotten but can’t bring themselves to defend the integrity of their own judicial system.

This order deals with complaints against federal judge Brett Kavanaugh, whose reputation for perjurious testimony is documented at least as far back as 2004. Last summer, the US Senate gave only cursory attention to whether Kavanaugh had repeatedly lied under oath on a variety of occasions, including the Senate judiciary committee hearings of 2018. Kavanaugh was a federal district judge from May 30, 2006, until October 6, 2018, when he was sworn in as a Supreme Court justice. At that time, the majority of 83 ethical conduct complaints addressing his behavior as a district judge had already been filed. In an unusual procedure, the Tenth Circuit Judicial Council has made these 83 complaints public on its website, while concealing the identities of the complainants.

The first batch of Kavanaugh complaints went to the DC Circuit, which passed them to Supreme Court Chief Justice John Roberts, who passed them on to the Tenth Circuit on October 10. At that time I wrote in Reader Supported News that the credibility of the US judicial system was the core issue in the Kavanaugh case:

The stakes are as high as they are simple: Will our court system choose to defend the position one of its own members or will it choose to defend the integrity of the US judicial system? There is no possibility it can do both with any credibility.

This is still true, as the Kavanaugh complaints appear headed back to the Chief Justice’s lap for further action, or inaction.

It took the eight judges of the Tenth Circuit Judicial Council just over two months to decide to do nothing about any of the 83 misconduct complaints against Judge Kavanaugh. Worse, the court’s order asserted in a strained legal argument that there was nothing that could be done legally about the 83 misconduct complaints against Judge Kavanaugh for one reason, and one reason only – because he had become Justice Kavanaugh. That’s the whole argument: that Kavanaugh gets to escape judicial accountability, and his getaway car is his seat on the Supreme Court. This is cultural madness and legal absurdity. What were those Tenth Circuit judges thinking?

What they actually do is create a legal fiction, starting with a false assertion in the first sentence: “Complaints of judicial misconduct have been filed against Supreme Court Justice Brett M. Kavanaugh….” In fact, most of the complaints were filed against Kavanaugh when he was a district judge. All the complaints cite judicial misconduct by Kavanaugh as a district judge. The false statement of reality is necessary to support the wonderland the judges need to escape dealing with what the court saw as the substance of the charges:

… that Justice [sic] Kavanaugh made false statements during his nomination proceedings to the D.C. Circuit in 2004 and 2006 and to the Supreme Court in 2018; made inappropriate partisan statements that demonstrate bias and a lack of judicial temperament; and treated members of the Senate Judiciary Committee with disrespect.

Much of this is beyond reasonable dispute. Both professional and lay witnesses abound. More than 2,400 law professors are on record opposing Kavanaugh as unfit to serve on the Supreme Court. Even Kavanaugh has acknowledged and quasi-apologized for some of the behavior in the 83 complaints. The Tenth Circuit judges acknowledge that the complaints are “serious” but then choose to make “no findings on the merits of the complaints.” How is this not deliberate judicial malpractice?

The answer to that is a legal quibble. According to the Tenth Circuit judges, the applicable statute for federal district judges is not applicable to Supreme Court justices. This is certainly true in the sense that if the complaints made against Kavanaugh referred to his behavior as a justice, the statute would not apply. The statute is the Judicial Conduct and Disability Act, 28 USC 351 et seq., which applies specifically to federal circuit judges, district judges, bankruptcy judges, and magistrate judges. It is one of the abiding scandals of American government that the Supreme Court is subject to no rules of ethics of its own and that Congress has done little to remedy the ridiculous result: that those with the most authority are held the least accountable. Or as the Tenth Circuit judges put it:

… the complaints must be dismissed because, due to his elevation to the Supreme Court, Justice Kavanaugh is no longer a judge covered by the Act. See 28 USC 352(b)(1)(A)(i). [emphasis added]

The court thereby creates a reality in which:

(1)  Over a period of 13 years as a judge, Kavanaugh committed objectionable acts;

(2)  Complaints were lawfully filed in response to his objectionable acts;

(3)  Some complaints were based on objectionable acts Kavanaugh committed before he was a circuit judge and subject to the Act, but these complaints were not dismissed;

(4)  Despite unambiguous jurisdiction at the time of the acts and unambiguous jurisdiction at the time of the filing of the complaints, the Tenth Circuit claims it’s helpless to act.

The Tenth Circuit does not explain, or even address, this absurdity. The court’s order argues that “The Act thus applies only to complaints that allege that one of those covered judges [which Kavanaugh was] ‘has engaged in conduct prejudicial to the effective and expeditious administration of the courts’ “ [which Kavanaugh patently did as a circuit judge]. The court holds that whatever Kavanaugh did as a judge that was complained about while he was still a judge can all be ignored because of an “intervening event,” such as a judge’s death. Kavanaugh did not die, although he kind of went to heaven. The court cites Rule 11(e) to justify its abdication of anything like the rule of law. Rule 11(e) in its entirety says:

Intervening Events. The chief judge may conclude the complaint proceeding in whole or in part upon determining that intervening events render some or all of the allegations moot or make remedial action impossible.

Kavanaugh’s elevation to the high court did not make any of the complaints moot. If anything, his elevation made them more pertinent than ever. Kavanaugh’s elevation to the high court hardly made remedial action impossible, although it probably makes remedial action more difficult. The court’s order cites four precedents for its action, three of which are irrelevant (involving judges who were transferredretired, or whose objectionable behavior was before becoming a judge). The one relevant citation involves several judges for whom the dismissed complaint is ruled “frivolous” as well as Supreme Court Justice Clarence Thomas, who is dismissed “for want of jurisdiction” as a sitting justice. The relevance here is about as slim as it gets, comparing one “frivolous” complaint to Justice Kavanaugh’s 83 complaints acknowledged by the court to be “serious.”

As described by the court’s order, the judicial council held no hearings, examined no evidence for its probative value, or otherwise investigated any of the 83 complaints against Kavanaugh. The court dismissed those complaints solely on the tenuous jurisdictional basis that they were out of the court’s reach. The court chose not to discuss any other possibly more judicious responses to the prickly Kavanaugh case, leaving the country still saddled with a justice palpably unfit for his office.

The court defended its conclusion by noting that Congress, in other instances, had indeed included justices under its statutes and offered as an example 28 US Code 455 – “Disqualification of justice, judge, or magistrate judge.” This statute is likely to become increasingly important as long as Kavanaugh remains on the bench, since it mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Kavanaugh’s televised performance of personal bias against Democrats and his stated conspiracy beliefs should be enough to disqualify him from a wide range of political cases. With 83 serious conduct complaints to be examined, it might take less time to assess what cases there are where Kavanaugh could reasonably avoid disqualification.

Nor is the impeachment of Justice Kavanaugh off the table. That’s a distant outcome under present circumstances, but as the court’s order notes in its penultimate paragraph:

The importance of ensuring that governing bodies with clear jurisdictions are aware of the complaints should also be acknowledged. See Nat’l Comm’n on Judicial Discipline and Removal, “Report of the Nat’l Comm’n on Judicial Discipline & Removal,” 152 F.R.D. 265, 342-43 (1994). Accordingly we request that the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States forward a copy of this Order to any relevant Congressional committees for their information. [emphasis added]

For now, the Republican judicial atrocity represented by Justice Kavanaugh sits undisturbed. The Tenth Circuit’s order is subject to appeal until January 29, 2019. As of January 9, a Tenth Circuit court spokesperson declined to say if any appeal had yet been filed, citing appellant confidentiality. One of the self-identified complainants, retired attorney Larry Behrendt, filed his five-page complaint October 2, concluding:

Judge Kavanaugh made repeated, inappropriate partisan statements to the Senate Judiciary Committee during his testimony on September 28, and is thus guilty of misconduct under the Act [28 USC 351ff] and the Rules. This misconduct is particularly egregious, as it took place in front of millions of people, at a time when scrutiny of the law and the judiciary is at its highest, and where Kavanaugh had a clear duty to display judicial temperament and deportment.

After the Tenth Circuit Judicial Council skirted any serious consideration of Behrendt’s complaint or the 82 others, the attorney published an op-ed explaining why he thought the court was wrong. He noted that the law is silent on how to handle a nexus of offenses under transitional circumstances like Kavanaugh’s. That hardly makes it likely that the intent of Congress was to give a lying partisan a free pass to the Supreme Court. Behrendt says he hasn’t decided whether to appeal the Tenth Circuit order. Maybe the Tenth Circuit will find some backbone. Maybe the chief justice will care more about his court’s integrity than the slippery hack who is its newest member. Until someone finds the courage to confront the truth of this legal fiasco the rest of us are stuck with a lifetime travesty of justice.

Glossip v. Gross: the Eighth Amendment and the Torture Court of the United States

On June 29, 2015 the United States Supreme Court argued in Glossip v. Gross that executions may continue with the use of lethal drug cocktails including the use of midazolam, an extremely painful drug, which in effect, burns to death the condemned by scorching internal organs. The use of midazolam, according to the Court, does not constitute “cruel and unusual punishment” under the Eighth Amendment. The Court found that condemned prisoners can only challenge their method of execution after providing a known and available alternative method.

In dissenting views justices opened the legal door for future challenges to the death penalty. In a meticulously crafted dissent Justice Stephen G. Breyer joined by Justice Ruth Bader Ginsburg initiated a timely counterargument to capital punishment. This was joined by Justices Elena Kagan and Sonia Sotomayor in diverging dissents of their own. The dissents were significant in that they outline the legal framework for the abolition of the death penalty based on the Eighth Amendment. Nevertheless, Sotomayor and Kagan argued in separate opinions that the use of lethal chemicals in executions was intolerably painful.

In turn this begged the question, for many, as to whether or not executions could ever be legitimized since executions must necessarily involve physical or mental pain. In all democratic societies, intentionally inflicting pain on another human being is torture.

This article addresses the Court’s concerns, expressed in Justice Samuel Alito’s majority opinion, that protests against Glossip’s anticipated execution was a “guerilla war” against the death penalty and that inflicting physical or mental pain intentionally on a human being is an acceptable component of execution and consistent with the U.S. Constitution.

*****

In Gregg v. Gerogia (1976) the Supreme Court of the United States ruled in a 7-2 decision that capital punishment did not violate the Eighth Amendment. This, in effect, reversed Furman v. Georgia (1972) which placed a moratorium on capital punishment in the United States. Robert Bork argued the case for the United States, that capital punishment and judicious use of the death penalty may be appropriate if carefully used. The Supreme Court argued that the Court was not prepared to overrule the Georgia legislature who has by law defined capital punishment an effective tool in the deterrence of future capital crimes and as an appropriate means of social retribution (retributive justice) against the most serious offenders

On April 29, 2015, the Supreme Court heard oral arguments in Glossip v. Gross, a case which challenged the use of the anti-anxiety drug midazolam in lethal injection executions. Petitioners argued in their brief to the Court that there is “undisputed evidence . . . that midazolam cannot reliably ensure the ‘deep, coma-like unconsciousness’ required where a State intends to cause death with painful drugs” (Brief for Petitioner at p. 29). Use of this drug to carry out executions by lethal injection does not comport with the Eighth Amendment’s prohibition on cruel and unusual suffering. In the last year alone, midazolam was used in several botched executions. Then on June 29, 2015, in a 5-4 decision, the Supreme Court issued its opinion in Glossip v. Gross, ruling that the anti-anxiety medication midazolam is constitutional for use as the first drug in a three-drug lethal injection formula. The case was brought by death row prisoners in Oklahoma, who argued that the state’s use of midazolam in this manner creates an “objectively intolerable risk of harm.”

The Glossip ruling evidenced two Justices directly challenging the legal foundation of capital punishment based on the Eighth Amendment which prohibits “cruel and unusual punishment.” Indeed, states such as Nebraska have recently abolished the death penalty based on the Eighth Amendment, making it the nineteenth state to do so, and the seventh to abolish capital punishment since 2007. Nonetheless, a majority of justices on the Supreme Court at the time – John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito – still maintain the constitutionality of the death penalty, as argued in Glossip.

In Baze v. Rees (2008), the Supreme Court reviewed the three-drug protocol then used for lethal injection by at least thirty states, in which the first drug, an short-acting barbiturate, rendered the prisoner unconscious, and the second and third drugs, a paralytic and potassium chloride, paralyzed the prisoner and stopped the heart. The Court noted that the first drug, the barbiturate, causes a “deep, coma-like unconsciousness” and therefore “ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs.” The Oklahoma drug protocol challenged in Glossip was also a three-drug protocol that uses a paralytic and potassium chloride as the second and third drugs, but it substitutes the benzodiazepine midazolam for the first drug, creating risk of “severe pain, needless suffering and a lingering death.”

As the Brief for Petitioner states:

In Baze, there was consensus that sodium thiopental, if properly administered, would produce deep coma-like unconsciousness. With midazolam, the opposite is true. Midazolam is not approved for use as the sole anesthetic for painful surgery. Clinical studies showed that midazolam does not reliably induce deep unconsciousness; when used in surgery, patients felt pain. The medical consensus is that midazolam cannot generate deep, coma-like unconsciousness. There is also no substantial practice among the states of using midazolam for lethal injections. Although sodium thiopental was widely used in lethal injections for years, only four states have used midazolam in an execution, and only two have tried to use it as anesthesia. On these undisputed facts, the use of midazolam to create deep coma-like unconsciousness presents an “objectively intolerable risk of harm” (Baze, 553 U.S.).

*****

Midazolam is not a barbiturate, but a benzodiazepine commonly used in pre-operative settings to alleviate anxiety. It is the shortest-acting drug in the same class of anti-anxiety drugs as Xanax, Atavan and Valium. All of the experts who testified in a three-day hearing in Oklahoma in December 2014, including the state’s expert, agree that midazolam has a ceiling effect, above which additional dosing has no additional effect, and no analgesic (pain-relieving) qualities (Joint Appendix to Brief for Petitioner, medical testimony from three-day hearing at pp. 199, 256, 274). The four states which have used midazolam in lethal injection executions are Arizona, Florida, Ohio and Oklahoma. Three executions that used midazolam triggered formal state investigations into why they did not go as planned (Brief for Petitioner at p. 31). In all of these botched executions, the prisoners initially appeared to lose consciousness, but then started moving and demonstrating signs of struggle and suffering.

Glossip v. Gross originated in federal court in Oklahoma as a response to the botched execution of Clayton Lockett on April 29, 2014. Charles Warner was originally one of the Petitioners, but the Court denied a stay of execution in his case, and he was executed using midazolam in a three-drug formula on January 15, 2015, just eight days before the Court accepted this case for review. On January 28, 2015, the Court stayed the executions of the three Petitioners, Richard Glossip, John Grant and Benjamin Cole, who are Oklahoma death row prisoners. In their Petition for Certiorari, Petitioners asked the Court to “provide urgently needed guidance” to prisoners and courts addressing new, experimental lethal injection protocols.

In her dissent from the denial of a stay for Charles Warner, Justice Sonia Sotomayor, joined by three other justices, recognized that the district court relied on a “single purported expert” who testified from suspect sources and in a manner that contradicts empirical data. Justice Sotomayor explained, “In contending that midazolam will work as the State intends, Dr. Evans cited no studies, but instead appeared to rely primarily on the Web site www.drugs.com. Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.”

Justice Breyer, who has served twenty years on the Supreme Court, never argued that the death penalty was unconstitutional. What both Breyer and Ginsburg argued was that new evidence over the past two decades had convinced them that the death penalty is costly, ineffective, and unreliable, not that it was necessarily inhumane. Their argument was based on cost-effectiveness, efficiency, and the real possibility of wrongful execution. More than one hundred death row inmates had their convictions or sentences dismissed in the last decade.

Nevertheless, in the majority opinion Justice Alito countered Sotomayor and Kagen’s view arguing that pain is simply part of what constitutes an execution. He states, “Because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”1 Breyer, nevertheless argued, that the broader issue of wrongful convictions takes greater precedence since executing innocent people can never be remediated. Moreover, Breyer and Ginsburg argued that “increasingly lengthy delays” of several decades between convictions and executions undermined the deterrence argument that executions deter crimes.2

Prior to Glossip, Justices Breyer and Ginsburg, in essence, echoed the opinion of Justice Harry Blackmun who, in 1994, argued that the death penalty in the United States was unable to be impartial toward minorities, specifically African Americans. Likewise, in 2008, Justice John Paul Stevens concluded that the death penalty was arbitrary and unreliable as a deterrent and ineffective in terms of punishment. However, in Glossip, Justices Sonia Sotomayor and Elena Kagen, while not joining in Breyer and Ginsburg’s dissent, nevertheless wrote what could arguably be the strongest dissent. The two justices claimed that the majority on the court allowed a “method of execution that is intolerably painful – even to the point of being the chemical equivalent of burning alive.”

*****

Alito’s position is one in which the inflicting of pain on others, as torture, is a necessary component of execution. This is a plausible position to hold. However, in that Alito and the majority argue that torture does not contradict the U.S. Constitution and the Eighth Amendment is subject to serious question.

*****

As stated earlier, torture is the act of deliberately inflicting severe physical or psychological pain on a human being by another as a punishment or in order to fulfill some desire of the torturer or force some action from the victim. Torture, by definition, is a knowing and intentional act; deeds which unknowingly or negligently inflict suffering or pain, without a specific intent to do so, are not typically considered torture. But under U.S. law, ignorance of the law is no excuse.

Torture has been carried out or sanctioned by individuals, groups, and states throughout history from ancient times to modern day, and forms of torture can vary greatly in duration from only a few minutes to several days or longer. Reasons for torture can include punishment, revenge, political re-education, deterrence and even coercion.

Alternatively, some forms of torture are designed to inflict psychological pain or leave as little physical injury or evidence as possible while achieving the same psychological devastation. The torturer may or may not kill or injure the victim, but torture may result in a deliberate death and serves as a form of capital punishment. Depending on the aim, even a form of torture that is intentionally fatal may be prolonged to allow the victim to suffer as long as possible, such as half-hanging or even inadvertently seizing in pain from lethal injections.

In other cases, the torturer may be indifferent to the condition of the victim or simply take delight in the sadistic gratification of torture in whatever form.

This indifference best fits the Alito majority. On one hand, indifference may be its most compassionate form of torture, while on the other it very well could mean that sociopaths exist on the highest court in the land. And in Glossip the Eighth Amendment is once again desecrated and Alito’s majority decision exalts the deviant status of the Torture Court of the United States.

  1. Glossip v. Gross, June 29, 2015, No. 14-7955, SCOTUS, I, A, Majority Opinion, Justice Alito, Roberts, Thomas, Kennedy, Scalia, Oyez, ITT Chicago-Kent College of Law, Illinois Institute of Technology.
  2. Death Penalty Focus, Working for Alternatives to the Death Penalty, May 31, 2013.

Canadian Legal System’s Complicity in Genocide

[T]he US government no less than the government of Canada is required to obtain the consent of the Indian nations’ before assuming jurisdiction to invade, occupy and govern the yet unceded Indian national territories.

– Bruce Clark, Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Rights (2018), p 25-26

I have only been physically inside a courtroom once, and that was to support a falsely accused colleague. It struck me that a typical western courtroom is set up not to exude justice but to intimidate, not just the accused but all people present, with the power of the State. The judge is invariably seated centrally on a dais, able to observe all that transpires below in the courtroom. When the judge enters, all present are required to stand, and none may be seated until permission is granted by his “honor.” When the proceedings are displeasing to her honor, she may strike a gavel on the dais to summon order in the courtroom.

Witness the power of the State: the power to mete out punishment for persons found guilty of something the State has determined to be illegal. It is a power that may be, and has been, wielded in what would be construed to be a thoroughly criminal manner in a moral universe. After all, gift giving and dancing were once deemed illegal by the Canadian State, and thus the tradition of First Nation Potlatches were banned until a sense of sanity and seeming propriety prevailed.

Such legal chicanery is not surprising to those who subscribe to Emery Dahlberg’s admonition that power corrupts.1 When law is unjust or when the punishment for wrongdoing is unjust, then the State has abused its power. The State’s power to prescribe justice can, moreover, be argued to represent State violence – in that the threat of punishment is used by the State to coerce behavioral compliance with the societal norms as dictated by the State.

To any informed person, Canada is undeniably a nation state erected on pre-existing nation states. The founding of Canada was unquestionably rooted in the genocide of the Original Peoples of the territory.2 Genocide is a heinous act often rooted in racism and supremacism. One group of humans considers itself privileged and accords itself rights, god-given or not, to the land and resources regardless of whichever people inhabit such territory or how long the territory has been the domain of its inhabitants.

That the law is not a moral construct is adduced by the fact that it has served as a vehicle for carrying out great crimes. The so-called New World was gifted by the Papal Bull Inter Caetera (1493) for division among the Spanish and Portuguese. Non-Christian savages had no rights according to the papacy. Albeit this was later superseded by the Papal Bull Sublimis Deus (1537). Nonetheless, the entirety of the western hemisphere remains controlled by elitist European settler-colonialists.3 Hence, Original Peoples find themselves stripped of sovereignty, ethnically cleansed from gargantuan swaths of unceded territory (reality check: who knowingly agrees to ceding a people’s territory anyway?), marginalized from decision-making regarding their lands, with many people having been forcibly assimilated into the dominating culture.

How to achieve actual justice for the dispossessed?

Bruce Clark is a man who made his living in the courtroom as a lawyer. He is an expert in law as applied to Indigenous peoples, having achieved a doctorate in comparative jurisprudence. Clark believes in the notion of applying law to achieve justice. Justice is a concept that is higher than the self, thus Clark took on the establishment to seek justice for his Indigenous clients. In the end he was punished for his zeal for justice.

I first became aware of Bruce Clark when he was providing counsel to the Sundancers at Ts’Peten (Gustafsen Lake). To protect the claimed rights of an American rancher to property on unceded Secwepemc territory, the provincial government resorted to para-military measures to evict the Sundancers; it was astoundingly reprehensible to me. Natural law was stood on its head by the provincial authorities. It is a matter that all “British Columbians” and “Canadians” should make themselves deeply informed about and act thereupon according to their consciences.

Bruce Clark is speaking and writing words extremely discomfiting to many non-Indigenous people. He is the author of Justice in Paradise and Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada. Just published is a collection of Clark’s subsequent writings, Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Rights. In Ongoing Genocide Clark presents the legal case for Indigenous sovereignty such that the layperson can readily grasp the arguments.

Clark examines the constitutional law, international law, and case studies based on the law of the invaders. When interpreted without bias, the compelling arguments of Clark strongly refute any credence to the newcomers’ doctrine of discovery, especially over lands previously inhabited for millennia. That invader courts should have any authority in the territory invaded is, on its face, risible.

While constitutional and international law should be preeminent, in Canada writes Clark, “The modus operandi of the legal establishment and its collaborating Indian accomplices is the suppression of the constitutional and international law that the establishment intentionally is breaking.” (p 15)

The corruption in the system is political, economic, and legal. Clark finds that the legal profession and the judiciary are complicit in misprision of treason, fraud, and genocide. (p 31) The legal system has politicized law through artifices such as “the rule of judicial discretion” substituted for “the rule of law.” (p 40) Clark criticizes, “The lie, recently invented by the Supreme Court of Canada in willful blindness, is that the aboriginal right is no more than ‘the right to be consulted’…” (p 142)

The legal system has shielded itself from scrutiny in its complicity with crimes committed. Writes Clark,

Immunity anywhere signifies the non-existence of the rule of law everywhere. But again that will not happen, because like Canada the legal establishment of the United States practices the same willful blindness to the unconstitutional genocide at the historical heart of its legal system. (p 50)

A number of court decisions are mistakes, per incuriam, and are not a binding precedent, writes Clark.

Clark cites legal documents and precedents, in particular, the Royal Proclamation of 1763 which sets aside the Hunting Grounds to Indian nations in which the Indians are to be unmolested.

Clark has tried to challenge the constitutionality of Canada’s usurpation of Indigenous territory. A Catch 22 has been designed to block this. Clark relates how the Supreme Court demands a lower court ruling on the matter while the lower courts insist it is a Supreme Court matter. (p 127) It is clear to Clark that an independent, third party adjudication is required, this having already been established in the 1703 case of the Mohegan Indians v. Connecticut for Indian land claims throughout British North America.

Pressing to have his legal arguments heard and a decision rendered in court ultimately cost Clark his career as a lawyer. But this was not the end of Clark or the quest for justice.

Clark remains dangerous to the system that upholds the dispossession. A Vancouver Sun diatribe against Clark revealed this. Clark is described as “too radical for B.C. courtrooms, and too rambunctious for the Ontario bar,” and “a colourful but fatally misguided militant zealot.” Yet the critic acknowledges, “… Clark’s well-articulated ideas are definitely threatening to the status quo.”

Clark touches upon many topics in Ongoing Genocide among them the effects of Indian Residential Schools, the Indian Act, the Truth and Reconciliation Commission (“… an expensive fraud upon the public but a cruel imposition upon the victims, who are encouraged to air their innermost suffering in the mistaken belief that it will lead to closure.” [p 20]), the so-called 60’s scoop of Indigenous children, and more.

The book concludes by pointing out an error in the Supreme Court Case Tsilhqot’in v. British Columbia, 2014 that is at odds with precedents such as the Royal Proclamation of 1763 and section 109 of the Constitution Act, 1867. In recent years the BC provincial government and federal government have apologized for the wrongful hanging of six Tsilhqot’in chiefs.4 Despite this, the BC government and Taseko Mines have continued to undermine Indigenous sovereignty, with repeated attempts to set up and operate a platinum mine in the Tsilhqot’in nation.

Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Rights puts forward the case over which Canadian law courts dare not deliberate. That should not preclude people of conscience becoming informed. Is Canada a just society? Read the book and judge for yourself. Then do something about it. Humanity requires many more brave warriors like Bruce Clark.

  1. I hold that Dahlberg’s aphorism should not be considered too simplistically – that it has many layers. E,g, there is probably something already present in the nature of many humans that leads them to covet power.
  2. See Tom Swanky, The Great Darkening: The True Story of Canada’s “War” of Extermination on the Pacific plus The Tsilhqot’in and other First Nations Resistance (Burnaby, BC: Dragon Heart Enterprises, 2012). Read review.
  3. A noteworthy exception is Warisata (Bolivia) which has been governed by an Indigenous president, Evo Morales, since 2006.
  4. Emilee Gilpin, “Minister Carolyn Bennett says exoneration of Tsilhqot’in chiefs opens door to reconciliation,” National Observer, 27 March 2018; Tom Swanky, “Exoneration of the Chilcotin Chiefs,” 10 September 2015.

Court in Crisis: How Much Partisan Justice Is Too Much?

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

— Judge Brett Kavanaugh’s Senate testimony, September 27, 2018

The integrity of the US judicial system is actively, albeit quietly, in play. A sitting federal judge, or more likely a panel of sitting federal judges, will be required in the near future to render an assessment of the honesty, integrity, and fitness of a Supreme Court justice to retain his lifetime appointment. The process and the result of the federal judges’ decision will, together, render a judgment as to the integrity of not just one Supreme Court justice but the federal courts as a national institution.

The stakes are as high as they are simple: Will our court system choose to defend the position of its own members or will it choose to defend the integrity of the US judicial system? There is no possibility it can do both with any credibility.

This is a morality play that began at a time uncertain, reaching back decades. The curtain opened as the president named Brett Kavanaugh to fill a seat on the Supreme Court despite – or because of – his long history of playing Republican hardball against the Clintons over Whitewater, against the Clintons over Monica Lewinsky, for George Bush over the Florida vote count in the 2000 election, for fake intelligence in the lead-up to the Iraq War, and for the White House in its efforts to spy on or torture anyone they chose. On occasion even as a federal judge, Kavanaugh has proved the perfect partisan.

Kavanaugh’s history was a concern when he was first nominated for the federal bench in 2004, but he managed then to get confirmed with only limited doubt about his ability to tell the truth under oath. This year, when his Senate confirmation hearings began on September 4, the concerns about his integrity were still there, but Kavanaugh was protected from his own record because the White House kept most of it secret. Kavanaugh’s refusal to give full and complete answers to questions about his career as a political operative prompted the first formal ethics complaints (even before the Dr. Christime Blasey Ford story broke). One of those complaints, filed by attorney J. Whitfield Larrabee on behalf of two clients – all “under penalty of perjury” – summed up the case against Kavanaugh this way:

Kavanaugh received stolen information taken from Democratic members of the Senate Judiciary Committee while he worked in the White House and he perjured himself while testifying about the matter in Congress in 2004, 2006 and 2018. Kavanaugh violated Canons 1 and 2 of Code of Judicial Conduct by committing crimes of dishonesty while he was a federal judge, by obtaining confirmation of his appointment as a federal judge by false and perjurious testimony, by concealing and covering up his criminal actions and by obstructing justice. He is unfit to serve as a judge by reason of his corrupt, unscrupulous, dishonest and criminal conduct.

This indictment is followed by five pages of factual allegations citing chapter and verse of some of Kavanaugh’s perjurious representations. The complaint concluded with a call for an investigation leading to a recommendation to Congress:

… that Kavanaugh be impeached in accordance with Rules 20 and 23 of the Rules for Judicial-conduct and Judicial-Disability Proceedings.

This is only one of a reported 15 or more formal ethics complaints made about Kavanaugh before the Dr. Blasey Ford farce or his confirmation to the Supreme Court. All the complaints made their way to the chief judge of the Court of Appeals, DC Circuit, on which Kavanaugh then sat. That chief judge is Merrick Garland, whose own appointment to the Supreme Court in 2016 was stonewalled by Mitch McConnell and Senate Republicans (illegitimately making the seat available to usurper Neil Gorsuch). Garland, faced with the complaints against Kavanaugh, did the non-partisan thing and recused himself, leaving the first assessment of the complaints to someone else.

According to an October 6 press release from DC Circuit judge Karen LeCraft Henderson (a Bush appointee and Kavanaugh’s colleague on the bench):

After the start of Judge Brett Kavanaugh’s confirmation hearings, members of the general public began filing complaints in the D.C. Circuit about statements made during those hearings. The complaints do not pertain to any conduct in which Judge Kavanaugh engaged as a judge. The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States.

This characterization is misleading if not just false. The complaints may only refer to false public statements (most of the complaints have not been made public), but those false public statements were, in fact, made by a sitting judge (just not while he was in court, apparently). Judge Henderson is implicitly arguing for a judicial standard that allows judges to lie whenever they want when they’re off the bench. This is not the standard of judicial temperament most of us thought we signed up for.

According to a letter from Chief Justice Roberts on October 10, he first heard officially about the Kavanaugh complaints starting on September 20. By October 6 he had received 15 complaints that were deemed worthy of review (it’s uncertain how many, if any, were dismissed as frivolous). In conveying the complaints to the chief justice, Judge Henderson, concerned “that local disposition may weaken public confidence in the process,” requested that the complaints be transferred to another circuit (as provided by Rule 26). In his October 10 letter, the chief justice did exactly that:

I have selected the Judicial Council of the United States Court of Appeals for the Tenth Circuit to accept the transfer and to exercise the powers of a judicial council with respect to the identified complaints and any pending or new complaints relating to the same subject matter.

The chief judge of the 10th circuit, based in Denver, is Timothy M. Tymkovich (a Bush appointee). He was also on the White House short list with Kavanaugh. And now he is, at least for the moment, in charge of 15 or more Kavanaugh complaints. As of October 15, he had not yet announced how the complaints would be handled. Nor has he publicly addressed his own political bias or his clear conflict of interest in the matter. Early reporting on the Kavanaugh complaints has been somewhat sketchy and sometimes dismissive.

On October 4, the House Progressive Caucus sent a letter to the president in a last-ditch effort to have the Kavanagh nomination withdrawn. The letter, signed by 39 members of Congress, outlined Kavanaugh’s partisan political past and his efforts to minimize or hide it. The letter demanded a full investigation of Kavanaugh’s record and promised impeachment proceedings if the Senate’s accusations of lying under oath were borne out. The letter concluded: “The credibility and reputation of the country’s highest judicial body is at stake.”

Even if the Kavanaugh complaints continue to get scant media coverage, the issue seems unlikely to go away. The Supreme Court is on trial and the chief justice knows it. He also knows that Rules for Judicial Conduct say unambiguously: “As long as the subject of the complaint performs judicial duties, a complaint alleging judicial misconduct must be addressed.” [emphasis added] The chief justice also knows that Kavanaugh’s partisan outburst (quoted at the top) seems to clearly violate the judicial conduct rule against “making inappropriately partisan statements.” The Supreme Court, led by a man with a reputation for defending institutional integrity, is faced with finding a way to justify its own probity – or join the rest of the wreckage of the Trump era.

Brett Kavanaugh Is Long Past His Sell-by Date as a Credible Human

I have been speaking with a number of people on the other side. We’ve had conversations ongoing for a while with regard to making sure that we do due diligence here….

— Senator Jeff Flake, Arizona Republican, September 28, 2018

When Jeff Flake says he’s been talking with people on the other side about doing due diligence regarding the Brett Kavanaugh Supreme Court nomination, that’s the sound of hypocrisy talking. Flake’s party destroyed due diligence the moment it decided to keep most of the records of Kavanaugh’s government service secret. Think about that. It doesn’t seem the Democrats thought much about it. They made some token complaints before rolling over and saying, in effect, that’s OK, this guy worked for the executive branch on polarizing, partisan issues for years, but we don’t really need to know what he did even though taxpayers were paying him to do it. Seriously, whatever his involvement with Vince Foster’s suicide or the Starr investigation into Monica Lewinsky or shutting down the vote count in the 2000 election or building a bogus case for an illegal war in Iraq or developing justifications for torture and other war crimes, we don’t need to know about any of that. And so we don’t.

A bipartisan conspiracy of silence was treated as a reasonable approach to vetting a chronic liar whose known views would take this country in the opposite direction from where a majority of the people appear to want it to go. With that corrupt two-party bargain in place, the risk of an actual, factual record for the candidate was too great a risk to take. And then Dr. Christine Blasey Ford finally emerged with a credible tale of Kavanaugh and Mark Judge, both drunk and laughing hysterically, trying to rape her in an eerie enactment of a “devil’s triangle” (which Kavanaugh, with presumably unintended irony, would later testify falsely was a “drinking game” – a game for the drinkers, perhaps, but not so much the victim). This was one of the lesser dark areas of Kavanaugh’s case that persuaded Jeff Flake to play both sides of the aisle to no clear purpose (continuing his September 28 statement):

And I think it would be proper to delay the floor vote for up to, but not more than, one week in order to let the FBI continue—to do an investigation, limited in time and scope, to the current allegations that are there, and limit in time to no more than one week….

Acting as if he were proposing something brave, Flake suggested postponing the floor vote, not the committee vote, a gesture that is so antithetical to itself as to be a moral cypher. If there is reason to postpone the floor vote, then there is at least as much reason to postpone the committee. The committee vote by definition pre-judges the floor vote. The committee vote maintains the nomination’s momentum, even as Flake pretends to pause for reflection while the FBI investigates.

But his proposal isn’t a good faith postponement. Flake does not seek a serious, credible FBI investigation that follows the facts wherever they might lead. Acting in patent bad faith, he calls for an investigation of limited time and scope, conditions that increase the likelihood of an inadequate investigation. And Flake calls for an investigation limited “to the current allegations,” which is tantamount to calling for a cover-up of any future allegations, or any further allegations developing out of current allegations. Having called for a process that could appear as fairness without significant risk of actual fairness, Flake concluded his statement:

And I will vote to advance the bill to the floor with that understanding.

Flake’s fellow Republicans professed to be shocked – shocked! – by his resort to subterfuge while moving the Kavanaugh nomination forward. Then they promptly went along with it. As did the president, with a still secret order implementing it. Flake may have imagined himself as the subject of a profile in courage, even though his action accomplished nothing. It was a profile in cowardice cloaked in hypocrisy. Little wonder this plan has been unraveling almost since it was put in place. Actual courage would have led Flake to vote against sending the nomination to the floor of the Senate until all Kavanaugh’s dishonesties, anger issues, and judicial temperament questions had been satisfactorily answered. A relatively simple example, when Kavanaugh says in his opening statement under oath:

Dr. Ford’s allegation is not merely uncorroborated, it is refuted by the very people she says were there, including by a longtime friend of hers. Refuted.

This is false. None of Dr. Ford’s allegations were refuted by anyone. Dr. Ford’s allegations have not been effectively rebutted by anyone. Kavanaugh has denied them. His supporters have said, in effect, I can’t imagine he’d do such a thing. But there is NO evidence that counters Dr. Ford’s allegations. And Kavanaugh knows that: right before claiming “refutation” Kavanaugh himself acknowledged that “the very people she says were there” have all said they don’t remember anything. Kavanaugh doesn’t mention that the “longtime friend” has said she believes Dr. Ford.

Why does this matter?

Any decent judge should know the difference between “refute” and “rebut,” and should take care not to assert refutation where none exists. If Kavanaugh is deliberately lying here, that should be disqualifying for service on the Supreme Court, or any court. If Kavanaugh is not lying, the dishonesty with which he presents and evaluates evidence should be disqualifying for his holding any judgeship.

Kavanaugh made a point of saying he wrote his own opening statement, with help from no one. He says he showed it to one former law clerk (who apparently had nothing to say about the misuse of “refute”). Kavanaugh insisted that it was all his own work, as was this passage:

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

That’s a pretty remarkable charge for a sitting judge to make without offering any supporting evidence. The record suggests it’s not entirely true (at best), since Dr. Ford tried to come forward in July, when Kavanaugh first appeared on the short list of possible nominees. The fact that Dr. Ford’s name was not public until September 17 was not her doing, and nothing in the record supports the notion that these events were “a calculated and orchestrated political hit.” Kavanaugh’s statement here smacks of raw, right-wing partisanship based not on fact but bias.

We do not want any more judges acting on bias rather than facts. We should have the FBI investigate Kavanaugh’s fervent claims. We should begin by believing him. We should provide a public hearing in which he may put forward any factual basis for his claim that he is the victim of an attempted political rape by unnamed attackers.

Creating a Suspect Society: The Scary Side of the Technological Police State

If, as it seems, we are in the process of becoming a totalitarian society in which the state apparatus is all-powerful, the ethics most important for the survival of the true, free, human individual would be: cheat, lie, evade, fake it, be elsewhere, forge documents, build improved electronic gadgets in your garage that’ll outwit the gadgets used by the authorities.

Philip K. Dick

It’s a given that Big Brother is always watching us.

Unfortunately, thanks to the government’s ongoing efforts to build massive databases using emerging surveillance, DNA and biometrics technologies, Big Brother (and his corporate partners in crime) is getting even creepier and more invasive, intrusive and stalker-like.

Indeed, every dystopian sci-fi film (and horror film, for that matter) we’ve ever seen is suddenly converging into this present moment in a dangerous trifecta between science and technology, Big Business, and a government that wants to be all-seeing, all-knowing and all-powerful—but not without help from the citizenry.

On a daily basis, Americans are relinquishing (in many cases, voluntarily) the most intimate details of who we are—our biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)—in order to navigate an increasingly technologically-enabled world.

As journalist Anna Myers notes:

Fingerprint readers, eye scans, and voice recognition are no longer just the security methods of high-tech spy movies. Millions of mobile phone, bank, and investment customers now have these technologies at their fingertips. Schwab uses voice recognition, Apple uses fingerprints, Wells Fargo scans eyes, and other companies are developing heartbeat or grip technology to verify user identity. Whether biometric technology will thrive or meet its demise depends not only on the security of the technology, but also whether the U.S. legal system will adapt to provide the privacy protections necessary for consumers to use it and for companies to invest in its development. Currently there is no federal law and only one state with a law protecting biometric information.

Translation: thus far, the courts have done little to preserve our rights in the face of technologies and government programs that have little respect for privacy or freedom.

Consider all the ways we continue to be tracked, hunted, hounded, and stalked by the government and its dubious agents:

By tapping into your phone lines and cell phone communications, the government knows what you say.

By uploading all of your emails, opening your mail, and reading your Facebook posts and text messages, the government knows what you write.

By monitoring your movements with the use of license plate readers, surveillance cameras and other tracking devices, the government knows where you go.

By churning through all of the detritus of your life—what you read, where you go, what you say—the government can predict what you will do.

By mapping the synapses in your brain, scientists—and in turn, the government—will soon know what you remember.

By mapping your biometrics—your “face-print”—and storing the information in a massive, shared government database available to bureaucratic agencies, police and the military, the government’s goal is to use facial recognition software to identify you (and every other person in the country) and track your movements, wherever you go.

And by accessing your DNA, the government will soon know everything else about you that they don’t already know: your family chart, your ancestry, what you look like, your health history, your inclination to follow orders or chart your own course, etc.

Of course, none of these technologies are foolproof.

Nor are they immune from tampering, hacking or user bias.

Nevertheless, they have become a convenient tool in the hands of government agents to render null and void the Constitution’s requirements of privacy and its prohibitions against unreasonable searches and seizures.

Consequently, no longer are we “innocent until proven guilty” in the face of DNA evidence that places us at the scene of a crime, behavior sensing technology that interprets our body temperature and facial tics as suspicious, and government surveillance devices that cross-check our biometrics, license plates and DNA against a growing database of unsolved crimes and potential criminals.

Increasingly, we are all guilty until proven innocent as the government’s questionable acquisition and use of biometrics and DNA to identify individuals and “solve” crimes makes clear.

Indeed, for years now, the FBI and Justice Department have conspired to acquire near-limitless power and control over biometric information collected on law-abiding individuals, millions of whom have never been accused of a crime.

Going far beyond the scope of those with criminal backgrounds, the FBI’s Next Generation Identification database (NGID), a billion dollar boondoggle that is aimed at dramatically expanding the government’s ID database from a fingerprint system to a vast data storehouse of iris scans, photos searchable with face recognition technology, palm prints, and measures of gait and voice recordings alongside records of fingerprints, scars, and tattoos.

Launched in 2008, the NGID is a massive biometric database that contains more than 100 million fingerprints and 45 million facial photos gathered from a variety of sources ranging from criminal suspects and convicts to daycare workers and visa applicants, including millions of people who have never committed or even been accused of a crime.

In other words, innocent American citizens are now automatically placed in a suspect database.

For a long time, the government was required to at least observe some basic restrictions on when, where and how it could access someone’s biometrics and DNA and use it against them.

That is no longer the case.

The information is being amassed through a variety of routine procedures, with the police leading the way as prime collectors of biometrics for something as non-threatening as a simple moving violation. The nation’s courts are also doing their part to “build” the database, requiring biometric information as a precursor to more lenient sentences. And, of course, Corporate America has made it so easy to use one’s biometrics to access everything from bank accounts to cell phones.

We’ve made it so easy for the government to target, identify and track us—dead or alive.

It’s like shooting fish in a barrel.

For instance, in March 2018, Florida police showed up at a funeral home, asked to see the corpse of 30-year-old Linus F. Phillip, and attempted to use the dead man’s finger to unlock his cell phone using his biometric fingerprint. (It turns out, cops unlocking cell phones with dead people’s fingerprints is now relatively common.)

In 2016, the Department of Justice secured a warrant allowing police to enter a California residence and force anyone inside to use their “biometric information to open their mobile devices.”

Two years earlier, in 2014, a Virginia court “declared it legal to use criminal suspects’ fingerprints to open up smartphones.”

This doesn’t even touch on the many ways in which the government is using our DNA against us, the Constitution be damned.

In 2015, the U.S. Supreme Court let stand the Maryland Court of Appeals’ ruling in Raynor v. Maryland, which essentially determined that individuals do not have a right to privacy when it comes to their DNA.

Although Glenn Raynor, a suspected rapist, willingly agreed to be questioned by police, he refused to provide them with a DNA sample.

No problem: Police simply swabbed the chair in which Raynor had been sitting and took what he refused to voluntarily provide. Raynor’s DNA was a match, and the suspect became a convict. In refusing to hear the case, the U.S. Supreme Court gave its tacit approval for government agents to collect shed DNA, likening it to a person’s fingerprints or the color of their hair, eyes or skin.

Whereas fingerprint technology created a watershed moment for police in their ability to “crack” a case, DNA technology is now being hailed by law enforcement agencies as the magic bullet in crime solving.

It’s what police like to refer to as a “modern fingerprint.”

However, unlike a fingerprint, a DNA print reveals everything about “who we are, where we come from, and who we will be.”

With such a powerful tool at their disposal, it was inevitable that the government’s collection of DNA would become a slippery slope toward government intrusion.

Certainly, it was difficult enough trying to protect our privacy in the wake of a 2013 Supreme Court ruling in Maryland v. King that likened DNA collection to photographing and fingerprinting suspects when they are booked, thereby allowing the government to take DNA samples from people merely “arrested” in connection with “serious” crimes.

At that time, Justice Antonin Scalia warned that as a result of the Court’s ruling, “your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Now, Americans are vulnerable to the government accessing, analyzing and storing their DNA without their knowledge or permission.

As the dissenting opinion in Raynor for the Maryland Court of Appeals rightly warned:

A person desiring to keep her DNA profile private, must conduct her public affairs in a hermetically sealed hazmat suit…. The Majority’s holding means that a person can no longer vote, participate in a jury, or obtain a driver’s license, without opening up his genetic material for state collection and codification.

All 50 states now maintain their own DNA databases, although the protocols for collection differ from state to state. That DNA is also being collected in the FBI’s massive national DNA database, code-named CODIS (Combined DNA Index System), which was established as a way to identify and track convicted felons and has since become a de facto way to identify and track the American people from birth to death.

Indeed, hospitals have gotten in on the game by taking and storing newborn babies’ DNA, often without their parents’ knowledge or consent. It’s part of the government’s mandatory genetic screening of newborns. However, in many states, the DNA is stored indefinitely.

What this means for those being born today is inclusion in a government database that contains intimate information about who they are, their ancestry, and what awaits them in the future, including their inclinations to be followers, leaders or troublemakers.

For the rest of us, it’s just a matter of time before the government gets hold of our DNA, either through mandatory programs carried out in connection with law enforcement and corporate America, or through the collection of our “shed” or “touch” DNA.

While much of the public debate, legislative efforts and legal challenges in recent years have focused on the protocols surrounding when police can legally collect a suspect’s DNA (with or without a search warrant and whether upon arrest or conviction), the question of how to handle “shed” or “touch” DNA has largely slipped through without much debate or opposition.

Yet as scientist Leslie A. Pray notes:

We all shed DNA, leaving traces of our identity practically everywhere we go. Forensic scientists use DNA left behind on cigarette butts, phones, handles, keyboards, cups, and numerous other objects, not to mention the genetic content found in drops of bodily fluid, like blood and semen. In fact, the garbage you leave for curbside pickup is a potential gold mine of this sort of material. All of this shed or so-called abandoned DNA is free for the taking by local police investigators hoping to crack unsolvable cases. Or, if the future scenario depicted at the beginning of this article is any indication, shed DNA is also free for inclusion in a secret universal DNA databank.

What this means is that if you have the misfortune to leave your DNA traces anywhere a crime has been committed, you’ve already got a file somewhere in some state or federal database, albeit it may be a file without a name.

In other words, you’re a suspect to be watched.

As Forensic magazine reports:

As officers have become more aware of touch DNA’s potential, they are using it more and more. Unfortunately, some [police] have not been selective enough when they process crime scenes. Instead, they have processed anything and everything at the scene, submitting 150 or more samples for analysis.

Even old samples taken from crime scenes and “cold” cases are being unearthed and mined for their DNA profiles.

Today, helped along by robotics and automation, DNA processing, analysis and reporting takes far less time and can bring forth all manner of information, right down to a person’s eye color and relatives. Incredibly, one company specializes in creating “mug shots” for police based on DNA samples from unknown “suspects” which are then compared to individuals with similar genetic profiles.

If you haven’t yet connected the dots, let me point the way.

Having already used surveillance technology to render the entire American populace potential suspects, DNA technology in the hands of government will complete our transition to a suspect society in which we are all merely waiting to be matched up with a crime.

No longer can we consider ourselves innocent until proven guilty. Now we are all suspects in a DNA lineup until circumstances and science say otherwise.

Of course, there will be those who point to DNA’s positive uses in criminal justice, such as in those instances where it is used to absolve someone on death row of a crime he didn’t commit, and there is no denying its beneficial purposes at times.

However, as is the case with body camera footage and every other so-called technology that is hailed as a “check” on government abuses, in order for the average person—especially one convicted of a crime—to request and get access to DNA testing, they first have to embark on a costly, uphill legal battle through red tape and, even then, they are opposed at every turn by a government bureaucracy run by prosecutors, legislatures and law enforcement.

What this amounts to is a scenario in which we have little to no defense of against charges of wrongdoing, especially when “convicted” by technology, and even less protection against the government sweeping up our DNA in much the same way it sweeps up our phone calls, emails and text messages.

Yet if there are no limits to government officials being able to access your DNA and all that it says about you, then where do you draw the line?

As technology makes it ever easier for the government to tap into our thoughts, our memories, our dreams, suddenly the landscape becomes that much more dystopian.

With the entire governmental system shifting into a pre-crime mode aimed at detecting and pursuing those who “might” commit a crime before they have an inkling, let alone an opportunity, to do so, it’s not so far-fetched to imagine a scenario in which government agents (FBI, local police, etc.) target potential criminals based on their genetic disposition to be a “troublemaker” or their relationship to past dissenters.

Equally disconcerting: if scientists can, using DNA, track salmon across hundreds of square miles of streams and rivers, how easy will it be for government agents to not only know everywhere we’ve been and how long we were at each place but collect our easily shed DNA and add it to the government’s already burgeoning database?

It’s not just yourself you have to worry about, either.

It’s also anyone related to you who can be connected by DNA.

These genetic fingerprints, as they’re called, do more than just single out a person. They also show who you’re related to and how. As the Associated Press reports:

DNA samples that can help solve robberies and murders could also, in theory, be used to track down our relatives, scan us for susceptibility to disease, or monitor our movements.

Capitalizing on this, police in California, Colorado, Virginia and Texas use DNA found at crime scenes to identify and target family members for possible clues to a suspect’s whereabouts.

Who will protect your family from being singled out for “special treatment” simply because they’re related to you? As biomedical researcher Yaniv Erlich warns:

If it’s not regulated and the police can do whatever they want … they can use your DNA to infer things about your health, your ancestry, whether your kids are your kids.

For that matter, how do you protect yourself against having your DNA extracted, your biometrics scanned and the most intimate details of who you are—your biological footprint—uploaded into a government database?

What recourse do you have when that information, taken against your will, is shared, stolen, sold or compromised, as it inevitably will be in this age of hackers? We know that databases can be compromised. We’ve seen it happen to databases kept by health care companies, motor vehicle agencies, financial institutions, retailers and intelligence agencies such as the NSA.

And what about those cases in which the technology proved to be wrong, either through human error or tampering?

It happens more often than we are told.

For example, David Butler spent eight months in prison for a murder he didn’t commit after his DNA was allegedly found on the murder victim and surveillance camera footage placed him in the general area the murder took place. Conveniently, Butler’s DNA was on file after he had voluntarily submitted it during an investigation years earlier into a robbery at his mother’s home.

The case seemed cut and dried to everyone but Butler who proclaimed his innocence.

Except that the DNA evidence and surveillance footage was wrong: Butler was innocent.

That Butler’s DNA was supposedly found on the victim’s nails was attributed to three things: one, Butler was a taxi driver  and so it was possible for his DNA to be transferred from his taxi via money or another person, onto the murder victim”; two, Butler had a rare skin condition causing him to shed flakes of skin—i.e., more DNA to spread around, much more so than the average person; and three, police wanted him to be the killer, despite the fact that the DNA sample was only a partial match, of poor quality, and experts at the time said they could neither say that he was guilty nor rule him out.

Unfortunately, we now find ourselves in the unenviable position of being monitored, managed, convicted and controlled by our technology, which answers not to us but to our government and corporate rulers.

This is the fact-is-stranger-than-fiction lesson that is being pounded into us on a daily basis.

While the Fourth Amendment was created to prevent government officials from searching an individual’s person or property without a warrant and probable cause—evidence that some kind of criminal activity was afoot—the founders could scarcely have imagined a world in which we needed protection against widespread government breaches of our privacy on a cellular level.

Yet that’s exactly what we are lacking.

Once again, technology has outdistanced both our understanding of it and our ability to adequately manage the consequences of unleashing it on an unsuspecting populace.

In the end, as I make clear in my book Battlefield America: The War on the American People, what all of this amounts to is a carefully crafted campaign designed to give the government access to and control over what it really wants: you.

The First Thing We Do

We can do it the easy way or we can do it the hard way. Romania did it the hard way. Moarte criminalului, death to criminals: armed revolution, then a series of epic Mineriads, with a mild-mannered IMF gent on hand to suck them dry. I was there after the revolution, in the long hiatus between the fourth and fifth Mineriads, and I was starving until someone told us where the soccer stars dine out.

It turned out the way it was bound to, with all the world-standard requisites of responsible sovereignty: The International Bill of Human Rights, the Rome Statute, and the UN Charter. Most core human rights, in fact, and an opposition that demands individual accountability of officials and police. Constitutional change by referendum. A restive and demanding civil society that leaves and returns to their country at will and assembles in public without fear. Rights and freedoms that you can only dream of in your US police state.

It happens again and again like a series of echoes. Leon Rosselson dug up the Diggers: The club is all their law, stand up now. We had San Francisco diggers back then too. But the time was not ripe. The world had not worked out how to help struggling peoples claim their sovereignty.

Now in the burble and slosh of another impending puke, in the countercultural hinterlands of the US a former governor’s son makes a so-so whiskey called Shay’s Rebellion and sells it for a hundred dollars a fifth. He may regret reminding us of it, because it looks like we’re going to do it the hard way. The club is all their law to keep poor folk in awe, That they no vision saw to maintain such a law. At such times history crumples and new jacqueries can touch and draw strength from the many, many old ones. From Xiang Yu, Ankhmakis, the Red Eyebrows, the Yellow Turbans, the Gay Troop, the Circumcellions, the Shocho debtors, the Cudgel Warriors, the Taiping, the Red Spear Society, the Mau Mau, the Shining Path, die Wende, The Black Panther Party, the Allamuchy Tribe, or the Zapatistas…

Maybe even from Sierra Leone: the Kamajors, the RUF, the West Side Boys. Sobels, soldiers by day and rebels by night. The war set the country back 60 years. Years after the war’s end I got a thousand calories on a good day. That was my first brush with wasting, the only time I ever had a sixpack. I wouldn’t recommend it as a slimming regime or as a means of liberation. Once the diamond merchants got involved, the uprising produced a generation of child soldiers, mass dismemberment, and the old Israeli sport of cutting pregnant mothers open to bet on the sex of the fetus.1 By now the country has rejoined the world. The international community responds to armed struggle by imposing law to curb the state predation that caused it. The new law grounds human rights not in nature or in god but in our recourse to rebellion.

But Americans are mired in a brutish, backward corner of the world. Primitive legal and political doctrines hold them back. You can see it from a height on world maps, stark as the nighttime dark of North Korea viewed from orbit.

This map shows the government’s commitments to core human rights, the minimal standards of the civilized world. By this criterion, the US government is crusted at the bottom of the barrel, at about the level of Myanmar, Malaysia, or South Sudan.

This map shows whether the government lets you appeal its actions to independent international human rights experts. The US government forbids you any recourse to the outside world. Again, the US is in the cellar, sunk deep in the bottom ten per cent with North Korea, Iran, China, and some other cats and dogs.

This map is for reporting compliance. In the few cases where the US government has made a commitment, does it report as agreed in good faith? In this respect the US attains mediocrity — the middle of the pack, trailing Russia, China, Saudi Arabia, and Turkey, but more dutiful than North Korea or Iran. Solidly second-rate: under review by the Committee Against Torture, the government turned its report in five years late. This was while CIA was running their secret gulag of “black site” death camps, so they took extra time thinking how to put it nicely.

This map is pass/fail, and our government fails. The US government has failed to issue standing invitations to UN human rights experts reviewing compliance in country.

This map shows whether government meets the world standard for institutionalized human rights under independent expert supervision. Here again the US is floundering in the bottom tier, the international equivalent of Animal House. Even Myanmar can do better than that.

It looks even worse when you dig into specific issues and urgent derelictions. So to sum up, here’s your government’s report card:

Respecting your human rights: F
Giving you recourse to the outside world: F
Reporting on state human rights compliance: C-
Permitting independent human rights examination: F
Instituting independent protection of human rights: F

Apply the minimal standards of the civilized world: the US government doesn’t measure up.

If this were your kid, would you waste college money on him? Our rulers’ abject failure coexists with an odd baseless self-regard. They seem to think they’re paragons of statecraft. The example of countries that know what they’re doing seems not to be enough. Acculturation doesn’t sink in. Like any other hopeless failure, the US government needs to be expelled.

How did the US legal system spawn such a bunch of throwbacks?

Twentieth-century US legal scholars took their cues from Prussian realists of the Iron Chancellor’s day. Rudolph Von Ihering told them to subordinate individual good to social purpose, because everyone agrees, doch, freedom is craps. Our obvious, universally self-evident common purpose is what matters (those days, the Franco-Prussian war was in the back of everybody’s mind). There’s no point setting limits on the state (forget John Stuart Mill.) Ihering thought of law as Darwin in action, only a deterministic sort of Darwin that always makes the bugs turn out the same, just right (Darwin explained everything back then.) Ergo, whatever the law says is right. It all comes down to The Worthlessness of Jurisprudence as a Science, as propounded by J.H. Von Kirschmann.

US legal scholars took worthlessness to heart. They liked that Teutonic jawohling. John Chipman Gray said law is not laws, law is just what judges say. Jerome Frank said, who are we kidding, there are no rules, law’s a bunch of random verdicts. Karl Llewellyn came right out and admitted that all sorts of bureaucrats make law, not just judges. And even today we see the awkward truth of Llewellyn’s statement in the fact that any frightened cop can shoot you dead. US jurisprudence thinks your right to life is nothing but the history of timid assholes armed and dressed in jaunty blue police costumes. Hessel Yntema said that courts are merely pageants in a sort of cathartic mystery religion. To control the ill effects of sacerdotal whimsy, Yntema urged judges to strangle themselves in precedent, groping for the least common denominator of consistency in a degenerating system. We can watch this tendency erupt when US bureaucrats try to drown world-standard human rights law in every idiotic thing that any crooked judge has ever said.

American jurists facing the fundamental question — Is the state for me, or do I exist for the state? – made their choice. They decided you exist for the state. The idea that humanity is not to be used, that the state is a means to human ends and not the other way around, that’s beyond them. They expect you to be selfless in the sense that Arendt cited as the key to success for totalitarian states. Our preeminent mediocrities Benjamin Cardozo and Roscoe Pound remind you not to count on law for protection or for anything else. Law is always changing so naturally lawmakers do what they want, untrammeled by law of any sort. Especially, in practice, when law asserts your human rights. US legal theory is a conscious rejection of the free will underlying human rights. Postwar history is the story of that losing battle.

America’s absolutist furuncle came to a head whenever judges faced clandestine crime. In US v. Curtiss Wright Export Corp. (299 US 304 (1936)), the Supreme Court exempted presidents from the Tenth Amendment where “foreign or external affairs” are concerned. In upholding an indictment for clandestine gun-running in Bolivia, the court cleared the way for state secrets and covert state crime. Harding appointee George Sutherland garbled Justice Story’s nuanced concept of popular sovereignty to grant the president something called ‘complete’ sovereignty. The Supreme Court clearly appreciates the ambiguity of this hackwork, as state criminals can invoke it to silence witnesses to state crimes, keep Congress in the dark, or frame political enemies with secret evidence. Thanks to Sutherland’s slipshod logic, the illegal arms trade the case interdicted is one of CIA’s most lucrative lines of business.

Sutherland also blithely gutted Constitution Article II, Section 2, Clause 2. So much for advice and consent. If you want to cut the Senate out of treaty-making powers, just say your agreement’s not a treaty, it’s a compact. This is convenient when CIA wants to infiltrate terrorists into the US, like Andreas Strassmeir, Sivan Kurzberg, or the 200 other Israeli saboteurs of 9/11. CIA makes an eyes-only intelligence liaison agreement. It’s none of your business, it’s a compact.

Once CIA came into being, judicial groveling peaked. In deference to “intelligence services whose reports are not and ought not be published to the world,” defender of freedom Robert Jackson decided that “It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.” [333 U.S. 103 (1948)] Our courts have affirmed CIA’s impunity, its absolute life-and-death power, and its arbitrary rule.

The Supreme Court’s last gasp of resistance to state crime came during US aggression in Cambodia. The international community had established a Special Committee of 35 states to define aggression. The definition of aggression, UNGA (XXIX) Agenda Item 86, was set to become customary international law when Elizabeth Holtzman and Air Force dissidents asked the court to halt US bombardment of neutral Cambodia. The Supreme Court fractured with countermanding individual orders when Justice Douglas enjoined the bombing. A panicked quorum fobbed the question off onto the Second Circuit, which threw up its hands and called illegal war nonjusticiable.

In washing its hands of US aggression, the court had to stay one step ahead of their hapless forbears Josef Altstötter, et al. UNGA Resolution 2330 (XXII) was expediting work on defining aggression in light of “the present international situation.” By 1973, the situation was little Phan Thị Kim Phúc running naked screaming, “Too hot, too hot!” with burning napalm plastered to her back. The hot potato of judicial acquiescence naturally fell to Thurgood Marshall, one of America’s first black faces in the limousines. With the dignified authority of Prissy birthin’ babies, our ultimate judges held that the bombardment “may ultimately be adjudged to have been not only unwise but also unlawful.”

The court backpedaled furiously from that unnerving brush with adult responsibility. From the ensuing frenzy of judicial forelock-tugging, including United States v. Nixon, Snepp v. United States, and Haig v. Agee, CIA cherry-picked the precedent and seized on “utmost deference” as their magic words to dispel unwelcome scrutiny. Along the way Judge Robert Vance poked his nose into CIA drug trafficking and got himself blown up, and that was that.2 Now the courts know their place.

CIA’s contempt of court is now a hallowed institution. Our idea of a judge is Clarence Thomas, the comically bent speak-no-evil curio that DCI Bush placed on the bench. Prospective lawyers need someone else to look up to. More than any other US legal institution, Harvard Law School bears the burden of taking smart people and brainwashing the sense out of them. Harvard ossified the profession with the case method in the kleptocratic nadir of the Gilded Age. By the 1980s, thirty years of CIA impunity and international disgrace had made US law a laughingstock worldwide. Harvard’s dubious prestige did not protect it from the general rot. Everyone there knew Watergate hero Archibald Cox as the goon who turned a mob of unbadged cops loose on the antiwar occupiers of University Hall. It was harder to get people to perform Paper Chase pomposity. So it was probably unavoidable that Harvard slipped up and hired some smart-aleck teachers.

These were the adherents of Critical Legal Studies or CLS. They helped professors’ secretaries form unions. They called war in Grenada illegal. One of their sympathizers went so far as to sue the USA for war on Nicaragua, and not in a pliant American rubber-stamp court like the Supreme Court where you knew what would happen, but in the World Court. They helped all sorts of powerless people who got screwed by their predatory state. The ferment spawned an enemy within, a revolutionary cell of student pranksters that called itself the Counter-Hegemonic Front. Someone started a Human Rights Program at the law school, undermining frantic statist efforts to wall off human rights from US law. The CLS thinkers made mincemeat of the traditional plodders’ trade-school verities. They showed how legal slogans and nostrums make lawyers into earnest tools of a criminal state.

For youthful exuberance liberated from the soul-murdering tedium of legal regurgitation, what did the case method hacks have to offer? Nothing. While CLS partisans backed students fighting Apartheid, the old guard shooed them off to spread kumbaya coaching soccer at white Afrikaner schools. So the would-be Kingsfields did what they could. In dreary bureaucratic campaigns the old mediocrities made an example of a few of the smartest, mobbing them in meetings, writing 80-page memos of eye-glazing scholastic invidia, running to the president to get them fired in double-secret panels. Their adversaries countered by winning hearts and minds: CLS professors showed greedy student sellouts how their rigorous methods could be applied to the cynical sophistry of corporate law.

US lawyers’ indoctrination came to be policed by the Federalist Society, founded by influential legal crook Ed Meese. The society fought human rights with their thought-stopping shibboleth “treaty law.” An uneasy ideological equipoise returned as Harvard degenerated in lockstep with its statist culture. Now an unprecedented mass of undergraduate cheaters, half the class, has been admonished or sent down and let back in. The last of them have issued from their educational peristalsis, swirled in ignominy, and made it big, but now the prized foreign princelings who valued the Harvard brand as a status symbol increasingly prefer European universities, where societies are less violent and civil-law traditions are more compatible with world-standard principles of comity like human rights.3 Fewer outsiders need learn to prop up a criminal enterprise like the USA. Historian Johan Huizinga showed how the ethos of chivalry became more and more rigid in a parasitic class of knights, and a joke to everybody else. That’s happening now, worldwide, with the doctrinal absurdities of US government and law. The whole world knows your lawgivers are shitheads.

In the Human Rights Committee’s 2014 review of the US, the chair gave a remarkable summation.4 “The idea of the country being a nation of laws, not of men, is hard-wired into the state’s civic DNA.” The consummate diplomat complimented and qualified, sought common ground, then proceeded to give the US delegation a remedial lesson in basic legal reasoning and reading comprehension.

Acknowledging the US government’s “principled approach to the interpretation of treaties,” the chair said, “I hope I am not being accused of being ironic if I express difficulty in understanding what the principles are.” He then gave them basic instruction in the black-letter law of legal interpretation, introduced the relevant provisions of the Vienna Convention on the Law of Treaties, and showed them how to apply it step-by-step through “a perfectly ordinary grammatical reading,” and if confusion somehow persists, how it is to be disposed of in terms of the stated object and purpose of the treaty. What he found really troubling was the example the US set. He left implicit that if every country interpreted treaties so dishonestly, law would degenerate to nonsense.

The chair then addressed the problem of impunity for US government torturers. “One can imagine that they might not be easily prosecuted as a result of spurious legal memoranda” from officials who are themselves protected by the impunity program. “You wouldn’t have to do an international human rights law course maybe to think that such a, such legal, advice deserved some question.” His exasperation mounted as he spoke of the government’s reflex resort to its all-purpose ritual incantation, national security, and its senseless state sadism, a seeming raison d’être of “victimizing victims.” He finally confessed himself baffled: “many of my colleagues might find it as difficult as I do to even begin to comprehend.”

The US government makes a fetish of law but they don’t know what they’re talking about. They seem to think law’s some sort of Alice in Wonderland off-with-her-head arrangement. He asked them what we all want to know: You people can’t be that stupid, What’s wrong with you?

At Penn Law, with its faintly subversive milieu, they used to sell tee shirts printed with Dick the Butcher’s comprehensive program from Henry VI. His wisdom passed into US mass culture in the form of the traditional couplets known as jokes:

What do you call a thousand lawyers chained together at the bottom of the ocean?
A good start.

Indeed, we call that fat hairy corpse at Cibolo Creek Ranch a start.

c.f.5

  1. Israeli arms dealer Simon Yelnik and his ilk sent arms to Liberia. Charles Taylor paid for them with diamonds extracted from Sierra Leone. The Israel Diamond Exchange traded and exported diamonds from Taylor’s diggers. Internment camps like Mapeh functioned as a miners’ hiring hall. Other diggers were impressed as needed in the bush.
  2. When the designated bomber’s conviction collapsed in spectacular prosecutorial malfeasance, he was trundled off to Alabama’s death row for safekeeping. He was executed this past spring, preventing the sort of awkward appeals that make a nuisance of lone nuts Sirhan Sirhan and James Earl Ray.
  3. And the crucial check and balance of saisit le juge.
  4. Human Rights Committee, 110th Session: United States, Part 3, beginning at 2:28.
  5. What is the difference between a lawyer and a rooster?
    When a rooster wakes up in the morning, its primal urge is to cluck defiance.

    – anent legal whistleblowers like Coleen Rowley. The maxim applies equally to consultants. John Weed was a virtuosic nuclear effects modeler who would unwind shooting pumpkins with M1 machine guns. Salt of the earth, in short, a latter-day Wat Tyler, the best of Castle Langley’s restive peasants. He suffers from a sense of right and wrong. Transparency activist and human rights defender John Weed, we thank you for your service. You are the tip of the tip of the iceberg.